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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
2 5 1986
.vASTE
MEMORANDUM
SUBJECT: Guidance on RCRA State Program Reversion
FROM: Jack W. McGraw OAiuyrs ^I^TcLWiO
Acting Assistant Administrator
TO: Regional Administrators
Regions I-X
Attached for your use is the Guidance on Reversion of
State RCRA Programs. As you know, last year we produced a
draft of this document which was issued to the Regions and
States and reviewed by a task force. The Regions and Head-
quarters were well represented at the task force meeting;
Sue Moreland of ASTSWMO attended on behalf of the States.
The Guidance was shelved because of the one-year extension
for interim authorization provided by the Amendments.
However, as the new expiration date (Jan. 31, 1986) is
approaching, we resumed work on the Guidance. This final
document has been revised to reflect the comments of the
task force received last year and the requirements of the
Hazardous and Solid waste Amendments of 1984.
Among the issues addressed in the Guidance are reporting,
financial responsibility, permitting and enforcement. The docu-
ment also contains a checklist of RCRA activities to be used in
dividing responsibilities between EPA and the States, a model
Memorandum of Understanding, and a sample form letter to the'
regulated community.
On March 22 I sent you a memo which discussed the
reversion of State programs and suggested that you
consider how to provide for a smooth transfer of program
responsibility to EPA from those States not expected to
receive final authorization by January 31, 1986. Now
that the guidance document is available for your use, I
am asking you to develop transition plans which take
into account the full realm of Federal activities, and
specify the distribution of responsibilities between EPA
and the States. The FY 1986 grant work programs must
reflect the transition of program responsibilities to
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EPA and provide for the active and fuli involvement of the
States to the greatest extent possible. The strategies need
not be provided to Headquarters as a formal document but
should be negotiated by the end of August in order to be
useful in developing the grant work plans.
If you have any questions regarding this document,
please call Truett DeGeare, Chief, State Programs Branch,
at FTS 332-2210.
Attachment
cc: Hazardous waste Division Directors,. Regions I-X
Hazardous Waste Branch Chiefs, Regions I-X
Hazardous Waste RCRA Attorneys, Regions I-.X
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GUIDANCE ON REVERSION OF
STATE RCRA PROGRAMS
June, 1985
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Guidance on Reversion of State Programs
Introduction
I. Negotiating Reversion Agreements
II. Reversion Issues
III. Announcing Reversions
Attachments:
A - Checklist of Activities
B - Model Memorandum of Understanding
C - Form Letter to Regulated Community
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Introduction
Section 3006 of the Resource Conservation and Recovery
.Act (-RCRA) allows the Environmental Protection Agency (EPA)
to authorize States to operate State hazardous waste manage-
ment programs in lieu of the Federal program. Under §3006(c)
of RCRA, the Agency has the authority to grant interim
authorization to. State. programs that are "substantially
equivalent" to the Federal program. Under §3006(b) of RCRA,
EPA grants final authorization to State hazardous waste pro-
grams tha.t: (1) are equivalent to the Federal hazardous waste
program; (2) are consistent with- the Federal program and other
State programs which have received final authorization; and
(3) provide adequate enforcement.
Section 3006(c) of RCRA (as revised by the Hazardous and
Solid Waste Amendments of 1984) provides that interim authori-
zation expires on January 31, 1986. Therefore, if a State
which has received interim authorization does not receive final
authorization by January 31, 1986, the program will revert to
the Federal government until such time as the State obtains
final authorization. EPA may not extend this deadline
administratively.
;.v Section 3006(g)(.2) of HSWA .states that interim authorization
.may be obtained to carry out requirements of HSWA for which the
State's existing program contains (or has been amended to include!
a requirement .substantially equivalent to the "new" Federal
requirement. Th.e "new" interim authorization may have a
different expiration date (to be established by rule) than the
"old" interim authorization. However, if a State
having "old" interim authorization has obtained "new" interim
authorization for some parts of the Federal program, and the
State's program reverts on January 31, 1986, the entire program
will revert.
This document covers the issues to be considered when
planning for a smooth transition of authority from an interim
authorized State to EPA. Various documents will be used to
divide responsibilities between the Federal government and the
State once a State program has reverted. Development or modifi-
cation of these documents is discussed. A model form letter is
attached which should be used to notify the regulated community
of the impending changes due to reversion.
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-' I ..• Negot ia't ing^ Reversion Agreements
- A State seeking authorization nay enter into an agreenert •
with.EPA to participate in implementing the Federal program.
This agreement need not be in the form of a separate document,
but may be defined by the documents conventionally used by the
Region and-State in their grant negotiations. This includes the
grant work program, the EPA-State Enforcement Agreement and the
Memorandum of Understanding. These agreements may be combined
with agreements under S3006(c)(3> for State participation
in implementing HSWA.
A. The Cooperative Agreement
In negotiating the FY 1986 S3011 Cooperative Agreements
(grants) with the States, the Regions will need to address the
activities which must he covered under the Federal program and
how to divide responsibilities for administering and enforcing
the RCPA program.during the period when a State's program has
reverted to EPA. A checklist provided in Attachment A lists
activities which must be covered under the Federal program.
These activiti.es include the HSWA program as well as the pre-
HSWA program. Mote that some activities may only be undertaken
by the Federal government; e.g., the actual issuance of a
RCRA permit, while the Regions and States may adapt this
model to accommodate the particular circumstances in each
State,. activities identified as EPA-only must be reserved
for .EPA.
the Regions must determine that States have the requisite
legal authority to carry out the tasks identified in the
Cooperative Agreement to implement the Federal program.
In the event that a State does not have sufficient authority
to conduct compliance monitoring activities (enter, inspect,
collect samples, etc.), the Regional Administrator may,
pursuant to Delegation 8-8 and S3007(a) of RCRA, designate
State personnel as representatives of EPA for the purpose of'
performing inspections. The designation must be in writing
and shall name the State inspectors identified as EPA's repre-
sentatives and specify the duties they will carry out for the
Agency.
B. Memorandum of Understanding
The Memorandum of Understanding (MOU) sets forth the
relevant substantive and procedural responsibilities of the
parties, which are not included in the Annual Work Program.
When reversion occurs, the authorities under which the State
operated during interim authorization are withdrawn. A
Memorandum of Understanding may be used to identify the
basic responsibilities of the Federal government and the
State to the extent that they are not in the Annual Work
Plan. Attachment B is a model MOU.
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C. EPA-State Enforcement Agreements
The State-Federal Enforcement Agreements cover the
following aspects of EPA's compliance and enforcement program:
oversight criteria and measures; oversight procedures and
protocols; criteria for direct EPA enforcement; procedures for
advance notification and consultation; and reporting require-
ments. The agreement need not be a separate document as long
as the areas described above are addressed in the Cooperative
Agreement or the Memorandum of Understanding. Enforcement
Agreements, whether separate documents or incorporated into
Cooperative Agreements or Memoranda "of Understanding, should.
be modified to reflect the State-Federal division of responsi-
bilities created by reversion of the State program to EPA.
II. Reversion Issues
Below are a number of issues to consider in developing the
various documents which support or are part of your Cooperative
Agreement.
A. Short Term vs. Long Term Reversions
In planning for reversion, a Region must consider whether a
State's reversion will be short or long term in order to know the
extent to which the Region-must be prepared to administer various
aspects of the RCRA program.
While the authority to administer the program will revert to
EPA for all interim authorized States which do not receive final
authorization by the January 31, 1986, deadline, in cases where
the State is expected to regain authorization quickly it may
not be practical or possible to make all the operating changes
necessary to implement the reversion of authority. It is, there-
fore, appropriate to distinguish between such States and States
whose reversions will be 'of longer duration. We have determined
that short term reversions are those that will be 90 days or
less, i.e., those States that will obtain final authorization by
April 30, 1986. This distinction will be made only as a necessary
administrative tool for EPA and the State; EPA still retains
legal responsibility for the RCRA program until the State obtains
final authorization.
For short-term reversions where the Region has received and
reviewed a State's official application for final authorization,
the Memorandum of Agreement, which is a part of the official
application, may be modified to cover temporarily the basic
responsibilities of EPA and the State during the time of reversion,
In such cases, the Region must be optimistic about the State's
chances for being authorized within 90 days of reversion. It is
preferred that a tentative determination on the State's program
already have been made.
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In ordering priorities, the Regions should place a lower
priority on making operating changes in States whose reversions
are expected -to be short term than on those expected to oe long
term. Some of the changes which may be difficult to make during
a short period of reversion are financial instruments, the scope
and frequency of handler reporting and the responsibility for
issuance of permits.
If a short term reversion is anticipated early enough, the
Cooperative Agreement can be planned such that it deals with the
short term reversion. Appropriate terms, conditions and tasks
can be incorporated into the grant which cover the time during
which the State program will have reverted, but which will be
inoperative if the reversion does not occur.
8. Reporting
The regulations require that reports be sent to EPA once
the State program has reverted. It is administratively
cumbersome and very confusing, however, for the regulated
community to send reports to EPA in States that are expected
to revert for less than 90 days. This is particularly true
where States will be reviewing the reports under a Cooperative
Agreement. Therefore, -=:PA should allow and encourage the
reports to continue going directly to those States even after
reversion. Hazardous waste handlers in States where programs
revert for more than 90 days will be required to send the reports
to EPA. In those.States, EPA may take enforcement action against
facilities not sending reports in at all or sending them only
to the State. Letters will be sent by the Region and/or State
explaining this to the. regulated community. (See Attachment.E).
C. Financial Responsibility
Section 265.149 allows owners or operators to use State-
required financial mechanisms in lieu of the Federal financial
mechanisms required by §§265,143, .145, and .147, if the Regional
Administrator has determined that the State and Federal mechanisms
are equivalent. The Regional Administrator will review the
State's financial mechanisms and make a determination of equiva-
lence based principally on two criteria: 1) certainty of availa-
bility of funds/ and 2) amount of funds that will be made available.
The Regional Administrator may also consider "other factors" as
he deems appropriate.
EPA will also accept non-Federal financial mechanisms (i.e.,
mechanisms other than those specified in the Subpart H require-
ments) in lieu of Federal mechanisms as long as the Regional
Administrator has determined that the particular State mechanism
is equivalent to the Federal mechanisms. EPA retains the right,
however, to be selective in accepting a State's financial mechanism.
In addition, EPA may later withdraw approval of a. State-required
financial mechanism on a case-by-case basis.
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When accepting State-required mechanisms, EPA will attempt
to minimize the owner's or operator's involvement. Rather than
having each owner or operator make an ' individual request under
§265.149, EPA will allow the State, on behalf of its owners and
operators, to request that State-required mechanisms be used to
meet the Federal requirements. Where EPA grants such requests,
it will notify owners and operators, and will allow them to
change to a Federally required financial instrument if they
so desire.
In situations where EPA has accepted a State's financial
mechanism under §265.149 (i.e., where a State has received
interim authorization for the financial responsibility require-
ments or where EPA has made a finding of equivalence outside
of the authorization process) and where the State is the named
beneficiary on the financial instrument, EPA will allowthe
State to remain as the named beneficiary when reversion occurs.
EPA Regions must specify in the Memorandum of Understanding that
EPA can direct the State to draw on the financial instrument as
necessary to provide for adequate closure and post-closure care.
All owners or operators in States that do not have financial
requirements and those owners or operators who use financial
instruments which are not equivalent to the Federal mechanisms
will be immediately subject to the Federal requirements as of
the date of reversion. Problems may arise because some States
are in the process of promulgating their own financial require-
ments. States whose financial requirements do not currently meet
the equivalency criteria may still enact acceptable requirements
before reversion occurs. EPA will need to work with the State
agency-to avoid conflict in implementing two sets of requirements,
This will require advance planning and consultation with States
whose programs are expected to revert.
D. Permitting
Attachment A lists which permitting activities the States
may continue to perform and which EPA must handle. Where the
State had issued RCRA permits, those permits will remain in
effect as RCRA permits after the State program reverts. (See
preamble to the May 19, 1980, Federal Register, 45 FR 33395.)
In addition, other actions taken by an authorized State before
reversion which are in compliance with the Federal regulations
also remain in effect. If, prior to reversion, an authorized
State requested a permit application, that request is valid for
purposes of RCRA, and EPA can take over without having to call
in the application again. A State-issued draft permit is valid
as well, if the State followed procedures at least equivalent
to the Federal procedures in 40 CFR Part 124, and need not be
reissued by EPA.
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EPA will issue permits in States which have reverted,
whether for short or long term reversion. The Region should
work jointly with the State to ensure-that the State and EPA
will not have to duplicate work unnecessarily.
E. Enforcement
Reversion of the RCRA program does not affect the status of
State requirements under State law. Thus, EPA expects States to
continue to enforce their own programs. For the most part, State
and Federal requirements will be' similar or equivalent, and EPA
will not initiate Federal enforcement actions for these equivalent
requirements where a State is responding to violations of State
law with timely and appropriate enforcement'act ions. Therefore,
State-EPA Enforcement Agreements may be amended to include pro-
visions under which EPA will generally defer to'the State.
However, EPA does not waive its right to enforce the Federal
requirements. Where a State's enforcement actions are not timely
or appropriate, or a Federal requirement is not found in State
law, EPA will exercise the full range of its enforcement authori-
ties. After reversion, any violations cited in State inspection
reports must cite the Federal regulations for EPA to take
enforcement action. Therefore, inspection reports and warning
letters should cite both the Federal and State regulations which
have been violated.
III. Announcing Reversions
EPA Headquarters will issue two Federal Register notices.
The first will appear in September 1985, and will be a notice of
possible reversion. This notice will explain reversion and will
list all States which have interim authorization and have not yet
received final authorization. The purpose of this notice is to
alert hazardous waste handlers to the possibility that they may
soon be subject to two sets of hazardous waste regulations, State
and Federal. Since handlers in States whose programs revert will
become immediately subject to the Federal regulations on January 31,
they will need some time to find out what the new requirements will
be. The notice will direct them to the Federal regulations and,
presumably, will allow them adequate time to obtain a copy of the
regulations and start to become familiar with them.
The second notice will appear on or about January 31, 1986.
This notice will announce the actual reversion of the RCRA program
for those interim authorized States which did not receive final
authorization by January 31. The notice will identify those States.
Attachment C is a form letter which the Regions may use
to notify all handlers in States whose programs will be reverting.
These letters should be sent out before January 1, 1986. The
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letters should be sent to handlers in all States where the program
is expected to revert, regardless of the expected length oe'tn-
reversion. If a State's orogram does not revert which was exoectec
to, or vice versa, an additional letter may be necessary.
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ATTACHMENT A
CHECKLIST OF RCRA ACTIVITIES
Federal Program
Requ irement
PROGRAM ACTIVITy
Activities Reserved
for EPA
Activities Subject to
a c
I.EGAL .AUTHORJJl'y
Federal State
Citation Citation
COM:
I. Compliance Monitoring
A. Sampling and analysis
B. Non-notitier follow-up
Provide guidance on Collect samples and con-
procedures for collecting duct analysis in accor-
and analyzing samples
Establish procedures and
priorities for follow-up
activities and develop
list of non-not i f iers
Generator Inspections
and Report Reviews
1. Inspect for compliance
with manifest require-
ments
2. Inspect outgoing ship-
ments for compliance
with DOT standards
3. Inspect storage con-
tainers for DOT
packaging and proper
lataelling
4. Inspect for retention
of documents
Establish procedures
dance with RPA guidance
Assist EPA in developing
list; conduct investi-
gation
All
All
All
All
262.20-.23
262.30-.33
262.34
262.40-.42
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Federal Program
Requirement
__._ACTI VITY_
Activities Reserved
for EPA
Activities Subject to
_Stat e_Pajrt ic ipat ion
Lt'GAL AJJTHpRITY
Federal State COM I1
Citation Citation
5. Receive and review
biennial reports
from generators who
ship waste-oft site
6. Receive and review
exception reports
Request additional
reports
Receive and review
reports of inter-
national shipments
Receive reports and
screen tor confiden-
tiality
Receive reports and
screen tor confiden-
tiality
Request and receive
reports and screen for
confidentiality
Receive reports and
screen tor confiden-
tiality
Review reports
261.41
9. Notify State Depart- All
ment of undelivered
shipments
D. Transporter Inspections Establish procedures
and Manifest Reviews
1. Inspect transfer
facilities
2. Inspect for compliance
with manifest require-
ments
Review reports
Review reports
Review reports
All
All
262.42
262.43
262.50
263. 12
26 J.20-21
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Federal Program
Requirement
PROGRAM ACTIVITY _
Activities Reserved
for EPA
Activities Subject to
Part i(Ma t ion
- AtrniGKITy
Fede'raY " ""state
Citation Citation
COMf
3. Inspect for retention
of documents
4. Inspect for compliance
with DOT regulations
E. Interim Status Facility Establish procedures
Inspections* and Record
Reviews
1. Inspect for compliance
with General Facility
Standards
2. Inspect for compliance
with Preparedness and
Prevention standards
including adequacy of
Contingency Plan
3. Inspect for compliance
with manifest system
4. Inspect for compliance
with recordkeeping and
records retention
requ irements
All
All
All
All
All
All
263.22
263. 10
265. I 1-17
265
Subparts C
and D
265.71-.72
and .76
265.7J-.74
Mnspections of facilities owned or operated by a State, local or Federal government
must be conducted by t'PA (RCRA S$3007(c) and (d)). States may inspect those
facilities, however, State inspections do not satisfy the statutory requirement.
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Federal Program
Requirement
PROGRAM ACTIVIT*
Activities Reserved
tor EPA
Activities Subject to
-JLlLfLtfL Part i c ij> a t io_n
__L.KGAL AUTHOR1 TY
Federal State COM
Citation Citation
5. Receive and review
biennial reports
Receive reports
Review reports
265.75
6. Receive and review Receive reports
manifest discrepancy
and unmanifested
waste reports
7. Receive and review
reports of releases,
fires, and explosions
Receive reports
8. Inspect for compli-
ance with ground-water
monitoring requirements
Review reports
and follow-up
Review reports
All
265.12-. 76
265.56 and .77
265.yu-.94
9. Review ground-
water waivers
10. Review outlines of
alternate ground-
water monitoring
plans
11. Receive and process
notices that facil-
ity is affecting
ground water
Make decision on
adequacy
Make decision on
adequacy
Receive notices
Review and make
recommendat ions
Review arid make
recommendat ions
Follow-up
265.90
265.93
265.93
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Federal Program
Requirement
___ ACTIVIT¥ _
Activities Reserved
for EPA
Activities Subject to
State Part i<:ip_at i_qn
..LEGAL .AUTHOR 1 TV
FedeYa 1State COMMK
Citation Citation
12. Review alternate
ground-water
monitor reports
13. Receive and review
ground-water moni-
tor reports
14. Inspect installation
of double liners
15. Receive and process
closure plans
16. Inspect to assure
that facility is
closing in accor-
dance with approved
plan
17. Receive closure
certifications
18. Inspect to assure
closure has been
accomplished in
accordance with
the plan
19. Receive and process
post-closure plans
Make decision on
adequacy
Receive reports
Provide guidance
Receive plans, issue
notice, hold hearing
and make decision
All
Receive plans, issue
notice, hold hearing
and make decision
Review and make
recommendat ions
Review and make
recommendat ions
Perform inspection
Review plans and
make recommendations
All
265.90 and
.93
265.94
HCHA
$3015
265. I 12
265. I I I and
. 113-. 1 14
265. I 15
All
Review plans and make
recommendat ions
265. I 18
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Federal Program
Requirement
PROGRAM ACTIVITy
Activities Reserved
tor £PA
Activities Subject to
__St_ate Par^i_cipation
_JjF.GAL AUTHOR]TV
Federal '" State COMMh
Citation Citation
All
265.I 17
and .119-
. 120
20. Inspect to assure
that facility is
conducting post-
closure care in
accordance with
approved plan
21. Review closure cost
estimates
22. Review post-closure
cost estimates
23. Review financial
assurance instrument
for closure and
post-closure*
24. Review sudden and
non-sudden insurance
policies*
25. Receive and follow
up notices of cancel-
lation, non-renewal
and bankruptcy*
26. Review financial
instrument for
corrective action
*If State financial assurance regulations have been approved pursuant to §265.149, State
may perform all these activities.
Make decision on ade-
quacy
Make decision on ade-
quacy
Receive mechanisms and
make decisions on ade-
quacy
Receive policies and
make decision on ado-
quacy
Receive notices
Review estimates and
make recommendations
Review estimates and
make recommendations
Review mechanisms and
make recommendat ions
Review policies and
make recommendations
Follow up and make
recommendat ions
265.142
265.144
265. 143
and .145
265. 147
265.143,
.145 arid
. 14U
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Federal Program
Requirement
_AC'r^n/IT Y_
Activities Reserved
for EPA
Activities Subject to
>
LEGAL AUTHORITY \
Federal State COMMti
Citation Citation !
27. Inspect facilities
for compliance with
standards for:
0 containers
0 tanks
0 surface impoundments
0 waste piles
0 land treatment
0 landfills
0 incinerators
0 thermal treatment
0 chemical, physical
and biological
treatment
P. Permitted Facility
Inspections and
Record Reviews
1. Inspect to assure
that facility has
been constructed or
modified in accor-
dance with approved
plans specified by
permi t.
2. Inspect for com-
pliance with require-
ments specified in
pe rm i t, i nc1ud i ng
compliance schedules
Establish procedures
All
All
All
Al 1
All
All
All
All
All
All
All
Part 265
I
J
K
L
M
N
O
P
0
270. 3(J(a)
270.30(e)
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- 8 -
Federal Program
Requirement
-
Activties Reserved
tor EPA
Activities Subject to
_Stat_e Parti_cipati_qn
_LE_C;AL AUTHOR i TY
Federal State COMMI.
Citation Citation
3. Receive and review
reports and notices
required by permit
II. Enforcement
Receive reports
Establish procedures
and priorities and
develop guidance
Review reports
270.30 (J )
A. Identify and classify
violations
B. Initiate enforcement
actions
Make decision
Initiate action
make decision
and
Flag v iolat ions
recomuiendat ions
and make
In instances where State
enforcement authorities are
similar to those of the Fed-
eral program and the State
uses those authorities in a
timely and appropriate
manner, EPA may decide that
a particular State action is
sufficient. Otherwise, the
State may assist EPA by:
0 preparing case reports
0 recommending compliance
schedules for correction
of violations
0 assisting and participa-
ting in negotiations
0 recommending additional
act ions
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- y -
Federal Program
Requirement
PROGRAM ACT IVT Y
_
Activities Reserved
for EPA
Activities Subject to
Par tic i
I.fcGAL AUTHORITY i
Federal State COM Ml-:'
Citation Citation
C. Follow-up enforce-
ment actions to
assure compliance
III. Permitting
(incl. RO&D permits)
A. Interim Status
1. Receive and
review Part A
applicat ions
2. Mail interim
status notifi-
cation or
notices that
facility does
not qualify for
interim status
3. Receive and
process updated
Part A applica-
tions and requests
for changes during
interim status
4. Process with-
drawal requests
(i.e., t e on i -
nate interim
status per Part
124 procedures)
Set priorities and
schedules
Establish procedures and
priorities for permitting
Receive and screen for
confidentiality
All
Follow up
Review and make recommen- 270.10
dat ions and .13
270.10
Receive and screen
conf iderit ia 1 i ty
for
Review and make recommen- 270.10
dations and .72
Process withdrawal,
publish notice, hold
hearing if necessary,
make decision
Assist RPA in all activi-
t ies
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- 10 -
Federal Program
Requirement
PROGRAM Acnvrry
Activities Reserved
for EPA
Activiti-es Subject to
S t a te Pa rt ic ia tion
Lb'GAL AUTHOR I'J'V
Federal State COMM
Citation Citation
B. Permit Processing
1. Prioritize Part
B requests
2. Request Part B
applicat ions.
Develop procedures and
prioritize
Request Part B's
Recommend priorities 270.10
Draft request for Part 270.10
B's based on priorities;
joint requests may be
made
3. Conduct permit
writer inspec-
tion/site visit
4. Receive Part B
applications
5. Conduct complete-
ness review
All
All
Make decision and send
NOD
Review arid make recoin-
mendat ions
270. JO
270. 10
.14-21 and
124. 3
6. Conduct technical
review
Outline parameters for
rev iew
Review using KPA para-
meters, make recommen-
dation
7. Review exposure
information
8. Request health
assessment from
ATSDR
Outline parameters for
rev iew
Make decision and send
request
Review using EPA para-
meters and recommend
permit conditions
Make recommendation
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- 11 -
Federal Program
Requirement
PROGRAM ACTIVITY
Activities Reserved
for EPA
Activities Subject to
State Participat ion
__
Federal State COMM
Citation Citation
9. Set conditions for
permits on a case-
by-case basis
10. Prepare draft per-
mit or intent to
deny
11. Prepare Statement
of Basis or Fact
Sheet
Make decision
Prepare document
Prepare document
Make recommendations and 270.32
provide assistance
Make recommendations and 124.6
provide assistance
Make recommendations and 124.7
provide assistance ' and 8
12. Prepare administra-
tive record
13. Public notice for
draft permit and
intent to deny
Compile record
Prepare notice and
circulate as required
Submit documents and
required information
124.9
Assist in preparation of 124.10
notice; if State require-
ments aire similar to EPA's
joint public notices may
be circulated
14. Receive public
comments
15. Hold public hear-
ing (if nece;;:;ary)
Receive comments
Hold hearing
Review and make recominen- 124.11
dations
Assist EPA; if State has 124.12
similar requirements,
joint hearings may be
held
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- 12 -
Federal Program
Requirement
PROGRAM
Activities
for EPA
ACjrryrry
Reserved
Activities Subject to
> ta t e Par ti c
LEGAL AUTHORITY
Federal State
Citation Citation
COM MB
16. Review hearing
records and all
public comments
and determine if
substantial new
issues are raised
17. If substantial
issues are found,
take one of the
following actions:
0 prepare a new
draft permit;
0 prepare a revised
statement of ba-
sis or fact sheet;
or
0 reopen or extend
public comment
period.
18. Prepare and issue
final permit or
final denial of
pe rm i t
19. Issue a response
to comments
Make determination
Make decision; reopen
or extend comment
period if that is
decision
Issue permit or denial
EPA issues formal
response
Review records, make rec- 124.11
ommendat ions
Assist in preparation;
make recommendations
Assist EPA in prepara-
tion, make recommenda-
tions on substance on
permit
Assist in drafting the
response
124.Ib
124.17
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- 13 -
Federal Program
Requirement
PROGRAM ACTIVITY
Activities Reserved
tor EPA
Activities Subject to
t.e__Pa£tJ_c i_p_at i_on
L _AU.T!1P.K. \ Ty.
Federal sYate COMMl
Citation Citation
20. Submit final per-
mit and relevant
information to the
administrative
records
21. Take actions as a
result of appeals
(§124.19)
22. Additional Activities
a. Changes or modi-
fications in
permits
b. Permit exten-
sions
c. Transfer of
permits
d. Issue emergency
permits
e. Continuation of
permits expir-
ing
f. Terminate per- .
mit
Compile administrative
record
All
Make decision; take
act ion
Make decision; take
act ion
Make decision; take
act ion
Make decision; take
action
Make decision; take
action
Make decision; take
action
Submit documents and
required information
124. 1H
Assist EPA in prepara-
tion; make recommend-
at ions
Make recommendations
Make recommendations
124.19
270.41 and
.42 and
124. 5
270.50
270.40
Make recommendations and 270.61
draft emergency permits
Make recommendations
Make recominendat ions
270.51
270.43
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- 14 -
Federal Program
Requirement
_ ._.__V rrv
Activities Reserved
for EPA
Activities Subject to
PjirJ^ic ij>at L°_n
I.EGAL AUTHORITY
Federal state COMM
Citation Citation
y. Review waiver
requests
IV. Other Activities
A. Assign EPA ID
numbers
B. Implement ADP
system
Provide parameters
tor review; make
decision
Make assignments
Review using KPA para-
meters; make recommend-
at ion
RCRA
( o ) & ( p ) ,
30uS( j),
JO I 5.
70JO(b)
Notity EPA of. new not if i-
ers who contact State
Establish methods and Enter data into system
guidance; produce reports
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ATTACHMENT 3
MEMORANDUM OF UNDERSTANDING BETWEEN
THE U.S. ENVIRONMENTAL PROTECTION AGENCY, REGION
AND THE STATE [COMMONWEALTH/TERRITORY]
OF
Relating to the cooperative administration of the laws enacted
by the United States of America under Subtitle C of the Resource
Conservation and Recovery Act of 1976, as amended (Public Law
98-616, 42 USC 6901 et_. s_ec. (hereafter "RCRA" or "the Act")
and the laws of the State of [Add, if appropriate, specific
statutory citations] to protect human health and the environment
by regulating the generation, transportation, treatment, storage-,
and disposal of hazardous wastes.
I. Preamble
The Regional Administrator, U.S. Environmental Protection Agency,
Region (hereafter "EPA" or "Regional Administrator") and
the Director(s) [or o-ther title(s) as appropriate] of [State
Agencyt ies)], designated as the lead agency for the State,
(hereafter-"Director(s)" or "the State") enter into this Memoran-
dum of Understanding (hereafter "MOU"). The purpose of this MOU
is to implement as effectively as possible EPA's responsibility
under RCRA through the cooperative efforts of EPA and the State.
This MOU will assure efficient allocation and use of public funds
and will minimize duplication of effort.
II. Authority and Responsibility
EPA has the authority to enter into- this MOU pursuant to Section
3011 of RCRA for the purpose of funding elements of the hazardous
waste management program under RCRA. Because the State has not
yet received final authorization but anticipates receiving final
authorization of its program by [include date!, this MOU is
entered into between EPA and the State. The Agreement between
EPA and the State consists of this Memorandum of Understanding
and the Cooperative Agreement negotiated between EPA and the
State pursuant to Section 3011 of RCRA.
The State of conducts a hazardous waste
management program which is similar to the Federal hazardous
waste management program under Subtitle C of RCRA. In addition,
the State has applied [intends to apply] for authorization of
its program under Section 3006(b) of RCRA and in accordance
with 40 CFR Part 271, Subparf A.
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The Federal hazardous waste management program is in effect in
[name of State] and will remain 'in effect unless and until the
State receives final authorization of Its hazardous waste
management program.
It is understood that EPA retains full and ultimate responsi-
bility for-the administration and enforcement of the Federal
hazardous waste management program in [name of State] and that
nothing in this MOU or the Cooperative Agreement shall be
construed to limit EPA's authority under RCRA. It is further
understood that the State's participation in this MOU is intended
to maximize the expeditious and efficient implementation
of RCRA and to speed the State's receipt of authorization.
The Director(s) shall administer those portions of the Federal
hazardous waste management program identified in the grant work
program consistent with the provisions of other agreements, RCRA,
current Federal policies and regulations, and any separate work-
ing agreements which shall be entered into with the Regional
Administrator as necessary or desirable for the full adminis- •
tration and enforcement of the Federal program.
Ill. EPA Overview of State Activities
EPA shall oversee and evaluate the State's performance of func-
tions described in this MOU on a continuing basis to assure that
such performance is consistent with this MOU and all applicable
requirements embodied in current Federal policies, regulations,
and laws. This evaluation generally will be accomplished through
the following activities:
1. EPA review of all reports and submissions required by
this MOU and the Cooperative Agreement, applicable Federal
policies, regulations and laws.
2. EPA on-site review of State performance in accordance
with schedules established for [annual, midyear, etc.] program
evaluations with commitments made in the annual grant work
program, and with performance expectations outlined in the
"Interim National Criteria for a Quality RCRA Program" of
May 15, 1984. EPA reserves the right to conduct unannounced
site visits- to review performance of State activities.
3. Consideration of comments concerning the State's
performance received from the regulated community, the public
and Federal and local agencies. Any such comments considered
by the Regional Administrator will be brought to the attention
of the Director if the commenting party has not previously
communicated such to the State.
The Regional Administrator may request and the Director(s) shall
submit information and provide access to all files necessary for
oversight and evaluation of the State's performance of functions
described in this MOU.
-------
EPA reserves the right to ask for and review information sub-
mitted to the State which is claimed to be confidential by the
submitter under State law. EPA will preserve the claim of
confidentiality in accordance with procedures established at
40 CFR Part 2.
If, in the judgment of the Regional Administrator, any perform-
ance of functions is inconsistent with this MOU or current
Federal policies, regulations, or laws, he/she shall notify
the State and may take any actions specified in 40 CFR §35.150.
IV. State Notification of Program Changes
As soon as the Director has information concerning any
substantial proposed or pending amendment, recision, or repeal
of any pertinent statute, regulation, directive, significant
judicial decision or form, any of which the Director has submit-
ted to the Regional Administrator or agreed to make use of in
connection with this MOU, the Director shall notify the
Regional Administrator and transmit the text of any such change
to the Regional Administrator. Within 30 days the Regional
Administrator shall determine whether the proposed change would
restrict the authority of the State to perform in accordance
with this MOU. Such change may be cause for termination,
according to 40 CFR §30.920, et. seq., of the Cooperative
Agreement negotiated pursuant to this MOU.
If an amendment, recision, or repeal of any statute, regulation,
directive, form, or any significant judicial decision described
in the proceeding paragraph shall occur for any reason including
action by the [name of State] legislature or State court, the
Director will, within 10 days of such event, notify the Regional
Administrator and will transmit a copy of such revision to the
Regional Administrator.
V. Financial Assurance Responsibilities [Optional]
EPA has reviewed the State's hazardous waste regulations
for equivalence with the Federal requirements for financial
assurance of closure, post-closure care, and liability coverage.
The .Regional Administrator will accept an owner's or operator's
use of [liafr the specific sections of the State's requirements]
of the State's hazardous waste regulations in lieu of the
Federal financial requirements of 40 CFR SS265.143, .145,
and .147, pursuant to $265.149.
The Regional Administrator reserves the right to later withdraw
approval of a State mechanism on a case-by-case basis.
[This section may also require the State Director to obtain
concurrences from the Regidnal Administrator for certain actions
such as making reimbursements from a financial instrument or
allowing a variance.]
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To ensure the availability of funds for closure and/or post-
closure care, the Regional Administrator shall direct the State
to execute the provisions of the financial assurance mechanism
and draw on the financial instrument when the Regional
Administrator has determined that the State has not taken
appropriate actions in a timely manner.
VI.
This Section is for any other provisions appropriate to the
MOU rather than other elements of the Cooperative Agreement.
Likely subjects might be, for example:
1. EPA oversight of State inspections and permit
activities;
2. State participation in EPA enforcement activities;
3. Procedures for State transfer to EPA of confidential
information; and . .
4. State submission of results of inspections, report
reviews, etc.
VII. Effective Date
Unless otherwise stipulated, this MOU and any subsequent
modifications will take effect immediately upon being signed by
the Director(s) and the Regional Administrator.
VIII. Amendments
This MOU may be amended or modified by mutual written
agreement signed by both the Director(s) and the Regional
Administrator.
IX. Termination
This MOU will terminate when the State receives
authorization according to the provisions of 40 CFR Part 271,
Subpart A. It may also terminate at any time in accordance
with 40 CPR 530.903, ejt seq.
State Director Regional Administrator
Date Date
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ATTACHMENT C
Dear :
This letter is to inform you that as of January 31, 1936,
authority for administering the hazardous waste program under
the Resource Conservation and Recovery Act (RCRA) of 1976, in
the State of is expected to revert to the
U.S. Environmental Protection Agency (EPA). RCRA provides that
any State with interim authorization which does not receive
final authorization by. January 31, 1986, will automatically
lose such authorization on that date. [State] received interim
authorization on [date(s)l but has not yet received final
authorization. Therefore, its authority to administer the RCRA
hazardous waste program may revert to the Federal government on
January 31, 1986.
Reversion of the State program will mean that, as of
January 31, 1986, you are immediately subject to and must
comply with all applicable Federal hazardous waste requirements
found in Title 40 of the Code of Federal Regulations, Parts 124,
260-265, and 270. Copies of the Code of Federal Regulation are
available for sale in two volumes (Parts 100 to 149 and Parts
190 to 399) from the Superintendent of Documents, U.S. Govern-
ment Printing Office, Washington D.C. 20402.
You will remain subject to the Federal regulations until
[State] receives final authorization. Reversion does, not mean
that you- are no longer subject to [State's] hazardous waste
requirements. These requirements continue in force, unchanged,
under State law. RCRA permits issued by the State while it
was authorized remain in effect even after reversion..
[State] has entered into an agreement with EPA which
outlines which activities will be handled by the Federal
government, and which by the State. Attached is an information
sheet specifying the reporting requirements for the program
during the period of reversion.
[Add note on State-specific tailoring, if needed.]
You should familiarize yourself with the Federal
regulations in order to understand what, if anything, you
will have to do differently in order to comply with the
Federal requirements. Questions regarding reversion and
the effect on your operations should be directed to: (State
contact name, address and telephone number] or the RCRA
Hotline, toll-free at (800) 424-9346, or in Washington, D.C.,
at 382-3000.
Sincerely,
Regional Administrator
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ATTACHMENT
Reporting, Requirements During Program Reversion
Note; Some items in this list may no.t apoly in some States; in
other States, items may have to be added" to the list.
Federal/State Reporting Requirements for (State )
Hazardous Waste Generators, Transporters, and Treatment, Storage
and Disposal Facility Owners/Operators.
Biennial Reports: Biennial reports (40 CFR §262.41) are to be
submitted to by [Date] .
Changes During Interim Status; (State) TSD facilities
with Federal interim status remain under Federal jurisdiction.
For changes specified in 40 CFR §270.72, owners or operators of
facilities with interim status must submit a revised Part A
permit application to .
Closure Plans, Post-Closure Plans, Notification of Closure; Tne
owner/operator of a TSD facility must submit closure and post-
closure plans and notification of closure to .
Contingency Plan Incident Report; All applicable contingency
plan incident reports required by 40 CFR §265.56-and 40 CFR
§264.56 must be submitted to .
De 1 i s t i ng Petitions; Any person seeking to exclude any hazard-
ous waste regulated under the (State) hazardous waste
rules and U.S. EPA regulations must submitthe petition to the
Office of Solid Waste, U.S. EPA; 401 M Street, S.W., Washington,
D.C. 20460. The person must also request an exclusion from
(State agency) to del-ist the waste and facility under
(citation to State rule). [May vary by State.]
Financial Responsibility; Financial responsibility instruments
are to be submitted to _. (Those owners/ .
operators who submitted financial responsibility instruments to
EPA or the State prior to January 31, 1986, will not be required
to submit anything additional to EPA.)
Groundwater Monitoring Data; All groundwater monitoring data
reporting required in 40 CFR §265.94, 40 CFR §§264.222 and 252,
40 CFR $264.278, 40 CFR §264.309 and 40 CFR §§264.90 - 264.99
must be submitted to . (All ground-water monitoring
data reporting required in (citation to State rules) must be submitted
to (State agency).
Hazardous Waste Spills; Transporters are required by 40 CFR
§263.30 to notify the Office of Hazardous Materials Regulations,
Materials Transportation Bureau, United States Department of
Transportation, Washington, D.C. 20490, in the event of a dis-
charge of hazardous waste during transport and ._.
[May vary by State.]
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International Shipments; Any person who. exports hazardous
wastes to a foreign country or imports hazardous wastes from
a foreign country must continue to notify the U.S. SPA (and
the (State agency) ) of its intent prior to shiome.it. See
40 CFR §262.50.
Manifest Exception and Discrepancy and Unma.iifested Waste Reports
Manifest exception, discrepancy reports and u.unani fested waste
reports are to be submitted to . [Include here any
State-required manifesting procedures and addresses.] See 40
CFR §§262.42 (Exception reporting), 264.72 (Manifest discrepan-
cies) and 264.76 (Unmanifested waste report).
Notification; Any person required to notify under Section 3010
of the Resource Conservation and Recovery Act of 1976, as
amended must notify U.S. EPA. (Any person required to notify
under (State rules) must notify (State agency).)
Permits; All correspondence regarding Federal Part B permit
applications must be submitted to the U.S. EPA Regional Office
All correspondence regarding State permit applications must be
submitted to (State Agency).
U.S. EPA Identification Numbers; The U.S. EPA has sole author-
ity to issue U.S. EPA identification numbers. To obtain an
I.D. number, phone .
Withdrawal; Any generator, transporter or TSD owner/operator
who wishes to withdraw from the system must concurrently notify
•
ADDRESSES
U.S. EPA, Region
(State agency)
**Note: In addition, there may be other State and local
requirements which must be met.
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