[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]]

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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.

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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: <a href="/cdn-cgi/l/email-protection#34585d5a1a595b4d51745144551a535b42"><span class="__cf_email__" data-cfemail="cca0a5a2e2a1a3b5a98ca9bcade2aba3ba">[email protected]</span></a>.
    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: 
<a href="/cdn-cgi/l/email-protection#a0ccc9ce8ecdcfd9c5e0c5d0c18ec7cfd6"><span class="__cf_email__" data-cfemail="610d080f4f0c0e1804210411004f060e17">[email protected]</span></a>.

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:
    <bullet> Conduct inspections and require monitoring, tests, 
analyses, or reports;
    <bullet> Enforce RCRA requirements; suspend or revoke permits; and
    <bullet> 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: <a href="/cdn-cgi/l/email-protection#4422366a2d2a37342127302d2b2a042a2536256a232b32"><span class="__cf_email__" data-cfemail="badcc894d3d4c9cadfd9ced3d5d4fad4dbc8db94ddd5cc">[email protected]</span></a>, 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


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