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BLOG / 09.14.20 /Mark L. Manewitz

The New Discussion About Remediation — What is Really “CLEAN”?

The phrase “How clean is clean?” used to dominate all environmental remediation. Responsible parties, or as they are often called, “Potentially Responsible Parties (PRP’s) asked, “What are we going to do about the contamination in the soil or water once we test if its toxicity value exceeds the standards set by either the Federal Government or by the State in which the contamination exists?”

Often the only possible remediation is whatever can be done to reduce contamination to a value that is acceptable because it is not a health risk to be exposed to it, or (in the worst possible scenario) a child who is compelled to eat dirt. To address this, the EPA set up the Integrated Risk Information System (IRIS) Program in 1985 to provide an internal database of human health assessments for chemicals found in the environment. The goal of the IRIS Program was to foster consistency in the evaluation of chemical toxicity across the Agency. Since then, the IRIS Program has evolved with the state of the science as an important public resource to produce high-quality evidence-based assessments and to provide an increasing number of opportunities for public input into the IRIS process.

For at least 35 years, the EPA and many states (including New York and New Jersey) have used IRIS values to determine air, water, waste, and other regulations. Furthermore, many chemical and other manufacturers which use toxic substances in the manufacturing process rely on IRIS values to decide how to manage chemicals in their facilities and maintain a healthy workplace for workers in the facilities.

For the first time, the EPA will be releasing its own toxicity values, as part of the risk evaluations required by the amended Toxic Substances Control Act (“TSCA”). The new numbers are expected to clash with other toxicity values under IRIS which are decades old. The real question is which will be the applicable limit applied for remediation of hazardous substances.

Some writers think that if there are dueling EPA Chemical numbers for the health risks of the same contaminants, PRP’s will shop for lower numbers to allow less expensive methods of remediation of RCRA and CERCLA cleanups. Another school of thought simply points out that two sets of numbers will inevitably lead to hard discussions as to whether the older or newer data is more accurate. Some industry groups are praising the EPA’s chemical office for producing long-overdue updates based on sound science. But other writers indicate that some former agency scientists are criticizing EPA for deliberately producing numbers that favor industry and underestimate risks of toxic substances for health-based remediation.

The smart money is expecting that multiple toxicity numbers for the same chemical will lead to “venue shopping” to get the number that does what you wanted it to do for the placement of facilities with processes that are impacted by the toxicity numbers. Companies also will consider less expensive methods of cleanup to achieve the easier toxicity numbers.

In practice, though, the concerns of commentators may be overstated. One writer has noted that the EPA has already issued final heath-based numbers under TSCA for two chemicals. There does not appear to be much difference from the previous IRIS program and the new TSCA health based numbers, which does not give any insight as to how much the TSCA values will change previous IRIS values. In an article from the American Chemical Council Penelope Fenner-Crisp, a private consultant who worked in the agency’s water, pesticide, and chemical offices 20 years ago, also compared the IRIS values to similar numbers in the first 10 draft or final TSCA risk evaluations, and found them fairly consistent.

If a company is faced with a cleanup of a hazardous substance, the new TSCA value for the substance of concern may not have been developed , so the effective field-based requirements will remain the long- standing IRIS standard until another is adopted under the new TSCA review. Essentially, the existing IRIS standards will continue in force unless the EPA develops a new standard. There is no reliable way to predict when this will happen for any hazardous substances. Planning to apply old numbers and perhaps use new technology is a possibly cost-effective approach while waiting for a new value being adopted by EPA.

For more information contact:

Mark Manewitz
mmanewitz@sbjlaw.com