Fast-tracking RCRA corrective actions

The U.S. Environmental Protection Agency (EPA) Resource Conservation Recovery Act (RCRA) corrective action process has developed slowly since its enactment as part of the 1984 Hazardous and Solid Waste Amendments (HSWA). To date, some facilities have trudged through the RCRA corrective action process as a requirement of their RCRA Part B or RCRA post-closure permit. But among the RCRA sites that have not secured permits, it is called the "black hole" process because it has languished with no apparent activity since its enactment.

GPRA background and the EPA strategic plan

Several government reform initiatives have been recently passed in an attempt to force federal agencies to use resources wisely and establish clear goals and performance measurements. One of the most aggressive measures is the Government Performance and Results Act (GPRA) of 1993 (Bill No. S.20. Public Law: 103-62(08/03/93). Under GPRA, federal agencies are required to prepare five-year strategic plans that include goals, milestones and performance measurements and prepare annual performance plans and annual performance reports. Poor plans or poor performance will jeopardize an agency's mission and its funding; therefore, there is tremendous and unprecedented incentive for these agencies to perform as planned. The means by which EPA measures its performance (and its budget utilization) is the control of the annual number of human exposures to and groundwater releases of hazardous substances by a specified number of RCRA sites. EPA is subject to GPRA and, as such, has developed a five-year strategic plan (1997-2002) that outlines 10 goals, including clean air, clean water, sound science, credible deterrents and better waste management. In its 2000 budget request, EPA asked for $1,656,719,500 in funding for its waste management programs. Of that amount, it requested $22,755,500 to fund its own RCRA corrective action initiatives and $24,808,800 to fund RCRA state grant programs, for a total of more than $47,500,000 in RCRA funding. This represents an 11 percent increase in funding over 1999 levels. Clearly EPA sees an opportunity to make progress in RCRA corrective action and is requesting (and receiving) more resources in this area, as indicated by the increased funding. In January 1999, EPA established a baseline of 1,700 high priority RCRA corrective action facilities. In order to measure its performance in achieving its stated goal of better waste management, EPA has committed to controlling human exposures and groundwater releases of hazardous substances at 90 percent of the 2,475 RCRA corrective action sites by 2005 (2,228 sites). To begin this process, EPA plans on controlling exposures and releases from 83 high priority sites in 1999 and 170 high priority sites in 2000. To reach its goal, the remaining 1,975 sites will need to be addressed in the next five years at a rate of 395 sites per year.

Environmental indicator forms

Traditionally, EPA has emphasized processes and reports mandating clean up levels that were not practicable from an engineering perspective, due to either hydrogeologic or contaminant-related factors. Now, with EPA measuring its performance by controlling human exposures and groundwater releases at a specified number of RCRA sites annually, environmental indicators have been defined and technical impracticability determinations will be made (EPA 530-D-00-001 5/2000). This is the first time EPA will be held accountable for meeting performance goals specified in its annual performance plan. To prove that RCRA facilities have controlled human exposures and groundwater releases, EPA intends to use environmental indicator (EI) forms to document that exposures and releases are under control. While the forms can be completed by EPA or the state, only after a positive determination is made internally by EPA (i.e. EPA can reasonably conclude that exposures and releases are under control) can the agency take credit for making progress toward the goals stated in its strategic plan. In order to minimize the impact this program has on regulated facilities, it is critical to develop the data necessary to support this determination. It is important to note that the forms for determining both human exposures and groundwater releases rely on currently available data and current land uses. Some key components of the EI determinations are provided below.

Human exposures determination

A flowchart for this determination is provided in Figure 1. For the human exposures determination, EPA must use the currently available data to establish if groundwater, soil, surface water, sediments or air media are contaminated or reasonably expected to be contaminated from releases of solid waste management units (SWMUs), areas of concern (AOCs) or regulated units (RUs). As part of this determination, the regulated facility must therefore know the contaminants that are associated with each of these areas and the relevant protective risk-based levels for each type of potentially impacted media. A comparison must then be made between the known or suspected contaminant levels and the risk-based criteria. Figure1 For those media and areas that exceed the criteria, EPA must then determine if a complete pathway exists for the contamination to reach human receptors. Identified receptors that must be considered include residents, workers, day-care, construction, trespassers, recreation and food. This will involve a qualitative evaluation of the mechanisms by which any of these receptors can be exposed to the contaminants (inhalation, ingestion of soil or groundwater, etc.) For those exposures that are identified, EPA must determine if the exposures are "significant." Significant is defined as potentially unacceptable exposures resulting from excessively high contaminant concentrations or exposure frequencies. The exposure frequency is high if the frequency is greater than that assumed in derivation of the risk-based criteria. Contaminant concentrations are considered high if they are "substantially" above acceptable levels. Finally, if the exposures are deemed significant, EPA may consider a site-specific human health risk assessment to prove that the exposures are within acceptable limits given site-specific factors. If EPA determines that human exposures are not under control, it is likely it will order interim measures to bring the exposures under control. Only after a facility can demonstrate through this process that human exposures are under control will EPA be allowed to take credit for this facility as a part of its performance measurement.

Groundwater releases determination

For a groundwater release determination, EPA must use the most current available data to establish if groundwater is contaminated or reasonably expected to be contaminated from releases subject to RCRA corrective action anywhere at, or from, the facility. A flowchart for this determination is provided in Figure 2. As part of this determination, the regulated facility must therefore know what contaminants are present in any form, non-aqueous phase liquids (NAPL) and/or dissolved vapors or solids that are subject to RCRA and what the relevant protective risk-based levels for the contaminants are. Figure2 A comparison must be made between the known or suspected contaminant levels and the risk-based criteria. If contaminated groundwater is present, EPA must determine if the migration of contaminated groundwater has stabilized. To prove stabilization, the facility must know the nature and extent (horizontal and vertical) of contamination and have monitoring data showing that it is not migrating or that there are physical barriers to migration. The facility must also prove that the contamination will remain within the horizontal and vertical "existing area of contamination." An evaluation of the potential discharge to surface water bodies must also be made. If groundwater discharges to surface water, EPA must determine if the discharge is insignificant. EPA defines the discharge as insignificant if the maximum contaminant concentration in the discharge is less than 10 times the appropriate groundwater level. If the discharge is significant, EPA must determine if the discharge can be shown to be currently acceptable by proving the discharge is protective of surface water, sediment and ecosystems. Finally, the facility must commit to ongoing groundwater monitoring to prove that the groundwater contamination remains within the "existing area of contaminated groundwater." Again, if EPA determines that groundwater migration is not under control it will likely order interim measures to contain the impacted groundwater. Only after a facility can demonstrate through this process that contaminated groundwater is under control will EPA be allowed to take credit for this facility as a part of its performance measurement.

Proving your case for EPA

For most sites it will be relatively straightforward to demonstrate that human exposures are under control. It is recommended that facilities gather the data to support successful completion of the form. Obviously, if human exposures are not under control, it is in the facility's best interests to implement a remedy to mitigate this condition as soon as practical. Proving that contaminated groundwater is under control is another matter. It will be very difficult without a natural or constructed physical or hydraulic barrier to groundwater flow to prove that contaminated groundwater is under control. Furthermore, if groundwater is discharging to surface water and the concentrations are above 10 times the groundwater standard, it will be very difficult to prove, without an ecological risk assessment, that the discharge is protective of the surface water, sediment and ecosystems. It is recommended that RCRA facilities, especially high priority facilities (as designated by the National Corrective Action Prioritization System), conduct the process of completing the forms to identify data gaps and begin filling them so that a positive demonstration can be made.

Motivating factors

EPA is under tremendous pressure to make these determinations in order to receive credit for achieving its strategic plan's goals and objectives. EPA's mission, budget and livelihood depend on it. As such, EPA will use every means at its disposal to accomplish these objectives. Recently, EPA offered voluntary cooperative agreements to high priority sites to enable these determinations to be made on a "non-enforcement" basis. While these agreements are voluntary, they have very specific and committed timetables for making EI determinations and, necessary, for committing to corrective measurers such as source control, source removal or hot spot treatments to either contain groundwater or mitigate human exposures. If facilities do not participate in the voluntary efforts, EPA will use its authority under 3008(h) (published May 1, 1996 (61 Federal Register 19432) to order such a determination be made. Facilities should expect contact by EPA offering these options by 2002. E-sources U.S. Environmental Protection Agency Office of Solid Waste: Waste Cleanup - www.epa.gov/epaoswer/osw/cleanup.htm U.S. Environmental Protection Agency FY 2000 Annual Performance Plan - www.epa.gov/ocfopage/budget/2kplan/2000contents.htm Hazardous Waste Clean-up Information - Using GPRA to Environmental Quality and the Effectiveness of EPA - www.ombwatch.org/gpra/pew/enviro.html The Association for the Environmental Health of Soils - www.aehs.com EPA Compliance Information Project: Literature summaries - www.es.epa.gov/oeca/oppa/litsummary.pdf Legal Information Institute: Solid Waste Disposal - www4.law.cornell.edu/uscode/unframed/42/ch82.html

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This article appeared in Environmental Protection magazine, July 2000, Vol. 11, No. 7, p. 42.

This article originally appeared in the 07/01/2000 issue of Environmental Protection.

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