Backcountry Against Dumps v. E.P.A., 95-1343
| Decision Date | 29 October 1996 |
| Docket Number | No. 95-1343,95-1343 |
| Parties | , 321 U.S.App.D.C. 331, 65 USLW 2311, 27 Envtl. L. Rep. 20,471 BACKCOUNTRY AGAINST DUMPS and Donna Tisdale, Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Muht-Hei, Inc., et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petition for Review of an Order of the Environmental Protection Agency.
Alan C. Waltner, Oakland, CA, argued the cause and filed the briefs, for petitioners.
Robert I. Dodge, Attorney, United States Department of Justice, Washington, DC, argued the cause for respondent. With him on the brief were Lois J. Schiffer, Assistant Attorney General, and Andrew G. Gordon, Attorney, Environmental Protection Agency. J. Steven Rogers, Attorney, United States Department of Justice, entered an appearance.
Kevin Gover, Albuquerque, NM, argued the cause for intervenor Campo Band of Mission Indians. With him on the brief were Kathrine E. Currie and Taylor O. Miller, Sacramento, CA. Irwin D. Karp, Sacramento CA, and Kimberly M. McCormick, San Diego, CA, entered appearances.
John H. Dossett, Washington, DC, was on the brief for amicus curiae National Congress of American Indians. Joel H. Mack, San Diego, CA, entered an appearance for intervenors Muht-Hei, Inc., et al.
Before: WALD, ROGERS and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
The Campo Band of Mission Indians, a small tribe in San Diego County, California, applied to the Environmental Protection Agency for approval of its solid waste permitting plan pursuant to the Resource Conservation and Recovery Act. That Act requires states to submit solid waste permitting plans to the agency for approval. The Act defines Indian tribes as municipalities, not states, and says nothing about municipalities submitting permitting plans for the agency's review. The EPA nonetheless determined that it had authority to approve the tribe's permitting program. Because we find that the Act does not give the EPA such authority, we grant the petition for review and vacate the agency's decision.
The Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq. (1994), establishes a "comprehensive federal program to regulate the handling of solid wastes." Environmental Defense Fund v. U.S. EPA, 852 F.2d 1309, 1310 (D.C.Cir.1988). Subtitle C addresses the treatment, storage, and disposal of hazardous waste. 42 U.S.C. §§ 6921-6939e. Subtitle D governs the disposal of nonhazardous solid waste and of small-quantity hazardous solid waste not regulated under Subtitle C. 42 U.S.C. §§ 6941-6949a.
As originally enacted, Subtitle D required the EPA to publish regulations containing criteria for determining which solid-waste facilities should be classified as "landfills" and which as "open dumps;" "open dumping" was prohibited. 42 U.S.C. § 6945(a). In 1984, Congress amended RCRA to require the EPA to issue additional revised criteria for facilities "that may receive hazardous household wastes or hazardous wastes from small quantity generators." 42 U.S.C. § 6949a(c). Codified at 40 C.F.R. part 258 (1995), the agency's revised criteria establish minimum federal standards to ensure that municipal solid-waste landfills--the facilities most likely to receive hazardous household waste--are designed and operated in a manner that protects human health and the environment. The revised criteria contain landfill location restrictions, landfill facility operating standards, landfill design standards, groundwater monitoring and corrective action criteria, closure and post-closure criteria, and financial assurance requirements. For all municipal solid-waste landfills operating within the jurisdiction of the United States, the revised criteria are self-implementing. This means that landfill owners and operators must comply with each element of the revised criteria with or without the oversight of a regulatory authority. 40 C.F.R. § 258.1(b). Failure to comply with the revised criteria exposes landfill owners or operators to citizen suits, 42 U.S.C. § 6972, EPA inspections, 42 U.S.C. § 6927, civil or criminal enforcement proceedings, 42 U.S.C. § 6928, or emergency abatement actions, 42 U.S.C. § 6973.
Section 6945(c), also added by the 1984 Amendments, requires states to implement permit programs to ensure that landfill facilities comply with the revised criteria. 42 U.S.C. § 6945(c)(1)(B). Section 6945(c)(1)(C) also directs the EPA Administrator to determine whether each state has developed an adequate solid waste permitting plan. States determined to have developed adequate programs are labeled "approved states." Approved states have distinct advantages over unapproved states: although all states must meet the part 258 operating standards, unapproved states must do so through the design standards specified in the C.F.R., while approved states may use alternative, more flexible design standards. Put another way, while the baseline requirements are the same for approved and unapproved states, approved states may use different means to reach those ends. Under the revised criteria, for example, landfill owners or operators must "cover disposed solid waste with six inches of earthen material at the end of each operating day ... to control disease vectors, fires, odors, blowing litter, and scavenging." 40 C.F.R. § 258.21(a). Approved states may permit landfill operators to use "[a]lternative materials of an alternative thickness ... if the owner or operator demonstrates that the alternative material and thickness control disease vectors, fires, odors, blowing litter, and scavenging without presenting a threat to human health and the environment." 40 C.F.R. § 258.21(b).
The focus of this case is the statute's definition of "state." Section 6903(31) defines a "state" as "any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands." 42 U.S.C. § 6903(31). Indian tribes are listed in the statute's definition of "municipality:"
The term "municipality" (A) means 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 of solid waste management, or an Indian tribe or authorized tribal organization or Alaska Native village or organization, and (B) includes any rural community or unincorporated town or village or any other public entity for which an application for assistance is made by a State or political subdivision thereof.
42 U.S.C. § 6903(13). As "municipalities," Indian tribes are eligible for federal funding to develop solid waste management and resource recovery programs, 42 U.S.C. § 6948, and are also subject to citizen suits to enforce the revised criteria. 42 U.S.C. § 6972; see Blue Legs v. U.S. Bureau of Indian Affairs, 867 F.2d 1094, 1097 (8th Cir.1989) ().
The Campo Band of Mission Indians occupies an approximately 23-square-mile reservation just north of the Mexican border in San Diego County, California. About 200 of its members live on the reservation. The tribe is governed by a General Council composed of all of its adult members.
In 1990, Mid-American Waste Systems, Inc. proposed developing a 600-acre landfill in the southeast corner of the Campo reservation. The landfill site is bordered on the east, south, and southwest by non-Indian farms and residences, including the residence of petitioner Donna Tisdale. As proposed by Mid-American, the landfill would have a 28-million-ton capacity, to be used over approximately 30 years. According to Tisdale and the other petitioner, Backcountry Against Dumps, the landfill would be the nation's largest solid-waste facility on an Indian reservation. The Bureau of Indian Affairs estimated the Band's share of facility revenues to be about $ 1.6 million a year.
Also in 1990, the tribe's General Council adopted the Tribal Environmental Policy Act of 1990 and a Solid Waste Management Code governing the construction and operation of solid-waste facilities on the reservation. These in turn established the Campo Environmental Protection Agency. With authority over all solid-waste operations on reservation land, this agency has primary responsibility for the enforcement of federal environmental laws on the reservation. The Tribe also established the Campo Band Environmental Appeals Court to hear appeals from final actions of the Campo Environmental Protection Agency, prohibited open dumping of solid waste within the reservation, and established a detailed system for managing solid waste.
In a draft application filed with the EPA in June 1993, the Campo Band sought approval of its solid waste program under section 6945(c). In reviewing the tribe's submission, the EPA relied on a draft "State/Tribal Implementation Rule" which establishes general procedures for EPA approval of tribal landfill permit programs. After receiving public comment on the tribe's plan and holding a public hearing, the EPA issued a Final Determination of Adequacy. 60 Fed.Reg. 21191 (1995). In its Final Determination, the EPA stated that, although section 6945(c) does not provide for Indian tribes to submit solid waste management plans for the agency's approval, it nevertheless "believe[d] that adequate authority exist[ed] under RCRA to allow tribes to seek an adequacy determination" for their solid waste management permitting programs. Id. In other words, the EPA treated the Campo Band as if it were a "state" for purposes of RCRA's solid waste permit provisions. Finding that the tribe's solid waste management regulations set forth "stringent standards" that met or...
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