Cleaning Up Its Act

• By Steven W. Sisk
• Jan 01, 2002

With resources at U.S. Environmental Protection Agency (EPA) stretched thinner in the aftermath of September 11, and Congress focused elsewhere, the extension of the favorable tax treatment given to brownfield projects through December 2004 stands out as a single legislative accomplishment. The brownfield program has been widely viewed as a model in providing flexibility and incentives to business to move cleanups forward and one that could provide lessons for the more rigid cleanup process required under the Resource Conservation and Recovery Act (RCRA).

The carry-over of the lessons learned in the brownfield program into RCRA that began in 2000 gained momentum in 2001 and is being further encouraged in 2002. Building on the first round of RCRA brownfield pilot projects begun in April 2000, EPA announced a second round in December 2000. The results were reviewed by EPA's Office of Solid Waste in a September 2001 summary report, which concluded that significant effort is needed to incorporate a brownfield approach into the RCRA cleanup program. The report noted that the pilots pointed the way towards streamlining and accelerating the RCRA process and placing the focus on results and the needs of the community. An additional round of pilots is planned to build further on the lessons learned. At some point, however, program-wide guidance may be needed to move the RCRA program toward the new model more broadly.

The most significant regulatory developments under RCRA this year likewise concern the corrective action cleanup process and EPA's continued attempts to streamline and accelerate cleanups. In October 2001, EPA issued a revised Handbook of Groundwater Protection and Cleanup Policies for RCRA Corrective Action. In response to comments on the May 2000 draft, in this final version, EPA attempted to provide greater flexibility. For example, it considered alternative points of compliance and uses of groundwater, as well as a focus on short term and intermediate goals in addition to final cleanup.

Again looking towards the improvement of RCRA cleanups, on November 20, 2001, EPA proposed to allow hazardous waste otherwise eligible for placement in a Corrective Action Management Unit (CAMU) and treated to the standards applied to CAMU wastes, to be disposed off-site in hazardous waste landfills instead.¹ This proposed change was backed by the Environmental Technology Council, a waste treatment trade association, along with other industry groups and proposed by EPA as promoting more aggressive remediation. The rule holds out the prospect of relief from the most burdensome aspects of the land disposal restrictions for some cleanup wastes, if it is ultimately finalized as proposed. The comment period on the rule closed on December 5, 2001, but beyond that, it is not clear when final action may be taken.

There are incentives for EPA to press forward with the rule. Presently, hazardous remediation waste sent off-site must be managed as if it were waste newly generated in an industrial process, and as a result, it is subject to the full requirements of Subtitle C of RCRA. EPA sees that applying these stringent requirements to clean up wastes has acted as a strong disincentive for parties to conduct more aggressive cleanups. To promote cleanups in which wastes are sent off-site for management in more protective RCRA-regulated units, rather than left in place on-site, EPA has proposed to relax the land disposal treatment standards otherwise applicable to the wastes.

The proposed rule has its own burdens, however. Under the rule, site-by-site approval would be required by the regional administrator or the authorized state program. The party seeking approval would have to demonstrate that the wastes are "CAMU-eligible," that is, that they are wastes or environmental media² or debris managed in order to carry out a cleanup, rather than wastes generated in on-going industrial processes. There is also a discretionary "kick-out" provision that would allow the regional administrator to deny the request based on prior non-compliance. Finally, the wastes must meet the proposed CAMU treatment standards, which require treatment of "principal hazardous constituents" to specified national minimum standards, subject to certain adjustment factors.

In a similar move, on October 12, 2001,³ EPA issued a proposed rule to create a "standardized permit" for facilities that manage the hazardous waste they generate in units, such as tanks, containers and containment buildings. It would apply to those facilities that otherwise require RCRA permits, but streamline the process. In the same notice, EPA asked for comment on allowing RCRA permitted facilities to satisfy corrective action cleanup requirements under the direction of alternative state cleanup programs, again signaling the agency's willingness to consider alternatives to what has often otherwise been a burdensome and expensive cleanup program.

^{1 66 Fed. Reg. 58085 (November 20, 2001).}

^{2 Media include contaminated soil, groundwater or surface water.}

^{3 66 Fed. Reg. 52192 (October 12, 2001).}

^{EPA Brownfields Homepage -- www.epa.gov/brownfields}

^{EPA RCRA Corrective Action Hazardous Waste Cleanup Program -- www.epa.gov/epaoswer/hazwaste/ca/index.htm}

^{EPA's Handbook of Groundwater Protection and Cleanup Policies for RCRA Corrective Action -- www.epa.gov/correctiveaction/resource/guidance/gw/gwhandbk/gwhndbk.htm}

This article originally appeared in the 01/01/2002 issue of Environmental Protection.