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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A96-9707

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** May 1, 1996
- **Citation:** 61 FR 19432

## Text

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

[[Page 19434]]

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\2\ These states are: Wisconsin, Texas, Georgia, Idaho, Florida,
Colorado, New York, California, Utah, Oklahoma, North Carolina,
Delaware, and Missouri.
---------------------------------------------------------------------------

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
c

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A96-9707. Public record. Not legal advice.