[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38392-38395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18659]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271

[FRL-5534-2]


South Dakota: Final/Interim Authorization of State Hazardous 
Waste Management Program Revisions

AGENCY: Environmental Protection Agency.

ACTION: Final rule on application of South Dakota for program revision.

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SUMMARY: South Dakota has applied for final authorization of revisions 
to its hazardous waste program under the Resource Conservation and 
Recovery Act (RCRA). The Environmental Protection Agency (EPA) has 
reviewed South Dakota's application and has reached a decision that 
South Dakota's hazardous waste program revision satisfies all of the 
requirements necessary to qualify for final authorization. Thus, EPA is 
granting final authorization to South Dakota to operate its expanded 
program, subject to the authority retained by EPA in accordance with 
the Hazardous and Solid Waste Amendments of 1984.

EFFECTIVE DATE: Final authorization for South Dakota shall be effective 
at 1:00 p.m. on September 23, 1996.

FOR FURTHER INFORMATION CONTACT: Ms. Kris Shurr (8P2-SA), State 
Assistance Program, 999 18th Street, Ste 500, Denver, Colorado 80202-
2466, Phone: 303/312-6139.

SUPPLEMENTARY INFORMATION:

A. Background

    States with final authorization under Section 3006(b) of the 
Resource Conservation and Recovery Act (``RCRA''), 42 U.S.C. 6929(b), 
have a continuing obligation to maintain a hazardous waste program that 
is equivalent to, consistent with, and no less stringent than the 
Federal hazardous waste program. In addition, as an interim measure, 
the Hazardous and Solid Waste Amendments of 1984 (Pub. L. 98-616, 
November 8, 1984, hereinafter ``HSWA'') allows States to revise their 
programs to become substantially equivalent instead of equivalent to 
RCRA requirements promulgated under HSWA authority. States exercising 
the latter option receive ``interim authorization'' for the HSWA 
requirements under Section 3006(g) of RCRA, 42 U.S.C. 6926(g), and 
later apply for final authorization for the HSWA requirements.
    Revisions to State hazardous waste programs are necessary when 
Federal or State statutory or regulatory authority is modified or when 
certain other changes

[[Page 38393]]

occur. Most commonly, State program revisions are necessitated by 
changes to EPA's regulations in 40 CFR Parts 260-266 and 124 and 270.

B. South Dakota

    South Dakota initially received final authorization on November 2, 
1984. South Dakota received authorization for revisions to its program 
on June 17, 1991, November 8, 1993, and March 11, 1994. On October 2, 
1995, South Dakota submitted a final program revision application for 
additional program approval.
    EPA has reviewed South Dakota's application and has made a final 
decision that South Dakota's hazardous waste program revisions, which 
adopt Federal rules by reference, satisfy all of the requirements 
necessary to qualify for final authorization. Consequently, EPA is 
granting final authorization for the additional program modifications 
listed in Table 1 to South Dakota.
    Today, South Dakota is seeking approval of its program revision in 
accordance with 40 CFR 271.21(b)(3). Specific provisions which are 
included in the South Dakota program authorization revision sought 
today are listed in Table 1 below.

                                 Table 1                                
------------------------------------------------------------------------
           HSWA or FR  reference                State equivalent \1\    
------------------------------------------------------------------------
Land Disposal Restrictions (Solvents and    74:28:01:02, 74:28:22:01,   
 Dioxins), 51 FR 40572, 11/07/86; 52 FR      74:28:23:01, 74:28:24:01,  
 25760, 07/08/87; and 53 FR 31138, 08/17/    74:28:25:01, 74:28:26:01,  
 88.                                         74:28:28:01, and           
                                             74:28:30:01.               
California List Waste Restrictions, 51 FR   74:28:21:02, 74:28:23:01,   
 40572, 11/07/86; 52 FR 25760, 07/08/87;     74:28:25:01, 74:28:26:01,  
 and 53 FR 31138, 08/17/88.                  74:28:28:01, and           
                                             74:28:30:01.               
Land Disposal Restrictions for First Third  74:28:25:01, 74:28:27:01,   
 Scheduled Wastes, 51 FR 40572, 11/07/86;    74:28:28:01, and           
 52 FR 25760, 07/08/87; and 53 FR 31138,     74:28:30:01.               
 08/17/88.                                                              
Changes to Interim Status Facilities for    74:28:26:01, and Memorandum 
 Hazardous Waste Management Permits;         of Agreement.              
 Modifications of Hazardous Waste                                       
 Management Permits; Procedures for Post-                               
 Closure Permitting, 54 FR 9596, 03/07/89.                              
Land Disposal Restrictions Amendments to    74:28:30:01.                
 First Third Scheduled Wastes, 54  FR                                   
 18836, 05/02/89.                                                       
Delay of Closure Period for Hazardous       74:28:25:01, 74:28:26:01,   
 Waste Management Facilities, 54 FR 33376,   and 74:28:28:01.           
 08/14/89.                                                              
Land Disposal Restrictions for Second       74:28:30:01.                
 Third Scheduled Wastes, 54 FR 26594, 6/23/                             
 89.                                                                    
Land Disposal Restrictions; Correction to   74:28:27:01, and            
 the First Third Scheduled Wastes, 54 FR     74:28:30:01.               
 36967, 09/06/89.                                                       
Land Disposal Restrictions for Third Third  74:28:22:01, 74:28:23:01,   
 Scheduled Wastes, 55 FR 22520, 6/01/90.     74:28:25:01, 74:28:26:01,  
                                             74:28:28:01, and           
                                             74:28:30:01.               
Petroleum Refinery Primary and Secondary    74:28:22:01.                
 Oil/Water/Solids Separation Sludge                                     
 Listings (F037 & F038), 55 FR 46354, 11/                               
 02/90 and 55 FR 51707, 12/17/90.                                       
Land Disposal Restrictions for Third Third  74:28:22:01, 74:28:23:01,   
 Scheduled Wastes; Technical Amendment, 56   74:28:26:01, and           
 FR 3864, 01/31/91.                          74:28:30:01.               
Burning of Hazardous Waste in Boilers and   74:28:21:01, 74:28:22:01,   
 Industrial Furnaces, 56 FR 7134, 02/21/91.  74:28:25:01, 74:28:26:01,  
                                             74:28:27:01, and           
                                             74:28:28:01.               
Removal of Strontium Sulfide from the List  74:28:22:01.                
 of Hazardous Waste; Technical Amendment,                               
 56 FR 7567, 02/25/91.                                                  
Organic Air Emission Standards for Process  74:28:25:01, 74:28:26:01,   
 Vents & Equipment Leaks; Technical          and 74:28:28:01.           
 Amendment, 56  FR  19290, 04/26/91.                                    
Administrative Stay for K069 Listing, 56    74:28:22:01.                
 FR 19951, 05/01/91.                                                    
Revision to the Petroleum Refinery Primary  74:28:22:01.                
 and Secondary Oil/Water/Solids Separation                              
 Sludge Listings (F037 and F038), 56 FR                                 
 21955, 05/13/91.                                                       
Mining Waste Exclusion III, 56 FR 27300,    74:28:22:01.                
 06/13/91.                                                              
Wood Preserving Listings, 56 FR 27332, 06/  74:28:22:01, 74:28:25:01,   
 13/91.                                      and 74:28:28:01.           
Surface Impoundment Requirements--3005(j).  74:28:29:01.                
------------------------------------------------------------------------
\1\ References are to the South Dakota Department of Environment and    
  Natural Resources Title 74, Article 74:28 Hazardous Waste.            

    During EPA review of South Dakota's program revision application, 
EPA had two (2) concerns, which South Dakota has subsequently addressed 
to EPA's satisfaction.
    The first issue dealt with public access to information. In 
previous program revision applications and in its Memorandum of 
Agreement (MOA) with EPA, the state has agreed to make records 
available to the fullest extent possible, subject to state law and 
federal Freedom of Information Act exemptions. However, South Dakota 
Codified Law 1-26-2 states: ``An agency shall hold confidential 
materials derogatory to a person but such information shall be 
available to the person to whom it relates.'' EPA's concern was that 
there is no standard set forth in the statute explaining derogatory or 
who is to make such a determination. South Dakota has made a change in 
its MOA which states that South Dakota will notify EPA if SDCL 1-26-2 
is used to deny access to information. Further, the Attorney General's 
office has agreed to address this issue in its next program revision 
application.
    The second issue was contained in South Dakota's recently passed 
self-audit immunity law. One of the statements contained in the law 
states: ``If a state program is required in writing by a federal agency 
to assess penalties for a violation in order to maintain primacy over a 
federally-delegated program, or if violations caused damage to human 
health or the environment, the * * * Act does not apply.'' South Dakota 
confirmed on June 6, 1996, that the state considers Enforcement 
Agreements with EPA as meeting the

[[Page 38394]]

definition of ``in writing by a federal agency''. The Attorney 
General's Office has agreed to also address this issue in the next 
program revision application submitted by South Dakota.

Indian Reservations

    The program revision does not extend to ``Indian Country'' as 
defined in 18 U.S.C. Section 1151, including lands within the exterior 
boundaries of the following Indian reservations located within or 
abutting the State of South Dakota:
    1. Cheyenne River Indian Reservation.
    2. Crow Creek Indian Reservation.
    3. Flandreau Indian Reservation.
    4. Lake Traverse Indian Reservation.
    5. Lower Brule Indian Reservation.
    6. Pine Ridge Indian Reservation.
    7. Rosebud Indian Reservation.
    8. Standing Rock Indian Reservation.
    9. Yankton Indian Reservation.
    In excluding Indian Country from the scope of this program 
revision, EPA is not making a determination that the State either has 
adequate jurisdiction or lacks jurisdiction over sources in Indian 
Country. Should the State of South Dakota choose to seek program 
authorization within Indian Country, it may do so without prejudice. 
Before EPA would approve the State's program for any portion of Indian 
Country, EPA would have to be satisfied that the State has 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 and that such approval would constitute sound 
administrative practice.
    There are no EPA-issued RCRA permits in Indian Country at this 
time.

C. Decision

    I conclude that South Dakota's application for program revision 
meets all of the statutory and regulatory requirements established by 
RCRA. Accordingly, South Dakota is granted final authorization to 
operate its hazardous waste program as revised. South Dakota now has 
responsibility for permitting treatment, storage, and disposal 
facilities within its borders and carrying out other aspects of the 
RCRA program described in its revised program application, subject to 
the limitations of the HSWA. South Dakota also has primary enforcement 
responsibilities, although EPA retains the right to conduct inspections 
under Section 3007 of RCRA and to take enforcement actions under 
Sections 3008, 3013 and 7003 of RCRA.
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

    EPA has determined that this authorization will not have a 
significant economic impact on a substantial number of small entities. 
EPA recognizes that small entities may own and/or operate TSDFs that 
will become subject to the requirements of an approved state hazardous 
waste program. However, since such small entities which own and/or 
operate TSDFs are already subject to the requirements in 40 CFR Parts 
264, 265 and 270, this authorization does not impose any additional 
burdens on these small entities. This is because EPA's authorization 
would result in an administrative change (i.e., whether EPA or the 
state administers the RCRA Subtitle C program in that state), rather 
than result in a change in the substantive requirements imposed on 
small entities. Once EPA authorizes a state to administer its own 
hazardous waste program and any revisions to that program, these same 
small entities will be able to own and operate their TSDFs under the 
approved state program, in lieu of the federal program. Moreover, this 
authorization, in approving a state program to operate in lieu of the 
federal program, eliminates duplicative requirements for owners and 
operators of TSDFs in that particular state.
    Therefore, EPA provides the following certification under the 
Regulatory Flexibility Act, as amended by the Small Business Regulatory 
Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C. 605(b), 
I hereby certify that this authorization will not have a significant 
economic impact on a substantial number of small entities. This 
authorization effectively approves the South Dakota program to operate 
in lieu of the federal program, thereby eliminating duplicative 
requirements for handlers of hazardous waste in the state. It does not 
impose any new burdens on small entities. This rule, therefore, does 
not require a regulatory flexibility analysis.

Submission to Congress and the General Accounting Office

    Under section 801(a)(1)(A) of the Administrative Procedures Act 
(APA) as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996, EPA submitted a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives and the Comptroller General of the General Accounting 
Office prior to publication of the rule in today's Federal Register. 
This rule is not a ``major rule'' as defined by section 804(2) of the 
APA as amended.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UNRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's rule contains no Federal mandates for State, local or 
tribal governments or the private sector. The Act excludes from the 
definition of a ``Federal mandate'' duties that arise from 
participation in a voluntary Federal program, except in certain cases 
where a ``federal intergovernmental mandate'' affects an annual federal 
entitlement program of $500 million or more that are not applicable 
here. South

[[Page 38395]]

Dakota's request for approval of RCRA program revisions to its 
authorized hazardous waste program is voluntary and imposes no Federal 
mandate within the meaning of the Act. Rather, by having its hazardous 
waste program revision approved, the State will gain the authority to 
implement the program within its jurisdiction, in lieu of EPA thereby 
eliminating duplicative State and Federal requirements. If a State 
chooses not to seek authorization for administration of a hazardous 
waste program under RCRA Subtitle C, RCRA regulation is left to EPA.
    In any event, EPA has determined that this rule does not contain a 
Federal mandate that may result in expenditures $100 million or more 
for State, local, and tribal governments in the aggregate, or the 
private sector in any one year. EPA does not anticipate that the 
approval of South Dakota 's hazardous waste program revison referenced 
in today's notice will result in annual costs of $100 million or more. 
EPA's approval of state programs generally may reduce, not increase, 
compliance costs for the private sector since the State, by virtue of 
the approval, may now administer the program in lieu of EPA and 
exercise primary enforcement. Hence, owners and operators of treatment, 
storage, or disposal facilities (TSDFs) generally no longer face dual 
Federal and State compliance requirements, thereby reducing overall 
compliance costs. Thus, today's rule is not subject to the requirements 
of sections 202 and 205 of the UMRA.
    EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. The Agency recognizes that small governments may own and/
or operate TSDFs or that will become subject to the requirements of an 
approved State hazardous waste program revision. However, such small 
governments which own and/or operate TSDFs are already subject to the 
requirements in 40 CFR parts 264, 265, and 270 and are not subject to 
any additional significant or unique requirements by virtue of this 
program approval. Once EPA authorizes a State to administer its own 
hazardous waste program and any revisions to that program, these same 
small governments will be able to own and operate their TSDFs under the 
approved State program, in lieu of the Federal program.

    Authority: This notice is issued under the authority of Sections 
2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended 
42 U.S.C. 6912(a), 6926, 6974(b).

    Dated: June 25, 1996.
Jack W. McGraw,
Acting Regional Administrator
[FR Doc. 96-18659 Filed 7-23-96; 8:45 am]
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