&EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: [9541.00-3
TITLE: RCRA Final Authorisation Guidance Manual
APPROVAL DATE: JUNE 10, 1983
EFFECTIVE DATE: JUNE 10. 1983
ORIGINATING OFFICE:
0 FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OSWER OSWER OSWER
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AA-OSWER
RCRA Final Authorisation Guidance Manual
Summary of Directive
SUMMARY . . ,
The document provides guidance regarding final authorization or -
State hazardous waste programs for the pre-HSWA RCRA program. The
Manual establishes a process and schedule for State authorization
applications, and provides detailed guidance on what State programs
must contain in order to qualify for final authorization. The
primary audience is EPA HQ and Regional offices and State Agencies,
but public requests have also been received.
Key Words:
State Authorization
Typ« of Oirectiw* iMtnutl. Policy Otrtetnt. Announetmtrtt. ne.i
Status
1 G Draft
Final
' G New
LJ Revision
Do«» tnu O.rtctiv* Sup«rM* Previous Oift«iv«isi> Q Yes
if "Y«« " to Either Question. What Directive inumhtf. ntlii
No Does it Suooiemem Previous Oirtct>v«
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RCRA
Final Authorization
Guidance Manual
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RCRA FINAL AUTHORIZATION
GUIDANCE MANUAL
JUNE 10, 1983
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* JNITEO STASIS ENViRCNN'EN .'iL =?OrEC~:r*-l -GENCY
•I. .-,•.<*•"
1 0 JUN1983
• ..-!•-« C£
5C'.;C VVAS~£ i>:3 I'.--*
MEMORANDUM
SUBJECT: £$RA FiflaX-Authorization Guidance Manual
FROM: ^.ee M. Thomas
Acting Assistant Administrator for
Solid Waste and Emergency Response
TO: Regional Administrators
Regions I-X
I am pleased to transmit for your immediate use the attached
copy of EPA's "RCRA Final Authorization Guidance Manual". Under
separate cover we are providing additional copies to your Hazardous
Waste Division for transmittal to the State agency Directors in
your Region.
This manual is the result of many months of work and reflects
the input and agreement of several key contributors to its
development/ including representatives of EPA's Regional Offices,
State agency personnel working through the Association of State
and Territorial Solid Waste Management Officials (ASTSWMO), and
other offices in EPA Headquarters,, especially the Agency's Office
of General Counsel. This broad-based participation provides the
best assurance that the final authorization process and policies
in the attached manual include all feasible avenues to increase
flexibility while assuring the quality of authorized programs.
The Office of Management and Budget (OMB) has recently cleared
the manual for immediate use. Also, EPA's Office of Legal and
Enforcement Counsel has concurred with its contents. Therefore/
we can immediately begin using the manual to accelerate the final
authorization of State programs.
Reflecting the cooperative efforts which went into its
development/ the manual should be of substantial assistance to
the States and EPA in developing and reviewing applications for
program authorization. It provides the clearest statements
possible concerning the Agency's authorization policies and
processes. Availability of the manual should enable our Regional
Offices and the States to more agressively pursue final authori-
zation and to work together to accelerate State program development
and the preparation and submission of applications. This manual
should be used to expedite the individual State authorization
strategies that were developed by your staff in accordance with
the guidance in my April 29 memorandum to you.
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- 2 -
I strongly encourage immediate use of the RCRA Final Author-
ization Manual as a means to quicken the pace of the final
authorization of State programs. I will do all that is within
my power to assure that EPA adheres to the review schedules in
the manual. Likewise/ it is critical that qualified States
develop and submit their applications as quickly as possible.
We look forward to receiving an application from each State
and will work hard to help qualified States clear this last hurdle
to final authorization.
Attachment
cc: Air & Hazardous Materials Division Directors, Regions I-X
Solid Waste Branch Chiefs, Regions I-X
A. James Barnes, Acting General Counsel
Courtney Price, Special Counsel for Enforcement
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RCRA FINAL AUTHORIZATION GUIDANCE MANUAL
TABLE OF CONTENTS
PREFACE
1.0 GENERAL
1.1 Introduction
1.2 Definitions
1.3 State Program Requirements for Final Authorization
1.4 Application Approval Process
2.0 STATE SUBMITTAL GUIDANCE
2.1 Governor's Letter
2.2 Program Description .
2.3 Attorney General's Statement
2.4 Memorandum of Agreement
2.5 Showing of Public Participation
2.6 State Statutes and Regulations
2.7 State Legislation Checklist
2.8 Completeness of Submittal Checklist
APPENDICES
A. State Regulatory Program Checklist
B. Financial Responsibility
C. List of Federal Register Notices
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LIST OF FIGURES
Figure
Figure 1 Draft Application Review Process
Figure 2 Official Application Review Process
1.4-8
1.4-10
Table 1
Table 2
Table
Requirements for Final Authorization
Estimated Types and Number of Regulated
Activities
Table 3 Annual Quantities of Hazardous Waste
1.3-2
2.2-6
2.2-7
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PREFACE
Goals for Final Authorization
Final authorization of State hazardous waste programs is one of EPA's
highest priorities.. Our goal is to approve as many qualified States for
final authorization as possible by the end of the statutory period for
interim authorization in January 1985. Over two-thirds of the States have
already received interim authorization since November 1980. We can improve
on that record for final authorization by continuing the cooperative part-
nership among the States and territories, EPA Regions, and EPA Headquarters.
The Final Authorization Guidance Manual establishes a process and
schedule which should enable us to meet this goal. The Manual provides for
an early review step for State statutes, so that interested States can
receive an initial analysis of their program authority, with time left to
make necessary program changes. The schedule for review of State applica-
tions commits EPA to expeditious action. The entire process is directed at
making final authorization decisions before January 1985, when interim
authorization expires in all States. All States are urged to submit their
applications as early as possible.
Statutory Requirements for Final Authorization
The Resource Conservation and Recovery Act (RCRA) establishes a dif-
ferent and more difficult test for States applying for final authorization
than was required for interim authorization. States applying for interim
authorization must have programs "substantially equivalent" to the Federal
program. State programs applying for final authorization are subject to the
following statutory standards:
(1) They must be "equivalent" to the Federal program (RCRA
Section 3006);
(2) They may not impose any requirements "less stringent" than
the Federal requirements (RCRA Section 3009);
(3) They must be "consistent" with the Federal program and other
State programs (RCRA Section 3006);
(4) They may, however, impose requirements which are "more strin-
gent" than those imposed by Federal regulations (RCRA Section
3009);
•
(5) They must follow specific procedures for public "notice and
hearing" in the permitting process (RCRA Section 7004); and
(6) They must "provide adequate enforcement" (RCRA Section 3006).
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In reviewing State applications, EPA is required to determine that
States satisfy these six statutory standards. While these requirements are
discussed in more detail in the chapters that follow, this Preface high-
lights our approach to carrying out the mandate of RCRA in these areas.
Equivalent and No Less Stringent Programs
RCRA §3006(b) requires that State final authorization programs be
"equivalent" to the Federal Program. RCRA §3009 prohibits States from
imposing requirements which are "less stringent that those authorized under
this subtitle."
Taken together, these two sections mean that all States applying for
final authorization must demonstrate that their requirements are equivalent
to and at least as stringent as the Federal requirements. This does not
mean that States have to implement their programs in exactly the same way
that EPA does. State provisions can differ as long as they address all of
the Federal program requirements and include requirements which are equiva-
lent to and at least as stringent as the comparable Federal program require-
ments. This manual provides guidance on necessary State authority to meet
these tests.
Consistent and More Stringent Programs
Section 3009 does allow States to impose requirements "which are more
stringent than those imposed by [RCRAj regulations." Therefore, States may
add. requirements which provide more rigorous control of hazardous waste
activities than EPA's regulations or which are broader in scope. In addi-
tion, State programs need not adopt those Federal regulations that serve to
exempt persons from certain requirements or that allow increased flexibil-
ity.
However, this provision must be read in conjunction with RCRA §3006(b),
which requires that State final authorization programs be "consistent with
the Federal or State programs applicable in other States." Pursuant to 40
CFR §271.4, EPA will focus its review of consistency on State program provi-
sions which tend to impede the flow of interstate commerce or otherwise
interfere with the national regulatory scheme established by RCRA. Accord-
ingly, EPA will view as inconsistent those aspects of State programs which:
(A) operate as a ban on the interstate movement of hazardous waste (e.g.,
importation bans); (B) prohibit treatment, storage or disposal of hazardous
waste within that State, if the prohibition has no basis in human health or
environmental protection; or (C) do not meet the manifest system require-
ments of the Federal program.
Notice and Hearing in the Permit Process
RCRA §7004(b)(2) stipulates that no State permit program may be author-
ized unless it "provides for the notice and hearing required by [thisj
iv
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paragraph." Because of this clear language, 40 CFR §§124.10 and 124.12
require that States must provide notice of their intent to issue a permit
through publication in "major local newspapers of general circulation,"
broadcast such notice over local radio stations, and provide written notice
to certain State and local government agencies. Further, the State must
provide for at least a 45 day public comment period. The State is also
required by §7004 to hold an informal public hearing if it receives a re-
quest for a hearing during the comment period.
Adequate Enforcement
RCRA §3006(b) requires that State final authorization programs "provide
adequate enforcement of compliance with the requirements of this subtitle."
Because the adequacy of State enforcement programs is explicitly emphasized
by Congress, EPA must pay special attention to the review of State enforce-
ment authority.
EPA will examine the inspection, enforcement remedy, and penalty
authorities of State programs in light of the provisions of RCRA §3007 and
40 CFR §§271.15 and 271.16. In particular, States will need to provide for
both civil and criminal penalties, and must have the authority to levy such
penalties in the amount of at least $10,000 per day. States are also re-
quired to provide for public participation in the enforcement process,
pursuant to 40 CFR §271.16(d).
Conclusion
We look forward to a close working relationship between EPA and the
States in the period ahead and to the successful introduction of the RCRA
final authorization program. Using the process and guidelines established
in this Manual, we can fulfill the important responsibilities placed on us
by the American public for an effective national program to manage hazardous
wastes.
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CHAPTER 1.1
INTRODUCTION
The Resource Conservation and Recovery Act of 1976, (RCRA), as amended,
provides for authorization of State hazardous waste programs. This Guidance
Manual has been developed to provide direction to States in developing
applications for final authorization and also sets forth the internal EPA
procedures which will be used to process applications. Because this Manual
is intended only to provide guidance concerning the implementation and
interpretation of EPA's Part 271 regulations, EPA has concluded that rule-
making procedures are not required under the Administrative Procedure Act, 5
U.S.C. §553.
RCRA provides for two stages of State hazardous waste authorization:
interim and final authorization. A State may receive interim authorization
if its program is substantially equivalent to the Federal program. Interim
authorization is a temporary mechanism that is intended to promote continued
State participation in hazardous waste management while encouraging States
to develop programs that are fully equivalent to the Federal program. Now
that all of the major components of the Federal hazardous waste program are
in place, final authorization is available to State programs. To achieve
final authorization a State must demonstrate that its program meets the six
statutory tests that are described in this Manual and that are embodied in
the regulatory requirements for final authorization in -40 CFR Part 271,
Subpart A. There is no deadline for applying for final authorization. A
State does not have to obtain interim authorization prior tq receiving final
authorization. However, interim authorization expires on January 26, 1985.
Any State with interim authorization must obtain final authorization by this
date or the program will revert to EPA. This guidance Manual explains how
to prepare the required final authorization application materials.
This Manual is divided into two sections. The first, "General", gives
an overview of the RCRA hazardous waste program, State program requirements
for final authorization and information on EPA's procedures for review of
applications for final authorization. The second is the "State Submittal
Guidance" which provides specific instructions for the State in developing
its application for final authorization. The Appendices contain guidance
documents and other Items that are pertinent to the development and review
of State applications for final authorization.
The Federal regulations in 40 CFR Part 271 Subpart A, promulgated pur-
suant to RCRA, require that State final authorization applications contain
the following:
1. Governor's letter requesting State program approval.
2. A Program Description which explains the program the State
proposes to administer together with any forms to be used to
administer the program under State law.
1.1-1
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3. A Statement from the State Attorney General (or the attorney
for those State or interstate agencies which have independent
legal counsel) that the laws of the State or interstate.
compact do provide adequate authority to carry out the pro-
gram the State proposes to administer.
4. A Memorandum of Agreement that provides for coordination and
cooperation between the State Director and the U.S. EPA
Regional Administrator regarding the administration and
enforcement of the authorized State regulatory program as
part of the national hazardous waste management program.
5. Copies of all applicable State statutes and regulations,
including those governing State administrative procedures and
interstate compacts, if relied on.
6. Documentation of public participation activities (i.e.,
notice and opportunities for comment on the State program
prior to submission of the application to EPA).
The chapters in the second section of this manual provide guidance, example
documents, and models for these authorization application elements.
1.1-2
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CHAPTER 1.2
DEFINITIONS
Terms frequently used in this manual are defined below. Other items
are defined in 40 CFR Parts 260 and 270.
Action Memorandum is a transmittal memorandum prepared by the EPA Regional
Office for the purposes of obtaining signatures from the appropriate concur-
ring EPA Headquarters offices.
Annual State Grant Work Program is an agreement negotiated annually between
the State and EPA Regional Office delineating the work activities to be
completed by the State as a condition of the RCRA grant for that year.
Application Approval Process is the procedure by which applications for
final authorization will be reviewed and determinations made within each
Regional Office and Headquarters.
Complete Application is the State's official application that has been
determined by EPA to be complete.
Draft Application is a preliminary version of the official application.
Headquarters Review Team is an established group of EPA staff representing
the concurring Headquarters offices (i.e., Office of Solid Waste, Office of
General Counsel, Office of Enforcement Counsel, and Office of Waste Programs
Enforcement) responsible for reviewing the draft applications and complete
applications.
Headquarters Review Team Leader is responsible for coordinating the efforts
of the Headquarters Review Team and coordinates the transmittal of a single
set of written review comments to the State Coordinator.
Official Application is the formal State application for final authorization
submitted to EPA by the Governor.
Phase I of Interim Authorization is based on that phase of the Federal
Hazardous Waste Management Program commencing on November 19, 1980, and
encompasses the identification and listing of hazardous wastes, the control
of generators and transporters, and interim status standards for treatment,
storage, and disposal facilities (40 CFR Parts 260, 261, 262, 263, and 265).
Phase II of Interim Authorization is based on that phase of the Federal
Hazardous Waste Management Program commencing in July of 1981 and encom-
passes permitting procedures and standards for hazardous waste treatment,
storage, and disposal facilities (40 CFR Parts 270, 124, and 264).
Pre-Application Statutory Review is the optional EPA review of State
statutes prior to the State's submission of a draft or official application.
1.2-1
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Regional Liaison is the Headquarters Review Team member that is designated
to review and coordinate comments for all State applications from a particu-
lar Region. The Regional Liaison should maintain day-to-day contact with
the State Coordinator.
Regional Workgroup is an established team of EPA Regional Office staff
responsible for reviewing the draft application and complete application.
The Workgroup must represent all of the concurring Divisions and Offices
(i.e., Office of Regional Counsel, and Air and Waste Management Division)
within the Regional Office.
State Coordinator is the EPA Regional Office contact responsible for coor-
dinatingandconsolidating the review comments generated by the Regional
Workgroup and the Headquarters' Review Team on the State submittal. The
State Coordinator should maintain day-to-day contact with the Regional
Liaison.
1.2-2
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CHAPTER 1.3
STATE PROGRAM REQUIREMENTS FOR FINAL AUTHORIZATION
INTRODUCTION
• •
RCRA establishes the basic standards that State hazardous waste pro-
grams must meet in order to qualify for final authorization. EPA further
interpreted these statutory requirements by promulgating regulations at 40
CFR Part 271. The regulations provide detailed requirements that State
programs must meet and set forth the form and content of the State's appli-
cation for final authorization. In reviewing State applications, EPA is
required to determine that States satisfy these statutory and regulatory
standards.
The purpose of this chapter is to provide more specific guidance con-
cerning how State programs can satisfy the final authorization requirements.
Appropriate, portions of the final authorization regulations are reproduced
here to present the State program requirements. In many cases, the regula-
tory requirements are explicit and need no further explanation. For other
regulatory provisions, additional discussion is provided in the text of this
chapter to more clearly define those State program features that will be
acceptable or necessary for final authorization.
A summary of the six RCRA standards that State programs must meet for
final authorization is presented in Table 1. Key EPA regulations generally
corresponding to these statutory standards are identified in the table. The
table also indicates the appropriate sectipn(s) of the State's application
where the State should demonstrate that it satisfies the RCRA requirements.
Chapters 2.2-2.4 in the second section of this manual describe how the
State's application should address these standards.
1.3-1
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Table 1
Requirements for Final Authorization
RCRA Standard
1. Equivalent Program -
§3006(b)
2. No Less Stringent
Program - §3009
3. Consistent Program -
§3006(b)
4. More Stringent Program -
§3009
5. Adequate Enforcement -
§3006(b); §7004(b)(l)
6. Notice and Hearing in the
Permit Process -
§7004(b)(l) and (2)
EPA
Regulations
(40 CFR)
271.9-13
271.9-14
271.4
Not
Applicable
271.15-16
271. 14
State Application
Program Description,
AU statement ana
MOA
Program Description and
AG Statement
Program Description
Program Description,
AG Statement and
MOA
Program Description,
AG Statement and
MOA
RCRA STANDARD #1 AND RCRA STANDARD *2 - EQUIVALENT AND
NO LESS STRINGENT PROGRAM
1. Requirements for Identification and Listing - §271.9
I271.S
itdaatf
The State program must control all the
hazardous wastes controlled under 40
CFR Part 261 and muat adopt a Hal of
hazardous wastes and set of
characteristics for identifying hazardous
wastes equivalent to those under 40 CFR
Part 281.
1.3-2
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The universe of wastes which the State controls must include all the
hazardous wastes controlled by the Federal program. The State must adopt a
list of hazardous wastes and a set of characteristics for identifying haz-
ardous wastes. The State's list and characteristics need not be identical
to EPA's as long as the State can demonstrate that it regulates all of the
wastes controlled by EPA. To the extent that the State's method for identi-
fying and listing wastes differs from the Federal approach, the State's
demonstration of equivalent coverage becomes more difficult, particularly
where the State's set of characteristics is different. A State is free to
control additional wastes if it desires. Furthermore, the State is not
required to adopt an equivalent "delisting" rcechanism in order to obtain
final authorization (see "More Stringent Program" discussion on page
1.3-10).
2. Requirements for Generators - §271.10
§ 271.10 Requlre«MniB for
hazardous waste.
(a) The State program moat cover all
generators corered by 40 CFR Part 282.
States mast require new generators to
contact the State and obtain an EPA
ideoticfiation number before they
perform any activity subject to
regulation under the approved State
hazardous waste program.
(b) The State shall have authority to
require and shall require all generators
to comply with reporting and
recordkeeping requirements equtraient
to those under 40 CFR 282.40 and 262.41.
States must require that generators keep
these records at least 3 yean.
(cj The State program must require
that generators who accumulate
hazardous wastes for short periods of
time comply with requirements that are
equivalent to the requirements for
acc&muiatiof hazardous wastes for.
short petted* of time under 40 CFR
282,34.
(d) The State program must require
that generators comply with
requirements that are equivalent to the
requirements for the packaging, labeling.
marking, and placarding of hazard jus
waste under 40 CFR 282.30 to 282.33. and
are consistent with relevant DOT
regulations under 4fl CFR Parts 17;., 173.
178 and 179.
(e) The State program shall provide
requirements respecting international
shipments which are equivalent to those
at 40 CFR 282.50, except that advance
notification of international shipments.
as required by 40 CFR 3ft2.50(b)(l). shall
be filed with the Administrator. The
State may require that a copy of suca
advance notice be filed with the State
Director, er may require equivalent
reporting procedures.
Note.—Such notices shall be mailed to the
Office of International Activities (A-106).
United States Environmental Protection
Agency. Washington. D.C. 20460.
(f) The State must require that all
generators of hazardous waste who
transport (or offer for transport) such
hazardous waste off-site:
(1) Use a manifest system that, ensures
that interstate and tntrastate shipments
of hazardous waste are designated for
delivery, and. in the case of intrastate
shipments, are delivered to facilities
that are authorized to operate under an
approved State program or the Federal
program:
(2) Initiate the manifest and designate
.on the manifest the storage, treatment.
or disposal facility to which the waste it
to be shipped;
1.3-3
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(3) Ensure that ali wastes offered for
transportation are accompanied by the
manifest except in the case of
shipments by rail or water specified in
40 CFR 2fl223 (c) and (d) and § 262-20 (e)
and (f). The State program shall provide
requirements for shipments by rail or
water equivalent to those under 40 CFR
§ 282.23 (c) and (d) and 8 263-20 (e) and
(0-
(4) Investigate instances where
manifests have not been returned by the
owner or operator of the designated
facility and report such instances to the
State in which the shipment originated.
(gj In the case of interstate shipments
for which the manifest has not been
returned, the State program must
provide for notification to the State in
which the facility designated on the
manifest is located and to the State in
which the shipment may have been
delivered (or to EPA in the case of
unauthorized States).
(h) The State must follow the Federal
manifest format (40 CFR 2fl2 21) and
may supplement the format to a limited
extent subject to the consistency
requirements of the Hazardous
Materials Transportation Act (49 U.S.C
1801 et seq.J.
The State must control all the generators that would be controlled by
the Federal program. The.state must have a manifest system that meets the
requirements of §271.10(f) - (h), including the requirement that generators
be held responsible for exception reporting. However, this does not pre-
clude the State agency from tracking manifests as it deems necessary as part
of its enforcement program.
3. Requirements for Transporters - §271.11
9 J71.11
(a) The State program must cover all
transporters covered by 40 CFR Part 263.
New transporters must b« required to
contact the State and obtain an EPA
identification number from the State
before they accept hazardous waste for
transport
(b) The State shall have the authority
to require and shall require all
transporters to comply with
recordkeeping requirements equivalent
to those found at 40 CFR 283.22, States
must require that records be kept at
least 3 years.
(c) The State must require the
transporter to carry the manifest during
transport except in the case of
shipments by rail or water specified bt
40 CFR 283.20 (e) and (f) and to deliver
waste only to the facility designated on
the manifest The State program shall
provide requirement for shipments by
rail or water equivalent to those under
40 CFR 283 JO (e) and (f).
(d) For hazardous wastes that are
discharged in transit the State program
must require that transporters notify
appropriate State, local and Federal
agencies of such discharges, and clean
up such wastes, or take action so that
such wastes do not present a hazard to
human health or the environment These
requirements shall be equivalent to
those found at 40 CFR 283.30 and 283.31.
1.3-4
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The State must control all transporters that are covered in the Federal
program.
4. Requirements for Facilities - §271.12
9 271.12 Requirements for hazardous
waate management faculties.
The State shall have standards for
hazardous waste management facilities
which are equivalent to 40 CFR Parts
284 and 266. These standard* shall
include:
(a) Technical standards for tanks,
containers, waste piles, incineration,
chemical, physical and biological
treatment facilities, surface
impoundments, landfills, and l*n«l
treatment facilities;-
(b) Financial responsibility during
facility operation:
(c) Preparedness for and prevention of
discharges or releases of hazardous
waste; contingency plans and
emergency procedures to be followed in
the event of a discharge or release of
hazardous waste;
(d) Closure and post-closure
requirements including financial
requirements to ensure that money will
be available for closure and post-closure
monitoring and maintenance;
(e) Groundwater monitoring;
(f) Security to prevent unauthorized
access to the facility:
(g) Facility personnel training;
(h) Inspections, monitoring,
recordkeeping. and reporting;
(i) Compliance with the manifest
system, including the requirements that
facility owners or operators return a
signed copy of the manifest to the
generator to certify delivery of the
hazardous waste shipment:
(j) Other requirements to the extent
that they are included in 40 CFR Parts
264 and 266.
The State must have technical permitting standards that are equivalent
to and no less stringent than the Federal standards at Part 264. For each
requirement in Part 264, the State needs to demonstrate that it has a regu-
latory counterpart that is at least as stringent as the Federal provision.
Due to the nature of the financial responsibility requirements of Subpart H,
separate guidance has been provided in Appendix B which presents acceptable
financial mechanisms for final authorization.
5. Requirements for Permitting - §§271.13 and .14
f 271.13 Requirements wftfc rtspect to
dptrmttappfl '
(a) State law must require permits for
owners and operators of all hazardous
waste management facilities required to
obtain a permit under 40 CFR Part 270
and prohibit the operation of any
hazardous waste management facility
without such a permit, except that
States may, if adequate legal authority
exists, authorize owners and operators
of any facility which would qualify for
interim status under the Federal
program to remain in operation until a
final decision is made on the permit
application. When State law authorizes
such continued operation it shall require
compliance by owners and operators of
such facilities with standards at least as
stringent as EPA's interim status
standards at 40 CFR Part 289.
1.3-5
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(b) The State must require all new
HWM facilities to contact the State and
obtain an EPA identification number
before commencing treatment storage.
or disposal of hazardous waste.
(c) All permits issued by the State
shall require compliance with the
standards adopted by the State under
S 271.12.
(d) All permits issued under State law
prior to the date of approval of final
authorization shall be reviewed by the
State Director and modified or revoked
and reissued to require compliance with
the requirements of this Part
f 271.14 Requiremants for permitting.
All State programs under this Subpart
must have legal authority to implement
each of the following provisions and
must be administered in conformance
with each; except that States are not
precluded from omitting or modifying
any provisions to impose more stringent
requirements:
(a) Section 270.1(cJ(l}—(Specific
inclusions);
(b) Section 270.4—(Effect of permit);
(c) Section 270.5—(Noncomplianca
reporting};
(d) Section 270.10—(Application for a
permit);
(e) Section 270.11—{Signatories);
(f) Section 270.12—(Confidential
information);
(g) Section 270.13—{Contents of Part
A);
(h) Sections 270.14-.2£—(Contents of
PartB);
[Note.—States need not use a two part
permit application process. The State
application process must however, require
information in sufficient detail to sattsrjr the
requirements of H 27O.lS-.2a.]
(i) Section 270.30—{Applicable permit
conditions);
0) Section 270.31—(Monitoring
requirements);
(k) Section- 270.32—(Establishing
permit conditions);
(1) Section 27O33—(Schedule of
compliance);
(m) Section 270.40—(Permit transfer);
(n) Section 270.41—(Permit
modification);
(o) Section 270.43—(Permit
termination);
(p) Section 270.50—(Duration);
(q) Section 270.60—(Permit by rule);
(r) Section 270.61—(Emergency *
permits);
(s) Section 270.64—(Interim permits
for UIC wells);
(t) Section 124.3(a>—(Application for a
permit);
(u) Section 124J (a), (c).(d),
(Modification of permits);
(v) Section 1244 (a). (d). and (e)—
(Draft permit);
(w) Section 124.S—(Fact sheets);
(x) Section 124.10 (a)(l)(ii). (a)(l)(ui).
(a)(l)(v). (b). (c), (d), and (e)—(Public
notice);
(y) Section 124.11—(Public comments
and requests for hearings);
(z) Section 124.12(a)—(Public
hearings): and
. (aa) Section 124.17 (a) and (c)—
(Response to comments).
[Notaw—States need not implement
provisions identical to the above lietad
provisions. Implemented provisions must.
however, establish requirementji at least &s
stringent as the cetresponding listed
provisions. While States may impos« more
stringent requirements, they may not make
one requirement more lenient as a tradeoff
for making another requirement more
stringent for example, by requiring that
public hearings be held prior to issuing aay
permit while reducing the amount of advance
notice of Mich e bearing.]
1.3-6
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All facilities that would be required to receive RCRA permits under the
Federal program must be required to receive permits from the State. Also,
those facilities without RCRA permits but that qualify for Federal "interim
status" must be required to comply with State permit conditions or the
State's analogue to Federal "interim status" standards which are at least as
stringent as the EPA regulations at Part 265.
The procedures that State programs need to provide for when issuing
permits are identified in §271.14. This regulation refers to aspects of the
Federal permitting program (Parts 270 and 124) which the State must nave
equal authority to address. States need not implement provisions identical
to all the requirements identified in §271.14; however, alternate provisions
must establish requirements that are at least as stringent as those in
Checklist V (see Appendix A).
Some of the requirements in Parts 270 and 124 are primarily procedural
in nature; that is, they bind the permitting authority (State or Federal) to
act in a certain manner but generally do not impose requirements on the
permittee or permit applicant. These requirements are noted in Checklist V.
Three examples of these procedural requirements are:
o The requirement for a 45-day public comment period on draft
permits (§124.10).
o The requirement to give public notice of the issuance of
emergency permits (§270.61),
•
o The requirement to broadcast notice of permit actions over
local radio stations.
It is preferable for the State to have these procedures in regulations
'in the same manner as the Federal program at Parts 270 and 124). However,
lacking adequate regulatory provisions, the State may be able to agree in
its MOA to carry out the permitting procedure in accordance with the re-
quirements for final authorization. In order for this approach to be ac-
ceptable, the State Attorney General must review the terms and conditions of
the MOA and certify that (1) the State has the authority to enter into the
agreement, (2) the State has the authority to carry out the agreement, and
(3) no applicable State statute (including the State administrative proce-
dure act) requires that the procedure be promulgated as a rule in order to
be binding. The MOA must then contain an unequivocal State commitment to
apply the procedures to each permit. Further, when a State will be process-
ing a permit application (or terminating or modifying a permit) using proce-
dures that are not specified in its regulations, notice of each draft permit
must inform the public that the procedures to be followed in processing the
permit are derived from the MOA as well as directly from State laws and
regulations. The State must agree in the MOA to include this information in
each notice.
The degree to which this approach may.be legally acceptable will vary
by State, depending on the State's legal authorities in the areas of haz-
ardous waste regulation and administrative procedures. The State may not
use the MOA to adopt procedures which directly conflict with State laws or
regulations (e.g., the State agrees to provide for a 45-day public comment
period even though the State's regulation sets a maximum 30-day comment
period).
1.3-7
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6. Variance, Waiver and Compliance Schedule Provisions
Many States have statutory or regulatory waiver, variance, or compli-
ance schedule provisions that allow the State to grant regulatory relief to
members of the regulated community on a case-by-case basis. Generally a
waiver relieves a party from complying with a particular requirement
altogether. A variance, on the other hand, changes the substantive require-
ment for compliance. Compliance schedules only change the date by which
compliance is required.
The Federal RCRA program allows few exemptions from its regulations.
The language of Section 3009- of RCRA precludes the use of variance and
waiver provisions by the State that would render the State program less
stringent than the Federal program. If the State's variance or waiver
authority is broader than that for the Federal program (i.e., it allows
greater deviation from the State's regulations than the Federal program
would), the State provision may be acceptable if the provision is of such a
nature that it can be invoked only at the discretion of the State agency.
In this case, the State must agree in its MOA not to use the waiver or
variance so that it would result in the imposition of any requirement less
stringent than comparable Federal program requirements. Additionally, the
Attorney General must certify that State law allows the State agency to
agree to limit its use of the waiver provision in this fashion. The State
must also agree in the MOA to inform EPA of the issuance of any variance or
waiver (see page 2.4-9).
If, however, the State's variance or waiver authority .is not discre-
tionary, that is, the State's statute or regulation would require the grant-
ing of variances in certain situations that would render the State program
less stringent, the option above would not be available as a means of satis-
fying §3009 and obtaining final authorization.
Section 270.33 of the Federal regulations provides that Federal permits
may specify schedules leading to compliance. States may similarly use their
authority to issue compliance schedules or temporary variances which operate
as compliance schedules analogous to the Federal program. Therefore, State
compliance schedule provisions analogous to §270.33 are not an impediment to
final authorization.
RCRA STANDARD 03 - CONSISTENT PROGRAM
§ 271.4
To obtain approval, a State program
must be consistent with the Federal
program and State programs applicable
in other States and in particular must
comply with the provision below. For
purposes of this section the phrase
"State programs applicable in other
States" refers only to those State
hazardous waste programs which have
received final authorization under this
part.
(a) Any aspect of the State program
which unreasonably restricts, impedes,
or operates as a ban on the free
movement across the State border of
hazardous wastes from other States for
treatment, storage, or disposal at
facilities authorized to operate under the
Federal or an approved State program
shall be deemed inconsistent.
1.3-8
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(b) Any aspect of State law or of the (c) If the State manifest system does
State program which has no basis in not meet the requirements of this Part,
human health or environmental the State program shall be deemed
protection and which acts as a inconsistent.
prohibition on the treatment, storage or
disposal of hazardous waste in the State
may be deemed inconsistent.
Section 3006(b) of RCRA requires that authorized State programs must be
"consistent with" the Federal RCRA program and other State programs. The
call for consistent State programs must be balanced with the provision of
§3009 that allows States to impose requirements which are more stringent
than the Federal regulations. For this reason, EPA will apply the consis-
tency test as narrowly as possible, limiting its application to only those
areas described in 40 CFR 271.4.
Under §1005 of RCRA, two or more States may enter into interstate
compacts or agreements to provide for cooperative effort and mutual assis-
tance for the management of hazardous (and/or solid) waste and the enforce-
ment of their respective laws relating thereto. No such compact or agree-
ment is binding on the parties to it until it has been approved by the
Administrator and Congress. Similarly, under §4 of the Low Level
Radioactive Waste Policy Act of 1980, States may enter into compacts as may
be necessary to provide for the establishment and operation of regional
disposal facilities for low level radioactive waste. These compacts do not
take effect until Congress has by law consented to the compact. Since the
Congress has explicitly provided in the statutes that these interstate
compacts are appropriate and since the compacts must individually receive
Congressional approval, the establishment of such interstate compacts will
not cause a State program to be deemed inconsistent.
The following sections briefly explain each consistency requirement
found in §271.4. For each of these requirements examples are presented to
illustrate questions that States may face regarding program consistency.
1. Interstate Movement of Wastes - §271.4(a)
This test of consistency applies to. State controls that restrict the
interstate transportation of waste. Examples of controls that are incon-
sistent under this requirement include:
o Stat« requirement (law/regulation/policy) which bans the
importation of hazardous waste from out of State.
o State requirement which sets geographic standards' of discrim-
ination (treats out-of-State waste differently than in-State
wastes), such as a State policy which denies permission to
import wastes unless there is insufficient waste management
capacity available in the State of waste origin.
o State exclusive reciprocity agreement which in effect allows
importation of wastes only from the States which are parties
to such agreements.
1.3-9
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States with these types of restrictions are strongly urged to repeal them.
If this is not possible, then the requirements must somehow be rendered
unenforceable. For example, if a State has an importation ban that it is
unable to repeal, the AG would have to issue a formal opinion saying that he
will not enforce the ban because it is unconstitutional.
2. Prohibition of Treatment, Storage, or Disposal - §271.4(b)
This test of consistency applies to aspects of the State law or program
which prohibit treatment, storage or disposal of hazardous wastes. Such
provisions will not be deemed inconsistent with RCRA if they are based on
protection of human health or the environment.
Siting. Some States have siting laws or regulations that provide for
the consideration of social, economic, financial, capacity, and other fac-
tors in site selection in addition to the human health or environmental
impacts. Such provisions will not be judged to be inconsistent with RCRA if
it is clear that siting decisions are to be based on health or environmental
protection as well as these other factors. Thus, siting criteria beyond
environmental protection are allowable.
A State siting provision that contradicts the express terms of §271.4
(for example, where the only basis for rejecting a site is economics), would
be an obstacle to final authorization. It is quite unlikely that State
siting provisions will have no basis in health or environmental protection.
EPA will review the State provisions that govern site selection, in-
cluding regulations and policies governing siting boards. If such provi-
sions on their face are not inconsistent (per §271.4), EPA does not intend
to go beyond the provisions to hypothesize how decisions will actually be
made.
3. Manifest System - §271.4(c)
This test of consistency applies to the State's use of a manifest
tracking system. The State must follow the EPA tracking system, including
the use of exception and discrepancy reports. States may build upon that
system by matching generator, transporter and facility copies of the mani-
fest at the State office and still be "consistent." An example of a provi-
sion which would be inconsistent under this requirement is a State require-
ment that the transporter carry a form with significantly more tracking
information than is Federally required or allowed. However, the State would
be free to require generators to send (e.g. mail) more detailed information
to the TSOF prior to receipt of the wastes.
RCRA STANDARD »4 - MORE STRINGENT PROGRAM
In keeping with the intent of §3009 of RCRA, no State is prohibited
from imposing requirements that are more stringent than EPA's. States may
have more extensive regulatory programs than required to obtain authoriza-
tion. It should be noted that where an approved State program has a greater
1.3-10
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scope of coverage than required by Federal law, the additional
not part of the Federally approved program (see §271. l(i)(2)).
coverage is
In addition, State programs need not include those Federal requirements
that serve to exempt persons from certain regulatory requirements. For
example, States are not required to provide an equivalent "delisting" mech-
anism in order to obtain final authorization. However, if the State program
does include a delisting mechanism, that mechanism must be no less stringent
that that of the Federal program in order for the State to obtain final
authorization. (PIG's 81-4 and 82-4 outline the policy on delisting during
interim authorization; this policy is the same for final authorization.)
RCRA STANDARD »5 - ADEQUATE ENFORCEMENT
§ 271.15 Requirement* for compliance
evaluation programs.
(a) State programs shall have
procedures for receipt, evaluation.
retention and investigation for possible
enforcement of all notices and reports
required of permittees and other
regulated persons (and for investigation
for possible enforcement of failure to
submit these notices and reports).
(b) State programs shall have
inspection and surveillance procedures
to determine, independent of
information supplied by regulated
persons, compliance or noncompliance
with applicable program requirements.
The State shall maintain:
(1) A program which is capable of
making comprehensive surveys of all
facilities and activities subject to the
State Director's authority to identify
persons subject to regulation who have
failed to comply with permit application
or other program requirements. Any
compilation, index or inventory of such
facilities and activities shall be made
available to the Regional Administrator
upon request:
(2) A program for periodic inspections
of the facilities and activities subject to
regulation. These inspections shall be
conducted in a manner designed to:
(ij Determine compliance or
noncompliance with issued permit
conditions and other program
requirements;
(ii) Verify the accuracy of information
submitted by permittees and other
regulated persons in reporting forms and
other forms supplying monitoring data;
and
(iii) Verify the adequacy of sampling.
monitoring* and other methods used by
permittees and other regulated persons
to develop that information:
(3) A program for investigating
information obtained regarding
violations of applicable program and
permit requirements: and
(4) Procedures for receiving and
ensuring proper consider a don of
information submitted by the public
about violations. Public effort in
reporting violations shall be encouraged.
and the State Director shall make
available information on reporting
procedures.
(c) The State Director and State
officers engaged la compliance
evaluation shall have authority to enter
any site or premises subject to
regulation or in which records relevant
to program operation are kept in order
to copy any records, inspect monitor or
otherwise investigate compliance with
the State program including compliance
with permit conditions and other
program requirements. States whose law
requires a search warrant before entry
conform with this requirement
(d) Investigatory inspections shall be
conducted, sample! shall be taken and
other information shall be gathered in a
manner (e.g., using proper "chain of
custody" procedures) that will produce
evidence adoxissibie in an enforcement
proceeding or in court
1.3-11
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§ 271.16 Requirements for enforcement
authority.
(a) Any State agency administering a
program shall have available the
following remedies for violations of
State program requirements:
(1) To restrain immediately and
effectively any person by order or by
suit in State court from engaging in any
unauthorized activity which is
endangering or causing damage to
public health or the environment.
{Note.—Thi* paragraph requires that State*
have • mechanism (e.g, an administrative
cease and desUt order or the ability to seek a
temporary restraining order) to stop any
unauthorized activity endangering public
heaith or the environment.)
(2) To sue in courts of competent
jurisdiction to enjoin any threatened or
continuing violation of any program
requirement including permit
condition*, without the necessity of a
prior revocation of the permit
(3) To access or sue to recover in
court civil penalties and to seek criminal
remedies, including fines, as follows:
(i) Civil penalties shall be recoverable
for any program violation in at least the
amount of &&000 per day.
(u) Criminal remedies shall be
obtainable against any person who
knowingly transports any hazardous
waste to an unpermitted facility; who
treats, stores, or disposes of hazardous
waste without a permit; or who makes
any false statement or representation in
any application, label, manifest record.
report, permit or other document filed.
maintained, or used for purposes of
program compliance. Criminal fines'
shall be recoverable in at least the
amount of $10,000 per day for each
violation, and imprisonment for at least
six months shall be available.
(b)(l) The maximum civil penalty or
criminal fines (as provided in paragraph
(a)(3) of this section) shall be assessable
for each instance of violation and. if the
violation is continuous, shall be
assessable up to the maximum amount
for each day of violation.
(2) The burden of proof and degree of
knowledge or intent required under
State law for establishing violations
under paragraph (aX3) of this section.
shall be no greater than the burden of
proof or degree of knowledge or intent
EPA must provide when it brings an
action under the Act.
(Note.—For example, this requirement u
not met if State law includes mental state aa
an element of proof for civil violations.)
(c) Any civil penalty assessed, sought
or agreed upon by the State Director
under paragraph (a)(3) of this section
shall be appropriate to the violation. A
civil penalty agreed upon by the State
Director in settlement of administrative
or judicial litigation may be adjusted by
a percentage which represents the
likelihood of success in establishing the
underlying violation(s) in such litigation.
If such civil penalty, together with the
costs of expeditious compliance, would
be so severely disproportionate to the
resources of the violator as to jeopardize
continuance in business, the payment of
the penalty may be deferred or the
penalty may be forgiven in whole or
part as circumstances warrant In the
case of a penalty for a failure to meet a
statutory or final permit compliance
deadline, "appropriate to the violation."
as used in this paragraph, means a
penalty which is equal to:
(1) An amount appropriate to address
the harm or risk to public health or the
environment; plus
(2) An amount appropriate to remove
the economic benefit gained or to be
gained from delayed compliance: plus
(3) An amount appropriate as a
penalty for the violator's degree of
recalcitrance, defiance, or indifference
to requirements of the law: plus
(4) An amount appropriate to recover
unusual or extraordinary enforcement
costs thrust upon the public minus
1.3-12
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(5) An amount if any. appropriate to
reflect any part of the noncompliance
attributable to the government itself;
and minus
(8) An amount appropriate to reflect
any part of the noncompliance caused
by factors completely beyond the
violator's control (e.g., floods, fires).
[Note.—In addition to the requirements of
this paragraph, the State may have other
enforcement remedies. The following
enforcement options, while not mandatory,
are highly recommended:
Procedures for assessment by the State of
the costs of investigations, inspections, or
monitoring surveys which lead to the
establishment of violations:
Procedures which enable the State to
assess or to sue any persons responsible for
unauthorized activities for any expenses
incurred by the State in removing, correcting.
or terminating any adverse effects upon
human health and the environment resulting
from the unauthorized activity, whether or
not accidental:
Procedures which enable the State to sue
for compensation for any loss or destruction
of wildlife, fish or aquatic life, or their
habitat and for any other damages caused by
unauthorized activity, either to the State or to
any residents of the State who are directly
aggrieved by the unauthorized activity, or
both: and
Procedures for the administrative
assessment of penalties by the Director.]
(d) Any State administering a program
shall provide for public participation in
the State enforcement process by
providing either.
(1) Authority which allows
intervention as of right in any civil
action to obtain remedies specified in
paragraphs (a) (1), (2) or (3) of this
section by any citizen having an interest
which is or may be adversely affected;
or
(2) Assurance that the State agency or
enforcement authority will:
(i) Investigate and provide written
responses to ail citizen complaints
submitted pursuant to the procedures
specified in 5 271.15(b)(4);
(ii) Not oppose intervention by any
citizen when permissive intervention
may be authorized by statute, rule, or
regulation; and
(iii) Publish notice of and provide at
least 30 days for public comment on any
proposed settlement of a State
enforcement action.
Once authorized, the State program operates in lieu of the Federal pro-
gram. EPA retains its right to exercise its enforcement responsibilities in
authorized States, though the requirements EPA enforces in that case are the
State's requirements.
40 CFR 271.16(a)(2) requires States to have authority to enjoin viola-
tions of State hazardous waste regulations and permits. This provision
specifically requires that States applying for final authorization have the
authority "to sue in courts of competent jurisdiction to enjoin any
threatened or continuing violation of any program requirement, including
permit conditions, without the necessity of a prior revocation of the per-
mit." Authority over threatened violations is required so that States may
enjoin regulatory violations about to occur even though the threatened vio-
lations may not rise to the level of an imminent hazard (§271.16(a)(l)).
1.3-13
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Questions have arisen about what type cf ''egal •ai:tno-->y States must
demonstrate to comnlv with this orovision. Several oof'on? ?.re available.
First, the State analogue to RCRA §3008 may provide tne necessary autncrity.
This authority may be explicit or, as in the case of Section 3008, implicit
in the authority to enforce the Subtitle C regulations. Alternatively, it
is sufficient for a State to establish that general authority or case law
authority exists for a State court of competent jur-'sc:cf'or to grant the
State injunctive relief (whether preliminary or permanent) in cases involv-
ing threatened violations. Stated another way, if a State Attorney General
is able to demonstrate that the State courts are generally empowered to
grant injunctive relief and that such relief could be granted to the State
in a suit to enjoin a threatened violation of a program requirement or per-
mit condition, then the State program would comply with §271.16(a)(2).
The minimum requirements for State enforcement penalties are specified
in §271.16(a)(3)(i). These penalty levels are necessary to ensure effective
State enforcement programs and to minimize the need for EPA to take civil or
criminal enforcement actions in an authorized State. Therefore, the State
must demonstrate that it has the authority to seek the penalty levels re-
quired by §271.16(a)(3)(i). However, the actual fine which will be sought
or ultimately recovered in an enforcement case is not a final authorization
issue.
The requirement in §271.16(d) concerning public participation in the
enforcement processs may be satisfied through agreement in the MOA between
the State and EPA accompanied by a certification by the State Attorney
General (see page 2.3-10). Also note that §271.16(d) does, not require the
State program to have a citizen suit provision comparable to EPA's (§7002 of
RCRA). The State is not required to have statutory or regulatory authority
equivalent to §7002 in order to obtain final authorization.
RCRA STANDARD »6 - NOTICE AND HEARING IN THE PERMIT PROCESS
RCRA §7004(b)(2) stipulates that no State permit program may be author-
ized unless it: (1) provides notice of its intent to issue a permit through
publication in "major local newspapers of general circulation": (2) broad-
casts such notice over local radio stations; (3) provides written notice to
certain State and local government agencies; (4) prov4des for at least, a 45
day public comment period; and (5) holds an informal public hearing if one
is requested during the comment period. (See also §271.14.) As is the case
with other procedural aspects of the permitting process, if the State has
the authority, it may agree in its MOA to adhere to these procedures if they
are not required by the State's regulations. Further discussion of such
agreements is provided on page 1.3-7.
The State need not use the term "informal public hearing"; the per-
tinent requirement is that the State hearing procedure be of tne same nature
of that described in RCRA §7004(b)(2) and further defined in 40 CFR 124.12.
The RCRA hearing is one that is purely legislative in nature (i.e., not an
"evidentiary hearing" as provided for in Subparts E or F of 40 CFR Part 124)
and at which oral or written statements and data concerning the draft permit
may be submitted by any interested person. Additional discussion can be
founa at 45 FR 33405 and 33406 (May 19, 1980).
1.3-14
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Where a State employs hearings of the nature of an "evidentiary hear-
l", it should ensure that its evidentiary procedures also contain proce-
es analogous to those in 40 CFR 124.12, or else hold an additional "in-
mal" hearing.
1.3-15
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CHAPTER 1.4
APPROVAL PROCESS
Federal Requirement
9 271.30 Approval process.
(a) Prior to submitting an application
to EPA for approval of a State program.
the State shall issue public notice of its
intent to seek program approval from
EPA. This public notice shall:
(1) Be circulated in a manner
calculated to attract the attention of
interested persona including:
(i) Publication in enough of the largest
newspapers in the State to attract
statewide attention: and
(u) Mailing to persona on the State
agency mailing list and to any other
persons whom the agency has reason to
believe are interested:
(2) Indicate when and where the
State's proposed submission may be
reviewed by the public;
(3) Indicate the cost of obtaining a
copy of the submission:
(4) Provide for a comment period of
not less than 30 days during which time
interested members of the public may
express their views on the proposed
program;
(5) Provide that a public hearing will
be held by the State or EPA if sufficient
public interest is shown or.
alternatively, schedule such a public
hearing. Any public hearing to be held
by the State on its application for
authorization shall be scheduled no
earlier than 30 days after the notice of
hearing is published;
(6) Briefly outline the fundamental
aspects of the State program; and
[7] Identify a person that an interested
member of the public may contact with
any questions.
(b) If the proposed State program is
substantially modified after the public
comment period provided in paragraph
(a)(4) of this section, the State shall
prior to submitting its program to the
Administrator, provide an opportunity
for further public comment in
accordance with the procedures of
paragraph [a] of this section. Provided,
that the opportunity for further public
comment may be limited to those
portions of the State's application which
have been changed since the prior
public notice.
(c)'After complying with the
requirements of paragraphs (a) and (b)
of this section, the State may submit, in
accordance with 9 271.5. a proposed
program to EPA for approval Such
formal submission may only be made
after the date of promulgation of the last
component of Phase IL The program
submission shall include copies of all
written comments received by the State.
a transcript recording, or summary of
any public hearing which was held by
the State, and a responsiveness
summary which identifies- the public
participation activities conducted.
describes the matters presented to the
public, summarizes significant
comments received and responds to
these comments.
1.4-1
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(d) Within 90 days from the date of
receipt of a complete program
submission for final authorization, the
Administrator shall make a tentative
determination aa to whether or not he
expects to grant authorization to the
State program. If the Administrator
indicates that he may not approve the
State program he shall include a general
statement of his areas of concern. The
Administrator shall give notice of this
tentative determination in the Federal
Register and in accordance with
paragraph (a)(l) of this section. Notice
of the tentative determination of
authorization shall also:
(1) Indicate that a public hearing will
be held by EPA no earlier than 30 days
after notice of the tentative
determination of authorization. The
notice may require persons wishing to
present testimony to file a request with
the Regional Administrator, who may
cancel the public hearing if sufficient
public interest in a hearing is not
expressed.
(2) Afford the public 30 days after the
notice to comment on the State's
submission and the tentative
determination: and
(3) Note the availability of the State
submission for inspection and copying
by the public.
(e) Within 90 days of the notice given
pursuant to paragraph (d) of this section.
the Administrator shall make a final
determination whether or not to approve
the State's program, taking into account
any comments submitted The
Administrator will grant final
authorization only after the effective
date of the last component of Phase II.
The Administrator shall give notice of
this .final determination in the Federal
Register and in accordance with
paragraph (a)(l) of this section. The
notification shall include a concise
statement of the reasons for this
determination, and a response to
significant comments received.
Introduction
The approval process for State authorization is described generally in
Section 3006(b) of RCRA. EPA regulations at 40 CFR 271.20 (shown above)
define the approval process in greater detail. (Also see .§271.5(b) and
(c).) The purpose of this chapter is to present the procedures that will be
used by the EPA Headquarters and Regional Offices to review applications for
final authorization of State hazardous waste management programs. By set-
ting forth these procedures in detail the guidance is intended to:
Make the States aware of the EPA approval process;
Provide for Regional and national consistency;
Assign responsibilities to specific groups in both the Region
and Headquarters; and
Minimize the review and approval time frames.
The guidance suggests an early review of State hazardous waste statutes in
order to identify major deficiencies so that the States will have sufficient
time to take the necessary legislative actions before the interim authoriza-
tion period expires. Guidance is also provided on the review procedures and
responsibilities for draft and official State applications.
1.4-2
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CHAPTER 1.4
APPROVAL PROCESS
Federal Requirement
9 271.20 Approval prooMe.
(a) Prior to submitting an application
to EPA for approval of a State program,
the State shall issue public notice of its
intent to seek program approval from
EPA. This public notice shall:
(1) Be circulated in a manner
calculated to attract the attention of
interested persons including:
(i) Publication in enough of the largest
newspapers in the State to attract
statewide attention: and
(ii) Mailing to persona on the State
agency mailing list and to any other
persons whom the agency has reason to
believe are interested:
(2) Indicate when and where the
State's proposed submission may be
reviewed by the public:
(3) Indicate the cost of obtaining a
copy of the submission:
(4) Provide for a comment period of
not less than 30 days during which time
interested members of the public may
express their views on the proposed
program;
(5) Provide that a public hearing will
be held by the State or EPA if sufficient
public interest is shown or.
alternatively, schedule such a public
hearing. Any public hearing to be held
by the State on its application for
authorization shall be scheduled no
earlier than 30 days after the notice of
hearing is published;
(6) Briefly outline the fundamental
aspects of the State program: and
(7) Identify a person that an interested
member of the public may contact with
any questions.
(b) If the proposed State program is
substantially modified after the public
comment period provided in paragraph
(a)(4) of this section, the State shall.
prior to submitting its program to the
Administrator, provide an opportunity
for further public comment in
accordance with the procedures of
paragraph (a) of this section. Provided,
that the opportunity for further public
comment may be limited to those
portions of the State's application which
have been changed since the prior
public notice.
(c)1 After complying with the
requirements of paragraphs (a) and (b)
of this section, the State may submit, in
accordance with 5 271.5, a proposed
program to EPA for approval. Such
formal submission may only be made
after the date of promulgation of the last
component of Phase IL The program
submission shall include copies of all
written comments received by the State.
a transcript recording, or summary of
any public hearing which was held by
the State, and a responsiveness
summary which identifies1 the public
participation activities conducted.
describes the matters presented to the
public, summarizes significant
comments received and responds to
these comments.
1.4-1
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(d) Within 90 days from the date of
receipt of a complete program
submission for final authorization, the
Administrator shall make a tentative
determination as to whether or not he
expects to grant authorization to the
State program. If the Administrator
indicates that he may not approve the
State program he shall include a general
statement of his areas of concern. The
Administrator shall give notice of this
tentative determination in the Federal
Register and in accordance with
paragraph (a)(l) of this section. Notice
of the tentative determination of
authorization shall also:
(1) Indicate that a public hearing will
be held by EPA no earlier than 30 days
after notice of the tentative
determination of authorization. The
notice may require persons wishing to
present testimony to file a request with
the Regional Administrator, who may
cancel the public hearing if sufficient
public interest in a hearing is not
expressed.
(2) Afford the public 30 days after the
notice to comment on the State's
submission and the tentative
determination: and
(3) Note the availability of the State
submission for inspection and copying
by the public.
(e) Within 90 days of the notice given
pursuant to paragraph (d) of this section.
the Administrator shall make a final
determination whether or not to approve
the State's program, taking into account
any comments submitted. The
Administrator will grant final
authorization only after the effective
date of the last component of Phase IT.
The Administrator shall give notice of
this .final determination in the Federal
Register and in accordance with
paragraph (a)(l) of this section. The
notification shall include a concise
statement of the reasons for this
determination, and a response to
significant comments received.
Introduction
The approval process for State authorization is described generally in
Section 3006(b) of RCRA. EPA regulations at 40 CFR 271.20 (shown above)
define the approval process in greater detail. (Also see §271.5(b) and
(c).) The purpose of this chapter is to present the procedures that will be
used by the EPA Headquarters and Regional Offices to review applications for
final authorization of State hazardous waste management programs. By set-
ting forth these procedures in detail the guidance is intended to:
Make the States aware of the EPA approval process;
Provide for Regional and national consistency;
Assign responsibilities to specific groups in both the Region
and Headquarters; and
Minimize the review and approval time frames.
The guidance suggests an early review of State hazardous waste statutes in
order to identify major deficiencies so that the States will have sufficient
time to take the necessary legislative actions before the interim authoriza-
tion period expires. Guidance is also provided on the review procedures and
responsibilities for draft and official State applications.
1.4-2
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Section 3006(b) of RCRA provides that a tentative determination regard-
ing whether the Agency expects to approve the State program must be an-
nounced in the Federal Register within 90 days of receipt of the State's
official application. Then, within 90 days of this announcement the final
decision must be published. Therefore, it is critical that timely reviews
be conducted of the State's official application.
The final authorization approval process differs from the interim
authorization process in the two decision notices discussed above and in the
State's public comment period on its application before it is submitted to
EPA. Aside from these major differences, States with interim authorization
should find the final authorization approval process familiar.
It should be emphasized that the approval process and timetables pre-
sented in this chapter are designed to move the State into final authori-
zation in a timely manner and with confidence. Approaches which differ from
the one presented here may result in delay (see §271.5(d)).
*
General Schedule
The goal of this approval process is to confer final authorization to
qualified State hazardous waste programs expeditiously and with the statu-
torily required public participation. The final authorization approval
process may begin as early as July 26, 1982, the date that the beginning of
final authorization was announced in the Federal Register.' This date also
marks the beginning of the period during which a State may retain interim
Authorization for Phase I, Phase II A, Phase II 8 and/or Phase II C. On
January 26, 1985 interim authorization expires. Therefore, while a State
may apply for, and be granted, final authorization effective any time after
January 26, 1983, interim authorization programs will revert to EPA on
January 26, 1985, if the State has not received final authorization.
The first step (which is optional) is for the State program to submit
its laws to EPA for a pre-application statutory review. Subsequently, the
State prepares a draft application for final authorization following the
guidance provided in this Manual and submits it to EPA for review. After
EPA review and comment, the State then redrafts its application in response
to EPA coiMMnts and Issues a public notice of its intent to seek program ap-
proval. The State must provide a public comment period of at least 30 days
following this notice and, if sufficient interest is shown, a public hearing
must be held.
Once the State has addressed the public comments, it may formally
submit its official application for final authorization to EPA. EPA will
notify the State within 30 days as to whether the application is complete.
If the application is deemed complete EPA has 90 days from the receipt of
the application to announce in the Federal Register its tentative determina-
tion regarding the approval of the State program. A public comment period
of at least 30 days follows the tentative decision, and a public hearing is
held if sufficient public interest is expressed. After considering all of
the comments submitted, within 90 days of the tentative decision EPA must
announce in the Federal Register its final decision whether or not to ap-
prove the State program.
1.4-3
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Figures 1 and 2 illustrate typical timetables of events that will be
followed when a State applies for final authorization. States are strongly
encouraged to submit their draft applications as early as possible in order
to avoid a lapse in their authorization. This is of special concern since
review of the draft may indicate the need for time-consuming regulatory or
statutory changes that must be completed prior to final authorization.
Regional and Headquarters Review Teams
Regional Workgroups and Headquarters Review Teams have been established
to assist States with their applications and to coordinate and manage the
Agency's review and approval of State submittals. The development of these
two groups as the respective Regional and Headquarters focal points is
designed to involve all parties interested in State program authorization
and to ensure consistency in Agency comments to the States.
Each Regional Office has a Regional Workgroup coordinated, directed and
chaired by the Waste Management Branch. As a minimum, the Regional Work-
groups are composed of members from the Hazardous Waste Branch and the
Regional Counsel/Enforcement Office. Each State is assigned a Coordinator
from the Regional Office. The State Coordinator will be responsible for
coordinating and consolidating the review comments generated by the Regional
Workgroup and the Headquarters Review Team on various aspects of the State
subfflittal.
Three Headquarters Review teams have been established with specific
geographic responsibility:
Northern States Review Team - Regions 1, 2, 3
Southern States Review Team - Regions 4, 6, 9
Western States Review Team - Regions 5, 7, 8, 10
The Headquarters Review Teams are composed of personnel from the Office of
Solid Waste and Emergency Response (OSWER), the Office of General Counsel
(OGC), and the Office of Enforcement Counsel (OEC). The Review Teams are
coordinated, directed and chaired by the State Programs Branch of the Office
of Solid Waste. For each team a Team Leader has been designated with re-
sponsibility for coordinating the efforts of the team. Also, .each Region is
assigned a Regional Liaison from the Office of Sol id"Waste who is responsi-
ble for coordinating and consolidating the review comments generated by the
Headquarters Review Team.
Frequent contact should be maintained between the Regional Workgroup
members and their respective counterpart offices in Headquarters (e.g., the
Regional Waste Management Branch and the Office of Solid Waste, the Regional
Counsel/Enforcement Office and the Office of General Counsel as well as the
Office of Enforcement Counsel). This is necessary in order to ensure that
concurring offices remain informed of the positions taken during the review
process. The success of the authorization process and cooperation between
EPA and the State depends on EPA's effectiveness in communicating in a way
that accurately reflects the Agency's position on significant issues.
1.4-4
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Application Review Process
The application review process is divided into three distinct stages:
1. Pre-application statutory review
2. Draft application
3. Official application
For each stage of the review process, the specific activities and respon-
sibilities of the Headquarters Review Team and Regional Workgroup have been
defined and time frames for these activities have been established.
EPA's review of State submittals should result in a clear and uniform
Agency position. Therefore, EPA should provide the States with a single
consolidated set of comments. To accomplish this, the Regions and Headquar-
ters will coordinate their comments via the State Coordinators in the Re-
gional offices.
The Regional Work Group and the Headquarters Review Team are the focal
points for the review of draft and official applications. Upon receipt of
an application, the State Coordinator logs in and transmits copies to the
Headquarters Review Team Leader and the Regional-Workgroup for review. The
Team leader in turn distributes copies to members of his Review Team.
Headquarters Review Team members and Regional Workgroup members are respon-
sible for ensuring that comments are submitted to the Team Leader on time.
Headquarters will provide a detailed set of comments "on the draft and
official applications that will be transmitted to the State Coordinator by
the Review Team Leader. These comments will also be summarized and ad-
dressed to the Regional Administrator jointly under the signatures of the
Assistant Administrator for Solid Waste and Emergency Response, and the
Associate Administrator for Legal and Enforcement Counsel (OLEC).
The State Coordinator will combine Headquarters comments with the
comments generated by the Regional Office into one set of comments. The
State Coordinator will resolve with Headquarters any conflicts in consolid-
ating comments before transmitting them to the States. If Headquarters'
comments on the draft application are accommodated and no new issues are
raised by the public during the public comment periods or by the State in
the complete application, the Regional Office should expect Headquarters1
concurrence on the complete application in an expedited manner. However,
failure of the State Coordinator to transmit Headquarters' review comments
to the State, or failure by the State to adequately address the issues
raised in such comments, could result either in a delay in final concurrence
or in non-concurrence by the Headquarters offices.
Final approval of complete applications will be made by the Regional
Administrator with the Assistant Administrator for OSWER and the Associate
Administrator for OLEC (see EPA Delegation 8-7) concurring in the action.
1.4-5
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Pre-Application Statutory Review
The interim authorization period ends on January 26, 1985. Therefore,
it is critical that deficiencies in State laws are identified as early as
possible so States will have adequate time to make the necessary legislation
modifications for final authorization before the .interim authorization
period expires. Therefore, EPA has established an optional pre-application
review to help States identify changes that may be needed in their laws.
EPA will review State statutes as quickly as resources allow, recognizing
the timeliness of this effort.
States are urged to provide to EPA their hazardous waste statutes and
other statutes that may be invoked to carry out the hazardous waste program
(such as an Administrative Procedure Act), including any proposed or pending
legislative actions. (Submission of consolidated statutes reflecting all
amendments to the original legislation would help expedite EPA's review).
The State should complete the "State Legislation Checklist" (see Chapter
2.7) and include it in their submission. The Statutory review will cover
the specific areas delineated in the "State Legislation Checklist."
Recognizing that Agency attorneys cannot be experts on all State laws,
the State Attorney General may wish to provide a draft statement, explana-
tory discussion, or supporting evidence regarding State statutory authority.
Otherwise, EPA will perform its review on the face of the State statutes.
Review of the State statutes should enable early identification of
major statutory problems. However, without simultaneous re'view of the State
regulations and the formal Attorney General's Statement, EPA cannot assure
that all statutory deficiencies will surface at this earry stage. State
statutes must provide authority not only to develop a program which meets
EPA requirements, but also to promulgate the specific regulations which the
State has chosen (or will choose) to issue. Without the State's regula-
tions, EPA cannot comment on whether the States's legislation would author-
ize the specific regulatory program which the State has adopted or will
adopt.
Many:of these reviews will be expedited by EPA's familiarity with the
State programs gained through the interim authorization process. However,
the requirements for State programs are different for final 'authorization.
Many States identified in their Authorization Plan statutory and regulatory
changes necessary for final authorization; however, it is possible that
additional changes may be required if the EPA review identifies previously
undiscovered inadequacies.
Consolidated Regional and Headquarters comments will be transmitted by
the Regional Administrator to the State Director.
Draft Application
The development and review of a draft application is an essential part
of the State approval process. A well-prepared and thoroughly reviewed
draft application (properly revised, if necessary) should significantly
1.4-6
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reduce the time needed to perform the formal review and approval of the com-
plete application. This process should also result .in a sound document to
be presented to the public as the State's proposed application to EPA and
should reduce the possibility of subsequent major changes to the application
that would require additional opportunity for public comment. The review of
the draft application should be expedited by the pre-application review of
State laws.
The draft application should contain all of the elements of a complete
application except for the Governor's letter and the "Showing of Public
Participation" (see Chapter 2.5). However, the State may wish to make
special arrangements with the Regional Office to review partial drafts of
their application prior to the submission of the complete draft application.
Any deficiencies identified in the preapplication statutory review should be
corrected or explained in the draft application. Additionally, any changes
made by the State since prior reviews should be clearly identified to facil-
itate EPA's review. Since the application is in draft form, there is no
need for signatures on the various component documents (e.g., MOA, AG
Statement).
Figure 1 is a flow diagram that summarizes the review procedure for the
draft application. As indicated in this figure, the goal is to review the
draft applications within 60 days. However, this timetable assumes that a
pre-application statutory review of the statutes has been completed. Other-
wise the review may require additional time and effort.
State Public Notice and Hearing
Prior to submitting an official application to EPA, the State must give
public notice of its intent to seek authorization and make available to the
public the State's proposed submission. If sufficient public interest is
shown, a public hearing must be held by the State. At the request of the
State, an EPA representative may participate as a Panel member at the hear-
ing. The attendance by EPA will help assure a mutual understanding between
the State and EPA regarding public sentiment toward the application. The
official application should contain modifications or responses based on the
public comments. A transcript or summary of the public hearing, copies of
all written comments received by the State and the"State's responsiveness
summary, must be included in the State's official application (see Chapter
2.5). For further details regarding the State public notice and hearing see
§271.20(a) and (b).
Official Application
The official application represents the State's formal submission for
final authorization of its hazardous waste management program. The applica-
tion must contain all of the elements described in §271.5 (see Chapters
2.1 - 2.6). To expedite the review of the application, the State is urged
to identify changes made since the draft application. Upon receipt of the
application, the State Coordinator should immediately transmit copies to all
Regional reviewers and to the Headquarters' Review Team Leader. The review
1.4-7
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Figure 1
Draft Application Review Process
Calendar Day
Region
Headquarters
35
45
50
55
60
Log and T
Draft App
'ransmlt
11cat1on
1
Workgroup Review
I
1
Comments to State
Coordinator
-
.
Draft Consolidated
Comments
'
Finalize
•
Comments
|
Transmit Comments
to State
-
Review Team Leader
I
Review Team Review
1
Comments to Regional
Liaison
i
Team Comments
From Team Leader
AA Summary
of Comments
1.4-8
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should commence at once since the review timetables must be adhered to
unless the application is deemed to be incomplete. The major review activi-
ties and the EPA documents resulting from the review are described below.
The review schedule for the official application is diagrammed in Figure 2.
It should be noted that EPA and the State may extend the statutory review
period by agreement (see §271.5(d)). Also, any time the State's application
is materially changed, the statutory review period begins again upon receipt
of the revised submission (see §271.5(c)). This may require the State to
provide another round of public comment before it resubmits its. official
application.
1. Completeness Determination
Once the official application has been received in the Regional Office
and transmitted to all Regional and Headquarters reviewers, the State
Coordinator must evaluate the application for completeness using the check-
list in Chapter 2.8. The Regional Administrator must notify the State by
letter within 30 days as to whether or not the submittal is complete. To
accomplish this the letter should be mailed by Day 25 (see Figure 2).
If the application is found to be complete, the 90 day review process
is deemed to have begun on the day EPA received the State's submittal.
.However, if the application is found to be incomplete, the review period is
suspended until all the necessary information is submitted to EPA, at which
time the 90 day review period is restarted (see §271.5(b)). If the appli-
cation is incomplete, the information required to complete the application
should be identified in the Regional Administrator's letter to the State.
2. Comments
The comments from the Regional and Headquarters reviewers should dis-
cuss whether the State should be authorized based on the information sub-
mitted in its application. These comments should clearly delineate any
problem areas which must be corrected before the State can be authorized.
Also, the comments should provide suggestions or recommended modifications
to the State's application to help rectify any deficiencies discovered in
the review process. Workgroup and Review Team Comments should be submitted
to the State Coordinator by Day 20 so the Coordinator can begin drafting a
letter to the State and an Action Memorandum and a Federal Register notice
containing the Agency's tentative decision. Headquarters will transmit the
AA Summary of Comments by Day 27 indicating Headquarters' official position
on the application. This summary of comments should assist the State Coor-
dinator in finalizing the Action Memorandum and the Federal Register Notice.
3. Action Memorandum
Once the Headquarters Review Team and the Regional Workgroup have
commented on the State's submittal, an Action Memorandum from the Regional
Administrator to the Assistant Administrator for OSWER and the Associate
Administrator for OLEC will be prepared by the State Coordinator with con-
currence of the Regional Workgroup members. This Action Memorandum must
contain a specific recommendation with respect to the tentative decision
1.4-9
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Figure 2
Official Application Review Process
Calendar Day
1
2
3
17
20
25
26
27
35
Headquarters
50
60
70
80
90
Log and Transmit
Application
Workgroup Review
\
«
r
Comments to the State
Coordinator
Completeness Letter
to State
+
Draft Consolidated
Comments
*
F1nal'1ze
Comments
*
Transmit Comments
to State
Review Team Leader
Review Team Review
*
Comments to Regional
Liaison
*
Team Comments
From Team Leader
•
r
AA Summary
of Comments
*
Draft Action Memo
and PR Notice
of Tentative Decision
•
r
Workgroup Review
*
>
Comments to
State Coordinator
*
Finalize Action Memo
and FR
Notice
Public Comment Period
1
I
.4-10
Review Team
Leader
*
Obtain AA Concurrences
*
Publish FR Notice
of Tentative
Determination
-------
Calendar Day
90
120
134
135
140
142
155
160
170
180
figure 2 (continued)
Official Application .Review Process
Region
Headquarters
Public Comment Period
*
Public Hearing
*
State Coordinator
Responds to
Public Comments
i
Workgroup Review
of Response to
Comments
1
Workgroup Comments to
State Coordinator
*
Revised Response
to Comments
I
Prepare Action Memo
and FR Notice of
Final Decision
1
Finalize Action Memo
and FR Notice
Publish FR Notice
Determination
•
_ Review Team Leader
Review Team Leader
i
*
Obtain AA Concurrences
' i
Publish FR Notice
of Final Decision
1.4-11
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regarding the approval of the application. It should also highlight speci-
fic questions or problem areas and provide some insight into key agreements
reached during the drafting stage. It.is important that the Action Memo-
randum represent the recommendations of the Regional Workgroup members and
Headquarters Review Team in order to expedite the concurrence process. The
Action Memorandum should provide space for Headquarters and Regional Office
concurrences and should attach the Notice of Tentative Decision for publica-
tion in the Federal Register.
4. Federal Register Notice of Tentative Determination
A Federal Register notice should be prepared by the State Coordinator
and Regional Counsel based on the comments provided by the Headquarters and
Regional Offices. The notice must present the Agency's tentative decision
as to whether the State program should be authorized. The discussion in the
notice should focus on whether the Agency expects the State program to be
authorized. If the notice indicates that the State program may not be
approved, a general statement of areas of concern shall be included (see
§271.20(d)). The notice must also announce availability of the State's
application for public review and comment and the schedule for a public
hearing. Each notice should also say that issues raised by public comments
during the comment period may be the basis for EPA denying authorization to
a State program. By Day 70 the Regional Administrator should submit the
Action Memorandum and Federal Register notice to the Headquarters Review
Team Leader. Concurrences from OLEC and OSWER are due within ten days. The
Federal Register notice is then submitted for publication.so that it will
appear within 90 days of the receipt of the complete application.
5. Public Information
Concurrent with the Federal Register notice publication, the State
Coordinator will arrange for a notice concerning the Agency's tentative
decision to be published in State newspapers and mailed to interested per-
sons (see §271.20(d)). In addition, the State Coordinator and the Head-
quarters Review Team Leader will set up depositories of the State's sub-
mittal for public review in the Regional Office and in Washington, D.C.
Copies should also be available in State depositories.
6. Hearing
The Federal public hearing will be chaired by the Regional Office.
Headquarters may wish to have a representative present or as a member of the
panel. The State Coordinator will be responsible for preparing responses to
the public comments and testimony. These responses should be reviewed by
the Regional Workgroup and should be transmitted to Headquarters Review Team
for their information. :
1.4-12
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7. State Application Amendments
The Stats will have the opportunity to respond to EPA's concerns and to
comments raised by the public. States will be provi.ded with transcripts or
EPA's official notes from any hearings along with copies of written comments
submitted. The State may amend its application where appropriate to rectify
any deficiencies identified. When possible, these modifications should be
submitted to EPA prior to the Federal public hearing. The State's amend-
ments may strengthen its position at the hearing if they respond to EPA's
concerns. Any modifications made necessary due to public comment following
the Federal Register notice should be submitted to EPA by Day 140 to allow
40 days for Agency review and final determination. Any additional State
submittals must be distributed by the State Coordinator to all Regional and
Headquarters reviewers for comments. It must be recognized that if EPA
determines that the amendments have materially changed the State's applica-
tion, the statutory review period will begin again (§271.5(c)), and another
round of State notice and comment period will be required. EPA also may
need to hold another public hearing or extend the comment period. In any
event, EPA will review all amendments to the initial application.
8. Federal Register Notice of Final Decision
The State Coordinator, with assistance from the Regional Counsel, must
prepare the Action Memorandum and Federal Register notice regarding the
final decision. These documents are similar to the ones ^prepared earlier,
though they must now address the final decision regarding'authorization for
the State program. They contain the same information as the earlier ones.
They will also include EPA's responses to public comments and to any changes
made by the State. The Action Memorandum and Federal Register notice must
be received by Headquarters 20 days before the end of the second 90 day
review period (Day 160).
Each Regional Workgroup member and Headquarters Review Team member has
the responsibility of briefing his/her respective Division Director or
Office Director on the final recommendation in advance of the transmittal of
the Action Memorandum. This briefing is intended to avoid any unnecessary
delays in -the concurrence process. Coordination of the concurrence proce-
dure remains the responsibility of the Review Team Leader in Headquarters
and the State Coordinator in the Region.
The Regional Administrator must obtain the agreement of the concurring
offices within the 90 day statutory review time frame.
Effect of Federal Program Changes
EPA regulations at §271.21(e) require that on approval, the State pro-
gram must be equivalent to the Federal program in effect on the date of
authorization. This requirement could potentially create a moving target
for States, if the Federal program were to undergo change while the States'
applications are awaiting final action. It is possible that a State which
is on the verge of receiving final authorization could be forced to change
its program and resubmit its application due to a change in the Federal
1.4-13
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program. Such a situation could also delay the State's receipt of final
authorization beyond the interim authorization period, resulting in rever-
sion of the program to EPA. In order to avoid this situation, the Agency is
planning to propose a regulatory amendment that would establish for a speci-
fied time period a fixed set of regulations as the basis for final authori-
zation decisions.
Recordkeepinq
It is essential that the Regions develop an authorization file system
which will provide a comprehensive record of the Agency's decision-making in
the authorization process. The recordkeeping system should provide a sim-
ple, efficient system for:
Information useful in monitoring the approval process, e.g.,
tracking stage of completion and need for amendment;
Information which can be used for program planning, e.g.,
phasing of the review and approval process; and
- . Information which can be used to respond to subsequent
changes to the application.
The State Coordinator is responsible for maintaining an authorization file
for each State. The authorization file should contain the" following ele-
ments:
1. A copy of the legislation and regulations and copies of any
comments from the pre-application review; ;
2. A copy of the draft and complete applications;
3. Copies of all comments from the Regional Workgroup as they
pertain to the draft and complete applications;
4. Copies of consolidated comments, correspondence and records
of telephone calls related to the application review from the
Headquarters Review Team;
5. Summaries of meetings and telephone calls with Headquarters,
the Regional Office and the State as they pertain to the
approval process;
6. A log which tracks the review of submittals and dates for
comments;
7. Copies of comments and statements from the Regional Admini-
strator and concurring offices;
8. Federal Register Notices;
1.4-14
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9. All public comments and responses; and
10. Action Memoranda.
The authorization file is not a public docket file. The Office of Re-
gional Counsel should be consulted when requests are received for any docu-
ments that are not already public documents (e.g., an Action Memorandum or
any other internal EPA memo).
1.4-15
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CHAPTER 2.1
GOVERNOR'S LETTER
Federal Requirement
§ 271.5 Elements of • program
submission.
(a) Any State that seeks to administer
a program under this part shall submit to
the Administrator at least three copies
of a program submission. The
submission shall contain the following:
(1) A letter from the Governor of the
State requesting program approval;
(2) A complete program description.
as required by § 271.6 describing how
the State intends to carry out its
responsibilities under this subpart;
(3) An Attorney General's statement
as required by § 271.7;
(4) A Memorandum of Agreement
with the Regional Administrator as
required by § 271.4
(5) Copies of all applicable State
statutes and regulations, including those
governing State administrative
procedures; and
(6) The showing required by
S 27l.20(c) of the State's public
participation activities prior to program
submission.
Introduction
•**»
RCRA Section 3006(b) requires that "any State which seeks to administer
and enforce a hazardous waste program pursuant to this subtitle may develop
and, after notice and opportunity for public hearing, submit to the Admini-
strator an application, in such form as he shall require, for authorization
of such program." The Governor's letter transmits the State's application
and is the formal request for program approval.
Content
The Governor's letter to EPA should contain a reference to the Federal
statute, a reference to the application, a request for approval of the State
program, and the Governor's signature.
(b) Within 30 days of receipt by EPA
of a State program submission. EPA will
notify the State whether its submission
is complete. If EPA finds that a State's
submission is complete, the statutory
review period (i.e.. the period of time
allotted for formal EPA review of a ,
proposed State program under section
3006(b) of the Act] shall be deemed to
hajre begun on the date of receipt of the
State's submission. If EPA finds that a
State's submission is incomplete, the
review period shall not begin until all
necessary information Js received by
EPA.
(c) If the State's submission is
materially changed during the review
period, the review period shall begin
again upon receipt of the revised
submission.
(d) The State and EPA may extend the
review period by agreement.
7 1-1
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CHAPTER 2.2
PROGRAM DESCRIPTION
Federal Requirement
9 271.6 Program description.
Any State that seek* to administer a
program under this subpart shall submit
a description of the program it proposes
to administer in lieu of the Federal
program under State law or under an
interstate compact The program
description shall include:
(a) A description in narrative form of
the scope, structure, coverage and
processes of the State program.
(b) A description (including
organization charts] of the organization
and structure of the State agency or
agencies which will have responsibility
for administering the program, including
the information listed beiow. If more
than one agency is responsible for
administration of a program, each
agency must have statewide jurisdiction
over a class of activities. The
responsibilities of each agency must be
delineated, their procedures for
coordination set forth, and an agency
must be designated as a "lead agency"
to facilitate communications between
EPA and the State agencies having
program responsibilities. When the
State proposes to administer a program
of greater scope of coverage than is
required by Federal law, the information
provided under this paragraph shall
indicate the resources dedicated to
administering the Federally required
portion of the program.
(1) A description of the State agency
staff who will carry out the Slate
program, including the number,
occupations, and genera] duties of the
employees. The State need not submit
complete job descriptions for every
employee carrying out the State
program.
(2) An itemization of the estimated
costs of establishing and administering
the program, including cost of the
personnel listed in paragraph (b)(l) of
this section, cost of administrative
support, and cost of technical support
This estimate must cover the first two
years after program approval.
(3) An itemization of the sources and
amounts of funding, including an
estimate of Federal grant money,
available to the State Director to meet
the costs listed in paragraph (b)[2) of
this section, identifying any restrictions
or limitations upon this funding. This
estimate must cover the first two years
after program approval
(c) A description of applicable State
procedures, including permitting
procedures and any State administrative
or judicial review procedures.
(d) Copies of the permit fonn(s).
application form(s), reporting form(s),
and manifest format the State intends to
employ in its program. Forms used by
States need not be identical to the forms
used by EPA but should require the
same basic information. The State need
not provide copies of uniform national
forms it intends to use but should note
its intention to use such forms.
Note:—States are encouraged to use
uniform national forms established by the
Administrator. If uniform national forma are
used, they may be modified to include the
State Agency's name, address, logo, and
other similar information, as appropriate, in
place of EPA's.
2.2-1
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(e) A complete description of the
State's compliance tracking and
enforcement program.
(f) A description of the State manifest
tracking system, and of the procedures
the State will use to coordinate
information with other approved State
programs and the Federal program
regarding interstate and international
shipments.
(g) An estimate of the number of the
following:
(1) Generators;
(2) Transporters; and
(3) On- and off-site storage, treatment
and disposal facilities, and a brief
description of the types of facilities and
an indication of the permit status of
these facilities.
(h) If available, an estimate of the
annual quantities of hazardous wastes
generated within the State: transported
into and out of the State: and stored.
treated, or disposed of within the State:
On-site: and Off-site.
Introduction
The Program Description is one of the critical elements of a State's
authorization application since it describes the program that the State
plans to operate in managing hazardous wastes. The Program Description
provides the State with opportunity to (1) discuss differences between the
State and Federal programs and (2) demonstrate how the State program meets
the tests for final authorization.
•The information to be provided .in the Program Description is specified
in 40 CFR 271.6 (shown above). It will probably be easiest for the State
and for reviewers, including EPA and the public, if the information is
presented in the sequence shown in the regulations. The length of the
Program Description will vary among States, depending on factors such as
complexity of the State program, number of State agencies involved, extent
of differences between the State and Federal programs, etc. Further guid-
ance is provided below on selected elements of the Program Description;
other elements are self-explanatory.
Scope. Structure. Coverage and Processes of State Program - §271.6(a)
In this section of the Program Description the State generally
describes its program for control of hazardous waste. The description
should show how the program satisfies the requirements for final authoriza-
tion, reflecting the six statutory tests, as explained in Chapter 1.3.
The Program Description should show, in narrative terms, how the State
program provides the coverage corresponding to 40 CFR Parts 261-265 and
Parts 270 and 124 as required by the regulations at §271.9-13. In develop-
ing this description the State should find especially valuable the check-
lists (Appendix A of this Manual) completed by the Attorney General as part
2.2-2
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of his Statement. To the extent that the Attorney General's Statement does
not explain differences which exist between the State and Federal programs,
the differences should be described in the Program Description. For
example, explanation may be needed to demonstrate that particular State
standards are consistent with the Federal program. If the Attorney General
did not complete the checklists, the State agency should complete the check-
lists and attach it to the Program Description. As in the case of Attorney
General's Statement, however, the State Agency need not complete the check-
lists when the State has incorporated the federal regulations by reference.
Lead State Agency - §271.6(b)
In situations where more than one agency within a State has responsi-
bility for administering the State program, the Program Description must
identify one State agency as the "lead agency" for purposes of handling
administrative matters between the State and EPA.
The identification of a lead agency is intended to simplify coordina-
tion and communication between the State and EPA, not to designate one
agency as having the legal responsibility for the hazardous waste program.
The MOA will reflect the legal responsibilities of the various State agen-
cies and their interaction with EPA. The Program Description will describe
the relationship of all State agencies involved in the implementation of the
hazardous waste program and discuss how the lead agency will coordinate the
activities of these agencies, particularly regarding their dealings with
EPA. The "lead agency" will be the agency that other State agencies and EPA
contact when an issue concerns one or more of the State agencies signing the
MOA or when it is unclear which State agency should be contacted concerning
a particular matter or issue.
State Procedures - §271.6(c)
This section should describe in detail the State's procedures for
permitting. This description should address the steps in submitting a
permit application, review of the application, and issuance or denial of the
permit. Modification and revocation of permits should also be discussed.
Public participation and any State administrative or judicial review proce-
dures, along with the activities of any special boards, should be high-
lighted. Unique procedures, such as "permit-by-rule" provisions, should be
described. If more than one State agency issues "RCRA" permits, any major
differences in permitting procedures should be delineated.
This section is also appropriate for discussion of the State's proce-
dures for revision of the State program. EPA regulations at §271.21(e)
require that the State be able to revise its program within specific time
periods after the Federal program is modified or supplemented. Though this
provision does not become operative until the State is authorized, the State
should nevertheless set forth in the Program Description the procedures and
typical time frames for amending its statutes and regulations. [Note that
EPA is pursuing a regulatory amendment to §271.21(e) which would extend the
amount of time available to authorized States in responding to changes in
the Federal program.]
2.2-3
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Compliance Tracking and Enforcement - §271.6(e)
The State's Program Description must demonstrate the way in which the
State compliance monitoring and enforcement program will operate in order to
ensure:
1. that all operations of hazardous waste management facilities
are conducted in accordance with State standards and permits
issued under State standards that meet the requirements for
final authorization; and
2. compliance by hazardous waste generators and transporters
with applicable State standards that meet the requirements
for final authorization.
The Federal regulations at §271.15(b)(2) require the State to maintain
a program for periodic inspections of the facilities and activities subject
to regulation. EPA recognizes that resource limitations may require that
inspections be conducted in priority order, with "major" hazardous waste
handlers being inspected at a greater frequency than the "non-major" ones.
The actual number of inspections and the priorities for inspections will be
negotiated annually between the State and EPA as part of the grant process
and in accordance with the Annual RCRA Guidance.
It should be noted that EPA has developed a definition of "major"
hazardous waste handlers to provide consistency in the designation of these
activities by EPA and authorized States. States should use this definition
and supporting criteria (discussed in PIG-82-2) in discussing its selection
of "major" handlers.
In order to meet compliance tracking and enforcement goals, the State
should demonstrate the adequacy of its program for:
1. Investigation of reported or suspected violations;
2. Follow-up inspections to ensure correction of detected viola-
tions;
3. Collection and analysis of samples during routine monitoring
and pursuant to investigations of violations (e.g., chain of
custody procedures);
4. Coordination with the Federal and/or State Departments of
Transportation to ensure enforcement of applicable trans-
porter requirements; and
5. Administrative/Judicial actions against violators.
Estimated Types and Number of Regulated Activities - §271.6(q)&(h)
The description of the estimated types and numbers of regulated activi-
ties is used for evaluating the adequacy of a State's program to regulate
2.2-4
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the activities of concern. Thus, the State should provide the best numeri-
cal estimates, based on existing data on hazardous waste activities in the
identified categories.
The sample formats tn Table 2 and Table 3 may be used for display of
this information. Only those activities corresponding to activities regu-
lated under the Federal program need to be included. States are encouraged
to provide a brief narrative explanation of the estimates.
2.2-5
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TABLE 2
Estimated Types and Number of Regulated Activities
ACTIVITY TYPE
Generators
Transporters
Storage Facilities
on-site
off-site
Treatment Facilities
on-site
off-site
Disposal Facilities
on-site
off-site
PERMIT STATUS
STATE INTERIM STATUS
n.a.
n.a.
STATE PERMIT
n.a.
n.a.
RCRA PERMIT
n.a.
n.a.
TOTAL
2.2-6
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TABLE 3
Annual quantities of Hazardous Wastes
ACTIVITY
Generated in the State
Transoorted
into the State
out of the State
Stored, Treated, Disposed in the State
on-site
off-site
ANNUAL QUANTITIES
- .
2.2-7
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CHAPTER 2.3
ATTORNEY GENERAL'S STATEMENT
Federal Requirement
9 271.7 Attorney GeneraTs statement
(a) Any State that seeks to administer
a program under this subpart shall
submit a statement from the State
Attorney General (or the attorney for
those State agencies which have
independent legal counsel) that the laws
of the State provide adequate authority
to carry out the program described
under § 271.6 and to meet the
requirements of this subpart This
statement shall include citations to the
specific statutes, administrative
regulations and. where appropriate,
judicial decisions which demonstrate
adequate authority. State statutes and
regulations cited by the State Attorney
General or independent legal counsel
shall be in the form of lawfully adopted
State statues and regulations at the time
the statement is signed and shall be
fully effective by the time the program is
approved. To qualify as "independent
legal counsel" the attorney signing the
statement required by this section must
have full authority to independently
represent the Stata agency in court on
all matters pertaining to the State
program.
Note:—EPA will supply States with an
Attorney General's statement format on
request
(b) When a State seeks authority over
activities on Indian lands, the statement
shall contain an appropriate analysis of
the State's authority.
Introduction
The following guidance is intended to assist the attorney preparing the
Attorney General's Statement for Final Authorization under Section 3006(b)
of The Solid Waste Disposal Act, as amended (RCRA, 42 U.S.C. §6901, et
seq.). The Attorney General's Statement is a required element of a Stated
application for final authorization (see 40.CFR 271.7) which provides certi-
fication by the Attorney General (or the attorney for those State or inter-
state agencies which have independent legal counsel) that State law and
regulations (and interstate compacts or agreements if applicable) provide
adequate authority to meet the applicable requirements for final authoriza-
tion and to carry out the State program in lieu of the Federal program.
2.3-1
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In some States, the Attorney General is authorized to issue formal
legal opinions which carry significant legal weight. The Attorney General's
Statement need not be such a formal opinion of the Attorney General but must
reflect his/her official legal opinion.
The attorney preparing the Attorney General's Statement should consult
40 CFR 271 Subpart A which contains the regulatory requirements for final
authorization and discussions found in preambles at 45 Fed. Reg. 33377 -
33396. (Also see 46 FR 36704-36706.)
Purpose of the Attorney General's Statement
The Attorney General's Statement is a central part of a State's appli-
cation for final authorization of the State's hazardous waste program and is
relied on to identify what legal authorities exist in the State and whether
those legal authorities are adequate to enable the State Program to operate
in lieu of the Federal program. (See preamble discussion at 45 Fed. Reg.
33379). The application review process includes review by EPA attorneys at
the Regional Offices and at Headquarters. Because EPA attorneys may not be
familiar with the State's law, it is important that the Attorney General's
Statement be as clear and detailed as possible in identifying and analyzing
State legal authority. As part of the application, the Attorney General's
Statement will be reviewed by the public; it will also be valuable both to
the State and to EPA where the EPA decision on the final authorization of a
State program is challenged. Furthermore, should it become" necessary for
EPA to take an enforcement action in the State after the State is autho-
rized, EPA would rely on the Attorney General's Statement for an understand-
ing of State law since the State law would be operating in lieu of Federal
law.
Who Should Sign the Attorney General's Statement
The Attorney General's Statement must be signed by the State Attorney
General or "the attorney for those State or interstate agencies that have
independent legal counsel" (40 CFR 271.7(a)). This provision allows the
following persons to sign the Attorney General's Statement: (1) the State
Attorney General or an attorney in his/her office who is authorized to sign
for the Attorney General; or, (2) a Deputy or Assistant Attorney General if
authorized to do so. Authorization should be in writing, case law, or sta-
tute. •
Independent legal counsel. As provided in 40 CFR 271.7(a), to qualify
as independent legal counsel the attorney signing the Statement "must have
full authority to independently represent the State Agency in court on all
matters pertaining to the State program." Thus, independent legal counsel
must have authority to enforce all aspects of the State program in court,
including authority to enforce criminal violations of the State program, and
to issue opinions interpreting the State law relevant to the program. Those
opinions may not be subject to being superceded by the opinions of the
2.3-2
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Attorney General. Whenever independent legal counsel signs the Attorney
General's Statement, he/she must provide .a statement explaining the scope of
his/her authority and legal basis therefore.
If more than one agency of State government administers or enforces the
State program, independent legal counsel for one participating agency may
not certify as to the legal authority for aspects of the program admini-
stered or enforced by other agencies. In that case, certification must be
made by the independent counsel for each agency or by the Attorney General.
The Model
1. General
The Model provided in this chapter suggests a format for the required
certification and for the identification and analysis of State laws, regula-
tions, and judicial decisions. The model is composed of the minimum legal
elements and checklists corresponding to these elements. The checklists
suggested for use with the Attorney General's Statement can be found in
Appendix A. The Model is only a guide. The format may be varied as re-
quired by the needs of individual States. However, each Attorney General's
Statement should contain at least the following:
A. Certification. The Attorney General's Statement-must contain a
general statement certifying, in narrative form, that State law provides
adequate authority to carry out the program set forth in the Program
Description.
8. Citations of Laws and Requirements. The Model provided below
contains the legal elements which should be addressed by the Attorney
General for final authorization. For each element, the Attorney General
should cite the specific State enabling authority and the specific State
regulations covering that element.
C. Attorney General's Analysis of Authorities. For each element pro-
vided in the. Model, the Attorney General should analyze, in narrative form,
whether, why, and how the cited authority provides the requisite authority
for the relevant program requirements, including analysis of legislative
history, State case law, or rules of construction where appropriate. (It
may also be necessary for the Attorney General to provide analysis of the
legal authority for certain promises made in the MOA as discussed on page
1.3-7). He/she should explain any problems or peculiarities in State author-
ity, and identify any State legal requirements which may be less stringent
or less inclusive than the Federal requirements. If, for example, the
State's statutory definition of hazardous waste excludes waste pesticides,
the Attorney General's analysis should include the precise scope of the
exclusion and other relevant information (e.g., coverage of waste pesticides
under other State statutory authority). Another example would be where the
State's inspection authority applies only to the "premises" of certain
parties; the Attorney General should explain the extent to which the State
is authorized to inspect the vehicles of transporters of hazardous waste.
Note that it will be the unusual instance where citation to authority with-
out further analysis will suffice.
2.3-3
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0. Date of Enactment of Laws and Adoption of Regulations. This infor-
mation is important in light of the requirement under 40 CFR 271.7 .that all
regulations be adopted pursuant to State procedural- requirements before the
Attorney General's Statement is signed.
2. The Checklists
The Model contains references to checklists that are intended to assist
the Attorney General in providing precise citation to specific EPA require-
ments and in eliminating the task of providing narrative explanation where
State regulations do not differ from EPA regulations. The checklists are
found in Appendix A. In addition, the checklists function to highlight
those aspects of State law which require explanation or comment. Such
explanation or comment is necessary wherever State law provides different
coverage and should be attached to the checklist with "comment attached at
" in the column for explanations or, if brief, included in that
column. The Attorney General may choose to include the checklists as part
of the Attorney General's Statement or to use them merely as a guide to all
relevant Federal requirements. Checklists which are completed and included
as part of the signed statement will be considered as part of the Attorney
General's certification.
The checklists identify only in capsule narrative and by citation, all
the relevant requirements for specific regulations. Therefore, it is imper-
ative that attorneys preparing the Attorney General's Statement refer to the
cited Federal regulations before providing the State citations. Note that
the checklists cite all elements of the Federal program. State law may
provide for some of these elements in a manner more stringent than the
Federal program. States may include information on these more stringent
elements to provide EPA and the public with a more complete description of
the State program.
It is important to note that in order for the State to demonstrate that
it qualifies for final authorization a detailed analysis of the State regu-
lations is needed. EPA considers the use of these checklists to be the
simplest method of achieving this demonstration. If the checklist is not
included as part of the Attorney General's Statement, the Attorney General
must use some other method of demonstrating that the State has specific
regulations comparable to the Federal ones.
Incorporation of Federal Regulations by Reference
Where a State has incorporated by reference any Federal regulation, the
Attorney General should demonstrate the authority to adopt State regulations
in this manner. The Attorney General should cite the State statutes and
regulations, listing the comparable CFR cite and date of incorporation. To
the extent that the State incorporates by reference entire Parts or Subparts
of the Federal regulations (e.g., 40 CFR Part 264 or Subpart A), there is no
need to complete the checklist identifying each provision of the incorpor-
ated Part or Subpart. Where only certain sections of a Part or Subpart are
incorporated, they should be identified on the checklist, but do not require
2.3-4
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further explanation. If the State's incorporation is intended to include
any EPA revisions that may occur in the future, then the Attorney General
should cite State authority both to promulgate and- to enforce regulations in
this manner.* The State should note that the Attorney General's Statement
includes a certification that State statutes and regulations shall be fully
effective by the time the program is approved.
State Jurisdiction over Indian lands
Some States may wish to assert jurisdiction over Indian lands in their
RCRA final authorization application (see Element X of the Model). Pursuant
to Federal law, EPA cannot approve a State's assertion of jurisdiction over
Indian lands absent a clear and unambiguous expression of intent to confer
State jurisdiction through either a Federal statute or an applicable treaty
with an affected tribe. (Note that RCRA itself cannot be deemed such an
expression of intent). In the absence of such a Federal statute or treaty,
EPA has exclusive jurisdiction over Indian lands.
Establishing a Format to Meet Individual State Needs
There is no specific format which must be followed by each Attorney
General in preparing the Attorney General's Statement for the Final Authori-
zation application; this guidance is intended to provide only suggested
options. It is recommended that the attorney preparing the Attorney Gen-
eral's Statement talk with the EPA Regional Counsel responsible for the
State program early in the application process. It is essential that the
format chosen for the Attorney General's Statement be coordinated with the
formats chosen for other parts of the application developed by the staff of
the State program.
EPA Review of Attorney General's Statements
Section 271.7 requires that the Attorney General's Statement include
citations to statutes, regulations and judicial decisions which demonstrate
that the State has adequate authority to administer its program in lieu of
*State Attorneys General should note that a number of State Supreme Court
cases hold that State statutes which adopt prospective Federal legislation
or regulations constitute an unconstitutional delegation of legislative
authority. See, e.g., State of North Dakota v. Julson, 202 N.W.2d 145
(1972); Dawson v. Hamilton. 314 S.W.2d 532 (1958); Cheney v. St. Louis
Southwestern Railway Co.. 239 Ark. 870, 394 S.W.2d 731 (1965); State of
West Virginia v. Ginstead. 157 W. Va. 1001, 206 S.E.2d 912 (1974); Schryver
v. Schirmer. 84 S.D. 352, 171 N.W.2d 634 (1969); State v. Johnson. 84 S.D.
536, 173 N.W.2d 894 (1970).
2.3-5
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the Federal program. EPA has recommended that the Attorney General's State-
ment also include a narrative analysis of whether, why, and how the cited
authority provides sufficient legal authority for the State program. In
reviewing Attorney General's Statements for interim authorization, however,
EPA found that in some instances narrative analyses were not provided.
Where such analyses are missing in an Attorney General's Statement for final
authorization, and EPA's review of the cited authority indicates that the
law or regulation is ambiguous or does not appear to meet Federal require-
ments, EPA may ask the Attorney General to supplement his statement. He
would be asked to address specific legal issues raised by the Agency's
review of the State statutes and regulations cited by him. On occasion EPA
may also ask that the Attorney General clarify or expand a prior narrative
analysis.
The purpose of these requests is not to "second guess" the State
Attorney General on matters of State law, but to assure that he has not
overlooked major legal issues in arriving at his opinion. Most importantly,
EPA must have a sound legal record for authorizing the State program.
Without further comment from the Attorney General on certain issues, EPA
generally cannot determine whether there is a plausible argument in support
of the State's legal position that its laws and regulations meet the re-
quirements of Federal law for State authorization.
«
For example, if the State Attorney General provides a general opinion
that a State hazardous waste statute allows the State to regulate all haz-
ardous waste facilities, but the statute appears to exempt surface impound-
ments, EPA would bring this issue to his attention and ask* him to address
it. In another example, if the hazardous waste statute or regulation ap-
pears to exclude waste pesticides, which EPA regulates, EPA-would ask the
State Attorney General to reconcile the difference in coverage. Once he has
specifically addressed an issue requiring an interpretation of State law,
however, EPA would defer to his opinion where it is supported by a plausible
argument. In the last example, the Attorney General might explain that
waste pesticides are regulated under a State statute dealing exclusively
with pesticides.
EPA does not defer to a State Attorney General on matters of Federal
law, including the issue of whether a State program (as interpreted by the
State Attorney General) meets applicable Federal regulations. In the ex-
ample above, EPA attorneys would accept the conclusion that Stae law pro-
vides authority to regulate waste pesticides but would draw on their own
conclusions about whether the State authority is adequate to meet EPA re-
quirements for program approval.
2.3-6
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MODEL ATTORNEY GENERAL'S STATEMENT FOR FINAL AUTHORIZATION
I hereby certify, pursuant to my authority as and in
accordance with Section 3006(b) of the Solid Waste Disposal Act as amended
by the Resource Conservation and Recovery Act, as amended (42 USC 6901, et
seq.), and 40 CFR 271 that in my opinion the laws of the State
[Commonwealth] of ^___ provide adequate authority to carry out
the program set forth in the "Program Description" submitted by the [State
Agency]. The specific authorities provided, which are contained in statutes
or regulations lawfully adopted at the time this Statement is signed and
which shall be fully effective by the time the program is approved, include
those identified below.
I. IDENTIFICATION AND LISTING
A. State statutes and regulations define hazardous waste so as to
control all the hazardous waste controlled under 40 CFR 261 as indicated in
Checklist I A.
[Here the Attorney General' should cite State statutes and regulations which
define relevant terms such as "hazardous waste," "waste," "solid waste,"
"discarded substances," "substances for re-use and recycling," etc. includ-
ing any exclusions from these definitions.]
[Federal Authority: RCRA §3001 (42 U.S.C. 6921); 40 CFR 261,-271.9.]
8. State statutes and regulations contain a list of hazardous waste
and characteristics for identifying hazardous waste which encompass all
wastes controlled under 40 CFR 261 as indicated in Checklist I B and C.
[Federal Authority: RCRA §3001(b) (42 U.S.C. 6921); 40 CFR 261, 271.9.]
II. STANDARDS FOR GENERATORS
State statutes and regulations provide coverage of all the generators
covered by 40 CFR 262 as indicated in Checklist II.
[Federal Authority: RCRA §3002 (42 U.S.C. 6922); 40 CFR 262, 271.10]
III. STANDARDS FOR TRANSPORTERS
State statutes and regulations provide coverage of all the transporters
covered by 40 CFR 263 as indicated in Checklist III.
[Federal Authority: RCRA §3003 (42 U.S.C. 6923); 40 CFR 263, 271.11]
2.3-7
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IV. STANDARDS FOR FACILITIES
A. State statutes and regulations provide permit standards for hazar-
dous waste management facilities covered by 40 CFR 264 as indicated in
Checklist IV A. .
[Federal Authority: RCRA §3004 (42 U.S.C. 6924); 40 CFR 264, 271.12]
[Where a State provides for interim status for facilities, analysis of the
State's authority should be included here. Model language is presented in
Section B below.]
8. State statutes and regulations provide for interim status and
include interim status standards for hazardous waste management facilities
covered by 40 CFR 265 as indicated in Checklist IV B.
1. State statutes and regulations authorize owners and operators of
hazardous waste management facilities which would quality for interim status
under the federal program to remain in operation until a final decision is
made on the permit application;
2. State l.aw and regulations authorize continued operation of hazard-
ous waste management facilities provided that owners and operators of such
facilities comply with standards at least as stringent as EPA's interim
status standards at 40 CFR 265; and
3. State law and regulations assure that any facility qualifying for
State interim status continues to qualify for Federal interim status.
[Federal Authority: RCRA §3005(e) (42 U.S.C. 6925); 40 CFR 265, 271.13(a)]
V. REQUIREMENTS FOR PERMITS
State statutes and regulations provide requirements for permits as
indicated in Checklist V.
[Where there are no State regulations covering one or more of the procedural
requirements designated in Checklist V, and the State has agreed in the MOA
to follow equivalent requirements, the Attorney General's Statement must
provide a discussion of the State's authority (1) to enter into such an
agreement and (2) to carry out the agreement. This discussion should in-
clude an explanation of why (under any State administrative procedure act)
the particular requirements the State has agreed to follow in the issuance
of all hazardous waste permits need not be in the form of rules.]
[Federal Authority: RCRA §3005 (42 U.S.C 6925); RCRA §7004 (42 U.S.C.
6974); 40 CFR 271.13 and .14]
2.3-8
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VI. INSPECTIONS
State law provides authority for officers engaged in compliance evalu-
ation activities to enter any conveyance, vehicle, facility or premises
subject to regulation or in which records relevant to program operation are
kept in order to inspect, monitor, or otherwise investigate compliance with
the State program including compliance with permit terms and conditions and
other program requirements. (States whose law requires a search warrant
prior to entry conform with this requirement).
[Federal Authority: RCRA §3007 (42 U.S.C. 6927), 40 CFR 271.15]
Citation of Laws and Regulations; Dates of Enactment and Adoption
Remarks of the Attorney General
VII. ENFORCEMENT REMEDIES
State statutes and regulations provide the following:
A. Authority to restrain immediately by order or by suit in State
court any person from' engaging in any unauthorized activity which
is endangering or causing damage to public health or the environ-
ment.
[Federal Authority: RCRA §3006 (42 U.S.C. 6926); 40 CFR 271.16(a)(l)]
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
B. Authority to sue in courts of competent jurisdiction to enjoin any
threatened or continuing violation of any program requirement,
including permit conditions, without the necessity of a prior
revocation of the permit.
[Federal Authority: RCRA §3006 (42 U.S.C. 6926); 40 CFR 271.16(a)(2)]
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
C. Authority to assess or sue to recover in court civil penalties in
at least the amount of $10,000 per day for any program violation.
[Federal authority: RCRA §3006 (42 U.S.C. - 6926); 40 CFR 271.16(a)(3)(i)]
2.3-9
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Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
0. Authority to obtain criminal penalties in at least the amount of
$10,000 per day for each violation, and imprisonment for at least
six months against any person who knowingly transports any hazard-
ous waste to an unpermitted facility; who treats, stores, or
disposes of hazardous waste without a permit; or who makes any
false statement or representation in any application, label,
manifest, record, report, permit, or other document filed, main-
tained, or used for the purposes of program compliance.
[Federal Authority: RCRA §3006 (42 U.S.C. 6926); 40 CFR 271.16(a)(3)(ii).]
Citation of Laws and Regulations; Dates of Enactment and Adoption
Remarks of the Attorney General
VIII. PUBLIC PARTICIPATION IN THE STATE ENFORCEMENT PROCESS
State laws and regulations provide for public participation in the
State enforcement process by providing either:
A. Authority to allow intervention as of right in any civil or admin-
istrative action to obtain the remedies specified in Section VII
A, B and C above by any citizen having an interest which is or may
be adversely affected; or
8. Assurances that the State agency or enforcement authority will:
(1) Investigate and provide written response to all citizen
complaints duly submitted;
(2) Not oppose intervention by any citizen where permissive
intervention may be authoritized by statute, rule, or regula-
tion; and
(3) Publish and provide at least 30 days for public comment on
any proposed settlement of a State enforcement action.
[Federal Authority: RCRA §7004 (42 U.S.C. 6974); 40 CFR 271.16(d)]
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
2.3-10
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IX. AUTHORITY TO SHARE INFORMATION WITH EPA
State statutes and regulations provide authority for any information
obtained or used in the administration of the State program to be available
to EPA upon request without restriction.
[Federal Authority: RCRA §3007(b) (42 U.S.C. 6927); 40 CFR 271.17]
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
X. AUTHORITY OVER INDIAN LANDS
[Where a State seeks authority over Indian lands appropriate analysis of the
State's authority should be included here.]
[Federal Authority: 40 CFR 271.7(b)]
Citation of Laws and Regulations; Dates of Enactment and Adoption
Remarks of the Attorney General
Seal of Office
Signature
Name (Type or Print)
Title
Date
2.3-11
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CHAPTER 2.4
MEMORANDUM OF AGREEMENT
Federal Requirement
9 271.B Memorandum of Agreement with
the Regional Administrator.
(a) Any State that seeks to administer
a program under this subpert shall
submit a Memorandum of Agreement
(MOA). The Memorandum of Agreement
shall be executed by the State Director
and the Regional Administrator and
shall become effective when approved
by the Administrator. la addition to
meeting the requirements of paragraph
(b) of this section, the.Memorandum of
Agreement may include other terms.
conditions, or agreements consistent
with this subpart and relevant to the
administration and enforcement of the
State's regulatory program. The
Administrator sha
i not approve any
Memorandum of Agreement which
contains provisions which restrict EPA's
statutory oversight responsibility.
(b) Ail Memoranda of Agreement
shall include the following:
(1) Provisions for the Regional
Administrator to promptly forward to
the State Director information obtained
prior to program approval in
notifications provided under section
3010(a) of RCRA. The Regional
Administrator and the State Director
shall agree oa procedure* for the
assignment of EPA identification
numbers for new generators,
transporters, treatment, storage, and
disposal facilities.
(5) No limitations on EPA compliance
inspections of generators, transporters,'
or non-major HWM facilities under
paragraph (b)(4) of this section shall
restrict EPA's right to inspect any
generator, transporter, or HWM facility
which it has cause to believe is not in
compliance with RCRA; however, before
conducting such an inspection, EPA will
normally allow the State a reasonable
opportunity to conduct a compliance
evaluation inspection.
(6) Provisions for the-prompt transfer
from EPA to the State of pending permit
applications and any other information '
relevant to program operation not
already in the possession of the State
Director (e.g., support files for permit
issuance, compliance reports, etc.).
When existing permits are transferred
from EPA to the State for
administration, the Memorandum of
Agreement shall contain provisions
specifying a procedure for transferring
the administration of these permits. K a
State lacks the authority to directly
administer permits issued by the Federal
government, a procedure may be
established to transfer responsibility for
these permits.
2.4-1
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(2) Provisions specifying the frequency
and content of reports, documents and
other information which the State is
required to submit to EPA. The State
shall allow EPA to routinely review
State records, reports, and files relevant
to the administration and enforcement
of the approved program. State reports
may be combined with grant reports
where appropriate,
(3) Provisions on the State's
compliance monitoring and enforcement
program, including:
(i) Provisions for coordination of
compliance monitoring activities by the
State and by EPA. These may specify
the basis on which the Regional
Administrator wffl select facilities or
activities within the State for EPA
inspection. The Regional Administrator
will normally notify the State at least 7
days before any such inspection; and
(ii) Procedures to assure coordination
of enforcement activities.
(4) Provisions allowing EPA to
conduct compliance inspections of all
generators, transporters, and HWM
facilities in each year for which the
State is operating under final
authorization. The Regional
Administrator and the State Director
may agree to limitations on compliance
inspections of generators, transporters,
and non-major HWM facilities.
Note* For example, EPA and the State
and the penatttM could ape* that the State
would iaaue a permit(a) identical to the
outstanding Federal permit which would
•imoltaoeeualy be terminated.
(7) Provisions specifying classes and.
categories of permit applications, draft
permits, and proposed permits that the
State will send to the Regional
Administrator for review, comment and,
where applicable, objection.
(8) When appropriate, provisions for
joint processing of permits by the State
and EPA, for facilities or activities
which require permits from both EPA
and the State under-different programs.
See § 124.4
Note.—To promote efficiency and to avoid
duplication and inconsistency. States are
encouraged to enter into joint processing
agreements with EPA for permit issuance.
(9) Provisions for the State Director to
promptly forward to EPA copies of draft
permits and permit applications for all
major HWM facilities for review and
comment The Regional Administrator
and the State Director may agree to
limitations regarding review of and
comment on draft permits and/or permit
applications for non-major HWM
facilities. The State Director shafl supply
EPA copies of final permits for all major
HWM facilities.
(10) Prortsiona for the State Director
to review all permits issued under State
law prior to the date of program
approval and modify or revoke and
reissue them to require compliance with
the requirements of this sabpart. The
Regional Administrator and the State
Director shall establish a time within
which this review must take place.
(11) Provisions for modification of the
Memorandum of Agreement in
accordance with this subpart
(c) The Memorandum of Agreement
the annual program grant and the State/
EPA Agreement should be consistent. If
the State/EPA Agreement indicates that
a change is needed in the Memorandum
of Agreement the Memorandum of
Agreement may be amended through the
procedures set forth in this subpart The
State/EPA Agreement may not override
the Memorandum of Agreement
Note.—Detailed program priori tte* and
specific amasjemaats for EPA support of the
State uruaiaa will change and are therefore
more appropriately negotiated in the context
of annual agreements rather than in the
MOA. Iluanrej. H may still be appropriate to
specify in the MOA the basis for •oca
detailed agreements. e.g» a provision in me
MOA »pacir>ing that EPA will select facilities
in the State for inspection annually as part of
the State/EPA agreement
2.4-2
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Introduction
The Memorandum of Agreement (MOA) is the vehicle for specifying areas
of coordination and cooperation in the respective roles and responsibilities
of EPA and the authorized State. As such, the MOA should be a dynamic
instrument, reviewed and revised annually to accommodate changes in the
maturing State-EPA relationship.
The MOA provides for the transfer of permit issuance responsibility
from EPA, establishes a framework for EPA overview of the administration and
enforcement of the approved program, and provides for the exchange of infor-
mation between EPA and the State. The MOA may also contain other other
State-EPA agreements that are relevant to the implementation of the hazard-
ous waste program, such as State agreement to employ certain procedures
analogous to those of 40 CFR 270 and 124 as described on page 1.3-7 of this
Manual. The effective date of the MOA will be the date that the notice of
the State's authorization is published in the Federal Register..
Model
The following Model has been written as a guide to meeting the require-
ments of 40 CFR 271.8. It is based on the premise that the MOA is to com-
plement other elements of the State program submission by focusing on the
area of State-EPA coordination. Several areas where the Region and the
State may need or want to expand the basic framework have been noted in
brackets. Each Region undoubtedly will have additional terms it will want
to include in some or all of its MOA's. For illustrative purposes the
contents of the Model are outlined below.
I. General
II. Policy Statement
III. State Program Review
A. General
8. Identification of Major Hazardous Waste Handlers
IV. Information Sharing
A. General
B. EPA
C. State
0. Site Visits
E. Emergency Situations
F. Confidentiality
V. Permit Issuance
A. EPA Permitting
B. EPA Overview of State Permits
C. State Permitting
VI. Permit Administration
A. EPA
B. State
VII. Compliance Monitoring and Enforcement
A. EPA
B. State
2.4-3
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Signatories
Generally, the MOA is signed by the State Director and the Regional
Administrator. While the regulations at §271.8(a) require the approval of
the Administrator of EPA before the MOA can become effective, EPA Delegation
8-7, "State Hazardous Waste Programs and State Program Submittals," allows
the Regional Administrator to sign the MOA on behalf of the Administrator.
EPA regulations at §270.2 define State Director as:
: ...the chief administrative officer of any State or inter-
state agency operating an approved program, or the delegated
representative of the State Director. If responsibility is
divided among two or more State or interstate agencies, State
Director means the chief administrative officer of the State
or interstate agency authorized to perform the particular
procedure or function to which reference is made.
Where the directors of two or more State agencies share substantive respon-
sibilities for the functions described in the MOA (e.g., one agency has
responsibility for the issuance of permits to .hazardous waste incinerators
and another for disposal facilities), the directors of each of those
agencies must sign the MOA with EPA. The MOA must clearly indicate the
specific responsibilities assumed by each of the State Directors and must
describe how they will share and coordinate implementation of those provi-
sions of the MOA which concern more than one State agency. This may be done
in a separate section of the MOA or by designating specific State, agency
responsibilities throughout the text of the MOA.
Note that where the divergence of responsibility involves solely en-
forcement authority, an agreement among the State agencies would be allowed
as an alternative to having each enforcement arm sign the MOA. Agreements
with enforcement agencies of local units of government are not required.
2.4-4
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MEMORANDUM OF AGREEMENT
BETWEEN
THE STATE OF
AND
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION
I. GENERAL
This Memorandum of Agreement (hereinafter "Agreement") establishes policies,
responsibilities, and procedures pursuant to 40 CFR 271.8 for the State of
Hazardous Waste Program (hereafter "State Program") author-
ized under Section 3006 of the Resource Conservation and Recovery Act (here-
inafter "RCRA" or "the Act") of 1976 (Public Law 94-580, 42 USC §6901 et
seq.) and the United States Environmental Protection Agency (hereafter EPA)
Regional Office for Region . This agreement further sets forth the
manner in which the State and EPA will coordinate in the State's administra-
tion of the State program.
This Agreement is entered into by the Director [or other title as appropri-
ate] of [State Agency] (hereinafter "Director" or "the State") and
the Regional Administrator, EPA Region (hereinafter "Regional
Administrator" or "EPA"). [Where State program responsibility is shared
among two or more agencies, each of the agencies is to be identified here as
a party to the Agreement, the director of each is to sign the Agreement, and
the Agreement must identify which of the agencies is responsible for each
provision of the Agreement.]
For administrative purposes, the [State Agency] will serve as lead
agency to simplify coordination and communication between the State and EPA.
[This provision need not be included in the MOA where there is only one
responsible State Agency.]
Nothing in this agreement shall be construed to restrict in any way EPA's
authority to fulfill its oversight and enforcement responsibilities under
RCRA. Nothing in this agreement shall be construed to contravene any provi-
sion of 40 CFR Part 271.
The parties will review the Agreement jointly at least once a year (and
other times as appropriate) during preparation of the annual State Grant
Work Program (hereinafter "State Work Program"), in connection with grant
funding under section 3011 of RCRA.
This Agreement may be modified upon the initiative of either party in order
to ensure consistency with State program modifications made or for any other
purpose mutually agreed upon. Any revisions or modifications must be in
writing and must be signed by the State and the Regional Administrator.
2.4-5
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This Agreement will remain in effect until such time as State program
authorization is withdrawn by or is voluntarily transferred to EPA according
to the criteria and procedures established in 40 CFR 271.22 and 40 CFR
271.23.
This Agreement shall be executed by the State and the Regional Administrator
and shall become effective at the time the State's authorization takes
effect, which shall be the date of publication in the federal Register of
EPA's decision to grant authorization to the State.
II. POLICY STATEMENT
Each of the parties to this Agreement is responsible for ensuring that its
obligations under RCRA are met. Upon granting final authorization by EPA,
the State assumes primary responsibility for implementing the RCRA hazardous
waste program within its boundaries. EPA retains its responsibility to
ensure full and faithful excecution of the requirements of RCRA, including
direct implementation in the event the State is unable to act. The State
and the Regional Administrator agree to maintain a high level of cooperation
and coordination between their respective- staffs in a partnership to assure
successful and effective administration of the State program.
EPA assumes an oversight role upon granting final authorization to the
State. EPA will oversee State program implementation in order to ensure
full execution of the requirements of RCRA, to promote national consistency
in implementation of the hazardous waste program, to allow EPA to report to
the President and Congress on the achievements of the hazardous waste pro-
gram, and to encourage States and the EPA to. agree on desirable technical
support and targets for joint efforts to prevent and mitigate environmental
problems associated with the improper management of hazardous wastes.
Oversight will be accomplished by EPA through written reporting require-
ments, permit overview, compliance and enforcement overview, and annual
review of States' programs.
III. STATE PROGRAM REVIEW
A. General
The Regional Administrator will assess the State administration and
enforcement of the hazardous waste program on a continuing basis for
equivalence and consistency with RCRA, with this Agreement, and with
all applicable Federal requirements and policies and for adequacy of
enforcement. This assessment will be accomplished by EPA review of
information submitted by the State in accordance with this Agreement
and the State Work Program, permit overview, compliance and enforcement
overview, and annual review of State program activities. The Regional
Administrator may also consider, as part of this regular assessment,
written comments about the State's program administration and enforce-
ment that are received from regulated persons, the public, and Federal,
State and local agencies. Copies of any such comments received by the
Regional Administrator will be provided to the State.
2.4-6
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To ensure effective program review, the State agrees to allow EPA
access to all files and other information requested by the Regional
Administrator and deemed necessary, for reviewing State program admini-
stration and enforcement.
Review of [State Agency] files may be scheduled at quarterly intervals.
Program review meetings between the State and the Regional Administra-
tor or their assignees will be scheduled at reasonable intervals not
less than annually to review specific operating procedures and sche-
dules, to resolve problems and to discuss mutual program concerns.
These meetings will be scheduled at least fifteen days in advance
unless agreed to differently. A tentative agenda for the meeting will
be prepared by EPA.
8. Identification of Major Hazardous Waste Handlers
The State agrees to develop with EPA a list of hazardous waste facili-
ties, generators and transporters in the State designated as "major"
hazardous waste handlers. This designation is intended to identify,
for administrative purposes, environmentally significant hazardous
waste handlers, and to be used in concentrating inspection, permitting
and reporting resources on those handlers. The list shall be submitted
as a part of this agreement. It shall be reviewed and updated annually
and more often as necessary. Changes to the list do not require a
formal amendment to this Agreement so long as both the State and EPA
agree in writing to any changes.
•
From the list of "major" handlers the State agrees to develop and
annually review with the Regional Administrator a list of facilities
whose permit applications and draft permits will be reviewed by EPA.
This smaller list constitutes major facilities for purposes of EPA
permit overview.
IV. INFORMATION SHARING
A. General
As the national hazardous waste program matures, the respective roles
and responsibilities in this State/Federal parternship will become more
clear. As the respective information needs of the State and EPA
evolve, changes to this section of the Agreement may be appropriate.
During the annual review of this agreement the State and the Regional
Administrator will carefully examine the following information sharing
provisions for needed revision.
B. EPA
1. EPA will keep the State informed of the content and meaning of
Federal statutes, regulations, guidelines, standards, policy
decisions, directives, and any other factors that affect the State
Program. EPA will also provide general technical guidance to the
State. EPA will share with the State any national reports devel-
oped by EPA from the data submitted through State reporting
requirements.
2.4-7
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2. EPA agrees to provide the State notification information from EPA
Form 8700-12 obtained prior to the effective date of this agree-
ment. A copy of the original notification forms and/or a computer
print-out containing all the notification information will be
provided. Such information will be provided to the Director
within thirty days of the effective date of this Agreement. EPA
will also forward, on a monthly basis, notification information
(including newly assigned EPA identification numbers) submitted by
persons in the State who file such forms after the effective date
of this Agreement. This information will be submitted to the
Director within ten days of the end of each month for the preced-
ing month.
3. EPA agrees to assign EPA identification numbers to generators and
transporters and to owners and operators of hazardous waste treat-
ment, storage, and disposal" facilities submitting notifications to
the State after the effective date of this Agreement. EPA will do
this after receiving a copy of the notification information from
the State as provided in Section IV.C.7 of this Agreement.
4. EPA agrees to transfer to the State any pending Part A and Part 8
hazardous waste management facility permit applications originally
. submitted to EPA pursuant to 40 CFR 270.10 by facilities located
in the State and which have not already been transferred to tha
State, together With all pertinent file information. Pertinent
file information includes applications (including accompanying
narratives, plans, maps, etc.), draft permits, "public notices,
administrative notices, fact sheets and correspondence. Such
materials will be provided within thirty days after the effective
date of this agreement and according to any arrangements the State
and the Regional Administrator may make regarding the priority of
transfer.
[The Region may want to work out an agreement with the State to
transfer some of this information at a later date. For example,
the transfer of some EPA permit information may be given a lower
priority if the State has previously issued a joint permit with
EPA or the State has issued substantially equivalent permits under
interim authorization for certain facilities^]
5. EPA will also provide to the State, within five days of receipt,
Part A and Part 8 permit applications submitted directly to EPA by
persons in the State after the effective date of this Agreement.
6. EPA agrees to make available to the State copies of any reports
and data resulting from compliance inspections within sixty days
of completion of the inspections.
7. EPA will make available to the State other relevant information as
requested which the State needs to implement its approved program.
2.4-8
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C. State
1. The State agrees to inform the Regional Administrator of any
proposed or adopted program changes which would affect the State's
ability to implement the authorized program. Program changes of
concern include modification of the State's legal authorities
(i.e. statutes, regulations and judicial or legislative actions
affecting those authorities), modifications of.memoranda of agree-
ment or understanding with other agencies, and modifications of
resource levels (i.e., available or budgeted personnel and funds).
The State recognizes that program revisions must be made in ac-
cordance with the provisions of 40 CFR 271.21.
2. The State will provide compliance monitoring and enforcement
information to the Regional Administrator on a routine basis as
specified in the State Work Program. During fiscal year 1984 the
Regional Administrator will be especially concerned with informa-
tion on facility ground-water monitoring, financial responsibil-
ity, and closure and post-closure care.
3. As specified in the State Work Program, the State will routinely
provide the Regional Administrator with information indicating the
status of the State's facility permitting activities. During
fiscal year 1984 the Regional Administrator will be especially
concerned with facility-specific information on the following
milestones:
Date permit application requested
Date complete permit application received
Date of Public Notice
Date of permit application withdrawal (and reason)
Date of permit issuance/denial
4. The State agrees to submit the following reports to the Regional
Administrator within the specified time periods:
o Biennial report summarizing the quantities and types of
hazardous waste generated, transported, treated, stored, and
disposed in the State as specified in the RCRA Guidance, by
October 1 of each even-numbered year.
o Additional reports as negotiated in the State Work Program.
5. Where the State program involves the granting of variances or
waivers, the State agrees to provide EPA with a copy of each State
variance or waiver at the time it is granted. [The Regional
Administrator and State may negotiate a process for EPA review of
proposed variances or waivers. Terms of this agreement should be
specified in the MOA. ]
6. For those major hazardous wast.e handlers identified as major
facilities for EPA permit overview (see Section III), the State
agrees to provide EPA with the following information within the
time frames described:
2.4-9
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o Copies of facility permit Within fifteen working
applications, revisions days of receipt
and additions
o Copies of draft permits, Within five working
proposed permit modifi- days of completion
cations, public notices
o Copies of final permit Within five working
or permit modifications days of completion
7. So that EPA can issue EPA identification numbers and maintain a
national inventory of all hazardous waste handlers, the State
agrees to provide EPA with the .following notification information
submitted to the State after the effective date of this Agreement
by new hazardous waste generators, transporters and treatment,
storage and disposal facilities in the State:
name and location of the handler
mailing address of the handler
name and telephone number of a contact person
type of hazardous waste activity
process codes (if the handler is a TSDF)
The State will also submit any updates or changes in previously
submitted notification information. This information will be
provided to the Regional Administrator within ten-days of receipt
of the information.
8. The State agrees to provide EPA with copies of reports on data
resulting from any compliance inspection and subsequent enforce-
ment actions, if EPA requests such copies.
D. Site Visits
EPA is responsible for maintaining reliable national data on hazardous
waste management. This data is used to report to the President and
Congress on the achievements of the hazardous waste program and to
support EPA's regulatory development efforts. Whenever EPA determines
that it needs to obtain certain information, EPA will first seek to
gain this information from the State. The State agrees to supply the
Regional Administrator with this information if readily available and
as resources allow. If the State is unable to provide the information
or if it is necessary to supplement the State information, EPA may
conduct a special survey or perform information collection site visits
after notifying the State. EPA will share with the State any national
reports developed by EPA as a result of such information collection.
E. Emergency Situations
Upon receipt of any information that the handling, storage, treatment,
transportation, or disposal of hazardous waste is endangering human
health or the environment, the party in receipt of such information
shall immediately notify by telephone the other party(ies) to this
2.4-10
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Agreement of the existence of such situation. [Include details here
for information sharing, names and titles of individuals, telephone
numbers, etc.]
F.. Confidentiality
1. Any information obtained or used in the administration of the
State program shall be available to EPA upon request without
restriction. . If the information has been submitted to the State
under a claim of confidentiality, the State must submit that claim
to EPA when providing information. Any information obtained from
a State and subject to a claim of confidentiality will be treated
in accordance with the regulations in 40 CFR Part 2.
2. EPA agrees to furnish to the State information in its files which
is not submitted under a claim of confidentiality and which the
State needs to implement its program. Subject to the conditions
in 40 CFR Part 2, EPA will furnish the State information submitted
to EPA under a claim of confidentiality'which the State needs to
implement its program. All information EPA agrees to transfer to
the State will be transferred in accordance with the requirements
of 40 CFR Part 2.
V. PERMIT ISSUANCE
A. EPA Permitting
Upon final authorization of the State program EPA will suspend issuance
of Federal permits for hazardous wa.ste treatment, storage, and disposal
facilities in the State. [Each Region should try to make special
arrangements with the State for the State to assume responsibility for
issuing particular permits EPA has been working on; the State will need
specific authority to assume responsibility in the midst of the pro-
cess, unless the proceedings have been joint, with both Federal and
State administrative procedures followed up to the time the State
assumes full responsibility.]
EPA intends to add permitting standards for processes not currently
covered by the Part 264 standards. For example, th« Part 264 standards
do not currently cover treatment and storage of hazardous waste in
certain types of underground'tanks. When EPA does promulgate standards
for additional processes, EPA will process and enforce RCRA permits in
the State in the new areas until the State receives final authorization
of equivalent and consistent State standards. At the time the State
program is approved in the new areas, EPA will suspend issuance of
Federal permits in the State. EPA will also, transfer any pending
permit applications, completed permits or pertinent file information to
the State within thirty days of the approval of the State program in
conformance with the conditions of this agreement.
2.4-11
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8. EPA Overview of State Pennits
While EPA may comment on any permit application or draft permit, EPA's
overview function will focus primarily on those facilities identified
by the State and EPA as major facilities for permit overview.
EPA may comment in writing on any draft permit or proposed permit
modification, whether or not EPA commented on the permit application,
within forty-five days of its receipt. [EPA should be allowed at least
as long to comment as the public at large; this time period should
probably be tied to each State's public participation process.] Where
EPA indicates in a comment that issuance of the permit would be incon-
sistent with the approved State program, EPA shall include in the
comment:
(a) a statement of the reasons for the comment (including the section
of the State regulations that support the comment); and
(b) the actions that should be taken by the State in order to address
the comments (including the conditions which the permit would
include if it were issued by EPA.)
EPA shall send a copy of its written comments to the permit applicant.
EPA shal] withdraw such comments when satisfied that the State has met
or refuted its concerns and shall also provide the permit applicant
with a copy of such withdrawal.
[Insert here any agreement the Region makes with the .State regarding
resolution of EPA comments on draft permits before final permit issu-
ance by the State, e.g., the State and the RA agree to meet or confer
whenever necessary to resolve a disagreement between their staffs on
the terms of any RCRA permit to be issued by the State. The Region may
want to add a specific time, limit within which the State and RA will
meet.]
Under Section 3008(a)(3) of RCRA, EPA may terminate a State issued
permit in accordance with the procedures of Part 124, Subpart E, or
bring an enforcement action in accordance with the procedures of 40 CFR
Part 22 in the case of a violation of a State program requirement. In
exercising these authorities, EPA will observe the conditions estab-
lished in 40 CFR 271.19(e).'
C. State Permitting
The State is responsible for expeditiously drafting, circulating for
public review and comment, issuing, modifying, reissuing and terminat-
ing RCRA permits for all hazardous waste treatment, storage and dispos-
al facilities in the State, and shall do so in a manner consistent with
RCRA, with this Agreement, with all applicable Federal requirements,
and with the State's Program Description.
2.4-12
-------
[Insert here any agreement the State makes regarding (1) its assumption
of permit issuance in ongoing EPA permit proceedings and (2) its en-
forcement, adoption or reissuance of EPA-issued RCRA permits. Note
that the State must have specific authority to either assume admini-
stration and enforcement of EPA-issued permits or to adopt them as
State permits; otherwise the State must reissue the permits as State
RCRA permits.]
The State agrees to issue, modify and reissue all permits in accordance
with [insert citation to relevant State procedural environmental
statutes and regulations and administrative procedures act and regula-
tions] and to include as permit conditions all applicable provisions of
[insert citation to relevant State environmental regulations]. This
agreement also applies to permits issued after final authorization but
for which the processing may have begun before final authorization.
[Insert here any agreement the State makes that is necessary to carry
out the permitting procedures analogous to those at 40 CFR Parts 270
and 124. See pages 1.3-7 for discussion.]
[Insert here any agreement the State makes regarding its use of any
variance or waiver authority. See page 1.3-8 for discussion.]
The' State agrees that any compliance schedules contained in permits 'it
issues will require compliance with applicable standards as soon as
possible. [Insert here any agreement the State makes regarding interim
dates, reporting for such permittees, etc.]
The State agrees to consider all comments EPA makes on permit applica-
tions and draft permits. The State will satisfy or refute EPA's con-
cerns on a particular permit application, proposed permit modification,
or draft permit in writing before issuing the permit or making the
modification.
VI. PERMIT ADMINISTRATION
A. EPA
[If the State has authority to directly administer permits issued by
the Federal government, this section is inapplicable and the Region
should insert provisions for transferring responsibility for all
Federal permits to the State.]
EPA will administer the RCRA permits it has issued to facilities in the
State until they expire or are terminated. EPA will be responsible for
enforcing the terms and conditions of the Federal permits while they
remain in force. When the State either incorporates the terms and
conditions of the Federal permits in State RCRA permits or issues State
RCRA permits to those facilities, EPA will primarily rely on the State
to enforce those terms and conditions.
2.4-13
-------
B. State
The State agrees to review all hazardous waste permits which were
issued under State Law prior to the effective date of this agreement
and to modify or revoke and reissue such permits as necessary to re-
quire compliance with [insert citation to relevant State environmental
statutes and regulations and administrative procedures act and regula-
tions equivalent to the 40 CFR 265 requirements] and [insert citation
to relevant State environmental regulations]. The State agrees to
modify or revoke and reissue these State permits as RCRA permits in
accordance with the following.schedule. [EPA intends that the schedule
in the MOA provide a reasonable time period for the review and upgrad-
ing of existing State permits, based on such factors as the number of
State permits and the additional permit terms and conditions needed to
satisfy the requirements of Part 271.]
VII. COMPLIANCE MONITORING AND ENFORCEMENT
A. EPA
Nothing in this agreement shall restrict EPA's right to inspect any
hazardous waste generator, transporter or facility or bring enforcement
action against any person believed to be in violation of the State
hazardous waste program. Before conducting an inspection of a gener-
ator, transporter or facility, the Regional Administrator will normally
give the State at least seven days notice of the intent to inspect in
accordance with 40 CFR 271.8(b)(3)(i). [The Regional Administrator and
State may agree on a longer period of time in order to.allow the State
opportunity to conduct the inspection.] If the State performs a com-
pliance, inspection and submits a report and data relevant thereto
within that time to EPA, no EPA inspection will be made, unless the
Regional Administrator deems the State report and data to be inade-
quate. In case of an imminent hazard to human health and the environ-
ment, the Regional Administrator may shorten or waive the notice
period.
The frequency of EPA oversight and training inspections will be speci-
fied in the annual State Work Program. Normally, EPA will accompany
the State on no more than 5% of the State's compliance inspections.
The Regional Administrator may take enforcement action against any
person determined to be in violation of RCRA in accordance with Section
3008(a)(2). EPA will take enforcement action only upon determining
that the State has not taken timely and appropriate enforcement action.
Prior to issuing a compliance order under Section 3008 EPA will give
notice to the State. EPA also retains its rights to issue orders and
bring actions under Sections 3013 and 7003 of RCRA and any other appli-
cable Federal statute.
After notice to the State, EPA may take action under Section 3008 of
RCRA against a holder of a State issued permit on the ground that the
permittee is not complying with a condition of that permit. In addi-
tion, EPA may take action under Section 3008 of RCRA against a holder
2.4-14
-------
of a State issued permit on the ground that the permittee is not com-
plying with a condition that the Regional Administrator in commenting
on that permit application or • draft permit stated was necessary to
implement approved State program requirements, whether or not that
condition was included in the final permit.
B. State
The State agrees to carry out a timely and effective program for moni-
toring the compliance by generators, transporters, and facilities with
applicable program requirements (see 40 CFR 271.15). As part of this
program, the State will conduct compliance inspections to assess com-
pliance with generator and transporter standards (including manifest
requirements), facility standards, permit requirements, compliance
schedules, and all other program requirements. Compliance monitoring
activities and priorities will be specified in the annual State Work
Program and shall be consistent with all applicable Federal require-
ments and with the State's Program Description.
[Insert any agreement the Region makes with the State regarding inspec-
tions at EPA-permitted facilities. Individuals in the State program
may be designated as EPA representatives under Section 3007 of RCRA so
that they can inspect the facilities for violations of the terms and
conditions of the Federal permits.]
The State agrees to take timely and appropriate enforcement action
against all persons in violation of generator and transporter standards
(including manifest requirements), facility standards, permit require-
ments, compliance schedules, and all other program requirements, in-
cluding violations detected by State or Federal compliance inspections.
The State will maintain procedures for receiving and ensuring proper
consideration of information about violations submitted by the public.
Appropriate State enforcement response may include not more than two
warning letters for any violation, followed by timely initiation and,
prosecution of enforcement proceedings which may be, as determined on a
case-by-case basis, administrative or judicial in nature. Any civil
penalty assessed, sought, or agreed upon by the State shall be appro-
priate to the violation, as defined in 40 CFR 271.16(c).
The State agrees to retain all records for at least three years unless
there is an enforcement action pending. In that case all records will
be retained until such action is resolved.
STATE OF U.S. ENVIRONMENTAL PROTECTION AGENCY
AGENCY ZZmUZHZIIZI REGION
BY: BY:.
DATE: DATE:
2.4-15
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CHAPTER 2.5
SHOWING.OF PUBLIC .PARTICIPATION
Federal Requirement
} 271 JO Approval |
(a) Prior to submitting an application
to EPA for approval of a State program.
the State shall issue public notice of its
intent to seek program approval from
EPA. This public notice shall:
(1) Be circulated in a manner
calculated to attract the attention of
interested persona including:
(i) Publication in enough of the largest
newspapers in the State to attract
statewide attention: and
(ii) Mailing to persons on the State
agency mailing list and to any other
persons whom the agency has reason to
believe are interested:
(2) Indicate when and where the
State's proposed submission may be
reviewed by the public;
(3) Indicate the cost of obtaining a
copy of the submission;
(4) Provide for a comment period of
not less than 30 days during which time
interested members of the public may
express their views on the proposed
program;
(5) Provide that a public hearing will
be held by the State or EPA if sufficient
public interest is shown or.
alternatively, schedule such a public
hearing. Any public hearing to be held
by the State on its application for
authorization shall be scheduled no
earlier than 30 days after the notice of
hearing is published;
(8) Briefly outline the fundamental
aspects of the State program: and
(7) Identify a person that an interested
member of the public may contact with
any questions.
(b) If the proposed State program is
substantially modified after the public
comment period provided in paragraph
(a)(4) of this section, the State shall.
prior to submitting its program to the
Administrator, provide an opportunity
for further public comment in
accordance with the procedures of
paragraph (a) of this section. Provided.
that the opportunity for further public
comment may be limited to those
portions of the State's application which
have been changed since the prior
public notice.
(c) After complying with the
requirements of paragraphs (a) and (b)
of this section, the State may submit, in
accordance with \ 271.J, a proposed
program to EPA for approval. Such
formal submission may only be made
after the date of promulgation of the last
component of Phase IL The program
submission shall include copies of all
written comments received by the State.
a transcript recording, or summary of
any public hearing which was held by
the State, and a responsiveness
summary whichjdentifies the public
participation activities conducted.
describes the matters presented to the
public, summarizes significant
comments received and responds to
these comments.
2.5-1
-------
Introduction
The State is required under §271.20(a)-(c) to provide the public with
an opportunity to comment on the proposed program application before it is
submitted to EPA for approval. A comment period of at least 30 days is to
be provided and, if sufficient interest is shown, a public hearing is to be
held no sooner than 30 days after the notice of hearing is published. The
State is required to submit the record of this public participation as part
of its authorization application.
Content
The State must demonstrate compliance with §271.20(a)-(c) by submitting
the following materials to EPA:
1. All written comments received by the State,
2. A transcript (preferred), recording, or summary of any public
hearing which was held by the State, and
3. A responsiveness summary which identifies the public partici-
pation activities conducted, describes the matters presented
to the public, summarizes significant comments received and
responds to the comments.
2.5-2
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CHAPTER 2.6
STATE STATUTES AND REGULATIONS
Federal Requirement
9 271.5 Elements of * program
submission.
(a) Any State that seeks to administer
a program under this part shall submit'to
the Administrator at least three copies
of a program submission. The
submission shall contain the following:
(1) A letter from the Governor of the
State requesting program approval:
(2) A complete program description,
as required by § 271.8 describing how
the State intends to carry out its
responsibilities under this subpart
(3) An Attorney General's statement
aa required by § 271.7;
(4) A Memorandum of Agreement
with the Regional Administrator aa
required by f 271.8;
(5) Copies of all applicable State
statutes and regulations, including those
governing State administrative
procedures; and
(6) The showing required by
§ 27l.20(c] of the State's public
participation activities prior to program
submission.
Introduction
The legal basis of State hazardous waste programs is found in the State
statutes and regulations.
Therefore, it is incumbent on the State to supply copies.of all appli-
cable legal, regulatory and administrative documents needed to evaluate the
State's authority and to support the State application.
Content
Copies of all State hazardous waste management statutes and regulations
must be included in the program submission. This includes copies of all
State statutes and regulations cited by the Attorney General
ment. For example, portions of the State Administrative
applicable to the proposed hazardous waste program must also
Where State statutes and regulations have "been amended, EPA
States submit up-to-date sets which
greatly facilitate EPA's review.
in his state-
Procedure Act
be submitted.
requests that
incorporate all changes. This will
2.6-1
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CHAPTER 2.7
STATE LEGISLATION CHECKLIST
Introduction
The checklist which follows is provided to aid attorneys and others in
reviewing and documenting State hazardous waste enabling authority for Final
Authorization under Section 3006(b) of the Solid Waste Disposal Act, as
amended (RCRA). EPA attorneys are encouraged to involve attorneys in State
Attorney Generals Offices or other State legal counsel in such reviews.
States are advised to look broadly to their legislative authorities in
assessing their programs.
To obtain final authorization, a State must have the enabling authority
to establish a hazardous waste management program which meets the
requirements of 40 CFR Part 271, Subparts A and 8. Anyone using the
checklist snould refer to Part 271 (and the regulations in Parts 270, 124
and 260-265 to the extent they are referenced in Part 271) for a full
understanding of the regulations for which a State must have enabling
authority.
Attorneys should look at all relevant State statutory authority, not
just a particular statute, when assessing State hazardous waste legislative
authority. For example, State administrative procedure acts are often
relevant. Most elements in the checklist identify enabling authority
required for Final Authorization. Five elements, however, ("importation
ban", "variance provisions", "exemptions", "information sharing" and
"siting") are included as a means :of identifying and recording features of
State law which may negatively affect a State's ability to receive final
authorization.
This checklist is intended for use as an evaluation tool and it
provides valuable assistance to EPA reviewers if submitted as part of the
application for Final Authorization. Also,, this checklist should be of use
to the State in identifying appropriate citations and comments to aid in
developing the Attorney General's Statement which is a* essential element of
the application.
2.7-1
-------
STATE LEGISLATION CHECKLIST
State
Title(s) of Legislation
Date Enacted
Date Enacted
Date Enacted
Reviewed by
DATE
STATUTORY ELEMENT
STATE CITE
COVERAGE
YES/NO?
COMMENT
DEFINITIONS
The State needs the authority to define the following terms in a manner at least
as stringent as the Federal program. If definitions of these terms appear in
State statutes, they must be at least .as stringent as the analogous Federal
Statutory or regulatory definition.
Disposal
Generator
Hazardous Waste*
Manifest
Person
Storage
Transport
Treatment
Treatment, Storage or
Disposal Facility
Waste (Solid)
,
.
Note that the State must have authority to regulate the recycling and reuse of
hazardous waste in a manner at least as stringent as the Federal program does.
HAZARDOUS WASTE IDENTIFICATION AND LISTING - [See 40 CFR §271.9]
Authority for:
1. HW characteristics
2. HW list
2.7-2
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STATUTORY ELEMENT
STATE CITE
COVERAGE
YES/NO?
COMMENT
STANDARDS FOR GENERATORS - [See 40 CFR §271.10]
The State needs the authority to regulate all generators EPA regulates under
40 CFR Part 262.
Authority to promulgate
regulations on:
1. 1.0. Numbers
2.
3.
4.
5.
6.
7.
8.
y.
10
Requiring generator to
determine whether waste
1s hazardous
Recordkeeplng^ practices
Packaging, labeling,
marking and placarding
practices
Use of appropriate
containers
Furnishing Information
Use of manifest con-
sistent with DOT and EPA
International Shipments
Designation of and delivery
to permitted facilities
Investigation of unreturned
shipments
1-L, Submission of reports
-
•
•
•
STANDARDS FOR TRANSPORTERS - [See 40 CFR §271.11]
The State needs the authority to regulate all transporters EPA regulates under
40 CFR Part 263.
Authority to promulgate
regulations on:
1. 1.0. numbers
2. Recordkeeplng
3. Labeling
4. Compliance with
manifest system
5. Spill notification
6. Spill clean-up
2.7-3
-------
STATUTORY ELEMENT
7. Transportation to
permitted facility
8. Consistency with
DOT regulations
STATE CITE
COVERAGE
YES/NO?
COMMENT
STANDARDS FOR HW STORAGE, TREATMENT, AND DISPOSAL FACILITIES -
[See 40 CFR §2.71.12]
The State needs the authority to regulate all of the owners and operators of
hazardous waste management facilities whom EPA regulates.
Authority to promulgate
regulations on:
1. 1.0. numbers
2. Recordkeeplng
3. Reporting
4. Monitoring
5. Inspecting
6. Compliance with
manifest system
7. Operating methods
8. Location, design,
construction
9. Contingency plans
10. Training
11. Ownership
12. Closure and Post-
Closure' activities
13. Continuity of
operation
14. Financial
responsibility
IS. General conditions (see 40
CFR §§270.30
-
^
PERMITS FOR HW STORAGE, TREATMENT AND DISPOSAL FACILITIES - [See 40 CFR §271.15
and 271.13]
1.
2.
Require Permits for owners
and operators of all TSO
facilities
Impose construction ban
•
2.7-4
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STATUTORY ELEMENT
3. Prohibit operation of
facilities without permits
(State may have an analogue
to Interim status)
4. Require permit
application Information
5. Require permits to contain
all technical and administra-
tive standards
6. Provide for permit modifi-
cations and termination
(revocation)
7. Allow public disclosure of
name and address of permit
applicants and permittees
STATE CITE
COVERAGE
YES/NO?
COMMENT
PUBLIC PARTICIPATION
Authority to provide:
1. Draft permit, fact
sheet, etc.
2. Notice of all draft
permits by radio
broadcasts and notices
1n newspapers etc.
3. 45-day public comment
period on all draft
permits
4. Informal hearing with
written notice of
opposition
5. Consideration of and re-
sponse to public comments
•
INSPECTIONS
1. Right to enter, Inspect and
obtain samples (at all
regulated premises and where
records are kept)
ENFORCEMENT - [See 40 CFR §271.16]
Authority to:
1. Immediately restrain
unauthorized activity
2. Sue to enjoin any threatened
or continuing program viola-
tion without prior revocation
of permit
"
2.7-5
-------
STATUTORY ELEMENT
3. Obtain civil penalties for
any violation (maximum no
less than S10K per day)
4. Obtain criminal penalties- for
specified violations (maximum
no less than $10K per day and
imprisonment with maximum no
less than six months); burden
of proof no greater than unde
Federal law
5. Allow intervention
(see 40 CFR §271.16(d)
STATE CITE
COVERAGE
YES/NO?
COMMENT
MISCELLANEOUS
1.
2.
3.
4.
5.
Authority to share all
information with EPA
Variance and waiver
provisions*
Importation ban*
Exemptions*
Sitinq*
•
May create problems for a State seeking authorization.
2.7-6
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•CHAPTER 2.8
CHECKLIST FOR COMPLETENESS OF SUBMISSION
Introduction
EPA specifies the elements of a State program submittal in §271.5.
Other Chapters in this Manual explain the purpose and content of the
individual elements of the submittal.
The Checklist in this Chapter is intended to help the State and EPA
verify that all required aspects of the State program are addressed in the
application. The checklist is helpful in determining the completeness of
any program submission; however it does not imply a judgment of the quality
or adequacy of the items submitted.
Content
The Checklist for Completeness of Submission identifies the required
document, letter, form, memorandum, statute, etc. in the first column. The
second column identifies the Chapter in this manual which describes the
contents of the item listed in column 1. The third column cites the federal
regulation, by section and subsection, which requires submission: of the item
in column 1.
2.8-1
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Checklist for Completeness of Submission
DOCUMENT
MANUAL
CHAPTER
40 CFR CITE
I. Governor's Letter
Requesting Authorization
(A) Signature
2.1
271.5 (a)(l)
II. Complete Program Description
(A) Narrative, Scope, Structure,
and Processes
(B) Identification of Lead Agency
(C) Description of State Agency
(D) Description of Staff
(E) Budget
(F) Sources of Funds and Restrictions
(G) Description of Permitting and
Administrative or Judicial .
Review Procedures
(H) Description of Compliance and
Enforcement Program
(I) Description of Manifest Tracking
System
(J) Estimated Number of Generators,
Transporters On-Site and Off-Site
Treatment Storage and Disposal
Facilities and Their Permit Status
(K) Quantities of Hazardous Waste
Generated In State, Transported In
and Out of State, and Treated or
Disposed of Within the State On-
and Off-Site (if available)
(L) Forms:
1. Permit Application Form(s)
2. Final Permit Form(s)
3. Report Form(s)
4. Manifest Form(s)
2.2
271.6
271.6(a)
271.6(b)
271.6(b)
271.6(b)(l)
271.6(b)(2)
271.6(b)(3)
271.6(c)
271.6(e)
271.6(f)
271.6(g)
271.6(h)
271.6(d)
III. Attorney General's Statement
(A) Identification and Listing
(B) Standards for Generators
(C) Standards for Transporters
(D) Standards for Facilities
(E) Requirements for Permits
(F) Inspections
(G) Enforcement Remedies
(H) Public Participation in the
State Enforcement Process
(I) Authority to Share Information
With EPA
(J) Signature
2.3
271.7
271.9
271.10
271.11
271.12
271.13, 271.14
271.15
271.16(a),(b) & (c)
271.16(d)
271.17
271.7(a)
2.8-2
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DOCUMENT
MANUAL
CHAPTER
40 CFR CITE
IV. Memorandum of Agreement (MOA)
(A) Provisions for transfer
of information
(8) Frequency and Content of Reports
(C) Conditions for Record Reviews
(D) Provisions for Compliance
Monitoring and Enforcing
(E) Provisions for Joint
Permit Review
(F) Provisions for Modification of MOA
(G) Provisions for Inspection of
Hazardous Waste Facilities
(H) Provisions for Inspection of
Generators and Transporters
(I) Provisions for permit review
(J) No restrictions clause
(K) Confidentiality Provisions
(L) Signatures
2.4 271.8
271.8(b)(6)
271.8(b)(2)
271.8(b)(2)
271.8(b)(3)
271.8(b)(8)
271.8(b)(ll) & (c)
271.8(b)(4)
271.8(b)(4)
271.8(b)(7) & (b)(9)
271.8(a) & (b)(5)
271.17)
271.8 & 270.2
V. Legislation (statutes)
(A) Hazardous Waste Management
(8) Administrative Procedures
(C) Other
2.3,
2.6,
2.7
271.5(a)(5)
VI. Regulations
(A) Hazardous Waste Management
(8) Other
2.3,
2.7
271.5
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APPENDIX A
STATE REGULATORY PROGRAM CHECKLIST
The checklists in this Appendix are intended to assist the Attorney
General and/or the State program office in demonstrating that the State
qualifies for final authorization. The instructions for completing these
checklists can be found on page 2.3-4. The organization of the checklists
Coincides with the Model Attorney General's Statement as listed below:
Checklist
Checklist
Checklist
Checklist
Checklist
Checklist
Checklist
Checklist
I A
I B
I C
II
III
IV A
IV 8
V
Identification and Listing
Waste Lists
Characteristics
Generator Requirements
Transporter Requirements
Facility Requirements
Facility Interim Status Requirements
Permitting Requirements
Checklist V
. Checklist V identifies the 40 CFR Part 270 and 124 permitting
requirements for final authorization. State programs must have legal
authority to implement each non-optional item on the checklist (see 40 CFR
271.14). Legal authority means that the State analogue to the Federal
requirement must be reflected in a State law, regulation, published opinion
of the Attorney General or other document with the force of law.
1. Procedural Requirements
State programs also must be administered in accordance with each item
on the checklist. In most instances this means that the State requirement
must be reflected explicitly in a State regulation. (Some State statutes
may contain such explicit requirements, which would also be acceptable.)
However, for some of the primarily procedural requirements on the checklist
(identified by asterisks), the State may be able to commit in the MOA,
rather than provide an explicit regulation, to satisfy the requirement of
§271.14. Such an agreement will be acceptable where the State agency is
willing to bind itself to a particular procedure (e.g., providing a 45-day,
rather than 30-day, public comment period) in the MOA and where the State
Attorney General certifies that (1) the State has the authority to enter
into the aareement. (2} the State has the authority to carry out the
into the agreement, (2)
agreement, and (3) no applicable State statute (including the State
administrative procedure act) requires that the procedure be promulgated as
a rule in order to be binding. For further discussion, see page 1.3-7.
A-l
-------
2. Optional Requirements
Some elements in Checklist V are labeled "Optional." The State does
not need to provide for a counterpart to these requirements; however, where
the State does have a similar requirement, the requirement must be at least
as stringent as the Federal one.
3. Contents of Permit Applications
The State does not need to use a two part permit application process.
Also, State regulations need not list all items in 270.13-29; however, the
State must require that permit applications from new and existing facilities
contain adequate information for the State to establish and determine
compliance with all permitting requirements (the State analogues to 40 CFR
Parts 270 and 264).
A-2
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CHECKLIST I A
IDENTIFICATION AND LISTING
FEDERAL REQUIREMENT
RCRA CITE
STATE AUTHORITY
STATUTE REGULATION
IF DIFFERENT FROM FEDERAL
REQUIREMENT, EXPLAIN
SUBPART A - GENERAL
DEFINITION OF SOLID WASTE
solid waste
waste material
discarded
disposed of
manufacturing or
mining byproduct
261. 2(a)
261. 2(b)
261. 2(c)
261. 2(d)
261.2(e)
DEFINITION OF HAZARDOUS WASTE
not excluded by 261. 4(b)
has characteristic
of Subpart C
listed 1n Subpart D
mixture
exceptions
meets listing
description
hazardous waste added
exhibits characteristics
remains hazardous waste
generated from treatment
waste not exhibiting
characteristics
excluded under 260.20
and 260.22
261.3(a)(l)
(1)
261.3(a)(2)
(11)
261.3(a)(2)
(111)
261.3(a)(2)
(1v)
261.3(a)(2)
261.3(b)(l)
261.3(b)(2)
261.3(b)(3)
261.3(c)(l)
261.3(c)(2)
261.3(d)(l)
261.3(d)(2)
EXCLUSIONS
not solid waste
domestic sewaae
261.4(a)
0)
261.4(a)(l)
A-3
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CHECKLIST I A (continued)
FEDERAL REQUIREMENT
mixture
Industrial wastewater
Irrigation return
nuclear material
1n-s1tu mining
solid waste which are
not hazardous wastes
household waste
returned to soil
as fertilizers
mining overburden
ash waste
drilling fluids
ore processing
cement kiln
discarded wood
exempt hazardous waste
samples
RCRA CITE
(11)
261.4(a)(l)
261.4
-------
CHECKLIST I A (continued)
FEDERAL REQUIREMENT
generator requirements
1n order to nave
waste excluded
comply with 262.11
storage
treatment or disposal
mixing with non-
hazardous waste
mixing with a sol Id
waste
RCRA CITE
261. 5(q)
261.5(q)(l)
261.5(q)(2)
261.5(g)(3)
261. 5(h)
261.5(1)
STATE AUTHORITY
STATUTE REGULATION
IF DIFFERENT FROM FEDERAL
REQUIREMENT, EXPLAIN
SPECIAL REQUIREMENTS FOR HAZARDOUS WASTE WHICH IS USED^ RE-USED, RECYCLED OR RECLAIMED
exemption from
regulations
beneficially used
accumulated for use
specific materials
transportation and
storage requirements
for waste listed 1n
Subpart 0
261. 6(a)
261.6(a)(l)
261.6(a)(2)
261.6(a)(3)
261. 6(b)
•
RESIDUES OF HAZARDOUS WASTE IN EMPTY CONTAINERS
waste remaining 1n
container
container not empty
definition of empty
definition of empty
compressed qas
waste under 261.33(c)
261.7(a)(l)
261.7(a)(2)
261.7(b)(l)
261.7(b)(2)
261.7(b)(3)
A-5
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CHECKLIST I 8
WASTE LISTS
FEDERAL REQUIREMENT
RCRA CITE
STATE AUTHORITY
STATUTE REGULATION
IF DIFFERENT
REQUIREMENT,
FROM FEDERAL
EXPLAIN
SU8PART 0 - LIST OF HAZARDOUS WASTES
GENERAL
excl uslons
hazard codes
hazardous waste number
261.30(a)
261.30(b)
261.30(c)
HAZARDOUS WASTES FROM NONSPECIFIC SOURCES
list of "F" wastes
261.31
,
§ 261.31 Hazardous wastt from non«p*e4flc tourc**.
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SOW
foot
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poor
foot
foot
foio
con
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a». >.t.i-
a*gr«u«ig oovioon*.
•nj n3tao*janr**r*f*. tre in* >M booem* from it* r»ce»«»'>
(T)
m
(2) «n ouang on careon »UM* (3) VK pueng iMervgawd MM) on careen iw«t (4) akjrmwn or
(SI OMmg/urppng «iino«i«ii wot M. me «na tunnxi oueng on caraon tu«t ind (6) " •
WaaMvaiv VMMMni K^»g»l mm irw cfwneal carr**ruo* OMUng ol
Seem cyana* ptaang
laMcni).
I M«
toMon* Iran «»mfOpniing
aoflom »>• Broeau (neap) 'or graooua
n««ait rwai »4trg want
-w >»• Mm 001 Oaanng).
liar vwonam wioon »om m«al rwai traaong ooaraMna lAar* cyanda* «r» uaad *• *«• proc*u («icap> lor graoou*
arto csaartrtg bam in .• ..^.. i .•• im ^^ «
EMang ieaM Mnpong «na ctaaiwg Mm loiuaon
rwai-raaang Tu«nef»r>j Mm
-------
CHECKLIST I 8 (continued)
FEDERAL REQUIREMENT .
RCRA CITE
STATE AUTHORITY
STATUTE REGULATION
IF DIFFERENT FROM FEDERAL
REQUIREMENT, EXPLAIN
HAZARDOUS WASTES FROM SPECIFIC SOURCES
Hst
of
11 K"
wastes
261.
32
} 281.32 Hazardous wa»tt from »p*clflc source*.
nuaraoui m
wood f»»»«r»«aort
X001
KOW
K003
KOO4
K003 ...
K008...
xoat.
Onjtnf QwmcM:
KOO*
K010
KOI1 ..
K01J
K014
K01S
K01S
KOI'
KOM
KOI9 '
K020
< •••••••m miujai ai ifx LJIUUULIILHI u) luyhjiauyt , , ,,„ ,
p^<|iiilu ltom 9m ^ju,-^^, ounvumn cownn n in* orooucaanaiKnmm*
Sai bonono Horn m* atmnaan o« B*nrr< enon)» _
OnUtooon ooflom l*n »om tn* oredunon o> pn*nei/K*ion* Ironi cv*n*n*.
"KK1 ujnomt^ ^y *r«di frem n* PIJI'I «ndi oafejrvi vwn •>• oraducfan of M I fftfvanwtfwv
•fnowi rt«,jii*i him irt*n* juii^iun riu.ii lu J_I_ILW% al in»w
- ^^. . ^ ^••iii fc^» at* *i •• x n ^-^"••rBi M« vu * "f^i ^ iiMmVMiam*
Sy-fftmuo ua a*n*rimi m *M eradunon o« USUA end e*oed>*e «o«
- W'ttttvvVMf WCOTIMrt AlUd^V ^O^* ^V pfOdU^^O*^ Ot OB>OPdBrt9 .
Stt oo*Vaitn from to *ndi v iMtMtton fwdum kom c^« OfUUrot ol l***enorob*>u*n* « it«* oroducwi ol 2.4. S-r
U«w*«t*d wt«i«w«t*r mm n* prooua-on of ?.«-O
Muvd cod* •
(Ti
(T)
rn
m
ro
(T)
(T)
(T)
(T)
m
(T)
m
rn
(T)
(T)
m
(Tl
rn
/Tt
(Tl
(T)
(Tl
ft)
(T)
(Tl
(T)
rn
(T)
(T)
m
m
m
rn
m
m
(Tl
(Tl
m
m
m
m
m
m
m
rn
m
A-7
-------
CHECKLIST I 8 (continued)
FEDERAL REQUIREMENT.
RCRA CITE
STATE AUTHORITY
STATUTE REGULATION
IF DIFFERENT FROM FEDERAL
REQUIREMENT, EXPLAIN
HAZARDOUS WASTES FROM SPECIFIC SOURCES
list of "K" wastes
261.32 (continued)
I™JU»carr
Wa«» wtcnrq iom»n from ted u«cnnf Of
i eomroi Outl/Vudg* from weonUry IMO vn*nng
Wnt«v«v VMtnwm Uuoon OfnartiM «»s VM prooucion of •«i*nn«Y anvmiewtjOM from vMrae or arg«n».«Mnc oomoowiai
OwMMn lv ftiami front tr>« i««i«ra«i « wMfw-ouM comoouodt »v afwm*c«uKcaH> irom v
orotno-arMrac compawM*.
i from trvt u» |