Title 40

SECTION 272.2101

272.2101 South Dakota State-administered program: Final authorization.

§ 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) 312-6231, 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, 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.

[81 FR 41227, June 24, 2016]

---