Corrective Action for Releases From Solid Waste Management Units at Hazardous Waste Management Facilities

Federal RegisterMay 1, 1996

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SUMMARY: Today's action has three purposes. First, it introduces EPA's

strategy for promulgating regulations governing corrective action for

releases from solid waste management units at hazardous waste

management facilities under the Resource Conservation and Recovery Act

(RCRA) and requests information to assist in identification and

development of potential improvements to the protectiveness,

responsiveness, speed or efficiency of corrective actions. The Agency

originally proposed corrective action regulations on July 27, 1990.

Second, to provide context for potential revisions to the corrective

action program, today's Notice includes a general status report on the

corrective action program and how it has evolved since the 1990

proposal, and provides guidance on a number of topics not fully

addressed in 1990. Third, it emphasizes areas of flexibility within the

current program and describes program improvements currently underway

or under consideration.

DATES: To ensure consideration, information and data must be received

on or before July 30, 1996.

EPA will hold a public hearing on this Notice on June 3, 1996.

ADDRESSES: Written comments responding to today's Notice should be

addressed to: Docket Clerk, U.S. Environmental Protection Agency, RCRA

Docket (OS-305), 401 M Street SW, Washington, D.C. 20460. Comments sent

by special delivery, such as overnight express services, should be

addressed to: RCRA Docket Information Center (RIC), Crystal Gateway

One, 1235 Jefferson Davis Highway, First Floor, Arlington, VA 22202.

Electronic comments should be addressed to: RCRA-

D[email protected].

The June 3, 1996 public hearing will be held at the Key Bridge

Marriott, located at 1401 Lee Highway, Arlington, VA 22209. Advance

requests to speak at the hearing should be submitted, in writing, to:

Hugh Davis (5303W) U. S. Environmental Protection Agency, 401 M Street,

SW, Washington, DC 20460.

For important additional instructions on submitting comments or

making a request to speak at the public hearing, see Supplementary

Information.

FOR FURTHER INFORMATION CONTACT: For general information, contact the

RCRA Hotline at (800) 424-9346 (toll-free) or (800) 553-7672 (hearing

impaired), or (703) 412-9810 (locally), Monday-Friday, 8:00-5:00

eastern standard time. For technical information, contact Hugh Davis,

Office of Solid Waste (5303W), U.S. Environmental Protection Agency,

401 M Street SW, Washington, D.C. 20460. Phone, (703) 308-8633. E-mail

address, [email protected].

SUPPLEMENTARY INFORMATION:

Instructions for Submitting Comments and Requests To Speak at the

Public Hearing

Commenters should place the docket number (F-96-CA2P-FFFFF) on all

comments and submit an original and two copies. Comments also may be

submitted electronically, through the Internet. Comments submitted

electronically should be in ASCI to avoid the use of special characters

and encryptions.

The official record for this action will be kept in paper form. EPA

will transfer all comments received electronically into paper form and

place them, with comments submitted directly in writing, in the

official record. EPA responses to comments will be recorded in a notice

in the Federal Register or in an official record for this action. EPA

will not immediately reply to electronic comments other than to seek

clarification of comments that may be garbled in transmission or during

conversion to paper form.

Confidential business information (CBI) may be included in

comments, however, to ensure continued confidentiality, it must be

submitted under separate cover. If including CBI, commenters should

submit an original and two copies to: U.S. Environmental Protection

Agency, RCRA CBI Document Control Officer, OSW (5303W), 401 M Street

SW, Washington, D.C. 20460. Place the docket number (F-96-CA2P-FFFFF)

on the CBI and include a reference to any non-CBI comments submitted.

Do not submit CBI electronically.

Docket materials may be reviewed by appointment by calling (703)

603-9230. The docket is located on the first floor of the Crystal

Gateway building at 1235 Jefferson Davis Highway in Arlington, Virginia

and is open from 9:00 a.m. to 4:00 p.m., Monday through Friday,

excluding Federal holidays. A maximum of 100 pages of material may be

copied at no cost from any one regulatory docket. Additional copies are

$0.15 per page. The main switchboard number for the hotel is (703) 524-

6400.

Individuals interested in directions to the June 3, 1996 public

hearing at the Key Bridge Marriott or room reservations should contact

the hotel directly at (703) 524-6400. Registration for the hearing will

begin at the hotel at 8:30 am. The hearing will begin at 9:00 am. and

end at 5:00 pm unless concluded earlier. Oral and written statements

may be submitted at the public hearing. Time for the public hearing is

limited; oral presentations will be made in the order that requests are

received and will be limited to 15 minutes, unless additional time is

available. Advance requests to speak at the public hearing should be

clearly marked as a request to speak at the public hearing and include

the scheduled date of the hearing (June 3, 1996) and the docket number

for this action (F-96-CA2P-FFFFF). Requests to speak at the public

hearing may also be made on the day of the hearing, by registering at

the door; request to speak by individuals who choose to register at the

door on the day of the hearing will be granted in the order received,

as time permits. All individuals who choose to speak at the public

hearing are requested to provide a paper copy of their testimony for

the record.

Internet Access

This notice is available on the Internet. To access today's Notice

electronically:

Gopher: gopher.epa.gov

WWW: http://www.epa.gov

Dial-up: (919) 558-0353

From the main EPA Gopher menu, select: EPA Offices and Regions/

Office of Solid Waste and Emergency Response (OSWER)/Office of Solid

Waste (RCRA)/Hazardous Waste/Corrective Action.

FTP: ftp.epa.gov

Login: anonymous

Password: your Internet address

Files are located in /pub/gopher/oswrcra

Glossary of Commonly Used Acronyms

ASTM--American Society for Testing and Materials

ASTSWMO--Association of State and Territorial Solid Waste Management

Officials

CAMU--Corrective Action Management Unit

CAP--Corrective Action Plan

CERCLA--Comprehensive Environmental Response, Compensation and

Liability Act

CMI--Corrective Measures Implementation

[[Page 19433]]

CMS--Corrective Measures Study

CSGWPP--Comprehensive State Groundwater Protection Program

DQO--Data Quality Objective

EAB--Environmental Appeals Board

FACA--Financial Assurance for Corrective Action

HSWA--Hazardous and Solid Waste Amendments

LDR--RCRA Land Disposal Restrictions

MCL--Maximum Contaminant Limit

MTR--RCRA Minimum Technology Requirements

NCAPS--National Corrective Action Prioritization System

NPL--National Priorities List

NCP--National Oil and Hazardous Substances Pollution Contingency

Plan

OSW--EPA Office of Solid Waste

OSWER--EPA Office of Solid Waste and Emergency Response

POC--Point of Compliance

RBCA--Risk Based Corrective Action (refers to ASTM standard E1739-

95)

RCRA--Resource Conservation and Recovery Act

RFA--RCRA Facility Assessment

RFI--RCRA Facility Investigation

RU--Regulated Unit

SWMU--Solid Waste Management Unit

SSG--EPA Soil Screening Guidance

TI--Technical Impracticability

TSDF--Treatment, Storage, or Disposal Facility

UST--Underground Storage Tank

Outline

I. Background

A. Statutory and Regulatory Requirements

B. Summary of Today's Notice

II. Subpart S Initiative

A. Objectives

B. Outreach

1. States

2. Environmental and Public Interest Community

3. Regulated Community

4. Other Federal Agencies

C. On-Going Role of the States

D. Strategy and Schedule

E. Major Corrective Action Program Developments Since 1990

1. Stabilization Initiative

2. Environmental Indicators for Corrective Action

3. Corrective Action Plan

4. CAMU Rule

5. Other Developments

F. Relationship to Other Agency Initiatives and Rulemakings

1. HWIR Media

2. Post-Closure Rule

a. The Post-Closure Permit Requirement

b. Applicability of 40 CFR Parts 264 and 265 to Regulated Units

Requiring Corrective Action

c. State Corrective Action Enforcement Authority

3. RCRA Statutory Reform

4. Improvements to the Procedures for Authorization of State

Hazardous Waste Program Revisions

5. Superfund Reauthorization

6. Superfund Administrative Improvements and Reforms

a. Guidance on Land Use

b. Soil Screening Guidance

c. Presumptive Remedies

d. Community Based Remedy Selection

7. Brownfields Initiative

8. Environmental Justice

9. Permits Improvement Team

III. Corrective Action Implementation

A. Program Management Philosophy

B. Scope and Definitions

1. Concept of Parity

2. Voluntary Cleanup

3. Definitions

a. Facility

b. Release

c. Solid Waste Management Unit

d. Hazardous Waste and Hazardous Constituent

C. Corrective Action Process

1. Initial Site Assessment

a. Facility Owners/Operators May Gather RFA Information

b. Release Assessment

c. National Corrective Action Prioritization System

2. Site Characterization

a. Conceptual Site Models

b. Innovative Site Characterization Technologies

c. Tailored Data Quality Objectives

d. Use of Existing Information to Streamline the Remedial

Investigation

e. Role of Action Levels

f. Integration With the Evaluation of Remedial Alternatives

3. Interim Actions

4. Evaluation of Remedial Alternatives

a. Integration With Site Characterization

b. Formal Evaluation Not Always Necessary

c. Facility Owner/Operator Should Recommend a Preferred Remedy

5. Remedy Selection

a. Balancing Treatment and Exposure Control

b. Remedy Selection Criteria

c. Media Cleanup Standards

d. Points of Compliance

e. Compliance Time Frame

f. Site-Specific Risk Assessments

g. Ecological Risk

h. Determinations of Technical Impracticability

i. Natural Attenuation

j. Land Use

6. Remedy Implementation

a. Performance Based Corrective Measures Implementation

b. Performance Monitoring

c. Completion of Corrective Measures

D. Incorporation of Corrective Action in RCRA Permits

E. Corrective Action Orders

F. Public Involvement and Environmental Justice

G. Financial Assurance

IV. Corrective Action Program Priorities

V. Request for Comment and Data

A. General

B. Resolution of the 1990 Proposal.

C. Focusing the Corrective Action Program on Results

1. Performance Standards

2. Less Focus on Solid Waste Management Units

D. Using Non-RCRA Authorities for Corrective Action

1. State Cleanup Programs

2. Enhanced Flexibility for States with EPA-Endorsed CSGWPPs

3. Voluntary Corrective Action

4. Corrective Action at Interim Status Facilities

5. Independent or Self-Implementing Corrective Action

6. Consistency With the CERCLA Program

7. ASTM RBCA Standard

8. Definition of Facility for Corrective Action

E. Balance Between Site-Specific Flexibility and National

Consistency

1. Land Use

2. Points of Compliance

3. Standardized Lists of Action Levels and Media Cleanup Levels

4. Area Wide Contamination Issues

5. Ecological Risk

6. Risk Assessment Methods

F. Public Participation and Environmental Justice

G. When Permits Can Be Terminated

H. Effect of Property Transfer on Corrective Action Requirements

I. Financial Assurance for Corrective Action

J. State Authorization

I. Background

A. Statutory and Regulatory Requirements

In the 1984 Hazardous and Solid Waste Amendments (HSWA) to the

Resource Conservation and Recovery Act (RCRA), Congress directed EPA to

require corrective action for all releases of hazardous waste and

hazardous constituents from solid waste management units at facilities

seeking RCRA permits (i.e., hazardous waste Treatment, Storage or

Disposal Facilities or TSDFs) regardless of the time at which waste was

placed in the units. When corrective action cannot be completed prior

to permit issuance, the statute directs EPA to specify corrective

action schedules of compliance and financial assurance in all permits

issued under RCRA section 3005. In addition, EPA is directed to require

that corrective action be taken beyond facility boundaries unless

facility owners/operators demonstrate to the Agency's satisfaction

that, despite their best efforts, they were unable to obtain the

necessary permission to undertake off-site corrective action. (See,

RCRA section 3004 (u) and (v), 42 U.S.C. 6924 (u) and (v).) At the same

time, Congress enacted the RCRA permit omnibus provision directing

that, ``each permit issued under [RCRA Section 3005] contain such terms

and conditions as the Administrator determines necessary to protect

human health and the environment.'' (See, RCRA sections 3005(C)(3), 42

U.S.C. 6925(c)(3).) EPA is authorized to require corrective action

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at interim status facilities under RCRA section 3008(h), 42 U.S.C.

6928(h).

At the time the new corrective action provisions were enacted,

corrective action for releases to groundwater from RCRA regulated units

was already required under 40 CFR part 264, subpart F. RCRA regulated

units are defined in 40 CFR 264.90 as surface impoundments, waste

piles, land treatment units, and landfills that received hazardous

waste after July 26, 1982; they are a subset of the universe of solid

waste management units. The 1984 HSWA amendments extended corrective

action authority at TSDFs to all waste management at units that

received solid or hazardous waste at any time. In the legislative

history of RCRA section 3004(u), Congress noted that one purpose of the

new corrective action requirements was to ensure that RCRA facilities

did not become Superfund cleanup sites. The legislative history records

that, ``Unless all hazardous constituents released from solid waste

management units at permitted facilities are addressed and cleaned up

the Committee is deeply concerned that many more sites will be added to

the future burdens of the Superfund program with little prospect for

control or cleanup. The responsibility to control such releases lies

with the facility owner and operator and should not be shifted to the

Superfund program, particularly when a final permit has been requested

by the facility.'' (See, H.R. Rep. No. 198, 98th Cong., 1st Sess., part

1, 61 (1983).)

In July 1985, EPA codified corrective action requirements at 40 CFR

264.90(a)(2); 264.101; 270.60(b) and 270.60(c). (See, 50 FR 28702, July

15, 1985.) These regulations reiterate the statutory language of RCRA

section 3004(u) by requiring facility owners/operators seeking RCRA

permits to institute corrective action, as necessary to protect human

health and the environment, for all releases of hazardous waste and

constituents from solid waste management units at the facility. When

corrective action cannot be completed prior to permitting, EPA requires

that all permits contain corrective action requirements, schedules of

compliance, and financial assurance. In 40 CFR 270.60(b) and 270.60(c),

EPA clarified that corrective action is also required for some

facilities with RCRA permits-by-rule, including hazardous waste

management facilities with permits issued under the Underground

Injection Control program and the National Pollution Discharge

Elimination System (NPDES) permitting program.

In December 1987 (52 FR 45788, December 1, 1987), EPA promulgated

additional corrective action regulations to codify the statutory

language of RCRA Sec. 3004(v), requiring corrective action for releases

beyond the facility boundary. EPA also established permit application

requirements necessary to support corrective action implementation, and

modified the corrective action requirements for underground injection

wells with RCRA permits-by-rule.

On July 27, 1990 (55 FR 30798), EPA proposed detailed regulations

to govern the RCRA corrective action program. The 1990 proposal was

designed to be the analogue to the CERCLA program's National Oil and

Hazardous Substances Pollution Contingency Plan (NCP). As such, it

addressed both technical (e.g., cleanup levels, remedy selection,

points of compliance) and procedural (e.g., definitions, permitting,

reporting) elements of the corrective action program. In the 1990

proposal, EPA emphasized the need for site-specific flexibility in

cleanup programs. The Agency stated, ``Because of the wide variety of

sites likely to be subject to corrective action, EPA believes that a

flexible approach, based on site-specific analyses is necessary. No two

cleanups will follow exactly the same course, and therefore, the

program has to allow significant latitude to the decision maker in

structuring the process, selecting the remedy, and setting cleanup

standards appropriate to the specifics of the situation.'' (See, 55 FR

30802.)

The 1990 proposal was the subject of significant public comment.

Although EPA has finalized only a few sections of the 1990

proposal,1 the bulk of the proposal is routinely used as guidance

during corrective actions.

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\1\ See 58 FR 8658, February 16, 1993, ``Corrective Action

Management Units'' where EPA finalized regulations addressing the

creation, management, and closure of units created specifically for

purposes of managing remediation wastes.

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B. Summary of Today's Notice

Today's Notice introduces EPA's strategy for promulgation of

corrective action regulations and requests public input on a variety of

issues and concepts associated with corrective action. To provide

context for potential revisions to the corrective action program and

because the Agency's philosophy and strategies have evolved in many

respects since 1990, today's Notice also includes a general status

report on the corrective action program and how it has grown since the

1990 proposal, and provides guidance on a number of topics not fully

addressed in 1990. Finally, today's Notice emphasizes the flexibility

inherent in the existing corrective action program, discusses steps EPA

is already taking to improve corrective actions and requests comments

on new approaches to expedite and simplify facility cleanups.

In Section I of today's Notice, EPA identifies the statutory and

regulatory basis of the corrective action program.

Section II of today's Notice introduces EPA's Subpart S Initiative.

Through the Subpart S Initiative the Agency intends to identify and

implement improvements to the protectiveness, responsiveness, speed and

efficiency of the corrective action program. Section II includes

discussions of the Subpart S Initiative objectives, outreach, and

schedule. It also includes discussions of major corrective action

program guidance and policy milestones that have occurred since 1990,

and the relationship of the Subpart S Initiative to other agency

rulemakings and initiatives.

In Section III, EPA discusses corrective action implementation,

describes how certain program elements have evolved since 1990, and

provides guidance on a number of topics that were not fully addressed

in the 1990 proposal. This section emphasizes areas of flexibility in

the current corrective action program and highlights innovative

approaches some program implementors and facility owners/operators have

used to expedite cleanups. Readers are urged to pay particular

attention to Section III in order to gain an overall understanding of

the Agency's latest thinking on corrective action implementation.

Section IV of today's Notice builds on the detailed discussions in

Section III by providing concise statements of EPA's corrective action

implementation goals and strategies.

In Section V of today's Notice, EPA requests comments and data on a

variety of issues to assist it in identifying and developing

improvements to the corrective action program. In some cases, the

Agency raises new concepts that would likely warrant re-proposing

regulations or developing new guidance documents; in other cases,

concepts were addressed in the 1990 proposal but are included in

Section V because the Agency is requesting additional comment and data

at this time.

II. Subpart S Initiative

EPA and the states have made considerable progress in implementing

the corrective action requirements; however, despite this progress, the

overall implementation of the corrective action program has been

subject to considerable criticism. States,

[[Page 19435]]

environmental groups and the regulated community have raised many

concerns, including: slow progress in achieving cleanup or other

environmental results; an emphasis on process and reports over actual

work in the field; unrealistic, impractical or overly conservative

cleanup goals; excessive and detailed oversight; reluctance to

authorize or recognize the work of state cleanup programs; and, lack of

meaningful public participation. EPA believes that many of these

concerns have been overstated; however, at the same time, it recognizes

that improvements to the corrective action program are necessary. EPA

and the states now have more than ten years experience in implementing

the corrective action requirements. EPA believes the time has come to

reevaluate the RCRA corrective action program to identify and implement

improvements to the program's speed, efficiency, protectiveness and

responsiveness, and to focus the program more clearly on environmental

results. The reevaluation effort is known as the Subpart S Initiative.

As part of the Subpart S Initiative, EPA has been working with

states and other stakeholders to develop a comprehensive strategy to

identify and develop improvements to the corrective action program and

promulgate final corrective action regulations. The Subpart S

Initiative involves assessment of the current corrective action

program, outreach to stakeholders, finalization of some elements of the

1990 proposal, development of new proposals and guidance documents, and

today's Notice.

EPA is committed to substantive consistency among its cleanup

programs. For that reason, the Subpart S Initiative is being

coordinated closely with the Superfund program, including the Superfund

administrative improvements efforts and Superfund reauthorization

activities.

A. Objectives

Taking into consideration corrective action implementation

experience, recent feedback from stakeholders, and the comments

received on the 1990 proposal, EPA has developed five objectives for

the Subpart S Initiative:

(1) Create a consistent, holistic approach to cleanups at RCRA

facilities;

(2) Establish protective, practical cleanup expectations;

(3) Shift more of the responsibilities for achieving cleanup goals

to the regulated community;

(4) Focus on opportunities to streamline and reduce costs; and,

(5) Enhance opportunities for timely, meaningful public

participation.

Implementation of these five objectives will involve new approaches

to corrective action and may necessitate significant revisions to the

existing corrective action program. In adopting any new approach, EPA

will not sacrifice protection of human health and the environment or

the meaningful involvement of the public and affected communities.

B. Outreach

EPA believes the experiences of states, the regulated community,

other Federal agencies, and environmental and public interest groups

will be tremendously valuable as it works to identify and develop

improvements to the corrective action program. Today's Notice reflects

the involvement of interested stakeholder groups, as discussed below.

EPA is committed to a continuing and meaningful dialogue with these

groups as the Subpart S Initiative develops. As the Subpart S

Initiative progress, EPA will continue to identify interested

stakeholder groups and invite their input and involvement.

1. States

In December and January 1995, EPA met twice with interested state

representatives to solicit their early input in the Subpart S

Initiative. In general, these state representatives advised that the

corrective action program: Retain considerable flexibility; emphasize

results over process; be generally consistent with the CERCLA program;

address consistency issues within the RCRA program (e.g., between

cleanups at SWMUs and regulated units); address risk assessment and

risk management, including ecological risk; empower states and expedite

state authorization; and, encourage stabilization without discouraging

final cleanups. State representatives also strongly advised against

finalizing corrective action regulations in pieces, favoring the

comprehensive approach reflected in today's Notice. The ongoing role of

the states in the Subpart S Initiative is discussed below.

2. Environmental and Public Interest Community

EPA wrote nine environmental and public interest groups requesting

their early involvement in the Subpart S Initiative. To date, EPA has

met with one environmental group, the Environmental Defense Fund (EDF).

The Environmental Defense Fund expressed support for changes in the

corrective action program to improve the speed and efficiency of

cleanups and increase opportunities for meaningful public

participation. Their suggestions include: tailoring the level of public

participation to the level of community interest; including

opportunities for public participation throughout the cleanup process;

using risk goals and clearly defined cleanup standards to make cleanups

more efficient; maintaining a throughout-the-plume/unit boundary

cleanup point of compliance; and, using deed restrictions at non-

residential cleanups. While EDF expressed general support for

consistency in technical matters between RCRA and CERCLA, they also

expressed the opinion that operating hazardous waste management

facilities, such as those typically addressed by RCRA corrective

action, have an ongoing responsibility to their communities and should,

perhaps, be held to higher cleanup standards than abandoned (i.e.,

Superfund) sites. EPA welcomes the continued involvement of EDF in the

Subpart S Initiative and will continue to look for opportunities to

involve other environmental and public interest groups.

3. Regulated Community

EPA met with and received written materials from a variety of

industry groups which offered their suggestions for improvements to the

corrective action program. In general, industry groups expressed

frustration with the pace and cost of corrective actions and what they

perceive as overly stringent cleanup criteria. Their suggestions

include increased reliance on performance standards, more emphasis on

non-residential future land use scenarios, and improved coordination

with other applicable cleanup authorities (e.g., the Superfund program

and state cleanup programs). EPA welcomes the continued involvement of

the regulated community in development of the Subpart S Initiative.

4. Other Federal Agencies

During Spring and Summer 1995, EPA held a series of meetings with

other Federal agencies, including, the Department of Defense (DOD), the

Department of Energy (DOE), the Department of Agriculture, the Council

on Environmental Quality (CEQ), and the Office of Management and Budget

(OMB). Many of these agencies own or operate facilities which are

subject to RCRA corrective action. During these meetings, EPA and the

other Federal agencies discussed potential improvements to the RCRA

corrective action and Superfund programs. EPA will continue these

discussions during development of the Subpart S Initiative.

The Department of Defense and the Department of Energy reviewed and

[[Page 19436]]

provided comments on a draft version of today's Notice and EPA met with

DOD and DOE representatives to discuss their comments and suggested

changes.

C. On-Going Role of the States

The states are the primary implementors of the corrective action

program. Because of this, EPA has actively solicited state input and

participation in the Subpart S Initiative and is developing the

Initiative in full partnership with the states. As of today's Notice,

thirteen states 2 have agreed to participate in the Subpart S

Initiative as co-regulators. During the co-regulation process, state

representatives participate actively in development of policy and

regulatory options and analyses. As discussed above, EPA has held two

meetings with state representatives to discuss development of the

Subpart S Initiative; three additional meetings and a fifty-state

review of any regulatory proposals are planned. In addition,

representatives of interested states participated actively in

development of today's Notice and reviewed and provided comment on

numerous drafts.

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\2\ These states are: Wisconsin, Texas, Georgia, Idaho, Florida,

Colorado, New York, California, Utah, Oklahoma, North Carolina,

Delaware, and Missouri.

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D. Strategy and Schedule

The Subpart S Initiative will include development of guidance and

policy documents and rulemaking. EPA intends to publish rule language

in fall 1997. In order to present the Agency's visions for the

corrective action program and regulations in totality, the 1997

publication will promulgate elements of the 1990 proposal that the

Agency believes do not need additional public review and will re-

propose other program elements. Based in part on comments received in

response to Section V.B of today's Notice, EPA will determine which

elements of the 1990 proposal will be finalized without further comment

and which elements will be re-proposed.

Guidance and policy development will play an important role in the

Subpart S Initiative. The balance between guidance and policy

development and rulemaking will be determined, in part, by comments

received on today's Notice. Section V.A of this Notice requests

specific recommendations for additional policy or guidance development.

E. Major Corrective Action Program Developments Since 1990

The Subpart S Initiative builds on several recent and important

developments in the corrective action program. Many of these program

developments are addressed in the EPA guidance documents discussed

below; other program developments were associated with promulgation of

the Corrective Action Management Unit (CAMU) regulations, also

discussed below. A complete list of corrective action guidance

documents is available in the ``RCRA Corrective Action Plan,'' EPA/520-

R-94-004, OSWER Directive 9902.3-2A, May 1994, included in the docket

for today's Notice.

1. Stabilization Initiative

EPA's early implementation of the corrective action program focused

on final, comprehensive cleanups at a limited number of facilities. As

EPA and states gained more experience, it became clear that, at many

sites, final cleanups were difficult and time-consuming to achieve and

that an emphasis on final remedies at a few sites could divert limited

resources from addressing ongoing releases and environmental threats at

many other sites. As a result, in 1991, the Agency established the

Stabilization Initiative as one of the primary implementation

objectives for the corrective action program. The goal of the

Stabilization Initiative is to increase the rate of corrective actions

by focusing on near-term activities to control or abate threats to

human health and the environment and prevent or minimize the further

spread of contamination. Through the Stabilization Initiative, the

Agency is seeking to achieve an increased overall level of

environmental protection by implementing a greater number of actions

across many facilities rather than following the more traditional

process of pursuing final, comprehensive remedies at a few facilities.

Controlling exposures or the migration of a release may stabilize a

facility, but does not necessarily mean that a facility is completely

cleaned up. At some stabilized facilities, contamination is still

present and additional investigations or remediation may eventually be

required; however, as long as the stabilization measures are

maintained, stabilized facilities should not present unacceptable near-

term risks to human health or the environment and program implementors

and facility owners/operators have the opportunity to shift their

resources (either at the stabilized facility or among facilities) to

additional health or environmental concerns. Stabilization actions

should be a component of, or at least consistent with, final remedies.

More information on the Stabilization Initiative is available in the

1991 guidance memorandum ``Managing the Corrective Action Program for

Environmental Results: The RCRA Facility Stabilization Effort'' and in

Section III.C.3 of today's Notice.

2. Environmental Indicators for Corrective Action

Critics of the corrective action program have often charged that

EPA focuses too much on administrative processes rather than actual

cleanups. As an example of this problem, critics cite Agency management

systems which often track the number of paperwork deliverables (e.g.,

work plans approved) rather than achievement of environmental results.

In response to these concerns and the Government Performance and

Results Act of 1993, EPA is moving the corrective action program away

from more traditional management systems and, consistent with a broader

Agency-wide effort, now focuses management of the corrective action

program on environmental indicators. Two specific environmental

indicators have been developed for the corrective action program. These

indicators are: Human Exposures Controlled Determination and

Groundwater Releases Controlled Determination. The environmental

indicators are facility-wide measures. Human Exposures Controlled is

attained when there are no unacceptable risks to humans due to releases

of contaminants at or from the facility subject to RCRA corrective

action. Groundwater Releases Controlled is attained when the migration

of groundwater contamination at or from the facility across designated

boundaries (these boundaries may be facility boundaries or specified

boundaries within a facility) is controlled.

The environmental indicators are not tied to specific program

activities or paperwork deliverables. In the course of implementing

final remedies, the environmental indicators will be achieved; however,

the implementation of stabilization measures can also result in

achieving the environmental indicators. EPA is striving to make the

corrective action program more performance based. Because the

environmental indicators focus on results, they can serve well as

performance measures for remedial activities. Further guidance on the

environmental indicators is available in the July 29, 1994 memorandum

``RCRIS Corrective Action Environmental Indicator Event Codes CA725 and

CA750,'' which has been placed in the docket for today's Notice.

[[Page 19437]]

EPA is committed to using the corrective action environmental

indicators to increase the efficiency of the corrective action program

by focusing on results. Although EPA has developed only two

environmental indicators for corrective action to date, additional

indicators may be developed to address factors such as ecological risk

or source control. EPA requests comments on the development of

additional environmental indicators in Section V.C.1 of today's Notice.

3. Corrective Action Plan

Another concern in the corrective action program has been

consistency. While no two cleanups will follow the exact same course,

EPA recognizes that some level of consistency in cleanup processes can

help to ensure that all cleanups will achieve the same overall level of

protection. The RCRA Corrective Action Plan or CAP (OSWER Directive

9902.3-2A, May 1994), provides guidance which program implementors and

facility owners/operators can use to develop and direct the specific

corrective action activities which might be necessary at any given

facility. The CAP provides an overall program implementation framework

and model scopes of work for site characterizations, interim actions,

evaluation of remedial alternatives and remedy implementation. Program

implementors and facility owners/operators can use these model scopes

of work when developing site-specific strategies, work plans, and

schedules of compliance.

The CAP is not meant to be a cleanup prescription. The model scopes

of work in the CAP present a range of activities which might be

necessary at a corrective action facility. Program implementors and

facility owners/operators should choose carefully from this range when

developing facility specific work plans.

4. CAMU Rule

Program implementors and facility owners/operators have long

recognized that certain RCRA Subtitle C hazardous waste requirements

can significantly complicate or delay cleanups when applied to

remediation wastes. To address this problem, EPA promulgated

regulations for corrective action management units (58 FR 8658,

February 16, 1993). The CAMU rule provides relief from specific RCRA

standards that can preclude desirable remediation options or

unnecessarily add to the cost of remedies (e.g., the RCRA land disposal

restrictions when applied to remediation waste) by creating a new type

of RCRA unit. EPA and authorized states may choose to designate a CAMU

for management of remediation waste during RCRA corrective actions and

other cleanups. When designating CAMUs, EPA and authorized states have

the flexibility to establish site-specific design, operating, closure

and post-closure requirements instead of using the existing RCRA

requirements for land-based units. Remediation wastes (i.e., media and

debris which contain hazardous waste or exhibit a hazardous waste

characteristic) may be consolidated into a CAMU before or after

treatment. In addition, remediation wastes may be treated in a CAMU or

moved (again, before or after treatment) between CAMUs at the same

facility without automatically triggering otherwise applicable RCRA

land disposal restrictions or minimum technology requirements.

The CAMU rule was challenged in 1993; however, the challenge has

been stayed pending publication of the final Hazardous Waste

Identification Rule for Contaminated Media (HWIR-Media). EPA expects

that the HWIR-Media rule will largely obviate the need for the CAMU

rule, and is planning to propose withdrawal of the CAMU regulations as

part of the HWIR-Media proposal (for a discussion of the HWIR-Media

proposal, see Section II.F.1 of today's Notice). In the meantime, CAMUs

may be used to support efficient and protective cleanups.

5. Other Developments

In addition to the examples discussed above, program implementors

and facility owners/operators are using the existing flexibility in the

corrective action program to explore a range of new approaches in an

effort to improve the corrective action process and expedite cleanups

at a facility-specific level. These include: using performance

standards to set goals for site investigations and cleanups;

encouraging innovative technical approaches; facilitating voluntary or

accelerated cleanups, when a facility owner/operator wants to move

ahead of a regulatory agency; the use of third-party oversight;

expanded public participation, including use of citizen advisory

boards; innovative coordination with or deferral to other programs,

including state cleanup programs; and, many other efforts. In

accordance with EPA's emphasis on consistency of results between the

RCRA and CERCLA programs, many of these approaches are being developed

in cooperation with the Superfund program or state remedial programs.

EPA encourages program implementors and facility owners/operators

to continue to explore new approaches to corrective action and to share

their successes and failures. Some of the innovative approaches which

have proved most successful at individual facilities are discussed

later in today's Notice; EPA is looking forward to receiving

information on other new approaches in response to today's Notice. One

of the purposes of today's Notice is to gather information on

successful facility-specific approaches to corrective action so EPA can

build on implementation experience as it identifies and develops

improvements to the national program during the Subpart S Initiative.

F. Relationship to Other Agency Initiatives and Rulemakings

EPA is involved in several rulemakings and other activities which

will have particular impact on the Subpart S Initiative. Coordination

with these other rulemakings and activities is ongoing.

1. HWIR Media

The Hazardous Waste Identification Rule for Contaminated Media

(HWIR-Media) is a regulatory reform proposal that reexamines the

application of many of the RCRA hazardous waste treatment and

management standards to contaminated environmental media (e.g., soil

and groundwater) managed during Agency or authorized state overseen

cleanups. Under current regulations, environmental media that contain

(or are contaminated by) hazardous wastes must be managed as hazardous

waste (this is known as the ``contained-in policy''). In developing the

HWIR-Media proposal, EPA, in partnership with the states, is examining

a number of reforms designed to allow program implementors to tailor

treatment and management requirements for contaminated media to site-

and media-specific conditions. EPA is proposing several types of

reforms and seeking comment on a number of alternatives. The Agency may

finalize any one or combinations of these reforms or alternatives.

The first major area of reform that EPA is considering would revise

the Land Disposal Restrictions (LDRs) Minimum Technological

Requirements (MTRs) and permitting requirements that apply to

contaminated media currently subject to hazardous waste management

requirements, to make them more appropriate for the types of

contaminated media and concerns typically addressed at cleanup sites.

Currently, large volumes of contaminated media are subject to

[[Page 19438]]

hazardous waste requirements, notably LDR, MTR and permitting, that

were originally designed for newly generated or process wastes, where

the concerns are different from those at cleanup sites.

More broadly, EPA is also proposing to exempt some contaminated

media from RCRA Subtitle C hazardous waste management requirements.

This reform would allow authorized states or EPA to determine

contaminated media management standards for those exempted media on a

site-specific basis. EPA is considering two exemption options. First,

EPA is considering exempting media by determining, often based on

management conditions, that the media do not contain hazardous wastes

(this is commonly known as the ``contained-out'' approach); second, EPA

is considering exempting media only if certain conditions were met

(this is commonly known as the ``conditional exclusion'' approach).

Under the options that would exempt only some contaminated media from

hazardous waste management requirements, EPA is proposing to use a set

of constituent concentrations known as a ``Bright Line'' to divide the

media that would and would not be eligible for exemption. Media with

concentrations of constituents below Bright Line concentrations would

be eligible for exemption; media with constituent concentrations above

the Bright Line would not be eligible. Finally, in the HWIR-Media

proposal, EPA is requesting comment on exempting all cleanup wastes,

including contaminated media, sludges, debris, and other wastes managed

during the course of a cleanup, based on a conditional exclusion. Under

this option, authorized states or EPA would set all management and

treatment requirements for cleanup wastes on a site-specific basis.

The HWIR-Media proposal in particular will complement the Subpart S

Initiative by potentially providing program implementors with the

flexibility to tailor requirements for management of contaminated media

to the risks posed by any given medium and the circumstances at any

given corrective action facility.

2. Post-Closure Rule

EPA has long recognized the need to more effectively integrate

corrective action and closure activities. Toward this end, the Agency

proposed a rule entitled ``Standards Applicable to Owners and Operators

of Closed and Closing Hazardous Waste Management Facilities; Post-

Closure Permit Requirement; Closure Process; State Corrective Action

Enforcement Authority'' (59 FR 55778, November 8, 1994). In this

notice, the Agency proposed revisions to the current requirements

applicable to facilities with closed and closing land disposal units,

and revisions to the requirements for state authorization for

corrective action. These provisions, described in more detail below,

were proposed as part of the Agency's efforts to create a consistent

approach to cleanups at RCRA facilities.

a. The Post-Closure Permit Requirement. The current regulations at

40 CFR Part 270.1(c) require owners and operators of surface

impoundments, landfills, land treatment units, and waste pile units

that received wastes after July 26, 1982, or that certified closure

after January 26, 1983 to obtain a post-closure permit for the

facility, unless they demonstrate closure by removal at those units.

For facilities that did not receive an operating permit, and closed

under interim status standards, this post-closure permit serves to

impose several critical statutory and regulatory requirements,

including the requirements for corrective action.

The November 8, 1994 proposal would allow a regulatory agency

(e.g., EPA or an authorized state) to address these facilities using

the best available regulatory or enforcement authority, instead of

requiring that agencies issue post-closure permits in all cases. While

the proposal would not otherwise modify the applicable cleanup

requirements at these facilities, it would remove the requirement that

they be imposed through the post-closure permitting process. Under the

proposal, a regulatory agency could require post-closure care

(including corrective action) at the facility under an enforcement

mechanism, a state cleanup authority, or Federal Superfund authority.

This flexibility contributes to the Agency's efforts in the Subpart S

Initiative.

b. Applicability of 40 CFR Parts 264 and 265 to Regulated Units

Requiring Corrective Action. Under the current regulations, the

requirements that apply to closed and closing land disposal units

depend on their legal status. Regulated units, defined in 40 CFR 264.90

as surface impoundments, waste piles, land treatment units, or

landfills that received waste after July 26, 1982, are subject to the

fairly specific closure, post-closure, financial assurance, groundwater

monitoring and corrective action requirements of 40 CFR Parts 264 and

265. Non-regulated solid waste management units are not subject to 40

CFR Parts 264 and 265; consequently, environmental risks at those units

are determined and addressed on a site-specific basis through the

corrective action process.

Despite this regulatory distinction, these units are often

indistinguishable in terms of environmental risk. EPA is concerned that

this dual regulatory scheme can, in some cases, limit its authority to

determine the best remedy at regulated units. In the November 8, 1994

proposal, the Agency expressed this concern, and solicited comment on

whether the regulations should be modified to give overseeing agencies

the discretion to remove or modify all or part of the Part 264 and 265

requirements described above at a facility that is undergoing cleanup

using the RCRA corrective action process.

c. State Corrective Action Enforcement Authority. Under the current

Federal authorization process, states are required to obtain

authorization for implementing provisions of HSWA, such as Section

3004(u), to address corrective action at permitted facilities. However,

states have never been required to obtain authority to address

corrective action at interim status facilities. On November 8, 1994,

EPA proposed that states be required to upgrade their judicial or

administrative enforcement authority to respond to releases of

hazardous waste or hazardous constituents at interim status facilities

as provided by Section 3008(h). This provision was designed to provide

consistent and complete delegation of the corrective action program to

states.

EPA is completing its review of comments on the proposed provisions

and plans to proceed with promulgation of the final rule in the near

future.

3. RCRA Statutory Reform

On March 16, 1995 the President committed to identify high cost,

low benefit provisions of the Resource Conservation and Recovery Act

(RCRA) for legislative reform. After an extensive stakeholder outreach

process, the Administration selected two issues. The first issue for

legislative reform, an exemption for certain low risk wastes from

costly regulation under RCRA's land disposal restrictions program, was

signed into law--the Land Disposal Flexibility Act--by the President on

March 26, 1996.

The second topic identified for legislative reform was the

application of RCRA hazardous waste management requirements to cleanup

wastes. The Administration currently is discussing with stakeholders

and Congress the possible development of bipartisan legislation to

expedite the safe and cost-effective management of cleanup wastes that

are currently subject to RCRA

[[Page 19439]]

hazardous waste management requirements. In addition to RCRA cleanup

sites, the type of reform being discussed would benefit site cleanups

under Superfund, Brownfield and State voluntary programs.

4. Improvements to the Procedures for Authorization of State Hazardous

Waste Program Revisions

Under RCRA Section 3007, EPA is charged with authorizing

equivalent state hazardous waste programs including corrective action

programs. Authorized states administer and enforce the RCRA program

within the state in lieu of the Federal program (see 40 CFR Part 271);

authorized states have primary enforcement responsibility, although EPA

retains enforcement authority under RCRA sections 3008, 7003, and 3013.

Following their initial authorization, states are required to

periodically revise their hazardous waste programs to remain equivalent

to the Federal program. Since EPA is continually revising the RCRA

program in response to statutory changes, court ordered deadlines and

evolving priorities, states are continually updating their authorized

programs. Preparation, review and approval of changes to authorized

state hazardous waste programs represents a significant workload for

states and EPA. In addition, states have often expressed the concern

that EPA review of changes to authorized hazardous waste programs is

too detailed, resource intensive, and time consuming. To increase the

pace and efficiency of authorization of state program revisions and

respond to state concerns, EPA proposed changes to the regulations for

processing state program revision applications in the Land Disposal

Restrictions Phase IV rule (60 FR 43654, August 22, 1995). Additional

provisions to streamline authorization of state program revisions are

under consideration for inclusion in the HWIR-Media rule, currently

under development. Improvements proposed in the LDR Phase IV rule and

under consideration for the HWIR-Media rule include: creating a tiered

approach to tailor authorization to the complexity and impact of the

program revisions at issue; increasing reliance on state

certifications; and placing more emphasis on time-frames for processing

of authorization applications. Improvements to the procedures for state

program revisions would apply to all state program revisions, including

revisions made necessary by promulgation of corrective action

regulations.

5. Superfund Reauthorization

As a general philosophy, EPA believes that the RCRA and CERCLA

remedial programs should operate consistently and result in similar

environmental solutions when faced with similar circumstances.

Currently, Congress is considering legislation to reauthorize CERCLA.

If CERCLA is amended, EPA believes that parallel changes in the

corrective action program should generally be adopted. Changes to the

CERCLA program which might impact the RCRA corrective action program

include new approaches to setting cleanup standards and factoring risk

into remedial decision making.

6. Superfund Administrative Improvements and Reforms

Independent of reauthorization of the CERCLA statute, EPA's

Superfund program has undertaken a number of administrative initiatives

to streamline the Superfund program and increase the fairness,

effectiveness, and efficiency of CERCLA cleanups. Several of the

proposals developed as part of the administrative reform and

improvement efforts also apply to RCRA cleanups, as discussed below.

a. Guidance on Land Use. On May 25, 1995, EPA issued a Directive

titled, ``Land Use in the CERCLA Remedy Selection Process.'' The

directive has two primary objectives. First, to promote early

discussions between EPA and local land use planning authorities, local

officials, and the public regarding reasonably anticipated future land

uses. Second, to promote the use of the information from those

discussions to formulate realistic assumptions regarding future land

use, and to clarify how land use assumptions influence risk assessment,

development of remedial alternatives, and remedy selection.

The directive was developed primarily to address land use

considerations under the CERCLA program; however, the principle of

early and complete involvement of stakeholder groups to develop

realistic land use assumptions is equally applicable to the RCRA

corrective action program. EPA recognizes that RCRA facilities are

often industrial properties that are actively managed, rather than the

abandoned sites typically addressed under CERCLA. Because of this

consideration, the directive stated that non-residential use

considerations might be especially appropriate at many RCRA corrective

action facilities. Consideration of non-residential land use in RCRA

corrective actions was addressed in the 1990 proposal and is discussed

further in Sections III.C.5.j and V.E.1 of today's Notice.

b. Soil Screening Guidance. In December 1994, EPA issued a draft

``Superfund Soil Screening Guidance,'' (SSG) for public review and

comment. The SSG was developed to accelerate decision making at CERCLA

and other cleanup sites by focusing investigations on exposure pathways

and contaminated areas of concern and eliminating certain pathways,

areas, and contaminants not of concern from more detailed assessments.

The SSG provides a framework for developing site-specific screening

levels for residential-based exposure scenarios.

Specific soil screening levels (SSLs), derived in accordance with

the SSG, are defined as contaminant concentrations in soil below which

no further action or study would generally be warranted under CERCLA.

They are not intended to be cleanup levels. According to the SSG, where

soil contaminant concentrations equal or exceed SSLs, further

assessment, but not necessarily a cleanup, would likely be warranted.

EPA is evaluating comments on the draft guidance and intends to

issue final soil screening guidance in the near future. The Agency

anticipates that the SSG may also be used to develop action levels for

certain RCRA corrective action facilities. For more information on the

role of action levels during corrective actions, see Section III.C.2.e

of today's Notice.

c. Presumptive Remedies. The Superfund program began developing

presumptive remedy guidance in 1991, to use past experience to

streamline cleanups. Presumptive remedies are preferred technologies

for common categories of sites, based on historical patterns of remedy

selection and EPA's scientific and engineering evaluation of

performance data on technology implementation. The Agency expects that

presumptive remedies will be used at all appropriate sites, including

RCRA facilities, to help ensure consistency in remedy selection and

implementation and to reduce the cost and time required to investigate

and remediate similar types of sites. Several presumptive remedy

guidance documents are available and have been placed in the docket for

today's Notice, including: Presumptive Remedies: Policies and

Procedures; Presumptive Remedy for CERCLA Municipal Landfill Sites;

Presumptive Remedies: Site Characterization and Technology Selection

for CERCLA Sites with Volatile Organic Compounds in Soils; and,

Presumptive Remedies for Soils, Sediments and Sludges at Wood Treating

Sites. Future presumptive

[[Page 19440]]

remedy guidance documents may address sites with groundwater

contamination, sites contaminated with polychlorinated biphenyl

compounds (PCBs), and manufactured gas sites.

d. Community Based Remedy Selection. In an effort to increase

community involvement, EPA plans to pilot a new community-based

Superfund remedy selection process. Under this process, EPA will assist

community groups, local governments and other stakeholders in

developing consensus and becoming more directly involved in remedy

selection at select Superfund sites.

During the first half of fiscal year 1996, EPA will develop

guidelines and options for community-based remedy selection pilot

programs at specific sites. These pilot programs will empower affected

parties to play a direct role in finding a protective, cost-effective

remedy for a Superfund site in their community, inform affected parties

of the applicable statutory and regulatory requirements, and improve

community understanding and acceptance of Superfund remedies. EPA will

use the results of the Superfund community-based remedy selection pilot

programs as it works to improve public participation at RCRA corrective

action facilities.

7. Brownfields Initiative

EPA developed the Brownfields Economic Redevelopment Initiative to

help communities revitalize abandoned, idled, or under-used industrial

and commercial sites where expansion or redevelopment is complicated by

environmental contamination. Through the Brownfields Action Agenda, the

Agency committed to fund up to 50 Brownfield Pilot Programs to explore

brownfield characterization and redevelopment strategies at the local

level. The brownfields pilots will test redevelopment models, direct

special efforts toward removing regulatory barriers without sacrificing

protectiveness, and facilitate coordinated environmental cleanup

efforts at the Federal, state and local levels. The Pilots are intended

to provide EPA, states, tribes, municipalities, and communities with

useful information and strategies as they continue to seek new methods

to promote a unified approach to site assessment, environmental

cleanup, and redevelopment. To date, EPA has awarded 40 pilots.

EPA anticipates that many approaches to cleanup and site

redevelopment evolving from the Brownfields Initiative will have direct

application to the corrective action program and the Subpart S

Initiative.

8. Environmental Justice

Executive Order 12898, ``Federal Action to Address Environmental

Justice in Minority Populations and Low-Income Populations,'' directs

each Federal Agency to ``. . . make achieving environmental justice

part of its mission by identifying and addressing, as appropriate,

disproportionately high and adverse human health and environmental

effects of its programs, policies and activities on minority

populations and low income populations.'' In response to the Executive

Order and to concerns voiced by many groups outside the Agency, EPA

issued a Directive on September 21, 1994 which required that

environmental justice issues be considered at all stages of policy,

guidance and regulation development.

EPA has identified four main areas of environmental justice

concerns within the Subpart S Initiative: (1) outreach to stakeholders,

including members of affected communities, during the rulemaking

process; (2) public participation on a site-specific level during the

corrective action process; (3) public participation in future land-use

and associated remedial decisions; and (4) ensuring the continued

effectiveness of any institutional controls. The Agency recognizes that

discussions of streamlining, such as those in today's Notice, often

raise concerns in environmental justice communities. The Agency remains

committed to identifying and addressing environmental justice concerns

and to expanding public participation in the corrective action process,

and would welcome the involvement of the environment justice community

in development of the Subpart S Initiative.

9. Permits Improvement Team

In July 1994, EPA organized a group of state, tribal and local

government officials to examine and propose improvements to EPA's

permit programs. This group is known as the Permits Improvement Team.

The Permits Improvement Team is examining ways to streamline the

permitting process, exploring alternatives to individual permits, and

evaluating ways to enhance public participation in permitting. For RCRA

corrective action, the emphasis is on addressing RCRA and non-RCRA

facilities in order of environmental priority, rather than having a

state's priorities skewed by the RCRA permit process. For example, the

RCRA permit could include a general provision to require compliance

with the state's existing environmental cleanup program. Any changes to

the RCRA permitting program that result from the Permits Improvement

Team's efforts will be considered as EPA implements the Subpart S

Initiative.

III. Corrective Action Implementation

As discussed in Section II of today's Notice, EPA generally uses

the 1990 corrective action proposal, supplemented by later guidance, as

a guideline for corrective action implementation. The 1990 proposal was

intended to support a flexible approach to corrective action.

Unfortunately, EPA believes the proposal has at times been interpreted

too narrowly, and much of the intended flexibility has been under used.

In addition, the nature of the corrective action program and some of

EPA's positions have evolved since 1990.

For the benefit of those involved with the corrective action

program, and to provide context for the requests for comment in Section

V of today's Notice, this section provides a general status report on

the corrective action program, and how it has evolved since the 1990

proposal and includes guidance on a number of topics not fully

addressed in 1990. It also emphasizes the flexibility inherent in the

current corrective action program and encourages program implementors

and facility owners/operators to take advantage of this flexibility to

improve the corrective action process and expedite cleanups.

A. Program Management Philosophy

More than 5,000 facilities are subject to RCRA corrective action,

over three times the number of sites on CERCLA's National Priorities

List (NPL). The degree of investigation and subsequent corrective

action necessary to protect human health and the environment varies

significantly across these facilities. Some facilities may require no

cleanup at all or only minor corrective action, while others are as

complex and highly contaminated as any Superfund site. To account for

the variety of corrective action facilities and site-specific

circumstances, EPA has emphasized a flexible, facility-specific

approach to corrective action. Few cleanups will follow exactly the

same course; therefore, program implementors and facility owners/

operators must be allowed significant latitude to structure the

corrective action process, develop cleanup objectives, and select

remedies appropriate to facility-specific circumstances. At the same

time, a number of basic operating principles

[[Page 19441]]

guide corrective action program implementation and development.

(1) Corrective Action Decisions Should Be Based on Risk

As in most EPA programs, the Agency's fundamental goal in the

corrective action program is to control or eliminate risks to human

health and the environment. Risk-based decision making is especially

important in the corrective action program, where it should be used to

ensure that corrective action activities are fully protective given

reasonable exposure assumptions and consistent with the degree of

threat to human health and the environment at a given facility.

(2) Program Implementation Should Focus on Results

The purpose of the corrective action program is to stabilize

releases and clean up RCRA facilities in a timely manner, not to ensure

compliance with or fulfillment of a standardized process. Program

implementors and facility owners/operators should focus on

environmental results rather than process steps and ensure that each

corrective action related activity at any given facility directly

supports cleanup goals at that site. In focusing on results, program

implementors are encouraged to use innovative approaches to management

and oversight.

(3) Interim Actions and Stabilization Should Be Used To Reduce Risks

and Prevent Exposures

A primary implementation strategy of the corrective action program

is to focus resources first on stabilizing continuing releases and

controlling exposure at facilities undergoing corrective action. Once a

facility is stabilized, Agency oversight at that facility can be

reduced and resources shifted to other facilities of concern. By

focusing on stabilizing many facilities, rather than pursuing a final

cleanup at a few facilities, EPA can achieve a greater overall level of

human health and environmental protection in the near-term.

(4) Activities at Corrective Action Facilities Should Be Phased

Significant efficiencies can be gained by phasing corrective action

at individual facilities to focus on areas of the facility that

represent the greatest risk to human health and/or the environment.

Phasing allows information obtained from previous phases to be used for

planning and refining subsequent investigations or responses. Using a

phased approach, response actions can be taken at some high-priority

areas of the facility while other lower-priority areas are addressed at

a later time.

(5) Program Implementation Should Provide for Meaningful Inclusion of

All Stakeholders

EPA is committed to including all stakeholders in the corrective

action process. Stakeholders are included in both facility-specific

decision making through public participation activities and in the

development of the national corrective action program. The Agency

believes stakeholder involvement is essential in all corrective action

cleanups, regardless of the oversight mechanism used (e.g., order,

permit, state authority, voluntary action).

(6) Corrective Action Obligations Should Be Addressed Using the Most

Appropriate Tool for Any Given Facility

EPA recognizes that there are many mechanisms or tools which can be

used to ensure appropriate corrective action at any given facility,

including RCRA orders or permits, state cleanup orders, and voluntary

cleanup programs. Each mechanism has advantages and disadvantages when

applied to individual facilities. Program implementors and facility

owners/operators should carefully consider these advantages and

disadvantages when choosing a corrective action mechanism.

(7) States Will Be the Primary Implementors of the Corrective Action

Program

Since corrective action requirements will be, predominantly,

implemented by states, EPA is committed to full and meaningful state

involvement in development of corrective action implementation

strategies, policy, guidance and regulations.

B. Scope and Definitions

Corrective action requirements apply at hazardous waste treatment,

storage and disposal facilities (TSDFs). These include permitted

facilities and facilities that have, have had, or should have had RCRA

interim status. This collection of facilities is typically referred to

as the ``corrective action universe.'' Corrective action may be

required for releases of hazardous waste or hazardous constituents from

these facilities, as necessary to protect human health and the

environment. EPA does not generally require corrective action at

facilities which are issued land treatment demonstration permits,

emergency permits, permits-by-rule for ocean disposal, or research,

development and demonstrations permits unless these facilities

otherwise become subject to RCRA operating or post-closure permitting

requirements.

The 1990 proposal established EPA's views on the scope and

applicability of RCRA corrective action authorities. Although EPA's

views have largely remained unchanged in this area, there have been

several important refinements or developments, as discussed below.

1. Concept of Parity

Most facilities in the RCRA corrective action universe are

potentially subject to cleanup under numerous cleanup authorities,

including state or Federal Superfund authorities. The potential for

overlapping application of these authorities can cause confusion and

concern in the regulated community and among state and Federal

regulators. In the 1990 proposal, EPA stated that one of the Agency's

primary objectives was ``to achieve substantial consistency with the

policies and procedures'' of the Superfund remedial program. The logic

behind this concept is that, since both programs address cleanup of

potential and actual releases, both programs should arrive at similar

remedial solutions. EPA's position is that any procedural differences

between RCRA and CERCLA should not substantively affect the outcome of

remediation.

Generally, cleanup of any given site or area at a facility under

RCRA corrective action or CERCLA will substantively satisfy the

requirements of both programs. We believe that, as a general matter,

RCRA and CERCLA program implementors can defer cleanup activities from

part or all of a site to one program with the expectation that no

further cleanup will be required under the other program. For example,

when investigations or studies have been completed under one program,

there should be no need to review or repeat those investigations or

studies under another program. Similarly, a remedy that is acceptable

to one program can be presumed to meet the standards of the

other.3 The same principle should apply to authorized state

corrective action programs and state CERCLA analogous programs. Over

half the states have Superfund-like authorities. In some cases, these

authorities may be substantively equivalent in scope and effect to the

Federal CERCLA program, and therefore are likely to be substantially

equivalent to the RCRA corrective action program.

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\3\ In some cases specific releases or constituents are not

``solid wastes'' under RCRA. For example, RCRA excludes from the

definition of solid waste certain source, special nuclear, or

byproduct material as defined by the Atomic Energy Act 42 U.S.C.

Sec. 2011.

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[[Page 19442]]

EPA emphasized the concept of parity in a recently issued policy

for deleting RCRA facilities from the NPL and deferring their cleanup

to the RCRA corrective action program (60 FR 14641), available in the

docket for today's Notice.4 EPA is planning to issue additional

guidance on RCRA and CERCLA parity in an upcoming policy memo,

``Coordination of RCRA/CERCLA Activities'' and through the inter-agency

and state ``Lead Regulator Workgroup.''

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\4\ The RCRA deletion policy does not pertain to Federal

Facilities, even if such facilities are also subject to RCRA

Corrective Action; however, program implementors and facility

owners/operators are encouraged to use interagency agreements to

eliminate duplication of effort, including oversight, at Federal

facilities.

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2. Voluntary Cleanup

EPA strongly encourages voluntary corrective actions. As discussed

in the 1990 proposal, voluntary cleanups have a number of advantages,

including timeliness, flexibility, and efficient use of facility owner/

operator and Agency resources. Unfortunately, representatives of the

regulated community have, on occasion, complained that procedural

barriers have delayed cleanups they were willing to undertake

voluntarily. Over the last few years, EPA and the states have taken

significant steps to address this concern and to further encourage and

facilitate voluntary actions. For example, EPA is planning to issue

guidance on the use of state voluntary cleanup programs to address

contamination at sites that may be subject to cleanup under the

Comprehensive Environmental Response, Compensation, and Liability Act

including hazardous waste generators, unregulated by RCRA corrective

action requirements. The Guidance for Development of Memoranda of

Agreement (MOA) Language Concerning State Voluntary Cleanup Programs is

being developed in partnership with interested states and will outline

general principles which EPA will use when deciding whether to endorse

a state voluntary cleanup program and to assure private parties that

subsequent Federal action under CERCLA will not be taken except under

limited circumstances.

The same general principles established in the CERCLA MOA guidance

may apply to the use of state voluntary cleanup programs at facilities

subject to RCRA corrective action; however, because of distinctions in

statutory requirements, consideration of additional factors may be

required of those programs. Issues associated with voluntary cleanups

at facilities subject to RCRA corrective action, including the use of

state voluntary cleanup programs, are discussed in Section V.D.3 of

today's Notice.

3. Definitions

The 1990 proposal included definitions for a number of terms which

help to further define the applicability of RCRA corrective action.

Pending final action on the proposal, EPA has generally continued to

interpret these terms consistently with the proposal; however, as EPA

has gained experience with applications in particular cases, it has

refined its interpretations in some respects. The following discussion

highlights the way in which these issues have been addressed in some

specific situations (e.g., cases decided by the EPA Environmental

Appeals Board (EAB)).

a. Facility. Under RCRA Sec. 3004(u), corrective action is required

for releases form solid waste management units at facilities seeking

RCRA permits. The 1990 proposal defined ``facility'' as ``all

contiguous property under the control of the owner or operator seeking

a permit under Subtitle C of RCRA.'' This definition was finalized when

the rule on corrective action management units (CAMUs) was promulgated

(58 FR 8658, February 16, 1993) and is now codified at 40 CFR 260.10.

For reasons discussed in the 1990 proposal, the term ``facility'' for

corrective action purposes is separate and substantively different from

the facility definition for other RCRA purposes.

A number of issues continue to arise regarding the application of

the facility definition. A common issue is whether or not a certain

parcel is considered ``contiguous'' for purposes of the corrective

action facility definition. One such situation is the case of two

parcels under common ownership but separated by a road or public right

of way. In the 1990 proposal, EPA indicated it would interpret such

parcels to constitute a single facility for purposes of corrective

action. This approach was recently accepted by the EAB, which held that

two parcels were a single facility where they were separated by a

privately owned railroad line (In re Exxon Co., USA, RCRA Appeal No.

94-8 (EAB May 17, 1995)).

Another common scenario involves two geographically separated

parcels under common ownership that are connected by ditches, bridges,

or other links under the control of the facility owner/operator. In the

Exxon permit appeal, the EAB noted the fact that the two parcels (which

it found to be ``contiguous'' in any case) were also connected by a

sewer system collecting waste water from different parts of the

facility. It pointed out that in an earlier case, evaporation ponds

three miles from a refinery were treated as part of the same facility

because they were linked to the refinery by a drainage ditch controlled

(although not owned) by the same party. (See, In re Navajo Refining

Co., RCRA Appeal No. 88-3 (Adm'r June 27, 1989)). In a separate final

RCRA section 3008(h) order, EPA has determined that two parcels on

opposite sides of a river, but connected by a trestle, constitute a

single facility for corrective action purposes. (See, In re Sharon

Steel Corp., Docket No. RCRA III-062-CA (Region III).)

The 1990 proposal requested comment on how the definition of

facility should apply where a large parcel is owned by one party who

leases a small portion to another party for a RCRA-permitted facility.

In the proposal, EPA indicated that it would consider corrective action

requirements to extend to SWMUs throughout the larger parcel. At the

same time, EPA recognizes that there are differing views as to the

policy merits of this interpretation and invites further comment in

section V.C.2 of today's Notice.

b. Release. The definition of release for corrective action was

first discussed in the 1985 HSWA codification rule (50 FR 28702, July

15, 1985). In the 1985 rule, EPA wrote that the definition of release

for corrective action should, at a minimum, be as broad as the

definition of release under CERCLA. Accordingly, EPA has interpreted

the term release to mean ``any spilling, leaking, pumping, pouring,

emitting, emptying, discharging, injecting, escaping, leaching, dumping

or disposing into the environment.'' (See, 50 FR 28713, July 15, 1985.)

In the 1990 proposal, EPA clarified that the definition of release also

includes abandoned or discarded barrels, containers, and other closed

receptacles containing hazardous wastes or constituents and that it

could include releases that are permitted under other authorities, such

as the Clean Water Act. EPA continues to adhere to these

interpretations of the term ``release.''

c. Solid Waste Management Unit. In 1990, EPA proposed to define the

term ``solid waste management unit'' or ``SWMU'' to mean, ``Any

discernible unit at which solid wastes have been placed at any time,

irrespective of whether the unit was intended for the management of

solid or hazardous waste. Such units include any area at a facility at

which solid wastes have been routinely and systematically released.''

Pending resolution of the 1990 proposal, EPA has used this definition

in

[[Page 19443]]

corrective action implementation. The inclusion of units not

specifically intended for the management of solid or hazardous waste is

supported by the legislative history of RCRA sections 3004 (u) and (v),

and this point has been applied in decisions by the EAB. (See, e.g., In

re General Motors Corp., RCRA Appeal No. 90-24 (EAB Nov. 6, 1992).)

As discussed in the 1990 proposal, not all areas where releases

have occurred are considered SWMUs. In the 1990 proposal, EPA indicated

a one-time spill which had been adequately cleaned up would not

constitute a SWMU; on the other hand, a location at which wastes or

other materials were released in a routine and systematic manner (such

as a loading area where minor spills or leaks occurred routinely over

time) would be a SWMU. The 1990 proposal indicated that industrial

sewers used for collecting wastes would constitute SWMUs. This

interpretation, which was based in part on earlier decisions in permit

appeals, has been affirmed by the EAB in In re Amoco Oil Co., RCRA

Appeal No. 92-21 (EAB Nov. 23, 1993).

The definition of a SWMU is often a point of disagreement when

corrective action permits or orders are issued. Facility owners/

operators and representatives of the regulated community often argue

that Congress intended the RCRA corrective action program to be focused

on waste management units (i.e., SWMU) and that non-waste-management

related releases (e.g., spills) should be addressed by other cleanup

programs or authorities. EPA notes that authority exists for requiring

corrective action for releases that are not attributable to SWMUs.

Given the legislative history of RCRA section 3004(u), which emphasizes

that RCRA facilities should be adequately cleaned up, in part, to

prevent creation of new Superfund sites, EPA believes that corrective

action authorities can be used to address all unacceptable risks to

human health or the environment from RCRA facilities. In the permitting

context, remediation of non-SWMU related releases may be required under

the ``omnibus'' authority (see 40 CFR 270.32(b)(2)) which allows EPA to

impose such permit conditions as are necessary to protect human health

and the environment. In other contexts, orders under RCRA sections

3008(h) or 7003 may require remedial action to address releases

regardless of whether a SWMU is present. Therefore, extended debate or

litigation over a particular SWMU designation will in many cases be

unproductive for all parties and, as a general principle, EPA

discourages debate on these issues, believing that discussions should

more properly focus on whether there has been a release that requires

remediation.

To reflect a more holistic approach, permits and orders often use

the term ``area of concern'' to refer to releases which warrant

investigation or remediation under the authorities discussed above,

regardless of whether they are associated with a specific SWMU as the

term is currently used. For example, when an overseeing agency believes

one-time spills of hazardous waste or hazardous constituents have not

been adequately cleaned up, these releases are often addressed as areas

of concern.

d. Hazardous Waste and Hazardous Constituent. RCRA section 3004(u)

requires corrective action for releases of ``hazardous wastes or

constituents.'' As discussed in the 1990 proposal, EPA interprets the

term ``hazardous waste,'' as used in RCRA section 3004(u) to include

all wastes that are hazardous within the statutory definition in RCRA

section 1004(5), not just those that are either listed or identified by

EPA pursuant to RCRA section 3001.

EPA also used the 1990 proposal to discuss use of the phrase ``or

constituents'' in RCRA section 3004(u). EPA views this phrase as

significant in two ways. First, it indicates that Congress was

particularly concerned that, within the broad category of wastes that

might be ``hazardous'' within the statutory definition, the corrective

action authority should be used to address the specific subset of

``hazardous constituents.'' Second, it indicates that the corrective

action authority was not intended to be limited to hazardous waste, and

extends to hazardous constituents regardless of whether they also fall

within the term ``hazardous waste,'' or whether they were derived from

hazardous waste. Under this interpretation, constituents that were

contained within nonhazardous solid wastes may be addressed through

corrective action.

C. Corrective Action Process

The corrective action process discussed in the 1990 proposal was

structured around five elements common to most cleanup activities:

initial site assessment, site characterization, interim actions,

evaluation of remedial alternatives, and implementation of the selected

remedy. These elements typically occur, to one degree or another,

during most cleanups. As discussed in the 1990 proposal, EPA emphasizes

that no one approach to implementing these cleanup elements is likely

to be appropriate for all corrective action facilities; therefore, a

successful corrective action program must be procedurally flexible. In

addition, these cleanup elements should not become ends in themselves;

EPA continues to encourage program implementors and facility owners/

operators to focus on the desired result of a cleanup rather than a

mechanistic cleanup process. These five elements should be viewed as

evaluations necessary to make good cleanup decisions, not prescribed

steps along a path.

1. Initial Site Assessment

The first element in most cleanup programs is an initial site

assessment. During the initial site assessment information is gathered

on site conditions, releases, potential releases, and exposure pathways

to determine whether a cleanup may be needed and to identify areas of

potential concern. Overseeing agencies may also use initial site

assessments to set relative priorities between sites and allocate

oversight and other resources.

In the CERCLA program, the initial site assessment is called a

Preliminary Assessment/Site Investigation, or PA/SI; in the corrective

action program, it is referred to as a RCRA Facility Assessment or RFA.

During an RFA, an overseeing agency typically compiles existing

information on environmental conditions at a given facility and, as

necessary, gathers additional facility-specific information on solid

waste management units and other areas of concern, releases, potential

releases, release pathways, and receptors. Information gathered during

an RFA usually forms the basis for initiating full scale site

characterization

a. Facility Owners/Operators May Gather RFA Information. At the

time to today's Notice, EPA and the states have completed 3,534 RFAs at

RCRA facilities. In the past, EPA has been reluctant to allow facility

owners/operators to conduct RFAs because of concern over the adequacy

of the facility submissions; however, by now the RFA is a well

developed process and EPA believes it may be more reasonable to accept

the work of facility owners/operators. Where RFAs have not yet been

completed, facility owners/operators may choose to conduct their own

site assessment and submit the report to EPA for review. If EPA

believes the site assessment is adequate, the site assessment may be

approved and adopted as the RFA for the facility. In the same way, when

an RFA was completed some years ago, a facility owner/operator might

conduct a site assessment to update the RFA and submit it to EPA for

review, approval

[[Page 19444]]

and adoption as an RFA update. Facility owners/operators who choose to

conduct or update their own RFAs should ensure that they address all

solid waste management units and other areas of concern at the

facility. Guidance on the scope of RFAs is available in ``RCRA Facility

Assessment (RFA) Guidance'' EPA/530/SW-86/053, PB87-107769, October

1986, which has been placed in the docket for today's Notice. Facility

owners/operators who want to obtain a copy of the RFA conducted for

their facility should contact the appropriate EPA Regional Office or

their authorized state.

b. Release Assessment. Release assessments (sometimes referred to

as Phase 1 assessments) are used to confirm or reduce uncertainty about

solid waste management units, areas of concern, and potential releases

identified during the initial site assessments. Under the corrective

action process as originally conceived, program implementors and

facility owners/operators would typically move directly from the

initial site assessment to full scale site characterization. As program

implementors and facility owners/operators have gained experience in

corrective action implementation, they have often found it advantageous

to conduct a limited release assessment after the RFA but before full

scale site characterization, to focus subsequent investigations or

eliminate certain units or areas from further consideration. Release

assessments can be especially helpful in cases where the RFA is old or

where the overseeing agency and the facility owner/operator disagree

about inclusion of one or more units, areas, or releases in the site

characterization.

Information collected during a release assessment can be used to

focus site characterizations on the areas and releases and exposure

pathways which constitute the greatest risks or potential risks to

human health and the environment and to eliminate areas from

consideration during site characterization. For example, an initial

site assessment could identify an old waste pile as a solid waste

management unit. The facility owner/operator might present information

showing that the waste in the pile had been removed; however, there may

be little or no information to confirm that releases from the unit (if

any) were adequately addressed during waste removal. The facility

owner/operator could, during a release assessment, conduct highly

focused sampling at the unit to confirm that releases either had not

occurred or were adequately remediated.

c. National Corrective Action Prioritization System. Implementing

agencies often use initial site assessments to set priorities for

limited oversight resources. In the corrective action program, EPA sets

priorities using the National Corrective Action Prioritization System

(NCAPS). NCAPS priorities are generally based on information gathered

during the RFA. Because of the number of facilities subject to

corrective action, the variety of facility-specific conditions, and the

limitations on Agency oversight resources, careful prioritization is

essential. The Agency's policy is to focus its corrective action

resources first on facilities and areas at facilities which present the

greatest relative risk to human health and the environment.

Accordingly, NCAPS considers the environmental setting of a facility

and potential receptors, actual and potential releases of hazardous

wastes or constituents from the facility, and the toxicity of

constituents of concern to group facilities into high, medium and low

priority groups.

NCAPS rankings are based on risk, but NCAPS does not involve a

traditional site-specific risk assessment. NCAPS is a resource

management tool that EPA and authorized states use to set relative

priorities among corrective action sites to focus limited agency

resources. Currently 40% of facilities subject to corrective action are

considered high priority, 30% medium, and 30% low.

2. Site Characterization

Before cleanup decisions can be made, some level of

characterization is necessary to ascertain the nature and extent of

contamination at a site and to gather information necessary to support

selection and implementation of appropriate remedies. In the CERCLA

program, this step is referred to as the Remedial Investigation or RI;

in the RCRA program, the RCRA Facility Investigation or RFI.

Carefully designed and implemented RFIs are critical to accurately

characterize the nature, extent, direction, rate, movement, and

concentration of releases at a given facility; this information is

needed to determine potential risks to human health and the environment

and support development and to implementation of corrective measures

should they prove necessary. It can also be used to eliminate

facilities which are shown not to present unacceptable risks from

further consideration. A successful RFI will identify the presence,

movement, fate, and risks associated with environmental contamination

at a site and will elucidate the chemical and physical properties of

the site likely to influence contamination migration and cleanup.

The 1990 proposal outlines the types of information which may be

required during a remedial investigation. As discussed in the 1990

proposal, program implementors and facility owners/operators should

gather the information necessary to support cleanup decisions;

collection of all the information discussed in the 1990 proposal will

not be necessary at most facilities.

Experience in corrective action implementation has demonstrated

that poorly focused investigations can become a drain on time and

resources and, in some cases, unnecessarily delay remedial actions. EPA

emphasizes that remedial investigations should be tailored to the

specific conditions and circumstances at the facility and focused on

the units, releases, and exposure pathways of concern. For example, in

delineating the extent of contamination it may not be necessary to

delineate to background concentrations in all cases. In some cases,

information adequate to support cleanup decisions can be obtained

through delineation to risk-based concentrations or other investigation

endpoints. For example, an investigation endpoint might be based on the

presence or absence of a competent confining layer rather than

constituent concentrations.

EPA has found a number of approaches to be particularly helpful in

developing focused site investigations, as discussed below.

a. Conceptual Site Models. Site investigations and remedy

implementation are often most successful when based on a ``conceptual

site model.'' A conceptual site model is a three-dimensional picture of

site conditions that conveys what is known or suspected about the

sources, releases and release mechanisms, contaminant fate and

transport, exposure pathways and potential receptors, and risks. The

conceptual site model is based on the information available at any

given time and will evolve as more information becomes available. The

conceptual site model may be used to present hypotheses that additional

investigations could confirm or refute, to support risk-based decision-

making, and to aid in identification and design of potential remedial

alternatives.

The conceptual site model is not a mathematical or computer model,

although these tools often prove helpful in visualizing current

information and predicting future conditions. The conceptual site model

can be

[[Page 19445]]

documented by written descriptions of site conditions and supported by

maps, cross sections, analytic data, diagrams of the site that

illustrate actual or potential receptors, and other descriptive tools.

The conceptual site model is dynamic and should be tested and

refined from the very first stages of corrective action to the point at

which the site has been remediated and no longer presents a threat to

human health or the environment. The RCRA Facility Assessment often

forms the basis for the first conceptual model of the site. At this

stage, the model should be used as a tool to compile available and

relevant information and to identify the urgency and scope of

subsequent investigations as well as interim actions. One use of the

conceptual site model could be to ensure that site conditions are

consistent with the underlying assumptions that were used to develop

standardized action levels (see Section III.C.2.e). The model can also

be used to support phasing of site investigations to ensure data

collection efforts address the most important information needs. In

addition, a conceptual site model can be a critical tool for evaluating

remedy performance.

More detailed guidance on the development and use of the conceptual

site model is available in ``Guidance for Evaluating the Technical

Impracticability of Ground Water Restoration'' (EPA/540-R-93-080).

Additional guidance on using conceptual models will be included in the

upcoming Soil Screening Guidance (see, Section II.F.6.b).

b. Innovative Site Characterization Technologies. In the 1990

proposal, EPA recommended a focused approach to site characterization

activities. EPA continues to support data collection approaches that

focus on information needed to support decisions. The Agency has seen

tremendous improvements in site characterization efficiency when

innovative approaches are used, especially those that rely on rapid

sample collection (e.g., direct-push technologies) and on-site

analytical techniques (e.g., sensor technologies, assay kits, field gas

chromatography/mass spectrometry (GC/MS), X-ray fluorescence).

Depending on the data quality objectives for a particular site,

confirmatory laboratory analyses may also be necessary. Data quality

objectives are discussed in Section III.C.2.c, below.

The benefits of using innovative site characterization technologies

are magnified when a work plan is used only to convey strategies,

methods, data quality objectives, and general areas subject to

investigation, and exact sample locations are left to be determined

based on iterative on-site data collection and analysis. Some of the

benefits of using innovative characterization techniques along with

iterative decision-making include: Rapid sample collection and analysis

allowing for on-site decision making and optimization of the

investigation effort; enhanced three-dimensional understanding of the

site because of the greater number of data points available for a given

commitment of resources; better identification of actual or potential

risks to human health and environmental receptors; and, more rapid

assessment of the need for interim actions.

Program implementors and facility owners/operators should take

advantage of innovative characterization technologies. Likewise, EPA

encourages implementing officials to be receptive to innovative

approaches which can significantly improve the quality as well as the

cost- and time-effectiveness of site characterization.

c. Tailored Data Quality Objectives. Program implementors and

facility owners/operators should tailor data gathering strategies to

the purpose for which the data will be used. The overall degree of data

quality or uncertainty that a decision maker is willing to accept is

referred to as the Data Quality Objective (DQO) for a decision. The DQO

is used to specify the quality of the data, usually in terms of

precision, bias, representativeness, comparability and completeness.

The DQO approach applies to the entire measurement system (e.g.,

sampling locations, methods of collection and handling, field analysis,

etc.), not just to laboratory analytical operations. In general, EPA

has found that DQOs can and should be used to ensure that environmental

data are scientifically valid, defensible, and of an appropriate level

of quality given the intended use for the data.

Program implementors and facility owners/operators using innovative

site characterization and assessment approaches should pay particular

attention to DQOs. For example, an objective of the early stages of an

investigation could be to identify the presence of gross contamination.

In this context, a DQO could include a higher method detection limit

(e.g., part per million) that could be obtained with cost-effective

field screening technologies. In contrast, a very low method detection

limit (part per billion or even trillion) could be an appropriate DQO

to determine if groundwater is fit for human consumption.

EPA encourages program implementors and facility owners/operators

to use the DQO approach to define adequate data collection for

corrective action decisions. EPA has found that site investigations can

be expedited considerably when DQOs are carefully established. For

additional information on incorporating DQOs in the decision-making

process at RCRA facilities, see Chapter One of SW-846 (Chapter One of

SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical

Methods, Third Edition as amended by Update I, July 1992); ``Final

Guidance for the Data Quality Objective Process'' EPA QA/G-4, September

1994; and, ``Quality Assurance Project Plans for RCRA Ground-Water

Monitoring and Corrective Action Activities'' EPA, Sylvia Lowrance and

H. Matthew Bills, July 1993, available in the docket for today's

Notice.

d. Use of Existing Information to Streamline the Remedial

Investigation. Many RCRA facility owners/operators have collected

information on physical characteristics or on the nature and extent of

contamination at the facility outside of the RCRA corrective action

process. Information on site conditions may have also been obtained by

entities other than the facility owner/operator. As a general

principle, information that is not time dependent should not be

collected again; EPA encourages the incorporation of pertinent existing

information into the corrective action process. For example, many

states have required facilities to conduct groundwater investigations

under state laws for units that are not regulated units under RCRA;

this information can often be easily incorporated into a corrective

action investigation. Similarly, information collected through a state

Superfund process is also generally of appropriate quality to be

directly useable to support corrective action decisions.

Information that is relevant to corrective action may exist in

reports or formats that are not traditionally used for RCRA corrective

action. For example, engineering boring logs may have been generated on

the facility by local utility companies, or by the facility itself

during building construction. Provided data and information are

submitted in a usable format, state or Federal agencies overseeing RCRA

corrective actions should not require adequate information to be

recollected or reformatted.

Facility owners/operators who are developing site characterization

or other information independently are urged to document the quality of

their information carefully. Thorough

[[Page 19446]]

documentation of data quality will increase its usefulness in the

corrective action process. Use of existing information can reduce costs

of conducting investigations and increase the speed of corrective

action cleanups.

To determine whether existing data is appropriate for corrective

action decisions, the nature and quality of the information should be

assessed in view of the goals of the corrective action investigation.

Where DQOs have been established, existing data can be assessed against

DQOs to determine their adequacy. For example, the DQO for a specific

corrective action decision could be a minimum analytical detection

limit that is considerably lower than that used in an existing study.

In this case, non-detects in the existing data could not be used to

justify no action; however, the existing data could be used to

determine ``hot-spots'' and to plan a second phase study using a more

sensitive analytical method. On the other hand, if the detection limits

were below an acceptable risk level and no constituents were detected,

re-sampling would not typically be required--even if more sensitive

methods were available.

EPA regions and states are currently incorporating existing

information into ongoing corrective actions. If the regulatory agencies

are aware of pertinent existing information at the time of issuance of

a permit or order, they have the option of explicitly referencing the

relevant information in the facility investigation requirements of the

permit or order or, if the data are of sufficient quality and quantity,

stating that the data fulfill site investigation needs. In some cases,

the facility owner/operator will inform the overseeing agency of

existing information; EPA or the states have the option of redirecting

any investigations based upon the relevance of this information.

e. Role of Action Levels. At certain facilities subject to

corrective action, contamination will be present at concentrations that

may not justify further action. For this reason, EPA has, in some

cases, used the concept of ``action levels'' as a trigger mechanism for

conducting additional corrective action activities (e.g., additional

investigations, evaluation of remedial alternatives, site-specific risk

assessments). Under this approach, contamination found in a particular

medium below an appropriate action level would not generally be subject

to remediation or further study.

Action levels are health- or environmental-based concentrations

derived using chemical-specific toxicity information and standardized

exposure assumptions. Action levels are often established at the more

protective end of the risk range (e.g., 10-6) using conservative

exposure and land use assumptions; however, action levels based on less

conservative assumptions could be appropriate based on site-specific

conditions. For example, if the current and reasonably anticipated

future uses of a site are industrial, an action level based on

industrial exposure scenarios could be appropriate.

Action levels can be developed on a facility-specific basis or can

be taken from standardized lists. Currently, some states and EPA

Regions have developed standardized lists of action levels or cleanup

levels (standardized cleanup levels can serve as action levels) for

RCRA corrective action facilities and other cleanup sites. One of the

earlier and more widely distributed lists of action levels was

developed by EPA and included in Appendix A of the preamble to the 1990

proposal. Since 1990, toxicity research has progressed; accordingly,

some of the action levels included in the 1990 proposal may no longer

be appropriate. In addition, the action levels in the 1990 proposal

were based on residential land-use assumptions which may not be

appropriate at all corrective action facilities. Program implementors

and facility owners/operators should ensure that action levels used at

RCRA corrective action facilities reflect up-to-date toxicity

information and that action level assumptions are consistent with the

physical conditions and current or reasonably anticipated exposure

assumptions at any given facility. For example, risk to ecologic

receptors is not accounted for in the action levels included in the

1990 proposal. If ecologic risks are a concern at a given corrective

action facility, program implementors and facility owners/operators

should consider developing facility-specific action levels to account

for ecologic risk issues.

EPA has found that action levels are most beneficial when they are

available during the planning stages of site investigations. In the

1990 proposal, the Agency indicated that it would be advantageous to

include action levels in corrective action permits to give facility

owners/operators and the public an indication of contaminant

concentrations that would likely trigger additional study or corrective

measures. At the same time, the Agency recognized that, in some cases,

including action levels in corrective action permits would not be

necessary (e.g., when available information establishes the need for an

analysis of remedial alternatives). Program implementors and facility

owners/operators have the flexibility to determine whether or not to

include action levels in corrective action permits and orders.

In Section V of today's Notice, EPA requests comments on the use of

action levels and the role of the Federal government in promoting

national consistency by developing, maintaining, and distributing

action levels (as well as media cleanup levels) or standardized

protocols for developing site-specific levels.

f. Integration With the Evaluation of Remedial Alternatives. At

most sites, likely remedial strategies will become clear during the

initial site assessment and subsequent site characterization. To

expedite the corrective action process, EPA encourages program

implementors and facility owners/operators to focus data gathering

during site characterization on information needed to support plausible

remedies. This strategy is discussed more fully in Section III.C.4.a of

today's Notice.

3. Interim Actions

Since the 1990 proposal, EPA has increasingly emphasized the

importance of interim actions and site stabilization in the corrective

action program. Many cleanup programs, including RCRA and CERCLA,

recognize the need for interim actions while site characterization is

underway or before a final remedy is selected. Typically, interim

actions are used to control or abate ongoing risks to human health or

the environment in advance of final remedy selection. For example,

actual or potential contamination of drinking water supplies might

necessitate an interim action to provide alternative drinking water

sources. Similarly, hazardous waste or constituents stored in poorly

maintained or damaged drums or tanks might require an interim action to

stabilize (e.g., by overpacking) or remove the damaged containers. The

concept of interim actions is especially appropriate to facilities

subject to RCRA corrective action, since many facilities in the

corrective action universe are operating industrial facilities, where a

final facility cleanup might not be completed for many years.

One of EPA's overriding goals in managing the corrective action

program is to expedite risk reduction by emphasizing early

implementation of interim actions to control or minimize ongoing

threats to human health or the environment. The importance of interim

actions at RCRA corrective action facilities is further emphasized in

the Agency's Stabilization Initiative

[[Page 19447]]

discussed in Section II.E.1 of today's Notice.

Interim actions at RCRA facilities can include a wide range of

activities such as source removal, installation of a pump and treat

system, and institutional controls. In accordance with the

Stabilization Initiative, interim actions should be employed as early

in the corrective action process as possible, consistent with the

environmental objective and priorities for the site; as further

information is collected, program implementors and facility owners/

operators should continue to look for opportunities to conduct

additional interim actions. Generally, interim actions should be

compatible with, or a component of, the final remedy.

4. Evaluation of Remedial Alternatives

Contamination at most cleanup sites can be addressed using a number

of remedial alternatives, each of which would present advantages and

disadvantages. Before choosing a cleanup approach, program implementors

and facility owners/operators will typically analyze a range of

alternatives and evaluate their advantages and disadvantages relative

to site-specific conditions. In the CERCLA program the identification

and evaluation of remedial alternatives is referred to as the

Feasibility Study or FS; in the RCRA corrective action program, the

Corrective Measures Study or CMS.

The purpose of a Corrective Measures Study is to identify and

evaluate potential remedial alternatives for facilities undergoing

corrective action. During the CMS, program implementors and facility

owners/operators typically evaluate one or more remedial alternatives

based on site-specific conditions and select a preferred remedial

alternative as the remedy. The CMS does not necessarily have to address

all potential remedies for every corrective action facility. EPA

advises program implementors and facility owners/operators to focus

corrective measures studies on realistic remedies and to tailor the

scope and substance of studies to the extent, nature and complexity of

releases and contamination at any given facility. For example, some

potential remedies should not be considered because they are simply

implausible. In cases where EPA has identified a presumptive remedy

(presumptive remedies are discussed in Section II.F.6.c of today's

Notice), the purpose of the CMS will be to confirm that the presumptive

remedy is appropriate to facility-specific conditions. In cases where

EPA or a state is using performance standards or a similar approach,

the Agency might not require submission or approval of a formal CMS at

all. EPA continues to emphasize that it does not want studies to be

undertaken simply for the purpose of completing a perceived step in a

perceived process. While, for a complex site, review of a full range of

remedial alternatives may be required, at many sites, the preferred

remedial approach will be apparent early in the cleanup process and the

analysis of remedial alternatives should be highly focused.

In implementing the corrective action program, EPA has found a

number of opportunities to significantly increase the efficiency of

corrective measures studies, as discussed below.

a. Integration With Site Characterization. EPA continues to

emphasize that the components of corrective action (e.g., release

assessment, RFI, CMS) should not be viewed as isolated steps in a

linear process. In the Agency's experience, it is generally more

efficient to focus data collection on information needed to support an

appropriate, implementable remedy than to attempt to complete separate

evaluations at each step. As remedial alternatives are considered

during a CMS, the facility owner/operator might find additional site

characterization necessary. Similarly, the earlier in the corrective

action process potential remedies can be identified, the more

effectively information gathering can be focused. For example, in a

situation where the contamination being addressed involves a large

mixed fill landfill, the remedial alternatives will likely involve

physical and institutional controls. These alternatives should be

identified early in the RFI enabling the facility owner/operator to

tailor the RFI toward collection of information necessary to support

development of appropriate physical controls. In other cases, a

facility may have relatively limited soil contamination or old solid

waste management units which the facility owner/operator desires to

remove all contaminated material for treatment and disposal off-site.

In these cases, the RFI might be focused on removal options and

analysis of other alternatives would not be necessary. Other benefits

associated with combination of the RFI and CMS can include cost savings

associated with consolidation of reports and other documents, and time

savings associated with concurrent rather than sequential analysis. The

1990 proposal and the 1990 RCRA Corrective Action Plan discuss other

situations where the CMS could be combined with site characterization,

including:

(1) ``Low risk'' facilities. These are facilities where

environmental problems are relatively small and where releases present

minimal exposure concerns. Such facilities might have limited on-site

soil contamination;

(2) Facilities where removal remedies have been proposed by the

owner/operator. For example, at a facility where there is contaminated

soil and the owner/operator proposes to excavate all the contaminated

soil for subsequent off-site recycling, treatment or disposal;

(3) Facilities with straightforward remedial solutions or where

presumptive remedies, as discussed in Section II.F.6.c of today's

Notice, can be applied. These are facilities where standard engineering

solutions, which have proven effective in similar situations, may be

appropriately applied;

(4) Facilities where few remedial options are available. This

includes situations where there are few practicable remedial solutions;

and,

(5) Facilities where the remedy is phased.

b. Formal Evaluation Not Always Necessary. At some facilities the

CMS does not have to be submitted to an overseeing agency for review

and approval in favor of a performance-based approach. In these

scenarios, the overseeing agency (e.g., EPA or a state) might oversee

the facility investigation to ensure that all releases and potential

releases from the facility are adequately identified and characterized

and that adequate remedial goals are developed for the facility. After

the remedial goals undergo public review and comment and are approved

by the overseeing agency, the facility owner/operator would design and

implement a remedy sufficient to meet the remedial goals without direct

agency oversight.

For example, the remedial investigation at a facility may reveal

widespread groundwater contamination caused by a release from an old

surface impoundment. The remedial goals for the facility might be to

control the source contaminating the groundwater, contain the

groundwater plume, and restore groundwater quality to specified cleanup

levels. Media cleanup levels would be included in the remedial goal and

the facility owner/operator would be required to conduct remedial

activities in a manner which involves the affected public in a

meaningful and timely way. The facility owner/operator would then

design and implement a remedy (and a public participation plan). In

this example, while the facility owner/operator might analyze a number

of alternatives, the overseeing agency would not ordinarily second-

guess the

[[Page 19448]]

remedial choice (since the agency had been involved in developing the

performance standards). Instead, the overseeing agency would monitor

compliance with the remedial goals. If the remedial goals or milestones

were not met in the required performance period, additional remediation

measures would likely be required. EPA favors performance-based

approaches provided that the remedial goals for the facility are clear,

the oversight during remedy implementation is appropriate to the

complexity of the facility-specific circumstances, and the public is

substantively involved. Many states, in particular the State of

Georgia, attribute the success of their corrective action programs, in

part, to eliminating Agency review and approval of the CMS as a step in

the corrective action process in favor of a performance-based approach.

c. Facility Owner/Operator Should Recommend a Preferred Remedy. EPA

emphasizes that it expects facility owners/operators to develop and

recommend remedies or remedy performance standards (if a performance-

based model is being used), including proposed media cleanup levels,

points of compliance and compliance time frames, that address the

proposed threshold criteria and present an advantageous combination of

the proposed balancing criteria. During remedy selection, EPA will

consider the facility owner/operator's preferred remedial alternative,

other remedial alternatives and public comment. Although it is the

responsibility of the facility owner/operator to develop and recommend

a preferred remedial alternative or remedy performance standard, the

Agency can reject any alternative and require further analysis or

prescribe a different remedial alternative or remedy performance

standard.

5. Remedy Selection

Remedies should be protective of human health and the environment,

and maintain protection over time. In meeting this remedial goal, EPA

has learned that certain combinations of facility-specific

circumstances are often addressed by similar approaches. Based on this

experience, the Agency has developed certain expectations for remedies.

Remedy expectations are not binding requirements; rather, they reflect

collective experience and guide development of remedial alternatives.

For example, the fact that remedies for highly mobile contaminants

often involve some form of treatment does not preclude a non-treatment

option; however, expectations developed from past experience can focus

program implementors and facility owners/operators on the more

generally acceptable remedial options. In effect, the remedial

expectations allow program implementors and facility owners/operators

to profit from prior EPA experience and focus resources on the most

plausible remedial alternatives. Many of these expectations were first

articulated in the discussion of remedy selection at CERCLA sites in

the National Oil and Hazardous Substances Pollution Contingency Plan

(NCP) (40 CFR 430(a)(1)). The remedial expectations discussed below

express EPA's experiences to date given our current remedial goals and

remedy selection strategies; however, the Agency recognizes that issues

associated with remedial goals and strategies are currently the subject

of considerable public debate, i.e., in Congressional discussions of

Superfund reauthorization. Since EPA is committed to consistency of

results between the RCRA corrective action and Superfund remedial

programs, any revisions to the CERCLA remedial expectations or the

CERCLA remedy selection process will likely be incorporated into RCRA

corrective action. Currently, EPA has the following remedial

expectations:

(a) EPA expects to use treatment to address the principal threats

posed by a site whenever practicable and cost-effective.5

Contamination that represents principal threats for which treatment is

most likely to be appropriate includes contamination that is highly

toxic, highly mobile, or cannot be reliably contained, and that would

present a significant risk to human health and the environment should

exposure occur.

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\5\ The term ``cost-effective'' does not necessarily imply least

costly.

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(b) EPA expects to use engineering controls, such as containment,

for wastes and contaminated media which can be reliably contained, pose

relatively low long-term threats, or for which treatment is

impracticable.

(c) EPA expects to use a combination of methods (e.g., treatment,

engineering and institutional controls), as appropriate, to achieve

protection of human health and the environment.

(d) EPA expects to use institutional controls such as water and

land use restrictions primarily to supplement engineering controls as

appropriate for short- and long-term management to prevent or limit

exposure to hazardous wastes and constituents. EPA does not expect that

institutional controls will often be the sole remedial action.

(e) EPA expects to consider using innovative technology when such

technology offers the potential for comparable or superior treatment

performance or implementability, less adverse impact, or lower costs

for acceptable levels of performance when compared to more conventional

technologies.

(f) EPA expects to return usable groundwaters to their maximum

beneficial uses wherever practicable, within a time frame that is

reasonable given the particular circumstances of the site. When

restoration of groundwater is not practicable, EPA expects to prevent

or minimize further migration of the plume, prevent exposure to the

contaminated groundwater and evaluate further risk reduction. EPA also

expects to control or eliminate surface and subsurface sources of

groundwater contamination.

(g) EPA expects to remediate contaminated soils as necessary to

prevent or limit direct exposure of human and environmental receptors

and prevent the transfer of unacceptable concentrations of contaminants

(e.g., via leaching, runoff or air borne emissions) from soils,

including subsurface soils, to other media.

In addition to experiences recorded in the remedial expectations,

EPA routinely encounters a number of issues associated with remedy

selection, as discussed below.

a. Balancing Treatment and Exposure Control. Risk is a function of

toxicity and exposure; therefore, risk reduction can be accomplished by

reducing toxicity (e.g., through treatment to reduce toxicity, mobility

or volume) and/or preventing exposure (e.g., through engineering and

institutional controls). Program implementors and facility owners/

operators often struggle to find an appropriate balance between these

approaches.

While preventing exposure may appear to be the most direct near-

term means of reducing risk, permanent reduction of the toxicity,

mobility and/or volume of contaminated material might be the most cost-

effective means of reducing risk over time. For example, at a facility

where the remedy relies, in part, on engineering controls to prevent

exposure there could be: associated operation and maintenance costs;

the need to maintain the RCRA facility permit for the life of the

remedy; increased Agency involvement to monitor the continued

effectiveness of the remedy; and, need for institutional controls. When

treatment to reduce toxicity, mobility or volume is chosen, EPA does

not necessarily expect the remedy to involve treatment alone. For

[[Page 19449]]

example, highly toxic contaminated material could be treated so that

the concentrations of hazardous constituents, while still above media

cleanup levels, would support a reliable containment remedy.

The exact balance between reduction in toxicity, mobility or volume

and exposure control will best be established on a case-by-case basis

in consideration of site-specific conditions; however, all things being

equal, permanent reductions in toxicity, mobility or volume are

preferred to exposure control because it is protective of human health

and the environment in the long-term and removes the risks associated

with the potential failure of engineering or institutional controls.

Program implementors and facility owners/operators are cautioned

against too great a reliance on exposure control remedies when

alternatives which include permanent reduction in toxicity, mobility or

volume are available, affordable and practical. Additional information

on the balance between toxicity reduction and exposure control is

available in ``A Guide to Principal Threat and Low Level Threat

Wastes,'' Superfund Publication 9380.3-06FS, November 1991, which is

available in the docket for today's Notice.

b. Remedy Selection Criteria. The 1990 proposal, like the Superfund

NCP, established a two-phased evaluation for remedy selection. During

the first phase, potential remedies are screened to see if they meet

``threshold criteria''; remedies which meet the threshold criteria are

then evaluated using various ``balancing criteria'' to identify the

remedy that provides the best relative combination of attributes. While

the CERCLA remedy selection criteria are not identical to the RCRA

corrective action criteria proposed in 1990, they address the same

types of considerations and should generally result in similar remedies

when applied to similar site-specific conditions.

The 1990 proposal identified four remedy threshold criteria and

five balancing criteria. The four threshold criteria proposed in 1990

were that all remedies must: (1) be protective of human health and the

environment; (2) attain media cleanup standards; (3) control the

source(s) of releases so as to reduce or eliminate, to the extent

practicable, further releases of hazardous waste (including hazardous

constituents) that might pose threats to human health and the

environment; and (4) comply with applicable standards for waste

management. EPA believes these threshold criteria remain appropriate as

general goals for cleanup and screening tools for potential remedies.

There has been some confusion regarding the proposed threshold

criterion that remedies attain media cleanup standards. Attaining media

cleanup standards does not necessarily entail removal or treatment of

all contaminated material above specific constituent concentrations.

Depending on the site-specific circumstances, remedies may attain media

cleanup standards through various combinations of removal, treatment,

engineering and institutional controls. For example, in situations

where waste is left in place in an engineered landfill or under a cap,

media cleanup standards would be attained, in part, through long-term

engineering and institutional controls.

The 1990 proposal identified five balancing criteria for choosing

among remedies that meet the threshold criteria. The five balancing

criteria proposed in 1990 were: (1) Long-term reliability and

effectiveness; (2) reduction of toxicity, mobility or volume of wastes;

(3) short-term effectiveness; (4) implementability; and (5) cost. The

balancing criteria were not ranked in terms of relative importance. As

discussed in the 1990 proposal, any one of the balancing criteria might

prove to be the most important at a particular site. For example, a

remedy at a certain site might be protective in the short term but not

necessarily reliable in the long term (e.g., capping of a highly

contaminated area). In this case, the need for long term reliability

and the potential for long-term operation and maintenance costs would

tend to point toward a remedy which presented a more advantageous

combination of the balancing criteria (e.g., removal or treatment of

hot spots, capping residual contamination, and implementing an

institutional control).

The proposed balancing criterion of cost has caused some confusion.

Cost can and should be considered when choosing among remedies which

meet the threshold criteria. As discussed in the 1990 proposal, EPA

believes that many potential remedies will meet all the threshold

criteria. In that situation, cost becomes an important consideration in

choosing the remedy which most appropriately addresses the

circumstances at the facility and provides the most efficient use of

Agency and facility owner/operator resources. For cost comparisons

between alternatives to be accurate, they should include capital and

operation and maintenance costs for the anticipated life of the remedy.

Pending resolution of the 1990 proposal, program implementors and

facility owners/operators should use the threshold and balancing

criteria proposed in 1990 as guidance when selecting facility-specific

remedies; however, as discussed in Section V of today's Notice, EPA is

also considering and requesting comment on a number of alternatives for

corrective action remedy selection, including focusing on remedy

performance standards. These alternatives are based, in part, on

innovative approaches already used in some states and EPA Regions.

c. Media Cleanup Standards. The term ``media cleanup standards''

typically refers to broad cleanup objectives; it often includes the

more specific concepts of ``media cleanup levels,'' ``points of

compliance,'' and ``compliance time frames.'' The more specific term,

``media cleanup levels'' typically refers to site- and media-specific

concentrations of hazardous constituents, developed as part of the

overall cleanup standards for a facility. Media cleanup standards (and

levels) should reflect the potential risks of the facility and media in

question by considering the toxicity of the constituents of concern,

exposure pathways, and fate and transport characteristics.

Consistent with the CERCLA program, in the RCRA corrective action

program EPA intends to clean up sites in a manner consistent with

available, protective, risk-based media cleanup standards (e.g., MCLs

and state cleanup standards) or, when such standards do not exist, to

clean up to protective media cleanup standards developed for the site

in question (e.g., through a site-specific risk assessment). Both

approaches require a site-specific risk-based decision. When available

media cleanup standards are used (e.g., MCLs, state cleanup standards),

the assumptions used to develop the standardized cleanup values should

be consistent with the site-specific conditions at the facility in

question.

As discussed in the NCP and the 1990 proposal, EPA's risk reduction

goal is to reduce the threat from carcinogenic contaminants such that,

for any medium, the excess risk of cancer to an individual exposed over

a lifetime generally falls within a range from 10-6, in other

words, an exposed individual will have an estimated upperbound excess

probability of developing cancer of one in one-million, to 10-4,

or an exposed individual will have an estimated upperbound excess

probability of developing cancer of one in ten-thousand. For non-

carcinogens, the hazard index should generally not

[[Page 19450]]

exceed one (1).6 Available risk-based media cleanup standards are

considered protective if they achieve a level of risk which falls

within the 10-6 to 10-4 risk range.

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\6\ The hazard index is a measurement of non-carcinogenic risks.

It is calculated by summing two or more hazard quotients for

multiple substances and/or multiple exposure pathways. A hazard

quotient is the ratio of a single substance exposure level over a

specified time period to a reference dose for that substance derived

from a similar exposure period.

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EPA's preference, all things being equal, is to select remedies

that are at the more protective end of the risk range. Therefore,

program implementors and facility owners/operators should generally use

10-6 as a point of departure when developing site-specific media

cleanup standards. Use of 10-6 as a point of departure does not

establish a strict presumption that all final cleanups will necessarily

attain that level of risk reduction. Given the diversity of the

corrective action universe and the emphasis on consideration of site-

specific conditions such as exposure, uncertainty, or technical

limitations, the Agency expects that other risk reduction goals may be

appropriate at many corrective action facilities. As discussed in the

1990 proposal, EPA endorses ``* * * an approach [to remedy selection]

that allows a pragmatic and flexible evaluation of potential remedies

at a facility while still protecting human health and the environment.

This approach emphasizes the overall goal of 10-6 as the point of

departure, while allowing site or remedy-specific factors, including

reasonable foreseeable future uses, to enter into the evaluation of

what is appropriate at a given site.'' (See, 55 FR 30826.)

d. Points of Compliance. As proposed in 1990, the point of

compliance (POC) is the location or locations at which media cleanup

levels are achieved. In the absence of final corrective action

regulations specifically addressing points of compliance, program

implementors and facility owners/operators develop POCs on a site-

specific basis. For air releases, program implementors and facility

owners/operators have generally used the location of the person most

exposed, or other specified point(s) of exposure closer to the source

of the release. For surface water, program implementors and facility

owners/operators have routinely established the POC at the point at

which releases could enter the surface water body; if sediments are

affected by releases to surface water, a sediment POC is also

established. Points of compliance for soils are generally selected to

ensure protection of human and environmental receptors against direct

exposure and to take into account protection of other media from cross-

media transfer (e.g., via leaching, runoff or airborne emissions) of

contaminants. For groundwater, program implementors and facility

owners/operators generally set the POC throughout the area of

contaminated groundwater or, when waste is left in place, at and beyond

the boundary of the waste management area encompassing the original

source(s) of groundwater contamination. This approach to the

groundwater POC is generally referred to as the ``throughout the plume/

unit boundary POC.'' This approach is consistent with the groundwater

POC described in the preamble to the Superfund program's National Oil

and Hazardous Waste Contingency Plan (NCP, pages 8713 and 8753, Federal

Register March 8, 1990). EPA recommends consideration of the following

factors when developing a site-specific groundwater POC: proximity of

sources of contamination; technical practicability of groundwater

remediation; vulnerability of the groundwater and its possible uses;

and, exposure and likelihood of exposure and similar considerations.

In 1990, EPA proposed specific POCs for groundwater, air, surface

water, and soil. These proposals, especially the proposed POC for

groundwater, generated a substantial number of comments. Developing

site-specific points of compliance generally continues to be an area of

discussion and debate. In Section V.E.2 of today's Notice, EPA requests

additional comment regarding POCs for corrective action.

e. Compliance Time Frame. The compliance time frame is the time

period and schedule according to which corrective actions are

implemented. In the 1990 proposal, EPA expressed a preference for the

expeditious stabilization of releases, followed by timely completion of

corrective actions and full restoration of contaminated media; however,

a number of factors may influence the time frame within which media

cleanup standards are attained, including: the extent and nature of

contamination at the facility; risks to human health and the

environment before and during remedy implementation; practical

capabilities of remedial technologies; the availability of treatment or

disposal options; and, the desirability of utilizing emerging

technologies.

Remedy implementation schedules developed at the time of remedy

selection should, to the extent possible, specify the compliance time

frame; however EPA recognizes that uncertainties associated with

remediation may make it impossible to specify when a remedy must be

completed. For example, due to complexities associated with contaminant

occurrence in the subsurface and with groundwater remediation in

general, the time needed to remediate groundwater at some sites cannot

be accurately predicted. In these circumstances, the Agency recommends

the use of performance measures or milestones monitored over time to

track progress toward attaining remedial goals. These performance

measures should be specified in the remedy implementation plans or

performance standards. In cases where it is not practical to determine

a precise compliance time frame, estimated compliance time frames may

be used to help evaluate remedial alternatives and the technical

practicability of site-specific remedial goals.

EPA emphasizes that, at many sites, the primary focus should be on

near-term stabilization of releases. At these sites, it may be

appropriate to focus the compliance time frame and corrective measures

implementation schedule on the stabilization action; the remaining

compliance time frame and corrective measures implementation schedule

(if any are necessary) could then be developed during selection of the

facility-wide remedy.

f. Site-Specific Risk Assessments. EPA's strategy for corrective

action implementation incorporates risk-based decision-making

throughout the corrective action process. At some sites, risk-based

decisions can be made using standardized risk considerations, such as

standardized exposure assumptions. At other sites, a site-specific risk

assessment will be desirable. When a site-specific risk assessment is

needed, EPA, in some cases, has directed the facility owner/operator to

perform the risk assessment; in other cases EPA has chosen to do the

risk assessment itself based on data submitted by the owner/operator.

Site-specific risk assessments conducted at RCRA facilities may be

based on CERCLA's extensive guidance in this area (e.g., ``Risk

Assessment Guidance for Superfund,'' Volumes I and II, Interim final

EPA/540/1-89/001 and 002, December 1989 and March 1989). Additional

information on the Agency's approach to risk-based decision-making is

available in the Agency's recent memorandum on risk characterization.

(See, 3/21/95 memorandum from Carol Browner, ``EPA Risk

Characterization Program'' in the docket for today's Notice.) The

[[Page 19451]]

Administrator stated, ``* * * we must improve the way in which we

characterize and communicate environmental (human health and ecologic)

risk.'' The key values conveyed in the 1995 Risk Characterization

guidance are: (1) ``transparency'' in the decision making process

(i.e., full and open discussion of supporting analyses, uncertainties,

assumptions, etc.); (2) ``clarity'' in communication within the Agency

and the public regarding environmental risk and the uncertainties

associated with our assessments; (3) consistency; and (4)

reasonableness in our use of scientifically defensible risk

assessments. It is EPA's policy to incorporate these values in all

risk-based considerations, including site-specific risk assessments at

corrective action facilities.

g. Ecological Risk. Corrective action remedies must protect both

human health and the environment. Some form or ecological assessment

will generally be necessary at all corrective action facilities; at

some corrective action facilities, a formal ecological risk assessment

will be necessary. When an ecological risk assessment is needed, EPA,

in some cases, has directed the facility owner/operator to perform the

risk assessment; in other cases EPA has chosen to do the risk

assessment itself based on data submitted by the owner/operator. The

use of ecological risk assessment is an important component of the

corrective action program. Often, environmental receptors are sensitive

to contamination at lower concentrations than humans are, and the

exposure is usually longer and more intense. In order to fulfill EPA's

mandate, the program must be implemented in a manner that is protective

of both human health and the environment. This includes the selection

of media cleanup standards and the implementation of remedial

activities that are protective or ecologic receptors. In the process of

selecting stabilization measures or implementing final remedies,

program implementors and facility owner/operators should be aware of

how different remedial activities may affect ecological systems,

especially sensitive populations, either on or adjacent to the

facility.

Ecological risk assessment may be even more important when non-

residential land use assumptions are used. Action or cleanup levels

based on human health exposure scenarios or land use assumptions might

not be protective of ecological receptors; therefore, consideration of

the ecological exposure pathway may, in certain settings, be the

driving factor in selection of action or cleanup levels.

CERCLA's National Contingency Plan (55 FR 8666, March 8, 1990)

designates certain key Federal agencies, state agencies and Indian

tribes as natural resource trustees. Section 300.600 of the NCP

indicates that trustees act on behalf of the public in regards to

protection of natural resources. Under CERCLA, trustees should be

notified when contamination threatens natural resources. As a matter of

policy, EPA recommends that trustees also be notified when RCRA

corrective action identifies a release that threatens natural

resources. In addition, trustee agencies have a great deal of

experience in their respective areas and can be used as a valuable

resource when conducting ecological assessments.

h. Determinations of Technical Impracticability. Remediation of

contaminated media to a desired media cleanup standard can, in certain

situations, be technically impracticable. Congress formally recognized

technical impracticability (TI) in the CERCLA statute and EPA

incorporated the concept in the National Contingency Plan and the 1990

Subpart S proposal (proposed 40 CFR 264.525(d) and 264.531).

Technical impracticability decisions may be made for any medium;

however, contaminated groundwater has received in the most TI-related

attention. The single greatest cause for technical impracticability

determinations during groundwater restoration has been the presence of

dense non-aqueous phase liquids (DNAPLs).\7\ The Superfund program

estimates that DNAPLs are likely present at approximately 60 percent of

NPL sites. While EPA has not conducted an overall assessment of the

presence of DNAPLs at RCRA facilities, it believes the percentage of

DNAPLs at high priority corrective action facilities is likely

comparable to the Superfund estimate for NPL sites. To provide a

framework for addressing technical impracticability, the Agency issued

``Guidance for Evaluating the Technical Impracticability for Ground-

Water Restoration'' (EPA/540-R-93-080). EPA encourages program

implementors and facility owner/operators to refer to this guidance for

a more detailed description of technical impracticability and a

discussion of related issues, including: a description of DNAPLs and

why they are difficult to remediate; factors to consider when making a

technical impracticability determination; and, appropriate and

practicable remedial options in situations where complete restoration

is technically impracticable.

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\7\ Liquid contaminants that do not readily dissolve in water

are known as non-aqueous phase liquids (NAPLs). NAPLs are divided

into two classes: light NAPLS (LNAPLs), such as gasoline, are less

dense than water; dense NAPLs (DNAPLs), such as the common solvent

trichloroethylene, are more dense than water. NAPLs in the

subsurface can cause long-term groundwater contamination, can be

difficult to locate and, in many circumstances, technically

impracticable to remove.

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The possibility that certain remedies may be technically

impracticable should be considered throughout the remediation process--

from the early stages of developing a conceptual site model through all

stages remedy implementation. When possible, determinations of

technical impracticability should be made early in the remediation

process and included in RCRA corrective action remedial decision

documents (permits and orders). In some cases, program implementors and

facility owner/operators might not have enough information to justify a

determination of technical impracticability at the time of the site

characterization or, even, when the remedy is selected. At the same

time, there may be strong indications that restoration of a particular

medium will be difficult and may prove technically impracticable (e.g.,

complicated groundwater remedies). In such situations, program

implementors and facility owner/operators may choose not to establish a

fixed media cleanup level, point of compliance or compliance time-

frame, since achieving full restoration may prove technically

impracticable. Instead, the remedy might proceed using interim goals

and performance measures which could be revisited as more information

became available. To avoid creating unrealistically high remedial

expectations in these situations, the corrective action permit or order

should discuss the possibility that full restoration of a particular

medium may prove technically impracticable.

By recognizing technical impracticability, EPA is not in any way

scaling back the general goal of returning contaminated groundwater to

beneficial uses. Where technical impracticability is determined, the

Agency would expect to require an alternative remedial strategy that

is: (1) technically practicable; (2) consistent with the overall

objectives of the remedy; and (3) controls the source(s) of

contamination, and human and environmental exposures. A determination

of TI does not release a facility owner/operator from corrective action

obligations.

i. Natural Attenuation. EPA's three major remedial programs (i.e.,

Superfund, RCRA Corrective Action Program, and the Underground Storage

[[Page 19452]]

Tank Program) recognize that natural attenuation, in certain

circumstances, can be an acceptable component of remedial actions for

contaminated groundwater. As discussed in the NCP, a natural

attenuation remedy uses natural processes such as biodegradation,

dispersion, dilution, and/or adsorption to achieve remedial goals.

(See, 55 FR 8734, March 8, 1990.)

Natural attenuation remedies are not ``no action'' remedies.

Natural attenuation should be evaluated, where it might be applicable,

along with and in a manner similar to other potential remedial

approaches. In some cases, natural attenuation might be only one aspect

of an overall approach to achieving remedial goals. As in any other

remedial approach, a proposed remedy involving natural attenuation will

have to be protective of human health and the environment and satisfy

remedy selection criteria. Program implementors and facility owner/

operators should provide a complete description of natural attenuation

remedies and emphasize that, by approving a natural attenuation remedy,

an overseeing agency is not allowing a responsible party to avoid its

remedial obligations. Remedies involving natural attenuation should

include: a thorough site characterization; source control or removal

where appropriate; documentation or evidence of attenuation processes

and the ability of these processes to achieve remedial objectives; an

appropriate long-term monitoring plan; and, in certain circumstances, a

contingency plan for a more active remedial measure (e.g., pumping).

j. Land Use. As discussed in the 1990 proposal, EPA's policy is

that current and reasonable expected future land use and corresponding

exposure scenarios should be considered in both the selection and

timing of remedial actions. In the 1990 proposal, the Agency stated,

``* * * contaminated soil at an industrial site might be cleaned up to

be sufficiently protective for industrial use but not residential use,

as long as there is reasonable certainty that the site would remain

industrial.'' (See, 55 FR 30803.) Recently, EPA issued additional

guidance on incorporating reasonable future land use assumptions in

remedial decision making in the guidance document ``Land Use in the

CERCLA Remedy Selection Process'' (OSWER Directive No. 9355.7-04, May

25, 1995; see Section II.F.6.a of today's Notice).

Reasonable future land use assumptions should be assessed when

developing remedial goals for any given facility and used to focus all

aspects of the corrective action process; however, EPA cautions against

automatically restricting assumptions of future land use to

extrapolation of the current use or relying only on designated zoning

or industrial use codes to establish land use assumptions. A large

industrial facility could include office areas, parking areas, a child

care area or on-site residences. Highly industrial sites are sometimes

located adjacent to residential properties. All of these factors should

be considered when making land use assumptions.

EPA recognizes the complexities associated with developing

reasonably anticipated land use assumptions and the need for caution

when basing remedial decisions on assumptions of future use; however,

the Agency believes that non-residential land use assumptions are

appropriate for many corrective action facilities. When remedies based

on non-residential exposure scenarios involve a combination of

treatment and engineering or institutional controls, program

implementors and facility owner/operators should use currently

available tools to ensure that the remedy continues to achieve its

objectives over time and the land use assumptions remain valid. For

example, many implementing agencies allow facility owner/operators to

use institutional controls to ensure that exposure scenarios at the

facility remain consistent with those used at the time of remedy

selection.

EPA requests comments on these and other land use issues in Section

V.E.1 of today's Notice.

6. Remedy Implementation

Remedy implementation typically involves detailed remedy design,

remedy construction, remedy operation and maintenance, and remedy

completion. In the CERCLA program, remedy implementation is known as

``remedial design/remedial action, operation and maintenance''; in the

corrective action program, it is known as ``corrective measures

implementation'' or CMI. As proposed in 1990, corrective measures

implementation is generally conducted in accordance with an approved

CMI plan. Components of corrective measures implementation might

include: conceptual design, operation and maintenance, intermediate

design plans and specifications, final design plans and specifications,

construction work plan, construction completion report, corrective

measure completion report, health and safety plan, public participation

plan and progress reports; however, in many cases, only a subset of

these documents will be required for individual corrective measures

implementations.

EPA has found a number of useful strategies for improving the

efficiency of corrective measures implementation, as discussed below.

a. Performance Based Corrective Measures Implementation. Similar to

the performance-based approach discussed for evaluation of remedial

alternatives in Section III.C.4.b of today's Notice, some states and

EPA regions have developed a performance-based approach to corrective

measures implementation. When using a performance-based approach to

corrective measures implementation, the overseeing agency generally

works with the facility owner/operator during remedy selection to

develop remedial goals for the facility. Following public review and

comment and approval of a remedy and remedial goals, the facility

owner/operator is tasked with designing and implementing the chosen

remedy in a manner which would meet the remedial goals. For example, if

the remedy chosen for a particular facility included some form of

groundwater treatment, an accompanying remedial goal might be to

achieve hydrologic containment of the groundwater plume and continuous

reduction of the concentrations of hazardous constituents. While the

overseeing agency would review and approve the remedy and remedial

goals and be involved in developing monitoring systems or other means

of measuring compliance with the remedial goals, it would not

necessarily be involved with the details of remedy design, construction

and implementation. Rather, the overseeing agency would monitor

compliance with the remedy implementation milestones and remedial goals

and become involved in the details of remedy design and implementation

only if a facility owner/operator was having trouble meeting the

remedial goals. A performance-based approach to remedy implementation

emphasizes that the facility owner/operator, not the overseeing agency,

is responsible for designing and implementing a successful remedy.

b. Performance Monitoring. Evaluation of the performance of a

chosen remedy is necessary to measure progress toward remedial goals

and ensure that remedial objectives are achieved. Program implementors

and facility owner/operators have recognized that appropriately

designed performance monitoring programs can maximize efficiency and

cost-effectiveness and ensure protection of potential human or ecologic

receptors.

[[Page 19453]]

Properly designed performance monitoring programs are especially

important for groundwater remediation because the concentration and

distribution of contamination in the subsurface often change with time.

Likewise, the ability of remediation systems to prevent migration of

contaminated groundwater can be influenced by natural and human factors

(e.g., seasonal precipitation or nearby agricultural groundwater

usage). For groundwater remediation systems, performance monitoring can

assess changes in subsurface conditions so that the remedy can be

modified to ensure maximum efficiency in terms of both the location and

pumping rate at individual extraction wells.

Performance monitoring is also a critical aspect of a remedial

alternative that relies on engineering controls (e.g., liners, barrier

walls). Poorly designed monitoring programs for engineered remedies can

potentially fail to detect releases from the ``contained'' areas.

While EPA recognizes the importance of performance monitoring, it

also acknowledges that long-term routines of sample collection and

analysis carry significant financial burdens. The Agency encourages

program implementors and facility owner/operators to design monitoring

programs with effectiveness and efficiency as fundamental

considerations. For example, due to subsurface heterogeneities, it may

be more effective and efficient to monitor a greater number of discrete

locations for a subset of mobile contaminants, than to monitor fewer

locations for an exhaustive list of analytical parameters and

contaminants.

Properly designed performance monitoring programs are integral to

remedy success and should be considered throughout the corrective

action process, including in remedy selection and design. Detailed

guidance regarding performance monitoring and designing monitoring

programs in general is available in ``RCRA Ground-Water Monitoring:

Draft Technical Guidance'' (EPA/530/R-93/001) and ``Methods for

Monitoring Pump-and-Treat Performance'' (EPA/600/R-94/123).

c. Completion of Corrective Measures. Documents specifying

corrective measures implementation should include methods to determine

when remedial goals have been achieved. For example, statistical

procedures are often appropriate for determining that concentrations of

hazardous constituents measured in groundwater samples meet a remedial

goal. Other remedies might require that certain tests be undertaken to

determine that engineering standards have been achieved. Decisions

regarding completion of corrective measures may be made for the entire

facility, for a portion of the facility, or for a specified unit or

release. The public and affected community should be given an

opportunity to review and comment on all proposals to complete

corrective measures.

In 1990, EPA proposed that corrective measures be considered

complete based on a three-part evaluation: the corrective measure had

to have complied with all media cleanup standards; all required source

control actions would have to be completed; and all specified

procedures for removal and decontamination of units, equipment, devices

and structures would have to be complete. In addition to certifying

compliance with the three criteria, the Agency proposed that the owner/

operator's certification be signed by an independent registered

professional ``skilled in the appropriate technical discipline(s).''

The Agency chose not to propose that all certifications be signed by an

independent qualified registered professional engineer because it

believed that engineering certifications would not be appropriate in

all cases (e.g., for a remedy largely addressing groundwater, the

Agency believed that certification by a hydrogeologist might be more

appropriate). In the absence of final regulations addressing completion

of corrective measures, program implementors and facility owner/

operators should use the requirements for completion of corrective

measures proposed in 1990 as guidance when developing site-specific

procedures for completion of corrective measures. At a minimum, the

public and affected community should be given notice and an opportunity

to comment before corrective action implementation is terminated and a

facility is released from its RCRA obligations.

D. Incorporation of Corrective Action in RCRA Permits

RCRA Section 3004(u) mandates that corrective action and schedules

of compliance be required for facilities seeking a permit, when

corrective action cannot be completed prior to permit issuance.

Approximately half the states are authorized to implement state RCRA

corrective action programs in lieu of the Federal program. In

authorized states, the state issues the RCRA permit including the

corrective action component (using any of the options discussed above).

In states not authorized for the corrective action program, the state

typically issues most of the RCRA permit and EPA issues the corrective

action portion. Although any given facility may be issued a portion of

its RCRA permit by an authorized state and a portion by EPA, this

should not lead to the perception that any given facility has more than

one RCRA permit. Program implementors and facility owner/operators

should remember that any given facilit

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