oEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER
9541.02-84
TITLE: Jurisdiction and Implementation of the Hazardous
Waste Program on Indian Lands
APPROVAL DATE: 03/05/84
EFFECTIVE DATE: 03/05/84
ORIGINATING OFFICE:
81 FINAL
D DRAFT
STATUS:
osw
]
[ ]
[ ]
[ ]
A- Pending OMB approval
B- Pending AA-OSWER approval
C- For review &/or comment
D- In development or circulating
REFERENCE (other documents):
headquarters
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
-------
PART 271 SUBPART A - FINAL AUTHORIZATION
DOC: 9541.02(84)
Key Words:
Regulations
Subject:
Addressee:
Originator:
Source Doc:
Date:
Summary:
State Authorization, Indian Lands
40 CFR 271
Jurisdiction and Implementation of the Hazardous Waste Program
on Indian Lands
Regional Division Directors, Regions I-X
Bruce R. Weddle, Acting Director, State Programs and Resource
Recovering Division
#9541.02(84)
3-5-84
States seeking to obtain authorization for the RCRA program on Indian
lands must demonstrate their -jurisdiction in the Attorney General's statement -
when applying for final authorization. The State must show clear and unambiguous
Congressional delegation of authority over Indian lands. *
EPA will continue to administer the RCRA program on Indian lands if a
State does not request and obtain authorization over such lands. EPA will seek
to involve Tribal' governments in the administration of its RCRA programs on
Indian lands.
Every Federal Register notice granting or denying RCRA authorization for a
State which has Indian lands within its boundaries must state whether EPA or
the State will "operate the RCRA program on Indian lands.
-------
9541.02 (84)
T:. - .,•-.. .^ (.-„•. .- '» ' ••• - - '. ...; - ^ ^
*• I
f?
09
C3
M «
IE
- e
SUBJICTi Jurisdiction; and Implementation of the Hazardous *" £
Haste Program on Indian Lands *
£
fBOHs Bruce R. weddle J
Acting Director, State Programs and Resource ^
Recovery Division (WH-563) 09
ee>
TOi Begional Division Directors/ legions I-I
-------
- 2 -
authorise -the State to operate the KCXA program on Indian land*
in the State.1
The fteaourea Conservation and Recovery Act doe a not addreea
authorization of the ACRA program on Indian landa. Except for
defining Indian tribes aa a aninioipality in J1004, RCRA is ailant
in thia area. Therefore, if a State wiahea to aaaert juriediction
over Indian landa within ita boundaries, it am at show some oth«r
elear and unaatbiguoua Congreaaional directive granting auch
authority. Abaant auch claar directivea, EPA will continue to
operate the KCRA program on Indian landa.
Tha praaidant'a policy on Indian affaira wae outllnad in a
atatament releaaed on January 24, 1983. Tha policy aaphaaixas
the inDortanc« of aaIf-government by the Indian tribes and, at the
aaaw tin*, a policy of direct govern»ent-to-govern»ent relation-
ahip (i.e.. Federal to tribal government). Thia policy leavea
little room for 8ta€e authorisation of the XCHA program on Indian
landa unlaaa there ia a clear Congreaaional directive to the
contrary.
II. Authorization of Statea on Indian Lands
Given the tide of Indian law, it will be extremely difficult
for a State to a how clear and unambiguoua Congreaaional intent
that it haa primacy over the hazardous waate waste program on
Indian lands. The preaent trend in Indian law aupports tribal
regulatory authority aa opposed to State authority over pollution
aources within the borders of the reservation.
Some examples of aucceaaful assertions by Statea to operate
programa on Indian lands may be found, however, in the body of
Indian law. For example, Oklahoma successfully asserted primacy
over the UIC program on Indian landa in the
-------
- 3 -•
analysis of the lagal baa Is Cor tha State's claim of jurisdiction
over Indian landa in tha Attorney Cenaral's statement submitted
in tha final authorisation package. To obtain XCXA jurisdiction
«v«r Indian landa, tha State, must show olaar Congressional intent
to grant this authority. This intent must b« clearly stated in a
padaral atatute, a treaty with an Indian triba, or unambiguous
lagialatlva history. EPA will than avaluata tha data as a matter
of Paderal Indian lav. Bacauae this is a question of federal lav,
hovavar* we will not nacaaaarily dafar to tha stats Attorney
Oaoaral'a opinion, as we ganarally do on questions of interpreta-
tions of Stats law.
Tha silence on this subject in our federal Register notices
has been confusing. Every XCRA authorisation notice for a State
that haa an Indian reservation must state the status of those
Indian landa, i.e., whether IPA or the State will operate the RCRA
program. Zf the State has successfully asserted such jurisdiction,
tha notice must include the basis for such an aasertion, i «a-«, the
atatute or traaty which gives it clear and unambiguous power to
oparsta tha XCXA program on Indian lands.
Decision
States may aeek authorisation for tha XCXA program on Indian
landa. In order to obtain such authorisation, tha Stats must
demonstrate its jurisdiction in the Attorney General's statement
whan applying for final authorization. The State must show clear
and unambiguous Congressional delegation of authority over Indian
lands.
If a State doas not requast and obtain authorisation over
Indian lands, EPA will continue to administer tha XCRA program on
those lands. In keeping with the president's Indian Policy, the
Agency will aaek to involve Tribal governments in tha administra-
tion of EPA's XCKA programs on Indian lands. This issue will b«
daalt with in further detail in the forthcoming EPA Indian policy
and subsequent guidances.
Every Federal Reglater notice granting or denying XCXA
authorisation for a State which has Indian landa within its
boundaries muat address the atatus of those lands, i.e., whether
SPA or tha State will oparsts tha XCXA program on Indian lands.
cci Xagional Counsels, Regions I-X
Meg Silver
-------
MONOGRAPH INPUT FORM
HAZARDOUS WASTE DATABASE
CALL NUMBER QS>U)gR 9541.02-84
OTHERINFO (WHICH OTHER EPA LIBRARIES HAVE DOC^ AND CALLNU IF DIFFERENT)
Q\[ re.c.\Dv\(x\ \ibrcyr\e.2>...--. A/E1SL-.'D^)v\MgT, trrfeoo . C\.nc'
TITLE Jurisdiction and Implementation o£ the Hazardous Waste Program
on Indian Lands
AU T HO R
CORPORATE SOURCE QSUJ
CONTACT PERSON
BIBLIOGRAPHIC INFORMATION (CITY, PUBLISHER, DATE)
, DC; as£9/V ^r. 5, 1984 __
ACQUISITION INFORMATION
LOCATION
&D
TYPE DOCUMENT
KEYWORDS D\rec.V\V€S ,
/
GEOGRAPHIC CODE
ABSTRACT
?*vc
------- |