Foley Hoag, LLP
Seth D. Jaffe

May 13, 2015

Late last month EPA issued draft guidance on adjusting post-closure periods under RCRA.  It’s not good news.

Although the Guidance is technically neutral concerning shortening or lengthening post-closure periods, let’s not kid ourselves; this is all about extending post-closure care.  For how long?  How does forever sound?

Why do I think that this is all about extensions?  First, if anyone can give me any examples where EPA has ever decreased this type of monitoring/oversight period, I’d love to see them.  Second, the examples that EPA gives in the draft guidance are pretty much exclusively the types of issues that would lead to a longer post-closure period, rather than a shorter one.

In most cases, by the time a 30-year post-closure period has ended, a site will have achieved some time of equilibrium.  EPA acknowledges in the guidance that institutional controls can play a role in determining the length of a post-closure period, but why isn’t that the entire answer in almost all cases?

States routinely use institutional controls as the linchpin of permanent solutions for sites at which hazardous materials remain after active remediation is complete.  Shouldn’t RCRA do the same?

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This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Jaffe and may not reflect the opinions of Synergy Environmental, Inc., Foley Hoag LLP or either of those firms’ clients.