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OCR for page 98
5
How Clean is Clean? The Need for Action
THOMAS M. RELLMAN AND DEBORAH A. HAWKINS
One of the major impediments to moving remedial cleanup
actions under any of the various federal and state laws that apply
is the resolution of the "How clean is clean?" issue. The statutory
definition of what factors must be considered in determining the
acceptable level of cleanup varies from law to law. These defini-
tions, which were developed by legislative processes in Washington,
D.C., and various state capitals, often are not clearly translatable
to a determination of cleanup levels at remediation sites. Instead,
they generate controversy and confusion. The practical result of
this situation is that the cost of remediation increases as does the
time required to implement solutions. Ultimately, fewer sites will
be cleaned up. In this paper, ~ will discuss the following issues:
the current legal/regulatory framework relative to cleanup
levels;
the cost and technical implications of various cleanup strat
egies;
the balance of today's cleanup costs versus future liabilities;
and
who ultimately pays.
CURRENT IEGAI/REG=ATORY FRAMEWORK
EPA has taken the position that a cleanup conducted under
the Resource Conservation and Recovery Act's (RCRA) corrective
action authority should be no different from a cleanup undertaken
under the Superfund program. Both actions target the cleanup
of historic contamination, and both have the same health-based
cleanup goals. One significant difference is the fact that RCRA
98
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HOW CLEAN IS CLEAN?
99
sites are generally associated with existing businesses; thus, oper-
ating revenues can be used to pay for the cleanup. These costs in
turn can be passed on to customers. This is not true for Superfund
sites, for which available funds are more lirn~ted.
Consistent with this position, EPA has announced its intent
to merge RCRA and Superfund cleanup approaches and to im-
plement a single programmatic response to the cleanup of historic
contamination. Congress, however, has not cooperated. Notwith-
standing EPA's official policy, differences in statutory language
and approach make the choice of undertaking a cleanup under the
authority of RCRA or Superfund an important one.
The recent enactment of the Superfund Amendments and
Reauthorization Act (SARA) has sharpened the differences be-
tween RCRA and Superfund. The statutes adopt divergent ap-
proaches on a number of critical issues, including cleanup stan-
dards, use of alternative concentration limits (ACEs), cost-effec-
tiveness considerations, and public participation. Under RCRA,
the requirements can be more stringent as the criterion of cleanup
to background is applied with an opportunity to modify cleanup
levels using the ACL risk management approach. The Superfund
procedure mandates more vigorous public involvement.
In 1987 EPA issued its formal statement of policy on RCRA
and Superfund in which it echoed the cleanup goal theme. When
identifying those cleanups that should be included on Superfund's
National Priority List and those that should be undertaken under
RCRA's corrective action program, EPA acknowledged that juris-
diction may lie under both statutes. The agency established a pre-
sumption in favor of RCRA-authorized cleanups for RCRA facili-
ties, but it emphasized that similar cleanup approaches would be
followed, regardless of whether a cleanup proceeded under RCRA
or Superfund. Agency spokesmen explained: "The Agency's goal
is to develop RCRA corrective action requirements that remove
inconsistencies between remedial actions performed under CER-
CLA and corrective actions performed under RCRA." In practice,
it may be difficult to achieve consistency between the two statutes
because cleanup authority under RCRA and Superfund is not
sirn~lar; in addition, each statute includes important elements that
may have significant impact on the cleanup decisions.
As a general rule, RCRA requires that cleanups protect "hu-
man health and the environment." Because RCRA is much more
of a hazardous waste management statute than a hazardous waste
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100
HAZARDOUS WASTESITEMANAGEM:ENT
cleanup statute, it provides no additional guidance on cleanup
methods. The statute includes no mention, for example, of whether
cost-e~ectiveness can or should play a role in selecting among reme-
dial alternatives, nor does it include any other guidance regarding
the type of remedy that should be employed in cleanups. By not
mentioning cost-effectiveness, the statute precludes consideration
of it. In fact, the legislative history indicates it is not to be consid-
ered. The use of ACEs determined by risk assessment is allowed,
however.
Even before its recent amendments, Superfund provided much
more explicit guidance. Like RCRA, Superfund adopted a health-
based standard, but it also specified that cleanups should be eval-
uated and selected on cost-effectiveness grounds. It also mandated
that fund balancing considerations were to be a part of the eval-
uation whenever Superfund monies are being used for cleanup
efforts.
Now, under SARA, the Superfund scheme includes additional
guidance and constraints on the selection of remedial actions.
Specifically, Section 121 of SARA includes a strong bias in favor of
permanent remedies and onsite remedies and requires that appli-
cable or relevant and appropriate state and federal standards be
applied. These requirements will ultimately be reconciled in the
National Contingency Plan.
Complementing the federal statutes are a number of state
laws that drive cleanup activities. Virtually every state has its
own form of the Superfund law, which requires the cleanup of sites
not addressed by the federal Superfund. Several states are taking
innovative approaches toward remediation of contaminated sites.
New Jersey has, under its Environmental Cleanup Responsibility
Act (ECRA), established a process by which the transfer of in-
dustrial or commercial properties on which hazardous materials
have been handled must be reviewed and approved by the New
Jersey Department of Environmental Protection to ensure that
any contamination has been cleaned up. This approach is being
considered in a number of other state legislatures. Massachusetts
approaches property cleanups using another method called Super-
lien. Under Superlien laws, the state has the first lien on properties
on which the state has expended money to clean up contamination.
The banking community in Massachusetts has become very con-
cerned about the potential consequences of making loans secured
by contaminated property and has required environmental reviews
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HOW CLEAN IS CLEAN?
101
of properties before making loans. Each of these laws ultimately
drives a decision on whether a property is deemed to be contam-
inated and, if so, what cleanup levels are appropriate. The "How
clean is clean?" issue is usually resolved on a site-by-site basis
using a combination of risk assessment techniques and applicable
standards.
The three criteria most often used by states to address the
level-of-cleanup issue are:
~ cleanup to background (the level at which no industrial
activity had taken place, allowing only for natural contamination,
pH, radioactivity, and so on);
cleanup to background, holding other responsible parties
accountable for the contamination they caused on the property;
and
care.
human health and environmental protection standard of
COST VERSUS CIEANUP [EVEIS
The two parameters most significantly affected by cleanup lev-
els are the costs of the cleanup and the time required to accomplish
the remediation. The overall impact of SARA on the Superfund
process has caused EPA staff to project a Month increase in
the time it takes to handle a Superfund cleanup-that is, from 58
months to 67 months. The remedial investigation/feasibility study
(RI/FS) work plan is supposed to be developed within 6 months
of the commencement of discussions with cooperative potentially
responsible parties (PRPs). The RI/FS itself will take another
18 months. The health assessment should be available toward the
end of the second year. Public and state comment will occur in the
third year, after which the record of decision (ROD) is prepared.
The remedial design will be available around the end of the third
year, and consent decrees may be entered at any time there is a
settlement. Thereafter, review and contracting will occupy most
of the fourth year. Remedial action, which takes an average of 2.5
years, will bring EPA's estimate of total elapsed time to over 6.5
years that is, the remedy is even further away.
This schedule illustrates that SARA has created a cleanup
process with great potential for inflating costs. New cleanup stan-
dards, health assessments, state and public participation, and
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102
HAZARDOUS WASTE SITE MANAGEMENT
TABLE 5-1 Summary of Record of Decision Results
Cleanup Options
Average Cost Reprised
Increase Multipliers Program Cost
EPA remedy 1.00 $16 billion*
Containment remedy 2.61 $39 billion
Least-cost permanent
solution 5.49 $81 billion
*These estimates were derived from the EPA average cleanup cost
estimate provided in the Superfund Section 301(a)~1~(c) study of future
funding needs. In that study the average site cleanup cost was
estimated at $8.84 million, and 1,800 sites were assumed to be listed
on the National Priority List. This volume results in a total program
cleanup cost of approximately $16 billion. The reprised program costs
are estimated by applying the cost multiplier to design, construction,
and operation and maintenance costs but not to remedial
investigation/feasibility study costs, which should stay the same.
Other new requirements of the statute all contribute to this poten-
tial. EPA has estimated that the cleanup requirements in SARA
would drive the cost of a Superfund cleanup from its present aver-
age of about $8 million-$9 million per site to between $25 million
and $30 million per site. States are responsible for paying 10 per-
cent of the cleanup costs at fund-financed sites, and many state
officials have expressed concern about the increased cost potential.
In a study carried out in 1986, Putnam, Hayes, and Bartlett,
Inc., examined all the RODs issued after January 1, 1985, to deter-
mine the costs associated with various cleanup options. Thirty-five
of these RODs were useful for the purpose of this study (Table 5-1~.
The practical result of the increased cost per site would mean
that either the Superfund tax would need to be adjusted to reflect
the added cost of the more stringent cleanup requirements or fewer
sites would be cleaned up.
The following case studies address the cost issue on a smaller
scale.
Case Study 1
A relatively small electric equipment repair shop located in
the southeastern United States had a polychIorobipheny! (PCB)
OCR for page 103
HOW CLEAN 15 CLEAN?
TABLE 5-2 Costs of Different Cleanup Levele
Remediation Level Volume
(ppm PCB) (cu. yd) Cost ($000~)
50 2,260 1,000
10 3,750 1,750
1 8,290 3,500
103
contamination problem. The solution was deemed to be offsite
disposal at an approved hazardous waste land disposal facility.
The costs were a direct function of the amount of soil to be removed
(Table 5-23.
In addition to cost considerations, a judgment must be made
on the wisdom of using limited hazardous waste disposal fa-
cilities to dispose of a relatively low-risk waste-that is, PCB-
contaminated soil.
Case Study 2
A trichIoroethylene (TCE) ground water contamination prob-
lem was discovered at a plant in the western part of the United
States. Cleanup of the ground water contaminated with 20 ppm
TCE was initiated by airstripping at a rate of 85 ppm. After 900
days of continuous pumping the TCE concentration in the aquifer
had dropped to 1.3 ppm. After an additional 700 days the con-
centration was 1 ppm. Thus, additional pumping had arrived at
a point of decreasing benefit because with time the concentration
was asymptotically approaching a nonzero value. The estimated
costs to reach various cleanup levels are given in Table 5-3.
The case study demonstrates the costs and the length of time
that would be required if low parts-per-billion cleanup levels are
required. It raises the practical question of who will be responsible
for these kinds of abatement systems 20 to 50 years from now when
the companies deemed responsible may no longer exist.
OCR for page 104
104
HAZARDOUS WASTE SITE A~4NAGEMENT
TABLE 5-3 Estimated Costs for Several Cleanup Levele
Total Cost ($000~)
Cleanup Level (ppb) Time (years)
2221,300 2.5
3121,000 d.5
~1,100100 20.0
-10,000 10 100.0
l~:Cl~OIOGY CONSIDE11ATIONS
Basically, the universe of cleanup problems we face can be
analyzed in terms of three major technology challenges: (1) con-
centrated residues sludges and drums containing hazardous ma-
terials are examples; (2) contaminated ground water typically
having relatively low levels of organic and inorganic contaminants;
and (3) contaminated soil with a wide variety of contaminants.
At least two of these problems are currently capable of solu-
tion. Adequate technology exists for concentrated residues because
they are essentially the same hazardous wastes managed under the
RCRA program. Ground water cleanup is In some respects merely
a different form of water pollution control. Obviously, these char-
acter~zations are an oversimplification, and yet, clearly much of
the technology for destroying residues and cleaning ground water
exists. The challenge ~ how to get that technology to the site
needing remediation. The cleanup of contaminated soil remains a
problem to be solved. For example, incinerating soil ~ extremely
expensive, and the "burnt soil" product may be as hazardous as
the original contaminated soil. Table ~4 shows various cleanup
options for PC~contaminated soil and their costs.
BALANCING CLEANUP COSTS VERSUS
FUTURE LIABIIITIES
In today's litigious society, more people are suing companies
over environmental contamination-related issues (e.g., drinking
water, property devaluation, illness, etc.~. For most large com-
panies, the annual transactional costs alone are measured in the
millions of dolBars.
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HOW CLEAN IS CLEAN?
TABLE 5-4 Cleanup Options and Costs for PCB-Contaminated
Soil (100 ppm PCB)
Treatment
Estimated
Cost/cu. yd
Landfill--no pretreatment
Fly ash/cement stabilization
Fixation onsite with inorganic
polymer/cement mixture
Chemical destruction onsite
In situ ~ritrif~cation (glassifying the
soil) maxtrix with complete destruction
of PCBs
Incineration of soil onsite
(PCB destruction)
$200-3400
$60-$80
3180
$100
$200-$250
3200-6300
105
The quandary we face is that the lower the cleanup stan-
dards that is, the more stringent they arc the higher the cost
per site and the longer each cleanup will take, with the result
that fewer sites will be cleaned. On the other hand, lower cleanup
standards may also result in lower future liabilities for responsible
parties with respect to the site being remediated. Clearly, when
responsible parties are evaluating what constitutes an adequate
cleanup level, consideration should be given to the impact of the
cleanup on future liabilities.
WHO PAYS?
The final unport ant question is, who pays? The answer is,
we all do. An examination of the magnitude of the monies being
expended today on cleanups may be instructive. Over the last few
years, based on the original Sup erfund, EPA's spending rate has
been about $20 million per month. It is now about $30 million per
month, about one-half of which is spent at waste sites. About 50
percent of waste site money goes for RI/FS; the remainder goes
for cleanup. Thus, $5 million to $10 million per month is being
spent by EPA on cleanup efforts. SARA will ultimately boost
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106
HAZARDOUS WASTE SITE MANAGEMENT
that spending rate to $100 million per month. EPA has indicated
that some 13 cleanups have been completed and about 300 are be-
yond the RI/FS stage. Companies with significant involvement in
national priority site listing, which essentially includes most of in-
dustrial America, are spending $15 million to $30 million per year
for cleanups. In addition, a number of states have passed rn~ni-
Superfund legislation to generate the necessary matching funds
and to undertake the cleanup of sites that are not on the National
Priority List. New Jersey and New York have significant funds
available for cleanup. As with the federal Superfund, these state
programs are generally funded by industry, and their costs are
ultimately passed on to customers in the form of higher prices for
American goods and services. Yet American industry pays an ad-
ditional price by being further disadvantaged in relation to foreign
competition in a world economy. The point is that we should all
feel responsibility for making sure that the limited resources avail-
able to address environmental contamination problems are spent
in the most effective manner. Some form of overall risk assessment
should be used to determine what action represents the greatest
risk reduction potential per dollar spent. EPA could then evaluate
its performance against a meaningful yardstick.
CONCH REMARKS AND RECOM~NDATIONS
In the arena of hazardous waste site cleanup, the price we
pay for inaction is elevated risk to the impacted population. The
decisionmaking process is often prolonged by the desires of certain
interested parties to achieve the ultimate solution, despite the ne-
cessity of working from an imperfect data base and using complex
yet unverified modeling systems. The attempt to distinguish be-
tween risk rates of 10-5 to 10-7 is somewhat analogous to trying
to distinguish between the third and fourth decimal place using a
slide rule it is in the error bracket. Clearly, a balancing of issues,
including public health, environmental protection, and economy,
must take place with a premium on cleanup action.
We often lose sight of the tremendous disjunction between
the "How clean is clean?" issue and the real world. Through
increased political and agency pressure, we are tightening cleanup
requirements to degrees of stringency that push the cost of cleanup
beyond what is possible, thus inducing further delays. We spend
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HO W CLEAN IS CLEAN?
107
too much time on site-specific data development and modeling-
especially considering the complex "chemical soup" that exists at
most sites, which is too complicated for our current techniques
to model accurately. These issues may be some of the underlying
causes of the lack of achievement in the Superfund program to
date.
We need more objective future-use considerations in our reme-
diation planning. We need to take site-specific actions consistent
with good engineering practices and the circumstances of the site.
We must also develop a decisionmaking system that can be ap-
plied on a mass production basis. The premium must be on getting
cleanup activities under way with incentives built in for those who
are willing to go forward. The solutions may not always be perfect,
but let us opt for some imperfection versus paralysis.
REFE1lENCE
Putnam, Hayes, and Bartlett, Inc. 1986. Cost Implications of Changes in
Superfund Cleanup Standards. Study conducted for U.S. Environmental
Protection Agency, Washington, D.C.
PROVOCATEUR'S COMMENTS
flyby Page
I thought that Tom HelIman's paper was thoughtful and inter-
esting. He said in the paper that we have a confusing set of criteria
that counteract each other and lead to inefficiencies. He also said
there are diminishing returns that waste cleanup. Nonetheless, he
pointed out that we have to do some sort of balancing because we
have mixtures of goals and mixtures of costs. As a practical result
we end up having a few big sites treated to a large extent, and we
lose efficiency in the course of that. We might do better with less
treatment and more sites and quicker treatment. This is a theme
that makes sense to me.
To move from this summary to something a little more provoc-
ative, ~ will say that what we really need to do is think about what
is driving the present system and what we will need to change
in order to drive it in the direction we would like to see. One
of the things that is driving the system is liability. The liability
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108
HAZARDOUS WASTE SITE MANAGEMENT
issue is certainly affecting the way industry is doing things. It
is also affecting the way regulators are doing things, and this is
not as well known. But ~ think it is import ant. Liability from a
regulator's point of view has to do with how much trouble he can
get into from making a decision. When you think of liability in
that sense, it explains some of the delay that we are seeing. If you
put off a decision and have another study, wait a few years, get a
contractor's report, all of this puts distance between you and the
liability you wright fee] for your decisions. ~ think this is part of the
problem. Another part of the problem is that if you ever sign off
on something, saying, I This is clean enough, let's stop work," you
might get into trouble. If you drag on the process and insist on
more and more, then you put off the day of reckoning and you put
off the liability. Therefore, liability affects not only what industry
does but also the way regulators work, and the combination of the
two can lead to some of the things Tom has observed especially
the phenomenon of a small number of large-scale cleanup sites.
A second thing driving the system and leading to inefficien-
cies is the old-fashioned way of looking at uncertainty and making
decisions on the basis of it. In contrast to our management of
toxic wastes, there has been a shift in economics, and the de-
cision sciences quite generally, toward the ideas of de Finetti,
Ramsey, Savage, and others. These decision theorists are more
explicitly judgmental and subjectivist than traditional scientists
and statisticians. The modern decision theorists do not believe in
probabilities being "really out there. They do not think of proba-
bilities being in the dice or in the toxic chemical; they believe that
probabilities are "really in here, in the judgment, in the mind of
the assessor. This newer perspective changes the way one looks
at decisionmaking. It means that one makes probabilistic evalua-
tions of scientific uncertainty, including both systematic error and
measurement error. Probabilistic assessment of systematic error
is often lacking in current risk assessments. We often substitute
analyses of measurement error for analyses of the assessment of
systematic error. Instead of saying a mode} is useful in the sense
that it yields information for a decision in a particular way, we say
it is either valid or not valid in a very brittle kind of way. This
either/or approach has gotten us into trouble when we deal with
decisionmaking under uncertainty.
A third thing driving the system is our difficulty in dealing
with criteria other than efficiency. To an economist the criterion of
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HOW CLEAN IS CLEAN?
109
economic efficiency is precise. It can be translated under varying
kinds of assumptions into criteria having to do with cost-benefit
analysis, risk-benefit analysis, cost-effectiveness, the minimization
of costs not just for the particular project but in the design of
the institutional device to make it work, and the minimization
of costs over an entire decision process. All of this is a well-
trodden field. ~ do not think it has been applied very well in the
case of the Superfund program, but actually the consideration of
efficiency is the easy part. The hard part is that other criteria
are also important, criteria that have to do with distributional
considerations such as the protection of victims and restitution for
those who are harmed. Another criterion has to do with corrective
justice, the holding to account of a perpetrator of bad actions.
In the case of Superfund, this is usually translated into money
that the polluter should pay. Distributional criteria are important
and help explain why we have had so much trouble implementing
straightforward cost-benefit analysis, which tends to neglect them.
A concern for distributional criteria also helps to explain another
anomaly: we seem to be spending enormous amounts of money on
the remediation of hazardous waste-sites, whereas we seem to be
much more accepting of hazardous materials in other media, such
as air or surface water. If you think of what it takes to identify a
source, it may be easier in the arena of ground water protection
than it is in the air, and that may help explain why there is greater
political salience for one rather than the other.
These three things our current approaches to liability, un-
certainty, and distributional criteria- can be added to the obvious
fourth factor, the traditional conflicts between the potential gain-
ers and losers from any collective decision. The four factors help
explain not only what is driving the system but also why it is so
hard to get to a satisfactory destination.
Representative terms from entire chapter:
cleanup levels
