RESTORING THE ENVIRONMENT By James A. Chaffee, P.E., Stevens Point Office Manager RUST Environment & Infrastructure

Transcription

1 RESTORING THE ENVIRONMENT By James A. Chaffee, P.E., Stevens Point Office Manager RUST Environment & Infrastructure Since 1980, we have invested over $16 billion investigating and attempting to clean up National Priority List (NPL) sites (Superfund) where soil and/or groundwater contamination has occurred as a result of waste disposal practices or spills. Most of this money has been spent in the last eight or ten years on less than 1,000 sites nation-wide, and the return on this investment has been dismal: remediation has only been implemented at 49 sites, only 16 sites have incurred at least 60% of their projected final clean-up costs and we are not aware of any sites that have been "de-listed". Even more shocking is the fact that current investments in the Superfund program represent only a fraction of the total costs of environmental restoration. Based on a 1992 University of Tennessee study, the probably range of national environmental remediation costs is estimated to be from $478 to $1,046 billion. This article provides an overview of environmental restoration issues including the regulatory history, changes in public perceptions, approaches, methods, and costs. Also presented are some of the key challenges that face probable responsible parties (PRPs), their agents and others involved in the process of complying with environmental restoration regulations, along with suggestions for minimizing the risk of exposure. OVERVIEW OF LEGISLATIVE HISTORY Environmental remediation is costly, provides no financial return, and in most instances is required as a result of either disposal or business practices that were once generally accepted, or unintentional and accidental spill events. As a result, responsible parties (RPs) typically have little incentive to initiate remediation without regulatory enforcement. Regulatory enforcement has been the principal driving force for environmental restoration, and federal and state legislation has directly resulted from increased public awareness and concern. Federal legislation is the regulatory foundation for environmental remediation enforcement actions. Table 1 summarizes important legislative developments. The basic legislation for most environmental laws today was drafted in the early 1970s, following a period of heightened public awareness and sensitivity to environmental issues in the 1960s. The SWDA, CAA, CWA, SDWA and RCRA have all undergone extensive amendments arid changes, but continue to provide a legislative framework for the laws and regulations that currently protect the land, air, and waters of the U.S. The 1970s was a period when emphasis was placed on clean up of point sources of pollution (i.e. sewage discharges). In 1978, Love Canal received national attention when toxic wastes were found seeping into

2 basements, a nearby school and playground built on top of a disposal pit. Public outrage over the Love Canal discovery led to passage of Superfund legislation in 1980 (CERCLA), which was intended to force clean up of sites that posed a risk to the public and environment. TABLE 1 OVERVIEW OF HISTORICAL ENVIRONMENTAL LEGISLATION Date Legislative Activity 1960s Environmental Awareness, Solid Waste Disposal Act (SWDA, 1965) 1970 US Environmental Protection Agency (USEPA) is Born 1970s Basic Legislation Passed: Clean Air Act (CAA, 1970); Clean Water Act (CWA, 1972); Safe Drinking Water Act (SDWA, 1974); Resource Conservation and Recovery Act (RCRA, 1976). Period of discovery and developing environmental technology. Public shock Love Canal, Superfund is Born. Comprehensive Environmental Response, Compensation, and Liability Act CERCLA 1980s Technologies improve. Data bases and priority lists are developed. Experience with investigations and remediation alternatives occurs. Some clean-a is accomplished, although progress is slow Superfund Amendment and Reauthorization Act (SARA) passed 1990s Leaking Underground Storage Tanks (LUST) are targeted nationally. Emphasis starts to shift from investigation to remediation. Remediation standards begin to be developed or refined. Public begins to question cost/benefits Congress considers Reauthorization of CERCLA, CWA and SDWA The Superfund legislation imposed strict and retroactive liability on potentially responsible parties (PRPs) for cleanup costs associated with sites that were placed on the National Priorities List (NPL). An important component of the law that has received significant legal attention is that any party responsible for generation, transport, or disposal of any part of the waste at a Superfund site can be held liable for the entire cost of the remediation, even if the PRP actions were both legal and state-of-the-art at the time they occurred. During the 1980s, Federal and State agencies developed lists and databases of sites of potential environmental concern, regulations were tightened on waste generation and disposal practices, and enforcement actions lead to initiation of investigations and clean-up activities. Technologies also improved for investigating, detecting and measuring contaminants in the environment. The Superfund amendments in 1986 reauthorized and strengthened the original legislation, stressed complete restoration at regulated sites, provided for improved public awareness, and increased EPA funding.

3 Beginning in the late 1980s, EPA tightened regulations related to underground storage tanks, which were determined to be a major source of environmental contamination. As a result, States adopted regulations, and many instances funding programs, to deal with the leaking underground storage tank (LUST) problem. Wisconsin, along with other states, developed regulations and enforcement initiatives to achieve compliance with federal regulations, and address sites of concern that did not fall under the Superfund program administered by EPA. These new regulations addressed closure of old dump sites, solid and hazardous waste disposal activities, agricultural chemical sites, spill sites, and numerous other activities of concern. Congress is currently debating legislation to reauthorize Superfund, as well as the Clean Water Act, and the Safe Drinking Water Act. Superfund legislation is expected to change significantly during reauthorization. Likely changes include improved certainty with respect to allocation of responsibility, improved remediation standards, less emphasis on total restoration, and consideration of risks, costs and benefits when selecting a remediation approach. Although Superfund legislation only applies to NPL sites, the changes will also filter into regulations affecting non-npl sites. SHIFTS IN ATTITUDES AND PERCEPTIONS Over the past two decades, legislation, regulations and enforcement actions governing environmental remediation have undergone many changes in direct response to changes in attitudes and perceptions on the part of the general public, regulators, and lawmakers. Figure 1 illustrates six distinct phases of attitudes that have steered regulatory actions. The first phase, Awareness, occurred primarily in the 1960s, when public consciousness increased over the impacts of point pollution sources directly impacting air and water quality. This phase was followed by Shock, when investigations and improved technology revealed the extent of contamination in the environment, and public exposure. Although health risks related to the exposures were unknown in many cases, the public was uncomfortable with the fact that synthetic (not natural) compounds were present in the environment. The initial reaction of the public and regulators was to require restoration to non-detectable levels for synthetic contaminants (such as solvents), and to background levels for naturally occurring substances, regardless of cost. This restoration philosophy has only recently started to be challenged. Enforcement of remedial investigations and actions led to a discovery phase, when knowledge was improved regarding: the nature, extent and migration of contaminants in the environment; remediation techniques; exposure risks; and, clean-up costs and feasibility. An important outcome from early remediation experiences was the discovery that clean-up costs and feasibility are subject to the law of diminishing returns, and that restoration to non-detect or background levels can be cost-prohibitive or infeasible in certain circumstances.

4 The discovery phase has lead to a phase where concepts of practicality are being introduced. Although the principal of polluter pays" as defined in Superfund legislation may sound reasonable, there is growing recognition that: (1) Most businesses do not have deep pockets"; (2) the potential economic impacts on business are significant; and, (3) in many cases, financial liability for environmental problems often falls on the public at large, not on innocent parties whose misfortune may be holding title to some contaminated land. Although regulators are far from backing down on enforcement actions, remediation standards are beginning to consider risk and cost issues, and practical remediation alternatives are receiving greater attention. A proactive attitude is another phase that began to appear in the 1980s. As Congress considers new environmental legislation, considerable attention is placed on pollution prevention activities. Examples include source water protection for drinking water, solid and hazardous waste minimization, watershed management initiatives, and air discharge permitting. HOW BIG IS THE PROBLEM? Any site where contaminants or wastes were generated, handled, treated or disposed can represent a risk of environmental contamination. The most common contaminants of concern at major remediation sites include solvents, heavy metals, asbestos, treated wood and leather tanning wastes, acids, explosives, paints, petroleum related products, mining slag and radioactive waste. The types of sites most commonly involved include landfills, industrial properties, spill sites, government installations and UST sites. The results of a 1992 University of Tennessee study of probable national remediation costs are illustrated in Figure 2. For this study, remediation estimates were developed for six separate categories of sites. The most probable total national remediation cost was estimated to be $752 billion, with a possible range extending to over $1 trillion. Federal and NPL (Superfund) sites comprised 56% of the total costs, while the remaining costs included RCRA (private solid and hazardous waste), LUST and smaller state and private sites. There is less data on the probable costs of remediation in Wisconsin, but the numbers of potential sites of concern were estimated from various data sources as summarized in Table 2.

5 TABLE 2 SITES OF ENVIRONMENTAL CONCERN IN WISCONSIN Category Estimated Number of Sites NPL (Superfund) Sites 40 LUST Sites (As of April 1994) 1,200 Registry of Waste Disposal Sites 4,093 Remedial Response List (1987, to be 165 updated in 1995 Hazardous Ranking List (1988, to be 62 updated in 1995 Abandoned Landfills approx. 1,955 Active Landfills approx. 45 Hazardous Substance Spills 1,200 sites per year It should be noted that there is duplication between some of the categories listed in Table 2. For example, the Remedial Response and Hazardous Ranking lists are both derived from the Registry of Waste disposal sites. The Registry also includes abandoned and active landfills. The total number of sites requiring action continues to grow every year due to a number of factors. Environmental Property Audits, which are becoming more common as a means of protecting buyers and lenders in a property transaction, may uncover new sites where there is evidence of potential contamination from previous activities. As an example, a recent audit conducted for the City of Stevens Point in conjunction with purchase of a new City Hall site, uncovered evidence of groundwater contamination by synthetic organic chemicals. Other sources of new information include: spill reports; research by regulatory staff; and, public water supply contamination discovered through compliance monitoring. The good news is that the number of sites being added each year is declining. This trend is illustrated in Figure 3, which shows the number of CERCLA and NPL sites identified since the Superfund legislation was passed in The trend shown in this figure is also typical of other site categories, because most sites of concern were identified in the 1980s. THE PROCESS OF REMEDIATION The approach to site remediation varies with a number of factors including the nature of the problem, regulatory or funding agency involvement, and probability of litigation. However, there are generally seven steps in the process as follows: Step Description 1. Preliminary Assessment

6 2. Detailed Remedial Investigation & Feasibility Study (RI/FS) 3. Remedy Selection 4. Remedial Design (RD) 5. Remedial Action (Construction) 6. Operations and Monitoring 7. Site Closure or De-listing The preliminary assessment may be the step that identifies the problem, such as with an environmental site audit, or it may be a formal regulatory step such as is required before listing on the NPL. The second step involves defining the nature and extent of contamination, and evaluation of remediation feasibility and alternatives. Step 3 involves selection of the remediation approach based on factors such as regulatory requirements, cost, and feasibility. In the fourth step, a design is prepared defining the scope of construction type activity that may be required, such as installation of groundwater recovery and treatment systems. Construction of the designed systems) is implemented in Step 5, and long-term operations and remediation monitoring are performed in Step 6. Once a site has been remediated, it must be accepted by the appropriate regulatory agency (a process often referred to as "closure" or "de-listing"). The acceptance process typically involves review of monitoring data, and possibly site investigations to confirm that of the remedial action was effective. If the remedial action is not successful in achieving restoration goals or requirements, then additional investigation, design and implementation may be required (repeat Steps 2 through 6). The time required to complete a site remediation can vary considerably. For a simple spill site, where an emergency response may be initiated, steps 1 through 5 can be completed in a matter of one to three days, where a team is employed consisting of the necessary engineering and construction expertise to quickly collect product, evaluate the extent o1 contamination, excavate and treat any affected soils, and restore the spill site. As may be expected, time requirements increase dramatically with the complexity of the site, degree o1 regulatory involvement, and probable remediation costs. As an example, the average time and cost required to remediate a Superfund site are summarized in Table 3. TABLE 3 AVERAGE REQUIREMENTS FOR SUPERFUND SITE REMEDIATION Steps Time Required (years) 1. Prelim. Assessment RI/FS Selection.5-1 min. 4. Remedial Design Probable Cost (Millions)$

7 5. Construction Monitoring up to Closure Totals Avg. 72 years (not incl. long-term monitoring) Avg The average time required to remediate a Superfund site is long, and remediation costs are high because these sites tend to be large and complex, and are subject to intense federal oversight. In comparison, private spill sites are typically less involved. Since 1988, it is reported by the Wisconsin Department of Industry, Labor and Human Relations that more than 3,000 LUST sites have been restored, with a probable average duration of three to four years, and an average cost of approximately $62,000 per site. The technologies employed to remediate a site continue to evolve, but can generally be grouped into three categories: product recovery, soils remediation, and groundwater remediation. Product recovery may involve a wide range of methods for collecting liquid spills including adsorption, pumping, and destruction techniques. The technologies vary with the nature of the spill and chemical. The most common categories of soil remediation technologies include: 1. Removal, treatment and disposal 2. In-situ treatment 3. Containment. The first two categories can restore a site to undisturbed conditions or established standards. The third category involves technologies to encapsulate the contaminated material to prevent contaminants from migrating. Common methods of groundwater remediation typically involve pump and treat technologies, where contaminated groundwater is removed and treated. Due to the high cost and often very slow process of pump and treat methods, in-situ technologies are becoming more common. The typical range of costs associated with various remediation methods are summarized in Table 4. TABLE 4 TYPICAL COSTS OF REMEDIAL ACTIONS Remedial Action Typical Unit Cast Impermeable Cap over waste disposal site $400,000 per acre Contaminated Soil Removal and Landfiling $300 per cubic yard Contaminated Soil Removal and Thermal $500 per cubic yard Destruction Landfill Closure $250,000 per acre Lagoon Closure $500 per cubic yard

8 Drum Disposal in Landfill Drum Disposal in Incinerator UST Removal Groundwater Remediation Typical Small LUST site RI/FS Average LUST site remediation in Wisconsin $600 per drum $1,000 per drum $15,000 per tank $250,000 per acre $20,000 per site $70,000 per site CHALLENGES Responsible parties and their agents face many challenges when dealing with environmental contamination and restoration. These challenges are caused by such factors as: the level of uncertainties commonly encountered; a dynamic and constantly changing regulatory environment; legal and financial risks; and, high costs of investigation and remediation. Some specific challenges are briefly discussed below. Clean-up Standards: A Moving Target In the past, uniform cleanup standards have not existed, although standards for certain contaminants are beginning to be adopted. Historically, a clean up standard may have been based on detection limits, background concentrations, or current regulatory guidelines. Unfortunately, detection limits tend to improve with time, and regulatory guidelines change. As a result, ft is often difficult to define a remediation plan when design criteria is changing. An example of the impact of changing regulatory standards is the recently adopted standard for remediation of soils contaminated with gasoline range organics (GRO) in Wisconsin. For many years, Wisconsin DNR followed a guideline of 10 parts per million (ppm) for remediation of petroleum contaminated soils. Recent regulations Wisconsin Administrative Code, NR 700) now allow up to 100 ppm for the same sites. This higher standard, if implemented sooner, could have saved considerable costs to society. The root of the clean-up standard problem lies in the question of how clean is clean?" With pending reauthorization of CERCLA, it is hoped that Congress will require EPA to consider risk and cost factors when establishing standards. A better question may be, how clean is safe and reasonable?" This new perspective could significantly reduce remediation costs. However, in the short term, regulators and RPs will continue to struggle with the clean-up standard problem. Where are the Deep Pockets? Regulatory enforcement should not be based on the RP's ability to pay. In practice, however, the perceived financial ability of the RP or their insurer, influences regulatory enforcement. This is commonly called the Deep Pocket

9 phenomenon. Deep pocket sites generally receive greater regulatory attention, and requirements for compliance with clean-up standards tend to be more stringent. Also, when there are multiple RPs for a site, the deep pockets will be targeted for enforcement. The number of new deep pocket sites is declining, and regulators are dealing more with little guy" sites. Examples of little guy sites include small locally owned filling stations, spill sites owned by small business, and even the agricultural community. Over the past five to ten years, the small, locally owned filling station has become extinct due to the financial risks of operating such a facility. Most states recognized that strict enforcement at LUST sites would bankrupt most small businesses. To avoid the political backlash that could result, funding programs, such as the $70 million per year Wisconsin PECFA program, were developed to assist with remediating these sites. Similarly, Wisconsin regulators have generally avoided enforcement of agricultural chemical sites, pending creation of a similar funding mechanism. It is not meant to imply, however, that the little guy is protected from enforcement. Where site visibility is high, or there are significant environmental and health risks resulting from the site, look out! Look Out For EPAI Federally regulated sites fall under the jurisdiction of various agencies such as the Environmental Protection Agency (EPA) and the US Amy Corps of Engineers (USACE) for review, approval and implementation of remedial action plans. Experience shows that when the Federal Government is involved, costs escalate dramatically because of rigid and complex regulations, extensive reviews and re-reviews, unstable regulatory staff, and generally less emphasis on cost as a factor in the decision making process. As an example, the USACE recently contracted for design and construction of a soil vapor extraction system to treat contaminated soils at an army installation in Wisconsin at a cost of nearly $1 million. Similar systems are commonly used for remediation of petroleum contaminated soils at LUST sites, with a typical design and construction cost of less than $100,000. This comparison suggests that costs could escalate as much as a factor of 10 due to federal involvement! From past experience, an average escalation factor of 3 to 5 is probably more common. This is one of the primary reasons the consortium of PRPs for the Holtz-Krause landfill in Marathon County elected to proceed with remediation on their own, rather than allow the site to become involved in the Superfund program. Regulatory Agency Coordination Probably the most significant challenge facing RPs and their agents is dealing with enforcement and review actions of regulatory agencies. Some of the most common problems are related to inexperienced regulatory staff, changing

10 regulatory staff, inconsistencies with interpretation of regulations, and conflicting regulatory agendas. When regulatory enforcement staff include young, inexperienced scientists, important decisions can often be delayed or avoided. Regulatory staff also tend to be very mobile, which can have an adverse impact on maintaining enforcement consistency on typically long duration remediation projects. As staff changes occur, delays result as new regulators become familiar with the project history. New regulators may also introduce new requirements or perspectives, inconsistent with previous regulatory interpretations. As an example, remediation of a Wood County spill site has spanned a period of approximately five years, during which there have been no fewer than seven different DNR reviewers. Conflicting regulatory agendas between agencies can also be a challenge. In Wisconsin, DNR has primary enforcement authority over environmental remediation. However, the Department of Labor and Human Relations (DILHR) regulates UST installations, and the PECFA funding program. DILHR tends to have a more practical view towards remediation than DNR, with an emphasis on cost control. As a result, RPs and engineering consultants tend to be caught in the middle between two agencies with different requirements and perspectives. Similarly, the Department of Agriculture, Trade and Consumer Protection (DATCP) retains authority over the agricultural community, and also tends to be more protective of the special interests of agricultural site owners that DNR. Other Challenges Other challenges facing RPs include: 1. Lack of waste disposal sites - Since 1970, the number of landfills in Wisconsin have declined from 2,000 to less than 50. None of these sites are licensed to accept hazardous or radioactive waste. 2. Financial Risks - Funding such as PECFA is limited. Even at PECFA funded sites, the financial risk to RPs is significant, and could easily lead to bankruptcy in many small business situations. 3. Public Attitudes Towards RPs - The public forgets that contamination rarely results from intentional misconduct, and as a result, the image of an RP can be damaging for a local business. 4. Decisions become difficult when risk and uncertainty are high - Contaminants migrate, and delays in remedial action can result in a bigger problem over time. In some cases, immediate but incomplete or improper remedial action is better than no action at all. However, legal and financial risks tie the hands of regulators and remediation firms.

11 5. There are no guarantees! - There are high levels of uncertainties when dealing with the complexities of subsurface conditions and contaminant migration. Even the best intentioned clean-up plans can produce less than desirable results. PROTECTING YOURSELF A few simple guidelines will help businesses and individuals the risks of becoming involved in remedial actions. 1. Prevention and waste minimization is cost-effective - Understand and carefully manage wastes. Minimize waste generation, and assure proper handling and disposal of the wastes that are generated. 2. Be aware of potential risks - National standards have been recently developed for conducting Environmental Property Assessments (EPRAs). EPRAs can be a useful tool for investigating potential risks before purchasing real estate. 3. Good advice is a valuable tool - Seek the advice of legal counsel experienced in environmental law, and an experienced consultant, in the event of an enforcement action to assure your interests and rights are protected. 4. Initiate clean-up quickly, when possible - If contaminants are allowed to migrate, the extent of the problem, and potential financial risks will increase dramatically. The best advice is to use common sense. Try not to be associated with waste, and if you must, handle it carefully and properly. In other words, don't dump it on the ground or bury it out back".