Oregon: Final Authorization of State Hazardous Waste Management Program Revision, 918-922 [2010-13]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 4 (Thursday, January 7, 2010)]
[Rules and Regulations]
[Pages 918-922]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-13]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R10-RCRA-2009-0766; FRL-9098-6]


Oregon: Final Authorization of State Hazardous Waste Management 
Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Oregon has applied to EPA for final authorization of certain 
changes to its hazardous waste management program under the Resource 
Conservation and Recovery Act, as amended (RCRA). On November 18, 2009, 
EPA published a proposed rule to authorize the changes and opened a 
public comment period under Docket ID No. EPA-R10-RCRA-2009-0766. The 
comment period closed on December 18, 2009. EPA has decided that the 
revisions to the Oregon hazardous waste management program satisfy all 
of the requirements necessary to qualify for final authorization and 
EPA is authorizing these revisions to Oregon's

[[Page 919]]

authorized hazardous waste management program in this final rule.

DATES: Effective Date: Final authorization for the revisions to the 
hazardous waste management program in Oregon shall be effective at 1 
p.m. EST on January 7, 2010.

ADDRESSES: EPA established a docket for this action under Docket ID No. 
EPA-R10-RCRA-2009-0766. All documents in the docket are available 
electronically on the Web site https://www.regulations.gov. A hard copy 
of the authorization application is also available for viewing, during 
normal business hours, at the U.S. Environmental Protection Agency 
Region 10, Office of Air Waste and Toxics, 1200 Sixth Avenue., Suite 
900, Seattle, Washington 98101, contact Nina Kocourek at (206) 553-
6502; or at the Oregon Department of Environmental Quality, 811 SW 
Sixth, Portland, Oregon 97204, contact Scott Latham at (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: kocourek.nina@epa.gov.

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 
management 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 
hazardous waste management program. Under section 3009, States are not 
allowed to impose any requirements which are less stringent than the 
Federal program. 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?

    EPA has made a final determination that Oregon's application to 
revise its authorized program meets all of the statutory and regulatory 
requirements established by RCRA. Therefore, we are granting Oregon 
final authorization to operate its hazardous waste management program 
with the changes described in the authorization application. Oregon 
will 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 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 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?

    The effect of this action is that a facility in Oregon subject to 
RCRA will have to comply with the authorized State requirements in lieu 
of the corresponding Federal requirements in order to comply with RCRA. 
Additionally, 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 has enforcement responsibilities under its State 
hazardous waste management program for violations of its currently 
authorized program and will have enforcement responsibilities for the 
revisions which are the subject of this final rule. EPA continues to 
have independent enforcement 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, including State program 
requirements that are authorized by EPA and any applicable Federally-
issued statutes and regulations; suspend, terminate, modify or revoke 
permits; and
     Take enforcement actions regardless of whether the State 
has taken its own actions.
    This action approving these revisions will not impose additional 
requirements on the regulated community because the regulations for 
which Oregon's program is being authorized are already effective under 
State law.

D. What Were the Comments on EPA's Proposed Rule?

    On November 18, 2009 (74 FR 59497), EPA published a proposed rule 
to grant authorization of changes to Oregon's hazardous waste 
management program subject to public comment. The public comment period 
opened November 18, 2009 and ended on December 18, 2009. The Agency did 
not receive any comments on the proposed rule.

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 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); and June 26, 2006 effective 
June 26, 2006 (71 FR 36216).

F. What Changes Are We Authorizing With This Action?

    EPA is authorizing revisions to Oregon's authorized hazardous waste 
management program described in Oregon's official program revision 
application, submitted to EPA on October 15, 2009 and deemed complete 
by EPA on October 23, 2009. EPA has determined that Oregon's hazardous 
waste management program revisions, as described in the State's 
authorization revision application dated October 15, 2009 satisfy the 
requirements necessary to qualify for final authorization. The 
following table identifies those equivalent and more stringent State 
regulatory analogues to the Federal regulations which will be 
authorized with this action. The referenced analogous State authorities 
were legally adopted and effective as of June 25, 2009.

[[Page 920]]



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   Description of Federal                                                   Analogous State authority (Oregon
     requirements  CL\1\             Federal Register reference           administrative rules (OAR 340-* * *)
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Land Disposal Restrictions:   67 FR 62618, 11/21/2002.................  -100-0002.
 Treatment Variance for
 Radioactively Contaminated
 Batteries, CL 201.
NESHAP: Standards for         67 FR 77687, 12/19/2002.................  -100-0002.
 Hazardous Air Pollutants
 for Hazardous Waste
 Combustors-Corrections, CL
 202.
Hazardous Waste Management    68 FR 44659, 7/30/2003..................  -100-0002.
 System; Identification and
 Listing of hazardous Waste;
 Used Oil Management
 Standards, CL 203.
NESHAP: Surface Coating of    69 FR 22601, 4/26/2004..................  -100-0002.
 Automobiles and Light-Duty
 Trucks, CL 205.
Non-wastewaters from Dyes     70 FR 9138, 2/24/2005...................  -100-0002.
 and Pigments, CL 206.
Non-wastewaters from Dyes     70 FR 35032, 6/13/2005..................  -100-0002.
 and Pigments Correction, CL
 206.1.
Uniform Hazardous Waste       70 FR 10776, 3/4/2005...................  -100-0002.
 Manifest, CL 207 \2\.
Uniform Hazardous Waste       70 FR 35034, 6/16/2005..................  -100-0002.
 Manifest Correction, CL
 207.1.\3\.
Methods Innovation; SW-846,   70 FR 34538, 6/14/2005..................  -100-0002.
 CL 208.
Methods Innovation; SW-846    70 FR 44150, 8/1/2005...................  -100-0002.
 Correction, CL 208.1.
Mercury Containing            70 FR 45508, 8/5/2005...................  -100-0002.
 Equipment, CL 209.
Headworks Exemption, CL 211.  70 FR 57769, 10/4/2005..................  -100-0002.
NESHAP: Phase I Final         70 FR 59402, 10/12/2005.................  -100-0002.
 Replacement Standards, CL
 212.
Burden Reduction Rule, CL     71 FR 16862, 4/4/2006...................  -100-0002;
 213 \3\.                                                               -104-0021(1), (2) and (3); -105-0140(1),
                                                                         (2), (3), (4) and (5).
CFR Corrections Rule 1, CL    71 FR 40254, 7/14/2006..................  -100-0002.
 214.
CRT Exclusion, CL 215.......  71 FR 42928, 7/28/2006..................  -100-0002.
----------------------------------------------------------------------------------------------------------------
\1\ CL (Checklist) is a document that addresses the specific changes made to the Federal regulations by one or
  more related final rules published in the Federal Register. EPA develops these checklists as tools to assist
  States in developing their authorization application and in documenting specific State regulations analogous
  to the Federal regulations. For more information see EPA's RCRA State Authorization Web page at https://www.epa.gov/epawaste/osw/laws-regs/state/index.htm.
\2\ Concurrent with the incorporation by reference of this rule package on June 18, 2009, the Environmental
  Quality Commission repealed a State-only hazardous waste manifest rule (OAR-34-102-0060) that had previously
  been authorized by EPA. The State took this action to avoid any potential conflict with the Federal Uniform
  Hazardous Waste Manifest Rules (CL 207 and 207.1) which are incorporated by reference into Oregon's hazardous
  waste rules and effective state law as of June 25, 2009.
\3\ State rule contains some more stringent provisions. For identification of the more stringent State
  provisions refer to the authorization revision application and the discussion in Section G of this rule.

G. Where Are the Revised State Rules Different From the Federal Rules?

    This section discusses differences between Oregon's authorized 
revisions and the Federal regulations. EPA has made a final 
determination that the State does have more stringent requirements 
related to the Federal Burden Reduction Rule (70 FR 16862, April 4, 
2006).
    In 1999, EPA initiated a new Federal program, National 
Environmental Performance Track. This was a voluntary program designed 
to recognize facilities that had a sustained record of compliance and 
implemented high quality environmental management systems. EPA provided 
exclusive regulatory and administrative benefits to the Performance 
Track member facilities. The State of Oregon did not participate in the 
Federal National Environmental Performance Track Program. In May 2009, 
EPA terminated the Federal National Performance Track Program (74 FR 
22742, May 14, 2009); therefore there are no current Federal 
Performance Track member facilities. However, EPA did not remove the 
Federal rules applicable to the Performance Track member facilities 
from its regulations, and if EPA's Performance Track Program were 
reinstated these Federal rules would continue to be applicable to 
future member facilities.
    The State incorporated by reference the Federal Burden Reduction 
Rule (70 FR 16862, April 4, 2006), which included special allowances to 
lower priorities on routine inspections for Performance Track member 
facilities. The State also adopted rules which deleted those portions 
of the rule that referenced Federal Performance Track member 
facilities. The effect of deleting those references is that the State's 
rules do not allow any special or administrative benefits for 
Performance Track member facilities. Therefore, the State's rules found 
at OAR 340-104-0021(1), (2) and (3); OAR 340-105-0140(1), (2), (3), (4) 
and (5) are more stringent than those corresponding federal 
counterparts found at 40 CFR 264.15(b)(4) and (5); 40 CFR 264.174; 40 
CFR 264.195(e)(1); 40 CFR 265.15(b)(4) and (5); 40 CFR 265.174; 40 CFR 
265.195(d); and 40 CFR 265.201(e).

H. Who Handles Permits After the Authorization Takes Effect?

    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.
    Oregon will 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 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 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

[[Page 921]]

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.

I. What Is Codification and Is EPA Codifying Oregon's Hazardous Waste 
Management Program as Authorized in This Rule?

    Codification is the process of placing the State's statutes and 
regulations that comprise the State's authorized hazardous waste 
management 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 Does This Action Affect Indian Country (18 U.S.C. 1151) in 
Oregon?

    EPA's decision to authorize the Oregon hazardous waste management 
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 EPA will continue to implement and administer the RCRA 
program on these lands.

K. Statutory and Executive Order Reviews

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

1. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'', 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Executive Order defines ``significant regulatory 
action'' as one that is likely to result in a rule that may: (1) Have 
an annual effect on the economy of $100 million or more, or adversely 
affect in a material way, the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities; (2) 
create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; (3) materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs, or the 
rights and obligations of recipients thereof; or (4) raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order. EPA has 
determined that this final rule is not a ``significant regulatory 
action'' under the terms of Executive Order 12866 and is therefore not 
subject to OMB review.

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., 
because this final rule does not establish or modify any information or 
recordkeeping requirements for the regulated community and only seeks 
to authorize the pre-existing requirements under State law and imposes 
no additional requirements beyond those imposed by State law.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing, and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in Title 40 of the CFR are listed in 40 CFR Part 9.

3. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) 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 today's final rule on small 
entities, small entity is defined as: (1) A small business defined by 
the Small Business Administration's size regulations at 13 CFR 121.201; 
(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. As part of the State's rule development process, 
the State of Oregon prepared a ``Department of Environmental Quality 
(DEQ) Chapter 340, Proposed Rulemaking Statement of Need and Fiscal and 
Economic Impact'' which included an analysis on impacts to small 
businesses. The state concluded that there are no economic or fiscal 
impacts resulting from DEQ's proposed rulemaking. See the Oregon 
Environmental Quality Commission Agenda, dated June 19, 2009, Action 
Item N--Hazardous Waste Omnibus Rulemaking, Attachment E, for the DEQ 
``Impact to Small Business Analysis'' https://www.deq.state.or.us/about/eqc/agendas/2009/2009juneEQCagenda.htm. I certify that this final rule 
will not have a significant economic impact on a substantial number of 
small entities because the final rule will only have the effect of 
authorizing pre-existing requirements under State law and imposes no 
additional requirements beyond those imposed by State law.

4. Unfunded Mandates Reform

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. L. 
104-4) establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures and final rules with ``Federal mandates'' 
that may result in expenditures to State, local, and tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any one year. Before promulgating an EPA rule for 
which a written statement is needed section 205

[[Page 922]]

of the UMRA generally requires EPA to identify and consider a 
reasonable number of regulatory alternatives and adopt the least 
costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator publishes with the rule an explanation why the 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements. Today's action contains no Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local, or 
tribal governments or the private sector. It imposes no new enforceable 
duty on any State, local or tribal governments or the private sector. 
Similarly, EPA has also determined that this action contains no 
regulatory requirements that might significantly or uniquely affect 
small government entities. Therefore, today's action is not subject to 
the requirements of sections 202 and 203 of the UMRA.

5. Executive Order 13132: Federalism

    This final rule 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 various levels of government, as 
specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This 
final rule authorizes pre-existing State rules. Therefore, Executive 
Order 13132 does not apply to this final rule.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (59 FR 22951, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175 because EPA 
retains its authority over Indian Country. Therefore, Executive Order 
13175 does not apply to this final rule.

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 Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it approves a 
state program.

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

    This final 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'' as defined under Executive Order 
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 OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This final 
rulemaking does not involve technical standards. Therefore, EPA will 
not be considering the use of any voluntary consensus standards.

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

    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, 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 final 
rule will not have disproportionately high and adverse human health or 
environmental effects on minority or low-income populations. This final 
rule does not affect the level of protection provided to human health 
or the environment because this rule authorizes pre-existing State 
rules which are equivalent to, and no less stringent than existing 
federal requirements.

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 23, 2009.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.
[FR Doc. 2010-13 Filed 1-6-10; 8:45 am]
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