[Federal Register Volume 75, Number 236 (Thursday, December 9, 2010)]
[Rules and Regulations]
[Pages 76633-76636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31012]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R10-RCRA-2010-0947; FRL-9236-8]


Oregon; Correction of Federal Authorization of the State's 
Hazardous Waste Management Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: On January 7, 2010, EPA published a final rule under docket 
EPA-R10-RCRA 2009-0766 granting final authorization for changes the 
State of Oregon made to its federally authorized RCRA Hazardous Waste 
Management Program. These authorized changes included, among others, 
the federal Recycled Used Oil Management Standards; Clarification rule, 
promulgated on July 30, 2003. During a post-authorization review of the 
State of Oregon's regulations, EPA identified that the Oregon 
Administrative Rules (OAR), related to the federal used oil management 
requirements (OAR 340-100-0002), had not been updated to include the 
adoption of the federal Recycled Used Oil Management Standards; 
Clarification rule. Therefore, the State did not have an effective 
state rule and EPA inaccurately referenced this rule in the State's 
Final Authorization Action published and effective on January 7, 2010. 
This action will correct the State of Oregon's federally authorized 
program, by removing the inaccurate authorization reference to the 
Federal Recycled Used Oil Management Standards; Clarification rule.

DATES: This rule is effective February 7, 2011, unless the EPA receives 
adverse comment on this revision by the close of business January 10, 
2011. If the EPA receives such comments, EPA will publish a timely 
withdrawal of this direct final rule in the Federal Register informing 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
RCRA-2010-0947, by one of the following methods:
     http://www.regulation.gov: Follow the on-line instructions 
for submitting comments.
     E-mail: [email protected].
     Mail: Nina Kocourek, U.S. Environmental Protection Agency, 
Region 10, Office of Air, Waste & Toxics, Mail Stop AWT-122, 1200 Sixth 
Avenue, Suite 900, Seattle, WA 98101.
    Instructions: Direct your comments to Docket ID No. EPA-R10-RCRA-
2010-0947. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov, or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters or any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy during normal business 
hours at the U.S. Environmental Protection Agency, Region 10, Office of 
Air, Waste & Toxics, Mailstop AWT-122, 1200 Sixth Avenue, Suite 900, 
Seattle, Washington 98101, contact: Nina Kocourek, phone number: (206) 
553-6502; or the Oregon Department of Environmental Quality, 811 SW. 
Sixth Avenue, Portland, Oregon, 97204, contact: Scott Latham, phone 
number: (503) 229-5953.

FOR FURTHER INFORMATION CONTACT: Nina Kocourek, U.S. Environmental 
Protection Agency, Region 10, Office of Air, Waste & Toxics (AWT-122), 
1200 Sixth Avenue, Suite 900, Seattle, Washington 98101, phone number: 
(206) 553-6502, e-mail: [email protected].

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, consistent with, and no 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 codified in Title 40 of the Code of Federal 
Regulations (CFR) Parts 124, 260 through 268, 270, 273, and 279.

B. What decisions have we made in this rule?

    This action will correct the State of Oregon's federally authorized 
program by removing the inaccurate authorization reference to the 
Federal Recycled Used Oil Management Standards; Clarification rule 
promulgated on July 30, 2003 (68 FR 44659) pursuant to the Final 
Authorization Rule promulgated and effective on January 7, 2010 (75 FR 
918) under docket EPA-R10-RCRA-2009-0766. During a post-authorization 
review of the State of Oregon's regulations, EPA identified that the 
Oregon Administrative Rules (OAR), related to the federal used oil 
management requirements (OAR 340-100-0002), had not been updated to 
include the adoption of the Federal Recycled Used Oil Management 
Standards; Clarification rule. Therefore, the State did not have an 
effective state rule and EPA inaccurately referenced this rule in the 
State's Final Authorization Action published and effective on January 
7, 2010.
    The Federal Recycled Used Oil Management Standards; Clarification 
rule addresses three aspects of the used

[[Page 76634]]

oil management standards: (1) It clarifies when used oil contaminated 
with PCBs is regulated under RCRA used oil management standards and 
when it is not; (2) It explains that used oil mixed with Conditionally 
Exempt Small Quality Generators (CESQG) waste is subject to RCRA used 
oil management standards irrespective of how this mixture is to be 
recycled; (3) It explains that the initial marketer of on-specification 
used oil must keep a record of the shipment of used oil to the facility 
to which the initial marketer delivers the used oil. The Federal Used 
Oil Management Standards; Clarification rule (68 FR 44659, July 30, 
2003) is promulgated pursuant to non-HSWA authority and is no more 
stringent than the current Federal requirements. This federal rule is 
considered to be an optional rule which States are not required to 
adopt and seek authorization for this rule, although the State of 
Oregon intends to revise its OAR to adopt the Federal Recycled Used Oil 
Management Standards; Clarification rule (68 FR 44665) at a later date.
    With this correction to Oregon's federally authorized RCRA 
Hazardous Waste Management Program, the State will continue to have 
responsibility for permitting Treatment, Storage, and Disposal 
Facilities (TSDFs) within its borders, except in Indian country (18 
U.S.C. 1151), and for carrying out the aspects of the RCRA program, 
subject to the limitations of the Hazardous and Solid Waste Amendments 
of 1984 (HSWA). New Federal requirements and prohibitions imposed by 
Federal regulations that EPA promulgates under the authority of HSWA, 
and which are not less stringent than existing requirements, take 
effect in authorized States before the States are authorized for the 
requirements. Thus, EPA will implement those requirements and 
prohibitions in Oregon, including issuing permits, until the State is 
granted authorization to do so.

C. What is the effect of this authorization decision?

    This action will correct the State of Oregon's federally authorized 
program by removing the inaccurate authorization reference to the 
Federal Recycled Used Oil Management Standards; Clarification rule 
promulgated on July 30, 2003 (68 FR 44659), from the State of Oregon's 
Federally Authorized Program Authorization Revision Final Rule, 
promulgated and effective on January 7, 2010 (75 FR 918). The effect of 
this action is a facility in Oregon subject to RCRA will have to comply 
with the accurately identified authorized State requirements in order 
to comply with RCRA. Such persons will have to comply with any 
applicable Federal requirements, such as, for example, HSWA regulations 
issued by EPA for which the State has not received authorization, and 
RCRA requirements that are not supplanted by authorized State-issued 
requirements. Oregon continues to have enforcement responsibilities 
under its State hazardous waste management program for violations of 
this program, but EPA retains its authority under RCRA sections 3007, 
3008, 3013, and 7003, which includes, among others, the authority to:
     Conduct inspections; require monitoring, tests, analyses, 
or reports;
     Enforce RCRA requirements; suspend, terminate, modify or 
revoke permits; and
     Take enforcement actions regardless of whether the State 
has taken its own actions.
    This revision will not impose additional requirements on the 
regulated community.

D. Why wasn't there a proposed rule before this rule?

    The EPA did not publish a proposal before today's rule because we 
view this as a correction to the existing federally authorized program 
and do not expect comments that oppose this approval. We are providing 
an opportunity for public comment now. In addition to this rule, in the 
Proposed Rules section of today's Federal Register, we are publishing a 
separate document that proposes to correct Oregon's federally 
authorized program. If we receive comments, which oppose this 
authorization, that document will serve as a proposal to authorize 
these changes.

E. What happens if EPA receives comments on this action?

    If EPA receives comments that oppose this action, EPA will publish 
a document in the Federal Register withdrawing this rule before it 
takes effect. EPA will then address public comments in a later final 
rule based on the proposed rule in this Federal Register. You may not 
have another opportunity to comment. If you want to comment on this 
authorization, you must do so at this time.

F. 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 RCRA 
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); October 
10, 1995, effective December 7, 1995 (60 FR 52629); September 10, 2002, 
effective September 10, 2002 (67 FR 57337); June 26, 2006, effective 
June 26, 2006 (71 FR 36216); and January 7, 2010, effective January 7, 
2010 (75 FR 918).

G. What changes are we authorizing with this action?

    On January 7, 2010, EPA published a final rule under docket EPA-
R10-RCRA 2009-0766 granting final authorization for changes the State 
of Oregon made to its federally authorized RCRA Hazardous Waste 
Management Program. These authorized changes included, among others, 
the Federal Recycled Used Oil Management Standards; Clarification rule, 
promulgated on July 30, 2003. This action will remove the inaccurate 
authorization reference to the Federal Recycled Used Oil Management 
Standards; Clarification rule, promulgation on July 30, 2003 (68 FR 
44659) from the State of Oregon's federally authorized RCRA Hazardous 
Waste Management Program.

H. Who handles permits after the authorization takes effect?

    This authorization does not affect the status of State permits and 
those permits issued by the EPA because no substantive requirements are 
a part of this correction. Oregon will continue to issue permits for 
all the provisions for which it is authorized and administer the 
permits it issues. If EPA issued permits prior to authorizing Oregon 
for these revisions, these permits would continue in force until the 
effective date of the State's issuance or denial of a State hazardous 
waste permit, at which time EPA would modify the existing EPA permit to 
expire at an earlier date, terminate the existing EPA permit for cause, 
or allow the existing EPA permit to otherwise expire by its terms, 
except for those facilities located in Indian Country. EPA will not 
issue new permits or new portions of permits for provisions for which 
Oregon is authorized after the effective date of this authorization. 
EPA will continue to implement and issue permits for HSWA requirements 
for which Oregon is not yet authorized.

[[Page 76635]]

I. What is codification and is EPA codifying Oregon's hazardous waste 
program as authorized in this proposed rule?

    Codification is the process of placing the State's statutes and 
regulations that comprise the State's authorized hazardous waste 
program into the Code of Federal Regulations. This is done by 
referencing the authorized State rules in 40 CFR part 272. EPA is 
reserving the amendment of 40 CFR part 272, subpart MM for codification 
to a later date.

J. How would authorizing Oregon for this correction affect Indian 
country (18 U.S.C. 1151) in Oregon?

    Oregon is not authorized to carry out its hazardous waste program 
in Indian country, as defined in 18 U.S.C. 1151. Indian country 
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 
will continue to implement and administer the RCRA program on these 
lands.

K. Statutory and Executive Order Reviews

    This action corrects the State of Oregon's federally authorized 
hazardous waste program pursuant to section 3006 of RCRA and imposes no 
requirements other than those currently imposed by State law. This 
action complies with applicable executive orders and statutory 
provisions as follows:

1. Executive Order 12866

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO.

2. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b). This action does not establish or 
modify any information or recordkeeping requirements for the regulated 
community. EPA has determined that it is not subject to the provisions 
of the Paperwork Reduction Act.

3. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601 et 
seq., generally requires Federal agencies to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions. For purposes of assessing the impacts of 
this direct final rule on small entities, small entity is defined as: 
(1) A small business, as codified in the Small Business Size 
Regulations at 13 CFR part 121; (2) a small governmental jurisdiction 
that is a government of a city, county, town, school district or 
special district with a population of less than 50,000; and (3) a small 
organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field. EPA 
has determined that this action will not have a significant impact on 
small entities because the action will only have the effect of 
correcting pre-existing authorized requirements under State law. After 
considering the economic impacts of this action, I certify that this 
action will not have a significant economic impact on a substantial 
number of small entities.

4. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. This action imposes no new enforceable duty on any State, local 
or tribal governments or the private sector. This action contains no 
regulatory requirements that might significantly or uniquely affect 
small government entities. Thus, EPA has determined that the 
requirements of section 203 of the UMRA do not apply to this action.

5. Executive Order 13132: Federalism

    This action does not have federalism implications. It 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). This 
action authorizes preexisting State rules. Therefore, EO 13132 does not 
apply to this action. Although section 6 of EO 13132 does not apply to 
this action, because EPA did consult with officials of the State of 
Oregon, Department of Environmental Quality in developing this action.

6. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175. This action revises an existing authorized State 
hazardous waste program in Oregon. This action does not have tribal 
implications, as specified in EO 13175 because EPA retains its 
authority over Indian County. Thus, EPA has determined that EO 13175 
does not apply to this action.

7. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the EO has the potential to influence the regulation. This action is 
not subject to EO 13045 because it corrects an approved state program.

8. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001), because it is not a ``significant regulatory action'' as 
defined under EO 12866.

9. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272) directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus bodies. The NTTAA directs EPA to provide Congress, 
through the OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards bodies. EPA has 
determined that this action does not involve ``technical standards'' as 
defined by the NTTAA. Therefore, EPA is not considering the use of any 
voluntary consensus standards.

[[Page 76636]]

10. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this action will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. This action addresses a revision of the authorized 
hazardous waste program in the State of Oregon. EPA has determined that 
the action is not subject to EO 12898.

11. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as amended 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. EPA will submit a report containing this 
document and other required information to the U.S. Senate, the U.S. 
House of Representatives, and the Comptroller General of the United 
States prior to publication in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This action will be effective February 7, 2011.

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous materials transportation, 
Hazardous waste, Indians--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: December 1, 2010.
Dennis J. McLerran,
Regional Administrator, EPA Region 10.
[FR Doc. 2010-31012 Filed 12-8-10; 8:45 am]
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