United States
Environmental Protection
Agency
Solid Waste
and Emergency Response
(5306W)
EPA530-R-97-016
August 1997
Site-Specific Flexibility
Requests for Municipal
Solid Waste Landfills in
Indian Country
Draft Guidance
WASTE MANAGEMENT IN INDIAN COUNTRY
fJX) Printed on paper that contains at least 20 percent postconsumer fiber.
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The following is a draft guidance document that sets out a process designed to help owners and operators
in requesting flexibility in federal municipal solid waste landfill (MSWLF) rules in Indian Country and to help
EPA Regional offices in reviewing and processing such requests. We encourage owners and operators of
MSWLFs in Indian Country to use this guidance in its present form when seeking site-specific flexibility in
conforming to the federal regulations applicable to MSWLFs. EPA may revise the process based on further
review and any comments received on the draft guidance contained in this document.
The policies set out in this guidance are not final Agency actions, but are intended solely as guidance.
They are not intended, nor can they be relied upon, to create any rights enforceable by any party in litiga-
tion with the United States. EPA officials may decide to follow the guidance provided, or to act at variance
with the guidance, based on an analysis of site-specific circumstances. The Agency also reserves the right
to change this guidance at any time.
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Contents
Introduction
Section 1
Process for Tribal Government MSWLF Owners and Operators 5
Section 2
Process for MSWLF Owners and Operators Other Than Tribal Governments 7
Section 3
Review Process for a Tribe That Receives a Request From an Owner or Operator 11
Appendix A
Map of EPA Regions, Identification of EPA Regional Contacts, and Suggested Means of
Demonstrating That Proposed Alternative Approaches Satisfy 40 CFR Part 258 Criteria 13
Appendix B
Sample Application Materials for Tribal Government MSWLF Owners and Operators .17
Appendix C
Sample Application Materials for MSWLF Owners and Operators Other Than Tribal Governments ... .21
Appendix D
Sample Response Materials for Tribes 25
Appendix E
List of Public Involvement Process Resources . . . . 28
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Introduction
This draft guidance document describes a process by which munici-
pal solid waste landfill (MSWLF) owners and operators in Indian
Country1 may apply for the same flexibility that is available to
landfill owners and operators in states with EPA-approved MSWLF per-
mitting programs. The process encourages active dialogue among tribes',
MSWLF owners and operators, EPA, and the public. This guidance is
designed so that the Agency works in partnership with tribes. Because
EPA recognizes tribal sovereignty, EPA will respect tribal findings con-
cerning consistency of proposed approaches with tribal law and policy.
Background
Federal regulations governing MSWLFs establish criteria for their
location, design, operation, ground-water monitoring, corrective
action, closure and post-closure care, and financial assurance.
These criteria are in the Code of Federal Regulations at 40 CFR Part 258.
For many of these criteria, 40 CFR Part 258 establishes a flexible perfor-
mance standard in addition to the self-implementing technical standard.
(See sidebar on page 3 for example.)
The Agencys role in the regulation of MSWLFs is to establish these
national minimum standards that the states are to incorporate into their
MSWLF permitting programs. EPA evaluates state MSWLF permitting
programs to determine whether they are adequate to ensure that MSWLF
owners and operators comply with the federal standards. Once EPA
approves a state MSWLF permitting program, that state can allow
MSWLF owners and operators to use flexible performance standards. The
flexibility provided in the MSWLF criteria allows for the consideration of
site-specific conditions in designing and operating a MSWLF at the low-
est cost possible while ensuring protection of human health and the envi-
ronment. In unapproved states, owners and operators must follow the
self-implementing technical standards.
1 Tills guidance uses the ter-m- "Indian Country" as denned in 40 CFR §258.2 to mean "(1) All land
within the limits of any Indian reservation under the jurisdiction of the United States Government,
notwithstanding the issuance of any patent, and including rights-of-way running throughout the
reservation; (2) All dependent Indian communities within the borders of the United States whether
within the original or subsequently acquired territory thereof, and whether within or without the
limits of trie State; and (3) All Indian allotments, the Indian titles to which have not been extin-
guished, including rights-of-way running through the same."
; Throughout this guidance "tribe" and "tribal* refer to the federally recognized tribal government or
an agency or authorized official of toe tribal government.
EPA has the authority under
Sections 2002, 4004, and 4010
of the Resource Conservation
and Recovery Act (RCRA) to
promulgate site-specific rules
as outlined in this draft guid-
ance document. The authority
to issue such rules has been
upheld by a U.S. District Court
in Yankton Sioux Tribe v. EPA,
950 F. Supp. 1471 (D.S.D.
1996). In addition, a U.S. Court
of Appeals suggested it would
recognize EPA's authority to
issue such site-specific rules
under RCRA Subtitle D.
Backcountry Against Dumps v.
EPA, 100 F.3d 147 (D.C. Cir.
1996). In this decision, the
court noted that EPA and the
tribe need not wait for
Congress to amend RCRA to
obtain flexibility in complying
with the revised MSWLF crite-
ria. Instead, the court suggest-
ed that EPA could issue a
site-specific rule satisfying both
the intent of RCRA and an
owner or operator's need for
flexibility. The steps outlined in
this guidance document for
promulgating site-
specific rules are meant to sat-
isfy the notice and opportunity
for comment requirements of
the Administrative Procedure
Act (5 USC 551).
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EPA's Goal
From the beginning of EPAs development of the permitting program
approval process, the Agency planned to offer permitting program
approval to tribes as well as to states. In a recent court decision3, the
court ruled that EPA cannot approve tribal permitting programs. The deci-
sion means that our existing regulations do not provide a mechanism under
which owners and operators in Indian Country can take advantage of site-
specific approaches that would enable them to reduce the cost of operating
a MSWLF that is protective of human health and the environment. The
Agency has therefore developed a site-specific rulemaking process to meet
its goal of providing warranted flexibility quickly and efficiently to owners
and operators in Indian Country. Under this process, an owner or operator
can request to use certain alternative approaches at a specific MSWLF site to
meet the 40 CFR Part 258 performance standards. (See page 4 for examples
of alternative approaches that consider site-specific conditions.)
Tribal government owners and operators should submit such requests
directly to EPA Regional offices (see Appendix A, page 13 for a map and
contact information). Other owners and operators, including individual
tribal members, should submit requests to the tribal government in
whose area of Indian Country the MSWLF is or will be located. The
tribal government should review the request and forward it to EPA with
a recommendation. If EPA approves a request, it will issue a site-specific
rule allowing the use of alternative approaches.
Example of Technical and
Performance Standards in
40 CFR Part 258: Daily Cover
Technical standard:
6 inches of earthen material.
Performance standard:
Any alternative cover material
and thickness that control
disease vectors, fires, odors,
blowing litter, and scavenging
without presenting a threat to
human health and the
environment.
Organization of This Document:
Section 1 is guidance for tribal government MSWLF owners and operators.
Section 2 is guidance for MSWLF owners and operators other than tribal governments. This
includes individual tribal members.
Section 3 is guidance for tribal environmental protection personnel and other tribal govern-
ment officials who receive requests from MSWLF owners or operators.
* Bad-country Against Dumps v: EPA, 100 E3d 147 (D.C. Cir. 1996).
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Site-Specific Flexibility Requests in Indian Country
Examples of Alternative Approaches Allowed by 40 CFR Part 258
For a more complete list of areas of flexibility, see Appendix A, page 14 or consult the
MSWLF criteria in 40 CFR Part 258.
Location:
Wetlands siting of new MSWLFs.
Deadline for closure of existing MSWLFs that do
not comply with the fault area, seismic impact
zone (SIZ), unstable area, floodplain, and/or air-
port safety provisions.
Operations:
Alternative daily cover materials or alternative
cover thickness.
Temporary waiver of daily cover requirements.
Alternative locations for facility records.
For MSWLF Design:
Alternative landfill designs meeting performance
standard (in lieu of composite liner).
Ground-Water Monitoring:
Alternative boundary (or point of compliance) for
ground-water monitoring (and corrective action
and design) requirements.
A multi-unit ground-water monitoring system,
instead of separate monitoring systems for each
MSWLF unit at a facility.
List of detection monitoring parameters.
Alternative frequency for detection monitoring.
List of assessment monitoring parameters.
Alternative frequencies for various sampling steps
during assessment monitoring.
Corrective Action:
Alternative ground-water protection standards for
any constituent for which a maximum contaminant
level (MCL) has not been established.
Waiver of cleanup of a particular 40 CFR Part 258
Appendix II constituent.
Alternative time period defining end of corrective
action.
Closure and Post-Closure Care:
Alternative final cover design.
Extension beyond specified deadline for beginning
closure activities.
Extension beyond specified deadline for complet-
ing closure.
Removal of notation from the deed.
Reduction of the 30-year post-closure care period.
For Financial Assurance:
Alternative financial assurance mechanisms.
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Section 1
Process for Tribal Government MSWLF
Owners and Operators
Note: If you are not an authorized official of a federally recognized tribal government,
please see Section 2. Sections 1 and 2 contain some similar steps, but they are not identical.
STEP 1
Evaluate Alternative Approaches and Submit Request Package
If you are opening, operating, or expanding a MSWLF in Indian Country, you may wish
to use alternative approaches to meet the requirements of the MSWLF criteria in 40 CFR
Part 258. Before making any decision, you should familiarize yourself with the federal
requirements and the areas in which you can seek flexibility. You can apply for flexibility
in site selection, liner design, daily cover application, ground-water monitoring, correc-
tive action, closure and post-closure care, and financial assurance. For examples of the
alternative approaches allowed in 40 CFR Part 258, see page 4.
Once you have decided on an alternative approach, you should assemble a request pack-
age. It should include a cover letter and a Site-Specific Flexibility Request Form (see
Appendix B, pages 17 to 19 for samples) and appropriate rationale, engineering draw-
ings, modeling results, or other documentation demonstrating compliance of your pro-
posed approach with the requirements of the criteria in 40 CFR Part 258. You may wish
to identify in this letter any additional and relevant impacts to human health and the
environment. You should have an authorized official of the tribal government certify that
the request complies with tribal law and policy (see Appendix B, page 20 for a sample
certification letter), and then you should submit the request to the appropriate EPA
Regional office (see Appendix A, page 13 for a map and contact information). Regional
office personnel will work closely with you throughout the request process. You will
receive a letter from us acknowledging receipt of your request. In most cases, we will
publish a notice in the local newspaper (and in the Federal Register, if appropriate) indi-
cating that we have received your request.
STEP 2:
EPA Review
We will perform a technical review of your request to determine whether your pro-
posed approach meets the requirements of the criteria in 40 CFR Part 258. During this
technical review, we might ask you for additional information to help us assess your
proposal. To expedite our review, you should respond to such requests promptly.
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Site-Specific Flexibility Requests in Indian Country
STEP 3:
STEP 4:
STEP 5:
Tentative Decision by EPA Public Participation
We will attempt to rule on your
request within 90 days of receiving
It. You will receive a letter of tenta-
tive approval or a notice of technical
deficiency. In cases of technical defi-
ciency the letter will tell you where
your proposed approach failed to
meet the requirements of the criteria
in 40 CFR Part 258. If you receive a
notice of technical deficiency and
you decide to modify your
approach, you will be expected to
provide a revised request package to
us. If these modifications result in
tentative approval, processing of
your request will continue.
If we tentatively approve your
request or provide a notice of tech-
nical deficiency, in most cases, we
will publish a notice in the local
newspaper (and in the Federal
Register, if appropriate) announcing
the tentative decision and inviting
public comment.
The rule request process includes a
public participation period. The
public notices described in Steps 1
and 3 enable the public, including
nearby residents such as tribal mem-
bers, and other interested parties, to
become involved in the request eval-
uation. We will consider public com-
ments on your request and, if
appropriate, hold public hearings.
Several available EPA publications
explain the public involvement
process. (See Appendix E, page 28
for a listing.) You may want to con-
sult these publications to familiarize
yourself with that process. You may
also want a tribal representative to
attend public hearings and present
your' views and information. You are
encouraged to read the public com-
ments in the docket and remain in
close contact with us.
Finalization of Decision
After the public participation peri-
od, we will send you a final deci-
sion. We will, in most cases, also
publish a notice of the final deci-
sion in the local newspaper (and in
the Federal Register, if appropriate)
and send you a copy of the notice.
Our correspondence will document
any additional suggestions or con-
ditions that we may have attached
to the decision to address issues
specifically related to the areas of
flexibility you requested. We will
discuss these issues, if any, with
you before finalizing our decision.
STEP 1:
Formal
Submission
Submit your
request package to
EPA Regional
office and include
certification that
request complies
with tribal law and
policy. We send
letter of
acknowledgment to
you; in most cases,
publish a notice in
local newspaper
indicating that we
have received your
request; and open
dialogue with you.
STEP 2:
EPA Review
We review
request for
compliance
with 40 CFR
Part 258.
STEP 3:
EPA Tentative Decision
Within 90 days,
we make tentative
decision and send
letter of tentative
approval or notice
of technical
deficiency to you.
If approval or
notice of technical
deficiency: We will,
in most cases,
publish notice in
local newspaper
requesting
public comment.
t
If notice of
technical
deficiency: You
may work with us to
remedy deficiencies
until the request is
tentatively
approved.
STEP 4:
Public
Participation
We consider
comments and
hold public
hearings as
necessary.
STEP 5:
Finalization
of Decision
We will, in most
cases, publish a
notice of final
decision in local
newspaper.
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Section 2
Process for MSWLF Owners and Operators
Other Than Tribal Governments
STEP 1
Evaluate Alternative Approaches and Submit Request Package
If you are opening, operating, or expanding a MSWLF in Indian Country, you may
wish to use alternative approaches to meet the requirements of the MSWLF criteria
in 40 CFR Part 258. Before making any decision, you should familiarize yourself
with the federal requirements and the areas in which you can seek flexibility. You
can apply for flexibility in site selection, liner design, daily cover application,
ground-water monitoring, corrective action, closure and post-closure care, and
financial assurance. For examples of alternative approaches allowed in 40 CFR Part
258, see page 4.
Once you have decided on an alternative approach, you should assemble a request
package. It should include a cover letter and a Site-Specific Flexibility Request Form
(see Appendix C, pages 21 to 23 for samples) and appropriate rationale, engineering
drawings, modeling results, or other documentation demonstrating compliance of
your approach with the requirements of the criteria in 40 CFR Part 258. You should
submit the request to the tribal government in whose area of Indian Country your
MSWLF is or will be located. Many tribes have offices of natural resources or
environmental protection. Consult with the tribal government to determine exactly
where to send your request.
At the same time, you should also send a letter (see Appendix C, page 24 for
sample) and a copy of the Site-Specific Flexibility Request Form to the appropriate
EPA Regional office (see Appendix A, page 13 for a map and contact information),
notifying us that you have sent a request to the tribe. You and the tribe will receive
letters from us acknowledging receipt of your letter. We will also, in most cases,
publish a notice in the local newspaper (and in the Federal Register, if appropriate)
indicating that we and the tribe have received your request and that the tribe is
reviewing it.
7
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Site-Specific Flexibility Requests in Indian Country
STEP 2:
Tribal Review
Within 30 days of filing your
request, you should receive a letter
of acknowledgment from the tribe.
This indicates that the tribe has
received your request and has
begun reviewing It. If, after 30
days, you have not received the
tribal acknowledgment letter, you
should contact the tribe to deter-
mine the disposition of your
request. You should work closely
with the tribe to address any issues
that the tribe may identify as need-
ing resolution in order to proceed
with a review.
The tribe should evaluate whether
your- proposed approach complies
with tribal law and policy. The tribe
also may review your request for
compliance with the requirements
of the criteria in 40 CFR Part 258,
although we also will do this in our
review. Additionally, the tribe might
provide comments about the
impact of your proposed approach
on human health and the environ-
ment.
Within 90 days of receiving your
request, the tribe should complete
its review. You should then receive
a letter from the tribe indicating
whether it supports your request. If
the tribe does not support it, you
should be specifically informed in
this letter of any areas where your
proposed approach is inconsistent
with tribal law or policy or fails, in
the tribes view, to meet the require-
ments of the criteria in 40 CFR Part
258. The tribe will also forward
your application and a copy of the
letter of tribal findings to the
appropriate EPA Regional office.
STEP 1:
Formal
Submission
Submit your request
package to tribe for
review and send
notification letter to EPA
Regional office. We
send letter of
acknowledgment to you
and tribe; in most cases,
publish notice in local
newspaper
indicating tribe has
received and is
reviewing request; and
open dialogue with tribe.
STEP 2:
Tribal Review
If tribe responds to
your request: Within 30
days, tribe sends letter to
you (cc: EPA)
acknowledging receipt.
If, after 30 days, tribe has
not responded to your
request submission: You
should contact the tribe to
determine the disposition of
your request.
Within 90 days,
tribe reviews
request for
consistency with
tribal law and
policy and may
assess
compliance with
40 CFR Part
258. Tribe
forwards your
request and the
tribal findings to
us.
STEP 3:
EPA
Acknowledgment
We review tribe's
comments and contact
tribe for any needed
clarification. Within 10
days, we send letters
to you and tribe
acknowledging receipt
of request.
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Site-Specific Flexibility Requests in Indian Country
STEP 3:
STEP 4:
EPA Acknowledgment EPA Review
About 10 days after the tribe noti-
fies you of its findings, you should
receive a letter from us acknowl-
edging that we have received your
request and a copy of the letter of
tribal findings. During our review
of the tribes comments we may
contact the tribe for clarifications.
If our review of the Information
provided by the tribe indicates trib-
al support for your proposed
approach, we will evaluate your
request for compliance with the
requirements of the criteria in 40
CFR Part 258. During 'this technical
evaluation, we might ask you for
additional information to help us
assess your proposal. To expedite
our evaluation, you should respond
to such requests promptly.
If our review of tribal input indi-
cates a lack of support for your
proposal, we may send you and the
tribe letters recommending that
you work together to determine
means by which you might revise
your approach to address tribal
concerns. After such revision, you
should resubmit your request to
the tribe. The tribe should again
review your request and resubmit it
and any additional input to us for
review. If, at that time, the tribe
indicates its support, we will
perform the technical evaluation
described above. If the tribe still
indicates a lack of support, we will
consider your request with their
comments in mind.
STEP 4:
EPA Review
STEP 5:
EPA Tentative Decision
If the tribe supports
the request: We review
request for compliance
with 40 CFR Part 258.
If the tribe does not
support the request: We
may send a letter to you
recommending that you
work with tribe to address
their concerns. After you
have revised your request
to address tribal
concerns, if the tribe still
indicates a lack of
support, we will consider
your request with their
comments in mind.
Within 90 days,
we make tentative
decision and send
letter of tentative
approval or notice
of technical
deficiency to you
(cc: tribe).
If approval or
notice of technical
deficiency: We will,
in most cases,
publish notice in
local newspaper
requesting
public comment.
If notice of
technical
deficiency: You
may work with us
and tribe to modify
your approach until
the request is
tentatively
approved.
STEP 6:
Public
Participation
We consider
comments and hold
public hearings
as appropriate.
STEP 7:
Finalization of
Decision
EPA will, in most
cases, publish
a notice of final
decision in local
newspaper.
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Site-Specific Flexibility Requests in Indian Country
STEP 5:
STEP 6:
STEP 7:
Tentative Decision by EPA Public Participation
We will attempt to rule on your
request within 90 days of receiving
it from the tribe. You will receive a
letter of tentative approval or a
notice of technical deficiency. In
cases of technical deficiency, the
letter will tell you where your
proposed approach failed to meet
the requirements of the criteria in
40 CFR Part 258. If you receive a
notice of technical deficiency and
you decide to modify your
approach, you will be expected to
provide revised request packages to
the tribe for comment and to us. If
these modifications result in tenta-
tive approval, and your modified
approach is supported by the tribe,
processing of your request will
continue.
If we tentatively approve your
request or provide a notice of tech-
nical deficiency, we will, in most
cases, publish a notice in the local
newspaper (and in the Federal
Register; if appropriate) announcing
the tentative decision and inviting
public comment.
The rule request process includes
a public participation period. The
public notices described in Steps
1 and 5 enable the public, includ-
ing nearby residents such as tribal
members, and other interested
parties, to become involved in the
request evaluation. We will con-
sider public comments on your
request and, if appropriate, hold
public hearings.
Several available EPA publications
explain the public involvement
process. (See Appendix E, page 28
for a listing.) You may want to
consult these publications to
familiarize yourself with that
process. You may also want a
representative of your organiza-
tion available to attend public
hearings and to present your
views and information. You and
the tribe are both encouraged to
read the public comments in the
docket and remain in close
contact with each other and with
us.
Finalization of Decision
After the public participation
period, we will send you a final
decision. We will also, in most
cases, publish a notice of the final
decision in the local newspaper
(and in the Federal Register, if
appropriate) and send you a copy
of the notice. Our correspon-
dence will document any addi-
tional suggestions or conditions
that we may have attached to the
decision to address issues specifi-
cally related to the areas of flexi-
bility you requested. We will
discuss these issues, if any, with
you and the tribe before finalizing
our decision.
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Section 3
Review Process for a Tribe That Receives a Request
From an Owner or Operator
This section describes the steps that a tribe should take when it receives a MSWLF owner or
operators request for approval of an alternative approach. The steps outlined below are the
same as those discussed in Section 2; however, this section focuses on the tribe's role
rather than that of the owner or operator.
STEP 1:
Evaluate Alternative Approaches and Submit Request Package
The owner or operator should submit to you an application package consisting of a cover letter,
the Site-Specific Flexibility Request Form, and appropriate rationale, engineering drawings, mod-
eling results, or other documentation demonstrating that the proposed approach will satisfy the
requirements of the criteria in 40 CFR Part 258. At the same time, the owner or operator should
submit a letter notifying the appropriate EPA Regional office of the request filed with you. As a
result of this notification, you and the owner or operator will receive letters from us indicating
that we are aware of the request. The letter should state that we have published a notice in the
local newspaper (and in the Federal Register, if appropriate) indicating that you and the Regional
office have received the request and that you are reviewing it.
STEP 2:
Tribal Review
Within 30 days of receiving the request, you should send a letter of acknowledgment (see Appendix
D, page 25 for sample) to the owner or operator. This indicates that you have received the request and
have begun reviewing it. In your review, you should evaluate whether the proposed approach complies
with tribal law and policy. You also may review the request for compliance with the requirements of
the criteria in 40 CFR Part 258, although we also will do this in our review. Additionally, you may pro-
vide comments about the impact of the proposed approach on human health and the environment.
Within 90 days of receiving the request, you should complete your review and send a letter (see
Appendix D, pages 26 to 27 for samples) to the owner or operator indicating whether you sup-
port the request. If you do not support it, please specify in this letter any areas where the pro-
posed approach is inconsistent with tribal law or policy, has impacts on human health or the
environment, or, in your view, fails to meet the requirements of the criteria in 40 CFR Part 258.
You should also forward the request and a copy of the letter of tribal findings to the EPA Region
(see Appendix A, page 13 for map and contact information).
11
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12
Site-Specific Flexibility Requests in Indian Country
STEP 3:
EPA Acknowledgment
About 10 days after you forward the
request and your findings to us, you
will receive a letter from us acknowl-
edging that we have received the
materials. Before beginning our own
technical review for compliance with
the requirements of the criteria in 40
CFR Part 258, we will read and
consider your views concerning con-
sistency with tribal law and policy,
impacts on human health and the
environment, and any other com-
ments. We may contact you during
this time for clarifications.
STEP 4:
EPA Review
If our review of the information you
provided indicates your support for
the owner or operators proposed
approach, we will evaluate the
request for compliance with the
requirements of the criteria in 40
CFR Part 258.
If our review of your input indicates
a lack of support for the owner or
operators proposal, we may send you
and the owner or operator letters
recommending that you work togeth-
er to determine means by which the
owner or operator might revise his ot-
her approach to address tribal con-
cerns. After such revision, the owner
or operator should resubmit the
request to you. You should again per-
form a review of the request as
described in Step 2, and submit the
request and any additional input to
us for review. If, at that time, you
indicate your support, we will
perform the technical evaluation
described above. If you still do not
support the request, we will carefully
consider your objections before
continuing this process.
STEP 5:
Tentative Decision by EPA
We will attempt to rule on the
request within 90 days of receiv-
ing it and your letter of findings.
You will receive a copy of the
letter of tentative approval or
notice of technical deficiency that
we send to the owner or operator.
In cases of technical deficiency, the
letter will tell you and the owner
or operator where the proposed
approach failed to meet the
requirements of the criteria in 40
CFR Part 258.
If the owner or operator receives a
notice of technical deficiency and
decides to modify his or her
approach, he or she will be expect-
ed to provide revised request pack-
ages to you for comment and to us.
You should maintain contact with
us and the owner or operator to
stay informed of any modifications
to the request. Your involvement
ensures that modifications intended
to gain our approval do not make a
previously acceptable approach
unacceptable to you.
If we tentatively approve the
request or provide a notice of
technical deficiency, we will, in
most cases, publish a notice in
the local newspaper (and in the
Federal Register, if appropriate)
announcing the decision and
inviting public comment.
STEP 6:
Public Participation
The rule request process includes a
public participation period. The pub-
lic notices described in Steps 1 and 5
enable the public, including nearby
residents such as tribal members, and
other interested parties, to become
involved in the request evaluation. We
will consider public comments on the
owner or operators request and, if
appropriate, hold public hearings.
Several available EPA publications
explain the public involvement
process. (See Appendix E, page 28 for
a listing.) You may want to consult
these publications to familiarize your-
self with that process. You may also
want a tribal representative to attend
public hearings and to present your
views and information. You and the
owner or operator are both encour-
aged to read the public comments in
the docket and remain in close con-
tact with each other and with us.
STEP 7:
Finalization of Decision
After the public participation period,
we will send you a copy of our final
decision. We will also, in most cases,
publish a notice of the final decision
in the local newspaper (and in the
Federal Register, if appropriate) and
send you a copy of the notice. Our
correspondence will document any
additional suggestions or conditions
that we may have attached to the
decision to address issues specifically
related to the areas of flexibility the
owner or operator requested. We will
discuss these issues, if any, with you
and the owner or operator before
finalizing our decision.
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Appendix A
MAP OF EPA REGIONS
EPA REGIONAL OFFICE CONTACTS
Address correspondence to "Regional Administrator," and send a courtesy copy to "EPA Regional Solid Waste
Indian Coordinator," at the appropriate Regional office address below.
U.S. EPA Region 1
JFK Federal Building
Boston, MA 02203
617 565-3420
U.S. EPA Region 2
290 Broadway
26th Floor
New York, NY 10007-1866
212 637-3000
U.S. EPA Region 3
841 Chestnut Building
Philadelphia, PA 19107
215 566-5000
U.S. EPA Region 4
Atlanta Federal Center
61 Forsyth Street, SW.
Atlanta, GA 30303-3104
404 562-9900 or
800241-1754
U.S. EPA Region 5
77 West Jackson Boulevard
Chicago, IL 60604
312353-2000
U.S. EPA Region 6
First Interstate Bank Tower
1445 Ross Avenue, Suite 1200
Dallas, TX 75202-2733
214665-6444
U.S. EPA Region 7
726 Minnesota Avenue
Kansas City KS 66101
913 551-7000
U.S. EPA Region 8
999 18th Street, Suite 500
Denver, CO 80202-2466
303312-6312
U.S. EPA Region 9
75 Hawthorne Street
San Francisco, CA 94105
415744-1305
U.S. EPA Region 10
1200 Sixth Avenue
Seattle, WA 98101
206 553-1200
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14
Site-Specific Flexibility Requests in Indian Country
Suggested Means of Demonstrating That Proposed Alternative
Approaches Satisfy 40 CFR Part 258 Criteria
LOCATION
For a complete list of available areas of flexibility, see 40 CFR Part 258.
Build in Wetlands [§258.12(a)]
Demonstrate no practicable alternative to siting
in a wetland, no violation of Clean Water Act
toxic effluent standard, and no threat to endan-
gered species.
Demonstrate avoided impacts to wetlands, mini-
mization of any unavoidable impacts, and offset
of any remaining impacts through restoring exist-
ing degraded wetlands or creating new wetlands.
Build Within 200 Feet of a Fault [§258.13(a)]
Demonstrate that structural damage to the
landfill can be prevented with a setback of less
than 200 feet and that human health and the
environment will be protected.
Build in a Seismic Impact Zone (SIZ)
[§258.14(a)]
Demonstrate that all containment structures
are designed to resist the maximum horizontal
acceleration expected in the rock at the site.
Extend Deadline for Closure of Existing
MSWLFs that Do Not Comply with the
Unstable Area, Floodplain, or Airport Safety
Provisions [§258.16(b)]
For extension of closure deadline from October
9, 1996 to October 9, 1998, demonstrate no
available alternative disposal capacity exists
and that landfill presents no immediate threat
to human health and the environment.
OPERATIONS
Alternative Daily Cover Materials [§258.21 (b)]
Demonstrate that alternative material controls
insects, rodents, fires, odors, blowing litter, and
scavenging.
Temporary Waiver of Daily Cover
Requirements [§258.21 (c)]
Show daily cover impractical due to extreme
weather conditions.
Alternative Locations for Facility Records
[§258.29(a)]
Show that facility records will be maintained in
an appropriate location other than near the
landfill.
DESIGN
Alternative Liner System Design
[§§258.40(3)(1),(c),(d)]
Demonstrate that an alternative liner design
ensures that constituent concentrations listed
in §258.40, Table 1 will not be exceeded in the
uppermost aquifer at the relevant point of
compliance.
Address the hydrogeologic characteristics of
the landfill site, climate, volume, and physical
and chemical characteristics of the leachate,
and model potential contaminant migration.
GROUND-WATER MONITORING
Suspension of Ground-Water Monitoring
Requirements [§258.50(b)]
Demonstrate that there is no potential for
migration of hazardous constituents to upper-
most aquifer during the landfill's active life and
post-closure care period.
Alternative Boundary (Point of Compliance)
for Ground-Water Monitoring [§§258.40(d) and
258.51 (a)(2)]
Demonstrate that a monitoring point up to 150
meters away from the landfill unit boundary
rather than at the boundary will ensure detec-
tion of ground-water contamination in the
uppermost aquifer.
Use of Multi-Unit Ground-Water Monitoring
System [§258.51 (b)]
Demonstrate multi-unit system is as protective of
human health and the environment as monitor-
ing individual units, taking into account the num-
ber, spacing, and orientation of the MSWLF
units, hydrogeology, site history, engineering
design of units, and types of waste accepted.
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Site-Specific Flexibility Requests in Indian Country
15
Modified List of Detection Monitoring
Parameters [§258.54(a)(1), (2)]
For deletion of an Appendix I detection moni-
toring parameter, demonstrate that the con-
stituent is not reasonably expected to be in or
derived from the waste in the landfill.
For an alternative list of inorganic indicator
parameters, demonstrate that the parameters
will reliably indicate inorganic releases to
ground water. Accurate analysis for some such
parameters may only be possible with field-
filtered samples.
Alternative Frequency for Detection
Monitoring [§258.54(b)]
Demonstrate that an alternative frequency, no
less than annual, is appropriate for the site,
taking into account the (1) lithology of the
aquifer and unsaturated zone; (2) hydraulic
conductivity of the aquifer and unsaturated
zone; (3) ground-water flow rate; (4) minimum
distance between the upgradient edge of the
MSWLF unit and the downgradient monitoring
well; and (5) the resource value of the aquifer.
Modified List of Assessment Monitoring
Parameters [§258.55(b)]
Demonstrate that any of the Appendix II
assessment monitoring parameters are not
reasonably expected to be in or derived from
the waste in the landfill, by providing informa-
tion on characterization of the waste and
leachate.
Alternative Frequencies for Sampling Steps
[§§258.55(c),
Demonstrate that an alternative frequency, no
less than annual, is appropriate for the site, by
providing information on: (1) lithology of the
aquifer and unsaturated zone; (2) hydraulic
conductivity of the aquifer and unsaturated
zone; (3) ground-water flow rate; (4) minimum
distance between the upgradient edge of the
MSWLF unit and the downgradient monitoring
well; (5) the resource value of the aquifer; and
(6) fate and transport of constituents.
CORRECTIVE ACTION
Establish Ground-Water Protection Standards
for Constituents for Which Maximum
Containment Levels Have Not Been
Established [§§258.55(i), (j)]
Demonstrate that standards rely on appropriate
health-based levels.
Provide information that the health-based levels
are: (1) derived following EPA guidelines; (2)
based on scientifically valid studies; (3) for car-
cinogens, concentrations representative of can-
cer risk levels with a 1 x 10~4 to 1 x 10~6 range;
and (4) for toxic chemicals that cause effects
other than cancer or mutation, concentrations
representative of daily exposure without delete-
rious effects during a lifetime.
Determination that Cleanup of a Particular
Appendix II Constituent is Unnecessary
[§258.57(e)]
Demonstrate that the ground water is contami-
nated by multiple sources and cleanup of the
MSWLF release would provide no significant
reduction in risk.
Demonstrate that the contaminated ground
water is not a current or potential source of
drinking water and is not hydraulically connect-
ed with waters to which the hazardous con-
stituents are migrating or are likely to migrate in
a concentration that would exceed ground-
water protection standards.
Demonstrate remediation is not technically fea-
sible or results in unacceptable cross media
impacts.
Alternative Time Period for Completion of
Corrective Action [§258.58(e)(2)]
Demonstrate that compliance with the ground-
water protection standards for a period shorter
than three years is indicative of a completed
remedy, by providing information on: (1) the
extent and concentration of the release(s); (2)
behavior of the hazardous constituents in the
ground water; (3) accuracy of monitoring or
modeling techniques; and (4) characteristics of
the ground water.
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1(3
Site-Specific Flexibility Requests in Indian Country
CLOSURE/POST-CLOSURE CARE
Use of Alternative Final Cover [§258.60(b)]
For an infiltration layer, demonstrate alternative
material and/or alternative thickness provides
reduction of infiltration equivalent to that of 18
inches of earthen material with: (1) a perme-
ability less than or equal to any bottom liner
system or natural subsoils, or (2) a permeabili-
ty no greater than 1 x 105 cm/sec.
For an erosion layer, demonstrate alternative
material and/or alternative thickness provides
protection from wind and water erosion equiva-
lent to that of 6 inches of earthen material.
Extension for Beginning Closure Activities
[§258.60(f)]
For extension of the 1-year deadline, demon-
strate that a MSWLF unit has the capacity to
receive additional waste, is likely to do so, and
that steps will be taken to prevent threats to
human health and the environment while the
unit remains unclosed.
Extension for Completing Closure Activities
[§258.60(g)]
For extension beyond the 180-day deadline,
show that closure activities will, of necessity,
take longer than 180 days and that steps will
be taken to prevent threats to human health
and the environment from the unclosed unit
during closure activities.
Remove Notation from Deed [§258.60(j)]
Demonstrate that all wastes have been
removed from facility.
Shorten the 30-Year Post-Closure Care Period
[§258.61 (b)]
Demonstrate that a shorter post-closure care
period is sufficient to protect human health and
the environment.
Disturbance of Final Cover [§258.61 (c)(3)]
Demonstrate that disturbance of final cover or
any other part of containment system will not
increase the potential threat to human health or
the environment.
FINANCIAL ASSURANCE
Alternative Financial Assurance Mechanisms
[§258.74(i)]
Demonstrate that mechanisms assure sufficient
funds to cover the estimated costs of closure,
post-closure care, and corrective action for
known releases; assure funds will be available
in a timely fashion when needed; and are legal-
ly valid, binding, and enforceable under federal
law.
Waiver of Financial Assurance Requirements
Until April 9, 1998 [§258.70(c) at 61 FR 60337]
Demonstrate that April 9, 1997 effective date
for financial assurance requirements does
not provide sufficient time to comply and that
waiver until April 9, 1998 will not adversely
affect human health and the environment.
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Appendix B
Sample Application Materials for Tribal Government
MSWLF Owners and Operators
Sample Application Letter to EPA Region for Site-Specific Flexibility Request
[Date]
[Name of Regional Administrator]
Regional Administrator
Region [xx], U.S. Environmental Protection Agency
[Street Address]
[City, State ZIP Code]
Dear [Mr. or Ms.] [Name of Regional Administrator]:
In accordance with applicable guidance, the [name of tribe] Tribe, [owner and/or operatorspecify
which] of the [name of landfill] landfill, is hereby formally submitting a flexibility request for the areas indicated
on the attached form. We have also enclosed all the materials necessary to demonstrate compliance of our pro-
posed approach with the requirements of the criteria in 40 CFR Part 258.
Should you require further information, please contact [individual you want EPA Regional Office to
contact] at [telephone number]. Thank you for your assistance.
Sincerely,
[Your name] *
[title], [name of tribe] Tribe
Enclosures
cc: EPA Regional Solid Waste Indian Coordinator
*This letter should be signed by the tribal chairperson or other individual who has the authority
to act on behalf of the tribal government.
17
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18
Site-Specific Flexibility Requests in Indian Country
Sample Site-Specific Flexibility Request Form
NAME OF LANDFILL:
MSWLF OWNER OR OPERATOR SUBMITTING REQUEST:.
MSWLF OWNER OR OPERATOR ADDRESS:
PHONE:
LOCATION OF LANDFILL (PHYSICAL ADDRESS OR TOWNSHIP/RANGE LOCATION):
PLEASE CHECK ONE:
Modification of existing landfill
New landfill
Please check all alternative approaches that are being proposed.
For MSWLF Location:
D Allow siting of new MSWLFs in wetlands.
D Allow siting of new MSWLFs within 200 feet of a fault.
L~H Allow siting of new MSWLFs in a seismic impact zone.
L~H Extend deadline for closure of existing MSWLFs that do not comply with the fault area, seismic impact
zone, unstable area, floodplain, and/or airport safety provisions.
For MSWLF Operations:
L~H Allow use of alternative daily cover materials or alternative cover thickness.
D Grant temporary waiver of daily cover requirements.
D Approve alternative locations for facility records.
For MSWLF Design:
D Approve landfill designs meeting performance standard (in lieu of composite liner).
For Ground-Water Monitoring:
L~H Suspend ground-water monitoring requirements.
D Establish an alternative boundary (or point of compliance) for ground-water monitoring (and corrective
action and design) requirements.
L~H Allow use of a multi-unit ground-water monitoring system, instead of separate monitoring systems for each
MSWLF unit at a facility.
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Site-Specific Flexibility Requests in Indian Country 19
For Ground-Water Monitoring (continued)
D Modify list of detection monitoring parameters.
EH Approve an alternative frequency for detection monitoring.
EH Modify list of assessment monitoring parameters.
D Specify alternative frequencies for various sampling steps during assessment monitoring.
For Corrective Action:
EH Establish Ground-Water Protection Standards for any constituent for which a maximum contami-
nant level (MCL) has not been established.
D Determine that cleanup of a particular Appendix II constituent is unnecessary.
EH Specify alternative time period for completion of corrective action.
For Closure/Post-Closure Care of MSWLFs:
D Approve use of an alternative final cover.
EH Grant extensions beyond specified deadline for beginning closure activities.
EH Grant extension beyond specified deadline for completing closure.
EH Allow removal of notation from the deed.
EH Shorten the 30-year post-closure care period.
EH Allow disturbance of final cover.
For Financial Assurance:
EH Approve use of alternative financial assurance mechanisms.
EH Waiver of financial assurance requirements for 1 year.
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20
Site-Specific Flexibility Requests in Indian Country
Sample Letter Certifying Compliance With Tribal Law and Policy
[Date]
[Name of Regional Administrator]
Regional Administrator
Region [xx], U.S. Environmental Protection Agency
[Street Address]
[City, State ZIP Code]
Dear [Mr. or Ms.] [Name of Regional Administrator]:
On behalf of the [name of tribe] Tribe, [owner and/or operatorspecify which] of the [name of landfill]
landfill, I certify that the attached flexibility request complies with the laws and policies of the [name of tribe]
Tribe.
Should you have any questions or concerns, please contact me at [telephone number].
Sincerely,
[Your name] *
[title], [name of tribe] Office of [name of office]
cc: EPA Regional Solid Waste Indian Coordinator
*This letter should be signed by the tribe's chief legal officer or other person who has the authority to make this
certification on behalf of the tribal government.
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Appendix C
Sample Application Materials for MSWLF Owners and
Operators Other Than Tribal Governments
Sample Application Letter to Tribe for Site-Specific Flexibility Request
[Date]
[Contact name]
[Title]
[Tribal Government]
[Street Address or P.O. Box Number]
[City, State ZIP Code]
Dear [Mr. or Ms.] [Contact name]:
In accordance with applicable guidance, [name of owning or operating organization], [owner and/or
operatorspecify which] of the [name of landfill] landfill, is hereby formally submitting a flexibility request for
the areas indicated on the attached form. We have also enclosed all the materials necessary to demonstrate com-
pliance of our proposed approach with the requirements of the criteria in 40 CFR Part 258. Please review this
request to ensure that it is consistent with tribal law and policy.
Should you require further information, please contact [individual you want tribe to contact] at [tele-
phone number]. Thank you for your assistance.
Sincerely,
[Your name]
[title], [name of owning or operating organization]
Enclosures
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22
Site-Specific Flexibility Requests in Indian Country
Sample Site-Specific Flexibility Request Form
NAME OF LANDFILL:
MSWLF OWNER OR OPERATOR SUBMITTING REQUEST:
MSWLF OWNER OR OPERATOR ADDRESS:
PHONE:
LOCATION OF LANDFILL (PHYSICAL ADDRESS OR TOWNSHIP/RANGE LOCATION):
PLEASE CHECK ONE:
Modification of existing landfill
New landfill
Please check all alternative approaches that are being proposed.
For MSWLF Location:
D Allow siting of new MSWLFs in wetlands.
D Allow siting of new MSWLFs within 200 feet of a fault.
EH Allow siting of new MSWLFs in a seismic impact zone.
D Extend deadline for closure of existing MSWLFs that do not comply with the fault area, seismic impact
zone, unstable area, floodplain, and/or airport safety provisions.
For MSWLF Operations:
D Allow use of alternative daily cover materials or alternative cover thickness.
EH Grant temporary waiver of daily cover requirements.
EH Approve alternative locations for facility records.
For MSWLF Design:
L~H Approve landfill designs meeting performance standard (in lieu of composite liner).
For Ground-Water Monitoring:
D Suspend ground-water monitoring requirements.
L~H Establish an alternative boundary (or point of compliance) for ground-water monitoring (and corrective
action and design) requirements.
D Allow use of a multi-unit ground-water monitoring system, instead of separate monitoring systems for each
MSWLF unit at a facility.
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Site-Specific Flexibility Requests in Indian Country 23
For Ground-Water Monitoring (continued)
D Modify list of detection monitoring parameters.
EH Approve an alternative frequency for detection monitoring.
EH Modify list of assessment monitoring parameters.
D Specify alternative frequencies for various sampling steps during assessment monitoring.
For Corrective Action:
EH Establish Ground-Water Protection Standards for any constituent for which a maximum contaminant level
(MCL) has not been established.
D Determine that cleanup of a particular Appendix II constituent is unnecessary.
EH Specify alternative time period for completion of corrective action.
For Closure/Post-Closure Care of MSWLFs:
D Approve use of an alternative final cover.
EH Grant extensions beyond specified deadline for beginning closure activities.
EH Grant extension beyond specified deadline for completing closure.
EH Allow removal of notation from the deed.
EH Shorten the 30-year post-closure care period.
EH Allow disturbance of final cover.
For Financial Assurance:
EH Approve use of alternative financial assurance mechanisms.
EH Waiver of financial assurance requirements for 1 year.
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24
Site-Specific Flexibility Requests in Indian Country
Sample Letter Notifying Regional Administrator of Request Filed With Tribe
[Date]
[Name of Regional Administrator]
Regional Administrator
Region [xx], U.S. Environmental Protection Agency
[Street Address]
[City, State ZIP Code]
Dear [Mr. or Ms.] [Name of Regional Administrator]:
In accordance with applicable guidance, [name of owning or operating organization], [owner and/or
operatorspecify which] of the [name of landfill] landfill, has formally submitted to the [name of tribe] Tribe a
flexibility request for the areas indicated on the attached form. Please prepare to review this request, which
should arrive from the tribe within 90 days.
Should you require further information, please contact [individual you want EPA Regional Office to con-
tact] at [telephone number]. Thank you for your assistance.
Sincerely,
[Your name]
[title], [name of owning or operating organization]
Enclosure
cc: EPA Regional Solid Waste Indian Coordinator
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Appendix D
Sample Response Materials for Tribes
Sample Letter From Tribe Acknowledging Receipt of Request
[Date]
[Name of owner or operator]
[Title]
[Owning or operating organization]
[Street Address or P.O. Box Number]
[City, State ZIP Code]
Dear [Mr. or Ms.] [Name of owner or operator]:
This letter is to inform you that the [name of Tribe] Office of [name of natural resources or other appro-
priate office] has received the flexibility request you submitted on [date] for the [name of landfill] landfill. In
accordance with applicable guidance, my staff is reviewing the request for compliance with tribal law and policy
and for impacts to human health and the environment. We will make every effort to provide a determination
within 90 days. We may contact you during this period to discuss the request.
Should you have any questions or concerns, please contact [individual you want owner or operator to
contact] at [telephone number].
Sincerely,
[Your name]
[title], [name of tribe] Office of [office]
cclEPA Regional Administrator
EPA Regional Solid Waste Indian Coordinator
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2(3
Site-Specific Flexibility Requests in Indian Country
Sample Tribal Determination Letter (Determination: Approve)
[Date]
[Name of owner or operator]
[Title]
[Owning or operating organization]
[Street Address or P.O. Box Number]
[City, State ZIP Code]
Dear [Mr. or Ms.] [Name of owner or operator]:
In accordance with applicable guidance, I have enclosed materials documenting our evaluation of the
flexibility request you submitted on behalf of [name of owning or operating organization] for the [name of land-
fill] landfill. A copy of this evaluation, along with your application package, is being sent to EPA.
We have found that your proposed approach complies with tribal law and policy and sufficiently safe-
guards human health and the environment. [OPTIONAL IF TRIBE REVIEWED FOR 40 CFR PART 258
COMPLIANCE: We have also reviewed your proposed approach for compliance with the requirements of the
criteria in 40 CFR Part 258 and find it to be satisfactory.] We recommend that EPA proceed with a technical
review of your request.
Should you have any questions or concerns, please contact [individual you want owner or operator to
contact] at [telephone number].
Sincerely,
[Your name]*
[title], [name of tribe] Office of [office]
Enclosures
cc: EPA Regional Administrator
EPA Regional Solid Waste Indian Coordinator
* This letter should be signed by the tribes chief legal officer or other person who has the authority to certify the
tribal governments evaluation of the owner or operators proposal.
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Site-Specific Flexibility Requests in Indian Country
27
Sample Tribal Determination Letter (Determination: Suspend)
[Date]
[Name of owner or operator]
[Title]
[Owning or operating organization]
[Street Address or P.O. Box Number]
[City, State ZIP Code]
Dear [Mr. or Ms.] [Name of owner or operator]:
In accordance with applicable guidance, I have enclosed materials documenting our evaluation of the
flexibility request you submitted on behalf of [name of owning or operating organization] for the [name of land-
fill] landfill. A copy of this evaluation, along with your request package, is being sent to EPA.
We recommend that EPA suspend processing of your request. Our findings are as follows:
D Does not comply with tribal law or policy (please specify name and section of law or policy and attach a copy):
In our view, does not comply with the requirements of the criteria in 40 CFR Part 258 (please specify):
Human health/environment concerns (please specify):
Should you have any questions or concerns or require further clarification of our findings, please contact
[individual you want owner or operator to contact] at [telephone number].
Sincerely,
[Your name] *
[title], [name of tribe] Office of [office]
cc: EPA Regional Administrator
EPA Regional Solid Waste Indian Coordinator
* This letter should be signed by the tribes chief legal officer or other person who has the authority to certify the
tribal governments evaluation of the owner or operators proposal.
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Appendix E
List of Public Involvement Process Resources
The following publications are available at no charge. To order, call EPA RCRA, Superfund, and EPCRA Hotline
at 800 424-9346; TDD 800 553-7672 (hearing impaired); in the Washington, DC metropolitan area,
703 412-9810; TDD 703 412-3323.
U.S. EPA. 1997. 1995 Toxics release inventory: Public data release. EPA745-R-97-005. Washington, DC.
(http://www.epa.gov/opptintr/tii/pdr95/drhome.htm)
U.S. EPA. 1996. RCRA public participation manual. EPA530-R-96-007. Washington, DC.
(http://www.epa.gov/epaoswer/hazwaste/permit/pubpart/manual.htm)
U.S. EPA. 1995. Decision-makers' guide to solid waste management: Second edition. EPA530-R-95-023.
Washington, DC. (http://www.epa.gov/epaoswer/non-hw/muncpl/dmg2.htm)
U.S. EPA. 1990. Sites for our solid waste: A guidebook for effective public involvement. EPA530-SW-90-019.
Washington, DC. (not available online.)
The following publication is available at no charge from the Environmental Justice Information line. To order,
call 800 962-6215.
U.S. EPA. 1992. Environmental equity: Reducing risk for all communities. EPA230-R-92-008A. Washington, DC.
(http://www.epa.gov/docs/oppeinet/oppe/futures/risk/history/equity/index.html)
28
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