UNITED STATES OF AMERICA

ENVIRONMENTAL PROTECTION AGENCY

OFFICE OF SOLID WASTE

CORRECTIVE ACTION FOR RELEASES FROM SOLID WASTE 

MANAGEMENT UNITS AT HAZARDOUS WASTE 

MANAGEMENT FACILITIES

ADVANCE NOTICE OF PROPOSED RULEMAKING

61 FR 19432, MAY 1, 1996

PUBLIC HEARING

MONDAY

JUNE 3, 1996

          The public hearing took place in

Georgetown Ballrooms A&B, Key Bridge Marriott

Hotel, Arlington, Virginia, at 9:00 a.m., Matthew

Hale, Director, presiding. 

PRESENT:       Matthew Hale, Director

          Paul Balserak, Panelist

          Hugh Davis, Panelist

          Robert Hall, Panelist

          Stephen Heare, Panelist

          Elizabeth McManus, Panelist

          Guy Tomassoni, Panelist

ALSO PRESENT:  Larry Bone, Public Comment

             Peter Day, Public Comment

             Mark Gordon, Public Comment

             Lowell Martin, Public Comment

             Lisa Nakamura, Public Comment

             Jim Roewer, Public Comment

     A-G-E-N-D-A

     page no.

Opening Remarks and EPA Panel Introduction

Matthew Hale, Director

Permits and State Programs Division

EPA Office of Solid Waste, OSW (renamed Office of Resource Conservation and Recovery, ORCR, on January 18, 2009)      3   

Hearing Procedures

Robert Hall, Chief, Corrective Action

Programs Branch, Permits and State

Programs, EPA Office of Solid Waste, OSW (renamed Office of Resource Conservation and Recovery, ORCR, on January 18, 2009)     5   

Summary of ANPR

Hugh Davis, Corrective Action Programs Branch

Permits and State Programs Division

EPA Office of Solid Waste, OSW (renamed Office of Resource Conservation and Recovery, ORCR, on January 18, 2009)     8   

Commenter 1:  Larry Bone, Dow Chemical

for the Chemical Manufacturers Assoc.   15   

Commenter 2:  Lowell Martin of Morgan, 

Lewis and Bockius representing the 

RCRA Correction Action Project     25   

Commenter 3:  Mark Gordon, State of Wisconsin

representing the Association of State and 

Territorial Solid Waste Management Officials 41   

Commenter 4:  Peter Day, Phillips Petroleum 

Company representing 

the American Petroleum Institute   49   

Commenter 5:  Lisa Nakamura 

International Technology Corporation    65   

Commenter 6:  Jim Roewer

Utility Solid Waste Activities Group    78   

     P-R-O-C-E-E-D-I-N-G-S

     9:03 a.m.

     

     

DIRECTOR HALE:  Hello.  I'm Matt Hale.  I'm the

Director of the Permits and State Programs

Division in EPA's Office of Solid Waste, OSW (renamed Office of Resource Conservation and Recovery, ORCR, on January 18, 2009).  I'd like

to welcome you here today to the public hearing on

our Advance Notice of Proposed Rulemaking (ANPR)

titled Corrective Action for Solid Waste

Management Units at Hazardous Waste Management

Facilities, which is commonly referred to as the

Subpart S ANPR.  We published this ANPR for

comment last May 1st.    

     

I'm pleased that you're all here today.  We've had

clean-up programs, corrective action clean-up

programs for hazardous waste facilities in place

at the state and federal level since the mid 1980s

when they were required under the HSWA amendments

to RCRA.  We've made considerable progress in

evaluating and cleaning up many of the sites, both

under federal and state programs.  However, we

also recognize that our progress in the program

hasn't satisfied everybody and that it's time to

rethink many aspects of the program.    

     

We've undertaken this rethinking and attempts to

improve the program as part of our Subpart S

initiative which we described in some detail in

the ANPR.  We're in a particularly advantageous

position with this effort because we can draw on

the experience of all our stakeholders in the

clean-up program including states who've

established their own programs and also companies

and communities who've worked together on site

specific solutions.      

     

The May 1st ANPR is an important step in the

process of rethinking our clean-up programs. 

We've laid out a series of key issues in the ANPR

for comment and we hope to hear from our many

stakeholders on these issues and we hope they can

give us their thoughts in improving the program.  

     

I want to emphasize that while the ANPR is looking

toward a regulation it's also part of a broader

effort to rethink our entire clean-up program and

we're looking for your comments not simply on what

and whether regulatory changes are needed, but

particularly the direction we should be going in

as a whole in the national program and in the

programs run by authorized states.  Again, I want

to thank you very much for your time in coming to

meet with us today, and we look forward to hearing

your comments today.  We also look forward to

seeing your written comments that we hope you'll

be submitting to the record.  We'll certainly take

all your comments seriously and I'm sure that out

of this effort we'll significantly improve our

clean-up program and I hope end up in the position

we're all looking for.        

     

I'd like to turn this over to Bob Hall who's the

Chief of the Corrective Action Program Branch in

Office of Solid Waste, OSW (renamed Office of Resource Conservation and Recovery, ORCR, on January 18, 2009), and he'll explain the

hearing process.  Thank you.  

     

MR. HALL:  Thank you, Matt.

     

     

I'm pleased to see such a good turnout here today. 

There are a few handouts on the table in the rear. 

If you didn't pick up copies of the ANPR and the

fact sheet and press advisory, you might want to

do so, either at the break or at the end of the

meeting.  Speakers are going to be called in the

order in which they requested to speak.      

     

Each person is being allotted a total of 15

minutes.  There is a timer on the this table

directly in front of the podium, and there'll be a

green light for the first 13 minutes, a yellow

light for the final two minutes of the 15 minute

period, and then a red light that comes on which

means your time is up.  When the red light comes

on, I'll also stand up to help remind you that the

15 minutes is done.  If you finish talking before

your 15 minute period is up, I'll ask you if you

are willing to accept questions from either the

panel or the audience.  You're under no obligation

whatsoever to do so, but if you would, we could

finish out your 15 minutes with a short Q&A

session.       

     

Any written comments that you want to provide in

addition to oral testimony today must be submitted

to the agency for the record by July 30th.  A full

transcript of today's hearing will be available in

the docket in about three to four weeks.  We'll

also give members of the audience an opportunity

to pose questions to the EPA panel, which I'll

introduce in just a minute.        

     

Three by five cards were distributed when you

checked in.  We also have additional three by five

cards right here.  You can use them during the

presentations by the various speakers from the

public to make notes that you want to ask the

panel and at the end of the morning session, we

will collect those and we'll distribute them to

the appropriate people on the panel.    

     

To the extent that we can answer a question,

please remember that anything that's asked today

is essentially a question for the public record,

and if we can't respond today, we would respond in

our response to comments which will be provided in

a few months.  

     

The panel today, other than myself, consists of

Steve Heare, Hugh Davis, Elizabeth McManus, Guy

Tomassoni and Paul Balserak.  

     

We hope to be able to finish prior to lunch. 

Sometimes speakers don't go the full 15 minutes

and, if that's the case, we'll probably finish

early.  However, we will take breaks and a lunch

break if needed.    

     

I would ask that everyone carefully watch their

step when they are coming and going from the

podium.  It's about a double step there and if you

don't watch out, you could easily hurt yourself.  

     

And with that, I will introduce Hugh Davis who

will give us a brief overview of the advanced

notice before we start our presentations.    

     

MR. DAVIS;  Good morning.  I have about 10 minutes

and I'm going to provide a brief overview of the

content of the ANPR and explain why we issued it

at this time in 1996 and then also describe to you

what the next steps are for EPA.   

     

There's a large universe of facilities which are

potentially subject to RCRA corrective action,

over 5,000 of them and, as Matt said, the states

and owner/operators have been cleaning up these

facilities for over 10 years and there's been

considerable progress in the program, but we

recognize that there's room for improvement.      

     

There's been a number of concerns which have been

expressed about the program over the years, and

we've heard from many of you in this room,

concerns about the progress of achieving

environmental results, about an over-emphasis on

reports and process rather than actually cleaning

up in the field, clean-up goals that are

unrealistic or impractical, oversight being

excessive or too detailed, and public

participation in some cases not being frequent or

meaningful enough.  

     

In 1984, Congress passed HSWA and the corrective

action requirements, and in 1990, the agency

proposed corrective action regulations which many

of you know as Subpart S. Many in this room

commented on the Subpart S proposal.  In 1993, we

finalized two components of that proposed rule. 

Much of the proposal is used as guidance for

implementing the program.  EPA and the states both

run this program.  At this point, 29 of the states

are authorized to run the corrective action

program.  

     

As Matt said, we've been cleaning up corrective

action sites now for a number of years.  There

have been many approaches tried by states, by

owner/operators, by communities, by EPA.  There

are a lot of models out there that we can look at. 

It's a very opportune time to step back and to

look at what has been done and to evaluate it and

work towards improvements in the corrective action

program and to evaluate the program more on

environmental results.  This effort is what we

call the Subpart S Initiative.     

     

We set five objectives for this initiative.  The

first one is to be more consistent and holistic in

our approach towards cleaning up individual sites. 

Issues that you are familiar with, many of you,

depending upon which regulatory pathway you're

heading down towards doing clean-up, whether it's

Subpart F for regulated units or Subpart S,

whether it's closure, post-closure, Superfund or

RCRA.  These are different paths, and we'd like to

move towards a more holistic approach towards

clean-up.      

     

The second one -- that clean-up expectations are

protective and also are practical, that we shift

more of the responsibilities for clean-up to the

regulated community away from the regulator and

more onto the regulated community which bears the

ultimate responsibility for cleaning up hazardous

waste sites.  That we focus on opportunities to

streamline and reduce costs and regarding public

participation, that it is more frequent in the

process and is more meaningful.    

     

So the advance notice of proposed rulemaking is

the first step then in this reassessment of the

Subpart S Initiative and, as Matt said, published

May 1 and there are copies in the back for those

of you who don't have one at this point.     

     

There's three main purposes that we have in the

ANPR.  The first one is to open a dialogue.  This

meeting today is one step in that process of the

dialogue.  The ANPR introduces a strategy for the

Subpart S Initiative for assessing the program,

for conducting outreach, some sort of balance

between finalizing elements of the 1990 rule,

reproposing new elements, and developing guidance. 

And then the ANPR seeks comment on this strategy,

comment on how the program is being implemented

and also is looking for information to help us

improve the program.     

     

The second purpose of the ANPR is a large section

of it is devoted to how the program is currently

being implemented and the changes such as the

stabilization initiative, environmental

indicators, these kinds of things, changes that

have taken place since the 1990 proposal.    

     

And then the third purpose is to emphasize areas

of flexibility in the program as it can currently

be implemented.     

     

The ANPR describes the relationship of the Subpart

S Initiative to a number of ongoing agency

activities.  Probably the one that is most

frequently asked about is how does it relate to

the HWIR-media effort.  Just a reminder that the

Hazardous Waste Identification Rule for media --

there's a public meeting is tomorrow in this room

at the same time.  Also, we frequently get asked

whether we're coordinating these two activities. 

Both the HWIR-media and the Subpart S Initiative

effort are both in the same branch, in Bob Hall's

Corrective Action Branch, which helps with

coordination.       

     

Regarding how the two are related.  They're

complementary.  The HWIR-media Rule addresses the

management of materials that are generated during

site clean-up. The Subpart S Initiative is broader

and it addresses larger issues of site

remediation.  When to clean up, how to clean up,

how to set clean-up goals.  These kinds of issues. 

Another key question that comes up is what about

potential statutory changes.  I can't really say

anything definitive at this point except that if

they occur they will obviously have a large effect

on what we're doing.     

     

In RCRA at this point, we're looking at more

limited reforms that are presently on the Hill. 

The one for RCRA right now looks similar to

HWIR-media and would address the management of

remediation waste.  On the Superfund side, again

it's hard to say what's going to happen and when,

but it will likely be much broader, more sweeping,

and look at more fundamental aspects of clean-up

such as how to do risk assessments, how to select

remedies, and these sorts of things.    

     

As far as our next steps go, the comment period is

over on July 30 of 1996 and we are going to be

assessing comments that we receive and your

testimony and we look forward to hearing that. 

We're going to be assessing these, as I said, and

then developing a strategy for what's the most

appropriate thing to do from here on to improve

the corrective action program.  So we're going to

be looking at finalizing perhaps elements of the

1990 rule, new rule, reproposal, and guidance

development, looking at what the appropriate

balance is between those types of vehicles.  

     

So again, thank you all for coming and we look

forward to hearing your comments and to answering

any questions that you might have.      

     

MR. HALL:  Thank you.  With that, I'll call our

first commenter this morning, Larry Bone from Dow

Chemical.      

     

MR. BONE:  Yes.  Good morning.  My cab just

arrived so I come shooting in here and jump right

on the stage, I guess.  My name is Larry Bone, and

I'm Manager of Environmental Remediation for Dow

Chemical.  As such, I've been involved in Dow's

remediation effort since 1980.  I have personally

managed remediation under a lot of programs: 

Superfund, RCRA corrective action, and about every

conceivable version of a state program.  I'm here

today to speak on behalf of the Chemical

Manufacturers Association (CMA).   

     

CMA believes that the agency's Subpart S efforts

must focus on opportunities to streamline and

reduce cost and to be directed at protective,

practical clean-up expectations.  Achieving these

two objectives will help to ensure that corrective

actions will be accomplished more quickly, with

less controversy, therefore eliminating the

aspects that are receiving the most criticism.    

     

While it's hard to disagree with the goal of

closely coordinating RCRA corrective action with

Superfund, using the fatally flawed Superfund

Program as a model for RCRA corrective action is

certainly not the way to go.  Such a direction is

inconsistent with at  least one of the EPA's

stated objectives.  That is streamlining the

process and reducing cost.  Indeed, one of EPA's

strongest suggestions, however, is to focus a

corrective action program on compliance by using

clear and measurable performance standards rather

than the present prescriptive process.       

     

While we believe that, if implemented correctly, a

performance-based system could allow the

corrective action program to rise from the mire of

endless review and revisions that's reduced the

progress to a snail's pace for RCRA corrective

action and, frankly, even more so for Superfund. 

In this regard, EPA should either abandon its

earlier philosophy that Subpart S should be an

analog of CERCLA's National Contingency Plan

(NCP), which was announced in the 1990 proposal,

or the other thing to do would be to undertake to

significantly revise the NCP to incorporate such

things as performance-based standards as well as

other reform since, as it now stands, the NCP is

the epitome of a prescriptive rule and endless

bureaucracy.   

     

We note, however, while these two rules are

directed at similar objectives, they really serve

somewhat different purposes.  The NCP not only

provides a prescriptive process for conducting

remedial activities, it's also a guide post for

cost recovery actions.  This difference may

require that the agency adopt at least a somewhat

different philosophy from the NCP for Subpart S.  

     

     

The challenge that EPA faces in implementing a

performance-based system is developing a process

that allows facilities to perform significant

amounts of work with a minimum amount of oversight

without then being subject to EPA second guessing

at a later stage.  Of course, on the other hand,

while putting in place sufficient safeguards that

the selected remedy satisfies what we think are

three generic criteria.  Namely, 1) that they

address all significant contaminated areas,

contaminants and exposure pathways, and 2) of

course, that they'll protect health and the

environment, and 3) that they comply with all

statutory or regulatory requirements and included

in this we would include public participation.    

     

This system of performance-based standards may

focus only on the Corrective Measures Study (CMS)

or Corrective Measures Implementation (CMI) as is

actually discussed in the ANPR or we believe it

could, in fact should be, extended to the entire

process with the facility then required to

document what it has done that demonstrates

compliance with the performance standards.  We

will be suggesting a more detailed system of

performance standards in our written comments. 

We've been working hard on them.  It's not an easy

task.     

     

EPA is also requesting comments on whether they

should focus the program on a holistic approach to

remediation with less focus on individual solid

waste management units (SWMUs).  CMA is a little

unclear of exactly what this means.  If it means

that the owner/operator of the facility has the

choice to focus its remediation efforts, either on

an individual SWMU or an area of contamination

basis, then CMA certainly can support that.  We

must caution the agency, however, that it can not

conduct its corrective action program untethered

to the moorings of Section 3004(u) of RCRA which

is limited to releases from solid waste management

units. 

     

     

CMA believes that EPA's Subpart S should allow

state programs to substitute for RCRA corrective

action programs and by state programs, I include

the many excellent voluntary programs that many

states have in place or are actually developing at

a rapid pace.  They provide an alternate track for

corrective action sites to follow that will

decrease EPA's administrative burden while

satisfying state policy objectives.  Indeed,

allowing state programs to substitute for RCRA

corrective action could be actually one of the

benefits of EPA using a performance-based system.  

     

     

That is, if up front you could judge that a state

program, if it can be demonstrated that it meets

the generic performance criteria -- actually, I'm

talking about the three things I mentioned before

-- such as we enumerated, then if a facility

completes remediation, of course, under that

program, it could automatically be exempt from

RCRA corrective action.  I think that's what's

already being considered for Texas, if I

understand what's going on right.       

     

Likewise, if a facility could demonstrate that its

voluntary action met these criteria, even if the

state programs wasn't approved, then indeed it

could also not be subject to RCRA corrective

action or satisfy the RCRA corrective action

requirements.  

     

Dow Chemical has had a lot of experience with

these.  We have sites in a number of state

programs, including, at the moment sites and

voluntary programs in at least three different

states with five, I think it is, in the state of

Illinois program.  Our experience says that these

excellent programs result in remedies that are

equally protective of those under RCRA corrective

action, but they allow us to move much more

rapidly with a lot less paperwork and without the

endless cycles of review.     

     

We also have one site in the Region 1 voluntary

corrective action program.  Frankly, it's a bit

early to judge it, but it appears that this will

also allow us to move through the process much

more rapidly.       

     

CMA will be proposing an alternate track for RCRA

corrective action, which is similar possibly to

where Region 1 is trying to go or even more

similar to what a lot of people are doing in the

voluntary programs, in our written comments.      

     

Land use considerations are another important

aspect of RCRA corrective action.  We need to

remember that corrective action sites are active

manufacturing sites almost entirely, and they will

remain so.  It's often impossible and almost

unnecessary, in fact it's quite counterproductive,

to clean up such sites to residential standards. 

This should actually be a starting assumption for

corrective action sites.  That is that they will

remain industrial.  Early recognition of this fact

could save lots of time and money during all

phases of the process.   

     

In addition to these comments, CMA will present

comments on additional issues in its full written

comments, but a brief preview of these.  The point

of compliance issue.  We believe that the present

point of compliance for ground water, that is at

the SWMU boundary, for example, is unnecessary,

impractical and frankly is misleading to the

public since in the overwhelming majority of sites

it's simply not attainable, at least in hundreds

of years, to clean up ground water to those

standards that are set.       

     

Instead, ground water goals, we think, should be

directed at remediating contaminated areas in a

flexible manner on a site specific basis, taking

into account technical feasibility and reasonable

remedy selection criteria.  These, for ground

water, should be consistent with the expected

timing and use of such ground water and,

furthermore, keeping clean unusable aquifers so

that they're available when they're needed.  

     

Another comment.  Financial assurance.  EPA's

requirements for financial assurance must remain

flexible, and that's one of the comments you asked

for, and geared to the corrective action being

implemented at the site.  That is, the actual

corrective action that's going on at the site and

not some imaginary walk-away remedy.  Corrective

action then must be financed by ongoing, future

cash flows rather than an up front full

commitment.   

     

     

Finally, a brief comment on public participation. 

CMA fully supports public participation

requirements in corrective action.  We suggest,

however, that consistent with our comments

endorsing a performance-based approach and the

sentiments of the Association of State and

Territorial Solid Waste Management Officials

(ASTSWMO) as was  expressed in a letter for the

hearing for Senate bill 1274 that EPA allow

flexibility of how public participation is

accomplished.  

     

That's the end of my prepared comments.

     

     

MR. HALL:  Are you willing to accept questions?

     

     

MR. BONE:  Yes.  Give it a try.

     

     

MR. HALL:  Any questions?

     

     

MR. BONE:  I'm probably mainly preaching to the

choir here.    

     

[There were no questions.]

     

     

MR. HALL:  The next speaker will be Lowell Martin

of Morgan, Lewis and Bockius representing the RCRA

Correction Action Project.    

     

MR. MARTIN:  Well, I guess I'm another member of

the choir.  At any rate, good morning, ladies and

gentlemen.  I'm here today on behalf of the RCRA

Corrective Action Project.  The RCRA Corrective

Action Project, or RCAP, as we call it, is a group

of companies dedicated to helping foster timely,

cost effective, and orderly implementation of

EPA's RCRA Corrective Action Program.  Project

members include Air Products and Chemicals, Allied

Signal, AT&T, Bethlehem Steel, DuPont, Kodak, Elf

Atochem, GM, W.R. Grace, Hampshire Chemical, IBM,

Pfizer, U.S. Steel, United Technologies.     

     

Today I want to cover three fundamental

prerequisites that the project members view as

necessary to improve the efficiency and

effectiveness of remediation under the Corrective

Action Program.  First is a risk-based approach

for the program using plausible exposure and

future land and water use scenarios in each step

of the corrective action process.  Second is use

of performance criteria with streamlined

procedures rather than prescriptive command and

control standards to guide and assess corrective

action progress.  Lastly is phased financial

assurance requirements.  

     

By EPA's own estimates, more than 5,000 facilities

are subject to the corrective action requirements. 

The cost to the nation of this effort is

potentially staggering.  EPA's Regulatory Impact

Analysis (RIA) for the 1990 Subpart S Proposal

estimated that the program could cost from $7

billion to $42 billion.  The University of

Tennessee study of national remediation Costs

estimated a range of potential corrective action

costs under current policies of $170 to $377

billion with a best guess of $234 billion.        

     

Nevertheless, project member companies are fully

committed to a vigorous environmentally beneficial

program.  The project members are highly

encouraged by the flexible management philosophy

outlined in the ANPR.  Risk-based decision making,

focus on results, prioritization for the

stabilization initiative, performance goals, and

phased corrective action.  However, the project

also cautions EPA that the corrective action rule

must take into account the additional flexibility

that could be offered by other ongoing rulemaking

such as the HWIR-media rule which will undoubtedly

have a significant impact on the corrective action

program.   

     

     

Now, as to plausible exposure and future land and

water use assumptions, the project members are

encouraged by EPA's recognition that overly

conservative residential exposure assumptions as

the driving force behind each step in the

corrective action process may not, in fact, we

believe will not, be appropriate for many

corrective action facilities.  From any initial

determination that further investigation is

warranted through selection of a remedy, if

necessary, the agency must incorporate plausible

exposure and future land and water resources use

scenarios to achieve its goal of remediating RCRA

sites in an expedited, protective, and cost

effective manner.   

     

In most cases, RCRA corrective action sites are

zoned for industrial use, thus utilizing national

numerical thresholds based on residential exposure

scenarios as a trigger for further study, such as

EPA's Superfund Soil Screening Level (SSL)

Guidance appears to envision, doesn't make sense. 

Rather, the agency should address the need for

further investigation on a site specific basis

that takes into account plausible future uses.    

     

While we recognize that for the sake of efficiency

screening levels do need some degree of 

standardization, they also need to be considered

in light of a reasonable range of site specific

data on land use and water resource use, for

example, to be of any real utility.  If such

screening tools are too inflexible, they will

seldom serve to actually screen, differentiate, or

prioritize areas on a site that are in need of

further investigation.   

     

In addition, we caution that generic screening

levels cannot serve as the basis for quote/unquote

"preliminary or final remedial decisions" which

must be site specific and reflective of real

assessments of potential risks. 

     

     

The focus on risk assessments at RCRA facilities

undergoing corrective action should be on real

impacts on real receptors.  The utility of a risk

assessment in decision making is dependent upon it

being a realistic, site specific evaluation of

potential exposures and attendant risks. 

Otherwise, the result will be the sort of

unrealistic hypothetical risk evaluations that

have been the target of so much criticism in the

Superfund program. 

     

     

The corrective action program must not repeat the

quote "Superfund experience" unquote, which has in

many situations resulted in treatment with no

corresponding human health or environmental

benefit.  That is, treatment for treatment sake. 

Remedial goals and decisions must be truly

risk-based and site specific to achieve

protective, timely, and cost effective

remediation.  Deriving a clean-up goal from a

generic risk algorithm does not make it

risk-based.  Remedial decisions should be based on

the realistic potential risks posed by a site and

should take account of the transport and fate of

contaminants, realistic land and water uses, and

potential receptors. 

     

     

We're encouraged that the agency is beginning to

move in this direction and urge that realistic

risk evaluations become the basis for corrective

action remedy decisions.      

     

One element of risk that clearly needs to be

realistically evaluated is ground water use. 

Although the RCRA Program in general is designed

to be a proactive, protective program, the

corrective action component is remedial in nature. 

Therefore, where ground water contamination is

present at a site undergoing corrective action, a

practical, real world approach must be taken. 

Such an approach involves two steps:  a

determination of actual versus conceivable use of

ground water as a drinking water source and the

likely timing of such use.    

     

The timing and nature of the use and the movement

and discharge of the ground water can then be

factored into a risk evaluation that will consider

realistic potential risks by consideration of

contaminant fate in transport and potential

receptors.  Only then can reasonable decisions be

made about when and to what extent contaminated

ground water needs to be addressed.     

     

The experience of the Project members to date

indicates that full scale restoration of ground

water is often technically impractical as well as

frequently cost prohibitive.  However, where there

is a risk-driven need to address ground water, the

full range of remedial approaches should be

considered including containment, pump and treat,

natural or enhanced in situ attenuation, point of

use treatment, and alternative water supplies with

technical practicability and cost as key elements

of the remedial decision. 

     

     

Nevertheless, even in some situations where ground

water remediation is deemed appropriate, achieving

desired numerical standards will ultimately prove

to be technically impracticable.  The agency has

the flexibility to address such situations

including using appropriate points of compliance. 

For example, a facility boundary, natural

attenuation and technical and practicability

waivers.  The Project is encouraged by the

agency's recognition that these tools exist and

its suggestion that some other quote "interim

goals" unquote could also be employed to measure

remedial progress.       

     

Finally, as noted previously, many, if not most,

RCRA sites are zoned for industrial use and will

likely remain that way for the foreseeable future. 

Use of residential exposure assumptions to drive

investigations and remedy selection is clearly

inappropriate in these circumstances.  The Project

commends the agency for its recognition that

reasonable future land use assumptions should be

assessed and used to focus corrective actions. 

Incorporation of nonresidential use assumptions

will go a long way toward achieving the agency's

goal of cost effective and protective remediation

as well as efficient uses of resources.      

     

Moreover, the agency has several tools available

to it to ensure that if a nonresidential future

use scenario is employed, the use will remain

consistent with that scenario.  For instance,

institutional controls such as deed restrictions

could be used to ensure that future use will

remain industrial.  To address those few

situations where it is subsequently desired to

upgrade a property to residential use, EPA could

require that the entity desiring to accomplish the

upgrade fund any additional remedial measures

necessary to ensure that the higher use remains

protective of human health and the environment.   

     

Now, on to the second major theme which is

performance criteria.  As EPA recognizes in the

ANPR, performance criteria can and should be used

as a measure of results achieved during the

corrective action process.  For example, the

agency stabilization concept has a clearly

enunciated set of performance standards to control

or abate immediate threats to human health and the

environment from releases and/or to prevent or

minimize the spread of contaminants.  Abating

immediate threats and minimizing the spread of

contamination are clearly performance goals that a

willing owner/operator could apply in lieu of

normal, prescriptive, and overly detailed

standards and requirements with minimal agency

oversight. 

     

     

Maintaining this original practical focus for the

stabilization concept should be a cornerstone of

any proposed revisions to the Subpart S regime. 

Employing performance criteria would improve the

timeliness and effectiveness of the corrective

action program by shifting the focus from one of

process -- for example, the submittal and approval

of the numerous plans and reports required by the

program, delineation of contamination to

background even where health-based clean-up levels

are to be used, for example -- to one of action,

controlling the migration of contaminated ground

water toward a well field or mitigation of a

short-term potential risk.    

     

The Project is encouraged that the agency is

considering the use of performance-based criteria

at two critical junctures in the corrective action

process:  corrective measures studies (CMS) and

corrective measures implementation (CMI).  Indeed,

in some situations use of appropriate presumptive

remedies will effectively streamline the

corrective measures study process.  Allowing a

facility owner/operator to design and implement

clear remedial goals will go a long way in

fostering timely and effective clean-ups.    

     

The Project is also encouraged by the agency's

recognition that it needs to tailor the nature and

degree of its oversight to the type of corrective

action initiatives being undertaken.  The slow

pace of the program is attributable in part to the

agency's current approach to oversight. 

Voluminous documentation of every step in the

corrective action process from work plan to report

is submitted to the agency.        

     

The agency historically has then scrutinized every

element of the documentation, regardless of the

experience and ability of an owner/operator and

its consultants, to effectively carry out the

relevant activities.  These reviews often take

much longer than the actual work and are a

mis-allocation of agency resources.     

     

The agency should tailor its involvement to the

nature of the activity being undertaken -- for

example, site characterization, risk assessment,

or remedy implementation -- to ensure that

additional risks are not created and that the

process is moving forward but should not act as a

co-consultant.  The burden should be on the

regulated entity to demonstrate that it has met

the performance goals with EPA retaining the

ability to require additional work where an entity

falls short.        

     

One of the benefits of such an approach to

oversight would be a greater opportunity for EPA

to accept into the program those wishing to

conduct voluntary or accelerated corrective

actions under the agency's oversight since the

agency's resources would be less burdened with

unnecessarily detailed oversight activities.      

     

The final issue I'm going to address this morning

is phased financial oversight.  The Project has

long emphasized that requiring an owner/operator

to demonstrate the ability to fund the full cost

of RCRA remedial activities at the inception of

the process could severely constrain a company's

access to capital for other production-related

ventures.  Indeed, even some of our largest member

companies believe that they could have difficulty

maintaining access to capital for normal business

operations if financial assurance for the full

cost of RCRA remedial activities has to be

demonstrated up front.   

     

There's an answer to this dilemma, however, that

serves both environmental and economic goals. 

Assume that a remedy has been selected, whether

conditional or final, and that it has an

extraordinary projected cost based on use of

currently available technologies.  Now let us

assume, as we must, that corrective action

requirements will be applied uniformly throughout

each affected segment of the industrial economy. 

Further, let us assume that remedial technologies

will continue to evolve like they have in the last

decade.   

     

Given these assumptions, market forces will assure

that the costs of corrective action are felt

equitably across each industrial sector and the

strong likelihood exists that further evolution

and clean-up technologies ultimately will allow

meeting remedial goals with less or overall

expenditures than originally estimated.      

     

Under these circumstances, the agency should use a

phased rolling average mechanism whereby an

owner/operator would demonstrate the ability to

fund remedial activities for the next several

years which would assure that such activities

would not be halted for lack of funding.  Such

phasing will avoid constraining access to capital

for operational purposes, thus avoiding the

potential for business failure such constraints

could otherwise cause. 

     

     

In closing, the RCRA Corrective Action Project

believes that to move the corrective action

program forward, the program must be phased,

practical, and focused on real impacts on real

receptors.  The Project urges the agency in the

strongest terms not to model a corrective action

program after the costly and slow paced Superfund

Program.  Rather, a holistic approach to

corrective action including site specific risk

assessments, performance standards, and reduced

agency oversight where appropriate will increase

the efficiency and effectiveness of corrective

action clean-ups.        

     

The RCRA Corrective Action Project offers its

continuing support and assistance to the agency in

its effort to remediate RCRA sites in an

expedited, protective, and cost effective manner. 

Thank you.     

     

MR. HALL:  Thank you.  Are you willing to accept a

question?      

     

MR. MARTIN:  Sure.

     

     

MR. HALL:  Questions?  [There were no questions.] 

Thank you.     

     

The next speaker this morning is Mark Gordon from

the state of Wisconsin representing the

Association of State and Territorial Solid Waste

Management Officials (ASTSWMO).    

     

MR. GORDON:  Good morning.  My name is Mark

Gordon.  I'm a Unit Leader for Corrective Action

and Planning in the Hazardous Waste Management

Section of the Wisconsin Department of Natural

Resources.  I also chair ASTSWMO's Corrective

Action and Permitting Task Force which was

organized as a collective state effort to provide

review and comment to EPA on the Subpart S

rulemaking initiative.        

     

On May 23, 1996, the task force sent a memo to

State Hazardous Waste Program Managers requesting

specific input on numerous issues identified in

the advance notice of proposed rulemaking.  This

all state review is intended to confirm that the

major issues identified by the task force are

indeed the most critical issues for state program

managers to comment on, as well as to obtain

feedback on a series of specific questions related

to the Subpart S initiative.  The responses

received will be used by the task force to develop

detailed written comments on the ANPR.       

     

Since the process of obtaining comments is still

in the early stages, it will not be possible for

me to address today a number of the issues that

the ANPR has identified.  However, since the

development of the Subpart S corrective action

rules have been ongoing for some time, there are

several issues where significant discussions that

have already taken place and where we feel

confident that these remarks represent common

themes to a majority of state waste managers.     

     

First, we'd like to express our appreciation to

EPA for organizing several Subpart S round table

meetings with the states to discuss the options

available for finalizing this rule as well as for

ultimately deciding to proceed with this ANPR in

order to take advantage of the experience that's

been gained after almost 12 years of

implementation of the corrective action program.  

     

     

Secondly, we'd also like to thank EPA for allowing

the states to be fully involved with the Subpart S

initiative.  There's a significant amount of

interest in this project at the state level, and

we would like to request that state waste managers

be allowed to continue our involvement in any rule

drafting activities as full co-regulators in a

manner that's similar to the involvement that we

have had with the HWIR rules as well as the

definition of solid waste effort.       

     

With respect to specific comments on the ANPR,

ASTSWMO has previously gone on record regarding

the issue of finalizing portions of the July 1990

proposal indicating that we strongly recommend

that EPA re-propose the Subpart S rule in its

entirety and not attempt to finalize it without

further public comment.  Since that time, there

have been numerous discussions between EPA and

state waste managers on this issue in particular. 

Based upon recent feedback, the states still

generally believe that a majority of any revised

rule would need to be re-proposed prior to

promulgation.  State waste managers strongly

support the idea of dealing with the Subpart S

initiative using a holistic approach, as EPA is

currently proposing, rather than trying to deal

with certain pieces individually. 

     

     

State authorization is a critical component of the

RCRA Corrective Action Program and a number of

states have expressed concern regarding the

current process used to authorize states to

implement the program.  In the July 1990 proposal,

EPA invited comment on the use of an expedited

process to authorize states for the new provisions

of the Subpart S rule.  This interim authorization

process would allow states that have already

received authorization from EPA for the HSWA

corrective action rule to continue to be the

primary implementers of the program and have the

responsibility for issuing permits containing

corrective action remain with the state and not

revert back to EPA.      

     

As with the July 1990 proposal, the ANPR requests

comments on the use of an expedited process for

those states that have already been authorized for

corrective action.  ASTSWMO strongly supports the

implementation of an expedited process so that

authorized states can continue to implement their

programs without major disruptions.     

     

The issue of authorization in general has been a

very important one for the states.  EPA has a

number of major rulemaking initiatives underway in

addition to the Subpart S ANPR, that have or are

requesting comments on the authorization process. 

Members of the task force are virtually unanimous

in their request to streamline authorization. 

This is especially true for programs with a solid

track record of effectively implementing RCRA

corrective action.       

     

We, therefore, strongly urge EPA to adopt a

flexible self-certification authorization process

for this rule to capitalize on states' expertise

in this area.  We would be happy to work with EPA

to develop a workable self-certification approach.

     

     

Thank you for the opportunity to present these

initial comments.   

     

MR. HALL:  Are you willing to accept questions?

     

     

MR. GORDON:  I would.  I just want to make one

caveat and that's that a number of the issues that

were raised in this ANPR have not been fully

discussed by the states and we haven't yet

developed a complete position on that, but with

that caveat, sure.  

     

MR. BONE:  Yes.  What's your position on allowing

voluntary programs?  And I know you have an

excellent one in your own state, and I think yours

qualifies for exemption under Superfund if you

complete it.  What's your opinion on allowing that

to also satisfy RCRA corrective action

requirements?  

     

MR. GORDON:  Well, I guess I could answer that two

ways.  I could answer it from our state's

perspective.  From our state's perspective, from

Wisconsin, I guess we believe that use of state

clean-up programs to implement clean-up should be

allowed and, in fact, we've done that for some

facilities that are also subject to RCRA

corrective action.  Especially those that would

fall under the interim status category.  We've

already used state clean-up programs to address

those.    

     

As far as ASTSWMO's overall position on that,

that's an issue that the states really run the

spectrum on.  We've got a number of states that I

think are in general support of that type of

approach.  There are other states that have some

general concerns.  So it's going to be something

that we're asking for comment on from this 50

state review that we're doing and with the intent

of trying to finalize an overall state position on

that.     

     

MR. BONE:  What's the nature of the concern of the

other states?  My original question related to

using state voluntary programs to satisfy RCRA

corrective action, and I specifically asked about

Wisconsin.  My follow-up question. Mr. Gordon

stated that some of the states had some problems

with that, and I just asked what the nature of

those problems were.  

     

     

MR. GORDON:  As far as the nature of those go, I

think there are several states that are concerned

about potential statutory problems, especially for

facilities that need to obtain a permit for using

voluntary programs.  It's more of a statutory

concern.  As far as the details of that go, I

guess I can't answer it any more specifically than

that.     

     

MR. HALL:  Additional questions? [There were no

additional questions.]  Thank you very much.      

     

We were scheduled for a break, but we're moving

along so swiftly that I think I'll just continue. 

The next commenter is Peter Day from Phillips

Petroleum Company representing the American

Petroleum Institute(API). 

     

     

MR. DAY:  Good morning.  My name is Peter Day and

I work for Phillips Petroleum Company as Senior

Environmental Science Specialist.  In that

capacity, I've been involved in a number of RCRA

corrective action activities administered by both

state and federal authorities and occurring at

both permitted and interim status facilities.     

     

EPA is to be commended for resuscitating the

Subpart S rulemaking process.  While others might

have a different opinion, I'm leery of using a

proposed rule as guidance, especially when

multi-million dollar investigations, evaluations,

and remedial actions are at stake.  This

unfortunately has been the situation since

modifications to Subpart S were proposed in July

of 1990 almost six years ago.      

     

RCRA corrective action now, as it did then,

requires significant modifications to achieve

protective or practical clean-up expectations,

streamline implementation, and shift more of the

responsibilities for developing and achieving

clean-up goals to states and the regulated

community.     

     

Today, I'm presenting comments on behalf of the

American Petroleum Institute (API) where I

currently serve as chair of its RCRA Issues Task

Force.  As many of API's members have sites that

are subject to corrective action, this rulemaking

will have a significant impact on the petroleum

industry.  Because of the time allowed, these

comments are necessarily cursory and at this date

remain preliminary.  Obviously, our detailed

written comments will follow.      

     

My remarks will address three main areas.  1)

thoughts on RCRA corrective action goals and the

process necessary to attain those goals, 2) some

specifics relating to the need for flexibility,

administrative streamlining and site specific

risk-based decision making and 3) the Subpart S

rulemaking process and its relationship to other

pertinent RCRA rulemakings.   

     

First general topic is thoughts on the RCRA

corrective action goals and the approaches

necessary to attain those goals.  In its May 1st

ANPR, EPA solicits public input on a variety of

issues and concepts associated with the corrective

action process including new approaches to

expedite and simplify facility clean-ups.  If RCRA

corrective action is to expedite clean-ups at

thousands of sites potentially subject to the

program, it should first lay out the fundamental

premises that will make the program successful.        

     

API believes: 1) that there should be one

implementer of a corrective action -- and I mean

that in this sense to be generic -- corrective

action program at a facility subject to RCRA

corrective action.  Duplicative requirements

discourage voluntary efforts, slow the pace of

clean-up, and can result in solutions that reflect

a lack of common sense; 2) Clean-up should be

predicated on the use of a risk-based site

specific approach; 3) Performance rather than

process-driven goals are critical.  Flexibility

and innovation must replace detailed regulations

and guidance documents; 4) EPA should foster

consistency among its CERCLA and RCRA clean-up

programs in appropriate areas of overlap while

recognizing their statutory independence; 5)

Clean-up expectations should be the result of

risk-based decision making based on good peer

review science; and 6) Approaches and techniques

for the conduct of corrective actions rather than

the prescription of results should become the new

program focus for EPA.   

     

     

It's clearly necessary at this time to move

corrective action from a process-driven, command

and control program that perpetuates delays in

clean-up to a vital program that incorporates the

common sense and flexibility necessary to achieve

cleaner, cheaper, and smarter results.   

     

     

The next topic I'd like to discuss, as I indicated

in the beginning, are some specifics relating to

the need for corrective action program

flexibility, administrative streamlining and site

specific risk-based decision making.  Really, this

is a sequence of seven short subjects.  In

general, API has significant concerns with the

corrective action ANPR.  Many of the same concerns

were voiced five and a half years ago when API

first commented on the proposed Subpart S

corrective action rule.  

     

The first short subject is conditional remedies. 

API strongly supports the use of conditional

remedies.  Actively managed properties with viable

owners and operators who could control property

access and operate under the purview of other

regulatory programs that ensure worker protection

pose a lesser environmental and health risk than

do uncontrolled or abandoned sites such as those

addressed by CERCLA.  It's, therefore, appropriate

to allow clean-ups at RCRA facilities to be phased

in over time commensurate, of course, with the

risk to be addressed as long as certain

stabilization conditions are met.  

     

Secondly, a short subject on voluntary corrective

action.  API agrees that voluntary clean-ups are

environmentally beneficial as they typically can

be implemented on shorter time lines than those

prescribed by the formal RCRA corrective action

process.  API encourages the use of state

voluntary clean-up programs and independent or

self-implementing mechanisms that could allow an

operator to meet performance-based milestones

without direct, step-by-step oversight by a

regulatory agency.  The flexibility to conduct

corrective actions using the regulatory mechanism

most appropriate for an individual facility and

then have it accepted as a substitute for formal

RCRA corrective action should be a cornerstone of

the RCRA corrective action program.  The

appropriate clean-up requirements must be

developed on a site specific basis.  This is only

feasible, however, if a corrective action program

is performance-based, flexible, and does not

require a strict adherence to detailed federal

guidance documents or regulations.      

     

Land use.  API supports clarifications that will

ensure that current, reasonably anticipated future

land use is the basis used to determine the

selection and timing for remedial actions at

corrective action sites.  API agrees that

nonresidential land use assumptions are

appropriate for many corrective action clean-ups. 

The conservative land use assumptions long favored

by the agency must be abandoned so that clean-ups

address the real risk associated with the

facility.      

     

Point of compliance for ground water.  API agrees

that points of compliance -- that is, the

locations at which media clean-up levels must be

attained -- have significant implications for the

scope, magnitude, and cost of corrective actions. 

API believes the point of compliance for ground

water contamination should be determined on a site

specific basis after consideration of all

applicable factors.  Limiting the point of

compliance to a specific boundary, whether it be

the unit boundary, the facility boundary, or

throughout the contaminated plume, precludes the

thoughtful implementation of cost effective,

risk-based remediations.      

     

Solid waste management units or SWMUs.  API

supports allowing solid waste management units,

SWMUs, to be combined into a single clean-up

effort when feasible and appropriate.  However,

the agency should not unilaterally exercise

authority over areas that are not solid waste

management units.  EPA, however, should allow RCRA

regulated units to be combined with other SWMUs

into a single clean-up effort as proposed in the

1994 post-closure rule which has yet to be

promulgated.        

     

When appropriate, SWMUs should also be able to be

easily incorporated into appropriate clean-ups

being or contemplated being administered by

another regulatory agency.  The flexibility to

combine units artificially segregated by different

regulatory regimes into a single remedial program

should be a primary goal for EPA.  The protection

of human health and the environment, rather than

protection of jurisdictional turf, should be a

commonly held and cooperatively practiced goal of

state and federal regulatory agencies.       

     

As an aside, this is probably one of the most

frustrating parts of being actively involved in

corrective action sites is the wrangling that goes

on what the classification of a unit is, whether

it's a SWMU or a regulated unit; therefore, who

has authority to require whatever their

requirements are for completing the clean-up, even

though they might be environmentally exactly the

same and have the same ultimate common sense

solution.      

     

Appropriate consistency with CERCLA.  API

recognizes the value for some consistency between

CERCLA and RCRA remedy selection and remedial

expectation processes once the need for and the

extent of corrective action is determined. 

Procedures that are common in variant forms to

both programs can and should be aligned.  Too

often owners and operators are subject to

redundant or inconsistent methodologies and

requirements.  Requirements singular to RCRA or

CERCLA must not be adopted for the sole purpose of

promoting constituency between the programs unless

and until they're expressly authorized by

Congress. 

     

     

RCRA and CERCLA were purposely created to address

different types of sites.  In most cases, because

of circumstances such as continuing operations

subject to regulatory requirements, the ability to

directly implement and maintain institutional

controls, predictable future land use, and active

facility management oversight, RCRA corrective

actions sites should be entitled to even more

flexibility than CERCLA sites for many aspects of

the RCRA corrective action program.     

     

Remedy selection.  API recommends a RCRA

corrective action program that includes

flexibility in the process.  Within the ranks of

its own members, differing approaches to remedy

and selection and implementation exist between

companies and within companies between sites.  In

some cases, selection of a generic or presumptive

remedy, that is an off-the-shelf remedy, would be

desirable.  If a corrective action site contains

contaminants in a setting for which the technology

or technologies have been proven to be effective,

that remedy could be selected without

consideration of an array of corrective action

alternatives or redundant benchscale testing.     

     

However, facility owners and operators should

always have the ability to use risk assessments to

develop tailored site specific clean-up levels. 

     

     

In any case, it should be the responsibility of

the regulated entity to submit its preferred

remedy to the regulatory agency for public comment

and agency approval.  While EPA should have the

ability to reject the preferred remedy for cause,

it should not have unilateral authority to impose

its preferred remedy.  Similarly, EPA should not

have the unilateral authority to modify submitted

plans or reports without sufficient due process. 

     

     

API wholeheartedly supports risk-based decision

making.  This process can be  used to focus site

assessments, categorize or classify sites,

identify no further action thresholds, or help to

establish risk-based clean-up levels.  In

particular, API believes that ASTM E3173995, also

known as Risk Based Corrective Action (RBCA),

shown to be effective in state underground storage

tank (UST) corrective action programs, can have

its applicability extended to encompass Subpart S

corrective action sites.      

     

API does not support the use of standardized media

clean-up levels.  Experience has proven that these

levels are so overly conservative they are useless

except as preliminary screening tools.  Rather

than publishing lists of standardized media

clean-up or action levels, EPA should develop

guidance describing standard remedial clean-up

approaches.  In this way, site specific rather

than generic variable values can be considered.   

     

It should be incumbent on EPA to consider and,

after support of peer review, implement timely,

over-arching modifications to risk assessment and

supporting modeling approaches.  For instance, by

developing attenuation factors that incorporates

the natural biodegradation of petroleum

hydrocarbons.  API feels that EPA has been slow to

acknowledge the body of science, case histories,

and the experience of state regulators, all of

which substantiate the ability of natural

attenuation to reduce the constituent

concentrations of petroleum contaminated media. 

     

     

And finally, I'd like to talk a little bit about

the Subpart S rulemaking process and how it

relates to other RCRA rulemakings.  It's

difficult, without knowing what parts of the 1990

proposal EPA might be inclined to promulgate, to

understand at this late date why comprehensive

Subpart S rulemaking should be promulgated in a

piecemeal fashion.  The ANPR does not clearly

indicate which elements of the 1990 proposal would

be promulgated and which would be jettisoned under

EPA's new approach.  EPA must provide a proposal

which comprehensively sets forth all elements of

the corrective action rulemaking so that all

interested parties have an opportunity to comment.

     

     

Perhaps the elements planned to be promulgated are

already well known to those that were involved by

EPA earlier in the process.  The May 1st ANPR

indicates that direct involvement of the states

and environmental groups was solicited by EPA. 

While EPA met with and received materials from a

variety of industry groups, their input was

apparently not directly solicited.  In the

interest of fair play, API urges EPA to solicit

input from representative segments of the

regulated community at the same time input is

solicited from other non-regulated stakeholders.  

     

Rulemaking flexibility.  Although API will comment

in detail on the HWIR-media Proposal at tomorrow's

public hearing, the ultimate rule will have a

profound impact on how corrective action

remediations are conducted.  Rather than an easy

to understand and implement regulation, the

proposed bright line approach incorporates a

complicated regulatory framework based on waste

concentrations, remediation waste distinctions,

and even the time at which media was contaminated. 

     

     

For what seems to be a relatively simple premise,

that is to develop more flexible standards for

media and waste generated in the course of site

clean-ups, the proposed rule restricts the ability

to bring common sense to clean-ups.  The

Corrective Action Management Unit (CAMU) rule,

which did incorporate flexibility into the

corrective action process, was the only piece of

the 1990 Subpart S proposal actually promulgated,

would be rescinded under HWIR-medial proposal.    

     

Given the mechanisms which EPA ultimately appears

to translate streamlining, flexibility, and

simplification into RCRA rulemakings, API cringes

at the potential for a corrective action rule that

increases program complexity by over-prescription

of the corrective action process.  This in the

guise of simplifying and expediting clean-ups. 

API must be aware of its potential inability to

see the forest for the trees should it attempt to

weave corrective action reform around the outdated

icons that often comprise the EPA RCRA policy.    

     

The ANPR espouses and solicits the right kind of

good ideas, but can they be implemented?  The

agency should take seriously the complaints of the

regulated communities that the flexibility

intended by the 1990 Subpart S proposal, when

implemented by EPA regions and authorized states,

was lost.  That's another of the frustrations that

I deal with in the practical aspects of RCRA

corrective action is that some of the things that

look good on paper don't end up coming out in

reality.  

     

API stands ready to assist the agency in its

promulgation of a risk-based decision making

process that promotes simple, expedient, and cost

effective solutions while ensuring the protection

of human health and the environment.  Let us know

how we can help you solve the root problems that

impede the progress of corrective action.    

     

Thank you very much for the opportunity to speak

before you.  That concludes my comments.     

     

MR. HALL:  Time's up.  Thank you.  

     

The next commenter is Lisa Nakamura from

International Technology Corporation.   

     

MS. NAKAMURA:  My name is Lisa Nakamura.  I'm the

Manager of Regulatory Compliance for IT,

International Technologies, Pittsburgh Office. I

work with many clients that are going through RCRA

corrective action at the present time.  In my

former life with IT before I took this position, I

was in Northern California where I was the

regulatory coordinator for two of IT's own sites,

former TSDs going through corrective action, so I

speak from a unique position today as both a

consultant and as an owner/operator.    

     

EPA presented in the ANPR seven basic operating

principles to guide corrective action program

implementation and development.  As EPA states,

the program is intended to provide flexibility and

facility-specific approaches.  IT strongly

supports these principles and encourages their

endorsement and practice.  However, based on our

experience with EPA regional offices and

authorized states, there is a wide disparity in

the degree of flexibility available to RCRA

facilities.    

     

For example -- and as I'll talk about a little

further in the presentation -- some EPA regions

are very receptive to the concept of application

of voluntary actions and presumptive remedies

during the CMS while others prefer an in-depth

study of the universe of alternatives. 

Application of the seven operating principles will

require experienced and seasoned project managers

within the regulatory offices and adequate support

staff that are able to assess and communicate site

specific risk, accept modifications to standard

protocols such as the corrective action plan or

the CAP, make decisions given the inherent

uncertainty that is associated with environmental

clean-up programs, and finally to remain flexible

and responsive in situations that may be

encountered during implementation.  As we all

know, a RCRA clean-up program is not a

cookbook-type of process, or it shouldn't be.     

     

IT encourages headquarters to provide guidance to

regional staff as well as to the authorized states

such that a truly flexible corrective action

program can be implemented on a consistent basis

between the regions and the states.  IT supports

the concept of voluntary, independent or

self-implementing corrective action.  At present,

interim and/or stabilization measures are truly

the sole vehicle for implementing a corrective

action prior to conduct of the CMS or the CMI

stage.  However, interim measures have

historically been approved by EPA and/or

authorized states to address only actual or

eminent threats to human health or the environment

despite the intended objective of using interim

measures to control or abate and/or to prevent the

further spread of contamination. 

     

     

The perception that a desired activity may be

viewed by the public or an agency as abating an

eminent threat reflects quite negatively on a

facility owner or operator, particularly one that

is working within a sensitive community.  One

route that EPA presented is to accelerate

independent corrective action was use the state

voluntary action programs to facilitate clean-ups. 

While this concept certainly has merit, several

state programs currently will not allow facilities

involved in a state or federal agency-required

clean-up to utilize a voluntary program.     

     

For example, one of my clients in the state of

Ohio is an interim status facility undergoing

clean-up pursuant to a RCRA Section 3008(h) order. 

The state of Ohio voluntary action program, or

VAP, will not allow a facility with an enforcement

order to utilize the flexibility of their program. 

Therefore, this facility is stuck in the formal

and lengthy CMS/CMI process.  This facility, if it

were able to initiate voluntary action, could

facilitate reuse of portions of its property for

light recreation or and/or wildlife preserve.     

     

IT supports the concept of independent third party

oversight for voluntary actions, both to provide a

defensible remedial strategy for agency review as

well as to reduce potential liability to the

owner/operator.  The ability to self-implement a

corrective action program with third party

oversight should be based on site specific

conditions which include the following.  First,

the owner/operator profile such as the compliance

history, its cooperation with the agency,

financial health and responsibility, corporate

incentive to complete corrective action, and

qualifications of the third party reviewer.       

     

Second, the site profile.  What are the short- and

long-term hazards, the degree of risk and

complexity associated with its corrective action,

impacted media and its proximity to receptors? 

The community profile is very important in terms

of the level of involvement and interest.  The

presence of an organized group, in that the

communities establish objectives for corrective

action.   

     

And finally, the agency profile should be

considered in terms of overlapping jurisdiction,

budgetary constraints, schedule constraints, and

staff resources.    

     

Based on our experience, the concept of focusing

less on SWMUs and more on holistic approaches has

merits in terms of expediting facility-wide

corrective action.  In many cases and particularly

at large facilities, corrective measures will be

required on a larger scale than on a unit-by-unit

basis.  For example, contaminated ground water

plumes may be attributed to several sources that

could be addressed as collectively one focus area. 

Investigating and designing remedial strategies

for each individual SWMU is both time- and

cost-intensive and can potentially result in a

difficult ground water monitoring regime.  This

approach may also be less effective as in the vast

majority of cases the SWMU may no longer be the

source or may have been impacted by releases from

other SWMUs.   

     

Toward this end, IT supports the flexibility

inherent in the edge of plume point of

contamination (POC) concept in which ground water

impacts will be addressed on a large scale rather

than unit specific basis.  Establishing points of

compliance at the edge of the unit could in many

cases result in overlapping monitoring

requirements.       

Consideration of potential land use is a concept

strongly supported by IT at its own facilities as

well as by our clients.  Particularly for active

sites in which SWMUs may be located well within

production boundaries, it makes little sense to

clean up to residential use conditions. 

Flexibility in determining potential land use and

in modifying clean-up standards to such levels as

maximum contaminant levels (MCLs) is an option

that will facilitate clean-ups while minimizing

impacts on operations.        

     

Additionally, facilities located in highly

industrialized areas are often faced with the

daunting task of creating an island of pristine

media while surrounded by contamination from other

facilities.  EPA regional staff and authorized

states, however, will need to avoid the perception

that alternative clean-up standards are less

protective of human health and the environment. 

Rather, it should be emphasized to the public that

the standards will be appropriate for the

envisioned land use and it will be protective of

public health.      

     

It is unrealistic and ineffective from a resource

perspective to assume conservative residential

exposure scenarios for mitigation of property

located in heavily industrialized areas. 

Regulatory staff can ensure consistent and

appropriate land use by requiring deed

restrictions stating that land use can only be for

specified purposes.      

     

We strongly encourage EPA, both at headquarters

and at the regional level, to continue designation

of CAMUs until the regulations are superseded. 

CAMU regulations were a major step in facilitating

cost effective, timely, and effective corrective

action remediation and it is discouraging to the

regulated community to have these regulations

superseded.  IT also encourages EPA to fully

grandfather CAMUs that are approved by the time

the HWIR-media regulations are promulgated such

that facilities that complete corrective action

without the requirement or do not have the

requirement to change direction in mid-process.   

     

To that end, a regulatory program must remain in

place in the event that a designated CAMU must be

modified during its active life or during the

post-closure period.  A request to modify a

grandfather CAMU should not result in EPA

disallowing or canceling the designation.    

     

Now I'd like to speak specifically from the

perspective of an owner/operator and share some

success stories.  EPA requested comments on

implementation of the corrective action program. 

IT's Vine Hill Complex located in Martinez,

California was one case study in which EPA,

specifically Region 9, demonstrated flexibility in

acceptability of facility specific approaches to

approving the RCRA Facility Investigation (RFI)

work plan, the RFI, the CMS and the CMI. 

Specifically, areas of flexibility that were

demonstrated by Region 9 and which are encouraged

throughout all regions and within authorized

states are as follows.   

     

Region 9 approved implementation of portions of

the field investigative activities while the RFI

work plan was being finalized.  I should mention

that the Vine Hill Complex was undergoing

corrective action and closure plan approval

simultaneously, so we were dealing with overlap

between Region 9 and the California DTSC.    

     

Approval to use risk assessment methodologies to

address hazards and risks from specific migration

pathways rather than requiring additional

investigations that would prove time and resource

intensive to IT.  Approval to apply CERCLA

presumptive remedies in developing alternatives

for evaluation of the CMS.  Coordination between

IT and the California EPA during corrective action

and closure/post-closure plan approval process. 

Recognition of the point at which additional

investigations and data would not increase the

certainty of decisions, thus allowing the process

to move  forward.  Streamlining of the CMS process

by eliminating the requirement for formal CMS work

plans, thereby expediting preparation and approval

of the final CMS, and streamlining of the CMS

approval process to avoid duplicative processes

that are already being completed by the state as

part of the approval for the closure and

post-closure plan.  

     

In summary, IT has experienced the RCRA corrective

action program, both as a facility owner and

operator and as a technical consultant.  At

present, significant disparity exists between EPA

regional offices and the authorized states in the

degree of flexibility, innovation, and

facility-specific approaches that can be applied

during the process.  This has resulted in many

cases in a protracted and costly effort for both

the facility and for the agency and has not

provided an incentive for innovative or

self-initiated actions on the part of the

owner/operator.     

     

We encourage EPA to promulgate regulations that

provide options for flexibility to both the

agencies and the facility.  EPA is also encouraged

to educate regional staff in authorized states

through guidance memos, training, and a mentoring

program such that a flexible program can be

implemented on a national basis.  Further, the

relationship between the oversight agencies and

the owner/operators has traditionally been an

adversarial one and we encourage the development

of a team concept in which mutual objectives,

schedules, and deliverables are agreed upon.   

     

     

Again, there's wide disparity.  We've worked with

some regions in some states who are willing to

have monthly meetings with us to agree to

schedules and milestones.  We've also encountered

regions and states that want to have nothing to do

with the facility owner/operator until the

deliverable is submitted.     

     

Finally, site specific conditions and potential

receptors should be considered during all phases

of corrective action such that a remedial program

can be designed with realistic and implementable

goals.  I appreciate the opportunity to speak

today.    

     

MR. HALL:  Thank you.  Are you going to accept

questions?  Any questions?  [There were no

questions.]  Thank you.  

     

The last speaker is from the Utility Solid Waste

Activities Group (USWAG), and it's Jim Roewer.    

     

MR. ROEWER:  Good morning.  My name is Jim Roewer. 

I'm the Program Manager with the Utility Solid

Waste Activities Group.  USWAG is an informal

consortium consisting of the Edison Electric

Institute, the American Public Power

Administration, the National Rural Electric

Cooperative Association, and approximately 80

individual operating electric utilities.  We have

the responsibility for addressing solid and

hazardous waste management issues on behalf of the

utility industry.  All together, our members

represent about 85 percent of the total generating

capacity in the United States and service more

than 95 percent of the end users of electricity. 

We formed in 1978 and we've been part of every

major RCRA rulemaking since then.  

     

We plan to present some detailed written comments

on the proposal and today I'm going to provide a

brief overview of USWAG's position on some of the

key issues presented in the advance notice of

proposed rulemaking. 

     

     

As an initial matter, USWAG commends the agency

for its efforts to reform the RCRA corrective

action program.  The development of this advance

notice has been a long process in which USWAG has

participated from the beginning.  Although most of

the 1990 Subpart S proposed rules have never been

promulgated as final rules, we found that they're

routinely followed by the regions as though they

were binding regulations.  Unfortunately, our

members tell us that while the regions have

dutifully followed the letter of these proposed

rules, many of them have overlooked the flexible

spirit contained in the 1990 preamble.  

     

This ANPR is an important step towards closing the

gap between the flexible intentions of EPA's

architects of the RCRA corrective action program

and the rigid application of those that are

charged with implementing the program.  USWAG is

particularly appreciative of the agency's efforts

to incorporate the lessons learned since 1990 into

the corrective action rulemaking.  

     

In light of the limited time that I have this

morning, I won't address each of the important

issues that are addressed in the advance notice. 

Instead, my comments will highlight three

fundamental themes that should be at the forefront

of EPA's thinking during the development of the

corrective action rules.  Incorporating these

themes into the rulemaking will significantly

enhance the overall success of the corrective

action program.     

     

First, EPA should continue to emphasize the need

for a flexible, facility specific approach to

corrective action.  The agency estimates there are

more than 5,000 facilities that are subject to

RCRA corrective action which is over three times

the number of sites on the Superfund national

priorities list (NPL).  In light of the variety of

facilities that will be undergoing corrective

action and the wide range of site specific

circumstances, flexibility must be one of the

fundamental principles that guide the development

and the implementation of the corrective action

program. 

     

     

USWAG therefore urges EPA to build flexibility

into the corrective action program wherever

appropriate.  For example, EPA identifies a number

of basic operating principles which, if followed,

would provide program implementers and the

regulated community significant latitude to

respond to the site specific circumstances

encountered at a facility in a manner that is both

environmentally protective, timely, as well as

cost effective. 

     

     

These operating principles include focusing on

results over process, increasing emphasis on

risk-based decision making, and shifting resources

to interim measures that will stabilize continuing

releases and minimize potential exposures.  USWAG

supports this new approach.   

     

We also support EPA's efforts to build flexibility

into the remedy selection process.  We agree with

the agency that cost is a legitimate basis for

selecting of potential remedies as long as they

meet specific threshold criteria, and USWAG also

supports the use of site specific, risk-based

decision making in establishing clean-up

standards.     

     

However, rather than applying a 10-6 risk

reduction goal as the point of departure when

developing clean-up standards for all corrective

actions, regardless of location, we feel the

agency should establish a secondary point of

departure standard, perhaps 10-4 for industrial

locations.  Such an approach would be fully

protective of human health and the environment. 

It would also enhance the ability of program

implementers to tailor the clean-up standards to

the actual risks posed by a site.       

     

Another area where flexibility can be built into

the corrective actin program is by deferring to

clean-up activities being conducted under another

authority or by another program wherever possible. 

One area of regulatory overlap of particular

interest to the electric utility industry involves

corrective action at operating nuclear generating

stations.  USWAG urges EPA to coordinate

implementation of RCRA corrective action

obligations with the decommissioning requirements

imposed on commercial nuclear power plants by the

United States Nuclear Regulatory Commission (NRC). 

Such coordination would promote a more cost

effective and practical approach for implementing

these separate but overlapping requirements. 

     

     

Our second broad theme involves EPA's efforts to

streamline the corrective action process.  The

implementation of such a streamlining initiative

would result in faster site remediation, would

eliminate unnecessary regulatory burdens, and

would reduce clean-up costs, all without

compromising the human health and environmental

protection goals of the corrective action program.

     

     

One step which EPA could take to streamline the

corrective action process is to refine the

definition of facility to more accurately identify

the universe of sites subject to corrective

action.  EPA currently defines a facility to

include all contiguous property under the control

of the owner/operator.  This broad definition

inappropriately sweeps large tracts of land not

involved with hazardous waste management in the

corrective action universe.  While this is true

for all industrial facilities, it's particularly

the case for electric utilities.        

     

A more rational approach would be to adopt EPA's

suggested alternative definition which would focus

the corrective action program on that portion of

the facility under the control of the operator

engaged in hazardous waste management.  Such a

modification would advance EPA's stated goal of

focusing the agency's corrective action resources

on those areas at facilities which present the

greatest risk relative to human health and the

environment.   

     

We feel that EPA has ample legal authority to

modify its definition of facility.  The agency's

existing definition was upheld by a federal court

as rational and not inconsistent with the 1984

amendments to RCRA.  However, this definition is

only one of multiple permissible interpretations

of a very ambiguous provision.  As a matter of

fact, the same federal court observed that EPA and

other agencies are not bound by their prior

interpretation of the provision as long as they

supply justification for their change in position. 

In this case, a redefinition of the term facility

can be easily justified by EPA as a necessary and

important step towards focusing the corrective

action program on those areas of greatest relative

risk, those areas where hazardous waste management

activities are actually incurring. 

     

     

Another way to reform the corrective action

process is for EPA to formally codify as agency

policy the common sense statement in the ANPR that

the components of a corrective action clean-up are

not to be viewed as isolated.      

     

The experience of USWAG member companies confirms

the various steps in the corrective action process

can be combined to provide concurrent rather than

sequential analysis in a consolidation of reports. 

For example, likely remediation strategies usually

become evident during the initial site assessment

and the facility's owners or operators should be

encouraged to tailor subsequent activities such as

the RCRA facility investigation (RFI) and the

corrective measures study (CMS) towards evaluating

such plausible remedies.      

     

One of the more innovative proposals in the ANPR

for streamlining the corrective action process

involves implementing a performance-based approach

to regulatory oversight.  Under this proposal, an

overseeing agency would modify a facility's

compliance based on specific remedy implementation

milestones or remedial goals who would not be

involved with the details of remedy design,

construction, or implementation unless the owner

or operator were having trouble meeting the

remedial goals.  To verify that the corrective

action was being successfully implemented,

performance monitoring would be required.    

     

USWAG supports the agency's recommendation for

streamlining the corrective action process by

shifting more responsibility for achieving

clean-up goals to the regulated community.        

     

EPA could also streamline the corrective action

process by clarifying the role of public

participation.  USWAG supports meaningful public

participation in corrective action but, as EPA

recognizes, the appropriate level of public

participation in any particular corrective action

varies depending upon the level of interest in the

community and the degree of risk posed by the

site. Consequently, EPA should allow facilities

undergoing corrective action to choose from a

variety of public participation goals which would

be used to tailor the public participation

opportunities to respond to the site specific

circumstances.      

     

In addition, several of our member companies have

expressed concern that the public participation

process sometimes becomes an excuse for inaction. 

If even a single member of the public expresses an

objection to a corrective action, some EPA

officials become unwilling to take any action. 

Public participation is not a substitute for the

agency's exercise of thoughtful and independent

discretion and EPA must not abdicate its role as

the ultimate decision maker.       

     

In sum, USWAG believes that citizens groups and

other interested members of the public should have

a voice in the decision making process but should

not possess and exercise a unilateral veto.  USWAG

further urges EPA to implement the agency's

additional proposals for streamlining the

corrective action process.  Many of these

suggestions would significantly improve the

implementation of the corrective action program

such as encouraging owners and operators to submit

their own RCRA facility assessments to EPA for

review, using release assessments or confirmatory

sampling to ensure that the release actually has

occurred, and focusing the corrective measures

study on realistic remedies.  

     

My third and final theme addresses the ongoing

problem that plagues the corrective action

program.  Earlier in my remarks I referred to the

chasm between the flexible philosophy espoused by

EPA in the preamble to the 1990 proposed rule and

the inflexible mechanistic approach to

implementation that often manifests itself in some

EPA regions and a few states.  A common complaint

often heard from our members is that the

corrective action program, despite the various

pronouncements from EPA headquarters, is applied

in a rigid manner.  

     

Two examples.  One of our members has stated that

an EPA region divided a site contaminated with

historic manufactured gas plant waste into dozens

of separate SWMUs and they even divided the tank,

the tank containing some waste from the

surrounding containment structure.  Another member

company has complained that they were denied

access to EPA's documents explaining why their

facility received a ranking as a priority site

under the corrective action priority system.      

     

The basic problem here appears to be one of

accountability.  When confronted in the field with

an EPA official ignoring the agency's existing

rules and guidelines, the only recourse available

to the regulated community is to appeal to the

official's direct supervisor who often responds by

rallying around his or her staff person instead of

conducting independent evaluation.  As a result,

the regulated community is left without a viable

means of recourse.       

     

There are various approaches the agency could take

to create a greater sense of accountability such

as establishing a system for rapid third party

dispute resolution or expanding the role of the

EPA hazardous waste Ombudsman's office. 

Regardless of the approach ultimately selected,

USWAG urges the agency to use the advance notice

as an opportunity to remedy the fundamental

disconnect between the policies espoused by EPA

headquarters and the implementation of the

corrective action program in certain EPA regions.      

     

As EPA moves forward in developing the corrective

action rule, USWAG asks the agency to remember the

three themes I've discussed today, namely the need

to preserve flexibility in site clean-ups, the

need to streamline the corrective action process,

and the need to ensure that EPA policies are

properly carried out by the agency's field

personnel.  By incorporating these themes into the

RCRA corrective action rule, EPA would be

significantly strengthening the program.     

     

Thank you for the opportunity to address these

concerns.  You'll certainly receive more fully

developed arguments and positions on these points

in our comments, and we would be glad to try to

answer any questions. 

     

     

MR. HALL:  Okay.  Any questions? [There were no

questions.]  Thank you very much.  

     

This concludes the presentations by those people

who had signed up to speak in advance of the

public hearing.  Is there anyone else here today

that wishes to enter testimony into the record?   

     

During the course of this morning's events, did

anyone note any questions on their 3 X 5 cards

that they would like to present to the panel?  If

you would raise your hand if you did.  None.      

     

Before I close, I'd like to mention that we have

received a request to extend the comment period

and that just came into the agency and we're

evaluating it and we will make the decision within

a couple of days, so you might want to check The

Federal Register in the event that we do extend

the comment period.  I hope to see many of you

tomorrow morning at the public hearing on the

proposed HWIR-media rule.     

     

MR. DAY:  I didn't write it on a 3 X 5 card, but I

do have a question. 

     

     

MR. HALL:  All right.  Would you go to the

microphone.    

     

MR. DAY:  My name is Peter Day, Phillips Petroleum

Company.  My question had to do with the elements

that they might consider promulgating without

additional comment, even as part of the

rulemaking.  We really don't have a clue as to

what aspects of the 1990 proposal you might

consider that are ripe for promulgation without

additional comment and any information you could

give us on what those avenues are would be

appreciated.   

     

MR. HALL:  Guy.

     

     

MS. McMANUS:  Well, I guess the answer is that

we're looking for input from you on which portions

should be finalized without additional public

comment.  It's one of the things that we asked

people to specifically address in their comments

on the ANPR. The agency's interest in this matter

obviously is that there are portions of the 1990

proposal that we can go final on without devoting

considerable additional resources to unnecessary

additional public review and comment.  We want to

identify those and we want to go final on them. 

So hopefully we'll get input from you on which

elements, if any, you think are ripe for

promulgation.  I guess we really don't have any

preconceived notions.  We're looking for input. 

     

     

MR. HALL:  Any additional questions?  None.  The

public hearing is closed.     

     

(The public hearing was closed at 10:33 p.m.)