More Flexible Cleanup in Florida: RCRA Corrective Action Reforms
The Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §6901et seq., the comprehensive program which regulates the management of hazardous waste, has undergone significant reform within the past few years. At the core of the reforms is “Results-Based Corrective Action,” which focuses on remediation outcomes rather than unnecessary administrative process. This includes “setting cleanup goals, providing procedural flexibility in how goals are met, inviting innovative technical approaches, focusing data collection, and letting owner/operators undertake cleanup action with reduced Agency oversight, where appropriate.”1 These reforms are designed to facilitate faster and more cost-effective cleanup while still protecting human health and the environment. These reforms are also consistent with the Florida Department of Environmental Protection’s (DEP) policy of “more protection, less process.”
This article will highlight the most important recent RCRA corrective action reforms with emphasis on DEP’s contaminated media guidance. This article also will explain how these reforms should translate into faster and less costly cleanup of contaminated sites in Florida.
Background
The RCRA corrective action program is located in §3004(u) and (v) of the RCRA Hazardous and Solid Waste Amendments (HSWA) of 1984. The U.S. Environmental Protection Agency granted the State of Florida final authority to implement the RCRA corrective action program on September 18, 2000.2 EPA’s RCRA corrective action program is designed to remove contamination and contamination sources at treatment, storage, and disposal facilities. At the time Florida received authorization to implement the program there were 124 facilities subject to RCRA corrective action in Florida. Other existing and new facilities are potentially subject to this program.
Corrective action provides challenges for owner/operators and program managers due to the unique circumstances of each site. Different wastes, multiple generators, and fragmented sites with unique hydrogeological conditions all make for challenging cleanup scenarios. The multitude of unfinished cleanups have forced regulators to build more efficiencies into the corrective action program.
Corrective Action Reforms
Remedial Action Plans and HWIR-Media
For years hazardous waste generated at cleanup sites was subject to the full suite of regulations under RCRA Subtitle C. The base RCRA program is prevention-oriented and written broadly to apply minimum standards for the management of hazardous waste nationwide. Prevention-oriented programs have different objectives and incentives than response-oriented programs such as Superfund and RCRA Corrective Action and EPA recognized that Subtitle C requirements were inappropriate for cleanup projects.
On November 30, 1998, EPA published its Hazardous Remediation Waste Management Requirements (HWIR-Media) rule that creates five new requirements for RCRA hazardous remediation wastes treated, stored, or disposed during cleanup actions.3 First, the HWIR-Media rule streamlines the RCRA permitting process for cleanup wastes treated, stored, or disposed during cleanup through the creation of remedial action plans (RAPs), which are special RCRA permits that authorize the treatment, storage, or disposal of hazardous remediation waste. Second, the HWIR-Media rule releases facilities permitted under this new process from facility-wide corrective action requirements. Third, the HWIR-Media rule creates a new type of unit called a “staging pile” that allows for flexibility in storing remediation wastes during cleanup. Fourth, dredged materials managed under the Marine Protection, Research, and Sanctuaries Act or the Clean Water Act are excluded from RCRA Subtitle C requirements. Finally, the HWIR-Media rule provides for an expedited authorization process for states updating their RCRA programs to incorporate federal RCRA revisions.
RAPs are arguably the most innovative corrective action reform in recent years. Prior to the creation of the RAP, facility owners and operators who wished to treat, store, or dispose of remediation waste on-site had to obtain an RCRA permit and comply with all the requirements that come with an RCRA permit including facility-wide corrective action. RAPs are a special form of permit specifically tailored to cleanup scenarios that provide a more streamlined permitting and approval process while maintaining the minimum statutory public participation requirements. RAPs allow facility owners and operators to manage remediation waste where it is excavated or treated without having to perform corrective action at the entire facility. The RAP is designed for the management of hazardous remediation wastes as opposed to as-generated wastes and does not affect when a traditional RCRA permit is required.
CAMU Amendments
Corrective action management units (CAMUs) were authorized by rule in 1993 to facilitate cleanup at remediation sites by exempting the on-site management of cleanup wastes from land disposal restrictions and minimum technology requirements.4 On December 21, 2001, EPA published a final rule that amends the 1983 CAMU rule in six ways which, according to EPA, provide more specific regulatory standards while continuing to “remove the disincentives to cleanup that result from applying RCRA regulations for as-generated wastes to cleanup wastes.”
The final rule establishes a specific definition for wastes eligible for placement in CAMUs. The definition of “CAMU-eligible wastes” includes hazardous and nonhazardous wastes generated on-site and managed for implementing cleanup, distinguishes between as-generated and cleanup wastes, includes intact and substantially intact tanks, allows for nonhazardous, as-generated wasted to be placed in CAMUs if such placement would facilitate treatment or the performance of the CAMU, and allows the regional administrator to disallow the placement of certain types of waste in CAMUs.
The final rule also establishes more detailed minimum design and operation standards for CAMUs in which wastes will remain in place after closure. These design and operation standards include minimum liner requirements for new, expanded, or replacement liners, minimum design criteria for CAMU caps, and corrective action for any releases from CAMUs to groundwater.
The final rule further establishes specific treatment standards for wastes placed in CAMUs. The treatment standards for CAMU-eligible waste apply only to “principal hazardous constituents” (constituents that the regional administrator determines pose a risk to human health and the environment at levels substantially higher than the cleanup levels and goals at the site). Under the final rule, principal hazardous constituents must be treated to national minimum treatment standards which can be adjusted by the regional administrator through “adjustment factors” to reflect site-specific conditions.
In addition, the final rule establishes more specific information requirements for CAMU applications and provides for notice and hearing opportunities for members of the public living within the vicinity of the CAMU. Also, the final rule establishes new requirements for CAMUs used only to treat or store cleanup wastes. CAMUs used only to treat or store cleanup wastes are subject to the design, operating, and closure standards of staging piles unless the CAMU exceeds the staging pile time limit of two and one-half years. Furthermore, the final rule “grandfathers” certain CAMUs allowing them to operate under the 1993 CAMU rule. The grandfathering provision applies to CAMUs that received approval prior to the effective date of the final rule. The grandfather provision also applies to CAMUs for which substantially complete applications were submitted to EPA on or before 90 days after the publication of the August 22, 2000 proposed rule.
In addition to the amendments listed above, the final rule amends the regulations for “staging piles” to allow for physical operations such as mixing or blending which are intended to prepare wastes for subsequent management or treatment. The final rule also adds a new provision allowing off-site placement of hazardous CAMU-eligible waste in hazardous waste landfills, if they are treated to meet CAMU treatment standards. Finally, the final rule grants states that were authorized to administer the 1993 CAMU rule interim authorization and expedites the authorization process for states not yet authorized for the 1993 CAMU rule.
Post-closure Alternatives
After years of experience implementing RCRA corrective action, EPA discovered regulatory inefficiencies with certain RCRA closure scenarios. Sites where RCRA regulated units and solid waste management units (SWMUs) or areas of concern had both contributed to a release of hazardous constituents to the soil and groundwater were subject to two different sets of RCRA requirements—closure requirements at the regulated unit and corrective action requirements at SWMUs (or areas of concern)—even though a single release had occurred. EPA was concerned that this “dual regulatory structure [would] unnecessarily impede cleanups.”5
On October 22, 1998, EPA published a final rule that provides flexibility to combine the two sets of requirements by allowing nonpermitted land disposal units requiring post-closure care to use alternative authorities in lieu of post-closure permits and allowing EPA and authorized states to replace the regulatory requirements of 40 CFR Parts 264 and 265, Subpart F (groundwater monitoring), Subpart G (closure and post-closure), and Subpart H (financial responsibility) at permitted facilities with alternative corrective action authorities where a) the regulated unit is situated among SWMUs (or areas of concern), b) a release has occurred, and c) both the regulated unit and one or more SWMUs (or areas of concern) are suspected of contributing to the release. The alternative standards for permitted facilities are to be issued in the permit or an enforceable document referenced the permit. According to the final rule preamble, “EPA and authorized states may develop the cleanup requirements for the regulated unit and SWMUs under non-permit authorities, such as CERCLA or a state superfund statute, but they must incorporate them into the permit, or incorporate them into an enforceable document, which is referenced in the permit.”6
Elimination of Closure Permits in Florida
In Florida, a person who conducts hazardous and solid waste cleanup must first obtain a permit before closing down a facility. House Bill 1425, passed in 2000, amended the laws of the state to provide for a clean closure plan approval or a post closure permit to be obtained instead of a closure permit. This bill brings Florida law into conformance with the federal Results-Based Corrective Action program by requiring closure plans and post closure permits rather than closure permits. F.S. §403.087 is amended to reflect the fee that may be charged for a post closure permit or clean closure plan approval.7 F. S. §403.722, which requires individuals to first obtain a permit prior to constructing, modifying, or closing a hazardous waste facility has also been changed so that it now applies to postclosure permits or clean closure plan approval.8
LDR Phase IV Rule
Hazardous wastes and media must meet certain treatment requirements before being land disposed. These land disposal restrictions (LDRs) have traditionally required treatment of hazardous wastes to the best demonstrated available technology (BDAT). Originally, LDRs were developed for pure, industrial hazardous waste.9 Application of LDRs to contaminated soils left remediation managers with two choices: cap and treat hazardous contaminated soil in place in order to avoid having to comply with LDRs, or excavate the soil and treat it to the full extent of BDAT. This situation created an incentive on the part of remediation officials to select remedies that minimize the application of LDRs.
To prevent this situation, EPA issued the Phase IV rule which established a new treatability group—contaminated soils—as well as LDRs designed specifically for that treatability group. The soil treatment standards developed by EPA can be achieved using a variety of treatment technologies rather than the “best” technology required by the BDAT. The soil treatment standards require that the concentrations of hazardous constituents in contaminated soils be reduced by 90 percent or be reduced to a level equal to 10 times the universal treatment standards (UTS), whichever is greater. This is commonly referred to as “90% capped at 10 times UTS.”
The land disposal restriction treatment requirements promulgated in the LDR Phase IV rule are primarily technology-based. The LDR Phase IV rule provides a variance from these technology-based standards when EPA or an authorized state make a site-specific determination that “compliance with the treatment standards would result in treatment beyond the point at which short- and long-term threats to human health and the environment are minimized. This allows a site-specific, risk-based determination to supersede the technology-based LDR treatment standards under certain circumstances.”10
DEP Contaminated Media Policy
The cleanup of contaminated sites throughout the state is a costly endeavor and a significant portion of that cost is attributable to the proper treatment, storage, and disposal of polluted soil and groundwater—contaminated media. The age-old question of how clean is clean has real dollars attached to it and property owners have incentive to demonstrate to state regulators that their soil and groundwater containing a hazardous waste do not present a threat to human health and the environment and thus cleanup activities should terminate. The recently published DEP contaminated media policy provides two mechanisms whereby a property owner can demonstrate to DEP that its hazardous waste-contaminated media does not pose such a threat.
Background
In order to understand how hazardous waste contaminated media are captured in the regulatory net of state and federal agencies, a quick primer on RCRA hazardous waste rules is needed. Under RCRA there are three types of hazardous wastes: characteristic hazardous wastes, listed hazardous wastes, and mixtures of solid waste and hazardous waste (also known as the “mixture rule”).11 A characteristic hazardous waste remains hazardous until it no longer contains a hazardous characteristic. A listed hazardous waste remains hazardous unless a generator is successful in having it “delisted” by means of a formal petition process. Hazardous waste mixtures of characteristic hazardous waste remain hazardous as long as the mixture exhibits a characteristic. Hazardous waste mixtures of listed hazardous waste remain hazardous as regardless of the amount of hazardous constituent.
A hazardous waste is, by definition, a solid waste. Soil, groundwater, and other environmental media in situ in the environment are not hazardous waste when mixed with hazardous constituents because environmental media do not fall within the definition of solid waste. Nevertheless, EPA has developed the “contained-in policy” whereby mixtures of environmental media and hazardous waste are treated as a hazardous waste as long as the media contain hazardous waste.
Contained-in Determinations
According to EPA, environmental media contaminated with hazardous waste no longer “contain” hazardous waste: when they no longer exhibit a characteristic of hazardous waste, and when concentrations of hazardous constituents from listed hazardous wastes are below health-based levels.12
In the case of media that are contaminated by listed hazardous waste, current EPA guidance recommends that contained-in determinations be made based on direct exposure using a reasonable maximum exposure scenario and that conservative, health-based standards be used to develop the site-specific health-based levels of hazardous constituents below which contaminated environmental media would be considered to no longer contain hazardous waste.13
Contained-in Determinations vs. LDR Requirements
There is some tension between contained-in determinations and LDR treatment requirements. In Chemical Waste Management Inc. v. EPA, 976 F.2d 2, 13, 14 and 24 (D.C. Cir. 1992), the U.S. Court of Appeals for the D.C. Circuit held that land disposal prohibitions attach at the point that a hazardous waste is generated and continue to apply until threats posed by land disposal of the waste are minimized (until LDR treatment standards are met). In Hazardous Waste Treatment Council v. EPA, 886 F.2d 355, 362–64 (D.C. Cir. 1989), the U.S. Court of Appeals for the D.C. Circuit held that technology based LDR treatment standards are permissible means of implementing RCRA §3004(m) provided they do not require treatment beyond the point at which threats to human health and the environment are minimized.
Remediation officials who are successful in obtaining a contained out determination for their contaminated media may still be subject to the regulatory burden of LDRs even though the media no longer contain hazardous waste. Whether a person must meet this dual regulatory burden depends on the type of hazardous waste that has combined with the media and the point at which the LDRs attach. The following principles, taken from the preamble to the LDR Phase IV rule, should be considered any time a decision is made as to the proper management of contaminated environmental media: 1) land disposal restrictions only attach to prohibited hazardous waste (or hazardous contaminated soil) when it is a) generated and b) placed in a land disposal unit; 2) once a decision has been made to generate and re-land-dispose contaminated soils, LDRs generally only apply to contaminated soils that contain hazardous waste.14 EPA considers soil to contain hazardous waste: a) when it exhibits a characteristic of hazardous waste and b) when it is contaminated by certain concentrations of constituents from listed hazardous waste; and 3) once LDRs attach (generally, at the point of generation, see First Principal) to any given hazardous waste or volume of hazardous contaminated soil, the LDR treatment standards continue to apply until they are met.
Contained-out Determinations and LDR/UTS Variances under Florida Guidance
On August 21, 2002, DEP issued its revised guidance for managing contaminated media.15 The revised guidance incorporates Phase IV land disposal requirements, risk-based concentration screening criteria, and a format/checklist for a contained out determination and LDR/UTS variance request. Contaminated environmental media can become subject to regulation under RCRA if they contain hazardous waste. Contaminated media contain hazardous waste when they exhibit a characteristic of hazardous waste or when they are contaminated with listed hazardous waste at concentrations of hazardous constituents that are above residential/uncontrolled exposure health-based cleanup target levels. The guidance applies to sites that generated contaminated media through site investigation, corrective action, or other remediation activities where cleanup is overseen by DEP. The guidance supersedes DEP’s July 27, 1995, memorandum on the management of contaminated media under RCRA. However, it supplements the September 7, 1999, EPA Region 4 updated guidance document on contaminated media, and does not change or supercede specific RCRA, CERCLA, or other regulatory requirements.
DEP’s Management of Contaminated Media Under RCRA includes several case studies which help demonstrate the effect of contained-out determinations and/or a state LDR/UTS variances on soils contaminated with hazardous wastes under various management scenarios. These cases assume that hazardous waste soils have been generated and the residential cleanup target level (residential CTL), the industrial cleanup target level (industrial CTL), and/or the land disposal restriction universal treatment standard (LDR/UTS) concentration may be exceeded either before or after treatment.
Conclusion
The RCRA corrective action reforms outlined above are among the most important changes in environmental law during the past several years. If these results-based reforms are implemented properly by the facilities and regulators, they can provide a template for future improvements in environmental regulation. This in turn will result in expeditious and cost-effective cleanup of contaminated sites in Florida, which benefits the environment and public health and safety.
1 RCRA Cleanup Reforms , EPA530-F-99-018 (July 1999).
2 65 Fed. Reg. 56256 (Sept. 18, 2000).
3 63 Fed. Reg. 65874 (Nov. 30, 1998).
4 67 Fed. Reg. 2962, 2964 (Dec. 21, 2000).
5 63 Fed. Reg. 56709, 56713 (Oct. 22, 1998).
6 Id . at 56713, 56715.
7 Fla. Stat. §403.087(6)(a) (2002).
8 Fla. Stat. §403.722 (2002).
9 63 Fed. Reg. 28556, 28603 (May 26, 1998).
10 Id . at 28604. EPA Memorandum, Management of Remediation Waste Under RCRA , EPA530-F-98-026 (Oct. 14, 1998)
11 40 CFR 261.3.
12 EPA Memorandum, Management of Remediation Waste Under RCRA , EPA530-F-98-026 (Oct. 14, 1998).
13 Id . See EPA Region 4 Memorandum, Region 4 Management of Contaminated Media (Sept. 7, 1999).
14 63 Fed. Reg. 28556, 28617-18 (May 26, 1998).
15 Management of Environmental Media that Contains Hazardous Waste (Aug. 21, 2002).
Ralph A. DeMeo is a shareholder at Hopping Green & Sams, P.A. He received his B.A. and M.A. from Stetson University and his J.D. from Florida State University. He is past chair of The Florida Bar Environmental and Land Use Section and of the Journal and News Editorial Board.
Michael P. Petrovich is a shareholder at Hopping Green & Sams, P.A. He received his B.A. from Indiana University and his J.D. from Florida State University.
Matthew L. Hicks is an associate at Hopping Green & Sams, P.A. he received his B.S. and J.D. from the University of Florida.
The authors ackowledge the efforts of the following persons in the preparation of this article: Satish Kastury, Merlin Russell, Doug Outlaw, Shelton Graves, and Agusta Posner of DEP and David Thomas and Joel Balmat of Universal Studios.
This column is submitted on behalf of the Environmental and Land Use Law Section, Maribel Nery Nicholson-Choice, chair, and Robert Manning, editor.
