06-2180. 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:

Final rule and response to comments.

SUMMARY:

The EPA is granting final authorization to the hazardous waste program revisions submitted by South Dakota. The Agency published a Proposed Rule on September 27, 2005, and provided for public comment. The comment period ended on October 27, 2005. No comments were received regarding Resource Conservation and Recovery Act (RCRA) program issues. There was one comment from South Dakota State Attorney General regarding Indian country language. No further opportunity for comment will be provided. This final rule also codifies and incorporates by reference the authorized provisions of the South Dakota regulations in Title 40 of the Code of Federal Regulations (CFR) part 272.

DATES:

This final rule is effective on March 8, 2006. The incorporation by reference of authorized provisions in the South Dakota regulations contained in this rule is approved by the Director of the Federal Register as of March 8, 2006, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R08-RCRA-2006-0047. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at: EPA Region 8, from 8 a.m. to 3 p.m., 999 18th Street, Suite 300, Denver, Colorado 80202-2466, contact: Kris Shurr, phone number: [phone], e-mail address: [e-mail], 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 [phone].

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

I. Authorization of Revisions to South Dakota's Hazardous Waste Program and Correction

On October 25, 2004, South Dakota submitted final complete program revision applications seeking authorization of their changes in accordance with 40 CFR 271.21. We now make a Final decision that South Dakota's hazardous waste program revisions satisfy all of the requirements necessary to qualify for Final authorization. For a list of rules that become effective with this Final Rule, please see the Proposed Rule published in the September 27, 2005 Federal Register at 70 FR 56419. EPA is making one correction to the Proposed Rule. In the list of authorized provisions for Checklists 154 through 154.6 (Column 1, page 56421), the effective date for “74:36:11:01” is January 2, 2005.

Response to Comments: EPA proposed to authorize South Dakota's State Hazardous Waste Management Program Revisions on September 27, 2005 (70 FR 56419). EPA received only one comment from the State of South Dakota, objecting to EPA's definition of Indian country, where the State is not authorized to administer its program. Specifically, the State disagreed that all “trust land” in South Dakota is Indian country. However, in the comment letter, the State of South Dakota conveyed to EPA that “while we [the State] continue to object and disagree on this issue, the state will accept EPA's authorization of the hazardous waste program revisions as described in EPA's September 27, 2005 notice in the Federal Register.”

EPA maintains the interpretation of Indian country in South Dakota as described in the September 27, 2005 Federal Register notice of proposed rulemaking. Further explanation of this interpretation of Indian country can be found at 67 FR 45684 through 45686 (July 10, 2002).

II. Incorporation by Reference

In the Proposed Rule published on September 27, 2005 (70 FR 56419), EPA also proposed to codify EPA's authorization of South Dakota's base hazardous waste management program and its revisions to that program. In today's action, EPA is amending § 272.2101 to incorporate by reference South Dakota's authorized hazardous waste regulations. Section 272.2101 also references the demonstration of adequate enforcement authority, including procedural and enforcement provisions, which provides the legal basis for the State's implementation of the hazardous waste management program. In addition, § 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. The September 27, 2005 Proposed Rule provides details about State provisions which are not part of the codification, as well as the effect of South Dakota's codification on enforcement and on Federal requirements promulgated under the Hazardous and Solid Waste Amendments of 1984 (HSWA).

III. 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 and codifies 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 and codifies 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 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 and codifies 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.).

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 March 8, 2006.

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: February 7, 2006.

Kerrigan G. Clough,

Acting Regional Administrator, Region 8.

For the reasons set forth in the preamble, 40 CFR parts 271 and 272 are amended as follows:

PART 271—REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE PROGRAMS

EPA is granting 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 § 272.2101 to read as follows:

§ 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, 2000, May 24, 2004 and March 8, 2006.

(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 the South Dakota Legislative Research Council, 3rd Floor, State Capitol, 500 East Capitol Avenue, Pierre, SD 57501, (Phone: [phone]).

(i) The Binder entitled “EPA Approved South Dakota Regulatory Requirements Applicable to the Hazardous Waste Management Program”, dated December, 2005.

(ii) [Reserved]

(2) EPA considered the following statutes and regulations in evaluating the State program but is not incorporating them herein 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. South Dakota has adopted but is not authorized for the following Federal final rules: (1) Removal of Legally Obsolete Rules (HSWA/non-HSWA) [60 FR 33912, 06/29/95]; (2) Imports and Exports of Hazardous Waste: Implementation of OECD Council Division (HSWA—Not delegable to States) [61 FR 16290, 04/12/96]; (3) Clarification of Standards for Hazard Waste Land Disposal Restriction Treatment Variances (HSWA) [62 FR 64504, 12/05/97]; and (4) Vacatur of Organobromide Production Waste Listings (HSWA) [65 FR 14472, 03/17/00]. 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:

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, effective January 2, 2005, section 74:36:11:01.

Copies of the South Dakota regulations that are incorporated by reference are available from the South Dakota Legislative Research Council, 3rd Floor, State Capitol, 500 East Capitol Avenue, Pierre, SD 57501, (Phone: [phone]).

* * * * *