Wednesday
May 1, 1996
Part V
Environmental
Protection Agency
40 CFR Ch. I
Corrective Action for Releases From
Solid Waste Management Units at
Hazardous Waste Management Facilities;
Proposed Rule
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Federal Register / Vol. 61, No. 85 / Wednesday, May 1, 1996 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Ch. I
[FRL-5460-2]
RIN 2050-AB80
Corrective Action for Releases From
Solid Waste Management Units at
Hazardous Waste Management
Facilities
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Advance notice of proposed
rulemaking.
SUMMARY: Today's action has three
purposes. First, it introduces EPA's
strategy for promulgating regulations
governing corrective action for releases
from solid waste management units at
hazardous waste management facilities
under the Resource Conservation and
Recovery Act (RCRA) and requests
information to assist in identification
and development of potential
improvements to the protectiveness,
responsiveness, speed or efficiency of
corrective actions. The Agency
originally proposed corrective action
regulations on July 27,1990. Second, to
provide context for potential revisions
to the corrective action program, today's
Notice includes a general status report
on the corrective action program and
how it has evolved since the 1990
proposal, and provides guidance on a
number of topics not fully addressed in
1990. Third, it emphasizes areas of
flexibility within the current program
and describes program improvements
currently underway or under
consideration.
DATES: To ensure consideration,
information and data must be received
on or before July 30,1996.
EPA will hold a public hearing on this
Notice on June 3,1996.
ADDRESSES: Written comments
responding to today's Notice should be
addressed to: Docket Clerk, U.S.
Environmental Protection Agency,
RCRA Docket (OS-305), 401 M Street
SW, Washington, D.C. 20460. Comments
sent by special delivery, such as
overnight express services, should be
addressed to: RCRA Docket Information
Center (RIG), Crystal Gateway One, 1235
Jefferson Davis Highway, First Floor,
Arlington, VA 22202. Electronic
comments should be addressed to:
RCRA-Docket@epamail.epa.gov.
The June 3,1996 public hearing will
be held at the Key Bridge Marriott,
located at 1401 Lee Highway, Arlington,
VA 22209. Advance requests to speak at
the hearing should be submitted, in
writing, to: Hugh Davis (5303W) U. S.
Environmental Protection Agency, 401
M Street, SW, Washington, DC 20460.
For important additional instructions
on submitting comments or making a
request to speak at the public hearing,
see Supplementary Information.
FOR FURTHER INFORMATION CONTACT: For
general information, contact the RCRA
Hotline at (800) 424-9346 (toll-free) or
(800) 553-7672 (hearing impaired), or
(703) 412-9810 (locally), Monday-
Friday, 8:00-5:00 eastern standard time.
For technical information, contact Hugh
Davis, Office of Solid Waste (5303W),
U.S. Environmental Protection Agency,
401 M Street SW, Washington, D.C.
20460. Phone, (703) 308-8633. E-mail
address, davis.hugh@epamail.epa.gov.
SUPPLEMENTARY INFORMATION:
Instructions for Submitting Comments
and Requests To Speak at the Public
Hearing
Commenters should place the docket
number (F-96-CA2P-FFFFF) on all
comments and submit an original and
two copies. Comments also may be
submitted electronically, through the
Internet. Comments submitted
electronically should be in ASCI to
avoid the use of special characters and
encryptions.
The official record for this action will
be kept in paper form. EPA will transfer
all comments received electronically
into paper form and place them, with
comments submitted directly in writing,
in the official record. EPA responses to
comments will be recorded in a notice
in the Federal Register or in an official
record for this action. EPA will not
immediately reply to electronic
comments other than to seek
clarification of comments that may be
garbled in transmission or during
conversion to paper form.
Confidential business information
(CBI) may be included in comments,
however, to ensure continued
confidentiality, it must be submitted
under separate cover. If including CBI,
commenters should submit an original
and two copies to: U.S. Environmental
Protection Agency, RCRA CBI
Document Control Officer, OSW
(5303W), 401 M Street SW, Washington,
D.C. 20460. Place the docket number (F-
96-CA2P-FFFFF) on the CBI and
include a reference to any non-CBI
comments submitted. Do not submit CBI
electronically.
Docket materials may be reviewed by
appointment by calling (703) 603—9230.
The docket is located on the first floor
of the Crystal Gateway building at 1235
Jefferson Davis Highway in Arlington,
Virginia and is open from 9:00 a.m. to
4:00 p.m., Monday through Friday,
excluding Federal holidays. A
maximum of 100 pages of material may
be copied at no cost from any one
regulatory docket. Additional copies are
$0.15 per page. The main switchboard
number for the hotel is (703) 524-6400.
Individuals interested in directions to
the June 3,1996 public hearing at the
Key Bridge Marriott or room
reservations should contact the hotel
directly at (703) 524-6400. Registration
for the hearing will begin at the hotel at
8:30 am. The hearing will begin at 9:00
am. and end at 5:00 pm unless
concluded earlier. Oral and written
statements may be submitted at the
public hearing. Time for the public
hearing is limited; oral presentations
will be made in the order that requests
are received and will be limited to 15
minutes, unless additional time is
available. Advance requests to speak at
the public hearing should be clearly
marked as a request to speak at the
public hearing and include the
scheduled date of the hearing (June 3,
1996) and the docket number for this
action (F-96-CA2P-FFFFF). Requests to
speak at the public hearing may also be
made on the day of the hearing, by
registering at the door; request to speak
by individuals who choose to register at
the door on the day of the hearing will
be granted in the order received, as time
permits. All individuals who choose to
speak at the public hearing are
requested to provide a paper copy of
their testimony for the record.
Internet Access
This notice is available on the
Internet. To access today's Notice
electronically:
Gopher: gopher.epa.gov
WWW: http://www.epa.gov
Dial-up: (919) 558-0353
From the main EPA Gopher menu,
select: EPA Offices and Regions/Office
of Solid Waste and Emergency Response
(OSWER)/Office of Solid Waste (RCRA)/
Hazardous Waste/Corrective Action.
FTP: ftp.epa.gov
Login: anonymous
Password: your Internet address
Files are located in /pub/gopher/
oswrcra
Glossary of Commonly Used Acronyms
ASTM—American Society for Testing and
Materials
ASTSWMO—Association of State and
Territorial Solid Waste Management
Officials
CAMU—Corrective Action Management Unit
CAP—Corrective Action Plan
CERCLA—Comprehensive Environmental
Response, Compensation and Liability Act
CMI—Corrective Measures Implementation
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19433
CMS—Corrective Measures Study
CSGWPP—Comprehensive State
Groundwater Protection Program
DQO—Data Quality Objective
EAB—Environmental Appeals Board
FACA—Financial Assurance for Corrective
Action
HSWA—Hazardous and Solid Waste
Amendments
LDR—RCRA Land Disposal Restrictions
MCL—Maximum Contaminant Limit
MTR—RCRA Minimum Technology
Requirements
NCAPS—National Corrective Action
Prioritlzation System
NPL—National Priorities List
NCP—National Oil and Hazardous
Substances Pollution Contingency Plan
OSW—EPA Office of Solid Waste
OSWER—EPA Office of Solid Waste and
Emergency Response
POC—Point of Compliance
RBCA—Risk Based Corrective Action (refers
to ASTM standard E1739-95)
RCRA—Resource Conservation and Recovery
Act
RFA—RCRA Facility Assessment
RFI—RCRA Facility Investigation
RU—Regulated Unit
SWMU—Solid Waste Management Unit
SSG—EPA Soil Screening Guidance
TI—Technical Impracticability
TSDF—Treatment, Storage, or Disposal
Facility
UST—Underground Storage Tank
Outline
I. Background
A. Statutory and Regulatory Requirements
B. Summary of Today's Notice
II. Subpart S Initiative
A. Objectives
B. Outreach
1. States
2. Environmental and Public Interest
Community
3. Regulated Community
4. Other Federal Agencies
Q On-Going Role of the States
D. Strategy and Schedule
E. Major Corrective Action Program
Developments Since 1990
1. Stabilization Initiative
2. Environmental Indicators for Corrective
Action
3. Corrective Action Plan
4. CAMU Rule
5. Other Developments
F. Relationship to Other Agency Initiatives
and Rulemakings
1. HWIR Media
2. Post-Closure Rule
a. The Post-Closure Permit Requirement
b. Applicability of 40 CFR Parts 264 and
265 to Regulated Units Requiring
Corrective Action
a State Corrective Action Enforcement
Authority
3. RCRA Statutory Reform
4. Improvements to the Procedures for
Authorization of State Hazardous Waste
Program Revisions
5. Superfund Reauthorization
6. Superfund Administrative
Improvements and Reforms
a. Guidance on Land Use
b. Soil Screening Guidance
c. Presumptive Remedies
d. Community Based Remedy Selection
7. Brownfields Initiative
8. Environmental Justice
9. Permits Improvement Team
HI. Corrective Action Implementation
A. Program Management Philosophy
B. Scope and Definitions
1. Concept of Parity
2. Voluntary Cleanup
3. Definitions
a. Facility
b. Release
c. Solid Waste Management Unit
d. Hazardous Waste and Hazardous
Constituent
C. Corrective Action Process
1. Initial Site Assessment
a. Facility Owners/Operators May Gather
RFA Information
b. Release Assessment
c. National Corrective Action Prioritization
System
2. Site Characterization
a. Conceptual Site Models
b. Innovative Site Characterization
Technologies
c. Tailored Data Quality Objectives
d. Use of Existing Information to
Streamline the Remedial Investigation
e. Role of Action Levels
f. Integration With the Evaluation of
Remedial Alternatives
3. Interim Actions
4. Evaluation of Remedial Alternatives
a. Integration With Site Characterization
b. Formal Evaluation Not Always
Necessary
c. Facility Owner/Operator Should
Recommend a Preferred Remedy
5. Remedy Selection
a. Balancing Treatment and Exposure
Control
b. Remedy Selection Criteria
c. Media Cleanup Standards
d. Points of Compliance
e. Compliance Time Frame
f. Site-Specific Risk Assessments
g. Ecological Risk
h. Determinations of Technical
Impracticability
i. Natural Attenuation
j. Land Use
6. Remedy Implementation
a. Performance Based Corrective Measures
Implementation
b. Performance Monitoring
c. Completion of Corrective Measures
D. Incorporation of Corrective Action in
RCRA Permits
E. Corrective Action Orders
F. Public Involvement and Environmental
Justice
G. Financial Assurance
IV. Corrective Action Program Priorities
V. Request for Comment and Data
A. General
B. Resolution of the 1990 Proposal.
C. Focusing the Corrective Action Program
on Results
1. Performance Standards
2. Less Focus on Solid Waste Management
Units
D. Using Non-RCRA Authorities for
Corrective Action
1. State Cleanup Programs
2. Enhanced Flexibility for States with
EPA-Endorsed CSGWPPs
3. Voluntary Corrective Action
4. Corrective Action at Interim Status
Facilities
5. Independent or Self-Implementing
Corrective Action
6. Consistency With the CERCLA Program
7. ASTM RBCA Standard
8. Definition of Facility for Corrective
Action
E. Balance Between Site-Specific
Flexibility and National Consistency
1. Land Use
2. Points of Compliance
3. Standardized Lists of Action Levels and
Media Cleanup Levels
4. Area Wide Contamination Issues
5. Ecological Risk
6. Risk Assessment Methods
F. Public Participation and Environmental
Justice
G. When Permits Can Be Terminated
H. Effect of Property Transfer on Corrective
Action Requirements
I. Financial Assurance for Corrective
Action
J. State Authorization
I. Background
A. Statutory and Regulatory
Requirements
In the 1984 Hazardous and Solid
Waste Amendments (HSWA) to the
Resource Conservation and Recovery
Act (RCRA), Congress directed EPA to
require corrective action for all releases
of hazardous waste and hazardous
constituents from solid waste
management units at facilities seeking
RCRA permits (i.e., hazardous waste
Treatment, Storage or Disposal Facilities
or TSDFs) regardless of the time at
which waste was placed in the units.
When corrective action cannot be
completed prior to permit issuance, the
statute directs EPA to specify corrective
action schedules of compliance and
financial assurance in all permits issued
under RCRA section 3005. In addition,
EPA is directed to require that
corrective action be taken beyond
facility boundaries unless facility
owners/operators demonstrate to the
Agency's satisfaction that, despite their
best efforts, they were unable to obtain
the necessary permission to undertake
off-site corrective action. (See, RCRA
section 3004 (u) and (v), 42 U.S.C. 6924
(u) and (v).) At the same time, Congress
enacted the RCRA permit omnibus
provision directing that, "each permit
issued under [RCRA "Section 3005]
contain such terms and conditions as
the Administrator determines necessary
to protect human health and the
environment." (See^RCRA sections
3005(C)(3), 42 U.S.C. 6925(c)(3).) EPA is
authorized to require corrective action
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19434 Federal Register / Vol. 61, No. 85 / Wednesday, May 1, 1996 / Proposed Rules
at interim status facilities under RCRA
section 3008(h), 42 U.S.C. 6928(h).
At the time the new corrective action
provisions were enacted, corrective
action for releases to groundwater from
RCRA regulated units was already
required under 40 CFR part 264, subpart
F. RCRA regulated units are defined in
40 CFR 264.90 as surface
impoundments, waste piles, land
treatment units, and landfills that
received hazardous waste after July 26,
1982; they are a subset of the universe
of solid waste management units. The
1984 HSWA amendments extended
corrective action authority at TSDFs to
all waste management at units that
received solid or hazardous waste at any
time. In the legislative history of RCRA
section 3004(u), Congress noted that one
purpose of the new corrective action
requirements was to ensure that RCRA
facilities did not become Superfund
cleanup sites. The legislative history
records that, "Unless all hazardous
constituents released from solid waste
management units at permitted facilities
are addressed and cleaned up the
Committee is deeply concerned that
many more sites will be added to the
future burdens of the Superfund
program with little prospect for control
or cleanup. The responsibility to control
such releases lies with the facility
owner and operator and should not be
shifted to the Superfund program,
particularly when a final permit has
been requested by the facility." (See,
H.R. Rep. No. 198, 98th Cong., 1st Sess.,
part 1, 61 (1983).)
In July 1985, EPA codified corrective
action requirements at 40 CFR
264.90(a)(2); 264.101; 270.60(b) and
270.60(c). (See, 50 FR 28702, July 15,
1985.) These regulations reiterate the
statutory language of RCRA section
3004(u) by requiring facility owners/
operators seeking RCRA permits to
institute corrective action, as necessary
to protect human health and the
environment, for all releases of
hazardous waste and constituents from
solid waste management units at the
facility. When corrective action cannot
be completed prior to permitting, EPA
requires that all permits contain
corrective action requirements,
schedules of compliance, and financial
assurance. In 40 CFR 270.60(b) and
270,60(c), EPA clarified that corrective
action is also required for some facilities
with RCRA permits-by-rule, including
hazardous waste management facilities
with permits issued under the
Underground Injection Control program
and the National Pollution Discharge
Elimination. System (NPDES) permitting
program.
In December 1987 (52 FR 45788,
December 1,1987), EPA promulgated
additional corrective action regulations
to codify the statutory language of RCRA
§ 3004(v), requiring corrective action for
releases beyond the facility boundary.
EPA also established permit application
requirements necessary to support
corrective action implementation, and
modified the corrective action
requirements for underground injection
wells with RCRA permits-by-rule.
On July 27,1990 (55 FR 30798), EPA
proposed detailed regulations to govern
the RCRA corrective action program.
The 1990 proposal was designed to be
the analogue to the CERCLA program's
National Oil and Hazardous Substances
Pollution Contingency Plan (NCP). As
such, it addressed both technical (e.g.,
cleanup levels, remedy selection, points
of compliance) and procedural (e.g.,
definitions, permitting, reporting)
elements of the corrective action
program. In the 1990 proposal, EPA
emphasized the need for site-specific
flexibility in cleanup programs. The
Agency stated, "Because of the wide
variety of sites likely to be subject to
corrective action, EPA believes that a
flexible approach, based on site-specific
analyses is necessary. No two cleanups
will follow exactly tie same course, and
therefore, the program has to allow
significant latitude to the decision
maker in structuring the process,
selecting the remedy, and setting
cleanup standards appropriate to the
specifics of the situation." (See, 55 FR
30802.)
The 1990 proposal was the subject of
significant public comment. Although
EPA has finalized only a few sections of
the 1990 proposal,1 the bulk of the
proposal is routinely used as guidance
during corrective actions.
B. Summary of Today's Notice
Today's Notice introduces EPA's
strategy for promulgation of corrective
action regulations and requests public
input on a variety of issues and
concepts associated with corrective
action. To provide context for potential
revisions to the corrective action
program and because the Agency's
philosophy and strategies have evolved
in many respects since 1990, today's
Notice also includes a general status
report on the corrective action program
and how it has grown since the 1990
proposal, and provides guidance on a
number of topics not fully addressed in
1990. Finally, today's Notice
1 See 58 FR 8658, February 16,1993, "Corrective
Action Management Units" where EPA finalized
regulations addressing the creation, management,
and closure of units created specifically for
purposes of managing remediation wastes.
emphasizes the flexibility inherent in
the existing corrective action program,
discusses steps EPA is already taking to
improve corrective actions and requests
comments on new approaches to
expedite and simplify facility cleanups.
In Section I of today's Notice, EPA
identifies the statutory and regulatory
basis of the corrective action program.
Section II of today's Notice introduces
EPA's Subpart S Initiative. Through the
Subpart S Initiative the Agency intends
to identify and implement
improvements to the protectiveness,
responsiveness, speed and efficiency of
the corrective action program. Section II
includes discussions of the Subpart S
Initiative objectives, outreach, and
schedule. It also includes discussions of
major corrective action program
guidance and policy milestones that
have occurred since 1990, and the
relationship of the Subpart S Initiative
to other agency ralemakings and
initiatives.
In Section III, EPA discusses
corrective action implementation,
describes how certain program elements
have evolved since 1990, and provides
guidance on a number of topics that
were not fully addressed in the 1990
proposal. This section emphasizes areas
of flexibility in the current corrective
action program and highlights
innovative approaches some program
implementors and facility owners/
operators have used to expedite
cleanups. Readers are urged to pay
particular attention to Section III in
order to gain an overall understanding
of the Agency's latest thinking on
corrective action implementation.
Section IV of today's Notice builds on
the detailed discussions in Section III by
providing concise statements of EPA's
corrective action implementation goals
and strategies.
In Section V of today's Notice, EPA
requests comments and data on a variety
of issues to assist it in identifying and
developing improvements to the
corrective action program. In some
cases, the Agency raises new concepts
that would likely warrant re-proposing
regulations or developing new guidance
documents; in other cases, concepts
were addressed in the 1990 proposal but
are included in Section V because the
Agency is requesting additional
comment and data at this time.
II. Subpart S Initiative
EPA and the states have made
considerable progress in implementing
the corrective action requirements;
however, despite this progress, the
overall implementation of the corrective
action program has been subject to
considerable criticism. States,
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19435
environmental groups and the regulated
community have raised many concerns,
including: slow progress in achieving
cleanup or other environmental results;
an emphasis on process and reports over
actual work in the field; unrealistic,
impractical or overly conservative
cleanup goals; excessive and detailed
oversight; reluctance to authorize or
'recognize the work of state cleanup
programs; and, lack of meaningful
public participation. EPA believes that
many of these concerns have been
overstated; however, at the same time, it
recognizes that improvements to the
corrective action program are necessary.
EPA and the states now have more than
ten years experience in implementing
the corrective action requirements. EPA
believes the time has come to reevaluate
the RCRA corrective action program to
identify and implement improvements
to the program's speed, efficiency,
protectiveness and responsiveness, and
to focus the program more clearly on
environmental results. The reevaluation
effort is known as the Subpart S
Initiative.
As part of the Subpart S Initiative,
EPA has been working with states and
other stakeholders to develop a
comprehensive strategy to identify and
develop improvements to the corrective
action program and promulgate final,
corrective action regulations. The
Subpart S Initiative involves assessment
of the current corrective action program,
outreach to stakeholders, finalization of
some elements of the 1990 proposal,
development of new proposals and
guidance documents, and today's
Notice.
EPA is committed to substantive
consistency among its cleanup
programs. For that reason, the Subpart
S Initiative is being coordinated closely
with the Superfund program, including
the Superfund administrative
improvements efforts and Superfund
reauthorization activities.
A. Objectives
Taking into' consideration corrective
action implementation experience,
recent feedback from stakeholders, and
the comments received on the 1990
proposal, EPA has developed five
objectives for the Subpart S Initiative:
(l) Create a consistent, holistic
approach to cleanups at RCRA facilities;
(2) Establish protective, practical
cleanup expectations;
(3) Shift more of the responsibilities
for achieving cleanup goals to the
regulated community;
(4) Focus on opportunities to
streamline and reduce costs; and,
(5) Enhance opportunities for timely,
meaningful public participation.
Implementation of these five
objectives will involve new approaches
to corrective action and may necessitate
significant revisions to the existing
corrective action program. In adopting
any new approach, EPA will not
sacrifice protection of human health and
the environment or the meaningful
involvement of the public and affected
communities. ,
B. Outreach
EPA believes the experiences of
states, the regulated community, other
Federal agencies, and environmental
and public interest groups will be
tremendously valuable as it works to
identify and develop improvements to
the corrective action program. Today's
Notice reflects the involvement of
interested stakeholder groups, as
discussed below. EPA is committed to a
continuing and meaningful dialogue
with these groups as the Subpart S
Initiative develops. As the Subpart S
Initiative progress, EPA will continue to
.identify interested stakeholder groups
and invite their input and involvement.
1. States
In December and January 1995, EPA
met twice with interested state
representatives to solicit their early
input in the Subpart S Initiative. In
general, these state representatives
advised that the corrective action
program: Retain considerable flexibility;
emphasize results over process; be
generally consistent with the CERCLA
program; address consistency issues
within the RCRA program (e.g., between
cleanups at SWMUs and regulated
units); address risk assessment and risk
management, including ecological risk;
empower states and expedite state
authorization; and, encourage
stabilization without discouraging final
cleanups. State representatives also
strongly advised against finalizing
' corrective action regulations in pieces,
favoring the comprehensive approach
reflected in today's Notice. The ongoing
role of 'the states in the Subpart S
Initiative is discussed below.
2. Environmental arid Public Interest
Community
EPA wrote nine environmental and
public interest groups requesting their
early involvement in the Subpart S
Initiative; To date, EPA has met with
one environmental group, the
Environmental Defense Fund (EOF). The
Environmental Defense Fund expressed
support fcmchanges in the corrective
action program to improve the speed
and efficiency of cleanups and increase
opportunities for meaningful public
participation. Their suggestions include:
tailoring the level of public •
participation to the level of community
•interest; including opportunities for
public participation throughout the
cleanup process; using risk goals and
clearly defined cleanup standards to
make cleanups more efficient;
maintaining a throughout-the-plume/
unit boundary cleanup point of
compliance; and, using deed restrictions
at non-residential cleanups. While EDF
expressed general support for .
consistency in technical matters
between RCRA and CERCLA, they also
expressed the opinion that operating
hazardous waste management facilities,
such as those typically addressed by
RCRA corrective action, have an
ongoing responsibility to their
communities and should, perhaps, be
held to higher cleanup standards than
abandoned (i.e., Superfund) sites. EPA
welcomes the continued involvement of
EDF in the Subpart S Initiative and mil
continue to look for opportunities to
involve other environmental and public
interest groups.
3. Regulated Community
EPA met with and received written
materials from a variety of industry
groups which offered their suggestions
for improvements to the corrective
action program. In general, industry
groups expressed frustration with the
pace and cost of corrective actions and
what they perceive as overly stringent
cleanup criteria. Their suggestions
include increased reliance on
performance standards, more emphasis
on non-residential future land use
scenarios, and improved coordination
with other applicable cleanup
authorities (e.g., the Superfund program
and state cleanup programs). EPA
welcomes the continued involvement of
the regulated community in
development of the Subpart S Initiative.
4. Other Federal Agencies
During Spring and Summer 1995,
EPA held a series of meetings with other
Federal agencies, including, the
Department of Defense (DOD), the
Department of Energy (DOE), the
Department of Agriculture, the Council
on Environmental Quality (CEQ), and
the Office of Management and Budget
(OMB). Many of these agencies own or
operate facilities which are subject to
RCRA corrective action. During these
meetings, EPA and the other Federal
agencies discussed potential
improvements to the RCRA corrective
action and Superfund programs. EPA
will continue these discussions during
development of the Subpart S Initiative.
The Department of Defense and the
Department of Energy reviewed and ,
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19436 Federal Register / Vol. 61, No. 85 / Wednesday, May 1, 1996 / Proposed Rules
provided comments on a draft version of
today's Notice and EPA met with DOD
and DOE representatives to discuss their
comments and suggested changes.
C. On-Going Role of the States
The states are the primary
implementors of the corrective action
program. Because of this, EPA has
actively solicited state input and
participation in the Subpart S Initiative
and is developing the Initiative in full
partnership with the states. As of
today's Notice, thirteen states 2 have
agreed to participate in the Subpart S
Initiative as co-regulators. During the
co-regulation process, state
representatives participate actively in
development of policy and regulatory
options and analyses. As discussed
above, EPA has held two meetings with
state representatives to discuss
development of the Subpart S Initiative;
three additional meetings and a fifty-
state review of any regulatory proposals
are planned. In addition, representatives
of interested states participated actively
in development of today's Notice and
reviewed and provided comment on
numerous drafts.
D, Strategy and Schedule
The Subpart S Initiative will include
development of guidance and policy
documents and rulemaking. EPA
intends to publish rule language in fall
1997. In order to present the Agency's
visions for the corrective action program
and regulations in totality, the 1997
publication will promulgate elements of
the 1990 proposal that the Agency
believes do not need additional public
review and will re-propose other
program elements. Based in part on
comments received in response to
Section V.B of today's Notice, EPA will
determine which elements of the 1990
proposal will be finalized without
further comment and which elements
will be re-proposed.
Guidance and policy development
will play an important role in the
Subpart S Initiative. The balance
between guidance and policy
development and rulemaking will be
determined, in part, by comments
received on today's Notice. Section V.A
of this Notice requests specific
recommendations for additional policy
or guidance development.
E. Major Corrective Action Program
Developments Since 1990
The Subpart S Initiative builds on
several recent and important
2 These states are: Wisconsin, Texas, Georgia,
Idaho, Florida, Colorado, New York, California,
Utah, Oklahoma, North Carolina, Delaware, and
Missouri.
developments in the corrective action
program/Many of these program
developments are addressed in the EPA
guidance documents discussed below;
other program developments were
associated with promulgation of the.
Corrective Action Management Unit
(CAMU) regulations, also discussed
below. A complete list of corrective
action guidance documents is available
in the "RCRA Corrective Action Plan,"
EPA/520-R-94-004, OSWER Directive
9902.3-2A, May 1994, included in the
docket for today's Notice.
1. Stabilization Initiative
EPA's early implementation of the
corrective action program focused on
final, comprehensive cleanups at a
limited number of facilities. As EPA arid
states gained more experience, it
became clear that, at many sites, final
cleanups were difficult and time-
consuming to achieve and that an
emphasis on final remedies at a few
sites could divert limited resources from
addressing ongoing releases and
environmental threats at many other
sites. As a result, in 1991, the Agency
established the Stabilization Initiative as
one of the primary implementation
objectives for the corrective action
program. The goal of the Stabilization
Initiative is to increase the rate of
corrective actions by focusing on iiear-
term activities to control or abate threats
to human health and the environment
and prevent or minimize the further
spread of contamination. Through the
Stabilization Initiative, the Agency is
seeking to achieve an increased overall
level of environmental protection by
implementing a greater number of
actions across many facilities rather
than following the more traditional
process of pursuing final,
comprehensive remedies at a few
facilities.
Controlling exposures or the
migration of a release may stabilize a
facility, but does not necessarily mean
that a facility is completely cleaned up.
At some stabilized facilities,
contamination is still present and
additional investigations or remediation
may eventually be required; however, as
long as the stabilization measures are
maintained, stabilized facilities should
not present unacceptable near-term risks
to human health or the environment and
program implementors and facility
owners/operators have the opportunity
to shift their resources (either at the
stabilized facility or among facilities) to
additional health or environmental
concerns. Stabilization actions should
be a component of, or at least consistent
with, final remedies. More information
on the Stabilization Initiative is
available in the 1991 guidance
memorandum "Managing the Corrective
Action Program for Environmental
Results: The RCRA Facility Stabilization
Effort" and in Section III.C.3 of today's
Notice.
2. Environmental Indicators for
Corrective Action
Critics of the corrective action
program have often charged that EPA
focuses too much on administrative
processes rather than actual cleanups.
As an example of this problem, critics
cite Agency management systems which
often track the number of paperwork
deliverables (e.g., work plans approved)
rather than achievement of
environmental results. In response to
these concerns and the Government •
Performance and Results Act of 1993,
EPA is moving the corrective action
program away from more traditional
management systems and, consistent
with a broader Agency-wide effort, now
focuses management of the corrective
action program on environmental
indicators. Two specific environmental
indicators have been developed for the
corrective action program. These
indicators are: Human Exposures
Controlled Determination and
Groundwater Releases Controlled
Determination. The environmental
indicators are facility-wide measures.
Human Exposures Controlled is attained
when there are no unacceptable risks to
humans due to releases of contaminants
at or from the facility subject to RCRA
corrective action. Groundwater Releases
Controlled is attained when the
migration of groundwater contamination
at or from the facility across designated
boundaries "(these boundaries may be
facility boundaries or specified
boundaries within a facility) is
controlled.
The environmental indicators are not
tied to specific program activities or
paperwork deliverables. In the course of
implementing final remedies, the
environmental indicators will be
achieved; however, the implementation
of stabilization measures can also result
in achieving the environmental
indicators. EPA is striving to make the
corrective action program more
performance based. Because the
environmental indicators focus on
results, they can serve well as
performance measures for remedial
activities. Further guidance on the
environmental indicators is available in
the July 29,1994 memorandum "RCRIS
Corrective Action Environmental
Indicator Event Codes CA725 and
CA750," which has been placed in the
docket for today's Notice.
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EPA is committed to using the
corrective action environmental
indicators to increase the efficiency of
the corrective action program by
focusing on results. Although EPA has
developed only two environmental
indicators for corrective action to date,
additional indicators may be developed
to address factors such as ecological risk
or source control. EPA requests
comments on the development of
additional environmental indicators in
Section V.C.I of today's Notice.
3. Corrective Action Plan
Another concern in the corrective
action program has been consistency.
While no two cleanups will follow the
exact same course, EPA recognizes that
some level of consistency in cleanup
processes can help to ensure that all
cleanups will achieve the same overall
level of protection. The RCRA
Corrective Action Plan or CAP (OSWER
Directive 9902.3-2A, May 1994), .
provides guidance which program
implementors and facility owners/
operators can use to develop and direct
the specific corrective action activities
which might be necessary at any given .
facility. The CAP provides an overall
program implementation framework and
model scopes of work for site
characterizations, interim actions,
evaluation of remedial alternatives and
remedy implementation. Program
implementors and facility owners/
operators can use these model scopes of
work when developing site-specific
strategies, work plans, and schedules of
compliance.
The CAP is not meant to be a cleanup
prescription. The model scopes of work
in the CAP present a range of activities
which might be necessary at a corrective
action facility. Program implementors
and facility owners/operators should
choose carefully from this range when
developing facility specific work plans.
4.CAMURule
Program implementors and facility
owners/operators have long recognized
that certain RCRA Subtitle C hazardous
waste requirements can significantly
complicate or delay cleanups when
applied to remediation wastes. To
address this problem, EPA promulgated
regulations for corrective action
management units (58 FR 8658,
February 16,1993). The CAMU rule
provides relief from specific RCRA
standards that can preclude desirable
remediation options or unnecessarily
add to the cost of remedies (e.g., the
RCRA land disposal restrictions when
applied to remediation wast'e) by
creating a new type of RCRA unit. EPA
and authorized states may choose to
designate a CAMU for management of
remediation waste during RCRA
corrective actions and other cleanups.
When designating CAMUs, EPA and
authorized states have the flexibility to
establish site-specific design, operating,
closure and post-closure requirements
instead of using the existing RCRA
requirements for land-based units.
Remediation wastes (i.e., media and
debris which contain hazardous waste
or exhibit a hazardous waste
characteristic) may be consolidated into
a CAMU before or after treatment. In .
addition, remediation wastes may be
treated in a CAMU or moved (again,
before or after treatment) between
CAMUs at the same facility without
automatically triggering otherwise
applicable RCRA land disposal
restrictions or minimum technology
requirements.
The CAMU rule was challenged in
1993; however, the challenge has been
stayed pending publication of the final
Hazardous Waste Identification Rule for
Contaminated Media (HWIR-Media).
EPA expects that the HWIR-Media rule
will largely obviate the need for the
CAMU rule, and is planning to propose
withdrawal of the CAMU regulations as
part of 'the HWIR-Media proposal (for a
discussion of the HWIR-Media proposal,
see Section II.F.l of today's Notice). In
the meantime, CAMUs may be used to
support efficient and protective
cleanups.
5. Other Developments
In addition to the examples discussed
above, program implementors and
facility owners/operators are using the
existing flexibility in the corrective
action program to explore a range of
new approaches in an effort to improve
the corrective action process and
expedite cleanups at a facility-specific
level. These include: using performance
standards to set goals for site
investigations and cleanups;
encouraging innovative technical
approaches; facilitating voluntary or
accelerated cleanups, when a facility
owner/operator wants to move ahead of
a regulatory agency; the use of third-
party oversight; expanded public
participation, including use of citizen
advisory boards; innovative
coordination with or deferral to other
programs, including state cleanup
programs; and, many other efforts. In
accordance with EPA's emphasis on
consistency of results between the
RCRA and CERCLA programs, many of
these approaches are being developed in
cooperation with the Superfund
program or state remedial programs.
EPA encourages program
implementors and facility owners/
operators to continue to explore new
approaches to corrective action and to
share their successes and failures. Some
of the innovative approaches which
have proved most successful at
individual facilities are discussed later
in today's Notice; EPA is looking
forward to receiving information on
other new approaches in response to
today's Notice. One of the purposes of
today's Notice is to gather information
on successful facility-specific
approaches to corrective action so EPA
can build on implementation experience
as it identifies and develops
improvements to the national program
during the Subpart S Initiative.
F. Relationship to Other Agency
Initiatives and Rulemakings
EPA is involved in several
rulemakings and other activities which
will have particular impact on the
Subpart S Initiative. Coordination with
these other rulemakings and activities is
ongoing.
1. HWIR Media
The Hazardous Waste Identification
Rule for Contaminated Media (HWIR-
Media) is a regulatory reform proposal
that reexamines the application of many
of the RCRA hazardous waste treatment
and management standards to
contaminated environmental media
(e.g., soil and groundwater) managed
during Agency or authorized state
overseen cleanups. Under current
regulations, environmental media that
contain (or are contaminated by)
hazardous wastes must be managed as
hazardous waste (this is known as the
"contained-in policy"). In developing
the HWIR-Media proposal, EPA, in
partnership with the states, is
examining a number of reforms
designed to allow program
implementors to tailor treatment and
management requirements for
contaminated media to site- and media-
specific conditions. EPA is proposing
several types of reforms and seeking
comment on a number of alternatives.
The Agency may finalize any one or
combinations of these reforms or
alternatives.
The first major area of reform that
EPA is considering would revise the
Land Disposal Restrictions (LDRs)
Minimum Technological Requirements
(MTRs) and permitting requirements
that apply to contaminated media
currently subject to hazardous waste
management requirements, to make
them more appropriate for the types of
contaminated media and concerns
typically addressed at cleanup sites.
Currently, large volumes of
contaminated media are subject to
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hazardous waste requirements, notably
LDR, MTR and permitting, that were
originally designed for newly generated
or process wastes, where the concerns
are different from those at cleanup sites.
More broadly, EPA is also proposing
to exempt some contaminated media
from RCRA Subtitle C hazardous waste
management requirements. This reform
would allow authorized states or EPA to
determine contaminated media
management standards for those
exempted media on a site-specific basis.
EPA is considering two exemption
options. First, EPA is considering
exempting media by determining, often
based on management conditions, that
the media do not contain hazardous
wastes (this is commonly known as the
"contained-out" approach); second,
EPA is considering exempting media
only if certain conditions were met (this
is commonly known as the "conditional
exclusion" approach). Under the
options that would exempt only some
contaminated media from hazardous
waste management requirements, EPA is
proposing to use a set of constituent
concentrations known as a "Bright
Line" to divide the media that would
arid would not be eligible for
exemption. Media with concentrations
of constituents below Bright Line
concentrations would be eligible for
exemption; media with constituent
concentrations above the Bright Line
would not be eligible. Finally, in the
HWIR-Media proposal, EPA is
requesting comment on exempting all
cleanup wastes, including contaminated
media, sludges, debris, and other wastes
managed during the course of a cleanup,
based on a conditional exclusion. Under
this option, authorized states or EPA
would set all management and
treatment requirements for cleanup
wastes on a site-specific basis.
The HWIR-Media proposal in
particular will complement the Subpart
S Initiative by potentially providing
program implementors with the
flexibility to tailor requirements for
management of contaminated media to
the risks posed by any given medium
and the circumstances at any given
corrective action facility.
2. Post-Closure Rule
EPA has long recognized die need to
more effectively integrate corrective
action and closure activities. Toward
this end, the Agency proposed a rule
entitled "Standards Applicable to
Owners and Operators of Closed and
Closing Hazardous Waste Management
Facilities; Post-Closure Permit
Requirement; Closure Process; State
Corrective Action Enforcement
Authority" (59 FR 55778, November 8,
1994). In this notice, the Agency
proposed revisions to the current
requirements applicable to facilities
with closed and closing land disposal
units, and revisions to the requirements
for state audiorization for corrective
action. These provisions, described in
more detail below, were proposed as
part of the Agency's efforts to create a
consistent approach to cleanups at
RCRA facilities.
a. The Post-Closure Permit
Requirement. The current regulations at
40 CFRPart 270.1(c) require owners and
operators of surface impoundments,
landfills, land treatment units, and
waste pile units that received wastes
after July 26,1982, or that certified
closure after January 26,1983 to obtain
a post-closure permit for the facility,
unless they demonstrate closure by
removal at those units. For facilities that
did not receive an operating permit, and
closed under interim status standards,
this post-closure permit serves to
impose several critical statutory and
regulatory requirements, including the
requirements for corrective action.
The November 8,1994 proposal
would allow a regulatory agency (e.g.,
EPA or an authorized state) to address
these facilities using the best available
regulatory or enforcement authority,
instead of requiring that agencies issue
post-closure permits in all cases. While
the proposal would not otherwise
modify the applicable cleanup
requirements at these facilities, it would
remove the requirement that they be
imposed through the post-closure
permitting process. Under the proposal,
a regulatory agency could require post-
closure care (including corrective
action) at the facility under an
enforcement mechanism, a state cleanup
authority, or Federal Superfund
authority. This flexibility contributes to
die Agency's efforts in the Subpart S
Initiative.
b. Applicability of 40 CFR Parts 264
and 265 to Regulated Units Requiring
Corrective Action. Under the current
regulations, the requirements that apply
to closed and closing land disposal
units depend on their legal status.
Regulated units, defined in 40 CFR
264.90 as surface impoundments, waste
piles, land treatment units, or landfills
that received waste after July 26,1982,
are subject to the fairly specific closure,
post-closure, financial assurance,
groundwater monitoring and corrective
action requirements of 40 CFR Parts 264
and 265. Non-regulated solid waste
management units are not subject to 40
CFR Parts 264 and 265; consequently,
environmental risks at those units are
determined and addressed on a site-
specific basis through the corrective
action process.
Despite this regulatory distinction,
these units are often indistinguishable
in terms of environmental risk. EPA is
concerned that this dual regulatory
scheme can, in some cases, limit its
authority to determine the best remedy
at regulated units. In the November 8,
1994 proposal, the Agency expressed
this concern, and solicited comment on
whether the regulations should be
modified to give overseeing agencies the
discretion to remove or modify all or
part of the Part 264 and 265
requirements described above at a
facility that is undergoing cleanup using
the RCRA corrective action process.
c. State Corrective Action
Enforcement Authority. Under the
current Federal authorization process,
states are required to obtain
audiorization for implementing
provisions of HSWA, such as Section
3004(u), to address corrective action at
permitted facilities. However, states
have never been required to obtain
audiority to address corrective action at
interim status facilities. On November 8,
1994, EPA proposed that states be
required to upgrade their judicial or
administrative enforcement authority to
respond to releases of hazardous waste
or hazardous constituents at interim
status facilities as provided by Section
3008(h). This provision was designed to
provide consistent and complete
delegation of the corrective action
program to states.
EPA is completing its review of
comments on die proposed provisions
and plans to proceed with promulgation
of the final rule in the near future.
3. RCRA Statutory Reform
On March 16,1995 the President
committed to identify high cost, low
benefit provisions of the Resource
Conservation and Recovery Act (RCRA)
for legislative reform. After an extensive
stakeholder outreach process, the
Administration selected two issues. The
first issue for legislative reform, an
exemption for certain low risk waste's.
from costly regulation under RCRA's
land disposal restrictions program, was
signed into law—the Land Disposal
Flexibility Act—by the President on
March 26,1996.
The second topic identified for
legislative reform was die application of
RCRA hazardous waste management
requirements to cleanup wastes. The
Administration currently is discussing
widi stakeholders and Congress the
possible development of bipartisan
legislation to expedite die safe and cost-
effective management of cleanup wastes
diat are currently subject to RCRA
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19439
hazardous waste management
requirements. In addition to RCRA
cleanup sites, the type of reform beirig
discussed would benefit site cleanups
under Superfund, Brownfield and State
voluntary programs.
4. Improvements to the Procedures for
Authorization of State Hazardous Waste
Program Revisions
Under RCRA Section 3007, EPA is
charged with authorizing equivalent
state hazardous waste programs
including corrective action programs.
Authorized states administer and
enforce the RCRA program within the
state in lieu of the Federal program (see
40 CFR Part 271); authorized states have
primary enforcement responsibility,
although EPA retains enforcement
authority under RCRA sections 3008,
7003, and 3013.
Following their initial authorization,
states are required to periodically revise
their hazardous waste programs to
remain equivalent to the Federal
program. Since EPA is continually
revising the RCRA program in response
to statutory changes, court ordered
deadlines and evolving priorities, states
are continually updating their
authorized programs. Preparation,
review and approval of changes to
authorized state hazardous waste
programs represents a significant
workload for states and EPA. In
addition, states have often expressed the
concern that EPA review of changes to
authorized hazardous waste programs is
too detailed, resource intensive, and
time consuming. To increase the pace
and efficiency of authorization of state
program revisions and respond to state
concerns, EPA proposed changes to the
regulations for processing state program
revision applications in the Land
Disposal Restrictions Phase IV rule (60
FR 43654, August 22,1995). Additional
provisions to streamline authorization
of state program revisions are under
consideration for inclusion in the
HWIR-Media rule, currently under
development. Improvements proposed
in the LDR Phase IV rule and under
consideration for the HWIR-Media rule
include: creating a tiered approach to
tailor authorization to the complexity
and impact of the program revisions at
issue; increasing reliance on state
certifications; and placing more
emphasis on time-frames for processing
of authorization applications.
Improvements to the procedures for
state program revisions would apply to
all state program revisions, including
revisions made necessary by
promulgation of corrective action
regulations.
5. Superfund Reauthorization
As a general philosophy, EPA believes
that the RCRA and CERCLA remedial
programs should operate consistently
and result in similar environmental
solutions when faced with similar
circumstances. Currently, Congress is
considering legislation to reauthorize
CERCLA. If CERCLA is amended, EPA
believes that parallel changes in the
corrective action program should
generally be adopted. Changes to the
CERCLA program which might impact
the RCRA corrective action program
include new approaches to setting
cleanup standards and factoring risk
into remedial decision making.
6. Superfund Administrative
Improvements and Reforms
Independent of reauthorization of the
CERCLA statute, EPA's Superfund
program has undertaken a number of
administrative initiatives to streamline
the Superfund program and increase the
fairness, effectiveness, and efficiency of
CERCLA cleanups. Several of the
proposals developed as part of the
administrative reform and improvement
efforts also apply to RCRA cleanups, as
discussed below.
a. Guidance on Land Use. On May 25,
1995, EPA issued a Directive titled,
"Land Use in the CERCLA Remedy
Selection Process." The directive has
two primary objectives. First, to
promote early discussions between EPA
and local land use planning authorities,
local officials, and the public regarding
reasonably anticipated future land uses.
Second, to promote the use of the ,
information from those discussions to
formulate realistic assumptions
regarding future land use, and to clarify
how land use assumptions influence
risk assessment, development of
remedial alternatives, and remedy
selection.
The directive was developed
primarily to address land use
considerations under the CERCLA
program; however, the principle of early
alid complete involvement of .
stakeholder groups to develop realistic
land use assumptions is equally
applicable to the RCRA corrective action
program. EPA recognizes that RCRA
facilities are often industrial properties •
that are actively managed, .rather than
the abandoned sites typically addressed
under, CERCLA. Because of this
consideration, the directive stated that
non-residential use considerations
might be especially appropriate at many
RCRA corrective action facilities.
Consideration of non-residential land
use in RCRA corrective actions was -
addressed in the 1990 proposal and is
discussed further in Sections III.C.5.J
and V.E.I of today's Notice.
b. Soil Screening Guidance. In
December 1994, EPA issued a draft
"Superfund Soil Screening Guidance,"
(SSG) for public review and comment.
The SSG was developed to accelerate
decision making at CERCLA and other
cleanup sites by focusing investigations
on exposure pathways and
contaminated areas of concern and
eliminating certain pathways, areas, and
contaminants not of concern from more
detailed assessments. The SSG provides
a framework for developing site-specific
screening levels for residential-based
exposure scenarios.
Specific soil screening levels (SSLs),
derived in accordance with the SSG, are
defined as contaminant concentrations
in soil belbw which no further action or
study would generally be warranted
under CERCLA. They are not intended
to be cleanup levels. According to the
SSG, where soil contaminant
concentrations equal or exceed SSLs,
further assessment, but not necessarily a
cleanup, would likely be warranted.
EPA is evaluating comments on the
draft guidance and intends to issue final
soil screening guidance in the near
future. The Agency anticipates that the
SSG may also be used to develop action
levels for certain RCRA corrective action
facilities. For more information on the
role of action levels during corrective
actions, see Section III.C.2.e of today's
Notice. :
c. Presumptive Remedies. The
Superfund program began developing
presumptive remedy guidance ill 1991,
to use pastexperience to streamline
cleanups. Presumptive remedies are
preferred technologies for common
categories of sites, based on historical
patterns of remedy selection and EPA's
scientific and engineering evaluation of
performance data on technology
implementation. The Agency expects •
that presumptive remedies will be used
at all appropriate sites; including RCRA.
facilities, to help ensure consistency in
remedy selection and implementation
and to reduce the cost and time required
to investigate and remediate similar
types of sites. Several presumptive
remedy guidance documents are ,
available and have been placed in the
docket for today's Notice, including:
Presumptive Remedies: Policies and
Procedures; Presumptive Remedy for .
CERCLA Municipal Landfill Sites;
Presumptive Remedies: Site
Characterization and Technology
Selection for CERCLA Sites with
Volatile Organic Compounds in Soils;
and, Presumptive Remedies for Soils,
Sediments and Sludges at Wood
Treating Sites. Future presumptive
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remedy guidance documents may
address sites with groundwater
contamination, sites contaminated with
polychlbrinated biphenyl compounds
(PCBs), and manufactured gas sites.
d. Community Based Remedy
Selection. In ah effort to increase
community involvement, EPA plans to
pilot a new community-based
Superfund remedy selection process.
Under this process, EPA will assist
community groups, local governments
and other stakeholders in developing
consensus and becoming more directly
involved in remedy selection at select
Superfund sites.
During the first half of fiscal year
1996, EPA will develop guidelines and
options for community-based'remedy
selection pilot programs at specific sites.
These pilot programs will empower
affected parties to'play a direct role in
finding a protective, cost-effective
remedy for a Superfund site in their, ,
community, inform affected parties of
the applicable statutory and regulatory
requirements, and improve community
understanding and acceptance of
Superfund remedies. EPA will use the
results of the Superfund community-
based remedy selection pilot programs
as it works to improve public
participation at RCRA corrective action
facilities.
7. Brownfields Initiative
EPA developed the Brownfields
Economic Redevelopment Initiative to
help communities revitalize abandoned,
idled, or under-used industrial and
commercial sites where expansion or
redevelopment is complicated by
environmental contamination. Through
the Brownfields Action Agenda, the
Agency committed to fund up to 50 ,
Brownfield Pilot Programs to explore
brownfield characterization and
redevelopment strategies at the local
level. The brownfields pilots will test
redevelopment models, direct special .,
efforts toward removing regulatory
barriers without sacrificing
protectiveness, and facilitate
coordinated environmental cleanup
efforts at the Federal, state and local
levels. The Pilots are intended to
provide EPA, states, tribes,
municipalities, and communities with
useful information and strategies as they
continue to seek new methods to •
promote a unified approach to site
assessment, environmental cleanup, and
redevelopment. To date, EPA has
awarded 40 pilots.
EPA anticipates that many approaches
to cleanup and site redevelopment
evolving from the Brownfields Initiative
will have direct application to the
corrective action program and the
Subpart S Initiative.
8. Environmental Justice
Executive Order 12898, "Federal
Action to Address Environmental
Justice in Minority Populations and
Low-Income Populations," directs each
Federal Agency to ".'.. make achieving
environmental justice part of its mission
by identifying and addressing, as
appropriate, disproportionately high
and adverse human health and
environmental effects of its programs,
policies and activities on minority
populations and low income
populations." In response to the
Executive Order and to concerns voiced
by many groups outside the Agency,
EPA issued a Directive on September
21,1994 which required that
environmental justice issues be
considered at all stages of policy,
guidance and regulation development.
EPA has identified four main areas of
environmental justice concerns within
the Subpart S Initiative: (1) outreach to
stakeholders, including members of
affected communities, during the
rulemaking process; (2) public
participation on a site-specific level
during the corrective action process; (3)
public participation in future land-use
and associated remedial decisions; and
(4) ensuring the continued effectiveness
of any institutional controls. The
Agency recognizes that discussions of
streamlining, such as those in today's
Notice, often raise concerns in
environmental justice communities. The
Agency remains committed to
identifying and addressing
environmental justice concerns and to
expanding public participation in the
corrective action process, and would
welcome the involvement of the
environment justice community in
development of the Subpart S Initiative.
9. Permits Improvement Team
In July 1994, EPA organized a group
of state, tribal and local government
officials to examine and propose
improvements to EPA's permit
programs. This group is known as the
Permits Improvement Team. The
Permits Improvement Team is
examining ways to streamline the
permitting process, exploring
alternatives to individual permits, and
evaluating ways to enhance public
participation in permitting. For RCRA
corrective action, the emphasis is on
addressing RCRA and non-RCRA
facilities in order of environmental -
priority, rather than having a state's
priorities skewed by the RCRA permit
process. For example, the RCRA permit
could include a general provision to
require compliance with the state's
existing environmental cleanup . •
program. Any changes to the RCRA
permitting program that result from the
Permits Improvement Team's efforts
will be considered as EPA implements
the Subpart S Initiative.
m. Corrective Action Implementation
As discussed in Section II of today's
Notice,. EPA generally uses the 1990
corrective action proposal,
supplemented by later guidance, as a
guideline for corrective action
implementation. The 1990 proposal was
intended to support a flexible approach
to corrective action; Unfortunately, EPA
believes the proposal has at times been
interpreted too narrowly, and much of
the intended flexibility has been under
used. In addition, the nature of the.
corrective action program and some of
EPA's positions have evolved since
1990.
For the benefit of those involved with
the corrective action program, and to
provide context for the requests for
comment in Section V of .today's Notice,
this section provides a general status
report on the corrective action program,
and how it has evolved since the 1990
proposal and includes guidance on a
number of topics not fully addressed in
19,90. It also emphasizes the flexibility
inherent in the current corrective action
program and encourages program
implementors and facility owners/
operators to take advantage of this
flexibility to improve the corrective
action process aind expedite cleanups.
A. Program Management Philosophy
More than 5,000 facilities are subject
to RCRA corrective action, over three
times the number of sites on CERCLA's
National Priorities List (NPL). The
degree of investigation and subsequent
corrective action necessary to protect
human health and the environment
varies significantly across these
facilities. Some facilities may require no
cleanup at all or only minor corrective
action, while others are as complex and
highly contaminated as any Superfund
site. To account for the variety of
corrective action facilities and site-
specific circumstances', EPA has
emphasized a flexible, facility-specific
approach to corrective action. Few
cleanups will follow exactly the same
course; therefore, program
implementors aiid facility owners/
operators must be allowed significant
latitude to structure the corrective
action process, develop cleanup
objectives, and select remedies :
appropriate to facility-specific
circumstances. At the same time, a
number of basic operating principles
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19441
guide corrective action program
implementation and development.
(1) Corrective Action Decisions Should
Be Based on Risk
. As in most EPA programs, the
Agency's fundamental goal in the
corrective action program is to control
or eliminate risks to human health and
the environment. Risk-based decision
making is especially important in the
corrective action program, where it
should be used to ensure that corrective
action activities are fully protective
given reasonable exposure assumptions
and consistent with the degree of threat
to human health and the environment at
a given facility.
(2) Program Implementation Should
Focus on Results
The purpose of the corrective action
program is to stabilize releases and
clean up RCRA facilities in a timely
manner, not to ensure compliance with
or fulfillment of a standardized process.
Program implementors and facility
owners/operators should focus on
environmental results rather than
process steps and ensure that each
corrective action related activity at any
given facility directly supports cleanup
goals at that site. In focusing on results,
program implementors are encouraged
to use innovative approaches to
management and oversight.
(3) Interim Actions and Stabilization
Should Be Used To Reduce Risks and
Prevent Exposures
A primary implementation strategy of
the corrective action program is to focus
resources first on stabilizing continuing
releases and controlling exposure at
facilities undergoing corrective action.
Once a facility is stabilized, Agency
oversight at that facility can be reduced
and resources shifted to other facilities
of concern. By focusing on stabilizing
many facilities, rather than pursuing a
final cleanup at a few facilities, EPA can
achieve a greater overall level of human
health and environmental protection in
the near-term.
(4) Activities at Corrective Action
Facilities Should Be Phased
Significant efficiencies can be gained
by phasing corrective action at
individual facilities to focus on areas of
the facility that represent the greatest
risk to human health and/or the
environment. Phasing allows
information obtained from previous
phases to be used for planning and
refining subsequent investigations or
responses. Using a phased approach,
response actions can be taken at some
high-priority areas of the facility while
other lower-priority areas are addressed
at a later time.
(5) Program Implementation Should
Provide for Meaningful Inclusion of All
Stakeholders
EPA is committed to including all
stakeholders in the corrective action
process. Stakeholders are included in
both facility-specific decision making
through public participation activities
and in the development of the national
corrective action program. The Agency
believes stakeholder involvement is
essential in all corrective action
cleanups, regardless of the oversight
mechanism used (e.g., order, permit,
state authority, voluntary action).
(6) Corrective Action Obligations
Should Be Addressed Using the Most
Appropriate Tool for Any Given Facility
EPA recognizes that there are many
mechanisms or tools which can be used
to ensure appropriate corrective action
at any given facility, including RCRA
orders or permits, state cleanup orders,
and voluntary cleanup programs. Each
mechanism has advantages and
disadvantages when applied to
individual facilities. Program
implementors and facility owners/
operators should carefully consider
these advantages and disadvantages
when choosing a corrective action
mechanism.
(7) States Will Be the Primary
Implementors of the Corrective Action
Program
Since corrective action requirements
will be, predominantly, implemented by
states, EPA is committed to full and
meaningful state involvement in
development of corrective action
implementation strategies, policy,
guidance and regulations.
B. Scope and Definitions
Corrective action requirements apply
at hazardous waste treatment, storage
and disposal facilities (TSDFs). These
include permitted facilities and
facilities that have, have had, or should
have had RCRA interim status. This
collection of facilities is typically
referred to as the "corrective action
universe." Corrective action may be
required for releases of hazardous waste
or hazardous constituents from these
facilities, as necessary to protect human
health and the environment. EPA does
not generally require corrective action at
facilities which, are issued land
treatment demonstration permits,
emergency permits, permits-by-rule for
ocean disposal, or research,
development and demonstrations
permits unless these facilities otherwise
become subjelt to RCRA operating or
post-closure permitting requirements.
The 1990 proposal established EPA's
views on the scope and applicability of
RCRA corrective action authorities.
Although EPA's views have largely
remained unchanged in this area, there
have been several important refinements
or developments, as discussed below.
1. Concept of Parity
Most facilities in the RCRA corrective
action universe are potentially subject to
cleanup under numerous cleanup
authorities, including state or Federal
Superfund authorities. The potential for
overlapping application of these
authorities can cause confusion and
concern in the regulated community
and among state and Federal regulators.
In the 1990 proposal, EPA stated that
one of the Agency's primary objectives
was "to achieve substantial consistency
with the policies and procedures" of the
Superfund remedial program. The logic
behind this concept is that, since both
programs address cleanup of potential
and actual releases, both programs
should arrive at similar remedial
solutions. EPA's position is that any
procedural differences between RCRA
and CERCLA should not substantively
affect the outcome of remediation.
Generally, cleanup of any given site or
area at a facility under RCRA corrective
action or CERCLA will substantively
satisfy the requirements of both
programs. We believe that, as a general
matter, RCRA and CERCLA program
implementors can defer cleanup
activities from part or all of a site to one
program with the expectation that no .
further cleanup will be required under
the other program. For example, when
investigations or studies have been
completed under one program, there
should be no need to review or repeat
those investigations or studies under
another program. Similarly, a remedy
that is acceptable to one program can be
presumed to meet the standards of the
other.3 The same principle should apply
to authorized state corrective action
programs and state CERCLA analogous
programs. Over half the states have
Superfund-like authorities. In some
cases, these authorities may be
substantively equivalent in scope and
effect to the Federal CERCLA program,
and therefore are likely to be
substantially equivalent to the RCRA
corrective action program.
3 In some cases specific releases or constituents
are not "solid wastes" under RCRA. For example,
RCRA excludes from the definition of solid wasSe
certain source, special nuclear, or byproduct
material as defined by the Atomic Energy Act 42
U.S.C. §2011.
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EPA emphasized the concept of parity
in a recently issued policy for deleting
RCRA facilities from the NPL and
deferring their cleanup to the RCRA
corrective action program (60 FR
14641), available in the docket for
today's Notice.4 EPA is planning to
issue additional guidance on RCRA and
CERCLA parity in an upcoming policy
memo, "Coordination of RCRA/CERCLA
Activities" and through the inter-agency
and state "Lead Regulator Workgroup."
2. Voluntary Cleanup
EPA strongly encourages voluntary
corrective actions. As discussed in the
1990 proposal, voluntary cleanups have
a number of advantages, including
timeliness, flexibility, and efficient use
of facility owner/operator and Agency
resources. Unfortunately,
representatives of the regulated
community have, on occasion,
complained that procedural barriers
have delayed cleanups they were
willing to undertake voluntarily. Over.
the last few years, EPA and the states
have taken significant steps to address
this concern and to further encourage
and facilitate voluntary actions. For
example, EPA is planning to issue
guidance on the use of state voluntary
cleanup programs to address
contamination at sites that may be
subject to cleanup under the
Comprehensive Environmental
Response, Compensation, and Liability
Act including hazardous, waste
generators, unregulated by RCRA
corrective action requirements. The
Guidance for Development of
Memoranda of Agreement (MOA)
Language Concerning State Voluntary
Cleanup Programs is being developed in
partnership with interested states and
will outline general principles which
EPA will use when deciding whether to
endorse a state voluntary cleanup
program and to assure private parties
that subsequent Federal action under
CERCLA will not be taken except under
limited circumstances.
The same general principles
established in the CERCLA MOA
guidance may apply to the use of state
voluntary cleanup programs at facilities
subject to RCRA corrective action;
however, because of distinctions in
statutory requirements, consideration of
additional factors may be required of
those programs. Issues associated with
voluntary cleanups at facilities subject
"The RCRA deletion policy does not pertain to
Federal Facilities, even if such facilities are also
subject to RCRA Corrective Action; however,
program implementors and facility owners/
operators are encouraged to use interagency
agreements to eliminate duplication of effort,
including oversight, at Federal facilities.
to RCRA corrective action, including the
use of state voluntary cleanup programs,
are discussed in Section V.D.3 of today's
Notice.
3. Definitions
The 1990 proposal included
definitions for a number of terms which
help to further define the applicability
of RCRA corrective action. Pending final
action on the proposal, EPA has
generally continued to interpret these
terms consistently with the proposal;
however, as EPA has gained experience
with applications in particular cases, it
has refined its interpretations in some
respects. The following discussion
highlights the way in which these issues
have been addressed in some specific
situations (e.g., cases decided by the
EPA Environmental Appeals Board
(EAB)).
a. Facility. Under RCRA § 3004(u),
corrective action is required for releases
. form solid waste management units at
facilities seeking RCRA permits. The
1990 proposal defined "facility" as "all
contiguous property under the control
of the owner or operator seeking a
permit under Subtitle C of RCRA." This
definition was finalized when the rule
on corrective action management units
(CAMUs) was promulgated (58 FR 8658,
February 16,1993) and is now codified
at 40 CFR 260.10. For reasons discussed
in the 1990 proposal, the term "facility"
for corrective action purposes is
separate and substantively different
from the facility definition for other
RCRA purposes.
A number of issues continue to arise
regarding the application of the facility
definition. A common issue is whether
or not a certain parcel is considered
"contiguous" for purposes of the
corrective action facility definition. One
such situation is the case of two parcels
under common ownership but separated
by a road or public right of way. In the
1990 proposal, EPA indicated it would
interpret such parcels to constitute a
single facility for purposes of corrective
action. This approach was recently
accepted by the EAB, which held that
two parcels were a single facility where
they were separated by a privately
owned railroad line (In re Exxon Co.,
USA, RCRA Appeal No. 94-8 (EAB May
17,1995)).
Another common scenario involves
two geographically separated parcels
under common ownership that are
connected by ditches, bridges', or other
links under the control of the facility
owner/operator. In the Exxon permit
appeal, the EAB noted the fact that the
two parcels (which it found to be
"contiguous" in any case) were also
connected by a sewer system collecting
waste water from different parts of the •.
facility. It pointed out that in an earlier
case, evaporation ponds three miles ;
from a refinery were treated as part of
the same facility because they were
linked to the refinery by a drainage
ditch controlled (although not owned)
by the same party. (See, In re Navajo
Refining Co., RCRA Appeal No. 88-3
(Adm'r June 27,1989)). In a separate
final RCRA section 3008(h) order, EPA
has determined that two parcels on
opposite sides of a river, but connected
by a trestle, constitute a single facility
for corrective action purposes. (See, In
re Sharon Steel Corp., Docket No. RCRA
III-062-CA (Region III).)
The 1990 proposal requested
comment on how the definition of
facility should apply where a large
parcel is owned by one party who leases
a small portion to another party for a
RCRA-permitted facility. In the
proposal, EPA indicated that it would
consider corrective action requirements
to extend to SWMUs throughout the
larger parcel. At the same time, EPA
recognizes that there are differing views
as to the policy merits of this
interpretation and invites further
comment in section V.C.2 of today's
Notice.
b. Release. The definition of release
for corrective action was first discussed'
in the 1985 HSWA codification rule (50
FR 28702, July 15, 1985). In the 1985
rule, EPA wrote that the definition of
release for corrective action should, at a
minimum, be as broad as the definition
of release under CERCLA. Accordingly,
EPA has interpreted the term release to
mean "any spilling, leaking, pumping,
pouring, emitting, emptying,
discharging, injecting, escaping,
leaching, dumping or disposing into the
environment." (See, 50 FR 28713, July
15,1985.) In the 1990 proposal, EPA
clarified that the definition of release
also includes abandoned or discarded
barrels, containers, and other closed
receptacles containing hazardous wastes
or constituents and that it could include
releases that are permitted under other
authorities, such as the Clean Water Act.
EPA continues to adhere to these
interpretations of the term "release."
c. Solid Waste Management Unit. In
1990, EPA proposed to define the term
"solid waste management unit" or
"SWMU" to mean, "Any discernible
unit at which solid wastes have been
placed at any time, irrespective of
whether the unit was intended for the
management of solid or hazardous
waste. Such units include :any area at a
facility at which solid wastes have been
routinely and systematically released."
Pending resolution of the 1990 proposal,
EPA has used this definition in
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corrective action implementation. The
inclusion of units not specifically
intended for the management of solid or
hazardous waste is supported by the
legislative history of RCRA sections
3004 (u) and"(v), and this point has been
applied in decisions by the EAB. (See,
e.g., Jn re General Motors Corp., RCRA
Appeal No. 90-24 (EAB Nov. 6,1992).)
As discussed in the 1990 proposal,
not all areas where releases have
occurred are considered SWMUs. .In the
1990 proposal, EPA indicated a one-
time spill which had been adequately
cleaned up would not constitute a
SWMU; on the other hand, a location at
which wastes or other materials were
released in a routine and systematic
manner (such as a loading area where
minor spills or leaks occurred routinely
over time) would be a SWMU. The 1990
proposal indicated that industrial
sewers used for collecting wastes would
constitute SWMUs. This interpretation,
which was based in part on earlier
decisions in permit appeals, has been.
affirmed by the EAB, in In re Amoco Oil
Co., RCRA Appeal No. 92-21 (EAB Nov.
23,1993).
The definition of a SWMU is often a
point of disagreement when corrective
action permits or orders are issued.
Facility owners/operators and
representatives of the regulated
community often argue that Congress
intended the RCRA corrective action
program to be focused on waste
management units (i.e., SWMU) and
that non-waste-management related
releases (e.g., spills) should be
addressed by other cleanup programs or
authorities. EPA notes that authority
exists for requiring corrective action for
releases that are not attributable to
SWMUs. Given the legislative history of
RCRA section 3004(u), which
emphasizes that RCRA facilities should
be adequately cleaned up, in part, to
prevent creation of new Superfund sites,
EPA believes that corrective action
authorities can be used to address all.
unacceptable risks to human health or '
the environment from RCRA facilities.
In the permitting context, remediation
of non-SWMU related releases may be
required under the "omnibus" authority
(see 40 CFR 270.32(b)(2)) which allows
EPA to impose such permit conditions
as are necessary to protect human health
and the environment. In other contexts,
orders under RCRA sections 3008(h) or
7003 may require remedial action to
address releases regardless of whether a
SWMU is present. Therefore, extended
debate or litigation over a particular
SWMU designation will in many cases
be unproductive for all parties and, as
a general principle, EPA discourages
debate on these issues, believing that
discussions should more properly focus
on whether there has been a release that
-requires remediation.
To reflect a more holistic approach,
permits and orders often use the term
"area of concern" to refer to releases
which warrant investigation or
remediation under the authorities
discussed above, regardless of whether
they are associated with a specific
SWMU as the term is currently used.
For example, when an overseeing
agency believes one-time spills of
hazardous waste or hazardous
constituents have not been adequately
cleaned up, these releases are often
addressed as areas of concern.
d. Hazardous Waste and Hazardous
Constituent. RCRA section 3004(u)
requires corrective action for releases of
"hazardous wastes or constituents." As
discussed in the 1990 proposal, EPA
interprets the term "hazardous waste,"
as used in RCRA section 3004(u) to
include all wastes that are hazardous
within the statutory definition in RCRA
section 1004(5), not just those that are
either listed or identified by EPA
pursuant to RCRA section 3001.
EPA also used the 1990 proposal to
discuss use of the phrase "or
constituents" in RCRA section 3004(u).
EPA views this phrase as significant in
two ways. First, it indicates that
Congress was particularly concerned
that, within the broad category of wastes
that might be "hazardous" within the
statutory definition, the corrective
action authority should be used to
address the specific subset of
"hazardous constituents." Second, it
indicates that the corrective action
authority was not intended to be limited
to hazardous waste, and extends to
hazardous constituents regardless of •
whether they also fall within the term
"hazardous waste," or whether they
were derived from hazardous-waste.
Under this interpretation, constituents
that were contained within
nonhazardous solid wastes may be
addressed through corrective action.
C. Corrective Action Process
The corrective action process
discussed in the 1990 proposal was
structured around five elements
common to most cleanup activities:
initial site assessment, site
characterization, interim actions,;
evaluation of remedial alternatives, and
implementation of the selected remedy.
These elements typically occur, to one
degree or another, during most
cleanups. As .discussed in the 1990
proposal, EPA emphasizes that no one ,
approach to implementing these . .
cleanup elements is likely to be
appropriate for all corrective action .
facilities; therefore, a successful
corrective action program must be
procedurally flexible. In addition, these
cleanup elements should not become
ends in themselves; EPA .continues to
encourage program implementors and
facility owners/operators to focus on the
desired result of a cleanup rather than
a mechanistic cleanup process. These
five elements should be. viewed as
evaluations necessary to make good
cleanup decisions, not prescribed steps
along a path.
1. Initial Site Assessment
The first element in most cleanup
programs is an initial site assessment.
During the initial site assessment
information is gathered on site
conditions, releases, potential releases,
and exposure pathways to determine
whether a cleanup may be needed and
to identify areas of potential concern.
Overseeing agencies may also use initial
site assessments to set relative priorities
between sites and allocate oversight and
other resources.
In'the CERCLA program, the initial
site assessment is called a Preliminary
Assessment/Site Investigation, or PA/SI;
in the corrective action program, it is
referred to as a RCRA Facility
Assessment or RFA. During an RFA, an
Overseeing agency typically compiles
existing information on environmental
conditions at a given facility and, as
necessary, gathers additional facility-
specific information on solid waste
management units and other areas of
concern, releases, potential releases,
release pathways, and receptors.
Information gathered during an RFA
usually forms the basis for initiating full
scale site characterization
a. Facility Owners/Operators May
Gather RFA Information. At the time to
today's Notice, EPA and the states have
completed 3,534 RFAs at RCRA
facilities. In the past, EPA has been
reluctant to allow facility owners/
operators to conduct RFAs because of
concern over the adequacy of the facility
submissions; however, by now the RFA
is a well developed process and EPA
believes it may be more reasonable to
accept the work of facility owners/
operators. Where RFAs have not yet
been completed, facility owners/
operators may choose to conduct their
own site assessment and submit the
report to EPA for review. If EPA believes
the site assessment is adequate, the site
assessment may be approved and :
adopted as the RFA for the facility. In
the same way, when an RFA was
completed some years ago, a facility
owner/operator might conduct a site
assessment to update the RFA and
submit it to EPA for review, approval
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and adoption as an RFA update. Facility
owners/operators who choose to
conduct or update,their own RFAs
should ensure that they address all solid
waste management units and other areas
of concern at the facility. Guidance on
the scope of RFAs is available in "RCRA
Facility Assessment (RFA) Guidance"
EPA/530/SW-86/053, PB87-107769,
October 1986, which has been placed in
the docket for today's Notice. Facility
owners/operators who want to obtain a
copy of the RFA conducted for their
facility should contact the appropriate
EPA Regional Office or their authorized
state. ' •
b. Release Assessment. Release
assessments (sometimes referred to as
Phase 1 assessments) are used tp
confirm or reduce uncertainty about
solid waste management units, areas of
concern, and potential releases
identified during the initial site
assessments. Under the corrective action
process as originally conceived,
program implementors and facility
owners/operators would typically move
directly from the initial site assessment
to full scale site characterization. As
program implementors and facility
owners/operators have gained
experience in corrective action
implementation, they have often found
it advantageous to conduct a limited
release assessment after the RFA but
before full scale site characterization, tp
focus subsequent investigations or
eliminate certain units or areas from
further consideration. Release.
assessments can be especially helpful in
cases where the RFA is old or where the
overseeing agency and the facility
owner/operator disagree about inclusion
of one or more units, areas, or releases
in the site characterization.
Information collected during a release
assessment can be used to focus site
characterizations on the areas and
releases and exposure pathways which
constitute the greatest risks or potential •
risks to human health and the
environment and to eliminate areas
from consideration during site
characterization. For example, an initial
site assessment could identify an old
waste pile as a solid waste management
unit. The facility owner/operator might
present information showing that the
waste in the pile had been removed;
however, there may be little or no
information to confirm that releases
from the unit (if any) were adequately
addressed during waste removal. The
facility owner/operator could, during a
release: assessment, conduct highly.
focused sampling at the unit to confirm
that releases either had not occurred or
were adequately remediated.
c. National Corrective Action ,
Prioritization System. Implementing
agencies often use initial site
assessments to set priorities for limited
oversight resources. In the corrective
action program, EPA sets priorities
using the National Corrective Action
Prioritization System (NCAPS). NCAPS
priorities are generally based on
information gathered during the RFA.
Because of the number of facilities
subject to corrective action, the variety
of facility-specific conditions, and the
limitations on Agency oversight
resources, careful prioritization is
essential. The Agency's policy is to
focus its corrective action resources first
on facilities and areas at facilities which
present the greatest relative risk to
human health and the environment.
Accordingly, NCAPS considers the
environmental setting of a facility and
potential receptors, actual and potential
releases of hazardous wastes or •
constituents from the facility, and the
toxicity of constituents of concern to
group facilities into high, medium and
low priority groups.
NCAPS rankings are based on risk,.
but NCAPS does not involve a
traditional site-specific risk assessment.
NCAPS is a resource management tool
that EPA and authorized states use to set
relative priorities among corrective
action sites to focus limited agency
resources. Currently 40% of facilities
subject to corrective action are
considered high priority, 30% medium,
and 30% low.
2. Site Characterization
Before cleanup decisions can be
made, some level of characterization is
necessary to ascertain the nature and
extent of contamination at a site and to
gather information necessary to support
selection and implementation of
appropriate remedies. In the CERCLA
program, this step is referred to as the
Remedial Investigation or RI; in the
RCRA program, the RCRA Facility
Investigation or RFI.
Carefully designed and implemented
RFIs are critical to accurately
characterize the nature, extent,
direction, rate, movement, and
concentration of releases at a given
facility; this information is needed to
determine potential risks to-human
health and the environment and support
development and to implementation of
corrective measures should they prove
necessary. It can also be used to
eliminate facilities which are shown not
to present unacceptable risks from
further consideration. A successful RFI
will identify the presence, movement,
fate, and risks associated with '
environmental contamination at a site
and will elucidate the chemical and
physical properties of the site likely to
influence contamination migration and
cleanup.
The 1990 proposal outlines the types
of information which may be required
during a remedial investigation. As
discussed in the 1990 proposal, program
implementors and facility owners/
operators should gather tie information
necessary to support cleanup decisions;
collection of all the information
discussed in the 1990 proposal will not
be necessary at most facilities.
Experience in corrective action -
implementation has demonstrated that
poorly focused investigations can
become a drain on time and resources
and, in some cases, unnecessarily delay
remedial actions. EPA emphasizes that
remedial investigations should be
tailored to the specific conditions and
circumstances at the facility and
focused on the units, releases, and
exposure pathways of concern. For
example, in delineating the extent of
contamination it may not be necessary
to delineate to background
concentrations in all cases. In some
cases, information adequate to support
cleanup decisions can be obtained
through delineation to risk-based
concentrations or other investigation
endpoints. For example, an
investigation endpoint might be based
on the presence or absence of a
competent confining layer rather than
constituent concentrations.
EPA has found a number of
approaches to be particularly helpful in
developing focused site investigations,
as discussed below.
a. Conceptual Site Models. Site
investigations and remedy
implementation are, often most
successful when based on a "conceptual
site model." A conceptual site model is
a three-dimensional picture of site •
conditions that conveys what is known
or suspected about the sources, releases
and release mechanisms, contaminant
fate and transport, exposure pathways
and potential receptors, and risks. The
conceptual site model is based on the
information available at any given time
and will evolve as more information
becomes available. The conceptual site
model may be used to present
hypotheses that additional
investigations could confirm or refute,
to support risk-based decision-making,
and to aid in identification and design
of potential remedial alternatives.
The conceptual site model is not a '
mathematical or computer model,
although these tools often prove helpful
in visualizing current information and
predicting future conditions. The
conceptual site model can be
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19445
documented by written descriptic
site conditions and supported by:
ptions of
by maps,
cross sections, analytic data, diagrams of
the site that illustrate actual or potential
receptors, and other descriptive tools.
The conceptual site model is dynamic
and should be tested and refined from
the very first stages of corrective action
to the point at which the site has been
remediated and no longer presents a
threat to human health or the
environment. The RCRA Facility
Assessment often forms the basis for the
first conceptual model of the site. At
this stage, the model should be used as
a tool to compile available and relevant
information and to identify the urgency
and scope of subsequent investigations
as well as interim actions. One use of
the conceptual site model could be to
ensure that site conditions are
consistent with the underlying
assumptions that were used to develop
standardized action levels (see Section
III.C.2.e). The model can also be used to
support phasing of site investigations to
ensure data collection efforts address
the most important information needs.
In addition, a conceptual site model can
be a critical tool for evaluating remedy
performance.
More detailed guidance on the
development and use of the conceptual
site model is available in "Guidance for
Evaluating the Technical •
Impracticability of Ground Water
Restoration" (EPA/540-R-93-080).
Additional guidance on using
conceptual models will be included in
the upcoming Soil Screening Guidance •
(see, Section n.F.6.b).
b. Innovative Site Characterization
Technologies. In the 1990 proposal, EPA
recommended a focused approach to
site characterization activities. EPA
continues to support data collection
approaches that focus on information
needed to support decisions. The
Agency has seen tremendous
improvements in site characterization
efficiency when innovative approaches
are used, especially those that rely on
rapid sample collection (e.g., direct-
push technologies) and on-site
analytical techniques (e.g., sensor
technologies, assay kits, field gas
chromatography/mass spectrometry
(GC/MS), X-ray fluorescence).
Depending on the data quality
objectives for a particular site,
confirmatory laboratory analyses may
also be necessary. Data quality
objectives are discussed in Section
in.C.2.c, below.
The benefits of using innovative site
characterization technologies are
magnified when a work plan is used
only to convey strategies, methods, data
quality objectives, and general areas
subject to investigation, and exact
sample locations are left to be
determined based on iterative on-site
data collection and analysis. Some of
the benefits of using innovative
characterization techniques along with
iterative decision-making include:
Rapid sample collection and analysis
allowing for on-site decision making
and optimization of the investigation
effort; enhanced three-dimensional
understanding of the site because of the
greater number of data points available
for a given commitment of resources;
better identification of actual or
potential risks to human health and
environmental receptors; and, more
rapid assessment of the need for interim
actions.
Program implementors and facility
owners/operators should take advantage
of innovative characterization
technologies. Likewise, EPA encourages
implementing officials to be receptive to
innovative approaches which can
significantly improve the quality as well
as the cost- and time-effectiveness of
site characterization.
c. Tailored Data Quality Objectives.
Program implementors and facility
owners/operators should tailor data
gathering strategies to the purpose for
which the data will be used. The overall
degree of data quality or uncertainty
that a decision maker is willing to
accept is referred to as the Data Quality
Objective (DQO) for a decision. The
DQO is used to specify the quality of the
data, usually in terms of precision, bias,
representativeness, comparability ^and
completeness. The DQO approach
applies to the entire measurement
system (e.g., sampling locations,
methods of collection and handling,
field analysis, etc.), not just to
laboratory analytical operations. In
general, EPA has found that DQOs can
and should be used to ensure that
environmental data are scientifically
valid, defensible, and of an appropriate
level of quality given the intended use
for the data.
Program implementors and facility
owners/operators using innovative site
characterization and assessment
approaches should pay particular
attention to DQOs. For example, an
objective of the early stages of an
investigation could be to identify the
presence of gross contamination. In this
context, a DQO could include a higher
method detection limit (e.g., part per
million) that could be obtained with
cost-effective-field screening
technologies. In contrast, a very low
method detection limit (part per billion
or even trillion) could be an appropriate
DQO to determine if groundwater is fit
for human consumption.
EPA encourages program
implementors and facility owners/
operators to use the.DQO approach to
define adequate data collection for
corrective action decisions. EPA has
found that site investigations can be
expedited considerably when DQOs are
carefully established. For additional
information on incorporating DQOs in
the decision-making process at RCRA
facilities, see Chapter One of SW-846
(Chapter One of SW-846, Test Methods
for Evaluating Solid Waste, Physical/
Chemical Methods, Third Edition as
amended by Update I, July 1992); "Final
Guidance for the Data Quality Objective
Process" EPA QA/G-4, September 1994;
and, "Quality Assurance Project Plans
for RCRA Ground-Water Monitoring and
Corrective Action Activities" EPA,
Sylvia Lowrance and H. Matthew Bills,
July 1993, available in the docket for
today's Notice.
d. Use of Existing Information to
Streamline the Remedial Investigation.
Many RCRA facility owners/operators
have collected information on physical
characteristics or on the nature and
extent of contamination at the facility
outside of the RCRA corrective action
process. Information on site conditions
may have also been obtained by entities
other than the facility owner/operator.
As a general principle, information that
is not time dependent should not be
collected again; EPA encourages the
incorporation of pertinent existing
information into the corrective action
process. For example, many states have
required facilities to conduct
groundwater investigations under state
laws for units that are not regulated
units under RCRA; this information can
often be easily incorporated into a
corrective action investigation.
Similarly, information collected through
a state Superfund process is also
generally of appropriate quality to be
directly useable to support corrective
action decisions.
Information that is relevant to
corrective action may exist in reports or
formats that are not traditionally used
for RCRA corrective action. For
example, engineering boring logs may
have been generated on the facility by
local utility companies, or by the facility
itself during building construction.
Provided data and information are
submitted in a usable format, state or
Federal agencies overseeing RCRA
corrective actions should not require
adequate information to be recollected
or reformatted.
Facility owners/operators who are
developing site characterization or other
information independently are urged to
document the quality of their
information carefully. Thorough
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documentation of data quality will
increase its usefulness in the corrective
action process. Use of existing
information can reduce costs of
conducting investigations and increase
the speed of corrective action cleanups.
To determine whether existing data is
appropriate for corrective action
decisions, the nature and quality of the
information should be assessed in view
of the goals of the corrective action
investigation. Where DQOs have been
established, existing data can be
assessed against DQOs to determine
their adequacy. For example, the DQO
for a specific corrective action decision
could be a minimum analytical
detection limit that is considerably
lower than that used in an existing
study. In this case, non-detects in the
existing data could not be used to justify
no action; however, the existing data
could be used to determine "hot-spots"
and to plan a second phase study using
a more sensitive analytical method. On
the other hand, if the detection limits
were below an acceptable risk level and
no constituents were detected, re-
sampling would not typically be
required—even if more sensitive
methods were available.
EPA regions and states are currently
incorporating existing information into
ongoing corrective actions. If the
regulatory agencies are aware of
pertinent existing information at the
time of issuance of a permit or order,
they have the option of explicitly
referencing the relevant information in
the facility investigation requirements of
the permit or order or, if the data are of
sufficient quality and quantity, stating
that the data fulfill site investigation
needs. In some cases, the facility owner/
operator will inform the overseeing
agency of existing information; EPA or
the states have the option of redirecting
any investigations based upon the
relevance of this information.
e. Role of Action Levels. At certain
facilities subject to corrective action,
contamination will be present at
concentrations that may not justify
further action. For this reason, EPA has,
in some cases, used the concept of
"action levels" as a trigger mechanism
for conducting additional corrective
action activities (e.g., additional
investigations, evaluation of remedial
alternatives, site-specific risk
assessments). Under this approach,
contamination found in a particular
medium below an appropriate action
level would not generally be subject to
remediation or further study.
Action levels are health- or
environmental-based concentrations
derived using chemical-specific toxicity
information and standardized exposure
assumptions. Action levels are often
established at the more protective end of
the risk range (e.g., 10-6) using
conservative exposure and land use
assumptions; however, action levels
based on less conservative assumptions
could be appropriate based on site-
specific conditions. For example, if the
current and reasonably anticipated
future uses of a site are industrial, an
action level based on industrial
exposure scenarios could be
appropriate.
Action levels can be developed on a
facility-specific basis or can be taken
from standardized lists. Currently, some
states and EPA Regions have developed
standardized lists of action levels or
cleanup levels (standardized cleanup
levels can serve as action levels) for
RCRA corrective action facilities and
other cleanup sites. One of the earlier
and more widely distributed lists of
action levels was developed by EPA and
included in Appendix A of the
preamble to the 1990 proposal. Since
1990, toxicity research has progressed;
accordingly, some of the action levels
included in the 1990 proposal may no
longer be appropriate. In addition, the
action levels in the 1990 proposal were
based on residential land-use
assumptions which may not be
appropriate at all corrective action
facilities. Program implementors and
facility owners/operators should ensure
that action levels used at RCRA
corrective action facilities reflect up-to-
date toxicity information and that action
level assumptions are consistent with
the physical conditions and current or
reasonably anticipated exposure
assumptions at any given facility. For
example, risk to ecologic receptors is
not accounted for in the action levels
included in the 1990 proposal. If •
ecologic risks are a concern at a given
corrective action facility, program
implementors and facility owners/
operators should consider developing
facility-specific action levels to account
for ecologic risk issues.
EPA has found that action levels are
most beneficial when they are available
during the planning stages of site
investigations. In the 1990 proposal, the
Agency indicated that it would be
advantageous to include action levels in
corrective action permits to give facility
owners/operators and the public an
indication of contaminant
concentrations that would likely trigger
additional study or corrective measures.
At the same time, the Agency
recognized that, in some cases,
including action levels in corrective
action permits would not be necessary
(e.g., when available information
establishes the need for an analysis of
remedial alternatives). Program
implementors and facility owners/
operators have the flexibility to
determine whether or not to include
action levels in corrective action
permits and orders.
In Section V of today's Notice, EPA
requests comments on the use of action
levels and the role of the Federal
government in promoting national'
consistency by developing, maintaining,'
and distributing action levels (as well as
media cleanup levels) or standardized
protocols for developing site-specific
levels.
/. Integration With the Evaluation of
Remedial Alternatives. At most Sites,
likely remedial strategies will become
clear during the initial site assessment
and subsequent site characterization. To
expedite the corrective action process,
EPA encourages program implementors
and facility owners/operators to focus
data gathering during site
characterization on information needed
to support plausible remedies. This
strategy is discussed more fully in
Section III.C.4.a of today's Notice.
3. Interim Actions
Since the 1990 proposal, EPA has
increasingly emphasized the importance
of interim actions and site stabilization
in the corrective action program. Many
cleanup programs, including RCRA and
CERCLA, recognize the need for interim
actions while site characterization is
underway or before a final remedy is
selected. Typically, interim actions are
used to control or abate ongoing risks to
human health or the environment in
advance of final remedy selection. For
example, actual or potential
contamination of drinking water
supplies might necessitate an interim
action to provide alternative drinking
water sources. Similarly, hazardous
waste or constituents stored in poorly
maintained or damaged drums or tanks
might require an interim action to
stabilize (e.g., by overpacking) or
remove the damaged containers. The
concept of interim actions is especially
appropriate to facilities subject to RCRA
corrective action, since many facilities
in the corrective action universe are
operating industrial facilities, where a
final facility cleanup might not be
completed for many years.
One of EPA's overriding goals in
managing the corrective action program
is to expedite risk reduction by
emphasizing early implementation of
interim actions to control or minimize
ongoing threats to human health or the
environment. The importance of interim
actions at RCRA corrective action
facilities is further emphasized in the •
Agency's Stabilization Initiative
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19447
discussed in Section II.E.l of today's
Notice.
Interim actions at RCRA facilities can
include a wide range of activities such
as source removal, installation of a
pump and treat system, and
institutional controls. In accordance
with the Stabilization Initiative, interim
actions should be employed as early in
the corrective action process as possible,
consistent with the environmental
objective and priorities for the site; as
further information is collected,
program implementors and facility
owners/operators should continue to
look for opportunities to conduct
additional interim actions. Generally,
interim actions should be compatible
with, or a component of, the final
remedy.
4. Evaluation of Remedial Alternatives
Contamination at most cleanup sites
can be addressed using a number of
remedial alternatives, each of which
would present advantages and
disadvantages. Before choosing a
cleanup approach, program
implementors and facility owners/
operators will typically analyze a range
of alternatives and evaluate their
advantages and disadvantages relative to
site-specific conditions. In the CERCLA
program the identification and
evaluation of remedial alternatives is
referred to as the Feasibility Study or
FS; in the RCRA corrective action
program, the Corrective Measures Study
or CMS.
The purpose of a Corrective Measures
Study is to identify and evaluate
potential remedial alternatives for
facilities undergoing corrective action.
During the CMS, program implementors
and facility owners/operators typically
evaluate one or more remedial
alternatives based on site-specific
conditions and select a preferred
remedial alternative as the remedy. The
CMS does not necessarily have to
address all potential remedies for every
corrective action facility. EPA advises
program implementors and facility
owners/operators to focus corrective
measures studies on realistic remedies
and to tailor the scope and substance of
studies to the extent, nature and
complexity of releases and
contamination at any given facility. For
example, some potential remedies
should not be considered because they
are simply implausible. In cases where
EPA has identified a presumptive
remedy (presumptive remedies are
discussed in Section H.F.S.c of today's
Notice), the purpose of the CMS will be
to confirm that the presumptive remedy
is appropriate to facility-specific
conditions. In cases where EPA or a
state is using performance standards or
a similar approach, the Agency might
not require submission or approval of a
formal CMS at all. EPA continues to
emphasize that it does not want studies
to be undertaken simply for the purpose
of completing a perceived step in a
perceived process. While, for a complex
site, review of a full range of remedial
alternatives may be required, at many
sites, the preferred remedial approach
will be apparent early in the cleanup
process and the analysis of remedial
alternatives should be highly focused.
In implementing the corrective action
program, EPA has found a number of
opportunities to significantly increase
the efficiency of corrective measures
studies, as discussed below.
a. Integration With Site
Characterization. EPA continues to
emphasize that the components of
corrective action (e.g., release
assessment, RFI, CMS) should not be
viewed as isolated steps in a linear
process. In the Agency's experience, it
is generally more efficient to focus data
collection on information needed to
support an appropriate, imp lamentable
remedy than to attempt to complete
separate evaluations at each step. As
remedial alternatives are considered
during a CMS, the facility owner/
operator might find additional site
characterization necessary. Similarly,
the earlier in the corrective action
process potential remedies can be
identified, the more effectively
information gathering can be focused.
For example, in a situation where the
contamination being addressed involves
a large mixed fill landfill, the remedial
alternatives will likely involve physical
and institutional controls. These
alternatives should be identified early in
the RFI enabling the facility owner/
operator to tailor the RFI toward
collection of information necessary to
support development of appropriate
physical controls. In other cases, a
facility may have relatively limited soil
contamination or old solid waste
management units which the facility
owner/operator desires to remove all
contaminated material for treatment and
disposal off-site. In these cases, the RFI
might be focused on removal options
and analysis of other alternatives would
not be necessary. Other benefits
associated with combination of the RFI
and CMS can include cost savings :
associated with consolidation of reports
and other documents, and time savings
associated with concurrent rather than
sequential analysis. The 1990 proposal
and the 1990 RCRA Corrective Action
Plan discuss other situations where the
CMS could be combined with site
characterization, including:
(1) "Low risk" facilities. These are
facilities where environmental problems
are relatively small and where releases
present minimal exposure concerns.
Such facilities might have limited on-
site soil contamination;
(2) Facilities where removal remedies
have been proposed by the owner/
operator. For example, at a facility
where there is contaminated soil and
the owner/operator proposes to excavate
all the contaminated soil for subsequent
off-site recycling, treatment or disposal;
(3) Facilities with straightforward
remedial solutions or where
presumptive remedies, as discussed in
Section II.F.6.C of today's Notice, can be
applied. These are facilities where
standard engineering solutions, which
have proven .effective in similar
situations, may be appropriately
applied;
(4) Facilities where few remedial
options are available. This includes
situations where there are few
practicable remedial solutions; and,
(5) Facilities where the remedy is
phased.
b. Formal Evaluation Not Always
Necessary. At some facilities the CMS
does not have to be submitted to an
overseeing agency for review and
approval in favor of a performance-
based approach. In these scenarios, the
overseeing agency (e.g., EPA or a starts)
might oversee the facility investigation
to ensure that all releases and potential
releases from the facility are adequately
identified and characterized and that •
adequate remedial goals are developed
for the facility. After the remedial goals
undergo public review and comment
and are approved by the overseeing
agency, the facility owner/operator
would design and implement a remedy
sufficient to meet the remedial goals
without direct agency oversight.
For example, the remedial
investigation at a facility may reveal
widespread groundwater contamination
caused by a release from an old surface
impoundment. The remedial goals for
the facility might be to control the
source contaminating the groundwater,
contain the groundwater plume, and
restore groundwater quality to specified
cleanup levels. Media cleanup levels
would be included in the remedial goal
and the facility owner/operator would -
be required to conduct remedial
activities in a manner which involves
the affected public in a meaningful and
timely way. The facility owner/operator
would then design and implement a
remedy (and a public participation *
plan). In this example, while the facility
owner/operator might analyze a number
of alternatives, the overseeing agency
would not ordinarily second-guess the
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remedial choice (since the agency had
been involved in developing the
performance standards). Instead, the
overseeing agency would monitor
compliance with the remedial goals. If
the remedial goals or milestones were
not met in the required performance
period, additional remediation measures
would likely be required. EPA favors
performance-based approaches provided
that the remedial goals for the facility
are clear, the oversight during remedy
implementation is appropriate to the
complexity of the facility-specific
circumstances, and the public is
substantively involved. Many states, in
particular the State of Georgia, attribute
the success of their corrective action
programs, in part, to eliminating Agency
review and approval of the CMS as a
step in the corrective action process in
favor of a performance-based approach.
c. Facility Owner/Operator Should
Recommend a Preferred Remedy. EPA
emphasizes that it expects facility
owners/operators to develop and
recommend remedies or remedy
performance standards (if a
performance-based model is being
used), including proposed media
cleanup levels, points of compliance
and compliance time frames, that
address the proposed threshold criteria
and present an advantageous
combination of the proposed balancing
criteria. During remedy selection, EPA
will consider the facility owner/
operator's preferred remedial
alternative, other remedial alternatives
and public comment. Although it is the
responsibility of the facility owner/
operator to develop and recommend a
preferred remedial alternative or remedy
performance standard, the Agency can
reject any alternative and require further
analysis or prescribe a different
remedial alternative or remedy
performance standard.
5. Remedy Selection
Remedies should be protective of
human health and the environment, and
maintain protection over time. In
meeting this remedial goal, EPA has
learned that certain combinations of
facility-specific circumstances are often
addressed by similar approaches. Based
on this experience, the Agency,has
developed certain expectations for
remedies. Remedy expectations are not
binding requirements; rather, they
reflect collective experience and guide
development of remedial alternatives.
For example, the fact thatremedies for
highly mobile contaminants often
involve some form of treatment does not
preclude a non-treatment option;
however, expectations developed from
past experience can focus program
implementors and facility owners/
operators on the more generally
acceptable remedial options. In effect,
the remedial expectations allow
program implementors and facility
owners/operators to profit from prior
EPA experience and focus resources on
the most plausible remedial alternatives.
Many of these expectations were first
articulated in the discussion of remedy
selection at CERCLA sites in the
National Oil and Hazardous Substances
Pollution Contingency Plan (NCP) (40
CFR 430(a)(l)). The remedial
expectations discussed below express
EPA's experiences to date given our
current remedial goals and remedy
selection strategies; however, the
Agency recognizes that issues associated
with remedial goals and strategies are
currently the subject of considerable
public debate, i.e., in Congressional
discussions of Superfund
reauthorization. Since EPA is
committed to consistency of results
between the RCRA corrective action and
Superfund remedial programs, any
revisions to the CERCLA remedial
expectations or the CERCLA remedy
selection process will likely be
incorporated into RCRA corrective
action. Currently, EPA has the following
remedial expectations:
(a) EPA expects to use treatment to
address the principal threats posed by a,
site whenever practicable and cost-
effective.5 Contamination that
represents principal threats for which
treatment is most likely to be
appropriate includes contamination that
is highly toxic, highly mobile, or cannot
be reliably contained, and that would
present a significant risk to human
health and the environment should
exposure occur.
(b) EPA expects to use engineering
controls, such as containment, for
wastes and contaminated media which-
can be reliably contained, pose
relatively low long-term threats, or for
which treatment is impracticable.
(c) EPA expects to use a combination
of methods (e.g.; treatment, engineering
and institutional controls), as
appropriate, to achieve protection of
human health and the environment.
(d) EPA expects to use institutional
controls such as water and land use
restrictions primarily to supplement
engineering controls as appropriate for
short- and long-term management to •
prevent or limit exposure to hazardous
wastes and constituents. EPA does not
expect that institutional controls will
often be the sole remedial action!
5 The term "cost-effective" does not necessarily
imply least costly.
(e) EPA expects to consider using
innovative technology when such
technology offers the potential for
comparable or superior treatment
performance or implementability, less
adverse impact, or lower costs for
acceptable levels of performance when
compared to more conventional
technologies.
(f) EPA expects to return usable
groundwaters to their maximum
beneficial uses wherever practicable,
within a time frame that is reasonable
given the particular circumstances of
the site. When restoration of
ground water is not practicable, EPA
expects to prevent or minimize further •
migration of-the plume, prevent
exposure to the contaminated
groundwater and evaluate further risk
reduction. EPA also expects to control
or eliminate surface and subsurface
sources of groundwater contamination.
(g) EPA expects to remediate
contaminated soils as necessary to
prevent or limit direct exposure of:
human and environmental receptors
and prevent the transfer of unacceptable
concentrations of contaminants (e.g., via
leaching, runoff or air borne emissions)
from soils, including subsurface soils, to
other media.
In addition to experiences recorded in
the remedial expectations, EPA
routinely encounters a number of issues
associated with remedy selection, as . .
discussed below.
a. Balancing Treatment and Exposure
Control. Risk is a function of toxicity
and exposure; therefore, risk reduction
can be accomplished by reducing
toxicity (e.g., through treatment to
reduce toxicity, mobility or volume)
and/or preventing exposure (e.g.,
through engineering and institutional
controls). Program implementors and
facility owners/operators often struggle
to find an appropriate balance between
these approaches. - - . • •
While preventing exposure may
appear to be the most direct near-term
means of reducing risk, permanent
reduction of the toxicity, mobility and/
or volume of contaminated material
might be the most cost-effective means
of reducing risk over time. For example,
at a facility where the remedy relies, in
part, on engineering controls to prevent
exposure there could be: associated
operation and maintenance costs; the
need to maintain the RCRA facility
permit for the life of the remedy;
increased Agency involvement to
monitor the continued effectiveness of
the remedy; and, need for institutional
controls. When treatment to reduce
toxicity, mobility or volume is chosen,
EPA does not necessarily expect the
remedy to involve treatment alone. For
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example, highly toxic contaminated
material could be treated so that the
concentrations of hazardous
constituents, while still above media
cleanup levels, would support a reliable
containment remedy.
The exact balance between reduction
in toxicity, mobility or volume and
exposure control will best be
established on a case-by-case basis in
consideration of site-specific conditions;
however, all things being equal,
permanent reductions in toxicity,
mobility or volume are preferred to
exposure control because it is protective
of human health and the environment in
the long-term and removes the risks
associated with the potential failure of
engineering or institutional controls.
Program implementors and facility
owners/operators are cautioned against
too great a reliance on exposure control
remedies when alternatives which
include permanent reduction in
toxicity, mobility or volume are
available, affordable and practical.
Additional information on the balance
between toxicity reduction and
exposure control is available in "A
Guide to Principal Threat and Low
Level Threat Wastes," Superfund
Publication 9380.3-06FS, November
1991, which is available in the docket
for today's Notice.
b. Remedy Selection Criteria. The
1990 proposal, like the Superfund NCP,
established a two-phased evaluation for
remedy selection. During the first phase,
potential remedies are screened to see if
they meet "threshold criteria"; remedies
which meet the threshold criteria are
then evaluated using various "balancing
criteria" to identify the remedy that
provides the best relative combination
of attributes. While the GERCLA remedy
selection criteria are not identical to the
RCRA corrective action criteria
proposed in 1990, they address the same
types of considerations and should
generally result in similar remedies
when applied to similar site-specific
conditions.
The 1990 proposal identified four
remedy threshold criteria-and five
balancing criteria. The four threshold
criteria proposed in 1990 were that all
remedies must: (1) be protective of
human health and the environment; (2)
attain media cleanup standards; (3)
control the source(s) of releases so as to
reduce or eliminate, to the extent
practicable, further releases of
hazardous waste (including hazardous
constituents) that might pose threats to
human health and the environment; and
(4) comply with applicable standards for
waste management. EPA believes these
threshold criteria remain appropriate as
general goals for cleanup and screening
tools for potential remedies.
There has been some confusion
regarding the proposed threshold
criterion that remedies attain media
cleanup standards. Attaining media
cleanup standards does not necessarily
entail removal or treatment of all
contaminated material above specific
constituent concentrations. Depending
on the site-specific circumstances,
remedies may attain media cleanup
standards through various combinations
of removal, treatment, engineering and
institutional controls. For example, in
situations where waste is left in place in
an engineered landfill or under a, cap,
media cleanup standards would be
attained, in part, through long-term
engineering and institutional controls.
The 1990 proposal identified five
balancing criteria for choosing among
remedies that meet the threshold
criteria. The five balancing criteria
proposed in 1990 were: (1) Long-term
reliability and effectiveness; (2)
reduction of toxicity, mobility or
volume of wastes; (3) short-term
effectiveness; (4) implementability; and
(5) cost. The balancing criteria were not
ranked in terms of Relative importance.
As discussed in the 1990 proposal, any
one of the balancing criteria might prove
to be the most important at a particular
site. For example, a remedy at a certain
site might be protective in the short
term but not necessarily reliable in the
long term (e.g., capping of a highly
contaminated area). In this case, the
need for long term reliability and the
potential for long-term operation and
maintenance costs would tend to point
toward a remedy which presented a
more advantageous combination of the
balancing criteria (e.g., removal or
treatment of hot spots, capping residual ,
contamination, and implementing an
institutional control).
The proposed balancing criterion of
cost has caused some confusion. Cost
can and should be considered when
choosing among remedies which meet
the threshold criteria. As discussed in
the 1990 proposal, EPA believes that
many potential remedies will meet all
the threshold criteria. In that situation,
cost becomes an important
consideration in choosing the remedy
which most appropriately addresses the
circumstances at the facility and
provides the most efficient use of
Agency and facility owner/operator
resources. For cost comparisons
between alternatives to be accurate, they
should include capital and operation
and maintenance costs for the
anticipated life of the remedy.
Pending resolution of the 1990
proposal, program implementors and
facility owners/operators should use the
threshold and balancing criteria
proposed in 1990 as guidance when
selecting facility-specific remedies;
however, as discussed in Section V of.
today's Notice, EPA is also considering
and requesting comment on a number of
alternatives for corrective action remedy
selection, including focusing on remedy
performance standards. These
alternatives are based, in part, on
innovative approaches already used in
some states and EPA Regions.
c. Media Cleanup Standards. The
term "media cleanup standards"
typically refers to broad cleanup
objectives; it often includes the more
specific concepts of "media cleanup
levels," "points of compliance," and
"compliance time frames." The more
specific term, "media cleanup levels"
typically refers to site- and media-
specific concentrations of hazardous
constituents, developed as part of the
overall cleanup standards for a facility.
Media cleanup standards (and levels)
should reflect the potential risks of the
facility and media in question by
considering the .toxicity of the
constituents of concern, exposure
pathways, and fate and transport
characteristics.
Consistent with the CERCLA program,
in the RCRA corrective action program
EPA intends to clean up sites in a
manner consistent with available,
protective, risk-based media cleanup
standards (e.g., MCLs and state cleanup
standards) or, when such standards do
not exist, to clean up to protective
media cleanup standards developed for
the site in question (e.g., through a site-
specific risk assessment). Both
approaches require a site-specific risk-
based decision. When available media
cleanup standards are used (e.g., MCLs,
state cleanup standards), the
assumptions used to develop the
standardized cleanup values should be
consistent with the site-specific
conditions at the facility in question.
As discussed in the NCP and the 1990
proposal, EPA's risk reduction goal is to
reduce the threat from carcinogenic
contaminants such that, for any
medium, the excess risk of cancer to an
individual exposed over a lifetime
generally falls within a range from 10--6,
in other words, an exposed individual
will have an estimated upperbound
excess probability of developing cancer
of one in one-million, to 10-4, or an
exposed individual will have an
estimated upperbound excess
probability of developing cancer of one
in ten-thousand. For non-carcinogens,
the hazard index should generally not
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exceed one (I).6 Available risk-based
media cleanup standards are considered
protective if they achieve a level of risk
which falls within the 10-« to 10-4 risk
range.
EPA's preference, all things being
equal, is to select remedies that are at
the more protective end of the risk
range. Therefore, program implementors
and facility owners/operators should
generally use 1C)-6 as a point of
departure when developing site-specific
media cleanup standards. Use of 10-6 as
a point of departure does not establish
a strict presumption that all final
cleanups will necessarilyattain that
level of risk reduction. Given the
diversity of the corrective action
universe and the emphasis on •
consideration of site-specific conditions
such as exposure; uncertainty, or
technical limitations, the Agency
expects that other risk reduction goals
may be appropriate at many corrective
action facilities. As discussed in the
1990 proposal, EPA endorses "* * * an
approach [to remedy selection] that
allows a pragmatic and flexible
evaluation of potential remedies at a
facility while still protecting human
health and the environment. This
approach emphasizes the overall goal of
10~6 as the point of departure, while
allowing site or remedy-specific factors,
including reasonable foreseeable future
uses, to enter into the evaluation of'
what is appropriate at a given site."
(See, 55 FR 30826.)
d. Points of Compliance. As proposed
in 1990, the point of compliance (POC)
is the location or locations at which
media cleanup levels are achieved. In
the absence of final corrective action
regulations specifically addressing
points of compliance, program
implementors and facility owners/
operators develop POCs on a site-
specific basis. For air releases, program
implementors and facility owners/
operators have generally used the
location of the person most exposed, or
other specified point(s) of exposure
closer to the source of the release. For
surface water, program implementors
and facility owners/operators have
routinely established the POC at the
point at which releases could enter the
surface water body; if sediments are '
affected by releases to surface water, a
sediment POC is also established. Points
of compliance for soils are generally
6 The hazard index is a measurement of non-
carcinogenic risks. It is calculated by summing two
or more hazard quotients for multiple substances
and/or multiple exposure pathways. A hazard
quotient is the ratio of a single substance exposure
level over a specified time period to a reference
dose for that substance derived from a similar
exposure period.
selected to ensure protection of human
and environmental receptors against
direct exposure and to take into account
protection of other media from cross-
media transfer (e.g., via leaching, runoff
or airborne emissions) of contaminants.
For groundwater, program
implementors and facility owners/
operators generally set the POC
throughout the area of contaminated
groundwater or, when waste is left in
place, at and beyond the boundary of
the waste management area
encompassing the original source(s) of
groundwater contamination. This
approach to the groundwater POC is
generally referred to as the "throughout
the plume/unit boundary POC." This
approach is consistent with the
groundwater POC described in the
preamble to the Superfund program's
National Oil and Hazardous Waste
Contingency Plan (NCP, pages 8713 and
8753, Federal Register March 8,1990).
EPA recommends consideration of the
following factors when developing a
site-specific groundwater POC:
proximity of sources of contamination;
technical practicability of groundwater
remediation; vulnerability of the
groundwater and its possible uses; and,
exposure and likelihood of exposure
and similar considerations.
In 1990, EPA proposed specific POCs
for groundwater, air, surface water, and
soil. These proposals, especially the
proposed POC for groundwater,
generated a substantial number of
comments. Developing site-specific
points of compliance generally
continues to be an area of discussion
and debate. In Section V.E.2 of today's
Notice, EPA requests additional
comment regarding POCs for corrective
action.
e. Compliance Time Frame. The
compliance time frame is the time
period and schedule according to which
corrective actions are implemented. In
the 1990 proposal, EPA expressed a
preference for the expeditious
stabilization of releases, followed by
timely completion of corrective actions
. and full restoration of contaminated
media; however, a number of factors
may influence the time frame within
which media cleanup standards are
attained, including: the extent and
nature of contamination at the facility;
risks to human health and the
environment before and during remedy
implementation; practical capabilities of
remedial technologies; the availability
of treatment or disposal options; and,
the desirability of utilizing emerging
technologies.
Remedy implementation schedules
developed at the time of remedy
selection should, to the extent possible,
specify the compliance time frame;
however EPA recognizes that
uncertainties associated with
remediation may make it impossible to
specify when a remedy must be
completed. For example, due to
complexities associated with
contaminant occurrence in the .
subsurface and with groundwater
remediation in general, the time needed
to remediate groundwater at some sites
cannot be accurately predicted. In these
circumstances, the Agency recommends
the use of performance measures or
milestones monitored over time to track
progress toward attaining remedial
goals. These performance measures
should be specified in the remedy
implementation plans or performance
standards. In cases where it is not
practical to determine a precise
compliance time frame, estimated
compliance time frames may be used to
help evaluate remedial alternatives and
the technical practicability of site-
specific remedial goals.
EPA emphasizes that, at many sites,
the primary focus should be on near-
term stabilization of releases. At these
sites, it may be appropriate to focus the
compliance time frame and corrective
measures implementation schedule on
the stabilization action; the remaining
compliance time frame and corrective
measures implementation schedule (if
any are necessary) could then be
developed during selection of the
facility-wide remedy.
/. Site-Specific Risk Assessments.
EPA's strategy for corrective action
implementation incorporates risk-based
decision-making throughout the
corrective action process. At some sites,
risk-based decisions can be made using
standardized risk considerations, such
as standardized exposure assumptions.
At other sites, a site-specific risk
assessment will be desirable. When a
site-specific risk assessment is needed,
EPA, in some cases, has directed the
facility owner/operator to perform the
risk assessment; in other cases EPA has
chosen to do the risk assessment itself
based on data submitted by the owner/
operator. Site-specific risk assessments
conducted at RCRA facilities may be
based on CERCLA's extensive guidance
in this area (e.g., "Risk Assessment
Guidance for Superfund," Volumes I
and II, Interim final EPA/540/1-89/001
and 002, December 1989 and March
1989). Additional information on the
Agency's approach to risk-based
decision-making is available in the
Agency's recent memorandum on risk
characterization. (See, 3/21/95
memorandum from Carol Browner,
"EPA Risk Characterization Program" in
the docket for today's Notice.) The
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19451
Administrator stated, "* * * we must
improve the way in which, we .
characterize and communicate
environmental (human health and
ecologic) risk." The key values
conveyed in the 1995 Risk
Characterization guidance are: (1)
"transparency" in the decision making
process (i.e., full and open discussion of
supporting analyses, uncertainties, •
assumptions, etc.); (2) "clarity" in
communication within the Agency and
the public regarding environmental risk
and the uncertainties associated with
our assessments; (3) consistency; and (4)
reasonableness in our use of
scientifically defensible risk
assessments. It is EPA's policy to
incorporate these values in all risk-
based considerations, including site-
specific risk assessments at corrective
action facilities.
g. Ecological Risk. Corrective action
remedies must protect both human
health and the environment. Some form
or ecological assessment will generally
be necessary at all corrective action
facilities; at some corrective action
facilities, a formal ecological risk
assessment will be necessary. When an
ecological risk assessment is needed,
EPA, in some cases, has directed the
facility owner/operator to perform the
risk assessment; in other cases EPA has
chosen to do the risk assessment itself
based on data submitted by the owner/
operator. The use of ecological risk
assessment is an important component
of the corrective action program. Often,
environmental receptors are sensitive to
contamination at lower concentrations
than humans are, and the exposure is
usually longer and more intense. In
order to fulfill EPA's mandate, the
program must be implemented in a
manner that is protective of both human
health and the environment. This
includes the selection of media cleanup
standards and the implementation of
remedial activities that are protective or
ecologic receptors. In the process of
selecting stabilization measures or
implementing final remedies, program
implementors and facility owner/
operators should be aware of how
different remedial activities may affect
ecological systems, especially sensitive
populations, either on or adjacent to the
facility.
Ecological risk assessment may be
oven more important when non-
residential land use assumptions are
used. Action or cleanup levels based on
human health exposure scenarios or
land use assumptions might not be
protective of ecological receptors;
therefore, consideration of the
ecological exposure pathway may, in
certain settings, be the driving factor in •
selection of action or cleanup levels.
CERCLA's National Contingency Plan
(55 FR 8666, March 8,1990) designates
certain key Federal agencies, state
agencies and Indian tribes as natural
resource trustees. Section 300.600 of the
NCP indicates that trustees act on behalf
of the public in regards to protection of
natural resources. Under CERCLA,
trustees should be notified when
contamination threatens natural
resources. As a matter of policy, EPA
recommends that trustees also be
notified when RCRA corrective action
identifies a release that threatens natural
resources. In addition, trustee agencies
have a great deal of experience in their
respective areas and can be used as a
valuable resource when conducting
ecological assessments.
h. Determinations of Technical
Impracticability. Remediation of
contaminated media to a desired media •
cleanup standard can, in certain
situations, be technically impracticable.
Congress formally recognized technical .
impracticability (TI) in the CERCLA
statute and EPA incorporated the
concept in the National Contingency
Plan and the 1990 Subpart S proposal
(proposed 40 CFR 264.525(d) and
264.531).
Technical impracticability decisions
may be made for any medium; however,
contaminated groundwater has received
in the most Tl-related attention. The
single greatest cause for technical
impracticability determinations during
groundwater restoration has been the
presence of dense non-aqueous phase
liquids (DNAPLs).7 The Superfund
program estimates that DNAPLs are
likely present at approximately 60
percent of NPL sites. While EPA has not
conducted an overall assessment of the
presence of DNAPLs at RCRA facilities,
it believes the percentage of DNAPLs at
high priority corrective action facilities
is likely comparable to the Superfund
estimate for NPL sites. To provide a
framework for addressing technical
impracticability, the Agency issued
^"Guidance for Evaluating the Technical
Impracticability for Ground-Water
Restoration" (EPA/540-R-93-080). EPA
encourages program implementors and
facility owner/operators to refer to this
guidance for a more detailed description
of technical impracticability and a
7 Liquid contaminants that do not readily dissolve
in water are known as non-aqueous phase liquids
(NAPLs). NAPLs are divided into two classes: light
NAPLS (LNAPLs), such as gasoline, are less dense
than water; dense NAPLs (DNAPLs), such as the
common solvent trichloroethylene, are more dense
than water. NAPLs in the subsurface can cause
long-term groundwater contamination, can be
difficult to locate and, in many circumstances,
technically impracticable to remove.
discussion of related issues, including:
a description of DNAPLs and why they
are difficult to remediate; factors to
consider when making a technical
impracticability determination; and,
appropriate and practicable remedial .
options in situations where complete
restoration is technically impracticable. .
The possibility that certain remedies
may be technically impracticable should
be considered throughout the • , '
remediation process—from the early'
stages of developing a conceptual site
model through all stages remedy
implementation. When possible,
determinations of technical
impracticability should be made:early in
the remediation process and included, in
RCRA corrective action remedial
decision documents (permits and
orders). In some cases, program
implementors and facility owner/
operators might not have enough
information to justify a determination of
technical impracticability at the time of
the site characterization or, even, when •
the remedy is selected. At the same
time, there may be strong indications
that restoration of a particular medium
will be difficult and may prove
technically impracticable (e.g.,
complicated groundwater remedies). In
such situations, program implementors
and facility owner/operators may
choose not to establish a fixed media
cleanup level, point of compliance or
compliance time-frame, since achieving
full restoration may prove technically
impracticable. Instead, the remedy
might proceed using interim goals and
performance measures which could be
revisited as more information became
available. To avoid creating
unrealistically high remedial
expectations in these situations, the
corrective action permit or order should
discuss the possibility that full
restoration of a particular medium may
prove technically impracticable.
By recognizing technical
impracticability, EPA is not in any way
scaling back the general goal of
returning contaminated groundwater to
beneficial uses. Where technical
impracticability is determined, the
Agency would expect to require an
alternative remedial strategy that is: (1)
technically practicable; (2) consistent ,
with the overall objectives of the
remedy; and (3) controls the source(s) of
contamination, and human and
environmental exposures. A
determination of TI does not release a
facility owner/operator from corrective
action obligations.
i. Natural Attenuation. EPA's three
major remedial programs (i.e.,
Superfund, RCRA Corrective Action
Program, and the Underground Storage
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Tank Program) recognize that natural
attenuation, in certain circumstances,
can be an acceptable component of •
remedial actions for contaminated
groundwater. As discussed in the NCP,
a natural attenuation remedy uses
natural processes such as
biodegradation, dispersion, dilution,.
and/or adsorption to achieve remedial
goals. (See, 55 FR 8734, March 8,1990.)
Natural attenuation remedies are not
"no action" remedies. Natural
attenuation should be evaluated, where
it might be applicable, along with and
in a manner similar to other potential
remedial approaches. In some cases, •
natural attenuation might be only one
aspect of an overall approach to
achieving remedial goals. As in any
other remedial approach, a proposed
remedy involving natural attenuation, •
will have to be protective of human
health and the environment and satisfy
remedy selection criteria. Program
implementors and facility owner/
operators should provide a complete
description of natural attenuation
remedies and emphasize that, by
approving a natural attenuation remedy,
an overseeing agency is not allowing a
responsible party to avoid its remedial
obligations. Remedies involving natural
attenuation should include: a thorough
site characterization; source control or
removal where appropriate;
documentation or evidence of
attenuation processes and the ability of
these processes to achieve remedial
objectives; an appropriate long-term
monitoring plan; and, in certain
circumstances, a contingency plan for a
more active remedial measure (e.g.,
pumping).
;'. Land Use. As discussed in the 1990
proposal, EPA's policy is that current
and reasonable expected future land use
and corresponding exposure scenarios
should be considered in both the
selection and timing of remedial-,
actions. In the 1990 proposal, the
Agency stated, "* * * contaminated
soil at an industrial site might be
cleaned up to be sufficiently protective
for industrial use but not residential
use, as long as there is reasonable
certainty that the site would remain
industrial." (See, 55 FR 30803.)
Recently, EPA issued additional
guidance on incorporating reasonable
future land use assumptions in remedial
decision making in the guidance
document "Land Use in the CERCLA
Remedy Selection Process" (OSWER
Directive No. 9355.7-04, May 25,1995;
see Section H.F.S.a of today's Notice).
Reasonable future land use
assumptions should be assessed when
developing remedial goals for any given
facility and used to focus all aspects of
the corrective action process; however,
EPA cautions against automatically
restricting assumptions of future land
use to extrapolation of the current use
or relying only on designated zoning or
industrial use codes to establish land
use assumptions. A large industrial
facility could include office areas, •
parking areas, a child care area or on-
site residences. Highly industrial sites
are sometimes located adjacent to
residential properties. All of these
factors should be considered when
making land use assumptions.
EPA'recognizes the complexities
associated with developing reasonably
anticipated land use assumptions and
the need for caution when basing
remedial decisions on assumptions of
future use; however, the Agency
believes that non-residential land use
assumptions are appropriate for many
corrective action facilities. When
remedies based on non-residential
exposure scenarios involve a
combination of treatment and
engineering or institutional controls,
program implementors and facility
owner/operators should use currently
available tools to ensure that the remedy
continues to achieve its objectives over
time and the land use assumptions
remain valid. For example, many
implementing agencies allow facility
owner/operators to use institutional
controls to ensure that exposure
scenarios at the facility remain
consistent with those used at the time
of remedy selection.
EPA requests comments on these and
other land use issues in Section V.E.I of
today's Notice.
6. Remedy Implementation
Remedy implementation typically
involves detailed remedy design,
remedy construction, remedy operation
and maintenance, and remedy
completion. In the CERCLA program,
remedy implementation is known as
"remedial design/remedial action,
operation and maintenance"; in the
corrective action program, it is known
as "corrective measures
implementation" or CMI. As proposed
in 1990, corrective measures
implementation is generally conducted
in accordance with an approved CMI
plan. Components of corrective
measures implementation might
include: conceptual design, operation
and maintenance, intermediate design
plans and specifications, final design
plans and specifications, construction
work plan, construction completion
report, corrective measure completion
report, health and safety plan, public
participation plan and progress reports;
however, in many cases, only a subset
of these documents will be required for
individual corrective measures
implementations.
EPA has found a number of useful
strategies for improving the efficiency of
corrective measures implementation, as
discussed below.
a. Performance Based Corrective
Measures Implementation. Similar to
the performance-based approach
discussed for evaluation of remedial
alternatives in Section III.C.4.b of
today's Notice, some states and EPA
regions have developed a performance-
based approach to corrective measures
implementation. When using a
performance-based approach to
corrective measures implementation,
the overseeing agency generally works
with the facility owner/operator during
remedy selection to develop remedial
goals for the facility. Following public
review and comment and approval of a
remedy and remedial goals, the facility
owner/operator is tasked with designing
and implementing the chosen remedy in
a manner which would meet the
remedial goals. For example, if the
remedy chosen for a particular facility
included some form of groundwater
treatment, an accompanying remedial
goal might be to achieve hydrologic
containment of the groundwater plume
and continuous reduction of the
concentrations of hazardous
constituents. While the overseeing
agency would review and approve the
remedy and remedial goals and be
involved in developing monitoring
systems or other means of measuring
compliance with the remedial goals, it
would not necessarily be involved with
the details of remedy design,
construction and implementation.
Rather, the overseeing agency would
monitor compliance with the remedy
implementation milestones and
remedial goals and become involved in
the details of remedy design and
implementation only if a facility owner/
operator was having trouble meeting the
remedial goals. A performance-based
approach to remedy implementation
emphasizes that the facility owner/
operator, not the overseeing agency, is
responsible for designing and
implementing a successful remedy.
b. Performance Monitoring.
Evaluation of the performance of a
chosen remedy is necessary to measure
progress toward remedial goals and
ensure that remedial objectives are
achieved. Program implementors and
facility owner/operators have
recognized that appropriately designed
performance monitoring programs can
maximize efficiency and cost-
effectiveness and ensure protection of
potential human or ecologic receptors.
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Properly designed performance
monitoring programs are especially
important for groundwater remediation
because the concentration and
distribution of contamination in the
subsurface often change with time.
Likewise, the ability of remediation
systems to prevent migration of
contaminated groundwater can be
influenced by natural and human
factors (e.g., seasonal precipitation or
nearby agricultural groundwater usage).
For groundwater remediation systems,
performance monitoring can assess
changes in subsurface conditions so that
the remedy can be modified to ensure
maximum efficiency in terms of both
the location and pumping rate at
individual extraction wells.
Performance monitoring is also a
critical aspect of a remedial alternative
that relies on engineering controls (e.g.,
liners, barrier walls). Poorly designed
monitoring programs for engineered
remedies can potentially fail to detect
releases from the "contained" areas.
While EPA recognizes the importance
of performance monitoring, it also
acknowledges that long-term routines of
sample collection and analysis carry
significant financial burdens. The
Agency encourages program
implementors and facility owner/
operators to design monitoring programs
with effectiveness and efficiency as
fundamental considerations. For
example, due to subsurface
heterogeneities, it may be more effective
and efficient to monitor a greater .
number of discrete locations for a subset
of mobile contaminants, than to monitor
fewer locations for an exhaustive list of
analytical parameters and contaminants.
Properly designed performance
monitoring programs are integral to
remedy success and should be
considered throughout the corrective
action process, including in remedy
selection and design. Detailed guidance
regarding performance monitoring and
designing monitoring programs in
general is available in "RCRA Ground-
Water Monitoring: Draft Technical
Guidance" (EPA/530/R-93/001) and
"Methods for Monitoring.Pump-and-
Treat Performance" (EPA/600/R-94/
123).
c. Completion of Corrective Measures.
Documents specifying corrective
measures implementation should
include methods to determine when
remedial goals have been achieved. For
example, statistical procedures are often
appropriate for determining that
concentrations of hazardous
constituents measured in groundwater
samples meet a remedial goal. Other
remedies might require that certain tests
be undertaken to determine that
engineering standards have been
achieved. Decisions regarding
completion of corrective measures may
be made for the entire facility, for a
portion of the facility,: or for a specified
unit or release. The public and affected
community should be given' an
opportunity to review and comment on
all proposals to complete corrective
measures.
In 1990, EPA proposed that corrective
measures be considered complete based
on a three-part evaluation: the corrective
measure had to have complied with all
media cleanup standards; all required
source control actions would have to be
completed; and all specified procedures
for removal and decontamination of
units, equipment, devices and structures
would have to be complete. In addition
to certifying compliance with the three
criteria, the Agency proposed that the
owner/operator's certification be signed
by an independent registered
professional "skilled in the appropriate
technical discipline(s)." The Agency
chose not to propose that all
certifications be signed by an
independent qualified registered
professional engineer because it
believed that engineering certifications
would not be appropriate in all cases
(e.g., for a remedy largely addressing
groundwater, the Agency believed that
certification by a hydrogeologist might
be more appropriate). In the absence of
final regulations addressing completion
of corrective measures, program
implementors and facility owner/
operators should use the requirements
for completion of corrective measures
proposed in 1990 as guidance when
developing site-specific procedures for
completion of corrective measures. At a
minimum, the public and affected
community should be given notice and
an opportunity to comment before
corrective action implementation is
terminated and a facility is released
from its RCRA obligations.
D. Incorporation of Corrective Action in
RCRA Permits
RCRA Section 3004(u) mandates that
corrective action and schedules of
compliance be required for facilities
seeking a permit, when corrective action
cannot be completed prior to permit
issuance. Approximately half the states
are authorized to implement state RCRA
corrective action programs in lieu of the
Federal program. In authorized states,
the state issues the RCRA permit
including.the corrective action
component (using any of the options
discussed above). In states not
authorized for the corrective action
program, the state typically issues most
of the RCRA permit and EPA issues the
corrective action portion. Although any
given facility may be issued a portion of
its RCRA permit by an authorized state
and a portion by EPA, this should not
lead to the perception that any given
facility has more than one RCRA permit.
Program implementors and facility
owner/operators should remember that
any given facility has only one RCRA
permit; when joint permitting is
necessary, EPA will coordinate
permitting schedules and priorities with
authorized states.
Corrective action requirements and
schedules can be included in RCRA
permits in a number of ways. In some
cases, the RCRA permit will contain
detailed corrective action provisions,
work plan requirements, and schedules.
In other cases, the RCRA permit may
incorporate corrective action
requirements by referencing another
document (e.g., a state or Federal
corrective action order). Finally, in
certain cases, RCRA permits may defer
to corrective action activities being
conducted under another authority or
by another program. In many cases,
incorporation of corrective action
requirements into any given permit will
use a combination of these strategies.
For example, at a corrective action
facility where the facility owner/
operator has chosen to address a subset
of the releases voluntarily, a corrective
action permit could defer action at the
areas being addressed by the voluntary
cleanup while incorporating detailed
corrective action conditions for the
remaining releases or areas of concern.;
E. Corrective Action Orders
Although the 1990 proposal focused
primarily on corrective action under
RCRA permits, EPA and the states
frequently use orders to initiate or
oversee corrective actions. EPA intends
for equivalent environmental results to
be achieved whether corrective action
requirements are dictated in an order or
a permit. As a matter of EPA policy, the
substantive corrective action
requirements and public participation
requirements imposed under either
mechanism are generally the same.
RCRA, as amended by HSWA,
includes several enforcement authorities
which can be used to issue corrective
action orders. The most commonly used
authority is RCRA section 3008(h).
EPA's longstanding interpretation is that
corrective action may be required under
RCRA section 3008(h)'at facilities which
have or should have had interim status,
as well as some facilities that had
interim status at one time but no longer
do (e.g., facilities that have lost interim
status under RCRA interim status
section 3005(e)(2) and facilities which
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have clean closed under interim status),
or have failed to properly obtain interim
status. In addition, die 1990 proposal
explained that issuance of a permit does
not automatically terminate the
effectiveness of a previously issued
3008(h) order.
Other enforcement authorities which
can be used to issue corrective action
orders include RCRA sections 3013 and
7003. RCRA section 7003 provides EPA
the authority to take enforcement
actions to compel corrective action
where solid or hazardous waste may
present an imminent and substantial
endangerment to human health or the
environment. RCRA section 3013
provides EPA the authority to require
investigations and studies where the
presence or release of hazardous waste
may present a substantial hazard to
human health or the environment. All
corrective action orders may be issued
unilaterally by the Agency or as consent
agreements between the respondent and
the Agency.
F. Public Participation and
Environmental Justice
EPA is committed to providing
meaningful public participation in all
aspects of the RCRA program, including
RCRA corrective action. In 1993, the
Agency released a detailed guidance
manual on public participation (RCRA
Public Involvement Manual, EPA 530-
R-93-006). EPA followed this guidance
in December 1995 with the RCRA
Expanded Public Participation rule (60
FR 63417, December 11,1995). EPA is
also committed to the principles of
environmental justice and equitable
public participation. One of the
Agency's central goals in the RCRA
program is to provide equal access to
information and an equal opportunity to
participate. EPA continues to regard
public participation as an important
activity that empowers all communities,
including minority and low-income
communities, to become actively
involved in local waste management
activities. EPA strives to provide
adequate public participation
opportunities to all communities,
putting forth additional effort, where
appropriate, to reach communities that
have not been involved in the past.
When corrective action is part of the
RCRA permitting process, it follows the
procedural requirements set forth in 40
CFR Parts 124 and 270. Under these
requirements, the corrective action
provisions in any permit application are
available for public review throughout
the permitting process and the public
can comment on them at the draft
permit stage.
The RCRA Expanded Public
Participation rule creates more
opportunities for public participation in
the RCRA permit process.8 Additional
opportunities of public participation
include: (1) A prospective applicant
must advertise and hold an informal
public meeting before submitting an
application for a RCRA permit; (2) the
permitting Agency must mail a notice to
the facility mailing list when the facility
submits its permit application, telling
members of the public where they can
examine the application during Agency
review; and (3) giving the permitting
Agency the authority to require a facility
owner/operator to set up an information
repository at any time during the
permitting process or the permit life.
EPA anticipates that these provisions,
combined with existing public
participation requirements, will provide
community members widi significant
opportunities for early input and access
to information.
In addition to title new requirements
in the RCRA public participation rule,
EPA is using guidance to help, facility
owner/operators meet the Agency's
public participation goals. In the
preamble to the RCRA Expanded Public
Participation rule, EPA encourages
agencies and facilities to use all
reasonable means to ensure equal
opportunities for participation and
equal access to information. These
means may include, but are notlimited
to, multilingual notices and fact sheets,
as well as translators, in areas where the
affected community contains significant
numbers of people who do not speak
English as a first language. The Agency
expects all those involved in
implementing corrective action to make
good faith efforts to meet these
objectives in all permitting processes,
including corrective action. In the near
future, EPA will issue further guidance
to assist facilities and permitting
agencies in providing full and equitable
public participation in corrective action
activities.
EPA's policy is for corrective actions
imposed or overseen using a non-permit
mechanism to have the same level of
public participation as that associated
with permits. Although EPA typically
has less control over public
8 The RCRA public participation rule is generally
effective only in states which have amended their
authorized hazardous waste programs to adopt the
public participation rule requirements. At a
minimum, all authorized states are scheduled to
make such amendments by July 1,1997. The
exceptions are the following states and territories
where EPA implements the entire RCRA hazardous
waste program, including the public participation
rule: Alaska, Hawaii, Iowa, Puerto Rico, the
Northern Mariana Islands, the Virgin Islands and
American Samoa.
participation during voluntary
corrective actions, it strongly n.
encourages the use of public
participation and will take into account
the level of public participation
conducted by die facility owner/
operator when evaluating the
acceptability of voluntary actions. In the
absence of final regulations specifically ,
addressing public participation during
corrective action, program
implementors and facility owner/
operators should develop public
participation strategies on a site-specific
basis, consistent with existing public
participation requirements and die
program goal of full, fair, and equitable
public participation. At a minimum,
information regarding corrective action
activities (e.g., RFI and CMS reports)
should be available to the public and
die public should be given an
opportunity to review and comment on
proposed corrective action remedies.
G. Financial Assurance
RCRA section 3004(u) requires diat,
when corrective action cannot be
completed prior to permitting, RCRA
permits contain corrective action
schedules of compliance and financial
assurance. Financial assurance is also
typically included in corrective action
orders. On October 24,1986, EPA
proposed detailed regulations to govern
financial assurance for corrective action
(FACA). The October 1986 proposal
would require owners or operators
seeking an RCRA permit to demonstrate
financial assurance for completion of
remedies. Proposed acceptable
mechanisms included trust funds,
surety bonds guaranteeing performance,
letters of credit, die financial test, and
die corporate guarantee. These are
similar to the mechanisms used to
assure closure and post-closure costs. In
a subsequent memorandum, EPA
clarified that insurance would also be
an acceptable mechanism. In addition to
permissible mechanisms, die October
1986 proposal provided that financial
assurance demonstrations would
ordinarily be required at die tune of
remedy selection (e.g., radier dian at the
time an RFI is required). The proposal
also discussed cost-estimating
procedures, including die periodic
adjustment of cost estimates, for
determining the amounts of required
financial assurance.
In die absence of final rules, program
implementors and facility owner/
operators have the flexibility to tailor
financial responsibility requirements to
facility-specific circumstances. In some
instances, however, industry has
expressed concern widi EPA's
implementation of die financial
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19455
assurance requirements. Representatives
of the regulated community have also
expressed concern that the costs of
providing financial assurance divert
resources from actual cleanup activities,
and that it may he difficult for facility
owners/operators to provide assurance -
for future work while simultaneously
performing current work.
In Section V of today's Notice, EPA
requests comments on these concerns
and on corrective action financial
assurance in general. In the interim,
EPA emphasizes that program
implementors should apply, financial
assurance requirements flexibly and that
their main goal should he to ensure that
remedies proceed expeditiously.
IV. Corrective Action Program
Priorities
In the absence of detailed regulations,
EPA and authorized states have
implemented the corrective action
program based on guidance and policies
developed over the past ten years. EPA
stresses that implementation of the
corrective action requirements must
continue even as the Agency considers
improvements to the corrective action
program. EPA's key goals and
implementation strategies for the
corrective action program are outlined
below.
1. Prioritize the corrective action
universe:
a. Meet the goal of assessing and
prioritizing all hazardous waste
treatment, storage or disposal facilities
by end of FY96.
b. Focus resources on high priority
areas at high priority facilities.
2. Increase the amount of corrective
action:
a. Continue to authorize states for
corrective action.
b. Do not duplicate work already
performed by another Federal or state
program.
c. Encourage alternate state
authorities to conduct analogous work
at RCRA facilities.
d. Utilize the expertise of other
Federal/state agencies where
appropriate (e.g., the U.S. Fish and
Wildlife Service for ecological, wetlands
issues).
e. Increase the number of voluntary
actions, including actions at facilities
without a permit or an order, actions
outside of an existing permit or order,
and actions required under permit or
order but with no Agency oversight.
f. Disinvest or substantially reduce
oversight at lower priority facilities and
high priority facilities where the owner/
operator has proven his or her
capability.
3. Continue to implement the
stabilization initiative:
a. Implement stabilization actions as
early in the process as possible.
b. Phase and focus RFIs to collect any
information needed to implement
stabilization actions.
c. Use existing corrective action
program environmental indicators as
stabilization performance measures.
d. Include meaningful opportunities
for public participation throughout the •
process including during extensive or
long-term stabilization actions.
4. Streamline the corrective action
process where possible:
a. Implement stabilization actions
where possible, then disinvest and
move on to other facilities.
b. Focus RFI data collection and tailor
investigations to specific site
conditions.
c. Use existing pertinent data.
d. Communicate remediation
expectations to facility owners/
operators early in the process.
e. Use innovative technical tools,
including new site characterization
techniques and treatment technologies
when appropriate and beneficial.
f. Avoid unnecessary procedural steps
whenever feasible (e.g., eliminate the
CMS if a desirable remedy can be
identified without one).
g. Use presumptive remedies when
appropriate.
h. Focus on plausible remedies, if a
CMS is necessary.
i. Conduct CMS concurrent with RFI
when possible.
• j. Utilize site-specific performance
standards instead of detailed review of
work plans and remedy designs when
possible.
k. Consider non-residential land use
scenarios when appropriate, while
recognizing that ecological risks may
end up driving media cleanup standards
and remedy designs when using
industrial land use assumptions.
5. Continue to involve the public in
all stages of the corrective action
process.
V. Request for Comment and Data
EPA has the benefit of more than ten
years experience in corrective action
implementation as it begins the Subpart
S Initiative. The Agency is committed to
using this experience to identify,
develop, and implement improvements
to the speed, efficiency, protectiveness
and responsiveness of the corrective
action program as part of the Subpart S
Initiative. Today, EPA requests
information, comments and data to
assist in this process. Some of the topics
discussed in this section raise new
concepts that would likely warrant re-
proposing regulations or developing
new guidance documents; others were
addressed in the 1990 proposal but are :• ~:
included in this section of today's ' • ;:
Notice because the Agency is requesting
additional comment and data at this <
time. EPA requests that commenters be i
as specific as possible in their responses
to today's requests. The Agency is •
particularly interested in comments •
which rely on actual experience in
corrective action implementation and
include specific suggestions for
improvement to the corrective action
program. The Agency also requests that
commenters keep in mind the objectives
of the Subpart S Initiative: create a
consistent, holistic approach to
cleanups at RCRA facilities; establish
protective, practical cleanup
expectations; shift more of the
responsibilities for achieving cleanup
goals to the regulated community; focus
on opportunities to streamline and
reduce costs; and, enhance
opportunities for timely, meaningful
public participation.
EPA emphasizes that its purpose in.
requesting comments at this time is to
take advantage of information and
experience gained through program
implementation to aid in identification
and development of new proposals and
to determine which portions of the 1990
proposal should be promulgated
immediately. EPA will consider all
comments submitted in response to
today's Notice in development of the
Subpart S Initiative. Comments
submitted during the 1990 comment
period will be considered before the
Agency takes final action on any part of •
the 1990 proposal. If EPA later proposes
new corrective action regulations, full
public notice and opportunity for
comment will be provided at that time.
A. General
EPA requests general comment on its
implementation of the corrective action
program to date and on the strategy,
goals and schedule of the Subpart S
Initiative as discussed in Sections II and
IV of today's Notice. The Agency is
especially interested in comments
which include suggestions for specific
improvements to the corrective action
program based on actual
implementation experiences. The
Agency is also interested in examples of
situations where the existing flexibility "
in the corrective action program has f'
been used to expedite facility cleanups '
and in examples of the corrective action \
program providing too much or too little \
flexibility; -Since the Subpart S initiative
includes policy, guidance and rule
development, commenters should
include specific recommendations for
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Federal Register / Vol. 61, No. 85 /Wednesday, May 1, 1996 / Proposed Rules
additional policy or guidance
development and address the. balance
between guidance/policy documents
and regulations (e.g., in 1990 EPA
proposed detailed regulations to address
most aspects of the corrective action
program perhaps some of that
information could be presented more
effectively in policy or guidance
documents).
B. Resolution of the 1990 Proposal
EPA believes there may be elements
of the 1990 proposal which have been
largely non-controversial or for which
the issues have been fully aired;,
accordingly, going through additional
notice and comment on all the issues
raised by the 1990 proposal would not
be necessary or, from an efficiency
standpoint, desirable. On the other
hand, many issues raised by the 1990
proposal have evolved during the past
six years of corrective action
implementation, necessitating
additional opportunities for public
notice and comment. In the discussions
to follow, EPA identifies the issues on
which it believes further public input is
most needed. EPA also requests that
commenters identify any other issues, or
elements of the 1990 proposal, on which
they believe it would be inappropriate
for the Agency to take final action
without re-proposal. At the same time,
EPA requests that commenters identify
specific elements of the 1990 proposal
which could be promulgated without
additional public review and the
advantages or disadvantages of
immediately promulgating such
provisions. Comments submitted in
response to this request will be •
considered part of the administrative
record for the 1990 proposal; however,
commenters should keep in mind that
EPA's intent is not to request new
comment on the specifics of the 1990
• proposal. Comments submitted during
the 1990 comment period will be
considered before the Agency takes final
action on any part of the 1990 proposal.
C. Focusing the Corrective Action
Program on Results
As discussed earlier in today's Notice,
the goal of the corrective action program
is to appropriately stabilize and clean
up RCRA facilities in a timely way. EPA
believes that too often program , •
implementors and facility owners/
operators may lose sight of this goal and
become distracted by processes. On the
other hand, the purpose of a
standardized cleanup process is to
ensure that the program is implemented
consistently and that all facilities
appropriately meet cleanup goals..The
Agency is interested in improving the
corrective action program's focus on
cleanup goals and requests general
comment on the balance between
focusing on results and ensuring an
appropriate level cleanup at all
facilities. In addition, EPA is
specifically interested in comments
which address:
1. Performance Standards
EPA believes that focusing the
corrective action program on
compliance with clear measurable
performance standards rather than a
prescriptive corrective action process
could significantly increase the pace
and quality of corrective action
cleanups. Corrective action performance
standards could be part of a larger
Agency effort to develop results-based
measures. The Government Performance
and Results Act of 1993 (GPRA) requires
EPA to develop and implement results-
based measures across its programs by
1998. For example, the corrective action
environmental indicators (discussed
below), were developed, in part, in
response to the GPRA. The Agency will
consider any performance-based
approaches developed as part of the .
Subpart S Initiative as it develops its
implementation plan for the GPRA.
Reliance on performance standards,
however, can raise a number of
implementation issues. For example,
some stakeholders have suggested that
using performance standards in lieu of
detailed review and approval of work
plans may increase the risk that
individual facility owners/operators
will attempt to obscure or avoid
legitimate corrective action obligations.
Stakeholders have also expressed
concern about potential reductions in
public participation when corrective
action activities occur with reduced
Agency oversight. In addition, some
elements of corrective action may be
difficult to specify as performance
standards, and measuring, documenting
compliance with, and enforcing
performance standards can be difficult
for facility owners/operators and
overseeing agencies. EPA requests
general comment of the use of
performance standards in the corrective
action program. The Agency is
particularly interested in comments
which address the details of
documenting and measuring
compliance with performance standards
and in approaches to ensure adequate
public involvement in performance-
based corrective action activities. In
addition, as discussed in Section II.E.2
of today's Notice, the corrective action
program currently has two
environmental indicators covering
human exposures controlled and
groundwater releases controlled. The
Agency requests comments on the
development of additional
environmental indicators; the Agency is
specifically interested in indicators
targeted at ecological risks.
2. Less Focus on Solid Waste *
Management Units
Use of the solid waste management
unit (SWMU) concept as discussed in
the 1990 proposal has led to numerous
unsuccessful permit appeals. These
permit appeals slow corrective action
implementation and increase the
transaction costs. In certain cases, the
SWMU concept may also deter program
implementors and facility owners/
operators from addressing
contamination on a site-wide basis by
focusing corrective action resources
unit-by-unit instead of more holistically.
In general, EPA believes that a holistic
approach to corrective action, as
opposed to a unit-by-unit approach,
could increase cleanup efficiency and
reduce transaction costs. EPA requests
general comment on focusing the
corrective action program less on
individual solid waste management
units and more on holistic approaches.
The Agency requests that commenters
who support a less unit oriented
corrective action program also address
whether there is any need for
clarifications to the corrective action
jurisdiction language and/or the SWMU
definition in order to use such an
approach. ;
D. Using Non-RCRA Authorities for
Corrective Action
EPA recognizes that there are many
authorities which could be used to
impose or oversee corrective action at
any given facility. Typically, these
authorities include RCRA orders and
permits, state cleanup orders, and
voluntary and independent actions. In
some cases, CERCLA authorities are also
available. The Agency is concerned that,
to date, it has not taken full advantage
of the work of other programs in the
RCRA corrective action program. In
principle, EPA believes that when a
facility is being adequately addressed it
should not matter what authority is
used or what Agency is overseeing the
cleanups. In support of this principle, .
the Agency requests general comment
on the use of non-RCRA authorities to
satisfy corrective action requirements.
Commenters should address the scope
and stringency of non-RCRA authorities
as compared to corrective action
requirements and the ability of non-
RCRA authorities to adequately involve
the public and affected communities.
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19457
The Agency is also specifically
interested in comments which address:
1. State Cleanup Programs
Over half the states have independent
Superfund-like authorities and cleanup
programs; typically, these authorities
and cleanup programs are modeled after
the Federal Superfund program. In
many cases, EPA believes these
independent state authorities are
substantively equivalent in scope and
effect to the RCRA corrective action
program.
The use of state cleanup programs can
offer a number of advantages to state
and regional personnel as well as to the
regulated, environmental and public
interest communities. EPA believes
these advantages include: providing
states the ability to recover the costs of
their program oversight; expanded
opportunities for public participation;
the ability to recover damages
associated with contamination caused
by previous owners or operators who
would likely not be considered liable
under RCRA sections 3004(u) and
3004(v); and, opportunities for
voluntary or independent cleanups.
Many states are already using their
independent Superfund-like authorities
to address releases of hazardous waste
and hazardous constituents at facilities
subject to corrective action, especially at
facilities operating under interim status.
The Agency is interested in exploring
the relationship between independent
state Superfund-like authorities and the
corrective action program and, if
appropriate, providing some level of
assurance that facility owners/operators
who complete cleanups under
independent state authorities have
satisfied RCRA corrective action
obligations.
EPA requests general comment on the
use of state Superfund-like cleanup
programs to compel or conduct
cleanups at facilities subject to RCRA
corrective action. EPA is especially
interested in comments which address:
(a) Scope. Whether the scope and
effect of state Superfund-like cleanup
programs are substantively equivalent to
the scope and effect of the RCRA
corrective action program.
(b) Advantages/Disadvantages.
Advantages and disadvantages which
might be associated with using a state
Superfund-like cleanup authority, rather
than, or in addition to, an RCRA
corrective action authority, at an
operating hazardous waste management
facility.
(c) Compliance with Federal
Standards. The degree to which
compliance with state Superfund-like
authorities should be assumed to meet
corrective action requirements,
including procedural requirements such
as public participation and' permitting.
(d) Coordination with RCRA Permits.
Issues which might be associated with
coordination of state Superfund-like
cleanup orders with RCRA permits and
Federal RCRA corrective action orders.
2. Enhanced Flexibility for States With
EPA-Endorsed CSGWPPs
Current EPA policy is to provide
states greater flexibility for the
management and protection of their •
groundwater resources. This policy was
stated formally in a report titled,
"Protecting the Nation's Ground Water:
EPA's Ground Water Strategy for the
1990s" (Publication 21Z-1020, July
1991). The 1991 report indicated'that, to
the extent authorized by EPA statute
and consistent with Agency program
implementation objectives, EPA will
defer to state policies, priorities, and
standards once a state has developed an
adequate groundwater protection
program. EPA provided a definition of
an adequate state groundwater
protection program in a December 1992
guidance titled, "Final Comprehensive
State Ground Water Protection Program
Guidance" (EPA 100-R-93-001). The
focal point of the 1992 guidance was the
creation of Comprehensive State Ground
Water Protection Programs (CSGWPPs).
As discussed in the 1992 guidance,
CSGWPPs are intended to provide a
more efficient, coherent, and
comprehensive approach to protecting
the nation's groundwater resources.
Developing a CSGWPP is a three-stage
process. First, a state develops a "core
CSGWPP" and submits it to EPA for
review and endorsement. The core
CSGWPP is only required to include one
groundwater protection or remediation
program to demonstrate whether the
state's CSGWPP approach inconsistent
with EPA guidance. Second, after the
core CSGWPP is endorsed by EPA, joint
state-EPA discussions are held to
develop a "multi-year planning
agreement." The multi-year planning
agreement will establish methods and a
schedule for incorporating other state
groundwater programs into the
CSGWPP. Third, at the completion of
the multi-year planning process, all
groundwater protection and remediation
programs conducted in the state,
including Federal remediation
programs, are included in a "fully
integrating CSGWPP."
At the time of today's Notice, EPA has
endorsed 'five state core CSGWPPs;
endorsement of thirteen more is
anticipated by June 1996. EPA is
committed to taking actions within its
own programs to provide states with
endorsed CSGWPPs greater flexibility in
protecting their groundwater resources.
The Agency has recently affirmed this
commitment in, "EPA's Commitments
to Support Comprehensive State Ground
Water Protection Programs" EPA, 100/
R-94/002, date. In the RCRA corrective
action program, EPA committed to
considering state groundwater
classification when making groundwater
use assumptions, selecting groundwater
cleanup levels, and setting cleanup
priorities.
EPA is interested in evaluating
additional opportunities to provide
states with endorsed CSGWPPs
enhanced flexibility in implementation
of the RCRA corrective action program.
EPA requests comments and suggestions
on specific areas of flexibility that
should be available in states with
endorsed CSGWPPs. The Agency is also
interested in suggestions and comments
addressing areas where a distinction in
the amount of flexibility afforded to
states with an EPA-endorsed CSGWPPs
would not be appropriate. For example,
should states with EPA-endorsed
CSGWPPs be provided greater flexibility
than states without endorsed CSGWPPs
in specifying groundwater cleanup
levels, points of compliance or
compliance time-frames based on state
determination of current and future
groundwater uses as recorded in an
EPA-endorsed CSGWPP? Similarly,
should states with EPA-endorsed
CSGWPPs be given additional flexibility
to prioritize oversight resources or
facility-specific corrective action
schedules?
3. Voluntary Corrective Action
EPA requests comments on the use of
state voluntary cleanup programs to
accelerate cleanups at facilities subject
to RCRA corrective action and the roles
of EPA and states in such situations.
EPA is specifically interested in
comments which address:
(a) Use of state voluntary cleanup
programs at RCRA corrective action
facilities. Over half the states have
developed voluntary cleanup programs;
these state voluntary cleanup programs
vary significantly in program design, the
degree to which the state offers
guidance and oversight during the
cleanup process and the review, if any,
of the final cleanup. EPA is interested
in comments which address the use of
state voluntary cleanup programs to
accelerate corrective action at RCRA
facilities including the level of Federal
review or endorsement, if any,
necessary for such programs.
Commenters who support Federal
review or endorsement should address
program criteria (e.g., protectiveness,
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19458 Federal Register / Vol. 61, No. 85 / .Wednesday, May 1, 1996 / Proposed Rules
public participation) that EPA should
use to evaluate state voluntary cleanup
programs used to satisfy corrective
action obligations.
(b) Incentives for private parties to
accelerate corrective actions. EPA
recognizes that many facility owners/
operators who might be inclined to
accelerate corrective action voluntarily
at their facilities may choose not to
because of concerns that the Agency
might "second-guess" the cleanup
conducted and impose additional
requirements. EPA requests comments
on incentives which can be offered to
encourage facility owners/operators to
voluntarily accelerate corrective action
at their facilities including approaches
which could be used to provide comfort
or assurance to facility owners/operators
who complete corrective action under a
state voluntary program. In addition, the
Agency requests comments on the
degree to which accelerated corrective
action should be based on compliance
with general performance standards or,
alternatively, more detailed guidance
documents or regulations. Commenters
who support the use of guidance should
specify whether guidance should be
developed at the state or Federal level,
and list the existing documents that
they believe would be applicable.
(c) Specific site eligibility for
accelerated corrective action. In some
state voluntary cleanup programs, site
eligibility for voluntary cleanup is
limited to sites which are considered
low risk (e.g., sites where the
contamination is not highly
concentrated or highly toxic). EPA
requests comments on site eligibility for
accelerated corrective action and
whether eligibility should in any way be
limited based on the degree of health or
environmental threat present at any
given facility. The Agency is specifically
interested in comments which address
whether, or to what extent, facilities
already under real-time Agency
oversight should be allowed to switch to
an accelerated action pursuant to a state
voluntary cleanup program.
(d) Public participation. EPA believes
that meaningful opportunities for public
participation are essential to a
successful corrective action program; it
requests comments on the specific
opportunities and procedures for public
participation which should be included
in any voluntary corrective action
program.
(e) Review of accelerated actions. EPA
anticipates that some level of review by
the implementing state agency will be
necessary to ensure that accelerated
corrective actions are of sufficient
quality to fulfill corrective action
requirements. The Agency requests
comments on the level of review by the
implementing state agency, if any,
necessary to ensure the quality of
accelerated corrective actions.
Commenters who believe some level of
review is necessary should address the
timing and substance of the review (e.g.,
audits of facility actions and records,
review of milestone documents), and
the role, if any, of EPA in the review
process.
(f) Third-party oversight. Several
states have established cleanup
programs which rely on a licensed
third-party overseer, rather than
implementing agency staff, to ensure
compliance with cleanup requirements
at certain facilities. One state requires
an independent third-party overseer to
monitor compliance with all phases of
the cleanup process at facilities and
certify to the implementing agency
when cleanup at a facility is complete.
EPA believes such approaches may ,
reduce the risks associated with
voluntarily accelerated cleanups and
provide necessary relief to state
regulators. While development of a
third-party oversight system is not
currently under consideration at the
Federal level, EPA requests comments
on the use of state third-party oversight
programs for oversight of cleanups at
facilities subject to RCRA corrective
action. .
4. Corrective Action at Interim Status
Facilities
In 1990, EPA proposed that corrective
action regulations be included in 40
CFR Part 264 (the permitting standards).
The only changes proposed to 40 CFR
Part 265 (the interim status standards)
were to address the need to coordinate
corrective action and closure activities
at closing interim status units and
facilities. EPA's longstanding' view has
been that the requirements to address
facility-wide corrective action at interim
status facilities are consistent with those
for permitted facilities. For this reason,
the Agency requests comments on
whether the corrective action
regulations should be developed under
40 CFR Part 265 as well as under Part
264. The Agency is especially interested
in comments which address the trigger
for initiation of corrective action
activities at interim status facilities, the
degree to which any corrective action
requirements included in 40 CFR Part
265 would be independent or self-
implementing (see, discussion of
independent or self-implementing
corrective action, below), and the
incorporation of corrective action
activities conducted while facilities are
under interim status into final facility
permits. In addition, EPA requests
comments on further modifying the
interim status requirements to include
provisions for the cleanup of releases to
groundwater from regulated units
equivalent to those at 40 CFR 264.100.
5. Independent or Self-Implementing
Corrective Action
EPA believes that the 1990 corrective
action proposal appropriately
emphasized the need for flexibility and
site-specific decisions; however, the
administrative framework proposed in
1990 relies on intensive oversight by a
regulatory agency. In general, corrective
action facility owners/operators initiate
a cleanup only after being compelled to
do so by a regulatory agency (e.g., in an
order or permit). The regulatory agency
then reviews and approves intermediate
steps, such as work plans and reports,
ultimately selects the remedy, and
ensures that the remedy is implemented
and achieves cleanup objectives. This
command and control approach reduces
risks associated with all phases of
cleanup at a facility; however, it is
resource intensive and may discourage
facility owners/operators from
undertaking voluntary or accelerated
cleanup actions.
Due to limited oversight resources,
many of the lower risk facilities which
are believed to require some form of
corrective action have remained
unaddressed. This issue has raised
concerns about the pace and quantity of
corrective action cleanups. In order to
address these concerns and shift more of
the responsibility for conducting
corrective action activities to the
regulated community, EPA is examining
approaches to independent or self-
implementing corrective action. By
"independent" or "self-implementing"
the Agency is referring to activities
required by regulation to meet certain
standards of performance within
specified time periods without direct,
real-time, oversight by a regulatory
agency. For example, the RCRA
regulations for hazardous waste
characterization require generators of
solid waste to determine if such wastes
are considered hazardous wastes and, if
hazardous, to manage them
appropriately. Generators notify
overseeing agencies of their waste
determinations and management
(through the biannual reporting and
manifesting systems) and overseeing
agencies periodically audit or inspect
generator compliance. Similarly, EPA
believes some corrective action
activities could be sufficiently
prescribed by regulation and carried out
independently by facility owners/
operators subject to auditing by an
overseeing agency, rather than being
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19459
specified in facility specific order or
permit conditions. For example, facility
owners/operators could be required,
upon identification of a release of
hazardous waste or hazardous
constituents at or from the facility, to
conduct an initial screening
investigation and take appropriate steps
to control the release. In another
example, facility owners/operators
. could be required to take whatever steps
' are necessary to certify compliance with
EPA's two environmental indicators for
corrective action. (As discussed in
Section II.E.2 of today's Notice, the two
environmental indicators for corrective
action are human exposures controlled
and groundwater releases controlled.)
EPA believes that applying the
concept of self-implementation to a
cleanup scenario raises many issues. For
example, the complexity and site-
specific nature of corrective action,
coupled with the fact that it requires the
exercise of professional judgement (e.g.,
hydrogeologic, engineering) throughout
the process, may make self-
implementation problematic. These
same factors may make compliance
monitoring and enforcement difficult.
The Agency's experience with the self-
implementing groundwater monitoring
requirements in the interim status
standards (i.e., Part 265, Subpart F) is
indicative of the difficulties that may be
associated with ensuring full <
compliance with self-implementing
standards. The Agency is interested in
general comment on the concept of
independent or self-implementing
corrective action; it is specifically
interested in comments which address:
(a) Scope. EPA requests that
commenters specifically identify the
elements of the corrective action process
which they believe are amenable to self-
implementation.
(b) Public participation. Meaningful
public participation is essential to the
corrective action process. EPA requests
that commenters address incorporation
of public participation opportunities
and activities in self-implemented
corrective action.
(c) Detailed guidance. An argument
can be made that, without detailed
guidance for self-implemented
activities, quality will vary across
actions. EPA requests that commenters
address the degree to which self-
implementation should rely on detailed
guidance and whether the Agency
should issue new guidance for self-
implemented corrective action or if EPA
can rely on guidance already available
at the state and Federal level.
Commenters suggesting that EPA rely on
existing guidance should indicate the
guidance documents they believe would
be applicable. The Agency is also
interested in comments which address
approaches to ensure that facility
owners/operators have access to and use
current and appropriate guidance
documents.
(d) Record keeping and reporting.
Facility owners/operators might be
required to submit information
certifying and documenting their
compliance with self-implementing
requirements. Information and
documentation which EPA could use to
assess the quality of self-implemented
actions might also be necessary. EPA
requests that commenters'address
whether or not Record keeping and
reporting requirements should be part of
self-implementing corrective action.
Commenters who support Record
keeping and reporting requirements •
should address the specific . •
requirements they believe are necessary.
(e) Compliance Monitoring and
Enforcement. Compliance with self-
implementing requirements might be :
monitored through regular inspections
or periodic auditing. EPA requests . .
comments on the ability of state or
Federal overseeing agencies to
adequately monitor and enforce self-
implementing requirements. EPA
requests that commenters specifically
address its ability to accurately assess
the quality of self-implemented
corrective actions without ongoing
Agency oversight. •
(f) Risks. Any reduction in real-time
agency oversight increases the risks that
individual facility owners/operators
might attempt to avoid or obscure
legitimate corrective action obligations.
EPA requests comments on the potential
risks associated with self-
implementation of certain corrective
action provisions and suggestions of
actions that the Agency could take to
eliminate or mitigate such risks.
6. Consistency with the CERCLA
Program
As discussed in Section III.B.l of
today's Notice many facilities subject to
corrective action are also subject to
cleanup under the Federal CERCLA
program. At some of these facilities,
RCRA corrective actions are proceeding
concurrently with CERCLA cleanups
(e.g., the RCRA corrective action is
addressing SWMUs while the CERCLA
cleanup is focusing on other releases).
At other facilities, cleanup is being
addressed by one authority but final
action under the other authority is being
deferred (e.g., a site undergoing RCRA
corrective .action but still on the NPL).
In general, EPA believes coordination of
cleanup activities at facilities with
overlapping RCRA and CERCLA
liability is appropriate; however, the
Agency continues to hear concerns over
duplication of procedural and
substantive cleanup requirements,
including oversight. Recently, EPA
established a multi-agency and state -•
workgroup to examine issues associated
with overlapping cleanup obligations:
Through the "Lead Regulator
Workgroup" the Agency hopes to •
identify specific strategies for
expediting cleanups though reducing or
eliminating the transaction costs that
may be associated with overlapping
cleanup obligations. The Agency
requests comments on the issue of
coordination of overlapping RCRA and
CERCLA cleanup requirements and
suggestions for improvement to the
Agency's current policy and regulatory
approaches to coordination. For
example, would using of the same terms
for remedial activities, such as
investigations or remedy selection,
improve coordination at sites with
overlapping RCRA corrective action and
CERCLA cleanup obligations? Similarly,
should the remedy selection criteria
between the two programs be explicitly
conformed?
While EPA's focus is on coordination
between the RCRA and CERCLA
programs, it also requests comments on
coordination of overlapping state and
Federal cleanup obligations.
7. ASTM RBCA Standard
EPA expects the number of identified
releases from underground storage tanks
(USTs) to increase to more than 400,000
as the 1998 deadline for upgrading,
replacing, or closing UST systems
approaches. To meet the challenge of
addressing these releases in a timely
manner, EPA is working with states to
streamline their administrative
processes and to encourage the use of
expedited site assessment and '
alternative cleanup technologies. The
Agency is also encouraging state and
local agencies to incorporate risk-based
decision-making into their corrective
action programs.
Risk oased decision-making is a
process UST implementing agencies can
use to: focus site assessment data
gathering; conduct initial response
actions; categorize or classify sites;
determine what, if any, further action is
necessary to remediate a site; help
establish cleanup goals; and decide on
the level of oversight provided to
cleanups conducted by UST owners and
operators. To provide support for the
use of risk-based decision-making,
EPA's Office of Underground Storage
Tanks, within the Office of Solid Waste
and Emergency Response (OSWER),
issued Directive 9610.17: Use of Risk-
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Based Decision-Making in UST
Corrective Action Programs. The
American Society for Testing and
Materials (ASTM) has also developed
guidance addressing risk-based
decision-making in its recently issued
.standard ASTM E1739-95, Risk Based
Corrective Action Applied at Petroleum
Release Sites (referred to as RBCA). The
ASTM standard is one example of how
risk-based decision-making can be
incorporated into state UST corrective
action programs. EPA believes the •
ASTM standard may be a good starting
point for the development of a risk-
based process tailored to applicable
state and local laws and regulatory
practices. In addition, state UST RBCA
processes may often be applicable to
petroleum releases from sources other
than leaking USTs.
, EPA requests general comment on the
use of the ASTM RBCA approach in the
corrective action program; it is
especially interested in comments
which address: the appropriateness of
using RBCA-like programs to address
releases from sources other than leaking
underground storage tanks (e.g.,
petroleum spills and contamination at
refineries); whether the ASTM RBCA
approach is acceptable for releases of
chemicals other than petroleum
products; and, whether there have been,
or could be, conflicts between the result
of a cleanup conducted using the ASTM
RBCA approach and cleanups
conducted using the RCRA corrective
action or CERCLA approaches.
8. Definition of Facility for Corrective
Action
As discussed in Section III.B.S.a of
today's Notice, EPA's definition of
facility for purposes of corrective action
has been problematic in some
situations. In certain circumstances, the
concept of contiguity can bring large
tracts of land not involved with
hazardous waste management under
corrective action authorities. In many
cases, these large tracts of land are being
(or could be) addressed using another
cleanup authority (e.g., CERCLA or state
cleanup programs); in other cases, they
may not be a high priority for cleanup.
For example, EPA indicated in the 1990
proposal that, if five acres of a one
hundred-acre parcel of land were leased
to a company that engaged in hazardous
waste management, the facility for
purposes of corrective action could be
the entire 100-acre parcel. EPA also
stated that if (in the same example) the
lessee/operator also owned 20 acres of
land adjacent, to the 100-acre parcel (but
not necessarily adjacent to. the five acres
used for hazardous waste management),
the facility might include that 20 acres
as well. (See, 55 FR 30808, July 27,
1990.) In practice, EPA has found that
imposing this interpretation of
contiguity on situations such industrial
parks, port districts, and large areas of
Federally owned land (e.g., national
forests) can, in some cases, force the
Agency to address sites which are not
engaged in hazardous waste
management and which may not be a
high priority for cleanup using limited
corrective action resources. Another
concern has been that it may be seen as
inequitable to require the operator of a
small facility to be responsible for the
cleanup of a much larger parcel that he
or she does not own. Accordingly, EPA
is requesting comment on whether
corrective action requirements should
apply more narrowly (e.g., only to the
portion of the facility under the control
of the operator engaged in hazardous
waste management). EPA requests that
commenters endorsing a narrow
definition of facility address the concern
that it would encourage facility owners/
operators to narrowly define their
facilities in an effort to avoid legitimate
corrective action obligations and also
address other potential consequences
and concerns, if any, of a facility
definition which is too narrow.
E. Balance Between Site-specific
Flexibility and National Consistency
To account for the variety of
circumstances at corrective action
facilities, EPA has emphasized a
flexible, facility-specific approach to
cleanup; however, using a facility-
specific approach can raise issues
associated with national consistency
and minimum national standards. The
Agency requests general comment on
the appropriate balance between
national consistency and site-specific
decision-making in the corrective action
program. The Agency is specifically
interested in comments which address:
1. Land Use
EPA has been criticized for too often
assuming that the future uses of
facilities undergoing cleanups will be
residential. Residential use is
considered unrestricted land use and
carries the greatest potential for
exposures and the most conservative
exposure assessments. As discussed in
Section III.C.5.J of today's Notice, the
Agency believes that the 1990 proposal
adequately provides for reasonable
consideration of future land use during
development of remedial goals at
corrective action facilities; however, it
recognizes that the uncertainties
surrounding land use assumptions may
cause many program implementors and
facility owners/operators to choose a
conservative approach to future land
use issues. Today the Agency invites
comment on the general issues ; •
associated with consideration of future
land use in the corrective action \
context. EPA is specifically interested in
comments which address: •
(a) Effect. EPA is interested in
comments on the effect of a non-
residential land use determination on a
facility owner/operator's corrective
action obligations and the need (if any)
for additional regulations to address
incorporation of land use determination
in the corrective action process. For
example, how, if at all, should non-
residential land use determinations ,
affect the scope of facility . .
investigations? Should land use
determinations be explicitly required as
part of remedy selection? , , .
(b) Institutional controls. When final
remedies rely on non-residential
exposure assumptions, steps must be
taken to ensure the non-residential
exposure assumptions remain valid and
to trigger additional cleanups should
exposures change. EPA Is interested in
comments which address the role of the
government, if any, in ensuring the
continued application of exposure
assumptions-and in imposing additional
cleanups as necessary. In addition to the
role of government, commenters should
list other factors, incentives or
institutions they believe will play a role
in this process. The Agency-is
particularly interested in cqmment.on
the adequacy of institutional controls
(e.g., deed notices, easements, or local
land use controls) to ensure that
changes in land use trigger additional
cleanups as appropriate, the advantages
or disadvantages associated with such
controls as opposed to direct •. . .
governmental oversight.
(c) Additional cleanup necessitated by
changing land use. EPA requests that
commenters specifically address
completion of any additional increment
of cleanup necessitated by changing
land use. The Agency is also interested
in comments which address the
continuing obligation, if .any, of the •
facility owner/operator to ensure that
(should land use change) additional :
cleanups will be effected, the obligation
(if any) on the person who changes the
land use at the facility, the legal
mechanisms that might be used to
impose these obligations, the role of the
Agency and/or facility owner/operator
in monitoring land use changes and the
necessity, if any, for the facility owner/
operator or others to provide financial
assurance in case an additional cleanup
should become necessary. •' • • •
(d) Periodic review'of remedies. The
. Superfund program periodically reviews
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remedies to ensure their continued
effectiveness. EPA requests commenters
address the need for and potential
benefits or problems associated with
periodic review of RCRA corrective
action remedies. Commenters who
believe periodic review of remedies is
desirable should address the frequency
and content of such reviews.
2. Points of Compliance
The location at which media cleanup
levels must be attained (point of
compliance or POC) has significant
implications for the scope, magnitude
and cost of corrective actions.
Comments regarding the POC for
corrective actions were received in
response to the 1990 proposal; this issue
has remained controversial and EPA
believes it is appropriate to provide
another opportunity for public review
and comment at this time. The Agency
requests general comment on its
implementation of the point of
compliance concept in the corrective
action program and other POC issues.
EPA is especially interested in
comments which address:
fa) Alternatives to the throughout-the-
plume/unit boundary POC. EPA
requests suggestions on alternative
POCs, especially groundwater POCs.
Commenters should address the factors,
scenarios, and decision-making criteria
that should be considered in justifying
alternatives to a throughout-the-plume/
unit boundary POC (e.g., a facility
boundary POC). In supplying input on
alternative POCs for groundwater,
commenters should consider the
Agency's expectations for groundwater
cleanups, (1) returning groundwater to
its maximum beneficial uses wherever
practicable; (2) preventing or
minimizing further migration,
preventing exposure to the
contaminated groundwater and
evaluating further risk-reduction; and,
(3) controlling or eliminating surface
and subsurface sources of groundwater
contamination. Commenters who
believe that changes to EPA's
expectations for groundwater are
necessary to support appropriate POCs
are also invited to comment on EPA's
groundwater expectations in general.
(b) Points of compliance for
stabilization. EPA requests comments
on whether it should develop a
stabilization point of compliance or to
support the Stabilization Initiative. As
discussed in Section n.E.l of today's
Notice, the Stabilization Initiative is
EPA's primary corrective action
implementation strategy. Stabilization
actions for groundwater often involve
source control and hydraulic
containment. A stabilization point of
compliance could be used to help define
the location at which a performance
measure of groundwater plume
containment would be measured.
(c) Point of compliance for surface
water. Typically, the point of
compliance for releases to surface water
is at the point where the release enters
the surface water. EPA requests
comments regarding factors that should
be considered in selecting the
appropriate standards that must be
achieved at the point where the release
enters surface water. For example, is it
appropriate to consider the mixing that
occurs within the receiving surface
water when establishing points of
compliance for surface water
discharges? Mixing zones are often
considered when evaluating the
acceptability of waste water discharges
regulated by the National Pollution
Discharge Elimination System (NPDES).
EPA also requests comments on the
differences between evaluating the
actual and potential impact from point
source "pipeline" NPDES discharge and
a more widespread discharge of
groundwater entering as base-flow into
the surface water body. Of particular
interest associated with groundwater
discharge to surface water is the
potential for, and impacts from
accumulation of contaminants in
sediments. Also, the Agency is
interested in feedback regarding the
degree to which monitoring would be
capable of assessing impacts of both the
short- and long-term discharge of
groundwater to surface and the
associated standard of protection being
afforded. The Agency is interested in
examples where a discharge to surface
water of certain loadings of
contaminated groundwater was
determined to be harmful or not harmful
to human or ecologic receptors.
3. Standardized Lists of Action Levels
and Media Cleanup Levels
The attempt to balance flexibility with
the need for national consistency can be
particularly contentious in the area of
media-specific action and cleanup
levels. Some stakeholders argue that
lists of clearly defined action and
cleanup levels will reduce transaction
costs, increase the pace of cleanups and
encourage voluntary actions; many
program implementors and facility
owners/operators currently use lists of
standardized action or cleanup levels
when implementing corrective action
requirements (e.g., some states have lists
of standardized media-specific cleanup
levels). Other stakeholders argue that
standardized lists of action or cleanup
levels are too often developed based on
conservative residential exposure
scenarios, can be too easily misapplied,
and often result in overly stringent
cleanup actions. As an alternative to
lists of standardized action and cleanup
levels, some Agencies have developed
standardized approaches (i.e., formulas)
that allow for consideration of site-
specific conditions. EPA has recently
taken this approach in developing the
Superfund Soil Screening Guidance
(see, Section II.F.B.b of today's Notice).
EPA invites general comments and
suggestions pertaining to the
development, distribution and use of
media-specific action and cleanup
levels. The Agency is specifically
interested in comments which address
the advantages, disadvantages and
preferences regarding standardized
approaches verses publishing lists of
standardized levels (note, lists of
standardized levels would be developed
using standardized approaches, the
difference is in consideration of site-
specific factors, such as depth to
groundwater). Since many states have
already developed standardized
approaches or lists of action and
cleanup levels, EPA requests
commenters also address the role of
EPA in developing, distributing, and
periodically updating national
approaches or lists and the relationship
of any standardized approaches or lists
developed at the national level to
existing state programs.
4. Area Wide Contamination Issues
In some cases corrective action
facilities are located in areas of widely
dispersed contamination. For example,
some corrective action facilities may be
located in tidal areas which were
reclaimed by placement of fill materials
now considered contaminated. In oilier
cases, an RCRA corrective action facility
may be impacted by releases from off-
site source areas not subject to RCRA
corrective action (e.g., sources at an
adjacent facility not seeking an RCFA
permit). In some of these circumstances,
cleanup of the corrective action facility
to risk based media cleanup levels,
while desirable in the long term, might
not make sense in the short term
because contamination from off-site or
otherwise unrelated sources would
quickly re-contaminate the facility. EPA
requests comments on application of
corrective action requirements in areas
of widely dispersed contamination and
when the RCRA facility is otherwise
impacted by releases from off-site
sources. EPA requests that commenters
specifically address the obligation, if
any, a facility owner/operator should
have to address the area-wide
contamination to the extent it is present
at his or her facility. If commenters
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believe facility owners/operators should
not be required to address area-wide
contamination, the Agency requests
comments on the continuing obligation
under RCRA, if any, such facility
owners/operators should have for an
eventual cleanup to risk based levels.
5. Ecological Risk
As described in Section III.G.S.g of
today's Notice, EPA's mandate is to
protect both human health and the
environment; therefore, assessing risks
to ecologic receptors may be warranted
in the context of implementing RCRA
corrective action at many sites. The
Agency recognizes, however, that
assessing impact to ecologic receptors
from environmental contamination is a
rapidly evolving field of study.
Therefore, the Agency is interested in
receiving comments and data pertaining
to: state-of-the-art approaches and tools
for conducting ecologic-risk assessment,
including initial screening as well as
detailed assessments; availability of
identification of useful guidance;
availability of standardized eco-based
action levels and cleanup levels, or
standardized approaches for developing
site-specific levels; site-specific
examples of impacts to ecologic
receptors from RCRA corrective action
sites, and examples of successful
remedial actions implemented to
address these impacts; limitations
associated •with assessing ecologic risks,
and taking remedial actions to protect
ecologic receptors in general; specific
needs for additional guidance and
research; and suggestions regarding the
scope of specific corrective action
regulations dealing with assessment and
protection of ecologic receptors.
6. Risk Assessment Methods
EPA has been criticized for relying on
uniform, "one size fits all" risk
assessment methods, particularly in the
context of its remedial action programs.
According to critics, often, the default
assumptions or models incorporated
into Agency risk assessment guidance
documents do not adequately reflect
site-specific conditions. The use of
empirical data collected from a site, or
methods developed expressly for
application at specific sites or types of
sites, could result in more valid and
reliable characterizations of risks to
human health and the environment. On
the other hand, not every site would
benefit from a comprehensive site-
specific evaluation. EPA thus needs to
strike a balance between the ease of
uniform risk assessment methods and
the improved targeting and effectiveness
associated with accounting for site-
specific conditions.
EPA is interested in the effect of
provisions which would encourage the
expanded consideration of site-specific
conditions and other innovative risk
assessment methods where such
provisions would enhance program
effectiveness or efficiency. For example,
how could the Agency provide for the
use of site-specific or innovative
approaches to risk assessment while
still enabling EPA or state agencies to
maintain adequate oversight? Are there
mechanisms available for risk
assessment to be independently
validated as reasonable
characterizations of site risk, thereby
reducing the demands for technical
oversight and the time required to
approve site-specific decisions. What
incentives (if any) should EPA provide
to encourage these efforts? What
provisions or procedures, either in the
1990 proposal or in existing regulations,
inhibit the effective use of site-specific
risk assessments?
Significant improvements in risk
assessment methodology have occurred
since the 1990 proposal. EPA is
interested in capturing these benefits in
the corrective action program. The
Agency thus seeks comments
concerning how RCRA corrective action
regulations might be constructed so as
to maximize the extent to which these
improvements are reflected in site
evaluations, as well as the development
and selection of remedial alternatives.
Further, EPA is interested in comments
addressing actions the Agency could
take to act as a positive force for change
in the evolutionary improvement of risk
assessment methods.
F. Public Participation and
Environmental Justice
EPA intends for the final corrective
action regulations to be consistent with
the Agency's efforts to improve
permitting and public participation
while providing sufficient flexibility to
meet site-specific goals. The Agency
believes that facility owners/operators,
state environmental agencies, tribes, and
private citizens are often in the best
positions to determine what modes of
communication and participation will
work best in their communities. EPA
believes the final rule should provide
the flexibility necessary to find the best
local solutions.
EPA requests general comment on the
role of public participation in the
corrective action program and on
opportunities to improve public
participation, especially the
participation of any communities which
have not been effectively involved in
the corrective action process to date.
The Agency is particularly interested in
comments which address:
(a) Public participation tools.
Currently, most public participation
opportunities center around use of
public notices (usually in a local
newspaper) and public meetings. EPA
requests that commenters address the
use of additional public participation
tools (such as public participation
plans, community advisory panels, fact
sheets, workshops, on-line
communications, and informal
meetings) which might be more effective
in reaching communities.
(b) Public participation responsibility.
EPA believes there may be situations
where the corrective action process
would benefit if the facility initiated the
permit modifications under 40 CFR
270.42, rather than the Agency initiating
permit modifications under 40 CFR
270.41. For instance, if a facility owner/
operator must undertake an interim
action, it may be more appropriate for
the facility to request a permit
. modification. EPA anticipates that
allowing this flexibility would improve
interaction between the public and the
facility and allow owners/operators to
streamline ,the process by combining
modifications, where appropriate. We
request comment on this approach and
the use of owner/operator initiated
permit modifications to provide public
participation opportunities.
(c) Tailoring public participation to
the level of interest. EPA encourages
facility owners/operators and regulatory
agencies to choose a level of public
participation that is commensurate with
the level of public interest. The Agency
is aware of innovative approaches to
public participation where the level of
public participation opportunities
increase dramatically if a certain
number of citizens from the affected
community request increase public
participation. The Agency realizes that
every corrective action process is
different and may involve overlapping
and varied activities. EPA requests
comments on public participation tools
which could be used to tailor public
participation opportunities to the level
of interest in the affected community
and to the significance of any given
corrective action activity. The Agency
requests that commenters who support
tailoring public participation
requirements to the level of interest at
any given facility also address the
degree to which the Agency or the
facility owner/operator should take
steps to inform the public of the onset
of corrective actions to initiate public
interest.
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Federal Register / Vol. 61, No. 85 / Wednesday, May 1, 1996 / Proposed Rules
19463
G. When Permits Can Be Terminated
The 1990 proposal contained a
provision requiring owners and -
operators to obtain RCRA permits for
the entire "period necessary to comply
with the requirements of Subpart S"
(proposed 40 CFR 270.1(c)). As
discussed in the preamble to the 1990
proposal (see, 55 FR at 30846) this was
intended to apply even where the
hazardous waste management activities
that originally triggered the need to
obtain a permit were no longer
continuing. The aim of this provision
was to ensure that corrective action was
carried to its conclusion. Furthermore,
EPA believed that if corrective action
obligations ceased when the need for
the permit otherwise ended, an artificial
incentive would be created to terminate
viable facilities (e.g., facility owners/
operators would choose to curtail
management of hazardous waste—and
the need for an RCRA permit—in to
avoid completing corrective actions).
When the CAMU rule was
promulgated, EPA reiterated its view
that facilities undergoing corrective
action must continue to renew their
permits, even if the original regulated
hazardous waste activity has ceased,
until the corrective action has been
completed. See 58 FR at 8676-77. EPA
clarified that this obligation arises under
existing statutes and regulations, even
pending final promulgation of the
additional language proposed in 1990.
EPA indicated at that time that it would
determine whether further regulatory
clarification of this issue was necessary.
At this time, EPA is inviting comment
on whether, as a policy matter, extended
permitting is the best approach to
ensuring that corrective action is carried
out over the long term, or whether other
alternatives should be considered. For
example, one approach might be to
terminate the permit when active hazard
waste management ceased, but to
continue the cleanup obligation through
some other vehicle, possibly an
enforcement order. Any alternatives
proposed should address such matters
as the reliability of the approach over
the very long term, the level of
administrative oversight required, the
legal basis in RGRA for imposing the
requirement if a permit is not issued
and whether the RCRA statute would
allow terminating a permit before the
corrective action was complete.
Commenters proposing alternatives are
particularly encouraged to address
options for the situation where
engineering or institutional controls
must be managed indefinitely into the
future and whether permits can or
should be terminated when the final
remedy involves some form of
engineering or institutional controls.
Commenters who support permit
termination when final remedies
involve engineering or institutional
controls are encouraged to address what
other mechanisms, if any, should be
used to ensure continued reliability of
the engineering or institutional control
and the role of EPA, if any, in imposing,
maintaining and enforcing such
mechanisms.
H. Effect of Property Transfer on
Corrective Action Requirements
The transfer of part of a facility
subject to corrective action creates
questions regarding which corrective
action obligations continue at the
transferred parcel and which party has
the corrective action responsibility. The
1990 proposal discussed this issue, and
EPA is still interested in general
comments in this area. The 1990
proposal identified two options:
requiring the permittee to complete
corrective action even on parcels sold to
others, and requiring the purchaser of
the parcel to complete the corrective
action. EPA continues to be interested
in comments on these two options.
A related issue is the point in time at
which the extent of the facility is
defined. For example, if a parcel were
transferred after a permit application
had been submitted, but before a permit
or corrective action order was issued,
the implications might be different from
if the transfer occurred after the permit
was issued. The 1990 proposal also •
suggested that it might make a
difference whether the transfer occurred
before implementation of the remedy.
Since RCRA corrective action
requirements apply to the current owner
and operator of an RCRA facility and do
not routinely extend to past facility
owners/operators, EPA believes there
may be some incentive for facility
owners/operators to sell portions of
their facilities before corrective action
'requirements can be imposed. EPA is
aware of situations where a facility
owner/operator has sold entire facilities,
excluding only the closed RCRA
regulated units, in what seems to be an
effort to avoid application of RCRA
corrective action requirements. While
EPA has numerous authorities that
could be used to address cleanup
requirements even after portions of the
facility had been sold, EPA believes
application of these other authorities,
rather than RCRA corrective action
authorities, could increase transaction
costs and delay cleanups.
I. Financial Assurance for Corrective . "
Action • -
Currently, Financial Assurance for .
Corrective Action or FACA is required
under 40 CFR 264.101. More detailed*
requirements for financial assurance for
corrective action were proposed on
October 24,1986 (51 FR 37854) and in
the 1990 proposal. EPA requests general
comment on the need for detailed
corrective action financial assurance
regulations and the utility of the 1986
and 1990 proposals as guidance in this
area. Commenters should address
whether regulations or guidance would
better promote the goals of the
corrective action program and financial
assurance for corrective action, and
whether the flexibility inherent in the
FACA proposals has been useful or
detrimental. In addition, EPA is
interested in comments which address:
(a) Timing of financial assurance.
EPA requests commenters address both
the stages in the corrective action
process where FACA requirements have
proven most useful (e.g., should
financial assurance be required before a
remedy is selected, perhaps to ensure
completion of facility investigations)
and the stages, if any, where FACA
requirements have been of limited
utility. In its previous notices, EPA has
said that financial assurance should be
required at the time of remedy selection.
Is this still an appropriate policy? EPA
is especially interested in comments
that address whether financial
assurance has been an impediment to
corrective actions due to the investment
entailed. In addition, the Agency
requests comments on how the amount
of financial assurance required should
be determined. For example, should
financial assurance be required for
operation and maintenance costs in .
perpetuity or should it be required for
a standardized length of time (e.g., five,
ten'or twenty years)? Should the
financial assurance timing be adjusted
to address interim measures and
support the stabilization initiative?
Because cost estimations at certain
stages in the process can be inaccurate,
should financial assurance requirements
cover shorter time frames, such as two
years? Should EPA be concerned with
financial assurance for short term
investigation and construction costs, or
should we focus on assuring long term
operations and maintenance expenses?
(b) Design of a FACA rule.
Commenters who believe that EPA
should promulgate detailed regulations
on financial assurance for corrective
action should address the design of such
rules. Alternatively, are the current
general rules sufficient or more
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Federal Register / Vol. 61, No. 85 /Wednesday, May 1, 1996 / Proposed Rules
appropriate? Are there algorithms or
decision guidelines which, have proven
successful in ensuring adequate
financial assurance; should EPA adopt
these guidelines as guidance or in
regulation for corrective action financial
assurance? How should financial
capability enter into decisions on
stabilization or corrective measures?
How well is the current financial
assurance for corrective action program
working? EPA is interested in
alternative approaches to ensuring the
completion of corrective actions. For
example, are there particular state rules
which have proven effective in dealing
with both financially sound and
financially weak firms? Are there other
clean up programs which address
financial assurance more effectively
than the current corrective action
program? Should evidence of corporate
commitments to cleanups such as
continuing construction and progress
affect financial assurance requirements?
If so, how?
(d) Cost estimates. EPA requests that
commenters address the accuracy and
timing of FACA cost estimates. EPA is
interested in comments which address
the causes for differences among FACA
estimates at various stages in the
corrective action process, differences
between estimates and actual figures,
particular stages of the corrective action
process which are more prone to cost
errors than others, the time period over
which cost estimates are most accurate,
and the relationship between costs
reported to permitting authorities and
costs reported in financial reports. Some
permittees have suggested that cost
estimates cover only a period of two to
three years with annual updates. Would
this be adequate and appropriate?
(e) Discounting. EPA requests that
commenters address the use of
discounting in the FACA process. For
example, would discounting produce
better estimates of corrective action
costs or change corrective action
decisions? If commenters believe
discounting is appropriate, the Agency;
requests that comments address the
effect of discounting on FACA
instruments, appropriate discount
factors and time frames and, if
discounting is used, the bases for
requiring or not requiring FACA for the
whole process.
(f) Use of the 1986 Proposal As
Guidance. EPA requests that
commenters provide information on
when the 1986 proposal has been useful
as guidance. Have the mechanisms in
the proposal provided for clean ups or
clean up activities which would not
have occurred without them? Have the
mechanisms or requirements diverted
resources from actual clean up
activities? Are the proposal mechanisms
unnecessary, insufficient, or outdated?
/. State Authorization
EPA requests comments on general
issues associated with state
authorization for corrective action and
the relative roles of state and Federal
agencies in authorized states. EPA is
particularly interested in comments
which address:
-(a) Rate and pace of authorization.
EPA intends for states to be the primary
implementors of the RCRA program.
Although 49 states and territories'are
authorized to implement the RCRA
program, many of these states are also
authorized for significant amendments
to the RCRA program, including 29
states which are authorized for
corrective'action.-EPA requests
comments on incentives (and
disincentives) to corrective action
authorization and suggestions for
improving the efficiency of • .•
authorization processes.
(b) Role of EPA in authorized states.
As more states become authorized,
EPA's role is changing. For example, in
many states EPA is doing much less
direct program implementation. EPA is
interested in defining its role in
authorized states and in developing
oversight models which use state and
Federal resources most efficiently (e.g.,
focus on results, rather than process).
(c) Effect of promulgation of corrective
action rules on authorized state
programs. Final corrective action
regulations will be promulgated
pursuant to HSWA. Ordinarily, more
stringent HSWA rules are immediately
effective in authorized states (RCRA
Section 3006(g)(l). However, EPA is,
concerned about potential disruptions
to ongoing cleanup being conducted
pursuant to authorized state corrective
action programs and does not want
authorized state corrective action
programs to revert back to EPA.
Therefore, in 1990, EPA proposed that
any revisions to final Subpart S
corrective action regulations would not
become effective in states authorized for
Subpart S until those states had adopted
the new rules. Currently 29 states are
authorized for the existing corrective
action regulations, EPA believes the
same logic that led it to propose that
revisions to the corrective action
regulations proposed in 1990 would not
become effective in authorized states
until states adopted them could
arguably be applied to the current
situation; therefore, EPA requests
comments on whether final corrective
action regulations should not be
effective in states authorized for the
existing corrective action program until
those states adopt the final rules. EPA
also requests comments on approaches
to authorization which will minimize
disruption of existing state corrective
action programs upon promulgation of
new Federal corrective action
requirements.
Dated: April 12,1996.
Carol M. Browner,
Administrator.
[FR Doc. 96-9707 Filed 4-30-96; 8:45 am]
BILLING CODE 6560-60-P
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