United State*
               Environmental Protection
            Off ic of
            Solid Waste and
            Emergency Response

TITLE: Cooperative Agreement Guidance for Starte
     Mining Waste Programs
               APPROVAL DATE: July 29, 1988

               EFFECTIVE DATE: July 29, 1988

               ORIGINATING OFFICE: office of solid waste

               E FINAL

               D DRAFT

               REFERENCE (other documents):
            [ ]  A- Pending OMB approval
            [ j  B- Pending AA-OSWER approval
            [ ]  C- For review &/or comment
            [ ]  D- In development or circulating

  OS WER      OS WER      OS WER

           United States Environmental Protection Agency
                 Washington. DC 20460
OSWER Directive Initiation Request
                                                                     1. Directive Number

                                   '2. Originator Information
       Name of Contact Person
         Harry  G. Stumpf
                   Mail Code
Telephone Code
 (202) 475-7241
       3. Title
              Cooperative Agreement Guidance for State Mining Waste Programs
       4. Summary of Directive (include brie) statement ol purpose)
         The purpose of this  document is to provide guidance to the Regions for evaluating
         coperative agreement applications from the States.  This guidance is to provide the
         criteria and procedures for distribution of cooperative agreement funds for State
         mining waste program activities in FY'88 and FY'89.  As a supplement to the regulations
         the guidance is to be used in developing and reviewing cooperative agreements,  (below)
          Wining Waste / RCRA / Subtitle D / Cooperative Agreement / State Program
       5a. Does This Directive Supersede Previous Directive(s):
                                                      Yes    What directive (number, title)
       b. Does It Supplement Previous Directrve(s)?
                                         What directive (number, title)
       7. Draft Level
           A - Signed by AA/DAA
             B - Signed by Office Director
C - For Review & Comment
         D - In Development
8. Document to be distributed to States by Headquarters?


This Request Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator  I -A 1 -3* /
V/xAAVft'* *-^ c***^**'*'* "
Jennifer A. .Barker/ Office of Solad Waste
10. Name and Title of Approving Official
Sylvia K. Lowrance/ Director/ Office of Solid Waste ..,..-
      EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.

      Summary continued:

      distributing  funds/ and monitoring activities.
   OSWER           OSWER               OSWER                O

                                                OSWER DIR. S9571.00-1A

                          WASHINGTON, D.C. 20460
A.^   .*?
% Po^
                                                           OFFICE OF

                                                  SOLID WASTE AND E VI E RGENCV RESPONSE
   SUBJECT:  Cooperative Agreement Guidance  for State
             Mining Waste Programs
FROM:     Sylvia K. Lowrance, Director ..
          Office of Solid Waste
   TO:       Regional Waste Management  Division  Directors

        Attached is the revised Guidance  for State Mining  Waste
   Cooperative Agreements which supersedes the. Guidance  dated
   November 18, 1987.  The earlier Guidance provided  for distri-
   bution of $1.95 million based on the number of mines,
   beneficiation plants, and processing facilities.   Budget
   priority changes for FY 1988 reduced the amount available to
   $415,OOO.  The fundable tasks now call for  participating
   States to gather information on their  respective mining wastes
   and regulatory programs to assist us with our regulatory
   development efforts.  Region VIII will distribute  the funds
   as the cooperative agreements are approved  by the  respective
   Regions .  These are two-year funds and must be spent  by the
   end of FY 1989.


   cc:  RCRA Branch Chiefs, Region I-X
        Brian Burgess, Region VI
        Rob Wai line, Region VIII
        Jerry Allen, Region VIII
        Mike Hanline, Region X

                                                 OSWER DIR. 09571.00-1A



        Regulations and Guidance
        State Eligibility
        Distribution  Mechanism
        Fundable  Tasks

        Reporting Requirements
        Future Funding

                                                OSWER DIR. #9571.00-1A

       Currently, all wastes  from the extraction, beneficiation,  and
  processing of  ores and  minerals are conditionally- excluded by RCRA
  Section 3001(b)(3)(A)(ii)  (the  Bevill Amendment to RCRA) from
  regulation as  hazardous wastes  under Subtitle C of RCRA.  Thus,
  these mining wastes fall within the jurisdiction of Subtitle D  of
  RCRA (the Subtitle D  program  addresses all solid wastes that are
  not regulated  as  hazardous  waste under Subtitle C of RCRA) and
  other laws administered by  States and other Federal authorities.
  The decision (51 R 24496,  July 3,  1986)  to create a special
  Subtitle D program for  certain  mining wastes was based on EPA's
  recognition that:  (1) the  current Subtitle D standards (in
  40 CFR Part 257)  are  aimed  principally at municipal and indus-
  trial solid waste  landfills  and do  not fully address mining
  waste concerns, and (2)  the  revisions to  Subtitle D (now being
  prepared as required  by RCRA  Section 4010) will also not address
  mining waste concerns.

       This program is  not part of the Subtitle C hazardous" waste
  program for which  States can  receive authorization under Section
  3006 of RCRA or for which  State financial assistance is avail-
  able under Section 3011  of  RCRA.  The mining waste program is
  entirely separate from  the  Subtitle C hazardous waste program.



       The purpose of this cooperative agreement program is to
  encourage the  States  with  experience in minerals industry-
  related issues to assist EPA  during its mining waste regulatory
  development program;   in  so  doing,  we hope to foster interstate
  and Federal-State communication and information-sharing.  The
  information gained under this program will be used to assist the
  Federal mining waste  regulatory development effort.

  Authori ty

       Section 4008(a)(2)(A)  authorizes appropriation of funds
  for financial  assistance to States  "for implementation of
  programs to provide solid waste management ...."  For FY'88,
  the budget  includes $415,000 in State cooperative agreement
  funds  to assist in the  development  of the mining waste program,
  but the  statutory authority is  not  specific in directing the
  manner  in which funds are to be distributed among States.

  Regulations and Guidance

       For FY'88, we intend to rely on the  existing cooperative
  agreement  regulations of 40 CFR Parts 30  and 35 Subpart A.
  These  regulations require a minimum match from the States of
  5%.   During FY'89 we  will decide whether  it is necessary or

                                              OSWER DIR. //9571.00-1A
                              - 2 -

desirable  to  develop  specific mining waste cooperative agreement
regulations.   Also,  if  future funds are made available, we intend
to develop  a  multi-year funding strategy that would consider
requiring  funded  States to:   (1) increase the match in subsequent
fiscal   years;  and  (2)  undertake steps to improve the State mining
waste program or  begin  institutional initiatives to carry out a

     This  guidance  is to provide the criteria and procedures for
distribution  of cooperative  agreement funds for State mining.waste
program  activities  in FY'88  and FY'89.  As a supplement to the
regulations,  the  guidance is to be used in developing and reviewing
cooperative agreements, distributing funds and monitoring activities.

     Specific activities funded under each State's annual work
program  will  be negotiated individually by the Regional Offices.
Regions  should  begin  working with their States in developing
draft cooperative  agreements as soon as possible to give the Regions
time for review and  approval so that timely distributions can be
made.  The  agreement  must identify the resources (dollars and FTEs)
associated  with each  task.   Cooperative agreements are to be
performance-based  with  quarterly work commitments clearly tied  to
resources.  All available cooperative agreement funds should be
spent by the  end  of  FY'89.   Any remaining FY'88 funds not spent  by
the Regions in  FY'89  will be reprogrammed or returned to the
     The funds  appropriated  for FY'88 under Section 4008(a)(2)(A)
will be  administered  by the  Waste Management Division, Region VIII,
and may  only  be used  for mining waste cooperative agreement eligible
activities.   (See  OMB Circular A-87 and 40 CFR 30.410.)  Funds  not
distributed or  committed to  a State may be used to supplement
distributions to  other  States.  Funds may not be diverted from
Subtitle C  to support mining waste activities or vice versa.

State Eligibility

     Only  States  for  which a single agency or department has been
designated  by the Governor to coordinate the tasks in the cooperative
agreement  are eligible  for FY'88 financial assistance.  Federal
cooperative agreement funds  may not pass through the designated
agency to  substate  or local  government offices.

Distribution  Mechanism

     The budget for  FY'88 includes $415,000 in State cooperative
agreement  funds for  the mining waste program.  Each Region will
send a copy of  the  approved  State cooperative agreement to the
Waste Management Division in Region VIII, which will distribute
the funds  on  a first-come,  first-served basis.  Regions should  be
aware that  a  separate grant  has been awarded to the Western

                                              OSWER DIR. 09571.00-1A

                                 - 3  -
Governors' Association  (WGA)  to  facilitate the involvement of the
western States for  similar  fundable tasks.  Therefore, Regions
should review the status  of  State  activities funded under the WGA
grant to  avoid duplicate  funding of similar cooperative agreement

    Regions are not  obliged  to enter' into a cooperative agreement
with  every State or  distribute a particular amount to any State.
All FY'88 funds should  be obligated by the Regions by the end of
FY'89. .

Fundable Tasks

  This section discusses  fundable  tasks for FY'88 and FY'89
State mining waste  cooperative agreements.  States need not under-
take all of the tasks in  FY'88.  Appropriate outputs and schedules
for individual States will  be determined by negotiations between
State and Regional Office staff,  considering the nature and extent
of the program within the State  and the needs within the State.
These State/Regional negotiations  should begin as soon as possible.

    Task 1:   Identify the quantities  and characteristics of the
             mining wastes generated  within the State.

    Task 2:   Identify existing State  statutory and regulatory
             programs and standards and the application of existing
             Federal standards on  mining wastes generated within
             the State.

    Task 3:   Evaluate the adequacy  of  existing programs and
             standards in protecting  human health and the
             envi ronment.

    Task 4:   Develop a preferred regulatory option to deal with the
             identified health and  environmental effects  _
             under existing programs  and standards.

    Task 5:   Coordinate with other  States to identify problems
             encountered with the  implementation of the preferred
             (or similar) regulatory  option.

    Task 6:   Evaluate the costs  of  implementation (by the State)
             of  regulatory scenarios.

                                                OSWER DIR. //9571.00-1A

                                _ 4  -

 III.  FEDERAL-STATE  RELATIONSHIP (Cooperative Agreement Award/
                                    Adminis tration)

      States or Regional  offices may initiate the cooperative
 agreement process.   States  may  submit draft agreements to the
 Regions or the Regions  can  provide draft work plans to their
 States for consideration.   Headquarters will, as a courtesy
 to the Region, review these when requested.  As soon as
 executed, a copy of  each  final  agreement (including work program)
 should be sent to Michael Flynn,  Acting Chief,  Special Wastes
 Branch, (WH-565-E),  Office  of Solid Waste,  Washington, D.C.

      In accordance with 40  CFR  Parts 30 and 35, Regions must
 hold one on-site review.  We recommend that two be scheduled,
 including a mid-year review in  concert with other on-site
 activities.  A review may also  be  combined  with the review
. of the FY'90 agreement.  Regions  may arrange for more frequent
 revi ews.
      A mid-year program review  for each State should examine
 progress towards completion of  fundable tasks.   Regions should
 also specify program follow-up  procedures whereby States respond,
 on a quarterly timetable, to the  Region's findings.  Reviews
 should identify:  (1) weakness in  the State's program;  (2) areas
 where the Region may help the State;  (3) approaches that could
 be shared with other States, and  (4)  approaches that could
 be shared with the developing Federal mining waste program.  Copies
 of all program review reports,  including the. performance
 evaluation final report, should  be submitted to Michael Flynn,
 Acting Chief,  Special Wastes Branch,  (WH-565-E), Office of Solid
 Waste,  Washington,  D.C.  20460,  within 30 days  of completion
 of the report.

 Reporting Requirements

      Headquarters may request information obtained during the
 performance of  the  cooperative  agreements.   The data may be used
 as a basis for  a future distribution mechanism, should funds be
 appropriated.   We will provide more  information on this in later
 guidance.   No  other reporting is contemplated as yet.

 Future  Funding

      Development  of future  guidance  will take into account data
 obtained  during the performance of  the  cooperative agreements.
 We will  continue  to pursue  the development  of a multi-year
 funding strategy,  including the investigation of Federal/State
 roles  at  various  funding levels and  other State support (e.g.,
 partial funding,  peer matching and  loan of  personnel), if funds
 are  appropriated.