RCRA/CERCLA Keystone Panel Focuses on Contaminated Property Developments

Kenneth F. Gray

A RCRA/CERCLA panel at the Section’s 32nd Annual Conference on Environmental Law brought together Susan Bromm, director of EPA’s Office of Site Remediation and Enforcement; Matt Hale, deputy director, EPA Office of Solid Waste; and Amy Edwards, a partner at Holland & Knight in Washington, D.C. A “standing room only” crowd heard the panelists describe recent developments and answer questions, which are included at the end of this article.

Susan Bromm began by describing the de micromis guidance document issued by EPA and agency policies on settlements for Non-Exempt De Micromis Parties, but Susan spent most of her time on the just-released “Common Elements” guidance (dated March 6, 2003) found on EPA’s Web site [www.epa.gov/compliance/resoureces/policies/cleanup/brownfields/index.html]. The Common Elements guidance addresses statutory threshold criteria and continuing obligations common to the three landowner liability protections: Bona Fide Prospective Purchasers, Contiguous Property Owners, and Innocent Land Owners. EPA has invited comments on this guidance that discusses “all appropriate inquiry” as well as land use restrictions and institutional controls compliance, and “reasonable steps” to stop or prevent releases. In particular, the statutory requirement of “reasonable steps” has attracted the most interest and attention, because although these parties may not have to implement “full-blown CERCLA response,” EPA is giving only general guidance and looking to the CERCLA case law on “due care” to steer clear of the shoals of liability.

Bromm also noted that EPA expected to issue guidance shortly on “windfall liens” (expected April 2003) and on “Eligible Response Sites” that would not be the subject of federal action (dated March 6, 2003; available at the EPA Web site). Susan Bromm plans to make her power point presentation available on EPA’s Web site [www.epa.gov/compliance/resources/cleanup].

Matt Hale described EPA’s “One Cleanup Program,” which is to be formally launched in April 2003. The goals of the program are (1) to promote more consistent and effective clean ups across different programs, (2) to present more and clearer information to the public, and (3) to provide better performance measures for cleanup. Among the first aspects of the program was the vapor intrusion guidance, published in the Federal Register for comment on Nov. 29, 2002. The agency received significant comment on the issues of cutoff at MCLs, work place exposures and the conservatism of the approach.

Matt Hale also described the RCRA Completion Guidance, which had just been published in the Federal Register of Feb. 25, 2003. Although the RCRA Completion Guidance is not part of the EPA’s Land Revitalization Agenda, it plays a specific role in allowing the public to recognize the progress in completed RCRA cleanups “with” or “without” institutional controls.

Recent examples of redevelopment at RCRA sites include the Bethlehem Steel Company in Pennsylvania and Atlantic Steel in Georgia. At Bethlehem, the federal and state agencies formed a team with the steel company and divided areas of the site into sections for different types of redevelopment. Region 3 expects to issue a RCRA determination of Corrective Action complete with controls. At Atlantic Steel in Atlanta, a Project XL partnership is leading to redevelopment with mixed commercial, residential and other uses, and a creative conservation easement provided institutional controls allowing Georgia to terminate a RCRA post-closure permit.

Amy Edwards, who has been active nationally in identifying and resolving issues associated with institutional controls, described the current obstacles facing many practitioners and governments. Among other concerns have been a lack of statutory tools to promote institutional controls, a wide variety of private proprietary controls, lack of awareness by property owners and other institutional controls, and concerns regarding enforceability, long-term stewardship and funding. Edwards noted the recent guidance documents issued by ASTM and EPA, but described the soon-to-be adopted Model Environmental Covenant Law. The Model Environmental Covenant Law should promote uniformity and overcome common-law limits to institutional controls, Marketable Title Act expirations on some restrictions, the potential impact of foreclosures and tax sales, and other legal questions regarding institutional control effectiveness. Amy Edwards is also the editor of an upcoming book from ABA publishing on institutional controls which should be available in summer 2003. Information on the book will be available through the Section’s Web site.

Kenneth F. Gray is a partner at Pierce Atwood, a northern New England law firm. He moderated the panel “News You Can Use for Contaminated Property from EPA’s CERCLA Programs” on March 14, 2003 at the 32nd Annual Conference on Environmental Law at Keystone, Colorado.