[Federal Register: November 3, 2003 (Volume 68, Number 212)]
[Proposed Rules]
[Page 62264-62267]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03no03-24]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-7581-8]
South Dakota: Final Authorization of State Hazardous Waste
Management Program Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: South Dakota has applied to EPA for Final authorization of the
changes to its hazardous waste program under the Resource Conservation
and Recovery Act (RCRA). EPA has determined that these changes satisfy
all requirements needed to qualify for Final authorization and is
proposing to authorize the State's changes through this proposed final
action.
DATES: Written comments must be received by December 3, 2003.
ADDRESSES: Copies of the South Dakota program revision applications and
the materials which EPA used in evaluating the revisions are available
for inspection and copying at the following locations: EPA Region VIII,
from 7 AM to 4 PM, 999 18th Street, Suite 300, Denver, Colorado 80202-
2466, contact: Kris Shurr, phone number: (303) 312-6139, e-mail: shurr.kris@epa.gov or SDDENR, from 9 AM to 5 PM, Joe Foss Building, 523
E. Capitol, Pierre, South Dakota 57501-3181, contact: Carrie Jacobson,
phone number (605) 773-3153. Send written comments to Kris Shurr, 8P-
HW, U.S. EPA, Region VIII, 999 18th Street, Suite 300, Denver, Colorado
80202-2466, phone number: (303) 312-6139 or electronically to shurr.kris@epa.gov.
FOR FURTHER INFORMATION CONTACT: Kris Shurr, 8P-HW, U.S. EPA, Region
VIII, 999 18th Street, Suite 300, Denver, Colorado 80202-2466, phone number: (303) 312-6139 or shurr.kris@epa.gov. Written comments must be
received by December 3, 2003.
SUPPLEMENTARY INFORMATION:
A. Why Are Revisions to State Programs Necessary?
States which have received Final authorization from EPA under RCRA
section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste
program that is equivalent to, consistent with, and no less stringent
than the Federal program. As the Federal program changes, States must
change their programs and ask EPA to authorize the changes. Changes to
State programs may be necessary when Federal or State
[[Page 62265]]
statutory or regulatory authority is modified or when certain other
changes occur. Most commonly, States must change their programs because
of changes to EPA's regulations in 40 Code of Federal Regulations (CFR)
parts 124, 260 through 266, 268, 270, 273 and 279.
B. What Decisions Have We Made in This Proposed Rule?
We conclude that South Dakota's applications to revise its
authorized program meet all of the statutory and regulatory
requirements established by RCRA. Therefore, we propose to grant South
Dakota final authorization to operate its hazardous waste program with
the changes described in the authorization applications. South Dakota
has responsibility for permitting Treatment, Storage, and Disposal
Facilities (TSDFs) within its borders, except in Indian Country, and
for carrying out the aspects of the RCRA program described in its
revised program application, subject to the limitations of the
Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal
requirements and prohibitions imposed by Federal regulations that EPA
promulgates under the authority of HSWA take effect in authorized
States before they are authorized for the requirements. Thus, EPA will
implement those requirements and prohibitions in South Dakota,
including issuing permits, until South Dakota is authorized to do so.
C. What Is the Effect of Today's Authorization Decision?
This decision means that a facility in South Dakota subject to RCRA
will have to comply with the authorized State requirements instead of
the equivalent Federal requirements in order to comply with RCRA. South
Dakota has enforcement responsibilities under its State hazardous waste
program for violations of such program, but EPA retains its authority
under RCRA sections 3007, 3008, 3013, and 7003, which include, among
others, authority to:
[sbull] Conduct inspections; require monitoring, tests, analyses,
or reports;
[sbull] Enforce RCRA requirements; suspend or revoke permits; and,
[sbull] Take enforcement actions regardless of whether South Dakota
has taken its own actions.
This action does not impose additional requirements on the
regulated community because the regulations for which South Dakota is
being authorized by today's action are already effective and are not
changed by today's action.
D. What Happens if EPA Receives Comments That Oppose This Action?
If EPA receives comments that oppose this authorization, we will
address all public comments in a later Federal Register. You will not
have another opportunity to comment, therefore, if you want to comment
on this action, you must do so at this time.
E. What Has South Dakota Previously Been Authorized for?
South Dakota initially received Final authorization on October 19,
1984, effective November 2, 1984 (49 FR 41038) to implement the RCRA
hazardous waste management program. We granted authorization for
changes to their program on April 17, 1991, effective June 17, 1991 (56
FR 15503); September 8, 1993, effective November 8, 1993 (FR 47216);
January 10, 1994, effective March 11, 1994 (59 FR 01275); July 24,
1996, effective September 23, 1996 (61 FR 38392); and May 9, 2000,
effective June 8, 2000 (65 FR 26755).
F. What Changes Are We Proposing To Authorize With Today's Action?
South Dakota submitted a final complete program revision
applications on August 16, 2002 and February 14, 2003, seeking
authorization of their changes in accordance with 40 CFR 271.21. We now
make an final decision, subject to receipt of written comments that
oppose this action, that South Dakota's hazardous waste program
revision satisfies all of the requirements necessary to qualify for
final authorization. Therefore, we propose to grant South Dakota final
authorization for the following program changes (the Federal Citation
followed by the analog from the Administrative Rules of South Dakota
(ARSD 74:28), revised August 28, 2002): Carbamate Production
Identification and Listing of Hazardous Waste [60 FR 07824, 2/9/95; 60
FR 19165, 4/17/95; and 60 FR 25619, 5/12/95] (Checklist 140)/
74:28:22:01; Conditionally Exempt Small Quantity Generator Disposal
Options under Subtitle D [61 FR 34252, 7/1/96] (Checklist 153)/
74:28:22:01; Land Disposal Restrictions Phase III--Emergency Extention
of the K088 Capacity Variance [62 FR 01992, 1/14/97] (Checklist 155)/
74:28:30:01; Military Munitions Rule [62 FR 06622, 2/12/97] (Checklist
156)/78:28:21:02, 78:28:22:01, 78:28:23:01, 78:28:24:01, 78:28:25:01,
78:28:26:01, 78:28:27:01, and 78:28:28:01; Land Disposal Restrictions
Phase IV--Treatment Standards for Wood Preserving Wastes, Paperwork
Reduction and Streamlining, Exemptions from RCRA for Certain Processed
Materials, and Miscellaneous Hazardous Waste Provisions [62 FR 25998,
5/12/97] (Checklist 157)/78:28:22:01 and 78:28:30:01; Testing &
Monitoring Activities Amendment III [62 FR 32452, 6/13/97] (Checklist
158)/78:28:21:02, 78:28:25:01, 78:28:27:01, and 78:28:28:01;
Conformance with the Carbamate Vacatur [62 FR 32974, 6/17/97]
(Checklist 159)/78:28:22:01 and 78:28:30:01; Land Disposal Restrictions
Phase III--Emergency Extension of the K088 National Capacity Variance,
Amendment [62 FR 37694, 7/14/97] (Checklist 160)/78:28:30:01; Emergency
Revision of the Carbamate Land Disposal Restrictions [62 FR 45568, 8/
28/97] (Checklist 161)/78:28:30:01; Kraft Mill Steam Stripper
Condensate Exclusion [63 FR 18504, 4/15/98] (Checklist 164)/
78:28:22:01; Recycled Used Oil Management Standards--Technical
Correction & Clarification [63 FR 24963, 5/6/98 and 63 FR 37780, 7/14/
98] (Checklist 166)/78:28:22:01 and 78:28:27:01; Land Disposal
Restrictions Phase IV--Treatment Standards for Metal Wastes & Mineral
Processing Wastes [63 FR 28556, 5/26/98] (Checklist 167A)/78:28:30:01;
Land Disposal Restrictions Phase IV--Hazardous Soils Treatment
Standards & Exclusions [63 FR 28556, 5/26/98] (Checklist 167B)/
78:28:30:01; Land Disposal Restrictions Phase IV--Corrections [63 FR
28556, 5/26/98 and 63 FR 31266, 6/8/98] (Checklist 167C)/78:28:30:01;
Bevill Exclusion Revisions & Clarifications [63 FR 28556, 5/26/98]
(Checklist 167E)/78:28:22:01; Exclusion of Recycled Wood Preserving
Wastewaters [63 FR 28556, 5/26/98] (Checklist 167F)/78:28:22:01;
Hazardous Waste Combusters--Revised Standards [63 FR 6/19/98]
(Checklist 168)/78:28:22:01 and 78:28:26:01; Petroleum Refining Process
Wastes [63 FR 42110, 8/6/98] (Checklist 169)/78:28:22:01, 78:28:27:01,
78:28:30:01; Land Disposal Restrictions Phase IV--Zinc Micronutrient
Fertilizeers, Amendment [63 FR 46332, 8/31/98] (Checklist 170)/
78:28:30:01; Emergency Revision of the Land Disposal Restrictions (LDR)
Treatment Standards for Listed Hazardous Wastes from Carbamate
Production [63 FR 47410, 09/04/98] (Checklist 171)/78:28:30:01; Land
Disposal Restrictions Phase IV--Extension of Compliance Date for
Characteristic Slags [63 FR 48124, 9/9/98] (Checklist 172)/78:28:30:01;
Land Disposal Restrictions--Treatment Standards for Spent Potliners
from Primary Aluminum Reduction (K088)--Final Rule [63 FR 51254, 9/24/
98] (Checklist 173)/78:28:30:01; Post-Closure Permit Requirement &
Closure
[[Page 62266]]
Process [63FR 56710, 10/22/98] (Checklist 174)/78:28:25:01,
78:28:26:01, and 78:28:28:01; Universal Waste Rule--Technical
Amendments [63 FR 71225, 12/24/98] (Checklist 176)/78:28:27:01 and
78:28:33:01; Organic Air Emission Standards--Clarification & Technical
Amendments [64 FR 03382, 1/21/99] (Checklist 177/78:28:23:01,
78:28:25:01, and 78:28:28:01; Petroleum Refining Process Wastes--
Leachate Exemption [64 FR 06806, 2/11/99] (Checklist 178)/78:28:22:01;
Land Disposal Restrictions Phase IV--Technical Corrections and
Clarifications to Treatment Standards [64 FR 25408, 05/11/99]
(Checklist 179)/78:28:22:01, 78:28:23:01, and 78:28:30:01; Universal
Waste Rule: Specific Provisions for Hazardous Waste Lamps [64 FR 36466,
07/06/99] (Checklist 181)/74:28:21:02, 74:28:22:01, 74:28:25:01,
74:28:26:01, 74:28:28:01, 74:28:30:01, and 74:28:33:01; Hazardous Air
Pollutant Standards for Combustors [64 FR 52828, 09/30/99 and 64 FR
63209, 11/19/99] (Checklist 182)/74:28:21:01, 74:28:21:02, 74:28:22:01,
74:28:25:01, 74:28:26:01, 74:28:27:01, and 74:28:28:01; Land Disposal
Restrictions Phase IV--Technical Corrections [64 FR 56469, 10/20/99]
(Checklist 183)/74:28:22:01, 74:28:23:01, and 74:28:30:01; Accumulation
Time for Waste Water Treatment Sludges [65 FR 12378, 03/08/2000]
(Checklist 184)/74:28:23:01; Toxicity Characteristics Revision as of
June 30, 2000 [Consolidated Checklist includes 55 FR 11798, 3/29/90 and
55 FR 26986, 6/29/90 (Checklist 74); 55 FR 40834, 10/5/90, 56 FR 03978,
2/1/91, and 56 FR 13406, 4/2/91 (Checklist 80); 56 FR 05910, 2/13/91
(Checklist 84); 57 FR 30657, 7/10/92 (Checklist 108); 57 FR 23062, 6/1/
92 (Checklist 117B); 57 FR 55114, 11/24/92 (Checklist 119), as well as,
58 FR 46040, 8/31/93 (Checklist 126 update) and 62 FR 25998, 5/12/97
(Checklist 157 update).
G. Where Are the Revised State Rules Different From the Federal Rules?
South Dakota did not make any changes that are more stringent or
broader-in-scope than the Federal rules in this rulemaking. South
Dakota did not change any previously more stringent or broader-in-scope
provisions to be equivalent to the Federal rules.
Today's Federal Register notice also eliminates errors in portions
of the federally authorized South Dakota hazardous waste program. In
the process of evaluating South Dakota's application for revisions to
its hazardous waste program, we have discovered certain errors in the
program as adopted in the State's regulations. These errors arose in
part because the State incorporates Federal regulations ``by
reference'' as they appear in the ``Code of Federal Regulations''
(CFR), June 2000 edition, published by the National Archives and
Records Administration. The specific regulations EPA relies upon to
provide official notice to the public and regulated community of any
Federal hazardous waste program are those found in the Federal
Registers that are published each business day, rather than the annual
CFR. Errors appearing in regulations used by the State's hazardous
waste program may or may not be significant. However, in order to avoid
any confusion and to ensure that EPA oversees and enforces the
appropriate hazardous waste regulations, we are publishing the
following list of corrections for errors found in the revisions of the
State's hazardous waste program that are approved in today's Federal
Register. Additional corrections may appear in Federal Registers
approving later revisions to the South Dakota hazardous waste program.
[sbull] In Sec. 266.100, replace ``(b), (c), (d) and (f)'' with
``(b)-(e), (g) and (h).''
[sbull] In Sec. 266.100(d)(3), add the following missing text to
the end of the paragraph: ``or a metal recovery furnace that burns
baghouse bags used to capture metallic dusts emitted by steel
manufacturing, must provide a one-time written notice to the Director
identifying each hazardous waste burned and specifying whether the
owner or operator claims an exemption for each waste under this
paragraph or paragraph (d)(1) of this section. The owners or operator
must comply with the requirements of paragraph (d)(1) of this section
for those wastes claimed to be exempt under that paragraph and must
comply with the requirements below for those wastes claimed to be
exempt under this paragraph (d)(3).''
[sbull] In 40 CFR part 266, appendix VIII, in the ``semivolatiles''
column, replace ``Plychlorinated dibenzo-furans'' with ``Polychlorinate
dibenzo-furans.''
[sbull] In the 40 CFR 268.40 table: (1) under waste code K088,
``Indeno(1,2,3,-c,d) pyrene'' should be ``Indeno(1,2,3-cd) pyrene'',
(2) under waste code K088, ``Bemz(a)anthracene'' should be
``benzo(a)anthracene;
[sbull] At 264.1030(c), replace ``40 CFR 124.15'' (applies to EPA
only) with ``40 CFR 124.5'' (applies to the State).
H. Who Handles Permits After the Authorization Takes Effect?
South Dakota will issue permits for all the provisions for which it
is authorized and will administer the permits it issues. EPA will
continue to administer any RCRA hazardous waste permits or portions of
permits which were issued prior to the effective date of this
authorization until South Dakota has equivalent instruments in place.
We will not issue any new permits or new portions of permits for the
provisions listed in Item G after the effective date of this
authorization. EPA previously suspended issuance of permits for other
provisions on the effective date of South Dakota's Final Authorization
for the RCRA base program and each of the revisions listed in Item F.
EPA will continue to implement and issue permits for HSWA requirements
for which South Dakota is not yet authorized.
I. How Does Today's Action Affect Indian Country (18 U.S.C. 1151) in
South Dakota?
This program revision does not extend to ``Indian country'' as
defined in 18 U.S.C. 1151. Indian country includes:
1. Lands within the exterior boundaries of the following Indian
reservations located within the State of South Dakota:
a. Cheyenne River Indian Reservation;
b. Crow Creek Indian Reservation;
c. Flandreau Indian Reservation;
d. Lower Brule Indian Reservation;
e. Pine Ridge Indian Reservation;
f. Rosebud Indian Reservation;
g. Standing Rock Indian Reservation;
h. Yankton Indian Reservation;
2. Any land held in trust by the United States for an Indian tribe;
and,
3. Any other areas which are ``Indian country'' within the meaning
of 18 U.S.C. 1151.
J. What Is Codification and Is EPA Codifying South Dakota's Hazardous
Waste Program as Authorized in This Rule?
Codification is the process of placing a State's statutes and
regulations that comprise the State's authorized hazardous waste
program into the CFR. We do this by referencing the authorized State
rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272,
subpart QQ for the codification of South Dakota's updated program until
a later date.
K. Administrative Requirements
The Office of Management and Budget has exempted this action from
the requirements of Executive Order 12866 (58 FR 51735, October 4,
1993), and therefore this action is not subject to review by OMB. This
action authorizes State requirements for the purpose of RCRA section
3006 and imposes no additional requirements beyond those imposed by
State law. Accordingly, I
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certify that this action will not have a significant economic impact on
a substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Because this action authorizes pre-existing
requirements under State law and does not impose any additional
enforceable duty beyond that required by State law, it does not contain
any unfunded mandate or significantly or uniquely affect small
governments, as described in the Unfunded Mandates Reform Act of 1995
(Public Law 104-4). For the same reason, this action also does not
significantly or uniquely affect the communities of Tribal governments,
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
This action will not have substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government, as specified in Executive Order 13132 (64 FR 43255,
August 10, 1999), because it merely authorizes State requirements as
part of the State RCRA hazardous waste program without altering the
relationship or the distribution of power and responsibilities
established by RCRA. This action also is not subject to Executive Order
13045 (62 FR 19885, April 23, 1997), because it is not economically
significant and it does not make decisions based on environmental
health or safety risks. This rule is not subject to Executive Order
13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001),
because it is not a significant regulatory action under Executive Order
12866.
Under RCRA section 3006(b), EPA grants a State's application for
authorization as long as the State meets the criteria required by RCRA.
It would thus be inconsistent with applicable law for EPA, when it
reviews a State authorization application, to require the use of any
particular voluntary consensus standard in place of another standard
that otherwise satisfies the requirements of RCRA. Thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996),
in issuing this rule, EPA has taken the necessary steps to eliminate
drafting errors and ambiguity, minimize potential litigation, and
provide a clear legal standard for affected conduct. EPA has complied
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining
the takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings' issued under the executive order.
This rule does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this document and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication in the Federal Register. A major rule cannot take effect
until 60 days after it is published in the Federal Register. This
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This
action will be effective January 2, 2004.
List of Subjects in 40 CFR Part 271
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous materials transportation,
Hazardous waste, Incorporation-by-reference, Indians-lands,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements.
Authority: This action is issued under the authority of sections
2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended
42 U.S.C. 6912(a), 6926, 6974(b).
Dated: October 21, 2003.
Kerrigan G. Clough,
Acting Regional Administrator, Region VIII.
[FR Doc. 03-27553 Filed 10-31-03; 8:45 am]
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