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.)