[Federal Register: February 25, 2003 (Volume 68, Number 37)]
[Notices]
[Page 8757-8764]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25fe03-47]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7454-7]
Final Guidance on Completion of Corrective Action Activities at
RCRA Facilities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: The purpose of this notice is to provide the newly issued
``Guidance on Completion of Corrective Action Activities at RCRA
Facilities'' memorandum to regulators and to the regulated community.
The memorandum provides the EPA Regions, the States, Tribes, the
regulated community, members of the public, and other stakeholders with
guidance on significant issues related to completion of corrective
action activities at RCRA facilities. It provides guidance on when each
type of completion determination is appropriate. It also discusses
completion determinations for less than an entire facility. Finally, it
provides guidance on procedures for EPA and the authorized States when
making completion determinations.
DATES: This guidance was issued February 13, 2003.
ADDRESSES: For more detailed information on specific aspects of the
guidance document, contact Barbara Foster, Office of Solid Waste 5303W,
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW.,
Washington, DC 20460, (703-308-7057), (foster.barbara@epa.gov), or
Peter Neves, Office of Site Remediation Enforcement 2273A, U.S.
Environmental Protection Agency, 1200 Pennsylvania Avenue NW.,
Washington, DC 20460 (202-564-6072) (neves.peter@epa.gov).
SUPPLEMENTARY INFORMATION: EPA has established an official public
docket for this action under Docket ID No. RCRA-2001-0004. The official
public docket is the collection of materials that is available for
public viewing at the OSWER Docket in the EPA Docket Center, (EPA/DC)
EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The
EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is (202) 566-1744, and the telephone
number for the Docket is (202) 566-0270.
You may access this Federal Register document electronically
through the EPA Internet under the Federal Register listings at http://
www.epa.gov/fedrgstr/.
An electronic version of the public docket is
www.epa.gov/fedrgstr/. An electronic version of the public docket is
available through EPA's electronic public docket and comment system,
EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to
EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to
view public comments, access the index listing of the contents of the
official public docket, and to access those documents in the public
docket that are available electronically. Although not all docket
materials may be available electronically, you may still access any of
the publicly available docket materials through the docket facility
identified above. Once in the system, select ``search,'' then key in
the appropriate docket identification number.
The guidance document, which is published below, was issued as a
memorandum from EPA headquarters to the Regional offices. If you would
like to receive a hard copy, please call the RCRA Call Center at 800-
424-0346 or TDD 800-553-7672 (hearing impaired). In the Washington, DC,
metropolitan area, call 703-412-9810 or TDD 703-412-3323. Additional
information about RCRA corrective action is available on the Internet
at: http://www.epa.gov/correctiveaction.
at: http://www.epa.gov/correctiveaction.
Background
On October 2, 2001, EPA published a notice in the Federal Register
requesting comment on a draft guidance document entitled ``Recognizing
Completion of Corrective Action Activities at RCRA Facilities'' (see 66
FR 50195). Comments received by the Agency on that draft guidance
largely supported the content, but expressed concern that the Agency
needed to expand the scope of the guidance, for example, to address
when and under what circumstances decisions that corrective action is
complete should be made.
On February 27, 2002, the Agency published a second draft guidance
in the Federal Register (see 67 FR 9174), which included most elements
of the first draft, but was expanded to discuss two types of corrective
action completion determinations. The Agency again solicited comment on
the guidance.
Generally, commenters on the February 27 draft guidance supported
the Agency's effort (and some supported all or part of the Agency's
approach) to develop guidance related to completion of corrective
action. However, some commenters raised concerns about aspects of the
guidance, with many commenters offering suggestions for revising the
guidance. The Agency modified the draft guidance in response to
comments received, and the resulting final ``Guidance on Completion of
Corrective Action Activities at RCRA Facilities'' memorandum is
published below in this Federal Register notice.
Discussion of Public Comment
Comments Related to the Definition of Completion
In the February 27, 2002 Federal Register notice, the Agency
described two types of completion of corrective action. For both types,
all of the following have been satisfied: (1) A full set of corrective
measures is defined; (2) the facility has completed construction and
installation of all required remedial actions; (3) site-specific media
cleanup objectives, which were selected based on current and reasonably
expected future land use, and maximum beneficial groundwater use, have
been met.
A Corrective Action Complete without Controls \1\ means that these
objectives have been met, and the areas subject to the determination do
not require any additional action or measures to ensure the remedy
remains protective of human health and the environment. For Corrective
Action Complete with Controls, all that remains is performance of
required operation and maintenance and monitoring actions, and/or
compliance with and
[[Page 8758]]
maintenance of any institutional controls.
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\1\ In the February 27, 2002 Federal Register notice, this form
of completion was referred to as Corrective Action Complete. The
Agency added ``without controls'' in this final guidance to more
clearly reflect that this is a form of completion (see discussion of
comments below).
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The Agency received many comments on those two types of completion.
While commenters generally agreed with the two types of completion,
there was widespread concern among the commenters that they would not
be useful for many facilities. Commenters believed that Corrective
Action Complete (without controls), as described, may never be achieved
by some facilities, and that Corrective Action Complete with Controls,
because of the third criterion (that final remedy cleanup objectives
have been met) would not be attainable by many facilities within a
reasonable timeframe, particularly in the case of restoration of
contaminated groundwater. Commenters expressed the need for a formal
and public recognition of progress that could be achieved within a
reasonable timeframe. Some requested that the Agency modify the
definition of Corrective Action Complete with Controls to remove the
criteria that cleanup objectives be met to provide a measure that can
be achieved within a timeframe that is reasonable. Others suggested
that the Agency establish a provisional type of corrective action
complete designation.
The Agency recognizes that in carrying out an extensive and complex
corrective action a facility can achieve several significant
milestones, and recently described in detail a strategy for RCRA
corrective action that includes short-term protection goals,
intermediate performance goals, and final cleanup goals (see Handbook
of Groundwater Protection and Cleanup Policies for RCRA Corrective
Action, September, 2001, Sections 1.2-1.3, (http://www.epa.gov/
epaoswer/hazwaste/ca
), and Environmental Indicator Guidance, February,
1999, (http://www.epa.gov/epaoswer/hazwaste/ca/eis)).
1999, (http://www.epa.gov/epaoswer/hazwaste/ca/eis)).
This final guidance was not designed to guide regulators in
recognizing progress at facilities where short-term protection goals or
intermediate performance goals have been achieved. Rather, it was
designed to recommend steps that regulators might take where the site-
specific media cleanup objectives, identified based on the current and
reasonably anticipated use of the site, have been met.
The Agency continues to believe that it is important to distinguish
between situations where significant progress has been made toward
final cleanup, and situations where corrective action is actually
complete. The Agency believes that a ``completion'' determination
signals to all parties involved that corrective action activities no
longer are necessary (though controls to ensure the remedy remains
protective may be necessary), and thus are preferably reserved for
situations where there is no further cleanup activity to conduct--
regardless of how long it might take to achieve site-specific media
cleanup objectives. The Agency is concerned that making ``completion''
determinations at facilities that have not yet achieved final cleanup
goals would jeopardize the integrity of that distinction, potentially
be misleading, and minimize the accomplishment of facilities that truly
have completed corrective action.
At the same time, the Agency recognizes that the commenters raised
a valid concern--that owners and operators often need a formal
recognition of progress at a landmark that can be achieved within a
reasonable timeframe. Rather than encourage regulators to recognize
completion prematurely, however, the Agency would prefer to address
commenters' concern by formally recognizing progress at an earlier step
in the corrective action process--where remedial measures are in place
and operating, but cleanup objectives have not yet been met--in
addition to recognizing completion of corrective action. The Superfund
program makes ``Construction Complete'' designations at this point in
its cleanups; EPA believes it is appropriate to recognize the analogous
stage in RCRA corrective action as well. At that point in the cleanup
process, while remedial measures continue to be implemented, final
remedial decisions have been made and, at some facilities,
environmental and human health risks may have been controlled such that
the facility is ready for reuse. In recognition of the valid concerns
raised by commenters, the Agency plans to investigate, in another
forum, how it might formally and publicly recognize an earlier
milestone in the corrective action process, analogous to Superfund's
``construction complete.'' \2\
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\2\ One likely forum is the ``One Cleanup Program'' initiative
currently under development by the Agency. As part of that
initiative, the Agency is examining ways to promote consistency,
where appropriate, among all of its cleanup programs.
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Some commenters were concerned that, because the criteria discussed
in the draft guidance for ``Corrective Action Complete with Controls''
determinations included achievement of site-specific media cleanup
objectives, which were selected based on current and reasonably
expected future land use and maximum beneficial groundwater use, the
guidance would be interpreted to mean that groundwater would be
restored to drinking water standards in all cases. The Agency disagrees
with that interpretation of the draft guidance, and believes that
interpretation is inconsistent with the September, 2001 Handbook of
Groundwater Protection and Cleanup Policies for RCRA Corrective Action,
which is the Agency's most current guidance on groundwater issues
related to RCRA corrective action. However, the Agency removed
references to ``maximum beneficial use of groundwater'' from this final
guidance for two other reasons. First, the draft guidance did not
discuss cleanup standards for all media--in fact, the discussion was
limited to groundwater. The Agency did not intend this guidance to
address the issue of cleanup standards for the various media addressed
through corrective action, and saw no reason to single out groundwater
for discussion. Second, the Agency was concerned that provisions of the
Groundwater Handbook when discussed in this guidance might be
interpreted differently than they would within the context of the
handbook itself. The September, 2001 Groundwater Handbook represents
current Agency guidance on groundwater issues for the corrective action
program, and EPA does not intend for this final Completion Guidance to
address, or modify its guidance on, groundwater issues. The Agency is
exploring a cross-program ``Ground Water Working Group,'' \3\ as a
forum to identify and discuss groundwater issues of importance to
multiple EPA programs, and to develop options for addressing those
issues.\4\
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\3\ See memorandum dated September 18, 2002 from Michael B. Cook
to EPA Addressees entitled ``Cross-Program Ground Water Working
Group.''
\4\ It should be noted that the Agency also removed language
regarding land use from the description of corrective action
complete with controls. Again, EPA simply removed the language
because the Agency is not discussing media cleanup standards in this
guidance. For a discussion of reasonably foreseeable land use, see
Reuse Assessments: A Tool to Implement the Superfund Land Use
Directive, June 4, 2001, OSWER Directive 9355.7-06p.
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Finally, some commenters were concerned that Corrective Action
Complete with Controls would be considered a stepping stone toward
Corrective Action Complete without Controls, rather than a form of
completion in and of itself. Commenters requested that the Agency
clarify that Corrective Action Complete with Controls is a form of
completion. The Agency agrees with commenters that Corrective Action
Complete with Controls is a form of completion, and
[[Page 8759]]
not a stepping stone toward Corrective Action Complete without
Controls. For example, EPA recognizes that a final remedy that involves
the use of institutional controls to maintain protection of human
health and the environment is, nonetheless, a final remedy. EPA
believes that owners and operators should be able to implement a final
remedy, including one that involves institutional controls, with
assurance that the Agency generally will not require additional
corrective action at a later date so long as the controls, which help
assure protection of human health and the environment, are effective.
It should be noted, however, that in the case of a Corrective
Action Complete with Controls determination, protection of human health
and the environment is dependent upon the maintenance of the controls.
Should the controls fail, a risk to human health and/or the environment
might require additional action. That action might include different or
additional controls, or it might involve additional cleanup. This does
not mean that the Agency intends to revisit Corrective Action Complete
with Controls determinations for the purpose of achieving Corrective
Action Complete without Controls determinations. Rather, the Agency
expects final remedies to be effective not just at the moment that the
completion determination is made, but in the long-term as well.
In addition, the Agency anticipates that there may be circumstances
where an owner or operator of a facility that has received a Corrective
Action Complete with Controls determination may choose in the future to
conduct additional cleanup and obtain a Corrective Action Complete
without Controls determination. For example, if a remedy included a
restriction that the property be used only for industrial purposes, and
the owner or operator were to decide to convert the property to
residential use, additional cleanup would likely be necessary. Or, an
owner or operator might choose to conduct additional cleanup and return
the property to unrestricted use in order to end the responsibility for
maintaining controls at the facility. However, under these examples,
the decision to conduct additional corrective action would be that of
the owner or operator.
In response to commenters' concerns described above, the Agency
made two modifications to the guidance. In the February 27, 2002
Federal Register notice, the two types of completion were designated
``Corrective Action Complete'' and ``Corrective Action Complete with
Controls.'' The Agency modified the terms used to refer to the two
types of completion by adding ``without Controls'' to ``Corrective
Action Complete.'' The Agency believes that the resulting two
designations--Corrective Action Complete without Controls and
Corrective Action Complete with Controls--more clearly reflect that
both are forms of completion. The Agency also added language to the
guidance to clarify that Corrective Action Complete with Controls is,
in and of itself, a form of completion, and not a stepping stone toward
Corrective Action Complete without Controls.
One additional modification to the definition of Corrective Action
Complete with Controls should be noted. In the February 27, 2002
Federal Register notice, the fourth factor for a Corrective Action
Complete with Controls determination stated ``all that remains is * * *
compliance with and implementation of any institutional controls.'' In
this final guidance, the Agency changed ``implementation'' to
``maintenance'' in this phrase. The Agency made this change to avoid an
interpretation that ``implementation'' includes actions related to
getting institutional controls in place, such as selection or securing
institutional controls. ``Maintenance,'' more clearly conveys that the
phrase ``Corrective Action Complete with Controls'' means that the
appropriate controls are in place.
Comments Related to Procedures for Completion Determinations
The draft guidance published in both the October 2, 2001 and the
February 27, 2002 Federal Register notices suggested procedures for
making completion determinations at permitted and non-permitted
facilities. Generally commenters agreed with those procedures, and they
are included in this guidance. However, commenters expressed concerns
about language in the guidance related to permit modifications. The
draft guidance suggested that at permitted facilities, Class 3 permit
modification procedures generally would be appropriate for modifying a
permit to recognize a completion determination. Commenters on the
October 2, 2001 Federal Register notice suggested that, in many cases,
a Class 1 procedure would be appropriate. The Agency added language (in
a footnote) to the draft guidance in the February 27, 2002 notice to
recognize that, in some cases, Class 3 procedures might not be
necessary (see 67 FR 9174 at 9177). However, commenters on the February
27, 2002 notice repeated the same concerns that the guidance suggested
that Class 3 procedures were appropriate for recognizing completion and
that those procedures would be unduly burdensome.
The Agency believes that when it recognizes completion of
corrective action at a facility, it is taking a step that is
significant not only to the facility, but to the local community as
well. Thus, the Agency believes it is important that the community have
an opportunity to be involved in the Agency's decision. The Agency
agreed with commenters that there may be circumstances where Class 3
procedures might be burdensome and reap little benefit, and recognized
those situations in the February 27, 2002 draft completion guidance.
However, the Agency continues to believe that Class 3 procedures will
be appropriate procedures for recognizing completion determinations at
most facilities.
To address commenters concerns, the Agency has emphasized in this
guidance that Class 3 procedures might not be appropriate in all
situations by strengthening that discussion and moving it to the text
of the guidance from the footnote.
Completion Determinations for Portions of a Facility
In the February 27, 2002 draft guidance, the Agency discussed
making completion determinations for a portion of a facility. There was
widespread support among commenters for recognizing completion
determinations for a portion of a facility, and this final guidance
retains that discussion. At the same time, the Agency recognizes that
the discussion in this guidance addresses only a few of the issues
related to parceling of RCRA facilities. The Agency agrees with the
commenter who accurately pointed out that by supporting completion
determinations for portions of a facility under the circumstances
described in this guidance, the Agency has taken the first step toward
addressing related issues.
Methods To Implement Institutional Controls
The February 27, 2002 draft guidance discussed and requested
comment on the issue of implementation of institutional controls at
facilities that receive Corrective Action Complete with Controls
determinations. The draft guidance suggested that, in most cases, a
permit or order should be maintained following a Corrective Action
Complete with Controls determination, but noted that regulators might
find alternative methods for ensuring continued effectiveness of the
institutional controls at a facility.
[[Page 8760]]
The Agency received many comments related to implementation of
institutional controls. Commenters were not in agreement on the issue
of whether permits and/or orders should be maintained at facilities
where Corrective Action Complete with Controls determinations are made,
or, more broadly, on more effective methods for implementing
institutional controls.
After reviewing comments, the Agency generally believes that the
approach it took in the draft guidance is appropriate, although the
Agency is also interested in exploring and evaluating alternative
methods for the continued effectiveness of institutional controls at a
facility. The Agency recognizes that effective implementation of
institutional controls is vital to continued protection of human health
and the environment following a Corrective Action Complete with
Controls determination at RCRA facilities (and at facilities where
cleanup is conducted under other programs, such as Superfund) where the
remedy depends upon institutional controls, and continues to explore
the complex issues related to institutional controls. However, the
Agency did not attempt to address those complex issues in this
guidance.
The Agency continues to focus attention on the evolving and complex
issues associated with institutional controls. In the near future EPA
will finalize a cross-program guidance entitled, ``Institutional
Controls: A Guide to Implementing, Monitoring, and Enforcing
Institutional Controls at Superfund and RCRA Corrective Action
Cleanups'' that will serve as a companion to guidance issued in 2000
entitled ``Institutional Controls: A Site Manager's Guide to
Identifying, Evaluating, and Selecting Institutional Controls at
Superfund and RCRA Corrective Action Cleanups,'' September 2000, OSWER
Directive 9355.0-74FS-P. Additionally, the Agency is currently at work
developing a national institutional control tracking system; supporting
the development of a model state institutional control law; and
evaluating the need for guidance on estimating institutional control
costs, institutional control implementation plans, and ensuring
compliance with institutional controls.
Comments Not Addressed in This Federal Register Notice
The final guidance published in this Federal Register notice
describes two types of completion of corrective action, and suggests
processes for recognizing completion. The comments discussed above were
directly related to the issues discussed in the guidance. The Agency
recognizes that completion of corrective action raises many issues for
regulators and for owners and operators, including issues related to
transfer of RCRA facilities (or portions of facilities), sometimes
referred to as ``parceling,'' financial assurance, and institutional
controls. In addition, completion of corrective action at some
facilities, such as Federal Facilities, may present unique issues. EPA
received comments on these related issues as part of the comment it
received on the October 2, 2001 and February 27, 2002 draft guidances.
The Agency reviewed all of those comments, but those that were not
directly related to issues discussed in the draft guidance documents
are not addressed in this notice.
EPA believes that, because of the multitude and complexity of the
issues related to completion of corrective action, the best approach to
these issues is to make continuous incremental progress in addressing
them. Using this approach, the Agency has limited the scope of the
discussion in this final guidance, but hopes that it has opened
dialogue on, and will establish a foundation for, some of the broader
issues related to completion of corrective action, to be addressed at a
later time. The Agency encourages commenters to continue to provide
input on these important issues as they are addressed.
Dated: February 13, 2003.
Robert Springer,
Director, Office of Solid Waste.
Dated: February 12, 2003.
Susan E. Bromm,
Director, Office of Site Remediation Enforcement.
Memorandum
Subject: Guidance on Completion of Corrective Action Activities at
RCRA Facilities.
From: Robert Springer, Director, Office of Solid Waste; Susan E.
Bromm, Director, Office of Site Remediation Enforcement.
To: RCRA Division Directors, Regions I-X, Enforcement Division
Directors, Regions I-X, Regional Counsel.
Introduction
This memorandum provides guidance to the Regions and authorized
States on acknowledging completion of corrective action activities at
RCRA treatment, storage, and disposal facilities. It describes two
types of completion determinations--``Corrective Action Complete
without Controls'' and ``Corrective Action Complete with Controls.'' It
provides guidance on when each type of completion determination is
appropriate. It also discusses completion determinations for less than
an entire facility. Finally, it provides guidance on procedures for EPA
and the authorized States when making completion determinations.
This document provides guidance to EPA Regional and State
corrective action authorities, as well as to facility owner or
operators and the general public on how EPA intends to exercise its
discretion in implementing the statutory and regulatory provisions that
concern RCRA corrective action. The RCRA statutory provisions and EPA
regulations described in this document contain legally binding
requirements. This document does not substitute for those provisions or
regulations, nor is it a regulation itself. Thus, it does not impose
legally-binding requirements on EPA, States, or the regulated
community, and may not apply to a particular situation based upon the
circumstances. EPA and State decisionmakers retain the discretion to
adopt approaches on a case-by-case basis that differ from this guidance
where appropriate. Any decisions regarding a particular facility will
be made based on the applicable statutes and regulations. Therefore,
interested parties are free to raise questions and objections about the
substance of this guidance, and the appropriateness of the application
of this guidance to a particular situation. EPA will consider whether
or not the recommendations or interpretations in the guidance are
appropriate in that situation. The Agency welcomes public comment on
this document at any time, and will consider those comments in any
future revision of this guidance document.
Background
EPA recognizes the importance of an official acknowledgment that
corrective action activities have been completed. An official
completion determination, made through appropriate procedures, benefits
the owner or operator of a facility, the regulatory agency implementing
the corrective action program, and the public. Official recognition
that corrective action activities are complete can, among other things,
promote transfer of ownership of the property and, in some cases, can
help return previously used commercial and industrial properties, such
as ``brownfields,'' to productive use. Further, once the regulatory
agency implementing corrective action makes a determination that
corrective action activities are complete, it can focus agency
resources on other facilities. Finally, if completion determinations
[[Page 8761]]
are made through a process that provides adequate public involvement,
the process of making a formal completion determination will assure the
public an opportunity to review and comment on the cleanup activities,
and to pursue available administrative and/or judicial challenges to
the agency's decision.\5\
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\5\ The Agency anticipates that at facilities where meaningful
public involvement begins early in the corrective action process,
challenges are less likely at the end of the process.
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Under 40 CFR section 264.101, owners and operators seeking a permit
for the treatment, storage or disposal of hazardous waste must conduct
corrective action ``as necessary to protect human health and the
environment.'' \6\ The ultimate goal of corrective action is to satisfy
the ``protection of human health and the environment'' standard. Thus,
a determination by EPA (or a State authorized by EPA to implement the
Corrective Action Program) that corrective action activities are
complete is, in effect, an announcement that the ``protection of human
health and the environment'' standard has been achieved.\7\
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\6\ Likewise, section 3008(h) establishes a standard of
``protection of human health and the environment'' for corrective
action imposed through orders. This guidance is equally applicable
at facilities where EPA addresses facility-wide corrective action
through an enforcement authority, rather than a permit.
\7\ Note that for facilities that continue to require a permit
for the treatment, storage, or disposal of hazardous waste, a
completion determination in no way affects the ongoing requirement
to conduct corrective action for any future releases at the
facility, and the Agency recommends that any completion
determinations at such facilities be structured to make this clear.
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With experience, the Agency has discovered that the universe of
facilities subject to corrective action requirements includes
facilities that vary widely in complexity, extent of contamination, and
level of risk presented at the facility. To address this wide variation
among corrective action facilities, the Agency has developed multiple
approaches to achieving ``protection of human health and the
environment.''
When conducting corrective action, however, one of the key
distinctions among remedies is the extent to which they rely upon
controls (engineering and/or institutional) \8\ to ensure that they
remain protective. In some cases, the Agency selects a remedy that
requires treatment and/or removal of waste and all contaminated media
to levels that allow the facility to be used in an unrestricted
manner.\9\ At these facilities, no additional oversight or activity is
required following cleanup. When implementation of the remedy is
completed successfully, protection of human health and the environment
is achieved.
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\8\ EPA has defined institutional controls as ``non-engineered
instruments such as administrative and/or legal controls that
minimize the potential for human exposure to contamination by
limiting land or resource use.'' They are almost always used in
conjunction with, or as a supplement to, other measures such as
waste treatment or containment. There are four general categories of
institutional controls: Government controls; proprietary controls;
enforcement tools; and information devices. (See Fact Sheet entitled
``Institutional Controls: A Site Managers Guide to Identifying,
Evaluating, and Selecting Institutional Controls at Superfund and
RCRA Corrective Action Cleanups,'' September 2000, OSWER Directive
9355.0-74FS-P).
\9\ ``Unrestricted use'' refers to a walk-away situation, where
no further activity or controls are necessary to protect human
health and the environment at the facility. Generally, a cleanup of
soil to residential standards and of groundwater to drinking water
standards would be an example of an unrestricted use scenario. By
comparison, a cleanup of soil to industrial soil levels, and/or
containment or cleanup of groundwater to levels in excess of
drinking water standards usually would not be an unrestricted use
scenario. Under both scenarios, the Agency does not generally
anticipate having to impose additional corrective action
requirements because the remedy is protective of human health and
the environment. The difference is that, under the second scenario,
protection of human health and the environment is dependent on the
maintenance of the remedy, including institutional controls.
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In other cases, the Agency selects a remedy that allows
contamination to remain on site, but imposes ongoing obligations
concerning, for example, operation and maintenance of engineered
controls (e.g., a landfill cap), and compliance with institutional
controls (e.g., a restriction that land be used for industrial purposes
only). Thus, in these situations, the goal of ``protection of human
health and the environment'' often is achieved through use of a remedy
(e.g., containment) that allows some contamination to remain in place,
but requires controls (engineering and/or institutional) at the
facility to prevent or to limit the risk of exposure through release of
contamination that remains following cleanup. Following remedy
implementation, maintenance of controls and continued corrective action
related activities (such as monitoring) at such facilities are
fundamental elements of meeting the standard of ``protection of human
health and the environment.'' \10\
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\10\ It should be noted that, at these facilities, cleanup to
unrestricted use levels and a Corrective Action Complete without
Controls determinations (see discussion below in section 2)
ultimately could be achieved under a variety of scenarios--for
example, the plan for land use at a facility might change; the owner
or operator might decide to return the site to unrestricted use, or
the facility might otherwise reach that state (e.g., through natural
attenuation). At that time, the Agency could discontinue the
requirement for controls.
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An example of a situation where the Agency typically chooses a
remedy that relies on controls is a facility for which the reasonably
foreseeable use is industrial.\11\ At those facilities, the Agency may
offer the facility the option to achieve long-term protection of human
health and the environment by selecting a remedy that allows higher
levels of contamination to remain at the facility, but requires the use
of controls to limit the risk of unacceptable exposure. This remedy is
considered the final remedy; however, protection of human health and
the environment at the facility typically is dependent on maintenance
of controls.
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\11\ See Reuse Assessments: A Tool to Implement the Superfund
Land Use Directive, June 4, 2001, OSWER Directive 9355.7-06p, for a
discussion of reasonably foreseeable land use.
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Types of Completion Determinations
As was discussed above, a determination by EPA that corrective
action activities are complete is a statement by the Agency that
protection of human health and the environment has been achieved at a
facility. As was also discussed above, the Agency takes different
approaches to achieving protection of human health and the environment
at facilities, depending on the site-specific circumstances. Completion
determinations benefit the owner or operator, the community, and the
regulatory agency. Therefore, EPA recommends that regulators
implementing the corrective action program make completion
determinations where corrective action activities have assured long-
term protection of human health and the environment at a facility. EPA
anticipates two types of completion determinations--Corrective Action
Complete without Controls, and Corrective Action Complete with
Controls. These two types of completion determinations, and recommended
procedures for making them, are described below.
1. Corrective Action Complete Without Controls Determination
EPA believes that it is appropriate for it, or for an authorized
State, to make a determination that Corrective Action is Complete
without Controls where the facility owner or operator has satisfied all
obligations under sections 3004(u) and (v).\12\ The Agency recommends
this terminology be used to indicate that either there was no need for
corrective action at the facility or, where corrective action was
necessary, the remedy has
[[Page 8762]]
been implemented successfully,\13\ and no further activity or controls
are necessary to protect human health and the environment.
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\12\ Or the owner or operator has completed facility-wide
corrective action, as necessary to protect human health and the
environment, imposed through a section 3008(h) order.
\13\ See (61 FR 19432, at 19432, at 19453, May 1, 19960, and (55
FR 30798, at 30837, July 27, 1990) for guidance regrading selection,
implementation, and completion of remedy.
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Under the approach described in this guidance, a determination that
Corrective Action is Complete without Controls means that no additional
remedial activity would be required on the part of the regulatory
agency or the owner or operator to maintain protection of human health
and the environment. No controls are necessary at the facility to
maintain protection of human health and the environment. Thus, the
corrective action requirements can be eliminated. It is likely that the
facility will be eligible for release from financial assurance for
corrective action, as no funds should be needed in the future for
corrective action-related activities. In addition, when there no longer
are RCRA-regulated activities at the facility, the regulatory agency
will likely have no concerns associated with transfer of the property,
nor any reason to want to be informed of, or take an action regarding,
that transfer.
2. Corrective Action Complete With Controls Determination
EPA generally believes it is appropriate to make a Corrective
Action Complete with Controls determination at a facility where: (1) A
full set of corrective measures has been defined; (2) the facility has
completed construction and installation of all required remedial
actions; (3) site-specific media cleanup objectives have been met; and
(4) all that remains is performance of required operation and
maintenance and monitoring actions, and/or compliance with and
maintenance of any institutional controls. A Corrective Action Complete
with Controls determination provides the owner or operator with
recognition that protection of human health and the environment has
been achieved, and will continue as long as the necessary operation and
maintenance actions are performed, and any institutional controls are
maintained and complied with.
It is important to ensure that an enforceable mechanism is in place
so that there is compliance with and maintenance of the controls.
Regions and States have often ensured that controls are maintained
through a RCRA permit or order at the facility in that continuation of
the permit or order assures periodic review by the regulatory agency,
compliance with any operation and maintenance requirements and
institutional controls, and notification to the regulatory agency of
transfers of the facility (which allows an opportunity for the agency
to assure that compliance with corrective action requirements will
continue).\14\ Permits and orders will continue to be used as
enforceable mechanisms to assure compliance. However, the Agency
believes that other enforceable mechanisms also may be appropriate for
implementing institutional controls. For example, several States have
passed legislation that creates mechanisms to enforce institutional
controls, a development that EPA encourages. For facilities where long-
term institutional controls are necessary to ensure continued
protection of human health and the environment, the regulator may
explore a variety of options including permits, orders, and other
enforceable mechanisms to maintain the institutional controls. In
addition, where necessary, financial assurance for corrective action
should be maintained at facilities following a Corrective Action
Complete with Controls determination.
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\14\ The September, 2000 Fact Sheet on institutional controls
discusses that, under RCRA, institutional controls typically are
imposed through permit conditions, or through orders issued under
section 3008(h) or 7003. The Fact Sheet cautions the regulator that
those mechanisms might have shortcomings, and suggests that the
regulator conduct a thorough evaluation to ensure its ability to
enforce the institutional control through the permit or order
mechanism over the entire duration that the institutional control
must remain in place. (See Institutional Controls: A Site Manager's
Guide to Identifying, Evaluating and Selecting Institutional
Controls at Superfund and RCRA Corrective Action Cleanups, EPA 540-
F-00-005, OSWER 9355.0-74FS-P, September 2000.))
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It should be noted that, at some point, many facilities that obtain
a Corrective Action Complete with Controls determination might later
obtain a Corrective Action Complete without Controls determination if
circumstances were to change. For example, the owner or operator at a
facility cleaned up to industrial levels could decide to conduct
additional cleanup because there was a desire to change land use to
unrestricted use levels, and/or because they no longer wished to
maintain controls. Should a facility later seek a Corrective Action
Complete without Controls determination, the regulatory agency should
process that determination through appropriate procedures, such as
those described below. If the Corrective Action Complete without
Controls determination were made, it would be appropriate to remove
whatever enforceable mechanism is in place, and release the facility
from financial assurance for corrective action, so long as there are no
additional RCRA activities at the facility subject to permit
requirements.
Completion Determinations for a Portion of a Facility
Regulators implementing the corrective action program often develop
a number of distinct and separate remedies to address different areas
of a facility or different media. This approach may be necessary
because a facility may include areas and media that present a range of
environmental risks. For example, an industrial facility may include
areas that may never have been used for industrial purposes or have
never been otherwise contaminated. Alternatively, a facility may have
contaminated groundwater undergoing corrective action years after the
source of contamination has been removed, and the soil cleaned up to
unrestricted use levels.
To ensure that a range of appropriate cleanup and land use options
are available to the facility owner or operator, EPA believes that the
agency should consider, when appropriate, subdividing a particular
facility for purposes of corrective action. In these situations, the
Agency might, for example, select a cleanup approach based on
unrestricted use at parts of the facility, while cleanup at other parts
of the facility may be based on the restricted use assumptions and rely
on institutional and/or engineering controls to maintain the
protectiveness of the corrective action. Alternatively, the Agency may
select a cleanup approach based on unrestricted use for the entire
facility, with some parcels requiring a longer time period to achieve
the same cleanup goals.
Under this approach, a Corrective Action Complete without Controls
determination could be made for a portion of a facility when it is
returned to unrestricted use. A Corrective Action Complete without
Controls or a Corrective Action Complete with Controls determination,
as appropriate, could be made for remaining portions of the facility
when the cleanup goals are achieved, and any necessary controls then
would be implemented under an appropriate mechanism.
In some situations, following a Corrective Action Complete without
Controls determination for a portion of a facility, the owner will sell
the portion that no longer is subject to corrective action. In these
situations, the regulator making the determination should consider the
long-term plan for the facility, and the effect of the Corrective
[[Page 8763]]
Action Complete without Controls determination and sale on financial
assurance for corrective action. The regulator should take steps to
ensure adequate financial assurance is available to address corrective
action obligations at the remainder of the facility.
Procedures for Processing Completion Determinations
Completion determinations should be made by the appropriate
authority (EPA or the authorized State implementing the corrective
action program), and made through appropriate procedures. By following
appropriate procedures, the authorized agency can make a sound, well
informed completion determination. The appropriate procedures for
processing a completion determination will depend on various factors,
including the status of the facility (permitted or non-permitted), and
on whether the determination applies to part of the facility or to the
entire facility. The following section suggests procedures that the
Agency believes generally are appropriate for completion
determinations.\15\
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\15\ EPA notes that, whether at a permitted or non-permitted
facility and regardless of the completion determination procedure
used, if EPA or the authorized State discovers unreported or
misrepresented releases subsequent to the completion determination,
this would likely be a basis to conclude that additional cleanup is
needed. And, of course, if EPA subsequently discovers a situation
that may present an imminent and substantial endangerment to human
health or the environment, EPA may elect to use its RCRA section
7003 imminent and substantial endangerment authority, or other
applicable authorities, to require additional work at the facility.
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1. Corrective Action Complete Without Controls Determinations for
Entire Facility
The regulations in 40 CFR that govern the RCRA program do not
provide explicit procedures for recognizing completion of corrective
action activities, so regulators have considerable flexibility in
developing procedures for making completion determinations. The
regulatory agency implementing the corrective action program in that
State (i.e., the authorized State program or, in unauthorized States,
EPA) should ensure that a completion determination has been made
through appropriate procedures. It is important to provide meaningful
opportunities for public participation as part of a completion
determination procedure. The Agency believes that the following,
generally, are appropriate procedures for making Completion of
Corrective Action determinations.\16\
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\16\ Of course, if a facility's permit or order provides
otherwise, these procedures would not be appropriate at that
facility.
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EPA believes that permit modification is an appropriate procedure
to reflect the agency's determination that corrective action is
complete. In cases where no other permit conditions remain, the permit
could be modified not only to reflect the completion determination, but
also to change the expiration date of the permit to allow earlier
permit expiration (see 40 CFR 270.42 (Appendix I(A)(6)).
The current regulations in 40 CFR 270.42 provide procedural
requirements for facility requested permit modifications. In most
cases, completion of corrective action is likely to be a Class 3 permit
modification, and the regulatory agency should follow those procedures
(or authorized State equivalent), including the procedures for public
involvement. It should be noted that the Agency suggests Class 3 permit
modification procedures are generally appropriate for completion
determinations. However, Class 3 procedures may not be appropriate in
all circumstances, and the regulatory agency should evaluate each
situation to determine whether a less extensive procedure would be
adequate. For example, where the regulatory agency has made extensive
efforts throughout the corrective action process to involve the public
and has received little or no interest, and the environmental problems
at the facility were limited, more tailored public participation may be
appropriate.
At non-permitted facilities where facility-wide corrective action
is complete, and all other RCRA obligations at the facility have been
satisfied, EPA or the authorized State may acknowledge completion of
corrective action by terminating interim status through final
administrative disposition of the facility's permit application (see 40
CFR 270.73(a)). To do so, the permitting authority at the facility (EPA
or the authorized State or both, depending on the authorization status
of the State) should process a final decision following the procedures
for permit denial in 40 CFR Part 124, or authorized equivalent.\17\
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\17\ Under EPA permit denial procedures in 40 CFR Part 124, EPA
must issue, based on the administrative record, a notice of intent
to deny the facility permit (see 40 CFR 124.6(b) and 124.9). The
notice must be publicly distributed, accompanied by a statement of
basis or fact sheet, and there must be an opportunity for public
comment, including an opportunity for a public hearing, on EPA's
proposed permit denial (see 40 CFR 124.7, 124.8, 124.10, 124.11, and
124.12). In making a final permit determination, EPA must respond to
any public comments (see section 124.17). Under 40 CFR 124.19, final
decisions are subject to appeal.
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EPA recognizes that referring to this decision as a ``permit
denial'' may be confusing to the public and problematic to the facility
when the facility is in compliance, is not seeking a permit, and does
not have an active permit ``application.'' Therefore, regulatory
agencies may choose to use alternate terminology (e.g., a ``no permit
necessary determination'' or ``cleanup obligations satisfied'') to
refer to this decision, though it is issued through the permit denial
process or authorized equivalent. Regardless of the terminology used,
the basis for the decision should be stated clearly, generally that:
(1) There are no ongoing treatment, storage, or disposal activities
that require a permit; (2) all closure and post-closure requirements
applicable at the regulated units have been fulfilled; and (3) all
corrective action obligations, including implementation of long-term
monitoring procedures, have been met.
EPA or the authorized States may develop procedures for recognizing
completion of corrective action at non-permitted facilities other than
the permit decision process described above. For example, a regulatory
agency may have procedures for issuing a notice informing the facility
and the public that the facility has met its corrective action
obligations, rather than issuing a final permit decision. Although
these procedures would not have the effect of terminating interim
status, unlike the Part 124 permit denial procedures, EPA believes they
can be appropriate for making a completion determination. In general,
EPA believes the alternative procedures should provide procedural
protections equivalent to, although not necessarily identical to, those
required by EPA's 40 CFR Part 124 requirements (or the authorized State
equivalent). Owners and operators should be aware that informal
communications regarding the current status of cleanup activities at
the facility are not the same as the completion determinations
described in this guidance.\18\
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\18\ An alternative approach would likely be appropriate to
process Completion of Corrective Action determinations that apply to
less than an entire facility (see discussion below). An alternative
approach could also be used to process a completion of corrective
action determination at a facility with ongoing RCRA activities. For
example, a facility may be conducting post-closure care at a
regulated unit under an alternate non-permit authority, as allowed
under the October 22, 1998 Post-Closure rule (see 63 FR 56710), yet
may have completed corrective action at its solid waste management
units. In this case, interim status generally should not be
terminated because all RCRA obligations have not been met, but it
may be appropriate to issue a notice (as described above)
recognizing completion of the corrective action obligations to bring
finality to that process.
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[[Page 8764]]
2. Corrective Action Complete With Controls Determinations
To process a Corrective Action Complete with Controls
determination, regulatory agencies should consider the regulatory
status of the facility, among other factors, in determining what
procedures are appropriate. For permitted facilities, following the
permit modification procedures in 40 CFR 270.42 would be appropriate.
For non-permitted facilities, the regulatory agency should generally
follow alternate procedures (e.g., issue a notice with an opportunity
to comment) that provide procedural protections equivalent to, although
not necessarily identical to, those required by Part 124 requirements
(or the authorized State equivalent). However, following procedures
other than the Part 124 procedures does not terminate interim status
even though they may result in a Complete with Controls determination.
Interim status should not be terminated at a RCRA facility where
corrective action requirements remain. If corrective action was
implemented through an order, the regulator should not eliminate the
order until the facility meets all corrective action obligations
required under the order.
As was discussed above, at facilities (permitted or non-permitted)
where a Corrective Action Complete with Controls determination is made,
and long-term institutional controls are necessary to continued
protection of human health and the environment, the regulator may
explore a variety of options including permits, orders, and other
enforceable mechanisms to maintain the institutional control where
appropriate.
3. Corrective Action Complete Without Controls Determinations for Less
Than the Entire Facility
As was discussed above, EPA or the authorized State could make a
Corrective Action Complete without Controls determination for a portion
of a facility where corrective action obligations remain at the
remaining portion. Where the regulatory agency determines that a
Corrective Action Complete without Controls decision is appropriate for
a portion of the facility, it should process that decision using
procedures that will not affect portions of the facility where
corrective action requirements remain.
For example, at a permitted facility, the agency might process a
Corrective Action Completion determination for a portion of the
facility by modifying the permit following the procedures in 40 CFR
270.42. The agency should not eliminate the permit, however, if
corrective action responsibilities (and possibly other RCRA
responsibilities) remain at the facility.
At non-permitted facilities, the Agency or authorized State might
utilize alternate procedures as described above (e.g., issue a notice)
to process the Corrective Action Completion determination for a portion
of the facility. Those procedures should generally provide procedural
protections equivalent to, although not necessarily identical to, those
required by Part 124 requirements (or the authorized State equivalent).
However, interim status is not terminated by such procedures and
generally should not be terminated at a facility where RCRA obligations
remain. If the corrective action was implemented through an order, it
is important to maintain the order until the facility satisfies all
corrective action obligations and ensures that institutional controls
will be maintained.
FOR FURTHER INFORMATION CONTACT: For further information on completion
of corrective action, please contact Barbara Foster at 703-308-7057 or
Peter Neves at 202-564-6072. For information regarding the application
of this guidance to a particular facility, please contact your local
Regional or State office.
[FR Doc. 03-4380 Filed 2-24-03; 8:45 am]
BILLING CODE 6560-50-P