United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
&EPA
DIRECTIVE NUMBER: 9540.00-9A
TITLE: State Authorization Manual (SAM) Volumes I and II
APPROVAL DATE: Ncvsnber 9, 1990
EFFECTIVE DATE: Novaiter 9, i990
ORIGINATING OFFICE: office of
FINAL
DRAFT
STATUS:
Vaste
A - Pending OMB Approval
D B • Pending AA-OSWER Approval
REFERENCE (Other Documents):
Updates SCPAM (9540.00-9)
OSWER OSWER OSWER OSWER
DIRECTIVE DIRECTIVE DIRECTIVE
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«rtn^ OSWER Directive initiation Reauest ^o.oo-*
2. Ofkrtnator Information
^§3^°^!^ Jones MWft2
<8&vER/OSW/PSPD/SPB TahphorwCodt ^_^^
3 Title
State Authorization Manual (Volumes I and II: Appendices)
4 Summary of Directive (include brief statement of purpose)
The State Authorization Manual (SAM) provides guidance for States on preparing
applications for revisions to their RCRA authorized programs. The SAM updates
and expands the State Consolidated Authorization Manual (SCRAM) published in 1988.
5 si-ate 'program, State Authorization, State/EPA Coordination
6a. Does This Directive Supersede Previous Directive(s)7 |x I
1 IN°
b Does 11 Supplement Previous Directive(s)' 1 1
No
7 Draft Level
A - Signed by AA/DAA 1* 1 B - Signed by Office Director
Yes Whit directive (number, title)
1 1 Yes Whit directive (number title)
9540.00-9 (SCRAM)
1C - For Review & Comment D - In Development
8. Document to be distributed to Statee by Headquarters?
Yn EZ! No
Tnla Request Meeta OSWER Directive* Syrtem Format Standard*.
9 Signature of Lead Office Directives Coordinator
10 "Name did Title of Approving!
Sylvia K. Lowrance, Director, Office of Solid Waste
Date
11/9/90
EPA Form 1315-17 (Rev. 5-17) Previous editions are obsolete
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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United States OSWER Directive
Environmental Protection Office of Solid Waste 9S40.0O-9A
Agency Washington. DC 20460 October 1990
&ER& State Authorization Manual
Volume I
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OSWER Directive H9540.00-9A
OFFCEOF
MOV 9 I9&C SOLO WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: State Authorization Manual (SAM)
FROM: Sylvia K. Lowrance, DirectoinysA^ f\. flO* ,
Office of Solid Waste ^^ 0
TO: Waste Management Division Directors
The attached State Authorization Manual (SAM) provides
guidance for States applying for program revisions to their
authorized RCRA State program. The SAM is an updated version of
the 1988 State Consolidated RCRA Authorization Manual (SCRAM). It
focuses on program revision applications rather than initial
applications since most States have received initial authorization
for the RCRA program. (The SCRAM should continue to be used to
assist States not yet authorized under the RCRA program.)
The SAM features a new step-by-step or cookbook format which
makes it easy to use. New instructions and examples on how to
complete the application components should ensure quality
applications. In keeping with my promise to you to make the State
authorization process easier, we are providing computer versions
of the checklists, the Attorney General's Statement, the Memorandum
of Agreement and the current Code of Federal Regulations. Further
efforts to computerize the application process are underway. One
such effort is to create a system that customizes the application
to include only those provisions being applied for by any state.
The SAM is divided into two volumes. The first volume
emphasizes the program revision process. However, it also provides
background on the RCRA State authorization program and
distinguishes between interim and final authorization processes.
The second volume consists of appendices that contain checklists;
it includes a new consolidated checklist for unauthorized states
and authorization models and recent or relevant policy statements.
The SAM is left unbound so that new materials can be easily added
to it.
Like the SCRAM, the SAM will be updated through the State
Program Advisories (SPAs) beginning with SPA 8. SPA 1 through 7
reflecting program changes from January 1, 1986 - July 30, 1989 are
at Htcjcltd Paptr
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already incorporated into SAM. The SPAs alert Regions and States
of Federal program changes which include new regulations, and self-
implementing statutory provisions every six months. The SAM will
also be updated to reflect any future changes that are made to the
authorization process as a result of the RCRA Implementation Study
recommendations.
I would like to take this opportunity to thank all the
Headquarters, Regional and State representatives that made valuable
contributions to the development and review of the SAM. I look
forward to a close working relationship between EPA and the States
in the nineties and beyond. I also anticipate that the process and
guidelines established in the SAM will lead to the successful
implementation of the RCRA program. If you have any questions on
the use of the manual please call Alex Wolfe, State Programs Branch
(FTS 382-2210 or (202) 382-2210).
Attachments
cc: Dev Barnes, OSW
Lisa Friedman, OGC
Mary Jean Osborne, OWPE
Authorization Section Chiefs, Regions I-X
Regional Counsels, Regions I-X
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Executive Summary
Executive Summary
INTRODUCTION
EPA is publishing this guidance manual to provide clearer direction to States on developing
applications for revisions to their authorized State programs. It also sets forth the internal procedures
that EPA will use to process these applications. The authorization procedures in this manual are
essentially the same as those published by EPA in 1988 in the State Consolidated RCRA Authorization
Manual (SCRAM) (OSWER Directive No.: 9540.00-9). However, it has been renamed, updated, and
reformatted for better understanding and easier use. Although this manual is primarily intended to
address revisions for States that have already been authorized, it also provides background on the
entire RCRA State authorization program. States that have yet to receive any authorization should
refer to the 1988 SCRAM for detailed guidance on application procedures for the basic Resource
Conservation and Recovery Act (RCRA) program.
This manual consists of two volumes. Volume I contains substantive guidance on preparing and
reviewing a revision application. Volume II consists of appendices that provide checklists, models,
and working tools to aid in the authorization process. Note that the guidance manual can be put in a
tooseieaf binder so that updated and new materials can be added as the program continues to
change.
The following is a brief description of the State Authorization Manual (SAM).
CHAPTER ONE: OVERVIEW OF THE AUTHORIZATION PROGRAM
Chapter One provides an overview of the RCRA State authorization program. RCRA. as
amended by the Hn*T$mn and Solid Waste Amendments of 1984 (HSWA), provides for authorization
of State hazardous waste programs under Subtitle C. It was Congress' intent that the entire Subtitle C
program would eventually be administered by the States in lieu of the Federal government. This s
because the States are closer to, and more familiar with, the regulated community and would be in a
better position to administer the programs and respond to local needs effectively. EPA's goal is to
approve as many qualified States for final authorization as possible and to maintain their authorization
through the revision process.
For a StaM program to receive final authorization, RCRA requires the State program to be
equivalent to, no lets stringent than, and consistent with the Federal program, as well as other State
programs. EPA further Interpreted these statutory requirements by promulgating regulatkxis at 40
CFR Part 271. The regulations provide detailed requirements that State programs must meet in order
to be authorized. The rules also set forth the form and content of the State's application for final
authorization.
CHAPTER TWO: PROGRAM REVISION TRIGGERS
State authorization for hazardous waste management program doss not end when a State
obtains final authorization; States must continue to maintain equivalency to the Federal program.
Therefore, modifications to the Federal program may necessitate subsequent rrxxflflcations to
authorized State programs. Also. States independently modifying their own programs must have
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Executive Summary
these modifications reviewed by EPA to ensure that the programs continue to meet Federal
authorization requirements. Chapter Two discusses the types of State-and Federally-initiated program
modifications. State program revision requirements, and the timeframe for submitting program
modifications and revision applications.
Prior to 1986. Federal regulations required States to revise their programs as each new RCRA
regulation was promulgated. After the enactment of HSWA, EPA established the 'cluster system*,
which applies to State modificati'—s that are necessary because of changes to the Federal progra-
This system allows States to group together, in one application, a number of Federally-required
modifications promulgated during a specified time period. In addition to Federally-initiated program
modifications, State-initiated program modifications must be submitted to EPA to determine whether a
revision application will be necessary.
CHAPTER THREE: THE PROGRAM REVISION APPLICATION
Chapter Three provides a discussion of the components of an application for State program
revisions, Including a detailed description of the requirements for each component It also discusses
the Capability Assessment which the EPA Regional Office prepares to accompany an application.
Examples and models of these components are contained in the appendices.
The nature and extent of documentation needed In a State's application for a program revision
will vary, depending on the type and extent of the modification and its impact on program
implementation. However, the following components wfll be required in virtually all program revision
applications: a letter from the State Director transmitting the revision; an Attorney General's
Statement; copies of State statutes, regulations, or other legal authorities upon which the State is
relying to show equivalence; and completed regulatory and/or statutory checklists. In some cases,
other authorization documents may also need to be revised, e.g., Program Description and
Memorandum of Agreement
CHAPTER FOUR: THE PROGRAM REVISION PROCESS
Review of authorization applications is conducted by EPA Headquarters and the Regional
Offices. The process entails a concurrent review, with the Regions serving as the primary contact with
the States. Chapter Four describes the steps in the revision process and explains the roles of
Headquarters and the Regions in the various stages of the review process. The process described in
the chapter is that which is currently in use. The review process for program revisions is currently
under discussion within EPA.
Communication is crucial In a program as complex as the RCRA Subtitle C program. EPA
Regional and Headquarters staff wffl emphasize informal day-to-day interactions with their State and
Regional counttrparts, respectively, and wffl be available for formal consultation whenever necessary.
Exchange of Idaaa, at wed as problems, is encouraged in order to improve the State authorization
process. EPA Headquarters, Regional, and State staff are encouraged to work as a team to resolve
authorization issues at they arise so that program revision authorization may be granted to each
qualified State in a timely manner.
The first step in the review process is pre-applicatkxi consultation. Early consultation with EPA is
encouraged when a State is planning to modify its program, especially tf those changes modify the
State's legal authorities. The purpose of this consultation is to provkJe the State wfth an early
indication of potential authorization problems, at a point in the process whan they may be more easily
corrected. For State-friMated nwdBteattons, the Region wffl also detenrtrw wrwther a program revision
application is required.
The next step is the draft appftcaHon review. Athough a draft appfcailon la not required. States
II
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Executive Summary
are encouraged to submit a draft, which facilitates resolution of problems prior to adoption of final
State regulations. Review of the draft application will involve both Regional and Headquarters offices.
Ail appropriate program, legal, and enforcement offices will participate in the review to ensure that
EPA concerns are identified at the draft stage.
Trie final step In the review process is the official application review and decisionmaking. After a
State receives EPA's comments on its draft application, It should begin to address those comments in
its official application. EPA Headquarters and the Region will independently review the official
application. After resolving any outstanding issues, the Region wiD make a tentative determination to
approve or disapprove the program revision. The Region will choose from one of two methods to
notify the public of its decision: standard rulemaking or immediate final rulemaking. Standard
rulemaldng allows EPA to review public comments on the revision and respond to them in a final rule
approving or disapproving the revision. The immediate final rulemaking option is designed to
streamline the revision approval process. In most cases, one Federal Register notice will be published
indicating that the State revision is approved or disapproved in 60 days unless EPA receives an
adverse comment within the 30 day comment period. However, If an adverse comment is received,
one or more subsequent notices will be needed.
Hi
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Table of Contents
Page
EXECUTIVE SUMMARY i
LIST OF EXHIBITS v
CHAPTER ONE: OVERVIEW OF THE AUTHORIZATION PROGRAM 1-1
Introduction 1-1
Final Authorization 1-2
Interim Authorization 1-6
Implementation in Authorized States 1-6
CHAPTER TWO: PROGRAM REVISION TRIGGERS 2-1
Introduction 2-1
State-Initiated Program Modifications 2-1
Federally-Initiated Program Changes 2-2
Program Revision Requirements 2-3
Timeframe for Submrttal of Program
Modifications and Revision Applications .... 2-5
Less Stringent Provisions 2-6
CHAPTER THREE: THE PROGRAM REVISION APPLICATION 3-1
Introduction 3-1
Application Components 3-1
Application Components for Unauthorized States 3-12
CHAPTER FOUR: THE PROGRAM REVISION PROCESS 4-1
Introduction 4-1
Codification 4-1
Pre-Application Consultation 4-2
Draft Application Review 4-2
Official Application Review and Decisionmaking 4-4
GLOSSARY 5-1
INDEX 6-1
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List of Exhibits
Page
Exhibit 1: Requirements for Final Authorization 1-3
Exhibit 2: The Cluster System 2-4
Exhibit 3: Review of Draft Revision Packages 4-3
Exhibit 4: Review of Official Program Revision Application 4-5
Exhibit 5: Decisionmaking Procedures: Program Revision Authorization:
Immediatiate Final Rulemaking 4-8
Exhibit 6: Decisionmaking Procedures: Program Revision Authorization:
Standard Rulemaking 4-10
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Chapter One • Overview of the Authorization Program
Chapter One
Overview of the Authorization Program
INTRODUCTION
The Resource Conservation and Recovery Act
of 1976 (RCRA), as amended by the Hazardous
and Solid Waste Amendments of 1984 (HSWA),
provides for authorization of State hazardous
waste programs under Subtitle C. In fact,
Congress designed RCRA so that the entire
Subtitle C program would eventually be
administered by the States in lieu of the Federal
Government. This is because the States are
closer to. and more familiar with, the regulated
community and therefore are in a better
position to administer the programs and
respond to local needs effectively.
This guidance manual has been developed to
provide direction to States in preparing
applications for revisions to State authorization
programs, as well as to set forth the internal
procedures that EPA will use to process these
applications. Although this manual is primarily
intended to address revisions to authorized
State programs, this chapter provides
background on the entire State authorization
process for hazardous waste programs and
outlines key attributes of interim and final
authorization. (For States that have not yet
received authorization, refer to the State
Consolidated RCRA Authorization Manual
(SCRAM) for guidance on developing
applications.)
RCRA, as enacted in 1976, gave the States two
options for assuming responsibility to
administer the Subtitle C program; i.e.. States
could apply for ether interim or final
authorization. Under interim authorization, a
State could implement a program that was
•substantially equivalent4 to the Federal program
(§3006(c)). For a State program to receive final
authorization, however, RCRA required the
program to be 'equivalent to, no less stringent
than, and consistent with* the Federal program,
as well as other State programs. The term "final
authorization* is applied both to base program
KEY TERMS USED IN THIS MANUAL
Certain terms are often used interchangeably or are
confused in the RCRA program. Several key terms are
defined here to avoid confusion later as you read and use
this manual.
RCRA - The Resource Conservation and Recovery Act ol
1976, and all amendments to that Act
Non-HSWA or Pre-HSWA Provtatora - Elements of the
Federal RCRA program that are implemented pursuant to
statutory authority that predates the 1984 HSWA
Afnononwitv.
HSWA Prevtafena - Elements of the Federal RCRA
program that am Implemented pursuant to HSWA. i.e.,
regulations promulgated) to implement the Hazardous and
4^A4
ivoe.
Final Authorization - Granted to State programs that are
equivalent to, no less stringent than, and consistent with
the Federal program, aa wall aa other State programs.
Final authorization allows for the Implementation of the
authorized State's regulations in lieu of the Federal RCRA
regulations in that State.
Authorization - The RCRA program
inWatty made available for final authorization, reflecting
Federal regulation* aa of July 28.1882.
HSWA Authorization - Authorization for those elements
of the Federal RCRA program that are implemented
pursuant to HSWA.
authorization as well as program revision
authorization. Final authorization connotes the
type of authorization received (i.e.. interim vs
final), rather than the status of a State's
authorization (i.e.. base vs. program revision
authorization). It is important to note that a
State may make its program more stringent or
broader in scope than the Federal program and
still be eligible for authorization (§3009), unless
in doing so the State's program becomes
inconsistent with the Federal program.
The remainder of this chapter provides a
detailed description of interim and final
1-1
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Chapter One • Overview of the Authorization Program
authorization, and introduces the revision
process.
FINAL AUTHORIZATION
RCRA establishes the basic standards that a
State hazardous waste program must meet in
order to qualify for final authorization. These
standards are equally applicable to States
seeking authorization for program revisions.
The program:
• Must be 'equivalent1 to the Federal
program;
• May not impose any requirements
•less'stringenr than the Federal
requirements;
• May. however, impose requirements
which are 'more stringenr than those
imposed by Federal regulations;
• Must be 'consistenr with the Federal
program and other State programs;
• Must follow specific procedures for
public 'notice and hearing* in the
permitting process;
• Must 'provide adequate enforcement;* and
• Must provide for the public availability
of information 'in substantially the
same manner, and to the same
degree* as the Federal program.
EPA further interpreted these statutory
requirements by promulgating regulations at 40
CFR Part 271. The regulations provide detailed
requirements that State programs must meet in
order to be authorized. The rules also set forth
the form, content, and timing tor submission of
the State's appfcatton for final authorization. In
reviewing State apptcations, EPA is required to
determine whether States satisfy these statutory
and regulatory standards.
Exhibit 1 summarizes the RCRA statutory
standards that State programs must meet for
final authorization, identifies the corresponding
EPA regulations, and indicates the appropriate
sections of the State's application where the
State should demonstrate that it satisfies each
RCRA requirement.
The following discussion and examples bnefly
illustrate how EPA will apply the final
authorization tests to State program revisions.
Equivalent Program
RCRA §3006(b) requires that authorized State
programs be 'equivalent* to the Federal
program. This does not mean that States must
have programs identical to the Federal
program. However, States must regulate at
least the same universe of handlers (i.e..
generators, transporters, and facilities) as EPA,
and each aspect of a State's regulation must be
as stringent as EPA's regulations. (See 'no less
stringent* discussion on page 1-4.)
While EPA recognizes that State programs may
be broader in scope than the Federal program
and still meet the test for final authorization, the
Agency will not approve any change in the
State's authorized program which decreases
the scope of the State program relative to the
Federal program. EPA approval is not required
for State program changes that are beyond the
scope of the Federally-approved program. Two
simple examples of the 'broader in scope*
principle are when a State lists additional
wastes as hazardous which are not in the
Federal universe of wastes or when the State
does not provide for the small quantity
generator exemption.
Generally, States demonstrate equivalence
through legal authorities m their statutes and
regulations. In two instances, however, the
Memorandum of Agreement (MOA) may be
used to demonstrate equivalence:
• To impose certain procedural
requirements on the authorized State
agency; or
• To impose limitations on the exercise of
waiver or variance authority by the
authorized State agency.
In both cases, the MOA is used in lieu of certain
specific State procedural requirements. This
approach cannot be used to impose restrictions
or standards on the regulated community. The
1-2
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Chapter One • Overview of trie Authorization Program
EXHIBIT 1
REQUIREMENTS FOR FINAL AUTHORIZATION
RCRA Standard
EPA Regulations
(40 CFR)
State Application
1. Equivalent Program
§3006(b)
2. No Less Stringent Program
§3009
3. Consistent Program
§300€(b)
4. More Stringent Program
§3009
5. Adequate Enforcement
§3006(b); §7004(b)(1)
6 Notice and Hearing in
the Permit Process
§§7004(b)(1) and (2)
7. Availability of Information
§3006(f)
271.9-.13
271.9-.14
271.4
271.15-.16
271.14
271.17
Program Description, AG State-
ment, and MOA
Program Description. AG State-
ment, and MOA
Program Description and AG
Statement
Program Description and AG
Statement
Program Description, AG State-
ment
Program Description. AG State-
ment, and MOA
Program Description, AG State-
ment, and MOA
1-3
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Chapter One • Overview of the Authorization Program
use of the MOA in this manner must be
accompanied by a certification by the Attorney
General in his or her statement accompanying
the application that nothing in the State's
statutes or regulations precludes its use. (See
page 3-10 for further discussion and examples
of the use of the MOA in lieu of procedural
regulations.)
No Less Stringent Program
RCRA §3009 prohibits States from imposing
requirements which are 'less stringent* than the
Federal requirements. EPA will not approve
any change in the State's authorized program
which makes the State's program less stringent
than the Federal program. In some cases. EPA
has promulgated new requirements that are
less stringent than the existing Federal
requirements. Examples of new Federal
requirements that are less stnngent than
previous Federal requirements are:
• Research, development, and
demonstration (RO&D) permits; and
• Treatability studies sample exemptions.
States may modify their programs to adopt
such less stringent requirements, but are not
required to do so. If a State chooses to modify
its program, the State may not adopt
requirements that are less stringent than the
corresponding Federal requirement
A State may. however, impose requirements
which provide more ngorous control of
hazardous waste activities than EPA's
regulations, as long as they are consistent with
Federal or State programs applicable in other
States (consistency is discussed in more detail
below).
Examples of more stringent State requirements
are:
• Limited financial assurance options for
facility closure (e.g.. a State may choose
to allow only one of the six options that
the Federal program allows);
• Submittal of an annual rather than a
biennial report for generators; and
• Expiration of permits after five years
instead of ten years.
Since EPA has the authority to enforce the
more stnngent provisions of RCRA-authonzed
program revisions, the Agency has a
corresponding responsibility to provide
oversight for those aspects of State programs
that are more stringent.
Consistent Program
40 CFR 271.4 states that, to obtain approval, a
State program must be consistent with the
Federal program and authorized State
programs applicable in other States. Section
271.4 defines an inconsistent State program as:
• Any aspect of the State program which
unreasonably restricts the transport of
hazardous wastes from or to other States
for treatment, storage, or disposal at
facilities authorized to operate under the
Federal or an approved State program;
• Any aspect of State law or of the State
program which has no basis in human
health or environmental protection and
which acts as a prohibition on the
treatment, storage, or disposal of
hazardous waste in the State; or
• A State manifest system that does not
meet Federal requirements.
Consistency decisions are made on a case-
by-case basis taking into account a vanety of
factors. States should discuss questionable
aspects of State law or regulations with EPA.
Adequate Enforcement
RCRA §3006(b) requires that authorized State
programs •provide adequate enforcement of
compliance with the requirements of RCRA
Subtitle C. Because Congress explicitly
emphasizes the adequacy of State enforcement
programs, EPA must pay special attention to
the review of State enforcement authority. EPA
will examine the inspection, enforcement
remedy, and penalty authorities of State
programs in light of the provisions of RCRA
§3007 and 40 CFR §§ 271.15 and 271.16.
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Chapter One - Overview ot the Authorization Program
EPA will disapprove a State's modification to its
enforcement program if the modification would
result in a State program that no longer meets
the requirements of §§271.15 and 271.16.
Examples include:
• Reductions in civil or criminal
penalties below the levels specified in
§27l.16(a)(3);
• Restrictions in the types of
enforcement authorities provided to
the State (e.g., if mental state is an
element of proof of civil violations);
and
• Restrictions on public participation in
the enforcement process that are in
conflict with §271.16(d).
EPA is reviewing the enforcement
requirements for authorization. Proposals
such as increasing the penalty levels.
delegating corrective action order authority
under RCRA §3008(h), and requiring
administrative penalty authority are under
consideration. Any such changes would be
proposed for public comment in the Federal
Register and promulgated as final rules
before they would take effect
Notice and Hearing in the Permit
Process
RCRA §7004(b)(2) stipulates that no State
permit program may be authorized unless it:
• Provides notice of its intent to issue a
permit though publication in "major local
newspapers of general circulation;*
• Broadcasts such notice over local radio
stations;
• Provides written notice to certain State and
local government agencies;
• Provides for at least a 45-day public
comment period; and
• Holds an informal public hearing if one s
requested during the comment period.
EPA cannot approve State modifications to the
permitting notice and hearing procedures if the
modifications would be in conflict with
§7004(b)(2). Modifications that would cause
particular concern include:
• Shortening the duration of the comment
period so that it is less than the 45-day
minimum period required by statute;
• Limiting public access to permit
information;
• Limiting distribution of notices (e.g..
removing the requirement for the
newspaper or radio notice for permits);
and
• Limiting the opportunity for a public
hearing (e.g., establishing a threshold of
public interest necessary before a hearing
should be held).
State Availability of Information
RCRA §3006(f). as amended by HSWA,
provides that no State program may be
authorized unless:
• The 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
• Such information is available to the
public in substantially the same
manner, and to the same degree, as
it would be under the Federal
program.
EPA has interpreted the criterion that
information be available 'in substantially the
same manner to refer to the procedures EPA
uses in disclosing or withholding information
under the Freedom of Information Act (FOIA).
The criterion that information be available to
the same degree* refers to the type and
quantity of information available under FOIA
and EPA's FOIA regulations (40 CFR Part 2,
Subpans A and B). The Agency also has
concluded that information regarding facilities
and sites would at least cover information
relating to permitting, compliance and
1-5
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Chapter One - Overview of the Authorization Program
enforcement, and information gathered under
RCRA §3007(a)(1) (or a State analogue).
Further, because much or all of the information
obtained by States could have been obtained
by EPA and would be subject to the disclaimer
provision of RCRA §3007(b) (4), EPA has also
relied on this provision in determining what
requirements States must meet to satisfy
§3006(0.
A State will need to demonstrate that its
requirements address much of the substance of
40 CFR Part 2, Subparts A and B, in order to
meet the standards of §3006(f).
In developing an analogue to §3006(f). EPA
expects States generally to enact laws or adopt
regulations. However, States may use the
Memorandum of Agreement (MOA) to satisfy
certain procedural requirements of §3006(0-
For a further discussion of the availability of
information requirements, please refer to
Appendix N.
INTERIM AUTHORIZATION
Congress provided for interim authorization as a
temporary mechanism to enable States to
continue to participate in the Federal hazardous
waste management program while they
developed stronger or more comprehensive
programs that were fully equivalent to the
Federal program, thereby qualifying for final
authorization.
Interim authorization for pre-HSWA provisions
expired January 31.1986. However, HSWA
provided a new interim authorization period for
HSWA regulations (§3006(9)). Interim
authorization for HSWA provisions expires
January 1,1993 (40 CFR 271.24). The first
State to receive HSWA interim authorization was
Idaho, for its corrective action program (55 FR
11015. March 26.1990).
Any State with HSWA interim authorization must
obtain final authorization by January 1,1993,
otherwise the intenm authorized HSWA program
will revert to EPA. In addition, EPA may initiate
withdrawal proceedings for the entire program if
the State fails to revise its program and obtain
authorization by the deadlines in 40 CFR
271.21. Program revision procedures apply to
applications for HSWA interim authorization and
subsequent applications for final authorization.
IMPLEMENTATION IN AUTHORIZED
STATES
As discussed earlier, authorized State programs
operate in lieu of the Federal program.
However, HSWA brought about a fundamental
change in the manner in which the Federal
hazardous waste program is implemented in
authorized States, particularly concerning
program revisions. Prior to the passage of
HSWA. new RCRA regulations promulgated by
EPA took effect only in unauthorized States.
The regulations became effective in authorized
States only after a State adopted equivalent
requirements. EPA could not enforce the
requirements until the State applied for and
received program approval from EPA. In
contrast. HSWA §3006(g) provides that Federal
HSWA requirements or prohibitions, with the
exception of §3006(0, are effective in all States,
including authorized States, and can be
enforced by EPA. Section 3006(0 is not
enforceable by EPA in authorized States
because it is a prerequisite to State
authorization, not a requirement or prohibition
of the ACL States must modify their programs
to pick up both RCRA and HSWA Federal
program changes by certain 'cluster deadlines.
which are discussed in Chapter Two.
1-6
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Chapter Two • Program Revision Triggers
Chapter Two
Program Revision Triggers
INTRODUCTION
As discussed in Chapter One, State
authorization for hazardous waste management
programs does not end when a State first
obtains final authorization. RCRA §3006(b)
requires authorized States to maintain
equivalency to the Federal program; that is,
authorized State programs must remain at least
as stringent as the Federal program. Therefore,
modifications to the Federal program, due to
statutory and regulatory changes, usually
necessitate subsequent modifications to
authorized State programs.
KEY TERMS
Modification - A State's actions to change its
statute, rules, and/or other program elements.
Also, the actual change itself.
Revision - The process of submitting an
application and obtaining EPA review and
approval of State program modifications.
Every change that makes the Federal RCRA
program more stringent or increases its scope
will trigger State program modifications. States
may, but are not required, however, to modify
their programs to correspond to Federal
changes that are toss stringent or that reduce
the scope of the existing Federal RCRA
program. What States may independently
modify their own programs. EPA must review
such modifications to ensure that they allow the
State's program to continue to meet Federal
authorization requirements.
In order to accommodate modifications made to
State programs, EPA promulgated rules
containing procedures for revisions (40 CFR
271.21).
This chapter will discuss the types of State-and
Federally-initiated program modifications, State
program revision requirements, and the
timeframe for submitting program modifications
and revision applications.
STATE-INITIATED PROGRAM
MODIFICATIONS
Three primary types of program modifications
can be initiated by the State: statutory,
regulatory, and administrative. In addition, legal
challenges can result in State modifications.
State Statutory Changes
A State legislature may enact new legislation
that affects a State's authority to implement its
authorized program. A State should submit
draft legislation to the EPA Regional Office as
early as possible for Agency review and
comment regarding the potential effects, if any.
on the authorized program.
State Regulatory Amendments
Pursuant to State statutory requirements, or on
its own initiative, the State agency may choose
to amend its regulations. Again, copies of such
proposed regulations should be submitted to
the EPA Regional Office as early as possible
(i.e.. at the draft stage) for review and comment.
State Administrative Changes
Plans for State agency reorganization, program
changes that would after the agreements
established in the MOA (e.g., a State may
decide it wants to start receiving notification
forms instead of having EPA receive them),
changes to forms or priorities, and other similar
administrative changes should be submitted to
EPA for review. It is important that the State
keep EPA informed of aO pending State
program administrative changes so that EPA
can determine if a revision win be necessary.
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Chapter Two • Program Revision Triggers
The transfer of all or pan of the State program
from the authorized State agency to any other
State agency must be approved by EPA as a
program revision. Until such approval, the new
State agency is not authorized to implement the
program (see §271.21 (c)). If a major shift of
responsibilities is made to an unapproved State
agency, EPA may withdraw the State's
authorization until the program revision is
approved. However, changes within the
internal structure of the approved State agency,
with no changes in the overall authority of the
agency, do not require EPA approval.
Legal Challenges
Legal challenges to State regulations or
legislation are not technically considered to be
State-initiated modifications for reporting
purposes under §271.21 (a). However, such
legal challenges may result in decisions that
render authorized State requirements invalid,
requiring the State to initiate modifications.
Consequently, it may be desirable for States to
notify EPA when legal challenges arise. States
must inform EPA when judicial decisions are
rendered so that the Agency can determine
whether a program revision application is
necessary.
FEDERALLY-INITIATED PROGRAM
CHANGES
There are three Federal activities that can
trigger State program modifications: Federal
statutory amendments, Federal regulatory
changes, and interpretation of Federal legal
authorities by EPA or the courts.
Federal Statutory Amendments
Amendments to Federal statutes may require
legislative and/or regulatory modifications to
State program*. Statutory amendments may
impose requirements directly. For example,
HSWA mandated that liquids could no longer
be disposed of in landfills. This self-
implementing prohibition was effective on the
date of enactment of HSWA. Statutory
amendments can also take the form of
directives to EPA to promulgate new
regulations. For example, HSWA directed EPA
to promulgate regulations establishing
treatment standards wastes must meet prior to
land disposal (the 'land disposal restrictions').
Both of these types of statutory changes will
trigger State program modifications. However,
as explained in the next section, different
deadlines for modifying State programs and
submitting applications will apply.
Federal Regulatory Changes
Most changes to 40 CFR Parts 124, 260
through 266, 268, 270, or 271 will trigger a
State program modification. Some Federal
regulatory changes may be made in response
to statutory amendments; others may be
changes to technical or administrative
requirements. In the preamble to EPA
regulatory actions published in the Federal
Register. EPA alerts States to the heed for
conforming State program modifications. In
addition, supplements to this manual (in the
form of State Program Advisories (SPAs)) will
continue to be issued to provide detailed
guidance concerning Federal changes.
Interpretation of Federal Legal
Authorities
On occasion, an interpretation of EPA's legal
authorities will require a State program
modification. In such a case neither the
Federal statute nor the regulations are
amended. Rather, a Federal Register notice is
issued explaining the legal interpretation.
Examples of this include the interpretation of
the statutory exclusion of source, special
nuclear and byproduct material in RCRA
§1004(27) (51 FR 24504, July 3, 1986), and the
interpretation of the applicability of the Federal
interim status requirements in 40 CFR 265.1 to
hazardous waste treatment, storage, or disposal
facilities (50 FR 28702, July 15,1985). If the
State Attorney General is able to interpret the
State's existing authorities in an equivalent
manner, the State does not need to amend its
legal authorities in order to receive
authorization. The State must, however, submit
an application with an appropriate Attorney
General certification and whatever additional
documentation may be required for the specific
program revision.
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Chapter Two • Program Revision Triggers
PROGRAM REVISION
REQUIREMENTS
When a Revision is Required
Federal program changes which are more
stringent or broader in scope than the existing
Federal program will always trigger the need for
State program revision applications and Agency
approval. However, a State will not always
need to modify its legal authorities in response
to a Federal program change.
For example, a State may have a requirement
which was more stnngent or broader in scope
than the Federal program when the State was
initially authorized, and which the State believes
to be equivalent to one of the new Federal
requirements. However, EPA needs to review
the State's requirement to ensure that it does
meet the tests for authorization. Further, RCRA
§3006(g) requires submission of an application
even where the State has an existing
requirement Therefore, while the State may
not need to amend its statute or regulations,
the State is not automatically authorized for the
new requirements and must submit a program
revision application to EPA. Specifically:
• The State's requirements must be
evaluated by EPA with respect to the new
Federal requirements;
• The State's Attorney General must certify
equivalence (for final authorization) or
substantial equivalence (for interim
authorization) with respect to the new
Federal requirement; and
• The public must be given the opportunity
to comment on the State's program with
respect to the new Federal requirement
For these reasons, such a State must obtain
authorization for that requirement, even though
no modification was necessary.
All State-initiated modifications must be
submitted to and reviewed by EPA to
determine:
• Their effect on the State's authorized
program; and
• Whether a revision application must be
submitted.
It is important that the State consult with EPA
as early as possible when the State is
considering any State-initiated program
modification, particularly a modification to
statutory and regulatory authority which will
affect the authorized program.
State Modification Deadlines
Prior to 1986, Federal regulations required
States to revise their programs as each new
RCRA regulation was promulgated. After
enactment of HSWA, however, EPA recognized
that there would be numerous additional
Federal program modifications and amended 40
CFR 271.21 in 1986 to establish the 'cluster
system.' The cluster system was intended to
improve the efficiency of program revision
submittals and to reduce the rulemaking burden
to States (§27l.21(e)(2)). Rules promulgated
between July 27, 1982, and June 30, 1984
(Checklists 1-8), predate this amendment and
are not covered by the cluster system. The
cluster system applies only to State
modifications that are necessary because of
changes to the Federal program after June 30,
1984, i.e., it does not apply to State-initiated
modifications. For further information on the
history of the cluster system, refer to
Appendix G.
Exhibit 2 outlines the cluster period. State
modification and revision application deadlines,
and program areas affected for each cluster.
Non-HSWA Clutter*. EPA created an annual
cluster system for Federal non-HSWA program
modifications occurring after June 1984. These
clusters encompass all Federal requirements
promulgated in a twelve-month period from
July 1 of one year to June 30 of the next year.
States must modify their programs by July 1 of
the year following the closing date of the cluster
for regulatory changes and by Jury 1 two years
later for any provisions requiring a statutory
change. For example, non-HSWA Cluster I
encompasses the period from July 1.1984, to
June 30,1985. The State modification deadline
is July 1.1986, for regulatory changes, or
July 1, 1987, if a State statutory change is
necessary.
2-3
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EXHIBIT 2
THE CLUSTER SYSTEM'
Non-HSWA
Ousters
H8WA
Ousters
BCRA
Ousters
Ouster
Number
1
U
III. ..VI
1
a
i
u
ui...
Ouster
**— -l«Mi
ranoo
July 1. 1984 to
June 30, 1985
July 1.1985 to
Jura 30. 1986
July 1.1986 10
Jura 30. 1967. etc.
November 8. 1984 lo
June 30. 1987
July 1.1987 to
Juno 30. 1990
July 1.1990 lo
June 30. 1991
July 1.1991 lo
June 30. 1992
July 1.1992 lo
June 30. 1993. etc.
Slate
Modlncatlon
Deadline"
July 1. 1986
July 1. 1967
July 1.1988. etc.
July 1. 1989
July 1. 1991
July 1. 1992
July 1. 1993
July 1.1994. etc.
State Revision
Application
Deadline
September 1.1986
September 1.1987
September 1,1968. etc.
September 1. 1989
September 1. 1991
September 1. 1992
September 1. 1993
September 1.1994. etc.
Program
Areas
Affected
Non-HSWA Rules
HSWA Section 3006(1)
Non-HSWA Rules
Non-HSWA Rules
HSWA Provisions
HSWA Provisions
All HSWA and
Non-HSWA Provisions
All HSWA and
Non-HSWA Provisions
All HSWA and
Non-HSWA Provisions
Checklists 1-8 were Issued prior to establishment ol the cluster system. State modification deadlines lor these rules aie 1 year Irom the promulgation date of each rule, or 2
years II a statutory change Is required.
1 additional year provided II statutory change Is needed. Can be extended by up to 18 months (see Section 271.2i(e) and (g».
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Chapter Two • Program Revision Triggers
HSWA Clusters. For HSWA provisions, multi-
year clusters were created. The first cluster
encompasses HSWA regulations promulgated
between November 8. 1984. and June 30. 1987.
This cluster period was chosen because EPA
expected the bulk of the HSWA changes to the
Federal program to occur prior to June 1987.
This cluster includes the majority of the facility
standards. States must have adopted these
regulations by July 1 ,• 1989. In order to ease
the States' administrative burdens in making
program modifications, another multi-year
cluster was created for HSWA provisions
promulgated between July 1, 1987, and
June 30. 1990. Since many of the HSWA land
disposal restrictions become effective during
this period, EPA thought that, from an
administrative standpoint, it made sense to
cluster these requirements together. States
must modify their programs for the second
HSWA cluster by July 1.1991. States may
have an additional year for any cluster provision
requiring a statutory modification.
RCRA Clusters. All Federal HSWA and norv
HSWA modifications occurring after June 30,
1990, will be combined in annual RCRA clusters
with the State modification deadlines occurring
one year (or two years for statutory
modification) after the closing date.
Extensions to State Modification Deadlines.
The Regional Administrator may extend the
State modification deadline for each cluster by
up to six months on a case-by-case basis. To
receive this extension, the State must
demonstrate that, although it has made a good
faith effort to meet the deadline, its legislative or
rulemaking procedures have caused it to miss
the deadline (see §271.21 (e)(3)). If the State is
unable to modify its program within the
extended six-month period, the Regional
Administrator may place the State on a
schedule of compliance (see §271.21 (g)). As a
prerequisite to being placed on a schedule of
compliance, the State must have:
• Made a good faith effort to meet the
deadlines in §271.21 (e);
• Been granted a six-month extension
pursuant to §271.21 (e) (3); and
• Made diligent efforts to modify its program
during the extension.
Schedules of compliance are limited to a
duration of one year from the extension
deadline and must be published in the Federal
Register. If a State fails to comply with the
schedule of compliance, the Regional
Administrator may take action (see §271.21
(9) (2)). (See Appendix M for an example of a
model FR notice for a schedule of compliance)
TIMEFRAME FOR SUBMITTAL OF
PROGRAM MODIFICATIONS AND
REVISION APPLICATIONS
States must inform EPA of all proposed
modifications to their authorized RCRA
programs. EPA will review State-initiated
modifications to determine whether a program
revision application is required. Within 30 days
of modifying its program, a State must submit
to the Region a copy of the program
modification and a schedule indicating when
the State intends to seek approval of the
modification. This requirement applies to
modifications the State undertakes in response
to Federal program changes as well as to
State-initiated modifications for which EPA
determines a revision application is required
For Federally-initiated modifications the State
must submit a draft of its revision application to
EPA no later than 60 days after the State
modification deadline in order to satisfy
§27l.21(e)(4)(ii). States are not required to
apply for all the cluster provisions at one time
A State may apply for any Federal requirement
at any time (either alone or in combination with
other requirements). However, the State must
have applied for all provisions in a cluster no
later than 60 days after the State modification
deadline for that cluster. For State-initiated
modifications for which EPA determines an
application is necessary, the deadlines in
§271.211 (e) (4) are not applicable. The Region
and State should determine an appropriate
schedule for submitting a program revision
application.
Usually, a RCRA final rule is promulgated
months in advance of its effective date.
Similarly, the content of a self-implementing
2-5
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Chapter Two • Program Revision Triggers
TlONS AND
Program Mo
Applies to a/7 program modifications
• Statea Inform EPA of propoMd modification*
NflfMdlMefy
Applies to State-initiated modifications
• EPA determines whether Stato-inttlated
modification require* • program rtvWon
application
Applies to cff program modifications requiring » revision
application
• Within 30 day* of modifying its program, a State
mutt attend to the Region-
A copy of tho program modification
A acheduto of wttan ttio Stata Intend* to
seek approval of modification
Appl** to Fede/afly-Wttafed modifications
Within 60 day* of program modification deadline.
State muet aubmH to the Region a draft revnion
application
AppOeatoStat+iniOm
application
ao
requtrtngemiaton
State eubrnfta draft reviaion appffcaBon vHfMn tfw
egroooVupon timeframe
HSWA provision is often known in advance of
its effective date. In such cases, a State may
modify its program and submit its revision
application to EPA prior to the effective date.
EPA will review the revision based on the final
rule or setf-irnptomenting statutory provision.
EPA may publish the approval of the State
program revision before the effective date of the
Federal requirement; however, the authorization
can only become effective on or after the
Federal requirement's effective date. For
example, if a waste listing is published in
January and becomes effective the following
Jury, EPA could review and approve the State's
corresponding waste listing during the January-
Jury period, but the State's authorization could
not become effective until the July effective date
for the waste listing.
States should be careful not to try to anticipate
the content of future Federal requirements.
Under no circumstances will EPA grant
authorization to a State based on proposed
Federal requirements. In addition to the
practical consideration that there may be
unanticipated changes to such provisions
before they are finalized, such proposed
regulations do not exist as Federal
requirements. Federal program changes are
defined in 40 CFR 271.21 (e) (2) as promulgated
amendments to 40 CFR Parts 124, 270, 260-
266, or 268 and any self-implementing statutory
provisions (i.e., those taking effect without prior
implementing regulations) which are listed as
State program requirements in this subpart.
LESS STRINGENT PROVISIONS
As explained earlier, States may, but are not
required, to modify their programs to adopt
analogues to less stringent Federal program
changes. All less stringent requirements are
identified in the revision checklists as optional.
Effect of Less Stringent HSWA
Requirements
There is one exception to the general principle
that HSWA requirements take effect in
authorized States at the same time they take
effect in nonauthorized States. This exception
is for less stringent HSWA provisions. RCRA
§3009 provides that a State may impose more
stringent requirements. Thus, any authorized
State or local requirement that is more stringent
than a HSWA requirement that is less stnngent
than the Federal program for which the State
was authorized remains authorized and in effect
under State or local law. An example of this
situation is RCRA §3004(p) (codified at 40 CFR
264.90(b)), which allows for variances from the
ground-water monitoring requirements, in
certain circumstances. EPA cannot implement
this requirement if the authorized State does
not allow for variances under similar
circumstances; i.e., if the State has more
stringent requirements. The universe of more
stringent provisions in the authorized State
program and the Federal HSWA program
2-6
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Chapter Two • Program Revision Triggers
defines the applicable requirements in an
authorized State (see 50 FR 28729 and 28730.
July 15, 1985).
State Adoption of Less Stringent
RCRA Requirements
When a State adopts an analogue to a less
stringent Federal requirement, it goes into effect
under State law. In some cases, adoption of
less stringent Federal requirements can affect
other provisions for which a State is applying
for authorization. For example, requirements for
research, development, and demonstration
(RD&O) permits are less stringent requirements
than the previous Federal program before
HSWA Cluster I. RD&O requirements are found
in 40 CFR Part 270 and affect closure, post-
closure, financial responsibility, tanks, and
Part B information requirements. If a State
adopted RD&O provisions and subsequently
sought authorization for closure, tank, or Part B
program revisions (without applying for
authorization of the RD&D provision), the
State's program could be found to be less
stringent than the corresponding Federal
program evaluated for authorization purposes.
(See Table G-1, in Appendix G. which identifies
all of the changes that are less stringent than
existing Federal code.)
There are two solutions to this problem, with
the first being preferable:
1. Apply for authorization for less stringent
Federal provisions as soon as possible.
This way less stnngent provisions will be
unauthorized for as short a time as
possible. In addition, the State will not be
precluded from receiving authorization for
other affected program revisions.
2. Do not seek authorization for any program
revision affected by a less stnngent rule,
unless simultaneously seeking
authorization for that less stringent rule.
This is not the preferred approach
because it may delay authorization for
some program revisions.
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Chapter Three • The Program Revision Application
Chapter Three
The Program Revision Application
INTRODUCTION
The revision process is applicable to States that
have previously obtained authorization and
must revise their programs to maintain
equivalency with the Federal standards (see
§271.21 (e)). This chapter provides a discussion
of the components of an application for State
program revisions, including a detailed
description of the requirements for each
component It also discusses the Capability
Assessment, which accompanies an
application. Examples and models of these
components are contained in Appendices B, E,
and L A brief discussion of authorization
application components for States that are not
authorized is presented at the end of this
chapter.
APPLICATION COMPONENTS
To evaluate a State's application for a program
revision, EPA must have information which
allows it to:
• Understand the substance of the program
modification; and
• Evaluate the impact the program
modification has on the State's ability to
continue to meet the statutory
requirements for authorization.
The nature and extent of documentation
needed from the State to provide this
information wfl vary, depending on the type
and extent of the modification and KB impact on
program ii nptomontatton. However, the
following components will be required in
virtually all program revision applications:
• A letter from the State Director transmitting
the revision;
• An Attorney General's Statement, including
completed regulatory and/or statutory
checklists (See Appendix J); and
• Copies of State statutes, regulations, or
other legal authorities upon which the
State is relying to show equivalence.
In some cases, other authorization documents
may also need to be revised (e.g., Program
Description. Memorandum of Agreement). The
State should work with the EPA Regional Office
to determine what specific documentation
should be included in the revision application
for a particular State program modification.
The following sections provide descriptions of
the major application components that may
need to be included in the revision application:
the Attorney General's Statement, as well as the
regulatory and statutory checklists; the Program
Description; and the Memorandum of
Agreement
Each section will explain the purpose of the
documentation, state when the component is
required, describe the elements of the
component, and describe how the component
will be reviewed. A brief description of the
State agency transmittal letter is also provided.
For those components for which models are
provided. EPA will make computer diskettes
available to States to enable them to tailor the
models quickly and efficiently to specific State
needs. (See Appendix O for instructions on the
use of model formats.)
Familiarity with how EPA will review each
component may be helpful to the State in
preparing its documentation. This review can
serve as a check for the State before it
submits ts documentation to EPA.
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Chapter Three • The Program Revision Application
State Agency Transmtttal Letter
The State's revision application should be
transmitted to EPA by a letter from the Director
of the State's hazardous waste program. The
letter should include a clear statement of the
nature of the State modifications contained in
the application. For example, the letter may
reference the checklists included in the
application. For HSWA requirements, the
Director should also indicate whether the State
is seeking interim or final authorization. In most
cases, the State Agency letter will be less than
one page long.
Attorney General's Statement (AG
Statement)
Purpose. The AG Statement is a central pan of
a State's revision application and has three
basic purposes:
• Identifies legal authorities;
• Interprets State law; and
• Certifies equivalency.
The AG Statement identifies the State's legal
authorities and how these authorities are
equivalent to the Federal standards. Because
EPA attorneys may not be familiar with the
State's law, it is important that the AG
Statement be as dear and detailed as possible,
both in identifying and interpreting State legal
authority, and explaining, in narrative form, how
the Attorney General believes the program
modification is equivalent to the Federal
requirement This is espetiafy important when
the State has adopted regulatory language or a
regulatory structure that looks skjrtficantJy
different from the Federal language or structure.
The Attorney General also should explain how
the new AG Statement relates to previous
Statements. The Statement should specify
whether it is an addendum or amendment to
previous statements.
When Required. The AG Statement is required
for any State- or Federally-initiated change that
modifies the legal authorities of a State's
authorized program. An AG Statement may not
be required for State-initiated changes that do
not modify the State's legal authorities, e.g.. a
reorganization of the authorized State agency, a
change to a form used by the State, or a
change in administrative procedures. However,
an AG Statement would be required when the
State's hazardous waste program is transferred
from one State agency to another. A State
should consult with the EPA Regional Office to
determine whether an application for a State-
initiated change will require an AG Statement.
Revision applications for Federally-initiated
changes will always require an AG Statement.
Elements. Requirements for the AG Statement
are specified in 40 CFR 271.7. Appendix E
provides a model format for the Revision AG
Statement The model AG Statement should be
used as a supplement to the AG Statement
submitted by the State when it initially sought
base program authorization. Appendix D
provides a consolidated model for States
seeking authorization for the first time. When a
State submits a program revision application,
the revised AG Statement should include only
those provisions for which the State is seeking
authorization. The AG Statement has five basic
elements:
• The Attorney General's Certification;
• Citations of State laws and regulations;
• Dates of enactment of State laws and
regulations;
• Analysis of authorities; and
• Checklists.
CertMcatton. The AG Statement must contain
a general statement certifying, in narrative form.
that State law provides adequate authority to
cany out the program revision. The Statement
must be signed by the State Attorney General
or an attorney authorized to independently
represent the State agency in court on all
matters pertaining to the State program.
Citation*. The Model provides the Federal
authority for each Federal program requirement.
For each Federal requirement for which the
State is seeking authorization, the Attorney
General must cite the specific statutory and
3-2
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Chapter Three - The Program Revision Application
regulatory authorities upon which the State is
relying to assert equivalence. It is critical that
the State have the Attorney General cite
specific statutory authority for the State
hazardous waste management regulations.
Citations to general enabling laws authorizing
the State agency to promulgate hazardous
waste management regulations may be
insufficient to demonstrate equivalence. The
State should also be careful not to rescind any
existing regulations until the State is actually
authorized for new regulations.
REPLACING A PROGRAM WITH
INCORPORATION BY REFERENCE
A State that has been developing its own
regulations may subsequently decide to
replace them by incorporating the Federal
regulations by reference. The State must
apply for authorization for its recodified State
program. States that incorporate all or a
portion of the Federal regulations by
reference may stifl add specific provisions that
are more stringent or broader in scope than
the Federal regulations.
Dare of Enactment. The date of enactment of
laws and regulations must be included in the
AG Statement in order to satisfy the
requirement under 40 CFR 271.7 that all
regulations be adopted at the time the
Statement is signed and fully effective by the
time authorization is granted.
Anttytli of Authorttie*. For each Federal
requirement for which the State is seeking
authorization, the Attorney General should
analyze, in narrative form, whether and how the
cited State authority is equivalent to the relevant
program requirements. The analysis should
reference and describe legislative history, State
case law, or rules of construction where
appropriate. (It may also be necessary to
provide analysis of the legal authority for
commitments made in the Memorandum of
Agreement - see discussion on MOA.) Any
differences, probtomo, or peculiarities in State
authority should be fully explained. Generally, a
narrative analysis of authorities is not required if
the State adopts the Federal regulation by
reference or verbatim, or if the legal authorities
cited are clearly equivalent.
Where a State has incorporated by reference
any Federal regulations, the Attorney General
must demonstrate, by citing the appropriate
legal authorities, that the State has the authority
to adopt State regulations in this manner. If the
State's incorporation by reference is intended to
include any EPA revisions that may occur in the
future (this is known as prospective
incorporation by reference), the Attorney
General must cite State authority that enables it
both to promulgate and enforce regulations in
this manner.
AUTHORITY FOR
INCORPORATION BY REFERENCE
State Attorneys General should note that a
number of State Supreme Court cases hold
that State statutes which adopt prospective
Federal legislation or regulations constitute an
unconstitutional delegation of legislative
authority. See, eg,, State of North Dakota v.
Jutson. 202 N.W.2d 145 (1072); Dawson v.
Hamilton. 314 S.W.2d 532 (1958); Chenev v.
St Louis Southwestern Railway Co.. 239 Ark.
870. 394 S.W.2d 731 (1965); State of West
Virginia v. Ginstead. 157 W. Va 1001, 206
S.E.2d 912 (1974); Schrwer v. Schirmer. 84
S.D. 352, 171 N.W.2d 634 (1969); State v.
Johnson. 84 S.D. 536. 173 N.W. 2d 894
(1970).
CnecJtfJtts. The Model Revision AG Statement
contains references to the revision checklists.
The checklists are intended to assist the
Attorney General in citing specific State
analogues to the Federal requirements. The
checklists include a column to indicate whether
the State requirement is equivalent to, more
stringent, or broader in scope than the
analogous Federal requirement The Attorney
General, in developing the Statement, may
choose to reference the checklists as pan of
the Statement or merely to use them as a
guide. If the checklists are not referenced, the
analogous State authorities must be cited in the
body of the AQ Statement
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Chapter Three • The Program Revision Application
The Revision Checklists are presented and
numbered in chronological order by date of
promulgation and are grouped by Cluster (see
the table provided in Appendix G). As new
regulations are promulgated and new Clusters
established, checklists will be developed and
distributed to States through the SPA system,
typically on a semiannual basis.
To the extent that the State incorporates by
reference entire Parts or Subparts of the
Federal regulations (e.g., 40 CFR Part 264,
Subpart A), there is no need to identify each
provision of the incorporated Part or Subpart on
the Checklist. Rather, it is sufficient to enter a
single citation that references the entire Part or
Subpart. Where only certain sections of a Part
or Subpart are incorporated, citations to the
specific Parts or Subparts must be noted. A
simplified form for adoption by reference is
provided in Appendix I.
A Checklist Linkage Table is provided in
Appendix H to show which revision checklists
affect similar sections of the Federal code. For
example, Revision Checklists 32, 39, SO. 62,
and 63 are considered 'linked1 as they all
address the land disposal restrictions.
Similarly. Revision Checklists 17A. 23. 42, and
47 all affect small quantity generators. Knowing
these linkages can help States more effectively
update their regulations. For example, if a
State were updating its code to reflect Revision
Checklist 23, which made major changes to
small quantity generator requirements, it might
also want to include changes contained in
Revision Checklists 42 and 47 as well. States
should be aware of these linkages because, in
some cases, changes in later checklists
supersede earlier changes.
Appendix K contains consolidated checklists for
all RCRA regulations through June 30,1989.
Consolidated checkisis were developed to help
States meet the requirement of RCRA *3006(b)
and 40 CFR 271.3(1) that a State applying for
final authorization for the first time must address
all provisions of the Federal Code thai were in
effect one year prior to application submission.
The consolidated checklists wffl be updated
through the SPA system to address changes to
the RCRA program for each annual period from
July 1 through June 30.
Review. A detailed reviewer's checklist for the
AG Statement is provided in Appendix F. The
following discussion, however, provides a
description of how EPA reviews each AG
Statement
AG STATEMENT REVIEW PROCEDURE
(1) Check for Completeness
(2J Review the Narrative
(3) Prepare Comments
Checking for Completeneu. After receiving
an AG Statement the EPA reviewer first reviews
the Statement to determine its completeness.
The reviewer checks to see if all provisions for
which the State is seeking authorization are
included in the Statement and looks for errors
such as missing citations or citations in the
Statement that do not match the checklist
Finally, the Statement is checked to ensure that
it is signed by the proper authority.
ftevfewfng the Narrative. After the
completeness check, EPA reviews the narrative
Statement. The explanations of differences
between State and Federal requirements are
the main focus during this stage of the review.
The clearer and more complete the State's
explanation of differences, the easier and faster
the review. The reviewer reads the State's
statutes and regulations to ensure that there is
no conflict between the two, the interpretation
of the State's authority is dear, and that they
are equivalent to Federal requirements. The
reviewer also checks the dates of enactment of
the State statutes and regulations, citations to
authority for incorporation of Federal regulations
by reference. State claims of jurisdiction over
Indian lands, and use of the MOA for
procedural requirements or variances and
waivers, when applicable.
Preparing Comments. The EPA reviewer's
comments on a draft application must be
flpooflc enough for the State to have a clear
understanding of what is expected of the State
when developing its official application.
Comments must state the problem or question
clearly, with citations to the State and Federal
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Chapter Three - The Program Revision Application
authorities at issue. In commenting, EPA may
request the AG to:
• Clarify procedural or completeness
questions (e.g., citations, dates.
signatures, etc.);
• Explain or clarify the meaning of State
laws or regulations;
• Provide more specific or better
explanations of authority; or
• Amend State laws or regulations if a
satisfactory explanation cannot be
provided.
COMMON AG STATEMENT DEFICIENCIES
General format deficiencies:
Omitted or unauthorized
signature
Omission of Federal and State
statutory and regulatory
authorities
Conflicting citations in checkfists
and Statement
Failure to state relationship to
prior AG Statements
Substantive deficiencies?
- Less stringent regulations
Regulations not in effect
Insufficient explanation of
apparent differences in Federal
and State regulations
Inadequate authority in statute to
promulgate specific regulations
For the most pan. EPA will defer to the State on
interpretation of State tew. Because each
State's laws are unique, EPA believes that the
State Attorney General is the appropriate
person to interpret them property. However,
EPA does not defer to States on interpretation
of Federal taw, including determining
equivalency. The Agency interprets its rules in
the preambles, and through the issuance of
specific policy and guidar
Program Description
Purpose. The Program Description (PD) is an
important element of a State's revision
application since it describes how the State
intends to implement the provisions for which it
is seeking authorization. The PD provides the
State with the opportunity to:
• Describe how a specific requirement will
be implemented and its impact on the
State's authorized program;
• Discuss differences, if any, between the
State and Federal programs; and
• Describe the division of responsibilities for
program implementation among the State
agencies.
When Required. In general, a State will need
to revise its PD if there is:
• A large increase in the regulated
community;
• A need for significant additional resources
or different expertise;
• A significant modification to the State's
tracking system;
• A change in interaction or formal grant
agreements with other State agencies; or
• A reordering of authorized program
priorities, such as conducting more land
disposal restriction (LDR) inspections at
the expense of ground-water monitonng
inspections.
States should work with the EPA Regional
Office to determine whether a PD revision is
required for a specific State modification. EPA
has, however, identified six specific revisions for
which a State must include a PO in its revision
application: (1) corrective action; (2) land
disposal restrictions; (3) small quantity
generators; (4) radioactive mixed waste; (5)
waste as fuel; and (6) used oil
Element* The State has the option of
modifying its existing Program Descnptton on
file with EPA in one of three ways:
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Chapter Three • The Program Revision Application
(1) Addendum to Initial Application - An
addendum should identify the appropriate
sections of the existing PD to be deleted.
modified, and/or expanded. In some
cases, a State program revision may be
simple enough to be addressed in the
State's revision application transmrttal
letter. An addendum of this type should
be clearly identified as such, in order to
facilitate codification in 40 CFR Part 272.
(2) Updated Page Inserts - Page inserts may
be used to update specific portions of the
original Program Description. All new
pages should be clearly marked with a
revision date and page numbers should
correspond to the original text with alpha
designations used where necessary (e.g.,
11, 11-a 11-b, etc.). The changed
portions should be clearly marked. A
copy of an original page with partially
lined-out text can be used, if appropriate.
(3) New Program Description - In those cases
where program revisions require extensive
changes to numerous elements of the PD,
the State may wish to revise its existing
PD and submit the new PD as a
replacement for the current PD on file.
The elements to be included in the PD are
specified in §271.6 and are briefly described
below in the context of program revisions.
Program Scope, Structure, and Coverage
(S271.6(a)). In this section of the PD, the State
must describe the scope of the program
revisions being applied for. The State must
clearly explain whether the revision application
addresses a complete duster or only certain
provisions of a duster. The PD must show, in
narrative terms, how the State provides the
coverage corresponding to the amended
regulatory provisions of the RCRA program.
Differences in coverage botwoon the State and
Federal programs should be discussed.
State Agency Retpomlbllltle* (§271.6(b)).
The State agency responsible for administering
program revisions must be identified in the PD.
If the authorized State agency is responsible for
administering the revisions, no further
explanation is required. If a different agency is
responsible, the PD must describe its
relationship with the authorized State agency.
This section of the PD may also describe the
division of responsibility between the State and
EPA. This is especially important for the
regulated community which will be dependent
on the application for a clear statement of State
or Federal lead on permitting and enforcement
activities for each HSWA requirement. A listing
or matrix of the HSWA and non-HSWA activities
may be maintained as part of the PD to provide
a concise, definitive statement of which
program areas the State has (or is seeking)
authorization for, as well as the program areas
for which EPA remains responsible. As
subsequent authorizations occur, the matrix will
become more and more complete until the
State obtains authorization for all of the RCRA
authority available.
Staffing and Funding Resource* (§271.6(b)).
This section of the PD must address the State
agency's resources to carry out the activities
that are the subject of the program revision.
This section must distinguish between new
resources and existing resources being
assigned to the new responsibilities and explain
the impact on the existing authorized program.
The State should discuss changes that have
occurred since the State first received
authorization, such as a reduction in the size of
the regulated community or program changes
that affect the agency's efficiency, where
impacts on existing program resources are
significant. The PD must contain information
regarding personnel and funding (i.e., estimated
program and technical support costs, as well as
the source and amounts of funding available)
for each agency involved. To provide a
comprehensive picture of the resources
available to conduct the activities proposed in
the State's application, the State should provide
information projected for at least two years
following the approval of the State's revision.
(§271.sYe)). As appropriate,
this section should describe any State
procedures (La, permitting, certification.
notification, compliance monitoring,
enforcement, etc.) which w» be used to
implement the program revision. Whore there
are no changes from the procedures described
in prior applications, no further explanation is
required.
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Chapter Three • The Program Revision Application
Compliance Tracking and Enforcement
(§271.6{e)). The State's PO must demonstrate
how the State's compliance monitoring and
enforcement program will operate to ensure
compliance with standards and permits by all
hazardous waste management facilities,
generators, and transporters. If the revision
affects the compliance monitoring and
enforcement program for which the State is
already authorized, then such impacts need to
be discussed. The following sections provide
more detail on enforcement information that
should be included in a revised Program
Description.
1. Newly Regulated Handlers - Many of the
new HSWA provisions have the potential to
significantly increase the size of the RCRA
universe, particularly the new requirements
regarding:
• Small quantity generators;
• Oioxin listing;
• Producers, marketers, blenders and
burners of hazardous waste and used oil
fuels; and
• Newly listed or characteristic wastes.
COMPLIANCE MONITORING AND
ENFORCEMENT Issues
Newly regulated handlers
Inspection and analysis workload
Data management
Compfianoa monitoring resources
Enforcement process
The State's strategy and methods for identifying
new members of the regulated community
(generators; transporters; and treatment,
storage, and disposal facilities (TSOFs)) should
be discussed. The State needs to describe
how it wiD implement any notification activities
and identify and follow up on non-notffiers jf
these procedures differ or amend those
described in the State's most recent
authorization application.
2. Inspection and Analysis Workload - The new
HSWA provisions will also significantly increase
the inspection workload. Hazardous waste fuel
handlers will need to be inspected to ensure
proper management of hazardous waste fuels
and to confirm the material's shipment to
authorized burners. Additional generator
inspections will be necessary to ensure that
generators of restricted wastes are complying
with the land disposal restrictions (LDRs) and
related recordkeeping requirements. Increased
inspections may also be necessary to oversee
corrective action activities conducted by
owner/operators of RCRA TSDFs to confirm
facility compliance with schedules of
compliance in permits and in orders.
In addition to the increased inspection
workload, the inspections themselves may
require more sampling and analysis than those
conducted under the existing authorized
program. For example, some LOR inspections
may require that inspectors sample wastes to
determine whether facilities are meeting
required treatment levels for restricted wastes.
Inspections to monitor compliance with
hazardous waste fuel regulations may require
sampling of used oil to determine whether it is
on- or off-specification. Many corrective action
inspections will also require waste analysis and
will require inspectors to take ground-water.
soil, surface water, sediment and other samples
to determine whether there are releases at
RCRA facilities. Consequently, the Program
Descnption should include:
• A general description of how the State
plans to handle any increased inspection
and analytical workload associated with a
HSWA provision:
• A discussion of how these new activities
will be combined with existing generator
and TSOF inspection efforts; and
• A description of State inspection priorities
after integration with existing program
priorities. (Note that the Agency
Operating Guidance addresses inspection
priorities to be negotiated annually
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Chapter Three • The Program Revision Application
between the State and EPA as part of the
annual grant process.)
3. Oara Management - Many of the new HSWA
requirements may require expanded information
management activities. The increased number
of generators in the system and the nature of
some new requirements may necessitate
tracking systems to support program
management and analysis. The PD should
describe any modifications to the manifest
tracking system or other data management
activities.
4. Compliance Monitoring Resources -
Additional resources may be needed to monitor
compliance with the new program activities
while continuing to monitor compliance with the
existing program. In particular, inspection
sampling may require increased technical
expertise and additional laboratory support may
be needed to perform newly required analyses.
Laboratory support for new program areas such
as hazardous waste fuels, land disposal
restrictions, and corrective action programs will
be critical. The PD should address the level
and mix of resources that the State has
available to handle new responsibilities,
including as appropriate:
• Plans for training staff;
• Plans for hiring additional staff (describe
skill area of personnel being sought);
• Agreements with other State agencies
(include copies of interagency
agreements); and
• State plans to use contractor assistance.
5. Enforcement Process - HSWA introduced a
number of provisions that are likely to require
the use of enforcement processes or authorities
that differ from those used in the existing
authorized program. For example, the new
corrective action authorities are broad and
essentially allow EPA and the States to require
corrective action for most types of releases at a
RCRA facility. The States will need to discuss
how they will ensure the enforcement of
corrective action conditions in operating permits
and post-closure permits. Several HSWA
requirements are likely to result in increased
criminal activity among waste handlers,
including the land disposal restrictions and the
used oil recycling and waste-as-fuel
requirements. The discussion of criminal
enforcement procedures in earlier PDs may
need to be supplemented to address fully the
impacts of these new requirements.
In light of HSWA impacts, a State's PD should
address the following policies and processes
where they differ from or amend those
described in the State's most recent
authorization application:
• The State's enforcement response policy
(i.e., violation classification, response
timeframe, informal and formal
enforcement process);
• The State's civil enforcement process, use
of administrative and/or judicial actions,
and processes that may result in
penalties; and
• The State's criminal enforcement process.
Estimated Regulated AetMUes ($$271.6(g)
snd(h)). The State must provide the best
numerical estimates, based on existing data, of
hazardous waste activities in the identified
categories covered by the application (e.g..
estimates of annual quantities of newly
identified wastes generated within the State). A
table is generally sufficient to convey this
information, along with a brief narrative
explanation of the estimates.
Copies of State Forms and Coordination with
Other Agencies (§§271.9(d) and (f)). For most
program revisions. States will not need to
provide copies of State forms or additional
discussion of how the State coordinates its
activities with other State and Federal agencies.
This required information is contained in the
State's first application for final authorization.
However, if the State's forms or coordination
activities have been significantly modified, or if
the State's program revision involves the use of
new State forms or affects intergovernmental
coordination, then the State's revised PD
should contain appropriate discussion and
copiofl of forms. For example, the revision
application for mixed waste should include a
discussion of coordination activities with the
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Chapter Three - The Program Revision Application
U.S. Department of Energy or the Nuclear
Regulatory Commission (or the NRC Agreement
State agency). (For a further discussion on
mixed waste authorization, please refer to
Appendix N.)
COMMON PD DEFICIENCIES
Unclear statement of what revision is
being applied for
Failure to update a previously
submitted PD to explain the effect of
the revision on the existing program
(e.g., resources)
Insufficient explanation of how the
program revisions will be administered
and enforced
Review. A detailed reviewer's checklist for the
Program Description is provided in Appendix A.
It can also be used by the State to assist in
development of the PD. Since there is no
model PD and, therefore, no specific format
requirements, the checklist provides a means
by which the State and the EPA review team
can ensure that the basic components are
included. The checklist consists of three parts,
and is designed to ensure that the PD
adequately describes the organization and
management of the State program, discusses
the differences between the State and Federal
programs, describes how the State will
administer and enforce its program, and
demonstrates that the State program meets the
tests for final authorization.
Memorandum of Agreement
Purpose. The Memorandum of Agreement
(MOA) is the vehicle for specifying areas of
coordination and cooperation and defining the
respective roles and responsibilities of EPA and
the authorized State; consequently, MOAs are
State-specific - no two are exactly alike. This
agreement is signed by the Director of the State
hazardous waste program and the EPA
Regional Administrator.
In developing the MOA, the State and Region
must be careful to adhere to certain principles
stated in §271 .8:
• The MOA may not restrict EPA's statutory
oversight responsibility;
• The MOA may not limit the number of
oversight compliance inspections EPA
may conduct; and
• The MOA must allow EPA to review
routinely the State's records, reports, and
files.
When Required. The MOA is a dynamic
instrument that should be reviewed at least
annually and revised, as necessary, to
accommodate any changes in the maturing
State-EPA relationship. The MOA should also
be revised, as necessary, to reflect changes
that occur due to State- and Federally-initiated
revisions to the authorized program.
Elements. A model MOA is provided in
Appendix B to be used as a guide to meeting
the requirements of 40 CFR 271 .8. The model
is a complete MOA and supersedes the model
provided in Chapter Two of the SCRAM. It can
be used to completely replace an existing MOA
Several areas where the Region and State may
need or want to expand the basic framework of
the model are noted in brackets. Many MOAs
contain State-specific provisions that have been
negotiated over several years. In such cases.
the State and Region may prefer to amend the
existing agreement instead of replacing it.
At a minimum, a complete MOA should contain
the following:
• Procedures for sharing and transferring
permitting responsibility;
• Framework for EPA overview of program
administration and enforcement;
Agreements for providing technical
expertise or
Provisions for exchange of information
(including any program changes in
accordance with {271. 21 (c));
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Chapter Three • The Program Revision Application
• Reference to other State-EPA agreements
relevant to implementing the hazardous
waste program (e.g.. enforcement or joint
permitting agreements); and
• Signatures of the State Director and
Regional Administrator.
Where the Directors of two or more State
agencies share substantive responsibility and
resources for the functions described in the
MOA, each Director must sign the MOA. The
MOA must clearly indicate the specific
responsibilities assumed by each of the State
Directors and must describe how they will share
and coordinate implementation of those areas
which involve more than one State agency.
This may be done in a separate section of the
MOA or by designating specific State agency
responsibilities throughout the text of the MOA.
Note that where the divergence of responsibility
involves solely enforcement authority,
agreement among the State agencies would be
allowed as an alternative to having each
enforcement arm sign the MOA. For example,
the State AG will generally not be a party to the
MOA, even though he or she may be
responsible for certain enforcement functions.
Agreements with enforcement agencies of local
units of government are not required.
Under certain circumsta
an MOA
commitment may be used In place of
promulgating State regulations. This is
allowable only for State procedural
requirements and cannot be used for
restrictions or standards imposed on the
regulated community. If a State lacks the
adequate regulatory provisions, the State may
be able to agree in its MOA to cany out the
procedure in accordance with the requirements
for final authorization. In order for this
approach to be acceptable, the State Attorney
General must review the terms and conditions
of the MOA and certify that (1) the State has
the authority to enter into the agreement. (2)
the State has the authority to carry out the
agreement, and (3) no applicable State statute
(including the State Administrative Procedure
Act) requires that the procedure be
promulgated as a rule in order to be binding.
The MOA must then contain an unequivocal
State commitment to apply the procedures, and
to notify the public of these procedures. For
example, if the State included a provision for
permitting in its MOA that was not specified in
its regulations, notice of each draft permit must
inform the public that the procedures to be
followed in processing the permit are derived
from the MOA as well as directly from State
laws and regulations. The State must agree in
the MOA to include this information in each
notice.
The degree to which this approach may be
legally acceptable will vary by State, depending
on the State's legal authorities in the areas of
hazardous waste regulation and administrative
procedures. The State may not use the MOA to
adopt procedures which directly conflict with
State laws or regulations. For example, a State
could not agree to provide for a 45-day public
comment period if the State's regulations set a
maximum 30-day comment period. A State
could, however, agree to a 45-day comment
period if its regulations specify a period of at
least 30 days.
COMMON MOA DEFICIENCIES
Omissions:
Joint permitting references
§3006(f) agreements
Major signatories
inconsistencies w&Nn the MOA (e.g.,
different frequency of reports for the
same item)
Limitations on EPA's oversight authority
Outdated language (e.g^ not using the
latest MOA model or not incorporating
HSWA requirements)
Inappropriate use as a substitute for
regulatory requirements
State statutory and regulatory waivers may also
need to be discussed in the MOA. If the State's
variance or waiver authority Is broader
than that of the Federal program (i.e., it allows
greater deviation from the State's regulations
than the Federal program atows from Federal
regulations), it may still be acceptable under
some circumstances. If the State's provision is
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Chapter Three • The Program Revision Application
such that it can be invoked only at the
discretion of the State agency, the State could
agree in its MOA not to use the waiver or
variance so that it would result in the
imposition of any requirement less stringent
than comparable Federal program
requirements. In addition to the MOA
commitment, the Attorney General must certify
that State law allows the State agency to agree
to limit its use of the waiver provision in this
fashion. The State must also agree in the MOA
to inform EPA of the issuance of any variance
or wavier. If, however, the State's variance or
waiver authority is not discretionary, that is, the
State's statute or regulation would require the
granting of variances in certain situations that
would render the State program less stringent,
this option would not be available.
Review. A detailed reviewer's checklist for the
Memorandum of Agreement is provided in
Appendix C. The checklist is designed to
ensure that the regulatory requirements of
§271.8 are covered in the MOA and follow the
model outline.
The Capability Assessment
Note that the capability assessment review
process is currently under EPA review. If EPA
initiates process changes, this section of the
manual wiB be revisedL
Purpose. The capability assessment is a
document prepared by the Regional Office,
which will accompany many authorization
applications. The capability assessment is
intended to ensure that State programs are
capable and functioning effectively. Capability
assessments provide EPA with a continuing
mechanism through the authorization process
to assess how effectively a State is
implementing the program for which ft is
already authorized. The capability assessment
also identifies areas of State programs that
warrant enhancement and establishes the EPA
and State actions necessary to stiengthen the
programs, as weU as describes how the State
may implement additional program areas. In
general, States should demonstrate the ability
to capably implement their existing authorized
programs as weU as the additional elements for
which they are seeking authorization.
When Required. A capability assessment must
be prepared for any application that includes
elements that significantly affect the State's
workload. This includes applications covering
all or most of HSWA Cluster I or HSWA Cluster
II, and any application for corrective action (a
HSWA Cluster I component). There is not a
comprehensive list of provisions which require a
capability assessment. Many provisions, if
applied for alone, would not require a capability
assessment. The combined workload from
several provisions, however, may be significant
enough to warrant an assessment. The
Regions should consult early with the
Headquarters Regional liaisons to determine
whether a capability assessment will be
necessary for a particular application.
Draft capability assessments should be
submitted with draft authorization applications.
in order to identify and resolve problems as
early as possible. The capability assessment
will need to be updated if a long period of time
passes between the draft and official
applications.
Elements. Capability assessments are
composed of two pans: a checklist and a
narrative (Appendix L). The checklist provides
a brief indication of whether the State's
program is •Satisfactory* or 'Needs
Improvement* in four program areas:
• Enforcement;
• Permits and closure plans;
• Corrective action; and
• Management
To the extent that existing information is
adequate, the checklist should be completed
based on available information such as State
program evaluations (e.g., quarterly, mid-year,
or end-of-year reports), monthly State reports,
routine contacts with the State and other
reporting. If available information is not
sufficient however, additional information
should be compiled.
A check in the •Satisfactory column indicates
that the State is operating or can operate its
authorized program without substantial
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Chapter Three - The Program Revision Application
dependence on the Region. 'Needs
Improvement* means that some level of
improvement is needed, which could be either
long-term or short-term. Short-term corrective
measures, however, need not delay
authorization.
Substantial dependence is a subjective
evaluation that considers the unique
situation of each State. While EPA is
responsible for overseeing State programs
and providing technical assistance and
support, a State must be capable of
managing its authorized program without
reliance on EPA. However, acceptance of
joint responsibilities may be appropriate In
some cases. For example, a State may
conduct quality inspections but may not
have the resources to do aH the required
inspections. In this case, EPA may agree to
conduct independent inspections of Federal,
State, and local facfflties, rather than require
the State to accompany EPA, This may
also be appropriate when EPA. has
developed a special expertise that a Stale
does not have, or does not need full-time.
The narrative should explain the checklist in
more detail. Each 'Needs Improvement* should
be discussed, describing the issues and
recommending solutions. State experience or
problems in any new program areas should
also be discussed.
Review. Headquarters will review capability
assessments in order to ensure consistency
among Regional approaches to examining
capability. The Headquarters reviewer will also
ensure that the Region provides documentation
to support its checWtat ratings. No additional
narrative is necessary I the Region submits
current documentation that
explains why the performance is satisfactory.
Where a Region identifies an area as needing
improvement, an action plan must be
developed. The action plan should contain
specific activities and milestones to correct the
problems identified in the capability
aooosomonL Except for minor problems
needing short-term improvements (e.g., timely
submission of reports), any authorization
COMMON CAPABILITY
ASSESSMENT DEFICIENCIES
Discrepancies between HWDMS data
and the assessment
Incomplete or no explanation of
changing assessments
No narrative to explain 'Needs
Improvement*
No action plan addressing
discrepancies
Internal discrepancies in docu-
mentation (e.g., a problem is identified
in the mid-year review but is indicated
as •Satisfactory on the checklist)
decision should be postponed until
improvement is evident Regions should
develop action plans in consultation with Office
of Solid Waste and Office of Waste Programs
Enforcement staff.
APPLICATION COMPONENTS FOR
UNAUTHORIZED STATES
An unauthorized State seeking authorization
must submit to EPA an official application for
review. This application must address ajl
provisions of the Federal program which were
in effect one year prior to submission of the
official application (see 40 CFR 271.3(0). To
assist unauthorized States in meeting these
requirements, EPA has revised the checklists to
consolidate all changes to the RCRA program
through June 30.1989 (see Appendix K).
Consequently, when a State uses these
consolidated checklists, it will be applying for all
requirements that are part of the Federal
program as of June 1989. This is analogous to
the State submitting Consolidated Checklists 1A
through V plus Revision Checklists 1 through
63. EPA plans to update the •Consolidated
Checklists1 armuafly through the State Program
Advisory (SPA) system.
If a State has authority equivalent to Federal
program etomonts which became effective
within the year prior to the State's application,
3-12
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Chapter Three • The Program Revision Application
then, to the extent possible, the State's
application should demonstrate such authority.
This will enable EPA to grant authorization for
the State's equivalent program elements.
Although the State is not required to have a
counterpart for any Federal provision that
became effective during the year preceding its
application, the State will subsequently need to
modify its program to incorporate such changes
in accordance with 40 CFR 271.21 (f).
An unauthorized State's application for
authorization must contain the following
elements:
• A Governor's letter requesting State
program approval;
• A Program Description which explains the
program the State proposes to admini-
ster, together with any forms used to
administer the program under State law;
• A Statement from the State Attorney
General (or the attorney for those State
agencies which have independent legal
counsel) which identifies the legal
authorities upon which the State is relying
to implement the program it proposes to
administer;
• A Memorandum of Agreement that
provides for coordination and cooperation
between the State Director and the EPA
Regional Administrator regarding the
administration and enforcement of the
authorized State program;
• Copies of all applicable State statutes and
regulations, including those governing
State administrative procedures, as well as
the consoidated checklists; and
• Documenttton of public participation
activities (La, notice and opportunities for
comment on the State program prior to
submission of the application to EPA).
The Federal requirements governing the
content of State final authorization applications
are in 40 CFR Part 271. Subpan A. Although
not a requirement of 40 CFR Part 271, EPA
usually requests that States submit appropriate
checklists. Chapters One and Two of the
SCRAM provide guidance, example documents.
and models for these authorization application
elements.
3-13
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Chapter Four - The Program Revision Process
Chapter Four
The Program Revision Process
INTRODUCTION
Review of program revision authorization
applications is conducted by EPA Headquarters
and the Regional Offices. The process entails a
concurrent review, with the Regions serving as
the primary contact with the States. The
culmination of the authorization process is to
codify the decision in the CFR.
STEPS IN THE REVISION PROCESS
Pre-applicatfon consultation
Draft application review
Official application review and
decisionmaking
This chapter explains the purpose of
codification, describes the steps in the revision
process, and explains the roles of Headquarters
and the Regions in the various stages of the
review process.
Note that the review process for program
revision applications is currently under
discussion within EPA. The process
described in this chapter is that which is
currently in use. If and when the process is
revised, this chapter wffl also be revised to
reflect the new review process.
CODIFICATION
Codification is the process of placing a rule in
the Code of Federal Regulations (CFR). Rather
than relying solely on a Federal Register notice
to make EPA's authorization decision formal,
the CFR identifies the specific elements of the
State program that EPA has approved as RCRA
Subtitle C requirements. This is useful for the
regulated community and the public, as they
can see what elements of the RCRA program a
State administers. In addition, it clarifies EPA's
enforcement authority in the event EPA decides
to take an enforcement action in an authorized
State, since EPA can only enforce the
authorized program requirements. Finally, it
identifies the provisions of the State program
EPA cannot enforce because they are 'broader
in scope* than the Federal program.
Codifying State programs is accomplished by
•incorporating by reference* State statutes and
regulations. Other authorization documents,
such as the AG Statement, MOA, and PO are
codified by referencing the title and date, but
are not incorporated by reference. Incor-
poration by reference has the same legal effect
as if the incorporated material were published
in full in the CFR. The incorporated materials
are kept on file in the Office of the Federal
Register, as well as in EPA offices, and are
available to the public.
There are a number of States that have not yet
codified their base programs. Previously
authorized State programs should be codified
as soon as practicable. In most cases, the
State's original base program has been
modified to incorporate subsequent program
revisions. In these cases, the State's current
program should be codified rather than trying to
reconstruct the original base program. The
consolidated checklists (Appendix K) can be
used to facilitate codification of previously-
authorized State programs. EPA may codify
previously-authorized State programs as
separate actions, or as part of authorizing a
program revision. By consolidating these
actions, however, EPA can avoid having to
publish two separate Federal Register notices.
After the authorized program is initially codified,
changes to any of the codified elements of a
State program wifl be reviewed and approved
by EPA as part of the State program revision
4-1
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Chapter Four • The Program Revision Process
process. The Federal Register publication
pertaining to the revision will codify the new or
amended State document. If there is a change
to an authorization document that is not pan of
the revision process (e.g., the MOA is amended
pursuant to joint permitting agreements), then
the codification should be corrected when the
next revision is published in the Federal
Register.
Actions required to codify a program revision
are described below in the appropriate steps of
the program revision process.
PRE-APPLICATION CONSULTATION
Early consultation with EPA is encouraged
when a State is planning to modify its
hazardous waste program, especially if those
changes modify the State's legal authorities.
When a State begins drafting program changes
it should contact the Regional Office so that
EPA can assist the State by arranging for the
review of draft regulations, bills, policies, or
other materials. On request, Headquarters may
assist the Region in the review of draft
modifications. The purpose of this review is to
provide the State with an early indication of
potential authorization problems, at a point in
the process when they may be more easily
corrected.
Within 30 days after a State has completed a
State program modification, the State must
submit to EPA its program change
(§271.21 (e)(4)). The State must also submit a
schedule indicating when the State intends to
submit an application for the program revision.
At that point. EPA will review the schedule to
ensure that it complies with the applicable
deadline and determine the type and extent of
documentation the State wffl need to submit
with its revision application.
DRAFT APPLICATION REVIEW
After EPA determines the type of
documentation that is required in a program
revision application, the State is encouraged,
but not required, to prepare its draft application.
In many cases, the State may be able to
develop a draft of its revision application
concurrently with its program modifications,
especially when the State consulted with EPA
early to identify potential problems and
determine the type of documentation required.
The State would then be prepared to submit its
final, official revision application soon after it
completes the program changes. The State
must submit a draft of its revision application to
EPA no later than 60 days after the cluster
deadline or other applicable deadline in order
to satisfy §27i.2i(e)(4)(ii). The State should
check with the EPA Regional Office to
determine how many copies of the revision
application it should subml (See page 2-5 for
a summary of deadlines for submitting program
revision applications.)
Review of the draft application will involve both
Regional and Headquarters offices. The
appropriate program, legal, and enforcement
offices in the Region and Headquarters will
participate in the review to ensure that all EPA
concerns are identified at the draft stage. The
timeliness of EPA's review will depend on the
complexity of the application and the number of
EPA offices that are involved in the review, and
whether the application is dear and complete.
If critical elements (e.g.. AG Statement,
regulatory checklists) are missing or
inadequate, then the review period may be
terminated and another draft revision
application may be warranted.
The first step in the review process is for the
Regional State Coordinator to distribute the
draft revision application to Headquarters and
to the Regional reviewers. The Regional and
Headquarters Teams concurrently review the
package. The Headquarters Team members
send their comments to the Regional Liaison
who prepares Team comments to send to the
Region. If the Region does not agree with or
understand Headquarters' comments, these
differences must be resolved before
consolidated comments are sent to the State.
The Regional State Coordinator compiles these
comments with comments from within the
Region and sends the State aconsolidated
comment letter. A copy of this letter should be
sent to the appropriate Regional Liaison in
Headquarters' Stats Programs Branch.
4-2
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EXHIBIT 3
Review of Draft Revision Packages
REGION
Regional State Coordinator Distributee
Draft Revision Application
Regional Review Begins
Regional Reviewer Sends Comments
to Regional State Coordinator
Regional State Coordinator CompOee
HO Comments with Regional
HQ
HQ Review Team Leader Distributes
Revision Application to HQ Team
HQ Team Review Begins
HO Team Comments to
HQ Tesm Lssder
HQ Team Comments from Tesm
Lssder to Regional State Coordinator
Regional:
rdbiator Sends a
ConsoMatsd Comment Letter to
the State, and a Copy to HQ
-------
Chapter Four • The Program Revision Process
OFFICIAL APPUCATION REVIEW
AND DECISIONMAKING
Addressing EPA's Comments
After a State receives EPA's comments on its
draft program revision application, it should
begin to address those comments in its official
application. Communication between EPA and
the State during this time is vital to ensure that
the official application review process will go
smoothly and that all comments are addressed
satisfactorily in the official application. When
the State submits its official application, it
should ensure that clean photocopies of the
statutes and regulations that will be
incorporated by reference and the front page of
the cited State statute books and regulation
codes are included. The Office of the Federal
Register requires clean copies for codification.
The State should also work with the Office of
the Regional Counsel to provide the legal
citations for the incorporation of State statutes
and regulations in the Federal Register notice.
As with the review of the draft application,
Headquarters and the Region will independently
review the official application. In reviewing the
official application EPA will generally refer to the
comments on the draft application to ensure
that they were satisfactorily addressed. It is
very helpful for all involved if the State explicitly
responds to each EPA comment This can be
done by repeating each EPA comment and
either providing the response or referencing
where the response can be found in the
application. If there are any issues that are
either not addressed satisfactorily or not
addressed at all, the Region wfll prepare
consolidated comments to the State and
anempt to resoNe the issues with the State.
Exhibit 4 depicts the initial steps in the process
to review the official program revision
application. Comments are turned Into the
Regional State Coordinator for consolidation
and transmitta) to the State. As a general rule,
no further comments will be sent after this date
unless significant issues require the attention of
top Office of Solid Waste and Emergency
Response (OSWER) or Office of the General
Counsel (OGC) management If it is necessary
to send further comments to the State, the
review process will likely be delayed.
Significant changes to the State's application
may result in beginning a new review.
EPA will not normally raise new issues during
the official application review. In certain
circumstances, however, EPA may need to
raise a new issue if it overlooked something in
the draft application or if the State added to or
amended the draft application in a manner that
raises questions not previously identified. In
such a case, the new issues must be resolved
before proceeding to an authorization
determination.
Making the Tentative Determination
After reviewing the official application and
resolving any outstanding issues, the Region
will make a tentative determination to approve
or disapprove the program revision. A Federal
Register notice is published announcing EPA's
intention either to approve or disapprove the
State's program revisions (see Model 0 in
Appendix M). Unlike authorization decisions for
States seeking authorization for the first time,
Headquarters concurrence is not required.
However, there is a ten-day Headquarters
consultation period established in EPA
Delegation 8-7. Dunng this penod the
Headquarters Team will review the decision
documents submitted by the Region. The
Assistant Administrator for OSWER and the
General Counsel are informed that the Regional
Office has recommended approval or
disapproval of a program revision application;
however, their concurrence is not required.
Rulemaklng Options
After making Its tentative decision to approve or
disapprove an application, the Region will
choose from one of two methods to notify the
public of its decision:
• Standard rutemaking (§271.21 (b)(4»; or
• Immediate final rutemaking (§271.21 (b)(3)).
Standard rutemaking involves publishing a
tentative rule decision to approve or disapprove
a program revision in the Federal Register. The
public has 30 days in which to comment on
that rule decision. EPA then reviews the public
-------
EXHIBIT 4
Review of Official Program Revision Application
REGION
HQ
Regional State Coordinator Distributes
Revision Application to HO Regional
Liaison and Regional Team
Regional Review Begins
HQ Review Team Leader Distributes
Revision Application to HQ Team
HQ Team Review Begins
HQ Team Comments to
HQ Team Leader
Regional Comments to Regional State
Coordinator
HQ Team Comments to Regional
State Coordinator
Regional State Coordinator Resolves
Any Remaining Issues and Prepares
CB Notice
Regional State Coordinator
Transmits EH Notice to HQ Review
Team Leader
Initiate
Process for Ten-Day AA
Consultation Period
End of Tan-Day AA
Consultation Period
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Chapter Four • The Program Revision Process
PUBLIC PARTICIPATION
w me REVISION PROCESS
Unlike a State's first authorization appfication,
a public comment period is not required prior
to submttaJ of a revision application.
However, a public comment period js required
by Federal law before EPA approves or
disapproves the proposed revisions.
Therefore, if a State decides to initiate a
public comment period prior to submission of
its proposed changes. EPA must still meet the
Federal requirements for public participation.
In such a case, the public would have two
opportunities to comment on the revisions.
It is the Regions' responsibility to:
• Make sure the notice is published in
appropriate State newspapers
• Arrange the 30-day pubfic comment
period
• Send the notice of tentative
determination to persons on the
State's mailing list
comments and responds to them in a final rule
approving or disapproving the revision.
The immediate final rulemaking option is
designed to streamline the standard rulemaking
procedure. In most cases this approach should
result in only one Federal Register notice
indicating that the State revision is approved (or
disapproved) in 60 days unless EPA receives
an adverse comment within the 30 day
comment period. However, if an adverse
comment is received, one or more subsequent
Federal Register notices wil be needed.
In choosing which option to use, the Region
should consider whether the State has a history
of little or no public interest in previous
authorization decisions and whether the
authorization process is expected to go
smoothly. If so, EPA wffl probably choose to
employ the immediate final approach. For
example, if no comments were received on the
State's initial application for base program
authorization or on recent program revisions,
then subsequent revisions would ordinarily be
processed using the immediate final rulemaking
process.
In circumstances where the process is
expected to be more complex or controversial,
the Agency is more likely to use the standard
rulemaking procedure. For example, if a State
submitted a program revision application for a
large number of changes at the same time and
the Agency expects the revision to generate
public interest (e.g.. there is a history of public
comments on authorization decisions affecting
the State), EPA would follow standard
rulemaking procedures. Also, if the Agency
were planning to disapprove a State program
revision it would use standard rulemaking
procedures since more public comment would
probably result
Processing the Tentative
Determination
After the Region determines the appropriate
process to use, the Regional State Coordinator
should prepare the following documents and
transmit them to the Headquarters Review
Team Leader
• Transmittal memo;
• Federal Register Typesetting Request (SF
234O-1S); and
• Federal Register notice.
If the program revision is to be codified, the FR
notice must contain the appropriate legal
citations for incorporation by reference (see
Appendix M to select the correct model notice).
If the revision wffl not be codified at the time of
authorization, the notice should include a list of
Federal citations and the analogous State
citations covered by the revision application. In
addition, if the program revision is to be
codHtod. the Region must also prepare:
• Letter to the Office of the Federal Register
requesting incorporation by reference; and
• Clean photocopies of State statutes and
regulations (if not previously submitted).
During the ten-day comment period, the
Headquarters Team will review the transmrttai
4-6
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Chapter Four • The Program Revision Process
memorandum and Federal Register notice.
Note that this transmittaJ memo is less formal
than the Action Memo which is used for
authorization decisions on base applications for
unauthorized States since Assistant
Administrator and General Counsel
concurrence is not required. The transmittal
memo does not need to provide for
Headquarters signatures; instead it should
merely request appropriate consultation prior to
publishing the decision.
At the end of the consultation period, the
Headquarters Regional Liaison will submit to
the Office of the Federal Register the Federal
Register notice for publication. Headquarters
will also submit the letter requesting
incorporation by reference and photocopies of
State statutes and regulations. If, however,
Headquarters disagrees with the Regional
decision, the Assistant Administrator for
OSWER must prepare a written response to the
Regional Administrator within the ten-day
consultation period. If there is still
disagreement, more time will be provided for
consideration prior to publishing the notice.
Making the Final Determination
Immediate Final Rulemaklng. Exhibit 5
illustrates the immediate final rutemaking
process. The Region will publish the Federal
Register (see Appendix M) and newspaper
notices announcing the tentative decision and
initiating public comment periods. If no adverse
comments are received on the notice, the
revision will become effective on the sixtieth day
after the Federal Register notice was published.
AdVerve Comment*. If EPA receives one or
more adverse pubic comments, the Regional
Administrator must notify the State that such
comment has been received. If the immediate
final rule is to be withdrawn or otherwise
changed, the Regional Administrator should
also notify Headquarters immediately. A
subsequent Federal Register notice must
appear before the immediate final rule effective
date, otherwise codification will occur
automatfcaBy. The Regional Administrator has
the following four options when responding to
adverse comments:
1. If the Regional Administrator disagrees
with the public comments, he or she may
publish a second Federal Register notice
prior to the effective date of the decision.
This notice will identify the issues raised,
respond to the comments and affirm that
the immediate final rule will take effect as
scheduled.
2. If the Regional Administrator agrees with
the public comments and decides to
reverse the decision, he or she may
publish a final rule before the effective
date of this decision, reflecting the
reasoning for this changed position.
3. If the Regional Administrator agrees with
the comments and decides to reverse his
or her decision but believes the change in
position warrants a new round of public
comment, he or she may withdraw the
immediate final rule prior to its effective
date and simultaneously announce his or
her new decision. The new decision may
either be a proposal (under the standard
rulemaking process) or an immediate final
rule.
4. If the comments raise issues that the
Regional Administrator cannot resolve
before the effective date of the immediate
final rule, he or she must withdraw the rule
before it takes effect If time allows, the
withdrawal notice should provide a specific
discussion regarding reasons for the
withdrawal and what State changes may
be required, if any. At a later date, the
Regional Administrator may publish a
proposed (or immediate final) rule which
provides for a new comment penod. This
option assures that EPA will have whatever
amount of time is necessary to consider all
comments fully.
Whenever a second Federal Register notice is
required, the Regional Administrator will forward
the notice to the Headquarters Regional Team
Leader (see Model F in Appendix M). (nan
abbreviated consuftation period of five work
days, Headquarters win ensure that the
necessary consultation is provided and that the
Federal Register notice is published. In some
cases, a commenter may submit a comment
which causes EPA to reconsider its position on
4-7
-------
EXHIBIT 5
Decisionmaklng Procedures: Program Revision Authorization
Immediate Final Rulemaklng
REGION
Man None* to Newspapere
and Miffing List
Prepare RtsponM to Comments at
•nd of Public Comment Period*
Transmit New Decision EB Notice
to Review Team Leader*
Revision Effective;
Put Documents In Authorization
HO
Publish EB Notice Initiating
Public Comment Period
Publish New Decision and/or
wtttidraw EB Notice*
* Only In the event that adverse comments ore received.
-------
Chapter Four - The Program Revision Process
an issue. If the Regional Administrator and
Headquarters cannot reach agreement on the
issue, then the Regional Administrator may take
Headquarters' position into account, when
making the decision on whether to finalize or
withdraw the rule. However, where the
comment raises a new issue that the Regional
Administrator and Headquarters had not
previously addressed, then the Regional
Administrator should withdraw the rule until
such time as the issue is resolved.
Note that if an adverse public comment is not
applicable to the State's revision, EPA does not
have to respond to it in a second Federal
Register notice. For example, if the adverse
comment concerned the State's land disposal
program whereas the program revision
concerned incineration requirements, a
response to such a comment would not be
necessary. Similarly, EPA would not publish a
response if a person objected to EPA's decision
but gave no reason. The Regional State
Coordinator should consult with the Regional
Counsel when it is not clear whether a
response is required.
Standard Rulemaklng. The standard
rulemakmg procedure requires the Region to
prepare a proposed rule that announces the
availability of the State's program revision for
public review and comment, summarizes the
proposed revisions, and discusses EPA's
proposed approval or disapproval of the
revisions (see Model 0 in Appendix M). The
proposal must provide for a comment period of
at least 30 days beginning on the date of
publication in the Federal Register (see Exhibit
6). Once Headquarters consultation is
complete, the Headquarters Regional Liaison
will submit the Federal Register notice (see
Appendix M) for publication.
When the puMc comment period doses, the
Region wfll review the pubflc comments and
develop a response to those comments.
Headquarters will review those responses and
transmit to the Regions any comments it may
have before the Region prepares the final
Federal Register notice. The Regional
Administrator will then transmit to the
Headquarters Review Team the Federal
Register notice containing his approval or
disapproval. Urtess there are issues identified
in the proposal that remain unresolved,
Headquarters will deliver the final notice to the
Federal Register for publication. If
Headquarters disagrees with the final Regional
decision, the Assistant Administrator for
OSWER must prepare a written response to the
Regional Administrator within the ten work-day
consultation period.
Revision Disapproval
Whether a State program revision goes through
the immediate final rulemaking process or the
standard rulemaking process, any disapproval
action of a revision should:
• Clearly state the reasons for disapproval;
• Discuss the implications of disapproval for
the authorized program;
• Recommend an acceptable alternative
course of action; and
• Include firm, explicit commitments to
specific measures EPA will take to help the
State overcome the problems identified,
and the timeframe for EPA's assistance.
The discussion of the specific measures EPA
intends to take in assisting the State should
appear in the Regional Administrator's
transmttal memorandum and in the Federal
Register notice announcing EPA's disapproval.
4-9
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EXHIBIT 6
Decisionmaking Procedures: Program Revision Authorization
Standard Rulemaklng
REGION
Mad Notice to
and Mailing Ust
Begin Preparing Final EB Notice at
End of Public Comment Period
Transmit Final EB Notice
of Approval/Disapproval to Regional
liaison
Revision Final Decision Efftcttvo
(14 day Delay);
Put Documents In Authorization FBe
HQ
Publish EB Notice Initiating
Public Comment Period
End of Possible Consultation Period
Publish Final EB Notice
-------
^ Glossary
Glossary
Action Memorandum - A memorandum prepared by the EPA Regional Office for the purpose of
obtaining signatures from the appropriate concurring EPA Headquarters offices. An action
memorandum typically contains a summary and description of the action, a discussion of the issues
and how they were resolved, and a recommendation. (Note: This formal memorandum is needed
only for States seeking authorization for the first time.)
Administrative Procedures Act (APA) - Procedural standards which ensure that the public is
informed about the actions of Federal and State government agencies, and that the public's interests
are properly protected.
Annual State Grant Work Program - An agreement negotiated annually between the State and EPA
Regional Office delineating the work activities to be completed by the State as a condition of the
RCRA grant for that year.
Application Approval Process - The procedure by which authorization applications are reviewed and
determinations made within each Regional Office and Headquarters.
Attorney General's Statement - An element of the authorization application. A statement prepared
by the State Attorney General (or the attorney for the State agencies which have independent legal
counsel) that identifies and interprets State legal authorities, and explains how these authorities are
equivalent to the Federal standards.
Base Program - The RCRA program initially made available for final authorization, reflecting Federal
regulations as of July 26,1982.
Cluster System - A system EPA established to improve the efficiency of program revision subminals
and to reduce the burden on the States in prepanng program revision applications. Under the cluster
system, States with authorization are required to modify their programs on an annual basis to adopt
new Federal requirements promulgated during the previous year (see 40 CFR 271.21 (e)).
Code of Federal Regulations (CFR) - A codification of final rules published hi the Federal Register
by the Executive departments and agencies of the Federal government
Complete Application - The State's official authorization application that has been determined by
EPA to be complete, Le., afl necessary components are included.
Draft Application - A preliminary version of the official authorization application.
Federal Register - A document published dairy by the Federal government that contains proposed
and final regulations and notices. Tentative and final authorization decisions are published in the
Final Authorization - Granted to State programs that are equivalent to and no less stringent than the
Federal program, and consistent with the Federal program, as wed as other State programs. Final
authorization allows tor the implementation of the authorized State's regulations in lieu of the Federal
RCRA regulations in that State.
Hazardous and Solid Waste Amendments of 1984 (HSWA) - Amendments to the Resource
Conservation and Recovery Act
Headquarters Review Team - An estabsshed group of EPA staff representing the consulting
5-1
-------
Glossary
Headquarters offices (i.e., Office of Solid Waste, Office of General Counsel, and Office of Waste
Programs Enforcement) responsible for reviewing authorization applications.
Headquarters Review Team Leader - Trie State Programs Branch Regional liaison responsible for
coordinating the efforts of the Headquarters Review Team and coordinating the transmittal of a single
set of written review comments to the Region.
HSWA Program or HSWA Provisions - Elements of the Federal RCRA program that are implemented
pursuant to the Hazardous and Solid Waste Amendments of 1984.
Interim Authorization - Granted to State programs that are 'substantially equivalent" to the Federal
Program (§3006(c) and (g)).
Memorandum of Agreement (MOA) - An element of the authorization application. The MOA provides
for coordination and cooperation between the State Director and the EPA Regional Administrator
regarding the administration and enforcement of the authorized State program.
Modification - A State's actions to change its statute, rules, or other program elements. The term
•modification* also means the actual change itself.
Non-HSWA or Pre-HSWA Program or Provisions - Elements of the Federal RCRA program that are
implemented pursuant to statutory authority that predates the 1984 HSWA,
Official Application - The formal State authorization application submitted to EPA by the Governor.
(Note: A revision application may be submitted by the State Agency Director instead of the Governor.)
Pre-Appllcatlon Statutory Review - An optional EPA review of State statutes prior to the State's
submission of a draft or official application.
Program Description (PD) - An element of the authorization application. The PD explains the
program the State proposes to administer, together with any forms used to administer the program
under State law.
Program Revision - The process of submitting an application and obtaining EPA review and approval
of State program modifications.
Regional Ualson - The Headquarters Review Team member in the State Programs Branch that is
designated to review and coordinate comments for State applications from a particular Region. The
Regional Liaison should maintain day-to-day contact with the State Coordinator in the Regional Office.
Resource Conservation and Recovery Act of 1976 (RCRA) - RCRA is an amendment to the first
Federal solid waste statute - the Solid Waste Disposal Act of 1965. References to 'RCRA' or the
•statute* include amendments to RCRA.
Stats Consolidated RCRA Authorization Manual (SCRAM) - A manual that provides background
information on the entire RCRA State authorization program and outlines the authorization process.
Stats Program Advisories (SPA) - Supplements to the SCRAM and the RCRA State Authorization
Manual that provide regulatory checklists and guidance concerning Federal program changes. SPAs
cover a six-month period.
Subtitle C Program - The program outlined in Subtitle C of RCRA. which establishes a system for
controlling hazardous waste from the time it rs generated until its ultimate disposal in a manner that
protects human health and the environmenL
5-2
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Index
Index
Assistant Administrator 4-4, 4-7, 4-9
Adequate Enforcement 1-2.1-4
Administrative Procedures Act (APA) 3-10
Application Components 3-1
Authorized States 2-1. 2-6
Attorney General's Statement 3-2
Capability Assessment 3-11
Memorandum of Agreement 3-9
Program Description 3-5
State Agency Transmittal Letter 3-2
Unauthorized States 3-1, 3-12, 4-7
Attorney General's Statement 3-2, 3-13
Availability of Information 1-2,1-5'
Base Program Authorization 1-1, 4-7
Broader in Scope 1-1.4-1
Capability Assessment 3-11
Cluster System 2-3, 4-2
Code of Federal Regulations (CFR) 4-1
Codification 4-1, 4-2,4-4, 4-7
Comment Period 4-6
Consistency 1-1,1-2,1-4
Consolidated Checklists 3-4,3-12
Draft Application 3-4,4-2, 4-4
Draft Application Review 4-2
Enforcement Requirements 3-7
Equivalency 1-1.1-2
Extension to State Modification Deadlines 2-5
6-1
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Index
Federal Register 4-2. 4-6, 4-9
Federal Register Notice 4-1. 4-4, 4-6, 4-7, 4-9
Federal Regulatory Changes 2-2
Federal Statutory Amendments 2-2
Federally-Initiated Program Changes 2-2
Federal Regulatory Changes 2-2
Federal Statutory Amendments 2-2
Interpretation of Federal Legal Authorities 2-2
Final Authorization Requirements 1-1,1-2
Adequate Enforcement 1-2, 1-4
Consistent Program 1-1, 1-2, 1-4
Equivalent Program 1-1,1-2
No Less Stringent Program 1-1,1-2.1-4
Notice and Hearing in the Permit Process 1-2,1-5
State Availability of Information 1-2,1-5
Final Determination 4-7
Hazardous and Solid Waste Amendments of 1984 (HSWA) 1-1
Headquarters Review Team 4-6. 4-9
Headquarters Review Team Leader 4-6
HSWA Authorization 1-1
HSWA Clusters 2-5
HSWA Program or HSWA Provisions 1-1
Immediate Final Rulemaking 4-6, 4-7, 4-9
implementation in Authorized Slates 1-6
Incorporation by Reforonco 3-3,4-1,4-6,4-7
Initial Application 3-6, 4-6
Interim Authorization 1-1,1-6
Interpretation of Federal Legal Authorities 2-2
Legal Challenges 2-2
Less Stringent Provisions 2-6
6-2
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^ Index
Memorandum of Agreement (MOA) 3-9. 3-13, 4-1
Modification 2-1. 2-6
No Less Stringent Program 1-1. 1-2, 1-4
Non-HSWA Clusters 2-3
Non-HSWA or Pre-HSWA Program or Provisions 1-1
Notice and Hearing in the Permit Process 1 -2, 1 -5
Official Application 3-12. 4-4
Official Application Review and Decisionmaking 4-4
Pre-Application Consultation 4-2
Program Description (PD) 3-5. 3-13. 4-1
Program Revision 1-1,2-1
Program Revision Requirements 2-3
Public Availability of Information 1-Z 1-5
Public Participation in the Revision Process 4-6
RCRA Clusters -. 2-5
Regional Administrator 3-9, 4-7. 4-9
Regional Liaison 4-2. 4-7. 4-9
Regional State Coordinator 4-2. 4-4, 4-6
Regional Office 2-1, 4-2. 4-4. 4-6. 4-7. 4-9
Regulatory Checklists 3-1, 3-fc 3-3. 3-4. 3-5. 4-2
Resource Conservation and Recovery Act of 1976 (RCRA) 1-1
Revision Disapproval 4-9
Standard RutomaMng 4-4. 4-6. 4-9
State Administrative Changes 2-1
State Agency TransmMal Letter 3-2
State Consolidated RCRA Authorization Manual (SCRAM) i, 1-1. 3-9
6-3
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Index
State-Initiated Program Modifications 2-1
Legal Challenges 2-2
State Administrative Changes 2-1
State Regulatory Amendments 2-1
State Statutory Changes 2-1
State Modification Deadlines 2-3
State Program Advisories (SPA) 2-2, 3-12
State Programs Branch (SPB) 4-2
State Regulatory Amendments 2-1
State Statutory Changes 2-1
Stringent (More) 1-1, 1-2, 2-6
Subtitle C Program 1-1
Substantial Dependence 3-11. 3-12
Tentative Determination 4-4, 4-6
Timeframe for Submrttal of Program Modifications and Revision Applications 2-5, 2-6
Transmittal Letter 3-2
Unauthorized State Application Components 3-12. 3-13
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United States OSWER Directive
Environmental Protection Oflice 01 Solid Waste 95*0.00-9A-1
Agency Waihinqton. DC 20460 October 1990
State Authorization Manual
Volume II: Appendices
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LIST OF APPENDICES
Appendix A:
Appendix B:
Appendix C:
Appendix D:
Appendix E:
Appendix F:
Appendix G:
Appendix H:
Appendix I:
Appendix J:
Appendix K:
Appendix L:
Appendix M:
Appendix N:
Appendix O:
Appendix P:
Program Description Review Checklist
Memorandum of Agreement Model
Memorandum of Agreement Review Checklist
Model Consolidated Attorney General's Statement
Model Revision Attorney General's Statement
Attorney General's Statement Review Checklist
List of Revision Checklists by Cluster
Numerical Listing of Revision Checklists
and Corresponding Cluster
Cluster Rule
Revision Checklist Linkage Table
Incorporation by Reference Forms
Revision Checklists with Federal Register Notices
Consolidated Checklists
Capability Assessment Model Checklist
Model Federal Register Notices
Guidance for State Authorization Issues
- §3006(f) Authorization Guidance
- Mixed Waste Authorization Guidance
Guidance for Using WordPerfect Files
Guidance for CFR Files
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