20 ELR 10222 | Environmental Law Reporter | copyright © 1990 | All rights reserved

The 1990 National Contingency Plan — More Detail And More Structure, But Still a Balancing Act

Editors' Summary: The 1986 Superfund Amendments required EPA to make substantial changes in the national contingency plan, EPA's principal rulemaking under the Superfund program. Congress imposed potentially conflicting mandates on EPA, such as requirements to maximize treatment and to ensure cost-effective remedies. EPA's proposed NCP revisions, issued in December 1988, were analyzed in ELR's March 1989 issue by the EPA attorney who played a principal role in drafting the proposed revisions. In this Article, the final NCP revisions, which took effect on April 9, 1990, are analyzed by the EPA attorney primarily responsible for the legal issues in the final rule. The rule and preamble, which together cover 200 pages in the Federal Register, include EPA's response to the 1986 amendments and revisions that reflect EPA's experience with the first decade of Superfund. The author provides an overview of the framework of the final NCP, analyzes the major issues addressed by the final rule, and discusses the prinicipal changes from the 1988 proposed rule. The author observes that the true test of the NCP's success will be in the field, and that Congress should give the new regulatory framework some time to be implemented before imposing another set of mandates and deadlines.

Mr. Starfield is an attorney-adviser in the U.S. Environmental Protection Agency's Office of General Counsel. He has worked on Superfund issues at EPA since 1987, and in the private sector from 1981-87. He is the attorney principally responsible for legal issues in the National Contingency Plan's 1990 revisions, which are the subject of this Article. The views expressed are those of the author and do not necessarily represent the views of the U.S. Environmental Protection Agency.

List of Acronyms

The following abbreviations are used in this Article:

ACLs—alternate concentration limits

ARARs—applicable or relevant and appropriate requirements

BDAT—best demonstrated available technology

CERCLA—Comprehensive Environmental Response, Compensation, and Liability Act of 1980

CRP—community relations plan

EPA—Environmental Protection Agency

ESD—explanation of significant difference

FS—feasibility study

HRS—hazard ranking system

HSWA—Hazard and Solid Waste Amendments of 1984

LDR—land disposal restrictions

MCL—maximum contaminant level

MCLG—maximum contaminant level goal

NCP—national priorities list

O&M—operation and maintenance

PA—preliminary assessment

PRPs—potentially responsible parties

RCRA—Resource Conservation and Recovery Act

RD/RA—remedial design/remedial action

RI—remedial investigation

RI/FS—remedial investigation/feasibility study

ROD—record of decision

SARA—Superfund Amendments and Reauthorization Act of 1986

SDWA—Safe Drinking Water Act

SI—site investigation

SMOA—Superfund memorandum of agreement

TAG—technical assistance grant

TBC—to be considered

WQC—water quality criteria

[20 ELR 10225]

DATELINE: Washington, D.C. February 2, 1990. EPA Administrator William K. Reilly today signed the long-awaited rule to put into place a revised structure for the operation of EPA's Superfund program for cleaning up hazardous waste sites.

While this is not the type of sensational headline to grab the attention of the average reader, it is big news to those who are potentially responsible for, who regulate, or who live near Superfund sites.¹ The lack of a catchy headline is due in part to the fact that although the rule has been long-awaited (and court-ordered), its general content has been known or surmised for some time. The 1990 national contingency plan (NCP)² implements requirements in the Superfund Amendments and Reauthorization Act of 1986 (SARA),³ and thus many aspects of the rule were pre-ordained. Further, the final rule is not dramatically different from the 1988 proposed NCP, which the Environmental Protection Agency (EPA) has been using as guidance since its publication.⁴ Thus, to a large degree, the process for achieving Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)⁵ remedies under the final rule should not be very different from the process that has been followed for the last year or two.

At the same time, the rule contains many highly significant changes and formalizes what were only proposed positions on how EPA will run the Superfund program. The onerous length of the NCP (the rule and preamble covered 978 double-spaced pages prior to its condensed 200 pages in the Federal Register) is due to the need to cover the many issues raised by SARA, plus EPA's desire to revise the program to reflect the experience of the first decade of Superfund.⁶

The most notable changes from the 1988 proposal include the following: a more flexible standard against which private cleanup actions will be measured for determing "consistency with the NCP" for cost recovery purposes; a commitment for CERCLA cleanups to generally attain maximum contaminant level goals (MCLGs), where the MCLGs are above zero; a more limited risk range for cleanups involving carcinogenic constituents; and a presumption that variances under the Resource Conservation and Recovery Act (RCRA)⁷ are appropriate for the treatment, prior to land disposal, of soils at CERCLA sites that are contaminated with restricted hazardouswastes.

The final rule also takes steps to provide greater structure to the CERCLA process, and thereby to promote consistency of process and result in remedy selection. This is accomplished through an organization of the nine remedy selection criteria into three functional categories, statements concerning the types of remedies that are "expected" to result from the process, and the placement of increased emphasis on protecting health and the environment through the use of treatment at sites. Significant revisions have also been made in the process of defining how CERCLA actions are to comply with the applicable or relevant and appropriate requirements (ARARs) of other laws, in the opportunities afforded for public participation (e.g., longer public comment periods, community interviews, and an administrative record process), and in the increased role of states as partners to EPA throughout the response action process.

However, despite increases in detail and structure, the revised NCP remains a highly discretionary document, under which decisionmakers have the flexibility to balance relevant factors and to design remedies to meet the unique needs of specific sites. Accordingly, many of the changes in the final rule may go further toward achieving "consistency in process" rather than "consistency in result."

This Article discusses the major changes from the 1988 proposed NCP and other significant issues in the final rule. However, to provide a clear context for the revisions, the Article first provides background on Superfund and the NCP, a summary of the major sections of the NCP, and a "road map" through the hazardous site response section of the NCP.

Background

Superfund

In 1980, Congress enacted CERCLA to provide authority for the cleanup of serious threats to public health and the environment resulting from releases of hazardous substances, pollutants, and contaminants into the environment.⁸ CERCLA § 104⁹ empowers EPA¹⁰ to take response [20 ELR 10226] measures "consistent with the national contingency plan" to address such threats through direct funding under the Superfund (the Fund). EPA also has the authority, independent of Fund-financed response actions, to issue orders or seek judicial relief under CERCLA § 106¹¹ to require the abatement of releases that may be an imminent and substantial endangerment to public health, welfare, or the environment.

EPA response actions may consist of either "removal" or "remedial" actions.¹² Removal actions are generally immediate or interim measures taken to assess, evaluate, minimize, or mitigate danger to the public health or the environment.¹³ In addition to including the actual removal of hazardous substance wastes, a removal action may consist of providing a temporary alternative water supply, building a fence, or conducting an investigation under § 104(b) (including a remedial investigation (RI)¹⁴). A remedial action is an action consistent with a long-term or "permanent" remedy at a site, such as the excavation or destruction of hazardous substances, or provision of a permanent alternative water supply.¹⁵ The decision as to whether an action is a removal or a remedial action is not always obvious, because the definitions overlap to a significant degree. Removal and remedial actions must, "to the greatest extent possible, be in accordance with the provisions of the [NCP]."¹⁶

Where EPA determines that a state, political subdivision thereof, or Indian tribe has the capability to carry out a removal or remedial action under CERCLA § 104 (in accordance with the NCP) and adequate enforcement authority (under state/tribal law), the Agency may enter into a cooperative agreement or contract with the state, subdivision; or tribe to carry out specified actions at CERCLA sites.¹⁷ The governmental entity with primary responsibility for carrying out the response action at a site is termed the "lead agency."¹⁸

The statute imposes liability for the costs of response actions on four classes of "responsible parties" described in CERCLA § 107¹⁹ — past owners and operators of the release site, present site owners/operators, certain generators of the released hazardous substances, and transporters of the hazardous substances. Pursuant to § 107(a)(4)(A),²⁰ the United States, states, and Indian tribes may recover all costs of removal or remedial action incurred in a manner "not inconsistent with the [NCP]." Similarly, "other necessary costs of response incurred by any other person consistent with the [NCP]" may be recovered from the four categories of liable parties.²¹ The courts have generally found that liability under CERCLA is joint and several (if harm is indivisible).²²

In addition to this basic structure, Congress added a substantial number of requirements and directions in SARA. For instance, new CERCLA § 121 sets out requirements for how remedial actions should be selected; a new § 117 provides specific opportunities for public participation in remedy selection; and subsections (h), (j), and (k) of Section 113 have been added concerning the timing and scope of judicial review and the requirement for an administrative record for all response actions.

The NCP

As noted above, many of CERCLA's requirements are tied to "compliance" or "consistency" with the NCP. The NCP has been the blueprint for governmental response actions since 1968, when it focused almost exclusively on responses to oil spills. With the enactment of CERCLA in 1980, Congress prescribed a greatly expanded role for the NCP, extending its applicability to releases of hazardous substances, pollutants, and contaminants.²³ The NCP has been revised several times, with the last major revision occurring in November 1985.²⁴

With the passage of SARA in October 1986, EPA set about drafting revisions to the NCP.SARA § 105(b)²⁵ specifically required EPA to revise the NCP "to reflect the requirements" of SARA, and specifically to provide procedures and standards for remedial actions "which are consistent with the [SARA amendments] relating to the selection of remedial actions." The following are the major SARA requirements relating to remedy selection that the NCP was intended to incorporate:

* protect human health and the environment;²⁶

* comply with ARARs under federal environmental or state environmental or facility siting laws (or justify a waiver);²⁷

* select cost-effective remedies;²⁸

[20 ELR 10227]

* utilize permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable;²⁹

* address the preference for remedies in which treatment that tht permanently and significantly reduces the volume, toxicity, or mobility of hazardous substances, pollutants, and contaminants is a principal element;

* consider the short- and long-term potential for adverse human health effects from exposure in assessing the effectiveness of alternative remedial actions;³⁰

* provide significant opportunities for public participation;³¹ and

* provide for substantial and meaningful state involvement in the initiation and development of remedial actions.³²

These diverse statutory requirements provided a complicated mandate for the Superfund program, due in large part to the inherent tension among some of the SARA requirements. EPA was directed to maximize treatment, yet ensure cost-effective remedies.³³ The Agency was also directed to take into account the preferences of both states and the public before selecting remedies, yet those preferences could lead to a departure from other statutory requirements (e.g., some communities might oppose an incineration alternative due to concerns over air emissions). In short, SARA pushed the Agency in several directions at one time, resulting in some difficulty in prescribing hard rules that should apply at all sites. As discussed in more detail below, EPA attempted to implement the multiple directions in the statute by incorporating a set of nine remedy selection criteria into the final NCP, which are to be applied on a site-specific basis.

The Agency's efforts to achieve consensus on how best to reconcile SARA directives were a major cause of the delay in the promulgation of the rule. In addition, the Agency took the opportunity provided by SARA to completely revise the 1985 NCP, and thus initiated many more changes than may have been contemplated by Congress when it set the statutory deadlines. In effect, the 1985 NCP is largely overhauled (especially the subparts dealing with hazardous substance response). Also, many provisions were added to reflect programmatic experience gained over the 10 years Superfund has been in operation, and other changes were made to clarify the response process and to make the NCP easier to follow. For instance, the sequence in which response activities is discussed was changed to better reflect the order in which they occur. Also, public participation requirements were integrated throughout the rule to be discussed with the activity to which they relate.

Due to these factors, the promulgation of the NCP was repeatedly delayed, and the statutory deadline³⁴ to promulgate a revised NCP by April 17, 1988, was not met. In the autumn of 1988, several environmental groups sued the Agency for failure to meet the statutory deadline, resulting in a timetable for final promulgation, enforceable by the U.S. District Court for the District of Columbia.³⁵ The revisions were proposed in the Federal Register on December 21, 1988,³⁶ and as agreed, the final revisions were delivered to the Federal Register on February 5, 1990, for publication. They appear in the March 8, 1990 issue of the Federal Register.³⁷

Effective Date/Retroactivity

The 1990 revisions took effect on April 9, 1990. The rule will not be applied to actions completed before the effective date, but it will be applied to on-going actions.³⁸

Ninety-Day Study of CERCLA

Several months after the proposal of the NCP in the Federal Register, EPA Administrator Reilly took office and began a 90-day review of the Superfund program.³⁹ This study was designed as an internal agency review, with a focus on the management of the Superfund program and implementation issues; it was not a review of the NCP or of the then-pending NCP rulemaking proposal. Although the two initiatives proceeded on separate tracks, they are generally consistent and do overlap (e.g., both emphasize treatment, public participation, and expedited response).

Overall Framework of the Final NCP

The 10 Subparts

The NCP is broken down into 10 subparts (and an 11th will be proposed). The following four subparts were substantially revised or added by the final rule and are critical to an understanding of the Superfund response process:

Subpart E (subpart F in the 1985 NCP), entitled "Hazardous Substance Response," is the key subpart of the NCP for Superfund responses. It sets out the elements for response to hazardous substance releases and describes the CERCLA process from site discovery through final cleanup. It is within this section that the procedure for remedy selection is discussed.⁴⁰

Subpart F is a new subpart added to explain the role and responsibilities of states in CERCLA actions. CERCLA § 121(f)(1), added by SARA, directed EPA to promulgate regulations to provide for substantial and meaningful state involvement during response actions.⁴¹

Subpart H is a new subpart on participation by other persons in response actions and on the recovery of costs [20 ELR 10228] under CERCLA § 107(a)(4)(B). It consolidates and expands into a separate subpart the discussion of private party actions under CERCLA.⁴²

Subpart I is a new subpart, added to implement the requirement in SARA (CERCLA § 113(k)) for the establishment of an administrative record.⁴³

The remaining subparts relate either to oil discharges (which are generally exempt from response under CERCLA by statute⁴⁴) or to administrative interactions among cooperating federal agencies; they are not discussed in detail in this article:

Subpart A is a general introductory section, although it also includes important definitions.⁴⁵

Subpart B combines, without major change, Subparts B and C from the 1985 NCP and describes the interaction of executive branch agencies in responding to releases of hazardous substances or oil.⁴⁶

Subpart C addresses preparedness activities, federal and regional contingency plans, and planning responsibilities of state and local agencies.⁴⁷

Subpart D sets forth the phases of response to discharges of oil, and is substantially unchanged from the 1985 NCP; however, the subpart may take on increasing importance in light of the recent oil spills in Alaska and elsewhere.⁴⁸

Subpart G designates,and sets out the responsibilities of, federal trustees who may act on behalf of the President to assess and restore damaged natural resources.⁴⁹

Subpart J discusses the use of dispersants for oil spills; it is largely unchanged from Subpart K in the 1985 NCP.⁵⁰

Subpart K has been reserved for a new subpart of regulations concerning federal facilities. EPA intends to propose, as an amendment to the NCP, a subpart that would act as a road map to the NCP requirements that apply to CERCLA response actions at federal facilities and would codify certain provisions of CERCLA § 120 that relate to federal facilities only.

Road Map to the CERCLA Site Response Process (Subpart E)

Site Discovery. The process begins with the discovery of a release by one of several possible mechanisms (e.g., notification requirements under CERCLA § 103(a) or (b) or under other laws, a petition from a citizen,⁵¹ etc.)⁵² In the case of an emergency (e.g., fire, explosion), a removal action will be taken to stabilize the site.

Removal Assessment. In nonemergency situations, the release is evaluated to determine if a removal action is appropriate based on a removal preliminary assessment (PA) and, if appropriate, a removal site inspection (SI).⁵³

Removal Action. Where necessary to protect human health and the environment, the Agency may initiate a removal action to prevent, mitigate, or minimize the threat posed by the release. This may involve removal of surface drums, fencing of the site, the provision of temporary drinking water supplies, etc.⁵⁴ Removals may be emergency actions (taken within hours of discovery), time-critical actions, or non-time-critical actions.⁵⁵

Remedial Site Evaluation. A remedial PA (and SI, where appropriate) is conducted on all sites in the CERCLA Information System database, CERCLIS, to see if the site is a priority for long-term remedial response.⁵⁶ These evaluations involve the collection of data for scoring the site under the hazard ranking system (HRS) model;⁵⁷ sites scoring above the threshold in the HRS⁵⁸ are placed on the national priorities list (NPL)⁵⁹ for further evaluation and possible remedial action.⁶⁰

Remedial Priorities. The Agency evaluates releases for inclusion on the NPL based on the HRS score or one of the other methods for listing outlined in the NCP.⁶¹ The Agency may spend Fund monies for remedial action only at those sites that are on the NPL. ("Fund-financed remedial action" does not include removal action or enforcement action.⁶²)

Remedial Investigation/Feasibilty Study. The Agency will undertake a remedial investigation and feasibility study (RI/FS) at sites that are, or appear to be, priorities for action (i.e., that are on, or are proposed for listing on, the NPL). The RI/FS, like any other investigation conducted pursuant to CERCLA § 104(b), is a removal action under CERCLA § 101(23), despite the word remedial in its name.

During the RI, the nature and extent of the threat posed by the contamination is studied; concurrently, alternative [20 ELR 10229] approaches are developed as part of the FS for responding to and managing the site problem.⁶³

Preliminary Remediation Goal. The first step in developing alternatives during the FS is the establishment of a preliminary goal for the remediation of the site.⁶⁴ This goal is initially based on readily available information, such as a chemical-specific ARAR, or the "point of departure" in the range of acceptable risk.⁶⁵ Alternatives are then developed that are capable of attaining the preliminary remediation goal. (The goal may be modified as additional information is developed).

Screening of Remedial Alternatives. A broad list of alternatives is then reviewed and screened, with the more extreme, impracticable options being eliminated before the detailed analysis of alternatives begins. Alternatives may be eliminated during screening based on effectiveness, implementability, or "grossly excessive" cost.⁶⁶

Analysis of Alternatives Using the Nine Criteria. The Agency then conducts a detailed analysis of the remaining alternatives (usually three-nine, depending on the complexity of the problem). The advantages and disadvantages of the alternatives are studied and compared using the following nine remedy selection criteria:⁶⁷

* overall protection of human health and the environment;

* compliance with (or waiver of) the ARARs of other laws;

* long-term effectiveness and permanence;

* reduction of toxicity, mobility, or volume through treatment;

* short-term effectiveness;

* implementability;

* cost;

* state acceptance; and

* community acceptance.

Selection of Remedy.⁶⁸ Thenine criteria are then used to select the remedy by evaluating them in three functional categories (threshold, balancing, and modifying criteria), in order to reflect the nature and/or timing of their application. The first two criteria — protectiveness and compliance with ARARs — are identified as threshold criteria; only the alternatives that meet those criteria may be carried forward.⁶⁹

Protective, ARAR-compliant alternatives are then "balanced" (i.e., used to evaluate tradeoffs) based on the middle five criteria (and the two modifying criteria, to the extent they are known). The Agency then attempts to select the remedial alternative that "utilizes permanent solutions and treatment . . . to the maximum extent practicable" and is "cost-effective" based on a comparison of the appropriate balancing or modifying criteria.⁷⁰ Alternatives are judged cost-effective if their costs are "in proportion" to their overall effectiveness; an alternative is found to achieve the maximum permanence and treatment practicable based on a balancing of the seven nonthreshold criteria, with an emphasis on the factors of "long-term effectiveness and permanence" and "reduction in mobility, toxicity or volume through treatment."⁷¹

EPA and the state then discuss the remedial options and issue a proposed plan, which sets out the lead agency's recommended alternative.⁷² Consistent with CERCLA § 117, the public is afforded an opportunity to review and comment on the alternatives studied in the FS and the proposed plan.⁷³ After review of and response to public comments, and formal consideration of the two modifying criteria (state and community acceptance), the final remedy selection is documented in a record of decision (ROD).⁷⁴

Remedial Design/Remedial Action and Operation and Maintenance. The lead agency then sets about designing, constructing, and implementing the selected remedy.⁷⁵ Often, the remedial action plan set out in the ROD will need to be modified in light of information developed during the design phase (e.g., the Agency may learn that more soil is contaminated and needs to excavated). If the remedial action to be taken differs "significantly" from the remedy selected in the ROD with respect to scope, performance, or cost, the lead agency will issue an explanation of significant differences (ESD).⁷⁶ If the action to be taken "fundamentally alters" the basic features of the remedy selected in the ROD, the lead agency will propose and take comment on a ROD amendment.⁷⁷

Once the remedy is operational and functional (or later, for groundwater restoration remedies⁷⁸), the state undertakes responsibility for funding and carrying out operation and maintenance (O&M) of the remedy.⁷⁹

Deletion From the NPL, Five-Year Review. Once EPA has determined that no further response action is appropriate, the site may be proposed for deletion, or recategorized on the NPL,⁸⁰ even where O&M is continuing. Sites at which hazardous substances remain above levels that allow for unlimited use and unrestricted exposure must be reviewed at least every five years after the initiation of the remedy (not merely after completion), consistent with CERCLA § 121(c).⁸¹ As discussed in more detail below, the NCP discusses EPA's general policy not to delete a site at which hazardous substances remain until at least one five-year review has been performed after completion of the remedial action.

[20 ELR 10230]

Major Issues/Changes in the 1990 NCP

ARARs Issues

There were several major changes and statements in the final NCP revisions relating to ARARs, the "applicable" or "relevant and appropriate" requirements of other environmental laws. How CERCLA actions comply with ARARs often determines the cleanup standard at a site or certain parameters that the remedial approach must fulfill. Thus, a discussion of major ARARs issues is an important starting point in a review of the final NCP.

* Background. As defined in the final rule, "applicable" requirements are cleanup standards, standards of control, and other substantive environmental protection requirements, criteria, or limitations promulgated under federal environmental or state environmental or facility siting laws that specifically address a hazardous substance, pollutant, contaminant, remedial action, location, or other circumstance found at a CERCLA site.⁸²

A "relevant and appropriate" requirement is a promulgated standard that, while not applicable to the substance, location, or action, addresses problems or situations sufficiently similar to those encountered at a CERCLA site that its use is well suited to the particular site. One example is where a federal requirement has not been adopted by a state authorized to run the federal program. Such requirement may not be applicable in the state, but it could nevertheless be relevant and appropriate to management of the CERCLA waste at issue. In another example, RCRA waste management requirements may be relevant and appropriate to a CERCLA waste that is similar to a RCRA-listed hazardous waste but is not specifically listed in the RCRA regulations⁸³ (and thus to which RCRA would not independently "apply").

The concept of requiring remedies to attain relevant and appropriate standards (i.e., standards that do not independently apply as a matter of law) is unique to CERCLA and has generated controversy and confusion. (Indeed, it is somewhat counter-intuitive to be required to comply with requirements that do not apply as a matter of law.) To add some consistency to the process, the final rule offers several factors to consider in determining if a requirement is relevant and appropriate under the circumstances of the release (both findings must be made).⁸⁴ However, the notion of what standards are appropriate is, almost by definition, a matter of judgment, subject to case-by-case variations. Thus, the Agency retains considerable discretion in making the ultimate decision of what standards a CERCLA remedy should attain based on potential relevance and appropriateness. (Of course, the decision that a remedy must attain a certain standard may be questioned during the comment period of the ROD.) This discretion is even broader in that the Agency may decide that only certain portions of a requirement are relevant and appropriate.⁸⁵ The ability to find that a nonapplicable requirement is not appropriate has limited the instances in which statutory waivers⁸⁶ are necessary for relevant and appropriate requirements.

There are four conditions that must be met for a requirement to be considered a potential ARAR, based either on applicability or relevance and appropriateness. First, the requirement must be promulgated (i.e., "of general applicability and enforceable").⁸⁷ Second, it must be a substantive — rather than administrative — requirement; CERCLA actions are required to meet only the procedures set out in the NCP (additional procedures of other laws are met where appropriate, as a matter of policy).⁸⁸ Third, it must be a requirement of an "environmental" law, as provided in CERCLA § 121(d)(2)(A)(i) and (ii);⁸⁹ the requirements and procedures of nonenvironmental laws are simply complied with to the extent they apply — they are not considered as part of the ARARs review process under CERCLA.⁹⁰ Fourth, ARARs are limited to on-site actions, consistent with CERCLA § 121(d)(2)(A);⁹¹ where EPA sends wastes off site, that waste transfer must comply with the substantive and administrative requirements of applicable law (there would be no relevant and appropriate determination, and no waiver option).⁹²

Only those requirements that pertain to a specific action are ARARs for that action.⁹³ The clearest case for the application of this principle is where contaminated soil is being removed from the surface at a site as part of a removal action or a first operable unit ROD; groundwater cleanup standards for the contaminants found in the soil would not pertain to the surface cleanup action, and thus would not be ARARs for that action.

ARARs may be chemical-specific (e.g., an established level for a specific chemical in groundwater), action-specific (e.g., a land disposal restriction for RCRA hazardous wastes), or location-specific (e.g., a restriction on actions that adversely affect wetlands). Thus, the concept is much broader than that of a specific cleanup level for a site.

The idea of applying the ARARs of other federal laws to CERCLA actions was first introduced by the 1985 [20 ELR 10231] NCP.⁹⁴ SARA generally incorporated the idea into CERCLA § 121(d)(2) for remedial actions, and added the requirement to meet certain ARARs of state law, which the final rule picks up.⁹⁵ Although not required by SARA, the final NCP also continues the 1985 policy of requiring removal actions to comply with ARARs "to the extent practicable."⁹⁶

* Maximum Contaminant Levels and Maximum Contaminant Level Goals as ARARs. In the preamble to the proposed NCP, the Agency had stated that the ARAR for the cleanup of groundwater that was an actual or potential source of drinking water would generally be the maximum contaminant level (MCL).⁹⁷ This approach was based largely on the view that MCLs, as the enforceable drinking water standards under the Safe Drinking Water Act (SDWA), are relevant and appropriate to the cleanup of CERCLA sites.⁹⁸ The option of generally requiring cleanup to health-based maximum contaminant level goals (MCLGs) was rejected, based on a determination that MCLs are protective of human health, and that it would not be appropriate to require groundwater at CERCLA sites to be cleaner than the levels required for the nation's water supply. Further, MCLGs are, by definition, unenforceable, aspirational goals under the SDWA.⁹⁹ According to the proposal, MCLGs would have been attained only in unusual cases (e.g., cases involving multiple contaminants or pathways where the attainment of enforceable MCLs would result in a risk greater than the acceptable risk range).¹⁰⁰

A number of commenters criticized this approach, focusing on the direction in the statute to attain MCLGs "where relevant and appropriate." These commenters argued that EPA should attain even zero-level MCLGs because MCLGs are health-based standards — not standards based on what is feasible for drinking water systems (the case for MCLs) — and thus are the appropriate standard for CERCLA cleanups. They suggested that where such levels could not be physically attained, waivers should be used.

Although EPA continues to believe that the language in the statute gives the Agency considerable discretion to decide whether it is "appropriate" to apply standards more stringent than drinking water standards to groundwater, the Agency reevaluated the MCL/MCLG question during the comment review period and sought to give greater deference to the words of the statute while not requiring attainment of standards that would be generically inappropriate.

The preamble to the final rule notes, as a threshold matter, that in addition to giving the Agency discretion as to when compliance with MCLGs might be appropriate, the first sentence in CERCLA § 121(d)(2) sets out a somewhat competing mandate: It requires on-site CERCLA remedies to attain promulgated standards or levels of control established under the SDWA (i.e., MCLs), where they are applicable or relevant and appropriate.¹⁰¹

The final NCP deals with the potential applicability of both MCLs and MCLGs by providing that MCLGs that are greater than zero shall be attained where "relevant and appropriate under the circumstance of the release." (Thus, it is expected that MCLG's above zero will generally be the cleanup level for actual and potential drinking water sources.) However, where the MCLG is set at zero (as it is for carcinogens), the relevant MCL would be used as the cleanup standard, where relevant and appropriate.¹⁰²

This revised approach is believed to better reflect the statutory intent of CERCLA § 121, while also recognizing the practical difficulties inherent in attaining MCLGs set at zero (indeed, the Agency concluded that it is not scientifically possible to detect whether a level of zero contamination has been attained). The NCP explains that the use of an unattainable, unmeasurably zero level is not appropriate in setting actual cleanup levels to be attained under Superfund.¹⁰³ Further, CERCLA requires protective remedies, not the complete elimination of risk.¹⁰³

The approach adopted in the final rule also recognizes the realities of present groundwater treatment technology. While some commenters may believe that zero levels are attainable, or that EPA should require cleanup down to the levels of detection, the empirical evidence suggests that such results are far from practical. Experience with the Superfund program has shown that groundwater treatment is very difficult.¹⁰⁴ While groundwater remediation is proving effective in containing plumes to prevent further migration and in achieving significant mass reduction of chemicals, it may not be possible in many cases to achieve MCLs throughout the aquifers, not to mention levels of zero.

The practical impact of the change from "generally MCLs" to "generally non-zero MCLGs" is small at present, because for noncarcinogens (the body of chemicals with MCLGs above zero), the MCLs are set at the same level as the corresponding MCLGs. However, in the future, the Agency may consider setting MCLGs that are more stringent than MCLs for certain noncarcinogens. Although such an action would have no legal effect on compliance under the SDWA, it would have a potential impact on CERCLA remedies; in effect, groundwater at some [20 ELR 10232] CERCLA sites may be driven to be cleaner than U.S. drinking water. Of course, where a more stringent MCLG level cannot be achieved, site-specific waivers would likely be used at CERCLA sites.

It is important to note that the preamble to the final rule strongly emphasizes the importance of MCLs/nonzero MCLGs as the primary standards for the cleanup of groundwater at CERCLA sites. Alternate concentration limits (ACLs)¹⁰⁵ are discussed as being appropriate only where it is not practicable to meet the MCL/nonzero MCLG;¹⁰⁶ similarly, water quality criteria (WQC)¹⁰⁷ are discussed as being generally appropriate only in limited cases involving surface water.¹⁰⁸

* Freezing ARARs. A frequent ARARs issue is whether a requirement that is made part of a selected remedy (or that drives the choice of that remedy) must be revised when a new requirement is promulgated. In the preamble to the proposed NCP, EPA took the position that requirements promulgated after the initiation of the remedial action will not be attained unless necessary to ensure protectiveness.¹⁰⁹ This was intended to avoid the requirement to restart work already begun.

In the final rule, the Agency reconsidered and expanded this interpretation by providing that requirements promulgated or modified after the signing of the ROD — an earlier point in the process — must be attained (or waived) only when determined to be applicable or relevant and appropriate and necessary to ensure protectiveness.¹¹⁰ That is to say, ARARs generally freeze at the time of ROD signature.

The Agency explained that this approach is both necessary and appropriate under the statute. A contrary requirement, to reexamine potential ARARs throughout the design and implementation phases of CERCLA remedies, would threaten to subject remedial actions to constant interruption and reevaluation, significantly disrupting the cleanup process. This would be inconsistent with Congress' intent that EPA conduct cleanups expeditiously¹¹¹ and would prevent the Agency from achieving finality in the remedy selection process.

This ARARs freezing policy will not compromise protection of human health and the environment. EPA will continue to review CERCLA remedies where hazardous substances are left on site at least every five years to ensure that the remedy remains protective.¹¹² Further, the Agency will evaluate standards promulgated after ROD signature, as appropriate, to ensure that the selected remedy is adequately protective.

The determination of whether a remedy remains protective is a complicated issue, and guidance is expected on the matter in the near future. However, it is likely that a five-year review of protectiveness would, at a minimum, include an assessment of whether the measures put in place by the ROD continue to provide effective management, within acceptable risk levels, of the hazardous substances remaining on site. Obviously, if monitoring wells showed new contamination, additional measures might be necessary. The more difficult issue during the five-year review — or earlier, if appropriate — will be whether the protectiveness of a remedy is called into question by the promulgation of a new standard since the time of ROD signature.

For example, a substance that had been considered nonhazardous at the time of remedy selection might subsequently be listed as a hazardous waste under RCRA. If the ROD had allowed that substance to be left in place without treatment or engineering controls, the newly applicable RCRA requirements might well result in a finding that the remedy is no longer protective and that additional response action (preceded by a ROD amendment or ESD) is required. By contrast, if the newly regulated substance had been contained using engineering controls along with other hazardous substances, the additional information concerning the substance's RCRA status might not result in a finding that the remedy is no longer protective. (Such a finding might need to reflect a reexamination of the risk assessment for the site in conjunction with the new information; if the risk posed by the site continued to be within acceptable levels, no modification of the remedy would be necessary.)

As for new remedial decisions made after ROD signature, the freezing ARARs policy applies as follows: Components of a remedy not described in the ROD must attain (or waive) requirements that are identified as applicable or relevant and appropriate at the time the ROD amendment or explanation of significant differences (ESD) describing the component is signed.¹¹³

* Definition of Placement: Application of RCRA Land Disposal Restrictions. One of the most controversial ARARs issues is the debate over how RCRA applies to CERCLA actions; the preambles to both the proposed and final NCP spend a significant amount of time on the question.¹¹⁴ Perhaps the most contentious issue within that debate is how to apply the land disposal restrictions (LDR) that were added to RCRA § 3004¹¹⁵ by the Hazardous and Solid Waste Amendments of 1984 (HSWA).¹¹⁶

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According to RCRA § 3004(k), "land disposal" is defined for the purposes of § 3004 and LDR as including the "placement" of a specified hazardous waste in a landfill, surface impoundment, waste pile, etc.¹¹⁷ Thus, where a specified waste has been "placed" in a hazardous waste management unit, land disposal has occurred and the LDR requirements are triggered. The LDR requirements ban the disposal of most hazardous wastes after a given point in time, unless EPA promulgates treatment standards for those wastes. The Agency has promulgated (or plans to promulgate) regulations for all categories of LDR wastes,¹¹⁸ and it has in general required treatment using the best demonstrated available technology (BDAT) prior to lawful land disposal. Although Congress appears to have contemplated that LDR standards would apply to wastes from CERCLA cleanups (even if not immediately),¹¹⁹ many in the Agency and in the regulated community have found the standards difficult to implement in the context of CERCLA cleanup actions.

A number of parties have argued that BDAT standards were designed for specific chemicals or waste streams, and that such standards are poorly suited to CERCLA cleanup actions that typically involve complex mixtures of chemicals. Further, contamination at CERCLA sites generally involves contaminated soils that are difficult and costly to treat (especially by incineration, a common BDAT technology). Indeed, many inside and outside the Agency suggest that applying the LDR requirement to CERCLA cleanups has the perverse effect of encouraging no treatment at sites because it results in a choice of extremes: either treat the material to expensive BDAT levels (which in the case of combustion technologies results in large volumes of ash remaining for disposal) or leave the material in place, thereby avoiding LDR. Interim options, such as treating the contaminated soil to safe levels that are above BDAT and then placing it back in the unit of origin, would seem to be unavailable. The preamble to the proposed rule set out EPA's interpretation that LDR-restricted waste may not be placed in a unit without treatment to BDAT, even if the waste has been partially treated and is being re-placed in the unit.¹²⁰

In response to the numerous comments on this point, the Agency issued a supplemental notice in October 1989, requesting comment on a possible reinterpretation of RCRA § 3004(k) to the effect that if soil were excavated, treated, and "re-placed" in the unit of origin, that unit would be improved and no new "placement" of waste would be said to have occurred (and the LDR requirements would not be triggered).¹²¹

The preamble to the final NCP retains the 1988 interpretation that placing waste back into the unit of origin constitutes "placement" for the purposes of RCRA § 3004 (and specifically, LDR), unless the waste was treated to BDAT (or to an approved variance level).¹²² However, the preamble discussion recognizes the practical problem posed by the applicability of BDAT to contaminated soil at cleanup sites and sets out a series of actions to address this issue.

First, the Agency pledges to promulgate specific BDAT standards that would be appropriate for contaminated soil and debris (the existing BDAT standards are generally developed with defined waste streams in mind). Second, to give more immediate relief, the preamble sets out the Agency's view that the BDAT standards established for certain wastestreams are generally inappropriate for contaminated soil and debris, and thus decisionmakers can "presume" that a RCRA treatability variance is available for such materials.¹²³ Because on-site CERCLA actions are not subject to permitting or administrative determination requirements of other laws,¹²⁴ a variance level may be set at CERCLA sites by the regional administrator as part of the ROD process. However, the variance level will still need to be justified in the ROD, and the presumption that a variance is appropriate may be rebutted on a site-specific basis, such as where the soil is saturated with high levels of combustible organic chemicals (as discussed in the preamble to the final rule).¹²⁵

Finally, EPA is not taking final action at this time on the supplemental proposal to reinterpret "placement."¹²⁶

* Point of Compliance With ARARs in Groundwater. In discussing ARARs, it is critical to define the physical point at which protective levels must be achieved. This is especially problematic in groundwater where no fixed contaminant boundaries exist. For instance, should compliance be required at the vertical line extending from the site owner's property boundary, at the existing boundary of the contamination itself, or at all points of contamination? In the preamble to the proposed rule, EPA stated that its general policy will be to clean up contaminated groundwater (that is being used, or is reasonably likely to be used, as drinking water) throughout the contaminated plume, or where waste is left in place on the surface, up to and beyond the edge of the waste unit boundary.¹²⁷

The preamble to the final rule reaffirms this general policy of achieving an area of attainment but also discusses the possibility of setting alternative points of compliance in certain limited cases.¹²⁸ First, where a plume of groundwater contamination is caused by releases from several distinct sources that are in close geographical proximity, the preamble contemplates that the problem may appropriately [20 ELR 10234] be addressed as a whole rather than source by source. Thus, the point of compliance could be drawn to encompass the proximate sources, and the contaminated plume stemming from these sources could be pulled back to that line. This option is based on an assessment that it would be impracticable to, in effect, divide a contaminant plume such that it could be drawn back to sources at several different but nearby points. Drawing the plume back to the line surrounding those sources would make more practical sense, without a loss in protection.

Second, the preamble notes that where there is little likelihood of exposure due to the remoteness of the site, it may also be appropriate to consider an alternate point of compliance, provided that contamination in the aquifer is controlled from further migration.¹²⁹ The Agency did not give guidance on when a site is sufficiently "remote" to justify such an alternate point of compliance, but the limitation in the preamble to remote areas where there is little chance of exposure suggests that this possibility will be rarely used.

Any use of an alternate point of compliance would need to be justified on a case-by-case basis, considering the statutory requirements for remedies to be protective and to prefer treatment technologies, and the general goal of the statute to clean up — rather than to maintain the status quo — at contaminated sites.¹³⁰

* TBCs (criteria or guidance "to be considered"). The issue of whether government policy statements or guidance documents are ARARs has frequently arisen at CERCLA sites. To address this point, the Agency developed the concept of "TBCs," nonbinding criteria, guidance, advisories, and the like that — unlike ARARs — are not required to be attained. TBCs may, however, contain information that may be helpful in the establishment of a cleanup standard.

The proposed rule suggested that TBCs, as well as ARARs, must be identified in the early stages of remedy selection.¹³¹ A number of commenters were concerned that the rule, as proposed, would require the time-consuming identification of an undefined array of advisories and policy statements. In response, the final rule makes clear that the use and identification of TBCs are discretionary, not mandatory.¹³²

The significance of this change is that the identification and use of TBCs are not routinely required during the remedial development process. At the same time, the Agency may still use TBCs to assist in determining what is protective or to otherwise help in designing Superfund remedies, where appropriate, as a complement to ARARs. For instance, where there is no binding requirement as to the safe level of a contaminant, but a health advisory or guidance document exists on the point, the Agency may refer to that document to support its decision on a cleanup standard. Such a decision would have to be justified on a site-specific basis, and the public (and potentially responsible parties (PRPs)) would have an opportunity during the comment period to comment on the appropriateness of using the levels in that TBC.

* Substantive, Not Administrative, Requirements. The Agency has consistently interpreted the concept of ARARs as including only the substantive, not administrative, requirements of other laws.¹³³ The preamble to the final rule continues this interpretation and includes the concept in the definitions of "applicable" and "relevant and appropriate" requirements.¹³⁴ This interpretation was historically based on the position that CERCLA actions must be allowed to proceed expeditiously and that compliance with administrative and procedural provisions would slow down CERCLA actions.¹³⁵ Moreover, the NCP sets out a detailed set of procedures of its own that CERCLA actions must follow; these render unnecessary the procedures of other environmental programs.

In enacting SARA, Congress codified elements of this policy. CERCLA § 121(e)(1) expressly relieves EPA of any permitting requirement for on-site CERCLA actions. In addition, Congress crafted a new § 121(d)(2), which requires CERCLA actions to attain the "standards" and "levels of control" set by other environmental laws. This section too supports the position that CERCLA actions need not follow the procedures of other laws. The substantive/administrative distinction is also consistent with the Agency's view that the provisions of other environmental laws were impliedly repealed or preempted by CERCLA for on-site CERCLA actions.¹³⁶

Although administrative provisions, such as those calling for consultation with other agencies or the reporting of certain information, are not required, it is EPA policy to generally engage in such consultation and provide needed information (e.g., discharge monitoring reports).¹³⁷

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* Compliance With ARARs During Response Actions. The final rule requires CERCLA remedies to comply with ARARs during the design and implementation of the remedial action, as well as at its conclusion.¹³⁸ This point was the subject of significant comment, as several noted that the statute merely requires CERCLA remedies to attain ARARs "at the completion of the remedial action."¹³⁹ However, as the preamble to the final rule explains, compliance with ARARs during the remedial action makes sense for many of the same reasons that compliance with ARARs makes sense at completion: The requirements of other laws help define how the activity can be carried out in a manner that is protective of health and the environment.¹⁴⁰ For instance, if the conduct of a remedy involves the storage of hazardous waste pending construction of a final treatment unit, it would be short-sighted at best and irresponsible at worst to be concerned with applicable waste management standards only at the end of the project. Waste managed during the remedial action should also meet the substantive standards of other applicable or relevant and appropriate laws.

Similarly, EPA is continuing its policy of attaining ARARs during removal actions¹⁴¹ (to the extent practicable, as discussed below in the section on Removal ARARs). This policy would apply to fieldwork conducted as part of an RI/FS, which comes within the definition of a removal action.¹⁴² EPA has issued extensive guidance on how it will comply with the ARARs of the resource protection statutes — such as the Endangered Species Act¹⁴³ and the National Historic Preservation Act¹⁴⁴ — during the investigative and cleanup phases of CERCLA response.¹⁴⁵

The policy of attaining ARARs during remedial and removal actions does not apply to chemical-specific ARARs, such as soil cleanup levels, which can only be met at the completion of the action.¹⁴⁶ In addition, a statutory waiver is available for interim actions that will attain the ARAR upon completion of the total response.¹⁴⁷

* Removal Actions — Compliance With ARARs. Most of the foregoing discussion has focused on compliance with ARARs for CERCLA remedial actions; the rules for short-term actions, "removals," are different based on both the statute and long-standing practice. The 1985 NCP provided that because of their time-sensitive nature, removals need meet ARARs only to the "greatest extent practicable, considering the exigencies of the situation."¹⁴⁸ In SARA, the ARARs concept was applied only to remedial actions.¹⁴⁹ To some, the omission represented an implied finding that removals need not meet the requirements of other laws (although it could also be argued that the language of SARA impliedly affirmed the existing requirement that removals should meet ARARs to the extent practicable).

In the final rule, the Agency decided that it was sound policy for removal actions to attain ARARs "to the extent practicable," while at the same time recognizing that ARARs should not interfere with the mission of removals to quickly respond to and stabilize dangerous sites.¹⁵⁰ The preamble to the final rule explains in greater detail how and when removal actions should meet the requirements of other laws and still fulfill their statutory mission.¹⁵¹

First, the preamble makes clear that only requirements that pertain to the specific response actions being conducted are potential ARARs. For instance, if a removal action consisted of removing leaking drums, requirements relating to potential groundwater cleanup would not be ARAR for that removal action.

Second, once requirements are said to be potential ARARs for a removal, they must be complied with "to the extent practicable considering the exigencies of the situation."¹⁵² The preamble attempts to give greater precision to this phrase. The notion of practicability is based on two factors: the urgency of the situation and the scope of the removal action.¹⁵³ The urgency factor is rather obvious — where the time-sensitive nature of the removal is such that compliance with (or even identification of) all potential ARARs is not possible, those requirements need not be met. This will often be the case where the Agency responds to fires, explosions, or serious spills.

The "scope of the removal action" factor is more complex. It reflects the narrow purpose of removals to mitigate or minimize harm, rather than to accomplish a permanent remedy. For example, where contaminated soil is discovered near a school yard, a removal action may be taken to fence off the contaminated area, remove the top two feet of contaminated soil, and cover the area with clean topsoil. This action would address the immediate problem of preventing exposure of the school children to the contamination. However, the removal would not attempt to address all contaminated soil on site (i.e., the contamination below two feet), and thus might arguably not meet a soil cleanup level for that contaminant.

One option for addressing this problem might have been to require the removal action to continue excavation until the soil cleanup ARAR was met. However, such an approach, if applied broadly, could substantially increase the cost and time required to perform the removal action, thereby exceeding the action's intended scope.¹⁵⁴ In effect, [20 ELR 10236] a policy of requiring removals to attain ultimate cleanup standards would convert removals into remedial actions, without the additional procedures required in the NCP.¹⁵⁵ It would also limit the number of removals that can be performed and would greatly reduce the ability of removals to respond quickly to site problems. To date, removals have been one part of the Superfund program that has been an unqualified success, due in large part to the ability of the program to function quickly.

An alternative approach, adopted by the Agency, is to recognize that a final cleanup standard would not be practicable to meet, given the limited scope and duration of a removal. Of course, the permanent remedy of attaining soil cleanup standards may be met by subsequent remedial actions carried out at the site.

The preamble also notes that the six statutory waivers¹⁵⁶ available for CERCLA remedial actions may also be used to waive ARARs during removals.¹⁵⁷

* State ARARs Issues. The SARA amendments added the requirement that CERCLA remedial actions must comply with applicable or relevant and appropriate requirements of state environmental and facility siting laws (as well as federal environmental laws) where those requirements are promulgated, identified in a timely manner, and more stringent than those under federal law.¹⁵⁸ The final NCP extends this concept of attaining more stringent state ARARs to removal actions as a policy matter. (EPA has further stated, as a matter of policy, that promulgated Indian tribal requirements may be potential ARARs.¹⁵⁹)

From the beginning, there have been problems in the identification of ARARs from the support agency (most often, the states). Some states have provided mere "laundry lists" of state laws and/or regulations, without specific discussion of how, if at all, they relate to the site. This has resulted in delays and wasted resources. To avoid this problem in the future, the preamble to the final NCP directs states to provide "a list of requirements with specific citations to the section of law identified as a potential ARAR, and a brief explanation of why that requirement is considered to be applicable or relevant and appropriate to the site."¹⁶⁰ In addition, the final rule requires the identification of state ARARs no later than the detailed analysis stage of the FS.¹⁶¹ These new requirements may force agencies to make key decisions on cleanup standards earlier in the process.

One of the most difficult state ARARs issues is the determination of whether legislated goals (e.g., nondegradation standards under state law) constitute substantive requirements such that they should be considered ARARs. State laws setting general goals may be considered substantive ARARs if they are promulgated and enforceable, and "directive in intent," either on their face or through regulations.¹⁶² For example, if a state statute prohibits the degradation of surface water below a defined level, it is directive in nature and may be an ARAR. If a state law sets forth an anti-degradation goal without regulations or direction as to how to achieve it, the Agency must decide whether the goal constitutes an ARAR (e.g., is it enforceable), and then may exercise flexibility in determining how to comply with the goal. In any case, even if a remedial response is found not to comply with a state anti-degradation ARAR during the response, an interim action waiver of the state standard may be appropriate if the ARAR will be satisfied upon completion of the total remedy for the site.¹⁶³

Risk Assessment and Risk Range

The NCP contemplates the use of risk assessments as an integral part of the process for developing remedial alternatives that are protective of human health and the environment.

Risk analysis begins during the early stages of the RI, when a "baseline risk assessment" is performed to evaluate the risk posed by a site in the absence of any remedial action.¹⁶⁴ It is based on a comparison with this no-action risk level that the lead agency will target levels of risk that will be adequately protective of human health for a particular site. The baseline risk assessment also helps to provide justification for performing remedial action at the site.

Concurrently, the lead agency would begin to set a "preliminary remediation goal" as part of the FS. The preliminary remediation goal is an initial statement of the desired endpoint concentration or risk level, and alternatives are developed that are capable of meeting that goal.¹⁶⁶ It is based on readily available information, such as chemical-specific ARARs (e.g., a drinking water standard), concentrations associated with the reference doses or cancer potency factors, or the point of departure for the Agency's acceptable risk range, discussed below.¹⁶⁷ The preliminary remediation goal is modified during the site evaluation process as site-specific data (including information from the baseline risk assessment or newly identified ARARs) become available.¹⁶⁸

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Where there is only one contaminant of concern and a chemical-specific ARAR (e.g., a drinking water standard) exists for that contaminant, the remediation goal will be set at the ARAR level, and achievement of that standard will generally be deemed to be protective.¹⁶⁹ However, an ARAR may not be available for the contaminant of concern (or for all of several contaminants at a site), or compliance with available ARARs may not be sufficiently protective due to additive or synergistic effects from multiple pathways of exposure or multiple contaminants.¹⁷⁰ Thus, risk assessments will often be necessary to determine the appropriate cleanup goal. (Compliance with the available ARARs would, of course, still be required, consistent with NCP § 300.430(f)(1)(i)(A).)

Where ARARs are not available or are not sufficiently protective, EPA sets remediation goals for noncarcinogens such that the cumulative risks from exposure will not result in adverse effects to human populations (including sensitive subgroups such as children) during a lifetime or part of a lifetime, incorporating an adequate margin of safety.¹⁷¹ The risks associated with potential alternatives are assessed based on the "reasonable maximum exposure scenario," which is designed to include all exposures that can be reasonably expected to occur.¹⁷² The analysis considers exposures under both current use conditions as well as potential future conditions,¹⁷³ but does not focus on worst-case exposure assumptions.¹⁷⁴

Where environmental effects are observed, EPAsets remediation goals based on environmental ARARs (where they exist) and levels based on a site-specific assessment of what is protective of the environment. For carcinogens, the establishment of an acceptable level of risk in cases where ARARs do not exist (or are not sufficiently protective) is especially sensitive, because such contaminants arguably pose a risk at almost any level of exposure (although that risk may be large or small depending on the amount and duration of the exposure and the type of carcinogen involved). Under the NCP, when remedies cannot entirely eliminate potential exposure to a carcinogen, the Agency may achieve protection of human health by selecting remedies that pose very small risks, (i.e., that are within an acceptable range of risk) based on a review of reliable cancer potency information such as EPA's cancer potency factors.¹⁷⁵

In the proposed NCP, the Agency had defined the acceptable risk range as being from 10<-4> to 10<-7>, meaning that when the excess risk to an individual of contracting cancer due to a lifetime exposure to a certain concentration of a carcinogen falls between approximately 1 in 10,000 and 1 in 10 million, it is judged to be an acceptable exposure.¹⁷⁶ As a measure of additional protection, the proposal provided that there should be a "point of departure" of 10<-6>, toward the more protective end of the scale, that should be used in setting preliminary remediation goals; if conditions warranted, the final remedy could achieve a level elsewhere within the range.¹⁷⁷

The final rule maintained the point of departure of 10<-6>, but narrowed the risk range to 10<-4> through 10<-6>.¹⁷⁸ This action was taken in response to public comment and concerns that the Superfund range went below the accepted de minimis level used by other EPA programs and those of other federal agencies. It also reflects the limits of available analytical techniques, which cannot effectively verify for many contaminants that concentration levels corresponding to a risk of 10<-7> have actually been attained.¹⁷⁹

Although this change might appear to be a lessening of protection or a lessening of the Agency's commitment to protect, it is in fact likely to have minimal if any impact on the selection of remedies at Superfund sites for two reasons. First, no CERCLA remedies have selected 10<-7> as a cleanup level to date (although one or two may have achieved it due to the efficacy of the technology). Second, the Agency has retained the discretion to select a cleanup level outside the range in appropriate circumstances (e.g., where concerns about sensitive populations, synergistic effects among chemical mixtures, etc., suggest that the remedy should attain a level below 10<-6>).

The use of a range of acceptable risk is general practice for most government programs.¹⁸⁰ As discussed below in the section on role of cost, it affords the Agency the flexibility to take into account different situations, different kinds of threats, and different kinds of technical remedies. If a single risk level had been adopted, (e.g., at the more stringent end of the risk range), fewer alternatives would be expected to pass the protectiveness threshold and qualify for consideration in the balancing phase of the remedy selection process.

Remedy Selection — Added Structure

One of the major changes between the proposed and final NCP is the attempt in the final rule to build greater structure into the remedy selection process. The Superfund program has been criticized for having a process that was too vague and incapable of quality control or review; rather, remedies were said to be selected by an arbitrary assessment of any of the nine remedy selection criteria. The process was equated with juggling nine balls and picking one out of the air.

By making a number of structural modifications in the remedy selection process, EPA seeks to accomplish two goals: first, to increase consistency in both process and result during remedy selection, and second, to improve [20 ELR 10238] understanding of the process on the part of the public and PRPs.

* Categorizing the Nine Criteria During Final Remedy Selection. The first initiative was to group the nine criteria into three functional categories and to place those categories in the text of the rule.¹⁸¹

First, the rule establishes a category of two "threshold" criteria that all remedial alternatives must meet to be considered in the final balancing: (1) "overall protection of human health and the environment" and (2) "compliance with applicable or relevant and appropriate requirements of other environmental laws (unless a waiver is justified)." These requirements cannot be compromised.

Next, the rule establishes a category of five "balancing criteria" that are used to weigh the tradeoffs among the protective, ARAR-compliant¹⁸² remedial alternatives:

* long-term effectiveness and permanence;

* reduction of toxicity, mobility, or volume through treatment;

* short-term effectiveness (e.g., environmental impacts during the cleanup itself);

* implementability (e.g., whether the technology being considered is available within the necessary timeframe); and

* cost.

Finally, two "modifying criteria" — state acceptance and community acceptance — are considered in altering otherwise viable approaches. These criteria are listed for consideration at the end of the process because they are generally not fully known until after the public comment period on the proposed plan; however, they may be considered part of the balancing process as soon as they are known.

These categories of criteria were discussed in the preamble to the proposed NCP, but they were intended to be used during the detailed analysis stage.¹⁸³ The final rule moves the criteria into the text of the rule itself and makes them applicable to the remedy selection decision itself, thereby assuring that the final decision gives the appropriate consideration to each factor.

Although the nine criteria do afford the Agency considerable flexibility, the remedy selection process is not as wide open as it may seem. In practice, most alternatives will not show dramatic differences in all nine criteria (remember that all must be protective and ARAR-compliant to get into the balancing stage). Tradeoffs on a site-specific basis are likely to focus on one or two criteria. For instance, where alternatives are similar in cost, the balancing will focus on differences in effectiveness or implementability; where two alternatives both accomplish treatment, the key factor may be cost or short-term effects. It is highly unlikely that all of the balancing and modifying factors will be at issue in the comparison of two alternatives.

Further, during the final balancing stage, when the Agency selects the alternative that "utilizes permanent solutions and treatment to the maximum extent practicable," the final rule places special emphasis on the factors of "long-term effectiveness and permanance" and "reduction in mobility, toxicity, or volume through treatment;"¹⁸⁴ these two criteria will be decisive when the alternatives perform similarly with respect to other balancing criteria.¹⁸⁵ Thus, where Alternative A is protective at a lower cost than Alternative B, but Alternative B would result in a greater reduction in the mobility of the waste, the rule would assign added "points" to the treatment alternative. Where alternatives provide similar long-term effectiveness and permanence and a similar reduction in mobility, toxicity, or volume, the other balancing criteria will serve to distinguish among the alternatives. This prioritizing of criteria adds some greater predictability to the process.

Thus, although the nine criteria have been retained, the discretion in evaluating them has been somewhat limited by structural changes in the final rule. Those changes should also help the decisionmakers — and the reviewing public — to better understand the process of selecting a remedy from among unequal options.

* Emphasis on Treatment. Another major change in the remedy selection process under the 1990 NCP is the increased emphasis on treatment in CERCLA remedies. EPA sets this tone at the outset by establishing a new program goal that EPA shall select remedies that are protective over time and "minimize untreated waste."¹⁸⁶ The rule then goes on to set out the "expectation" that the Agency will "use treatment to address the principal threats posed by a site, wherever practicable."¹⁸⁷ Treatment may represent the sole remedy, or it may be part of a combination of responses, as where "hot spot" areas are treated and immobile wastes and treatment residues are controlled using engineering controls. The preamble further establishes, as a guideline, that treatment as part of CERCLA remedies should generally achieve reductions of 90 to 99 percent in the concentration or mobility of contaminants of concern.¹⁸⁸

Also, as noted above, the final rule emphasizes treatment during final remedy selection by requiring that the factors of long-term effectiveness and permanence and reduction in mobility, toxicity, or volume through treatment be emphasized in the final balancing process to determine which alternative offers the maximum permanence and treatment practicable.¹⁸⁹

Another way in which the final rule has been revised to encourage the selection of more treatment remedies is through the addition of an expectation that innovative treatment technology alternatives should be developed where such technologies offer the potential for "comparable" performance;¹⁹⁰ an innovative technology need not be shown to be superior to more proven technologies to be chosen as part of a remedy.

These factors, taken together, suggest that more treatment [20 ELR 10239] remedies will be selected under the 1990 NCP than was the case previously.

* "Expectations" in the Final Rule. A third important change in the structure of the remedy selection process is the addition of remedial expectations into the rule section of the final NCP. EPA discussed in the preamble to the proposed rule the type of remedies that were "expected" to result from the remedy selection process;¹⁹¹ to highlight this important guidance, the expectations were moved into the text of the final rule.¹⁹² These statements are not intended to require the selection of any particular remedy at specific sites, or to substitute for the site-specific balancing of the nine criteria during remedy selection. Rather, they are intended to educate decisionmakers and the public as to the type of remedies that EPA has selected in certain situations, so that learning will not be unnecessarily repeated and an appropriate range of alternatives may be considered.¹⁹³

For example, it is the Agency's experience and expectation that highly mobile wastes need to be treated, and that where highly mobile contaminants exist, the lead agency should focus on the development of treatment alternatives. Thus, the rule states that "EPA expects to use treatment to address the principal threats posed by a site, wherever practicable."¹⁹⁴ Similarly, it is the Agency's experience and expectation that large volumes of low contamination wastes (e.g., large municipal landfills) are most appropriately contained; thus, a focus on the development of engineering control alternatives is recommended for such cases.¹⁹⁵

The expectations also recognize that in many cases, the appropriate remedy may include a combination of treatment and containment, such as where the levels of contamination vary over a site. The Agency would expect in such cases to treat hot spots of high level, mobile contaminants, and certain areas oflow contamination.¹⁹⁶

There may also be sites where the expectations will not prove useful under the circumstances of the release. In any case, as noted above,the expectations are not intended to avoid the full remedy selection analysis; each remedy must still be explained and justified in a proposed plan. The preamble to the final NCP makes clear that reliance on an expectation alone is not reason enough to select a particular remedy.

Similar to expectations in the final rule are a number of "management principles" to offer programmatic guidance for the remedy selection process.¹⁹⁷ One of the most frequently discussed is the principle that there should be a "bias for action" at Superfund sites. This means that actions should be taken as early as possible when necessary or appropriate to achieve significant risk reduction quickly.¹⁹⁸ This policy may be implemented by the initiation of operable units in phases or the use of removal actions to address immediate threats at NPL sites.¹⁹⁹

A second fundamental management principle is that of "streamlining" the Superfund process. The site response program has been criticized for performing unnecessarily long studies and data collection. Streamlining is a concept of tailoring the data-collection needs, the evaluation of alternatives, and the documentation of the selected remedy to reflect the scope and complexity of the site-specific problems.²⁰⁰ For example, the preamble to the final rule discusses the use of a focused or streamlined FS where site problems are straightforward such that it would be inappropriate to develop a full range of alternatives (or where a removal action has limited the amount of additional work necessary).²⁰¹

The Agency believes that the addition of these expectations and principles to the remedy selection framework will help to expedite action and lead to similar remedies at similar sites. Here, as with much of the final rule, the test will be in the implementation.

* Fund-Balancing Waiver. EPA also sought to add structure to the remedy selection process by identifying a threshold at which a waiver of ARARs based on a balancing of demands on the Fund would be "routinely considered." Comment was specifically solicited on this issue.²⁰²

As noted above, CERCLA § 121(d)(4) sets out six limited circumstances in which an environmental standard that is applicable or relevant and appropriate may be waived by EPA foran on-site action. The sixth waiver, called the Fund-balancing waiver, is available only for remedial actions undertaken using Fund monies and only where the attainment of the standard "will not provide a balance" between the need for protection of public health and the environment and the availability of amounts from the Fund to respond to other seriously contaminated sites.²⁰³ This waiver has been used sparingly to date.²⁰⁴ After a review of the public comments submitted, the preamble to the final rule provides that the Agency will routinely consider the Fund-balancing waiver in cases where the cost of an operable unit is more than four times the average operable unit cost (the average operable unit cost is now approximately $ 15 million, resulting in a trigger of approximately $ 60 million for routine consideration of this waiver).²⁰⁵

It is difficult to predict the impact or significance of this change. Certainly, it means that the Fund-balancing waiver will be considered more often. However, this is only a policy, and the policy merely states that the regions should [20 ELR 10240] "consider" the waiver when the cost of an operable unit exceeds the threshold.

* Role of Cost. The role of cost in remedy selection has been one of the most hotly disputed issues in the Superfund program. Many PRP groups argue that cost must be a major factor in deciding on an appropriate remedy and note that the requirement to select "cost-effective" remedies appears in CERCLA § 121(a) and (b). Many environmentalists and some legislators have argued that cost is given too much emphasis in remedy selection and have posited that cost should be considered only in determining the cost-efficient method for implementing a selected remedy. In effect, they argue that the proper cleanup level for a site should be set, and then a remedy should be selected to attain that level, without consideration of cost.²⁰⁶

In the preamble to the final rule, EPA discussed the role of cost at great length.²⁰⁷ The Agency stated that it agrees that cost should not be considered in setting the protective level in situations where a specific ARAR defines the cleanup level that must be achieved at the site (e.g., where an MCLG above zero is available for contaminants in drinkable groundwater). However, where ARARs are not available for the specific contaminants of concern (or where ARARs are not sufficiently protective²⁰⁸), the Agency defines protectiveness in terms of the risk range, and several alternative remedial technologies may be capable of achieving protection within that range. Under such circumstances, cost may be one of the factors to consider in choosing among the available technologies.

It is important to note, however, that cost and other factors may be considered only to distinguish among alternatives that have been found to be protective of human health and the environment and in compliance with ARARs (or to have justified a waiver).

Cost is specifically considered during the final balancing process, as the Agency attempts to satisfy two statutory mandates of CERCLA § 121(b)(1) by identifying the remedial alternative that utilizes "permanent solutions and treatment . . . to the maximum extent practicable" while being cost-effective. These determinations are intended to be made simultaneously; however, for ease of analysis, they are discussed separately in the NCP.

Cost-Effectiveness. The determination whether a proposed remedial alternative is cost-effective is based on an evaluation of several of the nine criteria. First, overall effectiveness is assessed based on: long-term effectiveness and permanence; reduction of mobility, toxicity, or volume through treatment; and short-term effectiveness. The overall effectiveness is then compared to the cost of the alternative to determine if they are "in proportion" to one another²⁰⁹ (i.e., does the approach represent a reasonable value for the money?²¹⁰). In making this comparison, the decisionmaker is not directed by the NCP to place special emphasis on the factors of "reduction of toxicity, mobility or volume through treatment" and "long-term effectiveness and permanence," as is required during the assessment of permanence and treatment to the maximum extent practicable (as provided in NCP § 300.430(f)(1)(ii)(E)). However, because "effectiveness" is measured based on those two factors (plus short-term effectiveness), an alternative that is high in treatment and permanence will be considered more effective and thus can justify a relatively higher cost (high effectiveness and high cost would be in proportion). The comparison of cost to effectiveness is performed for each alternative individually and for all the alternatives in relation to one another.²¹¹ This latter analysis allows the Agency to identify alternatives that produce an incremental increase in effectiveness for a reasonable increase in cost, based on a comparison of corresponding increases for other alternatives. Several alternatives may be found to be cost-effective.²¹²

Although the statute requires EPA to select cost-effective remedies, EPA has decided not to consider cost-effectiveness as a threshold criterion on a par with protectiveness and compliance with ARARs. This is based in part on the fact that unlike the "protectiveness" and "compliance with ARARs" determinations, which can be reached for each alternative individually, the cost-effectiveness finding requires a comparison of each alternative in relation to other alternatives and the consideration of several factors during a balancing phase. (The same comment is true of the statutory mandate to utilize permanent solutions and treatment to the maximum extent practicable.) In addition, the preamble to the final rule suggests that reliable information on cost will not be generally available as early in the process as is information on a remedial technology's protectiveness, and thus cost should not be used too early in the final balancing process to eliminate viable alternatives.²¹³

Cost and Practicability. The statutory requirement to select the alternative (there is only one) that utilizes permanence and treatment to the maximum extent practicable²¹⁴ is fulfilled by selecting the protective, ARAR-compliant alternative that provides the best balance of tradeoffs among alternatives based on a review of all the balancing and modifying criteria (if the latter are known).²¹⁵ It is a subjective judgment, but the NCP sets out some parameters to help assure consistency in its application. Specifically, the NCP requires that during the balancing process, the factors of long-term effectiveness and permanence and reduction in toxicity, mobility, or volume should be emphasized, and that the "preference for treatment as a principal element" and the "bias against off-site land disposal of untreated wastes" must be considered.²¹⁶ [20 ELR 10241] This statutory determination is the final step in the process before a remedy is recommended in the proposed plan.

Although cost, as one of the nine criteria, is considered in making this determination, it is not expected to play a major role. The importance of almost every other criterion to this determination is emphasized by the NCP. First, the two threshold criteria must already have been met for any alternative considered during the final balancing. Second, the rule places special emphasis on the treatment and effectiveness factors during this determination; those criteria will be "the most important, decisive factors in remedy selection when the alternatives perform similarly with respect to other balancing criteria."²¹⁷ Third, the NCP highlights the two modifying criteria²¹⁸ and "implementability"²¹⁹ as important considerations in fulfilling this statutory requirement. Thus, cost is one of only two of the nine criteria the use of which is not stressed for this determination. It is also noteworthy that cost will not always be a differentiating factor between remedial alternatives; the final remedy selection will generally focus on tradeoffs based on only one or two criteria.

Cost as a Screen. Cost may also be considered during one other aspect of the remedy selection process: screening, when alternatives that are deemed not to be viable are eliminated from more thorough consideration. The use of cost at this early stage has also been the subject of considerable comment. Many were concerned that cost would be used to screen out appropriate remedial technologies early in the process before they were given a fair evaluation and without the benefit of public review and comment.

The final NCP has been revised to narrow the circumstances under which cost may be considered when screening alternatives at the start of the evaluation process. Specifically, the final rule provides that a given alternative may be eliminated during screening if it is determined that the cost of the alternative is "grossly excessive" compared with its effectiveness.²²⁰ This provision will allow the Agency to avoid the need to conduct resource-intensive analyses of extreme and unrealistic options, while at the same time not allowing cost to compromise consideration of viable options that may simply be more expensive than other alternatives.²²¹

* Definition of "On-site" and Application to Noncontiguous facilities. Critical to both the type and extent of remedies that may be selected is the definition of the CERCLA site. The site definition is important because "[n]o Federal, State, or local permit shall be required for the portion of any removal or remedial action conducted entirely onsite . . . ."²²² Further, the process of meeting ARARs — and the substantive versus administrative distinction — only applies to on-site actions.²²³ However, the term "on-site" is undefined in the statute.

In the proposed NCP, EPA took comment on several possible interpretations of "on-site" and suggested defining the term in a manner consistent with statutory intent and the practical realities of site response.²²⁴ Specifically, the Agency sought to address situations in which a treatment plant needs to be located on uncontaminated property over a plume of contamination, or a sludge stabilization tank needs to be located next to, but not in, a sludge pit; thus, the proposal suggested defining "on-site" as the actual contamination plus limited surrounding areas.

After reviewing public comments, the Agency adopted the approach recommended in the proposal and defined "on-site" as consisting of "the areal extent of contamination and all suitable areas in very close proximity to the contamination necessary for implementation of the response action."²²⁵ By defining the site to include contaminated areas plus those areas in "very close proximity" and "necessary" to implementation of the response, the Agency sought to give pragmatic effect to the statutory provision that on-site CERCLA remedies should not be required to obtain a permit, while not unduly expanding the commonsense concept of what actions are "entirely onsite."²²⁶

The exemption from permit requirements for on-site actions has even greater implications when considered in conjunction with EPA's power to address releases at noncontiguous facilities. CERCLA § 104(d)(4) allows the Agency broad discretion to treat noncontiguous facilities as one site for the purpose of taking response action.²²⁷ The only limitations prescribed by the statute are that the facilities be reasonably related either "on the basis of geography" or "on the basis of the threat, or potential threat to the public health or welfare or the environment." Once the decision is made to treat two or more facilities as one site, no permit will be required for the management of waste transferred from one part of the aggregated site to the other.

[20 ELR 10242]

The preamble to the final rule recognizes the significant impact such aggregations could have, because in theory one Superfund site could come to be treated as the disposal site for many Superfund sites. Such a result could be of concern to communities, affected states, and PRPs. Thus, the Agency set out a number of factors that should be considered in deciding whether it makes sense under CERCLA to treat two or more contamination problems as one.²²⁸

First, the decisionmaker would look into whether the wastes from the noncontiguous facilities are appropriate for similar treatment or disposal. Second, the possible transportation risks would be evaluated (e.g., the risks might be significant where the wastes are highly volatile or the transfer would take place through heavily populated areas). Third, the views and consent of the affected state(s) and public should be solicited. And fourth, the cost-effectiveness of the aggregated response should be evaluated (including the incremental cost of transportation).²²⁹ The Agency rejected the idea that a specific distance could be defined for saying when aggregation would or would not be appropriate. Rather, the final rule contemplates a case-by-case evaluation of all factors as part of the ROD process, with opportunity for comment by all interested parties.

During the NCP comment period, a number of PRPs raised the concern that they could face increased liability if two or more Superfund sites were treated as one.²³⁰ Such issues could be raised during comments on the site-specific aggregation decision. Of course, liability issues potentially arise from every response action, whether waste is left on site, sent to an off-site disposal facility, or sent to a treatment or disposal facility that is part of a remedy at a noncontiguous Superfund facility. It is not obvious that the third option, with its inherent EPA oversight, poses a greater risk of liability than the first two.

State Issues

* NPL Deferral. Of all the issues in the proposed NCP, the one that received the most public comments was whether EPA should defer the listing of sites on the NPL based on the availability of "some" response authority under other federal or state laws. (A deferral policy already existed, and continues, for most private sites that are subject to federal or state-authorized RCRA programs, and for sites that are regulated under licenses issued by the Nuclear Regulatory Commission.²³¹) Although many states argued that they have the capability to clean up sites as well as or better than the federal government, the idea of state deferral was "deferred" in the final rule.²³² Congressional staff have indicated that the concept of deferring sites from the NPL may be reviewed by Congress during CERCLA reauthorization; a possibly limited deferral for "CERCLA-quality" state programs may be considered at that time.²³³

* Role of States in Response Actions. The role of states in the CERCLA response process was a major part of the NCP revisions. In line with the mandate of CERCLA § 121(f), the Agency sought to spell out the opportunities and methods for state involvement throughout the site evaluation and response process; this initiative resulted in a new Subpart F to the NCP. It is meant to establish a "partnership" between the federal and state governments at CERCLA sites.

Perhaps most significantly, the final revisions set out an expanded role for states in the remedy selection portion of the process. For Fund-financed sites, a state may be designated as the lead agency where it demonstrates certain capabilities, and thereby performs the RI/FS, drafts the proposed plan and ROD, and conducts the remedial design/remedial action (RD/RA) phases of the response. This affords the states a major role over remedy selection: by drafting recommended alternatives and proposing the remedy, the state recommendations can be expected to strongly influence the final decision in many cases. (The deference accorded to a state recommendation will likely be greatest where the state has a proven track record of cleaning up sites.) At the same time, the final rule provides that for Fund-financed actions, a state may not publish a proposed plan that EPA has not approved,²³⁴ and where the state does prepare the ROD, it must seek EPA's concurrence and adoption of the remedy specified therein.²³⁵

For EPA-lead sites, the states also have considerable power. First, the NCP specifically requires EPA to seek state concurrence on its remedies,²³⁶ and in extreme cases where the state disagrees with a proposed Fund-financed remedy, it may withhold the required state assurances under CERCLA § 104(c)(3). (At EPA-lead enforcement sites, the states may challenge the waiver of ARARs under CERCLA § 121(f)(2).) The final rule also discusses dispute resolution procedures to work out state/federal conflicts.²³⁷

Alternatively, the state may take a non-Fund-financed, state-lead enforcement action at a site under state law (this is likely where a solvent PRP is available). EPA concurrence is not required for such actions, although it may be requested.²³⁸ The availability of EPA concurrence on state-lead enforcement sites is significant in that it may help states to achieve settlements with PRPs.²³⁹

Some states — those that have implemented aggressive cleanup programs — may argue that EPA has not gone far [20 ELR 10243] enough in turning over remedy selection authority to the states, and indeed, this sentiment was reflected in several comments on the NCP. However, EPA specifically declined to delegate the ultimate CERCLA remedy selection power to states in the final rule.²⁴⁰ The preamble explains the Agency's view that delegation of final decisionmaking authority on remedy selection is not appropriate, and that although an expanded state role is required under CERCLA § 121(f), EPA should retainprimary responsibility for the federal Superfund program. (Indeed, the role carved out for states in § 121(f) may be argued to imply that EPA should retain final decisionmaking authority.) There is also a general concern about the propriety of allowing states to commit Fund dollars without EPA oversight. The issue of state remedy selection, like the issue of deferral to states of potential NPL sites, may be the subject of congressional attention during the reauthorization of CERCLA.²⁴¹

* Enhancement of Remedies. The issue of whether a state may "enhance" an EPA-selected remedy, and under what conditions, has generated a significant amount of interest and controversy. Different people mean different things when they discuss "enhancement," and in fact, the term is often misused. Historically, the term has been used to include diverse types of potential state actions, from seeking to increase the level of cleanup, to building a larger treatment plant that may be used by the state after the CERCLA action is completed, to insisting on requirements that EPA believes are inappropriate or that could conflict with the EPA-selected remedy.

The final rule separates consideration of state-proposed actions that are (1) necessary to the selected action (those would be handled by ROD amendment or ESD); (2) not necessary to the selected action, but not inconsistent with the CERCLA remedy (these would be allowed in the Agency's discretion if the state assumed financial and oversight responsibility for the change); and (3) in conflict with EPA decisions.²⁴²

The preamble notes, as a threshold matter, that states already have significant opportunities during the RI/FS process leading up to remedy selection to suggest to EPA that state standards should be considered ARARs and thus attained, or that the proposed remedy should be expanded in scope. In most cases, these issues should be worked out prior to remedy selection and they are more properly viewed as remedy selection issues, not enhancement.²⁴³ The issue of enhancing or supplementing the selected remedy is more often an issue in the context of post-ROD suggestions for change.

Where, after the ROD, the state asks EPA to change or expand the selected remedy and EPA agrees that the state's suggestions are appropriate and necessary to protect human health and the environment, the Agency may include the changes in the Fund-financed remedy through a ROD amendment or ESD (consistent with final rule § 300.435(c)(2)), in which case the Agency would share in the costs of the modified or additional activity. If the Agency concludes that the state-suggested changes or expansions are not necessary to the selected remedial action, the Agency will not modify the ROD or pay for the additional action; however, the Agency may still decide to allow the additional action to proceed concurrent with the EPA-selected remedy.

Where EPA finds that the proposed change²⁴⁴ or expansion is not necessary to the EPA-selected remedy, but would not conflict or be inconsistent with it, the Agency may agree to integrate the proposed change or expansion into the planned CERCLA remedial work, but only if the state agrees to fund and oversee the necessary changes or additions. For example, the state may want a groundwater system to run longer than planned in order to attain water quality levels beyond those required under CERCLA, or the state may want to extend a water line outside the Superfund site in anticipation of expected residential or industrial development in the area. Such changes or expansions that would not conflict or be inconsistent with the EPA-selected remedy would generally be accommodated, on the condition that the state fund and supervise the change or expansion.

In instances where the state requests, and pays for, an incremental increase in the cleanup level, a lively debate can be expected between the state and any PRPs over whether the costs of such enhancements may be recovered in a cost recovery action. The state would be expected to argue that even if the cleanup is more than the minimum required under the NCP, it is "not inconsistent with the NCP" for purposes of cost recovery under CERCLA § 107(a)(4)(A). Interestingly, while CERCLA § 107(a)(4)(B) allows private parties to recover only "necessary" costs consistent with the NCP, the word "necessary" is absent from the cost recovery provision of CERCLA § 107(a)(4)(A), which applies to states.

Finally, where a state-proposed change or expansion would conflict or be inconsistent with the EPA-selected remedy, it would not be appropriate to allow the state to proceed without EPA approval.²⁴⁵ Indeed, to do so would be tantamount to giving the states a veto power over EPA remedial action decisions.

* Superfund Memorandum of Agreement. A major step in facilitating an EPA/state partnership under the NCP is expected to be the development of the Superfund [20 ELR 10244] Memorandum of Agreement (SMOA). SMOAs are voluntary, general agreements (not site-specific) that may be used to establish the general framework for the EPA/state working relationship, to define the roles of the lead and support agencies, and to provide for EPA oversight. They are the recommended method for working out the interrelationship between state and federal authorities.

In the proposed rule, EPA had suggested making SMOAs prerequisites to certain actions under CERCLA (e.g., the designation of a state as lead agency for a non-Fund financed action).²⁴⁶ However, a number of states strongly opposed a "requirement" to enter into a SMOA, and the final rule makes clear that SMOAs are not required as a condition for the state acting as lead agency. Instead, the final NCP provides that a number of issues — including annual EPA/state consultations, review by the support agency, timetables for the identification of ARARs, and dispute resolution — "may" be agreed to by the state and region in a SMOA. Where there is no SMOA, the rule sets out minimum requirements that would apply.²⁴⁷

* State Cost Share for O&M. One of the most sensitive issues for states in the final NCP has been the extent of state responsibility to pay O&M costs for CERCLA remedial actions. For remedial actions, the federal and state governments share costs according to the formula in CERCLA § 104(c)(3), generally 90 percent federal, 10 percent state.²⁴⁸ Once the remedy has been constructed and is operational, the costs and responsibility for operating and maintaining the remedy transfer to the state. The final rule provides that states are responsible for assuring the "operation and maintenance of implemented remedial actions for the expected life of those actions."²⁴⁹ The preamble explains that this position is consistent with the statute and long-standing EPA policy.²⁵⁰

SARA added to CERCLA a new § 104(c)(6), providing that for the purposes of CERCLA § 104(c)(3) — which includes the cost share provision — treatment or other measures necessary to restore ground or surface water quality would be considered remedial action as compared with O&M until protective levels are attained or for 10 years, whichever is earlier. By virtue of being included in the term "remedial action," restoration measures would qualify for the federal cost share.

A number of states commented that this section should be read expansively to include any measures that contribute to full restoration (e.g., the maintenance of caps and leachate collection systems). They argued that if such measures are not maintained, water quality could degrade and restoration would not occur. The final NCP takes the position that "treatment or other measures necessary to restore ground and surface water" do not include source control maintenance measures (like landfill cap maintenance or leachate collection systems) or measures whose primary purpose is to provide drinking water.²⁵¹ Although EPA recognized that a failure to maintain source control maintenance measures could result in some additional contamination of ground or surface water, those measures are not appropriately considered "necessary for restoration" and therefore "remedial actions" under CERCLA § 104(c)(6). Rather, they fall within the category of normal operation and maintenance activities.

The legislative history cited in the preamble to the final rule suggests that Congress sought, through § 104(c)(6), to correct an imbalance in the manner in which water body contamination was treated as compared with surface contamination.²⁵² In the case of surface cleanup, an action would be considered remedial — and subject to a cost share — throughout construction of engineering controls, excavation of the contaminated area, or until protective levels were otherwise achieved. However, for ground and surface water, actions were considered remedial only up to the point where the treatment plant was built and operational, regardless of remaining contaminant levels in the water. The solution adopted was to include within the definition of "remedial action" those ground and surface water restoration efforts taken up to the point that protective levels were achieved, or for 10 years, if earlier. The 10-year time limitation was added out of the recognition that groundwater remedies will generally take many years to complete and would be a major drain on the Superfund program if EPA were required to fund them.²⁵³

In the preamble to the final rule, EPA explained that the states' view would lead to results that are inconsistent with the intent of Congress and with common sense. If source control maintenance and other O&M activities are necessary for restoration, restoration can never be considered complete as long as O&M is required. This is clearly not the intent of Congress, since § 104(c)(6) contemplates that restoration may be considered complete when protective levels are achieved if in less than 10 years, even if O&M continues. The states' interpretation would also lead to a situation where virtually all on-site O&M activities could be characterized as remedial action under § 104(c)(6), on the theory that if they were not maintained, they might degrade the ground/surface water; such a result would appear to exceed the limited intent of Congress.

The final NCP also takes notice of the fact that groundwater pump-and-treat technologies may reach a point at which restoration activities no longer result in significant reductions in contaminant concentrations. Thus, the rule provides that restoration may be considered complete for the purposes of CERCLA § 104(c)(6) when protective levels are achieved, in 10 years, or when such a steady-state situation is reached.²⁵⁴

Finally, the preamble to the final rule states that EPA will consider funding O&M for "temporary or interim measures" to control or prevent further releases, where no final remedy for a unit has yet been selected (e.g., maintenanceof a temporary landfill cap).²⁵⁵ The rationale [20 ELR 10245] behind this policy is that interim measures may be necessary to stabilize a site while EPA is deciding on a final remedy; such measures are, in effect, part of the remedy. However, if EPA selects a final solution for an operable unit (e.g., a final cap on a contaminant source), the maintenance of that unit would be considered normal O&M for which the state would be responsible.

Administrative Record Issues (Subpart I)

This subpart implements CERCLA § 113(k) by setting out the rules for establishing an administrative record file and by explaining what material may be included in, or excluded from, the administrative record.

* Purposes of a Record. The administrative record for a site serves two basic purposes. First, it constitutes the record for judicial review. CERCLA § 113(j) specifically provides that judicial review of the adequacy of any CERCLA response will generally be limited to the record assembled by the Agency (rather than allowing for de novo review), although courts may go beyond the record and allow for the introduction of supplementary materials in limited cases. The public and PRPs have opportunities throughout the process to add materials to the administrative record file, particularly during the formal public comment period. All response decisions not dictated by CERCLA or the NCP should be justified in the administrative record.

The second fundamental purpose of establishing a record (and file) is to provide interested parties an opportunity to review the response actions proposed for a site, so that they may meaningfully participate in the response selection process.

* Administrative Record File vs. Administrative Record. The rule makes a distinction between the administrative record "file" and the administrative record. This is because typically, the formal record for judicial review is not compiled until after EPA selects a response action;²⁵⁶ the administrative record file is the mechanism for compiling the formal record, and making it publicly available, as early in the process as possible. Further, the Agency encourages the placement of even potentially relevant materials into the administrative record file, leaving the process of reviewing documents for relevance until the later compilation of the formal record.

The administrative record file should not be confused with the information repository for a site. Although some of the same documents may be contained in both files, and both provide the public with relevant information, they are fundamentally different. The information repository contains general documents that relate to a Superfund site and to the Superfund program, including background information and policy guides. By contrast, the administrative record file contains site-specific data, comments, and other documents used in the selection of a particular response action.²⁵⁷

For remedial actions, the administrative record file will be established after the start of the RI;²⁵⁸ for removal actions with a planning period of at least six months, the record file will be established when the engineering evaluation/cost analysis is made available;²⁵⁹ and for removals with a planning period of less than six months, the administrative record file will be made available no later than 60 days after initiation of the action.²⁶⁰ Except for emergency removals completed within 30 days of initiation, the administrative record file must be located at or near the site and at another central location for public review.²⁶¹

* What Is In/Out of the Administrative Record. The formal administrative record is compiled based on a review of the administrative record file and will include those documents that "form the basis for the selection of a response action,"²⁶² consistent with the mandate in CERCLA § 113(k) for the establishment of "an administrative record upon which the President [or his delegate, EPA] shall base the selection of a response action." The record will typically include factual information/data; analyses of factual information; policy and guidance documents; public participation documents, including public comments; decision documents throughout the process; orders; and responses to comments.²⁶³

At the same time, irrelevant, duplicative, and certain predecisional documents (e.g., staff-level options papers and drafts of final documents) would not necessarily be included in the administrative record, unless such documents contain information that forms the basis of selection of the response action and the information is not otherwise included in the administrative record.²⁶⁴ A contrary policy of including deliberative and predecisional documents in the record could have a chilling effect on the free exchange of ideas within EPA. Privileged information that formed the basis for a response action decision will be included in a confidential section of the administrative record.²⁶⁵

Although some commenters expressed the concern during the rulemaking that the final administrative record may not include all appropriate materials, the preamble to the final rule emphasizes that the record will include appropriate information even if it does not support the selected remedy. For example, comments submitted during the formal public comment period must be considered by the Agency and will be included in the record, even if they are ultimately rejected.²⁶⁶ In addition, as a matter of policy, EPA will attempt to consider significant comment submitted prior to the comment period. However, to the extent a party wishes to ensure that its comments will be considered by the Agency and made part of the record, [20 ELR 10246] those comments should be submitted (or resubmitted during the formal public comment period on the proposed plan).²⁶⁷

Interested persons may also submit technical studies or other information to EPA throughout the process leading up to final remedy selection,²⁶⁸ and the Agency will generally consider such information, if relevant and timely submitted. Such studies would then be placed in the administrative record file. Agency consideration of such studies will usually be reflected in subsequent documents or analyses performed by the Agency and included in the record file. Subject to the qualifications discussed above, information placed in the record file for a proposed response action and relevant to the selection of that response action, whether in support of or in opposition to the selected response action, will become part of the final administrative record for the response selection decision.²⁶⁹ Again, if there are questions as to whether all or part of a study was considered by the Agency or whether it will be a part of the final record, parties may wish to refer to the studies during the public comment period.

* Adding Documents Post-ROD. After the ROD is signed, certain classes of documents may be added to the administrative record files, including documents relating to remedy selection issues that the ROD reserves or does not address; ESD notices; documents relating to ROD amendments; and certain public comments that substantially support the need to significantly alter the response action.²⁷⁰ EPA may also establish separate comment periods on issues or documents of concern, and such documents — and the comments on them — will be made a part of the administrative record.²⁷¹

The need to add documents to the record after remedy selection is a logical reflection of the fact that the ROD does not resolve or even contemplate all issues concerning the response action; indeed, as noted above, the ROD may specifically reserve certain issues. In addition, it is common, if not inevitable, for issues to arise during the design and implementation phases of the remedy, requiring the Agency to refine, modify, or clarify aspects of the response action. Documents relating to these activities are necessary components of the record for reviewing the Agency's action.

Public Participation

The new administrative record provisions are an important component of the Agency's efforts to increase public involvement and awareness of CERCLA actions. In addition to those provisions, the final NCP also incorporates new community relations requirements, in response to the mandate in CERCLA § 117. Unlike the 1985 NCP, in which community relations requirements were addressed separately in one section,²⁷² the 1990 revisions incorporate community relations requirements into each of the sections relating to the different phases of response (i.e., removal actions, RI/FSs, selection of remedy, and RD/RA).²⁷³

During Removal Actions. The amount of public participation required by the NCP during removal actions has been greatly expanded from the simple requirements in the 1985 NCP to designate a spokesman and to develop a formal community relations plan for removal actions extending beyond 45 days. The NCP now includes requirements regarding the preparation and availability of an administrative record file, a comment period, and interviews with local officials and interested persons.²⁷⁴ However, the timing and extent of the public participation required vary depending on whether the removal is considered an emergency, time-critical, or non-time-critical action.²⁷⁵ The extent of public participation also depends, to a large degree, on the needs and wishes of the public. NCP sets out the basic community relations requirements that EPA has found through experience to be necessary and allows for greater involvement where public interest is high.²⁷⁶ For example, the final rule allows for an extended comment period upon request.²⁷⁷

During the RI/FS. The final rule also increased the opportunities for public participation during the investigatory and alternatives assessment stages of the process. The revisions expand the use of the community relations plan (CRP) to provide greater opportunities for public participation in decisionmaking, require information repositories as well as administrative record files, more prominently discuss the availability of technical assistance grants (TAGs),²⁷⁸ and provide for interviews of members of the local community to better assess the views of affected residents, officials and other interested parties.²⁷⁹

During Remedial Actions. Similarly, the 1990 NCP revisions increase community relations and participation efforts during remedial actions. The revisions implement CERCLA § 117 by requiring the preparation and publication of a proposed plan, describing the remedial alternatives analyzed, and proposing a recommended alternative.²⁸⁰ In a change from the proposed rule, the final revisions allow the public 30 days to comment on the proposed plan, plus at least an additional 30 days upon simple request.²⁸¹

Under the final rule, the Agency will respond to significant comments received during the formal public comment period on the proposed plan for remedial response, as required under CERCLA § 117. In addition, the final rule [20 ELR 10247] "encourages" the lead agency to respond to significant comments submitted prior to the public comment period.²⁸²

Post-ROD. After the ROD has been signed and the design phase begins, the CRP will be reviewed and, where appropriate, revised to describe public involvement opportunities during RD/RA.²⁸⁴

There are several possible opportunities for public comment and involvement during implementation of the remedy. If the Agency decides to amend the ROD, a new proposed plan/public comment period will be established.²⁸⁵ This would generally occur where the Agency changes the remedy in a fundamental way, such as deciding that incineration instead of containment should be performed due to new information on the levels of organic constituents in the waste. In effect, such a change constitutes a new remedy selection, and the public would have a strong interest in providing views to the Agency. On the other hand, if the Agency changes the remedy in a significant but nonfundamental fashion, an ESD notice may be issued, consistent with CERCLA § 117(c).²⁸⁶

Neither the statute nor the NCP revisions require a new public comment period in the event that an ESD notice is issued. This is based in large part on the recognition that design and implementation will, in almost all cases, result in some refinements or modifications of the selected remedy. It would be very disruptive to require a new formal public comment and response to comment for alterations in the scope or cost of an already reviewed remedy (e.g., where 25 percent more soil needs to be excavated and treated, or where several more monitoring wells need to be installed). Further, additional comment is arguably unnecessary because the Agency will already have received the public's views of the basic remedial approach. Again, if the changes rise to the level of a fundamental change in the remedy, a formal ROD amendment would be required. (In any case, the Agency has the ability to provide additional public comment periods in appropriate cases,²⁸⁷ and may well do so where ESDs relate to contentious issues.)

Moreover, the public is not without an avenue to voice concerns where EPA issues an ESD notice. The ESD will be made available to the public, and concerned parties may submit comments to the Agency. The final rule specifically provides that the lead agency "is required" to consider comments submitted by interested persons after the close of the public comment period if the comments contain "significant" new information that could not have been submitted during the public comment period and which "substantially support the need to significantly alter the response action."²⁸⁸

Admittedly, this is not an invitation to frequent public comment after the remedy has started, but it is consistent with the need for the Agency to get on with the business of accomplishing cleanups. If public comments — including PRP comments — could, by right, require formal response and a halt in Agency action, the program would be subject to endless delays. Such a result would be inconsistent with both the intent in CERCLA to accomplish cleanups expeditiously and the express provision in CERCLA § 113(h) that no judicial review of CERCLA response actions may be obtained prior to enforcement or completion of the response action. The provision does, however, give the public (and PRPs) the opportunity to raise significant issues to EPA at any point in the RD/RA process.

PRP Issues

Several specific issues not already discussed may hold special interest for PRPs.

Private Party Cost Recovery Actions ("Consistency With the NCP"). One of the most important issues to private parties is the ability to recover their cleanup costs under CERCLA's cost recovery provision (§ 107). CERCLA § 107(a)(4)(B) provides that parties other than the federal government, states, or Indian tribes may recover necessary costs of response that are incurred consistent with the NCP.²⁸⁹ The issue of when a private party action is "consistent with the NCP" has long been a contentious one, both in and out of the courts.²⁹⁰ EPA addressed this issue in a new Subpart H;²⁹¹ the approach taken in the final rule represents a dramatic change from both the proposed rule and from the 1985 NCP.

The proposed rule provided that any person may undertake a response action to reduce or eliminate a release of a hazardous substance. It also set out a list of those NCP provisions for which compliance would be required for a private party response action to be considered consistent with the NCP for purposes of cost recovery actions under CERCLA § 107.²⁹²

In the final rule, EPA defines "consistency with the NCP" as whether a private party cleanup has, when evaluated as a whole, achieved "substantial compliance" with potentially applicable NCP requirements and resulted in a CERCLA-quality cleanup.²⁹³ (CERCLA § 107(a)(4)(B) [20 ELR 10248] also requires that the private party show that the costs incurred were "necessary" cleanup costs.)

This is a major change. The 1985 and the proposed NCP had required provision-by-provision comparisons between the elements of private actions and specific requirements in the NCP. This approach had allowed (if not encouraged) the parties that were responsible for the pollution to attempt to pick apart basically sound remedies, and thereby avoid paying their share of the cleanup costs. The revised approach calls for a less technical determination of whether a cleanup, when evaluated as a whole, appears to be along the lines contemplated by CERCLA (i.e., whether it is in "substantial compliance" with specified NCP requirements and has resulted in a CERCLA-quality cleanup). The rule specifically states that cost recovery actions should not be defeated based on immaterial or insubstantial deviations from the detailed set of NCP provisions (whether federal or private).²⁹⁴

The final rule does retain the list of potentially relevant NCP provisions that has appeared in prior rules,²⁹⁵ but as guidance, not as a list of fixed requirements.²⁹⁶ The retention of this list is intended to help parties who are uncertain as to what portions of the NCP might apply to them.²⁹⁷ It also provides some standard against which the substantial compliance test can be applied. (A private party can eliminate any uncertainty about achieving substantial compliance by meeting the full set of requirements identified by EPA as potentially relevant to private actions.)

A new element in the rule is the requirements for "CERCLA-quality cleanups." This determination is to be made based on a comparison of the action with the principal mandates of SARA: the basic remedy selection requirements of CERCLA § 121(b)(1) (i.e., the remedial action must be "protective of human health and the environment," utilize "permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable," and be "cost-effective"); the requirement to attain ARARs in § 121(d)(2); and the requirement to provide for meaningful public participation in § 117.²⁹⁸

EPA set this less restrictive test for cost recovery actions based on a belief that it is important to encourage private parties to perform voluntary cleanups of sites, and to remove unnecessary obstacles to their ability to recover their costs from the parties that are liable for the contamination. As noted above, many voluntary cleanups are being contested based on allegations that cleanups failed to meet the letter of the NCP, even if the spirit of the regulation was satisfied. The Agency concluded that such hyper-technical challenges were not in the best interest of environmental protection. At the same time, the new standard reflects the Agency's view that it is also important to encourage only environmentally sound cleanups, not any cleanup. The requirement for "CERCLA-quality cleanups" was intended to achieve this goal.

The NCP recognizes that in the final analysis, the courts will decide, on a case-by-case basis, whether cleanup actions are consistent with the NCP.²⁹⁹ However, the establishment of which requirements apply to private actions and to what extent they must be met (literally or substantially) appear to be within the Agency's authority (CERCLA § 105(a) and (b) authorize EPA to develop NCP procedures and requirements). Thus, the final rule attempts to set out a more lenient standard for review than that contained in previous rules.

* Enforcement Issues. The NCP sets out few enforcement-specific requirements. This is largely because of the need to maintain discretion in CERCLA's enforcement program. However, there are a number of enforcement issues addressed in the NCP that will be of interest to PRPs.

Perhaps the foremost enforcement issue is the perceived problem of dual enforcement under federal and state law. In effect, responsible parties want greater certainty that when they carry out a remedy under CERCLA, or under state law (in a non-Fund-financed, state-lead enforcement action), the cleanup will not be second-guessed by the other authority. The NCP has attempted to address this concern in part through the provisions of Subpart F.³⁰⁰

The major thrust of Subpart F is to set up a partnership between EPA and the states from the beginning to the end of a CERCLA action. The rule describes a formal process for concurrence between EPA and the states on remedies, and even provides for the availability of EPA concurrence on a non-Fund-financed, state-lead enforcement remedy.³⁰¹ (This latter possibility may help the states in concluding consent agreements with PRPs.) At EPA-lead enforcement sites, the NCP specifically requires EPA to notify the state of negotiations and to allow the state to participate.³⁰² When disagreements arise, the NCP contemplates the use of a dispute resolution process, preferably set out in a SMOA.³⁰³ (The SMOA is hoped to be an important tool in minimizing inconsistencies between EPA and the state.) Thus, the new procedures and policies outlined in the NCP are intended to result in greater coordination of EPA and state efforts and enforcement strategies. Where irreconcilable conflicts occur despite these procedures, issues of federal preemption and interpretations of CERCLA § 122(e)(6) may become important.³⁰⁴

A related question raised by some commenters is whether [20 ELR 10249] a state may require a PRP to do more than EPA has ordered. To a large extent, the coordination steps outlined above are intended to avoid such a situation. However, the state may in some cases want EPA to go beyond its selected remedy; that issue is addressed above in the discussion on state issues and enhancement of remedies.

Another enforcement-related point is the Agency's position on whether a PRP may obtain access to a site to perform its own sampling as a basis for commenting on the EPA (or state-lead) action. The NCP preamble states that EPA opposes "unrestricted" access to a site by PRPs, on the grounds that unrestricted access, sampling, and testing could present a health threat to those residing on or near the site;³⁰⁵ it could also jeopardize the efficient completion of the CERCLA action. PRPs do have the opportunity to perform the RI/FS under CERCLA § 104(a)(1);³⁰⁶ if they decline, they may be deemed to have given up the right to be on-site at all times. (This may serve as an incentive for PRPs to get involved in the CERCLA process at the earliest stages.)

This is not to say that the PRPs have no opportunity for access where they decline to perform the RI/FS. The lead agency may be receptive, in appropriate cases, to PRP requests for limited access under supervision, to the same extent that the agency would allow access to community groups that are monitoring CERCLA actions under TAGs. Even where the PRPs do not have physical access to the site, they do have the opportunity to review government data and studies through the administrative record file, and the lead agency has a significant interest in assuring that the file is complete. EPA and the state will ultimately be able to recover their investigative and cleanup costs only if their actions are adequately justified in the administrative record. PRPs will have the opportunity to comment on information in the administrative record file during the comment period on the proposed plan.

* Effect of Final Rule on Ongoing Actions. Also of interest to PRPs will be the effect of the new revisions on ongoing actions. It is important to note that, starting on the effective date (April 9, 1990), the NCP applies to all CERCLA actions, even those that commenced prior to that date under the 1985 NCP.³⁰⁷ (The exception is made for administrative record requirements, which apply to ongoingactions only "to the extent practicable."³⁰⁸) The preamble explains that this should not pose a hardship to ongoing actions, because most of the revisions were already common practice or are easily accommodated. Specifically, the final rule does not differ dramatically from the December 1988 proposed rule, which has been treated as guidance by the Agency. Further, the major changes from the 1985 NCP were those mandated by SARA, and those changes are (or should be) already reflected in ongoing actions. In addition, some of the more obvious problems of changing from an old system to a new one have been avoided by the provision on freezing ARARs — only standards that were identified as applicable or relevant and appropriate at the time of ROD signature must be attained even if new requirements are promulgated, except to the extent the new requirements call into question the protectiveness of the selected remedy.³⁰⁹

A contrary decision — to grandfather ongoing actions — could inappropriately open the way for many actions to avoid important requirements. The preamble notes that many Superfund actions, especially groundwater restoration efforts, are long-term in nature (generally taking from 10 to 30 years), and even RI/FSs can take from one to two years to complete;³¹⁰ the mere fact that such actions have already been started does not justify a permanent waiver of new requirements.

* Deletion From the NPL. Historically, the first question asked by parties when they learn that their site has become a target of attention under CERCLA is, "How do we get off the National Priorities List?" The answer has always been limited: finish the cleanup of the site or show that no cleanup is necessary. The final NCP gives some indication that the process may be even more difficult in the future, or at least, slower.

EPA has indicated that the number of sites deleted from the NPL should not be viewed as the measure of success of the Superfund program. This is due in large part to the fact that although many NPL sites have been substantially cleaned up, they require long periods of time before remediation can be formally completed (such that deletion is appropriate). This is typically the case for sites where groundwater contamination is involved: The sources of the contamination (e.g., drums, lagoons, waste piles) have been removed or controlled, but groundwater treatment continues. NPL deletion is also an inappropriate barometer of the program's success because it ignores the success of the removal program, which has resulted in addressing immediate threats at hundreds of sites.

To better communicate the information on the number of sites that have been "substantially" cleaned up, the final rule establishes a new "Construction Completion" category for remedies that have been implemented and are operating properly, including sites awaiting deletion; sites awaiting five-year review and/or deletion; and sites undergoing long-term remedial action to achieve cleanup levels identified in the ROD (e.g., pumping and treating of groundwater).³¹¹

The language in the preamble to the final rule suggests that PRPs should not look for rapid deletion of sites subject to five-year review (i.e., sites where hazardous substances remain as part of the remedy).³¹² EPA has stated through policy, and now has reaffirmed in the preamble to the NCP, that the Agency does not intend to delete sites from the NPL where hazardous substances remain until at least one five-year review has been conducted [20 ELR 10250] under CERCLA § 121(c) after completion of the remedial action.³¹³ The Administrator's Management Review of Superfund specifically suggested this approach.³¹⁴

Although it may appear to be a major shift in the rules of the game (i.e., how to get out of Superfund) it is too early to evaluate the effect of this policy. First, the regulations, even in 1985, gave EPA the discretion to delete or recategorize NPL sites "where no further response is appropriate,"³¹⁵ and in that sense the new policy was always a potential approach. Second, it is unclear that the policy will be used to severely delay the deletion of sites that have been cleaned up to EPA's specifications. For instance, the requirement that a "five-year review" be conducted before deletion does not necessarily mean that five years must go by after remedy completion before a site may be deleted under the policy. The statute requires a review "no less often than each 5 years," and thus in appropriate cases, a review may follow the previous one by less than five-years (note that the first five-year review at a site must begin after the "initiation" — not completion — of the remedial action).³¹⁶

Even after a site is deleted from the NPL, the Agency has authority to take further action at the site in appropriate cases, without the need to go through a new HRS scoring.³¹⁷

* No Expanded NPL Deferral Policy. The issue of an expanded deferral policy is also of considerable interest to private parties. To some, the option of deferring NPL sites to states offered PRPs the possibility of working out reasonable cleanups with state officials in a less public, less expensive, and often less cumbersome, process than under CERCLA. Similarly, deferral to other federal programs could have allowed PRPs to work out cleanups under the standards and procedures of other laws.³¹⁸

As discussed above, the Administrator decided to "defer" the idea of expanding the NPL deferral policy to include deferral to other federal authorities, state authorities, and enforcement orders.³¹⁹ It is expected that the concept will be reviewed by Congress during CERCLA reauthorization, and there are some indications that a limited deferral for "CERCLA-quality" programs may be considered at that time.

Federal Agency Issues

Federal agencies wear several hats under CERCLA. They can be the lead agency for cleanup, acting as the delegate of the President; they can be the designated trustee for certain natural resources; and they can serve as an expert agency, providing guidance to the lead agency on appropriate ways to handle specific waste types.³²⁰ The NCP discusses each of these roles.

* Applicability of the NCP. Facilities owned or operated by federal agencies or departments are subject to the requirements of the NCP in the same manner and to the extent they are applicable to private parties, except for those requirements that apply only to Fund-financed activities.³²¹

In addition, there are certain requirements imposed by statute that apply specifically and separately to federal facility sites. For instance, the final NCP specifically codifies the provision in CERCLA § 120(e)(4) that remedies for federal facility sites that are on the NPL should be selected jointly by EPA and the federal agency that owns or operates the facility, except that in the case of disagreement, the EPA Administrator selects the remedy.³²² However, most requirements that are specific to federal sites will be discussed in a new Subpart K to the NCP, discussed below.

* Subpart K Proposal. The Agency plans to propose a new subpart to the NCP to create a "road map" for how the requirements of the NCP apply to federal agencies, which may be both the PRP and the cleanup authority (as the delegate of the President) at their own sites. Subpart K may also codify certain provisions of CERCLA § 120 that apply uniquely to federal facilities.

The issue that is expected to be of most concern in Subpart K is how cleanup requirements will apply at federal facility sites that are not on the NPL (at which EPA has no formal role in the selection of remedial actions³²³). The role of the states at non-NPL federal facilities could, if addressed in Subpart K, be a contentious issue.³²⁴ Of course, the public will be afforded an opportunity to comment on Subpart K when it is proposed in the Federal Register.

* Natural Resource Trustees. Subpart G to the NCP discusses the role of certain federal agencies as trustees for natural resources.³²⁵ Upon notification of actual or [20 ELR 10251] threatened injury to natural resources, the trustee may conduct resource surveys and assessments, seek the restoration of the resource, or take other actions.³²⁶

CERCLA authorizes the use of the Fund to clean up releases, but SARA § 517 restricts the use of Fund monies for the restoration or rehabilitation of natural resources. The task of restoring resources is left to the natural resource trustee, who under CERCLA § 107(f) has the authority to sue PRPs for such damages and to restore affected resources with such monies. However, the statute and the NCP do provide for extensive coordination between the primary CERCLA cleanup action and any restoration activity that may be deemed necessary by the trustee.³²⁷

* Expertise and Support for EPA Cleanups. Finally, the NCP provides a major role for other federal agencies in providing expertise to the lead agency to facilitate response actions under CERCLA.³²⁸ Subpart B of the NCP also groups certain federal agencies into a National Response Team, which is responsible for national response and preparedness planning,³²⁹ and the NCP establishes Regional Response Teams of federal, state, and local agencies, which are responsible for regional preparedness and planning as well as for providing advice and support to response site managers.³³⁰

Separate NCP Rulemakings

There are several rulemakings that are planned or in progress to further revise the NCP.

Revised Hazard Ranking System

On December 23, 1988, EPA proposed to revise the HRS, Appendix A to the NCP. The HRS is the model by which releases are assigned a numerical score for use in placing priority releases on the CERCLA NPL.³³¹ CERCLA § 105(c) had called for revisions by April 17, 1988.

CERCLA "Off-site" Transfer Rule

On November 29, 1988, EPA proposed to add § 300.440 to the NCP setting out requirements for the transfer of wastes from CERCLA sites.³³² The proposed rule would implement the requirements of CERCLA § 121(d)(3) and the "revised off-site policy," which currently provides that wastes from CERCLA-funded or authorized actions may only be transferred to properly permitted off-site facilities that are in compliance with applicable law and do not have uncontrolled releases of hazardous substances.³³³ Regulations on this issue were suggested in the Conference Report on SARA, but not by the language of the statute.

Subpart K to the NCP

As discussed above, the Agency intends to propose a new Subpart K to the NCP relating to CERCLA actions at federal facility sites.

Conclusions

The task of revising the rules of operation for the nation's Superfund program has been a formidable one for EPA. The Agency has had to reconcile competing mandates in fulfilling its responsibilities. For instance, the statute calls for the accomplishment of expeditious remedies, yet it requires substantial involvement of the public and the states, detailed administrative records, and a long study and alternatives-assessment process prior to remedy selection. The statute also calls for a maximum use of costly treatment technologies, while at the same time requiring selected remedies to be cost-effective.

By one measure, the NCP is an unqualified success: It contains "something for everyone." States can be expected to be happy with an expanded partnership role throughout the process; PRPs can be happy with the less restrictive private cost recovery standard, and with some more realistic expectations and principles for more streamlined decisionmaking; environmentalists should be heartened by the increased emphasis placed on selecting treatment-oriented remedies under this rule; community groups should be encouraged by the increased opportunities for participation in the process; and the interested public overall should be pleased by efforts to add some structure and predictability to a process that has historically been viewed as wide open.

At the same time, each of these constituencies is likely to be dissatisfied with parts of the final rule (indeed, in some cases precisely the part that pleased some other interest group). Such a reaction would not be unexpected from a process that seeks consensus, and a statute that includes a separate provision for each of several competing constituencies; indeed, such a reaction may be an indication that the Agency has charted a proper middle course.

However, the real measure of the NCP's success, and of the success of the Superfund program more broadly, will be in the implementation — not the words — of the final rule. Implementation is especially critical in this program because so many issues are addressed in guidance, rather than in binding rules. As noted earlier, although detail and structure have been added to the remedy selection process, the NCP remains a highly discretionary document, affording significant flexibility to the site-specific decision-maker. It is too early to tell how consistently those rules and policy statements will be applied.

Whether the new NCP is given a fair test in the field may depend, to a large degree, on Congress. The shadow on the horizon is the up-coming reauthorization of CERCLA. It would be unfortunate if Congress sought too quickly to try to remedy perceived problems before giving the new NCP regulatory framework some time to be understood and put to work. Perhaps the last thing the Superfund needs is another ambitious set of mandates and deadlines, like those in SARA, that would again turn Agency energies to rewriting the rules, rather than applying them in the field.

The final NCP has been long in coming. Only time will tell if it was worth the wait.

1. "Superfund" (the Fund) is the commonly used name for the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 001-075. The name stems from the fund established by CERCLA that may be used to directly finance cleanup actions. The Fund was originally established under CERCLA § 221, 42 U.S.C. § 9631 (1982), but was modified in 1986 by SARA § 517, and recodified at § 9507 Chapter 98 of the Internal Revenue Code.

2. 55 Fed. Reg. 8666-8865 (Mar. 8, 1990) (to be codified at 40 C.F.R. § 300).

3. Pub. L. No. 99-499, 100 Stat. 1613 (Oct. 17, 1986). On the 1986 amendments generally, see Atkeson et al., An Annotated Legislative History of the Superfund Amendments and Reauthorization Act of 1986 (SARA), 16 ELR 10360 (Dec. 1986).

4. 53 Fed. Reg. 51394 (Dec. 21, 1988). Virtually every section of the 1985 NCP relating to hazardous site response was revised or reorganized in the proposed NCP revisions, and most of those changes have been finalized in the 1990 revisions.

5. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 001-075.

6. Courageous readers will note that the bulk of the preamble consists of responses to public comment or lengthy discussions of policy issues that are not necessarily included in the rule. This reflects the practice of the Superfund program to give guidance in the preamble to its rulemakings; the Agency believed that most of the responses to comment were important enough to be included in the published package (which can then be easily cited), rather than included in a support document that is available only from the Superfund docket.

7. 42 U.S.C. §§ 6901-6992K, ELR STAT. RCRA 001-050.

8. The term "hazardous substance" is defined in CERCLA § 101(14), 42 U.S.C. § 9601(14), ELR STAT. CERCLA 007, to include any substance listed as hazardous under a number of other environmental statutes, including the Clean Air Act, the Clean Water Act, and RCRA. The term "pollutant or contaminant" is defined in § 101(33), 42 U.S.C. § 9601(33), ELR STAT. CERCLA 009, and generally includes any substance capable of endangering the health of humans or other organisms.

9. 42 U.S.C. § 9604, ELR STAT. CERCLA 012.

10. Although Congress placed the authority for administering CERCLA with the President, most of that authority was delegated to the Administrator of EPA (for nonfederal sites). Exec. Order No. 12580, 52 Fed. Reg. 2923, ELR ADMIN. MATERIALS 45031 (Jan. 29, 1987).

11. 42 U.S.C. § 9606, ELR STAT. CERCLA 024.

12. CERCLA § 101(25), 42 U.S.C. § 9601(25), ELR STAT. CERCLA 009.

13. Id. § 101(23), 42 U.S.C. § 9601(23), ELR STAT. CERCLA 008.

14. 55 Fed. Reg. at 8698 (Mar. 8, 1990); 54 Fed. Reg. 13298 (Mar. 31, 1989); 52 Fed. Reg. 27622 (July 22, 1987).

15. CERCLA § 101(24), 42 U.S.C. § 9601(24), ELR STAT. CERCLA 009.

16. Id. § 105(a), 42 U.S.C. § 9605(a), ELR STAT. CERCLA 021.

17. Id. § 104(d)(1)(A), 42 U.S.C. § 9604(d)(1)(A), ELR STAT. CERCLA 052.

18. NCP § 300.5; 40 C.F.R. § 300.6 (1985). Under the NCP, states cannot be the lead agency for all purposes. For example, only EPA may make the final remedy selection decision for a Fund-financed cleanup. See NCP § 300.515(e)(1); note 72 infra. For purposes of this Article, references will generally be to "EPA" action under CERCLA, even though in many cases, the state may assume the lead for actions at particular sites.

19. 42 U.S.C. § 9607, ELR STAT. CERCLA 024.

20. Id. § 9607(a)(4)(A), ELR STAT. CERCLA 024.

21. CERCLA § 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B), ELR STAT. CERCLA 024.

22. See, e.g., O'Neil v. Picillo, 883 F.2d 176, 20 ELR 20115 (1st Cir. 1989); United States v. Chem-Dyne Corp., 572 F. Supp. 802, 13 ELR 20986 (S.D. Ohio 1983).

23. The history and development of the NCP is discussed in detail in Freedman, Proposed Amendments to the National Contingency Plan: Explanation and Analysis, 19 ELR 10103 (Mar. 1989).

24. 50 Fed. Reg. 47912 (Nov. 20, 1985).

25. Codified at CERCLA § 105(b), 42 U.S.C. § 9605(b), ELR STAT. CERCLA 022.

26. Id. § 121(b), 42 U.S.C. § 9621(b), ELR STAT. CERCLA 051.

27. Id. § 121(d)(2), (d)(4), 42 U.S.C. § 9621(d)(2), (d)(4), ELR STAT. CERCLA 052. The statute provides for the waiver of an ARAR under six limited circumstances: (1) where the action is an interim measure, and the ARAR will be met upon completion; (2) where compliance with the ARAR would pose a greater risk to health and the environment than noncompliance; (3) where it is technically impracticable to meet the ARAR; (4) where the standard of performance of an ARAR can be met by an equivalent method; (5) where a state standard has not been consistently applied elsewhere; and (6) where compliance would not provide a balance between the protection achieved and demands on the Fund for other sites.

28. Id. § 121(a), (b)(1), 42 U.S.C. § 9621(a),(b)(1), ELR STAT. CERCLA 051.

29. Id. § 121(b)(1), 42 U.S.C. § 9621(b)(1), ELR STAT. CERCLA 051.

30. Id.

31. Id. §§ 117, 113(k), 42 U.S.C. §§ 9617, 9613(k), ELR STAT. CERCLA 042, 040.

32. Id. § 121(f), 42 U.S.C. § 9621(f), ELR STAT. CERCLA 053.

33. The requirement to select cost-effective remedies is stated in § 121(a) and (b)(1).

34. CERCLA § 105(b), 42 U.S.C. § 9605(b), ELR STAT. CERCLA 022.

35. Natural Resources Defense Council v. Reilly, No. 88-3199 (D.D.C. consent decree filed June 14, 1989).

36. 53 Fed. Reg. 51394 (Dec. 21, 1988).

37. 55 Fed. Reg. 8666-8865 (Mar. 8, 1990).

38. Id. at 8795. CERCLA's administrative record requirements apply to ongoing actions "to the extent practicable." CERCLA § 113(k)(2)(C), 42 U.S.C. § 9613(k)(2)(C), ELR STAT. CERCLA 040; see also NCP § 300.800(d),.800(e). This issue is discussed in more detail infra at text accompanying notes 307-10.

39. Reilly, A Management Review of the Superfund Program (June 1989).

40. 55 Fed. Reg. at 8839 (to be codified at 40 C.F.R. § 300.400-.440). Hereinafter sections of the final rule will be referred to as "NCP § 300. "; finalrule sections from the 1985 NCP will be referred to as "40 C.F.R. § 300. (1985)."

41. NCP § 300.500-.525.

42. NCP § 300.700-.825.

43. NCP § 300.800-.825.

44. CERCLA § 101(14) defines a "hazardous substance" to generally exclude "petroleum, including crude oil or any fraction thereof," as well as natural gas and natural gas liquids. However, where a hazardous substance is intermingled with a petroleum product, or where a petroleum product is specifically listed under one of the statutes in § 101(14), response authority under CERCLA is available. See Memorandum from Francis S. Blake, General Counsel, to J. Winston Porter, Assistant Administrator for Solid Waste and Emergency Response, Scope of the CERCLA Petroleum Exclusion Under Sections 101(14) and 104(a)(2) (July 31, 1987).

45. NCP § 300.1-.7.

46. NCP § 300.100-.185. This subpart deals with federal agencies as arms of the executive branch, offering their expertise on matters relevant to releases (e.g., the Nuclear Regulatory Commission with respect to waste containing radioactive elements, or the Fish and Wildlife Service regarding threatened species). This should be distinguished from planned Subpart K, which will set out the responsibilities of federal agencies when taking cleanup actions at their own facilities.

47. NCP § 300.200-.220.

48. NCP § 300.300-.335.

49. NCP § 300.600-.615.

50. NCP § 300.900-.920.

51. CERCLA § 105(d), 42 U.S.C. § 9605(d), ELR STAT. CERCLA 023.

52. NCP § 300.405.

53. NCP § 300.410.

54. NCP § 300.415.

55. Time-critical removal actions commence in fewer than six months after discovery of the release, while non-time-critical removal actions commence after a planning period of more than six months. 53 Fed. Reg. at 51409. Very few CERCLA removal actions fall into the non-time-critical category.

56. NCP § 300.420.

57. 40 C.F.R. pt. 300, app. A.

58. A rulemaking is presently under way to revise the HRS, consistent with CERCLA § 105(c), 42 U.S.C. § 9605(c), ELR STAT. CERCLA 023. See 53 Fed. Reg. 51962 (Dec. 23, 1988).

59. 40 C.F.R. pt. 300,app. B.

60. Monies from the Fund may be spent only for remedial actions at those releases listed on the NPL. See 40 C.F.R. § 300.66(c)(2), .68(a) (1985); NCP § 300.425(b)(1).

61. NCP § 300.425.

62. See NCP § 300.425(b)(1), .425(b)(2); 55 Fed. Reg. 8698 (Mar. 8, 1990); 54 Fed. Reg. 13298 (Mar. 31, 1989); 54 Fed. Reg. 10522 (Mar. 13, 1989).

63. NCP § 300.430(a)(2), .430(d), .430(e).

64. NCP § 300.430(e)(2)(i).

65. 55 Fed. Reg. 8712-13 (Mar. 8, 1990); see infra text accompanying notes 164-80.

66. NCP § 300.430(e)(7).

67. NCP § 300.430(e)(9).

68. NCP § 300.430(f).

69. NCP § 300.430(f)(1)(i).

70. CERCLA § 121(b)(1), NCP § 300.430(f)(1)(ii)(D) and (E).

71. NCP § 300.430(f)(1)(ii)(E).

72. If the state is the lead agency but EPA does not agree with the proposed plan, EPA may take back the lead on the project. See NCP § 300.515(e)(1).

73. NCP § 300.430(f)(2).

74. NCP § 300.430(f)(5). For a list of all CERCLA RODs, see ELR ADMIN. MATERIALS 30003:3.

75. NCP § 300.435.

76. CERCLA § 117(c), 42 U.S.C. § 9617(c), ELR STAT. CERCLA 043; NCP § 300.435(c)(2)(i).

77. NCP § 300.435(c)(2)(ii). The different circumstances warranting an ESD as compared with a ROD amendment are discussed below at text accompanying notes 284-88.

78. See NCP § 300.435(f)(3), and discussion below on state cost share for O&M.

79. CERCLA § 104(c)(3), 42 U.S.C. § 9604(c)(3), ELR STAT. CERCLA 013; NCP § 300.510(c)(1).

80. NCP § 300.425.

81. NCP § 300.430(f)(4)(ii).

82. NCP § 300.5.

83. 40 C.F.R. § 261.31-.33.

84. NCP § 300.400(g)(2)(i)-.400(g)(2)(viii).

85. The Agency has specifically discussed this interpretation with respect to the standards for closure of hazardous waste management units under RCRA. See 53 Fed. Reg. 51445-46 (Dec. 21, 1988).

86. CERCLA § 121(d)(4), 42 U.S.C. § 9621(d)(4), ELR STAT. CERCLA 052. There are six limited circumstances under which an ARAR may be waived. See supra note 27, and 55 Fed. Reg. 8747-50 (Mar. 8, 1990). Although waivers have been used rarely to date, the Agency is considering their more frequent application in the future. See, e.g., the discussion below in the section "Remedy Selection — Fund Balancing Waiver."

87. NCP § 300.400(g)(4).

88. 55 Fed. Reg. 8756-57 (Mar. 8, 1990). This issue is discussed in more detail below, in the section "ARARs Issues — Substantive, Not Administrative, Requirements."

89. 42 U.S.C. § 9621(d)(2)(A)(i) and (ii), ELR STAT. CERCLA 052.

90. Thus, they will not be considered potentially relevant and appropriate requirements, and they cannot be waived under CERCLA § 121(d)(4), 42 U.S.C. § 9621(d)(4), ELR STAT. CERCLA 052. One advantage of being considered a potential ARAR is that the requirement is on a list that is routinely considered by site managers (see 55 Fed. Reg. at 8764-66). Thus, the likelihood of early attention to the requirement is high.

91. 42 U.S.C. § 9621(d)(2)(A), ELR STAT. CERCLA 052.

92. Off-site transfers must also comply with EPA's off-site policy (EPA/OSWER Directive No. 9834.11, Nov. 13, 1987) and CERCLA § 121(d)(3), 42 U.S.C. § 9621(d)(3), ELR STAT. CERCLA 052. A new section of the NCP has been proposed to codify the off-site requirements in that policy and section of the statute. See 53 Fed. Reg. 48218 (Nov. 29, 1988).

93. 55 Fed. Reg. 8695-96 (Mar. 21, 1990).

94. 40 C.F.R. § 300.68(i)(1) (1985). Note, however, that under 40 C.F.R. § 300.65(f) and .68(i) (1985), remedies were required to meet the ARARs of federal environmental and public health laws; the statute and the final NCP limit ARARs to environmental laws.

95. NCP § 300.400(g)(4); see discussion below in "State ARARs Issues."

96. NCP § 300.415(i); see also 40 C.F.R. § 300.65(f) (1985).

97. 53 Fed. Reg. at 51441.

98. MCLs are independently applicable only to public drinking water systems. SDWA § 1401(1), 42 U.S.C. § 300f(1), ELR STAT. SDWA 002; 50 Fed. Reg. 46880 (Nov. 13, 1985). Hence, their use as potential ARARs for contaminated groundwater is based on an analysis that under CERCLA § 121(d)(2)(A)(i), they may be relevant and appropriate requirements in determining groundwater restoration levels. Similarly, MCLGs are not independently applicable (they are unenforceable goals). However, the statute requires the attainment of MCLGs where "relevant and appropriate under the circumstances of the release." CERCLA § 121(d)(2)(A), 42 U.S.C. § 9621(d)(2)(A), ELR STAT. CERCLA 052.

99. See NRDC v. EPA, 812 F.2d 721, 723, 17 ELR 20418 (D.C. Cir. 1987); SDWA § 1412, 42 U.S.C. § 300g-1, ELR STAT. SDWA 002; 50 Fed. Reg. 46880-81 (Nov. 13, 1985); 49 Fed. Reg. 2437 (June 12, 1984).

100. 53 Fed. Reg. 51441 (Dec. 21, 1988).

101. 55 Fed. Reg. 8751-52 (Mar. 8, 1990). ARARs are defined as the "promulgated" (i.e., enforceable) requirements of other laws. NCP § 300.400(g)(4). MCLs are the enforceable requirements of the SDWA. 50 Fed. Reg. 46881 (Nov. 13, 1985).

102. NCP § 300.430(e)(2)(i)(B), (C).

103. 55 Fed. Reg. 8751-52 (Mar. 8, 1990).

104. See Memorandum of Jonathan Z. Cannon, Acting Assistant Administrator for Solid Waste and Emergency Response, Considerations in Ground Water Remediation at Superfund Sites, EPA/OSWER Directive No. 9355.4-03 (Oct. 18, 1989).

105. CERCLA § 121(d)(2)(B)(ii), 42 U.S.C. § 9621(d)(2)(B)(ii), ELR STAT. CERCLA 052.

106. 55 Fed. Reg. 8754 (Mar. 8, 1990).

107. CERCLA § 121(d)(2)(B)(i), 42 U.S.C. § 9621(d)(2)(B)(i), ELR STAT. CERCLA 052.

108. 55 Fed. Reg. 8754-55 (Mar. 8, 1990).

109. 53 Fed. Reg. 51440 (Dec. 21, 1988).

110. NCP § 300.430(f)(1)(ii)(B); 55 Fed. Reg. 8757 (Mar. 8, 1990).

111. See S. REP. NO. 848, 96th Cong., 2d Sess. 56 (1980), reprinted in 1 SENATE COMM. ON ENVIRONMENT & PUBLIC WORKS, 97th Cong. 2d Sess., A Legislative History of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, at 363 (Comm. Print 1983):

The paramount purpose of this section [104] is the protection of public health, welfare and the environment. It is recognized that government response will often be necessary prior to receipt of evidence which conclusively establishes the substances or materials released or the origin of their release, discharge or disposal. Because delay will often exacerbate an already serious situation, the bill authorizes the President to respond when a substantial threat of release may exist.

Courts have also recognized the congressional intent to promote the "prompt cleanup of hazardous waste sites." Dickerson v. EPA, 834 F.2d 974, 978, 18 ELR 20305, 20306 (11th Cir. 1987); J. V. Peters & Co. v. EPA, 767 F.2d 263, 264, 15 ELR 20646 (6th Cir. 1985).

112. CERCLA § 121(c), 42 U.S.C. § 9621(c), ELR STAT. CERCLA 051; 40 C.F.R. § 300.430(f)(4)(ii); 53 Fed. Reg. 51430, 51507 (Dec. 21, 1988).

113. NCP § 300.430(f)(1)(ii)(B)(2).

114. See 53 Fed. Reg. 51443-47 (Dec. 21, 1988); 55 Fed. Reg. 8759-62 (Mar. 8, 1990).

115. 42 U.S.C. § 6924, ELR STAT. RCRA 012.

116. Pub. L. No. 98-616, 88 Stat. 3221.

117. 42 U.S.C. § 6924(k), ELR STAT. RCRA 013.

118. See, e.g., 53 Fed. Reg. 31138 (Aug. 17, 1988) (standards for first-third wastes issued); 54 Fed. Reg. 26594 (June 23, 1989) (standards for second-third wastes issued); 54 Fed. Reg. 48372 (Nov. 11, 1989) (standards for third-third wastes proposed).

119. See, e.g., RCRA § 3004(d)(3), which provides that for four years after the effective date of the HSWA, the restrictions in subsection (d) would not apply to "any disposal of contaminated soil or debris resulting from a response action taken under § 104 or 106 of [CERCLA] or a corrective action under this title." 42 U.S.C. § 6924(d)(3), ELR STAT. RCRA 013.

120. 53 Fed. Reg. 51444 (Dec. 21, 1988). However, movement of hazardous waste entirely within a unit would not constitute placement or "land disposal" under RCRA Subtitle C. Id.

121. 54 Fed. Reg. 41566 (Oct. 10, 1989).

122. 55 Fed. Reg. 8759-60 (Mar. 8, 1990).

123. Id. at 8760-61. Variances from BDAT are available under RCRA where the treatment technology is deemed not to be "appropriate" to the waste. 40 C.F.R. § 268.44.

124. See CERCLA § 121(e)(1), (d)(2); discussion at 53 Fed. Reg. 51443 (Dec. 21, 1988).

125. 55 Fed. Reg. 8762 (Mar. 8, 1990). EPA has issued detailed guidance on treatability variance levels for specific types of contaminants. See Superfund LDR Guidance No. 6A, Obtaining a Soil and Debris Treatability Variance for Remedial Actions, EPA/OSWER Directive No. 9347.3-06FS (July 1989).

126. 55 Fed. Reg. 8762 (Mar. 8, 1990).

127. 53 Fed. Reg. 51426 (Dec. 21, 1988).

128. 55 Fed. Reg. 8753 (Mar. 8, 1990).

129. Id. at 8734.

130. CERCLA § 121(b), 42 U.S.C. § 9621(b), ELR STAT. CERCLA 051. CERCLA also appears to contemplate the restoration of groundwater. CERCLA § 104(c)(6), 42 U.S.C. § 9604(c)(6), ELR STAT. CERCLA 013.

131. See, e.g., proposed § 300.430(b)(7), 53 Fed. Reg. 51504 (Dec. 21, 1988).

132. See, e.g., NCP § 300.400(g)(3), .415(i), .430(b)(9); 55 Fed. Reg. 8744-45 (Mar. 8, 1990).

133. See discussion in the preamble to the proposed rule at 53 Fed. Reg. 51443 (Dec. 21, 1988), and in CERCLA Compliance With Other Laws Manual, EPA/OSWER Directive No. 9234.1-01, at p. 1-11 (Interim Final Guidance, Aug. 8, 1988).

134. NCP § 300.5; 55 Fed. Reg. 8756 (Mar. 8, 1990).

135. See supra note 111. In addition to enacting an express permit waiver in CERCLA § 121(e)(1), discussed below, Congress recognized the need to allow cleanups to move forward without delay by enacting § 113(h), which delays judicial review of CERCLA response actions until EPA takes an enforcement or cost recovery action, until the action has been completed, or until an action has been filed under CERCLA § 106(b).

136. See 50 Fed. Reg. 47910-18 (Nov. 20, 1985); 50 Fed. Reg. 5865 (Feb. 12, 1985); Memorandum of Francis S. Blake, General Counsel, to Lee M. Thomas, Administrator, "CERCLA Compliance With Other Environmental Laws" Opinion (Nov. 22, 1985). The implied repeal theory is based in large part on the existence of the ARARs process under CERCLA § 121(d)(2) and (d)(4), which defines how and to what extent the requirements of federal and state environmental laws should apply to on-site CERCLA remedial actions. Based on these provisions, CERCLA remedies will incorporate (or waive) the standards of other environmental laws, as appropriate under CERCLA. Thus, although other environmental laws do not independently apply to CERCLA response actions, the substantive requirements of such laws will be applied to such actions, consistent with CERCLA § 121(d) and NCP § 300.400(g).

137. See, e.g., CERCLA Compliance With Other Laws Manual: Part II, EPA/OSWER Directive No. 9234.1-02, at p. 4-1 (Interim Final Guidance, Aug. 1989):

While EPA interprets CERCLA § 121(e) to exempt lead agencies . . . from complying with the administrative requirements for on-site remedial activities, it is strongly recommended that lead agencies, nonetheless, consult as specified with administering agencies for on-site actions. The administering agencies have the expertise to determine the impacts of a remedial action on particular aspects of the environment and what steps should be taken to avoid and mitigate adverse impacts.

138. NCP § 300.435(b)(2).

139. CERCLA § 121(d)(2)(A), 42 U.S.C. § 9621(d)(2)(A), ELR STAT. CERCLA 052.

140. 55 Fed. Reg. 8755 (Mar. 8, 1990).

141. Id. at 8695.

142. CERCLA §§ 101(23), 104(b); 42 U.S.C. §§ 9601(23), 9604(b); ELR STAT. CERCLA 052.

143. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA 001-027.

144. Id. §§ 470-470w-6.

145. See EPA/OSWER Directive No. 9234.1-02,supra note 137, at ch. 4.

146. 55 Fed. Reg. 8755 (Mar. 8, 1990).

147. CERCLA § 121(d)(4)(A), 42 U.S.C. § 9621(d)(4)(A), ELR STAT. CERCLA 052; NCP § 300.430(f)(1)(ii)(C)(1).

148. 40 C.F.R. § 300.65(f) (1985).

149. See CERCLA § 121(d)(2), 42 U.S.C. § 9621(d)(2), ELR STAT. CERCLA 052.

150. NCP § 300.415(i).

151. 55 Fed. Reg. 8695-96 (Mar. 8, 1990).

152. NCP § 300.415(i).

153. NCP § 300.415(i)(A) and (B).

154. "Removal" actions are defined in CERCLA § 101(23) as actions to "prevent, minimize or mitigate damage" or to conduct investigations, whereas "remedial" actions are defined in CERCLA § 101(24) as actions consistent with a "permanent" remedy at the site. Further, CERCLA § 104(c)(1) provides that Fund-financed removal actions may not continue after $ 2 million have been obligated or 12 months have elapsed, except under limited circumstances spelled out in that section. Both sections of the statute suggest that removals are generally intended to be short-term, nonpermanent actions. (Although in some cases, a removal action may result in a permanent solution to a contamination problem.)

155. For instance, as discussed below, there are additional public participation requirements associated with remedial actions.

156. CERCLA § 121(d)(4), 42 U.S.C. § 9621(d)(4), ELR STAT. CERCLA 052; NCP § 300.430(f)(1)(ii)(C).

157. 55 Fed. Reg. 8695; 8747 (Mar. 8, 1990).

158. CERCLA § 121(d)(2)(A)(ii), 42 U.S.C. § 9621(d)(2)(A)(ii), ELR STAT. CERCLA 052; NCP § 300.400(g)(4). (Note that "promulgated" is defined in the rule as being "of general applicability and legally enforceable." Id.) Under the 1985 NCP, state requirements were merely considered TBCs. 40 C.F.R. § 300.68(i)(4) (1985).

159. 55 Fed. Reg. 8741-42 (Mar. 8, 1990).

160. Id. at 8746; see NCP § 300.400(g)(5).

161. NCP § 300.515(d)(1).

162. See discussion at 53 Fed. Reg. 51438 (Dec. 21, 1988); 55 Fed. Reg. 8746 (Mar. 8, 1990).

163. CERCLA § 121(d)(4)(A), 42 U.S.C. § 9621(d)(4)(A), ELR STAT. CERCLA 052; NCP § 300.430(f)(1)(ii)(C)(1).

164. NCP § 300.430(d)(1).

165. 55 Fed. Reg. 8709 (Mar. 8, 1990). The baseline risk assessment consists of an exposure assessment component and a toxicity assessment component. It has superseded the "endangerment assessment," because the two have the same goal, function, and methodology. Id.

166. Id. at 8713.

167. NCP § 300.430(e)(2)(i), .430(e)(2)(i)(A)(2); 55 Fed. Reg. 8713 (Mar. 8, 1990).

168. 55 Fed. Reg. 8712 (Mar. 8, 1990).

169. This is in deference to the determination of another environmental protection program that the ARAR level is protective. (Cleanup to a level more stringent than the single ARAR might be appropriate to assure protectiveness where the Agency finds, for example, on a site-specific basis, that the contaminant poses a risk over more than one pathway of exposure. Id. at 8713.)

170. Id.

171. Id. at 8712-13. These levels are set based on reliable toxicity information, such as EPA's reference doses.

172. Id. at 8712.

173. NCP § 300.430(d)(4); 55 Fed. Reg. 8709-11 (Mar. 8, 1990). In effect, cleanups will be based on "likely" residential, industrial, or other uses. The Superfund program is in the process of developing generic exposure assumptions for such use categories.

174. 55 Fed. Reg. 8713 (Mar. 8, 1990).

175. Id.

176. 53 Fed. Reg. 51425-26 (Dec. 21, 1988).

177. Exposure factors, uncertainty factors, and technical factors may determine where to set remedial action goals within the risk range. See 55 Fed. Reg. 51426 (Mar. 8, 1990).

178. NCP § 300.430(e)(2)(i)(A)(2).

179. 55 Fed. Reg. 8716-17 (Mar. 8, 1990).

180. See, e.g. id. at 8717 n.9.

181. NCP § 300.420(f)(1)(i)(A)-(C); 55 Fed. Reg. 8724 (Mar. 8, 1990).

182. The analysis of compliance with ARARs does not necessarily resolve the issue of how stringent the remedy must be. As discussed below in the section on the "role of cost," where chemical-specific ARARs are not available to define the protective cleanup level for the relevant contaminants, the Agency will select among the alternative technologies that will result in remedies within the acceptable risk range; the balancing criteria aid in selecting among such viable, protective alternatives.

183. See 53 Fed. Reg. 51428-29 (Dec. 21, 1988).

184. NCP § 300.430(f)(1)(ii)(E).

185. 55 Fed. Reg. 8725 (Mar. 8, 1990).

186. NCP§ 300.430(a)(1)(i).

187. NCP § 300.430(f)(1)(iii)(A).

188. 55 Fed. Reg. 8721 (Mar. 8, 1990).

189. NCP §§ 300.430(f)(1)(ii)(E).

190. NCP § 300.430(a)(1)(iii)(E).

191. See 53 Fed. Reg. 51422 (Dec. 21, 1988).

192. NCP § 300.430(a)(1)(iii).

193. 55 Fed. Reg. 8702-03 (Mar. 8, 1990).

194. NCP § 300.430(f)(1)(iii)(A). "Principal threats" include liquids as well as highly toxic or highly mobile contamination.

195. NCP § 300.430(f)(1)(iii)(B).

196. NCP § 300.430(a)(1)(iii)(C). The rule also sets out expectations concerning the development of innovative technologies; the use of institutional controls, primarily a supplement to more active measures; and the restoration of groundwater to its beneficial uses, wherever practicable. NCP § 300.430(a)(1)(iii)(D)-(F).

197. NCP § 300.430(a)(1)(ii); 55 Fed. Reg. 8703 (Mar. 8, 1990).

198. NCP § 30.430(a)(1)(ii)(A).

199. See, e.g., Memorandum from Don R. Clay, Assistant Administrator for Solid Waste and Emergency Response, Interim Guidance on Addressing Immediate Threats at NPL Sites (Superfund Management Review: Recommendation No. 22), EPA/OSWER Directive No. 9200.2-03 (Jan. 30, 1990).

200. NCP § 30.430(a)(1)(ii)(C).

201. 55 Fed. Reg. 8712, 8714 (Mar. 8, 1990).

202. 53 Fed. Reg. 51440 (Dec. 21, 1988).

203. CERCLA § 121(d)(4)(f); NCP § 300.430(f)(1)(ii)(C)(6).

204. The Fund-balancing waiver has been invoked in only one case and considered in another. See Freedman, supra note 23, at 10132 n.261.

205. 55 Fed. Reg. 8749-50 (Mar. 8, 1990).

206. See, e.g., Senate Subcomm. on Superfund, Ocean, and Water Protection, Lautenberg-Durenberger Report on Superfund Implementation: Cleaning Up the Nation's Cleanup Program, 57-64 (May 1989).

207. 55 Fed. Reg. 8726-30 (Mar. 8, 1990).

208. See discussion above in "Risk Assessment and Risk Range."

209. NCP § 300.430(f)(1)(ii)(D); 55 Fed. Reg. 8728 (Mar. 8, 1990).

210. 55 Fed. Reg. 8728 (Mar. 8, 1990); see also 53 Fed. Reg. 51422 (Dec. 21, 1988).

211. 55 Fed. Reg. 8728 (Mar. 8, 1990); 53 Fed. Reg. 51427-28 (Dec. 21, 1988).

212. Alternatives with grossly excessive costs will be eliminated during screening, as discussed below.

213. 55 Fed. Reg. 8728 (Mar. 8, 1990). This decision not to use cost as a major factor in eliminating "viable" options prior to balancing is not necessarily inconsistent with the Agency's use of cost during screening, discussed below, to eliminate extreme (nonviable) options with "grossly" excessive cost.

214. CERCLA § 121(b)(1), 42 U.S.C. § 9621(b)(1), ELR STAT. CERCLA 052.

215. NCP § 300.430(f)(1)(ii)(e); 55 Fed. Reg. 8729 (Mar. 8, 1990).

216. The "permanence" offered by a remedy is an important element of this determination. The preamble to the final NCP notes that the maximum permanence practicable is judged along a continuum, based on the degree of long-term effectiveness and permanence afforded by a remedy. 55 Fed. Reg. 8720 (Mar. 8, 1990).

217. Id. at 8725.

218. Id.

219. Id. at 8729.

220. NCP § 300.430(e)(7)(iii); 55 Fed. Reg. 8714-15 (Mar. 8, 1990).

221. Cost may also be used to screen out an alternative that uses a similar technology and provides similar effectiveness and implementability to another alternative, but at a greater cost. In effect, this avoids the need to carry variations of the same technology through the detailed analysis phase.

222. CERCLA § 121(e)(1), 42 U.S.C. § 9621(e)(1), ELR STAT. CERCLA 053.

223. CERCLA § 121(d)(2)(A), 42 U.S.C. § 9621(d)(2)(A), ELR STAT. CERCLA 052 ("With respect to any hazardous substance, pollutant or contaminant that will remain onsite . . .").

224. 53 Fed. Reg. 51406-08 (Dec. 21, 1988); see also discussion in Freedman, supra note 23, at 10125-26.

225. NCP § 300.400(e).

226. 55 Fed. Reg. 8688-89 (Mar. 8, 1990). This definition of "on-site" in the NCP is also significant in that it defines, by extension, the term "off-site," and thus affects the scope of CERCLA policy on the transfer of CERCLA wastes off site. Currently, such transfers are regulated under the revised off-site policy, EPA/OSWER Directive No. 9834.11 (Nov. 13, 1987), and CERCLA § 121(d)(3), which provide generally that wastes from CERCLA-funded or authorized actions may only be transferred to properly permitted off-site facilities that are in compliance with applicable law, and do not have uncontrolled releases of hazardous substances. Regulations to implement the off-site policy and § 121(d)(3) have been proposed (53 Fed. Reg. 48219 (Nov. 29, 1988)).

227. As noted in CERCLA § 104(d)(4), "where two or more noncontiguous facilities are reasonably related on the basis of geography, or on the basis of the threat, or potential threat to the public health or welfare or the environment, the President may, in his discretion, treat these related facilities as one for the purposes of this section." 42 U.S.C. § 9604(d)(4), ELR STAT. CERCLA 015.

228. 55 Fed. Reg. 8690 (Mar. 8, 1990).

229. As a matter of policy, and as part of the hazard ranking system process for site evaluation, EPA applies more restrictive criteria to potential site aggregations at the NPL listing stage than it does at the remedial response stage. See 48 Fed. Reg. 40663 (Sept. 8, 1983).

230. 55 Fed. Reg. 8691 (Mar. 8, 1990).

231. See, e.g., 53 Fed. Reg. 51416 (Dec. 21, 1988) (proposed NCP); 53 Fed. Reg. 23978 (June 24, 1988); 48 Fed. Reg. 40658 (Sept. 8, 1983).

232. 55 Fed. Reg. 8667 (Dec. 21, 1988).

233. A recent report by GAO on the capability of State response programs revealed disparities in the abilities of states to clean up sites, but recognized that many states have well-developed response programs. See GAO REP. NO. GAO/RCED-89-164, HAZARDOUS WASTE SITES: STATE CLEANUP STATUS AND ITS IMPLICATIONS FOR FEDERAL POLICY (Aug. 1989).

234. NCP § 300.515(e)(1).

235. NCP § 300.515(e)(2)(i); 55 Fed. Reg. 8782 (Mar. 8, 1990).

236. NCP § 300.515(e)(2)(i).

237. 55 Fed. Reg. 8781-82 (Mar. 8, 1990).

238. NCP § 300.515(e)(2)(ii).

239. However, there are limitations on the ability of a state to take independent actions. If EPA undertakes (or has already begun) an RI/FS at a site, CERCLA § 122(e)(6) would not allow a PRP to take remedial action at the site without the prior authorization of EPA, and on its face, that section would also appear to proscribe PRP remedial actions ordered by a state. Further, where EPA does not concur on a state remedy, EPA will not be deemed to have approved the state decision, resulting in less certainty for the PRPs. NCP § 300.515(e)(2)(ii). A state may also be limited in its ability to carry out an independent state-ordered action if that action physically conflicts with an action ordered by EPA, under general principles of federal supremacy.

240. 55 Fed. Reg. 8783 (Mar. 8, 1990). Several commenters suggested that CERCLA § 104(d)(1) may be read in conjunction with CERCLA § 104(c)(4) (relating to the selection of remedial actions) to allow EPA to authorize states to select remedies at specific sites through cooperative agreements or Superfund contracts.

241. During the original passage of CERCLA in 1980, Congress rejected the idea of establishing a program of federal grants to states as the means of cleaning up hazardous waste sites. See Freedman, supra note 23, at 10134 & n.274.

242. NCP § 300.515(f); 55 Fed. Reg. 8783-85 (Mar. 8, 1990).

243. As noted above, where EPA and the state disagree on a remedy selection, a state has the option of withholding its CERCLA § 104 assurances,thereby preventing the remedy from proceeding as a Fund-financed action (although EPA could initiate an enforcement action), and for EPA enforcement actions, a process is available for states to challenge a decision by EPA to waive an ARAR (CERCLA § 121(f)(2)(B)). These are, however, extreme measures, and the Agency's goal is to reach agreement with states through the normal remedy selection process. The final rule specifically sets out a procedure for dispute resolution with the states in order to foster agreement on ARARs. NCP § 300.515(d)(3), .515(d)(4); 55 Fed. Reg. 8781-82 (Mar. 8, 1990).

244. These proposed "changes" could include the attainment of a particular state standard that EPA found not to be an ARAR, or waived.

245. As noted above, a state's ability to proceed unilaterally where EPA is undertaking a CERCLA response action may be limited. See supra note 239.

246. Proposed NCP § 300.515(a)(3), 53 Fed. Reg. 51511 (Dec 21, 1988).

247. E.g., NCP § 300.505(d)(4); see 55 Fed. Reg. 8776-77 (Mar. 8, 1990).

248. The exception to this formula is where the State operated the site, at the time of disposal, in which case the state's cost share may be 50 percent or greater. CERCLA § 104(c)(3)(C)(ii), 42 U.S.C. § 9604(c)(3)(C)(ii), ELR STAT. CERCLA 013.

249. NCP § 300.510(c)(1).

250. CERCLA § 104(c)(3), 42 U.S.C. § 9604(c)(3), ELR STAT. CERCLA 013; 55 Fed. Reg. 8778 (Mar. 8, 1990).

251. NCP § 300.435(f)(4).

252. 55 Fed. Reg. 8737 (Mar. 8, 1990).

253. S. REP. NO. 11, 99th Cong., 1st Sess. 20-21 (1985); S. REP. NO. 631, 98th Cong., 2d Sess. (1984); see discussion at 55 Fed. Reg. 8737 (Mar. 8, 1990).

254. NCP § 300.435(f)(3)(ii).

255. 55 Fed. Reg. 8738-39 (Mar. 8, 1990).

256. Id. at 8800. Of course, even after the remedy is selected, certain types of documents may still be added to the record, as discussed below.

257. Id.

258. NCP § 300.815(a).

259. NCP § 300.820(a)(1).

260. NCP § 300.800(b)(1).

261. NCP § 300.805(a). However, certain classes of documents need not be located at or near the site (e.g., general guidance documents, published references, chain of custody forms). See NCP § 300.805(a)(1)-.805(a)(6).

262. NCP § 300.800(a).

263. NCP § 300.810(a)(1)-.810(a)(5); 55 Fed. Reg. 8800-01 (Mar. 8, 1990).

264. NCP § 300.810(b); 55 Fed. Reg. 8801, 8805 (Mar. 8, 1990).

265. NCP § 300.800(c) and (d).

266. 55 Fed. Reg. at 8800.

267. Id. at 8802.

268. Id. at 8800.

269. Id. at 8805.

270. NCP § 300.825(a) and (c); 55 Fed. Reg. 8807-08 (Mar. 8, 1990).

271. NCP § 300.825(b).

272. 40 C.F.R. § 300.67 (1985).

273. 55 Fed. Reg. 8766-67 (Mar. 8, 1990).

274. NCP § 300.415(m).

275. The distinctions between these types of removal actions are discussed above at supra note 55. See also 53 Fed. Reg. 51409 (Dec. 21, 1988).

276. 55 Fed. Reg. 8767 (Mar. 8, 1990).

277. NCP § 300.415(m)(4)(iii).

278. NCP § 300.430(c)(2)(iv); 55 Fed. Reg. 8769 (Mar. 8, 1990). See generally CERCLA § 117(e), 42 U.S.C. § 9617(e), ELR STAT. CERCLA 043; 54 Fed. Reg. 49848 (Dec. 1, 1989); 53 Fed. Reg. 9736 (Mar. 24, 1988).

279. NCP § 300.430(c).

280. NCP § 300.430(f)(3).

281. NCP §§ 300.430(f)(3)(i)(C); 55 Fed. Reg. 8770 (Mar. 8, 1990).

282. NCP § 300.820(b)(2).

If EPAdecides to adopt a final ROD that differs significantly from the proposed plan and those changes could not have been reasonably anticipated based on existing information, additional comment will be solicited on a revised proposed plan.²⁸³

283. NCP § 300.430(f)(3)(ii)(B).

284. NCP § 300.435(c)(1).

285. NCP § 300.435(c)(2)(ii).

286. NCP § 300.435(c)(2)(i). Both the preamble to the final rule and the preamble to the proposed rule discuss when an ESD, as compared with a ROD amendment, would be appropriate. See 55 Fed. Reg. 8772-73 (Mar. 8, 1990); 53 Fed. Reg. 51451-52 (Dec. 21, 1988); see also Interim Final Guidance on preparing Superfund Decision Documents, EPA/OSWER Directive No. 9355.3-02 (May 1989).

287. NCP § 300.825(b).

288. NCP § 300.825(c); 55 Fed. Reg. 8773 (Mar. 8, 1990).

289. The issue of whether a local government comes within CERCLA § 107(a)(4)(A) or (B) was not decided by the NCP, but rather was left to the courts. See 55 Fed. Reg. 8799 (Mar. 8, 1990).

290. District courts have issued interpretations at both ends of the spectrum on this issue. Compare General Elec. Co. v. Litton Bus. Sys., 715 F. Supp. 949, 962, 19 ELR 21433, 21438 (W.D. Mo. 1989) (holding that consistency with the NCP "does not necessitate strict compliance with its provisions") and Amland Properties Corp. v. Aluminum Co. of Am., 711 F. Supp. 784, 796, 19 ELR 21180, 21184 (D.N.J. 1989) (rejecting arguments that "substantial compliance" with the NCP is sufficient). The split in the courts on this issue was also discussed in the preamble to the proposed rule; 53 Fed. Reg. 51462 (Dec. 21, 1988).

291. NCP § 300.700.

292. 53 Fed. Reg. 51461 (Dec. 21, 1988).

293. NCP § 300.700(c)(3).

294. NCP § 300.700(c)(4).

295. NCP § 300.700(c)(5)-.700(c)(7).

296. 55 Fed. Reg. 8792-93 (Mar. 8, 1990).

297. There are a number of NCP requirements that do not make sense for private parties, such as the requirements for state assurances (§ 300.510), or other provisions related to use of the Fund. Similarly, there are self-imposed restrictions on governmental actions that are not relevant to private actions, such as the requirement that a site be listed on the NPL before Fund-financed remedial action may be taken (300.425(b)(1)).

298. 55 Fed. Reg. 8793 (Mar. 8, 1990). Note that compliance with these mandates was already necessary under the proposed rule, which required private parties to strictly comply with the detailed provisions of the NCP, including provisions codifying these statutory mandates. See proposed rule § 300.430(f)(3)(ii) (protectiveness and ARARs); .430(f)(3)(iii) (cost-effectiveness and permanence/treatment); and .430(f)(2) (public participation).

299. 55 Fed. Reg. 8794 (Mar. 8, 1990).

300. See id. at 8785-86.

301. NCP § 300.515(e)(2)(i) and (ii). However, the rule maintains the Agency's long-standing position that EPA silence on a state-conducted remedy cannot be construed as EPA concurrence. 55 Fed. Reg. 8786 (Mar. 8, 1990); 53 Fed. Reg. 51458 (Dec. 21, 1988).

302. NCP § 300.520.

303. NCP § 300.515(d)(3)-.515(d)(4); 55 Fed. Reg. 8781-82 (Mar. 8, 1990).

304. 42 U.S.C. § 9622(e)(6); ELR STAT. CERCLA 052; see 55 Fed. Reg. 8783 (Mar. 8, 1990); 54 Fed. Reg. at 10523-24 (Mar. 13, 1989).

305. 55 Fed. Reg. 8688 (Mar. 8, 1990). The rule states that a PRP may be designated as EPA's representative for the purpose of access only where that PRP has agreed to conduct response activities pursuant to an administrative order or consent decree. NCP § 300.400(d)(3).

306. 42 U.S.C. § 9604(a)(1); ELR STAT. CERCLA 052; see 55 Fed. Reg. 8688 (Mar. 8, 1990). CERCLA § 104(a)(1) sets out certain preconditions before a PRP may conduct an RI/FS. The PRP must show that it will carry out the work promptly and properly, and it must agree to reimburse the Fund for any oversight costs.

307. 55 Fed. Reg. 8795 (Mar. 8, 1990).

308. CERCLA § 113(k)(2)(C), 42 U.S.C. § 9613(k)(2)(C), ELR STAT. CERCLA 052; NCP § 300.800(d), (e).

309. NCP § 300.430(f)(1)(ii)(B).

310. 55 Fed. Reg. 8795 (Mar. 8, 1990).

311. NCP § 300.425(d)(6); 55 Fed. Reg. 8699-8700 (Mar. 8, 1990).

312. 55 Fed. Reg. 8699-8700 (Mar. 8, 1990).

313. See Memorandum of Jonathan Z. Cannon, Acting Assistant Administrator for Solid Waste and Emergency Response, Performance of Five-Year Reviews and Their Relationship to the Deletion of Sites From the National Priorities List (NPL) (Superfund Management Review: Recommendation No. 2) (Oct. 30, 1989); Memorandum from Henry L. Longest II, Director, Office of Emergency and Remedial Response, Update to "Procedures for Completion and Deletion of National Priorities List Sites" — Guidance Document Regarding the Performance of Five-Year Reviews (Superfund Management Review: Recommendation No. 2), EPA/OSWER Directive No. 9320.2-3B (Dec. 29, 1989).

314. Reilly, supra note 39, at 7, 1-11.

315. 40 C.F.R. § 300.66(c)(7) (1985); NCP § 300.425(e).

316. CERCLA § 121(c), 42 U.S.C. § 9621(c), ELR STAT. CERCLA 051.

317. See, e.g., CERCLA §§ 105(e), 121(c), 42 U.S.C. §§ 9605(e), 9621(c), ELR STAT. CERCLA 023, 051; 40 C.F.R. § 300.66(c)(8) (1985); NCP § 300.425(e)(3).

318. However, under at least one of the deferral options, all cleanups would have to have been of "CERCLA-quality." 53 Fed. Reg. 51417-18, 51419 (Dec. 21, 1988).

319. 55 Fed. Reg. 8667 (Mar. 8, 1990).

320. Where a federal agency sent wastes to a facility for treatment, storage, or disposal, the agency also may be identified as a PRP under CERCLA.

321. CERCLA § 120(a)(2), 42 U.S.C. § 9620(a)(2), ELR STAT. CERCLA 048. Federal facility cleanups may not be financed by the Fund. See CERCLA § 111(e)(3); Exec. Order No. 12580, § 9(i), 52 Fed. Reg. 2923, ELR ADMIN. MATERIALS 45031 (Jan. 29, 1987).

322. NCP § 300.430(f)(4)(iii), 52 Fed. Reg. 2923 (Jan. 29, 1987), ELR ADMIN. MATERIALS 45031.

323. See Exec. Order No. 12580, § 2(d)-(e), 52 Fed. Reg. 2923 (Jan. 29, 1987), ELR ADMIN. MATERIALS 45031.

324. CERCLA § 120(a)(4) provides: "State laws concerning removal and remedial action, including State laws regarding enforcement, shall apply to removal and remedial action at facilities owned and operated by a department, agency, or instrumentality of the United States when such facilities are not included on the National Priorities List." 42 U.S.C. § 9620(a)(4), ELR STAT. CERCLA 048.

325. NCP § 300.600.

326. NCP § 300.615(c)-(e).

327. CERCLA § 104(b)(2), 42 U.S.C. § 9604(b)(2), ELR STAT. CERCLA 013; NCP § 300.615(c)(2), (d)(2), (d)(3), (e).

328. NCP § 300.175.

329. NCP § 300.105(c)(1), .110.

330. NCP § 300.105(c)(2), .115.

331. 53 Fed. Reg. 51962 (Dec. 23, 1988).

332. 53 Fed. Reg. 48218 (Dec. 21, 1988).

333. The revised off-site policy appears in EPA/OSWER Directive No. 9834.11 (Nov. 13, 1987).

20 ELR 10222 | Environmental Law Reporter | copyright © 1990 | All rights reserved