171 Monroe Avenue, NW, Suite 1000
Grand Rapids, MI 49503-2694 U.S.A.
(616) 742-3930
Fax (616) 742-3999
www.btlaw.com

Tammy L. Helminski
(616) 742-3926
tammy.helminski@btlaw.com

May 15, 2017
Submitted to Federal eRulemaking Portal – www.regulations.gov
DOCKET ID No. EPA-HQ-OA-2017-0190
U.S. Environmental Protection Agency
Sarah Rees, Director, Office of Regulatory Policy and Management, Office of Policy
1200 Pennsylvania Avenue, NW
Mail Code 1803A
Washington, DC 20460
Re:

Comments in Response to Executive Order 13777, “Enforcing the Regulatory
Reform Agenda,” Seeking Input on Regulations that may be Appropriate
for Repeal, Replacement, or Modification

Dear Ms. Rees:
The Federal Recycling and Remediation Coalition (“FRRC”) appreciates the opportunity
to provide comments in response to Executive Order 13777, “Enforcing the Regulatory Reform
Agenda,” which seeks input on regulations that may be appropriate for repeal, replacement, or
modification published at 82 Fed. Reg. 17793 (April 13, 2017). The FRRC is a group of
industrial companies and trade associations that are or may be directly affected by, or which have
members that are or may be directly affected by, regulatory and policy decisions made regarding
many of the programs administered by EPA, particularly those regulating waste and remediation
programs. Coalition member entities – or their members – could significantly be affected by any
regulatory changes that are made as a result of this solicitation for input on E.O. 13777.
I.

Introduction

We believe a fundamental goal of regulatory reform should be to reduce the regulatory
burden by eliminating or revising regulations that (a) provide no benefit to the environment, (b)
provide benefit to the environment but at a cost that grossly exceeds the benefit obtained, (c) are
duplicative of other regulations, or (d) impose restrictions that are more effectively addressed
through other mechanisms. Therefore, FRRC and its members appreciate the opportunity to
provide these comments.

 May 15, 2017
Page 2

II.

Remediation Programmatic Changes
A. RCRA Corrective Action Reform

The FRRC respectfully suggests that RCRA correction action be reformed to focus only
on landfills. Clean-up of “interim status” properties that will never become RCRA landfill
permit holders should be addressed under other EPA or State programs. This would
significantly reduce the applicability of the extremely burdensome RCRA corrective action
process and allow greater reuse of contaminated sites at a faster rate.
1. RCRA Corrective Action is an extremely wasteful program.
The RCRA corrective action process generally includes five steps:1






RCRA Facility Assessment (RFA)
RCRA Facility Investigation (RFI)
Corrective Measures Study (CMS)
Corrective Measures Implementation (CMI)
Long-term care/Achievement of Final Cleanup Goals

Each step along the way can take multiple years. EPA Region 7 recently noted that the
total average time for a site to move through the RCRA corrective action process is a shocking
19 years. There is nothing special or unique about the environmental impacts to these
properties; the substantial delays are indicative of a program that is focused on only achieving
one bureaucratic step at a time – not on getting the sites cleaned up.
The problems with the RCRA corrective action program are well known, and many
efforts have been made through the years to help overcome the administrative handcuffs that
bind regulators from efficiently moving sites within this program along. First, the government
has tried to provide incentives for getting at least to interim regulatory goals. As part of the
Government Performance and Results Act (“GPRA”), the EPA in 1999 developed a Corrective
Action Baseline list of 1,714 sites that “contained mainly facilities identified in the early 1990’s
when U.S. EPA and the states were prioritizing their corrective action workload and were
identified as facilities where early cleanup progress would be appropriate.”2 Further, “Progress
toward the GPRA goals was measured by two interim cleanup milestones known as the human
exposures environmental indicator (EI) and the groundwater EI.”3 The goal for each site on the
initial list was to reach both EIs by 2005 (note that this goal was not clean-up or elimination of
contamination, just the satisfaction of interim milestones).

1

See Learn about Corrective Action, https://www.epa.gov/hw/learn-about-corrective-action (last accessed April 25,
2017).
2

See Historical Record of the Resource Conservation and Recovery Act (RCRA) 2005 Corrective Action Baseline,
https://www.epa.gov/hw/historical-record-resource-conservation-and-recovery-act-rcra-2005-corrective-actionbaseline (last accessed April 25, 2017).
3

Id.

 May 15, 2017
Page 3

This GPRA list has been updated periodically and, as of 2013, contained 3,779 facilities
where EPA and the authorized states were focusing their attention. EPA’s “Baselines for
Resource Conservation and Recovery Act (RCRA) Corrective Action Sites” indicates that “EPA
and the authorized states have an aspirational goal of largely implementing final remedies at 95
percent of facilities requiring corrective action by the year 2020.” 4 Notably, the GPRA goals
focus on achieving the EIs or on constructing final remedies, not actually making sure a property
obtains closure or is put to beneficial reuse.
Second, a recent movement primarily lead out of EPA Regions 3 and 7 called “RCRA
FIRST” is also attempting to encourage development of a more streamlined process for these
sites.5 According to the Agency, “EPA designed the RCRA FIRST approach to improve the
efficiency of RCRA facility investigations and remedy selection at RCRA Corrective Action
Facilities.”6 In the Agency’s own words, the RCRA FIRST approach “addresses the root causes
of delay, such as unclear or non-specific investigation or cleanup objectives and lack of specific
opportunity and process to elevate differences among stakeholders early in the process.” 7 The
Agency hopes that successful implementation will reduce the overall time a site is going through
RCRA corrective action from 19 years average to 6 or 7 years. This is a voluntary program and
there is no real Agency push to implement it at all RCRA corrective action sites; it is an
alternative, but it should be the norm.
2. RCRA should be reformed to allow all “interim status” properties that will
never become landfill permit holders to be eligible for cleanup under other
programs.
While RCRA FIRST looks promising, its wide-scale adoption by all EPA Regions for the
approximately 3,800 sites potentially involved is uncertain. Regardless, these Agency initiatives
are too little and too late, and plainly not enough to overcome the fundamental flaws in the
architecture of this program. RCRA corrective action should not apply to current or former
manufacturing facilities that are conducting cleanups as “interim status” facilities; it should be
limited to landfills that are actual disposal facilities.
The initial intent of corrective action was to make sure that sites where RCRA waste had
been disposed were properly managed and cleaned up. Sites that are looking to be disposal
facilities must apply for a permit. The first step in this process is a “Part A” permit. Eventually,
4

See Baselines for Resource Conservation and Recovery Act (RCRA) Corrective Action Sites,
https://www.epa.gov/hw/baselines-resource-conservation-and-recovery-act-rcra-corrective-action-sites
(last
accessed April 25, 2017).
5

See Memo from Barnes Johnson, Office Director, Office of Resource Conservation and Recovery, Regarding
RCRA FIRST, May 18, 2016 (https://www.epa.gov/sites/production/files/2016-06/documents/rcra_first_memo
_signed_by_od2016-05-24-163238.pdf).
6

See A Toolbox for Corrective Action: Resource Conservation and Recovery Act Facilities Investigation Remedy
Selection
Track,
https://www.epa.gov/hw/toolbox-corrective-action-resource-conservation-and-recovery-actfacilities-investigation-remedy.
7

Id.; see also RCRA First Toolbox at 9 (https://www.epa.gov/sites/production/files/2016-06/documents/
a_toolbox_for_corrective_action_resource_conservation_and_recovery_act_facilities_investigation_remedy_selecti
on_track_rcra_first.pdf).

 May 15, 2017
Page 4

after a public meeting is held and other administrative requirements are met, an entity then files a
“Part B” permit. Before the Part B permit is filed, however, a facility operates in what is called
“interim status.”8
Before the modern day hazardous waste program was well developed, it was not
uncommon for manufacturing facilities to store or treat limited wastes somewhere on-site. Many
of those facilities filed a “Part A” RCRA permit application back in the early 1980’s but then
never filed a “Part B” permit application because they were not true landfill disposal facilities or
determined they could operate without the need to be a regulated treatment, storage, or disposal
facility (TSDF). However, regardless of whether these facilities subsequently terminated their
“interim status” classification, they are now, decades later, considered by EPA to be subject to
RCRA corrective action to remediate any impacts.
As stated above, RCRA corrective action focuses on documenting site conditions, not
actually getting to remediation endpoints. Without a results-oriented program, the sites linger in
the program a very long time. In contrast, if those same sites had not entered the “interim status”
universe in the first place or disposed of the same materials at another property, they could
instead by remediated under CERCLA or under a state cleanup program. Those programs, in
contrast to RCRA, are more results oriented and encourage reuse of brownfield sites.9
Moreover, RCRA liability generally falls to the current property owner. This causes two
major legal liability issues. First, the statute itself does not allow for private party actions against
others who may have been responsible for disposing of the material in the first place. Second,
because the filing of the “Part A” permit back in the early 1980’s may be the “hook” that catches
a site under RCRA corrective action, there may be current property owners that may not even
know they have RCRA corrective action obligations. This could lead to citizen suits and tort
actions related to liabilities that a party does not even know it has and that are not necessarily
based on any real risk of harm, but are merely because the steps in the corrective action process
were not completed.
In sum, we need to move sites out of the RCRA corrective action program. RCRA
corrective action is meant for disposal sites, so it should be limited it to actual landfills. All
interim status properties that will never become landfill permit holders should be eligible
for cleanup under other federal or state programs.
While this suggestion does not propose per se removing any actual regulations, it would
limit the applicability of particularly onerous requirements in 40 C.F.R. Part 265 (and related
implementation guidance) and remove needless regulatory burdens for numerous interim status
facilities. Instead of being caught in RCRA purgatory for decades, these sites can be cleaned up
and reused within a matter of a few years or even a few months. As of 2013, 1,965 of the 3,779
sites listed on the RCRA 2020 Corrective Action Baseline had not yet achieved the remedy
8

See Introduction to United States Environmental Protection Agency Permits and Interim Status (EPA, Sept. 2005),
available at: https://www.epa.gov/sites/production/files/2015-09/documents/permits05.pdf (p. 10 showing permit
process) (last accessed April 25, 2017).
9

Additional reforms to make CERCLA work better are described in Section II.B., infra.

 May 15, 2017
Page 5

construction milestone. Allowing flexibility in how the portion of these 1,965 sites that do not
have Part B permits are addressed has the potential to save millions and millions of dollars and
more expeditiously and efficiently put them back into productive use.
B. Reform of Overall Cleanup Program
If interim status facilities are allowed to be freed from the chains of RCRA corrective
action, they should be allowed to conduct cleanup under the federal CERCLA (“Superfund”)
program or analogous state programs. CERCLA allows for liability to be shared among
numerous potentially responsible parties, not just the current owner, and it encourages
brownfield reuse by providing a defense to liability through its bona fide prospective purchaser,
contiguous property owner, and innocent landowner provisions.10 CERCLA, however, must be
improved to facilitate getting sites to actual closure.
1. CERCLA must set site closure and reuse as actual goals.
Closure and reuse must be emphasized as actual goals of the so-called “Superfund”
program. This table from EPA shows the number of sites for each status and milestone as it
relates to the National Priority List (“NPL”) for Superfund sites as of April 20, 2017:11

10
11

See 42 U.S.C. §9601(35), (40); §9607(q)(1)(B), (r).

Superfund: National Priorities List (NPL) Superfund: National Priorities List (NPL), available at:
https://www.epa.gov/superfund/superfund-national-priorities-list-npl (last accessed April, 25, 2017).

 May 15, 2017
Page 6
Astoundingly, 1189 sites are designated as having “Construction Completion,” yet only
392 sites have been deleted from the NPL. From this, EPA appears to have a strong desire and
motivation to get remedies constructed, but clearly getting sites off the NPL and put to reuse is
not a priority.
2. CERCLA must incorporate deadlines for agency review.
Guidance documents should be developed that set limits on EPA’s review of materials at
each step of the Superfund process. EPA articulates there are nine phases for Superfund sites,
from the initial site inspection all the way to eventual reuse.12 While the phases are not
necessarily linear, all must be completed. Sites can be held in limbo while the agency makes a
decision whether one phase is finished before the site can truly move on to the next phase.
Other cleanup programs incorporate timelines for agency review into the cleanup
programs, to add some certainty to the process and to encourage timely agency decision-making
as a site moves through the remediation process. For example, in Michigan, once a party
submits a response activity plan describing the remediation it wants to conduct, the Michigan
Department of Environmental Quality (MDEQ) has either 150 or 180 days to respond, depending
on whether the plan requires public participation.13 If the MDEQ fails to respond within the
given timeframe, the plan is “considered approved.”14 After completing remediation, a party can
then submit a “no further action” report, and the agency must respond within the same
timeframes as the prior plan.15 A party can also submit a “certificate of completion” report, with
the MDEQ having 90 days to review and respond, assuming it was for a response activity plan
previously approved by the MDEQ.16 The end result is that the parties have incentives and
statutory mandate to get sites moving toward and actually achieving completion.
We understand that employing such a cooperative approach across the whole country is
impractical due to the variety of sites. Therefore, employing timeframes, such as those used in
Michigan, is a productive compromise to make sure all parties have incentives to get sites to a
reuse endpoint much more quickly, thereby reducing the long-term regulatory burden and the
costs associated with the process. The FRRC requests that EPA adopt similar review
timeframes.

12

See https://www.epa.gov/superfund/superfund-cleanup-process.
The nine phases include: Preliminary
Assessment/Site Investigation, NPL Site Listing Process, Remedial Investigation/Feasibility Study, Record of
Decision, Remedial Design/Remedial Action, Construction Completion, Post-Construction Completion, NPL Site
Deletion, Site Reuse/Redevelopment.
13

Mich. Comp. Law 324.20114b(3).

14

Id.

15

Mich. Comp. Law 324.20114d(8).

16

Mich. Comp. Law 324.20114f(3)(b).

 May 15, 2017
Page 7

3. EPA should consider adopting a national licensed site professional (“LSP”)
program similar to those in place in some of the states (such as
Massachusetts) for CERCLA cleanup and RCRA corrective action projects.
EPA could adopt a national licensed site professional (“LSP”) program similar to
those in place in some of the states (such as Massachusetts) for CERCLA cleanup and
RCRA corrective action projects.17 As stated above, administrative review of submittals by
the agency is too slow. Cleanup projects are delayed for months or even years, and these delays
can add significant costs to the projects. Also, many of these cleanup projects significantly delay
or reduce the likelihood of redevelopment. In addition to adopting review timelines, EPA could
also adopt a national LSP program. This would speed up the review and implementation of
cleanup projects, especially if EPA staff resources may be limited.
4. CERCLA must allow for efficiencies in the process and the use of
presumptive remedies.
The agency needs to allow for efficiencies in the process and the use of presumptive
remedies. The CERCLA process, though it can be shorter than RCRA corrective action, is still
overly long and complicated. The process should allow for the collapsing of some of the nine
phases at certain sites, including allowing for presumptive remedies to avoid lengthy studies if
the remedy is obvious.
For example, in the early 1990’s the Superfund Accelerated Cleanup Model (“SACM”)
was developed and implemented in certain situations to allow for such efficiencies. 18 The
overall goal of SACM was “… to accelerate cleanups and increase efficiency in the Superfund
process within the framework of CERCLA and the NCP, while ensuring that cleanups continue
to be protective of the environment.” This process allowed such practices as consolidating the
numerous data collection efforts contemplated by the NCP into one large site assessment. 19 The
details of the SACM initiative are now relegated to the EPA archives.20 Guidance documents on

17

See, e.g., Board of Registration of Hazardous Waste Site Cleanup Professionals, Executive Office of Energy and
Environmental Affairs, http://www.mass.gov/eea/agencies/lsp/ (last accessed May 10, 2017).
18

See, e.g., Guidance on Implementation of the Superfund Accelerated Cleanup Model (SACM) under CERCLA
and the NCP, EPA memo, July 7, 1992, available at: https://nepis.epa.gov/Exe/ZyNET.exe/
9100UG4F.txt?ZyActionD=ZyDocument&Client=EPA&Index=1991%20Thru%201994&Docs=&Query=&Time=
&EndTime=&SearchMethod=1&TocRestrict=n&Toc=&TocEntry=&QField=&QFieldYear=&QFieldMonth=&QFi
eldDay=&UseQField=&IntQFieldOp=0&ExtQFieldOp=0&XmlQuery=&File=D%3A%5CZYFILES%5CINDEX%
20DATA%5C91THRU94%5CTXT%5C00000026%5C9100UG4F.txt&User=ANONYMOUS&Password=anonym
ous&SortMethod=h%7C-&MaximumDocuments=1&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/
i425&Display=hpfr&DefSeekPage=x&SearchBack=ZyActionL&Back=ZyActionS&BackDesc=Results%20page&
MaximumPages=1&ZyEntry=1&slide (last accessed April 25, 2017).
19

Id. at 3.

20

Id.

 May 15, 2017
Page 8

how to conduct the key investigative piece of the CERCLA process, the remedial
investigation/feasibility study, have not been updated since the late 1980’s or early 1990’s. 21
EPA has begun using what it calls the “Superfund alternative (SA) approach,” but this
approach only foregoes the process of listing a site on the NPL and it does not change the
investigation or cleanup process. The SA “uses the same investigation and cleanup process and
standards that are used for sites listed on the NPL. The SA approach is an alternative to listing a
site on the NPL; it is not an alternative to Superfund or the Superfund process.”22
With the decades of experience with CERCLA sites, the agency, environmental
professionals, potentially responsible parties, and the public know how to evaluate and address
contaminated properties. The agency needs to take advantage of this acquired knowledge and
experience and allow for efficiencies in the process and the use of presumptive remedies.
5. CERCLA should adopt a risk management approach.
CERCLA should encourage and adopt a more widespread use of risk management
and institutional controls approaches. Current approaches allow for future land use as a
consideration in site assessment and identification of remedial alternatives, but not in setting the
performance goals the remediation must achieve.
EPA has issued guidance that “Regions should consider reasonably anticipated future
land use when determining remedial action objections, and during the evaluation of alternatives
leading to the selection of the remedy.”23 In this same document, EPA recognizes that
considering current and future land use is also important when conducting its baseline risk
assessment and later in the process when a site is considering the use of institutional controls.24
In contrast, CERCLA Section 121(d)(2) requires that on-site remedial actions must attain
(or waive) Federal and more stringent State applicable or relevant and appropriate requirements
(ARARs) of environmental laws upon completion of the remedial action.25 If a requirement is
“applicable or relevant and appropriate, it must be met, unless an ARAR waiver can be used.
ARARs represent the minimum that a remedy must attain.”26 As current practice, ARARs do not
take into account what potential exposure pathways may exist.
21

See “RI/FS Document Search” listing at https://www.epa.gov/superfund/superfund-remedialinvestigationfeasibility-study-site-characterization (last accessed April 25, 2017.
22

Superfund Alternative Approach: https://www.epa.gov/enforcement/superfund-alternative-approach (last accessed
April 25, 2017).
23

See Considering Reasonably Anticipated Future Land Use and Reducing Barriers to Reuse at EPA-lead Superfund
Remedial Sites (EPA, March 17, 2010) at 4, available at: https://semspub.epa.gov/work/HQ/175563.pdf (last
accessed April 25, 2017).
24

Id. at 5, 20.

25

42 U.S.C. §9621(d)(1).

26

See ARARs Q's & A's: General Policy, RCRA, CWA, SDWA, Post-ROD Information, and Contingent Waivers
(EPA, June 1991) at Q4, available at: https://semspub.epa.gov/work/HQ/174497.pdf (last accessed April 25, 2017).

 May 15, 2017
Page 9

The tension between these two approaches leads to situations where there is a criterion
that cannot be reasonably met (yet may not qualify for a waiver) and does not need to be met
because it addresses a pathway that will never be complete. A common example is a site where
there are groundwater impacts and these impacts will never achieve the drinking water ARAR
(achieving the maximum contaminant level (MCL) under the Safe Drinking Water Act). If no
one is using the groundwater for drinking purposes and institutional controls in the form of either
an ordinance, and/or deed restriction, or both, prohibit the use of the groundwater, then the
groundwater consumption pathway is not complete. Yet, a potentially responsible party must
continue to monitor the groundwater in perpetuity, although it may or may not ever reach this
level based on an inapplicable assumption because no one is ever going to drink the groundwater
at the site.
EPA should continue to consider future land use in remedy selection, but it should
expand this to include setting the cleanup levels that must be achieved. EPA should implement
changes to CERCLA to encourage and adopt a more widespread use of risk management
and institutional control approaches. This would reduce needless regulatory burden, allow
sites to get to closure, remove a contamination “stigma,” and get more sites into productive use
more quickly.
6. More clarity and certainty should be provided for long-term obligations.
Under current remediation programs there is no certain way to ever have a facility
become untainted by the stigma of historic contamination. For example, under RCRA the
thousands of properties nation-wide that were once permitted to treat, store or dispose of
hazardous waste are perpetually subject to corrective action by the owner/operator of the
property even if there have been no releases or the releases have been remediated. This
requirement perpetually stigmatizes and limits the use of our nation’s industrial properties by
burdening every potential land owner or operator with a statutory obligation to possibly conduct
a future fence-line to fence-line corrective action investigation and cleanup of the property,
simply because past operations at the property were subject to a RCRA hazardous waste permit.
Remediation program reforms must address providing certainty about what achieving the end
point of remediation really means and how it can allow sites that have been remediated to truly
have a new, useful life.
7. Existing conflict in how the vapor intrusion pathway is assessed should be
removed.
Currently, EPA imposes duplicative and inappropriate requirements on active
manufacturing operations where indoor vapor intrusion issues may exist from past releases of
gasoline and other volatile chemicals instead of relying on the Occupational Safety and Health
Act (OSHA) requirements for such exposures. EPA has burdened industry with duplicative,
costly and unnecessary compliance standards at active industrial sites undergoing remediation
where OSHA requirements apply, which causes confusion and investment uncertainties. EPA
should accept OSHA standards for demonstrating compliance with the vapor intrusion pathway
at properties otherwise subject to OSHA requirements.

 May 15, 2017
Page 10

8. Landowner status liability should be eliminated.
CERCLA provides that a person who owns or operates real estate is liable for preexisting contamination on or emanating from the real estate regardless of fault, unless the person
takes advantage of one of the statutory off-ramps from liability.27 This liability is unfair and a
trap for the unwary. The liability off-ramps (e.g., innocent purchaser and bona fide prospective
purchaser defenses) are costly, time-consuming, delay-causing, do not add to environmental
protection, and can be defeated if the person fails to maintain compliance at all times with all of
the conditions of the off-ramps. The status liability risk causes significant costs and delays in
real estate and other business transactions, especially in due diligence activities and negotiations
among the parties. We recommend the elimination of the costly and burdensome CERCLA
status liability for owners and operators of real estate who did not cause or contribute to the
historic contamination at their properties, do not own or operate waste management businesses at
their properties, and are only potentially liable under CERCLA because of their ownership or
operator status under the strict liability framework of the current statute.
9. Make statutory changes to address divisibility under CERCLA.
CERCLA apportionment of liability has been at the heart of multitudes of litigation
matters through the decades. In 2009, the Supreme Court decided the case of Burlington
Northern & Santa Fe Railway Co. v. United States, which generally set forth the process that
divisibility among multiple potentially responsible parties is possible if the defendant can show
that the harm is capable of apportionment and that a “reasonable basis” for apportionment
exists.28 In the eight years since, there has not emerged any further certainty about how an entity
goes about demonstrating either of these, what factors parties and courts must consider, and what
level of factual analysis is required. EPA should consider advancing statutory changes that
provide this certainty for how CERCLA liability can be divided among multiple parties.
Without it, continued litigation will ensue with courts having little or guidance for what
Congress intended in these situations.
C. Toxic Substances Control Act 15 U.S.C. §§ 2601 et seq. (TSCA) PCB
Remediation Program Changes.
1. TSCA PCB cleanup program should be eliminated and merged into the
existing RCRA program.
While all other federal remediation programs are handled under either RCRA or
CERCLA, if the constituent of concern is polychlorinated biphenyls (PCB), then it is handled
under TSCA. This makes no sense. This extra remediation program to handle one family of
chemicals should be eliminated and merged into EPA’s existing hazardous waste program.
Currently, virtually all hazardous waste matters are regulated under RCRA. An exception is
PCB cleanups, which are subject to a different program, with a different set of regulations, under

27

42 U.S.C. § 9607(a)(1).

28

556 U.S. 599, 129 S. Ct. 1870 (2009).

 May 15, 2017
Page 11
TSCA.29 A separate program for PCB cleanups is unnecessary, costly, and burdensome. The
TSCA PCB cleanup program should be eliminated and merged into the existing remediation
programs.
2. PCB cleanups should be regulated the same regardless of source or year of
release.
In making programmatic changes to how the cleanup of PCBs is regulated, requirements
should clearly regulate all PCB cleanups the same regardless of source concentration or year of
release. Currently, PCB cleanups under TSCA are subject to different regulatory requirements
depending on the source of the PCBs and the date of their release. This means that PCBs at the
same concentration, released perhaps decades ago, may be subject to different requirements
depending on these factors, which are not always easy to determine or document to the
satisfaction of EPA.30 This causes needless complication, cost, and delay in many PCB
cleanups, without any environmental or human health benefit. Regulations should be amended
to eliminate the different treatment of PCBs and allow them to be managed based on their asfound concentrations regardless of their source or year of release.
D. Summary of Remediation Programmatic Changes
Based on all of the above, and likely many other comparable experiences over the last
decades of attempting to implement these EPA clean-up programs, we suggest the following
reforms of the EPA corrective action and “Superfund” clean-up programs:
1. RCRA corrective action mandatory applicability should be limited to only those sites
that have or will have Part B permits (e.g., landfills), with other contaminated sites
addressed by federal or state “Superfund” programs (i.e., CERCLA) or other state
cleanup programs.
2. CERCLA must set site closure and reuse as actual program goals to be measured and
tracked.
3. CERCLA must incorporate deadlines for agency review of work plans.
4. CERCLA should consider adopting a LSP program.
5. CERCLA must allow for efficiencies in the process and the use of presumptive
remedies.
6. CERCLA should adopt a risk management approach, and consider realistic exposure
scenarios in light of future land use.
7. Remediation programs need to provide certainty for long-term obligations.
8. Existing conflict in how the vapor intrusion pathway is assessed should be removed.
9. CERCLA should limit landowner status liability.
10. CERCLA should be amended to address divisibility and clarify formulas that could
be applied recognizing that applicability is determined on a case-by-case basis.
11. TSCA PCB program should be eliminated and merged it into EPA’s existing
hazardous waste program.
29

See 40 CFR Part 761.

30

See 40 CFR Part 761.

 May 15, 2017
Page 12

12. All PCB cleanups should be regulated the same regardless of source or year of
release.
We respectfully request consideration of these proposed regulatory reforms to decrease
the unnecessary administrative burden associated with from U.S. EPA clean-ups, encourage
brownfield reuse, and avoid economic waste.
III.

Regulatory Changes
A. Definition of Solid Waste - Rescind Legitimacy Criteria and Verified Recycler
Requirements

In the Definition of Solid Waste Final Rule signed by EPA Administrator Gina McCarthy
on December 10, 2014, and published in the Federal Register on January 13, 2015, EPA set new
criteria for recycling hazardous secondary material. According to EPA’s Fact Sheet: “The final
rule also establishes a clear, uniform legitimate recycling standard for all hazardous secondary
materials recycling that will improve compliance and help ensure that the hazardous secondary
materials are in fact legitimately recycled, rather than illegally disposed of.”31 For a hazardous
secondary material to be “legitimately recycled” under the regulations, the following four
mandatory legitimacy criteria must be satisfied: (1) the hazardous secondary material must
provide a useful contribution to the recycling process or product; (2) the recycling process must
produce a valuable product or intermediate; (3) the hazardous secondary material must be
managed as a valuable commodity; and (4) the recycled product must be comparable to a
legitimate product or intermediate.”32 The rule went into effect federally on July 13, 2015, but
the legitimacy criteria have been subject to a court challenge pending in the U.S. Court of
Appeals for the D.C. Circuit.
The FRRC requests that this rule at 40 CFR §260.43 be rescinded. Making all of the
legitimacy criteria mandatory inhibits recycling and useful reuse of these secondary materials.
These rules impose unnecessarily stringent limits and conditions on the types of materials that
can continue to be used without being considered a waste (beneficial reuse). Generators are
inhibited from extending the use of materials due to the extensive and restrictive requirements.
Materials with potential beneficial reuses are often treated as waste and are disposed rather than
re-purposed. There is an improper long-term liability that remains with the generator throughout
the life of the material that is not disposed by the first generator. This “cradle to grave”
requirement inhibits a generator from exploring viable beneficial reuse opportunities. EPA
should remove re-purposed materials from the solid waste regulatory structure and create a new,
streamlined exclusion that encourages the extended use of materials and supports the
conservation of resources, reduces the need for new raw materials, and conserves landfill space.

31

See “Fact Sheet: 2015 Definition of Solid Waste (DSW) Final Rule,” available at:
https://www.epa.gov/sites/production/files/2015-08/documents/dsw_fs_edited80215.pdf (last accessed April 30,
2017).
32

Id.

 May 15, 2017
Page 13

Additionally, the rule at 40 CFR §261.4(a)(24) as it relates to verified recyclers needs to
be rescinded or significantly re-worked. The difficulty in meeting the requirements for a verified
reclamation facility, and the difficulty and time some of those may have in obtaining either a Part
B permit or a variance under 40 CFR §260.31(d), inhibits recycling and useful reuse of these
secondary materials.
B. RCRA Hazardous Waste Generator Improvements Rule
On November 28, 2016, EPA published the final Hazardous Waste Generator
Improvements Rule.33 This rule is to be effective May 30, 2017. There are several pieces of this
new rule that can, and should, be removed.
In general, these new hazardous waste rules create many new administrative requirements
intended to enhance enforcement, yet they provide little-to-no environmental benefit. They also
extend “clean closure” standards (normally applicable to interim status and permitted TSDFs) to
large generators that simply accumulate waste prior to shipment off-site, increasing uncertain
long-term liability for businesses. Generators have extensive administrative and operational
burdens within their manufacturing operations that do not provide additional protection of the
environment. Generators already have “cradle to grave” responsibility to ensure wastes are not
mismanaged, and these requirements penalize facilities that comply with the rules.
The FRRC recommends, and supports comments by others that may also recommend
EPA take advantage of every opportunity to simplify and reduce the requirements by eliminating
prescriptive operational, monitoring, and other requirements that have little-to-no environmental
benefit.
The FRRC’s specific recommendations are below.
1. Remove Distinction Between “Independent Requirements” and a “Condition
for Exemption.”
In 40 CFR §262.10, EPA lays out the “independent requirements” for both small- and
large-quantity generators to distinguish them from “conditional requirements” explained
elsewhere in the regulations. This section is unnecessary. The distinction between “independent
requirements” and a “condition for exemption” is not that helpful to generators, is potentially
confusing, and could open up generators to disproportionate enforcement risks. The FRRC, and
others, provided this information to EPA in comments on the proposed rule and EPA chose to
move forward with this new regulation.34 In fact, this aspect of the new regulation is now being
challenged in court.35

33

81 Fed. Reg. 85732 (Nov. 28, 2017).

34

See FRRC Comments submitted into Dkt. # EPA-HQ-RCRA-2012-0121.

35

American Chemistry Council, et. al. v. EPA, D.C. App.. No. 17-1064.

 May 15, 2017
Page 14

2. Remove Certain Provisions that Apply to Satellite Accumulation Areas.
The satellite accumulation area provisions36 contain multiple regulations that can be
removed in order to move the regulations back to their original intent – namely, that these lowvolume waste generating areas do not need to be handled with all of the same precautions as
other areas. These regulations are discussed below.
a. 40 CFR §262.15(a)(6)(i) can be removed. This section cross-references 40 CFR
§265.17 that puts limitations on incompatible wastes and provides for physical
separation. This could lead to requiring that facilities implement impractical
measures in manufacturing operations where there may not be the space necessary to
accommodate this requirement and where there may not actually be any threat of real
harm due to the low volumes of waste accumulated in satellite areas.
b. The language in 40 CFR §262.15(a)(6)(i) and (ii) should be changed to “business
days” instead of “calendar days.” With the current language limiting this to three
calendar days, this language could potentially require personnel to make a special trip
to the facility if there is a long weekend or other scheduled non-working time period.
Also, some generators ship their waste directly off-site from their SAAs and do not
use central accumulation areas. These generators, would be relying on the timing of
third-party transporters, which makes the currently-required three calendar days an
unnecessary constraint for generators that do not always control the timing of
shipments.
c. 40 CFR §262.15(a)(7) and (8) can be deleted. Right now they state that “all” satellite
accumulation areas operated by either small or large quantity generators must comply
with preparedness and prevention regulations and emergency response procedures.
Focusing on areas where waste is being either generated or accumulated and requiring
emergency response equipment at each of these locations is impractical and
unnecessary. Within a manufacturing facility there can be many points of generation
or accumulation. It is impractical and unnecessary to supply emergency responsetype equipment for each and every one of these locations. For hazardous waste, the
focus has always been on longer-term storage and the requirements for maintaining
emergency response equipment have focused properly on where these wastes are
centrally accumulated; it should remain so.
d. Satellite accumulation area requirements should be revised to add flexibility in how
wastes are moved between these areas. Sometimes containers are not full and no
longer need to be used in one location, but could be used in another. Or, smaller
containers, which may be the “right” size at the point of generation, should be
allowed to be emptied into a larger container on the plant floor that may not be at the
point of generation of the initial container.

36

40 CFR §262.15.

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Page 15

3. Rescind changes to the Waste Determination and Monthly Generator
Category Determination Requirements in 40 CFR §262.11 and 40 CFR
§262.13.
The new rule contains waste determination and generator category determinations that
provide no environmental benefit and can be rescinded.
a. EPA should rescind its expansion of the requirements in 40 CFR §262.11 that
mandate extensive documentation of information used to make an accurate waste
determination. The changes to the regulations create subjective standards for what
constitutes complete documentation of information used for waste determinations.
The intent of the determination is to ensure proper management and disposal of
hazardous waste. This expansion could result in a generator being non-compliant
with these provisions if the agency determines the documentation is not complete
(based on an arbitrary standard), even if the waste determination is accurate. In
regards to recordkeeping, EPA states, “This language includes a list of specific types
of records that might be used when making a waste determination by either method
[analytical testing and generator knowledge]. To further clarify, the Agency is
incorporating into the final rule the term ‘‘other determinations,’’37 which was
previously in the text in § 262.40(c). This term captures the concept that records must
be kept for hazardous waste determinations made by any method. This regulation
now creates an undefined compliance standard focused on information used rather
than whether the waste determination is correct (or not).
b. EPA needs to rescind or revise its policy on the management of waste that is
accumulated and may continue being generated while pending analytical test results.
EPA states: “We have and continue to recognize that situations will occur where a
generator is not able to make an accurate waste determination based on knowledge
alone, and the generator will need to send a representative sample of the waste to be
tested. However, as the EPA has stated in the past, the generator must manage the
waste as hazardous waste until the results of the test are received, and continue to
manage it as hazardous waste if the hazardous waste determination is confirmed by
the test.”38
In practice, generators may perform verification sampling of what is expected to be
non-hazardous waste based on the information used regarding the products, materials,
and processes used in the operation. It is impractical to impose hazardous waste
management standards (satellite area accumulation requirements, closed containers,
labeling, etc.) just because a generator has chosen to sample the waste to verify its
waste determination of a non-hazardous waste. If the generator believes it has
sufficient information to make the determination as non-hazardous and chooses to
perform testing as additional documentation, it should not be penalized and subject to
37

81 Fed. Reg.85753.

38

81 Feg. Reg. 85750-85751.

 May 15, 2017
Page 16

managing the waste as hazardous when it does not have reason to believe it meets
hazardous waste criteria. Further, this policy could cause a very small quantity
generator or small quantity generator to change generator categories and be subject to
the large quantity generator standards only during the time that the results are
pending; the burden during this period would be tremendous without providing any
environmental benefit and compliance would be unattainable.
c. EPA should rescind the regulations requiring generators to count the hazardous waste
it accumulates each month. Prior to the new rules in 40 CFR §262.13, generators
have been required to operate in the correct generator category each month but were
not required to specifically count the amount of hazardous waste accumulated every
month. A generator with consistent operations and who makes waste determinations
when the waste is initially generated would evaluate the impact of an increased
quantity of hazardous waste at the time the change occurs rather than on a monthly
basis. The requirement to operate in the correct category each month does not
demand a monthly measurement but requires appropriate waste determinations when
the waste is first generated. A generator would perform monthly calculations if it
wanted to operate in a “lower” category and was close to the quantities allowed in the
“higher” category; however, there should not be a requirement to perform monthly
measurements when generators are consistently in one category. Although EPA
states in the preamble that “generators are not required to follow the included steps
each month,”39 this is not reflected in the regulations. The regulations set forth
specific procedures that must be followed, such as “(1) Counting the total amount of
hazardous waste generated in the calendar month.”40 There may be hundreds of
satellite accumulation areas within a manufacturing environment and the rate of waste
generation may not vary month to month to result in a category change. This burden
is unnecessary and does not provide any additional environmental protection.
4. Remove Requirements for a Quick Reference Guide.
In 40 CFR §262.17(a), EPA has new requirements for large quantity generators to
develop and submit a Quick Reference Guide for emergency response in addition to their
existing comprehensive emergency contingency plans. This requirement is unnecessary and
duplicative. The effort required to keep the guides accurately up to date is burdensome and does
not provide a benefit for responders familiar with the facility. This is especially true for facilities
with trained, internal emergency response teams that already are subject to stringent process
safety management, risk management, and emergency response requirements under other
regulatory programs. This requirement can be removed and, at a minimum, should be revised to
provide an exemption for facilities that have with internal emergency response capabilities.

39

81 Fed. Reg. 85756.

40

40 CFR 262.13(a)(1).

 May 15, 2017
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5. Remove Requirements for Re-notification of Generator Status.
In 40 CFR §262.18(d), EPA has new requirements for small and large quantity generators
to provide periodic re-notification of their generator status. This requirement is unnecessary and
duplicative. Re-notification is unnecessary, as facilities already provide notice as part of their
biennial reporting, and otherwise have incentives to let the agency know when their generator
status changes or when the property ownership changes. For example, RCRA identification
follows the property. Therefore, when a property changes hands, the former owner has incentive
to inform EPA that it no longer has RCRA activities at a given property. These new renotification provisions can be removed.
EPA’s main cited reason for requesting this is the agency’s inability to maintain a “clean”
database.41 This problem is an administrative issue for EPA and the state agencies to resolve.
They should not simply shift this burden to the regulated entities, which could in turn be actually
replacing one administrative burden on the agencies with another.
C. Commercial and Industrial Solid Waste Incineration Units (40 CFR Part 241)
EPA created solid waste regulations to distinguish which non-hazardous secondary
materials are solid wastes when burned in combustion units. These rules restrict the burning of
certain materials with high energy value, such as paint/solvent wastes. Certain facilities that had
been burning paint sludge ceased burning these materials, resulting in landfilling the material.
EPA should revise the regulation to allow the combustion of these materials for energy recovery.
Specially, EPA should expand the federal exclusion for F019 generated by the automotive
industry to include provisions to allow for thermal combustion with energy recovery, recycling
or other methods as determined appropriate by the generator. The automotive industry has
proven time and time again that this material no longer incorporates the constituents for which it
was originally listed and otherwise lacks any characteristic that would prove it to be hazardous
waste.
Under the current requirements, there is an unnecessary volume of material being
landfilled. The opportunity to capture energy from this material is being wasted. Even if
combustion results in material still needing to be landfilled, the volume would be much less and
the benefit of energy recovery would be realized.
D. Import/Export Rule
1. Remove Contract Requirement.
EPA Administrator Gina McCarthy signed the Hazardous Waste Export-Import
Revisions Final Rule on October 28, 2016; it was published in the Federal Register on November
28, 2016, and was effective December 31, 2016. The contract requirements at 40 CFR
§262.83(f) should be removed. These requirements needlessly increase the costs and burdens
associated with transboundary shipments between the U.S., Canada and Mexico. The increased
costs and burdens include negotiating contracts that include the information required under the
41

See 80 Fed. Reg. 57947.

 May 15, 2017
Page 18

rule as finalized, revising and maintaining the contracts over time as information changes, and
ensuring the contracts are available to EPA upon request.42 Entities already have incentives to
make certain that wastes are handled appropriately. There is no need for the regulations to
dictate what should be in the contents of an agreement between private parties for the
management of such wastes, let alone make these private-party contracts publicly available.43
2. Withdraw the Internet Posting Rule.
The FRRC encourages EPA to withdraw the following proposed rule: Internet Posting of
and Confidentiality Determinations for Hazardous Waste Export and Import Documents (EPAHQ-OLEM-2016-0492), published at 81 Fed. Reg. 85459 (November 28, 2016) (“Internet
Posting rule”). This rule is stated as a companion rule to the Final Hazardous Waste ExportImport Revisions (EPA-HQ-RCRA-2015-0147), which was published the same day as this
proposed Internet Posting rule at 81 Fed. Reg. 85696 (“Export-Import rule”).
The proposed rule requires electronic reporting of certain information about the
import/export of hazardous waste.44 It requires that regulated entities post some of this
information on their own websites until EPA has an electronic system in-place. In general, the
FRRC views the proposed Internet Posting rule as setting bad precedent because it allows the
agency to dictate the contents of a regulated entity’s website for an unspecified period of time.
The FRRC also believes the proposed rule is not useful because there would be no uniformity as
to how the information is accessed. In addition, (a) the proposed rule would require private
entities to assume a role the regulations have directed at the agency; (b) EPA postures the
internet posting rule as being “interim,” yet there is no deadline by which EPA is to have its
electronic reporting system in place; and (c) the regulations are in direct contradiction to
statements EPA made in its Hazardous Waste Export-Import Revisions Final Rule published in
the Federal Register the exact same day.
E. Deny PEER Petition
On April 11, 2016, EPA published its tentative denial of the 2011 PEER petition for a
rulemaking to alter the corrosivity criteria in RCRA. The petition sought to reduce the pH
criteria to 11.5 from 12.5 for a waste to be characterized as corrosive and to apply it to
nonaqueous materials. Comments were originally due on the tentative denial June 10, 2016, but
EPA later extended this deadline to December 7, 2016. The FRRC urges EPA to finalize its
denial of the PEER petition. The reasons articulated in its tentative denial remain true,
applicable, and dispositive: 1) the materials PEER submitted for consideration by the agency did
not support its request; and 2) “the petition does not show that waste management activities
resulted in the exposures of concern, nor does it identify how the proposed regulatory changes
would address these exposures.”45

42

See 40 C.F.R. §§ 262.83(f).

43

Id.

44

See 81 Fed. Reg. 85696.

45

See 81 Fed. Reg. 21295 (April 11, 2016).

 May 15, 2017
Page 19

F. Emergency Planning and Community Right-to-Know Act, 42 U.S.C. §§ 11001 et
seq. (EPCRA)
1.

EPA should rescind recycler notification requirement.

EPA should eliminate the requirement for recyclers to notify recipients about chemical
constituents in the recycled materials. EPCRA regulations at 40 CFR § 372.45 require a recycler
to determine, and notify the recipient about, the chemical composition of recycled materials.
The notification requirement is costly, a burden on recycling, and rarely provides useful
information because the recipients typically know more about the materials than the supplier.
EPA should eliminate the notification requirement as applied to recycling.
2. EPCRA Section 312 SDS requirement should be revised.
Under regulations pursuant to EPCRA section 311, facilities must submit safety data
sheets (SDSs) for each hazardous chemical present on-site at or above the reporting thresholds to
their State Emergency Response Commission (SERC), Local Emergency Planning Commission
(LEPC), and local fire department. The reporting thresholds are lower for “extremely hazardous
substances” listed at 40 CFR 355, Appendix B. Facilities may choose to submit a list of the
hazardous chemicals grouped into hazard categories instead. Although EPCRA section 311
regulations require a one-time submittal, there is another annual inventory report required under
EPCRA section 312, which is burdensome and of minimal value. Facilities that are required to
submit SDSs or the list of hazardous chemicals under EPCRA Section 311 are required to submit
an annual inventory report for the same chemicals (EPCRA Section 312 requirement). This
inventory report must be submitted to the SERC, LEPC and local fire department by March 1 of
each year.
Generating the annual inventory reports is labor intensive, as large sites have thousands
of SDSs to include. There has never been any regular auditing of these reports by EPA or state
agencies, which calls into question their significance. The value of these reports to emergency
responders or for any other meaningful purpose to protect the community or environment is
questionable. EPA should amend these regulations to require submittal of a one-time inventory
of Extremely Hazardous Substances as defined in 40 CFR part 355 Appendix A and Appendix B
with ranges (i.e., <10klbs, >10klbs and <100klbs, and so forth), and require resubmittals only if
there are significant changes.
G. E-Manifest Rule
The “Hazardous Waste Electronic Manifest Establishment Act” amended RCRA to
authorize a user fee-based system for implementing an electronic system for complying with the
RCRA manifest requirements for the transportation of hazardous waste.46 The User Fee
Proposed Rule was published on July 6, 2016, and its comment period expired on September 26,
2016.47 According to the proposed rule, EPA is proposing to charge TSDFs for use of its
46

Pub. L. No. 112–195.

47

81 Fed. Reg. 49072 (July 26, 2016).

 May 15, 2017
Page 20

electronic hazardous waste manifest system instead of charging generators who produce and
transport the waste.48 The July 2016 proposal would leave in place the general rule that an
electronic manifest may be used only when it is known that all waste handlers can participate
electronically, but create an exception to authorize the generator only to sign by hand and retain
a paper copy of the manifest signed by hand by the initial transporter for its records.49 The
proposal would require that all manifest corrections be submitted by TSDFs electronically,
regardless of whether the data undergoing correction arises from a paper or electronic manifest. 50
This proposed framework takes the general approach that the regulated community will
bear the costs and burdens of this program. This should not be the case. EPA is the one that
benefits most from this electronic system. The Department of Transportation is still requiring
paper copy of manifests. Therefore, regulated entities will need to submit both electronically and
in paper copy. EPA should be the one bearing the costs of the e-manifest program.
H. Cost/benefit analysis in rulemaking
In considering the cost of new rulemakings, EPA frequently underestimates the cost of a
new rule or conflates the benefits. Regulations can be adopted that do not fairly reflect their high
cost or marginal benefits to public health/environment. The FRRC recommends that EPA revise
the cost/benefit analysis methodology to ensure accuracy, uniformity, and fairness.
I. EPA Penalty Provisions and Policies
EPA environmental regulations impose “per day” penalties that recently have increased
significantly with newly enacted annual inflation adjustments.51 EPA inappropriately uses Civil
Penalty Policies that have never been subject to public notice/comment and do not include all
relevant factors, to calculate penalties for settlement of certain enforcement matters. Companies
can face exorbitant potential fines for violations that do not have any environmental impact, such
as recordkeeping errors. The regulated community is subject to Civil Penalty Policies that do not
properly consider all factors, may calculate excessive penalty amounts, and disqualify many
valid potential supplemental environmental projects in the penalty calculation. EPA should
review these penalty provisions and revise them, as appropriate. Additionally, EPA should
repeal the 2017 Civil Monetary Inflation Adjustment Rule and other related inflation adjustment
rules. Finally, EPA should repeal the Civil Penalty Policies,52 if appropriate, or revise them to
address substantive concerns and then issue the revised policies under proper administrative
public notice-and-comment procedures.

48

81 Fed. Reg. 49078.

49

81 Fed. Reg. 49100.

50

81 Fed. Reg. 49090.

51

82 Fed. Reg. 3633 (Jan. 12, 2017).

52

See, e.g., Amendments to the U.S. Environmental Protection Agency’s Civil Penalty Policies to Account for
Inflation (Effective August 1, 2016) (July 27, 2016), available at: https://www.epa.gov/sites/production/files/201701/documents/finalpenaltyinflationguidance.pdf (last accessed May 10, 2017).

 May 15, 2017
Page 21

IV.

Conclusion

The FRRC appreciates EPA’s consideration of these comments. We urge EPA to make
positive regulatory changes that reduce regulations that merely exist for their own sake and make
programmatic changes that get contaminated sites remediated and put back into productive use.
If you have any questions regarding these comments, please contact Tammy Helminski at (616)
742-3926
(thelminski@btlaw.com)
or
Michael
Scanlon
at
(317)
231-7387
(michael.scanlon@btlaw.com).
Respectfully submitted,

Tammy L. Helminski and Michael T. Scanlon
Counsel for the Federal Recycling and Remediation Coalition