
[Federal Register Volume 81, Number 122 (Friday, June 24, 2016)]
[Rules and Regulations]
[Pages 41222-41229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14298]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 271 and 272

[EPA-R08-RCRA-2016-0131; FRL 9947-04-Region 8]


South Dakota: Final Authorization of State Hazardous Waste 
Management Program Revisions and Incorporation by Reference

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

SUMMARY: The State of South Dakota has applied to the Environmental 
Protection Agency (EPA) for Final authorization of the changes to its 
hazardous waste program under the Resource Conservation and Recovery 
Act (RCRA). The EPA has determined that these changes satisfy all 
requirements needed to qualify for final authorization, and is 
authorizing the State's changes through this direct final action. The 
EPA uses the regulations entitled ``Approved State Hazardous Waste 
Management Programs'' to provide notice of the authorization status of 
State programs and to incorporate by reference those provisions of 
State statutes and regulations that will be subject to the EPA's 
inspection and enforcement. This rule also codifies in the regulations 
the approval of South Dakota's hazardous waste management program and 
incorporates by reference authorized provisions of the State's 
regulations.

DATES: This rule is effective on August 23, 2016 unless the EPA 
receives adverse written comment by July 25, 2016. The incorporation by 
reference of certain publications listed in the rule is approved by the 
Director of the Federal Register as of August 23, 2016. If the EPA 
receives adverse comment, it will publish a timely withdrawal of this

[[Page 41223]]

direct final rule in the Federal Register and inform the public that 
this authorization will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
RCRA-2016-0131 by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. Email: cosentini.christina@epa.gov.
    3. Fax: (303) 312-6341 (prior to faxing, please notify the EPA 
contact listed below).
    4. Mail, Hand Delivery or Courier: Christina Cosentini, Resource 
Conservation and Recovery Program, EPA Region 8, Mailcode 8P-R, 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 business 
hours. Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-RCRA-
2016-0131. EPA's policy is that all comments received will be included 
in the public docket without change and may be available online at 
http://www.regulations.gov, 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 
email. The federal http://www.regulations.gov Web site is an 
``anonymous access'' system, which means the EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to the EPA without 
going through regulations.gov, your email 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, the 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 the EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, the 
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.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. 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, 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 4 p.m., 1595 Wynkoop Street, Denver, 
Colorado, contact: Christina Cosentini, phone number (303) 312-6231, or 
the South Dakota Department of Environmental and Natural Resources, 
from 9 a.m. to 5 p.m., Joe Foss Building, 523 East Capitol Avenue, 
Pierre, South Dakota 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, Resource 
Conservation and Recovery Program, EPA Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202; phone number (303) 312-6231; Email address: 
cosentini.christina@epa.gov.

SUPPLEMENTARY INFORMATION: 

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

A. Why are revisions to State programs necessary?

    States which have received final authorization from the 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 the 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 the EPA's regulations in 40 Code of Federal 
Regulations (CFR) parts 124, 260 through 268, 270, 273 and 279. When 
states make other changes to their regulations, it is often appropriate 
for the states to seek authorization for the changes.

B. What decisions have we made in this rule?

    We conclude that 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 (1) all 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; (2) any 
land held in trust by the United States 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. New federal 
requirements and prohibitions imposed by federal regulations that the 
EPA promulgates under the authority of HSWA take effect in authorized 
states before they are authorized for the requirements. Thus, the 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 this authorization decision?

    The effect of this decision is 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 
the 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;
     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 this direct action are already effective under 
State law and are not changed by this action.

[[Page 41224]]

D. Why is the EPA using a direct final rule?

    The EPA is publishing this rule without a prior proposal because we 
view this as a noncontroversial action and anticipate no adverse 
comment. However, in the ``Proposed Rules'' section of this Federal 
Register, we are publishing a separate document that will serve as the 
proposed rule to authorize the State program changes if adverse 
comments are received on this direct final rule. We will not institute 
a second comment period on this action. Any parties interested in 
commenting must do so at this time. For further information about 
commenting on this rule, see the ADDRESSES section of this document.

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

    If the 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.

F. For what has South Dakota previously been authorized?

    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 1275); 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); March 8, 2006, effective March 8, 2006 (71 FR 
11533); and August 8, 2012, effective August 8, 2012 (77 FR 47302).

G. What changes are we authorizing with this action?

    South Dakota submitted a final complete program revision 
application on May 12, 2015, seeking authorization of their changes in 
accordance with 40 CFR 271.21. We now make an immediate 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 grant South Dakota final authorization for the following program 
changes:
1. Program Revision Changes for Federal Rules
    The State of South Dakota revisions consist of regulations which 
specifically govern Federal hazardous waste revisions promulgated from 
July 1, 2007 through June 30, 2012 (RCRA Clusters XVIII-XXII), except 
for the final rules published on January 2, 2008 (73 FR 57; Checklist 
216), October 30, 2008 (73 FR 64668, Checklist 219); December 19, 2008 
(73 FR 77954, Checklist 221); January 8, 2010 (75 FR 1236, Checklist 
222); and June 15, 2010 (75 FR 33712, Checklist 224). The State 
requirements from its Hazardous Waste Rules, Administrative Rules of 
South Dakota (ARSD), Article 74:28, effective October 10, 2013, are 
included in the chart below.

----------------------------------------------------------------------------------------------------------------
     Description of federal                                                                     Analogous state
          requirement                           Federal Register date and page                     authority
----------------------------------------------------------------------------------------------------------------
1. NESHAP: Final Standards for   73 FR 18970; 8/8/08........................................  ARSD 74:28:25-01
 Hazardous Waste Combustors                                                                    and 74:28:27:01.
 (Phase I Final Replacement
 Standards and Phase II)
 Amendments (Checklist 217).
2. F019 Exemption for            73 FR 31756; 6/4/08........................................  ARSD 74:28:22:01.
 Wastewater Treatment Sludges
 from Auto Manufacturing Zinc
 Phosphating Processes
 (Checklist 218).
3. Academic Laboratories         73 FR 7291; 12/1/08........................................  ARSD 74:28:22:01
 Generator Standards (Checklist                                                                and 74:28:23:01.
 220).
4. Hazardous Waste Technical     75 FR 12989; 3/18/10.......................................  ARSD 74:28:21:02,
 Corrections and Clarifications                                                                74:28:22:01,
 (Checklist 223).                                                                              74:28:23:01,
                                                                                               74:28:24:01,
                                                                                               74:28:25:01,
                                                                                               74:28:28:01,
                                                                                               74:28:27:01,
                                                                                               74:28:30:01,
                                                                                               74:28:26:01, and
                                                                                               74:28:23:01.
5. Removal of Saccharin and Its  75 FR 78918; 12/17/10                                        ARSD 74:28:22:01
 Salts from the Lists of                                                                       and 74:28:30:01.
 Hazardous Constituents (Rule
 225; No Federal checklist).
6. Academic Laboratories         75 FR 79304; 12/20/10......................................  ARSD 74:28:23:01.
 Generator Standards Technical
 Corrections (Checklist 226).
7. Revision of the Land          76 FR 34147; 6/13/11.......................................  ARSD 74:28:30:01.
 Disposal Treatment Standards
 for Carbamate Wastes
 (Checklist 227).
8. Hazardous Waste Technical     77 FR 22229; 4/13/12.......................................  ARSD 74:28:22:01
 Corrections and Clarifications                                                                and 74:28:27:01.
 Rule (Checklist 228).
----------------------------------------------------------------------------------------------------------------

2. State-Initiated Changes
    South Dakota has made amendments to its regulations that are not 
directly related to any of the federal rules addressed in Item G.1 
above. These State-initiated changes are either conforming changes made 
to existing authorized provisions, or the adoption of provisions that 
clarify and make the State's regulations internally consistent. The 
State's regulations, as amended by these provisions, provide authority 
which remains equivalent to and no less stringent than the federal laws 
and regulations. These State-initiated changes are submitted under the 
requirements of 40 CFR 271.21(a) and include the following provisions 
from the Administrative Rules of South Dakota (ARSD 74:28), as amended, 
effective October 10, 2013: 74:28:21:01(1), 74:28:21:01(3), 
74:28:21:01(6), 74:28:21:01(8), 74:28:21:01(11), 74:28:25:03, 
74:28:25:04, 74:28:25:05, 74:28:28:03, 74:28:28:04, 74:28:28:05, and 
74:36:11.01.

H. Where are the revised State rules different from the Federal rules?

    South Dakota incorporates the Federal regulations by reference, 
thus making its hazardous waste program equivalent to the federal 
program in all areas. The State did not make any changes that are more 
stringent or broader-in-scope than the federal rules in this 
rulemaking. In addition, South Dakota did not change

[[Page 41225]]

any previously more stringent or broader-in-scope provisions to be 
equivalent to the federal rules.
    EPA will continue to implement certain federal requirements that 
the EPA cannot delegate to States. The requirements include: (1) 
Certain provisions in 40 CFR 261.39(a)(5) and 261.41 part 262, subparts 
E, F and H, part 263, subpart B, Sec. Sec.  264.12(a)(2), 264.71(a)(3), 
264.71(d), 265.12(a)(2), 265.71(a)(3), and 265.71(d) regarding 
governmental oversight of exports and imports of hazardous waste; (2) 
manifest registry functions in 40 CFR parts 262, Subpart B; (3) 268.5, 
268.6, 268.42(b), and 268.44(a)-(g) regarding land disposal 
restrictions; and (4) 279.82(b) regarding State petitions to allow use 
of used oil as a dust suppressant.

I. 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. The 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 the Table in this document after the effective 
date of this authorization. The EPA will continue to implement and 
issue permits for HSWA requirements for which South Dakota is not yet 
authorized.

J. How does this action affect Indian Country (18 U.S.C. 1151) in South 
Dakota?

    This determination to approve South Dakota's RCRA program revisions 
applies to all activities in South Dakota outside of ``Indian 
country,'' as that term is defined in 18 U.S.C. 1151, including:
    1. All 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 United States for an Indian tribe; 
and,
    3. Any other areas which are ``Indian country'' within the meaning 
of 18 U.S.C. 1151.
    Under principles of Federal Indian law, states generally do not 
have authority to regulate in Indian country. Ala. v. Native Vill. of 
Venetie Tribal Gov't., 522 U.S. 520 n.1 (1998). Accordingly, in the 
absence of an express grant of authority to a state from Congress, EPA 
typically excludes Indian country from program delegations and 
authorizations to states. See RCRA Authorization regulations at 40 CFR 
271.1(h) (``[I]n many cases States will lack authority to regulate 
activities on Indian lands.'').
    Indian country is defined by federal statute, 18 U.S.C. 1151, as:
    a. All land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and, including rights-of-way running through 
the reservation;
    b. all dependent Indian communities within the borders of the 
United States whether within the original or subsequently acquired 
territory thereof, and whether within or without the limits of a state; 
and
    c. all Indian allotments, the Indian titles to which have not been 
extinguished, including rights-of-way running through the same.
    It is important to note that the phrase ``notwithstanding the 
issuance of any patent'' in 18 U.S.C. 1151(a) has been interpreted by 
the U.S. Supreme Court to include fee patents (also known as land 
titles or land deeds) issued to Indians and non-Indians alike. See, 
Seymour v. Superintendent, 368 U.S. 351, 358 (1962). Accordingly, fee-
owned lands, whether owned by Indians or nonmembers of the relevant 
Indian tribe, which are within the exterior boundaries of Indian 
reservations, are Indian country. While 18 U.S.C. 1151 on its face 
relates to criminal jurisdiction, the U.S. Supreme Court has held that 
it is also relevant for civil regulatory jurisdiction. See, DeCoteau v. 
Dist. County Court, 420 U.S. 425, 427 n.2 (1975).
    In addition, tribal trust lands located outside of formal 
reservations are also Indian country as defined in 18 U.S.C. 1151. For 
a detailed legal discussion and explanation of this interpretation of 
Indian country, see Letter from Jack W. McGraw, Acting Regional 
Administrator, United States Environmental Agency, to Steven M. Pirner, 
Secretary, South Dakota Department of Environment and Natural Resources 
(April 2, 2002), printed in 67 FR 45684 through 45687 (July 10, 2002).

II. Incorporation by Reference

A. What is codification?

    Codification is the process of including the statutes and 
regulations that comprise the State's authorized hazardous waste 
management program into the CFR. Section 3006(b) of RCRA, as amended, 
allows the Environmental Protection Agency (EPA) to authorize State 
hazardous waste management programs. The State regulations authorized 
by the EPA supplant the federal regulations concerning the same matter 
with the result that after authorization EPA enforces the authorized 
regulations. Infrequently, State statutory language which acts to 
regulate a matter is also authorized by the EPA with the consequence 
that the EPA enforces the authorized statutory provision. The EPA does 
not authorize State enforcement authorities and does not authorize 
State procedural requirements. The EPA codifies the authorized State 
program in 40 CFR part 272 and incorporates by reference State statutes 
and regulations that make up the approved program which is federally 
enforceable in accordance with Sections 3007, 3008, 3013, and 7003 of 
RCRA, 42 U.S.C. 6927, 6928, 6934 and 6973, and any other applicable 
statutory and regulatory provisions.

B. What is the history of the codification of South Dakota's hazardous 
waste management program?

    The EPA incorporated by reference South Dakota's then authorized 
hazardous waste program effective March 8, 2006 (71 FR 11533). In this 
action, the EPA is revising Subpart QQ of 40 CFR part 272 to include 
the authorization revision actions described in this document.

C. What decisions have we made in this rule?

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference of the South 
Dakota rules described in the amendments to 40 CFR part 272 set forth 
below. The EPA has made, and will continue to make, these documents 
available electronically through http://www.regulations.gov and in hard 
copy at the appropriate EPA office (see the ADDRESSES section of this 
preamble for more information).
    This action codifies the EPA's authorization of South Dakota's base 
hazardous waste management program and its revisions to that program. 
The codification reflects the State program

[[Page 41226]]

that would be in effect at the time EPA's authorized revisions to the 
South Dakota hazardous waste management program addressed in this 
direct final rule become final. This action does not reopen any 
decision the EPA previously made concerning the authorization of the 
State's hazardous waste management program. The EPA is not requesting 
comments on its decisions published in the Federal Register documents 
referenced in Section I.F of this preamble concerning revisions to the 
authorized program in South Dakota.
    The EPA is incorporating by reference EPA's approval of South 
Dakota's hazardous waste management program by amending Subpart QQ to 
40 CFR part 272. The action amends section 272.2101 and incorporates by 
reference South Dakota's authorized hazardous waste regulations, as 
amended effective October 10, 2013. Section 272.2101 also references 
the demonstration of adequate enforcement authority, including 
procedural and enforcement provisions, which provide the legal basis 
for the State's implementation of the hazardous waste management 
program. In addition, section 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.

D. What is the effect of South Dakota's codification on enforcement?

    The EPA retains the authority under statutory provisions, including 
but not limited to, RCRA sections 3007, 3008, 3013 and 7003, and other 
applicable statutory and regulatory provisions to undertake inspections 
and enforcement actions and to issue orders in all authorized states. 
With respect to enforcement actions, the EPA will rely on federal 
sanctions, federal inspection authorities, and federal procedures 
rather than the State analogs to these provisions. Therefore, the EPA 
is not incorporating by reference South Dakota's inspection and 
enforcement authorities nor are those authorities part of South 
Dakota's approved State program which operates in lieu of the federal 
program. 40 CFR 272.2101(c)(2) lists these authorities for 
informational purposes, and because the EPA also considered them in 
determining the adequacy of South Dakota's procedural and enforcement 
authorities. South Dakota's authority to inspect and enforce the 
State's hazardous waste management program requirements continues to 
operate independently under State law.

E. What State provisions are not part of the codification?

    The public is reminded that some provisions of South Dakota's 
hazardous waste management program are not part of the federally 
authorized State program. These non-authorized provisions include:
    (1) Provisions that are not part of the RCRA subtitle C program 
because they are ``broader in scope'' than RCRA subtitle C (see 40 CFR 
271.1(i));
    (2) Federal rules for which South Dakota is not authorized, but 
which have been incorporated into the State regulations because of the 
way the State adopted federal regulations by reference.
    (3) Federal rules for which South Dakota is authorized but which 
were vacated by the U.S. Court of Appeals for the District of Columbia 
Circuit (D.C. Cir. No. 98-1379 and 98-1379; June 27, 2014).
    (4) State procedural and enforcement authorities which are 
necessary to establish the ability of the State's program to enforce 
compliance but which do not supplant the Federal statutory enforcement 
and procedural authorities.
    State provisions that are ``broader in scope'' than the federal 
program are not incorporated by reference in 40 CFR part 272. For 
reference and clarity, the EPA lists in 40 CFR 272.2101(c)(3) the South 
Dakota statutory provisions which are ``broader in scope'' than the 
federal program and which are not part of the authorized program being 
incorporated by reference. While ``broader in scope'' provisions are 
not part of the authorized program and cannot be enforced by the EPA, 
the State may enforce such provisions under State law.
    South Dakota has adopted but is not authorized for certain federal 
final rules published between June 29, 1995 and June 15, 2010. 
Therefore, the federal amendments to 40 CFR parts 260, 261, 262, 263, 
264, 265, 266, 268, 270 and 273 addressed by these Federal rules and 
included in South Dakota's adoption by reference at ARSD, sections 
74:28:21:02, 74:28:22:01, 74:28:23:01, 74:28:24:01, 74:28:25:01, 
74:28:28:01, 74:28:27:01, 74:28:30:01, 74:28:26:01 and 74:28:33:01, 
respectively, are not part of the State's authorized program included 
in this codification. The EPA has identified in 40 CFR 272.2101(c)(4) 
those federal regulations which, while adopted by South Dakota, are not 
authorized by EPA.

F. What will be the effect of codification on Federal HSWA 
requirements?

    With respect to any requirement(s) pursuant to HSWA for which the 
State has not yet been authorized, and which the EPA has identified as 
taking effect immediately in States with authorized hazardous waste 
management programs, EPA will enforce those Federal HSWA standards 
until the State is authorized for those provisions.
    The codification does not affect Federal HSWA requirements for 
which the State is not authorized. The EPA has authority to implement 
HSWA requirements in all states, including states with authorized 
hazardous waste management programs, until the states become authorized 
for such requirements or prohibitions, unless the EPA has identified 
the HSWA requirement(s) as an optional or as a less stringent 
requirement of the federal program. A HSWA requirement or prohibition, 
unless identified by the EPA as optional or as less stringent, 
supersedes any less stringent or inconsistent State provision which may 
have been previously authorized by EPA (50 FR 28702, July 15, 1985).
    Some existing State requirements may be similar to the HSWA 
requirements implemented by the EPA. However, until the EPA authorizes 
those State requirements, EPA enforces the HSWA requirements and not 
the State analogs.

III. Administrative Requirements

    The Office of Management and Budget (OMB) has exempted this action 
from the requirements of Executive Orders 12866 (58 FR 51735, October 
4, 1993) and 13563 (76 FR 3821, January 21, 2011). 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,

[[Page 41227]]

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 the 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, the EPA has taken the necessary steps to 
eliminate drafting errors and ambiguity, minimize potential litigation, 
and provide a clear legal standard for affected conduct. The 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.). Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. Because this rule authorizes pre-
existing State rules which are at least equivalent to, and no less 
stringent than existing federal requirements, and imposes no additional 
requirements beyond those imposed by State law, and there are no 
anticipated significant adverse human health or environmental effects, 
the rule is not subject to Executive Order 12898.
    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. The 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 August 23, 2016.

List of Subjects

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.

40 CFR Part 272

    Environmental protection, Hazardous materials transportation, 
Hazardous waste, Incorporation by reference, Intergovernmental 
relations, Water pollution control, Water supply.

    Authority:  This rule 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: May 11, 2016.
Shaun L. McGrath,
Regional Administrator, Region 8.

    For the reasons set forth in the preamble, under the authority at 
42 U.S.C. 6912(a), 6926, and 6974(b), EPA is granting final 
authorization under 40 CFR part 271 to the State of South Dakota for 
revisions to its hazardous waste program under the Resource 
Conservation and Recovery Act and is amending 40 CFR part 272 as 
follows:

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 of 1976, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).

0
2. Revise 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, March 8, 2006, August 8, 2012 and August 
23, 2016.
    (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. You may 
obtain copies of the South Dakota regulations that are incorporated by 
reference in this paragraph from South Dakota Legislative Research 
Council, 3rd Floor, State Capitol, 500 East Capitol Avenue, Pierre, 
South Dakota 57501, (Phone: (605) 773-3251). You may inspect a copy at 
EPA Region 8, 1595 Wynkoop Street, Denver, Colorado, phone number (303) 
312-

[[Page 41228]]

6231, or at the National Archives and Records Administration (NARA). 
For information on the availability of this material at NARA, call 
(202) 741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.
    (i) The Binder entitled ``EPA-Approved South Dakota Regulatory 
Requirements Applicable to the Hazardous Waste Management Program'', 
dated February 2016.
    (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, 2013 Revision, 
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, 1-26-21, 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, 1-27-3, 1-27-9(2) and 1-27-28, 1-27-31; 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, 2013 Revision, Title 15, Civil Procedure: 
Chapter 15-6, Rules of Procedure in Circuit Courts, section 15-6-24(a)-
(c).
    (iii) SDCL, as amended, 2013 Revision, 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, 2013 Revision, Title 21, Judicial Remedies: 
Chapter 21-8, Injunction, section 21-8-1.
    (v) SDCL, as amended, 2013 Revision, Title 22, Crimes: Chapter 22-
6, Authorized Punishments, sections 22-6-1 introductory paragraph and 
22-6-1(7).
    (vi) SDCL, as amended, 2013 Revision, 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, 2013 Revision, Title 34, Public Health and 
Safety: Chapter 34-21, Radiation and Uranium Resources Exposure 
Control, section 34-21-2(7).
    (viii) SDCL, as amended, 2013 Revision, 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, 34A-11-2 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; Chapter 
34A-12, Regulated Substance Discharges, sections 34A-12-1(8), 34A-12-4, 
34A-12-6, 34A-12-8 through 34A-12-13, 34A-12-13.1 and 34A-12-14.
    (ix) SDCL, as amended, 2013 Revision, 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 October 10, 2013: 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, 2013 Revision, 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. (i) South Dakota has adopted but 
is not authorized for the following federal final rules:
    (A) Removal of Legally Obsolete Rules (HSWA/non-HSWA) [60 FR 33912, 
06/29/95];
    (B) Imports and Exports of Hazardous Waste: Implementation of OECD 
Council Division (HSWA--Not delegable to States) [61 FR 16290, 04/12/
96];
    (C) Clarification of Standards for Hazard Waste Land Disposal 
Restriction Treatment Variances (HSWA) [62 FR 64504, 12/05/97];
    (D) Hazardous Waste Combustors; Revised Standards (Non-HSWA--
Vacated by the U.S. Court of Appeals for the District of Columbia 
Circuit (D.C. Cir. No. 98-1379 and 98-1379; June 27, 2014) [63 FR 
33782, 6/19/98];
    (E) Vacatur of Organobromide Production Waste Listings (HSWA) [65 
FR 14472, 03/17/00];
    (F) National Environmental Performance Track Program (Non-HSWA--
terminated by EPA (74 FR 22741, 5/14/09)) [69 FR 21737, 4/22/04; as 
amended by 69 FR 62217, 10/25/04 and 71 FR 16862, 4/4/06];
    (G) Exclusion of Oil-Bearing Secondary Materials Processed in a 
Gasification System to Produce Synthesis Gas (Non-HSWA--Vacated by the 
U.S. Court of Appeals for the District of Columbia Circuit (D.C. Cir. 
No. 98-1379 and 98-1379; June 27, 2014) [73 FR 52, 1/2/08];
    (H) Revisions to the Definition of Solid Waste (Non-HSWA) [73 FR 
64668, 10/30/08];
    (I) OECD Requirements; Export Shipments of Spent Lead Acid 
Batteries (Non-HSWA--Not delegable to States) [75 FR 1236, 1/8/10]; and
    (J) Withdrawal of the Emission Comparable Fuel Exclusion (Non-
HSWA--Vacated by the U.S. Court of Appeals for the District of Columbia 
Circuit (D.C. Cir. No. 98-1379 and 98-1379; June 27, 2014) [75 FR 
33712, 6/15/10].
    (ii) 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 
the EPA.
    (5) Memorandum of Agreement. The Memorandum of Agreement between 
EPA Region 8 and the State of South Dakota, signed by the Secretary of 
the South Dakota Department of Natural Resources on December 14, 2015, 
and by the EPA Regional Administrator on February 18, 2016, 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, December 29, 1994, September 
5, 1995, October 23, 1997, October 27, 1997, October 28, 1997, November 
5, 1999, June 26, 2000, June 18, 2002, October 19, 2004, May 11, 2009 
and May 5, 2015, 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,

[[Page 41229]]

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.

0
3. Appendix A to Part 272, is amended by revising the listing for 
``South Dakota'' 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 October 10, 2013, 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, as of 
June 25, 2013, section 74:36:11:01.
    Copies of the South Dakota regulations that are incorporated by 
reference are available from South Dakota Legislative Research 
Council, 3rd Floor, State Capitol, 500 East Capitol Avenue, Pierre, 
South Dakota 57501, (Phone: (605) 773-3251).
* * * * *
[FR Doc. 2016-14298 Filed 6-23-16; 8:45 am]
 BILLING CODE 6560-50-P


