Title 40—Protection of Environment--Volume 1
PART 255—IDENTIFICATION OF REGIONS AND AGENCIES FOR SOLID WASTE MANAGEMENT
§ 255.1   Scope and purpose.
(a) These guidelines are applicable to policies, procedures, and criteria for the identification of those areas which have common solid waste management problems and which are appropriate units for planning regional solid waste management services pursuant to section 4002(a) of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (the Act). The guidelines also define and guide the identification of which functions will be carried out by which agencies pursuant to section 4006 of the Act.
(b) The purposes of these guidelines are to (1) provide useful criteria for selecting the regions and agencies to be identified pursuant to section 4006 of the Act and (2) provide guidance for conducting the process which will result in formal identification of those regions and agencies.
(c) Identifications made pursuant to these guidelines should be consistent with State solid waste management plans and strategies. A State strategy establishes: Goals for prevention of adverse effects on the environment resulting from improper solid waste disposal including protection of surface and ground water quality, air quality and the land; priorities among waste types; priorities among disposal practices; and the roles of existing agencies with responsibilities in solid waste management. The identification process should cover all waste types (residential and commercial solid waste, hazardous wastes, industrial sludges and pretreatment residues, municipal sewage sludge, air pollution control residue, septage, mining and agricultural waste, other industrial waste, and solid waste from community activities), all disposal practices (impoundments, pits, ponds, lagoons, landfills, dumps, land-spreading, and industrial leaching fields) and all technological approaches (conservation, recovery, incineration, disposal).
§ 255.2   Definitions.
The Act contains an extensive list of definitions in section 1004 which are applicable here. There are further definitions of terms in 40 CFR part 29 of this chapter which apply unless the context herein requires otherwise.
§ 255.10   Criteria for identifying regions.
The following criteria are to assist in identifying regions pursuant to section 4006(a) of the Act.
(a) Geographic areas which have a history of cooperating to solve problems in environmental or other related matters should be considered.
(1) Regions encompassing existing regional, including countywide, systems or institutions, including those of the private sector, should be evaluated. Changes in their boundaries may be needed for economic viability or other reasons in keeping with the State plan.
(2) Boundary selection which would require the creation of new agencies should be considered only where necessary. The relationship among established agencies should be considered. Where institutional gaps or inadequacies are found, regions should be identified keeping in mind which agencies would be able to fill those needs.
(b) The size and location of regions should permit resource recovery and conservation in accordance with the objectives in section 4001 of the Act.
(1) A region's size and configuration should be considered, weighing transportation costs against economies of scale.
(2) Left-over regions having inadequate resources or volumes of waste should be avoided.
(3) Location should be considered relative to available transportation and to markets for recovered resources.
(c) The volume of wastes within a region will influence the technology choices for recovery and disposal, determine economies of scale, and affect marketability of resources recovered. A region should include sufficient volume of waste to support the goals and objectives of the State plan, including materials or energy recovery as appropriate.
(d) Waste type should be considered since it also affects management options. Industrial or hazardous waste streams may warrant special consideration or special boundaries.
(e) The effect of geologic and hydrologic conditions, such as soil suitability, land availability, natural barriers (rivers and mountains), the quantity and availability of water resources, and the susceptibility of ground water to contamination should be considered. Aquifer protection in accordance with State water quality management plans and policies could influence boundary selection.
(f) Coordination with ongoing planning for other purposes may be an influence in selecting boundaries.
(1) The local and regional planning process should be integrated into the State planning process.
(2) Use of a common data base should be encouraged among transportation, land use, and other planning areas.
(3) To the extent practicable, coterminous planning regions should be encouraged, and larger regions should be multiples of whole smaller regions.
(4) Coordination should be provided with those agencies designated for water quality management planning under section 208 of the Federal Water Pollution Control Act, with underground injection control agencies designated in accordance with the Safe Drinking Water Act, and with air quality planning agencies designated under the Clean Air Act.
§ 255.11   Criteria for identifying agencies.
The following criteria are intended to assist in the process of agency selection pursuant to section 4006(b) of the Act. They may also be useful in pointing out needed improvements in the qualifications of the selected agencies.
(a) Existing agencies with demonstrated satisfactory ability to plan, manage, or operate solid waste management services should be considered for planning and implementation responsibilities. Agencies which have completed planning that resulted in successful implementation of solid waste management facilities or services should be given priority consideration for future planning responsibilities when they otherwise meet these criteria.
(b) An agency to be identified as responsible for conducting regional solid waste management planning should:
(1) Be a representative organization composed of, or whose membership is composed of, individuals at least a majority of whom are elected officials of local governments or their designees having jurisdiction in the planning region.
(2) Have planning jurisdiction in the entire planning region.
(3) Be capable of having the planning process fully underway within 1 year after identification.
(4) Have established procedures for adoption, review, and revision of plans and resolution of major issues, including procedures for public participation in the planning process.
(5) Have appropriate experience and skills to perform all of its assigned responsibilities, including expertise for the particular waste type, processing or disposal technology, and functional area. (Attention is directed to OMB Circular No. A-95, paragraph 1.e., part IV of Attachment A which encourages the designation of established substate district comprehensive planning agencies as the agencies to carry out areawide planning assisted or required under any Federal program).
(c) In identifying agencies for solid waste management planning and implementation under section 4006 of the Act, the State should review the solid waste activities being conducted by water quality management planning agencies designated under section 208 of the Federal Water Pollution Control Act. Where feasible, identification of such agencies should be considered in the joint identification processes of subpart C of this part. There should be a formal means of coordination established with the State water quality management agencies.
(d) Planning objectives will influence agency selection. Distinctions may be made between policy planning and facility planning and between planning a single solid waste management system and comprehensive planning which addresses trade-offs among various media.
(e) For coordinating planning and implementation under the State plan, as required in section 4003(1)(c), consideration should be given to identifying one agency for both functions. Where separate planning and implementation agencies are selected, there should be some means to ensure implementation, such as State legislation or an interagency agreement that all constituent jurisdictions will abide by the plan. Furthermore, strong coordination should be established between the planning agency and the implementing agency. During the planning period, the implementation agency should have continual access to plan development processes. There should be an administrative procedure to resolve conflicts between planners and implementers.
(f) The agency responsible for carrying out the regional plan should be constituted with authority to implement the plan in its constituent jurisdictions.
(g) The need for a reliable volume of waste to supply disposal or recovery facilities should be addressed. The Agency providing such facilities whose member jurisdictions could choose whether or not to utilize the facility should analyze that need and consider methods such as franchising or public utility controls to assure an adequate supply.
§ 255.20   Preliminary identification of regions.
Preliminary identification of regions should be made by the Governor or his representative after consultation with regional and areawide planning agencies, water quality and solid waste management planning agencies, cities, and counties and other appropriate units of general purpose local government. The Governor should notify the concerned agencies of his recommendations concerning boundaries. Where the regional identification has already been established by State legislation or other method in keeping with these guidelines, this notification need only request comments on the existing arrangement.
§ 255.21   Local consultation on boundaries.
Any chief executive of a general purpose government within the State may comment on the Governor's recommendation concerning the boundaries.
(a) The purposes of these comments are to assure that the experience of local agencies is used to fullest advantage in boundary decisions, that incompatible institutional arrangements are not forced, and that significant local considerations are not overlooked.
(b) When the objectives of the Act concerning local consultation can be met by an equivalent or existing process established under State administrative procedures acts or other State procedural guidance, the Governor may request that the EPA accept that process in fulfillment of the grant eligibility criteria under section 4007 of the Act.
§ 255.22   Establishing regional boundaries.
Under section 4006(a) of the Act the formal means for identifying regional boundaries are to be regulations promulgated by the Governor. Where the identification of areas has already been made by State legislation or other means which have legal stature equivalent to the required regulations, and where notification and consultation have occurred pursuant to §§ 255.20 and 255.21 of this part, such legislation may be used in lieu of those regulations. Where substantial disagreement persists between the Governor and local officials, normal State administrative and judicial appeals procedures are available to resolve such conflict.
§ 255.23   Joint identification of agencies.
(a) The Governor should designate a lead agency to manage the identification process. That agency should review established notification procedures to determine that at least all general purpose local governments within the State, all units of regional governance, all existing solid waste and water quality management planning agencies, and all areawide agencies and the state process under Executive Order 12372 will be notified. If necessary, a supplemental distribution list should be prepared. Consideration should be given to addressing individual offices within those agencies.
(b) The Governor should, by correspondence or State notification procedures, notify the agencies on the distribution list (paragraph (a) of this section) of the purpose and schedule of the joint identification process. This may be coincident with the notification in § 255.20.
(c) The Governor, an appropriate legislative committee, and appropriate local elected officials may submit nominations of agencies and functions to the lead agency appointed by the Governor. This lead agency should make such nominations public.
(d) Chief executives of agencies on the distribution list may comment by letter on the nominations.
(e) If a disagreement exists which cannot be settled by correspondence or a meeting with the Governor's representative, a public hearing should be held and all elected officials of local general purpose governments within the region should be invited. The purpose of this meeting will be for the local officials to reach a consensus regarding the agency(ies) to be formally identified.
(f) When a consensus is reached among local elected officials a formal agreement should be made in conformance with State administrative procedures. It should be binding until revised in accordance with this subpart.
(g) When the local consensus is in agreement with the State opinion, the State should confirm that agreed arrangement, formally establishing the duties and responsibilities of the identified agencies by legislative resolution or executive order.
(h) In the event that a consensus cannot be reached before 270 days after promulgation of regulations pursuant to § 255.22 the Governor should designate a State agency to develop and implement the plan for the concerned region.
§ 255.24   Procedure for identifying interstate regions.
If the Governor's recommendation, the local consensus, or a neighboring Governor's recommendation is that an interstate region be identified, the procedures described in this subpart should be extended to include notification and comment of all concerned officials in the entire recommended region.
(a) Section 4006(c) of the Act establishes specific procedures for the conduct of interstate identification processes.
(b) Recommendations, nominations, and comments resulting from processes described in §§ 255.20 and 255.21 that concern interstate regions should be brought to the attention of the appropriate EPA Regional Administrator.
(c) The Governor should evaluate the use of interstate metropolitan area (Standard Metropolitan Statistical Area) boundaries for planning and management purposes, and consider nominating such areas where appropriate.
§ 255.25   Public participation.
Public participation in the process of identifying regions and agencies should be provided for, encouraged, and assisted by the State and local officials.
§ 255.30   Responsibilities established.
The following duties and responsibilities should be assigned for all appropriate areas pursuant to section 4006.
(a) Disposal of municipal solid waste should be an identified responsibility throughout the State. In the event that no local or regional agency is held responsible for disposal for a region, a State agency should be identified and held accountable.
(b) Where the State plan identifies municipal sewage sludge disposal, hazardous waste disposal or other functions needing attention in a region, an agency should be identified as being responsible for that function in that region.
(c) These responsibilities may be assigned with the intent that private industry be the actual purveyor of service.
§ 255.31   Integration with other acts.
The Governor shall integrate the provisions of these guidelines for purposes of administration and enforcement, and should avoid duplication to the maximum extent practicable, with the appropriate regional identification provisions of the Clean Air Act (42 U.S.C. 1857 et seq. ), the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq. ), the Safe Drinking Water Act (42 U.S.C. 300f et seq. ), the Toxic Substances Control Act (15 U.S.C. 2601 et seq. ), the Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C. 1401 et seq. ) and other appropriate Acts of Congress.
§ 255.32   Coordination with other programs.
The region and agency identification criteria (§ 255.11) specify review of solid waste activities being conducted by water quality management planning agencies, underground injection control agencies, and air quality management agencies. There should be a formal means of coordination established between any agencies established under section 4006 which are not identical with these agencies. Coordination should be established so that permittees under the National Pollutant Discharge Elimination System of the Federal Water Pollution Control Act will be consulted concerning disposal of residual sludges.
§ 255.33   Inclusion of Federal facilities and Native American Reservations.
Major Federal facilities and Native American Reservations should be treated for the purposes of these guidelines as though they are incorporated municipalities, and the facility director or administrator should be considered the same as a locally elected official.
§ 255.40   Notification of status.
This subpart describes procedures which may ultimately be required by EPA when it publishes regulations governing application and eligibility for grants under section 4007. Under these regulations the appropriate EPA Regional Administrator will consider the identifications made under section 4006 as one of the conditions of grant eligibility.
The Regional Administrator may accept, in State grant applications, notification of the status of these identifications to ensure that premature decisions on State plan development will not be forced by the timing of the identifications specified in the Act. Procedures are outlined here to advise the States of what EPA expects to require in such notification.
(a) The notification should specify those regional boundaries and agencies which are uncontested at the time of submission, and specify a schedule of hearings and determinations of subsequent identification of regions and agencies as consensus is reached.
(b) The appropriate level of detail and the timing of the identifications to be made should be established for each planning region after agreement between the State and the appropriate EPA Regional Administrator. The timing should depend upon how well the State plan is developed, the environmental and economic decisions to be made, and the existing management approaches to their resolution.
(c) The notification should list the major known interested agencies and private operators within each planning region and describe how they will be included in the process. Where appropriate, it should include an expression of their interest and a definition of the extent and limits of their role in solid waste management planning.
(d) The notification should provide a schedule for phasing of plan development with the identification of agencies to carry out those plans, showing the projected maturation of management agencies and the milestones for those agencies in taking over the plan implementation process.
(e) This notification should include establishment of State agencies where regional planning and implementation agencies have not been identified within 270 days of the Governor's promulgation of regulations identifying regional boundaries.
§ 255.41   Procedure for revision.
The procedure for revising regional identifications or agency responsibilities should be specified by the notification.
(a) The State should review and, if appropriate, revise or modify the identification of regions and the responsibilities of local and regional agencies at intervals of less than 3 years. Review and modification should include, but not be limited to, the following areas:
(1) Whether new regions should be identified, or whether present boundaries should be modified.
(2) Whether responsibilities of an agency should be expanded or reduced due to changes in the needs for solid waste functions in the region.
(b) Revisions or adjustments to the State plan may require minor boundary or agency changes from time to time. The appropriate EPA Regional Administrator should be notified of such revisions by the State solid waste agency.
(c) Major revisions or adjustments in agencies or boundaries should be made in consultation with local officials and be subject to the same procedures used in the original identification process. Notification of such revisions should be submitted with State plan updates.