EPA 910/9-90016
United States
Environmental Protection
Agency
Region 10
1200 Sixth Avenue
Seattle WA 98101
Alaska
Idaho
Oregon
Washlngan
Hazardous Waste Division
Waste Management Branch
July 1990
Northwest RCRA
Corrective Action Strategy
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TABLE OF CONTENTS
INTRODUCTION 1
RECOMMENDATIONS 3
CORRECTIVE ACTION PROCESS 7
DEFINING AND MANAGING THE CORRECTIVE ACTION PIPELINE 10
SETTING CLEANUP STANDARDS 15
SETTING PERFORMANCE STANDARDS IS
CORRECTIVE ACTION OVERSIGHT 20
OWNER/OPERATOR INITIATED CORRECTIVE ACTION 23
CORRECTIVE ACTION IMPLEMENTATION AT FEDERAL FACILITIES 25
EPA/STATE PARTNERSHIP 28
FINANCIAL ASSURANCE FOR CORRECTIVE ACTION 30
CORRECTIVE ACTION PROGRAM RESOURCES 32
BUILDING STATE AND REGIONAL CORRECTIVE ACTION 35
CAPABILITIES
LIST OF REFERENCES 38
APPENDIX 1: FACILITY ENVIRONMENTAL PRIORITY RANKING
CRITERIA
APPENDIX 2: DIFFERENCES BETWEEN CORRECTIVE ACTION
AND CLOSURE/POST CLOSURE FINANCIAL ASSURANCE
MEMBERS OF THE NORTHWEST CORRECTIVE ACTION STRATEGY WORKGROUP
Marcia Bailey, EPA
Jack Boiler, EPA (WOO)
Gary Calaba, ODEQ
Jayne Carlin, EPA
Geoff Kany, ADEC
Nina Kocourek, EPA
Brett McKnight, ODEQ
Jan Palumbo, EPA
Rick Renaud, WDOE
Mike Rupert, IDHW
Margaret Small, EPA
Pat Springer, EPA
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INTRODUCTION
Purpose of Strategy
The passage of the 1984 Hazardous and Solid Waste Amendments (HSWA) to
the Resource Conservation and Recovery Act (RCRA) provided statutory authority
to the U.S. Environmental Protection Agency (EPA) to compel appropriate
corrective action at RCRA-regulated hazardous waste facilities. Corrective
action requires the investigation and clean-up of contamination at or from a
facility, including releases from past disposal practices. Since that time,
the Northwest RCRA Program has taken a progressive approach to protecting and
restoring its environmental resources through aggressive corrective action
activities. While previously known as a "cradle to grave" program, RCRA now
extends "beyond the grave." Corrective action investigations have been
initiated at more than 70 facilities in the Northwest1. In working with the
facilities to develop effective corrective action programs through permitting
and/or enforcement, the Northwest RCRA Program has developed significant
experience with many issues attendant to the investigation and clean-up of
contaminated sites.
The Northwest RCRA Program includes the states of Alaska, Idaho, Oregon,
and Washington and EPA Region 10. This strategy delineates the collective
EPA/ State principles guiding the Northwest Corrective Action program and major
corrective action decisions such as prioritization of the investigation and
clean-up of RCRA facilities and identification of clean-up standards. The
primary principle guiding the Northwest Corrective Action program is to
address the "worst case first" based on the priority ranking scheme described
in this document.
Background
Magnitude of Corrective Action Needs in the Northwest
In 1990, there were approximately 160 known RCRA-regulated treatment,
storage and land disposal facilities (TSDFs) in the Northwest. Each facility
is anticipated to contain several solid waste management units ( SWMUs ) ,
resulting in a total number of SWMUs in the thousands. The RCRA-regulated
TSDF universe will continue to grow as more facilities are discovered during
routine inspections or through complaints. Furthermore, the implementation of
the Toxicity Characteristic Rule (published in the Federal Register on March
29, 1990) which significantly expands the definition of hazardous waste
could double the number of regulated facilities. More facilities are
expected to enter the universe with future federal rules (e.g., wood treating
regulations as well as independent state authorities which enlarge the State
RCRA programs). Corrective action activities may need to be initiated at 80%
of these facilities2.
EPA estimates costs for clean-up actions at the existing RCRA-regulated
TSDF universe to be as high as 10 billion dollars nation-wide. Given current
funding levels, EPA estimates that it will take 20 to 50 years to complete
corrective action activities for the known existing universe . Thus the
Northwest RCRA Program could potentially equal or exceed the magnitude of
the HWMDS data base
2From the draft RCRA Implementation Study (April, 1990)
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the Northwest Superfund program in terms of clean-up activities at hazardous
waste sites. Yet, the resources devoted to implementing corrective action at
RCRA-regulated facilities are significantly less than the resources devoted to
the Superfund program. Nevertheless, expectations are high both from the
public, which wants to see rapid progress on clean-up, and from Congress,
which is likely to closely scrutinize the corrective action program when
debating RCRA reauthorization.
Balancing Prevention and Clean-Uo
Corrective action is one aspect of a multi-faceted hazardous waste
program. A balance must be made between the need to maintain a strong
preventive program to avoid future environmental problems (e.g. waste
minimization, permit issuance, compliance monitoring and enforcement) and the
need to clean up the results of mismanagement, particularly when it presents a
threat to human health and the environment.
The core RCRA program is a prevention program intended to minimize the
need for future corrective action. Weakening the prevention program to
finance clean-up problems would be short-sighted. The balance between the
prevention and corrective action programs must be considered in all major
planning and budgetary decisions in the RCRA program. The scope of this
strategy is limited to the corrective action portion of the Northwest RCRA
program.
From "Dingell Ground Water Monitoring Hearing Responses to Follow-Up
Questions" (8/16/89)
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RECOMMENDATIONS
The Corrective Action Proceaa (pages 7-9)
* Streamline the corrective action process wherever possible, e.g.,
conduct several steps simultaneously or abbreviate certain steps.
Specific ideas on how to streamline the process are presented in the
section entitled "Corrective Action Process."
* Review the entire facility at some point in the corrective action
process to assure that eventually the entire facility will be addressed
for corrective action. This step is usually conducted as part of the
RCRA Facility Assessment early in the corrective action process.
* If an enforcement order is issued exclusively for an expedited
investigation or interim measures implementation, ensure that the entire
facility is subsequently addressed through an amended order, separate
order or permit.
* Develop a model enforcement order for RFI/interim measures that ensures
that, where applicable, 40 CFR Part 270 information requirements are
considered in the process of finalizing the enforcement order.
* Where appropriate, issue corrective action enforcement orders with the
performance and clean-up standards explicitly stated (as opposed to the
current practice of detailing each step of the corrective action
measures implementation in the order).
Prioritization of Facilities for Corrective Action (page 10)
* During the annual State/EPA Agreement process, review and update the
environmental priority rankings and corrective action oversight rankings
as new information becomes available. Highest priority facilities
should be moved to the top of the list.
Authorities for Initiating Corrective Action (pages 10-12)
* Use the following general guidelines when determining whether to use
permitting or enforcement authorities to initiate corrective action.
- Use enforcement authorities for uncooperative
owners/operators, for corrective action activities requiring
short term oversight and where prompt action is necessary.
Use the permitting process for cooperative owners/operators,
for long term clean-up once the corrective action measures
have been selected; and for characterization of sites
needing active operating permits.
Authorities may be varied depending upon available resources
and individual circumstances.
Determining Size of Corrective Action Pipeline (page 12-14)
* Strive to achieve a "steady state" in the corrective action pipeline in
terms of level of effort and allocation of resources. The level of
effort and State/EPA resources spent on entering the corrective action
pipeline through initiating investigations (RFIs) should approximately
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equal the level of effort and resources exiting the pipeline, where
final corrective action measures have been approved and are underway.
Conducting RFAs and interim corrective action activities are considered
outside the corrective action pipeline for the purposes of achieving
"steady state."
* The goals listed below (which are based on the 1990 RCRA TSDF universe)
are not State or EPA commitments. Commitments will be made during the
SEA process.
Conduct RFAs on facilities identified in the 1990 RCRA TSDF
universe by the end of 1992. Conduct RFAs on newly
discovered facilities within one year of discovery.
Stabilize the risks presented by high priority sites through
interim corrective action measures. Interim measures should
be underway within 6 months after EPA/State discovers the
contamination at sites where contamination could pose a
significant risk to human health and the environment. Upon
discovery of contamination, encourage owners/operators to
immediately initiate their own environmentally sound
measures to stop the contamination from spreading and to
cleanup the existing contamination.
Initiate the necessary site investigations to determine
extent of contamination (which provides the basis for
developing interim and/or final corrective action measures)
on all high priority facilities by the end of 1993.
Clean-up Standards (pages 15-17)
* Include clean-up standards published in Chapter 8 of the RFI Guidance in
RCRA permits and enforcement orders (use the most recent IRIS numbers).
Use detection limits if no health- or environment-based levels are
available.
* Schedule lab, bench scale treatability studies and pilot programs in
RCRA permits and enforcement orders.
Performance Standards (pages 18-19)
* Include system performance standards to determine the adequacy of clean-
up in the permit or enforcement order. The following tests and
information can be evaluated to determine if performance standards are
being met: residual chemicals in the soil, water and air; mass balance;
toxicity tests; and mobility tests.
* Participate in EPA HQ's development of policy or guidance to standardize
procedures for determining clean-up adequacy.
Corrective Action Oversight (pages 20-22)
* Use the facility environmental priority ranking scheme (see Appendix 1)
and accompanying guidelines to determine what level of oversight should
be used for each facility in the RCRA TSDF universe.
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Use of Owner/Operator Initiated Corrective Action (pages 23-24)
* Prepare and make available to the regulated community a package which
would include:
A summary of the owner/operator-initiated corrective action
program, including some discussion on performance standards.
- A list of the most current guidance, polices, and regulations on
corrective action, which if followed should reduce the likelihood
that field or lab work will need to be repeated or exceeded.
* Investigate whether a formal policy is needed on type and level of
EPA/State oversight for owner/operator-initiated corrective action.
* Explore types of incentives to encourage the regulated community to
initiate corrective action.
Corrective Action at Federal Facilities (pages 25-27)
* When an Inter-Agency Agreement is being negotiated at Superfund National
Priority List sites, EPA/State must assure that the roles of RCRA and
CERCLA are clearly states in the IAG and that all RCRA regulated units
and SWMUs of concern are addressed under either RCRA or Superfund.
* The level of corrective action oversight by RCRA staff should be
determined during the IAG process. RFAs should be conducted prior to
IAG negotiations.
EPA/State Partnership(pages 28-29)
* The following items should be discussed during the quarterly compliance
meetings and agreements should be documented:
EPA/State corrective action responsibilities at each facility to
"be addressed during that year, including degree of EPA oversight
over each facility and over the State;
- Permitting process or the enforcement process to use during the
various stages of the corrective action process; and
Corrective action reporting requirements.
* Additionally, during the quarterly compliance meetings, EPA and the
State should reach agreement on which authority will be used to drive
the clean-up process at each facility during that year (also known as
the "Sites Agreement.") Most existing facilities will conduct
corrective action activities under RCRA authorities (federal or
authorized State); however, newly discovered facilities (i.e., illegal
TSDFs) may be allowed to conduct clean-up activities under other State
authorities and mechanisms as long as these mechanisms meet substantive
RCRA requirements. Substantive "base" RCRA program requirements for
regulated units include at minimum applicable ground water
monitoring, financial assurance and closure/post-closure requirements.
* Regardless of the authority used to compel corrective action, use
proposed 40 CFR Part 264 Subpart S rules (as guidance until they become
final) to determine substantive RCRA requirements for corrective action.
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Financial Assurance (pages 30-31)
* Use October 24, 1986 proposed rule on corrective action financial
assurance as general guidance.
* Require a financial demonstration within a certain period of time from
the effective date of order, issuance date of the permit and/or date of
corrective action remedy selection. For companies with unique
situations, use a flexible case-by-case basis such as a financial
demonstration after each step of the corrective action process (i.e.,
just prior to RFI, before the CMS, etc.).
* Use flexibility with respect to the pay-in period for trust funds for
closing economically marginal facilities which did not establish
financial assurance during their operating lives.
* Financial assurance requirements should cover corrective action
activities beyond the facility boundary.
* If the owner/operator cannot provide an adequate demonstration of
financial assurance, then the owner/operator should be considered in
compliance with financial assurance requirements if the State assumes
legal responsibility for compliance or assures that funds will be
available.
Resources for Corrective Action (pages 32-34)
* Concentrate efforts on stretching corrective action resources to assure
that at least the most environmentally significant facilities are
addressed. Pursue use of the following corrective action funding
mechanisms: (1) State access to EPA contract funds to conduct corrective
action activities; (2) use of Federal Superfund resources to conduct
certain RCRA corrective action activities such as RFAs; (3) redirection
of contractor funds to State grants; and (4) where applicable, use RCRA
3013 or CERCLA 104 or 106 to reimburse or recover EPA's oversight costs.
Building State and Regional Capability (pages 35-37)
* Assemble a Northwest Corrective Action Implementation Workgroup to
administer special corrective action projects such as those discussed in
this Strategy. The Workgroup should be the focal point for monitoring
ongoing corrective action implementation issues in the Northwest.
* Continually seek and obtain appropriate training for RCRA staff and
managers.
* Publish a quarterly RCRA newsletter which would include the Northwest
RCRA Program's corrective action activities.
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OTB CORRECTIVE ACTION PROCESS
Over the past few years, the Northwest RCRA Program has gained much
experience in the process of corrective action. Limited corrective action
resources have been stretched by placing the burden of achieving cleanup on
facilities, while the federal and state environmental agencies focus their
efforts on overseeing the corrective action process.
The goal of the corrective action process is to protect human health and
the environment. The problem is initially defined by characterizing the
nature and extent of releases of concern to soil, air, surface water and/or
ground water at a site. Then a solution which will prevent exposure and/or
clean up the releases is developed.
The Phases of Corrective Action
The four phases of the corrective action process are described below:
Phase 1 RCRA Facility Assessment (UFA)
EPA/State identifies all solid waste management units (SWMUs)_ and
areas of concern where releases may have occurred based on
information received by the facility, and review of aerial
photographs, property history and other EPA/State files (see RFA
Guidance for a comprehensive list). EPA/State reevaluates the
environmental priority ranking based on information from the RFA.
The facility must make a good faith effort to supply the
information on all past practices based on facility records and
employee interviews. Where appropriate, EPA/State should allow
the facility to review the draft RFA report to assure that the
information is accurate (and/or undertake additional
investigations on uncertain SWMUs or releases) prior to entering
"the RFI stage.
Phase 2 RCRA Facility Investigation (RFZ)
The facility characterizes the nature and extent of any soil, air,
surface water and/or ground water contamination from SWMUs and
other areas of concern. EPA/State accepts, modifies and accepts,
or rejects the RFI workplan. Then EPA/State evaluates the RFI
results to determine if the site is adequately characterized.
RFIs can either address all SWMUs or use a phased approach where
the worst SWMUs are addressed first.
Exposure Information Report (EIR)
The facility identifies nearest populations and any sensitive
biological receptors through a literature search, field
investigations, other agencies' records, and short term toxicity
tests, or other lab tests or bioassays, as requested by the
EPA/State. EPA/State evaluates the EIR to determine if the
potentially exposed population of the site has been adequately
characterized.
Proposed Subpart S Rule
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Based on the RFI and EIR, EPA/State reevaluatea the environmental
priority ranking for further action and decides whether to require
interim corrective action measures.
Phase 3 Corrective Measures Study (CMS)
The facility develops a plan for cleaning up the soil and ground
water contamination. EPA/State accepts, modifies and accepts, or
rejects the plan, and develops the performance standards for
cleaning up the site.
Phase 4 Corrective Measures Implementation (CMI)
The facility cleans-up the contamination and conducts confirmative
sampling. EPA/State monitors the process and determines whether
the facility is meeting the performance standards.
At each phase of the corrective action process, the following items
should be evaluated by EPA or the States
(1) Whether the site is adequately characterized or if further study
is needed;
(2) Determination of the environmental priority ranking for that next
action when further action is needed;
(3) How to involve the public; and
(4) Whether interim corrective action measures are necessary and what
type of measures to use.
It is important that the EPA/State, the facility, and the public are
comfortable with the level of information on which decisions are made, and
with the level of protection that a solution provides.
Recommendation; Streamlining the Corrective Action Process
The corrective action process as outlined is one approach to achieving
the goals of site characterization and clean-up. The steps of the corrective
action process may be streamlined in a number of cases or the corrective
action process may proceed more quickly in one area of a facility than in
another. This may occur at large sites, or at sites where interim measures
are appropriate. Investigations may be iterative (especially the
characterization of ground water contamination). RFIs and corrective measures
can be conducted simultaneously at a site. In some cases, where a solution is
obvious to all parties, a CMS may be minimal. At other sites, interim
corrective measures may be necessary before the EPA/State has completed the
RFA or the facility has completed the RFI. In other cases, the EPA/State may
require the facility to proceed with a full scale RFI before the RFA is
completed and/or the EPA/State may revisit the RFA after the RFI is finished.
It is important that the EPA/State take steps to proceed in a timely fashion
to define the problem and the solutions.
Recommendation; Addressing the Entire Facility
It is imperative that EPA/State reviews the entire site at some point in
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the corrective action process. If an enforcement order is issued for an
expedited investigation or for interim measures implementation, then EPA/State
must still conduct an RFA to assure that the entire facility is addressed
through an amended order, separate order or permit. If an enforcement order
is issued exclusively for an expedited investigation or interim measures
implementation, ensure that the entire facility is subsequently addressed
through an amended order, separate order or permit.
It is recommended that a model enforcement order for RFI/interim measures be
developed that ensures assure that, where applicable, 40 CFR Part 270
information requirements are considered in the process of finalizing the
enforcement order, the entire facility is addressed.
Recommendation; Standard Condition in Order for Performance and Cleanup
Standards
For certain facilities, EPA/State should be able to issue corrective
action enforcement orders where the performance standards and cleanup levels
are explicitly stated, as opposed to detailing each step of the corrective
action measures implementation in the order. This would result in
significantly reduce EPA/State oversight of corrective action order
implementation, while assuring that the facilities are being cleaned-up
sufficiently to protect public health and the environment. Therefore, more
facilities will be able to enter the corrective action pipeline without a
major additional resource burden on EPA/State. Additionally, this would
encourage the facilities to develop innovative and cost-effective cleanup
technologies.
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DEFINING AND MANAGING THE CORRECTIVE ACTION PIPELINE
Prioritization of Facilities for the CA Pipeline
The Northwest RCRA program has developed a priority ranking scheme to
assure that the most environmentally significant facilities are addressed
first. Rating the environmental significance for a particular facility is
determined by examining these major categories: 1) extent of contamination;
2) toxicity of waste stream(s); and 3) facility location with respect to
potential of receptor exposure. In addition, the following categories are
also considered: 4) enforcement history; 5) facility's financial status; 6)
extent to which the nature of releases are known; 7) level of public interest;
8) complexity of the cleanup; and 9) capability of the facility to conduct
cleanup activities.
An environmental priority ranking system has been created to prioritize
facilities for RCRA corrective action activities. In the ranking system, each
facility is a given numerical score which reflects its environmental priority.
Using the criteria provided in Appendix 1 as a general guideline, those
facilities receiving a score higher than 28 points are classified as high
priority; those facilities scoring between 17 and 27 points are classified as
medium priority and those facilities receiving scores 16 points and below are
classified as low priority.
However, for prioritization of State and EPA RCRA corrective action
workloads, other factors may also be considered such as facilities where
corrective action has already been initiated; statutory deadlines; facilities
where State or EPA Superfund activities are already underway at the facility;
magnitude of contamination; and unique state and regional concerns. RCRA
facilities where other programs are taking the lead for cleanup activities
usually will not be ranked for the purpose of RCRA corrective action (see
"Corrective Action Implementation at Federal Facilities" for the discussion on
RCRA facilities on Superfund's National Priority List). Therefore, the final
environmental priority ranking should be determined by EPA and the State
during the annual SEA process.
Recommendation; Where Prioritization Takes Place
As more information becomes available, the environmental priority
ranking for the facilities will be reviewed and updated during the SEA
process. The ranking criteria shown on Appendix 1 should be used to assure
that the highest scoring facilities are given priority attention. The
environmental priority ranking process is not intended to cause major resource
moves or grant equations within the Northwest States or EPA.
Managing the Corrective Action Pipeline
Use of Permitting vs Enforcement Authorities
Three vehicles can be used to initiate corrective action: the
permitting process, an enforcement order or owner/operator initiated
corrective action. Owner/operator initiated corrective action is discussed
under "Owner/Operator Initiated Corrective Action" The question as to whether
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to employ compliance or permitting authorities and resources to initiate
corrective action can be complex. The following discussion cites federal
authorities. It is understood that the states may have alternative
authorities at their disposal. For purposes of this document, enforcement
authority refers to 3008(h) orders and permitting authority refers to the
provisions of 3004(u) of HSWA. In addition, EPA can use RCRA 3007, 3013 and
CERCLA authorities, where appropriate, to initiate corrective actions.
All permits, including post-closure permits must address corrective
action. Post closure permits are required for any landfill, waste pile,
surface impoundment or land treatment unit which received waste after July 26,
1982, or which ceased the receipt of wastes prior to that date but did not
certify clean closure until after January 26, 1983. A post-closure permit is
not required if a unit clean closes by removal in accordance with the 40 CFR
Part 264 requirements and demonstrates equivalency pursuant to 270.(c)(5).
Land Disposal Facilities
A majority of the land disposal facilities in the Northwest have been
issued RCRA permits or have ceased land disposal operations. Any new land
disposal facilities must be permitted prior to operation. Illegally operating
facilities must cease their land disposal operations and should be generally
be handled initially under an enforcement order for closure of the regulated
units, site characterization, and interim measures, as appropriate.
Alternatively, closure and corrective action may be initiated through the
permitting process. Permits should be issued for post closure care and long
term closure after a site has been characterized and/or corrective action
measures have been selected.
Operating Treatment and Storage Facilities (TSFs)
Operating storage and treatment facilities (TSFs) will eventually
receive permits, through which corrective action will be initiated as
necessary. However, interim status TSFs are also subject to 3008(h)
authority, and this authority may be used prior to the permit issuance, if
appropriate.
Closing Treatment and Storage Facilities (TSFsl
If a determination has been made that there has been or is a release of
hazardous waste or hazardous constituents into the environment from a closing
TSDF, then a Section 3008(h) order may be issued if that facility is currently
under interim status, once had interim status, or should have had interim
status.
Post-closure permits are not required for regulated units which clean
close (40 CFR Part 264), and therefore a RCRA Facility Assessment (RFA) must
be completed and a 3008(h) order issued (if necessary) prior to termination of
interim status.
Where Use of Permitting or Compliance Authorities is Applicable
In many cases, both the compliance or permitting authority may be
applicable to the site, and a choice must be made as to which to use for
initiation of corrective action (e.g., interim status land disposal facilities
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subject to the post-closure care requirements). It should be noted that under
current regulations, post-closure permits are required even where a facility
has closed under interim status and an order has been issued to address
corrective action unless the facility has clean-closed by removal in
accordance with 40 CFR Part 264 standards and demonstrates equivalency
pursuant to 270.(c)(5). The order provisions could be incorporated into the
post-closure permit, as appropriate.
The following items should be considered when both enforcement and
permitting authorities are applicable at closing facilities:
The Cooperation of the Owner/Operator
Recalcitrant owner/operators may be more responsive to
an order, particularly a unilateral order, although
appeals may be time-consuming. Cooperative
owner/operators may respond well to the post-closure
permit process.
Projected Length for Regulatory Oversight
In general, enforcement authorities are less
well-suited for activities requiring long-term
oversight, whereas permits are designed to address
long-term activities.
Timing of Corrective Activity
An enforcement order may be more appropriate where a
prompt action is necessary and where a post-closure
permit is not scheduled to be issued in the near
future.
'Issuance of Permits
In general, a permit should be issued when the
corrective action measure is ready for implementation.
In addition to the above items, a very important consideration is
resource management. To expedite the initiation of corrective action,
permitting and enforcement resources must be weighed on a site-by-site basis.
Where both authorities exist, it may be determined that an enforcement action
would be most expedient, to be followed later by a post-closure permit
(remembering that the order will not obviate the requirement for a permit,
unless closure by removal has occurred). In some situations, workloads may
preclude the use of one or the other authorities in a timely manner.
Many facilities where corrective action is initiated through an order
may eventually require permits. Therefore, any enforcement order which
initiates a corrective action investigation should strive to meet the
substantive requirements for site characterization, described in 40 CFR Part
270 regulations.
The Northwest states and EPA Region 10 ideally should work together in
making these individual determinations, remembering that there is no
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prescription for initiating corrective action when multiple authorities and
resources exist.
Determining Size of Corrective Action Pipeline
The corrective action pipeline is defined as the corrective action
activities which require major EPA/State effort. Specifically, facilities
enter the corrective action pipeline when RCRA Facility Assessments are
initiated and exit the pipeline when EPA and/or the State have approved the
corrective action measures and the corrective action measures are underway.
EPA/State will continue to oversee corrective actions which are underway;
however these activities are considered "post-corrective action pipeline."
Even when corrective measures are underway, a facility may re-enter the
pipeline if further contamination is discovered or if the measures are found
to be inadequate and require modification.
The Northwest RCRA program will strive to achieve a "steady state" in
the corrective action pipeline with respect to level of effort and allocation
of resources for all major corrective action activities. The level of effort
and Agency resources spent on entering the corrective action pipeline through
initiating investigations (RFIs) will be approximately equal to the level of
effort and resources exiting the pipeline, where final corrective action
measures have been approved and are underway. The exceptions to this goal
are conducting RFAs and interim corrective action activities. These
activities will be conducted within a reasonable time from date of discovery
of the facility or of the contamination.
Specifically, the RCRA Northwest Program will strive to conduct the
following activities:
* Conduct RFAs on facilities identified in the 1990 RCRA TSDF
~universe by the end of 1992. Conduct RFAs on newly
discovered facilities within one year of discovery.
* Stabilize the risks presented by all high priority sites
through the implementation of appropriate interim corrective
action measures. Interim corrective action measures should
be underway within 6 months after EPA/State discovers the
contamination at sites where contamination could pose a
significant risk to human health and the environment. Upon
discovery of contamination, EPA/State encourages
owners/operators to initiate their own environmentally sound
measures to stop the contamination from spreading and clean-
up the existing contamination.
* Initiate site investigations to determine the extent of
contamination (to provide the basis for developing interim
and/or final corrective action measures) on all high
priority facilities by the end of 1993.
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Although not listed as a specific goal, the Northwest RCRA Program will
continue to conduct corrective action activities on medium and low priority
facilities.
The goals listed above are not State or EPA commitments. Commitments
will be made during the quarterly compliance meetings, SEA process etc.
Determining the number of corrective action activities which may be
accomplished in a given year will depend on a variety of factors such as
resources available, complexity of the site, and experience of the staff.
Historical information, workload factors in the workload models and knowledge
of the site will assist in selecting facilities and projecting the resources
required to conduct the necessary corrective action activities.
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STANDARDS
The process of environmental monitoring and clean-up is not simple. All
of the uncertainties associated with environmental sampling, analytical
chemistry methodologies (including quality assurance and quality control),
human health effects of exposures to substances environmentally available at a
site, cost, time, human emotions and political imperatives conspire to prevent
the accomplishment of this task.
Often facilities require some incentive (such as an enforcement order
with a penalty) to conduct the hydrogeologic characterization, and the
sampling and analysis necessary to accomplish this task. However, by the time
the site is characterized to the satisfaction of all interested parties (which
may include the facility, State, EPA, local agencies, Indian tribes,
environmental groups, and the public), all parties are usually in agreement on
a clean-up approach (including the scheduling of lab and pilot tests, clean-
up goals and system performance standards.)
Recommendation* Clean UP Standards
The Northwest RCRA Program recommends using clean-up standards published
in Chapter 8 of the RCRA Facility Investigation Guidance (Interim final, May
1989 ) . These standards should be verified through the Integrated Risk
Information System (IRIS) prior to use and should be evaluated against other
environmental receptors. These standards are based on health or environmental
levels which have undergone EPA peer review and use standard risk assumptions.
In the near future, EPA-HQ will be updating the RFI Chapter 8 levels quarterly
by applying the standard exposure assumptions to IRIS so that the most current
values are readily available.
Clean-up standards for ground water are called "Ground Water Protection
Standards. "" clean-up standards for soil are called "Soil Clean-up Levels."
The clean-up standard for naturally occurring chemicals (such as some metals)
are established by EPA/State based on the quantifiable background levels. For
chemicals not found in background, the clean-up standards are based on the
following:
1. MCL- Maximum Contaminant Levels, established under the Safe
Drinking Water Act (10 x MCL for soil)
2. RSD- Risk Specific Dose, carcinogenic potency factors set
at the 10~6 risk level
3. RfD- Reference Doses set at the 10~* risk level for
chronic, non-carcinogenic health effects
4. WQC- Water Quality Criteria - Fresh water or marine water
concentrations for acute or chronic exposure or for
human exposure based on water and/or water and fish
ingest ion
5> other state or local requirements or environmental
standards identified or developed in the facility's
Exposure Information Report
6. QDL, PQL, or MDL- The Quantifiable Detection Level,
Practical Quantification Limit
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or Method Detection Limit, based on SW 846 for
the constituents if no health or environment
based level is available, or if the health or
environment based level is below the QDL.
The most conservative applicable environmental or health standard (based
on RSD, Rfd, WQC, state or local requirements, or an environmental standard
identified or developed in the Exposure Information Report) should be applied.
The QDL is not a standard, but is the practical limit of detection using the
standard analytical methods. The QDL should be used if no health- or
environment- based level is available, or if the health- or environment- based
level is below the QDL.
If the QDL is above the health-or environment-based standards, clean-up
standards may be set for other constituents of the contamination. In
creosote, for example, there are a few carcinogens with health-based standards
below the QDL and other hazardous constituents without health-based standards.
To be most conservative, the Ground Water Protection Standards and the Soil
Clean-up Levels would be established at the QDL for all the constituents.
Where multiple contaminants are found, the synergistic (combined) effects may
be taken into account in setting more stringent standards. However, for the
most part these effects are unknown, and the additive effects should be within
4 7
the acceptable risk range (10 to 10 ) unless the MCL or QDL is too high.
Other limits which should be evaluated for applicability include the
National Ambient Air Quality Standards, TSCA requirements, and State or local
regulations.
RCRA permits and enforcement orders should incorporate the clean-up
standards described in the RCRA Facility Investigation Guidance and IRIS for
clean-up of ground water and soil. The use of standardized exposure
assumptions for ingestion of water and soil, and for inhalation of air
streamlines the setting of clean-up levels and avoids an inconsistent and time
consuming site-by-site risk assessment approach.
By setting clean-up standards and by scheduling implementation of lab
and bench-scale treatability studies in the RCRA permits and enforcement
orders instead of mandating which technologies must be used, the
responsibility for developing innovative and cost-effective technologies
belongs to the facilities responsible for the releases. Proper environmental
assessment of the extent of the releases, containment to prevent further
releases, and expedited clean-up of uncontained releases (usually off-site
releases) is key to assuring effective clean-up. Owners/operators (perhaps
with an eye toward the cost of equivalent Superfund clean-ups and toward
future liabilities) generally have been willing to take on this
responsibility, and to take a pro-active approach to innovative technologies.
This recommended approach is consistent with the draft Subpart S
corrective action regulations, and with the present regulatory framework for
alternate concentration limits (ACLs), clean-up levels, and clean closure.
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Clean closure applies to regulated units (e.g., surface impoundments, waste
piles and land disposal units). To be clean-closed, all hazardous waste
including waste residues, contaminated subsoils, contaminated structures and
equipment must be removed to levels that would not pose health risk. In
evaluating soil clean-closure levels, the potential of contamination to
migrate to ground/surface water and air must be considered. Clean closure
allows the owner/operator to close the regulated unit with no post-closure
monitoring or maintenance requirements. These same standards are used under
the corrective action program.
Facilities have so far accepted the stringent clean-up standards because
the EPA/State allows flexibility in use of technologies and in timing of the
implementation to meet these standards. The facility is held responsible for
the clean-up, and the regulatory agencies focus their efforts on determining
whether the facility has adequately characterized the problem and on
monitoring the corrective action progress. The facility makes the major
decisions regarding which ground water pump-and-treat and/or containment
activities to implement. The agencies review these decisions to assure that
all agency concerns have been addressed and then accept, reject, or modify and
accept the plans. Where best demonstrated available technology (BOAT) has not
been developed to meet those standards, facilities are responsible for
conducting lab and treatability studies.
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SETTING PERFORMANCE STANDARDS
In addition to the clean-up standards, system performance standards are
set. The system performance standards are designed to assure that in the
course of conducting corrective activities, the facility does not cause
unpermitted releases to the air, soil or water. For example, the ground water
performance standard may require the facility to contain a ground water plume
and demonstrate that the entire plume is being withdrawn (not spread) and
cleaned up. The achievement of this performance standard is verified through
monitoring of the chemicals and water levels in the ground water.
The facility is also responsible for conducting lab and pilot scale
treatability studies, and developing an effective remedy. The EPA/State are
responsible for monitoring the remedies and assuring that the remedies are
protective of human health and the environment. The clean-up standards and
system performance standards are contained in the RCRA permit or enforcement
order.
Before the facility begins clean-up activities using a new technology,
the facility must demonstrate through a lab or pilot program that the solution
will be effective. Additionally, the facility must demonstrate that there
will be no uncontrolled releases of concern in the field application.
The use of the following tests and evaluation procedures to monitor the
lab scale pilot program or full scale remediation must be tailored to the .
clean-up technology proposed:
o Chemical sampling and analysis of soil, sludge, water and
air including quality assurance and quality control
procedures (SW 846 and contract lab procedures).
o Mass balance (based on chemical monitoring, carbon labeling,
etc.) to determine how the chemicals dissipate (into the
air, water, soil) and into what they degrade (substances
which are more or less toxic).
o Toxicity tests to determine the degree of residual toxicity
after treatment of the soil and/or ground water (soil
bioassays, acute and chronic toxicity tests, microtox, Ames
test, short term toxicity tests).
o Mobility (stability tests, freeze/thaw tests, EP toxicity
tests, toxicity characteristic leaching procedure).
o Water level monitoring to determine the influence of a
groundwater pumping system.
Each of these tests has variables including cost, accuracy, reliability
and reproducibility (quality assurance and quality control). These tests are
currently the only established guidelines for determining the adequacy of the
clean-up efforts.
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Recommendation; Setting Performance Standards
Performance standards should be included in order or permit actions.
The Northwest RCRA Program should use the currently available tests for
determining the adequacy of the clean-up, and participate in EPA HQ's
developments of policy or guidance to standardize procedure for determining
clean-up adequacy.
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CORRECTIVE ACTION OVERSIGHT
Definition of Corrective Action Oversight
As corrective action work progresses at RCRA facilities, the number of
facilities requiring State, EPA or joint oversight (and concomitant costs)
will continue to grow. The Northwest oversight philosophy must strike a
balance between our (state and federal) responsibility as governmental
agencies charged to protect the environment and the need to place an
appropriate burden of responsibility and accountability on facility owners and
operators. Due to limited governmental resources, oversight must be conducted
in such a way that recognizes the need for varying levels of scrutiny based on
factors such as the severity of environmental harm and characteristics (e.g.,
financial status, compliance history) of the owner/operator.
Corrective action oversight is defined as the various activities
performed by the agency(ies) (Federal and/or State) relative to the corrective
action process. Oversight activities include:
* Mandatory Agency requirements such as conducting RCRA Facility
Assessments (RFAs), site inspections and Comprehensive Groundwater
Monitoring Evaluations (CMEs) (where applicable); and
* Other activities depending on level of Agency oversight such as sit?
visits, review of documents, preparation of comments, approvals or
disapprovals of submittals, collection and analysis of split samples,
negotiations, contract management including review of contractor
document s, etc.
Some facilities may require a relatively small degree of oversight by
the agency (ies) due to a relatively low environmental hazard from the types of
wastes which are handled or from good waste management practices by the
facility. Other facilities may deserve a maximum amount of oversight due to
the complexity of the site and waste stream, a volatile enforcement history,
high environmental hazard and/or poor past waste management practices.
Oversight activities can be performed by a variety of agency staff. It
may be beneficial if the person preparing the permit and/or enforcement action
can also be involved with the oversight activities. In this way he/she can
gain the most information about the facility, and the enforcement
action/permit will be effective by addressing the most pressing concerns.
However, workload constraints may require that contractors do at least some of
the oversight activities such as preparing RFAs and reviewing facility
submittals. In the case where contractors are performing corrective action
activities, EPA (and/or the State) still has the ultimate responsibility for
the quality of contractor-generated products.
Recommendation; Determining Level of Corrective Action Oversight
Two main steps are used in determining how much oversight a particular
facility should receive. The first step is to rate the facility in terms of
its environmental significance (see Appendix 1). That rating (high, medium or
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low) from Step 1 (and described on page 11 "Prioritization of Facilities for
the Corrective Action Pipeline") is then used to determine the amount of
oversight. Generally, EPA/State will use a low level of oversight for
facilities with low environmental hazard and a high level of oversight for
facilities with high environmental hazard. For convenience, the level of
oversight has been broken into three categories: High, Medium, and Low.
Additional levels may be included if useful.
High: The facility receives attention by the agency(ies) on a continuous
basis. Oversight activities may include:
* A close review of all documents submitted;
* Frequent site visits, particularly during site
characterization studies, including appropriate inspections
such as comprehensive groundwater monitoring evaluations
(CMEa), operation and maintenance inapections(O & Ms),
laboratory audits, and split sample events (sufficient
amounts of split samples should be taken to assess the QA/QC
performance of the facility);
* Close interaction between facility consultants, the
owner/operators, and the agency(ies) during the evaluation
of the clean-up alternatives.
This level is extremely resource-intensive, and would require nearly
continual involvement by at least one EPA/State staff member. Workload
estimates for this level of oversight range up to 0.5 FTE.
Medina: Oversight activities at this level could include:
* A complete review of all documents submitted to the
agencies, but the field oversight activities are scaled back
from high-level oversight;
* A review of the QA/QC performance of the sampling program
performed by the facility, including split samples from a
sufficient number of sampling events;
* Conducting a CME for ground water monitoring systems prior
to granting any permits, or prior to the resolution of any
enforcement actions.
With this level of oversight, EPA/State relies to a great extent
on certification by an independent professional engineer or
registered geologist that particular performance standards have
been met, and that the data submitted is correct and
representative. Workload estimates for this level of oversight
range up to 0.25 FTE.
LoW. This level is applied to facilities that either are a low priority
for further action by EPA/State, or for facilities which are
initiating their own cleanups and EPA/State does not have the
resources to provide full oversight.
The Agency's role is to establish performance standards (e.g.,
clean-up goals) and verify that they have been achieved with
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certification by an independent professional engineer or
registered geologist. Corrective action is addressed through
either formal or informal agreements between the owner/operator
and the agency(ies). The owner/operator is required to
periodically brief the agency(ies) on the progress of the
corrective action, with the understanding that the agency(ies)
would periodically review procedures, observe field activities,
verify the analytical results, and/or check the progress of the
remediation and the validity of the results.
Workload estimates for this level of oversight range up to 0.1
FTE.
As new information is received, the facility's ranking may be revised.
Generally the determination of the environmental priority ranking and level of
oversight will be determined during the SEA process.
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OWNER/OPERATOR INITIATED CORRECTIVE ACTIOM
Northwest Policy
The Northwest RCRA Program encourages owners/operators to initiate
corrective action. The faster facilities initiate clean-ups, the less likely
that the contamination will worsen and become more difficult to clean up.
Responsibilities of the Owner/Operator
The owner/operator must comply with all waste management laws,
regulations and standards which are applicable to cleaning-up the release of
hazardous constituents from its solid waste management units (SWMUs). The
four principal standards which should set the standards for corrective measure
selection and clean-up are: (1) protection of human health and the
environment, (2) control of the sources of contamination in order to reduce or
eliminate further releases of hazardous wastes or constituents, (3) attainment
of media clean-up standards, and (4) compliance with waste management
standards.
Advantages of Owner/Operator Initiated Corrective Action
Some owners/operators will want to initiate corrective action prior to
issuance of a RCRA permit or compliance order for various reasons. These
reasons may include concern for problems worsening and becoming more difficult
to cleanup over time; property transfer requirements; corporate or community
image; and future liability concerns.
One advantage for the owners/operators to initiate corrective action is
that the clean-up can be carried out on the owners/operators' time schedule,
instead of being externally driven by a schedule of compliance with deadlines
and stipulated penalties imposed for failure to submit documents or achieve
milestones by fixed dates. Therefore, the owners/operators could potentially
streamline the corrective action process. Nevertheless, certain types of
corrective action activities, such as installation of a hazardous waste
incinerator to treat contamination, may require a RCRA permit.
Owners/operators initiated corrective action is best suited for removals
of contaminated wastes. The owners/operators will need to consider hazardous
waste storage duration limitations in any removal efforts in order to avoid
the potential violation of storing hazardous waste without a permit.
Responsibilities of Owner/Operator Initiated Corrective Action
Even when initiating corrective action on its own, the owners/operators
are obligated to notify governmental agencies in certain situations. The
owners/operators should notify EPA (or State agency where required), nearby
property owners and residents if the ground water and/or air action levels are
exceeded. State and local regulations vary regarding notification and/or
permit requirement requirements for clean-up activities. Frequently, programs
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in addition to RCRA are involved. The ownera/operators must include a
notification of residual contamination in the property deed. The
owners/operators should maintain all data at the facility until EPA and the
State are satisfied that the clean-up is complete.
In implementing corrective action on its own, the facility must
recognize that there is an attendant risk that the EPA or the State will
revisit the site with statutory and regulatory authorities to ensure that the
site characterization and/or clean-up conditions satisfy those requirements.
Additionally, new laws and regulations could require the owners/operators to
conduct additional corrective action activities.
Thus owner/operator-initiated corrective action, as strongly encouraged
as it is, does not necessarily obviate the need to coordinate further
corrective action within a regulatory framework. It is possible that an
interim corrective measure may be incompatible with a final corrective action
measure selected or approved at a later date by the EPA or State. The use of
sound scientific information and engineering design from the outset to
characterize and cleanup the site should considerably reduce the risk of
additional work requirements.
Recommendation! Guidance to Owner3/Operators
The Northwest RCRA Program should develop and provide the regulated
community with the following items:
* A fact sheet which summarizes options and expectations of
owner/operator-initiated corrective action activities, including
sections on clean-up levels and on performance standards.
* A list of current State and Federal regulations, guidance and policies
on corrective action, which if followed would reduce the likelihood that
facility-initiated work will need to be expanded or conducted
differently.
Recommendation; Regulatory Agency Oversight
The Northwest RCRA Program will need to investigate whether a formal
policy is needed on the type and level of EPA/State oversight required for
owner/operator initiated corrective action. Until such time, the
environmental priority ranking system should be used to determine the level of
oversight.
Recommendation; Developing Incentives
The Northwest RCRA Program should explore incentives to encourage the
regulated community to initiate corrective action such as federally-required
public participation in major corrective action determinations; EPA and State
commitments made through the SEA and STAR processes; increased media
attention; and penalties for non-compliance with permit requirements and
administrative orders, as well as potential criminal ramifications in certain
circumstances.
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CORRECTIVE ACTION IMPLEMENTATION AT FEDERAL FACILITIES
The Unique Nature of Federal Facilities
The Federal Facility Universe in the Northwest
Federal facilities are funded and managed by a department or agency of
the Federal government. In the Northwest States, these facilities include
Department of Defense bases, Department of Energy facilities, Department of
Transportation, Department of Agriculture, and Federal Aviation Agency
facilities. These facilities range in size from the small Department of
Agriculture Yakima Agricultural Research Laboratory (which is about the size
of a city block) to the Department of Energy mega-sites at Hanford and Idaho
National Engineering Lab (INEL) which are nearly the size of small states.
Many Federal facilities, such as INEL and Hanford, contain multiple
sites with a variety of wastes including low-level and high level radiation
and mixed waste (i.e., hazardous waste with radioactive components). In the
Northwest States, there are at least 26 Federal facilities which manage
hazardous waste and have potential hazardous waste problems requiring cleanup.
Differences Between Federal Facilities and Other Facilities
Federal facilities differ from privately owned facilities in several
significant ways. Unlike the private sector, Federal agencies cannot use
earnings to fund their hazardous waste clean-up responsibilities. Congress
plays a unique role in Federal facility clean-ups by authorizing funds for
that purpose; therefore, compliance by Federal facilities with RCRA and
Superfund are subject to Congressional appropriations. Additionally, Federal
facilities are immune from Federal litigation except to the extent that
sovereign immunity is specifically waived in legislation by Congress. The
Department of Justice has determined that EPA may issue to Federal facilities
and to contractor at government owned, contractor operated (GOCO) facilities
Section 3008(h) corrective action orders or enforcement orders using 6001
authority but may not issue Section 3008(a) compliance orders. EPA can not
now penalize Federal facilities for RCRA non-compliance; however, the States
may have the ability to penalize Federal facilities.
Difficulties of Conducting Corrective Action at Federal Facilities
Conducting corrective action activities at Federal facilities is often
complicated by overlapping jurisdiction among Federal programs, overlapping
jurisdiction between EPA and States authorized for RCRA/HSWA and Superfund,
and potential overlapping jurisdiction with other Federal laws such as the
Atomic Energy Act and with other State and local hazardous waste related
authorities. Another issue is whether to use CERCLA or RCRA as the primary
vehicle to ensure clean-up when both statutes apply and how to use these
statutes together. Some Federal facilities have funding available for CERCLA
remedial activities but have no funding available for RCRA corrective action.
If these issues are not resolved, then Federal facilities may experience major
delays in the clean-ups which could result in worsening contamination, or the
State and/or Federal agencies may undertake duplicative oversight activities.
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Statutory Authorities and Clean-Up
Federal facilities must comply with both RCRA and CERCLA. Section 6001
of RCRA expressly subjects Federal facilities to RCRA provisions and
implementing regulations, including corrective action requirements. Section
120 of CERCLA states that Federal facilities are subject to CERCLA, including
CERCLA's liability provisions. This section outlines the special requirements
and timetables regarding Federal facilities.
Mechanisms for Clean-Up at Federal Facilities
RCRA and CERCLA Overlap at FFs; The Use of lAGs
Often RCRA corrective action activities need to be conducted in
coordination with CERCLA clean-up activities. Federal facilities that are
placed on CERCLA's National Priority List (NPL) must sign an Interagency
Agreement (IAG). EPA's policy is to have three party lAGs, with the State
joining EPA and the Federal facility as an active partner and signatory. The
three-party lAGs can address site-specific concerns and maximize State
involvement in the clean-up process. lAGs provide a unique opportunity to
integrate RCRA and CERCLA at Federal facility sites.
The IAG must include a review of cleanup alternatives considered and
remedy selected, a schedule for clean-up accomplishments, the arrangements for
operation and maintenance, and the specific responsibilities of CERCLA, RCRA,
State, responsible Federal agency, and contractor staffs involved in the
clean-up.
lAGs are enforceable by the parties to the agreement and by citizens and
States using CERCLA Section 310 authority. RCRA authorities may be used for
those installations that include both NPL sites and RCRA units. EPA may issue
a 3008(h) order to drive the clean-up process if necessary.
POD Installation Restoration Program
The Department of Defense (DOD) has initiated its own owner/operator
initiated cleanup program, known as the Installation Restoration Program
(IRP). Under this program, some of the military bases in the Northwest States
have undergone extensive investigation to determine presence and extent of
contamination at the bases.
Since the IRP was developed with CERCLA in mind, many of the studies
performed under the IRP are of limited use for RCRA investigations. However,
the IRP has developed a useful site characterization data base which can be
utilized in RFAs and other corrective action activities.
Coordination between CERCLA and RCRA is essential for effective
management of the more complex Federal facilities, especially in the
development and implementation of lAGs. A newly formed Federal Facilities
Superfund Branch in EPA Region 10 will better enable EPA to coordinate CERCLA
and RCRA activities in the Northwest and handle the unique nature of these
facilities.
Although EPA is the lead for a majority of the clean-up activities at
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these facilities, State involvement is essential to assure that State-
specific concerns are addressed as well as utilize the States' detailed
knowledge of these facilities. The Northwest States will need to determine
how to best coordinate activities between their RCRA- and Superfund-type
programs. Much of the specifics on which program and agency will conduct
which activities are detailed during the IA6 process.
Recommendation; Level of RCRA Oversight at NPL Sites
The level of corrective action involvement by RCRA staff should be
determined during the IAG process. It is encouraged that RFAs be conducted
prior to IA6 negotiations.
Recommendation; RCRA and IAG Negotiations
When an IA6 is being negotiated at NPL sites, the EPA RCRA program
and/or State RCRA program must assure that the roles of RCRA and CERCLA are
clearly stated in the IAG and that all RCRA-regulated units and sWMUs of
concern are being addressed under either RCRA or CERCLA.
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THE EPA/STATE PARTNERSHIP
In order to utilize resources efficiently and to minimize duplication of
effort, EPA Region 10 and the Northwest States must have a clear understanding
of their expected roles in the corrective action process. Until a State is
authorized to implement the Federal corrective action regulations (promulgated
pursuant to HSWA, including 40 CFR Part 264 Subpart S, once proposed and
finalized), EPA has primary responsibility for corrective action permitting,
enforcement and oversight. For States where EPA Region 10 has primary
responsibility, EPA Region 10 may delegate the oversight responsibility for
specific facilities to the States on a case-by-case basis.
When a State becomes authorized for corrective action under the RCRA
program, then that State assumes primary responsibility for HSWA corrective
action permitting. States are required to demonstrate corrective action
permitting technical competence and procedural capabilities prior to receiving
corrective action permitting authorization. EPA cannot delegate statutory
enforcement authorities, although states may have or acquire similar
authorities through State legislative initiatives.
Once a State is authorized or when a State oversees corrective action
work conducted under federal authorities, EPA Region 10 is required to conduct
oversight of that State's corrective action program. In EPA Region 10, the
EPA Operations Offices (OOs) and the regional State Program Coordinators
provide general program assistance and oversight. The EPA Seattle Region 10
office technical staff provide technical oversight of the States' corrective
action program. Any issues on the EPA oversight of the States' corrective
action program will be addressed through SEA process.
Corrective Action Authorities
EPA Region 10 and the Northwest States will conduct RCRA corrective
action work using a variety of different State and Federal authorities.
Within EPA, clean-up activities are conducted using both CERCLA and RCRA. The
authorities under which cleanup activities are conducted vary from State to
State. Generally each State has a "RCRA" type authority, a "Superfund" type
authority and a water quality authority which can be used to drive the clean-
up process.
Recommendation; State/EPA Roles and Responsibilities
As part of the annual workplan prepared during the grant and SEA process
and during the quarterly compliance meetings, the State and EPA should discuss
the following items for facilities being addressed during that year:
* Corrective action responsibilities at each site, including
the degree of EPA oversight over each site and over the
State during that year (the level of EPA oversight will
depend on the complexity of the site, the available
resources and the State's corrective action oversight
capabilities);
* Permitting vs. enforcement route to use at each facility;
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Clean-up authorities to be used for each site (guidance on
route selection is provided in the section "Defining and
Managing the Corrective Action Pipeline"); and
Corrective action reporting requirement, where the State
reports to EPA on corrective action activities on a regular
basis.
During the SEA process and at quarterly compliance meetings, EPA and the
State should reach agreement on which authorities will be used to drive the
cleanup process at each facility during that year, including newly discovered
facilities. Most known, existing facilities are expected to conduct
corrective action activities using RCRA authorities (either Federal or
authorized State analogs); however, newly discovered facilities (e.g., illegal
TSDFs) and some existing facilities may conduct regulated clean closure and/or
past practice clean-up activities under State authorities and mechanisms other
than RCRA, as long as these mechanisms meet substantive RCRA requirements.
Regardless of the authority used to compel corrective action, the
proposed 40 CFR Part 264 Subpart F rules should be used as guidance (until
they become final) to determine substantive requirements for corrective action
activities.
During the quarterly EPA/State compliance meetings, EPA and the State
should reach agreement on how to handle newly discovered facilities.
Specifically the State and EPA should address the following questions: Should
the facility be handled using Federal or State authorities? Should the
facility be listed in the RCRA TSDF universe; if so, when? The agreement on
how to handle newly discovered facilities should be documented either in the
SEA, in the Compliance Assurance Agreement, in a multi-year strategy or in
another suitable location.
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FINANCIAL ASSURANCE FOR CORRECTIVE ACTION
Congress required that owners/operators demonstrate financial assurance
for the costs of completing corrective action for both on-site and off-site
releases from any solid waste management unit (including regulated units) at
facilities requiring a RCRA permit. Congress enacted this provision because
it was concerned that EPA or the States might issue RCRA permits that did not
address all solid waste management units (SWMUs) at facilities, and Congress
wanted to ensure that RCRA permits would not be issued to owners and operators
of facilities who are financially unable to complete a necessary clean-up.
Recommendation; Overall Guidance
At the present time, the Northwest RCRA Program has some discretion as
to how to implement financial assurance requirements for corrective action.
The October 24, 1986 proposed rule on financial assurance for corrective
action should be used as general guidance. Certain issues are not fully
discussed in that guidance. These issues are listed below with recommended
courses of action.
Recommendation; Mechanisms for Financial Assurance Demonstrations
For facilities which are not on the permit track or which will be
permitted at a later date, EPA (or the State) can use the following mechanisms
to assure that facilities will fulfill their financial responsibilities with
respect to corrective action:
RCRA Section 3008(h) or 7003 Corrective Action Order (or State
equivalent)
CERCLA enforcement authority (or State equivalent) to obtain funding
from responsible parties where EPA (or the State) determines that RCRA
authorities cannot assure adequate funding for corrective action
Recommendation! Timing of Financial Assurance Demonstration
A corrective action financial demonstration should be required within a
specified time period after remedy selection. If information is received
which substantially changes the corrective action program, the facility will
need to provide another financial assurance demonstration. For facilities
with unique situations, use of a more flexible demonstration process may be
acceptable. For example, certain facilities may be required to provide a
financial demonstration after each step of the corrective action process
(i.e., just prior to RFI, before the CMS etc.). Flexibility should always
depend on documented, verifiable financial limitations.
Although corrective action plans and measures should be included in the
permit where a permit is required, this may not always be possible or
feasible. Use flexibility of allowing permit issuance prior to owner/operator
submittal of corrective action plans and engineering studies. The permit
should contain schedules for complying with the corrective action financial
assurance requirements. Once corrective action measures are developed and a
financial demonstration can be made, the permit can be modified to include
this information.
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Recommendation; Pav-In Period for Trust Fund
To avoid the impact of financial assurance costs increasing the number
of bankruptcies and the amount of unfunded corrective actions, use flexibility
with respect to the pay-in period for trust funds for closing economically
marginal facilities which did not establish financial assurance during their
operating lives. The flexibility needs to be balanced against
owners/operators which take advantage of EPA or the State and benefit
economically from the use of flexibility. Therefore, use the approach
outlined in the financial assurance corrective action proposed rule, with the
flexibility of using a case-by-case approach when appropriate.
Recommendation* Boundaries for Corrective Action
On March 28, 1986, EPA proposed a rule which required that financial
assurance requirements cover corrective action activities beyond the facility
boundary. This rule has not been finalized; however use this proposed rule as
guidance.
Recommendation; State Assumption of Financial Responsibility
The owner/operator should be considered in compliance with the financial
responsibility if the State either assumes legal responsibility for an
owner's/operator's compliance with corrective action requirements or assures
that the funds will be available for corrective action. These actions would
meet the goals of the financial responsibility requirements.
Recommendation; Financially Marginal Closing Facilities
Another major issue concerns how to assure that financially marginal
owners/operators provide adequate financial coverage for corrective action
activities for closing facilities. Using the threat of forced closure as an
incentive would obviously not be effective for a closing facility. One
possible method is to use civil or stipulated penalties to assure that the
owner/operator does not economically benefit from non-compliance.
Owners/operators must provide information to assure that adequate
finances are available to carry out corrective action activities. However, in
some situations EPA/State may exercise enforcement discretion and enter into a
settlement which does not explicitly direct full compliance with the financial
assurance requirements (such as a more flexible schedule for meeting the
requirements or use of an alternative financial assurance mechanism). This
discretion should be limited to the following situations:
1. The owner/operator must demonstrate that it cannot meet the
financial assurance requirements through any of the
available mechanisms.
2. The owner/operator must agree to an expedited schedule for
closing the facility.
3. The owner/operator must continue to make all practicable
efforts to comply with the regulations.
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CORRECTIVE ACTION PROGRAM RESOURCES
Current resources are insufficient to complete all the corrective
action activities which need to be done. The Northwest RCRA Program should
continue to push for additional funding; however, acquiring sufficient
resources to support the burgeoning Northwest Corrective Action Program is not
a promising prospect in the short term. The process for securing innovative
funding mechanisms is typically a difficult and time consuming process.
Therefore, the Northwest RCRA Program should also concentrate its efforts on
stretching the current corrective action resources to assure that at least the
environmentally most significant facilities are addressed.
Described below are future national initiatives for corrective action
resources, as well as recommendations for stretching currently available
resources.
Future Initiatives for Increasing Corrective Action Resources
Regulated Community Payment for Aoencv CA Oversight
At this time, EPA cannot charge fees for any part of the RCRA program,
and it is unlikely that the current administration will pursue legislative
changes to provide authority for EPA to impose fees on all or part of the
regulated public.
Some of the Northwest States are able to impose fees on all or part of
the regulated public to fund parts of the RCRA program, such as charging a fee
to process a RCRA permit application; however, in most cases, the list of
activities covered by the fees are clearly limited by statute. Therefore,
statutory changes may be required in order to allow the States to impose fees
for oversight of clean-up activities.
Owner/Operator Direct Payment to Contractors
In order to add resources to the corrective action program, EPA-HQ is
considering several options. First, EPA could require facilities to provide
direct payment to EPA for the cost of EPA oversight or require the facilities
to directly reimburse EPA when contractors have completed the oversight
responsibilities. This is not a viable option at this time since all monies
would be passed on to the U.S Treasury General Fund; therefore, EPA would need
statutory authority (probably through RCRA Reauthorization) to increase RCRA
authority to allow for direct cost recovery or an establishment of a RCRA
Trust Fund. EPA-HQ is not actively pursuing this option at this time,
although Congressional reauthorization of RCRA is pending (and overdue) in
1990.
As another option, EPA Region 10 and/or the Northwest States could
require the owner/operator to directly pay for a contractor to conduct
corrective action oversight. The contractor would be selected by the facility
and approved by EPA and/or the State.
EPA's authority under Section 3008(h) of RCRA to order respondents to
take actions necessary to protect human health and the environment may include
the ability to hire an oversight contractor. That is, EPA under an
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enforcement order such as Section 3008(h) or through a permit condition or the
Northwest States under State authorities could stipulate penalties to require
corrective action oversight. Additionally, EPA and the States could recommend
that facilities conducting owner/operator initiated clean-ups include payment
of State/EPA corrective action oversight as part of the consent agreement.
In the Northwest, the States are not legally able to unilaterally
require the facility to pay contractor oversight costs at the present time.
Like EPA, the States would require legislative or statutory changes. Using
enforcement mechanisms such as a State version of the consent decree is a
possibility; none of the Northwest States has used this mechanism at this
date.
Corrective Action Resources to States
Beginning in FY91, EPA Region 10 will be allocating grant money to each
State specifically for RCRA corrective action activities. In order to qualify
for these funds, the State must demonstrate that they are conducting
activities relating to corrective action. When the State is able, to make this
demonstration, EPA Region 10 should try to provide resources such as grants,
contractor support etc. The discussion below provides other ideas for
providing corrective action resources to the States.
Use of EPA Contractor Funds bv State Personnel
One method of supplementing State corrective action resources and
encouraging States to participate fully in the corrective action program is to
allow States to use EPA contract funds to conduct corrective action
activities. Although EPA can not directly transfer such funds, EPA can allow
the States input into contractor assignments, as well as review of contractor
products.
Redirection of Contractor Funds to State Grants
To offset the States' resource burdens associated with corrective action
activities and to provide an incentive to States to participate fully in the
corrective action program, EPA-HQ is actively pursuing the conversion of
extramural funds to State grants. The issue is not whether to convert these
funds, but how to implement such a conversion. The amount of funds redirected
would depend on the level of involvement in corrective action assumed by the
States. EPA Region 10 prefers the option of State use of EPA contractor funds
described above.
Doing More With Less: Stretching Current Resources
Recommendation; Tiered Approach to Corrective Action Oversight
One method of stretching the resources is through the use of a tiered approach
to corrective action oversight based on such factors as facility risk and
compliance history. The corrective action oversight rating system described
in "Corrective Action Oversight" provides the criteria to establish varying
levels of corrective action oversight.
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Recommendation; Use of Superfund Monies for RFAs
Through the Environmental Priorities Initiative, the RCRA Northwest
program is supplementing RCRA corrective action resources by using Superfund
resources to conduct RFAs. In 1990-91, the EPA Region 10 Superfund program
has agreed to have its contractors conduct approximately 65 RFAs in the
Northwest States. The Northwest RCRA Program could also investigate the
possibility of tapping into the state Superfund programs to conduct some
corrective action activities.
Experience has shown that in use of federal and State Superfund
resources and contractors, the quality of the product is directly proportional
to the involvement and oversight on the part of the RCRA staff members most
familiar with the facility.
Recommendation; Enforcement Tools to Reimburse Agency Oversight Costs
The following federal authorities may be used to pay for EPA corrective
action oversight costs:
* RCRA Section 3013 allows for reimbursement for EPA's
oversight costs when the owner/operator does not properly
investigate releases from a facility.
* EPA can recover costs or be reimbursed if CERCLA Sections
104 or 106 is used to order corrective action.
Recommendation; Northwest Support for Increased National Funding
The Northwest RCRA Program should continue to support attempts to
increase national funding for corrective action.
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FATE AND REGIONAL CORRECTIVE
Corrective Action Personnel Needs
Successfully incorporating corrective action into the existing RCRA
program will require a combination of specialized skills. Each State and EPA
Region 10 will need to examine its program to determine how to best provide
the necessary corrective action expertise. Successful implementation of a
RCRA corrective action program will require the following skills:
Hydrogeologic expertise
Engineering expertise
Chemistry expertise
Accounting and financial expertise
Site management, communication, and legal skills
Administrative skills (last but not least 1)
The types of skills needed will depend on the focus of the program
during that year. Currently the Northwest RCRA program is focusing on
investigations; however, in five years the focus could switch to corrective
action measures implementation. During the time, EPA/State may need to change
their personnel skill mix.
Developing Corrective Action Capabilities
Developing and maintaining the corrective action expertise of State and
EPA RCRA personnel is paramount to efficiently and effectively implementing
corrective action. Due to frequent staff turnover and newness of the
corrective action program, few existing RCRA personnel are experienced in
corrective action. In order to develop and maintain capabilities in the
corrective action program, the following must occur:
(1) Assuring that appropriate guidance, policies and rules are
accessible to all corrective action staff;
(2) Providing concise corrective action training on a frequent
and ongoing basis to new and experienced RCRA staff; and
(3) Implementing actions to retain experienced staff.
Recommendation; Finding Technical Expertise
Since it is unlikely that the States or EPA can afford to support all
the recommended experts on the staff, they should consider the following
ideas:
* Use contractors for those projects requiring a certain
expertise for a limited amount of time.
* Share experienced technical advisors among the entire region
on a consultant basis. For example, Idaho's corrective
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action staff may consult with Washington's chemist on
various aspects of correction action program implementation.
Formal, temporary, personnel exchanges may be warranted on
large, complex projects.
* Use Federal expertise from the EPA HQ office in Washington
DC, as well as research laboratories in Research Triangle
Park, North Carolina and Cincinnati, Ohio and elsewhere
throughout the nation for consultation purposes.
Recommendation; Training
Continually seek and obtain appropriate training for RCRA staff and
managers.
Recommendation; Workgroup
A Northwest Corrective Action Implementation Workgroup should be
assembled to administer special corrective action projects. EPA contractors
may be available to assist in these projects. Some potential projects
include:
* Develop an annotated index of existing corrective action
guidance, reference materials, policy documents and
administrative procedures, which will be updated on a
regular basis. Develop libraries of corrective action
guidance and reference materials in each state and in Region
10.
* Prepare guidance documents on corrective action
implementation topics such as effective use of interim
corrective action measures, aspects of site characterization
not discussed in the RFI Guidance, etc.
* Provide specialized corrective action training geared toward
Northwest concerns and needs, including field trips during
corrective action measure installations. Use cost effective
training programs such as "Train the Trainer" in which
experienced staff to teach new staff various aspects of
RCRA; or interactive video programs as corrective action
modules are developed.
In addition to administering special projects, the Workgroup should be
the focal point for addressing ongoing corrective action implementation
issues. The Workgroup should periodically discuss the implementation of the
Northwest Corrective Action Strategy; consistency of implementation; State and
EPA roles and workloads in implementing corrective action; additional training
needs; incorporation of new policies, guidance, regulations and statutes
affecting the corrective action program; and the latest technologies relevant
to corrective action implementation.
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Communicating Corrective Action Information
In order to effectively and efficiently implement corrective action,
staff from the States and EPA Region 10 need to communicate evolving
corrective action policies and their corrective action implementation
experiences, including the effectiveness of the latest technologies.
Recommendation; Newsletter
Publish a quarterly newsletter of the Northwest RCRA Program's
corrective action activities. The newsletter could outline unique
administrative or technical activities. Some potential newsletter items
include:
* The corrective action authority used and the selection of
corrective action measures under specific site conditions.
* The status of Subpart S and pertinent developments in the
Federal and State rulemaking processes.
* Issues related to establishing action levels or clean-up
standards.
* Information related to corrective measures implementation,
including the success or problems associated with specific
clean-up technologies, the ability of specific clean-up
technologies to attain clean-up standards and any
maintenance or construction problems.
* State and EPA organizational charts and lists of personnel
with corrective action expertise.
The Northwest RCRA Program newsletter could also promote field trips
within the Northwest during corrective action measure implementation (such as
pump-and-treat systems). Additionally, the EPA Region 10's RCRA Weekly Report
can be used to provide the status of corrective action activities in brief on
a weekly basis.
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LIST OF REFERENCES
Proposed Corrective Action for Solid Waste Management Units at Hazardous
Waste Management Facilities - Subpart S Rule
Dingell Ground Water Monitoring Hearing Responses to Follow-Up Questions
(8/16/89)
EPA's Federal Facility Hazardous Waste Compliance Manual (OSWER
Directive 9992.4, January 1990)
Guidance for Environmental Priorities Initiative Facilities in the
Superfund Pre-Remedial Program (OSWER Directive 9932.1)
RCRA Corrective Action Outyear Strategy (October 30, 1989)
RCRA Facility Investigation Guidance (Interim Final) (OSWER Directive
9502.00-6D, May 1989)
RCRA Implementation Study (July, 1990)
Standards Applicable to Owners and Operators of Hazardous Waste
Treatment, Storage and Disposal Facilities; Financial Assurance for
Corrective Action Proposed Rule (Federal Register Notice 10/24/86)
Test Methods for Evaluating Solid Waste SW-846 (Third Edition, November
1986)
Toxicity Characteristic Rule (Federal Register Notice, March 29, 1990)
U.S. EPA Contract Laboratory Program Statement of Work for Inorganics
Analysis Multi-Media, Multi-Concentration (7/88)
U.S. EPA Contract Laboratory Program Statement of Work for Organics
Analysis Multi-Media, Multi-Concentration (Revised 4/89)
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APPENDIX 1
Facility Environmental Priority Ranking Criteria
POINTS (circle the appropriate answer)
The first three categories should be summed separately to give the overall
environmental priority ranking. Categories 4-9 should be summed to give
guidance as to how to manage corrective action at that facility, e.g., degree
of oversight appropriate. Each category should be evaluated separately and
independently from the other categories. For facilities where information is
lacking, use best scientific judgement in assessing a rating.
Category 1: Extent of Contamination
10 pts. Level 1A: Groundwater contamination has been identified or is
suspected, or there is an immediate risk to human
health or the environment.
5 pts. Level IB: Soil contamination is documented, but no groundwater
contamination has been identified.
0 pts. Level 1C: No soil or groundwater contamination has been
identified.
* Note: If there has been a release at a facility which poses a high
level of concern, it should receive the highest rating in
this category, even if the release is not to the groundwater
(i.e. toxic air releases).
* Note: For the purpose of this rating scheme, provisions are not
given for whether the groundwater contamination is above or
below drinking water standards. The only criteria is
whether contamination has entered the groundwater, and hence
poses the greatest health risk, relative to the other
categories.
Category 2: Toxicity of Known or Suspected Releases
10 pts. Level 2A: The known or suspected release contains "Extremely-
hazardous wastes" (such as acutely-hazardous waste
under federal regulations, or the state equivalent).
5 pts. Level 2B: The known or suspected release contains "Toxic
Hazardous Wastes" (40 CFR S 261).
0 pts. Level 2C: The release contains ignitable, corrosive and reactive
wastes and non-hazardous wastes (petroleum wastes
etc.).
Category 3: Facility Setting
10 pts Level 3A: The facility affects sensitive bio-receptors or
endangered species and/or human populations (e.g., air
emissions, drinking water, wetlands).
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5 pts
0 pts
2 pts.
1 pt.
0 pts,
2 pts.
1 pt.
0 pts,
2 pts.
1 pt.
Level 3B: The facility has no sensitive bio-receptors. Ground
water and/or surface water is used for drinking water.
Level 3C: The facility is removed from human populations and
sensitive ecosystems. Ground water and/or surface
water is not used for drinking water.
TOTAL POINTS, Categories 1-3
20-30 points: High priority site
10-19 pointss Medium priority site
0-9 points: Low priority site
Category 4: Enforcement History:
Level 4A: There is a high level of concern regarding the
facility's enforcement history (i.e.. Class I
violations).
Level 4B: There is a medium level of concern regarding the
facility's enforcement history (i.e., Class II
violations).
Level 4C: There is a low level of concern concerning the
facility's enforcement history (i.e., minor or no
violations).
Category 5i Financial Status of the Facility:
Level 5A: There is a high level of concern regarding the
facility's financial status (i.e., bankruptcy suspect
or business is for sale).
Level SB: There is a medium level of concern regarding the
facility's financial status (i.e., facility appears
solvent but has not adequately demonstrated financial
assurance).
Level 5C: There is a low level of concern concerning the
facility's financial status (i.e., facility has
demonstrated financial assurance).
Category 7: Extent to Which the Nature of Releases is Known:
Level 6A: Little or no site characterization has been completed.
Level 6B: Some site characterization has been completed but a
lot more work must be performed.
0 pts,
Level 6C: Substantial site characterization has been completed.
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Category 7: Level of Public Interest:
2 pts. Level 7A: There is substantial public interest in the site.
1 pt. Level 7B: There is some public interest in the site.
0 pts. Level 7C: There is little to no public interest.
Category 8s Type and Complexity of the Particular Corrective
Action Activity:
2 pts. Level 8A: There are complex and significant corrective action
activities being performed (such as drum removal or
installation of a groundwater pump and treat system).
1 pt. Level SB: There are corrective action activities "average" in
complexity and significance being performed (such as
well installation or pump tests).
0 pts. Level 8C: There are relatively simple and insignificant
activities being performed at the site (such as
installation of a fence).
2 pts.
1 pt.
0 pts.
Category 9: Capability of Facility to Conduct Corrective Action
Activities
Level 9A: There is a high level of concern regarding the
facility's ability to conduct corrective action
activities (i.e., facility owner/operator or facility
consultant has no experience in hazardous waste
remediation).
Level 9B: There is a medium level of concern regarding the
facility's ability to conduct corrective action
activities (i.e., facility owner/operator or
consultant has an "average" level of experience and
capability).
Level 9C: There is a low level of concern concerning the
facility's ability to conduct corrective action
activities (i.e., the facility owner/operator has a
reputation of doing good hazardous waste remedial work
or has hired a highly respected consultant in this
field).
TOTAL POINTS, Categories 4-9
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APPENDIX 2
Differences Between Corrective Action and Closure/Post-Closure FA
The October 24, 1986 proposed rule provides details on how to satisfy
the corrective action financial assurance requirement. Like financial
assurance for closure/post closure, the corrective action financial assurance
demonstration can be fulfilled through use of a trust fund, surety bond
guaranteeing performance, letter of credit, financial test and corporate
guarantee. Unlike closure/post closure financial assurance, insurance and
surety bonds guaranteeing payment into a standby trust fund are not acceptable
mechanisms for corrective action financial assurance demonstrations.
Additionally the trust fund mechanism is modified because of the size
and duration of corrective action costs (much greater) and the type of
obligation (current). Proposed modifications to the trust fund include:
revising the formula so that only the costs of corrective
action expected to be incurred after the end of the pay-in
period are used to derive annual payment into the trust fund
revising the trust fund pay-in period to twenty years or
one-half of the corrective action period, whichever is
shorter.
Corrective action cost estimates are typically several times larger than
closure/post-closure care cost estimates, and clean-up of ground water
contamination may take up to 50 years. For facilities unable to meet the
terms of the financial test, EPA is concerned that the impact of corrective
action costs in addition to financial assurance costs may increase the number
of bankruptcies and therefore increase the amount of unfunded corrective
actions.
EPA is currently working on a proposal to revise the financial test
mechanism for corrective action, closure/post-closure care and for liability
coverage. The basic proposal is to eliminate the bond rating option and
multiplier. Instead the owner/operator would demonstrate a net worth of $10
million plus the cost of financial assurance (i.e., cost of corrective action,
closure/post closure care, and liability coverage). The impact of this
proposal would be to substantially increase the number of companies which
would be eligible to use the financial test (without increasing the number of
facilities which pass the financial test and later file for bankruptcy).
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