[Federal Register Volume 67, Number 39 (Wednesday, February 27, 2002)]
[Notices]
[Pages 9174-9178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4647]



[[Page 9173]]

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Part VIII





Environmental Protection Agency





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

  Federal Register / Vol. 67, No. 39 / Wednesday, February 27, 2002 / 
Notices  

[[Page 9174]]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7150-4]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The purpose of this notice is to provide the ``Completion of 
Corrective Action Activities at RCRA Facilities'' draft guidance 
memorandum for public comment. By inviting comment, the Agency hopes to 
involve the States, the regulated community, members of the public, and 
other stakeholders in the development of this guidance.

DATES: Comments may be submitted until April 29, 2002.

ADDRESSES: Commenters should send an original and two copies of their 
comments, referencing docket number F-2002-CC2A-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. Comments also may be submitted electronically through 
the internet to: [email protected]. Comments in electronic format 
must also reference the docket number F-2002-CC2A-FFFFF. Electronic 
comments should be submitted as an ASCII file and should avoid the use 
of special characters and any form of encryption.
    Confidential business information (CBI) should not be submitted 
electronically. An original and two copies of CBI must be submitted 
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 received by the Agency and supporting materials 
will be available for viewing in the RCRA Information Center (RIC), 
located at Crystal Gateway 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, 
you should make an appointment by calling 703-603-9230. A maximum of 
100 pages may be copied 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, which is 
published below, also will be available on the Internet at: http://www.epa.gov/correctiveaction. When issued in final form, this guidance 
will be issued as a memorandum from EPA headquarters to the Regional 
offices, and it is published below in that format for comment.
    EPA developed this memorandum to identify two situations during the 
RCRA corrective action process where the Agency believes it generally 
is appropriate to make completion determinations, and to provide 
guidance to EPA and State regulators in making those determinations. By 
recognizing completion of corrective action activities, the agency can 
inform the owner or operator that RCRA corrective action activities are 
complete at the facility. This information can, among other things, 
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.
    On October 2, 2001, EPA published a notice in the Federal Register 
requesting comment on a draft guidance document entitled ``Recognizing 
Completion of Corrective Action Activities at RCRA Facilities'' (see 66 
FR 50195). Comments received by the Agency on that draft guidance 
largely supported the content, but expressed concern that the Agency 
needed to expand the scope of the guidance, for example, to address 
when and under what circumstances such decisions should be made. The 
draft memorandum published below addresses these comments by combining 
the content of the October 2 draft guidance with new guidance 
concerning additional issues related to completion of corrective 
action. It is important to note, however, that this draft guidance does 
not address all issues suggested by commenters. For example, this 
guidance does not include detailed discussion of institutional controls 
or financial assurance. The Agency will continue to look at these and 
other issues surrounding completion of corrective action.
    In this Federal Register notice, the Agency again solicits comment 
on issues related to completion of corrective action. The Agency 
requests comment on the guidance in general and, in addition, requests 
comment on specific issues. The specific issues on which the Agency 
solicits comment are identified in footnotes throughout the guidance 
document, and are as follows:
    1. Terminology the Agency might use to describe the Completion of 
Corrective Action Determinations (see footnote 12 and related 
discussion).
    2. Mechanisms, other than permits and orders, that might be used to 
implement institutional controls following a Corrective Action Complete 
with Controls decision and under what circumstances those mechanisms 
would provide enough certainty with respect to continued compliance 
with required controls to justify elimination of the permit or order 
(see footnote 13 and related discussion).
    3. Situations where a permit or order could be eliminated because 
no additional action is required on the part of the regulatory agency 
or facility owner or operator to implement the remaining controls (see 
footnote 14 and related discussion).
    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. EPA will review and consider all comments.


[[Page 9175]]


    Dated: February 12, 2002.
Elizabeth Cotsworth,
Director, Office of Solid Waste.

Memorandum

Subject: Guidance on 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

Introduction

    This memorandum provides guidance to the Regions and authorized 
States on acknowledging completion of corrective action activities at 
RCRA treatment, storage, and disposal facilities. It describes two 
types of completion determinations--``Corrective Action Complete'' and 
``Corrective Action Complete with Controls.'' It provides guidance on 
when each type of completion determination should be made. It also 
discusses completion determinations for less than an entire facility. 
Finally, it provides guidance on the procedures EPA and the authorized 
States should follow when making completion determinations.\1\
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    \1\ This document provides guidance to EPA Regional and State 
corrective action authorities, as well as to facility owner or 
operators and the general public on how EPA intends to exercise its 
discretion in implementing the statutory and regulatory provisions 
that concern RCRA corrective action.
    The RCRA statutory provisions and EPA regulations described 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 substance of this guidance, appropriateness of the application 
of this guidance to a particular situation. EPA will, and States 
should, consider whether or not the recommendations or 
interpretations in the guidance are appropriate in that situation. 
EPA welcomes public comment on this document at any time, and will 
consider those comments in any future revision of this guidance 
document.
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Background

    EPA recognizes the importance of an official acknowledgment that 
corrective action activities have been completed. An official 
completion determination, made through appropriate procedures, benefits 
the owner or operator of a facility, the regulatory agency implementing 
the corrective action program, and the public. Official recognition 
that corrective action activities are complete can, among other things, 
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 activities are complete, it can modify its workload universes, 
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 activities, and to pursue available 
administrative and judicial challenges to the agency's decision.\2\
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    \2\ The Agency anticipates that at facilities where meaningful 
public involvement begins early in the corrective action process, 
challenges are less likely at the end of the process.
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    Under 40 CFR section 264.101, owners and operators seeking a permit 
for the treatment, storage or disposal of hazardous waste must conduct 
corrective action ``as necessary to protect human health and the 
environment.''\3\ The ultimate goal of corrective action is to satisfy 
the ``protection of human health and the environment'' standard. Thus, 
a determination by EPA that corrective action activities are complete 
is, in effect, an announcement that ``protection of human health and 
the environment'' has been achieved.\4\
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    \3\ Likewise, section 3008(h) establishes a standard of 
``protection of human health and the environment'' for corrective 
action imposed through orders. The policies established in this 
guidance are equally applicable to facilities that address facility-
wide corrective action through a section 3008(h) order, rather than 
a permit.
    \4\ Note that for facilities that continue to require a permit 
for the treatment, storage, or disposal of hazardous waste, a 
completion determination in no way affects the ongoing requirement 
to conduct corrective action for any future releases at the 
facility.
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    With experience, the Agency has discovered that the universe of 
facilities subject to corrective action requirements includes 
facilities that vary widely in complexity, extent of contamination, and 
level of risk presented at the site. To address this wide variation 
among corrective action facilities, the Agency has developed multiple 
approaches to achieving ``protection of human health and the 
environment.''
    When conducting corrective action, however, one of the key 
distinctions among remedies is the extent to which they rely upon 
controls (engineering and/or institutional \5\) to ensure that they 
remain protective. In some cases, the Agency selects a remedy that 
requires treatment and/or removal of waste and all contaminated media 
to levels that return the facility to unrestricted use.\6\ At these 
facilities, no additional oversight or activity is required following 
cleanup. When implementation of the remedy is completed successfully, 
protection of human health and the environment is achieved.
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    \5\ EPA has defined institutional controls as ``non-engineered 
instruments such as administrative and/or legal controls that 
minimize the potential for human exposure to contamination by 
limiting land or resource use.'' They are almost always used in 
conjunction with, or as a supplement to, other measures such as 
waste treatment or containment. There are four general categories of 
institutional controls: governmental controls; proprietary controls; 
enforcement tools; and informational devices. (See Fact Sheet 
entitled ``Institutional Controls: A Site Managers Guide to 
Identifying, Evaluating, and Selecting Institutional Controls at 
Superfund and RCRA Corrective Action Cleanups,'' September, 2000, 
OSWER Directive 9355.0-74FS-P).
    \6\ ``Unrestricted use'' refers to a walk-away situation, where 
no further activity or controls are necessary to protect human 
health and the environment at the site. Generally, a cleanup of soil 
to residential standards and of groundwater to drinking water 
standards would be an example of an unrestricted use scenario. By 
comparison, a cleanup of soil to industrial soil levels and/or 
groundwater to levels in excess of drinking water standards usually 
would not be an unrestricted use scenario. Under both scenarios, the 
Agency does not anticipate having to impose additional corrective 
action requirements because the remedy is protective of human health 
and the environment. The difference is that, under the second 
scenario, protection of human health and the environment is 
dependent on the maintenance of the remedy, including institutional 
controls.
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    In other cases, the Agency selects a remedy that allows 
contamination to remain on site, but imposes ongoing obligations 
concerning, for example, operation and maintenance of physical waste 
controls (e.g., a cap), and compliance with institutional controls 
(e.g., an industrial land use restriction). Thus, in these situations, 
the goal of ``protection of human health and the environment'' often is 
achieved by imposing a remedy that allows some contamination to remain 
in place, but requires controls (engineering and/or institutional) at 
the facility to limit exposure and subsequent release of contamination 
that remains following cleanup. At such facilities, successful 
implementation of the remedy alone is not enough to ensure protection 
of human health and the environment. Following remediation, maintenance 
of controls and continued corrective action related activities (such as 
monitoring) at such facilities are fundamental elements of meeting the 
standard of ``protection of human health and the environment.'' \7\
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    \7\ It should be noted that, at these facilities, cleanup to 
unrestricted use levels and a Corrective Action Complete 
determination (see discussion below) ultimately could be achieved if 
the owner or operator conducted additional cleanup and returned the 
facility to unrestricted use, or if the facility otherwise reached 
that state (e.g., through natural attenuation). At that time, the 
Agency could discontinue the requirement for controls.

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[[Page 9176]]

    An example of a situation where the Agency typically chooses a 
remedy that relies on controls is a facility for which the reasonably 
foreseeable use is industrial.\8\ At those facilities, the Agency may 
offer the facility the option to achieve protection of human health and 
the environment by selecting a remedy that allows higher levels of 
contamination to remain at the site, but requires the use of other 
controls to prevent unanticipated exposure. As described above, 
protection of human health and the environment at the facility 
typically is dependent on maintenance of controls.
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    \8\ See Land Use in the CERCLA Remedy Selection Process, May 25, 
1995, OSWER Directive 9355.7-04 for discussion of reasonably 
foreseeable land use.
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Types of Completion Determinations

    As was discussed above, a determination by EPA that corrective 
action activities are complete is a statement by the Agency that 
protection of human health and the environment has been achieved at a 
facility. As also was discussed above, the Agency takes different 
approaches to achieving protection of human health and the environment 
at facilities, depending on the site-specific circumstances. Completion 
determinations benefit the owner or operator, the community, and the 
regulatory agency. Therefore, EPA recommends that regulators 
implementing the corrective action program make completion 
determinations where corrective action activities have resulted in 
protection of human health and the environment at a facility. EPA plans 
to recognize two types of completion determinations, when properly made 
by the Agency or an authorized State, using appropriate procedures--
Corrective Action Complete, and Corrective Action Complete with 
Controls. These two types of completion determinations, and recommended 
procedures for making them, are described below.

1. Corrective Action Complete Determination

    EPA or the authorized State should make a determination that 
Corrective Action is Complete where the facility owner or operator has 
satisfied all obligations under sections 3004(u) and (v).\9\ This 
determination generally indicates that either there was no need for 
corrective action at the facility or, where corrective action was 
necessary, the remedy has been implemented successfully,\10\ and no 
further activity or controls are necessary to protect human health and 
the environment.
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    \9\ Or the owner or operator has completed facility-wide 
corrective action, as necessary to protect human health and the 
environment, imposed through a section 3008(h) order.
    \10\ See (61 FR 19432, at 19453, May 1, 1996), and (55 FR 30798, 
at 30837, July 27, 1990) for guidance regarding completion of 
remedy.
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    In a situation where EPA or the authorized State makes a 
determination that Corrective Action is Complete, no additional 
activity is required on the part of the regulatory agency or the owner 
or operator to maintain protection of human health and the environment. 
No controls are necessary at the facility to maintain protection of 
human health and the environment. Thus, the corrective action 
requirements can be eliminated. The facility should be eligible for 
release from financial assurance, as no funds should be needed in the 
future for corrective action-related activities. In addition, when 
there no longer are RCRA-regulated activities at the facility, the 
regulatory agency should have no concerns associated with transfer of 
the property, nor any reason to want to be informed of, or take an 
action regarding, that transfer.\11\
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    \11\ In September, 2001, EPA issued a guidance entitled Handbook 
of Groundwater Protection and Cleanup Policies for RCRA Corrective 
Action (The Groundwater Handbook). Unlike this draft Completion 
Guidance, which discusses completion of corrective action for all 
media, the Groundwater Handbook discusses completion of corrective 
action for groundwater remedies. It recognizes three ``phases'' of 
completion for groundwater remedies: (1) Implementing the final 
remedy, (2) achieving final cleanup goals, and (3) fulfilling all 
cleanup obligations associated with the contaminated groundwater, 
including long-term monitoring.
    This draft Completion Guidance is not intended to modify the 
Agency's guidance in the Groundwater Handbook on completion for 
groundwater remedies--rather, it goes beyond the scope of that 
guidance in that it addresses additional subjects and adds detail. 
Under this draft Completion Guidance, a Corrective Action Complete 
determination would be appropriate when: (1) the third phase of 
completion of the groundwater remedy has been achieved (as described 
in the Groundwater Handbook), and no controls are necessary to 
protect human health and the environment, and (2) the land has been 
returned to unrestricted use. A description of achieving final 
cleanup goals can be found in the September 2001 Groundwater 
Handbook (See id., Section 15).
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2. Corrective Action Complete with Controls Determination \12\
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    \12\ EPA seeks to use terminology that is precise, clear in 
meaning and, to the extent possible, consistent with Superfund. EPA 
welcomes commenters' suggestions on terminology that may be more 
accurate and/or less cumbersome than ``Corrective Action Complete 
with Controls'' to describe this determination.
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    EPA or the authorized State should make a Corrective Action 
Complete with Controls determination at a facility where: (1) A full 
set of corrective measures has been defined; (2) the facility has 
completed construction and installation of all required remedial 
actions; (3) site-specific media cleanup objectives have been met, 
which reflect current and reasonably expected future land use and 
maximum beneficial groundwater use, and (4) all that remains is 
performance of required operation and maintenance and monitoring 
actions, and/or compliance with and implementation of any institutional 
controls. A Corrective Action Complete with Controls determination 
provides the owner or operator with recognition that protection of 
human health has been achieved, and will continue as long as the 
required operation and maintenance actions are performed, and the 
institutional controls are maintained. A Corrective Action Complete 
with Controls determination provides an owner or operator with 
recognition of the significant progress made at the facility, and of 
the resulting reduction in risk.
    EPA or the authorized State generally should maintain a permit or 
order at the facility following a Corrective Action Complete with 
Controls determination. Continuation of the permit or order assures 
periodic review by the regulatory agency, compliance with any operation 
and maintenance requirements and institutional controls, and 
notification to the regulatory agency of transfers of the facility 
(which will allow opportunity for the agency to assure compliance with 
corrective action requirements will continue at the site).\13\ At 
facilities where long-term

[[Page 9177]]

institutional controls are necessary to ensure continued protection of 
human health and the environment, the regulator should explore options 
in addition to a permit or order to maintain the institutional 
controls. In addition, where necessary, financial assurance should be 
maintained at facilities following a Corrective Action Complete with 
Controls determination.
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    \13\ In the September 2000 Fact Sheet on Institutional Controls 
(id.), EPA identified an array of institutional controls that 
regulators can use to ensure continued protection of human health 
and the environment at RCRA corrective action facilities. These 
include governmental controls, proprietary controls, enforcement and 
permit tools with institutional control components, and 
informational devices.
    The September 2000 Fact Sheet discusses that, under RCRA, 
institutional controls typically are imposed through permit 
conditions, or through orders issued under section 3008(h). The Fact 
Sheet cautions the regulator that those mechanisms might have 
shortcomings, and suggests that the regulator conduct a thorough 
evaluation to ensure its ability to enforce the institutional 
control through the permit or order mechanism.
    The Agency solicits comment on mechanisms, other than permits 
and orders, in particular, those that are enforceable by EPA and the 
authorized States, that might be used to implement institutional 
controls following a Corrective Action Complete with Controls 
determination. The Agency further solicits comment on whether and 
under what circumstances such mechanisms (and any other mechanisms 
that might be used to implement other types of controls, such as 
operation and maintenance, in the absence of a permit or order) 
generally would provide enough certainty, with respect to continued 
compliance with required controls, to justify elimination of the 
permit or order.
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    The Agency believes that a situation can arise where the Agency can 
support elimination of the permit or order at a facility that has not 
been returned to unrestricted use. This situation would occur at a 
facility where, following completion of the remedy, controls 
(engineering and/or institutional) are necessary to assure continued 
protection of human health and the environment, but those controls do 
not require action on the part of the regulatory agency or the facility 
owner or operator. EPA continues to consider permit or order 
termination in such situations, on a case-by-case basis, as they 
arise.\14\
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    \14\ The Agency solicits comment on this issue, and particularly 
solicits examples of where there is no need for further action on 
the part of the Agency or owner/operator to assure that remaining 
corrective action requirements are satisfied.
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    It should be noted that, at some point, many facilities that obtain 
a Corrective Action Complete with Controls determination will be 
eligible to obtain a Corrective Action Complete determination. For 
example, the owner or operator at a facility cleaned up to industrial 
levels could conduct additional cleanup to unrestricted use levels 
(i.e., a point where monitoring and/or restrictions on use no longer 
are necessary). At that point it would be appropriate to eliminate the 
permit or order, and release the facility from financial assurance, so 
long as there are no additional RCRA activities at the facility subject 
to permit requirements.

Completion Determinations for a Portion of a Facility

    Regulators implementing the corrective action program often develop 
a number of distinct and separate remedies to address different areas 
of a facility or different media. This approach may be necessary 
because a facility may include areas and media that present a range of 
environmental risks. For example, an industrial facility may include 
areas that may never have been used for industrial purposes or have 
never been otherwise contaminated. Alternatively, a facility may have 
contaminated groundwater undergoing corrective action years after the 
source of contamination has been removed, and the soil cleaned up to 
unrestricted use levels.
    To ensure that a range of appropriate cleanup and land use options 
are available to the facility owner or operator, the Agency, where 
appropriate, on a facility-specific basis, will consider the option to 
subdivide a facility for purposes of corrective action. In these 
situations, the Agency will select a cleanup approach based on 
unrestricted use at parts of the facility, while cleanup at other parts 
of the facility will be based on the restricted use assumptions and 
will rely on institutional and/or engineering controls to maintain the 
protectiveness of the corrective action.
    Under this approach, a Corrective Action Complete determination 
could be made for the portion of a facility returned to unrestricted 
use. A Corrective Action Complete with Controls determination could be 
made for the remaining portion of the facility, and the controls 
generally implemented under a permit or order.
    In some situations, following a Corrective Action Complete 
determination for a portion of a facility, the owner will sell the 
portion that no longer is subject to corrective action. In these 
situations, the regulator making the determination should consider the 
long-term plan for the facility, and the effect of the Corrective 
Action Complete determination on financial assurance. The regulator 
should take steps to ensure adequate financial assurance is available 
to address corrective action obligations at the remainder of the 
facility.

Procedures for Acknowledging Completion Determinations

    EPA will recognize completion determinations made by the 
appropriate authority (EPA or the authorized State implementing the 
corrective action program), and made through proper procedures. By 
following appropriate procedures, the authorized agency can make a 
sound, well informed completion determination. The proper procedures 
for acknowledging a completion determination will depend on the status 
of the facility (permitted or non-permitted), and on whether the 
determination applies to part of the facility or to the entire 
facility. The following section describes procedures that the Agency 
believes generally are appropriate for completion determinations.\15\
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    \15\ 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. And, 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.
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1. Corrective Action Complete Determinations for Entire Facility

    The regulations in 40 CFR that govern the RCRA program do not 
provide explicit procedures for recognizing completion of corrective 
action activities, so 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 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 of Corrective Action determinations.\16\
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    \16\ Of course, if a facility's permit provides otherwise, these 
procedures would not be appropriate at that facility.
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    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 
section 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.\17\ In cases where no other permit 
conditions remain, the permit could be modified not only to reflect the

[[Page 9178]]

completion determination, but also to change the expiration date of the 
permit to allow earlier permit expiration (see 40 CFR section 270.42 
(Appendix I(A)(6)).
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    \17\ It should be noted that the Agency suggests Class 3 permit 
modification procedures as a general rule for completion 
determinations. However, Class 3 procedures might not be necessary 
or appropriate in all circumstances. For example, where the 
regulatory agency has made extensive efforts throughout the 
corrective action process to involve the public and has received 
little or no interest, and the environmental problems at the 
facility were limited, more tailored public participation may be 
appropriate.
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    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 section 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.\18\
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    \18\ 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 section 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 sections 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 section 124.17). Under 40 
CFR section 124.19, final decisions are subject to appeal.
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    EPA recognizes that referring to this decision as a ``permit 
denial'' may 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, including 
long-term monitoring, 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, a 
regulatory 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.\19\
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    \19\ An alternative approach should be used to acknowledge 
completion of corrective action determinations that apply to less 
than an entire facility (see discussion below). 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 
notice (as described above) recognizing completion of the corrective 
action obligations to bring finality to that process.
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2. Corrective Action Complete With Controls Determinations

    To recognize a determination that Corrective Action with Controls 
is complete, the procedures that regulatory agencies should follow 
should be determined by the regulatory status of the facility. For 
permitted facilities, the regulatory agency should modify the permit to 
reflect the decision, following the procedures in 40 CFR section 
270.42. For non-permitted facilities, the agency should follow 
alternate procedures (e.g., issue a notice with an opportunity to 
comment) that provide procedural protections equivalent to, although 
not necessarily identical to, those required by part 124 requirements 
(or the authorized State equivalent). Interim status should not be 
terminated at a RCRA facility where corrective action requirements 
remain. If corrective action was implemented through an order, the 
regulator should not eliminate the order until the facility meets all 
corrective action obligations required under the order.
    As was discussed above, at facilities (permitted or non-permitted) 
where a Corrective Action Complete with Controls determination is made, 
and long-term institutional controls are necessary to continued 
protection of human health and the environment, the regulator should 
explore options in addition to a permit or order to maintain the 
institutional control.
    It should be noted that a facility for which a Corrective Action 
Complete with Controls determination has been made might later be 
returned to unrestricted use (e.g., the owner or operator conducts 
additional cleanup). At that point, the regulatory agency should 
acknowledge the Corrective Action Complete determination through 
appropriate procedures.

3. Corrective Action Complete Determinations for Less Than the Entire 
Facility

    As was discussed above, EPA or the authorized State could make a 
Corrective Action Complete determination for a portion of a facility 
and a Corrective Action Complete with Controls determination at the 
remaining portion. Where the regulatory agency determines that a 
Corrective Action Complete decision is appropriate for a portion of the 
facility, it should acknowledge that decision using procedures that 
will not affect portions of the facility where corrective action 
requirements remain.
    For example, at a permitted facility, the agency should acknowledge 
Corrective Action Completion for a portion of the facility by modifying 
the permit following the procedures in 40 CFR 270.42. The agency should 
not eliminate the permit, however, because corrective action 
responsibilities (and possibly other RCRA responsibilities) remain at 
the facility.
    At non-permitted facilities, the Agency or authorized State should 
utilize alternate procedures as described above (e.g., issue a notice) 
to acknowledge the Corrective Action Completion determination for a 
portion of the facility. Those procedures should provide procedural 
protections equivalent to, although not necessarily identical to, those 
required by Part 124 requirements (or the authorized State equivalent). 
However, interim status generally should not be terminated at a 
facility where RCRA obligations remain. If the corrective action was 
implemented through an order, the regulator should not eliminate the 
order or terminate interim status until the facility satisfies all 
corrective action obligations.

FOR FURTHER INFORMATION CONTACT: For further information on completion 
of corrective action, please contact Barbara Foster at 703-308-7057 or 
Jim McCleary at 202-564-6289.

[FR Doc. 02-4647 Filed 2-26-02; 8:45 am]
BILLING CODE 6560-50-P