Hazardous Waste: Remediation Waste Requirements Can Increase the Time and Cost of Cleanups

Published by the Government Accountability Office on 1997-10-06.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                United States General Accounting Office

GAO             Report to Congressional Requesters

October 1997
                HAZARDOUS WASTE
                Remediation Waste
                Requirements Can
                Increase the Time and
                Cost of Cleanups

                   United States
GAO                General Accounting Office
                   Washington, D.C. 20548

                   Resources, Community, and
                   Economic Development Division


                   October 6, 1997

                   The Honorable Trent Lott
                   Majority Leader
                   United States Senate

                   The Honorable John H. Chafee
                   Chairman, Committee on Environment
                     and Public Works
                   United States Senate

                   The Honorable Robert C. Smith
                   Chairman, Subcommittee on Superfund,
                     Waste Control and Risk Assessment
                   Committee on Environment
                     and Public Works
                   United States Senate

                   In the United States today, tens of thousands of sites are contaminated
                   with hazardous waste from past and current industrial activities. The
                   Environmental Protection Agency (EPA) has estimated that the nation will
                   spend hundreds of billions of dollars to clean up these sites. In the late
                   1980s, EPA discovered that certain requirements imposed by the Resource
                   Conservation and Recovery Act may be increasing the costs and delaying
                   the progress of some hazardous waste cleanups. Both the Congress and
                   the administration have developed proposals to reduce these

                   To help the Congress evaluate these proposals, you asked us to provide
                   information on (1) the ways, according to EPA and selected state program
                   managers and industry representatives, that the Resource Conservation
                   and Recovery Act’s requirements, when applied to waste from cleanups
                   (often referred to as remediation waste), affect cleanups and (2) the
                   actions EPA has taken to address any impediments.

                   Three key requirements under the Resource Conservation and Recovery
Results in Brief   Act that govern hazardous waste management—land disposal restrictions,
                   minimum technological requirements, and requirements for permits—can
                   have negative effects when they are applied to waste from cleanups. The
                   requirements have been successful at preventing further contamination
                   from ongoing industrial operations, according to EPA cleanup managers.

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However, when the requirements are applied to remediation waste, which
includes sludge, debris, and contaminated soil or groundwater that is
excavated or moved during a cleanup, they can pose barriers to cleanups.
Because much remediation waste does not pose a significant threat to
human health and the environment, subjecting it to these three
requirements in particular can compel parties to perform cleanups that are
more stringent than EPA, the states, industry, or national environmental
groups believe are necessary to address the level of risk, increasing the
time and cost of cleanups. Consequently, EPA and state program managers
and industry representatives maintain, parties often try to avoid triggering
the requirements by containing waste in place or by abandoning cleanups

In the late 1980s, when establishing national Superfund1 guidance, EPA
recognized that these three requirements would make some cleanups
more difficult. Accordingly, it began developing policy and regulatory
alternatives to give parties more flexibility in dealing with the
requirements. However, these alternatives do not address all of the
impediments to cleanups, and some state cleanup managers were not
always aware of or did not fully understand the alternatives, while others
found them cumbersome to use and inefficient. Industry representatives
were also concerned that because of the ways that some states are using
these alternatives, EPA or a third party may challenge whether the cleanup
fully meets the Resource Conservation and Recovery Act’s requirements,
necessitating further cleanup action at some sites. To allay these concerns,
in 1996, EPA proposed a new rule to comprehensively reform remediation
waste requirements. The rule included a range of options to exempt some
or all remediation waste from federal hazardous waste management
requirements and to give the states more waste management authority. EPA
had estimated that these options could save up to $2.1 billion a year in
cleanup costs. However, EPA recently decided that because stakeholders
disagree over whether the agency can exempt remediation waste from the
requirements under current law, the agency would face a prolonged legal
battle over the new rule. Anticipating that, among other things, such a
battle would be time-consuming and resource-intensive, further delaying
cleanups, the agency has recently announced its intention to abandon its
attempts to revise the requirements. Although areas of disagreement may

 The Congress established the Superfund program under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended. The Superfund program is directed primarily at
addressing contamination resulting from past activities at inactive or abandoned sites or from spills
that require emergency action. The Corrective Action Program, under the Resource Conservation and
Recovery Act, primarily addresses contamination at operating industrial facilities.

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             still need to be addressed, EPA has concluded that the best way to achieve
             comprehensive reform is to change the underlying cleanup law.

             The Resource Conservation and Recovery Act (RCRA), passed in 1976 and
Background   substantially amended in 1984, establishes a national policy that hazardous
             waste be generated, treated, stored, and disposed of so as to minimize
             present and future threats to human health and the environment. RCRA,
             among other things, governs the management of hazardous waste from its
             generation to its final disposal so as to prevent future contamination.
             According to many stakeholders, the law has accomplished this purpose.

             RCRA  also contains provisions governing the identification and listing of
             hazardous waste. Under these provisions, EPA has established criteria for
             identifying waste that should be classified as hazardous. For example, EPA
             has listed in its regulations specific types of waste that are to be
             considered hazardous. Some types are listed by their source, that is, by the
             specific industrial processes that produce the waste, such as
             electroplating, which generates sludge from wastewater treatment. Other
             types are defined by certain characteristics that make the waste
             hazardous, such as whether it ignites easily.

             RCRA’s  regulations govern all hazardous waste, regardless of where or how
             it is generated. Waste from both current and past industrial operations is
             regulated. The requirements apply to any waste that EPA has identified as
             hazardous or, under its “contained-in” policy, to any environmental
             medium, such as soil or groundwater, that has been mingled with an
             identified hazardous waste until the medium no longer contains the waste.
             As a result, waste associated with cleanups (often referred to as
             remediation waste) must be managed under RCRA if it contains a hazardous
             component. Thus, waste generated at a wide variety of cleanups, including
             those under RCRA, Superfund, and state enforcement and voluntary
             programs, must generally be managed under RCRA’s stringent

             Both the Congress and EPA have considered proposals to amend the
             application of RCRA’s requirements to remediation waste. Since 1995,

              The states have created their own laws and programs, similar to the federal Superfund program,
             under which they may require parties that caused contamination to clean it up. Many states have also
             created programs that offer property owners or potential purchasers and developers incentives, such
             as relief from liability and a less burdensome cleanup process, if they voluntarily clean up a site. For
             more information on voluntary cleanup programs, see Superfund: State Voluntary Programs Provide
             Incentives to Encourage Cleanups (GAO/RCED-97-66, Apr. 9, 1997).

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                        several legislative proposals have been introduced that would exempt
                        certain types of remediation waste from these requirements and give the
                        states the authority to establish their own requirements for managing this
                        waste. Likewise, in 1995, the administration, as part of its effort to reinvent
                        government, tasked EPA with identifying for statutory reform any RCRA
                        provision whose implementation incurred costs that far outweighed the
                        environmental benefits achieved. Through meetings with stakeholders, EPA
                        identified RCRA remediation waste as a key area. In April 1996, EPA
                        proposed a comprehensive rule that would have provided alternative ways
                        of managing remediation waste. However, in September 1997, the agency
                        announced plans to withdraw its proposed rule because, among other
                        things, stakeholders disagreed on many remediation waste issues. Instead,
                        the agency plans to issue regulations covering four specific elements
                        affecting remediation waste.

                        To respond to this report’s objectives, we reviewed pertinent laws and
                        regulations and EPA’s policies, guidance documents, and proposed
                        regulations that discuss the application of RCRA’s requirements to the
                        management of remediation waste during cleanups. We interviewed EPA
                        headquarters managers responsible for both developing and implementing
                        RCRA policy. We also interviewed officials in nine states who are
                        responsible for administering the federal RCRA and Superfund programs
                        and their own state enforcement or voluntary cleanup programs. We
                        selected five of these states because they have the largest cleanup
                        workloads and four additional states to achieve geographic diversity.
                        Finally, we discussed the current requirements for managing remediation
                        waste with various industry and environmental associations. (See app. I
                        for a more detailed statement of our scope and methodology.)

                        While many of RCRA’s requirements can negatively affect cleanups,
RCRA’s Hazardous        according to EPA, cleanup managers most often cited three requirements as
Waste Management        creating disincentives for industry to clean up previously contaminated
Requirements Can        sites. They believe that these requirements increase the cost and time of
                        some cleanups and lead parties to select cleanup remedies that can be
Have Negative Effects   either too stringent or not stringent enough, given the health and
on Cleanups             environmental risks posed by the waste. Ultimately, these requirements
                        can discourage the cleanup of some sites, particularly of sites being
                        managed under state voluntary programs.

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Three Key RCRA               Most of the cleanup managers we contacted identified land disposal
Requirements Can             restrictions, minimum technological requirements, and requirements for
Unnecessarily Increase the   permits as the three most significant requirements under RCRA that
                             unnecessarily add cost and time to some cleanups. The land disposal
Cost and Time of Cleanups    restrictions and minimum technological requirements primarily add costs
and Negatively Affect the    because they set stringent standards for treating and disposing of
Choice of Remedy             hazardous waste, forcing parties to try to reduce contamination to
                             concentrations that they believe are lower than necessary to be protective
                             or to use cleanup technologies that were not designed to manage
                             remediation waste. The requirements for permits can add time—months or
                             even years—and costs to some cleanups. For example, one EPA estimate
                             suggests that exempting contaminated soil at a Superfund site from these
                             requirements could reduce the treatment costs by nearly 80 percent, from
                             an average of about $341 per ton to an average of about $73 per ton. This
                             exemption could reduce the overall treatment and disposal costs for such
                             a site from about $12.2 million to about $4.1 million.3 Ultimately, applying
                             the three requirements to remediation waste has led parties to base their
                             choice of some cleanup remedies not on the risks posed by the waste, but
                             on considerations of how to meet, minimize, or avoid the requirements,
                             according to EPA and state cleanup officials. As a result, they pointed out,
                             parties often choose less aggressive remedies, such as leaving remediation
                             waste in place rather than managing or treating it.

Land Disposal Restrictions   The 1984 RCRA amendments created land disposal restrictions that largely
                             prohibit parties from disposing of hazardous waste on land (e.g., in a
                             landfill4 unless they have treated the waste to minimize threats to human
                             health and the environment. The law also requires EPA to establish
                             treatment standards for hazardous waste that has been restricted from
                             land disposal. Once EPA has set a treatment standard, parties must meet it
                             for hazardous waste that they subsequently dispose of on land. Parties do
                             not have to meet the treatment standard for hazardous waste placed on
                             land before EPA established the standard unless they remove the waste and
                             dispose of it again—for example, during a cleanup action.

                             Complying with the land disposal restrictions and their associated
                             treatment standards can be costly and complex for several reasons. First,
                             the restrictions are costly to implement because they require that waste be

                              The EPA program managers pointed out that these savings would result from exempting only
                             contaminated soil from RCRA’s requirements. Additional savings could be realized if waste at the site,
                             such as sludge, were also exempted.
                              Land disposal includes any placement of hazardous waste into a landfill, surface impoundment, waste
                             pile, injection well, land treatment facility, salt dome formation, salt bed formation, or underground
                             mine or cave.

                             Page 5                                            GAO/RCED-98-4 Hazardous Remediation Waste

treated to specific, stringent standards. Such treatment is especially costly
for cleanups involving large volumes of waste. Treatment to meet these
stringent standards may be appropriate when relatively high-risk
materials, such as concentrated hazardous waste from old lagoons and
landfills, are found during cleanups. However, much remediation waste is
lightly contaminated. When relatively low-risk media are found, treatment
to meet the standards may be more stringent than necessary to protect
human health and the environment, according to EPA. EPA estimated that
exempting relatively low-risk contaminated media from the treatment
standards under the land disposal restrictions could reduce by about 80
percent the volume of contaminated media subject to these requirements,
from about 8.1 to about 1.8 million tons per year. The agency also
estimated that exempting relatively low-risk contaminated media could
decrease cleanup costs nationwide by 50 percent, or about $1.2 billion per
year, without sacrificing human health or environmental protection.5

Second, land disposal restrictions may drive some parties to use cleanup
technologies that are more stringent and therefore more costly than
necessary to be protective. Under RCRA, EPA is required to set treatment
standards for hazardous waste that minimize any threats to human health
and the environment. EPA has generally set its treatment standards at the
concentration levels that could be attained if the best demonstrated
available technology were used to treat the contamination. As a result, for
some hazardous waste, the only way to achieve the standard is by
incineration, even though other technologies, such as soil washing or
bioremediation, can result in protective cleanups at a much lower cost.6
For example, incineration, which can typically address all the hazardous
waste at a site, can cost as much as $1,200 per ton, according to EPA’s
estimates. If the waste at a site can be treated to meet RCRA’s standards
through a combination of other technologies, such as bioremediation, soil
washing, and immobilization, each of which is effective for certain
contaminants, the final cost is likely to be no more than about $300 per
ton, according to EPA—much less than the cost of incineration.

Finally, the land disposal restrictions and their associated treatment
standards are costly because contamination may have come from a variety

 Economic Assessment of the Proposed Hazardous Waste Identification Rule for Contaminated Media,
EPA (Apr. 1996). Unless otherwise stated, the dollar amounts mentioned in our report are expressed in
1994 dollars, as estimated by EPA in this 1996 document. EPA program managers pointed out that
additional savings could be realized by exempting sludge generated during cleanups. According to the
agency’s estimates, between 1.5 and 4 million tons of sludge are generated each year.
 Soil washing uses water or another washing solution and mechanical processes to scrub excavated
soils and remove the hazardous contaminants. Bioremediation uses microorganisms to break down
contaminants into less harmful or harmless substances.

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                        of sources or industrial processes that occurred at the site over time, and
                        parties may have to use several treatment technologies to comply with all
                        of the applicable standards. According to EPA, this issue is particularly
                        relevant at sites with a long history of contamination. The issue was also
                        raised by a cleanup manager from New Jersey, one of the five states with
                        the largest volume of remediation waste. He said that remediation waste
                        frequently contains mixtures of many types of waste and parties find it
                        difficult to design treatment methods that will satisfy all of the applicable
                        standards under the land disposal restrictions.

                        EPA  has acknowledged that its treatment standards under RCRA are not
                        generally appropriate for much of the contaminated soil typically found at
                        cleanups. However, even though EPA believes that in most cases, such soil
                        would be more appropriately treated using other technologies, such as
                        bioremediation, it does not have the research to demonstrate that these
                        technologies can attain the stringent treatment levels required by RCRA.
                        Some of the state cleanup managers we interviewed also discussed the
                        problems they had encountered in treating soil to achieve the standards.
                        New York officials, for example, told us that the owners of a site with soil
                        contaminated with metals wanted to use a cleanup technology at the site
                        that would have achieved 98 percent of the concentration level specified
                        by the pertinent RCRA treatment standards. However, because the
                        technology did not fully comply with the treatment standards, the owners
                        instead had to excavate the waste and send it to a hazardous waste facility
                        for treatment and disposal.

                        Alternatively, efforts to avoid triggering the treatment standards under the
                        land disposal restrictions can drive parties to use less aggressive and
                        perhaps less effective cleanup methods, such as leaving contaminated soil
                        in place and placing a waterproof cover over it rather than treating it.
                        While most cleanup programs allow such remedies on a case-by-case
                        basis, EPA believes they are not as protective over the long term as more
                        aggressive remedies, such as excavating the waste to treat it.

Minimum Technological   RCRA also establishes design and operating specifications, known as
Requirements            minimum technological requirements, for facilities, such as incinerators
                        and landfills, that either treat or dispose of hazardous waste. For example,
                        a hazardous waste landfill or surface impoundment7 must have (1) two or
                        more liners, (2) a leachate collection system,8 and (3) a monitoring system

                         A surface impoundment is an area, such as a pond or a pit, where liquid or semisolid hazardous waste
                        is treated, stored, or disposed of.
                         This system collects any liquid that has percolated through or drained from the hazardous waste.

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                           to ensure that contamination is not moving into the groundwater.
                           Complying with these requirements can be expensive. For example, one
                           facility we visited spent $750,000 in 1987 to meet the minimum
                           technological requirements for a 2.5-acre surface impoundment.

                           Because these technological requirements were designed for facilities that
                           manage waste from ongoing industrial operations (called process waste),
                           they may be more stringent than necessary for some remediation waste,
                           according to EPA and the majority of the state cleanup managers we
                           interviewed. For example, a temporary waste pile must meet the same
                           requirements as a pile where hazardous waste will be treated or stored for
                           many years. As a result, these requirements can be counterproductive for
                           some cleanups and unnecessarily increase their costs, according to EPA,
                           most state officials, and the industry representatives we interviewed.

                           Disposing of remediation waste, particularly lower-risk waste, in
                           accordance with the minimum technological requirements may add
                           unnecessary costs. For example, parties that want to dispose of waste that
                           has already been treated to meet land disposal requirements must still use
                           a landfill that meets the minimum technological requirements. EPA and
                           several state cleanup officials we interviewed were doubtful that
                           compliance with these requirements would be worth the cost, given the
                           low level of risk that treated remediation waste poses. According to EPA,
                           disposing of waste in a hazardous waste landfill can cost $200 per ton,
                           compared with $50 per ton to dispose of it in a municipal or industrial
                           landfill. Thus, for the average Superfund site with 34,000 tons of
                           contaminated soil, it would cost about $6.8 million to dispose of the
                           treated soil in a landfill that meets these technological requirements,
                           compared with about $1.7 million to dispose of it in a municipal or
                           industrial landfill.

Requirements for Permits   RCRA  generally prohibits the treatment, storage, or disposal of hazardous
                           waste without a permit. Because the process of obtaining a permit
                           involves a step-by-step approach with substantial requirements for
                           documentation and review, obtaining a permit can increase cleanup costs
                           and cause delays. In addition, under RCRA, facilities that require a permit in
                           order to clean up a portion of a site must also address cleanup
                           requirements for the entire site. Consequently, parties may try to avoid
                           triggering the permit requirement.

                           The administrative cost of obtaining a RCRA permit can range from $80,000
                           for an on-site treatment unit, such as a tank, to $400,000 for an on-site

                           Page 8                                GAO/RCED-98-4 Hazardous Remediation Waste

                          incinerator, and up to $1 million for a landfill, according to EPA’s estimates.
                          In addition to these costs, a party may incur other costs for tasks needed
                          to obtain a permit, such as assessing a site’s conditions in order to design a
                          groundwater monitoring system or conducting emissions testing and trial
                          burns for an incinerator. The time required to obtain a permit can also be
                          extensive, according to almost all of the state cleanup managers we
                          interviewed. For example, Texas managers said that getting a permit can
                          take 7 to 9 months for a simple treatment unit, such as a tank, and an
                          additional 5 to 6 years for a more complicated unit, such as a landfill.
                          Industry representatives we spoke with also estimated that getting a RCRA
                          permit typically takes 5 to 6 years. In a 1990 analysis of RCRA, EPA reported
                          that the permit process is cumbersome and causes significant delays.9

                          EPA and several state cleanup managers indicated that these costs, delays,
                          and administrative issues are particularly significant for facilities that are
                          not in the business of transporting, storing, or disposing of hazardous
                          waste. Such facilities would not need a RCRA permit were it not for their
                          cleanup activities. Even facilities that already have a RCRA permit to
                          operate encounter costs and delays when trying to get EPA or the state to
                          modify their permit to conduct cleanup activities. EPA’s most recent
                          estimate (1992) of the cost to modify an existing permit is about $80,000.
                          Washington State cleanup managers said that they have been working on a
                          permit modification for one site for 2 years. They find that under RCRA,
                          facilities have to request a permit modification for every technical change,
                          whereas under other programs, such as their state enforcement program,
                          the regulators and cleanup parties can meet and negotiate changes to
                          cleanup plans.

                          To avoid these problems, parties sometimes opt to send their remediation
                          waste off-site to a commercial facility that already has a RCRA permit to
                          treat, store, or dispose of hazardous waste; however, this option can be
                          prohibitively expensive, according to EPA and some state cleanup
                          managers. For example, Maine does not have any such commercial
                          facilities; therefore, parties that want to send their waste off-site have to
                          pay high transportation costs to ship it to another state that does.

RCRA’s Requirements Can   To avoid triggering RCRA’s requirements, property owners whose sites are
Discourage Cleanups       not under a federal or state cleanup order may choose to let the waste
Altogether                remain in place without treatment and purchase land elsewhere for their

                           EPA managers from the Office of Enforcement added that the agency can impose specific
                          requirements for some cleanups under an administrative order, which can help decrease the time and
                          costs involved in obtaining a permit.

                          Page 9                                           GAO/RCED-98-4 Hazardous Remediation Waste

                       plant expansion or other needs, according to EPA, as well as many state
                       cleanup officials and industry representatives. EPA managers told us that
                       leaving waste in place—especially “old waste,” such as sludge, that may
                       still have relatively high concentrations of hazardous substances—may
                       pose health or environmental risks. Furthermore, some state cleanup
                       managers noted, the contaminated land is not placed back into productive
                       use. Although cleaning up a site may offer economic benefits, such as
                       relief from liability for contamination and increased property values,
                       industry sometimes concludes that the costs of complying with RCRA can
                       outweigh these benefits, according to EPA’s analysis.

                       Cleanup program managers from several states echoed these concerns.
                       For example, cleanup managers from Missouri believe that less restrictive
                       requirements for remediation waste would lead to more voluntary
                       cleanups. Officials from Pennsylvania concurred, saying that they believe
                       RCRA’s requirements discourage parties from voluntarily stepping forward
                       to clean sites, such as former steel mill sites near Pittsburgh. Likewise,
                       cleanup managers from New York believe that economic factors are key to
                       determining whether a voluntary cleanup will occur. If a property’s sale
                       price or redevelopment value does not allow a party to recoup the
                       expenses of complying with RCRA, such a cleanup will not take place, they
                       contend. Illinois cleanup managers expressed similar concerns, saying that
                       potential buyers are likely to lose interest in purchasing a property once
                       they find out that it may be subject to RCRA’s requirements, especially the
                       treatment standards under the land disposal restrictions.

                       Since the late 1980s, EPA has incrementally modified RCRA’s application to
EPA Has Tried to       remediation waste through an assortment of policy statements and
Solve Remediation      regulatory alternatives, which have lessened but not solved the adverse
Waste Issues but Has   effects identified. The state managers we interviewed have had varied
                       experience in using these alternatives; some have found them burdensome
Had Limited Success    and overly complicated. Furthermore, industry representatives were
                       concerned that using the alternatives may result in cleanups that do not
                       meet RCRA’s requirements and will thus require further action. To allay
                       these concerns, in 1996, EPA proposed new rules to more comprehensively
                       reform RCRA’s requirements as they apply to remediation waste. However,
                       because technical and legal issues associated with the proposed rule
                       remain unresolved, the reform of RCRA’s requirements that impede
                       cleanups can best be addressed through legislation, according to EPA.

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Policies and Regulatory       The states have most frequently used six policy and regulatory alternatives
Alternatives Are Limited      that EPA has issued. Each alternative varies, however, in the degree to
                              which it helps to solve the problems posed by RCRA’s requirements.

Contained-In/Contained-Out    EPA originally designed the “contained-in” policy in 1986 to clarify that the
Policies                      scope of the waste managed under RCRA includes any medium—for
                              example, groundwater or soils—that contained a listed waste. In the
                              1990s, recognizing that at some concentration levels, contaminated media
                              no longer pose a hazard to health or the environment, EPA has allowed its
                              regions and states to exclude, or “contain out,” such media from RCRA’s
                              regulation, on a case-by-case basis. EPA has not established definitive
                              guidance on the specific concentration levels that justify a “contained-out”
                              decision, but it has stated that the decision should be based on the risk
                              posed to human health. Hence, according to EPA, this policy allows
                              regulatory agencies to make their own decisions about when
                              contaminated media no longer contain hazardous waste and therefore no
                              longer need to be managed under RCRA. However, EPA has also reported
                              that while the contained-out policy has increased flexibility and reduced
                              cleanup delays, it has not been consistently applied throughout the nation.
                              In addition, the policy applies only to contaminated media—soil and
                              groundwater—and not to all remediation waste, such as sludge.
                              Furthermore, in some cases, not all waste that has been contained out is
                              exempt from all of RCRA’s requirements. For example, contaminated soil
                              may still be subject to land disposal requirements if it was excavated and
                              tested in order to obtain the contained-out decision. Finally, managers
                              from one state told us they are reluctant to use this policy because EPA has
                              not set national standards for making a contained-out decision.

On-Site Permit Waivers        A 1986 amendment to the Superfund law exempts on-site cleanups from
                              the requirement to obtain a RCRA permit because these cleanups receive
                              close federal and state oversight. Some states have likewise adopted this
                              waiver for the on-site cleanups they oversee under their own enforcement
                              programs. Nevertheless, these cleanups must continue to meet RCRA’s
                              other requirements, including the land disposal restrictions and minimum
                              technological requirements. Permit waivers do not apply to RCRA or state
                              voluntary cleanups.

Site-Specific Land Disposal   In 1988, EPA issued a regulation to help address problems in meeting the
Treatment Variances           land disposal treatment standards for specific types of waste, such as
                              contaminated soils. The regulation allows EPA to issue a site-specific
                              variance from a given land disposal treatment standard under certain
                              circumstances, such as when a given waste cannot be treated to the

                              Page 11                               GAO/RCED-98-4 Hazardous Remediation Waste

                               applicable concentration level. However, according to the Superfund
                               program managers, the lengthy approval process, which includes
                               obtaining public comments, discourages requests for these variances.
                               Nonetheless, EPA has recently encouraged the regions to make greater use
                               of the variances.

Source of Contamination        In 1990, EPA established this policy for Superfund cleanups, and the states
Presumption                    have extended it to cleanups in other programs. When beginning a
                               cleanup, a party must make a good-faith effort to determine the source of
                               the waste identified at the site. The source often determines whether the
                               waste is a listed hazardous waste and, therefore, subject to RCRA’s
                               requirements. The Superfund guidance provides that when no records
                               exist to document the exact source of the waste—a common occurrence
                               for older, abandoned Superfund sites—the lead regulatory agency can
                               presume that the waste is not a listed hazardous waste and is therefore not
                               subject to RCRA’s requirements. However, the parties conducting the
                               cleanups are at risk if they have not taken adequate steps to identify the
                               source of the waste. If additional information becomes available to prove
                               that, because of its source, a waste is a listed hazardous waste, the
                               responsible party could be forced by EPA to perform additional cleanup
                               activities at the site in accordance with RCRA’s requirements. In this case,
                               the responsible party could face liability for improperly managing and
                               disposing of hazardous waste.

Area of Contamination Policy   Also originating within Superfund in 1990, this interpretation of the scope
                               of land disposal restrictions allows cleanup managers to consolidate some
                               remediation waste and treat it or leave it in place and cap it without
                               triggering the treatment standards under the land disposal restrictions.
                               However, the waste can be consolidated only if it lies within contiguous
                               areas of contamination. In addition, cleanup managers must comply with
                               all of RCRA’s requirements if the waste is moved from one area of
                               contamination to another or is removed, treated, and then placed back
                               into the area of contamination.

Corrective Action Management   In 1993, EPA issued the corrective action management unit (CAMU) rule that
Unit Rule                      significantly expands upon the area of contamination policy. According to
                               EPA officials, under this rule, parties conducting cleanups can dig up or
                               move waste or can permanently treat, store, or dispose of it within a
                               strictly defined area on-site if certain site-specific design and operating
                               requirements are met. However, the waste would not be subject to RCRA’s
                               land disposal restrictions or minimum technological requirements.
                               Moreover, parties must obtain EPA’s approval to use a CAMU—usually by

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                           obtaining a permit. The use of CAMUs has been somewhat limited because
                           in 1993, some stakeholders, including the Environmental Defense Fund
                           (EDF), filed a lawsuit questioning, among other things, whether EPA has the
                           authority to exempt hazardous waste disposed of in CAMUs from the land
                           disposal restrictions and the minimum technological requirements.10 This
                           legal question has not yet been resolved.

Although Alternatives      While most of the state managers we interviewed described these
Provide Some Relief From   alternatives, such as the CAMU rule, as useful during cleanups, some
RCRA’s Requirements,       managers were not aware of or did not understand all of the alternatives,
                           questioned whether they were legally defensible, or found them
Managers Found Them        burdensome and inefficient. EPA is considering how to address these
Burdensome and             problems.
Inefficient to Use
                           Cleanup managers from all but one of the states we selected told us that
                           they had used EPA’s alternatives for minimizing the impact of RCRA’s
                           requirements on remediation waste cleanups. Generally, the state and
                           other managers believed that the alternatives brought needed flexibility to
                           RCRA’s rigid requirements. For example, the Department of Defense’s
                           Deputy Under Secretary for Environmental Security attributed savings of
                           between $500 million and $1 billion in cleanup costs to the use of a CAMU at
                           the Department’s Rocky Mountain Arsenal site.11

                           However, those managers who had used the alternatives more extensively
                           also said that they spend considerable time and resources to determine
                           which alternatives to use and how to use them to work around the
                           problems presented by RCRA’s requirements. They found that the
                           alternatives were difficult to use and did not solve all of the problems at a
                           particular site.

                           In some instances, we found that cleanup managers were unfamiliar with
                           some of the alternatives or were concerned about using them. For
                           example, cleanup managers from one state told us that they were not
                           familiar with EPA’s policy that provides for waivers to the administrative
                           requirements for obtaining a permit. Managers from another state told us
                           that they were reluctant to make use of the contained-out policy because
                           EPA had not issued specific guidance on such determinations. Industry

                            The Environmental Defense Fund is one of the primary environmental organizations that has taken
                           an active position on the various proposals to reform RCRA’s requirements for remediation waste.
                             Federal agencies are generally responsible for cleanups of their own facilities.

                           Page 13                                             GAO/RCED-98-4 Hazardous Remediation Waste

                       managers told us they were hesitant to propose new CAMUs because of the
                       rule’s uncertain future.

                       Several industry and state cleanup managers acknowledged that they are
                       somewhat uncomfortable applying these alternatives for fear that EPA or a
                       third party may view the cleanup as not being in full compliance with
                       RCRA’s requirements and may initiate a legal challenge. For example,
                       managers in one state were somewhat uncomfortable that they take full
                       advantage of the flexibility provided by the source of contamination
                       presumption. In the managers’ view, the state may not be requiring an
                       extensive enough search to determine the source of the waste.

                       Several EPA headquarters managers said that they are not surprised that
                       state cleanup managers are unaware of or are inconsistently applying the
                       alternative policies because the policies are difficult to understand and
                       have been implemented piecemeal over the years. The EPA managers
                       acknowledged that they may need to take additional steps to help the
                       regions and states better use these options.

EPA Believes That      Recognizing the need for more comprehensive reform of RCRA’s
Comprehensive Reform   requirements for managing remediation waste, EPA in 1993 established a
Can Best Be Achieved   formal advisory committee of key stakeholders that developed the
                       framework for a new regulatory approach that EPA proposed in April 1996,
Through Legislation    the Hazardous Waste Identification Rule for Contaminated Media
                       (HWIR-Media). This proposal laid out several options that range from
                       exempting some remediation waste from RCRA’s current requirements to
                       exempting all such waste and giving the states the authority to define how
                       to manage it. EPA estimated that these options could save parties
                       conducting cleanups up to $2.1 billion in cleanup costs a year over the
                       next few years. However, stakeholders still have significant disagreements
                       over legal and technical issues. Therefore, EPA anticipates that any
                       approach to comprehensive regulatory reform would result in prolonged
                       legal battles that would delay cleanups. As result, the agency announced
                       plans to withdraw its proposed rule and focus on four more narrow
                       regulatory changes. EPA concluded that comprehensive reform can best be
                       achieved by revising RCRA itself.

                       EPA’s proposed rule laid out alternatives for waste management, ranging
                       from the “bright line” to the “unitary” approach. The first was limited to
                       making only contaminated media eligible for an exemption from RCRA’s
                       stringent requirements while maintaining the requirements for more highly

                       Page 14                             GAO/RCED-98-4 Hazardous Remediation Waste

contaminated hazardous waste. To determine which media could be
exempt, EPA would establish a concentration level, or “bright line,” for
various contaminants.12 If the contaminants in a medium fall below the
bright line, the medium would be eligible for an exemption from RCRA’s
current hazardous waste management requirements and EPA and
authorized states would have the authority to set site-specific waste
management requirements. EPA estimates that about 80 percent of all
contaminated media would be eligible for a RCRA exemption under this
approach, saving $1.2 billion a year in cleanup costs over the next few

In contrast, the unitary approach would exempt all remediation waste,
including debris and sludge, from RCRA’s hazardous waste management
requirements. Remediation waste would then be managed under a
site-specific remediation plan which would be subject to public review and
comment and approval by EPA or an authorized state. EPA estimated that
this approach could save approximately $2.1 billion a year in cleanup costs
over the next few years.

According to the Association of State and Territorial Waste Management
Officials, most states would prefer an approach that includes all
remediation waste—similar to the unitary approach—because it would
allow for efficient cleanups. Representatives from the departments of
Defense and Energy, industry, and several associations that we contacted
also said they would generally prefer the unitary approach for the same
reason. Industry groups, in their comments on EPA’s proposal, raised
concerns about the bright-line approach, particularly about the extent to
which they would have to test and sample waste to determine whether
each contaminant at a facility exceeds the line, potentially making some
cleanups cost-prohibitive. Some of EPA’s program managers also said that
if all remediation waste is not exempted from RCRA’s current requirements,
the incentives to avoid cleanups or select less aggressive remedies will

Other stakeholders, including representatives of EDF, would generally
prefer an approach that is conceptually similar to the bright-line approach.
For example, EDF, in its comments on EPA’s proposed rule, stated that it
strongly objects to any rule that does not provide national treatment
standards for highly contaminated media. EDF contends that, in most
cases, this material is as toxic as the process waste that is subject to RCRA’s

 For example, under the bright-line option, a concentration of a hazardous constituent that is
determined to increase the lifetime risk of cancer in more than 1 person in 1,000 would be classified as
hazardous and would be retained under RCRA’s current system for managing hazardous waste.

Page 15                                            GAO/RCED-98-4 Hazardous Remediation Waste

requirements and therefore should be managed rigorously. EDF also asserts
that EPA lacks any technical basis for setting different treatment standards
for sludge managed during cleanups. EDF believes that there is no evidence
that the sludge managed during a cleanup is physically or chemically
different from process waste. Therefore, EDF is opposed to relaxing RCRA’s
requirements for managing sludge. EDF was also critical of EPA’s
methodology for establishing bright lines, stating that the agency did not
adequately consider potential exposure to contaminated groundwater.

Stakeholders also disagree on the extent to which the states should be
authorized to manage remediation waste. Some stakeholders expressed
concern that the states, if authorized, could set different standards for
managing such waste, potentially creating problems with interstate
transfer and disposal. Cleanup managers in one state were particularly
concerned about whether they would have adequate resources to
determine the hazard posed by waste shipped to their state from states
with less stringent standards.

Disagreements also arose on the process that should be used to determine
whether a state has adequate laws, standards, and programs to manage
exempted waste. Some stakeholders argue that the states have already
demonstrated their ability to manage remediation waste through their
state cleanup programs and should be allowed to certify themselves as
authorized to do so. EDF, on the other hand, points out that since a large
portion of remediation waste would be exempt from RCRA’s hazardous
waste management requirements, the states could use their own systems
for managing nonhazardous waste, such as municipal and industrial
landfills, for remediation waste. EDF argues that some evaluations have
raised questions about the adequacy of these state systems. EPA
enforcement managers also added that community groups have expressed
similar concerns. If EPA is to implement a state authorization process, all
stakeholders seem to agree that the agency should not duplicate the
process EPA uses to authorize states to implement RCRA because it is
cumbersome and time-consuming. However, the stakeholders disagree on
how to streamline the process so that EPA retains meaningful oversight and
the public has adequate opportunities to participate in cleanup decisions
and activities.

EPA concluded that resolving all the technical and legal issues, including
how to distinguish what waste poses a significant threat to human health
and the environment and whether EPA can exempt this waste from RCRA’s
land disposal restrictions, would be time-consuming and

Page 16                              GAO/RCED-98-4 Hazardous Remediation Waste

                 resource-intensive. The agency expected the resulting drawn out litigation
                 and uncertainty would further discourage cleanups. Subsequently, the
                 agency announced on September 11, 1997, that it plans to withdraw the
                 HWIR-Media rule and, instead, pursue final rulemaking on four more narrow
                 portions of the proposal by June 1998.13 The agency acknowledges that
                 while these changes would help improve remediation waste management,
                 they would not provide the needed flexibility to exempt such waste from
                 RCRA’s rules. Therefore, EPA further concluded that comprehensive reform
                 of the remediation waste issue can be best addressed through the
                 legislative process. In anticipation that legislative proposals to address the
                 issue could be reintroduced, EPA, in conjunction with the Council on
                 Environmental Quality, hosted three meetings during the past year to
                 assess stakeholders’ views on outstanding remediation waste issues and
                 determine possible ways to address them.14

                 Three of RCRA’s hazardous waste management requirements, in
Conclusion       particular—land disposal restrictions, minimum technological
                 requirements, and requirements for permits—may be unduly stringent for
                 a significant portion of the remediation waste that poses a lesser risk to
                 human health and the environment. While stakeholders generally agree
                 that comprehensive reform of remediation waste management is
                 necessary, not everyone agrees on how to achieve this reform. EPA’s efforts
                 to provide alternative policies to mitigate the impact of these requirements
                 have resulted in confusion over the applicability of the policies to cleanups
                 and some, such as the CAMU rule, have been legally challenged. EPA has
                 concluded that because stakeholders disagree on the extent to which
                 waste should be exempt from RCRA’s requirements, as well as on EPA’s legal
                 authority under current law to exempt waste from the requirements, the
                 agency could not easily achieve comprehensive reform through the
                 regulatory process. It believes that such reform can best be achieved by
                 revising the underlying law governing remediation waste management.
                 EPA’s plan to withdraw proposed comprehensive regulatory reform
                 increases the need for a legislative solution.

                 We recommend that until comprehensive legislative reform is achieved to
Recommendation   address RCRA’s disincentives to cleanups, the Administrator, EPA, take steps

                   The elements that EPA plans to focus on are alternative land disposal treatment standards for
                 hazardous contaminated soil; streamlined processes for obtaining permits for cleanup sites; options
                 for remediation piles; and an exclusion from RCRA’s requirements for dredged materials.
                  The Council on Environmental Quality, in the Executive Office of the President, is responsible for
                 coordinating the development and implementation of environmental policies throughout the federal

                 Page 17                                           GAO/RCED-98-4 Hazardous Remediation Waste

                  to ensure that regulators overseeing cleanups have a more consistent
                  understanding of how to apply EPA’s existing policy and regulatory
                  alternatives to RCRA’s requirements for managing remediation waste. These
                  steps could include, for example, consolidating the policy and regulatory
                  alternatives into one guidance document, training all cleanup managers in
                  its appropriate use, and providing follow-up legal assistance for
                  site-specific implementation questions.

                  We provided copies of a draft of this report to EPA for its review and
Agency Comments   comment. We met with agency officials, including the Acting Director,
                  Permits and State Programs Division, Office of Solid Waste, the division
                  with responsibility for developing policies and procedures for managing
                  remediation waste under RCRA. The agency generally agreed with the
                  report’s findings. EPA suggested some technical revisions to the report,
                  which we incorporated. The agency also identified two issues it believed
                  needed further clarification. First, EPA agreed that we identified the three
                  specific requirements under RCRA that, when applied to remediation waste,
                  pose the most significant barriers to cleanups. However, the agency noted
                  that reforming these individual requirements would not remove all of the
                  barriers; RCRA’s entire hazardous waste management process, as it applies
                  to remediation waste, poses problems and needs comprehensive reform.
                  Second, the agency wanted to make sure that the report clearly indicated
                  that RCRA’s requirements affect all remediation waste, including sludge,
                  debris, and contaminated soil. EPA believes that reform must apply to all
                  remediation waste. We made several changes in the report where
                  appropriate to address these issues.

                  Finally, while agreeing that our recommendation will help parties manage
                  cleanups under RCRA’s current requirements, EPA believes that the benefits
                  may be limited because the requirements will continue to pose barriers to
                  cleanups until comprehensive reform is achieved. We reemphasized that
                  reform, while necessary, may take some time to implement. Meanwhile,
                  parties will have to accomplish cleanups under RCRA’s current
                  requirements and should be able to take advantage of the policy and
                  regulatory alternatives EPA has provided. However, given the concerns that
                  state and industry cleanup managers have expressed about using these
                  alternatives, we believe it is important that EPA take steps to ensure the
                  alternatives are implemented correctly.

                  Page 18                              GAO/RCED-98-4 Hazardous Remediation Waste

The scope and methodology used for our work is discussed in appendix I.
We performed our work from April through September 1997 in accordance
with generally accepted government auditing standards.

As arranged with your offices, unless you announce its contents earlier,
we plan no further distribution of this report until 10 days after the date of
this letter. At that time, we will send copies to the appropriate
congressional committees; the Administrator, EPA; and other interested
parties. We will also make copies available to others on request.

We hope this information will assist you as you consider legislation to
reform RCRA as it applies to remediation waste. If you have any further
questions, please call me at (202) 512-6111. Major contributors to this
report are listed in appendix II.

Lawrence J. Dyckman
Associate Director, Environmental
  Protection Issues

Page 19                               GAO/RCED-98-4 Hazardous Remediation Waste

Letter                                                                                          1

Appendix I                                                                                     22

Scope and
Appendix II                                                                                    24

Major Contributors to
This Report


                        CAMU         corrective action management unit
                        EDF          Environmental Defense Fund
                        EPA          Environmental Protection Agency
                        HWIR-Media   Hazardous Waste Identification Rule for Contaminated
                        RCRA         Resource Conservation and Recovery Act

                        Page 20                          GAO/RCED-98-4 Hazardous Remediation Waste
Page 21   GAO/RCED-98-4 Hazardous Remediation Waste
Appendix I

Scope and Methodology

                             To provide information on the requirements of the Resource Conservation
                             and Recovery Act (RCRA) that pose barriers to managing remediation waste
                             and the policies that the Environmental Protection Agency (EPA) has
                             developed to mitigate those barriers, we reviewed applicable laws and
                             numerous EPA documents, policies, and regulations. We also interviewed
                             managers in charge of hazardous waste cleanup programs in EPA, nine
                             states, and industry to obtain their views both on RCRA’s requirements and
                             on the actions EPA has taken to mitigate barriers presented by the
                             requirements. We attended all three meetings co-sponsored by EPA and the
                             Council on Environmental Quality to assess stakeholders’ concerns with
                             reforming RCRA’s requirements for remediation waste; these meetings were
                             held on June 5, August 6, and September 5, 1997. Additionally, we spoke
                             with cleanup program managers in several other federal agencies and
                             representatives of the primary environmental association involved in
                             remediation waste issues to learn about their experiences and
                             perspectives. Finally, we visited a hazardous waste facility at Cytec
                             Industries’ Willow Island plant near Parkersburg, West Virginia. The
                             officials and representatives we interviewed include the following:

EPA                      •   The Acting Director and environmental specialists from the Permits and
                             State Programs Division, Office of Solid Waste. This division is responsible
                             for developing environmental remediation policies and procedures under
                         •   Environmental specialists from the Office of Site Remediation
                             Enforcement who oversee EPA’s enforcement of RCRA.
                         •   Representatives from the Superfund program who specialize in complying
                             with RCRA’s applicable requirements.
                         •   Region III officials who manage hazardous waste activities at Cytec
                             Industries’ Willow Island plant near Parkersburg, West Virginia.

Other Federal Agencies   •   Program managers responsible for overseeing hazardous waste cleanups
                             at the departments of Defense, Energy, and the Interior.

States                   •   A policy director from the Association of State and Territorial Solid Waste
                             Management Officials.
                         •   Managers of Superfund, RCRA, state enforcement, and voluntary cleanup
                             programs in nine states. We selected five of these states—California,
                             Illinois, New Jersey, New York, and Pennsylvania—because, according to
                             EPA, they collectively generate, each year, about 35 percent of the nation’s

                             Page 22                              GAO/RCED-98-4 Hazardous Remediation Waste
                          Appendix I
                          Scope and Methodology

                          contaminated environmental media managed off-site. We selected the four
                          remaining states—Maine, Missouri, Texas, and Washington—for
                          geographic diversity.

Industry              •   Attorneys and consultants representing major corporate members of the
                          National Environmental Development Association and the RCRA Corrective
                          Action Project. These groups were organized to promote the reform of
                      •   Attorneys from the Environmental Technology Council. This group
                          represents private waste managers.
                      •   A spokesperson for the Solid Waste Association of North America. This
                          group represents municipal landfill operators.
                      •   Facility and corporate headquarters managers from Cytec Industries in
                          charge of hazardous waste management activities at the Willow Island
                          plant near Parkersburg, West Virginia.

Environmental Group   •   Attorneys from the Environmental Defense Fund. This organization is one
                          of the primary environmental organizations taking an active position on
                          various proposals to reform RCRA’s requirements for managing remediation

                          We performed our work from April through September 1997 in accordance
                          with generally accepted government auditing standards.

                          Page 23                            GAO/RCED-98-4 Hazardous Remediation Waste
Appendix II

Major Contributors to This Report

                        Eileen R. Larence, Assistant Director
Resources,              Karen L. Kemper, Evaluator-in-Charge
Community, and          Susan E. Swearingen, Senior Evaluator
Economic                Larry D. Turman, Senior Evaluator
                        Patricia Kao, Intern
Development             Elizabeth R. Eisenstadt, Communications Analyst
Division, Washington,   Fran Featherston, Senior Social Science Analyst
                        Richard P. Johnson, Senior Attorney
Office of General

(160390)                Page 24                               GAO/RCED-98-4 Hazardous Remediation Waste
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