Environmental Protection
Agency
solid waste ana
Emergency Response
vvEPA
DIRECTIVE NUMBER:
9542.00-4
TITLEl; . (PIG-81-7) Final Determinations~on'State
' ations for Interim Authorization Action Memo
ieral Register Notice '. • :'".
EFFECTIVE DATE: 12/01/80
ORIGINATING OFFICE: osw.
0 FINAL
D DRAFT
STATUS:
[ ] A- Pending OMB approval '
[ ] B- Pending AA-OSWZR approval
[ ] • C-.For review &/or comment
[ ] D- In development or circulating
REFERENCf(btherdocumentsi: headquarters
OSWER OSWER OSWER
/£ DIRECTIVE DIRECTIVE L
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EPA
vVasnmgton. JC 20-60
OSWER Directive Initiation Request
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Name of Coniact Person
SPB
Ma.« Cooe - Branch
State Programs
38'2-2210
ueao Office
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LJ AA-OSWER
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Signature o( Office 0.rector
Oaia
(PIG-81-7) Final Determinations on State Applications for Interim
Authorization: Action Memo and Federal Register Notice.
Summary of --iirecv.
Memo answers the following. What subjects should be addressed in the Action Memo
and Federal Register notice ot final determination on State applications for interim
authorization? What is the processxfor development, review and dissemination of
these documents?
Key Words:
State Authorization
ype of directive tManual. Policy Directive. Announcement, etcj
{ LJ Revision
Doe) tnis Directive Supersede Previous Directives,
Yes | j No Does it Suooiement Previous Oirecnv«si; j_j ves ; i No
( 'Yes ' to Either Question, wnat Jireeiive /number, rn/el
Review Plan
LJ AA-OSWER
D OERR
D OSW
D OUST
D OWPE
LJ Regions
G OECM
D OGC
Lj
D
Otner :Soeci/yl
"eauest Meets OSWER Directives Svstem Format
S-gr-ature ol Leaa Office Directives Otticer
Date
.g.iatu'9 of OSWEH Oi'ectivei Officer
Date
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...:T;VE NO.
t> UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
•
. ? WASHINGTON. D.C. 20460
t WO"
DEC : • PIG - 3i -7
MEMORANDUM
SUBJECT: Final Determinations on State Applications for
Interim Authorization: Action Memorandum and
Federal Register Notice
FROM: ^''ateffen'W. Plehn ^'"'"^''•'"""'"""'"
Deputy Assistant Administrator
for Solid Waste (#3-562 L. -. __
'7 * .-
R. Sarah C ompt on
Deputy Assistant '^ElmiriijSt rat'or
for Water Enforcement (SN-335)
?IG3 Addressed
ISSUE
What subjects should be addressed in the Action Memorandum and
Federal Register notice of final determination on State applications
for interim authorization? What is the process for development,
review and dissemination- of._t.hese documents?
DISCUSSION
The basic requirements and procedures for final decision-making
on State applications for interim authorization are listed in 40 C?R
123.135(b), SPA Delegation 3-7 (as amended), and pages 1.2-8 and
1.2-9. of the RCRA State Interim Authorization Guidance Manual. This
guidance memorandum presents. these requirements and provides ad-
ditional information on this subject, including examples of the
Federal Register notice and Action Memorandum. "
UO CFR I23.135(b) provides that:
"Within 90 days of the notice in the Federal Register required
by paragraph- (a) (l ) 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 Admin-
istrator will give notice of this final determination in the
Federal Register and in accordance with § 123 . 39(a ) {1 ) . The no-
tification shall include a concise statement of the reasons for
this determination, and a response to significant comments re-
ceived. "
EPA Delegation 8-7, as amended, delegates this decision-making
authority to the Regional Administrator. It also provides that:
"Before issuing, denying or withdrawing interim or final au-
thorization for a State hazardous waste program under Section
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3006 of RCRA, the Regional Administrator must obtain the con-
currences of the Assistant Administrator for Water and Va.sta
Management, the Assistant Administrator for Enforcement and
the General Counsel. If these Headquarters offices do not
respond in writing within ten working days from receipt of
the action memorandum and draft Federal Register notice, the
RA may assume these offices' concurrence."
The RCRA State Interim Authorization Guidance Manual provides
a discussion of the Action Memorandum, preparation and review process:
"After the Headquarters Review Team comments on the responses
to the public comments, an Action Memorandum for the Regional
Administrator will be prepared by the S-tate Delegation Coordina-
tor and the Regional Counsel. This Action Memorandum should con
tain a specific recommendation with.respect to the approval of
the application.
The Action Memorandum should highlight specific questions or pro
blem areas and provide some insight into key agreements reached
during the drafting stage. The Action Memorandum should provide
space for Headquarters and Regional Office concurrence sign-offs
An additional item to be included in the package which goes to
the Regional Administrator is a-Federal Register Official Notice
of the Approval.
It is importajvt that the Action Memorandum represent the
recommendations of the Regional Workgroup members and the He
quarters Review Team in order to expedite the concurrence si
offprocess.
Each Regional Workgroup member and Headquarters Review Team mem-
ber has the responsibility of briefing his/her respective Div-
ision Director or Office Director on the final recommendation
in advance of the transmittal of the Action Memorandum to ensure
that there will not be any unnecessary delays in the concurrence
process. Coordination of the concurrence sign-off in Washington
rema ins with the Headquarters Review Team Leader and the State
Delegation Coordinator in the Region.
In the event the concurring offices cannot agree on the
final determination, it is the Regional Administrator's
responsibility to resolve the problem with the Administrator."
Several questions have been raised concerning implementa-
tion of these requirements, such as: What information should be
in the Action Memorandum? How should the Federal Register notice
be worded? Who sends the Action Memorandum and who receives it?
How are HQ officials involved in the review and concurrence process?
The remainder of this memorandum provides answers to these questions.
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DECISION
The Action Memorandum should contain the following items
noted in the Manual:
0 Highlights of specific questions or problem areas,
raised in EPA review or significant public comments;
0 Discussion of key agreements reached during the
drafting of- the State's application (e.g., how the
State responded to SPA comments);
0 A specific recommendation with respect to approval
of the application; and
" Spaces for the concurrences of the Assistant
Administrators and General Counsel and for the
signature of the RA.
A draft Federal Register notice of final determination on the
application should be attached to the Action Memorandum. The Fed-
eral Register notice must contain a concise statement of the reasons
for the Agency's determination on the State application and concise
responses to significant comments received from the public. The
discussion of reasons for the decision should .indicate that the.
State does or does not satisfy the UO CFR 123 Subpart F require-
ments for Phase I of interim authorization. The response to public
comments should especially note any comments received in regard to
"Major Issues of Interest to SPA" listed in the earlier Federal
Register notice of public comment and public hearing. The effective
date of the authorization can be the date of the notice's publica-
tion or a later date and should be specified in the Federal Regi ster
notice. The notice should be double-spaced, as required by Federal
Register procedures. " . . ,
Attached are copies of the Action Memorandum and
Federal Register notice on Arkansas' complete application.
These documents provide an example of how to cover the topics
discussed in this memorandum. It should be noted, however,
that the Arkansas application and public hearing were relatively
non-controversial. In States -where a larger number of critical
issues have been raised or where the 'authorization decision is
less straightforward, it may be.necessary to expand the discussion
of specific questions, comments, and agreements reached during
earlier stages of the process. (We wish to thank Region VI
for the competent preparation of the Arkansas documents.)
As the Guidance Manual indicates, the State Delegation
Coordinator and Regional Counsel should prepare the Action
Memorandum package. These papers should reflect the recommen-
dations of both the Regional Workgroup and Headquarters Review
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Team if possible. Such a consensus will expedite the concurrence p
cess. The package should receive the concurrences of the Regional
Workgroup on the yellow file copy before being transmitted to the
RA.
We suggest that the Action Memorandum be addressed from
the RA to the two Assistant Administrators and the General Counsel,
since the concurrences of these HQ offices are being solicited. After
the RA has reviewed and signed the Memorandum, it should be t ransrai t ~ e :
along with the draft Federal Register-notice to the HQ Review Team
Leader. Thi's person will provide copies to the two Assistant Admini-
strators, the General Counsel and HQ Review Team members on the day
the package is received. The 10-day HQ review period will take
place concurrently in all three offices. Because of the brevity of
the review period, HQ offices should promptly identify any remain-
ing major problems and immediately raise them with their AA/GG and
Regional counterparts. This -will expedite attempts to resolve the
problem and develop approaches agreeable to all parties. The HQ
Review Team Leader will collect the three HQ offices' responses
and return them to the Region.
If any of the HQ offices do not respond within the 10 working day;
the RA may assume the office's concurrence with the Region's recommen-
dation. (The HQ Review Team Leader will magnafax HQ responses to the
RA if necessary to meet the 10-day deadline.) If one.or more of
the HQ offices nonconcurs with the recommendation, and. no resolution
can be reached, it is the RA's responsibility to resolve the probl
with tire Administrator. It is our hope,-however, that through the
review process discussed above, disagreements can be resolved and for-
mal non-concurrences and appeals to the Administrator can be avoided
in most cases.
After obtaining HQ concurrences, the Region's State Delegation
Coordinator should send an original signed Federal Register
notice and four copies to:
Federal Register Office (PM-223)
U.S. Environmental Protection Agency
U01 M Street S.W.
Washington, D.C. 20U60
Attention: Carolyn Ward
A copy of the sig.ned Federal Register notice should be sent
at the same time to the HQ Review Team Leader.
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The SPA Federal Register offics will add appropriate log and
billing numbers and transmit the- notice for publication. Generally,
'this office can review and transmit the notice within a day after
receipt. The notice should be published within an additional three
working days. If you need information or expedited treatment, call
Carolyn Ward at FT 5 237-0778.
In addition to the Federal Register notice, the final
determination must be announced in accordance with UO CFR
123«39(a ) (1). This section requires that a notice be:
"...circulated in a manner calculated to attract the
attention of interested persons including: (i) publi-
cation 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 i-eason to believe are
interested."
Finally, we wish to call attention to the requirement in ^0
CFR 123-135(b) that the final determination be made within 90 days
of the initial Federal Register notice of public comment. We will
define "final determination" as the date on which the Federal Reg-
ister notice of final determination is signed by the RA following
the completion of the HQ concurrence process. The preparation,
review and final approval of the Action Memorandum and Federal
Register no'tice must be accomplished within this 90 day period.
Attachment
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DATE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
October 30, 1980
SUBJECT
FROM
Phase I Interim Authorization of Arkansas' Hazardous
Waste Management Program — ACTION MEMORANDUM
Adlene Harrison
Regional Administrator
Eckhardt C. Beck
Assistant Administrator for
Water and Waste Management (WH-563)
Michele Beige! Corash
General Counsel (A-130)
Jeffrey G. Miller
Acting Assistant Administrator
for Enforcement (EN-329) .
ISSUE
In the attached Federal Register notice, I grant Phase I interim
authorization of the State of Arkansas' hazardous waste management
program according to section 3006 of the Resource Conservation
Recovery Act of 1976 (RCRA) and 40 CFR Part 123.
is. required before we can publish the notice
in
and
Your concurrence
the Federal Register.
DISCUSSION
The State of Arkansas submitted its draft application for Phase I
interim authorization on July 30, 1980. In our comments to the State,
we identified four -,ajor'problem areas, namely (1) deficiencies re-
garding the right of citizens to intervene in enforcement actions; (2)
restrictions on availability to EPA of State program information with-
out restriction; (3) lack of detail in the Authorization Plan; and (4)
limitations in the Memorandum of Agreement concerning EPA's oversight
responsibilities. ......
The State submitted its final application on September 11, 1980. The
application remedied most problems in the first area. However, EPA
desired additional assurances that departmental policy on public partici-
pation in enforcement actions would be endorsed by the Commission on
Pollution Control and Ecology. Therefore, on September 26, 1980, the
Commission adopted a resolution endorsing the Federal requirements for
public participation in enforcement actions.
In a letter dated September 29, 1980, the attorney authorized to sign
the Attorney General's statement stated that "upon request from the EPA,
any information obtained or used by this Department in the administra-
tion of the RCRA program may be made available to EPA upon its request
without any restrictions except those which are placed upon the EPA by
any applicable laws or regulations." This letter clarified all stated
reservations to possible restrictions on EPA's access to State program
information.
EPA Form 1320-6 (Rev. 376)
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The Authorization Plan submitted with the final application specifies
with sufficient detail the actions the State will take to seek and
obtain Phase II Interim Authorization and Final Authorization.
The Memorandum of Agreement was also revised to include EPA's comments.
In addition, the State submitted additional information about the
Arkansas Transportation Commission's portion of the State hazardous
waste program, including an elaboration of the Commission's respon-
sibilities, enforcement authority, and coordination procedures.
EPA gave the public sufficient time to comment on the State's applica-
tion. Vie held a public hearing on October 20, 1930. We also held open
the public comment period until October 27, 1980. The three comments
we received were presented at the public hearing.
An industry representative requested that the procedures for handling
confidential information be revised so that EPA would request such
information directly from the firm. The comment?r was concerned that
adequate protection of such information be provided.
In our opinion confidential information will be adequately protected by
the procedures set forth in 40 CFR Part 2. As discussed in the Attorney
General's statement, there is adequate protection for information
transmitted between EPA and the State through procedures that allow
claims of confidentiality to be asserted and evaluated when such
transfer of information occurs. Any information for which confi-
dentiality is requested must be treated as such by both the State and
EPA once a claim of confidentiality has been reviewed and*its validity
has been accepted.
The second commenter remarked that there were no guidelines or specifi-
cations for equipment to be used by transporters of hazardous wastes.
The standards for transporters can be found in 40 CFR Part 263.
Packaging requirements may also be found in 40 CFR Part 262.
The other comment related to whether the State would have an adequate
well-trained staff and proper funding to operate the program. We have
concluded in accordance with national guidelines on state resources that
the State currently has adequate resources to operate Phase I of the
program. The Department of Pollution Control, and Ecology has submitted
a budget to the State Legislature that should provide adequate resources
to meet EPA's requirements for Phase II Interim Authorization. This
budget request, of course, is subject to approval by the State Legis-
lature.
RECOMMENDATION
In your memorandum of October 6, 1980, you expected "to concur in
granting authorization to this program" realizing, of course, that "a
final determination to approve the State program cannot be made until
comments submitted by the public have been taken into account". I
therefore recommend that you concur in my action and publish the
attached notice in the Federal Register.
Attachment
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_Concur Eckhardt C. Beck . Date
Assistant Administrator
_Non-concur for Water and Haste Management
_Concur . Michele Beigel Corash Date
General Counsel
Non-concur
_Concur Jeffrey G. Miller Date
Acting Assistant Administrator
Non-concur for Enforcement
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