[Federal Register Volume 67, Number 175 (Tuesday, September 10, 2002)]
[Rules and Regulations]
[Pages 57337-57344]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-22985]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-7373-6]
Oregon: Final Authorization of State Hazardous Waste Management
Program Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is granting Oregon final authorization for revisions
to the Oregon hazardous waste program under the Resource Conservation
and Recovery Act (RCRA), as amended. The Agency published a proposed
rule on June 17, 2002 at 67 FR 41207 proposing to authorize revisions
to the Oregon hazardous waste program and provided for public comment.
The public comment period ended on July 17, 2002. We received comments,
addressed below. After reviewing the comments, we hereby determine that
Oregon's hazardous waste program revisions satisfy all requirements
necessary to qualify for final authorization. EPA is authorizing the
State's changes through this final action. No further opportunity for
public comment will be provided.
EFFECTIVE DATE: Final authorization for the revisions to Oregon's
hazardous waste management program shall be effective on September 10,
2002.
FOR FURTHER INFORMATION CONTACT: Lynn Williams, U.S. EPA Region 10,
Office of Waste and Chemicals Management, 1200 Sixth Avenue, Mail Stop
WCM-122, Seattle, WA, 98101; (206) 553-2121. For general information
available on the authorization process, see EPA's Web site at: http://www.epa.gov/epaoswer/hazwaste/state/rcra.
SUPPLEMENTARY INFORMATION:
A. Why Are Revisions to State Programs Necessary?
States which have received final authorization from EPA under RCRA
section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste
program that is equivalent to and consistent with the Federal program.
States are required to have enforcement authority which is adequate to
enforce compliance with the requirements of the authorized State
hazardous waste program. Under RCRA section 3009, States are not
allowed to impose any requirements which are less stringent than the
Federal program. As the Federal program changes, States must change
their programs and ask EPA to authorize the changes. Changes to State
programs may be necessary when Federal or State statutory or regulatory
authority is modified or when certain other changes occur. Most
commonly, States must change their programs because of changes to EPA's
regulations in Title 40 of the Code of Federal Regulations (CFR) parts
124, 260 through 266, 268, 270, 273 and 279.
B. What Were the Comments and Responses to EPA's Proposal?
Commenters from the State of Washington and the State of Oregon
submitted a joint comment alleging that EPA: (1) should have provided a
public hearing for the proposed authorization of revisions to the
Oregon hazardous waste program; (2) may be sanctioning activities by
the Oregon Department of Environmental Quality (ODEQ), specifically
provisions under 40 CFR 266.20, for which ODEQ lacks statutory
authority; and (3) may be granting authority for Oregon to implement
regulations and/or statutes that are less stringent than federal rules
with respect to waste-derived fertilizers. EPA's responses to these
comments are provided below.
1. Public Hearing
EPA is authorizing a revision of the Oregon hazardous waste
program, and is not required to hold a hearing when a revision to the
authorized state hazardous waste program is proposed in the Federal
Register. Oregon received final authorization for its hazardous waste
program on January 30, 1986. Revisions to the program were authorized
in 1990, 1994 and 1995. Oregon applied to the EPA for this revision to
its already authorized program pursuant to 40 CFR 271.21 on June 3,
2002. The regulations governing review of program revisions at 40 CFR
part 271.21 do not require a hearing for authorization of revisions.
Prior to 1986, the authorization regulations did require EPA to offer a
public hearing for revisions to state authorized hazardous waste
programs. However, on March 4, 1986, EPA promulgated amendments to 40
CFR 271.21 that eliminated public hearing requirements for revisions.
In the preamble to the final rule eliminating public hearing
requirements, the Agency discussed these amendments: ``As discussed in
the proposal, the new procedures do not require public hearings to be
held in conjunction with EPA's authorization decisions. Since there is
no legal requirement to provide for hearings on
[[Page 57338]]
revision decisions and little public interest has been shown to date in
attending hearings on initial authorization of State programs, we think
the opportunity to provide written comments is adequate.'' 51 FR 7540
at 7541 (March 4, 1986). Pursuant to the current regulations, EPA is
required to provide the public with an opportunity to submit written
comments on revisions to authorized state hazardous waste programs but
public hearings are not required. EPA adhered to the governing
regulations regarding opportunities for public comment in the proposed
rule to revise the Oregon authorized hazardous waste program.
2. 40 CFR 266.20 for Hazardous Wastes ``Used in a Manner Constituting
Disposal''
Commenters alleged that ODEQ lacks statutory authority to implement
regulations, in particular 40 CFR 266.20, arguing that the State's
definition of waste-derived fertilizers at ORS 633.311 exempts waste-
derived fertilizers from the definition of solid waste and therefore
from RCRA regulation. ORS 633.311(28) defines ``waste-derived product''
to mean ``any fertilizer, agricultural mineral, agricultural amendment
or lime product derived in whole or in part from hazardous waste as
defined in ORS 466.005(7) or in rules adopted thereunder, solid waste
as defined in ORS 459.005(24) or in rules adopted thereunder, or
industrial waste as defined in ORS 468B.005(2) or in rules adopted
thereunder.'' The definition excludes biosolids and reclaimed water or
treated effluent.
The Oregon hazardous waste program was authorized for 40 CFR
266.20, which the State incorporated by reference into its hazardous
waste regulations, in the 1994 revision to the authorized program. This
provision, 40 CFR 266.20, was not the subject of the revision
authorization in EPA's proposed rule at 67 FR 41207 (June 17, 2002),
except that EPA proposed to authorize a change to the State program
analog to 40 CFR 266.20(c), OAR 340-100-0002 and 340-101-0001,
regarding anti-skid, deicing use of slags from high temperature metals
recovery processing of certain hazardous wastes. EPA reviewed the
State's statutory authority prior to proposing the revision to the
authorized hazardous waste program and did not find any lack of
authority relative to the State's ability to implement the State
regulation. With respect to the impact of ORS 633.311 on the State
regulations for hazardous wastes ``used in a manner constituting
disposal,'' commenters assume that State fertilizer registration
requirements altered the State's jurisdiction over waste-derived
fertilizer. This is not the case. ORS 633 adds certain fertilizer and
other soil-enhancing product registration and labeling requirements to
Oregon's agricultural requirements but does not alter the definition of
solid or hazardous waste in ORS 466.005(7) and the implementing State
regulations. The State hazardous waste regulations and the federal RCRA
regulations, including 40 CFR 266.20, incorporated by reference in the
State regulations pursuant to State statutory authority at ORS 466, are
not displaced by State statutory provisions concerning fertilizers and
other soil-enhancing products.
3. Waste-Derived Fertilizers
Commenters allege that ORS 633.311(28), Oregon's statutory
definition of waste-derived fertilizer, is less stringent than federal
rules because the definition exempts waste-derived fertilizer products
from the definition of solid waste. Commenters point to State statutory
provisions at ORS 466.067 in support of their allegation. ORS 466.067
pertains to the modification of PCB or hazardous waste permits to allow
for recycling operations. The statute allows ODEQ to issue a permit
modification authorizing a recycling operation at a hazardous waste or
PCB treatment or disposal facility located off the site of waste
generation at which ORS 466.055 (definitions for ORS 453.635 and
466.005 to 466.385) and ORS 466.060 (criteria to be met by owner and
operator before issuance of permit) will not apply at these facilities
provided the owner or operator obtains a determination from ODEQ that,
in accordance with federal RCRA, as amended, ``the recycling operation
is legitimate and will produce material that is exempt from the
definition of solid waste.'' Neither ORS 466.067 nor 633.311(28)
expressly exempt waste-derived fertilizer products from the definition
of solid waste. The associated rules in ORS Chapter 633 set out
licensing and labeling requirements for fertilizer, agricultural
mineral, agricultural amendment and lime products. ORS 466.067 requires
that ODEQ's determination of legitimate recycling operations which will
be exempt from the definition of solid waste be made in accordance with
federal RCRA. EPA's RCRA authorities regulate fertilizers made from
recycled hazardous wastes and EPA's rules classifying hazardous
secondary materials used in a manner constituting disposal, including
use as fertilizers, allow EPA to classify such materials as solid
waste. EPA's rules, specifically 40 CFR 261.3(e)(2)(i), define
materials used in a manner constituting disposal, or used to produce
products that are applied to the land, as solid wastes, even if the
recycling involves use, reuse, or return of the material to the
original process. Consequently, because ODEQ's determination that a
legitimate recycling operation is exempted from the definition of solid
waste is bounded by the statutory requirement to make that
determination in accordance with federal RCRA, ODEQ would not have
statutory authority to exempt solid waste used in a manner constituting
disposal which are applied to the land from the definition of solid
wastes. EPA, by the statutory definition of solid waste and by
regulation based on the statutory definition, identifies such materials
as solid waste and ODEQ would also have to identify such materials as
solid waste. Oregon's statutory definition does not per se exempt
waste-derived fertilizer products from the definition of solid waste
and Oregon's statutory definition of waste-derived fertilizer is not
less stringent than the federal rules.
C. What Decisions Have We Made in This Rule?
We conclude that Oregon's application to revise its authorized
hazardous waste program meets all of the statutory and regulatory
requirements established by RCRA. Therefore, we are granting Oregon
final authorization to operate its hazardous waste program with the
changes described in the authorization application and as described in
this final rule. Regulatory revisions which are less stringent than
Federal program requirements and those regulatory revisions which are
broader in scope than Federal program requirements are not authorized.
Oregon will be responsible for carrying out the aspects of Oregon's
authorized hazardous waste program described in Oregon's revised
program application, subject to the limitations of the Hazardous and
Solid Waste Amendments of 1984 (HSWA) and the limitations of this
authorization. Oregon's authorized program does not extend to Indian
country. EPA retains jurisdiction and authority to implement RCRA over
Indian country and over trust lands.
New Federal requirements and prohibitions imposed by Federal
regulations that EPA promulgates under the authority of HSWA are
implementable and enforceable by EPA and take effect in States with
authorized programs before such programs are authorized for the
requirements. Thus, EPA will implement and enforce those
[[Page 57339]]
HSWA requirements and prohibitions in Oregon, including issuing permits
or portions of permits, until the State is granted authorization to do
so.
D. What Will Be the Effect if Oregon Is Authorized for These Changes?
The effect of this decision is that a facility in Oregon subject to
RCRA must comply with the authorized State program requirements and
with the federal HSWA provisions for which the State is not authorized
and RCRA requirements that are not supplanted by authorized state-
issued requirements, in order to comply with RCRA. Oregon continues to
have enforcement responsibilities under its State hazardous waste
program for violations of its authorized program. EPA retains and
continues to have independent enforcement authority under RCRA sections
3007, 3008, 3013, and 7003, which include, among others, authority to:
[sbull] Do inspections and require monitoring, tests, analyses, or
reports;
[sbull] Enforce RCRA requirements, including State program
requirements that are authorized by EPA and any applicable Federally-
issued statutes and regulations, and suspend or revoke permits; and
[sbull] Take enforcement actions regardless of whether the State
has taken its own actions.
This final action approving these revisions does not impose
additional requirements on the regulated community because the
regulations for which Oregon's program is being authorized by today's
action are already effective under State law.
E. What Has Oregon Previously Been Authorized For?
Oregon initially received final authorization on January 30, 1986,
effective January 31, 1986 (51 FR 3779), to implement the State's
hazardous waste management program. Oregon received authorizations for
revisions to its program on March 30, 1990, effective on May 29, 1990
(55 FR 11909); August 5, 1994, effective October 4, 1994 (59 FR 39967);
June 16, 1995, effective August 15, 1995 (60 FR 31642); and October 10,
1995, effective December 7, 1995 (60 FR 52629).
F. What Changes Are We Authorizing With Today's Action?
EPA is granting final authorization for the revisions to Oregon's
federally authorized program described in Oregon's official program
revision application submitted to EPA in accordance with 40 CFR 271.21
on February 4, 2002, and deemed complete by EPA on March 7, 2002. We
now make a final determination that Oregon's hazardous waste program
revisions, as described in this rule, satisfy the requirements
necessary to qualify for final authorization. Regulatory revisions
which are less stringent than Federal program requirements and those
regulatory revisions which are broader in scope than Federal program
requirements are not authorized.
The Oregon Hazardous Waste Management Program, which was
administered by the Oregon Department of Environmental Quality (DEQ),
Waste Prevention and Management Division, reorganized effective October
1, 2001 and is now administered by the DEQ Land Quality Division. This
rule authorizes this reorganization.
The following table, Table 1, identifies equivalent and more
stringent State regulatory analogues to the Federal regulations for
those regulatory revisions Oregon is being authorized for today. All of
the referenced analogous State authorities were legally adopted and
effective as of July 21, 2000.
Table 1.--Equivalent and More Stringent Analogues to the Federal
Regulations \1\
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Description of Federal Analogous State
requirements (CL\2\) * *)
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Availability of Information. .................... -100-0003(2), -100-
0005(1)-(5); 105-
0012.
Used Oil Filter Exclusion, 57 FR 29220, 7/1/92. -100-0002; -101-
Technical Corrections (CL 0001.
107).
Testing and Monitoring 58 FR 46040, 8/31/93 -100-0002; -101-
Activities (CL 126). 0001; -104-0001; -
105-0001.
Boilers & Industrial 58 FR 59598, 11/9/93 -100-0002.
Furnaces, Administrative
Stay & Interim Standards
for Bevill Residues (CL
127).
Wastes From the Use of 59 FR 458, 1/4/94... -100-0002; -101-
Chlorophenolic Formulations 0001.
in Wood Surface Protection
(CL 128).
Revision of Conditional 59 FR 8362, 2/18/94. -100-0002; -101-
Exemption for Small Scale 0001.
Treatability Studies (CL
129).
Recycled Used Oil Management 59 FR 10550, 3/4/94. -100-0002; -111-
Standards; Technical 0000(2), -111-0010.
Amendments and Corrections
II (CL 130).
Recordkeeping Instructions, 59 FR 13891, 3/24/94 -100-0002; -104-
Technical Amendment (CL 0001.
131).
Letter of Credit Revision 59 FR 29958, 6/10/94 -100-0002; -104-
(CL 133). 0001, 104-0151.
Corrections of Beryllium 59 FR 31551, 6/20/94 -100-0002; -101-
Powder (P015) Listing (CL 0001, -101-0033.
134).
Recovered Oil Exclusion (CL 59 FR 38536, 7/28/94 -100-0002; -101-
135). 0001.
Removal of the Conditional 59 FR 43496, 8/24/94 -100-0002; -101-
Exemption for Certain Slag 0001.
Residues (CL 136).
Carbamate Production 60 FR 7824, 2/9/95; -100-0002; -101-
Identification and Listing as amended at 60 FR 0001, -101-0033.
of Hazardous Waste (CL 140). 19165, 4/17/95, and
at 60 FR 25619, 5/
12/95.
Universal Waste Rule: 60 FR 25492, 5/11/95 -100-0002; -102-
General Provisions (CL 0011(e); -113-0000,
142A) \3\. -113-0020, 113-
0020(1)-(2), -113-
0030, -113-
0030(3)(a), -13-
0040, -113-0040(2),
113-0040(2)(b), -
113-0040(2)(b)(B)(v
), -113-0040(3), -
113-0040(3)(a)-(b),
-113-0040(4), -113-
0050.
[[Page 57340]]
Universal Waste Rule: 60 FR 25492, 5/11/95 -100-0002; -113-
Specific Provisions for 0000, -113-0020, -
Batteries (CL 142B). 113-0030, -113-
0040.
Universal Waste Rule: 60 FR 25492, 5/11/95 -100-0000; -113-
Specific Provisions for 0020, -113-0000, -
Pesticides (CL 142C). 113-0070, -113-
0030, -113-0040.
Universal Waste Rule: 60 FR 25492, 5/11/95 -100-0002; -113-
Specific Provisions for 0020, -113-0000, -
Thermostats (CL 142D). 113-0030, -113-
0040.
Universal Waste Rule: 60 FR 25492, 5/11/95 -100-0002; -113-
Petition Provisions to add 0000, -113-0060.
a new Universal Waste (CL
142 E) \3\.
Liquids in Landfills III (CL 60 FR 35703, 7/11/95 -100-0002.
145).
RCRA Expanded Public 60 FR 63417, 12/11/ -100-0002; -106-
Participation (CL 148). 95. 0001; -105-0001,
105-0010, 105-0014
Land Disposal Restrictions 61 FR 15566, 4/8/96. -100-0002; -102-
Phase III--Decharacterized 0011(2)(e).
Wastewaters Carbamate
Wastes, and Spent Potliners
(CL 151).
Conditionally Exempt Small 61 FR 34252, 7/1/96. -100-0002, -101-
Quantity Generator Disposal 0001.
Options under Subtitle D
(CL 153).
Consolidated Organic Air 59 FR 62896, 12/6/ -100-0002; -104-
Emission standards for 94; as amended 5/19/ 0001; 102-0034; -
Tanks Surface Impoundments, 95 (60 FR 26828), 9/ 101-0001.
and Containers (CL 154). 29/95 (60 FR
50426), 11/13/95
(60 FR 56952), 2/9/
96 (61 FR 4903), 6/
5/96 (61 FR 28508),
11/25/96 (61 FR
69932).
Military Munitions Rule: 62 FR 6622, 2/12/97. -100-0002, -100-
Hazardous Waste 0010; -101-0001; -
Identification and 102-0010; -103-
Management; Explosives 0010; -104-0001,
Emergencies; Manifest 104-1201, 104-
Exemption for Transport of 1201(2), (3); -105-
Hazardous Waste on Right-of- 0001, -105-0041
Ways on Contiguous (3),(4).
Properties (CL 156) \3\.
Land Disposal Restrictions 62 FR 25998, 5/12/97 -100-0002; -101-
Phase IV--Treatment 0001, -101-0004.
Standards for Wood
Preserving Wastes,
Paperwork Production and
Streamlining, Exemptions
from RCRA for Certain
Processed Materials; and
Miscellaneous Hazardous
Waste Provisions (CL 157).
Testing and Monitoring 62 FR 32452, 6/13/97 -100-0002; -104-
Activities Amendment III 0001.
(CL 158).
Conformance with Carbamate 62 FR 32974, 6/17/97 -100-0002; -101-
Vacatur (CL 159). 0001.
Emergency Revision of 62 FR 45568, 8/28/97 -100-0002.
Carbamate Land Disposal
Restrictions (CL 161).
Clarification of Standards 62 FR 64504, 12/5/97 -100-0002.
for Hazardous Waste LDR
Treatment Variances (CL
162).
Organic Air Emission 62 FR 64636, 12/8/97 -100-0000; -104-
Standards for Tanks, 0001.
Surface Impoundments, and
Containers; Clarification
and Technical Amendment (CL
163).
Kraft Mill Stream Stripper 63 FR 18504, 4/15/98 -100-0002; -101-
Condensate Exclusion (CL 0004.
164).
Recycled Used Oil Management 63 FR 24963, 5/6/98. -100-0002; -111-0000
Standards; Technical (2), -111-0032, -
Correction and 111-0050.
Clarification (CL-166) \3\.
Land Disposal Restrictions 63 FR 28556, 5/26/98 -100-0002; -102
Phase IV--Treatment 0011(2)(e).
Standards for Metal Wastes
and Mineral Processing
Wastes (CL 167A).
Land Disposal Restrictions 63 FR 28556, 5/26/98 -100-0002.
Phase IV--Hazardous Soils
Treatment Standards and
Exclusions (CL 167B).
Land Disposal Restrictions 63 FR 28556, 5/26/ -100-0002.
Phase IV--Corrections (CL 98; as amended 6/8/
167 C). 98 (63 FR 31266).
Bevill Exclusion Revisions 63 FR 28556, 5/26/98 -100-0002; -101-
and Clarifications (CL 0001, -101-0004.
167E).
Exclusion of Recycled Wood 63 FR 28556, 5/26/98 -100-0002; -101-
Preserving Wastewaters (CL 0004.
167F).
Hazardous Waste Combustors; 63 FR 33782, 6/19/98 -100-0002, -101-
Revised Standards (CL 168). 0001,-- 101-0004.
Petroleum Refining Process 63 FR 42110, 8/6/98. -100-0002; -101-
Wastes (CL 169). 0001; -102-0010; -
101-0004.
Land Disposal Restrictions 63 FR 46332, 8/31/98 -100-0002.
Phase IV--Zinc
Micronutrient Fertilizers,
Amendment (CL 170).
Emergency Revision of the 63 FR 47410, 9/4/98. -100-0002.
Land Disposal Restrictions
(LDR) Treatment Standards
for Listed Hazardous Wastes
from Carbamate Production
(CL 171).
[[Page 57341]]
Land Disposal Restrictions 63 FR 48124, 9/9/98. -100-0002
Phase IV--Extension of
Compliance Date for
Characteristic Slags (CL
172).
Land Disposal Restrictions; 63 FR 5124, 9/24/98. -100-0002.
Treatment Standards for
Spent Potliners from
Primary Aluminum reduction
(K088); Final Ru7le (CL
173).
HWIR--Media (CL 175) \3\.... 63 FR 65874, 11/30/ -100-0010, -100-
98. 0002;-- 101-
0004(3); -105-0003,
- 105-0115
Universal Waste Rule-- 63 FR 71225, 12/24/ -100-0002; -113-0000
Technical Amendments (CL 98. -113-0020
176).
Organic Air Emission 64 FR 3382, 1/21/99. -100-0002; -102-
Standards: Clarification 0034; -104-0001.
and Technical Amendments
(CL 177).
Petroleum Refining Process 64 FR 6806, 2/11/99. -100-0002; -101-
Wastes--Leachate Exemption 0001, -101-0004.
(CL 178).
Land Disposal Restrictions 64 FR 25408, 5/11/99 -100-0002; -101-
Phase IV--Technical 0001;-- 102-0010; -
Corrections and 101-0004;--102-0034
Clarifications to Treatment .
Standards (CL 179).
Test Procedures for Analysis 64 FR 26315, 5/14/99 -100-0002.
of Oil and Grease and Non-
Polar Material (CL 180).
Unversal Waste Rule: 64 FR 36466, 7/6/99. -100-0002; -113-
Specific Provisions for 0000, -113-0020, -
Hazardous Waste Lamps (CL 113-0030, -113-
181). 0040, -113-0060.
Hazardous Air Pollutant 64 FR 52828, 9/30/ -100-0002; -101-
Standards for Combustors 99, as amended 11/ 0001; -104-0001; -
(CL 182). 19/99 (64 FR 63209). 105-0001.
Land Disposal Restrictions 64 FR 56469, 10/20/ -100-0002; -101-
Phase IV--Technical 99. 0001; -102-0010, -
Corrections (CL 183). 102-0034.
Accumulation Time for Waste 65 FR 12378, 3/8/00. -100-0002, -102-
Water Treatment Sludges (CL 0010.
184).
Organobromine Production 65 FR 14472, 3/17/00 -100-0000; -101-
Waste Vacatur (CL 185). 0001.
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\1\ For further discussion on where the revised State rules differ from
the Federal rules refer to Section G. below, the authorization
revision application, and the administrative record for this final
rule.
\2\ CL (Checklist) generally reflects changes made to the
Federal regulations pursuant to a particular Federal Register notice.
EPA publishes these checklists as aids for States to use for the
development of their authorization application. See EPA's RCRA State
Authorization web page at http://www.epa.gov/epaoswer/hazwaste/state/
\3\ State rule contains some more stringent provisions. For
identification of more stringent State provisions refer to the
authorization revision application.
G. Where Are the Revised State Rules Different From the Federal Rules?
This section discusses some of the differences between the
revisions EPA is authorizing in Oregon's hazardous waste program and
the Federal regulations. Not all program differences are discussed in
this section because, although Oregon incorporates many Federal rules
by reference, the State also writes its own version of many of the
federal hazardous waste rules. This section discusses certain rules
where EPA makes a determination that the State program is more
stringent and rules where the State program is broader in scope. The
State is not authorized for less stringent rules or broader in scope
rules. Less stringent State rules and broader in scope rules do not
supplant federal regulations. Persons should consult the table
referenced above for the specific State regulations which EPA proposes
to authorize.
Certain portions of the federal program are not delegable/
authorizable to the States because of the Federal government's special
role in foreign policy matters and because of national concerns that
arise with certain decisions. One such matter pertains to import/export
functions. EPA does not delegate/authorize import/export functions.
Under the RCRA regulations found in 40 CFR Part 262, Standards for
Generators, EPA will continue to implement requirements for import/
export functions. EPA does not delegate/authorize certain of the
Federal Land Disposal Restriction requirements, 40 CFR Part 268,
because of the national concerns that must be examined when decisions
are made under the following federal regulations; these include: 40 CFR
268.5--Procedures for case-by-case effective date extensions; 40 CFR
268.6--``No migration'' petitions; 40 CFR 268.42(b)--applications for
alternate treatment methods; and 40 CFR 268.44(a)-(g)--general
treatment standard variances. Oregon's program does not include these
requirements. EPA will continue to implement these requirements under
EPA's HSWA authority.
Areas Where the State Program Is More Stringent
States are allowed to seek authorization for State requirements
that are more stringent than federal requirements. EPA has authority to
authorize and enforce those parts of a State's program EPA finds to be
more stringent than the federal program. This section does not discuss
each more stringent preliminary finding made by EPA, but persons can
locate such sections by consulting the Table, referenced above, as well
as by reviewing the authorization application.
Oregon has enacted several requirements under its hazardous waste
management program for which EPA has determined the requirements are
more stringent than the standards of the Federal RCRA program set forth
in 40 CFR parts 260-279.
States sometimes make changes to their previously authorized
programs for which they need to seek reauthorization. Oregon made such
a change to its rules for availability of information. The State
program requirement at OAR 340-100-0003,
[[Page 57342]]
which replaces the federal requirements at 40 CFR 260.2 for
availability of information, is determined to be more stringent than
the federal program because State regulations require additional
justification for trade secret claims and establish a time frame of 15
to 30 days for clarifying claims. OAR 340-105-0012 was revised to
require identical trade secret claims substantiation for permits as
required by OAR 340-100-0003.
The State program regulation at OAR 340-101-0004(3) is determined
to be more stringent than the federal program at 40 CFR 261.4(g),
Dredged Materials, in that the State program deletes 40 CFR 261.4(g)
from its incorporation of the federal regulations by reference.
Consequently, the State program does not exclude dredged material from
regulation as a solid waste subject to a hazardous waste determination.
Because the dredged materials exclusion at 40 CFR 261.4(g) replaced
existing regulations that subjected such materials to a hazardous waste
determinations, State programs were allowed the option of choosing to
change their regulations to include the dredged materials exclusion or
not. Those that selected not to include the exclusion are more
stringent than the federal program once authorized because EPA
promulgated the dredged materials exclusion as a less stringent
requirement.
The State program regulation at OAR 340-102-0011(3) is determined
to be more stringent than the federal program regulation at 40 CFR
262.11 because generators of hazardous waste in Oregon must keep
documentation of ``knowledge of process'' hazardous waste
determinations for at least three years.
The State program at OAR 340-102-0034(2) is determined to be more
stringent than the federal regulation at 40 CFR 262.34 as it adds
additional requirements, which does not replace or supercede the
requirement to have a permit in the event a generator has not met the
conditions under 40 CFR 262.34 to allow the generator to operate
without a permit.
The State program at OAR 340-102-0040, replacing the requirements
of 40 CFR 262.40(b), is determined to be more stringent than the
federal program because the State program requires small quantity
generators both to report waste generated (OAR 340-102-0041) and to
maintain copies of all reports on waste generated for three years.
The State program is determined to be more stringent at OAR 340-
104-0001(6) than the federal program with respect to facilities
receiving hazardous waste from offsite because the State program
requires that facilities receive a final waste permit before managing
offsite hazardous wastes. The federal program allows facilities with
interim status to receive offsite hazardous waste.
The State program is determined to be more stringent than the
federal program with respect to the federal HWIR media rule because the
State regulations do not allow for the use of Remedial Action Plans
(RAPs) as found in the federal requirements at 40 CFR part 270, subpart
H. The State regulations at OAR 340-105-0003 delete from their
incorporation by reference of the federal regulations those regulations
allowing for RAPs. Oregon inadvertently incorporated 40 CFR
270.230(e)(1) by reference but did not seek and is not authorized for
the provision.
The State program is determined to be more stringent than the
federal program with respect to the federal Post Closure (PC) rule (63
FR 56710) because the State program specifically excluded the PC rule
from its incorporation by reference of the federal regulations at OAR
340-100-0002.
The State program is determined to be more stringent in certain
places than the federal regulations promulgated in EPA's Military
Munitions Rule (62 FR 6622). With respect to the hazardous waste
management system in Oregon, the State hazardous waste program added
definitions for ``demilitarization'' and ``demilitarization residue''
at OAR 340-100-0010(2)(f) and (g) in Oregon's analog to 40 CFR 260.10.
These definitions are specific to the processes and activities at the
Umatilla Chemical Depot and are determined to be more stringent than
the federal program.
With respect to chemical agent munitions and chemical agent bulk
items in storage, the State program identifies such chemical agent
munitions and chemical agent bulk items in storage as characteristic
and/or listed hazardous waste at OAR 340-101-0030, referencing listings
for blister agents and nerve agents at OAR 340-102-0011(c)(A) and (B).
In the Military Munitions Rule, at 62 FR 6633, EPA said that States
could be more stringent than the federal program for chemical agents
and munitions.
Oregon's analog to 40 CFR 264.1201, OAR 340-104-1201, design and
operating standards for munitions storage, is determined to be more
stringent than the federal program because OAR 340-104-1201 adds
additional requirements to munitions storage, including requirements
for: storage unit operations and management plans; vapor containment
mechanisms for nerve agent storage units; a requirement to not allow
storage of munitions in an open area; and the State definition of ``no
migration'' to mean no detectable concentration of chemical agent
outside the storage unit. EPA's regulations defer the ``no migration''
criteria to Army management procedures which allow some detectable
migration.
The State is determined to be more stringent than the federal
program because the State program defines, for purposes of reportable
quantities, chemical agents (such as, for example, nerve agents GB, VX,
and blister agent HD) to be hazardous materials at OAR 340-108-
0002(9)(c), and at OAR 340-108-0010(1)(e) reportable quantity is
defined to mean any quantity of chemical agent.
The State is determined to be more stringent than the federal
program in its incorporation by reference of the federal regulations at
OAR 340-105-0041(3) because the State program deleted a cross-reference
to the federal regulation at 40 CFR 270.42(h) and replaced the cross-
reference with a citation to OAR 340-105-0041(4) which for the Umatilla
Chemical Depot does not allow the acceptance of off-site shipments of
munitions. The federal program does not restrict acceptance of such
off-site shipments at the Umatilla Chemical Depot.
EPA has made the determination that certain of the State program
regulations for universal waste are more stringent than the federal
regulations.
The State regulations at OAR 340-113-0040(2)(b), (2)(b)(B), (3)(a)
and (b), are determined to be more stringent than the federal
regulations at 40 CFR 273.12 and 273.32(b)(5), because the State
requires owners or operators of off-site universal waste collection
sites accumulating more than 1,000 kg of universal waste and non-
pesticide universal waste to meet the notification requirements for
large quantity generators and to submit additional information with the
notification. The more stringent requirements of OAR 340-113-0040(2)
and (3) are not applicable under the State regulation at OAR 340-113-
0040(1)(b) to persons who collect, store or transport universal waste
batteries.
The State regulations at OAR 340-113-0040(3)(a) and (b) are
determined to be more stringent than the federal regulations at 40 CFR
273.15(a) and (b) and 273.35(a) and (b), because the State regulations
require owners and operators of off-site collection sites accumulating
more than 1,000 kg of universal waste to limit the accumulation time to
a six month period or to receive written approval
[[Page 57343]]
from ODEQ to extend the accumulation period.
The State regulation at OAR 340-113-0040(4) is determined to be
more stringent than the federal regulation at 40 CFR 273.19 for
tracking universal waste shipments because the State regulation applies
to small quantity handlers accumulating more than 1,000 kg of universal
waste.
The State regulation at OAR 340-113-0040(4)(b) is determined to be
more stringent than the federal regulation at 40 CFR 273.39(a) because
the State regulation requires an off-site collection site to record the
date the off-site universal waste was received.
The State regulation at OAR 340-113-0050(2) is determined to be
more stringent than the federal regulation at 40 CFR 273.60 because the
State requires annual reporting of universal waste for all destination
facilities.
The State regulation at OAR 340-113-0060(2)(b) is determined to be
more stringent than the federal regulation at 40 CFR 273.81(c) in
listing additional factors to be considered when reviewing a petition
to remove a universal waste from the universal waste rule. However, the
use of such factors in the implementation of the authorized hazardous
waste program cannot result in the universal waste not remaining
subject to the hazardous waste regulations.
The State program is determined to be more stringent than the
federal requirements at 40 CFR 279.22, Used Oil Storage, because the
State regulation OAR 340-111-0032 requires generators to store used oil
in accordance with applicable State and local Fire Marshal regulations
and to keep rainwater from coming in contact with used oil during
storage. The State program is determined to be more stringent than the
federal program at 40 CFR 279.45(h), 279.54(g), and 279.64(g), because
the State program at OAR 340-111-0050 requires handlers to respond to
spills and releases according to more specific State requirements of
OAR 340 Division 108 and requires used oil handlers to take immediate
action to mitigate, report and clean up threatened spills and releases
of used oil as required in OAR 340 Division 108.
Areas Where the State Program Is Broader in Scope
States are not allowed to seek authorization for State requirements
that are broader in scope than the federal requirements. EPA does not
have authority to authorize and enforce those parts of a State's
program which are broader in scope than the federal program. Because
the State program at OAR 340-101-0004 deleted from its incorporation by
reference of the federal regulations the provisions of 40 CFR
261.4(b)(7)(ii), a list of 20 wastes from the extraction, beneficiation
and processing of ores and minerals (Bevill wastes) which under the
federal program are solid wastes that are not hazardous wastes, EPA has
made the determination that the State program is broader in scope than
the federal program with respect to these solid wastes.
The State program incorporated by reference rules that classified
mineral processing characteristic sludges and byproducts being stored
prior to being reclaimed as solid wastes and subjected manufactured gas
plant waste to characterization under the toxicity characteristic
regulations. The Federal regulations, 40 CFR 261.2(c)(3) second
parenthetical, 40 CFR 261.4(a)(17) as it referenced secondary materials
rather than spent materials, and 40 CFR 261.24 as it applied to
manufactured gas plant waste, were subsequently revised (67 FR 11251,
March 13, 2002) because of a court vacatur of certain provisions of the
regulations. Because of the vacatur, EPA cannot authorize the rules;
thus EPA has made the determination that the State is broader in scope
because the State program regulations at OAR 340-100-0002 incorporated
the federal rules by reference as those rules existed before the
vacatur.
The State incorporated by reference at OAR 340-224-0220 the federal
regulation at 40 CFR 63.1210(b) which was vacated on July 24, 2001. EPA
has made the determination that the State hazardous waste program is
broader in scope to the extent, if at all, the State hazardous waste
regulations reference or cross-reference the vacated federal rule.
The State regulations define ``pesticide residue'' at OAR 340-100-
0010. The State interprets ``pesticide residue'' to include state-only
pesticides which are state-only hazardous wastes and outside the scope
of the federal regulations. A generator of state-only pesticide
residues may designate such residues as ``waste pesticide'' and manage
the residues in a manner consistent with the universal waste management
standards of OAR Division 113, under a state water pollution control
facility permit, at a Subpart C facility as allowed by OAR 340-109-
0010(4)(a) or in a Subpart D facility provided land disposal
restrictions were met. Portions of the State definition for universal
waste, OAR 340-113-0020(4) are determined to be broader in scope than
the federal regulations at 40 CFR 260.10 and 273.9 by the addition of
``waste pesticides,'' which as defined by the State at OAR 340-109-
0001(2)(a), are those not subject to regulation as hazardous waste
under the federal regulations at 40 CFR parts 260 to 270. Portions of
the State definition of ``universal waste,'' OAR 340-113-0020(4), are
also determined to be broader in scope where the definition includes
``pesticide residues'' that are not part of the federal program.
The State regulation at OAR 340-113-0010(1)(a), in addition to
wastes covered by 40 CFR 273.3, adds waste pesticides and pesticide
residues to the applicability section of the universal waste rules.
This addition is determined to be broader in scope where such waste
pesticides or pesticide residues would not be part of the federal
program.
H. Who Handles Permits After This Authorization Takes Effect?
Oregon will issue permits for all the provisions for which it is
authorized and will administer the permits it issues. All permits, or
portions of permits, issued by EPA Region 10 prior to final
authorization of this revision will continue to be administered by EPA
Region 10 until the issuance or re-issuance after modification of a
State RCRA permit and until EPA takes action on its permit or portion
of permit. HSWA provisions for which the State is not authorized will
continue in effect under the EPA-issued permit or portion of permit.
EPA will continue to issue permits, or portions of permits, for HSWA
requirements for which the State program in Oregon is not yet
authorized.
I. How Does Today's Action Affect Indian Country (18 U.S.C. 1151) in
Oregon?
EPA's decision to authorize the hazardous waste program does not
include any land that is, or becomes after the date of this
authorization, ``Indian Country,'' as defined in 18 U.S.C. 1151. This
includes: (1) All lands within the exterior boundaries of Indian
reservations within or abutting the State of Oregon; (2) Any land held
in trust by the U.S. for an Indian tribe; and (3) Any other land,
whether on or off an Indian reservation that qualifies as Indian
country. Therefore, this action has no effect on Indian country. EPA
retains jurisdiction over ``Indian Country'' as defined in 18 U.S.C.
1151 and will continue to implement and administer the RCRA program in
Indian country.
J. What Is Codification and Is EPA Codifying Oregon's Hazardous Waste
Program As Authorized in This Rule?
Codification is the process of placing the State's rules that
comprise the
[[Page 57344]]
State's authorized hazardous waste program into the Code of Federal
Regulations. We do this by referencing the authorized State rules in 40
CFR part 272. We reserve the amendment of 40 CFR part 272, subpart MM
until a later date.
K. Administrative Requirements
The Office of Management and Budget has exempted this action from
the requirements of Executive Order 12866 (58 FR 51735, October 4,
1993), and therefore, a decision to authorize Oregon's hazardous waste
program for these revisions is not subject to review by OMB. This
action authorizes State requirements for the purpose of RCRA 3006 and
imposes no additional requirements beyond those imposed by State law.
Authorization will not impose any new burdens on small entities.
Accordingly, I certify that these revisions 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 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 (Public Law 104-4). This action also does
not have Tribal implications within the meaning of Executive Order
13175 (65 FR 67249, November 6, 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 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 action is not subject to
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply Distribution or Use'' (66 FR 28344,
May 22, 2001) because it is not a significant regulatory action under
Executive Order 12866. The final rule does not include environmental
justice issues that require consideration under Executive Order 12898
(59 FR 7629, February 16, 1994).
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 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) do not apply. As required by
section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in
issuing this rule, EPA has taken the necessary steps to eliminate
drafting errors and ambiguity, minimize potential litigation, and
provide a clear legal standard for affected conduct. EPA has complied
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining
the takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings' issued under the executive order.
This final 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.).
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 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).
List of Subjects in 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.
Authority: This action 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: August 30, 2002.
L. John Iani,
Regional Administrator, Region 10.
[FR Doc. 02-22985 Filed 9-9-02; 8:45 am]
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