[Federal Register Volume 59, Number 90 (Wednesday, May 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11085]
[[Page Unknown]]
[Federal Register: May 11, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-4883-3]
Campo Band of Mission Indians; Tentative Adequacy Determination
of Tribal Municipal Solid Waste Permit Program
AGENCY: Environmental Protection Agency.
ACTION: Notice of tentative determination on application of the Campo
Band of Mission Indians for full program adequacy determination, public
hearing and public comment period.
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SUMMARY: Section 4005(c)(1)(B) of the Resource Conservation and
Recovery Act (RCRA), as amended by the Hazardous and Solid Waste
Amendments (HSWA) of 1984, requires States to develop and implement
permit programs to ensure that municipal solid waste landfills (MSWLFs)
which may receive hazardous household waste or conditionally exempt
small quantity generator waste will comply with the revised Federal
MSWLF Criteria (40 CFR part 258). RCRA section 4005(c)(1)(C) requires
the Environmental Protection Agency (EPA) to determine whether States
have adequate permit programs for MSWLFs. EPA believes that adequate
authority exists under RCRA to allow Tribes to seek an adequacy
determination for purposes of sections 4005 and 4010.
Under separate authority of the Clean Air Act, EPA is reviewing an
application for a non-attainment area permit to construct a proposed
MSWLF on the Campo Reservation. There will be a separate public comment
period and decision on that application.
The Campo Band of Mission Indians (``Campo Band'') applied for a
determination of adequacy under section 4005 of RCRA. EPA reviewed the
Campo Band's MSWLF application and has made a tentative determination
of adequacy for those portions of the Campo Band's MSWLF permit program
that are adequate to assure compliance with the revised MSWLF Criteria.
These portions are described later in this notice. The Campo Band has
drafted revisions to the remainder of its permit program to assure
complete compliance with the revised MSWLF Criteria and gain full
approval. EPA has determined that the Campo Band's revised requirements
and emergency regulations, if fully adopted and affirmed before EPA
makes a final determination, would be adequate to ensure compliance
with the Federal Criteria.
Although RCRA does not require EPA to hold a public hearing on any
determination to approve a Tribe's MSWLF program, the Region has
scheduled a public hearing on this tentative determination. Details
appear below in the DATES section. The Campo Band's application for
program adequacy determination is available for public review and
comment.
DATES: All comments on the Campo Band's application for a determination
of adequacy must be received by the close of business on July 14, 1994.
A public hearing is scheduled for 7 p.m. to 9 p.m. June 30, 1994 in
Alpine, California. An open house is scheduled for 3 p.m. to 6 p.m. on
June 30, 1994 in Alpine to give the public an opportunity to discuss
the tentative approval before the hearing. At the hearing, EPA may
limit oral testimony to five minutes per speaker, depending on the
number of commenters. Commenters presenting oral testimony must also
submit their comments in writing at the hearing on June 30, 1994. The
hearing may adjourn earlier than 9 p.m. if all of the speakers deliver
their comments before that hour. Representatives of the Campo Band of
Mission Indians will be present at the open house and the public
hearing held by EPA on this subject.
ADDRESSES: Written comments should be sent to Ms. Christiane Camp, Mail
Code H-3-1, US EPA Region 9, 75 Hawthorne Street, San Francisco,
California 94105.
The public hearing will be held at the Alpine Elementary School
Auditorium, 1850 Alpine Blvd., Alpine, California 91901. The open house
will be held at the Alpine Elementary School Auditorium. Copies of the
Campo Band's application for adequacy determination are available at
the following addresses for inspection and copying: Campo Environmental
Protection Agency, Campo Tribal Hall, BIA Route 10, Highway 94, Campo,
California, 91906, telephone (619) 478-9369, from 9 a.m. to 4 p.m.
Mondays through Fridays; Campo Public Library, 31466 Highway 94, Campo,
California, 91906, telephone (619) 478-5945, from 9 a.m. to 1 p.m. and
1:30 to 4 Wednesdays, and 9 a.m. to 1 p.m. Fridays and Saturdays; US
EPA Region 9 Library, 75 Hawthorne Street, 13th Floor, San Francisco,
California, 94105, telephone (415) 744-1510, from 9 a.m. to 5 p.m.
Mondays through Fridays.
FOR FURTHER INFORMATION CONTACT: US EPA Region 9, 75 Hawthorne Street,
San Francisco, California 94105, Attn: Ms. Christiane Camp, Mail Code
H-3-1, telephone (415) 744-2097.
SUPPLEMENTARY INFORMATION:
A. Background
1. Solid Waste Permit Program Criteria
On October 9, 1991, EPA promulgated revised Criteria for MSWLFs (40
CFR part 258). Subtitle D of RCRA, as amended by the Hazardous and
Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. 6941-6949(a), requires
States (and, as discussed below, allows Indian Tribes) to develop
permitting programs to ensure that MSWLFs comply with the Federal
Criteria under part 258. Subtitle D also requires in section 4005 that
EPA determine the adequacy of State municipal solid waste landfill
permit programs to ensure that facilities comply with the revised
Federal Criteria. To fulfill this requirement, EPA has drafted and is
in the process of proposing a State/Tribal Implementation Rule (STIR)
that will provide procedures by which EPA will approve, or partially
approve, State/Tribal landfill permit programs. The Agency intends to
approve adequate State/Tribal MSWLF permit programs as applications are
submitted. Thus, these approvals are not dependent on final
promulgation of the STIR. Prior to promulgation of STIR, adequacy
determinations will be made based on the statutory authorities and
requirements. In addition, States/Tribes may use the draft STIR as an
aid in interpreting these requirements. EPA notes that regardless of
the approval status of a State/Tribe and the permit status of any
facility, the federal landfill criteria will apply to all permitted and
unpermitted MSWLF facilities.
EPA intends to approve State/Tribal MSWLF permit programs prior to
the promulgation of STIR. EPA interprets the requirements for States or
Tribes to develop ``adequate'' programs for permits or other forms of
prior approval to impose several minimum requirements. First, each
State/Tribe must have enforceable standards for new and existing MSWLFs
that are technically comparable to EPA's revised MSWLF criteria. Next,
the State/Tribe must have the authority to issue a permit or other
notice of prior approval to all new and existing MSWLFs in its
jurisdiction. The State/Tribe must also provide for public
participation in permit issuance and enforcement as required in section
7004(b)(1) of RCRA. Finally, EPA believes that the State/Tribe must
show that it has sufficient compliance monitoring and enforcement
authorities to take specific action against any owner or operator that
fails to comply with an approved MSWLF program.
EPA is further requesting Tribes to provide a statement of legal
authority from the Tribal Attorney General or its equivalent
demonstrating that the Tribe has adequate jurisdiction to regulate the
MSWLFs on the reservation. In addition, EPA is requesting a Tribe
seeking program approval to demonstrate that it: (1) Is federally
recognized; (2) has a government exercising substantial duties and
powers; and (3) is capable of administering a permit program. If the
Tribe has already demonstrated to EPA that it meets the first two of
these criteria in the context of the approval to operate another EPA
program, it need not do so again.
EPA is also requesting Tribes to provide an explanation of the
jurisdiction and responsibilities of all Tribal program implementing
agencies (including any State agency acting pursuant to an agreement
with the Tribe) and designation of a lead agency to facilitate
communications between EPA and the Tribe. These requests reflect the
criteria used in other environmental statutes to assess whether Tribes
may apply for program approval. If a Tribe has already provided
information and/or a legal statement on the Tribe's jurisdiction and
capability to operate another EPA program, EPA requests the Tribe to
provide only those additional material necessary to support its
application for MSWLF permit program approval.
EPA Regions will determine whether a Tribe has submitted an
adequate program based on the interpretation outlined above. EPA
expects States/Tribes to meet all of these requirements for all
elements of a MSWLF program before it gives full approval to a MSWLF
program. EPA plans to provide more specific criteria for this
evaluation when it proposes the State/Tribal Implementation Rule.
2. Tribal Programs
EPA is extending to Tribes the same opportunity to apply for permit
program approval as is available to States. Providing Tribes with the
opportunity to apply for adequacy for purposes of adopting and
implementing MSWLF permit programs is consistent with EPA's Indian
Policy. This Policy, formally adopted in 1984, recognizes Tribes as the
primary sovereign entities for regulating the reservation environment
and commits the Agency to working with Tribes on a ``government-to-
government'' basis to effectuate that recognition. A major goal of
EPA's Indian Policy is to eliminate all statutory and regulatory
barriers to Tribal assumption of Federal environmental programs.
Today's tentative determination to approve a Tribal MSWLF permit
program represents another facet of the Agency's continuing commitment
to the implementation of this long-standing policy.
EPA's interpretation of RCRA is governed by the principles of
Chevron, USA v. NRDC, 467 U.S. 837 (1984). Where Congress has not
explicitly stated its intent in adopting a statutory provision, the
Agency charged with implementing that statute may adopt any
interpretation which, in the Agency's expert judgment, is reasonable in
light of the goals and purposes of the statute as a whole. Id. at 844.
Interpreting RCRA to allow Tribes to apply for an adequacy
determination satisfies the Chevron test.
States generally are precluded from enforcing their civil
regulatory programs on Tribal lands, absent an explicit Congressional
authorization or State-Tribal agreement to do so. California v. Cabazon
Band of Mission Indians, 480 U.S. 202, 216 and n.18 (1987). Yet, under
the current statutory scheme, EPA generally is precluded from enforcing
the MSWLF criteria as well. Furthermore, Congress has not yet created
an explicit role for Tribes to implement the Subtitle D program, as it
has done under most other major environmental statutes amended since
1986 (Safe Drinking Water Act, Comprehensive Environmental Response
Compensation and Liability Act, Clean Water Act, Clean Air Act).
RCRA does not explicitly define a role for Tribes under sections
4005 and 4010 and reflects an undeniable ambiguity in Congressional
intent. Indeed, the only mention of Tribes anywhere in RCRA is in
section 1004(13), a part of the definitions of key terms in RCRA.
Section 1004(13) defines the term ``municipality'' to mean;
a city, town, borough, county, parish, district or other public body
created by or pursuant to State law, with responsibility for the
planning or administration or solid waste management, or any Indian
tribe or authorized tribal organization or Alaska Native village or
organization[.]
Id. (emphasis added). The term ``municipality'', in turn, is used
in sections 4008(a)(2) and 4009(a) of RCRA with reference to the
availability of certain Federal funds and technical assistance for
solid waste planning and management activities by municipalities. Thus,
Congress apparently intended to make explicit that Tribes could receive
funds and assistance when available in the same manner as municipal
governments. However, Congress did not explicitly recognize any other
role for Tribes under other provisions. There is no accompanying
legislative history which explains why Tribes were included in section
1004(13) and nowhere else.
EPA does not believe that Congress, by including Tribes in section
1004(13), intended to prohibit EPA from allowing Tribes to apply for an
adequacy determination under subtitle D. First of all, it is clear that
Tribes are not ``municipalities'' in the traditional sense. Tribes are
not ``public bodies created by or pursuant to State law.'' Indeed,
Tribes are not subject to State law except in very limited
circumstances. Cabazon, supra. Indian Tribes are sovereign governments
whose authority is subject only to Congressional approval. Worcester v.
Georgia, 31 U.S. (10 Pet.) 515 (1832). There is no indication in the
legislative history that Congress intended to abrogate any sovereign
Tribal authority by defining them as ``municipalities'' under RCRA,
i.e., that Congress intended section 1004(13) to subject Tribes to
State law for RCRA purposes. Moreover, it is a well-established
principle of statutory construction that Federal statutes which might
arguably abridge Tribal powers of self-government must be construed
narrowly in favor of retaining Tribal rights. F. Cohen, Handbook of
Federal Indian Law, 224 (1981); See, e.g., Ramah Navajo School Board v.
Bureau of Revenue, 458 U.S. 832, 846 (1982).
EPA believes that inclusion of Indian Tribes in section 1004(13)
was a definitional expedient, to avoid having to include the phrase
``and Indian tribes or tribal organizations or Alaska Native villages
or organizations'' wherever the term ``municipality'' appeared, not to
change the sovereign status of Tribes for RCRA purposes. Second, given
the limited number of times the term ``municipality'' appears in RCRA,
it does not appear that Congress intended to define an all-inclusive
role for Tribes for all potential statutory purposes.
The ambiguity in RCRA regarding Indian Tribes also is evident from
the structure of the 1984 Amendments. As mentioned earlier, Congress
expressed a strong preference for a State lead in ensuring compliance
with 40 CFR part 258, in that Section 4005(c) allows EPA to enforce the
criteria only after a finding of inadequacy of the State permit
program. Yet, the legislative history of the 1984 Amendments does not
suggest that Congress intended to authorize States to implement such
programs on Tribal lands or that Congress intended to override the
general legal principle that States generally are precluded from such
implementation. Cf. Washington Dept. of Ecology v. EPA, 752 F.2d 1465
(9th Cir. 1985) (RCRA Subtitle C does not constitute an explicit
delegation of authority to States to implement hazardous waste programs
on Indian lands); accord, Nance v. EPA1, 645 F.2d 701 (9th Cir.
1981). Thus, Congress has otherwise put States in a primary role for
the MSWLF program, yet on Indian lands has failed to define how Tribes
participate where States lack authority. EPA believes it necessary to
harmonize the conflicts and resolve the ambiguities created by these
provisions.
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\1\ By today's action EPA does not intend to prohibit a State
from applying for approval of its MSWLF program extending to Indian
lands. However, the State would either have to enter into an
agreement with a Tribe or show the existence of specific
Congressional authorization or independent civil regulatory
authority to regulate these landfills. See, e.g., 53 FR 43080 (1988)
(Washington application to regulate UIC wells on Indian lands).
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EPA concludes that interpreting Sections 4005, 4008, and 4010 to
allow Indian Tribes to seek an adequacy determination is reasonable.
Several factors enter into this determination. First, as discussed in
the previous paragraph, this approach is consistent with subtitle D
because it preserves Congressional intent to limit the Federal
government's role in MSWLF programs. Absent the opportunity to seek a
determination of adequacy, there would be few or no adequate permit
programs in place on Indian lands (because the State lacked the
authority and the Tribe could not apply for program approval),
potentially resulting in the Federal government assuming a substantial
role in MSWLF programs by having EPA enforce 40 CFR part 258 directly.
In addition to expanding the Federal role, failure to approve
Tribal programs would deny Tribes the option available to approved
States of granting their MSWLF owners and operators flexibility in
meeting the requirements of 40 CFR part 258. The revised Federal
criteria (40 CFR part 258) would be implemented without benefit of an
EPA approved permit process. All MSWLFs on Indian Lands, whether Tribal
or private, would be in a disadvantaged position relative to other
MSWLFs, being unable to take advantage of the flexibility that Congress
built into Sections 4005 and 4010 and that EPA has incorporated into 40
CFR part 258. By approving Tribal permit programs, however, MSWLFs on
Indian Lands would be under the jurisdiction of the closest sovereign
with sufficient permitting authority, i.e. the Tribe.
EPA, in accordance with its Indian Policy, has worked to ensure
that Congress revises other environmental statutes (e.g., the Clean
Water Act), at the earliest opportunity to define explicitly the role
for Tribes under these programs. Yet, EPA also has stepped in on at
least two occasions to allow Tribes to seek program approval despite
the lack of an explicit Congressional mandate. Most recently, EPA
recognized Indian Tribes as the appropriate authority under the
Emergency Planning and Community Right-to-Know Act (EPCRA), despite
silence on the Tribal role under EPCRA. 55 FR 30632 (1990). EPA
reasoned that since EPCRA has no federal role to backup State planning
activities, failure to recognize Tribes as the authority under EPCRA
would leave gaps in emergency planning on Indian lands. 54 FR 13000-
130001 (1989).
EPA filled such a statutory gap much earlier as well, even before
development of its formal Indian Policy. In 1974, EPA promulgated
regulations which authorized Indian Tribes to redesignate the level of
air quality applicable to Indian lands under the Prevention of
Significant Deterioration (PSD) program of the Clean Air Act in the
same manner that States could redesignate for other lands. See Nance v.
EPA, 645 F.2d 701 (9th Cir. 1981) (upholding regulations). EPA
promulgated this regulation despite the fact that the Clean Air Act at
that time made no reference whatsoever to Indian Tribes or their status
under the Act.2
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\2\ Congress ratified EPA's regulation in 1977 by explicitly
authorizing Tribes to make PSD redesignations; the 1990 Amendments
to the Clean Air Act authorize EPA to allow Tribes to apply for
approval to implement any programs EPA deems appropriate.
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One Court already has recognized the reasonableness of EPA's
actions in filling such regulatory gaps on Indian lands. In Nance,
supra, the U.S. Court of Appeals for the Ninth Circuit affirmed EPA's
PSD redesignation regulations described in the previous paragraph. The
Court found that EPA could reasonably interpret the Clean Air Act to
allow for Tribal redesignation, rather than allowing the States to
exercise that authority or exempting Indian lands from the
redesignation process. Id. at 713. The Court noted that EPA's rule was
reasonable in light of the general existence of Tribal sovereignty over
activities on Indian lands. Id. at 714.
Today's tentative determination to approve a tribal MSWLF permit
program is analogous to the rule upheld in Nance. EPA is proposing to
fill a gap in jurisdiction on Indian lands. As with the redesignation
program, without recognition of Tribal MSWLF programs, there would be
no acceptable way to implement at the Federal level a key statutory
provision, i.e., the MSWLF permitting process.
Furthermore, the case law supporting EPA's interpretation is even
stronger today than at the time of the Nance decision. First, the
Supreme Court reaffirmed EPA's authority to develop reasonable
controlling interpretations of environmental statutes. Chevron, supra.
Second, the Supreme Court has emphasized since Nance that Indian Tribes
may regulate activities on land belonging to the Tribe or held by the
United States in trust for the Tribe. Montana v. United States, 450
U.S. 544, 557 (1981). All land within the Campo Reservation is tribal
trust land.
In the case of MSWLFs, EPA believes that improperly maintained
MSWLFs would not be protective of human health (including that of
Tribal members) and the environment (including Indian lands). Tribes
are likely to be able to assert regulatory authority over landfills on
tribal lands to protect these interests. Allowing Tribes to seek
adequacy would reflect general principles of Federal Indian law. Thus,
as in Nance, EPA believes that allowing Tribes to apply for program
approval reflects the sovereign authority of Tribes under Federal law.
To have its MSWLF permit program deemed adequate by EPA, a tribe
must have adequate authority over the regulated activities. Indian
reservations include lands owned in fee by non-Indians. The extent of
Tribal authority to regulate activities by non-Indians on such land has
been the subject of considerable recent discussion. The test for civil
regulatory authority over nonmember lands within Indian reservations
was stated in Montana v. U.S., 450 U.S. 544, 565-66 (1981) (citations
omitted):
To be sure, Indian tribes retain inherent sovereign power to
exercise some forms of civil jurisdiction over non-Indians on their
reservations, even on non-Indian fee lands. A tribe may regulate * *
* the activities of non-members who enter consensual relationships
with the tribe or its members, through commercial dealing,
contracts, leases, or other arrangements. * * * A tribe may also
retain inherent power to exercise civil authority over the conduct
of non-Indians on fee lands within its reservation when that conduct
threatens or has some direct effect on the political integrity, the
economic security, or the health or welfare of the tribe.
In Brendale v. Confederated Tribes and Bands of the Yakima Indian
Nation, 492 U.S. 408 (1989), the Court applied this test. Both the
State of Washington and the Yakima Nation asserted authority to zone
non-Indian real estate developments on two parcels within the Yakima
reservation, one in an area that was primarily Tribal, the other in an
area where much of the land was owned in fee by nonmembers. Although
the Court analyzed the issues and the appropriate interpretation of
Montana at considerable length, the nine members split 4:2:3 in
reaching the decision that the Tribe should have exclusive zoning
authority over property in the Tribal area and the State should have
exclusive zoning authority over non-Indian owned property in the fee
area.
Specifically, the Court recognized Tribal authority over activities
that would threaten the health and welfare of the Tribe, 492 U.S. at
443-444 (Stevens, J., writing for the Court); id. at 449-450 (Blackmun,
J. concurring). Conversely, the Court found no Tribal jurisdiction
where the proposed activities ``would not threaten the Tribe's * * *
health and welfare.'' Id. at 432 (White, J., writing for the Court).
Given the lack of a majority rationale, the primary significance of
Brendale is in its result, which was fully consistent with Montana v.
United States.
In evaluating whether a Tribe has authority to regulate a
particular activity on land owned in fee by nonmembers but located
within a reservation, EPA will examine the Tribe's authority in light
of the evolving case law as reflected in Montana and Brendale and
applicable Federal law. The extent of such Tribal authority depends on
the effect of that activity on the Tribe. As discussed above, in the
absence of a contrary statutory policy, a Tribe may regulate the
activities of non-Indians on fee lands within its reservation when
those activities threaten or have a direct effect on the political
integrity, the economic security, or the health or welfare of the
Tribe. Montana, 450 U.S. at 565-66. For further discussion of this
issue see 56 FR 64876.
However, in Brendale several justices argued that for a Tribe to
have ``a protectable interest'' in an activity, the activity's effect
should be ``demonstrably serious * * *.'' Brendale, 492 U.S. at 431
(White, J.). In addition, in a more recent case involving Tribal
criminal jurisdiction, a majority of the Court indicated in dicta that
a Tribe may exercise civil authority ``where the exercise of tribal
authority is vital to the maintenance of tribal integrity and self-
determination.'' Duro v. Reina, 110 S.Ct. 2053, 2061 (1990). See also
Brendale, 492 U.S. at 450 (Blackmun, J.) (test for inherent Tribal
authority whether activities ``implicate a significant tribal
interest''); id. at 462 (Blackmun, J.) (test for inherent Tribal
authority whether exercise of authority ``fundamental to the political
and economic security of the tribe * * *'').
As discussed above, the Supreme Court, in recent cases, has
explored several options to assure that the impacts upon Tribes of the
activities of non-Indians on fee land, under the Montana test, are more
than de minimis, although to date the Court has not agreed, in a case
on point, on any one reformulation of the test. In response to this
uncertainty, the Agency will apply, as an interim operating principle,
a formulation of the standard that will require a showing that the
potential impacts of regulated activities of non-members on the Tribe
are serious and substantial.
The choice of an Agency operating principle containing this
standard is taken solely as a matter of prudence in light of judicial
uncertainty and does not reflect an Agency endorsement of this standard
per se. Moreover, as discussed below, the Agency believes that the
activities regulated under the various environmental statutes generally
have serious and substantial impacts on human health and welfare. As a
result, the Agency believes that Tribes usually will be able to meet
the Agency's operating principle, and that use of such a test by the
Agency should not create an improper burden of proof on Tribes or
create the administratively undesirable result of checkerboarding
reservations.
Whether a Tribe has jurisdiction over activities by nonmembers will
be determined case-by-case, based on factual findings. The
determination as to whether the required effect is present in a
particular case depends on the circumstances. Nonetheless, the Agency
also may take into account the provisions of environmental statutes and
any legislative findings that the effects of the activity are serious
in making a generalized finding that Tribes are likely to possess
sufficient inherent authority to control reservation environmental
quality. See, e.g., Keystone Bituminous Coal Ass'n v. DeBenedictis, 480
U.S. 470, 476-77 and nn.6, 7 (1987). As a result, in making the
required factual findings as to the impact of a solid waste activity on
a particular Tribe, it may not be necessary to develop an extensive and
detailed record in each case. The Agency also may rely on its special
expertise and practical experience regarding the importance of solid
waste management.
The Agency believes that Congressional enactment of RCRA
establishes a strong Federal interest in effective management of solid
waste. EPA also notes that, where solid waste affects ground water
which has pathways that allow it to migrate readily, it would be
practically very difficult to separate out the effects of solid waste
disposal on non-Indian fee land within a reservation from those on
Tribal portions. In other words, any environmental impairment that
occurs on, or as a result of, activities on non-Indian fee lands is
very likely to impair Tribal lands. This also suggests that the serious
and substantial effects of solid waste within the non-Indian portions
of a reservation are very likely to affect Tribal health and welfare.
EPA believes that a ``checkerboard'' system of regulation, whereby the
Tribe and State split up regulation of solid waste on the Indian Lands,
would exacerbate the difficulties of assuring compliance with RCRA
requirements.
The Agency also believes that the effects on Tribal health and
welfare necessary to support Tribal regulation of non-Indian activities
on Indian Lands may be easier to establish in the context of
environmental regulation than with regard to zoning, which was at issue
in Brendale. There is a significant distinction between land use
planning and environmental regulation of solid waste under RCRA. The
Supreme Court has explicitly recognized such a distinction: ``Land use
planning in essence chooses particular uses for the land; environmental
regulation does not mandate particular uses of the land but requires
only that, however the land is used, damage to the environment is kept
within prescribed limits.'' California Coastal Comm'n v. Granite Rock
Co., 480 U.S. 572, 587 (1987). The Court has relied on this distinction
to support a finding that States retain authority to carry out
environmental regulation even in cases where their ability to carry out
general land use regulation is preempted by federal law. Id. at 587-89.
Further, management of solid waste serves the purpose of protecting
public health and safety, which is a core governmental function, whose
exercise is critical to self-government. The special status of
governmental actions to protect public health and safety is well
established.3 By contrast, the power to zone can be exercised to
achieve purposes which have little or no direct nexus to public health
and safety. See, e.g., Brendale, 492 U.S. at 420 n.5 (White, J.)
(listing broad range of consequences of state zoning decision).
Moreover, solid waste may affect ground water, which is mobile, freely
migrating from one local jurisdiction to another, sometimes over large
distances. By contrast, zoning regulates the uses of particular
properties with impacts that are much more likely to be contained
within a given local jurisdiction.
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\3\This special status has been reaffirmed by all nine justices
in the context of Fifth Amendment takings law. See Keystone
Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 491 n. 20
(1987); id. at 512 (Rehnquist, C.J., dissenting).
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Operationally, EPA's generalized findings regarding the
relationship of solid waste management to Tribal health and welfare
will affect the legal analysis of a Tribal submission by, in effect,
supplementing the factual showing a Tribe makes in applying for program
approval. Thus, a Tribal submission regarding jurisdiction on fee lands
will need to make a relatively simple showing of facts that there is or
may be solid waste within the meaning of Subtitle D on the reservation
and that the Tribe or Tribal members could be subject to exposure to
that waste. The Tribe also must explicitly assert that activities of
non-Indians regarding that waste would have a serious and substantial
effect on the health and welfare of the Tribe. Once the Tribe meets
this initial burden, EPA will, in light of the facts presented by the
Tribe and the generalized statutory and factual findings regarding the
importance of solid waste discussed above, presume that there has been
an adequate showing of Tribal jurisdiction on fee lands, unless an
appropriate governmental entity (e.g., an adjacent Tribe or State)
demonstrates a lack of jurisdiction on the part of the Tribe.
The Agency recognizes that jurisdictional disputes between Tribes
and States can be complex and difficult. However, EPA's ultimate
responsibility is protection of the environment. In view of the
mobility of environmental problems, and the interdependence of various
jurisdictions, it is imperative that all affected sovereigns work
cooperatively for environmental protection.
For purposes of this determination, Tribe is defined to mean any
Indian tribe, band, nation, or other organized group or community which
is recognized by the Secretary of the Interior or Congress and which
exercises substantial governmental duties and powers over any area.
While the definition of Tribes in today's determination does not
explicitly include Alaska Native Villages, EPA has not determined that
such entities are ineligible to apply for permit program approval.
Alaska Native entities (e.g., villages) may apply for permit program
approval. Alaska Native Villages that demonstrate that their permit
programs meet the requirements of today's proposal will be deemed
adequate.
B. Campo Band of Mission Indians
On February 15, 1994, the Campo Band submitted an application for
adequacy determination. EPA reviewed the Campo Band's application and
tentatively determined that the following portions of the Tribe's
Subtitle D program will ensure compliance with the revised Federal
Criteria:
1. General criteria governing scope and applicability, definitions,
and consideration of other federal laws (40 CFR 258.1, 258.2, 258.3);
2. Location restrictions for airport safety, floodplains, wetlands,
fault areas, seismic impact zones, unstable areas, and closure of
existing units (40 CFR 258.10, 258.11, 258.12, 258.13, 258.14, 258.15,
and 258.16);
3. Operating criteria for exclusion of hazardous waste, cover
material requirements, disease vector control, explosive gases control,
air criteria, access requirements, run-on/run-off control systems,
surface water requirements, liquids restrictions, and recordkeeping
requirements (40 CFR 258.20, 258.21, 258.22, 258.23, 258.24, 258.25,
258.26, 258.27, 258.28, and 258.29);
4. Design criteria (40 CFR 258.40);
5. Groundwater monitoring and corrective action criteria governing
applicability (40 CFR 258.50);
6. Closure and post-closure care requirements (40 CFR 258.60 and
258.61);
7. Financial assurance criteria governing applicability and
effective date, and allowable mechanisms (40 CFR 258.70 and 258.74).
Not all States/Tribes will have existing permit programs through
which they can ensure compliance with all provisions of the revised
Federal Criteria. Were EPA to restrict a State/Tribe from submitting
its application until it could ensure compliance with the entirety of
40 CFR part 258, many States/Tribes would need to postpone obtaining
approval of their permit programs for a significant amount of time.
This delay in determining the adequacy of the State/Tribal permit
program while the State/Tribe revises its statutes, codes or
regulations could impose a substantial burden on owners and operators
of landfills because the State/Tribes would be unable to exercise the
flexibility available to States/Tribes with permit programs which have
been approved as adequate.
The Campo Band needs to revise aspects of its permit program to
ensure compliance with the following provisions of the Federal
Criteria:
1. Groundwater monitoring and corrective action criteria for
groundwater monitoring systems, sampling and analysis requirements,
detection monitoring program, assessment monitoring program, and
corrective action implementation (40 CFR 258.51, 258.53, 258.54,
258.55, and 258.58). Although existing CEPA regulations ensure
compliance with the federal assessment of corrective measures and
selection of remedy requirements (40 CFR 258.56 and 258.57) in and of
themselves, it would be impossible to separate compliance with these
portions of CEPA's regulations from the rest of CEPA's groundwater
monitoring program. Therefore, if CEPA does not fully adopt draft
regulatory changes to the groundwater monitoring systems, sampling and
analysis requirements, detection monitoring program, assessment
monitoring program, and corrective action implementation requirements,
EPA cannot approve CEPA for the assessment of corrective measures and
selection of remedy portions of its program.
2. Financial assurance criteria for closure, post-closure and
corrective action (40 CFR 258.71, 258.72, and 258.73).
The Campo Band submitted an amendment to its application for
program adequacy determination on April 18, 1994. The Campo Band's
amendment included draft revised requirements for those parts of the
Campo Band's existing program that are not adequate to ensure
compliance with the federal criteria. EPA Region 9 reviewed the Campo
Band's amendment to its application and determined that these draft
regulatory requirements would be adequate to ensure compliance with the
Federal Criteria.
If the draft regulatory requirements submitted to EPA on April 18,
1994 are fully adopted before EPA makes a final determination, then EPA
proposes to fully approve the Campo Band's MSWLF program. If all the
necessary draft regulatory requirements are not adopted with the
relevant effective dates or are adopted with altered language that
would not clearly assure compliance with the Federal Criteria, then EPA
proposes to partially approve the Campo Band's program. Partial
approval would only be for those portions of the Campo Band program
that assure compliance with the Federal Criteria.
In addition, before EPA grants partial or full program approval,
the Campo Band must reaffirm the February 13, 1994 promulgation of the
emergency regulations submitted with the Campo Band's February 15, 1994
final application. Although the Campo Band's emergency regulations are
currently in effect, they remain in effect only 180 days after February
13, 1994 unless the original promulgation is affirmed. The emergency
regulations must be affirmed without altered language that would not
clearly assure compliance with the Federal Criteria in order for EPA to
approve those portions of the Campo Band program governed by the
emergency regulations.
The Campo Band has demonstrated that the Campo Band of Mission
Indians is a Federally recognized Tribe. See 53 FR 52830 (December 29,
1988). The Constitution (the ``Constitution'') of the Campo Band of
Mission Indians establishes a General Council that serves as the Campo
Band's governing body and enumerates the Council's powers and
responsibilities. Among the enumerated powers, the Constitution
authorizes the General Council to establish subordinate entities for
the Band and, by appropriate ordinances and resolutions, to delegate to
such subordinate entities any of the powers and duties of the General
Council. Pursuant to this power under the Constitution and by
Resolution No. 88-005, the General Council established the Campo
Environmental Protection Agency (CEPA) for the purpose of protecting
public health and safety and the environment. CEPA is charged with the
administration and enforcement of the solid waste management permitting
and regulatory compliance programs.
All land within the Campo Reservation is tribal trust land. The
Campo Band has established that the Campo Band of Mission Indians has
adequate jurisdiction over the land of the Campo Reservation based on
general principles of Tribal sovereignty, the Band's status as a
``federally recognized Indian Tribe,'' the Tribal Constitution, a map
and narrative description which established the boundaries of the
Reservation and copies of Tribal codes and regulations.
In making today's tentative determination that the Campo Band's
MSWLF permit program is adequate, the Agency has tentatively determined
that the Tribe has adequate authority over the activities regulated by
such a program. In its application, the Campo Band has also
demonstrated that it has adequate resources to manage a MSWLF permit
program and adequate authority to issue permits, ensure compliance
monitoring and enforcement, and to provide for intervention in civil
enforcement proceedings.
Region 9 will hold a public hearing on this determination from 7
p.m. to 9 p.m. June 30, 1994 at the Alpine Elementary School
Auditorium, 1850 Alpine Blvd., Alpine, California, 91901. An open house
is scheduled for 3 p.m. to 6 p.m. on June 30, 1994 at the Alpine
Elementary School Auditorium to give the public an opportunity to
discuss the tentative approval before the hearing. The public may
submit written comments on EPA's tentative determination until the
close of the public comment period July 14, 1994. Copies of the Campo
Band's application and supporting documents are available for
inspection and copying at the locations indicated in the ``Addresses''
section of this notice.
EPA will consider all public comments on its tentative
determination received during the public comment period and public
hearing. Issues raised by those comments may be the basis for a
determination of adequacy or inadequacy for the Campo Band's program.
EPA will make a final determination on whether or not to approve the
Campo Band's program and will give notice of it in the Federal
Register. The notice will include a summary of the reasons for the
final determination and a response to all major comments.
Section 4005(a) of RCRA provides that citizens may use the citizen
suit provisions of section 7002 of RCRA to enforce the Federal MSWLF
criteria in 40 CFR part 258 independent of any State/Tribal enforcement
program. As EPA explained in the preamble to the final MSWLF criteria,
EPA expects that any owner or operator complying with provisions in a
State/Tribal program approved by EPA should be considered to be in
compliance with the Federal Criteria. See 56 FR 50978, 50995 (October
9, 1991).
Compliance With Executive Order 12866
The Office of Management and Budget has exempted this notice from
the requirements of section 6 of Executive Order 12866.
Certification Under the Regulatory Flexibility Act
Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify
that approval of the Tribal MSWLF permit program will not have a
significant economic impact on a substantial number of small entities.
It does not impose any new burdens on small entities. This notice,
therefore, does not require a regulatory flexibility analysis.
Authority
This notice is issued under the authority of sections 2002, 4005
and 4010(c) of the Solid Waste Disposal Act as amended; 42 U.S.C. 6912,
6945, 6949a(c).
Dated: April 29, 1994.
Felicia Marcus,
Regional Administrator.
[FR Doc. 94-11085 Filed 5-10-94; 8:45 am]
BILLING CODE 6560-50-P
