81 FR 41222 - South Dakota: Final Authorization of State Hazardous Waste Management Program Revisions and Incorporation by Reference
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 122 (June 24, 2016)
Federal Register Volume 81, Issue 122 (June 24, 2016)
| Page Range | 41222-41229 | |
| FR Document | 2016-14298 |
[Federal Register Volume 81, Number 122 (Friday, June 24, 2016)] [Rules and Regulations] [Pages 41222-41229] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-14298] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 271 and 272 [EPA-R08-RCRA-2016-0131; FRL 9947-04-Region 8] South Dakota: Final Authorization of State Hazardous Waste Management Program Revisions and Incorporation by Reference AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. ----------------------------------------------------------------------- SUMMARY: The State of South Dakota has applied to the Environmental Protection Agency (EPA) for Final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). The EPA has determined that these changes satisfy all requirements needed to qualify for final authorization, and is authorizing the State's changes through this direct final action. The EPA uses the regulations entitled ``Approved State Hazardous Waste Management Programs'' to provide notice of the authorization status of State programs and to incorporate by reference those provisions of State statutes and regulations that will be subject to the EPA's inspection and enforcement. This rule also codifies in the regulations the approval of South Dakota's hazardous waste management program and incorporates by reference authorized provisions of the State's regulations. DATES: This rule is effective on August 23, 2016 unless the EPA receives adverse written comment by July 25, 2016. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of August 23, 2016. If the EPA receives adverse comment, it will publish a timely withdrawal of this [[Page 41223]] direct final rule in the Federal Register and inform the public that this authorization will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08- RCRA-2016-0131 by one of the following methods: 1. Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments. 2. Email: [email protected]. 3. Fax: (303) 312-6341 (prior to faxing, please notify the EPA contact listed below). 4. Mail, Hand Delivery or Courier: Christina Cosentini, Resource Conservation and Recovery Program, EPA Region 8, Mailcode 8P-R, 1595 Wynkoop Street, Denver, Colorado 80202-1129. Courier or hand deliveries are only accepted during the Regional Office's normal hours of operation. The public is advised to call in advance to verify business hours. Special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No. EPA-R08-RCRA- 2016-0131. EPA's policy is that all comments received will be included in the public docket without change and may be available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov, or email. The federal http://www.regulations.gov Web site is an ``anonymous access'' system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at: EPA Region 8, from 8 a.m. to 4 p.m., 1595 Wynkoop Street, Denver, Colorado, contact: Christina Cosentini, phone number (303) 312-6231, or the South Dakota Department of Environmental and Natural Resources, from 9 a.m. to 5 p.m., Joe Foss Building, 523 East Capitol Avenue, Pierre, South Dakota 57501, contact: Carrie Jacobson, phone number (605) 773-3153. The public is advised to call in advance to verify business hours. FOR FURTHER INFORMATION CONTACT: Christina Cosentini, Resource Conservation and Recovery Program, EPA Region 8, 1595 Wynkoop Street, Denver, Colorado 80202; phone number (303) 312-6231; Email address: [email protected]. SUPPLEMENTARY INFORMATION: I. Authorization of Revisions to South Dakota's Hazardous Waste Program A. Why are revisions to State programs necessary? States which have received final authorization from the EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the federal program. As the federal program changes, states must change their programs and ask the EPA to authorize the changes. Changes to state programs may be necessary when federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, states must change their programs because of changes to the EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273 and 279. When states make other changes to their regulations, it is often appropriate for the states to seek authorization for the changes. B. What decisions have we made in this rule? We conclude that South Dakota's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant South Dakota final authorization to operate its hazardous waste program with the changes described in the authorization application. South Dakota has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs), and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA), for all areas within the State, except for (1) all lands located within formal Indian Reservations within or abutting the State of South Dakota, including the Cheyenne River Indian Reservation, Crow Creek Indian Reservation, Flandreau Indian Reservation, Lower Brule Indian Reservation, Pine Ridge Indian Reservation, Rosebud Indian Reservation, Standing Rock Indian Reservation, Yankton Indian Reservation; (2) any land held in trust by the United States for an Indian tribe; and (3) any other land, whether on or off a reservation that qualifies as ``Indian country'' within the meaning of 18 U.S.C. 1151. New federal requirements and prohibitions imposed by federal regulations that the EPA promulgates under the authority of HSWA take effect in authorized states before they are authorized for the requirements. Thus, the EPA will implement those requirements and prohibitions in South Dakota, including issuing permits, until South Dakota is authorized to do so. C. What is the effect of this authorization decision? The effect of this decision is that a facility in South Dakota subject to RCRA will have to comply with the authorized State requirements instead of the equivalent federal requirements in order to comply with RCRA. South Dakota has enforcement responsibilities under its State hazardous waste program for violations of such program, but the EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:Conduct inspections and require monitoring, tests, analyses, or reports; Enforce RCRA requirements; suspend or revoke permits; and, Take enforcement actions regardless of whether South Dakota has taken its own actions. This action does not impose additional requirements on the regulated community because the regulations for which South Dakota is being authorized by this direct action are already effective under State law and are not changed by this action. [[Page 41224]] D. Why is the EPA using a direct final rule? The EPA is publishing this rule without a prior proposal because we view this as a noncontroversial action and anticipate no adverse comment. However, in the ``Proposed Rules'' section of this Federal Register, we are publishing a separate document that will serve as the proposed rule to authorize the State program changes if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document. E. What happens if EPA receives comments opposing this action? If the EPA receives comments that oppose this authorization, we will address all public comments in a later Federal Register. You will not have another opportunity to comment, therefore, if you want to comment on this action, you must do so at this time. F. For what has South Dakota previously been authorized? South Dakota initially received final authorization on October 19, 1984, effective November 2, 1984 (49 FR 41038) to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on: April 17, 1991, effective June 17, 1991 (56 FR 15503); September 8, 1993, effective November 8, 1993 (FR 47216); January 10, 1994, effective March 11, 1994 (59 FR 1275); July 24, 1996, effective September 23, 1996 (61 FR 38392); May 9, 2000, effective June 8, 2000 (65 FR 26755); April 23, 2004, effective May 24, 2004 (69 FR 21962); March 8, 2006, effective March 8, 2006 (71 FR 11533); and August 8, 2012, effective August 8, 2012 (77 FR 47302). G. What changes are we authorizing with this action? South Dakota submitted a final complete program revision application on May 12, 2015, seeking authorization of their changes in accordance with 40 CFR 271.21. We now make an immediate final decision, subject to receipt of written comments that oppose this action, that South Dakota's hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. Therefore, we grant South Dakota final authorization for the following program changes: 1. Program Revision Changes for Federal Rules The State of South Dakota revisions consist of regulations which specifically govern Federal hazardous waste revisions promulgated from July 1, 2007 through June 30, 2012 (RCRA Clusters XVIII-XXII), except for the final rules published on January 2, 2008 (73 FR 57; Checklist 216), October 30, 2008 (73 FR 64668, Checklist 219); December 19, 2008 (73 FR 77954, Checklist 221); January 8, 2010 (75 FR 1236, Checklist 222); and June 15, 2010 (75 FR 33712, Checklist 224). The State requirements from its Hazardous Waste Rules, Administrative Rules of South Dakota (ARSD), Article 74:28, effective October 10, 2013, are included in the chart below. ---------------------------------------------------------------------------------------------------------------- Description of federal Analogous state requirement Federal Register date and page authority ---------------------------------------------------------------------------------------------------------------- 1. NESHAP: Final Standards for 73 FR 18970; 8/8/08........................................ ARSD 74:28:25-01 Hazardous Waste Combustors and 74:28:27:01. (Phase I Final Replacement Standards and Phase II) Amendments (Checklist 217). 2. F019 Exemption for 73 FR 31756; 6/4/08........................................ ARSD 74:28:22:01. Wastewater Treatment Sludges from Auto Manufacturing Zinc Phosphating Processes (Checklist 218). 3. Academic Laboratories 73 FR 7291; 12/1/08........................................ ARSD 74:28:22:01 Generator Standards (Checklist and 74:28:23:01. 220). 4. Hazardous Waste Technical 75 FR 12989; 3/18/10....................................... ARSD 74:28:21:02, Corrections and Clarifications 74:28:22:01, (Checklist 223). 74:28:23:01, 74:28:24:01, 74:28:25:01, 74:28:28:01, 74:28:27:01, 74:28:30:01, 74:28:26:01, and 74:28:23:01. 5. Removal of Saccharin and Its 75 FR 78918; 12/17/10 ARSD 74:28:22:01 Salts from the Lists of and 74:28:30:01. Hazardous Constituents (Rule 225; No Federal checklist). 6. Academic Laboratories 75 FR 79304; 12/20/10...................................... ARSD 74:28:23:01. Generator Standards Technical Corrections (Checklist 226). 7. Revision of the Land 76 FR 34147; 6/13/11....................................... ARSD 74:28:30:01. Disposal Treatment Standards for Carbamate Wastes (Checklist 227). 8. Hazardous Waste Technical 77 FR 22229; 4/13/12....................................... ARSD 74:28:22:01 Corrections and Clarifications and 74:28:27:01. Rule (Checklist 228). ---------------------------------------------------------------------------------------------------------------- 2. State-Initiated Changes South Dakota has made amendments to its regulations that are not directly related to any of the federal rules addressed in Item G.1 above. These State-initiated changes are either conforming changes made to existing authorized provisions, or the adoption of provisions that clarify and make the State's regulations internally consistent. The State's regulations, as amended by these provisions, provide authority which remains equivalent to and no less stringent than the federal laws and regulations. These State-initiated changes are submitted under the requirements of 40 CFR 271.21(a) and include the following provisions from the Administrative Rules of South Dakota (ARSD 74:28), as amended, effective October 10, 2013: 74:28:21:01(1), 74:28:21:01(3), 74:28:21:01(6), 74:28:21:01(8), 74:28:21:01(11), 74:28:25:03, 74:28:25:04, 74:28:25:05, 74:28:28:03, 74:28:28:04, 74:28:28:05, and 74:36:11.01. H. Where are the revised State rules different from the Federal rules? South Dakota incorporates the Federal regulations by reference, thus making its hazardous waste program equivalent to the federal program in all areas. The State did not make any changes that are more stringent or broader-in-scope than the federal rules in this rulemaking. In addition, South Dakota did not change [[Page 41225]] any previously more stringent or broader-in-scope provisions to be equivalent to the federal rules. EPA will continue to implement certain federal requirements that the EPA cannot delegate to States. The requirements include: (1) Certain provisions in 40 CFR 261.39(a)(5) and 261.41 part 262, subparts E, F and H, part 263, subpart B, Sec. Sec. 264.12(a)(2), 264.71(a)(3), 264.71(d), 265.12(a)(2), 265.71(a)(3), and 265.71(d) regarding governmental oversight of exports and imports of hazardous waste; (2) manifest registry functions in 40 CFR parts 262, Subpart B; (3) 268.5, 268.6, 268.42(b), and 268.44(a)-(g) regarding land disposal restrictions; and (4) 279.82(b) regarding State petitions to allow use of used oil as a dust suppressant. I. Who handles permits after the authorization takes effect? South Dakota will issue permits for all the provisions for which it is authorized and will administer the permits it issues. The EPA will continue to administer any RCRA hazardous waste permits or portions of permits which were issued prior to the effective date of this authorization until South Dakota has equivalent instruments in place. We will not issue any new permits or new portions of permits for the provisions listed in the Table in this document after the effective date of this authorization. The EPA will continue to implement and issue permits for HSWA requirements for which South Dakota is not yet authorized. J. How does this action affect Indian Country (18 U.S.C. 1151) in South Dakota? This determination to approve South Dakota's RCRA program revisions applies to all activities in South Dakota outside of ``Indian country,'' as that term is defined in 18 U.S.C. 1151, including: 1. All lands within the exterior boundaries of the following Indian reservations located within or abutting the State of South Dakota: a. Cheyenne River Indian Reservation; b. Crow Creek Indian Reservation; c. Flandreau Indian Reservation; d. Lower Brule Indian Reservation; e. Pine Ridge Indian Reservation; f. Rosebud Indian Reservation; g. Standing Rock Indian Reservation; h. Yankton Indian Reservation; 2. Any land held in trust by the United States for an Indian tribe; and, 3. Any other areas which are ``Indian country'' within the meaning of 18 U.S.C. 1151. Under principles of Federal Indian law, states generally do not have authority to regulate in Indian country. Ala. v. Native Vill. of Venetie Tribal Gov't., 522 U.S. 520 n.1 (1998). Accordingly, in the absence of an express grant of authority to a state from Congress, EPA typically excludes Indian country from program delegations and authorizations to states. See RCRA Authorization regulations at 40 CFR 271.1(h) (``[I]n many cases States will lack authority to regulate activities on Indian lands.''). Indian country is defined by federal statute, 18 U.S.C. 1151, as: a. All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation; b. all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state; and c. all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. It is important to note that the phrase ``notwithstanding the issuance of any patent'' in 18 U.S.C. 1151(a) has been interpreted by the U.S. Supreme Court to include fee patents (also known as land titles or land deeds) issued to Indians and non-Indians alike. See, Seymour v. Superintendent, 368 U.S. 351, 358 (1962). Accordingly, fee- owned lands, whether owned by Indians or nonmembers of the relevant Indian tribe, which are within the exterior boundaries of Indian reservations, are Indian country. While 18 U.S.C. 1151 on its face relates to criminal jurisdiction, the U.S. Supreme Court has held that it is also relevant for civil regulatory jurisdiction. See, DeCoteau v. Dist. County Court, 420 U.S. 425, 427 n.2 (1975). In addition, tribal trust lands located outside of formal reservations are also Indian country as defined in 18 U.S.C. 1151. For a detailed legal discussion and explanation of this interpretation of Indian country, see Letter from Jack W. McGraw, Acting Regional Administrator, United States Environmental Agency, to Steven M. Pirner, Secretary, South Dakota Department of Environment and Natural Resources (April 2, 2002), printed in 67 FR 45684 through 45687 (July 10, 2002). II. Incorporation by Reference A. What is codification? Codification is the process of including the statutes and regulations that comprise the State's authorized hazardous waste management program into the CFR. Section 3006(b) of RCRA, as amended, allows the Environmental Protection Agency (EPA) to authorize State hazardous waste management programs. The State regulations authorized by the EPA supplant the federal regulations concerning the same matter with the result that after authorization EPA enforces the authorized regulations. Infrequently, State statutory language which acts to regulate a matter is also authorized by the EPA with the consequence that the EPA enforces the authorized statutory provision. The EPA does not authorize State enforcement authorities and does not authorize State procedural requirements. The EPA codifies the authorized State program in 40 CFR part 272 and incorporates by reference State statutes and regulations that make up the approved program which is federally enforceable in accordance with Sections 3007, 3008, 3013, and 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934 and 6973, and any other applicable statutory and regulatory provisions. B. What is the history of the codification of South Dakota's hazardous waste management program? The EPA incorporated by reference South Dakota's then authorized hazardous waste program effective March 8, 2006 (71 FR 11533). In this action, the EPA is revising Subpart QQ of 40 CFR part 272 to include the authorization revision actions described in this document. C. What decisions have we made in this rule? In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the South Dakota rules described in the amendments to 40 CFR part 272 set forth below. The EPA has made, and will continue to make, these documents available electronically through http://www.regulations.gov and in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information). This action codifies the EPA's authorization of South Dakota's base hazardous waste management program and its revisions to that program. The codification reflects the State program [[Page 41226]] that would be in effect at the time EPA's authorized revisions to the South Dakota hazardous waste management program addressed in this direct final rule become final. This action does not reopen any decision the EPA previously made concerning the authorization of the State's hazardous waste management program. The EPA is not requesting comments on its decisions published in the Federal Register documents referenced in Section I.F of this preamble concerning revisions to the authorized program in South Dakota. The EPA is incorporating by reference EPA's approval of South Dakota's hazardous waste management program by amending Subpart QQ to 40 CFR part 272. The action amends section 272.2101 and incorporates by reference South Dakota's authorized hazardous waste regulations, as amended effective October 10, 2013. Section 272.2101 also references the demonstration of adequate enforcement authority, including procedural and enforcement provisions, which provide the legal basis for the State's implementation of the hazardous waste management program. In addition, section 272.2101 references the Memorandum of Agreement, the Attorney General's Statements and the Program Description, which are evaluated as part of the approval process of the hazardous waste management program in accordance with Subtitle C of RCRA. D. What is the effect of South Dakota's codification on enforcement? The EPA retains the authority under statutory provisions, including but not limited to, RCRA sections 3007, 3008, 3013 and 7003, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions and to issue orders in all authorized states. With respect to enforcement actions, the EPA will rely on federal sanctions, federal inspection authorities, and federal procedures rather than the State analogs to these provisions. Therefore, the EPA is not incorporating by reference South Dakota's inspection and enforcement authorities nor are those authorities part of South Dakota's approved State program which operates in lieu of the federal program. 40 CFR 272.2101(c)(2) lists these authorities for informational purposes, and because the EPA also considered them in determining the adequacy of South Dakota's procedural and enforcement authorities. South Dakota's authority to inspect and enforce the State's hazardous waste management program requirements continues to operate independently under State law. E. What State provisions are not part of the codification? The public is reminded that some provisions of South Dakota's hazardous waste management program are not part of the federally authorized State program. These non-authorized provisions include: (1) Provisions that are not part of the RCRA subtitle C program because they are ``broader in scope'' than RCRA subtitle C (see 40 CFR 271.1(i)); (2) Federal rules for which South Dakota is not authorized, but which have been incorporated into the State regulations because of the way the State adopted federal regulations by reference. (3) Federal rules for which South Dakota is authorized but which were vacated by the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Cir. No. 98-1379 and 98-1379; June 27, 2014). (4) State procedural and enforcement authorities which are necessary to establish the ability of the State's program to enforce compliance but which do not supplant the Federal statutory enforcement and procedural authorities. State provisions that are ``broader in scope'' than the federal program are not incorporated by reference in 40 CFR part 272. For reference and clarity, the EPA lists in 40 CFR 272.2101(c)(3) the South Dakota statutory provisions which are ``broader in scope'' than the federal program and which are not part of the authorized program being incorporated by reference. While ``broader in scope'' provisions are not part of the authorized program and cannot be enforced by the EPA, the State may enforce such provisions under State law. South Dakota has adopted but is not authorized for certain federal final rules published between June 29, 1995 and June 15, 2010. Therefore, the federal amendments to 40 CFR parts 260, 261, 262, 263, 264, 265, 266, 268, 270 and 273 addressed by these Federal rules and included in South Dakota's adoption by reference at ARSD, sections 74:28:21:02, 74:28:22:01, 74:28:23:01, 74:28:24:01, 74:28:25:01, 74:28:28:01, 74:28:27:01, 74:28:30:01, 74:28:26:01 and 74:28:33:01, respectively, are not part of the State's authorized program included in this codification. The EPA has identified in 40 CFR 272.2101(c)(4) those federal regulations which, while adopted by South Dakota, are not authorized by EPA. F. What will be the effect of codification on Federal HSWA requirements? With respect to any requirement(s) pursuant to HSWA for which the State has not yet been authorized, and which the EPA has identified as taking effect immediately in States with authorized hazardous waste management programs, EPA will enforce those Federal HSWA standards until the State is authorized for those provisions. The codification does not affect Federal HSWA requirements for which the State is not authorized. The EPA has authority to implement HSWA requirements in all states, including states with authorized hazardous waste management programs, until the states become authorized for such requirements or prohibitions, unless the EPA has identified the HSWA requirement(s) as an optional or as a less stringent requirement of the federal program. A HSWA requirement or prohibition, unless identified by the EPA as optional or as less stringent, supersedes any less stringent or inconsistent State provision which may have been previously authorized by EPA (50 FR 28702, July 15, 1985). Some existing State requirements may be similar to the HSWA requirements implemented by the EPA. However, until the EPA authorizes those State requirements, EPA enforces the HSWA requirements and not the State analogs. III. Administrative Requirements The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). Therefore this action is not subject to review by OMB. This action authorizes and codifies State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action authorizes and codifies pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, [[Page 41227]] November 9, 2000). This action will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes and codifies State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, ``Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the ``Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Because this rule authorizes pre- existing State rules which are at least equivalent to, and no less stringent than existing federal requirements, and imposes no additional requirements beyond those imposed by State law, and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898. The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This action will be effective August 23, 2016. List of Subjects 40 CFR Part 271 Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements. 40 CFR Part 272 Environmental protection, Hazardous materials transportation, Hazardous waste, Incorporation by reference, Intergovernmental relations, Water pollution control, Water supply. Authority: This rule is issued under the authority of Sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended, 42 U.S.C. 6912(a), 6926, 6974(b). Dated: May 11, 2016. Shaun L. McGrath, Regional Administrator, Region 8. For the reasons set forth in the preamble, under the authority at 42 U.S.C. 6912(a), 6926, and 6974(b), EPA is granting final authorization under 40 CFR part 271 to the State of South Dakota for revisions to its hazardous waste program under the Resource Conservation and Recovery Act and is amending 40 CFR part 272 as follows: PART 272--APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS 0 1. The authority citation for part 272 continues to read as follows: Authority: Secs. 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b). 0 2. Revise Sec. 272.2101 to read as follows: Sec. 272.2101 South Dakota State-administered program: Final authorization. (a) Pursuant to section 3006(b) of RCRA, 42 U.S.C. 6926(b), South Dakota has final authorization for the following elements as submitted to EPA in South Dakota's base program application for final authorization which was approved by EPA effective on November 2, 1984. Subsequent program revision applications were approved effective on June 17, 1991, November 8, 1993, March 11, 1994, September 23, 1996, June 8, 2000, May 24, 2004, March 8, 2006, August 8, 2012 and August 23, 2016. (b) The State of South Dakota has primary responsibility for enforcing its hazardous waste management program. However, EPA retains the authority to exercise its inspection and enforcement authorities in accordance with sections 3007, 3008, 3013, 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934, 6973, and any other applicable statutory and regulatory provisions, regardless of whether the State has taken its own actions, as well as in accordance with other statutory and regulatory provisions. (c) State Statutes and Regulations. (1) The South Dakota regulations cited in paragraph (c)(1)(i) of this section are incorporated by reference as part of the hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq. This incorporation by reference is approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain copies of the South Dakota regulations that are incorporated by reference in this paragraph from South Dakota Legislative Research Council, 3rd Floor, State Capitol, 500 East Capitol Avenue, Pierre, South Dakota 57501, (Phone: (605) 773-3251). You may inspect a copy at EPA Region 8, 1595 Wynkoop Street, Denver, Colorado, phone number (303) 312- [[Page 41228]] 6231, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html. (i) The Binder entitled ``EPA-Approved South Dakota Regulatory Requirements Applicable to the Hazardous Waste Management Program'', dated February 2016. (ii) [Reserved] (2) EPA considered the following statutes and regulations in evaluating the State program but is not incorporating them herein for enforcement purposes: (i) South Dakota Codified Laws (SDCL), as amended, 2013 Revision, Title 1, State Affairs and Government: Chapter 1-26, Administrative Procedures and Rules, sections 1-26-1(1), 1-26-1(4), 1-26-1(8) introductory paragraph, 1-26-1(8)(a), 1-26-2, 1-26-6.6, 1-26-16 through 1-26-19, 1-26-19.1, 1-26-19.2, 1-26-21, 1-26-27, 1-26-29, 1-26-30, 1- 26-30.1, 1-26-30.2, 1-26-30.4, 1-26-31, 1-26-31.1, 1-26-31.2, 1-26- 31.4, 1-26-35 and 1-26-36; Chapter 1-27, Public Records and Files, sections 1-27-1, 1-27-3, 1-27-9(2) and 1-27-28, 1-27-31; Chapter 1-32, Executive Reorganization, section 1-32-1(1); Chapter 1-40, Department of Natural Resources, sections 1-40-4.1, 1-40-24, 1-40-31 and 1-40-34. (ii) SDCL, as amended, 2013 Revision, Title 15, Civil Procedure: Chapter 15-6, Rules of Procedure in Circuit Courts, section 15-6-24(a)- (c). (iii) SDCL, as amended, 2013 Revision, Title 19, Evidence: Chapter 19-13, Privileges, sections 19-13-2(1), 19-13-2(5), 19-13-3, 19-13-20 and 19-13-22. (iv) SDCL, as amended, 2013 Revision, Title 21, Judicial Remedies: Chapter 21-8, Injunction, section 21-8-1. (v) SDCL, as amended, 2013 Revision, Title 22, Crimes: Chapter 22- 6, Authorized Punishments, sections 22-6-1 introductory paragraph and 22-6-1(7). (vi) SDCL, as amended, 2013 Revision, Title 23, Law Enforcement: Chapter 23-5, Criminal Identification, sections 23-5-1, 23-5-10(1), 23- 5-10(3), 23-5-10(4) and 23-5-11 first sentence; Chapter 23-6, Criminal Statistics, section 23-6-4. (vii) SDCL, as amended, 2013 Revision, Title 34, Public Health and Safety: Chapter 34-21, Radiation and Uranium Resources Exposure Control, section 34-21-2(7). (viii) SDCL, as amended, 2013 Revision, Title 34A, Environmental Protection: Chapter 34A-6, Solid Waste Disposal, section 34A-6-1.3(17); Chapter 34A-10, Remedies for Protection of Environment, sections 34A- 10-1, 34A-10-2, 34A-10-5, 34A-10-11, 34A-10-14 and 34A-10-16, Chapter 34A-11, Hazardous Waste Management, sections 34A-11-1, 34A-11-2 through 34A-11-4, 34A-11-5, 34A-11-8 through 34A-11-12, 34A-11-13 through 34A- 11-16, 34A-11-17 through 34A-11-19, 34A-11-21 and 34A-11-22; Chapter 34A-12, Regulated Substance Discharges, sections 34A-12-1(8), 34A-12-4, 34A-12-6, 34A-12-8 through 34A-12-13, 34A-12-13.1 and 34A-12-14. (ix) SDCL, as amended, 2013 Revision, Title 37, Trade Regulation, Chapter 37-29, Uniform Trade Secrets Act, section 37-29-1(4). (x) Administrative Rules of South Dakota (ARSD), Article 74:08, Administrative Fees, effective October 10, 2013: Chapter 74:08:01, Fees for Records Reproduction, sections 74:08:01:01 through 74:08:01:07. (3) The following statutory provisions are broader in scope than the Federal program, are not part of the authorized program, are not incorporated by reference and are not federally enforceable: (i) SDCL, as amended, 2013 Revision, Title 34A, Environmental Protection, Chapter 34A-11, Hazardous Waste Management, sections 34A- 11-12.1, 34A-11-16.1, 34A-11-25 and 34A-11-26. (ii) [Reserved] (4) Unauthorized state amendments. (i) South Dakota has adopted but is not authorized for the following federal final rules: (A) Removal of Legally Obsolete Rules (HSWA/non-HSWA) [60 FR 33912, 06/29/95]; (B) Imports and Exports of Hazardous Waste: Implementation of OECD Council Division (HSWA--Not delegable to States) [61 FR 16290, 04/12/ 96]; (C) Clarification of Standards for Hazard Waste Land Disposal Restriction Treatment Variances (HSWA) [62 FR 64504, 12/05/97]; (D) Hazardous Waste Combustors; Revised Standards (Non-HSWA-- Vacated by the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Cir. No. 98-1379 and 98-1379; June 27, 2014) [63 FR 33782, 6/19/98]; (E) Vacatur of Organobromide Production Waste Listings (HSWA) [65 FR 14472, 03/17/00]; (F) National Environmental Performance Track Program (Non-HSWA-- terminated by EPA (74 FR 22741, 5/14/09)) [69 FR 21737, 4/22/04; as amended by 69 FR 62217, 10/25/04 and 71 FR 16862, 4/4/06]; (G) Exclusion of Oil-Bearing Secondary Materials Processed in a Gasification System to Produce Synthesis Gas (Non-HSWA--Vacated by the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Cir. No. 98-1379 and 98-1379; June 27, 2014) [73 FR 52, 1/2/08]; (H) Revisions to the Definition of Solid Waste (Non-HSWA) [73 FR 64668, 10/30/08]; (I) OECD Requirements; Export Shipments of Spent Lead Acid Batteries (Non-HSWA--Not delegable to States) [75 FR 1236, 1/8/10]; and (J) Withdrawal of the Emission Comparable Fuel Exclusion (Non- HSWA--Vacated by the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Cir. No. 98-1379 and 98-1379; June 27, 2014) [75 FR 33712, 6/15/10]. (ii) Those federal rules written under RCRA provisions that predate HSWA (non-HSWA) which the State has adopted, but for which it is not authorized, are not federally enforceable. In contrast, EPA will continue to enforce the Federal HSWA standards for which South Dakota is not authorized until the State receives specific authorization from the EPA. (5) Memorandum of Agreement. The Memorandum of Agreement between EPA Region 8 and the State of South Dakota, signed by the Secretary of the South Dakota Department of Natural Resources on December 14, 2015, and by the EPA Regional Administrator on February 18, 2016, although not incorporated by reference, is referenced as part of the authorized hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq. (6) Statement of legal authority. ``Attorney General's Statement for Final Authorization,'' signed by the Attorney General of South Dakota on May 24, 1984, and revisions, supplements and addenda to that Statement dated January 14, 1991, September 11, 1992, September 25, 1992, April 1, 1993, September 24, 1993, December 29, 1994, September 5, 1995, October 23, 1997, October 27, 1997, October 28, 1997, November 5, 1999, June 26, 2000, June 18, 2002, October 19, 2004, May 11, 2009 and May 5, 2015, although not incorporated by reference, are referenced as part of the authorized hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq. (7) Program Description. The Program Description and any other materials submitted as supplements thereto, [[Page 41229]] although not incorporated by reference, are referenced as part of the authorized hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq. 0 3. Appendix A to Part 272, is amended by revising the listing for ``South Dakota'' to read as follows: Appendix A to Part 272-State Requirements * * * * * South Dakota The regulatory provisions include: Administrative Rules of South Dakota, Article 74:28, Hazardous Waste, effective October 10, 2013, sections 74:28:21:01, 74:28:21:02, 74:28:21:03, 74:28:22:01, 74:28:23:01, 74:28:24:01, 74:28:25:01 through 74:28:25:05, 74:28:26:01, 74:28:27:01, 74:28:28:01 through 74:28:28:05, 74:28:29:01, 74:28:30:01 and 74:28:33:01; Article 74:36, Air Pollution Control Program, as of June 25, 2013, section 74:36:11:01. Copies of the South Dakota regulations that are incorporated by reference are available from South Dakota Legislative Research Council, 3rd Floor, State Capitol, 500 East Capitol Avenue, Pierre, South Dakota 57501, (Phone: (605) 773-3251). * * * * * [FR Doc. 2016-14298 Filed 6-23-16; 8:45 am] BILLING CODE 6560-50-P
![41222 Federal Register / Vol. 81, No. 122 / Friday, June 24, 2016 / Rules and Regulations
from the requirement of a tolerance under FFDCA section 408(d), such as PART 180—[AMENDED]
without any numerical limitation. the exemption in this final rule, do not
require the issuance of a proposed rule, ■ 1. The authority citation for part 180
VIII. Conclusions continues to read as follows:
the requirements of the Regulatory
Therefore, an exemption is Flexibility Act (RFA) (5 U.S.C. 601 et Authority: 21 U.S.C. 321(q), 346a and 371.
established for residues of Bacillus seq.), do not apply.
amyloliquefaciens strain PTA–4838 on ■ 2. Section 180.1336 is added to
This action directly regulates growers, subpart D to read as follows:
all food commodities. food processors, food handlers, and food
IX. References retailers, not States or tribes, nor does § 180.1336 Bacillus amyloliquefaciens
this action alter the relationships or strain PTA–4838; exemption from the
1. Priest, F., Goodfellow, M., Shute, L., and requirement of a tolerance.
Berkeley, R. 1987. ‘‘Bacillus
distribution of power and
responsibilities established by Congress An exemption from the requirement
amyloliquefaciens sp. nom., nom. rev.’’
International Journal of Systematic in the preemption provisions of FFDCA of a tolerance is established for residues
Bacteriology. 37: 69–71. http:// section 408(n)(4). As such, the Agency of Bacillus amyloliquefaciens strain
ijs.sgmjournals.org/content/37/1/ has determined that this action will not PTA–4838 in or on all food
69.full.pdf. have a substantial direct effect on States commodities.
2. https://microbewiki.kenyon.edu/ or tribal governments, on the [FR Doc. 2016–15006 Filed 6–23–16; 8:45 am]
index.php/Bacillus_subtilis.
3. Apetroaie-Constantin, C., et al. (2009).
relationship between the national BILLING CODE 6560–50–P
‘‘Bacillus subtilis and B. mojavensis government and the States or tribal
strains connected to food poisoning governments, or on the distribution of
produce the heat stable toxin amylosin.’’ power and responsibilities among the ENVIRONMENTAL PROTECTION
Journal of Applied Microbiology 106(6): various levels of government or between AGENCY
1976–1985. the Federal Government and Indian
4. Registration Decision for the New Active tribes. Thus, the Agency has determined 40 CFR Parts 271 and 272
Ingredient Bacillus amyloliquefaciens that Executive Order 13132, entitled [EPA–R08–RCRA–2016–0131; FRL 9947–
strain PTA–4838, http://
www.regulations.gov. Docket No. EPA– ‘‘Federalism’’ (64 FR 43255, August 10, 04–Region 8]
HQ–OPP–2015–0420. 1999) and Executive Order 13175,
5. http://www.fda.gov/ohrms/dockets/98fr/ entitled ‘‘Consultation and Coordination South Dakota: Final Authorization of
042399a.txt. with Indian Tribal Governments’’ (65 FR State Hazardous Waste Management
6. https://www.gpo.gov/fdsys/pkg/FR-2012- 67249, November 9, 2000) do not apply Program Revisions and Incorporation
01-06/pdf/2011-33846.pdf, Federal to this action. In addition, this action by Reference
Register (77 FR 745, January 6, 2012). does not impose any enforceable duty or AGENCY: Environmental Protection
X. Statutory and Executive Order contain any unfunded mandate as Agency (EPA).
Reviews described under Title II of the Unfunded ACTION: Direct final rule.
This action establishes an exemption Mandates Reform Act (UMRA) (2 U.S.C.
from the requirement of a tolerance 1501 et seq.). SUMMARY: The State of South Dakota has
under FFDCA section 408(d) in This action does not involve any applied to the Environmental Protection
response to a petition submitted to the technical standards that would require Agency (EPA) for Final authorization of
Agency. The Office of Management and Agency consideration of voluntary the changes to its hazardous waste
Budget (OMB) has exempted these types consensus standards pursuant to section program under the Resource
of actions from review under Executive 12(d) of the National Technology Conservation and Recovery Act (RCRA).
Order 12866, entitled ‘‘Regulatory Transfer and Advancement Act The EPA has determined that these
Planning and Review’’ (58 FR 51735, (NTTAA) (15 U.S.C. 272 note). changes satisfy all requirements needed
October 4, 1993). Because this action to qualify for final authorization, and is
XI. Congressional Review Act authorizing the State’s changes through
has been exempted from review under
Executive Order 12866, this action is Pursuant to the Congressional Review this direct final action. The EPA uses
not subject to Executive Order 13211, Act (5 U.S.C. 801 et seq.), EPA will the regulations entitled ‘‘Approved State
entitled ‘‘Actions Concerning submit a report containing this rule and Hazardous Waste Management
Regulations That Significantly Affect other required information to the U.S. Programs’’ to provide notice of the
Energy Supply, Distribution, or Use’’ (66 Senate, the U.S. House of authorization status of State programs
FR 28355, May 22, 2001) or Executive Representatives, and the Comptroller and to incorporate by reference those
Order 13045, entitled ‘‘Protection of General of the United States prior to provisions of State statutes and
Children from Environmental Health publication of the rule in the Federal regulations that will be subject to the
Risks and Safety Risks’’ (62 FR 19885, Register. This action is not a ‘‘major EPA’s inspection and enforcement. This
April 23, 1997). This action does not rule’’ as defined by 5 U.S.C. 804(2). rule also codifies in the regulations the
contain any information collections approval of South Dakota’s hazardous
List of Subjects in 40 CFR Part 180 waste management program and
subject to OMB approval under the
Paperwork Reduction Act (PRA), 44 Environmental protection, incorporates by reference authorized
U.S.C. 3501 et seq., nor does it require Administrative practice and procedure, provisions of the State’s regulations.
any special considerations under Agricultural commodities, Pesticides DATES: This rule is effective on August
Executive Order 12898, entitled and pests, Reporting and recordkeeping 23, 2016 unless the EPA receives
sradovich on DSK3GDR082PROD with RULES
‘‘Federal Actions to Address requirements. adverse written comment by July 25,
Environmental Justice in Minority Dated: June 1, 2016. 2016. The incorporation by reference of
Populations and Low-Income Jack E. Housenger,
certain publications listed in the rule is
Populations’’ (59 FR 7629, February 16, approved by the Director of the Federal
Director, Office of Pesticide Programs.
1994). Register as of August 23, 2016. If the
Since tolerances and exemptions that Therefore, 40 CFR chapter I is EPA receives adverse comment, it will
are established on the basis of a petition amended as follows: publish a timely withdrawal of this
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![Federal Register / Vol. 81, No. 122 / Friday, June 24, 2016 / Rules and Regulations 41225
any previously more stringent or authority to regulate in Indian country. II. Incorporation by Reference
broader-in-scope provisions to be Ala. v. Native Vill. of Venetie Tribal
A. What is codification?
equivalent to the federal rules. Gov’t., 522 U.S. 520 n.1 (1998).
EPA will continue to implement Accordingly, in the absence of an Codification is the process of
certain federal requirements that the express grant of authority to a state from including the statutes and regulations
EPA cannot delegate to States. The Congress, EPA typically excludes Indian that comprise the State’s authorized
requirements include: (1) Certain country from program delegations and hazardous waste management program
provisions in 40 CFR 261.39(a)(5) and into the CFR. Section 3006(b) of RCRA,
authorizations to states. See RCRA
261.41 part 262, subparts E, F and H, as amended, allows the Environmental
Authorization regulations at 40 CFR Protection Agency (EPA) to authorize
part 263, subpart B, §§ 264.12(a)(2), 271.1(h) (‘‘[I]n many cases States will
264.71(a)(3), 264.71(d), 265.12(a)(2), State hazardous waste management
lack authority to regulate activities on programs. The State regulations
265.71(a)(3), and 265.71(d) regarding
Indian lands.’’). authorized by the EPA supplant the
governmental oversight of exports and
imports of hazardous waste; (2) manifest Indian country is defined by federal federal regulations concerning the same
registry functions in 40 CFR parts 262, statute, 18 U.S.C. 1151, as: matter with the result that after
Subpart B; (3) 268.5, 268.6, 268.42(b), a. All land within the limits of any authorization EPA enforces the
and 268.44(a)–(g) regarding land authorized regulations. Infrequently,
Indian reservation under the
disposal restrictions; and (4) 279.82(b) State statutory language which acts to
jurisdiction of the United States
regarding State petitions to allow use of regulate a matter is also authorized by
Government, notwithstanding the
used oil as a dust suppressant. the EPA with the consequence that the
issuance of any patent, and, including EPA enforces the authorized statutory
I. Who handles permits after the rights-of-way running through the provision. The EPA does not authorize
authorization takes effect? reservation; State enforcement authorities and does
South Dakota will issue permits for all b. all dependent Indian communities not authorize State procedural
the provisions for which it is authorized within the borders of the United States requirements. The EPA codifies the
and will administer the permits it whether within the original or authorized State program in 40 CFR part
issues. The EPA will continue to subsequently acquired territory thereof, 272 and incorporates by reference State
administer any RCRA hazardous waste and whether within or without the statutes and regulations that make up
permits or portions of permits which limits of a state; and the approved program which is
were issued prior to the effective date of federally enforceable in accordance with
c. all Indian allotments, the Indian
this authorization until South Dakota Sections 3007, 3008, 3013, and 7003 of
titles to which have not been
has equivalent instruments in place. We RCRA, 42 U.S.C. 6927, 6928, 6934 and
extinguished, including rights-of-way 6973, and any other applicable statutory
will not issue any new permits or new
running through the same. and regulatory provisions.
portions of permits for the provisions
listed in the Table in this document It is important to note that the phrase
B. What is the history of the codification
after the effective date of this ‘‘notwithstanding the issuance of any
of South Dakota’s hazardous waste
authorization. The EPA will continue to patent’’ in 18 U.S.C. 1151(a) has been management program?
implement and issue permits for HSWA interpreted by the U.S. Supreme Court
requirements for which South Dakota is to include fee patents (also known as The EPA incorporated by reference
not yet authorized. land titles or land deeds) issued to South Dakota’s then authorized
Indians and non-Indians alike. See, hazardous waste program effective
J. How does this action affect Indian March 8, 2006 (71 FR 11533). In this
Country (18 U.S.C. 1151) in South Seymour v. Superintendent, 368 U.S.
action, the EPA is revising Subpart QQ
Dakota? 351, 358 (1962). Accordingly, fee-owned
of 40 CFR part 272 to include the
lands, whether owned by Indians or
This determination to approve South authorization revision actions described
nonmembers of the relevant Indian in this document.
Dakota’s RCRA program revisions tribe, which are within the exterior
applies to all activities in South Dakota C. What decisions have we made in this
boundaries of Indian reservations, are
outside of ‘‘Indian country,’’ as that rule?
Indian country. While 18 U.S.C. 1151 on
term is defined in 18 U.S.C. 1151,
its face relates to criminal jurisdiction, In this rule, the EPA is finalizing
including:
1. All lands within the exterior the U.S. Supreme Court has held that it regulatory text that includes
boundaries of the following Indian is also relevant for civil regulatory incorporation by reference. In
reservations located within or abutting jurisdiction. See, DeCoteau v. Dist. accordance with requirements of 1 CFR
the State of South Dakota: County Court, 420 U.S. 425, 427 n.2 51.5, the EPA is finalizing the
a. Cheyenne River Indian Reservation; (1975). incorporation by reference of the South
b. Crow Creek Indian Reservation; In addition, tribal trust lands located Dakota rules described in the
c. Flandreau Indian Reservation; amendments to 40 CFR part 272 set
outside of formal reservations are also
d. Lower Brule Indian Reservation; forth below. The EPA has made, and
Indian country as defined in 18 U.S.C.
e. Pine Ridge Indian Reservation; will continue to make, these documents
1151. For a detailed legal discussion available electronically through http://
f. Rosebud Indian Reservation;
and explanation of this interpretation of www.regulations.gov and in hard copy
g. Standing Rock Indian Reservation;
h. Yankton Indian Reservation; Indian country, see Letter from Jack W. at the appropriate EPA office (see the
sradovich on DSK3GDR082PROD with RULES
2. Any land held in trust by the McGraw, Acting Regional ADDRESSES section of this preamble for
United States for an Indian tribe; and, Administrator, United States more information).
3. Any other areas which are ‘‘Indian Environmental Agency, to Steven M. This action codifies the EPA’s
country’’ within the meaning of 18 Pirner, Secretary, South Dakota authorization of South Dakota’s base
U.S.C. 1151. Department of Environment and Natural hazardous waste management program
Under principles of Federal Indian Resources (April 2, 2002), printed in 67 and its revisions to that program. The
law, states generally do not have FR 45684 through 45687 (July 10, 2002). codification reflects the State program
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![41228 Federal Register / Vol. 81, No. 122 / Friday, June 24, 2016 / Rules and Regulations
6231, or at the National Archives and Disposal, section 34A–6–1.3(17); as amended by 69 FR 62217, 10/25/04
Records Administration (NARA). For Chapter 34A–10, Remedies for and 71 FR 16862, 4/4/06];
information on the availability of this Protection of Environment, sections (G) Exclusion of Oil-Bearing
material at NARA, call (202) 741–6030, 34A–10–1, 34A–10–2, 34A–10–5, 34A– Secondary Materials Processed in a
or go to: http://www.archives.gov/ 10–11, 34A–10–14 and 34A–10–16, Gasification System to Produce
federal-register/cfr/ibr-locations.html. Chapter 34A–11, Hazardous Waste Synthesis Gas (Non-HSWA—Vacated by
(i) The Binder entitled ‘‘EPA- Management, sections 34A–11–1, 34A– the U.S. Court of Appeals for the District
Approved South Dakota Regulatory 11–2 through 34A–11–4, 34A–11–5, of Columbia Circuit (D.C. Cir. No. 98–
Requirements Applicable to the 34A–11–8 through 34A–11–12, 34A– 1379 and 98–1379; June 27, 2014) [73
Hazardous Waste Management 11–13 through 34A–11–16, 34A–11–17 FR 52, 1/2/08];
Program’’, dated February 2016. through 34A–11–19, 34A–11–21 and (H) Revisions to the Definition of
(ii) [Reserved] 34A–11–22; Chapter 34A–12, Regulated Solid Waste (Non-HSWA) [73 FR 64668,
(2) EPA considered the following Substance Discharges, sections 34A–12– 10/30/08];
statutes and regulations in evaluating 1(8), 34A–12–4, 34A–12–6, 34A–12–8 (I) OECD Requirements; Export
the State program but is not through 34A–12–13, 34A–12–13.1 and Shipments of Spent Lead Acid Batteries
incorporating them herein for 34A–12–14. (Non-HSWA—Not delegable to States)
enforcement purposes: (ix) SDCL, as amended, 2013 [75 FR 1236, 1/8/10]; and
(i) South Dakota Codified Laws (J) Withdrawal of the Emission
Revision, Title 37, Trade Regulation,
(SDCL), as amended, 2013 Revision, Comparable Fuel Exclusion (Non-
Chapter 37–29, Uniform Trade Secrets
Title 1, State Affairs and Government: HSWA—Vacated by the U.S. Court of
Act, section 37–29–1(4).
Chapter 1–26, Administrative Appeals for the District of Columbia
(x) Administrative Rules of South
Procedures and Rules, sections 1–26– Circuit (D.C. Cir. No. 98–1379 and 98–
Dakota (ARSD), Article 74:08,
1(1), 1–26–1(4), 1–26–1(8) introductory 1379; June 27, 2014) [75 FR 33712,
Administrative Fees, effective October
paragraph, 1–26–1(8)(a), 1–26–2, 1–26– 6/15/10].
10, 2013: Chapter 74:08:01, Fees for (ii) Those federal rules written under
6.6, 1–26–16 through 1–26–19, 1–26– Records Reproduction, sections
19.1, 1–26–19.2, 1–26–21, 1–26–27, 1– RCRA provisions that predate HSWA
74:08:01:01 through 74:08:01:07. (non-HSWA) which the State has
26–29, 1–26–30, 1–26–30.1, 1–26–30.2, (3) The following statutory provisions
1–26–30.4, 1–26–31, 1–26–31.1, 1–26– adopted, but for which it is not
are broader in scope than the Federal authorized, are not federally
31.2, 1–26–31.4, 1–26–35 and 1–26–36; program, are not part of the authorized
Chapter 1–27, Public Records and Files, enforceable. In contrast, EPA will
program, are not incorporated by continue to enforce the Federal HSWA
sections 1–27–1, 1–27–3, 1–27–9(2) and reference and are not federally
1–27–28, 1–27–31; Chapter 1–32, standards for which South Dakota is not
enforceable: authorized until the State receives
Executive Reorganization, section 1–32– (i) SDCL, as amended, 2013 Revision,
1(1); Chapter 1–40, Department of specific authorization from the EPA.
Title 34A, Environmental Protection, (5) Memorandum of Agreement. The
Natural Resources, sections 1–40–4.1, Chapter 34A–11, Hazardous Waste
1–40–24, 1–40–31 and 1–40–34. Memorandum of Agreement between
Management, sections 34A–11–12.1, EPA Region 8 and the State of South
(ii) SDCL, as amended, 2013 Revision,
34A–11–16.1, 34A–11–25 and 34A–11– Dakota, signed by the Secretary of the
Title 15, Civil Procedure: Chapter 15–6,
26. South Dakota Department of Natural
Rules of Procedure in Circuit Courts,
(ii) [Reserved] Resources on December 14, 2015, and
section 15–6–24(a)-(c).
(iii) SDCL, as amended, 2013 (4) Unauthorized state amendments. by the EPA Regional Administrator on
Revision, Title 19, Evidence: Chapter (i) South Dakota has adopted but is not February 18, 2016, although not
19–13, Privileges, sections 19–13–2(1), authorized for the following federal incorporated by reference, is referenced
19–13–2(5), 19–13–3, 19–13–20 and 19– final rules: as part of the authorized hazardous
13–22. (A) Removal of Legally Obsolete Rules waste management program under
(iv) SDCL, as amended, 2013 (HSWA/non-HSWA) [60 FR 33912, subtitle C of RCRA, 42 U.S.C. 6921 et
Revision, Title 21, Judicial Remedies: 06/29/95]; seq.
Chapter 21–8, Injunction, section 21–8– (B) Imports and Exports of Hazardous (6) Statement of legal authority.
1. Waste: Implementation of OECD ‘‘Attorney General’s Statement for Final
(v) SDCL, as amended, 2013 Revision, Council Division (HSWA—Not Authorization,’’ signed by the Attorney
Title 22, Crimes: Chapter 22–6, delegable to States) [61 FR 16290, General of South Dakota on May 24,
Authorized Punishments, sections 22– 04/12/96]; 1984, and revisions, supplements and
6–1 introductory paragraph and 22–6– (C) Clarification of Standards for addenda to that Statement dated January
1(7). Hazard Waste Land Disposal Restriction 14, 1991, September 11, 1992,
(vi) SDCL, as amended, 2013 Treatment Variances (HSWA) [62 FR September 25, 1992, April 1, 1993,
Revision, Title 23, Law Enforcement: 64504, 12/05/97]; September 24, 1993, December 29, 1994,
Chapter 23–5, Criminal Identification, (D) Hazardous Waste Combustors; September 5, 1995, October 23, 1997,
sections 23–5–1, 23–5–10(1), 23–5– Revised Standards (Non-HSWA— October 27, 1997, October 28, 1997,
10(3), 23–5–10(4) and 23–5–11 first Vacated by the U.S. Court of Appeals for November 5, 1999, June 26, 2000, June
sentence; Chapter 23–6, Criminal the District of Columbia Circuit (D.C. 18, 2002, October 19, 2004, May 11,
Statistics, section 23–6–4. Cir. No. 98–1379 and 98–1379; June 27, 2009 and May 5, 2015, although not
(vii) SDCL, as amended, 2013 2014) [63 FR 33782, 6/19/98]; incorporated by reference, are
sradovich on DSK3GDR082PROD with RULES
Revision, Title 34, Public Health and (E) Vacatur of Organobromide referenced as part of the authorized
Safety: Chapter 34–21, Radiation and Production Waste Listings (HSWA) [65 hazardous waste management program
Uranium Resources Exposure Control, FR 14472, 03/17/00]; under subtitle C of RCRA, 42 U.S.C.
section 34–21–2(7). (F) National Environmental 6921 et seq.
(viii) SDCL, as amended, 2013 Performance Track Program (Non- (7) Program Description. The Program
Revision, Title 34A, Environmental HSWA—terminated by EPA (74 FR Description and any other materials
Protection: Chapter 34A–6, Solid Waste 22741, 5/14/09)) [69 FR 21737, 4/22/04; submitted as supplements thereto,
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![Federal Register / Vol. 81, No. 122 / Friday, June 24, 2016 / Rules and Regulations 41229
although not incorporated by reference, rule also codifies in the regulations the Internet. If you submit an electronic
are referenced as part of the authorized approval of Wyoming’s hazardous waste comment, the EPA recommends that
hazardous waste management program management program and incorporates you include your name and other
under subtitle C of RCRA, 42 U.S.C. by reference authorized provisions of contact information in the body of your
6921 et seq. the State’s regulations. comment and with any disk or CD–ROM
■ 3. Appendix A to Part 272, is DATES: This rule is effective on August you submit. If the EPA cannot read your
amended by revising the listing for 23, 2016 unless the EPA receives comment due to technical difficulties
‘‘South Dakota’’ to read as follows: adverse written comment by July 25, and cannot contact you for clarification,
2016. The incorporation by reference of the EPA may not be able to consider
Appendix A to Part 272–State your comment. Electronic files should
Requirements certain publications listed in the rule is
approved by the Director of the Federal avoid the use of special characters, any
* * * * * Register as of August 23, 2016. If the form of encryption, and be free of any
EPA receives adverse comment, it will defects or viruses.
South Dakota
publish a timely withdrawal of this Docket: All documents in the docket
The regulatory provisions include: are listed in the http://
direct final rule in the Federal Register
Administrative Rules of South Dakota, www.regulations.gov index. Although
Article 74:28, Hazardous Waste, effective and inform the public that this
authorization will not take effect. listed in the index, some information is
October 10, 2013, sections 74:28:21:01, not publicly available, e.g., CBI or other
74:28:21:02, 74:28:21:03, 74:28:22:01, ADDRESSES: Submit your comments,
information whose disclosure is
74:28:23:01, 74:28:24:01, 74:28:25:01 through identified by Docket ID No. EPA–R08–
74:28:25:05, 74:28:26:01, 74:28:27:01, restricted by statute. Certain other
RCRA–2016–0174 by one of the material, such as copyrighted material,
74:28:28:01 through 74:28:28:05, 74:28:29:01, following methods:
74:28:30:01 and 74:28:33:01; Article 74:36, will be publicly available only in hard
1. Federal eRulemaking Portal: http:// copy form. Publicly available docket
Air Pollution Control Program, as of June 25,
2013, section 74:36:11:01. www.regulations.gov. Follow the on-line materials are available either
Copies of the South Dakota regulations that instructions for submitting comments. electronically through http://
are incorporated by reference are available 2. Email: cosentini.christina@epa.gov. www.regulations.gov or in hard copy at:
from South Dakota Legislative Research 3. Fax: (303) 312–6341 (prior to EPA Region 8, from 8 a.m. to 4 p.m.,
Council, 3rd Floor, State Capitol, 500 East faxing, please notify the EPA contact 1595 Wynkoop Street, Denver,
Capitol Avenue, Pierre, South Dakota 57501, listed below).
(Phone: (605) 773–3251). Colorado, contact: Christina Cosentini,
4. Mail, Hand Delivery or Courier:
phone number (303) 312–6231, or the
* * * * * Christina Cosentini, Resource
Wyoming Department of Environmental
[FR Doc. 2016–14298 Filed 6–23–16; 8:45 am] Conservation and Recovery Program,
Quality, from 9 a.m. to 5 p.m., Solid and
BILLING CODE 6560–50–P EPA Region 8, Mailcode 8P–R, 1595
Hazardous Waste Division, 200 W. 17th
Wynkoop Street, Denver, Colorado
St., 2nd Floor, Cheyenne, Wyoming
80202–1129. Courier or hand deliveries
ENVIRONMENTAL PROTECTION 82002. The public is advised to call in
are only accepted during the Regional
AGENCY advance to verify business hours.
Office’s normal hours of operation. The
FOR FURTHER INFORMATION CONTACT:
public is advised to call in advance to
40 CFR Parts 271 and 272 verify business hours. Special Christina Cosentini, Resource
[EPA–R08–RCRA–2016–0174; FRL–9947– arrangements should be made for Conservation and Recovery Program,
06–Region 8] deliveries of boxed information. EPA Region 8, 1595 Wynkoop Street,
Instructions: Direct your comments to Denver, Colorado 80202; phone number
Wyoming: Final Authorization of State Docket ID No. EPA–R08–RCRA–2016– (303) 312–6231; Email address:
Hazardous Waste Management 0174. The EPA’s policy is that all cosentini.christina@epa.gov.
Program Revisions and Incorporation comments received will be included in SUPPLEMENTARY INFORMATION:
by Reference the public docket without change and I. Authorization of Revisions to
AGENCY: Environmental Protection may be available online at http:// Wyoming’s Hazardous Waste Program
Agency (EPA). www.regulations.gov, including any
personal information provided, unless A. Why are revisions to State programs
ACTION: Direct final rule. necessary?
the comment includes information
SUMMARY: The State of Wyoming has claimed to be Confidential Business States which have received final
applied to Environmental Protection Information (CBI) or other information authorization from EPA under RCRA
Agency (EPA) for final authorization of whose disclosure is restricted by statute. section 3006(b), 42 U.S.C. 6926(b), must
the changes to its hazardous waste Do not submit information that you maintain a hazardous waste program
program under the Resource consider to be CBI or otherwise that is equivalent to, consistent with,
Conservation and Recovery Act (RCRA). protected through regulations.gov, or and no less stringent than the Federal
The EPA has determined that these email. The Federal http:// program. As the Federal program
changes satisfy all requirements needed www.regulations.gov Web site is an changes, states must change their
to qualify for final authorization, and is ‘‘anonymous access’’ system, which programs and ask the EPA to authorize
authorizing the State’s changes through means the EPA will not know your the changes. Changes to state programs
this direct final action. The EPA uses identity or contact information unless may be necessary when Federal or state
the regulations entitled ‘‘Approved State you provide it in the body of your statutory or regulatory authority is
sradovich on DSK3GDR082PROD with RULES
Hazardous Waste Management comment. If you send an email modified or when certain other changes
Programs’’ to provide notice of the comment directly to the EPA without occur. Most commonly, states must
authorization status of State programs going through regulations.gov, your change their programs because of
and to incorporate by reference those email address will be automatically changes to EPA’s regulations in 40 Code
provisions of State statutes and captured and included as part of the of Federal Regulations (CFR) parts 124,
regulations that will be subject to the comment that is placed in the public 260 through 268, 270, 273 and 279.
EPA’s inspection and enforcement. This docket and made available on the When states make other changes to their
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Document Created: 2016-06-24 00:53:13
Document Modified: 2016-06-24 00:53:13
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Direct final rule. | |
| Dates | This rule is effective on August 23, 2016 unless the EPA receives adverse written comment by July 25, 2016. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of August 23, 2016. If the EPA receives adverse comment, it will publish a timely withdrawal of this direct final rule in the Federal Register and inform the public that this authorization will not take effect. | |
| Contact | Christina Cosentini, Resource Conservation and Recovery Program, EPA Region 8, 1595 Wynkoop Street, | |
| FR Citation | 81 FR 41222 | |
| CFR Citation | 40
CFR
271 40 CFR 272 | |
| CFR Associated | Environmental Protection; Administrative Practice and Procedure; Confidential Business Information; Hazardous Waste; Hazardous Waste Transportation; Indian Lands; Intergovernmental Relations; Penalties; Reporting and Recordkeeping Requirements; Hazardous Materials Transportation; Incorporation by Reference; Water Pollution Control and Water Supply |
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