18 ELR 10518 | Environmental Law Reporter | copyright © 1988 | All rights reserved

CERCLA Compliance With RCRA: The Labyrinth

Editors' Summary: The question of to what extent Superfund cleanups must comply with RCRA's hazardous waste disposal requirements — often called the "RCRA/CERCLA interface" — is easily one of environmental law's most complex issues. It must be addressed at virtually every cleanup site, and millions of dollars of cleanup costs and months of delay can hang on its resolution. In this Article, the author describes the evolution of the doctrine that Superfund remedial actions must comply with the "applicable or relevant and appropriate requirements" (ARARs) of other laws. He then examines in detail EPA's long and frustrating effort to clarify how the ARARs concept should operate in the context of Superfund's compliance with RCRA. The author suggests that much of the problem in trying to apply RCRA's requirements to CERCLA activities is a result of the fundamentally different purposes of the two programs: RCRA is a preventive statutory scheme, while CERCLA is remedial. According to the author, this difference is the root of EPA's difficulty in formulating a coherent and workable approach. He asserts that EPA has done its best within the limits of the existing statutory schemes, but that congressional action is necessary. The author proposes specific amendments that Congress should adopt in the upcoming RCRA reauthorization to recognize the difference between prevention and cure.

[18 ELR 10520]

Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)¹ in 1980 to solve the nation's worst unaddressed hazardous substance releases. CERCLA established a $ 1.6 billion "Superfund" to provide money for the cleanup of such releases.

Although purportedly comprehensive, CERCLA lacked provisions establishing whether the requirements of other environmental and public health laws should be applied to on-site response actions.² Furthermore, CERCLA was not explicit about the appropriate extent of cleanup. CERCLA § 105³ left the determination of the appropriate extent of cleanup entirely to the executive by directing the President to revise the National Contingency Plan for the Removal of Oil and Hazardous Substances (NCP),⁴ which had been promulgated pursuant to § 311 of the Federal Water Pollution Control Act (FWPCA, or Clean Water Act),⁵ to reflect the expanded authorities created by CERCLA regarding hazardous substance response. Section 105 merely directs the President to include in the revised NCP methods and criteria for determining the appropriate extent of waste removal and remediation.

In the absence of statutory guidance on these important questions, the United States Environmental Protection Agency (EPA) embarked on a lengthy attempt to determine to what extent standards and technological requirements from other statutes are to be used in the Superfund process. Much of that effort has been devoted to an attempt to clarify the applicability of Subtitle C of the Resource Conservation and Recovery Act (RCRA),⁶ concerning the handling and disposal of hazardous wastes, to CERCLA cleanup activities. Although EPA has for the most part done its best within the current RCRA and CERCLA statutory regimes, this attempt has resulted in confusion and wasted resources. This Article first examines how EPA addressed the general question of the relationship between federal statutory environmental standards and Superfund, and then chronicles the Agency's attempt to clarify the particular interface between RCRA and CERCLA.

The Development of the Concept of ARARs

The 1982 NCP Revisions

During the 1982 NCP revisions,⁷ EPA had considered establishing national cleanup standards but rejected that concept at the time in favor of allowing cleanup standards to be set on a site-by-site basis. The Agency reasoned that it could not set national cleanup standards because of its lack of experience and because of the varied conditions at CERCLA sites. Furthermore, EPA believed that circumstances would often arise for which there would be no clearly applicable standards.⁸ EPA further argued that it would be too burdensome and time-consuming to set new standards for the hundreds of hazardous substances to which it would be responding with remedial cleanup actions.

As an alternative to setting national cleanup standards, EPA developed the remedial investigation/feasibility study (RI/FS) system. EPA described the RI/FS as a "methodology which would provide structured and reasoned decision making while still allowing flexibility to deal with unique and unforeseen characteristics…. The methodology emphasizes cost-effective, environmentally sound remedies which are feasible and reliable from an engineering standpoint."⁹

Industry generally liked this approach, while environmental interest groups viewed it as being too flexible to ensure adequate protection of health and the environment at every cleanup site. The Environmental Defense Fund (EDF) and New Jersey criticized EPA's decision not to require that state and federal health and environmental standards be used in developing remedies. Rather, they believed that EPA should have specified minimum levels of hazardous substance removal that must be attained in any cleanup activity.

EDF and New Jersey therefore challenged EPA's revisions to the NCP, based on the above criticisms, as well as on some additional complaints about the NCP revisions. These challenges were settled before the parties were to file their briefs in the case.¹⁰ With regard to the appropriate [18 ELR 10521] extent of cleanup, the settlement called on EPA to: (1) require that relevant quantitative health and environmental standards and criteria developed by EPA under other programs be used in determining the extent of the remedy, and (2) promulgate a rule addressing the issue of whether response activities must comply with other federal, state, or local environmental laws.

The 1985 NCP Revisions

EPA implemented the settlement agreement by issuing the October 2, 1985, CERCLA Compliance With Other Environmental Statutes Policy (Compliance Policy), and by incorporating the "heart" of the Compliance Policy into revisions to the 1982 NCP. The "heart" of the Compliance Policy is a statement that, barring a few very limited exceptions, CERCLA responses must comply with the applicable or relevant and appropriate requirements (ARARs) of other laws.¹¹

The Agency published the Compliance Policy (which had already been distributed to the EPA regions) as an appendix to the preamble of the NCP.¹² The Compliance Policy was almost published as an appendix to the rule, but EPA decided against this because the Compliance Policy contained two very controversial lists. One list contained an initial compilation of all of the federal environmental and public health requirements that were potentially applicable or relevant and appropriate to all CERCLA remedial actions — all potential ARARs. The other list compiled all the federal criteria, advisories, guidance, and state standards that were potentially worth considering (and using, at EPA's discretion) at all CERCLA sites. The reason that the requirements included in these lists are qualified as "potential" is that conditions at CERCLA sites are too varied and unpredictable to enable EPA to make a definitive list of requirements that will be applicable at every site. Therefore, the two lists contain requirements and standards that potentially apply to CERCLA sites — depending on the particular circumstances existing at each site. The difference between the two lists is that the list of potential ARARs contains only those requirements that were promulgated according to the notice and comment procedures of informal rulemaking under the Administrative Procedure Act (APA). Furthermore, EPA reasoned that all of the potential ARARs had to be legally enforceable across the nation.¹³ The second list of other federal criteria, advisories, guidance, and state standards to be considered, contains standards and guidelines that are not legally enforceable across the nation. The standards, criteria, advisories, and guidance on the second list are not considered as important or as binding on the parties responsible for cleanups as those requirements contained in the first list.

The Agency declined to incorporate these lists in the rule out of concern that because the lists represented a first attempt, they were not yet comprehensive enough. Furthermore, any additions or subtractions from the lists would require an amendment to the NCP. Thus, EPA sought to avoid the possibility of numerous and confusing amendments to the NCP.

Several commenters on the proposed 1985 NCP revisions charged that the NCP's articulation of compliance with other laws was too vague. They argued that it was necessary for EPA to specify standardized procedures and criteria concerning how ARARs would be identified at all sites, so that others could use the same procedures and arrive at the same conclusions as EPA's concerning which ARARs apply to any given site. They argued that such standardization would be especially helpful to potentially responsible parties, enabling them to prepare themselves effectively in the event that EPA decided to take enforcement and cost recovery actions against them.

Declining to change the proposed rule to accommodate these commenters' concerns, EPA responded that the NCP [18 ELR 10522] was merely a framework for federal response to hazardous substance releases, and that the type of procedural detail requested by these commenters was more appropriately placed in guidance documents. Accordingly, EPA promised to develop guidance about how to identify and use ARARs at CERCLA cleanups.

The CERCLA Compliance With Other Laws Manual

Thus the CERCLA Compliance With Other Laws Manual was conceived. The Manual is divided into different volumes for different statutes. Volume I of the Manual, covering compliance with RCRA requirements, was started before the NCP was published in the Federal Register on November 20, 1985, and has been fleshed-out and revised many times in the past three years. At this writing, the RCRA volume and the volume addressing compliance with the ARARs of the FWPCA are undergoing review by the Office of Management and Budget (OMB), and are scheduled to be available to the public for the first time in late 1988.¹⁴ The volume that addresses compliance with the ARARs of the Clean Air Act and various other environmental laws should be available to the public sometime in early 1989. As promised to the commenters on the 1985 NCP (albeit somewhat late), the Manual will provide a detailed analytical process for identifying and complying with the ARARs of different statutes at all CERCLA sites.¹⁵

The 1986 CERCLA Amendments

When Congress passed the Superfund Amendments and Reauthorization Act (SARA) of 1986,¹⁶ it did what it had failed to do in 1980: it addressed the applicability of other laws in the establishment of CERCLA cleanup standards.¹⁷ SARA not only codified EPA's concept that, as cleanup standards, the requirements of other laws are potentially applicable or relevant and appropriate, but also upheld the notion that this decision is made on a site-by-site basis. The 1986 amendments provide that once ARARs for a site have been identified by EPA, the chosen remedial action must at least comply with the ARARs.¹⁸

That Congress so chose to simulate the NCP language concerning ARARs is significant. It signifies congressional approval of the fundamental proposition that EPA is responsible for determining whether other environmental and public health laws are applicable or relevant and appropriate to CERCLA cleanups on a site-by-site basis, and that compliance with those ARARs, coupled with a site-specific risk assessment, determines to some degree the appropriate extent of cleanup. Congressional acceptance of this basic approach to determining the appropriate extent of cleanup foreclosed for the time being the various other approaches that had been suggested to the Agency.¹⁹

Congress did, however, make some major adjustments. Most important, the amendments made some significant additions to the list of potential ARARs. Before reauthorization, EPA had considered whether state standards that were more stringent than federal standards, maximum contaminant level goals (MCLGs) established under the Safe Drinking Water Act (SDWA),²⁰ and federal water quality criteria (FWQC) established under the FWPCA²¹ should be included in the list of potential ARARs. EPA decided to place these three categories of standards in the secondary "to be considered" list. This meant, in essence, that the Agency didn't have to use them if it didn't want to use them. But SARA reversed the Agency's decision on that issue by explicitly stating that those standards were potential ARARs.²²

[18 ELR 10523]

In addition, SARA added a preference for permanent remedies. Congress was not satisfied that attainment of ARARs represented the appropriate extent of cleanup. Members of the House Energy and Commerce Committee and their staff had the perception (perhaps left over from the era of EPA Administrator Ann Burford and Office of Solid Waste and Emergency Response Assistant Administrator Rita Lavelle) that EPA was consistently choosing cleanup methods that, although compliant with ARARs, were only minimally adequate. For example, different kinds of remedial actions that can be taken at any given CERCLA site offer differing degrees of lasting protection. These remedies can thus be ranked on a spectrum of permanence or protectiveness-over-time, with one end representing the minimum short-term protection allowed under the law (usually called "capping" or "containment") and the other end representing the greatest degree of long-term protection available (usually called "total treatment," "permanent remedy," or "total detoxification"). Before the 1985 revisions to the NCP, EPA had consistently chosen remedies along the low end of the permanence spectrum. EPA's theory then was to respond to hazardous substance releases by merely limiting exposure to the hazard through containing and capping the site. Although costing less than treatment remedies that destroy the hazardous nature of hazardous substances, containment remedies create the potential for failure of the containment at some later date, and the potential for more remedial action. After the departures of Burford and Lavelle, EPA was free to admit that its previous remedies had been inadequate (interms of providing lasting protection) and that the sites at which they had already been applied would eventually require more remedial action. In an effort to rectify its mistakes, EPA revised the NCP to delete the previous requirement that the lowest cost remedial alternative be chosen²³ and added a requirement to consider alternative treatment technologies. Moreover, the Superfund Innovative Technology Evaluation program was created to enhance the development and demonstration, and thereby establish the commercial availability, of innovative technologies at Superfund sites as alternatives to land-based containment disposal technologies. But all of this was evidently too little and too late to satisfy Congress.

Because each different type of remedial alternative has its own specific set of attendant ARARs, merely requiring that remedies comply with ARARs generally does not give much direction regarding the type and degree of permanence of the remedy to be selected. Realizing this, congressional committee staff put compliance with ARARs into perspective by adding language that establishes a strong preference for the selection of remedies that offer long-term protection.²⁴ The message is clear: EPA should [18 ELR 10524] stop choosing remedies that merely limit exposure to the hazard (capping or containment), and start choosing remedies that reduce or eliminate the hazard itself (detoxification and incineration). Therefore, the impact of the new "permanence" language on ARARs is that treatment-related ARARs as well as emission-related ARARs will become more prominent concerns in many CERCLA responses.

How ARARs Are Supposed to Work

ARARs Are Substantive

ARARs do not include procedural and administrative requirements. CERCLA § 121(e) codifies the 1985 NCP exemption from compliance with procedural or administrative requirements for on-site response actions.²⁵ This is expressed in the statute as a permit exemption that allows the response action to proceed in an expeditious manner, free from the potential lengthy delays of approval by administrative bodies. Yet, these on-site response actions must still comply with all substantive requirements that pertain directly to actions or conditions in the environment.

The Three Types of ARARs

Substantive requirements generally can be broken down into three very different types of ARARs: chemical-specific, action-specific, and location-specific.²⁶

Chemical-specific ARARs are those that place a health-based or risk-based limit on the amount of a given chemical that can be discharged into, or be present in, the environment. Chemical-specific ARARs may be expressed either as numerical concentration limits, as emission or effluent discharge limits, or as a methodology for establishing such limits.²⁷ Examples of chemical-specific ARARs include maximum contaminant levels (MCLs) and MCLGs under the SDWA,²⁸ FWQC under the FWPCA,²⁹ state water quality standards,³⁰ and national ambient air quality standards (NAAQSs) and national emission standards for hazardous air pollutants (NESHAPs) under the Clean Air Act.

Action-specific ARARs are generally technology-based. They either place restrictions on, or establish directives to undertake, specific types of remedial or waste management activities regarding hazardous wastes. RCRA's closure regulations are an example of action-specific ARARs.³¹ These regulations basically permit two ways to decommission a hazardous waste surface impoundment: disposal closure and storage closure.³² Response actions "trigger" the applicability or relevance and appropriateness of action-specific ARARs such as the closure regulations. For instance, if the remedial action taken on a CERCLA surface impoundment involves a sealing-off and covering of the waste to minimize leachate production and ground-water contamination, this would trigger the use of RCRA's disposal closure regulations.

Action-specific ARARs can be found in other statutes as well. FWPCA's pretreatment regulations, such as the general and specific prohibitions against pass through and interference and the regulations controlling corrosivity, ignitability, and excessive temperature, would be applied through local limits to any CERCLA actions that discharge treated wastewater to publicly owned treatment works.³³

Location-specific ARARs are restrictions against certain kinds of action in some locations because the location is somehow special. For instance, Executive Orders 11988³⁴ on floodplains and 11990³⁵ on wetlands place specific limits on federal activities in floodplains and wetlands. Other examples are location-specific ARARs under state law that ban the siting of hazardous waste management facilities in locations at which hydrogeological conditions are not favorable.

ARARs Are Site-Specific

ARARs are not nationally applicable cleanup standards. The potential ARARs listed in the Compliance Policy potentially apply to any given CERCLA site because each ARAR must be identified on a site-by-site basis (i.e., different requirements are applicable or relevant and appropriate to different sites). For example, the owner or operator of a site at which liquid polychlorinated biphenyls (PCBs) are found in concentrations greater than 500 parts per million (ppm) is required by Toxic Substances Control Act (TSCA) regulations to incinerate the contamination.³⁶ Thus, the ARARs for a CERCLA site with PCBs may be radically different from the ARARs for a CERCLA site with arsenic contamination that is merely being capped.

The circumstances in which contamination is found and remedied at CERCLA sites are far too varied to allow the promulgation of a uniform set of minimally adequate cleanup standards for all sites. Such standards would be either over-protective or under-protective, and almost always too inflexible.

ARARs Generally Do Not Indicate Which Remedial Alternative Is Best for the Site

When EPA promulgated the 1985 revisions to the NCP, it stated that it had solved the puzzling "how clean is clean" question. In the preamble to the 1985 NCP revisions, EPA stated:

Despite general support for responses to hazardous [18 ELR 10525] substance releases, the proper level of cleanup in specific instances is often disputed…. EPA has determined that the requirements of other Federal environmental and public health laws … will generally guide EPA in determining the appropriate extent of cleanup at CERCLA sites….³⁷

EPA went on to say that the selection of remedies that attain applicable or relevant and appropriate requirements would ensure "that adequate protection of public health and welfare and the environment will be achieved…."³⁸

Nevertheless, in the year that transpired since those statements were made, EPA found that ARARs are somewhat limited in their usefulness for determining the appropriate extent of cleanup. As the task of analyzing ARARs and compiling draft guidance on the identification and use of ARARs proceeded, it became clear that in most situations, ARARs did not fully answer the "how clean is clean"³⁹ question.

One reason that compliance with ARARs does not constitute a total answer to the question of the appropriate extent of cleanup is that most ARARs are of the action-specific variety. It takes the selection of the particular type of response action to triggeraction-specific ARARs. Once triggered, these action-specific ARARs do provide instruction on how best to carry out the particular action to which they apply, but they generally do not provide sufficient guidance as to which remedial action should be selected in the first place.⁴⁰

Chemical-specific ARARs can indicate the appropriate extent of cleanup, but chemical-specific ARARs only address ambient chemicals in the environment and discharges of chemicals to the environment. Therefore, chemical-specific ARARs only indicate the appropriate extent of cleanup under the following two very limited circumstances: (1)(a) the site contains hazardous substances for which health- or risk-based chemical-specific ARARs exist (usually concerning contamination of water) for the exposure pathway of concern, and the remedial action selected is designed to reduce contamination to safe levels as determined by those health- or risk-based chemical-specific ARARs,⁴¹ and (b) there are no interactive effects resulting from the presence of other chemical substances at the site, so that the chemical-specific ARARs are protective for the exposure pathway of concern, or (2) the remedial action selected involves treatment of contaminated media that will produce a discharge to the environment for which a chemical-specific ARAR with a discharge or emission limitation is pertinent.

Another factor limiting the ability of chemical-specific ARARs to indicate the appropriate extent of cleanup is the fact that, at the time of this writing, there are only 29 final MCLs,⁴² 95 FWQC, 6 NAAQSs, 10 NESHAPs, and an undetermined number of state standards that are potentially applicable or relevant and appropriate to hazardous substances at Superfund sites. However, there are many hundreds more chemicals and chemical mixtures found at CERCLA sites.⁴³ Furthermore, there are absolutely no standards concerning acceptable ambient concentrations of hazardous substances in soil, which is the primary medium of concern to most Superfund cleanups.

Therefore, when there is a chemical-specific ARAR for a released hazardous substance in the exposure pathway of concern, and there are no interactive effects from other chemicals, the ARAR can indicate the required depth and circumference of excavation of contaminated soil and debris,⁴⁴ the treatment level target for contaminated water, or the amount of a chemical permitted in the discharge from the treatment of a contaminated medium. This type of ARAR generally does not indicate which remedy to choose from an array of remedial action alternatives, each of which achieves a different level of permanence.

Location-specific ARARs, like chemical-specific ARARs, give some limited indication of protectiveness and [18 ELR 10526] the appropriate extent of cleanup. This is because location-specific requirements restrict activities in certain locations. For example, if Superfund is addressing a site in a wetland, there are certain activities it cannot undertake without violating Executive Order 11990. But, as with the other ARARs, these restrictions generally do not indicate which remedial action alternative is the best choice to select.

The limitations of ARARs demonstrated to EPA and to Congress that the missing ingredient to the "how clean is clean" question was the degree of permanence (protectiveness over time) that remedies should achieve. The CERCLA amendments may or may not have provided this missing ingredient. While the amendments contain language indicating a strong preference for the selection of more permanent remedies, the various new requirements are vague and somewhat incongruous. Although CERCLA supplies several different criteria for selecting remedies,⁴⁵ some of the criteria compete with other criteria, and the competing statutory criteria are not weighted or ranked in any order of priority so that they can be applied in a standardized fashion at CERCLA sites.

For instance, although CERCLA requires the selection of remedies that "utilize permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable,"⁴⁶ neither the plain language of CERCLA, nor its conflicting legislative history offers direction in resolving the tension between this requirement and CERCLA's requirement to select cost-effective remedies.⁴⁷ The "maximum extent practicable" can be interpreted in two divergent ways. Using one interpretation, the Superfund program determines the maximum extent of treatment practicable by balancing the cost-effectiveness of implementing an expansive treatment remedy against the cost-effectiveness of implementing a less expansive treatment remedy at a particular site.

The other interpretation suggests that the Superfund program should always select remedies that employ the maximum amount of treatment — without regard to cost — unless the treatment technology required to implement such a remedy at a particular site is not practicable (i.e., has never been proven or shown to be capable of implementation). Using this latter interpretation, the required cost-effectiveness evaluation is reduced to the selection of the least costly of different technologies that would achieve the expansive treatment scheme. If this latter interpretation of "maximum extent practicable" were to prevail, the Fund might rapidly be depleted to pay for expensive treatment remedies.

Although such vastly different outcomes are possible depending on the priority or interpretation that the Superfund program gives to CERCLA's remedy selection criteria, the 1988 NCP revisions do little more than restate the various statutory criteria for selection of remedy.⁴⁸ Thus, the draft proposed rule does not attempt to resolve many of the important interpretation issues.⁴⁹

The Difference Between Applicable Requirements and Relevant and Appropriate Requirements

The term "applicable or relevant and appropriate" has a special definition and has become both a term of art and a byword within the Superfund program. CERCLA § 121(d)⁵⁰ refers to applicable or relevant and appropriate requirements without defining them — evidently leaving their definitions in the 1985 NCP revisions intact.⁵¹ The term "ARAR" refers to a requirement that is either applicable or relevant and appropriate; it cannot be both. There is a big difference between applicable requirements and requirements that are relevant and appropriate. The two kinds of requirements differ in the amount of discretion allowed in identifying them. Basically, applicable requirements are those requirements that apply as a matter of law to a chemical, remedial action, or place involved at a CERCLA site.⁵² On the other hand, relevant and appropriate requirements are those requirements that for some reason are not legally applicable, but, in the discretion of the decisionmaker, should be used at a CERCLA site anyway.

The basic criterion for determining whether a requirement is applicable is that the requirement, restriction, or directive applies as a matter of law under specified circumstances, which are identical to those present at the CERCLA site in question. Applicable requirements are those cleanup standards, standards of control, and other substantive environmental protection requirements, criteria, or limitations promulgated under federal or state law that specifically address a hazardous substance, pollutant, contaminant, remedial action, location, or other circumstance at a CERCLA site. In other words, an applicable requirement is one that is designed to apply to problems identical to those encountered at the CERCLA site.

[18 ELR 10527]

To determine whether a given requirement is applicable, one must determine from a reading of the statute, its regulations, the relevant case law, and the legislative history:

who is subject to its authority;

what types of activities it requires, prohibits, or directs;

what types of substances are within its authority;

what types of places are within its authority; and

when it is in effect (the time period within its jurisdiction).

If the jurisdictional prerequisites and the pertinent facts correspond, then the requirement is legally applicable. If there is not a clear match, the requirement is not applicable. This is largely an objective determination; little discretion is involved in matching the jurisdictional prerequisites with the facts of the site.

If a requirement is not applicable, it may be relevant and appropriate if it addresses problems sufficiently similar to those encountered at the CERCLA site that its use is well-suited to the particular site. The following characteristics of the requirement should be compared to those of the CERCLA action or site:

Whether the specific objectives of the statute and regulations under which the requirement was created are similar to the specific objectives of the CERCLA action;

Whether the media regulated or affected by the requirement are similar to the media contaminated or affected at the CERCLA site;

Whether the substances regulated by the requirement are similar to the substances found at the CERCLA site;

Whether the entities or interests affected or protected are similar to the entities or interests affected by the CERCLA site;

Whether the actions or activities regulated or directed by the requirement are similar to the remedial action contemplated at the CERCLA site;

Whether any variances, waivers, or exemptions of the requirement are available for the circumstances of the CERCLA site or CERCLA action;

Whether the type of place regulated or protected is similar to the type of place affected by the CERCLA site or CERCLA action;

Whether the type of structure or facility regulated is similar to the type of structure or facility affected by the release or contemplated by the CERCLA action;

Whether any consideration of use or potential use of affected resources in the requirement is similar to the use or potential use of the affected resource; and

Whether the purpose of the requirement in the program of its origin is served by its application at the CERCLA site.

The relevance and importance of each of these criteria will vary from site to site. If, in the judgment of the decisionmaker, enough of the important criteria are sufficiently similar, then the requirement is identified as relevant and appropriate. Obviously, the above criteria allow much more discretion to be used in determining whether a requirement is relevant and appropriate than in determining whether a requirement is applicable.

Once a requirement is found to be relevant and appropriate, it is applied as strictly as if it were applicable. However, the discretion involved in identifying relevant and appropriate requirements gives the decisionmaker great flexibility — enough to determine that only a small portion of a regulation is a relevant and appropriate requirement. Moreover, other parts of other regulations may also be found relevant and appropriate. With pliable relevant and appropriate requirements, the decisionmaker can combine various relevant and appropriate requirements to fashion a remedy that suits the site.

Circumstances Under Which Compliance with ARARs Is Waived

The 1985 revisions to the NCP provided five limited circumstances under which compliance with ARARs could be waived.⁵³ The 1986 amendments to CERCLA deleted one of those waivers, codified the remainder, and added two new ones.⁵⁴ For example, a remedial action need not comply with ARARs where the decisionmaker finds that compliance would result in a greater risk to human health than the other options, or compliance is technically impracticable from an engineering perspective, or an action using the Superfund would be so expensive as to unduly limit the availability of funds for other sites.

Waivers can only be used for ARARs, and not to waive the CERCLA requirement that remedies be protective and cost-effective. Nor can they be used to defeat or weaken the strong preference for selection of permanent remedies.

Once a waiver becomes operative, the question arises as to how many of a particular remedial action's ARARs may be waived. In most cases the answer is not many. In most cases the remedial action will not be able to waive all of its ARARs. Instead, because the remedy must still be protective and because there are so many different types of ARARs, only the specific ARARs that fulfill the waiver criteria for the selected remedy may be waived; all other ARARs must still be attained.

However, the two new waivers added by SARA, § 121(d)(4)(D) and (E),⁵⁵ may be a different matter in that they potentially allow the waiver of a number of ARARs. The § 121(d)(4)(D) waiver allows a remedial action to waive attainment of an ARAR if it employs astandard of performance that is equivalent to the standard of performance [18 ELR 10528] required under the waived ARAR. It would allow flexibility in the choice of technology, but would not allow any lesser standard. For a site that had large amounts of liquid PCBs in concentrations over 500 ppm, TSCA regulations would require that all such PCBs be incinerated. Someday, however, Superfund might instead use an innovative microbiological technology to treat the PCBs, and still achieve the same level of destruction of PCBs that incineration would achieve. This new waiver would allow the use of this innovative technology. The application of new technologies to a remedial action could, depending on the site, supplant a number of ARARs at once.

The § 121(d)(4)(E) waiver would permit a remedial action to waive an entire state standard, provided that such standard had been inconsistently applied by the state in other remedial actions. This might result in the waiving of a large body of state requirements that would otherwise have applied for such an action. Nevertheless, such a remedial action would still have to meet other ARARs.

The Labyrinth of CERCLA Compliance with RCRA ARARs: A Chronology of Mistakes

CERCLA compliance with the regulations promulgated pursuant to RCRA Subtitle C represents a special concern within the broader context of CERCLA compliance with other laws. Because RCRA's Subtitle C regulations address the ongoing treatment, storage, and disposal of hazardous waste, and because CERCLA response actions often involve treatment, storage, and disposal of hazardous waste, many RCRA requirements are likely to be applicable or relevant and appropriate to CERCLA response actions.

RCRA's Subtitle C authorities are implemented by three different regulatory regimes: treatment, storage, and disposal. Of the three, RCRA's disposal regulations⁵⁶ present by far the most complicated compliance problems for CERCLA. RCRA's disposal regulations are comprised of four basic subsets. The first subset can be described as minimum technology requirements for the design and operation of the various types of RCRA land disposal units.⁵⁷ For instance, minimum technology for a landfill requires that a certain type and number of impermeable liners and leachate collection systems be part of the landfill's design.

The second subset contains closure requirements for RCRA units that go out of operation.⁵⁸ Differing from unit to unit, closure requirements specify that each unit be decommissioned in a certain manner so as to avoid creating environmental problems due to hazardous waste releases.

The third subset includes the land disposal restrictions on certain types of waste.⁵⁹ These restrictions prohibit land disposal of certain "banned" wastes into RCRA units unless waste-specific treatment has been implemented.

The fourth subset of RCRA disposal regulations are the developing corrective action requirements. "Corrective action" refers to remedial action taken to address a hazardous substance release that has already occurred. Currently, corrective action regulations for contaminated groundwater within a unit are codified at 40 C.F.R. Part 264, subpart F. These existing corrective action authorities are largely preventive in nature and therefore different from the broader corrective action authorities added to RCRA by the Hazardous and Solid Waste Amendments (HSWA) of 1984. These new and broader corrective action authorities were added to RCRA to reach all contaminated environmental media originating from RCRA units, as well as from non-RCRA units at RCRA facilities, including releases that go beyond the facility boundary. They are codified at RCRA §§ 3004(u)-(v).⁶⁰ The implementing regulations for these new authorities are being developed, and are nearing publication in the Federal Register as a proposed rule.

Theoretically, compliance with RCRA seems workable, but deciding what parts of RCRA to comply with and when to so comply has become an arcane semantical conundrum for those who must decide how to comply with other laws at actual sites. EPA has made several major mistakes in the development of a policy for ensuring that CERCLA cleanup actions comply with RCRA. The result of these mistakes is that compliance with RCRA is only partially understood by Superfund management and staff — at least, there has never been a lasting consensus in EPA headquarters about how to construe RCRA's jurisdictional prerequisites for application of RCRA's disposal regulations as they apply to CERCLA remedial actions.

This lack of consensus has for two years delayed the desperately needed CERCLA Compliance With Other Laws Manual from being distributed to the regions. Consequently, EPA regional management and staff are even more bewildered than headquarters. In this confused state of affairs, a consistent policy of compliance with RCRA has become unworkable and elusive.

This section of the Article documents the mistakes that EPA has made regarding CERCLA compliance with RCRA which have resulted in this confused state of affairs. Additionally, this section offers some reasons as to why these mistakes were made, explains in detail the impacts of the mistakes, and proposes a congressional amendment to the RCRA definition of disposal to escape its unworkable complexities.

Mistake: Failing to Specify the Few Truly Applicable RCRA Requirements

Early in 1984, EPA entered into a settlement agreement with the EDF to "propose revisions to the NCP to require that (1) relevant quantitative health and environmental standards and criteria developed by EPA under other programs be used in determining the extent of the remedy, and (2) if such standards and criteria are substantially adjusted (e.g., for risk level or exposure factors), then the lead agency must explain the basis for this adjustment."⁶¹ Regarding the action-specific requirements of other laws, EPA only agreed to "promulgate a rule addressing the issue of whether response activities must comply with other laws."⁶²

[18 ELR 10529]

In other words, EPA agreed to comply with the quantitative, health-based, chemical-specific requirements of other laws (i.e., those laws that set limits on the amount of discharge or ambient concentration levels of chemicals in the environment). However, EPA agreed only to address, via a regulation, the issue of whether similar compliance would be appropriate for the action-specific requirements of other laws (i.e., those laws that require or prohibit specific action in the management of hazardous waste).

It was in response to the EDF settlement that EPA made its first mistake: failing to specify in the October 2, 1985, CERCLA Compliance Policy the few truly applicable RCRA requirements that existed at that time. The Compliance Policy formally enunciated the policy that the actual methods, activities, and technologies used in Superfund cleanups would comply with the action-specific directives, prohibitions, and other limitations of other environmental and public health laws (e.g., RCRA). In other words, all RCRA requirements became potential ARARs. The problem with this approach was that at that time, and in fact even now, regulations under RCRA were almost entirely preventive.⁶³ The strict regimens of RCRA are intended to control the generation, transport, and disposal of certain very specific hazardous wastes from cradle to grave in the context of an ongoing waste management operation so as to prevent the need for corrective action. CERCLA's mandate, however, is to provide expeditious corrective action to clean up wastes that have already been inadequately disposed of or mismanaged in some way. The difference between many of RCRA's existing regulations and CERCLA's function is that between prevention and cure.

EPA's error was rooted in administrative impatience. RCRA § 3004(u)-(v) provides for CERCLA-like corrective remedial action once improper waste management has caused a release to occur. Nevertheless, during the development and drafting of the 1985 Compliance Policy, the RCRA program was not yet even developing corrective action requirements for proposal.⁶⁴ Consequently, there were no corrective action requirements addressing remediation of contaminated soil and debris with which CERCLA could comply. EPA should have stated that for the most part there would be no need to comply with many of RCRA's disposal regulations until implementing regulations for corrective action had been promulgated.⁶⁵ EPA should have specified that, pending promulgation of corrective action regulations, the only RCRA regulations that CERCLA would need to comply with were the following:

1) minimum technology requirements for RCRA land disposal units at sites where the CERCLA response action is constructing a new RCRA-like unit on uncontaminated land to contain hazardous substances excavated as a part of that remedial action;

2) land disposal restrictions at sites where the CERCLA response action has excavated and is placing banned RCRA wastes into RCRA-like land disposal units; and

3) closure requirements at sites where the CERCLA response action necessitates the actual decommissioning of a largely intact RCRA land disposal unit (i.e., a discrete unit without widespread soil and groundwater contamination) because the RCRA facility has been placed on the National Priorities List (NPL).

The guiding philosophy of CERCLA compliance with RCRA should be: mandatory compliance is appropriate only where a CERCLA remedial action includes RCRA-like preventive activities (such as listed above), or where a RCRA regulation is designed to address CERCLA-like cleanup (such as RCRA corrective action regulations).

Mistake: The Erroneous Analogy Between RCRA Unit Closure and CERCLA Remedial Action

Because EPA had announced in the proposed Compliance Policy (which accompanied the proposed 1985 NCP revisions on February 12, 1985), its intention to comply with potentially all of RCRA, Superfund's policy analysts and attorneys were suddenly faced with a complicated intellectual problem. They did not know how to determine when each of the various RCRA regulations were applicable, as opposed to when they were relevant to CERCLA remedial action. The proposal of this new policy created a need for some examples to illustrate how CERCLA compliance with RCRA would work. Therefore, these policy analysts and attorneys decided to draw analogies between CERCLA cleanup activities and various activities regulated under RCRA. The theory was that if analogies could be drawn between CERCLA activities and RCRA regulations, those analogous regulations would either be applicable or relevant, depending on the circumstances at a site.⁶⁶

* The Mismatch Between RCRA Closure Regulations and CERCLA Remedial Action. The analogy that was drawn to exemplify how CERCLA would comply with RCRA's closure regulations was especially problematic. EPA reasoned that because the RCRA closure requirements address the management of contaminated soil, all CERCLA cleanup of contaminated soil should be consistent with the technical requirements established by the RCRA closure regulations — at least until corrective action [18 ELR 10530] standards could be developed. However, with regard to hazardous waste disposal, this is a rudimentary mistake because there is a basic difference between the decommissioning of a unit to achieve a proper disposal of hazardous wastes and the cleanup and redisposal of improperly disposed (i.e., released) hazardous substances. The former is prevention; the latter is cure.

Recall that RCRA is the statute that regulates the on-going management of hazardous waste from cradle to grave. RCRA closure was designed to prevent environmental contamination prospectively, based on the three following assumptions:

1) that there exists an owner or operator who may be held responsible or liable for his actions;

2) that there exists a discrete unit or structure, or some other form of technological barrier to hazardous waste releases and migration; and

3) that there is some form of early leak detection and therefore limited contamination.⁶⁷

These assumptions do not hold true for CERCLA remedial actions at the many sites where past disposal practices were completely unregulated.

A plain reading of the RCRA closure requirements does not reveal why they should be considered applicable or even relevant and appropriate to corrective actions taken on widespread contamination problems. In fact, a closer examination reveals that not only is there no obvious correspondence between closure and corrective action, but there is actually an uncomfortable mismatch between the two.

The three assumptions, mentioned above, upon which the RCRA closure regulations are based do not apply to Superfund sites because most Superfund sites predate RCRA regulations and therefore do not have owners or operators, discrete units or barriers to waste migration, or devices for containing or detecting waste migration. Because the problem is one that predates RCRA regulations, most Superfund sites have a type and magnitude of soil and water contamination that is vastly different than the situations that the RCRA closure regulations are intended to address.

RCRA closure requirements allow owners and operators intending to close or cease the operations of their hazardous waste management units only two options: disposal closure⁶⁸ (also called "landfill closure" or "closure with waste in place") and clean closure⁶⁹ (also called "storage closure" or "closure by removal"). If the owner/operator chooses the clean closure option, he must close his unit by removing practically all hazardous waste, waste residues, and contaminated soils, material, and debris — basically rendering the site as clean as it was before the unit operated there. Enough contaminated soil must be removed such that contamination is reduced to extremely low levels — so that the public and the environment will be safe from all exposure pathways including dermal, inhalation, and direct soil and water ingestion. This strict standard has led some at EPA to refer to it as the "edible soil/drinkable leachate standard." Such a strict standard is necessary because after the owner/operator has verified that he has met all clean closure requirements for 180 days, he may leave the RCRA regulatory system and he will not be subject to any further requirements.

The other closure option, disposal closure, allows an owner/operator to decommission his hazardous waste unit by closing it as a landfill (i.e., by "capping" the unit) with the wastes or contaminated materials in place.⁷⁰ Capping involves sealing off the exposed top of the unit with an impermeable synthetic cover designed and constructed to minimize migration of liquids through the closed landfill for an indefinite period of time. The owner/operator must grade the unit and surrounding area to promote proper drainage and to prevent run-on and run-off from damaging the cover or migrating through the closed landfill. In addition, the owner/operator must establish a vegetative cover and provide 30 years of post-closure care and maintenance, including groundwater monitoring, to ensure that hazardous substances from the unit do not migrate into groundwater in excess of RCRA subpart F groundwater protection standards. Last, the owner/operator must place and maintain surveyed benchmarks to locate waste cells, restrict post-closure use of the property to prevent damage to the cover, and place notice and restrictions in the deed of the property on which the site is located.

The difference between the two closure options is that clean closure is designed to take the unit completely out of existence — thus requiring no further obligations on the part of the owner/operator. The liability and responsibilities of the owner/operator who chooses disposal closure continue as long as the unit is in existence.

The main reason why CERCLA-mandated remedial action should not be made to conform to RCRA closure regulations is that the problem of cleaning up large-scale contamination is an entirely different matter from the problem of how hazardous wastes should be properly managed in the context of an ongoing business operation. In particular, the use of RCRA closure standards as ARARs for large-scale remediation of soil contamination confuses prevention with cure. The two either-or closure options (remove all contaminated soil or seal it off in place) are designed, among other things, to be extremely stringent and therefore to provide an incentive to owner/operators to operate their facilities correctly so that hazardous waste units will be largely intact at the end of their operating life. For example, the disposal closure or storage closure options are not oppressive to owner/operators who are closing units that do not have massive migration of contamination into surrounding soil and groundwater. In addition, the clean closure option makes sense as an infallible way to ensure that the unit will not cause a problem once the owner/operator has completed closure and left the RCRA regulatory system. Recall that after clean closure is complete [18 ELR 10531] there is no longer an EPA presence at the unit or an EPA authority over the owner/operator. The Agency has never taken the position that strict compliance with the clean closure option's removal to the drinkable leachate/edible soil standard is necessary to protect human health and the environment in all cases. Rather, because clean closure involves the total release of the owner/operator from further responsibility the Agency must err on the side of conservatism (i.e., the drinkable leachate/edible soil standard) to guarantee that the levels of contamination remaining behind will be so minimal that they will not be sufficient to cause harm for an indefinite period of time.

In sharp contrast, CERCLA remedial actions are not bound by the same lack of authority as RCRA is when owner/operators walk away from a RCRA site; CERCLA remedial actions must remain at the site, sometimes for an indefinite period of time, to ensure that the remedial action is working properly.⁷¹ Nor are CERCLA remedial actions meant to create an incentive for proper management of hazardous waste units (after all, some CERCLA sites may not even have an identifiable owner/operator). Therefore, forcing compliance with the standards required by either of the two closure options creates a number of unnecessary restraints upon CERCLA cleanups.

The result of superimposing RCRA closure regulations on Superfund remedial actions that involve widespread soil and groundwater contamination is that compliance with the closure regulations tends to make such CERCLA cleanups technically impracticable and exorbitantly expensive. The fact that RCRA closure only allows two options for addressing contaminated soil greatly reduces Superfund's flexibility to properly clean up large-scale contamination. For instance, if the selected remedy for a large area of widely dispersed soil contamination were to involve excavation of the contaminated areas andconsolidation of those contaminated soils into one central containment, and if RCRA clean closure regulations were found to be applicable to the excavated waste, compliance with RCRA would require that all contaminated soils be removed to the drinkable leachate level. This means that the amount of soil to be excavated, moved, treated, and contained would be unnecessarily huge because the RCRA clean closure regulations require a cleanup that often goes well beyond what is necessary to protect the health of the surrounding population.

For many Superfund remedial actions, only the most highly concentrated areas of contamination need be excavated to protect human health and the environment and be cost-effective. Superfund may opt to use computerized environmental fate and transport modeling to calculate levels of contamination that can be safely left behind. However, RCRA closure regulations require that any areas where contamination above the "edible soil/drinkable leachate standard" is left behind must be capped. This requirement may be physically impracticable and extremely costly to implement if the areas to be capped are very large. This requirement may often not even be necessary to protect public health and the environment; a site-specific risk assessment may demonstrate that it is safe to leave behind a level of contamination above the "edible soil/drinkable leachate" level and not cap it, but instead conduct RCRA disposal closure monitoring to ensure the remedy is working. Nevertheless, RCRA closure regulations do not recognize such a third, or "hybrid," cleanup option.⁷² The Draconian result of finding RCRA's closure regulations to be applicable is that Superfund must excavate everything to the drinkable leachate standard, or, if it performs only limited excavation, it must cap the entire area of remaining contamination, regardless of whether it poses a threat to human health and the environment. Obviously, this one mismatch between prospective RCRA regulations and CERCLA remedial action has the potential to impose great costs on the limited Hazardous Response Trust Fund.

The mismatch between RCRA closure and CERCLA remedial action is so great that EPA should not have drawn the analogy. It would have been far wiser to have stated that RCRA's closure regulations are not applicable or relevant to CERCLA remedial actions — except where CERCLA is conducting a remedial action to close an actual RCRA unit. EPA could have said that the yet-to-be developed corrective action regulations were the true potential ARARs for remedial actions, and that compliance with RCRA would not be appropriate until those regulations were developed.⁷³

The further result of this misapplication of RCRA closure to CERCLA is the havoc it has wreaked upon the Superfund and RCRA programs, and the time and money that have been wasted trying to formulate a consistent policy to implement compliance with RCRA's closure regulations. The mismatch between RCRA's preventive closure regulations and CERCLA's remedial activities is so great that it is impossible to determine how to apply one to the other in a way that is consistent, coherent, and does not disrupt the functioning of both programs. Since CERCLA compliance with RCRA was first proposed, it has been the subject of numerous long, convoluted, and acrimonious meetings at EPA headquarters. The issues created by CERCLA compliance with RCRA closure have gone around and around within EPA for so long, and with so little resolution, that the amount of person-hours wasted on formulating a consistent RCRA/CERCLA policy is in itself an indictment of EPA's judgment on the matter. Consequently, there is still no agency-wide consensus about the applicability of RCRA's closure regulations to the [18 ELR 10532] cleanup of inadequately disposed hazardous waste. Depending on how this jurisdiction is characterized, RCRA's either-or closure options will, as a general matter, be strictly applicable to CERCLA response actions involving excavation of contaminated soil.

* Reasoning Behind the Mistake. The RCRA closure/CERCLA remedial action on contaminated soil analogy was adopted after almost a year of debate within EPA — despite the fact that many in the Superfund program staff were against the idea of making CERCLA cleanups conform to RCRA closure regulations (except where such cleanups would be taken at NPL sites that closely resembled or actually were RCRA facilities).

The reasoning offered to support CERCLA compliance with RCRA closure was that if industry is required to conduct treatment, storage, and disposal of hazardous waste according to the strict regimens of RCRA closure, then the government — when it is conducting treatment, storage, and redisposal of old, inadequately disposed hazardous wastes — should not be allowed to bypass those same regimens. Those at EPA who supported the decision argued that it was not fair to require the private sector to meet a strict standard, while allowing the public sector to avoid those same standards when both sectors were dealing with hazardous substances.⁷⁴ This argument sounds attractive, but only if one ignores the inherent and vast differences between the prevention of hazardous substance releases and the cure.

Mistake: The Erroneous Analogy Between Other RCRA Disposal Regulations and CERCLA Remedial Action

In addition to the closure regulations, there are a number of other RCRA/CERCLA mismatches, as well. For instance, the RCRA part 264 subpart F procedures for monitoring and for corrective action upon contaminated groundwater⁷⁵ are a mismatch when superimposed upon Superfund sites with areawide groundwater contamination from unknown or multiple sources. Like the RCRA closure regulations, the subpart F groundwater monitoring and corrective action procedures are designed for discrete hazardous waste management units operating under certain conditions that are not true for many CERCLA sites.

The subpart F requirements hold the owner/operators strictly responsible for any hazardous substances that migrate beyond the unit's boundaries — requiring that they clean up only the contaminated groundwater for which they are responsible to such an extent that contamination is reduced to either background levels, MCLs, or, in exceptional circumstances, alternative concentration limits (ACLs) that may be specially granted by the EPA regional administrator.

This is because the subpart F procedures for corrective action upon contaminated groundwater at discrete units are implemented on a unit-by-unit basis. If units are located in close proximity to each other, corrective action can be undertaken on a cluster of them, but only if the cluster constitutes a discrete waste management area. Owner/operators are responsible only for their portion of the total contamination, which is assumed to be distinguishable from other contamination from other units.

Yet CERCLA cleanups often confront area wide groundwater contamination from multiple — and often unknown — sources. The subpart F requirement that each specific unit or facility clean up only its increment of contamination is ill-suited to widespread contamination. Even when multiple sources are identified, hazardous constituents from different units are mixed in an areawide groundwater problem so that it is impossible to tell which unit is responsible for a specific amount of contaminated groundwater.

Another RCRA/CERCLA mismatch is the superimposition of land disposal restrictions⁷⁶ upon Superfund cleanups. These restrictions prohibit the land disposal of certain identifiable categories of unreleased "banned waste" unless such waste is first treated with the best demonstrated available technology (BDAT) identified by EPA for that particular type of waste. These treatment regimens are difficult to apply to contamination at Superfund sites because the wastes usually encountered at CERCLA sites are a mixture of different types of banned wastes and other nonbanned hazardous substances and debris dispersed throughout various environmental media. Because each of the banned wastes at a CERCLA site may have a different BDAT treatment, but is nonetheless mixed together with other banned wastes, it is difficult to decipher the appropriate BDATs for all of the banned wastes in CERCLA mixtures by using the land disposal regulations. In addition, in many cases it may be difficult to achieve BDAT for banned waste that is mixed with soil and debris because the soil and debris may interfere with treatment of the hazardous wastes.⁷⁷

Even more important are the unnecessary delays and obstructions presented by having to comply with land disposal restrictions in carrying out the remedial action. During remediation, it is often necessary to place contaminated soil and debris temporarily on the land beside an area of contamination that is being excavated. If the waste being placed in such a temporary unit contained banned wastes, BDAT treatment would apply. However, requiring BDAT treatment for the temporary placement of wastes would make it impossible to store wastes on the ground while they awaited treatment, because placement on the ground could not occur before treatment. Wastes would have to be left in place or stored in tanks and containers. In some instances this could cause delay, increase costs, and add complexity to the remedy without adding substantial protection of human health or the environment.

Furthermore, a typical remedial action consists of treatment of the most highly contaminated soil at an off-site [18 ELR 10533] incinerator, together with on-site consolidation and containment of remaining soil contaminated with hazardous constituents in low concentrations. Forcing compliance with land disposal restrictions resulting in incineration or other treatment of such low-concentration contaminated soil might yield few, if any, benefits, and it might in some cases delay cleanup and increase risk resulting from the additional transportation and treatment of more wastes. (Large quantities of soil have been known to clog, and in some cases destroy, incinerators.) However, in moving the soils for consolidation into some on-site containment unit, application of the land disposal restrictions would nonetheless require incineration or other treatment of huge quantities of soil and thus preempt the most straightforward, implementable, and in some cases, most effective remedy — without providing substantial environmental benefits.

Similarly, the application of RCRA minimum technology requirements for the design and operation of land disposal units⁷⁸ to certain intermediate remedial activities would add great costs and delays to cleanups, often with no attendant environmental benefit. This is especially true regarding the creation of temporary units of the staging of waste during excavation or other remediation. It simply does not make sense to require these one-to-three month temporary units to be built to standards that are intended for permanent units — units that are intended to be in service for decades.

Yet, the problem was that once the analogy between RCRA closure and CERCLA remedial action had been drawn, the Agency had begun to fall down the slippery slope. Maintaining the reasoning behind the RCRA closure/CERCLA remedial action analogy, the Agency could not now justify why the other RCRA disposal requirements should not also be analogous, and thus applicable to CERCLA cleanups. Therefore, the pressure to escape all these preventive requirements had grown to overwhelming proportions. EPA began casting about for some way to characterize the jurisdictional prerequisites for the RCRA Subtitle C disposal regulations in some way that would give CERCLA the flexibility to avoid the horrendous mismatches.

Mistake: Avoidingthe Applicability of RCRA Disposal Regulations in a Way that Diminished RCRA's Jurisdiction

Because of the mismatches outlined above, EPA realized that RCRA's disposal regulations should not generally be applicable to CERCLA sites. Furthermore, commenters responded to EPA's February 12, 1985, proposed NCP revisions (containing the requirement to comply with other laws) with torrents of criticism regarding the numerous mismatches between RCRA regulations and CERCLA remedial actions.

In an effort to avoid the mismatch between RCRA disposal and CERCLA remediation, EPA devised an "objective test" for determining the applicability of all RCRA Subtitle C regulations to CERCLA cleanups, and then deliberately characterized one of the RCRA jurisdictional prerequisites — the post-1980 time period in which the Subtitle C regulations are effective — in such a way as to ensure that the RCRA disposal regulations would fail the applicability test for most sites. Once the disposal requirements had failed the test for applicability, EPA could designate certain of RCRA's disposal requirements as relevant and appropriate, and mix relevant and appropriate disposal requirements to come up with remedial options that "complied" with RCRA, but made sense for Superfund. This is what EPA did in the 1985 NCP preamble discussion of the Crystal Chemical site.⁷⁹

In response to the criticisms leveled against the Agency's proposed compliance with RCRA, Superfund policy analysts drafted a lengthy preamble that articulated a flexible approach to compliance with RCRA. The preamble's explanation of compliance with RCRA became the subject of a three-month series of contentious, almost daily meetings between the various EPA offices that were participating in promulgating the 1985 NCP revisions. By the end of the summer of 1985, all parties had reached a consensus regarding the test for RCRA applicability to CERCLA, and could show as an example the proposed CERCLA abatement action at the Crystal Chemical Site in Texas, where this test had led to a flexible approach to compliance with RCRA.

The test for applicability involved the same comparison that is currently used to determine applicability: comparison of the jurisdictional prerequisites of RCRA regulations to the circumstances at a site. If there is a one-to-one correspondence, then the regulations in question are applicable and Superfund sites must strictly comply with those regulations. If there is not a one-to-one correspondence, best professional judgment is used to break a regulation into smaller requirements to determine if there is sufficient similarity between the requirements of a regulation and the circumstances at the site so that use of such requirements makes good environmental sense (i.e., the requirement is relevant and appropriate). The difference between applicable requirements and relevant and appropriate requirements is analogous to the difference between being forced to eat every item of food in a blue plate special, and being forced to eat every item of food that one has specially chosen from a buffet. Relevant and appropriate requirements represent compliance with other laws, buffet style.

The characterization of the jurisdictional prerequisites for RCRA's disposal regulations that was finally advanced in the preamble to the 1985 NCP revisions stated that RCRA would generally not be applicable to Superfund cleanups unless the sites represented actual RCRA facilities:

These [RCRA] requirements … would not be applied unless "applicable" (i.e., a RCRA facility was causing the ground water contamination)…. However, where the contamination emanates, in whole or in part, from a facility subject to RCRA regulations, EPA will apply those regulations.⁸⁰

The reasoning behind this was that most Superfund sites address contamination that was originally disposed of before the November 19, 1980, effective date of the RCRA regulations. This is how EPA characterized the jurisdictional prerequisite time frame to cause most sites to fail the applicability test. Therefore, most CERCLA sites fall [18 ELR 10534] outside of the jurisdictional time frame prerequisite for RCRA applicability. The preamble also stated:

The reason the concept of "relevant requirements" was added to the concept of "applicable requirements" was that it was anticipated that jurisdictional limitations of requirements developed under other statutes might prevent otherwise useful requirements from being named as "applicable." … For example, RCRA requirements could be relevant even with respect to hazardous waste disposed of prior to November 19, 1980, the effective date of EPA's RCRA Subtitle C regulations, 40 CFR parts 260-265. The date on which the waste was disposed or managed is not germane to the determination of what response action will adequately protect public health and welfare and the environment.⁸¹

EPA stated elsewhere how critical the time of original disposal of waste was for the determination of applicability. In its October 2, 1985, Memorandum on CERCLA Compliance With Other Laws, EPA said:

… RCRA Subtitle C regulations, while not applicable to hazardous wastes disposed of prior to the November 19, 1980, effective date of those regulations, could be relevant and appropriate regardless of when those wastes were disposed of or managed.⁸²

The example that EPA used in the preamble to demonstrate flexibility in compliance with RCRA came from a Negotiation Decision Document (NDD) that outlined EPA's position in negotiations over the Crystal Chemical site in Texas. EPa determined that at Crystal, none of the RCRA Subtitle C part 264 closure regulations was applicable because the date of original disposal predated the November 19, 1980, effective date of those regulations. Furthermore, EPA determined that only part of the subpart K clean closure requirements and part of the subpart K disposal closure requirements were relevant and appropriate. The Agency then combined the two (previously mutually exclusive) requirements to create a hybrid closure option that does not currently exist under RCRA.⁸³

In the Crystal Chemical example, part of the storage closure, or clean closure, requirements were found relevant and appropriate; the Agency therefore proposed in the NDD to excavate arsenic-contaminated soil so that contamination would be reduced to a safe 100-ppm level at which there would be no further need for action to protect public health and the environment. If the clean closure requirement had been found applicable, then the Crystal Chemical NDD would have had to propose an excavation that would have reduced arsenic contamination to background levels).⁸⁴ EPA then proposed to combine relevant and appropriate requirements of the disposal closure regulation (i.e., post-closure monitoring) to verify that the arsenic left behind would not migrate to groundwater in unacceptable levels and that other exposure pathways would be protected as well.

In short, EPA used the original date of disposal at a site as the basis for failing the Crystal Chemical site on the objective test for RCRA applicability so that the RCRA Subtitle C regulations would be relevant and appropriate. Having done this, EPA was free to use its best professional judgment in choosing from a buffet of relevant and appropriate requirements to tailor a remedy to the problems of that specific site. And for a time, the Agency thought that the problems of the RCRA/CERCLA mismatch were solved. Unfortunately, what had appeared beneficial for the Superfund program had the potential to disrupt the RCRA program.

On June 25, 1986, Superfund management met with representatives of management from various other EPA offices to discuss the Superfund program's concern that the newly proposed revisions to the clean closure rule (at that time, the revisions for changing the background standard to an "edible soil/drinkable leachate standard" had recently been proposed) were so much more stringent and inflexible than the existing standard that they would seriously hamper Superfund's ability to excavate contaminated soil.

[18 ELR 10535]

At this meeting it became clear that some people in EPA no longer accepted the Superfund position that RCRA could not be applicable to waste originally disposed before November 19, 1980. They argued that if this view were accepted, RCRA would not be able to claim jurisdiction over private entities that moved or disturbed waste that was disposed before the effective date of RCRA's Subtitle C regulations.⁸⁵ This news angered the Superfund policy analysts who had drafted and forged a consensus on the statements that were made in the 1985 NCP preamble about RCRA applicability. Superfund staff objected, stating that the hard-won consensus on RCRA/CERCLA reflected in the preamble was being ignored. Another two-month series of almost weekly "RCRA applicability meetings" ensured. Opponents of the Superfund position on RCRA applicability argued that the statements made in the preamble about RCRA applicability were so vague that there was never a meeting of the minds. Superfund staff prevailed upon Superfund management to elevate the controversy immediately.

Mistake: Using Superfund to Solve RCRA's Jurisdictional Problem

Superfund management raised the issue to the director of the Superfund program, Henry Longest, Longest asked for an opinion from General Counsel, Francis S. Blake. Blake said only that using the original date of disposal to avoid RCRA applicability was not the best legal reading of RCRA's jurisdiction or of CERCLA's responsibility to comply with RCRA.

Nevertheless, Superfund management decided to press the issue further by raising it with Dr. Winston Porter, the new Assistant Administrator of the Office of Solid Waste and Emergency Response (OSWER).⁸⁶ The issue was presented to Dr. Porter in early November 1986. Representatives from many EPA offices attended the briefing for Dr. Porter.

Opponents of the Superfund position presented the issue by describing the various different approaches to viewing RCRA applicability, including the pros and the cons of each view. Included in this presentation was the approach outlined in the preamble to the 1985 NCP, although it was not presented as the "preamble approach." No one informed Dr Porter that EPA had already published an approach in the Federal Register.

This was because the meeting was comprised of, for the most part, a different set of actors than when the 1985 NCP revisions were being drafted. Therefore, they were too uncertain of the history of the issue — many not having participated in the drafting of the 1985 NCP preamble — to dispute the issue of the consensus that was reached and what the preamble said.

Therefore, the meeting proceeded without anyone's notifying Dr. Porter that some thought the Agency had already taken a position on this issue. Shortly after the presentation, Dr. Porter announced that he preferred the strict RCRA applicability approach and wanted his staff to brief him further on RCRA and its implications for CERCLA. With that, the meeting was adjourned.

The new view of applicability that prevailed for several months after that meeting held that whenever RCRA hazardous wastes are disturbed or physically altered, they are considered to have been either treated, stored, or disposed after the 1980 effective date of the Subtitle C regulations. Under this view, because RCRA is strictly applicable to the treatment, storage, or disposal of RCRA hazardous wastes after November 19, 1980, whenever so much as a shovel of RCRA hazardous waste is turned at a CERCLA site, some portion of RCRA will be applicable.

Therefore, with the 1985 NCP revisions still in effect and notwithstanding the preamble's statements that RCRA would only rarely be applicable (as when RCRA facilities are on the NPL), the Agency moved in the direction of adopting a radically different view of compliance with RCRA in which large portions of the RCRA disposal regulations would almost always be applicable. The new approach was called the theory of "strict applicability."

The purpose behind the strict applicability theory of RCRA/CERCLA was to fix a jurisdictional problem that had been overlooked when Superfund personnel were drafting the final 1985 NCP revisions and preamble. At that time, it was not realized that to allow cleanups at Superfund sites with pre-1980 waste to avoid compliance with RCRA would set a bad precedent for the Agency's authority to regulate the actions of private parties who disturb their pre-1980 hazardous wastes. Perhaps this jurisdictional problem could have been solved by crafting corrective action regulatory language to state that the jurisdiction of RCRA's developing corrective action regulations is broad enough to reach such private parties when they disturb pre-1980 wastes. But Superfund was used as the vehicle instead.

The Strict Theory of RCRA Applicability

In support of this strict theory of RCRA/CERCLA, EPA distilled the following basic RCRA Subtitle C jurisdictional prerequisites that, if fulfilled, would generally cause some portion of RCRA's Subtitle C regulations to be applicable:

(1) the site or facility contains RCRA characteristic or listed hazardous waste; and

(2)(a) the waste was treated, stored, or disposed after the November 19, 1980, effective date of the Subtitle C regulations, or

(b) the remedial activity at the site or facility constitutes current treatment, storage, or disposal as defined by RCRA.

Given these basic jurisdictional prerequisites, RCRA would generally be applicable to most CERCLA sites that contain RCRA hazardous waste because the remedial actions themselves would almost always disturb waste and thus constitute treatment, storage, or disposal after the effective date of RCRA.

In other words, what EPA did was to retain the "objective test" — comparing the conditions of the CERCLA site to RCRA's jurisdictional prerequisites. But in order to preserve the RCRA program's flexibility, EPA adopted the assumption that any disturbance of pre-1980 wastes constitutes treatment, storage, or disposal subject to RCRA regulation. Therefore, redisposal of wastes in the context of a CERCLA remedial action triggers RCRA's applicability. Without [18 ELR 10536] this assumption, many remedial actions would not fulfill the definition of RCRA disposal. While the assumption may have been good for the RCRA program, it forced the CERCLA program "back to the drawing board" to grapple with the problem of how to apply prospective, preventive standards to retrospective, curative activities.

* RCRA Hazardous Waste. The first step that EPA took was to establish a policy for determining whether Superfund sites contained RCRA hazardous wastes. According to the RCRA Subtitle C regulations at 40 C.F.R. part 261, there are two kinds of RCRA hazardous waste: those that are actually listed at 40 C.F.R. part 261, subpart D, and those that are not listed but exhibit the characteristics set forth in 40 C.F.R. part 261, subpart C.

One problem with using the above twofold test is that most CERCLA sites contain very heterogeneous waste mixtures. These mixtures may contain some of the same hazardous constituents as RCRA hazardous waste, but CERCLA waste is seldom easy to identify as being in one of the two RCRA waste categories.

At many Superfund sites, no information exists on the source of the wastes, nor are references available citing the date of disposal. Consequently, the Superfund program encourages the use of available site information, manifests, storage records, and vouchers to ascertain the nature of the wastes confronted at a site. But when this documentation is not available, the guidance directs the decisionmaker to assume that the wastes are not RCRA-listed hazardous wastes.

If there is no RCRA hazardous waste at a site, RCRA cannot be applicable. But where an assumption has been made that the wastes are not RCRA-listed wastes, drafts of the Superfund Compliance With Other Laws Manual allow that RCRA requirements may still be found to be relevant and appropriate if the CERCLA action involves treatment, storage, or disposal, and the wastes are similar or chemically identical to RCRA-listed wastes.

The Superfund program encourages a different approach for identifying RCRA characteristic hazardous wastes at CERCLA sites. The guidance directs that best professional judgment be used on a site-by-site basis to determine if testing for the RCRA hazardous characteristics of ignitability, corrosivity, reactivity, or extraction procedure toxicity is necessary. Citing the RCRA regulations at 40 C.F.R. § 262.11(c), drafts of the Compliance With Other Laws Manual have stated that testing for RCRA characteristic hazardous waste is required unless it can be determined, by "applying knowledge of the hazard characteristic in light of the materials or process used," that the waste does not have hazardous characteristics. In such a case, RCRA requirements would not be applicable or relevant and appropriate unless the CERCLA wastes also contained a RCRA-listed waste, and the CERCLA action constituted treatment, storage, and disposal of such waste.

* Treatment, Storage, or Disposal. The next step EPA took was to determine what CERCLA remedial actions constitute treatment, storage, or disposal. This is where EPA ran into more problems.

To determine if treatment has occurred, the question is whether the CERCLA remedial action disturbs RCRA hazardous waste by using "any method, technique, or process, including neutralization, designed to change the physical, chemical, or biological character or composition of any [RCRA] hazardous waste so as to neutralize such waste, or so as to recover energy or material resources from the waste, or so as to render such waste nonhazardous, or less hazardous; safer to transport, store, dispose of; or amenable for recovery, amenable for storage, or reduced in volume."⁸⁷ If the answer is yes, then treatment has occurred.

Similarly, to determine if storage has occurred, the question is whether a CERCLA remedial action disturbs RCRA hazardous waste through means that involve the "holding of [RCRA] hazardous waste for a temporary period, at the end of which the hazardous waste is treated, disposed of, or stored elsewhere."⁸⁸

On the other hand, determining when disposal takes place is an ongoing debate at EPA. RCRA § 1004(3) defines disposal to include placement of hazardous waste on land or into water.⁸⁹ The strict view is that disposal occurs when RCRA hazardous waste is moved or disturbed, RCRA interprets "placement" in such a way as to exclude movement of waste entirely within a unit; however, the strict theory views disposal as including movement of waste completely within the confines of a single unit. Therefore, the following basic CERCLA actions would constitute disposal:

removing RCRA hazardous waste from within an area of contamination and consolidating it outside of the contaminated area, including relocating spilled RCRA hazardous wastes;

picking up RCRA hazardous waste within an area of contamination, treating it in that area, and replacing the RCRA hazardous waste to the contaminated area from which it originated; and

moving or consolidating RCRA hazardous waste within the same area of contamination.

According to the strict theory, only the covering and sealing-off of pre-1980 RCRA hazardous waste, called "capping with waste in place," would not be considered disposal under RCRA because it does not disturb the unregulated waste. Depending on their complexity and circumstances, CERCLA remedial actions that constitute disposal may have to comply with all or some of the RCRA disposal requirements, including: land disposal restrictions, minimum techology requirements, subpart F groundwater and § 3004(u) and (v) corrective action requirements, and closure requirements.⁹⁰

Land disposal restrictions are triggered whenever a RCRA hazardous waste that is banned by HSWA from land disposal is "placed" upon land.⁹¹ But the strict theory of applicability distinguished between placement and disposal. Therefore, during a remedial action, if a banned waste is removed from the area of contamination and placed on other land, or is temporarily removed from the [18 ELR 10537] area of contamination and then replaced in its original location, the land disposal restrictions would apply. The land disposal regulations would require that such waste be treated to BDAT levels before the waste can be placed or replaced upon land. Under the strict theory, however, if banned waste is merely moved or graded entirely within an area of contamination, then placement has not occurred. This is because, although disposal has occurred (according to the strict theory), placement has not occurred.⁹² In the absence of placement, land disposal restrictions would not be applicable.

The strict theory of RCRA applicability would not dramatically increase CERCLA compliance with the minimum technology standards because these standards are triggered not only by disposal, but by disposal plus construction of new land disposal units, or construction of replacements, expansions, or lateral extensions of existing land disposal units. Accordingly, if a CERCLA remedial action involves disposal and the construction of a new landfill or surface impoundment for containment of RCRA hazardous waste, or if the remedial action involves disposal and the replacement, expansion, or lateral extension of an existing landfill or surface impoundment for RCRA hazardous waste, then the minimum technology standards will be applicable to the remedial action. Double liners and double leachate collection and leachate return systems will be required as part of the design. The significance of the strict theory of applicability is that even if waste is consolidated entirely within a unit (or area of contamination), construction of anything resembling a landfill or impoundment within that unit to receive the consolidated waste will trigger the applicability of the design and operating requirements.

The strict theory of RCRA applicability would not change how CERCLA must comply with RCRA corrective action requirements because they are not triggered by the mere activity of disposal of hazardous waste.⁹³ Instead, they are triggered by a release of RCRA hazardous wastes.

The strict theory of RCRA applicability would have an extremely large effect on how often and to what extent CERCLA remedial actions would have to comply with RCRA closure regulations. Basically, CERCLA remedial actions that excavate, move, or disturb soil containing RCRA hazardous waste would trigger the clean closure requirement that contamination be reduced to drinkable leachate/edible soil levels. For example, if a remedial action involves the excavation of soil containing RCRA hazardous wastes at a site, it would have to excavate to such an extent that it would completely remove or decontaminate any RCRA hazardous wastes, constituents, and residues (including those in groundwater).

According to the strict theory, after any excavation of RCRA or similar hazardous waste, if some low concentration (above "edible soil/drinkable leachate" levels) of the waste is left in place by remedial action, the disposal closure option would be applicable. Accordingly, the remedial action would have to stabilize the waste, cap it, and provide post-closure maintenance, monitoring, and notice of the remedial action in the deed to the property. Disposal closure requirements would also be applicable to remedial actions in which RCRA hazardous waste is moved or consolidated entirely within an area of contamination and left there for ultimate disposal.

However, if RCRA hazardous waste disposed of at the site before November 19, 1980, were simply left in place, covered (or capped), and not disturbed as a part of a remedial action, then the closure requirements would not be applicable. However, portions of the disposal closure requirements might still be relevant and appropriate and might thereby require that the waste be appropriately capped and provided with appropriate post-closure maintenance, monitoring, and notice — as needed for the particular site.

Like the earlier analogy approach, the strict theory of RCRA applicability has the potential to create enormous closure problems for the Superfund program — at least until the RCRA hybrid closure and corrective action regulations are promulgated. Compliance with RCRA according to the strict theory would make cleanups more time-consuming and dramatically wasteful in terms of expense.

* Effects on the RCRA Program. The strict approach to compliance with RCRA would have negative repercussions for the RCRA program as well. The most detrimental consequence is that it would create a tremendous disincentive for the regulated community to undertake voluntary corrective action or utilize methods to improve hazardous waste containment. Why should they? If an owner/operator's facility or unit was closed before November 19, 1980, then any waste within that facility is not regulated by RCRA, and the owner/operator is not under any RCRA obligation with respect to that particular waste. As long as the owner/operator leaves the waste alone, he does not have to do anything.⁹⁴ Similarly, if he caps the waste in place without excavating, moving, or otherwise disturbing the waste,⁹⁵ then he is not under any obligations under RCRA. However, if the owner/operator should decide to take some preventive measures to improve containment of the waste, or if he should decide to take some corrective action measures, the strict theory provides that the minute he disturbs the waste he becomes a regulated generator under RCRA. He is then obligated either to dig it all up or cap it all and provide post-closure care, monitoring, and notice in the deed. The enormous cost difference between merely installing some kind of cap over undisturbed waste and complying with closure requirements where waste has been disturbed is a large disincentive [18 ELR 10538] to voluntary or private efforts to prevent or correct hazardous waste releases.

Mistake: Directly and Indirectly Disturbed Waste Distinguished

The first internal draft preamble of the proposed NCP in March 1987 contained a discussion of the strict theory of applicability — with detailed examples. Representatives from other federal agencies, states, the EPA regions, and other EPA offices reacted negatively to the proposal.

The reaction was so swift and so unanimously negative that Superfund personnel began to consider a relaxation of the strict theory. Some suggested that the Superfund program could distinguish between direct and indirect disturbance of hazardous waste. Under the relaxed theory, RCRA disposal regulations would generally be applicable to any directly disturbed waste (i.e., waste that is actually scooped up or moved around during excavation) because when this waste is put back down it could logically be thought of as constituting treatment, storage, or disposal after 1980.

The main purpose of the relaxed theory was to allow EPA to use a hybrid closure on a pre-1980 waste that is only indirectly disturbed or scraped with some remaining waste left in place. In such a case, RCRA closure regulations would be only relevant and appropriate, and not strictly applicable. Accordingly, for indirectly disturbed waste — the waste that is not touched or that is scraped but left behind in a unit — the decisionmaker may determine that neither complete excavation nor a cap is necessary to comply with the relevant and appropriate portions of RCRA at that site.

The relaxed theory of applicability encountered the criticism that it would not be valid to distinguish between direct and indirect disturbance at a site. Indeed, it does stretch the imagination to believe that the scope and intensity of most remedial actions would not "disturb" the entire site. Most remedial actions involve excavation (which causes new layers of soil laced with a contamination to be exposed to air, rain, and sunlight), temporary erosion, heavy machinery (which compacts underlying soil and may squeeze out more leachate from underlying contaminated soils), and some degree of disruption of ecosystems. Furthermore, it seems somewhat absurd to talk about scooping versus scraping in a national rulemaking. The poignant question arises whether there is something basically wrong with a theory that requires such complicated mental gymnastics.

A Move in the Right Direction: Changing the Definition of Disposal

EPA made a move in the right direction at a meeting of the OSWER office directors on June 8, 1987. At that meeting, the office directors agreed to a new, more flexible approach to defining disposal under RCRA. In contrast to the strict theory, disposal is now equated with placement. This approach excludes from the definition of disposal any movement, disturbance, or placement occurring entirely within a unit or area of contamination. Disposal would only occur when hazardous waste was taken across the boundary of a unit or area of contamination. Where there is no disposal, RCRA's disposal requirements are not strictly applicable. This fix is the best that EPA can do, short of congressional action, to resolve the RCRA/CERCLA problem.

Unfortunately, the legal basis for this argument is tenuous for several reasons. First and foremost, the argument is based on the presumption that Congress intended RCRA § 3004(k),⁹⁶ added by HSWA in 1984, to amend or refine the definition of what constitutes disposal by further specifying what is meant by the term, "land disposal." RCRA § 1004(3) has, since the initial enactment of RCRA, always defined disposal as follows:

The term "disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.⁹⁷

In 1984, HSWA added RCRA § 3004(k), which sets forth the following definition of land disposal:

For the purposes of this section, the term "land disposal," when used with respect to a specified hazardous waste, shall be deemed to include, but not be limited to, any placement of such hazardous waste in a landfill, surface impoundment, waste pile, injection well, land treatment facility, salt dome formation, salt bed formation or underground mine or cave.⁹⁸

This new definition can be interpreted as stating that placement into a unit is a key element of disposal. The argument is that waste must cross an area of contamination or unit boundary before any disposal requirements can be applicable. However, § 3004(k) did not explicitly amend or replace RCRA § 1004(3). Therefore, in order to support this new approach, EPA must argue that § 3004(k) supplements § 1004(3), and thereby serves to further specify the key elements of land disposal. It is not at all clear that this was Congress' intent.

To make this argument requires still more tenuous legal interpretations. For instance, it must further be assumed that the phrase in § 3004(k), "[f]or the purposes of this section," refers generally to § 3004, which deals with standards applicable to owners and operators of hazardous waste treatment, storage, and disposal facilities. If this interpretation is correct, then it makes sense to view the new definition as having added a new key element to the definition of disposal. The new key element would be the prerequisite that RCRA waste must first be placed into a unit (i.e., across the boundary of a unit) before an activity could meet the new definition of land disposal.

However, it is possible that the § 3004(k) words "this section" actually refer to the land disposal restriction provisions of HSWA § 201.⁹⁹ Congress had just added new provisions restricting the land disposal of certain hazardous substances; it seems reasonable to assume that Congress intended only to clarify the new terminology it was using in those newly added provisions. Therefore, a counterargument to the interpretation adopted by the OSWER office directors is that the new § 3004(k) definition of land [18 ELR 10539] disposal is only intended to clarify the new terminology of HSWA § 201, which established the land disposal restrictions. Indeed, the words "land disposal" appear to be a term of art that is used only in the land disposal restriction section.

Another problem with this redefinition of disposal is that § 3004(k) provides that land disposal occurs when hazardous waste is placed in one of the units that the statute lists, but suggests by the phrase, "not limited to" that placement in other areas may also be considered land disposal.

The new definition of disposal may also create problems for EPA's hazardous waste enforcement program. The RCRA § 1004(3) definition of disposal has been interpreted by numerous courts to include passive leaking.¹⁰⁰ CERCLA § 101(29) adopts the RCRA definition of disposal. Therefore, this broad definition of disposal is very beneficial to EPA's enforcement authority, since CERCLA § 107(a)(2)¹⁰¹ allows EPA to recover response costs from owners and operators existing at the time of disposal. Indeed, it is far more likely that Congress did not intend the RCRA § 3004(k) definition of land disposal (which requires "placement" and therefore implies that more active management of wastes is required to fulfill the definition) to supersede the broad definition of disposal found in RCRA § 1004(3). It is far more logical to think of "land disposal" as a subset of "disposal," and that active management of hazardous waste or intent to dispose of hazardous waste is not required to fulfill the definition of "disposal."

Still another problem with this new definition of disposal is that it places a tremendous amount of reliance on expanding the definition of "unit." In other words, if "unit" is not defined broadly enough to encompass the large areas of contamination that CERCLA remedial actions usually encounter, then there is no benefit to a definition of disposal that excludes movement, disturbance, or placement that occurs entirely within a unit. Accordingly, the proposed NCP discusses, not "unit," but "areas of contamination," and the developing RCRA corrective action proposed rule is considering a broader definition of units in certain circumstances.

Provided that the numerous legal obstacles can be overcome, this latest approach to RCRA/CERCLA does provide a foundation for some reasonable and consistent policy decisions regarding what types of remedial action constitute disposal and thereby trigger the applicability of RCRA's disposal regulations. Note that this current approach builds upon the same twofold test that was articulated for determining the applicability of RCRA under the now defunct strict theory of RCRA applicability. The only difference is that this current approach alters the definition of RCRA disposal so that certain remedial actions fail the test. For instance, in reliance upon the new definition of disposal, the CERCLA Compliance With Other Laws Manual identifies the following remedial activities as constituting disposal:

depositing RCRA hazardous waste into a unit, including the relocating of spilled RCRA hazardous wastes;

removing RCRA hazardous waste from a unit, treating it outside that unit, and replacing the treated waste in the contaminated area from which it originated; and

picking up and treating RCRA hazardous waste in a treatment unit within a land disposal unit and then redepositing it into the original land disposal unit (does not include in situ treatment).

By contrast, remedial activity such as the movement and consolidation of RCRA hazardous wastes within a unit and the covering and sealing off of RCRA hazardous wastes in place does not constitute disposal because neither remedial action has placed RCRA waste into a unit. Similarly, where some of the waste at a site is left behind in the original unit or area while other waste is taken from that unit or area and placed into another unit, only the waste that is removed and placed into another unit is deemed to fulfill the new definition of disposal. In these two latter examples, the remedial activities that did not constitute RCRA disposal do not trigger the applicability of RCRA's disposal regulations. Nevertheless, certain RCRA disposal requirements may still be relevant and appropriate to the waste that has not been "disposed."

Both the RCRA corrective action and the CERCLA remedial action programs are depending on this new definition of disposal to give them the flexibility that they legitimately need. EPA has clearly done its best to resolve the mismatch between RCRA and CERCLA under the current statutory regimes.

Summary of EPA's Attempts to Correct the RCRA/CERCLA Mismatch

EPA has attempted to ameliorate the mismatch between RCRA and CERCLA by setting up the previously discussed two-fold objective test for the applicability of RCRA disposal regulations, and then adjusting the criteria of the test so that many CERCLA actions will fail to match the jurisdictional prerequisites of the test; thus, RCRA disposal regulations will not be applicable to many remedial actions. The first adjusted criterion involves the determination of whether there is RCRA hazardous waste at a CERCLA site. As discussed above, Superfund allows assumptions to be made which make it more likely that CERCLA waste will not be deemed RCRA waste.

EPA has also adjusted a second criterion by changing the definitions of disposal and unit; again, the result is that many CERCLA cleanups will fail to triger RCRA applicability. The new definitions go a long way to ameliorate the RCRA/CERCLA mismatch, but the new definition of disposal is a bit strained and faces several legal obstacles.

Amending the RCRA Definition of Disposal and Unit — A Congressional Solution

Congress should take decisive action in the upcoming RCRA reauthorization to resolve the RCRA/CERCLA mismatch. Specifically, what is needed is a recognition that preventive hazardous waste regulation necessarily differs from corrective hazardous waste management. Congress should amend RCRA by providing two definitions of disposal — one for ongoing preventive treatment, storage, and disposal, and another definition for corrective action. The definition of disposal for corrective action should allow significantly more management of hazardous waste [18 ELR 10540] to escape triggering a new act of disposal that would have to comply with the preventive regulations. Congress should codify the concept that one placement into another unit constitutes disposal in the remedial action context.

Congress could legitimately point to the differences in extent of contamination, the basic differences in activities (i.e., strict preventive measures to avoid a problem versus quick, cost-effective cleanup of a problem), and the different incentives that the separate programs were intended to provide (i.e., deterring imprudent operation of hazardous waste facilities by requiring compliance with strict standards versus encouraging voluntary cleanups by private parties through flexible standards). By clearly distinguishing between disposal and cleanup, Congress could limit the application of some of the disposal requirements, such as the closure options, to those sites where a CERCLA remedial action is actually closing an old waste management facility that is largely intact and does not have massive contamination.

In addition, Congress should expand the definition of unit in the RCRA corrective action context. This amendment should codify the new corrective action management unit (CAMU) concept that is now being considered in the developing RCRA corrective action regulatory proposals, and the analogous broad "area of contamination" concept discussed in the preamble to the proposed NCP. Although not yet proposed at the time of this writing, the CAMU concept, like the "area-of-contamination" concept, has emerged from an upper-level EPA review and would allow decisionmakers to delineate an entire contaminated area as one unit — even though the area may actually be comprised of several discrete units or "hot spots." The limitation would be that uncontaminated land could not be included in a CAMU, and there must be significant contamination in between the discrete units in order to consider the entire area a CAMU. The benefit of designating an area as a CAMU is that movement of RCRA hazardous waste within the CAMU would not be considered a new act of disposal. The addition of the CAMU to RCRA corrective action regulations represents the Agency's recognition that corrective redisposal of inadequately disposed hazardous substances requires more flexibility than RCRA's preventive disposal regulations can provide.

Although the CAMU offers a hopeful way out of the RCRA applicability morass, the CAMU will be useless if the Agency's new definition of disposal as placement into a unit does not withstand probable legal challenges. Therefore, it is imperative that Congress move to clarify what constitutes disposal in the preventive context and what constitutes disposal in the remedial or corrective context.

EPA's two hazardous waste programs have struggled long enough to find their way in the RCRA/CERCLA labyrinth. Formulating consistent RCRA/CERCLA policies has slowed down these programs and wasted their finite resources. EPA needs a congressional amendment to move from wasted words to waste cleanup.

Stephen Merrill Smith is an attorney-advisor for EPA's Office of Enforcement and Compliance Monitoring — Waste Division. He co-chaired the 1985 revisions to the National Contingency Plan. He also led the development of Superfund's Compliance with Other Environmental and Public Health Laws Policy as well as the CERCLA Compliance with Other Laws guidance manual. He has a B.A. in political science from Auburn University, a J.D. from Antioch School of Law, and an LL.M. in environmental and energy law from George Washington University. This Article reflects the personal views of the author and does not necessarily reflect the official views of the Environmental Protection Agency.

1. 42 U.S.C. §§ 9601-9675, ELR STAT. 44001-44081.

2. For example, although CERCLA § 104(c)(3), 42 U.S.C. § 9604(c)(3), ELR STAT. 44012, directed that the off-site disposal of waste must be in accordance with Subtitle C of the Resource Conservation and Recovery Act (RCRA), it was silent about whether on-site disposal should be controlled by any other laws.

3. 42 U.S.C. § 9605, ELR STAT. 44021.

4. 40 C.F.R. pt. 300 (1987).

5. 33 U.S.C. § 1321, ELR STAT. FWPCA 039-042.

6. 42 U.S.C. §§ 6901-6991i, ELR STAT. RCRA 001-046. Subtitle C consists of RCRA §§ 3001-3020, 42 U.S.C. §§ 6921-6939b, ELR STAT. RCRA 009-025.

7. National Oil and Hazardous Substances Pollution Contingency Plan, 47 Fed. Reg. 31180 (July 16, 1982).

8. The Agency said:

For instance, acceptable levels of hazardous substances in soil are not established, and there are no generally accepted levels for many other hazardous substances in other media. Even where there are standards for a particular substance, they may not be applicable to the conditions surrounding the release. Therefore, if the Plan included a rigid requirement that standards be met, it would obscure the real issues in many cases of how to adequately protect public health.

47 Fed. Reg. at 31185 (July 16, 1982).

9. Id. at 31184-85.

10. Environmental Defense Fund, Inc. v. Environmental Protection Agency, No. 82-2234 (D.C. Cir.) and New Jersey v. Environmental Protection Agency, No. 82-2238 (D.C. Cir.) (settlement agreement filed January 16, 1984). The settlement agreement stated:

EPA will propose amendments to the NCP to require that (1) relevant quantitative health and environmental standards and criteria developed by EPA under other programs be used in determining the extent of remedy and (2) if such standards or criteria are substantially adjusted (e.g., for risk level or exposure factors), then the lead agency must explain the basis for this adjustment.

EPA will promulgate a rule addressing the issue of whether response activities must comply with other federal, state, or local environmental laws.

Id.

11. Section 300.68(i) of the NCP parroted the Compliance Policy, which was published as part of the preamble, see infra note 12 and accompanying text, in that it required all remedial actions selected for a site to attain or exceed applicable or relevant and appropriate requirements identified for that site — except under the following five circumstances:

1) Interim Remedy — Where the selected alternative is not the final remedy and will become part of a more comprehensive remedy, the lead agency may select an interim remedy;

2) Fund-Balancing — For all of the alternatives that attain or exceed applicable or relevant and appropriate Federal requirements and that will be Fund financed, the need for protection of public health, welfare, and the environment at the facility under consideration is, considering the amount of money available in the Fund, outweighed by the need for action at other sites that may present a threat to public health or welfare or the environment. In the event that the Fund balancing exception is invoked, the lead agency shall select the alternative that most closely approaches the level of protection provided by applicable or relevant and appropriate Federal requirements, considering the specific Fund-balanced sum of money available for the immediate facility. Fund-balancing is not a consideration in determining the appropriate extent of remedy when the response will be performed by a potentially responsible party;

3) Technical Impracticality — Where no alternative that attains or exceeds applicable or relevant and appropriate Federal public health and environmental requirements is technically practical to implement, the lead agency shall select the alternative that most closely approaches the level of protection provided by the applicable or relevant and appropriate requirements, and which is reasonable to implement from an engineering perspective;

4) Unacceptable Environmental Impacts — Where all the alternatives that attain or exceed Federal public health and environmental requirements, if implemented, will result in significant adverse environmental impacts, the lead agency shall select the alternative that most closely approaches the level of protection provided by applicable or relevant and appropriate requirements, and that results in no significant adverse environmental impacts; or

5) Overriding Public Interest Related to Enforcement — For cases in which (1) the remedy is to be carried out pursuant to CERCLA section 106, (2) the Fund is unavailable, (3) there is a strong public interest in expedited cleanup, and (4) litigation probably would not result in the desired remedy, the lead agency will select the alternative that most closely approaches applicable or relevant and appropriate Federal public health and environmental statutes, in light of the need to invoke the exception.

See 50 Fed. Reg. 47912, 47975 (Nov. 20, 1985).

12. 50 Fed. Reg. at 47946 (Nov. 20, 1985).

13. CERCLA reauthorization recently added some requirements to the list of potential ARARs that were not promulgated pursuant to the APA's informal rulemaking procedures and that are not legally enforceable across the nation. See infra note 22 and accompanying text.

14. EPA, CERCLA Compliance With Other Laws Manual, Volumes I and II, Office of Solid Waste and Emergency Response Directive Number 9234.1-01 (1988).

15. How this process is supposed to work and how well it actually worked in the context of RCRA ARARs are discussed infra at notes 56-101 and accompanying text.

16. Pub. L. No. 99-499, 100 Stat. 1613 (1986) (codified at 42 U.S.C. §§ 9601-9675).

17. CERCLA § 121(d)(2)(A), which was added by SARA, states:

With respect to any hazardous substance, pollutant or contaminant that will remain onsite, if … any standard, requirement, criteria, or limitation under any Federal [or more stringent, promulgated state] environmental law, including, but not limited to, the Toxic Substances Control Act, the Safe Drinking Water Act, the Clean Air Act, the Clean Water Act, the Marine Protection, Research and Sanctuaries Act, or the Solid Waste Disposal Act … is legally applicable to the hazardous substance or pollutant or contaminant concerned or is relevant and appropriate under the circumstances of the release or threatened release of such hazardous substance or pollutant or contaminant, the remedial action selected under section 104 or secured under section 106 shall require, at the completion of the remedial action, a level or standard of control for such hazardous substance or pollutant or contaminant which at least attains such legally applicable or relevant and appropriate standard, requirement, criteria, or limitation. Such remedial action shall require a level or standard of control which at least attains Maximum Contaminant Level Goals established under the Safe Drinking Water Act and water quality criteria established under section 304 or 303 of the Clean Water Act, where such goals or criteria are relevant and appropriate under the circumstances of the release or threatened release.

42 U.S.C. § 9621(d)(2)(A), ELR STAT. 44055.

18. See supra note 17.

19. A 1985 Office of Technology Assessment (OTA) report criticizes compliance with ARARs as not answering the question of the appropriate extent of cleanup. The report also analyzes seven alternative approaches for determining the extent of cleanup at Superfund sites: (1) continued use of ad hoc practices of the pre-1985 NCP; (2) use of a site-specific risk assessment coupled with site-specific or nationally determined acceptable risk levels (with remedial actions to be selected on the basis of their ability to achieve the maximum difference between the residual chemicals and a predetermined acceptable level of risk for the minimum cost); (3) establishing nationally uniform goals for acceptable levels of chemicals commonly found at Superfund sites that would apply to all possible routes of exposure at all sites; (4) cleanup to background or (where background cannot be determined) pristine levels of chemicals; (5) use of best available technology or best engineering judgment; (6) use of a site-specific quantitative cost-benefit analysis; and (7) use of site classification (similar to EPA's groundwater protection strategy) whereby cleanup levels depend upon local land use decisions about the present and future use of a site (OTA's recommendation). These seven approaches are a good example of the different options for determining cleanup standards that had been suggested to, and considered by, EPA. OTA, SUPERFUND STRATEGY (1985).

20. SDWA § 1412, 42 U.S.C. § 300g-1, ELR STAT. 41102-41103.

21. FWPCA § 304, 33 U.S.C. § 1314, ELR STAT. FWPCA 031-033.

22. CERCLA § 121(d)(2)(A), 42 U.S.C. § 9621(d)(2)(A), ELR STAT. 44055. See supra note 17. The addition of these three categories of standards to the potential ARAR list resulted in a host of implementation problems. First, compliance with state standards may lead to drastically different remedies at different sites, depending on the states in which sites are located. Some state standards are more stringent than similar federal standards or standards in other states. Or, standards in one state may follow a completely different approach than that of federal or other states' standards. State standards are also sometimes very complicated, having been promulgated by a multiplicity of state agencies whose jurisdictions overlap. See EPA, STATE STANDARDS AS POTENTIAL ARARS FOR REMEDIAL ACTIONS IN CALIFORNIA, FLORIDA, MICHIGAN, MONTANA, AND NEW JERSEY (Office of Emergency and Remedial Response 1987). Moreover, there is the problem of coordinating with the various state agencies to achieve a timely identification of state ARARs for a given site.

The addition of MCLGs to the list of potential ARARs creates a problem for Superfund cleanups mainly because MCLGs are based entirely on potential health effects. For instance, because there are no thresholds of exposure to a carcinogen beneath which there will be no adverse health effects, MCLGs target the only safe level of a carcinogen in drinking water — zero. Therefore, where an MCLG is found relevant and appropriate to the circumstances of the release, a plain reading of SARA indicates that a zero level of exposure must be attained (unless a statutory waiver such as "technical impracticability" is invoked). Attaining zero MCLGs would make cleanup costs extraordinarily high because reaching zero in a contaminated aquifer is virtually impossible and the remedial action would therefore never be complete. Moreover, according to the criteria for identifying relevant and appropriate requirements established in the Compliance Manual, MCLGs would almost always be relevant and appropriate. However, EPA Administrator Lee Thomas has decided that MCLGs will generally not be deemed relevant and appropriate to the circumstances of releases because the less stringent maximum contaminant levels (MCLs) are the legally enforceable standard under the SDWA — notwithstanding the fact that SARA made MCLGs the legally enforceable standard under CERCLA. Other reasons for Thomas' decision include the expense of using MCLGs and EPA's reluctance to establish a cleanup policy that appears to undermine the integrity of its drinking water standards. At the time of this writing, Thomas' disregard of MCLGs appears to have no basis in the amended CERCLA, and is therefore encountering formidable opposition from environmental groups and members of Congress who drafted the SARA amendments regarding cleanup standards.

With regard to the FWQC, EPA negotiated with the House Energy and Commerce Committee staff to include a special test for FWQC relevance and appropriateness in the statute. SARA provided that in determining whether an FWQC is an ARAR, the President shall consider the uses of the water, the environmental media affected, the purpose for which the criteria were developed, and the latest information available. CERCLA § 121(d)(2)(A), 42 U.S.C. § 9621(d)(2)(A), ELR STAT. 44055. The test goes a long way to relieve the implementation problems of FWQCs as ARARs. It is too bad that EPA did not also negotiate some kind of special test for MCLGs.

23. The 1982 NCP revisions had stated:

The appropriate extent of remedy shall be determined by the lead agency's selection of the remedial alternative which the agency determines is cost-effective (i.e., the lowest cost alternative that is technologically feasible and reliable and which effectively mitigates and minimizes damage to and provides adequate protection of public health, welfare, or the environment).

National Oil and Hazardous Substances Pollution Contingency Plan, 47 Fed. Reg. 31180, 31217 (July 16, 1982). For a discussion of the deletion of this language in the 1985 NCP revisions, see the 1985 preamble at 50 Fed. Reg. 47912 (Nov. 20, 1985).

24. CERCLA § 121 states:

(b) General Rules — (1) Remedial actions in which treatment which permanently and significantly reduces the volume, toxicity or mobility of the hazardous substances, pollutants, and contaminants is a principal element, are to be preferred over remedial actions not involving such treatment. The offsite transport and disposal of hazardous substances or contaminated materials without such treatment should be the least favored alternative remedial action where practicable treatment technologies are available. The President shall conduct an assessment of permanent solutions and alternative treatment technologies or resource recovery technologies that, in whole or in part, will result in a permanent and significant decrease in the toxicity, mobility, or volume of the hazardous substance, pollutant, or contaminant. In making such assessment, the President shall specifically address the long-term effectiveness of various alternatives. In assessing alternative remedial actions, the President shall, at a minimum, take into account:

(A) The long-term uncertainties associated with land disposal;

(B) the goals, objectives, and requirements of the Solid Waste Disposal Act;

(C) the persistence, toxicity, mobility, and propensity to bioaccumulate of such hazardous substances and their constituents;

(D) short-and long-term potential for adverse health effects from human exposure;

(E) long-term maintenance costs;

(F) the potential for future remedial action costs if the alternative remedial action in question were to fail; and

(G) the potential threat to human health and the environment associated with excavation, transportation, and redisposal, or containment.

The president shall select a remedial action that is protective of human health and the environment, that is cost effective, and that utilizes permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable. If the President selects a remedial action not appropriate for a preference under this subsection, the President shall publish an explanation as to why a remedial action involving such reductions was not selected.

42 U.S.C. § 9621(b), ELR STAT. 44055 (emphasis added).

25. 42 U.S.C. § 9621(e), ELR STAT. 44056.

26. Other types of ARARs exist that are hybrids of two or more of these categories.

27. Emission and effluent discharge limits, as well as methodologies for establishing such limits, are hybrids between action-specific and chemical-specific ARARs because they involve in action (i.e., a discharge) taken with respect to a chemical.

28. See supra note 22 and accompanying text.

29. See id.

30. See id.

31. See 40 C.F.R. pt. 264, subpts. G, K, and N (1987).

32. See infra discussion of RCRA closure requirements at notes 66-74 and accompanying text.

33. See 40 C.F.R. § 403.5 (1987).

35. ELR ADMIN. MATERIALS 45019.

36. 40 C.F.R. § 761.60 (1987).

37. 50 Fed. Reg. 47912, 47917 (Nov. 20, 1985).

38. Id. at 47921.

39. A 1985 OTA report reviewed the proposed 1985 NCP revisions to require compliance with ARARs and stated:

It is not clear that this requirement would really resolve the issue of the extent of cleanup…. Other laws such as the Safe Drinking Water Act (SDWA), Clean Water Act (CWA), and Clean Air Act (CAA) regulate contaminants in the environment. Current provisions of these acts are insufficient to define the extent of cleanup under CERCLA. The number of chemicals regulated under each act is small compared with the number of compounds already identified at Superfund sites. The standards developed under these laws consider one medium and/or route of exposure: SDWA, drinking water (ingestion); CWA, surface water; CAA, air (inhalation); SDWA health advisories only consider short-term effects (1 day to 2 years) and do not, therefore, consider carcinogenic effects. While none of these existing standards are alone sufficient to determine the extent of cleanup, they may provide guidance for a particular medium or route of exposure.

SUPERFUND STRATEGY, supra note 19, at 112.

40. Occasionally a chemical-specific ARAR may indicate that treatment is required. This is true with respect to TSCA requirements for incineration of liquid PCBs in concentrations greater than 500 ppm. See supra note 36 and accompanying text. Moreover, the level required by a chemical-specific ARAR may only be attainable through one type of remedy; in this way an ARAR may help indicate the proper remedy to select. Furthermore, the RCRA land disposal restrictions may require treatment to a certain level before specific types of waste can be placed or replaced upon land.

41. For example, where hazardous substances in soil may leach into groundwater or surface water ("exposure pathways of concern"), MCLs, MCLGs, and FWQC may be applicable or relevant and appropriate. See supra note 22 and accompanying text.

42. As a general matter, EPA is proposing to use MCLs rather than MCLGs. See supra note 22.

43. Many other health- and risk-based exposure limits have been established for some of these chemicals. But these exposure limits are not potential ARARs because they are neither legally enforceable nor have they been promulgated pursuant to informal notice and comment rulemaking. These values are compiled in the "to be considered" list in the Compliance Policy. See supra notes 12-13 and accompanying text. Values in this list are sometimes referred to as "TBCs." Two examples of frequently used TBC exposure limits are reference doses and cancer potency slope factors. U.S. EPA 1988, Integrated Risk Information System, Office of Health and Environmental Assessment, Environmental Criteria and Assessment Office, Cincinnati, Ohio (on line computer system).

44. ARARs can indicate the depth and circumference of excavation of contaminated soil and debris when ARARs are used as cleanup targets in environmental fate and transport models. (Environmental fate and transport models are physical or computerized analytical models used to determine what happens to a given chemical as it is released into a particular type of environment and how it is transported through the environment to living receptors.) Because there are no federal standards for soils, health-based standards for other media (chiefly water) can be used in fate and transport models to estimate, through backcalculation, the effects of residual soil contamination on these media. In this manner, MCL targets in groundwater may be used in conjunction with other site-specific data to backcalculate to the determination of how many parts per million of a given hazardous substance may be left in soil without generating enough hazardous leachate to exceed the target MCL in the groundwater. Many models are available, and Superfund uses models on an ad hoc, site-by-site basis. Although such backcalculation is often used, EPA has not yet agreed upon a consistent approach for backcalculating safe levels of contaminants in soils.

45. See CERCLA § 121(b), 42 U.S.C. § 9621(b), ELR STAT. 44055. Remedies must be protective of human health and the environment, utilize permanent solutions and alternative technologies to the maximum extent practicable, and be cost-effective. See supra note 24.

46. See supra note 45.

47. See id.

48. The Assistant Administrator for the Office of Solid Waste and Emergency Response, Dr. J. Winston Porter, instructed his staff to draft a rule that was not overly prescriptive regarding the remedy selection decisionmaking process and the interpretation of the statutory remedy selection criteria.

49. At this writing, the Office of Management and Budget is reviewing the draft proposed NCP. The revisions to the NCP are not yet proposed in the Federal Register.

50. 42 U.S.C. § 9621(d), ELR STAT. 44055.

51. The 1985 NCP defines applicable requirements as "those Federal requirements that would be legally applicable, whether directly, or as incorporated by a Federally authorized State program, if the response actions were not undertaken pursuant to CERCLA." The 1985 NCP defines relevant and appropriate requirements as "those Federal requirements that, while not applicable, are designed to apply to problems sufficiently similar to those encountered at CERCLA sites that their application is appropriate. Requirements may be relevant and appropriate if they would be 'applicable' but for jurisdictional restrictions associated with the requirements." 40 C.F.R. § 300.6 (1987). Note, however, that SARA amended CERCLA cleanup standards to include state requirements as well as MCLGs and FWQC. CERCLA § 121(d), 42 U.S.C. § 9621(d), ELR STAT. 44055; see also supra note 22 and accompanying text. Also note that the draft proposed NCP, currently being reviewed by OMB, contains revisions to the definitions of applicable requirements and relevant and appropriate requirements that do not change the meaning of the definitions, but only attempt to clarify them.

52. It should be noted that EPA's Office of General Counsel (OGC) has determined that Congress intended an implied repeal of all other laws for CERCLA response and abatement actions. OGC posits that the environmental and public health requirements of other laws are technically not legally applicable by virtue of their own jurisdiction, but rather are legally applicable or relevant and appropriate to CERCLA response and abatement actions through the cleanup standards language of CERCLA § 121.

53. See 40 C.F.R. § 300.68(i)(5) (1987). See also supra note 11 and accompanying text.

54. A remedial action need not attain or comply with certain ARARs when the President finds that:

(A) the remedial action selected is only part of a total remedial action that will attain such level or standard of control when completed;

(B) compliance with such requirement at [a site] will result in greater risk to human health and the environment than alternative options;

(C) compliance with such requirements is technically impracticable from an engineering perspective;

(D) the remedial action selected will attain a standard of performance that is equivalent to that required under the otherwise applicable standard, requirement, criteria, or limitation, through use of another method or approach;

(E) with respect to a State standard, requirement, criteria, or limitation, the State has not consistently applied (or demonstrated the intent to consistently apply) the standard, requirement, criteria, or limitation in similar circumstances at other remedial actions within the State; or

(F) in the case of a remedial action to be undertaken solely under section 9604 using the Fund, selection of a remedial action that attains such level or standard of control will not provide a balance between the need for protection of public health and welfare and the environment at the facility under consideration, and the availability of amounts from the Fund to respond to other sites which present or may present a threat to public health or welfare or the environment, taking into consideration the relative immediacy of such threats.

CERCLA § 121(d)(4), 42 U.S.C. § 9621(d)(4), ELR STAT. 44056.

55. 42 U.S.C. § 9621(d)(4)(D), (E), ELR STAT. 44056. See supra note 54.

56. See 40 C.F.R. pt. 264 (1987).

57. See id.

58. See id.

59. See 40 C.F.R. pt. 268 (1987).

60. 42 U.S.C. § 6924(u)-(v), ELR STAT. RCRA 015. HSWA was enacted by Pub. L. No. 98-616, 98 Stat. 3221 (1984).

61. Environmental Defense Fund, Inc. v. Environmental Protection Agency, No. 82-2234 (D.C. Cir.) and New Jersey v. Environmental Protection Agency, No. 82-2238 (D.C. Cir.) (settlement agreement filed Jan. 16, 1984). See supra note 10 and accompanying text.

62. Id. (emphasis added).

63. The only exception is the subpart F corrective action program for groundwater. See supra note 60 and accompanying text.

64. In fact, at the time of this writing, EPA still has not proposed regulations to implement RCRA corrective action. See supra note 60 and accompanying text.

65. However, even if EPA had waited for corrective action regulations to be promulgated, this would not have totally solved the problem. Instead, it would only have deferred the resolution of the difficult question of how to sort out which of RCRA's preventive regulations should be applicable to corrective, remedial actions. In other words, had CERCLA waited for RCRA corrective action regulations to come out, RCRA would have had to struggle with the conflicts between prevention and cure in the context of creating new regulations on corrective action. This is because RCRA corrective actions — like CERCLA remedial actions — will fulfill the jurisdictional prerequisites of RCRA's preventive regulations, causing them to be applicable to some degree. It is important to note that although it would have been better to let RCRA corrective action take the lead, there is only so much that EPA can do under the present statutory regimes to resolve the tension between prevention and cure. As is discussed at the conclusion of this Article, what is needed is congressional recognition of the problem through appropriate amendments to the definitions of "disposal" and "unit" in RCRA.

66. Of course, the most obvious analogy that could be drawn was between CERCLA remedial action and RCRA § 3004 corrective action. Both statutes provide for corrective or remedial action once improper waste management has caused a release to occur. Nevertheless, as mentioned earlier, during the development and drafting of the Compliance Policy and the 1985 NCP revisions, in which Superfund first promulgated a rule requiring compliance with other laws, the RCRA program was not yet developing corrective action regulations for proposal. See supra notes 60 and 64 and accompanying text.

67. Preamble language that accompanied the promulgation of the RCRA closure regulations indicates that the Agency assumed that most units would not have extensive leaks at the end of their operational life:

In a few cases … contamination may have migrated a considerable distance from the impoundment and possibly even entered ground water. This situation necessitates closure under the second alternative [landfill] to minimize the rate of migration and monitor for potential ground water contamination.

Hazardous Waste Management System; Permitting Requirements for Land Disposal Facilities, 47 Fed. Reg. 32274, 32321 (1982) (emphasis added).

68. See, e.g., 40 C.F.R. § 264.228 (1987) (closure and post-closure care of surface impoundments).

69. See id.

70. However, hazardous liquids cannot merely be capped in place; before capping a surface impoundment containing hazardous liquids, the owner/operator must eliminate free liquids and stabilize the wastes.

71. CERCLA § 121(c), 42 U.S.C. § 9621(c), ELR STAT. 44055, requires EPA to review periodically every remedial action that results in any hazardous substance remaining at the site to assure that human health and the environment are being protected. The reviews are to be conducted no less often than every five years after the initiation of the remedial action. If the review indicates that protection is not being provided, then further action in accordance with CERCLA §§ 104 or 106, 42 U.S.C. §§ 9604, 9606, ELR STAT. 44011-44021, 44023-44024, must be taken.

In addition, CERCLA § 104(c)(6), 42 U.S.C. § 9604(c)(6), ELR STAT. 44013, requires EPA to conduct and pay for groundwater remediation for up to 10 years after a cleanup is initiated.

72. As a result of pressures from the Superfund program as well as from RCRA's efforts to develop its own corrective action regulation, a hybrid closure regulation was proposed by the RCRA program. See Proposed Amendment for Landfill, Surface Impoundment, and Waste Pile Closures, 52 Fed. Reg. 8712 (Mar. 19, 1987). However, due to receipt of highly critical comments, the proposed rule was withdrawn and is being redrafted.

73. Instead, EPA made the following statement in the 1985 NCP preamble:

EPA notes here that corrective action requirements under section 3004 of RCRA will be developed in the near future. At such time, EPA will, for purposes of compliance with the NCP, determine whether it is more appropriate to follow the corrective action requirements than the closure requirements to the extent those requirements differ.

50 Fed. Reg. 47912, 47923 (Nov. 20, 1985).

74. Another angle to this proffered argument is that if industrial compliance with RCRA closure is necessary to protect human health and the environment during the management of hazardous substances, then any approach to governmental management of hazardous substances that differs from those specified in RCRA must not be as protective.

The argument is flawed because it ignores the valid distinctions between the decommissioning of discrete facilities conducted in the context of an ongoing business operation, and the radical, often time-critical governmental response actions necessary to abate the threats posed by old contamination problems. These old contamination problems are often dispersed broadly in varying mixtures, concentrations, and environmental media.

75. 40 C.F.R. pt. 264, subpt. F (1987).

76. See 40 C.F.R.pt. 268 (1987).

77. For this reason, the Superfund program is developing a separate BDAT for soil and debris that is mixed with banned waste.

78. See 40 C.F.R. pt. 264, subpts. J-N (1987).

79. See 50 Fed. Reg. 47912, 47923 (Nov. 20, 1985).

80. Id. at 47922.

81. Id. at 47918 (emphasis added).

82. Id. at 47947.

83. Here is how the NCP preamble described the hybrid closure option:

Some commenters on the proposed NCP stated that there is insufficient flexibility under the RCRA closure regulations, 40 CFR Part 264, subpart G, [sic] to fashion appropriate CERCLA remedies. EPA believes that a combination of the relevant and appropriate RCRA storage and disposal closure regulations provides an approach to CERCLA cleanup actions that is both flexible and consistent with RCRA.

The RCRA surface impoundment closure rules, 40 CFR § 264.228 and accompanying preamble, provide two closure options. The first option, for storage surface impoundments, requires that all waste residues and contaminated liners and subsoils be removed or decontaminated. The second option, for disposal surface impoundments (where contaminated materials remain after closure), resembles the requirements for closure as a landfill whereby a final cover is placed over the unit, and post-closure requirements apply, such as maintenance of the final cover, ground water monitoring, and corrective action if the ground-water protection standards are violated….

An approach that is consistent with the RCRA storage closure requirements and provides flexibility to CERCLA cleanup actions can best be demonstrated through an example. At the Crystal Chemical Company site in Texas, EPA has tentatively determined that off-site soil contaminated with arsenic may be cleaned up to a 100 parts per million (ppm) level, pending verification monitoring. The 100 ppm level has been determined by the Agency for Toxic Substances and Disease Registry (ATSDR) of the Center for Disease Control, Department of Health and Human Services; to be a safe level based on direct ingestion of the contaminated soil by a child. The verification monitoring means that ground water will be monitored to confirm that the residuals in the soil will not result in unsafe levels (i.e., will not exceed the drinking water standard for arsenic, 0.05 ppm) in ground water.

The RCRA storage closure requirements to "remove or decontaminate" contaminated soils will be relevant or appropriate in the Crystal Chemical case as well as many other CERCLA cleanup actions. Under RCRA, cleanup to background levels certainly satisfies this requirement. EPA believes, however, that a site-specific limited risk-assessment approach to determine acceptable levels of removal makes sense. Such an approach would take into account (a) the storage versus disposal dichotomy discussed above (i.e., no further need for action after storage closure to provide protection of human health and the environment); and (b) all the routes of exposure addressed by the disposal closure and post-closure care requirement (i.e., direct contact, wind dispersal, surface water, ground water, and bioaccumulation).

Id. at 47923.

84. The Agency recently promulgated revisions to the Subpart K storage closure requirements that change the standards that define what it means to completely remove all hazardous waste and residues from an area of contamination during storage or clean closure. See Interim Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities, 52 Fed. Reg. 8704 (Mar. 19, 1987). The revisions now state that clean closure is accomplished when Agency-approved, health-based levels of hazardous substances are attained for all exposure pathways in the area of contamination. However, when the Crystal Chemical NDD was drafted, the revisions had not yet been proposed, and the clean closure standard was defined as removal to background levels.

85. It is interesting to note that RCRA had never claimed this jurisdiction before.

86. OSWER comprises the Superfund program, the RCRA program, the joint RCRA/CERCLA enforcement program, and the underground storage tank program.

87. This is the definition of RCRA treatment codified at 40 C.F.R. § 260.10 (1987).

88. This is the definition of RCRA storage codified at 40 C.F.R. § 260.10 (1987).

89. 42 U.S.C. § 6903(3), ELR STAT. RCRA 004.

90. See supra notes 56-60 and accompanying text.

91. See RCRA § 3004(d), (k), 42 U.S.C. § 6924(d), (k), ELR STAT. RCRA 012, 013.

92. As indicated above, supra note 89 and accompanying text, placement is a subset of disposal; in every instance in which placement occurs, disposal will also occur. But there may be some instances in which disposal occurs and placement does not occur. For example, RCRA hazardous waste is excavated within an area of contamination and replaced in that same area without ever being removed from the area — according to the strict theory, disposal has occurred, but the type of placement that activates land disposal restriction applicability has not occurred.

93. As discussed previously, supra note 60 and accompanying text, there are two kinds of corrective action requirements: groundwater corrective action and the more sweeping RCRA §§ 3004(u)-(v) requirements for which regulations are presently being drafted.

94. However, any person responsible for the handling, storing, treating, transporting, or disposing of any solid or hazardous waste that may present an imminent and substantial endangerment to health or the environment may be liable under the imminent hazard authority of RCRA § 7003, 42 U.S.C. § 6973, ELR STAT. RCRA 034.

95. EPA's Office of General Counsel has determined that minor soil grading activities taken to allow proper runoff of water and to otherwise prepare for the installation of some kind of cap are not considered a direct disturbance of waste. Any disturbance caused by this activity is considered indirect disturbance and does not constitute a new act of placement that fulfills the RCRA definition of disposal.

96. 42 U.S.C. § 6924(k), ELR STAT. RCRA 013.

97. 42 U.S.C. § 6903(3), ELR STAT. RCRA 004.

98. 42 U.S.C. § 6924(k), ELR STAT. RCRA 013.

99. Pub. L. No. 98-616, 98 Stat. 3226-3233 (1984) (codified at 42 U.S.C. § 6924).

100. See, e.g., United States v. Waste Industries, 734 F.2d 159, 14 ELR 20461 (4th Cir. 1984).

101. 42 U.S.C. § 9607(a)(2), ELR STAT. 44024.

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