NATIONAL RCRA CORRECTIVE ACTION STRATEGY
L'.S. Environmental Protection Agency
Office of .'Solid Waste and Emergency Response
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NATIONAL RCRA CORRECTIVE ACTION STRATEGY
I. INTRODUCTION
The Hazardous and Solid Waste Amendments of 1984 (HSWA)
greatly expanded authorities under the Resource Conservation
and Recovery Act (RCRA) for requiring corrective action for
releases of hazardous wastes and constituents at facilities that
manage hazardous wastes. Section 3004(u) of HSWA requires
corrective action for releases of hazardous wastes or constituents
fror. any solid waste r.anage-er.t ur.it at a storage, treatment or
disposal facility that is seeking or otherwise subject to a RCRA
permit. Section 3004(u) also requires that these perr.its contain
assurances of financial responsibility for complying with corrective
action. Moreover, section 3004(v) authorizes EPA to require
corrective action beyond the facility boundary. Section 3008(h)
of HSWA authorizes the Envi ronr.ental Prc-ection Agency(EPA) to
require corrective action or other necessary response measures
whenever it is determined on the basis of any information that
there is or has been a release of hazardous wastes or constituents
fro- a facility authorized to operate under Section 3005 (e) cf .~Z?_-..
This strategy, is intended to inform Regions, States, the
regulated community and the public how the Agency plans to approach
implementation of the corrective 'action prqara^m. This section
<"t>:-" -*•<'. •-•.-...,,.
introduces the HSWA corrective action authorities and discu'sses
the universe of RCRA facilities subject to these requirements.
Section II discusses the basic technical process that applies
generally to any corrective action. Section III discusses hcv ^'..^
Agency will approach the corrective action protrra.-, i r. r lu i i r. r
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establishing priorities, and factors influencing management of
corrective action. Section IV discusses the EPA-State partnership
in achieving corrective action goals. At the end of each section
or subsection there are lists of guidance documents for the RCRA
corrective action program that have been issued to date and
planned documents and the current target dates for their issue.
Also included are the training courses that are planned fcr each
component of the prcgran. Under 'each item a contact person is
provided who can answer inquiries about the topic. Appendix I
lists guidance issued by other programs that nay be useful in
implementing the corrective action program.
The success cf the RCRA corrective action program depends
on cooperation between the States, EPA, the regulated community .
and the public. Of critical importance is early involvement
of the affected public in the corrective action process. EPA
intends to develop a corrective action public participation
program that provides information on the facility to the public,
gives them an opportunity to make their views kr. OV.T. to EPA or
the State and that provides for consideration of their views
in t h •= —5 vision ma ]< i nc D r c c e s s.
These new corrective action authorities greatly expand
EPA's ability to ensure that RCRA facility owners and operators
correct releases at their facilities that may pose a threat to
human health and the environment. The new 3004(u) authority
applies to facilities subject to RCRA permits. This includes
operating permits fcr new and existing facilities and post closure
perr.its for Ian- disposal facilities. At facilities that received-
F.C?x.\ permits c;-10*. r-~ i;cve;:-ic.- £, lic-i, corrective action repair <=-
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ments will be imposed upon issuance of a new perrit cr.ce the
current permit expires or is reopened.
The scope of the 3004(u) authority is largely defined
by its key terns- It requires that permits impose corrective
action for releases of hazardous •wastes or constituents which
pose a threat to hur-.an health and the environment, frcr. any
solid waste management unit (S'v.'"TJ ) at a storage, treat.ner.t cr
disposal facility seeking a RCRA permit. To understand the
scope of this authority it is necessary to understand the key
terms of the statutory provision.
The term, "release" is defined in the final Codification
Rule (July 15, 19=5) to include any spilling, leaking, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping or disposing ir.to the environment. While similar to the
CERCLA definition, it excludes discharges of hazardous wastes c.-
constituents to the injection zone of a 'JIC permitted Class I
injection well. It can also include releases that are authorize.
or otherwise per-it ted under ether envircnrr.en - al statutes.
The term "solid waste management ur.it" is also explained
in the Final Codification Rule (July 15, 1985;. It includes
any discernable waste management unit from which hazardous
constituents may migrate, irrespective of whether the 'unit v= s
intended for the ran age men t of solid or hazardous wastes. The
following types of units are therefore included in the definiticr
of SWMUs: landfills, surface impoundments, waste piles, land
treatment units, incinerators, injection wells, tanks (including
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90 day accumulation tanks), container storage areas and transfer
stations. In addition to these types of units, certain areas
associated with production processes at facilities which have
become contaminated as a result of routine, systematic and
deliberate releases of wastes, or hazardous constituents from
wastes, are also considered to be solid waste management units.
A product may become a waste if it is abandoned or discarded.
Some questions have been raised regarding the application ~i
the concept of "solid waste management unit" to other types of
contamination at facilities, such as spills, leakage from prod-ct
storage, and releases from production processes that are not
routine, systematic and deliberate. Such releases are not con-
sidered to be solid waste management units. As explained in the
Final Codification Rule (50 FR 28712), one-time spills of wastes
or constituents are considered subject to §3G04(u) corrective
action only if the spill occurred from a solid waste management
unit. A spill which cannot be linked to a discernible solid
waste management unit is not of itself a solid waste management
ur.it. Likev/i ss , leak acre from oroduct storage and other tvoes ~f
releases associated with production processes would not ce cor.s liere.
so 1 • ^ •.-.•?. s t» ~an. ^-renent units, unless these releases were routir.e,
systematic and deliberate.
The term "facility" includes all contiguous property under
the control of an owner or operator at which the units subject
to permitting are located.
Section 3008(h), the enforcement corrective action authority,
also vests broad discretion with the Agency to compel corrective
.action. This authority h=.s beer, interpreted to authorize the
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Acencv to cor.pel corrective neasures or other actions necessary
to protect human health or the environment whenever the Adrinistratcr
determines, based on any information, that there is or has been a
release of hazardous wastes or constituents from an interim status
RCRA facility. The key terrs in this provision are interpreted
in a December IS, 1985 EPA memorandum entitled "Interpretation
of Section 30C9(h) of the Solid Waste Disposal Act." The terr.s
release and facility are interpreted as they are for Section
3004(u). Appropriate information upon which to conclude there
may have been a release for purposes of section 300S(h) include,
but are not limited to the following: data from laboratory analyses
(fror. soil, air, surface water or ground water sarr.ples), observations
recorded during inspections, photographs and information obtained
fror?. facility records.
It should be noted that the §30CS(h; authority is not con-
fined to addressing releases fro- solid waste management units.
It is the Agency's 'position that the coverage of the types of
releases w.ic'.-. car. be addressed under ;3CC = (h) is so.-.evhai differs:.-:
in scope than that of §3Q04(u). In situations where a '5-3003 (h)
action V.-?. haer. initiated at a facility ~-.z address releases that
are not fror, solid waste management units, and where a perrit is
subsequently issued to the facility, the Agency intends that
those action? will he continued under the perr~.it, under the
authority of P.CRA section 3005 (c) (3). Cor.ment is requested on
this proposed approach.
Not only are these RCRA corrective action authorities broad,
but the universe of RCRA facilities to which they potentially
a??-y -s diversfe. Ar.ong the types of RCRjT. facilities tnat can
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present environmental problems are land disposal, treatment
and storage facilities. Corrective action requirements apply to
these facilities regardless of whether they are continuing waste
management op'efations or closing these operations. Moreover,
these requirements apply regardless of -whether a facility or part
of it is subject to an action under the Comprehensive Environmental
Response Compensation and liability Act of 1980 (CERCLA or Superfur.i
The RCRA facilities subject to corrective action are also
diverse in that there are varying amounts of existing information
available on them. For example, in some cases there will be
extensive information available on the regulated unit (and
possibly the solid waste management units) from previous enforcement
actions, the Part A and 3 applications, inspection reports, etc.
In others, very little information may be available, thus increasing
the initial information gathering burden. At sore facilities
there will be extensive and complex corrective actiorr required,
while at others little or no action may be necessary.
Federal facilities are subject to RCRA corrective action
requirements. At this time E?A is working with other Federal
agencies to determine how best to manage the corrective action
program for the Federal establishment. "This effort is dealing
with several issues, including how to define facility ownership
in'- light of the structure of many agencies, and how to coordinate
the RCRA and CERCLA corrective action programs.
In developing the corrective action program it is EPA's
intent to recognize the diversity of the universe subject to
corrective action and to adopt a system for managing the program
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which provides sufficient flexibility to ensure that corrective
measures necessary to protect human health and the envi ronmer.t
are taken expeditiously.
In order-to establish a consistent and well-defined progra,-.
for implementing the nev RCRA corrective action mandate, the
Agency intends to develop a comprehensive regulatory framework to
define both procedural and substantive requirements for the
prograr.. This major rulemaking will provide the regulated ccr..v.unif-
and ether parties the opportunity to participate in the decision
making process for setting standards for the program. Regulations
*
will also provide a solid legal foundation to enforce those
standards. Proposed regulations are tentatively expected to be
issued in the Fall of 1997.
Among the me s - important decisions which must be made in
implementing corrective actions at actual facilities is the
determination of when corrective action is required, and when it
is completed. Standards for these "how clean is clean" decisions
v/ill be a majcr component of the rulemaking effort described
above. The Agency intends to develop guidelines for determir.ir.r
when corrective actions will be "triggered". "Target" levels
will be established to define the objectives to be reached by
corrective actions. It is the Agency's current intention to set
these target levels using health and environmental based goals,
within the limits of feasible technology.
The fundamental objectives of the RCPA corrective action
prograr. are essentially similar to those of CERCLA. Because
seme r.CRA facilities can be expected to ultimately become Superfund
sites (sore F.C?.-. facilities actually have CERCLA-manciated actions
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already underway), there is need to maintain consistency between
the two programs in making response decisions. Whenever feasible,
the Agency will design corrective action policies and guidelines
so as to foster consistency. It must be recognized, however,
that there are statutory and programmatic differences between
the RCRA and CERCLA programs which the Agency must consider in
formulating the RCRA corrective action program. As the RCRA
program is developed through policy, guidance and regulation,
one of the Agency's primary objectives will be to maintain consistency
with CERQLA, while tailoring the program to meet the specific
needs and objectives of RCRA.
GUIDANCE;
Guidance on use of Section 3G03(h); December 16, 1985;
Contact: Ginny Steir.er (202)475-9329
Agency Interpretation of 3004(u): Corrective Action for Continuing
Releases; draft issued I/30/35; Contact: lave Fagan (202) 332-474C
TRAINING:
Seminars on use of 3008(h) and soon to be issued procedures
are ter.tat ive lv clanned for FY 67 for EPA P.e-i^r.al oersor.r.el.
C'r-ri.C 'iVF ACTION" rRD
This section outlines the basic technical steps that will be
taken to identify potential releases, characterize them and
select and undertake appropriate response actions. Understanding
these basic steps is central to implementing the corrective
action process outlined in section III of this strategy. These
steps apply to corrective action secured through a permit or
cor.pleted through an enforcement orier.
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Specific policies, guidelines and regulations on various
aspects of this process will be issued over the next several
years. This section provides the basic framework against which
these guidances, will be developed. It should be understood,
however, that these steps nay vary in detail or be eliminated
altogether depending on the individual facility situation.
Examples of situations- in which this may occur are outlined in
section III below. The stages of a corrective action are
illustrated in Figure 1. Figure 1 shows the steps of the
corrective action process and also identifies the appropriate
roles of the regulatory agency and the facility owner/operator (o/o)
in the various steps.
A. PCP.H Facility Assessment (RFA) :
The first ster. in any corrective action is the assessment
of the facility to identify actual and potential releases from
RCRA regulated units and other solid waste management units.
The objective of this assessment is to determine whether there
is su^~'i~i^r|i" or ••;~opr>o Q -^ ^ £• A i o ^ c o * ^ y FAs routinely examine facilities
entire p~ o *.-.--icr., V. = nd li r.r s.r.1 stcrari areas ani activities-
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FIGURE 1
RCRA CONTINUING RELEASES CORRECTIVE ACTION PROCESS
Regulatory Agency performs Rv.RA facility assessment I RFA) with
o/o cooperation where appropriate to:
0 Identify solid waste? management units (SWMUs) and
collect existing information on contaminant releases.
Identify releases needing further investigation
R
e
o
0
egulatory Agency speciries perm.it conditions or issues
nf or cement order to facility owner or operator to:
Perform investigations on releases of concern;
and/ or
Ir.Dlem.ent interim, corrective measures.
i
a
i
Facility Owner or Operator performs RCRA facility j
nvestigation (RFI) to characterize the nature, extent
nd rate of migration for releases of concern and/or
mplements interim corrective measures.
Regulatory Agency evali
determines need for coj
:ates results of RFI and
rrective measures. (CM)
Owner or Operator proposes appropriate CM when
required by regulatory agency.
Regulatory Agency evaluates CM proposal and |
(specifies appropriate CM. j
Owner or Ocerator demonstrates financial assurance,
and designs, constructs, operates, maintains and
monitors the CM.
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However, when conducting RFAs investigators may become aware of
other types of releases (e.g-» product releases) or sources of
contamination not related to solid waste management units, but.
which merit further investigation and characterization by the
owne-r/operator. " Likewise, certain areas at facilities that are
not soli; waste management units may be identified as likely to
be causing serious environmental, problems, but about which little
or no actual evidence of contamination is available; such situations
may merit preliminary, RFA-type investigations to be conducted br-
owner/operators to verify releases.
As explained previously, releases which are not linked to
solid waste management units may be addressed using §30Cy(h) or
other enforcement authorities. It is the Agency's intention
that when issuing a perm.it to a facility, the perm.it schedule of
compliance may also, as necessary, require owner/operators to
address releases that are not linked to sz lid waste management
units, under the authority provided in RCRA section 3005(c)(3).
EPA specifically invites comment on this proposed approach.
The scope of an RFA may vary from facility to facility.
In most cases it is preferable to address ail the solid waste
management units at the facility in the RFA. This is especially
true when dealing with a facility in which ur.its are closely
related and subsequent investigations will be more e: f icier.t-y
performed by addressing the entire facility. however, it may ce
permissible to perform, an RFA for a particular unit or uaits in
advance of the rest of the facility. This could occur, for
example, when there is an immediate threat that needs to be
addressed. The RFA is performed by EPA or the State and can
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inciude use of sampling data gathered by the owner/operator of
the facility. However, if there is any problem with owner/ ope rator
participation in the RFA (timeliness, reliability etc.) EPA or
the State will perform the. entire RFA.
B. Interim Measures;
These are corrective Treasures that nay be taken at any pcii'.t
in the corrective measures process to abate threats. These
actions are generally short term actions responding to immediate
threats, such as actual or potential exposure to hazardous wastes
or constituents, drink ing water contamination, threats of fire
and explosion, and other situations posing similar threats.
Normally, minimum study an:: planning is necessary for interim
measures. Interim measures can be quite effective in abating
immediate problems and in keeping existing problems fron worsenir.j
while studies are being completed. Interim measures can be
particularly useful in dealing with facilities that are economically
marginal and which -ay only be able to complete part of their
P.CP.A corrective action obligations.
C. RCPA Facility Investigation (RFI):
The purpose of a F.CF.A Facility Investigation is to gather
data sufficient to fully characterize the nature, extent and rate
of migration of contaminant releases identified in the RFA. Of
paramount importance to the RFI is that it provide sufficient
data to determine appropriate response actions (i.e. appropriate
corrective measures or document that no action is needed). The
RFI is perfom.ed by the facility owner/operator pursuant to an
enforcement order or a permit schedule cf compliance. ELrA or
the State oversees this aotivitv.
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T. Corrective Measures Study ar.d Selection of the Appropriate
Measures
After the RCRA Facility Investigation is ccr.pieted the
owner/operator must identify the appropriate corrective measures
and recommend then to EPA or the State. EPA or the State will
then review the recommendation, provide the public an opportunity
to review and cor.rent on the proposed action and select the
final measures.
The owner/operator must conduct a corrective measures study
to assure that the proposed measures will be effective in correcting
threats posed by releases. Depending on the facility situation,
this study r.ay include actions to control the source of the
contamination (by preventing or mitigating the continued migration
of contamination, by removing, stabilizing and or containing the
contaminants) and/or actions to abate pr:_Lems posed by the migration
of substances from, their original source into the environment.
In some cases it will be possible for the owner/ope rater tc
analyze and present to the Agency or State only a single alternative
that meets public health and environmental requirements. This
shculi be'-cnc- when £?.*. or the State agree that the alternative
the owner/ope rator is proposing to analyze is likely to effectively
achieve corrective action goals, including health ana environmental
requirements and is technically sound. In other cases, however,
it may be necessary to analyze more than one alternative to
determine the appropriate response measure. For example, off-site
or on-site alternatives may be considered or there may be a differer.c
cf opinion as to whether 2 particular alternative the j-vr.or/c^eratjr
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nroposes to analyze would be reliable or effective in abating
threats expeditiously. In such cases, EPA or the State should
require the analysis of several alternatives to ensure that
appropriate response measures are completed on a timely basis
and that response is not delayed by a sequential analysis of
a series of alternatives.
The owner/operator must demonstrate that the response
action proposed effectively abates the threats to human health
and the environment posed by the release(s). This requires
the owner/operator to analyze the alternative or alternatives
in detail sufficient to show that the recommended measures are
effective in abating the threats posed by the release. To do so
the owner/operator must assess the alternative or alternatives
in terms of its technical feasibility (including reliability
and requirements for long term, operation ar.d maintenance), its
ability to meet public health protection requirements, its
ability to protect the environment and any adverse environmental
effects cf th -2 measures. The owner' c-srato r also should ccr.sii = r
any institutional constraints to implementation of the measures,
such a; uriuits capacity problems and potential public oppcs it.c;-.,
EPA has not yet completed guidelines on this phase of the
F.CRA corrective action program. RCRA final ra?edies will, however
be.required to meet applicable health and environmental standards
promulgated under RCRA and other laws. At regulated units,
groundwater releases are subject to the groundwater protection
standards. The groundwater protection standard consists cf the
following: (1) for any constituents listed in Table 1 cf 4C wFK
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264.94, the respective value given in that table (MCL) if the
background level of the constituent is below that given in Table
1? (2) the background level of that constituent in the groundwater;
or (3) an approved Alternate Concentration Limit. (ACL) where
approval will be based on criteria set forth in 40 CFR 26<*.94(b).
The Agency plans to issue guidance on ACLs during FY 1987. The
Agency is currently assessing the appropriate technical approach
to take to problems that cannot be addressed by existing standards.
One alternative is to establish appropriate health based standards
on a case by case basis.
EPA or the State wi11 - evaluate the owner/operator's recom-
mendation and approve or disapprove it. The financial assurance
demonstration will also be reviewed at this time. The views of
the public en the proposed measures will be considered by the
State and EPA in making these decisions.
. E. Corrective Measures Implementation
After EPA or the State selects the remedy, the owner/operator
will design anr! construct the selected response action. After
construction the appropriate measures needed to operate, maintain
ani -Jo:.:. _j.- -'::= r^r.eJLy will be taken by the owner/ operator. fnese
activities will be required by permit condition or order, and will be
performed by the owner/operator with oversight by EPA or the State.
Effecting remedies (or interim measures) at facilities that
do not have RCRA permits will, in some cases, involve creation of
new treatment, storage or disposal units. Rather than going •
through the actual process of issuing RCRA permits to such new
units, which ccul?. sucstar.tia.lly delay implementation of the"
remedv, the Arer.rv is ccr.£ i5e rir.r u = inr enforcement authorities
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and closure plan regulatory authorities to allow those units to
be constructed and operated without a formal RCRA permit. EPA
may need to amend existing regulations to provide for this
proposed approach. Such new units would nevertheless generally
be required to comply with applicable Part 264 technical standards,
and appropriate public review and comment would be provided.
If such new units are created at a permitted facility, the normal
permit modification process would be followed. Comment is specifi-
cally solicited on this proposed approach.
GUIDANCE;
RCRA Facility Assessment Guidance; Draft: 8/5/85 Final: Target--
10/86. For further information contact: Dave Fagan (202) 332-474C
RCRA Facility Investigation Guidance; Draft: Target—December, 1236
For further information Contact: Art Day-(202) 382-4680
Corrective Action Plan (model scope of wrrk for CA): Target—
September, 1906. For further inforr.atior. contact: Mark
Gilbertson (202) 3S2-4849
Interim Measures Guidance; Final: Targe t.--Sept ember, 1936
For further information contact: Jackie f-'oya (202) 382-3122
Corrective Measures Guidance: Target--Draft-Soring, 1937
For further information contact: Art Day (202) 332-4680
Guidance* on Alternate Concentration Limits; Target: Xcvernier/ !•#•=<=
For further information contact: Vernon Myers (2u2) 382—»495
Implementation of PTA Facility Assessments; From: J. Winston Por~er
To"; Hazardous Waste Division Directors, Regions I-X, August 21, L9<=6
TRAINING: RFA training was delivered to EPA Regions and States
during April-Septemier 1956.
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Management Approaches to Corrective Action
at RCRA Facilities
Facilities Seeking _ Closed Facilities and
an Operating Permit Facilities Undergoing Closure
o Interim Status Corrective o Interim Status Corrective
Action Order Action Order
o Operating Permit o Post-Closure Permit
o Enforcement Lead CERCLA Action
(§106)
o Fund Financed CERCLA Action
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III. MAMAGING THE CORRECTIVE ACTION PROGRAM
EPA and the States are responsible for management of the
corrective action program. The steps in a corrective action
will be imposed through permit conditions or through enforcement
orders. In general, a permit may be issued with a schedule of
compliance for an RFI and Corrective Measures study. After
EPA or State approval of the appropriate corrective measures,
the perrr.it will be modified to provide a schedule of compliance
for design, implementation and operation and maintenence. This
modification will be considered a major modification to the perr.i:
and will, therefore, provide for additional public involvement.
Likewise, enforcement orders should be phased with one order
being issued for the RCRA facility investigation and corrective
measures studies and another for the implementation steps after
approval of the corrective measures. The Agency is currently
developing a policy on involvement of the public in enforcement
corrective actions. Owner/operators of facilities at which the
corrective action process will be implemented over time will
also be encouraged to develop their own community involvement and
In the case of both permits and enforcement, negotiations
with the owner/operator on the scope of the initial studies and
remedy implementation will be necessary. Depending on the status
of a particular facility, Regions and States may choose to use
permit schedules of compliance to secure some stages of corrective
action and enforcement action for other stages. Where orders
are use^ in advance of oermit conditions, the schedule of compli = r.:
may later be incarcerated into the permit. Subsections A. and B-
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below give some exar.ples of how Regions and States can use
enforcer.er.t and perrr.it.ting corrective action authorities in a
complementary fashion. These management choices are shown in
Figure 2. In general, permitting authorities should be used
when the owner/operator is cooperative. When the owner/operator
is recalcitrant, enforcement .actions should be pursued.
Priorities for corrective action are established in the
annual RCRA Implementation Plan (RIP). The Agency's general
approach to assigning priorities for corrective action is to
focus the resources available to the program on those facilities
which pose the greatest overall threat to human health and the
environment. In order to implement this general policy, the
Agency has tentatively decided to target a limited number of
facilities to be dealt with intensively, rather than attempting
to implement the process simultaneously at all facilities subject
to corrective action requirements. Regions, in conjunction with
the States will, through the Facility Management Planning process,
identify a limited number of facilities in the Region for priority
attention in initiating and following through in the corrective
action process. These priority facilities will be targeted to
receive intensive EPA/State oversight, with sufficient resources
allocated for the technical, administrative and enforcement
support necessary to effectively and expedi tiously effect corrective
act-ion for those facilities. EPA recognizes that focusing the
program's resources on a limited number of higher priority
facilities will require that lower priority facilities which
nevertheless nay have substantial environmental concerns will bi
dealt with less aagressively in following through the correct iv-i
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action process. For such facilities, compliance schedules may be
drawn over longer tine frames, and/or less intensive review
given of owner/operator generated reports and data. Likewise,
at sons facilities with multiple sources of contamination, the
releases which pose the greatest immediate threat to hup.an health
and the environment nay be given priority attention, with the
remainder of the facility dealt with as a lower priority. EPA
invites comment on this proposed iTiethod of prioritizing for the
corrective action program.
As discussed above, the progression of any particular facility
through the corrective action process may vciry due to the status
of the facility. The following subsections describe consider-
ations that may be relevant when managing a corrective action
at facilities seeking operating permits and at facilities that
are closing waste management operations.
A. Facilities seeking operating permits.
Prior to issuance of an operating permit the EPA or State
should ur.dortaks a P.CP.A Facility Assessment to determine whether
there may be releases from any solid waste management 'unit at the
facility. DFA? on units being addressed by the perm.it should be
completed prior to permit issuance.
At land disposal facilities, current regulations require
that-.corrective action for ground-water releases at regulated
units be identified and designed prior to permit issuance. This is
not a requirement for regulated treatment units, such as in-
cinerators and storage units. EPA is examining the land disposal
regulations at this tire to determine whether modification should
be made to al lov.- permitting fallowing the determination that a
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release exists, but in advance of design of the corrective
action.
At a facility seeking an operating pemit., all corrective
action steps subsequent to the RFA should be compelled through
a schedule of compliance in an operating pemit when feasible
and appropriate. EPA's ultimate goal is to ensure that all
permits have enforceable schedules of compliance for corrective
action activities. If necessary, enforcement orders can be used
in advance of perr-.it issuance to compel corrective action in
response to im.m.eiiate threats or to get corrective action
investigation activities underway at a facility that is not near
enough to permit issuance to use a schedule of compliance in the
permit to secure corrective action. The use of the order ensures
that there are enforceable requirements in place. This approach
can be useful as the 1938 deadline for lar.i disposal perm.it
issuance approaches. Not all land disposal permits will be at
the same stage at the same time. In order to keep the land
fispcsal facilities moving toward 1993 permit issuance Regions
and States should consider supplementing perm.it activities by
using enforcement, orders to supper- corrective action needs
during perm.it processing.
The choice of using an order or permit to secure various
steps of corrective action at facilities seeking permits should
be nade a p?.rt of the Facility Management Planning Process. In
this process Regions and States should consider whether it is
likely that the facility will rer.ain in the operating universe
0** is ^ iV. o1 v r "i*" *"* r ° ~? i. *.*5 an ooer at i r. ~ oe rm.it. If th6 f 2.c i li t''
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is not likely to receive an operating permit it may be appropriate
to initially consider the use of an er.f o r cemer.t order to secure
initial steps of corrective action in advance of permit denial
and closure.
B. Closing Facilities
Facilities that are closing their waste management ope rati-.-.s
present a somewhat more complicated corrective action nanager^en-
problem than those that are seekir.g operating perr.its. Some
closing facilities which are subject to post-closure perrr.it require-
ments (i.e., land disposal facilities which received wastes after
July 26, 1982) nay investigate and complete all corrective' measures
under the post-closure permit. Other facility owners/operators
will be unwilling or 'unable to undertake required closure and
corrective n-.easures and will ultimately become facilities chat
must be dealt with under CERCLA or other authorities .
As with the opera-ing universe, the first step in taking a
corrective action at a closing facility is for EPA or the State
to perform a RCFIA facility assessment to identify actual or
potential releases from the facility. While t-'ne RFA provides an
idea of the scope of investigation that may be necessary a. a
facility, it does not give EPA or the State any idea of whether
a facility will have the financial ability to perform the necessary
investigations or take appropriate respor.se actions. One on tier.
is' to assess the financial status of the facility early in the
corrective action process to determine the ability of the owner/op-
erator to take necessary response actions. During FY 1937 the
Agency will be examining how to treat economically marginal faci-
lities and whether financial assessments can be a useful tool in
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this process. Such an assessment can assist in determining the
best approach to take to secure corrective action by the owner/on-
erator including use of CERCLA authorities. EPA is currently
examining tools that could-be used in making these determinations.
Using the results of the P.FA, the financial assessment (if appropria-
and other available infonr.ation on the facility, a decision en
the best approach to corrective action can be made. The faciiitv
management planning process should be used to determine the
appropriate management approach to the closing facility.
Several approaches can be taken to securing corrective
action depending on the situation at the individual facility.
The following authorities car. be used individually or in
combination with each other:
1 . Post closure permit, call in and/or issuance; Th e po s t
closure perrit application car. be called in to secure
additional information (part 27C) from the owner/operator
on the physical situation at the facility.1 A 3003(a)
crier car. be used to compel sub "ission of any ir.f~ rm = t ic r.
that is missing or deficient in the post closure :;e rm.it
application. Once secured, this information can be
used to support issuance of a 300S(h) order to compel
corrective measures or to support pest closure permit
^ A separate pest closure perm.it call in is not necessary at a
facility that submitted a penr.it application (in response to
call) and then decided to close before receiving an operating
permit. Since the post closure permit application requirements
are a subset of those required for an operating permit, it is not
necessary to initiate a separate call and experience the resulting
.six months delay before enforcing Part 270 requirements.
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issuance. The RCRA program is focusing upon closure of
regulated units via the closure plan approval process
and the issuance of enforcement orders or post-closure
permits to secure. corrective action at environmentally
significant facilities. Enforcement orders can later be
incorporated into post closure permits when appropriate
to do so.
2. 3C08(h.) orders: Many facilities in the closing
universe requiring corrective measures should be
addressed through 3CGS(h) orders. This is particularly
true for those facilities that are likely to cease
operations before fulfilling post closure obligations.
Environmentally significant closing facilities are
priority candidates for 3008(h) orders in FY 87. Use'
of a 3008(h) order to address closing facilities has
several advantages. When an orier is used at a facility
that is in an uncertain financial state, it provides
an opportunity to document whether the facility owner
is able to fulfill obligations under the order or
whether it is likely to become a site that must be
dealt with under CERCLA authorities. In this respect
it acts as a bridge to CCRCLA. Moreover, if it becomes
apparent that the facility can complete its obligations
under RCRA, the provisions of the order can later be
incorporated into the post-closure permit along with
any additional requirements necessary to complete
corrective action ob1i^ations.
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At many facilities in the closing universe it
will be difficult to determine initially whether the
company will have sufficient financial resources to
take all the appropriate corrective measures. In such
situations emphasis should be placed initially on
compelling inter in measures at the facility to abate
the most immediate problems and RCRA facility investigations
to the extent feasible. Where it is apparent that the
owner/opera tor is not financially viable and nay be a
candidate for CERCLA action, corrective action requireren-3
should be tailored to achieve as much as possible
before the o/o is no longer able to pay for the clean-
up or other associated costs. If an owner/operator
has the financial resources to take appropriate actions'
and refuses to do so, judicial action should be pursued.
3. CEP.CLA response: When a facility is clearly not able
to fulfill i-ts corrective action obligations, action
should be taken as soon as possible to deterrane whether
it should be managed under the CERCLA program. For
exar.ple, a facility that is bankrupt is a prire cani-iate
for referral to the CERCLA program. Several options
are available under CERCLA for dealing with the facilities.
In the majority of cases where the owner is insolvent,
or efforts to secure action under RCRA have been
unsuccessful, CERCLA section 104 action may be more
appropriate due to the lack of viable responsible
^arties. Ur.de r ssrticr. 1C4 2. fund-financed rerr. cval
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Contingency Plan are met (see 40 CFR 300). in general
these criteria encompass more serious threats. Fund-
financed remedial action can be pursued at facilities
that are listed on the National Priorities List. The
EPA has recently issued final criteria for listing
RCRA facilities on the N'PL and has proposed additional
criteria for listing these facilities (see 51 FR 21C5,
and 51 FR 21109, June 10, 1986).
In addition to the authorities outlined above, the closure
plan can also be a valuable tool to secure corrective action at
closing facilities. Many of the activities taken to close a
regulated unit are steps toward completion of a corrective measure.
Accordingly, closure plan development, approval and implementation
should be closely coordinated with corrective action activities
at closing facilities. Further detail ~r. how to coordinate these
activities is included in Section IV below.
IV. FEDERAL STATE PARTNERSHIP IX THE CORRECTIVE ACTION PROGRA.'-'.
As a pro-ram delegated in phases, ?.C?,.-. has always required
close coordination between EPA and the States. With the advent
of broad-based corrective action authorities, an effective
Federal/State partnership is even more important. Because the
Agency's new corrective action responsibilities derive from the
HSVJA amendments, the Federal government has responsibility for
implementing the new authorities until states are specifically
authorized for corrective action. Consequently, until states
are authorized for the new §3004(u) authority, all permits
U S, Environmental Protection Agency.
Region V, Library
230 South Dearborn Street x
C'--.. 79 Illinois 60604
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incorporating corrective action will have to be issued jointly
b'y EPA and the State. Likewise, only the Federal government is
expressly authorized to issue §3008(h ) orders requiring investi-
gation and clean up at interim status facilities. States, however,
may have similar authorities under their own laws.
EPA intends to give States a considerable opportunity to
participate in the corrective action process prior to official
authorization. Through their closure regulations, for example,
States can cornel facilities to undertake various activities to
mitigate or eliminate threats to public health or the environment
(e.g., waste re-oval, soil decontamination, capping). Many States
also have authority to conpel investigation or clean up through
non-P,C?A enforcement authorities such as public nuisance lav,-,
state water laws, or state Sunerfunds. Use of these authorities
is encouraged at EC?. A facilities provided that states use their
own authorities to achieve equivalent response as required by RC.-.A.
Given the varying authorities and responsibilities of Federal
and state governments prior to full authorization, joint Federal/st
plar.r.ir.g will be particularly crucial to program impienentat icr..
Regions and states should use the Facility Management Planni.-.r
process -~ deride on a facility-specific basis the timing cf
various corrective action initiatives, which authority (ies )
should be used to compel the initiative, and which agency will
take responsibility for implementing and overseeing the action.
Where non-RCRA state authorities are used to compel corrective
action activities, EPA will have ultimate responsibilty for
ensuring that the activities mandated are consistent with and
e c u i v a 1ffl r. t to t h ? standards im oo sec b'-r H ?".-..
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GUIDA^E: RCRA Reaut hori zat ion and Joint Permitting In
Authorized States, July 1, 1985
V. REQUEST FOR COMMENT
EPA invites .consents on the general features of this draft
strategy, as well as on the specific issues and policies which
are expressed as part-of the ' strategy. Comments should be
directed to: • .
Matt Hale
Chief, Perrr.its Branch (WH-563)
Office of Solid Waste
U.S. Environ.-, ental Protection Agency
Washington, D.C. 20450
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