[Federal Register: September 27, 2005 (Volume 70, Number 186)]
[Proposed Rules]
[Page 56419-56425]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27se05-34]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 271 and 272
[FRL-7974-9]
South Dakota: Final Authorization of State Hazardous Waste
Management Program Revision and Incorporation by Reference of Approved
State Hazardous Waste Management Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed Rule.
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SUMMARY: South Dakota has applied to EPA for Final authorization of the
changes to its hazardous waste program under the Resource Conservation
and Recovery Act (RCRA). EPA has determined that these changes satisfy
all requirements needed to qualify for Final authorization and is
proposing to authorize the State's changes through this proposed final
action. Title 40 of the Code of Federal Regulations (CFR) Part 272 is
used by EPA to codify its decision to authorize individual State
programs and incorporates by reference those provisions of the State
statutes and regulations that are subject to EPA's inspection and
enforcement authorities as authorized provisions of the State's
program. This action also proposes to codify the authorized provisions
of the South Dakota regulations. Finally, today's document corrects
errors made in the State authorization citations published in the
August 10, 1999 and November 3, 2003 Federal Register
[[Page 56420]]
authorization documents for South Dakota.
DATES: Written comments must be received by October 27, 2005.
ADDRESSES: Submit your comments by one of the following methods: 1.
Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-
line instructions for submitting comments. 2. E-mail:
shurr.kris@epa.gov. 3. Mail: Kris Shurr, 8P-HW, U.S. EPA, Region 8, 999
18th St., Ste 300, Denver, Colorado 80202-2466, phone number: (303)
312-6139. 4. Hand Delivery or Courier: Deliver your comments to Kris
Shurr, 8P-HW, U.S. EPA, Region 8, 999 18th St., Ste 300, Denver,
Colorado 80202-2466, phone number: (303) 312-6139. Do not submit
information that you consider to be CBI or otherwise protected through
regulations.gov or e-mail. The Federal regulations.gov website is an
``anonymous access'' system which means EPA will not know your identity
or contact information unless you provide it in the body of your
comment. If you send an e-mail comment directly to EPA without going
through regulations.gov, your e-mail address will be automatically
captured and included as part of the comment that is placed in the
public docket and made available on the Internet. If you submit an
electronic comment, EPA recommends that you include your name and other
contact information in the body of your comment and with any disk or
CD-ROM you submit. If EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, EPA may not be
able to consider your comment. Electronic files should avoid the use of
special characters, any form of encryption, and be free of any defects
or viruses. Copies of the South Dakota program revision applications
and the materials which EPA used in evaluating the revisions are
available for inspection and copying at the following locations: EPA
Region 8, from 7 a.m. to 4 p.m., 999 18th Street, Suite 300, Denver,
Colorado 80202-2466, contact: Kris Shurr, phone number: (303) 312-6139,
or SDDENR, from 9 a.m. to 5 p.m., Joe Foss Building, 523 E. Capitol,
Pierre, South Dakota 57501-3181, contact: Carrie Jacobson, phone number
(605) 773-3153.
FOR FURTHER INFORMATION CONTACT: Kris Shurr, 8P-HW, U.S. EPA, Region 8,
999 18th Street, Suite 300, Denver, CO 80202-2466, phone number: (303)
312-6139 or email: shurr.kris@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Authorization of Revisions to South Dakota's Hazardous Waste Program
A. Why Are Revisions to State Programs Necessary?
States which have received Final authorization from EPA under RCRA
section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste
program that is equivalent to, consistent with, and no less stringent
than the Federal program. As the Federal program changes, States must
change their programs and ask EPA to authorize the changes. Changes to
State programs may be necessary when Federal or State statutory or
regulatory authority is modified or when certain other changes occur.
Most commonly, States must change their programs because of changes to
EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124,
260 through 266, 268, 270, 273 and 279.
B. What Decisions Have We Made in This Action?
We conclude that South Dakota's applications to revise its
authorized program meet all of the statutory and regulatory
requirements established by RCRA. Therefore, we propose to grant South
Dakota final authorization to operate its hazardous waste program with
the changes described in the authorization applications. South Dakota
has responsibility for permitting Treatment, Storage, and Disposal
Facilities (TSDFs) within its borders, except in Indian country, and
for carrying out the aspects of the RCRA program described in its
revised program application, subject to the limitations of the
Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal
requirements and prohibitions imposed by Federal regulations that EPA
promulgates under the authority of HSWA take effect in authorized
States before they are authorized for the requirements. Thus, EPA will
implement those requirements and prohibitions in South Dakota,
including issuing permits, until South Dakota is authorized to do so.
C. What Is the Effect of Today's Authorization Decision?
This decision means that facilities in South Dakota subject to RCRA
will have to comply with the authorized State requirements instead of
the equivalent Federal requirements in order to comply with RCRA. South
Dakota has enforcement responsibility under its State hazardous waste
program for violations of such program, but EPA retains its authority
under RCRA sections 3007, 3008, 3013, and 7003, which include, among
others, the authority to conduct inspections and require monitoring,
tests, analyses, or reports; and enforce RCRA requirements; suspend or
revoke permits.
This action does not impose additional requirements on the
regulated community because the regulations for which South Dakota is
being authorized by today's action are already effective and are not
changed by today's action.
D. What Happens If EPA Receives Comments That Oppose This Action?
If EPA receives comments that oppose this authorization, we will
address all public comments in a later Federal Register. You will not
have another opportunity to comment, therefore, if you want to comment
on this action, you must do so at this time.
E. What Has South Dakota Previously Been Authorized For?
South Dakota initially received Final authorization on October 19,
1984, effective November 2, 1984 (49 FR 41038) to implement the RCRA
hazardous waste management program. We granted authorization for
changes to their program on April 17, 1991, effective June 17, 1991 (56
FR 15503); September 8, 1993, effective November 8, 1993 (FR 47216);
January 10, 1994, effective March 11, 1994 (59 FR 01275); July 24,
1996, effective September 23, 1996 (61 FR 38392); May 9, 2000,
effective June 8, 2000 (65 FR 26755) and April 23, 2004, effective May
24, 2004 (69 FR 21962).
F. What Changes Are We Proposing To Authorize With Today's Action?
South Dakota submitted a final complete program revision
application on October 25, 2004, seeking authorization of their changes
in accordance with 40 CFR 271.21. We now make a final decision, subject
to receipt of written comments that oppose this action, that South
Dakota's hazardous waste program revision satisfies all of the
requirements necessary to qualify for Final authorization. Therefore,
we propose to grant South Dakota final authorization for the following
program changes:
1. Program Revision Changes for Federal Rules
South Dakota seeks authority to administer the Federal requirements
that are listed below (the Federal Citation is followed by the analog
from the Administrative Rules of South Dakota (ARSD 74:28), revised
August 29, 2004): Reissuance of the ``Mixture'' and ``Derived-From''
Rules (57 FR
[[Page 56421]]
07628, 03/03/92; 57 FR 23062, 06/01/92; 57 FR 49278, 10/30/92)
(Checklists 117A through 117A.2)/74:28:22:01; Universal Waste Rule--
Specific Provisions for Pesticides (60 FR 25492, 05/11/95) (Checklist
142C)/74:28:21:02, 74:28:22:01, 74:28:25:01, 74:28:26:01, 74:28:28:01,
74:28:30:01, and 74:28:33:01; RCRA Expanded Public Participation (60 FR
63417, 12/11/95) (Checklist 148)/74:28:26:01; Organic Air Emission
Standards for Tanks, Surface Impoundments, & Containers (59 FR 62896,
12/06/94; 60 FR 26828, 05/19/95; 60 FR 50426, 09/29/95; 60 FR 56952,
11/13/95; 61 FR 04903, 02/09/96; 61 FR 28508, 06/05/96; and 61 FR
59932, 11/25/96) (Checklists 154 through 154.6)/74:36:11:01,
74:28:21:02, 74:28:22:01, 74:28:23:01, 74:28:25:01, 74:28:26:01, and
74:28:28:01; Organic Air Emission Standards for Tanks, Surface
Impoundments, and Containers; Clarification and Technical Amendment (62
FR 64636, 12/08/97) (Checklist 163)/ 74:28:25:01, 74:28:26:01, and
74:28:28:01; Mineral Processing Secondary Materials Exclusion (63 FR
28556, 05/26/98)(Checklist 167D--revised)/ 74:28:22:01; HWIR-Media (63
FR 65874; 11/30/98) (Checklist 175)/74:28:21:01(17), 74:28:21:02,
74:28:22:01, 74:28:25:01, 74:28:26:01, 74:28:28:01, and 74:28:30:01;
Test Procedures for the Analysis of Oil and Grease and Non-Polar
Material (64 FR 26315, 05/14/99) (Checklist 180)/74:28:21:02; Petroleum
Refining Process Wastes--Clarification (64 FR 36365, 06/08/00)
(Checklist 187)/74:28:22:01 and 74:28:30:01; Hazardous Air Pollutant
Standards; Technical Corrections (65 FR 42292, 07/10/00; 66 FR 24270,
05/14/01; 66 FR 35087, 07/03/01) (Checklists 188 through 188.2)/
74:28:22:01, 74:28:25:01, and 74:28:26:01; Chlorinated Aliphatics
Listing and LDRs for Newly Identified Wastes (65 FR 67068, 11/8/00)
(Checklist 189)/74:28:22:01 and 74:28:30:01; Land Disposal Restrictions
Phase IV Deferral for PCBs in Soil (65 FR 81373, 12/26/00) (Checklist
190)/74:28:30:01; Storage, Treatment, Transportation, and Disposal of
Mixed Waste (66 FR 27218, 05/16/01) (Checklist 191)/74:28:27:01;
Mixture and Derived-From Rules Revisions (66 FR 27266, 05/16/01)
(Checklist 192A)/74:28:22:01; Land Disposal Restrictions Correction (66
FR 27266, 05/16/01) (Checklist 192B)/74:28:30:01; Change of Official
EPA Mailing Address (66 FR 34374, 06/28/01) (Checklist 193)/
74:28:21:02; Mixture and Derived-From Rules Revision II (66 FR 50332,
10/03/01) (Checklist 194)/74:28:22:01; Inorganic Chemical Manufacturing
Wastes Identification and Listing (66 FR 58258, 11/20/01; 67 FR 17119,
04/09/02) (Checklists 195 & 195.1)/74:28:22:01 and 74:28:30:01; CAMU
Amendments (67 FR 2962, 01/22/02) (Checklist 196)/74:28:21:02 and
74:28:25:01; Hazardous Air Pollutant Standards for Combustors: Interim
Standards (67 FR 6792, 02/13/02) (Checklist 197)/74:28:25:01,
74:28:26:01, 74:28:27:01, and 74:28:28:01; Hazardous Air Pollutant
Standards for Combustors: Corrections (67 FR 6968, 02/14/02) (Checklist
198)/74:28:26:01 and 74:28:27:01; Vacatur of Mineral Processing Spent
Materials Being Reclaimed as Solid Wastes (67 FR 11251, 03/13/02)
(Checklist 199)/74:28:22:01; Zinc Fertilizer Rule (67 FR 48393, 07/24/
02) (Checklist 200)/74:28:22:01, 74:28:27:01, and 74:28:30:01;
Treatment Variance for Radioactively Contaminated Batteries (67 FR
62618, 10/07/02) (Checklist 201)/74:28:30:01; Hazardous Air Pollutants
for Combustors-Corrections 2 (67 FR 77687, 12/19/02) (Checklist 202)/
74:28:26:01.
2. State-Initiated Changes
South Dakota has made amendments to its regulations that are not
directly related to any of the Federal rules addressed in Item F.1
above. These State-initiated changes are either conforming changes made
to existing authorized provisions, or the adoption of provisions that
clarify and make the State's regulations internally consistent. The
State's regulations, as amended by these provisions, provide authority
which remains equivalent to and no less stringent than the Federal laws
and regulations. These State initiated changes are submitted under the
requirements of 40 CFR 271.21(a) and include the following provisions
from the Administrative Rules of South Dakota (ARSD 74:28), revised
August 29, 2004: 74:28:21:01 introductory paragraph, 74:28:21:01(2)-
(16), 74:28:21:03, 74:28:24:01, 74:28:25:02 through 74:28:25:05,
74:28:28:02 through 74:28:28:05 and 74:28:33:01.
G. Where Are the Revised State Rules Different From the Federal Rules?
South Dakota did not make any changes that are more stringent or
broader-in-scope than the Federal rules in this rulemaking. South
Dakota did not change any previously more stringent or broader-in-scope
provisions to be equivalent to the Federal rules.
H. Who Handles Permits After the Authorization Takes Effect?
South Dakota will issue permits for all the provisions for which it
is authorized and will administer the permits it issues. EPA will
continue to administer any RCRA hazardous waste permits or portions of
permits which were issued prior to the effective date of this
authorization until South Dakota has equivalent instruments in place.
We will not issue any new permits or new portions of permits for the
provisions listed in Item G after the effective date of this
authorization. EPA previously suspended issuance of permits for other
provisions on the effective date of South Dakota's Final Authorization
for the RCRA base program and each of the revisions listed in Item F.
EPA will continue to implement and issue permits for HSWA requirements
for which South Dakota is not yet authorized.
I. How Does Today's Action Affect Indian Country (18 U.S.C. 1151) in
South Dakota?
This program revision does not extend to ``Indian country'' as
defined in 18 U.S.C. 1151. Indian country includes:
1. Lands within the exterior boundaries of the following Indian
reservations located within the State of South Dakota:
a. Cheyenne River Indian Reservation;
b. Crow Creek Indian Reservation;
c. Flandreau Indian Reservation;
d. Lower Brule Indian Reservation;
e. Pine Ridge Indian Reservation;
f. Rosebud Indian Reservation;
g. Standing Rock Indian Reservation;
h. Yankton Indian Reservation;
2. Any land held in trust by the United States for an Indian tribe;
and,
3. Any other areas which are ``Indian country'' within the meaning
of 18 U.S.C. 1151.
II. Corrections
A. Corrections to August 10, 1999 (64 FR 43331) Proposed Authorization
Document
There were typographical errors and omissions in the table
published as part of the August 10, 1999 (64 FR 43331) authorization
notice for South Dakota. The corrections for the affected entries are
as follows (the corrections have been italicized):
1. In the entry for Checklist 82, insert ``74:28:25:05'' after
``74:28:23:01'' and insert ``74:28:28:05'' after ``74:28:26:01'';
2. In the entry for Checklist 92, insert ``74:28:25:05'' after
``74:28:23:01'' and insert ``74:28:28:05'' after ``74:28:26:01'';
3. In the entry for Checklist 120, insert ``74:28:25:05;
74:28:28:05'' after ``74:28:22:01''; and
4. In the entry for Checklist 142A, insert ``74:28:23:01'' after
``74:28:22:01''.
[[Page 56422]]
B. Corrections to November 3, 2003 (68 FR 62264) Proposed Authorization
Document
There were typographical errors and omissions in the State
citations published as part of the November 3, 2003 (68 FR 62264)
authorization notice for South Dakota. The affected entries in Section
F, ``What Changes Are We Proposing To Authorize With Today's Action?''
are shown below. The corrections have been italicized.
1. All references to ``78:28'' are corrected to read ``74:28''
2. The State citation ``74:28:21:01'' is removed from the entry for
Hazardous Air Pollutant Standards for Combustors (Checklist 182).
3. The entry for ``Toxicity Characteristics Revision as of June 30,
2000'' is revised to read as follows: Toxicity Characteristics Revision
as of June 30, 2000 (Consolidated Checklist includes 55 FR 11798, 3/29/
90 and 55 FR 26986, 6/29/90 (Checklist 74)/74:28:22:01, 74:28:25:01,
74:28:28:01 and 74:28:30:01; 55 FR 40834, 10/5/90, 56 FR 03978, 2/1/91,
and 56 FR 13406, 4/2/91 (Checklist 80)/74:28:22:01; 56 FR 05910, 2/13/
91 (Checklist 84)/74:28:22:01; 57 FR 30657, 7/10/92 (Checklist 108)/
74:28:22:01 and 74:28:28:01; 57 FR 23062, 6/1/92 (Checklist 117B)/
74:28:22:01; 57 FR 55114, 11/24/92 (Checklist 119)/74:28:22:01, as well
as 58 FR 46040, 8/31/93 (Checklist 126 update)/74:28:30:01 and 62 FR
25998, 5/12/97 (Checklist 157 update)/74:28:22:01 and 74:28:30:01.
4. One entry was inadvertently omitted from the list of State
provisions being authorized by EPA. The entry should be added to the
end of the list as follows:
Exceptions to Blending and Burning of Hazardous Waste (RCRA Section
3004(q)(2)(A), (r)(2) and (r)(3), as codified in 40 CFR
261.4(a)(12)(i)&(ii)) (Non-Checklist Item BB)/74:28:22:01.
III. Incorporation By Reference
A. What Is Codification?
Codification is the process of including the statutes and
regulations that comprise the State's authorized hazardous waste
management program into the CFR. Section 3006(b) of RCRA, as amended,
allows the Environmental Protection Agency (EPA) to authorize State
hazardous waste management programs. The State regulations authorized
by EPA supplant the federal regulations concerning the same matter with
the result that after authorization EPA enforces the authorized
regulations. Infrequently, State statutory language which acts to
regulate a matter is also authorized by EPA with the consequence that
EPA enforces the authorized statutory provision. EPA does not authorize
State enforcement authorities and does not authorize State procedural
requirements. EPA codifies the authorized State program in 40 CFR part
272 and incorporates by reference State statutes and regulations that
make up the approved program which is Federally enforceable in
accordance with Sections 3007, 3008, 3013, and 7003 of RCRA, 42 U.S.C.
6927, 6928, 6934 and 6973, and any other applicable statutory and
regulatory provisions.
B. What Decisions Have We Proposed in This Action?
Today's action proposes to codify EPA's authorization of South
Dakota's base hazardous waste management program and its revisions to
that program. The proposed codification reflects the State program that
would be in effect at the time EPA's authorized revisions to the South
Dakota hazardous waste management program addressed in this proposed
rule become final. This proposed action does not reopen any decision
EPA previously made concerning the authorization of the State's
hazardous waste management program. EPA is not requesting comments on
its decisions published in the Federal Register notices referenced in
section I.E of this document concerning revisions to the authorized
program in South Dakota.
EPA is proposing to incorporate by reference EPA's approval of
South Dakota's hazardous waste management program by amending Subpart
QQ to 40 CFR part 272. The proposed action amends Sec. 272.2101 and
incorporates by reference South Dakota's authorized hazardous waste
regulations, as amended through August 29, 2004. Section 272.2101 also
references the demonstration of adequate enforcement authority,
including procedural and enforcement provisions, which provide the
legal basis for the State's implementation of the hazardous waste
management program. In addition, Sec. 272.2101 references the
Memorandum of Agreement, the Attorney General's Statements and the
Program Description, which are evaluated as part of the approval
process of the hazardous waste management program in accordance with
Subtitle C of RCRA.
C. What Is the Effect of South Dakota's Codification on Enforcement?
EPA retains the authority under statutory provisions, including but
not limited to, RCRA sections 3007, 3008, 3013 and 7003, and other
applicable statutory and regulatory provisions to undertake inspections
and enforcement actions and to issue orders in all authorized States.
With respect to enforcement actions, EPA will rely on Federal
sanctions, Federal inspection authorities, and Federal procedures
rather than the State analogs to these provisions. Therefore, the EPA
is not proposing to incorporate by reference South Dakota's inspection
and enforcement authorities nor are those authorities part of South
Dakota's approved State program which operates in lieu of the Federal
program. 40 CFR 272.2101(c)(2) lists these authorities for
informational purposes, and also because EPA considered them in
determining the adequacy of South Dakota's procedural and enforcement
authorities. South Dakota's authority to inspect and enforce the
State's hazardous waste management program requirements continues to
operate independently under State law.
D. What State Provisions Are Not Proposed as Part of the Codification?
The public is reminded that some provisions of South Dakota's
hazardous waste management program are not part of the federally
authorized State program. These non-authorized provisions include:
(1) Provisions that are not part of the RCRA subtitle C program
because they are ``broader in scope'' than RCRA subtitle C (see 40 CFR
271.1(i));
(2) Federal rules for which South Dakota is not authorized, but
which have been incorporated into the State regulations because of the
way the State adopted Federal regulations by reference.
(3) State procedural and enforcement authorities which are
necessary to establish the ability of the State's program to enforce
compliance but which do not supplant the Federal statutory enforcement
and procedural authorities.
State provisions that are ``broader in scope'' than the Federal
program are not incorporated by reference in 40 CFR part 272. For
reference and clarity, EPA proposes to list in 40 CFR 272.2101(c)(3)
the South Dakota statutory provisions which are ``broader in scope''
than the Federal program and which are not part of the authorized
program being incorporated by reference. While ``broader in scope''
provisions are not part of the authorized program and cannot be
enforced by EPA; the State may enforce such provisions under State law.
South Dakota has adopted but is not authorized for certain Federal
final rules published between May 11, 1995 and March 17, 2000.
Therefore, the Federal
[[Page 56423]]
amendments to 40 CFR parts 261, 262, 263, 264, 265, 266, 268, 270 and
273 addressed by these Federal rules and included in South Dakota's
adoption by reference at ARSD, section 74:28:22:01, 74:28:23:01,
74:28:24:01, 74:28:25:01, 74:28:28:01, 74:28:27:01, 74:28:30:01,
74:28:26:01 and 74:28:33:01, respectively, are not part of the State's
authorized program included in this proposed codification. EPA is
proposing to identify in 40 CFR 272.2101(c)(4) those Federal
regulations which, while adopted by South Dakota, are not authorized by
EPA.
E. What Will Be the Effect of the Proposed Codification on Federal HSWA
Requirements?
With respect to any requirement(s) pursuant to HSWA for which the
State has not yet been authorized, and which EPA has identified as
taking effect immediately in States with authorized hazardous waste
management programs, EPA will enforce those Federal HSWA standards
until the State is authorized for those provisions.
The proposed codification does not affect Federal HSWA requirements
for which the State is not authorized. EPA has authority to implement
HSWA requirements in all States, including States with authorized
hazardous waste management programs, until the States become authorized
for such requirements or prohibitions, unless EPA has identified the
HSWA requirement(s) as an optional or as a less stringent requirement
of the Federal program. A HSWA requirement or prohibition, unless
identified by EPA as optional or as less stringent, supersedes any less
stringent or inconsistent State provision which may have been
previously authorized by EPA (50 FR 28702, July 15, 1985).
Some existing State requirements may be similar to the HSWA
requirements implemented by EPA. However, until EPA authorizes those
State requirements, EPA enforces the HSWA requirements and not the
State analogs.
IV. Administrative Requirements
The Office of Management and Budget has exempted this action from
the requirements of Executive Order 12866 (58 FR 51735, October 4,
1993), and therefore this action is not subject to review by OMB. This
action proposes to authorize and codify State requirements for the
purpose of RCRA 3006 and imposes no additional requirements beyond
those imposed by State law. Accordingly, I certify that this action
will not have a significant economic impact on a substantial number of
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.). Because this action proposes to authorize and codify pre-
existing requirements under State law and does not impose any
additional enforceable duty beyond that required by State law, it does
not contain any unfunded mandate or significantly or uniquely affect
small governments, as described in the Unfunded Mandates Reform Act of
1995 (Pub. L. 104-4). For the same reason, this proposed action also
does not significantly or uniquely affect the communities of Tribal
governments, as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000). This action will not have substantial direct effects
on the States, on the relationship between the national government and
the States, or on the distribution of power and responsibilities among
the various levels of government, as specified in Executive Order 13132
(64 FR 43255, August 10, 1999), because it merely proposes to authorize
and codify State requirements as part of the State RCRA hazardous waste
program without altering the relationship or the distribution of power
and responsibilities established by RCRA. This proposed action also is
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997),
because it is not economically significant and it does not make
decisions based on environmental health or safety risks. This proposed
action is not subject to Executive Order 13211, ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355, May 22, 2001), because it is not a significant
regulatory action under Executive Order 12866.
Under RCRA 3006(b), EPA grants a State's application for
authorization as long as the State meets the criteria required by RCRA.
It would thus be inconsistent with applicable law for EPA, when it
reviews a State authorization application, to require the use of any
particular voluntary consensus standard in place of another standard
that otherwise satisfies the requirements of RCRA. Thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996),
in issuing this proposed action, EPA has taken the necessary steps to
eliminate drafting errors and ambiguity, minimize potential litigation,
and provide a clear legal standard for affected conduct. EPA has
complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by
examining the takings implications of the proposed action in accordance
with the ``Attorney General's Supplemental Guidelines for the
Evaluation of Risk and Avoidance of Unanticipated Takings'' issued
under the executive order. This proposed action does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Parts 271 and 272
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Hazardous waste
transportation, Incorporation by reference, Indian lands,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements.
Dated: September 20, 2005.
Robert E. Roberts,
Regional Administrator, Region VIII.
For the reasons set forth in the preamble, 40 CFR parts 271 and 272
are proposed to be amended as follows:
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS
EPA is proposing to grant final authorization under part 271 to the
State of South Dakota for revisions to its hazardous waste program
under the Resource Conservation and Recovery Act.
PART 272--APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS
1. The authority citation for part 272 continues to read as
follows:
Authority: Secs. 2002(a), 3006, and 7004(b) of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).
Subpart QQ--[Amended]
2. Subpart QQ is amended by adding Sec. 272.2101 to read as
follows:
Sec. 272.2101 South Dakota State-administered program: final
authorization.
(a) Pursuant to section 3006(b) of RCRA, 42 U.S.C. 6926(b), South
Dakota has final authorization for the following elements as submitted
to EPA in South Dakota's base program application for final
authorization which was approved by EPA effective on November 2, 1984.
Subsequent program revision applications were approved effective on
June 17, 1991, November 8, 1993, March 11, 1994, September 23, 1996,
June 8,
[[Page 56424]]
2000, May 24, 2004 and [effective date of final rule].
(b) The State of South Dakota has primary responsibility for
enforcing its hazardous waste management program. However, EPA retains
the authority to exercise its inspection and enforcement authorities in
accordance with sections 3007, 3008, 3013, 7003 of RCRA, 42 U.S.C.
6927, 6928, 6934, 6973, and any other applicable statutory and
regulatory provisions, regardless of whether the State has taken its
own actions, as well as in accordance with other statutory and
regulatory provisions.
(c) State Statutes and Regulations. (1) The South Dakota
regulations cited in paragraph (c)(1)(i) of this section are
incorporated by reference as part of the hazardous waste management
program under subtitle C of RCRA, 42 U.S.C. 6921 et seq. This
incorporation by reference is approved by the Director of the Federal
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
of the South Dakota regulations that are incorporated by reference in
this paragraph are available from South Dakota Legislative Research
Council, 3rd Floor, State Capitol, 500 East Capitol Avenue, Pierre, SD
57501 (Phone: 605-773-3251).
(i) The Binder entitled ``EPA Approved South Dakota Regulatory
Requirements Applicable to the Hazardous Waste Management Program'',
dated [Month and Year of effective date of final rule].
(ii) [Reserved]
(2) EPA considered the following statutes and regulations in
evaluating the State program, but they are not incorporated by
reference for enforcement purposes:
(i) South Dakota Codified Laws (SDCL), as amended, effective July
1, 2004, Title 1, State Affairs and Government: Chapter 1-26,
Administrative Procedures and Rules, sections 1-26-1(1), 1-26-1(4), 1-
26-1(8) introductory paragraph, 1-26-1(8)(a), 1-26-2, 1-26-6.6, 1-26-16
through 1-26-19, 1-26-19.1, 1-26-19.2, 1-26-27, 1-26-29, 1-26-30, 1-26-
30.1, 1-26-30.2, 1-26-30.4, 1-26-31, 1-26-31.1, 1-26-31.2, 1-26-31.4,
1-26-35 and 1-26-36; Chapter 1-27, Public Records and Files, sections
1-27-1, first sentence, 1-27-3, 1-27-9(2) and 1-27-28(2); Chapter 1-32,
Executive Reorganization, section 1-32-1(1); Chapter 1-40, Department
of Natural Resources, sections 1-40-4.1, 1-40-24, 1-40-31 and 1-40-34.
(ii) SDCL, as amended, effective July 1, 2004, Title 15, Civil
Procedure: Chapter 15-6, Rules of Procedure in Circuit Courts, section
15-6-24(a)-(c).
(iii) SDCL, as amended, effective July 1, 2004, Title 19, Evidence:
Chapter 19-13, Privileges, sections 19-13-2(1), 19-13-2(5), 19-13-3,
19-13-20 and 19-13-22.
(iv) SDCL, as amended, effective July 1, 2004, Title 21, Judicial
Remedies: Chapter 21-8, Injunction, section 21-8-1.
(v) SDCL, as amended, effective July 1, 2004, Title 22, Crimes:
Chapter 22-6, Authorized Punishments, sections 22-6-1 introductory
paragraph and 22-6-1(6).
(vi) SDCL, as amended, effective July 1, 2004, Title 23, Law
Enforcement: Chapter 23-5, Criminal Identification, sections 23-5-1,
23-5-10(1), 23-5-10(3), 23-5-10(4) and 23-5-11 first sentence; Chapter
23-6, Criminal Statistics, section 23-6-4.
(vii) SDCL, as amended, effective July 1, 2004, Title 34, Public
Health and Safety: Chapter 34-21, Radiation and Uranium Resources
Exposure Control, section 34-21-2(7).
(viii) SDCL, as amended, effective July 1, 2004, Title 34A,
Environmental Protection: Chapter 34A-6, Solid Waste Disposal, section
34A-6-1.3(17); Chapter 34A-10, Remedies for Protection of Environment,
sections 34A-10-1, 34A-10-2, 34A-10-5, 34A-10-11, 34A-10-14 and 34A-10-
16, Chapter 34A-11, Hazardous Waste Management, sections 34A-11-1
through 34A-11-4, 34A-11-5, 34A-11-8 through 34A-11-12, 34A-11-13
through 34A-11-16, 34A-11-17 through 34A-11-19, 34A-11-21 and 34A-11-
22.
(ix) SDCL, as amended, effective July 1, 2004, Title 37, Trade
Regulation, Chapter 37-29, Uniform Trade Secrets Act, section 37-29-
1(4).
(x) Administrative Rules of South Dakota (ARSD), Article 74:08,
Administrative Fees, effective August 29, 2004: Chapter 74:08:01, Fees
for Records Reproduction, sections 74:08:01:01 through 74:08:01:07.
(3) The following statutory provisions are broader in scope than
the Federal program, are not part of the authorized program, are not
incorporated by reference and are not federally enforceable:
(i) SDCL, as amended, effective July 1, 2004, Title 34A,
Environmental Protection, Chapter 34A-11, Hazardous Waste Management,
sections 34A-11-12.1, 34A-11-16.1, 34A-11-25 and 34A-11-26.
(ii) [Reserved]
(4) Unauthorized State Amendments. (i) South Dakota has adopted but
is not authorized for the following Federal final rules:
(A) Removal of Legally Obsolete Rules (HSWA/non-HSWA) (60 FR 33912,
06/29/95);
(B) Imports and Exports of Hazardous Waste: Implementation of OECD
Council Division (HSWA--Not delegable to States) (61 FR 16290, 04/12/
96);
(C) Clarification of Standards for Hazard Waste Land Disposal
Restriction Treatment Variances (HSWA)(62 FR 64504, 12/05/97); and
(D) Vacatur of Organobromide Production Waste Listings (HSWA)(65 FR
14472, 03/17/00).
(ii) Those Federal rules written under RCRA provisions that predate
HSWA (non-HSWA) which the State has adopted, but for which it is not
authorized, are not Federally enforceable. In contrast, EPA will
continue to enforce the Federal HSWA standards for which South Dakota
is not authorized until the State receives specific authorization from
EPA.
(5) Memorandum of Agreement. The Memorandum of Agreement between
EPA Region 8 and the State of South Dakota, signed by the State of
South Dakota Department of Natural Resources on June 6, 1996, and by
the EPA Regional Administrator on June 25, 1996, although not
incorporated by reference, is referenced as part of the authorized
hazardous waste management program under subtitle C of RCRA, 42 U.S.C.
6921 et seq.
(6) Statement of Legal Authority. ``Attorney General's Statement
for Final Authorization'', signed by the Attorney General of South
Dakota on May 24, 1984, and revisions, supplements and addenda to that
Statement dated January 14, 1991, September 11, 1992, September 25,
1992, April 1, 1993, September 24, 1993, August 23, 1994, December 29,
1994, September 5, 1995, October 23, 1997, October 27, 1997, October
28, 1997, November 5, 1999, June 26, 2000, June 18, 2002 and October
19, 2004, although not incorporated by reference, are referenced as
part of the authorized hazardous waste management program under
subtitle C of RCRA, 42 U.S.C. 6921 et seq.
(7) Program Description. The Program Description and any other
materials submitted as supplements thereto, although not incorporated
by reference, are referenced as part of the authorized hazardous waste
management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.
3. Appendix A to part 272 , State Requirements, is amended by
adding in alphabetical order, ``South Dakota'' and its listing to read
as follows:
[[Page 56425]]
Appendix A to Part 272--State Requirements
* * * * *
South Dakota
The regulatory provisions include:
Administrative Rules of South Dakota, Article 74:28, Hazardous
Waste, effective August 29, 2004, sections 74:28:21:01, 74:28:21:02,
74:28:21:03, 74:28:22:01, 74:28:23:01, 74:28:24:01, 74:28:25:01
through 74:28:25:05, 74:28:26:01, 74:28:27:01, 74:28:28:01 through
74:28:28:05, 74:28:29:01, 74:28:30:01 and 74:28:33:01; Article
74:36, Air Pollution Control Program, as of August 29, 2004, section
74:36:11:01.
Copies of the South Dakota regulations that are incorporated by
reference are available from South Dakota Legislative Research
Council, 3rd Floor, State Capitol, 500 East Capitol Avenue, Pierre,
SD 57501 (Phone: 605-773-3251).
* * * * *
[FR Doc. 05-19255 Filed 9-26-05; 8:45 am]
BILLING CODE 6560-50-P