[Federal Register Volume 83, Number 192 (Wednesday, October 3, 2018)]
[Proposed Rules]
[Pages 49900-49903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21449]
[[Page 49900]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[EPA-R06-RCRA-2017-0324; FRL-9984-40--Region 6]
Oklahoma: Proposed Authorization of State Hazardous Waste
Management Program Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The State of Oklahoma Department of Environmental Quality
(ODEQ) has applied to the Environmental Protection Agency (EPA) for
final authorization of the changes to its hazardous waste program under
the Resource Conservation and Recovery Act (RCRA). The EPA has reviewed
Oklahoma's application, and has determined that these changes satisfy
all requirements needed to qualify for final authorization, and is
proposing to authorize the State's changes. The EPA is seeking public
comment prior to taking final action.
DATES: Comments on this proposed rule must be received by November 2,
2018.
ADDRESSES: Submit your comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
Email: [email protected].
Fax: (214) 665-2182 (prior to faxing, please notify Alima
Patterson at (214) 665-8533).
Mail: Alima Patterson, Regional Authorization/Codification
Coordinator, RCRA Permit Section (6MM-RP), Multimedia Division, EPA
Region 6, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.
Hand Delivery or Courier: Deliver your comments to Alima
Patterson, Regional Authorization/Codification Coordinator, RCRA Permit
Section (6MM-RP), Multimedia Division, EPA Region 6, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202-2733.
Instructions: EPA must receive your comments by November 2, 2018.
Direct your comments to Docket ID Number EPA-R06-RCRA-2017-0324. The
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
email. The Federal http://www.regulations.gov website is an ``anonymous
access'' system, which means the EPA will not know your identity or
contact information unless you provide it in the body of your comment.
If you send an email comment directly to the EPA without going through
regulations.gov, your email 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,
the 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 the EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, the EPA may not
be able to consider your comment. Electronic files should avoid the use
of special characters, any form of encryption, and be free of any
defects or viruses. (For additional information about the EPA's public
docket, visit the EPA Docket Center homepage at http://www.regulations.gov).
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.
You can view and copy Oklahoma's application and associated
publicly available materials from 8:30 a.m. to 4 p.m., Monday through
Friday, at the following locations: Oklahoma Department of
Environmental Quality, 707 North Robinson, Oklahoma City, Oklahoma
73101-1677, (405) 702-7180 and EPA, Region 6, 1445 Ross Avenue, Suite
1200, Dallas, Texas 75202-2733, phone number (214) 665-8533. Interested
persons wanting to examine these documents should make an appointment
with the office at least two weeks in advance.
FOR FURTHER INFORMATION CONTACT: Alima Patterson, Region 6, Regional
Authorization/Codification Coordinator, Permit Section (6MM-RP),
Multimedia Division, (214) 665-8533, EPA Region 6, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202-2733, and Email address
[email protected].
SUPPLEMENTARY INFORMATION:
A. Why are revisions to State programs necessary?
States which have received final authorization from the 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 the 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 the EPA's regulations in 40 Code of Federal
Regulations (CFR) parts 124, 260 through 266, 268, 270, 273, and 279.
B. What decisions has the EPA made in this rule?
On March 31, 2017, the ODEQ submitted a final program revision
application, excluding the Definition of Solid Waste (DSW), rule
seeking authorization of changes to its hazardous waste program that
correspond to Federal rules promulgated between July 2014 and June 2015
(RCRA Cluster XXIV). The EPA has reviewed Oklahoma's application to
revise its authorized program and has made a tentative decision that it
meets all of the statutory and regulatory requirements established by
RCRA. Therefore, we propose to grant ODEQ final authorization to
operate its hazardous waste program with the changes described in the
authorization application. ODEQ will continue to have responsibility
for permitting treatment, storage, and disposal facilities within its
borders, and 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). New Federal
requirements and prohibitions imposed by Federal regulations that the
EPA promulgates under the authority of HSWA take effect in authorized
States before they are authorized for the requirements. Thus, the EPA
will implement those requirements and prohibitions in Oklahoma,
including issuing permits, until the State is granted authorization to
do so.
C. What is the effect of this proposed authorization decision?
If Oklahoma is authorized for these changes, a facility in Oklahoma
subject
[[Page 49901]]
to RCRA will now have to comply with the authorized State requirements
instead of the equivalent Federal requirements in order to comply with
RCRA. Additionally, such facilities will have to comply with any
applicable Federal requirements such as, for example, HSWA regulations
issued by the EPA for which the State has not received authorization.
ODEQ continues to have enforcement responsibilities under its State
hazardous waste program for violations of such program, but the EPA
retains its authority under RCRA sections 3007, 3008, 3013, and 7003,
which include, among others, authority to:
Conduct inspections, and require monitoring, tests,
analyses, or reports;
enforce RCRA requirements and suspend or revoke permits,
and
take enforcement actions after notice to and consultation
with the State.
The action to approve these provisions would not impose additional
requirements on the regulated community because the regulations for
which ODEQ is requesting authorization are already effective under
State law, and are not changed by the act of authorization.
D. What happens if the EPA receives comments on this action?
If the EPA receives comments on this proposed action, we will
address those comments in our final action. You may not have another
opportunity to comment. If you want to comment on this proposed
authorization, you must do so at this time.
E. For what has Oklahoma previously been authorized?
ODEQ initially received final authorization on January 10, 1985 (49
FR 50362-50363), published December 27, 1984, to implement its base
hazardous waste management program. We authorized the following
revisions: ODEQ received authorization for revisions to its program
with publication dates: April 17, 1990 (55 FR 14280-14282), effective
June 18, 1990; September 26, 1990 (55 FR 39274), effective November 27,
1990; April 2, 1991 (56 FR 13411-13413), effective June 3, 1991;
September 20, 1991 (56 FR 47675-47677), effective November 19, 1991;
September 29, 1993 (58 FR 50854-50856), effective November 29, 1993;
October 12, 1993 (58 FR 52679-52682), effective December 13, 1993;
October 7, 1994 (59 FR 51116-51122), effective December 21, 1994;
January 11, 1995 (60 FR 2699-2702), effective April 27, 1995; October
9, 1996 (61 FR 52884-52886), effective December 23, 1996; Technical
Correction March 14, 1997 (62 FR 12100-12101), effective March 14,
1997; September 22, 1998 (63 FR 50528-50531), effective November 23,
1998; March 29, 2000 (65 FR 16528-16532), effective May 30, 2000; May
10, 2000 (65 FR 29981-29985), effective June 10, 2000; January 2, 2001
(66 FR 28-33), effective March 5, 2001; April 9, 2003 (68 FR 17308-
17311), effective June 9, 2003; February 4, 2009 (74 FR 5994-6001),
effective April 6, 2009; April 6, 2011 (76 FR 18927-18930), effective
June 6, 2011; March 15, 2012 (77 FR 15273-15276), effective May 14,
2012; May 29, 2013 (78 FR 32161-32165), effective July 29, 2013; and
August 29, 2014 (79 FR 51497-51500), effective October 28, 2014. The
authorized Oklahoma RCRA program was incorporated by reference into the
CFR published on October 12, 1993 (58 FR 52679-52682), effective
December 13, 1993; April 30, 1998 (63 FR 23673-23678), effective July
14, 1998; August 26, 1999 (64 FR 46567-46571), effective October 25,
1999; August 27, 2003 (68 FR 51488-51492), effective October 27, 2003;
June 28, 2010 (75 FR 36546-36550), effective August 27, 2010; May 17,
2012 (77 FR 29231-29235), effective July 16, 2012; August 7, 2012, (77
FR 46964-46968), effective October 9, 2012; and July 1, 2014 (79 FR
37226-37230), effective September 2, 2014 and July 13, (82 FR 32249-
32252) effective September 11, 2017. On March 31, 2017, ODEQ submitted
a final program revision application seeking authorization of its
program revision in accordance with 40 CFR 271.21.
The Oklahoma Hazardous Waste Management Act (OHWMA) provides the
ODEQ with the authority to administer the State Program, including the
statutory and regulatory provisions necessary to administer portions of
the provisions of RCRA Cluster XXIV, and designates the ODEQ as the
State agency to cooperate and share information with EPA for purpose of
hazardous waste regulation. The Oklahoma Environmental Quality Code
(``Code''), at 27A O.S. Section 2-7-101 et seq. establishes the
statutory authority to administer the hazardous waste management
program under RCRA Subtitle C. The State regulations to manage the
hazardous waste management program is at Oklahoma Administrative Code
(OAC) Title 252:205-3-2.
The Oklahoma Legislature in April 2015 amended the OHWMA by passing
27A O.S. Sec. 2-7-116(H), which clarified that the temporary staging
of hazardous waste in a permitted hazardous waste unit while the waste
was undergoing analysis to determine that the waste is acceptable for
disposal does not constitute disposal of the waste. This provision,
effecting what constitutes disposal in Oklahoma, has not been submitted
for EPA review and we are taking no action on it in this rulemaking.
The ODEQ adopted applicable federal hazardous waste regulations as
amended July 1, 2014 through June 30, 2015. The regulatory amendment
implementing this adoption by reference has an effective date of
September 15, 2016. The provisions for which the State of Oklahoma is
seeking authorization, as documented in the Regulatory Documentation
For Federal Provisions For Which The State Of Oklahoma Is Seeking
Authorization, Federal Final Rules Published Between July 1, 2014
Through June 30, 2015 RCRA CLUSTER XXIV, excluding the DSW rule;
prepared on Feburary 21, 2017.
The ODEQ incorporates the Federal Regulations by reference, and
there have been no changes in State or Federal laws or regulations that
have diminished the ODEQ's ability to adopt the Federal regulations by
reference. The Federal hazardous waste regulations are adopted by
reference by the ODEQ at OAC 252:205-3-2, Subchapter 3. The ODEQ does
not adopt Federal regulations prospectively.
The State hazardous waste management program (``State Program'')
has in place, the statutory authority and regulations for all required
components of federal regulations adopted in Checklists 234 and 235 in
RCRA Cluster XXIV. These statutory and regulatory provisions were
developed to ensure the State program is equivalent to, consistent
with, and no less stringent than the Federal hazardous waste management
program.
The Environmental Quality Act, at 27A O.S. Section 1-3-101(E),
grants the Oklahoma Corporation Commission (OCC) authority to regulate
certain aspects of the oil and gas production and transportation
industry in Oklahoma, including certain wastes generated by pipelines,
bulk fuel sales terminals and certain tank farms, as well as,
underground storage tanks. To clarify areas of environmental
jurisdiction, the ODEQ and OCC developed an ODEQ/OCC Jurisdictional
Guidance Document to identify respective areas of jurisdiction. The
current ODEQ/OCC Jurisdictional Guidance Document was amended and
signed on January 27, 1999. The revisions to the State Program
necessary to administer portions of RCRA Cluster XXIV will not affect
the jurisdictional authorities of the ODEQ or OCC.
[[Page 49902]]
The ODEQ has adopted portions of RCRA Cluster XXIV applicable
federal hazardous waste regulations as amended July 1, 2014 through
June 30, 2015, and became effective on September 15, 2016. The rules
were also codified at OAC 252 Chapter 205.
Pursuant to OAC 252:205-3-2, the State's incorporation of Federal
regulations does not incorporate, prospectively, future changes to the
incorporated sections of the 40 CFR, and no other Oklahoma law or
regulation reduces the scope of coverage or otherwise affects the
authority provided by these incorporated-by-reference provisions.
Further, Oklahoma interprets these incorporated provisions to provide
identical authority to the Federal provisions. Thus, OAC Title 252,
Chapter 205 provides equivalent and no less stringent authority than
the Federal Subtitle C program in effect July 1, 2015. The State of
Oklahoma incorporates by reference the provisions of 40 CFR part 124
that are required by 40 CFR 271.14 (with the addition of 40 CFR
124.19(a) through (c), 124.19(e), 124.31, 124.32, 124.33 and Subpart
G); 40 CFR parts 260 through 268 [with the exception of 260.21, 262
Subparts E and H, 264.1(f), 264.1(g)(12), 264.149, 264.150, 264.301(1),
264.1030(d), 264.1050(g), 264.1080(e), 264.1080(f), 264.1080(g),
265.1(c)(4), 265.1(g)(12), 265.149, 265.150, 265.1030(c), 265.1050(f)
265.1080(e), 265.1080(f), 265.1080(g), 268.5, 268.6, 268.13, 268.42(b),
and 268.44(a) through (g)]; 40 CFR part 270 [with the exception of
270.1(c)(2)(ix) and 270.14(b)(18)]; 40 CFR part 273; and 40 CFR part
279.
The ODEQ is the lead Department to cooperate and share information
with the EPA for purpose of hazardous waste regulation.
Pursuant to 27A O.S. Section 2-7-104, the Executive Director has
created the Land Protection Division (LPD) to be responsible for
implementing the State Program. The LPD is staffed with personnel that
have the technical background and expertise to effectively implement
the provisions of the State Program Subtitle C hazardous waste
management program.
F. What changes are we proposing to authorize with this action?
On March 31, 2017, the ODEQ submitted a final complete program
application seeking authorization of their changes in accordance with
40 CFR 271.21. We have determined that the ODEQ's hazardous waste
program revision satisfies all of the requirements necessary to qualify
for final authorization. We are now proposing to authorize, subject to
receipt of written comments that oppose this action, Oklahoma's
hazardous waste program revision. The ODEQ revisions consist of
regulations which specifically govern Federal hazardous waste revisions
promulgated between July 1, 2014 through June 30, 2015 (RCRA Cluster
XXIV), excluding the Defintion of Solid Waste rule. We propose to grant
Oklahoma final authorization for the ODEQ requirements included in the
Table within this document. Requirement 2 in the Table below concerns
changes based on Coal Combustion Residuals Rulemaking (CCR) . In that
rulemaking, the Agency amended 40 CFR 261.4(b)(4) under RCRA Subtitle C
to clarify that ``wastes produced in conjunction with the combustion of
fossil fuels, which are necessarily associated with the production of
energy, and which traditionally have been, and which actually are,
mixed with and co-disposed or co-treated with fly ash, bottom ash,
boiler slag, or flue gas emission control wastes from coal combustion
are not hazardous wastes.'' The Requirement 2 in the Table below only
addresses this change to Subtitle C. CCR also amended 40 CFR part 257
to regulate the disposal of (CCR) as solid waste under Subtitle D. This
is not part of this Proposal. In a separate action, EPA has proposed
approval of a CCR permitting program for Oklahoma. See, 83 FR 2100,
January 16, 2018.
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Federal Register
Description of federal date and page and/ Analogous state
requirement (include checklist or RCRA statutory authority
number, if relevant) authority
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1. Vacatur of the Comparable 80 FR 18777-18780 Oklahoma Statutes
Fuels Rule and the April 8, 2015, Title 27A Section 2-
Gasification Rule. (Checklist effective April 7-101 et seq.,
234). 8, 2015. Oklahoma Hazardous
Waste Management
Act, as amended
September 15, 2015,
Oklahoma
Administrative Code,
Title 252, Chapter
205, Section 252:205-
3-2, effective
September 15, 2016.
2. Disposal of Coal Combustion 80 FR 21302-21501 Oklahoma Statutes
Residuals from Electric April 17, 2015; Title 27A Section 2-
Utilities. (Checklist 235). effective 7-101 et seq.,
October 19, 2015 Oklahoma Hazardous
[40 CFR Waste Management
261.4(b)(4)(i)-( Act, as amended
ii)(H) only]. September 15, 2015,
Oklahoma
Administrative Code,
Title 252, Chapter
205, Section 252:205-
3-2, effective
September 15, 2016.
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G. Why are the revised State rules different from the Federal rules?
There are no State requirements that are more stringent or broader
in scope than the Federal requirements.
H. Who handles permits after the final authorization takes effect?
ODEQ will continue to issue permits for all the provisions for
which it is authorized and will administer the permits it issues. The
EPA will continue to administer any RCRA hazardous waste permits or
portions of permits which we issued prior to the effective date of this
authorization. We will not issue any more new permits or new portions
of permits for the provisions listed in the Table in this document
after the effective date of this authorization. The EPA will continue
to implement and issue permits for HSWA requirements for which Oklahoma
is not yet authorized.
I. How does this action affect Indian Country (18 U.S.C. 1151) in
Oklahoma?
Section 18 U.S.C. 1151 does not affect the State of Oklahoma
because under section 10211(a) of the SAFETEA, Public Law 109-59, 119
Statute 1144 (August 10, 2005) provides the State of Oklahoma
opportunity to request approval from EPA to administer RCRA Subtitle C
in Indian Country and for carrying out the aspects of the RCRA program
described in its revised program application, subject to the
limitations of the HSWA.
K. What is codification and is the EPA codifying Oklahoma'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 CFR. We do this by referencing the authorized State
rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272,
subpart LL for this proposed authorization of ODEQ's program changes
until a later date. In this action, the EPA is not proposing to
[[Page 49903]]
codify the rules documented in this Federal Register document.
I. Administrative Requirements
The Office of Management and Budget (OMB) has exempted this action
from the requirements of Executive Orders 12866 (58 FR 51735, October
4, 1993) and 13563 (76 FR 3821, January 21, 2011). This action proposes
to authorize State requirements for the purpose of RCRA 3006 and
imposes no additional requirements beyond those imposed by State law.
Therefore, this action is not subject to review by OMB. This action is
not an Executive Order 13771 (82FR 9339, February 3, 2017) regulatory
action because actions such as today's proposed authorization of the
State of Oklahoma's revised hazardous waste program under RCRA are
exempted under Executive Order 12866. 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 proposes to authorize preexisting
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
(Pub. L. 104-4). For the same reason, this proposed action also does
not significantly or uniquely affect the communities of Tribal
governments, as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000).
This action will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132 (64 FR
43255, August 10, 1999), because it merely proposes to authorize 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 proposed action also is not subject to Executive Order 13045
(62 FR 19885, April 23, 1997), because it is not economically
significant and it does not make decisions based on environmental
health or safety risks. This proposed rule is not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355 May 22, 2001),
because it is not a significant regulatory action under Executive Order
12866.
Under RCRA 3006(b), the 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 the 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 note) do not apply. As required
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996),
in issuing this proposed rule, the EPA has taken the necessary steps to
eliminate drafting errors and ambiguity, minimize potential litigation,
and provide a clear legal standard for affected conduct.
The 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
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Executive Order 12898 (59 FR 7629, February 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, the 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. Because this rule proposes to
authorize pre-existing State rules which are at least equivalent to,
and no less stringent than existing federal requirements, and imposes
no additional requirements beyond those imposed by State law, and there
are no anticipated significant adverse human health or environmental
effects, the rule is not subject to Executive Order 12898.
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: September 26, 2018.
Anne L. Idsal,
Regional Administrator, Region 6.
[FR Doc. 2018-21449 Filed 10-2-18; 8:45 am]
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