Countering RCRA Corrective Inaction

American College of Environmental Lawyers

By: Dean A. Calland  

David Van Slyke recently posted an excellent discussion about the slow progress of EPA’s efforts to implement its RCRA 2020 initiative goals under the Government Performance Results Act and looming budget cuts that would slow the pace even more. However, a trend appears to be emerging that may help counter this RCRA corrective inaction.

The current statistics on remedial progress at RCRA corrective action sites are disappointing.  EPA estimates that the average RCRA Facility Investigation (RFI) takes 10 years, with some taking up to 19 years. The RFI process usually constitutes up to 80 percent of the time in a given cleanup, and remedy selections are taking an average of 6 years, and may take as long as 8 years, according to information from Region 3, Region 7 and RCRAInfo analysis. RCRA Facilities Investigation Remedy Selection Track: A Toolbox for Corrective Action.  However, we have witnessed a positive trend over the past several years that may assist site remediators in recovering some of the time lost due to the continued reduction in resources for this program.

There appears to be an emerging willingness by several EPA regions and delegated states to incorporate RCRA FIRST principles into corrective action consent orders that can save significant time and money compared with the traditional approach.  RCRA FIRST is the acronym for “Resource Conservation and Recovery Act Facilities Investigation Remedy Selection Track.”  As Barnes Johnson, Director of the Office of Resource Conservation and Recovery recently wrote, RCRA FIRST was designed to use increases in efficiency and effectiveness to “reduce the planning time [of RCRA corrective action cleanups] by as much as 50-75%, resulting in faster cleanup decisions and facilitating the redevelopment of corrective action facilities.”  RCRA FIRST was an effort to address the root causes of delay such as unclear or non-specific investigation or cleanup objectives and the lack of specific processes to elevate differences among stakeholders early in the project.  As part of this effort, EPA has published a Toolbox for Corrective Action which is designed to arm both respondents and the agencies with practical recommendations to help achieve more efficient investigation decision-making and remedy selection.

The willingness of EPA regions and delegated states to discuss these approaches varies considerably; however, one of the specific reasons that caused EPA to get serious about corrective action reforms was their recognition that agency manpower is likely to continue to shrink over time, and that the traditional approach was wasteful of agency resources.  Some specific examples of how RCRA FIRST has been used to forge consensus on difficult issues are listed below.

  • Up front establishment of a Corrective Action Framework (CAF) that describes the parties’ understandings regarding future investigation and remediation work at the facility borne out of an on-site meeting with agency site managers and their superiors.  CAF Meeting AgendaCAF Template. The CAF is not a formal agreement but it can be referenced and attached to the consent order for both parties to build upon during the subsequent work;
  • Willingness to eschew the traditional RFI study at sites with older data sets in favor of a limited scope RFI that solely addresses identified and agreed upon data gaps;
  • Allowance for the respondent to by-pass the RFI Workplan and instead roll the existing characterization data and some limited additional sampling results directly into the RFI Report;
  • In appropriate circumstances, elimination of the Current Conditions Report and Preliminary Conceptual Site Model steps in the process;
  • In certain limited instances, an agreement to skip the obligation to submit a Corrective Measures Study (CMS) altogether, in favor of moving directly to the Statement of Basis, thereby saving considerable time and money. This is more likely to happen when a presumptive remedy is being sought by the Respondent or when there is an identified reuse for the property that will bring new uses and jobs to the site;
  • Agreement to the submission of a limited Corrective Measure Study that only addresses potential corrective measures that are demonstrated, cost-effective or presumptively applicable.
  • Placing pressure on all participants to use quarterly team meetings and pre-discussed decisional criteria for decision-making in place of the extremely time consuming “redo loop” of written comment and response on technical reports and to bring impasses to the attention of decision-makers earlier (the Evaluation Process);
  • Willingness to terminate older consent orders and unilateral orders and consolidate all applicable requirements into one operative corrective action instrument;
  • An agreement that EPA managers coordinate with state agencies where both have ongoing jurisdiction (e.g., when EPA has responsibility for corrective action and the state has responsibility under their UST program) to avoid duplication of effort and cost for the Respondent;
  • A formal acknowledgement by EPA that Respondent may request a written determination that Respondent has met the consent order’s requirements for just a portion of the facility, particularly if necessary or helpful for a sale or innovative reuse of the subject parcel.

In this era of ever-shrinking agency resources, it is incumbent on all stakeholders at RCRA corrective action sites to seriously consider these new techniques that can make the RCRA corrective action process more time efficient and less costly.

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