Oklahoma: Final Authorization of State Hazardous Waste Management Program Revision, 18927-18930 [2011-8169]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 76, Number 66 (Wednesday, April 6, 2011)]
[Rules and Regulations]
[Pages 18927-18930]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-8169]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R06-RCRA-2010-0307; FRL-9291-1]


Oklahoma: Final Authorization of State Hazardous Waste Management 
Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: Oklahoma has applied to the EPA for Final authorization of the 
changes to its hazardous waste program under the Resource Conservation 
and Recovery Act (RCRA). EPA has determined that these changes satisfy 
all requirements needed to qualify for Final authorization, and is 
authorizing the State's changes through this immediate final action. 
The EPA is publishing this rule to authorize the changes without a 
prior proposal because we believe this action is not controversial and 
do not expect comments that oppose it. Unless we receive written 
comments which oppose this authorization during the comment period, the 
decision to authorize Oklahoma's changes to its hazardous waste program 
will take effect. If we receive comments that oppose this action, we 
will publish a document in the Federal Register withdrawing this rule 
before it takes effect, and a separate document in the proposed rules 
section of this Federal Register will serve as a proposal to authorize 
the changes.

DATES: This final authorization will become effective on June 6, 2011 
unless the EPA receives adverse written comment by May 6, 2011. If the 
EPA receives such comment, it will publish a timely withdrawal of this 
immediate final rule in the Federal Register and inform the public that 
this authorization will not take effect.

ADDRESSES: Submit your comments by one of the following methods:
    1. Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. E-mail: patterson.alima@epa.gov.
    3. Mail: Alima Patterson, Region 6, Regional Authorization 
Coordinator, State/Tribal Oversight Section (6PD-O), Multimedia 
Planning and Permitting Division, EPA Region 6, 1445 Ross Avenue, 
Dallas, Texas 75202-2733.
    4. Hand Delivery or Courier: Deliver your comments to Alima 
Patterson, Region 6, Regional Authorization Coordinator, State/Tribal 
Oversight Section (6PD-O), Multimedia Planning and Permitting Division, 
EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733.
    Instructions: Do not submit information that you consider to be CBI 
or otherwise protected through regulations.gov, or e-mail. The Federal 
regulations.gov Web site 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 e-mail comment 
directly to the EPA without going through 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, 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.
    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, 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 Coordinator, State/Tribal Oversight Section (6PD-O), 
Multimedia Planning and Permitting Division, (214) 665-8533, EPA Region 
6, 1445 Ross Avenue, Dallas, Texas 75202-2733, and E-mail address 
patterson.alima@epa.gov.

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

[[Page 18928]]

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 have we made in this rule?

    We conclude that Oklahoma's application to revise its authorized 
program meets all of the statutory and regulatory requirements 
established by RCRA. Therefore, we grant Oklahoma Final authorization 
to operate its hazardous waste program with the changes described in 
the authorization application. Oklahoma has responsibility for 
permitting treatment, storage, and disposal facilities within its 
borders. Also section 10211(a) of the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act of 2005 (``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 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 today's authorization decision?

    The effect of this decision is that a facility in Oklahoma subject 
to RCRA will now have to comply with the authorized State requirements 
instead of the equivalent Federal requirements in order to comply with 
RCRA. Oklahoma has 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:
     Do 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.
    This action does not impose additional requirements on the 
regulated community because the regulations for which Oklahoma is being 
authorized by today's action is already effective under State law, and 
are not changed by today's action.

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

    The EPA did not publish a proposal before today's rule because we 
view this as a routine program change 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 authorize the State program changes.

E. What happens if the EPA receives comments that oppose this action?

    If the EPA receives comments that oppose this authorization, we 
will withdraw this rule by publishing a document in the Federal 
Register before the rule becomes effective. The EPA will base any 
further decision on the authorization of the State program changes on 
the proposal mentioned in the previous paragraph. We will then address 
all public comments in a later final rule. You may not have another 
opportunity to comment. If you want to comment on this authorization, 
you must do so at this time. If we receive comments that oppose only 
the authorization of a particular change to the State hazardous waste 
program, we will withdraw only that part of this rule, but the 
authorization of the program changes that the comments do not oppose 
will become effective on the date specified in this document. The 
Federal Register withdrawal document will specify which part of the 
authorization will become effective, and which part is being withdrawn.

F. For what has Oklahoma previously been authorized?

    Oklahoma 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: Oklahoma 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 and February 4, 2009 (74 FR 5994-6001). The 
authorized Oklahoma RCRA program was incorporated by reference into the 
CFR published on December 9, 1998 (63 FR 67800-67834) effective 
February 8, 1999, August 26, 1999 (64 FR 46567-46571) effective October 
25, 1999, August 27, 2003 (68 FR 51488-51492) effective October 27, 
2003 and August 27, 2010 (75 FR 36546) June 28, 2010. On March 26, 
2010, and January 18, 2011, Oklahoma submitted a final complete 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 the 
provisions of RCRA Cluster XVIII, 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. Sections establishes an EQB to be the 
rulemaking body for the DEQ, specifically charged with the 
responsibility of promulgating rules to implement the duties and 
responsibilities of the DEQ. The EQB consists of 13 members appointed 
by the Governor with the advice and consent of the State senate. The 
Code, 27A O.S. Section 2-2-201, also establishes a Hazardous Waste 
Management Advisory Council (``Council'') with the authority to 
recommend rules to the Board on behalf of the ODEQ.
    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

[[Page 18929]]

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 
Cluster XVIII and Checklist 220 in RCRA Cluster XIX will not affect the 
jurisdictional authorities of the ODEQ or OCC.
    The Board adopted RCRA Cluster XVIII amendments on November 18, 
2008 and became effective on July 1, 2009 and also adopted RCRA Cluster 
XIX which is part of Checklist 220 on March 24, 2010 with an effective 
date July 11, 2010. The rules were also codified at OAC 252:205 et seq, 
Subchapter.
    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, 2009 and July 11, 
2010. The State of Oklahoma incorporate by reference the provisions of 
40 Code of Federal Regulations (CFR) parts 124 of 40 CFR 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 260-268 [with the exception of 260.21, 261.(b)(18), 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 OHWMA provides the DEQ with the authority to administer the 
State Program, including the statutory and regulatory provisions 
necessary to administer the provisions of RCRA Cluster XVIII and 
Checklist 220 in RCRA Cluster XIX, designates the DEQ as the State 
agency to cooperate and share information with the EPA for the 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.

G. What changes are we approving with today's action?

    On March 26, 2010, and January 11, 2011, the State of Oklahoma 
submitted final complete program applications, seeking authorization of 
their changes in accordance with 40 CFR 271.21. We now make an 
immediate final decision, subject to receipt of written comments that 
oppose this action that the State of Oklahoma's hazardous waste program 
revision satisfies all of the requirements necessary to qualify for 
final authorization. The State of Oklahoma revisions consist of 
regulations which specifically govern Federal Hazardous Waste revisions 
promulgated from July 1, 2007 through December 31, 2008 (RCRA Cluster 
XVIII and Checklist 220 in RCRA Cluster XIX). Oklahoma requirements are 
included in a chart with this document.

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   Description of Federal       Federal Register
    requirement (include       date and page (and/     Analogous state
   checklist , if      or RCRA statutory         authority
          relevant)                 authority
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1. Exclusion of Oil-Bearing   73 FR 57-72 January   Oklahoma Statutes
 Secondary Materials           2, 2008..             Title 27A Section 2-
 Processed in a Gasification                         7-101 et seq.; as
 System to Produce                                   amended through
 Synthesis. (Checklist 216).                         July 1, 2009.
                                                     Oklahoma
                                                     Administrative Code
                                                     Rules 252:205-3-2,
                                                     effective July 1.
                                                     2009. Oklahoma
                                                     Hazardous Waste
                                                     Management Act, as
                                                     amended effective
                                                     July 1, 2009.
2. NESHAP: Final Standards    73 FR 18970-18984     Oklahoma Statutes
 for Hazardous Waste           April 8, 2008..       Title 27A Section 2-
 Combustors (Phase I Final                           7-101 et seq.; as
 Replacement Standards and                           amended through
 Phase II) Amendments.                               July 1, 2009.
 (Checklist 217).                                    Oklahoma
                                                     Administrative Code
                                                     Rules 252:205-3-2,
                                                     effective July 1.
                                                     2009. Oklahoma
                                                     Hazardous Waste
                                                     Management Act, as
                                                     amended effective
                                                     July 1, 2009.
3. F019 Exemption for         73 FR 31756-31769     Oklahoma Statutes
 Wastewater Treatment          June 4, 2008..        Title 27A Section 2-
 Sludges from Auto                                   7-101 et seq.; as
 Manufacturing Zinc                                  amended through
 Phosphating. (Checklist                             July 1, 2009.
 218).                                               Oklahoma
                                                     Administrative Code
                                                     Rules 252:2053-2,
                                                     effective July 1.
                                                     2009. Oklahoma
                                                     Hazardous Waste
                                                     Management Act, as
                                                     amended effective
                                                     July 1, 2009.
4. Academic Laboratories      73 FR 72912-72960     Oklahoma Statutes
 Generator Standards.          December 1, 2008..    Title 27A Section 2-
 (Checklist 220).                                    7-101 et seq.; as
                                                     amended through
                                                     July 1, 2009.
                                                     Oklahoma
                                                     Administrative Code
                                                     Rules 252:205-3-2,
                                                     effective July 1,
                                                     2009. Oklahoma
                                                     Hazardous Waste
                                                     Management Act as
                                                     amended effective
                                                     July 11, 2010.
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H. Where are the revised state rules different from the Federal rules?

    The only clarification in this FR notice is at OAC 252:205-3-
2(c)(3) states ``in 261.31(a) the listing for F019, at the end: ``Zinc 
phosphate sludges meeting exemption conditions remain subject to 
regulations as hazardous waste characteristic'' This statement is 
consistent with EPA's interpretation of its rule and was added by way 
of clarification.

I. Who handles permits after the authorization takes effect?

    Oklahoma will issue permits for all the provisions for which it is 
authorized and will administer the permits it issues. The EPA will 
continue to

[[Page 18930]]

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.

J. How does today's action affect Indian country (8 U.S.C. 1151) in 
Oklahoma?

    The State of Oklahoma Hazardous Program is not being authorized to 
operate in Indian Country.

K. What is codification and is the EPA codifying Oklahoma's hazardous 
waste 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 
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 authorization of Oklahoma's program changes until a 
later date. In this authorization application the EPA is not codifying 
the rules documented in this Federal Register notice.

L. 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. The 
reference to Executive Order 13563 (76 FR 3821, January 21, 2011) is 
also exempt from review under Executive orders 12866 (56 FR 51735, 
October 4, 1993). This action authorizes State requirements for the 
purpose of RCRA 3006 and imposes no additional requirements beyond 
those imposed by State law. Accordingly, I certify that this action 
will not have a significant economic impact on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.). Because this action authorizes 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 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 authorizes State requirements as part of the State 
RCRA hazardous waste program without altering the relationship or the 
distribution of power and responsibilities established by RCRA. This 
action also is not subject to Executive Order 13045 (62 FR 19885, April 
23, 1997), because it is not 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.
    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 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 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 added 
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. The 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 June 6, 2011.

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: March 19, 2011.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2011-8169 Filed 4-5-11; 8:45 am]
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