Disposal and Remediation Options Under the PCB Mega Rule

James A. Vroman

Editors' Summary: On June 29, 1998, EPA published its PCB Mega Rule, a comprehensive revision of TSCA regulations that govern the remediation and disposal of PCB-contaminated material. The PCB Mega Rule affords the regulated community the option of remediating such material under self-implementing provisions or developing risk-based site-specific remedial measures that generally require Agency approval.

This Article examines the PCB Mega Rule, focusing particular attention on the provisions that address the disposal of PCB-contaminated waste resulting from spills and similar events and on the self-implementing provisions that address the remediation of PCB-contaminated porous surfaces. The Article compares the regulations applicable to such niaterials both before and after the promulgation of the PCB Mega Rule and concludes with an evaluation of the Mega Rule's benefits and shortcomings.

Mr. Vroman is a partner at the Chicago law firm of Jenner & Block. For the last 13 years, he has concentrated his practice in environmental law. He received his J.D. from the University of Illinois in 1977.

[29 ELR 10459]

With almost no fanfare and little advance notice, the U.S. Environmental Protection Agency (EPA) on June 29, 1998, published its regulations on the disposal of polychlorinated biphenyls (PCBs), commonly known as the PCB Mega Rule.¹ The PCB Mega Rule is a substantial and comprehensive revision of the regulations under the Toxic Substances Control Act (TSCA),² which govern the remediation and disposal of PCB-contaminated material. The promulgation of the PCB Mega Rule presented the regulated community with options and alternatives for the treatment and disposal of PCB-contaminated media not available previously under the regulations. A responsible party may now remediate such media under the default, or "self-implementing," measures set forth in the regulations, or may develop risk-based site-specific remedial measures, which generally require the Agency's approval before implementation.

When EPA published the proposed PCB Mega Rule for public notice and comment in December 1994, it received voluminous comments.³ Moreover, interested parties submitted many suggested changes and modifications to the rule.⁴ The Agency responded to many of the comments and suggestions and, in doing so, included in the final version of the PCB Mega Rule a number of changes from the proposed rule, as well as several new provisions. Among the new or modified provisions are two that merit analysis: (1) the provisions that address the disposal of "PCB remediation waste"⁵; and (2) the self-implementing regulations on remediating PCB-contaminated porous surfaces, such as concrete walls and floors.⁶

This Article explores the expanded flexibility under the PCB Mega Rule to dispose of PCB remediation waste and identifies a number of disposal options now available under the rule as well as some disposal questions the rule raises. The Article also examines the provisions on remediating porous, typically concrete, surfaces and contends that risk-based remedial alternatives should be available to parties who must clean up such surfaces.

The Disposal of PCB Remediation Waste

Before the promulgation of the PCB Mega Rule, the disposal options available to a party remediating a PCB-contaminated site were severely limited. The most severe limitation on the disposal of PCB-containing media resulted from the application of the "anti-dilution" provision of the regulations (the Anti-Dilution Rule), which was included in [29 ELR 10460] the original regulations to eliminate any incentives a party may have to dilute PCB-containing media to qualify for a less expensive disposal or treatment option.⁷ This provision imposed an assumption that the PCB concentration in a contaminated medium, such as soil, was the concentration of PCBs in the source of the release regardless of the actual PCB concentration in the soil a party had identified for disposal. Accordingly, under the Anti-Dilution Rule a party responsible for contaminated soil with an actual PCB concentration, for example, of 10 parts per million (ppm) would have to incur the expense of incinerating the soil if the source of the released PCBs had a PCB concentration in excess of 500 ppm. Another party, however, could send similarly contaminated soil to a municipal landfill if the source of the PCB contamination was unknown, or, if known, the source had a PCB concentration less than 50 ppm.⁸

The unfairness of the Anti-Dilution Rule was manifest. The treatment or disposal option a party faced was not determined by the actual risk the PCB-contaminated media posed to the environment but by the PCB concentration in the source of the release, often an arbitrary and, sometimes, fortuitous circumstance. As a result, the regulated community repeatedly objected to the rule's application, and the Agency was receptive to these objections. The Agency, for example, as a matter of policy, agreed not to impose the Anti-Dilution Rule at Superfund sites with PCB-contaminated soil. With respect to Comprehensive Environmental Response, Compensation, and Liability Act (CER-CLA) sites, the Agency explained:

Cleanup levels and technologies should not be selected based on the form and concentration of the original PCB material spilled or disposed of at the site prior to EPA's involvement (i.e., the anti-dilution provision of the PCB rules should not be applied). Because EPA comes to a site under CERCLA after the pollution has already occurred, and is acting under statutory mandate to select a proper cleanup level (regardless of who caused the pollution and who will clean it up), EPA is not subject to the anti-dilution provision at CERCLA sites when it selects a remedy.⁹

The Agency also recognized the patent unfairness of the Anti-Dilution Rule when it drafted the Mega Rule. Although the PCB Mega Rule did not eliminate the anti-dilution provision, it did severely restrict its application with the use of variances.¹⁰ In its explanation of its use of variances to restrict the rule's application, the Agency implicitly acknowledged the Anti-Dilution Rule's chilling impact on the remediation of PCB-contaminated sites: "In finalizing several variances from the Anti-Dilution provision, EPA is simply recognizing that where PCBs have already been released, the critical disposal issue is to mitigate the damage from the release."¹¹

Apart from the restrictions imposed on disposal options that resulted from the application of the Anti-Dilution Rule, the pre-Mega Rule regulations set forth a fairly restrictive regiment for the disposal of PCB-contaminated soil. Specifically, the regulations provided that (1) soil contaminated at a concentration of less than 10 ppm (or, in some cases, 25 ppm) could be disposed of in a municipal landfill, or left on site with a cover or cap¹²; (2) soil contaminated in excess of a concentration of 10 ppm (or, in some cases, 25 ppm) up to 50 ppm had to be disposed of at a Resource Conservation and Recovery Act (RCRA) Subtitle C landfill¹³; (3) soil contaminated at a concentration equal to or greater than 50 ppm and up to 500 ppm typically had to be disposed of at a "TSCA qualified" landfill¹⁴; and (4) soil contaminated at a concentration in excess of 500 ppm had to be incinerated.¹⁵

The PCB Mega Rule has greatly relaxed the regimen for the disposal of PCB-contaminated soil. The PCB Mega Rule authorizes a party remediating a PCB-contaminated site to dispose of the soil contaminated with a PCB concentration of less than 50 ppm at a municipal nonhazardous waste site.¹⁶ If the soil is contaminated at a concentration equal to, or in excess of, 50 ppm, the party performing the remediation can send the soil either to a RCRA Subtitle C landfill, a TSCA qualified landfill, or an incinerator.¹⁷ In reality, however, the PCB Mega Rule has eliminated the requirement to send any PCB remediation waste to a TSCA regulated landfill. As the Agency explained in the preamble to the Mega Rule: "In response to comments seeking consistency with PCB remediation waste disposal, EPA added RCRA Subtitle C landfills as a disposal option for PCB bulk product waste because they are designed and operated in the same manner as TSCA chemical waste landfills."¹⁸

Although the PCB Mega Rule classified PCB-contaminated soil as "PCB remediation waste," the definition of PCB remediation waste is not limited to soil.¹⁹ In addition to soil, the definition includes rags, gravel, sediments, and demolition debris, such as wood and concrete. Moreover, the definition of such waste does not appear to be limited to the material itemized in the definition. The term also includes all "debris generated as a result of any PCB spill cleanup …,"²⁰ and such debris qualifies for disposal in the same manner as contaminated soil.

Unlike the pre-Mega Rule regulations, the disposal regulations of the Mega Rule do not contain any provisions addressing the disposal options for environmental media con-taminated [29 ELR 10461] with PCBs in excess of 500 ppm.²¹ Although the Mega Rule does contain a definition for "PCB-contaminated" which is "a non-liquid material containing PCBs at concentrations 50 ppm but 500 ppm …,"²² that term is not used in the disposal provision, but in the "continued use" provision of the Mega Rule.²³ The Mega Rule's definition of PCB remediation waste does not contain an upper limit PCB concentration.²⁴

The omission of an upper limit PCB concentration to the definition of "PCB remediation waste" does not mean that parties are free to dispose of PCB remediation waste contaminated with PCBs at concentrations in excess of 500 ppm at RCRA Subtitle C landfills. The Agency, in the preamble to the Mega Rule, clearly advised that the promulgation of the Mega Rule does not supplant any existing "Federal, State, or local laws or regulations [that] may impose additional, perhaps more stringent, requirements on PCB disposal."²⁵ Accordingly, the restrictions imposed on a RCRA Subtitle C landfill in its operating permit or by state or local law will govern its qualification to accept PCB remediation waste. Therefore, a party seeking to dispose of PCB remediation waste should investigate the operating restrictions of the available landfills before selecting a landfill to receive the waste.²⁶ It will pay to shop.

Remediating PCB-Contaminated Porous Surfaces

In December 1994, when EPA published the proposed PCB Mega Rule for public notice and comment, it touted the proposed rule as a comprehensive regulatory program on the use and disposal of PCB-contaminated media. In reality, it was not. The proposed rule contained extensive provisions on the remediation and use of PCB-contaminated nonporous surfaces, such as steel pipe or iron plating. The proposed rule also contained provisions that addressed the disposal of PCB-contaminated concrete rubble and demolition debris. However, the proposed rule did not have any provisions governing the remediation and continued use of PCB-contaminated porous surfaces, such as concrete walls and floors.²⁷

Although EPA had failed to include any provisions in the proposed rule for the remediation and use of PCB-contaminated concrete surfaces, it had not ignored the issue completely. On April 2, 1987, EPA had published the PCB Spill Policy.²⁸ Although not officially a regulation, the Spill Policy did provide meaningful guidance on, among other matters, the remediation of "low" and "high" contact surfaces, including concrete surfaces, that had been contaminated by post-1987 spills of PCBs. In short, the Spill Policy provided that high-contact surfaces contaminated with PCBs should be remediated to a cleanup level of 10 micrograms ([mu]g) per 100 square centimeters (cm²). Lowcontact surfaces were to be remediated to a level of 100 [mu]g/100 cm².²⁹

The Spill Policy provided useful guidance, but it technically only applied to post-1987 spills of PCBs. Thus, when EPA published its proposed rule for public comment in December 1994, a number of commentators urged the Agency to incorporate into the final rule formal regulations that would govern the use and remediation of PCB-contaminated porous surfaces, regardless of when the PCB spill had occurred.³⁰

The Agency accepted these suggestions and included provisions in the final PCB Mega Rule addressing the use and remediation of PCB-contaminated porous surfaces. These provisions contain specific directions for the manner in which porous surfaces contaminated with PCBs should be sampled and remediated for continued use. Any person may continue to use a PCB-contaminated concrete structure if the PCB concentration in the porous surface is reduced to below 10 [mu]g/cm² and if certain additional conditions are met. For example, if the surface is accessible, it must undergo a double wash rinse procedure, set forth in Subpart S of the PCB Mega Rule, and be allowed to dry for 24 hours. Whether the porous surface is accessible or not, the surface must be covered with either two solventresistant and water-repellent coatings of contrasting colors or a solid barrier fastened to the surface that covers all accessible areas. Finally, the surface area must be marked with an "ML" mark.³¹

EPA described the provisions on the remediation of porous surfaces in the preamble to the PCB Mega Rule and characterized the provisions as requiring "self-implementing" controls to reduce exposure to spilled PCBs and restrict migration of the PCBs from or within the porous material. The Agency's use of the term "self-implementing" in describing these provisions is important because use of the term implicitly invites owners and operators of facilities with PCB-contaminated porous surfaces to submit risk-based remedial alternatives if they should find the self-implementing provisions too burdensome.

Throughout the preamble to the PCB Mega Rule, the Agency uses the term "self-implementing" as a term of art. For example, in presenting the disposal options for PCB remediation waste, EPA described the three available options as follows: "(1) Self-implementing disposal similar to the PCB Spill Cleanup Policy, which is an enforcement policy codified at 40 CFR part 761, subpart G (see § 761.61(a)); (2) existing approved disposal technologies (see § 761.61(b)); and (3) risk-based disposal (see § 761.61(c))."³²

[29 ELR 10462]

Although the Agency's discussion of the remediation of porous surfaces in the preamble did not explicitly present risk-based alternatives to the self-implementing measures of that section, as it did in describing the remediation options for PCB remediation waste, the Agency's use of the term self-implementing would have been unnecessary if it did not intend to allow owners and operators of facilities the opportunity to submit a risk-based remedial alternative to the explicit cleanup measures set forth in the Mega Rule.

The reference to the Spill Policy as a self-implementing disposal option in the above-quoted language also is revealing. The PCB Mega Rule sets forth the cleanup standards and disposal options for PCB remediation waste. Among the cleanup standards and disposal options the Agency presented were the means to clean up nonporous surfaces for continued use, and the Agency referenced the procedures that use the Spill Policy wipe test standards.³³ In short, EPA, in setting the cleanup standards for both nonporous and porous surfaces, merely incorporated the remediation measures of the 1987 Spill Policy. The Spill Policy itself invited owners and operators of PCB-contaminated structures to submit proposals for less stringent cleanup standards on a site-specific basis using a risk-based analysis.³⁴ This is consistent with the PCB Mega Rule's overall approach to the remediation of PCB-contaminated media, which is to provide the regulated community the option either to adopt the self-implementing remedial approach contained in the PCB Mega Rule or to propose a risk-based approach for the Agency's approval.

Conclusion

The Agency, to its credit, did listen to the regulated community before it published the PCB Mega Rule in June 1998, and included in the final draft of the rule provisions that addressed some of the shortcomings identified in the proposed rule. Although the final draft of the rule is an improvement over the proposed rule, it does not address all of the questions and objections the commentators raised. Indeed, its provisions are silent or ambiguous on many of the issues identified in the objections and questions the regulated community tendered to the Agency. Answers to these questions will come, if at all, when the regulated community begins to test and challenge some of the rule's ambiguities and apparent shortcomings.³⁵

1. 63 Fed. Reg. 35384 (June 29, 1998). The date of "promulgation" was July 29, 1998, and the effective date of this rule was August 28, 1998. See 40 C.F.R. §§ 761.1-.398 (1998).

2. 15 U.S.C. §§ 2601-2692, ELR STAT. TSCA §§ 2-412.

3. The Agency, on June 6 and 7, 1995, held a public hearing on the proposed amendments. As the Agency described the hearing: "Almost all commenters supported the objectives EPA proposed for the PCB program, but they also provided numerous comments on how to better achieve these objectives." 63 Fed. Reg. at 35385.

4. See, e.g., Comments of the Chemical Manufacturers Association PCB Panel, the Utility Solid Waste Activities Group, and the National Electrical Manufacturers Association on the Environmental Protection Agency's Proposed PCB Disposal Amendments (May 5, 1995).

5. See 40 C.F.R. §§ 761.50 & 761.61 (1998).

6. Id. § 761.30(p).

7. Id. § 761.1(b)(5). The specific provision reads as follows: "No provision specifying a PCB concentration may be avoided as a result of any dilution, unless otherwise specifically provided."

8. See id. § 761.60(a) (1997).

9. See PCB Contamination at Superfund Sites—Relationship of TSCA Anti-Dilution Provision to Superfund Response Actions, Memorandum from Don R. Clay, Assistant Administrator for Solid Waste and Emergency Response, U.S. EPA, and Linda J. Fisher, Assistant Administrator for Pesticides and Toxic Substances, U.S. EPA, to the Regional Administrators (July 31, 1990).

10. See 63 Fed. Reg. 35384, 35388 (June 29, 1998).

11. Id.

12. See 40 C.F.R. § 761.125(c)(3), (c)(4) (1998).

13. The "maximum" concentration of PCBs in soil to be disposed of at a municipal (RCRA Subtitle D) landfill was set at either 10 ppm or 25 ppm, which were the benchmark concentrations set forth in EPA's PCB Spill Policy for "restricted" and "nonrestricted" areas. Id.

14. Id. § 761.75 (1997). Under the old disposal regulations, soil contaminated with PCBs at levels between 50 ppm and 500 ppm had to be disposed of at landfills that were qualified under the TSCA regulations to receive such waste. As a result, such soil and any other waste designated for disposal at a TSCA-regulated facility became known as TSCA wastes. On occasion, such soil had to be incinerated. Id. § 761.60(a).

15. Id. § 761.60(a); see id. §§ 761.60(a)(4) & 761.125(b)(3), (4).

16. See id. § 761.61(a)(5)(i)(B)(ii) & (a)(5)(v)(A) (1998).

17. See id. § 761.61(a)(5)(i)(B)(2).

18. 63 Fed. Reg. 35383, 35410-11 (June 29, 1998) (emphasis added).

19. 40 C.F.R. § 761.3 (1998).

20. Id.

21. Compare 40 C.F.R. § 761.60(a)(4)(1997) with id. §§ 761.60(a) & 761.61(a)(5) (1998).

22. The definition also includes liquid material with a concentration between 50 ppm and 500 ppm and nonporous surfaces with a PCB surface concentration between 10 micrograms ([mu]g) per 100 square centimeters (cm²) and 100 [mu]g/100 cm².

23. See 40 C.F.R. §§ 761.3 & 761.60 (1998).

24. See id. § 761.3. The rule also describes "bulk PCB remediation waste" as including, but not limited to, such nonliquid PCB remediation waste as soil, sediments, and muds. See id. § 761.61(a)(4)(i).

25. 63 Fed. Reg. 35390 (June 29, 1998).

26. Although this Article has focused on disposal options available for PCB remediation waste, the PCB Mega Rule does address capping PCB remediation waste and/or securing the contaminated area with fencing and signs. The availability of such alternatives depends on the PCB concentration in the soil, sediment, or debris and whether the contaminated area is a "high occupancy area," or a "low occupancy area." See 40 C.F.R. §§ 761.3 & 761.61(a)(4) (1998).

27. See 63 Fed. Reg. at 35398.

28. 52 Fed. Reg. 10705 (Apr. 2, 1987); see 40 C.F.R. §§ 761.120-.135 (1998).

29. 40 C.F.R. § 761.125(c)(3)(iii) (1994).

30. 63 Fed. Reg. at 35398.

31. 40 C.F.R. § 761.30(p) (1998).

32. 63 Fed. Reg. at 35406.

33. 40 C.F.R. §§ 761.79(b)(3) & 761.125(c)(3) (1998).

34. See id. § 761.120(c).

35. Indeed, the Agency has acknowledged that the rule contains some "significant oversights," and the Agency will publish a "question and answer" document to address substantive questions. Technical Corrections Rule Expected in May on Revised Regulation for Disposal of PCBs, 29 Env't Rep. (BNA) 2418-19 (Apr. 9, 1999).