EPA Proposes Court-Ordered Contingency Plan Revisions Under "Superfund"; Stresses "Flexible" Cleanup Standards

F. L. McChesney

The National Contingency Plan (NCP) is the federal government's handbook governing responses to oil and hazardous substance releases endangering human health and the environment. Established by the 1972 Amendment's to the Federal Water Pollution Control Act (FWPCA)¹ as a framework for cleaning up spills of oil and hazardous substances into waterways, it was required to be revised by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)² to address onshore spills of toxic substances and releases from hazardous waste disposal sites. CERCLA ties the methods of government response, the recovery of response monies drawn from the "Superfund" established by CERCLA, and the liability of responsible parties to the procedural and substantive requirements of the NCP.

The NCP was to have been revised by the Environmental Protection Agency (EPA)³ in June 1981, but EPA, hampered by administrative reorganization and Executive Order No. 12291's requirement for Office of Management and Budget review of federal regulations, failed to meet the statutory deadline. Concerned that EPA's inaction was stalling the Superfund program because of the absence of cleanup standards and procedures, the Environmental Defense Fund (EDF) and the State of New Jersey filed suit to compel promulgation of the plan. The district court agreed that EPA has a mandatory duty to issue the NCP, and set a publication timetable. On March 12, in keeping with the court's schedule, EPA proposed a revised NCP.⁴ The final plan is scheduled to be published by May 28.

Background

CERCLA, often referred to as the "Superfund Act," was enacted in 1980 in response to growing concern over the hazardous waste disposal problem.⁵ Previously, EPA's primary vehicle for addressing hazardous substance releases was through enforcement actions under the Resource Conservation and Recovery Act⁶ and the FWPCA.⁷ CERCLA preserves the existing sources of liability of parties responsible for releases and encourages private cleanup.⁸ In addition, it authorizes direct government responses to releases of hazardous substances, either through short term "removal" actions or longer term "remedial" actions.⁹ To provide sufficient financial resources for government cleanup of hazardous substance releases and to compensate those suffering economic damages from such releases, the Act also created a $1.6 billion Hazardous Substance Response Trust Fund or "Superfund."¹⁰ The NCP is central to implementation of this scheme. CERCLA requires that government response actions, the establishment of liability for releases, and payments from the fund must generally be consistent with the NCP.¹¹

Section 105 of CERCLA requires EPA to revise the NCP originally implemented under § 311(c)(2) of the Federal Water Pollution Control Act. The existing NCP governs cleanup of oil and hazardous substance discharges into navigable waters.¹² While it encourages state and private cleanup, it establishes duties for various federal agencies in response to discharges. Most significantly, it provides special emergency authority and procedures for responses to marine disasters that create a substantial threat of a pollution hazard because of a discharge or imminent discharge of a large quantity of oil or hazardous substances.

The revised NCP, intended to effectuate new responsibilities created by CERCLA and to give added consistency and cohesiveness to response planning and actions, will apply to releases on land as well as those into navigable waters.¹³ Like the existing plan, it must delineate the roles of federal, state, and local governments, as well as nongovernmental entities. While it must retain the procedures for responding to oil spills and marine disasters, [12 ELR 10041] § 105 requires the revised plan to include a new "national hazardous substance response plan," to establish procedures and standards for responding to onshore releases of hazardous substances. Section 105 also requires that the plan include methods for discovering and investigating facilities where hazardous substances have been disposed of or are located, for evaluating and remedying releases, and for identifying cost-effective removal or remedial actions.¹⁴

Additionally, § 105 requires EPA to assign priorities among known releases such as unsafe hazardous waste dump sites.¹⁵ Priorities among releases are based upon criteria to be developed by EPA which take into account the

relative risk or danger to public health or welfare or the environment … taking into account to the extent possible the population at risk, the hazard potential of the hazardous substances at such facilities, the potential for contamination of drinking water supplies, the potential for direct human contact, the potential for destruction of sensitive ecosystems, State preparedness to assume State costs and responsibilities, and other appropriate factors.¹⁶

States have the primary role in determining priorities among releases. Based on a "hazard ranking system" which reflects the criteria,¹⁷ each state assigns priorities to known releases within the state and submits the list to EPA. The Agency reviews the states' lists to ensure uniform application of the ranking system and consolidates them into the National Priority List (NPL), which must include at least 400 high priority releases. To ensure that all states benefit from the program, at least one site from each state is to be ranked in the top 100 "to the extent practicable."¹⁸ EPA recently issued an interim list of 115 hazardous waste sites to receive top cleanup priority until the final list of 400 is completed.¹⁹ Although CERCLA requires the NPL to be published as part of the NCP, EPA does not expect to publish the list until December 1982.

EDF v. Gorsuch

EPA was required to revise the NCP by June 9, 1981.²⁰ While it produced several drafts including a 130-page version sent to the Office of Management and Budget for review in October 1981, it failed to meet the deadline. As a result, EDF and New Jersey sought, in Environmental Defense Fund, Inc. v. Gorsuch,²¹ a court order compelling EPA to revise the NCP and to promulgate emergency guidelines for responses to releases constituting an "imminent and substantial endangerment" to the public health.

The district court, in a strongly worded opinion, found no excuse for EPA's inaction. It rejected EPA's argument that since it "has 'effectively exercised' CERCLA's authority under the statutory scheme on an 'interim basis,'" a revised NCP "is not a necessary precedent to proceeding with an effective response program."²² The court agreed that Congress expected response actions to occur prior to the revision of the NCP. But the legislative history indicated that response actions after the promulgation deadline were to be made pursuant to a revised NCP that was subject to rulemaking procedures. The court also recognized, as did the Agency itself,²³ that the revised NCP is the "cornerstone of Superfund response actions," noting that EPA's inaction has impaired the ability of the states to meet their responsibilities under CERCLA.²⁴ Thus, the court found that EPA had violated its non-discretionary duty to revise the NCP within the statutory deadline. It ordered EPA to produce a proposed NCP within 30 days and a final NCP within 90 days,²⁵ but subsequently granted an additional 15 days for public comment.²⁶ Under the new court order the final revised NCP must be published by May 28.

The Proposed NCP

The proposed NCP largely mirrors the administrative procedures established under the existing NCP for coordinating federal, state, and local responses to releases or threatened releases of oil and hazardous substances. At the top of the administrative hierarchy is the National Response Team, which consists of representatives of several federal agencies²⁷ and is responsible for national planning, coordinating federal, state, and private responses, and reviewing responses.²⁸ The plan also calls for 10 Regional Response Teams, each of which is responsible for planning and preparation before response actions are taken and is available for coordination and advice during responses.²⁹ In addition, each develops a regional contingency [12 ELR 10042] plan that includes information on facilities and resources available during response actions.³⁰ The on-scene coordinator (OSC), appointed by the lead agency — either EPA³¹ or the United States Coast Guard,³² has responsibility for directing response efforts financed by the federal fund and coordinating state and private cleanup efforts.³³ In the case of a major disaster, the OSC may call upon the National Strike Force, which consists of emergency teams trained to supervise pollution emergencies.³⁴ The nerve center of the system is the National Response Center, which receives notices of discharges or releases and relays information to the appropriate OSC.³⁵

The heart of the proposed revised NCP is Subpart F, entitled Hazardous Substance Response.³⁶ It establishes criteria and methods for determining the extent of responses under CERCLA to hazardous substance releases. The proposed plan stresses private cleanup actions in order to conserve fund monies. Indeed, fund-financed actions are authorized only where the OSC determines that the site owner or responsible party will not properly clean up the release.³⁷ Subpart F also encourages state participation in cleanup actions.³⁸

The general pattern of response to releases begins when EPA or the Coast Guard discovers or is notified of a release.³⁹ The OSC then conducts a preliminary assessment of the release to evaluate the magnitude of the hazard, identify its source and nature, and identify responsible parties. Unless there is a need for an emergency response, the OSC then begins an investigation to determine the appropriate response.⁴⁰ Subpart F prescribes two general types of responses to releases: "removal actions" and "remedial actions."

Removal Actions

Removal actions are defined in CERCLA as

the cleanup or removal of released hazardous substances from the environment, [including] such actions as may be necessary to be taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release.⁴¹

In addition to cleanup measures, removal actions include short-term measures to provide alternative water supplies, security fencing, temporary evacuations, and otherwise protect public health and the environment. Removal actions are limited to a fund obligation of $1 million and six months duration unless continued response actions are needed to prevent immediate risk to the public health or the environment.⁴²

The proposed NCP creates an additional category not mentioned in the Act. It divides removal actions into "immediate" and "planned" removals. Immediate, i.e., emergency, removal provides a prompt response if needed to "prevent or mitigate immediate and significant risk of harm" to human life or the environment.⁴³ Immediate removal would be appropriate, for example, to respond to fires or explosions, human, animal, or food-chain exposure to acutely toxic substances, contamination of drinking water supply, or other similarly acute situations.⁴⁴

Planned removal is appropriate when a prompt but not immediate response is needed. Planned removals may only be taken when a release is listed as a national priority or, at an unranked site, when conditions are so serious as to warrant immediate removal. Based on the recognition that an ounce of prevention is worth a pound of cure, the plan authorizes the taking of planned removals only if there will be a substantial cost savings over the more deliberate remedial actions,⁴⁵ thus preserving fund monies. In keeping with the plan's emphasis on state participation, planned removals can only be taken if the state agrees to provide at least 10 percent of project expenses.⁴⁶

Remedial Actions

Remedial actions, which are authorized only at sites listed on the NPL,⁴⁷ are intended to provide a "permanent remedy … instead of or in addition to removal actions."⁴⁸ The appropriate extent of remedial actions is determined through a decision-making process designed to find the most cost-effective remedy. Remedial actions begin with an investigation to determine the nature and extent of the release. Based on this information, the lead agency, or responsible party in the case of private cleanup actions, assesses whether the threat can be mitigated by controlling the source of contamination or whether additional [12 ELR 10043] off-site controls are needed.⁴⁹ It then develops a limited number of alternative plans, including a no-action alternative, and makes a detailed analysis of costs, of environmental effects, and of acceptable engineering practices for each alternative.⁵⁰ Finally, the lead agency or responsible party selects the remedial alternative which is most cost-effective, i.e., the lowest-cost alternative that is technologically feasible and reliable, which effectively mitigates and minimizes damage and which adequately protects the public health and environment.⁵¹ To the end of retaining flexibility, the proposed NCP does not require a formal cost-benefit analysis that might narrowly limit the choice of alternatives.⁵²

Before any federally financed remedial actions may be taken, § 104(c)(3) of CERCLA requires the affected state to enter into a cooperative agreement with EPA assuring that it will provide future maintenance after federal responses are completed, provide an acceptable hazardous waste disposal facility, and agree to pay 10 percent of the costs of remedial actions or at least 50 percent if a state-owned facility is responsible for the release.⁵³

The most controversial aspect of the proposed NCP is its standards for determining the appropriate extent of remedy, i.e., "how clean is clean." In an earlier draft of the revised NCP, EPA suggested a "best scientific judgment" standard that required consideration of the types of chemicals and pathways involved, the affected environment, applicable federal or state permit standards⁵⁴ or water quality criteria, and the availability of cleanup technology. This option was rejected in favor of an even more "flexible" standard — the "cost-effectiveness" test — that takes into account the unique situation at each release site and the limited agency experience in remedying releases.

A problem with earlier drafts was the existence of a "double standard" to be applied to fund-financed vis-a-vis private cleanups. This problem was addressed by requiring application of the same cost-effectiveness standard before commencement of every remedial action. However, § 104(c)(4) of CERCLA mandates the consideration of an additional factor in planning fund-financed cleanups.⁵⁵ In determining the appropriate extent of the remedy in these cases, the OSC must balance the need to protect the public health and environment against the amount of money left in the fund to respond to other releases. Thus, releases that are discovered while fund balances are high may be the subject of substantially more ambitious cleanup efforts than those discovered later. To this extent, the double standard survived.

Conclusion

The proposed revised NCP, while it is quiteconcise and tracks the statute closely, has been criticized for its notable lack of specific standards. The plan's "cost-effectiveness" test has been criticized for failing to set specific standards for effective cleanup by the federal government and industry.⁵⁶ In the preamble to the proposed plan, EPA explained that as it becomes more experienced in cleaning up sites, it may choose to publish more specific standards for the extent of cleanup. Meanwhile, EPA will apply whatever criteria are appropriate in determining the cleanup level of a particular release, along with other technological and environmental factors.⁵⁷

The fund-balancing requirement, while it may meet the need to preserve fund monies, is also subject to criticism. Coupled with the lack of standards to determine "how clean is clean," it makes it progressively harder to assure adequate cleanup as the fund is depleted. In theory, the $1.6 billion to be accumulated in the "Superfund" by 1985 should never be depleted because as sites are cleaned up, fund monies spent will be recovered from responsible parties, replenishing the fund. However, it is likely that many sites will be cleaned up where no recovery is possible, for example, where the responsible party is judgment-proof. Thus, the fund-balancing requirement will come into play and limit the federal govenrment's cleanup efforts.

Implementation of the Act has been hampered by the delay in revising the NCP. For example, defendants in a pending lawsuit to recover state costs of removal and remedial actions have argued that a revised NCP is necessary before liability for state response costs can be determined.⁵⁸ In addition, the development of many state programs for responding to hazardous waste problems has undoubtedly been retarded by the inertia at the federal level.⁵⁹

However, several state cooperative plans have been approved, and EPA has begun action on the 115 interim priority sites. It has sent letters to responsible parties urging voluntary cleanup, and has recently committed $30 million of the $258 million available in the fund for preliminary work on 30 priority sites.⁶⁰ If EPA can meet the court-ordered deadline and finalize the NCP before June, the CERCLA hazardous waste site cleanup program should gain needed momentum across the country.

1. FWPCA § 311, 33 U.S.C. § 1321, ELR STAT. & REG. 42132.

2. 42 U.S.C. §§ 9601-9657, ELR STAT. & REG. 41941.

3. The Council on Environmental Quality issued the existing NCP, but Exec. Order No. 12316 transferred authority to EPA to revise the plan.

4. 47 Fed. Reg. 10972 (Mar. 12, 1982).

5. See Comment, Superfund at Square One: Promising Statutory Framework Requires Forceful EPA Implementation, 11 ELR 10101 (1981).

6. RCRA § 7003, 42 U.S.C. § 6973, ELR STAT. & REG. 41922. CERCLA continues to provide for enforcement action. See CERCLA § 106, 42 U.S.C. § 9606, ELR STAT. & REG. 41947.

7. FWPCA § 307, 33 U.S.C. § 1317, ELR STAT. & REG. 42129. In addition, EPA could seek recovery through federal common law nuisance actions. See Comment, Hazardous Waste: EPA, Justice Invoke Emergency Authority, Common Law in Litigation Campaign Against Dump Sites, 10 ELR 10034 (1980).

8. CERCLA § 107, 42 U.S.C. § 9607, ELR STAT. & REG. 41947.

9. CERCLA § 104, 42 U.S.C. § 9604, ELR STAT. & REG. 41945.

10. CERCLA subch. II, §§ 221-232, 42 U.S.C. §§ 9631-9641, ELR STAT. & REG. 41953.

11. CERCLA §§ 105, 107(a)(4)(A), 111(a), 42 U.S.C. §§ 9605, 9607(a)(4)(A), 9611(a), ELR STAT. & REG. 41946, 41947, 41950.

12. The existing plan, which remains in effect until the revised plan is promulgated, may be found at 40 C.F.R. pt. 1510. The revised NCP retains the authority to respond to oil discharges. See 47 Fed. Reg. at 10987 (Mar. 12, 1982) (to be codified at 40 C.F.R. §§ 300.51-300.58).

13. The existing NCP applies to "discharges," i.e., oil spills, but the revised NCP will apply to a broader range of actions including leaching and disposing into the "environment," which is defined by § 101(8) of CERCLA as

the navigable waters of the United States, the waters of the contiguous zone, and the ocean waters, … and (b) any other surface water, ground water, drinking water supply, land surface and subsurface strata, or ambient air within the United States or under jurisdiction of the United States.

42 U.S.C. § 9601(8), ELR STAT. & REG. 41943. See also 47 Fed. Reg. at 10980 (Mar. 12, 1982) (to be codified at 40 C.F.R. § 300.6). CERCLA also requires the EPA Administrator to designate hazardous substances, in addition to those already designated under the FWPCA and the Solid Waste Disposal Act, that "may present substantial danger to the public health or welfare or the environment." CERCLA § 102, 42 U.S.C. § 9602, ELR STAT. & REG. 41944.

14. 42 U.S.C. § 9605, ELR STAT. & REG. 41946.

15. 42 U.S.C. § 9605(8)(B), ELR STAT. & REG. 41947.

16. 42 U.S.C. § 9605(8)(A), ELR STAT. & REG. 41947.

17. The Hazard Ranking System is designed to provide an estimate of the relative severity of releases by considering the relative hazardous potential of substances, the rate each will affect the environment, and the severity and magnitude of the potential effects, and by identifying the pathways of exposure. See 47 Fed. Reg. at 10975 and 10991.

18. See 126 CONG. REC. H9460-61 (daily ed. Sept. 23, 1980) (statement of Rep. Cleveland).

19. See HAZARDOUS WASTE REP., vol. 3, no. 7, at 3 (Nov. 2, 1981).

20. Under § 105, EPA was required to revise and republish the NCP "after notice and opportunity for public comment," within 180 days after the enactment of CERCLA. 42 U.S.C. § 9505, ELR STAT. & REG. 41946. It was also required by § 106 to publish emergency guidelines for statement actions where there may be an imminent and substantial endangerment to the public health, welfare, or the environment. 42 U.S.C. § 9606, ELR STAT. & REG. 41947.

21. 12 ELR 20376 (D.D.C. Feb. 12, 1982).

22. 12 ELR at 20377.

23. The court noted that Administrator Gorsuch referred to the NCP as the "cornerstone of Superfund response actions" in a statement before the Subcommittee on Commerce, Transportation, and Tourism. 12 ELR at 20377 n.7.

24. For example, the court noted that states must submit priorities for remedial actions based on criteria to be included in the revised NCP. 12 ELR at 20377 n.8.

25. The court also ordered EPA to publish the emergency guidelines within 90 days. The court did not regard the requirement for Office of Management and Budget review of the NCP as an impediment to meeting the schedule. 12 ELR at 20377 n.9.

26. Environmental Defense Fund, Inc. v. Gorsuch, 12 ELR 20401 (D.D.C. Mar. 19, 1982).

27. 47 Fed. Reg. 10984 (Mar. 12, 1982) (to be codified at 40 C.F.R. § 300.32).

28. Id.

29. Id.

30. Id. at § 300.42, 47 Fed. Reg. at 10987.

31. EPA must provide OSCs for discharges or releases into or threatening the inland zone and for all planned removals and remedial actions. Id. at § 300.33(a), 47 Fed. Reg. at 10985. See text at notes 41-55, infra.

32. The Coast Guard must provide OSCs for oil discharges and for immediate removals of releases into or threatening the coastal zone except for releases and discharges from hazardous waste management facilities. Id. See text at note 43, infra.

33. Id. at § 300.33, 47 Fed. Reg. at 10985.

34. Id.

35. Id. at § 300.35, 47 Fed. Reg. at 10986.

36. Id. at §§ 300.61-300.70, 47 Fed. Reg. at 10990-94.

37. Id. at § 300.61(b), 47 Fed. Reg. at 10990.

38. Id. at §§ 300.65(e), 300.66(a)(3), and 300.67(b), 47 Fed. Reg. at 10991-92.

39. Id. at § 300.62, 47 Fed. Reg. at 10990.

40. Id. at §§ 300.63, 300.65, 47 Fed. Reg. at 10990, 10991.

41. CERCLA § 101(23), 42 U.S.C. § 9601(23), ELR STAT. & REG. 41943.

42. 47 Fed. Reg. 10991 (Mar. 12, 1982) (to be codified at 40 C.F.R. § 300.66).

43. Id. at § 300.64(a), 47 Fed. Reg. at 10990.

44. Id.

45. Id. at § 300.66(b)(1), 47 Fed. Reg. at 10991.

46. Id. at § 300.66(b)(3), 47 Fed. Reg. at 10991 Under the Act, the state is only required to pay a percentage of the costs of remedial, not removal, responses. CERCLA § 104(c)(3), 42 U.S.C. § 9604(c)(3), ELR STAT. & REG. 41945.

47. Id. at § 300.67(a), 47 Fed. Reg. at 10992.

48. CERCLA § 101(24), 42 U.S.C. § 9601(24), ELR STAT. & REG. 41944.

49. 47 Fed. Reg. 10992 (Mar. 12, 1982) (to be codified at 40 C.F.R. § 300.67(f)). In some instances "initial remedial" measures are taken before the appropriate remedial action is chosen if needed to limit exposure or threat of exposure to a significant health or environmental hazard, if cost-effective. Id. at § 300.67(e), 47 Fed. Reg. at 10992.

50. Id. at § 300.67(g) & (h), 47 Fed. Reg. at 10993.

51. Id. at § 300.67(j), 47 Fed. Reg. at 10993.

52. See 47 Fed. Reg. at 10978 (Mar. 12, 1982).

53. 42 U.S.C. § 9604(c)(3), ELR STAT. & REG. 41945.

54. Such standards include, for example, RCRA, NPDES, and dredge and fill permit standards.

55. 42 U.S.C. § 9604(c)(4), ELR STAT. & REG. 41945.

56. See, e.g., remarks of commentators quoted in HAZARDOUS WASTE REP., vol. 3, no. 17, at 4 (Mar. 22, 1982); ENV'T REP. 1475 (Mar. 19, 1982).

57. See 47 Fed. Reg. at 10978 (Mar. 12, 1982).

58. See United States v. Reilly Tar and Chemical Co., No. 4-80-469 (D. Minn. amended complaint filed Sept. 25, 1981). Pleadings in this case are summarized at ELR PEND. LIT. 65739. See also City of Philadelphia v. Stepan Chemical Co., No. 80-0851 (E.D. Pa. filed Mar. 5, 1981). Pleadings in this case will be summarized in the May 1982 issue, ELR Doc. [771].

59. EPA's first quarterly report describing Superfund implementation indicates that EPA is behind schedule in initiating remedial actions and obligating fund monies. See Inside EPA, vol. 3, no. 11, at 12 (Mar. 19, 1982).

60. EPA Journal, Jan./Feb. 1982 at 30.