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9502.1996(04)

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460

September 24, 1996

MEMORANDUM

SUBJECT: Coordination between RCRA Corrective Action and Closure
and CERCLA Site Activities

FROM: Steven A. Herman
Assistant Administrator
Office of Enforcement and Compliance Assurance

Elliott P. Laws
Assistant Administrator
Office of Solid Waste and Emergency Response

TO: RCRA/CERCLA National Policy Managers
Regions I-X

Good RCRA/CERCLA coordination has become increasingly
important as our offices have reorganized and programs have
assumed new organizational relationships. We believe that, in
general, coordination of site cleanup activities among EPA RCRA,
EPA CERCLA and state/tribal cleanup programs has improved greatly;
however, we are aware of examples of some remaining coordination
difficulties. In this memo, we discuss three areas: acceptance of
decisions made by other remedial programs; deferral of activities
and coordination among EPA RCRA, EPA CERCLA and state/tribal
cleanup programs; and coordination of the specific standards and
administrative requirements for closure of RCRA regulated units
with other cleanup activities. We also announce a revision to the
Agency's policy on the use of fate and transport calculations to
meet the "clean closure" performance standard under RCRA. We hope
the guidance offered here will assist in your continuing efforts
to eliminate duplication of effort, streamline cleanup processes,
and build effective relationships with the states and tribes.

This memorandum focuses on coordination between CERCLA and RCRA
cleanup programs; however, we believe the approaches outlined here
are also applicable to coordination between either of these
programs and certain state or tribal cleanup programs that meet
appropriate criteria. For example, over half of the states have
"Superfund-like" authorities. In some cases, these state
authorities are substantially equivalent in scope and effect to
the federal CERCLA program and to the state or federal RCRA
corrective action program. In accordance with the 1984 Indian
Policy, EPA recognizes tribes as sovereign nations, and will work
with them on a government-to-government basis when coordinating
cleanup efforts on lands under tribal jurisdiction.

In addition to the guidance provided in this memorandum, two
other on-going initiatives address coordination of RCRA and
CERCLA. First, EPA is currently coordinating an inter-agency and
state "Lead Regulator Workgroup." This workgroup intends to
provide guidance where overlapping cleanup authorities apply at
federal facilities that identifies options for coordinating
oversight and deferring cleanup from one program to another. We
intend for today's memorandum and the pending guidance from the
Lead Regulator Workgroup to work in concert to improve RCRA/CERCLA
integration and coordination. Second, EPA has also requested
comment on RCRA/CERCLA integration issues in the May 1, 1996
Advanced Notice of Proposed Rulemaking--Corrective Action for
Releases From Solid Waste Management Units at Hazardous Waste
Management Facilities (61 FR 19432; commonly referred to as the
RCRA "Subpart S" ANPR). We intend to coordinate all of these
efforts as we develop further policy on integration issues.

Acceptance of Decisions Made by Other Remedial programs.

Generally, cleanups under RCRA corrective action or CERCLA
will substantively satisfy the requirements of both programs (see
Footnote 1). We believe that, in most situations, EPA RCRA and
CERCLA site managers can defer cleanup activities for all or
part-of a site from one program to another with the expectation
that no further cleanup will be required under the deferring
program. For example, when investigations or studies have been
completed under one program, there should be no need to review or
repeat those investigations or studies under another program.
Similarly, a remedy that is acceptable under one program should be
presumed to meet the standards of the other.

It has been our experience that, given the level of
site-specific decision-making required for cleaning up sites,
differences among the implementation approaches of the various
remedial programs primarily reflect differences in professional
judgement rather than structural inconsistencies in the programs
themselves. Where there are differences in approaches among
remedial programs, but not in their fundamental purposes or
objectives (e.g., differences in analytical QA/QC procedures),
these differences should not necessarily prevent deferral. We
encourage program implementors to focus on whether the end results
of the remedial activities are substantively similar when making
deferral decisions and to make every effort to resolve differences
in professional judgement to avoid imposing two regulatory
programs.

We are committed to the principle of parity between the RCRA
corrective action and CERCLA programs and to the idea that the
programs should yield similar remedies in similar circumstances.
To further this goal, we have developed and continue to develop a
number of joint (RCRA/CERCLA) guidance documents. For example, the
several "Presumptive Remedies," which are preferred technologies
for common categories of sites, and the Guidance for Evaluating
the Technical Impracticability of Ground-Water Restoration (OSWER
Directive 9234.2-25, September 1993), which recognizes the
impracticability of achieving groundwater restoration at certain
sites, are applicable to both RCRA and CERCLA cleanups. For more
information on the concept of parity between the RCRA and CERCLA
programs see: 54 FR 41000, esp. 41006-41009 (October 4, 1989),
RCRA deferral policy; 54 FR 10520 (March 13, 1989), National
Priorities List for Uncontrolled Hazardous Waste Sites Listing
Policy for Federal Facilities; 55 FR, 30798, esp. 30852-30853
(July 27, 1990), Proposed Rule for Corrective Action for Solid
Waste Management Units at Hazardous Waste Management Facilities;
60 FR 14641 (March 20, 1995), Deletion Policy for RCRA Facilities;
and, 61 FR 19432 (May 1, 1996), Corrective Action for Releases
From Solid Waste Management Units at Hazardous Waste Management
Facilities, Advanced Notice of Proposed Rulemaking.

Program Deferral

The concept of deferral from one program to another is
already in general use at EPA. For example, it has long been EPA's
policy to defer facilities that may be eligible for inclusion on
the National Priorities List(NPL) to the RCRA program if they are
subject to RCRA corrective action (unless they fall within certain
exceptions, such as federal facilities). Recently, EPA expanded on
this policy by issuing criteria for deleting sites that are on the
NPL and deferring their cleanup to RCRA corrective action
(attached)(see Footnote 2). When a site is deleted from the NPL
and deferred to RCRA, problems of jurisdictional overlap and
duplication of effort are eliminated, because the site will be
handled solely under RCRA authority. Corrective action permits or
orders should address all releases at a CERCLA site being deferred
to RCRA; some RCRA permits or orders may need to be modified to
address all releases before a site is deleted from the NPL.

While EPA's general policy is for facilities subject to both
CERCLA and RCRA to be cleaned up under RCRA, in some cases, it may
be more appropriate for the federal CERCLA program or a
state/tribal "Superfund-like" cleanup program to take the lead. In
these cases, the RCRA permit/order should defer corrective action
at all of the facility to CERCLA or a state/tribal cleanup
program. For example, where program priorities differ, and a
cleanup under CERCLA has already been completed or is underway at
a RCRA facility, corrective action conditions in the RCRA
permit/order could state that the existence of a CERCLA action
makes separate RCRA action unnecessary. In this case, there would
be no need for the RCRA program to revisit the remedy at some
later point in time. Where the CERCLA program has already selected
a remedy, the RCRA permit could cite the CERCLA decision document
(e.g., ROD), but would not necessarily have to incorporate that
document by reference. RCRA permits/orders can also defer
corrective action in a similar way for cleanups undertaken under
state/tribal programs provided the state/tribal action protects
human health and the environment to a degree at least equivalent
to that required under the RCRA program.

Superfund policy on deferral of CERCLA sites for listing on
the NPL while states and tribes oversee response actions is
detailed in the May 3, 1995 OSWER Directive 9375.6-11 ("Guidance
on Deferral of NPL Listing Determinations While States Oversee
Response Actions"). The intent of this policy is to accelerate the
rate of response actions by encouraging a greater state or tribal
role, while maintaining protective cleanups and ensuring full
public participation in the decision-making process. Once a
deferral response is complete, EPA will remove the site from
CERCLIS and will not consider the site for the NPL unless the
Agency receives new information of a release or potential release
that poses a significant threat to human health or the
environment. The state and tribal deferral policy is available for
sites not listed on the NPL; deferral of final NPL sites must be
addressed under the Agency's deletion policy, as described above.

Coordination Between Programs

While deferral from one program to another is typically the
most efficient and desirable way to address overlapping cleanup
requirements, in some cases, full deferral will not be appropriate
and coordination between programs will be required. The goal of
any approach to coordination of remedial requirements should be to
avoid duplication of effort (including oversight) and
second-guessing of remedial decisions. We encourage you to be
creative and focus on the most efficient path to the desired
environmental result as you craft strategies for coordination of
cleanup requirements under RCRA and CERCLA and between federal and
state/tribal cleanup programs.

Several approaches for coordination between programs at
facilities subject to both RCRA and CERCLA are currently in use.
It is important to note that options for coordination at federal
facilities subject to CERCLA 120 may differ from those at
non-federal facilities because of certain prescriptive
requirements under 120. EPA anticipates issuing further guidance
on coordination options specific to federal facilities through the
interagency Lead Regulator Workgroup. Current approaches that are
in use include:

Craft CERCLA or, RCRA decision documents so that cleanup
responsibilities are divided. CERCLA and RCRA decision documents
do not have to require that the entire facility be cleaned up
under one or the other program. For example, at some facilities
being cleaned up under CERCLA, the RCRA units (regulated or solid
waste) are physically distinct and could be addressed under RCRA.
In these cases, the CERCLA decision documents can focus CERCLA
activities on certain units or areas, and designate others for
action under RCRA. When units or areas are deferred from CERCLA to
RCRA, the CERCLA program should include a statement (e.g., in a
ROD or memorandum submitted to the administrative record) that
successful completion of these activities would eliminate the need
for further cleanup under CERCLA at those units and minimal review
would be necessary to delete the site from the NPL. Similarly,
when units or areas are deferred from RCRA to CERCLA, RCRA permits
or orders can reference the CERCLA cleanup process and state that
complying with the terms of the CERCLA requirements would satisfy
the requirements of RCRA.

Establish timing sequences in RCRA and CERCLA decision documents.
RCRA and CERCLA decision documents can establish schedules
according to which the requirements for cleanup at all or part of
a facility under one authority would be determined only after
completion of an action under the other authority. For example,
RCRA permits/orders can establish schedules of compliance which
allow decisions as to whether corrective action is required to be
made after completion of a CERCLA cleanup or a cleanup under a
state/tribal authority. After the state or CERCLA response is
carried out, there should be no need for further cleanup under
RCRA and the RCRA permit/order could simply make that finding.
Similarly, CERCLA or state/tribal cleanup program decision
documents could delay review of units or areas that are being
addressed under RCRA, with the expectation that no additional
cleanup will need to be undertaken pending successful completion
of the RCRA activities, although CERCLA would have to go through
the administrative step of deleting the cite from the NPL.

A disadvantage of this approach is that it contemplates subsequent
review of cleanup by the deferring program and creates uncertainty
by raising the possibility that a second round of cleanup may be
necessary. Therefore, we recommend that program implementers look
first to approaches that divide responsibilities, as described
above. A timing approach, however, may be most appropriate in
certain circumstances, for example, where two different regulatory
agencies are involved. Whenever a timing approach is used, the
final review by the deferring program will generally be very
streamlined. In conducting this review, there should be a strong
presumption that the cleanup under the other program is adequate
and that reconsidering the remedy should rarely be necessary.

The examples included in this memo demonstrate several
possible approaches to deferring action from one cleanup program
to another. For example, under RCRA, situations are described
where the RCRA corrective action program would make a finding that
no action is required under RCRA because the hazard is already
being addressed under the CERCLA program, which EPA believes
affords equivalent protection. In other examples, the RCRA program
defers not to the CERCLA program per se, but either defers to a
particular CERCLA ROD or actually incorporates such ROD by
reference into a RCRA permit or order. In addition, there are
examples where the Agency commits to revisit a deferral decision
once the activity to which RCRA action is being deferred is
completed; in other situations, reevaluation is not contemplated.
As discussed in this memorandum, no single approach is
recommended, because the decision of whether to defer action under
one program to another and how to structure such a deferral is
highly dependant on site-specific and community circumstances. In
addition, the type of deferral chosen may raise issues concerning,
for example, the type of supporting documentation that should be
included in the administrative record for the decision, as well as
issues concerning availability and scope of administrative and
judicial review.

Agreements on coordination of cleanup programs should be
fashioned to prevent revisiting of decisions and should be clearly
incorporated and cross-referenced into existing or new agreements,
permits or orders. We recognize that this up-front coordination
requires significant resources. Our expectation is that, over the
long-term, duplicative Agency oversight will be reduced and
cleanup efficiency will be enhanced.

RCRA Closure and Post-Closure

Some of the most significant RCRA/CERCLA integration issues
are associated with coordination of requirements for closure of
RCRA regulated units (see Footnote 3) with other cleanup
activities. Currently, there are regulatory distinctions between
requirements for closure of RCRA regulated units and other cleanup
requirements (e.g., RCRA corrective action requirements). RCRA
regulated units are subject to specific standards for operation,
characterization of releases, ground water corrective action and
closure. Coordination of these standards with other remedial
activities can be challenging. In the November 8, 1994 proposed
Post-Closure Rule (59 FR 55778), EPA requested comment on an
approach that would reduce or eliminate the regulatory distinction
between cleanup of releases from closed or closing regulated units
and cleanup of non-regulated unit releases under RCRA corrective
action. The Office of Solid Waste will address this issue further
in the final Post-Closure and Subpart S rules.

At the present time, however, the dual regulatory structure
for RCRA closure and other cleanup activities remains in place.
There are several approaches program implementors can use to
reduce inconsistency and duplication of effort when implementing
RCRA closure requirements during CERCLA cleanups or RCRA
corrective actions. These approaches are analogous to the options
discussed above for coordination between cleanup programs. For
example, a clean-up plan for a CERCLA operable unit that
physically encompasses a RCRA regulated unit could be structured
to provide for concurrent compliance with CERCLA and the RCRA
closure and post-closure requirements. In this example, the RCRA
permit/order could cite the ongoing CERCLA cleanup, and
incorporate the CERCLA requirements by reference. RCRA public
participation requirements would have to be met for the
permit/order to be issued; however, at many sites it may be
possible to use a single process to meet this need under RCRA and
CERCLA.

At some sites, inconsistent cleanup levels have been applied
for removal and decontamination ("clean closure") of regulated
units and for site-wide remediation under CERCLA or RCRA
corrective action. Where this has happened, clean closure levels
have been generally set at background levels while, at the same
site, cleanup levels have been at higher, risk-based
concentrations. To avoid this inconsistency and to better
coordinate between different regulatory programs, we encourage you
to use risk-based levels when developing clean-closure standards.
The Agency has previously presented its position on the use of
background and risk-based levels as clean closure standards (52 FR
8704-8709, March 19, 1987; attached). This notice states that
clean closure levels are to be based on health-based levels
approved by the Agency. If no Agency-approved level exists, then
background concentrations may be used or a site owner may submit
sufficient data on toxicity to allow EPA to determine what the
health-based level should be.

EPA continues to believe, as stated in the March 19, 1987
notice, that risk-based approaches are protective and appropriate
for clean-closure determinations. In EPA's view, a regulatory
agency could reasonably conclude that a regulated unit was
clean-closed under RCRA if it was cleaned up under Superfund, RCRA
corrective action, or certain state/tribal cleanup programs to the
performance standard for clean closure. This performance standard
can be met with the use of risk-based levels. RCRA units that did
not achieve the closure performance standard under a cleanup would
remain subject to RCRA capping and post-closure care requirements.

The 1987 federal register notice described EPA's policy that
the use of fate and transport models to establish risk levels
would be inappropriate for clean closure determinations. This
discussion, however, also included the statement that, after
additional experience with clean closures, "the Agency may decide
that a less stringent approach is sufficiently reliable to assure
that closures based on such analyses are fully protective of human
health and the environment." After nine years of further
experience, EPA believes that, consistent with the use of
risk-based standards in its remedial programs, use of fate and
transport models to establish risk levels can be appropriate to
establish clean closure determinations. EPA today announces that
it is changing its 1987 policy on evaluating clean closure under
RCRA to allow use of fate and transport models to support clean
closure demonstrations. EPA intends to publish this change in the
Federal Register in the near future.

We encourage you to consider risk-based approaches when
developing cleanup-levels for RCRA regulated units and to give
consideration to levels set by state/tribal programs which use
risk-based approaches. EPA is developing guidance on risk-based
clean closure and on the use of models to meet the clean closure
performance standard.

Since almost all states oversee the closure/post-closure process
and more than half implement RCRA corrective action, coordination
of RCRA corrective action and closure will often be solely a state
issue. However, if a state is not authorized for corrective
action, or if a facility is subject to CERCLA as well as RCRA
corrective action, close coordination between federal and state
agencies will be necessary. As discussed above, actual approaches
to coordination or deferral at any site should be developed in
consideration of site-specific and community concerns.

Summary

We encourage you to continue your efforts to coordinate
activities between the RCRA and CERCLA programs and between state,
tribal and federal cleanup programs. We are aware that several of
the EPA Regions are considering developing formal mechanisms to
ensure that coordination will occur among these programs. We
endorse these efforts and encourage all Regions, states and tribes
to consider the adoption of mechanisms or policies to ensure
coordination. If you have any questions on the issues discussed in
this memorandum, or on other RCRA/CERCLA issues, please call Hugh
Davis at (703) 308-8633.

Attachments

cc: Craig Hooks, PFEO
Barry Breen, OSRE
Robert Van Heuvelen, ORE
Steve Luftig, OERR
Michael Shapiro, OSW
Jim Woolford, FFRRO
Regional RCRA Branch Chiefs
Regional CERCLA Branch Chiefs
Federal Facilities Leadership Council
Tom Kennedy, Association of States and Territorial Solid Waste
Management Officials
Robert Roberts, Environmental Council of States
John Thomasian, National Governors Association
Brian Zwit, National Association of Attorneys General

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Footnotes:

1 In a few, limited cases, program differences may be
sufficiently great to prevent deferral to the other program (e.g.,
the inability of CERCLA to address petroleum releases or RCRA to
address certain radioactive materials). In these instances we
encourage remedial programs to coordinate closely with each other
to minimize duplication of effort, including oversight.

2 Currently, the RCRA deletion policy does not pertain
to federal facilities, even if such facilities are also subject to
subtitle C of RCRA. Site Managers are encouraged to use
interagency agreements to eliminate duplication of effort at
federal facilities; the Lead Regulator Workgroup intends to
provide additional guidance on coordinating oversight and
deferring cleanup from one program to another at federal
facilities.


3 In this document, the term "regulated unit" refers to
any surface impoundment, waste pile, land treatment unit or
landfill that receives (or has received) hazardous waste after
July 26, 1982 or that certified closure after January 26, 1983.