Life After RCRA--It's More Than a Brownfields Dream

Life After RCRA—It's More Than a Brownfields Dream

Susan E. Bromm

Susan E. Bromm, an attorney, is the Deputy Director of U.S. Environmental Protection Agency's (EPA's) Office of Site Remediation Enforcement. She has held various positions within EPA involving Resource Conservation and Recovery Act (RCRA) and Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) responsibilities since 1980. The views expressed in this Dialogue are those of the author and do not necessarily represent the official position of EPA. The author wishes to thank her many colleagues at EPA who reviewed and provided expert advice on the content of this Dialogue.

[28 ELR 10031]

Conventional wisdom says that the Resource Conservation and Recovery Act (RCRA)¹ is an impediment to the reuse of brownfields.² Examination of a decade of experience, however, reveals that properties "captured by the net" of RCRA jurisdiction have gone on to new, productive, and economically viable reuse. Contrary to conventional wisdom, there is also a great potential for many more RCRA properties to do so.

Through the use of many examples, this Dialogue demonstrates that state and federal governments are willing to work with the owners of RCRA facilities to convert these sites into beneficially reused properties. Specifically, this Dialogue examines the perceived obstacles that RCRA poses to brownfields redevelopment, and explores the U.S. Environmental Protection Agency's (EPA's) efforts at addressing these obstacles. Redevelopment opportunities for RCRA-permitted facilities and for sites under RCRA corrective action orders, as well as opportunities for accelerating site cleanup through voluntary programs, are discussed. Although substantive opportunities to redevelop brownfields are available through state and federal programs, this Dialogue concludes that federal guidance outlining the procedural steps of converting brownfields to beneficially reused property would be useful.

The Relation Between RCRA and Brownfields

Brownfields may come under RCRA jurisdiction in two ways. First, cleanup requirements are statutorily imposed at brownfields that qualify as RCRA facilities. Properties used after July 26, 1982, for the treatment, storage or disposal of hazardous waste, as defined in the RCRA regulations,³ are under the jurisdiction of RCRA Subtitle C,⁴ and are required to obtain a RCRA permit.⁵ RCRA § 3004(u) mandates that RCRA permits address the cleanup of releases from all solid waste management units.⁶ EPA may, through an administrative or judicial order, also impose cleanup requirements at facilities with "interim status."⁷

Second, brownfields that were not previously thought of as traditional RCRA facilities can trigger RCRA jurisdiction by conducting cleanup activities. In the course of a cleanup, material meeting the regulatory definition of hazardous waste may be treated, stored, or disposed of on site. If this occurs, the property may become a RCRA facility and the RCRA regulatory regime, including the requirement to obtain a permit, generally applies.⁸ If the waste is promptly removed from the site, the remediator is regulated as a hazardous waste generator under RCRA, and the waste must be treated and disposed of according to RCRA requirements.⁹

EPA Efforts to Address RCRA Barriers to Cleanup

Industry has waged a relatively effective campaign to educate EPA and Congress on what it sees as the barriers [28 ELR 10032] RCRA poses to cleanup and brownfields redevelopment.¹⁰ The most frequently cited obstacles are the waste treatment requirements imposed by the land disposal restrictions (LDR) program,¹¹ the minimum technology requirements (MTRs) for land disposal units accepting hazardous waste,¹² and the requirement for a RCRA permit.¹³ Industry contends that these requirements, when applied to remediation situations, are impractical and expensive and provide minimal additional protection of human health and the environment.¹⁴ EPA has taken several actions to address these concerns. Nevertheless, because all these requirements are statutory, regulatory action can only produce limited relief.

One effort by EPA to mitigate the impact of RCRA on cleanups is the Corrective Action Management Unit (CAMU) Rule.¹⁵ This rule, by declaring that CAMUs are not land disposal units, allows remediation activity to occur on CAMUs without automatically triggering the LDR treatment requirements or the MTRs for treatment and disposal units.¹⁶ After its enactment, two environmental groups and a waste treatment industry group challenged the rule.¹⁷ In 1996, EPA sought public comment on a proposal to withdraw the rule.¹⁸ Recently, however, the Agency announced its intent to maintain the final CAMU rule as it was promulgated in 1993.¹⁹ Because the CAMU rule was challenged when it was first promulgated, the announcement that EPA intends to maintain the CAMU rule may prompt additional challenges.²⁰

In part, the decision to maintain the CAMU rule was triggered by the failure of another attempt at regulatory relief—the Hazardous Waste Identification Rule for contaminated media (HWIR-media).²¹ The HWIR-media proposal attempted to distinguish lower risk remediation waste (i.e., wastes generated during remediation activities that posed risks below a certain specified level) and remove it from the jurisdiction of RCRA Subtitle C. The proposal was designed to allow EPA and states greater flexibility in determining appropriate management requirements for remediation waste, and to result in less costly, though still protective, cleanups. The proposal also attempted to provide more flexible requirements for remediation waste remaining under Subtitle C. While some commenters felt that it did not go far enough in providing relief, others challenged EPA's proposed methodology for defining low risk waste and its legal authority to promulgate the rule.²²

Although EPA announced that it is abandoning its attempt to create, by regulation, a comprehensive regime for remediation waste,²³ it intends to promulgate as final rules, some "targeted fixes" also proposed as part of the HWIR-media package.²⁴ These "targeted fixes" include the promulgation of alternative treatment standards under the LDR program for contaminated soil, a streamlined permitting system for remediation activities, and an LDR and MTR exemption for temporary storage piles of remediation waste.²⁵ While not as comprehensive as the HWIR-media proposal, these revisions are expected to result in significant cost savings for cleanups.²⁶

EPA's difficulties in trying to fix statutory problems through regulatory changes have led the Administration to support legislative reform to provide more flexibility for low risk remediation waste.²⁷ Attempts at this reform in the 104th Congress failed to produce legislative changes,²⁸ and to date no bills addressing this issue have been introduced in the 105th Congress. The Administration has held a series of stakeholder meetings to discuss issues surrounding the reform, but has not gone beyond this in proactively promoting legislative change.²⁹

Despite concerns that RCRA presents barriers to cleanup, it is important to note that the substantive RCRA regulations controlling the corrective action (cleanup) program are extremely general and nonprescriptive. The current corrective action regulations are simply a codification of the statutory mandate of RCRA § 3004(u) and (v).³⁰ In 1990, EPA proposed extensive regulations, called the Subpart S rule, to control the process and result of cleanups.³¹ The proposed rule set forth a detailed series of steps for the investigatory [28 ELR 10033] and remedy selection phases of the cleanup process. Due to concerns that this process was overly rigid, EPA published an Advanced Notice of Proposed Rulemaking to seek comments on approaches that de-emphasized the procedural aspects of the proposed rule, and instead provided flexibility on how cleanup is achieved.³² Because EPA has yet to take further regulatory action on Subpart S, the cleanup program remains largely guided by policy, guidance, and individual state regulatory schemes.³³

EPA's Approach to Cleanup

EPA emphasizes a "worst sites first" approach to cleanup under RCRA. Virtually all RCRA facilities have been assessed and prioritized under a scheme called the National Corrective Action Prioritization Strategy (NCAPS).³⁴ EPA guidance indicates that limited government oversight resources should be used to address facilities that rank as high priority sites under NCAPS.³⁵

"Worst sites first" seems to be a sensible scheme for prioritizing the use of limited governmental resources. It can, however, pose a problem for facility owners who would like to expedite cleanup for other reasons, such as for sale or redevelopment. There are two possible solutions to this dilemma. First, the NCAPS system allows some flexibility for elevating the priority of a site based on factors other than risk. Thus, a facility owner might be able to persuade the appropriate oversight agency to work on the site, even if it did not score high under the NCAPS ranking system.³⁶ A second and often more realistic alternative is to clean up the site through a voluntary cleanup program.³⁶

Addressing RCRA Brownfields Under Voluntary Programs

State Voluntary Programs

To date, 33 states and territories are authorized for corrective action under RCRA. In these states, state cleanup programs operate in lieu of the federal RCRA program.³⁷ In addition, many other states maintain active cleanup programs that are not authorized under RCRA. In fact, all states have some sort of order authority that they can use to compel cleanup.³⁸

In addition, 35 states currently have voluntary cleanup programs.³⁹ Although these programs vary from state to state, there are some common features. For instance, most state voluntary programs have been in existence less than five years.⁴⁰ The programs also commonly rely on fees, paid by the party conducting the cleanup, to fully or partially fund the program.⁴¹ In addition, most provide either a full or conditional release from liability under state law or a certification of cleanup completion at the end of the process, a valuable commodity to a developer seeking to reuse the property.⁴²

States vary in the types of sites they allow to participate in their voluntary programs. Some exclude sites that present high risks (e.g., sites that might qualify for listing on the national priorities list).⁴³ Others exclude sites that are already under a permit or order that imposes cleanup requirements.⁴⁴ Still, others restrict the scope of the program to abandoned sites.⁴⁵ States also vary in the level of monitoring and oversight they provide during the cleanup process, and the degree to which they mandate public participation in decisions made regarding the cleanup.⁴⁶ State voluntary programs frequently give the remediating party flexibility to select a type of cleanup based on future land use. For instance, if future use is assumed to be industrial rather than residential, sites can be cleaned up to less stringent standards.⁴⁷

While state voluntary cleanup programs generally provide state liability releases or conditional assurances of no further action, some developers and lenders remain [28 ELR 10034] concerned about the potential for federal liability under RCRA or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).⁴⁸ Therefore, some EPA regional offices and states have entered into memoranda of agreement (MOAs) that define state and federal roles and responsibilities, and describe the potential for federal action under CERCLA at sites cleaned up under the state's voluntary program.⁴⁹ On September 9, 1997, EPA published for comment a draft Guidance for Developing Superfund Memoranda of Agreement Language Concerning State Voluntary Cleanup Programs.⁵⁰ The draft guidance suggested MOA language that outlined the limited situations in which federal action under CERCLA would be warranted at lower risk sites addressed under state voluntary cleanup programs.⁵¹

Based on comments received, EPA announced on November 26, 1997, that it was withdrawing the September 9 draft guidance.⁵² Nevertheless, EPA also announced that the existing MOAs with 11 states remain in effect, and that new MOAs are still a good way to encourage effective programs. According to EPA, new MOAs should be entered into in accordance with an interim policy from November 1996.⁵³ This interim policy identifies six baseline criteria that EPA uses to evaluate the adequacy of state voluntary programs, and suggests model comfort language for inclusion in MOAs negotiated with states. Unlike the September 9 draft guidance, the interim guidance does not specifically address its applicability to sites regulated under RCRA.⁵⁴ Recently, the state of Illinois and EPA's Region 5 office entered into a memorandum of understanding (MOU) designed to encourage voluntary cleanup and establish how the Illinois program intersects with RCRA. The MOU states,

Although nothing in this MOU constitutes a release from liability under applicable Federal law, generally Region 5 does not anticipate taking any federal environmental clean-up action under RCRA or TSCA [the Toxic Substances Control Act]⁵⁵ at a site or portion thereof where the Illinois EPA has approved a remediation as having met the requirements of 35 Ill. Adm. Code 742 [through a "No Further Remediation letter" issued pursuant to the state's voluntary cleanup program].⁵⁶

The MOU creates an exception to this general principle "if Region 5 determines that there may be an imminent and substantial endangerment to public health, welfare or environment at the site or portion thereof."⁵⁷ This is the only MOA or MOU between an EPA regional office and a state that specifically addresses federal actions under RCRA at sites cleaned up under the state's voluntary program.

One example of the use of voluntary cleanup to accelerate the remediation of a RCRA facility is a Marathon Oil cleanup that occurred in Robinson, Illinois. Marathon Oil was allocated significant funds by its parent company to conduct a cleanup at the site. However, the funds came with the caveat that they be used within one year. Instead of following the normal investigatory stages of RCRA corrective action, Marathon proposed to excavate five waste management units, including a large surface impoundment, and to treat the excavated material in a state-approved CAMU. Confirmatory sampling was done to assure that cleanup objectives were achieved. As a result, a significant cleanup was accomplished in just 18 months, and the property was freed up for more productive use.

In 1994, EPA proposed the post-closure rule, which could further enhance state voluntary programs.⁵⁸ Under this proposal, closed or closing RCRA treatment, storage, or disposal facilities (TSDFs) could be addressed under an "alternative mechanism" in lieu of a post-closure permit. If this rule is promulgated as final, states that adopt the rule could allow RCRA TSDFs that are no longer actively managing hazardous waste to clean up under voluntary programs without obtaining a post-closure permit. In addition, state voluntary programs may apply at TSDFs that clean close or close by removal (i.e., tanks and surface impoundments where all waste is removed from the regulated unit at closure), and that do not have a RCRA permit obligation.

Federal Voluntary Programs

EPA's Region 1 office, located in Boston, is conducting a voluntary RCRA corrective action program at the federal level.⁵⁹ The program, premised on companies' commitment to meet defined cleanup goals, attempts to accelerate cleanup at high priority RCRA TSDFs. Typically, cleanup of these sites is addressed under an order or permit. Under the Region 1 approach, however, these sites can volunteer to undertake a cleanup without a formal legal mechanism, [28 ELR 10035] and with very little paperwork. Cleanup then proceeds with minimal governmental oversight until selection of the final remedy.⁶⁰

The William Prym, Inc. site, a closed facility in Dayville, Connecticut, is a participant in the Region 1 voluntary cleanup program. The site, originally a woolen mill, became a manufacturing facility of needles and other implements for the textile industry in the late 1800s. The site owners entered a voluntary agreement with EPA Region 1, and have already conducted two interim measures that removed metal contaminated sediments from the dam tailrace and from an on-sitepond. Cleanup is being conducted to facilitate a search for a purchaser of the property.

The General Dynamics Midway facility is another example of a voluntary cleanup in Region 1. The site was a support facility for the large General Dynamics Eastern Point submarine construction facility located on the Thames River in Groton, Connecticut. General Dynamics wished to sell the site because it was no longer being utilized. General Dynamics' commitment to addressing existing contamination was integral to the sale of the property. EPA agreed to enter a voluntary cleanup agreement with General Dynamics for this site, if General Dynamics would also commit to initiate an investigation and cleanup of its Eastern Point facility. A manufacturing operation is now located at the facility.

Cytec Industries in Stamford, Connecticut, a 35-acre chemical research and manufacturing facility, is an example of a voluntary effort to clean up a low priority site. Although the site is a low priority for corrective action, Region 1 is providing support on a voluntary effort to investigate and clean up all releases on site to facilitate the sale of a portion of the currently underutilized facility for a planned shopping plaza development. Investigation of the site is largely complete. In addition, a fire training pit has already been remediated through excavation of contaminated soils. Remediation issues that remain on the table include the management of low level volatile organic compound (or VOC) contamination of on-site groundwater (natural attenuation will be the likely remedy), and the management of scattered occurrences of low level polycyclic aromatic hydrocarbons contamination in soils (which appear to be derived from construction debris disposed of on site).

Redevelopment Opportunities for RCRA-Permitted Facilities

Redevelopment opportunities are not limited to sites undergoing voluntary cleanups. Sites that are conducting RCRA corrective action under a permit can also be reused for new, economically productive uses. This reuse can be accomplished by either the original owner and permit holder, or by transferring the property to a new owner. One example of the sale and reuse of portions of a RCRA-permitted facility is the Tektronix facility in Beaverton, Oregon. This facility, in use since 1957, is a 300-acre industrial park used to develop and manufacture electronic instruments and systems. Hazardous wastes are generated from research and development operations, as well as from manufacturing processes at the facility. In July 1990, the Oregon Department of Environmental Quality (DEQ) and EPA issued Tektronix a permit for storage of hazardous waste in containers and tanks. The permit also addressed post-closure care and corrective action for parts of the facility, such as a former wastewater treatment unit. Even though hazardous waste management activities are confined to only parts of the parcel, the entire 300-acre parcel qualifies as a RCRA facility, and is covered by the permit.

Some time after issuance of the original permit, a light rail line was constructed through the facility as the result of a major mass transit project. This, and some local zoning changes, created an interest in redeveloping some of the land covered by the permit. RCRA regulations allow for permit modifications based on changed circumstances or new information.⁶¹ Accordingly, in October 1995, EPA and the Oregon DEQ proposed to modify Tektronix's permit to allow parcels to be sold off and removed from the permit, while assuring that necessary assessment and cleanup continued.⁶² As modified, the permit requires public notice and an opportunity for comment. In addition, Tektronix must complete a RCRA Facility Assessment (RFA) for any parcel to be sold. Based on the results of the RFA, EPA and the DEQ will classify the parcel as either clean or needing further investigation and/or corrective action. To avoid delaying a pending transaction, the agencies agreed to make this determination within 20 days. For parcels classified as clean, Tektronix will request a Class 1 permit modification⁶³ to remove the parcel from its RCRA facility, and thus from its permit. For parcels classified as needing further investigation and/or corrective action, Tektronix must: (1) obtain an access easement as a condition of sale of the land, (2) complete any needed investigation and cleanup, and (3) waive its right to assert that Tektronix made "best efforts" under RCRA § 3004(v)⁶⁴ to gain access to the property to complete off-site cleanup. The modified permit authorizes the sale of contaminated parcels that were originally subject to the permit, but holds Tektronix (and not the new owners) liable for further corrective action until a "no further action" determination is made. It also establishes requirements for financial assurance for conducting all necessary corrective action.⁶⁵

This example demonstrates that brownfield redevelopment can occur at permitted RCRA sites through creative use of permit modification procedures and by redefining the boundaries of the RCRA facility regulated by the permit. Furthermore, both the public participation and the financial responsibility requirements were important ingredients of this successful effort.

Redevelopment Opportunities for Sites Under RCRA Orders

Similarly, it is possible to clean up property for redevelopment under a RCRA administrative order. One example is the Lake Success Business Park, a 435-acre property in an [28 ELR 10036] economically depressed area of northern Bridgeport, Connecticut. The Remington Arms Company owned and operated the property for production, testing, storage, and disposal of small and large caliber ammunition and powders until 1989 when most operations ceased. Subsequently, the property was transferred to the current owner, Sporting Goods Properties, Inc. Sporting Goods Properties plans to redevelop the property as a business park.

In 1990, EPA and Remington Arms entered an administrative consent order, pursuant to RCRA § 3008(h).⁶⁶ This order required Remington Arms, and now Sporting Goods Properties, to investigate areas where discharges of hazardous waste may have occurred, and to propose strategies for cleanup in areas where contamination presents an unacceptable risk to human health and the environment. EPA designed a phased approach to remediation at the facility. Contaminated soils will be addressed in the first remedy phase, and any remaining site contamination (i.e., groundwater, wetlands, and lake and stream sediments) will be addressed in subsequent phases. This phased approach accommodates redevelopment plans for the property, as development will be able to proceed on remediated soil areas, while additional characterization and, if necessary, remediation proceeds on other contaminated media.

Government Efforts to Address Liability Barriers

Efforts Addressing CERCLA Liability

Concerns regarding potential liability under CERCLA also impact the redevelopment of brownfields. In order to protect themselves from CERCLA liability, developers and bankers may steer away from contaminated properties, and opt to use "greenfields" for development projects instead. To quell lenders' concerns, EPA issued the lender liability rule in 1992 to define how EPA would exercise its discretion in determining the liability of lenders as potentially responsible parties in CERCLA actions.⁶⁷ The D.C. Circuit, finding that EPA lacked the statutory authority to issue the rule, overturned the rule in 1994.⁶⁸ EPA later announced that it would consider the substance of the rule as policy.⁶⁹ Ultimately, Congress enacted into law the basic precepts of the overturned rule.⁷⁰

In 1995, EPA issued its revised prospective purchaser agreement (PPA) guidance, which also helps to alleviate concerns over potential CERCLA liability.⁷¹ This guidance expands the circumstances under which the federal government can enter into an agreement with purchasers of contaminated property. According to the guidance, EPA may enter into an agreement that defines the limits of CERCLA liability for the purchaser of contaminated property in exchange for the purchaser's agreement to reimburse the government for past cleanup, or to perform some portion of the future cleanup.⁷² The revised guidance significantly changes the range of proposed agreements that the government can consider. Now, even in circumstances where the direct benefit to EPA is small (i.e., the reimbursement of cleanup costs or the performance of cleanup work), the government can enter into a PPA if there are significant potential benefits to the surrounding community. In addition, a model PPA document, published in conjunction with the guidance, helps to streamline negotiations and facilitate parties entering into these agreements.⁷³

EPA's "comfort letter" policy, issued on November 8, 1996, also addresses the concerns over potential CERCLA liability.⁷⁴ The policy consists of four sample letters that EPA Regional offices are to use in responding to commonly received inquiries regarding brownfield properties. These letters do not give "no action" assurances, but rather provide information on the current status of a property that helps developers understand the likelihood of federal interest in the site.

Efforts to Address RCRA Liability

Despite the considerable attention given to concerns over CERCLA liability, EPA has yet to issue any analogous guidance under RCRA. One area currently being explored by EPA is the possibility of negotiating PPAs for sites subject to RCRA corrective action. A workgroup is currently looking into liability barriers to redevelopment of facilities under regulatory regimes other than CERCLA. The workgroup is considering whether covenants not to sue or other mechanisms are appropriate to help remove RCRA liability barriers to resale and redevelopment.

The recently proposed sale of the Bethlehem Steel Shipyard in Baltimore, Maryland, is an excellent example of how a PPA could be used for a site subject to RCRA corrective action. Before the proposed sale, Bethlehem Steel negotiated with EPA and Maryland a consent decree committing it to perform a corrective measures study of its Baltimore facility. After the consent decree was lodged with the court, and public comment had closed, but before the decree became final, Bethlehem Steel entered into negotiations to sell the Sparrows Point Shipyard portion of the facility. In late April 1997, a prospective purchaser requested that EPA and Maryland provide him a covenant not to sue under RCRA and CERCLA by June 30, 1997, the proposed date for the shipyard sale. Although the sale did not transpire in the long run, both the state and federal governments were willing to work with the parties.⁷⁵ This willingness was bolstered by the importance to the local economy of keeping the business running, because EPA [28 ELR 10037] and Maryland were informed that 900 existing jobs were in jeopardy, and that an additional 1,100 jobs might be created if the sale took place. In addition, both the state and federal governments desired to keep the party responsible for implementing the corrective measures study under RCRA on track.

Conclusion

Concerns over statutory and regulatory barriers may be leading property owners to mothball RCRA facilities. To some extent, this is understandable. The barriers posed by RCRA have received a significant amount of attention. Site owners faced with the seemingly complex web of substantive and procedural RCRA requirements may simply be overwhelmed. Concerns about the time it takes to move through RCRA procedural steps, such as permit modifications, may lead site owners to conclude that liability issues cannot be dealt with in a sufficiently timely manner to facilitate real estate transactions. Hopefully, some of the examples provided in this Dialogue will help dispel these concerns. These successes can be replicated throughout the country. EPA and states have shown a willingness to work with site owners in order to deal with timing, procedural, and other constraints.

State and federal efforts to encourage voluntary acceleration of cleanup at RCRA sites are a major step in facilitating the reuse of property. Still, federal guidance that provides site owners with a road map for wading through the procedural steps of converting RCRA brownfields into beneficially reused property would be extremely helpful. And the public would profit, both environmentally and economically, from accelerated cleanup and reuse of RCRA facilities.

1. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012.

2. EPA defines "brownfields" as properties that are abandoned, idled, or under-used industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination. U.S. EPA, BROWNFIELDS INFORMATION MANUAL (1997).

3. See 40 C.F.R. § 261 (1997).

4. 42 U.S.C. §§ 6921-6939(e), ELR STAT. RCRA §§ 3001-3023.

5. See 40 C.F.R. § 264.90.

6. See 42 U.S.C. § 6924(u), ELR STAT. RCRA § 3004(u).

7. See id. § 6928(h), ELR STAT. RCRA § 3008(h). All facilities that were treating, storing, or disposing of hazardous waste on November 19, 1980, were required to file a "Part A" permit application with EPA. Those that did were conferred interim status, allowing them to operate pending receiving a final permit. EPA has broadly interpreted RCRA § 3008(h) to apply to facilities that have, had, or should have had interim status. Memorandum from J. Winston Porter, EPA Assistant Administrator, Office of Solid Waste and Emergency Response, and Courtney M. Price, EPA Assistant Administrator, Office of Enforcement and Compliance Monitoring, on Interpretation of Section 3008(h) of the Solid Waste Disposal Act, OSWER Directive No. 9901.1, to EPA Regional Administrators, Regional Counsels, Regional Waste Management Division Directors and Director, National Enforcement Investigation Center (Dec. 16, 1985). See also United States v. Environmental Waste Control, 710 F. Supp. 1172, 20 ELR 20035 (N.D. Ind. 1989); United States v. Indiana Woodtreating Corp., 686 F. Supp. 218, 18 ELR 21478 (S.D. Ind. 1988).

8. See supra text accompanying notes 3-4.

9. If waste is accumulated for 90 days or less and in accordance with specified standards, a "storage facility" permit is not required and the accumulator is considered to be a generator only. 40 C.F.R. § 262.34.

10. See, e.g., Hearings on H.R. 2500 Before the Subcomm. on Commerce, Trade and Hazardous Materials of the House Comm. on Commerce, 104th Cong. (July 20, 1995) (testimony of Don R. Clay, President, Don Clay Associates, Inc.); Steelgram from Andrew G. Sharkey III, President and CEO, American Iron and Steel Institute, on RCRA Corrective Action Legislation and Brownfield/Voluntary Clean-up Legislation, to Congressional Steel Caucus, U.S. House of Representatives (Mar. 11, 1996); RCRA MULTI-INDUSTRY COALITION PAPER, A CASE FOR LEGISLATIVE ACTION: REMOVING RCRA IMPEDIMENTS TO CLEAN-UP (1997).

11. The LDR program is mandated by 42 U.S.C. § 6924(d)-(m), ELR STAT. RCRA § 3004(d)-(m). The LDR regulations are codified at 40 C.F.R. § 268.

12. The MTRs are mandated by 42 U.S.C. § 6924(o), ELR STAT. RCRA § 3004(o). The MTR regulations are codified at 40 C.F.R. § 264.

13. See 42 U.S.C. § 6925, ELR STAT. RCRA § 3005.

14. See supra note 10.

15. 40 C.F.R. § 264.552 (1993).

16. See id.

17. The Environmental Defense Fund, the Natural Resources Defense Council, and the Environmental Technology Council challenged the CAMU rule in 1993, but suspended their suit until EPA finalized the Hazardous Waste Identification Rule. Environmental Defense Fund v. EPA, Nos. 93-1316, -1322 (D.C. Cir. filed Oct. 11, 1994) (joint motion staying suit).

18. 61 Fed. Reg. 18780, 18829 (Apr. 29, 1996).

19. See EPA Abandons Bright Line Proposal, Settles for Limited RCRA Cleanup Reform, Daily Env't Rep. (BNA), Sept. 11, 1997, at AA-2 [hereinafter RCRA Cleanup Reform].

20. See id. (predicting that CAMU rule will be challenged).

21. 61 Fed. Reg. 18780.

22. The comments are contained in EPA regulatory docket number F-96-MHW-FFFFF (Requirements for Management of Hazardous Contaminated Media (HWIR-Media) Rule), and are available for viewing at the RCRA Information Center, 1235 Jefferson Davis Hwy., 1st Fl., Arlington, VA 22202.

23. See RCRA Cleanup Reform, supra note 19, at AA-1.

24. See id.

25. See id.

26. See OFFICE OF SOLID WASTE, U.S. EPA, ECONOMIC ASSESSMENT OF THE PROPOSED HAZARDOUS WASTE IDENTIFICATION RULE FOR CONTAMINATED MEDIA (1996) (available for viewing at the RCRA Information Center, 1235 Jefferson Davis Hwy., 1st Fl., Arlington, VA 22202.

27. See BILL CLINTON AND AL GORE, REINVENTING ENVIRONMENTAL REGULATION 20 (1995).

28. H.R. 2500, 104th Cong. (1995).

29. See RCRA Cleanup Reform, supra note 19, at AA-2.

30. 42 U.S.C. § 6924(u)-(v), ELR STAT. RCRA § 3004(u)-(v); 40 C.F.R. § 264.101.

31. Corrective Action for Solid Waste Management Units at Hazardous Waste Management Facilities (Subpart S proposal), 55 Fed. Reg. 30798 (July 27, 1990).

32. 61 Fed. Reg. 19432 (May 1, 1996). This Advanced Notice of Proposed Rulemaking is currently being used by the corrective action program as guidance.

33. Some of the major policies and guidance include: Memorandum from Steven A. Herman, EPA Assistant Administrator, Office of Enforcement and Compliance Assurance, and Elliott P. Laws, EPA Assistant Administrator, Office of Solid Waste and Emergency Response, on Coordination between RCRA Corrective Action and Closure and CERCLA Site Activities, to RCRA/CERCLA National Policy Managers (Sept. 24, 1996); U.S. EPA, OSWER Directive No. 9902.3-2A, RCRA CORRECTIVE ACTION PLAN (May 1994); Memorandum from Bruce M. Diamond, Director, Office of Waste Programs Enforcement, on Final RCRA 3008(h) Model Consent Order, to Waste Management Division Directors and Regional Counsel (Dec. 15, 1993); U.S. EPA, OSWER Directive No. 9902.7, CORRECTIVE ACTION OVERSIGHT (Jan. 1992); U.S. EPA, OSWER Directive No. 9902.6, GUIDANCE ON RCRA CORRECTIVE ACTION DECISION DOCUMENT, THE STATEMENT OF BASIS FINAL DECISION, AND RESPONSE TO COMMENTS (Feb. 1991); U.S. EPA, Pub. No. 530-SW-89-031, RCRA FACILITY INVESTIGATION GUIDANCE (May 15, 1989); U.S. EPA, OSWER Directive No. 9502.00-05, RCRA FACILITY ASSESSMENT GUIDANCE (Oct. 9, 1986).

34. See Memorandum from Richard J. Guimond, Assistant Surgeon General, U.S. Public Health Service, EPA Acting Assistant Administrator, Office of Solid Waste and Emergency Response, on FY 94 RCRA Implementation Plan, OSWER Directive No. 9420.00-09, to EPA Regional Waste Management Division Directors, at ch. 2 (Apr. 2, 1993) (discussing NCAPS scheme).

35. See id.; Memorandum from Elliott P. Laws, EPA Assistant Administrator, Office of Solid Waste and Emergency Response, on FY 95 RCRA Implementation Plan (RIP), to EPA Waste Management Division Directors 18 (May 19, 1994); Memorandum from Timothy Fields Jr., EPA Acting Assistant Administrator, Office of Solid Waste and Emergency Response, on FY 1998-99 Consolidated OSWER Guidance, to EPA Regional Administrators 12 (Apr. 10, 1997).

36. See, e.g., text in section Federal Voluntary Programs in this Dialogue (discussing cleanup of Cytec Industries site).

37. See 42 U.S.C. § 6926, ELR STAT. RCRA § 3006 (authorizing state hazardous waste programs).

38. See ENVIRONMENTAL LAW INSTITUTE, AN ANALYSIS OF STATE SUPERFUND PROGRAMS: 50-STATE STUDY, 1995 UPDATE 59-62 (1996).

39. See GENERAL ACCOUNTING OFFICE REPORT TO CONGRESS, GAO/RCED-97-66, STATE VOLUNTARY PROGRAMS PROVIDE INCENTIVES TO ENCOURAGE CLEANUPS 5 (1997) [hereinafter GAO REPORT]. For a description of Maryland's program, see Shari Wilson, Maryland's New Voluntary Clean-up Program, NAT'L ENVTL. ENFOR. J., July 1997, at 3. Many states have brochures describing their programs and make these available on the Internet. See CENTER FOR POLICY ALTERNATIVES, RESOURCE BLUEPRINT FOR CALIFORNIA LAND RECYCLING, app. G (1997) (listing websites for home pages of state environmental agencies); see also id. at app. C (comparing state voluntary cleanup programs).

40. See GAO REPORT, supra note 39, at 5.

41. See id.

42. See id.

43. See id.

44. See id.

45. See id.

46. See id. at 6.

47. See id.

48. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

49. Currently, the following states have MOAs with EPA regarding their voluntary cleanup program: Colorado, Delaware, Illinois, Indiana, Maryland, Michigan, Minnesota, Missouri, Rhode Island, Texas, and Wisconsin.

50. 62 Fed. Reg. 47495 (Sept. 9, 1997).

51. See id. For sites meeting the criteria contained in the draft guidance, the language suggested in the guidance stated that EPA would not exercise cost recovery authority under CERCLA, and that EPA did not generally anticipate taking CERCLA removal or remedial actions at these sites, except in limited, delineated circumstances.

52. Memorandum from Timothy Fields Jr., EPA Acting Assistant Administrator, Office of Solid Waste and Emergency Response, and Steven A. Herman, EPA Assistant Administrator, Office of Enforcement and Compliance Assurance, on Withdrawal of Proposal: Final Draft Guidance for Developing Superfund Memoranda of Agreement Concerning State Voluntary Cleanup Programs, to EPA Regional Administrators (Nov. 26, 1997).

53. Memorandum from Elliott P. Laws, EPA Assistant Administrator, Office of Solid Waste and Emergency Response, and Steven A. Herman, EPA Assistant Administrator, Office of Enforcement and Compliance Assurance, on Interim Approaches for Regional Relations With State Voluntary Cleanup Programs, to Superfund National Policy Managers (Nov. 14, 1996).

54. Under the September 9 draft guidance, sites that were "generator only" status under RCRA were eligible for inclusion in MOAs. 62 Fed. Reg. at 47498.

55. 15 U.S.C. §§ 2601-2692, ELR STAT. TSCA §§ 2-30. Among other things, TSCA regulates the cleanup of polychlorinated biphenyls (or PCB) contamination.

56. Memorandum of Understanding Between the Illinois EPA and the U.S. EPA Region 5, on the Illinois Site Remediation Program, the Illinois Tiered Approach to Corrective Action Objectives, and the Environmental Remediation Programs Administered by the Region 5 Waste, Pesticides, and Toxics Division under RCRA and TSCA, signed by May A. Gade, Director, Illinois EPA, and David A. Ullrich, Acting Regional Administrator, U.S. EPA, Region 5 (June 1997) (copy on file with author).

57. Id.

58. 59 Fed. Reg. 55778 (Nov. 8, 1994) (post-closure rule).

59. See JANET E. ROBINSON & GUY W. VAILLANCOURT, VOLUNTARY RCRA CORRECTIVE ACTION: AN OPPORTUNITY FOR INDUSTRY POLLUTION ENGINEERING 56 (1997) (describing Region 1's program and discussing considerations for sites contemplating entering the program).

60. Personal communication with Matt Hoagland, Chief, RCRA Corrective Action Section, EPA Region 1 (Oct. 16, 1997).

61. See Modification, Revocation and Reissuance or Termination of Permits, 40 C.F.R. § 124.5 (1996).

62. See Oregon Dep't of Envtl. Quality, Notice of Intent to Modify Hazardous Waste Permit at Tektronix, Inc. and attached fact sheet (Oct. 30, 1995) (on file with author).

63. See 40 C.F.R. § 270.42 (1996).

64. 42 U.S.C. § 6924(u), ELR STAT. RCRA § 3004(u).

65. See Oregon Dep't of Envtl. Quality, supra note 62, at 4.

66. 42 U.S.C. § 6928(h), ELR STAT. RCRA § 3008(h).

67. Rule on Lender Liability Under CERCLA, 40 C.F.R. § 300.1100 (1992).

68. Kelley v. EPA, 15 F.3d 1100, 24 ELR 20511 (D.C. Cir. 1994).

69. Lender Policy, 60 Fed. Reg. 63517 (Dec. 11, 1995).

70. See The Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996, Subtitle E of the Omnibus Appropriations Act of FY 1997, Pub. L. No. 104-208, 110 Stat. 3009.

71. See Announcement and Publication of Guidance on Agreements With Prospective Purchasers of Contaminated Property and Model Prospective Purchaser Agreement, 60 Fed. Reg. 34792 (July 3, 1995).

72. See id. at 34793.

73. See id. at 34795.

74. Policy on the Issuance of Comfort/Status Letters, 62 Fed. Reg. 4624 (Jan. 30, 1997).

75. On August 1, 1997, Bethlehem Steel issued a press release announcing the termination of the negotiations for the sale of the shipyard and expressing its appreciation for "all of the efforts of the many federal, state and local officials and agencies in their attempts to help the parties resolve some … complex and significant issues." On August 29, 1997, Bethlehem Steel announced that it had reached an agreement with another party on the sale of the shipyard.