ELR Citation: ELR 20802
No(s). Civ 96-4268 (D.S.D. Dec 11, 1996)

The court upholds the U.S. Environmental Protection Agency's (EPA's) decision to waive, under 40 C.F.R. §258.40(e), the composite liner requirement of §258.40(a)(2) for a municipal solid waste landfill on non-Native American land located within the boundaries of the Yankton Sioux Reservation in South Dakota. The court first holds that EPA's interpretation of §258.40(e) as allowing the Agency to accept a waiver application from the landfill owner/operator, rather than the state, was plainly erroneous and inconsistent with the regulation. But the Agency did not act in a manner manifestly contrary to the substantive statutes, under which Congress delegated broad authority to the Agency to promulgate regulations, or violate the Administrative Procedure Act when it developed a site-specific rule permitting the landfill owner/operator to submit a petition for the waiver directly to the Agency. The court further holds that EPA complied with applicable notice-and-comment procedures when it produced for public review the procedural and technical basis for its tentative decision, gave public notice of its tentative decision and invited public comment, held public meetings accessible to those most interested in the proceedings, accepted public comment in oral and written form, and used those comments in fashioning technical conditions placed on the waiver that was ultimately granted. In addition, the court notes that there is no evidence in the administrative record that the Agency's decision was the product of political pressure, even though South Dakota's elected officials took an active interest in EPA's process and decision. Finally, the court holds that the Agency's decision to waive the liner requirement was not arbitrary and capricious, because it is adequately supported by the scientific evidence in the administrative record.

[Related decisions are published at 26 ELR 20505 and 27 ELR 20374.]

Counsel for Petitioners
James G. Abourezk
Law Offices of James G. Abourezk
2040 W. Main St., Rapid City SD 57702
(605) 342-0097

Counsel for Respondent
Joshua M. Levin
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000