Chapter 4: Public Participation in RCRA Corrective Action Under Permits and Section 3008(h) Orders Introduction RCRA requires owners and operators of hazardous waste management facilities to clean up contamination resulting from current and past practices. These cleanups, known as corrective actions, reduce risks to human health and the environment. As with the rest of the RCRA program, state environmental agencies can receive authorization from EPA to implement the corrective action program. The corrective action requirements in authorized states must be at least as stringent as the federal requirements and may be more stringent. Where states implement the program, EPA plays an oversight role; the Agency implements the program in non-authorized states. This chapter lays out a framework for corrective action public participation that follows the typical approach to facility cleanup (e.g., site investigation, analysis of alternatives, remedy selection). However, alternative approaches may be used provided they achieve the goals of full, fair, and equitable public participation. More than 5,000 facilities are subject to RCRA corrective action. The degree of cleanup necessary to protect human health and the environment varies significantly across these facilities. Few cleanups will follow exactly the same course; therefore, program implementors and facility owners/operators must be allowed significant latitude to structure the corrective action process, develop cleanup objectives, and select remedies appropriate to facility-specific circumstances. Similar latitude must be allowed in determining the best approach to public participation, in order to provide opportunities appropriate for the level of interest and responsive to community concerns. At the federal level, corrective actions may take place under a RCRA permit or as an enforcement order under Section 3008 of RCRA. In authorized states, corrective action may take place under a state-issued RCRA permit, a state cleanup order, a state voluntary cleanup program, or another state cleanup authority. Since authorized states may use a variety or combination of state authorities to compel or oversee corrective actions, EPA encourages interested individuals to check with their state agency to gather information on the available public participation opportunities. The RCRA corrective action program is the counterpart of EPA's other hazardous waste clean-up program, "Superfund," which is formally known as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Unlike most Superfund clean-ups, RCRA corrective actions generally take place at facilities that continue to operate, and the current facility owner or operator is involved in the cleanup. Because cleanups under RCRA and Superfund often involve similar issues, EPA encourages equivalent public participation procedures in the two programs. Thus, parts of this chapter will refer you to the Community Relations in Superfund handbook (EPA/540/R-92/009, January 1992), which is available by calling the RCRA/Superfund Hotline at 1-800-424-9346. Current Status of the Corrective Action Program On May 1, 1996, EPA published an Advance Notice of Proposed Rulemaking (ANPR) in the Federal Register (61 FR 19432). The Notice: (1) presents EPA's strategy for writing final corrective action regulations; (2) describes the current corrective action program and requests information to help EPA identify and implement improvements to the program; and (3) emphasizes areas of flexibility in the current program and describes program improvements already underway. Public participation during corrective action derives from a combination of regulations and EPA guidance. The regulations set out requirements that facilities and agencies must meet when a permit is issued or modified, under 40 CFR parts 124 and 270, to incorporate corrective action provisions. EPA guidance, on the other hand, suggests additional provisions that the permitting agency may include in the permit. One example of such guidance for corrective action activities is the Proposed Subpart S rule (55 FR 30798, July 27, 1990). The Subpart S regulations are not final, but much of the 1990 proposal is routinely used as guidance by permit writers.1 Since there are no regulations requiring public participation under Section 3008(h) orders, any such activities are based on guidance. EPA policy states that the opportunities for public participation should be generally the same as those ________________ 1 Two provisions of the 1990 proposal were promulgated in 1993: the final corrective action management unit (CAMU) and temporary unit regulations on February 16, 1993 (58 FR 8658). Under this final rule, CAMUs and temporary units may be designated by the regulatory agency in the permit prior to or during remedy selection according to the procedures in 40 CFR 270.41; these units may also be implemented through the use of Section 3008(h) orders or order modifications. Conversely, the facility may request a permit modification to implement a CAMU following the Class 3 permit modification process defined in 40 CFR 270.42. If approval of a temporary unit or time extension for a temporary unit is not requested under a Class 3 permit modification or obtained under a regulatory agency-initiated modification, the facility owner or operator may request approval for a temporary unit according to the procedures for a Class 2 permit modification. Chapter 3 (RCRA Permitting) discusses the public participation activities associated with each level of permit modification. opportunities that accompany corrective action under a permit (see the section called "Special Considerations for Public Participation Activities Under Section 3008(h) Orders" below). The May 1, 1996 ANPR reaffirms the Agency's use of portions of the 1990 proposal as guidance, including many of the portions addressing public participation in corrective action. While much of the 1990 proposal will still be used as guidance, the ANPR emphasizes the need for flexibility in developing site-specific corrective action schedules and requirements, including public participation requirements tailored to meet the needs of the local community. As described in the ANPR, EPA is actively looking for opportunities to identify and implement improvements to make the corrective action program faster, more efficient, more protective, and more focused on results. In the ANPR, the Agency emphasizes that revisions to the corrective action program should also enhance opportunities for timely and meaningful public participation. This chapter outlines the public participation activities associated with the corrective action process under both permits and Section 3008(h) orders. It describes public participation activities currently required under federal regulations and policies, as well as additional activities that EPA recommends. If additional guidance is appropriate upon promulgation and re-proposal of corrective action regulations, EPA will update this chapter and make it available to the public. The three paragraphs below provide a few guidelines for public participation, in the form of overarching principles, which should be considered throughout the corrective action process. Early Participation As we emphasized in Chapter 2, public participation should begin early in the permitting process. It should also begin early in the corrective action process. Many of the important decisions in a corrective action are made during the site investigation and characterization. Overseeing agencies and facilities should make all reasonable efforts to provide for early public participation during these phases. Consistency with Superfund A significant portion of the RCRA corrective action process is analogous to the Superfund process. Due to this similarity, EPA encourages permitting agencies and facilities to make public participation activities under the RCRA system consistent with those activities required under Superfund. For example, RCRA interim actions should provide opportunities for participation that are similar to, or go beyond, Superfund public participation for removal actions, and similar opportunities for participation should be available under both corrective measures implementation and a Superfund remedial action. Shared Responsibility for Public Participation Activities The corrective action process may involve cleanup steps that are initiated by an overseeing agency or a facility owner/operator. Public participation activities will often be more useful for the public if the party who performed the latest cleanup step then conducts the public participation activity. For instance, if the facility owner/operator does a facility investigation, then it would usually be more appropriate for the facility owner/operator to run the public meeting or whatever activity follows the investigation. In addition, EPA recognizes that important forms of public participation take place outside of the formal corrective action process. The Agency encourages public interest, environmental, civic, and other organizations to provide such activities. The Agency also encourages citizens to discuss cleanup and permitting issues with knowledgeable stakeholders in the community. Special Considerations for Public Participation Activities Under Section 3008(h) Orders As we mentioned above, corrective action activities are conducted under an order issued under RCRA Section 3008(h). RCRA 3008(h) orders may be used to get corrective action started in advance of facility permitting or when a facility is closing under interim status. RCRA 3008(h) orders may be issued either on consent or unilaterally. A consent order is issued when the facility and the regulatory agency have come to an agreement about the corrective action; a unilateral order is issued when the regulatory agency and the facility have been unable to agree about the need for, or the scope of, corrective action. As a matter of EPA policy, the substantive corrective action requirements and public participation requirements imposed under an order are generally the same as those that would occur if corrective action were taking place under a permit (61 FR 19432, May 1, 1996); however, because orders have significant administrative differences from permits there are some special considerations. For example: under a Section 3008(h) order, there may be limitations on the permitting agency's ability to release or discuss certain information; no public participation activities are statutorily required under Section 3008(h), though EPA policy is that public participation under corrective action orders be generally the same as under permits; and, while facility owner/operators may agree to conduct public participation activities under a consent order, under a unilateral order public participation responsibilities will likely fall to the permitting agency. In addition to ensuring that appropriate public participation activities occur during implementation of a corrective action order, in some cases, it may be useful to begin public participation prior to the issuance of the order by assessing the community's concerns and identifying the most appropriate means of addressing those concerns. (Assessing a community's concerns and planning for public participation is discussed in greater detail in Chapter 2.) When corrective action will take place under a consent order, care should be taken to explain to the community that corrective action orders on consent are not traditional enforcement actions in that they are simply means to expedite initiation of corrective action activities; they are not typically issued in response to a violation at the facility. Limitations on Releasing Information: When the agency is negotiating an order with the facility, confidentiality of certain information must be maintained. The aim of these negotiations is to encourage frank discussion of all issues and to resolve differences, thereby allowing the agency to issue an order on consent rather than unilaterally. Agency staff should take notice: public disclosure of some information may be in violation of state and federal statutes, and could jeopardize the success of the negotiations, so be sure to coordinate any public notices with enforcement staff before releasing information. Not being able to fully disclose information to the public can pose problems, particularly in a community where interest is high and citizens are requesting information. If interest in the facility is high, the project manager, project staff, and the Public Involvement Coordinator should discuss how to address citizens' concerns without breaching confidentiality. At the very least, the public deserves to know why these limitations are necessary and when and if they will be lifted. Further constraints may be placed upon public participation if discussions with the facility break down, and the case is referred to the Department of Justice (DOJ) to initiate litigation. In this situation, public participation planning should be coordinated with the lead DOJ attorney as well. Strongly Suggested Versus Required Activities: As discussed earlier in this Chapter, EPA's policy is that the substantive corrective action requirements and public participation requirements imposed under an order should be generally the same as those that would occur if corrective action were taking place under a permit. U.S. EPA's Office of Solid Waste and Emergency Response has issued two directives addressing public participation in Section 3008(h) orders: Directive 9901.3, Guidance for Public Involvement in RCRA Section 3008(h) Actions (May 5, 1987) and Directive 9902.6, RCRA Corrective Action Decision Documents: The Statement of Basis and Response to Comments (April 29, 1991). These directives suggest public participation activities in orders, even though such activities are not required by statute. The directives suggest the following activities after a proposed remedy has been selected: Writing a statement of basis discussing the proposed remedy; Providing public notice that a proposed remedy has been selected and the statement of basis is available; Providing a public comment period (30-45 days) on the proposed remedy; Holding a public hearing if requested; and Writing a final decision and response to comments. The remainder of this Chapter reflects EPA's support for having equivalent public participation steps under both permits and orders. While there are no requirements for public participation under orders, EPA strongly suggests the activities reviewed in this Chapter. In our review of the corrective action elements (initial site assessment, site characterization, etc.) in the following pages, we discuss public participation activities that are required or additional. Because EPA strongly suggests public participation activities under orders, we present them under the "Required Activities" headings for each corrective action element. Consent Versus Unilateral Orders: If the agency is issuing a consent order, the agency should consider negotiating with the facility to have it write a public participation plan (if community interest in the facility is high), or at least conduct some activities as terms of the order. If the agency is issuing a unilateral order, however, circumstances may be such that it is necessary and/or appropriate for the agency to assume all or most public participation responsibilities. Care must be used regarding the disclosure of information prior to the issuance of a unilateral order. Premature disclosure may place additional strain on the facility-agency relationship. Public Participation In Corrective Action Because corrective action activities involve investigation of releases and potential releases of hazardous waste, the community is likely to take an active interest. Corrective action investigations and remedial activities may be very visible to the public. Experts visit the facility to conduct investigations, trucks and equipment travel back and forth to the facility, and government agencies oversee activities. Delays in the cleanup or long "down times" between permitting activities are not uncommon. All of these factors can heighten the anxiety and concern of the community. Accordingly, the community may require more information on issues related to current or potential contamination, including levels of contamination, the extent of health and environmental risks, and the potential for future risks. The public may also seek additional opportunities to give input to the overseeing agency or the facility. The regulatory requirements provide a baseline for adequate public participation while leaving a great deal of flexibility in the program. Some situations will call for public participation opportunities that go beyond the regulatory baseline. Where regulations do not specify public participation during corrective action, overseeing agencies and facility owners/operators should develop site-specific public participation strategies that areconsistent with existing requirements and provide for full, fair, and equitable public participation. The scope and complexity of corrective actions will vary significantly across facilities. For this reason, EPA has created a flexible program that allows regulatory agencies to tailor corrective action requirements to facility-specific conditions and circumstances. While EPA's public participation regulations establish a baseline of requirements, some situations will call for public participation opportunities that go beyond the regulatory baseline. This is particularly true in the corrective action program because many of the specific corrective action regulations, including regulations for public participation, are not yet final and because corrective action activities often occur outside the permitting process (e.g., under a federal or state order). In this chapter, we will discuss times during the process when additional public participation can be critical. We encourage stakeholders to follow the guidance in this chapter and Chapter 2 when planning for public participation in the corrective action process. Corrective actions, like most site cleanup activities, usually involve several key elements. These elements are: Initial Site Assessment (RCRA Facility Assessment (RFA)); Site Characterization (RCRA Facility Investigation (RFI); Interim Actions; Evaluation of Remedial Alternatives (Corrective Measures Study (CMS); Remedy Selection; Remedy Implementation (Corrective Measures Implementation (CMI)); and Completion of the Remedy. The corrective action process is not linear. The elements above should not be viewed as prescribed steps on a path, but as evaluations that are necessary to support good cleanup decisions. Because these elements may not occur in the same order (or at all) at every facility, we encourage planners to use them as general guidelines, while leaving flexibility for changes. A successful corrective action program must be procedurally flexible; no one approach to implementing these cleanup elements will be appropriate for all facilities. The seven elements, and the public participation activities associated with them, are described in the sections below. Refer to Chapter 3 for additional information on permitting, including permit modifications, and Chapter 5 for specific details on public participation activities described in this chapter. Initial Site Assessment (RFA) The corrective action process usually begins with an initial site assessment, called a RCRA Facility Assessment or RFA. The RFA is conducted either by the overseeing agency or by the facility with subsequent agency approval. The purpose of an RFA is to gather data about a site, including releases and potential releases of hazardous waste and hazardous constituents, to determine whether a cleanup may be necessary. RFAs usually include (1) a file review of available information on the facility; (2) a visual site inspection to confirm available information on solid waste management units (SWMUs) at the facility and to note any visual evidence of releases; and (3) in some cases, a sampling visit to confirm or disprove suspected releases. The results of an RFA are recorded in an RFA report. The RFA report will describe the facility and the waste management units present at the facility and note any releases or potential releases. It will also describe releases and potential releases from other, non-waste-management-associated sources (e.g., a spill from a product storage tank). Interested individuals may request copies of RFA reports from the appropriate EPA regional office or state agency. In addition to the information recorded in RFA reports, if corrective action is taking place in the context of a RCRA permit, the permit application will also describe the physical condition of the facility including its subsurface geology, the waste management units present at the facility, and any releases and potential releases. The RFA report usually serves as the basis for future corrective actions at a facility. If, after completion of the RFA, it appears likely that a release exists, then the overseeing agency will typically develop facility-specific corrective action requirements in a schedule of compliance, which will be included in the facility's permit or in a RCRA Section 3008(h) corrective action order. In the case of corrective action implemented through a permit, the public may comment on the schedule of compliance for corrective action during permit issuance and subsequent permit modification (see Chapter 3 for more information on the permitting process and permit modifications). When corrective action is implemented though a 3008(h) order, the public should be given an opportunity to comment on the schedule of compliance when the order is issued; however, it may take many months of discussions between the facility owner/operator and the overseeing agency before an order is issued. In the meantime, the facility owner/operator may develop a mailing list, modeled after the mailing list developed under the permitting process, and a public participation plan. On the day the order is issued, the administrative record, containing all information considered by the agency in developing the order, is made available for inspection by the public. The agency may also want to place a copy of the administrative record at a local library close to the facility. The overseeing agency or facility owner/operator should consider writing a fact sheet that gives details of the order and the corrective action process. If there is a high level of interest in the facility, an open house or workshop should be considered. Site Characterization (RFI) A RCRA Facility Investigation or RFI is necessary when a release or potential release is identified and additional information is necessary to determine the nature and scope of corrective action, if any, that is needed. The purpose of an RFI is to characterize the nature and extent of contamination at the facility and to support selection and implementation of a remedy or remedies or, if necessary, interim measures. Required Activities If corrective action is being conducted in the context of a RCRA permit, the public has the opportunity to review and comment on the scope of the RFI and RFI schedules and conditions during permit issuance. The RFI is usually conducted by following an agency-approved RFI plan. If the RFI plan is incorporated into a permit by a permit modification, then the public will have an opportunity to comment on the scope and schedule of the RFI during the modification process. See Chapter 3 for more information on public participation during permit modifications. If corrective action is being conducted under a 3008(h) order, the public should be given the opportunity to review and comment on the scope of the RFI and RFI conditions when the order is issued and/or when the RFI workplan is approved. RFIs can often involve numerous rounds of field investigation and can take months or even years to complete. During the RFI process, it may be necessary to change the RFI requirements or modify the RFI schedule to react to new information. When corrective action is being conducted in the context of a RCRA permit, the public has an opportunity to comment on changes to RFI conditions and schedules during the permit modification process. Significant changes to the scope of RFI requirements are typically Class 3 permit modifications, changes to RFI schedules or investigatory details (e.g., a change in the number of samples to be collected in a given sampling area) are typically considered either Class 1 or Class 2 modifications, depending on their significance. When corrective action is being conducted under an order, the public's opportunities to review changes to RFI conditions and schedules should be consistent with the opportunities that are available under a permit. The facility mailing list, developed during the initial stages of the permitting process, or a mailing list developed during preparation of the corrective action order, should be used and updated throughout the corrective action process in order to keep members of the community informed. (See Chapters 3 and 5 for more information on facility mailing lists.) In some cases (e.g., where there is a high level of public interest in corrective action activities), the overseeing agency will determine that an information repository is needed to ensure adequate public involvement. When corrective action is being conducted under a RCRA permit the agency can require the facility to establish a repository under Section 270.30(m). A repository at the RFI stage will provide access to information from an early stage in the process, though the agency has the discretion to use this provision at any stage in the permitting process or at any stage during the corrective action. If the agency decides to require a repository, it will direct the facility to notify the public of the existence of the repository, including the name and phone number of a contact person. See Chapter 5 for more detail on information repositories. Additional Activities The start of the RFI usually marks the beginning of highly visible, on-going corrective action activities at a facility. Because RFI activities are highly visible and because many of the important decisions regarding the scope of potential corrective actions may be made during the RFI, it will generally be appropriate to reevaluate community concerns and the level of public participation and to revise the public participation plan accordingly (see Chapter 5) when RFIs begin. Such efforts early in the process, before community concerns and issues become overwhelming, will be beneficial in the long run. Developing and distributing fact sheets throughout the RFI process is an excellent way to keep in touch with the community. It is a good idea to issue a fact sheet before the RFI begins to explain the investigation's purpose and scope. Another fact sheet should be issued after the RFI is completed to report the investigation results. EPA encourages all facilities to make the results of the RFI readily available to interested stakeholders. One means of providing access to the information is to send a summary of the RFI report to the facility mailing list, as proposed in the 1990 Subpart S proposal. The facility may choose other means of distributing the information, such as through a fact sheet or project newsletter. The full report should be made available for review in an information repository, if one exists, or through some other method that is convenient for the interested public. The facility owner/operator should provide notice to all adjacent landowners and other persons who may have been affected by releases of contamination, via air or ground water, from the facility. EPA recommends that the owner/operator follow the provisions in the 1990 proposal (proposed Section 264.560(a) and (b)) for notifications for discoveries of contamination (see 55 FR 30882). Informal meetings or workshops held by the facility, the permitting agency, or public interest groups can provide valuable forums for discussing community concerns. Interim Actions Interim actions are activities used to control or abate ongoing risks to human health or the environment in advance of final remedy selection. For example, interim actions may be required in situations where contamination poses an immediate threat to human health or the environment. They also may be required to prevent further environmental degradation or contaminant migration prior to implementing the final remedy. Interim actions may occur at any point in the corrective action process; however, they are often implemented during the RFI or CMS. Required Activities When corrective action is proceeding under a RCRA permit, the permit may identify specific interim measures and/or stabilization measures (if they are known at the time of permit issuance) or may have general conditions that govern when interim measures might be required during the course of the corrective action. In either case, the public can comment on the interim measures strategy in the draft permit as part of the permitting process. When corrective action is proceeding under a 3008(h) order, the public should have the opportunity to comment on specific interim measures or general interim measure conditions when the order is issued, or otherwise in a manner that is consistent with the opportunities available when corrective action takes place under a permit. Additional Activities In recent years EPA has increasingly emphasized the importance of interim measures and site stabilization in the corrective action program. In the ANPR, EPA notes that an overriding goal in our management of the corrective action program is to help reduce risks by emphasizing early use of interim actions (while staying consistent with the environmental objectives at the facility). If a facility owner/operator or the permitting agency anticipates that an early interim action will be the only cleanup step taken over a significant period of time, then the facility or the agency should inform the public of such a plan and receive feedback, unless the immediacy of the situation will not allow for feedback. The facility and the agency should both announce a contact person to provide information and respond to inquiries about the action. Agencies and facilities may find Superfund guidance on removal actions useful in the RCRA context (see Community Relations in Superfund: A Handbook, Chapter 5). It is a good idea to keep the public informed of such activities by issuing fact sheets or holding informal meetings. Because interim measures can be conducted at any stage in the corrective action process, you should incorporate activities related to interim measures into the rest of your public involvement program. Evaluation of Remedial Alternatives (CMS) When the need for corrective measures is verified, the facility may be required to perform a Corrective Measures Study (CMS) to identify and evaluate potential remedial alternatives. In cases where EPA or a state is using performance standards or a similar approach and in cases where the preferred remedial alternative is obvious (e.g., where EPA has issued a presumptive remedy that is appropriate to site-specific conditions),submission of a formal CMS may not be necessary. Required Activities When corrective action is proceeding under a permit, the permit schedule of compliance may already include conditions that specify when a CMS is warranted; the public can comment on these draft permit conditions at the time of permit issuance. However, because the RFI and CMS phases may last several years, depending on the complexity of the facility, the community may be frustrated by the length of time involved and the lack of information on results or findings. Significant changes to the scope of CMS requirements, as specified in the permit, may be considered Class 3 permit modifications requiring significant public involvement. Changes to the CMS schedule, or CMS details are typically considered class 1 or 2 permit modifications, as appropriate. Public participation during corrective action under a 3008(h) order should be consistent with public participation under a permit. The public should have the opportunity to review and comment on the scope of the CMS and CMS conditions when the order is issued and/or when the CMS workplan is approved. Additional Activities In the 1996 ANPR, EPA emphasizes that it expects facility owners/operators to recommend a preferred remedy as part of the CMS. While there is no formal requirement for public participation at this time, EPA strongly encourages the facility to present its preferred remedy to the community before formally submitting it to the agency. The facility should seek community input through an informal meeting, availability session, or another method that encourages dialogue. This early input is likely to improve many preferred remedies and make them more agreeable to communities. Moreover, it will make the facility and the overseeing agency aware of community concerns and ways to address them. Holding workshops and informal public meetings about the CMS process, the remedies being considered, and the activities being conducted at the facility will keep the community involved and informed. Fact sheets distributed at significant milestones during the CMS can keep the community abreast of the progress that has been made. The agency and the facility should provide the name and number of a contact person. A contact person will accept comments and answer questions from the community, disseminate information, demonstrate the agency's and facility's willingness to talk with the community, and give the facility or the agency an opportunity to respond to public concerns. The agency or the facility may even consider establishing a hotline if a large number of people call with questions. The mailing list and local newspapers are good ways to advertise availability of the hotline. Remedy Selection Following receipt of a recommendation of a preferred remedy from the facility owner/operator, the overseeing agency will review the preferred remedy and other remedial alternatives and decide to tentatively approve the preferred remedy, tentatively select a different remedy or require additional analysis of remedial alternatives. The tentatively selected remedy will then undergo public review and comment, usually in the form of a proposed modification to the facility's permit or corrective action order. Following public review, the agency will respond to public comments and then modify the facility permit or corrective action order to incorporate the remedy. Required Activities When corrective action is proceeding under a permit, public review and comment on the tentatively selected remedy is generally conducted using the procedures of 40 CFR 270.41 for agency-initiated permit modifications. For such a modification, 40 CFR 270.41 requires the same level of public participation as is required for a draft permit. The agency must release the proposed modification for public review and issue a public notice announcing that the proposed modification is available for review. The agency must publish this notice in a major local newspaper, broadcast it over local radio stations, and send it to all persons on the mailing list. In addition, agency staff must prepare a fact sheet or statement of basis to explain the proposed modification and the significant factual and legal reasons for proposing the remedy. The statement of basis describes the proposed remedy, but does not select the final remedy for a facility. This approach allows for consideration of additional information during the public comment period. Following the comment period, public comment and/or additional data may result in changes to the remedy or in another choice of remedy. After the agency has considered all comments from the public, the final decision -- selecting the remedy or determining the need to develop another option -- is documented in the response to comments. (For more information on statements of basis, refer to OSWER Directive 9902.6, RCRA Corrective Action Decision Documents: The Statement of Basis and Response to Comments (April 29, 1991)). A 45-day public comment period on the draft permit modification follows publication of the public notice. The comment period provides the public with an opportunity to comment, in writing, on conditions contained in the draft permit modification. If information submitted during the initial comment period appears to raise substantial new questions concerning the draft permit modification, the agency must re-open or extend the comment period. The members of the public may request a public hearing on the draft permit modification. If a hearing is requested, the agency must give a 30-day advance notice to the community that states the time and place of the hearing. The agency Director has the discretion to schedule a public meeting or hearing even if the community does not request one. In some cases, scheduling a public hearing before the public requests one may save valuable time in the modification process and demonstrate a willingness to meet with the community to hear its questions and concerns. After the public comment period closes, the agency must review and evaluate all written and oral comments and issue a final decision on the permit modification. Then the agency must send a notice of decision to the facility owner or operator and any persons who submitted public comments or requested notice of the final decision and prepare a written response to comments. This document must include a summary of all significant comments received during the public comment period and an explanation of how they were addressed in the final permit modification or why they were rejected. The response to comments must be made available through the Administrative Record and the information repository, if one was established, and must be sent to the facility and all persons who submitted comments or requested a copy of your response. When corrective action is proceeding under a 3008(h) order, the Agency's longstanding policy is that the public's opportunity to review and comment on tentatively-selected remedies should be commensurate with the opportunity that would be available if the corrective action were conducted under a permit. At a minimum, this opportunity should include: publishing a notice and a brief analysis of the tentatively-selected remedy (this is typically referred to as a statement of basis) and making supporting information available; providing a reasonable opportunity for submission of written comments; holding a public hearing or public meeting, if requested by the public or determined necessary by the overseeing agency; preparing and publishing responses to comments; and, publishing the final remedy decision and making supporting information available. Additional guidance is available in OSWER Directives 9901.3, Guidance for Public Involvement in RCRA Section 3008(h) Actions (May 5, 1987) and 9902.6 RCRA Corrective Action Decision Documents: The Statement of Basis and response to Comments (April 29, 1991). Additional Activities The agency, public interest groups, or the facility should consider holding workshops or informal meetings during the public comment period to inform the public about the proposed remedy. These discussion sessions can be especially useful when information about corrective measures in a draft permit modification is quite technical or the level of community concern is high. Remedy Implementation (CMI) Once the overseeing agency modifies the permit or corrective action order to include the selected remedy, the facility must begin to implement the remedy. Remedy implementation typically involves detailed remedy design, remedy construction, and remedy operation and maintenance; it is called Corrective Measures Implementation or CMI. Corrective measures implementation is generally conducted in accordance with a CMI plan, approved by the overseeing agency. Required Activities When corrective action is proceeding under a permit, the public will have an opportunity to comment on CMI conditions and schedules during the permit modification for remedy selection or when the permit is modified to incorporate the CMI plan. Significant changes to the scope of CMI may be considered Class 3 permit modifications. Changes to the CMI schedule are typically considered either Class 1 or Class 2 permit modifications, as appropriate. When corrective action is proceeding under a 3008(h) order, the public's opportunity to comment on CMI conditions and schedules should be consistent with the opportunities that would be available if corrective action were taking place under a permit. Additional Activities Remedy implementation will often involve highly visible activities, such as construction of new on-site treatment and containment systems, and staging and transportation of large volumes of materials. These activities may result in increased levels of public interest, which may already be high due to the public's participation in remedy selection. EPA recommends that the facility notify all individuals on the facility mailing list when the construction plans and specifications are available for public review. If the facility has established an information repository, then the plans should go in the repository; otherwise, the facility should place the plans in a convenient location with public access. As mentioned earlier, the corrective action process can take years to complete. Additional public participation activities may be appropriate during corrective measures implementation to inform the community of the progress of the remedial action, especially if the public shows concern over the pace and scope of the cleanup operations. In particular, it may be useful to release periodic fact sheets to the community that report on progress of the cleanup operations. It may also be helpful to hold an availability session/open house near or on the site of the facility to demonstrate or explain the activities involved in the remedy. Completion of Remedy Once corrective measures are complete the overseeing agency will either terminate the corrective action order or modify the permit to remove the corrective action schedule of compliance. Decisions regarding completion of corrective measures can be made for an entire facility, for a portion of a facility, or for a specified unit or release. EPA policy is for the public to be given an opportunity to review and comment on all proposals to complete corrective action. Required Activities When corrective action is proceeding under a permit, proposals to complete corrective measures should follow the procedures for Class 3 permit modifications. See the section on Class 3 modifications in Chapter 3 for details. When corrective action is proceeding under a 3008(h) order and a proposal to complete corrective measures is issued, the public should have notice and comment opportunities that are consistent with the opportunities available under the Class 3 permit modification procedures. Additional Activities In some cases, hazardous wastes or hazardous constituents will remain in or on the land after completion of corrective measures. When this occurs, the overseeing agency may require the facility to record a notation in the deed to the facility property regarding the types, concentrations, and locations of such waste or constituents. Chapter Summary At the federal level, corrective actions may take place under a RCRA permit or as an enforcement order under Section 3008 of RCRA. In authorized states, corrective action may take place under a state-issued RCRA permit, a state cleanup order, a state voluntary cleanup program, or another state cleanup authority. Authorized states may use a variety or combination of state authorities to compel or oversee corrective actions. EPA's recent Advance Notice of Proposed Rulemaking (ANPR) (61 FR 19432, May 1, 1996) for the corrective action program does three things: (1) it presents EPA's strategy for writing final corrective action regulations; (2) it includes a description of the current corrective action program and requests information to help EPA identify and implement improvements to the program; and (3) it emphasizes areas of flexibility in the current program and describes program improvements already underway. The ANPR also affirmed EPA's use of the 1990 proposal as guidance and emphasized the Agency's commitment to enhanced public participation. As a matter of EPA policy, the type and timing of public participation activities for Section 3008(h) orders are generally the same as those for corrective action in permitting. There are three important distinctions between conducting public participation in corrective action under a Section 3008(h) order and through permitting: 1. Under a Section 3008(h) order, there may be limitations on the release or discussion of certain information; 2. No public participation activities are required under Section 3008(h) but they are strongly encouraged in guidance. In addition, the agency may require the facility to conduct additional activities as a term in the order; and 3. Facilities may agree to conduct public participation activities under a consent order, however, under a unilateral order, the responsibility will likely fall to the agency. While being flexible, the corrective actions should provide for early public participation, seek consistency with Superfund community involvement standards, and allow facility owner/operators to perform public participation activities where appropriate. The corrective action process is composed of seven basic elements which are not prescribed steps, but evaluations that are necessary to make good cleanup decisions. Because these elements may not occur in the same order (or at all) in every situation, we encourage planners to use them as general guidelines, while leaving flexibility for changes. A successful corrective action program must be procedurally flexible The basic elements (with corresponding public participation activities that are currently required or suggested): 1. Initial Site Assessment (RCRA Facility Assessment) - Schedule of compliance will go into permit, where public can comment - For enforcement orders, the agency will release administrative record and make it available for public review. The agency may provide a fact sheet and hold an open house or workshop. 2. Site Characterization (RCRA Facility Investigation) - Update mailing list, if necessary - Establish information repository, if required - Revise public participation plan - Modify permit, if necessary, to reflect changes to schedule of compliance - Under an order, provide notice and comment on the planned RFI - Develop fact sheets on the investigations - Mail summary of RFI Report to facility mailing list and make available to the public - Hold informal meetings or workshops - Issue notifications for discovery of contamination 3. Interim Actions -- May occur at any time during the process - Provide for public input and feedback, as appropriate given time constraints, and announce a contact person - Use fact sheets and informal meetings, if appropriate 4. Evaluation of Remedial Alternatives (Corrective Measures Study) - Hold informal meetings or workshops when facility presents preferred remedy - Identify a contact person - Develop fact sheets on the study - Establish a hotline 5. Remedy Selection - Agency-initiated permit modifications follow 40 CFR 124 procedures, including public notice, public comment period, and a hearing (if requested) - For corrective action under an order, the agency should: publish a notice and a statement of basis; take public comment; holding a public hearing or public meeting, if requested by the public or determined necessary by the overseeing agency; prepare and publish responses to comments; and, publish the final remedy decision while making supporting information available. - Hold workshop on proposed remedy - Once final remedy is selected, send out notice of decision - Issue response to comments - Hold informal meetings or workshops on the final remedy 6. Corrective Measures Implementation - Notify public when plans and specifications are available for review - Develop fact sheets on remedy implementation - Coordinate availability session/open house 7. Completion of Remedy - Agency may remove schedule of compliance from the permit or terminate the order by following the Class 3 modifications procedures for a permit or a similar process for an order.