Yankton Sioux Tribe v. U.S. Environ. Protection, Civ 96-4268.

• Decision Date: 11 December 1996
• Docket Number: No. Civ 96-4268.,Civ 96-4268.
• Citation: 950 F.Supp. 1471
• Parties: YANKTON SIOUX TRIBE, a federally recognized tribe of Indians, and its individual members, and Darrell E. Drapeau, individually, a member of the Yankton Sioux Tribe, Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. District Court — District of South Dakota

950 F.Supp. 1471

YANKTON SIOUX TRIBE, a federally recognized tribe of Indians, and its individual members, and Darrell E. Drapeau, individually, a member of the Yankton Sioux Tribe, Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. Civ 96-4268.

United States District Court, D. South Dakota, Southern Division.

December 11, 1996.

James G. Abourezk, Abourezk Law Offices, Sioux Falls, SD, for petitioners.

Joshua M. Levin, U.S. Department of Justice, Washington, DC, Karen E. Schreier, U.S. Attorney, Bonnie P. Ulrich, U.S. Attorney's Office, Sioux Falls, SD, Andrew Gordon, Thomas Speicher, Office of General Counsel, Washington, DC, Thomas A Speicher, U.S. Environmental Protection Agency, Denver, CO, Andrew Gordon, Environmental Protection Agency, Washington, DC, Jack McGraw, U.S. Environmental Protection Agency, Denver, CO, Joshua M. Levin, Department of Justice, Land & Natural Resources Division, Washington, DC, Lois J. Schiffer, U.S. Department of Justice, Environmental Defense Section, Washington, DC, for respondent.

MEMORANDUM OPINION AND ORDER

PIERSOL, District Judge.

The petitioners, Yankton Sioux Tribe and Darrell E. Drapeau (the Tribe), filed on September 17, 1996, and then later amended, a petition for judicial review of a June 26, 1996, final decision of the United States Environmental Protection Agency, Region VIII (EPA). In the final administrative decision at issue, the EPA granted the request of Southern Missouri Recycling and Waste Management District, the owner/operator of a Subtitle D municipal solid waste landfill under construction on non-Indian land within the exterior boundaries of the Yankton Sioux Reservation, to waive the composite liner requirement¹ for the landfill facility pursuant to 40 C.F.R. § 258.40(e). In accordance with an expedited schedule set by the Court, the EPA filed its answer to the amended petition, the complete administrative record that existed before the EPA at the time it reached its final decision, and its motion for summary judgment. The Tribe also filed a brief in opposition to the EPA's summary judgment motion. The Court has considered the lengthy administrative record, the parties' briefs, and oral arguments presented on Wednesday, December 4, 1996. For the reasons stated below, the Court grants the EPA's motion for summary judgment and affirms the EPA's final decision to waive the composite liner requirement in favor of the District under § 258.40(e).

I. Jurisdiction, Standard of Review, and Issues Presented

The Court has jurisdiction of this proceeding under 28 U.S.C. § 1331 and 5 U.S.C. § 702. The EPA challenged the Court's jurisdiction in its answer to the amended petition, but the EPA did not raise and brief the issues of jurisdiction and venue in its motion for summary judgment, and thus, the Court deems any such issues abandoned. Even though the case is before the Court procedurally on the EPA's motion for summary judgment, the scope of the Court's review is far more narrow than that ordinarily permitted under Federal Rule of Civil Procedure 56.

Under the Administrative Procedures Act, the Court must make an independent decision based upon the identical record that was before the agency. See 5 U.S.C. § 706(2)(A); Wilkins v. Secretary of the Interior, 995 F.2d 850, 853 (8th Cir.1993), cert. denied, 510 U.S. 1091, 114 S.Ct. 921, 127 L.Ed.2d 214 (1994). The Court must accept the EPA's findings and conclusions unless they are arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. Wilkins, 995 F.2d at 853. An arbitrary and capricious decision exists if the EPA "`relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'" Von Eye v. United States, 92 F.3d 681, 685 (8th Cir.1996) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983)).

The Tribe argues in its brief that the EPA's decision to waive the composite liner requirement is arbitrary and capricious because the decision is inconsistent with the agency's own unambiguous regulation, 40 C.F.R. § 258.40(e),² the agency's action effectively modified or amended the regulation in violation of the Administrative Procedures Act, and the technical basis for the waiver is unsupported. The EPA resists each of the Tribe's claims.

II. Procedural History and The Administrative Record

On June 14, 1995, this Court required the District to install a composite liner in its facility for three reasons: (1) the EPA had not made a final decision on the applications submitted to it by the State of South Dakota and the Yankton Sioux Tribe, each requesting a determination of adequacy of their Subtitle D Municipal Solid Waste Permit Programs over lands within the exterior boundaries of the Yankton Sioux Reservation; (2) a federal regulation requires installation of a composite liner and leachate collection system in a Subtitle D facility if noncontainerized leachate derived from the facility will be recirculated into the open cells, as was planned at the District's facility, see 40 C.F.R. § 258.28(a)(2); and (3) at trial the District offered to construct the facility with a composite liner. Yankton Sioux Tribe v. Southern Missouri Waste Management Dist., 890 F.Supp. 878, 890 (D.S.D.1995). The District did not appeal the Court's Order and Judgment requiring the composite liner.³ Rather, in September 1995, District officials and members of the District's engineering firm, Bernhard, Eisenbraun, and Associates, through the assistance of South Dakota's congressional delegation, arranged a meeting in Washington, D.C., with Carol Browner, EPA Administrator, to seek an administrative waiver of the composite liner requirement. (Admin.Rec. at 144-200, 213-419.)

At the meeting, held on September 19, 1995, District participants informed Administrator Browner that the State of South Dakota had determined in 1993 that the District's proposed facility could be built without a composite liner, but this Court had ruled in 1995 that the District must meet the federal landfill design criteria, including the composite liner.⁴ The District indicated that the composite liner would result in substantial additional cost to be borne by a rural population. (Id. at 417.) Administrator Browner referenced this Court's June 1995 ruling that the Yankton Sioux Reservation has not been disestablished and observed that the EPA could not delegate its Subtitle D enforcement authority to another entity without a demonstration of that entity's jurisdiction over the lands in question. (Id. at 418.) Representatives of the State of South Dakota argued that the EPA should delegate its enforcement authority to the State for all non-Indian lands located within the exterior boundaries of the Reservation, particularly because this Court held in Yankton Sioux Tribe that the Tribe did not have civil jurisdiction to regulate the District's proposed landfill facility located on non-Indian land within the Reservation. The State argued that, in light of legal developments in federal Indian law, the EPA should revise its 1984 Indian Policy which favored granting EPA authority to Tribes over non-Indians.⁵ (Id. at 419, 429-32.) South Dakota's United States Representative Tim Johnson stated that certainty was needed. South Dakota's Senator Tom Daschle noted that timing was crucial because the contractor was on site working, the communities involved should be rewarded for their efforts, and that he was prepared to address the District's concerns legislatively if an administrative decision could not be reached. (Id. at 418-19.) South Dakota Senator Larry Pressler was present at the meeting, but the minutes do not reflect that he spoke.⁶ Administrator Browner informed the group that EPA wished to provide flexibility for the appropriate parties to arrive at a reasonable solution, that EPA would decide whether it had the legal authority to waive the composite liner requirement at the District's request, and that, if the EPA were to consider directly whether the liner requirement should be waived, the EPA would have to be satisfied that environmental standards were met. (Id. at 419.)

On September 21, 1995, six days after the Washington meeting, District officials sent a letter to Nettie Myers, Secretary of the South Dakota Department of Environment and Natural Resources, asking the State to submit an application to the EPA under 40 C.F.R. § 258.40(e) seeking approval of the State's 1993 determination that the facility could be built without the composite liner. (Id. at 420.) On September 29, 1995, Dave Schaller, Chief of the EPA Region VIII Solid Waste Section, notified Brian Bernhard of the District's engineering firm that the EPA would permit the District to petition the agency directly for a waiver of the composite liner requirement. (Id. at 434.) Upon learning that the State had already begun work on an application, Schaller stated that the EPA wished to receive an application from the District, not from the State. (Id.) In a subsequent telephone conversation between State and District officials, however, they agreed that they would each submit an application to the EPA. (Id.) Schaller confirmed the substance of his telephone call in a letter to Bernhard dated October 3, 1995.

On the same day, October 3, 1995, the State filed its application with EPA Region VIII requesting that the EPA grant a composite liner waiver for the District under § 258.40(e). Although the administrative record before the Court contains the cover letter written to EPA Region VIII Administrator William Yellowtail by Nettie Myers, the supporting application materials are not included. (Id. at 436-37.) Her letter certified that "the...