[Federal Register Volume 68, Number 37 (Tuesday, February 25, 2003)]
[Notices]
[Pages 8757-8764]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4380]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7454-7]


Final Guidance on Completion of Corrective Action Activities at 
RCRA Facilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The purpose of this notice is to provide the newly issued 
``Guidance on Completion of Corrective Action Activities at RCRA 
Facilities'' memorandum to regulators and to the regulated community. 
The memorandum provides the EPA Regions, the States, Tribes, the 
regulated community, members of the public, and other stakeholders with 
guidance on significant issues related to completion of corrective 
action activities at RCRA facilities. It provides guidance on when each 
type of completion determination is appropriate. It also discusses 
completion determinations for less than an entire facility. Finally, it 
provides guidance on procedures for EPA and the authorized States when 
making completion determinations.

DATES: This guidance was issued February 13, 2003.

ADDRESSES: For more detailed information on specific aspects of the 
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]), or 
Peter Neves, Office of Site Remediation Enforcement 2273A, U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue NW., 
Washington, DC 20460 (202-564-6072) ([email protected]).

SUPPLEMENTARY INFORMATION: EPA has established an official public 
docket for this action under Docket ID No. RCRA-2001-0004. The official 
public docket is the collection of materials that is available for 
public viewing at the OSWER Docket in the EPA Docket Center, (EPA/DC) 
EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The 
EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the Public Reading Room is (202) 566-1744, and the telephone 
number for the Docket is (202) 566-0270.
    You may access this Federal Register document electronically 
through the EPA Internet under the Federal Register listings at http://www.epa.gov/fedrgstr/. An electronic version of the public docket is 
available through EPA's electronic public docket and comment system, 
EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to 
view public comments, access the index listing of the contents of the 
official public docket, and to access those documents in the public 
docket that are available electronically. Although not all docket 
materials may be available electronically, you may still access any of 
the publicly available docket materials through the docket facility 
identified above. Once in the system, select ``search,'' then key in 
the appropriate docket identification number.
    The guidance document, which is published below, was issued as a 
memorandum from EPA headquarters to the Regional offices. If you would 
like to receive a hard copy, please call the RCRA Call Center 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. Additional 
information about RCRA corrective action is available on the Internet 
at: http://www.epa.gov/correctiveaction.

Background

    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 decisions that corrective action is 
complete should be made.
    On February 27, 2002, the Agency published a second draft guidance 
in the Federal Register (see 67 FR 9174), which included most elements 
of the first draft, but was expanded to discuss two types of corrective 
action completion determinations. The Agency again solicited comment on 
the guidance.
    Generally, commenters on the February 27 draft guidance supported 
the Agency's effort (and some supported all or part of the Agency's 
approach) to develop guidance related to completion of corrective 
action. However, some commenters raised concerns about aspects of the 
guidance, with many commenters offering suggestions for revising the 
guidance. The Agency modified the draft guidance in response to 
comments received, and the resulting final ``Guidance on Completion of 
Corrective Action Activities at RCRA Facilities'' memorandum is 
published below in this Federal Register notice.

Discussion of Public Comment

Comments Related to the Definition of Completion

    In the February 27, 2002 Federal Register notice, the Agency 
described two types of completion of corrective action. For both types, 
all of the following have been satisfied: (1) A full set of corrective 
measures is defined; (2) the facility has completed construction and 
installation of all required remedial actions; (3) site-specific media 
cleanup objectives, which were selected based on current and reasonably 
expected future land use, and maximum beneficial groundwater use, have 
been met.
    A Corrective Action Complete without Controls \1\ means that these 
objectives have been met, and the areas subject to the determination do 
not require any additional action or measures to ensure the remedy 
remains protective of human health and the environment. For Corrective 
Action Complete with Controls, all that remains is performance of 
required operation and maintenance and monitoring actions, and/or 
compliance with and

[[Page 8758]]

maintenance of any institutional controls.
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    \1\ In the February 27, 2002 Federal Register notice, this form 
of completion was referred to as Corrective Action Complete. The 
Agency added ``without controls'' in this final guidance to more 
clearly reflect that this is a form of completion (see discussion of 
comments below).
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    The Agency received many comments on those two types of completion.
    While commenters generally agreed with the two types of completion, 
there was widespread concern among the commenters that they would not 
be useful for many facilities. Commenters believed that Corrective 
Action Complete (without controls), as described, may never be achieved 
by some facilities, and that Corrective Action Complete with Controls, 
because of the third criterion (that final remedy cleanup objectives 
have been met) would not be attainable by many facilities within a 
reasonable timeframe, particularly in the case of restoration of 
contaminated groundwater. Commenters expressed the need for a formal 
and public recognition of progress that could be achieved within a 
reasonable timeframe. Some requested that the Agency modify the 
definition of Corrective Action Complete with Controls to remove the 
criteria that cleanup objectives be met to provide a measure that can 
be achieved within a timeframe that is reasonable. Others suggested 
that the Agency establish a provisional type of corrective action 
complete designation.
    The Agency recognizes that in carrying out an extensive and complex 
corrective action a facility can achieve several significant 
milestones, and recently described in detail a strategy for RCRA 
corrective action that includes short-term protection goals, 
intermediate performance goals, and final cleanup goals (see Handbook 
of Groundwater Protection and Cleanup Policies for RCRA Corrective 
Action, September, 2001, Sections 1.2-1.3, (http://www.epa.gov/epaoswer/hazwaste/ca), and Environmental Indicator Guidance, February, 
1999, (http://www.epa.gov/epaoswer/hazwaste/ca/eis)).
    This final guidance was not designed to guide regulators in 
recognizing progress at facilities where short-term protection goals or 
intermediate performance goals have been achieved. Rather, it was 
designed to recommend steps that regulators might take where the site-
specific media cleanup objectives, identified based on the current and 
reasonably anticipated use of the site, have been met.
    The Agency continues to believe that it is important to distinguish 
between situations where significant progress has been made toward 
final cleanup, and situations where corrective action is actually 
complete. The Agency believes that a ``completion'' determination 
signals to all parties involved that corrective action activities no 
longer are necessary (though controls to ensure the remedy remains 
protective may be necessary), and thus are preferably reserved for 
situations where there is no further cleanup activity to conduct--
regardless of how long it might take to achieve site-specific media 
cleanup objectives. The Agency is concerned that making ``completion'' 
determinations at facilities that have not yet achieved final cleanup 
goals would jeopardize the integrity of that distinction, potentially 
be misleading, and minimize the accomplishment of facilities that truly 
have completed corrective action.
    At the same time, the Agency recognizes that the commenters raised 
a valid concern--that owners and operators often need a formal 
recognition of progress at a landmark that can be achieved within a 
reasonable timeframe. Rather than encourage regulators to recognize 
completion prematurely, however, the Agency would prefer to address 
commenters' concern by formally recognizing progress at an earlier step 
in the corrective action process--where remedial measures are in place 
and operating, but cleanup objectives have not yet been met--in 
addition to recognizing completion of corrective action. The Superfund 
program makes ``Construction Complete'' designations at this point in 
its cleanups; EPA believes it is appropriate to recognize the analogous 
stage in RCRA corrective action as well. At that point in the cleanup 
process, while remedial measures continue to be implemented, final 
remedial decisions have been made and, at some facilities, 
environmental and human health risks may have been controlled such that 
the facility is ready for reuse. In recognition of the valid concerns 
raised by commenters, the Agency plans to investigate, in another 
forum, how it might formally and publicly recognize an earlier 
milestone in the corrective action process, analogous to Superfund's 
``construction complete.'' \2\
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    \2\ One likely forum is the ``One Cleanup Program'' initiative 
currently under development by the Agency. As part of that 
initiative, the Agency is examining ways to promote consistency, 
where appropriate, among all of its cleanup programs.
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    Some commenters were concerned that, because the criteria discussed 
in the draft guidance for ``Corrective Action Complete with Controls'' 
determinations included achievement of site-specific media cleanup 
objectives, which were selected based on current and reasonably 
expected future land use and maximum beneficial groundwater use, the 
guidance would be interpreted to mean that groundwater would be 
restored to drinking water standards in all cases. The Agency disagrees 
with that interpretation of the draft guidance, and believes that 
interpretation is inconsistent with the September, 2001 Handbook of 
Groundwater Protection and Cleanup Policies for RCRA Corrective Action, 
which is the Agency's most current guidance on groundwater issues 
related to RCRA corrective action. However, the Agency removed 
references to ``maximum beneficial use of groundwater'' from this final 
guidance for two other reasons. First, the draft guidance did not 
discuss cleanup standards for all media--in fact, the discussion was 
limited to groundwater. The Agency did not intend this guidance to 
address the issue of cleanup standards for the various media addressed 
through corrective action, and saw no reason to single out groundwater 
for discussion. Second, the Agency was concerned that provisions of the 
Groundwater Handbook when discussed in this guidance might be 
interpreted differently than they would within the context of the 
handbook itself. The September, 2001 Groundwater Handbook represents 
current Agency guidance on groundwater issues for the corrective action 
program, and EPA does not intend for this final Completion Guidance to 
address, or modify its guidance on, groundwater issues. The Agency is 
exploring a cross-program ``Ground Water Working Group,'' \3\ as a 
forum to identify and discuss groundwater issues of importance to 
multiple EPA programs, and to develop options for addressing those 
issues.\4\
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    \3\ See memorandum dated September 18, 2002 from Michael B. Cook 
to EPA Addressees entitled ``Cross-Program Ground Water Working 
Group.''
    \4\ It should be noted that the Agency also removed language 
regarding land use from the description of corrective action 
complete with controls. Again, EPA simply removed the language 
because the Agency is not discussing media cleanup standards in this 
guidance. For a discussion of reasonably foreseeable land use, see 
Reuse Assessments: A Tool to Implement the Superfund Land Use 
Directive, June 4, 2001, OSWER Directive 9355.7-06p.
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    Finally, some commenters were concerned that Corrective Action 
Complete with Controls would be considered a stepping stone toward 
Corrective Action Complete without Controls, rather than a form of 
completion in and of itself. Commenters requested that the Agency 
clarify that Corrective Action Complete with Controls is a form of 
completion. The Agency agrees with commenters that Corrective Action 
Complete with Controls is a form of completion, and

[[Page 8759]]

not a stepping stone toward Corrective Action Complete without 
Controls. For example, EPA recognizes that a final remedy that involves 
the use of institutional controls to maintain protection of human 
health and the environment is, nonetheless, a final remedy. EPA 
believes that owners and operators should be able to implement a final 
remedy, including one that involves institutional controls, with 
assurance that the Agency generally will not require additional 
corrective action at a later date so long as the controls, which help 
assure protection of human health and the environment, are effective.
    It should be noted, however, that in the case of a Corrective 
Action Complete with Controls determination, protection of human health 
and the environment is dependent upon the maintenance of the controls. 
Should the controls fail, a risk to human health and/or the environment 
might require additional action. That action might include different or 
additional controls, or it might involve additional cleanup. This does 
not mean that the Agency intends to revisit Corrective Action Complete 
with Controls determinations for the purpose of achieving Corrective 
Action Complete without Controls determinations. Rather, the Agency 
expects final remedies to be effective not just at the moment that the 
completion determination is made, but in the long-term as well.
    In addition, the Agency anticipates that there may be circumstances 
where an owner or operator of a facility that has received a Corrective 
Action Complete with Controls determination may choose in the future to 
conduct additional cleanup and obtain a Corrective Action Complete 
without Controls determination. For example, if a remedy included a 
restriction that the property be used only for industrial purposes, and 
the owner or operator were to decide to convert the property to 
residential use, additional cleanup would likely be necessary. Or, an 
owner or operator might choose to conduct additional cleanup and return 
the property to unrestricted use in order to end the responsibility for 
maintaining controls at the facility. However, under these examples, 
the decision to conduct additional corrective action would be that of 
the owner or operator.
    In response to commenters' concerns described above, the Agency 
made two modifications to the guidance. In the February 27, 2002 
Federal Register notice, the two types of completion were designated 
``Corrective Action Complete'' and ``Corrective Action Complete with 
Controls.'' The Agency modified the terms used to refer to the two 
types of completion by adding ``without Controls'' to ``Corrective 
Action Complete.'' The Agency believes that the resulting two 
designations--Corrective Action Complete without Controls and 
Corrective Action Complete with Controls--more clearly reflect that 
both are forms of completion. The Agency also added language to the 
guidance to clarify that Corrective Action Complete with Controls is, 
in and of itself, a form of completion, and not a stepping stone toward 
Corrective Action Complete without Controls.
    One additional modification to the definition of Corrective Action 
Complete with Controls should be noted. In the February 27, 2002 
Federal Register notice, the fourth factor for a Corrective Action 
Complete with Controls determination stated ``all that remains is * * * 
compliance with and implementation of any institutional controls.'' In 
this final guidance, the Agency changed ``implementation'' to 
``maintenance'' in this phrase. The Agency made this change to avoid an 
interpretation that ``implementation'' includes actions related to 
getting institutional controls in place, such as selection or securing 
institutional controls. ``Maintenance,'' more clearly conveys that the 
phrase ``Corrective Action Complete with Controls'' means that the 
appropriate controls are in place.

Comments Related to Procedures for Completion Determinations

    The draft guidance published in both the October 2, 2001 and the 
February 27, 2002 Federal Register notices suggested procedures for 
making completion determinations at permitted and non-permitted 
facilities. Generally commenters agreed with those procedures, and they 
are included in this guidance. However, commenters expressed concerns 
about language in the guidance related to permit modifications. The 
draft guidance suggested that at permitted facilities, Class 3 permit 
modification procedures generally would be appropriate for modifying a 
permit to recognize a completion determination. Commenters on the 
October 2, 2001 Federal Register notice suggested that, in many cases, 
a Class 1 procedure would be appropriate. The Agency added language (in 
a footnote) to the draft guidance in the February 27, 2002 notice to 
recognize that, in some cases, Class 3 procedures might not be 
necessary (see 67 FR 9174 at 9177). However, commenters on the February 
27, 2002 notice repeated the same concerns that the guidance suggested 
that Class 3 procedures were appropriate for recognizing completion and 
that those procedures would be unduly burdensome.
    The Agency believes that when it recognizes completion of 
corrective action at a facility, it is taking a step that is 
significant not only to the facility, but to the local community as 
well. Thus, the Agency believes it is important that the community have 
an opportunity to be involved in the Agency's decision. The Agency 
agreed with commenters that there may be circumstances where Class 3 
procedures might be burdensome and reap little benefit, and recognized 
those situations in the February 27, 2002 draft completion guidance. 
However, the Agency continues to believe that Class 3 procedures will 
be appropriate procedures for recognizing completion determinations at 
most facilities.
    To address commenters concerns, the Agency has emphasized in this 
guidance that Class 3 procedures might not be appropriate in all 
situations by strengthening that discussion and moving it to the text 
of the guidance from the footnote.

Completion Determinations for Portions of a Facility

    In the February 27, 2002 draft guidance, the Agency discussed 
making completion determinations for a portion of a facility. There was 
widespread support among commenters for recognizing completion 
determinations for a portion of a facility, and this final guidance 
retains that discussion. At the same time, the Agency recognizes that 
the discussion in this guidance addresses only a few of the issues 
related to parceling of RCRA facilities. The Agency agrees with the 
commenter who accurately pointed out that by supporting completion 
determinations for portions of a facility under the circumstances 
described in this guidance, the Agency has taken the first step toward 
addressing related issues.

Methods To Implement Institutional Controls

    The February 27, 2002 draft guidance discussed and requested 
comment on the issue of implementation of institutional controls at 
facilities that receive Corrective Action Complete with Controls 
determinations. The draft guidance suggested that, in most cases, a 
permit or order should be maintained following a Corrective Action 
Complete with Controls determination, but noted that regulators might 
find alternative methods for ensuring continued effectiveness of the 
institutional controls at a facility.

[[Page 8760]]

    The Agency received many comments related to implementation of 
institutional controls. Commenters were not in agreement on the issue 
of whether permits and/or orders should be maintained at facilities 
where Corrective Action Complete with Controls determinations are made, 
or, more broadly, on more effective methods for implementing 
institutional controls.
    After reviewing comments, the Agency generally believes that the 
approach it took in the draft guidance is appropriate, although the 
Agency is also interested in exploring and evaluating alternative 
methods for the continued effectiveness of institutional controls at a 
facility. The Agency recognizes that effective implementation of 
institutional controls is vital to continued protection of human health 
and the environment following a Corrective Action Complete with 
Controls determination at RCRA facilities (and at facilities where 
cleanup is conducted under other programs, such as Superfund) where the 
remedy depends upon institutional controls, and continues to explore 
the complex issues related to institutional controls. However, the 
Agency did not attempt to address those complex issues in this 
guidance.
    The Agency continues to focus attention on the evolving and complex 
issues associated with institutional controls. In the near future EPA 
will finalize a cross-program guidance entitled, ``Institutional 
Controls: A Guide to Implementing, Monitoring, and Enforcing 
Institutional Controls at Superfund and RCRA Corrective Action 
Cleanups'' that will serve as a companion to guidance issued in 2000 
entitled ``Institutional Controls: A Site Manager's Guide to 
Identifying, Evaluating, and Selecting Institutional Controls at 
Superfund and RCRA Corrective Action Cleanups,'' September 2000, OSWER 
Directive 9355.0-74FS-P. Additionally, the Agency is currently at work 
developing a national institutional control tracking system; supporting 
the development of a model state institutional control law; and 
evaluating the need for guidance on estimating institutional control 
costs, institutional control implementation plans, and ensuring 
compliance with institutional controls.

Comments Not Addressed in This Federal Register Notice

    The final guidance published in this Federal Register notice 
describes two types of completion of corrective action, and suggests 
processes for recognizing completion. The comments discussed above were 
directly related to the issues discussed in the guidance. The Agency 
recognizes that completion of corrective action raises many issues for 
regulators and for owners and operators, including issues related to 
transfer of RCRA facilities (or portions of facilities), sometimes 
referred to as ``parceling,'' financial assurance, and institutional 
controls. In addition, completion of corrective action at some 
facilities, such as Federal Facilities, may present unique issues. EPA 
received comments on these related issues as part of the comment it 
received on the October 2, 2001 and February 27, 2002 draft guidances. 
The Agency reviewed all of those comments, but those that were not 
directly related to issues discussed in the draft guidance documents 
are not addressed in this notice.
    EPA believes that, because of the multitude and complexity of the 
issues related to completion of corrective action, the best approach to 
these issues is to make continuous incremental progress in addressing 
them. Using this approach, the Agency has limited the scope of the 
discussion in this final guidance, but hopes that it has opened 
dialogue on, and will establish a foundation for, some of the broader 
issues related to completion of corrective action, to be addressed at a 
later time. The Agency encourages commenters to continue to provide 
input on these important issues as they are addressed.

    Dated: February 13, 2003.
Robert Springer,
Director, Office of Solid Waste.
    Dated: February 12, 2003.
Susan E. Bromm,
Director, Office of Site Remediation Enforcement.

Memorandum

    Subject: Guidance on Completion of Corrective Action Activities at 
RCRA Facilities.
    From: Robert Springer, Director, Office of Solid Waste; Susan E. 
Bromm, Director, Office of Site Remediation Enforcement.
    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 
without Controls'' and ``Corrective Action Complete with Controls.'' It 
provides guidance on when each type of completion determination is 
appropriate. It also discusses completion determinations for less than 
an entire facility. Finally, it provides guidance on procedures for EPA 
and the authorized States when making completion determinations.
    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, and the appropriateness of the application 
of this guidance to a particular situation. EPA will consider whether 
or not the recommendations or interpretations in the guidance are 
appropriate in that situation. The Agency welcomes public comment on 
this document at any time, and will consider those comments in any 
future revision of this guidance document.

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, such 
as ``brownfields,'' to productive use. Further, once the regulatory 
agency implementing corrective action makes a determination that 
corrective action activities are complete, it can focus agency 
resources on other facilities. Finally, if completion determinations

[[Page 8761]]

are made through a process that provides adequate public involvement, 
the process of making a formal completion determination will assure the 
public an opportunity to review and comment on the cleanup activities, 
and to pursue available administrative and/or judicial challenges to 
the agency's decision.\5\
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    \5\ 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.'' \6\ The ultimate goal of corrective action is to satisfy 
the ``protection of human health and the environment'' standard. Thus, 
a determination by EPA (or a State authorized by EPA to implement the 
Corrective Action Program) that corrective action activities are 
complete is, in effect, an announcement that the ``protection of human 
health and the environment'' standard has been achieved.\7\
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    \6\ Likewise, section 3008(h) establishes a standard of 
``protection of human health and the environment'' for corrective 
action imposed through orders. This guidance is equally applicable 
at facilities where EPA addresses facility-wide corrective action 
through an enforcement authority, rather than a permit.
    \7\ 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, and the Agency recommends that any completion 
determinations at such facilities be structured to make this clear.
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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 facility. 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) \8\ 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 allow the facility to be used in an unrestricted 
manner.\9\ 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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    \8\ 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: Government controls; proprietary controls; 
enforcement tools; and information 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).
    \9\ ``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 facility. 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 
containment or cleanup of groundwater to levels in excess of 
drinking water standards usually would not be an unrestricted use 
scenario. Under both scenarios, the Agency does not generally 
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 engineered 
controls (e.g., a landfill cap), and compliance with institutional 
controls (e.g., a restriction that land be used for industrial purposes 
only). Thus, in these situations, the goal of ``protection of human 
health and the environment'' often is achieved through use of a remedy 
(e.g., containment) that allows some contamination to remain in place, 
but requires controls (engineering and/or institutional) at the 
facility to prevent or to limit the risk of exposure through release of 
contamination that remains following cleanup. Following remedy 
implementation, 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.'' \10\
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    \10\ It should be noted that, at these facilities, cleanup to 
unrestricted use levels and a Corrective Action Complete without 
Controls determinations (see discussion below in section 2) 
ultimately could be achieved under a variety of scenarios--for 
example, the plan for land use at a facility might change; the owner 
or operator might decide to return the site to unrestricted use, or 
the facility might otherwise reach that state (e.g., through natural 
attenuation). At that time, the Agency could discontinue the 
requirement for controls.
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    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.\11\ At those facilities, the Agency may 
offer the facility the option to achieve long-term protection of human 
health and the environment by selecting a remedy that allows higher 
levels of contamination to remain at the facility, but requires the use 
of controls to limit the risk of unacceptable exposure. This remedy is 
considered the final remedy; however, protection of human health and 
the environment at the facility typically is dependent on maintenance 
of controls.
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    \11\ See Reuse Assessments: A Tool to Implement the Superfund 
Land Use Directive, June 4, 2001, OSWER Directive 9355.7-06p, for a 
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 was also 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 assured long-
term protection of human health and the environment at a facility. EPA 
anticipates two types of completion determinations--Corrective Action 
Complete without Controls, 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 Without Controls Determination
    EPA believes that it is appropriate for it, or for an authorized 
State, to make a determination that Corrective Action is Complete 
without Controls where the facility owner or operator has satisfied all 
obligations under sections 3004(u) and (v).\12\ The Agency recommends 
this terminology be used to indicate that either there was no need for 
corrective action at the facility or, where corrective action was 
necessary, the remedy has

[[Page 8762]]

been implemented successfully,\13\ and no further activity or controls 
are necessary to protect human health and the environment.
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    \12\ 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.
    \13\ See (61 FR 19432, at 19432, at 19453, May 1, 19960, and (55 
FR 30798, at 30837, July 27, 1990) for guidance regrading selection, 
implementation, and completion of remedy.
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    Under the approach described in this guidance, a determination that 
Corrective Action is Complete without Controls means that no additional 
remedial activity would be 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. It is likely that the 
facility will be eligible for release from financial assurance for 
corrective action, 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 
will likely 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.
2. Corrective Action Complete With Controls Determination
    EPA generally believes it is appropriate to 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; and 
(4) all that remains is performance of required operation and 
maintenance and monitoring actions, and/or compliance with and 
maintenance of any institutional controls. A Corrective Action Complete 
with Controls determination provides the owner or operator with 
recognition that protection of human health and the environment has 
been achieved, and will continue as long as the necessary operation and 
maintenance actions are performed, and any institutional controls are 
maintained and complied with.
    It is important to ensure that an enforceable mechanism is in place 
so that there is compliance with and maintenance of the controls. 
Regions and States have often ensured that controls are maintained 
through a RCRA permit or order at the facility in that 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 allows an opportunity for the agency 
to assure that compliance with corrective action requirements will 
continue).\14\ Permits and orders will continue to be used as 
enforceable mechanisms to assure compliance. However, the Agency 
believes that other enforceable mechanisms also may be appropriate for 
implementing institutional controls. For example, several States have 
passed legislation that creates mechanisms to enforce institutional 
controls, a development that EPA encourages. For facilities where long-
term institutional controls are necessary to ensure continued 
protection of human health and the environment, the regulator may 
explore a variety of options including permits, orders, and other 
enforceable mechanisms to maintain the institutional controls. In 
addition, where necessary, financial assurance for corrective action 
should be maintained at facilities following a Corrective Action 
Complete with Controls determination.
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    \14\ The September, 2000 Fact Sheet on institutional controls 
discusses that, under RCRA, institutional controls typically are 
imposed through permit conditions, or through orders issued under 
section 3008(h) or 7003. 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 over the entire duration that the institutional control 
must remain in place. (See Institutional Controls: A Site Manager's 
Guide to Identifying, Evaluating and Selecting Institutional 
Controls at Superfund and RCRA Corrective Action Cleanups, EPA 540-
F-00-005, OSWER 9355.0-74FS-P, September 2000.))
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    It should be noted that, at some point, many facilities that obtain 
a Corrective Action Complete with Controls determination might later 
obtain a Corrective Action Complete without Controls determination if 
circumstances were to change. For example, the owner or operator at a 
facility cleaned up to industrial levels could decide to conduct 
additional cleanup because there was a desire to change land use to 
unrestricted use levels, and/or because they no longer wished to 
maintain controls. Should a facility later seek a Corrective Action 
Complete without Controls determination, the regulatory agency should 
process that determination through appropriate procedures, such as 
those described below. If the Corrective Action Complete without 
Controls determination were made, it would be appropriate to remove 
whatever enforceable mechanism is in place, and release the facility 
from financial assurance for corrective action, 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, EPA believes that the 
agency should consider, when appropriate, subdividing a particular 
facility for purposes of corrective action. In these situations, the 
Agency might, for example, select a cleanup approach based on 
unrestricted use at parts of the facility, while cleanup at other parts 
of the facility may be based on the restricted use assumptions and rely 
on institutional and/or engineering controls to maintain the 
protectiveness of the corrective action. Alternatively, the Agency may 
select a cleanup approach based on unrestricted use for the entire 
facility, with some parcels requiring a longer time period to achieve 
the same cleanup goals.
    Under this approach, a Corrective Action Complete without Controls 
determination could be made for a portion of a facility when it is 
returned to unrestricted use. A Corrective Action Complete without 
Controls or a Corrective Action Complete with Controls determination, 
as appropriate, could be made for remaining portions of the facility 
when the cleanup goals are achieved, and any necessary controls then 
would be implemented under an appropriate mechanism.
    In some situations, following a Corrective Action Complete without 
Controls 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

[[Page 8763]]

Action Complete without Controls determination and sale on financial 
assurance for corrective action. 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 Processing Completion Determinations

    Completion determinations should be made by the appropriate 
authority (EPA or the authorized State implementing the corrective 
action program), and made through appropriate procedures. By following 
appropriate procedures, the authorized agency can make a sound, well 
informed completion determination. The appropriate procedures for 
processing a completion determination will depend on various factors, 
including 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 suggests 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, 
this would likely be a basis to 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 Without Controls 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. It is important to provide meaningful 
opportunities for public participation as part 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 or order provides 
otherwise, these procedures would not be appropriate at that 
facility.
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    EPA believes that permit modification is an appropriate procedure 
to reflect the agency's determination that corrective action is 
complete. 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)).
    The current regulations in 40 CFR 270.42 provide procedural 
requirements for facility requested permit modifications. In most 
cases, completion of corrective action is likely to be a Class 3 permit 
modification, and the regulatory agency should follow those procedures 
(or authorized State equivalent), including the procedures for public 
involvement. It should be noted that the Agency suggests Class 3 permit 
modification procedures are generally appropriate for completion 
determinations. However, Class 3 procedures may not be appropriate in 
all circumstances, and the regulatory agency should evaluate each 
situation to determine whether a less extensive procedure would be 
adequate. 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.
    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.\17\
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    \17\ 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 section 124.17). Under 40 CFR 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'' or ``cleanup obligations satisfied'') 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 implementation of long-term 
monitoring procedures, have been met.
    EPA or 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. Although 
these procedures would not have the effect of terminating interim 
status, unlike the Part 124 permit denial procedures, EPA believes they 
can be appropriate for making a completion determination. In general, 
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 facility are not the same as the completion determinations 
described in this guidance.\18\
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    \18\ An alternative approach would likely be appropriate to 
process Completion of Corrective Action determinations that apply to 
less than an entire facility (see discussion below). An alternative 
approach could also be used to process a completion of corrective 
action determination 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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[[Page 8764]]

2. Corrective Action Complete With Controls Determinations
    To process a Corrective Action Complete with Controls 
determination, regulatory agencies should consider the regulatory 
status of the facility, among other factors, in determining what 
procedures are appropriate. For permitted facilities, following the 
permit modification procedures in 40 CFR 270.42 would be appropriate. 
For non-permitted facilities, the regulatory agency should generally 
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). However, following procedures 
other than the Part 124 procedures does not terminate interim status 
even though they may result in a Complete with Controls determination. 
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 may 
explore a variety of options including permits, orders, and other 
enforceable mechanisms to maintain the institutional control where 
appropriate.
3. Corrective Action Complete Without Controls Determinations for Less 
Than the Entire Facility
    As was discussed above, EPA or the authorized State could make a 
Corrective Action Complete without Controls determination for a portion 
of a facility where corrective action obligations remain at the 
remaining portion. Where the regulatory agency determines that a 
Corrective Action Complete without Controls decision is appropriate for 
a portion of the facility, it should process 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 might process a 
Corrective Action Completion determination 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, if 
corrective action responsibilities (and possibly other RCRA 
responsibilities) remain at the facility.
    At non-permitted facilities, the Agency or authorized State might 
utilize alternate procedures as described above (e.g., issue a notice) 
to process the Corrective Action Completion determination for a portion 
of the facility. Those procedures should generally provide procedural 
protections equivalent to, although not necessarily identical to, those 
required by Part 124 requirements (or the authorized State equivalent). 
However, interim status is not terminated by such procedures and 
generally should not be terminated at a facility where RCRA obligations 
remain. If the corrective action was implemented through an order, it 
is important to maintain the order until the facility satisfies all 
corrective action obligations and ensures that institutional controls 
will be maintained.

FOR FURTHER INFORMATION CONTACT: For further information on completion 
of corrective action, please contact Barbara Foster at 703-308-7057 or 
Peter Neves at 202-564-6072. For information regarding the application 
of this guidance to a particular facility, please contact your local 
Regional or State office.

[FR Doc. 03-4380 Filed 2-24-03; 8:45 am]
BILLING CODE 6560-50-P