ft EPA
United States
Environmental Protection
Agency
Office of
Solid Waste- and
Emergency Response
DIRECTIVE NUMBER: 9540.00-10
TITLE: Capability Assessment Guidance
APPROVAL DATE:
EFFECTIVE DATE:
January 30, 1992
January 30, 1992
ORIGINATING OFFICE: office of Solid Waste (PSPD)
and
• Office of Waste Programs Enforcemen
X| FINAL (PCPA Enforcement Division)
DRAFT
STATUS: E A - Pending OMB Approval
D B - Pending AA-OSWER Approval
REFERENCE (Other Documents):
OSWER OSWER OSWEh O£WEr
DIRECTIVE DIRECTIVE DIRECTIVE:
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PD No. 95AO.OO-10
1SE,
i
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
IfVM 3 0 1QQ/ OFPICE of
JHl' jU \J«*«- SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Release of New Capability Assessment Guidance
FROM: Sylvia K. Lowrance, Direc.
Office of Solid Waste
Bruce M. Diamond, Directoj
Office of Waste Programs Enforcement
TO: Addressees
We are pleased to announce the release of the long awaited
Capability Assessment Guidance. As mentioned in the RCRA
Implementation Study (RIS) i, one of EPA's goals is to assist the
States in becoming authorized to implement the hazardous waste
program. Problems in assessing a State's capability have caused
tensions among Headquarters, Regional and State staff, as also
identified in the RIS. However, we believe this document may
help resolve some of the tensions in this process.
The current authorization process is under review and may be
changed in the near future. The Capability Assessment will be a
part of these discussions, and this Guidance may be revised
appropriately. In the meantime, this Guidance will assist the
Regional Offices in authorizing States until the revised
procedure is finalized.
In addition to the Guidance, you will also find attached a
Responsiveness Summary to comments that were received on the
draft Guidance.
We are grateful to the many State, Regional and Headquarters
personnel that assisted in producing this document. If you have
any questions, please call Mike Flynn, Acting Chief, State and
Regional Programs Branch at 202-260-2210 or Steve Heare at 202-
260-2207.
Attachments
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PD No. 9540.00-10
Addressees:
Hazardous Waste Division Directors, Regions I - X
ASTSWMO
Workgroup Members:
Gary Gosbee, Region I
Denis Zielinski, Region III
Tricia Herbert, Region IV
Paul Dimock, Region V
Chris Liszewski, Region V
Bill Gallagher, Region VI
Dan Wheeler, Region VII
Victoria Pearman, Region IX
Betty Weise, Region X
Karol Akers, State of VA
Dave Sholtis, State of OH
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PD No. 9540.00-10
i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
c, mn» * WASHINGTON. D.C. 20460
\^
** 25 1991
OF FfCE OF
SOl-iO WASTE. ANOE.VERGENCv RESPONSE
MEMORANDUM
SUBJECT: Responsiveness Summary to Comments on the
Draft Capability Assessment Guidance
FROM: Mary Jean Osborne, Chief
Program Analysis and Coordination-! Section, OWPE
Richard LaShier,
Regional Coordinatioj^nd Implementation Section, OSW
TO: Addressees
We would like to thank each of you for providing comments on
the final draft guidance. We reviewed all comments that were
mailed or phoned in, and have revised the draft, as appropriate.
This memorandum addresses the significant comments that were
not resolved by the Capability Assessment Guidance Workgroup.
For each significant comment, we present a summary of the concern
underlying the comment as well as our response to the comment.
1. Use of Capability Assessment Outside of an Authorization
Decision
Concern: The guidance currently states that an assessment
is performed in conjunction with an authorization decision.
Several people felt that capability assessments are an on-
going process and should be used whenever appropriate, not
just when applying for additional parts of the program.
However, others have stated the opposite. Can we expand the
guidance to say that a capability assessment can also be
"triggered" by any evidence of poor quality or performance,
not necessarily related to an authorization decision?
Response: Yes. Although capability assessments are usua L I'z
completed as part of an authorization decision, the
- capability of a State is an on-going concern. New language
has been added to the guidance which states that a formal
capability assessment may be completed at other times, when
there is a strong basis for believing a State's capability
is an issue.
PriMtd cm Kt>.-*:ltd Paper
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PD No. 9540.00-10
However, we expect that the preparation of a capability
Assessment outside of the authorization process would be
for very exceptional cases.
2 . Capability Assessments in Relation to Program Withdrawal
Concern: The guidance currently states that a State which
~" exhibits one or more "unacceptable" criteria may not only be
ineligible for authorization, but also may be incapable of
implementing the currently authorized program. Thus the
State may be a candidate for withdrawal of the program based
on lack of capability, pursuant to Section 271.22.
One comment has been raised that capability assessments can
only be used in an authorization context and that tying the
assessmenttp withdrawal is not appropriate. However,
anothec_jjs?s mentioned linking an assessment to possible
withdrawal as leverage that a State could use to enhance -
program capability. For instance, after a negative
assessment, the State agency learns that EPA is considering
withdrawal proceedings because of lack of resources. The
State agency could use the possibility of withdrawal to
leverage more resources from the State legislature.
Can the Capability Assessment be used in this context?
Response: Yes. Many of the program withdrawal criteria in
Section 271.22 are directly related to the "unacceptable"
criteria in this guidance document. To the extent that lack
of acceptable capability can be linked to one of the Section
271.22 criteria, a capability assessment is appropriate in
the context of program withdrawal. In these exceptional
cases where EPA chooses to pursue program withdrawal , the
capability assessment could be an important supporting
document in the record of those proceedings.
To clarify, however, withdrawal proceedings are
discretionary and extraordinary. Even if EPA were to
document one or more "unacceptable" criteria in the
capability assessment, there could be other compelling
reasons why EPA would not undertake withdrawal. The
guidance states this only as a possible action.
3 . Capability of the State as a Whole
i
Concern: Historically, capability has usually involved only
the State agency that is responsible for implementing the
RCRA program. However, occasionally there are legislative
or institutional barriers that affect the State's
capability. Although the State agency may have made valiant
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PD No. 9540.00-10
efforts to overcome these barriers, they have been
unsuccessful. Can this serious weakness, attributable to
this barrier, be a stopper for authorization?
Response: Yes. When a btate is authorized for the RCRA
program, the entire State, including such entities as the
legislature and the Attorney General's Office, are also
"authorized". If capability is unduly affected by the
untimeliness of actions" by a State Permits Board or lack of
fiscal support by a legislature, then the imp]ementation of
the State's hazardous waste program may be seriously
undermined, despite the best efforts of any one agency.
4. "Attitude" of State
Concern: Several commenturs (both Region and State) felt
that any reference to a State's "attitude" or willingness to
work out differences with EPA was too subjective to measure
and, therefore, not an appropriate criterion. However,
others feel that objective (for instance, quantitative)
criteria were not possible to define. The entire process is
intrinsically subjective. Should the criteria in the
guidance that references "attitude" be deleted?
Response: Yes. All references to attitude have been
removed from the acceptable and unacceptable criteria.
Where possible, measurable criteria have been added.
5. When to Perform a Capability Assessment
Concern: No specific rules, such as Corrective Action, are
specifically required to have an Assessment completed in the
draft guidance. Several comments were mentioned that
because Corrective Action is such a significant part of the
program, shouldn't an assessment be required?
Response: After discussing with Headquarters' and Regional
Section Chiefs, a decision was made to include Corrective
Action as a specific rule requiring a capability assessment.
While there may be cases where a small facility universe
would mitigate the impact of the new authority on a State's
program, this circumstance could be easily documented in th-i
capability assessment.
Again, we would like to thank you for commenting on this
document. Your suggestions have made this a better guidance
document that will hopefully assist in the authorization procc-.it;.
If you have any questions, feel free to call Zena Aldridqe,
co-chair of the Workgroup, at FTS or (202) 260-9656.
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PD No. 9540.00-10
RCRA State Authorization
Capability Assessment Guidance
October 1991
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PD No. 9540.00-10
STATE RCRA PROGRAM
CAPABILITY ASSESSMENT GUIDANCE
Page
I. Introduction
A. History of Oversight and Evaluation of State 2
RCRA Subtitle C Programs
1. National Program Criteria
2. Program Evaluation Guidance
3. HSWA Capability Assessment
B. Purpose of the Capability Assessment 3
C. Scope of the Capability Assessment 3
II. Capability Assessment Process
A. Roles of the Various Organizations 5
1. States
2. Regional Offices
3. Headquarters
B. When to Perform Capability Assessments 6
III. Criteria
A. Criteria for Identifying Acceptable State 7
Capability
B. Examples of Criteria for Identifying 9
Unacceptable Capability
C. Applying the Criteria 1L
IV. Documentation of Authorization Decision Based on
Capability
A. What Decision Has Been Made 12
B. What Review Process Was Used 12
C. Certification by Regional Division Director 13
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r~' AO.
I. INTRODUCTION
As the process of delegating RCRA program authority for
Subtitle C to the States has evolved, EPA has developed and
refined its policy regarding oversight and program evaluation on
a number of occasions. This Capability Assessment Guidance is
the most recent in a series of policy statements that attempts to
define the attributes of a quality hazardous waste program to
promote national consistency.
The Capability Assessment Guidance builds on existing
guidance by further refining the oversight and evaluation
function that EPA assumes with regard to State hazardous waste
program authority. This guidance addresses more explicitly the
practical questions of the purpose and scope of a capability •
assessment, the roles of EPA and the States, when an assessment
is required, the criteria for assessing capability, and the
documentation needed once an assessment has been made. It also
seeks to focus the capability assessment on the overall, long-
term performance of the State program and the expected future
performance, acknowledging that the assessment is done at a
single point in time, but that the review process is performed
continuously. Crucial to an accurate, meaningful capability
assessment, therefore, is the on-going review process, and how it
is tailored by the Region to the State's program, using the
National Criteria and the Program Evaluation Guide as they were
intended to be used.
History of Oversight and Evaluation of State RCRA Subtitle C
Programs
In May, 1984, the Office of Solid Waste and Emergency
Response (OSWER) published the "Interim National Criteria for a
Quality Hazardous Waste Management Program under RCRA" to set
basic goals and performance expectations for the State and EPA in
managing the RCRA program. These criteria have been widely used
in defining program capabilities for the purpose of authorizing
States for the RCRA hazardous waste program.
In July, 1986, OSWER issued the "National Criteria for a
Quality Hazardous Waste Program under RCRA". This document
contains criteria to be used by EPA Headquarters and Regions, and
by the States, for assessing program performance, "to reach
agreement on the steps necessary to build and sustain a quality
program over time," and to "define consistent evaluation
protocols for...overseeing the program on an on-going basis,"
among other things.
••. .
On April 8, 1987, OSWER Assistant Administrator J. Winston
Porter signed a memo that described more fully OSWER policy
regarding the evaluation of capability in the context of an
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PD No. 9540.00-10
authorization decision for State program revisions. This memo
stated that a capability assessment was needed when authorization
will result in significant impacts on the State's workload and
includes any application for HSWA Corrective Action. It also
indicated that the Regional Office would consult with
Headquarters to develop an action plan to identify what the State
must do to upgrade its program.
In March, 1988, OSWER issued the RCRA Program Evaluation
Guide to assist Regional Offices in conducting regular reviews of
State programs. It incorporates the program goals of the 1986
National Criteria, and provides procedures, checklists, and
questions that can be used to perform a tailored review of a
State's program. While not intended as a mandatory procedures
manual, the RCRA Program Evaluation Guide serves to ensure
national consistency in fulfillment of the requirements of 40 CFR
Section 35.150 relative to a process for evaluating a grant
recipient's performance.
Purpose of the Capability Assessment
A capability assessment is typically performed in
conjunction with a State's application for RCRA Subtitle C
program authority or as part of the periodic program evaluation
process. EPA assesses the ability of the State to implement
provisions of the RCRA program for which the State is seeking
authorization. In general, a capability assessment is required
for base program authorization and for program revisions that
involve major areas of the hazardous waste regulatory program.
Examples of program revisions requiring assessments are HSWA
Corrective Action and the Land Disposal Restrictions programs.
This determination of State capability is based on the quality of
the State's existing hazardous waste management program and the
impact of additional RCRA authority on its program. EPA must be
assured that the overall authorized hazardous waste program meets
the criteria for acceptable State capability, and does not
exhibit any of the criteria for an unacceptable program (see
discussion below on Criteria). EPA, therefore, uses the
capability assessment to predict whether future performance will
remain acceptable.
Scope of the Capability Assessment
To determine a State's capability, EPA will evaluate the
State's entire program, rather than concentrating only on
specific aspects of the program, or only on quantifiable program'
elements (e.g., numbers of permits written, numbers of
enforcement actions taken, etc.). Such a holistic approach will
rely more on long-term effectiveness, long-term commitments,
constant improvement over time, and consistency of performance,
rather than on short-term problems or quantifiable measures only.
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EPA will assess overall capability in light of the following
characteristics:
Past Performance
o Regular review of the State's performance by the
Regional Office, including quantitative measures (i.e.,
how well did the State meet grant commitments), to
determine the trend toward an increase or decrease
in quality.
o The level of quality evident in the conduct of the
State's permitting, enforcement, and program management
activities.
Resources and Skixl Mix
o The demonstrated ability of the State to bring
sufficient and appropriate resources to the program,
regardless of short-term vacancies, unpredictable
legislative activities regarding current year
appropriations, and competing demands for resources
within the State agency for other priorities.
Training Program ,.
o The on-going commitment made to improving performance
through professional development and training of staff,
including support staff and managers.
Future Expectations
o The anticipated effect of new RCRA authority on the
State's performance, in light of relevant external
factors in the State and the complexity of the new
authority the State is seeking.
State's Commitment
o Willingness of the State to resolve issues with EPA and
the degree to which legislative, organizational, or
institutional barriers to program implementation are
effectively dealt with.
These characteristics reflect the overall State program, as
evidenced over the course of several years or more. The
assessment made at one point in time should reflect the lonq-tem
and thus must rely heavily the Region's experience in oversee ing
the State and the progress documented in oversight reviews.
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PD No. 9540.00-10
5
II. CAPABILITY ASSESSMENT PROCESS
A. Roles of the Various Organizations
The capability assessment process primarily involves the
State agency and the Regional Office, although Headquarters
maintains a policy development oversight role.
State's Role:
The State is responsible for determining its overall
needs for successfully managing the program for which it is
authorized, and for which it is seeking authorization. The
State must then demonstrate to EPA, through the
authorization process, that it can adequately meet those
needs. The State will base this demonstration on EPA
guidance, such as the National Criteria for a Quality
Hazardous Waste Program under RCRA, and the criteria
contained in this guidance.
EPA Regional Office Role:
The Regional Office will review and evaluate the
State's demonstration whenever an authorization decision is
pending, based on the Criteria for Identifying Acceptable
State Capability, and on the Region's experience in
overseeing the State's overall performance. The Region will
decide whether the State has adequately demonstrated
capability, and will determine whether to authorize the
State for the RCRA program authority sought. It is the
Region's responsibility to determine when a capability
assessment is needed, consistent with the criteria discussed
in this section.
EPA Headquarters Role:
Headquarters will work to ensure national consistency
of authorization decisions by providing national guidance
and overseeing Regional performance. Headquarters staff
will perform periodic reviews to identify issues or problems
the Regions are facing with regard to Subtitle C
authorization, including issues related to capability.
Results of these reviews may be factored into the Regional
Reviews performed by OSWER management. New guidance on
Headquarters oversight responsibility is being prepared.
This guidance will reflect the recent decision to delegate
authority for authorization decisions to the Regional
Offices on a pilot basis.
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j '•-• u • u u - u
B. Whan to Perform Capability Assessments
In general, a capability assessment is performed whenever a
decision is pending on final authorization of a state's base
hazardous waste program, or on major revisions to the base
program as discussed below. For EPA to authorize a State for the
base RCRA program there must be adequate assurance of the State's
ability to implement the program. EPA will not authorize a State
program where serious concerns exist regarding capability.
Since most States are authorized for the base program, a
capability assessment will primarily be needed for certain
program revision authorization decisions. Specifically, when a
State is applying for Corrective Action authority, a capability
assessment must be completed. Corrective Action is currently the
only regulation specifically required to have an assessment.
Generally, a capability assessment will be required when
authorizing a State for new RCRA authority that has a major
impact on the State's program. A decision on whether a
capability assessment is needed for a particular authorization
application will be made on a case-by-case basis, using the
criteria listed below. The decision should be made by the RCRA
Division Director responsible for State Authorization, State
Program Development, or State Grants.
Major impacts on a State's program could include:
New regulatory authority causes substantial
increase in the State-wide regulated universe;
New regulations require State staff with new
technical training and skill;
New regulations may require a greater commitment
of resources to the State's hazardous waste
program;
- Material, substantive changes in the State's
organization, personnel system, or funding base
that might have a significant adverse impact on
long-term performance.
In some cases, authorization for a major new RCRA regulation
may have minimal effect on the State's program. For example, a
State that has been successfully implementing the Land Disposal
Restrictions under State authority may be minimally affected ty
receiving authorization. On the other hand, a State that adopts
and seeks authorization for a new waste listing may experience a
major impact if listing the waste brings substantial numbers of
new facilities into the State's regulated universe.
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PD No. 95AO.00-10
In addition, EPA Headquarters should also be consulted when
deviating from national guidance, or when major issues are
identified, to ensure national consistency.
III. Criteria
In any capability assessment, regardless of the status of
the currently authorized program in the State or the new
authority being sought, consistent measures must be employed.
For many critical aspects of a State's program, these measures
are not readily quantifiable. Additionally, a holistic approach
to assessing capability implies that trade-offs (i.e., a
balancing of positive and negative aspects of a State's program
at a single point in time) will routinely be made in arriving at
an authorization decision based on capability. An assessment
relying too heavily on quantifiable measures is not conducive to
arriving at an authorization decision based on trade-offs
involving criteria stated in non-quantifiable terms.
Following are two sets of criteria and a discussion of their
use in a capability assessment. The first set of criteria
consists of primarily non-quantifiable statements that describe
an acceptable State hazardous waste program. The second set of
examples of criteria identifies clearly unacceptable conditions.
In basing a capability assessment on long-term performance and
commitment to continual improvement, rather than focusing on
short-term, correctable problems, these criteria allow EPA to
factor in Regional experience with the State's on-going effort to
build and improve upon its program's quality.
In describing these criteria, an arbitrary time period of
three years is used. This three year period is considered to be
a reasonable "nile-of-thumb" amount of time over which a trend
can be discerned, and evidence of long-term improvement or lack
of improvement can be justified. Three years is considered to be
a sufficient period of time to allow a State to correct a serious
problem, but not an unreasonably long period of time to allow a
clearly unacceptable condition to remain unaddressed, as the
State seeks added responsibility for its hazardous waste program.
A. CRITERIA FOR IDENTIFYING ACCEPTABLE STATE CAPABILITY
(ACCEPTABLE CRITERIA)
Components to be considered by the Region:
1. Permitting Program
The State has and uses a multi-year permitting strategy
that addresses the most environmentally significant
facilities and is consistent with current national
priorities and guidances.
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8
Permits are generally of good quality as established by
current guidances, manuals and policies.
The State has consistently met the majority of
permitting grant commitments, or is making significant
improvements toward meeting commitments.
2. Compliance Monitoring and Enforcement Program
The State has and uses an Enforcement strategy that is
consistent with national priorities and guidances.
Inspections are of good quality and consistent with
current guidances.
The State is generally able to identify violators and
make reasonably rapid progress meeting prescribed
timeframes in final enforcement orders according to
current enforcement policy (e.g., Enforcement Response
Policy).
The State has consistently met the majority of
compliance monitoring and enforcement grant
commitments, or has demonstrated a trend of significant
improvements towards meeting commitments.
3 . Corrective Action Program
The State has and uses a priori'tization system which
provides results consistent with national priorities to
address the most environmentally significant sites
first.
Corrective Action activities (interim measures, RFAs,
RFIs, CMSs, CMIs, etc.) are of good quality and are
completed using current EPA guidances, manuals and
policies. The State makes consistent progress toward
completing cleanups.
The State has consistently met the majority of
corrective action grant commitments, or is making
significant improvements toward meeting commitments.
4. Management Program
- Resources and Skill Mix; The State has
consistently devoted sufficient resources
necessary to match the Federal Section 3011 grant
funds, and has consistently maintained a staff
that is large enough and has the technical skills
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fD-No. 9540.00-10
and experience necessary to effectively manage the
existing program and the additional program
responsibilities that the State is seeking.
Training; The State ensures that all staff are
adequately trained, commensurate with their
program responsibilities and applicable order
requirements (e.g., Order 3500.1 for inspectors).
Information Management; The State has and
effectively uses an appropriate data system (e.g.,
CARS, RCRIS, etc.) that provides timely and
accurate information to the program and EPA.
5. Future Expectations
The State demonstrates that it has the necessary
resources, experience and organizational structure to
successfully implement the new provisions for which it
is seeking authorization.
B. EXAMPLES OF CRITERIA FOR IDENTIFYING UNACCEPTABLE STATE
CAPABILITY (UNACCEPTABLE CRITERIA)
Components to be considered by the Region:
1. Permitting Program
The State agency has failed to make timely final permit
determinations for facilities identified as a high
environmental priority.
State-drafted permits are of poor quality and require
substantial re-writing by the Region for technical or
other deficiencies, and this condition has not
appreciably improved over several years. The State is
also non-responsive to appropriate comments.
2. Compliance Monitoring and Enforcement Program
The State agency consistently fails to impose and
collect adequate penalties for clearly significant
violations, based on current EPA policy.
State inspections are of poor quality. The inspection
files are poorly organized and do not include proper
documentation and verification.
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10
The rate of timely and appropriate enforcement actions
has continued in a declining trend or at a consistently
low level for several years, and the majority of High
Priority Violations are not being identified and/or
reported by State inspectors.
The quality of enforcement actions, (e.g.,
administrative orders) is poor. They are not prepared
according to prescribed guidance. Referrals to the
Attorney General or to EPA are generally incomplete.
3 . Corrective Action Program
The State's priority setting procedures for identifying
and addressing environmentally significant facilities
for corrective action are substantially inconsistent
with the national program.
Corrective action activities are of poor quality, and
have not been improving in quality, requiring
increasing oversight and management by EPA.
The State is falling further behind in meeting
corrective action grant commitments over a period of
several years.
The State has failed to make substantial progress in
cleaning up high priority facilities, over a period of
three years.
4. Management Program
The State agency is significantly understaffed, and has
been unable to correct this situation over a three year
period.
There is a high turnover rate among State personnel
that has resulted in poor quality work and the State's
inability to implement an effective program. No
serious improvement has been made by the State in
reducing the turnover rate or in retaining qualified
staff.
State authorization applications are consistently of
poor quality, (i.e., are incomplete, internally
inconsistent, or do not identify differences with the
Federal program) and/or application commitments are
consistently shifted over several fiscal-years.
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PD No. 9540.00-10
11
5. Future Expectations
The State agency is unwilling to make program revisions
for non-HSWA program changes on a timely basis,
consistent with Part 271.21 deadlines, in absence of
any institutional barrier, or needed enactment of
legislation.
Economic crisis in the State resulting in permanent or
long-term erosion of the revenue base, casting doubt
upon the State's ability to implement an effective
expanded hazardous waste program.
The State legislature has set up boards, commissions,
or other mechanisms that effectively block or cause
veto of state agency decisions that are consistent with
the authorized program. An example is a State with a
siting board that approves or denies permits based on
criteria that are inconsistent with the State's
authorized hazardous waste program.
c. Applying the Criteria
The Criteria for Identifying Acceptable State Capability are
designed to be applied to a State's overall performance in a
general way, allowing trade-offs to be routinely made, rather
than establishing strict quantitative measures which must all be
achieved in order to obtain a positive assessment of capability.
While each State should constantly strive to improve its
hazardous waste program to achieve the highest level of
excellence, the EPA Regional Office will determine that a State
program has achieved an acceptable level of capability if the
State has made a reasonable effort to meet the Acceptable
Criteria, when viewing the program as a whole, over the course of
several (3 or more) years. A consistent good faith effort to
maintain a program that essentially meets these criteria, or is
generally improving on aspects of the program that do not meet
the criteria, should warrant a favorable capability assessment by
the Region.
The Criteria for Identifying Unacceptable State Capability,
however, are designed to identify conditions that are serious
weaknesses in the State's program, which, if not corrected,
indicate that the State is incapable of managing the hazardous
waste program. In applying this second set of criteria, it is
not appropriate to make trade-offs between positive and negative
aspects of the overall program. If any of these unacceptable
conditions exist, a negative assessment of capability is
warranted.
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12
Conditions described by the Criteria for- Identifying
Unacceptable State Capability, if allowed to exist beyond the
short term (i.e., 3 years), clearly are unacceptable and will
result in an unfavorable assessment of capability by the Region.
In applying Lnese criteria, there is an assumption that the
problem has existed for some time with no trends that the State
is resolving the problem, EPA has attempted to assist the State
in correcting the problem, the State has had ample opportunity to
correct the problem, and yet the problem remains unresolved.
Such conditions could also form the basis for program withdrawal,
pursuant to §271.22.
IV. Documentation of Authorization Decision Based on Capability
The capability assessment must support the decision to
authorize, to deny or uelay authorization, to grant interim
authorization, or to withdraw authorization. The decision to
authorize a State must be properly documented and supported by
the results of on-going Regional oversight reviews. Minimal new
supporting documentation will be required, provided that results
of periodic Regional reviews are well-documented and support the
capability assessment decision.
Documentation can follow the format of the April 8, 1987
HSWA Capability Assessment Checklist. Although not required for
documenting capability, the checklist can serve as a guide for
organizing the results .of a series of periodic reviews of the
State's performance. Regional staff may want to use the
checklist to structure the capability assessment documentation,
and may add narrative discussion on State capability as
appropriate, rather than completing every line by checking a box
on the checklist. Although the checklist is no longer required,
the general policy regarding capability stated in the April 8,
1987 memorandum is still in effect.
The following describes the preparation of sufficient
documentation of the Region's final assessment of State
capability to support its authorization decision, and includes:
I. A short narrative of the State's capabilities, in light of
the Criteria for Acceptable/Unacceptable State Capability
described above.
Reference can be made to reports or memos prepared to
describe results of mid-year or end-of-year reviews, or
other documents prepared in the normal course of
Regional oversight of the State.
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Where a decision is made to deny or delay authorization
due to the Region's concern over State capability, the
weakness or deficiency in the State's program should be
clearly stated, along with a discussion of what type of
improvement would be necessary for authorization
.. . . -. approval.
Where a detailed State Authorization Corrective Action
Plan (CAP) is prepared, the documentation should refer
to and summarize the activities and milestones agreed
to by the State.
When the Region decides to grant interim authorization
to the State, the documentation should include
-milestones and schedules for achieving final
authorization.
II. A brief memorandum, signed by the Region's RCRA Division
Director, stating the final authorization decision. The
memorandum should also state that the decision was based
upon a thorough, comprehensive review process, and that all
significant aspects of the State's program were reviewed
against the criteria contained in this guidance.
In performing a capability assessment, the Regional Office
may determine that the State is not only incapable of
implementing new program authority, but also is incapable of
implementing the existing program for which it is currently
authorized. If the Region decides to withdraw a State's program
due to a capability assessment, the documentation should include
a description of the deficiencies in the State's program, and why
these deficiencies are serious and not likely to be corrected in
the foreseeable future. The Region should also describe how it
has assisted the State in attempting to correct its deficiencies.
20 a;;"
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