CERCLA Compliance With RCRA: The Labyrinth

December 1988
Citation:
18
ELR 10518
Issue
12
Author
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.

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

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CERCLA Compliance With RCRA: The Labyrinth

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