Campo Band of Mission Indians; Tentative Adequacy Determination of Tribal Municipal Solid Waste Permit Program

ENVIRONMENTAL PROTECTION AGENCY

[FRL-4883-3]

Campo Band of Mission Indians; Tentative Adequacy Determination

of Tribal Municipal Solid Waste Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of tentative determination on application of the Campo

Band of Mission Indians for full program adequacy determination, public

hearing and public comment period.

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SUMMARY: Section 4005(c)(1)(B) of the Resource Conservation and

Recovery Act (RCRA), as amended by the Hazardous and Solid Waste

Amendments (HSWA) of 1984, requires States to develop and implement

permit programs to ensure that municipal solid waste landfills (MSWLFs)

which may receive hazardous household waste or conditionally exempt

small quantity generator waste will comply with the revised Federal

MSWLF Criteria (40 CFR part 258). RCRA section 4005(c)(1)(C) requires

the Environmental Protection Agency (EPA) to determine whether States

have adequate permit programs for MSWLFs. EPA believes that adequate

authority exists under RCRA to allow Tribes to seek an adequacy

determination for purposes of sections 4005 and 4010.

Under separate authority of the Clean Air Act, EPA is reviewing an

application for a non-attainment area permit to construct a proposed

MSWLF on the Campo Reservation. There will be a separate public comment

period and decision on that application.

The Campo Band of Mission Indians (``Campo Band'') applied for a

determination of adequacy under section 4005 of RCRA. EPA reviewed the

Campo Band's MSWLF application and has made a tentative determination

of adequacy for those portions of the Campo Band's MSWLF permit program

that are adequate to assure compliance with the revised MSWLF Criteria.

These portions are described later in this notice. The Campo Band has

drafted revisions to the remainder of its permit program to assure

complete compliance with the revised MSWLF Criteria and gain full

approval. EPA has determined that the Campo Band's revised requirements

and emergency regulations, if fully adopted and affirmed before EPA

makes a final determination, would be adequate to ensure compliance

with the Federal Criteria.

Although RCRA does not require EPA to hold a public hearing on any

determination to approve a Tribe's MSWLF program, the Region has

scheduled a public hearing on this tentative determination. Details

appear below in the DATES section. The Campo Band's application for

program adequacy determination is available for public review and

comment.

DATES: All comments on the Campo Band's application for a determination

of adequacy must be received by the close of business on July 14, 1994.

A public hearing is scheduled for 7 p.m. to 9 p.m. June 30, 1994 in

Alpine, California. An open house is scheduled for 3 p.m. to 6 p.m. on

June 30, 1994 in Alpine to give the public an opportunity to discuss

the tentative approval before the hearing. At the hearing, EPA may

limit oral testimony to five minutes per speaker, depending on the

number of commenters. Commenters presenting oral testimony must also

submit their comments in writing at the hearing on June 30, 1994. The

hearing may adjourn earlier than 9 p.m. if all of the speakers deliver

their comments before that hour. Representatives of the Campo Band of

Mission Indians will be present at the open house and the public

hearing held by EPA on this subject.

ADDRESSES: Written comments should be sent to Ms. Christiane Camp, Mail

Code H-3-1, US EPA Region 9, 75 Hawthorne Street, San Francisco,

California 94105.

The public hearing will be held at the Alpine Elementary School

Auditorium, 1850 Alpine Blvd., Alpine, California 91901. The open house

will be held at the Alpine Elementary School Auditorium. Copies of the

Campo Band's application for adequacy determination are available at

the following addresses for inspection and copying: Campo Environmental

Protection Agency, Campo Tribal Hall, BIA Route 10, Highway 94, Campo,

California, 91906, telephone (619) 478-9369, from 9 a.m. to 4 p.m.

Mondays through Fridays; Campo Public Library, 31466 Highway 94, Campo,

California, 91906, telephone (619) 478-5945, from 9 a.m. to 1 p.m. and

1:30 to 4 Wednesdays, and 9 a.m. to 1 p.m. Fridays and Saturdays; US

EPA Region 9 Library, 75 Hawthorne Street, 13th Floor, San Francisco,

California, 94105, telephone (415) 744-1510, from 9 a.m. to 5 p.m.

Mondays through Fridays.

FOR FURTHER INFORMATION CONTACT: US EPA Region 9, 75 Hawthorne Street,

San Francisco, California 94105, Attn: Ms. Christiane Camp, Mail Code

H-3-1, telephone (415) 744-2097.

SUPPLEMENTARY INFORMATION:

A. Background

1. Solid Waste Permit Program Criteria

On October 9, 1991, EPA promulgated revised Criteria for MSWLFs (40

CFR part 258). Subtitle D of RCRA, as amended by the Hazardous and

Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. 6941-6949(a), requires

States (and, as discussed below, allows Indian Tribes) to develop

permitting programs to ensure that MSWLFs comply with the Federal

Criteria under part 258. Subtitle D also requires in section 4005 that

EPA determine the adequacy of State municipal solid waste landfill

permit programs to ensure that facilities comply with the revised

Federal Criteria. To fulfill this requirement, EPA has drafted and is

in the process of proposing a State/Tribal Implementation Rule (STIR)

that will provide procedures by which EPA will approve, or partially

approve, State/Tribal landfill permit programs. The Agency intends to

approve adequate State/Tribal MSWLF permit programs as applications are

submitted. Thus, these approvals are not dependent on final

promulgation of the STIR. Prior to promulgation of STIR, adequacy

determinations will be made based on the statutory authorities and

requirements. In addition, States/Tribes may use the draft STIR as an

aid in interpreting these requirements. EPA notes that regardless of

the approval status of a State/Tribe and the permit status of any

facility, the federal landfill criteria will apply to all permitted and

unpermitted MSWLF facilities.

EPA intends to approve State/Tribal MSWLF permit programs prior to

the promulgation of STIR. EPA interprets the requirements for States or

Tribes to develop ``adequate'' programs for permits or other forms of

prior approval to impose several minimum requirements. First, each

State/Tribe must have enforceable standards for new and existing MSWLFs

that are technically comparable to EPA's revised MSWLF criteria. Next,

the State/Tribe must have the authority to issue a permit or other

notice of prior approval to all new and existing MSWLFs in its

jurisdiction. The State/Tribe must also provide for public

participation in permit issuance and enforcement as required in section

7004(b)(1) of RCRA. Finally, EPA believes that the State/Tribe must

show that it has sufficient compliance monitoring and enforcement

authorities to take specific action against any owner or operator that

fails to comply with an approved MSWLF program.

EPA is further requesting Tribes to provide a statement of legal

authority from the Tribal Attorney General or its equivalent

demonstrating that the Tribe has adequate jurisdiction to regulate the

MSWLFs on the reservation. In addition, EPA is requesting a Tribe

seeking program approval to demonstrate that it: (1) Is federally

recognized; (2) has a government exercising substantial duties and

powers; and (3) is capable of administering a permit program. If the

Tribe has already demonstrated to EPA that it meets the first two of

these criteria in the context of the approval to operate another EPA

program, it need not do so again.

EPA is also requesting Tribes to provide an explanation of the

jurisdiction and responsibilities of all Tribal program implementing

agencies (including any State agency acting pursuant to an agreement

with the Tribe) and designation of a lead agency to facilitate

communications between EPA and the Tribe. These requests reflect the

criteria used in other environmental statutes to assess whether Tribes

may apply for program approval. If a Tribe has already provided

information and/or a legal statement on the Tribe's jurisdiction and

capability to operate another EPA program, EPA requests the Tribe to

provide only those additional material necessary to support its

application for MSWLF permit program approval.

EPA Regions will determine whether a Tribe has submitted an

adequate program based on the interpretation outlined above. EPA

expects States/Tribes to meet all of these requirements for all

elements of a MSWLF program before it gives full approval to a MSWLF

program. EPA plans to provide more specific criteria for this

evaluation when it proposes the State/Tribal Implementation Rule.

2. Tribal Programs

EPA is extending to Tribes the same opportunity to apply for permit

program approval as is available to States. Providing Tribes with the

opportunity to apply for adequacy for purposes of adopting and

implementing MSWLF permit programs is consistent with EPA's Indian

Policy. This Policy, formally adopted in 1984, recognizes Tribes as the

primary sovereign entities for regulating the reservation environment

and commits the Agency to working with Tribes on a ``government-to-

government'' basis to effectuate that recognition. A major goal of

EPA's Indian Policy is to eliminate all statutory and regulatory

barriers to Tribal assumption of Federal environmental programs.

Today's tentative determination to approve a Tribal MSWLF permit

program represents another facet of the Agency's continuing commitment

to the implementation of this long-standing policy.

EPA's interpretation of RCRA is governed by the principles of

Chevron, USA v. NRDC, 467 U.S. 837 (1984). Where Congress has not

explicitly stated its intent in adopting a statutory provision, the

Agency charged with implementing that statute may adopt any

interpretation which, in the Agency's expert judgment, is reasonable in

light of the goals and purposes of the statute as a whole. Id. at 844.

Interpreting RCRA to allow Tribes to apply for an adequacy

determination satisfies the Chevron test.

States generally are precluded from enforcing their civil

regulatory programs on Tribal lands, absent an explicit Congressional

authorization or State-Tribal agreement to do so. California v. Cabazon

Band of Mission Indians, 480 U.S. 202, 216 and n.18 (1987). Yet, under

the current statutory scheme, EPA generally is precluded from enforcing

the MSWLF criteria as well. Furthermore, Congress has not yet created

an explicit role for Tribes to implement the Subtitle D program, as it

has done under most other major environmental statutes amended since

1986 (Safe Drinking Water Act, Comprehensive Environmental Response

Compensation and Liability Act, Clean Water Act, Clean Air Act).

RCRA does not explicitly define a role for Tribes under sections

4005 and 4010 and reflects an undeniable ambiguity in Congressional

intent. Indeed, the only mention of Tribes anywhere in RCRA is in

section 1004(13), a part of the definitions of key terms in RCRA.

Section 1004(13) defines the term ``municipality'' to mean;

a city, town, borough, county, parish, district or other public body

created by or pursuant to State law, with responsibility for the

planning or administration or solid waste management, or any Indian

tribe or authorized tribal organization or Alaska Native village or

organization[.]

Id. (emphasis added). The term ``municipality'', in turn, is used

in sections 4008(a)(2) and 4009(a) of RCRA with reference to the

availability of certain Federal funds and technical assistance for

solid waste planning and management activities by municipalities. Thus,

Congress apparently intended to make explicit that Tribes could receive

funds and assistance when available in the same manner as municipal

governments. However, Congress did not explicitly recognize any other

role for Tribes under other provisions. There is no accompanying

legislative history which explains why Tribes were included in section

1004(13) and nowhere else.

EPA does not believe that Congress, by including Tribes in section

1004(13), intended to prohibit EPA from allowing Tribes to apply for an

adequacy determination under subtitle D. First of all, it is clear that

Tribes are not ``municipalities'' in the traditional sense. Tribes are

not ``public bodies created by or pursuant to State law.'' Indeed,

Tribes are not subject to State law except in very limited

circumstances. Cabazon, supra. Indian Tribes are sovereign governments

whose authority is subject only to Congressional approval. Worcester v.

Georgia, 31 U.S. (10 Pet.) 515 (1832). There is no indication in the

legislative history that Congress intended to abrogate any sovereign

Tribal authority by defining them as ``municipalities'' under RCRA,

i.e., that Congress intended section 1004(13) to subject Tribes to

State law for RCRA purposes. Moreover, it is a well-established

principle of statutory construction that Federal statutes which might

arguably abridge Tribal powers of self-government must be construed

narrowly in favor of retaining Tribal rights. F. Cohen, Handbook of

Federal Indian Law, 224 (1981); See, e.g., Ramah Navajo School Board v.

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

EPA believes that inclusion of Indian Tribes in section 1004(13)

was a definitional expedient, to avoid having to include the phrase

``and Indian tribes or tribal organizations or Alaska Native villages

or organizations'' wherever the term ``municipality'' appeared, not to

change the sovereign status of Tribes for RCRA purposes. Second, given

the limited number of times the term ``municipality'' appears in RCRA,

it does not appear that Congress intended to define an all-inclusive

role for Tribes for all potential statutory purposes.

The ambiguity in RCRA regarding Indian Tribes also is evident from

the structure of the 1984 Amendments. As mentioned earlier, Congress

expressed a strong preference for a State lead in ensuring compliance

with 40 CFR part 258, in that Section 4005(c) allows EPA to enforce the

criteria only after a finding of inadequacy of the State permit

program. Yet, the legislative history of the 1984 Amendments does not

suggest that Congress intended to authorize States to implement such

programs on Tribal lands or that Congress intended to override the

general legal principle that States generally are precluded from such

implementation. Cf. Washington Dept. of Ecology v. EPA, 752 F.2d 1465

(9th Cir. 1985) (RCRA Subtitle C does not constitute an explicit

delegation of authority to States to implement hazardous waste programs

on Indian lands); accord, Nance v. EPA1, 645 F.2d 701 (9th Cir.

1981). Thus, Congress has otherwise put States in a primary role for

the MSWLF program, yet on Indian lands has failed to define how Tribes

participate where States lack authority. EPA believes it necessary to

harmonize the conflicts and resolve the ambiguities created by these

provisions.

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\1\ By today's action EPA does not intend to prohibit a State

from applying for approval of its MSWLF program extending to Indian

lands. However, the State would either have to enter into an

agreement with a Tribe or show the existence of specific

Congressional authorization or independent civil regulatory

authority to regulate these landfills. See, e.g., 53 FR 43080 (1988)

(Washington application to regulate UIC wells on Indian lands).

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EPA concludes that interpreting Sections 4005, 4008, and 4010 to

allow Indian Tribes to seek an adequacy determination is reasonable.

Several factors enter into this determination. First, as discussed in

the previous paragraph, this approach is consistent with subtitle D

because it preserves Congressional intent to limit the Federal

government's role in MSWLF programs. Absent the opportunity to seek a

determination of adequacy, there would be few or no adequate permit

programs in place on Indian lands (because the State lacked the

authority and the Tribe could not apply for program approval),

potentially resulting in the Federal government assuming a substantial

role in MSWLF programs by having EPA enforce 40 CFR part 258 directly.

In addition to expanding the Federal role, failure to approve

Tribal programs would deny Tribes the option available to approved

States of granting their MSWLF owners and operators flexibility in

meeting the requirements of 40 CFR part 258. The revised Federal

criteria (40 CFR part 258) would be implemented without benefit of an

EPA approved permit process. All MSWLFs on Indian Lands, whether Tribal

or private, would be in a disadvantaged position relative to other

MSWLFs, being unable to take advantage of the flexibility that Congress

built into Sections 4005 and 4010 and that EPA has incorporated into 40

CFR part 258. By approving Tribal permit programs, however, MSWLFs on

Indian Lands would be under the jurisdiction of the closest sovereign

with sufficient permitting authority, i.e. the Tribe.

EPA, in accordance with its Indian Policy, has worked to ensure

that Congress revises other environmental statutes (e.g., the Clean

Water Act), at the earliest opportunity to define explicitly the role

for Tribes under these programs. Yet, EPA also has stepped in on at

least two occasions to allow Tribes to seek program approval despite

the lack of an explicit Congressional mandate. Most recently, EPA

recognized Indian Tribes as the appropriate authority under the

Emergency Planning and Community Right-to-Know Act (EPCRA), despite

silence on the Tribal role under EPCRA. 55 FR 30632 (1990). EPA

reasoned that since EPCRA has no federal role to backup State planning

activities, failure to recognize Tribes as the authority under EPCRA

would leave gaps in emergency planning on Indian lands. 54 FR 13000-

130001 (1989).

EPA filled such a statutory gap much earlier as well, even before

development of its formal Indian Policy. In 1974, EPA promulgated

regulations which authorized Indian Tribes to redesignate the level of

air quality applicable to Indian lands under the Prevention of

Significant Deterioration (PSD) program of the Clean Air Act in the

same manner that States could redesignate for other lands. See Nance v.

EPA, 645 F.2d 701 (9th Cir. 1981) (upholding regulations). EPA

promulgated this regulation despite the fact that the Clean Air Act at

that time made no reference whatsoever to Indian Tribes or their status

under the Act.2

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\2\ Congress ratified EPA's regulation in 1977 by explicitly

authorizing Tribes to make PSD redesignations; the 1990 Amendments

to the Clean Air Act authorize EPA to allow Tribes to apply for

approval to implement any programs EPA deems appropriate.

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One Court already has recognized the reasonableness of EPA's

actions in filling such regulatory gaps on Indian lands. In Nance,

supra, the U.S. Court of Appeals for the Ninth Circuit affirmed EPA's

PSD redesignation regulations described in the previous paragraph. The

Court found that EPA could reasonably interpret the Clean Air Act to

allow for Tribal redesignation, rather than allowing the States to

exercise that authority or exempting Indian lands from the

redesignation process. Id. at 713. The Court noted that EPA's rule was

reasonable in light of the general existence of Tribal sovereignty over

activities on Indian lands. Id. at 714.

Today's tentative determination to approve a tribal MSWLF permit

program is analogous to the rule upheld in Nance. EPA is proposing to

fill a gap in jurisdiction on Indian lands. As with the redesignation

program, without recognition of Tribal MSWLF programs, there would be

no acceptable way to implement at the Federal level a key statutory

provision, i.e., the MSWLF permitting process.

Furthermore, the case law supporting EPA's interpretation is even

stronger today than at the time of the Nance decision. First, the

Supreme Court reaffirmed EPA's authority to develop reasonable

controlling interpretations of environmental statutes. Chevron, supra.

Second, the Supreme Court has emphasized since Nance that Indian Tribes

may regulate activities on land belonging to the Tribe or held by the

United States in trust for the Tribe. Montana v. United States, 450

U.S. 544, 557 (1981). All land within the Campo Reservation is tribal

trust land.

In the case of MSWLFs, EPA believes that improperly maintained

MSWLFs would not be protective of human health (including that of

Tribal members) and the environment (including Indian lands). Tribes

are likely to be able to assert regulatory authority over landfills on

tribal lands to protect these interests. Allowing Tribes to seek

adequacy would reflect general principles of Federal Indian law. Thus,

as in Nance, EPA believes that allowing Tribes to apply for program

approval reflects the sovereign authority of Tribes under Federal law.

To have its MSWLF permit program deemed adequate by EPA, a tribe

must have adequate authority over the regulated activities. Indian

reservations include lands owned in fee by non-Indians. The extent of

Tribal authority to regulate activities by non-Indians on such land has

been the subject of considerable recent discussion. The test for civil

regulatory authority over nonmember lands within Indian reservations

was stated in Montana v. U.S., 450 U.S. 544, 565-66 (1981) (citations

omitted):

To be sure, Indian tribes retain inherent sovereign power to

exercise some forms of civil jurisdiction over non-Indians on their

reservations, even on non-Indian fee lands. A tribe may regulate * *

* the activities of non-members who enter consensual relationships

with the tribe or its members, through commercial dealing,

contracts, leases, or other arrangements. * * * A tribe may also

retain inherent power to exercise civil authority over the conduct

of non-Indians on fee lands within its reservation when that conduct

threatens or has some direct effect on the political integrity, the

economic security, or the health or welfare of the tribe.

In Brendale v. Confederated Tribes and Bands of the Yakima Indian

Nation, 492 U.S. 408 (1989), the Court applied this test. Both the

State of Washington and the Yakima Nation asserted authority to zone

non-Indian real estate developments on two parcels within the Yakima

reservation, one in an area that was primarily Tribal, the other in an

area where much of the land was owned in fee by nonmembers. Although

the Court analyzed the issues and the appropriate interpretation of

Montana at considerable length, the nine members split 4:2:3 in

reaching the decision that the Tribe should have exclusive zoning

authority over property in the Tribal area and the State should have

exclusive zoning authority over non-Indian owned property in the fee

area.

Specifically, the Court recognized Tribal authority over activities

that would threaten the health and welfare of the Tribe, 492 U.S. at

443-444 (Stevens, J., writing for the Court); id. at 449-450 (Blackmun,

J. concurring). Conversely, the Court found no Tribal jurisdiction

where the proposed activities ``would not threaten the Tribe's * * *

health and welfare.'' Id. at 432 (White, J., writing for the Court).

Given the lack of a majority rationale, the primary significance of

Brendale is in its result, which was fully consistent with Montana v.

United States.

In evaluating whether a Tribe has authority to regulate a

particular activity on land owned in fee by nonmembers but located

within a reservation, EPA will examine the Tribe's authority in light

of the evolving case law as reflected in Montana and Brendale and

applicable Federal law. The extent of such Tribal authority depends on

the effect of that activity on the Tribe. As discussed above, in the

absence of a contrary statutory policy, a Tribe may regulate the

activities of non-Indians on fee lands within its reservation when

those activities threaten or have a direct effect on the political

integrity, the economic security, or the health or welfare of the

Tribe. Montana, 450 U.S. at 565-66. For further discussion of this

issue see 56 FR 64876.

However, in Brendale several justices argued that for a Tribe to

have ``a protectable interest'' in an activity, the activity's effect

should be ``demonstrably serious * * *.'' Brendale, 492 U.S. at 431

(White, J.). In addition, in a more recent case involving Tribal

criminal jurisdiction, a majority of the Court indicated in dicta that

a Tribe may exercise civil authority ``where the exercise of tribal

authority is vital to the maintenance of tribal integrity and self-

determination.'' Duro v. Reina, 110 S.Ct. 2053, 2061 (1990). See also

Brendale, 492 U.S. at 450 (Blackmun, J.) (test for inherent Tribal

authority whether activities ``implicate a significant tribal

interest''); id. at 462 (Blackmun, J.) (test for inherent Tribal

authority whether exercise of authority ``fundamental to the political

and economic security of the tribe * * *'').

As discussed above, the Supreme Court, in recent cases, has

explored several options to assure that the impacts upon Tribes of the

activities of non-Indians on fee land, under the Montana test, are more

than de minimis, although to date the Court has not agreed, in a case

on point, on any one reformulation of the test. In response to this

uncertainty, the Agency will apply, as an interim operating principle,

a formulation of the standard that will require a showing that the

potential impacts of regulated activities of non-members on the Tribe

are serious and substantial.

The choice of an Agency operating principle containing this

standard is taken solely as a matter of prudence in light of judicial

uncertainty and does not reflect an Agency endorsement of this standard

per se. Moreover, as discussed below, the Agency believes that the

activities regulated under the various environmental statutes generally

have serious and substantial impacts on human health and welfare. As a

result, the Agency believes that Tribes usually will be able to meet

the Agency's operating principle, and that use of such a test by the

Agency should not create an improper burden of proof on Tribes or

create the administratively undesirable result of checkerboarding

reservations.

Whether a Tribe has jurisdiction over activities by nonmembers will

be determined case-by-case, based on factual findings. The

determination as to whether the required effect is present in a

particular case depends on the circumstances. Nonetheless, the Agency

also may take into account the provisions of environmental statutes and

any legislative findings that the effects of the activity are serious

in making a generalized finding that Tribes are likely to possess

sufficient inherent authority to control reservation environmental

quality. See, e.g., Keystone Bituminous Coal Ass'n v. DeBenedictis, 480

U.S. 470, 476-77 and nn.6, 7 (1987). As a result, in making the

required factual findings as to the impact of a solid waste activity on

a particular Tribe, it may not be necessary to develop an extensive and

detailed record in each case. The Agency also may rely on its special

expertise and practical experience regarding the importance of solid

waste management.

The Agency believes that Congressional enactment of RCRA

establishes a strong Federal interest in effective management of solid

waste. EPA also notes that, where solid waste affects ground water

which has pathways that allow it to migrate readily, it would be

practically very difficult to separate out the effects of solid waste

disposal on non-Indian fee land within a reservation from those on

Tribal portions. In other words, any environmental impairment that

occurs on, or as a result of, activities on non-Indian fee lands is

very likely to impair Tribal lands. This also suggests that the serious

and substantial effects of solid waste within the non-Indian portions

of a reservation are very likely to affect Tribal health and welfare.

EPA believes that a ``checkerboard'' system of regulation, whereby the

Tribe and State split up regulation of solid waste on the Indian Lands,

would exacerbate the difficulties of assuring compliance with RCRA

requirements.

The Agency also believes that the effects on Tribal health and

welfare necessary to support Tribal regulation of non-Indian activities

on Indian Lands may be easier to establish in the context of

environmental regulation than with regard to zoning, which was at issue

in Brendale. There is a significant distinction between land use

planning and environmental regulation of solid waste under RCRA. The

Supreme Court has explicitly recognized such a distinction: ``Land use

planning in essence chooses particular uses for the land; environmental

regulation does not mandate particular uses of the land but requires

only that, however the land is used, damage to the environment is kept

within prescribed limits.'' California Coastal Comm'n v. Granite Rock

Co., 480 U.S. 572, 587 (1987). The Court has relied on this distinction

to support a finding that States retain authority to carry out

environmental regulation even in cases where their ability to carry out

general land use regulation is preempted by federal law. Id. at 587-89.

Further, management of solid waste serves the purpose of protecting

public health and safety, which is a core governmental function, whose

exercise is critical to self-government. The special status of

governmental actions to protect public health and safety is well

established.3 By contrast, the power to zone can be exercised to

achieve purposes which have little or no direct nexus to public health

and safety. See, e.g., Brendale, 492 U.S. at 420 n.5 (White, J.)

(listing broad range of consequences of state zoning decision).

Moreover, solid waste may affect ground water, which is mobile, freely

migrating from one local jurisdiction to another, sometimes over large

distances. By contrast, zoning regulates the uses of particular

properties with impacts that are much more likely to be contained

within a given local jurisdiction.

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\3\This special status has been reaffirmed by all nine justices

in the context of Fifth Amendment takings law. See Keystone

Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 491 n. 20

(1987); id. at 512 (Rehnquist, C.J., dissenting).

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Operationally, EPA's generalized findings regarding the

relationship of solid waste management to Tribal health and welfare

will affect the legal analysis of a Tribal submission by, in effect,

supplementing the factual showing a Tribe makes in applying for program

approval. Thus, a Tribal submission regarding jurisdiction on fee lands

will need to make a relatively simple showing of facts that there is or

may be solid waste within the meaning of Subtitle D on the reservation

and that the Tribe or Tribal members could be subject to exposure to

that waste. The Tribe also must explicitly assert that activities of

non-Indians regarding that waste would have a serious and substantial

effect on the health and welfare of the Tribe. Once the Tribe meets

this initial burden, EPA will, in light of the facts presented by the

Tribe and the generalized statutory and factual findings regarding the

importance of solid waste discussed above, presume that there has been

an adequate showing of Tribal jurisdiction on fee lands, unless an

appropriate governmental entity (e.g., an adjacent Tribe or State)

demonstrates a lack of jurisdiction on the part of the Tribe.

The Agency recognizes that jurisdictional disputes between Tribes

and States can be complex and difficult. However, EPA's ultimate

responsibility is protection of the environment. In view of the

mobility of environmental problems, and the interdependence of various

jurisdictions, it is imperative that all affected sovereigns work

cooperatively for environmental protection.

For purposes of this determination, Tribe is defined to mean any

Indian tribe, band, nation, or other organized group or community which

is recognized by the Secretary of the Interior or Congress and which

exercises substantial governmental duties and powers over any area.

While the definition of Tribes in today's determination does not

explicitly include Alaska Native Villages, EPA has not determined that

such entities are ineligible to apply for permit program approval.

Alaska Native entities (e.g., villages) may apply for permit program

approval. Alaska Native Villages that demonstrate that their permit

programs meet the requirements of today's proposal will be deemed

adequate.

B. Campo Band of Mission Indians

On February 15, 1994, the Campo Band submitted an application for

adequacy determination. EPA reviewed the Campo Band's application and

tentatively determined that the following portions of the Tribe's

Subtitle D program will ensure compliance with the revised Federal

Criteria:

1. General criteria governing scope and applicability, definitions,

and consideration of other federal laws (40 CFR 258.1, 258.2, 258.3);

2. Location restrictions for airport safety, floodplains, wetlands,

fault areas, seismic impact zones, unstable areas, and closure of

existing units (40 CFR 258.10, 258.11, 258.12, 258.13, 258.14, 258.15,

and 258.16);

3. Operating criteria for exclusion of hazardous waste, cover

material requirements, disease vector control, explosive gases control,

air criteria, access requirements, run-on/run-off control systems,

surface water requirements, liquids restrictions, and recordkeeping

requirements (40 CFR 258.20, 258.21, 258.22, 258.23, 258.24, 258.25,

258.26, 258.27, 258.28, and 258.29);

4. Design criteria (40 CFR 258.40);

5. Groundwater monitoring and corrective action criteria governing

applicability (40 CFR 258.50);

6. Closure and post-closure care requirements (40 CFR 258.60 and

258.61);

7. Financial assurance criteria governing applicability and

effective date, and allowable mechanisms (40 CFR 258.70 and 258.74).

Not all States/Tribes will have existing permit programs through

which they can ensure compliance with all provisions of the revised

Federal Criteria. Were EPA to restrict a State/Tribe from submitting

its application until it could ensure compliance with the entirety of

40 CFR part 258, many States/Tribes would need to postpone obtaining

approval of their permit programs for a significant amount of time.

This delay in determining the adequacy of the State/Tribal permit

program while the State/Tribe revises its statutes, codes or

regulations could impose a substantial burden on owners and operators

of landfills because the State/Tribes would be unable to exercise the

flexibility available to States/Tribes with permit programs which have

been approved as adequate.

The Campo Band needs to revise aspects of its permit program to

ensure compliance with the following provisions of the Federal

Criteria:

1. Groundwater monitoring and corrective action criteria for

groundwater monitoring systems, sampling and analysis requirements,

detection monitoring program, assessment monitoring program, and

corrective action implementation (40 CFR 258.51, 258.53, 258.54,

258.55, and 258.58). Although existing CEPA regulations ensure

compliance with the federal assessment of corrective measures and

selection of remedy requirements (40 CFR 258.56 and 258.57) in and of

themselves, it would be impossible to separate compliance with these

portions of CEPA's regulations from the rest of CEPA's groundwater

monitoring program. Therefore, if CEPA does not fully adopt draft

regulatory changes to the groundwater monitoring systems, sampling and

analysis requirements, detection monitoring program, assessment

monitoring program, and corrective action implementation requirements,

EPA cannot approve CEPA for the assessment of corrective measures and

selection of remedy portions of its program.

2. Financial assurance criteria for closure, post-closure and

corrective action (40 CFR 258.71, 258.72, and 258.73).

The Campo Band submitted an amendment to its application for

program adequacy determination on April 18, 1994. The Campo Band's

amendment included draft revised requirements for those parts of the

Campo Band's existing program that are not adequate to ensure

compliance with the federal criteria. EPA Region 9 reviewed the Campo

Band's amendment to its application and determined that these draft

regulatory requirements would be adequate to ensure compliance with the

Federal Criteria.

If the draft regulatory requirements submitted to EPA on April 18,

1994 are fully adopted before EPA makes a final determination, then EPA

proposes to fully approve the Campo Band's MSWLF program. If all the

necessary draft regulatory requirements are not adopted with the

relevant effective dates or are adopted with altered language that

would not clearly assure compliance with the Federal Criteria, then EPA

proposes to partially approve the Campo Band's program. Partial

approval would only be for those portions of the Campo Band program

that assure compliance with the Federal Criteria.

In addition, before EPA grants partial or full program approval,

the Campo Band must reaffirm the February 13, 1994 promulgation of the

emergency regulations submitted with the Campo Band's February 15, 1994

final application. Although the Campo Band's emergency regulations are

currently in effect, they remain in effect only 180 days after February

13, 1994 unless the original promulgation is affirmed. The emergency

regulations must be affirmed without altered language that would not

clearly assure compliance with the Federal Criteria in order for EPA to

approve those portions of the Campo Band program governed by the

emergency regulations.

The Campo Band has demonstrated that the Campo Band of Mission

Indians is a Federally recognized Tribe. See 53 FR 52830 (December 29,

1988). The Constitution (the ``Constitution'') of the Campo Band of

Mission Indians establishes a General Council that serves as the Campo

Band's governing body and enumerates the Council's powers and

responsibilities. Among the enumerated powers, the Constitution

authorizes the General Council to establish subordinate entities for

the Band and, by appropriate ordinances and resolutions, to delegate to

such subordinate entities any of the powers and duties of the General

Council. Pursuant to this power under the Constitution and by

Resolution No. 88-005, the General Council established the Campo

Environmental Protection Agency (CEPA) for the purpose of protecting

public health and safety and the environment. CEPA is charged with the

administration and enforcement of the solid waste management permitting

and regulatory compliance programs.

All land within the Campo Reservation is tribal trust land. The

Campo Band has established that the Campo Band of Mission Indians has

adequate jurisdiction over the land of the Campo Reservation based on

general principles of Tribal sovereignty, the Band's status as a

``federally recognized Indian Tribe,'' the Tribal Constitution, a map

and narrative description which established the boundaries of the

Reservation and copies of Tribal codes and regulations.

In making today's tentative determination that the Campo Band's

MSWLF permit program is adequate, the Agency has tentatively determined

that the Tribe has adequate authority over the activities regulated by

such a program. In its application, the Campo Band has also

demonstrated that it has adequate resources to manage a MSWLF permit

program and adequate authority to issue permits, ensure compliance

monitoring and enforcement, and to provide for intervention in civil

enforcement proceedings.

Region 9 will hold a public hearing on this determination from 7

p.m. to 9 p.m. June 30, 1994 at the Alpine Elementary School

Auditorium, 1850 Alpine Blvd., Alpine, California, 91901. An open house

is scheduled for 3 p.m. to 6 p.m. on June 30, 1994 at the Alpine

Elementary School Auditorium to give the public an opportunity to

discuss the tentative approval before the hearing. The public may

submit written comments on EPA's tentative determination until the

close of the public comment period July 14, 1994. Copies of the Campo

Band's application and supporting documents are available for

inspection and copying at the locations indicated in the ``Addresses''

section of this notice.

EPA will consider all public comments on its tentative

determination received during the public comment period and public

hearing. Issues raised by those comments may be the basis for a

determination of adequacy or inadequacy for the Campo Band's program.

EPA will make a final determination on whether or not to approve the

Campo Band's program and will give notice of it in the Federal

Register. The notice will include a summary of the reasons for the

final determination and a response to all major comments.

Section 4005(a) of RCRA provides that citizens may use the citizen

suit provisions of section 7002 of RCRA to enforce the Federal MSWLF

criteria in 40 CFR part 258 independent of any State/Tribal enforcement

program. As EPA explained in the preamble to the final MSWLF criteria,

EPA expects that any owner or operator complying with provisions in a

State/Tribal program approved by EPA should be considered to be in

compliance with the Federal Criteria. See 56 FR 50978, 50995 (October

9, 1991).

Compliance With Executive Order 12866

The Office of Management and Budget has exempted this notice from

the requirements of section 6 of Executive Order 12866.

Certification Under the Regulatory Flexibility Act

Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify

that approval of the Tribal MSWLF permit program will not have a

significant economic impact on a substantial number of small entities.

It does not impose any new burdens on small entities. This notice,

therefore, does not require a regulatory flexibility analysis.

Authority

This notice is issued under the authority of sections 2002, 4005

and 4010(c) of the Solid Waste Disposal Act as amended; 42 U.S.C. 6912,

6945, 6949a(c).

Dated: April 29, 1994.

Felicia Marcus,

Regional Administrator.

[FR Doc. 94-11085 Filed 5-10-94; 8:45 am]

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