Authorization of Indian Tribe's Hazardous Waste Programs Under RCRA Subtitle C

SUMMARY: Today's proposed rule will further the Policy for the

Administration of Environmental Programs on Indian Reservations (Nov.

8, 1984) (``EPA's Indian Policy'') by clarifying the eligibility of

Tribal governments to obtain authorization from EPA to implement a

Subtitle C hazardous waste program in lieu of EPA under RCRA section

3006, and to obtain Federal grants to support the development and

implementation of such a program under RCRA section 3011. This proposal

identifies the standards and procedures that would govern the

submission and review of Indian Tribes' authorization applications. It

also discusses the circumstances under which Tribes could be approved

to operate a partial Subtitle C hazardous waste program.

DATES: Comments on this proposed rule must be submitted on or before

August 13, 1996.

ADDRESSES: Commenters must send an original and two copies of their

comments referencing docket number x-96-xxxx-xxxxx to: (1) If using

regular US Postal Service mail: RCRA Docket Information Center, Office

of Solid Waste (5305W), U.S. Environmental Protection Agency

Headquarters (EPA, HQ), 401 M Street, SW, Washington, DC 20460 or (2)

if using special delivery, such as overnight express service: RCRA

Docket Information Center (RIC), Crystal Gateway One, 1235 Jefferson

Davis Highway, First Floor, Arlington, VA 22202. Comments may also be

submitted electronically through the Internet to: RCRA-

D[email protected]. These comments should be identified by the

docket number x-96-xxxx-xxxxx, and submitted as an ASCII file to avoid

the use of special characters and encryptions.

Please do not submit any Confidential Business Information (CBI)

electronically. An original and two copies of CBI must be submitted

under separate cover to: RCRA CBI Document Control Officer, Office of

Solid Waste (5305W), U.S. EPA, 401 M Street, SW, Washington, DC 20460.

Public comments and supporting materials are available for viewing

in the RCRA Information Center (RIC) located at Crystal Gateway One,

1235 Jefferson Davis Highway, First Floor, Arlington, VA. The RIC is

open from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal

holidays. To review docket materials, please make an appointment by

calling (703) 603-9230. The public may copy a maximum of 100 pages from

any regulatory docket at no charge. Additional copies will cost $.15/

page.

FOR FURTHER INFORMATION CONTACT: For general information, contact the

RCRA Hotline, Office of Solid Waste, U.S. Environmental Protection

Agency, 401 M Street, S.W., Washington, D.C. 20460, (800) 424-9346; TDD

(800) 553-7672 for the hearing impaired; in the Washington, D.C. metro

area, the telephone number is (703) 412-9810, TDD 703-412-3323.

For more detailed information, contact Felicia Wright, Office of

Solid Waste (5303W), U.S. Environmental Protection Agency, 401 M

Street, S.W., Washington, D.C. 20460; telephone (703) 308-8634.

SUPPLEMENTARY INFORMATION: In this document, EPA is proposing

amendments to the RCRA Subtitle C regulatory definitions, authorization

standards, and authorization procedures, which are codified in subpart

A of 40 CFR part 270 and in subpart A of 40 CFR part 271.

The index is available on the Internet. Please follow these

instructions to access the information electronically: Gopher:

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

Dial-up: (919) 558-0335.

This report can be accessed from the main EPA Gopher menu in the

directory: EPA Offices and Regions/Office of Solid Waste and Emergency

Response (OSWER)/Office of Solid Waste (RCRA)/Hazardous Waste/

........./..........

FTP: ftp.epa.gov

Login: anonymous

Password: Your Internet Address

Files are located in /pub/gopher/OSWRCRA

The official record for this action will be kept in paper form.

Accordingly, EPA will transfer all comments received electronically

into paper form and place them in the official record, with all of the

comments received in writing. The official record is the paper record

maintained at the address in ``ADDRESSES'' at the beginning of this

document.

EPA's responses to comments, whether written or electronic, will be

printed in the Federal Register, or in a ``response to comments

document'' placed in the official record for this rulemaking. EPA will

not immediately reply to commenters electronically other than to

clarify electronic comments that may be garbled during transmission or

conversion to paper form.

I. Overview of This Proposed Rulemaking

This proposal further implements the Agency's 1984 Indian Policy by

amending certain definitions, standards, and procedures within the

regulations promulgated pursuant to RCRA Subtitle C (42 USC 6921--

6939e) that govern EPA's authorization of States' hazardous waste

programs. The overall effect of these amendments would be to clarify

that Indian Tribes may obtain full or partial authorization from EPA to

operate Tribal hazardous waste management programs in lieu of EPA's

Federal regulatory program, and to clarify that authorized Indian

Tribes, in the same manner as authorized States, may obtain RCRA

section 3011 grant funds to aid the development and implementation of

their Subtitle C management programs.

This notice proposes to add definitions of ``Indian Tribes'' and

``Indian Country'' to the Subtitle C program definitions codified at 40

CFR 270.2. Moreover, the existing definition of ``States'' in section

270.2 would be amended to extend to ``Indian Tribes'' the ability to

obtain program authorization from EPA under RCRA section 3006, and

financial assistance from EPA under RCRA section 3011.

EPA proposes to amend several sections of subpart A of 40 CFR part

271, which contains the standards and procedures for EPA's

authorization of ``State'' hazardous waste programs. A new subsection

in (Sec. 271.1(k)) would be added to clarify that the substantive

standards and procedures that apply to States' programs and

authorization submissions apply to Tribal programs and submissions,

unless there is a specific provision that would address Tribal programs

differently.

The specific procedures which EPA believes are appropriate for

Tribal program authorizations and submissions would be set out in a new

Sec. 271.27. Proposed Sec. 271.27(a) identifies several minor changes

to the authorization application documents and agreements (i.e.,

Governor's letter, Program Description, Memorandum of Agreement, and

Attorney General's Statement) which EPA requires States to submit in

support of their applications

[[Page 30473]]

for program authorization. The proposed changes arise from a

recognition of tribal sovereignty and differences in the structure of

Tribal governments, and from circumstances unique to Indian Tribes.

Proposed Sec. 271.27(b) establishes criteria under which Indian

Tribes may be authorized to operate a partial RCRA hazardous waste

program. This authority enables a Tribe, for example, to obtain

authorization for a program that regulates only generators and

transporters of hazardous waste, with EPA retaining responsibility for

regulating and enforcing requirements for any hazardous waste

treatment, storage, and disposal facilities. Under this proposal, only

Indian Tribes would be eligible for partial program authorization.

States will continue to be precluded from seeking and obtaining partial

authorization. Other provisions in Sec. 271.27 address the core program

requirements of a partial program, the sharing of authority with EPA,

and other requirements that follow from the inclusion of partial

program authority in this proposed rule.

II. Authority

Today's rule is being proposed under the authority of sections

2002, 3006, and 3011 of the Resource Conservation and Recovery Act of

1976 (RCRA or the Act), as amended. Section 2002(a) authorizes the

Administrator to prescribe such regulations as are necessary to carry

out functions under Subtitle C of RCRA. Section 3006 of RCRA allows EPA

to authorize State hazardous waste programs to operate in the State in

lieu of the Federal hazardous waste program subject to the authority

retained by EPA in accordance with the Hazardous and Solid Waste

Amendments of 1984 (HSWA). Section 3011 of RCRA authorizes EPA to make

grants to the States for the purpose of assisting the States in the

development and implementation of authorized State hazardous waste

programs.

III. Background

A. Current Subtitle C Authorization Program

EPA has primary responsibility for implementing and enforcing the

RCRA Subtitle C hazardous waste program. Federal law, including the

issuance and enforcement of permits for hazardous waste facilities,

will be implemented by the Federal EPA until EPA authorizes a State for

a hazardous waste program, at which point primary authority rests with

the State.

The statute and regulations currently support two types of State

program authorization. The first type, ``interim authorization,'' is a

temporary authorization which is granted if EPA determines that the

State program is ``substantially equivalent'' to the Federal program

(section 3006(c), 42 U.S.C. 6926(c)). Interim authorization is

currently available only for requirements imposed pursuant to the

Hazardous and Solid Waste Amendments (HSWA) of 1984. HSWA Interim

Authorization will expire in January, 2003 unless extended by rule.

The second type of authorization is ``final'' (permanent)

authorization. Final authorization may be granted by EPA if the Agency

determines, among other things, that the State program: (1) Is

equivalent to the Federal program; (2) is consistent with the Federal

program and other authorized State programs; and (3) provides for

adequate enforcement (Section 3006(b), 42 U.S.C. 6926(b)) 7004,

3006(f). States, and now under this proposal, Tribes, need not have

obtained interim authorization in order to qualify for final

authorization.

To date, 46 States, Guam and the District of Columbia have been

authorized for the ``base'' RCRA Subtitle C program (i.e., the program

in place before the enactment of HSWA in 1984). In these States, the

authorized State programs operate in lieu of the corresponding Federal

program and, if Federal enforcement is necessary, EPA must enforce the

authorized State program requirements.

B. EPA's 1984 Indian Policy

Today, EPA is proposing to extend to Indian Tribes the opportunity

to apply for and receive hazardous waste program authorization similar

to that currently available to States. Providing Tribes with this

opportunity is consistent with the EPA's Indian Policy. This policy,

formally adopted in 1984, and reaffirmed on March 14, 1994 by EPA

Administrator Carol M. Browner, ``* * * views Tribal Governments as the

appropriate non-Federal parties for making decisions and carrying out

program responsibilities affecting Indian reservations, their

environments, and the health and welfare of the reservation populace.

Just as EPA's deliberations and activities have traditionally involved

the interests and/or participation of State governments, EPA will look

directly to Tribal Governments to play this lead role for matters

affecting reservation environments.''

A major goal of EPA's Indian Policy is to eliminate all statutory

and regulatory barriers to Tribal administration of Federal

environmental programs. Today's proposal represents another step in the

Agency's continuing commitment towards achieving this goal. However,

EPA recognizes, in the spirit of Indian self-determination and the

government-to-government relationship, that not all Tribes will choose

to apply for and receive hazardous waste program authorization at this

time. Regardless of the choice made, the Agency remains committed to

providing technical assistance and training when possible to Tribal

entities as they work to resolve their hazardous waste management

concerns.

C. Legal Basis for Subtitle C Authorization of Indian Tribes

EPA believes that adequate authority exists under the Act to allow

Tribes to seek hazardous waste program authorization. EPA's

interpretation of RCRA is governed by the principles of Chevron, USA v.

NRDC, 467 U.S. 837 (1984). Where Congress has not explicitly stated its

intent in adopting a statutory provision, the Agency charged with

implementing that statute may adopt any interpretation which, in the

Agency's expert judgment, is reasonable in light of the goals and

purposes of the statute as a whole. Id. at 844. Interpreting RCRA to

allow Tribes to apply for hazardous waste program authorization

satisfies the Chevron test.

RCRA does not explicitly define a role for Tribes under section

3006 and reflects an undeniable ambiguity in Congressional intent.

Indeed, the only mention of Indian Tribes anywhere in RCRA is in

section 1004(13), a part of the ``Definitions'' of key terms in RCRA.

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

A city, town, borough, county, parish, district or other public

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

the planning or administration of solid waste management, or any

Indian tribe or authorized tribal organization or Alaska Native

village or organization[.]

The term ``municipality'', in turn, is used in section 4008(a)(2)

of RCRA with specific reference to the availability of certain Federal

funds and technical assistance for hazardous and solid waste planning

and management activities by municipalities. Section 4008(a)(2)

authorizes EPA to provide financial and technical assistance to

municipalities on hazardous and solid waste management. Although

Congress apparently intended to make explicit that Indian Tribes could

receive funds and assistance when available in the same manner as

municipal governments (by the inclusion of Tribes in section 1004(13)),

Congress did not explicitly recognize any other role for Tribes under

other provisions. There is no accompanying legislative history which

explains why

[[Page 30474]]

Indian Tribes were included in section 1004(13) and nowhere else.

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

section 1004(13), intended to prohibit EPA from allowing Tribes to

apply for hazardous waste program authorization under Subtitle C. First

of all, it is clear that Indian Tribes are not ``municipalities'' in

the traditional sense. Indian Tribes are not ``public bodies created by

or pursuant to State law.'' Indeed, Indian Tribes are not subject to

State law except in very limited circumstances. See, California v.

Cabazon Band of Mission Indians, 480 U.S. 202 (1987). Indian Tribes are

sovereign governments. See Worcester v. Georgia, 31 U.S. (10 Pet.) 515

(1832); and United States v. Mazurie, 419 U.S. 544, 557-58 (1975).

There is no indication in the legislative history that Congress

intended to abrogate any sovereign Tribal authority by defining them as

``municipalities'' under RCRA; i.e., that Congress intended section

1004(13) to subject Indian Tribes to State law for RCRA purposes.

Moreover, it is a well-established principle of statutory construction

that Federal statutes which are ambiguous as to whether they abridge

Tribal powers of self-government must be construed narrowly in favor of

retaining Tribal rights. F. Cohen, Handbook of Federal Indian Law, 224

(1982); See, e.g., Ramah Navajo School Board v. Bureau of Revenue, 458

U.S. 832, 846 (1982).

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

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

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

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

change the sovereign status of Tribes for RCRA purposes. In particular,

the references in section 4008(a)(2) to state ``assistance'' to

municipalities does not suggest that Congress intended Indian Tribes to

be subject to State governmental control. Furthermore, given the

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

does not appear that Congress was attempting to define a role for

Tribes for all potential statutory purposes.

The ambiguity in RCRA regarding Indian Tribes also is evident in

the 1984 RCRA amendments. In these amendments, while silent on the role

for Tribes in implementing any RCRA programs, Congress expressed a

strong preference for a State lead for implementing and ensuring

compliance with the Federal Subtitle D revised criteria (as it had

earlier in providing for State authorization in RCRA Subtitle C).1

Yet, the legislative history of the 1984 amendments does not suggest

that Congress intended to approve States to implement such programs in

Indian country or that Congress considered the legal principle that

States generally are precluded from such implementation. Similarly,

RCRA Subtitle C does not contain an explicit delegation of authority to

States to implement hazardous waste programs in Indian country.

Washington Dept. of Ecology v. EPA, 752 F.2d 1465, 1469 (9th Cir. 1985)

(RCRA Subtitle C does not constitute an explicit delegation of

authority to States to implement hazardous waste programs on Indian

lands); accord, Nance v. EPA, 745 F.2d 701 (9th Cir. 1981). Thus, while

Congress has otherwise put States in a primary role for both Subtitle C

hazardous waste program implementation and Subtitle D permit programs,

on Indian lands, it failed to define how Tribes participate where

States lack authority. EPA believes it necessary to harmonize the

conflicts and resolve the ambiguities created by these provisions.

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\1\ See, e.g., Solid Waste Disposal Act Amendments of 1979, 125

Cong. Rec. 13,241, 13,252 (1979) (``one of the real advantages of

State assumption of these programs envisioned by Congress in the

Act, over a more uniform Federal program, is that States are better

able to tailor their programs to meet local circumstances * * *'').

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Failure to authorize Tribal hazardous waste programs would deny

Tribes the option currently available to States to administer their

programs ``in lieu of the Federal program.'' With this proposal,

however, Subtitle C regulated activities and facilities in Indian

country would be under the jurisdiction of the closest sovereign with

permitting and enforcement authority, the Tribe, rather than the

Federal government.2

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\2\ EPA has approved one tribal program under RCRA--the Campo

Band of Mission Indian's municipal solid waste landfill permit

program (60 FR 21191 (May 1, 1995)). This action has been challenged

in the United States Court of Appeals for the D.C. Circuit. See,

Backcountry Against Dumps v. E.P.A., No. 95-1343 (D.C. Cir. Filed

July 6, 1995).

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EPA has worked to revise other environmental statutes (e.g., the

Clean Water Act) to define explicitly the role for Tribes under these

programs. EPA also has stepped in on at least two occasions to allow

Tribes to seek program approval despite the lack of an explicit

Congressional mandate. Most recently, EPA recognized Indian Tribes as

the appropriate authority under the Emergency Planning and Community

Right-to-Know Act (EPCRA), despite silence on the Tribal role under

EPCRA. 55 FR 30632 (July 26, 1990). EPA reasoned that since EPCRA has

no federal role to backup State planning activities, failure to

recognize Tribes as the authority under EPCRA would leave gaps in

emergency planning in Indian country. 54 FR 13000-01 (March 29, 1989).

EPA filled a similar statutory gap much earlier as well, even

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

promulgated regulations which authorized Indian Tribes to redesignate

the level of air quality applicable to Indian reservations under the

Prevention of Significant Deterioration (PSD) program of the Clean Air

Act in the same manner that States could redesignate for other lands.

See Nance v. EPA (upholding regulations). EPA promulgated this

regulation despite the fact that the Clean Air Act at that time made no

reference whatsoever to Indian Tribes or their status under the

Act.3

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\3\ Congress ratified EPA's regulation in 1977 by explicitly

authorizing Tribes to make PSD redesignations; the 1990 Amendments

to the Act authorize EPA to allow Tribes to apply for approval to

implement any programs EPA deems appropriate.

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One Court already has recognized the reasonableness of EPA's

actions in filling such regulatory gaps in Indian reservations. In

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

PSD redesignation regulations described in the previous paragraph. The

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

allow for Tribal redesignation, rather than allowing the States to

exercise that authority or exempting Indian reservations from the

redesignation process. 745 F.2d 713. The Court noted that EPA's rule

was reasonable in light of the general existence of Tribal sovereignty

over activities in Indian reservations. Id. at 714.

Today's proposal is analogous to the rule upheld in Nance. EPA is

proposing to fill a statutory gap regarding the role of Tribes in the

implementation of Subtitle C in Indian country. As with the

redesignation program, authorizing Tribal hazardous waste programs

ensures that the Federal government is not the entity exercising

authority that Congress intended to be exercised at a local level.

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

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

Supreme Court reaffirmed EPA's authority to develop reasonable

controlling interpretations of environmental statutes. Chevron, supra.

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

regulate activities in Indian country, including those of non-Indians

on fee lands where the conduct directly threatens the health

[[Page 30475]]

and safety of the Tribe or its members. Montana v. United States, 450

U.S. 544, 565 (1981).

Extending the ability to receive program authorization to Tribes is

consistent with the general principles of Federal Indian law and the

Agency's Indian Policy which states that environmental programs (e.g.,

RCRA Subtitle C) in Indian country will be implemented to the maximum

extent by Tribal governments. Thus, as in Nance, EPA believes that

allowing Tribes to apply for hazardous waste authorization reflects the

sovereign authority of Tribes under Federal law.

A Tribe submitting an application to receive authorization for any

or all parts of the RCRA Subtitle C hazardous waste program will be

subject to the standards of this rule, when finalized. A Tribe which

has received authorization prior to promulgation of the final rule will

not lose its authorization status. However, if there are subsequent

changes in either the Federal or Tribal program (including, for

example, the acquisition of significant amounts of non-reservation land

by the Tribe), such a Tribe may be required to revise its authorized

program in accordance with the standards set forth in 40 CFR part 271.

IV. Detailed Discussion of the Proposed Rule

A. Overview

This proposed rule announces several changes to the regulatory

definitions (40 CFR 270.2) that define the scope of the Subtitle C

authorization program. Today's proposal also specifies the standards

and procedures that EPA would follow in approving, revising and

withdrawing authorization of Tribal hazardous waste programs, as well

as the requirements that tribal programs must meet to be authorized by

the Administrator under sections 3006(b) of RCRA.

Generally, Tribes would have to meet the same criteria as do the

States. Consequently, except where otherwise expressly indicated, the

REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE PROGRAMS (40

CFR part 271) are applicable to Tribes as well. However, today's

proposal recognizes the uniqueness of Tribes and Indian country and

revises several existing requirements, and adds appropriate

requirements to certain sections of the rule.

This part of the preamble discusses in detail changes in the

definitions which EPA believes are necessary to clarify the role of

Indian Tribes in Subtitle C authorization, and the other substantive

and procedural regulatory amendments which are needed to make the 40

CFR part 271 requirements more suited to the unique circumstances of

Tribes and Indian Country.

B. Tribal Regulatory Authority

To have its hazardous waste program authorized by EPA under today's

proposal, a Tribe would have to have adequate authority over the

regulated activities. The jurisdiction of Tribes clearly extends ``over

both their members and their territory.'' United States v. Mazurie, 419

U.S. 544, 557 (1975). However, Indian reservations may include lands

owned in fee by non-members. ``Fee lands'' are privately owned by non-

members and title to the lands can be transferred without restriction.

The extent of Tribal authority to regulate activities by non-tribal

members on fee lands has been the subject of considerable discussion.

The Supreme Court has said that there are two situations where a Tribe

is able to exercise civil jurisdiction over non-member owned fee lands

within Indian reservations. The Court stated, in Montana v. U.S., 450

U.S. 544, 566-67 (1981) (citations omitted):

To be sure, Indian tribes retain inherent sovereign power to

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

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

* the activities of non-members who enter consensual relationships

with the tribe or its members, through commercial dealing,

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

retain inherent power to exercise civil authority over the conduct

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

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

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

The Court applied the latter part of this test in Brendale v.

Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408

(1989). In that case, both the State of Washington and the Yakima

Nation asserted authority to zone non-Indian real estate developments

on two parcels within the Yakima reservation, one in an area that was

primarily Tribal, the other in an area where much of the land was owned

in fee by non-tribal members. Although the Court analyzed the issues

and the appropriate interpretation of Montana at considerable length,

the nine members split 4:2:3 in reaching the decision that the Tribe

should have exclusive zoning authority over property in the Tribal area

and the State should have exclusive zoning authority over non-Indian

owned property in the fee area.

Specifically, the Court did recognize Tribal authority over

activities that would threaten the health and welfare of the Tribe, 492

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

(Blackmun, J. concurring). Conversely, the Court found no Tribal

jurisdiction where the proposed activities ``would not threaten the

Tribe's * * * health and welfare.'' Id. at 432 (White, J., writing for

the Court). Given the lack of a majority rationale, the primary

significance of Brendale is in its result, which was fully consistent

with Montana v. United States.

In evaluating whether a Tribe has authority to regulate a

particular activity on land owned in fee by non-members but located

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

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

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

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

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

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

those activities threaten or have a direct effect on the political

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

Tribe. Montana, 450 U.S. at 565-66.

However, as discussed by EPA in the context of the Clean Water Act,

the Supreme Court, in a number of post-Montana cases, has explored

several criteria to assure that the impacts upon Tribes of the

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

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

on point, on any one reformulation of the test. See 56 FR 64876, 64878

(December 12, 1991). In response to this uncertainty, the Agency will

apply, as an interim operating rule, a formulation of the Montana

standard that will require a showing that the potential impacts of

regulated activities of non-members on the Tribe are serious and

substantial. See 56 FR at 64878. EPA will thus require that a Tribe

seeking RCRA Subtitle C authorization demonstrate jurisdiction, i.e.,

make a showing that the potential impacts on the Tribe from hazardous

waste management activities of non-members on fee lands are serious and

substantial.

The choice of an Agency operating rule containing this standard is

taken solely as a matter of prudence in light of judicial uncertainty

and does not reflect an Agency endorsement of this standard per se. See

56 FR at 64878. Moreover, as discussed below, the Agency believes that

the activities regulated under the various

[[Page 30476]]

environmental statutes, including RCRA, generally have potential direct

impacts on human health and welfare that are serious and substantial.

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

meet the Agency's operating rule, and that use of such a rule by the

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

Whether a Tribe has jurisdiction over activities by non-members on

fee lands will be determined case-by-case, based on factual findings.

The determination as to whether the required effect is present in a

particular case depends on the circumstances and will likely vary from

Tribe to Tribe.

Nonetheless, the Agency also may take into account the provisions

of environmental statutes and any legislative findings that the effects

of the activity are serious and substantial in making a generalized

finding that Tribes are likely to possess sufficient inherent authority

to control environmental quality in Indian Country. See, e.g., Keystone

Bituminous Coal Association v. DeBenedictis, 480 U.S. 470, 476-77 and

nn.6, 7 (1987). The Agency may also rely on its special expertise and

practical experience regarding the importance of hazardous waste to the

protection of Tribal environments and the health and welfare of Tribal

members. As a result, the reservation-specific demonstration required

of a Tribe may, in many cases, be relatively simple. EPA's approach to

determining Tribal jurisdiction over the activities of nonmembers on

fee lands within reservation boundaries was recently upheld in Montana

v. EPA, No. CV 95-56-M-CCL, 1996 U.S. Dist. LEXIS 4753 (D. Mont. March

27, 1996), which involved an EPA decision to approve a Tribal

application to administer the water quality standards program under

section 303 of the Clean Water Act.

EPA believes that Congress established a strong Federal interest in

effective management of hazardous waste throughout the country by

enacting RCRA. For example, one of the primary objectives of the

statute is ``to promote the protection of health and the environment

and to conserve valuable material and energy resources by * * *

assuring that hazardous waste management practices are conducted in a

manner which protects human health and the environment.'' RCRA section

1003(a), 42 U.S.C. 6902(a). EPA also notes that many of the

environmental problems caused by mismanagement of hazardous waste

(e.g., groundwater contamination or the release of hazardous

constituents into the air) by their nature present potential direct

impacts that are serious and substantial in areas that are outside the

place where the hazardous waste management originally occurred. In

other words, any environmental hazards that result from hazardous waste

management by non-members on fee lands within a reservation are very

likely to present direct impacts to Tribal environments, health and

welfare that are serious and substantial. EPA also believes that a

``checkerboard'' system of regulation, whereby the Tribe and State

split up regulation of hazardous waste on Indian lands, would

exacerbate the difficulties of assuring compliance with RCRA

requirements.

In light of the Agency's statutory responsibility for implementing

the environmental statutes, its interpretations of the intent of

Congress regarding Tribal management of solid waste within the

reservation are entitled to substantial deference. Washington Dep't of

Ecology v. EPA, 752 F.2d 1465, 1469 (9th Cir. 1985); see generally

Chevron, USA, Inc. v. NRDC, 467 U.S. 837, 843-45 (1984).

The Agency also believes that the effects on Tribal health and

welfare necessary to support Tribal regulation of non-Indian activities

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

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

in Brendale. There is a significant distinction between land use

planning and environmental regulation of hazardous waste under RCRA.

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

use planning in essence chooses particular uses for the land;

environmental regulation * * * does not mandate particular uses of the

land but requires only that, however the land is used, damage to the

environment is kept within prescribed limits.'' California Coastal

Comm'n v. Granite Rock Co., 480 U.S. 572, 587 (1987). The Court has

relied on this distinction to support a finding that States retain

authority to carry out environmental regulation even in cases where

their ability to carry out general land use regulation is preempted by

federal law. Id. at 587-89.

Further, management of hazardous waste serves the purpose of

protecting public health and safety, which is a core governmental

function, whose exercise is critical to self-government. The special

status of governmental actions to protect public health and safety is

well established.4 By contrast, the power to zone can be exercised

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

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

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

Moreover, hazardous waste may affect ground water, which is mobile,

freely migrating from one local jurisdiction to another, sometimes over

large distances. By contrast, zoning regulates the uses of particular

properties with impacts that are much more likely to be contained

within a given local jurisdiction.

---------------------------------------------------------------------------

\4\ This special status has been reaffirmed by all nine justices

in the context of Fifth Amendment takings law. See Keystone

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

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

---------------------------------------------------------------------------

The process that the Agency will use for Tribes to demonstrate

their authority over non-members on fee lands includes a submission of

a statement in the Tribal Legal Certification (Sec. 271.27(a))

explaining the legal basis for the Tribe's regulatory authority.

However, EPA will also rely on its generalized findings regarding the

relationship of hazardous waste management to Tribal health and

welfare. Thus, the Tribal submission will need to make a showing of

facts that there are or may be activities regulated under RCRA Subtitle

C engaged in by non-members on fee lands within the territory for which

the Tribe is seeking authorization, and that the Tribe or Tribal

members could be subject to exposure to hazardous waste from such

activities through, e.g., groundwater, soil, air, and/or direct

contact. The Tribe must explicitly assert and demonstrate jurisdiction,

i.e., make a showing, that improper management of hazardous waste by

non-members on fee lands could have direct impacts on the health and

welfare of the Tribe and its members that are serious and substantial.

Once a Tribe meets this initial burden, EPA will, in light of the facts

presented by the Tribe and the generalized statutory and factual

findings regarding the importance of proper hazardous waste management

in Indian country, presume that the Tribe has made an adequate showing

of jurisdiction over non-member activities on fee lands, unless an

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

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

The Agency recognizes that jurisdictional disputes between Tribes

and States can be complex and difficult and that it will, in some

circumstances, be forced to address such disputes by attempting to work

with the parties in a mediative fashion. However, EPA's ultimate

responsibility is protection of human health and the environment. In

view of the mobility of environmental problems, and the interdependence

of

[[Page 30477]]

various jurisdictions, it is imperative that all affected sovereigns

work cooperatively for environmental protection.

C. Implementing the Government-to-Government Relationship With EPA

Under the Clean Water Act (CWA), the Safe Drinking Water Act

(SDWA), the Comprehensive Environmental Response, Compensation and

Liability Act (CERCLA) and the Clean Air Act (CAA), Congress has

specified certain criteria by which EPA is to determine whether a Tribe

may be treated in the same manner as a State. These criteria generally

require that the Tribe (1) be recognized by the Secretary of the

Interior; (2) have an existing government exercising substantial

governmental duties and powers; (3) have adequate civil regulatory

jurisdiction over the subject matter and entities to be regulated; and

(4) be reasonably expected to be capable of administering the federal

environmental program for which it is seeking approval.

As discussed below, EPA is requiring Tribes seeking grant funds

under RCRA 3011 or program authorization under RCRA 3006 to demonstrate

in the Program Description that they meet the four criteria listed

above. The process EPA is proposing for Tribes to make this showing,

however, generally is not an onerous one.

The Agency has simplified its process for determining Tribal

eligibility to administer environmental programs under several other

environmental statutes. See 59 FR 64339 (December 14, 1994)

(``Treatment as a State (TAS) Simplification Rule''). The proposed

process for determining eligibility for RCRA Subtitle C programs

parallels the simplification rule. Generally, the fact that a Tribe has

met the recognition or governmental function requirement under another

environmental statute allowing for Tribal assumption of environmental

programs or grants (e.g., the Clean Water Act, Safe Drinking Water Act,

Clean Air Act) will establish that it meets those requirements for

purposes of RCRA Subtitle C authorization. To facilitate review of

tribal applications, EPA therefore requests that the Tribe demonstrate,

in proposed 40 CFR 271.27(a)(3)(ii), that it has been approved for

``TAS'' (under the old ``TAS'' process) or been deemed eligible to

receive authorization (under the simplified process) for any other

program.

If a Tribe has not received ``TAS'' approval or been deemed

eligible to receive authorization, the Tribe must demonstrate, pursuant

to proposed Sec. 271.27(a)(3)(ii), that it meets the recognition and

governmental function criteria described above. A discussion on how to

make these showings can be found at 59 FR 64339 (December 14, 1994).

EPA believes, on the other hand, that the Agency must make a

separate determination that a Tribe has adequate jurisdictional

authority and administrative and programmatic capability before it

approves each Tribal program.

In particular, if the Tribe is asserting jurisdiction over

hazardous waste activities conducted by non-members on fee lands within

Reservation boundaries, it must explicitly show, in its submission,

that the activities of non-members on fee lands regarding hazardous

waste could have direct effects on the health and welfare of the Tribe

that are serious and substantial. Copies of all documents, such as

treaties, constitutions, by-laws, charters, executive orders, codes,

ordinances, and/or resolutions which support the Tribe's assertions of

jurisdiction must also be included. EPA will review this documentation

and any comments given during the public comment period, and then will

make a determination whether there has been an adequate demonstration

of Tribal jurisdiction over Tribal, and if asserted, non-member

hazardous waste activities on fee lands within the boundaries of the

reservations.

Finally, capability is a determination that will be made on a case-

by-case basis. Ordinarily, the information provided in the application

for RCRA Subtitle C permit program approval submitted by any applicant,

Tribal or State, will be sufficient (see the program description

requirements under Sec. 271.6 and the discussion on pages 51-55 for the

elements of programmatic capability in the context of RCRA Subtitle C

authorization). Nevertheless, EPA may request, in individual cases,

that the Tribe provide a narrative statement or other documents showing

that the Tribe is capable of administering the program for which it is

seeking approval. See 59 FR 44339 (December 14, 1994).

D. Definitions

The key purpose of this proposed rulemaking is to clarify the

ability of Indian Tribes to obtain authorization from EPA of their

hazardous waste management programs under RCRA section 3006. The

proposal would further clarify that Indian Tribes may obtain Federal

grants under RCRA section 3011 to assist Tribes in developing and

implementing their authorized programs.

The proposal would provide this clarification through changes to

the governing definitions in 40 CFR 270.2 and 40 CFR 35.105. The most

significant of the changes is the proposed inclusion of ``Indian

Tribes'' within the list of governmental entities defined as ``States''

in 40 CFR 270.2. Under the Statute, both program authorization under

section 3006 and financial assistance under section 3011 are available

to States. Therefore, the proposed change to the regulatory definition

of ``States'' would make it clear that EPA interprets the Act as

providing EPA with sufficient authority to authorize and to issue

grants to qualified Indian Tribes.

EPA is also proposing to add to Sec. 270.2 new definitions for

``Indian Tribes'' and ``Indian Country.'' The proposed definition of

``Indian Tribe'' or ``Tribe'' would include any Indian Tribe, band,

group or community recognized by the Secretary of the Interior and

having a governmental body carrying out substantial governmental duties

and powers.

Second, ``Indian country'' would be defined as in 18 U.S.C. 1151,

to mean (A) all land within the limits of any Indian reservation under

the jurisdiction of the United States Government, notwithstanding the

issuance of any patent, and including rights-of-way running throughout

the reservation, (B) all dependent Indian communities within the

borders of the United States whether within the original or

subsequently acquired territory thereof, and whether within or without

the limits of a state, and (C) all Indian allotments, the Indian titles

to which have not been extinguished, including rights-of-way running

through the same. EPA notes that the meaning of the term

``reservation'' must be determined in light of relevant case law. EPA

considers trust lands formally set apart for the use of Indian Tribes

to be ``Indian country'' even if the trust land has not been formally

designated as a ``reservation.'' See Oklahoma Tax Comm'n v. Citizen

Band of Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505 (1991).

These definitions are important not only for determining what

entities may apply for Subtitle C authorization, but also for

determining the territorial and legal reach of a Tribe's authorized

program. They are also important in establishing the necessary

government-to-government relationship with Tribes, and in addressing

the issue of tribal regulatory authority. EPA requests comment on these

proposed definitions, and the appropriateness of extending to Tribes

the availability of Subtitle C

[[Page 30478]]

authorization and RCRA section 3011 grants.

Available Alternatives to Authorization

EPA recognizes that most Tribes will choose not to pursue Subtitle

C authorization at this time. Several mechanisms already exist whereby

Tribes may engage in a partnership with the Agency in implementing

hazardous waste management activities. These mechanisms include

cooperative agreements, Memoranda of Understanding and Memoranda of

Agreement. Under all these mechanisms, Indian Tribes can develop and

implement their hazardous waste regulatory authorities and exercise

their sovereign authority with respect to their environments. These

mechanisms may also provide Tribes opportunities to increase their

capacity to manage environmental programs by participating with EPA in

hazardous waste activities, while maintaining the government-to-

government relationship described in EPA's Indian Policy. Authorization

is distinguished from the other types of relationships, because it

would confer on the Tribal government the authority to operate its

program in lieu of EPA operating all or part of the Federal hazardous

waste program.

E. Funding

EPA recognizes that, assuming current funding levels remain the

same, the effect of this proposal could be to make available to Tribes

Federal funds that otherwise would be allocated only to State hazardous

waste programs. Tribes that assume the burdens of a RCRA hazardous

waste program assume these burdens in lieu of EPA acting directly, so

the Agency believes it is appropriate for Indian Tribes to obtain RCRA

section 3011 funds that are commensurate with these burdens.

While Congress explicitly authorized grants to municipalities

(including Tribes) under RCRA subtitle D, EPA does not believe it is

precluded from interpreting RCRA to authorize grants to authorized

Tribes under RCRA subtitle C section 3011. Section 3011 does not

provide for grants to municipalities because of the nature of these

grants, which are for the development of broad hazardous waste

programs. There is nothing in RCRA or the legislative history to

indicate that Congress intended to limit Tribal grants to only those

provisions for which municipalities may receive grants. Under the

statutory scheme, section 3011 grants are specifically designed to aid

in developing and implementing authorized hazardous waste programs.

Given the Agency's interpretation that RCRA section 3006 is properly

read to allow EPA to authorize qualifying Tribes to administer RCRA

programs in lieu of EPA, it follows that these Tribes should also be

eligible to receive grant funding under RCRA section 3011 to assist

``in the development and implementation of authorized * * * hazardous

waste programs.'' The Agency's interpretation is consistent with the

well established general principle of statutory construction that

ambiguous statutes should be construed in favor of Tribes. See, e.g.,

Ramah Navajo School Board v. Bureau of Revenue, 458 U.S. 832, 846

(1982); see also, F. Cohen, Handbook of Federal Indian Law, 224-25

(1982).

EPA requests comments that would assist it in allocating RCRA

section 3011 funds equitably to authorized States and Tribes. The

Agency is especially interested in suggestions that would mitigate any

potential negative effects on funding of authorized State programs.

F. Program Application Elements

Because of the uniqueness of Tribal governments, EPA is proposing

in this rule to modify some of the program application elements

required under Sec. 271.5 for Tribal applications. These modifications

are explained in detail below.

1. Program Description

The proposed rule adds a new subsection to Sec. 271.6 which

requires a Tribe to include a map, legal description, or other

information sufficient to identify the full extent of the lands over

which the Tribe is asserting jurisdiction. In addition, the Tribe would

identify in the Program Description the location of any generator,

storage, treatment or disposal facilities subject to RCRA Subtitle C,

including any facilities on fee lands owned by non-members. Finally, in

those instances where a Tribe asserts jurisdiction over hazardous waste

activities conducted by non-members on fee lands within reservation

boundaries, the proposal would require the Program Description to

identify clearly the activities and areas affected by such a claim of

jurisdiction, and to assert and explain how the activities of non-

members will have a serious and substantial effect on the health and

welfare of the Tribe.

2. Attorney General's Statement

EPA recognizes that the ``Attorney General'' designation in 40 CFR

271.7 may not be appropriate for all Tribes, since some Tribal

governments may not have an Attorney General. Therefore, the proposal

would add Sec. 271.27(a)(4), which clarifies that the requirement of an

Attorney General's Statement is satisfied for Indian Tribes when the

Statement is signed by the Tribal attorney or by an equivalent legal

counsel retained by the Indian Tribe for representation in matters

before EPA or the courts pertaining to the Indian Tribe's program. This

amendment adds sufficient flexibility to the existing procedures to

enable the necessary legal certifications to be prepared and reviewed,

without imposing the undue rigor of requiring a submission by an

attorney with a particular title, office, or position. The essential

consideration is that the Statement be signed by an attorney who has

been retained to represent the Tribe on matters pertaining to the

Tribe's program authorization. The Tribe's attorney should include in

the Statement an assertion that he/she has the necessary authority to

represent the Tribe with respect to the application, and to certify

that the laws of the Tribe provide adequate authority to carry out the

program.

3. Memorandum of Agreement

This proposal includes several modifications to the Sec. 271.8

provisions that describe the content of the Memorandum of Agreement

that is entered into by EPA and authorized States. This Memorandum

generally addresses such matters as the transfer of program documents

to the State upon authorization, as well as the type and frequency of

coordination and oversight that will occur after authorization of a

State.

40 CFR 271.16 requires that, in order to obtain authorization for

its hazardous waste program, States must have criminal enforcement

authority over ``any person'' committing certain enumerated acts and

have the authority to impose a fine of $10,000 per violation. Federal

law bars Indian Tribes from trying criminally or punishing non-Indians

in the absence of express authority in a treaty or statute to the

contrary. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). In

addition, the Indian Civil Rights Act prohibits any Indian court or

Tribunal from imposing for any one offense a criminal penalty greater

than $5,000 on Indians within its jurisdiction (25 USC 1302(7)).

The Agency realizes that requiring Tribes to demonstrate the same

criminal authority as States would affectively prohibit any Tribe from

obtaining program authorization. The Agency therefore proposes to add

provision 271.27(a)(5) so that Tribes are not required to exercise

comprehensive

[[Page 30479]]

criminal enforcement jurisdiction as a condition for hazardous waste

program authorization. Under this rule, Tribes are required to provide

for the timely and appropriate referral of criminal enforcement matters

to the Regional Administrator when Tribal enforcement authority does

not exist or is not sufficient (e.g., those concerning non-Indians or

violation meriting penalties over $5,000) This section also requires

that such procedures be established in the formal Memorandum of

Agreement with the Regional Administrator required by 40 CFR 271.8.

This approach is the same that the Agency has taken in the context of

Tribal programs under the SDWA and CWA.

It should be noted that, as in authorized States, EPA retains the

authority to take necessary enforcement action if an authorized Tribe

did not (or could not) take such action or did not enforce adequately

(e.g., did not or could not impose a sufficient penalty). EPA

emphasizes that this referral mechanism is available only in those

cases where the limitation on Tribal enforcement arises under Federal

law. A Tribe that encumbers its own enforcement authority with

limitations based on laws adopted by the Tribe would be subject to the

same ``adequacy of enforcement'' review standard that applies to States

under RCRA section 3006 and the part 271 regulations.

EPA seeks comment on whether the authorization requirements set out

for States in 40 CFR part 271 are appropriate for Tribes and whether

any of these requirements will inappropriately restrict Tribes from

seeking authorization. EPA also requests comment on proposed

Sec. 271.27(a), and particularly, the modifications proposed for an

Indian Tribe's Program Description, Attorney General Statement, and

Memorandum of Agreement submissions.

G. Partial Authorization Authority

1. Background

Under this proposal, Indian Tribes would be eligible to obtain

authorization from EPA to operate partial RCRA hazardous waste

programs. This aspect of the proposal introduces authority for Tribes

that is not now available to the States and Territories of the United

States which currently have or are eligible for RCRA Subtitle C

authorization. The proposal would amend 40 CFR Sec. 271.1(h), which

currently prohibits partial State hazardous waste programs from

operating under RCRA Subtitle C final authorization. The proposed rule

would exempt only Tribal hazardous waste programs which meet the

proposal's criteria from the effects of the current prohibition. Other

``States'' (i.e., States and Territories) would remain subject to the

partial program prohibition.

EPA does not interpret RCRA section 3006 to preclude the operation

of partial RCRA programs. The current regulatory prohibition in 40 CFR

271.1(h) was adopted as a policy matter within EPA's discretion in

1979, in the face of the Act's silence on the precise issue.

Indeed, when EPA developed its RCRA authorization regulations, the

Agency initially proposed that States could obtain partial

authorization. See 43 FR 4366 (February 1, 1978). The 1978 proposal

would have allowed States ``to receive partial authorization for

selected major components of the full hazardous waste program, but only

if the State meets the requirements of equivalency, consistency, and

enforceability for each such major component.'' Id. at 4368. Commentors

on the 1978 proposed rule voiced strong opposition to this proposal,

based primarily on the burden and confusion that would result to the

regulated community due to shared EPA/State implementation

responsibilities over partial programs. In the face of these comments,

EPA announced in the 1979 final rule the current partial program

prohibition. See 44 FR 34259, (June 14, 1979).

In enacting the Hazardous and Solid Waste Amendments (HSWA) of

1984, Congress added revisions to the section 3006 authority for State

program authorization. HSWA added language to section 3006(b) of the

Act that allows the Administrator to base his or her findings of a

state program's equivalency with the Federal program on the Federal

program in effect one year prior to the submission of the state's

application. While this language could be construed as a mandate that

States eventually adopt the entire Federal program, EPA believes that

the better view of the 1984 amendment's purpose was to afford States

some relief from the need to continually update their applications to

reflect recent changes in the Federal program. In effect, this

amendment provided states with a grace period, allowing states to defer

including Federal changes that occurred within one year of the

submission of their applications. Understood in this context, EPA does

not believe that the section 3006(b) revision was intended to address

the partial program issue. Therefore, EPA believes that it retains the

discretion to allow Indian Tribes to obtain partial program

authorization.

2. Rationale for Partial Tribal Programs

The Agency believes that there are compelling reasons for allowing

Indian Tribes to operate partial RCRA programs. Fundamentally, as set

out in the EPA Indian Policy, the Agency is committed to make every

reasonable effort to recognize the sovereignty of Indian Tribes and to

eliminate any administrative barriers to the Tribes' primary

administration of programs such as RCRA Subtitle C. EPA believes that

it is a reasonable step in implementing this important policy to remove

the barrier imposed by the current regulatory prohibition of partial

RCRA programs as it affects authorization of Indian Tribes. Otherwise,

EPA believes that few, if any Tribes would participate in RCRA Subtitle

C authorization.

Indian Tribes typically have much smaller populations than States,

and there are generally limited industrial and commercial operations

conducted within the Tribe's jurisdiction. This tends to limit not only

the likelihood of substantial hazardous waste generation activities

within Indian country, but it also limits the sources of revenues to

support the activities of Tribal governments. Therefore, Indian Tribes

would not typically possess the resources to develop and carry out a

full RCRA Subtitle C program. Particularly in those areas where the

full RCRA program requires special expertise (e.g., experts in

hydrogeology to oversee RCRA corrective actions), skills and resource

shortages common among Indian Tribes would preclude most Tribes from

participating in RCRA authorization, if partial authorization were not

an option. EPA believes that it would make little sense to require

Tribal governments to develop authorities and capabilities to regulate

facilities that are not now and are unlikely ever to be present on

Tribal lands.

EPA solicits comment on the removal of the Sec. 271.1(h) partial

program prohibition only for Indian Tribes. EPA recognizes that some

States and the Insular territories may believe that they also should be

allowed to obtain partial authorizations, because of their size,

limited involvement with hazardous waste operations, or limited need

and capability to operate a full RCRA hazardous waste program. While

EPA understands these interests, the Agency believes that these factors

are present to a greater degree with Indian Tribes than with the States

and Territories. In addition, the EPA Indian Policy is a distinguishing

factor which supports this limited proposal, since it represents EPA's

commitment to eliminate

[[Page 30480]]

administrative impediments to authorizing Tribal programs. Finally, EPA

is concerned that a more general relaxation of the partial program

prohibition would result in many States either electing not to assume

new RCRA program requirements which they view as burdensome (thereby

leaving EPA with the most significant implementation burdens), or

transferring previously authorized program components back to EPA.

3. Criteria for Partial Program Authorization

Today's proposed rule includes criteria that would govern the

evaluation of Tribes' requests for partial program authorization. This

section explains these criteria.

a. Composition and size of the regulated community. EPA believes

that the most critical consideration in evaluating the appropriateness

of a partial program authorization is the composition and size of the

regulated community. The components of a Tribal hazardous waste

management program should reflect the types of facilities and the

magnitude of hazardous waste operations that are actually present, or

likely to establish operations, within the Tribal jurisdiction. This

criterion should be considered both in the context of the authorities

and capabilities which the Tribe should demonstrate in its application,

and in evaluating the allocation of regulatory oversight burdens

between a Tribe and EPA.

For example, if a Tribe's regulatory universe consists solely of

hazardous waste generators and transporters, this proposal would permit

the Tribe to demonstrate in its application the authorities and

capability to regulate these types of facilities. Such a Tribe would

need to develop regulatory counterparts to EPA's generator standards in

40 CFR parts 262 and 268, as well as transporter standards

corresponding to EPA's part 263 requirements. However, the application

would not need to include regulatory authorities for hazardous waste

landfills, incinerators, or other types of hazardous waste management

facilities which do not currently exist, and which are not likely to

ever operate within a Tribe's territorial jurisdiction.

EPA believes that partial authorization is warranted only in

instances where the Tribe has responsibility for regulating all the

facilities within a particular program. For example, Tribes which are

authorized solely for generators and transporters would be responsible

for all persons or entities that fall into those programs. Although it

would be appropriate for EPA to provide limited technical expertise and

to implement its statutory responsibilities under HSWA at facilities

regulated by the Tribal program, it would not be appropriate for EPA to

assume nearly all the regulatory burdens at such sites.

The omission from a Tribe's application of an entire class of

existing facilities may raise questions about the appropriateness of a

partial program authorization. In such cases, EPA would assess the

regulatory burden associated with the Tribe's proposed program, and the

burdens which EPA would retain as a result of regulating the class of

facilities omitted from the Tribal program. On a case-by-case basis,

EPA would determine whether the significant sovereignty interests

reflected in authorization and the regulatory burdens being assumed by

the Tribe outweigh the circumstances of EPA retaining direct

implementation responsibilities for a class of facilities. However,

where the omission of such a class of facilities would result in EPA

bearing a disproportionate regulatory burden, this proposal would view

this as grounds for a negative determination on that Tribe's request

for partial authorization. EPA solicits comments on how it should

strike the appropriate balance between Tribal and EPA interests when

evaluating partial program applications that involve some, but not all,

of a Tribe's regulated community.

b. Extent to which program components are severable. EPA's 1979

decision to prohibit partial RCRA programs was based primarily on

concerns which the regulated community identified about the confusion

which would result under a system of joint State and EPA

implementation. This concern remains today, and is perhaps even more

prominent than in 1979, given the increased growth and complexity of

the RCRA Subtitle C management program since that date. On the other

hand, the interest of avoiding dual RCRA programs should not become an

insurmountable obstacle to EPA's implementation of its Indian Policy,

particularly since dual State/EPA implementation of Subtitle C has

become fairly commonplace under the mandate of the 1984 HSWA

amendments.

EPA believes that the severability of the program elements applied

for by a Tribe is an important criterion in evaluating the merits of a

Tribe's request for a partial program authorization. In this context,

``severability'' means that there is a distinct set of requirements for

which the Tribe is exclusively responsible for program implementation.

Severability is important in avoiding or minimizing the confusion and

burdens arising from joint Tribal/EPA implementation of RCRA.

Therefore, a Tribal application will be evaluated to determine that, as

far as possible, the Tribe's application includes the authorities that

are needed to fully regulate the class or classes of facilities for

which the Tribe is seeking authorization. When this occurs, there

should be minimal confusion insofar as the particular roles and

responsibilities of the Tribe and EPA.

EPA recognizes that total severability of roles and

responsibilities may not be fully achievable. Nevertheless, an

acceptable partial program application is one that tends to clarify,

not confuse, regulatory responsibilities for hazardous waste management

activities that the Tribal program would regulate.

To meet this criterion, a Tribe seeking authorization, for example,

to regulate hazardous waste generators would need to include

authorities in its program corresponding to regulations found in

several distinct parts of Volume 40 of the Code of Federal Regulations

(CFR). While management standards specific to generators are set forth

in 40 CFR part 262, generators also become subject to RCRA permit

requirements when they store or treat hazardous wastes in tanks or

containers for a period exceeding 90 days (or 180 days for certain

small quantity generators). In these cases, counterparts to part 264

general facility, tank, and container permitting standards might also

be appropriate. Likewise, generators are subject to certain waste

analysis, certification, and other requirements included in EPA's Part

268 Land Disposal Restrictions (LDRs), and these additional generator

requirements should also be reflected in the Tribe's legal authorities.

EPA requests comment on the proposed criterion under which maximum

severability of Tribal and EPA regulatory responsibility for hazardous

waste management activities would be a persuasive factor in evaluating

Tribes' requests for partial program authorization. Under this

proposal, EPA could recognize exceptions for particular facility

requirements (e.g., HSWA corrective action) where direct EPA oversight

is needed to ensure the availability of a special technical expertise

or resources which a Tribe could not reasonably be expected to develop

and retain. This criterion is discussed in the section which follows.

c. Extent to which EPA-retained elements require special expertise.

As discussed in the preceding section, the

[[Page 30481]]

requirement of special implementation expertise may be a circumstance

warranting EPA's retention of direct oversight responsibilities for a

particular facility, of for a class of facilities. Thus, under this

proposal, EPA could approve a Tribal program that lacked regulatory

authorities to oversee existing landfills, land treatment units,

surface impoundments, or waste piles, where the Tribe's application

demonstrates that the regulation of these facilities would require the

substantial involvement of hydrogeologists or other specialists that

are not reasonably available to the Tribe. These areas of expertise

could come into play, for example, in the oversight of Subtitle C

facilities' groundwater monitoring and protection requirements, and in

overseeing the HSWA corrective action mandates to address releases of

hazardous constituents from the solid waste management units of

facilities seeking RCRA permits (40 CFR part 264, subpart F). In

addition, the need for special EPA expertise could also be present in

instances where a treatment facility is seeking authorization to

operate treatment processes that require a significant chemical or

mechanical engineering expertise to evaluate and permit.

EPA believes that it should scrutinize closely those requests for

partial program authorization that propose to exclude authority to

regulate an entire class of existing facilities because of a need for

special expertise. In many such instances, the special expertise might

only be needed occasionally, and could be provided by EPA or by

contractor as technical support to the Tribe.

More typically, special EPA expertise may be asserted as a basis

for EPA's retention of its HSWA authority for facilities otherwise

subject to a Tribe's authorized RCRA Subtitle C program. The special

technical expertise associated with the HSWA corrective action and LDR

programs may justify joint EPA/Tribal administration of RCRA at

facilities with corrective action needs or with significant involvement

in highly technical treatment processes. Under this proposal, EPA could

authorize partial Tribal programs that excluded HSWA corrective action

and LDR treatment standards, and the Tribe could be authorized to

regulate the non-HSWA aspects of the facilities' operations.

EPA requests comments on the proposal to include special EPA

expertise as a criterion for authorizing a partial Tribal program. The

Agency also solicits specific comments that would aid EPA in

identifying those elements of the RCRA Subtitle C or HSWA regulatory

programs that are suitable candidates for EPA retention, and those that

should be included within a Tribe's authorized program.

d. Extent to which there is a bona-fide waste management program

for which the Tribe possesses the necessary capability.

The final criterion proposed in this notice requires the Tribe to

demonstrate to EPA's satisfaction that there is a real and significant

presence of regulated hazardous waste management activities within the

Tribe's jurisdiction, so that the Tribe's hazardous waste management

program will constitute a bona-fide regulatory program. This criterion

also requires the Tribe to demonstrate that it has the necessary

capability to administer the partial program for which it is seeking

authorization.

The requirement of a real and significant involvement with

hazardous waste operations is not intended to suggest a quantity

threshold on the amount of waste generated or the numbers of facilities

that must be present. Rather, this requirement is intended to connote

that there must be a real or imminent universe of hazardous waste

management activities subject to regulation. As such, a speculative

possibility or interest does not meet this criterion.

Further, to be authorized, a program must also be able to

demonstrate the necessary capability to oversee the universe of

regulated hazardous waste activities, and administer the program's

legal authorities and guidance. Capability is a concept that addresses,

among other factors, the mix of resources and skills which a Tribe will

need to implement successfully its hazardous waste program. EPA

currently applies capability criteria to States that seek RCRA Subtitle

C authorization. The capability implications of this proposal are

discussed below in section IV.H.6 of this preamble.

4. Minimal Program Considerations

EPA believes that there are certain RCRA hazardous waste program

elements which, at a minimum, must be present in every application for

a partial RCRA program authorization. In other words, there is a

``floor set'' of program elements, which if not included in an

application, could constitute grounds for rejection of a Tribal program

application.

EPA proposes that Tribal counterparts to the following Federal

program elements would constitute the minimal program for which a Tribe

could seek partial program authorization:

The appropriate subset of definitions in 40 CFR part 260

corresponding to the hazardous waste program within the Tribe's

application;

Waste identification requirements in 40 CFR part 261;

Generator requirements in 40 CFR parts 262 and 268; and

Transporter requirements in 40 CFR part 263.

Additionally, Interim Status Standards, 40 CFR part 265, cover two

types of units, newly regulated units (recently included as a RCRA

Subtitle C facility due to new regulations) and non-notifiers (such as

those operating as illegal Subtitle C units which become identified

through inspections or other means). Units identified as subject to

RCRA Subtitle C which were not previously regulated will be subject to

parts 264 and 265 closure requirements. U.S. EPA will be responsible

for permitting and/or closure of those units subject to part 265 for

Tribes that choose not to adopt these regulations as part of their

authorized program. Tribes that become authorized for part 265 will be

responsible for permitting and/or closure (whichever is appropriate) of

these units.

EPA requests comments on the appropriateness of these minimum

program elements for defining an acceptable partial RCRA Subtitle C

program for Tribes.

5. Financial Assurance Requirements for Tribally Owned and Operated

Facilities

RCRA Subtitle C requires owners and operators of hazardous waste

treatment, storage, and disposal facilities to provide financial

assurance for closure, post-closure care, liability for injury to third

persons and corrective action.

The Federal financial assurance regulations exempt State and

federally-owned or operated facilities from the financial assurance

requirements (See 40 CFR 264.140(c)), because it is EPA's belief that

State and Federally-owned or operated facilities will always have

adequate resources to conduct closure and post-closure care activities

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

today's proposal would give Tribes, like States, the authority to

operate a hazardous waste regulatory program in lieu of the Federal

program, it would not change the applicability of the existing

requirements by exempting tribally-owned or operated facilities from

the financial assurance requirements. Tribally-owned or operated

facilities subject to an authorized Tribal hazardous waste regulatory

program, therefore, would continue to have to comply with the financial

assurance

[[Page 30482]]

requirements like all other owners and operators of treatment, storage

or disposal facilities, private or public, that are not State or

federally-owned or operated facilities.

EPA is not proposing to extend the State/Federal exemption to

Tribes because EPA believes that the financial resources that would be

available to a specific Tribe in the event closure, post-closure, or

liability obligations were triggered should be evaluated. EPA believes

that Tribal members will not enjoy an equivalent degree of protection

from a tribally operated program unless there are assurances provided

that there will be adequate resources to address these obligations.

Because at this time many Tribes may not have the tax base or other

means of raising revenue as do the States and the Federal government,

EPA believes that, as a general matter, it would not be prudent to

extend to Tribally owned or operated facilities the financial assurance

exemption. The financial assurance requirements ensure that certain

protections will be available to persons who might be negatively

affected by a facility. EPA believes that financial compensation should

be available to members of Indian Tribes (as they are for citizens of

States) for third party injuries or for clean-ups if needed. The costs

associated with closure and post-closure care activities, not to

mention liability compensation to injured parties, could greatly burden

Tribal administrations and, if unavailable, could compromise Tribal

members' health and environment.

EPA is, however, soliciting comment on the possibility of

developing a special financial test for tribally owned/operated

facilities subject to RCRA Subtitle C, identical or similar to that

developed for MSWLFs Local Government (``LOGO'') Test under

Sec. 258.74(f). The ``LOGO'' consists of a (1) financial component, (2)

a public notice component, and (3) a record keeping and reporting

component. A local government must satisfy each of the three components

to pass the test and must pass the test on an annual basis.

EPA is also interested in receiving comments on other options that

would provide the same level of protection to tribal citizens currently

afforded by the financial requirements of Sec. 264.140(c).

6. EPA's Retained Authority

Under this proposal, EPA would retain responsibility for

implementing the RCRA and HSWA program authorities not included in a

Tribe's authorized partial program. For example, if a Tribe received

authorization for only a generator, transporter, and non-HSWA storage

facility program, EPA would retain responsibility for regulating any

incinerators, landfills, or other treatment or disposal facilities, and

for implementing the HSWA corrective action requirements at all TSD

facilities. This situation contrasts significantly from that which

occurs in States, where partial program authorizations are not

available. In authorized States, for example, the States regulate all

types of treatment, storage, or disposal facilities (TSDFs). In these

States, EPA implements only the HSWA program, and only until the States

receive authorization for the HSWA authorities. EPA emphasizes that

this proposal would not diminish the scope of the overall RCRA Subtitle

C program applicable in Indian Country. A Tribe's approved partial

program components, considered together with the program components

retained by EPA, would define a complete RCRA hazardous waste program

with the authority and flexibility to respond to the full gamut of

facilities, releases, or other circumstances.

7. Capability Considerations

In administering the Subtitle C authorization program under RCRA

section 3006, EPA realizes that a State or Tribal hazardous waste

management program cannot be judged solely by whether it has equivalent

legal authorities and whether it can provide acceptable forms of

documentation. Indeed, EPA's overarching objective in authorization is

to approve quality programs that are protective of health and the

environment. Therefore, EPA looks beyond the elements of a State's

authorities (i.e., its legal codes, policies, forms) and evaluates the

capability of the State agencies to implement and manage their

substantive Subtitle C program responsibilities.

Under current policies and procedures, EPA conducts a capability

assessment both when a State seeks its initial or ``base program''

authorization, and subsequently when the State adopts program revisions

which the EPA Region determines may have major impacts on the State's

hazardous waste program. The adoption of rules bringing a significant

class of new generators or permitted facilities into the State's

program, or the adoption of the HSWA corrective action program, are

examples of revisions that would likely trigger a new capability

assessment.

Capability is a fluid concept that does not typically lend itself

to precise measurement. While capability can fluctuate in the short-

term due to a response to budget cuts or loss of key staff, EPA's goal

in conducting capability assessments is to focus on the overall, long-

term performance of a State's program, and the expected future

performance. The emphasis is placed on a program's long-term (typically

3 years or more) effectiveness, its ability to meet its commitments

over the long term, indicators of constant improvement over time, as

well as consistency in performance. Critical program areas that are

assessed include enforcement, permitting, corrective action, and

program management. In each area, current guidance suggests factors

that are indicative of a capable program, and factors that may be

indicative of a capability problem. For example, in the enforcement

area, the assessment would examine a State's enforcement strategies,

its record for completing quality inspections, its violation

classification plan and record, its record of taking timely enforcement

responses that are appropriate to the severity of violations, and its

proven ability to meet its grant commitments in the enforcement area.

In the management area, EPA examines whether sufficient resources are

committed to the hazardous waste program, whether there is a proper mix

of staff and skills to carry out the program, whether the State

provides appropriate training, and whether the State maintains the

necessary information management systems to oversee the program.

Additional criteria are suggested for the permitting and corrective

action areas. See RCRA State Authorization Capability Assessment

Guidance, revision dated October, 1991.

EPA is proposing to apply the same capability assessment criteria

to Tribal programs that it currently applies to States. However,

capability will be evaluated only with respect to the program

components for which an Indian Tribe is seeking authorization. As is

currently the practice with States, the assessment should be conducted

at the time of a Tribe's initial authorization application, as well as

at subsequent times when the Tribe is adopting program revisions that

may have a significant impact on its authorized program.

Because of the availability in this proposal of partial program

authorization, capability considerations may have quite different

effects for Indian Tribes as they do for States. First, capability may

fundamentally affect the scope of the Subtitle C program for which a

Tribe seeks authorization. Under this proposal, a Tribe need not

develop capabilities to permit or oversee all types of RCRA facilities.

In some instances, the Tribe may never need to

[[Page 30483]]

concern itself with certain types of facilities, while in other

instances, the skills and capabilities may be more appropriately

retained and implemented by EPA. In either case, the lack of a

particular capability would not necessarily be viewed as an impediment

to authorization; rather, it may only affect the scope of the program

for which the Tribe would be eligible to obtain authorization. In

practice, Tribes would be expected to limit their program applications

to those areas where they can demonstrate the requisite capability. EPA

would also have the discretion to authorize less than all the program

components applied for by a Tribe, where capability issues specific to

one or more components of an application are not resolved to EPA's

satisfaction.

The relationship of capability to partial programs is a very

significant aspect of this proposal. This approach to capability

assessments is consistent with the EPA's Indian Policy mandate that EPA

remove administrative impediments to Tribal primacy in administering

environmental programs such as RCRA.

EPA believes, however, that there are limits on the extent to which

it should tailor a program authorization to a Tribe's demonstrated

capability. A hazardous waste program that is exceedingly narrow in

scope may not be appropriate for authorization, despite the importance

attached to authorization as a means of recognizing a Tribe's

sovereignty. Therefore, EPA believes that the minimal program

considerations discussed above in section IV.H.4 of this preamble are

helpful in determining the minimal capabilities that must be present to

warrant an authorization review. Likewise, in cases where the

allocation of program burdens that would result from a partial

authorization would leave EPA with disproportionate and substantial

responsibilities, EPA may also withhold partial authorization. This

follows from the fact that the investment by EPA of resources in

overseeing an approved program of very narrow scope would only drain

resources that might be better used by EPA to discharge its own

implementation responsibilities.

EPA's evaluation of capability may also consider if applicable, the

relationship between the existing or proposed Tribal agency that will

implement the hazardous waste program and any potential regulated

Tribal entities. It is not uncommon for a Tribe to be both regulator

and regulated entity, which may result in a potential conflict of

interest. Independence of the regulator and regulated entity best

assures effective and fair administration of a hazardous waste program.

Tribes will generally not be required to divest themselves of ownership

of any regulated entities to address any potential conflict. Nor is the

Agency intending to limit Tribal flexibility in creating structures

that will ensure adequate separation of the regulator and regulated

entity. Instead, this discussion is intended to alert Tribes at an

early date about potential problems in obtaining program authorization.

8. Review Standards

While EPA is today proposing to allow Indian Tribes to obtain

partial RCRA program authorization, the Agency is not proposing any

alteration to the review standards that will be used to evaluate the

merits of Tribes' applications. That is, unless otherwise noted, the

Tribe's application must demonstrate that each component of the Tribe's

partial program meets the statutory authorization criteria.

Specifically, the Tribe must show that each program component is

equivalent to the corresponding Federal program requirements. Each

component must be consistent with the Federal program and with the RCRA

Subtitle C programs applicable in other authorized states. In addition,

the Tribe must show that the components are no less stringent than the

corresponding Federal program requirements, except for those

requirements (e.g. civil or criminal enforcement) to which the Tribe

agrees in the MOA to transfer to EPA.

To the extent that an Indian Tribe's partial program would include

permitting authority for treatment, storage, or disposal facilities

(TSDFs), the Tribe's program would also be required to meet the

statutory requirements for public participation in the issuance of RCRA

permits. RCRA also requires, pursuant to section 3006(f), that the

Tribes demonstrate that their program provides for the public

availability of information regarding hazardous waste management

facilities and sites, in substantially the same manner, and to the same

degree, as EPA would provide information to the public under the

Federal Freedom of Information Act, 5 U.S.C. 301, 552, 553, 40 CFR part

2.

9. Obligation to Adopt Program Revisions

The current authorization regulations at 40 CFR part 271 impose a

continuing obligation on authorized states to update their authorized

programs to reflect revisions made to the Federal regulatory program.

Under 40 CFR 271.21, there are schedules imposed by which States must

adopt counterparts to Federal program changes, and procedures for

submitting these program revisions to EPA for authorization. In

addition, Sec. 271.21(a) requires that an authorized State notify EPA

of any proposed modifications to its basic statutory or regulatory

authority, as well as to its forms, procedures, or priorities. The

obligation to keep EPA informed of proposed program changes applies

both to changes proposed in response to Federal program revisions, and

to proposed changes that are initiated solely as a matter of state law

or policy.

EPA proposes that these same obligations would apply to Indian

Tribes' authorized partial programs. Tribes would be required to notify

EPA of any significant, proposed changes to their basic legal

authorities, policies, forms, or priorities, and to modify their

programs in response to Federal program revisions according to the

schedules in Sec. 271.21. However, the obligation to modify a partial

program and seek EPA authorization of revisions would be more limited

than in the case of other authorized States. An Indian Tribe's

obligation would extend only to Federal revisions which directly affect

the components of the Tribe's authorized program. For example, a

partial program which regulates only RCRA generators and transporters

would need to undergo a revision to address a change to the Hazardous

Waste Uniform Manifest promulgated by EPA, since that change affects

directly the waste management requirements for generators and

transporters. However, the same partial program would not need to

undergo a revision to address new Federal standards for incinerator

emissions, since incinerators are beyond the scope of the approved

partial program.

EPA recognizes that there is the potential for some confusion in

identifying the extent to which approved partial programs must undergo

revision to address Federal program changes. The Agency believes that

Tribes and the EPA regions will need to confer closely on Federal

program revisions, and reach an understanding on those that will

trigger the need for a Tribal program modification. An agreement on the

scope of the Tribe's responsibility to modify its approved program

should be included in the annual workplan that would be negotiated by

EPA and the Tribe in conjunction with the Tribe's receipt of RCRA 3011

grant funds to administer its authorized hazardous waste program. Of

course, Federal program changes that are determined

[[Page 30484]]

not to affect the Tribe's partial program would remain EPA's

responsibility to implement. Therefore, there would be no loss of

overall program coverage, since the Tribe's partial program and the

program retained by EPA should together constitute a full RCRA Subtitle

C program.

EPA requests comment on the proposal to subject Indian Tribe's

partial programs to the same review standards and schedules for program

modifications that apply currently to States. The Agency is

particularly interested in comments that suggest ways to reduce the

potential for confusion in implementing the review of partial programs

and in defining Tribes' responsibilities to update their partial

programs.

V. Other Regulatory Requirements

A. Compliance with Executive Order

Under Executive Order 12866 [58 FR 51735 (October 4, 1993)], EPA

must determine whether the regulatory action is ``significant'' and

therefore subject to Office of Management and Budget (OMB) review and

the requirements of the Executive Order. The order defines

``significant regulatory action'' as one that is likely to result in a

rule that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, productivity,

competition, jobs, the environment, public health or safety, or state,

local or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

EPA believes that today's proposed rule raises a novel policy

issue, one which arises out of the President's priority to build

relationships with Tribal governments.

EPA has concluded that this rule is ``significant'' and is

therefore subject to OMB review pursuant to Executive Order 12866. In

addition, EPA believes that today's proposed rule is consistent with

the regulatory philosophy and principles identified in the Executive

Order.

B. Regulatory Flexibility Act

Section 603 of the Regulatory Flexibility Act (the Act) (15 U.S.C.

8091 et seq. Pub. L. 96-534, September 19, 1980) requires EPA to

prepare and make available for comment a regulatory flexibility

analysis in connection with rulemaking. The initial regulatory

flexibility analysis must describe the impact of a proposed rule on

small business entities. If, however, a regulation will not have a

significant impact on a substantial number of small business entities,

no such analysis is required.

EPA has determined that this proposal will not impact significantly

a substantial number of small business entities. Therefore, a

regulatory flexibility analysis is not required.

EPA's determination of no significant impact is based on the fact

that this proposal affects only the determination of what government

entity shall administer the RCRA program in Indian country. It does not

affect the regulatory requirements to which hazardous waste management

facilities, including any small business entities, are subject.

This proposed regulation, if promulgated, does not require the

Indian Tribes to obtain authorization to operate a hazardous waste

program. The decision whether to obtain authorization rests with each

individual Indian Tribe. If a Tribe determines that obtaining

authorization to operate a hazardous waste program will not be

advantageous, including economically advantageous, to the Tribe, the

Tribe may decide not to seek authorization. In addition, EPA believes

that the number of Indian Tribes that will apply for authorization to

operate a hazardous waste program under this proposed rule, if

promulgated, will be small as compared with the total number of Indian

Tribes potentially eligible for authorization.

Notwithstanding the voluntary nature of the authorization, the

Agency also considers alternatives to a full program authorization. As

an alternative to obtaining authorization to operate a full hazardous

waste program, the Agency is proposing to allow a Tribe to apply for

and receive authorization to operate a partial hazardous waste program.

Allowing a Tribe the option to apply for and obtain authorization to

operate a partial hazardous waste program will lessen the impact, if

any, on the Tribe as a result of this proposed rule.

The proposed regulation will not have a significant adverse impact

on a substantial number of small businesses or small organizations.

Since RCRA already imposes requirements on all owners and operators of

hazardous waste treatment, storage, and disposal facilities in Indian

country, EPA believes that the proposed rule, if promulgated, will not

add requirements beyond those already imposed under the Federal RCRA

requirements. Although it is conceivable that an Indian Tribe could

impose greater requirements upon an owner or operator of a hazardous

waste facility, such situations are likely to be rare. Moreover, any

additional impacts, including economic impacts, resulting from

implementation of this proposed rule, if promulgated, is expected to be

negligible, since Tribal regulation of these activities is limited to

areas within Tribal jurisdiction.

Therefore, pursuant to section 605(b) of the Regulatory Flexibility

Act, 5 U.S.C. 605(b), the Administrator certifies that this proposed

rule will not have a significant economic impact on a substantial

number of small entities.

C. Paperwork Reduction Act

The information collection requirements in this proposed rule have

been submitted for approval to the Office of Management and Budget

(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An

Information Collection Request (ICR) document has been prepared by EPA

(ICR No. 1778.01) and a copy may be obtained from Sandy Farmer, OPPE

Regulatory Information Division; U.S. Environmental Protection Agency

(2137); 401 M St., SW., Washington, DC 20460 or by calling (202) 260-

2740.

In order to extend to Indian Tribes the opportunity to become

authorized to administer hazardous waste programs in lieu of EPA, EPA

needs to make a determination that the proposed program fully meets

federal criteria. In general, to obtain authorization, Tribes must meet

the same criteria as the States as outlined in 40 CFR part 271,

including a demonstration of capability, which is assessed in the same

manner as those from States.

To make a final determination, EPA must collect information in the

form of an application from Tribes. Pursuit of authorization is

entirely voluntary, and the universe of respondents involved in this

information collection will be limited to those Tribes seeking approval

of their hazardous waste programs. However, interested Tribes must

submit all of the required information to EPA in order for EPA to make

a final determination. The information which Tribes would submit is

public information; therefore, no problems of confidentiality or

sensitive questions arise.

Each respondent would only have to respond once, and the EPA is

estimating the number of responses at six per year for the three year

period covered by this ICR, for a total of eighteen. The

[[Page 30485]]

projected annual cost and hour burden per respondent for the submittal

of an application is approximately 358 hours, at a cost of $7,990. The

projected totals for all eighteen estimated respondents over three

years are approximately 6,444 hours and $143,832. In addition, cost

estimates for the annual respondent reporting and recordkeeping per

respondent range from $219 (low end) to $6,369 (high end). The

projected respondent reporting and recordkeeping total range, also with

six respondents a year for three years, is from $3,942 to $114,642.

These costs represent start-up or capital costs. There are no

operation and maintenance reporting or purchase of services costs

associated with the proposed RCRA Subtitle C Indian Authorization Rule.

Given these parameters, the bottom line respondent burden and cost

estimate is for 6,444 hours and ranges from $147,774 to $258,474 over

three years.

Burden means the total time, effort, or financial resources

expended by persons to generate, maintain, retain, or disclose or

provide information to or for a Federal agency. This includes the time

needed to review instructions; develop, acquire, install, and utilize

technology and systems for the purposes of collecting, validating, and

verifying information, processing and maintaining information, and

disclosing and providing information; adjust the existing ways to

comply with any previously applicable instructions and requirements;

train personnel to be able to respond to a collection of information;

search data sources; complete and review the collection of information;

and transmit or otherwise disclose the information.

An Agency may not conduct or sponsor, and a person is not required

to respond to a collection of information unless it displays a

currently valid OMB control number. The OMB control numbers for EPA's

regulations are listed in 40 CFR part 9 and 48 CFR ch. 15.

Comments are requested on the Agency's need for this information,

the accuracy of the provided burden estimates, and any suggested

methods for minimizing respondent burden, including through the use of

automated collection techniques. Send comments on the ICR to the

Director, OPPE Regulatory Information Division; U.S. Environmental

Protection Agency (2137); 401 M St., SW., Washington, DC 20460; and to

the Office of Information and Regulatory Affairs, Office of Management

and Budget, 725 17th St., NW., Washington, DC 20503, marked

``Attention: Desk Officer for EPA.'' Include the ICR number in any

correspondence. Since OMB is required to make a decision concerning the

ICR between 30 and 60 days after June 14, 1996, a comment to OMB is

best assured of having its full effect if OMB receives it by July 15,

1996. The final rule will respond to any OMB or public comments on the

information collection requirements contained in this proposal.

D. Unfunded Mandates Reform Act

Under section 202 of the Unfunded Mandates Reform Act of 1995 (the

Act), Pub. L. 104-4, which was signed into law on March 22, 1995, EPA

generally must prepare a written statement for rules with Federal

mandates that may result in estimated costs to State, local, and tribal

governments in the aggregate, or to the private sector, of $100 million

or more in any one year. When such a statement is required for EPA

rules, under section 205 of the Act EPA must identify and consider

alternatives, including the least costly, most 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. Tribal

requests for authorization of their RCRA Subtitle C programs are

voluntary and impose no Federal intergovernmental mandate within the

meaning of the Act. Rather, by having its hazardous waste program

authorized, a Tribe gains the authority to implement its hazardous

waste program in lieu of the federal hazardous waste program within its

jurisdiction. Thus, because today's rule does not constitute a

``Federal intergovernmental mandate'' under the Act, EPA has not

conducted the analyses required by section 202 and 205 of the Act.

As to section 203 of the Act, the authorization of a Tribal program

will not significantly or uniquely affect small governments other than

the applicants. As to the applicants, Tribes have received notice of

the requirements of an authorized program (through this rulemaking

process), and will have meaningful and timely input into the

development of their individual program requirements throughout the

authorization process. The Tribes therefore are fully informed as to

compliance with the authorized program. Thus, any applicable

requirements of section 203 of the Act have been satisfied.

List of Subjects

40 CFR Part 35

Environmental protection, Hazardous waste.

40 Parts 270 and 271

Environmental protection, Administrative practice and procedure,

Hazardous waste, Indians-lands, Reporting and recordkeeping

requirements.

Dated: May 20, 1996.

Carol M. Browner,

Administrator.

Therefore, it is proposed that 40 CFR parts 35, 270 and 271 be

amended as follows:

PART 35--STATE, TRIBAL AND LOCAL ASSISTANCE

Subpart A--Financial Assistance for Containing Environmental

Programs

1. The authority citation for part 35, subpart A, continues to read

as follows:

Authority: Secs. 105 and 301(a) of the Clean Air Act, as amended

(42 U.S.C. 7405 and 7601(a)); secs. 106, 205(g), 205(j), 208, 319,

501(a), and 518 of the Clean Water Act, as amended (33 U.S.C. 1256,

1285(g), 1285(j), 1288, 1361(a) and 1377); secs. 1443, 1450, and

1451 of the Safe Drinking Water Act (42 U.S.C. 300j-2, 300j-9, and

300-11); secs. 2002(a) and 3011 of the Solid Waste Disposal Act, as

amended by the Resource Conservation and Recovery Act of 1976 (42

U.S.C. 6912(a), 6931, 6947, and 6949); and secs. 4, 23, and 25(a) of

the Federal Insecticide, Fungicide and Rodenticide Act, as amended

(7 U.S.C. 136(b), 136(u) and 136w(a)).

2. Section 35.105 is amended by adding a sentence to the end of the

definition of ``Eligible Indian Tribe,'' and by revising the definition

of ``Indian Tribe'' to read as follows:

Sec. 35.105 Definitions.

* * * * *

Eligible Indian Tribe means, * * * For purposes of the Resource

Conservation and Recovery Act Subtitle C, any federally recognized

Indian Tribe

[[Page 30486]]

that meets the requirements set forth at Sec. 35.515.

* * * * *

Indian Tribe means, for purposes of the Public Water System

Supervision, Underground Water Source Protection, or Hazardous Waste

Management grants, any Indian Tribe, band, group, or community

recognized by the Secretary of the Interior and having a governmental

body carrying out substantial governmental duties or powers over a

defined area. For purposes of grants under the Clean Water Act, the

term ``Indian Tribe'' means any Indian Tribe, band, group, or community

recognized by the Secretary of the Interior and having a governmental

body exercising substantial governmental duties and powers over a

Federal Indian reservation.

* * * * *

Sec. 35.500 [Amended]

3. In Sec. 35.500 by removing the words ``(as defined in section

1004 of the Act).''

4. Section 35.515 is added under the heading ``Hazardous Waste

Management'' (Section 3011) to read as follows:

Sec. 35.515 Eligible Indian Tribes.

The Regional Administrator may award Resource Conservation and

Recovery Act section 3011(a) grants to Indian Tribes that meet the

definition of ``Indian Tribe'' set forth in 40 CFR 35.105 and that have

submitted the information described at 40 CFR 271.27(a)(3)(ii).

PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE

PERMIT PROGRAM

The authority citation for part 270 continues to read as follows:

Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and

6974.

5. In Sec. 270.2, by revising the definition of ``State,'' and by

adding in alphabetical order definitions for ``Indian Tribes'' and

``Indian country'' to read as follows:

Sec. 270.2 Definitions.

* * * * *

Indian country means: (1) All lands within the limits of any Indian

reservation under the jurisdiction of the United States Government,

notwithstanding the issuance of any patent, and including rights-of-way

running through the reservation;

(2) All dependent Indian communities within the borders of the

United States whether within the original or subsequently acquired

territory thereof, and whether within or without the limits of a State;

and

(3) All Indian allotments, the Indian titles to which have not been

extinguished, including rights of way running through the same.

* * * * *

Indian Tribe means any Indian Tribe, band, nation, or community

that is recognized by the Secretary of the Interior and that has a

governmental body exercising substantial governmental duties and

powers.

* * * * *

State means any of the 50 States, the District of Columbia, Guam,

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

and the Commonwealth of the Northern Mariana Islands. For purposes of

Sections 3006 and 3011 of RCRA, the term State also extends to Indian

Tribes.

* * * * *

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE AND TRIBAL

HAZARDOUS WASTE PROGRAMS

The authority citation for part 271 continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a) and 6926.

6. In Sec. 271.1 by revising paragraph (h) and adding paragraph (k)

to read as follows:

Sec. 271.1 Purpose and scope.

* * * * *

(h) Partial State programs are not allowed for programs operating

under RCRA final authorization, except as provided in Sec. 271.27 for

partial programs operated by Indian Tribes. However, in many cases

States will lack authority to regulate activities in Indian country.

This lack of authority does not impair a State's ability to obtain full

program authorization in accordance with this subpart, i.e., inability

of a State to regulate activities in Indian country does not constitute

a partial State program. EPA will administer the program in Indian

country if neither the State or Indian Tribe has program authority.

* * * * *

(k) The substantive provisions and procedures specified in this

subpart for State program submissions, and for EPA's approving,

revising, and withdrawing authorization of State programs apply to

programs operated by Indian Tribes. Additional substantive and

procedural requirements that are applicable only to programs operated

by Indian Tribes are set forth at Sec. 271.27 of this subpart.

7. By adding Sec. 271.27 to read as follows:

Sec. 271.27 Requirements for Indian Tribe Programs.

(a) The substantive requirements and procedures established in

Subpart A for State hazardous waste programs shall apply to Indian

Tribe programs, except that:

(1) The disallowance of partial RCRA programs contained in

Sec. 271.1(h) shall not apply to partial Indian Tribe programs that

meet the criteria in paragraph (b) of this section.

(2) The Tribal Chairman or equivalent official shall be substituted

for the Governor of the State in requesting program authorization under

Sec. 271.5(a)(1).

(3) (i) The Program Description discussed in Sec. 271.6 shall also

include a map, legal description, or other information sufficient to

identify the geographical extent of the Indian country over which the

Indian Tribe seeks jurisdiction. This information shall also identify

the location of any generator, transporter, and treatment, storage, or

disposal facility subject to RCRA Subtitle C requirements.

(ii) The Program Description discussed in Sec. 271.6 shall also

include a demonstration that the Tribe; is recognized by the Secretary

of the Interior; has an existing government exercising substantial

governmental duties and powers; has adequate civil regulatory

jurisdiction over the subject matter and entities to be regulated; and

is reasonably expected to be capable of administering the federal

environmental program for which it is seeking authorization. If the

Administrator has previously determined that a Tribe has met these

prerequisites for another EPA program authorization, then that Tribe

need provide only that information unique to the RCRA hazardous waste

program.

(4) (i) The Tribal Legal Certification (the equivalent to the

Attorney General's Statement described in Sec. 271.7) shall be

submitted and signed by the Tribal attorney or by an equivalent

official retained by the Indian Tribe for representation in matters

before EPA or the courts pertaining to the Indian Tribe's program. The

Certification shall include an assertion that the attorney has the

authority to represent the Tribe with respect to the Tribe's

authorization application.

(ii) Where an Indian Tribe asserts its jurisdiction over activities

on non-member fee lands within the boundaries of a reservation, the

Tribal Legal

[[Page 30487]]

Certification shall clearly identify the activities and areas affected

by that claim. The Tribal Legal Certification shall also include an

analysis of the Tribe's authority to implement the permitting and

enforcement provisions of subpart C on those non-member fee lands.

(5) The Memorandum of Agreement described in Sec. 271.8 shall be

executed by the Indian Tribe's counterpart to the State Director; e.g.

the Director of the Tribal Environmental Office, Program or Agency.

Indian Tribes are not required to meet the requirements of

Sec. 271.16(a)(3)(ii) for the purposes of criminal authority over non-

Indians or for the purposes of imposing criminal fines over $5,000.00.

The Memorandum of Agreement required in 271.8 shall include a provision

for the timely and appropriate referral to the Regional Administrator

for those criminal enforcement matters where that Tribe does not have

authority (i.e., those addressing criminal violations by non-Indian or

violations meriting penalties over $5,000.00). The Agreement shall also

identify any enforcement agreements that may exist between the Tribe

and any State.

(b) Indian Tribes may apply for and receive authorization from EPA

to operate a partial RCRA program. A partial program may be approved

when the Indian Tribe's application demonstrates to EPA's satisfaction

that the following factors are present:

(1) The composition and size of the Indian Tribe's regulated

community warrant the development and operation of a partial program.

(2) The components for which the Indian Tribe seeks authorization

are severable from the remainder of the program retained by EPA, so

that the respective roles and responsibilities of the Indian Tribe and

EPA will be reasonably ascertainable and implementable.

(3) The program components applicable to the Indian Tribes'

regulated community that would be retained by EPA, reasonably require a

special expertise that is not readily available to the Indian Tribe.

(4) The program components for which the Indian Tribe seeks

authorization define a bona-fide and significant hazardous waste

management program for which the Indian Tribe possesses the capability

to implement and manage.

(c) A partial RCRA program may not be approved under paragraph (b)

of this section, unless it includes, at a minimum, counterparts to the

following Federal program requirements:

(1) Appropriate definitions in 40 CFR part 260.

(2) Waste identification requirements of 40 CFR part 261.

(3) Generator requirements set forth in 40 CFR parts 262 and 268.

(4) Transporter requirements contained in 40 CFR part 263.

(5) Facility permitting standards in 40 CFR part 264, appropriate

for the types of hazardous waste management facilities within the

Indian Tribe's jurisdiction. However, specific facility permitting

standards may be waived if EPA has retained permit issuance authority

for the treatment, storage, and disposal facilities within the Tribe's

jurisdiction.

(d) When a partial RCRA program is approved under this section, EPA

retains direct implementation and enforcement responsibilities for

those program components which are not included in the Indian Tribe's

approved program.

(e) The provisions of Sec. 271.21 on program revisions apply to

Indian Tribe programs, except that an Indian Tribe's obligation to

modify its authorized program to address subsequent Federal program

changes extends only to those Federal program changes that directly

affect the components of the Indian Tribe's authorized program.

Subsequent Federal program changes promulgated under non-HSWA authority

shall not take effect in an authorized Indian Tribe until the Indian

Tribe has adopted the change under its laws and EPA has approved the

program revision. However, amendments to HSWA provisions for which a

Tribe is not authorized shall take effect under Federal authority

immediately upon the effective date of the rule.

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

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