“It is the EPA’s decision that the pesticides are no longer protected under “intended use” when the structures are demolished or are to be demolished. Because of this, the chemical’s “intended use” is no longer applicable, and the pesticides become ”solid waste” and subject to RCRA Section 1004(27).”
Mathy Stanislaus, US EPA, Assistant Administrator for the Office of Solid Waste and Emergency Response (OSWER)
Department of Defense Inspector General (DOD IG)
Disagreements on Whether Applied Pesticides Require Cleanup Resulted in Potential Cost Increases and Delays
“Army program managers and the BRAC environmental coordinator at KSAAP incurred potential cost increases and delays because of disagreements among EPA Region 7, Kansas Department of Health and Environment officials, and themselves regarding the remediation of applied pesticides. Army and EPA officials discussed the cleanup of applied pesticides at KSAAP in letters spanning January 2011 to April 2012. It became apparent that their interpretations differed on the cleanup of applied pesticides. According to EPA officials, applied pesticides in the soil around buildings are considered “solid waste” under the Resource Conservation and Recovery Act (RCRA) if the buildings are demolished, and are thus potentially subject
to the corrective action terms of a RCRA permit. Army and DoD officials considered the applied pesticides to be products used as intended, not solid waste as discarded material, and therefore outside the scope of RCRA.9 According to the Army officials, it is an unexpected and extraordinary expansion of the obligations of RCRA to apply solid-waste-management requirements to soil where pesticides have been applied but “no longer serve their intended purpose.” Army officials discussed efforts to remediate the property with Kansas Department of Health and Environment officials, reaching the conclusion that the Army’s actions are in compliance with the environmental legal standards. According to Kansas Department of Health and Environment officials, Army and EPA officials were unable to reach an agreement. Army, EPA, and state environmental agency officials’ inability to reach an agreement sooner caused at least a 16-month delay in transferring the property and increased costs. According to the April 30, 2012, letter from the EPA, Army and EPA officials agreed to establish a joint work group to discuss and resolve site-specific issues to provide more consistency in addressing pesticides. As of June 2013, however, the Army reports that Army and EPA officials remain unable to reach an agreement.
EPA officials have RCRA permit authority and would not allow the closure of the RCRA permit from the phase 2 Economic Development Conveyance parcel of property (6,116 acres), because the Army and the EPA disagreed in their interpretation of the cleanup requirements for these materials. The Kansas Department of Health and Environment and the LRA resolved the RCRA permit disagreement through the Environmental Consent Order, which instituted an Environmental Use Control Program.10 The U.S. Army Corps of Engineers prepared and signed the deed for the LRA’s portion of the property in August 2012 and officially transferred 6,116 acres to the LRA.” See: DODIG-2013-114 (Project No. D2012-D000CG-0206.000) – August 6, 2013