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On February 25, 2003, EPA issued its “Final Guidance on Completion of Corrective Action Activities at RCRA Facilities” ( See 68 FR 8757 et seq.). In this document EPA gives specific answers to certain important questions about when and in what manner areas regulated by the ResourceConservation and Recovery Act (RCRA) can be finally closed. It provides some specific tools of use and comfort to future property developers and otherwise clarifies procedures. This article provides some background on “corrective action,” a review of the Final Guidance, and comment on the Guidance and the future of RCRA reform. BACKGROUND With its creation of RCRA’s “cradle-to-grave” system of hazardous waste management, Congress and the EPA embarked upon an ambitious program to manage and reduce the volume of hazardous wastes created by American industry and commercial establishments. Almost two decades after the HSWA amendments, which were in part designed to provide enforcement muscle to the program, the EPA is beset with a difficult knot of regulatory requirements that resists untangling with a force all their own. Advising companies that need to address releases from RCRA treatment, storage and disposal facilities involves coping with RCRA’s “corrective action” requirements under Sections 3008(u) and 3008(v) of RCRA, which give EPA or authorized states authority to require corrective action for releases from TSDFs and off-property releases. Dealing with questions posed by such releases of hazardous waste and constituents has been either very complex or relatively easy, depending on whether you want to understand and strictly apply all applicable rules (the complex approach) or you want to accomplish efficient and adequate cleanup to protect the public health and the environment (the easier approach). Either approach demands a high level of tolerance of governmental second-guessing and delay. EPA is taking a number of steps to try to accommodate the easier approach. For example, there has been a growing willingness to enter into voluntary compliance agreements. EPA also will enter into corrective action arrangements that give more freedom to permittees while retaining key parameter control. This increased flexibility is needed given the huge administrative burden that the law imposes on EPA. The Government Performance and Results Act (GPRA), passed in 1993, set targets and deadlines for prosecution of corrective action cases and requires completion of some 1,714 cases being tracked under GPRA by 2005. The 1,700-plus cases are taken from a universe of more than 5,000 sites nationwide. Congress threatens funding cuts if EPA fails to meet the established goals. In response, EPA has designated certain high priority sites, and has taken enforcement actions against some of them. Nevertheless, there have been relatively few RCRA enforcement referrals at the federal level. Although this rate of enforcement is likely due in significant part to the high number of delegated authority states (38), the prosecution of a dozen or so cases a year at the federal level begs two questions: 1) Is that all there is to enforce?, and 2) If yes, why not recognize that this implies a high degree of good faith compliance in industry as a whole. An informal unscientific review of state-lead RCRA enforcement cases shows limited activity at the state level, as well. WHAT DO THE GUIDELINES SAY? The Guidelines have designated two means of achieving a final remedy. One is “Corrective Action Complete without Controls,” and the other is “Corrective Action Complete with Controls.” The Guidance also makes it clear that the RCRA authority may declare corrective action completeness has been achieved for a portion of a facility — which the RCRA gurus in the agency are referring to as “parceling.” “Corrective Action Complete without Controls” means that a designated area has satisfied the statutory requirements for corrective action, whether imposed by a permit program or by enforcement litigation. The designation applies where “no further activity or controls are necessary to protect human health or the environment.” In other words, active controls can be discontinued since they are no longer necessary, and there is no need for institutional controls such as title or use restrictions. Generally this should also mean that release of financial assurance is appropriate. If there are no continuing RCRA regulated activities at a given site, the regulatory agency will generally be able to discontinue tracking it, at least for RCRA purposes. “Corrective Action Complete with Controls” means that a final condition that is protective of human health and the environment has been attained, provided that certain controls such as specific operation and maintenance, monitoring and use restrictions are kept in place. There is an explicit continuing need for an enforcement mechanism to be in place, but the Guidance allows a range of effective enforcement mechanisms to be utilized as appropriate, such as continuing a permit status with conditions, an enforceable order, and/or transfer notice and use restrictions. The Guidance explicitly adopts a favorable view of making completion determinations for portions of a facility even though RCRA activity or corrective action may continue at another portion. The ability to “subdivide” a facility can facilitate the sale or re-use of the completed portion. The Guidance cautions regulatory officials that they need to consider various future scenarios when they get involved in such parceling, because there could be complications arising for areas still under remediation or otherwise actively in the program due to future changes in use of the parcel where work is complete. Additionally, they are cautioned to be sure that adequate financial assurance is not lessened due to the divestiture of a parcel. I think permittees and regulators will have to distinguish carefully between future complications for the parcels remaining under the program and parcels that are deemed complete. For example, it seems that if remediation or other need for action is truly complete at a parcel, that parcel should not have continuing controls in place unless the parcel is properly designated as complete only “with Controls.” Nothing in the Guidance prohibits an owner of a facility complete “with Controls” from later seeking “Complete without Controls” designation, as may often be desirable if there are new uses desired for a given area. The Guidance indicates that there are a variety of procedures that could be used to implement it appropriately, which could vary from state to state or even parcel to parcel. The EPA expresses that its general belief is that permit modification rules and procedures will and should be followed, including treatment of the decisional process on attainment of completion as a Class 3 Permit Modification. In other words, meaningful public notice and comment opportunity should be part of the process. This is true whether the determination results from a programmatic decision for a permitted facility, or from a proposed order arising in enforcement against a non-permitted facility. It indicates that the potential for confusing terminology that could arise from strict application of permit rules should be avoided — instead of deciding “permit denied” as might be the result in an interim status situation, the decision would be better characterized as a “no permit necessary” or similar determination. When the determination sought is completeness “with Controls” or for less than all of a facility, the Guidance cautions against the termination of interim or permitted status for a facility. Similarly, designation by order in such situations should not occur without the order remaining enforceable and in effect. THE FUTURE OF CORRECTIVE ACTION One of the things the EPA explicitly indicates it did not wish to do with the Guidelines is have them dictate actual standards or remedial objectives that apply prior to attainment of completeness. The establishment of these objectives and standards remains a separate decision for the regulators. The Preamble of the Guidance expressly notes that EPA will expect that decisions on groundwater remediation, including interim and final goals, will be identified as part of the pre-completeness corrective action effort. Thus on groundwater goals, it defers to the Handbook of Groundwater Protection and Cleanup Policies for RCRA Corrective Action (the most currently was published in September 2001). Similarly, it references other directives it has issued in the past on cleanup standards in media and institutional control evaluation. Additional flexibility for carrying out on-site cleanups was introduced by EPA in early 2002, with the formal promulgation of the revised Corrective Action Management Unit (CAMU) rules. These provide for on-site management of wastes in defined areas with more focus on substantive remedial need in on-site media than on formal waste designations. There is some relaxation of land disposal restrictions and other elements in a properly approved CAMU as well. Cf. 67 FR 2961-3029 (January 22, 2002). Even though the actual remedial standards that may be applicable are not changed in this Guidance, the document effectively authorizes the RCRA authorities, be they state or federal, to actually make declarations that in some cases are long overdue. Thus while the Guidance does not really “streamline” anything, it does help eliminate the general inability to end corrective action that has become a bottleneck to the program. When coupled with the agency’s relatively recent willingness to enter into performance based consent agreements and voluntary arrangements that require less than traditional oversight and involvement from the regulators, the tools to make progress appear to be on the table. The finalization of these Guidelines is a very important step in improving the RCRA program. The Guidance’s authorization to parcelize or subdivide a site also opens up potentially very useful avenues to RCRA completeness. In some instances, creative lawyers and engineers will be able to free up portions of a facility for redevelopment that otherwise might have sat vacant for years. FURTHER RCRA PROGRAM IMPROVEMENT? The process of determining standards for soil and water cleanup in the RCRA corrective action system has become increasingly very similar in outline form to the CERCLA remedial investigation and action review system, which again is similar to the evolving “Brownfields” voluntary remediation approaches that are making risk-based decisions on need for and choice of remedial activity. The reason for this is that the systematic approach to the need for and feasibility of remedial action make common sense, and risk-based decisions are more cost effective than command and control decisions from a single playbook. The EPA needs to be bolder still in sorting out the meaningful media cleanup standards from the bureaucratic standards that can result from overly aggressive application of the concepts of the “derived from” and “mixture rules.” While such a call for more drastic RCRA corrective action reform may be unpopular with those that have the view that the less industry that survives in America the better, I think that sentencing industry to death by paperwork or perpetual treatment requirements is not the way to go where it can be shown there is no significant real world risk of harm to health or the environment. EPA should encourage the development of programs that maximize the application of resources to the situations with the most risk. EPA does try to prioritize RCRA sites, but only within the RCRA universe. Presently, RCRA and most CERCLA remedies are performed, or not, depending on the solvency and responsibility of the permittee or site operator. That could mean that a large solvent company is spending money on a relatively small risk situation, while a serious situation across the street is not addressed due to shortages of public funds. Another way to say this is that there is a qualitative difference in site-specific environmental protection and human health in the U.S. depending upon whether there is a solvent responsible party to fund a remedy. That is not fair to persons exposed, any more than it is fair to the responsible and solvent companies that are forced to spend money on those programmatic requirements that are in the end going to accomplish next to nothing. EPA still has room to further streamline and simplify the process of remedy selection and closure of affected sites under RCRA. Although constrained by elements of both the CERCLA and RCRA programs, the EPA ought to encourage the development of state-based programs that can attain substantive equivalence or even better results using risk-based and other innovative approaches to remediation when judged by measuring the full universe of sites and situations (RCRA, CERCLA and Other) within their jurisdictions that are adversely affected by contamination from hazardous wastes and substances. Harvey M. Sheldon is a Chicago-based partner of Hinshaw & Culbertson (www.hinshawlaw.com). He leads the Environmental Regulation and Litigation Practice of the firm. Mr. Sheldon is a former Regional Counsel of USEPA, and a member of the Board of Advisers of this publication. He can be contacted via e-mail at [email protected]. This article is Copyright 2003 by Harvey M. Sheldon. All Rights Reserved. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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