[Federal Register Volume 61, Number 85 (Wednesday, May 1, 1996)]
[Proposed Rules]
[Pages 19432-19464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9707]




[[Page 19431]]


_______________________________________________________________________

Part V





Environmental Protection Agency





_______________________________________________________________________



40 CFR Ch. I



Corrective Action for Releases From Solid Waste Management Units at 
Hazardous Waste Management Facilities; Proposed Rule

  Federal Register / Vol. 61, No. 85 / Wednesday, May 1, 1996 / 
Proposed Rules  

[[Page 19432]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Ch. I

[FRL-5460-2]
RIN 2050-AB80


Corrective Action for Releases From Solid Waste Management Units 
at Hazardous Waste Management Facilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Advance notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: Today's action has three purposes. First, it introduces EPA's 
strategy for promulgating regulations governing corrective action for 
releases from solid waste management units at hazardous waste 
management facilities under the Resource Conservation and Recovery Act 
(RCRA) and requests information to assist in identification and 
development of potential improvements to the protectiveness, 
responsiveness, speed or efficiency of corrective actions. The Agency 
originally proposed corrective action regulations on July 27, 1990. 
Second, to provide context for potential revisions to the corrective 
action program, today's Notice includes a general status report on the 
corrective action program and how it has evolved since the 1990 
proposal, and provides guidance on a number of topics not fully 
addressed in 1990. Third, it emphasizes areas of flexibility within the 
current program and describes program improvements currently underway 
or under consideration.

DATES: To ensure consideration, information and data must be received 
on or before July 30, 1996.
    EPA will hold a public hearing on this Notice on June 3, 1996.

ADDRESSES: Written comments responding to today's Notice should be 
addressed to: Docket Clerk, U.S. Environmental Protection Agency, RCRA 
Docket (OS-305), 401 M Street SW, Washington, D.C. 20460. Comments sent 
by special delivery, such as overnight express services, should be 
addressed to: RCRA Docket Information Center (RIC), Crystal Gateway 
One, 1235 Jefferson Davis Highway, First Floor, Arlington, VA 22202. 
Electronic comments should be addressed to: RCRA-
D[email protected].
    The June 3, 1996 public hearing will be held at the Key Bridge 
Marriott, located at 1401 Lee Highway, Arlington, VA 22209. Advance 
requests to speak at the hearing should be submitted, in writing, to: 
Hugh Davis (5303W) U. S. Environmental Protection Agency, 401 M Street, 
SW, Washington, DC 20460.
    For important additional instructions on submitting comments or 
making a request to speak at the public hearing, see Supplementary 
Information.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline at (800) 424-9346 (toll-free) or (800) 553-7672 (hearing 
impaired), or (703) 412-9810 (locally), Monday-Friday, 8:00-5:00 
eastern standard time. For technical information, contact Hugh Davis, 
Office of Solid Waste (5303W), U.S. Environmental Protection Agency, 
401 M Street SW, Washington, D.C. 20460. Phone, (703) 308-8633. E-mail 
address, [email protected].

SUPPLEMENTARY INFORMATION:

Instructions for Submitting Comments and Requests To Speak at the 
Public Hearing

    Commenters should place the docket number (F-96-CA2P-FFFFF) on all 
comments and submit an original and two copies. Comments also may be 
submitted electronically, through the Internet. Comments submitted 
electronically should be in ASCI to avoid the use of special characters 
and encryptions.
    The official record for this action will be kept in paper form. EPA 
will transfer all comments received electronically into paper form and 
place them, with comments submitted directly in writing, in the 
official record. EPA responses to comments will be recorded in a notice 
in the Federal Register or in an official record for this action. EPA 
will not immediately reply to electronic comments other than to seek 
clarification of comments that may be garbled in transmission or during 
conversion to paper form.
    Confidential business information (CBI) may be included in 
comments, however, to ensure continued confidentiality, it must be 
submitted under separate cover. If including CBI, commenters should 
submit an original and two copies to: U.S. Environmental Protection 
Agency, RCRA CBI Document Control Officer, OSW (5303W), 401 M Street 
SW, Washington, D.C. 20460. Place the docket number (F-96-CA2P-FFFFF) 
on the CBI and include a reference to any non-CBI comments submitted. 
Do not submit CBI electronically.
    Docket materials may be reviewed by appointment by calling (703) 
603-9230. The docket is located on the first floor of the Crystal 
Gateway building at 1235 Jefferson Davis Highway in Arlington, Virginia 
and is open from 9:00 a.m. to 4:00 p.m., Monday through Friday, 
excluding Federal holidays. A maximum of 100 pages of material may be 
copied at no cost from any one regulatory docket. Additional copies are 
$0.15 per page. The main switchboard number for the hotel is (703) 524-
6400.
    Individuals interested in directions to the June 3, 1996 public 
hearing at the Key Bridge Marriott or room reservations should contact 
the hotel directly at (703) 524-6400. Registration for the hearing will 
begin at the hotel at 8:30 am. The hearing will begin at 9:00 am. and 
end at 5:00 pm unless concluded earlier. Oral and written statements 
may be submitted at the public hearing. Time for the public hearing is 
limited; oral presentations will be made in the order that requests are 
received and will be limited to 15 minutes, unless additional time is 
available. Advance requests to speak at the public hearing should be 
clearly marked as a request to speak at the public hearing and include 
the scheduled date of the hearing (June 3, 1996) and the docket number 
for this action (F-96-CA2P-FFFFF). Requests to speak at the public 
hearing may also be made on the day of the hearing, by registering at 
the door; request to speak by individuals who choose to register at the 
door on the day of the hearing will be granted in the order received, 
as time permits. All individuals who choose to speak at the public 
hearing are requested to provide a paper copy of their testimony for 
the record.

Internet Access

    This notice is available on the Internet. To access today's Notice 
electronically:

Gopher: gopher.epa.gov
WWW: http://www.epa.gov
Dial-up: (919) 558-0353

    From the main EPA Gopher menu, select: EPA Offices and Regions/
Office of Solid Waste and Emergency Response (OSWER)/Office of Solid 
Waste (RCRA)/Hazardous Waste/Corrective Action.

FTP: ftp.epa.gov
Login: anonymous
Password: your Internet address
Files are located in /pub/gopher/oswrcra

Glossary of Commonly Used Acronyms

ASTM--American Society for Testing and Materials
ASTSWMO--Association of State and Territorial Solid Waste Management 
Officials
CAMU--Corrective Action Management Unit
CAP--Corrective Action Plan
CERCLA--Comprehensive Environmental Response, Compensation and 
Liability Act
CMI--Corrective Measures Implementation

[[Page 19433]]

CMS--Corrective Measures Study
CSGWPP--Comprehensive State Groundwater Protection Program
DQO--Data Quality Objective
EAB--Environmental Appeals Board
FACA--Financial Assurance for Corrective Action
HSWA--Hazardous and Solid Waste Amendments
LDR--RCRA Land Disposal Restrictions
MCL--Maximum Contaminant Limit
MTR--RCRA Minimum Technology Requirements
NCAPS--National Corrective Action Prioritization System
NPL--National Priorities List
NCP--National Oil and Hazardous Substances Pollution Contingency 
Plan
OSW--EPA Office of Solid Waste
OSWER--EPA Office of Solid Waste and Emergency Response
POC--Point of Compliance
RBCA--Risk Based Corrective Action (refers to ASTM standard E1739-
95)
RCRA--Resource Conservation and Recovery Act
RFA--RCRA Facility Assessment
RFI--RCRA Facility Investigation
RU--Regulated Unit
SWMU--Solid Waste Management Unit
SSG--EPA Soil Screening Guidance
TI--Technical Impracticability
TSDF--Treatment, Storage, or Disposal Facility
UST--Underground Storage Tank

Outline

I. Background
    A. Statutory and Regulatory Requirements
    B. Summary of Today's Notice
II. Subpart S Initiative
    A. Objectives
    B. Outreach
    1. States
    2. Environmental and Public Interest Community
    3. Regulated Community
    4. Other Federal Agencies
    C. On-Going Role of the States
    D. Strategy and Schedule
    E. Major Corrective Action Program Developments Since 1990
    1. Stabilization Initiative
    2. Environmental Indicators for Corrective Action
    3. Corrective Action Plan
    4. CAMU Rule
    5. Other Developments
    F. Relationship to Other Agency Initiatives and Rulemakings
    1. HWIR Media
    2. Post-Closure Rule
    a. The Post-Closure Permit Requirement
    b. Applicability of 40 CFR Parts 264 and 265 to Regulated Units 
Requiring Corrective Action
    c. State Corrective Action Enforcement Authority
    3. RCRA Statutory Reform
    4. Improvements to the Procedures for Authorization of State 
Hazardous Waste Program Revisions
    5. Superfund Reauthorization
    6. Superfund Administrative Improvements and Reforms
    a. Guidance on Land Use
    b. Soil Screening Guidance
    c. Presumptive Remedies
    d. Community Based Remedy Selection
    7. Brownfields Initiative
    8. Environmental Justice
    9. Permits Improvement Team
III. Corrective Action Implementation
    A. Program Management Philosophy
    B. Scope and Definitions
    1. Concept of Parity
    2. Voluntary Cleanup
    3. Definitions
    a. Facility
    b. Release
    c. Solid Waste Management Unit
    d. Hazardous Waste and Hazardous Constituent
    C. Corrective Action Process
    1. Initial Site Assessment
    a. Facility Owners/Operators May Gather RFA Information
    b. Release Assessment
    c. National Corrective Action Prioritization System
    2. Site Characterization
    a. Conceptual Site Models
    b. Innovative Site Characterization Technologies
    c. Tailored Data Quality Objectives
    d. Use of Existing Information to Streamline the Remedial 
Investigation
    e. Role of Action Levels
    f. Integration With the Evaluation of Remedial Alternatives
    3. Interim Actions
    4. Evaluation of Remedial Alternatives
    a. Integration With Site Characterization
    b. Formal Evaluation Not Always Necessary
    c. Facility Owner/Operator Should Recommend a Preferred Remedy
    5. Remedy Selection
    a. Balancing Treatment and Exposure Control
    b. Remedy Selection Criteria
    c. Media Cleanup Standards
    d. Points of Compliance
    e. Compliance Time Frame
    f. Site-Specific Risk Assessments
    g. Ecological Risk
    h. Determinations of Technical Impracticability
    i. Natural Attenuation
    j. Land Use
    6. Remedy Implementation
    a. Performance Based Corrective Measures Implementation
    b. Performance Monitoring
    c. Completion of Corrective Measures
    D. Incorporation of Corrective Action in RCRA Permits
    E. Corrective Action Orders
    F. Public Involvement and Environmental Justice
    G. Financial Assurance
IV. Corrective Action Program Priorities
V. Request for Comment and Data
    A. General
    B. Resolution of the 1990 Proposal.
    C. Focusing the Corrective Action Program on Results
    1. Performance Standards
    2. Less Focus on Solid Waste Management Units
    D. Using Non-RCRA Authorities for Corrective Action
    1. State Cleanup Programs
    2. Enhanced Flexibility for States with EPA-Endorsed CSGWPPs
    3. Voluntary Corrective Action
    4. Corrective Action at Interim Status Facilities
    5. Independent or Self-Implementing Corrective Action
    6. Consistency With the CERCLA Program
    7. ASTM RBCA Standard
    8. Definition of Facility for Corrective Action
    E. Balance Between Site-Specific Flexibility and National 
Consistency
    1. Land Use
    2. Points of Compliance
    3. Standardized Lists of Action Levels and Media Cleanup Levels
    4. Area Wide Contamination Issues
    5. Ecological Risk
    6. Risk Assessment Methods
    F. Public Participation and Environmental Justice
    G. When Permits Can Be Terminated
    H. Effect of Property Transfer on Corrective Action Requirements
    I. Financial Assurance for Corrective Action
    J. State Authorization

I. Background

A. Statutory and Regulatory Requirements

    In the 1984 Hazardous and Solid Waste Amendments (HSWA) to the 
Resource Conservation and Recovery Act (RCRA), Congress directed EPA to 
require corrective action for all releases of hazardous waste and 
hazardous constituents from solid waste management units at facilities 
seeking RCRA permits (i.e., hazardous waste Treatment, Storage or 
Disposal Facilities or TSDFs) regardless of the time at which waste was 
placed in the units. When corrective action cannot be completed prior 
to permit issuance, the statute directs EPA to specify corrective 
action schedules of compliance and financial assurance in all permits 
issued under RCRA section 3005. In addition, EPA is directed to require 
that corrective action be taken beyond facility boundaries unless 
facility owners/operators demonstrate to the Agency's satisfaction 
that, despite their best efforts, they were unable to obtain the 
necessary permission to undertake off-site corrective action. (See, 
RCRA section 3004 (u) and (v), 42 U.S.C. 6924 (u) and (v).) At the same 
time, Congress enacted the RCRA permit omnibus provision directing 
that, ``each permit issued under [RCRA Section 3005] contain such terms 
and conditions as the Administrator determines necessary to protect 
human health and the environment.'' (See, RCRA sections 3005(C)(3), 42 
U.S.C. 6925(c)(3).) EPA is authorized to require corrective action

[[Page 19434]]

at interim status facilities under RCRA section 3008(h), 42 U.S.C. 
6928(h).
    At the time the new corrective action provisions were enacted, 
corrective action for releases to groundwater from RCRA regulated units 
was already required under 40 CFR part 264, subpart F. RCRA regulated 
units are defined in 40 CFR 264.90 as surface impoundments, waste 
piles, land treatment units, and landfills that received hazardous 
waste after July 26, 1982; they are a subset of the universe of solid 
waste management units. The 1984 HSWA amendments extended corrective 
action authority at TSDFs to all waste management at units that 
received solid or hazardous waste at any time. In the legislative 
history of RCRA section 3004(u), Congress noted that one purpose of the 
new corrective action requirements was to ensure that RCRA facilities 
did not become Superfund cleanup sites. The legislative history records 
that, ``Unless all hazardous constituents released from solid waste 
management units at permitted facilities are addressed and cleaned up 
the Committee is deeply concerned that many more sites will be added to 
the future burdens of the Superfund program with little prospect for 
control or cleanup. The responsibility to control such releases lies 
with the facility owner and operator and should not be shifted to the 
Superfund program, particularly when a final permit has been requested 
by the facility.'' (See, H.R. Rep. No. 198, 98th Cong., 1st Sess., part 
1, 61 (1983).)
    In July 1985, EPA codified corrective action requirements at 40 CFR 
264.90(a)(2); 264.101; 270.60(b) and 270.60(c). (See, 50 FR 28702, July 
15, 1985.) These regulations reiterate the statutory language of RCRA 
section 3004(u) by requiring facility owners/operators seeking RCRA 
permits to institute corrective action, as necessary to protect human 
health and the environment, for all releases of hazardous waste and 
constituents from solid waste management units at the facility. When 
corrective action cannot be completed prior to permitting, EPA requires 
that all permits contain corrective action requirements, schedules of 
compliance, and financial assurance. In 40 CFR 270.60(b) and 270.60(c), 
EPA clarified that corrective action is also required for some 
facilities with RCRA permits-by-rule, including hazardous waste 
management facilities with permits issued under the Underground 
Injection Control program and the National Pollution Discharge 
Elimination System (NPDES) permitting program.
    In December 1987 (52 FR 45788, December 1, 1987), EPA promulgated 
additional corrective action regulations to codify the statutory 
language of RCRA Sec. 3004(v), requiring corrective action for releases 
beyond the facility boundary. EPA also established permit application 
requirements necessary to support corrective action implementation, and 
modified the corrective action requirements for underground injection 
wells with RCRA permits-by-rule.
    On July 27, 1990 (55 FR 30798), EPA proposed detailed regulations 
to govern the RCRA corrective action program. The 1990 proposal was 
designed to be the analogue to the CERCLA program's National Oil and 
Hazardous Substances Pollution Contingency Plan (NCP). As such, it 
addressed both technical (e.g., cleanup levels, remedy selection, 
points of compliance) and procedural (e.g., definitions, permitting, 
reporting) elements of the corrective action program. In the 1990 
proposal, EPA emphasized the need for site-specific flexibility in 
cleanup programs. The Agency stated, ``Because of the wide variety of 
sites likely to be subject to corrective action, EPA believes that a 
flexible approach, based on site-specific analyses is necessary. No two 
cleanups will follow exactly the same course, and therefore, the 
program has to allow significant latitude to the decision maker in 
structuring the process, selecting the remedy, and setting cleanup 
standards appropriate to the specifics of the situation.'' (See, 55 FR 
30802.)
    The 1990 proposal was the subject of significant public comment. 
Although EPA has finalized only a few sections of the 1990 
proposal,1 the bulk of the proposal is routinely used as guidance 
during corrective actions.
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    \1\  See 58 FR 8658, February 16, 1993, ``Corrective Action 
Management Units'' where EPA finalized regulations addressing the 
creation, management, and closure of units created specifically for 
purposes of managing remediation wastes.
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B. Summary of Today's Notice

    Today's Notice introduces EPA's strategy for promulgation of 
corrective action regulations and requests public input on a variety of 
issues and concepts associated with corrective action. To provide 
context for potential revisions to the corrective action program and 
because the Agency's philosophy and strategies have evolved in many 
respects since 1990, today's Notice also includes a general status 
report on the corrective action program and how it has grown since the 
1990 proposal, and provides guidance on a number of topics not fully 
addressed in 1990. Finally, today's Notice emphasizes the flexibility 
inherent in the existing corrective action program, discusses steps EPA 
is already taking to improve corrective actions and requests comments 
on new approaches to expedite and simplify facility cleanups.
    In Section I of today's Notice, EPA identifies the statutory and 
regulatory basis of the corrective action program.
    Section II of today's Notice introduces EPA's Subpart S Initiative. 
Through the Subpart S Initiative the Agency intends to identify and 
implement improvements to the protectiveness, responsiveness, speed and 
efficiency of the corrective action program. Section II includes 
discussions of the Subpart S Initiative objectives, outreach, and 
schedule. It also includes discussions of major corrective action 
program guidance and policy milestones that have occurred since 1990, 
and the relationship of the Subpart S Initiative to other agency 
rulemakings and initiatives.
    In Section III, EPA discusses corrective action implementation, 
describes how certain program elements have evolved since 1990, and 
provides guidance on a number of topics that were not fully addressed 
in the 1990 proposal. This section emphasizes areas of flexibility in 
the current corrective action program and highlights innovative 
approaches some program implementors and facility owners/operators have 
used to expedite cleanups. Readers are urged to pay particular 
attention to Section III in order to gain an overall understanding of 
the Agency's latest thinking on corrective action implementation.
    Section IV of today's Notice builds on the detailed discussions in 
Section III by providing concise statements of EPA's corrective action 
implementation goals and strategies.
    In Section V of today's Notice, EPA requests comments and data on a 
variety of issues to assist it in identifying and developing 
improvements to the corrective action program. In some cases, the 
Agency raises new concepts that would likely warrant re-proposing 
regulations or developing new guidance documents; in other cases, 
concepts were addressed in the 1990 proposal but are included in 
Section V because the Agency is requesting additional comment and data 
at this time.

II. Subpart S Initiative

    EPA and the states have made considerable progress in implementing 
the corrective action requirements; however, despite this progress, the 
overall implementation of the corrective action program has been 
subject to considerable criticism. States,

[[Page 19435]]

environmental groups and the regulated community have raised many 
concerns, including: slow progress in achieving cleanup or other 
environmental results; an emphasis on process and reports over actual 
work in the field; unrealistic, impractical or overly conservative 
cleanup goals; excessive and detailed oversight; reluctance to 
authorize or recognize the work of state cleanup programs; and, lack of 
meaningful public participation. EPA believes that many of these 
concerns have been overstated; however, at the same time, it recognizes 
that improvements to the corrective action program are necessary. EPA 
and the states now have more than ten years experience in implementing 
the corrective action requirements. EPA believes the time has come to 
reevaluate the RCRA corrective action program to identify and implement 
improvements to the program's speed, efficiency, protectiveness and 
responsiveness, and to focus the program more clearly on environmental 
results. The reevaluation effort is known as the Subpart S Initiative.
    As part of the Subpart S Initiative, EPA has been working with 
states and other stakeholders to develop a comprehensive strategy to 
identify and develop improvements to the corrective action program and 
promulgate final corrective action regulations. The Subpart S 
Initiative involves assessment of the current corrective action 
program, outreach to stakeholders, finalization of some elements of the 
1990 proposal, development of new proposals and guidance documents, and 
today's Notice.
    EPA is committed to substantive consistency among its cleanup 
programs. For that reason, the Subpart S Initiative is being 
coordinated closely with the Superfund program, including the Superfund 
administrative improvements efforts and Superfund reauthorization 
activities.

A. Objectives

    Taking into consideration corrective action implementation 
experience, recent feedback from stakeholders, and the comments 
received on the 1990 proposal, EPA has developed five objectives for 
the Subpart S Initiative:
    (1) Create a consistent, holistic approach to cleanups at RCRA 
facilities;
    (2) Establish protective, practical cleanup expectations;
    (3) Shift more of the responsibilities for achieving cleanup goals 
to the regulated community;
    (4) Focus on opportunities to streamline and reduce costs; and,
    (5) Enhance opportunities for timely, meaningful public 
participation.
    Implementation of these five objectives will involve new approaches 
to corrective action and may necessitate significant revisions to the 
existing corrective action program. In adopting any new approach, EPA 
will not sacrifice protection of human health and the environment or 
the meaningful involvement of the public and affected communities.

B. Outreach

    EPA believes the experiences of states, the regulated community, 
other Federal agencies, and environmental and public interest groups 
will be tremendously valuable as it works to identify and develop 
improvements to the corrective action program. Today's Notice reflects 
the involvement of interested stakeholder groups, as discussed below. 
EPA is committed to a continuing and meaningful dialogue with these 
groups as the Subpart S Initiative develops. As the Subpart S 
Initiative progress, EPA will continue to identify interested 
stakeholder groups and invite their input and involvement.
1. States
    In December and January 1995, EPA met twice with interested state 
representatives to solicit their early input in the Subpart S 
Initiative. In general, these state representatives advised that the 
corrective action program: Retain considerable flexibility; emphasize 
results over process; be generally consistent with the CERCLA program; 
address consistency issues within the RCRA program (e.g., between 
cleanups at SWMUs and regulated units); address risk assessment and 
risk management, including ecological risk; empower states and expedite 
state authorization; and, encourage stabilization without discouraging 
final cleanups. State representatives also strongly advised against 
finalizing corrective action regulations in pieces, favoring the 
comprehensive approach reflected in today's Notice. The ongoing role of 
the states in the Subpart S Initiative is discussed below.
2. Environmental and Public Interest Community
    EPA wrote nine environmental and public interest groups requesting 
their early involvement in the Subpart S Initiative. To date, EPA has 
met with one environmental group, the Environmental Defense Fund (EDF). 
The Environmental Defense Fund expressed support for changes in the 
corrective action program to improve the speed and efficiency of 
cleanups and increase opportunities for meaningful public 
participation. Their suggestions include: tailoring the level of public 
participation to the level of community interest; including 
opportunities for public participation throughout the cleanup process; 
using risk goals and clearly defined cleanup standards to make cleanups 
more efficient; maintaining a throughout-the-plume/unit boundary 
cleanup point of compliance; and, using deed restrictions at non-
residential cleanups. While EDF expressed general support for 
consistency in technical matters between RCRA and CERCLA, they also 
expressed the opinion that operating hazardous waste management 
facilities, such as those typically addressed by RCRA corrective 
action, have an ongoing responsibility to their communities and should, 
perhaps, be held to higher cleanup standards than abandoned (i.e., 
Superfund) sites. EPA welcomes the continued involvement of EDF in the 
Subpart S Initiative and will continue to look for opportunities to 
involve other environmental and public interest groups.
3. Regulated Community
    EPA met with and received written materials from a variety of 
industry groups which offered their suggestions for improvements to the 
corrective action program. In general, industry groups expressed 
frustration with the pace and cost of corrective actions and what they 
perceive as overly stringent cleanup criteria. Their suggestions 
include increased reliance on performance standards, more emphasis on 
non-residential future land use scenarios, and improved coordination 
with other applicable cleanup authorities (e.g., the Superfund program 
and state cleanup programs). EPA welcomes the continued involvement of 
the regulated community in development of the Subpart S Initiative.
4. Other Federal Agencies
    During Spring and Summer 1995, EPA held a series of meetings with 
other Federal agencies, including, the Department of Defense (DOD), the 
Department of Energy (DOE), the Department of Agriculture, the Council 
on Environmental Quality (CEQ), and the Office of Management and Budget 
(OMB). Many of these agencies own or operate facilities which are 
subject to RCRA corrective action. During these meetings, EPA and the 
other Federal agencies discussed potential improvements to the RCRA 
corrective action and Superfund programs. EPA will continue these 
discussions during development of the Subpart S Initiative.
    The Department of Defense and the Department of Energy reviewed and

[[Page 19436]]

provided comments on a draft version of today's Notice and EPA met with 
DOD and DOE representatives to discuss their comments and suggested 
changes.

C. On-Going Role of the States

    The states are the primary implementors of the corrective action 
program. Because of this, EPA has actively solicited state input and 
participation in the Subpart S Initiative and is developing the 
Initiative in full partnership with the states. As of today's Notice, 
thirteen states 2 have agreed to participate in the Subpart S 
Initiative as co-regulators. During the co-regulation process, state 
representatives participate actively in development of policy and 
regulatory options and analyses. As discussed above, EPA has held two 
meetings with state representatives to discuss development of the 
Subpart S Initiative; three additional meetings and a fifty-state 
review of any regulatory proposals are planned. In addition, 
representatives of interested states participated actively in 
development of today's Notice and reviewed and provided comment on 
numerous drafts.
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    \2\ These states are: Wisconsin, Texas, Georgia, Idaho, Florida, 
Colorado, New York, California, Utah, Oklahoma, North Carolina, 
Delaware, and Missouri.
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D. Strategy and Schedule

    The Subpart S Initiative will include development of guidance and 
policy documents and rulemaking. EPA intends to publish rule language 
in fall 1997. In order to present the Agency's visions for the 
corrective action program and regulations in totality, the 1997 
publication will promulgate elements of the 1990 proposal that the 
Agency believes do not need additional public review and will re-
propose other program elements. Based in part on comments received in 
response to Section V.B of today's Notice, EPA will determine which 
elements of the 1990 proposal will be finalized without further comment 
and which elements will be re-proposed.
    Guidance and policy development will play an important role in the 
Subpart S Initiative. The balance between guidance and policy 
development and rulemaking will be determined, in part, by comments 
received on today's Notice. Section V.A of this Notice requests 
specific recommendations for additional policy or guidance development.

E. Major Corrective Action Program Developments Since 1990

    The Subpart S Initiative builds on several recent and important 
developments in the corrective action program. Many of these program 
developments are addressed in the EPA guidance documents discussed 
below; other program developments were associated with promulgation of 
the Corrective Action Management Unit (CAMU) regulations, also 
discussed below. A complete list of corrective action guidance 
documents is available in the ``RCRA Corrective Action Plan,'' EPA/520-
R-94-004, OSWER Directive 9902.3-2A, May 1994, included in the docket 
for today's Notice.
1. Stabilization Initiative
    EPA's early implementation of the corrective action program focused 
on final, comprehensive cleanups at a limited number of facilities. As 
EPA and states gained more experience, it became clear that, at many 
sites, final cleanups were difficult and time-consuming to achieve and 
that an emphasis on final remedies at a few sites could divert limited 
resources from addressing ongoing releases and environmental threats at 
many other sites. As a result, in 1991, the Agency established the 
Stabilization Initiative as one of the primary implementation 
objectives for the corrective action program. The goal of the 
Stabilization Initiative is to increase the rate of corrective actions 
by focusing on near-term activities to control or abate threats to 
human health and the environment and prevent or minimize the further 
spread of contamination. Through the Stabilization Initiative, the 
Agency is seeking to achieve an increased overall level of 
environmental protection by implementing a greater number of actions 
across many facilities rather than following the more traditional 
process of pursuing final, comprehensive remedies at a few facilities.
    Controlling exposures or the migration of a release may stabilize a 
facility, but does not necessarily mean that a facility is completely 
cleaned up. At some stabilized facilities, contamination is still 
present and additional investigations or remediation may eventually be 
required; however, as long as the stabilization measures are 
maintained, stabilized facilities should not present unacceptable near-
term risks to human health or the environment and program implementors 
and facility owners/operators have the opportunity to shift their 
resources (either at the stabilized facility or among facilities) to 
additional health or environmental concerns. Stabilization actions 
should be a component of, or at least consistent with, final remedies. 
More information on the Stabilization Initiative is available in the 
1991 guidance memorandum ``Managing the Corrective Action Program for 
Environmental Results: The RCRA Facility Stabilization Effort'' and in 
Section III.C.3 of today's Notice.
2. Environmental Indicators for Corrective Action
    Critics of the corrective action program have often charged that 
EPA focuses too much on administrative processes rather than actual 
cleanups. As an example of this problem, critics cite Agency management 
systems which often track the number of paperwork deliverables (e.g., 
work plans approved) rather than achievement of environmental results. 
In response to these concerns and the Government Performance and 
Results Act of 1993, EPA is moving the corrective action program away 
from more traditional management systems and, consistent with a broader 
Agency-wide effort, now focuses management of the corrective action 
program on environmental indicators. Two specific environmental 
indicators have been developed for the corrective action program. These 
indicators are: Human Exposures Controlled Determination and 
Groundwater Releases Controlled Determination. The environmental 
indicators are facility-wide measures. Human Exposures Controlled is 
attained when there are no unacceptable risks to humans due to releases 
of contaminants at or from the facility subject to RCRA corrective 
action. Groundwater Releases Controlled is attained when the migration 
of groundwater contamination at or from the facility across designated 
boundaries (these boundaries may be facility boundaries or specified 
boundaries within a facility) is controlled.
    The environmental indicators are not tied to specific program 
activities or paperwork deliverables. In the course of implementing 
final remedies, the environmental indicators will be achieved; however, 
the implementation of stabilization measures can also result in 
achieving the environmental indicators. EPA is striving to make the 
corrective action program more performance based. Because the 
environmental indicators focus on results, they can serve well as 
performance measures for remedial activities. Further guidance on the 
environmental indicators is available in the July 29, 1994 memorandum 
``RCRIS Corrective Action Environmental Indicator Event Codes CA725 and 
CA750,'' which has been placed in the docket for today's Notice.

[[Page 19437]]

    EPA is committed to using the corrective action environmental 
indicators to increase the efficiency of the corrective action program 
by focusing on results. Although EPA has developed only two 
environmental indicators for corrective action to date, additional 
indicators may be developed to address factors such as ecological risk 
or source control. EPA requests comments on the development of 
additional environmental indicators in Section V.C.1 of today's Notice.
3. Corrective Action Plan
    Another concern in the corrective action program has been 
consistency. While no two cleanups will follow the exact same course, 
EPA recognizes that some level of consistency in cleanup processes can 
help to ensure that all cleanups will achieve the same overall level of 
protection. The RCRA Corrective Action Plan or CAP (OSWER Directive 
9902.3-2A, May 1994), provides guidance which program implementors and 
facility owners/operators can use to develop and direct the specific 
corrective action activities which might be necessary at any given 
facility. The CAP provides an overall program implementation framework 
and model scopes of work for site characterizations, interim actions, 
evaluation of remedial alternatives and remedy implementation. Program 
implementors and facility owners/operators can use these model scopes 
of work when developing site-specific strategies, work plans, and 
schedules of compliance.
    The CAP is not meant to be a cleanup prescription. The model scopes 
of work in the CAP present a range of activities which might be 
necessary at a corrective action facility. Program implementors and 
facility owners/operators should choose carefully from this range when 
developing facility specific work plans.
4. CAMU Rule
    Program implementors and facility owners/operators have long 
recognized that certain RCRA Subtitle C hazardous waste requirements 
can significantly complicate or delay cleanups when applied to 
remediation wastes. To address this problem, EPA promulgated 
regulations for corrective action management units (58 FR 8658, 
February 16, 1993). The CAMU rule provides relief from specific RCRA 
standards that can preclude desirable remediation options or 
unnecessarily add to the cost of remedies (e.g., the RCRA land disposal 
restrictions when applied to remediation waste) by creating a new type 
of RCRA unit. EPA and authorized states may choose to designate a CAMU 
for management of remediation waste during RCRA corrective actions and 
other cleanups. When designating CAMUs, EPA and authorized states have 
the flexibility to establish site-specific design, operating, closure 
and post-closure requirements instead of using the existing RCRA 
requirements for land-based units. Remediation wastes (i.e., media and 
debris which contain hazardous waste or exhibit a hazardous waste 
characteristic) may be consolidated into a CAMU before or after 
treatment. In addition, remediation wastes may be treated in a CAMU or 
moved (again, before or after treatment) between CAMUs at the same 
facility without automatically triggering otherwise applicable RCRA 
land disposal restrictions or minimum technology requirements.
    The CAMU rule was challenged in 1993; however, the challenge has 
been stayed pending publication of the final Hazardous Waste 
Identification Rule for Contaminated Media (HWIR-Media). EPA expects 
that the HWIR-Media rule will largely obviate the need for the CAMU 
rule, and is planning to propose withdrawal of the CAMU regulations as 
part of the HWIR-Media proposal (for a discussion of the HWIR-Media 
proposal, see Section II.F.1 of today's Notice). In the meantime, CAMUs 
may be used to support efficient and protective cleanups.
5. Other Developments
    In addition to the examples discussed above, program implementors 
and facility owners/operators are using the existing flexibility in the 
corrective action program to explore a range of new approaches in an 
effort to improve the corrective action process and expedite cleanups 
at a facility-specific level. These include: using performance 
standards to set goals for site investigations and cleanups; 
encouraging innovative technical approaches; facilitating voluntary or 
accelerated cleanups, when a facility owner/operator wants to move 
ahead of a regulatory agency; the use of third-party oversight; 
expanded public participation, including use of citizen advisory 
boards; innovative coordination with or deferral to other programs, 
including state cleanup programs; and, many other efforts. In 
accordance with EPA's emphasis on consistency of results between the 
RCRA and CERCLA programs, many of these approaches are being developed 
in cooperation with the Superfund program or state remedial programs.
    EPA encourages program implementors and facility owners/operators 
to continue to explore new approaches to corrective action and to share 
their successes and failures. Some of the innovative approaches which 
have proved most successful at individual facilities are discussed 
later in today's Notice; EPA is looking forward to receiving 
information on other new approaches in response to today's Notice. One 
of the purposes of today's Notice is to gather information on 
successful facility-specific approaches to corrective action so EPA can 
build on implementation experience as it identifies and develops 
improvements to the national program during the Subpart S Initiative.

F. Relationship to Other Agency Initiatives and Rulemakings

    EPA is involved in several rulemakings and other activities which 
will have particular impact on the Subpart S Initiative. Coordination 
with these other rulemakings and activities is ongoing.
1. HWIR Media
    The Hazardous Waste Identification Rule for Contaminated Media 
(HWIR-Media) is a regulatory reform proposal that reexamines the 
application of many of the RCRA hazardous waste treatment and 
management standards to contaminated environmental media (e.g., soil 
and groundwater) managed during Agency or authorized state overseen 
cleanups. Under current regulations, environmental media that contain 
(or are contaminated by) hazardous wastes must be managed as hazardous 
waste (this is known as the ``contained-in policy''). In developing the 
HWIR-Media proposal, EPA, in partnership with the states, is examining 
a number of reforms designed to allow program implementors to tailor 
treatment and management requirements for contaminated media to site- 
and media-specific conditions. EPA is proposing several types of 
reforms and seeking comment on a number of alternatives. The Agency may 
finalize any one or combinations of these reforms or alternatives.
    The first major area of reform that EPA is considering would revise 
the Land Disposal Restrictions (LDRs) Minimum Technological 
Requirements (MTRs) and permitting requirements that apply to 
contaminated media currently subject to hazardous waste management 
requirements, to make them more appropriate for the types of 
contaminated media and concerns typically addressed at cleanup sites. 
Currently, large volumes of contaminated media are subject to

[[Page 19438]]

hazardous waste requirements, notably LDR, MTR and permitting, that 
were originally designed for newly generated or process wastes, where 
the concerns are different from those at cleanup sites.
    More broadly, EPA is also proposing to exempt some contaminated 
media from RCRA Subtitle C hazardous waste management requirements. 
This reform would allow authorized states or EPA to determine 
contaminated media management standards for those exempted media on a 
site-specific basis. EPA is considering two exemption options. First, 
EPA is considering exempting media by determining, often based on 
management conditions, that the media do not contain hazardous wastes 
(this is commonly known as the ``contained-out'' approach); second, EPA 
is considering exempting media only if certain conditions were met 
(this is commonly known as the ``conditional exclusion'' approach). 
Under the options that would exempt only some contaminated media from 
hazardous waste management requirements, EPA is proposing to use a set 
of constituent concentrations known as a ``Bright Line'' to divide the 
media that would and would not be eligible for exemption. Media with 
concentrations of constituents below Bright Line concentrations would 
be eligible for exemption; media with constituent concentrations above 
the Bright Line would not be eligible. Finally, in the HWIR-Media 
proposal, EPA is requesting comment on exempting all cleanup wastes, 
including contaminated media, sludges, debris, and other wastes managed 
during the course of a cleanup, based on a conditional exclusion. Under 
this option, authorized states or EPA would set all management and 
treatment requirements for cleanup wastes on a site-specific basis.
    The HWIR-Media proposal in particular will complement the Subpart S 
Initiative by potentially providing program implementors with the 
flexibility to tailor requirements for management of contaminated media 
to the risks posed by any given medium and the circumstances at any 
given corrective action facility.
2. Post-Closure Rule
    EPA has long recognized the need to more effectively integrate 
corrective action and closure activities. Toward this end, the Agency 
proposed a rule entitled ``Standards Applicable to Owners and Operators 
of Closed and Closing Hazardous Waste Management Facilities; Post-
Closure Permit Requirement; Closure Process; State Corrective Action 
Enforcement Authority'' (59 FR 55778, November 8, 1994). In this 
notice, the Agency proposed revisions to the current requirements 
applicable to facilities with closed and closing land disposal units, 
and revisions to the requirements for state authorization for 
corrective action. These provisions, described in more detail below, 
were proposed as part of the Agency's efforts to create a consistent 
approach to cleanups at RCRA facilities.
    a. The Post-Closure Permit Requirement. The current regulations at 
40 CFR Part 270.1(c) require owners and operators of surface 
impoundments, landfills, land treatment units, and waste pile units 
that received wastes after July 26, 1982, or that certified closure 
after January 26, 1983 to obtain a post-closure permit for the 
facility, unless they demonstrate closure by removal at those units. 
For facilities that did not receive an operating permit, and closed 
under interim status standards, this post-closure permit serves to 
impose several critical statutory and regulatory requirements, 
including the requirements for corrective action.
    The November 8, 1994 proposal would allow a regulatory agency 
(e.g., EPA or an authorized state) to address these facilities using 
the best available regulatory or enforcement authority, instead of 
requiring that agencies issue post-closure permits in all cases. While 
the proposal would not otherwise modify the applicable cleanup 
requirements at these facilities, it would remove the requirement that 
they be imposed through the post-closure permitting process. Under the 
proposal, a regulatory agency could require post-closure care 
(including corrective action) at the facility under an enforcement 
mechanism, a state cleanup authority, or Federal Superfund authority. 
This flexibility contributes to the Agency's efforts in the Subpart S 
Initiative.
    b. Applicability of 40 CFR Parts 264 and 265 to Regulated Units 
Requiring Corrective Action. Under the current regulations, the 
requirements that apply to closed and closing land disposal units 
depend on their legal status. Regulated units, defined in 40 CFR 264.90 
as surface impoundments, waste piles, land treatment units, or 
landfills that received waste after July 26, 1982, are subject to the 
fairly specific closure, post-closure, financial assurance, groundwater 
monitoring and corrective action requirements of 40 CFR Parts 264 and 
265. Non-regulated solid waste management units are not subject to 40 
CFR Parts 264 and 265; consequently, environmental risks at those units 
are determined and addressed on a site-specific basis through the 
corrective action process.
    Despite this regulatory distinction, these units are often 
indistinguishable in terms of environmental risk. EPA is concerned that 
this dual regulatory scheme can, in some cases, limit its authority to 
determine the best remedy at regulated units. In the November 8, 1994 
proposal, the Agency expressed this concern, and solicited comment on 
whether the regulations should be modified to give overseeing agencies 
the discretion to remove or modify all or part of the Part 264 and 265 
requirements described above at a facility that is undergoing cleanup 
using the RCRA corrective action process.
    c. State Corrective Action Enforcement Authority. Under the current 
Federal authorization process, states are required to obtain 
authorization for implementing provisions of HSWA, such as Section 
3004(u), to address corrective action at permitted facilities. However, 
states have never been required to obtain authority to address 
corrective action at interim status facilities. On November 8, 1994, 
EPA proposed that states be required to upgrade their judicial or 
administrative enforcement authority to respond to releases of 
hazardous waste or hazardous constituents at interim status facilities 
as provided by Section 3008(h). This provision was designed to provide 
consistent and complete delegation of the corrective action program to 
states.
    EPA is completing its review of comments on the proposed provisions 
and plans to proceed with promulgation of the final rule in the near 
future.
3. RCRA Statutory Reform
    On March 16, 1995 the President committed to identify high cost, 
low benefit provisions of the Resource Conservation and Recovery Act 
(RCRA) for legislative reform. After an extensive stakeholder outreach 
process, the Administration selected two issues. The first issue for 
legislative reform, an exemption for certain low risk wastes from 
costly regulation under RCRA's land disposal restrictions program, was 
signed into law--the Land Disposal Flexibility Act--by the President on 
March 26, 1996.
    The second topic identified for legislative reform was the 
application of RCRA hazardous waste management requirements to cleanup 
wastes. The Administration currently is discussing with stakeholders 
and Congress the possible development of bipartisan legislation to 
expedite the safe and cost-effective management of cleanup wastes that 
are currently subject to RCRA

[[Page 19439]]

hazardous waste management requirements. In addition to RCRA cleanup 
sites, the type of reform being discussed would benefit site cleanups 
under Superfund, Brownfield and State voluntary programs.
4. Improvements to the Procedures for Authorization of State Hazardous 
Waste Program Revisions
     Under RCRA Section 3007, EPA is charged with authorizing 
equivalent state hazardous waste programs including corrective action 
programs. Authorized states administer and enforce the RCRA program 
within the state in lieu of the Federal program (see 40 CFR Part 271); 
authorized states have primary enforcement responsibility, although EPA 
retains enforcement authority under RCRA sections 3008, 7003, and 3013.
    Following their initial authorization, states are required to 
periodically revise their hazardous waste programs to remain equivalent 
to the Federal program. Since EPA is continually revising the RCRA 
program in response to statutory changes, court ordered deadlines and 
evolving priorities, states are continually updating their authorized 
programs. Preparation, review and approval of changes to authorized 
state hazardous waste programs represents a significant workload for 
states and EPA. In addition, states have often expressed the concern 
that EPA review of changes to authorized hazardous waste programs is 
too detailed, resource intensive, and time consuming. To increase the 
pace and efficiency of authorization of state program revisions and 
respond to state concerns, EPA proposed changes to the regulations for 
processing state program revision applications in the Land Disposal 
Restrictions Phase IV rule (60 FR 43654, August 22, 1995). Additional 
provisions to streamline authorization of state program revisions are 
under consideration for inclusion in the HWIR-Media rule, currently 
under development. Improvements proposed in the LDR Phase IV rule and 
under consideration for the HWIR-Media rule include: creating a tiered 
approach to tailor authorization to the complexity and impact of the 
program revisions at issue; increasing reliance on state 
certifications; and placing more emphasis on time-frames for processing 
of authorization applications. Improvements to the procedures for state 
program revisions would apply to all state program revisions, including 
revisions made necessary by promulgation of corrective action 
regulations.
5. Superfund Reauthorization
    As a general philosophy, EPA believes that the RCRA and CERCLA 
remedial programs should operate consistently and result in similar 
environmental solutions when faced with similar circumstances. 
Currently, Congress is considering legislation to reauthorize CERCLA. 
If CERCLA is amended, EPA believes that parallel changes in the 
corrective action program should generally be adopted. Changes to the 
CERCLA program which might impact the RCRA corrective action program 
include new approaches to setting cleanup standards and factoring risk 
into remedial decision making.
6. Superfund Administrative Improvements and Reforms
    Independent of reauthorization of the CERCLA statute, EPA's 
Superfund program has undertaken a number of administrative initiatives 
to streamline the Superfund program and increase the fairness, 
effectiveness, and efficiency of CERCLA cleanups. Several of the 
proposals developed as part of the administrative reform and 
improvement efforts also apply to RCRA cleanups, as discussed below.
    a. Guidance on Land Use. On May 25, 1995, EPA issued a Directive 
titled, ``Land Use in the CERCLA Remedy Selection Process.'' The 
directive has two primary objectives. First, to promote early 
discussions between EPA and local land use planning authorities, local 
officials, and the public regarding reasonably anticipated future land 
uses. Second, to promote the use of the information from those 
discussions to formulate realistic assumptions regarding future land 
use, and to clarify how land use assumptions influence risk assessment, 
development of remedial alternatives, and remedy selection.
    The directive was developed primarily to address land use 
considerations under the CERCLA program; however, the principle of 
early and complete involvement of stakeholder groups to develop 
realistic land use assumptions is equally applicable to the RCRA 
corrective action program. EPA recognizes that RCRA facilities are 
often industrial properties that are actively managed, rather than the 
abandoned sites typically addressed under CERCLA. Because of this 
consideration, the directive stated that non-residential use 
considerations might be especially appropriate at many RCRA corrective 
action facilities. Consideration of non-residential land use in RCRA 
corrective actions was addressed in the 1990 proposal and is discussed 
further in Sections III.C.5.j and V.E.1 of today's Notice.
    b. Soil Screening Guidance. In December 1994, EPA issued a draft 
``Superfund Soil Screening Guidance,'' (SSG) for public review and 
comment. The SSG was developed to accelerate decision making at CERCLA 
and other cleanup sites by focusing investigations on exposure pathways 
and contaminated areas of concern and eliminating certain pathways, 
areas, and contaminants not of concern from more detailed assessments. 
The SSG provides a framework for developing site-specific screening 
levels for residential-based exposure scenarios.
    Specific soil screening levels (SSLs), derived in accordance with 
the SSG, are defined as contaminant concentrations in soil below which 
no further action or study would generally be warranted under CERCLA. 
They are not intended to be cleanup levels. According to the SSG, where 
soil contaminant concentrations equal or exceed SSLs, further 
assessment, but not necessarily a cleanup, would likely be warranted.
    EPA is evaluating comments on the draft guidance and intends to 
issue final soil screening guidance in the near future. The Agency 
anticipates that the SSG may also be used to develop action levels for 
certain RCRA corrective action facilities. For more information on the 
role of action levels during corrective actions, see Section III.C.2.e 
of today's Notice.
    c. Presumptive Remedies. The Superfund program began developing 
presumptive remedy guidance in 1991, to use past experience to 
streamline cleanups. Presumptive remedies are preferred technologies 
for common categories of sites, based on historical patterns of remedy 
selection and EPA's scientific and engineering evaluation of 
performance data on technology implementation. The Agency expects that 
presumptive remedies will be used at all appropriate sites, including 
RCRA facilities, to help ensure consistency in remedy selection and 
implementation and to reduce the cost and time required to investigate 
and remediate similar types of sites. Several presumptive remedy 
guidance documents are available and have been placed in the docket for 
today's Notice, including: Presumptive Remedies: Policies and 
Procedures; Presumptive Remedy for CERCLA Municipal Landfill Sites; 
Presumptive Remedies: Site Characterization and Technology Selection 
for CERCLA Sites with Volatile Organic Compounds in Soils; and, 
Presumptive Remedies for Soils, Sediments and Sludges at Wood Treating 
Sites. Future presumptive

[[Page 19440]]

remedy guidance documents may address sites with groundwater 
contamination, sites contaminated with polychlorinated biphenyl 
compounds (PCBs), and manufactured gas sites.
    d. Community Based Remedy Selection. In an effort to increase 
community involvement, EPA plans to pilot a new community-based 
Superfund remedy selection process. Under this process, EPA will assist 
community groups, local governments and other stakeholders in 
developing consensus and becoming more directly involved in remedy 
selection at select Superfund sites.
    During the first half of fiscal year 1996, EPA will develop 
guidelines and options for community-based remedy selection pilot 
programs at specific sites. These pilot programs will empower affected 
parties to play a direct role in finding a protective, cost-effective 
remedy for a Superfund site in their community, inform affected parties 
of the applicable statutory and regulatory requirements, and improve 
community understanding and acceptance of Superfund remedies. EPA will 
use the results of the Superfund community-based remedy selection pilot 
programs as it works to improve public participation at RCRA corrective 
action facilities.
7. Brownfields Initiative
    EPA developed the Brownfields Economic Redevelopment Initiative to 
help communities revitalize abandoned, idled, or under-used industrial 
and commercial sites where expansion or redevelopment is complicated by 
environmental contamination. Through the Brownfields Action Agenda, the 
Agency committed to fund up to 50 Brownfield Pilot Programs to explore 
brownfield characterization and redevelopment strategies at the local 
level. The brownfields pilots will test redevelopment models, direct 
special efforts toward removing regulatory barriers without sacrificing 
protectiveness, and facilitate coordinated environmental cleanup 
efforts at the Federal, state and local levels. The Pilots are intended 
to provide EPA, states, tribes, municipalities, and communities with 
useful information and strategies as they continue to seek new methods 
to promote a unified approach to site assessment, environmental 
cleanup, and redevelopment. To date, EPA has awarded 40 pilots.
    EPA anticipates that many approaches to cleanup and site 
redevelopment evolving from the Brownfields Initiative will have direct 
application to the corrective action program and the Subpart S 
Initiative.
8. Environmental Justice
    Executive Order 12898, ``Federal Action to Address Environmental 
Justice in Minority Populations and Low-Income Populations,'' directs 
each Federal Agency to ``. . . make achieving environmental justice 
part of its mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health and environmental 
effects of its programs, policies and activities on minority 
populations and low income populations.'' In response to the Executive 
Order and to concerns voiced by many groups outside the Agency, EPA 
issued a Directive on September 21, 1994 which required that 
environmental justice issues be considered at all stages of policy, 
guidance and regulation development.
    EPA has identified four main areas of environmental justice 
concerns within the Subpart S Initiative: (1) outreach to stakeholders, 
including members of affected communities, during the rulemaking 
process; (2) public participation on a site-specific level during the 
corrective action process; (3) public participation in future land-use 
and associated remedial decisions; and (4) ensuring the continued 
effectiveness of any institutional controls. The Agency recognizes that 
discussions of streamlining, such as those in today's Notice, often 
raise concerns in environmental justice communities. The Agency remains 
committed to identifying and addressing environmental justice concerns 
and to expanding public participation in the corrective action process, 
and would welcome the involvement of the environment justice community 
in development of the Subpart S Initiative.
9. Permits Improvement Team
    In July 1994, EPA organized a group of state, tribal and local 
government officials to examine and propose improvements to EPA's 
permit programs. This group is known as the Permits Improvement Team. 
The Permits Improvement Team is examining ways to streamline the 
permitting process, exploring alternatives to individual permits, and 
evaluating ways to enhance public participation in permitting. For RCRA 
corrective action, the emphasis is on addressing RCRA and non-RCRA 
facilities in order of environmental priority, rather than having a 
state's priorities skewed by the RCRA permit process. For example, the 
RCRA permit could include a general provision to require compliance 
with the state's existing environmental cleanup program. Any changes to 
the RCRA permitting program that result from the Permits Improvement 
Team's efforts will be considered as EPA implements the Subpart S 
Initiative.

III. Corrective Action Implementation

    As discussed in Section II of today's Notice, EPA generally uses 
the 1990 corrective action proposal, supplemented by later guidance, as 
a guideline for corrective action implementation. The 1990 proposal was 
intended to support a flexible approach to corrective action. 
Unfortunately, EPA believes the proposal has at times been interpreted 
too narrowly, and much of the intended flexibility has been under used. 
In addition, the nature of the corrective action program and some of 
EPA's positions have evolved since 1990.
    For the benefit of those involved with the corrective action 
program, and to provide context for the requests for comment in Section 
V of today's Notice, this section provides a general status report on 
the corrective action program, and how it has evolved since the 1990 
proposal and includes guidance on a number of topics not fully 
addressed in 1990. It also emphasizes the flexibility inherent in the 
current corrective action program and encourages program implementors 
and facility owners/operators to take advantage of this flexibility to 
improve the corrective action process and expedite cleanups.

A. Program Management Philosophy

    More than 5,000 facilities are subject to RCRA corrective action, 
over three times the number of sites on CERCLA's National Priorities 
List (NPL). The degree of investigation and subsequent corrective 
action necessary to protect human health and the environment varies 
significantly across these facilities. Some facilities may require no 
cleanup at all or only minor corrective action, while others are as 
complex and highly contaminated as any Superfund site. To account for 
the variety of corrective action facilities and site-specific 
circumstances, EPA has emphasized a flexible, facility-specific 
approach to corrective action. Few cleanups will follow exactly the 
same course; therefore, program implementors and facility owners/
operators must be allowed significant latitude to structure the 
corrective action process, develop cleanup objectives, and select 
remedies appropriate to facility-specific circumstances. At the same 
time, a number of basic operating principles

[[Page 19441]]

guide corrective action program implementation and development.
(1) Corrective Action Decisions Should Be Based on Risk
    As in most EPA programs, the Agency's fundamental goal in the 
corrective action program is to control or eliminate risks to human 
health and the environment. Risk-based decision making is especially 
important in the corrective action program, where it should be used to 
ensure that corrective action activities are fully protective given 
reasonable exposure assumptions and consistent with the degree of 
threat to human health and the environment at a given facility.
(2) Program Implementation Should Focus on Results
    The purpose of the corrective action program is to stabilize 
releases and clean up RCRA facilities in a timely manner, not to ensure 
compliance with or fulfillment of a standardized process. Program 
implementors and facility owners/operators should focus on 
environmental results rather than process steps and ensure that each 
corrective action related activity at any given facility directly 
supports cleanup goals at that site. In focusing on results, program 
implementors are encouraged to use innovative approaches to management 
and oversight.
(3) Interim Actions and Stabilization Should Be Used To Reduce Risks 
and Prevent Exposures
    A primary implementation strategy of the corrective action program 
is to focus resources first on stabilizing continuing releases and 
controlling exposure at facilities undergoing corrective action. Once a 
facility is stabilized, Agency oversight at that facility can be 
reduced and resources shifted to other facilities of concern. By 
focusing on stabilizing many facilities, rather than pursuing a final 
cleanup at a few facilities, EPA can achieve a greater overall level of 
human health and environmental protection in the near-term.
(4) Activities at Corrective Action Facilities Should Be Phased
    Significant efficiencies can be gained by phasing corrective action 
at individual facilities to focus on areas of the facility that 
represent the greatest risk to human health and/or the environment. 
Phasing allows information obtained from previous phases to be used for 
planning and refining subsequent investigations or responses. Using a 
phased approach, response actions can be taken at some high-priority 
areas of the facility while other lower-priority areas are addressed at 
a later time.
(5) Program Implementation Should Provide for Meaningful Inclusion of 
All Stakeholders
    EPA is committed to including all stakeholders in the corrective 
action process. Stakeholders are included in both facility-specific 
decision making through public participation activities and in the 
development of the national corrective action program. The Agency 
believes stakeholder involvement is essential in all corrective action 
cleanups, regardless of the oversight mechanism used (e.g., order, 
permit, state authority, voluntary action).
(6) Corrective Action Obligations Should Be Addressed Using the Most 
Appropriate Tool for Any Given Facility
    EPA recognizes that there are many mechanisms or tools which can be 
used to ensure appropriate corrective action at any given facility, 
including RCRA orders or permits, state cleanup orders, and voluntary 
cleanup programs. Each mechanism has advantages and disadvantages when 
applied to individual facilities. Program implementors and facility 
owners/operators should carefully consider these advantages and 
disadvantages when choosing a corrective action mechanism.
(7) States Will Be the Primary Implementors of the Corrective Action 
Program
    Since corrective action requirements will be, predominantly, 
implemented by states, EPA is committed to full and meaningful state 
involvement in development of corrective action implementation 
strategies, policy, guidance and regulations.

B. Scope and Definitions

    Corrective action requirements apply at hazardous waste treatment, 
storage and disposal facilities (TSDFs). These include permitted 
facilities and facilities that have, have had, or should have had RCRA 
interim status. This collection of facilities is typically referred to 
as the ``corrective action universe.'' Corrective action may be 
required for releases of hazardous waste or hazardous constituents from 
these facilities, as necessary to protect human health and the 
environment. EPA does not generally require corrective action at 
facilities which are issued land treatment demonstration permits, 
emergency permits, permits-by-rule for ocean disposal, or research, 
development and demonstrations permits unless these facilities 
otherwise become subject to RCRA operating or post-closure permitting 
requirements.
    The 1990 proposal established EPA's views on the scope and 
applicability of RCRA corrective action authorities. Although EPA's 
views have largely remained unchanged in this area, there have been 
several important refinements or developments, as discussed below.
1. Concept of Parity
    Most facilities in the RCRA corrective action universe are 
potentially subject to cleanup under numerous cleanup authorities, 
including state or Federal Superfund authorities. The potential for 
overlapping application of these authorities can cause confusion and 
concern in the regulated community and among state and Federal 
regulators. In the 1990 proposal, EPA stated that one of the Agency's 
primary objectives was ``to achieve substantial consistency with the 
policies and procedures'' of the Superfund remedial program. The logic 
behind this concept is that, since both programs address cleanup of 
potential and actual releases, both programs should arrive at similar 
remedial solutions. EPA's position is that any procedural differences 
between RCRA and CERCLA should not substantively affect the outcome of 
remediation.
    Generally, cleanup of any given site or area at a facility under 
RCRA corrective action or CERCLA will substantively satisfy the 
requirements of both programs. We believe that, as a general matter, 
RCRA and CERCLA program implementors can defer cleanup activities from 
part or all of a site to one program with the expectation that no 
further cleanup will be required under the other program. For example, 
when investigations or studies have been completed under one program, 
there should be no need to review or repeat those investigations or 
studies under another program. Similarly, a remedy that is acceptable 
to one program can be presumed to meet the standards of the 
other.3 The same principle should apply to authorized state 
corrective action programs and state CERCLA analogous programs. Over 
half the states have Superfund-like authorities. In some cases, these 
authorities may be substantively equivalent in scope and effect to the 
Federal CERCLA program, and therefore are likely to be substantially 
equivalent to the RCRA corrective action program.
---------------------------------------------------------------------------

    \3\ In some cases specific releases or constituents are not 
``solid wastes'' under RCRA. For example, RCRA excludes from the 
definition of solid waste certain source, special nuclear, or 
byproduct material as defined by the Atomic Energy Act 42 U.S.C. 
Sec. 2011.

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[[Page 19442]]

    EPA emphasized the concept of parity in a recently issued policy 
for deleting RCRA facilities from the NPL and deferring their cleanup 
to the RCRA corrective action program (60 FR 14641), available in the 
docket for today's Notice.4 EPA is planning to issue additional 
guidance on RCRA and CERCLA parity in an upcoming policy memo, 
``Coordination of RCRA/CERCLA Activities'' and through the inter-agency 
and state ``Lead Regulator Workgroup.''
---------------------------------------------------------------------------

    \4\ The RCRA deletion policy does not pertain to Federal 
Facilities, even if such facilities are also subject to RCRA 
Corrective Action; however, program implementors and facility 
owners/operators are encouraged to use interagency agreements to 
eliminate duplication of effort, including oversight, at Federal 
facilities.
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2. Voluntary Cleanup
    EPA strongly encourages voluntary corrective actions. As discussed 
in the 1990 proposal, voluntary cleanups have a number of advantages, 
including timeliness, flexibility, and efficient use of facility owner/
operator and Agency resources. Unfortunately, representatives of the 
regulated community have, on occasion, complained that procedural 
barriers have delayed cleanups they were willing to undertake 
voluntarily. Over the last few years, EPA and the states have taken 
significant steps to address this concern and to further encourage and 
facilitate voluntary actions. For example, EPA is planning to issue 
guidance on the use of state voluntary cleanup programs to address 
contamination at sites that may be subject to cleanup under the 
Comprehensive Environmental Response, Compensation, and Liability Act 
including hazardous waste generators, unregulated by RCRA corrective 
action requirements. The Guidance for Development of Memoranda of 
Agreement (MOA) Language Concerning State Voluntary Cleanup Programs is 
being developed in partnership with interested states and will outline 
general principles which EPA will use when deciding whether to endorse 
a state voluntary cleanup program and to assure private parties that 
subsequent Federal action under CERCLA will not be taken except under 
limited circumstances.
    The same general principles established in the CERCLA MOA guidance 
may apply to the use of state voluntary cleanup programs at facilities 
subject to RCRA corrective action; however, because of distinctions in 
statutory requirements, consideration of additional factors may be 
required of those programs. Issues associated with voluntary cleanups 
at facilities subject to RCRA corrective action, including the use of 
state voluntary cleanup programs, are discussed in Section V.D.3 of 
today's Notice.
3. Definitions
    The 1990 proposal included definitions for a number of terms which 
help to further define the applicability of RCRA corrective action. 
Pending final action on the proposal, EPA has generally continued to 
interpret these terms consistently with the proposal; however, as EPA 
has gained experience with applications in particular cases, it has 
refined its interpretations in some respects. The following discussion 
highlights the way in which these issues have been addressed in some 
specific situations (e.g., cases decided by the EPA Environmental 
Appeals Board (EAB)).
    a. Facility. Under RCRA Sec. 3004(u), corrective action is required 
for releases form solid waste management units at facilities seeking 
RCRA permits. The 1990 proposal defined ``facility'' as ``all 
contiguous property under the control of the owner or operator seeking 
a permit under Subtitle C of RCRA.'' This definition was finalized when 
the rule on corrective action management units (CAMUs) was promulgated 
(58 FR 8658, February 16, 1993) and is now codified at 40 CFR 260.10. 
For reasons discussed in the 1990 proposal, the term ``facility'' for 
corrective action purposes is separate and substantively different from 
the facility definition for other RCRA purposes.
    A number of issues continue to arise regarding the application of 
the facility definition. A common issue is whether or not a certain 
parcel is considered ``contiguous'' for purposes of the corrective 
action facility definition. One such situation is the case of two 
parcels under common ownership but separated by a road or public right 
of way. In the 1990 proposal, EPA indicated it would interpret such 
parcels to constitute a single facility for purposes of corrective 
action. This approach was recently accepted by the EAB, which held that 
two parcels were a single facility where they were separated by a 
privately owned railroad line (In re Exxon Co., USA, RCRA Appeal No. 
94-8 (EAB May 17, 1995)).
    Another common scenario involves two geographically separated 
parcels under common ownership that are connected by ditches, bridges, 
or other links under the control of the facility owner/operator. In the 
Exxon permit appeal, the EAB noted the fact that the two parcels (which 
it found to be ``contiguous'' in any case) were also connected by a 
sewer system collecting waste water from different parts of the 
facility. It pointed out that in an earlier case, evaporation ponds 
three miles from a refinery were treated as part of the same facility 
because they were linked to the refinery by a drainage ditch controlled 
(although not owned) by the same party. (See, In re Navajo Refining 
Co., RCRA Appeal No. 88-3 (Adm'r June 27, 1989)). In a separate final 
RCRA section 3008(h) order, EPA has determined that two parcels on 
opposite sides of a river, but connected by a trestle, constitute a 
single facility for corrective action purposes. (See, In re Sharon 
Steel Corp., Docket No. RCRA III-062-CA (Region III).)
    The 1990 proposal requested comment on how the definition of 
facility should apply where a large parcel is owned by one party who 
leases a small portion to another party for a RCRA-permitted facility. 
In the proposal, EPA indicated that it would consider corrective action 
requirements to extend to SWMUs throughout the larger parcel. At the 
same time, EPA recognizes that there are differing views as to the 
policy merits of this interpretation and invites further comment in 
section V.C.2 of today's Notice.
    b. Release. The definition of release for corrective action was 
first discussed in the 1985 HSWA codification rule (50 FR 28702, July 
15, 1985). In the 1985 rule, EPA wrote that the definition of release 
for corrective action should, at a minimum, be as broad as the 
definition of release under CERCLA. Accordingly, EPA has interpreted 
the term release to mean ``any spilling, leaking, pumping, pouring, 
emitting, emptying, discharging, injecting, escaping, leaching, dumping 
or disposing into the environment.'' (See, 50 FR 28713, July 15, 1985.) 
In the 1990 proposal, EPA clarified that the definition of release also 
includes abandoned or discarded barrels, containers, and other closed 
receptacles containing hazardous wastes or constituents and that it 
could include releases that are permitted under other authorities, such 
as the Clean Water Act. EPA continues to adhere to these 
interpretations of the term ``release.''
    c. Solid Waste Management Unit. In 1990, EPA proposed to define the 
term ``solid waste management unit'' or ``SWMU'' to mean, ``Any 
discernible unit at which solid wastes have been placed at any time, 
irrespective of whether the unit was intended for the management of 
solid or hazardous waste. Such units include any area at a facility at 
which solid wastes have been routinely and systematically released.'' 
Pending resolution of the 1990 proposal, EPA has used this definition 
in

[[Page 19443]]

corrective action implementation. The inclusion of units not 
specifically intended for the management of solid or hazardous waste is 
supported by the legislative history of RCRA sections 3004 (u) and (v), 
and this point has been applied in decisions by the EAB. (See, e.g., In 
re General Motors Corp., RCRA Appeal No. 90-24 (EAB Nov. 6, 1992).)
    As discussed in the 1990 proposal, not all areas where releases 
have occurred are considered SWMUs. In the 1990 proposal, EPA indicated 
a one-time spill which had been adequately cleaned up would not 
constitute a SWMU; on the other hand, a location at which wastes or 
other materials were released in a routine and systematic manner (such 
as a loading area where minor spills or leaks occurred routinely over 
time) would be a SWMU. The 1990 proposal indicated that industrial 
sewers used for collecting wastes would constitute SWMUs. This 
interpretation, which was based in part on earlier decisions in permit 
appeals, has been affirmed by the EAB in In re Amoco Oil Co., RCRA 
Appeal No. 92-21 (EAB Nov. 23, 1993).
    The definition of a SWMU is often a point of disagreement when 
corrective action permits or orders are issued. Facility owners/
operators and representatives of the regulated community often argue 
that Congress intended the RCRA corrective action program to be focused 
on waste management units (i.e., SWMU) and that non-waste-management 
related releases (e.g., spills) should be addressed by other cleanup 
programs or authorities. EPA notes that authority exists for requiring 
corrective action for releases that are not attributable to SWMUs. 
Given the legislative history of RCRA section 3004(u), which emphasizes 
that RCRA facilities should be adequately cleaned up, in part, to 
prevent creation of new Superfund sites, EPA believes that corrective 
action authorities can be used to address all unacceptable risks to 
human health or the environment from RCRA facilities. In the permitting 
context, remediation of non-SWMU related releases may be required under 
the ``omnibus'' authority (see 40 CFR 270.32(b)(2)) which allows EPA to 
impose such permit conditions as are necessary to protect human health 
and the environment. In other contexts, orders under RCRA sections 
3008(h) or 7003 may require remedial action to address releases 
regardless of whether a SWMU is present. Therefore, extended debate or 
litigation over a particular SWMU designation will in many cases be 
unproductive for all parties and, as a general principle, EPA 
discourages debate on these issues, believing that discussions should 
more properly focus on whether there has been a release that requires 
remediation.
    To reflect a more holistic approach, permits and orders often use 
the term ``area of concern'' to refer to releases which warrant 
investigation or remediation under the authorities discussed above, 
regardless of whether they are associated with a specific SWMU as the 
term is currently used. For example, when an overseeing agency believes 
one-time spills of hazardous waste or hazardous constituents have not 
been adequately cleaned up, these releases are often addressed as areas 
of concern.
    d. Hazardous Waste and Hazardous Constituent. RCRA section 3004(u) 
requires corrective action for releases of ``hazardous wastes or 
constituents.'' As discussed in the 1990 proposal, EPA interprets the 
term ``hazardous waste,'' as used in RCRA section 3004(u) to include 
all wastes that are hazardous within the statutory definition in RCRA 
section 1004(5), not just those that are either listed or identified by 
EPA pursuant to RCRA section 3001.
    EPA also used the 1990 proposal to discuss use of the phrase ``or 
constituents'' in RCRA section 3004(u). EPA views this phrase as 
significant in two ways. First, it indicates that Congress was 
particularly concerned that, within the broad category of wastes that 
might be ``hazardous'' within the statutory definition, the corrective 
action authority should be used to address the specific subset of 
``hazardous constituents.'' Second, it indicates that the corrective 
action authority was not intended to be limited to hazardous waste, and 
extends to hazardous constituents regardless of whether they also fall 
within the term ``hazardous waste,'' or whether they were derived from 
hazardous waste. Under this interpretation, constituents that were 
contained within nonhazardous solid wastes may be addressed through 
corrective action.

C. Corrective Action Process

    The corrective action process discussed in the 1990 proposal was 
structured around five elements common to most cleanup activities: 
initial site assessment, site characterization, interim actions, 
evaluation of remedial alternatives, and implementation of the selected 
remedy. These elements typically occur, to one degree or another, 
during most cleanups. As discussed in the 1990 proposal, EPA emphasizes 
that no one approach to implementing these cleanup elements is likely 
to be appropriate for all corrective action facilities; therefore, a 
successful corrective action program must be procedurally flexible. In 
addition, these cleanup elements should not become ends in themselves; 
EPA continues to encourage program implementors and facility owners/
operators to focus on the desired result of a cleanup rather than a 
mechanistic cleanup process. These five elements should be viewed as 
evaluations necessary to make good cleanup decisions, not prescribed 
steps along a path.
1. Initial Site Assessment
    The first element in most cleanup programs is an initial site 
assessment. During the initial site assessment information is gathered 
on site conditions, releases, potential releases, and exposure pathways 
to determine whether a cleanup may be needed and to identify areas of 
potential concern. Overseeing agencies may also use initial site 
assessments to set relative priorities between sites and allocate 
oversight and other resources.
    In the CERCLA program, the initial site assessment is called a 
Preliminary Assessment/Site Investigation, or PA/SI; in the corrective 
action program, it is referred to as a RCRA Facility Assessment or RFA. 
During an RFA, an overseeing agency typically compiles existing 
information on environmental conditions at a given facility and, as 
necessary, gathers additional facility-specific information on solid 
waste management units and other areas of concern, releases, potential 
releases, release pathways, and receptors. Information gathered during 
an RFA usually forms the basis for initiating full scale site 
characterization
    a. Facility Owners/Operators May Gather RFA Information. At the 
time to today's Notice, EPA and the states have completed 3,534 RFAs at 
RCRA facilities. In the past, EPA has been reluctant to allow facility 
owners/operators to conduct RFAs because of concern over the adequacy 
of the facility submissions; however, by now the RFA is a well 
developed process and EPA believes it may be more reasonable to accept 
the work of facility owners/operators. Where RFAs have not yet been 
completed, facility owners/operators may choose to conduct their own 
site assessment and submit the report to EPA for review. If EPA 
believes the site assessment is adequate, the site assessment may be 
approved and adopted as the RFA for the facility. In the same way, when 
an RFA was completed some years ago, a facility owner/operator might 
conduct a site assessment to update the RFA and submit it to EPA for 
review, approval

[[Page 19444]]

and adoption as an RFA update. Facility owners/operators who choose to 
conduct or update their own RFAs should ensure that they address all 
solid waste management units and other areas of concern at the 
facility. Guidance on the scope of RFAs is available in ``RCRA Facility 
Assessment (RFA) Guidance'' EPA/530/SW-86/053, PB87-107769, October 
1986, which has been placed in the docket for today's Notice. Facility 
owners/operators who want to obtain a copy of the RFA conducted for 
their facility should contact the appropriate EPA Regional Office or 
their authorized state.
    b. Release Assessment. Release assessments (sometimes referred to 
as Phase 1 assessments) are used to confirm or reduce uncertainty about 
solid waste management units, areas of concern, and potential releases 
identified during the initial site assessments. Under the corrective 
action process as originally conceived, program implementors and 
facility owners/operators would typically move directly from the 
initial site assessment to full scale site characterization. As program 
implementors and facility owners/operators have gained experience in 
corrective action implementation, they have often found it advantageous 
to conduct a limited release assessment after the RFA but before full 
scale site characterization, to focus subsequent investigations or 
eliminate certain units or areas from further consideration. Release 
assessments can be especially helpful in cases where the RFA is old or 
where the overseeing agency and the facility owner/operator disagree 
about inclusion of one or more units, areas, or releases in the site 
characterization.
    Information collected during a release assessment can be used to 
focus site characterizations on the areas and releases and exposure 
pathways which constitute the greatest risks or potential risks to 
human health and the environment and to eliminate areas from 
consideration during site characterization. For example, an initial 
site assessment could identify an old waste pile as a solid waste 
management unit. The facility owner/operator might present information 
showing that the waste in the pile had been removed; however, there may 
be little or no information to confirm that releases from the unit (if 
any) were adequately addressed during waste removal. The facility 
owner/operator could, during a release assessment, conduct highly 
focused sampling at the unit to confirm that releases either had not 
occurred or were adequately remediated.
    c. National Corrective Action Prioritization System. Implementing 
agencies often use initial site assessments to set priorities for 
limited oversight resources. In the corrective action program, EPA sets 
priorities using the National Corrective Action Prioritization System 
(NCAPS). NCAPS priorities are generally based on information gathered 
during the RFA. Because of the number of facilities subject to 
corrective action, the variety of facility-specific conditions, and the 
limitations on Agency oversight resources, careful prioritization is 
essential. The Agency's policy is to focus its corrective action 
resources first on facilities and areas at facilities which present the 
greatest relative risk to human health and the environment. 
Accordingly, NCAPS considers the environmental setting of a facility 
and potential receptors, actual and potential releases of hazardous 
wastes or constituents from the facility, and the toxicity of 
constituents of concern to group facilities into high, medium and low 
priority groups.
    NCAPS rankings are based on risk, but NCAPS does not involve a 
traditional site-specific risk assessment. NCAPS is a resource 
management tool that EPA and authorized states use to set relative 
priorities among corrective action sites to focus limited agency 
resources. Currently 40% of facilities subject to corrective action are 
considered high priority, 30% medium, and 30% low.
2. Site Characterization
    Before cleanup decisions can be made, some level of 
characterization is necessary to ascertain the nature and extent of 
contamination at a site and to gather information necessary to support 
selection and implementation of appropriate remedies. In the CERCLA 
program, this step is referred to as the Remedial Investigation or RI; 
in the RCRA program, the RCRA Facility Investigation or RFI.
    Carefully designed and implemented RFIs are critical to accurately 
characterize the nature, extent, direction, rate, movement, and 
concentration of releases at a given facility; this information is 
needed to determine potential risks to human health and the environment 
and support development and to implementation of corrective measures 
should they prove necessary. It can also be used to eliminate 
facilities which are shown not to present unacceptable risks from 
further consideration. A successful RFI will identify the presence, 
movement, fate, and risks associated with environmental contamination 
at a site and will elucidate the chemical and physical properties of 
the site likely to influence contamination migration and cleanup.
    The 1990 proposal outlines the types of information which may be 
required during a remedial investigation. As discussed in the 1990 
proposal, program implementors and facility owners/operators should 
gather the information necessary to support cleanup decisions; 
collection of all the information discussed in the 1990 proposal will 
not be necessary at most facilities.
    Experience in corrective action implementation has demonstrated 
that poorly focused investigations can become a drain on time and 
resources and, in some cases, unnecessarily delay remedial actions. EPA 
emphasizes that remedial investigations should be tailored to the 
specific conditions and circumstances at the facility and focused on 
the units, releases, and exposure pathways of concern. For example, in 
delineating the extent of contamination it may not be necessary to 
delineate to background concentrations in all cases. In some cases, 
information adequate to support cleanup decisions can be obtained 
through delineation to risk-based concentrations or other investigation 
endpoints. For example, an investigation endpoint might be based on the 
presence or absence of a competent confining layer rather than 
constituent concentrations.
    EPA has found a number of approaches to be particularly helpful in 
developing focused site investigations, as discussed below.
    a. Conceptual Site Models. Site investigations and remedy 
implementation are often most successful when based on a ``conceptual 
site model.'' A conceptual site model is a three-dimensional picture of 
site conditions that conveys what is known or suspected about the 
sources, releases and release mechanisms, contaminant fate and 
transport, exposure pathways and potential receptors, and risks. The 
conceptual site model is based on the information available at any 
given time and will evolve as more information becomes available. The 
conceptual site model may be used to present hypotheses that additional 
investigations could confirm or refute, to support risk-based decision-
making, and to aid in identification and design of potential remedial 
alternatives.
    The conceptual site model is not a mathematical or computer model, 
although these tools often prove helpful in visualizing current 
information and predicting future conditions. The conceptual site model 
can be

[[Page 19445]]

documented by written descriptions of site conditions and supported by 
maps, cross sections, analytic data, diagrams of the site that 
illustrate actual or potential receptors, and other descriptive tools.
    The conceptual site model is dynamic and should be tested and 
refined from the very first stages of corrective action to the point at 
which the site has been remediated and no longer presents a threat to 
human health or the environment. The RCRA Facility Assessment often 
forms the basis for the first conceptual model of the site. At this 
stage, the model should be used as a tool to compile available and 
relevant information and to identify the urgency and scope of 
subsequent investigations as well as interim actions. One use of the 
conceptual site model could be to ensure that site conditions are 
consistent with the underlying assumptions that were used to develop 
standardized action levels (see Section III.C.2.e). The model can also 
be used to support phasing of site investigations to ensure data 
collection efforts address the most important information needs. In 
addition, a conceptual site model can be a critical tool for evaluating 
remedy performance.
    More detailed guidance on the development and use of the conceptual 
site model is available in ``Guidance for Evaluating the Technical 
Impracticability of Ground Water Restoration'' (EPA/540-R-93-080). 
Additional guidance on using conceptual models will be included in the 
upcoming Soil Screening Guidance (see, Section II.F.6.b).
    b. Innovative Site Characterization Technologies. In the 1990 
proposal, EPA recommended a focused approach to site characterization 
activities. EPA continues to support data collection approaches that 
focus on information needed to support decisions. The Agency has seen 
tremendous improvements in site characterization efficiency when 
innovative approaches are used, especially those that rely on rapid 
sample collection (e.g., direct-push technologies) and on-site 
analytical techniques (e.g., sensor technologies, assay kits, field gas 
chromatography/mass spectrometry (GC/MS), X-ray fluorescence). 
Depending on the data quality objectives for a particular site, 
confirmatory laboratory analyses may also be necessary. Data quality 
objectives are discussed in Section III.C.2.c, below.
    The benefits of using innovative site characterization technologies 
are magnified when a work plan is used only to convey strategies, 
methods, data quality objectives, and general areas subject to 
investigation, and exact sample locations are left to be determined 
based on iterative on-site data collection and analysis. Some of the 
benefits of using innovative characterization techniques along with 
iterative decision-making include: Rapid sample collection and analysis 
allowing for on-site decision making and optimization of the 
investigation effort; enhanced three-dimensional understanding of the 
site because of the greater number of data points available for a given 
commitment of resources; better identification of actual or potential 
risks to human health and environmental receptors; and, more rapid 
assessment of the need for interim actions.
    Program implementors and facility owners/operators should take 
advantage of innovative characterization technologies. Likewise, EPA 
encourages implementing officials to be receptive to innovative 
approaches which can significantly improve the quality as well as the 
cost- and time-effectiveness of site characterization.
    c. Tailored Data Quality Objectives. Program implementors and 
facility owners/operators should tailor data gathering strategies to 
the purpose for which the data will be used. The overall degree of data 
quality or uncertainty that a decision maker is willing to accept is 
referred to as the Data Quality Objective (DQO) for a decision. The DQO 
is used to specify the quality of the data, usually in terms of 
precision, bias, representativeness, comparability and completeness. 
The DQO approach applies to the entire measurement system (e.g., 
sampling locations, methods of collection and handling, field analysis, 
etc.), not just to laboratory analytical operations. In general, EPA 
has found that DQOs can and should be used to ensure that environmental 
data are scientifically valid, defensible, and of an appropriate level 
of quality given the intended use for the data.
    Program implementors and facility owners/operators using innovative 
site characterization and assessment approaches should pay particular 
attention to DQOs. For example, an objective of the early stages of an 
investigation could be to identify the presence of gross contamination. 
In this context, a DQO could include a higher method detection limit 
(e.g., part per million) that could be obtained with cost-effective 
field screening technologies. In contrast, a very low method detection 
limit (part per billion or even trillion) could be an appropriate DQO 
to determine if groundwater is fit for human consumption.
    EPA encourages program implementors and facility owners/operators 
to use the DQO approach to define adequate data collection for 
corrective action decisions. EPA has found that site investigations can 
be expedited considerably when DQOs are carefully established. For 
additional information on incorporating DQOs in the decision-making 
process at RCRA facilities, see Chapter One of SW-846 (Chapter One of 
SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical 
Methods, Third Edition as amended by Update I, July 1992); ``Final 
Guidance for the Data Quality Objective Process'' EPA QA/G-4, September 
1994; and, ``Quality Assurance Project Plans for RCRA Ground-Water 
Monitoring and Corrective Action Activities'' EPA, Sylvia Lowrance and 
H. Matthew Bills, July 1993, available in the docket for today's 
Notice.
    d. Use of Existing Information to Streamline the Remedial 
Investigation. Many RCRA facility owners/operators have collected 
information on physical characteristics or on the nature and extent of 
contamination at the facility outside of the RCRA corrective action 
process. Information on site conditions may have also been obtained by 
entities other than the facility owner/operator. As a general 
principle, information that is not time dependent should not be 
collected again; EPA encourages the incorporation of pertinent existing 
information into the corrective action process. For example, many 
states have required facilities to conduct groundwater investigations 
under state laws for units that are not regulated units under RCRA; 
this information can often be easily incorporated into a corrective 
action investigation. Similarly, information collected through a state 
Superfund process is also generally of appropriate quality to be 
directly useable to support corrective action decisions.
    Information that is relevant to corrective action may exist in 
reports or formats that are not traditionally used for RCRA corrective 
action. For example, engineering boring logs may have been generated on 
the facility by local utility companies, or by the facility itself 
during building construction. Provided data and information are 
submitted in a usable format, state or Federal agencies overseeing RCRA 
corrective actions should not require adequate information to be 
recollected or reformatted.
    Facility owners/operators who are developing site characterization 
or other information independently are urged to document the quality of 
their information carefully. Thorough

[[Page 19446]]

documentation of data quality will increase its usefulness in the 
corrective action process. Use of existing information can reduce costs 
of conducting investigations and increase the speed of corrective 
action cleanups.
    To determine whether existing data is appropriate for corrective 
action decisions, the nature and quality of the information should be 
assessed in view of the goals of the corrective action investigation. 
Where DQOs have been established, existing data can be assessed against 
DQOs to determine their adequacy. For example, the DQO for a specific 
corrective action decision could be a minimum analytical detection 
limit that is considerably lower than that used in an existing study. 
In this case, non-detects in the existing data could not be used to 
justify no action; however, the existing data could be used to 
determine ``hot-spots'' and to plan a second phase study using a more 
sensitive analytical method. On the other hand, if the detection limits 
were below an acceptable risk level and no constituents were detected, 
re-sampling would not typically be required--even if more sensitive 
methods were available.
    EPA regions and states are currently incorporating existing 
information into ongoing corrective actions. If the regulatory agencies 
are aware of pertinent existing information at the time of issuance of 
a permit or order, they have the option of explicitly referencing the 
relevant information in the facility investigation requirements of the 
permit or order or, if the data are of sufficient quality and quantity, 
stating that the data fulfill site investigation needs. In some cases, 
the facility owner/operator will inform the overseeing agency of 
existing information; EPA or the states have the option of redirecting 
any investigations based upon the relevance of this information.
    e. Role of Action Levels. At certain facilities subject to 
corrective action, contamination will be present at concentrations that 
may not justify further action. For this reason, EPA has, in some 
cases, used the concept of ``action levels'' as a trigger mechanism for 
conducting additional corrective action activities (e.g., additional 
investigations, evaluation of remedial alternatives, site-specific risk 
assessments). Under this approach, contamination found in a particular 
medium below an appropriate action level would not generally be subject 
to remediation or further study.
    Action levels are health- or environmental-based concentrations 
derived using chemical-specific toxicity information and standardized 
exposure assumptions. Action levels are often established at the more 
protective end of the risk range (e.g., 10-6) using conservative 
exposure and land use assumptions; however, action levels based on less 
conservative assumptions could be appropriate based on site-specific 
conditions. For example, if the current and reasonably anticipated 
future uses of a site are industrial, an action level based on 
industrial exposure scenarios could be appropriate.
    Action levels can be developed on a facility-specific basis or can 
be taken from standardized lists. Currently, some states and EPA 
Regions have developed standardized lists of action levels or cleanup 
levels (standardized cleanup levels can serve as action levels) for 
RCRA corrective action facilities and other cleanup sites. One of the 
earlier and more widely distributed lists of action levels was 
developed by EPA and included in Appendix A of the preamble to the 1990 
proposal. Since 1990, toxicity research has progressed; accordingly, 
some of the action levels included in the 1990 proposal may no longer 
be appropriate. In addition, the action levels in the 1990 proposal 
were based on residential land-use assumptions which may not be 
appropriate at all corrective action facilities. Program implementors 
and facility owners/operators should ensure that action levels used at 
RCRA corrective action facilities reflect up-to-date toxicity 
information and that action level assumptions are consistent with the 
physical conditions and current or reasonably anticipated exposure 
assumptions at any given facility. For example, risk to ecologic 
receptors is not accounted for in the action levels included in the 
1990 proposal. If ecologic risks are a concern at a given corrective 
action facility, program implementors and facility owners/operators 
should consider developing facility-specific action levels to account 
for ecologic risk issues.
    EPA has found that action levels are most beneficial when they are 
available during the planning stages of site investigations. In the 
1990 proposal, the Agency indicated that it would be advantageous to 
include action levels in corrective action permits to give facility 
owners/operators and the public an indication of contaminant 
concentrations that would likely trigger additional study or corrective 
measures. At the same time, the Agency recognized that, in some cases, 
including action levels in corrective action permits would not be 
necessary (e.g., when available information establishes the need for an 
analysis of remedial alternatives). Program implementors and facility 
owners/operators have the flexibility to determine whether or not to 
include action levels in corrective action permits and orders.
    In Section V of today's Notice, EPA requests comments on the use of 
action levels and the role of the Federal government in promoting 
national consistency by developing, maintaining, and distributing 
action levels (as well as media cleanup levels) or standardized 
protocols for developing site-specific levels.
    f. Integration With the Evaluation of Remedial Alternatives. At 
most sites, likely remedial strategies will become clear during the 
initial site assessment and subsequent site characterization. To 
expedite the corrective action process, EPA encourages program 
implementors and facility owners/operators to focus data gathering 
during site characterization on information needed to support plausible 
remedies. This strategy is discussed more fully in Section III.C.4.a of 
today's Notice.
3. Interim Actions
    Since the 1990 proposal, EPA has increasingly emphasized the 
importance of interim actions and site stabilization in the corrective 
action program. Many cleanup programs, including RCRA and CERCLA, 
recognize the need for interim actions while site characterization is 
underway or before a final remedy is selected. Typically, interim 
actions are used to control or abate ongoing risks to human health or 
the environment in advance of final remedy selection. For example, 
actual or potential contamination of drinking water supplies might 
necessitate an interim action to provide alternative drinking water 
sources. Similarly, hazardous waste or constituents stored in poorly 
maintained or damaged drums or tanks might require an interim action to 
stabilize (e.g., by overpacking) or remove the damaged containers. The 
concept of interim actions is especially appropriate to facilities 
subject to RCRA corrective action, since many facilities in the 
corrective action universe are operating industrial facilities, where a 
final facility cleanup might not be completed for many years.
    One of EPA's overriding goals in managing the corrective action 
program is to expedite risk reduction by emphasizing early 
implementation of interim actions to control or minimize ongoing 
threats to human health or the environment. The importance of interim 
actions at RCRA corrective action facilities is further emphasized in 
the Agency's Stabilization Initiative

[[Page 19447]]

discussed in Section II.E.1 of today's Notice.
    Interim actions at RCRA facilities can include a wide range of 
activities such as source removal, installation of a pump and treat 
system, and institutional controls. In accordance with the 
Stabilization Initiative, interim actions should be employed as early 
in the corrective action process as possible, consistent with the 
environmental objective and priorities for the site; as further 
information is collected, program implementors and facility owners/
operators should continue to look for opportunities to conduct 
additional interim actions. Generally, interim actions should be 
compatible with, or a component of, the final remedy.
4. Evaluation of Remedial Alternatives
    Contamination at most cleanup sites can be addressed using a number 
of remedial alternatives, each of which would present advantages and 
disadvantages. Before choosing a cleanup approach, program implementors 
and facility owners/operators will typically analyze a range of 
alternatives and evaluate their advantages and disadvantages relative 
to site-specific conditions. In the CERCLA program the identification 
and evaluation of remedial alternatives is referred to as the 
Feasibility Study or FS; in the RCRA corrective action program, the 
Corrective Measures Study or CMS.
    The purpose of a Corrective Measures Study is to identify and 
evaluate potential remedial alternatives for facilities undergoing 
corrective action. During the CMS, program implementors and facility 
owners/operators typically evaluate one or more remedial alternatives 
based on site-specific conditions and select a preferred remedial 
alternative as the remedy. The CMS does not necessarily have to address 
all potential remedies for every corrective action facility. EPA 
advises program implementors and facility owners/operators to focus 
corrective measures studies on realistic remedies and to tailor the 
scope and substance of studies to the extent, nature and complexity of 
releases and contamination at any given facility. For example, some 
potential remedies should not be considered because they are simply 
implausible. In cases where EPA has identified a presumptive remedy 
(presumptive remedies are discussed in Section II.F.6.c of today's 
Notice), the purpose of the CMS will be to confirm that the presumptive 
remedy is appropriate to facility-specific conditions. In cases where 
EPA or a state is using performance standards or a similar approach, 
the Agency might not require submission or approval of a formal CMS at 
all. EPA continues to emphasize that it does not want studies to be 
undertaken simply for the purpose of completing a perceived step in a 
perceived process. While, for a complex site, review of a full range of 
remedial alternatives may be required, at many sites, the preferred 
remedial approach will be apparent early in the cleanup process and the 
analysis of remedial alternatives should be highly focused.
    In implementing the corrective action program, EPA has found a 
number of opportunities to significantly increase the efficiency of 
corrective measures studies, as discussed below.
    a. Integration With Site Characterization. EPA continues to 
emphasize that the components of corrective action (e.g., release 
assessment, RFI, CMS) should not be viewed as isolated steps in a 
linear process. In the Agency's experience, it is generally more 
efficient to focus data collection on information needed to support an 
appropriate, implementable remedy than to attempt to complete separate 
evaluations at each step. As remedial alternatives are considered 
during a CMS, the facility owner/operator might find additional site 
characterization necessary. Similarly, the earlier in the corrective 
action process potential remedies can be identified, the more 
effectively information gathering can be focused. For example, in a 
situation where the contamination being addressed involves a large 
mixed fill landfill, the remedial alternatives will likely involve 
physical and institutional controls. These alternatives should be 
identified early in the RFI enabling the facility owner/operator to 
tailor the RFI toward collection of information necessary to support 
development of appropriate physical controls. In other cases, a 
facility may have relatively limited soil contamination or old solid 
waste management units which the facility owner/operator desires to 
remove all contaminated material for treatment and disposal off-site. 
In these cases, the RFI might be focused on removal options and 
analysis of other alternatives would not be necessary. Other benefits 
associated with combination of the RFI and CMS can include cost savings 
associated with consolidation of reports and other documents, and time 
savings associated with concurrent rather than sequential analysis. The 
1990 proposal and the 1990 RCRA Corrective Action Plan discuss other 
situations where the CMS could be combined with site characterization, 
including:
    (1) ``Low risk'' facilities. These are facilities where 
environmental problems are relatively small and where releases present 
minimal exposure concerns. Such facilities might have limited on-site 
soil contamination;
    (2) Facilities where removal remedies have been proposed by the 
owner/operator. For example, at a facility where there is contaminated 
soil and the owner/operator proposes to excavate all the contaminated 
soil for subsequent off-site recycling, treatment or disposal;
    (3) Facilities with straightforward remedial solutions or where 
presumptive remedies, as discussed in Section II.F.6.c of today's 
Notice, can be applied. These are facilities where standard engineering 
solutions, which have proven effective in similar situations, may be 
appropriately applied;
    (4) Facilities where few remedial options are available. This 
includes situations where there are few practicable remedial solutions; 
and,
    (5) Facilities where the remedy is phased.
    b. Formal Evaluation Not Always Necessary. At some facilities the 
CMS does not have to be submitted to an overseeing agency for review 
and approval in favor of a performance-based approach. In these 
scenarios, the overseeing agency (e.g., EPA or a state) might oversee 
the facility investigation to ensure that all releases and potential 
releases from the facility are adequately identified and characterized 
and that adequate remedial goals are developed for the facility. After 
the remedial goals undergo public review and comment and are approved 
by the overseeing agency, the facility owner/operator would design and 
implement a remedy sufficient to meet the remedial goals without direct 
agency oversight.
    For example, the remedial investigation at a facility may reveal 
widespread groundwater contamination caused by a release from an old 
surface impoundment. The remedial goals for the facility might be to 
control the source contaminating the groundwater, contain the 
groundwater plume, and restore groundwater quality to specified cleanup 
levels. Media cleanup levels would be included in the remedial goal and 
the facility owner/operator would be required to conduct remedial 
activities in a manner which involves the affected public in a 
meaningful and timely way. The facility owner/operator would then 
design and implement a remedy (and a public participation plan). In 
this example, while the facility owner/operator might analyze a number 
of alternatives, the overseeing agency would not ordinarily second-
guess the

[[Page 19448]]

remedial choice (since the agency had been involved in developing the 
performance standards). Instead, the overseeing agency would monitor 
compliance with the remedial goals. If the remedial goals or milestones 
were not met in the required performance period, additional remediation 
measures would likely be required. EPA favors performance-based 
approaches provided that the remedial goals for the facility are clear, 
the oversight during remedy implementation is appropriate to the 
complexity of the facility-specific circumstances, and the public is 
substantively involved. Many states, in particular the State of 
Georgia, attribute the success of their corrective action programs, in 
part, to eliminating Agency review and approval of the CMS as a step in 
the corrective action process in favor of a performance-based approach.
    c. Facility Owner/Operator Should Recommend a Preferred Remedy. EPA 
emphasizes that it expects facility owners/operators to develop and 
recommend remedies or remedy performance standards (if a performance-
based model is being used), including proposed media cleanup levels, 
points of compliance and compliance time frames, that address the 
proposed threshold criteria and present an advantageous combination of 
the proposed balancing criteria. During remedy selection, EPA will 
consider the facility owner/operator's preferred remedial alternative, 
other remedial alternatives and public comment. Although it is the 
responsibility of the facility owner/operator to develop and recommend 
a preferred remedial alternative or remedy performance standard, the 
Agency can reject any alternative and require further analysis or 
prescribe a different remedial alternative or remedy performance 
standard.
5. Remedy Selection
    Remedies should be protective of human health and the environment, 
and maintain protection over time. In meeting this remedial goal, EPA 
has learned that certain combinations of facility-specific 
circumstances are often addressed by similar approaches. Based on this 
experience, the Agency has developed certain expectations for remedies. 
Remedy expectations are not binding requirements; rather, they reflect 
collective experience and guide development of remedial alternatives. 
For example, the fact that remedies for highly mobile contaminants 
often involve some form of treatment does not preclude a non-treatment 
option; however, expectations developed from past experience can focus 
program implementors and facility owners/operators on the more 
generally acceptable remedial options. In effect, the remedial 
expectations allow program implementors and facility owners/operators 
to profit from prior EPA experience and focus resources on the most 
plausible remedial alternatives. Many of these expectations were first 
articulated in the discussion of remedy selection at CERCLA sites in 
the National Oil and Hazardous Substances Pollution Contingency Plan 
(NCP) (40 CFR 430(a)(1)). The remedial expectations discussed below 
express EPA's experiences to date given our current remedial goals and 
remedy selection strategies; however, the Agency recognizes that issues 
associated with remedial goals and strategies are currently the subject 
of considerable public debate, i.e., in Congressional discussions of 
Superfund reauthorization. Since EPA is committed to consistency of 
results between the RCRA corrective action and Superfund remedial 
programs, any revisions to the CERCLA remedial expectations or the 
CERCLA remedy selection process will likely be incorporated into RCRA 
corrective action. Currently, EPA has the following remedial 
expectations:
    (a) EPA expects to use treatment to address the principal threats 
posed by a site whenever practicable and cost-effective.5 
Contamination that represents principal threats for which treatment is 
most likely to be appropriate includes contamination that is highly 
toxic, highly mobile, or cannot be reliably contained, and that would 
present a significant risk to human health and the environment should 
exposure occur.
---------------------------------------------------------------------------

    \5\ The term ``cost-effective'' does not necessarily imply least 
costly.
---------------------------------------------------------------------------

    (b) EPA expects to use engineering controls, such as containment, 
for wastes and contaminated media which can be reliably contained, pose 
relatively low long-term threats, or for which treatment is 
impracticable.
    (c) EPA expects to use a combination of methods (e.g., treatment, 
engineering and institutional controls), as appropriate, to achieve 
protection of human health and the environment.
    (d) EPA expects to use institutional controls such as water and 
land use restrictions primarily to supplement engineering controls as 
appropriate for short- and long-term management to prevent or limit 
exposure to hazardous wastes and constituents. EPA does not expect that 
institutional controls will often be the sole remedial action.
    (e) EPA expects to consider using innovative technology when such 
technology offers the potential for comparable or superior treatment 
performance or implementability, less adverse impact, or lower costs 
for acceptable levels of performance when compared to more conventional 
technologies.
    (f) EPA expects to return usable groundwaters to their maximum 
beneficial uses wherever practicable, within a time frame that is 
reasonable given the particular circumstances of the site. When 
restoration of groundwater is not practicable, EPA expects to prevent 
or minimize further migration of the plume, prevent exposure to the 
contaminated groundwater and evaluate further risk reduction. EPA also 
expects to control or eliminate surface and subsurface sources of 
groundwater contamination.
    (g) EPA expects to remediate contaminated soils as necessary to 
prevent or limit direct exposure of human and environmental receptors 
and prevent the transfer of unacceptable concentrations of contaminants 
(e.g., via leaching, runoff or air borne emissions) from soils, 
including subsurface soils, to other media.
    In addition to experiences recorded in the remedial expectations, 
EPA routinely encounters a number of issues associated with remedy 
selection, as discussed below.
    a. Balancing Treatment and Exposure Control. Risk is a function of 
toxicity and exposure; therefore, risk reduction can be accomplished by 
reducing toxicity (e.g., through treatment to reduce toxicity, mobility 
or volume) and/or preventing exposure (e.g., through engineering and 
institutional controls). Program implementors and facility owners/
operators often struggle to find an appropriate balance between these 
approaches.
    While preventing exposure may appear to be the most direct near-
term means of reducing risk, permanent reduction of the toxicity, 
mobility and/or volume of contaminated material might be the most cost-
effective means of reducing risk over time. For example, at a facility 
where the remedy relies, in part, on engineering controls to prevent 
exposure there could be: associated operation and maintenance costs; 
the need to maintain the RCRA facility permit for the life of the 
remedy; increased Agency involvement to monitor the continued 
effectiveness of the remedy; and, need for institutional controls. When 
treatment to reduce toxicity, mobility or volume is chosen, EPA does 
not necessarily expect the remedy to involve treatment alone. For

[[Page 19449]]

example, highly toxic contaminated material could be treated so that 
the concentrations of hazardous constituents, while still above media 
cleanup levels, would support a reliable containment remedy.
    The exact balance between reduction in toxicity, mobility or volume 
and exposure control will best be established on a case-by-case basis 
in consideration of site-specific conditions; however, all things being 
equal, permanent reductions in toxicity, mobility or volume are 
preferred to exposure control because it is protective of human health 
and the environment in the long-term and removes the risks associated 
with the potential failure of engineering or institutional controls. 
Program implementors and facility owners/operators are cautioned 
against too great a reliance on exposure control remedies when 
alternatives which include permanent reduction in toxicity, mobility or 
volume are available, affordable and practical. Additional information 
on the balance between toxicity reduction and exposure control is 
available in ``A Guide to Principal Threat and Low Level Threat 
Wastes,'' Superfund Publication 9380.3-06FS, November 1991, which is 
available in the docket for today's Notice.
    b. Remedy Selection Criteria. The 1990 proposal, like the Superfund 
NCP, established a two-phased evaluation for remedy selection. During 
the first phase, potential remedies are screened to see if they meet 
``threshold criteria''; remedies which meet the threshold criteria are 
then evaluated using various ``balancing criteria'' to identify the 
remedy that provides the best relative combination of attributes. While 
the CERCLA remedy selection criteria are not identical to the RCRA 
corrective action criteria proposed in 1990, they address the same 
types of considerations and should generally result in similar remedies 
when applied to similar site-specific conditions.
    The 1990 proposal identified four remedy threshold criteria and 
five balancing criteria. The four threshold criteria proposed in 1990 
were that all remedies must: (1) be protective of human health and the 
environment; (2) attain media cleanup standards; (3) control the 
source(s) of releases so as to reduce or eliminate, to the extent 
practicable, further releases of hazardous waste (including hazardous 
constituents) that might pose threats to human health and the 
environment; and (4) comply with applicable standards for waste 
management. EPA believes these threshold criteria remain appropriate as 
general goals for cleanup and screening tools for potential remedies.
    There has been some confusion regarding the proposed threshold 
criterion that remedies attain media cleanup standards. Attaining media 
cleanup standards does not necessarily entail removal or treatment of 
all contaminated material above specific constituent concentrations. 
Depending on the site-specific circumstances, remedies may attain media 
cleanup standards through various combinations of removal, treatment, 
engineering and institutional controls. For example, in situations 
where waste is left in place in an engineered landfill or under a cap, 
media cleanup standards would be attained, in part, through long-term 
engineering and institutional controls.
    The 1990 proposal identified five balancing criteria for choosing 
among remedies that meet the threshold criteria. The five balancing 
criteria proposed in 1990 were: (1) Long-term reliability and 
effectiveness; (2) reduction of toxicity, mobility or volume of wastes; 
(3) short-term effectiveness; (4) implementability; and (5) cost. The 
balancing criteria were not ranked in terms of relative importance. As 
discussed in the 1990 proposal, any one of the balancing criteria might 
prove to be the most important at a particular site. For example, a 
remedy at a certain site might be protective in the short term but not 
necessarily reliable in the long term (e.g., capping of a highly 
contaminated area). In this case, the need for long term reliability 
and the potential for long-term operation and maintenance costs would 
tend to point toward a remedy which presented a more advantageous 
combination of the balancing criteria (e.g., removal or treatment of 
hot spots, capping residual contamination, and implementing an 
institutional control).
    The proposed balancing criterion of cost has caused some confusion. 
Cost can and should be considered when choosing among remedies which 
meet the threshold criteria. As discussed in the 1990 proposal, EPA 
believes that many potential remedies will meet all the threshold 
criteria. In that situation, cost becomes an important consideration in 
choosing the remedy which most appropriately addresses the 
circumstances at the facility and provides the most efficient use of 
Agency and facility owner/operator resources. For cost comparisons 
between alternatives to be accurate, they should include capital and 
operation and maintenance costs for the anticipated life of the remedy.
    Pending resolution of the 1990 proposal, program implementors and 
facility owners/operators should use the threshold and balancing 
criteria proposed in 1990 as guidance when selecting facility-specific 
remedies; however, as discussed in Section V of today's Notice, EPA is 
also considering and requesting comment on a number of alternatives for 
corrective action remedy selection, including focusing on remedy 
performance standards. These alternatives are based, in part, on 
innovative approaches already used in some states and EPA Regions.
    c. Media Cleanup Standards. The term ``media cleanup standards'' 
typically refers to broad cleanup objectives; it often includes the 
more specific concepts of ``media cleanup levels,'' ``points of 
compliance,'' and ``compliance time frames.'' The more specific term, 
``media cleanup levels'' typically refers to site- and media-specific 
concentrations of hazardous constituents, developed as part of the 
overall cleanup standards for a facility. Media cleanup standards (and 
levels) should reflect the potential risks of the facility and media in 
question by considering the toxicity of the constituents of concern, 
exposure pathways, and fate and transport characteristics.
    Consistent with the CERCLA program, in the RCRA corrective action 
program EPA intends to clean up sites in a manner consistent with 
available, protective, risk-based media cleanup standards (e.g., MCLs 
and state cleanup standards) or, when such standards do not exist, to 
clean up to protective media cleanup standards developed for the site 
in question (e.g., through a site-specific risk assessment). Both 
approaches require a site-specific risk-based decision. When available 
media cleanup standards are used (e.g., MCLs, state cleanup standards), 
the assumptions used to develop the standardized cleanup values should 
be consistent with the site-specific conditions at the facility in 
question.
    As discussed in the NCP and the 1990 proposal, EPA's risk reduction 
goal is to reduce the threat from carcinogenic contaminants such that, 
for any medium, the excess risk of cancer to an individual exposed over 
a lifetime generally falls within a range from 10-6, in other 
words, an exposed individual will have an estimated upperbound excess 
probability of developing cancer of one in one-million, to 10-4, 
or an exposed individual will have an estimated upperbound excess 
probability of developing cancer of one in ten-thousand. For non-
carcinogens, the hazard index should generally not

[[Page 19450]]

exceed one (1).6 Available risk-based media cleanup standards are 
considered protective if they achieve a level of risk which falls 
within the 10-6 to 10-4 risk range.
---------------------------------------------------------------------------

    \6\ The hazard index is a measurement of non-carcinogenic risks. 
It is calculated by summing two or more hazard quotients for 
multiple substances and/or multiple exposure pathways. A hazard 
quotient is the ratio of a single substance exposure level over a 
specified time period to a reference dose for that substance derived 
from a similar exposure period.
---------------------------------------------------------------------------

    EPA's preference, all things being equal, is to select remedies 
that are at the more protective end of the risk range. Therefore, 
program implementors and facility owners/operators should generally use 
10-6 as a point of departure when developing site-specific media 
cleanup standards. Use of 10-6 as a point of departure does not 
establish a strict presumption that all final cleanups will necessarily 
attain that level of risk reduction. Given the diversity of the 
corrective action universe and the emphasis on consideration of site-
specific conditions such as exposure, uncertainty, or technical 
limitations, the Agency expects that other risk reduction goals may be 
appropriate at many corrective action facilities. As discussed in the 
1990 proposal, EPA endorses ``* * * an approach [to remedy selection] 
that allows a pragmatic and flexible evaluation of potential remedies 
at a facility while still protecting human health and the environment. 
This approach emphasizes the overall goal of 10-6 as the point of 
departure, while allowing site or remedy-specific factors, including 
reasonable foreseeable future uses, to enter into the evaluation of 
what is appropriate at a given site.'' (See, 55 FR 30826.)
    d. Points of Compliance. As proposed in 1990, the point of 
compliance (POC) is the location or locations at which media cleanup 
levels are achieved. In the absence of final corrective action 
regulations specifically addressing points of compliance, program 
implementors and facility owners/operators develop POCs on a site-
specific basis. For air releases, program implementors and facility 
owners/operators have generally used the location of the person most 
exposed, or other specified point(s) of exposure closer to the source 
of the release. For surface water, program implementors and facility 
owners/operators have routinely established the POC at the point at 
which releases could enter the surface water body; if sediments are 
affected by releases to surface water, a sediment POC is also 
established. Points of compliance for soils are generally selected to 
ensure protection of human and environmental receptors against direct 
exposure and to take into account protection of other media from cross-
media transfer (e.g., via leaching, runoff or airborne emissions) of 
contaminants. For groundwater, program implementors and facility 
owners/operators generally set the POC throughout the area of 
contaminated groundwater or, when waste is left in place, at and beyond 
the boundary of the waste management area encompassing the original 
source(s) of groundwater contamination. This approach to the 
groundwater POC is generally referred to as the ``throughout the plume/
unit boundary POC.'' This approach is consistent with the groundwater 
POC described in the preamble to the Superfund program's National Oil 
and Hazardous Waste Contingency Plan (NCP, pages 8713 and 8753, Federal 
Register March 8, 1990). EPA recommends consideration of the following 
factors when developing a site-specific groundwater POC: proximity of 
sources of contamination; technical practicability of groundwater 
remediation; vulnerability of the groundwater and its possible uses; 
and, exposure and likelihood of exposure and similar considerations.
    In 1990, EPA proposed specific POCs for groundwater, air, surface 
water, and soil. These proposals, especially the proposed POC for 
groundwater, generated a substantial number of comments. Developing 
site-specific points of compliance generally continues to be an area of 
discussion and debate. In Section V.E.2 of today's Notice, EPA requests 
additional comment regarding POCs for corrective action.
    e. Compliance Time Frame. The compliance time frame is the time 
period and schedule according to which corrective actions are 
implemented. In the 1990 proposal, EPA expressed a preference for the 
expeditious stabilization of releases, followed by timely completion of 
corrective actions and full restoration of contaminated media; however, 
a number of factors may influence the time frame within which media 
cleanup standards are attained, including: the extent and nature of 
contamination at the facility; risks to human health and the 
environment before and during remedy implementation; practical 
capabilities of remedial technologies; the availability of treatment or 
disposal options; and, the desirability of utilizing emerging 
technologies.
    Remedy implementation schedules developed at the time of remedy 
selection should, to the extent possible, specify the compliance time 
frame; however EPA recognizes that uncertainties associated with 
remediation may make it impossible to specify when a remedy must be 
completed. For example, due to complexities associated with contaminant 
occurrence in the subsurface and with groundwater remediation in 
general, the time needed to remediate groundwater at some sites cannot 
be accurately predicted. In these circumstances, the Agency recommends 
the use of performance measures or milestones monitored over time to 
track progress toward attaining remedial goals. These performance 
measures should be specified in the remedy implementation plans or 
performance standards. In cases where it is not practical to determine 
a precise compliance time frame, estimated compliance time frames may 
be used to help evaluate remedial alternatives and the technical 
practicability of site-specific remedial goals.
    EPA emphasizes that, at many sites, the primary focus should be on 
near-term stabilization of releases. At these sites, it may be 
appropriate to focus the compliance time frame and corrective measures 
implementation schedule on the stabilization action; the remaining 
compliance time frame and corrective measures implementation schedule 
(if any are necessary) could then be developed during selection of the 
facility-wide remedy.
    f. Site-Specific Risk Assessments. EPA's strategy for corrective 
action implementation incorporates risk-based decision-making 
throughout the corrective action process. At some sites, risk-based 
decisions can be made using standardized risk considerations, such as 
standardized exposure assumptions. At other sites, a site-specific risk 
assessment will be desirable. When a site-specific risk assessment is 
needed, EPA, in some cases, has directed the facility owner/operator to 
perform the risk assessment; in other cases EPA has chosen to do the 
risk assessment itself based on data submitted by the owner/operator. 
Site-specific risk assessments conducted at RCRA facilities may be 
based on CERCLA's extensive guidance in this area (e.g., ``Risk 
Assessment Guidance for Superfund,'' Volumes I and II, Interim final 
EPA/540/1-89/001 and 002, December 1989 and March 1989). Additional 
information on the Agency's approach to risk-based decision-making is 
available in the Agency's recent memorandum on risk characterization. 
(See, 3/21/95 memorandum from Carol Browner, ``EPA Risk 
Characterization Program'' in the docket for today's Notice.) The

[[Page 19451]]

Administrator stated, ``* * * we must improve the way in which we 
characterize and communicate environmental (human health and ecologic) 
risk.'' The key values conveyed in the 1995 Risk Characterization 
guidance are: (1) ``transparency'' in the decision making process 
(i.e., full and open discussion of supporting analyses, uncertainties, 
assumptions, etc.); (2) ``clarity'' in communication within the Agency 
and the public regarding environmental risk and the uncertainties 
associated with our assessments; (3) consistency; and (4) 
reasonableness in our use of scientifically defensible risk 
assessments. It is EPA's policy to incorporate these values in all 
risk-based considerations, including site-specific risk assessments at 
corrective action facilities.
    g. Ecological Risk. Corrective action remedies must protect both 
human health and the environment. Some form or ecological assessment 
will generally be necessary at all corrective action facilities; at 
some corrective action facilities, a formal ecological risk assessment 
will be necessary. When an ecological risk assessment is needed, EPA, 
in some cases, has directed the facility owner/operator to perform the 
risk assessment; in other cases EPA has chosen to do the risk 
assessment itself based on data submitted by the owner/operator. The 
use of ecological risk assessment is an important component of the 
corrective action program. Often, environmental receptors are sensitive 
to contamination at lower concentrations than humans are, and the 
exposure is usually longer and more intense. In order to fulfill EPA's 
mandate, the program must be implemented in a manner that is protective 
of both human health and the environment. This includes the selection 
of media cleanup standards and the implementation of remedial 
activities that are protective or ecologic receptors. In the process of 
selecting stabilization measures or implementing final remedies, 
program implementors and facility owner/operators should be aware of 
how different remedial activities may affect ecological systems, 
especially sensitive populations, either on or adjacent to the 
facility.
    Ecological risk assessment may be even more important when non-
residential land use assumptions are used. Action or cleanup levels 
based on human health exposure scenarios or land use assumptions might 
not be protective of ecological receptors; therefore, consideration of 
the ecological exposure pathway may, in certain settings, be the 
driving factor in selection of action or cleanup levels.
    CERCLA's National Contingency Plan (55 FR 8666, March 8, 1990) 
designates certain key Federal agencies, state agencies and Indian 
tribes as natural resource trustees. Section 300.600 of the NCP 
indicates that trustees act on behalf of the public in regards to 
protection of natural resources. Under CERCLA, trustees should be 
notified when contamination threatens natural resources. As a matter of 
policy, EPA recommends that trustees also be notified when RCRA 
corrective action identifies a release that threatens natural 
resources. In addition, trustee agencies have a great deal of 
experience in their respective areas and can be used as a valuable 
resource when conducting ecological assessments.
    h. Determinations of Technical Impracticability. Remediation of 
contaminated media to a desired media cleanup standard can, in certain 
situations, be technically impracticable. Congress formally recognized 
technical impracticability (TI) in the CERCLA statute and EPA 
incorporated the concept in the National Contingency Plan and the 1990 
Subpart S proposal (proposed 40 CFR 264.525(d) and 264.531).
    Technical impracticability decisions may be made for any medium; 
however, contaminated groundwater has received in the most TI-related 
attention. The single greatest cause for technical impracticability 
determinations during groundwater restoration has been the presence of 
dense non-aqueous phase liquids (DNAPLs).\7\ The Superfund program 
estimates that DNAPLs are likely present at approximately 60 percent of 
NPL sites. While EPA has not conducted an overall assessment of the 
presence of DNAPLs at RCRA facilities, it believes the percentage of 
DNAPLs at high priority corrective action facilities is likely 
comparable to the Superfund estimate for NPL sites. To provide a 
framework for addressing technical impracticability, the Agency issued 
``Guidance for Evaluating the Technical Impracticability for Ground-
Water Restoration'' (EPA/540-R-93-080). EPA encourages program 
implementors and facility owner/operators to refer to this guidance for 
a more detailed description of technical impracticability and a 
discussion of related issues, including: a description of DNAPLs and 
why they are difficult to remediate; factors to consider when making a 
technical impracticability determination; and, appropriate and 
practicable remedial options in situations where complete restoration 
is technically impracticable.
---------------------------------------------------------------------------

    \7\ Liquid contaminants that do not readily dissolve in water 
are known as non-aqueous phase liquids (NAPLs). NAPLs are divided 
into two classes: light NAPLS (LNAPLs), such as gasoline, are less 
dense than water; dense NAPLs (DNAPLs), such as the common solvent 
trichloroethylene, are more dense than water. NAPLs in the 
subsurface can cause long-term groundwater contamination, can be 
difficult to locate and, in many circumstances, technically 
impracticable to remove.
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    The possibility that certain remedies may be technically 
impracticable should be considered throughout the remediation process--
from the early stages of developing a conceptual site model through all 
stages remedy implementation. When possible, determinations of 
technical impracticability should be made early in the remediation 
process and included in RCRA corrective action remedial decision 
documents (permits and orders). In some cases, program implementors and 
facility owner/operators might not have enough information to justify a 
determination of technical impracticability at the time of the site 
characterization or, even, when the remedy is selected. At the same 
time, there may be strong indications that restoration of a particular 
medium will be difficult and may prove technically impracticable (e.g., 
complicated groundwater remedies). In such situations, program 
implementors and facility owner/operators may choose not to establish a 
fixed media cleanup level, point of compliance or compliance time-
frame, since achieving full restoration may prove technically 
impracticable. Instead, the remedy might proceed using interim goals 
and performance measures which could be revisited as more information 
became available. To avoid creating unrealistically high remedial 
expectations in these situations, the corrective action permit or order 
should discuss the possibility that full restoration of a particular 
medium may prove technically impracticable.
    By recognizing technical impracticability, EPA is not in any way 
scaling back the general goal of returning contaminated groundwater to 
beneficial uses. Where technical impracticability is determined, the 
Agency would expect to require an alternative remedial strategy that 
is: (1) technically practicable; (2) consistent with the overall 
objectives of the remedy; and (3) controls the source(s) of 
contamination, and human and environmental exposures. A determination 
of TI does not release a facility owner/operator from corrective action 
obligations.
    i. Natural Attenuation. EPA's three major remedial programs (i.e., 
Superfund, RCRA Corrective Action Program, and the Underground Storage

[[Page 19452]]

Tank Program) recognize that natural attenuation, in certain 
circumstances, can be an acceptable component of remedial actions for 
contaminated groundwater. As discussed in the NCP, a natural 
attenuation remedy uses natural processes such as biodegradation, 
dispersion, dilution, and/or adsorption to achieve remedial goals. 
(See, 55 FR 8734, March 8, 1990.)
    Natural attenuation remedies are not ``no action'' remedies. 
Natural attenuation should be evaluated, where it might be applicable, 
along with and in a manner similar to other potential remedial 
approaches. In some cases, natural attenuation might be only one aspect 
of an overall approach to achieving remedial goals. As in any other 
remedial approach, a proposed remedy involving natural attenuation will 
have to be protective of human health and the environment and satisfy 
remedy selection criteria. Program implementors and facility owner/
operators should provide a complete description of natural attenuation 
remedies and emphasize that, by approving a natural attenuation remedy, 
an overseeing agency is not allowing a responsible party to avoid its 
remedial obligations. Remedies involving natural attenuation should 
include: a thorough site characterization; source control or removal 
where appropriate; documentation or evidence of attenuation processes 
and the ability of these processes to achieve remedial objectives; an 
appropriate long-term monitoring plan; and, in certain circumstances, a 
contingency plan for a more active remedial measure (e.g., pumping).
    j. Land Use. As discussed in the 1990 proposal, EPA's policy is 
that current and reasonable expected future land use and corresponding 
exposure scenarios should be considered in both the selection and 
timing of remedial actions. In the 1990 proposal, the Agency stated, 
``* * * contaminated soil at an industrial site might be cleaned up to 
be sufficiently protective for industrial use but not residential use, 
as long as there is reasonable certainty that the site would remain 
industrial.'' (See, 55 FR 30803.) Recently, EPA issued additional 
guidance on incorporating reasonable future land use assumptions in 
remedial decision making in the guidance document ``Land Use in the 
CERCLA Remedy Selection Process'' (OSWER Directive No. 9355.7-04, May 
25, 1995; see Section II.F.6.a of today's Notice).
    Reasonable future land use assumptions should be assessed when 
developing remedial goals for any given facility and used to focus all 
aspects of the corrective action process; however, EPA cautions against 
automatically restricting assumptions of future land use to 
extrapolation of the current use or relying only on designated zoning 
or industrial use codes to establish land use assumptions. A large 
industrial facility could include office areas, parking areas, a child 
care area or on-site residences. Highly industrial sites are sometimes 
located adjacent to residential properties. All of these factors should 
be considered when making land use assumptions.
    EPA recognizes the complexities associated with developing 
reasonably anticipated land use assumptions and the need for caution 
when basing remedial decisions on assumptions of future use; however, 
the Agency believes that non-residential land use assumptions are 
appropriate for many corrective action facilities. When remedies based 
on non-residential exposure scenarios involve a combination of 
treatment and engineering or institutional controls, program 
implementors and facility owner/operators should use currently 
available tools to ensure that the remedy continues to achieve its 
objectives over time and the land use assumptions remain valid. For 
example, many implementing agencies allow facility owner/operators to 
use institutional controls to ensure that exposure scenarios at the 
facility remain consistent with those used at the time of remedy 
selection.
    EPA requests comments on these and other land use issues in Section 
V.E.1 of today's Notice.
6. Remedy Implementation
    Remedy implementation typically involves detailed remedy design, 
remedy construction, remedy operation and maintenance, and remedy 
completion. In the CERCLA program, remedy implementation is known as 
``remedial design/remedial action, operation and maintenance''; in the 
corrective action program, it is known as ``corrective measures 
implementation'' or CMI. As proposed in 1990, corrective measures 
implementation is generally conducted in accordance with an approved 
CMI plan. Components of corrective measures implementation might 
include: conceptual design, operation and maintenance, intermediate 
design plans and specifications, final design plans and specifications, 
construction work plan, construction completion report, corrective 
measure completion report, health and safety plan, public participation 
plan and progress reports; however, in many cases, only a subset of 
these documents will be required for individual corrective measures 
implementations.
    EPA has found a number of useful strategies for improving the 
efficiency of corrective measures implementation, as discussed below.
    a. Performance Based Corrective Measures Implementation. Similar to 
the performance-based approach discussed for evaluation of remedial 
alternatives in Section III.C.4.b of today's Notice, some states and 
EPA regions have developed a performance-based approach to corrective 
measures implementation. When using a performance-based approach to 
corrective measures implementation, the overseeing agency generally 
works with the facility owner/operator during remedy selection to 
develop remedial goals for the facility. Following public review and 
comment and approval of a remedy and remedial goals, the facility 
owner/operator is tasked with designing and implementing the chosen 
remedy in a manner which would meet the remedial goals. For example, if 
the remedy chosen for a particular facility included some form of 
groundwater treatment, an accompanying remedial goal might be to 
achieve hydrologic containment of the groundwater plume and continuous 
reduction of the concentrations of hazardous constituents. While the 
overseeing agency would review and approve the remedy and remedial 
goals and be involved in developing monitoring systems or other means 
of measuring compliance with the remedial goals, it would not 
necessarily be involved with the details of remedy design, construction 
and implementation. Rather, the overseeing agency would monitor 
compliance with the remedy implementation milestones and remedial goals 
and become involved in the details of remedy design and implementation 
only if a facility owner/operator was having trouble meeting the 
remedial goals. A performance-based approach to remedy implementation 
emphasizes that the facility owner/operator, not the overseeing agency, 
is responsible for designing and implementing a successful remedy.
    b. Performance Monitoring. Evaluation of the performance of a 
chosen remedy is necessary to measure progress toward remedial goals 
and ensure that remedial objectives are achieved. Program implementors 
and facility owner/operators have recognized that appropriately 
designed performance monitoring programs can maximize efficiency and 
cost-effectiveness and ensure protection of potential human or ecologic 
receptors.

[[Page 19453]]

    Properly designed performance monitoring programs are especially 
important for groundwater remediation because the concentration and 
distribution of contamination in the subsurface often change with time. 
Likewise, the ability of remediation systems to prevent migration of 
contaminated groundwater can be influenced by natural and human factors 
(e.g., seasonal precipitation or nearby agricultural groundwater 
usage). For groundwater remediation systems, performance monitoring can 
assess changes in subsurface conditions so that the remedy can be 
modified to ensure maximum efficiency in terms of both the location and 
pumping rate at individual extraction wells.
    Performance monitoring is also a critical aspect of a remedial 
alternative that relies on engineering controls (e.g., liners, barrier 
walls). Poorly designed monitoring programs for engineered remedies can 
potentially fail to detect releases from the ``contained'' areas.
    While EPA recognizes the importance of performance monitoring, it 
also acknowledges that long-term routines of sample collection and 
analysis carry significant financial burdens. The Agency encourages 
program implementors and facility owner/operators to design monitoring 
programs with effectiveness and efficiency as fundamental 
considerations. For example, due to subsurface heterogeneities, it may 
be more effective and efficient to monitor a greater number of discrete 
locations for a subset of mobile contaminants, than to monitor fewer 
locations for an exhaustive list of analytical parameters and 
contaminants.
    Properly designed performance monitoring programs are integral to 
remedy success and should be considered throughout the corrective 
action process, including in remedy selection and design. Detailed 
guidance regarding performance monitoring and designing monitoring 
programs in general is available in ``RCRA Ground-Water Monitoring: 
Draft Technical Guidance'' (EPA/530/R-93/001) and ``Methods for 
Monitoring Pump-and-Treat Performance'' (EPA/600/R-94/123).
    c. Completion of Corrective Measures. Documents specifying 
corrective measures implementation should include methods to determine 
when remedial goals have been achieved. For example, statistical 
procedures are often appropriate for determining that concentrations of 
hazardous constituents measured in groundwater samples meet a remedial 
goal. Other remedies might require that certain tests be undertaken to 
determine that engineering standards have been achieved. Decisions 
regarding completion of corrective measures may be made for the entire 
facility, for a portion of the facility, or for a specified unit or 
release. The public and affected community should be given an 
opportunity to review and comment on all proposals to complete 
corrective measures.
    In 1990, EPA proposed that corrective measures be considered 
complete based on a three-part evaluation: the corrective measure had 
to have complied with all media cleanup standards; all required source 
control actions would have to be completed; and all specified 
procedures for removal and decontamination of units, equipment, devices 
and structures would have to be complete. In addition to certifying 
compliance with the three criteria, the Agency proposed that the owner/
operator's certification be signed by an independent registered 
professional ``skilled in the appropriate technical discipline(s).'' 
The Agency chose not to propose that all certifications be signed by an 
independent qualified registered professional engineer because it 
believed that engineering certifications would not be appropriate in 
all cases (e.g., for a remedy largely addressing groundwater, the 
Agency believed that certification by a hydrogeologist might be more 
appropriate). In the absence of final regulations addressing completion 
of corrective measures, program implementors and facility owner/
operators should use the requirements for completion of corrective 
measures proposed in 1990 as guidance when developing site-specific 
procedures for completion of corrective measures. At a minimum, the 
public and affected community should be given notice and an opportunity 
to comment before corrective action implementation is terminated and a 
facility is released from its RCRA obligations.

D. Incorporation of Corrective Action in RCRA Permits

    RCRA Section 3004(u) mandates that corrective action and schedules 
of compliance be required for facilities seeking a permit, when 
corrective action cannot be completed prior to permit issuance. 
Approximately half the states are authorized to implement state RCRA 
corrective action programs in lieu of the Federal program. In 
authorized states, the state issues the RCRA permit including the 
corrective action component (using any of the options discussed above). 
In states not authorized for the corrective action program, the state 
typically issues most of the RCRA permit and EPA issues the corrective 
action portion. Although any given facility may be issued a portion of 
its RCRA permit by an authorized state and a portion by EPA, this 
should not lead to the perception that any given facility has more than 
one RCRA permit. Program implementors and facility owner/operators 
should remember that any given facility has only one RCRA permit; when 
joint permitting is necessary, EPA will coordinate permitting schedules 
and priorities with authorized states.
    Corrective action requirements and schedules can be included in 
RCRA permits in a number of ways. In some cases, the RCRA permit will 
contain detailed corrective action provisions, work plan requirements, 
and schedules. In other cases, the RCRA permit may incorporate 
corrective action requirements by referencing another document (e.g., a 
state or Federal corrective action order). Finally, in certain cases, 
RCRA permits may defer to corrective action activities being conducted 
under another authority or by another program. In many cases, 
incorporation of corrective action requirements into any given permit 
will use a combination of these strategies. For example, at a 
corrective action facility where the facility owner/operator has chosen 
to address a subset of the releases voluntarily, a corrective action 
permit could defer action at the areas being addressed by the voluntary 
cleanup while incorporating detailed corrective action conditions for 
the remaining releases or areas of concern.

E. Corrective Action Orders

    Although the 1990 proposal focused primarily on corrective action 
under RCRA permits, EPA and the states frequently use orders to 
initiate or oversee corrective actions. EPA intends for equivalent 
environmental results to be achieved whether corrective action 
requirements are dictated in an order or a permit. As a matter of EPA 
policy, the substantive corrective action requirements and public 
participation requirements imposed under either mechanism are generally 
the same.
    RCRA, as amended by HSWA, includes several enforcement authorities 
which can be used to issue corrective action orders. The most commonly 
used authority is RCRA section 3008(h). EPA's longstanding 
interpretation is that corrective action may be required under RCRA 
section 3008(h) at facilities which have or should have had interim 
status, as well as some facilities that had interim status at one time 
but no longer do (e.g., facilities that have lost interim status under 
RCRA interim status section 3005(e)(2) and facilities which

[[Page 19454]]

have clean closed under interim status), or have failed to properly 
obtain interim status. In addition, the 1990 proposal explained that 
issuance of a permit does not automatically terminate the effectiveness 
of a previously issued 3008(h) order.
    Other enforcement authorities which can be used to issue corrective 
action orders include RCRA sections 3013 and 7003. RCRA section 7003 
provides EPA the authority to take enforcement actions to compel 
corrective action where solid or hazardous waste may present an 
imminent and substantial endangerment to human health or the 
environment. RCRA section 3013 provides EPA the authority to require 
investigations and studies where the presence or release of hazardous 
waste may present a substantial hazard to human health or the 
environment. All corrective action orders may be issued unilaterally by 
the Agency or as consent agreements between the respondent and the 
Agency.

F. Public Participation and Environmental Justice

    EPA is committed to providing meaningful public participation in 
all aspects of the RCRA program, including RCRA corrective action. In 
1993, the Agency released a detailed guidance manual on public 
participation (RCRA Public Involvement Manual, EPA 530-R-93-006). EPA 
followed this guidance in December 1995 with the RCRA Expanded Public 
Participation rule (60 FR 63417, December 11, 1995). EPA is also 
committed to the principles of environmental justice and equitable 
public participation. One of the Agency's central goals in the RCRA 
program is to provide equal access to information and an equal 
opportunity to participate. EPA continues to regard public 
participation as an important activity that empowers all communities, 
including minority and low-income communities, to become actively 
involved in local waste management activities. EPA strives to provide 
adequate public participation opportunities to all communities, putting 
forth additional effort, where appropriate, to reach communities that 
have not been involved in the past.
    When corrective action is part of the RCRA permitting process, it 
follows the procedural requirements set forth in 40 CFR Parts 124 and 
270. Under these requirements, the corrective action provisions in any 
permit application are available for public review throughout the 
permitting process and the public can comment on them at the draft 
permit stage.
    The RCRA Expanded Public Participation rule creates more 
opportunities for public participation in the RCRA permit 
process.8 Additional opportunities of public participation 
include: (1) A prospective applicant must advertise and hold an 
informal public meeting before submitting an application for a RCRA 
permit; (2) the permitting Agency must mail a notice to the facility 
mailing list when the facility submits its permit application, telling 
members of the public where they can examine the application during 
Agency review; and (3) giving the permitting Agency the authority to 
require a facility owner/operator to set up an information repository 
at any time during the permitting process or the permit life. EPA 
anticipates that these provisions, combined with existing public 
participation requirements, will provide community members with 
significant opportunities for early input and access to information.
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    \8\ The RCRA public participation rule is generally effective 
only in states which have amended their authorized hazardous waste 
programs to adopt the public participation rule requirements. At a 
minimum, all authorized states are scheduled to make such amendments 
by July 1, 1997. The exceptions are the following states and 
territories where EPA implements the entire RCRA hazardous waste 
program, including the public participation rule: Alaska, Hawaii, 
Iowa, Puerto Rico, the Northern Mariana Islands, the Virgin Islands 
and American Samoa.
---------------------------------------------------------------------------

    In addition to the new requirements in the RCRA public 
participation rule, EPA is using guidance to help facility owner/
operators meet the Agency's public participation goals. In the preamble 
to the RCRA Expanded Public Participation rule, EPA encourages agencies 
and facilities to use all reasonable means to ensure equal 
opportunities for participation and equal access to information. These 
means may include, but are not limited to, multilingual notices and 
fact sheets, as well as translators, in areas where the affected 
community contains significant numbers of people who do not speak 
English as a first language. The Agency expects all those involved in 
implementing corrective action to make good faith efforts to meet these 
objectives in all permitting processes, including corrective action. In 
the near future, EPA will issue further guidance to assist facilities 
and permitting agencies in providing full and equitable public 
participation in corrective action activities.
    EPA's policy is for corrective actions imposed or overseen using a 
non-permit mechanism to have the same level of public participation as 
that associated with permits. Although EPA typically has less control 
over public participation during voluntary corrective actions, it 
strongly encourages the use of public participation and will take into 
account the level of public participation conducted by the facility 
owner/operator when evaluating the acceptability of voluntary actions. 
In the absence of final regulations specifically addressing public 
participation during corrective action, program implementors and 
facility owner/operators should develop public participation strategies 
on a site-specific basis, consistent with existing public participation 
requirements and the program goal of full, fair, and equitable public 
participation. At a minimum, information regarding corrective action 
activities (e.g., RFI and CMS reports) should be available to the 
public and the public should be given an opportunity to review and 
comment on proposed corrective action remedies.

G. Financial Assurance

    RCRA section 3004(u) requires that, when corrective action cannot 
be completed prior to permitting, RCRA permits contain corrective 
action schedules of compliance and financial assurance. Financial 
assurance is also typically included in corrective action orders. On 
October 24, 1986, EPA proposed detailed regulations to govern financial 
assurance for corrective action (FACA). The October 1986 proposal would 
require owners or operators seeking an RCRA permit to demonstrate 
financial assurance for completion of remedies. Proposed acceptable 
mechanisms included trust funds, surety bonds guaranteeing performance, 
letters of credit, the financial test, and the corporate guarantee. 
These are similar to the mechanisms used to assure closure and post-
closure costs. In a subsequent memorandum, EPA clarified that insurance 
would also be an acceptable mechanism. In addition to permissible 
mechanisms, the October 1986 proposal provided that financial assurance 
demonstrations would ordinarily be required at the time of remedy 
selection (e.g., rather than at the time an RFI is required). The 
proposal also discussed cost-estimating procedures, including the 
periodic adjustment of cost estimates, for determining the amounts of 
required financial assurance.
    In the absence of final rules, program implementors and facility 
owner/operators have the flexibility to tailor financial responsibility 
requirements to facility-specific circumstances. In some instances, 
however, industry has expressed concern with EPA's implementation of 
the financial

[[Page 19455]]

assurance requirements. Representatives of the regulated community have 
also expressed concern that the costs of providing financial assurance 
divert resources from actual cleanup activities, and that it may be 
difficult for facility owners/operators to provide assurance for future 
work while simultaneously performing current work.
    In Section V of today's Notice, EPA requests comments on these 
concerns and on corrective action financial assurance in general. In 
the interim, EPA emphasizes that program implementors should apply 
financial assurance requirements flexibly and that their main goal 
should be to ensure that remedies proceed expeditiously.

IV. Corrective Action Program Priorities

    In the absence of detailed regulations, EPA and authorized states 
have implemented the corrective action program based on guidance and 
policies developed over the past ten years. EPA stresses that 
implementation of the corrective action requirements must continue even 
as the Agency considers improvements to the corrective action program. 
EPA's key goals and implementation strategies for the corrective action 
program are outlined below.
    1. Prioritize the corrective action universe:
    a. Meet the goal of assessing and prioritizing all hazardous waste 
treatment, storage or disposal facilities by end of FY96.
    b. Focus resources on high priority areas at high priority 
facilities.
    2. Increase the amount of corrective action:
    a. Continue to authorize states for corrective action.
    b. Do not duplicate work already performed by another Federal or 
state program.
    c. Encourage alternate state authorities to conduct analogous work 
at RCRA facilities.
    d. Utilize the expertise of other Federal/state agencies where 
appropriate (e.g., the U.S. Fish and Wildlife Service for ecological, 
wetlands issues).
    e. Increase the number of voluntary actions, including actions at 
facilities without a permit or an order, actions outside of an existing 
permit or order, and actions required under permit or order but with no 
Agency oversight.
    f. Disinvest or substantially reduce oversight at lower priority 
facilities and high priority facilities where the owner/operator has 
proven his or her capability.
    3. Continue to implement the stabilization initiative:
    a. Implement stabilization actions as early in the process as 
possible.
    b. Phase and focus RFIs to collect any information needed to 
implement stabilization actions.
    c. Use existing corrective action program environmental indicators 
as stabilization performance measures.
    d. Include meaningful opportunities for public participation 
throughout the process including during extensive or long-term 
stabilization actions.
    4. Streamline the corrective action process where possible:
    a. Implement stabilization actions where possible, then disinvest 
and move on to other facilities.
    b. Focus RFI data collection and tailor investigations to specific 
site conditions.
    c. Use existing pertinent data.
    d. Communicate remediation expectations to facility owners/
operators early in the process.
    e. Use innovative technical tools, including new site 
characterization techniques and treatment technologies when appropriate 
and beneficial.
    f. Avoid unnecessary procedural steps whenever feasible (e.g., 
eliminate the CMS if a desirable remedy can be identified without one).
    g. Use presumptive remedies when appropriate.
    h. Focus on plausible remedies, if a CMS is necessary.
    i. Conduct CMS concurrent with RFI when possible.
    j. Utilize site-specific performance standards instead of detailed 
review of work plans and remedy designs when possible.
    k. Consider non-residential land use scenarios when appropriate, 
while recognizing that ecological risks may end up driving media 
cleanup standards and remedy designs when using industrial land use 
assumptions.
    5. Continue to involve the public in all stages of the corrective 
action process.

V. Request for Comment and Data

    EPA has the benefit of more than ten years experience in corrective 
action implementation as it begins the Subpart S Initiative. The Agency 
is committed to using this experience to identify, develop, and 
implement improvements to the speed, efficiency, protectiveness and 
responsiveness of the corrective action program as part of the Subpart 
S Initiative. Today, EPA requests information, comments and data to 
assist in this process. Some of the topics discussed in this section 
raise new concepts that would likely warrant re-proposing regulations 
or developing new guidance documents; others were addressed in the 1990 
proposal but are included in this section of today's Notice because the 
Agency is requesting additional comment and data at this time. EPA 
requests that commenters be as specific as possible in their responses 
to today's requests. The Agency is particularly interested in comments 
which rely on actual experience in corrective action implementation and 
include specific suggestions for improvement to the corrective action 
program. The Agency also requests that commenters keep in mind the 
objectives of the Subpart S Initiative: create a consistent, holistic 
approach to cleanups at RCRA facilities; establish protective, 
practical cleanup expectations; shift more of the responsibilities for 
achieving cleanup goals to the regulated community; focus on 
opportunities to streamline and reduce costs; and, enhance 
opportunities for timely, meaningful public participation.
    EPA emphasizes that its purpose in requesting comments at this time 
is to take advantage of information and experience gained through 
program implementation to aid in identification and development of new 
proposals and to determine which portions of the 1990 proposal should 
be promulgated immediately. EPA will consider all comments submitted in 
response to today's Notice in development of the Subpart S Initiative. 
Comments submitted during the 1990 comment period will be considered 
before the Agency takes final action on any part of the 1990 proposal. 
If EPA later proposes new corrective action regulations, full public 
notice and opportunity for comment will be provided at that time.

A. General

    EPA requests general comment on its implementation of the 
corrective action program to date and on the strategy, goals and 
schedule of the Subpart S Initiative as discussed in Sections II and IV 
of today's Notice. The Agency is especially interested in comments 
which include suggestions for specific improvements to the corrective 
action program based on actual implementation experiences. The Agency 
is also interested in examples of situations where the existing 
flexibility in the corrective action program has been used to expedite 
facility cleanups and in examples of the corrective action program 
providing too much or too little flexibility. Since the Subpart S 
initiative includes policy, guidance and rule development, commenters 
should include specific recommendations for

[[Page 19456]]

additional policy or guidance development and address the balance 
between guidance/policy documents and regulations (e.g., in 1990 EPA 
proposed detailed regulations to address most aspects of the corrective 
action program perhaps some of that information could be presented more 
effectively in policy or guidance documents).

B. Resolution of the 1990 Proposal

    EPA believes there may be elements of the 1990 proposal which have 
been largely non-controversial or for which the issues have been fully 
aired; accordingly, going through additional notice and comment on all 
the issues raised by the 1990 proposal would not be necessary or, from 
an efficiency standpoint, desirable. On the other hand, many issues 
raised by the 1990 proposal have evolved during the past six years of 
corrective action implementation, necessitating additional 
opportunities for public notice and comment. In the discussions to 
follow, EPA identifies the issues on which it believes further public 
input is most needed. EPA also requests that commenters identify any 
other issues, or elements of the 1990 proposal, on which they believe 
it would be inappropriate for the Agency to take final action without 
re-proposal. At the same time, EPA requests that commenters identify 
specific elements of the 1990 proposal which could be promulgated 
without additional public review and the advantages or disadvantages of 
immediately promulgating such provisions. Comments submitted in 
response to this request will be considered part of the administrative 
record for the 1990 proposal; however, commenters should keep in mind 
that EPA's intent is not to request new comment on the specifics of the 
1990 proposal. Comments submitted during the 1990 comment period will 
be considered before the Agency takes final action on any part of the 
1990 proposal.

C. Focusing the Corrective Action Program on Results

    As discussed earlier in today's Notice, the goal of the corrective 
action program is to appropriately stabilize and clean up RCRA 
facilities in a timely way. EPA believes that too often program 
implementors and facility owners/operators may lose sight of this goal 
and become distracted by processes. On the other hand, the purpose of a 
standardized cleanup process is to ensure that the program is 
implemented consistently and that all facilities appropriately meet 
cleanup goals. The Agency is interested in improving the corrective 
action program's focus on cleanup goals and requests general comment on 
the balance between focusing on results and ensuring an appropriate 
level cleanup at all facilities. In addition, EPA is specifically 
interested in comments which address:
1. Performance Standards
    EPA believes that focusing the corrective action program on 
compliance with clear measurable performance standards rather than a 
prescriptive corrective action process could significantly increase the 
pace and quality of corrective action cleanups. Corrective action 
performance standards could be part of a larger Agency effort to 
develop results-based measures. The Government Performance and Results 
Act of 1993 (GPRA) requires EPA to develop and implement results-based 
measures across its programs by 1998. For example, the corrective 
action environmental indicators (discussed below), were developed, in 
part, in response to the GPRA. The Agency will consider any 
performance-based approaches developed as part of the Subpart S 
Initiative as it develops its implementation plan for the GPRA.
    Reliance on performance standards, however, can raise a number of 
implementation issues. For example, some stakeholders have suggested 
that using performance standards in lieu of detailed review and 
approval of work plans may increase the risk that individual facility 
owners/operators will attempt to obscure or avoid legitimate corrective 
action obligations. Stakeholders have also expressed concern about 
potential reductions in public participation when corrective action 
activities occur with reduced Agency oversight. In addition, some 
elements of corrective action may be difficult to specify as 
performance standards, and measuring, documenting compliance with, and 
enforcing performance standards can be difficult for facility owners/
operators and overseeing agencies. EPA requests general comment of the 
use of performance standards in the corrective action program. The 
Agency is particularly interested in comments which address the details 
of documenting and measuring compliance with performance standards and 
in approaches to ensure adequate public involvement in performance-
based corrective action activities. In addition, as discussed in 
Section II.E.2 of today's Notice, the corrective action program 
currently has two environmental indicators covering human exposures 
controlled and groundwater releases controlled. The Agency requests 
comments on the development of additional environmental indicators; the 
Agency is specifically interested in indicators targeted at ecological 
risks.
2. Less Focus on Solid Waste Management Units
    Use of the solid waste management unit (SWMU) concept as discussed 
in the 1990 proposal has led to numerous unsuccessful permit appeals. 
These permit appeals slow corrective action implementation and increase 
the transaction costs. In certain cases, the SWMU concept may also 
deter program implementors and facility owners/operators from 
addressing contamination on a site-wide basis by focusing corrective 
action resources unit-by-unit instead of more holistically.
    In general, EPA believes that a holistic approach to corrective 
action, as opposed to a unit-by-unit approach, could increase cleanup 
efficiency and reduce transaction costs. EPA requests general comment 
on focusing the corrective action program less on individual solid 
waste management units and more on holistic approaches. The Agency 
requests that commenters who support a less unit oriented corrective 
action program also address whether there is any need for 
clarifications to the corrective action jurisdiction language and/or 
the SWMU definition in order to use such an approach.

D. Using Non-RCRA Authorities for Corrective Action

    EPA recognizes that there are many authorities which could be used 
to impose or oversee corrective action at any given facility. 
Typically, these authorities include RCRA orders and permits, state 
cleanup orders, and voluntary and independent actions. In some cases, 
CERCLA authorities are also available. The Agency is concerned that, to 
date, it has not taken full advantage of the work of other programs in 
the RCRA corrective action program. In principle, EPA believes that 
when a facility is being adequately addressed it should not matter what 
authority is used or what Agency is overseeing the cleanups. In support 
of this principle, the Agency requests general comment on the use of 
non-RCRA authorities to satisfy corrective action requirements. 
Commenters should address the scope and stringency of non-RCRA 
authorities as compared to corrective action requirements and the 
ability of non-RCRA authorities to adequately involve the public and 
affected communities.

[[Page 19457]]

The Agency is also specifically interested in comments which address:
1. State Cleanup Programs
    Over half the states have independent Superfund-like authorities 
and cleanup programs; typically, these authorities and cleanup programs 
are modeled after the Federal Superfund program. In many cases, EPA 
believes these independent state authorities are substantively 
equivalent in scope and effect to the RCRA corrective action program.
    The use of state cleanup programs can offer a number of advantages 
to state and regional personnel as well as to the regulated, 
environmental and public interest communities. EPA believes these 
advantages include: providing states the ability to recover the costs 
of their program oversight; expanded opportunities for public 
participation; the ability to recover damages associated with 
contamination caused by previous owners or operators who would likely 
not be considered liable under RCRA sections 3004(u) and 3004(v); and, 
opportunities for voluntary or independent cleanups.
    Many states are already using their independent Superfund-like 
authorities to address releases of hazardous waste and hazardous 
constituents at facilities subject to corrective action, especially at 
facilities operating under interim status. The Agency is interested in 
exploring the relationship between independent state Superfund-like 
authorities and the corrective action program and, if appropriate, 
providing some level of assurance that facility owners/operators who 
complete cleanups under independent state authorities have satisfied 
RCRA corrective action obligations.
    EPA requests general comment on the use of state Superfund-like 
cleanup programs to compel or conduct cleanups at facilities subject to 
RCRA corrective action. EPA is especially interested in comments which 
address:
    (a) Scope. Whether the scope and effect of state Superfund-like 
cleanup programs are substantively equivalent to the scope and effect 
of the RCRA corrective action program.
    (b) Advantages/Disadvantages. Advantages and disadvantages which 
might be associated with using a state Superfund-like cleanup 
authority, rather than, or in addition to, an RCRA corrective action 
authority, at an operating hazardous waste management facility.
    (c) Compliance with Federal Standards. The degree to which 
compliance with state Superfund-like authorities should be assumed to 
meet corrective action requirements, including procedural requirements 
such as public participation and permitting.
    (d) Coordination with RCRA Permits. Issues which might be 
associated with coordination of state Superfund-like cleanup orders 
with RCRA permits and Federal RCRA corrective action orders.
2. Enhanced Flexibility for States With EPA-Endorsed CSGWPPs
    Current EPA policy is to provide states greater flexibility for the 
management and protection of their groundwater resources. This policy 
was stated formally in a report titled, ``Protecting the Nation's 
Ground Water: EPA's Ground Water Strategy for the 1990s'' (Publication 
21Z-1020, July 1991). The 1991 report indicated that, to the extent 
authorized by EPA statute and consistent with Agency program 
implementation objectives, EPA will defer to state policies, 
priorities, and standards once a state has developed an adequate 
groundwater protection program. EPA provided a definition of an 
adequate state groundwater protection program in a December 1992 
guidance titled, ``Final Comprehensive State Ground Water Protection 
Program Guidance'' (EPA 100-R-93-001). The focal point of the 1992 
guidance was the creation of Comprehensive State Ground Water 
Protection Programs (CSGWPPs). As discussed in the 1992 guidance, 
CSGWPPs are intended to provide a more efficient, coherent, and 
comprehensive approach to protecting the nation's groundwater 
resources.
    Developing a CSGWPP is a three-stage process. First, a state 
develops a ``core CSGWPP'' and submits it to EPA for review and 
endorsement. The core CSGWPP is only required to include one 
groundwater protection or remediation program to demonstrate whether 
the state's CSGWPP approach inconsistent with EPA guidance. Second, 
after the core CSGWPP is endorsed by EPA, joint state-EPA discussions 
are held to develop a ``multi-year planning agreement.'' The multi-year 
planning agreement will establish methods and a schedule for 
incorporating other state groundwater programs into the CSGWPP. Third, 
at the completion of the multi-year planning process, all groundwater 
protection and remediation programs conducted in the state, including 
Federal remediation programs, are included in a ``fully integrating 
CSGWPP.''
    At the time of today's Notice, EPA has endorsed five state core 
CSGWPPs; endorsement of thirteen more is anticipated by June 1996. EPA 
is committed to taking actions within its own programs to provide 
states with endorsed CSGWPPs greater flexibility in protecting their 
groundwater resources. The Agency has recently affirmed this commitment 
in, ``EPA's Commitments to Support Comprehensive State Ground Water 
Protection Programs'' EPA, 100/R-94/002, date. In the RCRA corrective 
action program, EPA committed to considering state groundwater 
classification when making groundwater use assumptions, selecting 
groundwater cleanup levels, and setting cleanup priorities.
    EPA is interested in evaluating additional opportunities to provide 
states with endorsed CSGWPPs enhanced flexibility in implementation of 
the RCRA corrective action program. EPA requests comments and 
suggestions on specific areas of flexibility that should be available 
in states with endorsed CSGWPPs. The Agency is also interested in 
suggestions and comments addressing areas where a distinction in the 
amount of flexibility afforded to states with an EPA-endorsed CSGWPPs 
would not be appropriate. For example, should states with EPA-endorsed 
CSGWPPs be provided greater flexibility than states without endorsed 
CSGWPPs in specifying groundwater cleanup levels, points of compliance 
or compliance time-frames based on state determination of current and 
future groundwater uses as recorded in an EPA-endorsed CSGWPP? 
Similarly, should states with EPA-endorsed CSGWPPs be given additional 
flexibility to prioritize oversight resources or facility-specific 
corrective action schedules?
3. Voluntary Corrective Action
    EPA requests comments on the use of state voluntary cleanup 
programs to accelerate cleanups at facilities subject to RCRA 
corrective action and the roles of EPA and states in such situations. 
EPA is specifically interested in comments which address:
    (a) Use of state voluntary cleanup programs at RCRA corrective 
action facilities. Over half the states have developed voluntary 
cleanup programs; these state voluntary cleanup programs vary 
significantly in program design, the degree to which the state offers 
guidance and oversight during the cleanup process and the review, if 
any, of the final cleanup. EPA is interested in comments which address 
the use of state voluntary cleanup programs to accelerate corrective 
action at RCRA facilities including the level of Federal review or 
endorsement, if any, necessary for such programs. Commenters who 
support Federal review or endorsement should address program criteria 
(e.g., protectiveness,

[[Page 19458]]

public participation) that EPA should use to evaluate state voluntary 
cleanup programs used to satisfy corrective action obligations.
    (b) Incentives for private parties to accelerate corrective 
actions. EPA recognizes that many facility owners/operators who might 
be inclined to accelerate corrective action voluntarily at their 
facilities may choose not to because of concerns that the Agency might 
``second-guess'' the cleanup conducted and impose additional 
requirements. EPA requests comments on incentives which can be offered 
to encourage facility owners/operators to voluntarily accelerate 
corrective action at their facilities including approaches which could 
be used to provide comfort or assurance to facility owners/operators 
who complete corrective action under a state voluntary program. In 
addition, the Agency requests comments on the degree to which 
accelerated corrective action should be based on compliance with 
general performance standards or, alternatively, more detailed guidance 
documents or regulations. Commenters who support the use of guidance 
should specify whether guidance should be developed at the state or 
Federal level, and list the existing documents that they believe would 
be applicable.
    (c) Specific site eligibility for accelerated corrective action. In 
some state voluntary cleanup programs, site eligibility for voluntary 
cleanup is limited to sites which are considered low risk (e.g., sites 
where the contamination is not highly concentrated or highly toxic). 
EPA requests comments on site eligibility for accelerated corrective 
action and whether eligibility should in any way be limited based on 
the degree of health or environmental threat present at any given 
facility. The Agency is specifically interested in comments which 
address whether, or to what extent, facilities already under real-time 
Agency oversight should be allowed to switch to an accelerated action 
pursuant to a state voluntary cleanup program.
    (d) Public participation. EPA believes that meaningful 
opportunities for public participation are essential to a successful 
corrective action program; it requests comments on the specific 
opportunities and procedures for public participation which should be 
included in any voluntary corrective action program.
    (e) Review of accelerated actions. EPA anticipates that some level 
of review by the implementing state agency will be necessary to ensure 
that accelerated corrective actions are of sufficient quality to 
fulfill corrective action requirements. The Agency requests comments on 
the level of review by the implementing state agency, if any, necessary 
to ensure the quality of accelerated corrective actions. Commenters who 
believe some level of review is necessary should address the timing and 
substance of the review (e.g., audits of facility actions and records, 
review of milestone documents), and the role, if any, of EPA in the 
review process.
    (f) Third-party oversight. Several states have established cleanup 
programs which rely on a licensed third-party overseer, rather than 
implementing agency staff, to ensure compliance with cleanup 
requirements at certain facilities. One state requires an independent 
third-party overseer to monitor compliance with all phases of the 
cleanup process at facilities and certify to the implementing agency 
when cleanup at a facility is complete. EPA believes such approaches 
may reduce the risks associated with voluntarily accelerated cleanups 
and provide necessary relief to state regulators. While development of 
a third-party oversight system is not currently under consideration at 
the Federal level, EPA requests comments on the use of state third-
party oversight programs for oversight of cleanups at facilities 
subject to RCRA corrective action.
4. Corrective Action at Interim Status Facilities
    In 1990, EPA proposed that corrective action regulations be 
included in 40 CFR Part 264 (the permitting standards). The only 
changes proposed to 40 CFR Part 265 (the interim status standards) were 
to address the need to coordinate corrective action and closure 
activities at closing interim status units and facilities. EPA's 
longstanding view has been that the requirements to address facility-
wide corrective action at interim status facilities are consistent with 
those for permitted facilities. For this reason, the Agency requests 
comments on whether the corrective action regulations should be 
developed under 40 CFR Part 265 as well as under Part 264. The Agency 
is especially interested in comments which address the trigger for 
initiation of corrective action activities at interim status 
facilities, the degree to which any corrective action requirements 
included in 40 CFR Part 265 would be independent or self-implementing 
(see, discussion of independent or self-implementing corrective action, 
below), and the incorporation of corrective action activities conducted 
while facilities are under interim status into final facility permits. 
In addition, EPA requests comments on further modifying the interim 
status requirements to include provisions for the cleanup of releases 
to groundwater from regulated units equivalent to those at 40 CFR 
264.100.
5. Independent or Self-Implementing Corrective Action
    EPA believes that the 1990 corrective action proposal appropriately 
emphasized the need for flexibility and site-specific decisions; 
however, the administrative framework proposed in 1990 relies on 
intensive oversight by a regulatory agency. In general, corrective 
action facility owners/operators initiate a cleanup only after being 
compelled to do so by a regulatory agency (e.g., in an order or 
permit). The regulatory agency then reviews and approves intermediate 
steps, such as work plans and reports, ultimately selects the remedy, 
and ensures that the remedy is implemented and achieves cleanup 
objectives. This command and control approach reduces risks associated 
with all phases of cleanup at a facility; however, it is resource 
intensive and may discourage facility owners/operators from undertaking 
voluntary or accelerated cleanup actions.
    Due to limited oversight resources, many of the lower risk 
facilities which are believed to require some form of corrective action 
have remained unaddressed. This issue has raised concerns about the 
pace and quantity of corrective action cleanups. In order to address 
these concerns and shift more of the responsibility for conducting 
corrective action activities to the regulated community, EPA is 
examining approaches to independent or self-implementing corrective 
action. By ``independent'' or ``self-implementing'' the Agency is 
referring to activities required by regulation to meet certain 
standards of performance within specified time periods without direct, 
real-time, oversight by a regulatory agency. For example, the RCRA 
regulations for hazardous waste characterization require generators of 
solid waste to determine if such wastes are considered hazardous wastes 
and, if hazardous, to manage them appropriately. Generators notify 
overseeing agencies of their waste determinations and management 
(through the biannual reporting and manifesting systems) and overseeing 
agencies periodically audit or inspect generator compliance. Similarly, 
EPA believes some corrective action activities could be sufficiently 
prescribed by regulation and carried out independently by facility 
owners/operators subject to auditing by an overseeing agency, rather 
than being

[[Page 19459]]

specified in facility specific order or permit conditions. For example, 
facility owners/operators could be required, upon identification of a 
release of hazardous waste or hazardous constituents at or from the 
facility, to conduct an initial screening investigation and take 
appropriate steps to control the release. In another example, facility 
owners/operators could be required to take whatever steps are necessary 
to certify compliance with EPA's two environmental indicators for 
corrective action. (As discussed in Section II.E.2 of today's Notice, 
the two environmental indicators for corrective action are human 
exposures controlled and groundwater releases controlled.)
    EPA believes that applying the concept of self-implementation to a 
cleanup scenario raises many issues. For example, the complexity and 
site-specific nature of corrective action, coupled with the fact that 
it requires the exercise of professional judgement (e.g., 
hydrogeologic, engineering) throughout the process, may make self-
implementation problematic. These same factors may make compliance 
monitoring and enforcement difficult. The Agency's experience with the 
self-implementing groundwater monitoring requirements in the interim 
status standards (i.e., Part 265, Subpart F) is indicative of the 
difficulties that may be associated with ensuring full compliance with 
self-implementing standards. The Agency is interested in general 
comment on the concept of independent or self-implementing corrective 
action; it is specifically interested in comments which address:
    (a) Scope. EPA requests that commenters specifically identify the 
elements of the corrective action process which they believe are 
amenable to self-implementation.
    (b) Public participation. Meaningful public participation is 
essential to the corrective action process. EPA requests that 
commenters address incorporation of public participation opportunities 
and activities in self-implemented corrective action.
    (c) Detailed guidance. An argument can be made that, without 
detailed guidance for self-implemented activities, quality will vary 
across actions. EPA requests that commenters address the degree to 
which self-implementation should rely on detailed guidance and whether 
the Agency should issue new guidance for self-implemented corrective 
action or if EPA can rely on guidance already available at the state 
and Federal level. Commenters suggesting that EPA rely on existing 
guidance should indicate the guidance documents they believe would be 
applicable. The Agency is also interested in comments which address 
approaches to ensure that facility owners/operators have access to and 
use current and appropriate guidance documents.
    (d) Record keeping and reporting. Facility owners/operators might 
be required to submit information certifying and documenting their 
compliance with self-implementing requirements. Information and 
documentation which EPA could use to assess the quality of self-
implemented actions might also be necessary. EPA requests that 
commenters address whether or not Record keeping and reporting 
requirements should be part of self-implementing corrective action. 
Commenters who support Record keeping and reporting requirements should 
address the specific requirements they believe are necessary.
    (e) Compliance Monitoring and Enforcement. Compliance with self-
implementing requirements might be monitored through regular 
inspections or periodic auditing. EPA requests comments on the ability 
of state or Federal overseeing agencies to adequately monitor and 
enforce self-implementing requirements. EPA requests that commenters 
specifically address its ability to accurately assess the quality of 
self-implemented corrective actions without ongoing Agency oversight.
    (f) Risks. Any reduction in real-time agency oversight increases 
the risks that individual facility owners/operators might attempt to 
avoid or obscure legitimate corrective action obligations. EPA requests 
comments on the potential risks associated with self-implementation of 
certain corrective action provisions and suggestions of actions that 
the Agency could take to eliminate or mitigate such risks.
6. Consistency with the CERCLA Program
    As discussed in Section III.B.1 of today's Notice many facilities 
subject to corrective action are also subject to cleanup under the 
Federal CERCLA program. At some of these facilities, RCRA corrective 
actions are proceeding concurrently with CERCLA cleanups (e.g., the 
RCRA corrective action is addressing SWMUs while the CERCLA cleanup is 
focusing on other releases). At other facilities, cleanup is being 
addressed by one authority but final action under the other authority 
is being deferred (e.g., a site undergoing RCRA corrective action but 
still on the NPL). In general, EPA believes coordination of cleanup 
activities at facilities with overlapping RCRA and CERCLA liability is 
appropriate; however, the Agency continues to hear concerns over 
duplication of procedural and substantive cleanup requirements, 
including oversight. Recently, EPA established a multi-agency and state 
workgroup to examine issues associated with overlapping cleanup 
obligations. Through the ``Lead Regulator Workgroup'' the Agency hopes 
to identify specific strategies for expediting cleanups though reducing 
or eliminating the transaction costs that may be associated with 
overlapping cleanup obligations. The Agency requests comments on the 
issue of coordination of overlapping RCRA and CERCLA cleanup 
requirements and suggestions for improvement to the Agency's current 
policy and regulatory approaches to coordination. For example, would 
using of the same terms for remedial activities, such as investigations 
or remedy selection, improve coordination at sites with overlapping 
RCRA corrective action and CERCLA cleanup obligations? Similarly, 
should the remedy selection criteria between the two programs be 
explicitly conformed?
    While EPA's focus is on coordination between the RCRA and CERCLA 
programs, it also requests comments on coordination of overlapping 
state and Federal cleanup obligations.
7. ASTM RBCA Standard
    EPA expects the number of identified releases from underground 
storage tanks (USTs) to increase to more than 400,000 as the 1998 
deadline for upgrading, replacing, or closing UST systems approaches. 
To meet the challenge of addressing these releases in a timely manner, 
EPA is working with states to streamline their administrative processes 
and to encourage the use of expedited site assessment and alternative 
cleanup technologies. The Agency is also encouraging state and local 
agencies to incorporate risk-based decision-making into their 
corrective action programs.
    Risk based decision-making is a process UST implementing agencies 
can use to: focus site assessment data gathering; conduct initial 
response actions; categorize or classify sites; determine what, if any, 
further action is necessary to remediate a site; help establish cleanup 
goals; and decide on the level of oversight provided to cleanups 
conducted by UST owners and operators. To provide support for the use 
of risk-based decision-making, EPA's Office of Underground Storage 
Tanks, within the Office of Solid Waste and Emergency Response (OSWER), 
issued Directive 9610.17: Use of Risk-

[[Page 19460]]

Based Decision-Making in UST Corrective Action Programs. The American 
Society for Testing and Materials (ASTM) has also developed guidance 
addressing risk-based decision-making in its recently issued standard 
ASTM E1739-95, Risk Based Corrective Action Applied at Petroleum 
Release Sites (referred to as RBCA). The ASTM standard is one example 
of how risk-based decision-making can be incorporated into state UST 
corrective action programs. EPA believes the ASTM standard may be a 
good starting point for the development of a risk-based process 
tailored to applicable state and local laws and regulatory practices. 
In addition, state UST RBCA processes may often be applicable to 
petroleum releases from sources other than leaking USTs.
    EPA requests general comment on the use of the ASTM RBCA approach 
in the corrective action program; it is especially interested in 
comments which address: the appropriateness of using RBCA-like programs 
to address releases from sources other than leaking underground storage 
tanks (e.g., petroleum spills and contamination at refineries); whether 
the ASTM RBCA approach is acceptable for releases of chemicals other 
than petroleum products; and, whether there have been, or could be, 
conflicts between the result of a cleanup conducted using the ASTM RBCA 
approach and cleanups conducted using the RCRA corrective action or 
CERCLA approaches.
8. Definition of Facility for Corrective Action
    As discussed in Section III.B.3.a of today's Notice, EPA's 
definition of facility for purposes of corrective action has been 
problematic in some situations. In certain circumstances, the concept 
of contiguity can bring large tracts of land not involved with 
hazardous waste management under corrective action authorities. In many 
cases, these large tracts of land are being (or could be) addressed 
using another cleanup authority (e.g., CERCLA or state cleanup 
programs); in other cases, they may not be a high priority for cleanup. 
For example, EPA indicated in the 1990 proposal that, if five acres of 
a one hundred-acre parcel of land were leased to a company that engaged 
in hazardous waste management, the facility for purposes of corrective 
action could be the entire 100-acre parcel. EPA also stated that if (in 
the same example) the lessee/operator also owned 20 acres of land 
adjacent to the 100-acre parcel (but not necessarily adjacent to the 
five acres used for hazardous waste management), the facility might 
include that 20 acres as well. (See, 55 FR 30808, July 27, 1990.) In 
practice, EPA has found that imposing this interpretation of contiguity 
on situations such industrial parks, port districts, and large areas of 
Federally owned land (e.g., national forests) can, in some cases, force 
the Agency to address sites which are not engaged in hazardous waste 
management and which may not be a high priority for cleanup using 
limited corrective action resources. Another concern has been that it 
may be seen as inequitable to require the operator of a small facility 
to be responsible for the cleanup of a much larger parcel that he or 
she does not own. Accordingly, EPA is requesting comment on whether 
corrective action requirements should apply more narrowly (e.g., only 
to the portion of the facility under the control of the operator 
engaged in hazardous waste management). EPA requests that commenters 
endorsing a narrow definition of facility address the concern that it 
would encourage facility owners/operators to narrowly define their 
facilities in an effort to avoid legitimate corrective action 
obligations and also address other potential consequences and concerns, 
if any, of a facility definition which is too narrow.

E. Balance Between Site-specific Flexibility and National Consistency

    To account for the variety of circumstances at corrective action 
facilities, EPA has emphasized a flexible, facility-specific approach 
to cleanup; however, using a facility-specific approach can raise 
issues associated with national consistency and minimum national 
standards. The Agency requests general comment on the appropriate 
balance between national consistency and site-specific decision-making 
in the corrective action program. The Agency is specifically interested 
in comments which address:
1. Land Use
    EPA has been criticized for too often assuming that the future uses 
of facilities undergoing cleanups will be residential. Residential use 
is considered unrestricted land use and carries the greatest potential 
for exposures and the most conservative exposure assessments. As 
discussed in Section III.C.5.j of today's Notice, the Agency believes 
that the 1990 proposal adequately provides for reasonable consideration 
of future land use during development of remedial goals at corrective 
action facilities; however, it recognizes that the uncertainties 
surrounding land use assumptions may cause many program implementors 
and facility owners/operators to choose a conservative approach to 
future land use issues. Today the Agency invites comment on the general 
issues associated with consideration of future land use in the 
corrective action context. EPA is specifically interested in comments 
which address:
    (a) Effect. EPA is interested in comments on the effect of a non-
residential land use determination on a facility owner/operator's 
corrective action obligations and the need (if any) for additional 
regulations to address incorporation of land use determination in the 
corrective action process. For example, how, if at all, should non-
residential land use determinations affect the scope of facility 
investigations? Should land use determinations be explicitly required 
as part of remedy selection?
    (b) Institutional controls. When final remedies rely on non-
residential exposure assumptions, steps must be taken to ensure the 
non-residential exposure assumptions remain valid and to trigger 
additional cleanups should exposures change. EPA is interested in 
comments which address the role of the government, if any, in ensuring 
the continued application of exposure assumptions and in imposing 
additional cleanups as necessary. In addition to the role of 
government, commenters should list other factors, incentives or 
institutions they believe will play a role in this process. The Agency 
is particularly interested in comment on the adequacy of institutional 
controls (e.g., deed notices, easements, or local land use controls) to 
ensure that changes in land use trigger additional cleanups as 
appropriate, the advantages or disadvantages associated with such 
controls as opposed to direct governmental oversight.
    (c) Additional cleanup necessitated by changing land use. EPA 
requests that commenters specifically address completion of any 
additional increment of cleanup necessitated by changing land use. The 
Agency is also interested in comments which address the continuing 
obligation, if any, of the facility owner/operator to ensure that 
(should land use change) additional cleanups will be effected, the 
obligation (if any) on the person who changes the land use at the 
facility, the legal mechanisms that might be used to impose these 
obligations, the role of the Agency and/or facility owner/operator in 
monitoring land use changes and the necessity, if any, for the facility 
owner/operator or others to provide financial assurance in case an 
additional cleanup should become necessary.
    (d) Periodic review of remedies. The Superfund program periodically 
reviews

[[Page 19461]]

remedies to ensure their continued effectiveness. EPA requests 
commenters address the need for and potential benefits or problems 
associated with periodic review of RCRA corrective action remedies. 
Commenters who believe periodic review of remedies is desirable should 
address the frequency and content of such reviews.
2. Points of Compliance
    The location at which media cleanup levels must be attained (point 
of compliance or POC) has significant implications for the scope, 
magnitude and cost of corrective actions. Comments regarding the POC 
for corrective actions were received in response to the 1990 proposal; 
this issue has remained controversial and EPA believes it is 
appropriate to provide another opportunity for public review and 
comment at this time. The Agency requests general comment on its 
implementation of the point of compliance concept in the corrective 
action program and other POC issues. EPA is especially interested in 
comments which address:
    (a) Alternatives to the throughout-the-plume/unit boundary POC. EPA 
requests suggestions on alternative POCs, especially groundwater POCs. 
Commenters should address the factors, scenarios, and decision-making 
criteria that should be considered in justifying alternatives to a 
throughout-the-plume/unit boundary POC (e.g., a facility boundary POC). 
In supplying input on alternative POCs for groundwater, commenters 
should consider the Agency's expectations for groundwater cleanups, (1) 
returning groundwater to its maximum beneficial uses wherever 
practicable; (2) preventing or minimizing further migration, preventing 
exposure to the contaminated groundwater and evaluating further risk-
reduction; and, (3) controlling or eliminating surface and subsurface 
sources of groundwater contamination. Commenters who believe that 
changes to EPA's expectations for groundwater are necessary to support 
appropriate POCs are also invited to comment on EPA's groundwater 
expectations in general.
    (b) Points of compliance for stabilization. EPA requests comments 
on whether it should develop a stabilization point of compliance or to 
support the Stabilization Initiative. As discussed in Section II.E.1 of 
today's Notice, the Stabilization Initiative is EPA's primary 
corrective action implementation strategy. Stabilization actions for 
groundwater often involve source control and hydraulic containment. A 
stabilization point of compliance could be used to help define the 
location at which a performance measure of groundwater plume 
containment would be measured.
    (c) Point of compliance for surface water. Typically, the point of 
compliance for releases to surface water is at the point where the 
release enters the surface water. EPA requests comments regarding 
factors that should be considered in selecting the appropriate 
standards that must be achieved at the point where the release enters 
surface water. For example, is it appropriate to consider the mixing 
that occurs within the receiving surface water when establishing points 
of compliance for surface water discharges? Mixing zones are often 
considered when evaluating the acceptability of waste water discharges 
regulated by the National Pollution Discharge Elimination System 
(NPDES).
    EPA also requests comments on the differences between evaluating 
the actual and potential impact from point source ``pipeline'' NPDES 
discharge and a more widespread discharge of groundwater entering as 
base-flow into the surface water body. Of particular interest 
associated with groundwater discharge to surface water is the potential 
for, and impacts from accumulation of contaminants in sediments. Also, 
the Agency is interested in feedback regarding the degree to which 
monitoring would be capable of assessing impacts of both the short- and 
long-term discharge of groundwater to surface and the associated 
standard of protection being afforded. The Agency is interested in 
examples where a discharge to surface water of certain loadings of 
contaminated groundwater was determined to be harmful or not harmful to 
human or ecologic receptors.
3. Standardized Lists of Action Levels and Media Cleanup Levels
    The attempt to balance flexibility with the need for national 
consistency can be particularly contentious in the area of media-
specific action and cleanup levels. Some stakeholders argue that lists 
of clearly defined action and cleanup levels will reduce transaction 
costs, increase the pace of cleanups and encourage voluntary actions; 
many program implementors and facility owners/operators currently use 
lists of standardized action or cleanup levels when implementing 
corrective action requirements (e.g., some states have lists of 
standardized media-specific cleanup levels). Other stakeholders argue 
that standardized lists of action or cleanup levels are too often 
developed based on conservative residential exposure scenarios, can be 
too easily misapplied, and often result in overly stringent cleanup 
actions. As an alternative to lists of standardized action and cleanup 
levels, some Agencies have developed standardized approaches (i.e., 
formulas) that allow for consideration of site-specific conditions. EPA 
has recently taken this approach in developing the Superfund Soil 
Screening Guidance (see, Section II.F.6.b of today's Notice).
    EPA invites general comments and suggestions pertaining to the 
development, distribution and use of media-specific action and cleanup 
levels. The Agency is specifically interested in comments which address 
the advantages, disadvantages and preferences regarding standardized 
approaches verses publishing lists of standardized levels (note, lists 
of standardized levels would be developed using standardized 
approaches, the difference is in consideration of site-specific 
factors, such as depth to groundwater). Since many states have already 
developed standardized approaches or lists of action and cleanup 
levels, EPA requests commenters also address the role of EPA in 
developing, distributing, and periodically updating national approaches 
or lists and the relationship of any standardized approaches or lists 
developed at the national level to existing state programs.
4. Area Wide Contamination Issues
    In some cases corrective action facilities are located in areas of 
widely dispersed contamination. For example, some corrective action 
facilities may be located in tidal areas which were reclaimed by 
placement of fill materials now considered contaminated. In other 
cases, an RCRA corrective action facility may be impacted by releases 
from off-site source areas not subject to RCRA corrective action (e.g., 
sources at an adjacent facility not seeking an RCRA permit). In some of 
these circumstances, cleanup of the corrective action facility to risk 
based media cleanup levels, while desirable in the long term, might not 
make sense in the short term because contamination from off-site or 
otherwise unrelated sources would quickly re-contaminate the facility. 
EPA requests comments on application of corrective action requirements 
in areas of widely dispersed contamination and when the RCRA facility 
is otherwise impacted by releases from off-site sources. EPA requests 
that commenters specifically address the obligation, if any, a facility 
owner/operator should have to address the area-wide contamination to 
the extent it is present at his or her facility. If commenters

[[Page 19462]]

believe facility owners/operators should not be required to address 
area-wide contamination, the Agency requests comments on the continuing 
obligation under RCRA, if any, such facility owners/operators should 
have for an eventual cleanup to risk based levels.
5. Ecological Risk
    As described in Section III.C.5.g of today's Notice, EPA's mandate 
is to protect both human health and the environment; therefore, 
assessing risks to ecologic receptors may be warranted in the context 
of implementing RCRA corrective action at many sites. The Agency 
recognizes, however, that assessing impact to ecologic receptors from 
environmental contamination is a rapidly evolving field of study. 
Therefore, the Agency is interested in receiving comments and data 
pertaining to: state-of-the-art approaches and tools for conducting 
ecologic-risk assessment, including initial screening as well as 
detailed assessments; availability of identification of useful 
guidance; availability of standardized eco-based action levels and 
cleanup levels, or standardized approaches for developing site-specific 
levels; site-specific examples of impacts to ecologic receptors from 
RCRA corrective action sites, and examples of successful remedial 
actions implemented to address these impacts; limitations associated 
with assessing ecologic risks, and taking remedial actions to protect 
ecologic receptors in general; specific needs for additional guidance 
and research; and suggestions regarding the scope of specific 
corrective action regulations dealing with assessment and protection of 
ecologic receptors.
6. Risk Assessment Methods
    EPA has been criticized for relying on uniform, ``one size fits 
all'' risk assessment methods, particularly in the context of its 
remedial action programs. According to critics, often, the default 
assumptions or models incorporated into Agency risk assessment guidance 
documents do not adequately reflect site-specific conditions. The use 
of empirical data collected from a site, or methods developed expressly 
for application at specific sites or types of sites, could result in 
more valid and reliable characterizations of risks to human health and 
the environment. On the other hand, not every site would benefit from a 
comprehensive site-specific evaluation. EPA thus needs to strike a 
balance between the ease of uniform risk assessment methods and the 
improved targeting and effectiveness associated with accounting for 
site-specific conditions.
    EPA is interested in the effect of provisions which would encourage 
the expanded consideration of site-specific conditions and other 
innovative risk assessment methods where such provisions would enhance 
program effectiveness or efficiency. For example, how could the Agency 
provide for the use of site-specific or innovative approaches to risk 
assessment while still enabling EPA or state agencies to maintain 
adequate oversight? Are there mechanisms available for risk assessment 
to be independently validated as reasonable characterizations of site 
risk, thereby reducing the demands for technical oversight and the time 
required to approve site-specific decisions. What incentives (if any) 
should EPA provide to encourage these efforts? What provisions or 
procedures, either in the 1990 proposal or in existing regulations, 
inhibit the effective use of site-specific risk assessments?
    Significant improvements in risk assessment methodology have 
occurred since the 1990 proposal. EPA is interested in capturing these 
benefits in the corrective action program. The Agency thus seeks 
comments concerning how RCRA corrective action regulations might be 
constructed so as to maximize the extent to which these improvements 
are reflected in site evaluations, as well as the development and 
selection of remedial alternatives. Further, EPA is interested in 
comments addressing actions the Agency could take to act as a positive 
force for change in the evolutionary improvement of risk assessment 
methods.

F. Public Participation and Environmental Justice

    EPA intends for the final corrective action regulations to be 
consistent with the Agency's efforts to improve permitting and public 
participation while providing sufficient flexibility to meet site-
specific goals. The Agency believes that facility owners/operators, 
state environmental agencies, tribes, and private citizens are often in 
the best positions to determine what modes of communication and 
participation will work best in their communities. EPA believes the 
final rule should provide the flexibility necessary to find the best 
local solutions.
    EPA requests general comment on the role of public participation in 
the corrective action program and on opportunities to improve public 
participation, especially the participation of any communities which 
have not been effectively involved in the corrective action process to 
date. The Agency is particularly interested in comments which address:
    (a) Public participation tools. Currently, most public 
participation opportunities center around use of public notices 
(usually in a local newspaper) and public meetings. EPA requests that 
commenters address the use of additional public participation tools 
(such as public participation plans, community advisory panels, fact 
sheets, workshops, on-line communications, and informal meetings) which 
might be more effective in reaching communities.
    (b) Public participation responsibility. EPA believes there may be 
situations where the corrective action process would benefit if the 
facility initiated the permit modifications under 40 CFR 270.42, rather 
than the Agency initiating permit modifications under 40 CFR 270.41. 
For instance, if a facility owner/operator must undertake an interim 
action, it may be more appropriate for the facility to request a permit 
modification. EPA anticipates that allowing this flexibility would 
improve interaction between the public and the facility and allow 
owners/operators to streamline the process by combining modifications, 
where appropriate. We request comment on this approach and the use of 
owner/operator initiated permit modifications to provide public 
participation opportunities.
    (c) Tailoring public participation to the level of interest. EPA 
encourages facility owners/operators and regulatory agencies to choose 
a level of public participation that is commensurate with the level of 
public interest. The Agency is aware of innovative approaches to public 
participation where the level of public participation opportunities 
increase dramatically if a certain number of citizens from the affected 
community request increase public participation. The Agency realizes 
that every corrective action process is different and may involve 
overlapping and varied activities. EPA requests comments on public 
participation tools which could be used to tailor public participation 
opportunities to the level of interest in the affected community and to 
the significance of any given corrective action activity. The Agency 
requests that commenters who support tailoring public participation 
requirements to the level of interest at any given facility also 
address the degree to which the Agency or the facility owner/operator 
should take steps to inform the public of the onset of corrective 
actions to initiate public interest.

[[Page 19463]]

G. When Permits Can Be Terminated

    The 1990 proposal contained a provision requiring owners and 
operators to obtain RCRA permits for the entire ``period necessary to 
comply with the requirements of Subpart S'' (proposed 40 CFR 270.1(c)). 
As discussed in the preamble to the 1990 proposal (see, 55 FR at 30846) 
this was intended to apply even where the hazardous waste management 
activities that originally triggered the need to obtain a permit were 
no longer continuing. The aim of this provision was to ensure that 
corrective action was carried to its conclusion. Furthermore, EPA 
believed that if corrective action obligations ceased when the need for 
the permit otherwise ended, an artificial incentive would be created to 
terminate viable facilities (e.g., facility owners/operators would 
choose to curtail management of hazardous waste--and the need for an 
RCRA permit--in to avoid completing corrective actions).
    When the CAMU rule was promulgated, EPA reiterated its view that 
facilities undergoing corrective action must continue to renew their 
permits, even if the original regulated hazardous waste activity has 
ceased, until the corrective action has been completed. See 58 FR at 
8676-77. EPA clarified that this obligation arises under existing 
statutes and regulations, even pending final promulgation of the 
additional language proposed in 1990. EPA indicated at that time that 
it would determine whether further regulatory clarification of this 
issue was necessary.
    At this time, EPA is inviting comment on whether, as a policy 
matter, extended permitting is the best approach to ensuring that 
corrective action is carried out over the long term, or whether other 
alternatives should be considered. For example, one approach might be 
to terminate the permit when active hazard waste management ceased, but 
to continue the cleanup obligation through some other vehicle, possibly 
an enforcement order. Any alternatives proposed should address such 
matters as the reliability of the approach over the very long term, the 
level of administrative oversight required, the legal basis in RCRA for 
imposing the requirement if a permit is not issued and whether the RCRA 
statute would allow terminating a permit before the corrective action 
was complete. Commenters proposing alternatives are particularly 
encouraged to address options for the situation where engineering or 
institutional controls must be managed indefinitely into the future and 
whether permits can or should be terminated when the final remedy 
involves some form of engineering or institutional controls. Commenters 
who support permit termination when final remedies involve engineering 
or institutional controls are encouraged to address what other 
mechanisms, if any, should be used to ensure continued reliability of 
the engineering or institutional control and the role of EPA, if any, 
in imposing, maintaining and enforcing such mechanisms.

H. Effect of Property Transfer on Corrective Action Requirements

    The transfer of part of a facility subject to corrective action 
creates questions regarding which corrective action obligations 
continue at the transferred parcel and which party has the corrective 
action responsibility. The 1990 proposal discussed this issue, and EPA 
is still interested in general comments in this area. The 1990 proposal 
identified two options: requiring the permittee to complete corrective 
action even on parcels sold to others, and requiring the purchaser of 
the parcel to complete the corrective action. EPA continues to be 
interested in comments on these two options.
    A related issue is the point in time at which the extent of the 
facility is defined. For example, if a parcel were transferred after a 
permit application had been submitted, but before a permit or 
corrective action order was issued, the implications might be different 
from if the transfer occurred after the permit was issued. The 1990 
proposal also suggested that it might make a difference whether the 
transfer occurred before implementation of the remedy. Since RCRA 
corrective action requirements apply to the current owner and operator 
of an RCRA facility and do not routinely extend to past facility 
owners/operators, EPA believes there may be some incentive for facility 
owners/operators to sell portions of their facilities before corrective 
action requirements can be imposed. EPA is aware of situations where a 
facility owner/operator has sold entire facilities, excluding only the 
closed RCRA regulated units, in what seems to be an effort to avoid 
application of RCRA corrective action requirements. While EPA has 
numerous authorities that could be used to address cleanup requirements 
even after portions of the facility had been sold, EPA believes 
application of these other authorities, rather than RCRA corrective 
action authorities, could increase transaction costs and delay 
cleanups.

I. Financial Assurance for Corrective Action

    Currently, Financial Assurance for Corrective Action or FACA is 
required under 40 CFR 264.101. More detailed requirements for financial 
assurance for corrective action were proposed on October 24, 1986 (51 
FR 37854) and in the 1990 proposal. EPA requests general comment on the 
need for detailed corrective action financial assurance regulations and 
the utility of the 1986 and 1990 proposals as guidance in this area. 
Commenters should address whether regulations or guidance would better 
promote the goals of the corrective action program and financial 
assurance for corrective action, and whether the flexibility inherent 
in the FACA proposals has been useful or detrimental. In addition, EPA 
is interested in comments which address:
    (a) Timing of financial assurance. EPA requests commenters address 
both the stages in the corrective action process where FACA 
requirements have proven most useful (e.g., should financial assurance 
be required before a remedy is selected, perhaps to ensure completion 
of facility investigations) and the stages, if any, where FACA 
requirements have been of limited utility. In its previous notices, EPA 
has said that financial assurance should be required at the time of 
remedy selection. Is this still an appropriate policy? EPA is 
especially interested in comments that address whether financial 
assurance has been an impediment to corrective actions due to the 
investment entailed. In addition, the Agency requests comments on how 
the amount of financial assurance required should be determined. For 
example, should financial assurance be required for operation and 
maintenance costs in perpetuity or should it be required for a 
standardized length of time (e.g., five, ten or twenty years)? Should 
the financial assurance timing be adjusted to address interim measures 
and support the stabilization initiative? Because cost estimations at 
certain stages in the process can be inaccurate, should financial 
assurance requirements cover shorter time frames, such as two years? 
Should EPA be concerned with financial assurance for short term 
investigation and construction costs, or should we focus on assuring 
long term operations and maintenance expenses?
    (b) Design of a FACA rule. Commenters who believe that EPA should 
promulgate detailed regulations on financial assurance for corrective 
action should address the design of such rules. Alternatively, are the 
current general rules sufficient or more

[[Page 19464]]

appropriate? Are there algorithms or decision guidelines which have 
proven successful in ensuring adequate financial assurance; should EPA 
adopt these guidelines as guidance or in regulation for corrective 
action financial assurance? How should financial capability enter into 
decisions on stabilization or corrective measures? How well is the 
current financial assurance for corrective action program working? EPA 
is interested in alternative approaches to ensuring the completion of 
corrective actions. For example, are there particular state rules which 
have proven effective in dealing with both financially sound and 
financially weak firms? Are there other clean up programs which address 
financial assurance more effectively than the current corrective action 
program? Should evidence of corporate commitments to cleanups such as 
continuing construction and progress affect financial assurance 
requirements? If so, how?
    (d) Cost estimates. EPA requests that commenters address the 
accuracy and timing of FACA cost estimates. EPA is interested in 
comments which address the causes for differences among FACA estimates 
at various stages in the corrective action process, differences between 
estimates and actual figures, particular stages of the corrective 
action process which are more prone to cost errors than others, the 
time period over which cost estimates are most accurate, and the 
relationship between costs reported to permitting authorities and costs 
reported in financial reports. Some permittees have suggested that cost 
estimates cover only a period of two to three years with annual 
updates. Would this be adequate and appropriate?
    (e) Discounting. EPA requests that commenters address the use of 
discounting in the FACA process. For example, would discounting produce 
better estimates of corrective action costs or change corrective action 
decisions? If commenters believe discounting is appropriate, the Agency 
requests that comments address the effect of discounting on FACA 
instruments, appropriate discount factors and time frames and, if 
discounting is used, the bases for requiring or not requiring FACA for 
the whole process.
    (f) Use of the 1986 Proposal As Guidance. EPA requests that 
commenters provide information on when the 1986 proposal has been 
useful as guidance. Have the mechanisms in the proposal provided for 
clean ups or clean up activities which would not have occurred without 
them? Have the mechanisms or requirements diverted resources from 
actual clean up activities? Are the proposal mechanisms unnecessary, 
insufficient, or outdated?

J. State Authorization

    EPA requests comments on general issues associated with state 
authorization for corrective action and the relative roles of state and 
Federal agencies in authorized states. EPA is particularly interested 
in comments which address:
    (a) Rate and pace of authorization. EPA intends for states to be 
the primary implementors of the RCRA program. Although 49 states and 
territories are authorized to implement the RCRA program, many of these 
states are also authorized for significant amendments to the RCRA 
program, including 29 states which are authorized for corrective 
action. EPA requests comments on incentives (and disincentives) to 
corrective action authorization and suggestions for improving the 
efficiency of authorization processes.
    (b) Role of EPA in authorized states. As more states become 
authorized, EPA's role is changing. For example, in many states EPA is 
doing much less direct program implementation. EPA is interested in 
defining its role in authorized states and in developing oversight 
models which use state and Federal resources most efficiently (e.g., 
focus on results, rather than process).
    (c) Effect of promulgation of corrective action rules on authorized 
state programs. Final corrective action regulations will be promulgated 
pursuant to HSWA. Ordinarily, more stringent HSWA rules are immediately 
effective in authorized states (RCRA Section 3006(g)(1). However, EPA 
is concerned about potential disruptions to ongoing cleanup being 
conducted pursuant to authorized state corrective action programs and 
does not want authorized state corrective action programs to revert 
back to EPA. Therefore, in 1990, EPA proposed that any revisions to 
final Subpart S corrective action regulations would not become 
effective in states authorized for Subpart S until those states had 
adopted the new rules. Currently 29 states are authorized for the 
existing corrective action regulations, EPA believes the same logic 
that led it to propose that revisions to the corrective action 
regulations proposed in 1990 would not become effective in authorized 
states until states adopted them could arguably be applied to the 
current situation; therefore, EPA requests comments on whether final 
corrective action regulations should not be effective in states 
authorized for the existing corrective action program until those 
states adopt the final rules. EPA also requests comments on approaches 
to authorization which will minimize disruption of existing state 
corrective action programs upon promulgation of new Federal corrective 
action requirements.

    Dated: April 12, 1996.
Carol M. Browner,
Administrator.
[FR Doc. 96-9707 Filed 4-30-96; 8:45 am]
BILLING CODE 6560-50-P