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U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF INSPECTOR GENERAL
Partnering with states and other stakeholders
Incomplete Oversight of
State Hazardous Waste Rule
Authorization Creates
Regulatory Gaps and Human
Health and Environmental Risks
July 31, 2018
Report No. 18-P-0227

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Report Contributors:	Tina Lovingood
Steve Hanna
Alisha Chugh
Naomi Rowden
Abbreviations
CFR	Code of Federal Regulations
EPA	U.S. Environmental Protection Agency
GPRA	Government Performance and Results Act
HSWA	Hazardous and Solid Waste Amendments
OIG	Office of Inspector General
OLEM	Office of Land and Emergency Management
ORCR	Office of Resource Conservation and Recovery
RCRA	Resource Conservation and Recovery Act
Cover Image: RCRA cleanup of potential hazardous waste at the Nogales Wash in Arizona.
(EPA photo)
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U.S. Environmental Protection Agency
Office of Inspector General
At a Glance
18-P-0227
July 31, 2018
Why We Did This Project
We audited the U.S.
Environmental Protection
Agency's (EPA's) oversight of
the implementation of new
Resource Conservation and
Recovery Act (RCRA)
regulations by authorized state
hazardous waste programs.
RCRA Subtitle C specifies
requirements for the
management of hazardous
waste. Congress gave the
states the option to assume
primary responsibility for
implementing the hazardous
waste rules, with oversight from
the federal government. For a
state to assume the regulatory
lead as the implementing
agency, it must be authorized by
the EPA to do so. Once a state
has received EPA authorization
for the base hazardous waste
program, the state must
continue to revise its program to
authorize any additional
required rules promulgated by
the EPA. All states except
Alaska and Iowa have been
authorized by the EPA to
implement the hazardous waste
program.
This report addresses the
following:
• Partnering with states and
other stakeholders.
Send all inquiries to our public
affairs office at (202) 566-2391
or visit www.epa.gov/oia.
Listing of OIG reports.
Incomplete Oversight of State Hazardous Waste
Rule Authorization Creates Regulatory Gaps and
Human Health and Environmental Risks
What We Found
Most states are authorized to implement
the majority of new required hazardous
waste rules promulgated by the EPA.
However, states and the EPA have taken
many years to authorize rules—from less
than 1 year to more than 31 years. No state
has been authorized by the EPA for all required rules. For the 173 required
rules, the number not authorized ranges from six to 98 per state; eight states
have not been authorized for more than 50 rules. Although states may have valid
reasons for not seeking authorization for a rule, these rules are nonetheless
unauthorized.
The EPA lacks internal controls to validate the completeness and accuracy of
state authorization information, and does not collect sufficient data to identify
reasons for delays or lack of authorization of RCRA rules. Further, the EPA has
not defined authorization goals to track program performance.
For Hazardous and Solid Waste Amendments of 1984 (HSWA) rules, EPA
regions can administer the requirements if a state has not received
authorization. However, for non-HSWA rules, the EPA cannot administer a rule
when a state has not yet been authorized for the rule, which creates regulatory
gaps. Unauthorized non-HSWA rules create risks to human health and the
environment.
Recommendations and Planned Agency Corrective Actions
We recommend that the Office of Land and Emergency Management work with
regions to identify and track rules for which states have not sought authorization
and then prioritize those rules, collect information to improve the authorization
process, improve data collection, and implement performance measures.
The recommendations are resolved with agreed-to actions pending.
Noteworthy Achievements
The EPA has taken steps to improve the state authorization process, including
conducting a Lean effort to reduce the backlog and time required for
authorization, implementing monthly conference calls with regions, and
identifying state authorization as a priority in the fiscal years 2018-2019
National Program Managers' Guidance.
The lack of timely
authorization of
hazardous waste rules
by states creates human
health and environmental risk.

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
THE INSPECTOR GENERAL
July 31, 2018
MEMORANDUM
SUBJECT: Incomplete Oversight of State Hazardous Waste Rule Authorization Creates
Regulatory Gaps and Human Health and Environmental Risks
Report No. 18-P-0227
FROM: Arthur A. Elkins Jr.
TO:
Barry Breen, Acting Assistant Administrator
Office of Land and Emergency Management
This is our report on the subject audit conducted by the Office of Inspector General (OIG) of the
U.S. Environmental Protection Agency (EPA). The project number for this audit was OPE-FY16-0033.
This report contains findings that describe the problems the OIG has identified and corrective actions the
OIG recommends. This report represents the opinion of the OIG and does not necessarily represent the
final EPA position.
The Office of Resource Conservation and Recovery, within the Office of Land and Emergency
Management, is responsible for implementing the Resource Conservation and Recovery Act.
In accordance with EPA Manual 2750, your office provided acceptable corrective actions and milestone
dates in response to OIG recommendations. All recommendations are resolved and no final response to
this report is required. However, if you submit a response, it will be posted on the OIG's website, along
with our memorandum commenting on your response. Your response should be provided as an Adobe
PDF file that complies with the accessibility requirements of Section 508 of the Rehabilitation Act of
1973, as amended. The final response should not contain data that you do not want to be released to the
public; if your response contains such data, you should identify the data for redaction or removal along
with corresponding justification.
We will post this report to our website at www.epa.gov/oig.

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Incomplete Oversight of State Hazardous
Waste Rule Authorization Creates Regulatory
Gaps and Human Health and Environmental Risks
18-P-0227
Table of C
Chapters
1	Introduction		1
Purpose		1
Background		1
Responsible Office		4
Scope and Methodology		4
Noteworthy Achievements		5
2	EPA Has Not Ensured States' Compliance with
Timelines for RCRA Rule Authorizations		6
States Have Received Authorization for Most Rules, but
Authorization Often Takes Many Years		6
Better Oversight Is Needed to Identify Reasons for Delays
and to Track Performance of State Authorization		8
Rules Not Authorized Have Impacts on EPA Resources and
Environmental Protection		11
Conclusions		13
Recommendations		14
Agency Response and OIG Evaluation		14
Status of Recommendations and Potential Monetary Benefits		15
Appendices
A OLEM Response to Draft Report and OIG Comment	 16
B Distribution	 20

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Chapter 1
Introduction
Purpose
The Office of Inspector General (OIG) of the U.S. Environmental Protection
Agency (EPA) conducted this audit to determine what oversight the EPA provides
to ensure that states implement new1 Resource Conservation and Recovery Act
(RCRA) rules.
Background
RCRA, enacted in 1976 and subsequently amended, created the framework for a
waste management program for hazardous and non-hazardous solid wastes.
Facilities that generate, transport, treat, store or dispose of hazardous waste are
regulated under RCRA Subtitle C. RCRA protects human health and the
environment in two ways:
1.	Prevention: Preventing future environmental problems from being caused
by waste.
2.	Corrective Action: Cleaning up current environmental problems caused
by the mismanagement of waste.
State Authorization Overview
Under RCRA, states and territories may assume primary responsibility for
implementing the hazardous waste program, with oversight from the federal
government. For a state or territory to assume this responsibility, the state must
first obtain authorization from the EPA. To receive authorization from the EPA,
RCRA requires a state or territory program to be at least equivalent to and
consistent with the federal program. A state or territory that has received final
authorization from the EPA for the base hazardous waste program2—known as an
authorized state or territory—can then implement and enforce hazardous waste
rules under RCRA. Authorized state rules act "in lieu of' federal rules.
States use different methods to adopt federal hazardous waste rules. States may
adopt the federal rules verbatim, incorporate by reference by citing the federal
1	For the purpose of this report, we use the term "new rules" to refer to hazardous waste rules created by the EPA
after the rules comprising the base program were promulgated.
2	According to EPA staff the base hazardous waste program is defined by eight consolidated regulation checklists
created by the EPA in 1983 to reflect hazardous waste regulations covering generators, transporters and handlers.
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hazardous waste aile in the state regulations, or re-write the
federal rules as state hazardous waste rules that are equivalent to
or more stringent than the federal rules.
The Hazardous and Solid Waste Amendments of 1984 (HSWA)
amended RCRA and added provisions including land disposal
restrictions, RCRA corrective action for solid waste management
units and regulation of small-quantity generators. When the EPA
creates new hazardous waste rules, it does so under the authority
of either or both of these laws. Rules promulgated under HSWA
authority are immediately effective in all states and are
administered by the EPA until states become authorized for those
rules. In contrast, rules promulgated under RCRA authority (non-HSWA rules)
cannot be enforced by the EPA in states with an authorized base program and do
not go into effect until these states
become authorized for the rules.
While authorized states bear the primary
responsibility for implementing the
RCRA hazardous waste program, the
EPA still plays a role by offering
financial assistance to states to help
them develop and implement their
hazardous waste programs, by
establishing broad national priorities,
and by making certain that states
properly carry out the RCRA program. In addition to 48 states, Guam and the
District Columbia are also authorized for the base RCRA program. The EPA
administers RCRA in states and territories that do not have base program
authorization, such as Alaska, Iowa and Puerto Rico.3
Updating Authorized State Programs
As the federal hazardous waste program changes, authorized state programs may
need to be revised to remain in compliance. New federal rules that are more
stringent or broader in scope than the existing rules always require states to
update their programs. Federal rules that are less stringent or reduce the scope of
the existing federal program are optional for states to adopt and are noted as such
in the Federal Register.
From 1980 through 2015, the EPA promulgated 335 federal rules implementing
the RCRA hazardous waste program. Of these, 220 are more stringent than prior
Scientists sampling an oil spill as
part of a RCRA Corrective Action.
(EPA photo)
HSWA. Rules: EPA rules promulgated
under HSWA authority are administered
by EPA until states become authorized
for these rules. An example of a HSWA
rule is Corrective Action,
Non-HSWA Rules: Rules promulgated
under RCRA authority do not go into
effect under RCRA and cannot be
enforced by EPA until states become
authorized for these rules. An example
of a non-HSWA rule is the Definition of
Solid Waste.
3 RCRA defines states as "any of the several States, the District of Columbia, the Commonwealth of Puerto Rico,
the Virgin Islands, Guam. American Samoa, and the Commonwealth of the Northern Mariana Islands." For the
remainder of this report, we use the term "states" to refer to authorized states, including Guam and the District of
Columbia.
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existing rules and are required to be adopted by authorized states, while 115 are
less stringent than prior rules and are therefore considered optional. Excluding 39
rules that are corrections to rules and the eight base program rules, there are 173
rules that need to be authorized by the EPA for states already authorized for the
base RCRA program. Most of the RCRA rules were promulgated by the EPA
before 2000; only eight required rules have been promulgated from 2010 through
2015 (Figure 1).
Figure 1: Required RCRA rules promulgated by EPA each year
Required Rules by Promulgation Year
(excluding corrections rules and 8 base program rules)
25
20
15
10
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Source: OIG analysis of EPA data.
The three basic steps in the program modification process include:
•	Updating the program,
•	Submitting a revision application, and
•	Receiving EPA approval.
An authorized state must modify its program every July 1 to reflect changes to the
federal program occurring during the 12 months preceding the previous July 1.
For example, states needed to modify their programs by July 1, 2016, to reflect
rule changes from July 1, 2014, to June 30, 2015. An additional year is allowed if
state statutory changes are required, and the EPA Regional Administrator may
extend the time requirement by another 6 months if certain conditions are met.
After modifying its program, a state has 30 days to submit a copy of the change to
the EPA and 60 days to submit a package for approval to the EPA. There is no
time requirement in the statute or rules that specifies when the EPA must approve
or otherwise respond to state submissions for revisions to their program.
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EPA's Oversight Role, Grants and Priorities
To verify that states properly implement their hazardous waste programs,
EPA staff have oversight responsibilities to:
•	Promote national consistency in RCRA implementation.
•	Encourage coordination and agreement between the EPA and states on
technical and management issues.
•	Verify proper enforcement by the state.
•	Verify appropriate expenditure of federal grant funds.
The EPA provides grants to states to assist them in developing or implementing
authorized hazardous waste programs. Each EPA regional office receives an
allotment based upon multiple factors, such
as population and the number of various
types of waste management facilities in
each state within the EPA region. States
then submit proposed work plans that
outline planned activities in the upcoming
year, including permitting, enforcement
and program management. EPA regions
negotiate with each state over the specific
work to be accomplished with these grant
funds. States may receive up to 75 percent
of their program costs from the RCRA
grant fund.
Responsible Office
The Office of Resource Conservation and Recovery (ORCR), within the Office of
Land and Emergency Management (OLEM), is responsible for implementing
RCRA and ensuring responsible national management of hazardous and non-
hazardous waste. EPA regional offices have the lead in reviewing state
authorization applications.
Scope and Methodology
We conducted our work from September 2016 to May 2018. We conducted this
performance audit in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our findings and
conclusions based on our audit objectives. We believe that the evidence obtained
provides a reasonable basis for our findings and conclusions based on our audit
objectives.
Liner being installed in base of RCRA cell at the Malone
Service Company hazardous waste cleanup site, Texas.
(EPA photo)
18-P-0227
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We reviewed EPA documents, including the EPA's National Program Managers'
Guidance, RCRA Orientation Manual, Introduction to State Authorization Training
Manual, and EPA memoranda on state authorization. We also reviewed relevant
portions of RCRA and 40 CFR Part 271 applicable to the RCRA state authorization
program. In addition, we reviewed documents related to the agency's Lean efforts
that were conducted for the RCRA state authorization program.
We interviewed EPA headquarters staff and management in ORCR, as well as
EPA regional staff in Regions 1, 3 and 9. We analyzed state authorization data
provided by ORCR staff in December 2016 in Microsoft Access format, using
Microsoft Excel to identify rules not authorized by states and to measure the
elapsed time from rule publication to state authorization. Using a representative
sample of this dataset population, we completed data reliability testing to
determine the accuracy and completeness—as well as the usability—of the data.
Based on the results of our data reliability assessment, we verified the accuracy of
data we used for timeliness calculations, which included the following fields:
(1) federal rule descriptions, (2) federal rule publication dates, (3) initial final
authorization dates for state base programs, (4) dates for when a state rule was
authorized by the EPA, and (5) HSWA/non-HSWA designation for each rule.
Noteworthy Achievements
According to EPA staff, the agency has tried to improve the authorization process
for state RCRA rules through Lean efforts. Goals for the June 2016 Lean event
were to reduce the amount of time to get rules to and through the state authorization
process, and to reduce the backlog of pending authorizations. As a result of the
Lean event, EPA staff said they identified and removed 10 non-value-added steps.
EPA staff said they also identified technological opportunities to increase
efficiency in the authorization program, such as by submitting draft state
authorization packages and their components online, and including EPA and state
interaction on draft rules and checklists through the EPA Sharepoint system. The
EPA also conducted a pilot program in two states (in Regions 1 and 4) to test the
improvements identified in their Lean event. According to EPA staff, implementing
the Lean process nationwide is the ORCR's main authorization priority, and one
outcome of the Lean event was the RCRA Authorization Training and Conference
held March 20-22, 2018.
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Chapter 2
EPA Has Not Ensured States' Compliance with
Timelines for RCRA Rule Authorizations
Most states are authorized to implement a majority of new required hazardous
waste rules promulgated by the EPA. However:
•	States and the EPA have taken many years to authorize rules—from less
than 1 year to more than 31 years.
•	No state has been authorized by the EPA for all required rules. For the
173 required rules,4 the number of rules not authorized ranges from six to
98 per state; eight states have not been authorized for more than 50 rules.
Although states may have valid reasons for not seeking authorization for a rule,
these rules are nonetheless unauthorized. EPA oversight did not result in timely
state authorization of all required new hazardous waste rules. The EPA lacked
internal controls to validate the completeness and accuracy of state authorization
information, and did not collect sufficient data to identify reasons for delays or lack
of authorization of RCRA rules. Further, the EPA has not defined authorization
goals to track program performance. For HSWA rules, EPA regions can administer
the requirements if a state has not received authorization for the rule. However, for
non-HSWA rules, the EPA cannot administer the rule when a state has not yet been
authorized for the rule, which creates regulatory gaps. Unauthorized non-HSWA
rules create risks to human health and the environment.
States Have Received Authorization for Most Rules, but Authorization
Often Takes Many Years
Most states are authorized for a majority of the required hazardous waste rules,
but it often takes many years for states to become authorized for the new rules. In
addition, all states have at least some rules for which they are not authorized.
The EPA promulgated 173 federal hazardous waste rules required for authorized
states to implement, not including base program rules or corrections to rules. Each
state incorporates the federal requirements into its own rules and obtains
authorization from the EPA for these rules. Excluding the base program and
corrections rules, nationally, about 85 percent of hazardous waste rules have been
authorized in states. Specifically, for the 50 authorized states, of a total of 8,650
rules to be authorized, 7,351 have been authorized.
4 There are 220 required hazardous waste rules. Excluding 39 rules that are corrections to rules and the eight base
program rules, there are 173 rules that need to be authorized by the EPA for states already authorized for the base
RCRA program.
18-P-0227

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For many new rules, states have taken years to obtain authorization from the EPA.
About 28 percent were authorized in less than 5 years while 57 percent required
5 years or more, as shown in Figure 2.
Figure 2: Years from rule promulgation to state authorization
Rule Status
(excluding base program, corrections, and optional rules)
¦ Not Authorized Authorized < 5 years ¦ Authorized >= 5 Years
Source: OIG analysis of EPA data.
Authorization of new hazardous waste rules can take less than 1 year to more than
31 years. The average time for rules to be authorized by the EPA is 7.7 years.
Regions vary in the average time they take to authorize rules—from 5 to 12 years.
Many of the rules not authorized were promulgated years ago, including some
promulgated more than 30 years ago. Figure 3 provides details.
Figure 3: Number of rules not authorized - by promulgation year
Rules Not Authorized
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Promulgation Year
Source: OIG analysis of EPA State Authorization Tracking System data.
18-P-0227
7

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There is no time requirement in the statute or rules that specifies when the EPA
must approve or otherwise respond to state submissions for revisions to their
program. States can vary considerably in the number of rules that are waiting to
be authorized by the EPA. No states are authorized for all rules; the number of
unauthorized rules per state range from as few as six to as many as 98 rules;
eight states have not been authorized for more than 50 rules.
EPA regional staff we interviewed gave a variety of reasons for why states may
delay or not pursue adoption of certain hazardous waste rules or portions of rules:
•	No impacted industry in the state: A state would be unlikely to adopt a
rule impacting industries that do not exist in the state. For example,
Region 1 said that the Boiler and Industrial Furnace rule impacts only two
of their six states.
•	Loss of staff resources: Some states have also been negatively impacted
by a loss of experienced staff with institutional knowledge of how to
assemble RCRA state authorization packages.
•	State legislative issues: Region 9 said some states have moratoriums in
their state legislatures that do not allow regulatory changes for a specified
time, or the state cannot place the rule on the legislative calendar.
•	Reluctance to pursue authorization for rules being challenged in
court: Many states are waiting for court rulings before proceeding with
authorization of the 2015 Definition of Solid Waste rule. Federal courts
just ruled against portions of the rule on July 7, 2017. Only one state has
received authorization for the entire rule.
•	Little incentive for states to proceed with the formal authorization
process: If states have similar or equivalent rules in place that have
already been adopted through their state legislative process, they do not
receive any added benefit in going through the additional workload to
have their rules authorized by the EPA.
Although the EPA has identified this list of practical concerns encountered by
states anecdotally, the EPA does not collect data to track the rates at which these
problems are encountered. Improved data will allow the EPA to better understand
the reasons for delays in state authorization and better enable the EPA to provide
solutions to improve the program.
Better Oversight Is Needed to Identify Reasons for Delays and to
Track Performance of State Authorization
Although the EPA has some oversight efforts in place to track states' progress in
becoming authorized for new rules, we found that EPA oversight does not result
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in timely state authorization of all required new hazardous waste rules. More steps
can be taken to improve EPA oversight, such as having better controls in place to
verify the completeness and accuracy of collected state authorization data,
collecting better data that identifies reasons for state authorization delays, and
defining target goals for this program to improve program performance.
Limited Oversight Tools Are Available to EPA
RCRA created the framework for a comprehensive waste management program
and directed the EPA to develop specific rules to implement the law, including
providing the option for states to become authorized to implement the law through
state hazardous waste programs. RCRA requires that authorized state programs be
at least equivalent to and consistent with the federal program, even as the federal
rules change.
However, there are no consequences for state programs if they do not keep their
hazardous waste rules up to date with the federal rules. The RCRA statute does
not authorize the EPA to assess penalties against the states for noncompliance.
The EPA can withdraw authorization from a state not in compliance, but EPA
staff said that it would be too extreme to withdraw the program. In addition, the
EPA has few tools to encourage state implementation of federal rules.
The EPA currently uses the hazardous waste grant process to provide some
oversight and monitoring of state authorization progress. States receive grant
funding for implementation of state hazardous waste management programs, and
in some regions states' goals and progress for authorization activities are included
in grant agreements and discussed in meetings between the EPA and states.
However, the EPA's grant distribution methodology does not take into account
states' authorization status—that is, grant funding is not tied to state authorization
progress. States that are not implementing the full program or delaying adoption
of rules are still receiving the same amount of grant funding as states taking full
and timely action. EPA staff expressed differing opinions as to whether it would
be helpful to take state authorization status into account in the grant funding
amounts—they said this was briefly considered during development of the 2015
state grant distribution methodology but was rejected. Further, EPA staff said that
although state authorization status is not a factor in the allocation methodology for
the distribution to regions, the regions can (and do) consider authorization status
as they provide funds to individual states.
The EPA also implemented a few other oversight efforts. For example, OLEM staff
hold bi-monthly conference calls with EPA regions and states to discuss state
authorization topics. According to the EPA, these calls are OLEM's main direct
point of contact with state staff on authorization issues, and are an important
communication tool where the Lean process efforts are discussed, issues are
addressed, and new authorization products are presented. Also, ORCR issued a
memo in December 2014 regarding the scope of state rules, to assist EPA regions
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in determining whether state rules are more stringent or broader in scope than
federal rules. The EPA also recently identified state authorization as a priority in its
OLEM National Program Manager Guidance for fiscal years 2018 to 2019. Further,
EPA staff said state authorization issues are routinely discussed at the national
RCRA Division Directors' meetings.
EPA Can Take More Steps to Improve Oversight
The EPA does not track the reasons for delays in state authorization in its state
authorization database, nor does it define target goals for this program to help
improve program performance. Taking these steps would enable the EPA to
improve its oversight and better establish a consistent playing field for the
regulated community.
The Government Accountability Office's 2014 Standards for Internal Control in
the Federal Government says that management should design information
systems5 to obtain and process information to respond to an entity's objectives
and risks. Management is also expected to design appropriate types of control
activities in its information system, such as application controls. Application
controls are those controls that are incorporated directly into the computer
applications to achieve validity, completeness and accuracy of data. These include
controls over data input and processing. The standards also state that management
uses quality information or data to make informed decisions and evaluate the
entity's performance in achieving key objectives and addressing risks.
The EPA maintains a database that tracks state authorization progress. However,
the current database does not readily identify where in the authorization process
delays are occurring. Data are incomplete for when states have adopted new
RCRA rules and submitted packages to the EPA regions for approval. Further, the
agency has not implemented controls to verify the accuracy and completeness,
and therefore the quality, of information collected in the database. As a result, the
EPA has insufficient data to determine whether the lengthy amount of time is
occurring during the state modification of its program or during EPA review and
approval of the program revision. Improving the collection of state authorization
data will allow the EPA to track program performance to make informed
decisions and necessary improvements in the authorization process.
The Government Performance and Results Act of 1993 (GPRA), as amended by
the GPRA Modernization Act of 2010, also requires agencies, among other
things, to develop a federal government performance plan, and requires such a
plan to establish government performance goals for the current and next fiscal
years, as well as identify activities, entities and policies contributing to each goal.
It also requires each plan to describe how performance goals contribute to
5 According to the Government Accountability Office's standards, "An information system is the people, processes,
data, and technology that management organizes to obtain, communicate, or dispose of information. ... An
information system includes both manual and technology-enabled information processes."
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objectives of the agency's strategic plan. For example, the RCRA Corrective
Action program's 2005 GPRA goals measured two interim cleanup milestones
known as the Human Exposures and Groundwater Environmental Indicators. The
Human Exposures Environmental Indicator measured whether all human
exposure pathways were currently under control or blocked. The Groundwater
Environmental Indicator measured whether the migration of contaminated
groundwater had been stopped. However, the EPA has not defined goals for the
RCRA state authorization program. Establishment of such goals would create
accountability for the program and further improve the EPA's oversight of the
program by identifying targeted goals for measuring program performance.
Rules Not Authorized Have Impacts on EPA Resources and
Environmental Protection
The impact of the lack of authorization of hazardous waste rules by states varies by
the type of rule. For ITSWA rules, the EPA carries the workload to implement them
in states that have not been authorized for the particular rule. For non-HSWA rules,
the rule does not go into effect until states adopt the rule, and cannot be enforced by
the EPA until the states are authorized for the rule. This creates a regulatory gap
and risk to human health and the environment, and an inconsistent regulatory
landscape across the states. The HSWA/non-HSWA distinction is illustrated in
Figure 4.
Figure 4: Distinction between HSWA and non-HSWA rules
HSWA Rules I Non-HSWA Rules
u II
Immediately effective in all states
and administered by EPA until the
state becomes authorized for the
rule
Do not automatically go into effect in
states and cannot be enforced by EPA
until the state becomes authorized for
the rule.
1,

Results in a federal regulatory gap and
potential risks to human health and
the environment
Results in potential expenditure of
limited EPA resources
Source: OIG analysis.
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If a state is not authorized for a HSWA rule, the EPA implements that rule.
However, this requires the expenditure of EPA resources to manage a program
intended for state management. For example, according to EPA staff, Pennsylvania
has not been authorized for corrective action although it has 355 hazardous waste
facilities listed on the 2020 Corrective Action Baseline—more than any other state.
EPA Region 3 staff informed us that they have approximately 10 full-time staff
managing the Pennsylvania corrective action program.
If a state is not authorized for a non-HSWA rule, the EPA cannot administer the
rule, which results in a regulatory gap. The state could have a similar rule in place
that it is administering; if not, the lack of authorization for the federal rule creates
a risk to human health and the environment and an inconsistent playing field for
the regulated community. EPA Region 1 enforcement staff told us they had to
stop or delay two enforcement cases when they realized the state was not
authorized for the non-HSWA rule.
We determined that there are almost 1,300 instances of required rules for which
various state hazardous waste programs have not been authorized. Of the rules for
which states have not received authorization, there are about 500 each of HSWA
and non-HSWA rules, and about 300 rules that have components of both. States
vary in the number of HSWA and non-HSWA rules not authorized (see Figures 5
and 6).6
Figure 5: Number of HSWA rules not authorized by state
HSWA Rules Not Authorized - Implemented by EPA
VT
MT
ND ...

UN
		
5D |_5
1 WY

|

	
"J

HraTJ VH
I MO
AK


* * *.
-
Not shown
DC- 10-20
Cum- More than ID
a Fe^ef [han 10
| 10-20
| Mare ttwi 20
~ Nol aulhorned fa1 base pfogiain
Source: OIG analysis of EPA data.
6 Figures 5 and 6 do not include rules not authorized that have both HSWA and non-HSWA components. The
HSWA/non-HSWA/both designations are determined by EPA staff and are identified at the Rule Checklists for
Applications for State Authorization website.
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Figure 6: Number of non-HSWA rules not authorized by state
Net »*wwrr
DC - 10-20
Guam - More than 2$
Mai authorized for base program
Source: OIG analysis of EPA data.
All states have at least one HSWA rule and at least five non-HSWA rules for
which they have not received authorization. The range is from one to 49 HSWA
rules and from five to 27 non-HSWA rules. Nine states are not authorized for
more than 20 HSWA rules, which means that the EPA is responsible for
implementing and enforcing the rules in those states. Four states are not
authorized for at least 20 non-HSWA rules, which means that those rules are not
in effect under RCRA in those states, resulting in a regulatory gap.
Conclusions
For the RCRA hazardous waste program, EPA oversight does not result in states
becoming authorized for new hazardous waste rules in a timely manner. Although
most of the rules have been authorized, some remain unauthorized in all 50 states.
Further, for many new rules, states have taken years to obtain authorization from
the EPA. When states do not keep their hazardous waste programs up to date, it
creates an inconsistent playing field for the regulated community and means
citizens in different states are unevenly protected from hazardous waste risks.
With improved oversight, the EPA can focus its resources to create consistency
for the regulated community and better protect human health and the
environment.
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Recommendations
We recommend that the Assistant Administrator for Land and Emergency
Management:
1.	Work with EPA regions to identify and track rules for which states have
not sought authorization under the Resource Conservation and Recovery
Act Subtitle C hazardous waste program and identify the reason
authorization has not been pursued by the state, and then prioritize rules
for authorization by the states.
2.	Develop and implement a plan to collect the necessary data on state
authorizations to identify the cause of delays and make informed decisions
on how to improve the process.
3.	Improve data quality for state authorizations under the Resource
Conservation and Recovery Act Subtitle C hazardous waste program by
implementing internal controls to verify the accuracy and completeness of
the data.
4.	Develop and implement state authorization performance measures for the
Resource Conservation and Recovery Act Subtitle C hazardous waste
program to track annual progress.
Agency Response and OIG Evaluation
The acting Assistant Administrator for OLEM provided a response. OLEM stated
that it appreciates the OIG's attention to the authorization of state hazardous
waste management programs under RCRA, and that the report and its
recommendations will fit in well with its ongoing efforts to improve the RCRA
state authorization process. OLEM agreed with all recommendations, and the
recommendations are resolved with agreed-to actions pending.
Appendix A contains OLEM's response to our draft report. We reviewed the
response and revised the report as appropriate.
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Status of Recommendations and
Potential Monetary Benefits
RECOMMENDATIONS






Potential





Planned
Monetary
Rec.
Page



Completion
Benefits
No.
No.
Subject
Status1
Action Official
Date
(in $000s)
14 Work with EPA regions to identify and track rules for which
states have not sought authorization under the Resource
Conservation and Recovery Act Subtitle C hazardous waste
program and identify the reason authorization has not been
pursued by the state, and then prioritize rules for authorization by
the states.
14 Develop and implement a plan to collect the necessary data on
state authorizations to identify the cause of delays and make
informed decisions on how to improve the process.
14 Improve data quality for state authorizations under the Resource
Conservation and Recovery Act Subtitle C hazardous waste
program by implementing internal controls to verify the accuracy
and completeness of the data.
14 Develop and implement state authorization performance
measures for the Resource Conservation and Recovery Act
Subtitle C hazardous waste program to track annual progress.
Assistant Administrator for 3/31 /19
Land and Emergency
Management
Assistant Administrator for 3/31/19
Land and Emergency
Management
Assistant Administrator for 3/31/19
Land and Emergency
Management
Assistant Administrator for 9/30/19
Land and Emergency
Management
1 C = Corrective action completed.
R = Recommendation resolved with corrective action pending.
U = Recommendation unresolved with resolution efforts in progress.
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Appendix A
OLEM Response to Draft Report and OIG Comment
(Dated June 19, 2018)
MEMORANDUM
SUBJECT: Response to Office of Inspector General Draft Report No. OPE-FY16-0033
"Incomplete Oversight of State Hazardous Waste Rule Authorization Creates
Potential Regulatory Gaps and Human Health and Environmental Risks," dated
May 21, 2018
FROM: Barry Breen
Acting Assistant Administrator
TO:	Arthur A. Elkins, Jr., Inspector General
Office of Inspector General
Thank you for the opportunity to respond to the issues and recommendations in the subject audit
report. Following is a summary of the agency's overall position, along with its position on each
of the report recommendations. The agency agrees with all the recommendations, and thus for
each recommendation we have provided high-level intended corrective actions and estimated
completion dates to the extent we can.
AGENCY'S OVERALL POSITION
The Office of Land and Emergency Management (OLEM) appreciates the Office of Inspector
General's (OIG's) attention to the authorization of state hazardous waste management programs
under the Resource Conservation and Recovery Act (RCRA). Effective management of this
program is essential for ensuring that environmental obligations are met. In fact, as explained to
the OIG at the initiation of this review, the Office of Resource Conservation and Recovery and
EPA's regional offices were already involved in a broad array of substantial state authorization
program performance improvement efforts which continue and remain ongoing. As such, this
report and its recommendations will fit in well with our ongoing efforts to improve the RCRA
state authorization process.
OLEM believes that the report should discuss in greater detail that in many cases even though a
state has not been authorized for a federal hazardous waste rule, the state has nonetheless
adopted the rule. States have adopted 40% of the universe of rules for which they are not
authorized. In this situation the state has full regulatory authority for implementation and
enforcement. Further, in these instances it is likely that EPA has already reviewed the state rules.
Therefore, the state would have incorporated EPA comments that ensure that rules are at least as
stringent as the federal rules. EPA recommends that states seek and reflect EPA review before
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the final promulgation of state rules. The report falls short of a full acknowledgement and
discussion of this critical point and as such the report's characterization of potential regulatory
gaps could be misleading.
OIG Response 1: While states may have adopted rules, it is not clear that the adopted rules
meet the authorization criteria without formal approval by the EPA. We have no basis for
determining if the adopted rules are equivalent to the authorized rule without extensive
analysis.
Another overall concern that OLEM has is the report fails to define the scope and significance of
the cited regulatory gaps. Rules vary in their significance and impact and by essentially treating
all the rules as though they have the same reach and importance the OIG report, in some cases,
does not accurately gauge the impact of the cited regulatory gaps. For example, most of the
unauthorized non-Hazardous and Solid Waste Amendments (HSWA) rules are minor in nature
and many are less stringent. We also note that in many instances, where a state has not been
authorized for a HSWA rule, states are conducting some implementation activities, lessening the
impact on EPA resources.
OIG Response 2: Determining the impact of lack of implementation of rule authorization,
such as defining whether a rule is "minor," is beyond the scope of this report. However, we
wish to clarify that "less stringent" rules are not considered in our analysis, as these would be
considered optional for authorization. Our analysis included only the required rules, and
excluded optional rules and rules that were corrections to prior rules.
Finally, we would like to provide clarification regarding the report's reference to the RCRA
authorization bi-monthly conference call that OLEM conducts. This call is an important tool that
is used to manage the RCRA state authorization process. The call includes not just the EPA
regions but the states as well, and is OLEM's main direct point of contact with state staff on
authorization issues. This is an important communication tool where the Lean process efforts are
discussed, issues are addressed, and new authorization products are presented.
OIG Response 3: We modified the report to include this additional information.
OLEM appreciates the acknowledgement of the Agency's Lean management efforts to improve
the efficiency of the RCRA authorization process. We also note that the recommendations do not
touch upon steps and interactions within the RCRA authorization process between EPA and the
states. We continue to believe that national implementation of the authorization process reforms
identified in the recent Lean Pilot streamlining efforts will have a significant impact on the time
and effort needed for states to adopt and gain authorization for the many EPA rulemakings under
the RCRA hazardous waste management program. Therefore, we plan to implement the
recommendations in a pragmatic and efficient way that preserves the resources essential to
maintain our primary state authorization program focus, which is continuing the national
development and rollout of the Lean process reforms. With these considerations in mind, OLEM
accepts the OIG's recommendations in the draft report as described below and agree that actions
undertaken in response to these recommendations will support our ongoing efforts.
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AGENCY'S RESPONSE TO REPORT RECOMMENDATIONS
Agreements
No.
Recommendation
High-Level Intended
Corrective Action(s)
Estimated Completion by
Quarter and FY
1
Work with EPA regions to
identify and track rules for
which states have not
sought authorization under
the Resource Conservation
and Recovery Act Subtitle
C hazardous waste
program and identify the
reason authorization has
not been pursued by the
state, and then prioritize
rules for authorization by
the states.
OLEM will interview regional
staff from all ten EPA regions
and document the reasons why
states have not pursued
authorization for specific
rules. OLEM will also
prioritize rules for
authorization by the states as
appropriate and track them.
2nd Quarter FY 2019
2
Develop and implement a
plan to collect the
necessary data on state
authorizations to identify
the cause of delays and to
make informed
decisions on how to
improve the process.
OLEM will interview staff
from all ten EPA regions and
document the cause of delays
in authorization. These data
will be factored into the
Agency's Lean process reform
efforts, which will include
national recommendations to
improve the authorization
process.
2nd Quarter FY 2019
3
Improve data quality for
state authorizations under
the Resource Conservation
and Recovery Act Subtitle
C hazardous waste
program by implementing
internal controls to verify
the accuracy and
completeness of the data.
OLEM will develop data
reporting standards and
deadlines for the regional
offices to ensure that new data
events are fully reported and
entered into the State
Authorization Tracking
System (StATS).
2nd Quarter FY 2019
4
Develop and implement
state authorization
performance measures for
the Resource Conservation
and Recovery Act Subtitle
C hazardous waste
program to track annual
progress.
OLEM will develop and
implement RCRA state
authorization performance
measures to track annual
progress.
4th Quarter FY 2019
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CONTACT INFORMATION
If you have any questions regarding this response, please contact Wayne Roepe, in OLEM's
Office of Resource Conservation and Recovery, at (703) 308-8630.
Attachments
cc: Nigel Simon
Steven Cook
Kathleen Salyer
Sonya Sasseville
Kevin Christensen
Tina Lovingood
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Appendix B
Distribution
The Administrator
Deputy Administrator
Special Advisor, Office of the Administrator
Chief of Staff
Chief of Operations
Assistant Administrator for Land and Emergency Management
Agency Follow-Up Official (the CFO)
Agency Follow-Up Coordinator
General Counsel
Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for Public Affairs
Director, Office of Continuous Improvement
Principal Deputy Assistant Administrator for Land and Emergency Management
Director, Office of Resource Conservation and Recovery, Office of Land and
Emergency Management
Audit Follow-Up Coordinator, Office of the Administrator
Audit Follow-Up Coordinator, Office of Land and Emergency Management
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