Rule2024-10367
South Dakota: Final Approval of State Underground Storage Tank Program Revisions, Codification, and Incorporation by Reference
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 15, 2024
Effective
July 15, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The State of South Dakota Department of Agriculture and Natural Resources (DANR) has applied to the EPA for final approval of the changes to its Underground Storage Tank (UST) program under the Resource Conservation and Recovery Act (RCRA). The EPA has reviewed South Dakota's application and determined that South Dakota's UST program revisions satisfy all requirements needed for program approval. This action also codifies the EPA's approval of South Dakota's State program and incorporates by reference those provisions of the State's regulations that we have determined meet the requirements for approval.
Full Text
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<title>Federal Register, Volume 89 Issue 95 (Wednesday, May 15, 2024)</title>
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[Federal Register Volume 89, Number 95 (Wednesday, May 15, 2024)]
[Rules and Regulations]
[Pages 42390-42396]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-10367]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 281 and 282
[EPA-R08-UST-2023-0563; FRL-11550-02-R8]
South Dakota: Final Approval of State Underground Storage Tank
Program Revisions, Codification, and Incorporation by Reference
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The State of South Dakota Department of Agriculture and
Natural Resources (DANR) has applied to the EPA for final approval of
the changes to its Underground Storage Tank (UST) program under the
Resource Conservation and Recovery Act (RCRA). The EPA has reviewed
South Dakota's application and determined that South Dakota's UST
program revisions satisfy all requirements needed for program approval.
This action also codifies the EPA's approval of South Dakota's State
program and incorporates by reference those provisions of the State's
regulations that we have determined meet the requirements for approval.
DATES: This rule is effective on July 15, 2024 unless EPA receives
adverse written comment by June 14, 2024. Should EPA receive such
comments, it will publish a timely document either: withdrawing the
direct final publication or affirming the publication and responding to
comments. The incorporation by reference of certain publications listed
in the regulations is approved by the Director of the Federal Register,
as of July 15, 2024, in accordance with 5 U.S.C. 552(a) and 1 CFR part
51.
ADDRESSES: Submit your comments by one of the following methods:
Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
online instructions for submitting comments.
Email: <a href="/cdn-cgi/l/email-protection#e3858a9799848a81818c8d90cd8986858591869aa3869382cd848c95"><span class="__cf_email__" data-cfemail="ed8b8499978a848f8f82839ec387888b8b9f8894ad889d8cc38a829b">[email protected]</span></a>.
Fax: (303) 312-6341 (prior to faxing, please notify the EPA contact
listed below).
Mail, hand delivery or courier: Jeff Fitzgibbons, Resource
Conservation and Recovery Program, EPA Region 8, Mailcode 8LCR-RC, 1595
Wynkoop Street, Denver, Colorado 80202-1129. Courier or hand deliveries
are only accepted during the Regional Office's normal hours of
operation. The public is advised to call in advance to verify business
hours. Special arrangements should be made for deliveries of boxed
information.
Instructions: EPA must receive your comments by June 14, 2024.
Direct your comments to Docket ID No. EPA-R08-UST-2023-0563; FRL-11550-
02-R8. The EPA's policy is that all comments received will be included
in the public docket without change and may be available online at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or email. The Federal <a href="https://www.regulations.gov">https://www.regulations.gov</a>
website is an ``anonymous access'' system, which means the EPA will not
know your identity or contact information unless you provide it in the
body of your comment. If you send an email comment directly to the EPA
without going through <a href="https://www.regulations.gov">https://www.regulations.gov</a>, your email address
will be automatically captured and included as part of the comment that
is placed in the public docket and made available on the internet. If
you submit an electronic comment, the EPA recommends that you include
your name and other contact information in the body of your comment
with any CD you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption and be free of
any defects or viruses.
Docket: All documents in the docket are listed in the <a href="https://www.regulations.gov">https://www.regulations.gov</a> index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available electronically
through <a href="https://www.regulations.gov">https://www.regulations.gov</a>. For alternative access to docket
materials, please contact the person
[[Page 42391]]
identified in the FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Jeff Fitzgibbons, Resource
Conservation and Recovery Program, EPA Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129; telephone number (303) 312-6633; email
address: <a href="/cdn-cgi/l/email-protection#a4c2cdd0dec3cdc6c6cbcad78acec1c2c2d6c1dde4c1d4c58ac3cbd2"><span class="__cf_email__" data-cfemail="3c5a5548465b555e5e53524f1256595a5a4e59457c594c5d125b534a">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Approval of Revisions to South Dakota's Underground Storage Tank
Program
EPA is publishing this rule without prior proposal because the EPA
views this as a noncontroversial action and does not anticipate adverse
comments. However, in the ``Proposed Rules'' section of this Federal
Register, EPA is publishing a separate document that will serve as a
proposal to authorize the revision should the EPA receive adverse
comment. Unless EPA receives adverse written comments during the review
and comment period, the decision to authorize South Dakota's UST
program revision will take effect as provided below. The State's
federally authorized and codified UST program, as revised pursuant to
this action, will remain subject to the EPA's inspection and
enforcement authorities under RCRA and other applicable statutory and
regulatory provisions.
A. Why are revisions to State programs necessary?
States which have received final approval from the EPA under RCRA
section 9004(b) of RCRA, 42 U.S.C. 6991c(b), must maintain an
underground storage tank program that is equivalent to, consistent
with, and no less stringent than the Federal program. As the Federal
program changes, States must change their programs to comply with the
updated regulations and submit these revisions to the EPA for approval.
Changes to State programs may be necessary when Federal or State
statutory or regulatory authority is modified or when certain other
changes occur. Most commonly, States must change their programs because
of changes to EPA's regulations in 40 Code of Federal Regulations (CFR)
part 280.
B. What decisions has the EPA made in this rule?
On October 24, 2023, the State of South Dakota submitted a final
complete program revision application seeking authorization of changes
to its UST program that correspond to the EPA final rule promulgated on
July 15, 2015 (80 FR 41566), which revised the 1988 UST regulations and
the 1988 State program approval (SPA) regulations (2015 Federal
Revisions). As required by 40 CFR 281.20, the State Application
contains the following: a transmittal letter from the Governor
requesting approval, a description of the program and operating
procedures, a demonstration of the State's procedures to ensure
adequate enforcement, a Memorandum of Agreement outlining the roles and
responsibilities of the EPA and the implementing agency, a statement of
certification from the Attorney General, and copies of all relevant
State statutes and regulations. The EPA has reviewed South Dakota's
application to revise its authorized program and determined that the
revisions to South Dakota's UST program are equivalent to, consistent
with, and no less stringent than the corresponding Federal requirements
in subpart C of 40 CFR part 281, and that the South Dakota program
provides for adequate enforcement of compliance (40 CFR 281.11(b)).
Therefore, we grant South Dakota final authorization to operate its UST
program with the changes described in the program revision application
and as outlined below in section I.G. of this document.
C. What is the effect of this authorization decision?
This action does not impose additional requirements on the
regulated community because the regulations being approved by this rule
are already in effect in the State of South Dakota and are not changed
by this action. This action merely approves the existing State
regulations as meeting the Federal requirements and renders them
federally enforceable.
D. Why is EPA using a direct final rule?
The EPA is publishing this direct final rule without a prior
proposed rule because we view this as a noncontroversial action and we
anticipate no adverse comment. South Dakota received comments during
its comment period when the rules and regulations in this document were
being considered and were proposed at the State level. All comments
were addressed at public hearing and/or reflected in the adopted
regulations.
E. What happens if the EPA receives comments that oppose this action?
If EPA receives comments that oppose this approval, the EPA will
withdraw this direct final rule by publishing a document in the Federal
Register before it becomes effective. The EPA will base any further
decision on approval of the State Application after considering all
comments received during the comment period. The EPA will then address
all public comments in a later final rule. You may not have another
opportunity to comment. If you want to comment on this approval, you
must do so at this time.
F. For what has South Dakota previously been authorized?
On May 15, 1995, the EPA finalized a rule approving the UST program
that South Dakota proposed to administer in lieu of the Federal UST
program. On May 15, 1995, EPA codified the approved South Dakota
program that is subject to EPA's inspection and enforcement authorities
under RCRA sections 9005 and 9006, 42 U.S.C. 6991d and 6991e, and other
applicable statutory and regulatory provisions.
G. What changes is EPA authorizing with this action?
In order to be approved, each State program application must meet
the general requirements in 40 CFR 281.11, and specific requirements in
40 CFR subparts B, C, and D. This also is true for proposed revisions
to approved State programs.
As more fully described below, the State has made the changes to
its approved UST program to reflect the 2015 Federal Revisions. The EPA
is approving the State's changes because they are equivalent to,
consistent with, and no less stringent than the Federal UST program and
because the EPA has confirmed that the South Dakota UST program will
continue to provide for adequate enforcement of compliance as described
in 40 CFR 281.11(b) and part 281, subpart D after this approval.
The South Dakota Department of Agriculture and Natural Resources
(Department) is the lead implementing agency for the UST program in
South Dakota, except for (1) all lands located within formal Indian
Reservations within or abutting the State of South Dakota, including
the Cheyenne River Indian Reservation, Crow Creek Indian Reservation,
Flandreau Indian Reservation, Lower Brule Indian Reservation, Pine
Ridge Indian Reservation, Rosebud Indian Reservation, Sisseton Wahpeton
Indian Reservation, Standing Rock Indian Reservation, Yankton Indian
Reservation; (2) any land held in trust by the United States for an
Indian Tribe; and (3) any other land, whether on or off a reservation
that qualifies as ``Indian country'' within the meaning of 18 U.S.C.
1151.
The Department continues to have broad statutory authority to
regulate the installation, operation, maintenance, and closure of USTs,
as well as UST releases under South Dakota Codified
[[Page 42392]]
Laws (SDCL), Title 34A Environmental Protection, Chapter 2 Water
Pollution Control, section 99 Underground Storage Tanks (2021) and
selected provisions from SDCL sections 34A-12 Regulated Substance
Discharges (2021), 34A-93 Implementation of and Compliance with Certain
Federal Energy Acts (2009), and 34A-98 Underground Storage Tanks
(2021). The South Dakota UST Program gets its enforcement authority
from the powers of the Department found in SDCL sections 34A-12-3
through 34A-12-12 and 34A-13-4. Under 34A-6-1.20, an employee or agent
of the Department has the authority to enter and inspect any property
premises or place where regulated substances are stored at any
reasonable time. In the case of a release, SDCL provisions 34A-2-99(4)
and 34A-13-4 provide employees or agents of the Department the
authority to take such action is necessary, including the authority to
enter any property, premises or place where an UST is located for
inspection, in order to conduct sampling, and to have access to
records. SDCL provision 34A-2-99(4) provides the Department with
rulemaking authority for corrective action. Notice of violation may be
issued, and penalties for noncompliance with South Dakota's UST Act may
be assessed under SDCL section 34A-2-93. The State also includes
requirements for delivery prohibitions in the event of noncompliance as
described in the Administrative Rules of South Dakota (ARSD) section
75:56:01:56.
Specific authorities to regulate the installation, operation,
maintenance, and closure of USTs, as well as UST releases, are found
under SDCL 34A-2-99, in addition to the regulatory provisions of
Administrative Rules of South Dakota (ARSD) Chapter 74:56:01
Underground Storage Tanks, as amended effective April 19, 2021 and ARSD
Chapter 74:56:02 Financial Responsibility, as amended effective April
19, 2021. The aforementioned statutory and regulatory sections satisfy
the requirements of 40 CFR 281.40 and 281.41.
Through a Memorandum of Agreement between the State of South Dakota
and the EPA, signed by the EPA Region 8 Regional Administrator October
15, 2023, the State maintains procedures for receiving and ensuring
proper consideration of information about violations submitted by the
public. The State agrees to comply with public participation provisions
contained in 40 CFR 281.42, including the provisions that the State
will investigate and provide responses to citizen complaints and not
oppose citizen intervention when permissive intervention is allowed by
statute, rule, or regulation. South Dakota has met the public
participation requirements found in 40 CFR 281.42.
To qualify for final approval, revisions to a State's program must
be ``equivalent to, consistent with, and no less stringent'' than the
2015 Federal Revisions. In the 2015 Federal Revisions the EPA addressed
UST systems deferred in the 1988 UST regulations, and added, among
other things, new operation and maintenance requirements; secondary
containment requirements for new and replaced tanks and piping;
operator training requirements; and a requirement to ensure UST system
compatibility before storing certain biofuel blends. In addition, the
EPA removed past deferrals for emergency generator tanks, field
constructed tanks, and airport hydrant systems. The EPA analyzes
revisions to approved State programs pursuant to the criteria found in
40 CFR 281.30 through 281.39.
The Department has revised its regulations to help ensure that the
State's UST program revisions are equivalent to, consistent with, and
no less stringent than the 2015 Federal Revisions. In particular, the
Department has amended the Administrative Rules of South Dakota to
incorporate the revised requirements of 40 CFR part 280, including the
requirements added by the 2015 Federal Revisions. The State, therefore,
has ensured that the criteria found in 40 CFR 281.30 through 281.38 are
met.
Section 281.39 describes the State operator training requirements
that must be met in order to be considered equivalent to, consistent
with, and no less stringent than Federal requirements. South Dakota has
promulgated and is implementing its own operator training provisions
under Administrative Rules of South Dakota section 74:56:01:38:01.
After a thorough review, the EPA has determined that South Dakota's
operator training requirements are equivalent to, consistent with, and
no less stringent than Federal requirements.
As part of the State Application, the Attorney General of South
Dakota certified that the laws of the State of South Dakota provide
adequate authority to carry out the ``no less stringent'' technical
requirements submitted by the State in order to meet the criteria in 40
CFR 281.30 through 281.39. The EPA is relying on this certification in
addition to the analysis submitted by the State in making our
determination.
For further information on the EPA's analysis of the State's
application, see the chart in the Technical Support Document (TSD)
contained in the docket for this rulemaking.
H. Where are the revised State Rules different from the Federal Rules?
Broader in Scope Provisions
Where an approved State program has a greater scope of coverage
than required by Federal law, the additional coverage is not part of
the federally approved program and are not federally enforceable (40
CFR 281.12(a)(3)(ii)). South Dakota's State program does not include
any regulatory requirements that are considered broader in coverage
than the Federal program.
More Stringent Provisions
Where an approved State program includes requirements that are
considered more stringent than required by Federal law, the more
stringent requirements become part of the federally approved program
(40 CFR 281.12(a)(3)(i)).
We consider the following State requirements to be more stringent
than the Federal requirements:
Under Administrative Rules of South Dakota (ARSD) 74:56:01
South Dakota does not adopt the extensive Energy Policy Act (EPAct)
changes to Sec. 280.10(a), which subjects the listed types of tanks to
different regulation under the Federal program based on the tank's
installation date within the unnumbered paragraph following
74:56:01:03(6). As a result, South Dakota subjects UST systems with
field-constructed tanks to full regulation under the ``all owners or
operators of an UST system'' language of 74:56:01:03 introductory
paragraph and airport hydrant fuel distribution systems and tanks
installed before the effective date of the rule [Sec.
280.10(a)(1)(ii)] to all the requirements of chapter 74:56:01, making
the State more stringent than Federal.
South Dakota does not have an analog to Federal provision Sec.
280.10(c) which allows many UST systems to be excluded from the
regulations of Federal part 280. The absence of a State analog to this
Federal provision results in more tanks being subject to full
regulation, which is more stringent than Federal.
At ARSD 74.56.01:11(3) South Dakota requires the submittal of plans
and specifications of both new and upgraded systems for approval at
least 30 days prior to installation for the State to determine
installed or upgraded systems meet minimum requirements. This
[[Page 42393]]
additional State-only approval is more stringent than the Federal.
Within the second unnumbered paragraph after 74:56:01:12(5) South
Dakota requires an additional State-only notification in the event of
any changes of information stated in a certification of compliance
form. The additional notification requirement is more stringent than
Federal, which does not include a similar notification.
South Dakota does not have an analog to Federal provision Sec.
280.43(h) which allows UST system owners and operators to use
statistical inventory reconciliation as an alternative method to detect
releases. The absence of a State analog to this Federal provision
results in the State being more stringent as it does not allow for this
alternative method to be used.
At section 74:56:01:40(2) South Dakota does not adopt the
exceptions to the reporting of suspected releases included in Federal
Sec. 280.50(b)(1) through (3). As a result, South Dakota's regulations
are more stringent than Federal because the State continues to require
the reporting of releases in circumstances where, otherwise, under the
Federal program, they would not be required to report.
Within the introductory paragraph of section 74:56:01:47(3) South
Dakota requires the preparation and submittal of a free product removal
report within 30 days, unlike the 45-day requirement in the Federal
provision at Sec. 280.64 introductory text. South Dakota's shorter
timeline makes the State more stringent than Federal.
I. How does this action affect Indian Country (18 U.S.C. 1151) in South
Dakota?
South Dakota is not authorized to carry out its UST program in
Indian country, as defined in 18 U.S.C. 1151. This includes, but is not
limited to:
1. Lands within the exterior boundaries of the following Indian
Reservations located within or abutting the State of South Dakota:
a. Cheyenne River Indian Reservation,
b. Crow Creek Indian Reservation,
c. Flandreau Indian Reservation,
d. Lower Brule Indian Reservation,
e. Pine Ridge Indian Reservation,
f. Rosebud Indian Reservation,
g. Sisseton Wahpeton Indian Reservation,
h. Standing Rock Indian Reservation,
i. Yankton Indian Reservation;
2. Any land held in trust by the U.S. for an Indian Tribe, and
3. Any other land, whether on or off a reservation that qualifies
as Indian country within the meaning of 18 U.S.C. 1151.
Therefore, this program revision does not extend to Indian country
where EPA will continue to implement and administer the UST program in
these lands. See 40 CFR 281.12(a)(2).
II. Codification
A. What is codification?
Codification is the process of placing a State's statutes and
regulations that comprise the State's authorized UST program into the
CFR. Section 9004(b) of RCRA, as amended, allows the EPA to approve
State UST programs to operate in lieu of the Federal program. The EPA
codifies its authorization of State programs in 40 CFR part 282 and
incorporates by reference State regulations that the EPA will enforce
under sections 9005 and 9006 of RCRA and any other applicable statutory
provisions. The incorporation by reference of State authorized programs
in the CFR should substantially enhance the public's ability to discern
the current status of the approved State program and State requirements
that can be federally enforced. This effort provides clear notice to
the public of the scope of the approved program in each State.
B. What is the history of codification of South Dakota's UST program?
EPA incorporated by reference South Dakota's then approved UST
program effective May 15, 1995 (60 FR 14334; March 16, 1995). Through
this action, the EPA is revising 40 CFR 282.91 to include the approval
revision actions.
C. What codification decisions have we made in this rule?
In this rule, we are finalizing the Federal regulatory text that
incorporates by reference the federally authorized South Dakota UST
Program. In accordance with the requirements of 1 CFR 51.5, we are
finalizing the incorporation by reference of the South Dakota rules
described in the amendments to 40 CFR part 282 set forth below. The EPA
has made, and will continue to make, these documents generally
available through <a href="https://www.regulations.gov">https://www.regulations.gov</a> and/or in hard copy at
the EPA Region 8 office (see the ADDRESSES section of this preamble for
more information).
One purpose of this Federal Register document is to codify South
Dakota's approved UST program. The codification reflects the State
program that would be in effect at the time the EPA's approved
revisions to the South Dakota UST program addressed in this direct
final rule become final. If, however, the EPA receives substantive
comment on the proposed rule, then this codification will not take
effect, and the State rules that are approved after the EPA considers
public comment will be codified instead. By codifying the approved
South Dakota program and by amending the CFR, the public will more
easily be able to discern the status of the federally approved
requirements of the South Dakota program.
The EPA is incorporating by reference the South Dakota approved UST
program in 40 CFR 282.91. Section 282.91(d)(1)(i)(A) incorporates by
reference for enforcement purposes the State's regulations. Section
282.91 also references the Attorney General's Statement, Demonstration
of Adequate Enforcement Procedures, the Program Description, and the
Memorandum of Agreement, which are approved as part of the UST program
under subtitle I of RCRA.
D. What is the effect of EPA's codification of the federally authorized
State UST program on enforcement?
The EPA retains the authority under sections 9003(h), 9005 and 9006
of subtitle I of RCRA, 42 U.S.C. 6991b(h), 6991d and 6991e, and other
applicable statutory and regulatory provisions to undertake corrective
action, inspections, and enforcement actions, and to issue orders in
approved States. If the EPA determines it will take such actions in
South Dakota, the EPA will rely on Federal sanctions, Federal
inspection authorities, and other Federal procedures rather than the
State analogs. Therefore, though the EPA has approved the State
procedures listed in 40 CFR 282.91(d)(1)(ii), the EPA is not
incorporating by reference South Dakota's procedural and enforcement
authorities.
E. What State provisions are not part of the codification?
The public also needs to be aware that some provisions of the
State's UST program are not part of the federally approved State
program. Such provisions are not part of the RCRA subtitle I program
because they are ``broader in coverage'' than subtitle I of RCRA.
Section 281.12(a)(3)(ii) states that where an approved State program
has provisions that are broader in coverage than the Federal program,
those provisions are not a part of the federally approved program. As a
result, State provisions which are ``broader in coverage'' than the
Federal program are not incorporated by reference for purposes of
enforcement in part 282. Section 282.91(d)(1)(iii) lists for reference
and clarity the South Dakota statutory and regulatory provisions
[[Page 42394]]
which are ``broader in coverage'' than the Federal program and which
are not, therefore, part of the approved program being codified.
Provisions that are ``broader in coverage'' cannot be enforced by EPA;
the State, however, will continue to implement and enforce such
provisions under State law.
III. Statutory and Executive Order (E.O.) Reviews
This action only applies to South Dakota's UST Program requirements
pursuant to RCRA section 9004 and imposes no requirements other than
those imposed by State law. It complies with applicable E.O.s and
statutory provisions as follows:
A. Executive Order 12866 Regulatory Planning and Review, Executive
Order 13563: Improving Regulation and Regulatory Review
The Office of Management and Budget (OMB) has exempted this action
from the requirements of Executive Order 12866 (58 FR 51735, Oct. 4,
1993) and 13563 (76 FR 3821, Jan. 21, 2011). This action approves and
codifies State requirements for the purpose of RCRA section 9004 and
imposes no additional requirements beyond those imposed by State law.
Therefore, this action is not subject to review by OMB.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is not an Executive Order 13771 (82 FR 9339, February
3, 2017) regulatory action because actions such as this final approval
of South Dakota's revised underground storage tank program under RCRA
are exempted under Executive Order 12866. Accordingly, I certify that
this action will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.).
C. Unfunded Mandates Reform Act and Executive Order 13175: Consultation
and Coordination With Indian Tribal Governments
Because this action approves and codifies pre-existing requirements
under State law and does not impose any additional enforceable duty
beyond that required by State law, it does not contain any unfunded
mandate or significantly or uniquely affect small governments, as
described in the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-
1538). For the same reason, this action also does not significantly or
uniquely affect the communities of Tribal governments, as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000).
D. Executive Order 13132: Federalism
This action will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132 (64 FR
43255, Aug. 10, 1999), because it merely approves and codifies State
requirements as part of the State RCRA Underground Storage Tank Program
without altering the relationship or the distribution of power and
responsibilities established by RCRA.
E. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
This action also is not subject to Executive Order 13045 (62 FR
19885, Apr. 23, 1997), because it is not economically significant and
it does not make decisions based on environmental health or safety
risks.
F. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211 (66 FR 28355, May
22, 2001) because it is not a ``significant regulatory action'' as
defined under Executive Order 12866.
G. National Technology Transfer and Advancement Act
Under RCRA section 9004(b), the EPA grants a State's application
for approval as long as the State meets the criteria required by RCRA.
It would thus be inconsistent with applicable law for the EPA, when it
reviews a State approval application, to require the use of any
particular voluntary consensus standard in place of another standard
that otherwise satisfies the requirements of RCRA. Thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
H. Executive Order 12988: Civil Justice Reform
As required by section 3 of Executive Order 12988 (61 FR 4729,
February 7, 1996), in issuing this rule, the EPA has taken the
necessary steps to eliminate drafting errors and ambiguity, minimize
potential litigation, and provide a clear legal standard for affected
conduct.
I. Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
The EPA has complied with Executive Order 12630 (53 FR 8859, Mar.
15, 1988) by examining the takings implications of the rule in
accordance with the ``Attorney General's Supplemental Guidelines for
the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued
under the Executive order.
J. Paperwork Reduction Act
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.). ``Burden'' is defined at 5 CFR 1320.3(b).
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States. Because this rule approves pre-
existing State rules which are at least equivalent to, consistent with,
and no less stringent than existing Federal requirements, and imposes
no additional requirements beyond those imposed by State law, and there
are no anticipated significant adverse human health or environmental
effects, the rule is not subject to Executive Order 12898.
L. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801-808, generally provides
that before a rule may take effect, the agency promulgating the rule
must submit a rule report, which includes a copy of the rule, to each
House of the Congress and to the Comptroller General of the United
States. The EPA will submit a report containing this document and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication in the Federal Register. A major rule cannot take effect
until 60 days after it is published in the Federal Register. This
action is not a ``major rule'' as defined by 5 U.S.C. 804(2);
[[Page 42395]]
however, this action will be effective July 15, 2024 because it is a
direct final rule.
Authority: This rule is issued under the authority of sections
2002(a), 7004(b), and 9004, 9005 and 9006 of the Solid Waste
Disposal Act, as amended, 42 U.S.C. 6912(a), 6974(b), and 6991c,
6991d, and 6991e.
List of Subjects in 40 CFR Parts 281 and 282
Environmental protection, Administrative practice and procedure,
Hazardous substances, Incorporation by reference, State program
approval, Underground storage tanks.
Dated: April 30, 2024.
KC Becker,
Regional Administrator, Region 8.
For the reasons set forth in the preamble, EPA is amending 40 CFR
part 282 as follows:
PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS
0
1. The authority citation for part 282 continues read as follows:
Authority: 42 U.S.C. 6912, 6991c, 6991d, and 6991e.
0
2. Revise Sec. 282.91 to read as follows:
Sec. 282.91 South Dakota State-Administered Program.
(a) The State of South Dakota is approved to administer and enforce
an underground storage tank program in lieu of the Federal program
under subtitle I of the Resource Conservation and Recovery Act of 1976
(RCRA), as amended, 42 U.S.C. 6991 et seq. The State's program, as
administered by the South Dakota Department of Agriculture and Natural
Resources (Department), was approved by EPA pursuant to 42 U.S.C. 6991c
and part 281 of this chapter. On March 16, 1995, EPA published the
notice of final determination approving the South Dakota underground
storage tank base program effective May 15, 1995. A subsequent program
revision application was approved by EPA and became effective on July
15, 2024.
(b) South Dakota has primary responsibility for administering and
enforcing its federally approved underground storage tank program.
However, EPA retains the authority to exercise its corrective action,
inspection, and enforcement authorities under sections 9003(h), 9005,
and 9006 of subtitle I of RCRA, 42 U.S.C. 6991b(h), 6991d and 6991e, as
well as under any other applicable statutory and regulatory provisions.
(c) To retain program approval, South Dakota must revise its
approved program to adopt new changes to the Federal subtitle I program
which make it more stringent, in accordance with section 9004 of RCRA,
42 U.S.C. 6991c, and 40 CFR part 281, subpart E. If South Dakota
obtains approval for the revised requirements pursuant to section 9004
of RCRA, 42 U.S.C. 6991c, the newly approved statutory and regulatory
provisions will be added to this subpart and notice of any change will
be published in the Federal Register.
(d) South Dakota has final approval for the following elements of
its program application originally submitted to EPA and approved
effective May 15, 1995, and the program revision application approved
by EPA effective on July 15, 2024:
(1) State statutes and regulations--(i) Incorporation by reference.
The South Dakota provisions cited in this paragraph (d)(1)(i) are
incorporated by reference as part of the underground storage tank
program under subtitle I of RCRA, 42 U.S.C. 6991 et seq. The Director
of the Federal Register approves this incorporation by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain
copies of the South Dakota statutes and regulations that are
incorporated by reference in this paragraph (d)(1)(i) from South Dakota
Legislative Research Council, 3rd Floor, State Capitol, 500 East
Capitol Avenue, Pierre, South Dakota 57501-5070; Phone number: 605-773-
3251; email: <a href="/cdn-cgi/l/email-protection#3b7769787b485f575e5c5248575a4f4e495e155c544d"><span class="__cf_email__" data-cfemail="91ddc3d2d1e2f5fdf4f6f8e2fdf0e5e4e3f4bff6fee7">[email protected]</span></a>; website: <a href="https://sdlegislature.gov">https://sdlegislature.gov</a>.
(A) You may inspect all approved material at EPA Region 8, 1595
Wynkoop Street, Denver, Colorado 80202, phone number 303-312-6633, or
the National Archives and Records Administration (NARA). For
information on the availability of the material at NARA, call 202-741-
6030 or go to <a href="https://www.archives.gov/federal-register/cfr/ibr-locations">https://www.archives.gov/federal-register/cfr/ibr-locations</a>.
(B) EPA-Approved South Dakota Statutory and Regulatory Requirements
Applicable to the Underground Storage Tank Program, dated June 2022.
(ii) Legal basis. EPA evaluated the following statutes and
regulations which provide the legal basis for the State's
implementation of the underground storage tank program, but they are
not being incorporated by reference and do not replace Federal
authorities:
(A) The statutory provisions include:
(1) South Dakota Codified Laws (2021), Title 34A Environmental
Protection, Chapter 2 Water Pollution Control: Sections 98 Underground
Storage Tanks--Definitions and 99 Underground Storage Tanks--
Promulgation of rules--Violation.
(2) South Dakota Codified Laws (2011), Title 34A Environmental
Protection, Chapter 6 Solid Waste Management: selected sections.
(3) South Dakota Codified Laws (2021), Title 34A Environmental
Protection, Chapter 10 Remedies for Protection of Environment: Sections
1 through 17.
(4) South Dakota Codified Laws (2021), Title 34A Environmental
Protection, Chapter 12 Regulated Substance Discharges: Sections 1
through 16.
(5) South Dakota Codified Laws (2021), Title 34A Environmental
Protection, Chapter 13 Petroleum Inspection and Release Compensation:
Sections 1, 4, 5, and 20.
(6) South Dakota Codified Laws (2021), Title 34A Environmental
Protection, Chapter 17 Uniform Environmental Covenants Act: Sections 1
through 14.
(7) South Dakota Codified Laws (2009), Title 34A Environmental
Protection, Chapter 93 Implementation of and Compliance with Certain
Federal Energy Acts: Sections 1 through 8.
(8) South Dakota Codified Laws (2021), Title 1 State Affairs and
Government, Chapter 50 State Emergency Response Commission: Sections 1
through 11.
(9) South Dakota Codified Laws (1969), Title 15 Civil Procedure,
Chapter 6 Rules of Procedure in Circuit Courts: Section 24(a)
Intervention of Right.
(B) The regulatory provisions include:
(1) Administrative Rules of South Dakota (April 19, 2021), Title 74
Department of Agriculture and Natural Resources, Article 74:56 Storage
facilities--remediation: Chapter 74:56:01 Underground Storage Tanks,
Section 74:56:01:56 Failure to comply.
(2) [Reserved]
(iii) Provisions not incorporated by reference. None of the
identified statutes and rules applicable to the South Dakota
underground storage tank program are broader in coverage than the
Federal program; therefore, all provisions are incorporated by
reference.
(2) Statement of legal authority. The Attorney General's
Certification, signed by the Attorney General for the State of South
Dakota on September 2, 2022, though not incorporated by reference, is
referenced as part of the approved underground storage tank program
under subtitle I of RCRA, 42 U.S.C. 6991 et seq.
(3) Demonstration of procedures for adequate enforcement. The
``Demonstration of Procedures for
[[Page 42396]]
Adequate Enforcement'' submitted as part of the final program
application on October 24, 2023, though not incorporated by reference,
is referenced as part of the approved underground storage tank program
under subtitle I of RCRA, 42 U.S.C. 6991 et seq.
(4) Program description. The program description and any other
material submitted as part of the final program revision application on
October 24, 2023, though not incorporated by reference, are referenced
as part of the approved underground storage tank program under subtitle
I of RCRA, 42 U.S.C. 6991 et seq.
(5) Memorandum of Agreement. The Memorandum of Agreement between
EPA Region 8 and the South Dakota Department of Agriculture and Natural
Resources, signed by the EPA Regional Administrator on October 15,
2023, though not incorporated by reference, is referenced as part of
the approved underground storage tank program under subtitle I of RCRA,
42 U.S.C. 6991 et seq.
0
3. Amend appendix A to part 282 by revising the entry for ``South
Dakota'' to read as follows:
Appendix A to Part 282--State Requirements Incorporated by Reference in
Part 282 of the Code of Federal Regulations
* * * * *
South Dakota
(a) The statutory provisions include:
(1) South Dakota Codified Laws (2021), Title 34A Environmental
Protection, Chapter 2 Water Pollution Control: Section 98
Underground Storage Tanks: section 34A-2-98(5) Definition
``underground storage tank.''
(2) [Reserved]
(b) The regulatory provisions include:
(1) Administrative Rules of South Dakota (April 19, 2021), Title
74 Department of Agriculture and Natural Resources, Article 56
Storage facilities--remediation:
Chapter 74:56:01 Underground Storage Tanks:
Sections 74:56:01:01 Definitions; 74:56:01:02 Underground
storage tank defined; 74:56:01:03 Applicability; 74:56:01:04
Performance standards for new UST systems--General requirements;
74:56:01:05 Performance standards for new UST systems--Tanks;
74:56:01:06 Performance standards for new UST systems--Piping;
74:56:01:07 Performance standards for new UST systems--Spill and
overfill protection; 74:56:01:08 Performance standards for new UST
systems--Installation requirements and submission of proof of
compliance with requirements; 74:56:01:09 Upgrading of existing UST
systems--General requirements and deadlines; 74:56:01:10 Upgrading
of existing USTs--Specific requirements; 74:56:01:10.01 Replacement
of existing UST systems--Tanks; 74:56:01:10.02 Replacement of
existing UST systems--Piping; 74:56:01:10.03 Installation of under-
dispenser sumps; 74:56:01:11 Notification requirements for UST
systems; 74:56:01:12 Completion of certification of compliance form
for UST systems; 74:56:01:13 Spill and overfill control; 74:56:01:14
Operation and maintenance of cathodic protection; 74:56:01:15
Operation and maintenance of cathodic protection--Criteria for
taking tests; 74:56:01:16 Operation and maintenance of cathodic
protection--Recordkeeping; 74:56:01:17 Compatibility; 74:56:01:18
Repairs allowed--General requirements; 74:56:01:19 Repairs allowed--
Lining; 74:56:01:20 Repairs allowed--Fiberglass-reinforced plastic
tank systems; 74:56:01:21 Repairs allowed--Piping; 74:56:01:22
Repairs allowed--Recordkeeping; 74:56:01:23 Maintenance and
availability of records; 74:56:01:23.01 Periodic testing of spill
prevention equipment and containment sumps--General requirements;
74:56:01:23.02 Periodic operation and maintenance walkthrough
inspections; 74:56:01:24 Release detection for all UST systems--
General requirements and deadlines; 74:56:01:25 Release detection
requirements for regulated substance UST systems--Excluding
hazardous substances; 74:56:01:26 Release detection requirements--
Tank tightness testing and inventory reconciliation; 74:56:01:27
Release detection requirements--Vapor monitoring; 74:56:01:28
Release detection requirements--Groundwater monitoring; 74:56:01:29
Release detection requirements--Automatic tank monitoring;
74:56:01:30 Release detection requirements--Secondary containment
with interstitial monitoring; 74:56:01:31 Release detection
requirements--Manual tank monitoring; 74:56:01:32 Release detection
requirements--Hazardous substance UST systems; 74:56:01:33 Release
detection requirements--Other; 74:56:01:34 Release detection
requirements for pressure piping; 74:56:01:35 Release detection
requirements for suction piping; 74:56:01:36 Release detection
requirements for piping--Regulated hazardous substances; 74:56:01:38
Recordkeeping; 74:56:01:38.01 Training of owners and operators;
74:56:01:40 Reporting of suspected releases; 74:56:01:41 Reporting
of spills and overfills; 74:56:01:42 Release investigation and
confirmation; 74:56:01:43 Off-site impacts and source investigation;
74:56:01:44 General requirements for corrective action for releases
from UST systems; 74:56:01:45 Initial abatement requirements and
procedures for releases from UST systems; 74:56:01:46 Additional
abatement requirements for hazardous substances; 74:56:01:47 Free
product removal; 74:56:01:48 Additional site investigation for
releases from UST systems; 74:56:01:49 Soil and groundwater cleanup
for releases from UST systems; 74:56:01:51 Reporting of hazardous
substance releases from UST systems; 74:56:01:52 Temporary removal
from use; 74:56:01:53 Temporary closure; 74:56:01:54 Permanent
closure; 74:56:01:55 Postclosure requirements; and 74:56:01:57 Field
constructed tanks/airport hydrant systems.
Chapter 74:56:02 Financial responsibility:
Sections 74:56:02:01 Applicability; 74:56:02:02 Definitions; and
74:56:02:03 Financial responsibility and lender liability rules.
(2) [Reserved]
(c) Copies of the South Dakota statutes and regulations that are
incorporated by reference are available from the South Dakota
Legislative Research Council, 3rd Floor, State Capitol, 500 East
Capitol Avenue, Pierre, South Dakota 57501-5070; Phone number: 605-
773-3251; email: <a href="/cdn-cgi/l/email-protection#054957464576616960626c766964717077602b626a73"><span class="__cf_email__" data-cfemail="5c100e1f1c2f3830393b352f303d28292e39723b332a">[email protected]</span></a>; website: <a href="https://sdlegislature.gov">https://sdlegislature.gov</a>.
[FR Doc. 2024-10367 Filed 5-14-24; 8:45 am]
BILLING CODE 6560-50-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.