U.S EPA Region 3 Discusses Waste Issues At Annual WV Chamber Fly-In

On July 21, 2009, members of the West Virginia Chamber of Commerce (Chamber) met with U.S. Environmental Protection Agency (U.S. EPA) Region 3 staff in Philadelphia as part of the Chamber’s annual fly-in. Present for U.S. EPA Region 3 were, among others, Abraham Ferdas, Director of U.S. EPA Region 3 Land and Chemicals Division, and Kathryn Hodgkiss, Acting Director of U.S. EPA Region 3 Hazardous Site Cleanup Division. Highlights of the waste-related discussion are as follows: 

·        Memorandum of Agreement: The Chamber asked about the status of a possible Memorandum of Agreement (MOA) concerning West Virginia’s Voluntary Remediation Program between West Virginia and U.S. EPA and whether any such MOA would likely cover cleanups under the Resource Conservation and Recovery Act (RCRA) and the Toxic Substances Control Act (TSCA). Director Ferdas reported that U.S. EPA was “close to finalizing” the MOA between West Virginia and U.S. EPA. After more than ten years of negotiations, he promised that the “end is near,” by which he said he meant “before the new fiscal year” or “by September” 2009. He further stated that the MOA would be limited in scope to eligible response sites under Superfund and would not address sites under RCRA or TSCA. With respect to RCRA, he stated that while U.S. EPA had reauthorized West Virginia to administer the RCRA Corrective Action Program, the issue of groundwater leaving sites remains. He explained that PCB contamination was enforceable only under TSCA and therefore would not be covered any MOA. In addition to RCRA and TSCA, he explained that because the leaking underground storage tank (LUST) program is a state program, the MOA would not apply to it. 

·        Regulation of Coal Combustion Residuals: The Chamber inquired about the status of U.S. EPA’s review of the coal combustion fly-ash issues that have arisen since the Kingston, Tennessee spill in December 2008. William C. Earley, Acting Regional Administrator, stated that U.S. EPA is looking at options for regulating coal combustion by products. He stated that the agency wants to protect the beneficial uses of coal combustion by products. He also stated that agency is looking at fly-ash impoundments based on the following three categories: (1) structural integrity (Superfund); (2) enforcement (Clean Water Act); and (3) consequences if the impoundment fails similar to a risk management plan (Federal Emergency Management Act).

·        Definition of Solid Waste: Noting that U.S. EPA recently granted a petition to reconsider the Definition of Solid Waste Rule that was finally published in the Federal Register in October 2008 after twenty 20 years of rulemaking and litigation, the Chamber asked U.S. EPA Region 3 to explain the revisions of the DSW Rule that are anticipated. Director Ferdas responded that U.S. EPA had held a public meeting on June 30, 2009, and said that most of the comments focused on off-site management.  He stated that the issue is when the generator losses control of the wastes. He indicated he believed that the on-site provisions would likely survive the additional review. 

·        CERCLA “Arranger” Liability:   The Chamber asked whether U.S. EPA anticipated revising any formal policy, such as its policy concerning “arranger” liability, for example, in response to the U.S. Supreme Court’s decision in Burlington Northern v. U.S. Director Hodgkiss responded that the regulated community could anticipate “business as usual”. She explained that Burlington Northern involved unusual facts and therefore had limited potential applicability. She stated that the Court affirmed the principle of joint-and-several liability and held that U.S. EPA would have to prove intent to dispose to establish “arranger” liability, explaining that this analysis would be on a case-by-case basis and very fact intensive. She stated that U.S. EPA would continue to assign parties to do cleanups and would continue to pursue cost recovery if the parties did not do so. 

·        RCRA Corrective Action in West Virginia: The Chamber asked if U.S. EPA was focusing on any specific issues in the West Virginia Department of Environmental Protection Agency’s administration of the RCRA Corrective Action Program. Director Ferdas responded that U.S. EPA would continue to provide support to West Virginia. He noted that the WV DEP is organized so that permitting and remediation are handled by two different sections within WV DEP. Further, he noted that West Virginia may regulate only by permits while U.S. EPA may issue orders.  

·        Reopening of the PCB MegaRule: The Chamber indicated it understood that a notice of proposed rulemaking would be published in January 2010, reopening the PCB MegaRule, and that the existing use authorizations would be re-evaluated and possibly eliminated. The Chamber asked what approach U.S. EPA anticipated taking to evaluate the existing authorizations and possible elimination of authorized uses. For example, the Chamber asked whether U.S. EPA anticipates implementing a series of management practices for control, requiring a tiered replacement of equipment using PCBs, or possibly establishing new criteria for “PCB-contaminated” and “PCB-containing” that would mimic the current rule. Director Ferdas responded that in 2008 U.S. EPA had made a decision to transfer the cleanup of PCBs to OSWER. He further explained that under the court decision in Paralyzed Veterans, U.S. EPA is required to reopen the PCB MegaRule, stating that the Paralyzed Veterans’ decision stands for the proposition that if the agency has implemented a program one way then it cannot change how it implements the program without changing the regulations. Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579, 586, (D.C. Cir.1997) (“Once an agency gives its regulation an interpretation, it can only change that interpretation as it would formally modify the regulation itself: through the process of notice and comment rulemaking”). Director Ferdas added that changing the regulations can take a long time. 

·        Land Stewardship Trust: The Chamber asked whether there were any new developments within U.S. EPA regarding the establishment of Land Stewardship Trusts. In particular, the Chamber asked whether U.S. EPA is monitoring and/or encouraging estate efforts to track, register or inspect risk-based cleanup sites and if U.S. anticipates developing its own Land Stewardship Trust Program. Directors Ferdas and Hodgkiss responded that U.S. EPA has awarded a $100,000 grant to West Virginia to study and evaluate establishing a Land Stewardship Trust Program in connection with the West Virginia Voluntary Remediation Program. They also noted that such programs are very state-specific and that Pennsylvania, for example, has the Guardian Trust. For additional information on the July 21, 2009 meeting between U.S. EPA and the Chamber, contact Gale Lea Rubrecht at galelea@jacksonkelly.com or 304-340-1200. 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.