Published in August 2019 Focus on the Environment Newsletter
The Office of Inspector General (OIG) for the U.S. EPA (EPA) is reminding all EPA regions that the status of RCRA Corrective Action Environmental Indicator (EI) determinations on EPA public-facing websites is accurate and up to date. The reminder stems from a recently completed audit of communication of human health risks posed by sites in the EPA Office of Land and Emergency Management (OLEM) programs. The OIG is an independent office within the EPA which audits and investigates the agency to “promote economy and efficiency, and to prevent and detect fraud, waste and abuse.” As a result of the audit, the OIG discovered that EPA’s Cleanups in My Community public website was not depicting the most up-to-date environmental indicator information for a Region 5 RCRA Corrective Action site in Indiana, even though the EPA had been made aware of changes.
EIs are measures used by EPA’s RCRA Corrective Action program to track progress, in environmental terms, at RCRA Corrective Action sites. Two facility wide EIs are currently used in the RCRA Corrective Action program:
The EIs are commonly referred to as the Human Health EI and the Contaminated Groundwater Migration EI, respectively, or by their RCRA tracking database codes of CA 725 for Human Health and CA 750 for Contaminated Groundwater Migration. These measures were established in accordance with the Government Performance and Results Act (GPRA) of 1993 and are reported to congress at the end of each fiscal year.
A positive Human Health EI determination indicates that on a site-wide basis, there are no unacceptable human exposure to “contamination” that can be reasonably expected under current land and groundwater-use conditions. For groundwater, a positive EI determination indicates that the migration of contaminated groundwater has stabilized, and that monitoring will be conducted to confirm that contaminated groundwater remains within the original area of contaminated groundwater.
Documentation of EI determinations is completed by EPA, or by authorized states using EPA forms which were released in 1999. The EPA forms specifically state that the determination should remain in effect only as long as they remain true and must be changed when the regulatory authority becomes aware of contrary information. From roughly 1999 to 2010, achieving the EIs was the primary goal of the RCRA Corrective Action program, with some of the EI determinations completed nearly twenty years ago. The status of these milestones is included on multiple EPA public facing websites, including the Cleanups in My Community website.
Through a June 27, 2019 Management Alert, the OIG notified Region 5 and the OLEM of its findings and recommendations. According to the Management Alert, the RCRA Corrective Action milestones for the Indiana site on EPA’s websites displayed both the Human Health and Contaminated Groundwater Migration EIs as “controlled” when EPA Corrective Action staff had information since 2018 which indicated otherwise. EPA feared its communication of inaccurate and outdated Human Health and Contaminated Groundwater Migration information for the Indiana site could cause individuals to make uninformed decisions about whether, when and how they may want to take protective measures to limit their exposure while living, working, and playing near the site.
The Management Alert included the following recommendations to EPA Region 5 and OLEM:
As documented in a July 17, 2019 response to the OIG, Region 5 has updated the Cleanups in My Community website for the Indiana site and the OLEM has committed to sending a memo to all regions during the 4th quarter of 2019, reminding them to verify that the status of EIs are accurate and that the information is accurately presented on EPAs websites.
It will come as no surprise to the regulated community that RCRA Corrective Action EI determinations are not entirely up-to-date and accurate. The EIs were designed as interim milestones in the Corrective Action process, not final remedy determinations. Consequently, additional data collection often occurs following the EI determination. In the case of the Contaminated Groundwater Migration EI, ongoing groundwater monitoring is necessary for a positive determination, creating the possibility for changes in the determination on a near continual basis. Add to this changing toxicity information (i.e., trichloroethene), emerging contaminants such as per- and polyfluoroalkyls (PFAS), and the sale, re-use, and repurposing of Corrective Action sites, it is likely that more out-of-date EI determinations will be identified.
Owner/operators of RCRA Corrective Action sites can expect EPA and/or their authorized states in the near future to dust off and verify that their EI determinations are correct and up to date. This may in some cases require facilities to collect additional data. Although the focus will be to determine if sites previously considered safe are for some reason no longer safe, owner/operators of sites which have not met the EIs should take this opportunity to determine if sufficient information is currently available to make the case that a positive EI determination can now be made. Cox-Colvin & Associates has assisted numerous clients in obtaining successful EI determinations. If you are unaware of the status of the Corrective Action EIs for your facility or what they mean, please feel free to contact us.
George H. Colvin is a hydrogeologist with over 30 years of consulting experience. Much of his experience has focused on RCRA Corrective Action, RCRA closure, and groundwater investigation, monitoring, and cleanup. He holds a BS in Geology from Ohio University and MS in geology and hydrology from Vanderbilt University. He is a Certified Professional Geologist with the American Institute of Professional Geologists, a registered geologist in Kentucky, Pennsylvania, and Tennessee, and a Certified Hazardous Materials Manager.