[Federal Register Volume 75, Number 247 (Monday, December 27, 2010)]
[Proposed Rules]
[Pages 81187-81190]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32480]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R08-RCRA-2010-0933, FRL-9244-1]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed Rule.

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SUMMARY: The Solid Waste Disposal Act, as amended, commonly referred to 
as the Resource Conservation and Recovery Act (RCRA), allows the 
Environmental Protection Agency (EPA) to authorize states to operate 
their hazardous waste management programs in lieu of the federal 
program. South Dakota has applied to EPA for final authorization of the 
changes to its hazardous waste program under 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: Comments must be received by January 26, 2011.

ADDRESSES: Submit your comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     E-mail: [email protected].
     Fax: (303) 312-6341 (prior to faxing, please notify the 
EPA contact listed below).
     Mail, Hand Delivery or Courier: Deliver your comments to 
Christina Cosentini, Solid and Hazardous Waste Program, EPA Region 8, 
Mailcode 8P-HW, 1595 Wynkoop Street, Denver, Colorado 80202-1129. 
Courier or hand deliveries are only accepted during the Regional 
Office's normal hours of operation. The public is advised to call in 
advance to verify the business hours. Special arrangements should be 
made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No.: EPA-R08-RCRA-
2010-0933. EPA's policy is that all comments received will be included 
in the public docket without change, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through regulations.gov, or 
e-mail. The federal Web site http://www.regulations.gov 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 http://www.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. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information may not be publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at: 
EPA Region 8, from 8 a.m. to 4 p.m., 1595 Wynkoop Street, Denver, 
Colorado, contact: Christina Cosentini, phone number (303) 312-6231, or 
the South Dakota Department of Environment and Natural Resources, from 
9 a.m. to 5 p.m., Joe Foss Building, 523 East Capitol Avenue, Pierre, 
SD 57501, contact: Carrie Jacobson, phone number (605) 773-3153. The 
public is advised to call in advance to verify business hours.

FOR FURTHER INFORMATION CONTACT: Christina Cosentini, Solid and 
Hazardous Waste Program, EPA Region 8, 1595 Wynkoop Street, Denver, 
Colorado 80202, (303) 312-6231, [email protected].

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 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 rule?

    We conclude that the State of South Dakota's application to revise 
its authorized program meets all of the statutory and regulatory 
requirements established by RCRA. Therefore, we grant South Dakota 
final authorization to operate its hazardous waste program with the 
changes described in the authorization application. South Dakota has 
responsibility for permitting Treatment, Storage, and Disposal 
Facilities (TSDFs), 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) 
for all areas within the State except for lands located within formal 
Indian Reservations within or abutting the State of South Dakota, 
including the Cheyenne River Indian Reservation, Crow Creek Indian 
Reservation, Flandreau Indian Reservation, Lower Brule Indian 
Reservation, Pine Ridge Indian Reservation, Rosebud Indian

[[Page 81188]]

Reservation, Standing Rock Indian Reservation, Yankton Indian 
Reservation, any land held in trust by the U.S. for an Indian tribe, 
and any other land, whether on or off a reservation that qualifies as 
Indian country within the meaning of 18 U.S.C. 1151. 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 granted authorization to do so.

C. What is the effect of today's authorization decision?

    The effect of this decision is that a facility in South Dakota 
subject to RCRA will now have to comply with the authorized State 
requirements instead of the equivalent federal requirements in order to 
comply with RCRA. The State of 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:
     Conduct inspections, and require monitoring, tests, 
analyses, or reports; and
     Enforce RCRA requirements and suspend or revoke permits; 
and
     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 this action are already effective under State law, 
and are not changed by this action.

D. What happens if EPA receives comments opposing this action?

    If EPA receives comments opposing this authorization, we will 
address all public comments in a later Federal Register. You will not 
have another opportunity to comment on this action, you must do so at 
this time.

E. For what has South Dakota previously been authorized?

    South Dakota initially received final authorization on October 19, 
1984, effective November 2, 1984 (49 FR41038) 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 (58 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); April 23, 2004, effective May 24, 
2004 (69 FR 21962); and March 8, 2006, effective March 8, 2006 (71 FR 
11533).

F. What changes are we approving with today's action?

    South Dakota submitted a complete program revision application on 
April 1, 2010, seeking authorization of their changes in accordance 
with 40 CFR 271.21. Subject to receipt of written comments that oppose 
this action, we now propose 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 its entire Hazardous Waste Program. South Dakota has 
revised its entire program using a method that incorporates the federal 
Program by reference. This method clearly indicates where the State's 
requirements are more stringent or broader-in-scope than the federal 
requirements. The State also excluded federal provisions, from the 
incorporation by reference, that are not delegated to the State's 
program.
    The State of South Dakota revisions consist of regulations which 
specifically govern Federal Hazardous Waste revisions promulgated from 
July 1, 2004 through July 1, 2007, (RCRA Clusters XIV-XVII). South 
Dakota requirements are included in a chart with this document.

------------------------------------------------------------------------
   Description of federal       Federal Register
    requirement (include       date and page (and/     Analogous state
   checklist , if      or RCRA statutory         authority
          relevant)                authority)
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1. Recycled Used Oil          68 FR 44659-44665     South Dakota
 Management Standards;         July 30, 2003.        Codified Laws
 Clarification. (Checklist                           (SDCL) 34A-11;
 203).                                               Administrative
                                                     Rules of South
                                                     Dakota (ARSD),
                                                     74:28:22:01,
                                                     74:28:27:01, 2007
                                                     Rule Update,
                                                     effective September
                                                     13, 2007.
2. NESHAP: Surface Coating    69 FR 22601-22661     South Dakota
 of Automobiles and Light-     April 26, 2004.       Codified Laws
 Duty Trucks. (Checklist                             (SDCL) 34A-11;
 205).                                               Administrative
                                                     Rules of South
                                                     Dakota (ARSD),
                                                     74:28:25:01,
                                                     74:28:28:01, 2007
                                                     Rule Update,
                                                     effective September
                                                     13, 2007.
3. Nonwastewaters from Dyes   70 FR 9138-9180       South Dakota Code
 and Pigments. (Checklist      February 24, 2005.    Annotated (SDCL)
 206).                                               34A-11;
                                                     Administrative
                                                     Rules of South
                                                     Dakota (ARSD),
                                                     74:28:22:01,
                                                     74:28:30:01, 2007
                                                     Rule Update,
                                                     effective September
                                                     13, 2007.
4. Uniform Hazardous Waste    70 FR 10776-10825     South Dakota Code
 Manifest Rule. (Checklist     March 4, 2005.        Annotated (SDCL)
 207).                                               34A-11;
                                                     Administrative
                                                     Rules of South
                                                     Dakota (ARSD),
                                                     74:28:21:02,
                                                     74:28:22:01,
                                                     74:28:23:01,
                                                     74:28:24:01,
                                                     74:28:25:01,
                                                     74:28:28:01, 2007
                                                     Rule Update,
                                                     effective September
                                                     13, 2007.
5. Methods Innovation Rule    70 FR 34538-34592     South Dakota Code
 and SW-846 Final Update       June 14, 2005.        Annotated (SDCL)
 IIIB. (Checklist 208).                              34A-11;
                                                     Administrative
                                                     Rules of South
                                                     Dakota (ARSD),
                                                     74:28:21:02,
                                                     74:28:22:01,
                                                     74:28:25:01,
                                                     74:28:26:01,
                                                     74:28:27:01,
                                                     74:28:28:01,
                                                     74:28:30:01, 2007
                                                     Rule Update,
                                                     effective September
                                                     13, 2007.
6. Universal Waste Rule:      70 FR 45508-45522     South Dakota Code
 Specific Provisions for       August 5, 2005.       Annotated (SDCL)
 Mercury Containing                                  34A-11;
 Equipment. (Checklist 209).                         Administrative
                                                     Rules of South
                                                     Dakota (ARSD),
                                                     74:28:21:02,
                                                     74:28:22:01,
                                                     74:28:25:01,
                                                     74:28:28:01,
                                                     74:28:26:01,
                                                     74:28:30:01,
                                                     74:28:33:01, 2007
                                                     Rule Update,
                                                     effective September
                                                     13, 2007.

[[Page 81189]]

 
7. Standardized Permits for   70 FR 53420-53478     South Dakota Code
 RCRA Hazardous Waste          September 8, 2005.    Annotated (SDCL)
 Management Facilities.                              34A-11;
 (Checklist 210).                                    Administrative
                                                     Rules of South
                                                     Dakota (ARSD),
                                                     74:28:21:02,
                                                     74:28:22:01,
                                                     74:28:26:01, 2008
                                                     Rule Update,
                                                     effective October
                                                     27, 2008.
8. Revisions of Wastewater    70 FR 57769-57785     South Dakota Code
 Treatment Exemptions for      October 4, 2005.      Annotated (SDCL)
 Hazardous Waste Mixtures.                           34A-11;
 (``Headworks exemptions''                           Administrative
 Checklist 211).                                     Rules of South
                                                     Dakota (ARSD),
                                                     74:28:22:01, 2007
                                                     Rule Update,
                                                     effective September
                                                     13, 2007.
9. NESHAP: Final Standards    70 FR 59402-59579     South Dakota Code
 for Hazardous Waste           October 12, 2005.     Annotated (SDCL)
 Combustors. (Phase I Final                          34A-11;
 Replacement Standards and                           Administrative
 Phase II (Checklist 212).                           Rules of South
                                                     Dakota (ARSD),
                                                     74:28:21:02,
                                                     74:28:25:01,
                                                     74:28:26:01,
                                                     74:28:27:01,
                                                     74:28:28:01, 2007
                                                     Rule Update,
                                                     effective September
                                                     13, 2007.
10. Burden Reduction          71 FR 16862-16915     South Dakota Code
 Initiative. (Checklist 213).  April 4, 2006.        Annotated (SDCL)
                                                     34A-11;
                                                     Administrative
                                                     Rules of South
                                                     Dakota (ARSD),
                                                     74:28:21:02,
                                                     74:28:22:01,
                                                     74:28:25:01,
                                                     74:28:26:01,
                                                     74:28:27:01,
                                                     74:28:28:01,
                                                     74:28:33:01 2007
                                                     Rule Update,
                                                     effective September
                                                     13, 2007.
11. Corrections to Errors in  71 FR 40254-40280     South Dakota Code
 the Code of Federal           July 14, 2006.        Annotated (SDCL)
 Regulations. (Checklist                             34A-11;
 214).                                               Administrative
                                                     Rules of South
                                                     Dakota (ARSD),
                                                     74:28:21:02,
                                                     74:28:22:01,
                                                     74:28:23:01,
                                                     4:28:25:01,
                                                     74:28:26:01,
                                                     74:28:27:01,
                                                     74:28:28:01,
                                                     74:28:30:01,
                                                     74:28:33:01, 2008
                                                     Rule Update,
                                                     effective October
                                                     27, 2008.
12. Cathode Ray Tubes Rule.   71 FR 42928-42949     South Dakota Code
 (Checklist 215).              July 28, 2006.        Annotated (SDCL)
                                                     34A-11;
                                                     Administrative
                                                     Rules of South
                                                     Dakota (ARSD),
                                                     74:28:21:02,
                                                     74:28:22:01, 2007
                                                     Rule Update
                                                     effective September
                                                     13, 2007.
------------------------------------------------------------------------

G. Where are the revised state rules different from the federal rules?

    The South Dakota hazardous waste program is equivalent to the 
Federal program in all areas. EPA cannot delegate the Federal 
requirements at 40 CFR part 262, subpart E and H, sections 268.5, 
268.6, 268.42(b), and 268.44(a) through (g). EPA will continue to 
implement these requirements.

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. We will not issue any new permits or new portions of 
permits for the provisions listed in the Table in this document after 
the effective date of this authorization. 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?

    South Dakota is not authorized to carry out its hazardous waste 
program in Indian country, as defined in 18 U.S.C. 1151. This includes, 
but is not limited to:
    1. Lands within the exterior boundaries of the following Indian 
Reservations located within or abutting 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 U.S. for an Indian tribe, and
    3. Any other land, whether on or off a reservation that qualifies 
as Indian country within the meaning of 18 U.S.C. 1151.
    Therefore, this program revision does not extend to Indian country 
where EPA will continue to implement and administer the RCRA program in 
these lands.

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 the 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 this authorization of South Dakota's program changes 
until a later date. In this authorization application EPA is not 
codifying the rules documented in this Federal Register notice.

K. Statutory and Executive Order Reviews

    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 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 
authorizes preexisting 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

[[Page 81190]]

Reform Act of 1995 (Pub. L. 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 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.).

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Hazardous waste 
transportation, Indian 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: December 6, 2010.
Carol Rushin,
Acting Regional Administrator, Region 8.
[FR Doc. 2010-32480 Filed 12-23-10; 8:45 am]
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