[Federal Register Volume 66, Number 191 (Tuesday, October 2, 2001)]
[Notices]
[Pages 50195-50197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24603]


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

ENVIRONMENTAL PROTECTION AGENCY

[FRL-7070-6]


Announcement of Availability and Request for Comment on 
``Recognizing Completion of Corrective Action Activities at RCRA 
Facilities'' Guidance

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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

SUMMARY: The intent of this notice is to announce the availability of 
the ``Recognizing Completion of Corrective Action Activities at RCRA 
Facilities'' draft guidance memorandum, and invite public comment. By 
inviting comment, we hope to encourage greater involvement by States 
the regulated community, members of the public, and other stakeholders.

DATES: Comments may be submitted until November 1, 2001.

ADDRESSES: If you wish to comment on the draft guidance, you should 
send an original and two copies of your comments, referencing docket 
number F-2001-CCAA-FFFFF. If using regular U.S. Postal Service mail to: 
RCRA Docket Information Center, U.S. Environmental Protection Agency 
Headquarters (EPA HQ), Office of Solid Waste, Ariel Rios Building 
(5305G), 1200 Pennsylvania Avenue NW., Washington, DC 20460-0002. If 
using special delivery such as overnight express service send to: RCRA 
Docket Information Center (RIC), Crystal Gateway I, 1235 Jefferson 
Davis Highway, First Floor, Arlington, VA 22202. Hand deliveries of 
comments should be made to the Arlington, VA address above. You may 
also submit comments electronically through the internet to: [email protected]. Comments in electronic format must also reference the 
docket number F-2001-CCAA-FFFFF. If you choose to submit your comments 
electronically, you should submit them as an ASCII file and should 
avoid the use of special characters and any form of encryption.
    You should not submit electronically confidential business 
information (CBI). You must submit an original and two copies of CBI 
under separate cover to: RCRA CBI Document Control Officer, Office of 
Solid Waste, U.S. EPA, Ariel Rios Building (5303W), 1200 Pennsylvania 
Avenue NW, Washington DC 20460-0002.
    Any public comment we receive and supporting materials will be 
available for viewing in the RCRA Information Center (RIC), located at 
Crystal Gateway

[[Page 50196]]

I, First Floor, 1235 Jefferson Davis Highway, Arlington, VA. The RIC is 
open from 9 a.m. to 4 p.m., Monday through Friday, excluding federal 
holidays. To review docket materials, we recommend that you make an 
appointment by calling 703-603-9230. You may copy a maximum of 100 
pages from any regulatory docket at no charge. Additional copies cost 
$0.15 per page. The index and some supporting materials are available 
electronically. See the Supplementary Information section of this 
Federal Register notice for information on accessing the index and 
these supporting materials.
    The Agency is posting this document on the Corrective Action 
website: http://www.epa.gov/correctiveaction. If you would like to 
receive a hard copy, please call the RCRA Hotline at 800-424-0346 or 
TDD 800-553-7672 (hearing impaired). In the Washington, DC, 
metropolitan area, call 703-412-9810 or TDD 703-412-3323.
    For more detailed information on specific aspects of the draft 
guidance document, contact Barbara Foster, Office of Solid Waste 5303W, 
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW, 
Washington, DC 20460, (703-308-7057), ([email protected]).

SUPPLEMENTARY INFORMATION: The draft guidance document will be 
available on the Internet at: http://www.epa.gov/correctiveaction.completion of corrective action activities. This 
guidance will take the form of a memorandum from EPA headquarters to 
the Regional offices. EPA developed this memorandum to provide guidance 
to EPA and State regulators in recognizing completion determinations at 
RCRA treatment, storage, and disposal facilities. By recognizing 
completion of corrective action activities, the agency can inform the 
owner or operator that RCRA corrective action is complete at the 
facility. This information can promote transfer of ownership of the 
property and, in some cases, can help return previously used commercial 
and industrial properties, or ``brownfields,'' to productive use.
    The official record for this notice will be kept in paper form. 
Accordingly, we will transfer all comment and input received 
electronically into paper form and place them in the official record, 
which also will include all comments submitted directly in writing. The 
official record is the paper record maintained at the RCRA Information 
Center.
    All input will be considered thoroughly and seriously by EPA. EPA 
will not immediately reply to commenters electronically other than to 
seek clarification of electronic comments that my be garbled in 
transmission or during conversion to paper form, as discussed above.

    Dated: September 25, 2001.
Elizabeth Cotsworth,
Director, Office of Solid Waste.

Memorandum

    Subject: Recognizing Completion of Corrective Action Activities at 
RCRA Facilities
    From: OSWER OECA
    To: RCRA Division Directors, Regions I-X Enforcement Division 
Directors, Regions I-X Regional Counsel
    This memorandum provides guidance to the Regions and the authorized 
States on acknowledging completion of corrective action activities at 
RCRA treatment, storage and disposal facilities.\1\ It provides 
guidance on when completion determinations should be made, and the 
appropriate procedures EPA and the authorized States should follow when 
making completion of corrective action determinations.\2\
---------------------------------------------------------------------------

    \1\ The RCRA statutory provisions and EPA regulations referenced 
in this document contain legally binding requirements. This document 
does not substitute for those provisions or regulations, nor is it a 
regulation itself. Thus, it does not impose legally-binding 
requirements on EPA, States, or the regulated community, and may not 
apply to a particular situation based upon the circumstances. EPA 
and State decisionmakers retain the discretion to adopt approaches 
on a case-by-case basis that differ from this guidance where 
appropriate. Any decisions regarding a particular facility will be 
made based on the applicable statutes and regulations. Therefore, 
interested parties are free to raise questions and objections about 
the appropriateness of the application of this guidance to a 
particular situation, and EPA will consider whether or not the 
recommendations or interpretations in the guidance are appropriate 
in that situation. EPA may change this guidance in the future.
    \2\ ``Completion of corrective action'' refers, for the purposes 
of this memorandum, to the satisfaction of obligations pertaining to 
past releases. Nothing in this memorandum is meant to address 
obligations regarding future releases at a facility. For example, 
the fact that the Agency has determined, at a permitted facility, 
that cleanup of past releases is ``complete,'' would not affect the 
facility's permitting obligation to report and clean up future 
releases at the facility.
---------------------------------------------------------------------------

Why Recognize Completion of Corrective Action?

    An official determination that corrective action is complete, made 
through appropriate procedures, benefits the owner or operator of the 
facility, the regulatory agency implementing the corrective action, and 
the public. By making a formal completion determination, the regulatory 
agency (EPA or the authorized State \3\) can inform the owner or 
operator of a facility that RCRA corrective action is complete at the 
facility. This information can promote transfer of ownership of the 
property and, in some cases, can help return previously used commercial 
and industrial properties, or ``brownfields,'' to productive use. 
Further, once the regulatory agency implementing corrective action 
makes a determination that corrective action is complete, it can remove 
that facility from its workload universe and focus agency resources on 
other facilities. Finally, because completion determinations should be 
made through a process that provides adequate public involvement, the 
process of making a formal completion determination assures the public 
an opportunity to review and comment on the cleanup, and to pursue 
available administrative and judicial challenges to the agency's 
decision.\4\
---------------------------------------------------------------------------

    \3\ Authorized State for purposes of this memo refers to a State 
with an authorized corrective action program. It should be noted 
that in authorized States, EPA may be the lead Agency implementing 
corrective action at a facility under the authority of RCRA section 
3008(h).
    \4\ The Agency anticipates that at facilities where meaningful 
public involvement begins early in the corrective action process, 
challenges at this point are less likely.
---------------------------------------------------------------------------

When Should an Agency Make a Determination That Corrective Action Is 
Complete?

    At some facilities, EPA or the authorized State will determine that 
no corrective action is necessary. At facilities where corrective 
action is necessary, the regulatory agency should make a determination 
that corrective action is complete when a review of the remedy 
indicates that releases have been addressed as necessary to protect 
human health and the environment (see 40 CFR 264.101). Compliance with 
corrective action requirements should be evaluated against applicable 
requirements, e.g., the permit, a RCRA section 3008(h) order, or 40 CFR 
Part 264, Subart F. Regulatory agencies should consider the May 1, 1996 
Advance Notice of Proposed Rulemaking (ANPR) and other Agency guidance, 
in making completion determinations (see 61 FR 19432).

What Procedures Should an Agency Follow to Recognize Completion of 
Corrective Action?

    The regulations do not have explicit procedures for recognizing 
completion of corrective action, so the regulators have considerable 
flexibility in developing procedures for making completion 
determinations. The regulatory agency implementing the corrective 
action program in that State (i.e., the authorized State program or, in

[[Page 50197]]

unauthorized States, EPA) should ensure that a completion determination 
has been made through appropriate procedures. Providing meaningful 
opportunities for public participation in the decisionmaking process 
should be a crucial component of a completion determination procedure. 
The Agency believes that the following generally are appropriate 
procedures for making completion determinations.\5\
---------------------------------------------------------------------------

    \5\ Of course, if a facility's permit provides otherwise, these 
procedures would not be appropriate at that facility.
---------------------------------------------------------------------------

    At permitted facilities, the agency (EPA or the authorized States) 
should modify the permit to reflect the agency's determination that 
corrective action is complete. The current regulations in 40 CFR 270.42 
provide procedural requirements for facility requested permit 
modifications. In most cases, completion of corrective action will be a 
Class 3 permit modification, and the agency should follow those 
procedures (or authorized State equivalent), including the procedures 
for public involvement. In cases where no other permit conditions 
remain, the permit could be modified not only to reflect the completion 
determination, but also to change the expiration date of the permit to 
allow earlier permit expiration (see 40 CFR 270.42 (Appendix I(A)(6)).
    At non-permitted facilities where facility-wide corrective action 
is complete, and all other RCRA obligations at the facility have been 
satisfied, EPA or the authorized State may acknowledge completion of 
corrective action by terminating interim status through final 
administrative disposition of the facility's permit application (see 40 
CFR 270.73(a)). To do so, the permitting authority at the facility (EPA 
or the authorized State or both, depending on the authorization status 
of the State) should process a final decision following the procedures 
for permit denial in 40 CFR part 124, or authorized equivalent.\6\
---------------------------------------------------------------------------

    \6\ Under EPA permit denial procedures in 40 CFR part 124, EPA 
must issue, based on the administrative record, a notice of intent 
to deny the facility permit (see 40 CFR 124.6(b) and 124.9). The 
notice must be publicly distributed, accompanied by a statement of 
basis or fact sheet, and there must be an opportunity for public 
comment, including an opportunity for a public hearing, on EPA's 
proposed permit denial (see 40 CFR 124.7, 124.8, 124.10, 124.11, and 
124.12). In making a final permit determination, EPA must respond to 
any public comments (see 40 CFR 124.17). Under 40 CFR 124.19, final 
decisions are subject to appeal.
---------------------------------------------------------------------------

    EPA recognizes that referring to this decision as a ``permit 
denial'' can be confusing to the public and problematic to the facility 
when the facility is in compliance, is not seeking a permit, and does 
not have an active permit ``application.'' Therefore, regulatory 
agencies may choose to use alternate terminology (e.g., a ``no permit 
necessary determination'') to refer to this decision, though it is 
issued through the permit denial process or authorized equivalent. 
Regardless of the terminology used, the basis for the decision should 
be stated clearly, generally that: (1) There are no ongoing treatment, 
storage, or disposal activities that require a permit; (2) all closure 
and post-closure requirements applicable at the regulated units have 
been fulfilled; and (3) all corrective action obligations have been 
met.
    EPA and the authorized States may develop procedures for 
recognizing completion of corrective action at non-permitted facilities 
other than the permit decision process described above. For example, an 
agency may have procedures for issuing a notice informing the facility 
and the public that the facility has met its corrective action 
obligations, rather than issuing a final permit decision. EPA believes 
the alternative procedures should provide procedural protections 
equivalent to, although not necessarily identical to, those required by 
EPA's 40 CFR part 124 requirements (or the authorized State 
equivalent). Owners and operators should be aware that informal 
communications regarding the current status of cleanup activities at 
the site are not the same as completion determinations.
    Use of an alternative procedure might be especially useful in 
acknowledging completion of a corrective action remedy (or a 
determination that no corrective action is necessary) that covers only 
a portion of the facility. A partial completion determination might be 
used at a facility that has cleaned up a portion of a facility and 
where a partial completion determination will facilitate the productive 
reuse of that portion of the facility. An alternative approach could 
also acknowledge completion of corrective action at a facility with 
ongoing RCRA activities. For example, a facility may be conducting 
post-closure care at a regulated unit under an alternate non-permit 
authority, as allowed under the October 22, 1998 Post-Closure rule (see 
63 FR 56710), yet may have completed corrective action at its solid 
waste management units. In this case, interim status generally should 
not be terminated because all RCRA obligations have not been met, but 
it may be appropriate to issue a letter (as described above) 
recognizing completion of the corrective action obligations to bring 
finality to that process.
    By following appropriate procedures the authorized agency can make 
a sound, well informed completion determination. However, EPA notes 
that, whether at a permitted or non-permitted facility and regardless 
of the completion determination procedure used, if EPA or the 
authorized state discovers unreported or misrepresented releases 
subsequent to the completion determination, then EPA and the authorized 
State may conclude that additional cleanup is needed.\7\
---------------------------------------------------------------------------

    \7\ Of course, if EPA subsequently discovers a situation that 
may present an imminent and substantial endangerment to human health 
or the environment, EPA may elect to use its RCRA section 7003 
imminent and substantial endangerment authority, or other applicable 
authorities, to require additional work at the facility.
---------------------------------------------------------------------------

Where Can I Obtain Additional Information About Completion of 
Corrective Action?

    For further information on completion of corrective action, please 
contact Barbara Foster at 703-308-7057 or Peter Neves at 202-564-6072.
[FR Doc. 01-24603 Filed 10-1-01; 8:45 am]
BILLING CODE 6560-50-P