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					     IS THE RCRA CORRECTIVE ACTION PROGRAM BEING STREAMLINED?
                (New EPA Rules/Guidance are Cause for Optimism)

                                             by 1/
                                    Lowell F. Martin, Esq.
                                   Farleigh H. Earhart, Esq.

                                        January 1999

                      This article briefly highlights a number of recent
                      regulatory and other developments that, taken
                      together, signal that the USEPA is now strongly
                      committed to streamlining the RCRA corrective
                      action program and changing its emphasis from
                      focusing on process to achieving environmental
                      results.


I.     Introduction

The number of industrial facilities obligated to perform corrective action under the Resource
Conservation and Recovery Act, as amended, (“RCRA”) is enormous. There exist at least 3,700
potential private sector RCRA corrective action sites versus 1,200 or so sites listed on the National
Priorities List (“NPL”) under the Comprehensive Environmental Response, Compensation and Liability
Act, as amended (“CERCLA” or “Superfund”).2/ RCRA corrective action remediation costs
nationwide have been estimated to exceed CERCLA remediation costs by 50 percent or more,




       1/
         Lowell Martin is a partner with Morgan, Lewis & Bockius LLP resident in the firm's
Washington, D.C. office. He serves as counsel to the RCRA Corrective Action Project, a group of
Fortune 100 companies dedicated to working with EPA to foster a protective and cost-effective
RCRA corrective action program and is the RCRA Editor of the EPA Administrative Law Reporter.
Ms. Farleigh Earhart until recently was an associate in the Morgan, Lewis Environmental Practice
Group and is now with the Smithsonian Institution Office of the General Counsel.
       2/
           Hazardous Waste: Progress under the Corrective Action Program is Limited, but New
Initiatives May Accelerate Cleanups, GAO/RCED-98-3, United States General Accounting Office,
October 1997 (the “GAO Report”), at 1; Superfund National Priorities List at Appendix B to 40
C.F.R. Part 300 (1998).
potentially exceeding $240 billion.3/ Yet the pace of implementing RCRA’s corrective action program
has been remarkably slow. Of the almost 4,000 private sector facilities subject to corrective action,
only about 8 percent have “completed” remediation, according to the corrective action data base
maintained by the United States Environmental Protection Agency (“EPA”).4/ Until now, the lack of
discernable progress in the RCRA corrective action program has avoided close scrutiny by Congress.
Recent Government Accounting Office reports and EPA Inspector General inquiries, however, have
begun to focus on the large number of sites included in the RCRA universe.5/ With Senate hearings on
the corrective action program reported to be scheduled in the Spring of 1999, the apparently slow pace
of the program may well face more intense criticism in the near future.

The glacial pace at which RCRA corrective action sites have been remediated is due in large measure
to the fact that hazardous remediation wastes have been subject to the same subtitle C regulatory
regime applicable to newly-generated hazardous industrial process wastes. Closed or closing industrial
facilities -- frequently candidates for brownfields redevelopment -- are particularly severely impacted
by this structure.

Typically, the owner/operator of a facility seeking to clean up hazardous waste contamination must
either negotiate an administrative order or apply for a final RCRA permit or permit modification to
address the contemplated remedial activities, which frequently requires submission of enormous
amounts of documentation and may take the Agency several years to process, even where the facility is
no longer conducting active industrial operations.6/ In light of these complexities, an owner/operator not
otherwise subject to RCRA permitting may simply defer undertaking cleanup, thus leaving potentially
productive property lying fallow.

In an effort to remedy this problem, EPA has recently issued several rules and a summary guidance
document that may ease the regulatory burdens associated with RCRA corrective action cleanups and
thus increase the speed of remediation. Two of the three rules, the Phase IV Land Disposal
Restrictions Rule (May 1998) and the HWIR-Media Rule (November 1998), address targeted fixes to
RCRA remediation waste management issues in lieu of the Agency’s previously proposed
comprehensive “bright-line” approach that would have exempted hazardous remediation waste from



       3/
        Russell, et al., “Hazardous Waste Remediation: The Task Ahead,” University of Tennessee,
December 1991.
       4/
            GAO Report at 7.
       5/
          See, GAO Report and USEPA Inspector General Report, “State Deferrals: Some
Progress, But Concerns for Long-Term Protectiveness Remain,” September 10, 1998.
       6/
            RCRA § 3008(h), 42 U.S.C. § 6928; 40 C.F.R. § 270.42 (1997).

                                                2
RCRA subtitle C coverage altogether.7/ Focused specifically on closing or closed RCRA facilities, the
Post-Closure Rule (October 1998) holds promise for facilitating cleanups at this class of RCRA
facilities, which frequently include prime candidates for “brownfields” redevelopment.8/ Also in
October of 1998, EPA issued a guidance document addressing a number of areas of flexibility in the
RCRA program that could be applied beneficially in managing hazardous remediation waste. Finally, in
the opening plenary session at EPA’s mid-January 1999 National RCRA Meeting for state and EPA
Regional regulators, Tim Fields, Acting Assistant Administrator for the Office of Solid Waste and
Emergency Response, announced a strong commitment to streamlining the corrective action process.
He promised to follow up within the next several months with a set of administrative reforms along the
lines of those previously implemented for the Superfund program.

This article highlights the potential benefits these targeted regulatory fixes and recent guidance can
provide. We explain how, together, these reforms promise to improve the prospects for speedier,
more efficient cleanups and thus brownfields redevelopment of contaminated industrial properties.9/

II.    Land Disposal Restrictions

The first of the targeted fixes is the “Phase IV” Land Disposal Restrictions (“LDR”) Rule,10/ which EPA
promulgated in late May of 1998. The Phase IV LDR Rule attempts to address the problem of
managing remediation waste that has been exhumed by setting somewhat relaxed LDR treatment




       7/
         The “bright-line” approach was set forth in the Agency's HWIR-media proposal of April 29,
1996. 61 Fed. Reg. 18,780.
       8/
           EPA defines "brownfields" as properties that are abandoned, idled, or under-utilized
industrial and commercial facilities where expansion or redevelopment is complicated by real or
perceived environmental contamination. “Handbook of Tools for Managing Federal Superfund Liability
Risks at Brownfields and Other Sites,” EPA-330.B-98-001 (Nov. 1998).
       9/
          One caveat must be emphasized. In most instances the new regulations constitute relaxations
of current requirements. Thus, they are not immediately effective in states authorized for the RCRA
hazardous waste management program, do not have to be adopted by such states to retain their
authorizations, and in any event, do not “trump” more rigorous state law provisions. See, e.g.,
discussion of state authorization at 63 Fed. Reg. 65,924-5 (Nov. 30, 1998).
       10/
          Land Disposal Restrictions Phase IV: Final Rule Promulgating Standards for Metal Wastes
and Mineral Processing Wastes; Mineral Processing Secondary Materials and Bevill Exclusion Issues;
Treatment Standards for Hazardous Soils, and Exclusion of Recycled Wood Preserving Wastewaters;
Final Rule, 63 Fed. Reg. 28,556 (May 26, 1998).

                                                 3
standards for soils contaminated with hazardous wastes.11/ Prior to the Phase IV LDR Rule, soil
contaminated with listed hazardous wastes or soil that exhibited one or more of the regulatory
“characteristics” of a hazardous waste was prohibited from land disposal unless it had been treated to
meet the standards applicable to newly-generated hazardous industrial process waste.12/ Potential
application of the stringent LDR treatment standards for process wastes was a very strong disincentive
to undertaking any remediation and, at most, an encouragement to capping and/or treatment-in-place
rather than potentially more protective, but not fully LDR compliant, ex-situ approaches.

The Phase IV Rule establishes a new LDR “treatability group” specifically for hazardous contaminated
soil, and makes new, less stringent treatment standards available to all such soils contaminated with
listed hazardous wastes or exhibiting a hazardous waste characteristic. Under the Agency’s April 1996
HWIR-Media “bright-line” proposal the standards were limited to soils excavated pursuant to a state or
federally approved remediation plan.13/ For soil contaminated with listed hazardous waste, the new
standard requires a 90% reduction in the concentrations of the hazardous constituents for which the
waste was listed and of all Underlying Hazardous Constituents (“UHCs”) “reasonably expected to be
present” in the soil at levels greater than ten times the LDR Universal Treatment Standard (“UTS”)
applicable thereto. For soils exhibiting a hazardous waste characteristic, the new standards require
that the treatment remove the characteristic and reduce by 90% the concentration of any UHC
reasonably expected to be present at a level greater than ten times the UTS applicable thereto. For any
given constituent the 90% reduction requirement is capped at 10 times the UTS.14/ In other words, the
soil must be treated to reduce concentrations of hazardous constituents by 90% or to concentrations
that are ten times the UTS, whichever is greater.

EPA has retained the alternative of meeting the existing treatment standards for newly generated
hazardous industrial process wastes.15/ The rule also provides for site-specific variances from the soil


       11/
          EPA’s position is that in-situ treatment of land-disposed hazardous wastes does not trigger
the RCRA statutory requirement that hazardous wastes be treated to “minimize threats” prior to being
land disposed. See, e.g., USEPA memo, “Use of the Area of Contamination Concept During RCRA
Cleanups,” March 13, 1996.
       12/
             63 Fed. Reg. 28,602 (May 26, 1998).
       13/
             Id.
       14/
           63 Fed. Reg. at 28,604-5 (May 26, 1998); 63 Fed. Reg. at 28,751 (May 26, 1998) (to be
codified at 40 C.F.R. § 268.49.)
       15/
          63 Fed. Reg. at 28,602 (May 26, 1998) (to be codified at 40 C.F.R. § 268.49(c)); 40
C.F.R. § 268.9(b)(1997). In this regard, the current regulations for newly-generated industrial process
                                                                                      (continued...)

                                                   4
treatment standards using the existing procedures for treatability variances set forth at 40 C.F.R. §
269.44.16/ Such variances are available where it can be demonstrated to the Agency’s satisfaction that
meeting the otherwise applicable treatment standard would require treatment to below levels necessary
to minimize threats to human health and the environment.17/

By reducing the costs associated with management of exhumed soils contaminated with hazardous
wastes, the Phase IV LDR Rule promises to encourage remediation in instances where it would
previously have been economically prohibitive. Of course, given the complexities of the rule, pending
legal challenges to it, and the potentially lengthy timeframe for its adoption by the States (see footnote
9) there will no doubt be a substantial time lag before its effect is widely felt.

III.   HWIR-Media

The LDR treatment requirements on exhumed remediation waste are just one of many barriers to
cleanup of contaminated industrial facilities. The LDR minimum technology requirements (“MTRs”) on
units into which treated hazardous wastes can be placed are another expensive and cumbersome
impediment that may not be necessary to protect human health or the environment at any given cleanup
project.18/ In addition, the applicability of RCRA’s permitting requirements and the accompanying
requirement for site-wide corrective action cleanup can significantly delay, if not thwart, initiation of
brownfields redevelopment projects.19/




       15/
         (...continued)
wastes specify that where a waste is both listed as hazardous under subpart D of 40 C.F.R. part 261
and also exhibits a characteristic defined in subpart C of part 261, the waste is subject only to the LDR
treatment standard for the listed waste, provided that the treatment standards for the listed waste
include a standard for the constituent that causes the waste to exhibit the characteristic. 40 C.F.R. §
268.9(b)(1997). Since the listed waste treatment standards do not require treatment of underlying
hazardous constituents, whereas the characteristic waste treatment standards do, this provision can
provide some relief in certain limited circumstances.
       16/
             63 Fed. Reg. at 28,752 (May 26, 1998) (to be codified at 40 C.F.R. § 268.49(b)).
       17/
             63 Fed. Reg. at 28,738 (May 26, 1998) (to be codified at 40 C.F.R. § 268.44(h)(3)).
       18/
             63 Fed. Reg. at 65,877 (Nov. 30, 1998).
       19/
             Id.

                                                  5
The “HWIR-Media Rule,”20/ published in the Federal Register on November 30, 1998, addresses
some of these burdens by streamlining certain permitting and technological requirements for the
management of hazardous remediation wastes and eliminating the requirement for facility-wide
corrective action at remediation-only facilities.21/ The new provisions are broad in scope and are
available for any site being remediated under federal or state authority, including Superfund sites. The
primary benefits of the rule are: (1) authorization to use “staging piles” for temporary on-site storage of
remediation waste without triggering LDRs or MTRs; (2) establishment of permits with limited scope
(called Remedial Action Plans or “RAPs”) for treating, storing, and disposing of remediation waste only
without triggering site-wide corrective action obligations; and (3) streamlined procedures for approval
of RAPs.22/

By allowing development of technological requirements on an as-needed, site-specific basis, the rule
promises to make remediation activities quicker and less costly. For example, prior to the rule,
temporary storage piles were regulated as land disposal units and were subject to full RCRA permitting
and MTRs, such as liners, whether or not necessary to protect human health or the environment.23/ The
HWIR-Media Rule allows EPA or an authorized state to designate temporary storage areas, or
“staging piles,” which are not subject to exacting design requirements.24/ Rather, they are subject to
specified performance standards: (1) facilitation of a reliable, effective, and protective remedy; (2)
prevention or minimization of releases of hazardous constituents into the environment; and (3)
minimization or adequate control of cross-media transfer -- as necessary to protect human health and
the environment.25/ Thus, under the HWIR-Media Rule, the decision on a liner or other technological
requirements would be made on a site-specific basis. Use of a staging pile may be authorized for a




       20/
          Hazardous Remediation Waste Management Requirements (HWIR-Media); Final Rule, 63
Fed. Reg. 65,874 (Nov. 30, 1998).
       21/
             63 Fed. Reg. at 65,879 (Nov. 30,1998).
       22/
             63 Fed. Reg. at 65,874 (Nov. 30, 1998).
       23/
             See, e.g., 40 C.F.R. §§ 264.250-264.259 (1998).
       24/
           Although in the proposed HWIR-Media Rule EPA had indicated an intention to rescind the
Corrective Action Management Unit (“CAMU”) rule that provides another flexible way to manage
hazardous remediation wastes without triggering LDRs or MTRs, the final HWIR-Media Rule retains
the CAMU in light of the fact that only limited portions of the proposal have been finalized. See, notice
of partial withdrawal of HWIR-Media proposal published at 63 Fed. Reg. 66,101-2 (Dec. 1, 1998).
       25/
             63 Fed. Reg. at 65,939 (Nov. 30, 1998) (to be codified at 40 C.F.R. § 264.554).

                                                  6
maximum of two years, with one 180-day extension available at the discretion of the authorizing
agency.26/

The rule additionally may expedite cleanups by allowing owner/operators to obtain RAPs for areas
subject to remediation only without subjecting the entire facility to the lengthy and costly RCRA
corrective action investigation and cleanup requirements.27/ In other words, a facility not otherwise
required to obtain a RCRA permit may obtain a RAP without subjecting the entire facility to the
corrective action obligations that are normally imposed on any facility seeking a permit.28/

When the HWIR-Media Rule is fully implemented, EPA expects that the RAP application process will
require submission of less information, and the resulting RAP will focus on the one-time cleanup
project, not the extensive generic terms and conditions imposed in RCRA permits issued to govern
management of process waste at an operating facility.29/ However, as with the Phase IV Rule, legal
challenges and the non-mandatory nature of the rule with respect to retention of state RCRA
authorization indicate a long horizon for its full implementation.


IV.    Post-Closure Rule

The Phase IV LDR and HWIR-Media Rules can be beneficial to remediation at any facility that falls
within the scope of RCRA subtitle C, whether currently operating, closing, or closed. The final targeted
regulatory fix discussed in this article, the “Post-Closure Rule,”30/ is of special importance to closing or




       26/
          63 Fed. Reg. at 65,939 (Nov. 30, 1998) (to be codified at 40 C.F.R. §§ 264.554(h),
264.554(i)).
       27/
             63 Fed. Reg. at 65,883 (Nov. 30, 1998).
       28/
           It is also not EPA's intention that seeking a RAP would subject a facility to the interim status
corrective action ordering authority of section 3008 (h) of RCRA, 42 U.S.C. § 6928(h). 63 Fed. Reg.
at 85,883 Nov. 30, 1998).
       29/
          For example, the limited set of information required in a RAP application is set forth at 63
Fed. Reg. 65,942 (Nov. 30, 1998) (to be codified at 40 C.F.R. §270.110).
       30/
          Standards Applicable to Owners and Operators of Closed and Closing Hazardous Waste
management Facilities: Post-Closure Permit Requirement and Closure Process; Final Rule, 63 Fed.
Reg. 56,710 (Oct. 22, 1998).

                                                 7
closed hazardous waste management facilities.31/ If a facility closes with any hazardous waste remaining
in place, the owner/operator must obtain a post-closure permit, which imposes a minimum 30-year care
period and includes the obligation to perform site-wide corrective action (unless corrective action has
already been completed during “interim status” pursuant to an order issued under section 3008(h) of
RCRA, or otherwise).32/ Further complicating the picture for closed or closing facilities is the fact that,
while almost all states have been delegated authority to issue post-closure care permits, just thirty three
have been delegated corrective action authority as of June 30, 1998. Consequently, many companies
find themselves subject to regulation by two agencies -- a state, which oversees closure and post-
closure care of “regulated units” (landfills, surface impoundments, waste piles, or land treatment units
subject to the RCRA permitting requirement) and EPA, which oversees corrective action at the
remaining Solid Waste Management Units (“SWMUs”) located at the facility that are not subject to the
RCRA permitting requirement.33/ This bifurcated process alone can be an extreme impediment to
progress.

The Post-Closure Rule eliminates some of RCRA’s permitting requirements by allowing EPA and
authorized states to use “alternative mechanisms” in the form of “enforceable documents,” in lieu of




       31/
          “Closure” is a RCRA term of art for the formal process by which a unit or units that have
managed hazardous waste are finally taken out of service. Closure can be “clean,” involving removal or
decontamination of all hazardous wastes and cleanup of any residual contaminated environmental
media, or can be “in-place,” in which case “post-closure” requirements including long-term care and
monitoring then become applicable. See, e.g., closure performance standard at 40 C.F.R. § 264.111
(1998).
       32/
         See, e.g. 40 C.F.R. § 264.310 (1998) regarding closure and post closure requirements on
hazardous waste landfills and 40 C.F.R. §§ 264.100, 264.101 (1998) regarding corrective action
requirements.
       33/
           Under RCRA, a material must first be a “solid waste” before it can be a “hazardous waste,”
but not all solid wastes are hazardous wastes. See, e.g., definition of “solid waste” at RCRA section
1003(27), 42 U.S.C. § 6903(27), and definition of “hazardous waste” at RCRA section 1003(5), 42
U.S.C. § 6903(5). Amendments to the RCRA statute enacted in 1984 gave EPA and authorized
states authority to compel cleanup of releases from solid waste management units irrespective of
whether the solid waste at issue was or was not also a hazardous waste. RCRA sections 3004(u) and
3004(v), 42 U.S.C. §§ 6924(u) and (v). These non-hazardous solid waste management unit or
“SWMU” cleanup requirements often are very similar in substance to the requirements imposed on
“clean” closure of hazardous waste management units. Compare closure performance standard at 40
C.F.R. § 264.111 (1998) with corrective action standard for solid waste management units at 40
C.F.R. § 264.101 (1998).

                                                 8
permits to enforce closure and post-closure requirements.34/ Examples of acceptable alternate
authorities include orders issued under RCRA section 3008(a) or 3008(h), post-closure plans
approved by EPA or an authorized state, and orders and decision documents issued by EPA under
CERCLA.35/

In authorizing the use of alternate authorities, EPA has stated that it intends that the substantive
requirements of post-closure care permits continue to be required, including those pertaining to
information reporting, groundwater monitoring, and facility-wide corrective action. Thus interim status
facilities using alternate authorities to address closure/post-closure become subject to requirements
equivalent to the current standards for permitted facilities.36/ Interim status facilities working under
alternate authorities also remain subject to applicable interim status requirements, such as financial
assurance, until EPA or the state finally disposes of the permit application.37/ Nevertheless, avoiding
issuance of a formal post-closure care permit can have significant benefits. For example, it can avoid a
mandated five- or ten-year permit renewal cycle. Similarly, use of an alternate authority can more
clearly define the remedial activities required as a prerequisite to ultimately obtaining a determination
that post-closure activities are no longer necessary.

Another important feature of the new Post-Closure Rule is the flexibility it gives to EPA and authorized
states to replace the closure requirements applicable to units subject to RCRA permitting with
corrective action requirements.38/ The rule allows owner/operators to clean up “regulated units” subject
to post-closure permitting using the corrective action process if such units are in close proximity to
SWMUs.39/ As a result, facilities can avoid application of two different sets of cleanup requirements
(enforced by two different agencies, in the cases of states lacking corrective action authority) that could
otherwise apply to neighboring sources of the same contamination. The Post-Closure Rule allows EPA
and authorized states to develop site-specific requirements through the remediation process, using a
generalized performance standard -- protection of human health and the environment, minimization of




       34/
             63 Fed. Reg. at 56,715 (Oct. 22, 1998).
       35/
             Id.
       36/
             63 Fed. Reg. at 56,715 (Oct. 22, 1998).
       37/
             63 Fed. Reg. at 56,716 (Oct. 22, 1998).
       38/
             63 Fed. Reg. at 56,714 (Oct. 22, 1998).
       39/
             Id.

                                                  9
the need for further maintenance, and control, minimization, or elimination of post-closure escape of
hazardous wastes and constituents.40/

Like the HWIR-Media Rule, the Post-Closure Rule promises to reduce permit application
requirements, specifically for those owner/operators applying only for post-closure care permits.41/
Both rules, however, stress the importance of public participation in the revised permitting processes.
The Post-Closure Rule, for example, provides that the alternate authority used in place of a post-
closure care permit must provide a meaningful opportunity for the public to comment at three critical
stages: (1) when the agency becomes involved in the remediation; (2) when the remedy is proposed;
and (3) when the remedy is deemed complete.42/ In the preamble to the HWIR-Media Rule, EPA
states that, at a minimum, authorized state programs must meet the statutory public participation
requirements of RCRA section 7004(b): (1) delivery of notices of the proposed decision to the facility
owner, state, and local governments; (2) publication of the proposed decision in the newspaper; (3)
radio broadcast of the proposed decision; (4) a forty-five day comment period; and (5) an opportunity
to request a public hearing.43/ Despite such minimum mandatory requirements, the preambles to both
rules explicitly acknowledge the need to retain flexibility in the public participation processes of
authorized state programs. Again, however, it must be emphasized that since the Post-Closure Rule is
a relaxation of current requirements, the time frame for its adoption by the states may be lengthy. Also,
since authority to use “alternative mechanisms” in lieu of permits will entail EPA review and approval of
state remedial programs not otherwise subject to EPA purview, some states may be reluctant to seek
authorization at all.

V.     Remediation Waste Guidance

Another recent development specifically relating to remediation waste management is issuance of a
guidance document entitled “Management of Remediation Waste Under RCRA” in October of 1998
jointly by EPA’s Office of Solid Waste and Emergency Response and Office of Enforcement and
Compliance Assurance.44/ This guidance does not create any new policy, but distills several existing
policies and rules into one concise document to re-emphasize the flexibility already available to EPA
and state regulators and regulated facilities in implementing rapid cleanups. EPA also has produced a


       40/
             See, e.g. 63 Fed. Reg. at 56,733 (Oct. 22, 1998) (to be codified at 40 C.F.R. § 264.110).
       41/
             Id. (to be codified at 40 C.F.R. § 270.28).
       42/
             63 Fed. Reg. at 56,734 (Oct. 22, 1998) (to be codified at 40 C.F.R. § 265.121((b)).
       43/
             63 Fed. Reg. at 65,896 (Nov. 30, 1998).
       44/
        "Management of Remediation Waste Under RCRA," USEPA Office of Solid Waste,
EPA530-F-98-026, October 1998.

                                                   10
summary chart (copy attached) that outlines the regulations and policies that can be used to provide
flexibility in managing remediation waste. Among the policies reiterated in the chart and guidance
document are the Area of Contamination (“AOC”) policy (allowing movement, consolidation, and in-
situ treatment of wastes within a contiguous area of contamination without triggering LDRs or MTRs),
the CAMU Rule (allowing greater flexibility than the AOC concept to treat wastes ex-situ and return
them to the land without triggering LDRs or MTRs), and the “contained-in policy” (whereby removal of
the offending listed hazardous waste from an environmental medium, e.g., soil or groundwater, renders
the soil or groundwater no longer subject, via the “derived-from” rule, to management as hazardous
waste).45/

While some of the regulations and policies described in the guidance document, such as the Phase IV
LDR rule, are newly promulgated, most have been in existence for some time. The primary significance
of the guidance and accompanying chart, therefore, is EPA’s current endorsement of flexible
procedures that have been underutilized to date. By presenting a comprehensive overview of these
various policies -- which until now have been distributed and relied upon in piece-meal fashion only --
EPA Headquarters has taken an important first step in effecting a culture change within the Regions and
among authorized state personnel. Facility owner/operators would be well-advised to consult the
guidance and the underlying references cited in it while developing their cleanup plans and prior to
engaging in negotiations with regulatory officials.

VI. Administrative Reforms?

During his address to the opening plenary session of EPA’s National RCRA Meeting in mid-January of
1999, Tim Fields, Acting Assistant Administrator of EPA’s Office of Solid Waste and Emergency
Response, stated that corrective action was his highest priority for the RCRA program. Fields opined
that to accelerate the program: (1) states would have to be given greater flexibility; (2) only the data
needed to assess reasonably foreseeable risks at a site and select remedies should be collected; and (3)
redundant or unnecessary steps in the corrective action process should be eliminated. Backing up these
observations, he stated that the Agency would unveil within the next several months a comprehensive
package of corrective action administrative reforms along the lines of the initiatives being implemented
successfully with respect to EPA’s Superfund program, for which his office also has responsibility.46/ If
EPA Headquarters becomes a forceful advocate for reforms and implements a system of accountability
to assure that they are applied in the field, the slow pace of the RCRA corrective action program to
date could well be accelerated.



       45/
            EPA's “derived-from” rule states that residues from the management of listed hazardous
wastes remain hazardous wastes and carry the waste codes of the original hazardous wastes unless and
until the residues are formally delisted. 40 C.F.R. § 261.3(c)(2)(i)(1998).
       46/
             08 DEN A-1 1999 (BNA), Jan. 13, 1999.

                                                11
VII.   Conclusion

If fully utilized, the Phase IV LDR Rule and the HWIR-Media Rule should improve the speed and
reduce the cost of corrective action and other cleanups involving RCRA hazardous wastes. In
combination with the Post-Closure Rule, they may be particularly effective at closed or closing industrial
facilities, thus potentially playing an important role in brownfields redevelopment efforts. However,
because all of the rules are essentially less stringent than existing requirements, they are not immediately
effective in all states and states are not required to adopt them to retain authorization to administer the
RCRA program. Rather, authorized states each must elect to adopt the rules and then go through the
authorization process for them. Although EPA has strongly encouraged the states in this regard, the
rate at which they will proceed remains to be seen.

The October 1998 remediation waste guidance document, in contrast, is not subject to the state
authorization process, and is “immediately effective” in states that desire to use it. However, the
guidance lacks the force of regulation. Thus, in the short term, the guidance may prove to be the most
useful tool for persuading regulators to find innovative solutions to remediation problems. Taken in
conjunction with Assistant Administrator Fields’ very strong commitment to administrative reforms,
these developments could well mean that EPA’s RCRA corrective action program is now on its way to
meaningful streamlining.


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