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