Waste Makes Haste

• By Rusty B. Norris, PE, PLS, RSM
• Jan 01, 2003

Despite changes in the economy and security concerns, 2002 was an active year for developments affecting waste management and cleanup, and 2003 looks to be more of the same. In particular, legislation, rulemaking and agency guidance are looking to address cleanup activities at waste sites, with the aim of making them more efficient. As with any change, however, these new developments can result in uncertainty, at least in the short term.

As has been the case in past years, both the U. S. Environmental Protection Agency (EPA) and the regulatory community are addressing the issue of brownfield projects, this time in the aftermath of the 2002 Superfund Amendments, signed by President George W. Bush on January 11, 2002. Some of the significant provisions of the legislation include limited liability under certain circumstances for property owners whose land has been contaminated by passive migration of constituents from contiguous (or other similarly situated) property; limited liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) for certain bona fide prospective purchases (BFPPs) of contaminated property; and attempts to extend the protections of CERCLA's "innocent landowner" provision. Both EPA and the regulated community will continue to explore the boundaries of this legislation.

Along these lines, on May 31, 2002, EPA issued guidance with respect to BFPPs and the new Superfund Amendments. The guidance elaborates on the limitation on liability in the Superfund Amendments for those qualifying as BFPPs. As a result of these amendments, EPA contends that Prospective Purchaser Agreements from EPA will be largely unnecessary. Specifically, EPA contends that persons who meet the BFPP criteria "may purchase property with knowledge of contamination and not acquire liability under CERCLA." (www.epa.gov/brownfields/html-doc/bfpp0502.htm)

EPA predicts that this protection will expedite transactions and lower associated costs. Time to sort out the contours of the BFPP criteria will be necessary, however, before purchasers can enter into such transactions with confidence. For example, one of the BFPP criteria requires the person to exercise "appropriate care" with respect to the hazardous substances at the site and take "reasonable" steps to limit releases and exposure. It will likely take some time to develop an agreed-upon definition of this standard.

Another novel aspect of the Superfund Amendments is to encourage brownfield redevelopment and authorize financial assistance to eligible entities (generally state or local government-created entities, Indian tribes, etc.) if the president determines that such assistance will protect human health and the environment and either promote economic development or enable the creation or preservation of parks and greenways. On October 24, 2002, EPA announced the availability of Brownfields Grant Application Guidelines pursuant to the Superfund Amendments. See 67 Federal Register 65,348 (Oct. 24, 2002). Three types of grants are available for sites contaminated by petroleum, hazardous substances and/or other pollutants. Brownfield assessment grants of up to $200,000 over two years are available to inventory, characterize, assess and conduct planning and community involvement related to brownfield sites. Revolving loan fund grants (up to $1 million over five years) are available to provide funding to carry out cleanup activities. Finally, cleanup grants (each funded at $200,000 over two years) also are available to provide funding for cleanup activities. Initial proposals were due to EPA on December 16, 2002, with final proposals due on March 5, 2003.

In 2002, EPA published a draft guidance document related to facilities governed under the Resource Conservation Recovery Act (RCRA), which is entitled "Completion of Corrective Action Activities at RCRA Facilities," 67 Federal Register 9174 (February 27, 2002). The draft guidance describes two types of completion determinations: "Corrective Action Complete" and "Corrective Action Complete with Controls." In publishing the draft, EPA specifically requested comments on issues related to terminology, institutional controls that might be used following completion of corrective action and situations in which no permit or order may be required. Public comments on the proposed memorandum suggest that EPA's standards for groundwater are too stringent and will take an unreasonably long period of time to meet. It remains to be seen how EPA will resolve these groundwater issues and how this decision will impact RCRA corrective actions.

In another action aimed at addressing cleanups under the Comprehensive Environmental Response, Compensation and Liability Act (commonly referred to as CERCLA or Superfund) and RCRA corrective actions, EPA finalized its proposed amendments to its rules addressing Corrective Action Management Units (CAMUs) in January of 2002.¹ The final rule largely adopted the provisions in the proposed rule allowing use of CAMUs at hazardous waste clean-up sites. The rule is aimed at furthering EPA's policy "to remove the disincentives to cleanup that result from applying RCRA regulations for as-generated hazardous wastes to cleanup wastes."²

Following the decision by the U. S. Court of Appeals for the Eighth Circuit in Harmon Industries v. Browner, 191 F. 3d 894 (8^th Cir. 1999), courts have struggled with when EPA can "overfile," or duplicate an enforcement action already taken by a state. In Harmon, the court held that EPA was not permitted to overfile a RCRA claim when the state had already taken an enforcement action. In September 2002, the United States Court of Appeals for the Tenth Circuit rejected the Harmon decision in the case United States v. Power Engineering Co., 303 F.3d 1232 (10^th Cir. 2002). The split in the Circuits makes the issue of "overfiling" ripe for review in the U. S. Supreme Court, and until this issue is clarified, the spectre of overfiling remains an uncertainty for the regulated community.

Despite attempts to pass legislation affecting chemical security as of this writing, the U. S. Congress has yet to pass a bill addressing these issues. Although President Bush signed legislation on November 25, 2002, establishing a cabinet department of homeland security, a chemical security bill was absent. The Chemical Security Act of 2002 (S. 1602) has yet to be passed, and the fate of this legislation prior to the new year remains unclear. S. 1602 would require EPA, in consultation with the head of Office of Homeland Security and state and local agencies, to promulgate regulations designating certain categories of chemicals as high priority. Operators of high priority chemical sources would be required to assess their vulnerability to a terrorist attack, identify hazards that may result from unauthorized chemical releases and prepare a prevention, preparedness and response plan that incorporates the results of these assessments.

In a June 19, 2002, letter to the Honorable Tom Ridge, Director of the Office of Homeland Security, the House Committee on Energy and Commerce remarked that current environmental legislation is insufficient to address security issues and to protect sensitive information that would likely be developed as part of threat assessments. Specifically, the letter states in particular that "the Clean Air Act was not enacted with deliberate terrorist actions in mind, and does not provide either the statutory authority or the appropriate framework for such assessments." Certainly many industries are, or should be, assessing security issues, and new legislation and/or regulations not only would provide operators with a common framework and standard of care, but also would provide more certain protection of sensitive information.

In an October 1, 2002, memo, EPA announced new national and regional cleanup goals for the underground storage tank (UST) program. See memo from Cliff Rothstein, director, Office of Underground Storage Tanks, to EPA UST-LUST regional division directors, Region 1-10 (Oct. 1, 2002). According to the memo, a backlog of over 145,000 cleanups remain to be completed at sites in the United States. In order to reduce this backlog, EPA is targeting completion of 18,000 to 23,000 cleanups each year for fiscal years 2003 to 2007. If EPA and the states reach the upper range of this goal, they will have cut the current backlog in half by 2007. EPA also announced in this memo that it is considering a change in the definition of cleanup to capture those sites "where a release has been confirmed and the state has determined that no action is required." According to EPA, this change would allow states to count such sites as completed cleanups for purposes of meeting the new goals announced in the memo.

¹ 67 Fed. Reg. 2962 (January 22, 2002).

² Id. at 2964.

This article originally appeared in the 01/01/2003 issue of Environmental Protection.