[Federal Register Volume 70, Number 186 (Tuesday, September 27, 2005)]
[Proposed Rules]
[Pages 56419-56425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19255]


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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: 
[email protected]. 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: [email protected].

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