- E -
Friday
January 26, 1996
Part El
Environmental
Protection Agency
40 CFR Parts 239 and 258
State/Tribal Permit Program Adequacy
Determination: Municipal Solid Waste
Facilities; Proposed Rule
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Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 239 and 258
[FRL-5400-5/EPA/530-Z-95-010]
BIN 2050-AD03
Subtitle D Regulated Facilities; State/
Tribal Permit Program Determination
of Adequacy; State/Tribal
Implementation Rule (STIR)
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
SUMMARY: This proposed rule is
designed to guide States and Indian
Tribes in developing, implementing,
and revising programs to issue and
enforce permits for facilities which
landfill discarded materials known as
"municipal solid waste (MSW)".
On October 9, 1991, the
Environmental Protection Agency (EPA)
published the "Solid Waste Disposal
Facility Criteria," a set of standards
prescribing how MSW landfills are to be
constructed and operated. States are to
adopt and implement permit programs
to ensure that MSW landfills comply
with these standards. EPA is to review
the State permit programs and
determine whether they are adequate.
The STIR establishes criteria and
procedures which EPA will use to
determine whether the State permit
programs are adequate to ensure
compliance with the Solid Waste
Disposal Facility Criteria. While the
Disposal Facility Criteria automatically
apply to all MSW landfills, States with
permit programs deemed adequate have
the authority to provide some flexibility
to landfill owners and operators in
meeting the criteria. To date, using the
draft STIR as guidance, EPA has
approved more than 40 state permit
programs. This proposal is designed to
minimize disruption of existing state/
Tribal programs. Eventual promulgation
of a final STIR is not expected to disrupt
approved programs, and will provide a
flexible framework for future program
modifications.
The Resource Conservation and
Recovery Act (RCRA) is the legal basis
for the proposed STIR. RCRA requires
States to adopt and implement permit
programs to ensure compliance with the
Federal Disposal Facility Criteria and
requires EPA to determine the adequacy
of the State permit programs. So that
management of MSW is equally
protective on Indian lands, the STIR
also gives Indian Tribes the right to
apply for EPA approval of their landfill
permit programs.
DATES: Comments on this proposed rule
must be submitted on or before April 25
1996.
ADDRESSES: Commentors must send an
original and two copies of their
comments to: Docket Clerk, mailcode:
5305w, Docket No. F-96-STIP-FFFFF,
U.S. Environmental Protection Agency
Headquarters, 401 M Street SW.;
Washington, D.C. 20460. Comments
should include the docket number F-
96-STIP-FFFFF. The public docket is
located at Crystal Gateway, North #1,
1235 Jefferson Davis Highway, First
Floor, Arlington , VA and is available
- for viewing from 9 a.m. to 4 p.m.,
Monday through Friday, excluding
Federal holidays. Appointments may bfe
made by calling (703) 603-9230. Copies
cost $0.15/page. Charges under $25.00
are waived.
FOR FURTHER INFORMATION CONTACT: For
general information contact the RCRA
Hotline, Office of Solid Waste, U.S.
Environmental Protection Agency
Headquarters, 401 M Street SW.;
Washington, D.C. 20460, (800) 424-
9346; TDD (800) 553-7672 (hearing
impaired); in Washington, D.C.
metropolitan area the number is (703)
412-9810, TDD (703) 486-3323.
For more detailed information contact
Mia Zmud, Office of Solid Waste
(mailcode 5306W), U.S. Environmental
Protection Agency Headquarters, 401 M
Street SW., Washington, D.C. 20460;
(703) 308-7263.
SUPPLEMENTARY INFORMATION: Copies of
the following document are available
from the Docket Clerk, mailcode 5305,
U.S. Environmental Protection Agency
Headquarters, 401 M Street SW.;
Washington, D.C. 20460, (202) 475-
9327.
Preamble Outline
I. Authority
II. Background
A. Approach
B. Part 258 Revised Criteria
C. Non-municipal solid waste criteria
D. Rationale for Today's Proposed Rule
E. Part 239 Determination of Permit
Program Adequacy
F. Differences from Subtitle C
Authorization Process
G. Indian Lands
H. Enforcement
III. Section-by-Section Analysis of 40 CFR
Part 239
A. Purpose and Scope (Subpart A)
B. Components of Program Application
(Subpart B)
C. Requirements for Adequate Permit
Programs (Subpart C)
D. Adequacy Determination Procedures
(Subpart D)
E. Changes to Part 258
IV. Economic and Regulatory Impacts
A. Regulatory Impact Analysis
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act
I. Authority
EPA is proposing these regulations
under the authority of sections
2002(a)(l) and 4005(c) of the Resource
Conservation and Recovery Act of 1976,
as amended by HSWA (RCRA or the
Act). Section 4005(c)(l)(B) requires each
State to develop and implement a
permit program to ensure that facilities
that may receive hazardous household
waste or hazardous waste from
conditionally exempt small quantity
generators are in compliance with the
Subtitle D Federal revised criteria
promulgated under section 4010(c).
Section 4005(c)(l)(C) further directs
EPA to determine whether State permit
programs are adequate to ensure
compliance with the Subtitle D Federal
revised criteria. Section 2002(a)(l) of
RCRA authorizes EPA to promulgate
regulations necessary to carry out its
functions under the Act.
II. Background
A. Approach
The regulation of solid waste
management historically has been a
State and local concern. EPA fully
intends that States/Tribes will maintain
the lead role in implementing the
Subtitle D Federal revised criteria as
promulgated. This proposal is
consistent with general EPA policy that
places primary responsibility for
coordinating and implementing many
environmental protection programs with
the States/Tribes. While a State/Tribe
may simply adopt the Federal
standards, they also may choose to take
advantage of the significant flexibility
designed into today's proposal.
Following are three illustrations of
how today's proposal is designed to
cause a minimum disruption of existing
State/Tribal permit programs.
First, EPA's goal is for States/Tribes to
apply for and receive approval of their
Subtitle D permit programs. Today's
proposal reflects this policy by requiring
elements of basic authority, rather than
prescriptive programmatic elements.
This approach establishes a framework
that allows States/Tribes flexibility in
the structure of their individual permit
programs, while requiring that States/
Tribes have the necessary authority to
ensure that Subtitle D facilities comply
with the Federal revised criteria.
Further, today's proposal does not
define how a State/Tribe must
implement the basic elements required
in the Federal revised criteria for
Subtitle D facilities and today's
proposal. States/Tribes may use their
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Federal Register / Vol. 61, No. 18 / Friday, January 26. 1996 / Proposed Rules
2585
own design standards (e.g., develop an
alternative liner design), performance
standards (e.g., specify a performance
standard for a liner design such as
sotting the maximum allowable
contaminant level at a relevant point of
compliance), or a combination of these
two approaches.
Second, in assessing the States'/
Tribes' authorities, EPA generally will
defer to the State/Tribal certifications ^of
legal authority and not "second guess"
the applicants. However, if EPA receives
information indicating that the
applicant's legal certification is
inaccurate, EPA reserves the right to
conduct its own review of the
applicant's legal certification and
authorities. .
Third, a State's/Tribe's guidance
documents may be used to supplement
laws and regulations if the State's/
Tribe's legal certification demonstrates
that the guidance can be used to
develop enforceable permits which will
ensure compliance with the Subtitle D
Federal revised criteria. Thus, in some
cases, the specific technical
requirements of the Subtitle D Federal
revised criteria need not be contained in
State/Tribal law or regulations. By
allowing the States/Tribes to use
guidance in the development of
enforceable permits where allowed by
Stale/Tribal law, today's proposal
mitigates the problem of States/Tribes
unnecessarily having to restructure their
existing laws/regulations.
B. Part 258 Revised Criteria
On October 9,1991, EPA promulgated
the Subtitle D Federal revised criteria
for MSWLFs (40 CFR Parts 257 and 258
Solid Waste Disposal Facility Criteria;
Final Rule). These Federal revised
criteria establish minimum Federal
standards to ensure that MSWLFs are
designed and managed in a manner that
is protective of human health and the
environment. The Part 258 Federal
revised criteria include location
restrictions and standards for design,
operation, ground-water monitoring,
corrective action, financial assurance,
and closure/post-closure care of
MSWLFs. , . ,
The 40 CFR Part 258 Federal revised
criteria are self-implementing on their
effective date for all MSWLFs within the
jurisdiction of the United States. Every
standard in 40 CFR Part 258 is designed
to bo implemented by the owner or
operator with or without oversight or
participation by a regulatory agency
(i.e., through a permit program). RCRA
Section 4005(c)(2)(A) authorizes EPA to
enforce 40 CFR Part 258 in those cases
where the Agency has determined the
Stale/Tribal permit program to be
inadequate. RCRA Section 7002 also
authorizes citizen suits to ensure
compliance with the Federal revised
criteria.1
The Federal revised criteria for
MSWLFs recognize the regulatory value
of the permitting system which provides
a mechanism for States/Tribes to
interact with the public and with
owners/operators on site-specific issues
before and after permit issuance. Within
the bounds established by authorizing
statutes and regulations, permitting
agencies are able to interact with facility
owners/operators, provide opportunity
for public review and input and, at the
discretion of the State/Tribe, tailor
protective permit conditions and
requirements to facility-specific
characteristics. Once EPA has
determined that State/Tribal permit
programs are adequate to ensure
compliance with 40 CFR Part 258, the
Part 258 Federal revised criteria provide
approved States/Tribes the option of
allowing MSWLF owners/operators
flexibility in meeting the requirements
of Part 258.
The Part 258 MSWLF regulations thus
provide approved States/Tribes the
option of making site-specific
determinations regarding MSWLF
design and other requirements of Part
258 under specific conditions. For
example, approved States/Tribes that
adopt the Federal performance standard
may allow any final cover design if the
owner/operator demonstrates that the
design meets the performance standard
of 40 CFR Part 258. Another example of
such broad flexibility is the option to
approve an alternative liner design
instead of the prescribed composite
design specified in § 258.40(a)(2), as
long as the alternative design meets the
performance standard described in
§258.40(a)(l).
In addition, the flexibility afforded to
an approved State/Tribe allows the
application of an'alternative liner design
on a State/Tribal-wide basis, so long as
that design meets the performance
standard in all locations throughout the
State/Tribe. This demonstration, by
necessity, would require the use of fate
and transport modeling to demonstrate
that the alternative design could meet
the performance standard in "worst-
case" scenarios. Where there is no
approved permit'program, there is no
mechanism by which a regulatory
agency can exerqise flexibility in
developing facility-specific conditions
and requirements adequate to ensure
compliance with 40 CFR Part 258.
1 Nothing in this preamble or rule proposed today
is intended to affect the extent of a State or Tribe's
sovereign immunity to suit under RCRA.
C. Non-Municipal Solid Waste Criteria
EPA plans to amend existing
regulations to address all non-municipal
solid waste facilities that may receive
conditionally exempt small quantity
generator (CESQG) waste. In accordance
with a settlement agreement with the
Sierra Club filed with the court on
January 31,1994, the Agency proposed
these regulations on June 12,1995 and
will publish final regulations by July 1,
1996. Sierra Club v. Browner, Civ. No.
93-2167 (D.DC). Specific requirements
relating to the approval of State/Tribal
non-municipal solid waste permit
programs needed to implement these
amendments may be included in that
rulemaking as appropriate.
D. Rationale for Today's Proposed Rule
Due to the significant flexibility that
is only available in approved States/
Tribes, the Agency made active efforts
to encourage States/Tribes to seek early
approval of their MSWLF permit
programs. EPA conducted a pilot
program with four States and EPA
Regions to streamline the approval
process and obtain early feedback from
States and EPA Regions. The draft STIR
was used as guidance in interpreting the
statutory authorities and requirements,
in identifying the necessary components
of an application, and in making
adequacy determinations of State/Tribal
MSWLF permit programs. These early
efforts by EPA were successful in
encouraging States/Tribes to apply for
approval of their MSWLF permit
programs. To date, EPA has approved
over 40 State/Tribal MSWLF permit
programs and anticipates approval of
the remaining States in the near future.
While EPA has proceeded to approve
State/Tribal permit programs using the
draft STIR as guidance, the Agency -
believes it remains necessary to
promulgate today's proposal to provide
a framework for modifications of
approved permit programs, to establish
procedures for withdrawal of approvals
allowing ample opportunity for EPA
and the State/Tribe to resolve problems,
and to establish the process for future
program approvals (e.g., non-municipal
solid waste facilities that may receive
conditionally exempt small quantity
generator waste).
The Agency provided opportunities
for public comments and public
hearings on the State/Tribal MSWLF
permit programs that have been
approved to date and received few
significant comments on the criteria
used as a basis for approval. Today's
proposal establishes the same approval
procedures and standards used by the
Agency in approving those States/
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E. Part 239 Determination of Permit
Program Adequacy
1. Approval Procedures for State/Tribal
Permit Programs
Today's proposed rule establishes the
criteria and process for determining
whether State/Tribal permit programs
are adequate to ensure that regulated
facilities are in compliance with the
Subtitle D Federal revised criteria. EPA
Regional Administrators will make this
determination.
To secure an EPA determination of
adequacy under RCRA section 4005(c)
a State/Tribe must submit an
application for permit program approval
to the appropriate EPA Regional
Administrator for review. This proposed
rule describes the program elements to
be included in such an application and
sets forth the criteria EPA will use in
determining whether a State/Tribal
permit program is adequate. A more
detailed explanation of what EPA is
proposing to require of a State/Tribe
seeking a determination is found in the
following sections of this preamble.
2. Approval Procedures for Partial State/
Tribal Permit Programs
In view of the comprehensive nature
of Subtitle D Federal revised criteria it
is likely that some State/Tribal permit
programs will meet the procedural and
legal requirements of Part 239 but not
all of the technical requirements of the
Subtitle D Federal revised criteria
promulgated under § 4010(c) of RCRA.
These State/Tribal programs would
require a few revisions before the entire
program could be approved. As a result
they would need to delay submittal of
program approval applications until the
limited number of required statutory
regulatory, and/or guidance changes
were complete. This delay concerns the
Agency, because a delay of the final
adequacy determination while these
revisions were being made could place
a substantial, and often unnecessary,
financial burden on owners/operators
by withholding the flexibility provided
by the Subtitle D Federal revised criteria
m approved States/Tribes.
To mitigate this problem, EPA
included procedures for partial program
approval in this proposal. This allows
the Agency to approve those provisions
ot the State/Tribal permit program that
meet today's proposed requirements and
provides the State/Tribe time to make
necessary changes to the remaining
portions of its program. As a result,
owners/operators will be able to work
with the State/Tribal permitting agency
to take advantage of the Subtitle D
Federal revised criteria's flexibility for
those portions of the program which
have been approved. For example, if a
State/Tribe does not prohibit the open
burning of municipal solid waste, but
the remainder of the program is
approvable, the Agency could partially
approve that State/Tribal program.
Under this partial approval, the State/
Tribe would be approved for everything
but the open burning provisions.
Generally, the open burning provisions
may be enforced through citizen suits
against owners/operators. In addition,
where a citizen brings a concern to
EPA's attention, the Agency will
respond in an appropriate manner on a
case-by-case basis. In addition to the
enforcement authority the Agency
assumes upon determining that a State/
Tribal permit program is inadequate,
EPA retains enforcement authority
under RCRA Section 7003 to address
situations that may pose an imminent
and substantial endangerment to human
health or the environment. In addition,
EPA may also exercise enforcement
authority under Section 104(e) of the
Comprehensive Environmental
Response and Liability Act (CERCLA) in
situations where there is a reasonable
basis to believe there may be a release
or threat of release of a hazardous
substance, pollutant, or contaminant.
Section 239.11 of today's proposal
allows the Agency to approve either
partial or complete State/Tribal permit
programs. EPA intends to approve
partial permit programs only when the
State/Tribe has a few discrete technical
requirements to revise. Those States/
Tribes that need to make substantial
changes to their permit program are
encouraged to complete all necessary
program modifications before
submitting an application for approval.
In establishing the partial approval
process, EPA does not intend to create
a two-step process by which every
State/Tribe would first gain approval for
those parts of their permit program that
are currently adequate and then revise
the remainder of the program. A State/
Tribal permit program may be eligible
for partial approval if it meets all the
procedural and legal Part 239
requirements (i.e., application
components, enforcement, public
participation, compliance monitoring)
but does not meet all of the Part 239
technical requirements (e.g.,
requirements in 239.6). States/Tribes
applying for partial approval also must
include a schedule, agreed to by the
State/Tribe and the appropriate
Regional Administrator, for completing
the necessary changes to the laws,
regulations, and/or guidance to comply
with the remaining technical
requirements.
Part 239.1l(a)(2) of today's proposal
asserts that States/Tribes with partially
approved permit programs are approved
to implement only those portions of the
technical requirements included in the
partial approval. This means that any
flexibility provided by the Subtitle D
Federal revised criteria to approved
States/Tribes is not available to owners/
operators unless the partial program
approval includes those technical
provisions.
EPA is proposing an expiration date
tor partial approvals in order to assure
that States/Tribes will pursue full
program approval in a timely manner.
As such, the Agency views the partial
approval process as a temporary
measure to accelerate State/Tribal
program approval. The Agency believes
that providing two years is necessary
because the time required to make
changes in laws, regulations, and/or
guidance would differ on a case-by-case
basis. Also, some State legislatures meet
on a biennial basis, and two years
would provide States/Tribes additional
time to make required statutory changes
The Agency believes that allowing two
years provides ample time for States/
Tribes to execute the limited changes to
their laws, regulations, and/or guidance
necessary to achieve full program
approval. However, the Agency believes
it would be counterproductive to
determine an entire program inadequate
it a State/Tribe has cause to miss the
two-year deadline by a few weeks or
months. For this reason, the Agency is
proposing to accommodate State/Tribal
program development by providing a
mechanism to allow partial programs to
*-«.„ JJUJ.I.ICIJL JJ.LUglci.LIIi> tU
extend beyond the two-year deadline if
the State/Tribe can demonstrate cause to
their EPA Region.
States/Tribes that receive partial
approval should submit an amended
application meeting all requirements of
Part 239 and have that application
approved within two years of the
effective date of the final determination
tor partial program adequacy. States/
Tribes should be sensitive to this
deadline and submit an amended and
complete application well in advance to
allow Regions ample time to provide
opportunities for public participation, to
make tentative and final adequacy
determinations, and to publish these
determinations in the Federal Register.
It the State/Tribe can demonstrate that
it has sufficient cause for not meeting
the two-year deadline, the appropriate
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Regional Administrator may extend the
expiration date of the partial approval.
The Regional Administrator will
publish the expiration date extension
for the partial approval and a new date
for expiration in the Federal Register.
EPA believes that partial approvals ot
State/Tribal permit programs achieve
the goals of avoiding disruption of
existing State/Tribal permit programs,
providing flexibility to owners/
operators as soon as possible, and
ensuring that owners/operators comply
with the relevant technical criteria.
While States/Tribes must have the
authority to issue, monitor compliance
with, and enforce permits adequate to
ensure compliance with 40 CFR Part
258, the specific operating, design,
ground-water monitoring, and corrective
action requirements, as well as the
location restrictions and the other
requirements of the Part 258 Federal
revised criteria, need not be contained
in State/Tribal law or regulations. A
State's/Tribe's guidance documents may
bo used to supplement laws and
regulations. , , .-
State/Tribal guidance may be used it
the State/Tribe demonstrates in its legal
certification that the guidance will be
used to develop enforceable permits
which will ensure compliance with 40
CFR Part 258. Also, guidance only may
be used to supplement State/Tribal laws
and regulations; it cannot correct laws
and regulations that are inconsistent
with the guidance. For example, if a
State's/Tribe's laws or regulations
required three inches of earthen
material daily as a cover, the State/Tribe
could not meet the daily cover
requirement of 40 CFR Part 258.21 by
issuing guidance that owner/operators
apply six inches of earthen material at
the end of each operating day. The
narrative description of the State/Tribal
program, discussed below in the
section-by-section analysis of today's
proposal, must explain how the State/
Tribe will use guidance to develop
enforceable permits. This option gives
the States/Tribes added flexibility in
meeting the requirements of Part 239,
yet maintains the requirement that
States/Tribes have the authority to
ensure MSWLF owner/operator
compliance with Part 258. The
flexibility afforded the States/Tribes
should help limit the need to restructure
existing State/Tribal laws/regulations.
F. Differences From the Subtitle C
Authorization Process
Today's proposed approach for
determining the adequacy of State/
Tribal permit programs under § 4005(c)
of Subtitle D of RCRA differs from the
current approach taken for authorizing
State hazardous waste programs under
RCRA section 3006 of Subtitle C. These
differences in approach reflect
differences in the statutory framework
of each Subtitle.
Under Subtitle C, prior to
authorization of a State program, EPA
has primary responsibility for
permitting of hazardous waste facilities.
Federal law, including the issuance and
enforcement of permits, applies until
EPA authorizes ai State to operate the
State program in lieu of EPA operating
the Federal program. Subtitle C requires
authorized State programs to be at least
equivalent to and consistent with the
Federal program and other authorized
State programs and to have
requirements that are no less stringent
than the Federal Subtitle C
requirements. Once authorized, State
programs operate in lieu of the Federal
program and, if Federal enforcement of
requirements is necessary, EPA must
enforce the approved State's
requirements. EPA retains enforcement
authority under RCRA sections 3008,
3013, and 7003 :although authorized
States have primary enforcement
responsibility. ',
In contrast, under Subtitle D Congress
intended facility permitting to be a State
responsibility. Subtitle D does not
specifically authorize EPA to issue
Federal permits. EPA's current role
includes establishing technical design
and operating criteria for facilities,
determining the adequacy of State/
Tribal permit programs and enforcing
compliance with the Subtitle D Federal
revised criteria only after EPA
determines that the State/Tribal permit
program is inadequate. Subtitle D does
not provide EPA with enforcement
authority in States/Tribes pending an
adequacy determination or in States/
Tribes whose permit programs are
deemed adequate by EPA. In addition,
Subtitle D does not provide for State/
under RCRA Section 7003 to address
situations that may pose an imminent
and substantial endangerment to human
health or the environment. In addition,
EPA may also exercise enforcement
authority under Section 104(e) of
CERCLA in situations where there is a
reasonable basis to believe there may be
a release or threat of release of a
hazardous substance, pollutant, or
contaminant.
G. Indian Lands
EPA is extending to Indian Tribes the
same opportunity to apply for permit
program approval as is available to
States. To date, EPA has approved one
Tribal MSWLF permit program and
proposed approval for a second Tribal
program using the same review process
used in the State approvals. The draft
STIR was used as guidance in making
these early proposals, and the Agency
published a notice for each decision in
the Federal Register that included much
of the language found in today's
proposed rule (final approval for the
Campo Band of Mission Indians was
published on May 1, 1995, 60 FR at
21191; tentative approval for the
Cheyenne River Sioux Tribe was
published on April 7, 1994, 59 FR at
O LIU LI LJ.C f-f \J.\J**& ixv^i- £**v ••-.•—— —
Tribal requirements to operate "in lieu
of the Subtitle D Federal revised
criteria. Therefore, the Subtitle D
Federal revised criteria and State/Tribal
requirements operate concurrently
regardless of whether a State/Tribal
permit program is deemed adequate or
inadequate. Generally, the Subtitle D
Federal revised criteria may be enforced
through citizen suits against owners/
operators under Section 7002 of RCRA
even in approved States/Tribes. In
addition, where a citizen brings a
concern to EPA's attention, the Agency
will respond in an appropriate manner
on a case-by-base basis. In addition to
the enforcement authority the Agency
assumes upon determining that a State/
Tribal permit program is inadequate,
EPA retains enforcement authority
RR4.
Providing Tribes with the opportunity
to apply for approval of their MSWLF
permit programs is consistent with
EPA's Indian policy. This policy,
formally adopted in 1984, recognizes
Indian Tribes as the primary sovereign
entities for regulating the reservation
environment and commits the Agency
to working with Tribes on a
"government-to-government" basis to
effectuate that recognition. A major goal
of EPA's Indian Policy is to eliminate all
statutory and regulatory barriers to
Tribal implementation of Federal ""
environmental programs. Today's
proposal represents another facet of the
Agency's continuing commitment to the
implementation of this long-standing
In the spirit of Indian self-
determination and the government-to-
government relationship, EPA
recognizes that not all Tribes will
choose to exercise this option at this
time. Regardless of the choice made, the
Agency remains committed to providing
technical assistance and training when
possible to Tribal entities as they work
to resolve their solid waste management
concerns. ,
Under Section 4005, EPA may enforce
40 CFR Part 258 only after it determines
that a State permit program is
inadequate. However, Congress did not
specifically address implementation of
Subtitle D on Indian lands.
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1. Authority
States generally are precluded from
enforcing their civil regulatory programs
on Indian lands, absent an explicit
Congressional authorization. California
v. Cabazon Band of Mission Indians,
480 U.S. 202 (1987). Yet, under RCRA
Subtitle D, EPA generally is precluded
from enforcing the Federal revised
criteria as well unless EPA determines
that a State or Tribal permit program is
inadequate to ensure compliance with
the Federal revised criteria.
Furthermore, Congress has not yet
created an explicit role for Tribes to
implement the Subtitle D program, as it
has done under most other major
environmental statutes amended since
1986 (Safe Drinking Water Act,
CERCLA, Clean Water Act, Clean Air
Act).
There exist three principal
approaches for effectively ensuring
comprehensive, flexible, and efficient
implementation of the Subtitle D
Federal revised criteria on Indian lands:
(1) Allow Tribes to demonstrate the
existence of adequate Subtitle D permit
programs in the same manner as States
under today's proposed rule; (2) make
determinations on a case-by-case basis
on whether a Tribe or a State has
adequate authority to ensure
compliance with Subtitle D Federal
revised criteria on Indian lands; or, (3)
make a blanket determination as
appropriate that States lack the
authority to implement their programs
on Indian lands, that there are no
adequate permit programs in place on
Indian lands, and that EPA may enforce
Subtitle D Federal revised criteria
directly on Indian lands in light of this .
determination.
EPA prefers the first approach, under
which an Indian Tribe may seek
approval by demonstrating the existence
of an adequate permit program in the
same manner as a State pursuant to the
procedures specified in today's
proposal, including a demonstration of
jurisdiction. Where no adequate permit
program is demonstrated, EPA may
enforce the Subtitle D Federal revised
criteria directly upon determination that
the Tribal program is not adequate to
ensure compliance with the Subtitle D
Federal revised criteria.
Tribes that are seeking approval may
opt to enter into a memoranda of
agreement, or other agreement
mechanisms, with another
governmental entity (State, Tribe, or
local government) to provide additional
necessary expertise or resources to the
Tribe. For example, a Tribe may arrange
to use a ground-water monitoring expert
the other governmental entity has on
board, rather than hiring a Tribal
ground-water monitoring expert. Even
though a Tribe in this case would be
relying in part on another governmental
entity's expertise, as it would in any
other contractor or agency relationship,
the Tribe would seek approval of its
program and would continue to exercise
its permitting authority. This type of
agreement must specify the relevant
roles of each party to the agreement. The
Tribe seeking approval would need to
meet all other requirements outlined in
this proposed rule and include copies of
all relevant agreements in its
application for program approval. In the
context of making adequacy
determinations, EPA will review such
agreements to assure that they will
ensure compliance with 40 CFR Part
258.
EPA recognizes, however, that there
may be circumstances where a State
seeks to assert jurisdiction in Indian
Country. Where a State can demonstrate
jurisdiction on Indian lands, the State
seeking approval may propose, as part
of its permit program approval
application, to ensure compliance on
Indian lands. However, the burden a
State must meet to demonstrate its
authority to regulate Subtitle D
regulated facilities on Indian lands is a
high one. See, e.g., 53 FR 43080
(October 25, 1988).
EPA does not favor the third
approach, because it requires EPA to
step in to enforce the program without
consideration of whether the Tribe can
adequately do so. Under this approach,
owners/operators of MSWLFs on Indian
lands would not be able to obtain the
flexibility and lower costs available in
jurisdictions with approved permit
programs.
EPA believes that adequate authority
exists under RCRA to allow Tribes to
seek an adequacy determination for
purposes of Sections 4005 and 4010.
EPA's interpretation of RCRA is
governed by the principles of Chevron,
USA v. NRDC, 467 U.S. 837 (1984).
Where Congress has not explicitly stated
its intent in adopting a statutory
provision, the Agency charged with
implementing that statute may adopt
any interpretation which, in the
Agency's expert judgment, is reasonable
in light of the goals and purposes of the
statute as a whole. Id. at 844.
Interpreting RCRA to allow Tribes to
apply for an adequacy determination
satisfies the Chevron test.
RCRA does not explicitly define a role
for Tribes under Sections 4005 and 4010
and reflects an undeniable ambiguity in
Congressional intent. Indeed, the only
mention of Indian Tribes anywhere in
RCRA is in Section 1004(13), a part of
the "Definitions" of key terms in RCRA.
Section 1004(13) defines the term
"municipality" to mean:
A city, town, borough, county, parish,
district or other public body created by or
pursuant to State law, with responsibility for
• the planning or administration or solid waste
management, or any Indian tribe or
authorized tribal organization or Alaska
Native village or organization[.]
Id. (emphasis added). The term
"municipality", in turn, is used in
Sections 4003(c)(l)(C), 4008(a)(2), and
4009(a) of RCRA with reference to the
availability of certain Federal funds and
technical assistance for solid waste
planning and management activities by
municipalities. Section 4003(c)(l)(C)
specifies that States are to use Subtitle
D grant funds to, among others, assist
municipalities in developing municipal
waste programs; Sections 4008(a)(2) and
4008(d)(3) authorizes EPA to provide
financial and technical assistance to
municipalities on solid waste
management; Section 4009(a) authorizes
EPA to make grants to States to provide
financial assistance to small
municipalities. Thus, Congress
apparently intended to make explicit
that Indian Tribes could receive funds
and assistance when available in the
same manner as municipal
governments. However, Congress did
not explicitly recognize any other role
for Tribes under other provisions. There
is no accompanying legislative history
which explains why Indian Tribes were
included in Section 1004(13) and
nowhere else.
EPA does not believe that Congress,
by including Indian Tribes in Section
1004(13), intended to prohibit EPA from
allowing Tribes to apply for an
adequacy determination under Subtitle
D. First of all, it is clear that Indian
Tribes are not "municipalities" in the
traditional sense. Indian Tribes are not
"public bodies created by or pursuant to
State law." Indeed, Indian Tribes are not
subject to State law except in very
limited circumstances. Cabazon, supra.
Indian Tribes are sovereign
governments. Worcester v. Georgia, 31
U.S. (10 Pet.) 515 (1832). There is no
indication in the legislative history that
Congress intended to abrogate any
sovereign Tribal authority by defining
them as "municipalities" under RCRA,
i.e., that Congress intended Section
1004(13) to subject Indian Tribes to
State law for RCRA purposes. Moreover,
it is a well-established principle of
statutory construction that Federal
statutes which might arguably abridge
Tribal powers of self-government must
be construed narrowly in favor of
retaining Tribal rights. F. Cohen,
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2589
Handbook of Federal Indian Law, 224
(1081); See, e.g., Ramah Navajo School
Board v. Bureau of Revenue, 458 U.S.
832, 846 (1982).
EPA believes that inclusion of Indian
Tribes in Section 1004(13) was a
definitional expedient, to avoid having
to include the phrase "and Indian tribes
or tribal organizations or Alaska Native
villages or organizations" wherever the
term "municipality" appeared, not to
change the sovereign status of Tribes for
RCRA purposes. In particular, the
references in Sections 4003(c) and
4009(a) to state "assistance" to
municipalities does not suggest that
Congress intended Indian Tribes to be
subject to State governmental control.
Furthermore, given the limited number
of times the term "municipality"
appears in RCRA, it does not appear that
Congress was attempting to define a role
for Tribes for all potential statutory
purposes.
The ambiguity in RCRA regarding
Indian Tribes also is evident from the
structure of the 1984 Amendments. As
mentioned earlier, Congress expressed a
strong preference for a State lead in
ensuring compliance \vith the Subtitle D
Federal revised criteria, in that Section
4005(c) allows EPA to enforce the
criteria only after a finding of
inadequacy of the State permit program.
Yet, the legislative history of the 1984
Amendments does not suggest that
Congress intended to authorize States to
implement such programs on Indian
lands or that Congress considered the
legal principle that States generally are
precluded from such implementation.
Cf. Washington Dept. of Ecology v. EPA,
752 F.2d 1465 (9th Cir. 1985) (RCRA
Subtitle C does not constitute an
explicit delegation of authority to States
to implement hazardous waste programs
on Indian lands); accord, Nance v. EPA,
745 F.2d 701 (9th Cir. 1981). Thus,
Congress has otherwise put States in a
primary role for Subtitle D permit
programs, yet on Indian lands has failed
lo define how Tribes participate where
Stales lack authority. EPA believes it
necessary to harmonize the conflicts
and resolve the ambiguities created by
these provisions.
EPA concludes that interpreting
Sections 4005,4008, and 4010 to allow
Indian Tribes to seek an adequacy
determination is reasonable.2 Several
*EPA noios that tho arguments set forth below
also may apply to othor RCRA programs/statutory
nocllons. Including Suction 3006 (EPA authorization
ofSMto hazardous waste programs), although there
nro unique considerations associated with each
program. EPA currently is considering whether to
allow Tribes to apply for authorization to
Implement other RCRA programs and will revisit
tho isauo In future Federal Register notices.
factors enter into this determination.
First, as discussed in the previous
paragraph, this approach is consistent
with Subtitle D, because it preserves
Congressional intent to limit the Federal
government's role in Subtitle D permit
programs. Absent the opportunity for
Tribes to seek a determination of
adequacy, there would be few or no
adequate permit programs in place on
Indian lands (because the State lacked
the authority and the Tribe could not
apply for progranvapproval).
Failure to approve Tribal programs
would deny Tribes the option available
to approved States of granting their
owners and operators flexibility in
meeting the requirements of the Subtitle
D Federal revised criteria. Under Part
258, the Federal revised criteria would
be implemented without benefit of an
EPA approved permit process and EPA
would take enforcement actions as
appropriate. With this proposal,
however, Subtitle D regulated facilities
on Indian Lands could be under the
jurisdiction of the closest sovereign with
permitting and enforcement authority,
the Tribe, rather than the Federal
government.
In the case of other environmental
statutes (e.g., the Clean Water Act), EPA
has worked to revise them to define
explicitly the role, for Tribes under these
programs. Yet, EPA also has stepped in
on at least two occasions to allow Tribes
to seek program approval despite the
lack of an explicit Congressional
mandate. Most recently, EPA recognized
Indian Tribes as the appropriate
authority under the Emergency Planning
and Community Right-to-Know Act
(EPCRA), despite silence on the Tribal
role under EPCRA. 55 FR 30632 (July
26,1990). EPA reasoned that since
EPCRA has no federal role to backup
State planning activities, failure to
recognize Tribes as the authority under
EPCRA would leave gaps in emergency
planning on Indian lands. 54 FR 13000-
01 (March 29,1989).
EPA filled a similar statutory gap
much earlier as Well, even before
development of its formal Indian Policy.
In 1974, EPA promulgated regulations
which authorized Indian Tribes to
redesignate the level of air quality
applicable to Indian Lands under the
Prevention of Significant Deterioration
(PSD) program of the Clean Air Act in
the same manner, that States could
redesignate for other lands. See Nance
v. EPA (upholdirig regulations). EPA
promulgated this1 regulation despite the
fact that the Clean Air Act at that time
made no reference whatsoever to Indian
Tribes or their status under the Act.3
One Court already has recognized the
reasonableness of EPA's actions in
filling such regulatory gaps on Indian
lands. In Nance, the U.S. Court of
Appeals for the Ninth Circuit affirmed
EPA's PSD redesignation regulations
described in the previous paragraph.
The Court found that EPA could
reasonably interpret the Clean Air Act to
allow for Tribal redesignation, rather
than allowing the States to exercise that
authority or exempting Indian lands
from the redesignation process. 745 F.2d
713. The Court noted that EPA's rule
was reasonable in light of the general
existence of Tribal sovereignty over
activities on Indian Lands. Id. at 714.
Today's proposal is analogous to the
rule upheld in Nance. EPA is proposing
to fill a gap in jurisdiction on Indian
lands. As with the redesignation
program, approving Tribal MSWLF
permit programs ensures that the
Federal government is not the entity
exercising authority that Congress
intended to be exercised at a more local
level. Furthermore, the case law
supporting EPA's interpretation is even
stronger today than at the time of the
Nance decision. First, the Supreme
Court reaffirmed EPA's authority to
develop reasonable controlling
interpretations of environmental
statutes. Chevron, supra. Second, the
Supreme Court emphasized since Nance
that Indian Tribes may regulate
activities on Indian Lands, including
those of non-Indians, where the conduct
directly threatens the health and safety
of the Tribe or its members. Montana v.
United States, 450 U.S. 544, 565 (1981).
In the case of Subtitle D regulated
facilities, EPA believes that improperly
maintained facilities would not be
protective of human health (including
that of Tribal members) and the
environment (including Indian lands).
Tribes are likely to be able to assert
regulatory authority over facilities on
Indian lands to.protect these interests.
Allowing Tribes to seek adequacy
would reflect general principles of
Federal Indian law. Thus, as in Nance,
EPA believes that allowing Tribes to
apply for program approval reflects the
sovereign authority of Tribes under
Federal law.
2. Jurisdiction
To have its Subtitle D permit program
deemed adequate by EPA, a Tribe must
3 Congress ratified EPA's regulation in 1977 by
explicitly authorizing Tribes to make PSD
redesignations; the 1990 Amendments to the Act
authorize EPA to allow Tribes to apply for approval
to implement any programs EPA deems
appropriate.
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have adequate authority over the
regulated activities. Indian reservations
include lands owned in fee by non-
Indians. Pursuant to Montana v. U.S.,
450 U.S. 544 (1981), Tribes have
jurisdiction over Indian lands owned by
Indians. However, the extent of Tribal
authority to regulate activities by non-
Indians on fee lands has been the
subject of considerable discussion. The
test for civil regulatory authority over
non-member owned fee lands within
Indian reservations was stated in
Montana v. U.S., 450 U.S. 544, 565-66
(1981) (citations omitted):
To be sure, Indian tribes retain inherent
sovereign power to exercise some forms of
civil jurisdiction over non-Indians on their
reservations, even on non-Indian fee lands. A
tribe may regulate ... the activities of non-
members who enter consensual relationships
with the tribe or its members, through
commercial dealing, contracts, leases, or
other arrangements. ... A tribe may also
retain inherent power to exercise civil
authority over the conduct of non-Indians on
fee lands within its reservation when that
conduct threatens or has some direct effect
on the political integrity, the economic
security, or the health or welfare of the tribe.
In Brendale v. Confederated Tribes
and Bands of the Yakima Indian
Nation, 492 U.S. 408 (1989), the Court
applied this test. Both the State of
Washington and the Yakima Nation
asserted authority to zone non-Indian
real estate developments on two parcels
within the Yakima reservation, one in
an area that was primarily Tribal, the
other in an area where much of the land
was owned in fee by nonmembers.
Although the Court analyzed the issues
and the appropriate interpretation of
Montana at considerable length, the
nine members split 4:2:3 in reaching the
decision that the Tribe should have
exclusive zoning authority over
property in the Tribal area and the State
should have exclusive zoning authority
over non-Indian owned property in the
fee area.
Specifically, the Court recognized
Tribal authority over activities that
would threaten the health and welfare
of the Tribe, 492 U.S. at 443-444
(Stevens, J., writing for the Court); id. at
449-450 (Blackmun, J. concurring).
Conversely, the Court found no Tribal
jurisdiction where the proposed
activities "would not threaten the
Tribe's * * * health and welfare." Id. at
432 (White, J., writing for the Court).
Given the lack of a majority rationale,
the primary significance of Brendale is
in its result, which was fully consistent
with Montana v. United States.
In evaluating whether a Tribe has
authority to regulate a particular activity
on land owned in fee by nonmembers
but located within a reservation, EPA
will examine the Tribe's authority in
light of the evolving case law as
reflected in Montana and Brendale and
applicable Federal law. The extent of
such Tribal authority depends on the
effect of that activity on the Tribe. As
discussed above, in the absence of a
contrary statutory policy, a Tribe may
regulate the activities of non-Indians on
fee lands within its reservation when
those activities threaten or have a direct
effect on the political integrity, the
economic security, or the health or
welfare of the Tribe. Montana, 450 U.S.
at 565-66.
However, as discussed by EPA in the
context of the Clean Water Act, the
Supreme Court, in a number of post-
Montana cases, has explored several
criteria to assure that the impacts upon
Tribes of the activities of non-Indians on
fee land, under the Montana test, are
more than de minimis, although to date
the Court has not agreed, in a case on
point, on any one reformulation of the
test. See 56 FR 64876, 64878 (December
12,1991). In response to this
uncertainty, the Agency will apply, as
an interim operating rule, a formulation
of.the Montana standard that will
require a showing that the potential
impacts of regulated activities of non-
members on the Tribe are serious and
substantial. See 56 FR at 64878. Thus,
EPA will require that a Tribe seeking
RCRA Subtitle D permit program
approval demonstrate jurisdiction, i.e.,
make a showing that the potential
impacts on the Tribe from solid waste
management activities of non-members
on fee lands are serious and substantial.
The choice of an Agency operating
rule containing this standard is taken
solely as a matter of prudence in light
of judicial uncertainty and does not
reflect an Agency endorsement of this
standard per se. See 56 FR at 64878.
Moreover, as discussed below, the
Agency believes that the activities
regulated under the various
environmental statutes, including
RCRA, generally have potential direct
impacts on human health and welfare
that are serious and substantial. As a
result, the Agency believes that Tribes
usually will be able to meet the
Agency's operating rule, and that use of
such a rule by the Agency should not
create an improper burden of proof on
Tribes.
Whether a Tribe has jurisdiction over
activities by nonmembers will be
determined case-by-case, based on
factual, Tribal-specific findings. The
determination as to whether the
required effect is present in a particular
case depends on the circumstances.
Nonetheless, the Agency also may
take into account the provisions of
environmental statutes and any
legislative findings that the effects of the
activity are serious and substantial in
making a generalized finding that Tribes
are likely to possess sufficient inherent
authority to control environmental
quality in Indian Country. See, e.g.,
Keystone Bituminous Coal Ass'n v.
DeBenedictis, 480 U.S. 470, 476-77 and
nn.6, 7 (1987). The Agency also may
rely on its special expertise and
practical experience regarding the
importance of proper solid waste
management to the protection of Tribal
environments and the health and
welfare of Tribal members. As a result,
the reservation-specific demonstration
required of a Tribe may, in many cases,
be relatively simple.
The Agency believes that
Congressional enactment of RCRA
establishes a strong Federal interest in
effective management of solid waste.
For example, Congress has stated that
"the disposal of solid waste * * * in or
on the land without careful planning
and management can present a danger
to human health and the environment"
and that unsound solid waste disposal
practices "have created greater amounts
of air and water pollution arid other
problems for the environment and
health." RCRA § 1002(b)(2), (3), 42
U.S.C. 6901(b) (2), (3). Congress
recognized that potential hazards from
mismanagement of solid waste disposal
facilities include "fire hazards; air
pollution (including reduced visibility);
explosive gas migration; surface and
ground-water contamination; disease
transfer (via vectors such as rats and
flies); personal injury (to unauthorized
scavengers); and, aesthetic blight."
House Report to accompany H.R. 14496,
September 9, 1976 at 37. EPA has
confirmed these Congressional
observations.4
EPA notes that, where solid waste
affects ground water which has
pathways that allow it to migrate
readily, it would be practically very
difficult to separate'out the effects of
solid waste disposal on non-Indian fee
land within a reservation from those on
Tribal portions. In addition, EPA notes
that many of the environmental
problems caused by mismanagement of
solid waste (e.g., ground-water
4 See, e.g., USEPA, OSW, Case Studies on
Ground-Water and Surface Water Contamination
from Municipal Solid Waste Landfills—Criteria for
Solid Waste Landfills (40 CFR Part 258) Subtitle D
of RCRA, July 1988, EPA//530-SW-88-040;
USEPA, OSW, Operating Criteria (Subpart C)—
Criteria for Solid Waste Landfills (400 CFR Part
258) Subtitle D of RCRA, July 1988, EPA/530-SW-
88-037.
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2591
contamination or the contamination of
surfaces water through uncontrolled run-
off) by their nature present potential
direct impacts that are serious and
substantial in areas that are outside the
place where the solid waste activity
originally occurred. In other words, any
environmental impairment that occurs
on, or as a result of, solid waste
activities by non-members on fee lands
within the reservation is likely to
present direct impacts to Tribal
environments, health, and welfare that
are serious and substantial. EPA also
believes that a "checkerboard" system
of regulation, whereby the Tribe and
State split up regulation of solid waste
on Indian lands, would exacerbate the
difficulties of assuring compliance with
RCRA requirements.
In light of the Agency's statutory
responsibility for implementing the
environmental statutes, its
interpretations of the intent of Congress
regarding Tribal management of solid
waste within the reservation are entitled
to substantial deference. Washington
Dcp't of Ecology v. EPA, 752 F.2d 1465,
1469 (9lh Cir. 1985); see generally
Chevron, USA, Inc. v. MDC, 467 U.S.
837,843-45 (1984).
The Agency also believes that the
effects on Tribal health and welfare
necessary to support Tribal regulation of
non-Indian activities on Indian lands
may bo easier to establish in the context
of environmental regulation than with
regard to zoning, which was at issue in
Brondale. There is a significant
distinction between land use planning
and environmental regulation of solid
waste under RCRA. The Supreme Court
lias explicitly recognized such a
distinction: "Land use planning in
essence chooses particular uses for the
land; environmental regulation * * *
does not mandate particular uses of the
land but requires only that, however the
land is used, damage to the environment
is kept within prescribed limits."
California Coastal Comm'n v. Granite
nock Co., 480 U.S. 572, 587 (1987). The
Court has relied on this distinction to
support a finding that States retain
authority to carry out environmental
regulation even in cases where their
ability to carry out general land use
regulation is preempted by federal law.
Id. at 587-589.
Further, management of solid waste
serves the purpose of protecting public
health and safety, which is a core
governmental function, whose exercise
is critical to self-government. The
special status of governmental actions to
protect public health and safety is well
established.5 By contrast, the power to
zone can be exercised to achieve
purposes which have little or no direct
nexus to public health and safety. See,
e.g., Brendale, 492 U.S. at 420 n.5
(White, J.) (listing broad range of
consequences of state zoning decision).
Moreover, solid waste may affect ground
water, which is mobile, freely migrating
from one local jurisdiction to another,
sometimes over large distances. By
contrast, zoning regulates the uses of
particular properties with impacts that
are much more likely to be contained
within a given local jurisdiction.
The process that me Agency will use
for Tribes to demonstrate their authority
over non-members on fee lands includes
a submission of a statement in the Tribal
legal Certification (section 239.5(c))
explaining the legal basis for the Tribe's
regulatory authority. However, EPA also
will rely on its generalized findings
regarding the relationship of solid waste
management to Tribal health and
welfare. Thus, the Tribal submission
will need to make a showing of facts
that there are or may be activities
regulated under RCRA Subtitle D
engaged in by non^members on fee
lands within the territory for which the
Tribe is seeking approval, and that the
Tribe or Tribal members could be
subject to exposure to solid waste from
such activities through, e.g., ground
water, surface water, soil, and/or direct
contact. The Tribe must explicitly assert
jurisdiction, i.e., make a showing that
improper management of solid waste by
non-members on fee lands could have
direct impacts on the health and welfare
of the Tribe and its members that are
serious and substantial. Once a Tribe
meets this initial burden, EPA will, in
light of the facts presented by the Tribe
and the generalized statutory and
factual findings regarding the
importance of proper solid waste
management in Indian country, presume
that the Tribe has made an adequate
showing of jurisdiction over non-
member activities on fee lands, unless
an appropriate governmental entity (e.g.,
an adjacent Tribe or State) demonstrates
a lack of jurisdiction on the part of the
Tribe.
The Agency recognizes that
jurisdictional disputes between Tribes
and States can be complex and difficult
and that it will, in some circumstances,
be forced to address such disputes by
attempting to work with the parties in
a mediative fashion. However, EPA's
ultimate responsibility is protection of
5 This special status has been reaffirmed by all
nine justices in the context of Fifth Amendment
takings law. See Keystone Bituminous Coal Ass'n v.
DeBenedictis, 480 U.S. 470,491 n. 20 (1987); id. at
512 (Rehnquist, C.J., dissenting).
human health and the environment. In
view of the mobility of environmental
problems, and the interdependence of
various jurisdictions, it is imperative
that all affected sovereigns work
cooperatively for environmental
protection.
3. Permit Program Approval
EPA wishes to emphasize that Tribes
are not required to seek approval of
their Subtitle D permit programs.
Today's proposed rule states that a Tribe
may, by submitting an application for
EPA review, seek approval of its permit
program. If the Tribe does not wish to
seek adequacy, it simply need not
submit an application for that purpose.
This is in contrast to the requirement of
Section 4005(c)(l)(B), which requires
States to adopt and implement adequate
permit programs. EPA does not believe
it should impose a mandatory duty on
Tribes to adopt and implement permit
programs simply because some Tribes
may seek and receive a determination of
adequacy. Given that Congress has not
explicitly defined the Tribal role under
Subtitle D, EPA doubts that Congress
intended to impose a mandatory duty
on all Tribes. The decision of whether
or not to seek approval is an individual
Tribal determination based upon a
number of factors such as whether the
flexibility available to approved
programs offers the Tribe any advantage
and whether the Tribe has the
infrastructure and resources to apply for
and administer such a program.
Generally, Tribes that opt to seek ,
program approval must meet the same
approval criteria EPA requires States to
meet. Today's proposal recognizes the
uniqueness of Tribes and Indian lands,
however, and includes appropriate
requirements in certain sections of the
proposed rule. For example, due to the
lack of clarity of Tribal boundaries (or
lands over which the Tribe asserts
jurisdiction) in some cases, the
proposed rule requires Tribes to include
a map or legal description of these
lands. A more detailed explanation of
the requirements Tribes must meet to be
deemed adequate by EPA follows!'
Under the Clean Water Act, Safe
Drinking Water Act, CERCLA, and the
Clean Air Act, Congress has specified
certain criteria by which EPA is to
determine whether Tribes should be
allowed to seek program approval.
These criteria generally require that: (1)
The Tribe be recognized by the
Secretary of the Interior; (2) the Tribe
has an existing government exercising
substantial governmental duties and
powers; (3) the Tribe has adequate civil
regulatory jurisdiction over the subject
matter and entities to be regulated; and
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(4) the Tribe is reasonably expected to
be capable of administering the federal
environmental program.
Today's proposal recognizes the
importance and fully agrees with the
substance of these criteria. Therefore,
EPA has integrated the four criteria used
in other statutes into today's proposed
State/Tribal Implementation Rule and
has not established a pre-approval
process for Indian Tribes. Under
proposed Section 239.4(gj, a Tribe
seeking approval of its permit program
would address three of the above
criteria in its Narrative Description. As
proposed in Section 239.5(c), the Tribe
would address the fourth criterion,
adequacy of civil regulatory jurisdiction,
in its Legal Certification.
The process EPA is proposing for
Tribes to make this showing generally is
not an onerous one. The Agency has
simplified its process for determining
Tribal eligibility to administer
environmental programs under several
other environmental statutes. See 59 FR
64339 (December 14,1994) ("Treatment
as a State (TAS) Simplification Rule").
The proposed process for determining
eligibility for RCRA Subtitle D Programs
parallels the simplification rule.
Generally, the Tact that a Tribe has
met the recognition or governmental
function requirements under another
environmental statute allowing for
Tribal assumption of environmental
programs or grants (e.g., the Clean Water
Act, Safe Drinking Water Act, Clean Air
Act) will establish that the Tribe meets
those requirements for purpose of RCRA
Subtitle D permit program approval. To
facilitate review of Tribal applications,
EPA therefore requests that the Tribe, in
responding to proposed Section
239.4(g), demonstrate that it has been
approved for "TAS" (under the old
"TAS" process) or has been deemed
eligible to receive authorization (under
the simplified process) for any other
program. If a Tribe has not received
"TAS" approval or has not been deemed
eligible to receive authorization for any
.other program, the Tribe must
demonstrate, pursuant to proposed
Section 239.4(g), that it meets the
recognition and governmental function
criteria described above. Discussion on
how to make these showings can be
found at 59 FR 64339 (December 14,
1994).
Section 239.2 of today's proposal
defines Tribes to mean any Indian Tribe,
band, nation, or other organized group
or community which is recognized by
the Secretary of the Interior or Congress
and which exercises substantial
governmental duties and powers. While
the definition of Tribes in today's
proposal does not explicitly include
Alaska Native Villages, Alaska Native
entities (e.g., villages) may apply for
permit program approval. Alaska Native
Villages that are Federally-recognized
Tribes should not be excluded per se
from seeking EPA program approval,
although EPA does not mean to imply
that it has determined that any village
possesses the adequate civil regulatory
authority to operate a permit program.
Rather, such a determination would be
made on a case-by-case basis. Alaska
Native Villages that demonstrate that
their permit programs meet the
jurisdictional capacity and other
requirements of today's proposal will be
deemed adequate.
EPA believes that the Agency must
make a separate determination that a
Tribe has adequate jurisdictional
authority and administrative and
programmatic capability before it
approves each Tribal permit program.
Thus, today's proposal requires, under
proposed Section 239.5(c), that a Tribe
seeking program approval provide an
analysis of jurisdictional authorities in
the Tribal Legal Certification. The legal
certification must include a map or legal
description of the lands over which the
Tribe asserts jurisdiction and
documents supporting the Tribe's
assertion of jurisdiction. In addition, as
noted above, if the Tribe is asserting
jurisdiction over solid waste activities
conducted by non-members on fee lands
within Reservation boundaries, it must
explicitly show in its submission that
the activities of non-members on fee
lands regarding solid waste could have
direct effects on the health and welfare
of the Tribe that are serious and
substantial.
Finally, capability is a determination
that will be made on a case-by-case
basis. Ordinarily, the information
provided in the application for RCRA
Subtitle D permit program approval
submitted by any applicant, Tribal or
State, will be sufficient. For example,
today's proposal requires both States
and Tribes to discuss the staff resources
available to carry out the program.
Section 239.3 requires that States/Tribes
list the number of Subtitle D regulated
facilities under their jurisdiction and
discuss staff resources available to carry
out and enforce the program. However,
EPA may request, in individual cases,
that a Tribe provide additional narrative
or other documents showing that the
Tribe is capable of administering the
program for which it is seeking
approval. See 59 FR 44339 (December
14, 1994).
4. Financial Assurance for Tribally
owned MSWLFs
Part 258 exempts States that are
MSWLF owner/operators from the
financial assurance requirements
contained in 40 CFR Part Section
258.74. While today's proposal extends
to Tribes the same opportunity to apply
for permit program approval as it does
to States, EPA has no basis for believing
that Indian Tribes are exactly like States
in terms of their financial capabilities.
Thus, EPA is proposing that the
financial assurance requirement
contained in 40 CFR § 258.74 remain
applicable to Tribes.
EPA considered, during the
development of 40 CFR Part 258,
whether to exempt Tribes from financial
responsibility requirements and
whether Tribes have the requisite
financial strength and incentives to
cover the costs of closure, post-closure
care, and corrective action for known
releases. The Agency found that, due to
the variation among Tribes in terms of
size, financial capacity, and function
performed, exempting all Tribes from
the requirements would provide
insufficient protection of human health
and the environment. Requiring all
Tribes to demonstrate financial
assurance should encourage appropriate
advanced planning for the costs of
closure, post-closure care, and
corrective action for known releases by
these entities. See 56 FR 51106-07
(October 9,1991).
The Agency does not believe that the
financial assurance requirements
generally will be burdensome to Tribes
due to the relatively small part of the
total cost of compliance with today's
proposal imposed by the financial
assurance requirements. Mechanisms
that could be used to make this
demonstration, such as trust funds,
surety bonds, and letters of credit, are
discussed in 40 CFR Part 258.74. The
Agency is developing a special financial
test for local governments that also may
be utilized by Tribes (proposed on
December 27, 1993, 58 FRat 68353).
Financially strong Tribes, like
financially strong municipalities, will
be able to comply with the requirement-
using the local government financial
test. EPA intends to issue the financial
assurance test for local governments in
October 1995, well before the effective
date of the financial assurance
requirement (April 9,1997).
EPA solicits comment on whether
today's proposal incorporates the
appropriate criteria and procedures in
general for determining whether a
Tribe's permit program should be
deemed adequate by EPA. EPA also
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2593
invitos comment on appropriate terms
for Tribal positions equivalent to State
positions, such as Governor, Attorney
General, Agency, and Director.
H, Enforcement
Approved States/Tribes have primary
responsibility for ensuring compliance
with tho Subtitle D Federal revised
criteria through the enforcement
clement of their permit programs.
Because RCRA does not give EPA the
authority to take enforcement actions in
approved States/Tribes, adequate State/
Tribal enforcement authorities are
crucial to ensuring compliance. Under
RGRA 4005(c)(2)(A), the Agency has the
authority to enforce the Subtitle D
Federal revised criteria where it
determines the State/Tribal permit
program to be inadequate.
Independent of any governmental
enforcement program, citizens may seek
enforcement of the Subtitle D Federal
revised criteria by means of citizen suits
against owners/operators under Section
7002 of RCRA. Section 7002 provides
that any person may commence a civil
action on his or her own behalf against
any person who is alleged to be in
violation of any permit, standard,
regulation, condition, requirement,
prohibition, or order which has become
effective pursuant to RCRA. The self-
implementing Subtitle D Federal revised
criteria constitute the basis for
enforcement actions through potential
citizen suits against facilities that fail to
comply. In addition, where a citizen
brings a concern to EPA's attention, the
Agency will respond in an appropriate
manner on a case-by-case basis. In
addition to the enforcement authority
the Agency assumes upon determining
that a State/Tribal permit program is
inadequate, EPA retains enforcement
authority under RCRA Section 7003 to
address situations that may pose an
imminent and substantial endangerment
to human health or the environment. In
addition, EPA may also exercise
enforcement authority under Section
104(o) of CERCLA in situations where
there is a reasonable basis to believe
there may be a release or threat of
release of a hazardous substance,
pollutant, or contaminant.
Unlike Subtitles C and I of RCRA, the
statute does not provide that State
programs deemed adequate by EPA
operate in lieu of the Federal program.
Absent such a statutory provision, the
Subtitle D Federal revised criteria are
applicable to all Subtitle D regulated
facilities, regardless of whether EPA has
approved the State/Tribal permit
program. Violation of the Subtitle D
Federal revised criteria may subject the
violator to a citizen suit in Federal
court. In the event of a citizen suit
against an owner/operator permitted by
an approved State/Tribe, however, EPA
expects the owner/operator who
complies with the requirements of an
approved State's/Tribe's permit program
will be found by Federal courts to have
complied with the requirements in the
Subtitle D Federal revised criteria. EPA
expects this result because EPA will
have reviewed and explicitly approved
the State's/Tribe's design of
performance standard approach as
ensuring compliance with the Subtitle D
Federal revised criteria.
This citizen suit authority under
RCRA is an important addition to State/
Tribal and Federal enforcement which
EPA believes will help ensure
compliance with Subtitle D Federal
revised criteria. For example, the citizen
suit authority provides an incentive for
owners and operators to comply with
the Subtitle D Federal revised criteria.
In addition, citizens may bring action
against a State (to the extent permitted
by the eleventh amendment to the
Constitution) for failure to develop and
implement an adequate permit program
as required by RCRA Section
4005(c)(l)(B). (Such suits would not be
appropriate against Indian Tribes, who
are not specifically required to comply
with RCRA Section 4005.)
III. Section-by-Section Analysis of 40
CFR Part 239
The following sections of this
preamble include discussions of the
major issues and present the rationale
for the specific regulations being
proposed today. The preamble is
organized in a section-by-section
sequence for ease of reference.
A. Purpose and Scope (SubpartA,
§§239.1 and 239.2)
Sections 239.1 and 239.2 outline the
purpose and scope of today's proposal
and provide definitions of key terms
used in the requirements. Today's
proposal specifies1 the requirements that
State/Tribal permit programs must meet
to be determined adequate to ensure
that Subtitle D facilities regulated under
RCRA section 4010(c) comply with the
Subtitle D Federal revised criteria. The
proposed rule also sets forth the
procedures EPA will follow in
determining the adequacy of State/
Tribal permit programs. Nothing in
today's proposal precludes States/Tribes
from requiring more stringent levels of
protection than those required by the
Subtitle D Federal revised criteria. The
definitions proposed in § 239.2 are
consistent with definitions in other
RCRA regulations where appropriate.
For this Part, the Agency defines
"permit" to include other systems of
prior approval and conditions (e.g.,
licenses). The Agency is proposing this
definition to be.consistent with RCRA
§4005(c) which requires States to
"adopt and implement a permit program
or other system of prior approval and
conditions" and to accommodate'
existing State/Tribal programs that
function as "permit" programs but are
not so designated.
B. Components of a Permit Program
Application (SubpartB, §§239.3-239.5)
1. State/Tribal Permit Program
Application (§ 239.3)
Section 239.3 of today's proposed rule
identifies the components that the State/
Tribe must include in its program
application to obtain an adequacy
determination under this Part. Under
the proposed rule, a State/Tribe must
submit an application containing the
following: (1) A transmittal letter
requesting permit program approval, (2)
a description of the State/Tribal permit
program, (3) a written legal certification
demonstrating that the State/Tribal
authorities cited in the permit program
application are fully enacted and
effective, (4) copies of all applicable
State/Tribal laws, regulations and
guidance that the State/Tribe will use to
ensure that Subtitle D regulated
facilities comply with the Subtitle D
Federal revised criteria, and (5) copies
of any Tribal-State agreements if a Tribe
and State have negotiated agreements
for the implementation of the Subtitle D
permit program on Indian lands. Copies
of all applicable State/Tribal laws,
regulations, and guidance or other
policy documents submitted with the
State's/Tribe's application will be used
by EPA to evaluate the adequacy of a
State/Tribal program's scope and
technical requirements.
A transmittal letter signed by the
State/Tribal Director must accompany
the official State/Tribal application. If
more than one State/Tribal agency has
implementation responsibilities, the
transmittal letter must designate a lead
agency and be jointly signed by all
State/Tribal agencies with
implementation responsibilities or by
the State Governor/Tribal authority
exercising powers substantially similar
to those of a State Governor. This letter
is the State's/Tribe's formal request for
determination of adequacy. The
designation of a lead agency will
provide EPA with a single point of
contact in the State/Tribe and will
facilitate communication between EPA
and the State/Tribe. Under today's
proposal, EPA only will approve
adequate programs with jurisdiction
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throughout a State/Tribe. Independent
sub-State or sub-Tribal agencies that do
not have jurisdiction throughout the
State/Tribe are not eligible for adequacy
determinations but can have
implementation roles as outlined in the
next section.
2. Narrative Description of a State/Tribal
Program (§ 239.4)
Under proposed § 239.4, any State/
Tribe that seeks approval for its Subtitle
D permit program must submit a
narrative description of the State/Tribal
permit program as part of its
application. The narrative description
provides an overview of the State/Tribal
permit program and demonstrates how
the program meets the statutory
requirement to ensure that owners/
operators comply with the Subtitle D
Federal revised criteria under RCRA
section 4010(c). The narrative must
demonstrate that the State/Tribal
program ensures the protection of
human health and the environment
through the implementation of permit
standards that ensure compliance with
the Subtitle D Federal revised criteria.
The narrative description is the
component of the application wherein
the State/Tribe describes how its permit
program satisfies the requirements of
Subpart C of today's proposed rule. The
specific elements of the program
narrative which must be included in a
State's/Tribe's application and are being
proposed today are listed in § 239.4 and
are described briefly below. The
narrative must include a discussion of
the jurisdiction and responsibilities of
all State/Tribal and local agencies
implementing the permit program. The
narrative also must provide a
description of State/Tribal procedures
for permitting, compliance monitoring,
and enforcement as specified in §§ 239.6
through 239.9 of today's proposal and
any applicable State-Tribal agreements.
Many State, Tribal, and local agencies
have begun to address the Subtitle D
Federal revised criteria, and the Agency
does not wish to disrupt these on-going
efforts. The nature of the problem and
the work involved in implementing the
regulatory program dictate that the
actual day-to-day work take place at the
State, Tribal, arid local levels. Therefore,
• today's proposal does not require
implementation only by State/Tribal
agencies with State/Tribal-wide
jurisdiction and authorities. Rather, EPA
is allowing sub-State/Tribal agencies an
implementation role where lead State/
Tribal agencies demonstrate in the
application for permit program approval
that the local agencies will ensure
compliance and will operate under
State/Tribal-wide authorities. The
Agency encourages States/Tribes to
work closely with local implementing
agencies and provide oversight so that
problems, such as local conflicts of
interest, are prevented.
The program narrative also must
provide a discussion of how the State's/
Tribe's permit program will provide for
the permitting of new and existing
Subtitle D regulated facilities to ensure
compliance with the Subtitle D Federal
revised criteria. Under today's proposal,
new Subtitle D regulated facilities must
have permits prior to construction and
operation. States/Tribes may meet this
requirement with a multi-stage
permitting process (e.g., issuing a permit
to construct and a separate permit to
operate) if all requirements relevant to
each stage are incorporated into the
permit for that stage and if new Subtitle
D regulated facilities have permits
incorporating all the requirements of the
Subtitle D Federal revised criteria before
operating. If a State/Tribe uses a multi-
stage permitting process it must ensure
that the public participation elements of
today's proposal in § 239.6(a) and
§ 239.6(b) are met during each stage.
Strategies for ensuring that existing
Subtitle D regulated facilities are
permitted to ensure compliance are
likely to vary depending on the
composition of the regulated
community in a State/Tribe and on
whether the State/Tribe has a pre-
existing permit program. Among the
strategies a State/Tribe may wish to
consider are: (1) Putting existing
facilities on a schedule to receive a
permit where no permits have yet been
issued; (2) scheduling review of existing
permits; (3) scheduling closure of
existing facilities that are unlikely to
come into compliance with new
requirements; or (4) a combination of
these approaches. Regardless of which
strategy is selected, eventually all
facilities in approved States/Tribes must
receive permits that ensure compliance
with the Subtitle D Federal revised
criteria or they must close.
The total number of regulated
facilities within the State/Tribal
jurisdiction must be indicated in the
narrative. EPA believes that information
pertaining to the number of facilities
within the State/Tribal jurisdiction will
be useful in assessing whether the
State's/Tribe's available resources are
adequate to ensure compliance. As
explained below, however, resource
information is not likely to be a central
factor in the determination of State/
Tribal permit program adequacy.
Finally, the program narrative must
address the staff resources that the
State/Tribe has available to carry out its
program. The Agency has not proposed
specific resource and staffing
requirements for approved programs
due to the site-specific nature of
ensuring compliance with the Subtitle D
Federal revised criteria. Each State/
Tribe will have different resource
requirements and strategies for ensuring
compliance. The Agency intends to
allow States/Tribes flexibility in
determining the best use of their
resources. Such information is not likely
to be a central factor in the
determination of State/Tribal permit
program adequacy. However, EPA
intends that, in certain cases (e.g., where
EPA determines that State/Tribal
resources clearly are insufficient), this
information may be used to make a
determination of inadequacy. The
resource estimates will not be judged
with any upper or lower bounds for
approval or disapproval, yet EPA wants
to ensure that funding and staffing exist.
2.a. MSWLF Permit Program Approval
The total number of MSWLFs within
the State/Tribal jurisdiction that
received municipal solid waste on or
after October 9,1991, must be indicated
in the narrative. The October 9,1991,
date was chosen, because MSWLFs
receiving waste after this date must, at
a minimum, comply with the final cover
requirements in 40 CFR Part
258.60(a)(2). The MSWLFs included in
this number are those units which may
receive hazardous household waste or '
conditionally exempt small quantity
generator hazardous waste. Land
application units, surface
impoundments, injection wells, or
waste piles, as those terms are defined
under Part 257.2, do not have to be
addressed in the narrative for approval
of MSWLF permit programs.
3. State/Tribal Legal Certification
(§239.5)
Section 239.5 of the proposed rule
would require any State/Tribe that seeks
a determination of adequacy to submit
a written statement from the State/
Tribal Attorney General certifying that
the laws, regulations, and guidance
cited in the State's/Tribe's permit
program application are fully enacted
and fully effective when the State/Tribal
permit program is approved. The State/
Tribal legal certification serves as the
foundation for ensuring that the State/
Tribal permit program has adequate
authority to ensure compliance with the
Subtitle D Federal revised criteria and to
meet the requirements of this rule.
If guidance is to be used to
supplement statutes and regulations, the
State/Tribal legal certification must state
that the State/Tribe has the authority to
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2595
uso guidance to develop enforceable
permits which will ensure compliance
wllli tho Subtitle D Federal revised
criteria and that the guidance was duly
issued in accordance with State/Tribal
law. Guidance only may be used to
supplement State/Tribal laws and
regulations; it cannot correct laws and
regulations that are inconsistent with
tho Subtitle D Federal revised criteria.
Tho narrative description of the State/
Tribal program must explain how the
Stale/Tribe will use guidance to develop
onforcoable permits. The Agency
emphasizes that guidance is not a
substitute Tor regulations and statutes
and that the applicant must have the
necessary authorities to ensure
compliance with the Subtitle D Federal
revised criteria.
This certification may be signed by
tho independent legal counsel for the
State/Tribe, rather than the Attorney
General or equivalent Tribal official,
provided that such counsel has full
authority to represent independently the
lend State/Tribal Agency in court on all
matters pertaining to the State/Tribal
program.
Applicants seeking approval of permit
programs on Indian lands also must
include in the legal certification an
analysis of the applicant's authority to
regulate all facilities covered by the
relevant Subtitle D Federal revised
criteria on Indian lands. The applicant
shall include: a map or legal description
of tho Indian lands over which the
applicant asserts jurisdiction and a copy
of all documents such as constitutions,
by-laws, charters, executive orders,
codes, ordinances, and/or resolutions
which support the applicant's assertions
of authority. States asserting jurisdiction
over Indian lands also must submit the
same information, as well as copies of
applicable State-Tribal agreements.
To facilitate greater flexibility in the
approval process, the Agency intends to
allow legal certifications that cite
statutes, rules, or guidance that are still
in tho legislative or rulemaking process
and are not yet fully enacted or fully
effective. The Agency will make
tentative determinations of adequacy
based on these types of legal
certifications but will request copies of
tho revised laws and regulations and a
revised legal certification stating all
laws and regulations are fully enacted
and fully effective prior to any final
adequacy determination by EPA. It may
occur that the statutes, regulations, or
guidance originally submitted with the
application are modified so that they no
longer ensure compliance with the
Subtitle D Federal revised criteria.
Should this happen, the Regional
Administrator will publish a new
tentative adequacy determination in the
Federal Register to provide for adequate
public participation, including an
opportunity for the public to provide
comments.
C. Requirements for Adequate Permit
Programs (Subpart C, § 239.6-239.9)
Under § 239.6-239.9 the Agency is
proposing requirements for State/Tribal
permit programs to ensure that all new
and existing Subtitle D facilities which
are subject to regulation under RCRA
section 4010(c) have a permit and
comply with the Subtitle D Federal
revised criteria. Strategies for permitting
existing facilities are discussed in
section B.2 above. Section 239.6 of the
proposed rule requires States/Tribes to
have legal authority to require permits
ensuring compliance with the Subtitle D
Federal revised criteria. A State/Tribe
must have adequate authority to collect
all information it needs to issue permits
that implement the technical
requirements.
Sections 239.7 through 239.9 of the
proposed rule outline the minimum
components of an adequate compliance
monitoring and enforcement program to
ensure compliance with the Subtitle D
Federal revised criteria. In general, the
proposed rule requires that States/
Tribes have the authority to effectively
ensure and enforce ongoing compliance
with their approved State/Tribal permit
requirements. These sections describe
the general legal and procedural
program elements that are necessary:
compliance monitoring authorities,
enforcement authorities, and provisions
for public intervention in civil
enforcement proceedings.
The rule does not prescribe specific
permitting procedures or enforcement
and compliance monitoring activity
levels or tasks. In proposing these
requirements, EPA is emphasizing
elements of basic authority, rather than
detailed programmatic elements. This
emphasis allows sufficient State/Tribal
flexibility while requiring that the
approved State/Tribal programs have
adequate authorities and procedures
that will allow them to take action as
needed to ensure compliance with the
technical requirements. A detailed
discussion of the permitting,
compliance, and enforcement
provisions of today's proposal follows.
1. Permitting Requirements (§ 239.6)
The Agency recognizes public
involvement in permit decisions as an
essential component of an effective
permit program. In light of the
recognized importance of public
participation, EPA is requiring that the
permit application process must provide
for public review of and input to permit
documents containing the applicable
site-specific design and operating <
conditions and must provide for
consideration of comments received and
notification to the public of the final
permit decision.
The Agency believes that it is
essential for an effective permit program
to provide opportunities for public
involvement in permit decisions made
after the initial permit issuance (e.g.,
permit modifications). States/Tribes
must provide a full description of their
public participation procedures,
including procedures for permit actions
after initial permit issuance, in the
narrative and include a copy of the
procedures in the permit program
application.
The public participation requirements
are intended to ensure that approved
permit programs avail th'e public of
needed information and the opportunity
to provide input on decisions affecting
the management of regulated Subtitle D
facilities located in their community.
Although EPA is not proposing
prescriptive public participation
requirements, EPA expects the States/
Tribes to have comprehensive and
effective procedures for public
involvement in key permitting
decisions, in accordance with RCRA
Section 7004(b)(l).
The Agency believes that it is
particularly important to provide for
review and comment (including the
opportunity for public hearings or
meetings) on permits. It also is
important to provide public notice and
sufficient time for the public to review
technical, often complex, permit
documents. In addition, EPA has found
that notice of opportunities for public
review of and input to key post-permit
decisions (e.g., significant permit
modifications) is essential to an
effective public participation program.
While some States/Tribes may
distinguish between minor permit
actions (e.g., increasing the gas
monitoring frequency) and major permit
actions (e.g., selecting a corrective
action remedy), the public should be
involved in key decisions which affect
their health and their community. For
example, public notice of remedial
actions and opportunity to comment on
the selection of remedies is
recommended.
EPA believes the ultimate success of
a permit program depends in large part
on the effectiveness of a State's/Tribe's
public participation program. The
additional up-front time a State/Tribe
takes involving the public in key permit
decisions will result in long-term
improvements to the permit program.
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While post-permit issuance public
participation procedures will not be a
determining factor in an adequacy
determination, EPA is concerned with
ensuring effective public participation.
To that end, if, after reviewing the
State's/Tribe's public participation
narrative and procedures, the Regional
Administrator determines that the
State's/Tribe's procedures could be
improved, he/she will direct Regional
staff to work with the State/Tribe to
improve the effectiveness of its public
participation procedures.
States/Tribes also must demonstrate
that they have the authority to require
permit conditions that ensure
compliance with the Subtitle D Federal
revised criteria. Section 239.6 outlines
the authorities States/Tribes must have
for their permit programs to be deemed
adequate.
In order to demonstrate that they will
ensure compliance with the Subtitle D
Federal revised criteria, States/Tribes
must describe and explain substantive
differences between the State/Tribal
requirements and the Subtitle D Federal
revised criteria. States/Tribes may, in
any case, impose requirements which
are more stringent than the Federal
requirements.
l.a. Permitting Requirements for
MSWLFs
As discussed earlier in the Approach
section of today's proposal, States/
Tribes may use any combination of
design and performance standards as
long as the State/Tribal standards
ensure compliance with the Subtitle D
Federal revised criteria for MSWLFs.
Where 40 CFR Part 258 has a
performance standard (e.g., Subpart B
Location Restrictions), the State/Tribe
may use any performance standard that
is at least as stringent as the Federal
performance standard. The State/Tribe
also may use its own design standard or
a combination of a performance
standard and a design standard which
achieves the Federal performance
standard.
Where Part 258 has both a
performance standard and design
standard (e.g., section 258.21—cover
material requirements), the State/Tribe
need only demonstrate technical
comparability with one of the standards.
For example, if the State/Tribe requires
MSWLF owners and operators to use a
specific daily cover material that the
State/Tribe demonstrates to the
satisfaction of the Regional
Administrator meets the Federal
performance standard of Part 258.21
(i.e., controlling disease vectors, fires,
odors, blowing litter, and scavenging
without presenting a threat to human
health and the environment), the
Regional Administrator may accept that
design as adequate. States/Tribes also
may use design or performance
standards that the Regional
Administrator deems to be clearly more
stringent than those found in Part 258.
EPA has received a number of
questions concerning the Agency's
standard for determining the adequacy
of the design portion of a state's permit
program. In Subpart D of 40 CFR Part
258, the Agency promulgated both a
performance standard (section
258.40(a)(l)) and a uniform composite
liner requirement (sections 258.40(a)(2)
and 258.40(b)). Under the performance
standard provision, a new MSWLF unit
or a lateral expansion of an existing unit
must be constructed using a design
approved by the Director of an approved
state, and this design must ensure that
concentration values listed in Table 1 of
section 258.40 (Maximum Contaminant
Levels ("MCLs")) will not be exceeded
at the relevant point of compliance, as
specified by the approved State Director
under section 258.40(d).
Section 258.40(c) sets forth criteria for
the Director of an approved state to
utilize in evaluating designs. Section
258.40(d) provides that the relevant
point of compliance shall be no more
than 150 meters from the waste
management unit boundary and shall be
located on land owned by the owner of
the MSWLF unit. This section also
establishes the factors which the
Director of an approved state must
consider in determining what the
relevant point of compliance should be.
As the Agency stated when the
MSWLF final rule was promulgated,
EPA's approach to state program
approval recognizes the traditional lead
role that states take in implementing
landfill standards and protecting ground
water. 56 FR 50994 (Oct. 9, 1991). More
specifically, EPA stated that, "[i]n
selecting a design to meet this
performance standard, an approved
State may adopt its own performance
standard, it may use the rule's specific
liner design, or it may use any design it
determines would be capable of
preventing contamination of ground
water beyond the drinking water
standards [the MCLs]." Id.
In evaluating the design requirements
for new units and lateral expansions in
State permit programs, EPA has
provided states with various approaches
for developing adequate programs. For
example, States can develop design
requirements that only include a
performance standard that is at least as
stringent as the performance standard in
40 CFR section 258.40(a)(l), i.e., not
exceeding the MCLs at the relevant
point of compliance. In such States, the
Director could approve alternative
designs on a site-specific basis as long
as the alternative design satisfied the
performance standard. The vast majority
of the 44 State/Tribal permit programs
which EPA has approved as adequate
have included a performance standard
that is at least as stringent (in certain
cases more stringent, e.g., by specifying
a relevant point of compliance closer
than 150 meters from the unit boundary)
than the performance standard in
section 258.40(a)(l). EPA believes that
state adoption of a design performance
standard that is at least as stringent as
the one adopted in the MSWLF rule will
ensure that owners and operators of new
MSWLF units and lateral expansions
will comply with the design
requirements of the revised criteria.
Except as specified in 40 CFR section
258.40(e), i.e., in situations where an
unapproved state determines that an
alternative liner meets the performance
standard and submits a petition to EPA,
the Agency never intended to review
and/or approve alternative liner designs
on a site-specific basis.
EPA has also approved State programs
as being adequate under RCRA section
4005(c)(l)(C) if the State has adopted
one alternative design or various liner
designs which have been shown to
satisfy the performance standard in 40
CFR section 258.40.(a)(l) in all locations
in the State. In these situations, states
may perform modeling and associated
analysis to show that the alternative
design(s) satisfy the performance
standard contained in 40 CFR section
258.40(a)(l). The Agency has issued
technical guidance which provides
states and the public information as to
how such modeling and analysis can be
done. In approving such state
alternative designs, EPA has ensured
that the modeling done by the state and
any done by the Agency was contained
in the public record for review and
comment. If the modeling and analysis
show that the performance standard in
40 CFR section 258.40(a)(l) will be met
in the various locations throughout the
state, then the Agency believes the
State's alternative design(s) will ensure
compliance with the revised criteria,
and, thus, is adequate under RCRA
section 4005(c)(l)(C). EPA has approved
at least six state permit programs which
incorporate these alternative design(s)
on a state-wide basis.
States are not required to utilize one
particular model to show that an
alternative liner design will satisfy the
performance standard on a state-wide
basis. In fact, EPA's technical guidance
document identifies a number of models
that States may use to assess alternative
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2597
designs. In certain situations, however,
e.g., whore a state adopts a state-wide
doublo composite liner design which is
clearly more stringent than the MSWLF
single composite design set forth in 40
CFR 258.4Q(b). EPA believes that
modoling and associated analysis may
not bo necessary.
States may also adopt a combination
of a performance standard that is at least
as stringent as the performance standard
in section 258.40(a)(l) and either the
composite liner design contained in
sections 258.40(a)(2) and 258.40(b) or
alternative designs (discussed above)
that meet the performance standard of
ensuring that the MCLs will not be
exceeded at the relevant point of
compliance. In such states, owners and
operators of facilities have maximum
flexibility in constructing new units and
lateral expansions of existing units,
while still ensuring that the design
standards in Part 258 are satisfied.
2. Requirements for Compliance
Monitoring (§239.7)
Section 239.7 requires States/Tribes to
demonstrate the authority to require
compliance monitoring and testing.
Paragraph (a) requires that the State/
Tribe have the authority to obtain all
relevant compliance information. More
specifically, the proposed rule requires
that the State/Tribe have the authority
to: obtain any and all information from
an owner or operator necessary to
determine whether the owner/operator
is in compliance with the State/Tribal
program requirements; conduct
monitoring or testing to ensure that
owners/operators are in compliance
with the State/Tribal program
requirements; and enter any site or
promises subject to the permit program
or in which records relevant to the
operation of the regulated facilities or
activities are kept. A State/Tribe also
must demonstrate that its compliance
monitoring program provides for
inspections adequate to determine
compliance with State/Tribal program
requirements.
Finally, a State/Tribe must
demonstrate that its compliance
monitoring program provides
mechanisms and processes to: verify the
accuracy of information submitted by
owners or operators; ensure proper
consideration of information submitted
by the public; verify adequacy of
methods (including sampling) used by
owners or operators in developing that
information; and produce evidence
admissible in an enforcement
proceeding.
EPA behoves that these compliance
monitoring authorities and procedures
are central to a State's/Tribe's ability to
ensure compliance with the Subtitle D
Federal revised criteria. Monitoring and
testing programs help ensure that
States/Tribes are able to detect permit
violations and collect the necessary
evidence to support case development
and enforcement actions. These
authorities play an integral role in the
overall determination of adequate
permit programs.
The compliance, monitoring
requirements proposed today are
designed to ensure that approved State/
Tribal representatives have the
authorities and procedures to conduct
facility inspections and obtain
information necessary to determine
owner/operator compliance with
approved State/Tribal permit programs.
These authorities and procedures
provide a basis for State/Tribal agencies
to effectively take enforcement actions
and help ensure that the regulated
community complies with applicable
requirements.
3. Requirements for Enforcement
Authority (§ 239.8)
Section 239.8 outlines enforcement
authority requirements that are
necessary for adequate State/Tribal
permit programs. A strong State/Tribal
enforcement presence is critical to
ensuring compliance. The State/Tribe
must have the legal authority to take
specific actions against any owner/
operator that fails to comply with the
approved State's/Tribe's requirements.
Each of these actions is discussed in
detail below.
Paragraph 239.8(a) requires that
States/Tribes have the ability to use an
administrative or court order to restrain
any person from conducting an activity
that threatens human health or the
environment. Under proposed
paragraph 239.8(b), States/Tribes must
have the authority to sue in court to
enjoin any party from violating State/
Tribal program statutes, regulations,
orders, or permits, Paragraph 239.8(c)
requires that States/Tribes demonstrate
the authority to sue in a court of
competent jurisdiction to recover civil
penalties for violations of permit or
order conditions as well as for failure to
comply with laws and regulations.
Although the rule being proposed
today does not require that States/Tribes
have authority to assess criminal
penalties, other State/Tribal-delegated
programs, such as programs under the
Clean Water Act, do require this
authority. In fact, there are at least 30
States which already have criminal
authority for enforcement of municipal
solid waste requirements.6
The Agency solicits comment on
whether the rule should require that
States/Tribes have criminal penalty
authority for their permit programs. The
Agency realizes that such a criminal
requirement could raise impediments to
Tribal permit program approval. Federal
law bars Indian Tribes from criminally
trying or punishing non-Indians in the
absence of a treaty or other agreement to
the contrary. Oliphant v. Suquamish
Indian Tribe 435 U.S. 191 (1978). In
addition, the Federal Indian Civil Rights
Act prohibits any Indian court or
tribunal from imposing any criminal
fine greater than $5,000 (25 U.S.C.
1302(7)). To address this problem, EPA
has traditionally asserted that it would
exercise criminal enforcement authority
where the Tribe is incapable of doing so
pursuant to a Memorandum of
Agreement (MOA) between EPA and the
Tribe specifying procedures for referral
of cases. See, e.g., 40 CFR 123.34. The
Agency is interested in receiving
comments on employing the "MOA
referral" approach for Tribal MSWLF
permit programs and any other
suggestions as to how Tribes could meet
a criminal penalty authority
requirement in light of the limitations
on their authority to assert criminal
jurisdiction over non-Indians on Tribal
lands.
4. Intervention in Civil Enforcement
Proceedings (§ 239.9)
Today's proposal provides that State/
Tribal civil enforcement proceedings
must ensure adequate opportunity for
public participation through either of
two options: (1) authority to allow
intervention as a right; or, (2) assurances
that the State/Tribal authority will
provide notice and opportunity for
public comment in all proposed
settlements of civil enforcement actions,
investigate and provide responses to
citizen complaints about violations, and
not oppose citizen intervention when
permissive intervention is allowed by
statute, rule, or regulation.
Each of these options separately
provides an adequate opportunity for
public participation. Thus, States/Tribes
need only provide one of the options.
The options ensure that the opportunity
for public participation in civil
enforcement proceedings is provided
with minimal intrusion into the States'/
Tribes' judicial systems. The purpose
for the intervention requirement is
• 6 Review of State Enforcement Powers and
Authorities Under RCRA Subtitle D: Final Report.
U.S. Environmental Protection Agency, March 31,
1987.
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2598 Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Proposed Rules
outlined below followed by a detailed
discussion of the two options.
The purpose of providing public
participation in the decision making
process is to promote public
involvement in the enforcement of
Subtitle D Federal revised criteria.
Without intervention requirements,
citizens may be precluded from
participating in civil enforcement
proceedings even if they have pertinent
information that would support State/
Tribal enforcement cases. Also, citizens
that have an interest in or that may be
affected by the outcome of the
enforcement action may not be able to
intervene in enforcement proceedings.
Citizen intervention provisions are
mandatory for other EPA programs,
such as the Underground Storage Tank,
Hazardous Waste, Underground
Injection Control, and National
Pollutant Discharge Elimination System
programs. EPA first required citizen
intervention as a result of the decision
in Citizens for a Better Environment v.
Environmental Protection Agency, 596
F.2d 720 (7th Cir. 1979). That decision
interpreted section 101(e) of the Federal
Water Pollution Control Act
Amendments (FWPCA) of 1972 to
require EPA to establish State program
guidelines and evaluate State programs
to ensure that there is public
participation in the enforcement of the
Clean Water Act. This principle has
been extended to RCRA, because the
language of FWPCA section 101(e) is
quite similar to RCRA section
7004(b)(l). Section 7004 of RCRA
requires EPA and the States to provide
for, encourage, and assist with public
participation in the development,
revision, implementation, and
enforcement of any regulation,
guideline, information, or program
under RCRA.
Under today's proposal, the State/
Tribe would be required to provide for
intervention using either of two options.
The first option, paragraph 239.9(a),
requires that the State/Tribe allow
intervention by any citizen having an
interest that is or may be adversely
affected. Under this option, the State/
Tribe allows intervention as a right in
any civil action to enforce this Part. The
second option requires the State/Tribe
to assure that it would: provide
opportunity for public involvement or
comment on all proposed civil
settlements; respond to citizen
complaints about violations; and not
oppose citizen action when intervention
is legally allowed. The public
involvement or comment requirement of
this last option may be satisfied by a
variety of means: from a formal notice
and hearing to less formal public
review.
D. Adequacy Determination Procedures
(Subpart D, §§ 239.10-239.12)
1. Adequacy Determination Procedures
(§239.10)
To encourage early and close working
relationships between the States/Tribes
and the EPA Regions, approval
authority has been delegated to EPA's
Regional Administrators. EPA Regional
Offices will review State/Tribal
applications to determine if a State's/
Tribe's application is complete and
whether the State/Tribal permit program
meets the requirements of this Part.
For those States/Tribes that have
submitted a permit program application,
.the Regional Administrator will have 30
days to make an administrative review
of each application and request
additional information from the State/
Tribe or notify the State/Tribe that the
application is administratively
complete.
Upon review of a complete
application, EPA will make a tentative
determination of the adequacy of the
permit program. After publication of the
Federal Register notice of this tentative
determination, a public comment
period, and review and consideration of
comments received, the Regional
Administrator will make a final
adequacy determination and publish it
in the Federal Register. At the
discretion of the Regional
Administrator, a public hearing may be
held if sufficient public interest exists or
if such a hearing might clarify
substantive issues. A final
determination of adequacy will be made
within 180 days of EPA's determination
that the application is complete unless
a delay is agreed to by the Regional
Administrator after consultation with
the State/Tribal Director.
The Agency designed this process to
ensure that permit program adequacy is
determined in a timely manner, while
simultaneously affording the public and
EPA sufficient opportunity for review
and comment.
2. Partial Approval Procedures for State/
Tribal Permit Programs (§ 239.11)
Section 239.11 proposes procedures
for partial approval of State/Tribal
permit programs. A State/Tribal permit
program is eligible for partial approval
if it meets all of the procedural and legal
Part 239 requirements (i.e., but not
limited to, enforcement, public
participation, compliance monitoring)
and meets essentially all of the technical
Part 239 requirements (e.g., 40 CFRPart
258 requirements). States/Tribes
applying for partial approval also must
include a schedule, agreed to by the
State/Tribe and the appropriate
Regional Administrator, for completing
the necessary changes to the laws,
regulations, and/or guidance to comply
with the remaining technical
requirements. For an additional
explanation of the partial approval
process refer to section II.E.2 in the
background portion of this preamble.
3. Procedures for Review of Modified
State/Tribal Programs (§ 239.12)
Section 239.12 proposes procedures
for submittal and review of revised
applications for State/Tribal program
adequacy determinations, should a
State/Tribe revise its permit program
once deemed adequate. Program
revision may result from changes in the
pertinent Federal statutory or regulatory
authority, changes in State/Tribal
statutory or regulatory authority or
relevant guidance, or when
responsibility for the State/Tribal
program is shifted within the lead
agency or to a new or different State/
Tribal agency or agencies.
States/Tribes may be required to
revise their permit program if the
Federal statutory or regulatory
authorities which have significant
implications for State/Tribal permit
programs change. These changes also
may require revision to a State's/Tribe's
permit program application. Such a
change at the Federal level, and
resultant requirements for States/Tribes,
would be made known to the States/
Tribes either in the Federal Register
containing the change or through the
appropriate EPA Regional Office.
Changes to parts of the State/Tribal
permit program, as described in its
application, which may result in the
permit program becoming inadequate
must be reported to the appropriate
Regional Administrator. In cases where
the State/Tribal statutory or regulatory
authority or relevant guidance changes,
or when responsibility for the State/
Tribal program is shifted within the lead
agency or to a new or different State/
Tribal agency or agencies, the State/
Tribal Director must inform the
Regional Administrator of these
modifications. In addition, changes to a
State's/Tribe's statutes, regulations, or
guidance which were not part of the
State's/Tribe's initial application, but
which may have a significant impact on
the adequacy of the State's/Tribe's
permit program, also shall be reported
to the EPA. An example of a change in
State/Tribal statutes or regulations
which may have a significant effect on
the adequacy of a State's/Tribe's permit
program is the passage of a new law
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Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Proposed Rules
2599
which disallows the use of guidance in
environmental regulatory programs,
whoro a Stole/Tribe has submitted
guidance as part of its application.
The Regional Administrator will
determine, on a case-by-case basis,
whether changes at the State/Tribal
level warrant re-examination of the
Slate/Tribal program adequacy
determination, including submission of
a revised application. In re-examining
the adequacy determination, the
Regional Administrator will follow the
adequacy delerminaticn procedures
outlined in today's rule under § 239.12.
This process is necessary to ensure
that State/Tribal permit programs
remain current with Federal
requirements and continue to be
adequate to ensure compliance with the
Subtitle D Federal revised criteria.
There are no mandatory time-frames for
submitting modifications or re-
examining adequacy determinations.
Rather, schedules for approved States/
Tribes to submit modifications to the
Regional Administrator and for State/
Tribal submission of a revised
application are to be negotiated by the
State/Tribal Director and the Regional
Administrator. This arrangement should
minimize potential disruption to
ongoing program activities.
Section 239.12(g) and 239.12(h) of
today's proposal refer to "additional
classifications of Subtitle O regulated
facilities" and specify that streamlined
approval procedures will not be
followed in this case. This language has
been included in anticipation of future
EPA regulation of other types of
facilities under Subtitle D. An example
of a potential additional class of Subtitle
D facilities is industrial landfills that
accept conditionally exempt small
quantity generator waste.
EPA anticipates maintaining a
continued informal dialogue with
approved States/Tribes as States/Tribes
make changes to their permit programs
or as Federal statutes or regulations
change. Slate/Tribal permitting is a
dynamic process and EPA anticipates
Stale/Tribal Directors and the respective
EPA Regional Administrators will
continue to communicate on a variety of
solid waste issues. These types of
routine communications between the
Slates/Tribes and the EPA Regions are
important in maintaining good
information exchange and should be
encouraged. EPA notes that the majority
of communications between States/
Tribes and the Regions are part of
normal operations and should not be
construed as part of the adequacy
withdrawal process or program
modification process. The procedures
For modification of State/Tribal permit
programs and for withdrawal of
determination of adequacy require
formal notifications to the State/Tribe
and any such correspondence shall be
clearly identified to differentiate it from
other correspondence.
4. Withdrawal of Determination of
Adequacy of State/Tribal Permit
Programs (§ 239.13]
Section 239.13 lays out specific
conditions and procedures for the
withdrawal of State/Tribal permit
program determinations of adequacy.
Withdrawal procedures may be initiated
where it appears that the State/Tribal
permit program may no longer be
adequate to ensure compliance with the
Subtitle D Federal;revised criteria. The
withdrawal of the Agency's adequacy
determination will require completion
of several steps including: (1) receipt of
substantive information sufficient to
indicate that the Sjtate's/Tribe's permit
program may no longer be adequate; (2)
a 45-day period allowing the State/Tribe
to demonstrate its permit program
adequacy; (3) a determination of any
measures needed to correct program
deficiencies and an opportunity for the
State/Tribe to address these program
deficiencies; (4) initiation of
proceedings for withdrawal of adequacy
determination (i.e., notice of tentative
determination of inadequacy), if the
State/Tribe fails to appropriately resolve
the deficiency; (5) public involvement;
and, (6) a final determination.
The first step is EPA receipt of
substantive information sufficient to
indicate program inadequacy, after
which the Regional Administrator will
inform the State/Tribe of the
information. It is EPA's intent that a
program withdrawal would not be
triggered by minor complaints. Today's
proposed rule will allow a State/Tribe
45 days to demonstrate that its permit
program remains adequate.
If, after reviewing the State's/Tribe's
response, the Regional Administrator
believes there is reason to revise the
permit program, the State/Tribe and
Region will negotiate a schedule for the
resolution of the deficiency(ies). If the
State/Tribal Director and Regional
Administrator fail f.o agree to a time
period for resolving the deficiency(ies),
the Regional Administrator will set a
time period and inform the State/Tribal
Director of the time period.
If, within the established time frame,
the State/Tribe has not adequately
addressed the identified program
deficiencies, the Regional Administrator
may initiate adequacy determination
withdrawal by publishing a notice of
tentative adequacy withdrawal in the
Federal Register. This notice will
outline the deficiency and will allow for
a period of public comment and
opportunity for a public hearing. At the
conclusion of the public comment
period and after the public hearing (if
any), the Regional Administrator will
consider all comments received,
.reevaluate the State/Tribal permit
program, and determine whether the
State/Tribal permit program can ensure
compliance with the Subtitle D Federal
revised criteria.
If the Regional Administrator finds
that the State/Tribal program remains
adequate, he/she will publish a notice
in the Federal Register which explains
the reasons for the decision and
terminate the withdrawal process.
However, if the Regional Administrator
finds that the permit program is no
longer adequate to ensure compliance
with the Subtitle D Federal revised
criteria, he/she will publish a notice in
the Federal Register withdrawing the
Agency's determination of State/Tribal
permit program adequacy and declaring
the State/Tribal permit program
inadequate to ensure compliance with
the Subtitle D Federal revised criteria.
The Agency proposes these specific
withdrawal procedures to ensure that
citizens have the opportunity to bring
alleged State/Tribal deficiencies to the
attention of the Regional Administrators
and that States/Tribes have the
opportunity to refute or correct alleged
problems as they arise. Any State/Tribe
whose permit program has been deemed
inadequate to ensure compliance with
the Subtitle D Federal revised criteria
may seek another adequacy
determination at any time.
E. Changes to Part 258
For the sole purpose of applying the
Federal revised criteria to approved
Tribal programs, the rule proposes to
include Indian Tribes in the definition
of "State" and Tribal Director in the
definition of "State Director." The
Agency proposes to do this as a means
of efficiency and not to imply any other
substantive effect on the character,
authority, and/or rights of Tribes.
IV. Economic and Regulatory Impacts
A. Regulatory Impact Analysis
Pursuant to the terms of executive
order 12866, the Office of Management
and Budget (OMB) has notified EPA that
it considers this a "significant
regulatory action." EPA has submitted
this action to OMB for review. Changes
made in response to OMB suggestions or
recommendations will be documented
in the public record.
Requirements for State/Tribal permit
programs as outlined in this proposal
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Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Proposed Rules
will not add substantial costs beyond
those already imposed under the
Subtitle D Federal revised criteria.
Regardless of this regulation, RCRA
section 4005(c)(l)(B) requires all States
to develop and implement permit
programs to ensure compliance with the
Subtitle D Federal revised .criteria.
EPA believes that the proposed STIR
does not impose a major increase in
costs over and above any costs which
RCRA section 4005(c)(l)(B) already
imposes on States/Tribes.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires an agency to
prepare, and make available for public
comment, a regulatory flexibility
analysis that describes the impact of a
proposed or final rule on small entities
• (i.e., small businesses, small
organizations, and small governmental
jurisdictions). No regulatory flexibility
analysis is required if the head of an
agency certifies the rule will not have
significant economic impact on a
substantial number of small entities.
This proposal, in itself, will not have
a significant impact on a substantial
number of small entities, since the
proposal has direct effects only on
State/Tribal Agencies. Therefore, no
regulatory flexibility analysis has been
prepared.
C. Paperwork Reduction Act
The information collection
requirements in today's proposed rule
have been submitted for approval to the
Office of Management and Budget
(OMB) under the Paperwork Reduction
Act of 1980, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR)
document has been prepared by EPA
(ICR No. 1608), and a copy may be
obtained from Sandy Farmer, OPPE
Regulatory Information Division, U.S.
EPA (2136), 401 M Street SW.,
Washington, D.C., 20460 or by calling
(202) 260-2740.
'The need for this collection of
information from the States/Tribes
derives from Section 4005 (c) of RCRA.
This section requires the EPA
Administrator to review State/Tribal
permit programs to determine if they are
adequate to ensure compliance with the
Federal MSWLF criteria. To carry out
this mandate, and thus make a
determination, EPA must collect
information in the form of an
application for MSWLF permit program
approval from States/Tribes. The
universe of respondents involved in this
information collection will be limited to
those States/Tribes seeking approval of
their municipal solid waste permit
programs. The information which
States/Tribes would submit is public
information; therefore, no problems of
confidentiality or sensitive questions
arise.
The projected cost and hour burden
for the submittal of a schedule or an
application by the estimated 41
respondents within a three year time
frame is 9,236 Hours. Given these
parameters, the bottom line cost
estimate is $318,280.00. This cost
estimate reflects total capital costs and
operation and maintenance costs.
Burden means the total time, effort, or
financial resources expended by persons
to generate, maintain, retain, or disclose
or provide information to or for a
Federal agency. This includes the time
needed to review instructions; develop,
acquire, install, and utilize technology
and systems for the purposes of
collecting, validating, and verifying
information, processing and
maintaining information, and disclosing
and providing information; adjust the
existing ways to comply with any
previously applicable instructions and
requirements; train personnel to be able
to respond to a collection of
information; search data sources;
complete and review the collection of
information; and transmit or otherwise
disclose the information.
An Agency may not conduct or
sponsor, and a person is not required to
respond to a collection of information
unless it displays a currently valid OMB
control number. The OMB control
numbers for EPA's regulations are listed
in 40 CFR Part 9 and 48 CFR Chapter
15.
Comments are requested on the
Agency's need for this information, the
accuracy of the provided burden
estimates, and any suggested methods
for minimizing respondent burden,
including through the use of automated
collection techniques. Send comments
on the ICR to the Director, OPPE
Regulatory Information Division; U.S.
Environmental Protection Agency
(2136); 401 M St., S.W.; Washington, DC
20460; and to the Office of Information
and Regulatory Affairs, Office of
Management and Budget, 725 17th St.,
N.W., Washington, DC 20503, marked
"Attention: Desk Officer for EPA."
Include the ICR number in any
correspondence. Since OMB is required
to make a decision concerning the ICR
between 30 and 60 days after January
26, 1996, a comment to OMB is best
assured of having its full effect if OMB
receives it by February 26, 1996. The
final rule will respond to any OMB or
public comments on the information
collection requirements contained in
this proposal.
D. Unfunded Mandates Reform Act
Under section 202 of the Unfunded
Mandates Reform Act of 1995 (the Act),
P.L. 104-4, which was signed into law
on March 22,1995, EPA generally must
prepare a written statement for rules
with federal mandates that may result in
estimated costs to state, local, and tribal
governments in the aggregate, or to the
private sector, of $100 million or more
in any one year. When such a statement
is required for EPA rules, under section
205 of the Act, EPA must identify and
consider alternatives, including the least
costly, most cost-effective or least
burdensome alternative that achieves
the objectives of the rule. EPA must
select that alternative, unless the
Administrator explains in the final rule
why it was not selected or it is
inconsistent with law. Before EPA
establishes regulatory requirements that
may significantly or uniquely affect
small governments, including tribal
governments, it must develop under
section 203 of the Act a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, giving them
meaningful and timely input in the
development of EPA regulatory
proposals with significant federal
intergovernmental mandates, and
informing, educating, and advising them
on compliance with the regulatory
requirements.
EPA has determined that the
proposed STIR does not include a
federal mandate that may result in
estimated costs of $100 million or more
to state, local, or tribal governments in
the aggregate, or to the private sector, in
any one year. Under the authority of
RCRA section 4005(c)(l)(C), EPA has
already approved 42 state MSWLF
permit programs. The Agency also has'
approved one tribal MSWLF program.
EPA does not anticipate that the
approval of MSWLF permit programs
under the proposed STIR for the few
remaining states (or any tribes which
submit their programs voluntarily for
approval) will result in annual costs of
$100 million or more. EPA estimates
that it costs a state approximately
$15,000 to develop and submit to EPA
an application for approval of a state
permit program. The Agency also has
estimated that tribal governments may
spend approximately $8,000 to prepare
and submit a permit program
application.
EPA's approval of state and tribal
programs generally have a deregulatory
effect on the private sector because once
a state or tribal MSWLF permit program
is determined to be "adequate" under
RCRA section 4005(c)(l)(C), owners and
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2601
operators of MSWLFs may take
advantage of the flexibility that an
approved state or Indian tribe may
oxorciso. Such flexibility will reduce,
not increase, compliance costs for the
private sector.
As to section 203 of the Act, EPA has
determined that the proposed STIR will
not significantly or uniquely affect small
governments, including tribal
governments. The Agency recognizes
that small governments may own and/
or operate solid waste disposal facilities,
including MSWLFs, that will become
subject to the requirements of a state
permit program that is approved under
the STIR, once it is promulgated.
However, such small governments
which own and/or operate MSWLFs are
already subject to the requirements in
40 CFR Part 258. Once EPA approves
state permit programs under the STIR,
these same small governments will be
able to own and operate their MSWLFs
with increased levels of flexibility
, provided under the approved state
program.
EPA has, however, worked closely
with states and small governments in
the development of the proposed STIR.'
EPA distributed drafts of the proposed
rule to 14 states for their review and
comments. The Agency also provided
copies of the draft proposed STIR to the
Association of State and Territorial
Solid Waste Management Officials,
which distributed the draft rule to all of
its state and territorial members. In
addition, EPA conducted a pilot
program where the Agency worked with
the states of California, Connecticut,
Virginia, and Wisconsin to develop their
applications for program approval using
the draft STIR as guidance.
EPA also distributed the draft STIR at
tho National Tribal Conference on
Environmental Management and at EPA
Regional-Tribal conferences. Although
tribal governments are not required to
submit applications for program
approval under RCRA section
4005(c)(l)(B), EPA has utilized the draft
proposed STIR as guidance in working
with particular tribal governments
which have chosen to seek EPA's
approval, e.g., the Campo Band tribe in
California and the Cheyenne River
Sioux in South Dakota.
As owners and/or operators of
municipal landfills, small governments
have been more directly impacted by
tho MSWLF rule (40 CFR Part 258) than
they will be by the STIR. Indeed, the
STIR will provide small governments
with additional flexibility, resulting in a
cost reduction, once their state permit
program is approved. The Agency has
worked closely with small governments
in the implementation of the MSWLF
rule and provided ithem with
information concerning the flexibility
which it provides to owners/operators
in approved states. EPA has supported
training workshop^ for small
governments and has prepared and
distributed an extensive amount of
information, including fact sheets and
brochures about the MSWLF rule.
In working with these various tribal
governments, states, state organizations,
and local governments, EPA has
provided notice to small governments of
the requirements of the MSWLF rule
and the STIR; obtained meaningful and
timely input from them; and informed,
educated, and advised small
governments on how to comply with the
requirements of the STIR and the
MSWLF rule. Through this notice, EPA
seeks input from small governments
during this rulemaking process. Thus,
any application requirements of section
203 of the Act will have been met.
List of Subjects
40 CFR Part 239
Environmental protection,
Administrative practice and procedure,
municipal solid waste landfills, non-
municipal solid waste, State/Tribal
permit program approval, and adequacy..
40 CFR Part 258
Environmental protection, Reporting
and recordkeeping requirements, Waste
treatment and disposal, Water pollution
control.
Authority: These regulations are issued
under authority of the Resource Conservation
and Recovery Act, 42 U.S.C. 6901.
Dated: December 12,1995.
Carol M. Browner,
Administrator.
For the reasons set out in the
preamble, 40 CFR Chap. I is proposed to
be amended as follows:
1. Part 239 is added to read as follows:
PART 239—REQUIREMENTS FOR
STATE/TRIBAL PERMIT PROGRAM
DETERMINATION OF ADEQUACY
Subpart A—General
Sec.
239.1 Purpose.
239.2 Scope and definitions.
Subpart B—State/Tribal Program
Application
239.3 Components'Of program application.
239.4 Narrative description of State/Tribal
permit program.
239.5 State/Tribal legal certification.
Subpart C—Requirements for Adequate
Permit Programs
239.6 Permitting requirements.
239.7 Requirements for compliance
monitoring authority.
239.8 Requirements for enforcement
authority.
239.9 Intervention in civil enforcement
proceedings.
Subpart D—Adequacy Determination
Procedures
239.10 Criteria and procedures for making
adequacy determinations.
239.11 Approval procedures for partial
approval.
239.12 Modifications of State/Tribal
programs.
239.13 Criteria and procedures for
withdrawal of determination of
adequacy.
Authority: 42 U.S.C. 6901.
Subpart A—General
§239.1 Purpose.
This Part specifies the requirements
that State/Tribal permit programs must
meet to be determined adequate by the
EPA under section 4005(c)(l)(C) of the
Resource Conservation and Recovery
Act (RCRA or the Act) and the
procedures EPA will follow in
determining the adequacy of State/
Tribal Subtitle D permit programs or
other systems of prior approval and
conditions required to be adopted and
implemented by States under RCRA
section 4005(c)(l)(B).
§ 239.2 Scope and definitions.
(a) Scope. (1) Nothing in this Part
precludes a State/Tribe from adopting or
enforcing requirements that are more
stringent or more extensive than those
required under this Part or from
operating a permit program or other
system of prior approval and conditions
with more stringent requirements or a
broader scope of coverage than that
required under this Part.
(2) All States shall submit a Subtitle
D permit program application for an
adequacy determination for purposes of
this Part.
(3) An Indian Tribe may, within its
discretion, submit a Subtitle D permit
program application for an adequacy
determination for purposes of this Part.
(4) If EPA determines that a State/
Tribal Subtitle D permit program is
inadequate, EPA will have the authority
to enforce the Subtitle D Federal revised
criteria on the RCRA section 4010(c)
regulated facilities under the State's/
Tribe's jurisdiction.
(b) Definitions. (1) For purposes of
this part:
Administrator means the
Administrator of the United States
Environmental Protection Agency or
any authorized representative.
Approved permit program or
approved program means a State/Tribal
Subtitle D permit program or other
system of prior approval and conditions
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that has been determined to be adequate
by EPA under this part.
Approved State/Tribe means a State/
Tribe whose Subtitle D permit program
or other system of prior approval and
conditions has been determined to be
adequate by EPA under this part.
Guidance means policy
memorandum, an application for
approval under this Part, or other
technical or policy documents that
supplement State/Tribal laws and
regulations. These documents provide
direction with regard to how State/
Tribal agencies should interpret their
permit program requirements and are
consistent with State/Tribal laws and
regulations.
Implementing agency means the
State/Tribal and/or local agehcy(ies)
responsible for carrying out an approved
State/Tribal permit program.
Indian lands or Indian country means:
(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 a State; and, (3) all
Indian allotments, the Indian titles to
which have not been extinguished,
including rights of way running through
the same.
Indian Tribe or Tribe means any
Indian Tribe, band, nation, or
community recognized by the Secretary
of the Interior and exercising substantial
governmental duties and powers.
Lead State/Tribal Agency means the
State/Tribal agency which has the legal
authority and oversight responsibilities
to implement the permit program or
other system of prior approval and
conditions to ensure that Subtitle D
regulated facilities comply with the
requirements of the approved State/
Tribal permit program and/or has been
designated as lead agency.
Permit documents means permit
applications, draft and final permits, or
other documents that include applicable
design and management conditions in
accordance with the Subtitle D Federal
revised criteria and the technical and
administrative information used to
explain the basis of permit conditions.
Permit or prior approval and
conditions means any authorization,
license, or equivalent control document
issued under the authority of the State/
Tribe regulating the location, design,
operation, ground-water monitoring,
closure, post-closure care, corrective
action, and financial assurance of
Subtitle D facilities.
Regional Administrator means any
one of the ten Regional Administrators
of the United States Environmental
Protection Agency or any authorized
representative.
State/Tribal Director means the chief
administrative officer of the lead State/
Tribal agency responsible for
implementing the State/Tribal permit
program for Subtitle D regulated
facilities.
State/Tribal program or permit
program means all the authorities,
activities, and procedures that comprise
the State's/Tribe's system of prior
approval and conditions for regulating
the location, design, operation, ground-
water monitoring, closure, post-closure
care, corrective action, and financial
assurance of Subtitle D regulated
facilities.
Subtitle D regulated facilities means
all solid waste disposal facilities subject
to the revised criteria promulgated by
EPA under RCRA section 4010(c).
(2) The definitions in Part 258 apply
to all Subparts of this Part.
Subpart B—State/Tribal Program
Application
§ 239.3 Components of program
application.
Any State/Tribe that seeks a
determination of adequacy under this
Part must submit an application to the
Regional Administrator, in the
appropriate EPA Region. The
application must identify the scope of
the program for which the State/Tribe is
seeking approval (i.e., which class of
Subtitle D regulated facilities are
covered by the application). The
application also must demonstrate that
the State's/Tribe's authorities and
procedures are adequate to ensure
compliance with the relevant Subtitle D
Federal revised criteria and that its
permit program is uniformly applicable
to all the relevant Subtitle D regulated
facilities within the State's/Tribe's
jurisdiction. The application must
contain the following parts:
(a) A transmittal letter, signed by the
State/Tribal Director, requesting
program approval. If more than one
State/Tribal agency has implementation
responsibilities, the transmittal letter
must designate a lead agency and be
jointly signed by all State/Tribal
agencies with implementation
responsibilities or by the State
Governor/Tribal authority exercising
powers substantially similar to those of
a State Governor;
(b) A narrative description of the
State/Tribal permit program in
accordance with § 239.4;
(c) A legal certification in accordance
with § 239.5;
(d) Copies of all applicable State/
Tribal statutes, regulations, and
guidance; and,
(e) Copies of any State-Tribal
agreements, if a State and Indian Tribe
have negotiated agreements for the
implementation of the permit program
on Indian lands.
§ 239.4 Narrative Description of State/
Tribal Permit Program.
The description of a State's/Tribe's
program must include:
(a) An explanation of the jurisdiction
and responsibilities of all State/Tribal
agencies and local agencies
implementing the permit program and
description of the coordination and
communication responsibilities of the
lead State/Tribal agency to facilitate
communications between EPA and the
State/Tribe if more than one State/Tribal
agency has implementation
responsibilities;
(b) An explanation of how the State/
Tribe will ensure that existing and new
.facilities are permitted or otherwise
approved and in compliance with the
relevant Subtitle D Federal revised
criteria;
(c) A demonstration that the State/
Tribe meets the requirements in
§§239.6, 239.7, 239.8, and 239.9;
(d) The number of facilities within the
State's/Tribe's jurisdiction that received
waste on or after the date specified
below:
(1) For municipal solid waste landfill
units, October 9,1991.
(2) [Reserved.]
(e) A discussion of staff resources
available to carry out and enforce the
State/Tribal relevant permit program.
(f) A description of the State's/Tribe's
public participation procedures as
specified in § 239.6(a) through (c).
(g) For Indian Tribes, an assertion and
demonstration that the Tribe is
recognized by the Secretary of the
Interior; has an existing government
exercising substantial governmental
duties and powers; has adequate civil
regulatory jurisdiction (as shown in the
Tribal Legal Certification under
239.5(c)) over the subject matter and
entities to be regulated; and is
reasonably expected to be capable of
administering the federal environmental
program for which it is seeking
approval. If the Administrator has
previously determined that a Tribe has
met these prerequisites for another EPA
program authorization, then that Tribe
need provide only that information
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2603
unique to RCRA Subtitle D permit
program approval.
§ 239.5 Slate/Tribal legal certification.
(a) A State/Tribe must submit a
written certification from the Attorney
General or equivalent Tribal official that
the laws, regulations, and any
applicable guidance cited in the
application are enacted at the time the
certification is signed and are fully
effective when the State/Tribal permit
program is approved. This certification
may be signed by the independent legal
counsel for the State/Tribe, rather than
tho Attorney General or equivalent
Tribal official, provided that such
counsel has full authority to
independently represent the lead State/
Tribal Agency in court on all matters
pertaining to the State/Tribal program.
(b) If guidance is to be used to
supplement statutes and regulations, the
State/Tribal legal certification must state
that the State/Tribe has the authority to
use guidance to develop enforceable
permits which will ensure compliance
with relevant Subtitle D Federal revised
criteria and that the guidance was duly
issued in accordance with State/Tribal
law.
(c) If an applicant seeks approval of
its permit program on Indian lands, the
required legal certification shall include
an analysis of the applicant's authority
to implement the permitting and
enforcement provisions of this Part
(Subparts C and D) on those Indian
lands. The applicant shall include: a
map or legal description of the Indian
lands over which it asserts jurisdiction
and a copy of all documents such as
constitutions, by-laws, charters,
executive orders, codes, ordinances,
court decisions, and/or resolutions
which support the applicant's assertions
of authority.
(d) If any laws, regulations, or
guidance are not enacted or fully
effective when the legal certification is
signed, tho certification should specify
wtiat portion(s) of laws, regulations, or
guidance are not yet enacted or fully
effective and when they are expected to
bo enacted or fully effective.
The Agency may make a tentative
determination of adequacy using this
legal certification. The State/Tribe must
submit a revised legal certification
meeting the requirements of paragraph
(a) of this section and, if appropriate,
paragraph (b) of this section along with
all tho applicable fully enacted and
effective statutes, regulations, or
guidance, prior to the Agency making a
final determination of adequacy. If the
statutes, regulations or guidance
originally submitted under § 239.3(d)
and certified to under this section are
modified in a significant way, the
Regional Administrator will publish a
new tentative determination to ensure
adequate public participation.
Subpart C—Requirements for
Adequate Permit Programs
§ 239.6 Permitting requirements.
(a) State/Tribal law must require that:
(1) Permit documents for permit
determinations are made available for
public review and comment; and,
(2) Final permit determinations on
permit applications are made known to
the public.
(b) The State/Tribe shall have
procedures that ensure that public
comments on permit determinations are
considered.
(c) The State/Tribe must fully
describe its public participation
procedures for permit issuance and
post-permit actions in the narrative
description required under § 239.4 and
include a copy of these procedures in its
permit program application.
(d) The State/Tribe shall have the
authority to collect all information
necessary to issue permits that are
adequate to ensure compliance with the
relevant Subtitle D Federal revised
criteria.
(e) For municipal solid waste landfill
units, State/Tribal law must require
that: :
(1) Prior to construction and
operation, all new municipal solid
waste landfill units shall have a permit
incorporating the conditions identified
in paragraph (e)(3) of this section;
(2) All existing municipal solid waste
landfill units shall have a permit
incorporating the conditions identified
in paragraph (e)(3) of this section;
(3) The State/Tribe shall have the
authority to impose requirements for
municipal solid waste landfill units
adequate to ensure compliance with 40
CFR part 258. These requirements shall
include:
(i) General standards which achieve
compliance with 40 CFR part 258
subpart A;
(ii) Location restrictions for municipal
solid waste landfill units which achieve
compliance with 40 CFR part 258
subpart B;
(iii) Operating criteria for municipal
solid waste landfill units which achieve
' compliance with 40 CFR part 258
subpart C;
(iv) Design criteria for municipal solid
waste landfill units which achieve
compliance with 40 CFR part 258
subpart D;
(v) Ground-water monitoring and
corrective action standards for
municipal solid waste landfill units
which achieve compliance with 40 CFR
part 258 subpart E;
(vi) Closure and post-closure care
standards for municipal solid waste
landfill units which achieve compliance
with 40 CFR part 258 subpart F; and,
(vii) Financial assurance standards for
municipal solid waste landfill units
which achieve compliance with 40 CFR
part 258 subpart G.
§ 239.7 Requirements for compliance
monitoring authority.
(a) The State/Tribe must have the
authority to:
(1) Obtain any and all information,
including records and reports, from an
owner or operator of a Subtitle D
regulated facility necessary to determine
whether the owner/operator is in
compliance with the State/Tribal
requirements;
(2) Conduct monitoring or testing to
ensure that owners/operators are in
compliance with the State/Tribal
requirements; and,
(3) Enter any site or premise subject
to the permit program or in which
records relevant to the operation of
Subtitle D regulated facilities or
activities are kept.
(b) A State/Tribe must demonstrate
that its compliance monitoring program
provides for inspections adequate to
determine compliance with the
approved State/Tribal permit program.
(c) A State/Tribe must demonstrate
that its compliance monitoring program
provides mechanisms or processes to:
(1) Verify the accuracy of information
submitted by owners or operators of
Subtitle D regulated facilities;
(2) Verify the adequacy of methods
(including sampling) used by owners or
operators in developing that
information;
(3) Produce evidence admissible in an
enforcement proceeding; and,
(4) Receive and ensure proper
consideration of information submitted
by the public.
§ 239.8 Requirements for enforcement
authority.
Any State/Tribe seeking approval
must have the authority to impose the
following remedies for violation of
State/Tribal program requirements:
(a) To restrain immediately and
effectively any person by administrative
or court order or by suit in a court of
competent jurisdiction from engaging in
any activity which may endanger or
cause damage to human health or the
environment.
(b) To sue in a court of competent
jurisdiction to enjoin any threatened or
continuing activity which violates any
statute, regulation, order, or permit
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which is part of or issued pursuant to
the State/Tribal program.
(c) To sue in a court of competent
jurisdiction to recover civil penalties for
violations of a statute or regulation
which is part of the State/Tribal
program or of an order or permit which
is issued pursuant to the State/Tribal
program.
§ 239.9 Intervention in civil enforcement
proceedings.
Any State/Tribe seeking approval
must provide for intervention in the
State/Tribal civil enforcement process
by providing either:
(a) Authority that allows intervention
as a right in any civil action to obtain
remedies specified in Section 239.8 by
any citizen having an interest that is or
may be adversely affected; or,
(b) Assurance by the appropriate
State/Tribal agency that:
(1) It will provide notice and
opportunity for public involvement in
all proposed settlements of civil
enforcement actions (except where
immediate action is necessary to
adequately protect human health and
the environment); and,
(2) It will investigate and provide
responses to citizen complaints about
violations; and,
(3) It will not oppose citizen
intervention when permissive
intervention is allowed by statute, rule,
or regulation.
Subpart D—Adequacy Determination
Procedures
§ 239.10 Criteria and procedures for
making adequacy determinations.
(a) The State/Tribal Director seeking
an adequacy determination must submit
to the appropriate Regional
Administrator an application in
accordance with § 239.3.
(b) Within 30 days of receipt of a
State/Tribal program application, the
Regional Administrator will review the
application and notify the State/Tribe
whether its application is
administratively complete in
accordance with the application
components required in § 239.3. The
180-day review period for final
determination of adequacy, described in
paragraph (d) of this section, begins
when the Regional Administrator deems
a State/Tribal application to be
administratively complete.
(c) After receipt and review of a
complete application, the Regional
Administrator will make a tentative
determination on the adequacy of the
State/Tribal program. The Regional
Administrator shall publish the
tentative determination on the adequacy
of the State/Tribal program in the
Federal Register. Notice of the tentative
determination must:
(1) Specify the Regional
Administrator's tentative determination;
(2) Afford the public at least 30 days
after the notice to comment on the
State/Tribal application and the
Regional Administrator's tentative
determination;
(3) Include a specific statement of the
areas of concern, if the Regional
Administrator indicates the State/Tribal
program may not be adequate;
(4) Note the availability for inspection
by the public of the State/Tribal permit
program application;
(5) Indicate that a public hearing will
be held by EPA if sufficient public
interest is expressed during the
comment period. The Regional
Administrator may determine when
such a hearing is necessary to clarify
issues involved in the tentative
adequacy determination. If held, the
public hearing will be scheduled at least
45 days from public notice of such
hearing. The public comment period
may be continued after the hearing at
the discretion of the Regional
Administrator.
(d) Within 180 days of determining
that a State/Tribal program application
is administratively complete, the
Regional Administrator will make a
final determination of adequacy after
review and consideration of all public
comments, unless the Regional
Administrator after consultation with
the State/Tribal Director agrees to
extend the review period. The Regional
Administrator will give notice of the
final determination in the Federal
Register. The notice must include a
statement of the reasons for the
determination and a response to
significant comments received.
(e) For all States/Tribes that do not
submit an application, the
Administrator or Regional
Administrator may issue a final
determination of inadequacy in the
Federal Register declaring those State/
Tribal permit programs inadequate to
ensure compliance with the relevant
Subtitle D Federal revised criteria. Such
States/Tribes may apply later for a
determination of adequacy.
§ 239.11 Approval procedures for partial
approval.
(a) The EPA may partially approve
State/Tribal permit programs that do not
meet all of the requirements in § 239.6
(e](3) (i.e., do not incorporate all of the
relevant Subtitle D Federal revised
criteria). Such permit programs may be
partially approved if:
(1) The appropriate Regional
Administrator determines that the
State's/Tribe's permit program largely
meets the technical requirements of
Section 239.6 and meets all other
requirements of this rule;
(2) Changes to a specific part(s) of the
State/Tribal permit program are
required in order for the State/Tribal
program to fully meet the requirements
of Section 239.6; and,
(3) Provisions not included in the
partially approved portions of the State/
Tribal permit program are clearly
identifiable and separable subsets of the
relevant Subtitle D Federal revised
criteria.
(b) A State/Tribe applying for partial
approval must include in its application
a schedule to revise the necessary laws,
regulations, and/or guidance to obtain
full approval within two years of final
approval of the partial permit program.
The Regional Administrator and the
State/Tribal Director must agree to the
schedule.
(c) The application for partial
approval must fully meet the
requirements of subparts B and C of this
part.
(d) States/Tribes with partially
approved permit programs are only
approved for those relevant provisions
of the Subtitle D Federal revised criteria
included in the partial approval.
(e) Any partial approval adequacy
determination made by the Regional
Administrator pursuant to this section
and § 239.10 shall expire two years from
the effective date of the final partial
program adequacy determination unless
the Regional Administrator grants an
extension. States/Tribes seeking an
extension must submit a request to the
appropriate Regional Administrator,
must provide cause for missing the
deadline, and must supply a new
schedule to revise necessary laws,
regulations, and/or guidance to obtain
full approval. The appropriate Regional
Administrator will decide if there is
cause and the new schedule is realistic.
If the Regional Administrator extends
the expiration date, the Region will
publish a notice in the Federal Register
along with the new expiration date. A
State/Tribe with partial approval shall
submit an amended application meeting
all of the requirements of part 239 and
have that application approved by the
two-year deadline or the amended date
set by the Regional Administrator.
(f) The Regional Administrator will
follow the adequacy determination
procedures in § 239.10 for all initial
applications for partial program
approval and follow the adequacy
determination procedures in § 239.12(f)
for any amendments for approval for
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2605
unapproved sections of the relevant
Subtitle D Federal revised criteria.
§ 239.12 Modifications of State/Tribal
programs.
(a) Approved State/Tribal permit
programs may be modified for various
reasons, such as changes in Federal or
Stale/Tribal statutory or regulatory
authority.
(b) If (he Federal statutory or
regulatory authorities that have
significant implications for State/Tribal
permit programs change, approved
State/Tribes may be required to revise
their permit programs. These changes
may necessitate submission of a revised
application. Such a change at the
Federal level and resultant State/Tribal
requirements would be made known to
the States/Tribes either in the Federal
Register containing the change or
through the appropriate EPA Regional
Office.
(c) States/Tribes that modify their
programs must notify the Regional
Administrator of the modifications.
Program modifications include changes
in Stale/Tribal statutory or regulatory
authority or relevant guidance or
shifting of responsibility for the State/
Tribal program within the lead agency
or to a new or different State/Tribal
agency or agencies. Changes to the
State's/Tribe's permit program as
described in its application which may
result in the program becoming
inadequate must be reported to the
Regional Administrator. In addition,
changes to a State's/Tribe's basic
statutory or regulatory authority or
guidance which were not part of the
State's/Tribe's initial application, but
may have a significant impact on the
adequacy of the State's/Tribe's permit
program, also must be reported to the
Regional Administrator.
(d) Stales/Tribes must notify the
appropriate Regional Administrator of
all permit program modifications within
a time-frame agreed to by the State/
Tribal Director and the Regional
Administrator.
(o) The Regional Administrator will
roviow the modifications and determine
whether the State/Tribal Director must
submit a revised application. If a revised
application is necessary, the Regional
Administrator will inform the State/
Tribal Director in writing that a revised
application is necessary, specifying the
required revisions and establishing a
schedule for submission of the revised
application.
if) For all revised applications, and
amended applications in the case of
partially approved programs, the State/
Tribe must submit to the appropriate
Regional Administrator an amended
application that addresses those
portions of its program that have
changed or are being amended. The
Regional Administrator will make an
adequacy determination using the same
criteria as used for the initial
application.
(g) For revised applications that do
not incorporate permit programs for
additional classifications of Subtitle D
regulated facilities and for all amended
applications in the case of partially
approved programs, the appropriate
Regional Administrator shall provide for
public participatibn using the
procedures outlined in § 239.10 or, at
the Regional Administrator's discretion,
using the following procedures.
(1) The Regional Administrator will
publish an adequacy determination in
the Federal Register summarizing the
Agency's decision and the portion(s) of
the State/Tribal permit program affected
and providing an opportunity to
comment for a period of at least 30 days.
(2) The adequacy determination will
become effective sixty (60) days
following publication if no adverse
comments are received. If EPA receives
comments opposing its adequacy
determination, the Regional
Administrator will review these
comments and publish another Federal
Register notice either affirming or
revising the initial decision and
responding to public comments.
(h) For revised applications that
incorporate permit programs for
additional classifications of Subtitle D
regulated facilities, the appropriate
Regional Administrator will follow the
procedures in § 239.10.
§ 239.13 Criteria and procedures for
withdrawal of determination of adequacy.
(a) The Regional Administrator may
initiate withdrawal of a determination
of adequacy when the Regional
Administrator has reason to believe that
a State/Tribe no longer has an adequate
permit program or adequate authority to
administer and enforce an approved
program in accordance with this Part.
(D) Upon receipt of substantive
information sufficient to indicate that a
State/Tribal program may no longer be
adequate, the Regional Administrator
shall inform the State/Tribe in writing
of the information.
(c) If, within 45'days of the State's/
Tribe's receipt of the information in
paragraph [b) of this section, the State/
Tribe demonstrates to the satisfaction of
the Regional Administrator that the
State/Tribal program is adequate (i.e., in
compliance with this part), the Regional
Administrator shall take no further
action toward adequacy withdrawal and
shall so notify the State/Tribe and any
personfs) who submitted information
regarding the adequacy of the State's/
Tribe's program and authorities.
(d) If the State/Tribal Director does
not demonstrate the State's/Tribe's
compliance with this Part to the
satisfaction of the Regional
Administrator, the Regional
Administrator shall list the deficiencies
in the program and negotiate with the
State/Tribe a reasonable time for the
State/Tribe to complete such action to
correct deficiencies as the Regional
Administrator determines necessary. If
these negotiations reach an impasse, the
Regional Administrator shall establish a
time period within which the State/
Tribe must correct any program
deficiencies and inform the State/Tribal
Director of the time period in writing.
(e) Within the schedule negotiated by
the Regional Administrator and the
State/Tribal Director, or set by the
Regional Administrator, the State/Tribe
shall take appropriate action to correct
deficiencies and shall file with the
Regional Administrator a statement
certified by the State/Tribal Director
describing the steps taken to correct the
deficiencies.
(f) If the State/Tribe takes appropriate
action to correct deficiencies, the
Regional Administrator shall take no
further action toward adequacy
withdrawal and shall so notify the
State/Tribe and any person(s) who
submitted information regarding the
adequacy of the State's/Tribe's permit
program. If the State/Tribe has not
demonstrated its compliance with this
Part to the satisfaction of the Regional
Administrator, the Regional
Administrator shall inform the State/
Tribal Director and may initiate
withdrawal of determination of
adequacy.
(g) The Regional Administrator shall
initiate withdrawal of determination of
adequacy by publishing the tentative
withdrawal of adequacy of the State/
Tribal program in the Federal Register.
Notice of the tentative determination
must:
(1) Afford the public at least 30 days
after the notice to comment on the
Regional Administrator's tentative
determination;
(2) Include a specific'statement of the
Regional Administrator's areas of
concern and reason to believe the State/
Tribal program may no longer be
adequate; and,
(3) Indicate that a public hearing will
be held by EPA if sufficient public
interest is expressed during the
comment period or when the Regional
Administrator determines that such a
hearing might clarify issues involved in
the tentative adequacy determination. If
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held, the public hearing will be
scheduled at least 45 days from notice
of such hearing. The public comment
period may be continued after the
hearing at the discretion of the Regional
Administrator.
(h) If the Regional Administrator
finds, after the public hearing (if any)
and review and consideration of all
public comments, that the State/Tribe is
in compliance with this Part, the
withdrawal proceedings shall be
terminated and the decision shall be
published in the Federal Register. The
notice must include a statement of the
reasons for this determination and a
response to significant comments
received. If the Regional Administrator
finds that the State/Tribal program is
not in compliance with this Part by the
date prescribed by the Regional
Administrator or any extension
approved by the Regional
Administrator, a final notice of
inadequacy shall be published in the
Federal Register declaring the State/
Tribal permit program inadequate to
ensure compliance with the relevant
Subtitle D Federal revised criteria. The
notice will include a statement of the
reasons for this determination and
response to significant comments
received.
(i) States/Tribes may seek a
determination of adequacy any time
after a determination of inadequacy.
PART 258—SOLID WASTE DISPOSAL
CRITERIA
2. The authority cite for part 258
continues to read as follows:
Authority: 42 U.S.C. 6907(a](3), 6912(a),
6944(a) and 6949(c); 33 U.S.C. 1345 (d) and
(e).
3. Section 258.2 is amended by
revising the definitions for "Director of
an approved State", "State" and "State
Director" to read as follows:
§258.2 Definitions.
*****
Director of an approved State means
the chief administrative officer of a
State/Tribal agency responsible for
implementing the State/Tribal permit
program that is deemed to be adequate
by EPA under regulations published
pursuant to sections 2002 and 4005 of
RCRA.
State means any of the several States,
the District of Columbia, the
Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa,
the Commonwealth of the Northern
Mariana Islands, and Indian Tribes,
although Tribes are excluded from the
definition for purposes of Subpart G of
Part 258 (Financial Assurance}.
State Director means the chief
administrative officer of the lead State/
Tribal agency responsible for
implementing the State/Tribal permit
program for Subtitle D regulated
facilities.
*****
[FR Doc. 96-878 Filed 1-25-96; 8:45 am]
BILLING CODE: 6560-50-P
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