Memorandum of Agreement September 2010
– Page 1 MEM ORANDUM 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, re sponsibilities, 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 coo rdinate 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"). F or 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 an y 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 i n order to ensure consistency with State program modifications made or for any other pur pose mutually

agreed upon. Any

revisions or modifications to this Agreement must be in writing and must be signed b y the State and the Regional Administrator. This Agreement will remain in effect until such time as State program authorization is withdrawn by or is voluntaril y 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 an y related amendments o r 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 an y right or benefit, substantive or procedural, enforceable b y law or equit y, b y persons who are not part y to this agreement, against the State or EPA, their officers or employees, or an y other person. This MOA does not direct or appl y to an y 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 provisi ons 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 mainta in 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 pr omulgated 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. Whil e 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 toMemorandum of Agreement September 2010
– Page 3

coordinate the implementation of such provisions to the greatest degree possible. EPA will oversee impleme ntation 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 accompl ished 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 ano ther mutuall y 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 b y the ongoing program assessment activities described abo ve. 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 re gulated persons, the public, and federal, State and local agencies. Copies of an y such comments received b y the Regional Administrator will be provided to the State. To ensure effective program review, The State agrees to allow EPA access to all files an d other information requested b y the Regional Administrator or his or her designee and deemed necessary b y EPA for reviewing State program administration and enforcement. Review of the New Mexico Environment Department files may be scheduled at quarterl y 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 disc uss mutual program concerns. These meetings will be scheduled at least fifteen day s in advance unless mutually agreed to differentl y. 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 b y 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 appr opriate, and will serve to identify those activities that should receive the highest priorit y 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 carefull y 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 sub sequent to the effective date of this Agreement, and whether first received b y 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 an y reports and data resulting from compliance inspections within sixty day s of completion of the inspections. 4 EPA a grees 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 day s of the effective date of this Agreement. The State will also forward, on a monthly basis, notification information (including newly assigned EPA identification number s) 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 identi fication 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 rel evant 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 Administrat or in advance of an y 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 acti ons 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 revisio ns must be made in accordance with the provisions of 40 CFR 271.21, and that until approved b y 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, HazardousMemorandum of Agreement September 2010
– Page 6

Waste Division, 1445 Ross Avenue, Suite 1200, Dall as, Texas, 75202
- 2733. 2 The State agrees to provide an y pertinent public information requested b y 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, annuall y, EPA and the State will agree on the ty

pe 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. In formation 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 accuratel y describe the status of the State’s authorized program, including biennial reports summarizing the quantities and ty pes of hazardous waste generated, transported, treated, stored and disposed in the State; and d. State decisions to grant variances and waiver requests made b y hazardous waste handlers. 4 The State agrees to provide EPA with a cop y 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 an y pertinent information requested b y 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 cop y 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 Pre sident and Congress on the achievements of the hazardous waste program and to support EPA's regulatory development efforts. Whenever EPA determines that it needsMemorandum 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 con duct 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 an y i nformation that the handling, storage, treatment, transportation, or disposal of hazardous waste presents an imminent and substantial endangerment to human health or the environment, the part y 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 Divisio n 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 confident ialit y, 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 confidentialit y and which the State nee ds 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 fa cilities and permits for HSWA requirements. Whenever EPA adds permitting standards for processes not currentl y covered b y federalMemorandum 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 Stat e 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 an y pending permit applications, complet ed permit or pertinent file information to the State within thirty day s 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 day s 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 b y 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 ac cordance 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 e xpeditiously 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 provisi ons 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 shal l be given reasonable opportunit y to submit significant data, views or arguments orall y 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 N otice of Intent to deny , and a timel y request for a public hearing is received from the applicant; (2) the Secretary

issues a Draft Permit, a timel y request for a public hearing is received from an y person opposed to granting of the permit, and such perso n 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 p rovided 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. I f such issues are resolved to the sati sfaction 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 appli cable 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 con sistent with the requirement of 40 CFR Part 124 that the individuals and agencies entitled to receive public notice of an y 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, UI C, PSD, NPDES or 404 permit for the same facility or activity

(including EPA when the draft permit is prepared b y the State); 2 Federal and State agencies with jurisdiction over fish, shell fish and wildlife resources and over coastal z one 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 b y:Memorandum of Agreement September 2010
– Page 10

a. In cluding those who req uest 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 pr ess and in such publications as Regional and State funded newsletters, environmental bulletins, State law journals, or b y other means. (The State may update the mailing list from time to time by requesting written indication of continued interest from tho se 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 an y 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 identi fied in paragraphs 1 and 2 above shall be notified of the location of the permit application (if an y), and draft permit (if an y), for their review. The State will issue all RCRA permits in the State, except for the portions of permits dealing with provis ions under HSWA for which the State has not y et 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 a dminister the HSWA provisions, EPA will transfer and provide information, applications, and assistance to the NMED in accordance with requests b y the NMED The State agrees that an y 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 Mex ico 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 hereb y establish this joint permitting process for the issuance of RCRA permi ts 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 , b ut no less often than annuall y t o assure its continued appropriateness. The Oversight Document shall be amended to reflect an y 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 modi fy, 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 a ction 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 daysMemorandum 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 Admini strator 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 an y 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 t itle, the Regional Administrator shall give notice to the State in which such violation has occurred p rior to issuing an order or commencing a civil action under section 3008(a) . EPA also maintains authority to issue orders and bring actions under section s 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 con dition 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, 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 compl iance b y 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), facilit y 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 ag rees to take timely and appropriate enforcement action . T he 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 da ta 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 enforcemen t action, all records will be retained until such action is resolved.

VIII. AVAILABILITY OF INFORMATIONMemorandum 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 b y the State regard ing 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 INFORMAT ION 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. Examp les 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 mad e 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 f ormulate 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 b y the State, and the N ew 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 agenc y response. In addition, the requestor will be told that the request was initially denied in order to resolve the business confidentiality claim. D. OVERSIGHTMemorandum of Agreement September 2010
– Page 14

1 The State agrees to keep a log of denials of requests for information (or a file containing c opies 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 p riorities, 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. Speci fically , 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 Prov ide 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 Carefull y consid er 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 A GENCY REGION 6 BY:_______

_______________________________ ____ Alfredo Armendariz Regional Administrator DATE:___ October 12, 2010

________________Memorandum of Agreement September 2010
– Page 16