Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices 21191

EPCRA requires certain businesses to

submit reports each year on the amounts

of toxic chemicals their facilities release

into the environment or otherwise

manage. The purpose of this

requirement is to inform the public and

government officials about chemical

management practices of specified toxic

chemicals.

The current reporting requirements

apply to facilities in the manufacturing

sector (Standard Industrial

Classification codes 20–39), that have 10

or more full-time employees, and that

manufacture, process, or otherwise use

one or more chemicals on the section

313 list of toxic chemicals above certain

reporting thresholds.

EPA has been in the process of

evaluating several industries for

potential addition under EPCRA section

313. EPA has developed an issues paper

that presents background information

on this effort, EPA’s analytical

approach, preliminary findings that

indicate which industries may be

potential candidates for addition, and

several issues that will affect how these

facilities might be affected if they were

to be covered under EPCRA section 313.

Copies of this issues paper will be

available on or before May 1, 1995, from

the address or telephone number cited

under FOR FURTHER INFORMATION

CONTACT. Oral statements will be

scheduled on a first-come first-serve

basis by calling the Emergency Planning

and Community Right-to-Know Hotline

at the number listed under FOR

FURTHER INFORMATION CONTACT.

All statements will be made part of the

public record and will be considered in

the development of any proposed rule

amendment.

Dated: April 21, 1995.

Susan B. Hazen,

Acting Director, Office of Pollution Prevention

and Toxics.

[FR Doc. 95–10620 Filed 4–28–95; 8:45 am]

BILLING CODE 6560–50–F

[FRL–5198–9]

Campo Band of Mission Indians; Final

Determination of Adequacy of Tribal

Municipal Solid Waste Permit Program

AGENCY: Environmental Protection

Agency.

ACTION: Notice of Final Determination of

Full Program Adequacy for the Campo

Band of Mission Indians Application.

SUMMARY: Section 4005(c)(1)(B) of the

Resource Conservation and Recovery

Act (RCRA), as amended by the

Hazardous and Solid Waste

Amendments of 1984, requires states to

develop and implement permit

programs to ensure that municipal solid

waste landfills which may receive

hazardous household waste or small

quantity generator waste will comply

with the revised Federal Municipal

Solid Waste Landfill Criteria (40 CFR

part 258 or Federal Criteria). RCRA

section 4005(c)(1)(C) requires the

Environmental Protection Agency (EPA)

to determine whether states have

adequate ‘‘permit’’ programs for

municipal solid waste landfills

(MSWLFs). EPA believes that adequate

authority exists under RCRA to allow

tribes to seek an adequacy

determination for purposes of sections

4005 and 4010.

The Campo Band of Mission Indians

(Campo Band) applied for a

determination of adequacy under

section 4005 of RCRA. EPA reviewed

the Campo Band’s application and

proposed a determination that the

Campo Band’s MSWLF permit program

is adequate to ensure compliance with

the revised MSWLF Criteria. After

consideration of all comments received,

EPA is today issuing a final

determination that the Campo Band’s

program is adequate.

EFFECTIVE DATE: The determination of

adequacy for the Campo Band shall be

effective on May 1, 1995.

FOR FURTHER INFORMATION CONTACT: U.S.

EPA Region 9, 75 Hawthorne Street, San

Francisco, California 94105, Attn: Ms.

Christiane M. Camp, Mail Code H–W–

3, telephone (415) 744–2097.

SUPPLEMENTARY INFORMATION:

I. Background

On October 9, 1991, EPA promulgated

revised criteria for MSWLFs (40 CFR

part 258). Subtitle D of RCRA, as

amended by the Hazardous and Solid

Waste Amendments of 1984, requires

states (and, as discussed below, allows

Indian tribes) to develop permitting

programs to ensure that MSWLFs

comply with the Federal Criteria under

40 CFR part 258. Section 4005 of RCRA

also requires that EPA determine the

adequacy of state MSWLF permit

programs to ensure that facilities

comply with the revised Federal

Criteria. EPA has drafted and is in the

process of proposing a State/Tribal

Implementation Rule (STIR) that will

provide procedures by which EPA will

approve, or partially approve, state/

tribal landfill permit programs. As

explained below, the Agency intends to

approve adequate state/tribal MSWLF

permit programs as applications are

submitted. These approvals are not

dependent on final promulgation of the

STIR. Prior to promulgation of the STIR,

adequacy determinations will be made

based on the statutory authorities and

requirements. In addition, states/tribes

may use the draft STIR as an aid in

interpreting these requirements.

EPA is extending to tribes the same

opportunity to apply for permit program

approval as is available to states.

Providing tribes with the opportunity to

apply for adequacy for purposes of

adopting and implementing permit

programs is consistent with the EPA

Policy for the Administration of

Environmental Programs on Indian

Reservations (November 8, 1984) (EPA’s

Indian Policy). This Policy, formally

adopted in 1984, recognizes tribes as the

primary sovereign entities for regulating

the reservation environment and

commits the Agency to working with

tribes on a ‘‘government-to-government’’

basis to effectuate that recognition. A

major goal of EPA’s Indian Policy is to

eliminate all statutory and regulatory

barriers to tribal assumption of federal

environmental programs. Today’s

determination to approve a tribal

MSWLF permit program represents

another facet of the Agency’s continuing

commitment to the implementation of

this long-standing policy.

EPA’s interpretation of RCRA is

governed by the principles of Chevron,

USA v. NRDC, 467 U.S. 837 (1984).

Where Congress has not directly

addressed the precise question at issue

or otherwise explicitly stated its intent

in the statute or in legislative history,

the Agency charged with implementing

that statute may adopt any

interpretation which, in the Agency’s

expert judgment, is reasonable in light

of the goals and purposes of the statute

as a whole. Id. at 844. Interpreting

RCRA to allow tribes to apply for an

adequacy determination satisfies the

Chevron test.

States generally are precluded from

enforcing their civil regulatory programs

in Indian country, absent an explicit

Congressional authorization. California

v. Cabazon Band of Mission Indians,

480 U.S. 202 (1987). Yet, under the

current statutory scheme, EPA generally

is precluded from enforcing the federal

Criteria as well. Furthermore, Congress

has not yet created an explicit role for

tribes to implement the RCRA Subtitle

D program, as it has done under most

other major environmental statutes

amended since 1986 (Safe Drinking

Water Act; Comprehensive

Environmental Response, Compensation

and Liability Act; Clean Water Act;

Clean Air Act).

To have its permit program deemed

adequate by EPA, a tribe must have

adequate authority over the regulated

activities. Indian reservations may
21192 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices

1 .One commenter argued that EPA has misread

the Chevron test to allow EPA to fill a statutory gap

when Congress has adopted a provision but failed

to state its intent in doing so. See 59 FR 24422,

24423 (May 11, 1994). According to this comment,

Chevron applies only when Congress has failed to

adopt a specific provision. EPA notes that the exact

language is whether ‘‘Congress has not directly

addressed the precise question at issue.’’ 467 U.S.

at 843. This may occur either where Congress has

failed to adopt a specific provision or where the

provision adopted is not clear as to the specific

issue. In the situation of Indian tribes and RCRA

Subtitle D, both problems occur, as discussed

below.

include lands owned in fee by nonIndians. The extent of tribal authority to

regulate activities by non-Indians on

such land has been the subject of

considerable recent discussion. For

further explanation of this issue, see

EPA’s tentative determination of the

adequacy of the Campo Band’s solid

waste program, 59 FR 24422, 24425–

24427 (May 11, 1994). As explained in

the tentative determination, all land

within the Campo Reservation is tribal

trust land; there is no fee land owned by

non-Indians on the Campo Reservation.

As further explained in the tentative

determination, the Campo Band has

established that it has adequate

jurisdiction over the Campo Reservation

based on general principles of tribal

sovereignty, the Campo Band’s status as

a ‘‘federally recognized Indian Tribe’’,

the Tribal Constitution, a map and

narrative description which established

the boundaries of the Reservation, and

Tribal codes and regulations.

By today’s action, EPA is continuing

to follow its policy of approving state/

tribal permit programs prior to the

promulgation of STIR. As explained in

the tentative determination, as well as

in previous state program approvals,

EPA interprets the requirements for

states or tribes to develop ‘‘adequate’’

programs for permits or other forms of

prior approval to impose several

minimum requirements. First, each

state/tribe must have enforceable

standards for new and existing MSWLFs

that are technically comparable to EPA’s

revised Federal Criteria. Next, the state/

tribe must have the authority to issue a

permit or other notice of prior approval

to all new and existing MSWLFs in its

jurisdiction. The state/tribe must also

provide for public participation in

permit issuance and enforcement as

required in section 7004(b)(1) of RCRA.

Finally, EPA believes that the state/tribe

must show that it has sufficient

compliance monitoring and

enforcement authorities to take specific

action against any owner or operator

that fails to comply with an approved

program.

EPA further requests tribes to provide

a statement of legal authority from the

tribal Attorney General or its equivalent

demonstrating that the tribe has

adequate jurisdiction to regulate

MSWLFs on the reservation. In

addition, EPA requests tribes seeking

program approval to demonstrate that

they: (1) Are federally recognized; (2)

have a government exercising

substantial duties and powers; and (3)

are capable of administering a permit

program. If the tribe has already

demonstrated to EPA that it meets the

first two of these criteria in the context

of obtaining a grant or the approval to

operate another EPA program, it need

not do so again. EPA also requests tribes

to provide an explanation of the

jurisdiction and responsibilities of all

tribal program implementing agencies

(including any state agency acting

pursuant to an agreement with the tribe)

and to designate a lead agency to

facilitate communications between EPA

and the tribe. If a tribe has already

provided information and/or a legal

statement on the tribe’s jurisdiction and

capability under another EPA program,

EPA requests the tribe to provide only

those additional materials necessary to

support its application for permit

program approval. These requests

incorporate the criteria used in other

environmental statutes to assess

whether tribes may receive grants or

program approval.

II. Campo Band of Mission Indians

On February 15, 1994, the Campo

Band submitted an application for

adequacy determination. On May 11,

1994, EPA published a tentative

determination of adequacy for the

Campo Band’s program. Further

background on the tentative

determination of adequacy appears at 59

FR 24422 (May 11, 1994).

Along with the tentative

determination, EPA announced the

availability of the application for public

comment and the date of a public

hearing on the application. On June 30,

1994, at 7 p.m. EPA held a public

hearing. Numerous comments were

made at the hearing. EPA also received

numerous written comments during the

public comment period, which EPA

extended until August 1, 1994. 59 FR

34812 (July 7, 1994).

III. Responses to Comments

The following are EPA’s responses to

the written and oral comments received

during the public comment period and

at the public hearing.

A. EPA’s Authority to Approve Tribal

Programs

Several commenters asserted that EPA

does not have the authority to approve

tribal solid waste programs under

RCRA. These comments raised a

number of legal and policy issues which

are discussed below.

1. Summary of the Agency’s Position

The Campo Band applied for a

determination of adequacy under

Subtitle D of RCRA, as amended (42

U.S.C. 6941–6949a). Section

4005(c)(1)(B) of RCRA requires states to

develop and implement permit

programs to ensure that MSWLFs which

may receive hazardous household waste

or conditionally exempt small quantity

generator waste will comply with the

revised Federal Criteria for MSWLFs, 40

CFR part 258. Section 4005(c)(1)(C)

requires EPA to determine whether

states have adequate ‘‘permit’’ programs.

EPA believes that RCRA allows tribes

to seek an adequacy determination for

purposes of sections 4005 and 4010 in

the same manner as the states.

EPA’s interpretation of RCRA is

governed by the principles of Chevron,

supra. Where Congress has not spoken

directly to the precise question at issue

or otherwise explicitly stated its intent

in the statute or in legislative history,

the administering Agency’s

interpretation of the statute is entitled to

deference if it is based on a permissible

construction of the statute. Chevron, 467

U.S. at 843. In step one of the Chevron

test, a court looks first to whether

Congress has specifically addressed the

relevant issue.1 If not, a court proceeds

to step two to decide whether the

interpretation offered by the

administering agency is reasonable in

light of the goals and purposes of the

statute. See, e.g., American Mining

Congress v. EPA, 965 F.2d 759 (9th Cir.

1992).

The Supreme Court stated in Chevron

that the principle of deference to

administrative interpretations of a

statute ‘‘has been consistently followed

by this Court whenever a decision as to

the meaning or reach of a statute has

involved reconciling conflicting

policies, and a full understanding of the

force of the statutory policy in the given

situation has depended upon more than

ordinary knowledge respecting the

matters subjected to agency

regulations.’’ 467 U.S. at 844. In

interpreting the meaning and reach of

Subtitle D of RCRA, the Agency has

undertaken to reconcile RCRA with

broad federal mandates, analogous

environmental statutes, EPA’s

longstanding Indian Policy and relevant

principles of federal Indian law.

EPA’s Indian Policy, formally adopted

in 1984 and reaffirmed by each EPA

Administrator since, recognizes tribes as

the primary sovereign entities for
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices 21193

regulating the reservation environment

and commits the Agency to working

with tribes on a ‘‘government-togovernment’’ basis to effectuate that

recognition. A major goal of EPA’s

Indian Policy is to eliminate all

statutory and regulatory barriers to tribal

assumption of federal environmental

programs. Providing tribes with the

opportunity to implement permit

programs represents another facet of the

Agency’s continuing commitment to the

implementation of this long-standing

policy.

In the case of other environmental

statutes which initially did not have

explicit provisions concerning treatment

of Indian tribes in the same manner as

states, such as the Clean Water Act,

EPA, in accord with its Indian Policy,

has worked to ensure that Congress

revises them at the earliest opportunity

to define explicitly the role for tribes

under these programs. Congress added

the provisions of the Clean Water Act

that specifically allow tribes to be

treated in the same manner as states in

1987. Clean Water Act section 518, 33

U.S.C. 1377.

However, 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.

EPA has 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 also

filled a statutory gap in the Clean Air

Act even before development of its

Indian Policy. In 1974, EPA authorized

Indian tribes to redesignate the level of

air quality applicable to Indian country

under the Prevention of Significant

Deterioration (PSD) program in the same

manner that states could redesignate for

other lands. This decision was upheld

in Nance v. EPA, 645 F.2d 701 (9th Cir.

1981). EPA believes the current

situation to be analogous to these

situations.

One commenter asserted that Nance

was the only authority cited by EPA in

support of the Agency’s position that it

has authority to approve tribal

programs. This commenter listed several

facts distinguishing the circumstances

in the Nance case from the present

determination. However, as explained

more fully throughout these responses

to comments, Nance is not EPA’s sole

support for today’s action. EPA’s

interpretation is based on a number of

authorities, including several cases—

Chevron, supra, Cabazon, supra, State

of Washington, Department of Ecology

v. U.S. EPA, 752 F.2d 1465 (9th Cir.

1985) (discussed below), and others— as

well as EPA’s Indian Policy.

Furthermore, EPA reiterates the fact that

the Nance court held that under a

federal statute silent as to jurisdiction in

Indian country, EPA correctly allowed

the Tribe, rather than the State, to

‘‘exercise control...over the entrance of

pollutants onto the reservation’’. That is

precisely what EPA’s action today will

do.

2. Applicability of Chevron

EPA received several general

comments which suggest that the

Chevron test does not apply to the

interpretation of RCRA at issue here.

The Agency disagrees with these

comments.

Several facts create a gap in the

implementation of RCRA. First,

Congress did not directly speak to the

issue of how a MSWLF regulatory

program should be implemented in

Indian country. In Washington, the

Ninth Circuit upheld EPA’s decision to

exclude Indian country from the

approved State hazardous waste

program, stating that ‘‘RCRA does not

directly address the problem of how to

implement a hazardous waste

management program on Indian

reservations.’’ 752 F.2d at 1469. Second,

under the current statutory scheme as

implemented, EPA is generally

precluded from enforcing federal

requirements on MSWLFs. Section

4005(c) of RCRA only allows EPA to

enforce the 40 CFR part 258 Criteria

after a finding of inadequacy of the state

permit program, indicating Congress’

preference for non-federal oversight of

MSWLFs. Third, it is a well-settled

principle of federal Indian law that

states are precluded from exercising

civil regulatory authority in Indian

country unless Congress has expressly

authorized them to do so. Cabazon,

supra; Santa Rosa Band of Indians v.

Kings County, 532 F.2d 655 (9th Cir.

1975), cert. denied 97 S.Ct. 731 (1977);

Washington, 752 F.2d at 1469–1470.

These facts leave open the question of

how MSWLFs will be regulated in

Indian country.

A gap in the administrative scheme of

a statute indicates that Congress has

delegated implicitly to the

administrative Agency the authority to

interpret the statute in a way that fills

the gap. Washington, 752 F.2d at 1465.

This interpretation is to be upheld if it

is based on a permissible construction

of the statute and reasonably promotes

the goals and purposes of the statute.

Chevron, 467 U.S. at 843. The Agency’s

determination that RCRA Subtitle D

allows Indian tribes to develop

permitting programs to ensure that

MSWLFs comply with the Federal

Criteria under 40 CFR part 258 is not

only a permissible interpretation of

RCRA, but is the most reasonable

interpretation of RCRA given the strong

legal and policy considerations in favor

of promoting tribal sovereignty, and

Congress’ preference for non-federal

oversight of MSWLFs.

3. Existence of a ‘‘Gap’’ in MSWLF

Regulation

EPA also received comments that

Chevron should not apply because there

is no gap in the regulatory program for

EPA to fill. According to these

comments, the case of Coalition for

Clean Air v. EPA, 971 F.2d 219 (9th Cir.

1992) should govern this issue.

Coalition involved interpreting a

provision of the Clean Air Act. Under

the Clean Air Act, states are to submit

proposals for State Implementation

Plans (SIPs) allowing for attainment of

National Ambient Air Quality Standards

(NAAQS) by the statutory deadline. If

EPA disapproves the state’s proposed

SIP, EPA must establish a Federal

Implementation Plan (FIP) to take the

place of the SIP. As noted in Coalition,

EPA had disapproved California’s

proposed SIP for the South Coast and

was in the process of finalizing a FIP for

the South Coast when Congress passed

the Clean Air Act Amendments of 1990.

971 F.2d at 222–223. The Amendments

changed the criteria and timetables for

NAAQS attainment. EPA argued that the

changes relieved EPA of the obligation

to promulgate a FIP and made it

incumbent upon California to try again

and submit a new SIP proposal. Id.

In Coalition, the Ninth Circuit

declined to defer to EPA’s interpretation

for three reasons. First, the court found

that the plain language of the Clean Air

Act expressed Congress’ intent to

require EPA to promulgate a FIP. The

court also found that legislative history

did not support EPA’s interpretation.

Finally, the court held that EPA’s

interpretation was not entitled to

deference because EPA had previously

argued the opposite to Congress—that

unless the statute were amended, EPA

would be obligated to promulgate FIPs.

The court pointed out that the change in

EPA’s interpretation did not reflect

accumulated experience or respond to

changing circumstances, nor was the

change justified with reasoned analysis.

Rather, the court found that EPA was

merely asking the court to do what

Congress would not.

The factors that lead the Ninth Circuit

to reject EPA’s interpretation of the

Clean Air Act in Coalition are not

present here. As discussed in more

detail below, the plain language of

RCRA does not express Congress’ intent
21194 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices

with respect to regulation of solid waste

in Indian country. As discussed below,

the legislative history supports EPA’s

position that Congress did not intend to

abrogate tribal sovereignty and give

states jurisdiction over solid waste

management in Indian country. Finally,

EPA’s interpretation is consistent with

the Agency’s long-standing Indian

Policy and previous statements about

the regulation of solid waste.

Finally, the commenter argued that

Chevron deference is less appropriate

when an Agency adopts a statutory

interpretation that is inconsistent with

past policy and the new interpretation

is not triggered by a change in the law

or a problem arising from the previous

interpretation, or accompanied by a

reasoned analysis of the need for a

change. The comment cites the

preamble to EPA’s 1979 guidelines for

development and implementation of

state solid waste management plans,

which provides that ‘‘states with Indian

Lands should therefore address solid

waste management on these lands in

accord with treaties and State policy.’’

44 FR 45078–79 (July 31, 1979). The

comment also cites the regulation itself

which provides that ‘‘the State plan

shall provide for coordination, where

practicable, with solid waste

management plans in neighboring States

and with plans for Indian Reservations

in the State.’’ 40 CFR 256.50(m) (1979).

EPA disagrees that these provisions

render deference to the Agency’s

interpretation of RCRA less appropriate.

EPA has not changed its position. The

provisions cited do not order states to

regulate Indian country, but instead

recognize that states are generally

precluded from exercising regulatory

authority over Indian country, and

support EPA’s long-standing policy that

tribes are the appropriate non federal

sovereign to regulate the environment in

Indian country. The cited provisions

suggest that EPA recognized that solid

waste management plans in Indian

country are separate from the plans in

effect for the surrounding state, just as

are plans in other states. EPA explained

in the preamble that it added

§ 256.50(m) ‘‘to encourage coordination

with tribal solid waste management

programs.’’ 44 FR 45079 (July 31, 1979).

Under the citizen suit provisions of

RCRA citizens can enforce the 40 CFR

part 258 regulations. According to some

of the comments, this means there

would be no gap in enforcement of the

MSWLF requirements in Indian

country. While EPA acknowledges that

the requirements of 40 CFR part 258

would be in effect in Indian country

even if tribes could not obtain approval

of their MSWLF permit programs, this

would not achieve the same

programmatic results. The ability to file

a citizen suit under section 7002 of

RCRA when a MSWLF fails to operate

properly is not comparable to having a

primary and complete system in place

for solid waste management. Moreover,

citizens have the right to sue regardless

of the status of a state or tribal program.

The existence of citizen suit

enforcement of the Federal criteria is

therefore irrelevant to the issue of how

to fill the gap that exists in the

permitting of MSWLFs in Indian

country. Congress has not provided a

mechanism that would be equivalent to

recognizing tribal authority directly.

One commenter asserted that, through

the citizen suit provision (which would

subject any owner or operator of an

MSWLF—including tribes and nonIndian landfill owners or operators in

Indian country—to enforcement)

Congress abrogated tribal sovereignty.

The commenter implies that Congress

intended for states to regulate solid

waste management in Indian country.

EPA disagrees. The fact that tribes or

non-Indian operators in Indian country

are subject to RCRA citizen suits does

not imply Congressional intent to

deprive tribes of their authority to

regulate the environment within their

jurisdiction. The same citizen suit

provision of RCRA also subjects states

and the federal government to citizen

suits; the commenter’s argument would

imply Congressional intent to deprive

states and the federal government of

their authority to regulate as well. The

purpose of the citizen suit provision is

to provide a back-up system when the

authorized government regulatory

agency fails to enforce the relevant

environmental standards.

One commenter also argued that EPA

could instead fill the gap in permitting

authority by promulgating reservationspecific MSWLF standards for

interested tribes in place of the

nationwide 40 CFR part 258

requirements. EPA acknowledges this

may be a potential alternative. But,

consistent with EPA’s Indian policy and

its emphasis on tribal self-government,

the Agency believes that tribes should

be given the opportunity to operate the

program directly where the statute

allows for such authority. The comment

merely offers an alternative method of

filling the gap, implicitly recognizing

that a gap exists to be filled under

Chevron.

One commenter argued that EPA may

not fill the statutory gap in the treatment

of Indian tribes under RCRA unless and

until it attempts to remove existing

statutory and regulatory ‘‘barriers’’ to

treating tribes in the same manner as

states. EPA disagrees that it must take

other actions before adopting today’s

interpretation. Congress has not

amended RCRA since 1984. EPA has

recommended for several years that an

Indian tribes provision be added to the

statute, and draft provisions have

appeared in bills introduced in the

101st and 102nd Congresses. A

comprehensive RCRA reauthorization

bill was not introduced in the 103rd

Congress. So EPA has endeavored to

bring this issue before Congress, but

Congress has not amended the statute in

any form. Nonetheless, EPA believes

that no statutory or regulatory barriers

exist that would prevent treatment of

tribes in the same manner as states

under RCRA Subtitle D. Chevron allows

EPA to specify a role under RCRA

Subtitle D for tribes to implement

MSWLF permit programs in Indian

country.

4. RCRA Definition of ‘‘Municipality’’

One commenter argued that states

have authority over Indian tribes for the

purposes of RCRA because tribes are

included in the definition of

‘‘municipality’’ rather than in the

definition of ‘‘state’’. This commenter

asserted that the Agency goes beyond

‘‘filling gaps’’ in its interpretation of

RCRA, and ‘‘creates a program from

whole cloth’’ that ‘‘directly conflicts

with Congress’ law.’’ According to the

comment, Congress has directly

addressed the precise issue of how tribal

solid waste programs are to interrelate

with state and federal programs by

including Indian tribes in the definition

of ‘‘municipality’’, rather than ‘‘state’’.

‘‘State’’ is defined to mean:

(A)ny of the several States, the District of

Columbia, the Commonwealth of Puerto

Rico, the Virgin Islands, Guam, American

Samoa, and the Commonwealth of the

Northern Mariana Islands.

RCRA section 1004(31).

The only mention of tribes in the

statute is in section 1004(13), a part of

the ‘‘definitions’’ section of 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 an Indian tribe or authorized

tribal organization or Alaska Native village or

organization(.)

RCRA does not explicitly define a role

for tribes under sections 4005 and 4010

and therefore reflects an ambiguity in

congressional intent. The Agency

believes that the commenter has

misconstrued the significance of the

definitions. ‘‘Municipalities’’ are
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices 21195

mentioned in sections 4003(c)(1)(C),

4008(a)(2), 4008(a)(3)(C), 4008(g)(1) and

4009(a) of RCRA, all of which reference

the availability of federal funds and

technical assistance for solid waste

planning and management activities by

municipalities. It is therefore the

Agency’s interpretation of these

provisions that Congress intended to

provide that tribes could receive federal

funding and assistance for solid waste

planning and management activities

when available in the same manner as

municipal governments, but that

Congress did not otherwise intend to

limit the scope of tribal regulatory

authority over solid waste management

in Indian country. In other words,

absent an indication from Congress to

the contrary, EPA believes that

inclusion of Indian tribes in the

definition of ‘‘municipality’’ was merely

a definitional expedient used to avoid

having to include the phrase ‘‘or an

Indian tribe or authorized tribal

organization or Alaska Native village or

organization’’ wherever the term

‘‘municipality’’ appeared, not to change

the sovereign status of tribes for RCRA

purposes.

Another comment cites Sutherland on

Statutory Construction § 46.01 (5th ed.

1992) for the principle that ‘‘unless the

defendants can demonstrate that the

natural and customary import of the

statute’s language is either repugnant to

the general purview of the act or for

some other compelling reason should be

disregarded, the court must give effect

to the statute’s plain meaning.’’ First, as

discussed above, EPA believes that the

language of RCRA contains no ‘‘plain

meaning’’ with respect to jurisdiction

over solid waste management in Indian

country. Second, EPA believes that

federal Indian law and EPA’s Indian

Policy provide a sufficiently

‘‘compelling reason’’ to overcome the

inference that states have jurisdiction

over solid waste management in Indian

country that the commenter would draw

from the statutory definition of ‘‘State’’

and ‘‘municipality’’.

Many references are made to ‘‘local

governments’’ or ‘‘local authorities’’ in

RCRA. See, e.g., sections 4006(a);

4006(b); 4006(c)(2). One commenter

argued that the term ‘‘municipality’’

should be substituted for these

references, and that tribes should be

treated the same as municipalities for all

purposes of RCRA Subtitle D. This

would result in Indian tribes being

brought under state control for the

purposes of section 4006, which

specifies procedures for the

development and implementation of

state solid waste plans. EPA believes,

however, that these terms were not

intended to include Indian tribes. The

term ‘‘municipality’’ could have easily

been used instead of these references.

By contrast, the term ‘‘municipality,’’

which by definition includes Indian

tribes, is used with reference to the

availability of federal funds and

technical assistance for solid waste

planning and management activities.

Thus, EPA believes that Congress did

not intend to refer to Indian tribes and

local governments interchangeably nor

to affect the sovereign status of tribes in

such an indirect way in RCRA.

It is a reasonable interpretation of

RCRA that the use of the explicitly

defined term ‘‘municipality’’ was

limited to those areas that Congress

wanted to apply to both local

governments and Indian tribes, while

the terms ‘‘local governments’’ or ‘‘local

authorities’’ were used for those

provisions that were to apply to local

governments and not to Indian tribes.

As discussed above, however, it is a

reasonable interpretation of RCRA that

Congress did not intend, simply by

defining ‘‘municipality’’ to include

tribes, to abrogate Indian sovereignty

and subject all solid waste management

activities in Indian country to state

regulatory authority.

An examination of the legislative

history of RCRA further supports EPA’s

position that Congress did not directly

address the management of solid waste

in Indian country. The first Solid Waste

Disposal Act did not define

‘‘municipality.’’ Solid Waste Disposal

Act (SWDA), Pub. L. No. 89–272, Title

III Sec. 203, 79 Stat. 983, 990–991

(1965). The definition of municipality

was added by the Resource Recovery

Act of 1970, and included ‘‘Indian

tribe’’. Pub. L. No. 91–512, Title I Sec.

102, 84 Stat. 1227, 1228 (1970).

Congress then enacted the Resource

Conservation and Recovery Act of 1976,

which contains the definition of

‘‘municipality’’ currently in the statute,

adding ‘‘or authorized tribal

organization or Alaska Native village or

organization’’. Pub. L. No. 94–580, Title

II, Sec. 1004, 90 Stat. 2795, 2800 (1976).

There is no legislative history

explaining why Congress included

Indian tribes and other Indian

organizations in the definition of

‘‘municipality’’. See H.R. Rep. No. 1155,

91st Cong., 2d Sess., reprinted in 1970

U.S.C.C.A.N. 4552; S. Rep. No. 1034,

91st Cong., 2d Sess. 27, (1970); H.R.

Conf. Rep. No. 1579, 91st Cong., 2d

Sess., reprinted in 1970 U.S.C.C.A.N.

4559; H.R. Rep. No. 1491, 94th Cong.,

2d Sess., reprinted in 1976 U.S.C.C.A.N.

6238; S. Rep. No. 869, 94th Cong., 2d

Sess. 1 (1976); S. Rep. No. 988, 94th

Cong., 2d Sess. 1 (1976).

There is no further mention of the

definitions or of the role of tribes in the

legislative history of RCRA. There is

also no indication in the legislative

history that Congress ever attempted to

conduct an examination of the social,

legal and political ramifications that the

submission of tribes to state regulatory

authority in the area of hazardous waste

management would occasion. The fact

that Congress did not conduct such an

examination or otherwise directly

address the precise issue in the

legislative history supports EPA’s

contention that Congress did not in fact

have a specific intent with regard to

implementation of RCRA in Indian

country.

As mentioned above, principles of

federal Indian law also support the

Agency’s interpretation of RCRA under

Chevron. Federal Indian law mandates

that a statute be construed liberally in

favor of Indians. See Montana v.

Blackfeet Tribe of Indians, 471 U.S. 759,

766–767 (1985), and Washington, 752

F.2d at 1469–1470. Liberally construed

in favor of the states, the inclusion of

Indian tribes in the definition of

‘‘municipality’’ might constitute an

implicit argument for the limitation of

Indian sovereignty, but the Agency is

obligated to read RCRA in favor of tribal

authority and to uphold the principles

of tribal sovereignty unless

Congressional directives to the contrary

are clearly expressed.

The commenter seeks to read into an

ambiguous statute Congressional intent

to deny tribes a significant regulatory

authority. This is inconsistent with

federal Indian law, as discussed above.

EPA cannot assume that Congress, by

including Indian tribes in the definition

of ‘‘municipality’’ in RCRA section

1004(13), intended to submit the

sovereign authority of the various

Indian tribes throughout the nation to

that of the various states in which they

reside for the purposes of RCRA.

Neither the statutory text nor the

legislative history of RCRA support this

reading of the statute.

One commenter supported the

conclusion that, as a general rule, Indian

tribes that are sovereign nations are not

subject to state solid waste management

requirements. This commenter stated

that courts will permit state

requirements to extend to sovereign

tribal lands only if the state interests

clearly outweigh tribal and federal

interests, and that the U.S. Supreme

Court has rarely found such interests to

exist. This is consistent with EPA’s

analysis of federal Indian law, discussed

above.

Another commenter argued that EPA’s

proposal to treat Indian tribes in the
21196 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices

2 .The commenter also asserted that EPA used the

terms ‘‘local government’’ and ‘‘municipality’’

interchangeably in the proposed and final landfill

criteria rule, and that EPA implicitly asserted that

‘‘Indian tribes’’ should be considered local

governments for MSWLF purposes. A close

examination of the language makes clear that EPA

thought that Indian tribes were similar to local

governments, but quite separate from them. For

instance, one section of the preamble to the final

rule is titled ‘‘Concerns Regarding Local

Government and Indian Tribe Impacts’’. 56 FR at

50980; the section discussing the financial

assurance issue discusses Indian tribes separately

from local governments. Id. at 51107.

same manner as states for purposes of

section 4005 is inconsistent with its

decision not to waive MSWLF financial

assurance requirements for Indian tribes

that operate landfills, as EPA had

waived for state-operated landfills. (See

56 FR at 51107–08 (Oct. 9, 1991); 40

CFR 258.70(a)). In this commenter’s

view, EPA’s decision suggests that EPA

considers tribes to be equivalent to

municipalities for RCRA Subtitle D

purposes. EPA disagrees. As is

explained in detail in the preamble to

the Federal Criteria rule, EPA proposed,

but ultimately decided against,

exempting Indian tribes from the

financial assurance requirements

imposed on local governments. EPA

decided that Indian tribes, ‘‘for reasons

similar to those’’ upon which the

Agency based its decision not to exempt

municipalities from the financial

assurance requirements, ‘‘do not have

the requisite financial strength to ensure

funding of their closure, post-closure

and corrective action obligations’’. 56

FR at 51108. EPA did not say anything

to suggest a position that Indian tribes

were subject to state regulatory control

as are local governments or

municipalities. Nor did EPA suggest

that tribes lack the sovereign regulatory

authority over MSWLF activities in

Indian country necessary to administer

an EPA-approved landfill permit

program. Therefore, there is no

inconsistency between the Agency’s

position in that rule and in today’s

notice.2

5. RCRA Definition of ‘‘State’’

One commenter asserted that

Congress could easily have included

Indian tribes in the definition of ‘‘state,’’

and that the fact that Congress did not

do so indicates that Congress did not

want to give tribes a sovereign role for

RCRA purposes. While the scant

legislative history allows for little

comment on Congress’ motives in not

explicitly allowing Indian tribes to be

treated in the same manner as states,

EPA believes that, had Congress clearly

intended to preclude Indian tribes from

operating in the same manner as states

for purposes of RCRA Subtitle D, it

would have made that clear in the

language or legislative history of the

1984 Amendments. This commenter

also noted that the regulations in 40

CFR part 258 refer to actions taken by

the ‘‘State Director’’, and that no

officials of the Campo Band or the

Campo Environmental Protection

Agency (CEPA) fit EPA’s definition of

that term. However, EPA believes it has

the authority to interpret its own

regulations in a manner consistent with

the statutory purpose for which those

regulations were adopted. As discussed

above, Chevron gives EPA the authority

to interpret RCRA to allow for treatment

of tribes in the same manner as states for

purposes of program approval. EPA’s

use of the term ‘‘State Director’’ in the

landfill regulations may be read to

include tribal officials serving the

function of a State Director in order to

effectuate EPA’s permissible

interpretation of RCRA.

6. The Relevance of Washington Dept. of

Ecology v. EPA

Several commenters challenged EPA’s

reference to other environmental

statutes to support its argument

concerning treatment of Indian tribes

under RCRA. EPA’s reference to other

environmental statutes to interpret state

and tribal authority in the

implementation of solid waste

permitting programs was implicitly

approved by the Ninth Circuit in

Washington:

Implementation of hazardous waste

management programs on Indian lands raises

questions of Indian policy as well as

environmental policy. It is appropriate for us

to defer to EPA’s expertise and experience in

reconciling these policies, gained through

administration of similar environmental

statutes on Indian lands.

One commenter stated that EPA seeks

to create a ‘‘vacuum’’ in the

implementation and enforcement of

Subtitle D of RCRA by asserting that the

states are generally precluded from

regulating MSWLFs on tribal lands. This

commenter stated that Washington

supports the commenter’s assertion that

statutes are to be read in a manner that

does not find a vacuum, and therefore

EPA’s interpretation of RCRA’s

administrative scheme is contrary to

Washington. EPA disagrees that its

position is inconsistent with

Washington. The Ninth Circuit in

Washington in fact upheld EPA’s denial

of the State’s application to regulate

hazardous waste in Indian country,

because under federal Indian law states

are generally precluded from exercising

civil regulatory authority over Indian

country. EPA denied the portion of the

State of Washington’s application that

sought to regulate hazardous waste in

Indian country because the State had

failed to demonstrate adequate

jurisdiction.

This commenter further argued that

the holding in Washington that states

lack authority to regulate waste

activities on Indian lands should be

limited to Subtitle C of RCRA because

‘‘(w)here hazardous waste is concerned,

the state plays no role until the * * *

EPA doles it out * * * Where solid

waste is concerned, the EPA plays no

role unless the state fails to give that

aspect of the program proper attention.’’

However, this argument does not reach

the question of state versus tribal

authority. Even if EPA does not issue

permits for MSWLFs in Indian country

as it does for certain Subtitle C facilities,

this does not mean that Indian tribes are

not allowed to implement MSWLF

permitting programs in the same

manner as the states. Approving tribal

MSWLF permitting programs would

uphold EPA’s general policy of

encouraging non-federal

implementation and enforcement of the

Federal Criteria as does states’ proper

implementation of MSWLF permitting

programs on land within the state’s

jurisdiction.

Further, the argument that

Washington should be limited to

Subtitle C of RCRA ignores the fact that

the definitions of section 1004(13) and

the corresponding legislative history, as

discussed above, are applicable to all of

RCRA. The legislative history was

insufficient to express Congressional

intent to extend state jurisdiction over

Indian country with respect to Subtitle

C. It is also insufficient to extend state

jurisdiction over Indian country with

respect to Subtitle D of RCRA.

7. EPA May Properly Allow Tribes to

Submit Applications for Approval of

Their MSWLF Permit Programs at the

Tribes’ Discretion

One comment criticizes EPA for

allowing Indian tribes to seek approval

of their MSWLF permit programs in the

same manner as States, but not requiring

Indian tribes to submit a program as

States are required under section

4005(c). As EPA explained in the

proposed approval, Congress did not

explicitly specify a role for tribal permit

programs under Subtitle D of RCRA.

EPA is therefore unwilling to ascribe to

Congress the specific intent to require

tribes to submit landfill permit

programs as Congress clearly intended

for States. Furthermore, even if EPA

were to mandate that tribes submit such

programs, the only effects of a failure to

submit are: (1) EPA may determine there

to be no adequate program in place and
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices 21197

thus that it has authority to enforce the

40 CFR part 258 Criteria directly (RCRA

section 4005(c)(2)), and (2) the tribe

would not be eligible for grant funds to

operate its landfill program (RCRA

section 4007). If a State (or tribe) elects

not to submit a program, it may lose out

on federal assistance, but Congress

specified no other penalty. In addition,

unlike the situation in most States, on

some reservations, all solid waste may

be disposed off-reservation. Thus, EPA

sees no particular benefit to imposing an

explicit requirement on tribes to submit

a program.

Another comment argued that EPA

may not require States to demonstrate

their jurisdiction over Indian lands

when seeking approval of a landfill

permit program, since States ‘‘must have

jurisdiction in order to meet the

statutory mandate.’’ This statement

merely begs the question of whether

states do have such jurisdiction.

Nonetheless, EPA believes this issue is

more properly addressed in the context

of an individual State application for

program approval.

8. EPA May Establish Self-implementing

Landfill Criteria Where an Approved

Adequate State or Tribal Program is Not

in Place

The State of Alaska submitted

comments that the Agency’s tentative

determination to approve the Campo

Band permit program is invalid because

EPA does not have the authority under

RCRA Subtitle D to promulgate selfimplementing criteria for the disposal of

solid waste. EPA’s regulations in 40 CFR

part 258 are ‘‘self-implementing’’ in that

they apply directly to owners and

operators of MSWLFs, and need not be

imposed through a permit or other

agency action. Alaska argued that EPA

can only establish guidelines for the

disposal of solid waste under RCRA

section 1008(a) and that RCRA section

4004(a) only provides the Agency with

the authority to provide definitions for

what constitutes ‘‘open dumping’’ of

solid waste. Alaska also argued that the

Hazardous and Solid Waste

Amendments of 1984, including RCRA

sections 4005(c) and 4010(c), did not

broaden EPA’s authority with regard to

the regulation of solid waste or shift the

control of the disposal of such waste

from the States to the Agency.

EPA first notes that this comment is

not timely. Two Alaska State agencies

(the Departments of Environmental

Conservation and Transportation and

Public Facilities) and the Alaska State

legislature submitted comments on the

proposed MSWLF Criteria, but none of

the comments challenged the Agency’s

authority to promulgate selfimplementing regulations under RCRA.

Contrary to Alaska’s assertion, EPA did

raise for public comment the issue of

how the Criteria would be implemented

in States that do not have approved

permit programs. 53 FR 33383 (Aug. 30,

1988). Many of the proposed standards

were self-implementing in that they

could be implemented directly by an

owner or operator without State

oversight. 53 FR 33382 (Aug. 30, 1988).

Because it did not comment on the

‘‘self-implementing’’ issue or file a

petition for review of the MSWLF

Criteria, Alaska may not now challenge

EPA’s authority to promulgate selfimplementing regulations under RCRA

Subtitle D. See 42 U.S.C. 6976(a)(1);

Sierra Club v. EPA, 992 F.2d 337, 342

n. 5 (D.C. Cir. 1993).

EPA also disagrees with Alaska’s

substantive comment that the Agency

does not have the authority to

promulgate self-implementing criteria

under RCRA Subtitle D. While EPA

agrees with Alaska that the

implementation and administration of

solid waste disposal is mainly a statelead function, RCRA Subtitle D provides

the Agency with the statutory authority

to promulgate criteria for such disposal.

RCRA section 4004(a) authorizes EPA

to promulgate regulations containing

criteria that distinguish between those

facilities classified as sanitary landfills

and those which are open dumps. These

regulations, found in 40 CFR part 257,

are more than ‘‘definitional’’ as

suggested by Alaska. They establish

criteria, enforceable under RCRA

section 7002(a)(1), to ensure that there

is ‘‘no reasonable probability of adverse

effects on health or the environment’’

from disposal of solid waste. 42 U.S.C.

6944(a). In enacting the Hazardous and

Solid Waste Amendments of 1984,

Congress made it clear that the

prohibitions contained in the open

dumping criteria promulgated pursuant

to RCRA section 4004(a) were a ‘‘direct

Federal requirement, not dependent on

the approval of a state plan * * *’’ S.

Rep. No. 248, 98th Cong., 2d Sess., at 50

(1984).

In addition, RCRA section 4010(c)

requires EPA to ‘‘promulgate revisions’’

of the open dumping criteria for certain

solid waste disposal facilities ‘‘to

protect human health and the

environment,’’ and specifies certain

minimum elements to be included in

those criteria. 42 USC 6949a(c). By

using the word ‘‘promulgate,’’ which

Webster’s defines to mean ‘‘to put (a

law) into action or force,’’ (Webster’s

New Collegiate Dictionary, at 914

(1979)), EPA believes that Congress

intended the Criteria contained in 40

CFR part 258 to have the force and effect

of binding regulations. While states are

to play a central role in the

implementation of the Criteria by

adopting permit programs under RCRA

section 4005(c)(1)(B), Sierra Club v.

EPA, 992 F.2d 337, 339 (D.C. Cir. 1993),

such state programs must meet the

statutory standard of ensuring that each

facility receiving hazardous household

waste or conditionally exempt small

quantity generator hazardous waste will

comply with the Criteria promulgated

by EPA.

As fully explained by EPA at the time

it promulgated the Criteria under RCRA

section 4010(c), the Agency chose a selfimplementing approach out of a concern

that States may not have the resources

available to adopt adequate permit

programs within the eighteen month

time period provided by the statute

(RCRA section 4005(c)(1)(B)). 56 FR

50978, 50991–93 (Oct. 9, 1991). A

number of states had submitted

comments outlining this concern. Id. at

50992.

EPA was also concerned about the

appropriate implementation and

enforcement of the Criteria in those

states that did not adopt an adequate

permit program under RCRA section

4005(c)(1)(B). Id. at 50993. For example,

EPA had proposed that new MSWLFs

would need to be constructed in

accordance with a design goal (which

would have to fall within a risk-based

performance range) established by the

relevant state. 53 FR 33314, 33410 (Aug.

30, 1988). In response to a number of

comments from states that argued that

they did not have the resources to

establish such design goals or to review

design plans to determine whether they

met a certain risk range performance

standard, EPA decided to promulgate a

design requirement that both (1)

established a uniform design

requirement that could be implemented

by owners and operators in unapproved

states and (2) allowed approved states to

authorize an alternative design which

met a performance standard. 56 FR

51058–60 (Oct. 9, 1991). By establishing

self-implementing performance

standards for design and other

requirements contained in the MSWLF

Criteria, EPA could ensure that there

would be protective implementation of

the Criteria in states or in Indian

country without approved programs

where state or tribal oversight of a

landfill design would not be present. Id.

Contrary to Alaska’s comment, EPA

believes that adopting a selfimplementing approach in the Criteria

is within the statutory authority

provided by RCRA Subtitle D. Clearly,

by enacting RCRA section 4010(c),

Congress was expressing a concern
21198 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices

about the risks to human health and the

environment posed by solid waste

disposal facilities which receive

hazardous waste. H.R. Conf. Rept. 2867,

98th Cong., 2d Sess., at 117 (1984)

(‘‘environmental and health problems

caused by RCRA Subtitle D facilities are

becoming increasingly serious and

widespread’’). While Congress

mandated that the EPA revise the open

dumping criteria, Congress did not

specify the exact scope of the revised

Federal Criteria or the manner by which

they would be implemented in states

without approved programs. Thus, it

was left to EPA’s discretion to

implement section 4010(c) in a manner

that would effectuate the statutory goals

and policies reflected in the language of

RCRA, including the Hazardous and

Solid Waste Amendments (HSWA).

One comment asserted that EPA may

only determine the inadequacy of a state

program in the context of filing its own

enforcement action under section

4005(c)(2). The basis of this assertion is

unclear, because section 4005(c)(1)(C) is

clear that EPA is to make a

determination of the adequacy of each

state program, and that EPA may make

such a determination in the context of

approval or disapproval of a state solid

waste plan—not necessarily in the

context of an enforcement action.

Section 4005(c)(2)(A) separately gives

EPA the discretion to enforce the

Criteria where EPA has determined that

an adequate program is not in place.

The commenter’s reading would suggest

that the adequacy of state programs will

be determined only in enforcement

actions. This reading would make any

EPA determination under section

4005(c)(1)(C), and the section itself,

superfluous.

The commenter further asserted that

any finding of inadequacy can only be

met by EPA taking an enforcement

action against the owner or operator

under RCRA sections 3007 or 3008. The

comment implies that if EPA determines

that a state program is inadequate, the

Agency cannot grant solid waste

management jurisdiction to a tribe

within the state. However, EPA’s

authority to determine the adequacy of

a tribal solid waste program is not

predicated on determining that the state

regulatory program is inadequate. As

discussed above, EPA’s authority to

approve tribal programs is predicated on

established principles of federal Indian

law, the holding in Chevron, and EPA’s

Indian Policy.

It is clear that section 4005(c) of

RCRA required states to develop permit

programs and gave EPA the authority to

evaluate state programs. Tribes are

sovereign governments with civil

authority over Indian country that is

comparable to the civil regulatory

authority of states outside of Indian

country. Thus, EPA continues to believe

it is a reasonable interpretation of this

section and RCRA Subtitle D more

generally for tribes to have the

opportunity to apply for approval from

EPA to run their own programs.

9. EPA Has the Authority To Approve

Tribal MSWLF Programs on a Case-byCase Basis

EPA also received comments

suggesting that EPA’s notice announcing

its tentative determination to approve

the Campo Band’s application did not

comply with the requirements of the

Administrative Procedure Act (APA).

One commenter argued that EPA cannot

approve individual tribal programs until

it promulgates a rule which specifies the

criteria and procedures for approval.

This commenter noted that other

environmental statutes which provide

authority for EPA to treat tribes in the

same manner as states require EPA to

promulgate regulations to implement

the tribal program. EPA disagrees that it

must promulgate regulations as a

precondition of approving tribal

programs. As with state MSWLF permit

programs, EPA believes that Congress

has provided adequate authority to

approve tribal programs under section

4005(c) of RCRA based on the statutory

criteria contained therein. Congress did

not specifically require that EPA issue a

rule specifying criteria and procedures

for approval of state programs, and EPA

maintains inherent authority to make

such determinations on a case-by-case

basis.

The commenter also argued that a rule

is necessary before approving any tribal

program because otherwise there would

be no standards for assuring the

reasonableness of treating tribes in the

same manner as states for purposes of

RCRA Subtitle D, as there are under

other environmental statutes which

specify an explicit role for tribes.

Another commenter asserted that EPA

lacks standards for approval of tribal or

state programs, and that, if Congress

were to amend RCRA to allow for

treatment of tribes in the same manner

as states, it would likely require EPA to

promulgate regulations for such

treatment. EPA disagrees that standards

are lacking. RCRA section 5004(c)(1)(B)

requires states to adopt and implement

‘‘a permit program or other system of

prior approval and conditions to assure

that each solid waste management

facility will * * * comply’’ with the

Federal Criteria in 40 CFR part 258. 42

U.S.C. 6945(c)(1)(B). RCRA section

7004(b)(1) states that ‘‘public

participation in the development,

revision, implementation and

enforcement of any regulation * * * or

program shall be provided for,

encouraged, and assisted by the

Administrator and the States.’’ 42 U.S.C.

6974(b)(1). As EPA explained in the

tentative determination, the Agency

interprets this statutory requirement to

impose the following standards on state

and tribal programs: tribes and states

must (1) have enforceable standards for

new and existing MSWLFs that are

technically comparable to the Federal

Criteria in 40 CFR part 258; (2) have

authority to issue a permit or other

notice of prior approval to all new and

existing MSWLFs within their

jurisdiction; (3) provide for public

participation in permit issuance and

enforcement; and (4) show sufficient

compliance monitoring and

enforcement authorities to take specific

action against any owner or operator

that fails to comply with an approved

MSWLF program. EPA has determined

that the Campo Band’s solid waste

permitting program meets these

requirements. 59 FR 24422, 24423 (May

11, 1994).

In addition, as explained in the

tentative determination, EPA has

requested tribes to demonstrate that

they are federally recognized, have a

government exercising substantial

governmental duties and powers, have

the capability to operate a program, and

have adequate civil regulatory authority

to do so. These are the criteria Congress

incorporated into the Clean Air Act,

Clean Water Act, and Safe Drinking

Water Act provisions that allow EPA to

treat tribes in the same manner as states.

EPA has determined that the Campo

Band’s program meets these

requirements. 59 FR 24422, 24423 (May

11, 1994). In fact, on May 11, 1992, EPA

approved the Campo Band’s application

for treatment as a state under Clean

Water Act (CWA) section 518(e) for the

purposes of CWA section 106. On

September 28, 1993, EPA approved the

Campo Band’s application for treatment

as a state under Clean Water Act section

518(e) for the purposes of CWA section

319.

Alaska argued that EPA’s tentative

determination to approve the Campo

Band program constitutes a proposed

rule under the Administrative

Procedures Act (APA) since, in Alaska’s

opinion, the preamble establishes the

general standard that Alaska Native

Villages are eligible to submit MSWLF

permit programs for approval. Among

other things, Alaska criticizes as

misleading EPA’s placement of such a

substantive rule in the ‘‘Notices’’ section

of the Federal Register, rather than the
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices 21199

‘‘Proposed Rules’’ section. Alaska also

asserted that EPA has violated the

Freedom of Information Act (FOIA)

requirement to ‘‘separately state and

currently publish * * * substantive

rules’’ by ‘‘de facto’’ promulgation of the

STIR in the same notice in which the

Agency determines the adequacy of the

Campo Band’s program. EPA disagrees

with Alaska’s characterization of the

tentative determination. EPA

acknowledges that the preamble to the

tentative determination makes reference

to EPA’s policy that ‘‘Alaska Native

entities * * * may apply for permit

program approval.’’ 59 FR 24422, 24426

(May 11, 1994). It is clear from the

context of the discussion, however, that

EPA was not trying to propose a rule

with respect to Alaska Natives, but

merely was observing that RCRA does

not expressly preclude Alaska Native

Villages from applying for program

approval. EPA has not proposed to

approve any Native Village program

and, although the tentative

determination may have been

ambiguous on this point, the Agency

has not determined that any village

would necessarily satisfy the

requirements for program approval. The

determination whether any Alaska

Native Village will qualify to operate a

MSWLF permitting program will be

made when such application, if any, is

submitted. Thus, the statement in EPA’s

tentative determination does not give

rights that Alaska Natives did not

previously hold, nor does it purport to

divest the State of Alaska of any

authority it may have to regulate

MSWLFs in Native Villages. The

tentative determination and today’s

action are intended to affect only the

Campo Band. In addition, EPA does not

hereby purport to adopt the STIR;

discussions of tribal jurisdiction in both

the tentative determination and today’s

action are included for the purpose of

explaining EPA’s determination of the

adequacy of the Campo Band’s program.

If and when EPA proposes the STIR

and/or proposes to approve a Native

Village program, as discussed above,

Alaska may raise its jurisdictional and

other concerns at that time and EPA will

give them due consideration.

One commenter stated that Congress

never intended to have EPA delegate the

authority to regulate municipal solid

waste landfills to every or any Indian

tribe in the nation, because the burden

on EPA would be overwhelming. The

same commenter suggested that EPA

should retain authority over Indian

country. Alternatively, the commenter

suggested that EPA delegate this

authority to states. EPA notes that EPA

permitting and enforcement of solid

waste management in Indian country

could result in a far greater burden on

the Agency than determination of the

adequacy of tribal programs. More

importantly, under Subtitle D of RCRA,

EPA has no authority to enforce the

Federal Criteria, unless it determines

that the applicable program is

inadequate, in which case EPA would

have discretion to take enforcement

actions for violations of RCRA (RCRA

section 4005(c)(2)(A)). Therefore, EPA

cannot ‘‘delegate’’ authority to states or

tribes. EPA’s role, as prescribed by

Congress, is limited to determining

whether the solid waste programs

adopted by states or tribes are adequate

to assure compliance with the federal

regulations (RCRA section

4005(c)(1)(C).) Finally, as discussed

above, under federal law EPA does not

have the power to give states

jurisdiction over Indian country.

One commenter stated that the best

interest of the people and

environmental laws are met by

consistent yet flexible regulations

covering municipal solid waste

landfills. This commenter expressed

concern that allowing hundreds of tribes

to regulate solid waste will result in

inconsistency. As the comment itself

noted, flexibility as well as consistency

is important in protecting human health

and the environment. Congress required

EPA to set minimum standards for

landfills, and required states to adopt

and implement permit programs which

would assure compliance with the

federal standards. Both RCRA and the

federal regulations take into account the

history of local regulation of solid waste

and the need to have solid waste

requirements be flexible enough to

accommodate local needs. EPA will not

approve a state or tribal program unless

it is adequate to ensure that all MSWLFs

within the state’s or tribe’s jurisdiction

will comply with the Criteria in 40 CFR

part 258. Therefore, EPA believes that

approval of tribal solid waste programs

will not result in any inconsistency that

would violate the requirements of 40

CFR part 258. It is possible, however,

that owners or operators of landfills in

more than one jurisdiction may have to

meet different requirements in different

jurisdictions. This was the case prior to

the federal requirements, which merely

set new national minimum standards for

landfills.

One commenter questioned EPA’s

motives and its purpose in providing a

program adequacy ruling. RCRA itself

establishes EPA’s role. Section

4005(c)(1)(C) provides that ‘‘[t]he

Administrator shall determine whether

each state has developed an adequate

program’’. Congress mandated that EPA

determine the adequacy of state

programs. EPA’s motive and purpose in

providing a program adequacy

determination for tribal solid waste

programs are the same as for providing

such a determination for state programs:

to ensure that the appropriate

government entity is ensuring the

proper management of solid waste

within its jurisdiction. As discussed

above, EPA’s approval of tribal solid

waste programs is consistent with

federal Indian law and EPA’s Indian

Policy.

One commenter stated that non-tribal

regulation of the land on which a

proposed landfill would be situated is

critical because contaminated

groundwater could migrate off the

Reservation. In support of this position,

the commenter quoted from the Federal

Register notice in which EPA published

its tentative approval of the Campo

Band’s program. In the tentative

determination, EPA stated that where

groundwater can migrate, ‘‘it would be

practically very difficult to separate out

the effects of solid waste disposal on

non-Indian fee land within a reservation

from those on Tribal portions’’. 59 FR

24422, 24425–26 (May 11, 1994). The

quoted statement supports tribes’

assertions of jurisdiction to regulate

solid waste management on non-Indian

fee land within a reservation. As

discussed above, EPA does not have

authority to grant states jurisdiction

over Indian country; in fact, federal law

limits the jurisdiction of states over

Indian country. The Campo Reservation

is entirely tribal trust land.

One commenter stated that none of

the statutory sections cited by EPA in

the tentative determination provides

authority for EPA’s action of approving

the Campo Band’s program. The

comment questioned the appropriate

forum for judicial challenges to EPA’s

action. The statutory sections—RCRA

sections 2002, 4005 and 4010—

authorize promulgation of regulations

and provision of technical assistance

and provide for review and approval of

state programs. Although all three of

these statutory sections support EPA’s

action today, EPA has the authority to

approve tribal programs under RCRA

section 4005 using its discretion to fill

gaps pursuant to Chevron. The

appropriate forum for such judicial

challenges is ultimately a decision for a

court. However, EPA currently believes

that the appropriate forum may be the

U.S. Court of Appeals for the District of

Columbia Circuit, pursuant to RCRA

section 7006(a), 42 U.S.C. 6976(a).
21200 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices

B. Treating the Campo Band as a State

One commenter suggested that

‘‘soliciting a waste stream from several

hundred thousand non-tribal members

can hardly be viewed as selfgovernment * * *.’’. EPA agrees that

importation of waste does not equate to

self-government. However, the Campo

Band does not rely on the fact that it

will receive waste from off-Reservation

to establish that it is self-governing. The

Campo Band’s application amply

demonstrates that the tribe has a

government exercising substantial

governmental duties and powers.

Nothing in RCRA, the Federal Criteria,

or the draft STIR would preclude a state

or tribe from implementing a municipal

solid waste permitting program which

includes imported waste, as long as the

state or tribal program ensures that the

MSWLFs within its jurisdiction will

comply with the Federal Criteria in 40

CFR part 258.

One commenter asked whether the

Campo Band has state status, what gives

them the right to form their own EPA,

and whether they are no longer

California residents if they don’t have to

follow California law. The Campo Band

is a federally recognized Indian tribe—

a sovereign entity within the United

States. Federal courts have affirmed the

sovereign status of Indian tribes in

numerous judicial decisions which have

uniformly held that tribal governments

retain many sovereign powers, despite

the fact that Indian tribes and tribal

territories have been incorporated into

the United States. See Worcester v.

Georgia, 31 U.S. (6 Pet.) 515 (1832); and

United States v. Mazurie, 419 U.S. 544

(1975). As such, tribes may form their

own governmental entities to regulate

their members and activities on land

within their jurisdiction. This includes

the authority to form and administer

their own environmental regulatory

programs. Activities in Indian country

are generally not subject to state law

(see discussion under Category A

above). Nonetheless, under the Indian

Citizenship Act of 1924, 8 U.S.C.

1401(a)(2), and the 14th Amendment to

the U.S. Constitution, any member of a

tribe born in the United States is a

citizen of the United States and of the

state where he or she resides.

Two commenters asked whether the

Campo Band had the constitutional

authority to be treated as a state. Both

the U.S. Constitution and the Campo

Band’s Constitution provide authority

for today’s decision. Under the U.S.

Constitution, tribes are sovereign

entities with power over their lands and

members, and the U.S. Congress is

delegated the power to regulate

commerce with the tribes. U.S.

Constitution, Article I, section 8,

paragraph 3. Congress has exercised this

authority by determining that EPA may

treat tribes in the same manner as states

for certain purposes under several

environmental statutes, including, for

example, the Clean Water Act section

518, 33 U.S.C. 1377. It is important to

note that today’s action does not make

the Campo Band a state, or grant any

rights to members of the Campo Band

that they did not otherwise possess, or

divest the State of California of any

rights it might have with respect to the

Campo Band. Today’s action simply

states that EPA has determined that, for

purposes of RCRA Subtitle D, the

Agency treated the Campo Band’s

application for solid waste program

approval in the same manner as it

would treat such an application from a

state, and found it to be adequate.

One commenter supported EPA’s

position, stating that ‘‘the Federal

Constitution strongly supports the

conclusion that, as a general rule, Indian

tribes that constitute sovereign

governments are not subject to state

solid waste management requirements’’,

and that the Supreme Court ‘‘has

repeatedly held that tribes are sovereign

entities that ‘retain attributes of

sovereignty akin to those possessed by

other governmental bodies; that is,

power over people and territory’ ’’.

The Campo Band’s Constitution

establishes the Campo General Council

and empowers it to govern the affairs of

the Tribe. Constitution of the Campo

Band of Mission Indians, Article IV.

Pursuant to this power, the General

Council passed several Resolutions

establishing the Campo Environmental

Protection Agency (Resolution 88–005),

enacting the Campo Band of Mission

Indians Environmental Policy Act of

1990 and the Solid Waste Management

Code of 1990 (Resolution 90–0019).

C. Off-Reservation Voice in Tribal

Politics, Fair Hearings

Commenters expressed concern that,

despite the possibility of negative

environmental impacts to them, the

Campo Band’s neighbors have no voice

in tribal politics, cannot vote tribal

officials out of office, and may not

receive a fair hearing in the Campo

Band’s Environmental Court when

actions against the landfill would

negatively affect tribal income.

EPA agrees that citizens should have

a voice in the regulation of the

environment. Neighbors of the Campo

Reservation have several avenues for

voicing their concerns regarding solid

waste practices on the Reservation. The

Campo Band has adopted laws requiring

that CEPA take specific actions in

response to complaints from any person,

and allowing any person adversely

affected by CEPA’s actions to challenge

CEPA in the Campo Environmental

Court. See V Campo Tribal Regulations

(C.T.R.) 590.02, 590.10, and I C.T.R.

150.02.

The fact that off-Reservation

neighbors cannot vote in tribal elections

is analogous to California residents who

live near a landfill in another state in

which they cannot vote. EPA cannot

require as a prerequisite for program

approval that a state or tribe allow nonresidents to vote in that state’s or tribe’s

elections. EPA believes that the

procedures adopted by the Campo Band

ensure that the Tribe will consider and

respond to concerns of off-Reservation

neighbors. In addition, the citizen suit

provision of RCRA, which authorizes

lawsuits in federal District Court, is still

available after EPA has approved a state

or tribal program.

One commenter stated that a common

requirement of state program approval

includes administrative or judicial

review procedures, and the commenter

alleges that the Campo Band expressly

disclaimed any ability by nontribal

members to seek judicial review of

Campo Band actions. The commenter

doesn’t indicate where the Campo Band

made such a disclaimer. However, as

discussed above, the Campo Band’s

program does allow nontribal members

to seek judicial review of Campo Band

actions. The Campo Band has explicitly

waived sovereign immunity for

purposes of such challenges to CEPA

actions in section 302 of the Campo

Environmental Policy Act.

D. Sole Source Aquifer

A number of commenters noted that

the Campo/Cottonwood Creek aquifer is

the sole source of drinking water

available to local communities in the

United States and Mexico, alternative

water sources would be expensive or

unavailable, and EPA has designated the

Campo/Cottonwood Creek aquifer a sole

source aquifer under section 1424(e) of

the Safe Drinking Water Act (SDWA).

Commenters suggested that because a

proposed landfill will be located near a

sole source aquifer, EPA should

disapprove the Campo Band’s regulatory

program.

EPA agrees that protection of

groundwater resources and sole source

aquifers is of utmost importance.

However, EPA cannot disapprove a state

or tribal regulatory program because a

sole source aquifer exists within its

jurisdiction. Under provisions of section

1424(e) of the SDWA, 42 U.S.C. 300h–

3(e), the EPA Regional Administrator
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices 21201

granted a petition for designation of a

Campo/Cottonwood Creek Sole Source

Aquifer (SSA) on May 5, 1993. Notice of

the designation was published in the

Federal Register on May 28, 1993 (58

FR 31024). The petition was submitted

for a 400-square mile area along the

U.S./Mexico border in the vicinity of

Campo, California.

Under section 1424(e) of the SDWA,

once an area has been designated a SSA:

No commitment for Federal financial

assistance (through a grant, contract, loan

guarantee, or otherwise) may be entered into

for any project which the Administrator

determines may contaminate such aquifer

through a recharge zone so as to create a

significant hazard to public health* * *

‘‘Federal financial assistance’’ is

defined in 40 CFR 149.101(g). Examples

of projects include sewage treatment

plants, funded in part by federal grant

monies, and housing projects receiving

federal loans. Neither EPA’s approval of

the Campo Band’s solid waste program

nor the proposed landfill meet the

definition of a federal financially

assisted project. Thus, the SDWA would

not prohibit either the proposed landfill

or program approval.

In reviewing state and tribal

regulatory programs, EPA determines

whether the programs will ensure

compliance with EPA’s landfill

regulations in 40 CFR part 258. EPA

believes that the Campo Band’s landfill

regulations, including its groundwater

monitoring and corrective action

regulations, will ensure compliance

with the exacting groundwater

monitoring and corrective action

requirements contained in EPA’s 40

CFR part 258 regulations. EPA also

believes that the Campo Band’s

regulations will ensure compliance with

40 CFR 258.3 which requires owners

and operators to comply with all other

applicable federal rules, laws,

regulations, or other requirements.

One commenter was concerned that

there is no proposed mitigation if the

groundwater supply is contaminated.

Mitigation measures for individual

landfills within the jurisdiction of a

state or tribal program are not required

or used as a basis for program decisions

by EPA. However, EPA’s 40 CFR part

258 requirements and the Campo Band’s

regulations contain strict standards for

groundwater monitoring, corrective

action and financial assurance. EPA

believes protection of groundwater

resources is of utmost importance. It is

the responsibility of the Campo Band to

ensure that landfills on the Reservation

comply with its regulations and permits.

One commenter asked if the Campo

Band takes over operations of the

proposed landfill, will they qualify for

federal funding and will the landfill

then fall under the definition of a

federal financially assisted project. This

comment would require EPA to

speculate without any information

about the legal or factual circumstances

under which the Campo Band might

apply for federal financial assistance.

EPA cannot at this time make a

determination as to whether the Campo

Band would seek or qualify for financial

assistance, whether the landfill would

be a federal financially assisted project,

or about the applicability of section

1424(e) of the SDWA to such potential

future financial assistance.

E. United States-Mexico Border Issues

A number of commenters expressed

concern about the potential

environmental and economic impacts of

the proposed landfill on the people and

communities in Mexico. Commenters

stated that the proposed landfill poses

risks to the rights of the Mexican border

communities to be free from threats to

their health and natural resources.

Specifically, commenters raised siting

concerns related to EPA’s

responsibilities under Executive Order

12114 (E.O. 12114), entitled

‘‘Environmental Effects Abroad Of

Major Federal Actions’’, and the

Agreement Between the United States of

America and the United Mexican States

on Cooperation for the Protection and

Improvement of the Environment in the

Border Area (La Paz Agreement).

E.O. 12114 calls for environmental

assessment of major federal actions

having significant effects on the

environment outside the borders of the

United States. EPA does not believe that

approval of the Campo Band’s

regulatory program is a major action

which will have significant

environmental effects outside of the

United States. As noted above, EPA’s

decision regarding the adequacy of the

Campo Band’s regulatory program is not

a ruling on any landfill which might be

proposed under their regulatory

program. EPA notes that approval of

state and tribal regulatory programs is

not among the activities to which

environmental review requirements

apply under EPA’s rules for

implementing the Executive Order. 40

CFR 6.1002.

40 CFR 6.1002 states that review

requirements apply to major permitting

or licensing by EPA of facilities which

affect the global commons or the

environment of a foreign nation,

including permitting under the Clean

Air Act. 40 CFR 6.1004(c) provides that

the information required to be

submitted by the permit applicant

satisfies the requirements of E.O. 12114.

EPA agrees that assessment and

consideration of the transboundary

impacts of sites in the border zone are

extremely important. EPA has

maintained open communications with

Mexico regarding the proposed landfill

and the regulatory program approval

process. In June 1992, the Hazardous

Waste Work Group, established under

the La Paz Agreement, formally adopted

a ‘‘Consultative Mechanism for

Exchange of Information Between the

United States and Mexico on Facility

Siting.’’ This consultative mechanism,

although it is not legally binding, sets

forth the intent of the United States and

Mexican governments to notify each

other of waste sites proposed for

construction in the border area of their

respective countries. The consultative

mechanism was approved by the

National Coordinators of the La Paz

Agreement in 1992, and forms the basis

upon which EPA has continued to

inform counterpart officials in Mexico

of developments regarding the proposed

Campo municipal solid waste landfill.

EPA has made every effort to provide

Mexican officials with information on

the proposed site and take their

concerns about this matter into

consideration.

The Binational Hazardous Waste

Work Group, as established under the

1983 La Paz Agreement, is the forum

through which the United States

continues to notify and inform the

government of Mexico of waste disposal

sites proposed to be constructed within

the border area of the United States

which are subject to U.S. environmental

regulatory review, and which might

have a transboundary impact in the

Mexico border zone. The Work Group is

also the main forum for bilateral

discussions of such proposed sites.

These notifications, the provision of

information by the United States to

Mexico, and the nature of the

discussions that take place at the Work

Group meetings are reported to both

governments at annual meetings of the

National Coordinators, as specified in

the La Paz Agreement. Moreover, the

government of Mexico and its citizens

were encouraged to participate in the

public hearing as part of EPA’s review

process for approval of the Campo

Band’s regulatory program. EPA has

sent Mexico extensive information on

the proposed landfill and on EPA’s

actions related to the proposed landfill.

In the interest of furthering our efforts

to communicate fully with Mexico on

this site, EPA coordinated a meeting

between U.S., Mexican and Campo

Band government agencies on July 1,

1994. The purpose of that meeting was

to share information on the roles and
21202 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices

authorities of the different agencies

involved in regulating and permitting

the proposed landfill. EPA will keep the

appropriate Mexican officials fully

informed on EPA’s actions concerning

the Campo Band’s program and the

proposed landfill.

In addition, CEPA has maintained

open communications with the

Government of Mexico with regard to

the proposed landfill. EPA has

encouraged CEPA to continue to

respond to the Mexican government’s

concerns directly in the spirit of open

communication.

In sum, EPA believes that the

appropriate forums for raising concerns

regarding the siting of the proposed

landfill are the Binational Hazardous

Waste Work Group, the National

Environmental Policy Act (NEPA)

process and CEPA’s permitting process.

With respect to potential environmental

and economic impacts to Mexico and

the U.S., comments have been

responded to in Category K below.

F. Capability of the Campo Band

A number of commenters suggested

that the Campo Band and the Campo

Environmental Protection Agency lack

regulatory and enforcement history and

ability and, in some cases, selectively

enforce regulations. Commenters

suggested that CEPA does not have the

ability or willingness to enforce its

regulations. Some commenters

suggested that EPA should deny the

Campo Band’s program, reconsider the

Campo Band’s application for approval

of its regulatory program after a track

record has been established, and

supervise the Campo Band. One

commenter stated that the Campo Band

has no education or experience in the

solid waste arena. One commenter

stated that it would be wrong to approve

the program of such a small

organization. EPA also received

comments stating that CEPA and the

Campo people are independent,

capable, and concerned about protecting

their environment and water.

Commenters stated that the Campo

Band’s regulatory program is second to

none.

EPA believes that the Campo Band’s

program meets or exceeds federal

standards and that the Campo Band is

capable of managing its regulatory

program. The Campo Band has shown

that it has jurisdiction and its staff

resources are adequate to manage its

solid waste permitting program. The

Campo Band’s application shows that

CEPA devotes over three full-time

positions to landfill permitting,

monitoring and enforcement. The

Campo Band also has contracts with

firms providing personnel with legal

and technical expertise.

In addition to demonstrating that its

staff resources are adequate, the Campo

Band’s application demonstrates that it

has management and technical skills.

CEPA employs individuals with years of

environmental regulatory experience

and degrees in engineering and geology.

The Campo Band application also

demonstrates that the Campo Band has

entities that exercise executive

(Executive Committee), legislative

(General Council) and judicial (Campo

Environmental Court) functions. The

Campo Band has also demonstrated

experience in implementing public

health and environmental programs.

The Campo Band has adopted codes,

ordinances or regulations governing

land use planning, housing, gaming and

solid waste. CEPA has monitored

development of the proposed landfill on

the Reservation and has worked closely

with the State of California to ensure

that solid waste activities on the

Reservation will comply with California

law. Finally, the Campo Band has

demonstrated independence between

tribal regulatory entities and regulated

entities.

EPA notes that prior solid waste

regulatory history is not a requirement

for EPA approval of a solid waste

permitting program. The fact that

Congress gave states 180 days after

adoption of federal landfill standards to

adopt and implement programs

ensuring compliance with those

standards indicates that Congress

anticipated that states (and tribes) may

not have had such programs in place

before the federal standards were

promulgated. EPA believes that tribes

are fundamentally able to regulate the

environment in the same manner as

states, and notes that states have a

variety of levels of experience in

environmental regulation. The ability to

adopt and implement environmental

laws varies widely from state to state

and tribe to tribe. EPA evaluates each

state and tribe individually to determine

whether it has adopted, and is capable

of enforcing, a solid waste program that

is adequate to assure compliance with

the federal regulations. Some states have

not demonstrated a history of adopting

or enforcing solid waste requirements

prior to applying to EPA for program

approval under RCRA Subtitle D. EPA is

taking today’s action because the

Agency has determined that the Campo

Band’s program is adequate to assure

compliance with the federal regulations.

The Tribe not only has permitting

authority, technical standards, public

participation procedures and

enforcement authority that meet or

exceed the federal standards, but also

the staff, resources and technical

expertise available to implement and

enforce the program.

Some commenters specifically stated

that CEPA has not enforced its

regulations in cases of auto crushing,

septic systems, tire burial and litter

control. EPA wishes to clarify that

review and approval of the Campo

Band’s program is related solely to the

Campo Band’s landfill permitting and

enforcement program. Regulation of car

crushing, septic systems, tire burial and

litter are not covered by this action and

are not legal grounds for denial of a

solid waste regulatory program. EPA

suggests that commenters concerned

about these activities raise their

concerns with CEPA and/or other

appropriate tribal or federal agencies.

Further information regarding

hazardous waste concerns involving car

crushing is provided below.

One commenter expressed concern

that no matter how good regulations are,

they can’t prevent pollution, it is

difficult to enforce them—that most

people don’t have the time, energy and

money to bring citizen suits—and that it

is difficult to clean up contaminated

groundwater.

EPA understands that regulations are

only as good as the ability to enforce

them. EPA’s regulations are designed to

minimize environmental and health

impacts from landfills. Congress did not

give EPA authority to oversee directly

the operations of landfills. Therefore,

approving adequate state and tribal

programs to regulate landfills is the best

way to ensure that the regulations are

enforced. EPA believes that the Campo

Band’s program meets or exceeds

federal standards and that the Tribe has

demonstrated interest in appropriately

regulating facilities under its

jurisdiction.

Finally, if CEPA is unable, for

whatever reason, to enforce the program

requirements, and the proposed landfill

fails to comply with the Federal Criteria,

RCRA section 7002 allows any person to

sue the owner or operator of the landfill.

In addition, withdrawal of program

approval may be initiated where it

appears that a state or tribal permit

program may no longer be adequate to

ensure compliance with the RCRA

Subtitle D Federal Criteria. Section

239.13 of the draft STIR specifies

conditions and procedures which would

be used by EPA as guidance for

withdrawal of adequacy determinations.

G. Conflicts of Interest

Several commenters raised concerns

that the Campo Band may have

potential conflicts of interest in
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices 21203

3Other federal statutes contain statutory

provisions establishing conflict of interest

requirements for state programs. See Clean Water

Act section 304(i)(2)(D), 33 U.S.C. 1314(i)(2)(D);

Clean Air Act section 110(a)(2)(E)(ii), 42 U.S.C.

7410(a)(2)(E)(ii). For example, under Clean Water

Act section 304(i), state programs must have a

conflict provision similar to California PRC section

40402 to obtain EPA authorization. Nothing in

RCRA, the Federal Criteria in 40 CFR part 258, or

the draft STIR requires such a provision. Therefore,

EPA has not required that any state or tribe

establish conflict of interest codes in order to

demonstrate that a solid waste program is adequate

to assure compliance with the Federal Criteria.

regulating a proposed landfill that will

provide income for the Tribe. These

issues are discussed below.

First, however, it is important to

explain that nothing in Subtitle D of

RCRA requires that EPA consider

conflict of interest in determining the

adequacy of a state or tribal solid waste

permitting program. There is language

in the preamble to the draft STIR that

addresses conflicts of interest, but it

merely encourages states and tribes to

work with local agencies and provide

oversight to prevent problems such as

local conflicts of interest. The preamble

also incorporates the criteria used in

other environmental statutes to evaluate

whether to treat tribes in the same

manner as states. These requirements

are that a tribe: (1) Be federally

recognized, (2) have a government

exercising substantial powers, (3) have

jurisdiction over the parties and the

subject matter to be regulated, and (4) be

reasonably expected to be capable of

managing the program. The capability

requirement is not defined or discussed

in the draft STIR. However, where EPA

has adopted regulations addressing this

‘‘capability’’ requirement in other

statutes, the Agency has considered

whether the tribe has demonstrated

‘‘sufficient independence’’ of the

regulated and regulatory entities of the

tribe ‘‘to assure effective and fair

administration of the program.’’ 40 CFR

123.31, 58 FR 67981 (December 22,

1993). EPA believes that the Campo

Band has met these standards.

The proposed Campo landfill will not

be operated and regulated by the same

tribal entity. The operator of the

proposed landfill will not be CEPA, but

a private, non-tribal company. MuhtHei, Inc., the tribal business entity, is a

separate tribal entity from CEPA. The

Campo Band’s regulations define MuhtHei, Inc. as the operator of any solid

waste facility on the Reservation. This

situation is analogous to a privately

operated landfill owned by one state

agency and regulated by another.

One commenter stated that the Campo

Band should have conflict of interest

codes for tribal office holders and board

members, similar to those in California’s

Government Code sections 87300, 87302

and Public Resources Code (PRC)

sections 43207, 40402 and 40709.5. The

comment asserted that the Campo Band

could not meet the standards set by

these provisions.

Although not required by RCRA, the

Federal Criteria in 40 CFR Part 258 or

the draft STIR, the Campo Band has

adopted regulations governing conflicts

of interest.3 For example, the Campo

Band has adopted a regulation

governing conflicts of interest on the

part of the CEPA Board of

Commissioners. This regulation

provides that:

A member of the Board may not participate

in decisions relating to the governance and

management of CEPA if the member has a

direct financial interest in the person or

activity being regulated. Tribal membership

does not preclude participation in decisions

involving activities on or relating to property

owned by the Band.

I C.T.R. 110.10. A similar provision for

judges on the Campo Environmental

Court is set forth in I C.T.R. 150.09(e).

Campo law also prohibits bribery,

threats, or other efforts ‘‘to obstruct or

impede the activities of CEPA or the

Board’’, or to ‘‘commit fraud * * * with

the intent to evade or defeat Tribal

environmental codes or regulations,’’ III

Campo Environmental Policy Act

303(a).

EPA believes that the Campo Band

has taken steps to prevent conflict of

interest through adoption of I C.T.R.

110.10, 150.09(e), and III Campo

Environmental Policy Act 303(a),

quoted above. EPA also believes that the

Tribe is not ‘‘regulating itself’’, because

the actual operator of the landfill, MidAmerican Waste Systems, Inc., is not a

tribal entity, and CEPA and Muht-Hei

are ‘‘sufficiently independent to assure

effective and fair administration of the

program.’’ 40 CFR 123.31, 58 FR 67981

(December 22, 1993). The Tribe has also

adopted provisions allowing anyone

(including non-members) to challenge

CEPA in the Campo Environmental

Court. See III Campo Environmental

Policy Act 302, I C.T.R. 150.02.

Several commenters expressed

concern that the Campo Band has a

conflict of interest because it has

received and will continue to receive

revenues from the operator of the

landfill, and would therefore not

enforce costly requirements that could

reduce tribal income. One commenter

suggested that this conflict is

particularly acute because adverse

impacts of the proposed landfill may be

more serious outside the Reservation.

Commenters felt CEPA did not have the

incentive, objectivity or willingness to

enforce the solid waste requirements.

One commenter asked what incentive

there is for tribal authorities not to

accept gifts that can influence decisions.

Another commenter suggested that

approving the Campo Band’s program

would be like ‘‘the fox guarding the

chicken house’’, whereas states have

demonstrated ability to enforce

environmental regulation over many

decades. One commenter suggested that

the Tribal Chairman had prematurely

approved the landfill permit to operate

by stating that the landfill will open in

June 1995. In contrast, one commenter

stated that it is not true that the

economic opportunity of a landfill is

more important to tribal members than

environmental protection of the land.

EPA disagrees that the Campo Band

does not have the incentive, objectivity

or willingness to enforce the solid waste

requirements. The Campo Band has

adopted landfill liner design and release

detection regulations which are more

stringent—and more costly to

implement—than the federal or

California requirements, and which are

beyond those needed to obtain EPA

approval. This indicates that the Campo

Band is willing to take steps to protect

human health and the environment

despite the fact that such steps will cost

money and potentially reduce revenues

from the proposed landfill. In addition,

CEPA makes decisions on applications

for landfill permits in accordance with

its regulations, after notice and an

opportunity for public comment,

regardless of statements by the Tribal

Chairman.

H. Adequacy of the Campo Band’s

Resources

A number of commenters expressed

concern that ‘‘there is a shortage of

funds in the backcountry which would

not provide the adequate supervision

this would need’’ and CEPA has

inadequate resources to implement or

enforce a regulatory program.

Commenters asserted that MidAmerican Waste Systems, Inc., the

proposed landfill operator, is having

financial problems and asked where the

Campo Band will get resources to fund

its program if Mid-American Waste

Systems, Inc. fails to provide adequate

resources.

The Campo Band addressed resources

in its narrative description of the

application for program approval. EPA

found the Campo Band’s narrative

description, including its staff resource

description, adequate. EPA does not

require specific resource and staffing

requirements because each state or tribe
21204 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices

has different resource requirements and

strategies for ensuring compliance. EPA

asks that states and tribes list the total

number of regulated facilities within the

state or tribe’s jurisdiction in its

application. This information is useful

in assessing whether available resources

are adequate to ensure compliance. The

Campo Band’s ratio of resources to the

number of regulated facilities is higher

than some state regulatory programs.

In determining whether a state or

tribe’s program will ensure compliance

with the federal landfill regulations,

EPA does not require that states and

tribes provide financial information on

where funding for programs is generated

or on how secure that funding is. As

discussed above, the Campo Band and

other approved states and tribes are

expected to sustain the regulatory

program presented in their applications.

Withdrawal of program approval may be

initiated where it appears that the state

or tribal permit program may no longer

be adequate to ensure compliance with

the RCRA Subtitle D Federal Criteria.

I. CEPA’s Authority to Stop Harm to OffReservation

One commenter requested that section

205 of the Tribal Environmental Policy

Act of 1990 (Act), which provides

authority to issue restraining orders and

injunctions, be amended to include

protection of off-Reservation residents

and environments.

Section 205(a)(2)(C) of the Act, as it

read on the date EPA published its

tentative determination, provided that

emergency restraining orders could not

be issued without notice to the adverse

party unless immediate and irreparable

injury, loss or damage would result to

the Reservation residents or

environment before notice could be

served. Section 205(b)(2)(C) did not

clearly provide for preliminary or

permanent injunctions against acts that

threatened the public health or safety or

the environment off-Reservation. EPA

discussed the concern raised by this

comment with the Campo Band. In

response, on December 11, 1994, the

Campo Band General Council amended

section 205 of the Act. That section now

clearly provides for issuance of

emergency restraining orders and

injunctions against acts that threaten

human health, safety or welfare or the

environment, without distinguishing

between on-Reservation and offReservation threats. A copy of the

amended Act is available at EPA’s office

in San Francisco, at the Campo

Environmental Protection Agency’s

office and at the public library in the

town of Campo.

J. Campo Band Leadership and

Membership

A number of commenters expressed

concern regarding alleged corruption in

the Campo Band. One commenter

asserted that tribal officials are on their

best behavior to obtain approval from

regulatory agencies, but have not always

acted responsibly. Commenters also

asserted that tribal members intimidate

off-reservation opponents to the landfill

and that the Chairman of the Campo

Band had illegally received payments

from landfill project proponents. One

commenter also stated that non-tribal

members had voted on tribal issues at

tribal meetings.

EPA does not believe these allegations

should be considerations in EPA’s final

determination regarding the adequacy of

the Campo Band’s regulatory program.

For the reasons described above, EPA

believes that the Campo Band’s solid

waste regulatory program will ensure

compliance with the federal regulatory

requirements. The Campo Band created

CEPA to regulate solid waste on the

Reservation. CEPA has regulatory

authorities that are separate from the

authority of the Chairman of the Campo

Band and from the authorities of the

tribal council. EPA has been informed

that appropriate federal agencies have

been apprised of these allegations.

K. Landfill-Specific Issues

Many commenters expressed concern

regarding the potential environmental

impacts of the proposed landfill and the

ability of the landfill owner/operator to

comply with applicable regulations.

These landfill-specific concerns

included potential for contamination to

groundwater which flows across the

United States-Mexico border, ability to

monitor and clean up or mitigate

groundwater in a fractured bedrock

setting, location of a landfill in a seismic

impact zone, compliance with financial

assurance requirements, strong winds,

traffic problems; and general risks to the

ecosystem, economy and property

values of off-reservation residents, and

to Mexican communities and citizens. A

number of commenters noted that

groundwater monitoring in the fractured

bedrock setting has not been adequately

addressed. One commenter expressed

concern that the landfill site should be

characterized before construction of the

landfill, not during or after. Commenters

expressed concern regarding

importation of waste to a groundwater

dependent area and asked about sources

and types of waste to be sent to the

landfill, life expectancy of the landfill,

and recycling efforts. Commenters

requested that EPA oppose the proposed

facility and deny program approval

because of landfill-specific concerns.

Other commenters suggested that the

landfill will be one of the safest landfills

in the country, will provide economic

support and jobs for the Tribe and will

benefit other communities. Another

commenter stated that the plan for the

Muht-Hei facility is very detailed and

well thought out.

EPA understands that there is

tremendous controversy surrounding

the proposed landfill. However, EPA

does not make solid waste permitting

decisions about individual landfills

under the RCRA program. EPA’s action

today approves the Campo Band’s solid

waste regulatory program. This program

approval means that EPA has reviewed

the Campo Band’s regulatory program,

and has determined that it will ensure

compliance with the Federal Criteria.

Concerns regarding the proposed

landfill or the ability of the landfill to

comply with applicable regulations

should be raised with the agency

responsible for ensuring compliance

with those regulations. CEPA, the U.S.

EPA, the Bureau of Indian Affairs (BIA)

and the California Environmental

Protection Agency (Cal EPA) all have

roles with respect to the proposed

landfill. It should be noted, however,

that the U.S. EPA’s permitting role is

limited to permitting under the Clean

Air Act.

One commenter stated that it will be

adversely impacted by flaring, dust

generation, truck haul activities,

training, and water and light pollution

from the landfill. Potential air pollution

from flaring, dust generation and truck

haul activities are issues that are being

addressed through U.S. EPA’s

permitting under the Clean Air Act.

With respect to the remaining concerns,

EPA’s action today is a determination

that the Campo Band’s solid waste

permitting program is adequate to

assure compliance with the federal

regulations at 40 CFR part 258. A

landfill may be constructed and

operated without EPA approval of the

state or tribal program in which the

landfill is located, as long as it meets

these federal requirements. EPA’s

regulations were designed to minimize

negative environmental impacts from

the management of municipal solid

waste. However, Congress gave EPA no

authority to enforce these requirements

unless it finds that the landfill is in a

state or within the jurisdiction of a tribe

without an adequate permitting

program. Because EPA has determined

that the Campo Band’s program is

adequate, the appropriate agency to

which concerns about the actual

construction and operation of the
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices 21205

proposed landfill should be raised is the

Campo Environmental Protection

Agency.

One commenter stated that it is

unacceptable for the Campo Band to

pursue the landfill venture to the

detriment of the neighboring

communities. Another commenter

stated that the majority of air quality

and groundwater impacts from the

proposed landfill will be offReservation, that the proposed landfill

will be run by a non-Indian corporation

with main offices over 1000 miles from

the Reservation, and that the proposed

landfill will be dependent on offReservation facilities such as materials

recovery facilities (MRFs). At the same

time, this commenter stated that the

proposed project appears to be an

example of ‘‘the poisoning of Indian

country’’.

These issues do not directly affect the

Agency’s determination of the adequacy

of the Campo Band’s solid waste

permitting program. Any landfill is

likely to have positive and negative

environmental and economic impacts

on both the community in which the

landfill is located and the surrounding

communities. EPA’s regulations were

designed to minimize negative

environmental impacts from landfills,

and all landfills must comply with these

regulations. However, landfills may be

sited in Indian country regardless of

whether EPA approves tribal solid waste

programs. EPA’s decision today is based

upon the Campo Band’s ability to

ensure compliance with the 40 CFR part

258 regulations. EPA has determined

that the Campo Band has a solid waste

permitting program that is adequate to

assure compliance with those

regulations.

One commenter noted that U.S. EPA’s

comments on the environmental impact

statement (EIS) for the proposed landfill

identified serious concerns about ability

to monitor adequately for groundwater

contamination and stated that projects

of this kind should not be sited over

potable groundwater basins within

fractured bedrock. Another commenter

asked that EPA deny the lease for the

proposed landfill.

BIA is required to approve any lease

for land held in trust by the United

States for the benefit of a tribe. BIA lease

approval is subject to NEPA and BIA

has determined that the Campo lease

approval is a major federal action which

requires the preparation of an EIS. Both

the EIS and the lease for the proposed

landfill were prepared and approved by

the BIA. EPA’s comments on the EIS

reflected concerns regarding

groundwater monitoring and corrective

action in the fractured bedrock setting.

The Secretary of the Interior signed a

Record of Decision finalizing the EIS

and approving the lease after

consideration of comments. As stated

above, the decision before EPA is the

Campo Band’s program adequacy; states

and tribes are the lead entities

responsible for landfill permitting and

enforcement. The Campo Band has

developed its own landfill permitting

program and CEPA is the appropriate

agency to consider issues relating to a

particular landfill on the Campo

Reservation.

One commenter asked who will be

monitoring what goes on at the

proposed landfill and whether Campo

would have to answer to the same

regulations as the landfills that the City

of San Diego must meet. The landfill on

the Campo Reservation will be

monitored by the facility operator, with

oversight by CEPA. Any landfill on the

Campo Reservation must comply with

the Campo Band’s laws. In addition, if

EPA issues a permit under the Clean Air

Act, EPA will monitor compliance with

that permit. A landfill on the

Reservation generally would not be

required to comply with any

requirements imposed by the State of

California or a county or city. The

Campo Band has, however, worked with

Cal EPA to ensure that the Campo

Band’s requirements are functionally

equivalent to California’s requirements.

L. Liability for Groundwater

Contamination

Several commenters were concerned

about who would be liable for any

groundwater contamination caused by

the proposed landfill. Both the federal

regulations and the Campo Band’s

regulations require groundwater

monitoring; the Campo Band’s

regulations go beyond the federal

standards to require monitoring of the

vadose zone (soil above the water table).

If pollutants exceed specified

concentrations, the owner or operator

must implement a cleanup program, and

provide the funds to pay for the

cleanup. Campo Band regulations also

require the operator to provide

minimum financial assurance of $1

million per occurrence to reimburse

third parties for bodily injury and

property damage.

One commenter expressed concern

about the vagueness of the Campo

Band’s regulation requiring that the

landfill operator maintain minimum

financial assurance of $1 million per

occurrence to compensate third parties

for bodily injury or property damage.

The commenter expressed concern that

the amount may be inadequate, alleging

that the cost of cleaning up the TorresMartinez facility is high, and that the

operator of that facility has declared

bankruptcy.

The regulation cited by the

commenter provides for $1 million to

reimburse third parties for injuries or

damage, not for performing corrective

actions. Federal regulations do not

require financial assurance to

compensate third parties. Therefore, the

Campo Band’s regulation is in excess of

federal requirements. The federal

regulations do require that landfill

owners and operators establish financial

assurance for corrective action after a

release has occurred (40 CFR 258.73).

This requirement is intended to

minimize the possibility that the

operator will fail to provide sufficient

funds to clean up contamination. The

Campo Band’s regulations (V.C.T.R.

530.41, 530.93), like the federal

regulations, require financial assurance

in the full amount of the estimated cost

of the corrective action in addition to

the provision for reimbursing third

parties noted above. Moreover, the

Campo Band’s regulations go beyond

the federal regulation. The Campo

Band’s regulations require that operators

provide financial assurance for ‘‘known

or reasonably foreseeable’’ corrective

action—before any release has occurred.

M. Purpose and Effect of Program

Approval

One commenter recommended that

EPA deny the Campo Band’s program

because the primary intent of approval

is to facilitate the operation of the

proposed landfill. The primary intent of

EPA’s approval of state and tribal

programs under Subtitle D of RCRA is

to ensure that solid waste permitting

programs are in place which will ensure

compliance with the federal regulations.

EPA believes that the Campo Band’s

program will ensure compliance of the

Federal Criteria. The fact that the federal

regulations provide some flexibility to

landfills in approved states and tribes

and that EPA’s approval of a state or

tribal program may facilitate operation

of some landfills is not an adequate

reason to disapprove a state or tribal

program. In fact, most states and several

tribes are pursuing program approval in

part because some of the flexibility

provisions will facilitate construction

and operation of landfills within their

jurisdiction. EPA designed the Federal

Criteria with flexibility so that state and

tribal regulatory agencies could

implement the Criteria taking into

account local conditions, while

specifically setting criteria which are

protective of human health and the

environment.
21206 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices

One commenter suggested that EPA’s

ultimate responsibility is to protect the

environment. This commenter also

stated that the CEPA regulations will

not eliminate or mitigate risks such as

the risks to the Sole Source Aquifer at

the proposed project site. EPA disagrees

with the commenter’s statement that

CEPA regulations will not eliminate or

mitigate the risks at the proposed

project site. Prior to promulgation of the

Federal Criteria in 1991, a landfill could

have been constructed and operated on

the Campo Reservation with fewer

restrictions than those contained in the

40 CFR part 258 Criteria. The federal

regulations were adopted to minimize

environmental and public health risks

from landfills. These regulations impose

strict standards for design, construction,

operation, monitoring, corrective action,

closure, post-closure care and financial

assurance. The Campo Band’s

regulations set forth stringent standards

that meet or exceed the federal

standards. CEPA is responsible for

ensuring that these standards are met.

Although regulations can never

completely eliminate risks from a

project, the Campo Band has adopted a

set of standards in addition to the

federal minimum requirements which

should result in the mitigation of risks

associated with the proposed landfill.

One commenter gave three reasons

why owners and operators complying

with approved state/tribal programs

should not be considered to be

complying with the federal regulations.

First, only certain elements of approved

programs may be modified in approved

programs. Second, the Campo Band is

not a ‘‘state’’, and therefore cannot

modify the requirements in 40 CFR part

258. Third, the statement in the

tentative determination shows that a

purpose of EPA’s action is to restrict

citizen suits and create defenses for

entities violating the federal regulations.

EPA disagrees with all three points.

First, EPA approval of a state or tribal

program does not allow the approved

state or tribe to modify or waive entirely

the requirements in 40 CFR part 258.

The regulations in 40 CFR part 258

allow alternatives to the prescribed

federal requirements only when certain

criteria are met. These alternatives are

allowed in the federal regulations

because EPA believes that when the

Federal Criteria are met, the alternatives

will protect human health and the

environment as well as the prescribed

requirements. EPA’s determination that

the Campo Band’s program is adequate

to ensure compliance with the Federal

Criteria is based on the fact that any

alternatives allowed by the Campo

Band’s laws meet the criteria required

by the federal regulations. Second, as

explained above, EPA has authority to

treat tribes in the same manner as states

for purposes of implementing RCRA

Subtitle D solid waste programs. Third,

EPA’s action is not intended to restrict

citizen suits or provide defenses for

landfill owners or operators who violate

the federal regulations. If a landfill

owner or operator violates the Federal

Criteria, it may be subject to citizen

suits. EPA’s statement in the tentative

determination simply expressed the

Agency’s opinion that, where EPA has

found a state or tribal requirement

equivalent to the federal requirement, a

court is likely to find compliance with

the state or tribal requirement

equivalent to compliance with the

federal requirement.

One commenter raised concerns about

possible increases in permitted capacity

of the landfill without public review

and comment. The commenter also

asked if, with program approval, the

Campo Band will be able to designate

the Class III (solid waste) landfill a Class

II (hazardous waste) landfill, bypassing

public participation and claiming that

enough environmental studies of the

area have been done.

The Campo Band’s program complies

with the public participation

requirements of RCRA section

7004(b)(1). In addition, EPA’s draft STIR

sets forth general standards for public

involvement in permit determinations.

EPA reviewed the Campo Band’s public

involvement requirements and found

that they are adequate.

In general, issues regarding permitted

capacity are not within the scope of

program approval and should be

addressed to CEPA. The proposed

landfill is not authorized to accept

hazardous waste. Class II and Class III

are California State and Campo Band

classification categories for waste

disposal facilities. Program approval

will not affect the Campo Band’s ability

to designate a facility Class II or III. Nor

will program approval affect the Campo

Band’s public participation

requirements or requirements that

environmental studies be done. Program

approval simply indicates that the

Campo Band’s municipal solid waste

landfill permitting and enforcement

program will ensure compliance with

the Federal Criteria. EPA and Campo

Band regulations prohibit disposal of

regulated hazardous waste in landfills

receiving municipal solid waste unless

the landfill is permitted to receive

hazardous waste by the U.S. EPA or an

authorized state or tribe. EPA has not

issued a hazardous waste permit for a

facility on the Campo Reservation, and

the Campo Band is not currently

authorized for the RCRA hazardous

waste program and, therefore, cannot

issue a RCRA hazardous waste permit.

For more discussion of hazardous waste

issues, see the responses to comments

under Category P below.

Several commenters raised the

concern that the Campo Band would be

able to modify and waive federal

requirements. EPA does not agree with

this characterization of the flexibility

allowed in the federal regulations. The

federal regulations contain detailed

criteria that landfill owners and

operators must meet. In limited cases,

the regulations provide that the director

of an EPA-approved program may allow

alternatives if the owner or operator

demonstrates that the landfill meets

certain criteria. For example, 40 CFR

258.21 specifies that solid waste must

be covered with six inches of earthen

material at the end of each operating

day. That same section provides that in

an approved program the Director may

approve alternative materials of

alternative thickness if the owner or

operator can demonstrate that such

alternatives control disease vectors,

fires, odors, blowing litter and

scavenging without presenting a threat

to human health and the environment.

The Director may not approve

alternative cover that can’t meet the

demonstration. The Director also may

not decrease the frequency of applying

cover. The Director may only waive

daily cover requirements temporarily

when the owner or operator

demonstrates that extreme climatic

conditions make meeting the

requirements impractical. EPA has

carefully reviewed the Campo Band

solid waste program and determined

that it does not provide for any

modifications or waivers which would

not be allowed under the federal

regulations.

One commenter was concerned about

the ability to assess ‘‘non-specified,

future’’ alternatives to the Federal

Criteria which would be allowed under

an approved program. The comment

essentially questions EPA’s allowance of

alternatives in the federal regulations.

EPA explained its rationale for

providing such discretion when it

promulgated the federal regulations, 56

FR 50977, 50984–88 and 50992–94

(October 9, 1991). Any challenge to

these regulations must have been

brought within ninety days of the

promulgation of these regulations,

pursuant to RCRA section 7006. EPA’s

approval of the Campo Band’s program

is based on EPA’s conclusion that the

Campo Band’s laws contain all the

criteria set forth in the federal

regulations for allowing alternatives to
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices 21207

the self-implementing federal

requirements.

Several commenters stated that the

Campo Band would be able to set up

defensive barriers to citizen

enforcement actions to correct problems

at the landfill. EPA does not agree. The

owners and operators of all landfills

will be subject to citizen suits under

section 7002 of RCRA. That section

allows any ‘‘person’’ to sue any

‘‘person’’ who is violating any permit,

standard, regulation, condition,

requirement, prohibition, or order under

RCRA, or who has contributed to the

handling of solid waste which may

present an imminent and substantial

endangerment to health or the

environment. Under this provision,

citizens may sue landfill owners or

operators for any violation of RCRA or

the federal regulations. The citizen suit

provision will remain in effect—and be

equally available to citizens—whether

EPA approves the Campo Band’s solid

waste permitting program or not. In

addition, the Campo Band has expressly

waived its sovereign immunity to allow

any affected person to challenge CEPA

actions in the Campo Environmental

Court. See III Campo Environmental

Policy Act 302. EPA’s approval will not

enable the Campo Band, CEPA or MidAmerican Waste Systems, Inc. to

establish any defensive barriers to

citizen enforcement actions.

One commenter stated that program

approval is a dangerous precedentsetting move because the proposed

landfill is the largest proposed solid

waste facility in the nation on an Indian

reservation. EPA does not believe that

approval of regulatory programs will

necessarily set a landfill siting

precedent for Indian country. Landfills

may be sited in states or in Indian

country without EPA approval of the

state or tribe’s regulatory program. All

such landfills must meet the Federal

Criteria in 40 CFR part 258. In addition,

EPA encourages states and tribes to

establish local regulatory structures to

ensure that municipal solid waste is

managed in an environmentally

protective manner. The Campo Band

has set standards which are more

stringent than federal standards, making

the proposed landfill more protective of

human health and the environment—

and making compliance potentially

more costly—than if there were no tribal

regulatory program in place. EPA

recognizes that some of the 40 CFR part

258 flexibility which may be provided

to municipal solid waste landfills by

approved states and tribes may be

important to the proposed landfill.

However, EPA believes that tribes

should have the same opportunities as

states to establish systems of landfill

permitting and enforcement. As

discussed above, states generally may

not regulate solid waste management in

Indian country, and EPA does not

generally have permitting or

enforcement authority under RCRA

Subtitle D. Therefore, allowing tribes to

establish solid waste regulatory

programs ensures oversight of solid

waste practices in Indian country.

One commenter suggested that EPA

should deny approval of the Campo

Band program because landfills deprive

present and future generations of

valuable resources and encourage waste

production instead of pollution

prevention and waste reduction. EPA

agrees that waste reduction and

pollution prevention are preferable

methods of managing municipal solid

waste to landfilling, to the extent

possible. In response to the growing

national concern about solid waste

management, EPA developed a national

strategy for addressing municipal solid

waste management problems. This

strategy is set out in a document

entitled, ‘‘The Solid Waste Dilemma: An

Agenda for Action,’’ which EPA issued

in February 1989. The cornerstone of

the strategy is ‘‘integrated waste

management,’’ in which the following

solid waste reduction and management

options work together to form an

effective system: source reduction,

recycling, and combustion and

landfilling. EPA encourages waste

reduction and recycling of municipal

solid waste. However, EPA also

recognizes the need for landfills.

Congress required EPA to adopt federal

regulations establishing minimum

national standards for landfills.

However, Congress emphasized, and

EPA believes that it is preferable, for

local, state and tribal governments to

adopt their own solid waste permitting

and enforcement programs so that

landfills are regulated in a manner that

is as environmentally responsible as

possible. Therefore, EPA supports

pollution prevention as the preferred

waste management alternative while

continuing to approve state and tribal

regulatory programs.

One commenter suggested that the

need to site a landfill on an Indian

reservation is a problem that has been

caused by the government of the United

States. Other commenters expressed

concern that they are paying the price

for what happened to Indians years ago.

One commenter noted that no one is

protesting other problematic landfills in

San Diego County that are not on Indian

land. This commenter also noted that

‘‘Mexico is a disaster, but I have the

Mexican people come and complaining

here.’’

EPA acknowledges that there is a

great deal of controversy surrounding

the proposed landfill. The proposal to

site the landfill on the Campo

Reservation for the purpose of economic

development has raised a great deal of

interest and concern among various

parties. EPA encourages open

communication among these groups and

will work to facilitate communication

where possible.

However, EPA strongly believes that

Indian tribes should have the same

opportunities to regulate the

environment available to them as are

available to states. This is consistent

with EPA’s Indian Policy and with

federal Indian law and environmental

law, including RCRA. EPA does not

believe that a state or tribal application

should be evaluated in a different

manner because of controversy

surrounding a proposed landfill.

Neighbors of proposed landfills in

California, for example, have raised

concerns about such landfills. These

concerns do not diminish the adequacy

of the state’s program. Likewise,

concerns regarding the proposed landfill

are most appropriately handled by

CEPA.

A number of commenters were

concerned that the proposed landfill is

being sited on an Indian reservation

because the landfill and its operator,

Mid-American Waste Systems, Inc., will

not have to comply with Federal, State

and municipal laws and cannot be

monitored by the Government. As stated

above, landfills in Indian country must

comply with Federal regulations,

including EPA’s 40 CFR part 258

landfill requirements. Generally, State

and local civil regulatory laws do not

apply in Indian country. Cabazon,

supra. However, the Campo Band has

established a regulatory system which is

as stringent as State and Federal

regulatory systems. The Campo Band is

not required to establish a landfill

permitting and enforcement system, but

has elected to do so. Therefore, the

proposed landfill will have to comply

with the Campo Band’s standards. In

addition, CEPA and the California

Environmental Protection Agency (Cal

EPA) have established a cooperative

agreement concerning permitting and

enforcement at the proposed landfill.

One commenter expressed concern

that landfill proponents rather than the

Campo Band launched a signature

campaign in support of the proposed

landfill. Although EPA recognizes that

the proposed landfill itself is highly

controversial, EPA’s decision regarding

the Campo Band’s regulatory program is
21208 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices

not an approval or disapproval of the

proposed landfill. Moreover, EPA’s

decision did not take into account the

sources of support for or opposition to

the landfill. Nor is EPA’s decision based

on the number of comments supporting

or opposing program approval. EPA

considered and responded to all

comments on their merits.

N. EPA Public Participation Procedures

A number of commenters expressed

concern regarding public involvement

activities related to EPA’s tentative

program approval of the Campo Band

program. Specifically, commenters felt

that the question and answer session

and the public hearing were held too far

away from the proposed landfill site in

a community that is not potentially

affected and does not rely on

groundwater, and that EPA should have

held these events at the Mountain

Empire High School. One commenter

also suggested that EPA hold additional

hearings closer to the sources of

potential impacts. One commenter

expressed thanks to EPA for conducting

the hearing in the city of Alpine.

EPA considered a number of possible

hearing locations in the area and found

that the Alpine Elementary School was

the most appropriate location taking

into account the size of rooms available,

the potential attendance at the hearing,

and distance from local communities.

The Alpine Elementary School

auditorium was the only available room

EPA identified which was large enough

to hold the number of people EPA

expected to attend the hearing. A large

number of people attended the hearing

and provided comments. It was

unfortunate that the location was not

closer to the Campo Reservation.

However, EPA also provided an

extended public comment period, from

May 11 to August 1, 1994 for submittal

of written comments.

One commenter felt that the Federal

Register notice should have been mailed

to people and organizations who

submitted previous written comment or

made statements at previous U.S. EPA

public hearings on the proposed

landfill. First, EPA would like to clarify

that extensive efforts were made to

make all relevant materials available to

all interested parties. EPA had not held

previous hearings on the proposed

landfill. (EPA has a direct permitting

role for the proposed landfill under the

Clean Air Act. However, the Clean Air

Act draft permit hearing was held after

the hearing on tentative program

approval. Both hearings were held in

the same location.)

Second, in accordance with RCRA

section 7004(b)(1), EPA published the

tentative determinations in the Federal

Register and provided an opportunity

for public comment. A public hearing

may be held at the discretion of the EPA

Regional Administrator, in which case

EPA must provide public notice of the

hearing. EPA conducted a public

hearing after receiving public interest in

holding a hearing. EPA sent the entire

Federal Register notice out to persons

who requested the notice. EPA also

published notice of the tentative

decision and the hearing in local

newspapers. In addition, EPA

developed a fact sheet on the tentative

decision which was sent to

approximately 150 people prior to the

public hearing. Persons receiving the

fact sheet were encouraged to contact

EPA to discuss questions and request

more information such as the Federal

Register notice. EPA also placed

extensive information on the tentative

decision, including the Campo Band’s

application for program approval, in

two local repositories (the CEPA office

and the public library in the town of

Campo) and at the EPA Region 9 office

in San Francisco. Information about the

locations of the application and other

material was noted in the fact sheet that

was distributed.

One commenter also suggested that

EPA’s announcement failed to indicate

which portions of the Campo Band’s

program were ‘‘as stringent’’ as the

Federal regulations and which portions

were not. The underlying premise of

EPA’s tentative determination of

adequacy was that all portions of the

Campo Band’s program were as

stringent as the Federal regulations.

This was indicated in the fact sheets. A

detailed analysis of how the Campo

Band’s program compared with the

Federal requirements was available in

the Federal Register notice and the

information in the repositories.

One commenter was concerned that

many people in Mexico could not be at

the hearing and could not speak up.

EPA made extensive efforts to encourage

participation from Mexico. Several

speakers from Mexico were present at

the hearing and made comments. In

order to facilitate their participation,

EPA provided simultaneous translation,

so that hearing participants could

understand the comments made in

either Spanish or English, and so that

the court reporter, who recorded all

comments at the hearing, could record

those made in Spanish for EPA’s

response.

O. The Campo Band’s Application for

Program Approval

Two commenters raised concerns

about the completeness of the Campo

Band’s solid waste permitting program

application. This concern is related to

two issues discussed in the tentative

determination, 59 FR 24422, 24426–27

(May 11, 1994).

First, as EPA explained in the

tentative determination, specified

portions of the Campo Band’s thenexisting codes and regulations were not

adequate to assure compliance with the

federal regulations. However, at the time

of the tentative determination, the

Campo Band had submitted draft

revisions to those portions of its codes

and regulations. Those draft revisions—

Addendum I to the application—were

included in the information made

available to the public during the public

comment period. EPA explained in the

tentative determination that it had

reviewed these draft revisions and that

they were adequate to assure

compliance with the federal regulations.

EPA went on to explain that, if the draft

revisions were fully adopted before

EPA’s final determination, the Agency

would approve the Campo Band’s entire

solid waste permitting program—

including the revised portions. This

gave the public an opportunity to

comment on whether EPA should

approve the program if the draft

revisions replaced the then-existing

provisions. On June 13, 1994 the Campo

Band submitted the final, fully adopted

regulations as Addendum II to its

application. These final regulations

were also made available to the public

during the public comment period. The

final regulations are identical to the

regulations as modified by the draft

revisions.

Second, several of the Campo Band’s

solid waste regulations in effect at the

time the Campo Band submitted its

application had been adopted as

emergency regulations—without public

participation—and would, pursuant to

Campo law, expire unless affirmed as

final regulations. In its tentative

determination, EPA explained that these

regulations must be affirmed, unaltered,

prior to EPA’s final determination in

order for EPA to approve those portions

of the Campo Band’s solid waste

permitting program. The Campo Band

submitted the affirmed, permanent

regulations to EPA on June 13, 1994.

These final regulations were made

available to the public during the public

comment period. The final regulations

are identical to the emergency

regulations.

Therefore, EPA’s final determination

is based on provisions of the Campo

Band’s laws and regulations which were

made available to the public during the

public comment period.
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices 21209

One commenter suggested that EPA’s

comments on the Campo Band’s draft

application revealed a number of

serious inadequacies in the Campo

Band’s regulations. EPA did make a

number of substantial comments on the

Campo Band’s draft application.

However, in response to EPA’s

comments, the Campo Band either made

necessary changes to its program or the

application, or explained to EPA’s

satisfaction how the existing program

met the federal standards. EPA worked

very closely with CEPA for many

months in reviewing and revising its

regulations. The review of regulatory

programs is a lengthy and detailed

process. The process is particularly

complicated when EPA reviews an

existing and complex regulatory

program like the Campo Band’s. EPA’s

comments on the Campo Band’s draft

application were the first in a series of

comments on the Campo Band’s

program and requested clarifications of

many aspects of the Campo Band’s

program.

P. Hazardous Waste Issues

A number of commenters expressed

concern over who will ensure that

hazardous wastes are not taken at the

proposed landfill because the state has

no enforcement power on an Indian

reservation. One commenter stated that

there would not be a hazardous waste

problem at the landfill because people

know what they can and cannot put in

their trash and loads are checked for

hazardous waste.

Federal requirements under 40 CFR

258.20 prohibit receipt of hazardous

waste at municipal solid waste landfills.

Owners and operators of landfills must

comply with these requirements. The

Campo Band’s regulations require

procedures which are as stringent as the

federal standards. CEPA is responsible

for ensuring that landfills comply with

these standards.

Several commenters asked what has

been done about allegations of possible

illegal disposal of hazardous waste at a

car crushing operation on the Campo

Reservation. Under the RCRA hazardous

waste program, EPA has direct

permitting and enforcement authority.

Because there was a possible hazardous

waste violation, EPA inspected the site.

EPA representatives visited the site on

March 1, 1994. A site investigation

report was completed in August, 1994.

The investigation found no hazardous

waste at the site and no evidence of past

disposal of hazardous waste.

Q. EPA’s Program Review Procedures

The San Diego Astronomy

Association (SDAA) submitted

comments concerning the potential

impacts of the proposed landfill on the

SDAA’s observatory, which the SDAA

stated is located approximately 1 mile

downwind from the proposed landfill.

The SDAA asserted that its concerns

should be given special consideration,

over that of residential and agricultural

interests, because it is a pre-existing,

government-recognized, public,

educational and scientific organization.

As stated earlier, today’s decision is on

program approval for the Campo Band,

not on permitting the proposed landfill.

Therefore, the specific comments on the

potential impacts from the proposed

landfill are not relevant to this

determination.

The SDAA also asserted that EPA has

stated no precedents for granting

program approval under similar

circumstances, and that therefore it

would be ‘‘irresponsible,

unprecedented, litigious, and a failure

of the public trust’’ to approve the

Campo Band’s program. EPA

understands the term ‘‘similar

circumstances’’ in the comment to mean

approval of a program under which a

landfill could be operated within 1 mile

of a facility for observing astronomical

phenomena and educating the public.

However, EPA is aware of no law

preventing the siting or operation of a

landfill near such facilities. Therefore, a

landfill may be constructed and

operated within 1 mile of SDAA’s

observatory regardless of whether EPA

approves the Campo Band’s solid waste

permitting program.

If the term ‘‘similar circumstances’’ in

the comment was intended to mean the

physical location of the landfill which

has been proposed for the Campo

Reservation, EPA’s responses to

concerns about the landfill itself are

addressed under Category K above. If

the intent was to refer to approval of

tribal solid waste programs, EPA’s

authority to approve tribal solid waste

programs is discussed above under

Category A. EPA therefore believes that

the precedential effect of approving the

Campo Band’s program will be to ensure

that solid waste management in Indian

country is properly regulated to protect

human health and the environment.

One commenter expressed concern

that EPA’s decision-making procedure

was not sufficiently conservative in

placing the burden of substantiation on

the permitting requester. Congress

established the standard to be met by

state and tribal solid waste programs in

RCRA section 4005(c)(1)(B)—they must

demonstrate that landfills within their

jurisdictions will comply with the

Federal Criteria in 40 CFR part 258. As

EPA explained in its tentative approval

of the Campo Band’s program, EPA

interprets this standard to require, at a

minimum, demonstrating that the state

or tribal program’s technical

requirements are as stringent as the

federal regulations, that the state or tribe

will issue permits to all new and

existing landfills, that the requirements

and permits are enforceable, and that

public participation in permitting and

enforcement actions is provided. EPA

believes that the Campo Band’s program

meets these standards.

EPA’s procedure in reviewing

applications for approval of solid waste

permitting programs is very lengthy and

detailed. The state or tribe seeking a

program approval determination must

submit an application that consists of a

letter from the program director

requesting program approval, a

description of the program, copies of all

applicable statutes, regulations and

guidance, and a legal certification that

the laws are fully effective and

enforceable. The burden of

demonstrating the adequacy of the

program is on the applicant. In the case

of the Campo Band’s application, EPA

worked closely with CEPA, carefully

evaluating each provision of the Tribe’s

program and in many cases requiring

substantial changes to the program

before making the tentative

determination that the program assures

compliance with the federal regulations.

The SDAA requested that EPA

provide the professional qualifications

of the EPA staff and management

involved in making the determination,

in order that the SDAA can assess their

professional maturity and wisdom and

determine what level of astronomy

background should be provided to

defend the SDAA opposition to the

determination. EPA believes that the

question of whether the Agency has

properly approved a state or tribal solid

waste program should be addressed

through discussion of the standards and

procedures the Agency has applied. The

standard and the procedures employed

by EPA in evaluating the Campo Band’s

solid waste program, and the basis for

EPA’s determination that the Campo

Band’s program is adequate, have been

fully set forth in the tentative

determination, published at 59 FR

24422 (May 11, 1994), and in this

response to comments and final

determination.

IV. Decision

In the tentative determination, EPA

proposed to approve specified parts of

the Campo Band’s program for which

existing tribal law was adequate to

ensure compliance with the Federal

Criteria. At that time EPA also proposed
21210 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices

to approve all of the Campo Band’s

program if draft regulatory requirements

submitted to EPA with its April 18,

1994 application addendum were

adopted before EPA’s final

determination. In addition, EPA noted

that before EPA could grant partial or

full program approval, the Campo Band

had to reaffirm the February 13, 1994

promulgation of emergency regulations

submitted with its final application. On

June 13, 1994, EPA received the final,

adopted revisions to the Campo Band’s

MSWLF permit program. In addition, as

explained under Category I above, EPA

received amendments to the Tribal

Environmental Policy Act of 1990 made

in response to comments received by

EPA during the public comment period.

After reviewing these revisions, and

after thorough consideration of the

public comments, I conclude that the

Campo Band’s application for adequacy

determination meets all of the statutory

and regulatory requirements established

by RCRA. Accordingly, the Campo Band

is granted a determination of adequacy

for all portions of its municipal solid

waste permit program.

Section 4005(a) of RCRA provides that

citizens may use the citizen suit

provisions of section 7002 of RCRA to

enforce the Federal MSWLF Criteria in

40 CFR part 258 independent of any

state/tribal enforcement program. As

EPA explained in the preamble to the

final MSWLF Criteria, EPA expects that

any owner or operator complying with

provisions in a state/tribal program

approved by EPA should be considered

to be in compliance with the Federal

Criteria. See 56 FR 50978, 50995

(October 9, 1991).

Today’s action takes effect on the date

of publication. EPA has good cause

under section 553(d) of the

Administrative Procedure Act, 5 U.S.C.

553(d), to put this action into effect less

than 30 days after publication in the

Federal Register. All of the

requirements and obligations in the

Tribe’s program are already in effect as

a matter of tribal law. Today’s action is

a determination that these requirements

ensure compliance with the Federal

Criteria in 40 CFR part 258 and does not

impose any new requirements with

which the regulated community must

begin to comply, nor do the Campo

Band’s requirements become

enforceable by EPA as federal law.

Consequently, it is not necessary to give

notice prior to making its approval

effective.

Compliance With Executive Order

12866

The Office of Management and Budget

has exempted this notice from the

requirements of section 6 of Executive

Order 12866.

Certification Under the Regulatory

Flexibility Act

Pursuant to the provisions of 5 U.S.C.

605(b), I hereby certify that approval of

the tribal MSWLF permit program will

not have a significant economic impact

on a substantial number of small

entities. It does not impose any new

burdens on small entities. This notice,

therefore, does not require a regulatory

flexibility analysis.

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 costeffective 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. The Campo Band’s

request for approval of a MSWLF

program is voluntary and imposes no

Federal intergovernmental mandate

within the meaning of the Act. Rather,

by having its MSWLF program

approved, the Tribe will be able to

implement the RCRA Subtitle D

program over landfills within its

jurisdiction, and to exercise the

flexibility allowed in the rules to

conform landfill requirements to sitespecific conditions.

In any event, the Agency does not

believe that approval of the Tribe’s

program would result in estimated costs

of $100 million or more to State, local,

and tribal governments in the aggregate,

or to the private sector, in any one year;

this is due to the small size of the

Tribe’s program, and the additional

flexibility that the Tribe can exercise.

Thus, today’s notice is not subject to the

written statement requirements in

sections 202 and 205 of the Act.

As to section 203 of the Act, the

approval of the Tribal program will not

significantly or uniquely affect small

governments other than the applicant,

the Campo Band. As to the applicant,

the Tribe has received notice of the

requirements of an approved program,

has had meaningful and timely input

into the development of the program

requirements, and is fully informed as

to compliance with the approved

program. Thus, any applicable

requirements of section 203 of the Act

have been satisfied.

Authority: This notice is issued under the

authority of sections 2002, 4005 and 4010(c)

of the Solid Waste Disposal Act as amended;

42 U.S.C. 6912, 6945, 6949a(c).

Dated: April 12, 1995.

Felicia Marcus

Regional Administrator.

[FR Doc. 95–10508 Filed 4–28–95; 8:45 am]

BILLING CODE 6560–50–P

[FRL–5200–2]

Tennessee Gas and Pipeline; Notice of

Proposed Settlement

AGENCY: Environmental Protection

Agency.

ACTION: Notice of proposed settlement.

SUMMARY: Under Section 122(h) of the

Comprehensive Environmental

Response, Compensation and Liability

Act (CERCLA), the United States

Protection Agency (EPA) has offered to

potentially responsible parties an

Administrative Order on Consent to

settle claims for past and future removal

actions at the Tennessee Gas and

Pipeline Site along the Gulf Coast of

Texas, Louisiana and Mississippi and

extending along three routes to markets

in the midwestern and northeastern

United States. EPA will consider public

comments on the proposed settlement

for thirty (30) days. EPA may withdraw

from or modify the Agreement should

such comments disclose facts or

considerations which indicate the

proposed settlement is inappropriate,

improper, or inadequate. Copies of the

proposed settlement are available from:

Ms. Paula V. Batchelor, Waste