UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
UK 221966
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
OSWER DIRECTIVE 19541.00-1
MEMORANDUM
SUBJECT: Effect on State Authorization of HSWA
Section 3006(f): Availability of Information
FROM: J. Winston Porter ^_
Assistant Administratdr
TO: Addressees
Section 3006(f) of the Hazardous and Solid Waste Amendments
of 1984 (HSWA or the Amendments) provides that:
No State program may be authorized by the
Administrator under this section unless
(1) such program provides for the public
availability of information obtained by
the State regarding facilities and sites
for treatment, storage and disposal of
hazardous waste; and (2) such information
is available to the public in substantially
the same manner, and to the same degree,
as would be the case if the Administrator
was carrying out the provisions of this
subtitle in such State.
This statutory requirement was incorporated into EPA's State
authorization regulation by the RCRA Codification Rule, 50 FR
28754 (July 15, 1985), 40 CFR §271.17(c).
This document expands on the discussion of Section 3006(f)
in the preamble to the RCRA Codification Rule and explains
how EPA intends to determine whether States have satisfied the
Section 3006(f) standards.
EPA regards Section 3006 (f) as the cornerstone of a
meaningful public participation program. As such, States must
be aware that noncompliance with these provisions will be
regarded as grounds for denial or withdrawal of authorization.
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OSWER DIRECTIVE #9541.00-1
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Demonstrating Compliance with §3006(f)
This provision requires that States provide for public
availability of information regarding facilities and sites for
the treatment, storage and disposal of hazardous waste in
accordance with two standards:
0 information must be made available to .the public
"in substantially the same manner" as EPA makes
information available; and
* information must be made available to the public "to
the same degree" as EPA makes information available.
EPA has interpreted the first standard to refer to the
procedures used by EPA employees in disclosing or withholding
information under the Freedom of Information Act (FOIA). Because
the phrase "in substantially the same manner" (emphasis 'added)
is used in the first standard, EPA believes that a certain amount
of flexibility is allowable in comparing the State and Federal
programs. In order to allow this flexibility, EPA has set forth
procedures derived from EPA's public information regulations and
from existing policies and procedures followed by EPA in handling
public information requests.
EPA's regulations implementing FOIA and Section §3007(b) of
RCRA and those governing the treatment of confidential business
information are set forth at 40 CFR Part 2, Subparts A and B,
and 40 CFR §§260.2 and 270.12. (Note that some parts of 40 CFR
Part 2, Subparts A and B were amended on December 18, 1985,
50 FR 51654, effective January 17, 1986.)
Although the guidance cites specific Part 2 regulations, the
State need not adopt the entire cited provision. The Agency has
reviewed its public information regulations and extracted basic
procedural requirements in order to ensure compliance with
§3006(f). Various Part 2 provisions were excluded from the
guidance because the provisions are minor, pertain only to EPA
or do not directly affect the availability of information to the
public. The State need only adopt the procedural requirements
summarized below to satisfy the first standard in §3006(f).
EPA has interpreted the second standard to refer to the
type and quantity of information available under FOIA. Since
the word "substantially" is not used in the second standard, EPA
interprets this to mean there is less flexibility, and that the
same information EPA makes available must be made available by a
State. The Agency sets forth below substantive requirements
concerning the information made available by EPA. These require-
ments are based on the FOIA and are embodied in the Part 2
regulations.
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OSWER DIRECTIVE #9541.00-1
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The FOIA and EPA's regulations do not, by themselves, ensure
that the same documents that would be made available by EPA would
be made available by the State. Therefore, in addition to the
principles set forth below, this guidance provides lists of docu-
ments that EPA would generally release to the public under §3007
of RCRA. The information relates to permitting, compliance and
enforcement, and includes information gathered under RCRA §3007(a)
(or a State analog). See 50 FR 28730 and 28753 (July 15, 1985).
As part of its authorization application, the Attorney General of
a State would be required to certify that the State's statutes,
regulations and relevant case law" would provide for release of the
same information that would be released by EPA.
The remainder of the guidance has four parts. The first
part lists the procedures which States must adopt or agree to
implement. The second part states the substantive requirements
which the State must agree to adopt and to which the Attorney
General must certify. The third part contains a discussion of the
requirements a State must adopt to protect requestors if it has a
program to protect confidential business information. The fourth
part discusses oversight of this portion of the State program.
1. Requests for Information - Procedural Requirements
The procedural requirements are expressed in terms of 11
principles which a State must adopt or agree to. In many cases,
these principles must be embodied in statutes and/or regulations.
In the authorization application, the Attorney General must certify
chat any State statutes, regulations and relevant State law cited
provide the requisite authority. For certain of the procedural
requirements, States may use a Memorandum of Agreement (MOA) between
the State and EPA. In any instance where an MOA is used the State
must agree to follow the specified procedures and the Attorney
General must certify that the State has the authority to enter
into and carry out the MOA provision and that no State statute
(such as a State administrative procedures act) requires notice
and comment or promulgation of regulations for the MOA procedures
to be binding. In addition, the State must agree to make the MOA
procedures publicly available and to include them as appropriate
in correspondence with the public. We have indicated, below,
which principles may be incorporated in the State program through
an MOA rather than by statute or regulation (assuming the Attorney
General can maKe the required certification).
0 The scope of records subject to State requests must be at
least as broad as the scope of records as defined by EPA
(Statute/Regulation). (See 40 CFR §2.100(b).)
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OSWER DIRECTIVE #9541.00-1
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As required under the Federal FOIA, 5 U.S.C. 552(a)(2),
certain materials must be routinely available without a
formal FOIA request (such as in a public reading room).
Examples of these materials are final opinions or orders in
case adjudications, State regulations, statements of Agency
policy, and administrative staff manuals affecting the public.
In addition, records prepared for routine public distribution
must also be made available. Examples of -such records are
press releases, copies of speeches, pamphlets, and educational
materials (MOA). (See 40 CFR §2.104(b).)
The State Agency will make reasonable efforts to assist a
requestor in identifying records being sought, and helping
the requestor formulate his or her request (MOA). (See 40 CFR
§2.109(b).)
The State Agency must respond to a request within 20 days
after it is received. Failure to do so constitutes final
Agency action which authorizes the requestor to seek appropri-
ate administrative review, if available, or judicial review
(Statute/Regulation). (See 40 CFR §2.112.)
If the request is denied, the requestor must be provided the
basis for the denial and notified of State judicial or adminis-
trative appeal procedures, including statutes of limitations
(MOA). (See 40 CFR §§2.113(f) and 2.114(a).)
Some States have administrative appeal procedures which deny
a requester judicial appeal because of an untimely filing.
In those States, the requestor must have at least 30 days
from receipt of the initial determination to file a "timely"
appeal. In States where no such denial of a judicial appeal
exists, the State may provide less than 30 days (Statute/
Regulation).
The decision on the administrative appeal must be made either
within 30 days of filing or by the next meeting of the
appellate body after the 30-day period (Statute/Regulation).
(See 40 CFR §2.117.)
Failure to make a decision on an appeal within the prescribed
time period constitutes final Agency action, giving the reques-
tor the right to judicial review (Statute/Regulation). (See
5 U.S.C.552(a)(6)(c).)
There must be an opportunity for judicial review of any final
agency action to deny a request, including a review of any
determination that the requested records are exempt from
disclosure (Statute/Regulation). (See 40 CFR §2.116.)
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OSWER DIRECTIVE #9541.00-1
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0 The State need not charge a fee to provide copies of information.
However, if the State does charge a fee, a reduction or waiver
of fees shall be considered in connection with each request
from a representative of the press or other communication medium,
or from a public interest group. The State shall reduce or
waive the fee if it determines that"a reduction or waiver of the
fee is in the public interest because furnishing the information
can be considered as primarily benefitting the general public
(MOA). (See. 40 CFR §2.120(d)).)
0 Reasonable attorney's fees and other litigation costs reasonably
incurred may be assessed by the reviewing court against the
State if the requestor substantially prevails on judicial review
(Statute/Regulation). (See 5 U.S.C. §552(a)(4)(E).)
2. Requests for Information - Substantive Requirements
In the State's application to be authorized for Section 3006(f),
the Attorney General must certify that under State law, regula-
tions and relevant case law:
0 All records shall be available to the public unless they are
exempt from the disclosure requirements of the Federal FOIA,
5 U.S.C. 552.
0 All nonexempt records will be available to the public upon
request regardless of whether any justification or need for
such records has been shown by the requestor.
In addition, the State Attorney General must certify that
under prevailing State statutes and regulations, the same types
of records would be available to the public from the State as
would be available from EPA. In making this certification, the
Attorney General should be aware of the types of documents EPA
generally releases under the FOIA, subject to valid claims of
business confidentiality:
0 Permit applications and modifications
0 Biennial reports
0 Closure plans
0 Notification of a facility closure
0 Contingency plan incident reports
0 Delisting petitions and other petitions
for variances or waivers
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OSWER DIRECTIVE #9541.00-1
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0 Financial responsibility instruments
0 Environmental monitoring data (note that exemption's U.S.C.
552(b)(9) of the FOIA generally applies to such wells as oil
and gas, rather than to ground-water wells)
0 Transporter spill reports
0 International shipment reports
0 Manifest exception, discrepancy and unmanifested
waste reports
0 EPA Facility identification numbers
0 General correspondence with the facility
0 Enforcement orders
0 Inspection reports
0 Results of corrective action investigations
The State must agree in the MOA to make the fullest
possible disclosure of records to the public subject to any of
the exemptions under the Federal FOIA recognized by the State.
Under EPA regulations, exemptions 5 U.S.C. §552(b)(2), (b)(5),
or (b)(7) of the Federal FOIA are discretionary. The State may,
in its discretion, release requested records despite the applica-
bility of one or more of exemptions 5 U.S.C. §552(b)(2), (b)(5),
or (b)(7) of the Federal FOIA. In addition, disclosure of records
which could be exempt under exemptions (b)(2), (b)(5) or (b)(7)
of the Federal FOIA is encouraged if no important purpose would
be served by withholding the records.
3. Confidentiality of Business Information
Although EPA considers the protection of confidential
business information a very important safeguard for the business
community, the focus of §3006(f) is on the public's right to
information, not the protection of confidential business informa-
tion (CBI). Further, while Section 3007(b) generally requires
EPA to protect CBI, Section 3009 allows States to impose more
stringent requirements than those in Section 3007(b). Thus, for
both reasons, States are not required to protect CBI to satisfy
§3006(f). However, if a State does extend protection to confi-
dential business information, it must be done in a manner
consistent with the public's right to information. A State
cannot restrict the release of information that EPA would
require to be disclosed. Therefore, if a State does protect
confidential business information, the following protections
for the public are also necessary:
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OSWER DIRECTIVE £9541.00-1
-7-
Confidential business information cannot be defined any more
broadly than it is in 40 CFR Part 2, Subparts A and B (Statute/
Regulation). (See 40 CFR §§2.201(e), 2.208.)
8 a!
be able to release the information without further notice
to the business. In addition, in the case of. any information
submitted in connection with a permit, permit application,
or interim status under the State's equivalent to 40 CFR
Parts 260, 265, and 270, any business confidentiality claim
must be asserted at the time of submission of the information
to the State (Statute/Regulation). (See 40 CFR §270.12.)
0 If a claim of confidentiality is asserted and cannot be resolved
in the time period provided for an agency response to a request,
the requestor must be notified of the confidentiality claim
within the maximum 20-day time limit provided for an -agency
response. In addition, the requestor must be told that the
State has denied the request in order to resolve the business
confidentiality claim (MOA) . (See 40 CFR §2.204(d) (1) (ii) . )
4. Oversight
EPA routinely conducts .reviews of authorized State programs
to ensure that they are administering a quality RCRA program.
As States are authorized for Section 3006(f) of RCRA, this
part of the program will be reviewed along with other aspects
of the RCRA program that are currently being examined. States
must agree in the MOA to keep a log of denials of requests, or
if they prefer, a file containing copies of the denial letters
sent to requestors, which will be made available to EPA during
the State review.
Each State agrees in the authorization MOA to keep EPA fully
informed of any proposed modifications to its basic statutory
or regulatory authority, its forms, procedures, or priorities.
(See 40 CFR 271. 21 (a)). This agreement applies to Section 3006(f).
Addressees ;
Regional Waste Management Division Directors, Regions I-X
Hazardous Waste Branch Chiefs, Regions I-X
Office of Regional Counsel RCRA Team Leaders, Regions I-X
State Hazardous Waste Program Directors
Associate Enforcement Counsel for Waste
Associate General Counsel for Solid Waste and Emergency Response
OSWER Office Directors
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OSWER DIRECTIVE #9541.00-1
APPENDIX D
RCRA REVISION CHECKLIST FOR
SECTION 3006(f): A\flUIABILITY OF INFORMATION
November 8, 1984
FEDERAL REQUIREMENT
RCRA CITE
40 CFR
STATE AUTHORITY
STATUTE/REGUIATION/MDA
REQUIRED
AUTHORITY
1. PROCEDURAL REQUIREMENTS
1.1 Scope of records sub-
ject to State requests
as broad as scope of
records defined by EPA
1.2 Certain materials
routinely available
without formal FOI
1.3 Reasonable effort
to assist requestor
1.4 Respond to request
within 20 days. Failure
to do so is basis for
judicial or
administrative review
1.5 If request denied,
provide basis for denial
and notice of judicial/
administrative
appeal procedures
1.6 Denial of judi-
cial appeal because
of untimely filing,
provide 30 days to
file timely appeal
1.7 Decision on
administrative
appeal within 30 days
or by next meeting of
appellate body
2.100(b)
2.104(b)
2.109(b)
2.112
2.113(f)
and
2.114(a)
2.117
•
Statute/
Regulation
MOA
MQA
Statute/
Regulation
MQA
Statute/
Regulation
Statute/
Regulation
November 8, 1984 Page 1 of 4
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Section 3006(f) Checklist (continued)
FEDERAL REQUIREMENT
RCRA CITE
40 CFR
STATE AUTHORITY _
STATUTE/REGULATION/MOA
REQUIRED
AUTHORITY
1.8 Failure to decide on
appeal by deadline consti-
tutes final agency action
and requestor's right
to judicial, review
5 U.S.C.
552 (a)(6)
(C)
Statute/
Regulation
1.9 Opportunity for
judicial review of any
final agency action
denying request
2.116
Statute/
Regulation
1.10 Consider waiver of
fees for copies of
information
2.120(d)
MOA
1.11 Attorney's fees
and expenses
5 U.S.C.
552(a)(4)
(E) .
Statute/
Regulation
November 8, 1984 - Page 2 of 4
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Section 3006(f) .Checklist (continued)
FEDERAL REQUIREMENT
RCRA CITE
40 CFR
STATE AUTHORITY
STATUTE/REGUIATION/MDA
REQUIRED
AUTHORITY
2. SUBSTANTIVE REQUIREMENTS
Based on statute, regulation or case law, the Attorney General must
certify that:
2.1 All records are avail-
able to the public unless
exempt from disclosure
2.2 All non-exempt records
available to the public
regardless of whether any
justification or need for
records shown by requestor
2.3 Same types of records
available as EPA provides*
See
5 U.S.C.
552 for
exemptions
See 2.1
See 2.1
Attorney
General
Statement
as part of
applica-
tion for
authoriza-
tion for
§3006(f)
2.4 State agrees to
fullest possible disclosure
of records to public
MOA
§3006(f)
Examples of records subject to release: Permit applications and modifications;
Biennial reports; Closure plans; Notification of a facility closure; Contin-
gency plan incident reports; Delisting petitions and other petitions for
variances or waivers; Financial responsibility instruments; Environmental
monitoring data (exemption 5 U.S.C. 522 (b)(9) of the POIA generally applies
to such wells as oil and gas, rather than to ground-water wells); Transporter
spills reports, International shipment reports; Manifest exception, discrepancy
and unmanifested waste reports; EPA facility identification numbers; General
correspondence with facility; Enforcement orders, Inspection reports; and
Corrective action investigation results.
November 8, 1984 - Page 3 of 4
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Section 3006(f) Checklist (continued)
FEDERAL REQUIREMENT
RCRA CITE
40 CFR
STATE AUTHORITY
STATUTE/REGUIATICN/F^
REQUIRED
AUTHORITY
3. CONFIDENTIAL BUSINESS INFORMATION (CBI)
3.1 CBI not defined any
more broadly than 40 CFR
Part 2, Subpart A and B
3.2 If no claim of CBI at
first opportunity, release
information
3.3 If CBI claim cannot be
resolved within 20 days of
request, requestor must be
notified of claim within
20 days and told that State
denied claim so as to
resolve CBI
2.201(e)
and 2.208
270.12
2.204(d)(l)
(ii)
-
Statute/
Regulation
Statute/
Regulation
MOA
4. OVERSIGHT OF STATE PROGRAM
4.1 State must keep log or
file of denials of requests
available for inspection
MOA
4.2 State informs EPA of
proposed modification of
its basic statutory/
regulatory authority, forms,
procedures, or priorities
271.21(a)
MOA
November 8, 1984 - Page 4 of 4
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f dHh \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
1 WASHINGTON, D.C. 20460
JUL-23 1986
MEMORANDUM
SUBJECT: Interpretation of April 24, 1986 Draft Guidance
on §3006(f) of RCRA
FROM: Marcia E. Williams, Director/M/.ACA^-t^
Office of Solid Waste [
Lisa K. FriedmanJ'.'7^_/<
Associate General Counsel
TO: David A. Stringham, Chief .
Solid Waste Branch, Region V
Mike Elam, Acting Chief
Office of Regional Counsel, Region V
This is in response to your June 24.memorandum concerning
EPA's draft guidance on Section 3006(f) of RCRA. The guidance
requires States to respond to FOIA requests within twenty days.
You asked whether States whose statutes or regulations do not
contain this requirement could agree to it in the MOA. You
believe that this is a procedural requirement for which an MOA
agreement would be appropriate.
We disagree that this requirement can be handled through
an MOA. Under 40 CFR §2.112, failure to respond to a FOIA
request in 20 days constitutes a final agency action which
triggers judicial review. Thus, the 20-day deadline is not a
procedural requirement, but an inherent part of a substantive
requirement and must be included in statutes or regulations.
We have consistently treated it as such in our development of
the Section 3006(f) guidance and our related discussions with
ASTSWMO and EDF.
We regret that this decision will require rule changes in
several of your States. It appears that the language in your
States' statutes requiring a response "as soon as possible" or
"within a reasonable amount of time" would provide adequate
statutory authority for State regulations establishing a 20-day
response time.
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If you have any further questions concerning this.matter,
please contact Martha Madison, State Programs Branch, OSW at
FTS 382-2229. '
cc: Bruce Weddle
Martha Madison
Alex Wolfe ;
George Garland
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