Does a skirmish taking place between the United States Army and the Environmental Protection Agency over the transfer of the former Kansas Army Ammunition Pant in Parson, Kansas threaten to condemn farmland sold for development to the status of RCRA hazardous waste sites requiring remediation and removal of agricultural pesticides? That seems to be a possible result if the EPA has its way.

Here is the background. In 2009 the Defense Department closed the Kansas Army Ammunition Plant. The plant consisted of 6,700 acres with roads, rail, water and wastewater treatment plants. Plans were soon underway to transfer ownership of the plant to the Great Plains Development Authority for an industrial park. A snag developed when it was determined that wooden structures had been treated with pesticides to protect them from termite damage. The EPA asserted that it had authority under the Resource Conservation and Recovery Act (RCRA) to require the cleanup of pesticides in the soil around buildings being demolished at facilities required to have permits under RCRA when the contamination might be the result of normal application of pesticides to the soil to prevent termite damage.

In a letter dated March 4, 2011, from Mathy Stanislaus, Assistant Administrator of the Office of Solid Waste ad Emergency Response, to Congresswoman Lynn Jenkins, the EPA pointed to its authority under section 3004(u) of RCRA to require that all RCRA permits issued by the EPA or an authorized State must include provisions for the cleanup of releases of both hazarous wastes and hazardous constituents. The pesticides are listed at 40 C.F.R. Part 261, Appendix VIII as “hazardous constituents” subject to the corrective action obligations of section 3004(u) of RCRA. The EPA reasoned that once a structure is no longer usable or is slated for demolition, “the pesticides no longer serve their intended purpose.” Even the sale of buildings with the knowledge that they will be demolished constitutes “disposal” under RCRA, according to the EPA’s interpretation. The EPA concluded that “[a]ny pesticide-contaminated soil disturbed through building demolition and excavation activities should be treated as hazardous waste if it is a RCRA listed or characteristic waste.” The obvious implication is that although the pesticide-containing soil was fine when there was a building there (presumably filled with people) it is suddenly a health risk if the building is demolished. This will mean that the soil must either be treated or hauled away to a hazardous waste landfill. That is an extremely expensive proposition, possibly driving up the cost of demolition quite considerably. This is a particularly perverse result given that the pesticides may not even be present in the soil at levels that exceed their original application rate.

One unintended, but direct, consequence is that this position raises the stakes for those property owners considering the use of legal pesticides at their labeled rate in order to protect the building from termites. If the owner does not use the pesticide, then the building may be destroyed. If the owner uses the pesticide, then the owner may be subject to millions of dollars in cleanup costs if the building has to come down anyway (perhaps because the owner waited too long to apply the pesticides).

At a minimum, there is a question as to whether this policy or interpretation by the EPA changes the parameters of the due diligence inquiries necessary for property transfers. If a facility has a RCRA permit, then the EPA seems to be arguing that common pesticides, or even pesticides in soil left over from farming operations, may trigger remediation. This would be a very strange result given the fact that we eat food grown on fields that contain pesticides. Why does the fact that a building will being torn down trigger a federal mandate to address a new health threat? The pesticide has not changed in its character. It is going to continue to kill bugs even if there is no building to protect. Also, how can environmental consultants distinguish between pesticides applied to protect buildings from pesticides applied to kill crop pests? Why should it make a difference?

The letter has a footnote which indicates that the “letter only addresses [EPA’s] authority at facilities required to have RCRA permits issued under Subtitle C of RCRA.” Therefore, the EPA will be able to argue that the impact of this dispute over pesticides will be limited in impact. However, the reasoning (or assumptions) behind the letter clearly suggest that the EPA may have its sights on the Agricultural industry in general.

The key to the EPA’s reasoning is what is most worrisome. The EPA is looking to the usefulness of the pesticide as triggering the possible requirement for an environmental cleanup. Although unstated, the EPA is necessarily taking the position that a pesticide’s regulatory protection is lost once the pesticide “no longer serves its intended purpose.” This same reasoning could be applied to other regulatory schemes such as CERCLA. Do we really want farmers to be required to conduct remediation of their farms before selling them for a new purpose? Even more pernicious is the possibility that the EPA might take the position that once a given pesticide application had run its course that the soil has to be dug up and hauled away to a hazardous waste facility. I understand that the EPA is not applying this policy to non-RCRA permitted sites, but the underlying reasoning behind the EPA’s position certainly opens up that possibility.

The best way to deal with this EPA policy is legislation providing that pesticides that are applied pursuant to their label are not deemed to be hazardous wastes when the pesticides no longer serve their intended purpose. This legislation should not be necessary because Congress already passed a comprehensive regulatory scheme for pesticides with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). That the EPA would ignore the congressional intent evident with the passage of FIFRA and deem pesticides legally used under FIFRA to be a hazard under RCRA is clear evidence that the EPA is taking an outcome-determinative approach to regulation.

Let there be no mistake. I have tested cropland for pesticide residue (a very expensive test) and the lab results that I have reviewed lead me to conclude that nearly all soil will have traces of the pesticides that have been applied to the fields. The half-life of many older pesticides means that fields can continue to contain quantifiable levels of those pesticides for many years to come. It would be a mistake for the EPA to take a position on pesticides in general in one bitter inter-agency dispute in Kansas that negatively affects all agriculture everywhere.

James Pray