South Dakota: Final Approval of State Underground Storage Tank Program Revisions, Codification, and Incorporation by Reference, 42390-42396 [2024-10367]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 89, Number 95 (Wednesday, May 15, 2024)]
[Rules and Regulations]
[Pages 42390-42396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10367]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 281 and 282

[EPA-R08-UST-2023-0563; FRL-11550-02-R8]


South Dakota: Final Approval of State Underground Storage Tank 
Program Revisions, Codification, and Incorporation by Reference

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The State of South Dakota Department of Agriculture and 
Natural Resources (DANR) has applied to the EPA for final approval of 
the changes to its Underground Storage Tank (UST) program under the 
Resource Conservation and Recovery Act (RCRA). The EPA has reviewed 
South Dakota's application and determined that South Dakota's UST 
program revisions satisfy all requirements needed for program approval. 
This action also codifies the EPA's approval of South Dakota's State 
program and incorporates by reference those provisions of the State's 
regulations that we have determined meet the requirements for approval.

DATES: This rule is effective on July 15, 2024 unless EPA receives 
adverse written comment by June 14, 2024. Should EPA receive such 
comments, it will publish a timely document either: withdrawing the 
direct final publication or affirming the publication and responding to 
comments. The incorporation by reference of certain publications listed 
in the regulations is approved by the Director of the Federal Register, 
as of July 15, 2024, in accordance with 5 U.S.C. 552(a) and 1 CFR part 
51.

ADDRESSES: Submit your comments by one of the following methods:
    Federal eRulemaking Portal: https://www.regulations.gov. Follow the 
online instructions for submitting comments.
    Email: [email protected].
    Fax: (303) 312-6341 (prior to faxing, please notify the EPA contact 
listed below).
    Mail, hand delivery or courier: Jeff Fitzgibbons, Resource 
Conservation and Recovery Program, EPA Region 8, Mailcode 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 June 14, 2024. 
Direct your comments to Docket ID No. EPA-R08-UST-2023-0563; FRL-11550-
02-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://www.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, the 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

[[Page 42391]]

identified in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Jeff Fitzgibbons, Resource 
Conservation and Recovery Program, EPA Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129; telephone number (303) 312-6633; email 
address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Approval of Revisions to South Dakota's Underground Storage Tank 
Program

    EPA is publishing this rule without prior proposal because the EPA 
views this as a noncontroversial action and does not anticipate adverse 
comments. However, in the ``Proposed Rules'' section of this Federal 
Register, EPA is publishing a separate document that will serve as a 
proposal to authorize the revision should the EPA receive adverse 
comment. Unless EPA receives adverse written comments during the review 
and comment period, the decision to authorize South Dakota's UST 
program revision will take effect as provided below. The State's 
federally authorized and codified UST program, as revised pursuant to 
this action, will remain subject to the EPA's inspection and 
enforcement authorities under RCRA and other applicable statutory and 
regulatory provisions.

A. Why are revisions to State programs necessary?

    States which have received final approval from the EPA under RCRA 
section 9004(b) of RCRA, 42 U.S.C. 6991c(b), must maintain an 
underground storage tank 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 to comply with the 
updated regulations and submit these revisions to the EPA for approval. 
Changes to State programs may be necessary when Federal or State 
statutory or regulatory authority is modified or when certain other 
changes occur. Most commonly, States must change their programs because 
of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) 
part 280.

B. What decisions has the EPA made in this rule?

    On October 24, 2023, the State of South Dakota submitted a final 
complete program revision application seeking authorization of changes 
to its UST program that correspond to the EPA final rule promulgated on 
July 15, 2015 (80 FR 41566), which revised the 1988 UST regulations and 
the 1988 State program approval (SPA) regulations (2015 Federal 
Revisions). As required by 40 CFR 281.20, the State Application 
contains the following: a transmittal letter from the Governor 
requesting approval, a description of the program and operating 
procedures, a demonstration of the State's procedures to ensure 
adequate enforcement, a Memorandum of Agreement outlining the roles and 
responsibilities of the EPA and the implementing agency, a statement of 
certification from the Attorney General, and copies of all relevant 
State statutes and regulations. The EPA has reviewed South Dakota's 
application to revise its authorized program and determined that the 
revisions to South Dakota's UST program are equivalent to, consistent 
with, and no less stringent than the corresponding Federal requirements 
in subpart C of 40 CFR part 281, and that the South Dakota program 
provides for adequate enforcement of compliance (40 CFR 281.11(b)). 
Therefore, we grant South Dakota final authorization to operate its UST 
program with the changes described in the program revision application 
and as outlined below in section I.G. of this document.

C. What is the effect of this authorization decision?

    This action does not impose additional requirements on the 
regulated community because the regulations being approved by this rule 
are already in effect in the State of South Dakota and are not changed 
by this action. This action merely approves the existing State 
regulations as meeting the Federal requirements and renders them 
federally enforceable.

D. Why is EPA using a direct final rule?

    The EPA is publishing this direct final rule without a prior 
proposed rule because we view this as a noncontroversial action and we 
anticipate no adverse comment. South Dakota received comments during 
its comment period when the rules and regulations in this document were 
being considered and were proposed at the State level. All comments 
were addressed at public hearing and/or reflected in the adopted 
regulations.

E. What happens if the EPA receives comments that oppose this action?

    If EPA receives comments that oppose this approval, the EPA will 
withdraw this direct final rule by publishing a document in the Federal 
Register before it becomes effective. The EPA will base any further 
decision on approval of the State Application after considering all 
comments received during the comment period. The EPA will then address 
all public comments in a later final rule. You may not have another 
opportunity to comment. If you want to comment on this approval, you 
must do so at this time.

F. For what has South Dakota previously been authorized?

    On May 15, 1995, the EPA finalized a rule approving the UST program 
that South Dakota proposed to administer in lieu of the Federal UST 
program. On May 15, 1995, EPA codified the approved South Dakota 
program that is subject to EPA's inspection and enforcement authorities 
under RCRA sections 9005 and 9006, 42 U.S.C. 6991d and 6991e, and other 
applicable statutory and regulatory provisions.

G. What changes is EPA authorizing with this action?

    In order to be approved, each State program application must meet 
the general requirements in 40 CFR 281.11, and specific requirements in 
40 CFR subparts B, C, and D. This also is true for proposed revisions 
to approved State programs.
    As more fully described below, the State has made the changes to 
its approved UST program to reflect the 2015 Federal Revisions. The EPA 
is approving the State's changes because they are equivalent to, 
consistent with, and no less stringent than the Federal UST program and 
because the EPA has confirmed that the South Dakota UST program will 
continue to provide for adequate enforcement of compliance as described 
in 40 CFR 281.11(b) and part 281, subpart D after this approval.
    The South Dakota Department of Agriculture and Natural Resources 
(Department) is the lead implementing agency for the UST program in 
South Dakota, except for (1) all lands located within formal Indian 
Reservations within or abutting the State of South Dakota, including 
the Cheyenne River Indian Reservation, Crow Creek Indian Reservation, 
Flandreau Indian Reservation, Lower Brule Indian Reservation, Pine 
Ridge Indian Reservation, Rosebud Indian Reservation, Sisseton Wahpeton 
Indian Reservation, Standing Rock Indian Reservation, Yankton Indian 
Reservation; (2) any land held in trust by the United States for an 
Indian Tribe; and (3) any other land, whether on or off a reservation 
that qualifies as ``Indian country'' within the meaning of 18 U.S.C. 
1151.
    The Department continues to have broad statutory authority to 
regulate the installation, operation, maintenance, and closure of USTs, 
as well as UST releases under South Dakota Codified

[[Page 42392]]

Laws (SDCL), Title 34A Environmental Protection, Chapter 2 Water 
Pollution Control, section 99 Underground Storage Tanks (2021) and 
selected provisions from SDCL sections 34A-12 Regulated Substance 
Discharges (2021), 34A-93 Implementation of and Compliance with Certain 
Federal Energy Acts (2009), and 34A-98 Underground Storage Tanks 
(2021). The South Dakota UST Program gets its enforcement authority 
from the powers of the Department found in SDCL sections 34A-12-3 
through 34A-12-12 and 34A-13-4. Under 34A-6-1.20, an employee or agent 
of the Department has the authority to enter and inspect any property 
premises or place where regulated substances are stored at any 
reasonable time. In the case of a release, SDCL provisions 34A-2-99(4) 
and 34A-13-4 provide employees or agents of the Department the 
authority to take such action is necessary, including the authority to 
enter any property, premises or place where an UST is located for 
inspection, in order to conduct sampling, and to have access to 
records. SDCL provision 34A-2-99(4) provides the Department with 
rulemaking authority for corrective action. Notice of violation may be 
issued, and penalties for noncompliance with South Dakota's UST Act may 
be assessed under SDCL section 34A-2-93. The State also includes 
requirements for delivery prohibitions in the event of noncompliance as 
described in the Administrative Rules of South Dakota (ARSD) section 
75:56:01:56.
    Specific authorities to regulate the installation, operation, 
maintenance, and closure of USTs, as well as UST releases, are found 
under SDCL 34A-2-99, in addition to the regulatory provisions of 
Administrative Rules of South Dakota (ARSD) Chapter 74:56:01 
Underground Storage Tanks, as amended effective April 19, 2021 and ARSD 
Chapter 74:56:02 Financial Responsibility, as amended effective April 
19, 2021. The aforementioned statutory and regulatory sections satisfy 
the requirements of 40 CFR 281.40 and 281.41.
    Through a Memorandum of Agreement between the State of South Dakota 
and the EPA, signed by the EPA Region 8 Regional Administrator October 
15, 2023, the State maintains procedures for receiving and ensuring 
proper consideration of information about violations submitted by the 
public. The State agrees to comply with public participation provisions 
contained in 40 CFR 281.42, including the provisions that the State 
will investigate and provide responses to citizen complaints and not 
oppose citizen intervention when permissive intervention is allowed by 
statute, rule, or regulation. South Dakota has met the public 
participation requirements found in 40 CFR 281.42.
    To qualify for final approval, revisions to a State's program must 
be ``equivalent to, consistent with, and no less stringent'' than the 
2015 Federal Revisions. In the 2015 Federal Revisions the EPA addressed 
UST systems deferred in the 1988 UST regulations, and added, among 
other things, new operation and maintenance requirements; secondary 
containment requirements for new and replaced tanks and piping; 
operator training requirements; and a requirement to ensure UST system 
compatibility before storing certain biofuel blends. In addition, the 
EPA removed past deferrals for emergency generator tanks, field 
constructed tanks, and airport hydrant systems. The EPA analyzes 
revisions to approved State programs pursuant to the criteria found in 
40 CFR 281.30 through 281.39.
    The Department has revised its regulations to help ensure that the 
State's UST program revisions are equivalent to, consistent with, and 
no less stringent than the 2015 Federal Revisions. In particular, the 
Department has amended the Administrative Rules of South Dakota to 
incorporate the revised requirements of 40 CFR part 280, including the 
requirements added by the 2015 Federal Revisions. The State, therefore, 
has ensured that the criteria found in 40 CFR 281.30 through 281.38 are 
met.
    Section 281.39 describes the State operator training requirements 
that must be met in order to be considered equivalent to, consistent 
with, and no less stringent than Federal requirements. South Dakota has 
promulgated and is implementing its own operator training provisions 
under Administrative Rules of South Dakota section 74:56:01:38:01. 
After a thorough review, the EPA has determined that South Dakota's 
operator training requirements are equivalent to, consistent with, and 
no less stringent than Federal requirements.
    As part of the State Application, the Attorney General of South 
Dakota certified that the laws of the State of South Dakota provide 
adequate authority to carry out the ``no less stringent'' technical 
requirements submitted by the State in order to meet the criteria in 40 
CFR 281.30 through 281.39. The EPA is relying on this certification in 
addition to the analysis submitted by the State in making our 
determination.
    For further information on the EPA's analysis of the State's 
application, see the chart in the Technical Support Document (TSD) 
contained in the docket for this rulemaking.

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

Broader in Scope Provisions
    Where an approved State program has a greater scope of coverage 
than required by Federal law, the additional coverage is not part of 
the federally approved program and are not federally enforceable (40 
CFR 281.12(a)(3)(ii)). South Dakota's State program does not include 
any regulatory requirements that are considered broader in coverage 
than the Federal program.
More Stringent Provisions
    Where an approved State program includes requirements that are 
considered more stringent than required by Federal law, the more 
stringent requirements become part of the federally approved program 
(40 CFR 281.12(a)(3)(i)).
    We consider the following State requirements to be more stringent 
than the Federal requirements:
Under Administrative Rules of South Dakota (ARSD) 74:56:01
    South Dakota does not adopt the extensive Energy Policy Act (EPAct) 
changes to Sec.  280.10(a), which subjects the listed types of tanks to 
different regulation under the Federal program based on the tank's 
installation date within the unnumbered paragraph following 
74:56:01:03(6). As a result, South Dakota subjects UST systems with 
field-constructed tanks to full regulation under the ``all owners or 
operators of an UST system'' language of 74:56:01:03 introductory 
paragraph and airport hydrant fuel distribution systems and tanks 
installed before the effective date of the rule [Sec.  
280.10(a)(1)(ii)] to all the requirements of chapter 74:56:01, making 
the State more stringent than Federal.
    South Dakota does not have an analog to Federal provision Sec.  
280.10(c) which allows many UST systems to be excluded from the 
regulations of Federal part 280. The absence of a State analog to this 
Federal provision results in more tanks being subject to full 
regulation, which is more stringent than Federal.
    At ARSD 74.56.01:11(3) South Dakota requires the submittal of plans 
and specifications of both new and upgraded systems for approval at 
least 30 days prior to installation for the State to determine 
installed or upgraded systems meet minimum requirements. This

[[Page 42393]]

additional State-only approval is more stringent than the Federal.
    Within the second unnumbered paragraph after 74:56:01:12(5) South 
Dakota requires an additional State-only notification in the event of 
any changes of information stated in a certification of compliance 
form. The additional notification requirement is more stringent than 
Federal, which does not include a similar notification.
    South Dakota does not have an analog to Federal provision Sec.  
280.43(h) which allows UST system owners and operators to use 
statistical inventory reconciliation as an alternative method to detect 
releases. The absence of a State analog to this Federal provision 
results in the State being more stringent as it does not allow for this 
alternative method to be used.
    At section 74:56:01:40(2) South Dakota does not adopt the 
exceptions to the reporting of suspected releases included in Federal 
Sec.  280.50(b)(1) through (3). As a result, South Dakota's regulations 
are more stringent than Federal because the State continues to require 
the reporting of releases in circumstances where, otherwise, under the 
Federal program, they would not be required to report.
    Within the introductory paragraph of section 74:56:01:47(3) South 
Dakota requires the preparation and submittal of a free product removal 
report within 30 days, unlike the 45-day requirement in the Federal 
provision at Sec.  280.64 introductory text. South Dakota's shorter 
timeline makes the State more stringent than Federal.

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

    South Dakota is not authorized to carry out its UST 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.
    Therefore, this program revision does not extend to Indian country 
where EPA will continue to implement and administer the UST program in 
these lands. See 40 CFR 281.12(a)(2).

II. Codification

A. What is codification?

    Codification is the process of placing a State's statutes and 
regulations that comprise the State's authorized UST program into the 
CFR. Section 9004(b) of RCRA, as amended, allows the EPA to approve 
State UST programs to operate in lieu of the Federal program. The EPA 
codifies its authorization of State programs in 40 CFR part 282 and 
incorporates by reference State regulations that the EPA will enforce 
under sections 9005 and 9006 of RCRA and any other applicable statutory 
provisions. The incorporation by reference of State authorized programs 
in the CFR should substantially enhance the public's ability to discern 
the current status of the approved State program and State requirements 
that can be federally enforced. This effort provides clear notice to 
the public of the scope of the approved program in each State.

B. What is the history of codification of South Dakota's UST program?

    EPA incorporated by reference South Dakota's then approved UST 
program effective May 15, 1995 (60 FR 14334; March 16, 1995). Through 
this action, the EPA is revising 40 CFR 282.91 to include the approval 
revision actions.

C. What codification decisions have we made in this rule?

    In this rule, we are finalizing the Federal regulatory text that 
incorporates by reference the federally authorized South Dakota UST 
Program. In accordance with the requirements of 1 CFR 51.5, we are 
finalizing the incorporation by reference of the South Dakota rules 
described in the amendments to 40 CFR part 282 set forth below. The EPA 
has made, and will continue to make, these documents generally 
available through https://www.regulations.gov and/or in hard copy at 
the EPA Region 8 office (see the ADDRESSES section of this preamble for 
more information).
    One purpose of this Federal Register document is to codify South 
Dakota's approved UST program. The codification reflects the State 
program that would be in effect at the time the EPA's approved 
revisions to the South Dakota UST program addressed in this direct 
final rule become final. If, however, the EPA receives substantive 
comment on the proposed rule, then this codification will not take 
effect, and the State rules that are approved after the EPA considers 
public comment will be codified instead. By codifying the approved 
South Dakota program and by amending the CFR, the public will more 
easily be able to discern the status of the federally approved 
requirements of the South Dakota program.
    The EPA is incorporating by reference the South Dakota approved UST 
program in 40 CFR 282.91. Section 282.91(d)(1)(i)(A) incorporates by 
reference for enforcement purposes the State's regulations. Section 
282.91 also references the Attorney General's Statement, Demonstration 
of Adequate Enforcement Procedures, the Program Description, and the 
Memorandum of Agreement, which are approved as part of the UST program 
under subtitle I of RCRA.

D. What is the effect of EPA's codification of the federally authorized 
State UST program on enforcement?

    The EPA retains the authority under sections 9003(h), 9005 and 9006 
of subtitle I of RCRA, 42 U.S.C. 6991b(h), 6991d and 6991e, and other 
applicable statutory and regulatory provisions to undertake corrective 
action, inspections, and enforcement actions, and to issue orders in 
approved States. If the EPA determines it will take such actions in 
South Dakota, the EPA will rely on Federal sanctions, Federal 
inspection authorities, and other Federal procedures rather than the 
State analogs. Therefore, though the EPA has approved the State 
procedures listed in 40 CFR 282.91(d)(1)(ii), the EPA is not 
incorporating by reference South Dakota's procedural and enforcement 
authorities.

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

    The public also needs to be aware that some provisions of the 
State's UST program are not part of the federally approved State 
program. Such provisions are not part of the RCRA subtitle I program 
because they are ``broader in coverage'' than subtitle I of RCRA. 
Section 281.12(a)(3)(ii) states that where an approved State program 
has provisions that are broader in coverage than the Federal program, 
those provisions are not a part of the federally approved program. As a 
result, State provisions which are ``broader in coverage'' than the 
Federal program are not incorporated by reference for purposes of 
enforcement in part 282. Section 282.91(d)(1)(iii) lists for reference 
and clarity the South Dakota statutory and regulatory provisions

[[Page 42394]]

which are ``broader in coverage'' than the Federal program and which 
are not, therefore, part of the approved program being codified. 
Provisions that are ``broader in coverage'' cannot be enforced by EPA; 
the State, however, will continue to implement and enforce such 
provisions under State law.

III. Statutory and Executive Order (E.O.) Reviews

    This action only applies to South Dakota's UST Program requirements 
pursuant to RCRA section 9004 and imposes no requirements other than 
those imposed by State law. It complies with applicable E.O.s and 
statutory provisions as follows:

A. Executive Order 12866 Regulatory Planning and Review, Executive 
Order 13563: Improving Regulation and Regulatory Review

    The Office of Management and Budget (OMB) has exempted this action 
from the requirements of Executive Order 12866 (58 FR 51735, Oct. 4, 
1993) and 13563 (76 FR 3821, Jan. 21, 2011). This action approves and 
codifies State requirements for the purpose of RCRA section 9004 and 
imposes no additional requirements beyond those imposed by State law. 
Therefore, this action is not subject to review by OMB.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 (82 FR 9339, February 
3, 2017) regulatory action because actions such as this final approval 
of South Dakota's revised underground storage tank program under RCRA 
are exempted under Executive Order 12866. 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.).

C. Unfunded Mandates Reform Act and Executive Order 13175: Consultation 
and Coordination With Indian Tribal Governments

    Because this action approves 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 (2 U.S.C. 1531-
1538). 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).

D. Executive Order 13132: Federalism

    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, Aug. 10, 1999), because it merely approves and codifies State 
requirements as part of the State RCRA Underground Storage Tank Program 
without altering the relationship or the distribution of power and 
responsibilities established by RCRA.

E. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    This action also is not subject to Executive Order 13045 (62 FR 
19885, Apr. 23, 1997), because it is not economically significant and 
it does not make decisions based on environmental health or safety 
risks.

F. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211 (66 FR 28355, May 
22, 2001) because it is not a ``significant regulatory action'' as 
defined under Executive Order 12866.

G. National Technology Transfer and Advancement Act

    Under RCRA section 9004(b), the EPA grants a State's application 
for approval as long as the State meets the criteria required by RCRA. 
It would thus be inconsistent with applicable law for the EPA, when it 
reviews a State approval 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.

H. Executive Order 12988: Civil Justice Reform

    As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this rule, the EPA has taken the 
necessary steps to eliminate drafting errors and ambiguity, minimize 
potential litigation, and provide a clear legal standard for affected 
conduct.

I. Executive Order 12630: Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    The EPA has complied with Executive Order 12630 (53 FR 8859, Mar. 
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.

J. Paperwork Reduction Act

    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.). ``Burden'' is defined at 5 CFR 1320.3(b).

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. Because this rule approves pre-
existing State rules which are at least equivalent to, consistent with, 
and no less stringent than existing Federal requirements, and imposes 
no additional requirements beyond those imposed by State law, and there 
are no anticipated significant adverse human health or environmental 
effects, the rule is not subject to Executive Order 12898.

L. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801-808, 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);

[[Page 42395]]

however, this action will be effective July 15, 2024 because it is a 
direct final rule.

    Authority: This rule is issued under the authority of sections 
2002(a), 7004(b), and 9004, 9005 and 9006 of the Solid Waste 
Disposal Act, as amended, 42 U.S.C. 6912(a), 6974(b), and 6991c, 
6991d, and 6991e.

List of Subjects in 40 CFR Parts 281 and 282

    Environmental protection, Administrative practice and procedure, 
Hazardous substances, Incorporation by reference, State program 
approval, Underground storage tanks.

    Dated: April 30, 2024.
KC Becker,
Regional Administrator, Region 8.

    For the reasons set forth in the preamble, EPA is amending 40 CFR 
part 282 as follows:

PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS

0
1. The authority citation for part 282 continues read as follows:

    Authority:  42 U.S.C. 6912, 6991c, 6991d, and 6991e.


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2. Revise Sec.  282.91 to read as follows:


Sec.  282.91  South Dakota State-Administered Program.

    (a) The State of South Dakota is approved to administer and enforce 
an underground storage tank program in lieu of the Federal program 
under subtitle I of the Resource Conservation and Recovery Act of 1976 
(RCRA), as amended, 42 U.S.C. 6991 et seq. The State's program, as 
administered by the South Dakota Department of Agriculture and Natural 
Resources (Department), was approved by EPA pursuant to 42 U.S.C. 6991c 
and part 281 of this chapter. On March 16, 1995, EPA published the 
notice of final determination approving the South Dakota underground 
storage tank base program effective May 15, 1995. A subsequent program 
revision application was approved by EPA and became effective on July 
15, 2024.
    (b) South Dakota has primary responsibility for administering and 
enforcing its federally approved underground storage tank program. 
However, EPA retains the authority to exercise its corrective action, 
inspection, and enforcement authorities under sections 9003(h), 9005, 
and 9006 of subtitle I of RCRA, 42 U.S.C. 6991b(h), 6991d and 6991e, as 
well as under any other applicable statutory and regulatory provisions.
    (c) To retain program approval, South Dakota must revise its 
approved program to adopt new changes to the Federal subtitle I program 
which make it more stringent, in accordance with section 9004 of RCRA, 
42 U.S.C. 6991c, and 40 CFR part 281, subpart E. If South Dakota 
obtains approval for the revised requirements pursuant to section 9004 
of RCRA, 42 U.S.C. 6991c, the newly approved statutory and regulatory 
provisions will be added to this subpart and notice of any change will 
be published in the Federal Register.
    (d) South Dakota has final approval for the following elements of 
its program application originally submitted to EPA and approved 
effective May 15, 1995, and the program revision application approved 
by EPA effective on July 15, 2024:
    (1) State statutes and regulations--(i) Incorporation by reference. 
The South Dakota provisions cited in this paragraph (d)(1)(i) are 
incorporated by reference as part of the underground storage tank 
program under subtitle I of RCRA, 42 U.S.C. 6991 et seq. The Director 
of the Federal Register approves this incorporation by reference in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain 
copies of the South Dakota statutes and regulations that are 
incorporated by reference in this paragraph (d)(1)(i) from South Dakota 
Legislative Research Council, 3rd Floor, State Capitol, 500 East 
Capitol Avenue, Pierre, South Dakota 57501-5070; Phone number: 605-773-
3251; email: [email protected]; website: https://sdlegislature.gov.
    (A) You may inspect all approved material at EPA Region 8, 1595 
Wynkoop Street, Denver, Colorado 80202, phone number 303-312-6633, or 
the National Archives and Records Administration (NARA). For 
information on the availability of the material at NARA, call 202-741-
6030 or go to https://www.archives.gov/federal-register/cfr/ibr-locations.
    (B) EPA-Approved South Dakota Statutory and Regulatory Requirements 
Applicable to the Underground Storage Tank Program, dated June 2022.
    (ii) Legal basis. EPA evaluated the following statutes and 
regulations which provide the legal basis for the State's 
implementation of the underground storage tank program, but they are 
not being incorporated by reference and do not replace Federal 
authorities:
    (A) The statutory provisions include:
    (1) South Dakota Codified Laws (2021), Title 34A Environmental 
Protection, Chapter 2 Water Pollution Control: Sections 98 Underground 
Storage Tanks--Definitions and 99 Underground Storage Tanks--
Promulgation of rules--Violation.
    (2) South Dakota Codified Laws (2011), Title 34A Environmental 
Protection, Chapter 6 Solid Waste Management: selected sections.
    (3) South Dakota Codified Laws (2021), Title 34A Environmental 
Protection, Chapter 10 Remedies for Protection of Environment: Sections 
1 through 17.
    (4) South Dakota Codified Laws (2021), Title 34A Environmental 
Protection, Chapter 12 Regulated Substance Discharges: Sections 1 
through 16.
    (5) South Dakota Codified Laws (2021), Title 34A Environmental 
Protection, Chapter 13 Petroleum Inspection and Release Compensation: 
Sections 1, 4, 5, and 20.
    (6) South Dakota Codified Laws (2021), Title 34A Environmental 
Protection, Chapter 17 Uniform Environmental Covenants Act: Sections 1 
through 14.
    (7) South Dakota Codified Laws (2009), Title 34A Environmental 
Protection, Chapter 93 Implementation of and Compliance with Certain 
Federal Energy Acts: Sections 1 through 8.
    (8) South Dakota Codified Laws (2021), Title 1 State Affairs and 
Government, Chapter 50 State Emergency Response Commission: Sections 1 
through 11.
    (9) South Dakota Codified Laws (1969), Title 15 Civil Procedure, 
Chapter 6 Rules of Procedure in Circuit Courts: Section 24(a) 
Intervention of Right.
    (B) The regulatory provisions include:
    (1) Administrative Rules of South Dakota (April 19, 2021), Title 74 
Department of Agriculture and Natural Resources, Article 74:56 Storage 
facilities--remediation: Chapter 74:56:01 Underground Storage Tanks, 
Section 74:56:01:56 Failure to comply.
    (2) [Reserved]
    (iii) Provisions not incorporated by reference. None of the 
identified statutes and rules applicable to the South Dakota 
underground storage tank program are broader in coverage than the 
Federal program; therefore, all provisions are incorporated by 
reference.
    (2) Statement of legal authority. The Attorney General's 
Certification, signed by the Attorney General for the State of South 
Dakota on September 2, 2022, though not incorporated by reference, is 
referenced as part of the approved underground storage tank program 
under subtitle I of RCRA, 42 U.S.C. 6991 et seq.
    (3) Demonstration of procedures for adequate enforcement. The 
``Demonstration of Procedures for

[[Page 42396]]

Adequate Enforcement'' submitted as part of the final program 
application on October 24, 2023, though not incorporated by reference, 
is referenced as part of the approved underground storage tank program 
under subtitle I of RCRA, 42 U.S.C. 6991 et seq.
    (4) Program description. The program description and any other 
material submitted as part of the final program revision application on 
October 24, 2023, though not incorporated by reference, are referenced 
as part of the approved underground storage tank program under subtitle 
I of RCRA, 42 U.S.C. 6991 et seq.
    (5) Memorandum of Agreement. The Memorandum of Agreement between 
EPA Region 8 and the South Dakota Department of Agriculture and Natural 
Resources, signed by the EPA Regional Administrator on October 15, 
2023, though not incorporated by reference, is referenced as part of 
the approved underground storage tank program under subtitle I of RCRA, 
42 U.S.C. 6991 et seq.

0
3. Amend appendix A to part 282 by revising the entry for ``South 
Dakota'' to read as follows:

Appendix A to Part 282--State Requirements Incorporated by Reference in 
Part 282 of the Code of Federal Regulations

* * * * *

South Dakota

    (a) The statutory provisions include:
    (1) South Dakota Codified Laws (2021), Title 34A Environmental 
Protection, Chapter 2 Water Pollution Control: Section 98 
Underground Storage Tanks: section 34A-2-98(5) Definition 
``underground storage tank.''
    (2) [Reserved]
    (b) The regulatory provisions include:
    (1) Administrative Rules of South Dakota (April 19, 2021), Title 
74 Department of Agriculture and Natural Resources, Article 56 
Storage facilities--remediation:
    Chapter 74:56:01 Underground Storage Tanks:
    Sections 74:56:01:01 Definitions; 74:56:01:02 Underground 
storage tank defined; 74:56:01:03 Applicability; 74:56:01:04 
Performance standards for new UST systems--General requirements; 
74:56:01:05 Performance standards for new UST systems--Tanks; 
74:56:01:06 Performance standards for new UST systems--Piping; 
74:56:01:07 Performance standards for new UST systems--Spill and 
overfill protection; 74:56:01:08 Performance standards for new UST 
systems--Installation requirements and submission of proof of 
compliance with requirements; 74:56:01:09 Upgrading of existing UST 
systems--General requirements and deadlines; 74:56:01:10 Upgrading 
of existing USTs--Specific requirements; 74:56:01:10.01 Replacement 
of existing UST systems--Tanks; 74:56:01:10.02 Replacement of 
existing UST systems--Piping; 74:56:01:10.03 Installation of under-
dispenser sumps; 74:56:01:11 Notification requirements for UST 
systems; 74:56:01:12 Completion of certification of compliance form 
for UST systems; 74:56:01:13 Spill and overfill control; 74:56:01:14 
Operation and maintenance of cathodic protection; 74:56:01:15 
Operation and maintenance of cathodic protection--Criteria for 
taking tests; 74:56:01:16 Operation and maintenance of cathodic 
protection--Recordkeeping; 74:56:01:17 Compatibility; 74:56:01:18 
Repairs allowed--General requirements; 74:56:01:19 Repairs allowed--
Lining; 74:56:01:20 Repairs allowed--Fiberglass-reinforced plastic 
tank systems; 74:56:01:21 Repairs allowed--Piping; 74:56:01:22 
Repairs allowed--Recordkeeping; 74:56:01:23 Maintenance and 
availability of records; 74:56:01:23.01 Periodic testing of spill 
prevention equipment and containment sumps--General requirements; 
74:56:01:23.02 Periodic operation and maintenance walkthrough 
inspections; 74:56:01:24 Release detection for all UST systems--
General requirements and deadlines; 74:56:01:25 Release detection 
requirements for regulated substance UST systems--Excluding 
hazardous substances; 74:56:01:26 Release detection requirements--
Tank tightness testing and inventory reconciliation; 74:56:01:27 
Release detection requirements--Vapor monitoring; 74:56:01:28 
Release detection requirements--Groundwater monitoring; 74:56:01:29 
Release detection requirements--Automatic tank monitoring; 
74:56:01:30 Release detection requirements--Secondary containment 
with interstitial monitoring; 74:56:01:31 Release detection 
requirements--Manual tank monitoring; 74:56:01:32 Release detection 
requirements--Hazardous substance UST systems; 74:56:01:33 Release 
detection requirements--Other; 74:56:01:34 Release detection 
requirements for pressure piping; 74:56:01:35 Release detection 
requirements for suction piping; 74:56:01:36 Release detection 
requirements for piping--Regulated hazardous substances; 74:56:01:38 
Recordkeeping; 74:56:01:38.01 Training of owners and operators; 
74:56:01:40 Reporting of suspected releases; 74:56:01:41 Reporting 
of spills and overfills; 74:56:01:42 Release investigation and 
confirmation; 74:56:01:43 Off-site impacts and source investigation; 
74:56:01:44 General requirements for corrective action for releases 
from UST systems; 74:56:01:45 Initial abatement requirements and 
procedures for releases from UST systems; 74:56:01:46 Additional 
abatement requirements for hazardous substances; 74:56:01:47 Free 
product removal; 74:56:01:48 Additional site investigation for 
releases from UST systems; 74:56:01:49 Soil and groundwater cleanup 
for releases from UST systems; 74:56:01:51 Reporting of hazardous 
substance releases from UST systems; 74:56:01:52 Temporary removal 
from use; 74:56:01:53 Temporary closure; 74:56:01:54 Permanent 
closure; 74:56:01:55 Postclosure requirements; and 74:56:01:57 Field 
constructed tanks/airport hydrant systems.
    Chapter 74:56:02 Financial responsibility:
    Sections 74:56:02:01 Applicability; 74:56:02:02 Definitions; and 
74:56:02:03 Financial responsibility and lender liability rules.
    (2) [Reserved]
    (c) Copies of the South Dakota statutes and regulations that are 
incorporated by reference are available from the South Dakota 
Legislative Research Council, 3rd Floor, State Capitol, 500 East 
Capitol Avenue, Pierre, South Dakota 57501-5070; Phone number: 605-
773-3251; email: [email protected]; website: https://sdlegislature.gov.

[FR Doc. 2024-10367 Filed 5-14-24; 8:45 am]
BILLING CODE 6560-50-P