CHAPTER VII. ADMINISTRATIVE RECORDS FOR STATE PROGRAM APPROVAL DECISIONS OSWER Directive 9650.12 SUGGESTED PROCEDURES FOR REVIEW OF STATE UST APPLICATIONS May 1992
VII. ADMINISTRATIVE RECORDS FOR STATE PROGRAM APPROVAL DECISIONS
OSWER Directive 9650.12
Purpose of the Record. The Regions must maintain an administrative record for each State program approval decision. The administrative record is simply a compilation of materials considered or relied upon by the Agency in making an administrative decision, for example, a tentative or final state program approval decision. The purpose of an administrative record is to assist the Agency decision makers in considering the basis for proposed Agency action, and to provide a basis upon which the Agency can defend, and a court can review, the final administrative decision. The record also provides the public with background information regarding the Agency's rulemaking.
OSWER Directive 9650.12
Content of the Record. Internal communications, (for example, comments received from within the Region, other Regional offices, or Headquarters), are generally not part of the administrative record. However, formal guidance documents or policy directives from Headquarters or memoranda providing factual information upon which a decision is based may be part of the record. Note that when EPA-generated information is part of the record, it generally must be made available to the public as part of the tentative decision in order to avoid notice-and-comment problems. Note that communications between the State and EPA are not internal deliberations and should be treated as any non-EPA comments. Draft documents are also generally not part of the record unless they contain information that formed a basis for the state program approval decision and are not superseded by a final document.
The administrative record for state program approval decisions should contain all non-EPA comments received during the public comment period. In addition, the Regions should document any significant non-EPA comments, whether or not received during the comment period, if they provide information upon which state program approval decisions are based.
The following list of documents is provided as guidance in establishing the administrative record:
- Pre-application materials: including correspondence between EPA and the State relevant to the tentative decision, and significant EPA comments to the State on pre-application materials.
- The State program approval application and any subsequent State submission for consideration in the approval process.
- The Federal Register notice setting forth the tentative decision and any supporting materials.
The items listed above constitute the administrative record for the tentative decision and form the basis for public comment on the proposed approval. The following documents should be added to the Docket because they are part of the Agency's administrative record on the State program approval.
- Public comments on the tentative decision, both written and oral. Oral communications should be documented for the record.
- EPA responses to public comments on the tentative decision.
- The Federal Register notice setting forth the final State program approval decision and any supporting materials.
The Regional UST Attorney can answer questions concerning what materials should be included in the record for state program approval decisions. Additional guidance on establishing an administrative record, also known as a docket, can be found in the UST Regulatory Docket Procedures Manual.