Spencer Fane LLP Logo

A More Pragmatic Approach to RCRA Long-Term Cleanup Actions


The cleanup process under RCRA used to be synonymous with delay, bureaucracy, and an emphasis on comprehensive and complete studies at the expense of getting current and future risks to human health and the environment addressed.  Cleanup progress was severely hampered because of the sequential process on which RCRA project managers insisted without adequate acknowledgement of site-specific circumstances.  Additionally, the RCRA program was characterized by a command and control mentality which did not allow for productive interactions between the regulated community and the regulators.  Further, the confusing RCRA regulatory process made expeditious cleanups impossible.  A prior high-ranking EPA official once aptly described the then-existing RCRA process by calling it the “coo-coo world of RCRA.”.

Today, I would like to discuss with you a more pragmatic approach to RCRA long-term cleanups which focuses on results and risk-based cleanups and strives for expeditious redevelopment of RCRA sites.

I.    The RCRA long-term cleanup model focused on risk elimination by using an approach heavy on prescriptive and sequential process steps.

The traditional RCRA corrective action process required studies which often lasted for ten years or more and then facilities were told to do yet more sampling to learn more about the site conditions.  Further, facilities were asked to review a multitude of remedial alternatives regardless of whether any of these alternatives could be plausible remedies considering the site-specific circumstances.  Remedies had to achieve pristine site cleanup levels regardless of the use of the site in the future.  It was assumed that any site could and would be used for residential purposes and that any drop of groundwater could potentially be used as drinking water.  This kind of thinking is reflected in risk assessments, in particular, in the discussion of the risk assessor’s favorite:  the dirt eating child.  In discussing EPA’s traditional cleanup approach, Justice Bryer references a site which after a ten-year effort, was mostly cleaned up but where a small amount of cleanup remained at a cost of about $9.3 million.  As explained by Justice Bryer, “without the extra expenditure, the waste dump was clean enough for children playing on the site to eat small amounts of dirt daily for 70 days each year without significant harm.  Burning the soil would have made it clean enough for the children to eat small amounts daily for 245 days per year without significant harm.  But, there were no dirt-eating children playing in the area, for it was a swamp.  Nor were dirt-eating children likely to appear there for future building seemed unlikely.”

II.     The RCRA program has started to effectively control current risks by focusing on achieving environmental indicators.

During the early days of RCRA corrective action, the RCRA program focused almost exclusively on long-term action.  This approach did not produce cleanups.  It only produced studies.  In the mid-1990’s, RCRA began to address short-term risks by emphasizing the importance of site stabilization.  Congress, through the Government Performance Results Act of 1993, imposed on the RCRA program the requirement that by 2005 certain environmental indicators had to be achieved.  As a result, EPA is required to do the following:  (1) At 70% of the high-risk RCRA sites (about 1,800 sites across the country) the migration of contaminated groundwater has to be under control and (2) at 90% of these sites, human exposure has to be controlled.  For the first few years, the RCRA program struggled with achieving the necessary results to satisfy the 2005 goals.  But, with the issuance of the RCRA reforms in 1999 and 2001 with their focus on results, the RCRA program began achieving reductions in short-term risks at the required number of high priority sites.

This was, however, only possible because of a departure from the command and control approach, which used to be typical of the RCRA program and a change to flexible approaches, which emphasized results through an interactive process between regulators and the regulated industry.  The RCRA regulated community was given responsibility for results and the RCRA program managers eased up on process.  Based on recent data, the RCRA program is on target with respect to reducing current risks at high priority sites.  Can the RCRA long-term cleanup program which will address future risks duplicate this success?

III.    The new RCRA long-term cleanup model focuses on achieving risk-based cleanups by following a results-based and integrated approach.

The goal of the traditional long-term cleanup model was elimination of risk to human health and the environment.  The goal of the new RCRA model is risk management.  Risks to human health are a function of toxicity and exposure.  The traditional approach was to remove contamination or treat down concentrations of contaminants of concern to levels which would be protective for residential users regardless of whether it was likely, considering future land use that such users would be exposed to the contamination.  The new model considers the reasonably anticipated future land use and makes cleanup decisions based on such anticipated use and the type and duration of exposure of persons who may be at risk.  If the anticipated use is a commercial or industrial use, the new model determines a cleanup level which is reflective of this use.  This may mean leaving residual contamination in place with controls to assure that the use stays commercial or industrial.  Such controls may be in the form of institutional or engineering controls.

Institutional controls may be governmental controls, proprietary controls, enforcement controls, or informational controls.  Such controls can be effective and allow for protective and cost-effective cleanups.  Resources are limited and not every piece of land or drop of groundwater can be cleaned down to residential use.  There are advantages and disadvantages to the use of different controls, e.g., governmental, proprietary, enforcement, or informational controls.  Suffice it to say that controls are only effective if they are implemented correctly and monitored for the duration of the controls, and if agencies have a right to enforce them.  Also, financial assurance has to be provided so that the future implementation of such controls is assured.  These controls do not necessarily have to be perpetual.  A party should be able to request removal of the controls if the cleanup is such that the risk has been sufficiently mitigated (natural attenuation).

Some regulators are ill at ease with some of these controls and seek overly conservative layering by including numerous controls.  This should be avoided because that would affect the marketability of the property.  A proper balance must be struck between the protection of human health and the environment and the need to reuse and revitalize properties for the benefit of the communities involved.  Risk-based corrective action should achieve two goals:  (1) protection of human health and the environment; and (2) revitalization of the property subject to corrective action.  With this approach moth-balling of properties should be avoidable.

IV.    The new RCRA long-term cleanup model seeks to accomplish expeditious reuse of RCRA sites.

Risk-based cleanups are intended to accomplish cleanups of sites by limiting exposure to residual contamination based on the reasonably anticipated use and reuse of a site.  This approach will allow sites to be expeditiously returned to the marketplace since cleanups will be more effective and efficient without the delays attendant to achieving pristine cleanups of soils and groundwater.  Many RCRA sites are located on large areas which are not contaminated at all or are not equally contaminated.  In the past, EPA would not determine that a site cleanup was complete until the entire site was cleaned up.  This in addition to the emphasis on pristine cleanups often allowed property which was ready for reuse to sit idle.  EPA’s parceling concept is intended to address this situation.  Parceling means that EPA will divide a site up for investigation and cleanup and determine parcel-by-parcel when each area or medium has been cleaned up to EPA’s satisfaction thereby releasing such areas or media for redevelopment.

EPA Region 6 recently started issuing ready for reuse certificates which are designed to assure parties interested in acquiring properties, or loaning money for the acquisition or redevelopment of such properties, that the properties have been cleaned up to protective levels considering the anticipated use of the property.  EPA headquarters with its long-expected guidance addressing when RCRA cleanups are complete has also addressed this issue of redevelopment of RCRA sites by providing that a RCRA cleanup is done when the cleanup is complete with controls which can be use or activity controls.

V.     How should the new cleanup model be implemented?

A.    Use of parceling, ready for reuse determinations and expeditious determinations that cleanup is complete;

B.    Interactive communication between regulated community and regulators is absolutely necessary (examples);

C.    Establish clear cleanup goals and restrictions on the use of the property;

D.    Results and not process; and the owner/operator has to be given responsibility for the results.

E.    A whole site focus instead of a focus on individual solid waste management units;

F.    Less oversight by the regulators;

G.    More flexible use of technical impracticability waivers;

H.    Use of appropriate authorities (EPA and state authorities);

I.    Use of appropriate institutional controls;

J.    One-cleanup approach.


The success with the achievement of environmental indicators was the result of a partnership between EPA and the regulated community.  This model should carry over to the RCRA long-term cleanups which will address future risks.  To accomplish efficient and effective long-term cleanups, EPA and MDNR and the facilities must agree in the beginning of the cleanup process on a streamlined approach to investigations and review of alternatives as well as on cleanup goals.  The regulators must work together with the facility to accomplish these goals and must allow the regulated industry to assume the risk of accomplishing these goals with industry deciding on how to accomplish the goals.  This requires trust and risk taking.  It is my hope that both the regulated community and the regulators are up to this challenge.