1 RCRA Expert Brownbag Series How Does a Rookie Survive State Authorization? Presented By: Alima Patterson EPA Region 6 and Wayne Roepe EPA Headquarters October 29, 2015 What is the Purpose of this Webinar? This is not a training session. The purpose of this webinar is to provide EPA and State staff with a roadmap. Specifically, it will provide information and directions about materials on State Authorization that will assist the new EPA and State staff. Details of the authorization process and procedures will be part of subsequent RCRA Expert webinar series. 2 3 LOOK AROUND YOUR SURROUNDINGS AND TELL ME WHAT YOU SEE. DO YOU SEE WHAT I SEE? State Authorization is the mechanism that EPA uses to authorize States to administer portions of the RCRA Subtitle C hazardous waste program. This is to empower States to make enforcement more efficient to protect human health and the environment. 4 Being a rookie in State Authorization is like finding yourself on a side of a mountain with a heavy load on your back. You know that the back pack you are carrying has what you need to continue to climb the mountain, but you also realize that if you attempt to reach the back pack by letting go of the mountain, you will fall. So, what do you do? First of all, do not panic! This is only the beginning of your journey. Why is This Webinar Important? Empower new State and Regional Staff to understand their role in State authorization. Ensure that State programs are as stringent as the Federal program. Assist new EPA reviewers in developing skills to ensure that States meet Federal requirements. Ensure that EPA can authorize States. 5 Webinar Focus In this webinar, we will share with you: 10 Key Elements to Success A Case Study Available resources, especially the RCRA State Authorization Website 6 As a Rookie, know that: You have been thrown into the middle of a program. There is a foundation that is already laid. Everything else in State authorization either adds to, revises, clarifies, updates or replaces portions of that foundation. 7 #1 Understand Your Role and Goals State Staff - To assist in the development of your States program. - To demonstrate to EPA that the State is capable of running a hazardous waste program in lieu of EPA. - Figure out the easiest way to work with EPA. EPA Staff - To assess whether State is capable of implementing new federal regulations. - Assist other regional staff in their technical reviews. - Provide support and training that States need. - Inform the public about EPAs authorization decisions. 8 #2 Understand the RCRA Statutes and Regulations The foundation of the State authorization requirements are outlined in the RCRA statutes, especially RCRA sections 3006, 3008, 3009 and The RCRA Statute can be found at:resource-conservation-and-recovery-acthttp://www2.epa.gov/laws-regulations/summary- resource-conservation-and-recovery-act Know the hazardous waste regulations collectionCode=CFR Know your product. Know who your clients are. Understand the specifics of the States authorities. Use the RCRA Orientation Manual as a valuable resource. (http://www2.epa.gov/hwgenerators/resource- conservation-and-recovery-act-rcra-orientation-manual)http://www2.epa.gov/hwgenerators/resource- conservation-and-recovery-act-rcra-orientation-manual 9 Base Program HSWA Amendments Historical Authorization Documents Authorization history of Your State(s) Impact of States authorization Program on the Regulated Community 10 #3 Understand the Background and History of the HWM Program What does the Authorization Rookie see? Specific documents must be included in an authorization application. EPAs review and approval process. Timelines for submission of an application to EPA. EPA modifications that States have to adopt in order to remain consistent with the Federal program. 11 #4 Know the requirements for the 40 CFR Part 271 State Authorization Application and EPAs Review Process # 4 (contd) Know the 40 CFR Part 271 Requirements Roadmap for a State Rookie: Use the Rule Checklists. May also add more stringent, more extensive, or broader in scope language. Send a copy of the proposed rules to EPA. Send adopted regulations to the State legislature for approval. Publish the State regulations for public comment. Draft the Program Description (PD). Download the Attorney Generals Certification and complete the form. Prepare the Memorandum of Agreement (MOA). Send the draft application to EPA for review and feedback. EPA will advise the State to make any corrections in the regulations and other documents. 12 # 4 (contd) Know the 40 CFR Part 271 Requirements (contd) For an EPA Rookie: Develop an awareness of the States rulemaking process. Monitor Federal regulatory processes and communicate with States. Inform States, as well as EPA Enforcement and Permit groups about the impact of HSWA on permit issuance and enforcement. Encourage States to communicate with you about changes. Involve ORC, Enforcement and Permit Branches, and if necessary EPA HQ, in the review process. Identify State-initiated changes and determine their impact. Work with your States to resolve issues from the review process. Use the Office of Federal Registers guidelines for authorization FR notices on EPAs ADP Library website. 13 #5 Know EPA and State Procedures, Policies and Guidance Know the procedures, policies and guidance that help: A State in preparing an authorization package; and EPA in reviewing and evaluating the adequacy of a States application. Guidance documents - the how to documents that provide instructions on how to implement the program. Policy Statements the should do documents that outline EPAs position or give instruction on how a procedure should be conducted. The primary source of these items is the RCRA State Authorization website, currently at:14 #6 Understand the Implementation of Federal and State Laws that Affect State Authorization What Federal provisions must EPA enforce? What State provisions operate in lieu of EPA provisions? Which State provisions can EPA enforce? Know and understand: Non-delegable EPA provisions HSWA and non-HSWA provisions Federal optional rules not yet adopted by States State more stringent provisions State broader-in-scope provisions 15 #7 Take Advantage of Any Training, Workshops, Webinars, SOPs from EPA HQ, Regions and States Introduction to State Authorization (Authorization 101). State Authorization Standard Operating Procedures for States. State Authorization Standards Operating Procedures for an EPA Region. Seek advice from experts in other Regions and States. 16 #8 Develop Ways for EPA and States to Work Together Identify your relationship needs. An effective working relationship creates success and satisfaction on the job. EPA rookie: Show your appreciation when your States assist you to resolve regulatory issues. Establish a line of open communication with your State. Develop an excellent relationship with your State counterpart. 17 #9 Make Effective Use of Contractors, If Possible Contractors may have historical and institutional knowledge of: The State Authorization program in general. Specific first-hand knowledge of the State authorization history in your Region or State. All of this may help you acquire the needed skills at a faster rate. 18 Lessons Learned as an EPA Authorization Coordinator Work with State partners. Keep an open line of communication. Be aware that the State might modify its authorized program without informing EPA. Do not assume that your State counterpart knows all the requirements of State authorization. Make sure that the States adoption of regulations is consistent with the authorities in its statutes. Make sure that the States interpretation of its regulations is consistent with the Federal regulations. 19 #10 ABOVE ALL, HAVE A PASSION FOR THE RCRA PROGRAM AND STATE AUTHORIZATION. BE PREPARED! 20 21 Case Study State of Masada Background of the Case Unpermitted storage of methyl bromide (U209), a listed toxic hazardous waste. Investigation of case by the EPA Criminal Investigation Division. Affidavit of EPA authorization staff regarding the authorization history of Masada and the issue of Agency jurisdiction. 22 Authorization Research Results The requirements for small quantity generators can be found primarily in 40 CFR 261.5, , and Base Program requirement significantly amended by HSWA final rules in Checklists 23 and 42. Masada was authorized for the Base Program and Checklists 23 and 42. The State had changed the SQG regulations to be different from what EPA authorized without notifying EPA. The States regulations submitted for the case were not authorized by EPA and were less stringent than EPAs regulations. 23 Outcome of the Case The defendants agreed to enter guilty pleas; however, they urged the Court to reject the pleas using the argument that their unpermitted storage was permissible under the States regulations. Based on the regulatory research provided by the EPA Team, the Court: Rejected the defendants argument; Adopted EPAs interpretation of the regulations; and Accepted the guilty pleas. The U. S. Department of justice sent a letter of commendation and appreciation to the EPA team. 24 This Case Highlights the Following: Importance of being familiar with the scope of RCRA state authorization programs. The requirements of the hazardous waste permits affected this case. Knowledge of where to find guidance, policies and procedures. Importance of updating and authorizing State modifications. Understanding EPAs review process. The need for States to notify EPA about changes to their program. EPAs oversight responsibilities; States cannot issue HSWA permits unless authorized or have joint permitting agreement with EPA. 25 26 Federal Regulatory Resources RCRA Orientation Manual (2014): Hazardous Waste Generator Regulations, A User- Friendly Reference Document (2012): National Enforcement Training Institute (NETI) eLearning Center, RCRA Compliance Monitoring:and-recovery-act-rcra-compliance-monitoringand-recovery-act-rcra-compliance-monitoring RCRA Online: RCRA Training Modules, an archive providing an overview of a specific regulatory topic (no longer updated):conservation-and-recovery-act-rcra-training-modulesconservation-and-recovery-act-rcra-training-modules 27 Authorization Related Resources RCRA State Authorization Website: If available in your Region or State, the State Consolidated RCRA Authorization Manual (SCRAM) and the more recent State Authorization Manual, Volume I and II (May 1995) ADP Library, Federal Register publishing guidelines:milestones/fedreg.htm#submitmilestones/fedreg.htm#submit 28 RCRA State Authorization Websiteregs/state/index.htmregs/state/index.htm State Authorization Revision Materials Policies and Guidance Documents State Authorization Tracking System (StATS) Reports Training Manuals 29 State Authorization Revision Materials Rule Checklists, Summaries and FRNs for every promulgated rule (currently at checklist 235). Consolidated and Special Consolidated Checklists (through 2002). Checklist Reference Materials (linkage tables, rule lists, etc.) 2001 Model Memorandum of Agreement (MOA) 1997 Model Program Description Model Federal Register Notices (as of 2007) 30 Policies and Guidance Documents These documents include: The 12/23/14 More Stringent or Broader in Scope memo, The 9/7/05 Functional Equivalence memo, 2002 Incorporation by Reference Guidance, Other memos and policies regarding Universal Waste, Availability of Information, and various other policies. 31 State Authorization Tracking System (StATS) Reports State Authorization FRNs and State StATS Reports Authorization/Adoption status for all rules Yearly Authorization Activity Comparison graphs for EPA regions and states 32 Training Materials Introduction to State Authorization Training Course (circa 2001) Codification Workbook (circa 1999) 33 34 Where Can You Find Information About the Webinar? All of the materials, including the recording of the webinar, will be posted to: https://clu-in.org/conf/tio/rcraexpert2/ Once the presentation and recording are posted, visitors to the site will need to: Click on the Links to Additional Resources at the bottom of the page for the presentation document; and Click on the Go To Seminar to view the recording. 35