February 12, 2020

Corrective Action Applicability for Pesticide-Contaminated Soil/Buildings

Pesticides and RCRA have always had an uneasy relationship. Although some pesticides can cause detrimental health effects and increase cancer risks, EPA has long taken the position that pesticides, when properly applied for their intended use, are not solid waste for purposes of regulation under RCRA. Pesticide-contaminated soil does become a solid waste under RCRA, however, if excavated for disposal; if the excavated soil exhibits a characteristic, it would have to be managed as hazardous waste. [§261.2(c)(1)(ii), RO 11182, 12903] Presumably, this guidance for contaminated soil would apply the same way to buildings sprayed with pesticides to control termites—they would not be solid or hazardous waste until demolished. [RO 11841]

But what about pesticide-contaminated soil and buildings at a RCRA-permitted facility that is undergoing corrective action. Could these areas/buildings be solid waste management units (SWMUs)? RCRA Section 3004(u) requires “corrective action for all releases of hazardous waste or constituents from any solid waste management unit....” EPA has defined a SWMU as “any discernible unit at which solid wastes have been placed at any time, irrespective of whether the unit was intended for the management of solid or hazardous waste....” [55 FR 30808]

In RO 14921, EPA weighs in on this question for the former Kansas Army Ammunition Plant (KSAAP), which operated with a RCRA permit and is being cleaned up under corrective action. EPA acknowledges that characteristically toxic pesticides (e.g., chlordane, heptachlor) were appropriately applied to soil and buildings to protect the buildings from termites. However, “pesticides can become ‘discarded’...under circumstances where they no longer serve their intended purpose. The determination that pesticides have become discarded must be made based on site-specific conditions in each case. In the case of unusable buildings at the KSAAP, the factors considered—the intended use of the pesticides (to protect the buildings), the buildings’ condition (no longer usable), the future intent to demolish the buildings, and the projected land use—support the determination that the pesticides will no longer be used for their intended purpose and that they will become discarded when the property is sold. When pesticides are discarded, they become solid waste...and subject to corrective action authority.... Thus, the pesticides that were used on and around the wooden buildings at the KSAAP will be subject to corrective action under Section 3004(u)....”

Although previous EPA guidance was clear that soil/buildings contaminated with pesticides (applied for their intended use) would not become solid and potentially hazardous waste until they were excavated/demolished, this newly released guidance notes that a determination of discard (and accompanying solid waste designation) can be made for corrective action purposes before such excavation/demolition. Facilities undergoing corrective action need to be aware of this when addressing any pesticide-contaminated areas/structures.

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This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.