

[Federal Register: March 8, 2006 (Volume 71, Number 45)]
[Rules and Regulations]               
[Page 11533-11536]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08mr06-8]                         

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 271 and 272

[EPA-R08-RCRA-2006-0047; FRL-8035-4]

 
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 http://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 
http://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: (303) 312-6139, e-mail address: 
shurr.kris@epa.gov, 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 FAX number: (303) 312-6341; e-mail address: 
shurr.kris@epa.gov.


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

[[Page 11534]]

and its revisions to that program. In today's action, EPA is amending 
Sec.  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, 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. 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.

0
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

0
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]

0
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, 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

[[Page 11535]]

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: 605-773-3251).
    (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.

[[Page 11536]]

    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: 605-773-3251).
* * * * *
[FR Doc. 06-2180 Filed 3-7-06; 8:45 am]

BILLING CODE 6560-50-P
