01-24603. Announcement of Availability and Request for Comment on “Recognizing Completion of Corrective Action Activities at RCRA Facilities” Guidance

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

The intent of this notice is to announce the availability of the “Recognizing Completion of Corrective Action Activities at RCRA Facilities” draft guidance memorandum, and invite public comment. By inviting comment, we hope to encourage greater involvement by States the regulated community, members of the public, and other stakeholders.

DATES:

Comments may be submitted until November 1, 2001.

ADDRESSES:

If you wish to comment on the draft guidance, you should send an original and two copies of your comments, referencing docket number F-2001-CCAA-FFFFF. If using regular U.S. Postal Service mail to: RCRA Docket Information Center, U.S. Environmental Protection Agency Headquarters (EPA HQ), Office of Solid Waste, Ariel Rios Building (5305G), 1200 Pennsylvania Avenue NW., Washington, DC 20460-0002. If using special delivery such as overnight express service send to: RCRA Docket Information Center (RIC), Crystal Gateway I, 1235 Jefferson Davis Highway, First Floor, Arlington, VA 22202. Hand deliveries of comments should be made to the Arlington, VA address above. You may also submit comments electronically through the internet to: [e-mail]. Comments in electronic format must also reference the docket number F-2001-CCAA-FFFFF. If you choose to submit your comments electronically, you should submit them as an ASCII file and should avoid the use of special characters and any form of encryption.

You should not submit electronically confidential business information (CBI). You must submit an original and two copies of CBI under separate cover to: RCRA CBI Document Control Officer, Office of Solid Waste, U.S. EPA, Ariel Rios Building (5303W), 1200 Pennsylvania Avenue NW, Washington DC 20460-0002.

Any public comment we receive and supporting materials will be available for viewing in the RCRA Information Center (RIC), located at Crystal Gateway I, First Floor, 1235 Jefferson Davis Highway, Arlington, VA. The RIC is open from 9 a.m. to 4 p.m., Monday through Friday, excluding federal holidays. To review docket materials, we recommend that you make an appointment by calling 703-603-9230. You may copy a maximum of 100 pages from any regulatory docket at no charge. Additional copies cost $0.15 per page. The index and some supporting materials are available electronically. See the Supplementary Information section of this Federal Register notice for information on accessing the index and these supporting materials.

The Agency is posting this document on the Corrective Action website: http://www.epa.gov/​correctiveaction. If you would like to receive a hard copy, please call the RCRA Hotline 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.

For more detailed information on specific aspects of the draft 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), ([e-mail]).

SUPPLEMENTARY INFORMATION:

The draft guidance document will be available on the Internet at: http://www.epa.gov/​correctiveaction.completion of corrective action activities. This guidance will take the form of a memorandum from EPA headquarters to the Regional offices. EPA developed this memorandum to provide guidance to EPA and State regulators in recognizing completion determinations at RCRA treatment, storage, and disposal facilities. By recognizing completion of corrective action activities, the agency can inform the owner or operator that RCRA corrective action is complete at the facility. This information can promote transfer of ownership of the property and, in some cases, can help return previously used commercial and industrial properties, or “brownfields,” to productive use.

The official record for this notice will be kept in paper form. Accordingly, we will transfer all comment and input received electronically into paper form and place them in the official record, which also will include all comments submitted directly in writing. The official record is the paper record maintained at the RCRA Information Center.

All input will be considered thoroughly and seriously by EPA. EPA will not immediately reply to commenters electronically other than to seek clarification of electronic comments that my be garbled in transmission or during conversion to paper form, as discussed above.

Dated: September 25, 2001.

Elizabeth Cotsworth,

Director, Office of Solid Waste.

Memorandum

Subject: Recognizing Completion of Corrective Action Activities at RCRA Facilities

From: OSWER OECA

To: RCRA Division Directors, Regions I-X Enforcement Division Directors, Regions I-X Regional Counsel

This memorandum provides guidance to the Regions and the authorized States on acknowledging completion of corrective action activities at RCRA treatment, storage and disposal facilities.^[1] It provides guidance on when completion determinations should be made, and the appropriate procedures EPA and the authorized States should follow when making completion of corrective action determinations.^[2]

Why Recognize Completion of Corrective Action?

An official determination that corrective action is complete, made through appropriate procedures, benefits the owner or operator of the facility, the regulatory agency implementing the corrective action, and the public. By making a formal completion determination, the regulatory agency (EPA or the authorized State ^[3] ) can inform the owner or operator of a facility that RCRA corrective action is complete at the facility. This information can promote transfer of ownership of the property and, in some cases, can help return previously used commercial and industrial properties, or “brownfields,” to productive use. Further, once the regulatory agency implementing corrective action makes a determination that corrective action is complete, it can remove that facility from its workload universe and focus agency resources on other facilities. Finally, because completion determinations should be made through a process that provides adequate public involvement, the process of making a formal completion determination assures the public an opportunity to review and comment on the cleanup, and to pursue available administrative and judicial challenges to the agency's decision.^[4]

When Should an Agency Make a Determination That Corrective Action Is Complete?

At some facilities, EPA or the authorized State will determine that no corrective action is necessary. At facilities where corrective action is necessary, the regulatory agency should make a determination that corrective action is complete when a review of the remedy indicates that releases have been addressed as necessary to protect human health and the environment (see 40 CFR 264.101). Compliance with corrective action requirements should be evaluated against applicable requirements, e.g., the permit, a RCRA section 3008(h) order, or 40 CFR Part 264, Subart F. Regulatory agencies should consider the May 1, 1996 Advance Notice of Proposed Rulemaking (ANPR) and other Agency guidance, in making completion determinations (see 61 FR 19432).

What Procedures Should an Agency Follow to Recognize Completion of Corrective Action?

The regulations do not have explicit procedures for recognizing completion of corrective action, so the 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. Providing meaningful opportunities for public participation in the decisionmaking process should be a crucial component of a completion determination procedure. The Agency believes that the following generally are appropriate procedures for making completion determinations.^[5]

At permitted facilities, the agency (EPA or the authorized States) should modify the permit to reflect the agency's determination that corrective action is complete. The current regulations in 40 CFR 270.42 provide procedural requirements for facility requested permit modifications. In most cases, completion of corrective action will be a Class 3 permit modification, and the agency should follow those procedures (or authorized State equivalent), including the procedures for public involvement. 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)).

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.^[6]

EPA recognizes that referring to this decision as a “permit denial” can 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”) 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 have been met.

EPA and 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, an 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. 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 site are not the same as completion determinations.

Use of an alternative procedure might be especially useful in acknowledging completion of a corrective action remedy (or a determination that no corrective action is necessary) that covers only a portion of the facility. A partial completion determination might be used at a facility that has cleaned up a portion of a facility and where a partial completion determination will facilitate the productive reuse of that portion of the facility. An alternative approach could also acknowledge completion of corrective action 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 letter (as described above) recognizing completion of the corrective action obligations to bring finality to that process.

By following appropriate procedures the authorized agency can make a sound, well informed completion determination. However, 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, then EPA and the authorized State may conclude that additional cleanup is needed.^[7]

Where Can I Obtain Additional Information About Completion of Corrective Action?

For further information on completion of corrective action, please contact Barbara Foster at 703-308-7057 or Peter Neves at 202-564-6072.

Footnotes

1.  The RCRA statutory provisions and EPA regulations referenced 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 appropriateness of the application of this guidance to a particular situation, and EPA will consider whether or not the recommendations or interpretations in the guidance are appropriate in that situation. EPA may change this guidance in the future.

2.  “Completion of corrective action” refers, for the purposes of this memorandum, to the satisfaction of obligations pertaining to past releases. Nothing in this memorandum is meant to address obligations regarding future releases at a facility. For example, the fact that the Agency has determined, at a permitted facility, that cleanup of past releases is “complete,” would not affect the facility's permitting obligation to report and clean up future releases at the facility.

3.  Authorized State for purposes of this memo refers to a State with an authorized corrective action program. It should be noted that in authorized States, EPA may be the lead Agency implementing corrective action at a facility under the authority of RCRA section 3008(h).

4.  The Agency anticipates that at facilities where meaningful public involvement begins early in the corrective action process, challenges at this point are less likely.

5.  Of course, if a facility's permit provides otherwise, these procedures would not be appropriate at that facility.

6.  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 40 CFR 124.17). Under 40 CFR 124.19, final decisions are subject to appeal.

7.  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.