United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
ft EPA
DIRECTIVE NUMBER: 9541.00-15
''' "• Guidance on Delegation of Authorization Decisions,
Including Issues of National Significance
APPROVAL DATE: December 20, 1991
EFFECTIVE DATE: December 20/1991
ORIGINATING OFFICE:
FINAL
Permits and State Programs
Division, Office of Solid Waste
DRAFT
STATUS:
D A - Pending OMB Approval
G B - Pending AA-OSWER Approval
REFERENCE (Other Documents):
Supplements 9545.00-6A "RCRA. Program Evaluation Guide"
OSWEP
OSWER
OSWER
OSWE
DIRECTIVE DIRECTIVE DIRECTS
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*± ^f^m. United States Environmental Protection Agency 1 . Directive Number
•Sb^RtX Washington. DC 20460 .. , c
«*t=rM OSWER Directive Initiation Request 9541.00-15
2. Originator Information
Name of Contact Person Mail Code Office
Karen Morley OS-342 stc
P&uiu.U> * Telephone Code
ite Programs Div.
260-4180
3. Title
Guidance on Delegation of Authorization Decisions, Including Issues of
National Significance
4. Summary of Directive (include brief statement of purpose)
This guidance discusses the roles of the Regions and Headquarters during
delegation, describes oversight of the pilot program, and provides guidance
nationally significant issues.
on
5. Keywords
delegation/authorization/state programs
6a. Does This Directive Supersede Previous Directive(s)?
_XN°
b/Does It Supplement Previous Directive(s)?
NO j
7. Draft Level
A - Signed by AA/DAA jj B - Signed by Office Director
Yes What directive (number, title)
- Yes What directive (number. title)954
ECRA Program jsvaluat
C - For Review & Comment D
8. Document to be distributed to States by H
eadquarters? X Yes K
This Request Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator—^ • __
Date /
5.00-6A
ion Guide
- In Development
lo
2-
T
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,10 Sr,,
'
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
SOLID WASTE ANDEUEPG£\CV "ESPONSE
,.1-i«- X (.' . (Ml |
MEMORANDUM
SUBJECT: Guidance on Delegation of Authorization Decisions,
Including Issues of National Significance
FROM: Sylvia K. Lowrance, Directo^^ ^ '£ . A—- - *
Office of Solid Waste
TO: Hazardous Waste Management Division Directors
Regions I-X
Attached is the guidance on delegation of authorization
decisions referenced in the March 11, 1991 memorandum from Don
Clay and Don Elliott to the Regional Administrators announcing
the pilot delegation of RCRA Subtitle C State program revision
authorizations to the Regions. This guidance discusses the roles
of the Regions and Headquarters during delegation, describes
oversight of the pilot program, and provides guidance on
nationally significant issues.
As the March 11 memorandum stated, the success of this
delegation is dependent upon all of us taking our
responsibilities seriously, and we believe this guidance will
help clarify those responsibilities. We also recognize that
authorization is a dynamic process, and since.this delegation
represents a new approach for both the Regions and Headquarters,
we will review and add to this guidance as we all gain experience
with the process.
Attachment
cc: Bruce Diamond, Director, OWPE
Susan Bromm, OWPE
Lisa Friedman, OGC
Tina Kaneen, OGC
Hazardous Waste Management 'Branch Chiefs, Regions I-X
Authorization Section Chiefs, Regions I-X
Dev Barnes, PSPD
Branch Chiefs, PSPD
Branch Chiefs, OWPE
ORC RCRA Branch Chiefs, Regions I-X
\-L Pnntec C" ««•;.: fC Paoer
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OSWER DIR. NO. 9541.00—15
GUIDANCE ON DELEGATION OF AUTHORIZATION DECISIONS
Effective March 11, 1991, the Office of Solid Waste and
Emergency Response (OSWER) delegated the responsibility for RCRA
Subtitle C State program revision application reviews and
authorization decisions to the Regions on a two-year pilot basis
(see the March 11, 1991 memorandum). This document discusses the
roles of the Regions and Headquarters during delegation,
describes oversight of the pilot program, and provides guidance
on nationally significant issues.
Former Authorization Application Review Process
Under the former program revision process, concurrent
Headquarters and Regional review was required for draft
applications, official applications, and Federal Register
notices. This process is described thoroughly in the State
Authorization Manual (SAM). The dual review process was set up
to minimize the risks of authorizing deficient State programs and
to ensure national consistency. These goals have been largely
met but at a cost of considerable tension in relationships
between Headquarters and Regions and Regions and States. Much of
the tension stems from duplicative Headquarters and Regional
application reviews and the Regions* inability to publish an
authorization decision in the Federal Register without
Headquarters' approval. Authorization problems resulting from
duplicative reviews include:
1. Delays and inefficiencies in the authorization process.
2. New issues discovered after the first review of the
application and revisiting previously resolved issues.
3. Headquarters' reviews perceived as second guessing of
Regional decisions.
4. Headquarters' constraints on issuing timely authorization
guidance because of time spent on detailed reviews.
5. Confusion over Headquarters' role during ten day
consultation period and delays in publishing FR notices.
The RCRA Implementation Study (RIS) noted this tension and
stimulated Don Clay's commitment to make the authorization
process easier. Therefore, on March 11, 1991, Headquarters
delegated to the Regions the responsibility for reviewing and
authorizing State program revision applications on a pilot basis.
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Tvo-Year Pilot Delegation
Scope
Regions are responsible for program revision review and
authorization on a two-year pilot basis. Headquarters review and
concurrence is still required, however, for States and Indian
Tribes applying for base RCRA program authorization. The Regions
are responsible for maintaining an effective authorization
decision process, including explaining decisions to the public
and oversight bodies. They will ensure national consistency in
delegated decisions by raising and documenting the resolution of
nationally significant issues as well as ensuring that all
decisions adhere to national authorization regulations, guidance
and policies,.
Under the pilot delegation, Headquarters involvement in the
application review process for program revisions is limited to a
consultation role on nationally significant issues and to
providing technical assistance to the Regions. Regions will send
authorization Federal Register notices and charge back forms
directly to the Regulation Management Branch at EPA Headquarters,
with a copy of the Federal Register notice to the State and
Regional Programs Branch (SPRB) in OSW.
National Authorization Goals
4
o Ensure the quality of State authorization decisions
o Encourage delegation of the hazardous waste program to the
States by working with the States to adopt current hazardous
waste regulations and enhance the States' capability
o Promote a consistent, effective RCRA program across the
nation
Delegation Goals
o Streamline the authorization process
o Reduce duplication of effort by Headquarters and Regions in
the authorization process
o Clarify roles and responsibilities of Headquarters and
Regions
o Move authorization decisions closer to the source of the
applications
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OSWER DIR. NO. y34l.UU—
Role of EPA Regions During Pilot
The Regions will work with the States to enhance the States'
capability for authorization and to develop State regulations and
authorization applications. The following areas are of special
significance.
Issues To Be Raised to Headquarters
The Regions may still consult with Headquarters on specific
issues and obtain technical and legal assistance. The Regions
will also provide certain information to Headquarters to maintain
national authorization records. In addition, in order to
maintain a nationally consistent authorization program, Regions
will raise to Headquarters' attention issues of national
significance. At the time of each authorization decision, .the
Regional Waste Management Division Director must certify that all
nationally significant issues have been raised to Headquarters.
This certification must accompany the Headquarters (SRPB) copy of
the FR approval notice. The Office of Regional Counsel will
provide assurances to the Regional Administrator that all legal
issues have been reviewed and satisfactorily addressed.
Attachment 1 contains guidance on nationally significant issues.
Attachment 2 provides model Division Director certification
language.
»
In addition to raising nationally significant issues,
Regions need to inform Headquarters of:
o The discovery of problems which arise after the application
is approved;
o A substantial change in a State's capability which brings
into question its ability to implement an effective program;
o Actual or threatened lawsuits over approved State
regulations or authorization decisions;
o Substantial public controversy over an aspect of the
application; and
o Errors in Federal Register notices.
Timely Authorization of Qualified States
Another prime responsibility for the Regions is the timely
authorization of qualified States. To achieve this Regions must:
o Work with the States to enhance their capabilities to
maintain quality programs and assume additional
responsibilities;
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o Ensure that qualified States submit authorization
applications in accordance with established deadlines; and
o Recognize authorization problems and resolve them
expeditiously.
State Enhancement and Authorization Plan
Each Region must also prepare and submit to Headquarters an
annual "State Enhancement and Authorization Plan." The first
plans are due to Headquarters as part of the Region's Beginning
of Year Plan required by the FY 92 RCRA Implementation Plan.
These plans are due to Headquarters by August 15, 1991. The
State Plan will outline the Region's activities for building
State capability and advancing authorization. These plans should
indicate how work will be shared between the States and Regions
and how this sharing will contribute to the States' ability to
become authorized for the provisions subject to work sharing.
Regions should use these plans as a tool to encourage
unauthorized States to become authorized and authorized States to
adopt program revisions as quickly as possible. The plans should
highlight those revisions such as corrective action and the land
disposal restrictions that are fundamental to a comprehensive
hazardous waste management program. They should further
emphasize State adoption of non-HSWA requirements and those
optional rules which would improve the operation of State
programs. Two rules in particular which fit this category are
the permit modification (53 FR 37912, 9/28/88) and the interim
status changes rule (54 FR 9696, 3/7/89). These rules provide an
improved process for assimilating the expanding hazardous waste
universe (e.g., new waste listings, new processes) and will also
expedite changes at facilities to provide new capacity and
accommodate corrective action. In addition, adoption of the
permit modification rule would make implementation of the new
Toxicity Characteristic Rule easier by shortening the period of
dual EPA/State regulation.
The State Plan should specifically .address each individual
State's progress in achieving authorization to date. The Plan
should identify the problems (e.g., statutory/regulatory change
issues, capability concerns) the State is having achieving
authorization. Finally, the Plan should come up with a solution
for getting each State authorized for all key components of the
program as soon as possible (especially for the non-HSWA
requirements). We encourage the Regions to be creative in
working on the States' problems and developing solutions.
Possibilities include: working to change a State's unwieldy
permit approval process, developing capability or resolving
problems blocking authorization (such as high staff turnover
rates), using IPAs or SWAT teams, and providing additional
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ISO.
training. Ranking of activities may be necessary where there are
numerous authorization issues and problems.
state Oversight Tools and sanctions
The Regions should employ the appropriate oversight tools
and sanctions to achieve quality State performance and timely
submission of authorization applications. EPA's Policy on
Performance-Based Assistance. (May 31, 1985), establishes
"differential oversight" as an effective tool for sanctions and
rewards for State programs. Regional actions to address State
problems may range from providing technical assistance, and
increasing oversight frequency to using grant sanctions. Actions
taken by the Regions should be appropriate to the nature and
severity of the State's performance problem. For further
guidance on Regional response actions, please see page 36 of the
RCRA Program Evaluation Guide. (OSWER Directive 9545.00-6A),
Maintaining Authorization Administrative Records
Regions will be expected to maintain authorization
administrative records that adequately document the basis of
authorization decisions. Authorization administrative records
should provide sufficient information to allow the Regions to
respond fully and in a timely manner to inquiries from Congress
or the public. These records will also serve as the basis of the
Agency's defense if anyone challenges the Agency's authorization
decision. In addition, these records must be readily accessible
to Headquarters staff during reviews, and be easily transferable
to new Regional staff.
Maintaining Regular Communication with Headquarters
Regions are also expected to maintain regular communication
with Headquarters. Regions should provide brief write-ups of
significant national and Regional authorization issues and steps
taken to resolve them; actively participate in the monthly
conference calls; and participate in and encourage new staff to
attend Headquarters sponsored authorization training.
As in the past, the Regions must send copies of each State's
grant work program to the Chief, SRPB, after negotiation and
execution of the grant award document by the Region.
Authorization Tracking System
Accurate and frequent updating of the forthcoming
authorization tracking system will be an important Regional
function to not only ensure that Headquarters is fully aware of
Regional activity, but to enable Headquarters to respond to
inquiries from Congress and oversight agencies. Two types of
data in particular will be required: first, regular
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OSWER DIR NO. 9541.UO—13
authorization status information, and second, information on what
regulations States have adopted but for which they have not yet
been authorized. Regions will be expected to input data into a
tracking system in a timely manner. Specific guidance on the
tracking system will be provided in a future guidance document.
Role ef EPA Headquarters in Pilot Delegation
The role of EPA Headquarters in the program revision process
during the pilot delegation will include oversight and evaluation
of the pilot, tracking authorization of States, training, and
technical assistance.
Headquarters will oversee the Regional authorization process
in order to:
o Ensure national consistency
o Ensure the Region's ability to enhance authorization
potential of States
o Ensure the Region's ability to authorize quality
applications in a timely manner
o Provide the Regions with current national guidance
Headquarters oversight role includes working with the
Regions to resolve nationally significant issues in a timely
manner and keeping the Regions abreast of nationally significant
issues in other Regions.
Evaluating Regional Performance
Headquarters reviews will evaluate Regional performance by:
o Conducting reviews of authorization programs (similar to
permit quality reviews) at least once a year by interviewing
Regional staff, reviewing the completeness of authorization
files and selecting approved applications to review;
o Reviewing and evaluating the implementation of State
Enhancement and Authorization Plans; and
o Attending end-of-year and mid-year State reviews as
appropriate.
Tracking Authorization Status
Headquarters will track the status of authorization
application reviews and Regional and State authorization
decisions. The tracking system will be used to respond quickly
to authorization inquiries from Congress and others. The FY 92
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OSWER DIR NO. 9541.00—15
RIP includes a STARS measure requiring submission of information
on authorization progress. This measure will provide a means to
determine the relative progress of the States in achieving timely
authorization, taking into account each State's status at the
beginning of the pilot.
Providing Technical Assistance and Training
In addition, Headquarters will continue to conduct
authorization training courses and provide technical assistance
to the Regions and States. Regions may request assistance with
developing regulations, preparing or reviewing application
components, or conducting specialized training. Headquarters
will continue to develop national policy and issue guidance on
authorization and implementation issues, including regular
updates to the State Authorization Manual, and to revise the
authorization process based on recommendations from the RCRA
Implementation Study (RIS). To the extent feasible, Headquarters
will also provide a national contract vehicle which Regions may
fund to assist Regions with regulation reviews.
Evaluation of Pilot Delegation
Headquarters will evaluate the pilot through on-site
reviews, review of annual State Enhancement and Authorization
Plans and accomplishments, and STARS data.
In evaluating Regional performance, Headquarters will look
for specific indicators of high performance and low performance.
Examples of high performance by a Region could include:
authorization of key components of the program; high quality
State Plans that are effectively implemented; approved State
applications address all Regional comments; and expeditious
attempts to correct any problems identified in authorization
decisions. Low Regional performance examples could include: lack
of demonstrable progress authorizing States for key components of
the program (especially non-HWSA requirements); failure to
develop or execute designs to improve State capability; and
incomplete or disorderly Regional files.
At the end of the two-year pilot, Headquarters will decide,
based on a review of each Region's authorization performance,
whether the delegation should be continued/expanded, either in
full, in part, or by extending the pilot, or decide whether an
alternative authorization process should be developed.
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. iMU.
ATTACHMENT 1
ISSUES OF NATIONAL SIGNIFICANCE
Effective March 11, 1991, Headquarters delegated the
responsibility for RCRA Subtitle C State program revision
application review and authorization decisions to the Regions on
a two year pilot basis. Delegation of this authorization
responsibility to the Regions is, in part, contingent on Regional
commitment to raise issues of national significance to
Headquarters on a timely basis. Headquarters needs to be
apprised of these issues to ensure national consistency in our
authorization decisions. To that end, you will be certifying
prior to the Regional Administrator approving an application that
national issues have been brought to Headquarters' attention.
This memorandum broadly outlines potential issues of -
national 'significance to assist the Regions in identifying such
issues. It should be noted, however, that this guidance cannot
and does not attempt to present an inclusive list of nationally
significant issues. Many of the issues that arise in a revision
application are being seen for the first time and -increased
Regional alertness to the potential national impact of all issues
is critical. Regions should err on the side of prudence in
raising issues to Headquarters during the pilot period. In
general, Regions should consult with Headquarters prior to
deviating from national authorization guidance, including that
for capability assessments. A list of recent major authorization
guidance documents is attached.
The following issues should also be raised to Headquarters'
attention:
Regulations, procedures or agreements that alter the
fundamental relationship between EPA and the State. A
recent example is an MOA proposed by a State which would
have severely limited EPA's oversight and enforcement
responsibilities.
Possible violations of Section 271.4 consistency criteria.
Areas of concern include State laws, regulations or
administrative actions which result in waste importation
restrictions, facility siting restrictions, and bans on
treatment, storage, and disposal methods. Note that these
affect the.continued authorization .of .a.State as well as
their ability to receive additional program approvals.
Questionable State Authority. The Region should alert
Headquarters prior to approving revisions for which the
underlying statutory authority is unclear.
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OSWER LUK.
Lack of State capability which brings into question its
ability or willingness to enforce its regulations. An
example of this would be a State program which lacks the
ability to effectively collect penalties, either
administratively or judicially, for violations of its
regulations.
Adoption of regulations that are not clearly equivalent or
more stringent on their face. Headquarters should be
consulted when a State adopts regulations that are not
equivalent or more stringent on their face, and the Region
proposes to authorize based on those regulations.
Substantial statutory/regulatory revisions that
significantly change the State's existing hazardous waste
program. This situation could occur when a State
legislature or agency significantly revises the statutory or
regulatory authority for the State's currently authorized
hazardous waste regulations and those revisions would result
in such substantial modifications to the State's authorized
program that continued authorization of the State could be
in jeopardy.
We have also encountered three specific program areas which
raise difficult authorization issues that should be brought to
Headquarters' attention:
o Mixed Waste. Guidance on Mixed Waste is found in
Appendix N of Volume II of the State Authorization Manual
(SAM). Approvals of provisions that deviate from that
guidance should be brought to Headquarter's attention. The
Regions should be especially careful in the following areas:
ascertaining that the State has adequately documented
(through an MOU) the roles and responsibilities of the
State's hazardous waste and radiation protection agencies
when sharing mixed waste inspection activities; ascertaining
that the State does not attempt to regulate the radioactive
component of mixed waste under its hazardous waste
authority.
o 3006ffl. Approvals of 3006(f) availability of information
(FOIA) provisions that deviate from the guidance of July 23,
1986, and August 22, 1986 (OSWER DIRECTIVE #9541.00-1)
should be brought to Headquarters' attention. Examples of
problem areas are found in the March 8, 1990 Summary of RCRA
3006(f) Issues, which describes the difficult areas
identified to date and explains how EPA has responded to the
State FOIA provisions that deviate from the EPA guidance set
out in the guidance documents noted above. All these
documents are found in the SAM, Vol. II, Appendix N.
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o Delisting. Delisting requires Headquarters consultation
to facilitate national coordination of delisting procedures
and petitions. The Region should notify OSW (Robert Kayser,
Chief, Delisting Section, FTS 382-4770) if a State applies
for authorization to administer the delisting program. This
will also facilitate the transfer of all pending petitions
to the newly authorized State for further action.
Again, the above list is not exhaustive. We will issue
additional guidance as needed as we and the Regions gain
experience with delegation.
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LU.K.
STATE AUTHORIZATION GUIDANCE DOCUMENTS
State Consolidated RCRA Authorization Manual (SCRAM), (9540.00-9,
1988, as revised)
State Authorization Manual, Volumes I and II (SAM), (9540.00-9A,
October 1990)
Capability Assessment Guidance (April 9, 1987-currently being
revised)
Enforcement Response Policy (Revised December 21, 1987)
RCRA Program.Evaluation Guide (Revised July 1988)
RCRA Quality Criteria (Revised July 1986)
Policy of Performance-Based Assistance (May 31, 1985)
Program Implementation Guidance:
PIG 84-1 5/21/84 No EPA enforcement in authorized States
for broader in scope provisions
PIG 82-5 8/09/82 States may issue State permits
PIG 82-4 5/25/82 Delisting not required for State
authorization
PIG 82-3 5/17/82 EPA enforces only those State
regulations in effect at time of
violation
RCRA Reauthorization Statutory Interpretations
RSI #5 7/01/85 Joint Permitting in authorized States
RSI #4 5/16/85 Effect of HSWA on State delisting
decisions
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ObWEK D1R. NO. 9541.00—15
ATTACHMENT 2
CERTIFICATION
REGIONAL WASTE MANAGEMENT DIVISION DIRECTOR CERTIFICATION
• I certify that all issues of 'national significance regarding
(State X's) program revision authorization application for
Checklist numbers [Add non-checklisted provisions as well,
if appropriate; for example, Mixed Waste, Availability of
Information] have been raised to the appropriate officials at
Headquarters.
Regional Waste Management Division D'irector
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