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
/£   DIRECTIVE   DIRECTIVE    Di

-------
                                                                  I  I
  v/EPA
                                 ..      .
                     Wasnmgton. uC 2W60

      OSWER Directive Initiation Request
                                          •r.i-r.n. O.i< .:..c °..r-.;,?'

                                           9542.00-3  ,
 Name of Contact Person

      SPB	
                  J Coot  -   Branch
                     OSW
 Lead Office

   CD OERR

   S OSW
Q OUST

Q OWPE
LJ AA-OSWER
Signature of O'dce O.recroi-
                              'or Review
                                          Oaie
 Tills
        (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

   LJ AA-OSWER  CD" Q'JST

   D OEHR      D OWPE

   LJ OSW      LJ Regions
               D OECM

               D OGC

               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

-------
            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.

-------
     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."

-------
      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.

-------
                                -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.

-------
                           -D-
      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

-------
       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].

-------
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].

-------
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).

-------
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

-------
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:

-------
[List specific points where questions exist as to substantial




equivalence.]








Oated:  [date]






	[Signature]	
  Regional Administrator

-------