# Program Description

South Dakota Department of Environment and Natural Resources

Hazardous Waste Program

March 20102 Table of Contents

Page

SECTION I. INTRODUCTION

................................ ................................ ........................ 5

SECTION II. PROGRAM SCOPE, STRUCTURE, COVERAGE, AND PROCESSES

... 7

A. Scope and Coverage of Program Revision

................................ ...................... 7

1. Program overview

......................................................................... 7

2. Identification of rules/checklists for which state is seeking authorization

... 7

B. Comparison of Federal and State Regulations

................................ ................ 8

1. Equivalency

................................ ................................ ............................... 8

2. Areas the state program differs from federal

................................ ............. 8

Table 1

... ....................................................................................... ... . 10

SECTION III. STATE AGENCY RESPONSIBILITIES

................................ ................. 11

A. Organization and Structure of the Hazardous Waste Program

.................... 11

1. Identification of s tate agency responsible for adm inistering program

...... 11

2. Structure of s tate agency

................................ ................................ ......... 11

a. Divisions, program areas and subunits within the agency

............ 11

b. Division of responsibilities among s tate agencies

......................... 11

B. Division of Responsibility Between the State and EPA

................................ 12

SECTION IV. STAFFING AN D FUNDING RESOURCES

................................ ............ 1 3

A. Description of Staffing of Agency

................................ ................................ .. 13

1. Number of staff

................................ ................................ ........................ 13

2. Occupations

................................ ................................ ............................. 13

3. General duties

................................ ................................ ......................... 13

B. Overall Changes in Existing Resources for Previously Authorized Program

1. Changes in staffing, internal reorganizations, and sh ifts in priorities

....... 14

2. Changes in size of the regulated community since previous authorization 14

3. Program changes that have significant impact on State’s efficiency and existing program resources

................................ ............................... 15

C. Itemization of Estimated Costs and Sources of Fun ding for Revision

........ 17

1. Personnel

................................ ................................ ................................ . 17

2. Funding

................................ ................................ ................................ .... 17

a. Estimated program and technical support costs

........................... 17

b. Sources and amounts of available funding

................................ ... 18

SECTION V. STATE PROCEDURES, PERMITTING PROGRAM AND

COORDINATION WITH OTHER AGENCIES AND PERMITTING

....... 19

A. Regulatory Development

................................ ................................ ................. 20

B. Notification

................................ ................................ ................................ ........ 20

C. Manifest Tracking System

................................ ................................ ............... 2 1

D. Coordination of Information Regarding Interstate and International Shipments

................................ ................................ ................... 2 13

E. Permitting

................................ ................................ ................................ .......... 2 1

1. Permit application

................................ ................................ .................... 22

2. Permit application review process

................................ ........................... 2 2

3. Addr essing p ermit application deficiencies

................................ .............. 23

4. Draft permit and public notice

................................ ................................ .. 24

5. Public participation and permit issuance

................................ .................. 24

6. Permit modification, renewal, revocation and reissuance,

and termination

................................ ................................ ........................ 24

7. Interaction with enforcement personnel

................................ ................... 26

8. Ro utine review of facility operation

................................ .......................... 2 6

9. R eports and information req uired by the state

................................ ......... 27

10. Other types of permits

................................ ................................ ............. 27

11. Joint permitting

................................ ................................ ........................ 27

F. Interim Status

................................ ................................ ................................ .... 28

G. Biennial Reports

................................ ................................ ............................... 28

H. General Inspections and Enforcement Actions

................................ ............. 28

I. Groundwater Mon itoring Inspections

................................ ............................. 32

J. Waste Minimization and Pollution Prevention

................................ .............. 3 2

K. Availability of Information

................................ ................................ ................ 33

L. Appeals

................................ ................................ ................................ .............. 34

SECTION VI. COMPLIANCE TRACKING AND ENFORCEMENT

.............................. 3 5

A. Identification of Members of the Regulated Community

............................... 3 5

1. Identification of r

evisions that have the potential to significantly increase

the size of the RCRA universe

................................ ................................ . 3 5

2. Strategies and methods for identifying new members of the regulated community

................................ ................................ ............... 3 5

B. Inspections and Analysis Workload

................................ ............................... 3 7

1. Types of inspections needed to moni tor compliance with new program activities

................................ ................................ ..................... 3 7

2. Additional sampling and analysis needed to monitor compliance with new program activities

................................ ................................ ...... 3 7

3. Impact on compliance monitoring of existing program

............................. 3 8

C. Data Management

................................ ................................ ............................. 3 8

D. Compliance Monitoring Resourc es

................................ ................................ 3 8

1. Resource adjustments for new program activities

............................... 3 8

a. Increased technical expertise

................................ ........................ 3 8

b. Additional laboratory support

................................ ........................ 3 9

2. R esources that the State has available to handle new responsibilities

................................ ................................ .................. 39

a. Plans for training staff

................................ ................................ ... 39

b. Pla ns for hiring additional staff

................................ ...................... 39

c. Agreements with other State agencies

................................ ......... 4 0

d. State plans to use contractor assistance

................................ ...... 4 0

E. Enforcement Process

................................ ................................ ....................... 4 1

1. Enforcement procedures

................................ ................................ ........ 4 1

2. Enforcement of c orrective a ction c onditions

....................................... 4 2

3. Penalties a nd violations

................................ ................................ ........... 4 24 4. Time frames for enforcement actions

................................ ...................... 4 2

5. Enforcement resources

................................ ................................ ............ 4 3

6. Enforcement agreements

.......... . ... .. ............................................... 4 3

SECTION VII. ESTIMATED REGULATED ACTIVITIES

................................ .............. 4 4

Table 2

................................ ................................ ................................ ............... 4 4

SECTION VIII. STATE FORMS

................................ ................................ .................... 4 5

1. Regulated waste activi ty notification

..................... . ..........................4 7

2. Part A permit application

.................................... . ...........................48

3. Biennial Repor

t................................................

. ...........................49

4. Uniform hazardous waste manifest (example)

. ...................................50

5. Hazardous waste pre

- inspection report format

. ............................... ...51

6. N otice of Inspection form.

............................. . .................................52

7. RCRAInfo compliance evaluation form

............. . ................................53

8. Hazardous waste inspection report format

...... . ..................................54

9. DENR penalty policy guidance and worksheet

... . ................................55

SECTION IX. APPENDI X A

- D ENR Organizational Chart

................................ ........ 5 65 

### SECTION I

INTRODUCTION

The Resource Conservation and Recovery Act (RCRA) and the Hazardous and Solid Waste Amendments (HSWA) to RCRA gave authority to the Environmental Protection Agency (EPA) to promulgate regulation s that “...promote the protection of health and the environment and to conserve valuable material and energy resources (RCRA Section 1003 (a)).” One of the objectives identified under RCRA is to “establish a viable

Federal

- State partnership.... [and] give a h igh priority to assist and cooperate with States in obtaining full authorization of State programs under subtitle C (RCRA 1003 (a)(7)).” The following Program Description (PD) is part of the application process to assure EPA that South Dakota is capable o f managing hazardous wastes under our state program in lieu of EPA’s program, and thus facilitate reauthorization

.

The South Dakota Department of Environment and Natural Resources (DENR) is the agency responsible for administering all solid and hazardous waste regulations for the State of South Dakota. This document provides a description of the hazardous waste regulatory program administered by DENR . It replaces

the September 199 5 Program Description (PD) previously submitted as a part of

the State's r evision applications.

This PD reflects the evolution of the State's program since EPA authorized the base program

, as well as subsequent revision authorizations. It also

summarizes how the State implements Federal regulatory requirements for the base pro gram

, as well as HSWA and Non

- HSWA Clusters I through X VII. This

PD has been prepared in accordance with the requirements of Title 40 Code of Federal Regulations (40 CFR), part 271 section 6

.

The report is organized as follows:

Following Section I

– Introduction, Section II describes the scope, structure, coverage, and process of the hazardous waste program . It includes a discussion of the legislative and regulatory provisions the state administers as well as a

discussion of the differences between t he federal a nd state laws and regulations.

Attachment 3 of the Attorney General’s Statement (submitted Jun 2009) includes

c hecklists to provide information on both HSWA and non

- HSWA activities, identifying program areas for which the state is seeking autho rization. Section III provides a description of DENR ’s structural divisions, with the aid of an organizational chart included in Appendix A . Th at section also discusses specific

divisions that comprise DENR

, examines their individual responsibilities , a nd

includes a d escription of the responsibilities and procedures for coordin a tin g among various programs and EPA.

Section IV deals with staffing and funding procedures and identifies hazardous waste staff and funding resources required to carry out acti vities that are the subject of this6

program revision. Section V describes the state procedures that will be used to implement the program revision. Section VI examines the state’s compliance tracking and enforcement processes and resources. Section VII provides estimated regulated

activities as of the date of this PD , and Section VIII contains copies of state forms

. Section IX contains other attachments, pertinent to the subject matters discussed in the body of the document.

It is important to realize while reading this PD

, that the information provided here in reflects South Dakota’s program as currently authorized and outlines updated elements for which the state is seeking authorization. This PD offers the most up

- to

- date information on the state’s

h azardous waste section; yet it offers a view that is a snap

- shot in time. Program information that has already been auth orized will, as a necessity

, be discussed here because it is an integral part of how the state implements its statutes and rules. Emph asis is placed on that information for which the state is seeking authorization, which is specified in Section II.A.2.7 

### SECTION II

PROGRAM SCOPE, STRUCTURE, COVERAGE, AND PROCESSES (40 CFR 271.6(a))

A. Scope and Coverage of Program Revision

1. Program ov

erview

Under South Dakota Codified Law (SDCL) 34A

- 11

- 1, the statute states: “it is the public policy of this state to regulate the control and generation, transportation, treatment, storage and disposal of hazardous wastes to protect the public health, s afety and welfare, protect the environment, prevent pollution of air, water, soil and other natural resources of this state, and prevent the creation of nuisances.” To implement and enhance this public policy DENR has developed a comprehensive regulatory program of hazardous waste management that includes all aspects of generation, transportation, storage, treatment, and disposal of hazardous waste. The program encompasses the necessary requirements to control the management of hazardous waste from the po int of generation to final disposal. Our p rogram regulates entities who generate, transport, store, treat and dispose of all hazardous wastes identified in 40 CFR 261, as codified up to July 1, 200 8 . SDCL Sections 1

- 40

- 4.1 and 34A

- 11

- 1.1 specify that the state hazardous waste regulations must be no more stringent than corresponding EPA hazardous waste regu lations; it is for this reason the state adopts the federal hazardous waste rules by

reference.

To date, t he state has amended its hazardous waste rule s to include all final regulations promulgated by EPA as of July 1, 200 8 , including regulations promulgated under the authority of HSWA. These rules are
identical, with the exception of two instance s identified below (see Section II.B.2), to the EPA regul ations found in 40 CFR

, Parts 260 through 27 9

. Portions of 40 CFR 124 are adopted by reference as of July 1, 1998; however, other portions of 40 CFR 124 are part of the state’s Memorandum of Agreement rather than being adopted by reference as part of our state rules.

2. Identification of exact rules/clusters for which the state is seeking

authorization

South Dakota received final authorization for its base program on November 2, 1984, at 1:00 p

. m

. ; to regulate the management of

hazardous waste in acco rdance with regulations promulgated by EPA as of July 1, 1984. Subsequent authorizations were granted on April 17, 1991, effective June 17, 1991; September 8, 1993, effective November 8, 1993; January 10, 1994, effective March 11, 1994; July 24, 1996, eff ective8 September 23, 1996; May 9, 2000 , effective Ju ne 8 , 2000 , April 23, 2004, effective May 24, 2004; and March 8, 2006, effective March 8, 2006.

At this time

, the state seek s authorization for those regulations codified through July 1, 2007 ; as repres ented by the following rule clusters and

checklists: non

- HSWA Cluster XI V, checklist s 203, 204, and 205 ; HSWA

Cluster XV, checklist 206; HSWA/non

- H SWA Cluster XV, checklists 207, 208, and ; non

- HSWA Cluster XVI, checklists 209, 210

, and 211;

HSWA/non

- HSWA Cluster XVI, checklists 212 and 213; HSWA/non

HSWA Cluster XVII, checklist 214, and HSWA Cluster XVII, checklist 215. Copies of each of the referenced checklists are included in the Attorney General’s Statement ( see A ttachment 3 of the Attorney General’s

Statement ).

The state of South Dakota adopts the federal hazardous waste regulations by reference. B y adopting these regulations, the state incorporat es the federal requirements listed in the clusters and checklists

above into the state rules. As will b e explained in detail under Section II.B and Sections V and VI of this PD, implementation of the state’s hazardous waste statutes and rules ensures overall equivalency to the Federal

program.

B. Comparison of Federal and State Regulations

1. Equivalency

South Dakota, through its statutes and regulations, has maintained a program equivalent to EPA’s hazardous waste program since 1984.

SDCL 34A

- 11 gives DENR the authority to promulgate hazardous waste rules. According to SDCL 34A

- 11

- 1.1, South Dakota’s h azardous waste rules cannot be more stringent than EPA’s regulations. Conversely

, RCRA Section 3009 states “...no State...may impose any requirements less stringent than those authorized under this subt itle.” As a result, the state adopts the federal hazardou s waste regulations by reference.

These rules are found under the Administrative Rules of South Dakota (ARSD ) Chapter 74:28, revised as of October 200 8 . A copy of the state ’s

hazardous waste statutes and rules are attached (see A ttachment 4 of the

Attor ney General’s Statement ).

2. Areas the state program differs from the federal program

SDCL 34A

- 11

- 1.1 states: “Any rule adopted pursuant to this chapter may not be more stringent than those promulgated by the U.S. Environmental Protection Agency under aut hority of national laws governing the control of hazardous wastes except that the B oard of M inerals and E nvironment shall promulgate rules for the treatment, storage and disposal of polychlorinated biphenyls.” Accordingly, the state has adopted by9 referen ce not only the federal hazardous waste regulations, but a portion of the federal rules that govern the treatment, storage and disposal of PCBs. Also, SDCL 34A

- 11

- 12 states: “ Any permit granted by the board under this section is initially valid for two y ears from the date of issuance and may be renewed for periods of five years.”

As indicated above, South Dakota has adopted EPA’s regulations governing the management of hazardous waste by reference with the exception of some procedural or optional regula tions that are found in 40 CFR 124. Specific sections adopted by reference include 40 CFR 124.1(b), 124.2(a), 124.3(a), 124.5(a), 124.5(c), 124.6(a), (b) and (d), 124.11, 124.31(b), (c) and (d), 124.32(b) and (c) and 124.33(b) through (f) , and 124.200 to 124.214, inclusive (all July 1, 2008 ). The procedural or optional requirements of 40 CFR 124 are addressed in the Memorandum of Agreement and the Attorney General’s Statement, both of which are part of this revision authorization package.

As a result of items II.B.1 and II.B.2 discussed above, South Dakota’s

hazardous waste rules are considered both equivalent to, and no less stringent than

, the federal regulations.10 Table 1

General Corre lation Between State Regulations

and Federal Regulations

EPA REGULATION

Code of Federal Regulations ( 40 CFR)

Revised as of July 1, 2007 STATE

REGULATION DESCRIPTION

PART 260 ARSD 74:28:21:01 Hazardous w aste m anagement s ystem:
General

PART 261 ARSD 74:28:22:01 Identification and l isting of h azardous w aste

PART 262 ARSD 74:28:23:01 Standards a pplicable to g enerators of

h azardous w aste

PART 263 ARSD 74:28:24:01 Standards a pplicable to t ransporters of

h azardous w aste

PART 264 ARSD 74:28:25:01 Standards for o wners and o perators of

h azardous w aste t reatment, s torage, and

d isposal f acilities

PART 265 ARSD 74:28:28:01 Interim s tatus s tandards for o wners and

o perators of h azardous w aste t reatment,

s torage, and d isposal f acilities

PART 266 ARSD 74:28:27:01 Standards for the m anagement o f s pecific

h azardous w astes and s pecific t ypes of

h azardous w aste m anagement f acilities

PART 267 ARSD 74:28:25:01 Standards for o wners and o perators of

h azardous w aste f acilities o perating u nder a

s tandardized p ermit

PART 268 ARSD 74:28:30:01 Lan d d isposal r estrictions

PARTS 270/124 ARSD 74:28:26:01 The Hazardous Waste Permit Program

PART 273 ARSD 74:28:33:01 Standards for u niversal w aste m anagement

PART 279 ARSD 74:28:27:01 Standards for the m anagement of u sed o il11 

### SECTION III

S TATE AGENCY RESPONSIBILITIES

(40 CFR 271.6(b))

A. Organization and Structure of the Hazardous Waste Program

1. Identification of state agency responsible for administering program

DENR is the lead agency responsible for administering the state’s

h azardous w aste m anagement p rogram. This department conducts hazardous waste generator and permitted hazardous waste facility inspections (note: other than one permitted hazardous waste storage facility, no other permitted hazardous waste facilities currently exis t in the state). DENR also conducts sampling inspections, takes necessary enforcement actions to ensure regulated entities comply with state statutes and regulations, and reviews permit applications. The South Dakota Board of Minerals and Environment (BME ) issues hazardous waste permits with recommendations from DENR program staff

. BME is a

citizens ’ board within DENR, comprised of members appointed by the Governor, that performs quasi

- legislative, quasi

- judicial, advisory and special budgetary functions relating to the management of hazardous

waste in South Dakota.

The DENR , known as the Department of Water a nd Natural Resources up

to 1991 , has been and is currently the agency responsible for administering the previously authorized hazardous waste pro gram. DENR is also responsible for administering program revisions.

2. Structure of state agency

a. Divisions, program areas

, and subunits within the agency

DENR is responsible for the regulation of all aspects of hazardous waste generation, transportatio n, treatment, storage

, and disposal that occurs in this state. In particular, the Division of Environmental Services’ Waste Management Program within DENR is responsible for carrying out all hazardous waste regulatory activities. Appendix

A of this PD i ncludes a copy of DENR ’s organizational chart.

b

. Division of responsibilities among state agencies

– assistance by

the state Highway Patrol regarding the transportation of hazardous

waste

The South Dakota Highway Patrol has adopted the federal Departme nt of Transportation regulations for the transport of12 hazardous materials, of which hazardous waste is a subset. Presently, the Highway Patrol has four permanent ports of entry and eight mobile units. Trucks are checked at these locations. In

addition t o reviewing driver’s logs, highway patrol officers inspect the material being transported against manifests and other shipping documents. Other aspects such as vehicle placards are also inspected. In this way, the South Dakota Highway Patrol enforces

reg ulation s for hazardous waste transportation across the state’s road and highway system s, while DENR regulates all other aspects of hazardous waste management and transportation.

B. Division of Responsibility Between the State and EPA

At the time of this wri ting, DENR has adopted the federal hazardous waste regulations by reference through July 1, 2008 , for those regulations found in 40 CFR Parts 260 through 279. To date, the state has received authorization from

EPA for state rules that adopt fe deral regula tions revised through June 30, 200 3.

EPA retains

, under federal authority to enforce in South Dakota , the federal rules finalized July 1, 2004 and thereafter. This will hold true until authorization is granted. However, because the state has adopted th e federal requirements codified from July 1, 2004 through June 30, 2008, in accordance with state law, South Dakota retains the authority to enforce these rules

.

With this application, the state provide s EPA with the assurance that th e state’s program i s equivalent to EPA’s. Upon reauthorization ; the state will be given EPA’s authority to enforce state hazardous waste rules in lieu of EPA within the boundaries of the state (excepting areas under Tribal jurisdiction).

Joint permitting and joint inspect ions may still be conducted due to the ever changing regulations. EPA will retain its responsibility to ensure “full and faithful” execution of RCRA/HSWA, including direct implementation in the event the state is unable to take action. Joint inspections may be conducted when the state has not yet adopted certain requirements; and EPA may enforce those regulations ( such as HSWA provisions) in the state. This joint inspection/enforcement process has been implemented previously and work s well. Once the sta te receives authorization, EPA will assume an oversight role for those provisions

the state is authorized to enforce. More discussions regarding procedures are addressed in the MOA and in the procedures section (Section V) of this PD

.13 

### SECTION IV

STAFFING AND FUNDING RESOURCES (40 CFR 271.6(b)(1)

- (3))

A. Descri ption of Staffing of Agency

1. Number of staff

A total of eight and one

- half full time equivalent (FTE) employees work in the hazardous waste program. Four of the eight are full

- time hazardo us waste program e m pl oyees; the rest of the staff are made up of support people who assist with hazardous waste programs duties. These individuals include those who provide secretarial, administrative

, managerial, peer review

, and legal assistance.

2. Occup ations

DENR ’s hazardous waste program employees have technical expertise and educational backgrounds in the areas of engineering, hydrology, chemistry, and biological sciences. Engineers in the program are responsible for permitting hazardous waste faci lities

, conducting inspections

, and providing companies with pollution prevention/waste minimization options. The hydrologist reviews geologic and groundwater information relating to site contamination as well as some permitting

considerations. The chemi st and biological scientists conduct inspections, review product information and waste analyses to assist companies with waste determinations and waste minimization opportunities.

3. General duties

Three of the four full

- time hazardous waste program person nel are responsible for conducting hazardous waste inspections. In addition, one engineering personnel are primary in carrying out permitting responsibilities, which includes reviewing annual waste analyses, financial assurance and permit modifications. The other engineer ing position is

also responsible for managing the program’s hazardous waste database

and integrating that data into DENR ’s environmental data system

, as well as maintaining DENR ’s system. The program’s staff person who has

technical and educational expertise in chemistry and biological sciences also is the primary contact for reviewing waste analyses and product information. Working as a team, all three individuals offer companies options for minimizing waste and considering product subs titutions to

reduce the amount or toxicity of their hazardous waste s . The fourth full

time program employee is responsible for work

- directing the three inspectors, reviewing inspection reports, assessing and compiling enforcement actions, conducting enfor cement and penalty negotiations

,14 preparing program policy documents, preparing the hazardous waste

section of DENR ’s EPA/State Performance Partnership Agreement, tracking program accomplishments to ensure program commitments are met, preparing hazardous wa ste rule updates and program authorization packages, and conducting some compliance evaluation and compliance assistance inspections.

Other p ersonnel assisting with hazardous waste program duties include representatives of the Attorney General’s Office, d epartment upper management staff, the hydrologist with DENR ’s solid waste program, and

administrative assistants responsible for in coming and outgoing mailings, phone calls, and document filing s

. The state Attorney General’s Office provides an Assistant A ttorney General to review hazardous waste enforcement actions, consult regarding case

- specific legal issues, review program authorization document s, and provide t he Attorney General

Statement. DENR upper management provides general program

direction in ad dition to conduct ing reviews and final approval of all formal enforcement actions, policy documents, and Performance Partnership Agreements.

B. Overall Changes in Existing Resources for Previously Authorized Program

1. Changes in staffing, internal reorganizat ions, and shifts in priorities

Since submitting the previous PD , the state increased the number of

hazardous waste FTE from eight

, to eight and one

- half. In addition, the state eliminated the formal designation of “Regional Offices”, that were located in Sioux Falls, Rapid City and Watertown. Although some DENR personnel continue to live in those areas and work out of local offices,

th ose individuals are no longer supervised by a Regional Office
Administrator, but rather are supervised directly by the re sponsible Program Administrator in Pierre . Elimination of the Regional Office designation facilitate s consistency within each DENR program. With the exception of one engineer and one administrative staff located in Rapid City, the state’s hazardous waste program staff are located in Pierre

.

2. Changes in size of the regulated community since previous authorization

Permitted facilities: Since the latest submission of the PD

, the number of permitted hazardous waste facilities in South Dakota has decrease d from

three to one. The two closed facili ties a re both associated with Ellsworth Air Force Base, Ellsworth, SD. One was a permitted hazardous waste storage facility that had been in existence since 1984; the second was a permitted storage area that had not been constructed. Because Ellsworth AFB determined they could manage their hazardous wastes under the 90

- day L arge Q uantity G enerator (LQG) requirements, the y clean closed the existing facility and terminated the permit for the yet

- to

- be

- constructed

f acility. T he single permitted hazardous waste facility remaining in the15 state is a commercial storage facility owned and operated by Safety

- Kleen Systems, Inc. Safety

- Kleen’s permitted Service Center is located in Sioux Falls, SD.

Generators: Since the latest submission of the PD , t he number of LQG s in the state has risen, ranging from 15 to 2 4 compan ies . Of t hose companies, approximately 20 companies have consistently been LQGs over the past three biennial reporting periods , while the remain der were

c ompanies generating a large amount of waste on a one

- time or

inconsistent basis. Waste minimization opportunities implemented b y companies within the state previously regulated as a Small Quantity Generator (SQG), reduced the number of SQGs from approxima tely 800

to 600 since the latest submission

. Implementation of product substitution opportunities played a large role in enabling companies to reduce the ir waste generation quantities to levels regulated as a Conditionally

- Exempt Small Quantity Generator (CESQG) . These efforts were especially noted

among companies that switched from using chlorinated solvents (i.e.

, vapor degreasers such as 1,1,1

- trichloroethylene, and chlorinated or ignitable solvents ) to aqueous detergent s olutions or high

- flash point

s olvents in parts

- washing operations

. The EPA RCRAInfo database

c urrently lists over 980 companies in the state as CESQGs . However,

DENR estimates t he actual number m ight be nearly twice that amount because CESQG companies are not required to notify of th eir hazardous waste activity

.

Transporters: The RCRAInfo database lists a total of two commercial hazardous waste transportation operations. Both active operations are located in eastern South Dakota : Safety

- Kleen Systems (SDD000716696) is located in Sioux Falls and the second, Ross Management ( SDD034760462 )

, is located in Colman

. Safety

- Kleen Systems specializes in the transportation and service of hazardous and

non

- hazardous industrial cleaning solvents. Ross Management specializes in servicing Pol ychlorinated Biphenyl ( PCB ) items and off

- site transportation of hazardous wastes

.

3. Program changes that have significant impact on state ’s efficiency and existing program resources

Since the latest PD submission , the hazardous waste program’s FTE level has increased from eight to eight and one

- half. O ne and one

- half of the

hazardous waste staff are located in DENR’s office in Rapid City , and the

remainder are located in Pierre

. Previously, DENR also had hazardous

waste staff in Sioux Falls. The deci sion to m ov e a majority of the Sioux

Falls FTE to Pierre was an effort to increase communication and

coordination among staff

. However, t he staff consolidation also increase d

travel time for staff conduct ing inspections in the eastern one

- quarter of

the

. To compensate, i nspectors coordinat e inspection trips with other

DENR programs when feasible , and staff have increase d the number of16 inspections conducted during each out

- of

- town trip. Because of the distance between Pierre and most cities, staff have in creasingly come to rely on local officials’ eyes, experience

, and assistance. In instances such as complaint s or emergency calls, staff can contact city o r county law

enforcement when complaint s requ ire immediate attention. That provides

initial attentio n to the issue and allow s additional time for hazardous waste

staff to reach the site , when needed.

While the number of hazardous waste staff has increased by one

- half FTE, the number of i nspection commitments for the federal fiscal year ha s increased fro m 50 to a minimum of 75

. Inspection and oversight responsibilities for permitted facilities has decreased from essentially two

to one. H owever, the actual work load required has been affected minimally. As indicated earlier, the latest PD encompassed res ponsibility for three permitted facilities : two at Ellsworth AFB and one at Safety

- Kleen Systems. The two EAFB permits represented a constructed, operating storage area, and a yet

- to

- be

- constructed but permitted storage area. As such, the permitted const ructed facility required annual i nspections and

record reviews. Because the EAFB storage facility w as not a commercial entity, few permit modifications occurred. Also, b ecause p ermitted federal facilities are not required to obtai n financial assurance , n o financial assurance reviews were conducted. Because the second EAFB permit was not constructed prior to closure, no inspections were conducted of that entity, only permit renewal and eventual termination duties were

conduct ed. Following closure of thei r permitted storage facility, EAFB completed construction of the storage building previously proposed. While they no longer conduct storage operations under a hazardous

waste permit, EAFB continues to generate significant hazardous waste quantities and us e s the new building for 90

- day storage . Therefore, DENR staff continue to conduct annual inspections at EAFB that frequently include review of the those storage operations

, in conjunction

with reviews of other operational areas at EAFB.

Past and curren t responsibilities for the Safety

- Kleen commercial storage facility ha ve re mained fairly constant

, and requir es regular review

. Oversight of the Safety

- Kleen facility involves conducting annual inspections, reviewing and approving permit modifications, tr acking and reviewing financial assurance updates

, and addressing issues or questions that typically arise at least once or twice each month. From a Corrective Action standpoint, as of June 2007 Safety

- Kleen successfully

addressed and c lean

- closed an on

- si te spill. No additional activities are anticipated regarding that issue; however, should the need arise, staff will

address any issues or new releases that occur.

Because the state’s hazardous waste program has essentially three individuals conducting a minimum of 75 inspections, the number of report

reviews

, follow

- up activities

, and informal enforcement actions has

increased since the latest PD submission . The number of formal17 enforcement actions remains fairly stable, at one or two issuances each

year . This stabilized level is indicative of a mature hazardous waste

program ; reflecting increased knowledge of the regulated community largely resulting from the successful dissemination of information by staff through inspections, phone calls and written c orrespondence

. T he high (100 percent) return

- to

- compliance rate of companies that receive

enforcement actions attests to the effectiveness of the DENR program

.

C. Itemization of Estimated Costs and Sources of Funding for Revision

1. Personnel

DENR is committ ed to maintaining the staff level and technical mix necessary to administer the state’s hazardous waste program. Occasional upsets in the staffing may occur due to staff turnover;
however, overall, the knowledge required of staff in the program include

a s pects of biology, chemistry, engineering, geology, and hydrology. Positions are filled with individuals qualified in these areas.

As indicated previously, the state’s hazardous waste program employs eight and one

- half full

- time

- equivalent (FTE) personn el. One FTE as well as a portion of another

, who contributes administratively

, are located in DENR’s Rapid City office, while the remaining individuals are located in

Pierre. Staff working in the hazardous waste program have longevity and a great deal of experience. The N atural R esources E ngineering S pecialist working in the Rapid City office has worked in the program since 1993

, and has five additional years experience working in the hazardous waste field for consulting engineering and hazardous waste m anagement companies

. The other two individuals, a Natural Resources Project Engineer and Environmental Project Scientist, have been working for the hazardous waste program since 2006 and 2007, respectively. The hazardous waste program’s team leader is an E nvironmental S enior

S cientist who has been with the Waste Management Program for a total of 21 years, 20 of those years with the hazardous waste program. The Waste Management Program ’s administrator has been with DENR for a

total of 29 years , the last 1 3 years serving as the Waste Management Program administrator and prior to that as the hazardous waste program’s

team leader

. The experience and longevity of the staff contribute to a mature, stable hazardous waste program , one that offers excellent

mento rship to new employees which in turn contributes to the continued strength of the state’s program

.

2. Funding

a

. Estimated program and technical support costs

Costs associated with running the state’s hazardous waste program involve staff salaries, in

- state and out

- of

- state travel

, and18 per diem reimbursements . In

- state travel and per diem

reimbursements are incurred as staff conduct hazardous waste inspections, compliance assistance, complian ce follow

- up investigations, and speaking engagements. Oc casional out

- of

state travel is also a cost, enabling staff to attend training opportunities and regional/ national meetings.

b. Sources and amounts of available funding

Funding for the hazardous waste program comes from two sources: through the federal Per formance Partnership Grant and state general funds

. The federal grant amount is 75 percent of the program’s total operating monies and the remaining 25 percent is

state

- funded (see table below).

Federal Grant $ 2 75, 9 0 1 .00

State Match (general funds) $ 91

, 967 .00

A third, but currently potential, source of funding is represented by permitting fees that would be assessed of a ny new or existing facility for hazardous waste treatment or disposal. Currently

, DENR has not collected hazardous waste permit ting fees because no treatment or disposal facilit ies exist in th is state ; nor have such applications been received. The fee schedule for permitted treatment and disposal facilities ha s been established in the state’s hazardous waste statutes (SDCL 34A

- 11

- 12.1; 34A

- 11

- 16.1; and

34A

- 11

- 25).19 

### SECTION V

STATE PROCEDURES, PERMITTING PROGRAM AND COORDINATION

WITH OTHER AGENCIES AND PERMITTING

(40 CFR 271.6(c) & (f))

A. Regulatory Development

In accordance with state statutes SDCL 34A

- 11

- 1.1 and 1

- 40

- 4.1, DENR cannot

establish hazardous waste rules that are more stringent than the corresponding

federal hazardous waste rules. Concomitantly, in accordance with RCRA Subtitle C, Section 3009, no state may promulgate rules less stringent than those

authorized u nder Subtitle C (hazardous waste). As a result, the state adopts the federal hazardous waste rules by reference.

T he federal government updates their hazardous waste rules on a continual basis during the year with publication s in the Federal Register. T he y codif y and

bind final rules into printed volumes once each fiscal year. The hazardous waste rules revised as of July 1 each year through June 30 of the following year are placed into 40 CFR Parts 260 through 279 . To maintain current state rules and

t he state’s authorization status, the program typically updates the state ’s

hazardous waste rules on an annual basis, reflecting updates made in the 40 CFR. The process to update s tate rules, established by the state legislature,

occurs as follows:

1. Draft rule prepar ation . State rule

- making procedures require changes made to existing rules be reflected using strikeouts and inserts. New language is placed within the set of rules as inserts and strikeouts mark te x t deletions

. 2. Permission to public notice. T he program’s team leader appears before the

BME to request permission to public notice the draft rules.

3. Rules draft ing and internal review. Upon BME approval, staff d raft rules . A copy of the proposed rules and corresponding rule

- making documents are

s ubmitted to DENR’s Secretary (hereinafter “Secretary”) for approval and signature. At this time, staff also provide EPA Region 8 authorization personnel with a copy of the draft rules.

4. LRC/BFM review. Draft rules and corresponding rule

- making documents a re submitted to the state ’s Legislative Research Council and Bureau of Finance and Management for review, approval and signature.

5. Public notice. Upon receipt of signed and approved LRC and BFM
documents, a public notice summarizing the rule changes is sen t to at least four newspaper s of general circulation within the state . Copies of the public notice are also provided to ent ities on the BME mailing list . Th at list consists of individuals and companies who have indicated their wish to receive

information regarding actions addressed by th e BME . Publication of the public notice occurs at least 45 days prior to the public hearing.20

6. Public comment. During a minimum 20

- day public comment period following publication of the public notice, program staff receiv e written and oral

comments regarding the proposed rules.

7. Public hearing. A p ublic hearing is held before the BME

. During the public hearing the program’s team leader provides an overview of the proposed

rules and answer s any questions the audience and B ME members have.

The BME members then vote to approve or deny the rules. BME keeps

m inutes to document public input and the final vote.

8. Rule approval. Upon approval, the appropriate rule

- making documents are signed by the b oard c hair and b oard members

. These documents are provided to program staff to continue the rule

- filing process.
9. Rules finalized. Program staff incorporate any changes as directed by the

BME , and the rules are then finalized.

10. Final rules submitted to l egislative rules committee

. Co pies of the final version of the proposed rules, copies of any written comments, minutes from the public hearing

, and procedural rules

- filing documents are sent to the Legislative Interim Rules Committee (LIRC) , prior to a hearing by that

committee.

11. LIRC h earing. The program’s team leader appears before th is c ommittee to provid e an overview of the rules and the outcome of the public hearing. Program staff address any concerns or questions posed by the c ommittee

members.

12. Filing of final rules. Upon approv al by the LIRC, and no earlier than ten days following the public hearing, the final version of the rules are filed with the Secretary of State.

13. Rules become effective. Rules are provisionally effective 20 days following filing with the Secretary of State . Rules are finally effective on July 1 st of the next state fiscal year.

B. Notification

The state ’s hazardous waste program utilizes EPA’s RCRA Subtitle C Site Identification Form, EPA Form 8700

- 12 (as revised November 2009 ). Notification forms are proce ssed in the following manner:

1. Upon receipt of a notification form, staff review the document for completeness and presence of an original signature.

2. If additional information or clarification s are ne ed ed , staff contact the company to obtain th at informati on. Should a document not contain a n original signature, staff informs the company DENR cannot provide an ID

number until receipt of a notification form bearing an original signature.

3. Staff review locational information to determine whether the notifying site has

a previously assigned ID number.

4. Utilizing identification numbers generated through the RCRAInfo system

, DENR staff assign an ID number to th at location.

5. Staff enter n otification and ID information into RCRAInfo.

6. Staff prepare a verification memo documenting the generator’s site location, mailing address

, and ID number along with a copy of the final signed21 notification form that now bears the company’s ID number.

7. DENR mails a verification memo and copy of the notification form with the assigned ID number to the generator.

8. Staff place t he original signed notification document in DENR ’s hazardous waste notification file. At the time of the writing of this PD, th at file consists of multiple three

- ringed binders organized alph abetically by company name

. Program staff plan to scan these documents for electronic storage. Hard copy microfilms of the originals will be made to serve as the official backup

file.

C. Manifest Tracking System

Manifests used by South Dakota’s generators, transporters

, and TSD f acilities are those required in ARSD 74:28:23:01, adopting by reference 40 CFR 262, Subpart B, ARSD 74:28:24:01, adopting by reference 40 CFR 263, Subpart B and ARSD 74:28:25:01, adopting by reference 40 CFR 264, Subpart E, respectively. Manifest use by i nterim status facilities is subject to the requirements in ARSD 74:28:28:01, adopting by reference 40 CFR 265, Subpart

E.

South Dakota does not require that generators, transporters , interim status

, or TSD facilities submit manifest copies to the state’ s hazardous waste program.

Because some other states have that requirement, South Dakota often receives

manifest documents . Upon recei ving manifest s

, staff file the m in t he appropriate generator file. This information is reviewed when inspectors prepar e pre

inspection reports to conduct hazardous waste inspections. If questions regarding the shipment arise from the manifest review , staff contact the generator to obtain clarification. The manifest information received is also used

to identify new genera tors, including potential LQG s and SQGs that have not submitted required hazardous waste notification information

.

D. Coordination of Information Regarding Interstate and International Shipments

I nformation provided to the state ’s hazardous waste program fr om other states or federal entities is incorporated into an appropriate state program file

. When

discussions occur between DENR and other state or federal entities regarding

th at information, the hazardous waste program’s team leader serve s as the primary contact and particip ate s in meeting. Similarly, when the state hazardous waste program contacts other state or federal entities regarding waste shipments, the hazardous waste program team leader serves as the primary

contact.

E. Permitting

One of the mos t comprehensive procedures conducted by the state’s h azardous

w aste p rogram i s permitting. Owners and operators of facilities subject to permitting regulations are required to submit a permit application that covers all aspects of the design, operation, m aintenance , and closure of th at facility.22

Additionally, as part of the permit process they must also ensure corrective action is carried out should releases occur. All treatment, storage and disposal facilities go through the same basic permitting proces s, encompassing the following five steps:

1. Submittal of Part A and Part B permit application s ;
2. Administrative review of the permit application;

3. Preparation of the draft permit;

4. P ublic notice, public comment

, and finalizing the permit; and,

5. Modifying, maint aining , renewing and terminating a permit.

To date , the state has issued three hazardous waste storage permits: two to

Ellsworth AFB and one to Safety

- Kleen Systems. Ellsworth AFB terminated and

clean

- closed their permits in 1998 and 1999; c urrently onl y Safety

- Kleen
operat es under a hazardous waste permit. Safety

- Kleen’s initial permit was issued in 1991, with renewals in 1993, 1998, 2002, and 2007.

1. Permit application

South Dakota’s hazardous waste permitting responsibilities are held within

the haza rdous waste section of DENR’s Waste Management Program

. In

consideration of engineering and technical criteria associated with hazardous waste permits

, these permit responsibilities are primarily assigned to senior hazardous waste staff with an engineerin g degree. Other program engineers and scientists assist with r egulatory, procedural

, and chemical information reviews

.

Typically, hazardous waste program staff hold numerous conversations with potential hazardous waste permittees before they submit an

ap plication . Pre

- application dialogues typically include face

- to

- face meetings

, telephone conversations, and email correspondence. Sta ff personnel provide any guidance documents available to the applicant

, including state and federal documents applicable t o the type of permit sought.

South Dakota utilizes the federal Part A Permit Application, and refers the permittee to the Part B requirements specified in ARSD 74:28:25:01

, adopting by reference 40 CFR 264 ; and ARSD 74:28:26:01, adopting by

reference 40 CFR 270

. Companies meeting the applicability requirements for permitting under the Standardized Permit s for Storage and Treatment

Units section are referred to the Part A permit application and ARSD 74:28:25:01, adopting by reference 40 CFR 267 , Subpart J

.

2. Permit application review process

Upon receipt of a Part A and Part B permit application, staff personnel

conduct a two

- part review. The first part is a completeness review to

determine whether the application contains all components that required23 by state rules and statutes ( e. g.

, the Part A application, schematics, drawings, and the Part B application

, including both general and specific facility requirements ). The completeness review is conducted within 60 days of receiving the permit application.

The second part of the review process i s a te chnical review where the staff engineer conduct s a detailed review of the engineering plans and specifications and other information . The p rogram’s scientists also review

related data and any chemical inform ation . This technical review

determine s whether th e information submitted is adequate to make a permit determination. In addition to the completeness and technical reviews, staff may conduct a site visit of the proposed facility and meet

with co mpany rep resentatives. Such visits are made to ensure a high

level of communication and facilitate staff’s understanding of information submitted in the application. Staff provide EPA Region 8 permit counterparts a copy of the application in both a spirit of coop eration and in

accordance with the state/EPA partnership effort.

3. Addressing p ermit application deficiencies

If staff determine a permit application is not complete, a letter

, referred to as a Notice of Deficiency, is sent to the owner or operator. The N otice of Deficiency describes the information that must be submitted and cit es applicable regulatory section s . A Notice of Deficiency letter can be sent after the completeness review

, to address the need to include a set of required information ; or follo wing the technical review

, to address both completeness and technical deficiencies.

Once the applicant s ubmits all information required

, DENR informs the applicant in writing the permit application is considered complete

. If , after receiving a Notice o f Deficiency, a n applicant fails to provide adequate

information and su bsequent ne gotiations fail to bring resolution , the

S ecretary can recommend denial of the application. The applicant is sent notice by mail of the facts or conduct that warrants DENR ’s inten t to deny the permit. The applicant can appeal DENR ’s decision by bringing the

case before the BME . The BME will hear the case and determine denial or acceptance of the application.

Once DENR receives a complete and technically adequate permit, th e program’s senior engineer completes review of the application, including engineering and regulatory aspects

. Working with the engineer, the program’s team leader also review s the application, including biological,

chemical

, and regulatory aspects

. Addi tional s taff engineers and scientists participate in the review as needed. Following the completeness and technical reviews, program staff conduct a meeting to

determine whether DENR recommends approval or denial of the permit to

BME

.24 If DENR re commends denial of the permit, t he applicant is sent notice of that decision by mail, including the reasons for DENR’s intent to recommend denial. As noted previously, the applicant can appeal DENR’s decision by bringing the case before the BME, and the board wil l hear the case and determine denial or acceptance of the application. If DENR recommends approval of the permit, staff begin preparation of a draft permit (see below).

4. Draft permit and public notice

When DENR recommends approval of a permit application

, hazardous waste program staff prepare a draft permit. Upon completion of the draft permit DENR staff prepare a public notice to be published in pertinent

newspapers in the state. This public notice is also mailed to companies

and individuals on the BME ’s mailing list and a facility

- specific mailing list incorporated into the permit application . A minimum of 45 days following publication is allowed to receive written comments from the public (see below)

.

5. Public participation and permit issuance

As ind icated above, the public is provided a minimum of 45 days to review and provide written comments on a draft permit. Program staff review

w ritten comments received within the 45 days

, and revise t he permit as needed to incorporate pertinent comments.

If merited, the final decision to issue a permit may be brought before the

BME , especially if an issue result s in substantial public comment or
controversy. Individuals who have prepared comments may present testimony in person before the BME at that hearin g . After hearing public comment, the BME votes to determine whether DENR needs to revise the draft permit before final issuance, whether the permit can be approved as is, or whether the permit should be denied. BME keeps minutes to document public input and the final vote.

Following the comment period, or the public hearing in the case of a BME hearing, program staff revis e the permit if necessa ry and DENR issues a final permit to the applicant , if approved . As indicated earlier, an initial permit remai ns in effect for two years from the date of issuance.

6. Permit modification, renewal, revocation and reissuance, and termination

Permits may be modified, revoked and reissued, or terminated either at the request of any interested person, or upon DENR ’s ini tiative. Review of

information received from the permittee , the general public, department inspections, or from other sources can result in a determination by DENR that a permit needs modification or other action. Permit modifications

submitted to DENR b y the permittee are reviewed by the lead staff person25 assigned to oversee the facility (typically the permit writer). Upon review of the modification request, staff determine whether the changes represent a Class I, II

, or III modification. The three mod ification types are described in ARSD 74:28:26:01, adopting by reference 40 CFR 270.42 Appendix I. Class I modifications represent minor changes to a permit that keep it current with routine changes to the facility or its operation. These changes do not substantially alter exi s ting permit conditions or change the capacity of the facility. Class I modifications can includ e correcting typographical errors; updating facility contacts; and increasing the frequency of monitoring, reporting sampling or mainte n ance. Class II and III modifications represent more substantial changes proposed for the facility. Class II permit modifications represent changes necessary to enable a permittee to respond, in a timely manner, to common variations in the types and quant ities of wastes managed on

- site; technological advancements; and where certain changes are necessary to comply with new regulations as long as these changes can be implemented without substantially changing design specifications or management practices.

E xamples of Class II modifications include changes in frequency or content of inspection schedules; changes in the number, location

, depth

, or design of groundwater monitoring wells ; and increas es in waste storage capacity. Examples of Class III modificat i ons include storing different wastes in containers; requiring different management practices than currently authorized in the permit; and chang in g indicator parameters, hazardous constituents or concentration limits in gr oundwater protection

standards.

W hile Class I modific ations require the permittee to notify DENR prior to or within seven days after implementing the change, and send ing a notice of the modification to all entities on the facility’s mailing list, no other public notice is required. Class II and III modifications require the permittee to notify DENR ; sen d a notice to all entities on the facility mailing list ; ensure a copy of the permit modification request and any supporting documents are made available and readily accessible to the publi c; provide a 60

- day public comment period by publishing the notice in the local newspaper; and conduct a public meeting prior to the close of the 60

- day comment period. Class II and III modifications can only be initiated once the comment period has occur red and the modification allowed.

Permit modifications initiated by DENR can be requested under specific

circumstances. These circumstances include: when material and substantial alternations or additions have been made to the facility after the permi t was issued; when DENR has received information that was not available at the time the permit was issued, bu t would have required different permit conditions; when new statutory or regulatory changes

necessitate changes be made in the permit; and when cir cumstances

such as act s of God, strike s , flood s , material shortage s, or other events not under the control of the permittee occur that require a change in compliance schedules.26 A n owner/operator of a permitted facility must submit an application for permit renewal to DENR in a timely manner (180 days prior to expiration

of the current permit as required by ARSD 74:28:26:01, adopting by reference 40 CFR 270.10)

. Should DENR not act on a renewal application for an existing hazardous waste permit before the c urrent permit expires, and the applicant has submitted timely and sufficient application, in accordance with SDCL 1

- 26

- 28 the current permit does not expire until DENR makes a final determination.

Perm it revocation s may occur if DENR receive s information or a written
request to revoke and reissue a permit. Revocation and reissuance of a permit can occur only under certain circumstances, including : termination, followed by modification or revocation and reissuance; a proposed permit transfer is requeste d ; or the permittee inten ds to be covered by a standardized permit. These causes are specified in the state’s hazardous waste rules (see ARSD 74:28:26:01, adopting by

reference 40 CFR 270.41).

7. Interaction with enforcement personnel

Because of the state ’s small staff size, personnel responsible for conducting hazardous waste generator inspections also conduct

hazardous waste permitting activities. As indicated earlier in this document, staff engineers take the lead on permits to ensure plans and specifi cations submitted by the applicant meet both regulatory requirements and technical specifications . Staff scientists work with the engineers to ensure other aspects of the permit process are met and to assist with public participation and board meeting req uirements as

needed . In addition, all permit

- related accomplishments must be relayed to the staff member responsible for RCRAInfo data input . The coordination and communication among staff is accomplished through daily interactions, periodic staff meetin gs as well as electronic and hard copy sharing of information.

8. Routine review of facility operation

Each year, DENR receive s financial assurance updates for a permittee’s closure/post

- closure costs and liability insurance. Upon receipt of the update, the lead engineer reviews the instrument and associated information, including the instrument value, to determine compliance with requirements for the instrument’s language and whether the value assigned is sufficient. This review requires staff to determ ine the annual inflation rate and, using a specified formula, calculate the required value

for the financial instrument provide d

. If the value of the financial instrument provided by the permittee is less than the required value for

financial assurance ca lculated by program staff

, DENR sends the permittee correspondence indicating they must provide additional funds adequate to meet the financial assurance requirement

. If the value of the27 submitted financial instrument is equal to, or exceeds, the required value,

the instrument is sufficient and staff send correspondence to that effect to the permittee. All financial instruments are maintained in a locked safe within the Waste Management Program offices in Pierre

.

In addition to review ing financial ass urance documents, staff conduct

annual on

- site inspectio ns of each permitted facility. The on

- site inspection is performed to determine whether the facility is operating in compliance with its permit, and if any physical operations or procedural

activitie s have changed. A s noted previously, facility change s or operational issues identified from inspections can result in DENR performing one of three actions: modification of permit conditions; revocation and reissuing the permit; or termination of the perm it. Procedures for carrying out these actions have been described earlier in

this document.

9. Reports and information required by the state

All TSD facilities in South Dakota are required to submit, at a minimum, a hazardous waste biennial report. This r eport, due March 1 of each even numbered year, detail s the types and amounts of hazardous waste managed during the previous odd

- numbered year. Should circumstances occur requiring the facility notify DENR of an unmanifested waste, they

must submit a writt en report within 15 days of receiving the waste. In addition to the biennial and unmanifested waste reports , permit conditions may require a facility to submit additional reports, including progress reports, notice of non

- compliance reports, and monitorin g reports. The frequency at which the permittee must submit the reports is specified in the facility’s permit conditions.

10. Other types of permits

South Dakota’s hazardous waste program has the capability to issue permits for the treatment, storage

, and disposal of hazardous waste as well as special forms of permits. Special forms of permits include the following: permits by rule, emergency permits, research development and demonstration permits, standardized permits and remedial action plans

.

11. Jo int permitting

Joint permitting with EPA Region 8 may be conducted due to a chang e in regulations and the lag

- time inherent in the state’s rule adoption process

. EPA retain s its responsibility to ensure “full and faithful” execution of RCRA/HSWA, includi ng direct implementation in the event the state is unable to take action. EPA will enforce regulations and issue permits promulgated under HSWA if the state has not yet adopted the federal requirements . In such instances, frequent communication between t he state and EPA will be conducted in order to ensure a smooth process.28 Most communication will be conducted over the phone and through electronic exchange of documents; however, face

- to

- face meetings may need to be conducted at some point during the proc ess.

F. Interim Status

Existing operations that become treatment, storage

, or disposal facilities due to statutory or regulatory change must submit a Part A application as soon as they become subject to the new requirements. These facilities are considered interim status facilities. The Part B application for these facilities can be voluntarily submitted by the applicant or called in by DENR . However, the state must

receive or call

- in the Part B application within 12 months after receiving the Part A appl ication. After receiving the Part B application from an interim status facility DENR will conduct the same review of the applicant’s Part A/Part B permit application as described for new facilities earlier in this document.

G. Biennial Reports

South Dak ota requires every LQG and each permitted treatment, storage

, and disposal facility in the state to submit a hazardous waste biennial report. These reports are due by March 1 of every even

- numbered year to reflect hazardous

waste activities conducted duri ng the previous odd

- numbered year. Presently,

DENR offer s generators and TSD facilities two options for submitting biennial report information. Businesses may choose to complete the forms found in

EPA’s 8700

- 13 Hazardous Waste Report instructions and for ms booklet, or download and complete software offered free from the state of Florida at: http://www.dep.state.fl.us/waste/categories/hazardous/pages/BRS_data.htm

Up on receipt of the information, the state’s lead staff person for hazardous waste biennial reports reviews the information submitted for errors or omissions

. After initial review, staff transfer the data into the state of Florida’s reporting software

and r un two programmed data checks. The first check is a fairly simple one with the second being more thorough. Once the data passes both edit checks , staff

download the data in to a flat file and electronically transferred to EPA ’s national biennial reporting system. EPA Headquarter’s staff perform a dditional data

verification and submit a draft report to DENR of the data submitted by South

Dakota . Upon approval of the data submitted by each state, EPA publishes the final national biennial report.

H. General I nspections and Enforcement Actions

Inspections of h azardous waste generator s represent the largest portion of work conducted by state hazardous waste program staff . They also represent the

base from which most other activities grow . Currently, DENR comm it s to EPA t o conduct a tota l of 75 generator inspections each federal fiscal year . These inspections includ e a minimum of five LQG operations, one TSD facility, and a t

least 6 9 SQG and CESQG operations. One TSD F inspection represents 100 percent of the state’s current TSD F universe. Based upon 2009 LQG29

information the state had 2 4 companies that generated more than 2

, 200 pounds during at least one calendar mont h that year. The remaining 6 9 inspections will

occur at SQG and CESQG operations

, as determin ed by priorities and criteria explained below.

The program’s inspection schedule is based upon a number of factors including inspection frequency for individual gen er ators , complaint information, a s well as

DENR and EPA sector initiatives. By November 1 5 of each year DENR submits a list of proposed inspections to the EPA Region 8 enforcement oversight officer

for South Dakota

. Although DENR prepares t his list based on the above criteria,

we acknowledg e that the actual inspections conducted over a year c an change

because of complaints received, unexpected issues that may arise from a state or federal standpoint, and actions that require an above

- average amount of staff

time.

DENR h azardous waste inspection s begin with a thorough review of file and

databa se information. The inspector reviews i nformation currently on file regarding the generator

, and summarize s information relevant to the upcoming inspection in a brief pre

- inspection report ( see Section VIII.5 ). Staff pay particular attention to the most recent biennial report (if applicable)

, hazardous

waste notification form (s), previous inspection reports, recent generator correspondence

, stat e hazardous waste database, and RCRAInfo database information to identify potential wastes and possible complian ce issues. In some cases, staff attach additional information to the pre

- inspection report if applicable

to issues that need to be addressed while on

- site

. T he inspector contacts the company representative to arrange the inspection and obtain any additio nal information, such as operational changes, that might not be contained in current

files . This call is typically made about one week prior to the intended inspection date, and is made to ensure the appropriate company personnel will be present

for the i nspection.

Program staff present their DENR credentials to company personnel upon

arrival. S taff then conduct the inspection to determine the generator’s compliance with the state’s hazardous waste rules. C ompany representatives

and the inspector typi cally begin by discu s s ing current processes

, products used,

and the type s and amount s of wastes generated. The inspector asks questions of the company representatives and document s their replies by writing within a bound notebook

. The inspector typically reviews waste

- related d ocuments during the inspection that include manifests, land disposal forms, test results, product data sheets, emergency response procedures, and personnel training

. Information regarding these records are also recorded in the note book . The inspector m ay request document copies for additional review or t o attach to the inspection report. Following th e document review

, company personnel and the inspector typically observe the relevant on

- site operational areas determined by

the ins pector. The site tour is an important part of the inspection , providing the inspector the opportunity to observe and document the proc esses and products

use d as well as verify the waste type s and quantities generated. The inspector

examin e s waste generat ion and storage areas

, waste containers and tanks

,30

posted emergency response information, the availability of communication

devices

, as well as safety and emergency response equipment . At the

conclusion of the inspection company representatives and the in spector review the inspection information. At that time, the inspector summarize s any information the company still needs to provide

, review s suggestions, concerns

, or highlights noted during the inspection

, and address es any additional questions either p arty might have. The inspector then prepares a Notice of Inspection form (see Section VIII.6) , documenting items that require follow

- up by either party. Both the company representative and inspector sign t h at n otice

, and the inspector leaves the original copy with the company representative

.

Upon return to the DENR office , the inspector completes a Compliance Evaluation Inspection (CEI) form ( see Section VIII.7 ). Used for data
management, t his form includes the hazardous waste identification number, if one has been assigned, company name, company address, inspection date, and inspection type. The inspector submits the completed CEI form to the program’s

RCRAInfo data lead for input into the RCRAInfo Compliance Monitoring and Evaluation (CM&E) module

. W hen the generator does not already have an assigned hazardous waste ID number, the data lead assign s a n identification

number during the RCRAInfo data input

, flagging th at information as an “implement e r record”. In the RCRAInfo system, t his signifies the information

was obtained by staff personnel rather than submitted by the company using a hazardous waste notification form.

Over the next 30 days, t he inspector compiles the inspection information into a

written inspection report ( see Section VIII.8 ). The inspector initially compiles written notes and information from documents provided by the company into a draft report that document s the processes used, wastes generated, generat or status, waste minimization

, compliance assessment

, and a summary of fi ndings

. The inspector may also attach to the draft report, relevant documents obtained

from the inspection that document information included in the report

. Upon completion, t h e inspector submits the draft report to the program’s team leader

for review. After review, the inspector gathers any additional information needed to complete the report and incorporate s any necessary text revisions to finalize

the report for filing

. Once final, the inspector signs the report, including the date

finalized. If req uested by the generator, the inspector provides a copy of the final report to the generator. DENR files the original report in the appropriate

hazardous waste fil e under the generator’s name. When the inspection was an EPA oversight inspection, DENR subm its a copy of the report to EPA R egion 8.

The compliance evaluation section of each inspection report detail s the factual basis for any v iolations identified from an inspection

. An example of a violation

detailed in a report ’s c ompliance e valuation secti on follows:

Waste Storage: Acetone is used to flush paint lines within the company’s paint booth. Once placed within a mostly empty paint gun canister, the painter sprays the acetone/paint material into a 55

- gallon capacity waste storage drum. At the time of the inspection, three 55

- gallon drums were in31 the company’s waste storage area. Two of the three containers were full and

both containers were marked with the w ords “hazardous waste” and

accumulation dates. The third cont ainer, approximately half

- full at the time of the inspection, was not marked with the words “hazardous waste” and an

accumulation date.

The inspector initially brings v iolations identified during the on

- site portion of the inspection to the attention of the generator at that ti me . Violations identified during subsequent report preparation are communicated to the generator in a written notice. In these cases, the inspector also typically contacts the generator by phone to confirm the information indicating a violation.

DENR ad dresses the violations identified from inspections in a manner consistent with the nature and scope of the violation. Upon completing the inspection report, the inspector will discuss violations with the hazardous waste team leader. If necessary, the Was te Management Program administrator will also participate to determine the appropriate level of enforcement.

For low

- level violations, DENR typically issues an informal notice, referred to as a Warning Letter, to the generator. Low

- level violations typi cally consist of one to two minor violations, such as failing to mark waste containers, that do not

result in or have a low potential to cause substantial releases to the environment. In addition to stating the generator’s waste generation status and the v iolations noted, the Warning Letter designates specific actions the generator must take to comply with the rules ; it provides a timeframe in which the generator can rectify the violations without additional DENR action, and details information the
generato r must submit to DENR to document their return to compliance. When the program issues a Warning Letter, staff input pertinent information regarding the enforcement action into RCRAInfo’s Compliance Monitoring and Enforcement module. Warning Letters are d esignated in RCRAInfo by using the

code 120

– Informal Action, for data purposes

.

For more significant violations DENR undertakes formal enforcement actions.

DENR takes formal enforcement action when staff determine the number and/or type of violations identified from the inspection require additional redress, such as when violations resulted in significant releases to the environment or economic benefit to the generator. DENR may also take formal enforcemen t when inspections identify the company has re peatedly violated even minor rules

or failed to correct violations identified during previous inspections. Formal enforcement actions involve issuing two documents: a Notice of Violation and Order; and a Settlement and Compliance Agreement. The Notice of Violation and Order (referred to as an NOV) specifies the violations found, actions the generator must take to return to compliance, and timeframe in which the generator must rectify the violations and provide verification to DENR. The

Settlement and Com pliance Agreement represents an offer by DENR to settle all administrative claims against the generator by the generator’s payment of a monetary penalty. The hazardous waste team leader calculates the penalty amount using DENR’s multi

- media penalty policy (see Section VIII.9) in32

conjunction with facts contained in the final inspection report. Staff document all formal civil enforcement actions with penalties in RCRAInfo by designating a 500 or 600 series code during data entry.

In cases where the company fails to meet the criteria specified in the NOV and/or fails to agree to, or pay, the monetary penalty in accordance with the proffered Settlement and Compliance Agreement

, DENR may refer the case to the state’s Attorney General. Because the Attorney Gen eral’s staff review each NOV and Settlement and Compliance Agreement during the preparation of those documents, they are already familiar with any cases referred to them. DENR refers any violations that are criminal directly to the Attorney General’s off ice for appropriate action.

Training of new inspectors begins immediately upon hire. In addition to state employee information provided by the Bureau of Personnel, the program’s team leader provides individual training covering the state’s hazardous was te rules, the program’s filing procedures, and data management as well as discussions of our program’s responsibilities to, and work ing with, EPA. Within two to three weeks of hiring, the new inspector begins assisting with preparations for upcoming routi ne hazardous waste inspections and subsequently accompanies the team leader on those inspections. After the on

- site inspection trip, the new staff person participates in drafting the inspection report. As time allows, new staff also complete EPA’s Basic Inspector course, an on

- line course, to help build their knowledge of procedures important for conducting inspections. This course is followed at some point during the employee’s first year by taking the RCRA Inspector course, currently available either on

- line or by reviewing a printed manual. For a period of time, as determined by the program team leader and dependent on the individual employees’ assimilation of regulations and procedures, new employees continue to accompany experienced hazardous

waste inspectors on additional inspections until judged ready to conduct inspections on their own.

I. Groundwater Monitoring Inspections

Groundwater monitoring inspections are conducted at permitted hazardous waste facilities that are undergoing Corrective Act ion activities, or at generator sites subject to an enforcement action that has required them to secure a permit

to conduct Corrective Action. Groundwater information submitted to the department

, in accordance with a facility’s permit, is reviewed by the Waste Management Program’s hydrologist. Currently, no hazardous waste groundwater monitoring activities are being conducted within the state.

J. Waste Minimization and Pollution Prevention

Waste minimization and pollution prevention activities are integrat ed throughout the state’s hazardous waste program. The program has developed s pecific tools

and information resources for use by program staff, the regulated community, and the general public

. Staff provide information frequently in response to33

questions received through phone calls and email inquiries. The greatest impact s for waste minimization and pollution prevention occur through on

- site inspections, where inspectors identify specific opportunities and discuss options with company representatives. Information provided to generators may include

links to various EPA or DENR web pages , local recycling op tions, and vendor listings. Each hazardous waste inspection report summarizes waste minimization information obtained during the inspection and docume nts s pecific

details for on

- and off

- site recycling, product substitutions, and waste elimination

efforts

.

In addition to these efforts, Waste Management staff also conduct activities that fall under EPA’s Resource Conservation Challenge. These efforts primarily involve solid waste recycling, industrial materials recycling

, and beneficial reuse

, as well as electronic waste m anagement and priority chemical reduction efforts.

K. Availability of Information

In accordance with SDCL 1

- 26

- 2, DENR provides for the availability of information for all rules, final orders, decisions, opinions, and intra

- agency memoranda

, together with written statements of policy or interpretations formulated, adopted, or used by the agency

. This statute also provides for the

co nfidentiality of certain materials

. In addition, SDCL Chapter 1

- 27 describes public records that must be made available to the public and addresses the confidentiality of certain records and information

. Within the state’s hazardous

waste statute s , SDCL 34A

- 11

- 22 specifically addresses the availability of

information and certain confidentiality provisions for information deemed trade

secrets

. Specific requirements are discussed in additional detail under the Memorandum of Agreement, the Attorney General’ s Statement

, and the 3006(f)

checklist that h ave been submitted previously. South Dakota received

author ization for the 3006(f)

– Availability of Information provision in November

1993.

T he public may request information from the program via email, tele ph one

, or letter. If the information needed is extensive , requires additional input from other

programs, or requires a detailed review and/or explanation, staff ask that the requestor submit the request in writing so DENR can respond appropriately. In

acco rdance with SDCL 1

- 40

- 31, DENR must respond to all written requests for information within twenty working days of receiving the request. If DENR denies
a request or fails to respond to a request within twenty days, it is considered a final agency action

. However, that final action may be appealed to circuit court. Any records reproduced for the public may be subject to fees in order to reasonably cover the cost of reproduction. Fee waivers are available for public record requests from the press or commu nications media, public interest groups, educational organizations, and governmental institutions.34

In accordance with provisions under SDCL 1

- 26

- 2 and 34A

- 11

- 22, certain information may be deemed confidential. Confidential information can not be

disclos ed to the public in response to requests for information , and those statues stipulate penalties for persons that improperly disclose confidential information

. Confidential information may only be disclosed to other officers, employees, or authorized repre sentatives of the state or federal government (SDCL 34A

- 11

- 22).

L. Appeal s

As indicated earlier in this document (Sections V.E and V.A) , hazardous waste permitting and rule

- making procedures are subject to public comment. In the case of a permit issuanc e, the applicant or the public can appeal issuance of a permit to the BME

. In those cases, staff prepare and publish a N otice of H earing

and bring the contested case before the BME . In accordance with SDCL 1

- 26

- 18, the BME hearing allow s all parties to p resent evidence on issues of fact

, and argument on issues of law or policy. If the amount in controversy exceed s $2,500 or if a property right may be terminated, any party to the contested case may require that DENR use the Office of Hearing Examiners. A person who has exhausted all administrative remedies available within any agency

, or a party who is aggrieved by a final decision in a contested case

, is entitled to judicial

review. I f DENR fail s to make and file a decision within 30 days after a matter has been finally submitted

, or if an extension is given but the agency fail s to file a

decision within the agreed extension, then any a person authorized to appeal

from the record may do so (SDCL 1

- 26

- 30.1) . Appeals may be brought to circuit

court by any party in a contested case from a final decision, ruling, or action of an agency (see SDCL 1

- 26

- 30.2).35 

### SECTION VI

COMPLIANCE TRACKING AND ENFORCEMENT

(40 CFR 271.6(e))

A. Identification of Members of the Regulated Community

1. Identification of revisions that have the potential to significantly increase

the size of the RCRA universe

Since approval of the latest state PD in 1995

, DENR has update d rules on a regular basis to adopt rules promulgated by EPA. These regulatory updates, overall, have not resu lted in significant change s to the types of operations subject to the state’s hazardous wast e regulations. However,

with an overall growth of industry in the state, DENR ha s seen a proportional increase in the number of hazardous waste generators. At

the time of this writing, South Dakota has 2 4 LQGs, 633 SQGs and 990 CESQGs. In addition, there are currently two companies who transport

hazardous waste and one permitted commercial hazardous waste storage facility operating i n the state.

2. Strategies and methods for identifying members of the regulated community

DENR use s a variety of resources to identify new or previously

unidentified members of the regulated community. These sources are

described below:

a. Sister state p rograms and local governmental ag encies

- C o lleague s in other DENR programs and state agencies often

consult with program staff regarding various operations or issues

. These programs m ost often include DENR ’s Air Quality, Ground Water and Surface Water Quality Programs. However, the

De partment of Game, Fish, and Parks

, Department of Public Safety, Governor’s Office of Economic Development, or other state agencies sometime s contact staff. Information sharing occurs with these colleagues

, typically including the types of processes and

op erations conducted at a given location and whether the hazardous waste program has additional information regarding

those operations. In some cases, the hazardous waste program may have no record of the operation . When merited, based on

information obtai ned

, DENR places these business es or locations

on a list of potential inspections.

Because regular communication occurs between hazardous waste

staff and local governmental agencies, DENR often learn s of new generators through local officials. The l ocal officials most often36 work ed with include wastewater

, industrial wastewater pre

treatment , and solid waste facility operators; on occasion local code enforcement, county sheriff

, city police

, and finance officers

are also consulted

.

b. Inspections and enforce ment actions

– Staff conducting routine inspections often obtain information from the generator regarding similar operations within the area or state. This can happen on an informal basis or a more formal bas is through conversations with generator personn el during inspections or complaints received regarding operations at other locations

.

c. South Dakota Manufacturers Register

– As part of preparing the program’s list of potential inspections at the beginning of each fiscal year, staff review the South Dakot a Manufacturers Register and incorporate operations into the inspection list that have the potential to generate hazardous waste but are not included in the program’s files.

d. Public appearances and presentations

- Major industry organizations, trade group s, and some educational institutions typically maintain communication with staff personnel or ask s taff to present hazardous waste information to a variety of groups and

venues. In addition to increasing knowledge among the regulated community, t hese pre sentations offer staff opportunities to learn

about new or unidentified generators.

e. Publications and newspaper articles

– Representatives of

busines s es new to an area are often interview ed by local news
reporters. DENR ’s staff attorney receives electroni c news releases pertain ing to DENR

- related issue s published on

- line and forwards

that information to appropriate staff within each program.

f. BME mailing list

– This mailing list is composed of companies,

trade associations

, and interested parties who have requested they

receive all n otices for issues brought before the BME . These

individuals and o rganizations not only are informed of any rules updates the BME will be hearing, but it also gives them the opportunity to comment. This is one avenue whereby DE NR keeps companies appraised regarding new hazardous waste regulations. This method of notice also gives entities a heads

- up should they become a newly regulated operation , giving them the opportunity to

contact us with questions

.

g. Yellow Pages and electr onic business searches

– S taff review telephone book y ellow p age listing s and electronic search engines

to identify potential generators who may not have notified of hazardous waste activity. These sites are added to the program’s37 list of prospective insp ections.

B. Inspections and Analysis Workload

1. Work adjustments for new program activities

As indicated earlier in this document, the state currently conducts a

minimum of 75 Compliance Evaluation Inspections each federal fiscal year. These inspections pri marily consist of LQG

, SQG

, and C ESQG operations . However, staff also inspect hazardous waste transporter s

, permitted hazardous waste storage facilit ies

, and used oil transfer

facilities

. N ew regulations promulgated by EPA to this point w ill be implemen ted by DENR and absorbed into the regular workload. At the time of the writing of this PD, EPA has promulgated the new Definition of Solid Waste rules, which the state has not yet adopted. A learning curve is anticipated to ensure staff are familiar with and can implement the rule in an appropriate manner.

T he greatest change in the program’s workload would occur should DENR

receive a n application for a new hazardous waste facility

. The need to permit a new hazardous waste facility would require a signi ficant adjustment in staff duties. The program’s senior engineer would be tasked with the primary permitting responsibilities, and the program’s team

leader would work with the senior engineer to assist

. T he program’s junior engineer would be tasked with taking the lead on the existing permitted facility. In this way the junior engineer c an tap the experience of the senior engineer and team leader, who ha ve both worked with the current facility for years. Should enforcement actions need to be taken, th e program’s team leader would still take the lead, but the lead inspector would need to participate to a greater extent in order to see the action through. The program’s environmental project scientist would not only assist with review and research aspect s of the permit, but would be the primary staff person conducting inspections.

2. Inspection, sampling

, and analysis adjustments for new program activities

A ny new permits will result in a need for the program to adjust work assignments among existing sta ff to ensure the program continue s to meet our obligations to EPA. Inspections of any newly permitted facility

, along with the review of financial assurance documents and permit modifications, w ould be conducted by the senior engineer, whom we anticipate w ou l d also be the individual who took the lead in permitt ing the facility. Sampling inspections may be conducted using two inspectors, if appropriate . Test analysis reviews, reports

, and follow

- up duties at a newly permitted facility will also be the res ponsibility of the senior engine er

. Other hazardous waste staff would increase their inspection responsibilities and other duties necessary to the program as discussed previously.38

3. Impact on compliance monitoring of existing program

With additiona l duties, the program anticipates use of current staffing

levels with the option of hiring third party companies to assist with any sampling and analysis needs

. Additional assistance c ould be requested of EPA Region 8 staff for technical reviews and certa in expertise , such as statistical analyses of groundwater data . Permitting fees received from regulated facilities w ou l d be use d for inspection an d monitoring purposes.

In order to efficiently and effectively carry out existing and new duties,

additiona l training w ou l d be conducted

. Training opportunities will be maximized if training c an be obtain ed within the state. Such options are

more available now because of the increased availability of resources through on

- line webinars and disk

- based training courses that staff can implement as time allows . Off

- site training that is outs ide of the state

w ou l d be used as necessary.

C. Data Management

The addition of new activities would require that the program document those activities in conjunction with the activities already document ed and tracked using the program’s existing filing a nd database system s

. This may require some

minimal training of administrative personnel to ensure information is properly

maintained. Additionally, staff must record certain activities in the RCRAInfo database system

. H azardous waste

- related activities including generator

not ifications, implementer records , inspections, enforcement actions, permitting, corrective action, and financial assurance are all recorded using RCRAInfo

modules. Program staff will need to ensure RCRAInfo documentation forms are completed accurately and provided in a timely manner to the program’s designated RCRAInfo Implementer of Records (IOR). The IOR must be familiar with the appropriate RCRAInfo mo dules to ensure the data are fully recorded.

Familiarization with th ose modules primarily take s place through use, but additional assistance will be gained by working with the program team leader, EPA Region 8 staff, and other state IORs

, as well as by at tending training

s ess i ons available through EPA Region 8 and RCRAInfo National Conferences.

D. Compliance Monitoring Resources

1. R esource adjustments for new program activities

a. Increased technical expertise

The background and exper t ise of program staff currently in place provides a broad base of knowledge and ability. New program

activities would be met using the current staff . DENR typically has adequate resources available to program staff to bridge any knowledge gaps encountered . Specific expertis e in areas DENR39 cannot meet w ould be obtained through requests to EPA Regional and Headquarter s personnel, or contracting with third party

contractors

.

b. Additional laboratory support

Currently, the program has the ability to use resources available

th rough the state Health Lab. On occasion, the program has obtained assistance from state university laboratories and teaching

staff. However, because these resources are limited (the state lab s do not perform hazardous waste analyses using TCLP methods ), the program uses outside laboratories to meet hazardous waste testing needs.

2. R esources available for new program responsibilities

a. Plans for training staff

DENR anticipate s the greatest need with respect to training

program staff to handle new haz ardous waste responsibilities will

involve nuances with new EPA regulations that could become

effective in the state

, as well as some permitting/corrective action

information. In addition to reviewing proposed and new regulations EPA publishes in the Fede ral Register and CFR, s taff w ould o btain training on new regulatory requirements through EPA documents such as fact sheets, rule preamble language and correspondence with other regulators throughout the region and country.

P rogram staff will obtain p erm itting and corrective action training through studying documents published by EPA, participating in

EPA

- sponsored permitting and corrective action conference calls and workgroups, and corresponding with experience d EPA R egion

8 and Region 8 state s personne l. Out

- of

- state training opportunities , generally those offered to state programs by EPA,

will be use d when they are available and funding resources allow.

b. Plans for hiring additional staff

Should vacancies occur, or if spending authority allows, additi onal

staff hired would need to have backgrounds in the fields of the natural sciences, engineering

, and/or hydrology. DENR conducts

t he hiring of additional staff using procedures established by the

state Bureau of Personnel. Th at process begins with obt aining approval from DENR management. Upon approval, t he waste management program administrator and hazardous waste program team leader, in conjunction with state Bureau of Personnel staff,

prepare a position announcement. Th at announcement is published in the state’s job bulletin, DENR ’s website as well as40 newspapers within and outside of the state. From the applications received, t he Bureau of Personnel select s candidates who meet the minimum job requirements ; these applications are then

forwarded to t he program. The program administrator and team leader then select about ten individuals who appear most suited for the position. DENR sends letters to those applicants asking them

to contact us to arrange an interview. Depend ing on the number of applica nts and each applicant’s location

, the program administrat or and team leader conduct s one or more ph one and face

- to

- face

interviews with individual applicants . The program administrator

, team leader and department managers select the top two

candidates. The y offer the position to the top applicant, agreeing upon a hiring date and payment rate if accepted . Should the top applicant decline the offer, DENR consider s offering the position to the next applicant, if appropriate.

c

. Agreements with other st ate agencies

Cooperation with other state agencies is a valued resource

. Although DENR does no t have written agreements in place currently

, program staff routinely cooperat e with colleagues in other state agencies. Those efforts will be reinforced in or der to continue

our work or should additional duties deve lop

. Particularly important

is c ommunicati on with the state Highway Patrol when hazardous

materials and hazardous waste transportation incidents occur.

These incidents also require staff communicat ion with local regulatory and enforcement agencies as well as DENR ’s Ground Water Quality and Surface Water Quality p rograms. The state Department of Health is an important partner when dealing with health care facilities and the proper management of phar maceuticals. The state Department of Education is also a colleague when staff work with K

- 12 schools regarding the cleanout

of school lab chemicals.

d

. State plans to use contractor assistance

As indicated earlier in this document, the program primari ly uses

contractor assistance in cases requiring substantial sampling and laboratory analysis. Because DENR maintains a contractual agreement with a consultant and laboratory through the state’s

b idding and awards process, the program would use these

busi nesses if the need arose. Staff would provide the consultant with an outline of project needs and outputs

, including s pecific product tasks and time frames. A staff member serving as the project lead would be the main contact for the consultant, and th a t project lead would be responsible for ensuring the consultant met project deliverables and time frames

.41

E

. Enforcement Process

1. Enforcement procedures

DENR ’s overall enforcement strategy is based upon the following objectives:

A. Remove immediate th reats to human health and the environment;

B. Identify and r emove other pollution problems as soon as possible;

C. Ensure proper corrective or clean

- up actions are taken;

D. Ensure compliance with state statutes and regulations;

E. Prevent violations from re occurring; and

, F. Obtain penalties for repeat violators or major first

- time violations.

In accordance with these objectives, DENR attempts to handle all minor violations through the use of a Warning Letter to the violator. If the probl em is not corrected through use of the Warning Letter within the timeframe specified, a Notice of Violation and Order is issued by the

S ecretary. Should the violations specified in the Notice of Violation fail to be corrected, the issue is referred to the stat e’s Attorney General’s Off ice. During the process of preparing a Notice of Violation and Order by the program, the formal action is provided to the Attorney General’s Office for review. As a result, should the matter need to be elevated to the Attorney General’s Office, the issue will not be unfamiliar to them.

In instances in which violations are particularly egregious, or represent repeated violations, the program’s team leader will prepare a Notice of Violation and Order that will be accompanied by a civil Settlement and Compli ance Agreement. The Notice of Violation and Order specifies the violations found, the corrective measure the generator/permittee must take to comply with the state’s rules or permit conditions, and the timeframes in which to accomplish them. The Settleme nt and Compliance Agreement specifies a penalty the operation must pay in order to settle the case. The penalty amount will have been calculated

usi ng DENR ’s Penalty Assessment Policy ( Section VIII.9 ). The Penalty

Assessment takes into account the maximu m penalty amount that can be assessed per day per violation, the severity of the violation, a damage assessment, the degree of willfulness exhibited by the violator, the company’s violation history, the company’s ability to pay and any benefit the company gained for its noncompliance.

It is customary for DENR ’s team leader to contact the violator well before an enforcement action is finalized and issued, in order to let them know of the violations and pending action. Because the staff inspector has

alre ady kept the entity informed about potential violations, the issuance of

an enforcement action serves as a reinforcement to make sure corrective measures be taken. This practice also reinforces DENR ’s integrity and the importance of complying with the sta te’ s hazardous waste regulations. Once the generator or permittee is issued an enforcement action, the42 violator has the opportunity to meet with department staff and negotiate, to some extent, the penalty amount. Once a final amount has been agreed upon, the violator and the S ecretary both sign the Settlement and Compliance Agreement. The violator must then submit payment of the penalty.

Should a case be referred to the Attorney General’s Office, department staff will consult and provide background infor mation as needed; however, the case will be addressed through Attorney General’s Office authorities. In some cases, such as those where violations have occurred by a company operating in several states, or in especially egregious instances, the state may refer a case to EPA Region 8. Such referrals would be performed in accordance with the state/EPA Memorandum of Agreement.

2. Enforcement of corrective action conditions

Corrective action activities are typically outlined in operating and post

closu re permits , but could be implement ed at hazardous waste generator operations in the event of a release to the environment. The program does not currently have any open corrective actions. When applicable

, corrective actions will be monitored by an assign ed lead staff person. Corrective action activities need to be conducted in a timely manner, to

document that a particular remedy is successful. Timelines to indicate progress will greatly depend upon the type of remedy selected for each unique pollutant, location, and site characteristics . However, if a selected remedy fail s to be productive, negotiations will ensue to ensure a n alternative appropriate path is chosen. Commitments pertaining to

corrective action activities ar e specified in the state/EPA Performance Partnership Agreement.

In cases where a facility shows recalcitrance toward performing corrective action measures, DENR will undertake enforcement actions. Already described previously, t hese actions can take th e form of the informal or f ormal civil actions, referral to the state Attorney General’s Office, or

referral to EPA Region 8.

3. Penalties and violations

See S ection VI.E.1 (above) for a description regarding penalties and

violations.

4. Time frames for enforcement actions

En forcement actions are conducted in accordance with the federal Enforcement Response Policy and outlined in the MOA and State Review

Framework.43

5. Enforcement resources

See Section VI.E.1 (above) for a description regarding the resources used

and addit ional potential resources for enforcement purposes.

6. Enforcement agreements

Enforcement policies put into practice by the state are conducted in accordance with the MOA, the federal Enforcement Response Policy, the State Review Framework, and as speci fied in the state/EPA Performance Partnership Agreement.44 

### SECTION VII

ESTIMATED REGULATED ACTIVITIES

(40 CFR 271.6(g))

Table 2 (below) summar izes the number of generators, transporters and permitted TSD facilities currently operating in South Dakota. The table also contains information on the quantity of hazardous waste these entities generated and handled in 2007 , where

available

. Because t he 2007 data are based upon information submitted for the 2007 Biennial Report

, the Universe values (i.e. numbe r of operations ) are based upon

information currently in the RCRAInfo database

. DENR do es not anticipate that regulatory changes will result in substantial change s in the current numbers. Some

recent discussions indicate DENR m ight receive a permit appli cation for one new hazardous waste treatment operation at a generator facility in the state within the next two to five years . However , at the time of this writing this is only a possibility.

Table 2

. Estimated Regulated Activities

- Existing

Univers e (2010) Waste Generated

(2007; tons)) Waste

Received (2007; tons)

Generators

CESQGs 990 Data not collected 0
SQGs 633 Data not collected 0
LQGs 24 750 0

Transporters 2 Data not collected Data not collected

TSD Facilities 1 57 11245 

### SECTION VIII

STATE FORMS (40 CFR 271.6(d))

As referenced in the body of this report, the following state forms are in use by the program. Federal forms the st ate uses are indicated as such; f orms unique

to the state are listed and attached as well

.

1. Regulated Waste Activity Notification

– the state uses EPA Form

8700

- 12, as revised 11/2009 . On

- line forms may be completed by the generator, printed and sent to the state for processing. These forms can be accessed through: http://denr.sd.gov/des/wm/hw/hwmainpage.aspx

2. Part A/Part B Permit applications

– the state uses EPA Form 8700

- 2 3 as the Part A permit application document for potential

hazardous waste facili ties. The Part B application is not represented by a form that can be filled out by the applicant; rather, the prospective permittee must follow applicable standards detailed in ARSD 74:28:25:01, adopting by reference 40 CFR Part 264, and provide written and technical documents required based upon the type of facility that will be constructed. The Part A permit application can be accessed through: http://denr.sd.gov/des/wm/hw/hwmainpage.aspx

3. Biennial Report

– the state uses both EPA

- designed forms and software provided free by the state of Florida. These forms can be accessed through: http://denr.sd.gov/des/wm/hw/hwmainpage.aspx

4. Uniform Hazardous Waste Manifest s

– Manifest documents used by generators, transporters and TSDFs must be federal forms

8700

- 22. These forms are only available through vendors that have been approved by EPA.

5. Hazardous Waste Pre

- Inspection Report format

– This program document represents the information all inspectors gather regarding a particular generator before conducting a hazardous waste inspection.

6. Notice of Inspection form

– This program form is typically completed at the close of each on

- si te haza rdous waste inspection. The form is signed by both the lead inspector and a company representative . A two

- part form, the original is left with the
generator.46 7. RCRAInfo Compliance Evaluation form

– Upon returning from an inspection trip, each inspector comp letes one of these program forms for each inspection conducted. The program’s RCRAInfo

IOR inputs the information from these forms into the appropriate

RCRAInfo module s

.

8. Hazardous Waste Inspection R eport format

– This program document represents a gene ral format inspectors follow to compile

information obtained from a hazardous waste inspection. This report format facilitates the consistent document ation of pertinent

information from the inspection

, including records obtained and the degree of complian ce with the state’s hazardous waste requirements.

9. DENR Penalty Policy Guidance and Worksheet

– This document

contains instructions and a worksheet staff use to calculate penalties for violations of the state’s environmental laws and regulations in formal enforcement actions . Th is penalty policy is

use d by not only the hazardous waste program, but all

environmental regulatory programs within DENR’s Environmental

Services Division.47 

# Section VIII (1)

Regulated Waste Activit y Notification

Form 8700

- 1248 

# Se ction VIII (2)

Part A Permit Application

Form 8700

- 2349 

# Section VIII (3)

Biennial Report (2009)50 

# Section VIII (4)

Uniform Hazardous Waste Manifest

Form 8700

- 22 (example)51 

# Section VIII (5)

Hazardous Waste Pre

- Inspection Report Format52 

# Section VIII (6)

Notice of Inspection Form53 

# Section VIII (7)

RCRAInfo Compliance Evaluation Form54 

# Section VIII (8)

Hazardous Waste Inspection Report Format55 

# Section VIII (9)

DENR Penalty Policy Guidance and Worksheet56 

# SECTION IX

A ppendix A

SDDENR Organizational Chart