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