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MSW Landfills in Indian Country: Draft Guidance

Site-Specific Flexibility Requests for Municipal Solid Waste Landfills in Indian Country

This draft guidance document describes a process by which municipal solid waste landfill (MSWLF) owners and operators in Indian Country can request design and operating flexibility that is available to landfill owners and operators in states with the U.S. Environmental Protection Agency (EPA)-approved MSWLF permitting programs. The process encourages active dialogue among tribes, MSWLF owners and operators, EPA, and the public. This guidance is designed so that the Agency works in partnership with tribes.

Federal regulations set MSWLF standards for location, design, operation, ground-water monitoring, corrective action, closure and post-closure care, and financial assurance. For many of these standards, 40 CFR Part 258 establishes a flexible performance standard in addition to the technical standard. EPA approves state permitting programs that allow owners and operators to meet these performance standards using approaches other than those specifically contained in the federal regulations. A federal appeals court, however, ruled in the October 1996 Backcountry Against Dumps v. EPA case that EPA cannot similarly approve tribal landfill permitting programs.

EPA, therefore, developed the site-specific request process to encourage tribal involvement through means other than approved permitting programs. The tribe in whose part of Indian Country a landfill is proposed reviews and comments on the flexibility requests of non-tribal owners and operators or individual tribal members before passing them on to EPA, which considers the findings of the tribe when evaluating the flexibility request. In cases where the tribal government is the owner or operator, EPA handles flexibility requests directly. If EPA approves a flexibility request, it will issue a site-specific rule allowing the use of alternative approaches.

Federal Register Notice and Supporting Documents

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