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. 

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
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. 

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 

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. 

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. 

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. 

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. 

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. 

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.  

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

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. 

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.  

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. 

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. 

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 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 

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. 

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 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 statement of the reasons for the comment (including the section of the
State law or regulations that supports the comment), and 

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). 

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: 

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);


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: 

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 

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.) 

To any unit of local government having jurisdiction over the area where
the facility is proposed to be located. 

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. 

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 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 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 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

 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 

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. 

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. 

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.

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.) .


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 

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. 

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: 

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; 

Provide ready public access to information and meaningful opportunities
for public involvement in the cleanup process; 

Foster a culture of innovation, creativity, communication and technical
expertise, focused on accelerating cleanups; and 

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.  





	

U.S. ENVIRONMENTAL PROTECTION AGENCY

REGION 6

BY:__________________________________________

           Alfredo Armendariz

           Regional Administrator

DATE:___October 12, 2010________________              



												

Memorandum of Agreement 		September 2010 – Page   PAGE   \*
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