# •• ATTORNEY GENERAL'S FIRST SUPPLEMENTAL STATEMENT FOR REVISED PROGRAM

In accordance with Section 3006(b) ofthe Resource Conservation andRecovery Act, as amended by the Hazardous and SolidWaste Amendments of 1984 (42 USC 6901, et seq,), and 40 CFR271, I certify, as an AssistantAttorney General for the State ofOregon, that inmyopinion the laws ofthe State ofOregon authorize the OregonEnvironmental Quality Commission (EQC) and Department of Environmental Quality (DEQ) to administerthe revised program set forth in the revised "Program Description" submittedjointlyby 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 spentpickle liquor from steel finishing operations. (See Revision Checklist 26.) 

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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 CFR261.32 pUblished in 51 FR 19322 (May 28, 1986), and OAR 340-100-002(2)(g) incorporates by reference the amendments to 40 CFR261.32 published in 51 FR 33612 (September 22, 1986). Authority to adopt these regUlations is providedunder 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 - 1 -A. EQC regulations define hazardous waste so as to control the generation, transportation, treatment, storage, and disposal ofhazardous wastes producedby generators of between 100 and 1,000 kilograms permonth ofhazardous 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 CFRParts 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 stringentthan 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. DEFINITIONOFSOLIDWASTE A. EQC regulations define management standards so as to control all the hazardous wastes controlled under 40 CFRParts 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 andhazardous 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 ORS466.086. B. EQC regulations define hazardous waste and impose management standards so as to control all the hazardous wastes controlledunder 40 CFRParts 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

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

- 2 -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 ofhazardous 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 providedunder ORS 466.020(1) and ORS466.086. B. Corporate Guarantee. EQC regulations allow owners and operators ofhazardous waste treatment, storage, and disposal facilities to demonstrate alternative liability coverageby 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 ofthis regulation is providedunder ORS 466.020(1) and ORS 466.086.

C. Hazardous Waste Storage and TreatmentTank System. EQC regulations require companies that generate, treat or store hazardous waste in containers to comply with tank standards equivalentto 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. MixedWastes. EQC regulations define hazardous wastes to include the hazardous components ofradioactive mixedwastes. 1. citation: ORS 466.005(7) - 3 -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 ofthis Attorney General's First Supplemental Statement. The memorandumverifies that the DEQhas 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 oftreatment, 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. CORRECTIVEACTION A. Engineering Feasibility Plan Requirements. EQC regulations require additional engineering plan requirements regarding groundwater contamination detected at the time ofPart Bpermit 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 OFINFORMATION (SeeRevision ChecklistAppendix D) A. Type ofRecords. Under state law and regUlations, the type ofrecords sUbject to public inspection is at least as broad as the type ofrecords 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, - 4 -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 ofthe pUblic's business, prepared, owned, used or retained by a pUblic body regardless of physical form orcharacteristics." ORS 192.410(4). "Writing" means "handwriting, typewriting, printing, photostating, photographing and every means ofrecording, including letters, words, pictures, sounds, or sYmbols, or any c0mbination thereof, and all papers, maps, magnetic orpaper tapes, photographic films andprints, magnetic or punched cards, discs, drums, or otherdocuments." ORS 192.410(5). This definition includes virtually any method ofrecording information. B. Records Available to Same Degree Available under Freedom of InformationAct. Records are available to the pUblic under state law to the same degree the records wouldbe available under the federal Freedom of InformationAct (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, ORS466.090; and OAR 340-100-003(2). Generally, ORS 192.501. 192.502, and 192.505 create exemptions, but do not require confidentiality. Stated anotherway, DEQ may in its discretion disclose records even ifORS 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 - 5 -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, DEQmay not disclose the records. ORS 192.502(7)

. The full text ofthe exemptions is included in AttachmentA. /91...502- C. Non-Exempt Records Available Regardless ofRequestor's Motive. Under state law, it is not necessary that a requestor state its justification or need in orderto obtain pUblic records. 1. Citations: See ORS 192.420. 2. Comment: None. D. Scope ofConfidential 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 directorby any person that records, reports or information, or particularparts thereof, ifmade public, would divulge methods orprocesses entitled to protection as trade secrets of suchperson, the director shall classify as confidential such record, report or information, orparticularpartthereof." The PUblic Record Law's definition of "trade secrets" under ORS 192.501(2) is set forth in full in Attachment A. Records withheldunder this exemptionmustmeet each ofthe following criteriapursuant to ORS 192.501(2): 1. Itmust be information that is notpatented; 2. Itmust be known only to a limited number of individuals within the commercial concern; 3. It is used in a business it conducts; - 6 -4. Ithas 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 requiredby 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 ofSubmission. EQC regulations require that a claim ofconfidentiality must be asserted at the time the information is submitted, or the informationmay 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 cannotbe resolvedwithin 20 days of receipt ofa request for the records claimed to be confidential, DEQ shall notify the requestor that his request is denied until the claim ofconfidentiality 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 certainmaterials 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 - 7 -necessary to gain interim and final authorization ofa hazardous waste regulatory programunder the provisions ofthe Federal Resource Conservation Recovery Act, P.L. 94-580, and the Hazardous and solidWaste amendments of 1984, P.L. 98-616 as amended, and federal regUlations and interpretative and guidance documents issuedpursuant to the Federal Resource Conservation and Recovery Act. The commissionmay adopt, amend or repeal any rule or license and the commission or departmentmay enter into any agreement necessary to implement this section." Therefore, DEQ has authority to enter and perform a MOA requiring thatmaterial such as press releases, educational materials, administrative orders, policy statements, regUlations, and othermaterials 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 submittedpursuant to the generator or treatment, storage ordisposal 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 MOAwith the EPArequiring 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 MOAwith EPAby which DEQ shall make reasonable efforts to assist requestors in identifying records and formUlating records requests. Moreover, it's DivisionpOlicy that programpersonnel 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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1. Thus, an MOAwith the EPArequ1r1ng DEQ to make a reasonable effort to assist requestors is unnecessary. Response within 20 Days. EQC regulations provide that DEQ shall eithergrant or deny a request for records within 20 days ofreceipt of the request, and that, ifDEQ fails to respond within 20 days, the request is deemed denied. state lawprovides that denial ofa pUblic record requestmay be appealed to the OregonAttorney General. 1. citations: ORS 192-450; OAR 340-100-005(2); OAR 340-100-005(3)• 2. Comment: None. J. Notice ofDenial and Right to Appeal. EQC regulations provide that DEQ shall notify a requestor in writing ofthe basis for denial ofa 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. RequestorMustHave At Least 30 Days to Appeal. No state law orregulation limits the time within which a requestormay petition the Oregon Attorney General to review a denial ofa pUblic record request by DEQ. Similarly, should the Attorney General affirm DEQ by denying the request for petition, there is no time limit for seekingjUdicial review ofthe Attorney General's order. 1. Citation: See ORS 192.450, 192.490. 2. Comment: None. L. Decision OnAdministrative Appeal Must be Made within 30 Days. State law provides that the Attorney General must act on a petition for review ofa DEQ denial within seven days of its receipt. 1. citation: ORS 192.450(1). 2. Comment: None.

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"M. No Decision onAdministrativeAppeal within 30 Days Constitutes Final AgencyAction SUbject to Judicial Review. State lawprovides that any failure by the Attorney General to rule on a petitionwithin seven days is deemed a denial ofthe petition for purposes ofjudicial review. 1. citation: ORS 192.465(1). 2. Comment: None. N. Opportunity for Judicial Review. State lawprovides that the Attorney General's denial of a petition, inwhole or in part, is sUbject to jUdicial review. 1. Citation: ORS 192.465(1). 2. Comment: None. O. Attorney's Fees onJudicial Review. State law provides that a requestor is entitled to attorney's fees and costs ifitprevails onjUdicial review. 1. citation: ORS 192.490(3). 2. Comment: None. P. Reduction orWaiver ofFees. EQC regulations require DEQ to considerthe reduction or waiver offees when records are requested by the media or a pUblic interest group. 1. citation: OAR 340-100-005(5).

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### I· 2. Comment: ORS 466.090(1) allows pUblic copying of DEQ's records "atthe expense ofany person requesting copies." OAR 340- 100-005(5) states: "The Department shall considerthe reduction or waiver ofany fees required to provide copies of records, ifthe records are requestedby the news media, a non-profitpUblic interest group, or any otherperson or entity, and the requestorprovides I a written statement in support ofreduction or waiver. The Departmentmay reduce orwaive fees,

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-ifthe Department determines that reduction or waiver serves the pUblic interest, taking into considerationthe magnitude ofthe request, the Department's resources, whether the information would not be obtainable by the requestorwithout the reduction orwaiver and any other factors' relevant to the pUblic interest

... Q. Fullest Possible Disclosure. state law authorizes DEQ to enter a MOAwith EPAby which DEQ agrees to fullest possible disclosure of pUblic records. Moreover, state law does not allow restriction ofaccess to information exceptwhere confidentiality is claimed and accepted by the state. 1. citation: ORS 466.086, 466.090, 190.110(1). 2. Comment: Fullestpossible disclosure ofrecords to thepUblic is ensured. Thus, anMOAwith EPArequiring fullest possible disclosure ofpUblic records is unnecessary. R. Record ofDenials. state law authorizes DEQ to enter a MOAwith EPAby

.which DEQ shall maintain a log or file ofdenials of

pUblic records requests. Moreover, state regUlations require written responses ofdenial thereby ensuring that record ofdenial is maintained. 1. Citation: ORS 466.086, 190.110(1), OAR 340-100- 005(3). 2. Comment: None Thus, anMOAwith EPArequ1r1ng the maintenance of record ofdenials is unnecessary. S. Changes in StateAuthority. state law authorizes DEQ to enter a MOAwith EPAby which DEQ shall informEPAofany proposedmodifications to its statutory or regulatory authority, or to its forms, procedures, orpriorities. 1. Citation: ORS 466.086, 190.110(1). 2. Comment: None. VII. MEMORANDUMOFAGREEMENT

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___day of DATED this Ifnecessary, for all DEQ functions identified in this statement as appropriate to a MOA, DEQ has authority to enter and execute theMOAprovisions without first promulgating a rule for thatMOAprovision to be binding. Ilr.t3

### t• DAVID FROHNMAYER Attorney General 

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Larry Edelman AssistantAttorney General OfAttorneys for Environmental Quality commission and Department of Environmental Quality

gc/gjc ZB7846 (revised 8/89)

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