[Federal Register Volume 59, Number 140 (Friday, July 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17555]


[[Page Unknown]]

[Federal Register: July 22, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5016-5]

40 CFR Part 281

 

South Dakota; Final Approval of State Underground Storage Tank 
Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of tentative determination on application of State of 
South Dakota for final approval, public hearing and public comment 
period.

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SUMMARY: The State of South Dakota has applied for final approval of 
its underground storage tank program under Subtitle I of the Resource 
Conservation and Recovery Act (RCRA). The Environmental Protection 
Agency (EPA) has reviewed the South Dakota application and has made the 
tentative decision that South Dakota's underground storage tank program 
satisfies all of the requirements necessary to qualify for final 
approval. EPA intends to grant final approval to the State to operate 
its program in lieu of the Federal program. The State of South Dakota's 
application for final approval is available for public review and 
comment. EPA has tentatively scheduled a public hearing on this 
determination. If a sufficient number of people express interest in 
participating in a hearing by writing to EPA or calling the contact 
within 30 days of the date of publication of this notice, EPA will hold 
a hearing on the date given below in the ``DATES'' section. EPA will 
notify all persons who submit comments on this notice if it decides to 
hold the hearing. In addition, anyone who wishes to learn whether the 
hearing will be held may call the person listed in the ``Contacts'' 
section below.

DATES: All comments on South Dakota's final approval application must 
be received by the close of business on August 22, 1994. The public 
hearing is tentatively scheduled for September 12, 1994.

ADDRESSES: Written comments should be sent to U.S. EPA, Attn: Leslie 
Zawacki, mail code (8HWM-WM), Region 8, 999 18th Street, Suite 500, 
Denver, Colorado 80202.
    The public hearing is tentatively scheduled for 1 p.m. at the 
Matthew Training Center, Joe Foss Building, 523 East Capitol, Pierre, 
South Dakota 57501.
    Copies of South Dakota's final approval application are available 
during normal working days at the following addresses for inspection 
and copying: from 8 a.m.-5 p.m. at the South Dakota Department of 
Environment and Natural Resources, Underground Storage Tank Program, 
523 East Capitol, Pierre, South Dakota 57501, phone: (605) 773-3296; 
from 9 a.m.-4 p.m. at the U.S. EPA Headquarters, Office of Underground 
Storage Tanks, Docket Clerk, 401 M Street, SW., Room 2616, Washington, 
DC 20460, phone: (202) 260-9720; and from 8 a.m.-4 p.m. at the U.S. EPA 
Region 8, Library, Suite 144, 999 18th Street, Denver, Colorado 80202, 
phone: (303) 293-1665.

FOR FURTHER INFORMATION CONTACT: Leslie Zawacki, Underground Storage 
Tank Program Section, U.S. EPA, Region 8, 8HWM-WM, 999 18th Street, 
Denver, Colorado 80202, phone: (303) 293-1665.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 9004 of the Resource Conservation and Recovery Act (RCRA) 
enables EPA to approve state underground storage tank programs to 
operate in the State in lieu of the Federal underground storage tank 
(UST) program. Program approval is granted by EPA if the Agency finds 
that the State program: (1) is ``no less stringent'' than the Federal 
program in all seven elements, and includes notification requirements 
of section 9004(a)(8), 42 U.S.C. 6991c(a)(8); and (2) provides for 
adequate enforcement of compliance with UST standards (Section 9004(a), 
42 U.S.C. 6991c(a)).

B. State of South Dakota

    The State of South Dakota established authority through South 
Dakota Codified Law 34A-2-98 and 34A-2-99 to implement an underground 
storage tank program. The State developed and approved rules in the 
Administrative Rules of South Dakota that became effective November 30, 
1987.
    On July 9, 1992, South Dakota submitted an official application for 
final approval. EPA reviewed and commented on the application and 
requested additional information to be included in the final 
application. Prior to its submission, South Dakota provided an 
opportunity for public notice and comment in the development of its 
underground storage tank program as required under Sec. 281.50(b). EPA 
has reviewed South Dakota's application, and has tentatively determined 
that the State's program meets all of the requirements necessary to 
qualify for final approval. Consequently, EPA intends to grant final 
approval to South Dakota to operate its program in lieu of the Federal 
program.
    This tentative determination to approve the South Dakota UST 
program does not extend to ``Indian Country,'' as defined in 18 U.S.C. 
Section 1151, including the following ``existing or former'' Indian 
reservations in the State of South Dakota:

1. Cheyenne River
2. Crow Creek
3. Flandreau
4. Lake Traverse (Sisseton-Wahpeton)
5. Lower Brule
6. Pine Ridge
7. Rosebud
8. Standing Rock
9. Yankton.

    Before EPA would be able to approve the State of South Dakota UST 
program for any portion of ``Indian Country,'' the State would have to 
provide an appropriate analysis of the State's jurisdiction to enforce 
in these areas. In order for a state to satisfy this requirement, it 
must demonstrate to the EPA's satisfaction that it had authority either 
pursuant to explicit Congressional authorization or applicable 
principles of Federal Indian Law to enforce its laws against existing 
and potential pollution sources within any geographical area for which 
it seeks program approval. EPA has reason to believe that disagreement 
exists with regard to the State's jurisdiction over ``Indian Country,'' 
and EPA is not satisfied that South Dakota has, at this time, made the 
requisite showing of its authority with respect to such lands.
    In withholding program approval for these areas, EPA is not making 
a determination that the State either has adequate jurisdiction or 
lacks such jurisdiction. Should the State of South Dakota choose to 
submit analysis with regard to its jurisdiction over all or part of 
``Indian Country'' in the State, it may do so without prejudice.
    EPA's future evaluation of whether to approve the South Dakota 
program for ``Indian Country,'' to include Indian reservation lands, 
will be governed by EPA's judgment as to whether the State has 
demonstrated adequate authority to justify such approval, based upon 
its understanding of the relevant principles of Federal Indian law and 
sound administrative practice. The State may wish to consider EPA's 
discussion of the related issue of tribal jurisdiction found in the 
preamble to the Indian Water Quality Standards Regulation (see 56 FR 
64876, December 12, 1991).
    On May 2, 1994, the State of South Dakota submitted to EPA an 
amendment to its UST program application. The amendment requests that 
South Dakota UST program approval be expanded to include UST activities 
on non-Indian lands for the former lands of the Yankton Sioux, Lake 
Traverse (Sisseton-Wahpeton) and parts of the Rosebud and Pine Ridge 
reservations. This amendment is presently being reviewed by EPA and 
will be treated as a revision to the South Dakota UST program proposed 
for approval today. A notice of the proposed EPA decision on this 
amendment will be published in the Federal Register for public comment 
at a later date.
    In accordance with Section 9004 of RCRA 42 U.S.C. 6991c and 40 CFR 
281.50(e), the Agency will accept written comments on EPA's tentative 
determination until August 21, 1994. Copies of South Dakota's 
application are available for inspection and copying at the locations 
indicated in the Addresses section of this notice.
    EPA will consider all public comments on its tentative 
determination received during the public comment period. Issues raised 
by those comments may be the basis for a decision to deny final 
approval to South Dakota. EPA expects to make a final decision on 
whether or not to approve South Dakota's program by October 20, 1994 
and will give notice of it in the Federal Register. At this time, EPA 
and the State will enter into a memorandum of agreement to set forth 
the manner in which the State and EPA will coordinate the State's 
administration of the State program. The notice will include a summary 
of the reasons for the final determination and a response to all major 
comments.

Compliance With Executive Order 12866

    The Office of Management and Budget has exempted this rule from the 
requirements of Section 6 of Executive Order 12866.

Certification Under the Regulatory Flexibility Act

    Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify 
that this approval will not have a significant economic impact on a 
substantial number of small entities. The approval effectively suspends 
the applicability of certain Federal regulations in favor of South 
Dakota's program, thereby eliminating duplicative requirements for 
owners and operators of underground storage tanks in the State.
    It does not impose any new burdens on small entities. This rule, 
therefore, does not require a regulatory flexibility analysis.

List of Subjects in 40 CFR Part 281

    Environmental protection, Administrative practice and procedure, 
Hazardous materials, State program approval, and Underground storage 
tanks.

    Authority: This notice is issued under the authority of Section 
9004 of the Solid Waste Disposal Act as amended 42 U.S.C. 6991c.

    Dated: July 5, 1994.
Jack W. McGraw,
Acting Regional Administrator.
[FR Doc. 94-17555 Filed 7-21-94; 8:45 am]
BILLING CODE 6560-50-P