Superfund Reform- What Can We Expect?

While the Trump Administrations primary environmental agenda has been focused on deregulation, one area EPA Administrator Scott Pruitt has prioritized is Superfund (i.e. CERCLA).  Superfund is meant to investigate and cleanup the dirtiest sites in the country.  However, its long and complicated investigation, remedy selection and cleanup implementation processes have slowed cleanups to a crawl.  It is certainly a program much in need of an overhaul.

Administrator Pruitt created a task force to provide recommendations for improvement of the Superfund program.  The Administrator stated his goal was to "restore the Superfund program to its rightful place at the center of the agency's core mission."  

The task force was given five goals:

  • Expedite cleanup and remediation;
  • Reinvigorate cleanup and reuse efforts by PRPs;
  • Encourage private investment to facilitate cleanup and reuse;
  • Promoting redevelopment and community revitalization; and
  • Engage with partners and stakeholders.

Ideas were evaluated in each of these areas.  The Administrator notes that some of the 42 strategies recommended will take time, including rule changes.  However, he identified strategies that he has directed the task force to immediately implement, including::

  1. Take immediate action at sites where the risk to human health are not fully controlled;
  2. Use interim or removal actions more frequently to address immediate risks;
  3. Prioritize sites for Remedial Investigation and Feasibility Studies (RI/FS) that require immediate action;
  4. Identify contaminated sediment or complex groundwater sites where adaptive management can be implemented;
  5. Evaluate redevelopment potential for NPL sites;
  6. Track remedy selection in real time with Superfund Enterprise Management Systems;
  7. Focus resources on NPL sites with most reuse potential;
  8. Identify sites for PRP-lead cleanup to spur redevelopment;
  9. Submit the total indirect costs charged to PRPs for 2016 and 2017
  10. Encourage PRPs to work with end users to voluntarily perform assessment and cleanup to spur redevelopment;
  11. Use purchase agreements for potential Bona Fide Prospective Purchasers outlining their actions necessary to preserve their BFPP status;
  12. Use unilateral orders against recalcitrant PRPs to discourage proactive negotiations of response actions; and
  13. Maximize deletions and partial deletions of sites that have been cleaned up.

For the task force's full report click here.

What can we learn from the List of Priority Items?

Vapor Intrusion 

The most immediate take away is that sites that present vapor intrusion risks to on-site or adjacent property owners will be a priority.  In the last five years, vapor intrusion has become a major focus of both U.S. EPA and State EPA's.  

The vapor intrusion pathway is often seen as the most immediate and direct public health threat presented by sites.  Therefore, it is logical to assume that and Superfund sites that present vapor intrusion risks will be prioritized.  Based on the strategies outlined above, it is very likely that we will see an increase in the use of unilateral enforcement by the EPA Region's to address vapor intrusion risks.  

Slow Moving Sites

The task force has targeted sites that have taken "far too long to remediate."  The task force will establish a "Administrator's Top Ten List" that will get weekly attention.  Sites that have been on the NPL for five years or longer without "significant movement" will be reviewed.  

Unfortunately, without a major overhaul to the National Contingency Program (NCP) which governs Superfund, the report and recommendations are highly unlikely to result in significant acceleration of cleanups.

Sites with Redevelopment Potential

Several of the Administrator's recommendations focus on targeting sites with redevelopment potential.  For these sites it is possible that the Agency will be more flexible to voluntary cleanup programs that could put land back into productive use more quickly.  Following the traditional long and drawn out investigation, remedy selection and implementation will not put property back into productive use quickly.

EPA has shown greater flexibility toward accepting state brownfield voluntary cleanup programs.  The focus on redevelopment by the task force provides an opening to PRPs and developers to, perhaps, leverage greater acceptance of these state voluntary brownfield cleanup programs. In reality, leveraging state voluntary cleanup programs may be best opportunity to accelerate cleanup at Superfund sites.

EPA Enacts Major Overhaul to Hazardous Waste Generator Requirements

Late last year U.S. EPA enacted the "Hazardous Waste Generator Improvements Rule" which constitutes a major overhaul of the federal hazardous waste regulations (RCRA) that apply to any generator of hazardous waste.  The new rule impacts thousands of businesses, including even small generators of hazardous waste.  EPA estimates that between 424,100 and 676,900 facilities fall under regulation by the rule.

It is possible that the Trump Administration may try to undo the controversial rule as detailed in the previous post.  However, since the final rule has been published in the Federal Register (81 Fed. Reg. 85732) with an effective date of May 30, 2017 it will be more difficult for the new Administration to revoke the rule.

As to timing of these changes, the RCRA program is primarily administered by the states. Therefore, these major changes will not go into effect in Ohio or other delegated states until they are adopted in state rules which will likely not occur until sometime in 2018.

Here is a summary of some of the more notable changes.

Background on Generator Classifications

Generators of hazardous waste may accumulate certain quantities of waste and store hazardous waste on-site without triggering the need to obtain a permit as a Transporter Storage Disposal Facility (TSDF).  The ability to avoid TSDF status and be exempt from needing a permit has been a huge carrot for generators as it avoids more costly cleanup requirements (i.e. RCRA Closure and RCRA Corrective Action) as well as other more stringent regulatory requirements.

The chart below shows the accumulation and storage requirements under federal law for Very Small Quantity Generators (VSQG), Small Quantity Generators (SQG) and Large Quantity Generators (LQG):

Hazardous Waste Generator Requirements

VSQG SQG LQG
Monthly Generation (Per calendar month) up to 2.2 lbs acute hazardous waste or less than 220 lbs of hazardous waste (about 1/2 of a 55 gallon drum) up to 2.2 lbs of acute hazardous waste or between 220 to 2,200 lbs of hazardous waste (about five 55 gallon drums) up to 2.2 lbs of acute hazardous waste or 2,200 or more lbs of hazardous waste
Total Accumulation On-site up to 2.2 lbs of acute or up to 2,200 lbs of hazardous waste up to 2.2 lbs acute hazardous waste or between 220 lbs to 13,200 lbs of hazardous waste (thirty 55 gallon drums) up to 2.2 lbs of acute hazardous waste or equal to or greater than 13,200 lbs of hazardous waste
Accumulation Time None 180 days or 270 days if TSDF is more than 200 miles away 90 days

Click here for a link to an a detailed reference chart from Ohio EPA on RCRA Generator Requirements.  While the quantities and time periods applicable to the three categories of generators remained largely unchanged, the new rule contains provisions regarding the quantity of residues from cleanup of hazardous waste that can be generated under each generator classification.

Adopted- Loss of Exemption for Certain RCRA Violations

In the newly adopted rule, EPA places the RCRA generator regulations into two categories:

  1. Independent Requirements- a violation of regulatory requirement that subjects the violator to enforcement; or
  2. Condition for Exemption- regulations that must be met or the generator may lose its exemption from permitting requirements as a TSDF.  An example of regulations that are "conditions for exemption" include the generation and accumulation limits in the above chart.  However, the new rule expands this category to include other regulations.

The possibility of losing the exemption from TSDF requirements for more minor violations has huge implications for businesses who generate even small quantities of hazardous waste as well as those service companies that transport hazardous waste.  

In the preamble to the rule, EPA asserts this is not a major change because the federal EPA and delegated states maintain enforcement discretion.  However, with so much at stake with regard to triggering TSDF status EPA's statements in the Preamble provide little comfort to businesses.

Adopted- New Generator Classification- Very Small Quantity Generator (VSQG)

All regulations previously applicable to Conditionally Exempt Small Quantity Generators (CESQGs) will now apply to VSQGs.  

Adopted- Definition of Generator Knowledge and Testing Requirements

The new rule contains definitions of each generator classification- VSQG, SQG and LQG.  The new rule adds more detail as to how to determine whether a waste is deemed hazardous or non-hazardous using the company's knowledge of their processes that generate the waste (i.e. "generator knowledge") or through testing of the waste.

For potential characteristic hazardous waste, under the new rule generators must make the determination anytime in the course of the waste's management if its properties change.  Business commented that this could require constant re-evaluation of characteristic hazardous waste.

Adopted- Episodic Generation

One of the potential benefits of the rule is the flexibility provided to remain in the VSQG or SQG classification even if you have a one time episode which would push you into the higher generator classification (i.e. episodic events).  

A VSQG or SQG can have one episodic event per year (with an opportunity for a second).  The waste generated during the episodic event will not be counted toward your generation classification.  

Before taking advantage of the episodic generation provision, the company must notify either U.S. EPA or the delegated state program at least thirty (30) days prior to initiating a "planned episodic event" (i.e. periodic maintenance like a tank clean out).   Or, notify within 72 hours of an unplanned event (i.e. production upset conditions, spills, acts of nature).   The event must conclude within sixty (60) days (i.e. the waste must be taken off-site).

There are special provisions for VSQGs- a) must maintain a RCRA ID number; b) manifest the waste; c) label episodic waste containers; d) identify a emergency coordinator; and e) maintain records associated with the episodic event.

Adopted-  New Emergency Response Requirements

All generators must document that they have attempted to make arrangements with local emergency responders and keep such documentation in the facility's operating record. New and existing LQG must submit "quick reference guides" with key information regarding waste managed at their site to local responders.  

Adopted- Re-Notification of SQG Status

Under current rules, SQG must only notify EPA or the delegated state one time of their SQG status. The new rule requires re-notification every four years unless the state has more frequent notification requirements.  However, U.S. EPA delayed this provision until 2021 to allow states to update their reporting forms.

Adopted- Flexibility for VSQG to Send Waste to LQG under Common Control

The new rule provide greater flexibility to VSQGs allowing them to send hazardous waste to a LQG which is under control by the same company to consolidate the waste before it is sent to a RCRA TSDF. 

Adopted- New Labeling Requirements

Under the rule, EPA will require all containers, tanks, drip pads and containment buildings to be labeled with information pertaining to the the hazardous of the hazardous waste being accumulated.  This labeling requirement includes to satellite accumulation areas and central accumulation areas.  The enhanced labeling requirements do not require the label to include the identity of the contents in the container.

Prior to sending hazardous waste off-site to a TSDF, containers must be marked with the applicable RCRA waste codes or use a bar-coding system that performs the same function.

Adopted- Webinars and Video Courses Deemed Acceptable Training

The new rule will allow generators to satisfy their personnel training requirements through computer-based and electronic training sessions instead of classroom or on-the job training.

Not Adopted- Record Keeping Requirements for all Non-Hazardous Waste Determinations

Under the current rules, every business that generates a solid waste must evaluate the waste to determine if should be classified and managed as a hazardous waste.  Under current rules,  Large Quantity Generators (LQG) and Small Quantity Generators (SQG) must only keep those records when the determination shows the waste is a hazardous waste.  As part of the Generator Improvements Rule, EPA proposed to expand the record keeping requirement to all records pertaining to evaluation of a waste, even when a waste was determined to be non-hazardous.  EPA argued that it has found that generators fail to make accurate hazardous waste determinations 10% to 30% of the time.

If implemented, this would have amounted to a huge expansion of record keeping requirements. The proposal was strongly opposed by businesses during the public comment period.  EPA decided to drop the requirement in the rule. However, while it elected not to finalize this requirement, EPA noted in the preamble to the rule that maintaining records of any determination a waste was non-hazardous was considered a "best management practice." 

U.S. EPA Regulates Coal Ash under Subtitle D

Following a failure of the dike at the Kingston Fossil Plant in Tennessee which received national attention, the Obama Administration announced it would re-evaluate regulation of coal combustion residuals (CCR) or coal ash.  

The Administration's key decision was whether to regulate CCR under Subtitle C of the Resource Conservation and Recovery Act (RCRA) as a hazardous waste or Subtitle D of RCRA as a non-hazardous waste.  Industry feared that with the national attention from two major spills, EPA would take the more stringent path and regulate CCR as a hazardous waste.  

As indicated by the time line from the Bloomberg BNA article discussing the EPA announcement, EPA has been very slow to make a final decision. 

Time line of EPA Coal Ash Regulation

Dec. 22, 2008—Dike ruptures at the Kingston Fossil Plant in Harriman, Tenn., releasing 5.4 million cubic yards of coal ash slurry into surrounding area.
Jan. 14, 2009—At her Senate confirmation hearing, incoming EPA Administrator Lisa Jackson says the agency will review how it regulates coal ash.
June 21, 2010—The EPA proposes (75 Fed. Reg. 35,128) two possible ways for regulating coal ash—under the hazardous waste provisions of Subtitle C of RCRA or under the nonhazardous waste provisions of Subtitle D.
April 5, 2012—Frustrated with the slow pace of the rulemaking, environmental advocates sue the EPA over failure to complete a mandatory review of RCRA regulations every three years. They seek a deadline for final coal ash standards.
Jan. 31, 2014—Environmental advocates, coal ash recyclers, utilities and the EPA reach an agreement that requires the EPA to complete its coal ash regulations by Dec. 19.
Feb. 2, 2014—140,000 tons of coal ash and wastewater spill from a Duke Energy Corp. into North Carolina's Dan River.
Dec. 19, 2014—The EPA issues a final rule on the management and disposal of coal ash.

On December 19, 2014, EPA released its final CCR rule.  The rule will regulate CCR as solid waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA), rather than as a special waste under Subtitle C.  

If EPA elected to regulate CCR under Subtitle C, EPA would have maintained greater authority over the material and enforcement of standards.  Under Subtitle D, states will take the lead on implementation and enforcement. 

Subtitle D also governs municipal solid waste landfills.  EPA's approach to regulating CCR in many ways is similar to standards established for solid waste landfills.  The rule establishes the following:

  • Minimum national criteria for new and existing CCR landfills and surface impoundments;
  • location restrictions;
  • design requirements;
  • groundwater monitoring, if constituents are detected in groundwater above protective standards, the owner will be required to institute corrective action;
  • inspection requirements, including evaluation of the structural integrity of impoundments;
  • fugitive dust controls;
  • surface water protection requirements; and
  • closure and post-closure care requirements.

Inactive Landfills Will Not Be Regulated

The final rule will become effective six months after publication in the federal register.  The new standards will not apply to CCR landfills that cease receiving waste prior to the effective date ("inactive units").  If these units complete closure (that is dewater and place final cover) within three years of the publication of the rule, then they are not subject to any additional requirements under the rule.

Recycling 

Coal ash is the second largest industrial waste stream.  This final rule supports responsible recycling of coal ash by distinguishing safe, beneficial use from disposal. In 2012, almost 40 percent of all coal ash produced was recycled (beneficially used), rather than disposed.

The rule establishes a comprehensive definition of beneficial use of CCRs. The rule
also clarifies that a use of a CCR that is not beneficial use is disposal.

 

NPDES Permit Pre-Empts RCRA?

An interesting case involving the interplay of the Clean Water Act (CWA) and RCRA highlights the complexity of sites that trigger multiple environmental statutes.  The U.S. District Court of Maryland in Sherrill, et al. v. The Mayor and the City Council of Baltimore, 2014 WL 3555956 ruled that an NPDES Construction Storm Water Permit preempted a RCRA enforcement action.  The Court ruled that the RCRA action sought remedies which would duplicate what had already been required under the NPDES permit.

Facts

The case involves property associated with the City of Baltimore's effort to revitalize its waterfront. The site in question was a former chemical manufacturing plant with historical solvent contamination.  

The City has a redevelopment agreement with a casino operator to construct a new casino on the property.  The City has also placed the property into Maryland's Voluntary Action Cleanup Program (Maryland's brownfield cleanup program) which resulted in the development of a voluntary cleanup plan for the property.

The casino operator complied with Clean Water Act requirements by securing a NPDES General Construction Storm Water Permit for the site.  The storm water permit contains requirements to manage soil and runoff from the property.  A key term of the permit was that the storm water management plan (SWP3) incorporated requirements from the Voluntary Cleanup Plan for the property.

Local residents opposed the casino and brought suit challenging the development plan.  Residents claimed that construction of the casino exacerbated pre-existing contamination on the property in violation of Section 6972 of RCRA.  

The casino operator argued that the RCRA action was preempted by the existence of the NPDES General Construction Storm Water permit under RCRA's anti-duplication provision which states:

nothing in [this Act] shall be construed to apply to (or to authorize any State, interstate, or local authority to regulate) any activity or substance which is subject to the [Clean Water Act]...except to the extent that such application (or regulation) is not inconsistent with the requirements of such Acts.  See, 42 U.S.C. 6905(a)

At issue was whether the existence of the NPDES permit terms requiring management of soil and storm water runoff rendered any potential relief available under RCRA duplicative.

Ruling 

The District Court held that the CWA storm water discharge permit triggered the "anti-duplication" provisions of RCRA and therefore shielded the casino operator from any RCRA liability.  The Court held that the storm water permit legally required implementation of the casino operator's storm water management plan (SWP3).  The SWP3 incorporated that Voluntary Cleanup Plan. Therefore, the cleanup plan, in reality, was no longer voluntary.

The Court held that the SWP3 activities to manage soil and runoff were the same remedies that would be available to plaintiffs under RCRA.  Therefore, RCRA's anti-duplication provision was triggered.  

Discussion

The Court's ruling is interesting in its conclusion that the remedies available under RCRA would be the same type of remedies currently required under the NPDES storm water permit.  SWP3 govern management of surface soils to protect surface waters.  RCRA can require cleanup of contaminated soils at depth and protection of ground water. 

The incorporation of the Voluntary Action Program cleanup plan is a unique fact to this case.  The court only discusses the incorporation of the cleanup plan in cursory fashion.  Was the court stating that if the casino operator failed to address soil contamination at depth or contaminated groundwater as called for under the cleanup plan it would be in violation of its NPDES storm water permit?  

It would appear that the answer must be "yes" in order to support the Court's ruling that the RCRA anti-duplication provision was triggered.

Hazardous Waste (RCRA) and Retailers

When most people think of businesses that handle hazardous waste, they think of manufacturing and other industrial companies.  The classic image is the storage of 55 gallon drums marked with placards indicating the contents are hazardous. 

In the last two years and unlikely sector has found themselves the focus hazardous waste enforcement and regulatory development- retails stores.  National awareness occurred in 2013 when Walmart announced a settlement with EPA to resolve violations of the Resource Conservation and Recovery Act (RCRA), the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the Clean Water Act (CWA) .  The violations were related to the handling of returned, unsold, and off-specification products. Walmart agreed to pay $7.628 million in civil penalties and pled guilty and agreed to pay $81.6 million in three federal criminal cases. Walmart entered into a Consent Agreement and Final Order (CAFO) with EPA, under which Walmart agreed to implement various measures to ensure future compliance. 

While the Walmart settlement was the largest, EPA and State EPA's have been very active in taking enforcement against retailers.  Actions include:

  • Walgreen Co., $16.6 Million (2012)
  • Costco Warehouse, $3.6 Million (2012);
  • CVS Pharmacy, $800,000 (CT, 2013) and $13.75 Million (CA, 2012
    settlement);
  • Target Corp., $22.5 Million (2011);
  • Home Depot, $425,000 (2006) and $10 Million (2007).

When Does RCRA Become an Issue for Retailers?

Products are not regulated as a hazardous waste.  However, if a product is returned by a customer or the store takes the product off the shelf due to damage or for some other reason, the product can become a hazardous waste if it meets certain characteristics.

At issue for retailers are paints, aerosol cans, bleach, polishes, and other chemical products that could be considered reactive, ignitable, corrosive or toxic.  When those products are returned by customers or if they are removed from the store, the retailer must evaluate whether the product has become a hazardous waste and should be managed as such.  

Waste can be generated at the retail store level through customer returns, household hazardous waste events, product recalls, damaged product containers or packaging, off specification product, unauthorized dumping, customer spills, and change out of inventory by the store. 

Large retailers also use reverse logistics systems to consolidate products that may be returned or removed from retail stores.   These products are sent to consolidation centers where decisions can be made regarding whether the product can still be sold, returned to the vendor, donated, recycled or discarded.  

Is a removed/returned product a "waste" when it leaves the retail store or when the decision is made it is to be discarded at the consolidation center?  That is one of many critical open issues facing retailers.

If a product is a hazardous waste, then it must be stored, managed, transported and disposed properly.  In addition, RCRA's "cradle to grave" regulatory scheme requires maintenance of required paperwork to verify any hazardous waste was managed properly.

EPA Collects Information Regarding Hazardous Waste Requirements for Retailers

On February 14, 2014, EPA released a Notice of Data Availability (NODA) in order to "collect information towards improving hazardous waste requirements for the retail sector."  In the NODA EPA sums up the challenge facing retailers- "Retailers are required to make numerous hazardous waste determinations at thousands of sites, generally by store employees with limited experience with the RCRA hazardous waste regulations."

Some national retailers (Walmart and Home Depot) already submitted comments to EPA.  Some of the issues/concerns raised by these retailers include:

  1.  Waste characterization at the retail store level by employees with little training or understanding of the regulations;
  2. Generation of waste at the store level that can force stores to fluctuate between Conditionally Exempts Small Quantity Generator to Large Quantity Generator status under RCRA (different regulations apply depending on the store's classification);
  3. The lack of applicability of the Household Hazardous Waste Exemption which allows customers to dispose of the same products in the trash as EPA requires retailers to manage as a hazardous waste;
  4. Argue for the application of Universal Waste classification which would make it much easier for retailers to manage products; and
  5. Application of RCRA regulations to central processing centers utilized by retailers;
  6. Regulation of empty prescription bottles;
  7. Ambiguous regulations of electronic waste.

Retailers identify legitimate issues with application of RCRA to their stores.  In reality, RCRA was designed to regulate generate hazardous waste from industrial operations, not consumer stores.  

How EPA decides to move forward to develop sensible regulations will be very interesting to watch. However, in the meantime, retail stores must be aware there is not "timeout" while EPA figures this out.  No better evidences exists than the multi-million dollar enforcement cases against large retailers.

(Photo: courtesy Flickr Catawba County)