CHAPTER 5 APPLICATION OF THE RCRA CORRECTIVE ACTION PROGRAM TO THE NATURAL RESOURCE INDUSTRIES
Jurisdiction | United States |
(Apr 1997)
APPLICATION OF THE RCRA CORRECTIVE ACTION PROGRAM TO THE NATURAL RESOURCE INDUSTRIES
Harding Lawson Associates
Denver, Colorado
I. INTRODUCTION
A. Overview
Corrective action refers to a wide range of technical/institutional activities that identify, evaluate, and remedy risks to human health and the environment from releases of hazardous waste and hazardous waste constituents. The corrective action program is a cleanup program that responds to releases to the environment associated with Resource Conservation and Recovery Act (RCRA)1 regulated facilities. Corrective action requirements apply at hazardous waste treatment, storage, and disposal facilities (TSDFs), which include permitted facilities and facilities that have, have had, or should have had RCRA interim status. Corrective action may be required for releases of hazardous waste or hazardous constituents from these facilities to protect human health and the environment. This outline discusses the statutory/regulatory authorities and technical requirements of the federal RCRA corrective action process.
B. Statutory and Regulatory History
RCRA, enacted in 1976 as an amendment2 to the Solid Waste Disposal Act of 1965, provides the primary regulatory framework for hazardous waste management. The U.S. Environmental Protection Agency (EPA) enforces the corrective action program principally through the statutory authorities established in the 1984 amendments to RCRA, known as the Hazardous and Solid Waste Amendments of 1984 (HSWA).3 There are minimal regulatory requirements at present, but EPA is currently in the process of promulgating a comprehensive
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corrective action program. The statutory/regulatory history of the federal corrective action program is presented below.
1. Pre-1984
Prior to HSWA's enactment, EPA had limited authority to require remediation or corrective action at facilities regulated under RCRA.
• Statutory authority was limited to Section 7003 4 that gives EPA authority to take action when solid or hazardous waste activities present an imminent and substantial endangerment to human health or the environment.
• Regulatory authority was limited to 40 C.F.R. Part 264, Subpart F that only addressed releases of hazardous waste from regulated hazardous waste management units 5 into the uppermost aquifer.
2. Hazardous and Solid Waste Amendments of 1984
In HSWA, Congress directed EPA to require corrective action for all releases of hazardous waste and hazardous constituents from solid waste management units (SWMUs) at facilities seeking RCRA permits (i.e., TSDFs) regardless of the time at which waste was placed in the units. HSWA added statutory provisions to RCRA that gave EPA substantial statutory authority to develop a broader corrective action program. These provisions included:
• Section 3008(h) 6 — authority to require corrective action at interim status facilities;
• Section 3004(u) 7 — authority to require corrective action as a condition of a TSDF's Part B permit; and
• Section 3004(v) 8 — authority to require corrective action for releases migrating beyond the TSDF boundary.
The 1984 HSWA amendments extended corrective action authority at TSDFs to all waste management units that received solid or hazardous waste at any time. In the legislative history of RCRA Section 3004(u), Congress noted that one purpose of the new corrective action requirements was to ensure that RCRA facilities did not become Superfund sites.9
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3. EPA Rulemakings
RCRA corrective action program is currently implemented through statutory authorities and EPA guidance. EPA has issued a proposed rule that establishes a comprehensive regulatory framework for implementing the corrective action program.10 This proposed rule and other Agency guidance are used to structure corrective action requirements in facility permits and orders. The following sections provide a chronology of EPA rulemakings for the corrective action process.
a) First Codification Rule (1985)
In July 1985,11 EPA codified the HSWA corrective action requirements.12 These regulations reiterate the statutory language of RCRA Section 3004(u) by requiring facility owners/operators seeking RCRA permits to institute corrective action, as necessary to protect human health and the environment, for all releases of hazardous waste and constituents from SWMUs at the facility. When corrective action cannot be completed prior to permitting, EPA requires that permits contain corrective action requirements, schedules of compliance, and financial assurance. EPA also clarified that corrective action is required for some facilities with RCRA permits-by-rule, including hazardous waste management facilities with permits issued under the Underground Injection Control (UIC) program and the National Pollution Discharge Elimination System (NPDES) permitting program.13
b) Second Codification Rule (1987)
In December 1987, EPA promulgated additional corrective action regulations to codify the statutory language of RCRA Section 3004(v), requiring corrective action for releases beyond the facility boundary.14 EPA also established permit application requirements necessary to support corrective action implementation, and modified the corrective action requirements for UIC wells with RCRA permits-by-rule.
c) Proposed Subpart S Rule (1990)
In July 1990, EPA proposed detailed regulations to 40 C.F.R., Part 264, Subpart S for conducting the RCRA corrective action
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program.15 The 1990 proposal was designed as an analogue to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) program's National Oil and Hazardous Substances Pollution Contingency Plan (NCP). As such, it addressed both technical (e.g., cleanup levels, remedy selection, and points of compliance) and procedural (e.g., definitions, permitting, and reporting) elements of the corrective action program. EPA finalized only a few portions of the proposal. However, the Agency continues to use the proposed rule as guidance.16
d) CAMU Rule (1993)
Regulators and facility owners/operators have long recognized that RCRA hazardous waste requirements complicate and delay cleanups when applied to wastes generated as part of corrective action. To address this problem, EPA promulgated regulations for temporary units (TUs) and corrective action management units (CAMUs).17 The CAMU rule provides relief from specific RCRA standards that can preclude desirable remediation options or unnecessarily add to the cost of remedies (e.g., the RCRA land disposal restrictions [LDRs]). The rule created two new RCRA units and defined a new waste category; remediation waste.
The CAMU rule was challenged in 1993 by several industry and environmental groups. However, the challenge has been stayed pending publication of the final Hazardous Waste Identification Rule for Contaminated Media (HWIR-Media). EPA proposed the HWIR-Media Rule in April 1996 to regulate hazardous waste contained in environmental media (e.g., soil, sediment, groundwater, and surface water).18 The HWIR-Media rule, as proposed, withdraws the CAMU regulations. However, until that rule becomes final, CAMUs may be used to support efficient and protective cleanups.
e) Advanced Notice of Proposed Rulemaking (1996)
In an effort to reevaluate the corrective action program, EPA published an advance notice of proposed rulemaking (ANPR) to introduce its strategy for promulgation of corrective action regulations, and to expand on its philosophy and priorities.19 The ANPR is intended to open a dialogue with the regulated
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community on ways to make the corrective action process shorter and cost-effective; to create more consistent, less compartmentalized cleanups; to establish protective but "common sense" cleanup expectations; and to shift more responsibility for compliance to states and the regulated community. The notice gives the regulated community direction and guidance on the current corrective action polices, the status of the corrective action process to other rulemaking efforts (e.g., HWIR), state authorization revisions, and administrative improvements and reforms under Superfund.
EPA presented the following principles to guide corrective action implementation and program development until the regulations are finalized:20
• Corrective action decisions should be based on risk;
• Corrective action implementation should focus on results rather than process;
• Interim actions and stabilization should be used to reduce risks and prevent exposures;
• Corrective action activities should be phased to focus resources on areas or pathways of highest concern;
• Corrective action implementation should provide for meaningful inclusion of all stakeholders;
• Corrective action requirements should be addressed using the most appropriate authority, including state authorities, for any given facility; and
• States will be the primary implementors of the corrective action program.
EPA expects to re-propose a comprehensive corrective action program in 1997, and finalize the regulations in late 1998. Until that time, EPA has stated that the ANPR will be considered the "primary corrective action implementation guidance."21
C. EPA Guidance Documents
EPA has issued a number of guidance documents over the years relating to RCRA corrective action. Following is a list of the more useful documents.
• RCRA Permit Policy Compendium, EPA/530-R-038A (1996).
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• National RCRA Corrective Action Strategy, 51 Fed. Reg. 37608 (October 1986).
• RCRA Corrective Action Plan, Interim Final, EPA/530-SW-88-028, OSWER Dir. 9902.3 (May 1988).
• RCRA Corrective Action Plan, Final, OSWER Dir. 9902.3-2A (May 1994).
• RCRA Facility Assessment Guidance, Final, PB87-107769 (October 1986).
• RCRA Facility...
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