03-27553. South Dakota: Final Authorization of State Hazardous Waste Management Program Revision

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

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

FOR FURTHER INFORMATION CONTACT:

Kris Shurr, 8P-HW, U.S. EPA, Region VIII, 999 18th Street, Suite 300, Denver, Colorado 80202-2466, phone number: [phone] or [e-mail]. 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 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:

• Conduct inspections; require monitoring, tests, analyses, or reports;
• Enforce RCRA requirements; 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 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 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.

• In § 266.100, replace “(b), (c), (d) and (f)” with “(b)-(e), (g) and (h).”
• In § 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).”
• In 40 CFR part 266, appendix VIII, in the “semivolatiles” column, replace “Plychlorinated dibenzo-furans” with “Polychlorinate dibenzo-furans.”
• 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;
• 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 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.