July 11, 2016

Ask The Experts is a new section of THG’s quarterly newsletter, introduced in our March 2016 issue. In this section, we collect insights from subject matter experts on noteworthy developments and discussions in the environmental arena.

In advance of our upcoming Summit, The Future of RCRA – Making the Business Case, The Horinko Group will release a read-ahead white paper. For this Ask the Experts installment, and as part of the white paper development, we interviewed long-time RCRA practitioners on the successes, existing challenges, and road ahead for RCRA.

The Experts

Darsi Foss, Director, Remediation and Redevelopment Program, Wisconsin Department of Natural Resources, has over 30 years of policy and program experience associated with cleaning up and reusing contaminated properties, both at the federal and state levels. While at the Wisconsin DNR, she has played a significant role in the development of the state’s comprehensive clean up rules, program policy and the state’s brownfields initiative. Prior to this, while at the U.S. Environmental Protection Agency (EPA) in Washington, D.C., she worked for 4 years on policy issues pertaining to RCRA corrective action and Superfund, including the National Contingency Plan. She is a graduate of Iowa State University, and has a Bachelor’s Degree in Political Science and a Master’s Degree in Public Administration.

Peter Wright, Managing Counsel, The Dow Chemical Company, counsels the company’s senior management and manages the legal issues and outside counsel with respect to Dow’s largest and most significant environmental matter, the mid-Michigan dioxin matter. He also has the global lead responsibility for counseling Dow on its merger and acquisitions and significant real property transactions. In addition he provides counsel on hazardous waste matters, sustainability, environmental disclosures, shareholder resolutions, public reporting obligations and product stewardship matters. Mr. Wright earned his J. D., summa cum laude, from Indiana University in 1986 and his A. B, summa cum laude, from Wabash College in 1981.

Questions for the Experts

Q1. What stands out to you as the top one or two examples of where RCRA has been innovative, flexible, or efficient over the last 40 years? Where has it succeeded?

• Foss: Ms. Foss emphasized that the relationship and balance of authority between states and regional EPA offices has been essential to RCRA’s success. She has observed, based on her experience in Wisconsin, that the region’s trust in the state to take the lead on the majority of RCRA closures and corrective actions has enabled significant progress.This delegation of authority is established through the One Cleanup Program Memorandum of Agreement signed between the state of Wisconsin and EPA. Given that the state rules are substantially equivalent to EPA’s rules for RCRA corrective action (CA) and underground storage tank (UST) cleanups, EPA has made clear under this memorandum that there are limited times in which it will be involved in cleanups. This has given the regulated community comfort to move ahead with cleanups in Wisconsin.
• Wright: Mr. Wright responded that, looking at the program broadly, RCRA has been successful in ensuring that the relevant entities are responsible for and capable of the safe and appropriate treatment and disposal of waste. Though zero waste has not been achieved, the progress made under RCRA thus far has almost eliminated the creation of future Superfund sites.

Q2. What are one or two of the most complex existing challenges for RCRA? Where might these challenges be headed in the next decade?

• Foss: Encouraging RCRA cleanups while private industry operations are ongoing presents a major challenge. In many instances, the status quo for an operating facility becomes maintenance, or an extended interim action of sorts, until business has ended due to equipment and other barriers preventing cleanup during operations. Once operations conclude, the remaining buildings, materials, groundwater systems—that many times are outdated and expensive to operate—present many questions, especially as new land uses and the future of the property are considered.A second challenge Ms. Foss highlighted is that local government exemptions are unclear for the RCRA hazardous waste and UST programs. If municipalities are told that when they become the owner of a blighted property they will be subject to federal and state hazardous waste laws—despite a state exemption and federal Superfund exemption—it is difficult to get them to take title to these properties. In many cases, municipalities are the only hope for the revitalization of these properties and thus are in need of relief from certain requirements.
• Wright: Existing challenges reflect in many ways challenges that have persisted for the program for many years, Mr. Wright noted. One such example is the overly complicated definition of solid waste, which has likely resulted in the excessive use of resources on management of relatively non-hazardous materials as hazardous waste. Many of the land disposal treatment standards are similarly overly complicated and unnecessarily burdensome.

Q3. Envisioning the program in 2040, what existing challenges have been resolved? What successes have been improved upon? What new contaminants, waste streams, or corrective action challenges is the program dealing with?

• Foss: With respect to corrective action, Ms. Foss noted that the state of Wisconsin has dealt with and foresees continued challenges arising when businesses close down and other parties come in to salvage materials. Often, these secondary parties create bigger problems at the site than the original owner/operator, and the legal authority to deal with these cases is unclear. Looking down the road, as more and more large facilities are decommissioned, this challenge will be magnified and present a heightened need for clearer legal authority and enforcement tools in these instances.
• Wright: Mr. Wright suggested a question to consider for the improved efficiency of EPA cleanup programs as a whole: does the country really need three federal cleanup programs (i.e. the TSCA program for PCBs, RCRA, and CERCLA)? In reality, he pointed out, most cleanups—other than Superfund cleanups—are state-led. At the federal level, a RCRA intervention on a corrective action measure is nowadays a very rare occurrence, as state capacity to conduct cleanups and develop robust programs has increased. Further delegating authority to states, while streamlining the federal role, could serve to simplify and clarify what are now three separate bureaucratic entities.As the program looks into the future, Mr. Wright pointed out that RCRA, like all environmental statutes, suffers because it was designed to address a specific set of issues in the past. It is difficult to apply the statute to emerging issues, priorities, and new types of waste streams. As it is, the program, which was set up for managing chemical wastes as they existed in the 20th century, is not well-equipped to manage other types of wastes, especially articles. In fact, in some areas, such as electronics waste, RCRA can serve to discourage recycling because it treats an article like a collection of chemicals. In treating all wastes like a chemical waste the program risks cutting against recycling and energy efficiency objectives.

The views expressed herein have been made by these individuals in their personal capacities and are not necessarily representative of their companies or agencies.