Cheyenne River Sioux Tribe; Tentative Adequacy Determination of Tribal Municipal Solid Waste Permit Program

ENVIRONMENTAL PROTECTION AGENCY

[FRL-4860-8]

Cheyenne River Sioux Tribe; Tentative Adequacy Determination of

Tribal Municipal Solid Waste Permit Program

AGENCY: Environmental Protection Agency (Region 8).

ACTION: Notice of tentative determination on application of Cheyenne

River Sioux Tribe for full 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. EPA believes that

adequate authority exists under RCRA to allow Tribes to seek an

adequacy determination for purposes of sections 4005 and 4010.

Cheyenne River Sioux Tribe applied for a determination of adequacy

under section 4005 of RCRA. EPA reviewed Cheyenne River Sioux Tribe's

MSWLF application and made a tentative determination that all portions

of Cheyenne River Sioux Tribe's MSWLF permit program are adequate to

ensure compliance with the revised MSWLF Criteria. Cheyenne River Sioux

Tribe's application for program adequacy determination is available for

public review and comment.

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

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

tentatively scheduled a public hearing on this determination. If

sufficient 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 Cheyenne River Sioux Tribe's application for a

determination of adequacy must be received by June 1, 1994. The public

hearing is tentatively scheduled for 7 p.m. to 9 p.m., June 1, 1994, at

the Elderly Nutrition Center, Eagle Butte, South Dakota, 57625. 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 at the

hearing on June 1, 1994. The hearing may adjourn earlier than 9 p.m. if

all of the speakers deliver their comments before that hour.

Representatives of the Cheyenne River Sioux Tribe will participate in

the public hearing held by EPA on this subject.

ADDRESSES: Copies of Cheyenne River Sioux Tribe's application for

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

following addresses for inspection and copying: Cheyenne River Sioux

Tribe, Environmental Protection Department, Eagle Butte, South Dakota,

57625, telephone (605) 964-6559; USEPA Region 8 Library, 999 18th

Street, 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 19th Street, suite 500, Denver, Colorado, 80202-2466.

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

Waste Management Branch, USEPA Region 8, 999 19th Street, suite 500,

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 (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 the STIR, adequacy determinations will be made

based on the statutory authorities and requirements. In addition,

States/Tribes may use the draft STIR as an aid in interpreting these

requirements. EPA 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.

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, CERCLA, 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),

requiring the Federal government to assume 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 and EPA would take enforcement actions as

appropriate. 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, rather than the

Federal government.

In the case of other environmental statutes (e.g., the Clean Water

Act), EPA, in accord with its Indian Policy, has worked to ensure that

Congress revises them at the earliest opportunity to define explicitly

the role for Tribes under these programs. 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-

13001 (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 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 the Cheyenne River Sioux

Tribe's 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 emphasized since Nance that Indian Tribes may

regulate activities on reservations, including those of non-Indians,

where the conduct directly threatens the health and safety of the Tribe

or its members. Montana v. United States, 450 U.S. 544, 565 (1981).

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 is ``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 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 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 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, rather than engage in

confrontations over jurisdiction.

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.

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) 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 Tribes

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. 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 materials necessary

to support its application for MSWLF permit program approval. These

requests incorporate the Criteria used in other environmental statutes

to assess whether Tribes may apply for program approval.

EPA Regions will determine whether a 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.

B. Cheyenne River Sioux Tribe

On August 31, 1993, the Cheyenne River Sioux Tribe submitted an

application for adequacy determination. EPA reviewed the Cheyenne River

Sioux Tribe's application and tentatively determined that all portions

of the Tribe's MSWLF permit program will ensure compliance with the

revised Federal Criteria.

The Cheyenne River Sioux Tribe is a Federally recognized Tribe (53

FR 52830). The Tribe has a tri-partite system of government. The Tribal

Council is the governing legislative body, comprised of fifteen elected

representatives. The Tribe's Chairman is its chief executive officer.

The Chairman and Executive Committee oversee day-to-day operations of

the Tribal government departments subject to supervision and oversight

by the Tribal Council. The judicial branch consists of criminal, civil,

juvenile and appeals courts and operates independently of the Tribal

Council and Executive branch. The Tribe's Environmental Protection

Department administers the solid waste permit program.

In making today's tentative determination that the Cheyenne River

Sioux Tribe'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. This includes adequate

authority to regulate the activities of non-Indians on fee lands within

the Cheyenne River Sioux Reservation. The Agency believes that the

Tribe has satisfactorily demonstrated 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 has also explicitly asserted that the threat to tribal health is

serious and substantial. In light of the legal argument and facts

presented by the Tribe and the generalized statutory and factual

findings regarding the importance of solid waste discussed above, the

Agency believes, after consultation with the Department of the

Interior, that the Cheyenne River Sioux Tribe has adequate authority

over the activities to be regulated by the Tribe's MSWLF permit

program, including the activities of non-Indians.

In its application, the Tribe 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.

During a 30 day period starting November, 29, 1993, EPA requested

comment on the Tribe's application from certain affected parties. The

State of South Dakota submitted written comments.

Following review of South Dakota's comments and consultation with

the Department of Interior, the Agency believes that the Cheyenne River

Sioux Tribe has demonstrated adequate jurisdiction to justify the

Agency in making its tentative determination that the Tribe's MSWLF

permit program is adequate. In reaching this conclusion, the Agency has

considered whether the risk of potential impacts on tribal health and

welfare from existing or future MSWLFs on fee lands is sufficient to

justify tribal regulation of MSWLFs at this time. However, as today's

Agency determination is only tentative and as public comments are

solicited and will be considered before any final Agency decision, the

Agency will welcome any available information from public or private

sources that pertain to the potential impacts of MSWLFs on tribal

health or welfare.

In its comments, the State of South Dakota presented three main

arguments:

(1) That the Supreme Court opinion in Brendale v. Confederated

Yakima Nation precludes an assertion of tribal jurisdiction in this

case,

(2) That the Supreme Court opinion in South Dakota v. Bourland

reaffirms and extends the ``Montana-Brendale rule,'' as interpreted by

the State of South Dakota, and

(3) That Congress has not ``expressly delegated'' to any Indian

tribe the power to regulate non-Indians on fee lands for purposes of

the RCRA.

The Agency has analyzed the significance of Brendale in detail and

has summarized its conclusions in the Background section above. After

considering the arguments provided by the State of South Dakota and

after consultation with the Department of Interior on those arguments,

the Agency has concluded that its analysis of tribal jurisdiction,

summarized above, is sound. Further, the Agency believes that its

analysis is not changed by the Supreme Court's opinion in Bourland.

Lastly, with regard to Congressional delegation of regulatory power to

Indian Tribes, the Agency's does not believe that a finding of such

delegation is necessary to today's tentative determination.

The Cheyenne River Sioux Tribe's MSWLF permit program, and the

Agency's tentative determination of adequacy, extend to all Indian

Country, defined in 18 U.S.C. section 1151, under the Tribe's control.

This includes all lands within the exterior boundaries of the Cheyenne

River Sioux Reservation and trust lands located outside the Reservation

boundaries.

The public may submit written comments on EPA's tentative

determination until June 1, 1994. Copies of the Cheyenne River Sioux

Tribe's application are available for inspection and copying at the

locations indicated in the ``Addresses'' section of this notice.

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

determination to approve any State/Tribe's MSWLF permit 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 1, 1994, at the Elderly Nutrition Center, Eagle

Butte, South Dakota, 57625.

EPA will consider all public comments on its tentative

determination received during the public comment period or any public

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

determination of inadequacy for the Cheyenne River Sioux Tribe's

program. EPA will make a final determination on whether or not to

approve the Cheyenne River Sioux Tribe'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 of the Solid Waste Disposal Act as amended; 42

U.S.C. 6912, 6945, 6949a.

Dated: March 31, 1994.

Jack W. McGraw,

Acting Regional Administrator.

[FR Doc. 94-8358 Filed 4-6-94; 8:45 am]

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