30472 Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 35, 270 and 271

[EPA/OSW–FRL–5509–8]

RIN 2050–AD07

Authorization of Indian Tribe’s

Hazardous Waste Programs Under

RCRA Subtitle C

AGENCY: Environmental Protection

Agency.

ACTION: Proposed rule.

SUMMARY: Today’s proposed rule will

further the Policy for the Administration

of Environmental Programs on Indian

Reservations (Nov. 8, 1984) (‘‘EPA’s

Indian Policy’’) by clarifying the

eligibility of Tribal governments to

obtain authorization from EPA to

implement a Subtitle C hazardous waste

program in lieu of EPA under RCRA

section 3006, and to obtain Federal

grants to support the development and

implementation of such a program

under RCRA section 3011. This

proposal identifies the standards and

procedures that would govern the

submission and review of Indian Tribes’

authorization applications. It also

discusses the circumstances under

which Tribes could be approved to

operate a partial Subtitle C hazardous

waste program.

DATES: Comments on this proposed rule

must be submitted on or before August

13, 1996.

ADDRESSES: Commenters must send an

original and two copies of their

comments referencing docket number x96-xxxx-xxxxx to: (1) If using regular US

Postal Service mail: RCRA Docket

Information Center, Office of Solid

Waste (5305W), U.S. Environmental

Protection Agency Headquarters (EPA,

HQ), 401 M Street, SW, Washington, DC

20460 or (2) if using special delivery,

such as overnight express service: RCRA

Docket Information Center (RIC), Crystal

Gateway One, 1235 Jefferson Davis

Highway, First Floor, Arlington, VA

22202. Comments may also be

submitted electronically through the

Internet to: RCRA–

Docket@epamail.epa.gov. These

comments should be identified by the

docket number x-96-xxxx-xxxxx, and

submitted as an ASCII file to avoid the

use of special characters and

encryptions.

Please do not submit any Confidential

Business Information (CBI)

electronically. An original and two

copies of CBI must be submitted under

separate cover to: RCRA CBI Document

Control Officer, Office of Solid Waste

(5305W), U.S. EPA, 401 M Street, SW,

Washington, DC 20460.

Public comments and supporting

materials are available for viewing in

the RCRA Information Center (RIC)

located at Crystal Gateway One, 1235

Jefferson Davis Highway, First Floor,

Arlington, VA. The RIC is open from 9

a.m. to 4 p.m., Monday through Friday,

excluding Federal holidays. To review

docket materials, please make an

appointment by calling (703) 603–9230.

The public may copy a maximum of 100

pages from any regulatory docket at no

charge. Additional copies will cost $.15/

page.

FOR FURTHER INFORMATION CONTACT: For

general information, contact the RCRA

Hotline, Office of Solid Waste, U.S.

Environmental Protection Agency, 401

M Street, S.W., Washington, D.C. 20460,

(800) 424–9346; TDD (800) 553–7672 for

the hearing impaired; in the

Washington, D.C. metro area, the

telephone number is (703) 412–9810,

TDD 703–412–3323.

For more detailed information,

contact Felicia Wright, Office of Solid

Waste (5303W), U.S. Environmental

Protection Agency, 401 M Street, S.W.,

Washington, D.C. 20460; telephone

(703) 308–8634.

SUPPLEMENTARY INFORMATION: In this

document, EPA is proposing

amendments to the RCRA Subtitle C

regulatory definitions, authorization

standards, and authorization

procedures, which are codified in

subpart A of 40 CFR part 270 and in

subpart A of 40 CFR part 271.

The index is available on the Internet.

Please follow these instructions to

access the information electronically:

Gopher: gopher.epa.gov WWW: http://

www.epa.gov

Dial-up: (919) 558–0335.

This report can be accessed from the

main EPA Gopher menu in the

directory: EPA Offices and Regions/

Office of Solid Waste and Emergency

Response (OSWER)/Office of Solid

Waste (RCRA)/Hazardous Waste/........./

..........

FTP: ftp.epa.gov

Login: anonymous

Password: Your Internet Address

Files are located in /pub/gopher/

OSWRCRA

The official record for this action will

be kept in paper form. Accordingly, EPA

will transfer all comments received

electronically into paper form and place

them in the official record, with all of

the comments received in writing. The

official record is the paper record

maintained at the address in

‘‘ADDRESSES’’ at the beginning of this

document.

EPA’s responses to comments,

whether written or electronic, will be

printed in the Federal Register, or in a

‘‘response to comments document’’

placed in the official record for this

rulemaking. EPA will not immediately

reply to commenters electronically other

than to clarify electronic comments that

may be garbled during transmission or

conversion to paper form.

I. Overview of This Proposed

Rulemaking

This proposal further implements the

Agency’s 1984 Indian Policy by

amending certain definitions, standards,

and procedures within the regulations

promulgated pursuant to RCRA Subtitle

C (42 USC 6921—6939e) that govern

EPA’s authorization of States’ hazardous

waste programs. The overall effect of

these amendments would be to clarify

that Indian Tribes may obtain full or

partial authorization from EPA to

operate Tribal hazardous waste

management programs in lieu of EPA’s

Federal regulatory program, and to

clarify that authorized Indian Tribes, in

the same manner as authorized States,

may obtain RCRA section 3011 grant

funds to aid the development and

implementation of their Subtitle C

management programs.

This notice proposes to add

definitions of ‘‘Indian Tribes’’ and

‘‘Indian Country’’ to the Subtitle C

program definitions codified at 40 CFR

270.2. Moreover, the existing definition

of ‘‘States’’ in section 270.2 would be

amended to extend to ‘‘Indian Tribes’’

the ability to obtain program

authorization from EPA under RCRA

section 3006, and financial assistance

from EPA under RCRA section 3011.

EPA proposes to amend several

sections of subpart A of 40 CFR part

271, which contains the standards and

procedures for EPA’s authorization of

‘‘State’’ hazardous waste programs. A

new subsection in (§ 271.1(k)) would be

added to clarify that the substantive

standards and procedures that apply to

States’ programs and authorization

submissions apply to Tribal programs

and submissions, unless there is a

specific provision that would address

Tribal programs differently.

The specific procedures which EPA

believes are appropriate for Tribal

program authorizations and submissions

would be set out in a new § 271.27.

Proposed § 271.27(a) identifies several

minor changes to the authorization

application documents and agreements

(i.e., Governor’s letter, Program

Description, Memorandum of

Agreement, and Attorney General’s

Statement) which EPA requires States to

submit in support of their applications
Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Proposed Rules 30473

for program authorization. The

proposed changes arise from a

recognition of tribal sovereignty and

differences in the structure of Tribal

governments, and from circumstances

unique to Indian Tribes.

Proposed § 271.27(b) establishes

criteria under which Indian Tribes may

be authorized to operate a partial RCRA

hazardous waste program. This

authority enables a Tribe, for example,

to obtain authorization for a program

that regulates only generators and

transporters of hazardous waste, with

EPA retaining responsibility for

regulating and enforcing requirements

for any hazardous waste treatment,

storage, and disposal facilities. Under

this proposal, only Indian Tribes would

be eligible for partial program

authorization. States will continue to be

precluded from seeking and obtaining

partial authorization. Other provisions

in § 271.27 address the core program

requirements of a partial program, the

sharing of authority with EPA, and other

requirements that follow from the

inclusion of partial program authority in

this proposed rule.

II. Authority

Today’s rule is being proposed under

the authority of sections 2002, 3006, and

3011 of the Resource Conservation and

Recovery Act of 1976 (RCRA or the Act),

as amended. Section 2002(a) authorizes

the Administrator to prescribe such

regulations as are necessary to carry out

functions under Subtitle C of RCRA.

Section 3006 of RCRA allows EPA to

authorize State hazardous waste

programs to operate in the State in lieu

of the Federal hazardous waste program

subject to the authority retained by EPA

in accordance with the Hazardous and

Solid Waste Amendments of 1984

(HSWA). Section 3011 of RCRA

authorizes EPA to make grants to the

States for the purpose of assisting the

States in the development and

implementation of authorized State

hazardous waste programs.

III. Background

A. Current Subtitle C Authorization

Program

EPA has primary responsibility for

implementing and enforcing the RCRA

Subtitle C hazardous waste program.

Federal law, including the issuance and

enforcement of permits for hazardous

waste facilities, will be implemented by

the Federal EPA until EPA authorizes a

State for a hazardous waste program, at

which point primary authority rests

with the State.

The statute and regulations currently

support two types of State program

authorization. The first type, ‘‘interim

authorization,’’ is a temporary

authorization which is granted if EPA

determines that the State program is

‘‘substantially equivalent’’ to the

Federal program (section 3006(c), 42

U.S.C. 6926(c)). Interim authorization is

currently available only for

requirements imposed pursuant to the

Hazardous and Solid Waste

Amendments (HSWA) of 1984. HSWA

Interim Authorization will expire in

January, 2003 unless extended by rule.

The second type of authorization is

‘‘final’’ (permanent) authorization. Final

authorization may be granted by EPA if

the Agency determines, among other

things, that the State program: (1) Is

equivalent to the Federal program; (2) is

consistent with the Federal program and

other authorized State programs; and (3)

provides for adequate enforcement

(Section 3006(b), 42 U.S.C. 6926(b))

7004, 3006(f). States, and now under

this proposal, Tribes, need not have

obtained interim authorization in order

to qualify for final authorization.

To date, 46 States, Guam and the

District of Columbia have been

authorized for the ‘‘base’’ RCRA Subtitle

C program (i.e., the program in place

before the enactment of HSWA in 1984).

In these States, the authorized State

programs operate in lieu of the

corresponding Federal program and, if

Federal enforcement is necessary, EPA

must enforce the authorized State

program requirements.

B. EPA’s 1984 Indian Policy

Today, EPA is proposing to extend to

Indian Tribes the opportunity to apply

for and receive hazardous waste

program authorization similar to that

currently available to States. Providing

Tribes with this opportunity is

consistent with the EPA’s Indian Policy.

This policy, formally adopted in 1984,

and reaffirmed on March 14, 1994 by

EPA Administrator Carol M. Browner,

‘‘* * * views Tribal Governments as the

appropriate non-Federal parties for

making decisions and carrying out

program responsibilities affecting Indian

reservations, their environments, and

the health and welfare of the reservation

populace. Just as EPA’s deliberations

and activities have traditionally

involved the interests and/or

participation of State governments, EPA

will look directly to Tribal Governments

to play this lead role for matters

affecting reservation environments.’’

A major goal of EPA’s Indian Policy

is to eliminate all statutory and

regulatory barriers to Tribal

administration of Federal environmental

programs. Today’s proposal represents

another step in the Agency’s continuing

commitment towards achieving this

goal. However, EPA recognizes, in the

spirit of Indian self-determination and

the government-to-government

relationship, that not all Tribes will

choose to apply for and receive

hazardous waste program authorization

at this time. Regardless of the choice

made, the Agency remains committed to

providing technical assistance and

training when possible to Tribal entities

as they work to resolve their hazardous

waste management concerns.

C. Legal Basis for Subtitle C

Authorization of Indian Tribes

EPA believes that adequate authority

exists under the Act to allow Tribes to

seek hazardous waste program

authorization. EPA’s interpretation of

RCRA is governed by the principles of

Chevron, USA v. NRDC, 467 U.S. 837

(1984). Where Congress has not

explicitly stated its intent in adopting a

statutory provision, the Agency charged

with implementing that statute may

adopt any interpretation which, in the

Agency’s expert judgment, is reasonable

in light of the goals and purposes of the

statute as a whole. Id. at 844.

Interpreting RCRA to allow Tribes to

apply for hazardous waste program

authorization satisfies the Chevron test.

RCRA does not explicitly define a role

for Tribes under section 3006 and

reflects an undeniable ambiguity in

Congressional intent. Indeed, the only

mention of Indian Tribes anywhere in

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

the ‘‘Definitions’’ of key terms in RCRA.

Section 1004(13) defines the term

‘‘municipality’’ to mean:

A city, town, borough, county, parish,

district or other public body created by or

pursuant to State law, with responsibility for

the planning or administration of solid waste

management, or any Indian tribe or

authorized tribal organization or Alaska

Native village or organization[.]

The term ‘‘municipality’’, in turn, is

used in section 4008(a)(2) of RCRA with

specific reference to the availability of

certain Federal funds and technical

assistance for hazardous and solid waste

planning and management activities by

municipalities. Section 4008(a)(2)

authorizes EPA to provide financial and

technical assistance to municipalities on

hazardous and solid waste management.

Although Congress apparently intended

to make explicit that Indian Tribes

could receive funds and assistance

when available in the same manner as

municipal governments (by the

inclusion of Tribes in section 1004(13)),

Congress did not explicitly recognize

any other role for Tribes under other

provisions. There is no accompanying

legislative history which explains why
30474 Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Proposed Rules

1See, e.g., Solid Waste Disposal Act Amendments

of 1979, 125 Cong. Rec. 13,241, 13,252 (1979) (‘‘one

of the real advantages of State assumption of these

programs envisioned by Congress in the Act, over

a more uniform Federal program, is that States are

better able to tailor their programs to meet local

circumstances * * *’’).

2EPA has approved one tribal program under

RCRA—the Campo Band of Mission Indian’s

municipal solid waste landfill permit program (60

FR 21191 (May 1, 1995)). This action has been

challenged in the United States Court of Appeals for

the D.C. Circuit. See, Backcountry Against Dumps

v. E.P.A., No. 95–1343 (D.C. Cir. Filed July 6, 1995).

3Congress ratified EPA’s regulation in 1977 by

explicitly authorizing Tribes to make PSD

redesignations; the 1990 Amendments to the Act

authorize EPA to allow Tribes to apply for approval

to implement any programs EPA deems

appropriate.

Indian Tribes were included in section

1004(13) and nowhere else.

EPA does not believe that Congress,

by including Indian Tribes in section

1004(13), intended to prohibit EPA from

allowing Tribes to apply for hazardous

waste program authorization under

Subtitle C. First of all, it is clear that

Indian Tribes are not ‘‘municipalities’’

in the traditional sense. Indian Tribes

are not ‘‘public bodies created by or

pursuant to State law.’’ Indeed, Indian

Tribes are not subject to State law

except in very limited circumstances.

See, California v. Cabazon Band of

Mission Indians, 480 U.S. 202 (1987).

Indian Tribes are sovereign

governments. See Worcester v. Georgia,

31 U.S. (10 Pet.) 515 (1832); and United

States v. Mazurie, 419 U.S. 544, 557–58

(1975). There is no indication in the

legislative history that Congress

intended to abrogate any sovereign

Tribal authority by defining them as

‘‘municipalities’’ under RCRA; i.e., that

Congress intended section 1004(13) to

subject Indian Tribes to State law for

RCRA purposes. Moreover, it is a wellestablished principle of statutory

construction that Federal statutes which

are ambiguous as to whether they

abridge Tribal powers of selfgovernment must be construed narrowly

in favor of retaining Tribal rights. F.

Cohen, Handbook of Federal Indian

Law, 224 (1982); See, e.g., Ramah

Navajo School Board v. Bureau of

Revenue, 458 U.S. 832, 846 (1982).

EPA believes that inclusion of Indian

Tribes in section 1004(13) was a

definitional expedient, to avoid having

to include the phrase ‘‘and Indian tribes

or tribal organizations or Alaska Native

villages or Organizations’’ wherever the

term ‘‘municipality’’ appeared, not to

change the sovereign status of Tribes for

RCRA purposes. In particular, the

references in section 4008(a)(2) to state

‘‘assistance’’ to municipalities does not

suggest that Congress intended Indian

Tribes to be subject to State

governmental control. Furthermore,

given the limited number of times the

term ‘‘municipality’’ appears in RCRA,

it does not appear that Congress was

attempting to define a role for Tribes for

all potential statutory purposes.

The ambiguity in RCRA regarding

Indian Tribes also is evident in the 1984

RCRA amendments. In these

amendments, while silent on the role for

Tribes in implementing any RCRA

programs, Congress expressed a strong

preference for a State lead for

implementing and ensuring compliance

with the Federal Subtitle D revised

criteria (as it had earlier in providing for

State authorization in RCRA Subtitle

C).1 Yet, the legislative history of the

1984 amendments does not suggest that

Congress intended to approve States to

implement such programs in Indian

country or that Congress considered the

legal principle that States generally are

precluded from such implementation.

Similarly, RCRA Subtitle C does not

contain an explicit delegation of

authority to States to implement

hazardous waste programs in Indian

country. Washington Dept. of Ecology v.

EPA, 752 F.2d 1465, 1469 (9th Cir.

1985) (RCRA Subtitle C does not

constitute an explicit delegation of

authority to States to implement

hazardous waste programs on Indian

lands); accord, Nance v. EPA, 745 F.2d

701 (9th Cir. 1981). Thus, while

Congress has otherwise put States in a

primary role for both Subtitle C

hazardous waste program

implementation and Subtitle D permit

programs, on Indian lands, it failed to

define how Tribes participate where

States lack authority. EPA believes it

necessary to harmonize the conflicts

and resolve the ambiguities created by

these provisions.

Failure to authorize Tribal hazardous

waste programs would deny Tribes the

option currently available to States to

administer their programs ‘‘in lieu of the

Federal program.’’ With this proposal,

however, Subtitle C regulated activities

and facilities in Indian country would

be under the jurisdiction of the closest

sovereign with permitting and

enforcement authority, the Tribe, rather

than the Federal government.2

EPA has worked to revise other

environmental statutes (e.g., the Clean

Water Act) to define explicitly the role

for Tribes under these programs. EPA

also has stepped in on at least two

occasions to allow Tribes to seek

program approval despite the lack of an

explicit Congressional mandate. Most

recently, EPA recognized Indian Tribes

as the appropriate authority under the

Emergency Planning and Community

Right-to-Know Act (EPCRA), despite

silence on the Tribal role under EPCRA.

55 FR 30632 (July 26, 1990). EPA

reasoned that since EPCRA has no

federal role to backup State planning

activities, failure to recognize Tribes as

the authority under EPCRA would leave

gaps in emergency planning in Indian

country. 54 FR 13000–01 (March 29,

1989).

EPA filled a similar statutory gap

much earlier as well, even before

development of its formal Indian Policy.

In 1974, EPA promulgated regulations

which authorized Indian Tribes to

redesignate the level of air quality

applicable to Indian reservations under

the Prevention of Significant

Deterioration (PSD) program of the

Clean Air Act in the same manner that

States could redesignate for other lands.

See Nance v. EPA (upholding

regulations). EPA promulgated this

regulation despite the fact that the Clean

Air Act at that time made no reference

whatsoever to Indian Tribes or their

status under the Act.3

One Court already has recognized the

reasonableness of EPA’s actions in

filling such regulatory gaps in Indian

reservations. In Nance, the U.S. Court of

Appeals for the Ninth Circuit affirmed

EPA’s PSD redesignation regulations

described in the previous paragraph.

The Court found that EPA could

reasonably interpret the Clean Air Act to

allow for Tribal redesignation, rather

than allowing the States to exercise that

authority or exempting Indian

reservations from the redesignation

process. 745 F.2d 713. The Court noted

that EPA’s rule was reasonable in light

of the general existence of Tribal

sovereignty over activities in Indian

reservations. Id. at 714.

Today’s proposal is analogous to the

rule upheld in Nance. EPA is proposing

to fill a statutory gap regarding the role

of Tribes in the implementation of

Subtitle C in Indian country. As with

the redesignation program, authorizing

Tribal hazardous waste programs

ensures that the Federal government is

not the entity exercising authority that

Congress intended to be exercised at a

local level. Furthermore, the case law

supporting EPA’s interpretation is even

stronger today than at the time of the

Nance decision. First, the Supreme

Court reaffirmed EPA’s authority to

develop reasonable controlling

interpretations of environmental

statutes. Chevron, supra. Second, the

Supreme Court emphasized since Nance

that Indian Tribes may regulate

activities in Indian country, including

those of non-Indians on fee lands where

the conduct directly threatens the health
Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Proposed Rules 30475

and safety of the Tribe or its members.

Montana v. United States, 450 U.S. 544,

565 (1981).

Extending the ability to receive

program authorization to Tribes is

consistent with the general principles of

Federal Indian law and the Agency’s

Indian Policy which states that

environmental programs (e.g., RCRA

Subtitle C) in Indian country will be

implemented to the maximum extent by

Tribal governments. Thus, as in Nance,

EPA believes that allowing Tribes to

apply for hazardous waste authorization

reflects the sovereign authority of Tribes

under Federal law.

A Tribe submitting an application to

receive authorization for any or all parts

of the RCRA Subtitle C hazardous waste

program will be subject to the standards

of this rule, when finalized. A Tribe

which has received authorization prior

to promulgation of the final rule will not

lose its authorization status. However, if

there are subsequent changes in either

the Federal or Tribal program

(including, for example, the acquisition

of significant amounts of nonreservation land by the Tribe), such a

Tribe may be required to revise its

authorized program in accordance with

the standards set forth in 40 CFR part

271.

IV. Detailed Discussion of the Proposed

Rule

A. Overview

This proposed rule announces several

changes to the regulatory definitions (40

CFR 270.2) that define the scope of the

Subtitle C authorization program.

Today’s proposal also specifies the

standards and procedures that EPA

would follow in approving, revising and

withdrawing authorization of Tribal

hazardous waste programs, as well as

the requirements that tribal programs

must meet to be authorized by the

Administrator under sections 3006(b) of

RCRA.

Generally, Tribes would have to meet

the same criteria as do the States.

Consequently, except where otherwise

expressly indicated, the

REQUIREMENTS FOR

AUTHORIZATION OF STATE

HAZARDOUS WASTE PROGRAMS (40

CFR part 271) are applicable to Tribes

as well. However, today’s proposal

recognizes the uniqueness of Tribes and

Indian country and revises several

existing requirements, and adds

appropriate requirements to certain

sections of the rule.

This part of the preamble discusses in

detail changes in the definitions which

EPA believes are necessary to clarify the

role of Indian Tribes in Subtitle C

authorization, and the other substantive

and procedural regulatory amendments

which are needed to make the 40 CFR

part 271 requirements more suited to

the unique circumstances of Tribes and

Indian Country.

B. Tribal Regulatory Authority

To have its hazardous waste program

authorized by EPA under today’s

proposal, a Tribe would have to have

adequate authority over the regulated

activities. The jurisdiction of Tribes

clearly extends ‘‘over both their

members and their territory.’’ United

States v. Mazurie, 419 U.S. 544, 557

(1975). However, Indian reservations

may include lands owned in fee by nonmembers. ‘‘Fee lands’’ are privately

owned by non-members and title to the

lands can be transferred without

restriction. The extent of Tribal

authority to regulate activities by nontribal members on fee lands has been

the subject of considerable discussion.

The Supreme Court has said that there

are two situations where a Tribe is able

to exercise civil jurisdiction over nonmember owned fee lands within Indian

reservations. The Court stated, in

Montana v. U.S., 450 U.S. 544, 566–67

(1981) (citations omitted):

To be sure, Indian tribes retain inherent

sovereign power to exercise some forms of

civil jurisdiction over non-Indians on their

reservations, even on non-Indian fee lands. A

tribe may regulate * * * the activities of

non-members who enter consensual

relationships with the tribe or its members,

through commercial dealing, contracts,

leases, or other arrangements * * *. A tribe

may also retain inherent power to exercise

civil authority over the conduct of nonIndians on fee lands within its reservation

when that conduct threatens or has some

direct effect on the political integrity, the

economic security, or the health or welfare of

the tribe.

The Court applied the latter part of

this test in Brendale v. Confederated

Tribes and Bands of the Yakima Indian

Nation, 492 U.S. 408 (1989). In that

case, both the State of Washington and

the Yakima Nation asserted authority to

zone non-Indian real estate

developments on two parcels within the

Yakima reservation, one in an area that

was primarily Tribal, the other in an

area where much of the land was owned

in fee by non-tribal members. Although

the Court analyzed the issues and the

appropriate interpretation of Montana at

considerable length, the nine members

split 4:2:3 in reaching the decision that

the Tribe should have exclusive zoning

authority over property in the Tribal

area and the State should have exclusive

zoning authority over non-Indian owned

property in the fee area.

Specifically, the Court did recognize

Tribal authority over activities that

would threaten the health and welfare

of the Tribe, 492 U.S. at 443–444

(Stevens, J., writing for the Court); id. at

449–450 (Blackmun, J. concurring).

Conversely, the Court found no Tribal

jurisdiction where the proposed

activities ‘‘would not threaten the

Tribe’s * * * health and welfare.’’ Id. at

432 (White, J., writing for the Court).

Given the lack of a majority rationale,

the primary significance of Brendale is

in its result, which was fully consistent

with Montana v. United States.

In evaluating whether a Tribe has

authority to regulate a particular activity

on land owned in fee by non-members

but located within a reservation, EPA

will examine the Tribe’s authority in

light of the evolving case law as

reflected in Montana and Brendale and

applicable Federal law. The extent of

such Tribal authority depends on the

effect of that activity on the Tribe. As

discussed above, in the absence of a

contrary statutory policy, a Tribe may

regulate the activities of non-Indians on

fee lands within its reservation when

those activities threaten or have a direct

effect on the political integrity, the

economic security, or the health or

welfare of the Tribe. Montana, 450 U.S.

at 565–66.

However, as discussed by EPA in the

context of the Clean Water Act, the

Supreme Court, in a number of postMontana cases, has explored several

criteria to assure that the impacts upon

Tribes of the activities of non-Indians on

fee land, under the Montana test, are

more than de minimis, although to date

the Court has not agreed, in a case on

point, on any one reformulation of the

test. See 56 FR 64876, 64878 (December

12, 1991). In response to this

uncertainty, the Agency will apply, as

an interim operating rule, a formulation

of the Montana standard that will

require a showing that the potential

impacts of regulated activities of nonmembers on the Tribe are serious and

substantial. See 56 FR at 64878. EPA

will thus require that a Tribe seeking

RCRA Subtitle C authorization

demonstrate jurisdiction, i.e., make a

showing that the potential impacts on

the Tribe from hazardous waste

management activities of non-members

on fee lands are serious and substantial.

The choice of an Agency operating

rule containing this standard is taken

solely as a matter of prudence in light

of judicial uncertainty and does not

reflect an Agency endorsement of this

standard per se. See 56 FR at 64878.

Moreover, as discussed below, the

Agency believes that the activities

regulated under the various
30476 Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Proposed Rules

4This special status has been reaffirmed by all

nine justices in the context of Fifth Amendment

takings law. See Keystone Bituminous Coal Ass’n v.

DeBenedictis, 480 U.S. 470, 491 n. 20 (1987); id. at

512 (Rehnquist, C.J., dissenting).

environmental statutes, including

RCRA, generally have potential direct

impacts on human health and welfare

that are serious and substantial. As a

result, the Agency believes that Tribes

usually will be able to meet the

Agency’s operating rule, and that use of

such a rule by the Agency should not

create an improper burden of proof on

Tribes.

Whether a Tribe has jurisdiction over

activities by non-members on fee lands

will be determined case-by-case, based

on factual findings. The determination

as to whether the required effect is

present in a particular case depends on

the circumstances and will likely vary

from Tribe to Tribe.

Nonetheless, the Agency also may

take into account the provisions of

environmental statutes and any

legislative findings that the effects of the

activity are serious and substantial in

making a generalized finding that Tribes

are likely to possess sufficient inherent

authority to control environmental

quality in Indian Country. See, e.g.,

Keystone Bituminous Coal Association

v. DeBenedictis, 480 U.S. 470, 476–77

and nn.6, 7 (1987). The Agency may

also rely on its special expertise and

practical experience regarding the

importance of hazardous waste to the

protection of Tribal environments and

the health and welfare of Tribal

members. As a result, the reservationspecific demonstration required of a

Tribe may, in many cases, be relatively

simple. EPA’s approach to determining

Tribal jurisdiction over the activities of

nonmembers on fee lands within

reservation boundaries was recently

upheld in Montana v. EPA, No. CV 95–

56–M-CCL, 1996 U.S. Dist. LEXIS 4753

(D. Mont. March 27, 1996), which

involved an EPA decision to approve a

Tribal application to administer the

water quality standards program under

section 303 of the Clean Water Act.

EPA believes that Congress

established a strong Federal interest in

effective management of hazardous

waste throughout the country by

enacting RCRA. For example, one of the

primary objectives of the statute is ‘‘to

promote the protection of health and the

environment and to conserve valuable

material and energy resources by * * *

assuring that hazardous waste

management practices are conducted in

a manner which protects human health

and the environment.’’ RCRA section

1003(a), 42 U.S.C. 6902(a). EPA also

notes that many of the environmental

problems caused by mismanagement of

hazardous waste (e.g., groundwater

contamination or the release of

hazardous constituents into the air) by

their nature present potential direct

impacts that are serious and substantial

in areas that are outside the place where

the hazardous waste management

originally occurred. In other words, any

environmental hazards that result from

hazardous waste management by nonmembers on fee lands within a

reservation are very likely to present

direct impacts to Tribal environments,

health and welfare that are serious and

substantial. EPA also believes that a

‘‘checkerboard’’ system of regulation,

whereby the Tribe and State split up

regulation of hazardous waste on Indian

lands, would exacerbate the difficulties

of assuring compliance with RCRA

requirements.

In light of the Agency’s statutory

responsibility for implementing the

environmental statutes, its

interpretations of the intent of Congress

regarding Tribal management of solid

waste within the reservation are entitled

to substantial deference. Washington

Dep’t of Ecology v. EPA, 752 F.2d 1465,

1469 (9th Cir. 1985); see generally

Chevron, USA, Inc. v. NRDC, 467 U.S.

837, 843–45 (1984).

The Agency also believes that the

effects on Tribal health and welfare

necessary to support Tribal regulation of

non-Indian activities on Indian lands

may be easier to establish in the context

of environmental regulation than with

regard to zoning, which was at issue in

Brendale. There is a significant

distinction between land use planning

and environmental regulation of

hazardous waste under RCRA. The

Supreme Court has explicitly

recognized such a distinction: ‘‘Land

use planning in essence chooses

particular uses for the land;

environmental regulation * * * does

not mandate particular uses of the land

but requires only that, however the land

is used, damage to the environment is

kept within prescribed limits.’’

California Coastal Comm’n v. Granite

Rock Co., 480 U.S. 572, 587 (1987). The

Court has relied on this distinction to

support a finding that States retain

authority to carry out environmental

regulation even in cases where their

ability to carry out general land use

regulation is preempted by federal law.

Id. at 587–89.

Further, management of hazardous

waste serves the purpose of protecting

public health and safety, which is a core

governmental function, whose exercise

is critical to self-government. The

special status of governmental actions to

protect public health and safety is well

established.4 By contrast, the power to

zone can be exercised to achieve

purposes which have little or no direct

nexus to public health and safety. See,

e.g., Brendale, 492 U.S. at 420 n.5

(White, J.). (listing broad range of

consequences of state zoning decision).

Moreover, hazardous waste may affect

ground water, which is mobile, freely

migrating from one local jurisdiction to

another, sometimes over large distances.

By contrast, zoning regulates the uses of

particular properties with impacts that

are much more likely to be contained

within a given local jurisdiction.

The process that the Agency will use

for Tribes to demonstrate their authority

over non-members on fee lands includes

a submission of a statement in the Tribal

Legal Certification (§ 271.27(a))

explaining the legal basis for the Tribe’s

regulatory authority. However, EPA will

also rely on its generalized findings

regarding the relationship of hazardous

waste management to Tribal health and

welfare. Thus, the Tribal submission

will need to make a showing of facts

that there are or may be activities

regulated under RCRA Subtitle C

engaged in by non-members on fee

lands within the territory for which the

Tribe is seeking authorization, and that

the Tribe or Tribal members could be

subject to exposure to hazardous waste

from such activities through, e.g.,

groundwater, soil, air, and/or direct

contact. The Tribe must explicitly assert

and demonstrate jurisdiction, i.e., make

a showing, that improper management

of hazardous waste by non-members on

fee lands could have direct impacts on

the health and welfare of the Tribe and

its members that are serious and

substantial. Once a Tribe meets this

initial burden, EPA will, in light of the

facts presented by the Tribe and the

generalized statutory and factual

findings regarding the importance of

proper hazardous waste management in

Indian country, presume that the Tribe

has made an adequate showing of

jurisdiction over non-member activities

on fee lands, unless an appropriate

governmental entity (e.g., an adjacent

Tribe or State) demonstrates a lack of

jurisdiction on the part of the Tribe.

The Agency recognizes that

jurisdictional disputes between Tribes

and States can be complex and difficult

and that it will, in some circumstances,

be forced to address such disputes by

attempting to work with the parties in

a mediative fashion. However, EPA’s

ultimate responsibility is protection of

human health and the environment. In

view of the mobility of environmental

problems, and the interdependence of
Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Proposed Rules 30477

various jurisdictions, it is imperative

that all affected sovereigns work

cooperatively for environmental

protection.

C. Implementing the Government-toGovernment Relationship With EPA

Under the Clean Water Act (CWA),

the Safe Drinking Water Act (SDWA),

the Comprehensive Environmental

Response, Compensation and Liability

Act (CERCLA) and the Clean Air Act

(CAA), Congress has specified certain

criteria by which EPA is to determine

whether a Tribe may be treated in the

same manner as a State. These criteria

generally require that the Tribe (1) be

recognized by the Secretary of the

Interior; (2) have an existing government

exercising substantial governmental

duties and powers; (3) have adequate

civil regulatory jurisdiction over the

subject matter and entities to be

regulated; and (4) be reasonably

expected to be capable of administering

the federal environmental program for

which it is seeking approval.

As discussed below, EPA is requiring

Tribes seeking grant funds under RCRA

3011 or program authorization under

RCRA 3006 to demonstrate in the

Program Description that they meet the

four criteria listed above. The process

EPA is proposing for Tribes to make this

showing, however, generally is not an

onerous one.

The Agency has simplified its process

for determining Tribal eligibility to

administer environmental programs

under several other environmental

statutes. See 59 FR 64339 (December 14,

1994) (‘‘Treatment as a State (TAS)

Simplification Rule’’). The proposed

process for determining eligibility for

RCRA Subtitle C programs parallels the

simplification rule. Generally, the fact

that a Tribe has met the recognition or

governmental function requirement

under another environmental statute

allowing for Tribal assumption of

environmental programs or grants (e.g.,

the Clean Water Act, Safe Drinking

Water Act, Clean Air Act) will establish

that it meets those requirements for

purposes of RCRA Subtitle C

authorization. To facilitate review of

tribal applications, EPA therefore

requests that the Tribe demonstrate, in

proposed 40 CFR 271.27(a)(3)(ii), that it

has been approved for ‘‘TAS’’ (under the

old ‘‘TAS’’ process) or been deemed

eligible to receive authorization (under

the simplified process) for any other

program.

If a Tribe has not received ‘‘TAS’’

approval or been deemed eligible to

receive authorization, the Tribe must

demonstrate, pursuant to proposed

§ 271.27(a)(3)(ii), that it meets the

recognition and governmental function

criteria described above. A discussion

on how to make these showings can be

found at 59 FR 64339 (December 14,

1994).

EPA believes, on the other hand, that

the Agency must make a separate

determination that a Tribe has adequate

jurisdictional authority and

administrative and programmatic

capability before it approves each Tribal

program.

In particular, if the Tribe is asserting

jurisdiction over hazardous waste

activities conducted by non-members on

fee lands within Reservation

boundaries, it must explicitly show, in

its submission, that the activities of nonmembers on fee lands regarding

hazardous waste could have direct

effects on the health and welfare of the

Tribe that are serious and substantial.

Copies of all documents, such as

treaties, constitutions, by-laws, charters,

executive orders, codes, ordinances,

and/or resolutions which support the

Tribe’s assertions of jurisdiction must

also be included. EPA will review this

documentation and any comments given

during the public comment period, and

then will make a determination whether

there has been an adequate

demonstration of Tribal jurisdiction

over Tribal, and if asserted, non-member

hazardous waste activities on fee lands

within the boundaries of the

reservations.

Finally, capability is a determination

that will be made on a case-by-case

basis. Ordinarily, the information

provided in the application for RCRA

Subtitle C permit program approval

submitted by any applicant, Tribal or

State, will be sufficient (see the program

description requirements under § 271.6

and the discussion on pages 51–55 for

the elements of programmatic capability

in the context of RCRA Subtitle C

authorization). Nevertheless, EPA may

request, in individual cases, that the

Tribe provide a narrative statement or

other documents showing that the Tribe

is capable of administering the program

for which it is seeking approval. See 59

FR 44339 (December 14, 1994).

D. Definitions

The key purpose of this proposed

rulemaking is to clarify the ability of

Indian Tribes to obtain authorization

from EPA of their hazardous waste

management programs under RCRA

section 3006. The proposal would

further clarify that Indian Tribes may

obtain Federal grants under RCRA

section 3011 to assist Tribes in

developing and implementing their

authorized programs.

The proposal would provide this

clarification through changes to the

governing definitions in 40 CFR 270.2

and 40 CFR 35.105. The most significant

of the changes is the proposed inclusion

of ‘‘Indian Tribes’’ within the list of

governmental entities defined as

‘‘States’’ in 40 CFR 270.2. Under the

Statute, both program authorization

under section 3006 and financial

assistance under section 3011 are

available to States. Therefore, the

proposed change to the regulatory

definition of ‘‘States’’ would make it

clear that EPA interprets the Act as

providing EPA with sufficient authority

to authorize and to issue grants to

qualified Indian Tribes.

EPA is also proposing to add to

§ 270.2 new definitions for ‘‘Indian

Tribes’’ and ‘‘Indian Country.’’ The

proposed definition of ‘‘Indian Tribe’’ or

‘‘Tribe’’ would include any Indian

Tribe, band, group or community

recognized by the Secretary of the

Interior and having a governmental

body carrying out substantial

governmental duties and powers.

Second, ‘‘Indian country’’ would be

defined as in 18 U.S.C. 1151, to mean

(A) all land within the limits of any

Indian reservation under the

jurisdiction of the United States

Government, notwithstanding the

issuance of any patent, and including

rights-of-way running throughout the

reservation, (B) all dependent Indian

communities within the borders of the

United States whether within the

original or subsequently acquired

territory thereof, and whether within or

without the limits of a state, and (C) all

Indian allotments, the Indian titles to

which have not been extinguished,

including rights-of-way running through

the same. EPA notes that the meaning of

the term ‘‘reservation’’ must be

determined in light of relevant case law.

EPA considers trust lands formally set

apart for the use of Indian Tribes to be

‘‘Indian country’’ even if the trust land

has not been formally designated as a

‘‘reservation.’’ See Oklahoma Tax

Comm’n v. Citizen Band of Potawatomi

Indian Tribe of Oklahoma, 498 U.S. 505

(1991).

These definitions are important not

only for determining what entities may

apply for Subtitle C authorization, but

also for determining the territorial and

legal reach of a Tribe’s authorized

program. They are also important in

establishing the necessary governmentto-government relationship with Tribes,

and in addressing the issue of tribal

regulatory authority. EPA requests

comment on these proposed definitions,

and the appropriateness of extending to

Tribes the availability of Subtitle C
30478 Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Proposed Rules

authorization and RCRA section 3011

grants.

Available Alternatives to Authorization

EPA recognizes that most Tribes will

choose not to pursue Subtitle C

authorization at this time. Several

mechanisms already exist whereby

Tribes may engage in a partnership with

the Agency in implementing hazardous

waste management activities. These

mechanisms include cooperative

agreements, Memoranda of

Understanding and Memoranda of

Agreement. Under all these

mechanisms, Indian Tribes can develop

and implement their hazardous waste

regulatory authorities and exercise their

sovereign authority with respect to their

environments. These mechanisms may

also provide Tribes opportunities to

increase their capacity to manage

environmental programs by

participating with EPA in hazardous

waste activities, while maintaining the

government-to-government relationship

described in EPA’s Indian Policy.

Authorization is distinguished from the

other types of relationships, because it

would confer on the Tribal government

the authority to operate its program in

lieu of EPA operating all or part of the

Federal hazardous waste program.

E. Funding

EPA recognizes that, assuming current

funding levels remain the same, the

effect of this proposal could be to make

available to Tribes Federal funds that

otherwise would be allocated only to

State hazardous waste programs. Tribes

that assume the burdens of a RCRA

hazardous waste program assume these

burdens in lieu of EPA acting directly,

so the Agency believes it is appropriate

for Indian Tribes to obtain RCRA section

3011 funds that are commensurate with

these burdens.

While Congress explicitly authorized

grants to municipalities (including

Tribes) under RCRA subtitle D, EPA

does not believe it is precluded from

interpreting RCRA to authorize grants to

authorized Tribes under RCRA subtitle

C section 3011. Section 3011 does not

provide for grants to municipalities

because of the nature of these grants,

which are for the development of broad

hazardous waste programs. There is

nothing in RCRA or the legislative

history to indicate that Congress

intended to limit Tribal grants to only

those provisions for which

municipalities may receive grants.

Under the statutory scheme, section

3011 grants are specifically designed to

aid in developing and implementing

authorized hazardous waste programs.

Given the Agency’s interpretation that

RCRA section 3006 is properly read to

allow EPA to authorize qualifying

Tribes to administer RCRA programs in

lieu of EPA, it follows that these Tribes

should also be eligible to receive grant

funding under RCRA section 3011 to

assist ‘‘in the development and

implementation of authorized * * *

hazardous waste programs.’’ The

Agency’s interpretation is consistent

with the well established general

principle of statutory construction that

ambiguous statutes should be construed

in favor of Tribes. See, e.g., Ramah

Navajo School Board v. Bureau of

Revenue, 458 U.S. 832, 846 (1982); see

also, F. Cohen, Handbook of Federal

Indian Law, 224–25 (1982).

EPA requests comments that would

assist it in allocating RCRA section 3011

funds equitably to authorized States and

Tribes. The Agency is especially

interested in suggestions that would

mitigate any potential negative effects

on funding of authorized State

programs.

F. Program Application Elements

Because of the uniqueness of Tribal

governments, EPA is proposing in this

rule to modify some of the program

application elements required under

§ 271.5 for Tribal applications. These

modifications are explained in detail

below.

1. Program Description

The proposed rule adds a new

subsection to § 271.6 which requires a

Tribe to include a map, legal

description, or other information

sufficient to identify the full extent of

the lands over which the Tribe is

asserting jurisdiction. In addition, the

Tribe would identify in the Program

Description the location of any

generator, storage, treatment or disposal

facilities subject to RCRA Subtitle C,

including any facilities on fee lands

owned by non-members. Finally, in

those instances where a Tribe asserts

jurisdiction over hazardous waste

activities conducted by non-members on

fee lands within reservation boundaries,

the proposal would require the Program

Description to identify clearly the

activities and areas affected by such a

claim of jurisdiction, and to assert and

explain how the activities of nonmembers will have a serious and

substantial effect on the health and

welfare of the Tribe.

2. Attorney General’s Statement

EPA recognizes that the ‘‘Attorney

General’’ designation in 40 CFR 271.7

may not be appropriate for all Tribes,

since some Tribal governments may not

have an Attorney General. Therefore,

the proposal would add § 271.27(a)(4),

which clarifies that the requirement of

an Attorney General’s Statement is

satisfied for Indian Tribes when the

Statement is signed by the Tribal

attorney or by an equivalent legal

counsel retained by the Indian Tribe for

representation in matters before EPA or

the courts pertaining to the Indian

Tribe’s program. This amendment adds

sufficient flexibility to the existing

procedures to enable the necessary legal

certifications to be prepared and

reviewed, without imposing the undue

rigor of requiring a submission by an

attorney with a particular title, office, or

position. The essential consideration is

that the Statement be signed by an

attorney who has been retained to

represent the Tribe on matters

pertaining to the Tribe’s program

authorization. The Tribe’s attorney

should include in the Statement an

assertion that he/she has the necessary

authority to represent the Tribe with

respect to the application, and to certify

that the laws of the Tribe provide

adequate authority to carry out the

program.

3. Memorandum of Agreement

This proposal includes several

modifications to the § 271.8 provisions

that describe the content of the

Memorandum of Agreement that is

entered into by EPA and authorized

States. This Memorandum generally

addresses such matters as the transfer of

program documents to the State upon

authorization, as well as the type and

frequency of coordination and oversight

that will occur after authorization of a

State.

40 CFR 271.16 requires that, in order

to obtain authorization for its hazardous

waste program, States must have

criminal enforcement authority over

‘‘any person’’ committing certain

enumerated acts and have the authority

to impose a fine of $10,000 per

violation. Federal law bars Indian Tribes

from trying criminally or punishing

non-Indians in the absence of express

authority in a treaty or statute to the

contrary. Oliphant v. Suquamish Indian

Tribe, 435 U.S. 191 (1978). In addition,

the Indian Civil Rights Act prohibits any

Indian court or Tribunal from imposing

for any one offense a criminal penalty

greater than $5,000 on Indians within its

jurisdiction (25 USC 1302(7)).

The Agency realizes that requiring

Tribes to demonstrate the same criminal

authority as States would affectively

prohibit any Tribe from obtaining

program authorization. The Agency

therefore proposes to add provision

271.27(a)(5) so that Tribes are not

required to exercise comprehensive
Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Proposed Rules 30479

criminal enforcement jurisdiction as a

condition for hazardous waste program

authorization. Under this rule, Tribes

are required to provide for the timely

and appropriate referral of criminal

enforcement matters to the Regional

Administrator when Tribal enforcement

authority does not exist or is not

sufficient (e.g., those concerning nonIndians or violation meriting penalties

over $5,000) This section also requires

that such procedures be established in

the formal Memorandum of Agreement

with the Regional Administrator

required by 40 CFR 271.8. This

approach is the same that the Agency

has taken in the context of Tribal

programs under the SDWA and CWA.

It should be noted that, as in

authorized States, EPA retains the

authority to take necessary enforcement

action if an authorized Tribe did not (or

could not) take such action or did not

enforce adequately (e.g., did not or

could not impose a sufficient penalty).

EPA emphasizes that this referral

mechanism is available only in those

cases where the limitation on Tribal

enforcement arises under Federal law. A

Tribe that encumbers its own

enforcement authority with limitations

based on laws adopted by the Tribe

would be subject to the same ‘‘adequacy

of enforcement’’ review standard that

applies to States under RCRA section

3006 and the part 271 regulations.

EPA seeks comment on whether the

authorization requirements set out for

States in 40 CFR part 271 are

appropriate for Tribes and whether any

of these requirements will

inappropriately restrict Tribes from

seeking authorization. EPA also requests

comment on proposed § 271.27(a), and

particularly, the modifications proposed

for an Indian Tribe’s Program

Description, Attorney General

Statement, and Memorandum of

Agreement submissions.

G. Partial Authorization Authority

1. Background

Under this proposal, Indian Tribes

would be eligible to obtain

authorization from EPA to operate

partial RCRA hazardous waste

programs. This aspect of the proposal

introduces authority for Tribes that is

not now available to the States and

Territories of the United States which

currently have or are eligible for RCRA

Subtitle C authorization. The proposal

would amend 40 CFR § 271.1(h), which

currently prohibits partial State

hazardous waste programs from

operating under RCRA Subtitle C final

authorization. The proposed rule would

exempt only Tribal hazardous waste

programs which meet the proposal’s

criteria from the effects of the current

prohibition. Other ‘‘States’’ (i.e., States

and Territories) would remain subject to

the partial program prohibition.

EPA does not interpret RCRA section

3006 to preclude the operation of partial

RCRA programs. The current regulatory

prohibition in 40 CFR 271.1(h) was

adopted as a policy matter within EPA’s

discretion in 1979, in the face of the

Act’s silence on the precise issue.

Indeed, when EPA developed its

RCRA authorization regulations, the

Agency initially proposed that States

could obtain partial authorization. See

43 FR 4366 (February 1, 1978). The 1978

proposal would have allowed States ‘‘to

receive partial authorization for selected

major components of the full hazardous

waste program, but only if the State

meets the requirements of equivalency,

consistency, and enforceability for each

such major component.’’ Id. at 4368.

Commentors on the 1978 proposed rule

voiced strong opposition to this

proposal, based primarily on the burden

and confusion that would result to the

regulated community due to shared

EPA/State implementation

responsibilities over partial programs. In

the face of these comments, EPA

announced in the 1979 final rule the

current partial program prohibition. See

44 FR 34259, (June 14, 1979).

In enacting the Hazardous and Solid

Waste Amendments (HSWA) of 1984,

Congress added revisions to the section

3006 authority for State program

authorization. HSWA added language to

section 3006(b) of the Act that allows

the Administrator to base his or her

findings of a state program’s

equivalency with the Federal program

on the Federal program in effect one

year prior to the submission of the

state’s application. While this language

could be construed as a mandate that

States eventually adopt the entire

Federal program, EPA believes that the

better view of the 1984 amendment’s

purpose was to afford States some relief

from the need to continually update

their applications to reflect recent

changes in the Federal program. In

effect, this amendment provided states

with a grace period, allowing states to

defer including Federal changes that

occurred within one year of the

submission of their applications.

Understood in this context, EPA does

not believe that the section 3006(b)

revision was intended to address the

partial program issue. Therefore, EPA

believes that it retains the discretion to

allow Indian Tribes to obtain partial

program authorization.

2. Rationale for Partial Tribal Programs

The Agency believes that there are

compelling reasons for allowing Indian

Tribes to operate partial RCRA

programs. Fundamentally, as set out in

the EPA Indian Policy, the Agency is

committed to make every reasonable

effort to recognize the sovereignty of

Indian Tribes and to eliminate any

administrative barriers to the Tribes’

primary administration of programs

such as RCRA Subtitle C. EPA believes

that it is a reasonable step in

implementing this important policy to

remove the barrier imposed by the

current regulatory prohibition of partial

RCRA programs as it affects

authorization of Indian Tribes.

Otherwise, EPA believes that few, if any

Tribes would participate in RCRA

Subtitle C authorization.

Indian Tribes typically have much

smaller populations than States, and

there are generally limited industrial

and commercial operations conducted

within the Tribe’s jurisdiction. This

tends to limit not only the likelihood of

substantial hazardous waste generation

activities within Indian country, but it

also limits the sources of revenues to

support the activities of Tribal

governments. Therefore, Indian Tribes

would not typically possess the

resources to develop and carry out a full

RCRA Subtitle C program. Particularly

in those areas where the full RCRA

program requires special expertise (e.g.,

experts in hydrogeology to oversee

RCRA corrective actions), skills and

resource shortages common among

Indian Tribes would preclude most

Tribes from participating in RCRA

authorization, if partial authorization

were not an option. EPA believes that it

would make little sense to require Tribal

governments to develop authorities and

capabilities to regulate facilities that are

not now and are unlikely ever to be

present on Tribal lands.

EPA solicits comment on the removal

of the § 271.1(h) partial program

prohibition only for Indian Tribes. EPA

recognizes that some States and the

Insular territories may believe that they

also should be allowed to obtain partial

authorizations, because of their size,

limited involvement with hazardous

waste operations, or limited need and

capability to operate a full RCRA

hazardous waste program. While EPA

understands these interests, the Agency

believes that these factors are present to

a greater degree with Indian Tribes than

with the States and Territories. In

addition, the EPA Indian Policy is a

distinguishing factor which supports

this limited proposal, since it represents

EPA’s commitment to eliminate
30480 Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Proposed Rules

administrative impediments to

authorizing Tribal programs. Finally,

EPA is concerned that a more general

relaxation of the partial program

prohibition would result in many States

either electing not to assume new RCRA

program requirements which they view

as burdensome (thereby leaving EPA

with the most significant

implementation burdens), or

transferring previously authorized

program components back to EPA.

3. Criteria for Partial Program

Authorization

Today’s proposed rule includes

criteria that would govern the

evaluation of Tribes’ requests for partial

program authorization. This section

explains these criteria.

a. Composition and size of the

regulated community. EPA believes that

the most critical consideration in

evaluating the appropriateness of a

partial program authorization is the

composition and size of the regulated

community. The components of a Tribal

hazardous waste management program

should reflect the types of facilities and

the magnitude of hazardous waste

operations that are actually present, or

likely to establish operations, within the

Tribal jurisdiction. This criterion should

be considered both in the context of the

authorities and capabilities which the

Tribe should demonstrate in its

application, and in evaluating the

allocation of regulatory oversight

burdens between a Tribe and EPA.

For example, if a Tribe’s regulatory

universe consists solely of hazardous

waste generators and transporters, this

proposal would permit the Tribe to

demonstrate in its application the

authorities and capability to regulate

these types of facilities. Such a Tribe

would need to develop regulatory

counterparts to EPA’s generator

standards in 40 CFR parts 262 and 268,

as well as transporter standards

corresponding to EPA’s part 263

requirements. However, the application

would not need to include regulatory

authorities for hazardous waste

landfills, incinerators, or other types of

hazardous waste management facilities

which do not currently exist, and which

are not likely to ever operate within a

Tribe’s territorial jurisdiction.

EPA believes that partial

authorization is warranted only in

instances where the Tribe has

responsibility for regulating all the

facilities within a particular program.

For example, Tribes which are

authorized solely for generators and

transporters would be responsible for all

persons or entities that fall into those

programs. Although it would be

appropriate for EPA to provide limited

technical expertise and to implement its

statutory responsibilities under HSWA

at facilities regulated by the Tribal

program, it would not be appropriate for

EPA to assume nearly all the regulatory

burdens at such sites.

The omission from a Tribe’s

application of an entire class of existing

facilities may raise questions about the

appropriateness of a partial program

authorization. In such cases, EPA would

assess the regulatory burden associated

with the Tribe’s proposed program, and

the burdens which EPA would retain as

a result of regulating the class of

facilities omitted from the Tribal

program. On a case-by-case basis, EPA

would determine whether the

significant sovereignty interests

reflected in authorization and the

regulatory burdens being assumed by

the Tribe outweigh the circumstances of

EPA retaining direct implementation

responsibilities for a class of facilities.

However, where the omission of such a

class of facilities would result in EPA

bearing a disproportionate regulatory

burden, this proposal would view this

as grounds for a negative determination

on that Tribe’s request for partial

authorization. EPA solicits comments

on how it should strike the appropriate

balance between Tribal and EPA

interests when evaluating partial

program applications that involve some,

but not all, of a Tribe’s regulated

community.

b. Extent to which program

components are severable. EPA’s 1979

decision to prohibit partial RCRA

programs was based primarily on

concerns which the regulated

community identified about the

confusion which would result under a

system of joint State and EPA

implementation. This concern remains

today, and is perhaps even more

prominent than in 1979, given the

increased growth and complexity of the

RCRA Subtitle C management program

since that date. On the other hand, the

interest of avoiding dual RCRA

programs should not become an

insurmountable obstacle to EPA’s

implementation of its Indian Policy,

particularly since dual State/EPA

implementation of Subtitle C has

become fairly commonplace under the

mandate of the 1984 HSWA

amendments.

EPA believes that the severability of

the program elements applied for by a

Tribe is an important criterion in

evaluating the merits of a Tribe’s request

for a partial program authorization. In

this context, ‘‘severability’’ means that

there is a distinct set of requirements for

which the Tribe is exclusively

responsible for program

implementation. Severability is

important in avoiding or minimizing the

confusion and burdens arising from

joint Tribal/EPA implementation of

RCRA. Therefore, a Tribal application

will be evaluated to determine that, as

far as possible, the Tribe’s application

includes the authorities that are needed

to fully regulate the class or classes of

facilities for which the Tribe is seeking

authorization. When this occurs, there

should be minimal confusion insofar as

the particular roles and responsibilities

of the Tribe and EPA.

EPA recognizes that total severability

of roles and responsibilities may not be

fully achievable. Nevertheless, an

acceptable partial program application

is one that tends to clarify, not confuse,

regulatory responsibilities for hazardous

waste management activities that the

Tribal program would regulate.

To meet this criterion, a Tribe seeking

authorization, for example, to regulate

hazardous waste generators would need

to include authorities in its program

corresponding to regulations found in

several distinct parts of Volume 40 of

the Code of Federal Regulations (CFR).

While management standards specific to

generators are set forth in 40 CFR part

262, generators also become subject to

RCRA permit requirements when they

store or treat hazardous wastes in tanks

or containers for a period exceeding 90

days (or 180 days for certain small

quantity generators). In these cases,

counterparts to part 264 general facility,

tank, and container permitting

standards might also be appropriate.

Likewise, generators are subject to

certain waste analysis, certification, and

other requirements included in EPA’s

Part 268 Land Disposal Restrictions

(LDRs), and these additional generator

requirements should also be reflected in

the Tribe’s legal authorities.

EPA requests comment on the

proposed criterion under which

maximum severability of Tribal and

EPA regulatory responsibility for

hazardous waste management activities

would be a persuasive factor in

evaluating Tribes’ requests for partial

program authorization. Under this

proposal, EPA could recognize

exceptions for particular facility

requirements (e.g., HSWA corrective

action) where direct EPA oversight is

needed to ensure the availability of a

special technical expertise or resources

which a Tribe could not reasonably be

expected to develop and retain. This

criterion is discussed in the section

which follows.

c. Extent to which EPA-retained

elements require special expertise. As

discussed in the preceding section, the
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requirement of special implementation

expertise may be a circumstance

warranting EPA’s retention of direct

oversight responsibilities for a particular

facility, of for a class of facilities. Thus,

under this proposal, EPA could approve

a Tribal program that lacked regulatory

authorities to oversee existing landfills,

land treatment units, surface

impoundments, or waste piles, where

the Tribe’s application demonstrates

that the regulation of these facilities

would require the substantial

involvement of hydrogeologists or other

specialists that are not reasonably

available to the Tribe. These areas of

expertise could come into play, for

example, in the oversight of Subtitle C

facilities’ groundwater monitoring and

protection requirements, and in

overseeing the HSWA corrective action

mandates to address releases of

hazardous constituents from the solid

waste management units of facilities

seeking RCRA permits (40 CFR part 264,

subpart F). In addition, the need for

special EPA expertise could also be

present in instances where a treatment

facility is seeking authorization to

operate treatment processes that require

a significant chemical or mechanical

engineering expertise to evaluate and

permit.

EPA believes that it should scrutinize

closely those requests for partial

program authorization that propose to

exclude authority to regulate an entire

class of existing facilities because of a

need for special expertise. In many such

instances, the special expertise might

only be needed occasionally, and could

be provided by EPA or by contractor as

technical support to the Tribe.

More typically, special EPA expertise

may be asserted as a basis for EPA’s

retention of its HSWA authority for

facilities otherwise subject to a Tribe’s

authorized RCRA Subtitle C program.

The special technical expertise

associated with the HSWA corrective

action and LDR programs may justify

joint EPA/Tribal administration of

RCRA at facilities with corrective action

needs or with significant involvement in

highly technical treatment processes.

Under this proposal, EPA could

authorize partial Tribal programs that

excluded HSWA corrective action and

LDR treatment standards, and the Tribe

could be authorized to regulate the nonHSWA aspects of the facilities’

operations.

EPA requests comments on the

proposal to include special EPA

expertise as a criterion for authorizing a

partial Tribal program. The Agency also

solicits specific comments that would

aid EPA in identifying those elements of

the RCRA Subtitle C or HSWA

regulatory programs that are suitable

candidates for EPA retention, and those

that should be included within a Tribe’s

authorized program.

d. Extent to which there is a bona-fide

waste management program for which

the Tribe possesses the necessary

capability.

The final criterion proposed in this

notice requires the Tribe to demonstrate

to EPA’s satisfaction that there is a real

and significant presence of regulated

hazardous waste management activities

within the Tribe’s jurisdiction, so that

the Tribe’s hazardous waste

management program will constitute a

bona-fide regulatory program. This

criterion also requires the Tribe to

demonstrate that it has the necessary

capability to administer the partial

program for which it is seeking

authorization.

The requirement of a real and

significant involvement with hazardous

waste operations is not intended to

suggest a quantity threshold on the

amount of waste generated or the

numbers of facilities that must be

present. Rather, this requirement is

intended to connote that there must be

a real or imminent universe of

hazardous waste management activities

subject to regulation. As such, a

speculative possibility or interest does

not meet this criterion.

Further, to be authorized, a program

must also be able to demonstrate the

necessary capability to oversee the

universe of regulated hazardous waste

activities, and administer the program’s

legal authorities and guidance.

Capability is a concept that addresses,

among other factors, the mix of

resources and skills which a Tribe will

need to implement successfully its

hazardous waste program. EPA

currently applies capability criteria to

States that seek RCRA Subtitle C

authorization. The capability

implications of this proposal are

discussed below in section IV.H.6 of

this preamble.

4. Minimal Program Considerations

EPA believes that there are certain

RCRA hazardous waste program

elements which, at a minimum, must be

present in every application for a partial

RCRA program authorization. In other

words, there is a ‘‘floor set’’ of program

elements, which if not included in an

application, could constitute grounds

for rejection of a Tribal program

application.

EPA proposes that Tribal counterparts

to the following Federal program

elements would constitute the minimal

program for which a Tribe could seek

partial program authorization:

• The appropriate subset of

definitions in 40 CFR part 260

corresponding to the hazardous waste

program within the Tribe’s application;

• Waste identification requirements

in 40 CFR part 261;

• Generator requirements in 40 CFR

parts 262 and 268; and

• Transporter requirements in 40 CFR

part 263.

Additionally, Interim Status

Standards, 40 CFR part 265, cover two

types of units, newly regulated units

(recently included as a RCRA Subtitle C

facility due to new regulations) and

non-notifiers (such as those operating as

illegal Subtitle C units which become

identified through inspections or other

means). Units identified as subject to

RCRA Subtitle C which were not

previously regulated will be subject to

parts 264 and 265 closure requirements.

U.S. EPA will be responsible for

permitting and/or closure of those units

subject to part 265 for Tribes that choose

not to adopt these regulations as part of

their authorized program. Tribes that

become authorized for part 265 will be

responsible for permitting and/or

closure (whichever is appropriate) of

these units.

EPA requests comments on the

appropriateness of these minimum

program elements for defining an

acceptable partial RCRA Subtitle C

program for Tribes.

5. Financial Assurance Requirements for

Tribally Owned and Operated Facilities

RCRA Subtitle C requires owners and

operators of hazardous waste treatment,

storage, and disposal facilities to

provide financial assurance for closure,

post-closure care, liability for injury to

third persons and corrective action.

The Federal financial assurance

regulations exempt State and federallyowned or operated facilities from the

financial assurance requirements (See

40 CFR 264.140(c)), because it is EPA’s

belief that State and Federally-owned or

operated facilities will always have

adequate resources to conduct closure

and post-closure care activities properly

(See 45 FR 33154, 33198, May 19, 1980).

Notwithstanding that today’s proposal

would give Tribes, like States, the

authority to operate a hazardous waste

regulatory program in lieu of the Federal

program, it would not change the

applicability of the existing

requirements by exempting triballyowned or operated facilities from the

financial assurance requirements.

Tribally-owned or operated facilities

subject to an authorized Tribal

hazardous waste regulatory program,

therefore, would continue to have to

comply with the financial assurance
30482 Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Proposed Rules

requirements like all other owners and

operators of treatment, storage or

disposal facilities, private or public, that

are not State or federally-owned or

operated facilities.

EPA is not proposing to extend the

State/Federal exemption to Tribes

because EPA believes that the financial

resources that would be available to a

specific Tribe in the event closure, postclosure, or liability obligations were

triggered should be evaluated. EPA

believes that Tribal members will not

enjoy an equivalent degree of protection

from a tribally operated program unless

there are assurances provided that there

will be adequate resources to address

these obligations. Because at this time

many Tribes may not have the tax base

or other means of raising revenue as do

the States and the Federal government,

EPA believes that, as a general matter,

it would not be prudent to extend to

Tribally owned or operated facilities the

financial assurance exemption. The

financial assurance requirements ensure

that certain protections will be available

to persons who might be negatively

affected by a facility. EPA believes that

financial compensation should be

available to members of Indian Tribes

(as they are for citizens of States) for

third party injuries or for clean-ups if

needed. The costs associated with

closure and post-closure care activities,

not to mention liability compensation to

injured parties, could greatly burden

Tribal administrations and, if

unavailable, could compromise Tribal

members’ health and environment.

EPA is, however, soliciting comment

on the possibility of developing a

special financial test for tribally owned/

operated facilities subject to RCRA

Subtitle C, identical or similar to that

developed for MSWLFs Local

Government (‘‘LOGO’’) Test under

§ 258.74(f). The ‘‘LOGO’’ consists of a

(1) financial component, (2) a public

notice component, and (3) a record

keeping and reporting component. A

local government must satisfy each of

the three components to pass the test

and must pass the test on an annual

basis.

EPA is also interested in receiving

comments on other options that would

provide the same level of protection to

tribal citizens currently afforded by the

financial requirements of § 264.140(c).

6. EPA’s Retained Authority

Under this proposal, EPA would

retain responsibility for implementing

the RCRA and HSWA program

authorities not included in a Tribe’s

authorized partial program. For

example, if a Tribe received

authorization for only a generator,

transporter, and non-HSWA storage

facility program, EPA would retain

responsibility for regulating any

incinerators, landfills, or other

treatment or disposal facilities, and for

implementing the HSWA corrective

action requirements at all TSD facilities.

This situation contrasts significantly

from that which occurs in States, where

partial program authorizations are not

available. In authorized States, for

example, the States regulate all types of

treatment, storage, or disposal facilities

(TSDFs). In these States, EPA

implements only the HSWA program,

and only until the States receive

authorization for the HSWA authorities.

EPA emphasizes that this proposal

would not diminish the scope of the

overall RCRA Subtitle C program

applicable in Indian Country. A Tribe’s

approved partial program components,

considered together with the program

components retained by EPA, would

define a complete RCRA hazardous

waste program with the authority and

flexibility to respond to the full gamut

of facilities, releases, or other

circumstances.

7. Capability Considerations

In administering the Subtitle C

authorization program under RCRA

section 3006, EPA realizes that a State

or Tribal hazardous waste management

program cannot be judged solely by

whether it has equivalent legal

authorities and whether it can provide

acceptable forms of documentation.

Indeed, EPA’s overarching objective in

authorization is to approve quality

programs that are protective of health

and the environment. Therefore, EPA

looks beyond the elements of a State’s

authorities (i.e., its legal codes, policies,

forms) and evaluates the capability of

the State agencies to implement and

manage their substantive Subtitle C

program responsibilities.

Under current policies and

procedures, EPA conducts a capability

assessment both when a State seeks its

initial or ‘‘base program’’ authorization,

and subsequently when the State adopts

program revisions which the EPA

Region determines may have major

impacts on the State’s hazardous waste

program. The adoption of rules bringing

a significant class of new generators or

permitted facilities into the State’s

program, or the adoption of the HSWA

corrective action program, are examples

of revisions that would likely trigger a

new capability assessment.

Capability is a fluid concept that does

not typically lend itself to precise

measurement. While capability can

fluctuate in the short-term due to a

response to budget cuts or loss of key

staff, EPA’s goal in conducting

capability assessments is to focus on the

overall, long-term performance of a

State’s program, and the expected future

performance. The emphasis is placed on

a program’s long-term (typically 3 years

or more) effectiveness, its ability to meet

its commitments over the long term,

indicators of constant improvement over

time, as well as consistency in

performance. Critical program areas that

are assessed include enforcement,

permitting, corrective action, and

program management. In each area,

current guidance suggests factors that

are indicative of a capable program, and

factors that may be indicative of a

capability problem. For example, in the

enforcement area, the assessment would

examine a State’s enforcement

strategies, its record for completing

quality inspections, its violation

classification plan and record, its record

of taking timely enforcement responses

that are appropriate to the severity of

violations, and its proven ability to meet

its grant commitments in the

enforcement area. In the management

area, EPA examines whether sufficient

resources are committed to the

hazardous waste program, whether there

is a proper mix of staff and skills to

carry out the program, whether the State

provides appropriate training, and

whether the State maintains the

necessary information management

systems to oversee the program.

Additional criteria are suggested for the

permitting and corrective action areas.

See RCRA State Authorization

Capability Assessment Guidance,

revision dated October, 1991.

EPA is proposing to apply the same

capability assessment criteria to Tribal

programs that it currently applies to

States. However, capability will be

evaluated only with respect to the

program components for which an

Indian Tribe is seeking authorization.

As is currently the practice with States,

the assessment should be conducted at

the time of a Tribe’s initial authorization

application, as well as at subsequent

times when the Tribe is adopting

program revisions that may have a

significant impact on its authorized

program.

Because of the availability in this

proposal of partial program

authorization, capability considerations

may have quite different effects for

Indian Tribes as they do for States. First,

capability may fundamentally affect the

scope of the Subtitle C program for

which a Tribe seeks authorization.

Under this proposal, a Tribe need not

develop capabilities to permit or oversee

all types of RCRA facilities. In some

instances, the Tribe may never need to
Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Proposed Rules 30483

concern itself with certain types of

facilities, while in other instances, the

skills and capabilities may be more

appropriately retained and implemented

by EPA. In either case, the lack of a

particular capability would not

necessarily be viewed as an impediment

to authorization; rather, it may only

affect the scope of the program for

which the Tribe would be eligible to

obtain authorization. In practice, Tribes

would be expected to limit their

program applications to those areas

where they can demonstrate the

requisite capability. EPA would also

have the discretion to authorize less

than all the program components

applied for by a Tribe, where capability

issues specific to one or more

components of an application are not

resolved to EPA’s satisfaction.

The relationship of capability to

partial programs is a very significant

aspect of this proposal. This approach to

capability assessments is consistent

with the EPA’s Indian Policy mandate

that EPA remove administrative

impediments to Tribal primacy in

administering environmental programs

such as RCRA.

EPA believes, however, that there are

limits on the extent to which it should

tailor a program authorization to a

Tribe’s demonstrated capability. A

hazardous waste program that is

exceedingly narrow in scope may not be

appropriate for authorization, despite

the importance attached to

authorization as a means of recognizing

a Tribe’s sovereignty. Therefore, EPA

believes that the minimal program

considerations discussed above in

section IV.H.4 of this preamble are

helpful in determining the minimal

capabilities that must be present to

warrant an authorization review.

Likewise, in cases where the allocation

of program burdens that would result

from a partial authorization would leave

EPA with disproportionate and

substantial responsibilities, EPA may

also withhold partial authorization. This

follows from the fact that the investment

by EPA of resources in overseeing an

approved program of very narrow scope

would only drain resources that might

be better used by EPA to discharge its

own implementation responsibilities.

EPA’s evaluation of capability may

also consider if applicable, the

relationship between the existing or

proposed Tribal agency that will

implement the hazardous waste

program and any potential regulated

Tribal entities. It is not uncommon for

a Tribe to be both regulator and

regulated entity, which may result in a

potential conflict of interest.

Independence of the regulator and

regulated entity best assures effective

and fair administration of a hazardous

waste program. Tribes will generally not

be required to divest themselves of

ownership of any regulated entities to

address any potential conflict. Nor is the

Agency intending to limit Tribal

flexibility in creating structures that will

ensure adequate separation of the

regulator and regulated entity. Instead,

this discussion is intended to alert

Tribes at an early date about potential

problems in obtaining program

authorization.

8. Review Standards

While EPA is today proposing to

allow Indian Tribes to obtain partial

RCRA program authorization, the

Agency is not proposing any alteration

to the review standards that will be used

to evaluate the merits of Tribes’

applications. That is, unless otherwise

noted, the Tribe’s application must

demonstrate that each component of the

Tribe’s partial program meets the

statutory authorization criteria.

Specifically, the Tribe must show that

each program component is equivalent

to the corresponding Federal program

requirements. Each component must be

consistent with the Federal program and

with the RCRA Subtitle C programs

applicable in other authorized states. In

addition, the Tribe must show that the

components are no less stringent than

the corresponding Federal program

requirements, except for those

requirements (e.g. civil or criminal

enforcement) to which the Tribe agrees

in the MOA to transfer to EPA.

To the extent that an Indian Tribe’s

partial program would include

permitting authority for treatment,

storage, or disposal facilities (TSDFs),

the Tribe’s program would also be

required to meet the statutory

requirements for public participation in

the issuance of RCRA permits. RCRA

also requires, pursuant to section

3006(f), that the Tribes demonstrate that

their program provides for the public

availability of information regarding

hazardous waste management facilities

and sites, in substantially the same

manner, and to the same degree, as EPA

would provide information to the public

under the Federal Freedom of

Information Act, 5 U.S.C. 301, 552, 553,

40 CFR part 2.

9. Obligation to Adopt Program

Revisions

The current authorization regulations

at 40 CFR part 271 impose a continuing

obligation on authorized states to

update their authorized programs to

reflect revisions made to the Federal

regulatory program. Under 40 CFR

271.21, there are schedules imposed by

which States must adopt counterparts to

Federal program changes, and

procedures for submitting these program

revisions to EPA for authorization. In

addition, § 271.21(a) requires that an

authorized State notify EPA of any

proposed modifications to its basic

statutory or regulatory authority, as well

as to its forms, procedures, or priorities.

The obligation to keep EPA informed of

proposed program changes applies both

to changes proposed in response to

Federal program revisions, and to

proposed changes that are initiated

solely as a matter of state law or policy.

EPA proposes that these same

obligations would apply to Indian

Tribes’ authorized partial programs.

Tribes would be required to notify EPA

of any significant, proposed changes to

their basic legal authorities, policies,

forms, or priorities, and to modify their

programs in response to Federal

program revisions according to the

schedules in § 271.21. However, the

obligation to modify a partial program

and seek EPA authorization of revisions

would be more limited than in the case

of other authorized States. An Indian

Tribe’s obligation would extend only to

Federal revisions which directly affect

the components of the Tribe’s

authorized program. For example, a

partial program which regulates only

RCRA generators and transporters

would need to undergo a revision to

address a change to the Hazardous

Waste Uniform Manifest promulgated

by EPA, since that change affects

directly the waste management

requirements for generators and

transporters. However, the same partial

program would not need to undergo a

revision to address new Federal

standards for incinerator emissions,

since incinerators are beyond the scope

of the approved partial program.

EPA recognizes that there is the

potential for some confusion in

identifying the extent to which

approved partial programs must

undergo revision to address Federal

program changes. The Agency believes

that Tribes and the EPA regions will

need to confer closely on Federal

program revisions, and reach an

understanding on those that will trigger

the need for a Tribal program

modification. An agreement on the

scope of the Tribe’s responsibility to

modify its approved program should be

included in the annual workplan that

would be negotiated by EPA and the

Tribe in conjunction with the Tribe’s

receipt of RCRA 3011 grant funds to

administer its authorized hazardous

waste program. Of course, Federal

program changes that are determined
30484 Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Proposed Rules

not to affect the Tribe’s partial program

would remain EPA’s responsibility to

implement. Therefore, there would be

no loss of overall program coverage,

since the Tribe’s partial program and the

program retained by EPA should

together constitute a full RCRA Subtitle

C program.

EPA requests comment on the

proposal to subject Indian Tribe’s partial

programs to the same review standards

and schedules for program

modifications that apply currently to

States. The Agency is particularly

interested in comments that suggest

ways to reduce the potential for

confusion in implementing the review

of partial programs and in defining

Tribes’ responsibilities to update their

partial programs.

V. Other Regulatory Requirements

A. Compliance with Executive Order

Under Executive Order 12866 [58 FR

51735 (October 4, 1993)], EPA must

determine whether the regulatory action

is ‘‘significant’’ and therefore subject to

Office of Management and Budget

(OMB) review and the requirements of

the Executive Order. The order defines

‘‘significant regulatory action’’ as one

that is likely to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, productivity, competition,

jobs, the environment, public health or

safety, or state, local or Tribal

governments or communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

EPA believes that today’s proposed

rule raises a novel policy issue, one

which arises out of the President’s

priority to build relationships with

Tribal governments.

EPA has concluded that this rule is

‘‘significant’’ and is therefore subject to

OMB review pursuant to Executive

Order 12866. In addition, EPA believes

that today’s proposed rule is consistent

with the regulatory philosophy and

principles identified in the Executive

Order.

B. Regulatory Flexibility Act

Section 603 of the Regulatory

Flexibility Act (the Act) (15 U.S.C. 8091

et seq. Pub. L. 96–534, September 19,

1980) requires EPA to prepare and make

available for comment a regulatory

flexibility analysis in connection with

rulemaking. The initial regulatory

flexibility analysis must describe the

impact of a proposed rule on small

business entities. If, however, a

regulation will not have a significant

impact on a substantial number of small

business entities, no such analysis is

required.

EPA has determined that this

proposal will not impact significantly a

substantial number of small business

entities. Therefore, a regulatory

flexibility analysis is not required.

EPA’s determination of no significant

impact is based on the fact that this

proposal affects only the determination

of what government entity shall

administer the RCRA program in Indian

country. It does not affect the regulatory

requirements to which hazardous waste

management facilities, including any

small business entities, are subject.

This proposed regulation, if

promulgated, does not require the

Indian Tribes to obtain authorization to

operate a hazardous waste program. The

decision whether to obtain

authorization rests with each individual

Indian Tribe. If a Tribe determines that

obtaining authorization to operate a

hazardous waste program will not be

advantageous, including economically

advantageous, to the Tribe, the Tribe

may decide not to seek authorization. In

addition, EPA believes that the number

of Indian Tribes that will apply for

authorization to operate a hazardous

waste program under this proposed rule,

if promulgated, will be small as

compared with the total number of

Indian Tribes potentially eligible for

authorization.

Notwithstanding the voluntary nature

of the authorization, the Agency also

considers alternatives to a full program

authorization. As an alternative to

obtaining authorization to operate a full

hazardous waste program, the Agency is

proposing to allow a Tribe to apply for

and receive authorization to operate a

partial hazardous waste program.

Allowing a Tribe the option to apply for

and obtain authorization to operate a

partial hazardous waste program will

lessen the impact, if any, on the Tribe

as a result of this proposed rule.

The proposed regulation will not have

a significant adverse impact on a

substantial number of small businesses

or small organizations. Since RCRA

already imposes requirements on all

owners and operators of hazardous

waste treatment, storage, and disposal

facilities in Indian country, EPA

believes that the proposed rule, if

promulgated, will not add requirements

beyond those already imposed under

the Federal RCRA requirements.

Although it is conceivable that an

Indian Tribe could impose greater

requirements upon an owner or operator

of a hazardous waste facility, such

situations are likely to be rare.

Moreover, any additional impacts,

including economic impacts, resulting

from implementation of this proposed

rule, if promulgated, is expected to be

negligible, since Tribal regulation of

these activities is limited to areas within

Tribal jurisdiction.

Therefore, pursuant to section 605(b)

of the Regulatory Flexibility Act, 5

U.S.C. 605(b), the Administrator

certifies that this proposed rule will not

have a significant economic impact on

a substantial number of small entities.

C. Paperwork Reduction Act

The information collection

requirements in this proposed rule have

been submitted for approval to the

Office of Management and Budget

(OMB) under the Paperwork Reduction

Act, 44 U.S.C. 3501 et seq. An

Information Collection Request (ICR)

document has been prepared by EPA

(ICR No. 1778.01) and a copy may be

obtained from Sandy Farmer, OPPE

Regulatory Information Division; U.S.

Environmental Protection Agency

(2137); 401 M St., SW., Washington, DC

20460 or by calling (202) 260–2740.

In order to extend to Indian Tribes the

opportunity to become authorized to

administer hazardous waste programs in

lieu of EPA, EPA needs to make a

determination that the proposed

program fully meets federal criteria. In

general, to obtain authorization, Tribes

must meet the same criteria as the States

as outlined in 40 CFR part 271,

including a demonstration of capability,

which is assessed in the same manner

as those from States.

To make a final determination, EPA

must collect information in the form of

an application from Tribes. Pursuit of

authorization is entirely voluntary, and

the universe of respondents involved in

this information collection will be

limited to those Tribes seeking approval

of their hazardous waste programs.

However, interested Tribes must submit

all of the required information to EPA

in order for EPA to make a final

determination. The information which

Tribes would submit is public

information; therefore, no problems of

confidentiality or sensitive questions

arise.

Each respondent would only have to

respond once, and the EPA is estimating

the number of responses at six per year

for the three year period covered by this

ICR, for a total of eighteen. The
Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Proposed Rules 30485

projected annual cost and hour burden

per respondent for the submittal of an

application is approximately 358 hours,

at a cost of $7,990. The projected totals

for all eighteen estimated respondents

over three years are approximately 6,444

hours and $143,832. In addition, cost

estimates for the annual respondent

reporting and recordkeeping per

respondent range from $219 (low end)

to $6,369 (high end). The projected

respondent reporting and recordkeeping

total range, also with six respondents a

year for three years, is from $3,942 to

$114,642.

These costs represent start-up or

capital costs. There are no operation and

maintenance reporting or purchase of

services costs associated with the

proposed RCRA Subtitle C Indian

Authorization Rule. Given these

parameters, the bottom line respondent

burden and cost estimate is for 6,444

hours and ranges from $147,774 to

$258,474 over three years.

Burden means the total time, effort, or

financial resources expended by persons

to generate, maintain, retain, or disclose

or provide information to or for a

Federal agency. This includes the time

needed to review instructions; develop,

acquire, install, and utilize technology

and systems for the purposes of

collecting, validating, and verifying

information, processing and

maintaining information, and disclosing

and providing information; adjust the

existing ways to comply with any

previously applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; search data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information.

An Agency may not conduct or

sponsor, and a person is not required to

respond to a collection of information

unless it displays a currently valid OMB

control number. The OMB control

numbers for EPA’s regulations are listed

in 40 CFR part 9 and 48 CFR ch. 15.

Comments are requested on the

Agency’s need for this information, the

accuracy of the provided burden

estimates, and any suggested methods

for minimizing respondent burden,

including through the use of automated

collection techniques. Send comments

on the ICR to the Director, OPPE

Regulatory Information Division; U.S.

Environmental Protection Agency

(2137); 401 M St., SW., Washington, DC

20460; and to the Office of Information

and Regulatory Affairs, Office of

Management and Budget, 725 17th St.,

NW., Washington, DC 20503, marked

‘‘Attention: Desk Officer for EPA.’’

Include the ICR number in any

correspondence. Since OMB is required

to make a decision concerning the ICR

between 30 and 60 days after June 14,

1996, a comment to OMB is best assured

of having its full effect if OMB receives

it by July 15, 1996. The final rule will

respond to any OMB or public

comments on the information collection

requirements contained in this proposal.

D. Unfunded Mandates Reform Act

Under section 202 of the Unfunded

Mandates Reform Act of 1995 (the Act),

Pub. L. 104–4, which was signed into

law on March 22, 1995, EPA generally

must prepare a written statement for

rules with Federal mandates that may

result in estimated costs to State, local,

and tribal governments in the aggregate,

or to the private sector, of $100 million

or more in any one year. When such a

statement is required for EPA rules,

under section 205 of the Act EPA must

identify and consider alternatives,

including the least costly, most 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. Tribal requests for

authorization of their RCRA Subtitle C

programs are voluntary and impose no

Federal intergovernmental mandate

within the meaning of the Act. Rather,

by having its hazardous waste program

authorized, a Tribe gains the authority

to implement its hazardous waste

program in lieu of the federal hazardous

waste program within its jurisdiction.

Thus, because today’s rule does not

constitute a ‘‘Federal intergovernmental

mandate’’ under the Act, EPA has not

conducted the analyses required by

section 202 and 205 of the Act.

As to section 203 of the Act, the

authorization of a Tribal program will

not significantly or uniquely affect small

governments other than the applicants.

As to the applicants, Tribes have

received notice of the requirements of

an authorized program (through this

rulemaking process), and will have

meaningful and timely input into the

development of their individual

program requirements throughout the

authorization process. The Tribes

therefore are fully informed as to

compliance with the authorized

program. Thus, any applicable

requirements of section 203 of the Act

have been satisfied.

List of Subjects

40 CFR Part 35

Environmental protection, Hazardous

waste.

40 Parts 270 and 271

Environmental protection,

Administrative practice and procedure,

Hazardous waste, Indians-lands,

Reporting and recordkeeping

requirements.

Dated: May 20, 1996.

Carol M. Browner,

Administrator.

Therefore, it is proposed that 40 CFR

parts 35, 270 and 271 be amended as

follows:

PART 35—STATE, TRIBAL AND

LOCAL ASSISTANCE

Subpart A—Financial Assistance for

Containing Environmental Programs

1. The authority citation for part 35,

subpart A, continues to read as follows:

Authority: Secs. 105 and 301(a) of the

Clean Air Act, as amended (42 U.S.C. 7405

and 7601(a)); secs. 106, 205(g), 205(j), 208,

319, 501(a), and 518 of the Clean Water Act,

as amended (33 U.S.C. 1256, 1285(g), 1285(j),

1288, 1361(a) and 1377); secs. 1443, 1450,

and 1451 of the Safe Drinking Water Act (42

U.S.C. 300j–2, 300j–9, and 300–11); secs.

2002(a) and 3011 of the Solid Waste Disposal

Act, as amended by the Resource

Conservation and Recovery Act of 1976 (42

U.S.C. 6912(a), 6931, 6947, and 6949); and

secs. 4, 23, and 25(a) of the Federal

Insecticide, Fungicide and Rodenticide Act,

as amended (7 U.S.C. 136(b), 136(u) and

136w(a)).

2. Section 35.105 is amended by

adding a sentence to the end of the

definition of ‘‘Eligible Indian Tribe,’’

and by revising the definition of ‘‘Indian

Tribe’’ to read as follows:

§ 35.105 Definitions.

* * * * *

Eligible Indian Tribe means, * * *

For purposes of the Resource

Conservation and Recovery Act Subtitle

C, any federally recognized Indian Tribe
30486 Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Proposed Rules

that meets the requirements set forth at

§ 35.515.

* * * * *

Indian Tribe means, for purposes of

the Public Water System Supervision,

Underground Water Source Protection,

or Hazardous Waste Management grants,

any Indian Tribe, band, group, or

community recognized by the Secretary

of the Interior and having a

governmental body carrying out

substantial governmental duties or

powers over a defined area. For

purposes of grants under the Clean

Water Act, the term ‘‘Indian Tribe’’

means any Indian Tribe, band, group, or

community recognized by the Secretary

of the Interior and having a

governmental body exercising

substantial governmental duties and

powers over a Federal Indian

reservation.

* * * * *

§ 35.500 [Amended]

3. In § 35.500 by removing the words

‘‘(as defined in section 1004 of the

Act).’’

4. Section 35.515 is added under the

heading ‘‘Hazardous Waste

Management’’ (Section 3011) to read as

follows:

§ 35.515 Eligible Indian Tribes.

The Regional Administrator may

award Resource Conservation and

Recovery Act section 3011(a) grants to

Indian Tribes that meet the definition of

‘‘Indian Tribe’’ set forth in 40 CFR

35.105 and that have submitted the

information described at 40 CFR

271.27(a)(3)(ii).

PART 270—EPA ADMINISTERED

PERMIT PROGRAMS: THE

HAZARDOUS WASTE PERMIT

PROGRAM

The authority citation for part 270

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912, 6924,

6925, 6927, 6939, and 6974.

5. In § 270.2, by revising the

definition of ‘‘State,’’ and by adding in

alphabetical order definitions for

‘‘Indian Tribes’’ and ‘‘Indian country’’ to

read as follows:

§ 270.2 Definitions.

* * * * *

Indian country means: (1) All lands

within the limits of any Indian

reservation under the jurisdiction of the

United States Government,

notwithstanding the issuance of any

patent, and including rights-of-way

running through the reservation;

(2) All dependent Indian communities

within the borders of the United States

whether within the original or

subsequently acquired territory thereof,

and whether within or without the

limits of a State; and

(3) All Indian allotments, the Indian

titles to which have not been

extinguished, including rights of way

running through the same.

* * * * *

Indian Tribe means any Indian Tribe,

band, nation, or community that is

recognized by the Secretary of the

Interior and that has a governmental

body exercising substantial

governmental duties and powers.

* * * * *

State means any of the 50 States, the

District of Columbia, Guam, the

Commonwealth of Puerto Rico, the

Virgin Islands, American Samoa, and

the Commonwealth of the Northern

Mariana Islands. For purposes of

Sections 3006 and 3011 of RCRA, the

term State also extends to Indian Tribes.

* * * * *

PART 271—REQUIREMENTS FOR

AUTHORIZATION OF STATE AND

TRIBAL HAZARDOUS WASTE

PROGRAMS

The authority citation for part 271

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a) and

6926.

6. In § 271.1 by revising paragraph (h)

and adding paragraph (k) to read as

follows:

§ 271.1 Purpose and scope.

* * * * *

(h) Partial State programs are not

allowed for programs operating under

RCRA final authorization, except as

provided in § 271.27 for partial

programs operated by Indian Tribes.

However, in many cases States will lack

authority to regulate activities in Indian

country. This lack of authority does not

impair a State’s ability to obtain full

program authorization in accordance

with this subpart, i.e., inability of a

State to regulate activities in Indian

country does not constitute a partial

State program. EPA will administer the

program in Indian country if neither the

State or Indian Tribe has program

authority.

* * * * *

(k) The substantive provisions and

procedures specified in this subpart for

State program submissions, and for

EPA’s approving, revising, and

withdrawing authorization of State

programs apply to programs operated by

Indian Tribes. Additional substantive

and procedural requirements that are

applicable only to programs operated by

Indian Tribes are set forth at § 271.27 of

this subpart.

7. By adding § 271.27 to read as

follows:

§ 271.27 Requirements for Indian Tribe

Programs.

(a) The substantive requirements and

procedures established in Subpart A for

State hazardous waste programs shall

apply to Indian Tribe programs, except

that:

(1) The disallowance of partial RCRA

programs contained in § 271.1(h) shall

not apply to partial Indian Tribe

programs that meet the criteria in

paragraph (b) of this section.

(2) The Tribal Chairman or equivalent

official shall be substituted for the

Governor of the State in requesting

program authorization under

§ 271.5(a)(1).

(3) (i) The Program Description

discussed in § 271.6 shall also include

a map, legal description, or other

information sufficient to identify the

geographical extent of the Indian

country over which the Indian Tribe

seeks jurisdiction. This information

shall also identify the location of any

generator, transporter, and treatment,

storage, or disposal facility subject to

RCRA Subtitle C requirements.

(ii) The Program Description

discussed in § 271.6 shall also include

a demonstration that the Tribe; is

recognized by the Secretary of the

Interior; has an existing government

exercising substantial governmental

duties and powers; has adequate civil

regulatory jurisdiction over the subject

matter and entities to be regulated; and

is reasonably expected to be capable of

administering the federal environmental

program for which it is seeking

authorization. If the Administrator has

previously determined that a Tribe has

met these prerequisites for another EPA

program authorization, then that Tribe

need provide only that information

unique to the RCRA hazardous waste

program.

(4) (i) The Tribal Legal Certification

(the equivalent to the Attorney General’s

Statement described in § 271.7) shall be

submitted and signed by the Tribal

attorney or by an equivalent official

retained by the Indian Tribe for

representation in matters before EPA or

the courts pertaining to the Indian

Tribe’s program. The Certification shall

include an assertion that the attorney

has the authority to represent the Tribe

with respect to the Tribe’s authorization

application.

(ii) Where an Indian Tribe asserts its

jurisdiction over activities on nonmember fee lands within the boundaries

of a reservation, the Tribal Legal
Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Proposed Rules 30487

Certification shall clearly identify the

activities and areas affected by that

claim. The Tribal Legal Certification

shall also include an analysis of the

Tribe’s authority to implement the

permitting and enforcement provisions

of subpart C on those non-member fee

lands.

(5) The Memorandum of Agreement

described in § 271.8 shall be executed

by the Indian Tribe’s counterpart to the

State Director; e.g. the Director of the

Tribal Environmental Office, Program or

Agency. Indian Tribes are not required

to meet the requirements of

§ 271.16(a)(3)(ii) for the purposes of

criminal authority over non-Indians or

for the purposes of imposing criminal

fines over $5,000.00. The Memorandum

of Agreement required in 271.8 shall

include a provision for the timely and

appropriate referral to the Regional

Administrator for those criminal

enforcement matters where that Tribe

does not have authority (i.e., those

addressing criminal violations by nonIndian or violations meriting penalties

over $5,000.00). The Agreement shall

also identify any enforcement

agreements that may exist between the

Tribe and any State.

(b) Indian Tribes may apply for and

receive authorization from EPA to

operate a partial RCRA program. A

partial program may be approved when

the Indian Tribe’s application

demonstrates to EPA’s satisfaction that

the following factors are present:

(1) The composition and size of the

Indian Tribe’s regulated community

warrant the development and operation

of a partial program.

(2) The components for which the

Indian Tribe seeks authorization are

severable from the remainder of the

program retained by EPA, so that the

respective roles and responsibilities of

the Indian Tribe and EPA will be

reasonably ascertainable and

implementable.

(3) The program components

applicable to the Indian Tribes’

regulated community that would be

retained by EPA, reasonably require a

special expertise that is not readily

available to the Indian Tribe.

(4) The program components for

which the Indian Tribe seeks

authorization define a bona-fide and

significant hazardous waste

management program for which the

Indian Tribe possesses the capability to

implement and manage.

(c) A partial RCRA program may not

be approved under paragraph (b) of this

section, unless it includes, at a

minimum, counterparts to the following

Federal program requirements:

(1) Appropriate definitions in 40 CFR

part 260.

(2) Waste identification requirements

of 40 CFR part 261.

(3) Generator requirements set forth in

40 CFR parts 262 and 268.

(4) Transporter requirements

contained in 40 CFR part 263.

(5) Facility permitting standards in 40

CFR part 264, appropriate for the types

of hazardous waste management

facilities within the Indian Tribe’s

jurisdiction. However, specific facility

permitting standards may be waived if

EPA has retained permit issuance

authority for the treatment, storage, and

disposal facilities within the Tribe’s

jurisdiction.

(d) When a partial RCRA program is

approved under this section, EPA

retains direct implementation and

enforcement responsibilities for those

program components which are not

included in the Indian Tribe’s approved

program.

(e) The provisions of § 271.21 on

program revisions apply to Indian Tribe

programs, except that an Indian Tribe’s

obligation to modify its authorized

program to address subsequent Federal

program changes extends only to those

Federal program changes that directly

affect the components of the Indian

Tribe’s authorized program. Subsequent

Federal program changes promulgated

under non-HSWA authority shall not

take effect in an authorized Indian Tribe

until the Indian Tribe has adopted the

change under its laws and EPA has

approved the program revision.

However, amendments to HSWA

provisions for which a Tribe is not

authorized shall take effect under

Federal authority immediately upon the

effective date of the rule.

[FR Doc. 96–15186 Filed 6–13–96; 8:45 am]

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