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        Draft Guidance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The following is a draft guidance document that sets out a process designed to help owners and operators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review and any comments  received on the draft guidance contained in this document.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      This draft guidance document describes a process by which munici-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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10
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 operator—specify
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 operator—specify 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
operator—specify 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
operator—specify 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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