RCRA REFORMS COULD SAVE CLEANUP COSTS, GAO SAYS

WASHINGTON-A few carefully targeted reforms to a 21-year-old environmental protection law could save U.S. businesses more than $1 billion annually in cleanup costs, according to a recent General Accounting Office report.

Accordingly, a bipartisan group of lawmakers, led by Senate Majority Leader Trent Lott, R-Miss., recently announced plans to introduce legislation early next year that would change the way so-called "remediation waste" is treated under the Resource Conservation and Recovery Act of 1976.

Remediation waste is generated during cleanup of polluted sites, including Superfund sites, but presents little risk itself. Nevertheless, RCRA requires that much of that remediation waste be treated like hazardous waste-and therefore subject to myriad rules and restrictions-which the GAO found often can be counterproductive to cleaning up a site.

"So what GAO has concluded and what we have concluded is the way that the RCRA statute is currently written requires the Environmental Protection Agency to require us to do stupid things. The solution is to go in and change the statute in a very targeted way," said Dorothy Kellogg, senior director-waste management program for the Chemical Manufacturers Assn. in Arlington, Va.

"It's really a constant issue for us. Basically, the problem boils down to the fact that there are two statutes that don't get along with one another: RCRA and Superfund," said Randall Hobbs, senior vp of ECS Claims Administrators Inc. in Exton, Pa. An affiliate, ECS Underwriting Inc., is an underwriting manager for several liability coverages, such as pollution legal liability policies, that respond to RCRA claims, Mr. Hobbs said.

"The changes they're talking about making here are certainly good ones," said David R. Haight, vp-environmental for the Risk & Insurance Management Society Inc.

Mr. Haight, who is director-risk management for CF Industries in Long Grove, Ill., noted that RIMS has not been involved in RCRA reform efforts.

He added that he would not like to see RCRA reform trump reform of Superfund, which has long been one of RIMS' chief legislative goals.

"I have a real concern about this, because while it does fix some problems with environmental remediation, it's not a fix for Superfund. My concern is that people would perceive it as being a fix for Superfund and therefore reauthorize Superfund as it is," said Mr. Haight.

Although several Superfund reform bills have been recently introduced, no bill has made it to the floor of either chamber of Congress this year. Attempts in the two most recent congressional sessions also have failed, leaving RCRA reform as the most likely avenue for business to get any legislative relief from existing pollution liability laws.

"The whole idea of coming up with any sort of solution clearly has to be from a legislative perspective," said Mr. Hobbs of ECS. Site-specific changes "just are not enough. I'm really a lot more in favor of what the GAO refers to as a unitary approach of exempting all remediation waste from RCRA. I think that's really the most comprehensive way of handling the problem."

"There's a substantial amount of money involved," said Tom Ovenden, executive director of the Multi-Industry RCRA Coalition-which supports reform-and vp of The Technical Group Inc., a Washington-based environmental consultant.

"As Sen. Chafee pointed out, the potential savings that would result from this type of legislation exceed what they authorized for Superfund," said Mr. Ovenden, referring to Senate Environment and Public Works Committee Chairman John Chafee, R-R.I., who is part of the reform push.

The GAO report noted that the EPA's own estimates of savings from remediation reform range from $1.2 billion to $2.1 billion annually, depending on how broad the reforms are.

The GAO report, "Hazardous Waste: Remediation Waste Requirements Can Increase the Time and Cost of Cleanups," says: "Three key requirements under the Resource Conservation and Recovery 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.

"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 the 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 entirely."

The issue has plagued business for years, noted several pro-reform observers.

"It's been here for the past several years in that many RCRA reforms have been achieved through the regulatory and legislative processes. But there still is a regulatory glitch with respect to remediation waste, where RCRA imposes remediation requirements on a one-size-fits-all basis," said Geoff Hurwitz, the Washington-based director of government relations for the Rohm & Haas Co. in Philadelphia.

"The statute makes no distinction between remediation and process waste. The law requires companies to deal with waste from remediation the same way they would deal with process waste under the mixture and derived-from rule. In shorthand, that means all process wastes are generally treated as hazardous wastes.

"Under this one-size-fits-all approach, even remediation wastes are treated as hazardous waste, which drives up the cost and doesn't yield any commensurate benefit," added Mr. Hurwitz.

"The EPA says when you dig up a shovelful of contaminated soil, you have just generated a waste, which means you cannot put it back down on the ground unless it meets land disposal restrictions and is in a minimum technology unit," said CMA's Ms. Kellogg.

The derived-from rule says that anything that is derived from a hazardous waste must be managed as a hazardous waste. The mixed-with rule says that anything that is mixed with a hazardous waste must be managed as a hazardous waste, she pointed out.

"The regulators at EPA say, 'We're caught in a box, and we can't let you out.' "

"This is not a major reform of RCRA. It's what we call a rifle shot. The idea is to get a very narrow change. This is directed solely at so-called remediation waste," said Harvey Alter, director-resource policy at the U.S. Chamber of Commerce in Washington.

"The proposal is to simplify it," he said.