Memorandum of Agreement September 2010 – Page 1

MEMORANDUM OF AGREEMENT BETWEEN

THE STATE OF NEW MEXICO 

AND 

THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 6 

(Replaces the MOA of March 5, 2009) 

I. GENERAL 

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

and procedures pursuant to 40 CFR 271.8 for the State of New Mexico’s Hazardous Waste Program 

(hereinafter "State Program") authorized under Section 3006 of the Resource Conservation and 

Recovery Act (hereinafter "RCRA or "the Act") of 1976 (42 USC 6901 et seq.), as amended (Public 

laws 94-580, 96-482, 98-616), and the United States Environmental Protection Agency (hereinafter 

EPA) Regional Office for Region 6. This Agreement further sets forth the manner in which the State 

and EPA will coordinate in the State's administration of the authorized State program and, pending State 

authorization, EPA's administration of the provisions of the Hazardous and Solid Waste Amendments of 

1984 (HSWA). For purposes of this Agreement, references to "RCRA" include HSWA (P.L. 98-616). 

This Agreement is entered into by the Secretary of the New Mexico Environment Department 

(hereinafter "Secretary" or "the State") and the Regional Administrator, EPA Region 6 (hereinafter 

"Regional Administrator" or "EPA"). 

For administrative purposes, the New Mexico Environment Department (NMED) will serve as 

lead agency to simplify coordination and communication between the State and EPA. 

Nothing in this Agreement shall be construed to restrict in any way EPA's authority to fulfill its 

oversight and enforcement responsibilities and authority under RCRA. Nothing in this Agreement 

shall be construed to limit in any way the State’s authority to enforce hazardous waste regulations 

developed under the New Mexico Hazardous Waste Act. Nothing in this Agreement shall be construed 

to contravene any provision of 40 CFR Part 271.21 and 40 CFR Part 271.22. 
Memorandum of Agreement September 2010 – Page 2

The parties will review the Agreement jointly at least once a year (and other times as 

appropriate) and during preparation of the annual State Grant Work Program (hereinafter 

“Grant”), in connection with grant funding under section 3011 of RCRA. 

This Agreement amends the Agreement which was effective as of March 5, 2009 and all prior 

agreements dated, July 25, 2007, July 30, 2001, September 23, 1996, December 18, 1995, January 16, 

1992, September 17, 1989, and September 16, 1988. This Agreement may be modified upon the 

initiative of either party in order to ensure consistency with State program modifications made or for 

any other purpose mutually agreed upon. Any revisions or modifications to this Agreement must be 

in writing and must be signed by the State and the Regional Administrator. 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 supersedes all previous MOAs that were executed before the date of this 

document and any related amendments or revisions. 

This Agreement shall be executed by the State and the Regional Administrator and shall 

become effective upon the signature of both parties to this agreement. 

This Agreement does not create any right or benefit, substantive or procedural, enforceable by 

law or equity, by persons who are not party to this agreement, against the State or EPA, their officers or 

employees, or any other person. This MOA does not direct or apply to any person outside of the State 

and EPA. 

II. POLICY STATEMENT 

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

are met, including direct implementation of HSWA in the event that the State is not authorized to act. 

The State retains its responsibility to ensure full and faithful execution of the requirements of the New 

Mexico Hazardous Waste Management Act (HWA), NMSA 1978, §§ 74-4-1 to 74-4-17. Upon 

granting of final authorization by EPA, the State assumes primary responsibility for implementing the 

authorized provisions of the RCRA hazardous waste program within its geographic boundaries, except 

in Indian country. EPA retains its responsibility to ensure full and faithful execution of the 

requirements of RCRA. The State and the Regional Administrator 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. 

Section 3006(g) of RCRA 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 Section 3006(f), Availability of Information that 

cannot be implemented by EPA in authorized States. While it is the responsibility of the State to 

implement the provisions of HSWA for which it is authorized, it is the intention of EPA and the State to 
Memorandum of Agreement September 2010 – Page 3

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, to promote national consistency in the hazardous waste 

program, and to allow EPA to report to the President and Congress on the achievements of the 

hazardous waste program, and to encourage States and 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 through written reporting 

requirements, permit program overview, compliance and enforcement overview, and annual review of 

the State program. 

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, this Agreement, and 

all applicable federal requirements and policies, and for adequacy of enforcement. This assessment will 

be accomplished by EPA review or information submitted by the State in accordance with this 

Agreement and the State Grant Work Program, permit program overview, compliance and enforcement 

overview, and annual review of State program activities. 

Once every three years, or at another mutually agreed-to frequency, the Regional Administrator 

will also conduct an Enforcement Framework Review of the NMED’s programs. These Framework 

Reviews will be integrated into and informed by the ongoing program assessment activities described 

above. EPA will provide the results of the Framework Reviews to the NMED. 

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 State agrees to allow EPA access to all files and other 

information requested by the Regional Administrator or his or her designee and deemed necessary by 

EPA for reviewing State program administration and enforcement. 

Review of the New Mexico Environment Department files may be scheduled at quarterly 

intervals. Program review meetings between the State and the Regional Administrator or their 

assignees 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 days in advance unless mutually agreed to 

differently. EPA shall prepare tentative agendas for said meetings. 
Memorandum of Agreement September 2010 – Page 4

B. IDENTIFICATION OF PRIORITIES ACTIVITIES 

The State and EPA agree to develop specific priorities on an annual basis as a part of the State 

Grant Work Program. Criteria for determining priority activities include but are not limited to activities 

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

Office of the Chief Financial Officer’s technical guidance on National Program Manager Guidance and 

Annual Commitment Process, the Environmental Performance Partnership Agreement, and other 

guidance documents as may be appropriate, and will serve to identify those activities that should receive 

the highest priority during the grant period. 

Examples of activities that will be considered high priority will include, but not be limited to, 

facilities to be inspected, facilities to be permitted, and enforcement actions against facilities with 

known or suspected ground-water contamination. Facilities to be permitted will be identified in the 

State Permitting Strategy submitted to the EPA by the State. 

IV. INFORMATION SHARING

A. GENERAL 

This section of the Agreement covers information sharing for various elements of the RCRA 

program. All sharing of information related to the State’s program between the State and EPA shall be 

in accordance with the requirements of 40 CFR part 2 (Public Information), 40 CFR 271.17 (Sharing of 

information). The State must comply with the requirements of the New Mexico Inspection of Public 

Records Act, NMSA 1978, §§ 14-2-1 et seq. 

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

Agreement may be appropriate. During the annual review of this Agreement, the State and the 

Regional Administrator will carefully examine the following information-sharing provisions for 

needed revision. 

B. 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 will share with the State any general technical guidance. EPA will share with the 

State any national reports developed by EPA from the data submitted through State reporting 

requirements. 

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

Under this process the State and EPA have established policies and procedures by which each 

will pursue their respective and/or joint responsibilities under RCRA/HSWA. 
Memorandum of Agreement September 2010 – Page 5

The State and EPA agree to share information as specified under Section “V.D. 

Permitting Process” and the Annual State Grant Work Program. Specifically included shall 

be the procedures for sharing and coordinating the exchange of information on the 

following: 

a. Part A and Part B permit applications 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. Such other information necessary to support the foregoing information; 

c. Copies of draft permits, proposed permit modifications, and public notices; 

d. Copies of final permits and permit modifications; and Notices of Permit denials. 

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

compliance inspections within sixty days of completion of the inspections. 

4 EPA agrees to provide the State with notification information from EPA Form 8700-12 obtained 

prior to the effective date of this Agreement if such information has not already been provided to 

the State. The Secretary and EPA shall agree on the format in which the information will be 

provided and the information will be provided within thirty days of the effective date of this 

Agreement. The State will also forward, on a monthly basis, notification information (including 

newly assigned EPA identification numbers) submitted by persons in the State who file such 

forms after the effective date of this Agreement. This information will be submitted to the U.S. 

EPA Region 6 at the end of the each month for the proceeding month. 

5 The State agrees to assign EPA identification number to generators and transporters and to 

owners and operators of hazardous waste treatment, storage, and disposal facilities submitting 

notifications after the effective date of this Agreement. 

6 EPA will make available to the State other relevant information as requested that the State needs 

to implement its approved program. Information provided to the State will be subject to the 

terms of 40 CFR Part 2, Public Information. 

C. STATE 

1. The State agrees to inform the Regional Administrator in advance of any proposed changes that 

would affect the State’s ability to implement the authorized program. Program changes of 

concern include modification of the State’s legal authorities (e.g., statutes, regulations and judicial 

or legislative actions affecting those authorities), modifications of Memorandum of Agreement 

and Memorandum of Understanding with other agencies, and modification or 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. Nothing in this Agreement shall 

be construed to limit in any way the State’s authority under the New Mexico Hazardous 

Waste Act. Unless otherwise agreed upon, the information provided below shall be sent to the 

U.S. EPA Region 6, Multimedia Planning and Permitting Division (6PD), Chief, Hazardous 
Memorandum of Agreement September 2010 – Page 6

Waste Division, 1445 Ross Avenue, Suite 1200, Dallas, Texas, 75202-2733. 

2 The State agrees to provide any pertinent public information requested by the Regional 

Administrator or his or her designee within a mutually agreed upon time frame, as necessary for 

EPA to carry out its oversight responsibilities.

3. Through the development of the State Grant Work Program, annually, EPA and the State will 

agree on the type and frequency of reports the State will make in order for EPA to 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 and enforcement information; 

b. Information indicating the status of the State’s permitting, closure, post-closure, and 

groundwater monitoring and corrective action activities will be identified in the State 

Permitting Strategy; 

c. Various reports designed to accurately describe the status of the State’s authorized 

program, including biennial reports summarizing the quantities and types of hazardous 

waste generated, transported, treated, stored and disposed in the State; and 

d. State decisions to grant variances and waiver requests made by hazardous waste 

handlers. 

4 The State agrees to provide EPA with a copy of any decisions regarding requests made by

hazardous waste handlers to change their classifications (e.g., requests to be deleted as 

generators but to retain facility status) and facility requests to make on-site changes prior to 

permit issuance (e.g., 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 on 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 the Regional Administrator 

or his or her designee within a mutually agreed upon time frame, as necessary for EPA to carry

out its oversight responsibilities. 

7 The State agrees to provide EPA with a copy of each State decision regarding variances and 

waivers at the time such requests are granted.

D. SITE VISITS 

EPA is responsible for maintaining reliable national data on hazardous waste management. This 

data is 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 
Memorandum of Agreement September 2010 – Page 7

to obtain certain information, EPA will first seek to gain this information from the States. The State of 

New Mexico agrees to supply the Regional Administrator with this information if readily available and 

as resources allow. If the State is unable to provide the information or if it is necessary to supplement 

the State information, EPA may conduct a special survey or perform information collection site visits 

after notifying the State. 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 presents an imminent and substantial endangerment to 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. EPA shall contact Bureau Chief of the 

Hazardous Waste Bureau at (505) 476-6000. NMED shall contact EPA’s Associate Director of the 

Multimedia Planning and Permitting Division at (214) 6658022. 

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 a State and subject to a claim of confidentiality will be treated in 

accordance with the regulations in 40 CFR Part 2, Public Information. The State must comply

with the requirements of the New Mexico Inspection of Public Records Act, NMSA 1978, §§ 

14-2-1 et seq. 

2 EPA agrees to furnish to the State information in its files which is not submitted under a claim 

of confidentiality and which the State needs to implement its program. Subject to the 

conditions in 40 CFR Part 2 (including authorization to receive confidential information 

pursuant to 40 CFR 2.305(h)), EPA will furnish to 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 information is 

sent to the State. The State will handle such information consistent with its authorized 

program. 

V. PERMIT ISSUANCE

A. EPA PERMITTING 

Upon State authorization, EPA will suspend issuance of new federal permits for hazardous waste 

treatment, storage, and disposal facilities and permits for HSWA requirements. 

Whenever EPA adds permitting standards for processes not currently covered by federal 
Memorandum of Agreement September 2010 – Page 8

regulations, EPA will process and enforce RCRA permits, or portions of permits, in the State in the 

new area until the State receives final authorization for them. At the time the State program is 

authorized in the new area, EPA will suspend issuance of such federal permits, or portions of permits, 

in the State. EPA will also transfer any pending permit applications, completed permit or pertinent file 

information to the State within thirty days of the approval of the State program in conformance with 

the conditions of this Agreement. 

The State and EPA have agreed to a permitting process (see section V.D. of this 

Agreement) and enforcement of RCRA/HSWA permits. 

B. EPA REVIEW OF STATE PERMITS 

While EPA may comment on any permit application or draft permit, EPA's overview function 

will focus primarily on those facilities identified by the State and EPA in the State Permitting Strategy, 

the EPA Region 6 RCRA State Hazardous Waste Program Oversight Process (“Oversight Document”), 

and the State’s Program Description. In addition, EPA will conduct periodic reviews of the State 

RCRA permitting program. The review process will be conducted in accordance with the RCRA 

Permitting Program Review Document, and will focus on, but not be limited to: program authority; 

staffing levels; permit issuance; permitting process; permit reviews; status of expired permits; status of 

interim status units; and public participation. 

EPA may comment in writing on any draft permit or proposed permit modification, whether or 

not EPA commented on the permit application, within forty-five days of receipt. EPA’s comment 

period should be tied to the State’s public participation process set for into the New Mexico Hazardous 

Waste Management Regulations, 20.4.1.901 NMAC. The State may or may not agree with these 

comments. If the State agrees with the comments, they may be incorporated into the document. Where 

EPA indicates in a comment that issuance, modification, reissuance, termination or denial of the permit 

would be inconsistent with the approved State program, EPA shall include in the comment: 

a. a statement of the reasons for the comment (including the section of the State law or 

regulations that supports the comment), and 

b. the actions that should be taken by the State in order to address the comment (including the 

conditions which the permit would include if it were issued by EPA). 

EPA shall withdraw such comment when satisfied that the State had met or addressed its 

concern. 

Under section 3008(a)(3) of RCRA, EPA may terminate a State-issued permit in accordance with 

the procedures of 40 CFR Part 124, Subpart E, or bring an enforcement action in accordance with the 

procedures of 40 CFR Part 22 in the case of a violation of a State program requirement. Exercising 

these authorities, EPA will observe the conditions established in 40 CFR 271.19(e). 
Memorandum of Agreement September 2010 – Page 9

C. STATE PERMITTING 

The State is responsible for expeditiously drafting, circulating for public review and comment, 

issuing, modifying, suspending, revoking hazardous waste permits issued under State law for those 

hazardous waste treatment, storage and disposal facilities subject to the authorized provisions of the 

State's program and shall do so in a manner consistent with RCRA, as amended by HSWA, this 

Agreement, the Oversight Document, all applicable federal requirements, and the State's Program 

Description. 

The State agrees to abide by the procedures for holding a public hearing set forth in the New 

Mexico Hazardous Waste Act (NMSA 1978 §74-4-1 and 20.4.1.901 NMAC). No ruling shall be made 

on a permit issuance or denial without the opportunity for a public hearing, at which all interested 

persons shall be given reasonable opportunity to submit significant data, views or arguments orally or in 

writing and to examine witnesses testifying at the public hearing. A public hearing shall be held under 

the following circumstances: (1) the Secretary issues a Notice of Intent to deny, and a timely request for 

a public hearing is received from the applicant; 

(2) the Secretary issues a Draft Permit, a timely request for a public hearing is received from any person 

opposed to granting of the permit, and such person does not subsequently withdraw the request or the 

Secretary determines no later than five (5) days following the end of a comment period that a public 

hearing should be notwithstanding the absence of a timely request for public hearing, or as otherwise 

provided under NMSA 1978 §74-4 et seq., 20.1.4 NMAC, and 20.4.1 NMAC. The NMED, acting in 

conjunction with the applicant, will respond to the request in an attempt to resolve the issues giving rise 

to the opposition. If such issues are resolved to the satisfaction of the opponent, the opponent may

withdraw the request for public hearing. 

The State agrees to issue, modify suspend or revoke all permits in accordance with NMSA 1978, 

§74-4-4.2 with 20.4.1.901 NMAC, and to include as permit conditions all applicable provisions required 

under 20.4.1 NMAC. This Agreement also applies to permits issued after final authorization, but for 

which processing may have begun before final authorization. 

The State agrees that in order to carry out permitting procedures consistent with the 

requirement of 40 CFR Part 124 that the individuals and agencies entitled to receive public notice 

of any permit actions under 20.4.1.901.C shall also include as applicable: 

1 Any other agency which the State knows has issued or is required to issue a RCRA, UIC, PSD, 

NPDES or 404 permit for the same facility or activity (including EPA when the draft permit is 

prepared by the State); 

2 Federal and State agencies with jurisdiction over fish, shell fish and wildlife resources and over 

coastal zone management plans, the Advisory Counsel on Historic Preservation, State Historic 

Preservation Officers, and other appropriate government authorities including any affected 

States; 

3 Persons on a mailing list developed by:
Memorandum of Agreement September 2010 – Page 10

a. Including those who request in writing to be on the list; 

b. Soliciting person for “area” lists from participants in past permit proceedings in that area; 

and 

c. Notifying the public of the opportunity to be put on the mailing list through periodic 

publication in the public press and in such publications as Regional and State funded 

newsletters, environmental bulletins, State law journals, or by other means. (The State 

may update the mailing list from time to time by requesting written indication of 

continued interest from those listed. The State may delete from the list the name of any

person who fails to respond to such a request.) 

4 To any unit of local government having jurisdiction over the area where the facility is proposed 

to be located. 

5 To each State agency having any authority under State law with respect to construction of 

operations of such a facility. 

The State also agrees that in addition to the general public notice described in the Hazardous 

Waste Management Regulation, 20.4.1.901.C NMAC, those persons identified in paragraphs 1 and 2 

above shall be notified of the location of the permit application (if any), and draft permit (if any), for 

their review. 

The State will issue all RCRA permits in the State, except for the portions of permits dealing with 

provisions under HSWA for which the State has not yet been authorized. However, EPA agrees to 

provide technical and administrative assistance as necessary. In regard to EPA permit issuance 

proceedings pending at the time of the State’s final authorization to administer the HSWA provisions, 

EPA will transfer and provide information, applications, and assistance to the NMED in accordance 

with requests by the NMED 

The State agrees that any compliance schedule contained in permits it issues will require 

compliance with applicable standards as soon as possible. 

The State agrees to consider all comments EPA makes on permit applications and draft permits. 

The State will satisfy or refute EPA's concerns on a particular permit application, proposed permit 

modification, or draft permit in writing in accordance with 20.4.1.901 NMAC. 

D. PERMITTING AGREEMENT 

Pursuant to section 3006(g)(1), and in accordance with RCRA, EPA has the authority to issue or 

deny permits, or those portions of permits, to facilities in New Mexico for the requirements and 

prohibitions in or stemming from HSWA for which the State has not been authorized, or until the State 

amends its program to reflect those requirements and prohibitions, and receives authorization. A 

Workshare Agreement between the NMED and EPA Region 6 will be negotiated, as necessary, in 

conjunction with the State Grant Work Program to cover areas that the State is not authorized. 
Memorandum of Agreement September 2010 – Page 11

EPA and New Mexico hereby establish this joint permitting process for the issuance of RCRA 

permits in New Mexico. This permitting process is established in accordance with section 3006(c)(3) of 

RCRA. Both the administrative details of the joint permitting process and the duties and responsibilities 

of EPA and the NMED for joint permitting shall be incorporated into the Oversight Document. The 

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

Document. 

The details of the permitting process shall be reviewed and revised as often as necessary, but no 

less often than annually to assure its continued appropriateness. 

The Oversight Document shall be amended to reflect any status change in authorization. This 

Agreement has been amended to address the State’s authorization for the provision of HSWA.

VI. PERMIT ADMINISTRATION

A. EPA 

EPA will administer the RCRA permits or portions of permits it has issued to facilities in New 

Mexico until the State is authorized for those portions of the program. EPA will be responsible for 

enforcing the terms and conditions of the federal permits while they remain in force. Based on the 

joint permit issuing authority of the permits issued in the State, when the State is authorized for 

specific portions of the program, arrangements will be made for notifications of permittees and for 

public notice of the State administration of those portions of the permits.

B. STATE 

The State agrees to review all hazardous waste permits which were issued under State law prior to 

the effective date of this Agreement and to modify, suspend or revoke such permits as necessary to 

require compliance with the amended State Program. The State agrees to administer the permits 

consistent with the authorized program and to inform the permittees of that authorization and that EPA 

will no longer be responsible for those portions of the permits. 

VII. COMPLIANCE MONITORING AND ENFORCEMENT 

A. EPA 

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 State or federal hazardous waste program or that EPA has cause to believe a 

release of hazardous waste or constituent. Before conducting an inspection of a generator, 

transporter or facility, the Regional Administrator will normally give the State at least seven days 
Memorandum of Agreement September 2010 – Page 12

notice of the intent to inspect in accordance with 40 CFR 271.8(b)(3)(i). In case of an imminent 

and substantial endangerment to human health and the environment, the Regional Administrator 

may shorten or waive the notice period, but the Regional Administrator will make every effort to 

notify the NMED as soon as possible of any EPA action in the State. 

The frequency of EPA oversight and training inspections will be specified in the annual State 

Grant Work Program. EPA will negotiate on an annual basis with the State the number or percentage 

of the State's compliance inspections on which EPA will accompany the State. 

EPA may take enforcement action against any person determined to be in violation of RCRA in 

accordance with section 3008(a)(2). In the case of a violation of any requirement of section 3008 

where such violation occurs in a the State which is authorized to carry out a hazardous waste 

program under section 6926 of this title, the Regional Administrator shall give notice to the 

State in which such violation has occurred prior to issuing an order or commencing a civil 

action under section 3008(a). EPA also maintains authority to issue orders and bring actions under 

sections 3008, 3013 and 7003 of RCRA and any other applicable federal statute. 

After notice to the State, EPA may take action under section 3008(a)(3) 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 Stateissued 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, states was necessary to 

implement approved State program requirements, whether or not that condition was included in the final 

permit. 

B. STATE 

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

generators, transporters, and facilities with applicable program requirements (see 40 CFR 271.15). As 

part of this program, the State will conduct inspections to assess compliance with generator and 

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

compliance schedules, and all other program requirements. State Grant Work Program and shall be 

consistent with all applicable federal requirements and with the State's Program Description. 

The State agrees to take timely and appropriate enforcement action. The State will 

maintain procedures for receiving and ensuring proper consideration of information about 

violations submitted by the public. The NMED agrees to provide EPA with copies of reports or 

data resulting from any compliance inspection and subsequent enforcement actions when EPA 

requests such copies. The State agrees to retain all records for at least three years unless there is 

an enforcement action pending. In the case of a pending enforcement action, all records will be 

retained until such action is resolved. 

VIII. AVAILABILITY OF INFORMATION
Memorandum of Agreement September 2010 – Page 13

A. GENERAL 

Section 3006(f) of RCRA requires an authorized State to provide for the public availability of 

information obtained by the State regarding facilities and sites for treatment, storage and disposal of 

hazardous waste. Such information must be available to the public in substantially the same manner as, 

and to the same degree as that is available under federal law. 

B. REQUEST FOR INFORMATION 

1 Pursuant to the federal Freedom of Information Act, 5 U.S.C. 552(a)(2) and the New Mexico 

Inspection of Public Records Act, NMSA 1978, §§ 14-2-1 et seq., the State agrees to make 

certain materials available without a formal information request. Examples of these materials 

are final opinions or orders in case adjudication, 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 of speeches, pamphlets, and educational materials. 

2 The State Agency agrees to make reasonable efforts to assist a requestor in identifying records 

being sought, and to help the requestor formulate his or her request. 

3 If a request for information is denied, the State agrees to provide the requestor the basis for the 

denial and to notify the requestor of any State judicial, administrative procedures, or statutes of 

limitation.

4 The State agrees to make the fullest possible disclosure of records to the public, except where 

the record would qualify for any of the exemptions under the federal Freedom of Information 

Act, 5 U.S.C. 552(a)(2), if such exemption is recognized by the State, and the New Mexico 

Inspection of Public Records Act (NMSA 1978 §§14-2-1 et seq.) . 

5 A reduction or waiver of fees will be considered in connection with each request for the press or 

other communication medium, or from a public interest group if in the public interest. The State 

agrees to reduce or waive the fee, in accordance with the New Mexico Inspection of Public 

Records Act, NMSA 1978, §§ 14-2-1 et seq. and NMED Policy 0106, or its successor policies, 

as updated. 

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 requestor of the confidentiality claim within 

the maximum 20-day time limit provided for agency response. In addition, the requestor will be told 

that the request was initially denied in order to resolve the business confidentiality claim.

D. OVERSIGHT 
Memorandum of Agreement September 2010 – Page 14

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). 

IX. CORRECTIVE ACTION 

A. STATE ROLE 

The State will conduct the RCRA Corrective Action Program in a manner that promotes rapid 

achievement of cleanups while protecting human health and the environment. Specifically, the State 

will, to the extent practicable: 

1 Embrace flexible, practical, results-based approaches that focus on control of human exposure 

and contaminated groundwater migration in the short term, with final cleanup being the long term goal; 

2 Provide ready public access to information and meaningful opportunities for public involvement 

in the cleanup process; 

3 Foster a culture of innovation, creativity, communication and technical expertise, focused on 

accelerating cleanups; and 

4 Carefully consider key program guidance (and any updates) in conducting the RCRA Corrective 

Action Program. 

B. EPA ROLE 

EPA will assist the State with all aspects of the cleanup program and support its efforts to conduct 

faster, focused and more flexible RCRA cleanups. 

X. REGULATION OF RADIOACTIVE MIXED WASTES 

The NMED will regulate the hazardous waste component of mixed waste as a hazardous waste 

pursuant to the State program and RCRA. 
Memorandum of Agreement September 2010 – Page 15

U.S. ENVIRONMENTAL PROTECTION AGENCY

REGION 6

BY:__________________________________________

 Alfredo Armendariz

 Regional Administrator

DATE:___October 12, 2010________________ 
Memorandum of Agreement September 2010 – Page 16