The Pursuit of Consistent Decision Making Under CERCLA

William N. Hedeman, Jr.

Mr. Hedeman is Director of the EPA Office of Emergency and Remedial Response.

The EPA Journal recently asked six respected observers what their response would be to the question "how clean is clean at a hazardous waste site?" They received six different answers. The Environmental Protection Agency's (EPA's) decisions in regard to selecting remedies at hazardous waste disposal sites have emerged from experience, because nowhere do existing law or Agency policy define the level of cleanup that must be achieved during a response action. In order to pursue more consistent decision making at a hazardous waste site, the Agency is considering several policies and guidance, which taken together represent movement toward broad uniformity in the decision making process.

Background

Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund)¹

Section 104 of CERCLA grants broad authority to the President when responding to a release or substantial threat of a release of any hazardous substance or pollutant or contaminant in the environment. CERCLA authorizes the President to:

act, consistent with the national contingency plan, to remove or arrange for the removal of, and provide for remedial action relating to such hazardous substance, pollutant, or contaminant at any time … or take any other response measures consistent with the national contingency plan which the President deems necessary to protect the public health or welfare or the environment.²

CERCLA includes limitations on the exercise of the removal and remedial authorities. Section 104(c)(1) limits removal actions to $1 million or 6 months unless certain enumerated conditions exist. Section 104(c)(3) and (4) require the affected state to enter into a cost-sharing cooperative agreement or contract with the President and to select a cost-effective remedy that provides a balance between the need for response at the facility under consideration and the availability of money in the Hazardous Substances Trust Fund (the Fund)³ to respond to other sites.

Section 106 of CERCLA authorizes the President to secure such relief as may be necessary to abate the danger or threat when there may be an imminent and substantial endangerment to public health, welfare or the environment because of an actual or threatened release of a hazardous substance.

While Superfund provides the authority to respond to or abate a release or threat of release of a hazardous substance, pollutants, or contaminants when it is necessary to protect the public health, welfare or the environment and speaks of a cost-effective response, it does not define the desired level of cleanup.

The National Contingency Plan (NCP)⁴

The NCP establishes the process for determining appropriate removal and/or remedial actions at Superfund sites. Section 105 of CERCLA authorizes the President to revise the NCP from time to time. It was last revised on July 16, 1982.⁵

For purposes of the current Plan, EPA established two limited categories of situations in which removal activities were authorized. The current Plan imposes restrictions on the exercise of the statutory authority.First, the lead agency is authorized under § 300.65 to conduct "immediate removal" activities when it determines that action is necessary to prevent or mitigate an immediate and signficiant risk of harm to human life or health or to the environment. Several examples of situations which would pose such risks are included in this section. The authority to undertake immediate removal activities is not dependent on whether the release is included on the National Priorities List (NPL). Second, under § 300.67, the lead agency is authorized to undertake "planned removal" actions when it determines either that continuation of an immediate removal will result in a substantial cost savings, or, that the public or environment will be at risk from exposure to hazardous substances if response is delayed at a release not on the NPL. Again, as with § 300.65, the Plan cites examples of factors the Agency will use in determining whether a planned removal is warranted. Approval of planned removal [14 ELR 10445] activities is conditioned upon, among other things, assurances that the affected State would share the costs of the activity; no such State cost-share is required for immediate removal activities.

Section 300.68 of the current NCP provides methods and criteria for determining the appropriate extent of remedial action. These provisions are organized to reflect the normal sequence for taking remedial action at a site, including discussion of how to plant remedial actions, how to array alternatives, and how to select the cost-effective alternative from among them.

The NCP provides factors to be considered in determining whether an immediate removal, planned removal, or remedial action is appropriate. It also provides for the selection of a cost effective remedial alternative that provides adequate protection of public health, welfare and the environment. However, the NCP as revised, like CERCLA, does not provide guidance on what degree of cleanup must be achieved by a response action during CERCLA cleanups.

The Problem

There is no definitive guidance available defining what the desired level of cleanup should be and there is a general lack of guidance on the processes involved in determining and implementing Superfund responses. Remedial actions at sites must be cost-effective and must provide adequate protection of public health, welfare and the environment. Difficulties arise when one attempts to define what "adequate protection" is or, in other words, what the desired level of cleanup should be. Engineers design their technologies to meet a certain goal or standard; if there is no goal or standard, their job becomes much more difficult. At the same time, however, it must be recognized that a certain amount of site-by-site discretion will always be needed in developing the engineering and technical aspects of remedies at Superfund sites. In the end, the public must be assured that the remedies selected will provide an adequate protection of public health, welfare and the environment.

Although the NCP provides methods and criteria for determining the appropriate remedy in a response action, further guidance is needed to provide a concise description of the necessary steps leading to the implementation of response actions. This type of guidance will provide for increased consistency in the decision making process for Superfund sites.

The solution, therefore, is to develop guidance that establishes those standards that will be considered in achieving the desired level of cleanup; and also guidance that describes the necessary steps leading to the implementation of response actions. This will allow EPA to pursue a course of consistent decision making.

The following policy initiatives illustrate how EPA is pursuing a course of consistent decision making. These policies and guidance are related efforts, and some aspects of one policy are incorporated into other policies.

Policy Initiatives

CERCLA Compliance With Other Environmental Statutes:

* Off-Site CERCLA Response Actions. Section 101(24) of CERCLA enunciates a policy against off-site transport of hazardous substances. They are to be kept on-site unless transport to another facility is more cost-effective than other remedial actions, will create new capacity to manage hazardous substances in compliance with Subtitle C of the Resource Conservation and Recovery Act (RCRA),⁶ or is necessary to protect public health or welfare or the environment from a present or potential risk which may be created by the continued presence on-site of such substances. Section 104(c)(3)(B) requires states to make assurances regarding the availability of hazardous waste disposal facilities that are in compliance with Subtitle C of RCRA, in the event that off-site treatment, storage, or disposal of hazardous substances is to be used in any remedial action.

The Office of Solid Waste and Emergency Response (OSWER) has issued a policy⁷ that addresses compliance with other environmental laws when CERCLA responses require wastes to be removed from the site and disposed of elsewhere. That policy deals with the interaction between RCRA and CERCLA of off-site treatment, storage or disposal of hazardous substances. The general principle is that all hazardous substances transported off-site should be taken to a hazardous waste management facility that either has a RCRA permit or has interim status under § 3005(e) of RCRA. Second, the off-site alternative must be cost-effective in comparison to other response actions that would also provide adequate protection of public health, welfare and the environment. Third, if a RCRA compliance inspection has not been completed within the last 12 months, a new inspection must be completed before any hazardous waste management facility can receive hazardous substances from a CERCLA-funded response. The inspection must demonstrate that there are no signiicant violations that affect the satisfactory operation of the facility. This decisioin reflects the conclusion that the provision in §§ 101(24) and 104(C)(3)(B) evidenced Congressional intent that any off-site treatment, storage, or disposal of hazardous substances in CERCLA remedial actions be conducted at facilities that are in compliance with Subtitle C of RCRA.

Removal actions involving off-site transport of hazardous substances also are covered by this policy, although the requirement for inspection is not applicable to removal actions due to time constraints. However, even for removal action, Agency policy encourages transport of hazardous substances to hazardous waste management [14 ELR 10446] facilities that have been previously inspected and found to be acceptable.

* On-Site CERCLA Response Actions. The Agency is currently considering a policy on the applicability of the standards, criteria, advisories, and guidance of federal and state environmental and public health statutes to on-site response actions taken pursuant to §§ 104 and 106 of CERCLA. The policy under consideration divides environmental requirements of other federal and state laws into two categories: (1) those standards that are "applicable or relevant," which must be met unless one of five circumstances exists; and (2) other federal and state criteria, advisories and guidance, which are to be considered in developing that remedy. Generally, "applicable" standards are those that would be legally applicable absent CERCLA actions. "Relevant" standards are those designed to apply to problems sufficiently similar to those encountered at CERCLA sites that their application is appropriate, although not legally required. Standards are also relevant if they would be legally applicable to the CERCLA cleanup but for jurisdictional restrictions associated with the requirement.For example, while RCRA site closure regulations might not be legally applicable to a "typical" CERCLA facility that ceased operations prior to the effective date of RCRA, these regulations would generally be relevant to a determination of what type of capping or monitoring would be necessary to adequately protect health and the environment. Similarly, while RCRA may not give jurisdiction to require monitoring or corrective action with respect to a plume of contaminated groundwater that extends beyond a facility's boundaries, RCRA groundwater corrective action requirements may be relevant in determining when corrective action is necessary to adequately protect public health and the environment.

In determining the appropriate remedy as it relates to other federal standards, the first step is to consider the extent to which the standards are, in fact, applicable or relevant to the unique circumstances at the site. Recognizing that the environmental standards under RCRA were developed to regulate currently active hazardous waste disposal operations and facilities, some Superfund sites involve situations in which the RCRA regulations would neither be applicable, nor perhaps even relevant. For example, the indiscriminate disposal of waste over 200 miles of roadway, or the contamination of river beds were never intended to be regulated under RCRA. In such situations, RCRA standards would not be applicable, but parts of the RCRA or TSCA standards may be relevant in determining the final level of cleanup.

The proposed policy for on-site response actions would apply as follows:

For removal actions, EPA's policy is to pursue actions that will meet applicable or relevant standards and criteria of other federal environmental and public health laws to the maximum extent practicable, considering the exigencies of the situation;

For remedial actions, EPA's policy is to pursue remedies that attain applicable and relevant standards of other federal public health and environmental laws, with specific circumstances where those standards may not be achieved; and

CERCLA procedural and administrative requirmeents will be modified to provide safeguards similar to those provided under other laws, but a RCRA permit is not required for on-site response actions taken under the Fund-financed or enforcement authorities of CERCLA.

Applicable or relevant standards need not be met by CERCLA remedial actions in the following situations:

Interim Measures: If the selected remedy is not the final remedy for the site, it might be impractical or inappropriate to apply other environmental standards. For example, it might be appropriate to treat contaminated drinking water at the tap as an interim measure, pending final decisions on the appropriate extent of cleanup of the contaminated aquifer itself;

Fund-Balancing: As provided in § 104(c)(4) of CERCLA, for Fund-financed actions only, the lead agency will balance the need for protection of public health, welfare and the environment at the site against the amount of money available in the Fund to respond to other sites. Thus, the decision maker could select a remedy that does not meet an otherwise applicable or relevant public health or environmental standard if complying with that standard would be disproportionately costly, and Fund monies could be more productively used at another site where a response was necessary;

Unacceptable Environmental Impacts: In some cases, it might be possible to meet applicable or relevant federal standards, but compliance might result in significant adverse environmental impacts. This might be the case, for example, when dredging contaminants from the bottom of a body of water to levels required by environmental standards would result in more harm to the ecosystem than an alternative remedial response;

Technical Impracticability: This situation could occur when it is technically impracticable, from an engineering perspective, to achieve the standard at the specific site. For example, although the environmental standard may require that contaminated groundwater attain background levels, this may be impracticable because of the unique hydrogeologic conditions. Another example is where the site is characterized by a steep slope and the standard would require a cap. While the placement of a cap on a steep slope could be possible technically, it would not be practicable because of long-term problems with maintaining the integrity of the cap. This decision would not be based on a cost/benefit determination, however; and

For enforcement actions under § 106 of CERCLA only, the decision maker could choose not to meet an otherwise applicable or relevant standard if the fund is unavailable, there is a strong public interest in an expedited clean up, and the litigation probably would not result in the desired remedy. For example, this situation could occur where the defendant lacks sufficient resources to pay for a complete remedy or where liability is in question and the Fund is unavailable and the public interest is served by expeditious cleanup. One situation where the Fund is unavailable is where the state does not have sufficient funds to make the necessary state cost-share match.

Three important qualifications apply to these situations. First, in EPA's experience they will only occur infrequently. That is, most remedial actions will conform to applicable or relevant federal public health and environmental standards. Second, when these circumstances exist, they will not result in selection of a remedy that disregardshealth and environment concerns; rather, the decision maker will select the alternative that most closely approaches the level of protection provided by the applicable or relevant standard, considering the circumstances which prevented meeting the standards. Third, the basis [14 ELR 10447] for not meeting the standard will be fully documented and explained in the appropriate decision documents.

EPA will use federal health and environmental criteria, advisories, or guidance or state standards in developing the appropriate remedial response at a site, especially where there are no applicable or relevant federal standards. If EPA determines that these criteria, advisories, or guidance or state standards are relevant, but are not used in the selected remedial alternative or are substantially adjusted, the decision documents will indicate the basis for adjusting or not using them.

Proposed Changes To the NCP

Proposed amendments to the NCP are currently under Agency review. Several proposed changes would result in a more uniform decision making process. EPA may eliminate the distinction between immediate and planned removals and establish a new standard for removals. A second amendment would incorporate the CERCLA-compliance-with-other-environmental-laws policy into the NCP. Also under consideration are additions to the NCP section on Development of Alternatives. Finally, EPA- may clarify the term "cost-effective" in the context of selection of the appropriate extent of remedy.

The Agency is considering eliminating immediate and planned removals and initial remedial measures as distinct response categories, and expanding the criteria for conducting removals. The distinction between problems that pose "immediate and significant risk" (and thus are eligible for immediate removal action) and those situations that pose lesser risks (and thus are eligible only for planned removal treatment) is often difficult in practice. As a result decisions as to whether the action was an immediate or planned removal have been inconsistent. Although some situations are obviously within the immediate removal category, for others the question is more difficult. Time spent in properly classifying actions and documenting the "immediacy" and "significance" of the risk to health and the environment can delay necessary response and consume significant amounts of staff and decision maker's time. This not only may delay necessary response, but also may result in an unproductive expenditure of Fund resources.

The Agency is considering incorporating the CERCLA-compliance-with-other-environmental-statutes policy into the proposed amendments to the NCP. That policy is discussed in the preceding section.

The current NCP requires the development of alternative remedial responses for consideration by the decision maker. The proposed changes would spell out in greater detail the range of alternatives that should be developed. These include off-site treatment or disposal alternatives and the no-action alternative, as well as alternatives designed to implement the proposed policy regarding compliance with other environmental requirements. The feasibility study would develop alternatives that attain, exceed, and fall short of other environmental requirements, to aid the decision maker in determining the alternatives that consider relevant criteria, guidance or advisories, especially where there are not relevant or applicable federal standards. Finally, where appropriate, the feasibility study would take into account alternative technologies, such as waste minimization, destruction, and recycling.

The final major change under consideration would clarify the meaning of the term "cost-effective" in the context of selection of the appropriate extent of remedy. Section 300.68(j) in the current NCP provides that the agency shall select the alternative that is "cost-effective (i.e., the lowest-cost alternative that is technologically feasible and reliable and which effectively mitigates and minimizes damage to and provides adequate protection of public health, welfare, or the environment.)" Unfortunately, this language has given many observers the erroneous impression that EPA was required in all cases to select the lowest-cost remedy that provided minimally adequate protection of public health, welfare and the environment. EPA did not intend, nor does it believe that CERCLA requires, that cost-effectiveness be defined in such narrow terms.

Therefore, EPA is considering elimination of the reference to selection of the "lowest cost alternative." Instead, 300.68(i) would simply provide that the appropriate extent of remedy shall be determined by selection of a cost-effective remedial alternative that effectively mitigates, minimizes, and provides adequate protection of public health, welfare, and the environment. Under the proposed revisions, this requires the selection of a remedy that at a minimum, attains or exceeds applicable or relevant federal public health or environmental standards.

Preparatioin of Decision Documents For Approving Fund-Financed and Potentially-Responsible-Party Remedial Actions

Guidance has been prepared to assist EPA Regional Offices in preparing the decision documents required for the approval of Fund-financed and potentially-responsible-party (PRP) remedial actions. A Record of Decision (ROD) will be required for all remedial actions financed with monies from the Fund. The ROD will document the Agency's decision making process and demonstrate that the requirements of CERCLA and the NCP have been met. This will provide the basis for future cost recovery actions that may be undertaken.

A ROD will be used for sites where PRPs exist and negotiations may occur to determine if the PRPs will implement the approved remedy. When the EPA Regional Administrator determines that greater flexibility is required to negotiate with PRPs, an exemption to the ROD process would be allowed. A Negotiations Decision Document will be prepared to approve the range of negotiation flexibility. Following completion of negotiations, an Enforcement Decision Document will be prepared to approve remedial actions to be implemented by PRPs.

The primary purpose of the ROD and supporting information is to document that the remedial action is consistent with CERCLA and the NCP. Generally, this will involve making the determinations required by CERCLA and the NCP in the ROD signed by the designated decision maker. In most cases, this is the Assistant Administrator, OSWER; however, many of these decisions will be delegated to thue Regional Administrators during Fiscal Year 1985. In addition, the key steps of the Remedial Investigation/Feasibility Study (RI/FS) must be [14 ELR 10448] summarized in the Summary of Remedial Alternative section to show that the NCP decision making process has been followed. If the RI/FS does not contain the required information (such as an evaluation of alternatives that attain and exceed applicable and relevant federal public and environmental standards) the ROD package must include this information. In this way any significant gaps in the RI/FS will be filled. The ROD must have the following summary information.

Consistency with NCP. The summary information must show that alternatives were developed, screened, and evaluated in accordance with §§ 300.68(g) through (i) of the NCP. When the feasibility study is adequate in this area, the ROD document should briefly summarize the process and reference the feasibility study for additional information.

No-action alternative. Under § 300.68(g) of the NCP, the Agency evalautes a no-action alternative. The ROD summary must document that the no-action alternative was evaluated and describe the reasons for selection of an action (e.g., the release poses an actual or potential threat to public health or the environment), or the acceptance of no action as the final decision.

Extent of remedy. The ROD summary must explain how the level of cleanup for the recommended remedy was determined. The remedial action may be based on applicable and/or relevant federal public health or environmental standards. When standards are used, the ROD summary must document how the standards will be applied and described the engineering approach to cost-effectively implement the standards. When existing standards, criteria, or regulations are not relevant, the approach used to establish a level of cleanup must be developed in consultation with national EPA guidance. If the recommended alternative does not attain or exceed applicable or relevant standards, the ROD summary must describe how the circumstances for noncompliance are consistent with EPA policy.

Cost estimates. Costs must be shown for all final alternatives evaluated in the feasibility study. A table showing the remedial action cost, annual operation and maintenance (O&M) cost, and total present worth should be included. It is important to evaluate the accuracy of cost estimates. Expected accuracies for feasibility study estimates should be within +50 and -30 percent of the actual cost estimates. Remedial investigation data should be sufficient for this purpose. If existing data cannot support an adequate cost estimate, submission of the ROD should be delayed until additional field data can be collected and the cost estimates revised.

Cost-effectiveness evaluation. The factors used to screen and evaluate alternatives are described in §§ 300.68(h) and (i) of the NCP. The ROD summary must describe the factors used to screen and evaluate alternatives. The feasibility study must include a narrative description of the advantages and disadvantages of each factor for all alternatives. These should be summarized in the ROD summary.

CERCLA § 101(24). If all or part of the recommended remedial action involves off-site transport, storage, destruction, or disposal of hazardous wastes, the requirements of § 101(24) must be met. The remedial action, or component involving off-site activities, must be more cost-effective than other remedial actions, create new capacity to manage hazardous substances in addition to those at the facility, or be necessary to protect public health, welfare, or the environment from a present or potential risk. This determination is included in the ROD and must be discussed in the ROD summary document.

Responsiveness Summary. Draft RODs should summarize citizen and potentially responsible party concerns known at that time. The responsiveness summary, included as a part of the final ROD package, must include a summary of comments received before and during the public comment period as well as activities conducted by EPA or the state to elicit citizen input. Comments from all parties, including potentially responsible parties, must be included. The summary must respond to comments and discuss in detail: (1) any changes made due to comments received; (2) how the selected remedy differs from the community or potentially responsible parties' preferred alternative; and (3) any alternatives recommended that were not evaluated in the feasibility study.

Operation and Maintenance. If the recommended remedial action requires future O&M, the ROD should describe the O&M activities being approved. The ROD summary should describe the estimated duration and cost of O&M activities. It should also describe the funding requested from EPA and the State's mechanism for funding and carrying out the O&M activities.

Conclusion

EPA anticipates that the proposed changes to Agency policy, the NCP, and guidance on Agency decision documents relating to the selection of CERCLA response actions will improve the Agency's goal of better, more consistent decision-making. All of the actions under consideration, as described above, are the product of over four years of experience in implementing the Superfund program.

1. 42 U.S.C. §§ 9601-9657, ELR STAT. 41941.

2. CERCLA § 104(a)(1), 42 U.S.C. § 9604(a)(1), ELR STAT. 41945.

3. Established by CERCLA § 221, 42 U.S.C. § 9631, ELR STAT. 41953.

4. The NCP is mandated by CERCLA § 105, 42 U.S.C. § 9605, ELR STAT. 41946. It is promulgated at 40 C.F.R. pt. 300, ELR REG. 47401.

5. 47 Fed. Reg. 31180 (1982).

6. 42 U.S.C. §§ 6901-6987, ELR STAT. 41901.

7. Memorandum from William N. Hedeman, Jr. to Regional Administrators on Requirements for Selecting an Off-Site Option in a Superfund Response Action (Jan. 28, 1983), and Memorandum from Lee Thomas to Regional Administrators on Revision of Policy on Requirements for Selecting Off-site Options in Superfund Response Actions (June 22, 1984).