# 61 FR 2584: Subtitle D Regulated Facilities; State/Tribal Permit Program Determination of Adequacy; State/Tribal Implementation Rule (STIR) > Federal · Regulations · In force URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_96-878 ## Section - **Citation:** 61 FR 2584 - **Heading:** Subtitle D Regulated Facilities; State/Tribal Permit Program Determination of Adequacy; State/Tribal Implementation Rule (STIR) - **Jurisdiction:** Federal - **Kind:** Regulations - **Status:** In force - **Text as of:** August 14, 2026 - **Source:** Compiled text - **Location:** Federal Register / Vol. 61 / 61 FR 2584 ## Text Part II Environmental Protection Agency _______________________________________________________________________ 40 CFR Parts 239 and 258 State/Tribal Permit Program Adequacy Determination: Municipal Solid Waste Facilities; Proposed Rule Proposed Rules ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 239 and 258 [FRL-5400-5/EPA/530-Z-95-010] RIN 2050-AD03 Subtitle D Regulated Facilities; State/Tribal Permit Program Determination of Adequacy; State/Tribal Implementation Rule (STIR) AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: This proposed rule is designed to guide States and Indian Tribes in developing, implementing, and revising programs to issue and enforce permits for facilities which landfill discarded materials known as ``municipal solid waste (MSW)''. On October 9, 1991, the Environmental Protection Agency (EPA) published the ``Solid Waste Disposal Facility Criteria,'' a set of standards prescribing how MSW landfills are to be constructed and operated. States are to adopt and implement permit programs to ensure that MSW landfills comply with these standards. EPA is to review the State permit programs and determine whether they are adequate. The STIR establishes criteria and procedures which EPA will use to determine whether the State permit programs are adequate to ensure compliance with the Solid Waste Disposal Facility Criteria. While the Disposal Facility Criteria automatically apply to all MSW landfills, States with permit programs deemed adequate have the authority to provide some flexibility to landfill owners and operators in meeting the criteria. To date, using the draft STIR as guidance, EPA has approved more than 40 state permit programs. This proposal is designed to minimize disruption of existing state/Tribal programs isposal Facility Criteria automatically apply to all MSW landfills, States with permit programs deemed adequate have the authority to provide some flexibility to landfill owners and operators in meeting the criteria. To date, using the draft STIR as guidance, EPA has approved more than 40 state permit programs. This proposal is designed to minimize disruption of existing state/Tribal programs. Eventual promulgation of a final STIR is not expected to disrupt approved programs, and will provide a flexible framework for future program modifications. The Resource Conservation and Recovery Act (RCRA) is the legal basis for the proposed STIR. RCRA requires States to adopt and implement permit programs to ensure compliance with the Federal Disposal Facility Criteria and requires EPA to determine the adequacy of the State permit programs. So that management of MSW is equally protective on Indian lands, the STIR also gives Indian Tribes the right to apply for EPA approval of their landfill permit programs. DATES: Comments on this proposed rule must be submitted on or before April 25, 1996. ADDRESSES: Commentors must send an original and two copies of their comments to: Docket Clerk, mailcode: 5305w, Docket No. F-96-STIP-FFFFF, U.S. Environmental Protection Agency Headquarters, 401 M Street SW.; Washington, D.C. 20460. Comments should include the docket number F-96- STIP-FFFFF. The public docket is located at Crystal Gateway, North #1, 1235 Jefferson Davis Highway, First Floor, Arlington , VA and is available for viewing from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. Appointments may be made by calling (703) 603-9230. Copies cost $0.15/page. Charges under $25.00 are waived. 20460. Comments should include the docket number F-96- STIP-FFFFF. The public docket is located at Crystal Gateway, North #1, 1235 Jefferson Davis Highway, First Floor, Arlington , VA and is available for viewing from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. Appointments may be made by calling (703) 603-9230. Copies cost $0.15/page. Charges under $25.00 are waived. FOR FURTHER INFORMATION CONTACT: For general information contact the RCRA Hotline, Office of Solid Waste, U.S. Environmental Protection Agency Headquarters, 401 M Street SW.; Washington, D.C. 20460, (800) 424-9346; TDD (800) 553-7672 (hearing impaired); in Washington, D.C. metropolitan area the number is (703) 412-9810, TDD (703) 486-3323. For more detailed information contact Mia Zmud, Office of Solid Waste (mailcode 5306W), U.S. Environmental Protection Agency Headquarters, 401 M Street SW., Washington, D.C. 20460; (703) 308-7263. SUPPLEMENTARY INFORMATION: Copies of the following document are available from the Docket Clerk, mailcode 5305, U.S. Environmental Protection Agency Headquarters, 401 M Street SW.; Washington, D.C. 20460, (202) 475-9327. Preamble Outline I. Authority II. Background A. Approach B. Part 258 Revised Criteria C. Non-municipal solid waste criteria D. Rationale for Today's Proposed Rule E. Part 239 Determination of Permit Program Adequacy F. Differences from Subtitle C Authorization Process G. Indian Lands H. Enforcement III. Section-by-Section Analysis of 40 CFR Part 239 A. Purpose and Scope (Subpart A) B. Components of Program Application (Subpart B) C. Requirements for Adequate Permit Programs (Subpart C) D. Adequacy Determination Procedures (Subpart D) E. Changes to Part 258 IV. Economic and Regulatory Impacts A. Regulatory Impact Analysis B. Regulatory Flexibility Act C. Paperwork Reduction Act D. Unfunded Mandates Reform Act I. Authority FR Part 239 A. Purpose and Scope (Subpart A) B. Components of Program Application (Subpart B) C. Requirements for Adequate Permit Programs (Subpart C) D. Adequacy Determination Procedures (Subpart D) E. Changes to Part 258 IV. Economic and Regulatory Impacts A. Regulatory Impact Analysis B. Regulatory Flexibility Act C. Paperwork Reduction Act D. Unfunded Mandates Reform Act I. Authority EPA is proposing these regulations under the authority of sections 2002(a)(1) and 4005(c) of the Resource Conservation and Recovery Act of 1976, as amended by HSWA (RCRA or the Act). Section 4005(c)(1)(B) requires each State to develop and implement a permit program to ensure that facilities that may receive hazardous household waste or hazardous waste from conditionally exempt small quantity generators are in compliance with the Subtitle D Federal revised criteria promulgated under section 4010(c). Section 4005(c)(1)(C) further directs EPA to determine whether State permit programs are adequate to ensure compliance with the Subtitle D Federal revised criteria. Section 2002(a)(1) of RCRA authorizes EPA to promulgate regulations necessary to carry out its functions under the Act. II. Background A. Approach The regulation of solid waste management historically has been a State and local concern. EPA fully intends that States/Tribes will maintain the lead role in implementing the Subtitle D Federal revised criteria as promulgated. This proposal is consistent with general EPA policy that places primary responsibility for coordinating and implementing many environmental protection programs with the States/ Tribes. While a State/Tribe may simply adopt the Federal standards, they also may choose to take advantage of the significant flexibility designed into today's proposal. Following are three illustrations of how today's proposal is designed to cause a minimum disruption of existing State/Tribal permit programs ordinating and implementing many environmental protection programs with the States/ Tribes. While a State/Tribe may simply adopt the Federal standards, they also may choose to take advantage of the significant flexibility designed into today's proposal. Following are three illustrations of how today's proposal is designed to cause a minimum disruption of existing State/Tribal permit programs. First, EPA's goal is for States/Tribes to apply for and receive approval of their Subtitle D permit programs. Today's proposal reflects this policy by requiring elements of basic authority, rather than prescriptive programmatic elements. This approach establishes a framework that allows States/Tribes flexibility in the structure of their individual permit programs, while requiring that States/Tribes have the necessary authority to ensure that Subtitle D facilities comply with the Federal revised criteria. Further, today's proposal does not define how a State/Tribe must implement the basic elements required in the Federal revised criteria for Subtitle D facilities and today's proposal. States/Tribes may use their own design standards (e.g., develop an alternative liner design), performance standards (e.g., specify a performance standard for a liner design such as setting the maximum allowable contaminant level at a relevant point of compliance), or a combination of these two approaches. Second, in assessing the States'/Tribes' authorities, EPA generally will defer to the State/Tribal certifications of legal authority and not ``second guess'' the applicants. However, if EPA receives information indicating that the applicant's legal certification is inaccurate, EPA reserves the right to conduct its own review of the applicant's legal certification and authorities approaches. Second, in assessing the States'/Tribes' authorities, EPA generally will defer to the State/Tribal certifications of legal authority and not ``second guess'' the applicants. However, if EPA receives information indicating that the applicant's legal certification is inaccurate, EPA reserves the right to conduct its own review of the applicant's legal certification and authorities. Third, a State's/Tribe's guidance documents may be used to supplement laws and regulations if the State's/Tribe's legal certification demonstrates that the guidance can be used to develop enforceable permits which will ensure compliance with the Subtitle D Federal revised criteria. Thus, in some cases, the specific technical requirements of the Subtitle D Federal revised criteria need not be contained in State/Tribal law or regulations. By allowing the States/ Tribes to use guidance in the development of enforceable permits where allowed by State/Tribal law, today's proposal mitigates the problem of States/Tribes unnecessarily having to restructure their existing laws/ regulations. B. Part 258 Revised Criteria On October 9, 1991, EPA promulgated the Subtitle D Federal revised criteria for MSWLFs (40 CFR Parts 257 and 258 Solid Waste Disposal Facility Criteria; Final Rule). These Federal revised criteria establish minimum Federal standards to ensure that MSWLFs are designed and managed in a manner that is protective of human health and the environment. The Part 258 Federal revised criteria include location restrictions and standards for design, operation, ground-water monitoring, corrective action, financial assurance, and closure/post- closure care of MSWLFs. The 40 CFR Part 258 Federal revised criteria are self-implementing on their effective date for all MSWLFs within the jurisdiction of the United States. Every standard in 40 CFR Part 258 is designed to be implemented by the owner or operator with or without oversight or participation by a regulatory agency (i.e., through a permit program) al assurance, and closure/post- closure care of MSWLFs. The 40 CFR Part 258 Federal revised criteria are self-implementing on their effective date for all MSWLFs within the jurisdiction of the United States. Every standard in 40 CFR Part 258 is designed to be implemented by the owner or operator with or without oversight or participation by a regulatory agency (i.e., through a permit program). RCRA Section 4005(c)(2)(A) authorizes EPA to enforce 40 CFR Part 258 in those cases where the Agency has determined the State/Tribal permit program to be inadequate. RCRA Section 7002 also authorizes citizen suits to ensure compliance with the Federal revised criteria.1 \1\ Nothing in this preamble or rule proposed today is intended to affect the extent of a State or Tribe's sovereign immunity to suit under RCRA. --------------------------------------------------------------------------- The Federal revised criteria for MSWLFs recognize the regulatory value of the permitting system which provides a mechanism for States/ Tribes to interact with the public and with owners/operators on site- specific issues before and after permit issuance. Within the bounds established by authorizing statutes and regulations, permitting agencies are able to interact with facility owners/operators, provide opportunity for public review and input and, at the discretion of the State/Tribe, tailor protective permit conditions and requirements to facility-specific characteristics. Once EPA has determined that State/ Tribal permit programs are adequate to ensure compliance with 40 CFR Part 258, the Part 258 Federal revised criteria provide approved States/Tribes the option of allowing MSWLF owners/operators flexibility in meeting the requirements of Part 258. The Part 258 MSWLF regulations thus provide approved States/Tribes the option of making site-specific determinations regarding MSWLF design and other requirements of Part 258 under specific conditions nce with 40 CFR Part 258, the Part 258 Federal revised criteria provide approved States/Tribes the option of allowing MSWLF owners/operators flexibility in meeting the requirements of Part 258. The Part 258 MSWLF regulations thus provide approved States/Tribes the option of making site-specific determinations regarding MSWLF design and other requirements of Part 258 under specific conditions. For example, approved States/Tribes that adopt the Federal performance standard may allow any final cover design if the owner/operator demonstrates that the design meets the performance standard of 40 CFR Part 258. Another example of such broad flexibility is the option to approve an alternative liner design instead of the prescribed composite design specified in Sec. 258.40(a)(2), as long as the alternative design meets the performance standard described in Sec. 258.40(a)(1). In addition, the flexibility afforded to an approved State/Tribe allows the application of an alternative liner design on a State/ Tribal-wide basis, so long as that design meets the performance standard in all locations throughout the State/Tribe. This demonstration, by necessity, would require the use of fate and transport modeling to demonstrate that the alternative design could meet the performance standard in ``worst-case'' scenarios. Where there is no approved permit program, there is no mechanism by which a regulatory agency can exercise flexibility in developing facility- specific conditions and requirements adequate to ensure compliance with 40 CFR Part 258. C. Non-Municipal Solid Waste Criteria ransport modeling to demonstrate that the alternative design could meet the performance standard in ``worst-case'' scenarios. Where there is no approved permit program, there is no mechanism by which a regulatory agency can exercise flexibility in developing facility- specific conditions and requirements adequate to ensure compliance with 40 CFR Part 258. C. Non-Municipal Solid Waste Criteria EPA plans to amend existing regulations to address all non- municipal solid waste facilities that may receive conditionally exempt small quantity generator (CESQG) waste. In accordance with a settlement agreement with the Sierra Club filed with the court on January 31, 1994, the Agency proposed these regulations on June 12, 1995 and will publish final regulations by July 1, 1996. Sierra Club v. Browner, Civ. No. 93-2167 (D.DC). Specific requirements relating to the approval of State/Tribal non-municipal solid waste permit programs needed to implement these amendments may be included in that rulemaking as appropriate. D. Rationale for Today's Proposed Rule Due to the significant flexibility that is only available in approved States/Tribes, the Agency made active efforts to encourage States/Tribes to seek early approval of their MSWLF permit programs. EPA conducted a pilot program with four States and EPA Regions to streamline the approval process and obtain early feedback from States and EPA Regions. The draft STIR was used as guidance in interpreting the statutory authorities and requirements, in identifying the necessary components of an application, and in making adequacy determinations of State/Tribal MSWLF permit programs. These early efforts by EPA were successful in encouraging States/Tribes to apply for approval of their MSWLF permit programs. To date, EPA has approved over 40 State/Tribal MSWLF permit programs and anticipates approval of the remaining States in the near future dentifying the necessary components of an application, and in making adequacy determinations of State/Tribal MSWLF permit programs. These early efforts by EPA were successful in encouraging States/Tribes to apply for approval of their MSWLF permit programs. To date, EPA has approved over 40 State/Tribal MSWLF permit programs and anticipates approval of the remaining States in the near future. While EPA has proceeded to approve State/Tribal permit programs using the draft STIR as guidance, the Agency believes it remains necessary to promulgate today's proposal to provide a framework for modifications of approved permit programs, to establish procedures for withdrawal of approvals allowing ample opportunity for EPA and the State/Tribe to resolve problems, and to establish the process for future program approvals (e.g., non-municipal solid waste facilities that may receive conditionally exempt small quantity generator waste). The Agency provided opportunities for public comments and public hearings on the State/Tribal MSWLF permit programs that have been approved to date and received few significant comments on the criteria used as a basis for approval. Today's proposal establishes the same approval procedures and standards used by the Agency in approving those States/ Tribes. Therefore, the Agency believes that States/Tribes with approved permit programs will not have to reapply upon promulgation of today's proposal in final form. E. Part 239 Determination of Permit Program Adequacy t comments on the criteria used as a basis for approval. Today's proposal establishes the same approval procedures and standards used by the Agency in approving those States/ Tribes. Therefore, the Agency believes that States/Tribes with approved permit programs will not have to reapply upon promulgation of today's proposal in final form. E. Part 239 Determination of Permit Program Adequacy 1. Approval Procedures for State/Tribal Permit Programs Today's proposed rule establishes the criteria and process for determining whether State/Tribal permit programs are adequate to ensure that regulated facilities are in compliance with the Subtitle D Federal revised criteria. EPA Regional Administrators will make this determination. To secure an EPA determination of adequacy under RCRA section 4005(c), a State/Tribe must submit an application for permit program approval to the appropriate EPA Regional Administrator for review. This proposed rule describes the program elements to be included in such an application and sets forth the criteria EPA will use in determining whether a State/Tribal permit program is adequate. A more detailed explanation of what EPA is proposing to require of a State/Tribe seeking a determination is found in the following sections of this preamble. 2. Approval Procedures for Partial State/Tribal Permit Programs In view of the comprehensive nature of Subtitle D Federal revised criteria, it is likely that some State/Tribal permit programs will meet the procedural and legal requirements of Part 239 but not all of the technical requirements of the Subtitle D Federal revised criteria promulgated under Sec. 4010(c) of RCRA. These State/Tribal programs would require a few revisions before the entire program could be approved. As a result, they would need to delay submittal of program approval applications until the limited number of required statutory, regulatory, and/or guidance changes were complete of the technical requirements of the Subtitle D Federal revised criteria promulgated under Sec. 4010(c) of RCRA. These State/Tribal programs would require a few revisions before the entire program could be approved. As a result, they would need to delay submittal of program approval applications until the limited number of required statutory, regulatory, and/or guidance changes were complete. This delay concerns the Agency, because a delay of the final adequacy determination while these revisions were being made could place a substantial, and often unnecessary, financial burden on owners/operators by withholding the flexibility provided by the Subtitle D Federal revised criteria in approved States/Tribes. To mitigate this problem, EPA included procedures for partial program approval in this proposal. This allows the Agency to approve those provisions of the State/Tribal permit program that meet today's proposed requirements and provides the State/Tribe time to make necessary changes to the remaining portions of its program. As a result, owners/operators will be able to work with the State/Tribal permitting agency to take advantage of the Subtitle D Federal revised criteria's flexibility for those portions of the program which have been approved. For example, if a State/Tribe does not prohibit the open burning of municipal solid waste, but the remainder of the program is approvable, the Agency could partially approve that State/Tribal program. Under this partial approval, the State/Tribe would be approved for everything but the open burning provisions. Generally, the open burning provisions may be enforced through citizen suits against owners/operators. In addition, where a citizen brings a concern to EPA's attention, the Agency will respond in an appropriate manner on a case-by-case basis tially approve that State/Tribal program. Under this partial approval, the State/Tribe would be approved for everything but the open burning provisions. Generally, the open burning provisions may be enforced through citizen suits against owners/operators. In addition, where a citizen brings a concern to EPA's attention, the Agency will respond in an appropriate manner on a case-by-case basis. In addition to the enforcement authority the Agency assumes upon determining that a State/Tribal permit program is inadequate, EPA retains enforcement authority under RCRA Section 7003 to address situations that may pose an imminent and substantial endangerment to human health or the environment. In addition, EPA may also exercise enforcement authority under Section 104(e) of the Comprehensive Environmental Response and Liability Act (CERCLA) in situations where there is a reasonable basis to believe there may be a release or threat of release of a hazardous substance, pollutant, or contaminant. Section 239.11 of today's proposal allows the Agency to approve either partial or complete State/Tribal permit programs. EPA intends to approve partial permit programs only when the State/Tribe has a few discrete technical requirements to revise. Those States/Tribes that need to make substantial changes to their permit program are encouraged to complete all necessary program modifications before submitting an application for approval. In establishing the partial approval process, EPA does not intend to create a two-step process by which every State/ Tribe would first gain approval for those parts of their permit program that are currently adequate and then revise the remainder of the program. A State/Tribal permit program may be eligible for partial approval if it meets all the procedural and legal Part 239 requirements (i.e., application components, enforcement, public participation, compliance monitoring) but does not meet all of the Part 239 technical requirements (e.g., requirements in 239.6) it program that are currently adequate and then revise the remainder of the program. A State/Tribal permit program may be eligible for partial approval if it meets all the procedural and legal Part 239 requirements (i.e., application components, enforcement, public participation, compliance monitoring) but does not meet all of the Part 239 technical requirements (e.g., requirements in 239.6). States/Tribes applying for partial approval also must include a schedule, agreed to by the State/ Tribe and the appropriate Regional Administrator, for completing the necessary changes to the laws, regulations, and/or guidance to comply with the remaining technical requirements. Part 239.11(a)(2) of today's proposal asserts that States/Tribes with partially approved permit programs are approved to implement only those portions of the technical requirements included in the partial approval. This means that any flexibility provided by the Subtitle D Federal revised criteria to approved States/Tribes is not available to owners/operators unless the partial program approval includes those technical provisions. EPA is proposing an expiration date for partial approvals in order to assure that States/Tribes will pursue full program approval in a timely manner. As such, the Agency views the partial approval process as a temporary measure to accelerate State/Tribal program approval. The Agency believes that providing two years is necessary, because the time required to make changes in laws, regulations, and/or guidance would differ on a case-by-case basis. Also, some State legislatures meet on a biennial basis, and two years would provide States/Tribes additional time to make required statutory changes. The Agency believes that allowing two years provides ample time for States/Tribes to execute the limited changes to their laws, regulations, and/or guidance necessary to achieve full program approval idance would differ on a case-by-case basis. Also, some State legislatures meet on a biennial basis, and two years would provide States/Tribes additional time to make required statutory changes. The Agency believes that allowing two years provides ample time for States/Tribes to execute the limited changes to their laws, regulations, and/or guidance necessary to achieve full program approval. However, the Agency believes it would be counterproductive to determine an entire program inadequate if a State/Tribe has cause to miss the two-year deadline by a few weeks or months. For this reason, the Agency is proposing to accommodate State/ Tribal program development by providing a mechanism to allow partial programs to extend beyond the two-year deadline if the State/Tribe can demonstrate cause to their EPA Region. States/Tribes that receive partial approval should submit an amended application meeting all requirements of Part 239 and have that application approved within two years of the effective date of the final determination for partial program adequacy. States/Tribes should be sensitive to this deadline and submit an amended and complete application well in advance to allow Regions ample time to provide opportunities for public participation, to make tentative and final adequacy determinations, and to publish these determinations in the Federal Register. If the State/Tribe can demonstrate that it has sufficient cause for not meeting the two-year deadline, the appropriate ve to this deadline and submit an amended and complete application well in advance to allow Regions ample time to provide opportunities for public participation, to make tentative and final adequacy determinations, and to publish these determinations in the Federal Register. If the State/Tribe can demonstrate that it has sufficient cause for not meeting the two-year deadline, the appropriate Regional Administrator may extend the expiration date of the partial approval. The Regional Administrator will publish the expiration date extension for the partial approval and a new date for expiration in the Federal Register. EPA believes that partial approvals of State/Tribal permit programs achieve the goals of avoiding disruption of existing State/Tribal permit programs, providing flexibility to owners/operators as soon as possible, and ensuring that owners/operators comply with the relevant technical criteria. While States/Tribes must have the authority to issue, monitor compliance with, and enforce permits adequate to ensure compliance with 40 CFR Part 258, the specific operating, design, ground-water monitoring, and corrective action requirements, as well as the location restrictions and the other requirements of the Part 258 Federal revised criteria, need not be contained in State/Tribal law or regulations. A State's/Tribe's guidance documents may be used to supplement laws and regulations. State/Tribal guidance may be used if the State/Tribe demonstrates in its legal certification that the guidance will be used to develop enforceable permits which will ensure compliance with 40 CFR Part 258. Also, guidance only may be used to supplement State/Tribal laws and regulations; it cannot correct laws and regulations that are inconsistent with the guidance ement laws and regulations. State/Tribal guidance may be used if the State/Tribe demonstrates in its legal certification that the guidance will be used to develop enforceable permits which will ensure compliance with 40 CFR Part 258. Also, guidance only may be used to supplement State/Tribal laws and regulations; it cannot correct laws and regulations that are inconsistent with the guidance. For example, if a State's/Tribe's laws or regulations required three inches of earthen material daily as a cover, the State/Tribe could not meet the daily cover requirement of 40 CFR Part 258.21 by issuing guidance that owner/operators apply six inches of earthen material at the end of each operating day. The narrative description of the State/Tribal program, discussed below in the section-by-section analysis of today's proposal, must explain how the State/Tribe will use guidance to develop enforceable permits. This option gives the States/Tribes added flexibility in meeting the requirements of Part 239, yet maintains the requirement that States/ Tribes have the authority to ensure MSWLF owner/operator compliance with Part 258. The flexibility afforded the States/Tribes should help limit the need to restructure existing State/Tribal laws/regulations. F. Differences From the Subtitle C Authorization Process Today's proposed approach for determining the adequacy of State/ Tribal permit programs under Sec. 4005(c) of Subtitle D of RCRA differs from the current approach taken for authorizing State hazardous waste programs under RCRA section 3006 of Subtitle C. These differences in approach reflect differences in the statutory framework of each Subtitle. Under Subtitle C, prior to authorization of a State program, EPA has primary responsibility for permitting of hazardous waste facilities. Federal law, including the issuance and enforcement of permits, applies until EPA authorizes a State to operate the State program in lieu of EPA operating the Federal program ces in approach reflect differences in the statutory framework of each Subtitle. Under Subtitle C, prior to authorization of a State program, EPA has primary responsibility for permitting of hazardous waste facilities. Federal law, including the issuance and enforcement of permits, applies until EPA authorizes a State to operate the State program in lieu of EPA operating the Federal program. Subtitle C requires authorized State programs to be at least equivalent to and consistent with the Federal program and other authorized State programs and to have requirements that are no less stringent than the Federal Subtitle C requirements. Once authorized, State programs operate in lieu of the Federal program and, if Federal enforcement of requirements is necessary, EPA must enforce the approved State's requirements. EPA retains enforcement authority under RCRA sections 3008, 3013, and 7003 although authorized States have primary enforcement responsibility. In contrast, under Subtitle D Congress intended facility permitting to be a State responsibility. Subtitle D does not specifically authorize EPA to issue Federal permits. EPA's current role includes establishing technical design and operating criteria for facilities, determining the adequacy of State/Tribal permit programs and enforcing compliance with the Subtitle D Federal revised criteria only after EPA determines that the State/Tribal permit program is inadequate. Subtitle D does not provide EPA with enforcement authority in States/Tribes pending an adequacy determination or in States/Tribes whose permit programs are deemed adequate by EPA. In addition, Subtitle D does not provide for State/Tribal requirements to operate ``in lieu of'' the Subtitle D Federal revised criteria. Therefore, the Subtitle D Federal revised criteria and State/Tribal requirements operate concurrently regardless of whether a State/Tribal permit program is deemed adequate or inadequate or in States/Tribes whose permit programs are deemed adequate by EPA. In addition, Subtitle D does not provide for State/Tribal requirements to operate ``in lieu of'' the Subtitle D Federal revised criteria. Therefore, the Subtitle D Federal revised criteria and State/Tribal requirements operate concurrently regardless of whether a State/Tribal permit program is deemed adequate or inadequate. Generally, the Subtitle D Federal revised criteria may be enforced through citizen suits against owners/operators under Section 7002 of RCRA even in approved States/Tribes. In addition, where a citizen brings a concern to EPA's attention, the Agency will respond in an appropriate manner on a case-by-case basis. In addition to the enforcement authority the Agency assumes upon determining that a State/ Tribal permit program is inadequate, EPA retains enforcement authority under RCRA Section 7003 to address situations that may pose an imminent and substantial endangerment to human health or the environment. In addition, EPA may also exercise enforcement authority under Section 104(e) of CERCLA in situations where there is a reasonable basis to believe there may be a release or threat of release of a hazardous substance, pollutant, or contaminant. G. Indian Lands EPA is extending to Indian Tribes the same opportunity to apply for permit program approval as is available to States. To date, EPA has approved one Tribal MSWLF permit program and proposed approval for a second Tribal program using the same review process used in the State approvals. The draft STIR was used as guidance in making these early proposals, and the Agency published a notice for each decision in the Federal Register that included much of the language found in today's proposed rule (final approval for the Campo Band of Mission Indians was published on May 1, 1995, 60 FR at 21191; tentative approval for the Cheyenne River Sioux Tribe was published on April 7, 1994, 59 FR at 16642) used as guidance in making these early proposals, and the Agency published a notice for each decision in the Federal Register that included much of the language found in today's proposed rule (final approval for the Campo Band of Mission Indians was published on May 1, 1995, 60 FR at 21191; tentative approval for the Cheyenne River Sioux Tribe was published on April 7, 1994, 59 FR at 16642). Providing Tribes with the opportunity to apply for approval of their MSWLF permit programs is consistent with EPA's Indian policy. This policy, formally adopted in 1984, recognizes Indian Tribes as the primary sovereign entities for regulating the reservation environment and commits the Agency to working with Tribes on a ``government-to- government'' basis to effectuate that recognition. A major goal of EPA's Indian Policy is to eliminate all statutory and regulatory barriers to Tribal implementation of Federal environmental programs. Today's proposal represents another facet of the Agency's continuing commitment to the implementation of this long-standing policy. In the spirit of Indian self-determination and the government-to- government relationship, EPA recognizes that not all Tribes will choose to exercise this option 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 solid waste management concerns. Under Section 4005, EPA may enforce 40 CFR Part 258 only after it determines that a State permit program is inadequate. However, Congress did not specifically address implementation of Subtitle D on Indian lands. e made, the Agency remains committed to providing technical assistance and training when possible to Tribal entities as they work to resolve their solid waste management concerns. Under Section 4005, EPA may enforce 40 CFR Part 258 only after it determines that a State permit program is inadequate. However, Congress did not specifically address implementation of Subtitle D on Indian lands. 1. Authority States generally are precluded from enforcing their civil regulatory programs on Indian lands, absent an explicit Congressional authorization. California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). Yet, under RCRA Subtitle D, EPA generally is precluded from enforcing the Federal revised criteria as well unless EPA determines that a State or Tribal permit program is inadequate to ensure compliance with the Federal revised criteria. Furthermore, Congress has not yet created an explicit role for Tribes to implement the Subtitle D program, as it has done under most other major environmental statutes amended since 1986 (Safe Drinking Water Act, CERCLA, Clean Water Act, Clean Air Act). There exist three principal approaches for effectively ensuring comprehensive, flexible, and efficient implementation of the Subtitle D Federal revised criteria on Indian lands: (1) Allow Tribes to demonstrate the existence of adequate Subtitle D permit programs in the same manner as States under today's proposed rule; (2) make determinations on a case-by-case basis on whether a Tribe or a State has adequate authority to ensure compliance with Subtitle D Federal revised criteria on Indian lands; or, (3) make a blanket determination as appropriate that States lack the authority to implement their programs on Indian lands, that there are no adequate permit programs in place on Indian lands, and that EPA may enforce Subtitle D Federal revised criteria directly on Indian lands in light of this determination y to ensure compliance with Subtitle D Federal revised criteria on Indian lands; or, (3) make a blanket determination as appropriate that States lack the authority to implement their programs on Indian lands, that there are no adequate permit programs in place on Indian lands, and that EPA may enforce Subtitle D Federal revised criteria directly on Indian lands in light of this determination. EPA prefers the first approach, under which an Indian Tribe may seek approval by demonstrating the existence of an adequate permit program in the same manner as a State pursuant to the procedures specified in today's proposal, including a demonstration of jurisdiction. Where no adequate permit program is demonstrated, EPA may enforce the Subtitle D Federal revised criteria directly upon determination that the Tribal program is not adequate to ensure compliance with the Subtitle D Federal revised criteria. Tribes that are seeking approval may opt to enter into a memoranda of agreement, or other agreement mechanisms, with another governmental entity (State, Tribe, or local government) to provide additional necessary expertise or resources to the Tribe. For example, a Tribe may arrange to use a ground-water monitoring expert the other governmental entity has on board, rather than hiring a Tribal ground-water monitoring expert. Even though a Tribe in this case would be relying in part on another governmental entity's expertise, as it would in any other contractor or agency relationship, the Tribe would seek approval of its program and would continue to exercise its permitting authority. This type of agreement must specify the relevant roles of each party to the agreement. The Tribe seeking approval would need to meet all other requirements outlined in this proposed rule and include copies of all relevant agreements in its application for program approval agency relationship, the Tribe would seek approval of its program and would continue to exercise its permitting authority. This type of agreement must specify the relevant roles of each party to the agreement. The Tribe seeking approval would need to meet all other requirements outlined in this proposed rule and include copies of all relevant agreements in its application for program approval. In the context of making adequacy determinations, EPA will review such agreements to assure that they will ensure compliance with 40 CFR Part 258. EPA recognizes, however, that there may be circumstances where a State seeks to assert jurisdiction in Indian Country. Where a State can demonstrate jurisdiction on Indian lands, the State seeking approval may propose, as part of its permit program approval application, to ensure compliance on Indian lands. However, the burden a State must meet to demonstrate its authority to regulate Subtitle D regulated facilities on Indian lands is a high one. See, e.g., 53 FR 43080 (October 25, 1988). EPA does not favor the third approach, because it requires EPA to step in to enforce the program without consideration of whether the Tribe can adequately do so. Under this approach, owners/operators of MSWLFs on Indian lands would not be able to obtain the flexibility and lower costs available in jurisdictions with approved permit programs. EPA believes that adequate authority exists under RCRA to allow Tribes to seek an adequacy determination for purposes of Sections 4005 and 4010. 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 A's interpretation of RCRA is governed by the principles of Chevron, USA v. NRDC, 467 U.S. 837 (1984). Where Congress has not explicitly stated its intent in adopting a statutory provision, the Agency charged with implementing that statute may adopt any interpretation which, in the Agency's expert judgment, is reasonable in light of the goals and purposes of the statute as a whole. Id. at 844. Interpreting RCRA to allow Tribes to apply for an adequacy determination satisfies the Chevron test. RCRA does not explicitly define a role for Tribes under Sections 4005 and 4010 and reflects an undeniable ambiguity in Congressional intent. Indeed, the only mention of 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 or solid waste management, or any Indian tribe or authorized tribal organization or Alaska Native village or organization[.] Id. (emphasis added). The term ``municipality'', in turn, is used in Sections 4003(c)(1)(C), 4008(a)(2), and 4009(a) of RCRA with reference to the availability of certain Federal funds and technical assistance for solid waste planning and management activities by municipalities. Section 4003(c)(1)(C) specifies that States are to use Subtitle D grant funds to, among others, assist municipalities in developing municipal waste programs; Sections 4008(a)(2) and 4008(d)(3) authorizes EPA to provide financial and technical assistance to municipalities on solid waste management; Section 4009(a) authorizes EPA to make grants to States to provide financial assistance to small municipalities. Thus, Congress apparently intended to make explicit that Indian Tribes could receive funds and assistance when available in the same manner as municipal governments 4008(d)(3) authorizes EPA to provide financial and technical assistance to municipalities on solid waste management; Section 4009(a) authorizes EPA to make grants to States to provide financial assistance to small municipalities. Thus, Congress apparently intended to make explicit that Indian Tribes could receive funds and assistance when available in the same manner as municipal governments. However, Congress did not explicitly recognize any other role for Tribes under other provisions. There is no accompanying legislative history which explains why 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 an adequacy determination under Subtitle D. 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. Cabazon, supra. Indian Tribes are sovereign governments. Worcester v. Georgia, 31 U.S. (10 Pet.) 515 (1832). There is no indication in the legislative history that Congress intended to abrogate any sovereign Tribal authority by defining them as ``municipalities'' under RCRA, i.e., that Congress intended Section 1004(13) to subject Indian Tribes to State law for RCRA purposes. Moreover, it is a well-established principle of statutory construction that Federal statutes which might arguably abridge Tribal powers of self-government must be construed narrowly in favor of retaining Tribal rights. F. Cohen, 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 might arguably abridge Tribal powers of self-government must be construed narrowly in favor of retaining Tribal rights. F. Cohen, Handbook of Federal Indian Law, 224 (1981); See, e.g., Ramah Navajo School Board v. Bureau of Revenue, 458 U.S. 832, 846 (1982). EPA believes that inclusion of Indian Tribes in Section 1004(13) was a definitional expedient, to avoid having to include the phrase ``and Indian tribes or tribal organizations or Alaska Native villages or organizations'' wherever the term ``municipality'' appeared, not to change the sovereign status of Tribes for RCRA purposes. In particular, the references in Sections 4003(c) and 4009(a) 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 from the structure of the 1984 Amendments. As mentioned earlier, Congress expressed a strong preference for a State lead in ensuring compliance with the Subtitle D Federal revised criteria, in that Section 4005(c) allows EPA to enforce the criteria only after a finding of inadequacy of the State permit program. Yet, the legislative history of the 1984 Amendments does not suggest that Congress intended to authorize States to implement such programs on Indian lands or that Congress considered the legal principle that States generally are precluded from such implementation. Cf. Washington Dept. of Ecology v. EPA, 752 F.2d 1465 (9th Cir ia only after a finding of inadequacy of the State permit program. Yet, the legislative history of the 1984 Amendments does not suggest that Congress intended to authorize States to implement such programs on Indian lands or that Congress considered the legal principle that States generally are precluded from such implementation. Cf. Washington Dept. of Ecology v. EPA, 752 F.2d 1465 (9th Cir. 1985) (RCRA Subtitle C does not constitute an explicit delegation of authority to States to implement hazardous waste programs on Indian lands); accord, Nance v. EPA, 745 F.2d 701 (9th Cir. 1981). Thus, Congress has otherwise put States in a primary role for Subtitle D permit programs, yet on Indian lands has failed to define how Tribes participate where States lack authority. EPA believes it necessary to harmonize the conflicts and resolve the ambiguities created by these provisions. EPA concludes that interpreting Sections 4005, 4008, and 4010 to allow Indian Tribes to seek an adequacy determination is reasonable.\2\ Several factors enter into this determination. First, as discussed in the previous paragraph, this approach is consistent with Subtitle D, because it preserves Congressional intent to limit the Federal government's role in Subtitle D permit programs. Absent the opportunity for Tribes to seek a determination of adequacy, there would be few or no adequate permit programs in place on Indian lands (because the State lacked the authority and the Tribe could not apply for program approval). his approach is consistent with Subtitle D, because it preserves Congressional intent to limit the Federal government's role in Subtitle D permit programs. Absent the opportunity for Tribes to seek a determination of adequacy, there would be few or no adequate permit programs in place on Indian lands (because the State lacked the authority and the Tribe could not apply for program approval). \2\ EPA notes that the arguments set forth below also may apply to other RCRA programs/statutory sections, including Section 3006 (EPA authorization of State hazardous waste programs), although there are unique considerations associated with each program. EPA currently is considering whether to allow Tribes to apply for authorization to implement other RCRA programs and will revisit the issue in future Federal Register notices. --------------------------------------------------------------------------- Failure to approve Tribal programs would deny Tribes the option available to approved States of granting their owners and operators flexibility in meeting the requirements of the Subtitle D Federal revised criteria. Under Part 258, the Federal revised criteria would be implemented without benefit of an EPA approved permit process and EPA would take enforcement actions as appropriate. With this proposal, however, Subtitle D regulated facilities on Indian Lands could be under the jurisdiction of the closest sovereign with permitting and enforcement authority, the Tribe, rather than the Federal government. In the case of other environmental statutes (e.g., the Clean Water Act), EPA has worked to revise them to define explicitly the role for Tribes under these programs. Yet, EPA also has stepped in on at least two occasions to allow Tribes to seek program approval despite the lack of an explicit Congressional mandate ting and enforcement authority, the Tribe, rather than the Federal government. In the case of other environmental statutes (e.g., the Clean Water Act), EPA has worked to revise them to define explicitly the role for Tribes under these programs. Yet, EPA also has stepped in on at least two occasions to allow Tribes to seek program approval despite the lack of an explicit Congressional mandate. Most recently, EPA recognized Indian Tribes as the appropriate authority under the Emergency Planning and Community Right-to-Know Act (EPCRA), despite silence on the Tribal role under EPCRA. 55 FR 30632 (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 on Indian lands. 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 Lands under the Prevention of Significant Deterioration (PSD) program of the Clean Air Act in the same manner that States could redesignate for other lands. See Nance v. EPA (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\ \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. --------------------------------------------------------------------------- ade no reference whatsoever to Indian Tribes or their status under the Act.\3\ \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. --------------------------------------------------------------------------- One Court already has recognized the reasonableness of EPA's actions in filling such regulatory gaps on Indian lands. 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 lands 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 on Indian Lands. Id. at 714. Today's proposal is analogous to the rule upheld in Nance. EPA is proposing to fill a gap in jurisdiction on Indian lands. As with the redesignation program, approving Tribal MSWLF permit programs ensures that the Federal government is not the entity exercising authority that Congress intended to be exercised at a more 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 on Indian Lands, including those of non-Indians, where the conduct directly threatens the health and safety of the Tribe or its members. Montana v. United States, 450 U.S. 544, 565 (1981) firmed EPA's authority to develop reasonable controlling interpretations of environmental statutes. Chevron, supra. Second, the Supreme Court emphasized since Nance that Indian Tribes may regulate activities on Indian Lands, including those of non-Indians, where the conduct directly threatens the health and safety of the Tribe or its members. Montana v. United States, 450 U.S. 544, 565 (1981). In the case of Subtitle D regulated facilities, EPA believes that improperly maintained facilities would not be protective of human health (including that of Tribal members) and the environment (including Indian lands). Tribes are likely to be able to assert regulatory authority over facilities on Indian lands to protect these interests. Allowing Tribes to seek adequacy would reflect general principles of Federal Indian law. Thus, as in Nance, EPA believes that allowing Tribes to apply for program approval reflects the sovereign authority of Tribes under Federal law. 2. Jurisdiction To have its Subtitle D permit program deemed adequate by EPA, a Tribe must have adequate authority over the regulated activities. Indian reservations include lands owned in fee by non-Indians. Pursuant to Montana v. U.S., 450 U.S. 544 (1981), Tribes have jurisdiction over Indian lands owned by Indians. However, the extent of Tribal authority to regulate activities by non-Indians on fee lands has been the subject of considerable discussion. The test for civil regulatory authority over non-member owned fee lands within Indian reservations was stated in Montana v. U.S., 450 U.S. 544, 565-66 (1981) (citations omitted): .S. 544 (1981), Tribes have jurisdiction over Indian lands owned by Indians. However, the extent of Tribal authority to regulate activities by non-Indians on fee lands has been the subject of considerable discussion. The test for civil regulatory authority over non-member owned fee lands within Indian reservations was stated in Montana v. U.S., 450 U.S. 544, 565-66 (1981) (citations omitted): To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate . . . the activities of non-members who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. . . . A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. In Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408 (1989), the Court applied this test. Both the State of Washington and the Yakima Nation asserted authority to zone non-Indian real estate developments on two parcels within the Yakima reservation, one in an area that was primarily Tribal, the other in an area where much of the land was owned in fee by nonmembers. Although the Court analyzed the issues and the appropriate interpretation of Montana at considerable length, the nine members split 4:2:3 in reaching the decision that the Tribe should have exclusive zoning authority over property in the Tribal area and the State should have exclusive zoning authority over non-Indian owned property in the fee area. Specifically, the Court recognized Tribal authority over activities that would threaten the health and welfare of the Tribe, 492 U.S. at 443-444 (Stevens, J., writing for the Court); id. at 449-450 (Blackmun, J the Tribe should have exclusive zoning authority over property in the Tribal area and the State should have exclusive zoning authority over non-Indian owned property in the fee area. Specifically, the Court recognized Tribal authority over activities that would threaten the health and welfare of the Tribe, 492 U.S. at 443-444 (Stevens, J., writing for the Court); id. at 449-450 (Blackmun, J. concurring). Conversely, the Court found no Tribal jurisdiction where the proposed activities ``would not threaten the Tribe's * * * health and welfare.'' Id. at 432 (White, J., writing for the Court). Given the lack of a majority rationale, the primary significance of Brendale is in its result, which was fully consistent with Montana v. United States. In evaluating whether a Tribe has authority to regulate a particular activity on land owned in fee by nonmembers but located within a reservation, EPA will examine the Tribe's authority in light of the evolving case law as reflected in Montana and Brendale and applicable Federal law. The extent of such Tribal authority depends on the effect of that activity on the Tribe. As discussed above, in the absence of a contrary statutory policy, a Tribe may regulate the activities of non-Indians on fee lands within its reservation when those activities threaten or have a direct effect on the political integrity, the economic security, or the health or welfare of the Tribe. Montana, 450 U.S. at 565-66. 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) 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. Thus, EPA will require that a Tribe seeking RCRA Subtitle D permit program approval demonstrate jurisdiction, i.e., make a showing that the potential impacts on the Tribe from solid 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 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 nonmembers will be determined case-by-case, based on factual, Tribal-specific findings. The determination as to whether the required effect is present in a particular case depends on the circumstances 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 nonmembers will be determined case-by-case, based on factual, Tribal-specific findings. The determination as to whether the required effect is present in a particular case depends on the circumstances. Nonetheless, the Agency also may take into account the provisions of environmental statutes and any legislative findings that the effects of the activity are serious 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 Ass'n v. DeBenedictis, 480 U.S. 470, 476-77 and nn.6, 7 (1987). The Agency also may rely on its special expertise and practical experience regarding the importance of proper solid waste management 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. The Agency believes that Congressional enactment of RCRA establishes a strong Federal interest in effective management of solid waste. For example, Congress has stated that ``the disposal of solid waste * * * in or on the land without careful planning and management can present a danger to human health and the environment'' and that unsound solid waste disposal practices ``have created greater amounts of air and water pollution and other problems for the environment and health.'' RCRA Sec. 1002(b)(2), (3), 42 U.S.C. 6901(b) (2), (3) ple, Congress has stated that ``the disposal of solid waste * * * in or on the land without careful planning and management can present a danger to human health and the environment'' and that unsound solid waste disposal practices ``have created greater amounts of air and water pollution and other problems for the environment and health.'' RCRA Sec. 1002(b)(2), (3), 42 U.S.C. 6901(b) (2), (3). Congress recognized that potential hazards from mismanagement of solid waste disposal facilities include ``fire hazards; air pollution (including reduced visibility); explosive gas migration; surface and ground-water contamination; disease transfer (via vectors such as rats and flies); personal injury (to unauthorized scavengers); and, aesthetic blight.'' House Report to accompany H.R. 14496, September 9, 1976 at 37. EPA has confirmed these Congressional observations.4 \4\ See, e.g., USEPA, OSW, Case Studies on Ground-Water and Surface Water Contamination from Municipal Solid Waste Landfills-- Criteria for Solid Waste Landfills (40 CFR Part 258) Subtitle D of RCRA, July 1988, EPA//530-SW-88-040; USEPA, OSW, Operating Criteria (Subpart C)--Criteria for Solid Waste Landfills (400 CFR Part 258) Subtitle D of RCRA, July 1988, EPA/530-SW-88-037. --------------------------------------------------------------------------- EPA notes that, where solid waste affects ground water which has pathways that allow it to migrate readily, it would be practically very difficult to separate out the effects of solid waste disposal on non- Indian fee land within a reservation from those on Tribal portions. In addition, EPA notes that many of the environmental problems caused by mismanagement of solid waste (e.g., ground-water PA notes that, where solid waste affects ground water which has pathways that allow it to migrate readily, it would be practically very difficult to separate out the effects of solid waste disposal on non- Indian fee land within a reservation from those on Tribal portions. In addition, EPA notes that many of the environmental problems caused by mismanagement of solid waste (e.g., ground-water contamination or the contamination of surface water through uncontrolled run-off) by their nature present potential direct impacts that are serious and substantial in areas that are outside the place where the solid waste activity originally occurred. In other words, any environmental impairment that occurs on, or as a result of, solid waste activities by non-members on fee lands within the reservation is 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 solid 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 solid waste under RCRA he Agency also believes that the effects on Tribal health and welfare necessary to support Tribal regulation of non-Indian activities on Indian lands may be easier to establish in the context of environmental regulation than with regard to zoning, which was at issue in Brendale. There is a significant distinction between land use planning and environmental regulation of solid waste under RCRA. The Supreme Court has explicitly recognized such a distinction: ``Land use planning in essence chooses particular uses for the land; environmental regulation * * * does not mandate particular uses of the land but requires only that, however the land is used, damage to the environment is kept within prescribed limits.'' California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 587 (1987). The Court has relied on this distinction to support a finding that States retain authority to carry out environmental regulation even in cases where their ability to carry out general land use regulation is preempted by federal law. Id. at 587-589. Further, management of solid waste serves the purpose of protecting public health and safety, which is a core governmental function, whose exercise is critical to self-government. The special status of governmental actions to protect public health and safety is well established.5 By contrast, the power to zone can be exercised to achieve purposes which have little or no direct nexus to public health and safety. See, e.g., Brendale, 492 U.S. at 420 n.5 (White, J.) (listing broad range of consequences of state zoning decision). Moreover, solid waste may affect ground water, which is mobile, freely migrating from one local jurisdiction to another, sometimes over large distances. By contrast, zoning regulates the uses of particular properties with impacts that are much more likely to be contained within a given local jurisdiction. at 420 n.5 (White, J.) (listing broad range of consequences of state zoning decision). Moreover, solid waste may affect ground water, which is mobile, freely migrating from one local jurisdiction to another, sometimes over large distances. By contrast, zoning regulates the uses of particular properties with impacts that are much more likely to be contained within a given local jurisdiction. \5\ 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 (section 239.5(c)) explaining the legal basis for the Tribe's regulatory authority. However, EPA also will rely on its generalized findings regarding the relationship of solid 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 D engaged in by non-members on fee lands within the territory for which the Tribe is seeking approval, and that the Tribe or Tribal members could be subject to exposure to solid waste from such activities through, e.g., ground water, surface water, soil, and/or direct contact. The Tribe must explicitly assert jurisdiction, i.e., make a showing that improper management of solid 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 embers could be subject to exposure to solid waste from such activities through, e.g., ground water, surface water, soil, and/or direct contact. The Tribe must explicitly assert jurisdiction, i.e., make a showing that improper management of solid 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 solid 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 various jurisdictions, it is imperative that all affected sovereigns work cooperatively for environmental protection. 3. Permit Program Approval EPA wishes to emphasize that Tribes are not required to seek approval of their Subtitle D permit programs. Today's proposed rule states that a Tribe may, by submitting an application for EPA review, seek approval of its permit program. If the Tribe does not wish to seek adequacy, it simply need not submit an application for that purpose. This is in contrast to the requirement of Section 4005(c)(1)(B), which requires States to adopt and implement adequate permit programs Subtitle D permit programs. Today's proposed rule states that a Tribe may, by submitting an application for EPA review, seek approval of its permit program. If the Tribe does not wish to seek adequacy, it simply need not submit an application for that purpose. This is in contrast to the requirement of Section 4005(c)(1)(B), which requires States to adopt and implement adequate permit programs. EPA does not believe it should impose a mandatory duty on Tribes to adopt and implement permit programs simply because some Tribes may seek and receive a determination of adequacy. Given that Congress has not explicitly defined the Tribal role under Subtitle D, EPA doubts that Congress intended to impose a mandatory duty on all Tribes. The decision of whether or not to seek approval is an individual Tribal determination based upon a number of factors such as whether the flexibility available to approved programs offers the Tribe any advantage and whether the Tribe has the infrastructure and resources to apply for and administer such a program. Generally, Tribes that opt to seek program approval must meet the same approval criteria EPA requires States to meet. Today's proposal recognizes the uniqueness of Tribes and Indian lands, however, and includes appropriate requirements in certain sections of the proposed rule. For example, due to the lack of clarity of Tribal boundaries (or lands over which the Tribe asserts jurisdiction) in some cases, the proposed rule requires Tribes to include a map or legal description of these lands. A more detailed explanation of the requirements Tribes must meet to be deemed adequate by EPA follows. Under the Clean Water Act, Safe Drinking Water Act, CERCLA, and the Clean Air Act, Congress has specified certain criteria by which EPA is to determine whether Tribes should be allowed to seek program approval roposed rule requires Tribes to include a map or legal description of these lands. A more detailed explanation of the requirements Tribes must meet to be deemed adequate by EPA follows. Under the Clean Water Act, Safe Drinking Water Act, CERCLA, and the Clean Air Act, Congress has specified certain criteria by which EPA is to determine whether Tribes should be allowed to seek program approval. These criteria generally require that: (1) The Tribe be recognized by the Secretary of the Interior; (2) the Tribe has an existing government exercising substantial governmental duties and powers; (3) the Tribe has adequate civil regulatory jurisdiction over the subject matter and entities to be regulated; and (4) the Tribe is reasonably expected to be capable of administering the federal environmental program. Today's proposal recognizes the importance and fully agrees with the substance of these criteria. Therefore, EPA has integrated the four criteria used in other statutes into today's proposed State/Tribal Implementation Rule and has not established a pre-approval process for Indian Tribes. Under proposed Section 239.4(g), a Tribe seeking approval of its permit program would address three of the above criteria in its Narrative Description. As proposed in Section 239.5(c), the Tribe would address the fourth criterion, adequacy of civil regulatory jurisdiction, in its Legal Certification. The process EPA is proposing for Tribes to make this showing 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 D Programs parallels the simplification rule owing 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 D Programs parallels the simplification rule. Generally, the fact that a Tribe has met the recognition or governmental function requirements 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 the Tribe meets those requirements for purpose of RCRA Subtitle D permit program approval. To facilitate review of Tribal applications, EPA therefore requests that the Tribe, in responding to proposed Section 239.4(g), demonstrate that it has been approved for ``TAS'' (under the old ``TAS'' process) or has been deemed eligible to receive authorization (under the simplified process) for any other program. If a Tribe has not received ``TAS'' approval or has not been deemed eligible to receive authorization for any other program, the Tribe must demonstrate, pursuant to proposed Section 239.4(g), that it meets the recognition and governmental function criteria described above. Discussion on how to make these showings can be found at 59 FR 64339 (December 14, 1994). Section 239.2 of today's proposal defines Tribes to mean any Indian Tribe, band, nation, or other organized group or community which is recognized by the Secretary of the Interior or Congress and which exercises substantial governmental duties and powers. While the definition of Tribes in today's proposal does not explicitly include Alaska Native Villages, Alaska Native entities (e.g., villages) may apply for permit program approval Tribes to mean any Indian Tribe, band, nation, or other organized group or community which is recognized by the Secretary of the Interior or Congress and which exercises substantial governmental duties and powers. While the definition of Tribes in today's proposal does not explicitly include Alaska Native Villages, Alaska Native entities (e.g., villages) may apply for permit program approval. Alaska Native Villages that are Federally-recognized Tribes should not be excluded per se from seeking EPA program approval, although EPA does not mean to imply that it has determined that any village possesses the adequate civil regulatory authority to operate a permit program. Rather, such a determination would be made on a case-by-case basis. Alaska Native Villages that demonstrate that their permit programs meet the jurisdictional capacity and other requirements of today's proposal will be deemed adequate. EPA believes 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 permit program. Thus, today's proposal requires, under proposed Section 239.5(c), that a Tribe seeking program approval provide an analysis of jurisdictional authorities in the Tribal Legal Certification. The legal certification must include a map or legal description of the lands over which the Tribe asserts jurisdiction and documents supporting the Tribe's assertion of jurisdiction. In addition, as noted above, if the Tribe is asserting jurisdiction over solid 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 solid waste could have direct effects on the health and welfare of the Tribe that are serious and substantial. Finally, capability is a determination that will be made on a case- by-case basis ction over solid 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 solid waste could have direct effects on the health and welfare of the Tribe that are serious and substantial. 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 D permit program approval submitted by any applicant, Tribal or State, will be sufficient. For example, today's proposal requires both States and Tribes to discuss the staff resources available to carry out the program. Section 239.3 requires that States/ Tribes list the number of Subtitle D regulated facilities under their jurisdiction and discuss staff resources available to carry out and enforce the program. However, EPA may request, in individual cases, that a Tribe provide additional narrative 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). 4. Financial Assurance for Tribally owned MSWLFs Part 258 exempts States that are MSWLF owner/operators from the financial assurance requirements contained in 40 CFR Part Section 258.74. While today's proposal extends to Tribes the same opportunity to apply for permit program approval as it does to States, EPA has no basis for believing that Indian Tribes are exactly like States in terms of their financial capabilities. Thus, EPA is proposing that the financial assurance requirement contained in 40 CFR Sec. 258.74 remain applicable to Tribes. EPA considered, during the development of 40 CFR Part 258, whether to exempt Tribes from financial responsibility requirements and whether Tribes have the requisite financial strength and incentives to cover the costs of closure, post-closure care, and corrective action for known releases g that the financial assurance requirement contained in 40 CFR Sec. 258.74 remain applicable to Tribes. EPA considered, during the development of 40 CFR Part 258, whether to exempt Tribes from financial responsibility requirements and whether Tribes have the requisite financial strength and incentives to cover the costs of closure, post-closure care, and corrective action for known releases. The Agency found that, due to the variation among Tribes in terms of size, financial capacity, and function performed, exempting all Tribes from the requirements would provide insufficient protection of human health and the environment. Requiring all Tribes to demonstrate financial assurance should encourage appropriate advanced planning for the costs of closure, post-closure care, and corrective action for known releases by these entities. See 56 FR 51106-07 (October 9, 1991). The Agency does not believe that the financial assurance requirements generally will be burdensome to Tribes due to the relatively small part of the total cost of compliance with today's proposal imposed by the financial assurance requirements. Mechanisms that could be used to make this demonstration, such as trust funds, surety bonds, and letters of credit, are discussed in 40 CFR Part 258.74. The Agency is developing a special financial test for local governments that also may be utilized by Tribes (proposed on December 27, 1993, 58 FR at 68353). Financially strong Tribes, like financially strong municipalities, will be able to comply with the requirement using the local government financial test. EPA intends to issue the financial assurance test for local governments in October 1995, well before the effective date of the financial assurance requirement (April 9, 1997). EPA solicits comment on whether today's proposal incorporates the appropriate criteria and procedures in general for determining whether a Tribe's permit program should be deemed adequate by EPA. EPA also ancial test. EPA intends to issue the financial assurance test for local governments in October 1995, well before the effective date of the financial assurance requirement (April 9, 1997). EPA solicits comment on whether today's proposal incorporates the appropriate criteria and procedures in general for determining whether a Tribe's permit program should be deemed adequate by EPA. EPA also invites comment on appropriate terms for Tribal positions equivalent to State positions, such as Governor, Attorney General, Agency, and Director. H. Enforcement Approved States/Tribes have primary responsibility for ensuring compliance with the Subtitle D Federal revised criteria through the enforcement element of their permit programs. Because RCRA does not give EPA the authority to take enforcement actions in approved States/ Tribes, adequate State/Tribal enforcement authorities are crucial to ensuring compliance. Under RCRA 4005(c)(2)(A), the Agency has the authority to enforce the Subtitle D Federal revised criteria where it determines the State/Tribal permit program to be inadequate. Independent of any governmental enforcement program, citizens may seek enforcement of the Subtitle D Federal revised criteria by means of citizen suits against owners/operators under Section 7002 of RCRA. Section 7002 provides that any person may commence a civil action on his or her own behalf against any person who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to RCRA. The self-implementing Subtitle D Federal revised criteria constitute the basis for enforcement actions through potential citizen suits against facilities that fail to comply. In addition, where a citizen brings a concern to EPA's attention, the Agency will respond in an appropriate manner on a case-by-case basis requirement, prohibition, or order which has become effective pursuant to RCRA. The self-implementing Subtitle D Federal revised criteria constitute the basis for enforcement actions through potential citizen suits against facilities that fail to comply. In addition, where a citizen brings a concern to EPA's attention, the Agency will respond in an appropriate manner on a case-by-case basis. In addition to the enforcement authority the Agency assumes upon determining that a State/Tribal permit program is inadequate, EPA retains enforcement authority under RCRA Section 7003 to address situations that may pose an imminent and substantial endangerment to human health or the environment. In addition, EPA may also exercise enforcement authority under Section 104(e) of CERCLA in situations where there is a reasonable basis to believe there may be a release or threat of release of a hazardous substance, pollutant, or contaminant. Unlike Subtitles C and I of RCRA, the statute does not provide that State programs deemed adequate by EPA operate in lieu of the Federal program. Absent such a statutory provision, the Subtitle D Federal revised criteria are applicable to all Subtitle D regulated facilities, regardless of whether EPA has approved the State/Tribal permit program. Violation of the Subtitle D Federal revised criteria may subject the violator to a citizen suit in Federal court. In the event of a citizen suit against an owner/operator permitted by an approved State/Tribe, however, EPA expects the owner/operator who complies with the requirements of an approved State's/Tribe's permit program will be found by Federal courts to have complied with the requirements in the Subtitle D Federal revised criteria. EPA expects this result because EPA will have reviewed and explicitly approved the State's/Tribe's design or performance standard approach as ensuring compliance with the Subtitle D Federal revised criteria lies with the requirements of an approved State's/Tribe's permit program will be found by Federal courts to have complied with the requirements in the Subtitle D Federal revised criteria. EPA expects this result because EPA will have reviewed and explicitly approved the State's/Tribe's design or performance standard approach as ensuring compliance with the Subtitle D Federal revised criteria. This citizen suit authority under RCRA is an important addition to State/Tribal and Federal enforcement which EPA believes will help ensure compliance with Subtitle D Federal revised criteria. For example, the citizen suit authority provides an incentive for owners and operators to comply with the Subtitle D Federal revised criteria. In addition, citizens may bring action against a State (to the extent permitted by the eleventh amendment to the Constitution) for failure to develop and implement an adequate permit program as required by RCRA Section 4005(c)(1)(B). (Such suits would not be appropriate against Indian Tribes, who are not specifically required to comply with RCRA Section 4005.) III. Section-by-Section Analysis of 40 CFR Part 239 The following sections of this preamble include discussions of the major issues and present the rationale for the specific regulations being proposed today. The preamble is organized in a section-by-section sequence for ease of reference. A. Purpose and Scope (Subpart A, Secs. 239.1 and 239.2) y required to comply with RCRA Section 4005.) III. Section-by-Section Analysis of 40 CFR Part 239 The following sections of this preamble include discussions of the major issues and present the rationale for the specific regulations being proposed today. The preamble is organized in a section-by-section sequence for ease of reference. A. Purpose and Scope (Subpart A, Secs. 239.1 and 239.2) Sections 239.1 and 239.2 outline the purpose and scope of today's proposal and provide definitions of key terms used in the requirements. Today's proposal specifies the requirements that State/Tribal permit programs must meet to be determined adequate to ensure that Subtitle D facilities regulated under RCRA section 4010(c) comply with the Subtitle D Federal revised criteria. The proposed rule also sets forth the procedures EPA will follow in determining the adequacy of State/ Tribal permit programs. Nothing in today's proposal precludes States/ Tribes from requiring more stringent levels of protection than those required by the Subtitle D Federal revised criteria. The definitions proposed in Sec. 239.2 are consistent with definitions in other RCRA regulations where appropriate. For this Part, the Agency defines ``permit'' to include other systems of prior approval and conditions (e.g., licenses). The Agency is proposing this definition to be consistent with RCRA Sec. 4005(c) which requires States to ``adopt and implement a permit program or other system of prior approval and conditions'' and to accommodate existing State/Tribal programs that function as ``permit'' programs but are not so designated. B. Components of a Permit Program Application (Subpart B, Secs. 239.3- 239.5) censes). The Agency is proposing this definition to be consistent with RCRA Sec. 4005(c) which requires States to ``adopt and implement a permit program or other system of prior approval and conditions'' and to accommodate existing State/Tribal programs that function as ``permit'' programs but are not so designated. B. Components of a Permit Program Application (Subpart B, Secs. 239.3- 239.5) 1. State/Tribal Permit Program Application (Sec. 239.3) Section 239.3 of today's proposed rule identifies the components that the State/Tribe must include in its program application to obtain an adequacy determination under this Part. Under the proposed rule, a State/Tribe must submit an application containing the following: (1) A transmittal letter requesting permit program approval, (2) a description of the State/Tribal permit program, (3) a written legal certification demonstrating that the State/Tribal authorities cited in the permit program application are fully enacted and effective, (4) copies of all applicable State/Tribal laws, regulations and guidance that the State/Tribe will use to ensure that Subtitle D regulated facilities comply with the Subtitle D Federal revised criteria, and (5) copies of any Tribal-State agreements if a Tribe and State have negotiated agreements for the implementation of the Subtitle D permit program on Indian lands. Copies of all applicable State/Tribal laws, regulations, and guidance or other policy documents submitted with the State's/Tribe's application will be used by EPA to evaluate the adequacy of a State/Tribal program's scope and technical requirements. A transmittal letter signed by the State/Tribal Director must accompany the official State/Tribal application D permit program on Indian lands. Copies of all applicable State/Tribal laws, regulations, and guidance or other policy documents submitted with the State's/Tribe's application will be used by EPA to evaluate the adequacy of a State/Tribal program's scope and technical requirements. A transmittal letter signed by the State/Tribal Director must accompany the official State/Tribal application. If more than one State/Tribal agency has implementation responsibilities, the transmittal letter must designate a lead agency and be jointly signed by all State/Tribal agencies with implementation responsibilities or by the State Governor/Tribal authority exercising powers substantially similar to those of a State Governor. This letter is the State's/ Tribe's formal request for determination of adequacy. The designation of a lead agency will provide EPA with a single point of contact in the State/Tribe and will facilitate communication between EPA and the State/Tribe. Under today's proposal, EPA only will approve adequate programs with jurisdiction throughout a State/Tribe. Independent sub-State or sub-Tribal agencies that do not have jurisdiction throughout the State/Tribe are not eligible for adequacy determinations but can have implementation roles as outlined in the next section. 2. Narrative Description of a State/Tribal Program (Sec. 239.4) Under proposed Sec. 239.4, any State/Tribe that seeks approval for its Subtitle D permit program must submit a narrative description of the State/Tribal permit program as part of its application. The narrative description provides an overview of the State/Tribal permit program and demonstrates how the program meets the statutory requirement to ensure that owners/operators comply with the Subtitle D Federal revised criteria under RCRA section 4010(c) val for its Subtitle D permit program must submit a narrative description of the State/Tribal permit program as part of its application. The narrative description provides an overview of the State/Tribal permit program and demonstrates how the program meets the statutory requirement to ensure that owners/operators comply with the Subtitle D Federal revised criteria under RCRA section 4010(c). The narrative must demonstrate that the State/Tribal program ensures the protection of human health and the environment through the implementation of permit standards that ensure compliance with the Subtitle D Federal revised criteria. The narrative description is the component of the application wherein the State/Tribe describes how its permit program satisfies the requirements of Subpart C of today's proposed rule. The specific elements of the program narrative which must be included in a State's/ Tribe's application and are being proposed today are listed in Sec. 239.4 and are described briefly below. The narrative must include a discussion of the jurisdiction and responsibilities of all State/ Tribal and local agencies implementing the permit program. The narrative also must provide a description of State/Tribal procedures for permitting, compliance monitoring, and enforcement as specified in Secs. 239.6 through 239.9 of today's proposal and any applicable State- Tribal agreements. Many State, Tribal, and local agencies have begun to address the Subtitle D Federal revised criteria, and the Agency does not wish to disrupt these on-going efforts. The nature of the problem and the work involved in implementing the regulatory program dictate that the actual day-to-day work take place at the State, Tribal, and local levels. Therefore, today's proposal does not require implementation only by State/Tribal agencies with State/Tribal-wide jurisdiction and authorities criteria, and the Agency does not wish to disrupt these on-going efforts. The nature of the problem and the work involved in implementing the regulatory program dictate that the actual day-to-day work take place at the State, Tribal, and local levels. Therefore, today's proposal does not require implementation only by State/Tribal agencies with State/Tribal-wide jurisdiction and authorities. Rather, EPA is allowing sub-State/Tribal agencies an implementation role where lead State/Tribal agencies demonstrate in the application for permit program approval that the local agencies will ensure compliance and will operate under State/Tribal-wide authorities. The Agency encourages States/Tribes to work closely with local implementing agencies and provide oversight so that problems, such as local conflicts of interest, are prevented. The program narrative also must provide a discussion of how the State's/Tribe's permit program will provide for the permitting of new and existing Subtitle D regulated facilities to ensure compliance with the Subtitle D Federal revised criteria. Under today's proposal, new Subtitle D regulated facilities must have permits prior to construction and operation. States/Tribes may meet this requirement with a multi- stage permitting process (e.g., issuing a permit to construct and a separate permit to operate) if all requirements relevant to each stage are incorporated into the permit for that stage and if new Subtitle D regulated facilities have permits incorporating all the requirements of the Subtitle D Federal revised criteria before operating. If a State/ Tribe uses a multi-stage permitting process it must ensure that the public participation elements of today's proposal in Sec. 239.6(a) and Sec. 239.6(b) are met during each stage tage are incorporated into the permit for that stage and if new Subtitle D regulated facilities have permits incorporating all the requirements of the Subtitle D Federal revised criteria before operating. If a State/ Tribe uses a multi-stage permitting process it must ensure that the public participation elements of today's proposal in Sec. 239.6(a) and Sec. 239.6(b) are met during each stage. Strategies for ensuring that existing Subtitle D regulated facilities are permitted to ensure compliance are likely to vary depending on the composition of the regulated community in a State/ Tribe and on whether the State/Tribe has a pre-existing permit program. Among the strategies a State/Tribe may wish to consider are: (1) Putting existing facilities on a schedule to receive a permit where no permits have yet been issued; (2) scheduling review of existing permits; (3) scheduling closure of existing facilities that are unlikely to come into compliance with new requirements; or (4) a combination of these approaches. Regardless of which strategy is selected, eventually all facilities in approved States/Tribes must receive permits that ensure compliance with the Subtitle D Federal revised criteria or they must close. The total number of regulated facilities within the State/Tribal jurisdiction must be indicated in the narrative. EPA believes that information pertaining to the number of facilities within the State/ Tribal jurisdiction will be useful in assessing whether the State's/ Tribe's available resources are adequate to ensure compliance. As explained below, however, resource information is not likely to be a central factor in the determination of State/Tribal permit program adequacy. Finally, the program narrative must address the staff resources that the State/Tribe has available to carry out its program risdiction will be useful in assessing whether the State's/ Tribe's available resources are adequate to ensure compliance. As explained below, however, resource information is not likely to be a central factor in the determination of State/Tribal permit program adequacy. Finally, the program narrative must address the staff resources that the State/Tribe has available to carry out its program. The Agency has not proposed specific resource and staffing requirements for approved programs due to the site-specific nature of ensuring compliance with the Subtitle D Federal revised criteria. Each State/ Tribe will have different resource requirements and strategies for ensuring compliance. The Agency intends to allow States/Tribes flexibility in determining the best use of their resources. Such information is not likely to be a central factor in the determination of State/Tribal permit program adequacy. However, EPA intends that, in certain cases (e.g., where EPA determines that State/Tribal resources clearly are insufficient), this information may be used to make a determination of inadequacy. The resource estimates will not be judged with any upper or lower bounds for approval or disapproval, yet EPA wants to ensure that funding and staffing exist. 2.a. MSWLF Permit Program Approval The total number of MSWLFs within the State/Tribal jurisdiction that received municipal solid waste on or after October 9, 1991, must be indicated in the narrative. The October 9, 1991, date was chosen, because MSWLFs receiving waste after this date must, at a minimum, comply with the final cover requirements in 40 CFR Part 258.60(a)(2). The MSWLFs included in this number are those units which may receive hazardous household waste or conditionally exempt small quantity generator hazardous waste. Land application units, surface impoundments, injection wells, or waste piles, as those terms are defined under Part 257.2, do not have to be addressed in the narrative for approval of MSWLF permit programs. 3 CFR Part 258.60(a)(2). The MSWLFs included in this number are those units which may receive hazardous household waste or conditionally exempt small quantity generator hazardous waste. Land application units, surface impoundments, injection wells, or waste piles, as those terms are defined under Part 257.2, do not have to be addressed in the narrative for approval of MSWLF permit programs. 3. State/Tribal Legal Certification (Sec. 239.5) Section 239.5 of the proposed rule would require any State/Tribe that seeks a determination of adequacy to submit a written statement from the State/Tribal Attorney General certifying that the laws, regulations, and guidance cited in the State's/Tribe's permit program application are fully enacted and fully effective when the State/Tribal permit program is approved. The State/Tribal legal certification serves as the foundation for ensuring that the State/Tribal permit program has adequate authority to ensure compliance with the Subtitle D Federal revised criteria and to meet the requirements of this rule. If guidance is to be used to supplement statutes and regulations, the State/Tribal legal certification must state that the State/Tribe has the authority to use guidance to develop enforceable permits which will ensure compliance with the Subtitle D Federal revised criteria and that the guidance was duly issued in accordance with State/Tribal law. Guidance only may be used to supplement State/Tribal laws and regulations; it cannot correct laws and regulations that are inconsistent with the Subtitle D Federal revised criteria. The narrative description of the State/Tribal program must explain how the State/Tribe will use guidance to develop enforceable permits. The Agency emphasizes that guidance is not a substitute for regulations and statutes and that the applicant must have the necessary authorities to ensure compliance with the Subtitle D Federal revised criteria t with the Subtitle D Federal revised criteria. The narrative description of the State/Tribal program must explain how the State/Tribe will use guidance to develop enforceable permits. The Agency emphasizes that guidance is not a substitute for regulations and statutes and that the applicant must have the necessary authorities to ensure compliance with the Subtitle D Federal revised criteria. This certification may be signed by the independent legal counsel for the State/Tribe, rather than the Attorney General or equivalent Tribal official, provided that such counsel has full authority to represent independently the lead State/Tribal Agency in court on all matters pertaining to the State/Tribal program. Applicants seeking approval of permit programs on Indian lands also must include in the legal certification an analysis of the applicant's authority to regulate all facilities covered by the relevant Subtitle D Federal revised criteria on Indian lands. The applicant shall include: a map or legal description of the Indian lands over which the applicant asserts jurisdiction and a copy of all documents such as constitutions, by-laws, charters, executive orders, codes, ordinances, and/or resolutions which support the applicant's assertions of authority. States asserting jurisdiction over Indian lands also must submit the same information, as well as copies of applicable State-Tribal agreements. To facilitate greater flexibility in the approval process, the Agency intends to allow legal certifications that cite statutes, rules, or guidance that are still in the legislative or rulemaking process and are not yet fully enacted or fully effective. The Agency will make tentative determinations of adequacy based on these types of legal certifications but will request copies of the revised laws and regulations and a revised legal certification stating all laws and regulations are fully enacted and fully effective prior to any final adequacy determination by EPA ative or rulemaking process and are not yet fully enacted or fully effective. The Agency will make tentative determinations of adequacy based on these types of legal certifications but will request copies of the revised laws and regulations and a revised legal certification stating all laws and regulations are fully enacted and fully effective prior to any final adequacy determination by EPA. It may occur that the statutes, regulations, or guidance originally submitted with the application are modified so that they no longer ensure compliance with the Subtitle D Federal revised criteria. Should this happen, the Regional Administrator will publish a new tentative adequacy determination in the Federal Register to provide for adequate public participation, including an opportunity for the public to provide comments. C. Requirements for Adequate Permit Programs (Subpart C, Sec. 239.6- 239.9) Under Sec. 239.6-239.9 the Agency is proposing requirements for State/Tribal permit programs to ensure that all new and existing Subtitle D facilities which are subject to regulation under RCRA section 4010(c) have a permit and comply with the Subtitle D Federal revised criteria. Strategies for permitting existing facilities are discussed in section B.2 above. Section 239.6 of the proposed rule requires States/Tribes to have legal authority to require permits ensuring compliance with the Subtitle D Federal revised criteria. A State/Tribe must have adequate authority to collect all information it needs to issue permits that implement the technical requirements. Sections 239.7 through 239.9 of the proposed rule outline the minimum components of an adequate compliance monitoring and enforcement program to ensure compliance with the Subtitle D Federal revised criteria. In general, the proposed rule requires that States/Tribes have the authority to effectively ensure and enforce ongoing compliance with their approved State/Tribal permit requirements s. Sections 239.7 through 239.9 of the proposed rule outline the minimum components of an adequate compliance monitoring and enforcement program to ensure compliance with the Subtitle D Federal revised criteria. In general, the proposed rule requires that States/Tribes have the authority to effectively ensure and enforce ongoing compliance with their approved State/Tribal permit requirements. These sections describe the general legal and procedural program elements that are necessary: compliance monitoring authorities, enforcement authorities, and provisions for public intervention in civil enforcement proceedings. The rule does not prescribe specific permitting procedures or enforcement and compliance monitoring activity levels or tasks. In proposing these requirements, EPA is emphasizing elements of basic authority, rather than detailed programmatic elements. This emphasis allows sufficient State/Tribal flexibility while requiring that the approved State/Tribal programs have adequate authorities and procedures that will allow them to take action as needed to ensure compliance with the technical requirements. A detailed discussion of the permitting, compliance, and enforcement provisions of today's proposal follows. 1. Permitting Requirements (Sec. 239.6) The Agency recognizes public involvement in permit decisions as an essential component of an effective permit program. In light of the recognized importance of public participation, EPA is requiring that the permit application process must provide for public review of and input to permit documents containing the applicable site-specific design and operating conditions and must provide for consideration of comments received and notification to the public of the final permit decision. The Agency believes that it is essential for an effective permit program to provide opportunities for public involvement in permit decisions made after the initial permit issuance (e.g., permit modifications) aining the applicable site-specific design and operating conditions and must provide for consideration of comments received and notification to the public of the final permit decision. The Agency believes that it is essential for an effective permit program to provide opportunities for public involvement in permit decisions made after the initial permit issuance (e.g., permit modifications). States/Tribes must provide a full description of their public participation procedures, including procedures for permit actions after initial permit issuance, in the narrative and include a copy of the procedures in the permit program application. The public participation requirements are intended to ensure that approved permit programs avail the public of needed information and the opportunity to provide input on decisions affecting the management of regulated Subtitle D facilities located in their community. Although EPA is not proposing prescriptive public participation requirements, EPA expects the States/Tribes to have comprehensive and effective procedures for public involvement in key permitting decisions, in accordance with RCRA Section 7004(b)(1). The Agency believes that it is particularly important to provide for review and comment (including the opportunity for public hearings or meetings) on permits. It also is important to provide public notice and sufficient time for the public to review technical, often complex, permit documents. In addition, EPA has found that notice of opportunities for public review of and input to key post-permit decisions (e.g., significant permit modifications) is essential to an effective public participation program. While some States/Tribes may distinguish between minor permit actions (e.g., increasing the gas monitoring frequency) and major permit actions (e.g., selecting a corrective action remedy), the public should be involved in key decisions which affect their health and their community it decisions (e.g., significant permit modifications) is essential to an effective public participation program. While some States/Tribes may distinguish between minor permit actions (e.g., increasing the gas monitoring frequency) and major permit actions (e.g., selecting a corrective action remedy), the public should be involved in key decisions which affect their health and their community. For example, public notice of remedial actions and opportunity to comment on the selection of remedies is recommended. EPA believes the ultimate success of a permit program depends in large part on the effectiveness of a State's/Tribe's public participation program. The additional up-front time a State/Tribe takes involving the public in key permit decisions will result in long-term improvements to the permit program. While post-permit issuance public participation procedures will not be a determining factor in an adequacy determination, EPA is concerned with ensuring effective public participation. To that end, if, after reviewing the State's/Tribe's public participation narrative and procedures, the Regional Administrator determines that the State's/ Tribe's procedures could be improved, he/she will direct Regional staff to work with the State/Tribe to improve the effectiveness of its public participation procedures. States/Tribes also must demonstrate that they have the authority to require permit conditions that ensure compliance with the Subtitle D Federal revised criteria. Section 239.6 outlines the authorities States/Tribes must have for their permit programs to be deemed adequate. In order to demonstrate that they will ensure compliance with the Subtitle D Federal revised criteria, States/Tribes must describe and explain substantive differences between the State/Tribal requirements and the Subtitle D Federal revised criteria. States/Tribes may, in any case, impose requirements which are more stringent than the Federal requirements. 1.a programs to be deemed adequate. In order to demonstrate that they will ensure compliance with the Subtitle D Federal revised criteria, States/Tribes must describe and explain substantive differences between the State/Tribal requirements and the Subtitle D Federal revised criteria. States/Tribes may, in any case, impose requirements which are more stringent than the Federal requirements. 1.a. Permitting Requirements for MSWLFs As discussed earlier in the Approach section of today's proposal, States/Tribes may use any combination of design and performance standards as long as the State/Tribal standards ensure compliance with the Subtitle D Federal revised criteria for MSWLFs. Where 40 CFR Part 258 has a performance standard (e.g., Subpart B Location Restrictions), the State/Tribe may use any performance standard that is at least as stringent as the Federal performance standard. The State/Tribe also may use its own design standard or a combination of a performance standard and a design standard which achieves the Federal performance standard. Where Part 258 has both a performance standard and design standard (e.g., section 258.21--cover material requirements), the State/Tribe need only demonstrate technical comparability with one of the standards. For example, if the State/Tribe requires MSWLF owners and operators to use a specific daily cover material that the State/Tribe demonstrates to the satisfaction of the Regional Administrator meets the Federal performance standard of Part 258.21 (i.e., controlling disease vectors, fires, odors, blowing litter, and scavenging without presenting a threat to human health and the environment), the Regional Administrator may accept that design as adequate. States/Tribes also may use design or performance standards that the Regional Administrator deems to be clearly more stringent than those found in Part 258 rmance standard of Part 258.21 (i.e., controlling disease vectors, fires, odors, blowing litter, and scavenging without presenting a threat to human health and the environment), the Regional Administrator may accept that design as adequate. States/Tribes also may use design or performance standards that the Regional Administrator deems to be clearly more stringent than those found in Part 258. EPA has received a number of questions concerning the Agency's standard for determining the adequacy of the design portion of a state's permit program. In Subpart D of 40 CFR Part 258, the Agency promulgated both a performance standard (section 258.40(a)(1)) and a uniform composite liner requirement (sections 258.40(a)(2) and 258.40(b)). Under the performance standard provision, a new MSWLF unit or a lateral expansion of an existing unit must be constructed using a design approved by the Director of an approved state, and this design must ensure that concentration values listed in Table 1 of section 258.40 (Maximum Contaminant Levels (``MCLs'')) will not be exceeded at the relevant point of compliance, as specified by the approved State Director under section 258.40(d). Section 258.40(c) sets forth criteria for the Director of an approved state to utilize in evaluating designs. Section 258.40(d) provides that the relevant point of compliance shall be no more than 150 meters from the waste management unit boundary and shall be located on land owned by the owner of the MSWLF unit. This section also establishes the factors which the Director of an approved state must consider in determining what the relevant point of compliance should be. As the Agency stated when the MSWLF final rule was promulgated, EPA's approach to state program approval recognizes the traditional lead role that states take in implementing landfill standards and protecting ground water. 56 FR 50994 (Oct. 9, 1991) o establishes the factors which the Director of an approved state must consider in determining what the relevant point of compliance should be. As the Agency stated when the MSWLF final rule was promulgated, EPA's approach to state program approval recognizes the traditional lead role that states take in implementing landfill standards and protecting ground water. 56 FR 50994 (Oct. 9, 1991). More specifically, EPA stated that, ``[i]n selecting a design to meet this performance standard, an approved State may adopt its own performance standard, it may use the rule's specific liner design, or it may use any design it determines would be capable of preventing contamination of ground water beyond the drinking water standards [the MCLs].'' Id. In evaluating the design requirements for new units and lateral expansions in State permit programs, EPA has provided states with various approaches for developing adequate programs. For example, States can develop design requirements that only include a performance standard that is at least as stringent as the performance standard in 40 CFR section 258.40(a)(1), i.e., not exceeding the MCLs at the relevant point of compliance. In such States, the Director could approve alternative designs on a site-specific basis as long as the alternative design satisfied the performance standard. The vast majority of the 44 State/Tribal permit programs which EPA has approved as adequate have included a performance standard that is at least as stringent (in certain cases more stringent, e.g., by specifying a relevant point of compliance closer than 1 [Text truncated at 120,000 characters. 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Check the current official text before relying on it. Not legal advice.