[Federal Register Volume 61, Number 116 (Friday, June 14, 1996)]
[Proposed Rules]
[Pages 30472-30487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15186]
[[Page 30471]]
_______________________________________________________________________
Part IX
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 35, 270, 271
Authorization of Indian Tribe's Hazardous Waste Programs Under RCRA
Subtitle C; Proposed Rule
Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 /
Proposed Rules
[[Page 30472]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 35, 270 and 271
[EPA/OSW-FRL-5509-8]
RIN 2050-AD07
Authorization of Indian Tribe's Hazardous Waste Programs Under
RCRA Subtitle C
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: Today's proposed rule will further the Policy for the
Administration of Environmental Programs on Indian Reservations (Nov.
8, 1984) (``EPA's Indian Policy'') by clarifying the eligibility of
Tribal governments to obtain authorization from EPA to implement a
Subtitle C hazardous waste program in lieu of EPA under RCRA section
3006, and to obtain Federal grants to support the development and
implementation of such a program under RCRA section 3011. This proposal
identifies the standards and procedures that would govern the
submission and review of Indian Tribes' authorization applications. It
also discusses the circumstances under which Tribes could be approved
to operate a partial Subtitle C hazardous waste program.
DATES: Comments on this proposed rule must be submitted on or before
August 13, 1996.
ADDRESSES: Commenters must send an original and two copies of their
comments referencing docket number x-96-xxxx-xxxxx to: (1) If using
regular US Postal Service mail: RCRA Docket Information Center, Office
of Solid Waste (5305W), U.S. Environmental Protection Agency
Headquarters (EPA, HQ), 401 M Street, SW, Washington, DC 20460 or (2)
if using special delivery, such as overnight express service: RCRA
Docket Information Center (RIC), Crystal Gateway One, 1235 Jefferson
Davis Highway, First Floor, Arlington, VA 22202. Comments may also be
submitted electronically through the Internet to: RCRA-
Docket@epamail.epa.gov. These comments should be identified by the
docket number x-96-xxxx-xxxxx, and submitted as an ASCII file to avoid
the use of special characters and encryptions.
Please do not submit any Confidential Business Information (CBI)
electronically. An original and two copies of CBI must be submitted
under separate cover to: RCRA CBI Document Control Officer, Office of
Solid Waste (5305W), U.S. EPA, 401 M Street, SW, Washington, DC 20460.
Public comments and supporting materials are available for viewing
in the RCRA Information Center (RIC) located at Crystal Gateway One,
1235 Jefferson Davis Highway, First Floor, Arlington, VA. The RIC is
open from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal
holidays. To review docket materials, please make an appointment by
calling (703) 603-9230. The public may copy a maximum of 100 pages from
any regulatory docket at no charge. Additional copies will cost $.15/
page.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline, Office of Solid Waste, U.S. Environmental Protection
Agency, 401 M Street, S.W., Washington, D.C. 20460, (800) 424-9346; TDD
(800) 553-7672 for the hearing impaired; in the Washington, D.C. metro
area, the telephone number is (703) 412-9810, TDD 703-412-3323.
For more detailed information, contact Felicia Wright, Office of
Solid Waste (5303W), U.S. Environmental Protection Agency, 401 M
Street, S.W., Washington, D.C. 20460; telephone (703) 308-8634.
SUPPLEMENTARY INFORMATION: In this document, EPA is proposing
amendments to the RCRA Subtitle C regulatory definitions, authorization
standards, and authorization procedures, which are codified in subpart
A of 40 CFR part 270 and in subpart A of 40 CFR part 271.
The index is available on the Internet. Please follow these
instructions to access the information electronically: Gopher:
gopher.epa.gov WWW: http://www.epa.gov
Dial-up: (919) 558-0335.
This report can be accessed from the main EPA Gopher menu in the
directory: EPA Offices and Regions/Office of Solid Waste and Emergency
Response (OSWER)/Office of Solid Waste (RCRA)/Hazardous Waste/
........./..........
FTP: ftp.epa.gov
Login: anonymous
Password: Your Internet Address
Files are located in /pub/gopher/OSWRCRA
The official record for this action will be kept in paper form.
Accordingly, EPA will transfer all comments received electronically
into paper form and place them in the official record, with all of the
comments received in writing. The official record is the paper record
maintained at the address in ``ADDRESSES'' at the beginning of this
document.
EPA's responses to comments, whether written or electronic, will be
printed in the Federal Register, or in a ``response to comments
document'' placed in the official record for this rulemaking. EPA will
not immediately reply to commenters electronically other than to
clarify electronic comments that may be garbled during transmission or
conversion to paper form.
I. Overview of This Proposed Rulemaking
This proposal further implements the Agency's 1984 Indian Policy by
amending certain definitions, standards, and procedures within the
regulations promulgated pursuant to RCRA Subtitle C (42 USC 6921--
6939e) that govern EPA's authorization of States' hazardous waste
programs. The overall effect of these amendments would be to clarify
that Indian Tribes may obtain full or partial authorization from EPA to
operate Tribal hazardous waste management programs in lieu of EPA's
Federal regulatory program, and to clarify that authorized Indian
Tribes, in the same manner as authorized States, may obtain RCRA
section 3011 grant funds to aid the development and implementation of
their Subtitle C management programs.
This notice proposes to add definitions of ``Indian Tribes'' and
``Indian Country'' to the Subtitle C program definitions codified at 40
CFR 270.2. Moreover, the existing definition of ``States'' in section
270.2 would be amended to extend to ``Indian Tribes'' the ability to
obtain program authorization from EPA under RCRA section 3006, and
financial assistance from EPA under RCRA section 3011.
EPA proposes to amend several sections of subpart A of 40 CFR part
271, which contains the standards and procedures for EPA's
authorization of ``State'' hazardous waste programs. A new subsection
in (Sec. 271.1(k)) would be added to clarify that the substantive
standards and procedures that apply to States' programs and
authorization submissions apply to Tribal programs and submissions,
unless there is a specific provision that would address Tribal programs
differently.
The specific procedures which EPA believes are appropriate for
Tribal program authorizations and submissions would be set out in a new
Sec. 271.27. Proposed Sec. 271.27(a) identifies several minor changes
to the authorization application documents and agreements (i.e.,
Governor's letter, Program Description, Memorandum of Agreement, and
Attorney General's Statement) which EPA requires States to submit in
support of their applications
[[Page 30473]]
for program authorization. The proposed changes arise from a
recognition of tribal sovereignty and differences in the structure of
Tribal governments, and from circumstances unique to Indian Tribes.
Proposed Sec. 271.27(b) establishes criteria under which Indian
Tribes may be authorized to operate a partial RCRA hazardous waste
program. This authority enables a Tribe, for example, to obtain
authorization for a program that regulates only generators and
transporters of hazardous waste, with EPA retaining responsibility for
regulating and enforcing requirements for any hazardous waste
treatment, storage, and disposal facilities. Under this proposal, only
Indian Tribes would be eligible for partial program authorization.
States will continue to be precluded from seeking and obtaining partial
authorization. Other provisions in Sec. 271.27 address the core program
requirements of a partial program, the sharing of authority with EPA,
and other requirements that follow from the inclusion of partial
program authority in this proposed rule.
II. Authority
Today's rule is being proposed under the authority of sections
2002, 3006, and 3011 of the Resource Conservation and Recovery Act of
1976 (RCRA or the Act), as amended. Section 2002(a) authorizes the
Administrator to prescribe such regulations as are necessary to carry
out functions under Subtitle C of RCRA. Section 3006 of RCRA allows EPA
to authorize State hazardous waste programs to operate in the State in
lieu of the Federal hazardous waste program subject to the authority
retained by EPA in accordance with the Hazardous and Solid Waste
Amendments of 1984 (HSWA). Section 3011 of RCRA authorizes EPA to make
grants to the States for the purpose of assisting the States in the
development and implementation of authorized State hazardous waste
programs.
III. Background
A. Current Subtitle C Authorization Program
EPA has primary responsibility for implementing and enforcing the
RCRA Subtitle C hazardous waste program. Federal law, including the
issuance and enforcement of permits for hazardous waste facilities,
will be implemented by the Federal EPA until EPA authorizes a State for
a hazardous waste program, at which point primary authority rests with
the State.
The statute and regulations currently support two types of State
program authorization. The first type, ``interim authorization,'' is a
temporary authorization which is granted if EPA determines that the
State program is ``substantially equivalent'' to the Federal program
(section 3006(c), 42 U.S.C. 6926(c)). Interim authorization is
currently available only for requirements imposed pursuant to the
Hazardous and Solid Waste Amendments (HSWA) of 1984. HSWA Interim
Authorization will expire in January, 2003 unless extended by rule.
The second type of authorization is ``final'' (permanent)
authorization. Final authorization may be granted by EPA if the Agency
determines, among other things, that the State program: (1) Is
equivalent to the Federal program; (2) is consistent with the Federal
program and other authorized State programs; and (3) provides for
adequate enforcement (Section 3006(b), 42 U.S.C. 6926(b)) 7004,
3006(f). States, and now under this proposal, Tribes, need not have
obtained interim authorization in order to qualify for final
authorization.
To date, 46 States, Guam and the District of Columbia have been
authorized for the ``base'' RCRA Subtitle C program (i.e., the program
in place before the enactment of HSWA in 1984). In these States, the
authorized State programs operate in lieu of the corresponding Federal
program and, if Federal enforcement is necessary, EPA must enforce the
authorized State program requirements.
B. EPA's 1984 Indian Policy
Today, EPA is proposing to extend to Indian Tribes the opportunity
to apply for and receive hazardous waste program authorization similar
to that currently available to States. Providing Tribes with this
opportunity is consistent with the EPA's Indian Policy. This policy,
formally adopted in 1984, and reaffirmed on March 14, 1994 by EPA
Administrator Carol M. Browner, ``* * * views Tribal Governments as the
appropriate non-Federal parties for making decisions and carrying out
program responsibilities affecting Indian reservations, their
environments, and the health and welfare of the reservation populace.
Just as EPA's deliberations and activities have traditionally involved
the interests and/or participation of State governments, EPA will look
directly to Tribal Governments to play this lead role for matters
affecting reservation environments.''
A major goal of EPA's Indian Policy is to eliminate all statutory
and regulatory barriers to Tribal administration of Federal
environmental programs. Today's proposal represents another step in the
Agency's continuing commitment towards achieving this goal. However,
EPA recognizes, in the spirit of Indian self-determination and the
government-to-government relationship, that not all Tribes will choose
to apply for and receive hazardous waste program authorization at this
time. Regardless of the choice made, the Agency remains committed to
providing technical assistance and training when possible to Tribal
entities as they work to resolve their hazardous waste management
concerns.
C. Legal Basis for Subtitle C Authorization of Indian Tribes
EPA believes that adequate authority exists under the Act to allow
Tribes to seek hazardous waste program authorization. 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 hazardous waste program authorization
satisfies the Chevron test.
RCRA does not explicitly define a role for Tribes under section
3006 and reflects an undeniable ambiguity in Congressional intent.
Indeed, the only mention of Indian 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 of solid waste management, or any
Indian tribe or authorized tribal organization or Alaska Native
village or organization[.]
The term ``municipality'', in turn, is used in section 4008(a)(2)
of RCRA with specific reference to the availability of certain Federal
funds and technical assistance for hazardous and solid waste planning
and management activities by municipalities. Section 4008(a)(2)
authorizes EPA to provide financial and technical assistance to
municipalities on hazardous and solid waste management. Although
Congress apparently intended to make explicit that Indian Tribes could
receive funds and assistance when available in the same manner as
municipal governments (by the inclusion of Tribes in section 1004(13)),
Congress did not explicitly recognize any other role for Tribes under
other provisions. There is no accompanying legislative history which
explains why
[[Page 30474]]
Indian Tribes were included in section 1004(13) and nowhere else.
EPA does not believe that Congress, by including Indian Tribes in
section 1004(13), intended to prohibit EPA from allowing Tribes to
apply for hazardous waste program authorization under Subtitle C. First
of all, it is clear that Indian Tribes are not ``municipalities'' in
the traditional sense. Indian Tribes are not ``public bodies created by
or pursuant to State law.'' Indeed, Indian Tribes are not subject to
State law except in very limited circumstances. See, California v.
Cabazon Band of Mission Indians, 480 U.S. 202 (1987). Indian Tribes are
sovereign governments. See Worcester v. Georgia, 31 U.S. (10 Pet.) 515
(1832); and United States v. Mazurie, 419 U.S. 544, 557-58 (1975).
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 Indian Tribes to State law for RCRA purposes.
Moreover, it is a well-established principle of statutory construction
that Federal statutes which are ambiguous as to whether they abridge
Tribal powers of self-government must be construed narrowly in favor of
retaining Tribal rights. F. Cohen, Handbook of Federal Indian Law, 224
(1982); 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. In particular,
the references in section 4008(a)(2) to state ``assistance'' to
municipalities does not suggest that Congress intended Indian Tribes to
be subject to State governmental control. Furthermore, given the
limited number of times the term ``municipality'' appears in RCRA, it
does not appear that Congress was attempting to define a role for
Tribes for all potential statutory purposes.
The ambiguity in RCRA regarding Indian Tribes also is evident in
the 1984 RCRA amendments. In these amendments, while silent on the role
for Tribes in implementing any RCRA programs, Congress expressed a
strong preference for a State lead for implementing and ensuring
compliance with the Federal Subtitle D revised criteria (as it had
earlier in providing for State authorization in RCRA Subtitle C).1
Yet, the legislative history of the 1984 amendments does not suggest
that Congress intended to approve States to implement such programs in
Indian country or that Congress considered the legal principle that
States generally are precluded from such implementation. Similarly,
RCRA Subtitle C does not contain an explicit delegation of authority to
States to implement hazardous waste programs in Indian country.
Washington Dept. of Ecology v. EPA, 752 F.2d 1465, 1469 (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. EPA, 745 F.2d 701 (9th Cir. 1981). Thus, while
Congress has otherwise put States in a primary role for both Subtitle C
hazardous waste program implementation and Subtitle D permit programs,
on Indian lands, it 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\ See, e.g., Solid Waste Disposal Act Amendments of 1979, 125
Cong. Rec. 13,241, 13,252 (1979) (``one of the real advantages of
State assumption of these programs envisioned by Congress in the
Act, over a more uniform Federal program, is that States are better
able to tailor their programs to meet local circumstances * * *'').
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Failure to authorize Tribal hazardous waste programs would deny
Tribes the option currently available to States to administer their
programs ``in lieu of the Federal program.'' With this proposal,
however, Subtitle C regulated activities and facilities in Indian
country would be under the jurisdiction of the closest sovereign with
permitting and enforcement authority, the Tribe, rather than the
Federal government.2
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\2\ EPA has approved one tribal program under RCRA--the Campo
Band of Mission Indian's municipal solid waste landfill permit
program (60 FR 21191 (May 1, 1995)). This action has been challenged
in the United States Court of Appeals for the D.C. Circuit. See,
Backcountry Against Dumps v. E.P.A., No. 95-1343 (D.C. Cir. Filed
July 6, 1995).
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EPA has worked to revise other environmental statutes (e.g., the
Clean Water Act) to define explicitly the role for Tribes under these
programs. 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 (July 26, 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 in Indian country. 54 FR 13000-01 (March 29, 1989).
EPA filled a similar 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 reservations 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 (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.3
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\3\ Congress ratified EPA's regulation in 1977 by explicitly
authorizing Tribes to make PSD redesignations; the 1990 Amendments
to the 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 in Indian reservations. In
Nance, 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 reservations from the
redesignation process. 745 F.2d 713. The Court noted that EPA's rule
was reasonable in light of the general existence of Tribal sovereignty
over activities in Indian reservations. Id. at 714.
Today's proposal is analogous to the rule upheld in Nance. EPA is
proposing to fill a statutory gap regarding the role of Tribes in the
implementation of Subtitle C in Indian country. As with the
redesignation program, authorizing Tribal hazardous waste programs
ensures that the Federal government is not the entity exercising
authority that Congress intended to be exercised at a local level.
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 emphasized since Nance that Indian Tribes may
regulate activities in Indian country, including those of non-Indians
on fee lands where the conduct directly threatens the health
[[Page 30475]]
and safety of the Tribe or its members. Montana v. United States, 450
U.S. 544, 565 (1981).
Extending the ability to receive program authorization to Tribes is
consistent with the general principles of Federal Indian law and the
Agency's Indian Policy which states that environmental programs (e.g.,
RCRA Subtitle C) in Indian country will be implemented to the maximum
extent by Tribal governments. Thus, as in Nance, EPA believes that
allowing Tribes to apply for hazardous waste authorization reflects the
sovereign authority of Tribes under Federal law.
A Tribe submitting an application to receive authorization for any
or all parts of the RCRA Subtitle C hazardous waste program will be
subject to the standards of this rule, when finalized. A Tribe which
has received authorization prior to promulgation of the final rule will
not lose its authorization status. However, if there are subsequent
changes in either the Federal or Tribal program (including, for
example, the acquisition of significant amounts of non-reservation land
by the Tribe), such a Tribe may be required to revise its authorized
program in accordance with the standards set forth in 40 CFR part 271.
IV. Detailed Discussion of the Proposed Rule
A. Overview
This proposed rule announces several changes to the regulatory
definitions (40 CFR 270.2) that define the scope of the Subtitle C
authorization program. Today's proposal also specifies the standards
and procedures that EPA would follow in approving, revising and
withdrawing authorization of Tribal hazardous waste programs, as well
as the requirements that tribal programs must meet to be authorized by
the Administrator under sections 3006(b) of RCRA.
Generally, Tribes would have to meet the same criteria as do the
States. Consequently, except where otherwise expressly indicated, the
REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE PROGRAMS (40
CFR part 271) are applicable to Tribes as well. However, today's
proposal recognizes the uniqueness of Tribes and Indian country and
revises several existing requirements, and adds appropriate
requirements to certain sections of the rule.
This part of the preamble discusses in detail changes in the
definitions which EPA believes are necessary to clarify the role of
Indian Tribes in Subtitle C authorization, and the other substantive
and procedural regulatory amendments which are needed to make the 40
CFR part 271 requirements more suited to the unique circumstances of
Tribes and Indian Country.
B. Tribal Regulatory Authority
To have its hazardous waste program authorized by EPA under today's
proposal, a Tribe would have to have adequate authority over the
regulated activities. The jurisdiction of Tribes clearly extends ``over
both their members and their territory.'' United States v. Mazurie, 419
U.S. 544, 557 (1975). However, Indian reservations may include lands
owned in fee by non-members. ``Fee lands'' are privately owned by non-
members and title to the lands can be transferred without restriction.
The extent of Tribal authority to regulate activities by non-tribal
members on fee lands has been the subject of considerable discussion.
The Supreme Court has said that there are two situations where a Tribe
is able to exercise civil jurisdiction over non-member owned fee lands
within Indian reservations. The Court stated, in Montana v. U.S., 450
U.S. 544, 566-67 (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.
The Court applied the latter part of this test in Brendale v.
Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408
(1989). In that case, 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 non-tribal members. 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 did recognize 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 non-members 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.
However, as discussed by EPA in the context of the Clean Water Act,
the Supreme Court, in a number of post-Montana cases, has explored
several criteria 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. See 56 FR 64876, 64878
(December 12, 1991). In response to this uncertainty, the Agency will
apply, as an interim operating rule, a formulation of the Montana
standard that will require a showing that the potential impacts of
regulated activities of non-members on the Tribe are serious and
substantial. See 56 FR at 64878. EPA will thus require that a Tribe
seeking RCRA Subtitle C authorization demonstrate jurisdiction, i.e.,
make a showing that the potential impacts on the Tribe from hazardous
waste management activities of non-members on fee lands are serious and
substantial.
The choice of an Agency operating rule 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. See
56 FR at 64878. Moreover, as discussed below, the Agency believes that
the activities regulated under the various
[[Page 30476]]
environmental statutes, including RCRA, generally have potential direct
impacts on human health and welfare that are serious and substantial.
As a result, the Agency believes that Tribes usually will be able to
meet the Agency's operating rule, and that use of such a rule by the
Agency should not create an improper burden of proof on Tribes.
Whether a Tribe has jurisdiction over activities by non-members on
fee lands 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 and will likely vary from
Tribe to Tribe.
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 and substantial in making a generalized
finding that Tribes are likely to possess sufficient inherent authority
to control environmental quality in Indian Country. See, e.g., Keystone
Bituminous Coal Association v. DeBenedictis, 480 U.S. 470, 476-77 and
nn.6, 7 (1987). The Agency may also rely on its special expertise and
practical experience regarding the importance of hazardous waste to the
protection of Tribal environments and the health and welfare of Tribal
members. As a result, the reservation-specific demonstration required
of a Tribe may, in many cases, be relatively simple. EPA's approach to
determining Tribal jurisdiction over the activities of nonmembers on
fee lands within reservation boundaries was recently upheld in Montana
v. EPA, No. CV 95-56-M-CCL, 1996 U.S. Dist. LEXIS 4753 (D. Mont. March
27, 1996), which involved an EPA decision to approve a Tribal
application to administer the water quality standards program under
section 303 of the Clean Water Act.
EPA believes that Congress established a strong Federal interest in
effective management of hazardous waste throughout the country by
enacting RCRA. For example, one of the primary objectives of the
statute is ``to promote the protection of health and the environment
and to conserve valuable material and energy resources by * * *
assuring that hazardous waste management practices are conducted in a
manner which protects human health and the environment.'' RCRA section
1003(a), 42 U.S.C. 6902(a). EPA also notes that many of the
environmental problems caused by mismanagement of hazardous waste
(e.g., groundwater contamination or the release of hazardous
constituents into the air) by their nature present potential direct
impacts that are serious and substantial in areas that are outside the
place where the hazardous waste management originally occurred. In
other words, any environmental hazards that result from hazardous waste
management by non-members on fee lands within a reservation are very
likely to present direct impacts to Tribal environments, health and
welfare that are serious and substantial. EPA also believes that a
``checkerboard'' system of regulation, whereby the Tribe and State
split up regulation of hazardous waste on Indian lands, would
exacerbate the difficulties of assuring compliance with RCRA
requirements.
In light of the Agency's statutory responsibility for implementing
the environmental statutes, its interpretations of the intent of
Congress regarding Tribal management of solid waste within the
reservation are entitled to substantial deference. Washington Dep't of
Ecology v. EPA, 752 F.2d 1465, 1469 (9th Cir. 1985); see generally
Chevron, USA, Inc. v. NRDC, 467 U.S. 837, 843-45 (1984).
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 hazardous 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 hazardous 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.4 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, hazardous 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.
---------------------------------------------------------------------------
\4\ 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).
---------------------------------------------------------------------------
The process that the Agency will use for Tribes to demonstrate
their authority over non-members on fee lands includes a submission of
a statement in the Tribal Legal Certification (Sec. 271.27(a))
explaining the legal basis for the Tribe's regulatory authority.
However, EPA will also rely on its generalized findings regarding the
relationship of hazardous waste management to Tribal health and
welfare. Thus, the Tribal submission will need to make a showing of
facts that there are or may be activities regulated under RCRA Subtitle
C engaged in by non-members on fee lands within the territory for which
the Tribe is seeking authorization, and that the Tribe or Tribal
members could be subject to exposure to hazardous waste from such
activities through, e.g., groundwater, soil, air, and/or direct
contact. The Tribe must explicitly assert and demonstrate jurisdiction,
i.e., make a showing, that improper management of hazardous waste by
non-members on fee lands could have direct impacts on the health and
welfare of the Tribe and its members that are serious and substantial.
Once a 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 proper hazardous waste management
in Indian country, presume that the Tribe has made an adequate showing
of jurisdiction over non-member activities 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 and that it will, in some
circumstances, be forced to address such disputes by attempting to work
with the parties in a mediative fashion. However, EPA's ultimate
responsibility is protection of human health and the environment. In
view of the mobility of environmental problems, and the interdependence
of
[[Page 30477]]
various jurisdictions, it is imperative that all affected sovereigns
work cooperatively for environmental protection.
C. Implementing the Government-to-Government Relationship With EPA
Under the Clean Water Act (CWA), the Safe Drinking Water Act
(SDWA), the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA) and the Clean Air Act (CAA), Congress has
specified certain criteria by which EPA is to determine whether a Tribe
may be treated in the same manner as a State. These criteria generally
require that the Tribe (1) be recognized by the Secretary of the
Interior; (2) have an existing government exercising substantial
governmental duties and powers; (3) have adequate civil regulatory
jurisdiction over the subject matter and entities to be regulated; and
(4) be reasonably expected to be capable of administering the federal
environmental program for which it is seeking approval.
As discussed below, EPA is requiring Tribes seeking grant funds
under RCRA 3011 or program authorization under RCRA 3006 to demonstrate
in the Program Description that they meet the four criteria listed
above. The process EPA is proposing for Tribes to make this showing,
however, generally is not an onerous one.
The Agency has simplified its process for determining Tribal
eligibility to administer environmental programs under several other
environmental statutes. See 59 FR 64339 (December 14, 1994)
(``Treatment as a State (TAS) Simplification Rule''). The proposed
process for determining eligibility for RCRA Subtitle C programs
parallels the simplification rule. Generally, the fact that a Tribe has
met the recognition or governmental function requirement under another
environmental statute allowing for Tribal assumption of environmental
programs or grants (e.g., the Clean Water Act, Safe Drinking Water Act,
Clean Air Act) will establish that it meets those requirements for
purposes of RCRA Subtitle C authorization. To facilitate review of
tribal applications, EPA therefore requests that the Tribe demonstrate,
in proposed 40 CFR 271.27(a)(3)(ii), that it has been approved for
``TAS'' (under the old ``TAS'' process) or been deemed eligible to
receive authorization (under the simplified process) for any other
program.
If a Tribe has not received ``TAS'' approval or been deemed
eligible to receive authorization, the Tribe must demonstrate, pursuant
to proposed Sec. 271.27(a)(3)(ii), that it meets the recognition and
governmental function criteria described above. A discussion on how to
make these showings can be found at 59 FR 64339 (December 14, 1994).
EPA believes, on the other hand, that the Agency must make a
separate determination that a Tribe has adequate jurisdictional
authority and administrative and programmatic capability before it
approves each Tribal program.
In particular, if the Tribe is asserting jurisdiction over
hazardous waste activities conducted by non-members on fee lands within
Reservation boundaries, it must explicitly show, in its submission,
that the activities of non-members on fee lands regarding hazardous
waste could have direct effects on the health and welfare of the Tribe
that are serious and substantial. Copies of all documents, such as
treaties, constitutions, by-laws, charters, executive orders, codes,
ordinances, and/or resolutions which support the Tribe's assertions of
jurisdiction must also be included. EPA will review this documentation
and any comments given during the public comment period, and then will
make a determination whether there has been an adequate demonstration
of Tribal jurisdiction over Tribal, and if asserted, non-member
hazardous waste activities on fee lands within the boundaries of the
reservations.
Finally, capability is a determination that will be made on a case-
by-case basis. Ordinarily, the information provided in the application
for RCRA Subtitle C permit program approval submitted by any applicant,
Tribal or State, will be sufficient (see the program description
requirements under Sec. 271.6 and the discussion on pages 51-55 for the
elements of programmatic capability in the context of RCRA Subtitle C
authorization). Nevertheless, EPA may request, in individual cases,
that the Tribe provide a narrative statement or other documents showing
that the Tribe is capable of administering the program for which it is
seeking approval. See 59 FR 44339 (December 14, 1994).
D. Definitions
The key purpose of this proposed rulemaking is to clarify the
ability of Indian Tribes to obtain authorization from EPA of their
hazardous waste management programs under RCRA section 3006. The
proposal would further clarify that Indian Tribes may obtain Federal
grants under RCRA section 3011 to assist Tribes in developing and
implementing their authorized programs.
The proposal would provide this clarification through changes to
the governing definitions in 40 CFR 270.2 and 40 CFR 35.105. The most
significant of the changes is the proposed inclusion of ``Indian
Tribes'' within the list of governmental entities defined as ``States''
in 40 CFR 270.2. Under the Statute, both program authorization under
section 3006 and financial assistance under section 3011 are available
to States. Therefore, the proposed change to the regulatory definition
of ``States'' would make it clear that EPA interprets the Act as
providing EPA with sufficient authority to authorize and to issue
grants to qualified Indian Tribes.
EPA is also proposing to add to Sec. 270.2 new definitions for
``Indian Tribes'' and ``Indian Country.'' The proposed definition of
``Indian Tribe'' or ``Tribe'' would include any Indian Tribe, band,
group or community recognized by the Secretary of the Interior and
having a governmental body carrying out substantial governmental duties
and powers.
Second, ``Indian country'' would be defined as in 18 U.S.C. 1151,
to mean (A) all land within the limits of any Indian reservation under
the jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and including rights-of-way running throughout
the reservation, (B) all dependent Indian communities within the
borders of the United States whether within the original or
subsequently acquired territory thereof, and whether within or without
the limits of a state, and (C) all Indian allotments, the Indian titles
to which have not been extinguished, including rights-of-way running
through the same. EPA notes that the meaning of the term
``reservation'' must be determined in light of relevant case law. EPA
considers trust lands formally set apart for the use of Indian Tribes
to be ``Indian country'' even if the trust land has not been formally
designated as a ``reservation.'' See Oklahoma Tax Comm'n v. Citizen
Band of Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505 (1991).
These definitions are important not only for determining what
entities may apply for Subtitle C authorization, but also for
determining the territorial and legal reach of a Tribe's authorized
program. They are also important in establishing the necessary
government-to-government relationship with Tribes, and in addressing
the issue of tribal regulatory authority. EPA requests comment on these
proposed definitions, and the appropriateness of extending to Tribes
the availability of Subtitle C
[[Page 30478]]
authorization and RCRA section 3011 grants.
Available Alternatives to Authorization
EPA recognizes that most Tribes will choose not to pursue Subtitle
C authorization at this time. Several mechanisms already exist whereby
Tribes may engage in a partnership with the Agency in implementing
hazardous waste management activities. These mechanisms include
cooperative agreements, Memoranda of Understanding and Memoranda of
Agreement. Under all these mechanisms, Indian Tribes can develop and
implement their hazardous waste regulatory authorities and exercise
their sovereign authority with respect to their environments. These
mechanisms may also provide Tribes opportunities to increase their
capacity to manage environmental programs by participating with EPA in
hazardous waste activities, while maintaining the government-to-
government relationship described in EPA's Indian Policy. Authorization
is distinguished from the other types of relationships, because it
would confer on the Tribal government the authority to operate its
program in lieu of EPA operating all or part of the Federal hazardous
waste program.
E. Funding
EPA recognizes that, assuming current funding levels remain the
same, the effect of this proposal could be to make available to Tribes
Federal funds that otherwise would be allocated only to State hazardous
waste programs. Tribes that assume the burdens of a RCRA hazardous
waste program assume these burdens in lieu of EPA acting directly, so
the Agency believes it is appropriate for Indian Tribes to obtain RCRA
section 3011 funds that are commensurate with these burdens.
While Congress explicitly authorized grants to municipalities
(including Tribes) under RCRA subtitle D, EPA does not believe it is
precluded from interpreting RCRA to authorize grants to authorized
Tribes under RCRA subtitle C section 3011. Section 3011 does not
provide for grants to municipalities because of the nature of these
grants, which are for the development of broad hazardous waste
programs. There is nothing in RCRA or the legislative history to
indicate that Congress intended to limit Tribal grants to only those
provisions for which municipalities may receive grants. Under the
statutory scheme, section 3011 grants are specifically designed to aid
in developing and implementing authorized hazardous waste programs.
Given the Agency's interpretation that RCRA section 3006 is properly
read to allow EPA to authorize qualifying Tribes to administer RCRA
programs in lieu of EPA, it follows that these Tribes should also be
eligible to receive grant funding under RCRA section 3011 to assist
``in the development and implementation of authorized * * * hazardous
waste programs.'' The Agency's interpretation is consistent with the
well established general principle of statutory construction that
ambiguous statutes should be construed in favor of Tribes. See, e.g.,
Ramah Navajo School Board v. Bureau of Revenue, 458 U.S. 832, 846
(1982); see also, F. Cohen, Handbook of Federal Indian Law, 224-25
(1982).
EPA requests comments that would assist it in allocating RCRA
section 3011 funds equitably to authorized States and Tribes. The
Agency is especially interested in suggestions that would mitigate any
potential negative effects on funding of authorized State programs.
F. Program Application Elements
Because of the uniqueness of Tribal governments, EPA is proposing
in this rule to modify some of the program application elements
required under Sec. 271.5 for Tribal applications. These modifications
are explained in detail below.
1. Program Description
The proposed rule adds a new subsection to Sec. 271.6 which
requires a Tribe to include a map, legal description, or other
information sufficient to identify the full extent of the lands over
which the Tribe is asserting jurisdiction. In addition, the Tribe would
identify in the Program Description the location of any generator,
storage, treatment or disposal facilities subject to RCRA Subtitle C,
including any facilities on fee lands owned by non-members. Finally, in
those instances where a Tribe asserts jurisdiction over hazardous waste
activities conducted by non-members on fee lands within reservation
boundaries, the proposal would require the Program Description to
identify clearly the activities and areas affected by such a claim of
jurisdiction, and to assert and explain how the activities of non-
members will have a serious and substantial effect on the health and
welfare of the Tribe.
2. Attorney General's Statement
EPA recognizes that the ``Attorney General'' designation in 40 CFR
271.7 may not be appropriate for all Tribes, since some Tribal
governments may not have an Attorney General. Therefore, the proposal
would add Sec. 271.27(a)(4), which clarifies that the requirement of an
Attorney General's Statement is satisfied for Indian Tribes when the
Statement is signed by the Tribal attorney or by an equivalent legal
counsel retained by the Indian Tribe for representation in matters
before EPA or the courts pertaining to the Indian Tribe's program. This
amendment adds sufficient flexibility to the existing procedures to
enable the necessary legal certifications to be prepared and reviewed,
without imposing the undue rigor of requiring a submission by an
attorney with a particular title, office, or position. The essential
consideration is that the Statement be signed by an attorney who has
been retained to represent the Tribe on matters pertaining to the
Tribe's program authorization. The Tribe's attorney should include in
the Statement an assertion that he/she has the necessary authority to
represent the Tribe with respect to the application, and to certify
that the laws of the Tribe provide adequate authority to carry out the
program.
3. Memorandum of Agreement
This proposal includes several modifications to the Sec. 271.8
provisions that describe the content of the Memorandum of Agreement
that is entered into by EPA and authorized States. This Memorandum
generally addresses such matters as the transfer of program documents
to the State upon authorization, as well as the type and frequency of
coordination and oversight that will occur after authorization of a
State.
40 CFR 271.16 requires that, in order to obtain authorization for
its hazardous waste program, States must have criminal enforcement
authority over ``any person'' committing certain enumerated acts and
have the authority to impose a fine of $10,000 per violation. Federal
law bars Indian Tribes from trying criminally or punishing non-Indians
in the absence of express authority in a treaty or statute to the
contrary. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). In
addition, the Indian Civil Rights Act prohibits any Indian court or
Tribunal from imposing for any one offense a criminal penalty greater
than $5,000 on Indians within its jurisdiction (25 USC 1302(7)).
The Agency realizes that requiring Tribes to demonstrate the same
criminal authority as States would affectively prohibit any Tribe from
obtaining program authorization. The Agency therefore proposes to add
provision 271.27(a)(5) so that Tribes are not required to exercise
comprehensive
[[Page 30479]]
criminal enforcement jurisdiction as a condition for hazardous waste
program authorization. Under this rule, Tribes are required to provide
for the timely and appropriate referral of criminal enforcement matters
to the Regional Administrator when Tribal enforcement authority does
not exist or is not sufficient (e.g., those concerning non-Indians or
violation meriting penalties over $5,000) This section also requires
that such procedures be established in the formal Memorandum of
Agreement with the Regional Administrator required by 40 CFR 271.8.
This approach is the same that the Agency has taken in the context of
Tribal programs under the SDWA and CWA.
It should be noted that, as in authorized States, EPA retains the
authority to take necessary enforcement action if an authorized Tribe
did not (or could not) take such action or did not enforce adequately
(e.g., did not or could not impose a sufficient penalty). EPA
emphasizes that this referral mechanism is available only in those
cases where the limitation on Tribal enforcement arises under Federal
law. A Tribe that encumbers its own enforcement authority with
limitations based on laws adopted by the Tribe would be subject to the
same ``adequacy of enforcement'' review standard that applies to States
under RCRA section 3006 and the part 271 regulations.
EPA seeks comment on whether the authorization requirements set out
for States in 40 CFR part 271 are appropriate for Tribes and whether
any of these requirements will inappropriately restrict Tribes from
seeking authorization. EPA also requests comment on proposed
Sec. 271.27(a), and particularly, the modifications proposed for an
Indian Tribe's Program Description, Attorney General Statement, and
Memorandum of Agreement submissions.
G. Partial Authorization Authority
1. Background
Under this proposal, Indian Tribes would be eligible to obtain
authorization from EPA to operate partial RCRA hazardous waste
programs. This aspect of the proposal introduces authority for Tribes
that is not now available to the States and Territories of the United
States which currently have or are eligible for RCRA Subtitle C
authorization. The proposal would amend 40 CFR Sec. 271.1(h), which
currently prohibits partial State hazardous waste programs from
operating under RCRA Subtitle C final authorization. The proposed rule
would exempt only Tribal hazardous waste programs which meet the
proposal's criteria from the effects of the current prohibition. Other
``States'' (i.e., States and Territories) would remain subject to the
partial program prohibition.
EPA does not interpret RCRA section 3006 to preclude the operation
of partial RCRA programs. The current regulatory prohibition in 40 CFR
271.1(h) was adopted as a policy matter within EPA's discretion in
1979, in the face of the Act's silence on the precise issue.
Indeed, when EPA developed its RCRA authorization regulations, the
Agency initially proposed that States could obtain partial
authorization. See 43 FR 4366 (February 1, 1978). The 1978 proposal
would have allowed States ``to receive partial authorization for
selected major components of the full hazardous waste program, but only
if the State meets the requirements of equivalency, consistency, and
enforceability for each such major component.'' Id. at 4368. Commentors
on the 1978 proposed rule voiced strong opposition to this proposal,
based primarily on the burden and confusion that would result to the
regulated community due to shared EPA/State implementation
responsibilities over partial programs. In the face of these comments,
EPA announced in the 1979 final rule the current partial program
prohibition. See 44 FR 34259, (June 14, 1979).
In enacting the Hazardous and Solid Waste Amendments (HSWA) of
1984, Congress added revisions to the section 3006 authority for State
program authorization. HSWA added language to section 3006(b) of the
Act that allows the Administrator to base his or her findings of a
state program's equivalency with the Federal program on the Federal
program in effect one year prior to the submission of the state's
application. While this language could be construed as a mandate that
States eventually adopt the entire Federal program, EPA believes that
the better view of the 1984 amendment's purpose was to afford States
some relief from the need to continually update their applications to
reflect recent changes in the Federal program. In effect, this
amendment provided states with a grace period, allowing states to defer
including Federal changes that occurred within one year of the
submission of their applications. Understood in this context, EPA does
not believe that the section 3006(b) revision was intended to address
the partial program issue. Therefore, EPA believes that it retains the
discretion to allow Indian Tribes to obtain partial program
authorization.
2. Rationale for Partial Tribal Programs
The Agency believes that there are compelling reasons for allowing
Indian Tribes to operate partial RCRA programs. Fundamentally, as set
out in the EPA Indian Policy, the Agency is committed to make every
reasonable effort to recognize the sovereignty of Indian Tribes and to
eliminate any administrative barriers to the Tribes' primary
administration of programs such as RCRA Subtitle C. EPA believes that
it is a reasonable step in implementing this important policy to remove
the barrier imposed by the current regulatory prohibition of partial
RCRA programs as it affects authorization of Indian Tribes. Otherwise,
EPA believes that few, if any Tribes would participate in RCRA Subtitle
C authorization.
Indian Tribes typically have much smaller populations than States,
and there are generally limited industrial and commercial operations
conducted within the Tribe's jurisdiction. This tends to limit not only
the likelihood of substantial hazardous waste generation activities
within Indian country, but it also limits the sources of revenues to
support the activities of Tribal governments. Therefore, Indian Tribes
would not typically possess the resources to develop and carry out a
full RCRA Subtitle C program. Particularly in those areas where the
full RCRA program requires special expertise (e.g., experts in
hydrogeology to oversee RCRA corrective actions), skills and resource
shortages common among Indian Tribes would preclude most Tribes from
participating in RCRA authorization, if partial authorization were not
an option. EPA believes that it would make little sense to require
Tribal governments to develop authorities and capabilities to regulate
facilities that are not now and are unlikely ever to be present on
Tribal lands.
EPA solicits comment on the removal of the Sec. 271.1(h) partial
program prohibition only for Indian Tribes. EPA recognizes that some
States and the Insular territories may believe that they also should be
allowed to obtain partial authorizations, because of their size,
limited involvement with hazardous waste operations, or limited need
and capability to operate a full RCRA hazardous waste program. While
EPA understands these interests, the Agency believes that these factors
are present to a greater degree with Indian Tribes than with the States
and Territories. In addition, the EPA Indian Policy is a distinguishing
factor which supports this limited proposal, since it represents EPA's
commitment to eliminate
[[Page 30480]]
administrative impediments to authorizing Tribal programs. Finally, EPA
is concerned that a more general relaxation of the partial program
prohibition would result in many States either electing not to assume
new RCRA program requirements which they view as burdensome (thereby
leaving EPA with the most significant implementation burdens), or
transferring previously authorized program components back to EPA.
3. Criteria for Partial Program Authorization
Today's proposed rule includes criteria that would govern the
evaluation of Tribes' requests for partial program authorization. This
section explains these criteria.
a. Composition and size of the regulated community. EPA believes
that the most critical consideration in evaluating the appropriateness
of a partial program authorization is the composition and size of the
regulated community. The components of a Tribal hazardous waste
management program should reflect the types of facilities and the
magnitude of hazardous waste operations that are actually present, or
likely to establish operations, within the Tribal jurisdiction. This
criterion should be considered both in the context of the authorities
and capabilities which the Tribe should demonstrate in its application,
and in evaluating the allocation of regulatory oversight burdens
between a Tribe and EPA.
For example, if a Tribe's regulatory universe consists solely of
hazardous waste generators and transporters, this proposal would permit
the Tribe to demonstrate in its application the authorities and
capability to regulate these types of facilities. Such a Tribe would
need to develop regulatory counterparts to EPA's generator standards in
40 CFR parts 262 and 268, as well as transporter standards
corresponding to EPA's part 263 requirements. However, the application
would not need to include regulatory authorities for hazardous waste
landfills, incinerators, or other types of hazardous waste management
facilities which do not currently exist, and which are not likely to
ever operate within a Tribe's territorial jurisdiction.
EPA believes that partial authorization is warranted only in
instances where the Tribe has responsibility for regulating all the
facilities within a particular program. For example, Tribes which are
authorized solely for generators and transporters would be responsible
for all persons or entities that fall into those programs. Although it
would be appropriate for EPA to provide limited technical expertise and
to implement its statutory responsibilities under HSWA at facilities
regulated by the Tribal program, it would not be appropriate for EPA to
assume nearly all the regulatory burdens at such sites.
The omission from a Tribe's application of an entire class of
existing facilities may raise questions about the appropriateness of a
partial program authorization. In such cases, EPA would assess the
regulatory burden associated with the Tribe's proposed program, and the
burdens which EPA would retain as a result of regulating the class of
facilities omitted from the Tribal program. On a case-by-case basis,
EPA would determine whether the significant sovereignty interests
reflected in authorization and the regulatory burdens being assumed by
the Tribe outweigh the circumstances of EPA retaining direct
implementation responsibilities for a class of facilities. However,
where the omission of such a class of facilities would result in EPA
bearing a disproportionate regulatory burden, this proposal would view
this as grounds for a negative determination on that Tribe's request
for partial authorization. EPA solicits comments on how it should
strike the appropriate balance between Tribal and EPA interests when
evaluating partial program applications that involve some, but not all,
of a Tribe's regulated community.
b. Extent to which program components are severable. EPA's 1979
decision to prohibit partial RCRA programs was based primarily on
concerns which the regulated community identified about the confusion
which would result under a system of joint State and EPA
implementation. This concern remains today, and is perhaps even more
prominent than in 1979, given the increased growth and complexity of
the RCRA Subtitle C management program since that date. On the other
hand, the interest of avoiding dual RCRA programs should not become an
insurmountable obstacle to EPA's implementation of its Indian Policy,
particularly since dual State/EPA implementation of Subtitle C has
become fairly commonplace under the mandate of the 1984 HSWA
amendments.
EPA believes that the severability of the program elements applied
for by a Tribe is an important criterion in evaluating the merits of a
Tribe's request for a partial program authorization. In this context,
``severability'' means that there is a distinct set of requirements for
which the Tribe is exclusively responsible for program implementation.
Severability is important in avoiding or minimizing the confusion and
burdens arising from joint Tribal/EPA implementation of RCRA.
Therefore, a Tribal application will be evaluated to determine that, as
far as possible, the Tribe's application includes the authorities that
are needed to fully regulate the class or classes of facilities for
which the Tribe is seeking authorization. When this occurs, there
should be minimal confusion insofar as the particular roles and
responsibilities of the Tribe and EPA.
EPA recognizes that total severability of roles and
responsibilities may not be fully achievable. Nevertheless, an
acceptable partial program application is one that tends to clarify,
not confuse, regulatory responsibilities for hazardous waste management
activities that the Tribal program would regulate.
To meet this criterion, a Tribe seeking authorization, for example,
to regulate hazardous waste generators would need to include
authorities in its program corresponding to regulations found in
several distinct parts of Volume 40 of the Code of Federal Regulations
(CFR). While management standards specific to generators are set forth
in 40 CFR part 262, generators also become subject to RCRA permit
requirements when they store or treat hazardous wastes in tanks or
containers for a period exceeding 90 days (or 180 days for certain
small quantity generators). In these cases, counterparts to part 264
general facility, tank, and container permitting standards might also
be appropriate. Likewise, generators are subject to certain waste
analysis, certification, and other requirements included in EPA's Part
268 Land Disposal Restrictions (LDRs), and these additional generator
requirements should also be reflected in the Tribe's legal authorities.
EPA requests comment on the proposed criterion under which maximum
severability of Tribal and EPA regulatory responsibility for hazardous
waste management activities would be a persuasive factor in evaluating
Tribes' requests for partial program authorization. Under this
proposal, EPA could recognize exceptions for particular facility
requirements (e.g., HSWA corrective action) where direct EPA oversight
is needed to ensure the availability of a special technical expertise
or resources which a Tribe could not reasonably be expected to develop
and retain. This criterion is discussed in the section which follows.
c. Extent to which EPA-retained elements require special expertise.
As discussed in the preceding section, the
[[Page 30481]]
requirement of special implementation expertise may be a circumstance
warranting EPA's retention of direct oversight responsibilities for a
particular facility, of for a class of facilities. Thus, under this
proposal, EPA could approve a Tribal program that lacked regulatory
authorities to oversee existing landfills, land treatment units,
surface impoundments, or waste piles, where the Tribe's application
demonstrates that the regulation of these facilities would require the
substantial involvement of hydrogeologists or other specialists that
are not reasonably available to the Tribe. These areas of expertise
could come into play, for example, in the oversight of Subtitle C
facilities' groundwater monitoring and protection requirements, and in
overseeing the HSWA corrective action mandates to address releases of
hazardous constituents from the solid waste management units of
facilities seeking RCRA permits (40 CFR part 264, subpart F). In
addition, the need for special EPA expertise could also be present in
instances where a treatment facility is seeking authorization to
operate treatment processes that require a significant chemical or
mechanical engineering expertise to evaluate and permit.
EPA believes that it should scrutinize closely those requests for
partial program authorization that propose to exclude authority to
regulate an entire class of existing facilities because of a need for
special expertise. In many such instances, the special expertise might
only be needed occasionally, and could be provided by EPA or by
contractor as technical support to the Tribe.
More typically, special EPA expertise may be asserted as a basis
for EPA's retention of its HSWA authority for facilities otherwise
subject to a Tribe's authorized RCRA Subtitle C program. The special
technical expertise associated with the HSWA corrective action and LDR
programs may justify joint EPA/Tribal administration of RCRA at
facilities with corrective action needs or with significant involvement
in highly technical treatment processes. Under this proposal, EPA could
authorize partial Tribal programs that excluded HSWA corrective action
and LDR treatment standards, and the Tribe could be authorized to
regulate the non-HSWA aspects of the facilities' operations.
EPA requests comments on the proposal to include special EPA
expertise as a criterion for authorizing a partial Tribal program. The
Agency also solicits specific comments that would aid EPA in
identifying those elements of the RCRA Subtitle C or HSWA regulatory
programs that are suitable candidates for EPA retention, and those that
should be included within a Tribe's authorized program.
d. Extent to which there is a bona-fide waste management program
for which the Tribe possesses the necessary capability.
The final criterion proposed in this notice requires the Tribe to
demonstrate to EPA's satisfaction that there is a real and significant
presence of regulated hazardous waste management activities within the
Tribe's jurisdiction, so that the Tribe's hazardous waste management
program will constitute a bona-fide regulatory program. This criterion
also requires the Tribe to demonstrate that it has the necessary
capability to administer the partial program for which it is seeking
authorization.
The requirement of a real and significant involvement with
hazardous waste operations is not intended to suggest a quantity
threshold on the amount of waste generated or the numbers of facilities
that must be present. Rather, this requirement is intended to connote
that there must be a real or imminent universe of hazardous waste
management activities subject to regulation. As such, a speculative
possibility or interest does not meet this criterion.
Further, to be authorized, a program must also be able to
demonstrate the necessary capability to oversee the universe of
regulated hazardous waste activities, and administer the program's
legal authorities and guidance. Capability is a concept that addresses,
among other factors, the mix of resources and skills which a Tribe will
need to implement successfully its hazardous waste program. EPA
currently applies capability criteria to States that seek RCRA Subtitle
C authorization. The capability implications of this proposal are
discussed below in section IV.H.6 of this preamble.
4. Minimal Program Considerations
EPA believes that there are certain RCRA hazardous waste program
elements which, at a minimum, must be present in every application for
a partial RCRA program authorization. In other words, there is a
``floor set'' of program elements, which if not included in an
application, could constitute grounds for rejection of a Tribal program
application.
EPA proposes that Tribal counterparts to the following Federal
program elements would constitute the minimal program for which a Tribe
could seek partial program authorization:
The appropriate subset of definitions in 40 CFR part 260
corresponding to the hazardous waste program within the Tribe's
application;
Waste identification requirements in 40 CFR part 261;
Generator requirements in 40 CFR parts 262 and 268; and
Transporter requirements in 40 CFR part 263.
Additionally, Interim Status Standards, 40 CFR part 265, cover two
types of units, newly regulated units (recently included as a RCRA
Subtitle C facility due to new regulations) and non-notifiers (such as
those operating as illegal Subtitle C units which become identified
through inspections or other means). Units identified as subject to
RCRA Subtitle C which were not previously regulated will be subject to
parts 264 and 265 closure requirements. U.S. EPA will be responsible
for permitting and/or closure of those units subject to part 265 for
Tribes that choose not to adopt these regulations as part of their
authorized program. Tribes that become authorized for part 265 will be
responsible for permitting and/or closure (whichever is appropriate) of
these units.
EPA requests comments on the appropriateness of these minimum
program elements for defining an acceptable partial RCRA Subtitle C
program for Tribes.
5. Financial Assurance Requirements for Tribally Owned and Operated
Facilities
RCRA Subtitle C requires owners and operators of hazardous waste
treatment, storage, and disposal facilities to provide financial
assurance for closure, post-closure care, liability for injury to third
persons and corrective action.
The Federal financial assurance regulations exempt State and
federally-owned or operated facilities from the financial assurance
requirements (See 40 CFR 264.140(c)), because it is EPA's belief that
State and Federally-owned or operated facilities will always have
adequate resources to conduct closure and post-closure care activities
properly (See 45 FR 33154, 33198, May 19, 1980). Notwithstanding that
today's proposal would give Tribes, like States, the authority to
operate a hazardous waste regulatory program in lieu of the Federal
program, it would not change the applicability of the existing
requirements by exempting tribally-owned or operated facilities from
the financial assurance requirements. Tribally-owned or operated
facilities subject to an authorized Tribal hazardous waste regulatory
program, therefore, would continue to have to comply with the financial
assurance
[[Page 30482]]
requirements like all other owners and operators of treatment, storage
or disposal facilities, private or public, that are not State or
federally-owned or operated facilities.
EPA is not proposing to extend the State/Federal exemption to
Tribes because EPA believes that the financial resources that would be
available to a specific Tribe in the event closure, post-closure, or
liability obligations were triggered should be evaluated. EPA believes
that Tribal members will not enjoy an equivalent degree of protection
from a tribally operated program unless there are assurances provided
that there will be adequate resources to address these obligations.
Because at this time many Tribes may not have the tax base or other
means of raising revenue as do the States and the Federal government,
EPA believes that, as a general matter, it would not be prudent to
extend to Tribally owned or operated facilities the financial assurance
exemption. The financial assurance requirements ensure that certain
protections will be available to persons who might be negatively
affected by a facility. EPA believes that financial compensation should
be available to members of Indian Tribes (as they are for citizens of
States) for third party injuries or for clean-ups if needed. The costs
associated with closure and post-closure care activities, not to
mention liability compensation to injured parties, could greatly burden
Tribal administrations and, if unavailable, could compromise Tribal
members' health and environment.
EPA is, however, soliciting comment on the possibility of
developing a special financial test for tribally owned/operated
facilities subject to RCRA Subtitle C, identical or similar to that
developed for MSWLFs Local Government (``LOGO'') Test under
Sec. 258.74(f). The ``LOGO'' consists of a (1) financial component, (2)
a public notice component, and (3) a record keeping and reporting
component. A local government must satisfy each of the three components
to pass the test and must pass the test on an annual basis.
EPA is also interested in receiving comments on other options that
would provide the same level of protection to tribal citizens currently
afforded by the financial requirements of Sec. 264.140(c).
6. EPA's Retained Authority
Under this proposal, EPA would retain responsibility for
implementing the RCRA and HSWA program authorities not included in a
Tribe's authorized partial program. For example, if a Tribe received
authorization for only a generator, transporter, and non-HSWA storage
facility program, EPA would retain responsibility for regulating any
incinerators, landfills, or other treatment or disposal facilities, and
for implementing the HSWA corrective action requirements at all TSD
facilities. This situation contrasts significantly from that which
occurs in States, where partial program authorizations are not
available. In authorized States, for example, the States regulate all
types of treatment, storage, or disposal facilities (TSDFs). In these
States, EPA implements only the HSWA program, and only until the States
receive authorization for the HSWA authorities. EPA emphasizes that
this proposal would not diminish the scope of the overall RCRA Subtitle
C program applicable in Indian Country. A Tribe's approved partial
program components, considered together with the program components
retained by EPA, would define a complete RCRA hazardous waste program
with the authority and flexibility to respond to the full gamut of
facilities, releases, or other circumstances.
7. Capability Considerations
In administering the Subtitle C authorization program under RCRA
section 3006, EPA realizes that a State or Tribal hazardous waste
management program cannot be judged solely by whether it has equivalent
legal authorities and whether it can provide acceptable forms of
documentation. Indeed, EPA's overarching objective in authorization is
to approve quality programs that are protective of health and the
environment. Therefore, EPA looks beyond the elements of a State's
authorities (i.e., its legal codes, policies, forms) and evaluates the
capability of the State agencies to implement and manage their
substantive Subtitle C program responsibilities.
Under current policies and procedures, EPA conducts a capability
assessment both when a State seeks its initial or ``base program''
authorization, and subsequently when the State adopts program revisions
which the EPA Region determines may have major impacts on the State's
hazardous waste program. The adoption of rules bringing a significant
class of new generators or permitted facilities into the State's
program, or the adoption of the HSWA corrective action program, are
examples of revisions that would likely trigger a new capability
assessment.
Capability is a fluid concept that does not typically lend itself
to precise measurement. While capability can fluctuate in the short-
term due to a response to budget cuts or loss of key staff, EPA's goal
in conducting capability assessments is to focus on the overall, long-
term performance of a State's program, and the expected future
performance. The emphasis is placed on a program's long-term (typically
3 years or more) effectiveness, its ability to meet its commitments
over the long term, indicators of constant improvement over time, as
well as consistency in performance. Critical program areas that are
assessed include enforcement, permitting, corrective action, and
program management. In each area, current guidance suggests factors
that are indicative of a capable program, and factors that may be
indicative of a capability problem. For example, in the enforcement
area, the assessment would examine a State's enforcement strategies,
its record for completing quality inspections, its violation
classification plan and record, its record of taking timely enforcement
responses that are appropriate to the severity of violations, and its
proven ability to meet its grant commitments in the enforcement area.
In the management area, EPA examines whether sufficient resources are
committed to the hazardous waste program, whether there is a proper mix
of staff and skills to carry out the program, whether the State
provides appropriate training, and whether the State maintains the
necessary information management systems to oversee the program.
Additional criteria are suggested for the permitting and corrective
action areas. See RCRA State Authorization Capability Assessment
Guidance, revision dated October, 1991.
EPA is proposing to apply the same capability assessment criteria
to Tribal programs that it currently applies to States. However,
capability will be evaluated only with respect to the program
components for which an Indian Tribe is seeking authorization. As is
currently the practice with States, the assessment should be conducted
at the time of a Tribe's initial authorization application, as well as
at subsequent times when the Tribe is adopting program revisions that
may have a significant impact on its authorized program.
Because of the availability in this proposal of partial program
authorization, capability considerations may have quite different
effects for Indian Tribes as they do for States. First, capability may
fundamentally affect the scope of the Subtitle C program for which a
Tribe seeks authorization. Under this proposal, a Tribe need not
develop capabilities to permit or oversee all types of RCRA facilities.
In some instances, the Tribe may never need to
[[Page 30483]]
concern itself with certain types of facilities, while in other
instances, the skills and capabilities may be more appropriately
retained and implemented by EPA. In either case, the lack of a
particular capability would not necessarily be viewed as an impediment
to authorization; rather, it may only affect the scope of the program
for which the Tribe would be eligible to obtain authorization. In
practice, Tribes would be expected to limit their program applications
to those areas where they can demonstrate the requisite capability. EPA
would also have the discretion to authorize less than all the program
components applied for by a Tribe, where capability issues specific to
one or more components of an application are not resolved to EPA's
satisfaction.
The relationship of capability to partial programs is a very
significant aspect of this proposal. This approach to capability
assessments is consistent with the EPA's Indian Policy mandate that EPA
remove administrative impediments to Tribal primacy in administering
environmental programs such as RCRA.
EPA believes, however, that there are limits on the extent to which
it should tailor a program authorization to a Tribe's demonstrated
capability. A hazardous waste program that is exceedingly narrow in
scope may not be appropriate for authorization, despite the importance
attached to authorization as a means of recognizing a Tribe's
sovereignty. Therefore, EPA believes that the minimal program
considerations discussed above in section IV.H.4 of this preamble are
helpful in determining the minimal capabilities that must be present to
warrant an authorization review. Likewise, in cases where the
allocation of program burdens that would result from a partial
authorization would leave EPA with disproportionate and substantial
responsibilities, EPA may also withhold partial authorization. This
follows from the fact that the investment by EPA of resources in
overseeing an approved program of very narrow scope would only drain
resources that might be better used by EPA to discharge its own
implementation responsibilities.
EPA's evaluation of capability may also consider if applicable, the
relationship between the existing or proposed Tribal agency that will
implement the hazardous waste program and any potential regulated
Tribal entities. It is not uncommon for a Tribe to be both regulator
and regulated entity, which may result in a potential conflict of
interest. Independence of the regulator and regulated entity best
assures effective and fair administration of a hazardous waste program.
Tribes will generally not be required to divest themselves of ownership
of any regulated entities to address any potential conflict. Nor is the
Agency intending to limit Tribal flexibility in creating structures
that will ensure adequate separation of the regulator and regulated
entity. Instead, this discussion is intended to alert Tribes at an
early date about potential problems in obtaining program authorization.
8. Review Standards
While EPA is today proposing to allow Indian Tribes to obtain
partial RCRA program authorization, the Agency is not proposing any
alteration to the review standards that will be used to evaluate the
merits of Tribes' applications. That is, unless otherwise noted, the
Tribe's application must demonstrate that each component of the Tribe's
partial program meets the statutory authorization criteria.
Specifically, the Tribe must show that each program component is
equivalent to the corresponding Federal program requirements. Each
component must be consistent with the Federal program and with the RCRA
Subtitle C programs applicable in other authorized states. In addition,
the Tribe must show that the components are no less stringent than the
corresponding Federal program requirements, except for those
requirements (e.g. civil or criminal enforcement) to which the Tribe
agrees in the MOA to transfer to EPA.
To the extent that an Indian Tribe's partial program would include
permitting authority for treatment, storage, or disposal facilities
(TSDFs), the Tribe's program would also be required to meet the
statutory requirements for public participation in the issuance of RCRA
permits. RCRA also requires, pursuant to section 3006(f), that the
Tribes demonstrate that their program provides for the public
availability of information regarding hazardous waste management
facilities and sites, in substantially the same manner, and to the same
degree, as EPA would provide information to the public under the
Federal Freedom of Information Act, 5 U.S.C. 301, 552, 553, 40 CFR part
2.
9. Obligation to Adopt Program Revisions
The current authorization regulations at 40 CFR part 271 impose a
continuing obligation on authorized states to update their authorized
programs to reflect revisions made to the Federal regulatory program.
Under 40 CFR 271.21, there are schedules imposed by which States must
adopt counterparts to Federal program changes, and procedures for
submitting these program revisions to EPA for authorization. In
addition, Sec. 271.21(a) requires that an authorized State notify EPA
of any proposed modifications to its basic statutory or regulatory
authority, as well as to its forms, procedures, or priorities. The
obligation to keep EPA informed of proposed program changes applies
both to changes proposed in response to Federal program revisions, and
to proposed changes that are initiated solely as a matter of state law
or policy.
EPA proposes that these same obligations would apply to Indian
Tribes' authorized partial programs. Tribes would be required to notify
EPA of any significant, proposed changes to their basic legal
authorities, policies, forms, or priorities, and to modify their
programs in response to Federal program revisions according to the
schedules in Sec. 271.21. However, the obligation to modify a partial
program and seek EPA authorization of revisions would be more limited
than in the case of other authorized States. An Indian Tribe's
obligation would extend only to Federal revisions which directly affect
the components of the Tribe's authorized program. For example, a
partial program which regulates only RCRA generators and transporters
would need to undergo a revision to address a change to the Hazardous
Waste Uniform Manifest promulgated by EPA, since that change affects
directly the waste management requirements for generators and
transporters. However, the same partial program would not need to
undergo a revision to address new Federal standards for incinerator
emissions, since incinerators are beyond the scope of the approved
partial program.
EPA recognizes that there is the potential for some confusion in
identifying the extent to which approved partial programs must undergo
revision to address Federal program changes. The Agency believes that
Tribes and the EPA regions will need to confer closely on Federal
program revisions, and reach an understanding on those that will
trigger the need for a Tribal program modification. An agreement on the
scope of the Tribe's responsibility to modify its approved program
should be included in the annual workplan that would be negotiated by
EPA and the Tribe in conjunction with the Tribe's receipt of RCRA 3011
grant funds to administer its authorized hazardous waste program. Of
course, Federal program changes that are determined
[[Page 30484]]
not to affect the Tribe's partial program would remain EPA's
responsibility to implement. Therefore, there would be no loss of
overall program coverage, since the Tribe's partial program and the
program retained by EPA should together constitute a full RCRA Subtitle
C program.
EPA requests comment on the proposal to subject Indian Tribe's
partial programs to the same review standards and schedules for program
modifications that apply currently to States. The Agency is
particularly interested in comments that suggest ways to reduce the
potential for confusion in implementing the review of partial programs
and in defining Tribes' responsibilities to update their partial
programs.
V. Other Regulatory Requirements
A. Compliance with Executive Order
Under Executive Order 12866 [58 FR 51735 (October 4, 1993)], EPA
must determine whether the regulatory action is ``significant'' and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, productivity,
competition, jobs, the environment, public health or safety, or state,
local or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
EPA believes that today's proposed rule raises a novel policy
issue, one which arises out of the President's priority to build
relationships with Tribal governments.
EPA has concluded that this rule is ``significant'' and is
therefore subject to OMB review pursuant to Executive Order 12866. In
addition, EPA believes that today's proposed rule is consistent with
the regulatory philosophy and principles identified in the Executive
Order.
B. Regulatory Flexibility Act
Section 603 of the Regulatory Flexibility Act (the Act) (15 U.S.C.
8091 et seq. Pub. L. 96-534, September 19, 1980) requires EPA to
prepare and make available for comment a regulatory flexibility
analysis in connection with rulemaking. The initial regulatory
flexibility analysis must describe the impact of a proposed rule on
small business entities. If, however, a regulation will not have a
significant impact on a substantial number of small business entities,
no such analysis is required.
EPA has determined that this proposal will not impact significantly
a substantial number of small business entities. Therefore, a
regulatory flexibility analysis is not required.
EPA's determination of no significant impact is based on the fact
that this proposal affects only the determination of what government
entity shall administer the RCRA program in Indian country. It does not
affect the regulatory requirements to which hazardous waste management
facilities, including any small business entities, are subject.
This proposed regulation, if promulgated, does not require the
Indian Tribes to obtain authorization to operate a hazardous waste
program. The decision whether to obtain authorization rests with each
individual Indian Tribe. If a Tribe determines that obtaining
authorization to operate a hazardous waste program will not be
advantageous, including economically advantageous, to the Tribe, the
Tribe may decide not to seek authorization. In addition, EPA believes
that the number of Indian Tribes that will apply for authorization to
operate a hazardous waste program under this proposed rule, if
promulgated, will be small as compared with the total number of Indian
Tribes potentially eligible for authorization.
Notwithstanding the voluntary nature of the authorization, the
Agency also considers alternatives to a full program authorization. As
an alternative to obtaining authorization to operate a full hazardous
waste program, the Agency is proposing to allow a Tribe to apply for
and receive authorization to operate a partial hazardous waste program.
Allowing a Tribe the option to apply for and obtain authorization to
operate a partial hazardous waste program will lessen the impact, if
any, on the Tribe as a result of this proposed rule.
The proposed regulation will not have a significant adverse impact
on a substantial number of small businesses or small organizations.
Since RCRA already imposes requirements on all owners and operators of
hazardous waste treatment, storage, and disposal facilities in Indian
country, EPA believes that the proposed rule, if promulgated, will not
add requirements beyond those already imposed under the Federal RCRA
requirements. Although it is conceivable that an Indian Tribe could
impose greater requirements upon an owner or operator of a hazardous
waste facility, such situations are likely to be rare. Moreover, any
additional impacts, including economic impacts, resulting from
implementation of this proposed rule, if promulgated, is expected to be
negligible, since Tribal regulation of these activities is limited to
areas within Tribal jurisdiction.
Therefore, pursuant to section 605(b) of the Regulatory Flexibility
Act, 5 U.S.C. 605(b), the Administrator certifies that this proposed
rule will not have a significant economic impact on a substantial
number of small entities.
C. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 1778.01) and a copy may be obtained from Sandy Farmer, OPPE
Regulatory Information Division; U.S. Environmental Protection Agency
(2137); 401 M St., SW., Washington, DC 20460 or by calling (202) 260-
2740.
In order to extend to Indian Tribes the opportunity to become
authorized to administer hazardous waste programs in lieu of EPA, EPA
needs to make a determination that the proposed program fully meets
federal criteria. In general, to obtain authorization, Tribes must meet
the same criteria as the States as outlined in 40 CFR part 271,
including a demonstration of capability, which is assessed in the same
manner as those from States.
To make a final determination, EPA must collect information in the
form of an application from Tribes. Pursuit of authorization is
entirely voluntary, and the universe of respondents involved in this
information collection will be limited to those Tribes seeking approval
of their hazardous waste programs. However, interested Tribes must
submit all of the required information to EPA in order for EPA to make
a final determination. The information which Tribes would submit is
public information; therefore, no problems of confidentiality or
sensitive questions arise.
Each respondent would only have to respond once, and the EPA is
estimating the number of responses at six per year for the three year
period covered by this ICR, for a total of eighteen. The
[[Page 30485]]
projected annual cost and hour burden per respondent for the submittal
of an application is approximately 358 hours, at a cost of $7,990. The
projected totals for all eighteen estimated respondents over three
years are approximately 6,444 hours and $143,832. In addition, cost
estimates for the annual respondent reporting and recordkeeping per
respondent range from $219 (low end) to $6,369 (high end). The
projected respondent reporting and recordkeeping total range, also with
six respondents a year for three years, is from $3,942 to $114,642.
These costs represent start-up or capital costs. There are no
operation and maintenance reporting or purchase of services costs
associated with the proposed RCRA Subtitle C Indian Authorization Rule.
Given these parameters, the bottom line respondent burden and cost
estimate is for 6,444 hours and ranges from $147,774 to $258,474 over
three years.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR ch. 15.
Comments are requested on the Agency's need for this information,
the accuracy of the provided burden estimates, and any suggested
methods for minimizing respondent burden, including through the use of
automated collection techniques. Send comments on the ICR to the
Director, OPPE Regulatory Information Division; U.S. Environmental
Protection Agency (2137); 401 M St., SW., Washington, DC 20460; and to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, 725 17th St., NW., Washington, DC 20503, marked
``Attention: Desk Officer for EPA.'' Include the ICR number in any
correspondence. Since OMB is required to make a decision concerning the
ICR between 30 and 60 days after June 14, 1996, a comment to OMB is
best assured of having its full effect if OMB receives it by July 15,
1996. The final rule will respond to any OMB or public comments on the
information collection requirements contained in this proposal.
D. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995 (the
Act), Pub. L. 104-4, which was signed into law on March 22, 1995, EPA
generally must prepare a written statement for rules with Federal
mandates that may result in estimated costs to State, local, and tribal
governments in the aggregate, or to the private sector, of $100 million
or more in any one year. When such a statement is required for EPA
rules, under section 205 of the Act EPA must identify and consider
alternatives, including the least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the rule. EPA
must select that alternative, unless the Administrator explains in the
final rule why it was not selected or it is inconsistent with law.
Before EPA establishes regulatory requirements that may significantly
or uniquely affect small governments, including tribal governments, it
must develop under section 203 of the Act a small government agency
plan. The plan must provide for notifying potentially affected small
governments, giving them meaningful and timely input in the development
of EPA regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising them on compliance
with the regulatory requirements.
The Act generally excludes from the definition of a ``Federal
intergovernmental mandate'' (in sections 202, 203, and 205) duties that
arise from participation in a voluntary Federal program. Tribal
requests for authorization of their RCRA Subtitle C programs are
voluntary and impose no Federal intergovernmental mandate within the
meaning of the Act. Rather, by having its hazardous waste program
authorized, a Tribe gains the authority to implement its hazardous
waste program in lieu of the federal hazardous waste program within its
jurisdiction. Thus, because today's rule does not constitute a
``Federal intergovernmental mandate'' under the Act, EPA has not
conducted the analyses required by section 202 and 205 of the Act.
As to section 203 of the Act, the authorization of a Tribal program
will not significantly or uniquely affect small governments other than
the applicants. As to the applicants, Tribes have received notice of
the requirements of an authorized program (through this rulemaking
process), and will have meaningful and timely input into the
development of their individual program requirements throughout the
authorization process. The Tribes therefore are fully informed as to
compliance with the authorized program. Thus, any applicable
requirements of section 203 of the Act have been satisfied.
List of Subjects
40 CFR Part 35
Environmental protection, Hazardous waste.
40 Parts 270 and 271
Environmental protection, Administrative practice and procedure,
Hazardous waste, Indians-lands, Reporting and recordkeeping
requirements.
Dated: May 20, 1996.
Carol M. Browner,
Administrator.
Therefore, it is proposed that 40 CFR parts 35, 270 and 271 be
amended as follows:
PART 35--STATE, TRIBAL AND LOCAL ASSISTANCE
Subpart A--Financial Assistance for Containing Environmental
Programs
1. The authority citation for part 35, subpart A, continues to read
as follows:
Authority: Secs. 105 and 301(a) of the Clean Air Act, as amended
(42 U.S.C. 7405 and 7601(a)); secs. 106, 205(g), 205(j), 208, 319,
501(a), and 518 of the Clean Water Act, as amended (33 U.S.C. 1256,
1285(g), 1285(j), 1288, 1361(a) and 1377); secs. 1443, 1450, and
1451 of the Safe Drinking Water Act (42 U.S.C. 300j-2, 300j-9, and
300-11); secs. 2002(a) and 3011 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act of 1976 (42
U.S.C. 6912(a), 6931, 6947, and 6949); and secs. 4, 23, and 25(a) of
the Federal Insecticide, Fungicide and Rodenticide Act, as amended
(7 U.S.C. 136(b), 136(u) and 136w(a)).
2. Section 35.105 is amended by adding a sentence to the end of the
definition of ``Eligible Indian Tribe,'' and by revising the definition
of ``Indian Tribe'' to read as follows:
Sec. 35.105 Definitions.
* * * * *
Eligible Indian Tribe means, * * * For purposes of the Resource
Conservation and Recovery Act Subtitle C, any federally recognized
Indian Tribe
[[Page 30486]]
that meets the requirements set forth at Sec. 35.515.
* * * * *
Indian Tribe means, for purposes of the Public Water System
Supervision, Underground Water Source Protection, or Hazardous Waste
Management grants, any Indian Tribe, band, group, or community
recognized by the Secretary of the Interior and having a governmental
body carrying out substantial governmental duties or powers over a
defined area. For purposes of grants under the Clean Water Act, the
term ``Indian Tribe'' means any Indian Tribe, band, group, or community
recognized by the Secretary of the Interior and having a governmental
body exercising substantial governmental duties and powers over a
Federal Indian reservation.
* * * * *
Sec. 35.500 [Amended]
3. In Sec. 35.500 by removing the words ``(as defined in section
1004 of the Act).''
4. Section 35.515 is added under the heading ``Hazardous Waste
Management'' (Section 3011) to read as follows:
Sec. 35.515 Eligible Indian Tribes.
The Regional Administrator may award Resource Conservation and
Recovery Act section 3011(a) grants to Indian Tribes that meet the
definition of ``Indian Tribe'' set forth in 40 CFR 35.105 and that have
submitted the information described at 40 CFR 271.27(a)(3)(ii).
PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE
PERMIT PROGRAM
The authority citation for part 270 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and
6974.
5. In Sec. 270.2, by revising the definition of ``State,'' and by
adding in alphabetical order definitions for ``Indian Tribes'' and
``Indian country'' to read as follows:
Sec. 270.2 Definitions.
* * * * *
Indian country means: (1) All lands within the limits of any Indian
reservation under the jurisdiction of the United States Government,
notwithstanding the issuance of any patent, and including rights-of-way
running through the reservation;
(2) All dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a State;
and
(3) All Indian allotments, the Indian titles to which have not been
extinguished, including rights of way running through the same.
* * * * *
Indian Tribe means any Indian Tribe, band, nation, or community
that is recognized by the Secretary of the Interior and that has a
governmental body exercising substantial governmental duties and
powers.
* * * * *
State means any of the 50 States, the District of Columbia, Guam,
the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa,
and the Commonwealth of the Northern Mariana Islands. For purposes of
Sections 3006 and 3011 of RCRA, the term State also extends to Indian
Tribes.
* * * * *
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE AND TRIBAL
HAZARDOUS WASTE PROGRAMS
The authority citation for part 271 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a) and 6926.
6. In Sec. 271.1 by revising paragraph (h) and adding paragraph (k)
to read as follows:
Sec. 271.1 Purpose and scope.
* * * * *
(h) Partial State programs are not allowed for programs operating
under RCRA final authorization, except as provided in Sec. 271.27 for
partial programs operated by Indian Tribes. However, in many cases
States will lack authority to regulate activities in Indian country.
This lack of authority does not impair a State's ability to obtain full
program authorization in accordance with this subpart, i.e., inability
of a State to regulate activities in Indian country does not constitute
a partial State program. EPA will administer the program in Indian
country if neither the State or Indian Tribe has program authority.
* * * * *
(k) The substantive provisions and procedures specified in this
subpart for State program submissions, and for EPA's approving,
revising, and withdrawing authorization of State programs apply to
programs operated by Indian Tribes. Additional substantive and
procedural requirements that are applicable only to programs operated
by Indian Tribes are set forth at Sec. 271.27 of this subpart.
7. By adding Sec. 271.27 to read as follows:
Sec. 271.27 Requirements for Indian Tribe Programs.
(a) The substantive requirements and procedures established in
Subpart A for State hazardous waste programs shall apply to Indian
Tribe programs, except that:
(1) The disallowance of partial RCRA programs contained in
Sec. 271.1(h) shall not apply to partial Indian Tribe programs that
meet the criteria in paragraph (b) of this section.
(2) The Tribal Chairman or equivalent official shall be substituted
for the Governor of the State in requesting program authorization under
Sec. 271.5(a)(1).
(3) (i) The Program Description discussed in Sec. 271.6 shall also
include a map, legal description, or other information sufficient to
identify the geographical extent of the Indian country over which the
Indian Tribe seeks jurisdiction. This information shall also identify
the location of any generator, transporter, and treatment, storage, or
disposal facility subject to RCRA Subtitle C requirements.
(ii) The Program Description discussed in Sec. 271.6 shall also
include a demonstration that the Tribe; is recognized by the Secretary
of the Interior; has an existing government exercising substantial
governmental duties and powers; has adequate civil regulatory
jurisdiction over the subject matter and entities to be regulated; and
is reasonably expected to be capable of administering the federal
environmental program for which it is seeking authorization. If the
Administrator has previously determined that a Tribe has met these
prerequisites for another EPA program authorization, then that Tribe
need provide only that information unique to the RCRA hazardous waste
program.
(4) (i) The Tribal Legal Certification (the equivalent to the
Attorney General's Statement described in Sec. 271.7) shall be
submitted and signed by the Tribal attorney or by an equivalent
official retained by the Indian Tribe for representation in matters
before EPA or the courts pertaining to the Indian Tribe's program. The
Certification shall include an assertion that the attorney has the
authority to represent the Tribe with respect to the Tribe's
authorization application.
(ii) Where an Indian Tribe asserts its jurisdiction over activities
on non-member fee lands within the boundaries of a reservation, the
Tribal Legal
[[Page 30487]]
Certification shall clearly identify the activities and areas affected
by that claim. The Tribal Legal Certification shall also include an
analysis of the Tribe's authority to implement the permitting and
enforcement provisions of subpart C on those non-member fee lands.
(5) The Memorandum of Agreement described in Sec. 271.8 shall be
executed by the Indian Tribe's counterpart to the State Director; e.g.
the Director of the Tribal Environmental Office, Program or Agency.
Indian Tribes are not required to meet the requirements of
Sec. 271.16(a)(3)(ii) for the purposes of criminal authority over non-
Indians or for the purposes of imposing criminal fines over $5,000.00.
The Memorandum of Agreement required in 271.8 shall include a provision
for the timely and appropriate referral to the Regional Administrator
for those criminal enforcement matters where that Tribe does not have
authority (i.e., those addressing criminal violations by non-Indian or
violations meriting penalties over $5,000.00). The Agreement shall also
identify any enforcement agreements that may exist between the Tribe
and any State.
(b) Indian Tribes may apply for and receive authorization from EPA
to operate a partial RCRA program. A partial program may be approved
when the Indian Tribe's application demonstrates to EPA's satisfaction
that the following factors are present:
(1) The composition and size of the Indian Tribe's regulated
community warrant the development and operation of a partial program.
(2) The components for which the Indian Tribe seeks authorization
are severable from the remainder of the program retained by EPA, so
that the respective roles and responsibilities of the Indian Tribe and
EPA will be reasonably ascertainable and implementable.
(3) The program components applicable to the Indian Tribes'
regulated community that would be retained by EPA, reasonably require a
special expertise that is not readily available to the Indian Tribe.
(4) The program components for which the Indian Tribe seeks
authorization define a bona-fide and significant hazardous waste
management program for which the Indian Tribe possesses the capability
to implement and manage.
(c) A partial RCRA program may not be approved under paragraph (b)
of this section, unless it includes, at a minimum, counterparts to the
following Federal program requirements:
(1) Appropriate definitions in 40 CFR part 260.
(2) Waste identification requirements of 40 CFR part 261.
(3) Generator requirements set forth in 40 CFR parts 262 and 268.
(4) Transporter requirements contained in 40 CFR part 263.
(5) Facility permitting standards in 40 CFR part 264, appropriate
for the types of hazardous waste management facilities within the
Indian Tribe's jurisdiction. However, specific facility permitting
standards may be waived if EPA has retained permit issuance authority
for the treatment, storage, and disposal facilities within the Tribe's
jurisdiction.
(d) When a partial RCRA program is approved under this section, EPA
retains direct implementation and enforcement responsibilities for
those program components which are not included in the Indian Tribe's
approved program.
(e) The provisions of Sec. 271.21 on program revisions apply to
Indian Tribe programs, except that an Indian Tribe's obligation to
modify its authorized program to address subsequent Federal program
changes extends only to those Federal program changes that directly
affect the components of the Indian Tribe's authorized program.
Subsequent Federal program changes promulgated under non-HSWA authority
shall not take effect in an authorized Indian Tribe until the Indian
Tribe has adopted the change under its laws and EPA has approved the
program revision. However, amendments to HSWA provisions for which a
Tribe is not authorized shall take effect under Federal authority
immediately upon the effective date of the rule.
[FR Doc. 96-15186 Filed 6-13-96; 8:45 am]
BILLING CODE 6560-50-P
