2010-32480. South Dakota: Final Authorization of State Hazardous Waste Management Program Revision

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed Rule.

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: [e-mail].
• Fax: [phone] (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 [phone], 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 [phone]. 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, [phone], [e-mail].

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 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 requirement (include checklist #, if relevant)	Federal Register date and page (and/or RCRA statutory authority)	Analogous state authority
1. Recycled Used Oil Management Standards; Clarification. (Checklist 203)	68 FR 44659-44665 July 30, 2003	South Dakota Codified Laws (SDCL) 34A-11; 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 of Automobiles and Light-Duty Trucks. (Checklist 205)	69 FR 22601-22661 April 26, 2004	South Dakota Codified Laws (SDCL) 34A-11; 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 and Pigments. (Checklist 206)	70 FR 9138-9180 February 24, 2005	South Dakota Code Annotated (SDCL) 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 Manifest Rule. (Checklist 207)	70 FR 10776-10825 March 4, 2005	South Dakota Code Annotated (SDCL) 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 and SW-846 Final Update IIIB. (Checklist 208)	70 FR 34538-34592 June 14, 2005	South Dakota Code 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, 74:28:30:01, 2007 Rule Update, effective September 13, 2007.
6. Universal Waste Rule: Specific Provisions for Mercury Containing Equipment. (Checklist 209)	70 FR 45508-45522 August 5, 2005	South Dakota Code Annotated (SDCL) 34A-11; 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.
7. Standardized Permits for RCRA Hazardous Waste Management Facilities. (Checklist 210)	70 FR 53420-53478 September 8, 2005	South Dakota Code Annotated (SDCL) 34A-11; 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 Treatment Exemptions for Hazardous Waste Mixtures. (“Headworks exemptions” Checklist 211)	70 FR 57769-57785 October 4, 2005	South Dakota Code Annotated (SDCL) 34A-11; Administrative Rules of South Dakota (ARSD), 74:28:22:01, 2007 Rule Update, effective September 13, 2007.
9. NESHAP: Final Standards for Hazardous Waste Combustors. (Phase I Final Replacement Standards and Phase II (Checklist 212)	70 FR 59402-59579 October 12, 2005	South Dakota Code Annotated (SDCL) 34A-11; Administrative 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 Initiative. (Checklist 213)	71 FR 16862-16915 April 4, 2006	South Dakota Code 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 the Code of Federal Regulations. (Checklist 214)	71 FR 40254-40280 July 14, 2006	South Dakota Code Annotated (SDCL) 34A-11; 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. (Checklist 215)	71 FR 42928-42949 July 28, 2006	South Dakota Code 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 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.