South Dakota: Final Authorization of State Hazardous Waste Management Program Revisions and Incorporation by Reference, 8540-8546 [2024-02310]
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Federal Register / Vol. 89, No. 27 / Thursday, February 8, 2024 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 271 and 272
[EPA–R08–RCRA–2023–0424; FRL 11356–
01–R8]
South Dakota: Final Authorization of
State Hazardous Waste Management
Program Revisions and Incorporation
by Reference
Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
AGENCY:
The State of South Dakota
Department of Agriculture and Natural
Resources 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 direct final rule is effective
on April 8, 2024, unless EPA receives
adverse written comment by March 11,
2024. If the EPA receives any such
comment, we will publish a timely
withdrawal of this direct final rule in
the Federal Register informing the
public that the rule will not take effect.
The Director of the Federal Register
approves the incorporation by reference
as of April 8, 2024, in accordance with
5 U.S.C. 552(a) and 1 CFR part 51.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R08–
RCRA–2023–0424; FRL 11356–01–R8 by
one of the following methods:
1. Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
online instructions for submitting
comments.
2. Email: lin.moye@epa.gov.
3. Fax: (303) 312–6341 (prior to
faxing, please notify the EPA contact
listed below).
4. Mail, Hand Delivery or Courier:
Moye Lin, Resource Conservation and
Recovery Act Branch, EPA Region 8,
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SUMMARY:
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Mail Code 8LCR–RC, 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: EPA must receive your
comments by March 11, 2024. Direct
your comments to EPA–R08–RCRA–
2023–0424; FRL 11356–01–R8. The
EPA’s policy is that all comments
received will be included in the public
docket without change and may be
available online at https://
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 https://
regulations.gov or email. The Federal
https://www.regulations.gov website 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 https://
www.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, EPA
recommends that you include your
name and other contact information in
the body of your comment with any CD
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.
Docket: All documents in the docket
are listed in the https://
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. Publicly available docket
materials are available electronically
through https://www.regulations.gov.
For alternative access to docket
materials, please contact the person
identified in the FOR FURTHER
INFORMATION CONTACT section.
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FOR FURTHER INFORMATION CONTACT:
Moye Lin, Resource Conservation and
Recovery Act Branch, EPA Region 8,
1595 Wynkoop Street, Denver, Colorado
80202–1129; phone number (303) 312–
6667; Email address: lin.moye@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 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 title 40
of the Code of Federal Regulations
(CFR), parts 124, 260 through 268, 270,
273, and 279.
B. What authorization decisions has the
EPA made in this rule?
On January 6, 2023, South Dakota
submitted a final complete program
revision application seeking
authorization of changes to its
hazardous waste program. The EPA
concludes that South Dakota’s
application to revise its authorized
program meets all 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) 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, Sisseton-Wahpeton Indian
Reservation, Standing Rock Indian
Reservation, and Yankton Indian
Reservation, (2) any land held in trust
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by the United States for an Indian tribe,
(3) 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
authorized to do so.
C. What is the effect of this
authorization decision?
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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. The State
of South Dakota will continue to have
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 after
notice to and consultation with the
State.
This action to approve these
provisions would not impose additional
requirements on the regulated
community because the regulations for
which the State of South Dakota is
requesting authorization are already
effective under State law and are not
changed by the act of authorization.
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 allowing
the public an opportunity to comment.
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 EPA receives comments that oppose
this authorization, we will publish a
timely withdrawal in the Federal
Register informing the public that this
direct final rule will not take effect. 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); August 8,
2012, effective August 8, 2012 (77 FR
47302); and June 24, 2016, effective
August 23, 2016 (81 FR 41222).
G. What changes is EPA authorizing
with this action?
On January 6, 2023, the State of South
Dakota submitted a final complete
program revision application, seeking
authorization of their changes in
accordance with 40 CFR 271.21. We
now make a final decision, subject to
receipt of written comments that oppose
this action, that South Dakota’s
hazardous waste program satisfies all of
the requirements necessary to qualify
for final authorization. Therefore, we
grant South Dakota final authorization
for the following 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 June 29, 1995 (60
FR 33912; Checklist 144), October 30,
2008 (73 FR 64668; Checklist 219), June
15, 2010 (75 FR 33712; Checklist 224),
and from July 1, 2013, through June 30,
2019 (RCRA Clusters XXIII–XXVII),
except for the final rules published on
January 3, 2018 (83 FR 420; Checklist
239), and on February 22, 2019 (84 FR
5816; Checklist 241). The State
requirements from its Hazardous Waste
Rules, Administrative Rules of South
Dakota (ARSD), Article 74:28, effective
April 19, 2021, are included in the chart
below.
Description of Federal requirement
Federal Register date and page
Removal of Legally Obsolete Rules (Checklist 144) ..............................
60 FR 33912; 6/8/95 .....................
Revisions to the Definition of Solid Waste (Checklist 219) ....................
73 FR 64668; 10/30/08 .................
Withdrawal of the Emission Comparable Fuel Exclusion (Checklist
224).
Conditional Exclusions for Solvent Contaminated Wipes (Checklist
229).
Conditional Exclusion for Carbon Dioxide (CO2) Streams in Geologic
Sequestration Activities (Checklist 230).
Hazardous Waste Electronic Manifest Rule (Checklist 231) ..................
75 FR 33712; 6/15/10 ...................
Revisions to the Export Provisions of the Cathode Ray Tube (CRT)
Rule (Checklist 232).
79 FR 36220; 6/26/14 ...................
Changes affecting all non-waste determinations and variances (Checklist 233A).
80 FR 1694; 1/13/15; 83 FR
24664; 5/30/18.
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78 FR 46448; 7/31/13 ...................
79 FR 350; 1/3/14 .........................
79 FR 7518; 2/7/14 .......................
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Analogous State authority
ARSD 74:28:22:01, 74:28:26:01,
and 74:28:27:01.
ARSD 74:28:21:02, 74:28:22:01,
and 74:28:26:01.
ARSD 74:28:22:01.
ARSD 74:28:21:02 and
74:28:22:01.
ARSD 74:28:21:02 and
74:28:22:01.
ARSD 74:28:21:01(3)(b)(i) and
(xii), 74:28:21:01(20),
74:28:21:02, 74:28:23:01,
74:28:24:01, 74:28:25:01, and
74:28:28:01.
74:28:21:01(3)(b)(xi),
74:28:21:01(20), 74:28:21:02,
and 74:28:22:01.
ARSD 74:28:21:02.
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Description of Federal requirement
Federal Register date and page
Legitimacy-related provisions, including prohibition of sham recycling,
definition of legitimacy, definition of Contained (Checklist 233B).
Speculative Accumulation (Checklist 233C) ...........................................
2008 DSW exclusions and non-waste determinations, including revisions from 2015 DSW final rule and 2018 DSW final rule (Checklist
233D2).
Remanufacturing exclusion (Checklist 233E) .........................................
80 FR 1694; 1/13/15; 83 FR
24664; 5/30/18.
80 FR 1694; 1/13/15 .....................
80 FR 1694; 1/13/15; 83 FR
24664; 5/30/18.
ARSD 74:28:21:02 and
74:28:22:01.
ARSD 74:28:22:01.
ARSD 74:28:21:02, 74:28:22:01,
and 74:28:26:01.
80 FR 1694; 1/13/15 .....................
Response to Vacaturs of the Comparable Fuels Rule and the Gasification Rule (Checklist 234).
Disposal of Coal Combustion Residuals from Electric Utilities (Checklist 235).
Imports and Exports of Hazardous Waste (Checklist 236) ....................
80 FR 18777; 4/8/15 .....................
ARSD 74:28:21:02 and
74:28:22:01.
ARSD 74:28:21:02 and
74:28:22:01.
ARSD 74:28:22:01.
Hazardous Waste Generator Improvements Rule (Checklist 237) ........
81 FR 85732; 11/28/16 .................
Confidentiality Determinations for Hazardous Waste Export and Import
Documents (Checklist 238).
83 FR 60894; 12/26/17 .................
Safe Management of Recalled Airbags (Checklist 240) .........................
83 FR 61552; 11/30/18 .................
2. State-Initiated Changes
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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), as amended, effective
April 19, 2021: ARSD 74:28:21:01
introductory paragraph, 74:28:21:01(1)
‘‘Administrator’’, 74:28:21:01(8)
‘‘Federal Register’’, 74:28:21:01(11)
‘‘New tank system’’ or ‘‘new tank
component’’, 74:28:21:01(13) ‘‘Region’’,
74:28:21:01(14) ‘‘Resource Conservation
and Recovery Act’’, ‘‘RCRA’’,
74:28:21:01(17) ‘‘State’’, 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?
The South Dakota revisions being
authorized in this rule include
provisions that contain purely Federal
functions which are not delegable to
States. The non-delegable Federal
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80 FR 21302; 4/17/15 ...................
81 FR 85696; 11/28/16; 82 FR
41015; 8/29/17; 83 FR 38263; 8/
6/18.
program areas include import/export
requirements reserved as part of the
Federal foreign relations function, and
manifest registry and electronic
manifest functions administered solely
by the EPA. South Dakota has
appropriately adopted these provisions
by leaving the authority with the EPA
for implementation and enforcement.
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 any previously more
stringent or broader-in-scope provisions
to be equivalent to the Federal rules.
I. Who handles permits after the
authorization takes effect?
The State of South Dakota will
continue to 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 we
issued prior to the effective date of this
authorization, until South Dakota has
equivalent instruments in place. 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?
South Dakota is not authorized to
carry out its hazardous waste program
in Indian country, as defined in 18
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Analogous State authority
ARSD 74:28:21:01, 74:28:21:02,
74:28:22:01, 74:28:23:01,
74:28:24:01, 74:28:25:01,
74:28:27:01, 74:28:28:01, and
74:28:33:01.
ARSD 74:28:21:02, 74:28:22:01,
74:28:23:01, 74:28:24:01,
74:28:25:01, 74:28:26:01,
74:28:27:01, 74:28:28:01,
74:28:30:01, and 74:28:33:01.
ARSD 74:28:21:01(20),
74:28:21:02, 74:28:22:01, and
74:28:23:01.
ARSD 74:28:21:02, 74:28:22:01,
and 74:28:23:01.
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. Sisseton-Wahpeton Indian
Reservation
h. Standing Rock Indian Reservation
i. 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.
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
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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
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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 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 EPA with the
consequence that EPA enforces the
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authorized statutory provision. EPA
does not authorize State enforcement
authorities and does not authorize State
procedural requirements. 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 authorized hazardous
waste program effective March 8, 2006
(71 FR 11533), and program revisions
effective August 23, 2016 (81 FR 41222).
In this action, EPA is revising subpart
QQ of 40 CFR part 272 to include the
authorization revision actions described
in this document.
C. What codification decisions have we
made in this rule?
In this rule, the EPA is finalizing
regulatory text that includes
incorporation by reference of the
authorized hazardous waste
management program of the State of
South Dakota. In accordance with
requirements of 1 CFR 51.5, EPA is
finalizing the incorporation by reference
of the South Dakota rules described in
the amendments to 40 CFR part 272 set
forth in § 272.2101. EPA has made, and
will continue to make, these documents
available electronically through https://
www.regulations.gov. For alternative
access to docket materials, please
contact the person identified in the
ADDRESSES section of this preamble.
This action codifies EPA’s
authorization of South Dakota’s base
hazardous waste management program
and its revisions to that program. The
codification reflects the State program
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 EPA previously
made concerning the authorization of
the State’s hazardous waste
management program. EPA is not
requesting comments on its decisions
published in the Federal Register
documents referenced in section I.F of
this document 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
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by amending subpart QQ of 40 CFR part
272. The action amends § 272.2101 and
incorporates by reference South
Dakota’s authorized hazardous waste
regulations, as amended effective April
19, 2021. 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, § 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?
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, 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. The regulation at 40
CFR 272.2101(c)(2) lists these
authorities for informational purposes,
and because 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
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adopted Federal regulations by
reference.
(3) 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, 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
EPA, the State may enforce such
provisions under State law.
South Dakota has adopted but is not
authorized for the Federal Hazardous
Waste Electronic Manifest User Fee Rule
published January 3, 2018 (83 FR 420).
Therefore, the Federal amendments to
40 CFR parts 260, 262, 263, 264, and
265 addressed by this Federal rule and
included in South Dakota’s adoption by
reference at ARSD, sections 74:28:21:01,
74:28:21:02, 74:28:23:01, 74:28:24:01,
74:28:25:01, and 74:28:28:01, are not
part of the State’s authorized program
included in this codification.
Additionally, South Dakota, adopted the
Federal Management Standards for
Hazardous Waste Pharmaceuticals and
Amendment to the P075 Listing for
Nicotine Rule published February 22,
2019 (84 FR 5816). Therefore, the
Federal amendments to 40 CFR parts
261, 262, 264, 265, 266, 268, 270, and
273 addressed by this Federal rule and
included in South Dakota’s adoption by
reference at ARSD sections 74:28:22:01,
74:28:23:01, 74:28:25:01, 74:28:26:01,
74:28:27:01, 74:28:28:01, 74:28:30:01,
and 74:28:33:01 are not part of the
State’s authorized program included in
this codification. EPA has identified in
40 CFR 272.2101(c)(4) those Federal
regulations which, while adopted by
South Dakota, are not authorized by
EPA.
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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
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.
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The codification does not affect
Federal HSWA requirements for which
the State is not authorized. 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
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 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 EPA. However, until
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
section 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
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Fmt 4700
Sfmt 4700
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.).
Executive Order 12898 (59 FR 7629,
February 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
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Federal Register / Vol. 89, No. 27 / Thursday, February 8, 2024 / Rules and Regulations
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 April 8, 2024.
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).
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
Hazardous materials transportation,
Hazardous waste, Incorporation by
reference, Intergovernmental relations,
Water pollution control, Water supply.
Dated: January 30, 2024.
KC Becker,
Regional Administrator, Region 8.
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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
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
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16:18 Feb 07, 2024
Jkt 262001
by the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. 6912(a), 6926,
and 6974(b).
2. Revise § 272.2101 to read as
follows:
■
§ 272.2101 South Dakota Stateadministered program: Final authorization.
(a) History of the State of South
Dakota authorization. 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, August 23, 2016, and
April 8, 2024.
(b) Enforcement authority. 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, and 7003 of RCRA, 42
U.S.C. 6927, 6928, 6934, and 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)
Incorporation by reference. 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. The Director of the Federal Register
in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. This material is available
for inspection at the EPA and at the
National Archives and Records
Administration (NARA). You may
inspect a copy at EPA Region 8, 1595
Wynkoop Street, Denver, Colorado,
phone number (303) 312–6667. For
information on the availability of this
material at NARA, email: fr.inspection@
nara.gov, or go to: https://
www.archives.gov/federal-register/cfr/
ibr-locations.html. 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, SD 57501, phone number 605–
773–3251.
(i) EPA-Approved South Dakota
Regulatory Requirements Applicable to
PO 00000
Frm 00021
Fmt 4700
Sfmt 4700
8545
the Hazardous Waste Management
Program, dated June 2022.
(ii) [Reserved]
(2) Legal basis. The following
provisions provide the legal basis for the
State’s implementation of the hazardous
waste program, but they are not being
incorporated by reference and do not
replace Federal authorities:
(i) South Dakota Codified Laws
(SDCL), as amended, 2021 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 1–41, Department of
Agriculture and Natural Resources,
sections 1–41–3.4, 1–41–18, 1–41–24
and 1–41–25.1.
(ii) SDCL, as amended, 2021 Revision,
Title 15, Civil Procedure: Chapter 15–6,
Rules of Procedure in Circuit Courts,
section 15–6–24(a)–(c).
(iii) SDCL, as amended, 2021
Revision, Title 19, Evidence: Chapter
19–13, Privileges, sections 19–19–
502(1), 19–19–502(5), 19–19–502(b), 19–
19–507 and 19–19–509.
(iv) SDCL, as amended, 2021
Revision, Title 21, Judicial Remedies:
Chapter 21–8, Injunction, section 21–8–
1.
(v) SDCL, as amended, 2021 Revision,
Title 22, Crimes: Chapter 22–6,
Authorized Punishments, sections 22–
6–1 introductory paragraph and 22–6–
1(7).
(vi) SDCL, as amended, 2021
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, 2021
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, 2021
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–10–2.5,
34A–10–5, 34A–10–11, 34A–10–14 and
34A–10–16, Chapter 34A–11, Hazardous
Waste Management, sections 34A–11–1,
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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, 2021
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 April 19,
2021: Chapter 74:08:01, Fees for Records
Reproduction, sections 74:08:01:01,
74:08:01:03, 74:08:01:04, 74:08:01:05.
(3) Related legal provisions. 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, 2021 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.
South Dakota has adopted but is not
authorized for the following Federal
final rules:
(i) Hazardous Waste Management
System; User Fees for the Electronic
Waste Manifest System and
Amendments to Manifest Regulations
(Non-HSWA), published in the Federal
Register of 1/3/18.
(ii) Management Standards for
Hazardous Waste Pharmaceuticals and
Amendment to the P075 Listing for
Nicotine (HSWA/Non-HSWA),
published in the Federal Register of 2/
22/19.
(iii) 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 Secretary of the
South Dakota Department of Agriculture
and Natural Resources Secretary on
March 20, 2023, and by the EPA Region
8 Regional Administrator on March 10,
2023, although not incorporated by
reference, is referenced as part of the
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16:18 Feb 07, 2024
Jkt 262001
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, May 5, 2015, and November 29,
2021, 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. Amend appendix A to part 272 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
(ARSD), Article 74:28, Hazardous Waste, as
amended effective April 19, 2021, adopting
by reference the Federal regulations as of July
1, 2018, and 83 FR 61552 (November 30,
2018).
Sections 74:28:21:01 (except the reference
to ‘‘260.4 and 260.5’’ at 74:28:21:01(3)(b)(xii),
and (14)(f)), 74:28:21:02, 74:28:21:03,
74:28:22:01 (except the phrase ‘‘; and 84 FR
36, 5938–5950 (February 22, 2019)’’),
74:28:23:01, 74:28:24:01, 74:28:25:01 (except
the phrase ‘‘; and 84 FR 36, 5938–5950
(February 22, 2019)’’), 74:28:25:02 through
74:28:25:05, 74:28:26:01 (except the phrase ‘‘;
and 84 FR 36, 5938–5950 (February 22,
2019)’’ in the introductory paragraph),
74:28:27:01 (except the phrase ‘‘; 84 FR 36,
5938–5950 (February 22, 2019)’’ in the
introductory paragraph), 74:28:28:01 (except
the phrase ‘‘; and 84 FR 36, 5938–5950
(February 22, 2019)’’), 74:28:28:02 through
74:28:28:05, 74:28:29:01, 74:28:30:01 (except
the phrase ‘‘; and 84 FR 36, 5938–5950
(February 22, 2019)’’) and 74:28:33:01 (except
the phrase ‘‘; and 84 FR 36, 5938–5950
(February 22, 2019)’’); Article 74:36, Air
Pollution Control Program, section
74:36:11:01.
Copies of the South Dakota regulations that
are incorporated by reference are available
from South Dakota Legislative Research
PO 00000
Frm 00022
Fmt 4700
Sfmt 4700
Council, 3rd Floor, State Capitol, 500 East
Capitol Avenue, Pierre, SD 57501, (Phone:
605–773–3251).
*
*
*
*
*
[FR Doc. 2024–02310 Filed 2–7–24; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Office of the Secretary
45 CFR Parts 170 and 171
RIN 0955–AA03
Health Data, Technology, and
Interoperability: Certification Program
Updates, Algorithm Transparency, and
Information Sharing; Correction
Office of the National
Coordinator for Health Information
Technology (ONC), Department of
Health and Human Services (HHS).
AGENCY:
ACTION:
Final rule; correction.
This document corrects
technical and typographical errors in
the final rule entitled, ‘‘Health Data,
Technology, and Interoperability:
Certification Program Updates,
Algorithm Transparency, and
Information Sharing’’ that was
published in the Federal Register on
January 9, 2024, and has a stated
effective of February 8, 2024.
SUMMARY:
As of February 8, 2024 the
effective date of the final rule published
on January 9, 2024 (89 FR 1192, FR
2023–28857), is corrected to March 11,
2024. The corrections in this document
are effective on March 11, 2024.
DATES:
FOR FURTHER INFORMATION CONTACT:
Kate
Tipping, Office of Policy, National
Coordinator for Health Information
Technology, 202–690–7151.
SUPPLEMENTARY INFORMATION:
I. Background
In Federal Register document 2023–
28857 (89 FR 1192) final rule entitled
‘‘Health Data, Technology, and
Interoperability: Certification Program
Updates, Algorithm Transparency, and
Information Sharing’’ (HTI–1)
(hereinafter referred to as the HTI–1
Final Rule), we identified certain
technical and typographical errors
following publication in the Federal
Register on January 9, 2024. We
summarize and correct these errors in
the ‘‘Summary of Errors’’ and
‘‘Corrections of Errors’’ sections below.
E:\FR\FM\08FER1.SGM
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Agencies
[Federal Register Volume 89, Number 27 (Thursday, February 8, 2024)]
[Rules and Regulations]
[Pages 8540-8546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02310]
[[Page 8540]]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 271 and 272
[EPA-R08-RCRA-2023-0424; FRL 11356-01-R8]
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 Department of Agriculture and
Natural Resources 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 direct final rule is effective on April 8, 2024, unless EPA
receives adverse written comment by March 11, 2024. If the EPA receives
any such comment, we will publish a timely withdrawal of this direct
final rule in the Federal Register informing the public that the rule
will not take effect. The Director of the Federal Register approves the
incorporation by reference as of April 8, 2024, in accordance with 5
U.S.C. 552(a) and 1 CFR part 51.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
RCRA-2023-0424; FRL 11356-01-R8 by one of the following methods:
1. Federal eRulemaking Portal: https://www.regulations.gov. Follow
the online instructions for submitting comments.
2. Email: [email protected].
3. Fax: (303) 312-6341 (prior to faxing, please notify the EPA
contact listed below).
4. Mail, Hand Delivery or Courier: Moye Lin, Resource Conservation
and Recovery Act Branch, EPA Region 8, Mail Code 8LCR-RC, 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: EPA must receive your comments by March 11, 2024.
Direct your comments to EPA-R08-RCRA-2023-0424; FRL 11356-01-R8. The
EPA's policy is that all comments received will be included in the
public docket without change and may be available online at https://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 https://regulations.gov or email.
The Federal https://www.regulations.gov website 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
https://www.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, EPA recommends that you include your name and other
contact information in the body of your comment with any CD 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.
Docket: All documents in the docket are listed in the https://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.
Publicly available docket materials are available electronically
through https://www.regulations.gov. For alternative access to docket
materials, please contact the person identified in the FOR FURTHER
INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Moye Lin, Resource Conservation and
Recovery Act Branch, EPA Region 8, 1595 Wynkoop Street, Denver,
Colorado 80202-1129; phone number (303) 312-6667; Email address:
[email protected].
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 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 title 40 of the Code of Federal Regulations (CFR),
parts 124, 260 through 268, 270, 273, and 279.
B. What authorization decisions has the EPA made in this rule?
On January 6, 2023, South Dakota submitted a final complete program
revision application seeking authorization of changes to its hazardous
waste program. The EPA concludes that South Dakota's application to
revise its authorized program meets all 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) 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,
Sisseton-Wahpeton Indian Reservation, Standing Rock Indian Reservation,
and Yankton Indian Reservation, (2) any land held in trust
[[Page 8541]]
by the United States for an Indian tribe, (3) 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 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. The State of South Dakota will continue to have
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 after notice to and consultation
with the State.
This action to approve these provisions would not impose additional
requirements on the regulated community because the regulations for
which the State of South Dakota is requesting authorization are already
effective under State law and are not changed by the act of
authorization.
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 allowing the public an opportunity to comment. 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 EPA receives comments that oppose this authorization, we will
publish a timely withdrawal in the Federal Register informing the
public that this direct final rule will not take effect. 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); August 8, 2012, effective August 8, 2012 (77 FR 47302); and
June 24, 2016, effective August 23, 2016 (81 FR 41222).
G. What changes is EPA authorizing with this action?
On January 6, 2023, the State of South Dakota submitted a final
complete program revision application, seeking authorization of their
changes in accordance with 40 CFR 271.21. We now make a final decision,
subject to receipt of written comments that oppose this action, that
South Dakota's hazardous waste program satisfies all of the
requirements necessary to qualify for final authorization. Therefore,
we grant South Dakota final authorization for the following 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 June
29, 1995 (60 FR 33912; Checklist 144), October 30, 2008 (73 FR 64668;
Checklist 219), June 15, 2010 (75 FR 33712; Checklist 224), and from
July 1, 2013, through June 30, 2019 (RCRA Clusters XXIII-XXVII), except
for the final rules published on January 3, 2018 (83 FR 420; Checklist
239), and on February 22, 2019 (84 FR 5816; Checklist 241). The State
requirements from its Hazardous Waste Rules, Administrative Rules of
South Dakota (ARSD), Article 74:28, effective April 19, 2021, are
included in the chart below.
------------------------------------------------------------------------
Description of Federal Federal Register Analogous State
requirement date and page authority
------------------------------------------------------------------------
Removal of Legally Obsolete 60 FR 33912; 6/8/ ARSD 74:28:22:01,
Rules (Checklist 144). 95. 74:28:26:01, and
74:28:27:01.
Revisions to the Definition of 73 FR 64668; 10/30/ ARSD 74:28:21:02,
Solid Waste (Checklist 219). 08. 74:28:22:01, and
74:28:26:01.
Withdrawal of the Emission 75 FR 33712; 6/15/ ARSD 74:28:22:01.
Comparable Fuel Exclusion 10.
(Checklist 224).
Conditional Exclusions for 78 FR 46448; 7/31/ ARSD 74:28:21:02
Solvent Contaminated Wipes 13. and 74:28:22:01.
(Checklist 229).
Conditional Exclusion for Carbon 79 FR 350; 1/3/14. ARSD 74:28:21:02
Dioxide (CO2) Streams in and 74:28:22:01.
Geologic Sequestration
Activities (Checklist 230).
Hazardous Waste Electronic 79 FR 7518; 2/7/14 ARSD
Manifest Rule (Checklist 231). 74:28:21:01(3)(b)
(i) and (xii),
74:28:21:01(20),
74:28:21:02,
74:28:23:01,
74:28:24:01,
74:28:25:01, and
74:28:28:01.
Revisions to the Export 79 FR 36220; 6/26/ 74:28:21:01(3)(b)(
Provisions of the Cathode Ray 14. xi),
Tube (CRT) Rule (Checklist 232). 74:28:21:01(20),
74:28:21:02, and
74:28:22:01.
Changes affecting all non-waste 80 FR 1694; 1/13/ ARSD 74:28:21:02.
determinations and variances 15; 83 FR 24664;
(Checklist 233A). 5/30/18.
[[Page 8542]]
Legitimacy-related provisions, 80 FR 1694; 1/13/ ARSD 74:28:21:02
including prohibition of sham 15; 83 FR 24664; and 74:28:22:01.
recycling, definition of 5/30/18.
legitimacy, definition of
Contained (Checklist 233B).
Speculative Accumulation 80 FR 1694; 1/13/ ARSD 74:28:22:01.
(Checklist 233C). 15.
2008 DSW exclusions and non- 80 FR 1694; 1/13/ ARSD 74:28:21:02,
waste determinations, including 15; 83 FR 24664; 74:28:22:01, and
revisions from 2015 DSW final 5/30/18. 74:28:26:01.
rule and 2018 DSW final rule
(Checklist 233D2).
Remanufacturing exclusion 80 FR 1694; 1/13/ ARSD 74:28:21:02
(Checklist 233E). 15. and 74:28:22:01.
Response to Vacaturs of the 80 FR 18777; 4/8/ ARSD 74:28:21:02
Comparable Fuels Rule and the 15. and 74:28:22:01.
Gasification Rule (Checklist
234).
Disposal of Coal Combustion 80 FR 21302; 4/17/ ARSD 74:28:22:01.
Residuals from Electric 15.
Utilities (Checklist 235).
Imports and Exports of Hazardous 81 FR 85696; 11/28/ ARSD 74:28:21:01,
Waste (Checklist 236). 16; 82 FR 41015; 74:28:21:02,
8/29/17; 83 FR 74:28:22:01,
38263; 8/6/18. 74:28:23:01,
74:28:24:01,
74:28:25:01,
74:28:27:01,
74:28:28:01, and
74:28:33:01.
Hazardous Waste Generator 81 FR 85732; 11/28/ ARSD 74:28:21:02,
Improvements Rule (Checklist 16. 74:28:22:01,
237). 74:28:23:01,
74:28:24:01,
74:28:25:01,
74:28:26:01,
74:28:27:01,
74:28:28:01,
74:28:30:01, and
74:28:33:01.
Confidentiality Determinations 83 FR 60894; 12/26/ ARSD
for Hazardous Waste Export and 17. 74:28:21:01(20),
Import Documents (Checklist 74:28:21:02,
238). 74:28:22:01, and
74:28:23:01.
Safe Management of Recalled 83 FR 61552; 11/30/ ARSD 74:28:21:02,
Airbags (Checklist 240). 18. 74:28:22:01, and
74:28:23:01.
------------------------------------------------------------------------
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), as amended,
effective April 19, 2021: ARSD 74:28:21:01 introductory paragraph,
74:28:21:01(1) ``Administrator'', 74:28:21:01(8) ``Federal Register'',
74:28:21:01(11) ``New tank system'' or ``new tank component'',
74:28:21:01(13) ``Region'', 74:28:21:01(14) ``Resource Conservation and
Recovery Act'', ``RCRA'', 74:28:21:01(17) ``State'', 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?
The South Dakota revisions being authorized in this rule include
provisions that contain purely Federal functions which are not
delegable to States. The non-delegable Federal program areas include
import/export requirements reserved as part of the Federal foreign
relations function, and manifest registry and electronic manifest
functions administered solely by the EPA. South Dakota has
appropriately adopted these provisions by leaving the authority with
the EPA for implementation and enforcement. 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 any
previously more stringent or broader-in-scope provisions to be
equivalent to the Federal rules.
I. Who handles permits after the authorization takes effect?
The State of South Dakota will continue to 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 we issued prior to
the effective date of this authorization, until South Dakota has
equivalent instruments in place. 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?
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. Sisseton-Wahpeton Indian Reservation
h. Standing Rock Indian Reservation
i. 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.
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
[[Page 8543]]
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 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 EPA with the consequence that
EPA enforces the authorized statutory provision. EPA does not authorize
State enforcement authorities and does not authorize State procedural
requirements. 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 authorized
hazardous waste program effective March 8, 2006 (71 FR 11533), and
program revisions effective August 23, 2016 (81 FR 41222). In this
action, EPA is revising subpart QQ of 40 CFR part 272 to include the
authorization revision actions described in this document.
C. What codification decisions have we made in this rule?
In this rule, the EPA is finalizing regulatory text that includes
incorporation by reference of the authorized hazardous waste management
program of the State of South Dakota. In accordance with requirements
of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the
South Dakota rules described in the amendments to 40 CFR part 272 set
forth in Sec. 272.2101. EPA has made, and will continue to make, these
documents available electronically through https://www.regulations.gov.
For alternative access to docket materials, please contact the person
identified in the ADDRESSES section of this preamble.
This action codifies EPA's authorization of South Dakota's base
hazardous waste management program and its revisions to that program.
The codification reflects the State program 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 EPA previously made concerning
the authorization of the State's hazardous waste management program.
EPA is not requesting comments on its decisions published in the
Federal Register documents referenced in section I.F of this document
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 of
40 CFR part 272. The action amends Sec. 272.2101 and incorporates by
reference South Dakota's authorized hazardous waste regulations, as
amended effective April 19, 2021. 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, 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.
D. What is the effect of South Dakota's codification on enforcement?
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, 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. The regulation at 40 CFR 272.2101(c)(2) lists these
authorities for informational purposes, and because 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
[[Page 8544]]
adopted Federal regulations by reference.
(3) 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, 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 EPA, the
State may enforce such provisions under State law.
South Dakota has adopted but is not authorized for the Federal
Hazardous Waste Electronic Manifest User Fee Rule published January 3,
2018 (83 FR 420). Therefore, the Federal amendments to 40 CFR parts
260, 262, 263, 264, and 265 addressed by this Federal rule and included
in South Dakota's adoption by reference at ARSD, sections 74:28:21:01,
74:28:21:02, 74:28:23:01, 74:28:24:01, 74:28:25:01, and 74:28:28:01,
are not part of the State's authorized program included in this
codification. Additionally, South Dakota, adopted the Federal
Management Standards for Hazardous Waste Pharmaceuticals and Amendment
to the P075 Listing for Nicotine Rule published February 22, 2019 (84
FR 5816). Therefore, the Federal amendments to 40 CFR parts 261, 262,
264, 265, 266, 268, 270, and 273 addressed by this Federal rule and
included in South Dakota's adoption by reference at ARSD sections
74:28:22:01, 74:28:23:01, 74:28:25:01, 74:28:26:01, 74:28:27:01,
74:28:28:01, 74:28:30:01, and 74:28:33:01 are not part of the State's
authorized program included in this codification. 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 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. 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 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 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 EPA. However, until 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 section 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 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.).
Executive Order 12898 (59 FR 7629, February 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
[[Page 8545]]
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 April 8, 2024.
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).
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
Hazardous materials transportation, Hazardous waste, Incorporation
by reference, Intergovernmental relations, Water pollution control,
Water supply.
Dated: January 30, 2024.
KC Becker,
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, 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) History of the State of South Dakota authorization. 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, August 23, 2016, and April 8,
2024.
(b) Enforcement authority. 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,
and 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934, and 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) Incorporation by reference.
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. The
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. This material is available for inspection at the EPA and
at the National Archives and Records Administration (NARA). You may
inspect a copy at EPA Region 8, 1595 Wynkoop Street, Denver, Colorado,
phone number (303) 312-6667. For information on the availability of
this material at NARA, email: [email protected], or go to: https://www.archives.gov/federal-register/cfr/ibr-locations.html. 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, SD
57501, phone number 605-773-3251.
(i) EPA-Approved South Dakota Regulatory Requirements Applicable to
the Hazardous Waste Management Program, dated June 2022.
(ii) [Reserved]
(2) Legal basis. The following provisions provide the legal basis
for the State's implementation of the hazardous waste program, but they
are not being incorporated by reference and do not replace Federal
authorities:
(i) South Dakota Codified Laws (SDCL), as amended, 2021 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 1-41, Department
of Agriculture and Natural Resources, sections 1-41-3.4, 1-41-18, 1-41-
24 and 1-41-25.1.
(ii) SDCL, as amended, 2021 Revision, Title 15, Civil Procedure:
Chapter 15-6, Rules of Procedure in Circuit Courts, section 15-6-24(a)-
(c).
(iii) SDCL, as amended, 2021 Revision, Title 19, Evidence: Chapter
19-13, Privileges, sections 19-19-502(1), 19-19-502(5), 19-19-502(b),
19-19-507 and 19-19-509.
(iv) SDCL, as amended, 2021 Revision, Title 21, Judicial Remedies:
Chapter 21-8, Injunction, section 21-8-1.
(v) SDCL, as amended, 2021 Revision, Title 22, Crimes: Chapter 22-
6, Authorized Punishments, sections 22-6-1 introductory paragraph and
22-6-1(7).
(vi) SDCL, as amended, 2021 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, 2021 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, 2021 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-10-2.5, 34A-10-5, 34A-10-11, 34A-10-14 and 34A-10-
16, Chapter 34A-11, Hazardous Waste Management, sections 34A-11-1,
[[Page 8546]]
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, 2021 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 April 19, 2021: Chapter 74:08:01, Fees
for Records Reproduction, sections 74:08:01:01, 74:08:01:03,
74:08:01:04, 74:08:01:05.
(3) Related legal provisions. 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, 2021 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. South Dakota has adopted but is
not authorized for the following Federal final rules:
(i) Hazardous Waste Management System; User Fees for the Electronic
Waste Manifest System and Amendments to Manifest Regulations (Non-
HSWA), published in the Federal Register of 1/3/18.
(ii) Management Standards for Hazardous Waste Pharmaceuticals and
Amendment to the P075 Listing for Nicotine (HSWA/Non-HSWA), published
in the Federal Register of 2/22/19.
(iii) 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 Secretary of
the South Dakota Department of Agriculture and Natural Resources
Secretary on March 20, 2023, and by the EPA Region 8 Regional
Administrator on March 10, 2023, 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,
May 5, 2015, and November 29, 2021, 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.
0
3. Amend appendix A to part 272 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 (ARSD), Article 74:28,
Hazardous Waste, as amended effective April 19, 2021, adopting by
reference the Federal regulations as of July 1, 2018, and 83 FR
61552 (November 30, 2018).
Sections 74:28:21:01 (except the reference to ``260.4 and
260.5'' at 74:28:21:01(3)(b)(xii), and (14)(f)), 74:28:21:02,
74:28:21:03, 74:28:22:01 (except the phrase ``; and 84 FR 36, 5938-
5950 (February 22, 2019)''), 74:28:23:01, 74:28:24:01, 74:28:25:01
(except the phrase ``; and 84 FR 36, 5938-5950 (February 22,
2019)''), 74:28:25:02 through 74:28:25:05, 74:28:26:01 (except the
phrase ``; and 84 FR 36, 5938-5950 (February 22, 2019)'' in the
introductory paragraph), 74:28:27:01 (except the phrase ``; 84 FR
36, 5938-5950 (February 22, 2019)'' in the introductory paragraph),
74:28:28:01 (except the phrase ``; and 84 FR 36, 5938-5950 (February
22, 2019)''), 74:28:28:02 through 74:28:28:05, 74:28:29:01,
74:28:30:01 (except the phrase ``; and 84 FR 36, 5938-5950 (February
22, 2019)'') and 74:28:33:01 (except the phrase ``; and 84 FR 36,
5938-5950 (February 22, 2019)''); Article 74:36, Air Pollution
Control Program, 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,
SD 57501, (Phone: 605-773-3251).
* * * * *
[FR Doc. 2024-02310 Filed 2-7-24; 8:45 am]
BILLING CODE 6560-50-P