•

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ATl'ORNEY GENERAL I S STATEMENT

I hereby certify, pursuant to my authority as the Attorney General for

the State of Oregon and in accordance with Section 3006(c) of the Solid

waste Disposal Act as amended by the Resource Conservation and Recovery

Act, as amended (42 USC 690l,et Seq.), and 40 CFR 123, that in my opinion

the laws of the State of Oregon provide adequate authority to carry- out

the program set forth in the Program Description submitted by

the Oregon Department of Environmental Quality to the Un~ted States

Environmental Protection Agency. I further certify that the enabling

legislation for the program was in existence within 90 days after the

May 19, 1980, promulgation date of 40 CFR 123. The specific authorities

provided, which are contained in statutes or rules lawfully adopted at

the time of this Statement and which are in full force and effect at the

time the program is approved, include those in Appendix A, attached. I

further certify that in my opinion the Authorization Plan submitted

by the Department of Environmental Quality to the United States "

Environmental Protection Agency pursuant to"40 CFR l23.l21(a), if carried

out, would provide the State with legal authority to meet the requirements

for final authorization contained in Phase I •

FSB:a

ZA96 (1)

Attachment

4.1
•

II.

•

APPENDIX A: REX3ULATORY AUTHORITY' 0

IDENTIFICATION AND LISTING

State statutes and rules provide control over a universe of hazardous

waste generated, transported, treated, stored and disposed of in the

State at the time of program approval which is nearly identical to

that which would be controlled by the Federal program under 40 CFR

26l.

Citation of Laws: ORS 453.635(1) (b) (Enacted 1977)

ORS 459.410(6) (1977)

ORS 459.430 (3) (1973)

ORS 459.440 (3) (1971)

ORS 469.310 (pre 1977)

ORS 469.375 (pre 1977)

ORS 469.525 (1975)

ORS 469.530 (pre 1977)

OAR 340-63-100 to 340-63-135 (1979)

Remarks: The Oregon definition of hazardous waste is very broad in

that it covers all discarded, uSeless or unwanted pesticides and all

process residues from the public or private sector if such residues

are classified hazardous by the Environmental Quality Commission.

Such residues may include sewage sludge, water supply treatment

sludge, air pollution control facility sludge and may have a value

or be intended for re-use"or recycle.

primary statutory authority for certain parts of the RCRA program

rest with State agencies other than the DEQ; e.g., the Department

of Energy controls radioactive waste and the Public Utility

Commissioner controls transportation. However, the DEQ would expect

to act as the "lead agency" with regard to all hazardous waste

management under RCRA.

STANDARDS FOR GENERATORS OF HAZARDOUS WASTE

A. State statutes and rules provide coverage of all the generators

of hazardous waste which is regulated under the State program.

Citation: ORS 459.410(5) 0(1977)

OAR 340-63-205 (1979)

Remarks: There are no classes of persons excluded. in the

generator definition. However, the rules need amending to

regulate selected wastes down to a level of 2.2 lb/mo. and to

remove the 2000 lb/load exemption. .

Holders of waste discharge permits are not exempted from the

hazardous waste program but are regulated under the conditions

of their permit rather than the Generator rules. Such permit

requirements are at least as stringent as the rules.

4.2
• B~ State statutes and rules require all generators of waste to

determine whether their waste is hazardous•

Citation: ORS 459.505 (1977 and 1979)

ORS 459.510 (1971)

OAR 340-63-105 (2) (1979)

Remarks: Cited statutes infer and rule states that it is a

generator's responsibility to determine if his waste must be

mapag~ as. h~.~ardo~!'3.... .

C. State statutes and rules require aIr generators covered by the

State program to comply with reporting and recordkeeping

requirements substantially equivalent to those found in 40 CPR

262.40 and 262.41.

Citation: ORS 459.445(1) (b) (1977)

ORS 459.445 (1) (e) (1977)

OAR 340-63-235 (1979)

. OAR ~40-~3-24P (1979)

Remarks: Slight modification needed in recordkeeping and

reporting rules.

•

D.

E.

P.

Fbr hazardous wastes that are accumulated by such generators

for short periods of time prior to shipment, State statutes and

rules require that such generators accumulate such wastes in

a manner that does not present a hazard to human health or the

environment.

Citation:ORS 459.445 (2) (1977)

OAR 340-63-215 (8) (1979)

OAR 340-63-215 (9) (1979),

OAR 340-63-215(10) (1979)

Respecting international shipments, State laws and rules provide

requirements which are substant.La.Ll.y equivalent to those in 4.0

CPR 262.50, except that advance notification of international

shipment, as required by 40 CFR 262.50(b) (1), shall be filed

with the Administrator.

Citation: ORS 459.445 (1) (e) (1977)

Remarks: Rules needed.

State statutes and rules require that such generators of

hazardous waste who transport (or offer for transport) such

hazardous waste off-site use a manifest system that ensures

that inter- and intrastate shipments of hazardous waste are

designated for delivery and, in the case of intrastate shipments,

are delivered only to facilities that are authorized to operate

under an approved State program or the Federal program.

Citation: ORS 459.445 (1) (d) (1977)

OAR 340-63-215(6) (1979)

OAR 340-63-215 (7) (1979)

OAR 340-63-230(1) (1979)

4.3
•

G. The State manifest system requires that:

1. The manifest itself identify the generator, transporter,

designated facility to which the hazardous waste will be

transported, and the hazardous waste being transported.

Citation: ORS 459.445 (1) (d) (1977)

OAR 340-63-230 (3) (1979)

2. The manifest accompany all wastes offered for transport

except in the case of shipments by rail or water specified

in 40 CPR 262.23(c) and 263.20(e).

Citation: ORS 459.445 (1) (d) (1977)

OAR 340-63-230 (4) (1979)

3. Shipments of hazardous waste that are not delivered to a

designated facility are either identified and reported by

the generator to the State in which the shipment originated

or are independently'identified by the State in which the

shipment originated.

Citation: ORS 459.445 (1) (d) (1977)

OAR 340-63-235 (2) (c) (v) (1979)

4. There is notification of undelivered interstate shipments

to the State in which the facility designated on the

manifest is located and to the State in which the shipment

may have been delivered (or EPA for unauthorized States).

Citation: ORS 459.445 (1) (d) (1977)

Remarks: Rule needed.

~/" >: ''I"•• P

III. STANDARDS FOR TRANSPORTERS OF HAZARDOUS WASTE

•

A• State statutes and rules provide coverage of all the transporters

of hazardous waste which are regulated under the State program.

Citation: ORS 756.040 (2) (pre 1973)

ORS 767.025 (1) (e) (pre 1977)

ORS 767.025(2) (a) (pre 1977)

Remarks: Expanded statutory authority required as there are

exemptions for public motor vehicles and vehicles under 8,000

pounds. Also, certain wastes need to be controlled down to

2.2 Ibs; rules needed.

Primary statutory authority over transportation is vested in

the Public Utility Commissioner.

•

B. State statutes and rules require -all transporters covered by

the State program to comply with recordkeeping requirements

substantially equivalent to those found in 40 CFR263.22.

Citation: ORS 756.040 (2) (pre 1973)

OAR 860-36-064(5) (1979)

Remarks: Need rules for rail and water shipment.

C. State statutes and rules require such transporters of hazardous

waste to use a manifest system that ensures that interstate and

intrastate shipments of hazardous waste are delivered only to

4.4
• .-

facilities that are authorized urider·an approved ·Stat:e program

or Federal program•

Citation: ORS 756.040(2) (pre 1973)

OAR 860-36-064 (1) (1979)

.. '.' OAR· 860-36-064 (.7). (1979)

D. State statutes and rules require that such transporters carry

_.. the"J[lar1i~;~st. with .all. shipments except in the case. of shipments

by raii··oI: waterspeclfied in 40·CFR 263.20(e).

Citation: ORS 756.040 (2) . (pre 1973)

OAR 860-36-064 (3) (1979)

E. FOr hazardous wastes that are discharged in transit, State

statutes and regulations require such transporters to notify

appropriate State, local, and Federal agencies of the discharges

and to clean up such wastes or to take action so that such wastes

do: not present· a hazard t~· human health. or the environment·.

Such requirements are substantially equivalent to those found

at 40 CFR 263.30 and 263.31.

Citation: ORS 459.685 (1973)

OAR 860-36-066 (1979)

." .";

IV. STANDARDS FOR STORAGE, TREATMENT AND DISPOSAL FACILITIES

State statutes and rules provide standards applicable to storage, treatment

and disposal facilities which .are substantially equivalent to 40 CFR 265.

·State law prohibits the operation of facilities-not in compliance with

such standards. These standards include:

A. Preparedness for and prevention of releases of hazardous waste

controlled by the State and contingency plans and emergency

procedures to be followed in the event of a. release of such

hazardous waste.

Citation: ORS 459.440(1) (1971 and 1977)

OAR 340-62-025 (1) (d) (1972)

OAR 340-62-065 (1) (c) (1978 and April 1980)

OAR 340-63-215 (3) (1979)

OAR 340-63-420(1) (1979)

OAR 340-63-420 (3) (1979)

B.

C.

Closure and post-closure requirements.

Citation: ORS 459.440(1) (1971 and 1977)

Remarks: Rules may be needed.

Groundwater monitoring.

Citation: ORS 459.440(1) (197l and 1977)

OAR 340-62-025 (l) (j) (1972)

Remarks: Rules may need to be amplified

4.5
•

D. security to prevent unknowing and unauthorized access to the

facility.

Citation: ORS 459.440(1) (1971 and 1977)

OAR 340-62-025 (1) (f) (1972)

OAR 340-62-065(1) (e) (1978 and April 1980)

OAR 340-63-215 (9) (1979)

.:-.:'«,

\~- }:

E. Facility personnel training.

Citation: ORS 459.440 (1) (1971 and 1977)

OAR 340-62-025 (1) (c) (1972)

OAR 340-62-065(1) (b) (1978 and April 1980)

Remarks: Rules may be needed.

F. Inspection, monitoring, recordkeeping, and reporting.

Citation: ORS 459.440(1) (1971 and 1977)

OAR 340-63-430 (1979)

OAR 340-63-435 (1979)

Remarks: Rules may be needed.

G. Compliance with the manifest system including the requirement

that the facility owner or operator or the State in which the

facility is located must return a copy of the manifest to the

generator or to the State in which the generator is located

indicating delivery of the waste shipment.

Citation: ORS 459.440(1) (1971 and 1977)

OAR 340-63-425 (3) (1979)

•

H• Other facility standards to the extent that they are included

in 40 CPR 264, 265, and 266.

Citation: ORS 459.440 (1) (1971 and 1977)

Remarks: Rules needed

•

I. Further comments on Oregon law.

Citation: ORS 459.505(3) (1977)

ORS 459.510(3) (1977)

OAR 340-62-060(2) (1978)

OAR 340-62-100 (1978)

The Oregon program contains a procedure permitting the (1)

establishment of short-term collection sites; and, (2) disposal

of certain hazardous wastes in a solid waste disposal site;

·without the need for obtaining a hazardous waste. management

facility license. The conditions under which either may be done

are very narrowly prescribed in the cited rules. The DEQ advises

that, since 1977, this authority has been used only once for

RCRA hazardous waste; a single-time collection of agricultural

pesticides by a county agency.

v. INSPECTIONS

State law provides authority for officers engaged in compliance evaluation

activties to enter any conveyance, vehicle, or facility or premises

4.6
.' .- ,

•

~". . <:,' .:.

.....

-~ubject to ~egulation or in which reco~ds 'reievant to piOgram'op~ration

are kept in order to inspect, monito~, or otherwise investigate compliance

with the State program including compliance with permit terms and

conditions and other program requirements•. .., Citation:' ORS 4'59.660 (1971, '1977 and 1979)

ORS 459.670 (1971, 1977 and 1979)

ORS 756.075 (1973)

. :.....':'..: :.; .::i··.OAR'·.·340~:63-420(7):. (~97·9) ..:. .... . . , .

Remarks: Clear le9islative authority exists to enter upon

propterty except that the language is unclear in the case of

a generator. The DEQ advises that specific legislation will be sought

to clarify this point.

VI. ENFORCEMENT REMEDIES

State statutes.. p.rovide the.following: '., ..

A. Authority to restrain immediately by order or by suit in State

court any person from engaging in any unauthorized activity which

is endangering or causing damage to public health or the

environment.

Citation: ORS 459.680 (1971, 1977 and 1979)

O~~ 459.690 (1973)

ORS 756.160 (1973)

•

B. Authority to sue in courts of competent jurisdiction to enjoin

any threatened or continuing violation of any program

requirement.

Citation: ORS 459.680 (1971, 1977 and 1979)

ORS 459.690 (1973)

ORS 756.180 (1973)

C. Authority to assess or sue to recover in court civil penalties

in at least·the amount of $1,000 per day for any program

violation or seek criminal remedies including fines in at least

the amount of $1,000 per day for any program violation.

Citation: ORS 459.992(4) (1971)

ORS 756.990(2) (1973)

VII. PUBLIC PARTICIPATION IN THE STATE ENFORCEMENT PROCESS

State laws and rules provide for public participation in the State

enforcement process by providing either:

A. Authority which allows intervention as of right in any civil

or administrative action to obtain the remedies specified in

VI above by any citizen having an interest which is or may be

adversely affected; or

4.7
•

•'

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B. Assurances that the state agency or enforcement authority will:

(1) Investigate and provide written'response to all citizen

complaints dUly submitted.

(2) Not oppose intervention by any citizen where permissive

intervention may be authorized by statute,' or rule; and,

(3) Publish and provide at least 30 days for public comment

on any proposed settlement of a State enforcement action.

Remarks: The status of Oregon law with regard to intervention as

of right is unclear but the assurances delineated in 40 CPR

l23.l28(f) (2) (ii) are unwritten DEQ policy and could be formalized

if necessary.

VIII. AUTHORITY TO SHARE INFORMATION WITH EPA

State statute provides authority for most information obtained or used

in the administration of the State program to be available to EPA upon

request without restriction.

Citation: ORS 459.460 (1973)

Remarks: Existing statute does not fully comply with EPA's

requirement, but we are advised that the DEQ will request legislative

action to achieve compliance •

FSB:a

ZA96

4.8

/ ...,~.

~~., j;"
t·

•

SUPPLEMENTAL ATTORNEY GENERAL'S STATEMENT

I hereby certify that the amendments to the Memorandum of Agreement

which were submitted by the State of Oregon to the Environmental Protection

Agency (EPA) on November 1?, 1980 are in accordance with the laws of the State

of Oregon. The amendment to Section ILB.2.d. regarding confidential business - . .... .. .' .

information will enable the State of Oregon to make available to EPA· upon

Oregon

, 1980 .

request without restriction all information obtained or used in the

administration of this State program.

DATED this ~day of

••

••
•

DEPARTMENT OF JUSTICE

PORTlAt'lD DIVISiON

500 Pacific Building

520 S.W. Yamhill

Portland, Oregon 97204

Telephone: (503) 229-5725

December 9, 1980

Ms. Cheryl R. Koshuta

Attorney

Office of Regional Counsel

U.S. Environmental Protection Agency

Region X

1200 Sixth Avenue

Seattle, Washington 98101 .

So:::! Waste Division

Dept. of [nvironmental Quality

00 o~~~ .: 1:80[g rID ..

•

Re: Oregon Interim Authorization Application

Dear Ms. Koshuta:

In response to your November 25, 1980, letter to me, I

a~ forwarding herewith to you Supplemental Attorney General's

Statement, dated December 5, 1980, and signed by Mr. James M.

Brown, Attorney G~neral of Oregon.

Please let me know if you have further questions about

this matter.

Sincerely,

Raymond P. Underwood

Chief Counsel

bc

encLosure

.cc: /Mr. Richard P. Reiter

Supervisor

Hazardous Waste Operations

Department of Environmental Quality

522 S.W. 5th

Portland, Oregon 97204

r
•

SUPPLEMENTAL ATTORNEY GENERAL' S STATEMENT

I hereby certify, pursuant to my authority as the Attorney General for

the State of Oregon and in accordance with Section 3006(c) of the Solid

Waste Disposal Act as amended by the Resource Conservation and Recovery

Act, as amended (42 USC 6901, et Seq.), and 40 CPR 123, that in my

opinion the laws of the State of Oregon provide adequate authority to carry

out the program set forth in the Program Description submitted by the

Oregon Department of Environmental Quality to the United States

Environmental Protection Agency, including the supplemental submission

(indexed as H. under Program Description). I further certify that the

enabling legislation for the program was in existence within 90 days after

the May 19, 1980, promulgation date of 40 CPR 123. "Thespeciflc ""

authorities provided, which are contained in statutes or rules lawfully

adopted at the time of this Statement and which are in full force and

effect at the time the program is approved, include ~hose in Appendix A,

attached. I further certify "that in my opinion the Authorization plan

submitted by the- Department of Environmental Quality to the United States

Environmental Protection Agency pursuant to 40 CFR l23.l27(a), if carried

out, would provide the State with legal authority to meet the requirements

for final authorization contained in Phase I.

J - S~gnature

Dave Frohnmayer

Attorney General

State of Oregon

(\ 'I~

UO/Yl,v..C0U1 ::JU ,

Dat~ CT;

RPR:ac

ZC408 (1)

Attachment

4.10
•

IV. STANDARDS FOR STORAGE, TREATMENT AND DISPOSAL FACILITIES

State statutes and rules provide standards applicable to storage, treatment

and disposal facilities which are substantially equivalent to 40 CFR 265.

State law prohibits the operation of facilities not in compliance with

such standards. These standards include:

A. preparedness for and prevention of releases of hazardous waste

controlled by the State and contingency plans and emergency

procedures to be ·followed in the event of a release of such

hazardous. waste.

B. Closure and post-closure requirements.

C. Groundwater monitoring.

D.· Security to prevent unknowing ·and unauthorized access to the

facility.

E. Facility personnel training.

F. Inspection, monitoring, recordkeeping, and reporting.

G. Compliance with the manifest system including the requirement

that the facility owner or operator or the State in which the

facility is located must return a copy of the manifest to the

generator or to the State in which the generator is located

indicating delivery of the waste shipment.

H. Other facility standards to the extent that they are included

in 40 CFR 264, 265, and 266.

I. Further comments on Oregon law.

Citation: ORS 468.700 (1), (2), (3), (6), (7), and (8) (1961, 1967,

1969 & 1973)

ORS 468.720 (la) and (lb) (1967, 1969, & 1973)

ORS 468.740 (1), (2), and (4) (1967, 1969 & 1973)

OAR 340 - Divisions 14, 41,42, 43, 44 and 45

(administrative history given under each section)

Proposed Groundwater Quality Protection Policy·

(Apr il. 18, 1980)

Remarks: Pits, ponds and lagoons; surface impoundments and land

treatment facilities receiving industrial wastes (whether or not

defined as hazardous wastes under ORS 459.410) have been, and are,

regulated under Oregon's water pollution control program. Through

the mechanism of a State Water Pollution Control Facility Permit or

National Pollutant Discharge Elimination System permit, requirements

substantially equivalent to the "Interim Status Standards" can be

applied if the above-described facilities are used to manage hazardous

waste.

4.11
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V. INSPECTIONS

State law provides authority for officers engaged in compliance evaluation

activities to enter any conveyance, vehicle, or facility or premises

sUbject to regulation or in which records relevant to program operation

are kept in order to inspect, monitor, or otherwise investigate compliance

with the State program including compliance with permit terms and

conditions and other program requirements.

Citation: ORS 468.095 (1971, 1973 & 1975)

VI. ENFORCEMENT REMEDIES

State statutes provide the following:

A. Authority to restrain immediately by order or by suit in State

court" any person from engaging in any unauthorized activity which

is endangering or "causing damage" to public health or the

environment.

Citation: ORS 468.100 (1973 & 1979)

ORS 468.115 (1971 & 1973)

B. Authority to sue in courts of competent jurisdiction to enjoin

any threatened or continuing violation of any program

requirement.

Citation: ORS 468~100 (1) and (2) (1971 & 1979)

C. Authority to assess or sue to recover in court civil penalties

in at least the amount of $1,000 per day for any program

violation or seek criminal remedies including fines in at least

the amount of $1,000 per day for any program violation.

Citation: ORS 468.140 (1971, 1973, 1975, 1977 & 1979)

ORS 468:990 (1953, 1957, 1959,-1961, 1965, 1967, 1969,

1971 & 1973)

ORS468.992 (1973)

ORS 161. 635 (I) (a) (1971)

OAR 340 - Division 12 (administrative history given

under each section)

VIII. AUTHORITY TO SHARE INFORMATION WITH EPA

State statute provides authority for most information obtained or used

in the administration of the State program to be available to EPA upon

request without restriction.

Citation: ORS 468.095(2) (1971, 1973 & 1975)

Remarks: Existing statute does not protect emission data under

Oregon's public records law. Further, this provision has been found

adequate under the Clean Water Act's National Pollutant Discharge

Elimination System permit program.

ZC408

4.12
•

I.

Statement of Clarification

of

Supplemental Attorney General's Statement

of January 30, 1981

I hereby certify, pursuant to my authority as an

Assistant Attorney General for the State of Oregon and

in accordance with Section 3006(c) of the Solid Waste

Disposal Act as amended by the Resource Conservation

and ·Recovery Act, as amended (42 USC 691, et ~) and

40 CFR 123, that in my opinion the supplemental Attorney

General's statement ~f January 30, 1981, signed by Dave

.Fro~~aye~, Attorney G~~~r~l of Oregon, regardi~g.the

Program Description ·submitted by the Oregon Department

of Environmental Quality to the United States Environmental

Protection Agency, continues fully applicable, and includes

applicability to the following addition to Section II.B.2.e

of the Program Description contemporaneously being submitted

to the United States Environmental Protection Agency by the

Oregon Department of Environmental Quality:

"The Director will not accept any hazardous

waste related record, report, or information

obtained pursuant to ORS468 and ruies adopted

thereunder which is purported to be confidential

unless the confidentiality has first been confirmed by the Regional Administrator. When the

information, if made public, would divulge a

secret process, device, or method of manufactur-·

ing or production entitled to protection as

trade secrets and has been determined by the

Regional Administrator to warrant confidential

status, the Director will then receive such

information and, upon a showing satisfactory

to him, shall classify it as confidential in

accordance with ORS 468.095(2)."

Assistant

fa?toml:w~ Attorney General

State of Oregon