[Federal Register Volume 68, Number 212 (Monday, November 3, 2003)]
[Proposed Rules]
[Pages 62264-62267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27553]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-7581-8]


South Dakota: Final Authorization of State Hazardous Waste 
Management Program Revision

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.

DATES: Written comments must be received by December 3, 2003.

ADDRESSES: 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 VIII, 
from 7 AM to 4 PM, 999 18th Street, Suite 300, Denver, Colorado 80202-
2466, contact: Kris Shurr, phone number: (303) 312-6139, e-mail: 
[email protected] or SDDENR, from 9 AM to 5 PM, Joe Foss Building, 523 
E. Capitol, Pierre, South Dakota 57501-3181, contact: Carrie Jacobson, 
phone number (605) 773-3153. Send written comments to Kris Shurr, 8P-
HW, U.S. EPA, Region VIII, 999 18th Street, Suite 300, Denver, Colorado 
80202-2466, phone number: (303) 312-6139 or electronically to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Kris Shurr, 8P-HW, U.S. EPA, Region 
VIII, 999 18th Street, Suite 300, Denver, Colorado 80202-2466, phone 
number: (303) 312-6139 or [email protected]. Written comments must be 
received by December 3, 2003.

SUPPLEMENTARY INFORMATION: 

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

[[Page 62265]]

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 Proposed Rule?

    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 a facility 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 responsibilities 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, authority to:
    [sbull] Conduct inspections; require monitoring, tests, analyses, 
or reports;
    [sbull] Enforce RCRA requirements; suspend or revoke permits; and,
    [sbull] Take enforcement actions regardless of whether South Dakota 
has taken its own actions.
    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); and May 9, 2000, 
effective June 8, 2000 (65 FR 26755).

F. What Changes Are We Proposing To Authorize With Today's Action?

    South Dakota submitted a final complete program revision 
applications on August 16, 2002 and February 14, 2003, seeking 
authorization of their changes in accordance with 40 CFR 271.21. We now 
make an 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 (the Federal Citation 
followed by the analog from the Administrative Rules of South Dakota 
(ARSD 74:28), revised August 28, 2002): Carbamate Production 
Identification and Listing of Hazardous Waste [60 FR 07824, 2/9/95; 60 
FR 19165, 4/17/95; and 60 FR 25619, 5/12/95] (Checklist 140)/
74:28:22:01; Conditionally Exempt Small Quantity Generator Disposal 
Options under Subtitle D [61 FR 34252, 7/1/96] (Checklist 153)/
74:28:22:01; Land Disposal Restrictions Phase III--Emergency Extention 
of the K088 Capacity Variance [62 FR 01992, 1/14/97] (Checklist 155)/
74:28:30:01; Military Munitions Rule [62 FR 06622, 2/12/97] (Checklist 
156)/78:28:21:02, 78:28:22:01, 78:28:23:01, 78:28:24:01, 78:28:25:01, 
78:28:26:01, 78:28:27:01, and 78:28:28:01; Land Disposal Restrictions 
Phase IV--Treatment Standards for Wood Preserving Wastes, Paperwork 
Reduction and Streamlining, Exemptions from RCRA for Certain Processed 
Materials, and Miscellaneous Hazardous Waste Provisions [62 FR 25998, 
5/12/97] (Checklist 157)/78:28:22:01 and 78:28:30:01; Testing & 
Monitoring Activities Amendment III [62 FR 32452, 6/13/97] (Checklist 
158)/78:28:21:02, 78:28:25:01, 78:28:27:01, and 78:28:28:01; 
Conformance with the Carbamate Vacatur [62 FR 32974, 6/17/97] 
(Checklist 159)/78:28:22:01 and 78:28:30:01; Land Disposal Restrictions 
Phase III--Emergency Extension of the K088 National Capacity Variance, 
Amendment [62 FR 37694, 7/14/97] (Checklist 160)/78:28:30:01; Emergency 
Revision of the Carbamate Land Disposal Restrictions [62 FR 45568, 8/
28/97] (Checklist 161)/78:28:30:01; Kraft Mill Steam Stripper 
Condensate Exclusion [63 FR 18504, 4/15/98] (Checklist 164)/
78:28:22:01; Recycled Used Oil Management Standards--Technical 
Correction & Clarification [63 FR 24963, 5/6/98 and 63 FR 37780, 7/14/
98] (Checklist 166)/78:28:22:01 and 78:28:27:01; Land Disposal 
Restrictions Phase IV--Treatment Standards for Metal Wastes & Mineral 
Processing Wastes [63 FR 28556, 5/26/98] (Checklist 167A)/78:28:30:01; 
Land Disposal Restrictions Phase IV--Hazardous Soils Treatment 
Standards & Exclusions [63 FR 28556, 5/26/98] (Checklist 167B)/
78:28:30:01; Land Disposal Restrictions Phase IV--Corrections [63 FR 
28556, 5/26/98 and 63 FR 31266, 6/8/98] (Checklist 167C)/78:28:30:01; 
Bevill Exclusion Revisions & Clarifications [63 FR 28556, 5/26/98] 
(Checklist 167E)/78:28:22:01; Exclusion of Recycled Wood Preserving 
Wastewaters [63 FR 28556, 5/26/98] (Checklist 167F)/78:28:22:01; 
Hazardous Waste Combusters--Revised Standards [63 FR 6/19/98] 
(Checklist 168)/78:28:22:01 and 78:28:26:01; Petroleum Refining Process 
Wastes [63 FR 42110, 8/6/98] (Checklist 169)/78:28:22:01, 78:28:27:01, 
78:28:30:01; Land Disposal Restrictions Phase IV--Zinc Micronutrient 
Fertilizeers, Amendment [63 FR 46332, 8/31/98] (Checklist 170)/
78:28:30:01; Emergency Revision of the Land Disposal Restrictions (LDR) 
Treatment Standards for Listed Hazardous Wastes from Carbamate 
Production [63 FR 47410, 09/04/98] (Checklist 171)/78:28:30:01; Land 
Disposal Restrictions Phase IV--Extension of Compliance Date for 
Characteristic Slags [63 FR 48124, 9/9/98] (Checklist 172)/78:28:30:01; 
Land Disposal Restrictions--Treatment Standards for Spent Potliners 
from Primary Aluminum Reduction (K088)--Final Rule [63 FR 51254, 9/24/
98] (Checklist 173)/78:28:30:01; Post-Closure Permit Requirement & 
Closure

[[Page 62266]]

Process [63FR 56710, 10/22/98] (Checklist 174)/78:28:25:01, 
78:28:26:01, and 78:28:28:01; Universal Waste Rule--Technical 
Amendments [63 FR 71225, 12/24/98] (Checklist 176)/78:28:27:01 and 
78:28:33:01; Organic Air Emission Standards--Clarification & Technical 
Amendments [64 FR 03382, 1/21/99] (Checklist 177/78:28:23:01, 
78:28:25:01, and 78:28:28:01; Petroleum Refining Process Wastes--
Leachate Exemption [64 FR 06806, 2/11/99] (Checklist 178)/78:28:22:01; 
Land Disposal Restrictions Phase IV--Technical Corrections and 
Clarifications to Treatment Standards [64 FR 25408, 05/11/99] 
(Checklist 179)/78:28:22:01, 78:28:23:01, and 78:28:30:01; Universal 
Waste Rule: Specific Provisions for Hazardous Waste Lamps [64 FR 36466, 
07/06/99] (Checklist 181)/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; Hazardous Air 
Pollutant Standards for Combustors [64 FR 52828, 09/30/99 and 64 FR 
63209, 11/19/99] (Checklist 182)/74:28:21:01, 74:28:21:02, 74:28:22:01, 
74:28:25:01, 74:28:26:01, 74:28:27:01, and 74:28:28:01; Land Disposal 
Restrictions Phase IV--Technical Corrections [64 FR 56469, 10/20/99] 
(Checklist 183)/74:28:22:01, 74:28:23:01, and 74:28:30:01; Accumulation 
Time for Waste Water Treatment Sludges [65 FR 12378, 03/08/2000] 
(Checklist 184)/74:28:23:01; 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); 55 FR 40834, 10/5/90, 56 FR 03978, 
2/1/91, and 56 FR 13406, 4/2/91 (Checklist 80); 56 FR 05910, 2/13/91 
(Checklist 84); 57 FR 30657, 7/10/92 (Checklist 108); 57 FR 23062, 6/1/
92 (Checklist 117B); 57 FR 55114, 11/24/92 (Checklist 119), as well as, 
58 FR 46040, 8/31/93 (Checklist 126 update) and 62 FR 25998, 5/12/97 
(Checklist 157 update).

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.
    Today's Federal Register notice also eliminates errors in portions 
of the federally authorized South Dakota hazardous waste program. In 
the process of evaluating South Dakota's application for revisions to 
its hazardous waste program, we have discovered certain errors in the 
program as adopted in the State's regulations. These errors arose in 
part because the State incorporates Federal regulations ``by 
reference'' as they appear in the ``Code of Federal Regulations'' 
(CFR), June 2000 edition, published by the National Archives and 
Records Administration. The specific regulations EPA relies upon to 
provide official notice to the public and regulated community of any 
Federal hazardous waste program are those found in the Federal 
Registers that are published each business day, rather than the annual 
CFR. Errors appearing in regulations used by the State's hazardous 
waste program may or may not be significant. However, in order to avoid 
any confusion and to ensure that EPA oversees and enforces the 
appropriate hazardous waste regulations, we are publishing the 
following list of corrections for errors found in the revisions of the 
State's hazardous waste program that are approved in today's Federal 
Register. Additional corrections may appear in Federal Registers 
approving later revisions to the South Dakota hazardous waste program.
    [sbull] In Sec.  266.100, replace ``(b), (c), (d) and (f)'' with 
``(b)-(e), (g) and (h).''
    [sbull] In Sec.  266.100(d)(3), add the following missing text to 
the end of the paragraph: ``or a metal recovery furnace that burns 
baghouse bags used to capture metallic dusts emitted by steel 
manufacturing, must provide a one-time written notice to the Director 
identifying each hazardous waste burned and specifying whether the 
owner or operator claims an exemption for each waste under this 
paragraph or paragraph (d)(1) of this section. The owners or operator 
must comply with the requirements of paragraph (d)(1) of this section 
for those wastes claimed to be exempt under that paragraph and must 
comply with the requirements below for those wastes claimed to be 
exempt under this paragraph (d)(3).''
    [sbull] In 40 CFR part 266, appendix VIII, in the ``semivolatiles'' 
column, replace ``Plychlorinated dibenzo-furans'' with ``Polychlorinate 
dibenzo-furans.''
    [sbull] In the 40 CFR 268.40 table: (1) under waste code K088, 
``Indeno(1,2,3,-c,d) pyrene'' should be ``Indeno(1,2,3-cd) pyrene'', 
(2) under waste code K088, ``Bemz(a)anthracene'' should be 
``benzo(a)anthracene;
    [sbull] At 264.1030(c), replace ``40 CFR 124.15'' (applies to EPA 
only) with ``40 CFR 124.5'' (applies to the State).

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.

J. What Is Codification and Is EPA Codifying South Dakota's Hazardous 
Waste Program as Authorized in This Rule?

    Codification is the process of placing a State's statutes and 
regulations that comprise the State's authorized hazardous waste 
program into the CFR. We do this by referencing the authorized State 
rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, 
subpart QQ for the codification of South Dakota's updated program until 
a later date.

K. 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 authorizes State requirements for the purpose of RCRA section 
3006 and imposes no additional requirements beyond those imposed by 
State law. Accordingly, I

[[Page 62267]]

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 authorizes 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 
(Public Law 104-4). For the same reason, this 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 authorizes 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 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 rule 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 section 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 rule, 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 rule 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 rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this document and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication in the Federal Register. A major rule cannot take effect 
until 60 days after it is published in the Federal Register. This 
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This 
action will be effective January 2, 2004.

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous materials transportation, 
Hazardous waste, Incorporation-by-reference, Indians-lands, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements.

    Authority: This action 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: October 21, 2003.
Kerrigan G. Clough,
Acting Regional Administrator, Region VIII.
[FR Doc. 03-27553 Filed 10-31-03; 8:45 am]
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