ENVIRONMENTAL PROTECTION AGENCY ENVIRONMENTAL PROTECTION AGENCY

ENVIRONMENTAL PROTECTION AGENCY

ENVIRONMENTAL PROTECTION AGENCY

[FRL-4860-7]

South Dakota; Tentative Determination of Adequacy of State's

Municipal Solid Waste Permit Program over Non-Indian Lands for the

Former Lands of the Yankton Sioux, Lake Traverse (Sisseton-

Wahpeton) and Parts of the Rosebud Indian Reservations

AGENCY: Environmental Protection Agency (Region 8).

ACTION: Notice of tentative determination on application of the State

of South Dakota for program adequacy determination, public comment

period and public hearing.

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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, but does not mandate

issuance of a rule for such determinations. 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 the STIR, adequacy

determinations will be made based on the statutory authorities and

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

aid in interpreting these requirements. The Agency believes that early

approvals have an important benefit. Approved State/Tribe permit

programs provide for interaction between the State/Tribe and the owner/

operator regarding site-specific permit conditions. Only those owners/

operators located in States/Tribes with approved permit programs can

use the site-specific flexibility provided by part 258 to the extent

the State/Tribal permit program allows such flexibility. 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 MSWLFs.

The State of South Dakota applied for a determination of adequacy

under section 4005 of RCRA for jurisdiction over non-Indian lands for

the former lands of the Yankton Sioux Reservation, Lake Traverse

(Sisseton-Wahpeton) Reservation and parts of the Rosebud Indian

Reservation lying within Gregory, Tripp, Lyman and Mellette Counties.

EPA has reviewed South Dakota's application and has made a tentative

determination that the South Dakota application is adequate for all

lands, other than Indian Country as defined in 18 U.S.C. section 1151,

located in the following areas:

(1) Former lands of the Lake Traverse Indian Reservation of the

Sisseton-Wahpeton Sioux Tribe;

(2) Former lands of the Yankton Sioux Reservation; and

(3) Former lands of the Rosebud Sioux Reservation, lying within

Gregory, Tripp, Lyman and Mellette Counties.

South Dakota's application for program adequacy determination and

the Tribal comments received in regard to that application are

available for public review and comment.

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

determination to approve any State/Tribe's MSWLF program, the Region

has tentatively scheduled a public hearing on this determination. If a

sufficient number of people express interest in participating in a

hearing by writing the Region or calling the contact given below within

30 days of the date of publication of this notice, the Region will hold

a hearing on the date given below in the ``DATES'' section. The Region

will notify all persons who submit comments on this notice if it

decides to hold the hearing. In addition, anyone who wishes to learn

whether the hearing will be held may call the person listed in the

``CONTACTS'' section below.

DATES: All comments on South Dakota's application for a determination

of adequacy must be received by the close of business on June 2, 1994.

The public hearing is tentatively scheduled for 1 p.m. to 3 p.m., June

2, 1994, at the South Dakota Department of Environment and Natural

Resources, 523 East Capitol, Floyd Matthews Training Center, Pierre,

South Dakota, 57501. Should a hearing be held, 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 by close of business on June 2, 1994. The hearing

may adjourn earlier than 3 p.m. if all of the speakers deliver their

comments before that hour. South Dakota will participate in the public

hearing held by EPA on this subject.

ADDRESSES: Copies of South Dakota's application for adequacy

determination are available from 8 a.m. to 4 p.m. at the following

addresses for inspection and copying: South Dakota Department of

Environment and Natural Resources, Office of Waste Management, Foss

Building, 523 East Capitol, Pierre, South Dakota, 57501; and USEPA

Region 8 Library, 999 18th Street, First Floor, Denver, Colorado,

80202-2466, telephone (303) 293-1444. Written comments should be sent

to Ms. Judith Wong, Mail Code 8HWM-WM, USEPA Region 8, 999 18th Street,

suite 500, Denver, Colorado, 80202-2466.

FOR FURTHER INFORMATION CONTACT: Judith Wong, Mail Code 8HWM-WM, Waste

Management Branch, USEPA Region 8, 999 18th Street, Denver, Colorado,

80202-2466, telephone (303) 293-1667.

SUPPLEMENTARY INFORMATION:

A. Background

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

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

Solid Waste Amendments of 1984 (HSWA), requires States 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, the Agency has drafted

and is in the process of proposing a State/Tribal Implementation Rule

(STIR). The rule will specify the requirements which State/Tribal

programs must satisfy to be determined adequate.

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

the promulgation of the 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 also must provide for public

participation in permit issuance and enforcement as required in section

7004(b) 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 Regions will determine whether a State/Tribe has submitted an

``adequate'' program based on the interpretation outlined above. EPA

plans to provide more specific criteria for this evaluation when it

proposes the State/Tribal Implementation Rule. 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.

On April 29, 1993, South Dakota submitted an application for

adequacy determination for the State's municipal solid waste landfill

permit program. On October 8, 1993 (58 FR 52486), EPA determined that

South Dakota's application for adequacy determination met all of the

statutory and regulatory requirements established by RCRA. Accordingly,

South Dakota was granted a determination of adequacy for all portions

of its municipal solid waste landfill permit program. However, EPA's

decision to approve the South Dakota MSWLF permitting program did not

extend to ``Indian Country,'' as defined in 18 U.S.C. 1151, including

the following ``existing or former'' Indian reservations in the State

of South Dakota:

1. Cheyenne River;

2. Crow Creek;

3. Flandreau;

4. Lower Brule;

5. Pine Ridge;

6. Rosebud;

7. Sisseton;

8. Standing Rock; and

9. Yankton.

Before EPA would be able to approve the State of South Dakota MSWLF

permit program for any portion of ``Indian Country,'' the State would

have to provide an appropriate analysis of the State's jurisdiction to

enforce in these areas. In order for a State (or Tribe) to satisfy this

requirement, it must demonstrate to the EPA's satisfaction that it has

authority either pursuant to explicit Congressional authorization or

applicable principles of Federal Indian law to enforce its laws against

existing and potential pollution sources within any geographical area

for which it seeks program approval. EPA had reason to believe that

disagreement exists with regard to the State's jurisdiction over

``Indian Country,'' and EPA was not satisfied that South Dakota had, at

that time, made the requisite showing of its authority with respect to

such lands.

B. State of South Dakota's Application Concerning Former Lands of

the Yankton Sioux, Sisseton-Wahpeton and Parts of the Rosebud

Indian Reservations

On October 8, 1993, the State of South Dakota submitted an

application amendment to EPA for approval of its solid waste permit

program ``for regulation of solid waste activities on non-Indian lands

for the former lands of the Yankton Sioux, Sisseton and parts of the

Rosebud Indian Reservations.'' During a 30 day period, starting

November 29, 1993, EPA requested comment on the State's application

from certain affected parties. Cheyenne River Sioux, Sisseton-Wahpeton

Sioux, Yankton Sioux and Rosebud Sioux Tribes submitted written

comments on the State's assertion of jurisdiction.

The Sisseton-Wahpeton Dakota Nation responded to the application of

the State of South Dakota, expressing concern regarding issuance of a

permit to Roberts County (South Dakota) for a new sanitary landfill and

gave notice of the Tribe's intent to develop its capacity to manage its

natural resources and enforce its codes within the original 1867

boundaries of the Lake Traverse Reservation. All permits issued under a

program determined by EPA to be adequate must meet minimum Federal

standards, including a permit to Roberts County for a new sanitary

landfill. The Tribe's intentions with regard to activities within the

original boundaries of the Lake Traverse Reservation are duly noted,

but the Tribe's authority to take such actions is not before EPA for

decision at this time.

On review of the arguments presented and following consultation

with the Department of the Interior, EPA believes that the State of

South Dakota has sufficiently demonstrated that the former Lake

Traverse reservation was disestablished by Act of Congress (26 Stat.

1039), as decided by the U.S. Supreme Court in DeCoteau v. District

County Court, 420 U.S. 425 (1975).

The Yankton Sioux Tribe argued that the Act of August 15, 1894 (28

Stat. 286, 314) did not expressly disestablish the Yankton Sioux

Reservation and that the Federal Court opinions relating to the issue

are not controlling. On review of the arguments and consultation with

the Department of the Interior, EPA believes that the State of South

Dakota has sufficiently demonstrated that the Yankton Sioux Reservation

was disestablished by the Act of 1894. See Weddellv. Meierhenry, 636

F.2d 211 (8th Cir. 1980).

The Rosebud Sioux Tribe argued that the Tribal Constitution asserts

jurisdiction over all ``territory within the original confines of the

Rosebud Indian Reservation'' and that Rosebud Sioux Tribe v. Kneip, 430

U.S. 584 (1977) upheld tribal regulatory jurisdiction over all lands

within Todd Country and on trust lands outside. The Agency does not

today comment on the potential extent of tribal jurisdiction, but is

only concerned with the extent of jurisdiction of the State of South

Dakota. On review of the arguments and consultation with the Department

of the Interior, EPA believes that the State of South Dakota has

sufficiently demonstrated that the Rosebud Sioux Reservation was

diminished by three Acts of Congress (33 Stat. 254; 34 Stat. 1230; and

36 Stat. 448) to exclude from the Reservation all lands other than

Indian Country lying within Gregory, Tripp, Lyman and Mellette

Counties. See Rosebud Sioux Tribe v. Kneip.

Accordingly, the Agency is making a tentative determination that

the South Dakota program is adequate under section 4005 of RCRA for the

disestablished areas within the former boundaries of the Lake Traverse

and Yankton Reservations and the diminished portions of the Rosebud

Sioux Reservation lying within Gregory, Tripp, Lyman and Mellette

Counties. This tentative determination of adequacy does not extend to

Indian Country presently located within these disestablished and

diminished areas.

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

determination to approve any State/Tribe's MSWLF program, the Region

has tentatively scheduled a public hearing on this determination. If a

sufficient number of people express interest in participating in a

hearing by writing the Region or calling the contact within 30 days of

the publication of this notice, the Region will hold a hearing on June

2, 1994, 1 p.m. to 3 p.m. at the South Dakota Department of Environment

and Natural Resources, 523 East Capitol, Floyd Matthews Training

Center, Pierre, South Dakota, 57501.

EPA will consider all public comments on its tentative

determination received during the public comment period and during any

public hearing held. Issues raised by those comments may be the basis

for a determination of inadequacy for State of South Dakota's program.

EPA will make a final decision on whether or not to approve South

Dakota's program and 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 this approval 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 of the Solid Waste Disposal Act as amended; 42

U.S.C. 6912, 6945 and 6949(a).

Dated: March 31, 1994.

Jack W. McGraw,

Acting Regional Administrator.

[FR Doc. 94-8354 Filed 4-6-94; 8:45 am]

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