2017-14774. Oklahoma: Final Authorization of State Hazardous Waste Management Program Revision

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

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). EPA has determined that these changes satisfy all requirements needed to qualify for final authorization, and is authorizing the State's changes through this direct final action. In the “Proposed Rules” section of this Federal Register, EPA is also publishing a separate document that serves as the proposal to authorize these changes. EPA believes this action is not controversial and does not expect comments that oppose it. Unless EPA receives 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 EPA receives comments that oppose this action, EPA will publish a document in the Federal Register withdrawing this direct final rule before it takes effect, and the separate document in the “Proposed Rules” section of this Federal Register will serve as the proposal to authorize the changes.

DATES:

This final authorization is effective on September 11, 2017 unless the EPA receives adverse written comment by August 14, 2017. If the EPA receives such comment, EPA will publish a timely withdrawal of this direct 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:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments.
• Email: [e-mail].
• Fax: [phone] (prior to faxing, please notify Alima Patterson at [phone]).
• Mail: Alima Patterson, Regional Authorization 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 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 August 14, 2017. Direct your comments to Docket ID Number EPA-R06-RCRA-2016-0344. 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 (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 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 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 4:00 p.m. Monday through Friday at the following locations: Oklahoma Department of Environmental Quality, 707 North Robinson, Oklahoma City, Oklahoma 73101-1677, [phone] and EPA, Region 6, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733, phone number [phone]. 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, Permit Section (6MM-RP), Multimedia Division, [phone], EPA Region 6, 1445 Ross Avenue, Suite 1200, Dallas Texas 75202-2733, and Email address [e-mail].

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.

New Federal requirements and prohibitions imposed by Federal regulations that the EPA promulgates pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) take effect in authorized States at the same time that they take effect in unauthorized States. Thus, the EPA will implement those requirements and prohibitions in the State of Oklahoma, including the issuance of new permits implementing those requirements, until the State is granted authorization to do so.

B. What decisions has the EPA made in this rule?

On November 1, 2015, the ODEQ submitted a final complete program revision application seeking authorization of changes to its hazardous waste program that correspond to Federal rules promulgated between July 1, 2013 and June 30, 2014 (RCRA Cluster XXIII). The EPA concludes that Oklahoma's application to revise its authorized program meets all of of the statutory and regulatory requirements established by RCRA. Therefore, we grant ODEQ final authorization to operate its hazardous waste program with the changes described in the authorization application. ODEQ 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 (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 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. ODEQ 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 ODEQ is being authorized by this direct action is already effective under State law, and are not changed by this action.

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

The EPA did not publish a proposal before this 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 this 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?

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. On November 1, 2015, ODEQ 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 XXIII, 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. One minor change occurred in the State Program, wherein the ODEQ revoked a portion of OAC 252:205 Subchapter 19, in order to make the existing state rules consistent with changes to the Oklahoma Statutes. 27A O.S. § 2-7-118(B) and (C) were revoked during the first Regular Session of the 54th Oklahoma Legislature. This statute prohibited, as a form of recycling, the burning of hazardous waste with a low heating value, or the blending of low-Btu fuel with other materials or wastes to create a hazardous waste fuel. The revocation of OAC 252:205-19-5 was proposed to reflect that deletion and to conform the state rules to the Oklahoma Statutes. These changes were neither more nor less stringent than the existing federal rules and, therefore, had no substantive impact on the hazardous waste program implemented by the Department of Environmental Quality.

The Oklahoma Legislature in April of 2015 amended the OHWMA by passing 27A O.S. § 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 new 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 through July 1, 2014. The regulatory amendment implementing this adoption by reference has an effective date of September 15, 2015. The provisions for which the State of Oklahoma is seeking authorization are documented in the Regulatory Documentation For Federal Provisions For Which The State Of Oklahoma Is Seeking Authorization, Federal Final Rules Published Between July 1, 2013 Through June 30, 2014, RCRA CLUSTER XXIII, prepared on May 14, 2015.

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, Subchapter 3. The ODEQ does not adopt Federal regulations prospectively.

The State Hazardous waste management program (“State Program”) now has in place, the statutory authority and regulations for all required components of federal regulations adopted in Checklists 229, 230, 231 and 232 in RCRA Cluster XXIII. 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 Cluster XXIII will not affect the jurisdictional authorities of the ODEQ or OCC.

The ODEQ adopted RCRA Cluster XXIII applicable federal hazardous waste regulations as amended July 1, 2013 through June 30, 2014, and became effective on September 15, 2015. 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, 2014. 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.

G. What changes are we authorizing with this action?

On November 1, 2015, the ODEQ 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 ODEQ's hazardous waste program revision satisfies all of the requirements necessary to qualify for final authorization. The ODEQ revisions consist of regulations which specifically govern Federal hazardous waste revisions promulgated between July 1, 2013 through June 30, 2014 (RCRA Cluster XXIII). The ODEQ requirements are included in a chart within this document.

Description of federal requirement (include checklist #, if relevant)	Federal Register date and page (and/or RCRA statutory authority	Analogous state authority
1. Conditional Exclusions for Solvent Contaminated Wipes (Checklist 229)	78 FR 46448-46485 July 31, 2013; effective January 31, 2014	Oklahoma Statutes Title 27A Section 2-7-101 et seq., Oklahoma Hazardous Waste Management Act, as amended November 13, 2014, Oklahoma Administrative Code, Title 252, Chapter 205, effective September 15, 2015.
2. Conditional Exclusion for Carbon Dioxide (CO2) Streams in Geologic Sequestration Activities (Checklist 230)	79 FR 350-364 January 3, 2014; effective March 4, 2014	Oklahoma Statutes Title 27A Section 2-7-101 et seq., Oklahoma Hazardous Waste Management Act, as amended November 13, 2014, Oklahoma Administrative Code, Title 252, Chapter 205, effective September 15, 2015.
3. Hazardous Waste Electronic Manifest System; Final Rule (Checklist 231)	79 FR 7518-7563 February 7, 2014; effective August 6, 2014	Oklahoma Statutes Title 27A Section 2-7-101 et seq., Oklahoma Hazardous Waste Management Act, as amended November 13, 2014, Oklahoma Administrative Code, Title 252, Chapter 205, effective September 15, 2015.
4. Revisions to the Export Provisions of the Cathode Ray Tube (CRT) Rule (Checklist 232	79 FR 36220-36231 June 26, 2014; effective December 26, 2014	Oklahoma Statutes Title 27A Section 2-7-101 et seq., Oklahoma Hazardous Waste Management Act, as amended November 13, 2014, Oklahoma Administrative Code, Title 252, Chapter 205, effective September 15, 2015.

H. Where 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.

I. Who handles permits after the authorization takes effect?

ODEQ will 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.

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

Section 8 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 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 ODEQ's program changes until a later date. In this authorization application the EPA is not codifying 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 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 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 September 11, 2017.

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: April 24, 2017.

Samuel Coleman,

Acting Regional Administrator, Region 6.