vvEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 9542.00-3
TITI P- (PIG-81-2) Federal Register Notice
of Public Hearing and Comment Period
on State Applications for Interim
Authorizat ion
APPROVAL DATE:
EFFECTIVE DATE:
ORIGINATING OFFICE:
0 FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OSWER OSWER OSWER
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(PIG-81-2) Federal Register Notice
of Public Hearing and Comment'Period
on State Applications for Interim
Authorization
Summary of Directive
Memo answers the following. How should Federal Register notices
regarding public hearing and comment on State applications for
interim authorization be worded? What is the process for
publishing such notice?
Key Words:
. Interim Authorization
Type of directive (Mtnual. Policy Oirtctive. Announcement, eic./
Status
I
LJ Draft
®- Final
i Q°New
I 1 I Revision
Ooo tnis Directive Supersede Prtvious Directivels;> [ ] Yes | | No Does it Supplement Previous Directives)' f 'l Y*s | | No
If "Yes" lo Either Question. What Directive (number, title)
Review Plan
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D OEHR D OWPE
LJ OSW LJ Regions
D OECM
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LJ OPPE
LJ Other iSpeci
s Request Meets OSWER Directives System Format
of Lead Office Directives Officer
1 Date
Signature of OSWER Directives Officer
Date
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY" --••<->/
WASHINGTON. D.C. 20460
S 5 •- • o !'- ^ -« £• '
«7 O -. . . V '..- . . ' — -.
' OFFICE OF V/ATER
D T Q - 3 ]_ - 2 AND WASTE M A N A G E M £ N 7
MEMORANDUM
SUBJECT
FROM:
TO:
ISSUE
Federal Register Notice of Public Hearing and
Comment Period on State Applications for Interim
Authorization
Steffen W. Plehn
Deputy Assistant'Administrator
for Solid Waste (WH-562i
/•'
R. Sarah Compton
Deputy Assistant 'SJdmini-fetrator
for Water Enforcement (EN-335)
PIGS Addressees
How should Federal Register notices regarding public hearing
and comment on State applications for interim authorization
be worded? What is the process for publishing such notices?
DISCUSSION
A number of Regional Offices recently have asked about
the wording and publishing of Federal Register notices required
in 40 CFR 123.135(a). This guidance memorandum has been prepared
to provide for national consistency and to expedite the approval
process. This memorandum provides background information on
the regulatory requirements and presents suggested wording and
publication procedures for the notice. We wish to thank Laura Yoshii
of the Region IX Hazardous Materials Branch and Cheryl Koshuta
of the Office of Regional Counsel, Region X, for their invaluable
assistance in the preparation of the model notice-
Section 123.135 of 40 CFR describes the approval process
for complete State applications for interim authorization of hazardous
waste management programs. Section 123 . 135(a)(1) directs the
Regional Administrator to issue notice in the Federal Register,
and in accordance with § 123.39(a)(1) , of a public hearing on the
State's application for interim authorization. The Interim
Authorization Guidance Manual suggests that this notice be
published as soon as possible after the receipt of a complete
State application. (The regulation allows up to 30 days after
receipt before the notice must be issued.) The tighter schedule
found in the Manual is based on making a final decision on the
complete State application on an accelerated basis within 60 davs.
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Regional Offices should ensure that the application is
complete before issuing the notice. The complete application
should address all major issues raised by EPA during review
of the draft application, as well as contain all required
documents. When major issues have not been adequately addressed,
it may be desirable for the State to submit additional information
and application amendments before the application is considered
complete and before the Federal Register notice is published.
If, however, a notice is published and the State subsequently
submits significant new information or .program changes, it may
be necessary to issue a second Federal Register notice announcing
the availability of the new information and extending the public
review and comment period. In some instances, it may become
necessary to postpone the hearing or schedule a second hearing
to provide adequate public consideration of the significant
new information. This is a decision the Region should
make on a case-by-case basis as the situation dictates.
Efforts made at the outset to ensure that the State's application
is complete before issuing the notice can avoid later confusion,
delays, or impediments to public participation.
Section 123.135(a) requires that the public hearing be held
by EPA. no earlier than the 30th day after the Federal Register
notice is published. Expedited publication of thenotice will
enable the hearing to take place close to the 30th day after
the complete application is'received, thus keeping us on the schedule
toward timely approval of acceptable State programs.
The regulation also provides that where significant
public interest in a hearing is not expressed the hearing may be
cancelled if a statement to that effect was included in the public
notice. Also, State participation is required in any public
hearing held by.EPA.
In addition to EPV s Federal Register notice, public notice
must be issued in accordance with 40 CFR § 123 . 39(a) (1) . This
section requires the notice to 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 persons on the State agency
mailing list and to any other persons whom the agency has
reason to believe are interested."
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The regulations also specify that SPA must afford the
public 30 days after the notice to comment on the State's
submission and must note the availability of the State's submis-
sion for inspection and copying by the public. The State
submission must, at a minimum, be available in the main office
of the lead State agency and in the EPA Regional Office.
The Guidance Manual's review procedure for complete
applications states that the Regional Workgroup and Headquarters
Review Team must complete their respective reviews prior to
the public hearing, in order to facilitate interpretation of
public comments received at the hearing. After the hearing
has been held and public comments have been submitted, the
State Delegation Coordinator will be responsible for preparing
responses to the comments. The responses are to be reviewed by
the Regional Workgroup and the Headquarters Review Team.-
The §123.135(b) requirements for interim authorization approval
state that within 90 days after the initial notice in the Federal
Register, the Administrator must make a final determination whether
or not to approve the State's program, taking into account any
comments submitted. The Administrator must give notice of this final
determination in the Federal Register and in accordance with
§ 123 . 39(a) (1). The Administrator must include a concise, statement
of the reasons for this determination and a response to significant
comments received. Pages 1.2-8 and 1.2-9 of the Guidance Manual
provide additional information concerning the content,
timing, and concurrences in the Regional.Administrator's Action
Memorandum and official Federal Register notice of approval.
DECISION
We believe that consistent wording in the Federal Register
notices will promote public understanding of the program and
ensure that all regulatory.requirements are satisfied. A
model Federal Register notice which meets the requirements of 40
CFR 123.13 5(a) has been developed and is attached . This model
has been reviewed and approved by Federal Register attorneys
and editors. We suggest that all Regional Offices use this
basic format and wording, with the addition of appropriate
details concerning names, places, times, etc.
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-4-
The Model Federal Register notice contains optional sections
on Conduct of Hearings and Preparation of Transcripts. A specific
format for the hearings is not set forth in the regulations. Thus,
the format which is suggested in this model can be changed to meet
specific situations which may arise regarding the various
States. Once the format is established, this section can be
used in conjunction with the background information section of
the notice as general opening remarks for the hearing.
The suggested format provides for a panel to receive testimony
and to pose questions, as appropriate, to persons testifying. The
panel should recognize that its role is not one of defending a
particular course of action (i.e. approval or disapproval), the
State's program, or the Federal regulations. The decision to approve
or disapprove interim authorization can be made only after the
hearing; thus, the Agency will not have a final decision
to defend at the hearing. However, in some cases the Agency may
have developed a preliminary conclusion based on review of the
application prior to the hearing. In such cases the public
should be fully informed as to the Agency's "leanings". This can
be handled as a "Major Issue" identified in the Federal Register
hearing notice. Also, as-a minimum, the hearing chairperson should
identify the Agency's preliminary conclusion in the opening remarks
and should explain that the conclusion is only tentative, pending
the review of public comments and the proceedings of the hearing.
The purpose of the hearing is to receive information from
and the opinions of the public, and the panel should be encouraged
to ask clarifying questions of the public as appropriate. The
panel is to consist of EPA personnel, especially those who
have personally reviewed the State's application in depth.
We suggest that a representative of the State be present to
testify first, including in the testimony a brief description
of the State program, and to participate in any question and answer
session which the panel might provide at the hearing's conclusion.
(Any general question and answer session should be off the record.)
States may desire to use the hearing to satisfy their own
legal requirements to hold public hearings. Regional Offices
should then determine whether a joint SPA - State hearing is
desirable, considering the purpose of the State's hearing and
its relationship to EPA's hearing requirement. In some cases
joint hearings would be very cost-effective: States would not
have to bear the cost of conducting separate hearing; and the
public could avoid the cost of appearing at multiple hearings.
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However, at joint hearings whera the State participates
on the hearing panel we must avoid any appearance of State
involvement in EPA's decision-making. The hearing chairperson
can avoid such appearances by carefully and clearly explaining
the situation in the opening remarks. State participation on
the panel should be noted in the "Conduct of Hearing" portion
of the Federal Register hearing notice. Persons presenting
testimony should be asked to identi-fy whether their comments
are for purposes of the State proceedings or the EPA. proceedings.
The model also contains an optional section for listing
major issues of interest to EPA. This section is designed to
set out and briefly describe specific problems or issues which
have arisen during review of the State's application. The
listing of major issues may help to focus comments on particular
problems facing. EPA in the decision whether to grant interim
authorization to the State.
The notice should be double-spaced. The original sign.ed
notice and four copies should be sent to:
Federal Register Office (PM-223)
U.S. Environmental Protection Agency
401 M Street, S. W.
Washington, D. C. 20450
Attention: Carolyn Ward
A copy of the notice should also be sent to the HQ Review
Team Leader, for placement in the HQ Library with a copy of the
State application. (The notice should indicate that an application
copy is available for public inspection at the EPA HQ Library).
The EPA Federal Register Office will add appropriate log
and billing numbers and transmit the notice for publication.
Generally, EPA's Federal Register Office can review and transmit
the notice within a day. The notice should be published within
an additional three days. If you need information or special
assistance concerning publication, call Carolyn Ward at
FTS 237-0778.
Attachment
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PI'j-31-2. Attachment: Model Federal Register Motice
U.S. ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 123 (Subpart F)
[State] Application for Interim Authorization, Phase I,
Hazardous Waste Management Program
AGENCY: Environmental Protection Agency, Region .
ACTION: Motice of public hearing and public comment period.
SUMMARY: EPA has promulgated regulations under Subtitle C of
the Resource Conservation and Recovery Act (as amended) to
protect human health and the environment from the improper.
management of hazardous waste. Phase I of the regulations
were published in the Federal Register on May 19, 1930
(45 FR 33063). These regulations include provisions for
authorization of State programs to operate in lieu of the
Federal program. Today SPA is announcing the availability for
public review of the [State] application for Phase I interim
authorization, inviting public comment, and giving notice of a
public hearing to be held on the application.
DATE: Comments on the [State] interim authorization
application must be received by [a date at least thirty
days from the date of publication of this notice].
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PUBLIC HEARING:' EPA will conduct a public hearing on
the [State] interim authorization application at [Time] on
[a date no earlier than 30 days after the date of publication
of this notice]. FPA reserves the right to cancel the public
hearing if significant public interest in a hearing is not
expressed. The State of ; will participate
in the public hearing.
ADDRESSES: The public hearing will be held at:
[Room number, address, city, state].
Copies of the [State] interim authorization application
are available at the following addresses for inspection and
copying by the public:
[Address and phone number of the main office of the lead State
agency];
[Address and phone number of EPA Regional Office];
SPA Headquarters Library, Room 2404, 401 M Street, S.W.,
Washington, D.C.
Written comments and requests to speak at the hearing should
be sent to:
[Mame, address and phone number of person at E?^ Regional Office].
FOR FURTHER INFORMATION CONTACT:
[Name, address and phone number of EPA Regional Office
contact person].
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SUPPLEMENTARY INFORMATION: In the May 19, 1980 Federal Register
(45 FR 33063) the Environmental Protection Agency promulgated
Phase I of its regulations, pursuant to Subtitle C of the
Resource Conservation and Recovery Act of 197o (as amended),
to protect human health and the environment from the improper
management of hazardous waste. EPA1s Phase I regulations
establish, among other things: the initial identification and
listing of hazardous wastes; the standards applicable to generators
and transporters of hazardous wastes, including a manifest
system; and the "interim status" standards applicable to existing
hazardous waste management facilities before, they receive permits.
The May 19 regulations, also include provisions under which EPA
can authorize qualified' State hazardous waste management programs
to operate in lieu of the Federal program. The regulations
provide for a transitional stage in which qualified State programs
can be granted interim authorization. The interim authorization
program is being implemented in two phases corresponding to
the two stages, in which the underlying Federal program will take
effect. In order to qualify for interim authorization,
the State hazardous waste program must, among other things:
(1) have been in existence prior to August 17, 1980, and'
(2) be "substantially equivalent" to the F.ederal program.
A full description of the requirements and procedures for State
interim authorization is included in 40 CFR Part 123 Subpart F,
(45 FR 33479).
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The State of ' has submitted a complete
application to EPA for Phase I interim authorization. Copies
of the State submittal are available for public inspection and
comment as noted above. A public hearing is to be held on the
submittal, unless significant public interest is not expressed,
as also noted above.
CONDUCT OF HEARING
(No_te_: Where joint hearings are held to satisfy State
as well as Federal hearing requirements, this section should
be reworded to reflect any changes in hearing format and conduct.
See discussion of joint hearings on page 4 of PIG - 31 -£.,)
The hearing is intended to provide an opportunity for interested
persons to present their views and submit information for consid-
eration by SPA in the decision whether to grant [State] interim
authorization for Phase I of the RCRA program. A panel of EPA
employees involved in. relevant aspects of the decision will be
present to receive the testimony.
The hearing will be informally structured. Individuals providing
oral comments will not be sworn in, nor will formal rules of evidence
apply. Questions may be posed by panel members to persons providing
oral comments; however, no cross-examination by other participants
will be allowed.
The State will testify first and present a short overview-of the
State program. Other commenters will then be called in the order
in which their requests were received by EPA. As time allows,
persons who did not sign up in advance but who wish to comment
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on the State's application for Phase I interim authorization
will also be given an opportunity to testify.
Each organization or individual will be allowed as much time as
possible for oral presentation based on the number of requests
to participate and the time available for the hearing. As a
general rule, in order to ensure maximum participation and
allotment of adequate time for all speakers, participants
should limit the length of their statements to 10 minutes.
The public hearing will be followed, as time permits, by a
question and answer session during which participants may pose
questions to members of the panel.
PREPARATION OF TRANSCRIPTS
A transcript of the comments received at the hearing will be prepared..
To ensure accurate transcription, participants should provide
written copies of their statements to the hearing chairperson.
Transcripts will be available from [person and address]
approximately [ ] days after the hearing at a cost of S[ ].
MAJOR ISSUES OF INTEREST TO EPA
In order for a State program to receive interim authorization,
it must be substantially equivalent to the Federal program. EPA
is soliciting comment on all aspects of the substantial equivalence
of the [State] program to the Federal hazardous waste management
program. The Agency is particularly interested in public comment
on the following issues:
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[List specific points where questions exist as to substantial
equivalence.]
Oated: [date]
[Signature]
Regional Administrator
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