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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
SEP 24 1996
SUBJECTCoordination between RCRA Corrective Action and Closure and CERCLA Site Activities
FROM: Steven A. Herman
Assistant Administrator
Office of Enforcement and Compliance Assurance
United States Environmental Protection Agency
Elliott P. Laws
Assistant Administrator
Office of Solid Waste and Emergency Response
United States Environmental Protection Agency
TO: RCRA/CERCLA National Policy Managers
Regions I-X Agency
Good RCRA/CERCLA coordination has become increasingly important as our offices have reorganized and
programs have assumed new organizational relationships. We believe that, in general, coordination of site cleanup
activities among EPA RCRA, EPA CERCLA and. state/tribal cleanup programs has improved greatly; however, we
are aware of examples of some remaining coordination difficulties. In this memo, we discuss three areas:
acceptance of decisions made by other remedial programs; deferral of activities and coordination among EPA
RCRA, EPA CERCLA and state/tribal cleanup programs; and coordination of the specific standards and
administrative requirements for closure of RCRA regulated units with other cleanup activities. We also announce a
revision to the Agency's policy on the use of fate and transport calculations to meet the "clean closure"
performance standard under RCRA. We hope the guidance offered here will assist in your continuing efforts to
eliminate duplication of effort, streamline cleanup processes, and build effective relationships with the states and
tribes.
This memorandum focuses on coordination between CERCLA and RCRA cleanup programs; however, we
believe the approaches outlined here are also applicable to coordination between either of these programs and
certain state or tribal cleanup programs that meet appropriate criteria. For example, over half of the states have
"Superfund-like" authorities. In some cases, these state authorities are substantially equivalent in scope and effect
to the federal CERCLA program and to the state or federal RCRA corrective action program. In accordance with
the 1984 Indian Policy, EPA recognizes tribes as sovereign nations, and will work with them on a
government-to-government basis when coordination cleanup efforts on lands under tribal jurisdiction.
In addition to the guidance provided in this memorandum, two other on-going initiatives address coordination
of RCRA and CERCLA. First, EPA is currently coordinating an interagency and state "Lead Regulator Workgroup."
This workgroup intends to provide guidance where overlapping cleanupauthorities apply at federal facilities that
identifies options for coordinating oversight and deferring cleanup from one program to another. We intend for
today's memorandum and the pending guidance from the Lead Regulator Workgroup to work in concert to improve
RCRA/CERCLA integration and coordination. Second, EPA has also requested comment on RCRA/CERCLA
integration issues in the May 1, 1996 Advanced Notice of Proposed Rulemaking-Corrective Action for Releases
From Solid Waste Management Units at Hazardous Waste Management Facilities (61 FR 19432; commonly
referred to as the RCRA "Subpart S" ANPR). We intend to coordinate all of these efforts as we develop further
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policy on integration issues. http:/A/\ww.epa.gov/swerffrr/doc/924memo.htm#return1
Acceptance of Decisions Made by Other Remedial Programs
Generally, cleanups under RCRA corrective action or CERCLA will substantively satisfy the requirements of
both programs. FOOTNOTE 1. We believe that, in most situations, EPA RCRA and CERCLA site managers can defer
cleanup activities for all or part of a site from one program to another with the expectation that np further cleanup
will be required under the deferring program. For example, when investigations or studies have been completed .
under one program, there should be no need to review or repeat those investigations or studies under another
program. Similarly, a remedy that is acceptable under one program should be presumed to meet the standards of
the other.
It has been our experience that, given the level of site-specific decision-making required for cleaning up
sites, differences among the implementation approaches of the various remedial programs primarily reflect
differences in professional judgement rather than structural inconsistencies in the programs themselves. Where
there are differences in approaches among remedial programs, but not in their fundamental purposes or objectives
(e.g., differences in analytical QA/QC procedures), these differences should not necessarily prevent deferral. We
encourage program implementors to focus on whether the end results of the remedial activities are substantively
similar when making deferral decisions and to make every effort to resolve differences in professional judgement to
avoid imposing two regulatory programs.
We are committed to the principle of parity between the RCRA corrective action and CERCLA programs and
to the idea that the program should yield similar remedies in similar circumstances. To further this goal, we have
developed and continue to develop a number of joint (RCRA/CERCLA) guidance documents. For example, the
several "Presumptive Remedies," which are preferred technologies for common categories of sites, and the
Guidance for Evaluating the Technical Impracticability of Groundwater Restoration (OSWER Directive 9234.2-25,
September 1993), which recognizes the impracticability of achieving groundwater restoration at certain sites, are
applicable to both RCRA and CERCLA cleanups. For more information on the concept of parity between the RCRA
and CERCLA program see: 54 FR 41000, esp. 41006-41009 (October 4, 1989), RCRA deferral policy; 54 FR 10520
(March 13,1989), National Priorities List for Uncontrolled Hazardous Waste Sites Listing Policy for Federal
Facilities; 55 FR, 30798, esp. 30852-30853 (July 27, 1990), Proposed Rule for Corrective Action for Solid Waste
Management Units at Hazardous Waste Management Facilities; 60 FR 14641 (March 20, 1995), Deletion Policy for
RCRA Facilities; and, 61 FR 19432 (May 1, 1996), Corrective Action forReleases From Solid Waste Management
Units at Hazardous Waste Management Facilities, Advanced Notice of Proposed Rulemaking.
Program Deferral
The concept of deferral from one program to another is already in general use at EPA. For example, it has
long been EPA's policy to defer facilities that may be eligible for inclusion on the National Priorities List (NPL) to
the RCRA program if they are subject to RCRA corrective action (unless they fall within certain exceptions, such as
federal facilities). Recently, EPA expanded on this policy by issuing criteria for deleting sites that are on the NPL
and deferring their cleanup to RCRA corrective action (attached). FOOTNOTE 2. When a site is deleted from the NPL
and deferred to RCRA, problems of jurisdictional overlap and duplication of effort are eliminated, because the site
will be handled solely under RCRA authority. Corrective action permits or orders should address all releases at a
CERCLA site being deferred to RCRA; some RCRA permits or orders may need to be modified to address all
releases before a site is deleted from the NPL.
While EPA's general policy is for facilities subject to both CERCLA and RCRA to be cleaned up under
RCRA, in some cases, it may be more appropriate for the federal CERCLA program or a state/tribal
"Superfund-like" cleanup program to take the lead. In these cases, the RCRA permit/order should defer corrective
action at all of the facility to CERCLA or a state/tribal cleanup program. For example, where program priorities
differ, and a cleanup under CERCLA has already been completed or is underway at a RCRA facility, corrective
action conditions in the RCRA permit/order could state that the existence of a CERCLA action makes separate
RCRA action unnecessary. In this case, there would be no need for the RCRA program to revisit the remedy at
some later point in time. Where the CERCLA program has already selected a remedy, the RCRA permit could cite
the CERCLA decision document (e.g., ROD), but would not necessarily have to incorporate that document by
reference. RCRA permits/orders can also defer corrective action in a similar way for cleanups undertaken under
state/tribal programs provided the state/tribal action protects human health and the environment to a degree at
least equivalent to that required under the RCRA program.
Superfund policy on deferral of CERCLA sites for listing on the NPL while states and tribes oversee
response actions is detailed in the May 3, 1995 OSWER Directive 9375.6-11 ("Guidance on Deferral of NPL Listing
Determinations While States Oversee Response Actions"). The intent of this policy is to accelerate the rate of
response actions by encouraging a greater state or tribal role, while maintaining protective cleanups and ensuring
full public participation in the decision-making process. Once a deferral response is complete, EPA will remove the
site from CERCLIS and will not consider the site for the NPL unless the Agency receives new information of a
release or potential release that poses a significant threat to human health or the environment. The state and tribal
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deferral policy is available for site*ttof/tiste(*iongl^Nf^r^f^ must be addresses under the
Agency's deletion policy, as described above.
Coordination Between Programs
While deferral from one program to another is typically the most efficient and desirable way to address
overlapping cleanup requirements, in some cases, full deferral will not be appropriate and coordination between
programs will be required. The goal of any approach to coordination of remedial requirements should be to avoid
duplication of effort (including oversight) and second-guessing of remedial decisions. We encourage you to be
creative and focus on the most efficient path to the desired environmental result as you craft strategies for
coordination of cleanup requirements under RCRA and CERCLA and between federal and state/tribal cleanup
programs.
Several approaches for coordination between programs at facilities subject to both RCRA and CERCLA are
currently in use. It is important to note that options for coordination at federal facilities subject to CERCLA §120
may differ from those at non-federal facilities because of certain prescriptive requirements under §120. EPA
anticipates issuing further guidance on coordination options specific to federal facilities through the interagency
Lead Regulator Workgroup. Current approaches that are in use include:
Craft CERCLA or RCRA decision documents so that cleanup responsibilities are divided. CERCLA and
RCRA decision documents do not have to require that the entire facility be cleaned up under one or the
other program. For example, at some facilities being cleaned up under CERCLA, the RCRA units (regulated
or solid waste) are physically distinct and could be addressed under RCRA. In these cases, the CERCLA
decision documents can focus CERCLA activities on certain units or areas, and designate others for action
under RCRA. When units or areas are deferred from CERCLA to RCRA, the CERCLA program should
include a statement (e.g., in a ROD or memorandum submitted to the administrative record) that successful
completion of these activities would eliminate the need for further cleanup under CERCLA at those units and
minimal review would be necessary to delete the site from the NPL. Similarly, when units or areas are
deferred from RCRA to CERCLA, RCRA permits or orders can reference the CERCLA cleanup process and
state that complying with the terms of the CERCLA requirements would satisfy the requirements of RCRA.
Establish timing sequences in RCRA and CERCLA decision documents. RCRA and CERCLA decision
documents can establish schedules according to which the requirements for cleanup at all or part of a facility
under one authority would be determined only after completion of an action under the other authority. For
examples RCRA permits/orders can establish schedules of compliance which allow decisions as to whether
corrective action is required to be made after completion of a CERCLA cleanup or a cleanup under a
state/tribal authority. After the state or CERCLA response is carried out, there should be no need for further
cleanup under RCRA and the RCRA permit/order could simply make that finding. Similarly, CERCLA or
state/tribal cleanup program decision documents could delay review of units or areas that are being
addressed under RCRA, with the expectation that no additional cleanup will need to be undertaken pending
successful completion of the RCRA activities, although CERCLA would have to go through the
administrative step of deleting the site from the NPL.
A disadvantage of this approach is that it contemplates subsequent review of cleanup by the deferring
program and creates uncertainty by raising the possibility that a second round of cleanup may be necessary.
Therefore, we recommend that program implementors look first to approachesthat divide responsibilities, as
described above. A timing approach, however, may be most appropriate in certain circumstances, for
example, where two different regulatory agencies are involved. Whenever a timing approach is used, the
final review by the deferring program will generally be very streamlined In conducting this review, there
should be a strong presumption that the cleanup under the other program is adequate and that reconsidering
the remedy should rarely be necessary.
The examples included in this memo demonstrate several possible approaches to deferring action from one
cleanup program to another. For example, under RCRA, situations are described where the RCRA corrective action
program would make a finding that no action is required under RCRA because the hazard is already being
addressed under the CERCLA Program, which EPA believes affords equivalent protection. In other examples, the
RCRA program defers not to the CERCLA program per se, but either defers to a particular CERCLA ROD or
actually incorporates such ROD by reference into a RCRA permit or order. In addition, there are examples where
the Agency commits to revisit a deferral decision once the activity to which RCRA action is being deferred is
completed; in other situations, reevaluation is not contemplated. As discussed in this memorandum, no single
approach is recommended, because the decision of whether to defer action under one program to another and how
to structure such a deferral is highly dependent on site-specific and community circumstances. In addition, the type
of deferral chosen may raise issues concerning, for example, the type of supporting documentation that should be
included in the administrative record for the decision, as well as issues concerning availability and scope of
administrative and judicial review.
Agreements on coordination of cleanup programs should be fashioned to prevent revisiting of decisions and
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should be clearly incorporated andherofcsvrsfBreweftvmtflr^^ permits or orders. We
recognize that this up-front coordination requires significant resources. Our expectation is that, over the long-term,
duplicative Agency oversight will be reduced and cleanup efficiency will be enhanced.
RCRA Closure and Post-Closure
Some of the most significant RCRA/CERCLA integration issues are associated with coordination of
requirements for closure of RCRA regulated units FOOTNOTE 3. with other cleanup activities. Currently, there are
regulatory distinctions between requirements for closure of RCRA regulated units and other cleanup requirements
(e.g., RCRA corrective action requirements). RCRA regulated units are subject to specific standards for operation,
characterization of releases, groundwater corrective action and closure. Coordination of these standards with other
remedial activities can be challenging. In the November 8, 1994 proposed Post-Closure Rule (59 FR 55778), EPA
requested comment on an approach that would reduce or eliminate the regulatory distinction between cleanup of
releases from closed or closing regulated units and cleanup of non-regulated unit releases under RCRA corrective
action. The Office of Solid Waste will address this issue further in the final Post-Closure and Subpart S rules.
At the present time, however, the dual regulatory structure for RCRA closure and other cleanup activities
remains in place. There are several approaches program implementors can use to reduceinconsistency and
duplication of effort when implementing RCRA closure requirements during CERCLA cleanups or RCRA corrective
actions. These approaches are analogous to the options discussed above for coordination between cleanup
programs. For example, a clean-up plan for a CERCLA operable unit that physically encompasses a RCRA
regulated unit could be structured to provide for concurrent compliance with CERCLA and the RCRA closure and
post-closure requirements. In this example, the RCRA permit/order could cite the ongoing CERCLA cleanup, and
incorporate the CERCLA requirements by reference. RCRA public participation requirements would have to be met
for the permit/order to be issued; however, at many sites it may be possible to use a single process to meet this
need under RCRA and CERCLA.
At some sites, inconsistent cleanup levels have been applied for removal and decontamination ("clean closure") of
regulated units and for site-wide remediation under CERCLA or RCRA corrective action. Where this has happened,
clean closure levels have been generally set at background levels while, at the same site, cleanup levels have
been at higher, risk-based concentrations. To avoid inconsistency and to better coordinate between different
regulatory programs, we encourage you to use risk-based levels when developing clean closure standards. The
Agency has previously presented its position on the use of background and risk-based levels as clean closure
standards (52 FR 8704-8709, March 19, 1987; attached). This notice states that clean closure levels are to be
based on health-based levels approved by the Agency. If no Agency-approved level exists, then background
concentrations may be used or a site owner may submit sufficient data on toxicity to allow EPA to determine what
the health-based level should be.
EPA continues to believe, as stated in the March 19,1987 notice, that risk-based approaches are protective
and appropriate for clean closure determinations. In EPA's view, a regulatory agency could reasonably conclude
that a regulated unit was clean closed under RCRA if it was cleaned up under Superfund, RCRA corrective action,
or certain state/tribal cleanup programs to the performance standard for clean closure. This performance standard
can be met with the use of risk-based levels. RCRA units that did not achieve the closure performance standard
under a cleanup would remain subject to RCRA capping and post-closure care requirements.
The 1987 federal register notice described EPA's policy that the use of fate and transport models to establish
risk levels would be inappropriate for clean closure detections. This discussion, however, also included the
statement that, after additional experience with clean closures, "the Agency may decide that a less stringent
approach is sufficiently reliable to assure that closures based on such analyses are fully protective of human health
and the environment." After nine years of further experience, EPA believes that, consistent with the use of
risk-based standards in its remedial programs, use of fate and transport models to establish risk levels can be
appropriate to establish clean closure determinations. EPA today announces that it is changing its 1987 policy on
evaluating clean closure under RCRA to allow use of fate and transport models to support clean closure
demonstrations. EPA intends to publish this change in the Federal Register in the near future.
We encourage you to consider risk-based approaches when developing cleanup levels for RCRA regulated
units and to give consideration to levels set by state/tribal programs which use risk-based approaches. EPA is
developing guidance on risk-based clean closure and on the use of models to meet the clean closure performance
standard.
Since almost all states oversee the closure/post-closure process and more than half implementRCRA
corrective action, coordination of RCRA corrective action and closure will often be solely a state issue. However, if
a state is not authorized for corrective action, or if a facility is subject to CERCLA as well as RCRA corrective
action, close coordination between federal and state agencies will be necessary. As discussed above, actual
approaches to coordination or deferral at any site should be developed in consideration of site-specific and
community concerns.
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Summary http://www.epa.gov/swerffrr/doc/924memo.htmSreturn1
We encourage you to continue your efforts to coordinate activities between the RCRA and CERCLA
programs and between state, tribal and federal cleanup programs. We are aware that several of the EPA Regions
are considering developing formal mechanisms to ensure that coordination will occur among these programs. We
endorse these efforts and encourage all Regions, states and tribes to consider the adoption of mechanisms or
policies to ensure coordination. If you have any questions on the issues discussed in this memorandum, or on other
RCRA/CERCLA issues, please call Hugh Davis at (703)308-8633.
attachments
cc: Craig Hooks, FFEO
Barry Breen, OSRE
Robert Van Heuvelen, ORE
Steve Luftig, OERR
Michael Shapiro, OSW
Jim Woolford, FFRRO
Regional RCRA Branch Chiefs
Regional CERCLA Branch Chiefs
Federal Facilities Leadership Council
Tom Kennedy, Association of States and Territorial Solid Waste Management Officials
Robert Roberts, Environmental Council of States
John Thomasian, National Governors Association
Brian Zwit, National Association of Attorneys General
1. In a few, limited cases, program differences may be sufficiently great to prevent deferral to the other
program (e.g., the inability of CERCLA to address petroleum releases or RCRA to address certain radioactive
materials). In these instances we encourage remedial programs to coordinate closely with each other to minimize
duplication of effort, including oversight. Return to Document
2. Currently, the RCRA deletion policy does not pertain to federal facilities, even if such facilities are also
subject to Subtitle C of RCRA. Site Managers are encouraged to use interagency agreements to eliminate
duplication of effort at federal facilities; the Lead Regulator Workgroup intends to provide additional guidance on
coordinating oversight and deferring cleanup from one program to another at federal facilities. Return to
Document
3. In this document the term "regulated unit" refers to any surface impoundment, waste pile, land
treatrhentunit or landfill that receives (or has received) hazardous waste after July 26,1982 or that certified closure
after January 26, 1983.
Return to Document
Links to Relevant Code of Federal Regulations (CFR)
Vol. 60. No. 53. Monday, March 20,1995, 40 CFR Part 300
• The National Priorities List for Uncontrolled Hazardous Waste Sites; Deletion Policy for Resource
Conservation and Recovery Act Facilities
* The National Oil and Hazardous Substances Contingency Plan: National Priorities List Update
Vol. 52. No. 53. Thursday, March 19,1987, 40 CFR Part 265
• Intermin Status Standards for Owners and Operators of Hazardous Waste Treatment. Storage, and
Disposal Facilities; Final Rule i':::';:;:-i;::i;.::'
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