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A More Pragmatic Approach to Cleaning Up Hazardous Waste Facilities

EPA is attempting to expedite cleanup at thousands of hazardous waste sites across the United States by directing its corrective action program to focus on practical cleanup strategies rather than on process.  This emphasis should yield faster and more efficient cleanups for industrial facilities in that program.

The corrective action program is one of two programs EPA uses to clean up properties contaminated with hazardous waste.  The other is the better-known Superfund program, which addresses primarily abandoned hazardous waste sites.  The corrective action program under the Resource Conservation and Recovery Act (RCRA) addresses facilities which actively manage hazardous waste and which also contain areas contaminated by prior activities.  Both programs have been the subject of warranted public criticism.

After three rounds of Superfund reforms intended to make the Superfund program faster, fairer, and more efficient, EPA now is focusing on administrative reforms to the RCRA corrective action program.  While in reforming the Superfund program EPA was faced with a statute and regulations with prescriptive requirements, the RCRA statute only contains very general requirements for corrective action.  Neither do the RCRA regulations include more than general requirements for the implementation of the corrective action program.

RCRA Cleanup Issues.  EPA first attempted to provide specific regulatory requirements by proposing regulations for corrective action (known as the 1990 Subpart S proposal) in July 1990.  EPA has used these proposed regulations as guidance for the regions and the states to implement the corrective action program.  The Subpart S regulations were never finalized and were officially withdrawn by EPA in October 1999 to clarify that EPA had abandoned the process–oriented approach reflected in those proposed regulations.

The proposed Subpart S regulations as well as related guidances issued by EPA on the corrective action program have focused more on the corrective action process and less on clean up results.  This process focus permeates the culture of the RCRA corrective action program and results in lengthy site investigations which have often taken years regardless of the complexity of the environmental problems at issue.  To date, the RCRA corrective action program, with its universe of about 5,000 RCRA facilities, can point only to few cleanup actions which have been started.  Even fewer have been completed.  EPA’s process-oriented approach to corrective action has led to substantial criticism from most stakeholder groups.

Nature and Scope of RCRA Cleanup Reforms.  Realizing that the RCRA corrective action program was broken and needed to be changed, EPA in July 1999 issued administrative corrective action reforms intended to achieve cleanup actions which will be faster, focused, and more flexible.  A second round of reforms was announced by EPA in January 2001.  These reforms build upon prior EPA efforts to streamline the RCRA corrective action program and make it more flexible and less encumbered by certain RCRA requirements such as land disposal restrictions, minimum technological requirements, and permitting.  For example, on May 1, 1996 EPA published an advance notice of proposed rulemaking (“ANPR”) which articulated EPA’s corrective action program management principles.  These principles have been reaffirmed in subsequent guidances and in the recent RCRA clean up reforms.  In particular, the principles emphasize that corrective action should be based on risk and should focus on results and not on a mechanistic cleanup process.  Focus should be on actions to control human exposure to pollutants and to control the migration of contaminated groundwater.  Further, corrective action should be accomplished by using the most appropriate authority, including state authorities, depending on site specific circumstances.

The current RCRA clean up reforms also build upon the RCRA post-closure rule with its reduction in procedural requirements and elimination of duplication of closure and corrective action requirements and the guidance issued in October 1998 on the “Management of Remediation Waste under RCRA.”  This guidance illustrates the available flexibility in the application of both substantive and procedural RCRA requirements to remediation waste.  As part of the RCRA reforms, EPA will issue guidances with an emphasis on results-based approaches.  Further, EPA expects that private parties will take a proactive approach to cleanups with reduced EPA oversight.  EPA also intends to issue guidance which will explain when corrective action is complete at part of a facility.

In order to encourage regions and states to adopt these practical and results-based approaches to corrective action and to familiarize regulators with the flexibility already available in existing policies and regulations, the national RCRA program has been training EPA regions and states on results-based corrective action.  This training effort together with a continued dialogue between EPA and industry is intended to change the culture of the RCRA program.

Benefits of RCRA Cleanup Reforms for Businesses.  Businesses subject to RCRA corrective action should be able to benefit from the RCRA clean up reforms.  Less process, but focus on immediate risk reduction and practical cleanup results as well as the creative use of the flexibility available in existing regulations and guidance, should lead to savings of time and money for the regulated industry.  Greater participation in, and responsibility for, achieving cleanup results with less EPA oversight, while increasing accountability, should allow private parties to conduct cleanups more effectively, more efficiently, and faster.  Having a definition of when corrective action is complete at part of the facility should encourage real estate transactions and the reuse and redevelopment of the cleaned up areas, a most desirable result for both business and communities.