c/EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: •~-»-*,-L £
95^0. DO -/A
TITLE: Effect on State Authorization of HSWA Section
3006(f): Availability of Information
APPROVAL DATE:
EFFECTIVE DATE:
ORIGINATING OFFICE:
G FINAL
E DRAFT
Office of Solid Waste
STATUS: For Marcia William's approval; draft
circulated to Regions for their input
REFERENCE (other documents):
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE L
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United States Environmental Protection Agency
^ Washington. DC 20460
V>EPA OSWER Directive Initiation Reauest
Originator Information
ntenm Directive Number
fiJJD 1 , i-«.
Name of Contact Person Mail Code Telephone Number
Madison, Martha A. WH-563-B 382-2229
Lead Office r~| • Approved for Review
Dr— i Signature of Office Director
OERR | | OWPE \ -\ , /
ED OSW n AA-OSWEH ^ITU'. l'.3lMX -fctV jWlt-* UJU&-*^,
Title \J
EFFECT ON STATE AUTHORIZATION OF HSVjZA SECTION 3006 (f ) : AVAILABILITY OF
Date
INFORMATION
Summary of Directive
Any State applying for final authorization or after November 8, 1985, must
include a Section 3006 (f) demonstration of compliance in its application. States
with final authorization (regardless of the date they received or will receive
final authorization) must modify their programs to reflect Federal program
revisions. States must meet the one year/ two year deadlines in Section 271. 2 (e) .
The "clocks" began on November 8, 1984. This document serves two purposes. First,
it describes the deadlines by which States must adopt provisions analogous to
Section 3006 (f ) . Second, it expands on the discussion of this Section in the
preamble to the final cod rule, and explains how EPA intends to determine whether
States have satisfied the Section 3006 (f) standards.
Type of Directive /Manual. Policy Directive. Announcement, etc.) Status
IK) Draft
Guidance Document/Memo Format r— i
1 1 Final
LJ New
LJ Revision
Does this Directive Supersede Previous Direcfivefs)? f I Yes K. 1 No Doe's It Supplement Previous Directives)? [ ] Yes [Xj No
If "Yes" to Either Question, What Directive (number, title)
Review Plan
D AA-OSWER D OUST D OECM D Other (Specify)
D OERR 09 OWPE ID OGC
5D OSW 0 Regions G OPPE
This Request Meets OSWER Directives System Format
Signature of Lead Office Directives Officer
Signatur&of OSWER Directives Officer
/a A~±A/
MMyXwufastAK*^
Date
Date
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EPA Form 1315-17(10-85)
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
DRAFT
SOLID WASTE A.\D EVEBGENO RESPONSE
MEMORANDUM
SUBJECT: Effect on State Authorization of HSWA
Section 3006(f): Availability of Information
FROM: Marcia E. Williams, Director
Office of Solid Waste (WH-562)
TO: Addressees
Section 3006(f) of the Hazardous and Solid Waste Amendments
of 1984 (HSWA or the Amendments) provides that:
No State program may be authorized by the
Administrator under this section unless
(1) such program provides for the public
availability of information obtained by
the State regarding facilities and sites
for treatment, storage and disposal of
hazardous waste; and (2) such information
is available to the public in substantially
the same manner, and to the same degree, as
would be the case if the Administrator was
carrying out the provisions of this subtitle
in such State.
This statutory requirement was incorporated into EPA's State
authorization regulation by the RCRA Codification Rule,
50 FR, 28754 (July 15, 1985), 40 CFR §271.17(c).
This document serves two purposes. First, it describes the
deadlines by which States must adopt provisions analogous to
Section 3006(f). Second, it expands on the discussion of
Section 3006(f) in the preamble to the final codification rule
and explains how EPA intends to determine whether States have
satisfied the Section 3006(f) standards.
Schedule for Obtaining Authorization
States initially applying for final authorization must
reflect the Federal program in effect one year prior to sub-
mission of the official application. Section 3006(f) took
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effect on the datie of enactment of HSWA, November 8, 1984.
Therefore, States which initially apply for final authorization
prior to November 8, 1985, are not required to demonstrate compli-
ance with §3006(f) in their applications. Conversely, any State
submitting an official application on or after November 8, 1985,
must include a 3006(f) demonstration in its application. Under
-he statute, no extensions are available for States initially
applying for" authorization.
Staies with final authorization (regardless of the date
they received or will receive final authorization) must modify
their programs to reflect Federal program revisions. Stat.es
must meet the one year/two year deadlines in §271.2(e) in
making their modif ications. The one year/two year "clocks"
began for this provision on the date of enactment., November 8,
1984.
The schedule for Stages with final authorization may be
affected by a rule-making EPA is about to start. For purposes
of revisions to authorized programs to accomodate non-HSWA
requirements and §3006(f), EPA intends to propose to cluster
Federal program changes that occur after June 1984. Under a
clustering scheme, the one year/two year clocks in 271.21(e)
would no longer begin on the promulgation date of every regula-
tion. Rather, there would be an annual clustering of all Federal
requirements promulgated or taking effect in the previous 12
months period*". The clock for making revisions would start
simultaneously for all requirements in the cluster.
If the clustering rule is promulgated as we intend to pro-
oose, revisions to au-.horized State programs to accomoda-.e §3006(f)
would be required by July 1, 1986 (if only regulatory changes are
needed), or by July 1, 1987 (if a State must amend its statute) •
The effect of this rule, if promulgaied, would be to require State
program revisions for the public availability of information
orovision to be accomplished in accordance with the schedule for
the firs:: cluster of non-HSWA requirements. However, unless and
until §271.21(e) is amended, the current deadlines remain in effect.
It. should also be noted thai, unlike other provisions of HSWA,
interim authorization under §3006(g) is not available for the
availability of information provision. Congress made §3006(f) an
independent requirement thai is subject to the standard in that
provision and not to a test of "equivalency". .Thus, any State
with final authorization or applying for final authorization must
demonstrate full compliance with §3006(f).
Demonstrating Compliance with §3006(f)
This provision requires that States provide for public avail-
ability of information regarding facilities and sites for the
treatment, storage and disposal of hazardous waste in accordance
with two standards:
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9 information must be made available to the public
"in substantially the same manner" as EPA makes
information available
0 Information must be made available to the public "to
the same degree" as EPA makes information available
EPA has interpreted the first standard to refer to the
procedures EPA employees in disclosing or withholding information
under the Freedom of Information Act (FOIA). P:PA has interpreted
the second standard to refer to the type and quantity of informa-
tion available under FOIA and EPA's FOIA regulations. The Agency
has also concluded that information regarding facilities and sites
would at least cover information relating to permitting, compli-
ance and enforcement, and include information gathered under RCRA
§3007(a) (or a State analog). See 50 FR 28730 and 28753, (July 15,
1985). Further, because much or all oT the information obtained
by States could have been obtained by EPA and would be subject to
the disclaimer provision of RCRA 3007(b), EPA has also relied upon
that provision in determining what requirements States must meet
to satisfy Section 3006(f).
EPA's procedural and substantive regulations implementing
FOIA and Section 3007(b) of RCRA and governing the treatment of
confidential business information are set forth in 40 CFR Part
2, Subparts A and B. (EPA will be amending some provisions of
Subparts A and B in the next few weeks. Although this guidance
has attempted to take these changes into account, States sho'uld
refer to the Federal Register to make sure that all the changes
are reflected in their procedures). We^have reviewed these regu-
lations to determine which specific provisions a State would need
to adopt to demonstrate compliancs with the standards in §3006(f).
The following discussion explains EPA's approach and summarizes
the provisions of EPA's regulations for which a State must adopt
analogous provisions in order to demonstrate compliance.
Where only the section number and title c--re listed without
a summary, each provision of that section is considered self-
explanatory. However, State offices and officials should be
substituted where EPA terminology is used. If summaries are
provided instead of reference to the full text, the State need
only adopt the requirements included in the summary. However,
the provision that has been summarized should be read in full
so that the context for the requirement is clear.
Various provisions in Subparts A and B are optional. EPA
excluded them from the list below because the provisions are
minor, pertain only to EPA, or do not directly affect the
availability of information to the public. We expect, though,
that States will need to adopt provisions similar to many of
the optional provisions to ease administration of Section
3006(f) and to provide more explicit guidelines to requestors
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and State personnel. Otherwise, the State regulations will be
incomplete and not likely to make sense.
As the list of provisions below makes clear, States will
need to adopt much of the substance of 40 CFR Part 2, Subparts
A and 3 in order to meet the standards of §3006{f). This
includes both the legal requirements and policy guidelines
governing the disclosure and withholding of information since
the policy guidelines in Subpart A govern the discretionary
release of information. Because Section 3006(f) establishes
specific, stringent tests for States to satisfy, we have been
able to provide only limited flexibility in this guidance. FOIA
regulations contain numerous requirements, some of which may
appear to be minor but which, in fact, directly affect the
availability of information. For example, the requirement in
40 CFR §2.109(a) that a requestor be notified if a request
cannot be processed for lack of adequate information is a
necessary provision. If the States were not required to adopt
a parallel provision, then, at least in theory, States would
not be obligated to tell a requestor that the time clock on his
or her request had been stopped. A request could languish and
the deadline pass before a requestor might realize that no
response was forthcoming.
Because §3006(£) sets the basic standard States must meet
and because guidance is quickly needed, we are not conducting
a §3006(f) rulemaking. State submissions will be closely evalu-
ated on a case-by-case basis. Failure to parallel EPA's regula-
tions in all respects described below does not necessarily
mean that a State will not receive authorization for §3006(f);
however, a State aust recognize that the more it deviates from
the list below, the greater the likelihood EPA will determine
that the State did not satisfy §3006(f).
Subpart A - Requests for Information
§2.100(b) Definition of "record".
§2.101 Policy on disclosure of EPA records.
§2.101(a) is included because, along with §2.119(a),
it states EPA policy regarding the discretionary release
of records. §2.101(b) and (c) are self-explanitory.
§2.103 Partial disclosure of records.
§2.104(a) Requests to which this subpart applies.
The State procedures for answering requests for information
must apply to all requests for information regardless of
wh^:her the requester cites the State's FOIA.
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§2.106(a) Where requests for agency records shall be filed.
The- State must indicate where requests for records are
to be sent.
§2.109(a) Requests which do not reasonably describe records
sought.
§2.110(a) Responsibilities of Freedom of Information Officers.
The State must establish procedures to enable it to
log in requests and set and keep track of deadlines
for responses. A "Freedom of Information Officer,"
per se, is not required.
§2.111 Action by office responsible for responding to request.
The State office must act as quickly as possible to
locate responsive records, determine any records which
must be withheld in the office's discretion, and issue an
initial determination to the requestor indicating which
records are being disclosed and which denied.
§2.112 Time allowed for issuance of initial determination.
The State office responsible for responding to the
reauest must issue an initial determination (see
§2.UK a) (7) ) no later than 10 working days after
the request is received by a designated official.
The responsible office may extend the 10 day period
by no more than 10 additional working days under the
specific circumstances described in §2.112(e).
§2.113(a), (d), (f) Initial denial of requests.
Denials should be limited only to the reasons specified
in Subsection (a). In responding to a request, the State
must indicate the basis for the denial. Information must
be provided on procedures to appeal a denial.
§2.114(a), (b) Appeals from initial denials; manner of making.
Provisions analogous to §2.114(a) and (b) are necessary.
It is particularly important that requestors be given at
least 30 calendar days to appeal an initial denial.
§2.115(a),(b) Appeal determinations; by whom made.
Determinations on appeals must be made by a
designated legal official. Where the attorney
determines that the State has the discretion to
disclose or release a record, a policy-making
official should decide whether it is in the public
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interest to disclose or withhold the records and
advise the legal official accordingly.
§2.116 Contents of determination denying appeal.
A determination denying an appeal shall state whether
an exemption applies to the record/ explain the reason
for denying the appeal, and identify the State official
who directed that the appeal be denied.
§2.117 Time allowed for issuance of appeal determinations.
The designated legal official must issue a written
determination stating which records shall be disclosed
and which denied, no later than 20 working days after
an appeal from an initial denial has been received.
The 20 day period begins the day the appeal is received
by the responsible office. The legal official may extend
the 20 day period by up to 10 working days only when
necessary and only for the reasons listed in §2.117(c)
and must send the applicant a written notice stating the
reason(s) for the extension and the date by which a
determination will be made. No extension may be issued
that would cause the total time on the FOIA request,
including any extensions under §2.112(e), to exceed 10
working days.
§2.118 Exemption categories
A State may not exempt other categories of information
from disclosure than those described in §2.118(a). It
may exempt fewer categories. The policy of §2.118(b)
must also be adopted.
§2.119(a) Discretionary release of exempt documents.
§2.120 Fees; payment; waiver.
This is an optional provision. States do not need to
charge fees. However, where they do, States must also
provide that a reduction or waiver of fees may be granted
in the public interest as specified in §2.120(d).
Subpart B - Confidentiality of Business Information
Although EPA considers the protection of confidential
business information a very important safeguard for the business
community, the focus of §3006(f) is on the public's right to
information, not the protection of confidential business infor-
mation (CBI), further, while Section 3007(b) generally requires
EPA to protect CBI, Section 3009 allows States to impose more
stringent requirements than those in Section 3007(b). Thus, for
both reasons, States are not required to protect CBI to satisfy
§3006(f). However, if a State does extend protection to
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confidential business information, it must be done in a manner
consistent with the public's right to information. A State cannot
restrict the release of information that EPA would require to be
disclosed. Thereforef if a State does protect confidential
business information, its program must include analogs to the
following sections:
§2.201(c)-(j),(o) Definitions.
Confidential business information cannot be defined any
more broadly than it is in 40 CFR Part 2, Subparts A and 9.
§2.202(d)-(g) Applicability of subpart.
§2.203 Notice to be included in State requests, etc.
If a business does not assert a business confidentiality
claim at the first opportunity provided by the State,
the State must be able to release the data without
further notice to the business. In addition, in the
case of any information submitted in connection with a
permit, permit application, or interim status under the
State's analogue to 40 CFR Part 270, any business
confidentiality claim must be asserted at the time of
submission. See 40 CFR §270.12.
§2.204 Initial action by State office.
(a) The responsible State office must take action under
. this section if it is required to respond to a FOIA
request for business information.
(c) If action is required under this paragraph to deter-
mine the existence of a business confidentiality claim,
the State office must determine which businesses, if any,
are affected businesses, and which businesses, if any, have
asserted confidentiality claims. If any business has
asserted a claim, action must be taken under paragraph
2.204(d). No inquiry need be made to any business which
failed to assert a claim when informed that failure to do so
could result in disclosure of the information to the puolic
or which has waived or withdrawn a claim covering the informa-
tion. If a FOIA request is pending at the time the inquiry
•is made to the business official, the inquiry should be made
by telephone or equally prompt means, and the business official
informed that any claim must be asserted by close of business
on the third working day after the inquiry. If the response
time passes and no claim has been made, the information will
be treated as nonconfidential.
(d) Preliminary determination. If a business makes a
claim and the office determines that the information may
be entitled to confidential treatment, the business must
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be provided the type of opportunity described in para-
graph (e). The office must inform the requestor that
the information may be entitled to confidential treatment;
that the State office is required to investigate 'further
before a final determination can be made; that the request
is initially denied; and after further investigation, a
final determination will be made. The matter must then
be referred to a designated legal official who decides
whether the information is or is not entitled to confiden-
tial treatment.
(e) If a business is provided an opportunity to comment
(as seated in paragraph 2.204(d)), a written notice must
be furnished by a means which allows verification of the
fact and date of receipt. The notice must state where
the comments must be sent, the time allowed for comments,
and the method for reques-ing a time extension (which may
only be granted as provided in §2.204(b)(2)). The notice
must state -hat failure to furnish timely comments will
be construed as a waiver of the business1 claim. The
oeriod for comments shall be no more than 15 working days
after the business received the written notice if a FOIA
request is pending. To assure that sufficient information
is available to the State and that no greater protection
is afforded to business records than EPA would give, the
State should make the type of inquiry -o the business
described in §2.204(e)(4). If the Sta-e office already .
possesses the relevant facts, responses need not be
solici-ed but only verified.
(f) Materials to be furnished to designated State legal
official. When a matter is referred to the designated
legal office for a final confidentiality de-erminatiion,
•••he State office taking action under this sec-ion mus-
forward all pertinent data listed in §2.204(f)(1-9) -o
the office making that determination.
§2.205(b), (d), (e), (f), (g) Final confidentiality determina-
tion by designated State legal official.
Wi*h regard to (e), after denial of a confidential business
information claim, the State shall make the records avail-
able to the public on the tenth working day after the
business1 receipt of the State notice (for information
obtained under RCRA) unless the State has been notified that
-he business has sought judicial review of the State
determination and preliminary injunctive relief.
If "he court does not grant preliminary relief or uphold
-he business1 argument, or if (after reasonable notice ro
-he business) the business does not expeditiously pursue
judicial relief, the State must be able to release the data
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to the public. Except in extraordinary circumstances -he
State cannot extend the 10 day period unless the requestor
consents.
§2.208 Substantive criteria for use in confidentiality determi-
nations .
If a State provides for protection of business information,
its criteria for making such determination should not
exceed the protection described here.
§2.215 Confidentiality agreements.
§2.305(a), (b), (e), (g) Special rules for RCRA.
The State should substitute its analog to RCRA provisions
where RCRA provisions are cited in §2.305. In addition
to adopting (a), (b), and (e), if a State allows
businesses to claim business confidentiality, the Stale's
regulations must allow disclosure of information relevant.
in a proceeding, as described in §2.205(g).
Addressees:
Regional Waste Management Division Directors, Regions I-X
Hazardous Waste Branch Chiefs, Regions I-X
Office of Counsel RCRA Branch Chiefs, Regions I-X
State Hazardous Waste Program Directors
Associate Enforcement Counsel for Waste
Associate General Counsel for Solid Waste and Emergency Response
OSWER Office Directors
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