About the RCRA Corrective Action Project

About the RCRA Corrective Action Project

Introduction

The RCRA Corrective Action Project was established in 1988 by a group of concerned Fortune 50 companies in the wake of EPA’s earliest draft corrective action regulatory proposals. Current Project members include BP, Chevron, ConocoPhillips, Delphi Automotive Systems, Dow Chemical, E.I. duPont de Nemours & Co., Inc., General Electric Company, General Motors Corporation, Sunoco Inc., U.S. Steel, United Technologies Corporation, and Waste Management, Inc.

Project Goals

The RCRA Corrective Action Project has two main purposes. One is to advocate cleanup standards and procedures that achieve environmental benefits in a risk-based and cost-effective manner. The second is to provide unique opportunities to stay informed on critical issues and strategies through informed discussions with each other and with senior EPA and state leadership and staff, as well as through special presentations at Project meetings.

Throughout the 1980s and mid-1990s, both public debate and governmental action were dominated by the Superfund program. Many companies have calculated, however, that their prospective costs and liabilities for remediation of contaminated sites will be far greater under RCRA than under Superfund. Actual cleanup activity moved more slowly under RCRA, which allowed government staff to become committed to a number of policies and practices that are detailed, rigid, and unrealistic. This created critical needs for regulatory officials and industry representatives to work together constructively to make adjustments so that RCRA corrective action will be flexible, practical, and achievable. RCAP has played a major role in meeting that need.

RCAP’s Successful Advocacy Program

The Project has outstanding credibility with EPA. It has unique status as an organization of legal and technical experts from a broad cross-section of key U.S. industries with vast experience and understanding in the administration of the RCRA corrective action program. The Project has repeatedly been in the forefront of assisting EPA to achieve reform of that program. Highlights over the last several years include the following:

Supporting EPA to initiate the corrective action administrative reforms that were announced by Assistant Administrator Timothy Fields in July 1999 and then expanded with additional reforms announced in January 2001. Those reforms transformed the program by stating a new emphasis that corrective action should be fast, flexible, and cost-effective.
Working closely with EPA to scope out and implement the Environmental Indicators effort to fulfill EPA's commitment for RCRA under the Government Performance and Results Act – an effort that culminated in success when both the Human Health and the Ground Water Control goals were achieved by September 30, 2005.
Co-sponsoring with EPA a highly successful series of National Corrective Action Conferences held over the past several years in Chicago, New Orleans, Orlando, and Denver.
Carrying out a strong educational effort in the fall of 2002 after EPA floated draft guidelines for control of Vapor Intrusion, leading to revisions that modified a number of features that would have caused serious implementation problems.
Persuading EPA in its development of its "Completion Guidance," issued in February 2003, to give greater recognition to cleanups at operating industrial facilities as final and complete so long as use of the site remains unchanged.
Conducting active dialogue with the EPA Environmental Financial Advisory Board to assure it has deeper understanding of financial implications of possible changes that have been suggested to Financial Assurance requirements.

Project Leadership

With the retirement of John Quarles at the end of 2005, leadership of the Project is being provided by the team of Mike Steinberg, Marianne Horinko, and Linda Eaton. Mike is an outstanding environmental regulatory and litigation lawyer who has worked with RCRA issues since 1979 and has in-depth experience with many current corrective action issues. Marianne recently served as the Acting Administrator of EPA and before that was for three years the EPA Assistant Administrator for OSWER, directly responsible for managing the RCRA program. She brings enormous prestige and contacts to RCAP, as well as her detailed understanding of the issues. Marianne and Mike worked on cleanup issues together in her earlier years as an associate at Morgan Lewis. Linda Eaton has served as the principal project manager for RCAP for the past 18 years and will continue to provide invaluable assistance in that role.

Ongoing Project Activities

Taking a vigorous advocacy role with EPA Headquarters and Regions and with states authorized for corrective action on corrective action-related issues of concern to Project members.
Providing a forum for Project member company representatives to network on corrective action issues of common concern, enabling them to be more effective in managing their own sites.
Providing a neutral forum for free exchange of dialogue with EPA senior officials on the status and direction of the corrective action program.
Sponsoring a Long-Term Stewardship “Summit” that brought together top-level representatives from industry, government and non-governmental organizations for in-depth discussions about the significant aspects of long-term stewardship.
Proving in-depth legal and factual analysis for the Project membership on areas of concern to support arguments on facility-specific implementation issues at the EPA Regional and State levels.
Maintaining a comprehensive repository of EPA regulations and guidance documents and associated case law pertinent to implementation of the RCRA corrective action program.

Pending Major Policy Issues

As reflected above, RCAP has a broad agenda and a long history of achievements. The immediate future, however, presents a special need for strong advocacy efforts. Over the next several years, EPA must address a collection of important policy issues that will shape the implementation of RCRA corrective action by EPA and the states long into the future, including the following:

2020 Vision and 2008 GPRA Goals – In May of 2004 EPA launched an ambitious program calling for all significant RCRA facilities to reach “Construction Complete” by 2020. In the meantime, EPA was also obliged under the Government Performance and Results Act to achieve, among other goals, to have a final remedy decision in place at 36% of the 1,968 sites on the “2008 Baseline,” and have final remedies constructed at 27% of those sites. At the end of 2008, the “RCRA Cleanup Baseline” was expanded to 3,746 facilities listed in the 2020 Corrective Action Universe. Although EPA had great success in achieving its 2005 and 2008 environmental indicators, to achieve “construction complete” at those facilities in the 2020 Corrective Action Universe will take enormously creative efforts by federal and state regulators working with these site owners and operators.
Uniform Environmental Covenants Act – RCAP participated directly in the development of this proposed uniform state law to assure the legal validity and enforceability of Institutional Controls. As of mid-2008, 22 states have enacted UECA, and the legislation has been introduced in an additional 7. The effort to promote this legislation should be carried to all remaining states.
Long-term Stewardship -- Long-term Stewardship (LTS) consists of the activities and processes used to control and manage the on-site waste materials and contaminated environmental media that remain at a cleanup site over long periods of time. LTS ensures that any land use/legal controls and/or engineering controls mandated as part of the cleanup are implemented and enforced. Yet LTS poses complicated and vexing issues. Of particular concern are questions about whose responsibility it will be, how and by whom will institutional controls be implemented, monitored, and enforced; who will finance LTS; and how can third-party liability claims be avoided where land use changes or property is taken by eminent domain. Strengthening the working relationships among EPA, the states, the private sector, and the NGOs will be increasingly important in the years ahead as the practical need for solutions becomes ever more urgent.
Working with State Agencies – Since nearly all states have now been authorized by EPA to administer the RCRA corrective action program, state leaders are exerting greater influence on EPA policy formulation. This presents both an opportunity and a need for RCAP to strengthen our contacts with those state leaders. Recent meetings with representatives from ASTSWMO, ECOS, NALGEP and numerous state environmental agency officials have resulted in constructive and informative exchanges that hold the promise of encouraging streamlined, flexible approaches to corrective action.

For more information on the Project, please call Michael Steinberg, Counsel to the RCRA Corrective Action Project, at 202.739.5141, Marianne Horinko at 202.955-6202, or Linda Eaton at 202.739.5314.

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