vvEPA
              United States
              Environmental Protection
              Agency
            Office of
            Solid Waste and
            Emergency Response
DIRECTIVE NUMBER:

TITLE:
                               9541.00-4
                   Review of State Capability.in RCRA Final
                   Authorization
               APPROVAL DATE:

               EFFECTIVE DATE:
                             osw
            2/21/84

            2/21/84

ORIGINATING OFFICE:

0 FINAL

D DRAFT

 STATUS:    !  !
                             A~ Pending OMB approval
                             B- Pending AA-OSWER.approval
                             Cr. For. review.. &/or comment ,
                             ?~A:^el
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      EPA
                                       Wasnmgton. uC 2O*60
                       OSWER Directive Initiation Reauest
                                                                               • r..-t n.
                                                 9541.00-4
Name of Contact Person
     SEE	
 Man Coae  -   Branch
 	State Programs
                                                                       332-2210
 L..dOfi,c.
    D OERR
                                                          Aoprovea tor Review
                    OWPE
                 Q AA.
 Signature of Office Director
                                                                              Date
 Title
   Review of State Capability  in RCRA Final  Authorization
Summary of Directive
   Prior  to a final  authorization decision on a state's hazardous waste  program
   under  Subtitle C  of  RCRA, a  joint review of state  capability should take place.
   The capability review should (a) describe the major aspects  of past state
   performance relevant to state  capability under final authorization, (b)  outline
   the steps agreed  to  by the region and  state to enhance program capability and
   (c) include a statement that affirms that these actions will result in  the
   implementation of a  quality  RCRA Program.  OSW to  develop guidance to implement
   the new requirements.
 •Cey Words:
   Capability Assessment
 yp« of Directive iMinuai. Policy Oirtcii**. Announcimtnt. ere/
                                                                 Status
                                                                I    .M.
                                                                !    LJ Ortft
                                                                !    go Final
                                                                                     G New
                                                                                     n
                                                       Revision
Does- tnis Directive Supersede Previous Directive**;'   |  | Yes   j_J No   Does it Suoo'«Ti«nt Previous Directive^!'   I < Yes   j	|  No
  Ye»" to Enf.er Question. Whit Directive fnuir>b*r. nil*/
 eview Plan
   LJ AA-OSWER
   U OEBR
   O OSW
                D OUST
                D OWPE
                LJ Regions
D OECM
G OGC
Q OPPE
G
   Request Meets OSWEB Directives System Format
       of Lead Office Directives Officer
                                                                              Date
       of OSWER Directives Officer
                                                                              ' Date

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hasardous waste managenent program  under RCRA oust  be a cowtitMttt
to quality in the per»lts we  issue, the  enforcearant actions) we .-..
initiate, the corrective steps we undertake,  and  the information
we provide to the public on program accomplishments.  The State*
are pivotal to the success of this  effort.  Our joint commitment
to quality under final authorization  is  critical  to nesting our
mandate under the statute.  Capable managers  at all levels working
together toward coomon objectives is  a prerequisite to an effective,
high quality program.

     It is appropriate, therefore,  to re-affirm the importance of
jointly completing with the States  a  detailed review of prograw
capability as a Key component of  the  final authorization process.
The enactment of State statutory  authority and promulgation of
regulations, although critical ateps, must he coupled with a firm
commitment to enhance program capability to effectively implement
the authorized state prograia.

     It i» imperative that you reach  agreement with each State,
t>etore th* final authorization decision  is made,  on the steps
neceMftry ta strsaqthen program capability and sustain a quality
State BC3A pr*grasi over time.  I  am optimistic that the States will
have achieved adequate program capability to  implement the RCRA
program.  However, if your joint  review  with  the  State leads
you to conclude that the State does not  have  this capability,
you should be prepared to recomaend that the  State's application
for final authorisation be denied.

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The Review of State Capability

     The Region and State should jointly conduct a detailed
review of state capability to identify areas that require
strengthening.  This review should use information gathered
in previous review* or analyses, particularly the raid-year
and end-of-year evaluations and other activities related to
the annual program grant.  The review should address those
portions of the Federal program a State haa been conducting
for EPA (if under a cooperative arrangement) or in lieu of
EPA (if they have interim authorization).  In the latter
instance, more stringent State requirements may be included
if they are part of the program authorized by EPA.  Areas of
a State's program broader in scope than the Federal program
are not part of the authorized program and need not be included
in the review.

     The review must be broad enough to isolate the issue* and
needs of both EPA and the State to manage the program under
final State authorization.  It must provide for:

     *  An Assessment of the Quality of The State's Past
        Performance Under Interim Authorization or Cooperative
        Arrangements.  Areas to consider include:

           The compliance monitoring and enforcement program
           under interim authorization or cooperative arrange-
           ments/  including an analysis of the number and
           thoroughness of inspections, th<3 number, type and
           timeliness of enforcement actions, and the
           ment shown by tne State in orin^iavy vio
           into compliance.

        -  The permitting program under interim authorization
           ^r cooperative arrangements, including the numb«r
           and types of permit actions handled, conformance
           to technical and procedural requirements, and
           future  permitting strategy.

        —  State program management,  including resources, skill
           •ix.  State organization,  institutional constraints
           (organization, salary rate, etc.), training needs,
           legal support, and timeliness for filling vacancies.
           Even  when auch areas cannot be directly influenced
           by  EPA  or the State program (e.g., salaries) they
           should  be noted.

     •   The Identification of State and SPA Actions Which will
        Be  Taken To ensure State Capabilities.  The actions
        shouldt

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         • D*fin« resource  levels, skill nix, training needs
          and other factors necessary to address management
          issues raised  in the assessment of past performance.

         • Address the level of Regional involvement in direct
          activities after final authorization, and the form
          and content of oversight and assistance over time.

         - Recognize the  value of flexible State management
          approaches and, where appropriate, account for state
          institutional  constraints or other unique features
          that determine the fora of the authorized program.

Use of The Review In Pinal Authorisation Process.

     The joint review of State capability should take place as
early in the final authorization process as possible, most
appropriately before the draft application is submitted to
     The tteraorandua of Agreement (MOA) or an equivalent document  .->
 (e.g., joint letter of intent) should reflect agreement on the
 responsibilities of both EPA and the State in sustaining prograa
 quality over time.  Through the MOA, the Regions and State*
 should agree to uae the program grant process to annually (-or
 more frequently) identify and commit to specific actions required
 to strengthen the State program,  the specific commitments and
 associated resource impact should be incorporated into the State's
 grant work program.

     To facilitate the final authorization decision, your Action
 Memorandum transmitting the federal Register Notice of Tentative
 Decision (or Final Decision if State is later in the authorization
 process) must: (a) describe the major aspects of past State perform-
 ance relevant to State capability under final authorization,  (b)
 outline the steps agreed to by the Region and State to enhance
 program capability, and (c) include a statement that affirms  that
 these actions will result in the implementation of a quality RCRA
 program.  As stated before, if you conclude from your review  that
 a state do«* not have the capability to implement the RCRA program,
 then you should reccanend that the State's application be denied.

     Tiswly completion of the review is critical to demonstrate
 that proper consideration has been given to identifying and
 resolving State capability questions prior to the decision on
 final authorization.  Because we have already received several
draft and official applications, the following schedule should
be followed:

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     0  For States whicn nave not yet submitted an otficial
        application, the capability assessment should oe
        addressed in tne Action Memorandum tor tentative
        decision.

     *  For states which have submitted an official applica-
        tion the assessment should also be addressed (where
        possible) in the Action Memorandum for tentative
        decision.  However, if it is too late in the review
        process to permit this, the assessment should be
        addressed in the Action Memorandum for final
        determination.

In no case is the review of State capability to be completed later
than the final Action Memorandum and Federal Register Notice) of
Final Decision.

     As you Know, I have established a joint Region/State task forqe.
to consider the question of RCRA program quality.  The outputs frc* .
this task force will provide more specific guidance and policy on  ,-.-
criteria to be used in evaluating program performance under final  '•"
State authorization,  we do not expect to issue the final policy on
RCRA program quality until April, 1984.  However, to -the extent
feasible you may wish to use the criteria developed by the task
force to assist you in performing the State capability reviews
outlined above.  The criteria you use snould be based on the
circumstances appropriate to your situation and your experience
with each state.

     Support and assistance in completing the reviews during the
final authorization process will De provided by the Permits and
State Programs Division, Office of Solid waste.  The State Programs
branch will be developing recommended MOA language, a model Action
Memorandum and a sample review of State capability to implement
the new requirements.  This will be completed in spring, li»84.

ccs  Kegional Hazardous Waste Management Division Directors
     usWBR Office Directors
     Kirk Sniff, Office of Enforcement and Compliance Monitoring
     Lisa ?rie
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