Along with a delegation of approximately seventeen members of the West Virginia Chamber of Commerce, Gale Lea Rubrecht met with U.S. EPA Region III in Philadelphia on July 17, 2012, to discuss various environmental issues, including brownfields and remediation issues, of concern to Chamber members. Brownfields and remediation topics discussed related to: the RCRA Memorandum of Agreement between U.S. EPA and West Virginia for the West Virginia Voluntary Remediation Program, brownfields assessment, revolving loan fund and cleanup grants; use of prospective purchaser agreements as a means to resolve continuing obligations of prospective purchasers seeking the benefits of the bona fide prospective purchaser (BFPP) defense under the Comprehensive Environmental, Compensation and Liability Act of 1980, as amended; U.S. EPA’s Google Earth project for identifying land-use restrictions; and dioxin cleanup standards. Highlights of the brownfields and remediation discussion are as follows:
- RCRA Memorandum of Agreement: This year, the Chamber did not ask Region III about the status of the Memorandum of Agreement (MOA) between U.S. EPA and West Virginia regarding whether the West Virginia Voluntary Remediation Program would satisfy RCRA (Resource Conservation and Recovery Act) corrective action; however, Abe Ferdas, Director of Region III’s Land and Chemical Division, volunteered that U.S. EPA and the West Virginia Department of Environmental Protection had “finished work” on the MOA. He stated that except for offsite groundwater contamination, the draft MOA provides that the West Virginia Voluntary Remediation Program satisfies RCRA corrective action. He stated that for offsite groundwater contamination, U.S. EPA would impose additional requirements. He stated that there are about forty RCRA corrective action sites in West Virginia that would benefit from the signed MOA.
- Brownfields Assessment, Revolving Loan Fund and Cleanup (ARC) Grants: The Chamber asked about the two strategic listening sessions held by U.S. EPA’s Office of Brownfields and Land Revitalization (OBLR) in May 2012, seeking input on the Assessment, Revolving Loan Fund and Cleanup (ARC) grant competition process. The Chamber asked about the gist of the public feedback and U.S. EPA’s plans for incorporating that feedback into the fiscal year 2013 ARC process. Ron Borsellino, Director of Region III’s Hazardous Site Cleanup Division, responded that the public feedback could be grouped into three categories. First, commenters stated that U.S. EPA’s ACR grant competition process did not allow enough time to write an application. Second, commenters stated that there was too much time between submission of applications and awards. Third, commenters complained that training was inconsistent across U.S. EPA Regions. Director Borsellino stated that U.S. EPA planned to post the guidelines in August which would extend the time period for writing grant applications by two weeks and which would shorten the time period between submissions and awards by two weeks. He also stated that U.S. EPA planned to offer national training. He stated that these changes in the ARC grant competition process may be incorporated by the fiscal year 2013 ARC process but most likely would not happen until 2014.
- Prospective Purchaser Agreements (PPAs): The Chamber asked Region III about recent use of PPAs. The Chamber noted that after the 2002 Brownsfield Amendments, U.S. EPA discouraged PPAs but recently there have been a number of notices of such agreements published in the Federal Register. The Chamber asked if Region III was issuing PPAs, and if so, the typical turnaround time in Region III. Directors Borsellino and Ferdas responded that the typical turnaround time in Region III is six months but that the turnaround time depends on the complexity of the agreement. Region III staff noted that PPAs require the involvement of the U.S. Department of Justice which extends the amount of time needed to finalize the agreement. Currently, Region III is not doing many PPAs and in fact the last one was done more than a year ago and involved a lessee. The Chamber asked if Region III was seeing situations, perhaps on a Superfund or RCRA corrective action site, where prospective purchasers wanted to enter into an agreement as a mechanism to define their continuing obligations rather than rely on the bona fide prospective purchaser defense. Regional Counsel Mulkey responded that the driver for the Agency entering into a PPA on such sites was not the fact that the Agency had involvement or knowledge about the site but that the Agency deemed it to be in its interest to have a contractual arrangement with the prospective purchaser so that the Agency would have a responsible party. For example, she stated that a site with pump-and-treat obligations might be one where the Agency would consider a PPA.
- Land-Use Restrictions: The Chamber also asked Region III about the status of U.S. EPA’s Google Earth project for identifying land-use restrictions and the source of the information the U.S. EPA is using for the project. Director Ferdas responded that U.S. EPA is using RCRA corrective action sites and that the information for the project is being provided voluntarily by the companies. He added that the Agency needs a permanent record of land-use restrictions.
- Dioxin Cleanup Standards: The Chamber asked Region III what dioxin cleanup standards are to be used now that U.S. EPA has pulled its interim preliminary remediation goals from OMB. The Chamber also asked when U.S. EPA expects to release the cancer portion of its dioxin risk assessment. Director Ferdas responded that he had “no idea” when the Agency expected to release the cancer portion of its dioxin risk assessment. Directors Borsellino and Ferdas also stated that the non-cancer portion of the dioxin risk assessment would likely be the driver for the level of the cleanup standards. They stated that they have an IRIS number and that they have used that number to calculate the dioxin cleanup standard. For residential cleanups, they stated that the number is 50 parts per trillion (ppt) and that for industrial sites, the standard is 664 ppt. They both stated that U.S. EPA is not using the non-residential standard of 20 parts per billion that U.S. EPA indicated was appropriate in guidance issued in 1998. They also stated that states may also have a more stringent number that would apply. They stated that the question is what does U.S. EPA do about old sites, such as St. Louis and other cities in the west, that were cleaned up using less stringent standards. They stated that they do not have an answer to that question. They do not know if additional sampling or what other activities should be required.
This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.