Oregon Department of Environmental Quality

Part III

Memorandum of Agreement

Portland Oregon

July 28, 1995
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Memorandum of Agreement

Revision Authorization Application

Oregon Department of Environmental Quality

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Portland, Oregon

June 1995

MEMORANDUM OF AGREEMENT

BETWEEN

THE STATE OF OREGON

AND

THE UNITED STATES ENVIRONMENTAL PROTi::CTION AGENCY

REGION 10

I. GENERA~

This Memorandum of Agreement (hereinafter "Agreement") establishes policies,

responsibilities, and procedures pursuant to 40 CFR 271.8 for the State of Oregon's

Hazardous Waste Program (hereafter "State Prograrn'jauthorized under Section 3006 of the

Resource Conservation and Recovery Act (hereinafter "RCRA" or ''the Act") of 1976 (42

USC 6901 et seg.) as amended (Public Laws 94-580,96-482,98-616) and the United States

Environmental Protection Agency (hereafter EPA) Regional Office for Region 10. This

agreement further sets forth the manner in which the State and EPA will coordinate the

.State's administration and enforcement of the State program.

This agreement is entered into by the Director of the Department of Environmental Quality

(hereinafter "Director" or ''the State', and the Regional Administrator, EPA Region 10

(hereinafter "Regional Adrninlstratorvor "EPA).

For administrative purposes, the Department of Environmental Quality will serve as lead

agency to simplify coordination and communication between the State and ~PA.

Nothing in thisagreementshall be construed.torestrictln anyway EPA's authoiity to fulfill its

oversight and enforcement responsibilities under RCRAas amended, Nothing in this·

agreement shall be construed to contravene any provision of 40 CFR Part 271.

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This Agreement may be modified upon the initiative of either party in order to ensure

consistency with State orFederal program modifications made or for any other purpose

mutually agreed upon, and will bereviewed.at least once a year...Any revisions or
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modifications must be in writing and must be signed by the State and the. EPA. This'

Agreement will remain in effect until such time as State program authorization is withdrawn

by or is voluntarily transferred to EPA according to the criteria and procedures established in

40 CFR 271.22 and 40 CFR 271.23.

This Agreement is being executed because the State is receiving authorization for certain

RCRA amendments. This Agreement supersedes the Agreement which was effective

October 4, 1994.

This agreement shall be executed by the Director and the Regional Administrator and shall

become effective at the time the State's authorization takes effect, which shall be the date

set out in the Federal Register notice of the Regional Administrator's decision to grant

authorization to the State.

II. POLICY STATEMENT

Each of the parties to this Agreement is responsible for ensuring that its obligations under

RCRA as amended, are met. Upon granting final authorization by EPA, the State assumes

primary responsibility for implementing the authorized provisions of the RCRA hazardous

waste program within its boundaries except for tribal lands. EPA retains its responsibility to

ensure full and faithful execution of the requirements of RCRA as amended, including direct

implementation of HSWA in the event the State is not authorized to act. EPA also retains

full authority and responsibility for implementation of RCRA on Indian lands in Oregon. The .

State and the EPA agree to maintain a high level of cooperation and coordination between

their respective staffs in a partnership to assure successful and effective administration of

the State program.

Sectlon 3006(g) of HSWA provides that hazardous waste requirements and prohibitions

promulgated pursuant to HSWA are applicable in authorized States at the same time that

they are applicable in unauthorized States with the exception of 3006(f)-Availability ot

Information, which cannot be implemented by EPA in authorized States, and EPA retains

responsibility for the direct implementation of those provisions of HSWA which the State is

not authorized to implement and it is the intention of EPA and the State to coordinate the

implementation of such provisions to the greatest degree possible.

EPA will oversee implementation of the authorized State program in order to ensure full

execution of the requirements of RCRA as amended, to promote national consistency in

implementation of the hazardouswaste program; to allow EPA to report to the President and

Congress on the achievements of the hazardous waste program, and to encourage States

and the EPA to agree on desirable technical support and targets for joint efforts to prevent

and mitigate environmental problems associated with the improper management of

hazardous wastes.: Oversight will be accomplished by EPA through written reporting

requirements, permit overview, compliance and enforcement overview, and periodic review

of the State's programs...

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III. STATE PROGRAM REVIEW

A. General

The Regional Administrator will assess the State administration and enforcement of

the hazardous waste program on a continuing basis for equivalence and consistency

with RCRA, with this Agreement, and with all applicable Federal requirements and

policies and for adequacy of enforcement. This assessmentwill be accomplished "by

EPA review of information submitted by the State in accordance with this Agreement

and the annual State Grant Work Program, permit overview, compliance and

enforcement overview, and annual review of State program activities. The Regional

Administrator may also consider, as part of this regular assessment, written

comments about the State's program administration and enforcement that are"

received from regulated persons, the public, and Federal, State and local agencies.

Copies of any such comments received by the Regional Administrator will be

provided to the State,

To ensure effective program review, the Director agrees to allow EPA access to all

files and other information requested by the Regional Administrator and his or her

designee and deemed necessary by EPA for reviewing State program administration

and enforcement.

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Review of the Department of Environmental Quality files may be scheduled at

quarterly intervals. Program review meetings between the State and EPA will be

scheduled at reasonable intervals not less than annually to review specific operating

procedures and schedules, to resolve problems and to discuss mutual program

concerns. These meetings will be scheduled at least fifteen (15) days in advance C

unless agreed to differently.

B. Identification of Priority Activities

The State and EPA agree to develop, on an annual basis as part of the State grant

work program, criteria for priority activities, including activities regarding handlers of

hazardous waste. These criteria will be based on guidance issued by EPA in the

annual RCRA Implementation Plan (RIP) and otlier guidance documents as may be

appropriate, and will serve to identify those activities which should receive the

highest priority during the grant period. "

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I .•IV. INFORMATION SHARING

A. General

As the national hazardous waste program matures, the respective roles and

responsibilities in this State/Federal partnership will become more clear. As the

respective information needs of the State and EPA evolve, changes to this section of

the Agreement may be appropriate or a separate agreement may be necessary.

During the annual State Grant Work Program, the State and EPA will carefully

examine the following information sharing provisions for needed revision.

8. EPA

1. EPA will keep the State informed of the content and meaning of Federal statutes,

regulations, guidelines, standards, policy decisions, directives. and any other factors

that affect the State Program. EPA agrees to provide this information in a timely

manner. "A timely manner" means EPA will forward relevant information and

materials to the state Within a reasonable period of time. EPA will also provide

general technical guidance to the State upon the state's request, and when

information of mutual interest or concern is developed or acquired by EPA. EPA will

provide at least quarterly, a list and summary of regulatory and policy changes which

," may affect the state program. EPA will share with the State any national reports

developed byEPA from the data submitted through State reporting requirements, or

that would be of interest to the state.

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2. The State and EPA have agreed to a joint permitting process (see Section V.D. of

this agreement). Under the process. the State and EPA have established pollcles;

and procedures by which each will pursue their respective and/or joint '

responsibilities under the RCRA as amended. The State and EPA agree to the

sharing of information as specified under "V.D. Joint Permitting Process" and the

annual State Grant Work Program. Specifically included shall be the"procedures for

sharing and coordinating the exchange of information on, but not limited to, the

following:

a. Part A and Part B Permlt.Appllcations, whether received prior to the

effective date of this Agreement or subsequent to the effective date

.of this Agreement and whether first received by the State or EPA;

b. Information indicating the status of corrective action activities;

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e. Copies of final permits and permit modifications; and

f. Notices of permit denials. c

_ 3. EPA agrees to make available to the State copies of any reports and data resulting

from compliance inspections within sixty (60) days of completion of the inspections.

4. Hazardous waste handler notification identification numbers will be handled in

accordance with the most recent RCRIS·MOU and RCRA grant workplan

agreement.

5. EPA will make available to the State other relevant information as requested which

the State needs to implement its approved program. "Made available" may mean

temporary access in lleu of actual delivery to the state. Information provided to the

'State will be subject to the terms of 40 CFR, Part 2.

C. State

1. The State agrees to inform EPA in advance of any proposedand adopted program

changes which would affect the State's ability to implement the authorized program.

Program changes of concern may include modification of the State's legal authorities

(Le., statutes, regulations and judicial or legislative actions affecting those

authorities), modifications of Memoranda of Agreement or Understanding with other

agencies, and modifications of resource levels (i.e., available or budgeted personnel

and funds). The State recognizes that program revisions must be made in

accordance with the provisions of 40 CFR 271.21 and that until approved by EPA"

revisions are not authorized as RCRA Subtitle C requirements. EPA will review,

comment and advise the State as appropriate on State proposed revisions to the

State regulations within the specified public review time frame.

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2. Annually, through development of the State grant work program, EPA and the State

will agree on the type and frequency of reports the state will make in order for EPAto

maintain oversight of the implementation of the State's authorized program. Such

reporting shall include, but not be limited to, the following:

a. Compliance monitoring arid enforcement information; ,

b. Information indicating the status of the State's permitting, closure,

post closure, and ground-water monitoring activities;

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C.- State decision to grant variances, waivers, and delisting requests

made by hazardous waste handlers; and

d. Various reports designed to accurately describe the status of the

State's authorized program, including Biennial Reports summarizing

the quantity and types of hazardous wastes generated, treated,

stored and disposed in the state.

3. The State agrees to provide EPA with a copy of each proposed variance, waiver, or '

delisting submittal within five (5) days of receipt.

4. The State agrees to provide EPA a copy ofany decisions regarding requests made

by hazardous waste handlers to change their classification (e.g., requests to be

deleted as generators but to retain their facility status) and facility requests to make

on-site changes prior to permit Issuance (e.q., requests to handle additional wastes

not identified on the facility's original notification and RCRA Part A Permit

Application.)

5. The State agrees to provide EPA with copies of reports and data resulting from any

compliance inspection and subsequent enforcement actions, when EPA requests

such copies.

6. The State agrees to provide any pertinent information requested by EPA within a

mutually agreed upon time frame, as necessary for EPA to carry out its oversight

responsibilities. Unless otherwise agreed upon, the above informatlon shall be sent

to the EPA, Region 10. - .

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D. Site Visits

EPA is responsible for maintaining reliable national data on hazardous waste

management. These data are used to report to the President and Congress on the

achievements of the hazardous waste program and to support EPA's regulatory

development efforts. Whenever EPA determines that it needs to obtain certain

information, EPA will normally first seek to gain this information from the State. The

State agrees to supply the Regional Administrator with this information if readily

available and as resources allow. If the State is unable to provide themtormatlcn or

if it is necessary to supplement the State -information, EPA may conduct a special

surveyor perform information collection site visits after notifying the. EPA will share

with the State any national reports developed by EPA as a result of such information

collection.
E. Emergency Situations

.Upon receipt of any information that the handling, storage, treatment, transportation,

or disposal of hazardous waste is endangering human health or the environment, the

party in receipt of such information shall immediately notify by telephone the other

party(ies) to this Agreement of the existence of such situation. The Department of

Environmental Quality shall notify EPA's Oregon Operations office «503) 326-3250).

The EPA shall notify the Department of Environmental Quality's Hazardous Waste

Program «503) 229-5913).

F. Confidentiality

1. Any information obtained or used in the administration' of the State program shall be

available to EPA upon request without restriction. If the information has been

submitted to the State under a claim of confidentiality, the State must submit that

claim to EPA when providing information. Any information obtained from the State

and subject to a claim of confidentiality will be treated in accordance with the

regulations in 40 CFR Part 2 and the provisions of 3006(f) for which the State is

authorized. In no case will the name and address of a permit applicant or permittee

be deemed confidential information by the State or EPA.

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2. EPA agrees to furnish to the State information in its files which is not submitted

under a claim of confidential business information. and which the State needs to

implement its program. Subject to the conditions in 40 CFR Part 2, EPA will furnish

the State information submitted to EPA under a claim of confidentiality which the

.State needs to implement its program. All information EPA agrees to transfer to the

State will be transferred in accordance with the requirements of 40 CFR Part 2. EPA

will notify affected facilities when such confidential business information is sent to

the State.

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V. PERMIT ISSUANCE. ADMINISTRATION AND TRANSITION

A. EPA Peanitting

Upon the effective date of authorization, the State will.begin to administer and

enforce corrective action requirements in the State of Oregon. U.S. EPA Region 10

actions which fall under the federal omnibus authority, and/or which are part of the

federal oversight and overfile authorities will continue to be administered by U:S.

EPA Region 10. In addition, HSWA amendments for which the State has not been

authorized will continue to be administered and enforced by EPA Region 10.

Permits issued jointly by EPA and Oregon which contain language in the preamble

allowing for the automatic transfer of the permit upon authorization of the State for

corrective action, will transfer automatically to Oregon on the effective dateof

authoriZation. No permit condition for.which Oreqon.is Rot yet authorized will

autcrnatically transfer.

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C.

EPA may comment on any permit application or draft permit. EPA will abide by the

provisions of 40 CFR 271.19 (b) through (t). .

State Permitting

The State is responsible for expeditiously drafting, circulating for applicant review

and comment, issuing, modifying, reissuing or denying and terminating RCRA

permits for those hazardous waste treatment, storage and disposal facilities

contained in the authorized provisions of the State's program, and shall do so in a

manner consistent with RCRA as amended by the HSWA, with this Agreement, with

all applicable Federal requirements. The State agrees to issue, modify and reissue,

or deny all permits contained in the authorized portions of the State's program in

accordance with Oregon Revised Statutes (ORS) 466 and to include as permit

conditions all applicable provisions of OAR 340, Divisions 100 through 120. This

agreement also applies to permits issued after final.authorization but for which the

processing may have begun before final authorization. The State agrees not to use

its broader waiver, variance or exemption authorities so that they will result in the

imposition of any requirement less stringent than comparable Federal program

requirements.

Joint Permitting.

Pursuant to Section 3006(g)(1) of RCRA and in accordance with HSWA, EPA has

the authority to issue or deny permits (or those portions of permits) to facilities in

Oregon for the requirements and prohibitions in or promulgated pursuant to HSWA

until the State's program receives authorization for those portions of the program.

Oregon shall issue permits for those provisions of RCRA, as amended, for which

Oregon has been authorized: EPA shall issue permit provisions for which Oregon is

not yet authorized, excluding non-HSWA provisions; EPA and Oregon shall jointly

sign such permits. Upon granting of final authorization, EPA and DEQ will notify all

permittees that the Department of Environmental Quality will have prime

responsibility for the future administration and enforcement of said joint permits. The

work program pertaining to permitting will be reviewed at least annually. The duties

and responsibilities of EPA and the State for joint permitting shall also be specified in

the annual State Grant Work Proqrarn.

D. COMPLIANCE WITH 40 CFR 270.3

Authorization of the State does not relieve EPA of its responsibility for compliance

with other Federal laws that may apply to the issuance of permits (see 40 CFR

270.3). EPA and Oregon agree to coordinate to the greatest degree possible any

permit actions as specified in 40 CFR 270.3:;> . .. ..... . . //

VI. COMPLIANCE MONITORING AND ENFORCEMENT ...

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Nothing in this Agreement shall restrict EPA's right to inspect any hazardous waste

generator, transporter or facility or bring enforcement action against any person

believed to be in violation of the authorized State or Federal hazardous waste

program or believed to have a release of hazardous waste or hazardous constituent.

Before conducting an inspection of a generator, transporter, or facility, EPA will give

the State as least seven days notice of intent to inspect in accordance with 40 CFR

271.8 (b) (3) (i).

Nothing in this agreement shall, or shall be construed to, constitute a valid defense

by regulated parties in violation of any State or Federal environmental statute,

regulation or permit.

The frequency of EPA oversight and tralninqinspections will be specified in the

annual State Grant Work Program. On an annual basis, EPA will negotiate with the

State the percentage of the State's compliance inspections on which EPA will

accompany the State. '

The EPA may take enforcement action against any person determined to be in

violation of RCRA in accordance with Section 3008(a)(2). EPA may take

enforcement action upon determining that the State has not taken timely and

appropriate enforcement action or upon request by the State. Prior to issuing a

compliance order under Section 3008(a), EPA will give notice to the State. 'EPA

retains its rights to issue orders and bring actions under Sections 3008(a) and (h),

3013 and 7003 of RCRA and any other applicable Federal statute. '

After notice to the State, EPA may take action under Section 3008 of RCRA against

a holder of a State-issued permit on the grounds that the permittee is not complying

with a condition of that permit, In addition, EPA may take action under Section 3008

of RCRA against a holder of a State-issued permit on the grounds that the permittee

is not complying with a condition that the Regional Administrator, in commenting on

that permit application or draft permit, stated was necessary to implement approved

State program requirements; whether 'or not thatcondition was included in the final

permit.

B.

The State agrees to carry out a timely and effective program for monitoring the

compliance by generators, transporters, and facilities, including federal facilities with

applicable program requirements (see 40 CFR 271.15). As part of this program, the

State will conduct compliance inspections to assess compliance with generator and

transporter standards (including manifest requirements), facility standards, permit

requirements, compliance schedules, and all citt1~r program requirements.

Compliance monitoring activities and priorities will be specified in the annual State

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(. Grant Work Program and shall be consistent with all applicable Federal

requirements.

The State agrees to take timely and appropriate enforcement action against persons

in violation of generator and transporter standards (including manifest requirements),

facility stand-ards, permit requirements, compliance schedules, and other program

requirements, including violations detected by State or Federal compliance

inspections. The State will maintain procedures for receiving and ensuring proper

consideration of information about violations submitted by the public. The State

agrees to retain all records for at least three years unless there is an enforcement

action pending. In that case all records will be retained until such action is resolved ..

VII. AVAILABILITY OF INFORMATION

A. General

Section 3006(f) of .RCRA provides that States may be authorized by the

Administrator under this section if the State program provides for the public

availability of information obtained by the State regarding facilities and sites for

treatment, storage and disposal of hazardous wastes; and that such information is

available to the public in substantially the same manner, and to the same degree, as

would be the case if the Administrator of EPA were carrying out he provision of this

subtitle in the State. The DEQ received authorization from EPA on May 29,1990 to

implement Section 3006(f) in lieu of the EPA.

B. Requests for Information

1. . Pursuant to the Federal Freedom of Information Act (FOIA), 5 U.S.C.

552(a)(2), Oregon Revised Statutes, and OAR 340-100 to 120, the State

agrees to make certain materials routinely available without a forma.' FOrA

request. Examples of these materials are final opinions or orders in case

adjudlcation, State regulations, statements of Agency policy, and

administrative staff manuals affecting the public. In addition, records

prepared for routine public distribution will also be made available.

Examples of such records are press releases, copies ofspeeches,

pamphlets, and educational material.

2. The State agency agrees to make reasonable efforts to assist a requester in

identifying records being sought, and to help the requester fonnulate his or

her request.

3. If a request forinfonnation is denied, the State agrees to provide the

requester the basis for the denial and to notify the requester of State judicial

(Of, if they exist, administrative) proceduces, includ.ing statutes of limitation-.

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4. The State agrees to make the fullest possible disclosure of records to the

public, subject to any of-the exemptions under the Federal FOIA recoqnized

by the State, and in accordance with the EPA authorized and equivalent

Statutes and regulations of the State .of Oregon ..

5. A reduction or waiver of fees will be considered in connection with each

request from a representative of the press or other communication medium,

or from a public interest group. The State agrees to reduce or waive the fee

if it determines that a reduction or waiver of the fee is in the best interest

because furnishing the information can be considered as primarily benefiting

the general public.

C. Confidentiality of Business Information

If a claim of confidentiality is asserted and cannot be resolved in the time period

provided for an agency response.to a request, the State agrees to notify the

requester of the confidentiality claim within the maximum 20-day time limit provided

for an agency response. In addition, the requester will be told that the,request was

denied in order to resolve the business confidentiality claim.

D. Oversight

1. The State agrees to keep a log of denials of requests for information (or a file

containing copies of denial letters sent to requesters) which will be made

available to EPA during the State review.

.2. The State agrees to keep EPA fully informed of any proposed modifications

to its basic statutory or regulatory authority,its forms, procedures. or

priorities, as applied to section 3006(f).

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BY:

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u.S. ENVIRONMENTAL PROTECTION.AGENCY

REGION 10

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