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Issue

Volume 18, Issue 12 — December 1988

Articles

CERCLA Compliance With RCRA: The Labyrinth

by Stephen Merrill Smith

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

Effects of the Anti-Deficiency Act on Federal Facilities' Compliance With Hazardous Waste Laws

by Rami S. Hanash

Editors" Summary: Congress is a body often at conflict with itself, and disputes between its authorizing committees and its appropriating committees are among the most pervasive and antagonistic. To administer their programs, executive branch agencies need both authorizing legislation from the authorizing committees and appropriated funds from the appropriating committees. Often, political realities are such that the two sets of committees disagree about the proper way to run the executive agencies. At the same time, executive agencies are sometimes not shy about exaggerating the differences among their congressional overseers as a means of pursuing their own policy preferences.

To this general backdrop of mixed signals, add several facts specific to environmental law: authorizing statutes require federal agencies to control their pollution, congressional appropriators tend to want to control spending tightly on projects like environmental cleanup where benefits are largely local, and the executive branch's organization is a fractured one in which mission-oriented agencies like the Departments of Defense and Energy often see environmental protection as secondary to their own missions. The result can be a confusing set of options and constraints for those interested in real environmental cleanup at the federal government's polluting installations. In this Article, the author sorts through the applicable law and suggests ways to resolve the dilemma between environmental cleanup and limmited agency funds.

Dialogue

The Costs of Environmental Alternative Dispute Resolution

by Edward Brunet

In his recent Article advocating greater use of alternative dispute resolution (ADR) techniques by the Environmental Protection Agency (EPA) in enforcement actions, Richard Mays thoroughly analyzed the benefits of ADR but failed to adequately discuss its drawbacks.1 This Dialogue identifies problems associated with Agency promotion of ADR and recommends that the status quo of infrequent and highly selective use of ADR techniques is entirely healthy. The Dialogue will identify and analyze four myths underlying Mays' conclusion that ADR should play a key role in environmental enforcement.