[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\
------------------------------------------------------------------------
   Description of Federal                              Analogous State
   requirements (CL\2\)                                           * *)
------------------------------------------------------------------------
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.
------------------------------------------------------------------------
\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]
BILLING CODE 6560-50-P