[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\
------------------------------------------------------------------------
   Description of Federal                              Analogous State
  requirements (CL     Federal Register     authority (OAR 340-
            \2\)                                            ***)
------------------------------------------------------------------------
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.
------------------------------------------------------------------------
\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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