&EPA
United States
Environmental Protection Agency
Office of Enforcement and
Compliance Assurance
September 27, 2012
United Stales
Environmental Protection
Agency
Office of Solid Waste and
Emergency Response
Assessment of the National
Enforcement Strategy for RCRA
Corrective Action (NESCA)
INTRODUCTION
On April 27, 2010, EPA issued the "National Enforcement Strategy for RCRA Corrective
Action" (NESCA) to promote and communicate nationally consistent enforcement and
compliance assurance principles, practices, and tools to help EPA and the states achieve the 2020
Corrective Action Goal (2020 CA Goal). This goal is to construct cleanup remedies at 95% of
the 3,747 facilities in the 2020 Corrective Action Universe of facilities (the 2020 CA Universe)
by the year 2020.
In the strategy, EPA announced that after 18 months of implementation, EPA and its state
partners would assess the contribution of NESCA in achieving progress toward the 2020 CA
Goal. As part of the assessment, EPA committed to communicate successes and limitations of
NESCA, make necessary modifications to NESCA, and develop additional tools and guidance
documents, as appropriate, to help achieve the 2020 CA Goal. EPA affirmed this commitment
again in 2011 as part of Action 13 in the Agency's Integrated Cleanup Initiative, a three-year
strategy to identify and implement improvements to the Agency's land cleanup programs.
The Office of Site Remediation Enforcement (OSRE) and the Office of Resource Conservation
and Recovery (ORCR) worked with the Regions and states to conduct an assessment of NESCA.
EPA found that NESCA has been helpful in moving facilities further along the cleanup pipeline
toward remedy construction. Based on data reviewed, in fiscal years (FY) 2010 and 2011,
Regions issued more enforcement orders than in any year since 1999. Regions and states
indicated that there is generally more consideration of enforcement and compliance assurance
tools to address contamination at Resource Conservation and Recovery Act (RCRA) corrective
action facilities during work planning and other meetings. Based on the assessment, EPA intends
to continue implementation of NESCA and has identified specific next steps as described in this
document.
BACKGROUND
Enforcement tools have long played an important role in getting corrective action facilities
cleaned up. Over the years, EPA has issued several enforcement guidance documents to
streamline the corrective action process, maximize program flexibility, expedite cleanup, and
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Assessment of the National Enforcement
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improve compliance with financial assurance obligations to ensure that funds are available for
cleanup.1
EPA established the 2020 CA Goal as part of a long-range vision for the corrective action
program, which included expanding the universe of facilities subject to goals established under
the Government Performance and Results Act (GPRA). NESCA provides a comprehensive
enforcement approach to help achieve the 2020 CA Goal, as well as the Agency's ongoing
corrective action environmental indicator (EI) goals for 2020 for current human exposures under
control and migration of contaminated ground water under control. The five components of
NESCA are:
1. Identify and prioritize facilities for corrective action enforcement and provide
factors to consider when targeting facilities for enforcement;
2. Emphasize the need for robust communication and coordination between Regions
and states and provide advice on improving such interactions;
3. Provide guidance on how to address some of the special considerations that arise
in corrective action enforcement, including use of "streamlined" orders, dealing
with companies having financial difficulties, use of authorities under the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) at RCRA corrective action facilities, establishing and enforcing
institutional controls, and increasing the transparency of enforcement efforts;
4. Discuss the importance of training and outline future training efforts; and
5. Discuss improved measures to capture both federal and state enforcement
accomplishments.
NESCA is designed to complement other tools, such as compliance assistance, to help facilities
achieve and remain in compliance with RCRA corrective action requirements. NESCA is
intended to help:
• Ensure facility accountability;
• Provide a level playing field among regulated facilities;
• Promote open and consistent communication among EPA, states, regulated
facilities, the public, and other stakeholders;
• Promote better use of enforcement and compliance tools available to EPA and
states to address enforcement and compliance issues;
• Provide opportunities for consistent joint EPA/state enforcement activities
incorporating shared approaches among the regulators in prioritizing and targeting
for enforcement; and
• Provide opportunities for enforcement actions using authorities found in statutes
other than RCRA or in combination with RCRA, such as joint RCRA/CERCLA
orders.
1 See, e.g., "Enforcement Approaches for Expediting RCRA Corrective Action" (Jan. 2001); "Interim Guidance on
Financial Responsibility for Facilities Subject to RCRA Corrective Action" (Sept. 30, 2003); and "Re suits-Based
Approach and Tailored Oversight Guidance for Facilities Subject to Corrective Action under Subtitle C of the
Resource Conservation and Recovery Act" (Sept. 2004). For a complete listing of policy and guidance documents
regarding RCRA corrective action visit http://cfpub.epa.gov/compliance/resources/policies/cleanup/rcra.
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Assessment of the National Enforcement
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ASSESSMENT PLAN
The assessment of NESCA was conducted in three stages. The first stage involved an internal
analysis of corrective action enforcement data from the RCRA Information (RCRAInfo)
database and the Integrated Compliance Information System (ICIS). The second stage involved
soliciting feedback from program implementers to identify and select a set of issues that impact
the implementation of NESCA. In this stage, discussions with the Regions and states during
national meetings and conference calls were critical. In the third stage, the NESCA assessment
team prepared a written summary of the assessment focus areas and developed recommendations
for future action.
ANALYSIS OF CORRECTIVE ACTION ENFORCEMENT DATA
From the beginning of FY 1980 to the end of FY 2011, our data indicate that EPA has issued 657
corrective action orders at 492 facilities. The following graph shows the number of enforcement
orders reported in RCRAInfo from 1980-2009. For FY 2010, the primary data source for these
numbers was information gathered during conference calls between Headquarters and each
Region. For FY 2011, the primary data source for these numbers was information gathered from
ICIS.
Federal Enforcement Actions Issued
1980 to 2011
90
80
70
60
50
40
30
20
10
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FY 1980-2009 Data Source: RCRAInfo. Data Pull 12/30/2011. FY 2010 based on regional feedback. FY 2011 Data
Source: ICIS. Data Pull 12/30/2011.
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Assessment of the National Enforcement
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For the 492 facilities where corrective action orders have been issued:
• 304 facilities have met remedy construction (61.8% of facilities in the 2020 CA Universe
that were issued orders);
• 419 have met the groundwater EI (85.2% of facilities in the 2020 CA Universe that were
issued orders); and
• 329 have met the human exposures EI (66.9% of facilities in the 2020 CA Universe that
were issued orders).
For the 3,747 facilities in the 2020 CA Universe, by the end of fiscal year 2011:
• 1,563 facilities have met remedy construction (41.7% of the 2020 CA Universe);
• 2,507 facilities have met the groundwater EI (66.9% of the 2020 CA Universe); and
• 2,870 facilities have met the human exposures EI (16.6% of the 2020 CA Universe).
When the data for these two groups are compared, it appears that the facilities subject to
corrective action orders have achieved remedy construction and met the groundwater
environmental indicator goals at a higher rate than the overall 2020 CA Universe of facilities.
Many factors may be contributing to this result, but it likely is due in part to the fact that EPA
issued most of these corrective action orders many years ago (during the late 1980s and early
1990s), and the long-term results of those early efforts are now becoming clear. During that
time, EPA focused its efforts in the corrective action program on that subset of the universe of
facilities that were identified as posing the highest risk. In addition, most states were not
authorized for corrective action whereas today, 42 states and the territory of Guam are authorized
for corrective action.
ASSESSMENT FOCUS AREAS
EPA identified the following twelve areas, discussed in further detail below, to evaluate:
(1) RCRA authorities;
(2) Enforceable instruments;
(3) Targeting;
(4) Environmental justice;
(5) States;
(6) Communication and coordination;
(7) Financial assurance;
(8) Use of CERCLA authorities;
(9) Training;
(10) Measuring progress and results;
(11) Scope of the NESCA universe of facilities; and
(12) Resources.
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Assessment of the National Enforcement
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1. Use of RCRA Authorities
As explained above, in FYs 2010 and 2011, there was a notable increase in the
number of enforcement orders issued. Some Regions also reported that NESCA
prompted them to consider using creative enforcement approaches, as well as to
discuss the use of enforcement more often during discussions with states. In several
cases, new orders were issued to implement remedies or to include financial
assurance requirements because previous orders did not include such provisions.
During FYs 2010 and 2011, EPA issued orders that addressed corrective action under
the following authorities:
• RCRA Section 3008(a) - 1
• RCRA Section 3008(h) - 23
• RCRA Section 3013-7
• RCRA Section 7003 - 8
• RCRA Section 7003/CERCLA Section 106-1
• CERCLA Sections 104, 106, 107 & 122 - 1
• CERCLA Section 106-1
• CERCLA Section 122-1
Generally, work is progressing at the facilities under these orders, delays are limited
and compliance is high. Since the facilities that were issued such orders were at
various stages of the cleanup pipeline, the complete impact of these orders will not be
apparent for several years.
2. Enforceable Mechanisms
NESCA encourages the use of enforceable mechanisms, such as orders and permits,
as appropriate, to address delays in corrective action projects. Where an enforceable
mechanism is created, NESCA encourages Regions and states to include enforceable
language (i.e., clear deadlines and clear statements regarding corrective action
process and deliverables). NESCA also encourages use of appropriate enforcement
tools when there is a violation of either a federal or state permit or order, including
schedules in work plans, financial assurance, or other requirements contained in
documents attached to a permit or order and/or incorporated by reference.
3. Targeting
Each Region was asked to identify five to ten facilities to target for corrective action
enforcement in FY 2011. During that year, Regions completed 20 corrective action
enforcement actions, five of which were at facilities that were not in the 2020 CA
Universe. In FY 2010, Regions completed 23 corrective action enforcement actions,
eight of which were at facilities that were not in the 2020 CA Universe.
The assessment found that Regions generally did not adhere to the framework
provided in NESCA for assessing, targeting and prioritizing facilities for
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enforcement. Prioritization generally was not applicable because there were so few
EPA-lead facilities identified. Regions did use some of the factors identified in
NESCA in targeting facilities for enforcement, but certain aspects of the framework
could not be applied without conducting inspections or file reviews. In addition,
identifying facilities at which cleanup is not proceeding at an acceptable pace is
difficult because site visits to determine compliance with corrective action obligations
may not be consistently reported in national databases. Only one of the 43 orders
issued during FYs 2010 and 2011 was to address non-compliance, and it was issued
under the Mineral Processing National Enforcement Initiative to a facility that was
not in the 2020 CA Universe. The rest of the orders that were issued during that time
period required investigation and cleanup activities.
4. Environmental Justice Considerations
Within the NESCA framework for assessing, targeting and prioritizing facilities for
corrective action enforcement, NESCA encouraged Regions to focus attention on
identifying and addressing disproportionate impacts on minority, low-income, tribal
and other vulnerable populations. NESCA recognized that many Regions have their
own environmental justice (EJ) mapping tools and that there was no national
requirement to use any specific tool for priority setting or reporting.
During the assessment, EPA learned that the EPA-lead portion of the 2020 CA
Universe is small, and EJ is usually a component of those facilities addressed.
However, Regions generally focus attention on facilities that may present or are
presenting a major threat to human health or the environment, irrespective of whether
the facility was in an EJ community. When a facility is located in an EJ community,
Regions generally engage in enhanced community outreach and involvement. As an
example, Region 4 reported devoting a significant amount of resources to conducting
such outreach activities at facilities in EJ communities.
5. States
Forty-two states and the territory of Guam are currently authorized for RCRA
corrective action. In authorized states, with the exception of EPA-lead corrective
action facilities under a federal permit or federal corrective action order, it is
generally expected that the state will be the enforcement lead for all corrective action
activities. Although states were not expected to adhere to the framework provided in
NESCA for assessing, targeting and prioritizing facilities for enforcement, Regions
and authorized states were encouraged to begin implementing NESCA immediately.
Since NESCA was issued, a few Regions reported receiving one or two referrals of
facilities in the 2020 CA Universe from their states. This practice continues on a case-
by-case basis as determined by the state in consultation with the Region. Although an
increase in meetings between Regions and states cannot be attributed to NESCA,
EPA has concluded that implementation of NESCA has generally resulted in
increased discussion of enforcement options at corrective action facilities not making
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significant progress toward cleanup. EPA believes that it is important to continue
such discussions with states, as well as within the Agency.
6. Communication and Coordination
NESCA recognized the importance of communication and coordination among all
Headquarters, Regional and state offices addressing corrective action issues.
Although the existing working relationship between the Regions and their respective
states was generally unchanged after the introduction of NESCA, the strategy
appeared to contribute to a heightened awareness and increased discussion of using
enforcement as a tool to reach the 2020 CA Goal, both within Regions and between
Regions and their states.
NESCA also contributed to the development of the "Best Practices to Enhance
Coordination in the RCRA Program," issued by the Office of Enforcement and
Compliance Assurance (OECA) and the Office of Solid Waste and Emergency
Response (OSWER) on February 22, 2012, which provides recommended practices to
improve regional coordination among the permitting, corrective action, enforcement,
compliance assurance, and legal components of the RCRA program, see
http://www.epa.gov/enforcement/cleanup/documents/policies/rcra/coor-rcraprogram-
1 l.pdf. This memorandum acknowledges the importance of coordination within EPA
and between EPA and the states.
7. Financial Assurance
Financial issues, such as bankruptcy or financial distress of companies, are some of
the most challenging issues regulators must address. Some Regions reported that,
after NESCA issuance, they added stronger financial assurance provisions or added
financial assurance for the first time by: (1) issuing orders covering work in progress;
or (2) revising existing orders to include financial assurance provisions where an
order was in place but had no financial assurance requirements.
8. Use of CERCLA
Authorities pursuant to RCRA and the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA, commonly known as Superfund) may be
used effectively to address a contaminated facility with equally protective results.
NESCA identified several advantages of CERCLA, including broader information
gathering authority, additional responsible parties liable for cleanup, use of the Trust
Fund, cost recovery, and use of special accounts. EPA found widespread interest
among regulators in increasing use of CERCLA authorities at RCRA facilities. As
stated in the authorities section above, use of CERCLA authorities at RCRA facilities
occurred at 4 facilities in FYs 2010 and 2011.
2 See, e.g., OSWER/OECA Memorandum, Coordination Between RCRA Corrective Action and Closure and
CERCLA Site Activities (Sept. 24, 1996); and OECA/DOJ Memorandum, Use of CERCLA § 106 to Address
Endangerments That May Also Be Addressed Under Other Environmental Statutes (Jan. 18, 2001).
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9. Training
NESCA recognized the need for training and capacity building within the Regions
and states to use compliance monitoring and enforcement, as appropriate, to achieve
the 2020 CA Goal. EPA made a concerted effort to provide training during the first
18 months of the strategy's implementation. For example, EPA hosted a workshop in
conjunction with the Association of State and Territorial Solid Waste Management
Officials (ASTSWMO) annual meeting in the fall of 2010 to highlight ways in which
the enforcement and permitting programs can work together to ensure cleanup
objectives are met. Additionally, to help implement NESCA, RCRA corrective action
enforcement modules were presented at the following events: the RCRA Enforcement
Practitioners training courses held at Headquarters in February 2010 and in some
Regions (Region 4 in June 2010, Region 3 in February 2011, and Region 7 in
December 2011); and in the ORCR sponsored "RCRA Corrective Action Training:
Strategies for Meeting the 2020 Vision" held in each Region during FYs 2009 and
2010.
NESCA also recognized the need for continued training in financial assurance
mechanisms and cost estimation. In 2010, EPA launched a web-based tool accessible
to all Regions and states called the Financial Responsibility Enforcement Tool
(FRET). FRET provides regulators assistance in evaluating compliance of financial
assurance submissions as well as serving as a compilation of financial assurance, cost
estimating, bankruptcy, and other financial resources. To give an introduction to the
tool and demonstrate its use, EPA provided two webinars, open to all states and
territories, and delivered a workshop at the ASTSWMO mid-year meeting in April
2011.
10. Measuring Progress and Results
NESCA acknowledged that "[t]o truly account for the impact [of NESCA] on
attaining the 2020 CA Goal, EPA and the states need to be able to measure their
combined enforcement efforts." After NESCA was issued, the GPRA target for
volume of contaminated media addressed (VCMA) was established. In fiscal year
2011, RCRA corrective action orders addressed three million cubic yards of
contaminated media. In fiscal year 2011, the number of corrective action orders was
also reported in OECA's annual accomplishments.
11. Scope of the NESCA Universe
Regions and states use enforcement authorities to compel investigation and cleanup at
some RCRA facilities that are not in the 2020 CA Universe of facilities. The
principles, practices and tools discussed in NESCA also can be used to address
facilities not in the 2020 CA Universe of facilities. During the strategic planning
process, EPA may add or remove facilities from the 2020 CA Universe that it reports
on for GPRA purposes. To date, EPA has not made significant changes to the overall
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Assessment of the National Enforcement
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number of facilities in this universe except at the beginning of the three year GPRA
cycles. The next such cycle begins in FY 2014.
12. Resources
OSWER provides each Region with a corrective action budget that is intended to be
used for all aspects of corrective action, including compliance monitoring and
enforcement. Regions are also responsible for distributing money to their state and
tribal partners through RCRA State and Tribal Assistance Grants (STAG), and states
have to match one third of STAG funds to implement their RCRA program. OSRE
has a small corrective action budget, which comes from OECA's Environmental
Program and Management funds.
In a July 2011 report, the Government Accountability Office (GAO) concluded that
significant progress has been made in the corrective action program, but"... resource
constraints, the size and cost of the program's remaining workload, and projected
federal and state budget cuts are leading EPA and state regulators to question whether
this rate of progress can be sustained."3 GAO recommended that EPA develop an
assessment of the Agency's remaining corrective action workload, determine the
extent to which the Agency has the resources it needs to meet the 2020 CA Goals4,
and take steps to either reallocate its resources to the program, or revise the goals.
EPA is conducting that assessment in response to GAO's recommendation.
NEXT STEPS
Based on the feedback received and findings made during the assessment, EPA recommends the
following actions to be implemented in the next 18 months:
> Increase emphasis on communication and coordination within EPA and with state
partners
• Implement "Best Practices to Enhance Coordination in the RCRA Program"
document, dated February 22, 2012, as appropriate (e.g., have compliance
assurance and enforcement staff and facility managers coordinate with permit
writers to promote enforceable permit conditions).
• Emphasize coordination between each Region and Headquarters and between
EPA and the states.
• Promote the appropriate use of CERCLA authority at RCRA facilities.
3 GAO, "Early Goals Have Been Met in EPA's Corrective Action Program, but Resource and Technical Challenges
will Constrain Future Progress," GAO-11-514 at 34 (Aug. 25, 2011) available at http://www.gao.gov/
products/GAO-11-514.
4 GAO's reference to the Agency's "2020 Goals" includes the goal to complete construction of remedies, which is
referred to as "the 2020 CA Goal" in this document, as well as goals for meeting two environmental indicators, i.e.,
controlling human exposures to contaminants at 95% of the 2020 baseline facilities, and controlling the migration of
contaminated groundwater at 95 percent of the 2020 baseline facilities.
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> Explore opportunities for compliance monitoring
• Explore development of new compliance measures that are consistent with and
measure progress toward the Agency's goals for the 2020 CA Universe.
• Explore development of a corrective action module as part of the RCRA inspector
training effort that is being led by OECA's Office of Compliance, with assistance
from states, Regions and other Headquarters offices, and deliver such training.
• Review and evaluate how EPA and the states are tracking compliance schedules,
cleanup progress and substantial non-compliance at facilities under an order or
permit.
• Develop guidance for corrective action to address deficient deliverables submitted
by owners/operators conducting cleanup at corrective action facilities.
• Explore ways to incorporate electronic reporting and other technology into
corrective action activities to improve compliance.
> Increase State Role in Corrective Action Compliance Monitoring and Enforcement
• Emphasize advantages of conducting compliance monitoring activities to states
during meetings and conference calls and provide training where appropriate.
• Collaborate with states to identify focus areas to improve compliance monitoring
and enforcement.
CONCLUSION
Monitoring compliance and conducting enforcement where appropriate are important activities
to help get facilities cleaned up and ensure that human health and the environment are protected.
NESCA's initial focus was on issuance of enforcement orders for investigation and cleanup
activities.
To ensure accountability in the corrective action program, the next step in this effort should also
focus on monitoring compliance. EPA and state regulators should assess the facilities in their
universe to determine if meaningful progress along the corrective action pipeline is being made.
If this assessment reveals that certain facilities in their universe are not accomplishing
investigations or cleanups at an acceptable pace, appropriate action should be taken and
documented. Headquarters will continue to assist Regions and states in their compliance
monitoring and enforcement efforts.
Information on NESCA is available at
http://www.epa.gov/compliance/cleanup/rcra/corraction/index.html
DISCLAIMER
This assessment report is intended to inform policy decisions and to provide increased
transparency to NESCA implementation. It does not provide legal advice, have any legally
binding effect, or expressly or implicitly create, expand, or limit any legal rights, obligations,
responsibilities, or benefits from any person. This document is not intended as a substitute for
reading the statute or the guidance documents described above.
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