Hazardous Waste: Remediation Waste Requirements Can Increase the Time and
Cost of Cleanups (Letter Report, 10/06/97, GAO/RCED-98-4).

In the United States today, tens of thousands of sites are contaminated
with hazardous waste from industrial activities. The Environmental
Protection Agency (EPA) estimates that the nation will spend hundreds of
billions of dollars to clean up these locations. In the late 1980s, EPA
discovered that requirements imposed by the Resource Conservation and
Recovery Act may be increasing costs and delaying the progress of some
hazardous waste cleanups. Both Congress and the administration have put
forth proposals to remedy these impediments. This report discusses (1)
the ways, according to EPA, state program managers, and industry
representatives, that the act's requirements can affect cleanups and (2)
the steps that EPA has taken to address impediments.

--------------------------- Indexing Terms -----------------------------

 REPORTNUM:  RCED-98-4
     TITLE:  Hazardous Waste: Remediation Waste Requirements Can 
             Increase the Time and Cost of Cleanups
      DATE:  10/06/97
   SUBJECT:  Environmental law
             Pollution control
             Waste management
             Environmental policies
             Hazardous substances
             Federal/state relations
             Land management
IDENTIFIER:  Superfund Program
             
******************************************************************
** This file contains an ASCII representation of the text of a  **
** GAO report.  Delineations within the text indicating chapter **
** titles, headings, and bullets are preserved.  Major          **
** divisions and subdivisions of the text, such as Chapters,    **
** Sections, and Appendixes, are identified by double and       **
** single lines.  The numbers on the right end of these lines   **
** indicate the position of each of the subsections in the      **
** document outline.  These numbers do NOT correspond with the  **
** page numbers of the printed product.                         **
**                                                              **
** No attempt has been made to display graphic images, although **
** figure captions are reproduced.  Tables are included, but    **
** may not resemble those in the printed version.               **
**                                                              **
** Please see the PDF (Portable Document Format) file, when     **
** available, for a complete electronic file of the printed     **
** document's contents.                                         **
**                                                              **
** A printed copy of this report may be obtained from the GAO   **
** Document Distribution Center.  For further details, please   **
** send an e-mail message to:                                   **
**                                                              **
**                                            **
**                                                              **
** with the message 'info' in the body.                         **
******************************************************************


Cover
================================================================ COVER


Report to Congressional Requesters

October 1997

HAZARDOUS WASTE - REMEDIATION
WASTE REQUIREMENTS CAN INCREASE
THE TIME AND COST OF CLEANUPS

GAO/RCED-98-4

Hazardous Remediation Waste

(160390)


Abbreviations
=============================================================== ABBREV

  CAMU - corrective action management unit
  EDF - Environmental Defense Fund
  EPA - Environmental Protection Agency
  HWIR-Media - Hazardous Waste Identification Rule for Contaminated
     Media
  RCRA - Resource Conservation and Recovery Act

Letter
=============================================================== LETTER


B-278002

October 6, 1997

The Honorable Trent Lott
Majority Leader
United States Senate

The Honorable John H.  Chafee
Chairman, Committee on Environment
 and Public Works
United States Senate

The Honorable Robert C.  Smith
Chairman, Subcommittee on Superfund,
 Waste Control and Risk Assessment
Committee on Environment
 and Public Works
United States Senate

In the United States today, tens of thousands of sites are
contaminated with hazardous waste from past and current industrial
activities.  The Environmental Protection Agency (EPA) has estimated
that the nation will spend hundreds of billions of dollars to clean
up these sites.  In the late 1980s, EPA discovered that certain
requirements imposed by the Resource Conservation and Recovery Act
may be increasing the costs and delaying the progress of some
hazardous waste cleanups.  Both the Congress and the administration
have developed proposals to reduce these impediments. 

To help the Congress evaluate these proposals, you asked us to
provide information on (1) the ways, according to EPA and selected
state program managers and industry representatives, that the
Resource Conservation and Recovery Act's requirements, when applied
to waste from cleanups (often referred to as remediation waste),
affect cleanups and (2) the actions EPA has taken to address any
impediments. 


   RESULTS IN BRIEF
------------------------------------------------------------ Letter :1

Three key requirements under the Resource Conservation and Recovery
Act that govern hazardous waste management--land disposal
restrictions, minimum technological requirements, and requirements
for permits--can have negative effects when they are applied to waste
from cleanups.  The requirements have been successful at preventing
further contamination from ongoing industrial operations, according
to EPA cleanup managers.  However, when the requirements are applied
to remediation waste, which includes sludge, debris, and contaminated
soil or groundwater that is excavated or moved during a cleanup, they
can pose barriers to cleanups.  Because much remediation waste does
not pose a significant threat to human health and the environment,
subjecting it to these three requirements in particular can compel
parties to perform cleanups that are more stringent than EPA, the
states, industry, or national environmental groups believe are
necessary to address the level of risk, increasing the time and cost
of cleanups.  Consequently, EPA and state program managers and
industry representatives maintain, parties often try to avoid
triggering the requirements by containing waste in place or by
abandoning cleanups entirely. 

In the late 1980s, when establishing national Superfund\1 guidance,
EPA recognized that these three requirements would make some cleanups
more difficult.  Accordingly, it began developing policy and
regulatory alternatives to give parties more flexibility in dealing
with the requirements.  However, these alternatives do not address
all of the impediments to cleanups, and some state cleanup managers
were not always aware of or did not fully understand the
alternatives, while others found them cumbersome to use and
inefficient.  Industry representatives were also concerned that
because of the ways that some states are using these alternatives,
EPA or a third party may challenge whether the cleanup fully meets
the Resource Conservation and Recovery Act's requirements,
necessitating further cleanup action at some sites.  To allay these
concerns, in 1996, EPA proposed a new rule to comprehensively reform
remediation waste requirements.  The rule included a range of options
to exempt some or all remediation waste from federal hazardous waste
management requirements and to give the states more waste management
authority.  EPA had estimated that these options could save up to
$2.1 billion a year in cleanup costs.  However, EPA recently decided
that because stakeholders disagree over whether the agency can exempt
remediation waste from the requirements under current law, the agency
would face a prolonged legal battle over the new rule.  Anticipating
that, among other things, such a battle would be time-consuming and
resource-intensive, further delaying cleanups, the agency has
recently announced its intention to abandon its attempts to revise
the requirements.  Although areas of disagreement may still need to
be addressed, EPA has concluded that the best way to achieve
comprehensive reform is to change the underlying cleanup law. 


--------------------
\1 The Congress established the Superfund program under the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended.  The Superfund program is directed primarily at
addressing contamination resulting from past activities at inactive
or abandoned sites or from spills that require emergency action.  The
Corrective Action Program, under the Resource Conservation and
Recovery Act, primarily addresses contamination at operating
industrial facilities. 


   BACKGROUND
------------------------------------------------------------ Letter :2

The Resource Conservation and Recovery Act (RCRA), passed in 1976 and
substantially amended in 1984, establishes a national policy that
hazardous waste be generated, treated, stored, and disposed of so as
to minimize present and future threats to human health and the
environment.  RCRA, among other things, governs the management of
hazardous waste from its generation to its final disposal so as to
prevent future contamination.  According to many stakeholders, the
law has accomplished this purpose. 

RCRA also contains provisions governing the identification and
listing of hazardous waste.  Under these provisions, EPA has
established criteria for identifying waste that should be classified
as hazardous.  For example, EPA has listed in its regulations
specific types of waste that are to be considered hazardous.  Some
types are listed by their source, that is, by the specific industrial
processes that produce the waste, such as electroplating, which
generates sludge from wastewater treatment.  Other types are defined
by certain characteristics that make the waste hazardous, such as
whether it ignites easily. 

RCRA's regulations govern all hazardous waste, regardless of where or
how it is generated.  Waste from both current and past industrial
operations is regulated.  The requirements apply to any waste that
EPA has identified as hazardous or, under its "contained-in" policy,
to any environmental medium, such as soil or groundwater, that has
been mingled with an identified hazardous waste until the medium no
longer contains the waste.  As a result, waste associated with
cleanups (often referred to as remediation waste) must be managed
under RCRA if it contains a hazardous component.  Thus, waste
generated at a wide variety of cleanups, including those under RCRA,
Superfund, and state enforcement and voluntary programs, must
generally be managed under RCRA's stringent requirements.\2

Both the Congress and EPA have considered proposals to amend the
application of RCRA's requirements to remediation waste.  Since 1995,
several legislative proposals have been introduced that would exempt
certain types of remediation waste from these requirements and give
the states the authority to establish their own requirements for
managing this waste.  Likewise, in 1995, the administration, as part
of its effort to reinvent government, tasked EPA with identifying for
statutory reform any RCRA provision whose implementation incurred
costs that far outweighed the environmental benefits achieved. 
Through meetings with stakeholders, EPA identified RCRA remediation
waste as a key area.  In April 1996, EPA proposed a comprehensive
rule that would have provided alternative ways of managing
remediation waste.  However, in September 1997, the agency announced
plans to withdraw its proposed rule because, among other things,
stakeholders disagreed on many remediation waste issues.  Instead,
the agency plans to issue regulations covering four specific elements
affecting remediation waste. 

To respond to this report's objectives, we reviewed pertinent laws
and regulations and EPA's policies, guidance documents, and proposed
regulations that discuss the application of RCRA's requirements to
the management of remediation waste during cleanups.  We interviewed
EPA headquarters managers responsible for both developing and
implementing RCRA policy.  We also interviewed officials in nine
states who are responsible for administering the federal RCRA and
Superfund programs and their own state enforcement or voluntary
cleanup programs.  We selected five of these states because they have
the largest cleanup workloads and four additional states to achieve
geographic diversity.  Finally, we discussed the current requirements
for managing remediation waste with various industry and
environmental associations.  (See app.  I for a more detailed
statement of our scope and methodology.)


--------------------
\2 The states have created their own laws and programs, similar to
the federal Superfund program, under which they may require parties
that caused contamination to clean it up.  Many states have also
created programs that offer property owners or potential purchasers
and developers incentives, such as relief from liability and a less
burdensome cleanup process, if they voluntarily clean up a site.  For
more information on voluntary cleanup programs, see Superfund:  State
Voluntary Programs Provide Incentives to Encourage Cleanups
(GAO/RCED-97-66, Apr.  9, 1997). 


   RCRA'S HAZARDOUS WASTE
   MANAGEMENT REQUIREMENTS CAN
   HAVE NEGATIVE EFFECTS ON
   CLEANUPS
------------------------------------------------------------ Letter :3

While many of RCRA's requirements can negatively affect cleanups,
according to EPA, cleanup managers most often cited three
requirements as creating disincentives for industry to clean up
previously contaminated sites.  They believe that these requirements
increase the cost and time of some cleanups and lead parties to
select cleanup remedies that can be either too stringent or not
stringent enough, given the health and environmental risks posed by
the waste.  Ultimately, these requirements can discourage the cleanup
of some sites, particularly of sites being managed under state
voluntary programs. 


      THREE KEY RCRA REQUIREMENTS
      CAN UNNECESSARILY INCREASE
      THE COST AND TIME OF
      CLEANUPS AND NEGATIVELY
      AFFECT THE CHOICE OF REMEDY
---------------------------------------------------------- Letter :3.1

Most of the cleanup managers we contacted identified land disposal
restrictions, minimum technological requirements, and requirements
for permits as the three most significant requirements under RCRA
that unnecessarily add cost and time to some cleanups.  The land
disposal restrictions and minimum technological requirements
primarily add costs because they set stringent standards for treating
and disposing of hazardous waste, forcing parties to try to reduce
contamination to concentrations that they believe are lower than
necessary to be protective or to use cleanup technologies that were
not designed to manage remediation waste.  The requirements for
permits can add time--months or even years--and costs to some
cleanups.  For example, one EPA estimate suggests that exempting
contaminated soil at a Superfund site from these requirements could
reduce the treatment costs by nearly 80 percent, from an average of
about $341 per ton to an average of about $73 per ton.  This
exemption could reduce the overall treatment and disposal costs for
such a site from about $12.2 million to about $4.1 million.\3
Ultimately, applying the three requirements to remediation waste has
led parties to base their choice of some cleanup remedies not on the
risks posed by the waste, but on considerations of how to meet,
minimize, or avoid the requirements, according to EPA and state
cleanup officials.  As a result, they pointed out, parties often
choose less aggressive remedies, such as leaving remediation waste in
place rather than managing or treating it. 


--------------------
\3 The EPA program managers pointed out that these savings would
result from exempting only contaminated soil from RCRA's
requirements.  Additional savings could be realized if waste at the
site, such as sludge, were also exempted. 


         LAND DISPOSAL
         RESTRICTIONS
-------------------------------------------------------- Letter :3.1.1

The 1984 RCRA amendments created land disposal restrictions that
largely prohibit parties from disposing of hazardous waste on land
(e.g., in a landfill\4

unless they have treated the waste to minimize threats to human
health and the environment.  The law also requires EPA to establish
treatment standards for hazardous waste that has been restricted from
land disposal.  Once EPA has set a treatment standard, parties must
meet it for hazardous waste that they subsequently dispose of on
land.  Parties do not have to meet the treatment standard for
hazardous waste placed on land before EPA established the standard
unless they remove the waste and dispose of it again--for example,
during a cleanup action. 

Complying with the land disposal restrictions and their associated
treatment standards can be costly and complex for several reasons. 
First, the restrictions are costly to implement because they require
that waste be treated to specific, stringent standards.  Such
treatment is especially costly for cleanups involving large volumes
of waste.  Treatment to meet these stringent standards may be
appropriate when relatively high-risk materials, such as concentrated
hazardous waste from old lagoons and landfills, are found during
cleanups.  However, much remediation waste is lightly contaminated. 
When relatively low-risk media are found, treatment to meet the
standards may be more stringent than necessary to protect human
health and the environment, according to EPA.  EPA estimated that
exempting relatively low-risk contaminated media from the treatment
standards under the land disposal restrictions could reduce by about
80 percent the volume of contaminated media subject to these
requirements, from about 8.1 to about 1.8 million tons per year.  The
agency also estimated that exempting relatively low-risk contaminated
media could decrease cleanup costs nationwide by 50 percent, or about
$1.2 billion per year, without sacrificing human health or
environmental protection.\5

Second, land disposal restrictions may drive some parties to use
cleanup technologies that are more stringent and therefore more
costly than necessary to be protective.  Under RCRA, EPA is required
to set treatment standards for hazardous waste that minimize any
threats to human health and the environment.  EPA has generally set
its treatment standards at the concentration levels that could be
attained if the best demonstrated available technology were used to
treat the contamination.  As a result, for some hazardous waste, the
only way to achieve the standard is by incineration, even though
other technologies, such as soil washing or bioremediation, can
result in protective cleanups at a much lower cost.\6 For example,
incineration, which can typically address all the hazardous waste at
a site, can cost as much as $1,200 per ton, according to EPA's
estimates.  If the waste at a site can be treated to meet RCRA's
standards through a combination of other technologies, such as
bioremediation, soil washing, and immobilization, each of which is
effective for certain contaminants, the final cost is likely to be no
more than about $300 per ton, according to EPA--much less than the
cost of incineration. 

Finally, the land disposal restrictions and their associated
treatment standards are costly because contamination may have come
from a variety of sources or industrial processes that occurred at
the site over time, and parties may have to use several treatment
technologies to comply with all of the applicable standards. 
According to EPA, this issue is particularly relevant at sites with a
long history of contamination.  The issue was also raised by a
cleanup manager from New Jersey, one of the five states with the
largest volume of remediation waste.  He said that remediation waste
frequently contains mixtures of many types of waste and parties find
it difficult to design treatment methods that will satisfy all of the
applicable standards under the land disposal restrictions. 

EPA has acknowledged that its treatment standards under RCRA are not
generally appropriate for much of the contaminated soil typically
found at cleanups.  However, even though EPA believes that in most
cases, such soil would be more appropriately treated using other
technologies, such as bioremediation, it does not have the research
to demonstrate that these technologies can attain the stringent
treatment levels required by RCRA.  Some of the state cleanup
managers we interviewed also discussed the problems they had
encountered in treating soil to achieve the standards.  New York
officials, for example, told us that the owners of a site with soil
contaminated with metals wanted to use a cleanup technology at the
site that would have achieved 98 percent of the concentration level
specified by the pertinent RCRA treatment standards.  However,
because the technology did not fully comply with the treatment
standards, the owners instead had to excavate the waste and send it
to a hazardous waste facility for treatment and disposal. 

Alternatively, efforts to avoid triggering the treatment standards
under the land disposal restrictions can drive parties to use less
aggressive and perhaps less effective cleanup methods, such as
leaving contaminated soil in place and placing a waterproof cover
over it rather than treating it.  While most cleanup programs allow
such remedies on a case-by-case basis, EPA believes they are not as
protective over the long term as more aggressive remedies, such as
excavating the waste to treat it. 


--------------------
\4 Land disposal includes any placement of hazardous waste into a
landfill, surface impoundment, waste pile, injection well, land
treatment facility, salt dome formation, salt bed formation, or
underground mine or cave. 

\5 Economic Assessment of the Proposed Hazardous Waste Identification
Rule for Contaminated Media, EPA (Apr.  1996).  Unless otherwise
stated, the dollar amounts mentioned in our report are expressed in
1994 dollars, as estimated by EPA in this 1996 document.  EPA program
managers pointed out that additional savings could be realized by
exempting sludge generated during cleanups.  According to the
agency's estimates, between 1.5 and 4 million tons of sludge are
generated each year. 

\6 Soil washing uses water or another washing solution and mechanical
processes to scrub excavated soils and remove the hazardous
contaminants.  Bioremediation uses microorganisms to break down
contaminants into less harmful or harmless substances. 


         MINIMUM TECHNOLOGICAL
         REQUIREMENTS
-------------------------------------------------------- Letter :3.1.2

RCRA also establishes design and operating specifications, known as
minimum technological requirements, for facilities, such as
incinerators and landfills, that either treat or dispose of hazardous
waste.  For example, a hazardous waste landfill or surface
impoundment\7 must have (1) two or more liners, (2) a leachate
collection system,\8 and (3) a monitoring system to ensure that
contamination is not moving into the groundwater.  Complying with
these requirements can be expensive.  For example, one facility we
visited spent $750,000 in 1987 to meet the minimum technological
requirements for a 2.5-acre surface impoundment. 

Because these technological requirements were designed for facilities
that manage waste from ongoing industrial operations (called process
waste), they may be more stringent than necessary for some
remediation waste, according to EPA and the majority of the state
cleanup managers we interviewed.  For example, a temporary waste pile
must meet the same requirements as a pile where hazardous waste will
be treated or stored for many years.  As a result, these requirements
can be counterproductive for some cleanups and unnecessarily increase
their costs, according to EPA, most state officials, and the industry
representatives we interviewed. 

Disposing of remediation waste, particularly lower-risk waste, in
accordance with the minimum technological requirements may add
unnecessary costs.  For example, parties that want to dispose of
waste that has already been treated to meet land disposal
requirements must still use a landfill that meets the minimum
technological requirements.  EPA and several state cleanup officials
we interviewed were doubtful that compliance with these requirements
would be worth the cost, given the low level of risk that treated
remediation waste poses.  According to EPA, disposing of waste in a
hazardous waste landfill can cost $200 per ton, compared with $50 per
ton to dispose of it in a municipal or industrial landfill.  Thus,
for the average Superfund site with 34,000 tons of contaminated soil,
it would cost about $6.8 million to dispose of the treated soil in a
landfill that meets these technological requirements, compared with
about $1.7 million to dispose of it in a municipal or industrial
landfill. 


--------------------
\7 A surface impoundment is an area, such as a pond or a pit, where
liquid or semisolid hazardous waste is treated, stored, or disposed
of. 

\8 This system collects any liquid that has percolated through or
drained from the hazardous waste. 


         REQUIREMENTS FOR PERMITS
-------------------------------------------------------- Letter :3.1.3

RCRA generally prohibits the treatment, storage, or disposal of
hazardous waste without a permit.  Because the process of obtaining a
permit involves a step-by-step approach with substantial requirements
for documentation and review, obtaining a permit can increase cleanup
costs and cause delays.  In addition, under RCRA, facilities that
require a permit in order to clean up a portion of a site must also
address cleanup requirements for the entire site.  Consequently,
parties may try to avoid triggering the permit requirement. 

The administrative cost of obtaining a RCRA permit can range from
$80,000 for an on-site treatment unit, such as a tank, to $400,000
for an on-site incinerator, and up to $1 million for a landfill,
according to EPA's estimates.  In addition to these costs, a party
may incur other costs for tasks needed to obtain a permit, such as
assessing a site's conditions in order to design a groundwater
monitoring system or conducting emissions testing and trial burns for
an incinerator.  The time required to obtain a permit can also be
extensive, according to almost all of the state cleanup managers we
interviewed.  For example, Texas managers said that getting a permit
can take 7 to 9 months for a simple treatment unit, such as a tank,
and an additional 5 to 6 years for a more complicated unit, such as a
landfill.  Industry representatives we spoke with also estimated that
getting a RCRA permit typically takes 5 to 6 years.  In a 1990
analysis of RCRA, EPA reported that the permit process is cumbersome
and causes significant delays.\9

EPA and several state cleanup managers indicated that these costs,
delays, and administrative issues are particularly significant for
facilities that are not in the business of transporting, storing, or
disposing of hazardous waste.  Such facilities would not need a RCRA
permit were it not for their cleanup activities.  Even facilities
that already have a RCRA permit to operate encounter costs and delays
when trying to get EPA or the state to modify their permit to conduct
cleanup activities.  EPA's most recent estimate (1992) of the cost to
modify an existing permit is about $80,000.  Washington State cleanup
managers said that they have been working on a permit modification
for one site for 2 years.  They find that under RCRA, facilities have
to request a permit modification for every technical change, whereas
under other programs, such as their state enforcement program, the
regulators and cleanup parties can meet and negotiate changes to
cleanup plans. 

To avoid these problems, parties sometimes opt to send their
remediation waste off-site to a commercial facility that already has
a RCRA permit to treat, store, or dispose of hazardous waste;
however, this option can be prohibitively expensive, according to EPA
and some state cleanup managers.  For example, Maine does not have
any such commercial facilities; therefore, parties that want to send
their waste off-site have to pay high transportation costs to ship it
to another state that does. 


--------------------
\9 EPA managers from the Office of Enforcement added that the agency
can impose specific requirements for some cleanups under an
administrative order, which can help decrease the time and costs
involved in obtaining a permit. 


      RCRA'S REQUIREMENTS CAN
      DISCOURAGE CLEANUPS
      ALTOGETHER
---------------------------------------------------------- Letter :3.2

To avoid triggering RCRA's requirements, property owners whose sites
are not under a federal or state cleanup order may choose to let the
waste remain in place without treatment and purchase land elsewhere
for their plant expansion or other needs, according to EPA, as well
as many state cleanup officials and industry representatives.  EPA
managers told us that leaving waste in place--especially "old waste,"
such as sludge, that may still have relatively high concentrations of
hazardous substances--may pose health or environmental risks. 
Furthermore, some state cleanup managers noted, the contaminated land
is not placed back into productive use.  Although cleaning up a site
may offer economic benefits, such as relief from liability for
contamination and increased property values, industry sometimes
concludes that the costs of complying with RCRA can outweigh these
benefits, according to EPA's analysis. 

Cleanup program managers from several states echoed these concerns. 
For example, cleanup managers from Missouri believe that less
restrictive requirements for remediation waste would lead to more
voluntary cleanups.  Officials from Pennsylvania concurred, saying
that they believe RCRA's requirements discourage parties from
voluntarily stepping forward to clean sites, such as former steel
mill sites near Pittsburgh.  Likewise, cleanup managers from New York
believe that economic factors are key to determining whether a
voluntary cleanup will occur.  If a property's sale price or
redevelopment value does not allow a party to recoup the expenses of
complying with RCRA, such a cleanup will not take place, they
contend.  Illinois cleanup managers expressed similar concerns,
saying that potential buyers are likely to lose interest in
purchasing a property once they find out that it may be subject to
RCRA's requirements, especially the treatment standards under the
land disposal restrictions. 


   EPA HAS TRIED TO SOLVE
   REMEDIATION WASTE ISSUES BUT
   HAS HAD LIMITED SUCCESS
------------------------------------------------------------ Letter :4

Since the late 1980s, EPA has incrementally modified RCRA's
application to remediation waste through an assortment of policy
statements and regulatory alternatives, which have lessened but not
solved the adverse effects identified.  The state managers we
interviewed have had varied experience in using these alternatives;
some have found them burdensome and overly complicated.  Furthermore,
industry representatives were concerned that using the alternatives
may result in cleanups that do not meet RCRA's requirements and will
thus require further action.  To allay these concerns, in 1996, EPA
proposed new rules to more comprehensively reform RCRA's requirements
as they apply to remediation waste.  However, because technical and
legal issues associated with the proposed rule remain unresolved, the
reform of RCRA's requirements that impede cleanups can best be
addressed through legislation, according to EPA. 


      POLICIES AND REGULATORY
      ALTERNATIVES ARE LIMITED
---------------------------------------------------------- Letter :4.1

The states have most frequently used six policy and regulatory
alternatives that EPA has issued.  Each alternative varies, however,
in the degree to which it helps to solve the problems posed by RCRA's
requirements. 


         CONTAINED-IN/CONTAINED-OUT
         POLICIES
-------------------------------------------------------- Letter :4.1.1

EPA originally designed the "contained-in" policy in 1986 to clarify
that the scope of the waste managed under RCRA includes any
medium--for example, groundwater or soils--that contained a listed
waste.  In the 1990s, recognizing that at some concentration levels,
contaminated media no longer pose a hazard to health or the
environment, EPA has allowed its regions and states to exclude, or
"contain out," such media from RCRA's regulation, on a case-by-case
basis.  EPA has not established definitive guidance on the specific
concentration levels that justify a "contained-out" decision, but it
has stated that the decision should be based on the risk posed to
human health.  Hence, according to EPA, this policy allows regulatory
agencies to make their own decisions about when contaminated media no
longer contain hazardous waste and therefore no longer need to be
managed under RCRA.  However, EPA has also reported that while the
contained-out policy has increased flexibility and reduced cleanup
delays, it has not been consistently applied throughout the nation. 
In addition, the policy applies only to contaminated media--soil and
groundwater--and not to all remediation waste, such as sludge. 
Furthermore, in some cases, not all waste that has been contained out
is exempt from all of RCRA's requirements.  For example, contaminated
soil may still be subject to land disposal requirements if it was
excavated and tested in order to obtain the contained-out decision. 
Finally, managers from one state told us they are reluctant to use
this policy because EPA has not set national standards for making a
contained-out decision. 


         ON-SITE PERMIT WAIVERS
-------------------------------------------------------- Letter :4.1.2

A 1986 amendment to the Superfund law exempts on-site cleanups from
the requirement to obtain a RCRA permit because these cleanups
receive close federal and state oversight.  Some states have likewise
adopted this waiver for the on-site cleanups they oversee under their
own enforcement programs.  Nevertheless, these cleanups must continue
to meet RCRA's other requirements, including the land disposal
restrictions and minimum technological requirements.  Permit waivers
do not apply to RCRA or state voluntary cleanups. 


         SITE-SPECIFIC LAND
         DISPOSAL TREATMENT
         VARIANCES
-------------------------------------------------------- Letter :4.1.3

In 1988, EPA issued a regulation to help address problems in meeting
the land disposal treatment standards for specific types of waste,
such as contaminated soils.  The regulation allows EPA to issue a
site-specific variance from a given land disposal treatment standard
under certain circumstances, such as when a given waste cannot be
treated to the applicable concentration level.  However, according to
the Superfund program managers, the lengthy approval process, which
includes obtaining public comments, discourages requests for these
variances.  Nonetheless, EPA has recently encouraged the regions to
make greater use of the variances. 


         SOURCE OF CONTAMINATION
         PRESUMPTION
-------------------------------------------------------- Letter :4.1.4

In 1990, EPA established this policy for Superfund cleanups, and the
states have extended it to cleanups in other programs.  When
beginning a cleanup, a party must make a good-faith effort to
determine the source of the waste identified at the site.  The source
often determines whether the waste is a listed hazardous waste and,
therefore, subject to RCRA's requirements.  The Superfund guidance
provides that when no records exist to document the exact source of
the waste--a common occurrence for older, abandoned Superfund
sites--the lead regulatory agency can presume that the waste is not a
listed hazardous waste and is therefore not subject to RCRA's
requirements.  However, the parties conducting the cleanups are at
risk if they have not taken adequate steps to identify the source of
the waste.  If additional information becomes available to prove
that, because of its source, a waste is a listed hazardous waste, the
responsible party could be forced by EPA to perform additional
cleanup activities at the site in accordance with RCRA's
requirements.  In this case, the responsible party could face
liability for improperly managing and disposing of hazardous waste. 


         AREA OF CONTAMINATION
         POLICY
-------------------------------------------------------- Letter :4.1.5

Also originating within Superfund in 1990, this interpretation of the
scope of land disposal restrictions allows cleanup managers to
consolidate some remediation waste and treat it or leave it in place
and cap it without triggering the treatment standards under the land
disposal restrictions.  However, the waste can be consolidated only
if it lies within contiguous areas of contamination.  In addition,
cleanup managers must comply with all of RCRA's requirements if the
waste is moved from one area of contamination to another or is
removed, treated, and then placed back into the area of
contamination. 


         CORRECTIVE ACTION
         MANAGEMENT UNIT RULE
-------------------------------------------------------- Letter :4.1.6

In 1993, EPA issued the corrective action management unit (CAMU) rule
that significantly expands upon the area of contamination policy. 
According to EPA officials, under this rule, parties conducting
cleanups can dig up or move waste or can permanently treat, store, or
dispose of it within a strictly defined area on-site if certain
site-specific design and operating requirements are met.  However,
the waste would not be subject to RCRA's land disposal restrictions
or minimum technological requirements.  Moreover, parties must obtain
EPA's approval to use a CAMU--usually by obtaining a permit.  The use
of CAMUs has been somewhat limited because in 1993, some
stakeholders, including the Environmental Defense Fund (EDF), filed a
lawsuit questioning, among other things, whether EPA has the
authority to exempt hazardous waste disposed of in CAMUs from the
land disposal restrictions and the minimum technological
requirements.\10 This legal question has not yet been resolved. 


--------------------
\10 The Environmental Defense Fund is one of the primary
environmental organizations that has taken an active position on the
various proposals to reform RCRA's requirements for remediation
waste. 


      ALTHOUGH ALTERNATIVES
      PROVIDE SOME RELIEF FROM
      RCRA'S REQUIREMENTS,
      MANAGERS FOUND THEM
      BURDENSOME AND INEFFICIENT
      TO USE
---------------------------------------------------------- Letter :4.2

While most of the state managers we interviewed described these
alternatives, such as the CAMU rule, as useful during cleanups, some
managers were not aware of or did not understand all of the
alternatives, questioned whether they were legally defensible, or
found them burdensome and inefficient.  EPA is considering how to
address these problems. 

Cleanup managers from all but one of the states we selected told us
that they had used EPA's alternatives for minimizing the impact of
RCRA's requirements on remediation waste cleanups.  Generally, the
state and other managers believed that the alternatives brought
needed flexibility to RCRA's rigid requirements.  For example, the
Department of Defense's Deputy Under Secretary for Environmental
Security attributed savings of between $500 million and $1 billion in
cleanup costs to the use of a CAMU at the Department's Rocky Mountain
Arsenal site.\11

However, those managers who had used the alternatives more
extensively also said that they spend considerable time and resources
to determine which alternatives to use and how to use them to work
around the problems presented by RCRA's requirements.  They found
that the alternatives were difficult to use and did not solve all of
the problems at a particular site. 

In some instances, we found that cleanup managers were unfamiliar
with some of the alternatives or were concerned about using them. 
For example, cleanup managers from one state told us that they were
not familiar with EPA's policy that provides for waivers to the
administrative requirements for obtaining a permit.  Managers from
another state told us that they were reluctant to make use of the
contained-out policy because EPA had not issued specific guidance on
such determinations.  Industry managers told us they were hesitant to
propose new CAMUs because of the rule's uncertain future. 

Several industry and state cleanup managers acknowledged that they
are somewhat uncomfortable applying these alternatives for fear that
EPA or a third party may view the cleanup as not being in full
compliance with RCRA's requirements and may initiate a legal
challenge.  For example, managers in one state were somewhat
uncomfortable that they take full advantage of the flexibility
provided by the source of contamination presumption.  In the
managers' view, the state may not be requiring an extensive enough
search to determine the source of the waste. 

Several EPA headquarters managers said that they are not surprised
that state cleanup managers are unaware of or are inconsistently
applying the alternative policies because the policies are difficult
to understand and have been implemented piecemeal over the years. 
The EPA managers acknowledged that they may need to take additional
steps to help the regions and states better use these options. 


--------------------
\11 Federal agencies are generally responsible for cleanups of their
own facilities. 


      EPA BELIEVES THAT
      COMPREHENSIVE REFORM CAN
      BEST BE ACHIEVED THROUGH
      LEGISLATION
---------------------------------------------------------- Letter :4.3

Recognizing the need for more comprehensive reform of RCRA's
requirements for managing remediation waste, EPA in 1993 established
a formal advisory committee of key stakeholders that developed the
framework for a new regulatory approach that EPA proposed in April
1996, the Hazardous Waste Identification Rule for Contaminated Media
(HWIR-Media).  This proposal laid out several options that range from
exempting some remediation waste from RCRA's current requirements to
exempting all such waste and giving the states the authority to
define how to manage it.  EPA estimated that these options could save
parties conducting cleanups up to $2.1 billion in cleanup costs a
year over the next few years.  However, stakeholders still have
significant disagreements over legal and technical issues. 
Therefore, EPA anticipates that any approach to comprehensive
regulatory reform would result in prolonged legal battles that would
delay cleanups.  As result, the agency announced plans to withdraw
its proposed rule and focus on four more narrow regulatory changes. 
EPA concluded that comprehensive reform can best be achieved by
revising RCRA itself. 

EPA's proposed rule laid out alternatives for waste management,
ranging from the "bright line" to the "unitary" approach.  The first
was limited to making only contaminated media eligible for an
exemption from RCRA's stringent requirements while maintaining the
requirements for more highly contaminated hazardous waste.  To
determine which media could be exempt, EPA would establish a
concentration level, or "bright line," for various contaminants.\12
If the contaminants in a medium fall below the bright line, the
medium would be eligible for an exemption from RCRA's current
hazardous waste management requirements and EPA and authorized states
would have the authority to set site-specific waste management
requirements.  EPA estimates that about 80 percent of all
contaminated media would be eligible for a RCRA exemption under this
approach, saving $1.2 billion a year in cleanup costs over the next
few years. 

In contrast, the unitary approach would exempt all remediation waste,
including debris and sludge, from RCRA's hazardous waste management
requirements.  Remediation waste would then be managed under a
site-specific remediation plan which would be subject to public
review and comment and approval by EPA or an authorized state.  EPA
estimated that this approach could save approximately $2.1 billion a
year in cleanup costs over the next few years. 

According to the Association of State and Territorial Waste
Management Officials, most states would prefer an approach that
includes all remediation waste--similar to the unitary
approach--because it would allow for efficient cleanups. 
Representatives from the departments of Defense and Energy, industry,
and several associations that we contacted also said they would
generally prefer the unitary approach for the same reason.  Industry
groups, in their comments on EPA's proposal, raised concerns about
the bright-line approach, particularly about the extent to which they
would have to test and sample waste to determine whether each
contaminant at a facility exceeds the line, potentially making some
cleanups cost-prohibitive.  Some of EPA's program managers also said
that if all remediation waste is not exempted from RCRA's current
requirements, the incentives to avoid cleanups or select less
aggressive remedies will continue. 

Other stakeholders, including representatives of EDF, would generally
prefer an approach that is conceptually similar to the bright-line
approach.  For example, EDF, in its comments on EPA's proposed rule,
stated that it strongly objects to any rule that does not provide
national treatment standards for highly contaminated media.  EDF
contends that, in most cases, this material is as toxic as the
process waste that is subject to RCRA's requirements and therefore
should be managed rigorously.  EDF also asserts that EPA lacks any
technical basis for setting different treatment standards for sludge
managed during cleanups.  EDF believes that there is no evidence that
the sludge managed during a cleanup is physically or chemically
different from process waste.  Therefore, EDF is opposed to relaxing
RCRA's requirements for managing sludge.  EDF was also critical of
EPA's methodology for establishing bright lines, stating that the
agency did not adequately consider potential exposure to contaminated
groundwater. 

Stakeholders also disagree on the extent to which the states should
be authorized to manage remediation waste.  Some stakeholders
expressed concern that the states, if authorized, could set different
standards for managing such waste, potentially creating problems with
interstate transfer and disposal.  Cleanup managers in one state were
particularly concerned about whether they would have adequate
resources to determine the hazard posed by waste shipped to their
state from states with less stringent standards. 

Disagreements also arose on the process that should be used to
determine whether a state has adequate laws, standards, and programs
to manage exempted waste.  Some stakeholders argue that the states
have already demonstrated their ability to manage remediation waste
through their state cleanup programs and should be allowed to certify
themselves as authorized to do so.  EDF, on the other hand, points
out that since a large portion of remediation waste would be exempt
from RCRA's hazardous waste management requirements, the states could
use their own systems for managing nonhazardous waste, such as
municipal and industrial landfills, for remediation waste.  EDF
argues that some evaluations have raised questions about the adequacy
of these state systems.  EPA enforcement managers also added that
community groups have expressed similar concerns.  If EPA is to
implement a state authorization process, all stakeholders seem to
agree that the agency should not duplicate the process EPA uses to
authorize states to implement RCRA because it is cumbersome and
time-consuming.  However, the stakeholders disagree on how to
streamline the process so that EPA retains meaningful oversight and
the public has adequate opportunities to participate in cleanup
decisions and activities. 

EPA concluded that resolving all the technical and legal issues,
including how to distinguish what waste poses a significant threat to
human health and the environment and whether EPA can exempt this
waste from RCRA's land disposal restrictions, would be time-consuming
and resource-intensive.  The agency expected the resulting drawn out
litigation and uncertainty would further discourage cleanups. 
Subsequently, the agency announced on September 11, 1997, that it
plans to withdraw the HWIR-Media rule and, instead, pursue final
rulemaking on four more narrow portions of the proposal by June
1998.\13 The agency acknowledges that while these changes would help
improve remediation waste management, they would not provide the
needed flexibility to exempt such waste from RCRA's rules. 
Therefore, EPA further concluded that comprehensive reform of the
remediation waste issue can be best addressed through the legislative
process.  In anticipation that legislative proposals to address the
issue could be reintroduced, EPA, in conjunction with the Council on
Environmental Quality, hosted three meetings during the past year to
assess stakeholders' views on outstanding remediation waste issues
and determine possible ways to address them.\14


--------------------
\12 For example, under the bright-line option, a concentration of a
hazardous constituent that is determined to increase the lifetime
risk of cancer in more than 1 person in 1,000 would be classified as
hazardous and would be retained under RCRA's current system for
managing hazardous waste. 

\13 The elements that EPA plans to focus on are alternative land
disposal treatment standards for hazardous contaminated soil;
streamlined processes for obtaining permits for cleanup sites;
options for remediation piles; and an exclusion from RCRA's
requirements for dredged materials. 

\14 The Council on Environmental Quality, in the Executive Office of
the President, is responsible for coordinating the development and
implementation of environmental policies throughout the federal
government. 


   CONCLUSION
------------------------------------------------------------ Letter :5

Three of RCRA's hazardous waste management requirements, in
particular--land disposal restrictions, minimum technological
requirements, and requirements for permits--may be unduly stringent
for a significant portion of the remediation waste that poses a
lesser risk to human health and the environment.  While stakeholders
generally agree that comprehensive reform of remediation waste
management is necessary, not everyone agrees on how to achieve this
reform.  EPA's efforts to provide alternative policies to mitigate
the impact of these requirements have resulted in confusion over the
applicability of the policies to cleanups and some, such as the CAMU
rule, have been legally challenged.  EPA has concluded that because
stakeholders disagree on the extent to which waste should be exempt
from RCRA's requirements, as well as on EPA's legal authority under
current law to exempt waste from the requirements, the agency could
not easily achieve comprehensive reform through the regulatory
process.  It believes that such reform can best be achieved by
revising the underlying law governing remediation waste management. 
EPA's plan to withdraw proposed comprehensive regulatory reform
increases the need for a legislative solution. 


   RECOMMENDATION
------------------------------------------------------------ Letter :6

We recommend that until comprehensive legislative reform is achieved
to address RCRA's disincentives to cleanups, the Administrator, EPA,
take steps to ensure that regulators overseeing cleanups have a more
consistent understanding of how to apply EPA's existing policy and
regulatory alternatives to RCRA's requirements for managing
remediation waste.  These steps could include, for example,
consolidating the policy and regulatory alternatives into one
guidance document, training all cleanup managers in its appropriate
use, and providing follow-up legal assistance for site-specific
implementation questions. 


   AGENCY COMMENTS
------------------------------------------------------------ Letter :7

We provided copies of a draft of this report to EPA for its review
and comment.  We met with agency officials, including the Acting
Director, Permits and State Programs Division, Office of Solid Waste,
the division with responsibility for developing policies and
procedures for managing remediation waste under RCRA.  The agency
generally agreed with the report's findings.  EPA suggested some
technical revisions to the report, which we incorporated.  The agency
also identified two issues it believed needed further clarification. 
First, EPA agreed that we identified the three specific requirements
under RCRA that, when applied to remediation waste, pose the most
significant barriers to cleanups.  However, the agency noted that
reforming these individual requirements would not remove all of the
barriers; RCRA's entire hazardous waste management process, as it
applies to remediation waste, poses problems and needs comprehensive
reform.  Second, the agency wanted to make sure that the report
clearly indicated that RCRA's requirements affect all remediation
waste, including sludge, debris, and contaminated soil.  EPA believes
that reform must apply to all remediation waste.  We made several
changes in the report where appropriate to address these issues. 

Finally, while agreeing that our recommendation will help parties
manage cleanups under RCRA's current requirements, EPA believes that
the benefits may be limited because the requirements will continue to
pose barriers to cleanups until comprehensive reform is achieved.  We
reemphasized that reform, while necessary, may take some time to
implement.  Meanwhile, parties will have to accomplish cleanups under
RCRA's current requirements and should be able to take advantage of
the policy and regulatory alternatives EPA has provided.  However,
given the concerns that state and industry cleanup managers have
expressed about using these alternatives, we believe it is important
that EPA take steps to ensure the alternatives are implemented
correctly. 

The scope and methodology used for our work is discussed in appendix
I.  We performed our work from April through September 1997 in
accordance with generally accepted government auditing standards. 

As arranged with your offices, unless you announce its contents
earlier, we plan no further distribution of this report until 10 days
after the date of this letter.  At that time, we will send copies to
the appropriate congressional committees; the Administrator, EPA; and
other interested parties.  We will also make copies available to
others on request. 

We hope this information will assist you as you consider legislation
to reform RCRA as it applies to remediation waste.  If you have any
further questions, please call me at (202) 512-6111.  Major
contributors to this report are listed in appendix II. 

Lawrence J.  Dyckman
Associate Director, Environmental
 Protection Issues


SCOPE AND METHODOLOGY
=========================================================== Appendix I

To provide information on the requirements of the Resource
Conservation and Recovery Act (RCRA) that pose barriers to managing
remediation waste and the policies that the Environmental Protection
Agency (EPA) has developed to mitigate those barriers, we reviewed
applicable laws and numerous EPA documents, policies, and
regulations.  We also interviewed managers in charge of hazardous
waste cleanup programs in EPA, nine states, and industry to obtain
their views both on RCRA's requirements and on the actions EPA has
taken to mitigate barriers presented by the requirements.  We
attended all three meetings co-sponsored by EPA and the Council on
Environmental Quality to assess stakeholders' concerns with reforming
RCRA's requirements for remediation waste; these meetings were held
on June 5, August 6, and September 5, 1997.  Additionally, we spoke
with cleanup program managers in several other federal agencies and
representatives of the primary environmental association involved in
remediation waste issues to learn about their experiences and
perspectives.  Finally, we visited a hazardous waste facility at
Cytec Industries' Willow Island plant near Parkersburg, West
Virginia.  The officials and representatives we interviewed include
the following: 


      EPA
------------------------------------------------------- Appendix I:0.1

  -- The Acting Director and environmental specialists from the
     Permits and State Programs Division, Office of Solid Waste. 
     This division is responsible for developing environmental
     remediation policies and procedures under RCRA. 

  -- Environmental specialists from the Office of Site Remediation
     Enforcement who oversee EPA's enforcement of RCRA. 

  -- Representatives from the Superfund program who specialize in
     complying with RCRA's applicable requirements. 

  -- Region III officials who manage hazardous waste activities at
     Cytec Industries' Willow Island plant near Parkersburg, West
     Virginia. 


      OTHER FEDERAL AGENCIES
------------------------------------------------------- Appendix I:0.2

  -- Program managers responsible for overseeing hazardous waste
     cleanups at the departments of Defense, Energy, and the
     Interior. 


      STATES
------------------------------------------------------- Appendix I:0.3

  -- A policy director from the Association of State and Territorial
     Solid Waste Management Officials. 

  -- Managers of Superfund, RCRA, state enforcement, and voluntary
     cleanup programs in nine states.  We selected five of these
     states--California, Illinois, New Jersey, New York, and
     Pennsylvania--because, according to EPA, they collectively
     generate, each year, about 35 percent of the nation's
     contaminated environmental media managed off-site.  We selected
     the four remaining states--Maine, Missouri, Texas, and
     Washington--for geographic diversity. 


      INDUSTRY
------------------------------------------------------- Appendix I:0.4

  -- Attorneys and consultants representing major corporate members
     of the National Environmental Development Association and the
     RCRA Corrective Action Project.  These groups were organized to
     promote the reform of RCRA. 

  -- Attorneys from the Environmental Technology Council.  This group
     represents private waste managers. 

  -- A spokesperson for the Solid Waste Association of North America. 
     This group represents municipal landfill operators. 

  -- Facility and corporate headquarters managers from Cytec
     Industries in charge of hazardous waste management activities at
     the Willow Island plant near Parkersburg, West Virginia. 


      ENVIRONMENTAL GROUP
------------------------------------------------------- Appendix I:0.5

  -- Attorneys from the Environmental Defense Fund.  This
     organization is one of the primary environmental organizations
     taking an active position on various proposals to reform RCRA's
     requirements for managing remediation waste. 

We performed our work from April through September 1997 in accordance
with generally accepted government auditing standards. 


MAJOR CONTRIBUTORS TO THIS REPORT
========================================================== Appendix II

RESOURCES, COMMUNITY, AND ECONOMIC
DEVELOPMENT DIVISION, WASHINGTON,
D.C. 

Eileen R.  Larence, Assistant Director
Karen L.  Kemper, Evaluator-in-Charge
Susan E.  Swearingen, Senior Evaluator
Larry D.  Turman, Senior Evaluator
Patricia Kao, Intern
Elizabeth R.  Eisenstadt, Communications Analyst
Fran Featherston, Senior Social Science Analyst

OFFICE OF GENERAL COUNSEL

Richard P.  Johnson, Senior Attorney


*** End of document. ***