EPA Criticizes WY "Brownfields" Law

by Steff Kessler

Nine months after the March 2000 passage of Wyoming's controversial "brownfields" law, the U.S. Environmental Protection Agency (EPA) has informed the state that the legislation may fail to meet federal standards for cleanup of hazardous waste facilities. The EPA's list of concerns closely tracks those raised by WOC over the past several years.

Wyoming's brownfields legislation has a lengthy and contentious history. Originally introduced in 1999 and written by Amoco supporters to reduce cleanup requirements at the defunct Amoco refinery in Casper, the brownfields law was severely criticized by the EPA and jeopardized Wyoming's entire hazardous waste program.

A legislative committee worked in the interim to revise the bill, but WOC found that the process was still heavily controlled by Amoco interests. During last year's debate on the revised bill, WOC pointed out several major flaws and potential conflicts with federal law. The EPA has now weighed in, confirming our analysis.

Amoco Fights Cleanup

The core of the brownfields debate revolves around what constitutes adequate cleanup requirements for hazardous waste facilities regulated under the federal Resource Conservation and Recovery Act (RCRA). In 1996, Wyoming voluntarily applied for and received permission to administer this federal law at the state level in lieu of federal control. The U.S. government provides the state with funding to carry out this responsibility as long as Wyoming's program is as stringent as the federal standards.

Yet in 1998, Amoco started a political process to try to weaken cleanup requirements at its abandoned refinery (a RCRA facility) along the North Platte River. The company wants to limit its costs by leaving more contamination on site and doing less actual physical and chemical treatment or removal of pollution.

WOC has consistently argued that public health and safety and environmental protection must take precedence over Amoco's desire to save itself a costly cleanup, and that despite Amoco's lip service to these goals, the legislation didn't achieve them. The EPA has reached the same conclusion.

EPA Weighs In

The EPA's recent letter identifies four major concerns with Wyoming's brownfields law:

• The law may not protect human health and the environment. The EPA calls the law "ambiguous" as to whether the Wyoming program's site cleanups will protect human health and the environment, as required by the Resource Conservation and Recovery Act. This flaw results from sections of the bill that allow alternate cleanup standards to be set by site-specific risk analyses, the use of "technical impracticability waivers" and reliance on institutional and land-use controls. (A technical impracticability waiver allows lowered cleanup standards where technical or economic impediments prevent a full cleanup.)
• The use of technical impracticability waivers conflicts with the Resource Conservation and Recovery Act. The EPA affirmed that "a technical impracticability finding should not be used to shield owners or operators of ongoing responsibility to ensure continued protectiveness of the remedy" and that subsequent advances in remediation technology could make further cleanup practical. This is especially true for groundwater. The EPA also admonished the state for basing this determination largely on economics: "Where a costly but more permanent physical remedy is under consideration, along with a less protective and less costly institutional remedy, it seems unlikely that the more permanent remedy would survive Wyoming's technical impracticality evaluation."
• The law reveals a strong bias in favor of the use of institutional controls instead of achieving cleanup through physical/chemical treatment, containment, removal or other engineering controls. WOC has repeatedly pointed out that institutional controls, such as zoning, lack reliability and a proven track record for long-term protection. The EPA agreed: "The use of institutional controls may be appropriate on some sites, but only after a balanced review of all site-specific circumstances. Further, institutional controls should be most often used in conjunction with, rather than in lieu of, physical/chemical treatment, containment, removal, or other engineering controls."
• Overall, it is unclear that the law's evaluation criteria will actually create a program that meets federal RCRA standards. The EPA expressed "an authorization concern" about a state program "designed in a manner that may foreseeably result in remedial choices that are consistently less stringent than at RCRA facilities." The agency requested the state's assistance in evaluating the program, and suggested a formal process, including the adoption of regulations, to ensure compliance with RCRA.

The EPA also echoed WOC's concerns regarding public participation, site characterization, conflicts with the Superfund law and options for evaluating cleanups. In addition, responding to WOC's request to the EPA last summer, the agency's letter lays out a process to ensure that identified weaknesses and ambiguities in the Wyoming law would be addressed. Thus, the state will attempt to make some changes in the law by introducing legislation (SF 130, "Voluntary Remediation Amendments") during this session. The EPA also wants to see a formalized Memorandum of Agreement with the state as well as state rules and regulations clarifying the remediation program. All of these administrative processes will be open for public participation and comment.

The EPA's letter comes as welcome confirmation of WOC's concerns with Wyoming's brownfields law. We hope the agency's intervention will prompt the legislative and regulatory fixes that have long been needed for this poorly developed law. S

Former WOC executive director Steff Kessler chairs the board of the Greater Yellowstone Coalition.