One Cleanup Program – A Rational USEPA Initiative

Beginning in the 1970s, the federal government began to enact a series of environmental regulations that included provisions that addressed the cleanup of properties that had become contaminated due to historic or recent activities.  Examples of these cleanup programs included the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA: also known as Superfund); the Resource Conservation and Recovery Act (RCRA) Corrective Action Program; the Toxic Substances Control Act (TSCA); and the Leaking Underground Storage Tank (LUST) Corrective Action programs.  In addition, many states adopted counterpart statutes as part of obtaining primacy of these federal programs at the state level.  In addition, in the 1980s and 1990s, many states began to enact state brownfields and voluntary cleanup programs.  As these various federal and state programs matured and evolved over time, differences began to become apparent between the programs, in particular, their methodologies used to achieve remedial cleanup and hopefully, the ultimate redevelopment and reuse of formerly contaminated properties. 

One result of these differences that have developed between the programs is that situations can arise where adjacent properties with the same types of contamination can ultimately be cleaned up to significantly different levels based on which environmental program was used to perform the cleanup.  For example, groundwater often has elevated concentrations of benzene at former gasoline stations in the United States.  As reported by the federal Agency for Toxic Substances & Disease Registry (ATSDR), benzene is a known carcinogenic chemical compound that is associated with releases of gasoline to the environment.  Under a state leaking underground storage tank (LUST) corrective action program, groundwater at these LUST sites is often required to be cleaned up to federal and/or state drinking water standards.  For benzene, this clean up standard is 5 parts per billion.  However, under a state brownfields or voluntary cleanup program, the same benzene contamination in groundwater will likely not need to be remediated to anywhere near as low a concentration, and elevated concentrations of benzene often are permitted by the state regulatory agency to remain in groundwater at concentrations of up to several thousand parts per billion.  Numerous other such examples could be cited.

In a practical sense, what does this difference mean to an entity responsible for cleaning up this LUST site?  Under the state LUST corrective action program scenario, cleanup of groundwater typically requires implementing active remediation programs that can require several years to complete at costs of hundreds of thousands of dollars.  The same LUST site, if cleaned up under a state brownfields or voluntary cleanup program scenario, can often be successfully remediated and placed back into productive use in a six month period at a cost that often ranges from fifty to seventy-five thousand dollars.  As has been noted by the West Virginia Chamber of Commerce in its 2008 Policy Issue paper entitled One Cleanup Program – Uniform Standards for Environmental Remediation, “these inconsistent standards have lead to uncertainty and questioning by both the regulated community and the public.”

In an effort to rectify the different methodologies incorporated into the cleanup of contaminated properties under the current patchwork of federal and state programs, in 2003 the United States Environmental Protection Agency (USEPA) adopted the “One Cleanup Program” initiative.  The goals and objectives of this USEPA initiative are described in a policy paper that is available at www.epa.gov/oswer/onecleanupprogram/.  Overall, the USEPA stated that the One Cleanup Program initiative is designed to “improve the coordination, speed, and effectiveness of cleanups” and to achieve the following programmatic goals:

·        More consistent and effective cleanups.

·        Clear and more useful information about cleanups.

·        Better cross-program performance measures.

The initiative involves USEPA cleanup programs dealing with brownfields, federal facilities, leaking underground storage tanks, RCRA, and Superfund.  Consistent with this initiative, several states have pursued authorization from the USEPA of their own state-level One Cleanup Programs.  One state that has successfully obtained USEPA approval of its One Cleanup Program is Wisconsin, which received approval on December 6, 2006 of its program in the form of a Memorandum of Agreement (MOA) between USEPA Region V and the Wisconsin Department of Natural Resources.

At present, both the West Virginia Department of Environmental Protection (WVDEP) and the Pennsylvania Department of Environmental Protection (PADEP) are negotiating MOAs with USEPA Region III to authorize One Cleanup Programs for these states.  A consistent theme amongst all three state programs is the use of each state’s brownfields/voluntary cleanup program and their risk based cleanup standards to develop site-specific cleanup levels at properties being remediated.  Typically, site-specific standards reflect both the current and future land-use at a property (e.g., residential versus industrial) and are an integral component of developing realistic cleanups of contaminated properties.

In summary, the WVCOC in their Policy Issues paper clearly enumerates the benefits of the USEPA Once Cleanup Program initiative and the value, not only to West Virginia, but to the nation as a whole as follows:

“The citizens of our state will be better served by the elimination of inconsistent cleanup standards and by assurance that when a site is remediated it meets all statutory and regulatory requirements established by both state and federal agencies.  Business in West Virginia will benefit through expedited cleanups and by reducing the uncertainties where multiple environmental programs may apply to a site.  The state’s economy will benefit by having more properties that may have been cleaned up and are available for productive reuse.”

This article was authored by Greg Tieman, Acacia Environmental Group LLC. For more information on the author see here.