•• ATTORNEY GENERAL' S FIRST SUPPLEMENTAL STATEMENT

FOR REVISED PROGRAM

In accordance with Section 3006(b) of the Resource Conservation

and Recovery Act, as amended by the Hazardous and Solid Waste

Amendments of 1984 (42 USC 6901, et seq,), and 40 CFR 271, I

certify, as an Assistant Attorney General for the State of Oregon,

that in my opinion the laws of the State of Oregon authorize the

Oregon Environmental Quality Commission (EQC) and Department of

Environmental Quality (DEQ) to administer the revised program set

forth in the revised "Program Description" submitted jointly by

the EQC and DEQ. Such authority is contained in statutes and

regUlations lawfully adopted and in effect at the time the

statement is signed, as specifically described below.

I. IDENTIFICATION AND LISTING

A. Spent Pickle Liquor.

EQC regulations list as a hazardous waste spent pickle

liquor from steel finishing operations. (See Revision

Checklist 26.)

• 1.

2.

citation: OAR 340-100-002(1) and OAR 340-100-

002(2)(g).

Comment: OAR 340-100-002(1) incorporates by

reference the amendments to 40 CFR 261.32

pUblished in 51 FR 19322 (May 28, 1986), and OAR

340-100-002(2) (g) incorporates by reference the

amendments to 40 CFR 261.32

published in 51 FR 33612 (September

22, 1986). Authority to adopt these

regUlations is provided under ORS

466.020 and ORS 466.086.

•

B. Appendix VIII. EQC regUlations contain lists of

hazardous wastes which encompass all wastes controlled

under federal regUlations as indicated in Revision

Checklist 29.

1. citation: OAR 340-100-002(2) (c).

2. Comment: OAR 340-100-002(2) (c) incorporates by

reference the amendments to 40 CFR

261.33 and Appendix VIII as

published in 51 FR 28296 (August 6,

1986) .

II. STANDARD FOR GENERATORS

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A. EQC regulations define hazardous waste so as to control

the generation, transportation, treatment, storage, and

disposal of hazardous wastes produced by generators of

between 100 and 1,000 kilograms per month of hazardous

wastes. (See Revision Checklist 23.)

1. Citation: OAR 340-100-002(1), 340-102-041, 340-

102-065.

2. Comment: OAR 340-100-002(1) incorporates by

reference CFR Parts 260-263 and 270 as amended

March 24, 1986 (51 FR 10174). In addition to these

federal requirements, OAR 340-102-041 requires

quarterly reporting by registered generators. OAR

340-102-065 requires small quantity generators to

pay annual fees to DEQ. These requirements are

more stringent than federal requirements.

Authority to adopt these regulations is provided

under ORS 466.020(4), ORS 466.075, ORS 466.165 and

ORS 466.086.

III. DEFINITION OF SOLID WASTE

A. EQC regulations define management standards so as to

control all the hazardous wastes controlled

under 40 CFR Parts 261, 264, 265, and 266.

(See Revision Checklist 13.)

1. citation: OAR 340-100-002(1).

2. Comment: OAR 340-100-002(1) incorporates by

reference the amendment published in 50 FR 614

(January 4, 1985) regarding recyclable materials

and hazardous waste recycling activities, and the

technical corrections to the rule published in 50

FR 14216 (April 11, 1985). OAR 340-100-002(1) also

incorporates by reference the technical

corrections published in 50 FR 33541 (August 20,

1985). Authority to adopt these regulations is

provided under ORS 466.020 and ORS 466.086.

B. EQC regulations define hazardous waste and impose

management standards so as to control all the hazardous

wastes controlled under 40 CFR Parts 261, 264, 265 and

266. (See Revision Checklist 37).

1. citation: OAR 340-100-002(2) (1) .

2. Comment: OAR 340-100-002(2) (1) incorporates by

reference the amendments to the "P" and ..u.. lists

as published in 52 FR 21306-7 (June 5, 1987).

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IV. STANDARDS FOR FACILITIES

A. Closure, Post-Closure, and Financial Responsibility.

EQC regulations require compliance with closure, postclosure, and financial responsibility requirements

applicable to owners and operators of hazardous waste

treatment, storage, and disposal facilities. (See

Revision Checklist 24.)

1. citation: OAR 340-100-002(1).

2. Comment: OAR 340-100-002(1) incorporates by

reference the amendments pUblished in 51 FR 16422

(May 2, 1986). Authority to adopt this regulation

is provided under ORS 466.020(1) and ORS 466.086.

B. Corporate Guarantee.

EQC regulations allow owners and operators of hazardous

waste treatment, storage, and disposal facilities to

demonstrate alternative liability coverage by a

corporate guarantee. (See Revision Checklist 27).

1. Citation: OAR 340-100-002(2) (a).

2. Comment: OAR 340-100-002(2) (a) incorporates by

reference the amendments pUblished at 51 FR 25350

(July 11, 1986). Authority for adoption of this

regulation is provided under ORS 466.020(1) and ORS

466.086.

C. Hazardous Waste Storage and Treatment Tank System.

EQC regulations require companies that generate, treat

or store hazardous waste in containers to comply with

tank standards equivalent to those indicated in Revision

Checklist 28.

1. citation: OAR 340-100-002(2) (b) and (f).

2. Comment: OAR 340-100-002(2) (b) and (f) incorporate

by reference the regulations pUblished in -52 FR

~I Pit. 2S"fl1.. 25470 (July 14, 1986) and 51 FR 29430-31

(August 15, 1986).

D. Mixed Wastes.

EQC regulations define hazardous wastes to include the

hazardous components of radioactive mixed wastes.

1. citation: ORS 466.005(7)

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2. Comment: See also Attorney General's Statement

dated February 12, 1988 attached. The February 12,

1988 memorandum from Larry Edelman to Bill Dana is

a part of this Attorney General's First

Supplemental Statement. The memorandum verifies

that the DEQ has the authority to regulate mixed

wastes.

E. Interim Status Standards for Surface Impoundments.

EQC regulations require compliance with closurejpostclosure and financial responsibility requirements

applicable to owners and operators of treatment, storage

and disposal facilities, as indicated in Revision

Checklist 36.

1. citation: OAR 340-100-002(2) (j).

2. Comment: OAR 340-100-002(2) (j) incorporate by

reference the regulations pUblished in 52 FR 8704

(March 19, 1987).

V. CORRECTIVE ACTION

A. Engineering Feasibility Plan Requirements.

EQC regulations require additional engineering plan

requirements regarding groundwater contamination

detected at the time of Part B permit application as

indicated in Checklist 38. .

1. citation: OAR 340-100-002(2) (m) and (n).

2. Comment: OAR 340-100-002(2) (m) and (n) incorporate

by reference the regulations published in 52 FR

23447 (June 22, 1987) and 52 FR 33936 (September 9,

1987) .

VI. AVAILABILITY OF INFORMATION (See Revision Checklist Appendix

D)

A. Type of Records.

Under state law and regUlations, the type of records

sUbject to public inspection is at least as broad as the

type of records defined in 40 CFR § 2.100(b).

1. citations: ·ORS 192.410; OAR 340-100-005(1).

2. Comments: OAR 340-100-005(1) provides that DEQ

records regarding ha~ardous waste treatment,

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storage, and disposal facilities and sites are

available to the pUblic in accordance with the

Oregon Public Records Law, ORS 192.410 through

192.501, 192.502 and 192.505. The Oregon Public

Records Law defines "public record" to include "any

writing containing information relating to the

conduct of the pUblic's business, prepared, owned,

used or retained by a pUblic body regardless of

physical form or characteristics." ORS 192.410(4).

"Writing" means "handwriting, typewriting,

printing, photostating, photographing and every

means of recording, including letters, words,

pictures, sounds, or sYmbols, or any c0mbination

thereof, and all papers, maps, magnetic or paper

tapes, photographic films and prints, magnetic or

punched cards, discs, drums, or other documents."

ORS 192.410(5). This definition includes virtually

any method of recording information.

B. Records Available to Same Degree Available under

Freedom of Information Act.

Records are available to the pUblic under state law to

the same degree the records would be available under the

federal Freedom of Information Act (FOIA).

1. citation: ORS 192.420, 192.501, 192.502, 192.505,

466.090; OAR 340-100-003(2).

2. Comment: Under the Oregon Public Records Law,

every pUblic record is sUbject.to pUblic

inspection, except as otherwise expressly provided

by ORS 192.501, 192.502, and 192.505. Similarly,

under Oregon's currently authorized RCRA program,

all information filed or submitted to DEQ is

available for public inspection and copying,

subject to the trade secret exemption (discussed

below) and the other exemptions set forth in ORS

192.501, 192.502, 192.505, ORS 466.090; and OAR

340-100-003(2).

Generally, ORS 192.501. 192.502, and 192.505

create exemptions, but do not require

confidentiality. Stated another way, DEQ may in

its discretion disclose records even if ORS

192.501, 192.502, and 192.505 allow it not to

disclose.

The exemptions regarding litigation, trade secrets,

criminal investigations, personnel actions,

internal agency advice, personal privacy, and

lending institutions appear to track the

exemptions set forth in 5 USC § 552(b). DEQ has

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the discretion to disclose records falling within

these general categories, including those

paralleling the categories under 5 USC § 552(b) (2),

(5), and (7), should the public interest so

require.

If federal law or regulations specifically prohibit

disclosure, DEQ may not disclose the records. ORS

192.502 (7) .

The full text of the exemptions is included in

Attachment A. /91...502-

C. Non-Exempt Records Available Regardless of Requestor's

Motive.

Under state law, it is not necessary that a requestor

state its justification or need in order to obtain

pUblic records.

1. Citations: See ORS 192.420.

2. Comment: None.

D. Scope of Confidential Business Information.

Trade secrets as defined under state law is not broader

than confidential business information (CBI) as defined

under 40 CFR §§2.201(e) and 2.208.

1. Citations: ORS 192.501(2), 466.090(2).

2. Comment: ORS 466.090(2) provides that:

"Upon a showing satisfactory to the director by any

person that records, reports or information, or

particular parts thereof, if made public, would

divulge methods or processes entitled to protection

as trade secrets of such person, the director shall

classify as confidential such record, report or

information, or particular part thereof."

The PUblic Record Law's definition of "trade secrets"

under ORS 192.501(2) is set forth in full in Attachment

A. Records withheld under this exemption must meet each

of the following criteria pursuant to ORS 192.501(2):

1. It must be information that is not patented;

2. It must be known only to a limited number of

individuals within the commercial concern;

3. It is used in a business it conducts;

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4. It has commercial value;

5. It gives its users the chance to obtain a business

advantage over competitors not having the

information; and

6. Its disclosure is not required by the pUblic

interest.

The initial burden is on the business to show DEQ that

the information constitutes a trade secret. ORS

466.090(2). The burden then is upon DEQ to justify nondisclosure under the above criteria.

E. CBI Must Be Claimed at Time of Submission.

EQC regulations require that a claim of confidentiality

must be asserted at the time the information is

submitted, or the information may be made available to

the pUblic without further notice.

1. citation: OAR 340-100-003(2).

2. Comment. None.

F. Failure to Resolve CBI Claim.

EQC regulations provide that, in the event a claim of

confidentiality cannot be resolved within 20 days of

receipt of a request for the records claimed to be

confidential, DEQ shall notify the requestor that his

request is denied until the claim of confidentiality is

resolved.

1. citation: OAR 340-100-005(4).

2. Comment: None.

G. Materials Routinely Available without formal FOI.

State law authorizes DEQ to enter a Memorandum of

Agreement (MOA) with the U.S. Environmental Protection

Agency (EPA) by which DEQ shall make certain materials

routinely available without a formal pUblic records

request.

1. Citation: ORS 466.086; 190.110(1).

2. Comment: ORS 466.086 provides that:

"The commission and the department are authorized

to perform or cause to be performed any act

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necessary to gain interim and final authorization

of a hazardous waste regulatory program under the

provisions of the Federal Resource Conservation

Recovery Act, P.L. 94-580, and the Hazardous and

solid Waste amendments of 1984, P.L. 98-616 as

amended, and federal regUlations and interpretative

and guidance documents issued pursuant to the

Federal Resource Conservation and Recovery Act.

The commission may adopt, amend or repeal any rule

or license and the commission or department may

enter into any agreement necessary to implement

this section."

Therefore, DEQ has authority to enter and perform a MOA

requiring that material such as press releases,

educational materials, administrative orders, policy

statements, regUlations, and other materials prepared

for routine public distribution shall be available

without a formal pUblic records request.

Moreover, DEQ is required to make available without a

formal For to the pUblic any information filed or

submitted pursuant to the generator or treatment,

storage or disposal statutes and regUlations that is not

designated confidential pursuant to the DEQ's statutes

and regUlations.

1. citations: ORS 466.090

2. Comment: ORS 466.090 does not require a ForA

request.

Therefore, an MOA with the EPA requiring materials be

~ade routinely available to the pUblic without a ForA

request is unnecessary.

H. Assistance to Requestors.

state law authorizes DEQ to enter a MOA with EPA by

which DEQ shall make reasonable efforts to assist

requestors in identifying records and formUlating

records requests. Moreover, it's Division pOlicy that

program personnel assist requestors by obtaining files

and providing a file reviewing area. Certain DEQ staff

have been delegated this responsibility.

1. Citations: ORS 192.430; ORS 190.110(1).

2. Comment: ORS 192.430.requires DEQ to "furnish

proper and reasonable opportunities for inspection

and examination of [public] records."

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Ie

1.

Thus, an MOA with the EPA requ1r1ng DEQ to make a

reasonable effort to assist requestors is unnecessary.

Response within 20 Days.

EQC regulations provide that DEQ shall either grant or

deny a request for records within 20 days of receipt of

the request, and that, if DEQ fails to respond within 20

days, the request is deemed denied. state law provides

that denial of a pUblic record request may be appealed

to the Oregon Attorney General.

1. citations: ORS 192-450; OAR 340-100-005(2); OAR

340-100-005 (3) •

2. Comment: None.

J. Notice of Denial and Right to Appeal.

EQC regulations provide that DEQ shall notify a

requestor in writing of the basis for denial of a pUblic

record request and the requestor's right to appeal the

denial to the Oregon Attorney General by petition.

1. citation: OAR 340-100-005(3).

2. Comment: None.

K. Requestor Must Have At Least 30 Days to Appeal.

No state law or regulation limits the time within which

a requestor may petition the Oregon Attorney General to

review a denial of a pUblic record request by DEQ.

Similarly, should the Attorney General affirm DEQ by

denying the request for petition, there is no time limit

for seeking jUdicial review of the Attorney General's

order.

1. Citation: See ORS 192.450, 192.490.

2. Comment: None.

L. Decision On Administrative Appeal Must be Made within 30

Days.

State law provides that the Attorney General must act on

a petition for review of a DEQ denial within seven days

of its receipt.

1. citation: ORS 192.450(1).

2. Comment: None.

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"
M. No Decision on Administrative Appeal within 30 Days

Constitutes Final Agency Action SUbject to

Judicial Review.

State law provides that any failure by the Attorney

General to rule on a petition within seven days is

deemed a denial of the petition for purposes of judicial

review.

1. citation: ORS 192.465(1).

2. Comment: None.

N. Opportunity for Judicial Review.

State law provides that the Attorney General's denial of

a petition, in whole or in part, is sUbject to jUdicial

review.

1. Citation: ORS 192.465(1).

2. Comment: None.

O. Attorney's Fees on Judicial Review.

State law provides that a requestor is entitled to

attorney's fees and costs if it prevails on jUdicial

review.

1. citation: ORS 192.490(3).

2. Comment: None.

P. Reduction or Waiver of Fees.

EQC regulations require DEQ to consider the reduction or

waiver of fees when records are requested by the media

or a pUblic interest group.

1. citation: OAR 340-100-005(5).

I

I·

2. Comment: ORS 466.090(1) allows pUblic copying of

DEQ's records "at the expense of any

person requesting copies." OAR 340-

100-005(5) states:

"The Department shall consider the reduction or

waiver of any fees required to provide copies of

records, if the records are requested by the news

media, a non-profit pUblic interest group, or any

other person or entity, and the requestor provides I

a written statement in support of reduction or

waiver. The Department may reduce or waive fees,

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if the Department determines that reduction or

waiver serves the pUblic interest, taking into

consideration the magnitude of the request, the

Department's resources, whether the information

would not be obtainable by the requestor without

the reduction or waiver and any other factors'

relevant to the pUblic interest...

Q. Fullest Possible Disclosure.

state law authorizes DEQ to enter a MOA with EPA by

which DEQ agrees to fullest possible disclosure of

pUblic records. Moreover, state law does not allow

restriction of access to information except where

confidentiality is claimed and accepted by the state.

1. citation: ORS 466.086, 466.090, 190.110(1).

2. Comment: Fullest possible disclosure of records to

the pUblic is ensured.

Thus, an MOA with EPA requiring fullest possible

disclosure of pUblic records is unnecessary.

R. Record of Denials.

state law authorizes DEQ to enter a MOA with EPA by . which DEQ shall maintain a log or file of denials of

pUblic records requests. Moreover, state regUlations

require written responses of denial thereby ensuring

that record of denial is maintained.

1. Citation: ORS 466.086, 190.110(1), OAR 340-100-

005(3).

2. Comment: None

Thus, an MOA with EPA requ1r1ng the maintenance of

record of denials is unnecessary.

S. Changes in State Authority.

state law authorizes DEQ to enter a MOA with EPA by

which DEQ shall inform EPA of any proposed modifications

to its statutory or regulatory authority, or to its

forms, procedures, or priorities.

1. Citation: ORS 466.086, 190.110(1).

2. Comment: None.

VII. MEMORANDUM OF AGREEMENT

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DATED this ___ day of 1989.

If necessary, for all DEQ functions identified in this

statement as appropriate to a MOA, DEQ has authority to enter

and execute the MOA provisions without first promulgating a

rule for that MOA provision to be binding.

Ilr.t 3 t •

DAVID FROHNMAYER

Attorney General

et7.&---

Larry Edelman

Assistant Attorney General

Of Attorneys for

Environmental

Quality commission and

Department of

Environmental Quality

gc/gjc ZB7846 (revised 8/89)

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