RCRA Cleanup Reforms - round three

• By Douglas Randall
• Feb 01, 2000

The U.S. Environmental Protection Agency (EPA) has recently completed its third major evaluation and effort to reform the Resource Conservation and Recovery Act (RCRA) Corrective Action program since the program's inception as part of the 1984 Hazardous and Solid Waste Amendments (HSWA) to RCRA. For a refresher on RCRA, see RCRA Corrective Action primer. This most recent reform effort is designed to achieve faster, focused, more flexible cleanups of hazardous waste sites at the approximately 3,700 treatment, storage and disposal (TSD) facilities nationwide.

1991 Strategic Management Framework

In 1990, EPA's Office of Solid Waste and Emergency Response (OSWER) completed a critical assessment of the RCRA Corrective Action program. This initial assessment, the RCRA Information Study (RIS), reviewed the program's progress and accomplishments since the program's inception. In 1991, based on this study, EPA developed the Strategic Management Framework to focus resources on those facilities and activities that produce the greatest environmental benefits.

The Strategic Management Framework introduced now-familiar RCRA initiatives, such as priority ranking of RCRA facilities through the National Corrective Action Prioritization System (NCAPS), controlling or abating imminent threats to human health and the environment through the Stabilization Initiative, and requiring accountability and tracking of program progress using the RCRA Information System (RCRIS). Principles for governing the strategic management of the RCRA program included fully authorizing the states to implement the RCRA Corrective Action program; national consistency between states and regions; flexibility in setting priorities; accountability and measurement of accomplishments; and the realization of limited resources and the need for trade-offs.

1996 advanced notice of proposed rulemaking

In 1996, due to considerable criticism by states, environmental groups and the regulated community, EPA re-evaluated the Corrective Action Program through the Subpart S Initiative, in what is now referred to as the Advanced Notice of Proposed Rulemaking (ANPR) for Corrective Action (61 Federal Register (FR) 19,432, May 1, 1996). Taking into consideration Corrective Action implementation experience, feedback from stakeholders and comments received on the 1990 Subpart S proposal (55 FR 30, 798, July 27, 1990), EPA developed five objectives for improving the Corrective Action program under the Subpart S Initiative. These included creating a consistent, holistic approach to RCRA cleanups; establishing protective, practical cleanup expectations; shifting more of the responsibilities for cleanup to the regulated community; focusing on opportunities to streamline and reduce costs; and enhancing public participation. The ANPR requested comments from stakeholders on all aspects of the program. Based o n these comments, EPA planned to publish Corrective Action rule language in fall of 1997. The goal was to promulgate elements of the 1990 proposal that the agency believed did not need additional public review and to re-propose other elements.

1999 RCRA Cleanup Reforms

Now, more than two years beyond the scheduled rule making date of fall 1997, EPA has published and plans to implement a set of administrative reforms to the program known as the RCRA Cleanup Reforms. The reforms were published as part of RCRA Cleanup Reforms announcement documents, in July 1999 (EPA530-F99-018). The RCRA Cleanup Reforms represent EPA's most recent effort to address the key impediments to cleanups, maximize program flexibility and spur progress toward a set of highly ambitious national cleanup goals. Set by EPA under the Government Performance and Results Act (GPRA), the goals include that by FY 2005, 95 percent of high-priority RCRA facilities will have human exposures controlled, and 70 percent of high priority RCRA facilities will have groundwater releases controlled.

Enacted in 1993, the GPRA places new management expectations and requirements on federal agencies by creating a framework for more effective planning, budgeting, program evaluation and fiscal accountability for federal programs. The intent of GPRA is to improve public confidence in federal agency performance by holding agencies accountable for achieving program results. The success of the reforms in meeting this ambitious goal will be measured through the following environmental indicators:

1. Current human exposures under control; and
2. Migration of contaminated groundwater under control.

The RCRA Cleanup Reforms announcement outlines how EPA plans to meet three general goals for increasing RCRA cleanups and meeting the GPRA targets.

Provide new results-oriented cleanup guidance with clear objectives. As part of the effort to provide new results-oriented cleanup guidance, EPA stated that it would soon be announcing its intent to not finalize most of the provisions of the July 27, 1990 proposed Subpart S rule. This announcement was published in the Federal Register on Oct. 7, 1999 (64 FR 54,604, Oct. 7, 1999). In its place, EPA will announce that the 1996 ANPR for Corrective Action will remain the primary Corrective Action program guidance.

New Corrective Action guidance to be provided as part of the reforms includes results-based approach guidance, Corrective Action completion guidance, groundwater use guidance and the recently issued Environmental Indicators guidance. According to EPA, the results-based approach guidance will stress results-based approaches that emphasize outcomes and eliminate unnecessary process steps to be used in meeting the GPRA goals. Results-based approaches include setting cleanup goals, providing procedural flexibility in how goals are met, inviting innovative technical approaches, focusing data collection, and letting owners and operators undertake cleanup action with reduced agency oversight, where appropriate.

The Corrective Action completion guidance will discuss how to document the often complicated completion of RCRA Corrective Action at facilities. EPA believes that this guidance will provide for a more predictable completion process and provide owners and operators with reasonable assurance that regulatory activities can be completed at their facility.

The groundwater use guidance will address the controversial subject of current and future use of groundwater at RCRA facilities. The recently issued Environmental Indicators guidance details, through a series of questions and decision flow charts, how to determine if a facility has met the Environmental Indicators of controlling current human exposure and controlling the migration of contaminated groundwater.

Foster maximum use of program flexibility and practical approach. To foster maximum use of existing program flexibility, EPA plans to strongly encourage states to expeditiously adopt the following recent cleanup-related rulemakings into their programs:

• The Hazardous Remediation Waste Management Requirements ("HWIR-Media,"; 63 FR 65874, Nov. 30, 1998);
• The Post-Closure Regulation (63 FR 56710, Oct. 22, 1998); and
• The Land Disposal Restrictions Standard for Contaminated Soils (63 FR 28617, May 26, 1998).

If expeditiously adopted by the states, EPA believes that long-standing regulatory impediments to the Corrective Action program can be reduced through the use of these rules. Missing from the list of remediation-related rule makings offering regulatory flexibility is the Corrective Action Management Unit (CAMU) rule promulgated in 1993. The CAMU rule, which allows for the management of remediation waste in on-site staging piles, was challenged by environmental groups and is currently being negotiated. Training at the regional and state level will also be used to emphasize flexibility in existing policies and guidance.

Enhance community involvement and access. Public involvement has always been an important component of the RCRA program. However, through the reforms, EPA will specifically emphasize early and meaningful involvement in the Corrective Action program. EPA hopes to accomplish this goal through training, guidance, stakeholder workshops, a Corrective Action newsletter and by providing the public with detailed information on cleanup progress.

Detailed information on cleanup progress for the targeted 1,700 high-priority RCRA facilities will be provided on the Internet at www.epa.gov/epaoswer/osw/index.htm. These 1,700 high-priority sites form a baseline for tracking the progress in meeting the GPRA goals. No environmental indicator data is currently provided with the baseline data, which was collected in the early 1990s and is maintained on RCRIS. Due to its age, much of the information on which the baseline was generated and the actual information provided is outdated and often incorrect. A second list of 284 facilities (17 percent of the high-priority sites) that have met the Environmental Indicators are also provided on the Internet. In the future, EPA plans to provide statistics by state and EPA region on the number of sites and their cleanup progress.

The Internet site is also slated to include a search engine that will allow the public to locate detailed information on Corrective Action sites near them. In the announcement, EPA claims that by providing this information on the Internet, it hopes to generate greater public interest and awareness at individual facilities, thereby enhancing the ability of the public to become more involved in cleanup decisions.

Although not stated in the announcement, it can be assumed that by providing this information EPA also hopes, through public pressure by citizen and environmental groups, to force more aggressive cleanup activity by the states and industry.

Conclusions

Since its inception, the RCRA Corrective Action program has been subject to considerable criticism, including slow progress in achieving cleanup or other environmental results; an emphasis on the 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 the lack of meaningful public participation. These most recent RCRA Cleanup Reforms represent EPA's third major effort to reform the program and address these issues. What separates this most recent reform effort from earlier efforts is the presence of well-defined goals set by EPA under the GPRA, the ability to measure success in meeting the goals using results-oriented environmental indicators, and accountability if the goals are not met. It is too early to tell what effect the reforms will have on achieving faster, more efficient cleanups at RCRA facilities and to what degree the states wi ll help or hinder the reforms. However, the development of well-defined goals, a system for measuring success, and accountability if the goals are not reached are the first steps toward meaningful reform.

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RCRA Corrective Action primer

The Corrective Action program under the Resource Conservation and Recovery Act (RCRA) is a comprehensive, site-wide cleanup program designed to identify and, when necessary, remediate releases of hazardous waste or hazardous waste constituents from solid waste management units (SWMUs) at facilities treating, storing or disposing (TSDs) of hazardous waste. There are three primary ways a TSD facility becomes subject to the Corrective Action process:

1. A TSD facility that is seeking a permit to operate must ensure, through the Corrective Action process, that no unacceptable releases from past waste management activities have occurred.
2. EPA may issue an enforcement order to implement Corrective Action.
3. A facility owner or operator may volunteer to perform Corrective Action by entering an agreement with EPA to expedite the process.

The RCRA Corrective Action program is run jointly by EPA and the states, with 33 states and territories authorized to implement the program. There are currently approximately 3,700 facilities nationwide subject to the Corrective Action program.

The RCRA Corrective Action program differs from the program set up under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as Superfund, in that it deals with sites that have viable operators and on-going operations. Superfund was primarily designed to remedy abandoned sites or sites where a sole responsible party cannot be identified.

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This story appeared in the Feb. 2000 issue of EP, Vol. 11, No. 2, p. 34.

This article originally appeared in the 02/01/2000 issue of Environmental Protection.