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Attachment D

Memorandum, Rule Interpretation and Policy Determination

May 3,1993

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State of Oregon

Department of Environmental Quality Memorandum

Date: May 3, 1993

To:

From:

Subject:

Hazardous Waste/Toxics Use Reduction Staff

Roy W. Brower, Manager, Hazardous Waste Policy and Program Development

Rule Interpretations and Policy Determinations

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The purpose of this memorandum is to establish a general procedure and protocol for rule

interpretations, policy development and resolution of policy inconsistencies in the hazardous waste or

toxics use reduction program. This procedure was developed during discussions with the other

HWITUR managers, Stephanie and Tom. There are generally four levels of graduated policy

determinations (from simple to complex):

o Rule or policy clarification

o Rule or policy interpretation

o Development of new/interim policy or guidance

o Development of new rule

THE PROBLEM

Under our current organization there is still confusion about the roles and responsibilities of the

regions and headquarters as it relates to policy, interpretation and rules. This situation will only get

worse as we reorganize. This guidance is intended to clarify responsibility for various aspects of

policy and rule clarification/development for the hazardous waste/toxies use reduction program under

the current organization and as we transition into the new organization. This guidance is intended to

improve consistency, procedure, implementation and distribution of policy. .

GENERAL RESPONSmILITY FOR POLICY DETERMINATION:

It is the responsibility of each individual to fully research policy and regulatory questions to the extent

possible. The Hazardous WasteIToxics Use Reduction Regulatory Handbook includes.all known

statutes, rules, rule interpretations, memoranda of agreement with other .agencies, summary of rule ",;:.

adoptions and authorization status, and enforcement guidance directly related to the state program.

The Handbook will be updated periodically with relevant policy/rule changes.' 'Each regional office

and headquarters has a set of EPA's RCRA Permit Policy :CompeiJ.dium'·(OSWER Directives

System). Headquarters and the EPA Operations Office maintains a set of background documents

preambles and FederalRegisters. Each regional office receives periodic updates of this information

via the regional manager. Each office also receives' a Copy of the COde of Federal Regulations (40

.CFR 100 - 299). Each office also has copies of past and current Applications for Authorization of

, Hazardous Waste Program to EPA. Generally, these documents provide all necessary background

material to research a rule. .' ;-. .', ' , ,'S :~ <:- :.' z

The headquarters office of Hazardous Waste Policy and Program Development (HWPPD) is available

to provide material and information requested by anyone on staff. HWPPD is also available to :::.,' ' .

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Memo To: Hazardous Waste/Toxies Use Reduction Managers

May 3, 1993

Page 2

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provide clarification, research assistance, facilitate resolution of policy differences, and develop new

policies/rules deemed necessary under the following scenarios. Discussed below are the procedures

and protocol for each of these situations:

RULE OR POLICY CLARIFICATIONS:

Scenario: Rule or policy clarifications are generally handled through informal contact among staff

when there is a relative misunderstanding on the agency's position on a rule. It may include simply

referencing someone to a published guidance document, or explaining the situation by phone or e-mail

(e.g. use of the HWINSPECT:HSW e-mail address). These are usually straight-forward and

objectively answered questions that do not require a formal position or statement.

Protocol: Rule or policy clarifications are generally answered within a regional or headquarters

office by peer staff or elevated to a supervisor within that office. Occasionally a clarification raises

issues that require a more formal determination that could move it to one of the other categories.

RULE OR POLICY INTERPRETATION:

Scenario: Rule or policy interpretations are created by situations where no guidance exists or new

issues have been raised because of different situations. Rule interpretations may be general or

specific to a site. An interpretation is intended to provide a formal explanation of how a rule is to be

interpreted but does not establish or change policy. It is a formal clarification of an existing rule or

policy.

Protocol: Requests for formal rule interpretations should be made by the appropriate manager in

writing to the manager of HWPPD. The written request should include a preferred recommendation;

when possible, on how the situation should be resolved and any supporting documentation.

A draft written response will be prepared by the HWPPD section, upon consultation with relevant

regional and headquarters staff. The draft written response will be distributed to each appropriate

HWITUR manager for review and comment before finalizing the interpretation. A specific return

date will be specified in the memo. Provided there is general consensus, the rule interpretation will

be finalized, signed by the HWPPD manager, and distributed.in the next update to the Hazardous

Waste/Toxics Use Reduction Regulatory Handbook.

If there is disagreement over the rule interpretation, a general course of resolution will include the

'following hierarchy: .

-informal discussion aimed at resolving the disagreements;

-discussion/resolution at a Quarterly Meeting (optional);

-discussion/resolution at a HWITUR Managers Meeting; or

-elevating the issue to headquarter and regional Division Administrators for final

resolution.

If a rule interpretation must involve two or more DA's in resolving the disagreement. the finalized
Memo To: Hazardous Waste/Toxies Use Reduction Managers

May 3, 1993

Page 3

rule interpretation will be signed by the headquarter and regional DA's, and distributed in the next

update to the Regulatory Handbook.

DEVELOPMENT OF NEWIINTERIM POLICY OR GUIDANCE:

Scenario: Development of new/interim policy or guidance is used to establish new policy or

guidance on how to handle an issue or deal with a new situation. Policy should be reserved for truly

controversial and difficult situations. Guidance is intended to provide staff specific instructions on the

correct way to deal with a situation, where a rule interpretation is not appropriate. Development of a

new/interim policy or guidance may result from a regulatory interpretation or an 'attempt to address a

situation raised by enforcement staff, an inspection, or a hearings report. In general, the development

of new policy or guidance should be rare and should lead to eventual rulemaking.

Protocol: New/interim policy or guidance is generally developed by the HWPPD section as a result

of unresolved rule interpretations or to address an issue raised in a site or enforcement-specific

situation. All policy and guidance must be signed by headquarter and regional DA's and distributed

in the next update to the Regulatory Handbook. Policy changes that affect a sector of the regulated

community must be communicated to that sector via factsheet or letter.

DEvELOPMENT OF NEW RULE:

Scenario: Development of new rules is the most formal process available and is generally facilitated

by the HWPPD section, with input and involvement from all affected parts of the agency. Rules.

should be established to formally institutionalize policies, to change the way the program regulates its

sources, or to adopt new federal rules.

Protocol: New rules or rule amendments are developed by HWPPD to formally institutionalize

policies, clarify issues raised by enforcement actions and decisions, to improve/simplify the

implementation of the regulations in the field, or to adopt new federal rules. All state hazardous

waste rules must be equivalent and consistent with EPA rules. Rulemaking will be conducted as one

or two rulemakings per year, unless an emergency rule is necessary. The rulemaking process will

included representatives of agency who would be affected by the rulemaking. The rulemaking

process will follow procedure outlined for all EQC rulemakings.

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cc: Stephanie Hallock

Tom Bispham

Steve Greenwood

Pete Dalke

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