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

ENVIRONMENTAL PROTECTION AGENCY

[FRL-5198-9]

Campo Band of Mission Indians; Final Determination of Adequacy of

Tribal Municipal Solid Waste Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of Final Determination of Full Program Adequacy for the

Campo Band of Mission Indians Application.

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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 of 1984, requires states to develop and implement permit

programs to ensure that municipal solid waste landfills which may

receive hazardous household waste or small quantity generator waste

will comply with the revised Federal Municipal Solid Waste Landfill

Criteria (40 CFR part 258 or Federal Criteria). RCRA section

4005(c)(1)(C) requires the Environmental Protection Agency (EPA) to

determine whether states have adequate ``permit'' programs for

municipal solid waste landfills (MSWLFs). EPA believes that adequate

authority exists under RCRA to allow tribes to seek an adequacy

determination for purposes of sections 4005 and 4010.

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

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

Campo Band's application and proposed a determination that the Campo

Band's MSWLF permit program is adequate to ensure compliance with the

revised MSWLF Criteria. After consideration of all comments received,

EPA is today issuing a final determination that the Campo Band's

program is adequate.

EFFECTIVE DATE: The determination of adequacy for the Campo Band shall

be effective on May 1, 1995.

FOR FURTHER INFORMATION CONTACT: U.S. EPA Region 9, 75 Hawthorne

Street, San Francisco, California 94105, Attn: Ms. Christiane M. Camp,

Mail Code H-W-3, telephone (415) 744-2097.

SUPPLEMENTARY INFORMATION:

I. Background

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

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

Solid Waste Amendments of 1984, requires states (and, as discussed

below, allows Indian tribes) to develop permitting programs to ensure

that MSWLFs comply with the Federal Criteria under 40 CFR part 258.

Section 4005 of RCRA also requires that EPA determine the adequacy of

state MSWLF permit programs to ensure that facilities comply with the

revised Federal Criteria. EPA has drafted and is in the process of

proposing a State/Tribal Implementation Rule (STIR) that will provide

procedures by which EPA will approve, or partially approve, state/

tribal landfill permit programs. As explained below, the Agency intends

to approve adequate state/tribal MSWLF permit programs as applications

are submitted. These approvals are not dependent on final promulgation

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

will be made based on the statutory authorities and requirements. In

addition, states/tribes may use the draft STIR as an aid in

interpreting these requirements.

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

program approval as is available to states. Providing tribes with the

opportunity to apply for adequacy for purposes of adopting and

implementing permit programs is consistent with the EPA Policy for the

Administration of Environmental Programs on Indian Reservations

(November 8, 1984) (EPA's Indian Policy). This Policy, formally adopted

in 1984, recognizes tribes as the primary sovereign entities for

regulating the reservation environment and commits the Agency to

working with tribes on a ``government-to-government'' basis to

effectuate that recognition. A major goal of EPA's Indian Policy is to

eliminate all statutory and regulatory barriers to tribal assumption of

federal environmental programs. Today's determination to approve a

tribal MSWLF permit program represents another facet of the Agency's

continuing commitment to the implementation of this long-standing

policy.

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

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

directly addressed the precise question at issue or otherwise

explicitly stated its intent in the statute or in legislative history,

the Agency charged with implementing that statute may adopt any

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

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

Interpreting RCRA to allow tribes to apply for an adequacy

determination satisfies the Chevron test.

States generally are precluded from enforcing their civil

regulatory programs in Indian country, absent an explicit Congressional

authorization. California v. Cabazon Band of Mission Indians, 480 U.S.

202 (1987). Yet, under the current statutory scheme, EPA generally is

precluded from enforcing the federal Criteria as well. Furthermore,

Congress has not yet created an explicit role for tribes to implement

the RCRA Subtitle D program, as it has done under most other major

environmental statutes amended since 1986 (Safe Drinking Water Act;

Comprehensive Environmental Response, Compensation and Liability Act;

Clean Water Act; Clean Air Act).

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

have adequate authority over the regulated activities. Indian

reservations may [[Page 21192]] 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. For further explanation of this issue, see EPA's tentative

determination of the adequacy of the Campo Band's solid waste program,

59 FR 24422, 24425-24427 (May 11, 1994). As explained in the tentative

determination, all land within the Campo Reservation is tribal trust

land; there is no fee land owned by non-Indians on the Campo

Reservation. As further explained in the tentative determination, the

Campo Band has established that it has adequate jurisdiction over the

Campo Reservation based on general principles of tribal sovereignty,

the Campo Band's status as a ``federally recognized Indian Tribe'', the

Tribal Constitution, a map and narrative description which established

the boundaries of the Reservation, and Tribal codes and regulations.

By today's action, EPA is continuing to follow its policy of

approving state/tribal permit programs prior to the promulgation of

STIR. As explained in the tentative determination, as well as in

previous state program approvals, EPA interprets the requirements for

states or tribes to develop ``adequate'' programs for permits or other

forms of prior approval to impose several minimum requirements. First,

each state/tribe must have enforceable standards for new and existing

MSWLFs that are technically comparable to EPA's revised Federal

Criteria. Next, the state/tribe must have the authority to issue a

permit or other notice of prior approval to all new and existing MSWLFs

in its jurisdiction. The state/tribe must also provide for public

participation in permit issuance and enforcement as required in section

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

show that it has sufficient compliance monitoring and enforcement

authorities to take specific action against any owner or operator that

fails to comply with an approved program.

EPA further requests tribes to provide a statement of legal

authority from the tribal Attorney General or its equivalent

demonstrating that the tribe has adequate jurisdiction to regulate

MSWLFs on the reservation. In addition, EPA requests tribes seeking

program approval to demonstrate that they: (1) Are federally

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

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

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

these criteria in the context of obtaining a grant or the approval to

operate another EPA program, it need not do so again. EPA also requests

tribes to provide an explanation of the jurisdiction and

responsibilities of all tribal program implementing agencies (including

any state agency acting pursuant to an agreement with the tribe) and to

designate a lead agency to facilitate communications between EPA and

the tribe. If a tribe has already provided information and/or a legal

statement on the tribe's jurisdiction and capability under another EPA

program, EPA requests the tribe to provide only those additional

materials necessary to support its application for permit program

approval. These requests incorporate the criteria used in other

environmental statutes to assess whether tribes may receive grants or

program approval.

II. Campo Band of Mission Indians

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

adequacy determination. On May 11, 1994, EPA published a tentative

determination of adequacy for the Campo Band's program. Further

background on the tentative determination of adequacy appears at 59 FR

24422 (May 11, 1994).

Along with the tentative determination, EPA announced the

availability of the application for public comment and the date of a

public hearing on the application. On June 30, 1994, at 7 p.m. EPA held

a public hearing. Numerous comments were made at the hearing. EPA also

received numerous written comments during the public comment period,

which EPA extended until August 1, 1994. 59 FR 34812 (July 7, 1994).

III. Responses to Comments

The following are EPA's responses to the written and oral comments

received during the public comment period and at the public hearing.

A. EPA's Authority to Approve Tribal Programs

Several commenters asserted that EPA does not have the authority to

approve tribal solid waste programs under RCRA. These comments raised a

number of legal and policy issues which are discussed below.

1. Summary of the Agency's Position

The Campo Band applied for a determination of adequacy under

Subtitle D of RCRA, as amended (42 U.S.C. 6941-6949a). Section

4005(c)(1)(B) of RCRA requires states to develop and implement permit

programs to ensure that MSWLFs which may receive hazardous household

waste or conditionally exempt small quantity generator waste will

comply with the revised Federal Criteria for MSWLFs, 40 CFR part 258.

Section 4005(c)(1)(C) requires EPA to determine whether states have

adequate ``permit'' programs.

EPA believes that RCRA allows tribes to seek an adequacy

determination for purposes of sections 4005 and 4010 in the same manner

as the states.

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

Chevron, supra. Where Congress has not spoken directly to the precise

question at issue or otherwise explicitly stated its intent in the

statute or in legislative history, the administering Agency's

interpretation of the statute is entitled to deference if it is based

on a permissible construction of the statute. Chevron, 467 U.S. at 843.

In step one of the Chevron test, a court looks first to whether

Congress has specifically addressed the relevant issue.1 If not, a

court proceeds to step two to decide whether the interpretation offered

by the administering agency is reasonable in light of the goals and

purposes of the statute. See, e.g., American Mining Congress v. EPA,

965 F.2d 759 (9th Cir. 1992).

\1\.One commenter argued that EPA has misread the Chevron test

to allow EPA to fill a statutory gap when Congress has adopted a

provision but failed to state its intent in doing so. See 59 FR

24422, 24423 (May 11, 1994). According to this comment, Chevron

applies only when Congress has failed to adopt a specific provision.

EPA notes that the exact language is whether ``Congress has not

directly addressed the precise question at issue.'' 467 U.S. at 843.

This may occur either where Congress has failed to adopt a specific

provision or where the provision adopted is not clear as to the

specific issue. In the situation of Indian tribes and RCRA Subtitle

D, both problems occur, as discussed below.

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The Supreme Court stated in Chevron that the principle of deference

to administrative interpretations of a statute ``has been consistently

followed by this Court whenever a decision as to the meaning or reach

of a statute has involved reconciling conflicting policies, and a full

understanding of the force of the statutory policy in the given

situation has depended upon more than ordinary knowledge respecting the

matters subjected to agency regulations.'' 467 U.S. at 844. In

interpreting the meaning and reach of Subtitle D of RCRA, the Agency

has undertaken to reconcile RCRA with broad federal mandates, analogous

environmental statutes, EPA's longstanding Indian Policy and relevant

principles of federal Indian law.

EPA's Indian Policy, formally adopted in 1984 and reaffirmed by

each EPA Administrator since, recognizes tribes as the primary

sovereign entities for [[Page 21193]] 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. Providing tribes with the opportunity to implement permit

programs represents another facet of the Agency's continuing commitment

to the implementation of this long-standing policy.

In the case of other environmental statutes which initially did not

have explicit provisions concerning treatment of Indian tribes in the

same manner as states, such as the Clean Water Act, EPA, in accord with

its Indian Policy, has worked to ensure that Congress revises them at

the earliest opportunity to define explicitly the role for tribes under

these programs. Congress added the provisions of the Clean Water Act

that specifically allow tribes to be treated in the same manner as

states in 1987. Clean Water Act section 518, 33 U.S.C. 1377.

However, EPA also has stepped in on at least two occasions to allow

tribes to seek program approval despite the lack of an explicit

Congressional mandate. EPA has recognized Indian tribes as the

appropriate authority under the Emergency Planning and Community Right-

to-Know Act (EPCRA), despite silence on the tribal role under EPCRA. 55

FR 30632 (July 26, 1990). EPA also filled a statutory gap in the Clean

Air Act even before development of its Indian Policy. In 1974, EPA

authorized Indian tribes to redesignate the level of air quality

applicable to Indian country under the Prevention of Significant

Deterioration (PSD) program in the same manner that states could

redesignate for other lands. This decision was upheld in Nance v. EPA,

645 F.2d 701 (9th Cir. 1981). EPA believes the current situation to be

analogous to these situations.

One commenter asserted that Nance was the only authority cited by

EPA in support of the Agency's position that it has authority to

approve tribal programs. This commenter listed several facts

distinguishing the circumstances in the Nance case from the present

determination. However, as explained more fully throughout these

responses to comments, Nance is not EPA's sole support for today's

action. EPA's interpretation is based on a number of authorities,

including several cases--Chevron, supra, Cabazon, supra, State of

Washington, Department of Ecology v. U.S. EPA, 752 F.2d 1465 (9th Cir.

1985) (discussed below), and others-- as well as EPA's Indian Policy.

Furthermore, EPA reiterates the fact that the Nance court held that

under a federal statute silent as to jurisdiction in Indian country,

EPA correctly allowed the Tribe, rather than the State, to ``exercise

control...over the entrance of pollutants onto the reservation''. That

is precisely what EPA's action today will do.

2. Applicability of Chevron

EPA received several general comments which suggest that the

Chevron test does not apply to the interpretation of RCRA at issue

here. The Agency disagrees with these comments.

Several facts create a gap in the implementation of RCRA. First,

Congress did not directly speak to the issue of how a MSWLF regulatory

program should be implemented in Indian country. In Washington, the

Ninth Circuit upheld EPA's decision to exclude Indian country from the

approved State hazardous waste program, stating that ``RCRA does not

directly address the problem of how to implement a hazardous waste

management program on Indian reservations.'' 752 F.2d at 1469. Second,

under the current statutory scheme as implemented, EPA is generally

precluded from enforcing federal requirements on MSWLFs. Section

4005(c) of RCRA only allows EPA to enforce the 40 CFR part 258 Criteria

after a finding of inadequacy of the state permit program, indicating

Congress' preference for non-federal oversight of MSWLFs. Third, it is

a well-settled principle of federal Indian law that states are

precluded from exercising civil regulatory authority in Indian country

unless Congress has expressly authorized them to do so. Cabazon, supra;

Santa Rosa Band of Indians v. Kings County, 532 F.2d 655 (9th Cir.

1975), cert. denied 97 S.Ct. 731 (1977); Washington, 752 F.2d at 1469-

1470. These facts leave open the question of how MSWLFs will be

regulated in Indian country.

A gap in the administrative scheme of a statute indicates that

Congress has delegated implicitly to the administrative Agency the

authority to interpret the statute in a way that fills the gap.

Washington, 752 F.2d at 1465. This interpretation is to be upheld if it

is based on a permissible construction of the statute and reasonably

promotes the goals and purposes of the statute. Chevron, 467 U.S. at

843. The Agency's determination that RCRA Subtitle D allows Indian

tribes to develop permitting programs to ensure that MSWLFs comply with

the Federal Criteria under 40 CFR part 258 is not only a permissible

interpretation of RCRA, but is the most reasonable interpretation of

RCRA given the strong legal and policy considerations in favor of

promoting tribal sovereignty, and Congress' preference for non-federal

oversight of MSWLFs.

3. Existence of a ``Gap'' in MSWLF Regulation

EPA also received comments that Chevron should not apply because

there is no gap in the regulatory program for EPA to fill. According to

these comments, the case of Coalition for Clean Air v. EPA, 971 F.2d

219 (9th Cir. 1992) should govern this issue. Coalition involved

interpreting a provision of the Clean Air Act. Under the Clean Air Act,

states are to submit proposals for State Implementation Plans (SIPs)

allowing for attainment of National Ambient Air Quality Standards

(NAAQS) by the statutory deadline. If EPA disapproves the state's

proposed SIP, EPA must establish a Federal Implementation Plan (FIP) to

take the place of the SIP. As noted in Coalition, EPA had disapproved

California's proposed SIP for the South Coast and was in the process of

finalizing a FIP for the South Coast when Congress passed the Clean Air

Act Amendments of 1990. 971 F.2d at 222-223. The Amendments changed the

criteria and timetables for NAAQS attainment. EPA argued that the

changes relieved EPA of the obligation to promulgate a FIP and made it

incumbent upon California to try again and submit a new SIP proposal.

Id.

In Coalition, the Ninth Circuit declined to defer to EPA's

interpretation for three reasons. First, the court found that the plain

language of the Clean Air Act expressed Congress' intent to require EPA

to promulgate a FIP. The court also found that legislative history did

not support EPA's interpretation. Finally, the court held that EPA's

interpretation was not entitled to deference because EPA had previously

argued the opposite to Congress--that unless the statute were amended,

EPA would be obligated to promulgate FIPs. The court pointed out that

the change in EPA's interpretation did not reflect accumulated

experience or respond to changing circumstances, nor was the change

justified with reasoned analysis. Rather, the court found that EPA was

merely asking the court to do what Congress would not.

The factors that lead the Ninth Circuit to reject EPA's

interpretation of the Clean Air Act in Coalition are not present here.

As discussed in more detail below, the plain language of RCRA does not

express Congress' intent [[Page 21194]] with respect to regulation of

solid waste in Indian country. As discussed below, the legislative

history supports EPA's position that Congress did not intend to

abrogate tribal sovereignty and give states jurisdiction over solid

waste management in Indian country. Finally, EPA's interpretation is

consistent with the Agency's long-standing Indian Policy and previous

statements about the regulation of solid waste.

Finally, the commenter argued that Chevron deference is less

appropriate when an Agency adopts a statutory interpretation that is

inconsistent with past policy and the new interpretation is not

triggered by a change in the law or a problem arising from the previous

interpretation, or accompanied by a reasoned analysis of the need for a

change. The comment cites the preamble to EPA's 1979 guidelines for

development and implementation of state solid waste management plans,

which provides that ``states with Indian Lands should therefore address

solid waste management on these lands in accord with treaties and State

policy.'' 44 FR 45078-79 (July 31, 1979). The comment also cites the

regulation itself which provides that ``the State plan shall provide

for coordination, where practicable, with solid waste management plans

in neighboring States and with plans for Indian Reservations in the

State.'' 40 CFR 256.50(m) (1979). EPA disagrees that these provisions

render deference to the Agency's interpretation of RCRA less

appropriate. EPA has not changed its position. The provisions cited do

not order states to regulate Indian country, but instead recognize that

states are generally precluded from exercising regulatory authority

over Indian country, and support EPA's long-standing policy that tribes

are the appropriate non federal sovereign to regulate the environment

in Indian country. The cited provisions suggest that EPA recognized

that solid waste management plans in Indian country are separate from

the plans in effect for the surrounding state, just as are plans in

other states. EPA explained in the preamble that it added

Sec. 256.50(m) ``to encourage coordination with tribal solid waste

management programs.'' 44 FR 45079 (July 31, 1979).

Under the citizen suit provisions of RCRA citizens can enforce the

40 CFR part 258 regulations. According to some of the comments, this

means there would be no gap in enforcement of the MSWLF requirements in

Indian country. While EPA acknowledges that the requirements of 40 CFR

part 258 would be in effect in Indian country even if tribes could not

obtain approval of their MSWLF permit programs, this would not achieve

the same programmatic results. The ability to file a citizen suit under

section 7002 of RCRA when a MSWLF fails to operate properly is not

comparable to having a primary and complete system in place for solid

waste management. Moreover, citizens have the right to sue regardless

of the status of a state or tribal program. The existence of citizen

suit enforcement of the Federal criteria is therefore irrelevant to the

issue of how to fill the gap that exists in the permitting of MSWLFs in

Indian country. Congress has not provided a mechanism that would be

equivalent to recognizing tribal authority directly.

One commenter asserted that, through the citizen suit provision

(which would subject any owner or operator of an MSWLF--including

tribes and non-Indian landfill owners or operators in Indian country--

to enforcement) Congress abrogated tribal sovereignty. The commenter

implies that Congress intended for states to regulate solid waste

management in Indian country. EPA disagrees. The fact that tribes or

non-Indian operators in Indian country are subject to RCRA citizen

suits does not imply Congressional intent to deprive tribes of their

authority to regulate the environment within their jurisdiction. The

same citizen suit provision of RCRA also subjects states and the

federal government to citizen suits; the commenter's argument would

imply Congressional intent to deprive states and the federal government

of their authority to regulate as well. The purpose of the citizen suit

provision is to provide a back-up system when the authorized government

regulatory agency fails to enforce the relevant environmental

standards.

One commenter also argued that EPA could instead fill the gap in

permitting authority by promulgating reservation-specific MSWLF

standards for interested tribes in place of the nationwide 40 CFR part

258 requirements. EPA acknowledges this may be a potential alternative.

But, consistent with EPA's Indian policy and its emphasis on tribal

self-government, the Agency believes that tribes should be given the

opportunity to operate the program directly where the statute allows

for such authority. The comment merely offers an alternative method of

filling the gap, implicitly recognizing that a gap exists to be filled

under Chevron.

One commenter argued that EPA may not fill the statutory gap in the

treatment of Indian tribes under RCRA unless and until it attempts to

remove existing statutory and regulatory ``barriers'' to treating

tribes in the same manner as states. EPA disagrees that it must take

other actions before adopting today's interpretation. Congress has not

amended RCRA since 1984. EPA has recommended for several years that an

Indian tribes provision be added to the statute, and draft provisions

have appeared in bills introduced in the 101st and 102nd Congresses. A

comprehensive RCRA reauthorization bill was not introduced in the 103rd

Congress. So EPA has endeavored to bring this issue before Congress,

but Congress has not amended the statute in any form. Nonetheless, EPA

believes that no statutory or regulatory barriers exist that would

prevent treatment of tribes in the same manner as states under RCRA

Subtitle D. Chevron allows EPA to specify a role under RCRA Subtitle D

for tribes to implement MSWLF permit programs in Indian country.

4. RCRA Definition of ``Municipality''

One commenter argued that states have authority over Indian tribes

for the purposes of RCRA because tribes are included in the definition

of ``municipality'' rather than in the definition of ``state''. This

commenter asserted that the Agency goes beyond ``filling gaps'' in its

interpretation of RCRA, and ``creates a program from whole cloth'' that

``directly conflicts with Congress' law.'' According to the comment,

Congress has directly addressed the precise issue of how tribal solid

waste programs are to interrelate with state and federal programs by

including Indian tribes in the definition of ``municipality'', rather

than ``state''. ``State'' is defined to mean:

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

Commonwealth of Puerto Rico, the Virgin Islands, Guam, American

Samoa, and the Commonwealth of the Northern Mariana Islands.

RCRA section 1004(31).

The only mention of tribes in the statute is in section 1004(13), a

part of the ``definitions'' section of RCRA. Section 1004(13) defines

the term ``municipality'' to mean:

(A) city, town, borough, county, parish, district, or other

public body created by or pursuant to State law, with responsibility

for the planning or administration of solid waste management, or an

Indian tribe or authorized tribal organization or Alaska Native

village or organization(.)

RCRA does not explicitly define a role for tribes under sections

4005 and 4010 and therefore reflects an ambiguity in congressional

intent. The Agency believes that the commenter has misconstrued the

significance of the definitions. ``Municipalities'' are

[[Page 21195]] mentioned in sections 4003(c)(1)(C), 4008(a)(2),

4008(a)(3)(C), 4008(g)(1) and 4009(a) of RCRA, all of which reference

the availability of federal funds and technical assistance for solid

waste planning and management activities by municipalities. It is

therefore the Agency's interpretation of these provisions that Congress

intended to provide that tribes could receive federal funding and

assistance for solid waste planning and management activities when

available in the same manner as municipal governments, but that

Congress did not otherwise intend to limit the scope of tribal

regulatory authority over solid waste management in Indian country. In

other words, absent an indication from Congress to the contrary, EPA

believes that inclusion of Indian tribes in the definition of

``municipality'' was merely a definitional expedient used to avoid

having to include the phrase ``or an Indian tribe or authorized tribal

organization or Alaska Native village or organization'' wherever the

term ``municipality'' appeared, not to change the sovereign status of

tribes for RCRA purposes.

Another comment cites Sutherland on Statutory Construction

Sec. 46.01 (5th ed. 1992) for the principle that ``unless the

defendants can demonstrate that the natural and customary import of the

statute's language is either repugnant to the general purview of the

act or for some other compelling reason should be disregarded, the

court must give effect to the statute's plain meaning.'' First, as

discussed above, EPA believes that the language of RCRA contains no

``plain meaning'' with respect to jurisdiction over solid waste

management in Indian country. Second, EPA believes that federal Indian

law and EPA's Indian Policy provide a sufficiently ``compelling

reason'' to overcome the inference that states have jurisdiction over

solid waste management in Indian country that the commenter would draw

from the statutory definition of ``State'' and ``municipality''.

Many references are made to ``local governments'' or ``local

authorities'' in RCRA. See, e.g., sections 4006(a); 4006(b);

4006(c)(2). One commenter argued that the term ``municipality'' should

be substituted for these references, and that tribes should be treated

the same as municipalities for all purposes of RCRA Subtitle D. This

would result in Indian tribes being brought under state control for the

purposes of section 4006, which specifies procedures for the

development and implementation of state solid waste plans. EPA

believes, however, that these terms were not intended to include Indian

tribes. The term ``municipality'' could have easily been used instead

of these references. By contrast, the term ``municipality,'' which by

definition includes Indian tribes, is used with reference to the

availability of federal funds and technical assistance for solid waste

planning and management activities. Thus, EPA believes that Congress

did not intend to refer to Indian tribes and local governments

interchangeably nor to affect the sovereign status of tribes in such an

indirect way in RCRA.

It is a reasonable interpretation of RCRA that the use of the

explicitly defined term ``municipality'' was limited to those areas

that Congress wanted to apply to both local governments and Indian

tribes, while the terms ``local governments'' or ``local authorities''

were used for those provisions that were to apply to local governments

and not to Indian tribes. As discussed above, however, it is a

reasonable interpretation of RCRA that Congress did not intend, simply

by defining ``municipality'' to include tribes, to abrogate Indian

sovereignty and subject all solid waste management activities in Indian

country to state regulatory authority.

An examination of the legislative history of RCRA further supports

EPA's position that Congress did not directly address the management of

solid waste in Indian country. The first Solid Waste Disposal Act did

not define ``municipality.'' Solid Waste Disposal Act (SWDA), Pub. L.

No. 89-272, Title III Sec. 203, 79 Stat. 983, 990-991 (1965). The

definition of municipality was added by the Resource Recovery Act of

1970, and included ``Indian tribe''. Pub. L. No. 91-512, Title I Sec.

102, 84 Stat. 1227, 1228 (1970). Congress then enacted the Resource

Conservation and Recovery Act of 1976, which contains the definition of

``municipality'' currently in the statute, adding ``or authorized

tribal organization or Alaska Native village or organization''. Pub. L.

No. 94-580, Title II, Sec. 1004, 90 Stat. 2795, 2800 (1976). There is

no legislative history explaining why Congress included Indian tribes

and other Indian organizations in the definition of ``municipality''.

See H.R. Rep. No. 1155, 91st Cong., 2d Sess., reprinted in 1970

U.S.C.C.A.N. 4552; S. Rep. No. 1034, 91st Cong., 2d Sess. 27, (1970);

H.R. Conf. Rep. No. 1579, 91st Cong., 2d Sess., reprinted in 1970

U.S.C.C.A.N. 4559; H.R. Rep. No. 1491, 94th Cong., 2d Sess., reprinted

in 1976 U.S.C.C.A.N. 6238; S. Rep. No. 869, 94th Cong., 2d Sess. 1

(1976); S. Rep. No. 988, 94th Cong., 2d Sess. 1 (1976).

There is no further mention of the definitions or of the role of

tribes in the legislative history of RCRA. There is also no indication

in the legislative history that Congress ever attempted to conduct an

examination of the social, legal and political ramifications that the

submission of tribes to state regulatory authority in the area of

hazardous waste management would occasion. The fact that Congress did

not conduct such an examination or otherwise directly address the

precise issue in the legislative history supports EPA's contention that

Congress did not in fact have a specific intent with regard to

implementation of RCRA in Indian country.

As mentioned above, principles of federal Indian law also support

the Agency's interpretation of RCRA under Chevron. Federal Indian law

mandates that a statute be construed liberally in favor of Indians. See

Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766-767 (1985),

and Washington, 752 F.2d at 1469-1470. Liberally construed in favor of

the states, the inclusion of Indian tribes in the definition of

``municipality'' might constitute an implicit argument for the

limitation of Indian sovereignty, but the Agency is obligated to read

RCRA in favor of tribal authority and to uphold the principles of

tribal sovereignty unless Congressional directives to the contrary are

clearly expressed.

The commenter seeks to read into an ambiguous statute Congressional

intent to deny tribes a significant regulatory authority. This is

inconsistent with federal Indian law, as discussed above. EPA cannot

assume that Congress, by including Indian tribes in the definition of

``municipality'' in RCRA section 1004(13), intended to submit the

sovereign authority of the various Indian tribes throughout the nation

to that of the various states in which they reside for the purposes of

RCRA. Neither the statutory text nor the legislative history of RCRA

support this reading of the statute.

One commenter supported the conclusion that, as a general rule,

Indian tribes that are sovereign nations are not subject to state solid

waste management requirements. This commenter stated that courts will

permit state requirements to extend to sovereign tribal lands only if

the state interests clearly outweigh tribal and federal interests, and

that the U.S. Supreme Court has rarely found such interests to exist.

This is consistent with EPA's analysis of federal Indian law, discussed

above.

Another commenter argued that EPA's proposal to treat Indian tribes

in the [[Page 21196]] same manner as states for purposes of section

4005 is inconsistent with its decision not to waive MSWLF financial

assurance requirements for Indian tribes that operate landfills, as EPA

had waived for state-operated landfills. (See 56 FR at 51107-08 (Oct.

9, 1991); 40 CFR 258.70(a)). In this commenter's view, EPA's decision

suggests that EPA considers tribes to be equivalent to municipalities

for RCRA Subtitle D purposes. EPA disagrees. As is explained in detail

in the preamble to the Federal Criteria rule, EPA proposed, but

ultimately decided against, exempting Indian tribes from the financial

assurance requirements imposed on local governments. EPA decided that

Indian tribes, ``for reasons similar to those'' upon which the Agency

based its decision not to exempt municipalities from the financial

assurance requirements, ``do not have the requisite financial strength

to ensure funding of their closure, post-closure and corrective action

obligations''. 56 FR at 51108. EPA did not say anything to suggest a

position that Indian tribes were subject to state regulatory control as

are local governments or municipalities. Nor did EPA suggest that

tribes lack the sovereign regulatory authority over MSWLF activities in

Indian country necessary to administer an EPA-approved landfill permit

program. Therefore, there is no inconsistency between the Agency's

position in that rule and in today's notice.2

\2\.The commenter also asserted that EPA used the terms ``local

government'' and ``municipality'' interchangeably in the proposed

and final landfill criteria rule, and that EPA implicitly asserted

that ``Indian tribes'' should be considered local governments for

MSWLF purposes. A close examination of the language makes clear that

EPA thought that Indian tribes were similar to local governments,

but quite separate from them. For instance, one section of the

preamble to the final rule is titled ``Concerns Regarding Local

Government and Indian Tribe Impacts''. 56 FR at 50980; the section

discussing the financial assurance issue discusses Indian tribes

separately from local governments. Id. at 51107.

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5. RCRA Definition of ``State''

One commenter asserted that Congress could easily have included

Indian tribes in the definition of ``state,'' and that the fact that

Congress did not do so indicates that Congress did not want to give

tribes a sovereign role for RCRA purposes. While the scant legislative

history allows for little comment on Congress' motives in not

explicitly allowing Indian tribes to be treated in the same manner as

states, EPA believes that, had Congress clearly intended to preclude

Indian tribes from operating in the same manner as states for purposes

of RCRA Subtitle D, it would have made that clear in the language or

legislative history of the 1984 Amendments. This commenter also noted

that the regulations in 40 CFR part 258 refer to actions taken by the

``State Director'', and that no officials of the Campo Band or the

Campo Environmental Protection Agency (CEPA) fit EPA's definition of

that term. However, EPA believes it has the authority to interpret its

own regulations in a manner consistent with the statutory purpose for

which those regulations were adopted. As discussed above, Chevron gives

EPA the authority to interpret RCRA to allow for treatment of tribes in

the same manner as states for purposes of program approval. EPA's use

of the term ``State Director'' in the landfill regulations may be read

to include tribal officials serving the function of a State Director in

order to effectuate EPA's permissible interpretation of RCRA.

6. The Relevance of Washington Dept. of Ecology v. EPA

Several commenters challenged EPA's reference to other

environmental statutes to support its argument concerning treatment of

Indian tribes under RCRA. EPA's reference to other environmental

statutes to interpret state and tribal authority in the implementation

of solid waste permitting programs was implicitly approved by the Ninth

Circuit in Washington:

Implementation of hazardous waste management programs on Indian

lands raises questions of Indian policy as well as environmental

policy. It is appropriate for us to defer to EPA's expertise and

experience in reconciling these policies, gained through

administration of similar environmental statutes on Indian lands.

One commenter stated that EPA seeks to create a ``vacuum'' in the

implementation and enforcement of Subtitle D of RCRA by asserting that

the states are generally precluded from regulating MSWLFs on tribal

lands. This commenter stated that Washington supports the commenter's

assertion that statutes are to be read in a manner that does not find a

vacuum, and therefore EPA's interpretation of RCRA's administrative

scheme is contrary to Washington. EPA disagrees that its position is

inconsistent with Washington. The Ninth Circuit in Washington in fact

upheld EPA's denial of the State's application to regulate hazardous

waste in Indian country, because under federal Indian law states are

generally precluded from exercising civil regulatory authority over

Indian country. EPA denied the portion of the State of Washington's

application that sought to regulate hazardous waste in Indian country

because the State had failed to demonstrate adequate jurisdiction.

This commenter further argued that the holding in Washington that

states lack authority to regulate waste activities on Indian lands

should be limited to Subtitle C of RCRA because ``(w)here hazardous

waste is concerned, the state plays no role until the * * * EPA doles

it out * * * Where solid waste is concerned, the EPA plays no role

unless the state fails to give that aspect of the program proper

attention.'' However, this argument does not reach the question of

state versus tribal authority. Even if EPA does not issue permits for

MSWLFs in Indian country as it does for certain Subtitle C facilities,

this does not mean that Indian tribes are not allowed to implement

MSWLF permitting programs in the same manner as the states. Approving

tribal MSWLF permitting programs would uphold EPA's general policy of

encouraging non-federal implementation and enforcement of the Federal

Criteria as does states' proper implementation of MSWLF permitting

programs on land within the state's jurisdiction.

Further, the argument that Washington should be limited to Subtitle

C of RCRA ignores the fact that the definitions of section 1004(13) and

the corresponding legislative history, as discussed above, are

applicable to all of RCRA. The legislative history was insufficient to

express Congressional intent to extend state jurisdiction over Indian

country with respect to Subtitle C. It is also insufficient to extend

state jurisdiction over Indian country with respect to Subtitle D of

RCRA.

7. EPA May Properly Allow Tribes to Submit Applications for Approval of

Their MSWLF Permit Programs at the Tribes' Discretion

One comment criticizes EPA for allowing Indian tribes to seek

approval of their MSWLF permit programs in the same manner as States,

but not requiring Indian tribes to submit a program as States are

required under section 4005(c). As EPA explained in the proposed

approval, Congress did not explicitly specify a role for tribal permit

programs under Subtitle D of RCRA. EPA is therefore unwilling to

ascribe to Congress the specific intent to require tribes to submit

landfill permit programs as Congress clearly intended for States.

Furthermore, even if EPA were to mandate that tribes submit such

programs, the only effects of a failure to submit are: (1) EPA may

determine there to be no adequate program in place and

[[Page 21197]] thus that it has authority to enforce the 40 CFR part

258 Criteria directly (RCRA section 4005(c)(2)), and (2) the tribe

would not be eligible for grant funds to operate its landfill program

(RCRA section 4007). If a State (or tribe) elects not to submit a

program, it may lose out on federal assistance, but Congress specified

no other penalty. In addition, unlike the situation in most States, on

some reservations, all solid waste may be disposed off-reservation.

Thus, EPA sees no particular benefit to imposing an explicit

requirement on tribes to submit a program.

Another comment argued that EPA may not require States to

demonstrate their jurisdiction over Indian lands when seeking approval

of a landfill permit program, since States ``must have jurisdiction in

order to meet the statutory mandate.'' This statement merely begs the

question of whether states do have such jurisdiction. Nonetheless, EPA

believes this issue is more properly addressed in the context of an

individual State application for program approval.

8. EPA May Establish Self-implementing Landfill Criteria Where an

Approved Adequate State or Tribal Program is Not in Place

The State of Alaska submitted comments that the Agency's tentative

determination to approve the Campo Band permit program is invalid

because EPA does not have the authority under RCRA Subtitle D to

promulgate self-implementing criteria for the disposal of solid waste.

EPA's regulations in 40 CFR part 258 are ``self-implementing'' in that

they apply directly to owners and operators of MSWLFs, and need not be

imposed through a permit or other agency action. Alaska argued that EPA

can only establish guidelines for the disposal of solid waste under

RCRA section 1008(a) and that RCRA section 4004(a) only provides the

Agency with the authority to provide definitions for what constitutes

``open dumping'' of solid waste. Alaska also argued that the Hazardous

and Solid Waste Amendments of 1984, including RCRA sections 4005(c) and

4010(c), did not broaden EPA's authority with regard to the regulation

of solid waste or shift the control of the disposal of such waste from

the States to the Agency.

EPA first notes that this comment is not timely. Two Alaska State

agencies (the Departments of Environmental Conservation and

Transportation and Public Facilities) and the Alaska State legislature

submitted comments on the proposed MSWLF Criteria, but none of the

comments challenged the Agency's authority to promulgate self-

implementing regulations under RCRA. Contrary to Alaska's assertion,

EPA did raise for public comment the issue of how the Criteria would be

implemented in States that do not have approved permit programs. 53 FR

33383 (Aug. 30, 1988). Many of the proposed standards were self-

implementing in that they could be implemented directly by an owner or

operator without State oversight. 53 FR 33382 (Aug. 30, 1988). Because

it did not comment on the ``self-implementing'' issue or file a

petition for review of the MSWLF Criteria, Alaska may not now challenge

EPA's authority to promulgate self-implementing regulations under RCRA

Subtitle D. See 42 U.S.C. 6976(a)(1); Sierra Club v. EPA, 992 F.2d 337,

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

EPA also disagrees with Alaska's substantive comment that the

Agency does not have the authority to promulgate self-implementing

criteria under RCRA Subtitle D. While EPA agrees with Alaska that the

implementation and administration of solid waste disposal is mainly a

state-lead function, RCRA Subtitle D provides the Agency with the

statutory authority to promulgate criteria for such disposal.

RCRA section 4004(a) authorizes EPA to promulgate regulations

containing criteria that distinguish between those facilities

classified as sanitary landfills and those which are open dumps. These

regulations, found in 40 CFR part 257, are more than ``definitional''

as suggested by Alaska. They establish criteria, enforceable under RCRA

section 7002(a)(1), to ensure that there is ``no reasonable probability

of adverse effects on health or the environment'' from disposal of

solid waste. 42 U.S.C. 6944(a). In enacting the Hazardous and Solid

Waste Amendments of 1984, Congress made it clear that the prohibitions

contained in the open dumping criteria promulgated pursuant to RCRA

section 4004(a) were a ``direct Federal requirement, not dependent on

the approval of a state plan * * *'' S. Rep. No. 248, 98th Cong., 2d

Sess., at 50 (1984).

In addition, RCRA section 4010(c) requires EPA to ``promulgate

revisions'' of the open dumping criteria for certain solid waste

disposal facilities ``to protect human health and the environment,''

and specifies certain minimum elements to be included in those

criteria. 42 USC 6949a(c). By using the word ``promulgate,'' which

Webster's defines to mean ``to put (a law) into action or force,''

(Webster's New Collegiate Dictionary, at 914 (1979)), EPA believes that

Congress intended the Criteria contained in 40 CFR part 258 to have the

force and effect of binding regulations. While states are to play a

central role in the implementation of the Criteria by adopting permit

programs under RCRA section 4005(c)(1)(B), Sierra Club v. EPA, 992 F.2d

337, 339 (D.C. Cir. 1993), such state programs must meet the statutory

standard of ensuring that each facility receiving hazardous household

waste or conditionally exempt small quantity generator hazardous waste

will comply with the Criteria promulgated by EPA.

As fully explained by EPA at the time it promulgated the Criteria

under RCRA section 4010(c), the Agency chose a self-implementing

approach out of a concern that States may not have the resources

available to adopt adequate permit programs within the eighteen month

time period provided by the statute (RCRA section 4005(c)(1)(B)). 56 FR

50978, 50991-93 (Oct. 9, 1991). A number of states had submitted

comments outlining this concern. Id. at 50992.

EPA was also concerned about the appropriate implementation and

enforcement of the Criteria in those states that did not adopt an

adequate permit program under RCRA section 4005(c)(1)(B). Id. at 50993.

For example, EPA had proposed that new MSWLFs would need to be

constructed in accordance with a design goal (which would have to fall

within a risk-based performance range) established by the relevant

state. 53 FR 33314, 33410 (Aug. 30, 1988). In response to a number of

comments from states that argued that they did not have the resources

to establish such design goals or to review design plans to determine

whether they met a certain risk range performance standard, EPA decided

to promulgate a design requirement that both (1) established a uniform

design requirement that could be implemented by owners and operators in

unapproved states and (2) allowed approved states to authorize an

alternative design which met a performance standard. 56 FR 51058-60

(Oct. 9, 1991). By establishing self-implementing performance standards

for design and other requirements contained in the MSWLF Criteria, EPA

could ensure that there would be protective implementation of the

Criteria in states or in Indian country without approved programs where

state or tribal oversight of a landfill design would not be present.

Id.

Contrary to Alaska's comment, EPA believes that adopting a self-

implementing approach in the Criteria is within the statutory authority

provided by RCRA Subtitle D. Clearly, by enacting RCRA section 4010(c),

Congress was expressing a concern [[Page 21198]] about the risks to

human health and the environment posed by solid waste disposal

facilities which receive hazardous waste. H.R. Conf. Rept. 2867, 98th

Cong., 2d Sess., at 117 (1984) (``environmental and health problems

caused by RCRA Subtitle D facilities are becoming increasingly serious

and widespread''). While Congress mandated that the EPA revise the open

dumping criteria, Congress did not specify the exact scope of the

revised Federal Criteria or the manner by which they would be

implemented in states without approved programs. Thus, it was left to

EPA's discretion to implement section 4010(c) in a manner that would

effectuate the statutory goals and policies reflected in the language

of RCRA, including the Hazardous and Solid Waste Amendments (HSWA).

One comment asserted that EPA may only determine the inadequacy of

a state program in the context of filing its own enforcement action

under section 4005(c)(2). The basis of this assertion is unclear,

because section 4005(c)(1)(C) is clear that EPA is to make a

determination of the adequacy of each state program, and that EPA may

make such a determination in the context of approval or disapproval of

a state solid waste plan--not necessarily in the context of an

enforcement action. Section 4005(c)(2)(A) separately gives EPA the

discretion to enforce the Criteria where EPA has determined that an

adequate program is not in place. The commenter's reading would suggest

that the adequacy of state programs will be determined only in

enforcement actions. This reading would make any EPA determination

under section 4005(c)(1)(C), and the section itself, superfluous.

The commenter further asserted that any finding of inadequacy can

only be met by EPA taking an enforcement action against the owner or

operator under RCRA sections 3007 or 3008. The comment implies that if

EPA determines that a state program is inadequate, the Agency cannot

grant solid waste management jurisdiction to a tribe within the state.

However, EPA's authority to determine the adequacy of a tribal solid

waste program is not predicated on determining that the state

regulatory program is inadequate. As discussed above, EPA's authority

to approve tribal programs is predicated on established principles of

federal Indian law, the holding in Chevron, and EPA's Indian Policy.

It is clear that section 4005(c) of RCRA required states to develop

permit programs and gave EPA the authority to evaluate state programs.

Tribes are sovereign governments with civil authority over Indian

country that is comparable to the civil regulatory authority of states

outside of Indian country. Thus, EPA continues to believe it is a

reasonable interpretation of this section and RCRA Subtitle D more

generally for tribes to have the opportunity to apply for approval from

EPA to run their own programs.

9. EPA Has the Authority To Approve Tribal MSWLF Programs on a Case-by-

Case Basis

EPA also received comments suggesting that EPA's notice announcing

its tentative determination to approve the Campo Band's application did

not comply with the requirements of the Administrative Procedure Act

(APA). One commenter argued that EPA cannot approve individual tribal

programs until it promulgates a rule which specifies the criteria and

procedures for approval. This commenter noted that other environmental

statutes which provide authority for EPA to treat tribes in the same

manner as states require EPA to promulgate regulations to implement the

tribal program. EPA disagrees that it must promulgate regulations as a

precondition of approving tribal programs. As with state MSWLF permit

programs, EPA believes that Congress has provided adequate authority to

approve tribal programs under section 4005(c) of RCRA based on the

statutory criteria contained therein. Congress did not specifically

require that EPA issue a rule specifying criteria and procedures for

approval of state programs, and EPA maintains inherent authority to

make such determinations on a case-by-case basis.

The commenter also argued that a rule is necessary before approving

any tribal program because otherwise there would be no standards for

assuring the reasonableness of treating tribes in the same manner as

states for purposes of RCRA Subtitle D, as there are under other

environmental statutes which specify an explicit role for tribes.

Another commenter asserted that EPA lacks standards for approval of

tribal or state programs, and that, if Congress were to amend RCRA to

allow for treatment of tribes in the same manner as states, it would

likely require EPA to promulgate regulations for such treatment. EPA

disagrees that standards are lacking. RCRA section 5004(c)(1)(B)

requires states to adopt and implement ``a permit program or other

system of prior approval and conditions to assure that each solid waste

management facility will * * * comply'' with the Federal Criteria in 40

CFR part 258. 42 U.S.C. 6945(c)(1)(B). RCRA section 7004(b)(1) states

that ``public participation in the development, revision,

implementation and enforcement of any regulation * * * or program shall

be provided for, encouraged, and assisted by the Administrator and the

States.'' 42 U.S.C. 6974(b)(1). As EPA explained in the tentative

determination, the Agency interprets this statutory requirement to

impose the following standards on state and tribal programs: tribes and

states must (1) have enforceable standards for new and existing MSWLFs

that are technically comparable to the Federal Criteria in 40 CFR part

258; (2) have authority to issue a permit or other notice of prior

approval to all new and existing MSWLFs within their jurisdiction; (3)

provide for public participation in permit issuance and enforcement;

and (4) show sufficient compliance monitoring and enforcement

authorities to take specific action against any owner or operator that

fails to comply with an approved MSWLF program. EPA has determined that

the Campo Band's solid waste permitting program meets these

requirements. 59 FR 24422, 24423 (May 11, 1994).

In addition, as explained in the tentative determination, EPA has

requested tribes to demonstrate that they are federally recognized,

have a government exercising substantial governmental duties and

powers, have the capability to operate a program, and have adequate

civil regulatory authority to do so. These are the criteria Congress

incorporated into the Clean Air Act, Clean Water Act, and Safe Drinking

Water Act provisions that allow EPA to treat tribes in the same manner

as states. EPA has determined that the Campo Band's program meets these

requirements. 59 FR 24422, 24423 (May 11, 1994). In fact, on May 11,

1992, EPA approved the Campo Band's application for treatment as a

state under Clean Water Act (CWA) section 518(e) for the purposes of

CWA section 106. On September 28, 1993, EPA approved the Campo Band's

application for treatment as a state under Clean Water Act section

518(e) for the purposes of CWA section 319.

Alaska argued that EPA's tentative determination to approve the

Campo Band program constitutes a proposed rule under the Administrative

Procedures Act (APA) since, in Alaska's opinion, the preamble

establishes the general standard that Alaska Native Villages are

eligible to submit MSWLF permit programs for approval. Among other

things, Alaska criticizes as misleading EPA's placement of such a

substantive rule in the ``Notices'' section of the Federal Register,

rather than the [[Page 21199]] ``Proposed Rules'' section. Alaska also

asserted that EPA has violated the Freedom of Information Act (FOIA)

requirement to ``separately state and currently publish * * *

substantive rules'' by ``de facto'' promulgation of the STIR in the

same notice in which the Agency determines the adequacy of the Campo

Band's program. EPA disagrees with Alaska's characterization of the

tentative determination. EPA acknowledges that the preamble to the

tentative determination makes reference to EPA's policy that ``Alaska

Native entities * * * may apply for permit program approval.'' 59 FR

24422, 24426 (May 11, 1994). It is clear from the context of the

discussion, however, that EPA was not trying to propose a rule with

respect to Alaska Natives, but merely was observing that RCRA does not

expressly preclude Alaska Native Villages from applying for program

approval. EPA has not proposed to approve any Native Village program

and, although the tentative determination may have been ambiguous on

this point, the Agency has not determined that any village would

necessarily satisfy the requirements for program approval. The

determination whether any Alaska Native Village will qualify to operate

a MSWLF permitting program will be made when such application, if any,

is submitted. Thus, the statement in EPA's tentative determination does

not give rights that Alaska Natives did not previously hold, nor does

it purport to divest the State of Alaska of any authority it may have

to regulate MSWLFs in Native Villages. The tentative determination and

today's action are intended to affect only the Campo Band. In addition,

EPA does not hereby purport to adopt the STIR; discussions of tribal

jurisdiction in both the tentative determination and today's action are

included for the purpose of explaining EPA's determination of the

adequacy of the Campo Band's program. If and when EPA proposes the STIR

and/or proposes to approve a Native Village program, as discussed

above, Alaska may raise its jurisdictional and other concerns at that

time and EPA will give them due consideration.

One commenter stated that Congress never intended to have EPA

delegate the authority to regulate municipal solid waste landfills to

every or any Indian tribe in the nation, because the burden on EPA

would be overwhelming. The same commenter suggested that EPA should

retain authority over Indian country. Alternatively, the commenter

suggested that EPA delegate this authority to states. EPA notes that

EPA permitting and enforcement of solid waste management in Indian

country could result in a far greater burden on the Agency than

determination of the adequacy of tribal programs. More importantly,

under Subtitle D of RCRA, EPA has no authority to enforce the Federal

Criteria, unless it determines that the applicable program is

inadequate, in which case EPA would have discretion to take enforcement

actions for violations of RCRA (RCRA section 4005(c)(2)(A)). Therefore,

EPA cannot ``delegate'' authority to states or tribes. EPA's role, as

prescribed by Congress, is limited to determining whether the solid

waste programs adopted by states or tribes are adequate to assure

compliance with the federal regulations (RCRA section 4005(c)(1)(C).)

Finally, as discussed above, under federal law EPA does not have the

power to give states jurisdiction over Indian country.

One commenter stated that the best interest of the people and

environmental laws are met by consistent yet flexible regulations

covering municipal solid waste landfills. This commenter expressed

concern that allowing hundreds of tribes to regulate solid waste will

result in inconsistency. As the comment itself noted, flexibility as

well as consistency is important in protecting human health and the

environment. Congress required EPA to set minimum standards for

landfills, and required states to adopt and implement permit programs

which would assure compliance with the federal standards. Both RCRA and

the federal regulations take into account the history of local

regulation of solid waste and the need to have solid waste requirements

be flexible enough to accommodate local needs. EPA will not approve a

state or tribal program unless it is adequate to ensure that all MSWLFs

within the state's or tribe's jurisdiction will comply with the

Criteria in 40 CFR part 258. Therefore, EPA believes that approval of

tribal solid waste programs will not result in any inconsistency that

would violate the requirements of 40 CFR part 258. It is possible,

however, that owners or operators of landfills in more than one

jurisdiction may have to meet different requirements in different

jurisdictions. This was the case prior to the federal requirements,

which merely set new national minimum standards for landfills.

One commenter questioned EPA's motives and its purpose in providing

a program adequacy ruling. RCRA itself establishes EPA's role. Section

4005(c)(1)(C) provides that ``[t]he Administrator shall determine

whether each state has developed an adequate program''. Congress

mandated that EPA determine the adequacy of state programs. EPA's

motive and purpose in providing a program adequacy determination for

tribal solid waste programs are the same as for providing such a

determination for state programs: to ensure that the appropriate

government entity is ensuring the proper management of solid waste

within its jurisdiction. As discussed above, EPA's approval of tribal

solid waste programs is consistent with federal Indian law and EPA's

Indian Policy.

One commenter stated that non-tribal regulation of the land on

which a proposed landfill would be situated is critical because

contaminated groundwater could migrate off the Reservation. In support

of this position, the commenter quoted from the Federal Register notice

in which EPA published its tentative approval of the Campo Band's

program. In the tentative determination, EPA stated that where

groundwater can migrate, ``it would be practically very difficult to

separate out the effects of solid waste disposal on non-Indian fee land

within a reservation from those on Tribal portions''. 59 FR 24422,

24425-26 (May 11, 1994). The quoted statement supports tribes'

assertions of jurisdiction to regulate solid waste management on non-

Indian fee land within a reservation. As discussed above, EPA does not

have authority to grant states jurisdiction over Indian country; in

fact, federal law limits the jurisdiction of states over Indian

country. The Campo Reservation is entirely tribal trust land.

One commenter stated that none of the statutory sections cited by

EPA in the tentative determination provides authority for EPA's action

of approving the Campo Band's program. The comment questioned the

appropriate forum for judicial challenges to EPA's action. The

statutory sections--RCRA sections 2002, 4005 and 4010--authorize

promulgation of regulations and provision of technical assistance and

provide for review and approval of state programs. Although all three

of these statutory sections support EPA's action today, EPA has the

authority to approve tribal programs under RCRA section 4005 using its

discretion to fill gaps pursuant to Chevron. The appropriate forum for

such judicial challenges is ultimately a decision for a court. However,

EPA currently believes that the appropriate forum may be the U.S. Court

of Appeals for the District of Columbia Circuit, pursuant to RCRA

section 7006(a), 42 U.S.C. 6976(a). [[Page 21200]]

B. Treating the Campo Band as a State

One commenter suggested that ``soliciting a waste stream from

several hundred thousand non-tribal members can hardly be viewed as

self-government * * *.''. EPA agrees that importation of waste does not

equate to self-government. However, the Campo Band does not rely on the

fact that it will receive waste from off-Reservation to establish that

it is self-governing. The Campo Band's application amply demonstrates

that the tribe has a government exercising substantial governmental

duties and powers. Nothing in RCRA, the Federal Criteria, or the draft

STIR would preclude a state or tribe from implementing a municipal

solid waste permitting program which includes imported waste, as long

as the state or tribal program ensures that the MSWLFs within its

jurisdiction will comply with the Federal Criteria in 40 CFR part 258.

One commenter asked whether the Campo Band has state status, what

gives them the right to form their own EPA, and whether they are no

longer California residents if they don't have to follow California

law. The Campo Band is a federally recognized Indian tribe--a sovereign

entity within the United States. Federal courts have affirmed the

sovereign status of Indian tribes in numerous judicial decisions which

have uniformly held that tribal governments retain many sovereign

powers, despite the fact that Indian tribes and tribal territories have

been incorporated into the United States. See Worcester v. Georgia, 31

U.S. (6 Pet.) 515 (1832); and United States v. Mazurie, 419 U.S. 544

(1975). As such, tribes may form their own governmental entities to

regulate their members and activities on land within their

jurisdiction. This includes the authority to form and administer their

own environmental regulatory programs. Activities in Indian country are

generally not subject to state law (see discussion under Category A

above). Nonetheless, under the Indian Citizenship Act of 1924, 8 U.S.C.

1401(a)(2), and the 14th Amendment to the U.S. Constitution, any member

of a tribe born in the United States is a citizen of the United States

and of the state where he or she resides.

Two commenters asked whether the Campo Band had the constitutional

authority to be treated as a state. Both the U.S. Constitution and the

Campo Band's Constitution provide authority for today's decision. Under

the U.S. Constitution, tribes are sovereign entities with power over

their lands and members, and the U.S. Congress is delegated the power

to regulate commerce with the tribes. U.S. Constitution, Article I,

section 8, paragraph 3. Congress has exercised this authority by

determining that EPA may treat tribes in the same manner as states for

certain purposes under several environmental statutes, including, for

example, the Clean Water Act section 518, 33 U.S.C. 1377. It is

important to note that today's action does not make the Campo Band a

state, or grant any rights to members of the Campo Band that they did

not otherwise possess, or divest the State of California of any rights

it might have with respect to the Campo Band. Today's action simply

states that EPA has determined that, for purposes of RCRA Subtitle D,

the Agency treated the Campo Band's application for solid waste program

approval in the same manner as it would treat such an application from

a state, and found it to be adequate.

One commenter supported EPA's position, stating that ``the Federal

Constitution strongly supports the conclusion that, as a general rule,

Indian tribes that constitute sovereign governments are not subject to

state solid waste management requirements'', and that the Supreme Court

``has repeatedly held that tribes are sovereign entities that `retain

attributes of sovereignty akin to those possessed by other governmental

bodies; that is, power over people and territory'''.

The Campo Band's Constitution establishes the Campo General Council

and empowers it to govern the affairs of the Tribe. Constitution of the

Campo Band of Mission Indians, Article IV. Pursuant to this power, the

General Council passed several Resolutions establishing the Campo

Environmental Protection Agency (Resolution 88-005), enacting the Campo

Band of Mission Indians Environmental Policy Act of 1990 and the Solid

Waste Management Code of 1990 (Resolution 90-0019).

C. Off-Reservation Voice in Tribal Politics, Fair Hearings

Commenters expressed concern that, despite the possibility of

negative environmental impacts to them, the Campo Band's neighbors have

no voice in tribal politics, cannot vote tribal officials out of

office, and may not receive a fair hearing in the Campo Band's

Environmental Court when actions against the landfill would negatively

affect tribal income.

EPA agrees that citizens should have a voice in the regulation of

the environment. Neighbors of the Campo Reservation have several

avenues for voicing their concerns regarding solid waste practices on

the Reservation. The Campo Band has adopted laws requiring that CEPA

take specific actions in response to complaints from any person, and

allowing any person adversely affected by CEPA's actions to challenge

CEPA in the Campo Environmental Court. See V Campo Tribal Regulations

(C.T.R.) 590.02, 590.10, and I C.T.R. 150.02.

The fact that off-Reservation neighbors cannot vote in tribal

elections is analogous to California residents who live near a landfill

in another state in which they cannot vote. EPA cannot require as a

prerequisite for program approval that a state or tribe allow non-

residents to vote in that state's or tribe's elections. EPA believes

that the procedures adopted by the Campo Band ensure that the Tribe

will consider and respond to concerns of off-Reservation neighbors. In

addition, the citizen suit provision of RCRA, which authorizes lawsuits

in federal District Court, is still available after EPA has approved a

state or tribal program.

One commenter stated that a common requirement of state program

approval includes administrative or judicial review procedures, and the

commenter alleges that the Campo Band expressly disclaimed any ability

by nontribal members to seek judicial review of Campo Band actions. The

commenter doesn't indicate where the Campo Band made such a disclaimer.

However, as discussed above, the Campo Band's program does allow

nontribal members to seek judicial review of Campo Band actions. The

Campo Band has explicitly waived sovereign immunity for purposes of

such challenges to CEPA actions in section 302 of the Campo

Environmental Policy Act.

D. Sole Source Aquifer

A number of commenters noted that the Campo/Cottonwood Creek

aquifer is the sole source of drinking water available to local

communities in the United States and Mexico, alternative water sources

would be expensive or unavailable, and EPA has designated the Campo/

Cottonwood Creek aquifer a sole source aquifer under section 1424(e) of

the Safe Drinking Water Act (SDWA). Commenters suggested that because a

proposed landfill will be located near a sole source aquifer, EPA

should disapprove the Campo Band's regulatory program.

EPA agrees that protection of groundwater resources and sole source

aquifers is of utmost importance. However, EPA cannot disapprove a

state or tribal regulatory program because a sole source aquifer exists

within its jurisdiction. Under provisions of section 1424(e) of the

SDWA, 42 U.S.C. 300h-3(e), the EPA Regional Administrator

[[Page 21201]] granted a petition for designation of a Campo/Cottonwood

Creek Sole Source Aquifer (SSA) on May 5, 1993. Notice of the

designation was published in the Federal Register on May 28, 1993 (58

FR 31024). The petition was submitted for a 400-square mile area along

the U.S./Mexico border in the vicinity of Campo, California.

Under section 1424(e) of the SDWA, once an area has been designated

a SSA:

No commitment for Federal financial assistance (through a grant,

contract, loan guarantee, or otherwise) may be entered into for any

project which the Administrator determines may contaminate such

aquifer through a recharge zone so as to create a significant hazard

to public health* * *

``Federal financial assistance'' is defined in 40 CFR 149.101(g).

Examples of projects include sewage treatment plants, funded in part by

federal grant monies, and housing projects receiving federal loans.

Neither EPA's approval of the Campo Band's solid waste program nor the

proposed landfill meet the definition of a federal financially assisted

project. Thus, the SDWA would not prohibit either the proposed landfill

or program approval.

In reviewing state and tribal regulatory programs, EPA determines

whether the programs will ensure compliance with EPA's landfill

regulations in 40 CFR part 258. EPA believes that the Campo Band's

landfill regulations, including its groundwater monitoring and

corrective action regulations, will ensure compliance with the exacting

groundwater monitoring and corrective action requirements contained in

EPA's 40 CFR part 258 regulations. EPA also believes that the Campo

Band's regulations will ensure compliance with 40 CFR 258.3 which

requires owners and operators to comply with all other applicable

federal rules, laws, regulations, or other requirements.

One commenter was concerned that there is no proposed mitigation if

the groundwater supply is contaminated. Mitigation measures for

individual landfills within the jurisdiction of a state or tribal

program are not required or used as a basis for program decisions by

EPA. However, EPA's 40 CFR part 258 requirements and the Campo Band's

regulations contain strict standards for groundwater monitoring,

corrective action and financial assurance. EPA believes protection of

groundwater resources is of utmost importance. It is the responsibility

of the Campo Band to ensure that landfills on the Reservation comply

with its regulations and permits.

One commenter asked if the Campo Band takes over operations of the

proposed landfill, will they qualify for federal funding and will the

landfill then fall under the definition of a federal financially

assisted project. This comment would require EPA to speculate without

any information about the legal or factual circumstances under which

the Campo Band might apply for federal financial assistance. EPA cannot

at this time make a determination as to whether the Campo Band would

seek or qualify for financial assistance, whether the landfill would be

a federal financially assisted project, or about the applicability of

section 1424(e) of the SDWA to such potential future financial

assistance.

E. United States-Mexico Border Issues

A number of commenters expressed concern about the potential

environmental and economic impacts of the proposed landfill on the

people and communities in Mexico. Commenters stated that the proposed

landfill poses risks to the rights of the Mexican border communities to

be free from threats to their health and natural resources.

Specifically, commenters raised siting concerns related to EPA's

responsibilities under Executive Order 12114 (E.O. 12114), entitled

``Environmental Effects Abroad Of Major Federal Actions'', and the

Agreement Between the United States of America and the United Mexican

States on Cooperation for the Protection and Improvement of the

Environment in the Border Area (La Paz Agreement).

E.O. 12114 calls for environmental assessment of major federal

actions having significant effects on the environment outside the

borders of the United States. EPA does not believe that approval of the

Campo Band's regulatory program is a major action which will have

significant environmental effects outside of the United States. As

noted above, EPA's decision regarding the adequacy of the Campo Band's

regulatory program is not a ruling on any landfill which might be

proposed under their regulatory program. EPA notes that approval of

state and tribal regulatory programs is not among the activities to

which environmental review requirements apply under EPA's rules for

implementing the Executive Order. 40 CFR 6.1002.

40 CFR 6.1002 states that review requirements apply to major

permitting or licensing by EPA of facilities which affect the global

commons or the environment of a foreign nation, including permitting

under the Clean Air Act. 40 CFR 6.1004(c) provides that the information

required to be submitted by the permit applicant satisfies the

requirements of E.O. 12114. EPA agrees that assessment and

consideration of the transboundary impacts of sites in the border zone

are extremely important. EPA has maintained open communications with

Mexico regarding the proposed landfill and the regulatory program

approval process. In June 1992, the Hazardous Waste Work Group,

established under the La Paz Agreement, formally adopted a

``Consultative Mechanism for Exchange of Information Between the United

States and Mexico on Facility Siting.'' This consultative mechanism,

although it is not legally binding, sets forth the intent of the United

States and Mexican governments to notify each other of waste sites

proposed for construction in the border area of their respective

countries. The consultative mechanism was approved by the National

Coordinators of the La Paz Agreement in 1992, and forms the basis upon

which EPA has continued to inform counterpart officials in Mexico of

developments regarding the proposed Campo municipal solid waste

landfill. EPA has made every effort to provide Mexican officials with

information on the proposed site and take their concerns about this

matter into consideration.

The Binational Hazardous Waste Work Group, as established under the

1983 La Paz Agreement, is the forum through which the United States

continues to notify and inform the government of Mexico of waste

disposal sites proposed to be constructed within the border area of the

United States which are subject to U.S. environmental regulatory

review, and which might have a transboundary impact in the Mexico

border zone. The Work Group is also the main forum for bilateral

discussions of such proposed sites. These notifications, the provision

of information by the United States to Mexico, and the nature of the

discussions that take place at the Work Group meetings are reported to

both governments at annual meetings of the National Coordinators, as

specified in the La Paz Agreement. Moreover, the government of Mexico

and its citizens were encouraged to participate in the public hearing

as part of EPA's review process for approval of the Campo Band's

regulatory program. EPA has sent Mexico extensive information on the

proposed landfill and on EPA's actions related to the proposed

landfill.

In the interest of furthering our efforts to communicate fully with

Mexico on this site, EPA coordinated a meeting between U.S., Mexican

and Campo Band government agencies on July 1, 1994. The purpose of that

meeting was to share information on the roles and

[[Page 21202]] authorities of the different agencies involved in

regulating and permitting the proposed landfill. EPA will keep the

appropriate Mexican officials fully informed on EPA's actions

concerning the Campo Band's program and the proposed landfill.

In addition, CEPA has maintained open communications with the

Government of Mexico with regard to the proposed landfill. EPA has

encouraged CEPA to continue to respond to the Mexican government's

concerns directly in the spirit of open communication.

In sum, EPA believes that the appropriate forums for raising

concerns regarding the siting of the proposed landfill are the

Binational Hazardous Waste Work Group, the National Environmental

Policy Act (NEPA) process and CEPA's permitting process. With respect

to potential environmental and economic impacts to Mexico and the U.S.,

comments have been responded to in Category K below.

F. Capability of the Campo Band

A number of commenters suggested that the Campo Band and the Campo

Environmental Protection Agency lack regulatory and enforcement history

and ability and, in some cases, selectively enforce regulations.

Commenters suggested that CEPA does not have the ability or willingness

to enforce its regulations. Some commenters suggested that EPA should

deny the Campo Band's program, reconsider the Campo Band's application

for approval of its regulatory program after a track record has been

established, and supervise the Campo Band. One commenter stated that

the Campo Band has no education or experience in the solid waste arena.

One commenter stated that it would be wrong to approve the program of

such a small organization. EPA also received comments stating that CEPA

and the Campo people are independent, capable, and concerned about

protecting their environment and water. Commenters stated that the

Campo Band's regulatory program is second to none.

EPA believes that the Campo Band's program meets or exceeds federal

standards and that the Campo Band is capable of managing its regulatory

program. The Campo Band has shown that it has jurisdiction and its

staff resources are adequate to manage its solid waste permitting

program. The Campo Band's application shows that CEPA devotes over

three full-time positions to landfill permitting, monitoring and

enforcement. The Campo Band also has contracts with firms providing

personnel with legal and technical expertise.

In addition to demonstrating that its staff resources are adequate,

the Campo Band's application demonstrates that it has management and

technical skills. CEPA employs individuals with years of environmental

regulatory experience and degrees in engineering and geology. The Campo

Band application also demonstrates that the Campo Band has entities

that exercise executive (Executive Committee), legislative (General

Council) and judicial (Campo Environmental Court) functions. The Campo

Band has also demonstrated experience in implementing public health and

environmental programs. The Campo Band has adopted codes, ordinances or

regulations governing land use planning, housing, gaming and solid

waste. CEPA has monitored development of the proposed landfill on the

Reservation and has worked closely with the State of California to

ensure that solid waste activities on the Reservation will comply with

California law. Finally, the Campo Band has demonstrated independence

between tribal regulatory entities and regulated entities.

EPA notes that prior solid waste regulatory history is not a

requirement for EPA approval of a solid waste permitting program. The

fact that Congress gave states 180 days after adoption of federal

landfill standards to adopt and implement programs ensuring compliance

with those standards indicates that Congress anticipated that states

(and tribes) may not have had such programs in place before the federal

standards were promulgated. EPA believes that tribes are fundamentally

able to regulate the environment in the same manner as states, and

notes that states have a variety of levels of experience in

environmental regulation. The ability to adopt and implement

environmental laws varies widely from state to state and tribe to

tribe. EPA evaluates each state and tribe individually to determine

whether it has adopted, and is capable of enforcing, a solid waste

program that is adequate to assure compliance with the federal

regulations. Some states have not demonstrated a history of adopting or

enforcing solid waste requirements prior to applying to EPA for program

approval under RCRA Subtitle D. EPA is taking today's action because

the Agency has determined that the Campo Band's program is adequate to

assure compliance with the federal regulations. The Tribe not only has

permitting authority, technical standards, public participation

procedures and enforcement authority that meet or exceed the federal

standards, but also the staff, resources and technical expertise

available to implement and enforce the program.

Some commenters specifically stated that CEPA has not enforced its

regulations in cases of auto crushing, septic systems, tire burial and

litter control. EPA wishes to clarify that review and approval of the

Campo Band's program is related solely to the Campo Band's landfill

permitting and enforcement program. Regulation of car crushing, septic

systems, tire burial and litter are not covered by this action and are

not legal grounds for denial of a solid waste regulatory program. EPA

suggests that commenters concerned about these activities raise their

concerns with CEPA and/or other appropriate tribal or federal agencies.

Further information regarding hazardous waste concerns involving car

crushing is provided below.

One commenter expressed concern that no matter how good regulations

are, they can't prevent pollution, it is difficult to enforce them--

that most people don't have the time, energy and money to bring citizen

suits--and that it is difficult to clean up contaminated groundwater.

EPA understands that regulations are only as good as the ability to

enforce them. EPA's regulations are designed to minimize environmental

and health impacts from landfills. Congress did not give EPA authority

to oversee directly the operations of landfills. Therefore, approving

adequate state and tribal programs to regulate landfills is the best

way to ensure that the regulations are enforced. EPA believes that the

Campo Band's program meets or exceeds federal standards and that the

Tribe has demonstrated interest in appropriately regulating facilities

under its jurisdiction.

Finally, if CEPA is unable, for whatever reason, to enforce the

program requirements, and the proposed landfill fails to comply with

the Federal Criteria, RCRA section 7002 allows any person to sue the

owner or operator of the landfill. In addition, withdrawal of program

approval may be initiated where it appears that a state or tribal

permit program may no longer be adequate to ensure compliance with the

RCRA Subtitle D Federal Criteria. Section 239.13 of the draft STIR

specifies conditions and procedures which would be used by EPA as

guidance for withdrawal of adequacy determinations.

G. Conflicts of Interest

Several commenters raised concerns that the Campo Band may have

potential conflicts of interest in [[Page 21203]] regulating a proposed

landfill that will provide income for the Tribe. These issues are

discussed below.

First, however, it is important to explain that nothing in Subtitle

D of RCRA requires that EPA consider conflict of interest in

determining the adequacy of a state or tribal solid waste permitting

program. There is language in the preamble to the draft STIR that

addresses conflicts of interest, but it merely encourages states and

tribes to work with local agencies and provide oversight to prevent

problems such as local conflicts of interest. The preamble also

incorporates the criteria used in other environmental statutes to

evaluate whether to treat tribes in the same manner as states. These

requirements are that a tribe: (1) Be federally recognized, (2) have a

government exercising substantial powers, (3) have jurisdiction over

the parties and the subject matter to be regulated, and (4) be

reasonably expected to be capable of managing the program. The

capability requirement is not defined or discussed in the draft STIR.

However, where EPA has adopted regulations addressing this

``capability'' requirement in other statutes, the Agency has considered

whether the tribe has demonstrated ``sufficient independence'' of the

regulated and regulatory entities of the tribe ``to assure effective

and fair administration of the program.'' 40 CFR 123.31, 58 FR 67981

(December 22, 1993). EPA believes that the Campo Band has met these

standards.

The proposed Campo landfill will not be operated and regulated by

the same tribal entity. The operator of the proposed landfill will not

be CEPA, but a private, non-tribal company. Muht-Hei, Inc., the tribal

business entity, is a separate tribal entity from CEPA. The Campo

Band's regulations define Muht-Hei, Inc. as the operator of any solid

waste facility on the Reservation. This situation is analogous to a

privately operated landfill owned by one state agency and regulated by

another.

One commenter stated that the Campo Band should have conflict of

interest codes for tribal office holders and board members, similar to

those in California's Government Code sections 87300, 87302 and Public

Resources Code (PRC) sections 43207, 40402 and 40709.5. The comment

asserted that the Campo Band could not meet the standards set by these

provisions.

Although not required by RCRA, the Federal Criteria in 40 CFR Part

258 or the draft STIR, the Campo Band has adopted regulations governing

conflicts of interest.3 For example, the Campo Band has adopted a

regulation governing conflicts of interest on the part of the CEPA

Board of Commissioners. This regulation provides that:

\3\Other federal statutes contain statutory provisions

establishing conflict of interest requirements for state programs.

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

Clean Air Act section 110(a)(2)(E)(ii), 42 U.S.C. 7410(a)(2)(E)(ii).

For example, under Clean Water Act section 304(i), state programs

must have a conflict provision similar to California PRC section

40402 to obtain EPA authorization. Nothing in RCRA, the Federal

Criteria in 40 CFR part 258, or the draft STIR requires such a

provision. Therefore, EPA has not required that any state or tribe

establish conflict of interest codes in order to demonstrate that a

solid waste program is adequate to assure compliance with the

Federal Criteria.

A member of the Board may not participate in decisions relating

to the governance and management of CEPA if the member has a direct

financial interest in the person or activity being regulated. Tribal

membership does not preclude participation in decisions involving

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activities on or relating to property owned by the Band.

I C.T.R. 110.10. A similar provision for judges on the Campo

Environmental Court is set forth in I C.T.R. 150.09(e). Campo law also

prohibits bribery, threats, or other efforts ``to obstruct or impede

the activities of CEPA or the Board'', or to ``commit fraud * * * with

the intent to evade or defeat Tribal environmental codes or

regulations,'' III Campo Environmental Policy Act 303(a).

EPA believes that the Campo Band has taken steps to prevent

conflict of interest through adoption of I C.T.R. 110.10, 150.09(e),

and III Campo Environmental Policy Act 303(a), quoted above. EPA also

believes that the Tribe is not ``regulating itself'', because the

actual operator of the landfill, Mid-American Waste Systems, Inc., is

not a tribal entity, and CEPA and Muht-Hei are ``sufficiently

independent to assure effective and fair administration of the

program.'' 40 CFR 123.31, 58 FR 67981 (December 22, 1993). The Tribe

has also adopted provisions allowing anyone (including non-members) to

challenge CEPA in the Campo Environmental Court. See III Campo

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

Several commenters expressed concern that the Campo Band has a

conflict of interest because it has received and will continue to

receive revenues from the operator of the landfill, and would therefore

not enforce costly requirements that could reduce tribal income. One

commenter suggested that this conflict is particularly acute because

adverse impacts of the proposed landfill may be more serious outside

the Reservation. Commenters felt CEPA did not have the incentive,

objectivity or willingness to enforce the solid waste requirements. One

commenter asked what incentive there is for tribal authorities not to

accept gifts that can influence decisions. Another commenter suggested

that approving the Campo Band's program would be like ``the fox

guarding the chicken house'', whereas states have demonstrated ability

to enforce environmental regulation over many decades. One commenter

suggested that the Tribal Chairman had prematurely approved the

landfill permit to operate by stating that the landfill will open in

June 1995. In contrast, one commenter stated that it is not true that

the economic opportunity of a landfill is more important to tribal

members than environmental protection of the land.

EPA disagrees that the Campo Band does not have the incentive,

objectivity or willingness to enforce the solid waste requirements. The

Campo Band has adopted landfill liner design and release detection

regulations which are more stringent--and more costly to implement--

than the federal or California requirements, and which are beyond those

needed to obtain EPA approval. This indicates that the Campo Band is

willing to take steps to protect human health and the environment

despite the fact that such steps will cost money and potentially reduce

revenues from the proposed landfill. In addition, CEPA makes decisions

on applications for landfill permits in accordance with its

regulations, after notice and an opportunity for public comment,

regardless of statements by the Tribal Chairman.

H. Adequacy of the Campo Band's Resources

A number of commenters expressed concern that ``there is a shortage

of funds in the backcountry which would not provide the adequate

supervision this would need'' and CEPA has inadequate resources to

implement or enforce a regulatory program. Commenters asserted that

Mid-American Waste Systems, Inc., the proposed landfill operator, is

having financial problems and asked where the Campo Band will get

resources to fund its program if Mid-American Waste Systems, Inc. fails

to provide adequate resources.

The Campo Band addressed resources in its narrative description of

the application for program approval. EPA found the Campo Band's

narrative description, including its staff resource description,

adequate. EPA does not require specific resource and staffing

requirements because each state or tribe [[Page 21204]] has different

resource requirements and strategies for ensuring compliance. EPA asks

that states and tribes list the total number of regulated facilities

within the state or tribe's jurisdiction in its application. This

information is useful in assessing whether available resources are

adequate to ensure compliance. The Campo Band's ratio of resources to

the number of regulated facilities is higher than some state regulatory

programs.

In determining whether a state or tribe's program will ensure

compliance with the federal landfill regulations, EPA does not require

that states and tribes provide financial information on where funding

for programs is generated or on how secure that funding is. As

discussed above, the Campo Band and other approved states and tribes

are expected to sustain the regulatory program presented in their

applications. Withdrawal of program approval may be initiated where it

appears that the state or tribal permit program may no longer be

adequate to ensure compliance with the RCRA Subtitle D Federal

Criteria.

I. CEPA's Authority to Stop Harm to Off-Reservation

One commenter requested that section 205 of the Tribal

Environmental Policy Act of 1990 (Act), which provides authority to

issue restraining orders and injunctions, be amended to include

protection of off-Reservation residents and environments.

Section 205(a)(2)(C) of the Act, as it read on the date EPA

published its tentative determination, provided that emergency

restraining orders could not be issued without notice to the adverse

party unless immediate and irreparable injury, loss or damage would

result to the Reservation residents or environment before notice could

be served. Section 205(b)(2)(C) did not clearly provide for preliminary

or permanent injunctions against acts that threatened the public health

or safety or the environment off-Reservation. EPA discussed the concern

raised by this comment with the Campo Band. In response, on December

11, 1994, the Campo Band General Council amended section 205 of the

Act. That section now clearly provides for issuance of emergency

restraining orders and injunctions against acts that threaten human

health, safety or welfare or the environment, without distinguishing

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

amended Act is available at EPA's office in San Francisco, at the Campo

Environmental Protection Agency's office and at the public library in

the town of Campo.

J. Campo Band Leadership and Membership

A number of commenters expressed concern regarding alleged

corruption in the Campo Band. One commenter asserted that tribal

officials are on their best behavior to obtain approval from regulatory

agencies, but have not always acted responsibly. Commenters also

asserted that tribal members intimidate off-reservation opponents to

the landfill and that the Chairman of the Campo Band had illegally

received payments from landfill project proponents. One commenter also

stated that non-tribal members had voted on tribal issues at tribal

meetings.

EPA does not believe these allegations should be considerations in

EPA's final determination regarding the adequacy of the Campo Band's

regulatory program. For the reasons described above, EPA believes that

the Campo Band's solid waste regulatory program will ensure compliance

with the federal regulatory requirements. The Campo Band created CEPA

to regulate solid waste on the Reservation. CEPA has regulatory

authorities that are separate from the authority of the Chairman of the

Campo Band and from the authorities of the tribal council. EPA has been

informed that appropriate federal agencies have been apprised of these

allegations.

K. Landfill-Specific Issues

Many commenters expressed concern regarding the potential

environmental impacts of the proposed landfill and the ability of the

landfill owner/operator to comply with applicable regulations. These

landfill-specific concerns included potential for contamination to

groundwater which flows across the United States-Mexico border, ability

to monitor and clean up or mitigate groundwater in a fractured bedrock

setting, location of a landfill in a seismic impact zone, compliance

with financial assurance requirements, strong winds, traffic problems;

and general risks to the ecosystem, economy and property values of off-

reservation residents, and to Mexican communities and citizens. A

number of commenters noted that groundwater monitoring in the fractured

bedrock setting has not been adequately addressed. One commenter

expressed concern that the landfill site should be characterized before

construction of the landfill, not during or after. Commenters expressed

concern regarding importation of waste to a groundwater dependent area

and asked about sources and types of waste to be sent to the landfill,

life expectancy of the landfill, and recycling efforts. Commenters

requested that EPA oppose the proposed facility and deny program

approval because of landfill-specific concerns. Other commenters

suggested that the landfill will be one of the safest landfills in the

country, will provide economic support and jobs for the Tribe and will

benefit other communities. Another commenter stated that the plan for

the Muht-Hei facility is very detailed and well thought out.

EPA understands that there is tremendous controversy surrounding

the proposed landfill. However, EPA does not make solid waste

permitting decisions about individual landfills under the RCRA program.

EPA's action today approves the Campo Band's solid waste regulatory

program. This program approval means that EPA has reviewed the Campo

Band's regulatory program, and has determined that it will ensure

compliance with the Federal Criteria.

Concerns regarding the proposed landfill or the ability of the

landfill to comply with applicable regulations should be raised with

the agency responsible for ensuring compliance with those regulations.

CEPA, the U.S. EPA, the Bureau of Indian Affairs (BIA) and the

California Environmental Protection Agency (Cal EPA) all have roles

with respect to the proposed landfill. It should be noted, however,

that the U.S. EPA's permitting role is limited to permitting under the

Clean Air Act.

One commenter stated that it will be adversely impacted by flaring,

dust generation, truck haul activities, training, and water and light

pollution from the landfill. Potential air pollution from flaring, dust

generation and truck haul activities are issues that are being

addressed through U.S. EPA's permitting under the Clean Air Act. With

respect to the remaining concerns, EPA's action today is a

determination that the Campo Band's solid waste permitting program is

adequate to assure compliance with the federal regulations at 40 CFR

part 258. A landfill may be constructed and operated without EPA

approval of the state or tribal program in which the landfill is

located, as long as it meets these federal requirements. EPA's

regulations were designed to minimize negative environmental impacts

from the management of municipal solid waste. However, Congress gave

EPA no authority to enforce these requirements unless it finds that the

landfill is in a state or within the jurisdiction of a tribe without an

adequate permitting program. Because EPA has determined that the Campo

Band's program is adequate, the appropriate agency to which concerns

about the actual construction and operation of the

[[Page 21205]] proposed landfill should be raised is the Campo

Environmental Protection Agency.

One commenter stated that it is unacceptable for the Campo Band to

pursue the landfill venture to the detriment of the neighboring

communities. Another commenter stated that the majority of air quality

and groundwater impacts from the proposed landfill will be off-

Reservation, that the proposed landfill will be run by a non-Indian

corporation with main offices over 1000 miles from the Reservation, and

that the proposed landfill will be dependent on off-Reservation

facilities such as materials recovery facilities (MRFs). At the same

time, this commenter stated that the proposed project appears to be an

example of ``the poisoning of Indian country''.

These issues do not directly affect the Agency's determination of

the adequacy of the Campo Band's solid waste permitting program. Any

landfill is likely to have positive and negative environmental and

economic impacts on both the community in which the landfill is located

and the surrounding communities. EPA's regulations were designed to

minimize negative environmental impacts from landfills, and all

landfills must comply with these regulations. However, landfills may be

sited in Indian country regardless of whether EPA approves tribal solid

waste programs. EPA's decision today is based upon the Campo Band's

ability to ensure compliance with the 40 CFR part 258 regulations. EPA

has determined that the Campo Band has a solid waste permitting program

that is adequate to assure compliance with those regulations.

One commenter noted that U.S. EPA's comments on the environmental

impact statement (EIS) for the proposed landfill identified serious

concerns about ability to monitor adequately for groundwater

contamination and stated that projects of this kind should not be sited

over potable groundwater basins within fractured bedrock. Another

commenter asked that EPA deny the lease for the proposed landfill.

BIA is required to approve any lease for land held in trust by the

United States for the benefit of a tribe. BIA lease approval is subject

to NEPA and BIA has determined that the Campo lease approval is a major

federal action which requires the preparation of an EIS. Both the EIS

and the lease for the proposed landfill were prepared and approved by

the BIA. EPA's comments on the EIS reflected concerns regarding

groundwater monitoring and corrective action in the fractured bedrock

setting. The Secretary of the Interior signed a Record of Decision

finalizing the EIS and approving the lease after consideration of

comments. As stated above, the decision before EPA is the Campo Band's

program adequacy; states and tribes are the lead entities responsible

for landfill permitting and enforcement. The Campo Band has developed

its own landfill permitting program and CEPA is the appropriate agency

to consider issues relating to a particular landfill on the Campo

Reservation.

One commenter asked who will be monitoring what goes on at the

proposed landfill and whether Campo would have to answer to the same

regulations as the landfills that the City of San Diego must meet. The

landfill on the Campo Reservation will be monitored by the facility

operator, with oversight by CEPA. Any landfill on the Campo Reservation

must comply with the Campo Band's laws. In addition, if EPA issues a

permit under the Clean Air Act, EPA will monitor compliance with that

permit. A landfill on the Reservation generally would not be required

to comply with any requirements imposed by the State of California or a

county or city. The Campo Band has, however, worked with Cal EPA to

ensure that the Campo Band's requirements are functionally equivalent

to California's requirements.

L. Liability for Groundwater Contamination

Several commenters were concerned about who would be liable for any

groundwater contamination caused by the proposed landfill. Both the

federal regulations and the Campo Band's regulations require

groundwater monitoring; the Campo Band's regulations go beyond the

federal standards to require monitoring of the vadose zone (soil above

the water table). If pollutants exceed specified concentrations, the

owner or operator must implement a cleanup program, and provide the

funds to pay for the cleanup. Campo Band regulations also require the

operator to provide minimum financial assurance of $1 million per

occurrence to reimburse third parties for bodily injury and property

damage.

One commenter expressed concern about the vagueness of the Campo

Band's regulation requiring that the landfill operator maintain minimum

financial assurance of $1 million per occurrence to compensate third

parties for bodily injury or property damage. The commenter expressed

concern that the amount may be inadequate, alleging that the cost of

cleaning up the Torres-Martinez facility is high, and that the operator

of that facility has declared bankruptcy.

The regulation cited by the commenter provides for $1 million to

reimburse third parties for injuries or damage, not for performing

corrective actions. Federal regulations do not require financial

assurance to compensate third parties. Therefore, the Campo Band's

regulation is in excess of federal requirements. The federal

regulations do require that landfill owners and operators establish

financial assurance for corrective action after a release has occurred

(40 CFR 258.73). This requirement is intended to minimize the

possibility that the operator will fail to provide sufficient funds to

clean up contamination. The Campo Band's regulations (V.C.T.R. 530.41,

530.93), like the federal regulations, require financial assurance in

the full amount of the estimated cost of the corrective action in

addition to the provision for reimbursing third parties noted above.

Moreover, the Campo Band's regulations go beyond the federal

regulation. The Campo Band's regulations require that operators provide

financial assurance for ``known or reasonably foreseeable'' corrective

action--before any release has occurred.

M. Purpose and Effect of Program Approval

One commenter recommended that EPA deny the Campo Band's program

because the primary intent of approval is to facilitate the operation

of the proposed landfill. The primary intent of EPA's approval of state

and tribal programs under Subtitle D of RCRA is to ensure that solid

waste permitting programs are in place which will ensure compliance

with the federal regulations. EPA believes that the Campo Band's

program will ensure compliance of the Federal Criteria. The fact that

the federal regulations provide some flexibility to landfills in

approved states and tribes and that EPA's approval of a state or tribal

program may facilitate operation of some landfills is not an adequate

reason to disapprove a state or tribal program. In fact, most states

and several tribes are pursuing program approval in part because some

of the flexibility provisions will facilitate construction and

operation of landfills within their jurisdiction. EPA designed the

Federal Criteria with flexibility so that state and tribal regulatory

agencies could implement the Criteria taking into account local

conditions, while specifically setting criteria which are protective of

human health and the environment.

[[Page 21206]]

One commenter suggested that EPA's ultimate responsibility is to

protect the environment. This commenter also stated that the CEPA

regulations will not eliminate or mitigate risks such as the risks to

the Sole Source Aquifer at the proposed project site. EPA disagrees

with the commenter's statement that CEPA regulations will not eliminate

or mitigate the risks at the proposed project site. Prior to

promulgation of the Federal Criteria in 1991, a landfill could have

been constructed and operated on the Campo Reservation with fewer

restrictions than those contained in the 40 CFR part 258 Criteria. The

federal regulations were adopted to minimize environmental and public

health risks from landfills. These regulations impose strict standards

for design, construction, operation, monitoring, corrective action,

closure, post-closure care and financial assurance. The Campo Band's

regulations set forth stringent standards that meet or exceed the

federal standards. CEPA is responsible for ensuring that these

standards are met. Although regulations can never completely eliminate

risks from a project, the Campo Band has adopted a set of standards in

addition to the federal minimum requirements which should result in the

mitigation of risks associated with the proposed landfill.

One commenter gave three reasons why owners and operators complying

with approved state/tribal programs should not be considered to be

complying with the federal regulations. First, only certain elements of

approved programs may be modified in approved programs. Second, the

Campo Band is not a ``state'', and therefore cannot modify the

requirements in 40 CFR part 258. Third, the statement in the tentative

determination shows that a purpose of EPA's action is to restrict

citizen suits and create defenses for entities violating the federal

regulations.

EPA disagrees with all three points. First, EPA approval of a state

or tribal program does not allow the approved state or tribe to modify

or waive entirely the requirements in 40 CFR part 258. The regulations

in 40 CFR part 258 allow alternatives to the prescribed federal

requirements only when certain criteria are met. These alternatives are

allowed in the federal regulations because EPA believes that when the

Federal Criteria are met, the alternatives will protect human health

and the environment as well as the prescribed requirements. EPA's

determination that the Campo Band's program is adequate to ensure

compliance with the Federal Criteria is based on the fact that any

alternatives allowed by the Campo Band's laws meet the criteria

required by the federal regulations. Second, as explained above, EPA

has authority to treat tribes in the same manner as states for purposes

of implementing RCRA Subtitle D solid waste programs. Third, EPA's

action is not intended to restrict citizen suits or provide defenses

for landfill owners or operators who violate the federal regulations.

If a landfill owner or operator violates the Federal Criteria, it may

be subject to citizen suits. EPA's statement in the tentative

determination simply expressed the Agency's opinion that, where EPA has

found a state or tribal requirement equivalent to the federal

requirement, a court is likely to find compliance with the state or

tribal requirement equivalent to compliance with the federal

requirement.

One commenter raised concerns about possible increases in permitted

capacity of the landfill without public review and comment. The

commenter also asked if, with program approval, the Campo Band will be

able to designate the Class III (solid waste) landfill a Class II

(hazardous waste) landfill, bypassing public participation and claiming

that enough environmental studies of the area have been done.

The Campo Band's program complies with the public participation

requirements of RCRA section 7004(b)(1). In addition, EPA's draft STIR

sets forth general standards for public involvement in permit

determinations. EPA reviewed the Campo Band's public involvement

requirements and found that they are adequate.

In general, issues regarding permitted capacity are not within the

scope of program approval and should be addressed to CEPA. The proposed

landfill is not authorized to accept hazardous waste. Class II and

Class III are California State and Campo Band classification categories

for waste disposal facilities. Program approval will not affect the

Campo Band's ability to designate a facility Class II or III. Nor will

program approval affect the Campo Band's public participation

requirements or requirements that environmental studies be done.

Program approval simply indicates that the Campo Band's municipal solid

waste landfill permitting and enforcement program will ensure

compliance with the Federal Criteria. EPA and Campo Band regulations

prohibit disposal of regulated hazardous waste in landfills receiving

municipal solid waste unless the landfill is permitted to receive

hazardous waste by the U.S. EPA or an authorized state or tribe. EPA

has not issued a hazardous waste permit for a facility on the Campo

Reservation, and the Campo Band is not currently authorized for the

RCRA hazardous waste program and, therefore, cannot issue a RCRA

hazardous waste permit. For more discussion of hazardous waste issues,

see the responses to comments under Category P below.

Several commenters raised the concern that the Campo Band would be

able to modify and waive federal requirements. EPA does not agree with

this characterization of the flexibility allowed in the federal

regulations. The federal regulations contain detailed criteria that

landfill owners and operators must meet. In limited cases, the

regulations provide that the director of an EPA-approved program may

allow alternatives if the owner or operator demonstrates that the

landfill meets certain criteria. For example, 40 CFR 258.21 specifies

that solid waste must be covered with six inches of earthen material at

the end of each operating day. That same section provides that in an

approved program the Director may approve alternative materials of

alternative thickness if the owner or operator can demonstrate that

such alternatives control disease vectors, fires, odors, blowing litter

and scavenging without presenting a threat to human health and the

environment. The Director may not approve alternative cover that can't

meet the demonstration. The Director also may not decrease the

frequency of applying cover. The Director may only waive daily cover

requirements temporarily when the owner or operator demonstrates that

extreme climatic conditions make meeting the requirements impractical.

EPA has carefully reviewed the Campo Band solid waste program and

determined that it does not provide for any modifications or waivers

which would not be allowed under the federal regulations.

One commenter was concerned about the ability to assess ``non-

specified, future'' alternatives to the Federal Criteria which would be

allowed under an approved program. The comment essentially questions

EPA's allowance of alternatives in the federal regulations. EPA

explained its rationale for providing such discretion when it

promulgated the federal regulations, 56 FR 50977, 50984-88 and 50992-94

(October 9, 1991). Any challenge to these regulations must have been

brought within ninety days of the promulgation of these regulations,

pursuant to RCRA section 7006. EPA's approval of the Campo Band's

program is based on EPA's conclusion that the Campo Band's laws contain

all the criteria set forth in the federal regulations for allowing

alternatives to [[Page 21207]] the self-implementing federal

requirements.

Several commenters stated that the Campo Band would be able to set

up defensive barriers to citizen enforcement actions to correct

problems at the landfill. EPA does not agree. The owners and operators

of all landfills will be subject to citizen suits under section 7002 of

RCRA. That section allows any ``person'' to sue any ``person'' who is

violating any permit, standard, regulation, condition, requirement,

prohibition, or order under RCRA, or who has contributed to the

handling of solid waste which may present an imminent and substantial

endangerment to health or the environment. Under this provision,

citizens may sue landfill owners or operators for any violation of RCRA

or the federal regulations. The citizen suit provision will remain in

effect--and be equally available to citizens--whether EPA approves the

Campo Band's solid waste permitting program or not. In addition, the

Campo Band has expressly waived its sovereign immunity to allow any

affected person to challenge CEPA actions in the Campo Environmental

Court. See III Campo Environmental Policy Act 302. EPA's approval will

not enable the Campo Band, CEPA or Mid-American Waste Systems, Inc. to

establish any defensive barriers to citizen enforcement actions.

One commenter stated that program approval is a dangerous

precedent-setting move because the proposed landfill is the largest

proposed solid waste facility in the nation on an Indian reservation.

EPA does not believe that approval of regulatory programs will

necessarily set a landfill siting precedent for Indian country.

Landfills may be sited in states or in Indian country without EPA

approval of the state or tribe's regulatory program. All such landfills

must meet the Federal Criteria in 40 CFR part 258. In addition, EPA

encourages states and tribes to establish local regulatory structures

to ensure that municipal solid waste is managed in an environmentally

protective manner. The Campo Band has set standards which are more

stringent than federal standards, making the proposed landfill more

protective of human health and the environment--and making compliance

potentially more costly--than if there were no tribal regulatory

program in place. EPA recognizes that some of the 40 CFR part 258

flexibility which may be provided to municipal solid waste landfills by

approved states and tribes may be important to the proposed landfill.

However, EPA believes that tribes should have the same opportunities as

states to establish systems of landfill permitting and enforcement. As

discussed above, states generally may not regulate solid waste

management in Indian country, and EPA does not generally have

permitting or enforcement authority under RCRA Subtitle D. Therefore,

allowing tribes to establish solid waste regulatory programs ensures

oversight of solid waste practices in Indian country.

One commenter suggested that EPA should deny approval of the Campo

Band program because landfills deprive present and future generations

of valuable resources and encourage waste production instead of

pollution prevention and waste reduction. EPA agrees that waste

reduction and pollution prevention are preferable methods of managing

municipal solid waste to landfilling, to the extent possible. In

response to the growing national concern about solid waste management,

EPA developed a national strategy for addressing municipal solid waste

management problems. This strategy is set out in a document entitled,

``The Solid Waste Dilemma: An Agenda for Action,'' which EPA issued in

February 1989. The cornerstone of the strategy is ``integrated waste

management,'' in which the following solid waste reduction and

management options work together to form an effective system: source

reduction, recycling, and combustion and landfilling. EPA encourages

waste reduction and recycling of municipal solid waste. However, EPA

also recognizes the need for landfills. Congress required EPA to adopt

federal regulations establishing minimum national standards for

landfills. However, Congress emphasized, and EPA believes that it is

preferable, for local, state and tribal governments to adopt their own

solid waste permitting and enforcement programs so that landfills are

regulated in a manner that is as environmentally responsible as

possible. Therefore, EPA supports pollution prevention as the preferred

waste management alternative while continuing to approve state and

tribal regulatory programs.

One commenter suggested that the need to site a landfill on an

Indian reservation is a problem that has been caused by the government

of the United States. Other commenters expressed concern that they are

paying the price for what happened to Indians years ago. One commenter

noted that no one is protesting other problematic landfills in San

Diego County that are not on Indian land. This commenter also noted

that ``Mexico is a disaster, but I have the Mexican people come and

complaining here.''

EPA acknowledges that there is a great deal of controversy

surrounding the proposed landfill. The proposal to site the landfill on

the Campo Reservation for the purpose of economic development has

raised a great deal of interest and concern among various parties. EPA

encourages open communication among these groups and will work to

facilitate communication where possible.

However, EPA strongly believes that Indian tribes should have the

same opportunities to regulate the environment available to them as are

available to states. This is consistent with EPA's Indian Policy and

with federal Indian law and environmental law, including RCRA. EPA does

not believe that a state or tribal application should be evaluated in a

different manner because of controversy surrounding a proposed

landfill. Neighbors of proposed landfills in California, for example,

have raised concerns about such landfills. These concerns do not

diminish the adequacy of the state's program. Likewise, concerns

regarding the proposed landfill are most appropriately handled by CEPA.

A number of commenters were concerned that the proposed landfill is

being sited on an Indian reservation because the landfill and its

operator, Mid-American Waste Systems, Inc., will not have to comply

with Federal, State and municipal laws and cannot be monitored by the

Government. As stated above, landfills in Indian country must comply

with Federal regulations, including EPA's 40 CFR part 258 landfill

requirements. Generally, State and local civil regulatory laws do not

apply in Indian country. Cabazon, supra. However, the Campo Band has

established a regulatory system which is as stringent as State and

Federal regulatory systems. The Campo Band is not required to establish

a landfill permitting and enforcement system, but has elected to do so.

Therefore, the proposed landfill will have to comply with the Campo

Band's standards. In addition, CEPA and the California Environmental

Protection Agency (Cal EPA) have established a cooperative agreement

concerning permitting and enforcement at the proposed landfill.

One commenter expressed concern that landfill proponents rather

than the Campo Band launched a signature campaign in support of the

proposed landfill. Although EPA recognizes that the proposed landfill

itself is highly controversial, EPA's decision regarding the Campo

Band's regulatory program is [[Page 21208]] not an approval or

disapproval of the proposed landfill. Moreover, EPA's decision did not

take into account the sources of support for or opposition to the

landfill. Nor is EPA's decision based on the number of comments

supporting or opposing program approval. EPA considered and responded

to all comments on their merits.

N. EPA Public Participation Procedures

A number of commenters expressed concern regarding public

involvement activities related to EPA's tentative program approval of

the Campo Band program. Specifically, commenters felt that the question

and answer session and the public hearing were held too far away from

the proposed landfill site in a community that is not potentially

affected and does not rely on groundwater, and that EPA should have

held these events at the Mountain Empire High School. One commenter

also suggested that EPA hold additional hearings closer to the sources

of potential impacts. One commenter expressed thanks to EPA for

conducting the hearing in the city of Alpine.

EPA considered a number of possible hearing locations in the area

and found that the Alpine Elementary School was the most appropriate

location taking into account the size of rooms available, the potential

attendance at the hearing, and distance from local communities. The

Alpine Elementary School auditorium was the only available room EPA

identified which was large enough to hold the number of people EPA

expected to attend the hearing. A large number of people attended the

hearing and provided comments. It was unfortunate that the location was

not closer to the Campo Reservation. However, EPA also provided an

extended public comment period, from May 11 to August 1, 1994 for

submittal of written comments.

One commenter felt that the Federal Register notice should have

been mailed to people and organizations who submitted previous written

comment or made statements at previous U.S. EPA public hearings on the

proposed landfill. First, EPA would like to clarify that extensive

efforts were made to make all relevant materials available to all

interested parties. EPA had not held previous hearings on the proposed

landfill. (EPA has a direct permitting role for the proposed landfill

under the Clean Air Act. However, the Clean Air Act draft permit

hearing was held after the hearing on tentative program approval. Both

hearings were held in the same location.)

Second, in accordance with RCRA section 7004(b)(1), EPA published

the tentative determinations in the Federal Register and provided an

opportunity for public comment. A public hearing may be held at the

discretion of the EPA Regional Administrator, in which case EPA must

provide public notice of the hearing. EPA conducted a public hearing

after receiving public interest in holding a hearing. EPA sent the

entire Federal Register notice out to persons who requested the notice.

EPA also published notice of the tentative decision and the hearing in

local newspapers. In addition, EPA developed a fact sheet on the

tentative decision which was sent to approximately 150 people prior to

the public hearing. Persons receiving the fact sheet were encouraged to

contact EPA to discuss questions and request more information such as

the Federal Register notice. EPA also placed extensive information on

the tentative decision, including the Campo Band's application for

program approval, in two local repositories (the CEPA office and the

public library in the town of Campo) and at the EPA Region 9 office in

San Francisco. Information about the locations of the application and

other material was noted in the fact sheet that was distributed.

One commenter also suggested that EPA's announcement failed to

indicate which portions of the Campo Band's program were ``as

stringent'' as the Federal regulations and which portions were not. The

underlying premise of EPA's tentative determination of adequacy was

that all portions of the Campo Band's program were as stringent as the

Federal regulations. This was indicated in the fact sheets. A detailed

analysis of how the Campo Band's program compared with the Federal

requirements was available in the Federal Register notice and the

information in the repositories.

One commenter was concerned that many people in Mexico could not be

at the hearing and could not speak up. EPA made extensive efforts to

encourage participation from Mexico. Several speakers from Mexico were

present at the hearing and made comments. In order to facilitate their

participation, EPA provided simultaneous translation, so that hearing

participants could understand the comments made in either Spanish or

English, and so that the court reporter, who recorded all comments at

the hearing, could record those made in Spanish for EPA's response.

O. The Campo Band's Application for Program Approval

Two commenters raised concerns about the completeness of the Campo

Band's solid waste permitting program application. This concern is

related to two issues discussed in the tentative determination, 59 FR

24422, 24426-27 (May 11, 1994).

First, as EPA explained in the tentative determination, specified

portions of the Campo Band's then-existing codes and regulations were

not adequate to assure compliance with the federal regulations.

However, at the time of the tentative determination, the Campo Band had

submitted draft revisions to those portions of its codes and

regulations. Those draft revisions--Addendum I to the application--were

included in the information made available to the public during the

public comment period. EPA explained in the tentative determination

that it had reviewed these draft revisions and that they were adequate

to assure compliance with the federal regulations. EPA went on to

explain that, if the draft revisions were fully adopted before EPA's

final determination, the Agency would approve the Campo Band's entire

solid waste permitting program--including the revised portions. This

gave the public an opportunity to comment on whether EPA should approve

the program if the draft revisions replaced the then-existing

provisions. On June 13, 1994 the Campo Band submitted the final, fully

adopted regulations as Addendum II to its application. These final

regulations were also made available to the public during the public

comment period. The final regulations are identical to the regulations

as modified by the draft revisions.

Second, several of the Campo Band's solid waste regulations in

effect at the time the Campo Band submitted its application had been

adopted as emergency regulations--without public participation--and

would, pursuant to Campo law, expire unless affirmed as final

regulations. In its tentative determination, EPA explained that these

regulations must be affirmed, unaltered, prior to EPA's final

determination in order for EPA to approve those portions of the Campo

Band's solid waste permitting program. The Campo Band submitted the

affirmed, permanent regulations to EPA on June 13, 1994. These final

regulations were made available to the public during the public comment

period. The final regulations are identical to the emergency

regulations.

Therefore, EPA's final determination is based on provisions of the

Campo Band's laws and regulations which were made available to the

public during the public comment period. [[Page 21209]]

One commenter suggested that EPA's comments on the Campo Band's

draft application revealed a number of serious inadequacies in the

Campo Band's regulations. EPA did make a number of substantial comments

on the Campo Band's draft application. However, in response to EPA's

comments, the Campo Band either made necessary changes to its program

or the application, or explained to EPA's satisfaction how the existing

program met the federal standards. EPA worked very closely with CEPA

for many months in reviewing and revising its regulations. The review

of regulatory programs is a lengthy and detailed process. The process

is particularly complicated when EPA reviews an existing and complex

regulatory program like the Campo Band's. EPA's comments on the Campo

Band's draft application were the first in a series of comments on the

Campo Band's program and requested clarifications of many aspects of

the Campo Band's program.

P. Hazardous Waste Issues

A number of commenters expressed concern over who will ensure that

hazardous wastes are not taken at the proposed landfill because the

state has no enforcement power on an Indian reservation. One commenter

stated that there would not be a hazardous waste problem at the

landfill because people know what they can and cannot put in their

trash and loads are checked for hazardous waste.

Federal requirements under 40 CFR 258.20 prohibit receipt of

hazardous waste at municipal solid waste landfills. Owners and

operators of landfills must comply with these requirements. The Campo

Band's regulations require procedures which are as stringent as the

federal standards. CEPA is responsible for ensuring that landfills

comply with these standards.

Several commenters asked what has been done about allegations of

possible illegal disposal of hazardous waste at a car crushing

operation on the Campo Reservation. Under the RCRA hazardous waste

program, EPA has direct permitting and enforcement authority. Because

there was a possible hazardous waste violation, EPA inspected the site.

EPA representatives visited the site on March 1, 1994. A site

investigation report was completed in August, 1994. The investigation

found no hazardous waste at the site and no evidence of past disposal

of hazardous waste.

Q. EPA's Program Review Procedures

The San Diego Astronomy Association (SDAA) submitted comments

concerning the potential impacts of the proposed landfill on the SDAA's

observatory, which the SDAA stated is located approximately 1 mile

downwind from the proposed landfill. The SDAA asserted that its

concerns should be given special consideration, over that of

residential and agricultural interests, because it is a pre-existing,

government-recognized, public, educational and scientific organization.

As stated earlier, today's decision is on program approval for the

Campo Band, not on permitting the proposed landfill. Therefore, the

specific comments on the potential impacts from the proposed landfill

are not relevant to this determination.

The SDAA also asserted that EPA has stated no precedents for

granting program approval under similar circumstances, and that

therefore it would be ``irresponsible, unprecedented, litigious, and a

failure of the public trust'' to approve the Campo Band's program. EPA

understands the term ``similar circumstances'' in the comment to mean

approval of a program under which a landfill could be operated within 1

mile of a facility for observing astronomical phenomena and educating

the public. However, EPA is aware of no law preventing the siting or

operation of a landfill near such facilities. Therefore, a landfill may

be constructed and operated within 1 mile of SDAA's observatory

regardless of whether EPA approves the Campo Band's solid waste

permitting program.

If the term ``similar circumstances'' in the comment was intended

to mean the physical location of the landfill which has been proposed

for the Campo Reservation, EPA's responses to concerns about the

landfill itself are addressed under Category K above. If the intent was

to refer to approval of tribal solid waste programs, EPA's authority to

approve tribal solid waste programs is discussed above under Category

A. EPA therefore believes that the precedential effect of approving the

Campo Band's program will be to ensure that solid waste management in

Indian country is properly regulated to protect human health and the

environment.

One commenter expressed concern that EPA's decision-making

procedure was not sufficiently conservative in placing the burden of

substantiation on the permitting requester. Congress established the

standard to be met by state and tribal solid waste programs in RCRA

section 4005(c)(1)(B)--they must demonstrate that landfills within

their jurisdictions will comply with the Federal Criteria in 40 CFR

part 258. As EPA explained in its tentative approval of the Campo

Band's program, EPA interprets this standard to require, at a minimum,

demonstrating that the state or tribal program's technical requirements

are as stringent as the federal regulations, that the state or tribe

will issue permits to all new and existing landfills, that the

requirements and permits are enforceable, and that public participation

in permitting and enforcement actions is provided. EPA believes that

the Campo Band's program meets these standards.

EPA's procedure in reviewing applications for approval of solid

waste permitting programs is very lengthy and detailed. The state or

tribe seeking a program approval determination must submit an

application that consists of a letter from the program director

requesting program approval, a description of the program, copies of

all applicable statutes, regulations and guidance, and a legal

certification that the laws are fully effective and enforceable. The

burden of demonstrating the adequacy of the program is on the

applicant. In the case of the Campo Band's application, EPA worked

closely with CEPA, carefully evaluating each provision of the Tribe's

program and in many cases requiring substantial changes to the program

before making the tentative determination that the program assures

compliance with the federal regulations.

The SDAA requested that EPA provide the professional qualifications

of the EPA staff and management involved in making the determination,

in order that the SDAA can assess their professional maturity and

wisdom and determine what level of astronomy background should be

provided to defend the SDAA opposition to the determination. EPA

believes that the question of whether the Agency has properly approved

a state or tribal solid waste program should be addressed through

discussion of the standards and procedures the Agency has applied. The

standard and the procedures employed by EPA in evaluating the Campo

Band's solid waste program, and the basis for EPA's determination that

the Campo Band's program is adequate, have been fully set forth in the

tentative determination, published at 59 FR 24422 (May 11, 1994), and

in this response to comments and final determination.

IV. Decision

In the tentative determination, EPA proposed to approve specified

parts of the Campo Band's program for which existing tribal law was

adequate to ensure compliance with the Federal Criteria. At that time

EPA also proposed [[Page 21210]] to approve all of the Campo Band's

program if draft regulatory requirements submitted to EPA with its

April 18, 1994 application addendum were adopted before EPA's final

determination. In addition, EPA noted that before EPA could grant

partial or full program approval, the Campo Band had to reaffirm the

February 13, 1994 promulgation of emergency regulations submitted with

its final application. On June 13, 1994, EPA received the final,

adopted revisions to the Campo Band's MSWLF permit program. In

addition, as explained under Category I above, EPA received amendments

to the Tribal Environmental Policy Act of 1990 made in response to

comments received by EPA during the public comment period.

After reviewing these revisions, and after thorough consideration

of the public comments, I conclude that the Campo Band's application

for adequacy determination meets all of the statutory and regulatory

requirements established by RCRA. Accordingly, the Campo Band is

granted a determination of adequacy for all portions of its municipal

solid waste permit program.

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

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

Criteria in 40 CFR part 258 independent of any state/tribal enforcement

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

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

state/tribal program approved by EPA should be considered to be in

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

9, 1991).

Today's action takes effect on the date of publication. EPA has

good cause under section 553(d) of the Administrative Procedure Act, 5

U.S.C. 553(d), to put this action into effect less than 30 days after

publication in the Federal Register. All of the requirements and

obligations in the Tribe's program are already in effect as a matter of

tribal law. Today's action is a determination that these requirements

ensure compliance with the Federal Criteria in 40 CFR part 258 and does

not impose any new requirements with which the regulated community must

begin to comply, nor do the Campo Band's requirements become

enforceable by EPA as federal law. Consequently, it is not necessary to

give notice prior to making its approval effective.

Compliance With Executive Order 12866

The Office of Management and Budget has exempted this notice from

the requirements of section 6 of Executive Order 12866.

Certification Under the Regulatory Flexibility Act

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

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

significant economic impact on a substantial number of small entities.

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

therefore, does not require a regulatory flexibility analysis.

Unfunded Mandates Reform Act

Under section 202 of the Unfunded Mandates Reform Act of 1995 (the

Act), Pub. L. 104-4, which was signed into law on March 22, 1995, EPA

generally must prepare a written statement for rules with Federal

mandates that may result in estimated costs to State, local, and tribal

governments in the aggregate, or to the private sector, of $100 million

or more in any one year. When such a statement is required for EPA

rules, under section 205 of the Act EPA must identify and consider

alternatives, including the least costly, most cost-effective or least

burdensome alternative that achieves the objectives of the rule. EPA

must select that alternative, unless the Administrator explains in the

final rule why it was not selected or it is inconsistent with law.

Before EPA establishes regulatory requirements that may significantly

or uniquely affect small governments, including tribal governments, it

must develop under section 203 of the Act a small government agency

plan. The plan must provide for notifying potentially affected small

governments, giving them meaningful and timely input in the development

of EPA regulatory proposals with significant Federal intergovernmental

mandates, and informing, educating, and advising them on compliance

with the regulatory requirements.

The Act generally excludes from the definition of a ``Federal

intergovernmental mandate'' (in sections 202, 203, and 205) duties that

arise from participation in a voluntary Federal program. The Campo

Band's request for approval of a MSWLF program is voluntary and imposes

no Federal intergovernmental mandate within the meaning of the Act.

Rather, by having its MSWLF program approved, the Tribe will be able to

implement the RCRA Subtitle D program over landfills within its

jurisdiction, and to exercise the flexibility allowed in the rules to

conform landfill requirements to site-specific conditions.

In any event, the Agency does not believe that approval of the

Tribe's program would result in estimated costs of $100 million or more

to State, local, and tribal governments in the aggregate, or to the

private sector, in any one year; this is due to the small size of the

Tribe's program, and the additional flexibility that the Tribe can

exercise. Thus, today's notice is not subject to the written statement

requirements in sections 202 and 205 of the Act.

As to section 203 of the Act, the approval of the Tribal program

will not significantly or uniquely affect small governments other than

the applicant, the Campo Band. As to the applicant, the Tribe has

received notice of the requirements of an approved program, has had

meaningful and timely input into the development of the program

requirements, and is fully informed as to compliance with the approved

program. Thus, any applicable requirements of section 203 of the Act

have been satisfied.

Authority: This notice is issued under the authority of sections

2002, 4005 and 4010(c) of the Solid Waste Disposal Act as amended;

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

Dated: April 12, 1995.

Felicia Marcus

Regional Administrator.

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

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