[Federal Register Volume 67, Number 116 (Monday, June 17, 2002)]
[Proposed Rules]
[Pages 41207-41213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-14760]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-7229-2]
Oregon: Proposed Authorization of State Hazardous Waste
Management Program Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Oregon has applied to EPA for final authorization of changes
to its hazardous waste program under the Resource Conservation and
Recovery Act (RCRA). EPA has reviewed Oregon's application and made the
preliminary decision that these changes satisfy all requirements needed
to qualify for final authorization, and is proposing to authorize the
State's changes.
DATES: EPA will accept written comments which are received at the
address below on or before July 17, 2002.
ADDRESSES: Send written comments to Lynn Williams, U.S. EPA, Region 10,
Office of Waste and Chemicals Management, 1200 Sixth Avenue, Mail Stop
WCM-122, Seattle, WA 98101, phone, (206) 553-2121. You can examine
copies of the materials submitted by Oregon during normal business
hours at the following locations: EPA Region 10 Library, 1200 Sixth
Avenue, Seattle WA 98101, phone, (206) 553-1289; and at the Oregon
Department of Environmental Quality, Land Quality Division, 811 SW
Sixth Avenue, Portland, OR 97204. The Oregon contact is Gary Calaba at
(503) 229-6534.
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 Decisions Have We Made in This Rule?
EPA has made the preliminary determination that Oregon's authorized
hazardous waste program, as revised, meets the statutory and regulatory
requirements established by RCRA. Therefore, we are proposing to grant
Oregon final authorization to operate its hazardous waste program with
the changes described in the authorization application and as described
in this proposed rule. Regulatory revisions which are less stringent
than Federal program requirements and those regulatory revisions which
are broader in scope than Federal program requirements will not be
authorized.
Oregon's authorized program will be responsible for carrying out
the aspects of the RCRA program described in its revised program
application, subject to the limitations of the Hazardous and Solid
Waste Amendments of 1984 (HSWA) 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 by EPA and take effect in States with authorized programs
before such programs are authorized for the requirements. Thus, EPA
will implement those HSWA requirements and prohibitions in Oregon,
including issuing permits or portions of permits, until the State is
granted authorization to do so.
C. What Will Be the Effect if Oregon Is Authorized for These Changes?
If Oregon is authorized for these changes, a facility in Oregon
subject to RCRA will have to comply with the authorized State program
requirements and with the federal HSWA provisions for which the State
is not authorized in order to comply with RCRA. Oregon has enforcement
responsibilities under its State hazardous waste program for violations
of its currently authorized program and will have enforcement
responsibilities for the revisions which are the subject of this
proposed rule once a final rulemaking becomes effective. EPA continues
to have independent enforcement authority under RCRA sections 3007,
3008, 3013, and 7003, which include, among others, authority to:
Do inspections and require monitoring, tests, analyses, or
reports;
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
Take enforcement actions regardless of whether the State
has taken its own actions.
The action to approve these revisions will not impose additional
requirements on the regulated community because the regulations for
which Oregon's program will be authorized are already effective under
State law.
D. What Happens if EPA Receives Comments That Oppose This Action?
If the EPA receives significant written comments on this
authorization, we will address those comments in a later final rule.
You may not have another opportunity to comment. If you want to comment
on this authorization, you must do so at this time.
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. EPA granted authorization for
changes to Oregon's 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).
[[Page 41208]]
F. What Changes Are We Proposing to Oregon's Authorized Program?
EPA is proposing to authorize revisions to Oregon's authorized
program described in Oregon's official program revision application,
submitted to EPA on February 4, 2002, and deemed complete by EPA on
March 7, 2002. We have made a preliminary determination that Oregon's
hazardous waste program revisions, as described in this proposed 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 will not be 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 proposes to
authorize 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 seeking authorization for. 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 Federal Register authority (OAR 340-
\2\) ***)
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Availability of Information. .................... -100-0003(2), -100-
0005(a)-(5), 105-
0012.
User 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; -
1005-0001.
Boilders & 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 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), -113-
0040, -113-0040(2),
-113-0040(2)(b), -
113-
0040(2)(b)(B)(v), -
113-0040(3)(a)-(b),
-113-0040(4), -113-
0050.
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 142 D). 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
Waste, 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-
Emissions 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).
[[Page 41209]]
Military Munitions Rule: 62 FR 6622, 2/12/97. -100-0002, -101-
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 Waste, 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 64 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 31260).
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 -101-0002, -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).
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 51254, 9/24/98 -100-0002.
Treatment Standards for
Spent Potliners from
Primary Aluminum Reduction
(K088); Final Rule (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-
Technical Amendments (CL 98. 0000. -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 63 FR 25408, 5/11/98 -100-0002; -101-
Phase IV--Technical 0001; -102-0010; -
Corrections and 101-0004; -102-
Clarifications to Treatment 0034.
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).
Universal 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.
[[Page 41210]]
Hazardous Air Pollutants 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, 19/20/ -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 proposed
rule.
\2\ CL (Checklist) generally reflects changes made to the
Federal regulations pursuant to a particular Federal Register notice
and 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 and the Attorney General's
statement for this proposed rule.
G. Where Are the Revised State Rules Different From the Federal Rules?
This section discusses some of the differences between the
revisions Oregon proposed to its authorized 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 is making a
preliminary determination that the State program is more stringent and
will be authorized, rules where the State program is broader in scope,
and rules where the State program is less stringent than the federal
requirements. The State will not be authorized for the 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 made the preliminary determination
that 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, which replaces the federal
requirements at 40 CFR 260.2 for availability of information, is
preliminarily 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
preliminarily 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 would be more stringent than the federal program
because EPA promulgated the dredged materials exclusion as a less
stringent requirement.
The State program regulation at OAR 340-102-0011(3) is
preliminarily 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 preliminarily
determined to be more stringent than the federal regulation at 40 CFR
262.34 as an additional requirement, which does not replace or
supersede the requirement to have a permit in the event a generator
fails to satisfy the 40 CFR 262.34 conditions.
[[Page 41211]]
The State program at OAR 340-102-0040, replacing the requirements
of 40 CFR 262.40(b), is preliminarily 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 preliminarily 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 preliminarily 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 does not seek authorization for the
provision.
The State program is preliminarily 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 preliminarily 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 preliminarily
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 preliminarily 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 preliminarily 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 preliminarily 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 preliminary 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 preliminarily 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
preliminarily 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 from ODEQ to extend the accumulation period.
The State regulation at OAR 340-113-0040(4) is preliminarily
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 preliminarily
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 preliminarily
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 preliminarily
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 cannot result in the universal waste
not remaining subject to the hazardous waste regulations.
The State program is preliminarily 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 preliminarily 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
[[Page 41212]]
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 preliminary 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
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) 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
preliminary 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 preliminary 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 preliminarily 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 preliminarily 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 preliminarily 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. 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 this action 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.
Accordingly, I certify that this action will not have a significant
economic impact on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action
authorizes 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). For the same reason,
this action also does not have Tribal implications within the meaning
of Executive Order 13175 (65 FR 67249, November 6, 2000). This action
does not have substantial direct effects on tribal governments, on the
relationships between the Federal government and the Indian Tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
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
[[Page 41213]]
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 proposed 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 proposed 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.).
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: June 3, 2002.
L. John Iani,
Regional Administrator, Region 10.
[FR Doc. 02-14760 Filed 6-14-02; 8:45 am]
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