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Inside EPA’s
Superfund Report
Incorporating
Waste Policy Alert
Exclusive coverage of waste management and cleanup regulation, legislation and policies
Vol. XXVIII, No. 26 — December 22, 2014
EPA Regulates Coal Ash As Solid Waste In Final Disposal Rule
EPA’s final coal ash disposal rule released Dec. 19 regulates ash as a solid waste under the
Resource Conservation & Recovery Act (RCRA) — a win for industry and many states but a loss for
environmentalists who sought regulation of ash as a RCRA hazardous waste, while partially delegating
to states on enforcing the rule’s requirements. “EPA is taking action to protect our communities from
the risk of mismanaged coal ash disposal units, and putting in place safeguards to help prevent the
next catastrophic coal ash impoundment failure, which can cost millions for local businesses,
communities and states,” EPA Administrator Gina McCarthy said in announcing the rule. Coal Ash,
Page 20.
EPA Strengthens DSW Regulation, Sets
Criteria For ‘Verified’ Recyclers
EPA has released its long-awaited final rule on the definition of
solid waste (DSW), strengthening Bush-era requirements for recycling
hazardous waste, as expected, but also addressing criticisms over the
2011 proposed rule by now allowing so-called “verified” recyclers to
obtain a variance from strict hazardous waste requirements, and
affirming the legitimacy of in-process recycling and commodity-grade
recycled products. EPA released the rule Dec. 10, saying the regulation
finalizes “new safeguards that promote responsible recycling of
hazardous secondary materials.” The revisions were driven by an
environmental justice analysis that found regulatory gaps in the Bushera 2008 DSW rule. Waste Policy, Page 3.
State Urges EPA To Limit Agricultural
Exposures In Novel Dioxin Cleanup
State regulators and community advisors are backing
environmentalists’ calls for EPA Region 5 to assess and mitigate
potential exposures to dioxin through contaminated food as part of a
novel cleanup in Michigan, calling for monitoring and land use controls,
though industry is arguing the cleanup plan is already overly
conservative. In recent comments, the Michigan Department of
Environmental Quality, which has worked with Region 5 to derive sitespecific cleanup levels for the site, notes the proposed cleanup for a
contaminated floodplain does not protect against potential risks from
consuming animal products raised in the area. Cleanup, Page 5.
Bill Lifts U.S. CERCLA Liability For
Transferred Parcels, Setting Precedent
Congress earlier this month approved three little-noticed measures
in the fiscal year 2015 defense authorization bill that release the United
States from liability for the cleanup of hazardous substances at Nevada
and Idaho land parcels being transferred from federal to local
jurisdictions, in what some sources say may set a precedent by
superseding the Superfund law’s liability scheme. Congress, Page 9.
CERCLA 107 Review Sought
Potentially responsible parties
(PRPs) at an Ohio landfill site are
asking the Supreme Court to review
a federal appellate Superfund
decision in order to lift limits
endorsed by various circuit courts
— and backed by EPA — on
plaintiff-PRPs’ use of the law’s
section 107 cost recovery
mechanism, which generally
includes a more-favorable statute of
limitations than other provisions.
Page 14.
Olden Eyes IRIS Update
DENVER — Ken Olden, chief of
EPA’s influential Integrated Risk
Information System (IRIS) chemical
toxicity assessment program, has
plans to address the longstanding
and chronic issue of outdated
agency assessments, in a new
proposal he has presented to EPA
leadership, he said during a
roundtable discussion with
stakeholders here. Page 17.
Fracking Rules Draw Debate
Environmentalists and oil
companies are butting heads over
the extent of groundwater
monitoring that is necessary for
hydraulic fracturing and acid well
stimulation treatments to ensure
protection of the environment and
public health, in continuing debate
over the development of first-time
California water board regulations.
Page 18.
Index
Senate Democrats Urge EPA To Accelerate New Rules
WASTE POLICY
For Facility Security .................................................... 12
EPA Strengthens DSW Regulation, Sets Criteria For
‘Verified’ Recyclers ....................................................... 3
LITIGATION
PRPs Seek High Court Review Of Limits On CERCLA
CLEANUP
107 Cost Recovery ...................................................... 14
State Urges EPA To Limit Agricultural Exposures In
Novel Dioxin Cleanup ................................................... 5 Advocates Join State In Defending Oil Spill Liability
Law From Railroad Suit .............................................. 15
Final EPA Assessment Of Libby Asbestos Eases
Non-Cancer Risk Findings ............................................ 6
RISK ASSESSMENT
Wyden Cites Hanford Leaks In Call For DOE To
Accelerate Cleanup Action ............................................ 7 Olden Hints At Plans To Update Chronically Outdated
IRIS Analysis Database ............................................... 17
State Regulators Dismiss EPA IG Recommendations On
Site Reuse Data .............................................................. 9
FRACKING
Groundwater Monitoring Plan Sparks Battle Over
CONGRESS
First-Time Fracking Rules ........................................... 18
Bill Lifts U.S. CERCLA Liability For Transferred
Parcels, Setting Precedent ............................................. 9
COAL ASH
EPA’s FY15 Staffing Reductions Could Create Hurdle
For Agency’s Agenda ................................................... 11 EPA Regulates Coal Ash As Solid Waste, Partially
Delegating Enforcement .............................................. 20
Background Documents For This Issue
Subscribers to InsideEPA.com have access to hundreds of documents, as well as a searchable archive of
back issues of Superfund Report. The following are some of the documents available from this issue of
Superfund Report. For a full list of documents, go to the latest issue of Superfund Report on InsideEPA.com.
For more information about InsideEPA.com, call 1-800-424-9068.
Documents available from this issue of Superfund Report:
„ Advocates Join California In Defending Oil Spill Liability Law From Railroad Suit
„ Environmentalists, Industry Clash Over California Fracking Groundwater Monitoring Rules
„ EPA Regulates Coal Ash As Solid Waste In Final Disposal Rule
„ EPA Tightens Recycling Requirements Under Waste Definition Rule
„ Final EPA Assessment Of Libby Asbestos Eases Non-Cancer Risk Findings
„ Lawmakers Unveil Compromise Omnibus Appropriations Bill For FY15
„ PRPs Seek High Court Review Of Limits On CERCLA 107 Cost Recovery
„ Senators Question EPA Progress On Facility Safety Rules
„ States Dismiss EPA IG Advice On Site Reuse Data
„ States Urge EPA Cleanup To Limit Dioxin In Food
„ Wyden Cites Hanford Leaks In Call For DOE To Accelerate Cleanup Action
Not an online subscriber? Now you can still have access to all the background documents referenced in this issue
through our new pay-per-view Environmental NewsStand. Go to www.EnvironmentalNewsStand.com to find out more.
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Waste Policy
EPA Strengthens DSW Regulation, Sets Criteria For ‘Verified’ Recyclers
EPA has released its long-awaited final rule on the definition of solid waste (DSW), strengthening Bush-era
requirements for recycling hazardous waste, as expected, but also addressing criticisms over the 2011 proposed rule by
now allowing so-called “verified” recyclers to obtain a variance from strict hazardous waste requirements, and affirming
the legitimacy of in-process recycling and commodity-grade recycled products.
EPA released the rule Dec. 10, saying the regulation finalizes “new safeguards that promote responsible recycling
of hazardous secondary materials.” The revisions were driven by an in-depth environmental justice analysis that found
regulatory gaps in the Bush-era 2008 DSW rule, which the agency says could cause disproportionate, negative impacts
on minority and low-income populations adjacent to third-party recyclers. Relevant documents are available on
InsideEPA.com. See page 2 for details.
Specifically, the agency “identified mismanagement by third-party hazardous materials recyclers as posing a risk of
fires, explosions, accidents and releases of hazardous constituents to the environment,” EPA says in a Dec. 10 fact sheet.
This, it found, was due to the economics of commercial recycling, which include “market disincentives that encourage
over-accumulation and mismanagement of hazardous secondary material.” Consequently, the 2008 rule lacked the tools
to provide for proper oversight, it says.
The agency is framing the revised rule as beneficial in several ways, including promoting resource conservation,
leading to economic benefits as well as strengthening public health protections. The revised rule “modifies the 2008 rule
to provide important public health, community health and environmental benefits from [preventing] mismanagement of
hazardous secondary materials but preserving and expanding the real value of recovering materials, used materials, for
manufacturing of productive goods for society,” EPA Assistant Administrator for the Office of Solid Waste & Emergency Response Mathy Stanislaus told reporters on a Dec. 10 teleconference call.
“It really advances some of the best practices that we believe exist, particularly in the manufacturing realm,” he
said.
Largely in response to a lawsuit by environmentalists, who claimed the Bush administration’s 2008 rule was too lax,
the Obama EPA in 2011 proposed tightening the 2008 rule’s requirements. Under the 2011 proposal, companies would
face numerous obligations to continue recycling materials, including notification, containment and record-keeping
requirements, as well as proving that products are sent for legitimate recycling, by meeting all four of EPA’s criteria for
determining that recycling is legitimate, rather than just two criteria as the Bush rule had allowed.
Early reaction to the final rule is mixed. In a Dec. 11 statement, the Sierra Club said the final rule “closes some
loopholes to control hazardous waste recycling,” but leaves “other sizable gaps.” These include “the lack of any
enforceable standard for the containment of hazardous waste and the lack of standards for facilities that treat and
dispose of similar waste — the source of much of the contamination that has previously been traced to DSW rule
loopholes.”
In addition, one industry source says that while others in the business community may disagree, EPA appears to be
“striking a pretty good and sensible balance” with the final rule, not losing the lesson of Superfund — which is that
conserving resources is only helpful if one does not spoil other resources. Sources with major industry groups had not
yet completed their reviews of the final rule by press time.
As expected, the final rule eliminates the transfer-based exclusion contained in the 2008 rule — something that
activists praised in the proposal but which hazardous waste treatment companies argued against. Under the transferbased exclusion, recycling conducted by a third party, as opposed to the generator of the hazardous substance, is exempt
from strict regulation.
EPA in the 2011 draft rule had proposed “alternative requirements” for transfer-based recycling, under which
“the hazardous recyclable materials must be managed according to the [Resource Conservation & Recovery Act
(RCRA)] Subtitle C requirements.” Similar to the proposal, EPA is eliminating the transfer-based exclusion, but instead
is replacing it with a new “verified recycler exclusion.” Under the measure, hazardous materials recyclers can either
obtain RCRA permits to address these materials or can secure a variance before operating under the exclusion, the EPA
fact sheet says. Under this, generators who want to recycle their hazardous secondary materials, and avoid having them
be labeled as hazardous waste, must send them to either a RCRA-permitted reclamation facility or a verified recycler
with a variance from EPA or a state, the rule says.
The verified recycler exclusion “will allow EPA and the states to use the RCRA permitting process or solid waste
variance process to verify that a facility has established rigorous safety measures to manage the material,” the fact sheet
says.
EPA sets out several criteria for parties to meet the verified recycler exclusion. These are that the third-party
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Waste Policy
recycling facility must demonstrate it has financial assurance plans showing its financial stability, that both the
facility and generator meet emergency response and preparedness requirements, that the facility meets public
participation requirements such as giving the public a chance to weigh in prior to environmental decisions related
to the facility and that the facility addresses whether their activities pose a risk to the surrounding community or
add to cumulative environmental impacts, among other requirements, according to a “Frequently Asked Questions
(FAQ)” paper by EPA.
The final rule also requires that all four legitimacy criteria be met to qualify recycling as legitimate, and distinguish
real recycling from sham recycling — where entities seek to avoid managing hazardous secondary materials as hazardous waste.
“Setting the standard for legitimate recycling in the regulations makes it substantially harder for facilities who
are illegally disposing under the guise of recycling to continue to operate in the marketplace,” EPA says in the fact
sheet.
The four legitimacy factors are: that the recycling “provides a useful contribution to the recycling process,” that the
recycling process produces a valuable product or intermediate, that the hazardous secondary material is managed as a
valuable commodity under the generator and recycler’s control and that the product of the recycling process is comparable to a legitimate product or intermediate, according to the final rule.
But, in one significant change from the proposed version, EPA says it is now presuming as legitimate inprocess recycling and the recycling of commodity-like materials, an EPA spokeswoman said on the teleconference
call. The change responds to comments the agency received that the proposed rule would discourage legitimate
recycling, she said. This offers “some flexibility in determining legitimacy for certain types of recycling,” the rule
says.
“In particular, in cases where there is no analogous product made from raw materials, EPA has clarified that the
product of recycling is still a legitimate product when it meets widely recognized commodity standards (e.g., commodity-grade scrap metal) or when the hazardous secondary material is recycled back into the production process from
which it was generated (e.g., closed-loop recycling),” the rule says.
Further, where the product of the recycling process has levels of hazardous constituents not comparable to analogous products, “the revised legitimacy standard includes a process that allows the facility to document and certify that
the recycling is still legitimate, keep such documentation at the facility, and send a notification to the regulatory authority to that effect,” it says.
The National Mining Association raised concerns over the legitimacy factors in meetings with White House
officials earlier this year, saying it is impossible for precious metals producers to meet the analogous product test
because there are no analogous products, and because metallic impurities vary on a daily or even hourly basis due to
natural variations in the ore. Additionally, the industry noted in the meetings that EPA on two prior occasions has found
this criterion inappropriate for mining companies (Superfund Report, May 12).
EPA says in the FAQ paper that the final rule gives companies flexibility to “use good business practices
to increase recycling” safely. Among the measures in the rule to facilitate this is EPA’s decision to include a
specific remanufacturing exclusion for certain higher-value hazardous spent solvents being remanufactured into
commercial-grade products. “This allows manufacturers to reduce the use of virgin solvents, resulting in both
economic and environmental benefits, including energy conservation and reduced greenhouse gas emissions,” the
FAQ paper says.
The rule also affirms the legitimacy of pre-2008 DSW exclusions, such as the scrap metal exclusion, the paper says.
Further, EPA says the regulation “retains the exclusion for recycling under the control of the generator, including
recycling on site, within the same company, and through toll manufacturing agreements.”
EPA says the rule will become effective six months after it is published in the Federal Register in states where EPA
administers the RCRA program. But because most states are RCRA-authorized, the impact of the rule will depend on
how many of these states adopt it, the agency notes. The agency in the fact sheet anticipates adoption by states of the
2014 rule will be much higher than that for the 2008 rule as the new rule addresses many of the concerns states raised
over the 2008 version.
“EPA estimates that if 31 states and territories adopt the 2014 DSW rule, the rule will have an annual regulatory
cost savings of $24 million as compared to baseline cost savings in the 8 states and territories that have adopted the
2008 DSW final rule,” the fact sheet says. The agency plans outreach to states providing training and guidance and
urging them to adopt the rule quickly, and will reach out to facilities operating under the 2008 rule to help them understand and comply with the new regulation, the agency says in the FAQ paper. — Suzanne Yohannan
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State Urges EPA To Limit Agricultural Exposures In Novel Dioxin Cleanup
State regulators and community advisors are backing environmentalists’ calls for EPA Region 5 to assess and
mitigate potential exposures to dioxin through contaminated food as part of a novel cleanup in Michigan, calling for
monitoring and land use controls, though industry is arguing the cleanup plan is already overly conservative.
In recent comments, the Michigan Department of Environmental Quality (MDEQ), which has worked with Region
5 staff to derive site-specific cleanup levels for the site, notes the proposed cleanup for the contaminated floodplain of
the Tittabawassee River does not protect against potential risks from consuming animal products raised in the area.
As a result, MDEQ says, “Reliable land use controls, monitoring, and continued education and outreach will be
necessary to ensure that animal products such as livestock and chicken eggs are not produced or consumed from the
floodplain.” Relevant documents are available on InsideEPA.com. See page 2 for details.
MDEQ’s comments follow consultation with Michigan’s Department of Agriculture and Rural Development, and
recommends gathering and evaluating additional data for agricultural activities, including air monitoring during planting
and harvesting, as well as samples of crops, including soybean, corn and surface crops such as lettuce, cucumbers and
squash.
The state’s concern backs environmentalists’ calls for EPA to consider the additional pathway of human exposure
through eating contaminated livestock or wildlife.
Environmentalists raised a variety of concerns after the release of EPA and MDEQ’s Aug. 12 proposal, but focused
primarily on the novel site-specific cleanup standards derived from EPA’s February 2012 Integrated Risk Information
System (IRIS) non-cancer risk assessment of 2,3,7,8-tetrachlorodibenzo-p-dioxin, the most toxic form of the compound.
The IRIS assessment set an oral reference dose (RfD) — or amount below which EPA expects no adverse health
effects if ingested daily for a lifetime — of 0.7 picograms per kilogram bodyweight per day (pg/kg-day). The 2012 IRIS
assessment of dioxin’s non-cancer risks was part of a reassessment of dioxin’s health risks that agency staff has been
working on for decades, though EPA has yet to complete the cancer portion of that assessment.
But additional environmentalists’ concerns, including risk of exposure through contaminated agricultural products,
which the EPA plan does not seek to address, are further detailed in October comments that Region 5 recently released
after a Freedom of Information Act (FOIA) request.
Environmental groups are closely watching the floodplain cleanup because they say EPA’s handling of the site
could set a precedent for how the agency implements the non-cancer risk estimate for dioxin at sites around the country.
Dioxin is a category of persistent and accumulative compounds inadvertently created through industrial incineration
processes and through the burning of trash and forest fires.
In addition, to MDEQ, the Saginaw-Tittabawassee Rivers Contamination Community Advisory Group (CAG),
which is generally backing EPA’s approach for deriving site-specific cleanup standards, is also urging Region 5 to
address potential exposures through agricultural products.
The Dow Chemical Company, in October comments, argues testing of hundreds of adults in the area has shown “no
significant increases in blood dioxin levels related to soil concentrations,” and says the agencies’ August cleanup
proposal contains numerous conservative assumptions.
The proposed cleanup plan for the Tittabawassee River floodplain soil is based on the 2012 IRIS assessment’s noncancer RfD, but EPA and MDEQ also used other factors to derive site-specific cleanup standards, including how
contamination is absorbed into the bloodstream and tissues after a person is exposed, and how cold climate limits the
number of days of potential exposure to contaminated soil since the ground is snow-covered.
EPA’s proposed cleanup includes standards of 250 parts per trillion (ppt) in maintained residential areas and 2,000
ppt in other lands, such as farms, parks, commercial properties and a wildlife refuge. The levels are significantly weaker
than the 50 ppt standard the agency floated in 2012 and which industry groups have claimed is flawed and overly
stringent.
Although the proposed cleanup goals are based on protecting against non-cancer risks because EPA has not
yet completed the cancer values for dioxin, EPA says in an August fact sheet that the site-specific cleanup levels based
on the 2012 non-cancer RfD are expected to be protective of cancer risks.
Additionally, in the fact sheet, Region 5 acknowledges the proposed cleanup numbers are not based on potential
exposures through consumption of livestock or wildlife, or on ecological risks, and says that EPA and MDEQ will
continue to evaluate those potential exposures.
But the CAG, in Oct. 14 comments, says it “is not satisfied with the fact that these numbers only address direct
exposure and completely ignore agricultural impacts and the bioaccumulation in produce and meat. This is a significant
oversight and needs to be addressed in a much more robust way than is currently being done.”
To emphasize the concern, the group notes that EPA’s science on dioxin is incomplete and says confusion over the
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dangers of the substance persists. Although the CAG “is not in full agreement over the specific levels,” it generally
backs EPA’s consideration of potential exposures in deriving the site-specific cleanup standards, according to the
comments.
The push from state regulators and community advisors for Region 5 to address possible human exposures through
agricultural products, backs concerns environmentalists have raised previously, and that are further detailed in comments Region 5 released after the FOIA request.
In Oct. 14 comments, a coalition of six environmental groups, including Clean Water Action and the Michigan
Environmental Council, object to the cleanup proposal, calling the site-specific cleanup standards inadequate, and
faulting regulators for failing to address human exposures from the bioaccumulation of dioxin in livestock and wildlife.
The failure to address potential exposures through food puts people who are not aware of advisories at risk from
health impacts from dioxin indefinitely, according to the groups comments. Additionally, the groups say that tests have
found elevated levels of dioxin in eggs raised on the floodplain and matched the dioxin in eggs to area soils, linking
contamination to local food.
The groups also argue the 250 ppt cleanup goal for maintained residential areas is nearly three times weaker than
Michigan’s established 90 ppt cleanup level for dioxin and more than 50 times weaker than the most stringent standard
in the United States. But they also note the far weaker standard of 2,000 ppt for unmaintained residential areas and
agricultural land will apply to 95 percent of the floodplain.
Questioning the rationale for the weaker standard, the groups argue farmers have frequent contact with soil and say,
“dioxin can be taken-up into plants, and farms often have farm animals that can concentrate dioxins.”
In Oct. 14 comments, Dow, the responsible party, argues the cleanup proposal is overly conservative because the
cleanup goals were calculated based on default values and site-specific assumptions for which there are scientifically
defensible alternatives that would result in less conservative, but still protective numbers.
Dow says the agency proposal overestimates dermal exposures by overestimating the number of days children
spend outside in shorts and short-sleeve shirts, and that floodplain includes wetlands and remote areas, which are
“essentially inaccessible to residents for direct contact on a regular basis.”
Additionally, Dow says EPA relied on an average of data from studies of bioavailability, the rate contamination is
absorbed after exposure, in two animal species, rather than on data from studies of the species that is more representative of uptake in humans.
Dow also notes studies that have not found increased dioxin levels of blood of adults living in the floodplain. “The EPAcalculated [preliminary remediation goals] clearly reflect goals for soil levels that are highly conservative, since even current
conditions have not led to detectable elevations in blood dioxin levels in adult residents.” — Dave Reynolds
Final EPA Assessment Of Libby Asbestos Eases Non-Cancer Risk Findings
EPA has finalized its long-awaited risk assessment of Libby amphibole asbestos (LAA), setting a first-time noncancer exposure level slightly less stringent than the draft version but leaving the carcinogenicity findings unchanged, a
decision that clears the path for the agency to decide final cleanup standards for Libby, MT.
In connection with the final Integrated Risk Information System (IRIS) assessment of LAA, EPA also released Dec.
8 draft site-wide human health risk assessment for the Libby asbestos Superfund site in Montana, which quantifies the
risks of exposure to LAA for residents and workers and will guide future agency actions at the site. Relevant documents
are available on InsideEPA.com. See page 2 for details.
EPA finds that previous cleanup efforts in Libby and Troy, MT, have resulted in acceptable risk levels for the
communities, although remaining asbestos will need to be safely managed.
In the draft IRIS assessment, EPA proposed setting a reference concentration (RfC) of 0.00001 fibers per cubic
centimeter (f/cc), based on lung abnormalities called localized pleural thickening (LPT), which the agency describes as
growths “of fibrous tissue within the sack that surrounds the lung.” An RfC is the maximum amount of a substance the
agency estimates can be inhaled daily over a lifetime without adverse non-cancer health effects.
But the final assessment has an RfC of 0.00009 f/cc, a level above the estimated background levels of asbestos in
soil of 0.00005 f/cc.
EPA says the final carcinogenic risk from inhalation exposure of LAA, expressed as an inhalation unit risk (IUR) value, is
0.17 (f/cc)-1, the same as the agency proposed in the draft assessment. EPA’s IUR for the generic asbestos mix is 0.23 (f/cc)-1.
“EPA’s scientific evaluation shows that our cleanup approach is working and we are reducing health risks for
residents in Libby,” Region 8 Administrator Shaun McGrath said in a Dec. 8 statement. “We look forward to working
with the community to use this important science in identifying the final set of cleanup actions.”
Montana’s senators issued a joint statement Dec. 9 welcoming the final assessment.
“Folks in Libby and Troy have spent years — and many have died — waiting to find out what will happen to their
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homes and community,” Sen. Jon Tester (D) said. “While local residents are not out of the woods yet, today’s report
shows that the clean-up effort is working and many homes and schools are safe for families and children. I encourage
folks to make their voices heard as the EPA, the state of Montana and community leaders continue building the future of
Libby.”
“The families of Libby and Troy deserve transparency in this process, and we welcome today’s news that clean-up
efforts have been effective,” Sen. John Walsh (D) said. “The conclusions in the assessments released today will allow us
to take the proper next steps to control or eliminate risks associated with asbestos exposure.”
Earlier this year, attorneys for W.R. Grace, the bankrupt mining company liable for the asbestos contamination,
filed a Data Quality Act petition urging EPA to drop its efforts to develop an IRIS assessment for LAA, saying the draft
analysis set an RfC so strict it would force cleanup below naturally occurring levels (Superfund Report, March 17).
Grace also argued that LPT is not an adverse health effect, but merely a change indicating asbestos exposure, and as
such should not be the basis for the RfC.
But EPA science advisors in 2012 largely supported EPA’s use of LPT and the data EPA selected to calculate the
RfC, although some Science Advisory Board panelists expressed concern about the stringency of the RfC, and pressed
EPA to carefully review the draft in light of analyses of other types of asbestos fibers.
EPA’s risk estimate is specific to the type of asbestos mined at Grace’s now-defunct vermiculite mine in the small
town of Libby, MT. Vermiculite, with its heat-resistant properties, was used to make building insulation, and Libby
vermiculite insulation was processed and shipped around the country for seven decades.
But the vermiculite in Grace’s mine was also contaminated with LAA.
A decade after Grace closed the mine in 1990, EPA declared Libby a Superfund site. While cleanup of the
mine and town has been in progress since 2007, EPA has long maintained that it needs a finalized IRIS assessment to
determine the final cleanup levels at the mine, as well as contaminated processing facilities around the country.
Elected officials in Montana have long pressed EPA to finalize the IRIS assessment, with the state’s governor, Steve
Bullock (D), writing to EPA Administrator Gina McCarthy last month about the issue.
“The community of Libby has been waiting for 15 years for a final cleanup plan, and it is time to provide the people
of Libby certainty regarding the proposed cleanup,” Bullock wrote in a Nov. 3 letter to McCarthy. “Further, the lack of
toxicity values for Libby Asbestos Amphibole [LAA] makes it . . . difficult, if not impossible, for the State to fulfill its
role under Superfund to consult with EPA regarding the protectiveness of a proposed cleanup.”
In the fact sheet on the draft site-specific human health assessment, EPA says the risk assessment shows EPA’s
indoor and outdoor cleanups have been effective in reducing both cancer and non-cancer risks in the area.
“This means that EPA’s cleanup work results in acceptable risk levels. EPA has extensively tested outdoor air in
Libby and Troy for LA asbestos and concentrations are now equivalent to those found in other Montana cities. Air
asbestos concentrations today are up to 100,000 TIMES LOWER than when the mine and processing facilities were
operating,” EPA says.
Because LAA is naturally occurring in the area and because some is sealed behind indoor walls or outdoors below
the surface, EPA says in the fact sheet that ensuring it “does not present a risk in the future will be part of a long-term
plan for the site.” The agency says it and the Montana Department of Environmental Protection “are confident that any
remaining contamination can be effectively managed, and the selected remedy will include details on how any waste that
is left in place will be managed after cleanup is completed.” — Lara Beaven
Wyden Cites Hanford Leaks In Call For DOE To Accelerate Cleanup Action
Sen. Ron Wyden (D-OR) is pressing the Energy Department (DOE) to develop a plan of action within the next 90
days to respond to worsening conditions identified by the Government Accountability Office (GAO) at DOE’s Hanford,
WA, reservation, where it found underground tanks storing nuclear and chemical waste are further deteriorating and in
some cases leaking, and said DOE should assess corrosion factors and explore storage alternatives.
DOE is agreeing with recommendations GAO makes in the Dec. 16 report to assess the integrity of all its doubleshell tanks (DSTs) at the Hanford site to determine corrosion factors, update its schedule for retrieving waste from the
tanks and assess options for creating additional double-shell tank space, it says. Relevant documents are available on
InsideEPA.com. See page 2 for details.
But Wyden, who requested the report, wants DOE to move quickly on the work. “Agreeing to recommendations is
one thing, implementing them is another,” he says in a Dec. 16 press release.
“The DOE’s ‘watch-and-wait’ strategy for these tanks leaking nuclear waste into the soil is completely unacceptable. I’m asking for a schedule and a plan of action within 90 days to implement the GAO’s recommendations at
Hanford.” Wyden made the request in a Dec. 16 letter to Energy Secretary Ernest Moniz.
The ongoing deterioration of tanks storing radioactive and chemical waste is considered one of DOE’s greatest
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challenges at Hanford, with DOE spending more than $1 billion annually on its tank waste retrieval and treatment
efforts. The site has 177 large underground storage tanks currently holding more than 56 million gallons of this
waste. Two years ago, DOE announced it had discovered nuclear waste leaking between the inner and outer shell
of one of the double-shell tanks — tank AY-102 — which was the first leaking DST identified out of Hanford’s 28
DSTs, GAO says.
The discovery “raised concerns among DOE, its regulators, the public, and Congress about the viability of the other
DSTs at Hanford and the risks posed by continuing to store waste in those tanks,” GAO says.
Following that, DOE found a leaking single-shell tank (SST), and then discovered water intruding into at least 14
SSTs, GAO says.
DOE is designing and constructing a Waste Treatment and Immobilization Plant (WTP) to treat the tank waste for
disposal, but the WTP has long been delayed due to technical difficulties and costs that have far exceeded estimates.
The WTP delays could impact DOE’s ability to manage the tank waste, GAO notes.
In its report, “Hanford Cleanup: Condition of Tanks May Further Limit DOE’s Ability to Respond to Leaks and
Intrusions,” GAO finds that the department’s “current schedule for retrieving the waste from the tanks (developed in
2011), which includes transferring waste from SSTs to DSTs and treating the waste in the DSTs, does not take into
account the worsening conditions of the tanks or the delays in the construction of the WTP.”
GAO sees compounding problems emerging. Space to move waste into DSTs is limited as the AY-102 leak and
planned waste transfers have lowered the DST space available. “Future leaks and intrusions, which become more likely
as the tanks’ condition worsens, would place additional demands on the already limited DST storage space, and it is
unclear how DOE would respond,” GAO says.
Earlier this year, DOE announced more delays in constructing the WTP, which will impact the schedule for
removing tank waste. However, DOE has not estimated this impact on the removal of the waste, and cannot estimate
how long the waste will remain in the aging tanks, it says.
DOE officials and a 2014 expert panel that examined the integrity of the DSTs say corrosion threatens the integrity
of the DSTs, and that DOE lacks an understanding of that corrosion, and whether other DSTs could be susceptible to the
same corrosion as AY-102.
“Without determining the extent to which the factors that contributed to the leak in AY-102 were similar to the other
27 DSTs, DOE cannot be sure how long its DSTs can safely store waste,” GAO says.
GAO says DOE has taken and is planning additional steps to better monitor and inspect the tanks, and is reassessing
the integrity of DSTs, but the steps will not address the long-term concerns about waste remaining in the tanks indefinitely.
GAO recommends DOE take several actions to ensure the department’s long-term plans for waste storage in the
tanks consider their condition and the WTP construction delay.
These recommendations are to: “[a]ssess the extent to which the factors that may have led to corrosion in AY102 are present in any of the other 27 DSTs,” and revise the schedule for removing waste from the tanks, weighing
the impact of the WTP delays and the risks related to continued storage of waste in aging tanks, and conducting an
examination of available DST space. Also, the report calls for assessing alternatives for establishing new Resource
Conservation & Recovery Act (RCRA)-compliant tank space for waste from SSTs, including constructing new
DSTs.
Wyden, who sits on the Senate Energy & Natural Resources Committee and in the past chaired the committee,
criticizes DOE’s response to GAO’s findings, where DOE indicates that “notwithstanding repeated assurances to the
contrary,” the department says it “does not fully understand the cause for the leaks in tank AY-102.” In its response
to GAO, DOE says, “’To the extent that the cause of the leak can be determined when DOE completes removal of
the waste from this tank, that information will inform the assessments and maintenance of the other DSTs,’”
according to Wyden’s letter. But Wyden points out that “will not happen until March 2017 — an unacceptably long
time from now.”
Also, DOE’s response to the findings says the department plans to reduce the volume of surface liquids in the SSTs,
but the department does not commit, despite a tri-party agreement, “to meeting and maintaining interim stabilization
criteria for these tanks,” Wyden says.
GAO found that 14 SSTs have water intrusion, making it “very difficult” to monitor for leaks, and that five
SSTs no longer meet stabilization criteria. “DOE’s response has simply been to monitor these questionable tanks
more often while resisting efforts by the State of Washington and the State of Oregon for an enforceable schedule
for removing waste from the SSTs as required in the Hanford Tri-Party Agreement and Consent Decree,” Wyden
writes.
“Increased monitoring is a necessary, but not sufficient response to the deteriorating condition of the Hanford
tanks,” he says. — Suzanne Yohannan
8
SUPERFUND REPORT - www.InsideEPA.com - December 22, 2014
Cleanup
State Regulators Dismiss EPA IG Recommendations On Site Reuse Data
State regulators are pushing back against recommendations made by the EPA Inspector General (IG) to boost the
agency’s oversight and review of data that is submitted by states on cleanup sites designated as ready for reuse, joining
the agency’s waste office in rejecting the IG recommendations.
At issue is the IG’s Sept. 29 report, “EPA Needs to Improve Its Process for Accurately Designating Land as Clean
and Protective for Reuse,” which advised the agency’s waste office to revise and finalize guidance on how brownfields
and underground storage tank (UST) and corrective action sites are designated as safe and ready for reuse after cleanup,
with the waste office contending the IG misinterpreted the agency’s role in state-run or delegated programs.
The IG told the waste office its controls were limited in verifying the accuracy of data submitted to its CrossProgram Revitalization Measures (CPRM) — performance measures used across various cleanup programs to show
sites are safe. States and others provide the agency with data to show these sites are “protective for people” (PFP) and
are “ready for anticipated use (RAU),” two CPRM performance measures used by the programs.
To correct this finding, the IG recommended the waste office take a number of actions, including revising its CPRM
guidance and stipulating certain requirements in grant agreements.
But EPA’s waste office balked at the recommendations, saying the IG was inaccurately portraying EPA’s role in
state-run programs. Further, the waste office downplayed the significance of the CPRM measures cited by the IG, saying
there are many performance measures EPA uses to gauge cleanup progress.
Now state organizations are echoing that criticism. In a Dec. 8 letter to IG Arthur A. Elkins Jr., the Environmental Council
of States (ECOS) and the Association of State & Territorial Solid Waste Management Officials (ASTSWMO) say the recommendations for increased EPA oversight and review on RAU and PFP data submitted by states is unnecessary.
“We are concerned that the Report’s recommendations could invalidate State data submitted to EPA and weaken the
co-regulator relationship between States and EPA on important waste and remediation programs (Brownfields, RCRA
Corrective Action [CA], and Underground Storage Tanks).” The letter is available on InsideEPA.com. See page 2 for details.
The groups say they agree with the Aug. 25 response to the draft IG report from EPA waste office chief Mathy
Stanislaus. Stanislaus said for instance the RAU provides a snapshot of information, and is reported at a program level
for state-run programs, not at a site-specific level, and is not relied on to make determinations on site reuse.
ECOS and ASTSWMO contend the data they submit is “accurate and reliable. States, as delegated administrators of
these programs, have capabilities to address site-specific data problems and processes to involve EPA,” they add.
“States have a clear interest in ensuring the safe and protective cleanup of sites in their boundaries and in protecting
their citizens.”
The organizations say they rely on expert technical staff to review sources of data and would be willing to share
with the IG examples of steps that states take to ensure data integrity and quality assurance.
Congress
Bill Lifts U.S. CERCLA Liability For Transferred Parcels, Setting Precedent
Congress earlier this month approved three little-noticed measures in the fiscal year 2015 defense authorization bill
that release the United States from liability for the cleanup of hazardous substances at Nevada and Idaho land parcels
being transferred from federal to local jurisdictions, in what some sources say may set a precedent by superseding the
Superfund law’s liability scheme.
The Senate Dec. 12 approved H.R. 3979, the FY15 National Defense Authorization Act, following House passage
Dec. 4. President Obama is expected to sign the measure.
The bill includes several federal land transfer provisions, including three that provide the federal government with
an environmental liability release for any remaining contamination left on the lands.
While at press time it was unclear whether EPA had been aware of the three provisions when they were floated, the
agency has routinely rebuffed attempts by federal agencies to propose legislative language that impedes statutory
requirements under section 120 — the federal facilities section — of the Comprehensive Environmental Response,
Compensation & Liability Act (CERCLA).
Under section 120, federal facilities are subject to CERCLA in the same manner and to the same extent as private
parties, including its joint and several liability provisions. The law does not permit federal agencies to transfer their
CERCLA liability when they transfer lands to other parties.
One public interest group source says that the measures to release the federal government from cleanup liability
“sound like a dangerous precedent to me,” although the source adds it is not clear whether pollutant releases are likely
SUPERFUND REPORT - www.InsideEPA.com - December 22, 2014
9
Congress
or what the lands’ intended uses are.
In addition, one former Defense Department attorney is generally dismissive of any concerns over cleanup, although the source concedes the measures might be precedential. The source says these transfers involve municipalities
receiving the properties that should have performed, or will perform, due diligence before accepting the transfers, but
notes that the liability release arguably could preempt a CERCLA site characterization requirement.
H.R. 3979 includes the liability releases in three measures affecting land parcels in Idaho and Nevada. Under the
Idaho measure, the bill conveys 31 acres of shooting range land in Idaho County from the Interior Department to the
county, under the condition that the county agrees “to release and indemnify the United States from any claims or
liabilities that may arise from uses carried out on the land . . . on or before the date of the enactment of this Act by the
United States or any person.” The land is to be used only as a shooting range or for other specific recreation purposes,
according to the bill.
The Nevada provisions contain nearly identical releases. The first conveys approximately 1,329 acres of land to the
City of Carlin, and the second conveys an unspecified amount of land to Fernley, NV, for recreational purposes. Both
parcels are being conveyed by the Interior Department.
The liability release for the Carlin transfer reads: “Upon making the conveyance . . ., notwithstanding any other
provision of law, the United States is released from any and all liabilities or claims of any kind or nature arising from the
presence, release, or threat of release of any hazardous substance, pollutant, contaminant, petroleum product (or
derivative of a petroleum product of any kind), solid waste, mine materials or mining related features (including tailings,
overburden, waste rock, mill remnants, pits, or other hazards resulting from the presence of mining related features) on
the Federal land in existence on or before the date of the conveyance.”
In Dec. 10 remarks on the Senate floor, Sen. Dean Heller (R-NV) hailed the land transfers as economic boons,
among the several public lands provisions he supported in the defense bill. The measure on Carlin allows the city to
purchase Bureau of Land Management lands to meet the demand for expansion of a city that is otherwise entirely
“landlocked by federal land,” he said.
The Fernley transfer will allow the city to buy up to 9,114 acres of federal land for economic development purposes, he said.
Under the three provisions, cost recovery under CERCLA section 107 would not be available against the United
States, according to the former DOD attorney. While it is unclear what the environmental condition of the properties is,
the recipient municipalities should have performed, or should perform, their due diligence before agreeing to the
transfers, the former DOD attorney says, and EPA or state regulators are not precluded by the new provisions from
enforcing cleanup standards against the new owners, the source notes.
“All that is waived is an ability to go back against the United States for the cost of remedial activities,” the source
says in an email response to questions.
But, the source adds, one fundamental issue is site characterization. The liability release in the defense bill “does
affect the requirement of CERCLA section 120(h)(3) to include in the deed of transfer the notices regarding the environmental history of activities and remediation at the site and the covenant warranting that all remedial action necessary to
protect human health and the environment has been taken.”
If that covenant were breached, it “would raise issues about the enforceability of the obligation for the United States
to return and perform addition[al] remediation,” the source says. “There would likely be a debate about whether that
obligation is repudiated by the release from claims or liabilities.” But the bill language does not impact remediation, the
source points out, rather it simply removes U.S. liability for it.
A Defense Department source could not be reached for comment by press time on the language.
Congress many years ago passed legislation that allows the transfer of “dirty” parcels of federal property if the
recipient performs the cleanup, but that legislation did not give the United States a release from CERCLA liability.
In related cleanup news, the defense bill also contains a provision long sought by lawmakers from Puerto Rico that
requires DOD to fund the cleanup of military munitions in publicly accessible areas on the Puerto Rico island of
Culebra. The measure lifts a restriction in a 1973 law that DOD had maintained barred the department from using
federal appropriations to clean up part of the island, despite CERCLA’s section 120. DOD had previously opposed a
measure to lift the funding ban, according to a Dec. 13 press release from Resident Commissioner Pedro Peirluisi (DPuerto Rico) praising the passage of the new measure. — Suzanne Yohannan
10
SUPERFUND REPORT - www.InsideEPA.com - December 22, 2014
Congress
EPA’s FY15 Staffing Reductions Could Create Hurdle For Agency’s Agenda
EPA faces a fiscal year 2015 staffing reduction under compromise appropriations legislation that will cut the
agency’s employee levels to their lowest since 1989, which could create a hurdle for EPA fully implementing its air,
water, climate, and other programs despite the agency suffering only a $60 million budget cut in the FY15 bill.
While the omnibus bill includes restrictions on some EPA policies, such as forcing the agency and the Army Corps
of Engineers to withdraw their controversial “interpretive” rule related to the proposal to define the scope of the CWA,
and continuing riders established in FY14 spending bills, it avoids prohibitions on major contentious rulemakings,
including the CWA rule and EPA’s contested greenhouse gas (GHG) rules for power plants.
The House Dec. 11 approved the legislation — which will last until the end of FY15 on Sept. 30 — and the Senate
then approved it Dec. 13. President Obama signed the bill into law Dec. 16.
The omnibus legislation would cut EPA’s enacted budget of $8.2 billion to $8.14 billion. Most of the cuts target the
agency’s science and technology fund, which pays for much of the agency’s scientific research work. That account
would drop from $759.2 million in FY14 to $734.6 million in the current year. Relevant documents are available on
InsideEPA.com. See page 2 for details.
However, despite the agency’s budget holding at nearly FY14 levels, EPA faces another staffing cut shortly after it
has implemented two controversial rounds of employee buyouts to meet its current staffing caps.
Sources in the agency’s staffing union have previously said the cuts are hindering the quality of the agency’s work
and making it harder to adequately complete work such as enforcement and writing permits.
A source at the American Federation of Government Employees, one of the unions representing EPA staff, has
previously said the union is eyeing an unfair labor practice complaint over the buyouts in order to force talks on how
work will be divided among the remaining employees after staffing reductions. Their aim is to prove that “not everything can be a priority” with a reduced workforce, the source said.
The summary of the omnibus provided by the House says it reduces EPA’s staffing to its lowest level since 1989.
According to EPA’s website, it had 14,370 full-time equivalent staff in FY89, which was a slight increase from the
14,442 FTEs in 1988 — though both levels are far short of the 18,110 peak in FY99.
Funding for most EPA programs fluctuate only slightly under the omnibus bill. Loan and grant programs for
states, including the state revolving funds (SRFs) that support water infrastructure projects, are slated to rise slightly
overall in FY15.
The State and Tribal Assistance Grant account, which includes the SRFs, EPA’s categorical grants and other funding
assistance programs, is slated to rise slightly from $3.53 billion to $3.54 billion.
Despite requests to cut the SRFs from both the Obama administration and House Republicans, those programs are
proposed to hold largely at current levels, with the clean water fund cut slightly from $1.45 billion in FY14 to $1.44
billion in FY15, and the drinking water SRF holding steady at $906.8 million.
Appropriations for categorical grants are also proposed to continue at FY14 levels, with the omnibus funding the
program at $1.054 billion.
However, appropriators opted not to include any funding for pilot programs to implement the Water Infrastructure
Finance and Innovation Authority (WIFIA), a novel water infrastructure financing system that Congress earlier this year
authorized for $350 million through 2019.
Drinking water officials had called on legislators to appropriate money for the program in FY15, emphasizing the
need for administrative funds to help EPA figure out how to implement WIFIA, but lawmakers appear to be standing by
their requests for regulators to produce implementation plans before they commit federal money to the pilots — which
utility groups called “a chicken-and-egg problem” in a letter to House appropriators.
Meanwhile, under the omnibus EPA’s Superfund account is set to hold steady at $1.08 billion, while the Environmental Programs & Management account, which funds most agency rulemaking and regulatory efforts, is set for a $7
million reduction, from $2.62 billion to $2.613 billion
Lawmakers’ decision not to include prohibitions on EPA’s power plant rule or CWA jurisdiction rule could
weaken their leverage using future spending bills to block the rules, as that legislation will not become law until months
after EPA is projected to finalize the regulations. The agency currently plans to finalize its GHG rule for new utilities in
January, issue the final GHG rule for existing utilities in June, and finalize the CWA jurisdiction rule in April.
Still, EPA’s critics were able to insert some policy provisions in the bill, including the measure that would force
EPA and the Corps to withdraw their joint interpretive CWA rule. The regulation, issued in final form in March, aimed
to clarify agricultural conservation practices deemed exempt from CWA dredge-and-fill permits, but critics say it is rife
with legal problems and other flaws.
The bill’s other policy provisions include one that would block EPA from using a controversial method for calculating wetlands mitigation requirements, and another that orders regulators to prepare a comprehensive report on climate
SUPERFUND REPORT - www.InsideEPA.com - December 22, 2014
11
Congress
change programs that the agency has pursued in FY14 and FY15.
The bill blocks regulators in Louisiana from applying the “modified Charleston method”— a modified version of an
approach first developed by the Corps’ Charleston district — which requires assessors to consider a variety of factors in
quantifying adverse impacts to ensure that impacts to wetlands function by a dredge-and-fill project are fully compensated by the mitigation plan. Republicans, in particular Sen. David Vitter (R-LA), have charged that the approach
drastically increases the cost of mitigating construction projects without significant environmental gains.
The omnibus bill also continues an existing bar on GHG reporting and permit mandates related to emissions from
livestock and manure, as well as the “Buy American” requirements for iron and steel products purchased through the
SRF programs. — David LaRoss
Senate Democrats Urge EPA To Accelerate New Rules For Facility Security
Senate Democrats are urging EPA officials to accelerate plans for potentially stricter regulations to improve security
at industrial facilities such as chemical plants in order to meet President Obama’s executive order seeking more stringent rules, though GOP senators counter EPA is moving too quickly without fully weighing industry input.
Debate over the administration’s efforts to bolster plant safety took place Dec. 11 at a joint Senate hearing, the
same day as the House approved a bill, previously cleared by the Senate, to extend by four years the existing Department of Homeland Security (DHS) Chemical Facility Anti-Terrorism Standards (CFATS). The program has survived to
date with annual reauthorizations, but the bill would ensure more permanence and make some reforms to it.
CFATS requires affected facilities to develop plans to lower risks to the public, such as reducing harm from
chemical releases from a plant that could occur following a terrorist attack. But CFATS does not regulate water treatment facilities and also does not address a slew of requirements that environmentalists want EPA and other agencies to
impose on plants to bolster their security.
EPA, DHS and the Occupational Safety and Health Administration (OSHA) are leading a federal effort to implement Obama’s Executive Order 13660, which calls for strengthening facility safety through improved government
coordination and information sharing as well as with modernized policies rules and standards. Obama issued the order
in August 2013 in response to the April 17, 2013, ammonium nitrate explosion at a fertilizer facility in West, TX, that
killed 15 people and injured more than 200 others.
Democrats, environmentalists and other supporters of stricter standards want EPA to use its Clean Air Act authority
to impose stricter requirements on facilities to develop risk mitigation plans. Some also advocate the agency requiring
companies to use inherently safer technologies (IST), which could include ending use of chlorine.
At the Dec. 11 joint hearing of the Senate Environment and Public Works Committee (EPW), and the Senate
Health, Education, Labor, and Pension Committee, EPW Chairman Barbara Boxer (CA) and fellow Democrat
Edward Markey (MA) said federal officials have done little to improve facility safety despite numerous meetings
on the EO.
“I am very concerned that despite the clear risks posed by our nation’s chemical facilities, very little progress has
been made to improve safety,” said Boxer. “No agency has proposed changes to its chemical safety program, and not a
single facility faces new federal requirements to adopt safety precautions to reduce chemical hazards.”
During the hearing, Boxer and Markey argued that hundreds of accidents have occurred at industrial facilities since
the West explosion and specifically urged federal officials to tighten regulations to address risks from certain hazardous
chemicals that have drawn regulators’ attention in the wake of West and other incidents.
For example, they reiterated calls for EPA to add ammonium nitrate to its air law Risk Management Plan (RMP)
accident prevention program — floated as an option in federal plans to implement the EO. RMPs must include an
assessment of hazards from accidental releases from facilities storing chemicals over certain thresholds, and a plan to
prevent releases.
Markey also argued that, despite the EO, federal agencies have no plan for reducing risks from chlorine, a substance used by thousands of water treatment plants to purify water, and which can also be used as a weapon.
EPA waste chief Mathy Stanislaus told Boxer that although the agency has not yet decided whether to add
ammonium nitrate to its RMP program, the agency has met all the deadlines the agency set for itself in an interagency
working group’s June report on implementing the EO. Stanislaus said EPA plans to propose regulations strengthening its
facility safety rules in 2015 and finalize regulation before Obama leaves office.
Among the deadlines EPA has met, Stanislaus said, was issuing a July request for information (RFI) to support an
update of the agency’s RMP accident prevention program, authorized by section 112(r) of the air law.
During the hearing, Republican senators — including EPW ranking member David Vitter (LA) — countered that
EPA is moving too fast and considering inappropriate changes that could worsen facility safety.
Vitter claims EPA provided insufficient time for public comment on the RFI, noting it is a very complex program.
12
SUPERFUND REPORT - www.InsideEPA.com - December 22, 2014
Congress
He urged Stanislaus to fully consider industry input and the effects of any RMP updates on small businesses.
Soon after the release of Obama’s order, Boxer pressed EPA to follow a 2002 recommendation from the Chemical
Safety Board to add ammonium nitrate to its RMP program. She also urged the agency to answer a 2012 petition from a
coalition of advocates urging EPA to use authority under its air law power to mandate IST.
Proponents of such a requirement argue that IST, usually alternative chemicals or process changes, would prevent
or reduce the consequences of an accident or attack. But Republicans and industry argue businesses already consider
IST where feasible, and that process safety decisions should be left to companies.
Federal agencies outlined plans for improving facility safety in a June 6 report, “Executive Order 13650 Actions to
Improve Chemical Facility Safety and Security — A Shared Commitment.” In the report, EPA committed to begin
modernizing existing safety regulations within one year, and said it would encourage facilities to use IST through a
series of steps including an alert and guidance, which could ultimately inform a future rule on the issue.
But during the Dec. 11 hearing, Boxer emphasized the slow progress of EO implementation, saying more than
355 industrial facility accidents have occurred since the West explosion. While the EO directed federal agencies to take
15 actions to improve facility safety, including improving oversight of ammonium nitrate, only four steps have been
completed and those primarily streamline federal processes rather than improve safety at facilities.
One in three children in the United Stats attends a school that could be impacted by an industrial facility disaster,
Boxer said, citing a recent report from the Center for Effective Government.
Markey said thousands of facilities in all 50 states put citizens at risk, citing findings from a Congressional Research Service (CRS) report issued earlier this month. The Dec. 3 CRS report also says that data on the RMP program
“are not sufficient to determine the actual scope of compliance or noncompliance with the program,” and adds that
facilities that are required to submit information to EPA may not have done so. Relevant documents are available on
InsideEPA.com. See page 2 for details.
But GOP senators argued that changes being considered under the EO are unnecessary. “Many of the actions
being contemplated as part of this order may actually result in outcomes contrary to our collective goals, and more
specifically may result in less compliance with the law and less safety at these already highly regulated facilities,”
Vitter said.
Vitter also noted that EPA has set tighter deadlines for regulatory decisions than OSHA, failing the EO’s call for
federal agencies to harmonize regulations. The senator also outlined his concerns over the process in a Dec. 11 letter he
and fellow EPW Republican Sen. James Inhofe (OK) sent to Stanislaus.
The letter urges EPA to seek industry advice from a Clean Air Act Advisory Committee (CAAAC) panel, and also
convene a Small Business Regulatory Enforcement Fairness Act (SBREFA) review of any new requirements.
Stanislaus told Vitter that EPA is still considering whether to seek advice from a SBREFA panel. But regarding the
request for seeking CAAAC input, late last month, EPA denied an industry request to convene a currently inactive panel
of its CAAAC, saying it would “stretch already extremely thin resources.”
At the hearing, Sen. John Barrasso (R-WY) reiterated concerns from an October letter he sent EPA that warned that
adding ammonium nitrate to the RMP would unnecessarily hurt industry economically and lead to job losses. He argued
that storage of the substance is already covered under existing OSHA regulations.
EPA in a Dec. 10 response to Barrasso said agency staff is reviewing comments on the RFI with a focus on protecting emergency responders and the public, and ensuring any gaps in federal regulation are addressed. EPA also says it
will work closely with other agencies to ensure there is no overlap or duplication in regulation.
Meanwhile, the House Dec. 11 approved by voice vote the Senate-approved version of H.R. 4007, a bill reauthorizing the CFATS program for another four years. The bill now heads to Obama for his signature. If signed into
law by the president, the bill would also establish a voluntary new expedited approval procedure for site security plans
for certain chemical facilities, according to a statement from the Senate Homeland Security Committee.
It would also improve information sharing between federal, state and local officials, and enhance DHS’ ability to
identify high-risk chemical facilities that otherwise go unmonitored, the statement says. The bill also preserves an
exemption for water treatment facilities, which DHS and some House Democrats have sought to remove.
Until now CFATS has been operating on temporary authority provided by annual appropriations bills, which
has created problems, including during the government shutdown last year, when CFATS’ authority lapsed, leaving
more than 4,000 high-risk facilities without federal security oversight — the first lapse of CFATS since the
program started.
The American Chemistry Council issued a statement backing the bill, saying HR 4007 provides “a long-term
solution for regulating security that will help create a stronger foundation for CFATS.”
Additionally, the statement says the bill will “help the Department improve its outreach to chemical facilities and
the process for vetting personnel.” — Dave Reynolds
SUPERFUND REPORT - www.InsideEPA.com - December 22, 2014
13
Litigation
PRPs Seek High Court Review Of Limits On CERCLA 107 Cost Recovery
Potentially responsible parties (PRPs) at an Ohio landfill site are asking the Supreme Court to review a federal
appellate Superfund decision in order to lift limits endorsed by various circuit courts — and backed by EPA — on
plaintiff-PRPs’ use of the law’s section 107 cost recovery mechanism, which generally includes a more-favorable statute
of limitations than other provisions.
In a Nov. 14 cert petition, the PRPs — three large industrial manufacturers — are also asking the court to settle a
split among circuit courts over the statute of limitations that applies to Superfund section 113 contribution suits. The
petition is available on InsideEPA.com. See page 2 for details.
The companies, Hobart Corporation, Kelsey-Hayes Company and NCR Corporation, are asking the justices to
review a July 14 decision from the U.S. Court of Appeals for the 6th Circuit in Hobart Corp., et al. v. Waste Management of Ohio et al., which forced the parties to use rights in section 113, which generally allows for a three-year statute
of limitations, rather than section 107’s six-year limitation.
The 6th Circuit “departed from the plain language of the statute in two ways, failed to consider controlling precedent from this Court, stood the polluter pays principle on its head, and also created a split among the Circuits as to the
applicable statute of limitations when one PRP sues another PRP in contribution,” the petitioners say.
The petitioners had voluntarily entered into an administrative settlement agreement and order, or AOC, with EPA to
conduct a remedial investigation and feasibility study (RI/FS) at the South Dayton Dump and Landfill Site in Ohio.
The petitioners sought to make section 107 cost recovery claims against other, non-settling PRPs over their cleanup
costs at the site, even though the petitioners had signed an AOC with EPA. Signing such an agreement would typically
limit the PRPs to bringing contribution claims under section 113 of the Comprehensive Environmental Response,
Compensation & Liability Act (CERCLA).
Cost recovery under section 107 is often favored by a plaintiff-PRP as it generally is considered to have a longer
statute of limitations for filing suits against other PRPs than the statute of limitations often ascribed to section 113, and
because it provides for joint and several liability, rather than an equitable distribution of costs under section 113.
But the plaintiffs argued to the 6th Circuit that because the AOC they signed was only an agreement to conduct an
RI/FS, and not further cleanup work, that work does not trigger the section 113 statute of limitations.
The confusion over when PRPs may pursue section 107 claims stems from the Supreme Court’s 2007 ruling in
United States v. Atlantic Research Corp., where the high court said both section 107 and 113 claims are available to
PRPs, depending on the circumstances.
In Atlantic Research, while the high court said a PRP that had incurred response costs without having been sued by
or settled with EPA could file suit under section 107, the court expressly declined to decide whether a PRP that incurs
response costs under a settlement with EPA, and thus meets the preconditions for a section 113 contribution claim, may
nonetheless sue under section 107, the Department of Justice said in a brief filed in the 6th Circuit case on EPA’s behalf.
In Hobart, the 6th Circuit found that the AOC resolved at least some of the plaintiffs’ liability, thereby
making it an “administrative settlement” within the meaning of Superfund section 113(f)(3)(B), which triggers authority
under section 113 for a PRP to pursue contribution suits against other PRPs (Superfund Report, July 21).
The 6th Circuit also joined with other circuit courts in holding that sections 107 and 113 provide mutually exclusive
remedies.
In determining which section is applicable, the 6th Circuit found that CERCLA’s “text and structure lead us to
conclude that PRPs must proceed under [section] 113(f) if they meet one of that section’s statutory triggers.”
The court says, “Therefore, it is sensible and consistent with the text to read [section] 113(f)’s enabling language to
mean that if a party is able to bring a contribution action, it must do so under [section] 113(f), rather than [section]
107(a).” The decision appeared to be a win for EPA, which argued as an amicus party that a ruling that opens the door
to allowing such PRPs to pursue section 107 claims would bring difficult challenges to the agency in achieving cleanups
at Superfund sites, making it less likely for PRPs to settle with EPA and begin cleanup.
Specifically, the Hobart court found any PRP with a potential contribution claim for sharing cleanup costs “‘must’
proceed in contribution, even though CERCLA [section] 113(f)(3)(B) plainly says ‘may,’” the petitioners say. They
argue this contradicts Supreme Court precedent as to how the term “may” is construed and drastically limits the reach of
Atlantic Research, which held parties conducting voluntary cleanups could bring a 107 action and are not limited to
contribution claims.
Hobart and the other petitioners argue in their Nov. 14 petition that the Supreme Court should review the decision,
as it is a case “of exceptional importance,” noting the large number of sites covered by AOCs — 1,777 — and that these
sites involve hundreds of millions of dollars. “The ability of parties entering into AOCs to share these costs with other
PRPs is essential to encourage settlement and to avoid unfair and in some cases potentially ruinous liability,” the
14
SUPERFUND REPORT - www.InsideEPA.com - December 22, 2014
Litigation
petition says.
Further, it says, “the combination of the two doctrines adopted by the Sixth Circuit, that (a) parties entering into
AOCs that resolve their liability to the government can only sue in contribution and can never bring a cost recovery
action (because ‘may’ means ‘must’); and (b) when they bring a contribution action they are subject to the shortest
possible statute of limitations (which the Sixth Circuit acknowledged was not triggered but applied anyway), constitutes
a devastating one-two punch to the polluter pays principle.”
The former conclusion by the circuit court, which it says “drastically narrows” which parties can avail themselves
of Atlantic Research, “has gone viral infecting at least six Circuit Courts of Appeals, none of which considered this
Court’s precedents as to how ‘may’ is to be construed.”
Further, the latter doctrine departs from precedents in the 5th and 10th Circuits, as well as one in the 6th Circuit,
with the Hobart court calling those interpretations “no longer good law,” the petition says.
“Certiorari should be granted to resolve this split in the Circuits and to review the two dubious doctrines that ‘may’ means
‘must’ . . . and that the shorter CERCLA [section] 113(g)(3) contribution statute applies to ‘all’ contribution actions, including
actions to recover response costs covered by the plain language of the longer statute [of limitations], [section] 113(g)(2).”
On the first issue, the petitioners turn to the 6th Circuit’s interpretation of section 113(f)(3)(B), which says
parties who have resolved their liability with the United States or a state for cleanup costs in an administrative or
judicially approved settlement “may seek contribution from any person who is not party to a settlement. . .”
The petitioners say the issue of whether “may” in that clause means “must” and therefore parties signing AOCs
must bring a 113 contribution action and “may not” bring a 107 action has been addressed by six circuit courts since
Atlantic Research. All of these courts have interpreted “may” to mean “must,” and therefore limited the PRPs to filing
contribution suits, and barring them from making use of 107, they say.
But the petitioners say the high court’s precedents establish that “may” does not equate to “must,” absent any
compelling legislative history or structural reasons for interpreting the law otherwise. For instance, in the 2000 decision
in Cortez Byrd Chips, Inc. v. Bill Harbert Construction Co., the court “held that the venue provisions of the Federal
Arbitration Act were permissive, not mandatory,” concluding “that ‘may’ meant ‘may,’ not ‘must,’” the petitioners say.
Further, the petition says the amendments to CERCLA indicate Congress “sought to confirm that PRPs had a right
of contribution under [section] 113(f). There is nothing to show that Congress intended to take away the right granted in
the original statute for ‘any other person’ to sue under [section] 107(a), or to make the use of [section] 113(f) mandatory.”
Also, the “‘may’ means ‘must’ doctrine renders Atlantic Research “a ‘dead letter’ as to any PRP that enters into an
AOC that resolves its liability to the government,” the petitioners say. Under Atlantic Research, a PRP that voluntarily
incurs response costs, without having been sued, could bring a 107 action and is not limited to 113 actions, the petitioners say. But the Hobart ruling would close the door on such parties taking 107 actions, they say.
On the statute of limitations issue, the petitioners say the 6th Circuit applied the wrong statute of limitations reading
section 113(g)(3), titled “Contribution,” to apply to “all” administrative settlements, when they say the triggering events
under that provision are in cases where administrative settlements are related to de minimis settlements or cost recovery
settlements only involving the payment of money. These are not the same as incurring costs to implement cleanup
actions, they say. Section 113(g)(3) applies a shorter statute of limitations for recouping costs — three years — while
the petitioners argue section 113(g)(2), which allows for a longer statute of limitations of up to six years, should apply.
Actions to recover response costs are “covered by the plain language of the longer statute, [section] 113(g)(2),” they say.
“[E]xtending CERCLA [section] 113(g)(3) to ‘all’ administrative settlements, as the Sixth Circuit has done,
destroys the symmetry of Congress’ wording of CERCLA [section] 113(g)(3)(B) and its wording of CERCLA [section]
122(i),” which governs settlement procedures, the petitioners say. — Suzanne Yohannan
Advocates Join State In Defending Oil Spill Liability Law From Railroad Suit
Several environmental and other advocacy groups have filed an amicus brief defending new state oil spill response
planning and financial responsibility rules from a lawsuit filed in federal court by the railroad industry, arguing in part
that a “dramatic surge” in crude oil trains coming into the state makes it even more important that the rules are kept in
place to protect the environment, particularly water quality.
“The railroads have opened the floodgates of Bakken crude and Canadian tar sands oil to California, but are
running from accountability should any mishap or disaster happen along the tracks,” said Tamara Zakim, an attorney
with Earthjustice, which filed the amicus brief on behalf of the advocacy groups, according to a Dec. 5 press release.
“The state is well within its authority to demand better from any company that decides to ship explosive oil across the
countryside, waters and backyards of Californians.”
The brief was filed Dec. 5 on behalf of San Francisco Baykeeper, Communities for a Better Environment, the Sierra
Club, California Sportfishing Protection Alliance, Center for Biological Diversity, Association of Irritated Residents and
SUPERFUND REPORT - www.InsideEPA.com - December 22, 2014
15
Litigation
the Asian Pacific Environmental Network.
On Oct. 7, the Association of American Railroads, Union Pacific Railroad Co., and BNSF Railway Co. sued the California Office of Spill Prevention & Response in U.S. District Court for the Eastern District of California, claiming that they are
exempt from the requirements of a state law enacted earlier this year, SB 861, according to federal preemption statutes. A
hearing on a motion by the railroads for a preliminary injunction on the requirements is scheduled for Jan. 15.
SB 861 adds inland waters to California’s oil spill law, which originally covered only coastal and marine waters,
according to the Earthjustice brief. In addition, SB 861 imposes obligations on oil facilities, including two at issue in the
lawsuit: to prepare a plan to clean up a worst-case oil spill; and to demonstrate financial ability to clean up such an oil
spill, the brief says.
The environmentalists claim in the amicus brief that federal laws governing the subject matter in the case — the Oil
Pollution Act of 1990 (OPA) and the Clean Water Act (CWA) — preserve state authority to impose additional requirements and liability beyond what is mandated under federal law. “This preservation of state police powers recognizes the
deeply rooted role states play in protecting their residents and territories from oil spills,” the brief states. The brief is
available on InsideEPA.com. See page 2 for details.
They further challenge the railroads’ primary claim that the Federal Railroad Safety Act (FRSA) and Interstate
Commerce Commission Termination Act (ICCTA) trump exemptions from preemption contained in the other federal
and state laws at issue when they are applied to railroads.
“In short, the railroads argue for federal preemption because SB 861 touches on rail safety,” the brief states. “Their
argument fails, however, because FRSA’s preemption provision extends only to federal regulations governing train
tracks, train cars, and rail operations that specifically and entirely subsume the subject regulated by a state. Here, no
such FRSA regulation exists. Moreover, the railroads’ argument cannot be reconciled with the express non-preemption
clauses in the statute under which [the Department of Transportation] promulgated the only federal regulation on the
subject matter covered by SB 861.”
In addition, “Unlike the regulations at issue in the cases embraced by the railroads in arguing for ICCTA preemption, SB 861 falls squarely within the OPA and CWA non-preemption clauses,” the brief adds. “Indeed, the Ninth Circuit
has indicated that ICCTA preemption withers when it intrudes into the state authority expressly preserved by the OPA
and CWA non-preemption clauses.”
The environmentalists claim that inland water oil spills pose grave risks to California’s drinking water supplies, its
rivers used for recreation, and its wildlife, including endangered salmon, that depend on clean rivers and streams for
their survival.
“Californians have the right to protect our bay, marshes, and wild river canyons from the threat of crude by rail,”
said Deb Self, executive director of San Francisco Baykeeper, the press release adds. “We fought hard for these new
protections and we’re going to see that they’re enforced.”
A railroad industry spokesman declined to comment on the amicus brief.
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SUPERFUND REPORT - www.InsideEPA.com - December 22, 2014
Risk Assessment
Olden Hints At Plans To Update Chronically Outdated IRIS Analysis Database
DENVER — Ken Olden, chief of EPA’s influential Integrated Risk Information System (IRIS) chemical toxicity
assessment program, has plans to address the longstanding and chronic issue of outdated agency assessments, in a new
proposal he has presented to EPA leadership, he said during a roundtable discussion with stakeholders here.
The IRIS program has long held the goal of updating its existing assessments at least once a decade. However, that
goal is rarely met, as the program in recent years has completed just a handful of assessments per year. In its 2008
review, the Government Accountability Office declared the program so slow-moving as to be nearly obsolete. And an
industry representative told Olden at the Dec. 9 roundtable that one reason regulated industry so stridently opposes
finalizing assessments they consider overly conservative is because they know it will be years before EPA updates the
assessment.
Olden announced that he intends to remove some 140 IRIS assessments from the database because they are
outdated. Olden said that this leaves some 350 assessments in the database, for which he said he has formed a plan for
updating.
“[E]very time I go out, I hear about all these chemicals on the IRIS database have been there 10 or 20 years, and
they’re outdated. Well, they are,” he said. “And we are going to do something about that. Now, I’ve made a proposal to
the acting assistant administrator as to how to get that done, using something like a SWAT team that’s absolutely
dedicated to dealing with the backlog. We aren’t going to use this team to help us with our current assessments, but to
look backwards, and go back to the agency and say, of these ... chemicals remaining, which ones should we reassess
sooner than later. . . . We hope to announce that sometime soon.”
He declined to provide further details, explaining that he has presented the plan to Lek Kadeli, the acting assistant
administrator for EPA’s research office, and is awaiting his decision.
Olden’s plan may be impacted by the budget recently passed by Congress, as an agency source indicated that Olden
hopes to seek new staff to form the SWAT team, rather that reassign existing IRIS staff and draw them away from their
ongoing assessments. But the new FY15 budget cuts some $60 million from EPA’s funding, mainly through staffing
reductions and cuts to the agency’s science and technology fund, which funds much of the agency’s scientific research.
That account would drop from $759.2 million in FY14 to $734.6 million in the current year should President Obama
sign it as expected at press time.
Olden, the director of EPA’s National Center for Environmental Assessment, and Vincent Cogliano, acting director
of the IRIS program, took questions from stakeholders Dec. 9 during the Society for Risk Analysis annual meeting here.
Among those who commented to IRIS leaders was Anne LeHuray, executive director of the Pavement Coatings Technology Council. She suggested that long delays in updating IRIS assessments has led to industry pushback and efforts to
delay pending assessments for new research.
“I think it feeds into a part of the fear . . . that some of us who are on my side of the table feel, which is why it’s
really good to hear you talking . . . because a lot of us think that if an assessment gets finalized, it’ll be 100 years before
it’ll ever be looked at again regardless of advances in the science,” LeHuray said. “Thank you, I think this initiative that I’ve heard for the first time just now of establishing a process for deciding when something needs to be
re-reviewed is really important for us to think we know it’s good enough now and we’ll have a shot at doing
something more . . .”
Olden replied, “I think the fear you articulate is exactly the motivation for putting in place a strategy to
make sure the database stays current. I think a lot of the pushback that we get is due to the fact that if we assess a
chemical and put it on the list that it’s not going to be revisited for . . . 20 years. And that is a fear because science is
ever evolving. And there could be information that comes out one year after we calculate an RfD or an RfC or a cancer
slope factor and do we change that if the science changes the next year or two?”
An RfD, or reference dose, refers to the amount of a substance EPA says can be ingested over a lifetime without
adverse effects. An RfC, or reference concentration, is a similar calculation for inhaled substances.
Olden added that he has committed to ensuring that assessments completed during his tenure will remain current,
and reminded LeHuray that he has proposed a plan “to make sure we don’t ever get out of date again.”
Olden’s plan to ensure the database keeps up to date is the latest effort to keep the influential database
containing some 550 assessments current. As more research is performed on chemicals’ toxicity, assessments can
become outdated if new information changes the understanding of how toxic the chemical is, or how it moves
through the body.
A 2009 IRIS Update Project pilot effort to address outdated assessments in the database by performing updates of
groups of five chemicals together did not appear to move forward. At the time, the chemical manager in charge hoped to
complete updates to 15 assessments in the pilot, and predicted the ability to move a batch of five chemicals through a
SUPERFUND REPORT - www.InsideEPA.com - December 22, 2014
17
Risk Assessment
streamlined update process in five or six months. That initiative was first proposed in 2007 by former NCEA chief Peter
Preuss, before former research chief Paul Anastas moved Preuss to a new role as chief innovation officer for the agency.
Olden also pleaded with stakeholders to help him reduce the politics in an often fraught process, particularly during
the peer reviews of IRIS assessments. “Collegiality is very important, and we’ve spent a lot of time, I’ve spent a lot of
time, we’ve gone around town meeting with all of you,” he said. “What we do in NCEA is science . . . We’re a scientific
enterprise. We’re not political. . . . We’ve got to get politics out of what we do. And that means if we send a document
out for peer review, peer reviewers tell us they don’t like it . . . we aren’t going to question that, we are going to do it to
the satisfaction of the peer reviewers. So I ask you the community, that has to be the standard.”
Olden kicked off the IRIS discussion by informing listeners that he is preparing to initiate “a second wave of
enhancements to improve the IRIS program,” following his first two years’ tenure at EPA and his efforts to increase the
program’s transparency, openness to stakeholders and scientific rigor.
Olden acknowledged, however, that efforts in this second wave of improvements will be “more challenging”
outlining examples such as “developing tools for systematic review, measuring and communication uncertainty . . . we
still have a ways to go. The tools are technologies [that] are just evolving. What we’re going to do ultimately is apply
some of the tools. If we continue on this same path, we will succeed in transforming IRIS in the next two to three years.”
Olden and Cogliano fielded questions about such scientific challenges, including communicating the uncertainty
inherent in the assessments and providing central tendency estimates of risk numbers in addition to upper bound
estimates. Olden and Cogliano indicated that both efforts are in their future plans.
“We have to figure out how to communicate … uncertainty,” Olden said. “Our scientific credibility depends on that.
I don’t know that anyone knows how to do it, but we’ll have to learn.”
Regarding the question about presenting the central estimate, in addition to the upper bound estimate in risk
assessments, Cogliano noted that there are some scientific challenges to presenting the central tendency estimates, which
he said are “sometimes very unstable” in addition to providing the challenge of which to present when using animal
toxicity data. “People that do go to the public have to have some confidence of safety,” in their risk estimates, Cogliano
added. “We will be showing both” risk estimates.
Olden also reiterated his plans to craft a process and rules for when a chemical should undergo a second peer
review. And he indicated that the program’s multi-year plan is “just weeks” from release. — Maria Hegstad
Fracking
Groundwater Monitoring Plan Sparks Battle Over First-Time Fracking Rules
Environmentalists and oil companies are butting heads over the extent of groundwater monitoring that is necessary
for hydraulic fracturing and acid well stimulation treatments to ensure protection of the environment and public health,
in continuing debate over the development of first-time California water board regulations.
While environmentalists are generally pushing for site-specific monitoring in many cases, industry groups and their
contractors argue that regional or area-wide monitoring plans that cover multiple well stimulation treatments are
adequate to protect groundwater resources.
In addition, oil and gas industry representatives are opposing environmentalists’ position that the rules should
extend beyond fracking and acid well stimulation treatments to wastewater disposal sites, such as sumps.
The clashing positions were most recently on display at a Dec. 11 public meeting on the development of the
groundwater monitoring model criteria hosted by Lawrence Livermore National Laboratory (LLNL), which has been
contracted by the California Water Resources Control Board (WRCB) to help develop the rules. The U.S. Geological
Survey (USGS) is also helping with the effort.
Under the 2013 California fracking law, SB 4, WRCB is required to develop the model groundwater monitoring
criteria by July 1, 2015, in consultation with the state’s Division of Oil, Gas & Geothermal Resources (DOGGR). The
rules are slated to take effect Jan. 1, 2016.
Interim DOGGR well stimulation regulations require well operators to submit a groundwater monitoring plan as
part of their well stimulation treatment notices. A well operator may alternatively request an exclusion from the requirement to submit a groundwater monitoring plan if the absence of protected water can be demonstrated, according to WRCB.
During the Dec. 11 meeting, environmentalists expanded on their arguments that SB 4 “sets a minimum standard for
monitoring” and that WRCB should ultimately adopt rules that establish the “broadest possible monitoring,” according
to a slide presentation by several groups, including Clean Water Action, the Center on Race, Poverty & the Environment, Sierra Club and Environmental Working Group.
For example, state officials should require groundwater monitoring near all oil and gas activities and potential
18
SUPERFUND REPORT - www.InsideEPA.com - December 22, 2014
Fracking
pathways for groundwater contamination, rather than limiting it to well stimulation treatments, the environmentalists
contend. These would include production wells, disposal wells, enhanced oil recovery wells, disposal sumps and drilling
mud sumps. Relevant documents are available on InsideEPA.com. See page 2 for details.
In addition, aquifers that are deemed exempt from current DOGGR monitoring rules should be included in regional
monitoring plans under the new WRCB regulations, the groups argue. They claim that previously approved exemptions
“have proven to be problematic” for underground injection control implementation in some cases. Further, WRCB has
not historically given its input on whether the exemptions are based on adequate criteria, state officials need to understand actual water quality levels in exempt aquifers and water users should be identified and prioritized for protection,
the groups assert.
The environmental groups’ “basic push is for industry to make the monitoring as narrow as possible,” says one
environmentalist. However, it appears that “everyone else in the room seems on board with expanding monitoring to
broad oil field activities,” the source adds, referring to LLNL and state regulators.
But oil and gas industry representatives are opposing the inclusion of activities that are not well stimulation
treatments and claim that pending DOGGR regulations per SB 4 will protect groundwater through rigorous permitting,
testing and reporting.
According to Terraphase Engineering, Inc., an industry contractor that made a presentation during the Dec. 11
workshop, DOGGR is notified of any well stimulation treatment well
integrity problems at the time of occurrence. Treatment activities must cease
immediately, with repairs conducted in “real time,” the company says in its
The environmental
presentation for the meeting.
groups’
“basic push is
WRCB should lay out a set of conditions that are necessary for monitoring to even be required for well stimulation treatments, according to the
for industry to make the
company, including when potential pathways for groundwater contamination
monitoring as narrow as
are present within a certain distance.
possible.”
The industry also recommends that the rules establish a preference for
— environmentalist
area-wide groundwater monitoring versus project-specific monitoring, with
operators being able to choose between the options based on site-specific
conditions.
Area-wide monitoring could be defined as an oilfield or a portion of an oilfield. The benefits of area-wide monitoring include providing a network of strategically located monitoring wells; increasing the likelihood of detecting groundwater impacts; providing a “sentry” approach to evaluate if impacted groundwater is leaving the area; and potentially
establishing an effective system for future well stimulation treatments by providing a robust, long-term data set suitable
for statistical evaluation that is more representative than a well-by-well approach, according to the Terraphase Engineering presentation.
While single-project or well-by-well monitoring could be accomplished if there is only one well stimulation
treatment proposed, “typically more than one well stimulation treatment event is planned and permitted at a time,” the
industry contractor says.
In addition, although single-project monitoring “may provide early detection, it is less likely to detect groundwater
impacts than monitoring on an area-wide basis” because of challenges with detecting releases close to a source given the
nature of potential pathways, the company adds.
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SUPERFUND REPORT - www.InsideEPA.com - December 22, 2014
19
Coal Ash
EPA Regulates Coal Ash As Solid Waste, Partially Delegating Enforcement
EPA’s final coal ash disposal rule released Dec. 19 regulates ash as a solid waste under the Resource Conservation
& Recovery Act (RCRA) — a win for industry and many states but a loss for environmentalists who sought regulation
of ash as a RCRA hazardous waste — while partially delegating to states on enforcing the rule’s requirements.
“EPA is taking action to protect our communities from the risk of mismanaged coal ash disposal units, and putting
in place safeguards to help prevent the next catastrophic coal ash impoundment failure, which can cost millions for local
businesses, communities and states,” EPA Administrator Gina McCarthy said in a press release announcing the rule.
“These strong safeguards will protect drinking water from contamination, air from coal ash dust, and our communities
from structural failures, while providing facilities a practical approach for implementation.”
The final rule, mandated for release Dec. 19 under a judicial deadline, applies RCRA subtitle D provisions governing
solid waste to the material, as industry and states had sought, but will also leave facilities open to citizen suits despite calls by
those same stakeholders to avoid such a scenario. The rule is available on InsideEPA.com. See page 2 for details.
Speaking on a Dec. 19 press call announcing the rule, McCarthy said, “The states have an ability now to integrate
the management of these facilities with other solid waste facilities in their master planning process,” but that the rule
“will allow public citizens to sue if they are not following the law as we have outlined it.”
“Now that the systems know that they are on the hook, they will want the certainty of going through a state process
and working with EPA,” she added.
However, in a win for environmentalists, EPA is also applying the standards to legacy sites — impoundments that
still hold waste but have been closed to new shipments of coal ash — but only when the impoundments are located at
active power plants.
Speaking on the Dec. 19 press call, EPA waste chief Mathy Stanislaus said, “We don’t believe we have legal
authority” over impoundments at closed power plants.
Environmentalists had threatened to sue EPA if it excluded legacy sites from the final rule, arguing that RCRA
includes passive leaks in its definition of “disposal” and that the agency lacks discretion to exclude such leaks from regulation.
The rule also sets requirements for operators to prevent “fugitive” emissions of dust from storage facilities into
surrounding areas, backing environmentalists’ claims that such requirements are necessary to protect public health near
the sites.
The regulation of some legacy sites could raise the possibility that Republicans will revive 2013 legislation that
would force EPA to regulate coal ash as a solid waste with states taking primary enforcement authority, which industry
touted as a potential backstop against a decision by EPA to apply hazardous waste or inflexible enforcement provisions
in the final rule.
Ash reuse and utility industry observers have previously suggested that H.R. 2218, which cleared the House last
year, could be revived thanks to Republican gains in the midterm elections that make it likely that the bill would easily
clear the 114th Congress in 2015, and because the White House never threatened a veto of the prior legislation.
Ahead of the rule’s release, representatives from the utility sector, coal ash reuse industry, non-utility industries, environmental groups and state regulators met with EPA and the White House on the regulation.
During the meetings with EPA and White House Office of Management & Budget (OMB) regulators, the representatives pitched ideas ranging from advocates’ preferred option of regulating ash as hazardous under subtitle C or RCRA
to non-power sector groups cautioning against any regulations of non-utility coal ash.
For instance, at a Nov. 10 meeting with administration officials, environmentalist participants argued that while
reuse of coal ash has decreased since EPA announced plans to craft a RCRA disposal rule, the drop is due to the general
depression of the construction market rather than tied to the rulemaking.
However, at a Dec. 17 press conference in Washington, D.C., discussing ash reuse statistics for 2013, American
Coal Ash Association executive director Thomas Adams argued that declining use of coal ash in materials such as
concrete and wallboard is due to the uncertainty over the content of EPA’s then-unreleased rule, and said a regulation
labeling the substance as hazardous would permanently stigmatize its use.
The Association of State and Territorial Solid Waste Management Officials and Environmental Council of the
States, meanwhile, jointly held a meeting with EPA and OMB Nov. 21 at which they reiterated states’ preference for a
rule categorizing coal ash as solid waste under subtitle D, rather than a subtitle C rule.
The groups, which represent state environmental regulators, also urged EPA to give states leeway to craft their own
enforcement regimes rather than directly applying federal standards in addition to existing state rules.
Meanwhile, university researchers in recent days also made final presentations to EPA and OMB, though those
presentations focused on highlighting the potential dangers from contamination of waterbodies or groundwater supplies
rather than recommending a particular policy position. — David LaRoss
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SUPERFUND REPORT - www.InsideEPA.com - December 22, 2014