[Federal Register: August 27, 2003 (Volume 68, Number 166)]
[Rules and Regulations]
[Page 51488-51492]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27au03-17]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 272
[FRL-7479-3]
Oklahoma: Incorporation by Reference of Approved State Hazardous
Waste Management Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Immediate final rule.
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SUMMARY: The Resource Conservation and Recovery Act (RCRA) allows the
Environmental Protection Agency (EPA) to authorize States to operate
their hazardous waste management programs in lieu of the Federal
program. EPA uses the regulations entitled ``Approved State Hazardous
Waste Management Programs'' to provide notice of the authorization
status of State programs and to incorporate by reference those
provisions of the State statutes and regulations that will be subject
to EPA's inspection and enforcement. The rule codifies in the
regulations the prior approval of Oklahoma's hazardous waste management
program and incorporates by reference authorized provisions of the
State's statutes and regulations. In addition, today's document
corrects technical errors made in the table of authorities published in
previous authorization Federal Register notices for Oklahoma.
DATES: This regulation is effective October 27, 2003, unless EPA
receives adverse written comment on this regulation by the close of
business September 26, 2003. If EPA receives such comments, it will
publish a timely withdrawal of this immediate final rule in the Federal
Register informing the public that this rule will not take effect. The
incorporation by reference of authorized provisions in the Oklahoma
statutes and regulations contained in this rule is approved by the
Director of the Federal Register as of October 27, 2003 in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51.
ADDRESSES: Send written comments referring to Docket Number OK-02-02 to
Alima Patterson, Region 6 Authorization Coordinator, Grants and
Authorization Section (6PD-G), Multimedia Planning and Permitting
Division, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733,
Phone number: (214) 665-8533. You can inspect the records related to
this codification effort from 8:30 a.m. to 4 p.m. Monday through Friday
in the EPA Region 6 Library, 1445 Ross Avenue, Dallas, Texas 75202-
2733.
FOR FURTHER INFORMATION CONTACT: Alima Patterson, Region 6
Authorization Coordinator, Grants and Authorization Section (6PD-G),
Multimedia Planning and Permitting Division, EPA Region 6, 1445 Ross
Avenue, Dallas, Texas 75202-2733, Phone number: (214) 665-8533.
SUPPLEMENTARY INFORMATION:
I. Technical Corrections
A. Corrections to Previously Published Authorization Federal Register
Notices for Oklahoma
There were typographical and effective date errors in the tables of
authorities published as part of the following authorization notices
for Oklahoma. The affected entries are as follows:
1. December 9, 1998 (63 FR 67800) authorization notice:
[[Page 51489]]
(a) All references to ``Sec. 2-7-104'' are corrected to ``Sec. 2-2-
104'';
(b) Specific to Checklist 151 (Item 4), the second reference to
``2-7-106'' is corrected to ``2-7-107A(10)'' the corresponding
effective date of ``July 1, 1994'' is corrected to ``July 1, 1993''.
2. March 29, 2000 (65 FR 16258) authorization notice:
(a) Specific to Checklist 154 (item 2) and Checklist 159 (item 7),
the references to ``2-2104'' are corrected to ``Sec. 2-2-104'';
3. January 2, 2001 (66 FR 28) authorization notice:
(a) Specific to Checklist 166 (Item 1), the reference to ``2-2-
106'' is corrected to ``2-7-106'' .
II. Incorporation By Reference
A. What Is Codification?
Codification is the process of placing a State's statutes and
regulations that comprise the State's authorized hazardous waste
management program into the Code of Federal Regulations (CFR). Section
3006(b) of RCRA, as amended, allows the Environmental Protection Agency
(EPA) to authorize state hazardous waste management programs to operate
in lieu of the federal hazardous waste management regulatory program.
EPA codifies its authorization of the state programs in 40 CFR part 272
and incorporates by reference state statutes and regulations that EPA
will enforce under sections 3007 and 3008 of RCRA and any other
applicable statutory provisions.
The incorporation by reference of state authorized programs in the
Code of Federal Regulations should substantially enhance the public's
ability to discern the current status of the authorized state program
and state requirements that can be federally enforced. This effort
provides clear notice to the public of the scope of the authorized
program in each state.
B. What Is the History of the Authorization and Codification of
Oklahoma's Hazardous Waste Management Program?
Oklahoma received final authorization to implement its Base
Hazardous Waste Management program, effective January 10, 1985, (49 FR
50362) . Subsequently, the EPA approved additional program revision
applications effective on June 18, 1990 (55 FR 14280), November 27,
1990 (55 FR 39274), June 3, 1991 (56 FR 13411), November 19, 1991 (56
FR 47675), November 29, 1993 (58 FR 50854), December 21, 1994 (59 FR
51116), April 27, 1995 (60 FR 2699), March 14, 1997 (62 FR 12100), July
14, 1998 (63 FR 23673) and November 23, 1998 (63 FR 50528). The EPA
incorporated by reference Oklahoma's then authorized hazardous waste
program effective December 13, 1993 (58 FR 52679), July 14, 1998 (63 FR
23673) and October 25, 1999 (64 FR 46567). Effective February 8, 1999
(63 FR 67800), May 30, 2000 (65 FR 16528), July 10, 2000 (65 FR 29981),
and March 5, 2001 (66 FR 28), EPA granted authorization to Oklahoma for
additional program revisions. In this document, EPA is approving a
change to the Oklahoma regulations at OKLA. ADMIN. CODE section
252:205-7-4, which makes it clear that transporters are prohibited from
mixing or combining incompatible hazardous waste within a common
container.
C. What Decisions Have We Made in This Rule?
The purpose of today's Federal Register document is to codify
Oklahoma's base hazardous waste management program and its revisions to
that program. EPA provided notices and opportunity for comments on the
agency's decisions to authorize the Oklahoma program. EPA is not now
reopening the decisions, nor requesting comments, on the Oklahoma
authorizations as published in the Federal Register notices specified
in Section B of this document.
This document incorporates by reference Oklahoma's hazardous waste
statutes and regulations and clarifies which of these provisions are
included in the authorized and federally enforceable program. By
codifying Oklahoma's authorized program and by amending the Code of
Federal Regulations, the public will be more easily able to discern the
status of federally approved requirements of the Oklahoma hazardous
waste management program.
The EPA is incorporating by reference the Oklahoma authorized
hazardous waste program in subpart LL of 40 CFR part 272. 40 CFR
272.1851 incorporates by reference Oklahoma's authorized hazardous
waste statutes and regulations. Section 272.1851 also references the
statutory provisions (including procedural and enforcement provisions)
which provide the legal basis for the state's implementation of the
hazardous waste management program, the Memorandum of Agreement, the
Attorney General's Statements and the Program Description, which are
approved as part of the hazardous waste management program under
Subtitle C of RCRA.
D. What Is the Effect of Oklahoma's Codification on Enforcement?
The EPA retains its authority under statutory provisions, including
but not limited to, RCRA sections 3007, 3008, 3013 and 7003, and other
applicable statutory and regulatory provisions to undertake inspections
and enforcement actions and to issue orders in all authorized states.
On occasion when EPA might need to undertake these actions, it will
rely on Federal sanctions, Federal inspection authorities, and Federal
procedures rather than any authorized state analogues to these
provisions. Therefore, the EPA is not incorporating by reference any
such approved Oklahoma procedural and enforcement authorities. 40 CFR
272.1851(b)(2) lists the statutory provisions which provide the legal
basis for the state's implementation of the hazardous waste management
program, as well as those procedural and enforcement authorities that
are part of the state's approved program, but these are not
incorporated by reference.
E. What State Provisions Are Not Part of the Codification?
The public needs to be aware that some provisions of Oklahoma's
hazardous waste management program are not part of the federally
authorized state program. These non-authorized provisions include:
(1) Provisions that are not part of the RCRA subtitle C program
because they are ``broader in scope'' than RCRA subtitle C (see 40 CFR
271.1(i));
(2) Federal rules for which Oklahoma is not authorized, but which
have been incorporated into the state regulations because of the way
the state adopted Federal regulations by reference.
State provisions that are ``broader in scope'' than the Federal
program are not part of the RCRA authorized program and EPA will not
enforce them. Therefore, they are not incorporated by reference in 40
CFR part 272. For reference and clarity, 40 CFR 272.1851(b)(3) lists
the Oklahoma regulatory provisions which are ``broader in scope'' than
the Federal program and which are not part of the authorized program
being incorporated by reference. ``Broader in scope'' provisions cannot
be enforced by EPA; the state, however, may enforce such provisions
under state law.
Oklahoma has adopted but is not authorized for the Federal rule
regarding exclusion of a waste from the list of hazardous waste, 40 CFR
260.20 et seq., (``delisting'') published on July 15, 1985 (50 FR
28702) and amended on June 27,
[[Page 51490]]
1989 (54 FR 27114); and the Federal rules published in the Federal
Register on October 5, 1990 (55 FR 40834); February 1, 1991 (56 FR
3978); February 13, 1991 (56 FR 5910); April 2, 1991 (56 FR 13406); May
1, 1991 (56 FR 19951); December 23, 1991 (56 FR 66365); June 29, 1995
(60 FR 33912) and May 26, 1998 (63 FR 28556). Therefore, these Federal
amendments included in Oklahoma's adoption by reference at OKLA. ADMIN.
CODE sections 252:205-7-4, 252:205-3-2(b) through 252:205-3-2(k), are
not part of the state's authorized program and are not part of the
incorporation by reference addressed by today's Federal Register
document.
With respect to any requirement pursuant to the Hazardous and Solid
Waste Amendments of 1984 (HSWA) for which the State has not yet been
authorized, EPA will continue to enforce the Federal HSWA standards
until the State is authorized for these provisions.
F. What Will Be the Effect of Federal HSWA Requirements on the
Codification?
The EPA is not amending 40 CFR part 272 to include HSWA
requirements and prohibitions that are implemented by EPA. Section
3006(g) of RCRA provides that any HSWA requirement or prohibition
(including implementing regulations) takes effect in authorized and not
authorized states at the same time. A HSWA requirement or prohibition
supersedes any less stringent or inconsistent state provision which may
have been previously authorized by EPA (50 FR 28702, July 15, 1985).
EPA has the authority to implement HSWA requirements in all states,
including authorized states, until the states become authorized for
such requirement or prohibition. Authorized states are required to
revise their programs to adopt the HSWA requirements and prohibitions,
and then to seek authorization for those revisions pursuant to 40 CFR
part 271.
Instead of amending the 40 CFR part 272 every time a new HSWA
provision takes effect under the authority of RCRA section 3006(g), EPA
will wait until the state receives authorization for its analog to the
new HSWA provision before amending the state's 40 CFR part 272
incorporation by reference. Until then, persons wanting to know whether
a HSWA requirement or prohibition is in effect should refer to 40 CFR
271.1(j), as amended, which lists each such provision.
Some existing state requirements may be similar to the HSWA
requirement implemented by EPA. However, until EPA authorizes those
state requirements, EPA can only enforce the HSWA requirements and not
the state analogs. EPA will not codify those state requirements until
the state receives authorization for those requirements.
III. Administrative Requirements
The Office of Management and Budget (OMB) 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
rule incorporates by reference Oklahoma's authorized hazardous waste
management regulations and does not impose new burdens on small
entities. 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 rule merely incorporates by reference certain existing State
hazardous waste management program requirements which EPA already
approved under 40 CFR part 271, and with which regulated entities must
already comply, 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 action also does not have tribal implications within the
meaning of Executive Order 13175 (65 FR 67249, November 6, 2000). It
does not have substantial direct effects on tribal governments, on the
relationship 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 Federal 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 incorporates by reference existing
authorized state hazardous waste management program requirements
without altering the relationship or the distribution of power and
responsibilities established by RCRA. This action also is not subject
to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is
not economically significant and it does not make decisions based on
environmental health or safety risks. This 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.
The requirements being codified are the result of Oklahoma's
voluntary participation in EPA's State program authorization process
under RCRA Subtitle C. 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 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 rule does not impose an information
collection burden under the provisions of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as 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 October 27, 2003.
List of Subjects in 40 CFR Part 272
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Hazardous waste
transportation, Incorporation by reference, Indian lands,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements, Water pollution control, Water supply.
Authority: This action is issued under the authority of sections
2002(a), 3006 and
[[Page 51491]]
7004(b) of the Solid Waste Disposal Act as amended, 42 U.S.C.
6912(a), 6926, 6974(b).
Dated: March 27, 2003.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.
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For the reasons set forth in the preamble, 40 CFR part 272 is amended
as follows:
PART 272--APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS
0
1. The authority citation for part 272 continues to read as follows:
Authority: Secs. 2002(a), 3006, and 7004(b) of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).
Subpart LL--[Amended]
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2. Section 272.1851 is revised to read as follows:
Sec. 272.1851 Oklahoma State-administered program: Final
authorization.
(a) Pursuant to section 3006(b) of RCRA, 42 U.S.C. 6926(b),
Oklahoma has final authorization for the following elements as
submitted to EPA in Oklahoma's base program application for final
authorization which was approved by EPA effective on January 10, 1985.
Subsequent program revision applications were approved effective on
June 18, 1990, November 27, 1990, June 3, 1991, November 19, 1991,
November 29, 1993, December 21, 1994, April 27, 1995, March 14, 1997,
July 14, 1998, November 23, 1998, February 8, 1999, May 30, 2000, July
10, 2000 and March 5, 2001.
(b) State Statutes and Regulations.
(1) The Oklahoma statutes and regulations cited in paragraph
(b)(1)(i) of this section are incorporated by reference as part of the
hazardous waste management program under subtitle C of RCRA, 42 U.S.C.
6921 et seq. (See Sec. 272.2).
(i) The Binder entitled ``EPA Approved Oklahoma Statutory and
Regulatory Requirements Applicable to the Hazardous Waste Management
Program'', dated March, 2001.
(ii) [Reserved]
(2) The following provisions provide the legal basis for the
State's implementation of the hazardous waste management program, but
they are not being incorporated by reference and do not replace Federal
authorities:
(i) Oklahoma Hazardous Waste Management Act, as amended, 27A
Oklahoma Statute (O.S.) 1997 Edition (unless otherwise specified),
Sections 2-2-104, 2-7-102, 2-7-104, 2-7-105 (except 2-7-105(27), 2-7-
105(29) and 2-7-105(34)), 2-7-106, 2-7-107, 2-7-108(B)(2), 2-7-110(A),
2-7-113.1, 2-7-115, 2-7-116(A), 2-7-116(G), 2-7-116(H)(1), 2-7-123, 2-
7-126 (1999 Supplement), 2-7-129, 2-7-130, 2-7-131 and 2-7-133.
(ii) The Oklahoma Administrative Code, Title 252, Chapter 205,
Hazardous Waste Management, effective June 12, 2000: Subchapter 1,
Sections 252:205-1-1(b), 252:205-1-3(a) and (b), 252:205-1-4(a)-(d);
Subchapter 3, Sections 252:205-3-2 introductory paragraph, and 252:205-
3-2(a)(1).
(3) The following statutory and regulatory provisions are broader
in scope than the Federal program, are not part of the authorized
program, and are not incorporated by reference:
(i) Oklahoma Hazardous Waste Management Act, as amended, 27A
Oklahoma Statute 1997 Edition, Sections 2-7-119, 2-7-121 and 2-7-134.
(ii) The Oklahoma Administrative Code, Title 252, Chapter 205,
effective June 12, 2000: Subchapter 1, Section 252:205-1-1(c)(2)-(4),
252:205-1-2 ``RRSIA''. 252:205-1-2 ``Reuse'', 252:205-1-2 ``Speculative
accumulation'', 252:205-1-2 ``Transfer facility'', 252:205-1-2
``Transfer station'', 252:205-1-4(e) and (f); Subchapter 5, Sections
252:205-5-1(4), Subchapter 15; Subchapter 17; Subchapter 21; and
252:205 Appendices A, B, and C.
(4) Unauthorized State Amendments. The State's adoption of the
Federal rules listed below is not yet approved by EPA and is,
therefore, not enforceable:
------------------------------------------------------------------------
Federal Register Publication
Federal requirement reference date
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Delisting......................... 50 FR 28702......... 07/15/85
54 FR 27114......... 06/27/89
Amendments to
260.22(a) through
260.22(e)..
Toxicity Characteristics; 55 FR 40834......... 10/05/90
Hydrocarbon Recovery Operations. 56 FR 3978.......... 02/01/91
56 FR 13406......... 04/02/92
Toxicity Characteristics; 56 FR 5910.......... 02/13/91
Chlorofluorocarbon Refrigerants.
Administrative Stay for K069 56 FR 19951......... 05/01/91
Listing.
Amendments to Interim Status 56 FR 66365......... 12/23/91
Standards for Downgradient Ground-
water Monitoring Well Locations.
Removal of Legally Obsolete Rules. 60 FR 33912......... 06/29/95
Mineral Processing Secondary 63 FR 28556......... 05/26/98
Materials Exclusion.
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(5) Memorandum of Agreement. The Memorandum of Agreement between
EPA Region 6 and the State of Oklahoma (ODEQ), signed by the EPA
Regional Administrator on March 1, 2000, is referenced as part of the
authorized hazardous waste management program under subtitle C of RCRA,
42 U.S.C. 6921 et seq.
(6) Statement of Legal Authority. ``Attorney General's Statement
for Final Authorization'', signed by the Attorney General of Oklahoma
on January 20, 1984 and revisions, supplements and addenda to that
Statement dated January 14, 1988 (as amended July 20, 1989); December
22, 1988 (as amended June 7, 1989 and August 13, 1990); November 20,
1989; November 16, 1990; November 6, 1992; June 24, 1994; December 8,
1994; March 4, 1996; April 15, 1997; February 6, 1998, December 2,
1998, October 15, 1999 and May 31, 2000, are referenced as part of the
authorized hazardous waste management program under subtitle C of RCRA,
42 U.S.C. 6921 et seq.
(7) Program Description. The Program Description and any other
materials submitted as supplements thereto are referenced as part of
the authorized hazardous waste management program under subtitle C of
RCRA, 42 U.S.C. 6921 et seq.
0
3. Appendix A to part 272 is amended by revising the listing for ``
Oklahoma'' to read as follows:
Appendix A to Part 272--State Requirements
* * * * *
[[Page 51492]]
Oklahoma
The statutory provisions include:
Oklahoma Hazardous Waste Management Act, as amended, 27A Oklahoma
Statute 1997 Edition, Sections 2-7-103, 2-7-108(A), 2-7-108(B)(1), 2-7-
108(B)(3), 2-7-108(C), 2-7-110(B), 2-7-110(C), 2-7-111(A), 2-7-111(B)
(except the last sentence and the phrase, `` recycling'' in the first
sentence), 2-7-111(C)(2)(a) (except the phrase ``Except as provided in
subparagraph b of this paragraph'' and the word ``recycling'' in the
first sentence), 2-7-111(D), 2-7-111(E) (except the word ``recycling''
in the first sentence), 2-7-112, 2-7-116(B) through 2-7-116(F), 2-7-
116(H)(2), 2-7-118(A), 2-7-124, 2-7-125, 2-7-127 and 2-10-301(G).
Copies of the Oklahoma statutes that are incorporated by reference
are available from West Publishing Company, 610 Opperman Drive, PO Box
64526, St. Paul, Minnesota 55164-0526.
The regulatory provisions include:
The Oklahoma Administrative Code, Title 252, Chapter 205, effective
June 12, 2000: Subchapter 1, Sections 252:205-1-1(a), 252:205-1-1(c)
introductory paragraph, 252:205-1-1(c)(1), 252:205-1-2 introductory
paragraph, 252:205-1-2 ``OHWMA'', 252:205-1-2 ``Post-closure permit'',
252:205-1-3(c); Subchapter 3, Sections 252:205-3-1, 252:205-3-2(a)(2),
252:205-3-2(b)-(m), 252:205-3-4, 252:205-3-5 and 252:205-3-6;
Subchapter 5, Sections 252:205-5-1 (except 252:205-5-1(4)), 252:205-5-2
through 252:205-5-5; Subchapter 7, Sections 252:205-7-1 through
252:205-7-3 and 252:205-7-4 (except the phrase ``or in accordance with
252:205-15-1(d)); Subchapter 9 (except 252:205-9-5 and 252:205-9-6);
Subchapter 11, 252:205-11-1(a) (except the word ``recycling''),
252:205-11-1(b) through 252:205-11-1(e) and 252:205-11-2; and
Subchapter 13, Sections 252:205-13-1(a)--(e).
Copies of the Oklahoma regulations that are incorporated by
reference can be obtained from The Oklahoma Register, Office of
Administrative Rules, Secretary of State, 101 State Capitol, Oklahoma
City, Oklahoma 73105.
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[FR Doc. 03-21592 Filed 8-26-03; 8:45 am]
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