U.S. AIR FORCE RESOURCE CONSERVATION AND RECOVERY ACT (RCRA) CORRECTIVE ACTION GUIDE

Transcription

1 U.S. AIR FORCE RESOURCE CONSERVATION AND RECOVERY ACT (RCRA) CORRECTIVE ACTION GUIDE Interim Guidance Apr 1998 OPR: HQ USAF/ILEVQ 1

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3 AIR FORCE RCRA CORRECTIVE ACTION GUIDE CONTENTS 1. INTRODUCTION 1.1 Purpose of this Guide 1.2 RCRA Corrective Action Background 1.3 Air Force RCRA Corrective Action Goals 2. PRINCIPLES GUIDING AN EFFECTIVE RCRA CORRECTIVE ACTION PROGRAM 3. SUMMARY OF LEGAL AUTHORITIES 3.1 RCRA Corrective Action Authorities 3.2 Existing Regulations 3.3 Regulatory Developments 3.4 Resolving Disputes 4. CORRECTIVE ACTION PROCEDURES 4.1 Entering the Corrective Action Process 4.2 The Corrective Action Process 4.3 Remediation Waste 5. MANAGEMENT ISSUES 5.1 Manpower 5.2 Funding and Budgeting 5.3 Programming 5.4 Prioritization 5.5 POM Strategy 6. SPECIAL ISSUES 6.1 Corrective Action vs. Post-Closure Permits 6.2 RCRA/CERCLA/DERP Interaction 6.3 RCRA/NEPA Integration 6.4 Regional Environmental Offices and Counsels 6.5 Status of RCRA Corrective Action Authorization by State 7. AIR FORCE REFERENCES 8. EPA REFERENCES 3

4 ATTACHMENT: Corrective Action Toolbox: 21 Sources of Guidance for RCRA Corrective Action (edited) 4

5 1. INTRODUCTION 1.1 Purpose of this Guide. The purpose of this guide is to introduce you to the Resource Conservation and Recovery Act (RCRA) 1 Corrective Action (CA) program. The RCRA-CA program is a cleanup program designed to ensure the remediation of hazardous releases 2 associated with RCRA-regulated facilities 3. Funding eligibility for cleanup sites at a RCRAregulated facility may either fall under the Air Force Installation Restoration Program (IRP) or under the Air Force Environmental Compliance Program (ECP), depending upon when the contamination at the site occurred 4. Management and execution of the RCRA-CA program may fall under the restoration or compliance sections at the MAJCOM and/or installation depending on local circumstances. This guide discusses the Air Force s goals, philosophy, and expectations with regard to cleanup under RCRA-CA for ECP-funded corrective action sites. IRP-funded cleanup sites are governed by policy and guidance from the Environmental Restoration Program 5. This guide also discusses the legal authorities governing the RCRA-CA process and EPA guidance interpreting such authorities. Finally, it covers AF RCRA-CA procedures and management issues. Any comments or recommendations for revisions to this guide should be directed to: HQ USAF/ILEVQ, 1260 Air Force Pentagon, Washington DC RCRA-CA Background. The EPA 6 enforces the RCRA-CA program principally through the statutory authorities established by the Hazardous and Solid Waste Amendments of 1984 (HSWA). The Agency proposed a rule (55 Federal Register (FR) 30798, July 27, 1990), that would implement under HSWA a comprehensive regulatory framework for conducting the corrective action program. The proposed rule is commonly known as Subpart S Proposal after the location within 40 Code of Federal Regulations (CFR) Part 264 where the rule would be codified. Only a small portion of this rule has since been promulgated, resulting in minimal regulatory (i.e., legally binding) requirements at present. That portion which has not been promulgated has the status of guidance. That is, it is very persuasive, but not binding, in and of itself. Since EPA failed to finalize the Subpart S Proposal, it has since issued two additional guidance documents to control and guide corrective action; the 1994 Corrective Action Plan (CAP) and the Subpart S Initiative (ANPR 61 FR 79432, 1 May 96). Since most of the rule is not promulgated and minimal regulatory requirements are defined, this guide provides an AF strategy for implementing RCRA corrective actions. 1 The Resource Conservation and Recovery Act of 1976 is actually an amendment to the Solid Waste Disposal Act (SWDA) of Since passage of the amendment, the entire SWDA has commonly been referred to as RCRA. RCRA was amended in 1984 by the Hazardous and Solid Waste Amendment (HSWA). 2 Hazardous releases are releases of hazardous waste or hazardous constituents to any environmental medium. 3 RCRA-regulated facilities are facilities with a RCRA permit or interim status. 4 If any portion of contamination can be shown to have occurred prior to Jan 84, the site is eligible for Environmental Restoration Account (ERA) funding. If this cannot be shown, ECP funding must be used. 5 AFI , Air Force Instruction Environmental Restoration Program; Air Force Environmental Restoration Management Guidance, June Frequently in this guide, EPA refers to the federal or a state authority delegated responsibility to oversee corrective action. The term Agency generally is used to refer to the federal EPA. 5

6 1.3 Air Force RCRA-CA Goals. The Air Force s goals in the ECP-funded RCRA-CA process are: - To satisfy its legal responsibilities to restore CA sites IAW RCRA (and CERCLA as applicable); - To use risk-based cleanup measures as the standard; - To conduct cost-effective cleanup under the corrective action program; - To complete cleanup in a timely manner; - To ensure the public has a meaningful opportunity to participate in corrective action decision-making; - To maintain consistency across different cleanup programs, and across state lines and EPA regions, to the maximum extent possible; - To achieve finality in the cleanup of sites. 6

7 2. PRINCIPLES GUIDING AN EFFECTIVE RCRA CORRECTIVE ACTION PROGRAM Here follow a set of principles to guide your thinking in how to approach RCRA corrective actions. They are not mandatory. You must tailor their application to your particular circumstances. 2.1 Reduce the number of solid waste management units (SWMUs). Each phase of the RCRA corrective action process presents opportunities to eliminate SWMUs from further action. Take advantage of each opportunity. SWMUs are listed on your Part B permit Be aggressive in conducting the RCRA Corrective Action Program Take the lead. Be proactive in working with your program; don t simply react to regulator wishes. Use your own judgment to arrive at the proposed remedy that makes the most sense considering the goals of the program. Be assertive in using appropriate means to motivate your regulators to address your documents and projects Do not be afraid to have professional differences of opinion with the regulators. Provide a timely challenge to the inclusion of those terms and/or requirements in conflict with the law, or those the regulator cannot justify including in the permit. The absence of differences among professionals can be an indication that one side has abdicated it s responsibilities. A difference of opinion does not mean that the installation is doing things wrong. While we do share with the regulators the same goal of environmental protection, we do not have the same organizational mission or priorities. After exhausting informal dispute resolution options, having an independent party (e.g. an administrative law judge) rule on the merits of each party s position, IAW the proper RCRA procedure, is a proper and acceptable way of resolving such differences Follow the rules. 7. A final RCRA corrective action permit is the most important legal authority governing corrective action at a permitted facility. Under 40 CFR 270.4, a final permit effectively supersedes the regulations. Know the meaning of every term and requirement in your corrective action permit/order. Where the installation is performing corrective action pursuant to a final order, that order is the most important legal authority governing the corrective action. Permits and orders can be challenged administratively for a short period following issuance, after which they become final. Guidance exists to help interpret the regulations and statutes. Guidance should be considered, but it need not be followed blindly 7 Statutes are passed by a legislative body (e.g., Congress). Regulations are issued by administrative agencies (e.g., EPA) to implement the statutes. Regulations must be consistent with the statutes they are issued under and their substantive scope can be no greater than is allowed by such statutes. Administrative procedure acts frequently provide for legal means to challenge regulations before they become final. Administrative authorities also issue guidance, which, unlike regulations, does not have the force of law. Administrative law judges and courts will, however, normally defer to the judgment of regulatory authorities expressed in guidance when the regulatory authorities can show that the guidance can be applied in a way that makes sense in the context of the specific situation in question. Unlike regulations, however, guidance need not be applied where it would not make sense to do so under the circumstances. 7

8 and it should not be followed when its implementation does not make sense given site-specific conditions. Informal direction given by regulators that conflicts with the law governing their actions does not fall within the rules the Air Force must comply with. Also, demands by regulators that require previous work efforts be duplicated or unnecessary deliverables/documents be submitted must be challenged, as these will unnecessarily increase project costs. Thus, simply satisfying the regulators does not guarantee compliance with the rules, or that the Air Force s interests will have been served Fully integrate the requirement of both RCRA and CERCLA in your Corrective Action Program Remember that we are subject to regulatory control under RCRA and we have independent legal authority and responsibility under CERCLA. Therefore, we are equally subject to the requirements of both statutes. Even though the corrective action and the installation restorations programs use different terminology, their processes and goals are nearly identical. Thus, the products of each (e.g., analytical data, studies, EPA documents) can be used to satisfy the requirements of the other. The costs of developing this type of information can be staggering and it would be counterproductive to reproduce the data/deliverable. See Section 6.2 for a more detailed discussion of RCRA/CERCLA interaction When possible, strive to include as many SWMUs that qualify for ERA funding into to the IRP program. This requires that any portion of the release to have occurred prior to Jan 84. This strategy ensures a quality and responsive remediation, and has the benefits of the AF being the lead agent--less regulatory involvement. The funding for the IRP program, namely ERA, is fenced in the year of execution, which protects it from cuts and allows better programming The Air Force enjoys several advantages from CERCLA that include the protection from lawsuits (CERCLA 113(h)) and an exemption from obtaining on-site permits (CERCLA 121(e)). These are more reasons why the IRP is emphasized as the best way to accomplish corrective actions. To ensure we benefit from the protections of CERCLA, you must maintain an awareness of the procedural parallels between cleanup under RCRA and cleanup under other laws (in particular, the parallels illustrated in Figure 2, Comparison of RCRA Corrective Action and CERCLA Remedial Action Processes. Continually question whether the corrective action steps you are taking are also satisfying CERCLA s Subparts E (Hazardous Substance Response) and I (Administrative Record for Selection of Response Action) of CERCLA s National Contingency Plan. 2.4 Strive for consistency in the selection of cleanup standards. Cleanup standards should differ on the basis of engineering considerations, not on the basis of which laws the cleanups are being carried out under. Cleanup standards should not be a function of which regulator is lead regulator for a particular program, or of which law drives the cleanup. Where it appears that a cleanup standard selected would be different under RCRA than it would be under CERCLA, question it. Remember that CERCLA uses RCRA standards as ARARs (Applicable or Relevant and Appropriate Requirements). 8

9 Strive to achieve risk-based standards. Use the ASTM Standard Risk-Based Corrective Action (RBCA) or the AF Relative Risk Model, where appropriate, Where other standards required by state law do not make sense in light of site-specific circumstances, exhaust administrative remedies and EPA negotiations allowing for variances, where appropriate. Ensure that institutional controls are in place to restrict the land-use when risk-based decisions are made Keep the public involved Establish a mechanism to let the general public know what documents are available for review and how they can view or obtain them Stimulate and maintain interest by producing documents that are understandable by educated lay people As appropriate, keep the public informed, particularly with regard to controversial decisions, and encourage their input. Regulators believe their mission is to protect the public from environmental hazards. Public input can provide the regulators a means to stay in touch with the public s concerns and priorities RCRA Corrective Action is a multi-disciplinary effort lead by the installation commander The installation environmental and legal offices should be involved in any permit application, modification or removal requests and throughout the process The public affairs office should be the program s liaison to the community Build your self inspection checklists from the requirements contained in your permits Establish habits that document your decision-making process Do not neglect the formalities. Send letters, create memoranda for the record, and use electronic mail to generate the written documents which memorialize your decision making processes. Regulators can afford to grant verbal approvals and rely on the customary practices you have established over time because they are not the ones required to maintain an administrative record. You are. And, as you know from experience, a regulator may change their mind or be replaced by another with a different opinion Documents should clearly state how they are satisfying the requirements of both RCRA and CERCLA, as applicable. 9

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11 3. SUMMARY OF LEGAL AUTHORITIES One of the [Environmental Protection] Agency s primary objectives in development of the RCRA corrective action regulations is to achieve substantive consistency with the policies and procedures of the remedial action program under CERCLA. 55 Fed. Reg (July 27, 1990). 3.1 RCRA Corrective Action Authorities Prior to HSWA's enactment, EPA had limited authority to require remediation or corrective action measures at facilities regulated under RCRA. Statutory authority was limited to Section 7003, which gives EPA authority to take action when contamination presents an imminent hazard to human health or the environment. Regulatory authority was limited to 40 CFR Part 264, Subpart F 8. Subpart F only addressed releases of hazardous waste from regulated units 9 into the uppermost aquifer. Typically, these facilities were in the business of subsequently managing hazardous wastes generated by another party (hazardous waste treatment, storage or disposal facilities). HSWA added statutory provisions to RCRA that gave EPA substantial statutory authority to develop a broader corrective action program. These provisions include: * Section 3004(u) - requires corrective action be addressed as a condition of a facility's 10 Part B permit * Section 3004(v) - provides authority to require corrective action for releases migrating beyond the facility boundary * Section 3008(h) - provides authority to require corrective action at interim status facilities. RCRA (HSWA) corrective action authority/jurisdiction includes: - any facility with a RCRA permit or interim status 11 ; - where there has been a release of hazardous waste or a hazardous constituent; - into any environmental media; - from or at a SWMU 8 Subpart F consists of sections to A regulated unit is a surface impoundment, waste pile, land treatment unit, or landfill that has received waste after July 26, C.F.R (a)(2). 10 Facility means: (1) All contiguous land, and structures, other appurtenances, and improvements on the land, used for treating, storing, or disposing of hazardous waste. A facility may consist of several treatment, storage, or disposal operational units (e.g., one or more landfills, surface impoundments, or combinations of them). (2) For the purpose of implementing corrective action under Section , all contiguous property under the control of the owner or operator seeking a permit under Subtitle C of RCRA. This definition also applies to facilities implementing corrective action under RCRA Section 3008(h). (40 C.F.R ; bolding added to emphasize the point that geographically separate units are not necessarily subject to corrective action simply because they are administratively attached to a base with a RCRA permit.) 11 Any federal facility with a RCRA permit or interim status is known as a RCRA facility/rcra permitted facility/rcra TSDF and is subject to RCRA corrective action authority. If the federal facility does not have a RCRA permit or interim status (has never filed a Part A Application), the RCRA corrective action program has no jurisdiction or authority over such federal facility. 11

12 These corrective action authorities are implemented on a case-by-case basis in facility permits or orders issued by EPA (Sections , 270.1(c), and (d)). 12 EPA has not promulgated a comprehensive regulatory program describing the corrective action process. Currently, the corrective action process is defined by various policy and guidance documents (see Section 1.2). The only corrective action regulations EPA has promulgated since HSWA are regulations regarding the management of remediation wastes generated during corrective action (Sections [Corrective Action Management Units (CAMU)] and [Temporary Units (TU)]). The statutory authorities for RCRA-CA as amended by HSWA follows, along with a brief description of each authority's application. IMMINENT AND SUBSTANTIAL ENDANGERMENT (Section 7003) RCRA Section 7003 gives EPA enforcement authority to abate potential imminent and substantial hazards caused by releases of solid or hazardous waste from any source. Specifically, Section 7003 provides EPA with the authority to seek legal relief in the appropriate United States District Court 13 or issue administrative corrective action orders for releases from sites where the handling, storage, treatment, transportation, or disposal of solid or hazardous waste may pose an imminent and substantial endangerment to human health or the environment. CONTINUING RELEASES AT PERMITTED FACILITIES (Section 3004(u)) RCRA Section 3004(u), added by HSWA, requires corrective action for all releases of hazardous waste or constituents from any solid waste management unit (SWMU) at a facility seeking a permit, regardless of when the waste was placed in the unit. A SWMU, as defined in the proposed Subpart S rule, is any discernible unit at which solid wastes have been placed at any time, irrespective of whether the unit was intended for the management of solid or hazardous waste. This definition includes any area at a facility where solid wastes have been routinely and systematically released. EPA interprets this authority to apply to any facility seeking a permit, including operating permits, post-closure permits, and permits-by-rule, after November 8, 1984 (50 FR and 28715, July 15, 1985). The cleanup must address releases to air, groundwater, surface water, and soil. Furthermore, facilities are required to maintain the permit until corrective action is completed. Section 3004(u) also requires the EPA to include schedules of compliance for completing corrective action in a facility's permit when issued. 12 See note 3. This statement is taken verbatim from the EPA hotline training module. It is but one of many instances in which EPA is saying, in effect, that the parties concerned (i.e., regulated entities and regulatory authorities) have the freedom to establish corrective action programs which make sense under the circumstances that pertain to the site. Where individual regulators insist on applying guidelines rigidly, in a way that does not make sense, it is up to the Air Force installation to challenge such regulators through administrative law channels (as by appealing permits to an administrative law judge). 13 Under the Department of Justice s Unitary Executive Theory, executive agencies do not sue each other in judicial tribunals. Thus, it is much more likely that an Air Force installation would receive an administrative order under section 7003 than that it would receive a summons to appear in US District Court. Federal agencies may, however, be sued in court by State authorities administering corrective action. 12

13 BEYOND THE FACILITY BOUNDARY (Section 3004(v)) While the authority for cleanup under Section 3004(u) is broad, it only applies to contamination on the contiguous property of a facility and does not address the migration of hazardous constituents beyond the boundaries of the facility seeking the permit. To address these concerns, Congress also amended RCRA with Section 3004(v). This section gives EPA the authority to require a facility owner/operator to clean up releases that have migrated beyond the facility boundary. Specifically, the owner/operator must institute corrective action wherever necessary to protect human health and the environment unless the owner/operator demonstrates to the satisfaction of the Regional Administrator that despite the owner/operator's best efforts, he or she was unable to obtain the necessary permission from adjacent property holders to undertake such actions (Section (c)). INTERIM STATUS CORRECTIVE ACTION (Section 3008(h)) Under HSWA, Congress also gave EPA the authority to issue orders requiring cleanups at facilities seeking a permit, or interim status facilities. This provision was added as Section 3008(h), which allows EPA to issue an administrative order or file a civil action whenever it determines on the basis of any information that there is or has been a release of hazardous waste into the environment from an interim status facility. This applies to facilities that are currently operating under interim status (i.e., has filed a Part A Application for a permit), that formerly operated under interim status, or that should have obtained interim status 14. It also applies to any release of hazardous waste or constituents from the facility. In addition to requiring cleanup, EPA has the authority under Section 3008(h) to revoke or suspend interim status. Finally, as with Section 3004(v), EPA may use Section 3008(h) to require corrective action beyond the facility boundary. 3.2 EXISTING REGULATIONS Non-regulated solid waste management units are not subject to 40 CFR Parts 264 and 265; consequently, environmental risks at those units are determined and addressed on a site-specific basis through the corrective action process. 61 Fed. Reg (May 1, 1996). Presently the RCRA corrective action program is implemented largely through its statutory authorities and EPA guidance developed pursuant to those authorities. There are, however, some codified requirements. Part 264, Subpart F requires corrective action for releases to groundwater from regulated units (e.g., landfills, surface impoundments) that received hazardous waste after July 26, Under these regulations, corrective action is the third step of a three-phase program for detecting, characterizing, and responding to releases to the uppermost aquifer from regulated units. In the corrective action phase, the owner/operator is required to remove or treat in place all contaminants present in concentrations above previously determined groundwater protection 14 Protective filers (i.e., facilities that were in existence on November 19, 1980, notified the Agency of their activities according to Section 3010, and submitted their Part A application but never conducted a regulated activity requiring a permit) are not considered by the Agency to be in interim status (50 FR 38948, Sept 25, 1985) 13

14 standards (Section ). This type of corrective action applies only to regulated units (Section ) as opposed to all SWMUs (Section ) and follows a slightly different procedure. Facilities are also required to institute corrective action for releases of hazardous waste or constituents from SWMUs (Section ). This section essentially reiterates the statutory language of Section 3004(u). Part 270 requires anyone seeking a RCRA permit to identify, in their permit application, any SWMUs found at their facility (Sections 270.1(c), (d)). EPA also promulgated regulations mitigating the regulatory burden of handling remediation wastes generated during the corrective action process (Sections , ). 3.3 REGULATORY DEVELOPMENTS HSWA expanded corrective action authorities for both permitted and interim status RCRA facilities. The new corrective action authorities became effective on November 8, 1984, the date of HSWA enactment. Implementing corrective action regulations are codified at Sections , 270.1(c), and (d). Since the initial HSWA codification rulemaking, EPA proposed a more comprehensive, systematic approach to corrective action, which would be codified as Part 264, Subpart S (55 FR 30798; July 27, 1990). This proposal addresses corrective action for SWMUs at facilities subject to RCRA permitting. The 1990 proposal received significant public comment. Although EPA finalized only those sections of the proposal promulgating regulations for CAMUs and TUs (see Section 4.3 of this module for more information), the bulk of this proposal was never finalized, but is still used as guidance during corrective actions. In an effort to reevaluate this proposal in light of experience in implementing the corrective action program since 1986, the Agency published an advance notice of proposed rulemaking (61 Fed. Reg ; May 1, 1996) to introduce EPA's strategy for promulgation of corrective action regulations, and to expand on the Agency's philosophy and priorities. The advance notice, known as the Subpart I Initiative, opens a dialogue with the regulated community on ways to make the corrective action process shorter and cost-effective for the regulated community and for the Agency; 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 also gives the regulated community direction and guidance on the current corrective action policies, relating the status of the corrective action process to other rulemaking efforts such as the post-closure permitting rule, state authorization revisions, and administrative improvements and reforms under Superfund. 14

15 3.4 RESOLVING DISPUTES As mentioned in Section 2.1.2, do not be afraid to have professional differences of opinion with the regulators. Here are some points to consider on dispute resolution: 1) Prioritize your issues and thoroughly research your positions 2) Use your partnering processes and methods to resolve issues 3) Have local JA/CEV/EM draft an opinion to forward to EPA (coordinate with Regional Counsel and MAJCOM) 4) Informally discuss with permit writers at EPA (outside of partnering) 5) Draft formal comment for official record 6) Consult with wing advisory board and encourage them to comment 7) Appeal to the Environmental Appeals Board/draft a formal brief for submission (JACE involvement required) 8) Receive response from EPA 9) Negotiate for as long as you want 10) Go to hearing Use an escalating process, but you need not use every step described above. Some steps can be taken simultaneously. Attachment 1 is a handout developed by EPA Region 4 called "CA TOOLBOX: 21 Sources of Guidance for RCRA HSWA Corrective Action (edited)" which contains 21 references to various preambles, proposed rules, guidance documents, etc. that are useful in making arguments to regulators organized by subject. 15

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17 4. CORRECTIVE ACTION PROCEDURES 4.1 ENTERING THE CORRECTIVE ACTION PROCESS One of the keys to understanding the RCRA corrective action program is knowing how a facility becomes subject to the corrective action process. A facility is not simply thrust into the program every time a spill of hazardous waste occurs. There are primarily four ways a facility becomes subject to corrective action. The first and most common uses RCRA Section 3004(u) and involves the identification of SWMUs during the process whereby a facility obtains a permit to treat, store, or dispose of hazardous waste. Second, a facility owner/operator may volunteer to perform corrective action. 15 Third, EPA may issue an enforcement order, pursuant to Sections 7003 or 3008(h), requiring a facility to implement corrective action. The final trigger arises from groundwater monitoring. If a facility owner/operator detects statistically significant evidence of increased contamination over certain concentration limits established in the permit, he or she must institute a corrective action program (Sections (a)(2) and (a)(3)). 4.2 THE CORRECTIVE ACTION PROCESS EPA emphasizes that it expects facility owners/ operators to develop and recommend remedies, including proposed media cleanup levels, points of compliance and compliance time frames. 61 Fed. Reg (May 1, 1996) The purpose of the corrective action process is to provide for controlled cleanup of contamination within the structure of the RCRA program. The corrective action process is used to evaluate the nature and extent of contamination, identify the physical and geographic characteristics of the facility, and identify, develop, and implement appropriate corrective measures. This process is designed to be flexible; consequently, the Agency will use only those portions of the process that are appropriate. However, some State EPAs tend to use all portions of the process (as spelled out in the 1994 CAP), even though they may not be applicable to a site and its site-specific conditions. The corrective action process generally comprises the activities in Figure 1. Each serves to further focus the investigation, progressing from identifying potential concerns to investigating an actual problem and, finally, selecting a specific remedy. These activities are not dictated by the regulations but are used by EPA in guidance documents relevant to corrective action. These activities are: 1 RCRA Permit Application Submission and Issuance - events that subject a facility to RCRA authority and identifies the SWMUs 2 RCRA Facility Assessment (RFA) - identifies probable or actual releases from SWMUs 3 Release Assessment - limited assessment to determine if contaminants are present and, if so, to what extent 4 Air Force Prioritization - prioritizes the RFA and interim measures of a site relative to other sites 15 Note that Air Force facilities do not normally volunteer to perform corrective action under RCRA. Federal facilities perform restoration under DERP and CERCLA and do not normally fall under RCRA as well unless they fall under the corrective action program for some other reason. 17

18 5 Interim/Stabilization Measures (IM) - implements measures to achieve high-priority, shortterm remediation needs or dictates that no further actions (NFA) are required 6 RCRA Facility Investigation (RFI) - compiles information to fully characterize the release 7 Corrective Measures Study (CMS) - identifies appropriate measures to address the release 8 Statement of Basis - describes the remedy selection and explains the cleanup level chosen to the public 9 Corrective Measures Implementation (CMI) - designs and implements the remedy. RCRA CA STEPS PERFORMED BY RCRA Permit /IS RCRA Facilit y Assessment (RFA) EPA Int erim/st abilizat ion measures evaluat ion* RCRA Release Assessment (RA) Owner/ Operat or (EPA Performs Oversight ) AF Priorit izat ion RCRA Facilit y Invest igat ion (RFI) Owner/ Operat or (EPA Performs Oversight ) Correct ive Measures St udy (CMS) Owner/ Operat or (EPA Performs Oversight and Select s Alt ernat ive) St at ement of Basis Correct ive Measure Implementat ion (CMI) Owner/ Operat or (EPA Performs Oversight ) * St abilizat ion evaluat ions may occur aft er an RFA, an RA or an RFI, and int erim/st abilizat ion measures may be t aken t hroughout t he correct ive act ion process. Figure 1 RCRA CORRECTIVE ACTION PROCESS 18

19 STEP 1: RCRA PERMIT APPLICATION SUBMISSION AND ISSUANCE Any federal facility with a RCRA permit or interim status is known as a RCRA facility/rcra permitted facility/rcra TSDF and is subject to RCRA corrective action authority. If the federal facility does not have a RCRA permit or interim status (has never filed a Part A Application), the RCRA corrective action program has no jurisdiction or authority over such federal facility. Thus, application/issuance of a RCRA Part A/B permit to treat, store, or dispose of hazardous waste is the first step in the RCRA corrective action process. STEP 2: RCRA FACILITY ASSESSMENT The next activity in the corrective action process is the RCRA facility assessment (RFA). The objective of the RFA is to identify potential and actual releases from SWMUs and make preliminary determinations about releases, the need for corrective action, and interim measures. The RFA is funded and conducted by the regulatory agency 16 and occurs prior to permit issuance (Section (b)). If the facility is in interim status and is not seeking a permit, the RFA would take place before the facility closes. The RFA begins with a file review of information about the facility. The regulatory agency, or a contractor for the EPA, may then conduct a visual site inspection to confirm available information on SWMUs and to note any visual evidence of releases. The RFA is analogous to a Preliminary Assessment under CERCLA. STEP 3: RELEASE ASSESSMENT When SWMUs identified during the RFA are questionable, the permittee may conduct a limited Release Assessment (RA) to determine if contaminants are present and, if so, to what extent. The purpose of this step is to eliminate SWMUs from the permit or gain a No Further Action (NFA) status for the SWMU, particularly if the SWMU was erroneously identified during the RFA. Also, if only a minimal amount of contaminants are present, the RA can initiate an interim action to achieve stabilization or NFA. This step can significantly reduce project costs by unnecessarily entering the RFI/CMS/CMI steps. The use of a limited RA, in conjunction with existing site data (from IRP activities or other sources) and existing EPA relationships, can successfully eliminate a great percentage of SWMUs from the RCRA corrective action process, thereby saving the Air Force millions of dollars. STEP 4: AIR FORCE PRIORITIZATION SYSTEM It is Air Force policy to address the worst environmental threats first. Therefore, after initially assessing a site (RA), the site's relative environmental importance should be ranked. This ranking can be used to focus your efforts and allocate resources. There are several techniques 16 The EPA normally contracts these SWMU hunts. These will often be the same contractor bidding on the RFI/CMS/CMI work later. Be mindful of the potential conflict of interest and closely scrutinize each SWMU identified during the RFA. 19

20 available to assist in this effort 17. Environmental factors to consider in the prioritization include types and volumes of wastes present, contaminant release pathways, and the potential for human and ecosystem exposure to contaminants. More guidance to follow here after we look closer at the ASTM-RBCA and the AF Relative Risk Model. STEP 5: INTERIM/STABILIZATION MEASURES Contaminated sites occasionally present serious and immediate hazards which EPA must address quickly during the corrective action process. This process is called stabilization. The actions used to achieve the goal of stabilization are called interim measures or interim/stabilization measures. Interim/stabilization measures are short-term actions taken to respond to immediate threats to human health or prevent damage or contaminant migration to the environment. Evaluate the need and feasibility of interim/stabilization measures by conducting a stabilization evaluation. Perform the stabilization evaluation after an RFA, an RA or an RFI. Interim or stabilization measures may be taken at any time in the corrective action process and should be consistent with the final remedy. When there is sufficient time to apply for a permit modification prior to performing stabilization measures, such stabilization should not be performed as an interim measure. Some sites pose relatively simple solutions without extensive contamination. For these sites, interim actions may be performed to abate a threat or eliminate the site from consideration all together NFA. The comparable CERCLA step for ISM is the Removal Action. STEP 6: RCRA FACILITY INVESTIGATION Another activity in the corrective action process is the RCRA facility investigation (RFI). The RFI takes place when a release has been suspected during the RFA, confirmed in the RA, and further investigation is necessary to fully characterize the nature, extent, and rate of migration of contaminants to determine the appropriate response action. The investigation should focus on the specific units, releases, and exposure pathways identified as problematic earlier in the process to avoid unnecessary and unproductive investigations. Permittees may be required to submit a plan for conducting an RFI, which will be overseen by the implementing agency and may include a human health and ecological risk assessment. The RFI is analogous to a Site Inspection and Remedial Investigation under CERCLA. STEP 7: CORRECTIVE MEASURES STUDY After the RFI is completed, and the regulatory agency determines (on the basis of the information available) that cleanup is necessary, the owner/operator must conduct a corrective measures study (CMS). A CMS may not be necessary if an IM is found appropriate or there are presumptive remedies that apply (check with AFCEE). The purpose of the CMS is to identify and evaluate cleanup alternatives for releases at the facility. The owner/operator must identify the appropriate corrective measures to address the threats posed by the releases, including measures to control the source of contamination and actions to abate problems caused by 17 This is one of the unresolved issues for the Tiger Team to work which technique to use. 20

21 migration of contaminants from the source. 18 The recommended measures are reviewed by EPA or the state and EPA/state selects the best remedy given site-specific considerations. EPA may request additional information or additional alternatives throughout this process. When a remedy is selected, the facility's permit is modified to include the remedy and a schedule of compliance. At that time the remedy is subject to public review and comment. Note that the permit modification can occur at the instigation of the regulator (under section ), or upon the request of the permittee (under section ). The CMS is analogous to a Feasibility Study under CERCLA. STEP 8: STATEMENT OF BASIS In addition to the permit modification EPA/state should also publish a statement of basis. This statement describes the basis for remedy selection and an explanation for the cleanup levels chosen. The Statement of Basis is analogous to a Record of Decision (ROD) under CERCLA. STEP 9: CORRECTIVE MEASURES IMPLEMENTATION (CMI) Once the implementing agency has selected a remedy, the facility enters the corrective measures implementation (CMI) phase of corrective action. During the CMI, the owner/operator of the facility implements the chosen remedy. This phase includes design, construction, maintenance, and monitoring of the chosen remedy, all of which are performed by the facility owner/operator with Agency oversight. A remedy may be implemented through a phased approach. Phases could consist of any logically connected set of actions performed sequentially over time or concurrently at different parts of a site. For example, if groundwater contamination is currently extending beyond the facility boundary it may be most important to address this problem first and address the larger remediation areas after the plume is under control. CMI is analogous to Remedial Design/Remedial Action (RD/RA) under CERCLA. 4.3 REMEDIATION WASTE Cleaning up RCRA facilities under the corrective action program may involve the management of large amounts of waste such as contaminated soils, water, debris, and sludges which contain a listed waste or exhibit a characteristic of hazardous waste. Such "remediation wastes" (Section ) that are managed for the purpose of implementing corrective action requirements are generally subject to the same management standards as newly generated RCRA hazardous waste, including TSDF standards and land disposal restrictions (LDR). These management standards are sometimes counterproductive when applied to cleanups because they may unnecessarily slow the corrective action process and increase the cost of corrective action without providing a concurrent level of protection of human health and the environment. In order to mitigate the impact of these management standards on the corrective action program, EPA promulgated regulations that allow the use of alternative remediation waste unit standards that will ensure cleanups are fully protective while eliminating some of the regulatory hurdles associated with 18 This language is taken verbatim from the EPA training module that served as the model for this guide. It is reproduced in bold to emphasize that Air Force installations should not be passive participants in the corrective action process. They should be taking the lead, not simply writing out checks. 21

22 waste management. EPA accomplished this by creating two new management units: temporary units (TUs) and corrective action management units (CAMUs). Temporary units are tanks or container storage areas that EPA designated to be used solely for the treatment or storage of remediation wastes during corrective action. By designating a tank or container storage area as a temporary unit, EPA may modify the design, operation, and closure technical standards normally applicable for such units for up to one year, unless EPA grants an extension. The TU must comply fully with all specific alternative unit standards set out in the facility permit. CAMUs are physical, geographic areas within a facility designated for managing remediation wastes during corrective action (Section ). By designating an area as a CAMU in a permit or an order, EPA exempts that area from LDR and the land disposal unit minimum technology requirements (MTR). A CAMU can only manage remediation wastes during the corrective action process at the facility. Remediation wastes can originate only from within a facility, but may include wastes managed in implementing corrective action beyond the facility boundary pursuant to Sections 3004(v) or 3008(h). CAMUs may also be used for the purpose of remediation under Section

23 5. MANAGEMENT ISSUES 5.1 MANPOWER. The Air Force Manpower Standard for the Environmental Flight (44EV) gives a small variance for stateside installations for requirements to manage compliance programs for permitted facilities. These variances are small and will most likely not generate additional manpower authorizations for RCRA corrective action. 5.2 FUNDING. RCRA-CA projects are funded with environmental compliance funds. A new element of expense investment code (EEIC) to properly track RCRA-CA expenses is being established. Until then, funding should be categorized as Other under the appropriate environmental compliance program elements. ERA funds may be used for RCRA-CA projects or for recurring RCRA-CA operation and services requirements if the any part of the contamination release can be proven to have occurred before Jan However, DSMOA funds nor ECP funds can be used to pay the EPA to review documents submitted to it for approval. The EPA, usually the State EPA must fund these with their operating expenses. This is an issue to monitor, as States are considering proposing legislation to require permitees to pay this fee. 5.3 PROGRAMMING. RCRA-CA projects will be programmed like other environmental O&M projects and total requirements briefed at annual program management reviews (PMRs) and POM reviews. For compliance funded RCRA-CA to be considered a Level 1 compliance requirement, the RCRA-CA action must be a requirement in the RCRA permit or have a RCRA consent/enforcement order, and must be out of compliance for the year of execution. While all SWMUs are really out of compliance, timing of the EPA review must be considered in determining the out of compliance date. The goal is to use the AFIRMS to track the requirements and transfer the bottomline costs to A-106. This issue needs further review and staffing. 5.4 PRIORITIZATION. Since the standard level definitions for compliance projects are not appropriate for these projects, a different method must be used. This is one of the issues to resolve after review of the ASTM Risk-Based Corrective Action model and the environmental restoration relative risk site evaluation model. 5.5 POM STRATEGY. Compliance funded RCRA-CA projects/funds will compete with other EC requirements in the POM. The POM strategy will be based on reasonable goals to complete high, medium and low risk sites by agreed upon dates. Level 1 requirements and high relative risk sites have first priority. 23

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25 6. SPECIAL ISSUES The following topics briefly address interface issues, first within the RCRA regulatory scheme and secondly between statutory programs, and assistance available to the field in RCRA-CA. 6.1 CORRECTIVE ACTION vs. POST-CLOSURE PERMITS The corrective action process is often closely interrelated with the closure process. Frequently, a closing unit has caused contamination of environmental media which necessitates corrective action during the post-closure period. Usually this corrective action is addressed through a postclosure permit pursuant to Section 3004(u). EPA has proposed to remove the post-closure permit when appropriate (59 FR 55778; November 8, 1994). The implementing agency would then have the freedom to use the most legal appropriate authority to remediate the site (e.g., Section 3008(h), groundwater monitoring corrective action pursuant to Section , CERCLA, state cleanup programs). Remember that permits can be a source of NOVs, fines, penalties, and lawsuits. EPA has proposed a means to avoid those problems while still providing for protection of human health and the environment. Installations are encouraged to address this issue with their regulators when units are ready for closure. 6.2 RCRA/CERCLA/DERP INTERACTION The statute 19 establishing the Defense Environmental Restoration Program (DERP) provides that the Secretary of Defense shall carry out a program of environmental restoration at facilities under the jurisdiction of the Secretary. It also prescribes that activities of the program be carried out subject to, and in a manner consistent with, Section 120 (relating to Federal facilities) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). Thus, while a base may be performing corrective action under RCRA, it is still subject to, and must comply with remediation requirements under DERP and CERCLA. 20 One practical consequence of this is that CERCLA 121(e), which exempts on-site response actions from any federal, state, or local permits which would otherwise be required, applies to installations which are conducting corrective action under RCRA, so that, for instance, a water permit is not required to discharge treated remediation wastewater on-site. Corrective action permits themselves are outside the permit exclusion, but they should not include requirements U.S.C. section CERCLA section 120(1)(2) expressly provides as follows: All guidelines, rules, regulations, and criteria that are applicable to preliminary assessments carried out under this chapter for facilities at which hazardous substances are located, applicable to evaluations of such facilities under the National Contingency Plan, applicable to inclusion on the National Priorities List, or applicable to remedial actions at such facilities shall also be applicable to facilities which are owned or operated by a department, agency, or instrumentality of the United States in the same manner and to the extent as such guidelines, rules, regulations, and criteria are applicable to other facilities. No department, agency, or instrumentality of the United States may adopt or utilize any such guidelines, rules, regulations, or criteria that are inconsistent with the guidelines, rules, regulations, and criteria established by the Administrator under this chapter. (Emphasis added.) 25

26 which are inconsistent with CERCLA and DERP, and must acknowledge the installation s CERCLA/DERP authorities and responsibilities. Another practical consequence is that because Air Force installations have affirmative requirements to perform restoration under DERP which the private sector does not have to follow, there is no need or statutory basis for Air Force installations to enter into RCRA corrective action voluntarily, where the intent or practical effect of such action is to nullify the Air Force s responsibilities and authorities under CERCLA. Furthermore, public notice and participation requirements under CERCLA apply whether or not RCRA regulatory authorities feel there are analogous requirements under RCRA which need to be satisfied. The bottom line is that while the regulatory authorities oversee responsibility for achieving compliance with RCRA requirements, Air Force installations remain tasked with assuring that their actions also comply with CERCLA. Any questions about supposed inconsistencies in the application of the CERCLA and RCRA at the same site should be referred to HQ USAF/ILEV, through the MAJCOM. The RCRA corrective action process and the CERCLA remedial action process are very similar programs. They follow roughly parallel procedures in responding to releases of contaminants (Figure 2). Sometimes the two programs overlap. For example, where a contaminated site is an active RCRA-permitted facility, we may consider whether the use of RCRA or CERCLA authorities (or both) is most appropriate to accomplish cleanup of the site. The investigation and cleanup of solid waste management units (SWMUs) as required by sections 3004(u), 3004(v), 3008(h), and 9003(h) of RCRA and 40 CFR (Solid Waste Landfill Corrective Actions) may be eligible for ERA funding. However, determining ERA-eligibility shall be accomplished by MAJCOMs on a site-by-site basis in accordance with the aforementioned and as summarized in Table 1. Estimated Duration of Tasks RCRA vs CERCLA 3-6 Months RCRA Facility Assessment (RFA) Preliminary Assessment/ Site Investigation (PA/SI) Identify releases needi further investigation Months RCRA Facility Investigation (RFI) Remedial Investigation (RI) Characterize nature, extent, and rate of contaminant releases 6-9 Months Corrective Measure Study (CMS) Feasibility Study (FS) Evaluate/select remedy More than 6 Months Corrective Measure Implementation (CMI) Remedial Design/ Remedial Action (RD/RA) Design and implementation of chosen remedy Figure 2 COMPARISON OF RCRA CORRECTIVE ACTION AND CERCLA REMEDIAL PROCESSES 26