19 ELR 10103 | Environmental Law Reporter | copyright © 1989 | All rights reserved

Proposed Amendments to the National Contingency Plan: Explanation and Analysis

Joseph Freedman

Editors' Summary: The Superfund hazardous waste cleanup program has had centerstage prominence in environmental law throughout the 1980s, and its history has been one of virtually continuous controversy and criticism. Some of the debate centers around the Environmental Protection Agency's management and expertise in administering the program, while other debate focuses on policy choices implicit in choosing the program's goals and direction. EPA's principal rulemaking in the Superfund program — and its clearest opportunity to set the course, pace, and tone for Superfund cleanups — is the National Contingency Plan. When Congress overhauled the Superfund program in 1986, it called for EPA to make key changes in the NCP. Recently, EPA proposed its changes, and, true to the program's history, they are already proving controversial. In this Article, the author, an EPA attorney who played a major role in drafting the NCP revisions, systematically describes EPA's proposed new NCP and the reasoning behind it. He notes where Congress has already decided particular key issues, and identifies other issues where EPA itself exercised substantial discretion in aiming the Superfund program as it enters the 1990s.

Mr. Freedman is an attorney in the Environmental Protection Agency's Office of General Counsel, where he has worked on Superfund issues since 1981. He is the attorney principally responsible for legal issues in the National Contingency Plan's proposed amendments, which are the subject of this Article. The views expressed are those of the author and do not necessarily represent the views of the Environmental Protection Agency.

[19 ELR 10105]

With the exception of the statute itself, the central document governing the cleanup of hazardous waste under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)1 is the National Oil and Hazardous Substances Pollution Contingency Plan (National Contingency Plan or NCP).2 The National Contingency Plan provides a comprehensive regulatory framework for hazardous waste cleanups. It specifies responsibilities and organization for preparedness, planning, and response, outlines the steps for deciding the extent and methods of oil removal and hazardous substances response, and includes procedures for ranking sites according to the severity of the threat they pose.

Aware of the centrality of the NCP to the CERCLA program, Congress in its 1986 amendments to the statute ordered extensive revisions to the NCP.3 The Environmental Protection Agency (EPA or the Agency) proposed the revisions on December 21, 1988,4 and will review public comments before promulgating the revisions in final form.

This Article first reviews the evolution of the NCP over the last 20 years, beginning with its initial role in 1968 as an interagency agreement to coordinate federal agencies' responses to oil spills, and tracking its growing importance over time. The Article then focuses on the substance of the present proposed revisions, explaining the changes and the reasons for them. These revisions highlight and, perhaps, resolve some key issues that the statute itself leaves unanswered.

Background

The National Contingency Plan, B.C. (Before CERCLA)

The First NCP

The first NCP, then called the National Multi-Agency Oil And Hazardous Materials Pollution Contingency Plan, was issued in September 1968 even before EPA was created. It fulfilled a presidential directive to study the government's capabilities and develop multi-agency plans for handling environmental disasters, notably oil spills. The original Plan was an agreement entered into by the Departments of Interior; Transportation; Defense; and Health, Education and Welfare; and the Office of Emergency Planning. The Plan applied to United States navigable waters, the contiguous zone, and "high seas beyond this zone where there exists a threat to United States waters, shoreface, or shelf-bottom."5 The Plan established a national reaction team and provided for the establishment of regional reaction teams and contingency plans. The Plan sought to develop systems for discovering and reporting pollution incidents, containing oil discharges, applying techniques for cleanup and disposal, recovering cleanup costs, and enforcing federal statutes.6

The Plan established several response organizations that have survived with surprisingly few changes throughout the Plan's 20-year history. Primary responsibility for individual response efforts was placed in the hands of an on-scene commander, to be designated in regional contingency plans.7 The regional contingency plans were also to establish a Regional Operations Center (ROC) and Regional Operations Team. Pollution incidents that exceeded regional capabilities, overlapped regional boundaries, or involved national security or major hazards were to be handled by a Joint Operations Team. A Joint Operations Center (JOC) was established in Washington, D.C., as headquarters for response activities. Finally, a National Inter-Agency Committee, composed of the Plan's participating agencies, and headed by the Interior Department, was established as "the principal instrumentality for plans and policies of the Federal multi-agency response to pollution incidents."8

The Plan divided federal response operations into four phases.9 The first phase was discovery and notification. The JOC was to be notified of major spills;10 the applicable ROC was to be notified of other pollution incidents. A pollution incident included any "discharge of oil or other hazardous substance of such magnitude or significance as to require immediate response to contain, cleanup or dispose of the material to prevent a substantial threat to public health or welfare"11.

Phase II, to be directed by the on-scene commander, included [19 ELR 10106] containment and countermeasures to halt or slow the spread of the release. The on-scene commander was to ascertain the facts and establish priorities for protecting threatened resources. The on-scene commander was also responsible for Phase III: cleanup, restoration, and disposal operations. Phase III included removing the pollutant from the water and subsequent action to restore the environment to its "pre-spill condition."12 The final phase was to recover for response costs and damage to government property under applicable statutes. Third party damages were specifically excluded from consideration. Phase IV also included collection of scientific and technical information for research and development purposes.

Finally, the Plan included 13 annexes, covering issues such as sources of funding, public release of information, coordination with state and local governments, and procedures for modifying the NCP.13

The 1970 NCP

The Water and Environmental Quality Improvement Act of 1970 (WQIA14) was the first precursor to CERCLA. It established a regime of notification, federal response with a supporting revolving fund, liability for oil spills, and response authority for discharges of hazardous substances. It authorized the President to remove discharged oil, including authority to mitigate damages. In addition, in the event of a marine oil disaster, the President was given plenary and summary response authority.

The WQIA required the President to publish a National Contingency Plan for "efficient, coordinated, and effective action to minimize damages from oil discharges, including containment, dispersal and removal of oil."15 Although the WQIA did not explicitly mention the 1968 Plan, it required that the NCP include many of the same features. The WQIA provided that after publication of the NCP, "removal and actions to minimize damages from oil discharges shall, to the greatest extent possible, be in accordance with the National Contingency Plan."16

Shortly after the WQIA's enactment, the Council on Environmental Quality (CEQ) promulgated the 1970 NCP, the National Oil and Hazardous Materials Pollution Contingency Plan.17 The 1970 Plan included provisions required by the WQIA, but retained the basic approach of the 1968 Plan,18 and incorporated most of its provisions. It separated Phase II of the 1968 Plan into two new phases: cleanup and disposal, and restoration.

The 1970 Plan also recognized a national strike force established by the Coast Guard to assist in response actions. The 1970 Plan required that regional contingency plans designate local strike force teams to help carry out the plan.

The 1971 NCP

The NCP acquired its current official name when CEQ revised it on August 20, 1971.19 The 1971 Plan contained few substantive changes, though it did increase the number of federal agencies with responsibility by including CEQ (then authorized to revise the NCP), the newly created EPA (which became the chair of the National and Regional Response Teams), and the Departments of Commerce, Justice, and State. The National Inter-Agency Committee was no longer mentioned. The increased role of EPA and other civilian agencies was reflected as the on-scene commander became the on-scene coordinator. Notification of spills was to be made to the appropriate Coast Guard or EPA office.

The 1973 NCP

In 1972 Congress enacted one of the first comprehensive federal environmental statutes, the Federal Water Pollution Control Act Amendments of 1972 (FWPCA).20 Although the 1972 Amendments broke significant new ground in other areas, § 311, the response section of the Act, did little more than extend the WQIA scheme to hazardous substances.21 Liability for hazardous substance removal costs was imposed, and the discharge of nonremovable hazardous substances became subject to administrative penalty.

FWPCA § 311(c)(2) added the requirement that the NCP establish a system for states to remove discharges and be reimbursed from the fund established under § 311(k).22

In response, CEQ published a revised NCP on August 13, 1973.23 The revisions required that the on-scene coordinator [19 ELR 10107] determine whether private party removal actions were "proper" under FWPCA § 311(c)(1), making no federal response necessary, and set forth criteria for making this determination.24 The 1973 Plan provided that the use of chemicals to remove discharges must be approved by the EPA or alternate representative on the Regional Response Team, except as covered by regulations or the Regional Response Plan.25 Foreshadowing EPA's later policy, the Planalso provided that applications of dispersants were exempt from nascent FWPCA permitting requirements because of the "overriding need for prompt" action.26

The 1980 NCP

The 1977 amendments to the FWPCA included several provisions tightening the § 311 response and liability regime, and these were implemented in the 1980 revisions to the NCP.27 In accordance with the 1977 FWPCA amendments, the 1980 NCP revisions expanded its scope to apply to potential as well as actual discharges. They sought to increase state participation by inviting state representatives to be members of Regional Response Teams (RRTs), and provided that RRT members could appeal RRT decisions to the National Response Team (NRT) and CEQ. The 1980 NCP provided for the first time for local contingency plans, designated scientific support coordinators, and called for involvement of the Department of Interior in spills threatening endangered species.

Thus, on the eve of CERCLA's enactment, an NCP was in place that set forth a detailed federal response scheme. However, the 1980 NCP applied only to discharges into waters regulated by the FWPCA. It did not apply to releases to groundwater or soil, and it did not provide authority or funding for long-term federal response to chronic hazards.

The 1982 NCP

The December 11, 1980, enactment of CERCLA28 brought a dramatic expansion of the NCP's role.29 CERCLA authorized a national program to investigate and respond to releases and threatened releases of hazardous substances, both on land and water. The Act established the Hazardous Substance Trust Fund, since renamed the Hazardous Substances Superfund (the Fund).

To implement the national response program, CERCLA required the President to revise and republish the NCP, and he delegated this responsibility to EPA.30 CERCLA required the NCP to "establish procedures and standards for responding to releases of hazardous substances, pollutants, and contaminants."31 Essentially, CERCLA required that the NCP become the guiding plan for hazardous substance response, and it was cross-referenced throughout the statute. EPA's authority under § 104(a), though plenary in nature, was to be exercised "consistent with" the NCP. Section 104(c) provided for the selection of remedies "which are to the extent practicable in accordance with the national contingency plan."32 Recovery of response costs under § 107 was limited, in the case of the federal or state governments, to response costs "not inconsistent" with the NCP. Recovery by private parties was limited to necessary costs incurred "consistent with" the NCP. An exemption to liability was provided for persons "rendering care, assistance, or advice in accordance with the national contingency plan or at the direction of an on-scene coordinator appointed under such plan."33 Of the major implementation provisions in CERCLA, only § 106 contained no reference to the NCP.34

In response to CERCLA, EPA promulgated revised NCP provisions on July 16, 1982.35 The 1982 NCP incorporated large parts of the 1980 NCP, and generally followed the historical structure. Subpart A was revised to reflect the enhanced jurisdictional reach of CERCLA and otherwise reflect the new CERCLA authorities.

Subpart B, allocating responsibility for response actions, was revised to reflect the President's delegation of CERCLA authorities under Executive Order 12316. The revised subpart included separate sections on participation by state and local governments, and non-government participation. Subpart B summarized state participation in the federal response effort: states were requested to assign a representative to Regional Response Teams; to undertake contingency planning for response consistent with the NCP; to use state legal authorities to compel potentially responsible parties (PRPs)36 to undertake response actions; and to undertake response actions themselves when no federal funding was available.37 The role of the states was [19 ELR 10108] further enhanced by the provision that states acting pursuant to a cooperative agreement under CERCLA § 104(d) could be the lead response agency and furnish the on-scene coordinator.

Section 300.25 of the 1982 NCP encouraged nongovernmental participation in response actions. However, § 300.25(d) provided that persons who wished to obtain reimbursement from the Fund under CERCLA § 111(a)(2) must notify EPA before taking such action and receive prior approval ("preauthorization") to take such action.

Subpart C of the 1982 NCP updated the 1980 Plan's summary of the organizational structure for response to reference CERCLA response activities. The NRT retained responsibility for national planning and coordination. The RRTs, consisting of federal and state representatives, were to serve as the regional bodies for planning, and for coordination and advice during response actions. Fund-financed response actions were to be directed by on-scene coordinators designated by EPA or the Coast Guard for responses under their respective jurisdictions. These coordinators were also made responsible for directing all other federal efforts at the scene of a discharge or release, and for coordinating with RRTs and other federal, state, local, and private response agencies.

Subpart D set forth requirements for the development of federal regional contingency plans and federal local contingency plans. As was provided in the 1980 NCP, regional plans were to follow the national plan's format. Local plans were excused from that requirement; they merely had to provide for a "well-coordinated response that is integrated and compatible with the pollution response, fire, emergency and disaster plans of local, State and other non-Federal entities."38 EPA rejected suggestions that state and local governments be required to develop local contingency plans.39

Subpart E was largely unchanged from the 1980 Plan, but was now restricted to discharges of oil. The principal provisions to implement the new CERCLA response authorities in CERCLA comprised Subpart F.

The 1982 NCP revisions emphasized control of cost. The regulation exhorted response personnel to encourage state participation, conserve Fund monies by encouraging private party cleanup, be sensitive to local community concerns, rely on established technology when feasible and cost-effective, and encourage the participation and sharing of technology by industry and other experts.40

Subpart F adopted the "phased" response approach taken in the NCP since its initial publication in 1968.41 The first phase, like that for oil removals, was discovery or notification of the release. The second phase was a preliminary assessment to evaluate the magnitude of the hazard, identify the source and the nature of the release, determine the existence of PRPs ready, able, and willing to respond, and determine whether an immediate removal would be necessary.

The third phase was immediate removal to respond to immediate risks of harm to human life, health, or the environment; exposure to acutely toxic substances; contamination of a drinking water supply; fire or explosion; and similarly acute situations. Actions in this phase were not limited to actual removal of hazardous substances. They included providing alternate water supplies, installing security fences, and placing physical barriers to stop or retard the spread of the release. Beyond such examples of removal action, however, no standards for determining the proper extent of cleanup were provided.

The fourth phase was to evaluate the need for any further response, and to determine what it would be. This phase included investigations, monitoring, surveys, and other information gathering. It also included the Agency's methods of establishing priorities for remedial response, and it provided for the establishment of the National Priorities List (NPL) of releases where response was of highest priority. Each state could designate one site for inclusion on the NPL; other sites were to be added to the list through rulemaking by application of the Hazard Ranking System, included as Appendix A to the 1982 NCP. The NPL was first promulgated as Appendix B to the NCP on September 8, 1983, and has been periodically updated since then.42

The fifth phase was planned removal, which could only be undertaken upon request of a state, and then only if the state agreed to pay a share of the costs.

Remedial action, the sixth phase of response, was limited to sites listed on the NPL.43 The first type of remedial action, initial remedial measures, was almost identical to planned removal actions, and was based on virtually the same considerations. These could only be taken at the request of a state, and were generally intended as temporary measures, awaiting further response. The second type of remedial action, source control remedial actions, was intended to prevent or retard migration of hazardous substances into the environment. Source control could include containment or removal of hazardous substances. The factors to be considered in deciding whether to undertake source control related generally to the hazard presented and the potential for migration and exposure. Where source control was not sufficient, off-site remedial action was to be considered.

The first step of the remedial process was the remedial investigation, which was to determine the nature and extent of the problem presented by the release.44 It assessed whether source control measures could mitigate and minimize the threat. The lead agency (usually EPA) was then to develop a limited number of remedial alternatives, in what later became known as a feasibility study. These alternatives were to be screened on the basis of cost, effects, and acceptable engineering practices. The rule set forth the following relative cost-effectiveness test:

an alternative that far exceeds (e.g. by an order of magnitude) the costs of other alternatives evaluated and that does not provide substantially greater public health or environmental benefit should usually be excluded from further consideration.45

[19 ELR 10109]

After the screening of alternatives, the lead agency was to conduct a more detailed evaluation of each surviving alternative. The actual criteria for selection of remedy were stated as follows:

The appropriate extent of remedy shall be determined by the lead agency's selection of the remedial alternative which the agency determines 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).46

In addition, EPA made it clear that Fund-financed remedies must also take account of the availability of Fund money at other sites.47

The seventh phase of the NCP required documentation sufficient to provide the source and circumstances of the condition, identity of responsible parties, accurate accounting of federal costs incurred, and impacts and potential impacts to public health, welfare, and the environment. There were no specific requirements to document the rationale for the response action selected.

Subpart G of the 1982 NCP designated federal trustees for natural resources, and made them responsible for assessing natural resource damages, seeking recovery for natural resource losses, and devising and carrying out restoration and rehabilitation and replacement plans. The NCP recognized that states could act as trustees for resources under their jurisdiction.

Subpart H of the 1982 NCP replaced Annex X to the previous Plan, the "Schedule of Chemical and Other Additives to Remove Oil and Hazardous Substances Discharges." EPA replaced the Annex's detailed procedures with provisions that the on-scene coordinator could authorize the use of dispersants and other chemicals on the EPA list of acceptable dispersants, with the concurrence of the EPA representative to the RRT, and in consultation with the state. EPA could also approve the use of other dispersants and chemicals on a case-by-case basis.

The 1982 NCP Litigation

The 1982 NCP did not attempt to specify cleanup standards for CERCLA response actions. However, the Plan did place heavy emphasis on cost-effectiveness (§ 300.68(j)), and Fund-balancing (§ 300.68(k)).48 The Agency had considered its emphasis on cost to be consistent with the direction of Congress in § 104(b)(4) of CERCLA as enacted in 1980.

The State of New Jersey and the Environmental Defense Fund challenged the 1982 revisions in the District of Columbia Circuit.49 EPA settled the litigation by agreeing to propose NCP amendments requiring relevant health and environmental standards from other EPA programs to be applied in determining CERCLA remedies, and where they are not applied, to explain why. The Agency also agreed to promulgate a rule addressing the issue of whether response activities must comply with other federal, state, or local environmental laws.50

The 1985 NCP

How Clean Is Clean?; The Introduction of ARARs

On November 20, 1985, EPA fulfilled the settlement agreement by promulgating revisions to the NCP.51 This is the version of the NCP currently in effect, except where is conflicts with the 1986 amendments to CERCLA. While a number of minor changes were made to other subparts, the most significant amendments were to Subpart F, dealing with hazardous substance response. The principal change, in accordance with the settlement agreement, was to look to requirements of other federal environmental laws as a means of establishing remedial cleanup standards. Section 300.68(i) was amended to require, with limited exceptions, that EPA select "a remedy that attains or exceeds applicable or relevant and appropriate Federal public health and environmental requirements that have been identified for the specific site."52 The section also provided that state standards, as well as non-binding federal guidance, advisories, and criteria, would be "considered" in selecting the remedy.

The key to the 1985 cleanup standards was the term "applicable or relevant and appropriate requirements," which has acquired the awkward acronym "ARARs." Applicable requirements were those that would be legally applicable but for CERCLA's implied repeal of other laws.53 Relevant and appropriate requirements were "those Federal requirements that, while not 'applicable,' are designed to apply to problems sufficiently similar to those encountered at CERCLA sites that their application is appropriate. Requirements may be relevant and appropriate if they would be 'applicable' but for jurisdictional restrictions associated with the requirement."54

The term, "applicable" was viewed as relatively objective; EPA or another lead agency55 had only to discern, as would any private party taking similar action, what [19 ELR 10110] federal environmental standards applied to the action in question, given its time and place, and the identity of the action. Determining which requirements were "relevant and appropriate," however, was a more subjective matter, requiring the exercise of considerable discretion.

The Agency added the "relevant and appropriate" requirement in part because environmental requirements have certain jurisdictional limitations that might not be related to protection of human health and the environment. For example, hazardous waste requirements established under the Resource Conservation and Recovery Act (RCRA)56 apply only to hazardous wastes that are treated, stored, or disposed of after November 19, 1980, but it can scarcely be argued that the risk posed by an identical substance, though disposed of prior to that date, poses a different environmental risk and therefore should be treated differently in a CERCLA cleanup. Thus, RCRA requirements were deemed to represent protective standards, not just for waste subject to RCRA, but to similar waste outside of RCRA's jurisdiction.

Confronted with the enormous reach of the RCRA regulatory system when unfettered from its jurisdictional restraints, the Agency took great pains to emphasize that in order to be "relevant and appropriate," a requirement not only had to be relevant, but it had to appropriate for the site involved.57 The preamble to the 1985 NCP devotes considerable discussion to particular requirements that might or might not be relevant and appropriate, particularly those of RCRA.

EPA's decision to meet ARARs was a departure from the 1982 NCP, where it had considered requiring cleanup levels that met "Federal and State standards or water quality criteria," but had rejected that approach as too rigid.58

Although asserting that compliance was not legally required, EPA proposed to attain ARARs because they often defined adequate levels of protection or provided useful information about risks and treatment technologies.59

Including ARARs as cleanup standards was motivated in large part by the idea that if EPA was going to require regulated parties to meet certain standards on the ground that they were necessary to protect human health and the environment, it should meet those same standards itself in a cleanup program designed to achieve the same ends.60

Despite the adoption of the ARAR standard, cost-effectiveness continued to play an important role in the 1985 NCP. As the preamble explained, the plan required selection of a cost-effective alternative "from a range of alternatives that protects human health and the environment."61 The term "cost-effective," however, though not specifically defined, departed from its meaning in the 1982 NCP. Cost-effective was no longer meant as "the lowest cost alternative that is technologically feasible and reliable and which effectively mitigates damage to and provides adequate protection of public health, welfare and the environment."62 While the 1985 NCP dictated selection of the least expensive of remedies that are equally feasible, reliable, and protective, EPA concluded that, "where those factors are not equal, the lead agency must evaluate the cost, level of protection, and reliability of each alternative."63 Thus, the 1985 NCP applied cost-effectiveness as a means of selecting among alternatives with differing levels of effectiveness and cost.

Although the Agency made it clear that cost-effectiveness would come into play only with respect to remedies that attain ARARs, it also provided that ARARs could be waived if the response was to be financed by the Superfund itself and would draw so heavily from the Fund as to be outweighed by the need to spend the money elsewhere.64

The 1985 NCP also allowed ARARs to be waived for interim remedies,65 for situations where attainment of ARARs would be technically impractical,66 and for situations where ARARs would cause unacceptable environmental impacts.67 Finally, an "enforcement waiver" was provided where "the Fund is unavailable, there is a strong public interest in expedited cleanup, and the litigation probably would not result in the desired remedy."68 Except for the interim remedy waiver, if a waiver was invoked, a remedy must be selected that most closely approaches the level of protection provided by the ARAR, considering the circumstances that prevented attainment of the requirement.69

Apart from the waivers, the 1985 NCP provided that while remedial actions should comply with substantive requirements of other environmental laws, no permits were necessary for on-site remedial actions taken under authority of §§ 104 or 106 of CERCLA.70 EPA's intent was to exempt remedial actions "from the procedural and administrative requirements of the permitting process but not from substantive compliance with environmental and public health concerns addressed by permits."71 The Agency acknowledged that its contractors would generally procure building and other "non-environmental" permits, but that such permitting requirements would not be allowed to [19 ELR 10111] "thwart a response action necessary for protection of public health and welfare and the environment."72 This exemption applied only to on-site remedial actions; offsite storage, treatment, or disposal of hazardous substances was restricted to facilities operating in accordance with applicable legal requirements, both substantive and procedural.73

Other Provisions of the 1985 NCP

Removal Actions. The 1985 NCP greatly facilitated removal actions by removing the requirement that states pay 10 percent of the costs for planned removals and all of the cost of operation and maintenance. The distinction between planned and immediate removals was eliminated. Removals could be undertaken whether or not the site was on the NPL; the only standard was a determination of a threat to human health or the environment.74 These revisions greatly enhanced the Agency's discretion to take removal actions, now fettered only by the statutory restrictions on time and money.75

The requirement to meet ARARs became applicable to removal actions, albeit only "to the greatest extent practicable considering the exigencies of the circumstances."76 Like remedial actions, on-site removal actions were seen as exempt from permitting requirements, although off-site management of hazardous wastes from a removal actioncould occur only at facilities operating in compliance with applicable law.77

Remedial Actions. Apart from the ARAR provisions, a number of revisions were made to the remedial process. First, the "initial remedial measure" category was eliminated, on the ground that actions that need to begin prior to selection of a longer term response can be accomplished as removal actions.78 Such actions could also be accomplished under remedial authority, as the 1985 revisions codified the practice of undertaking remedial actions in phases, called "operable units." Operable units are components of a comprehensive remedy, but are subject to a discrete selection-of-remedy process. The distinction between "source control" and "off-site" actions was also eliminated, because both often result in the same responses.

Under the 1985 NCP, the basic tool for analyzing the release became the remedial investigation/feasibility study (RI/FS). The RI was presented as a "scoping" phase, a planning process to determine what type of response would be necessary. Section 300.68(e) set forth an expanded number of specific scientific and technical criteria to assess in order to determine whether and what type of response actions should be considered.79

The 1985 NCP followed the 1982 version in providing for development, screening, and detailed analysis of alternatives, in a "feasibility study." The rule called for the development of at least one factor in each of the following categories, as appropriate:80

(1) Treatment or disposal off-site;

(2) Alternatives that attain ARARs;

(3) Alternatives that exceed ARARs;

(4) Alternatives that do not attain ARARs but will reduce the likelihood of a threat, provide significant protection to public health and welfare and the environment, and closely approach the level of protection provided by the ARARs; and

(5) A "no-action" alternative.81

Waste minimization, destruction, and recycling were to be considered in developing the alternatives.82

As in the 1982 NCP, alternatives were subject to initial screening based on cost, acceptable engineering practices, and effectiveness.83 The 1985 NCP made clear that alternatives could not be screened out on the basis of cost, if that cost was necessary to meet ARARs.84

Alternatives that survived the screen were then subject to a detailed analysis. The detailed analysis differed from that required in the 1982 NCP primarily by requiring an analysis of ARARs, and also by including, as appropriate, an analysis of whether recycling, biodegradation, or similar alternative technologies were suitable.85 This provision contrasts with the 1982 Plan, which had emphasized established technology.

State Role. The term "lead agency" was amended to include state agencies undertaking response actions pursuant to a contract or cooperative agreement. However, EPA refused to extend the "lead agency" designation to [19 ELR 10112] other state response actions.86 Section 300.62 was revised to clarify that cooperative agreements are not necessary (and indeed would not be offered) for remedies that are not financed by the Fund. The preamble to the proposed regulation also explained that state cost share is required only prior to the initiation of remedial action; no such assurance is required for remedial design and planning activities.87

Site Evaluation Phase, NPL Determination. The 1985 NCP made several changes to the NPL listing process. First, it provided for preliminary assessments of existing data and off-site reconnaissance. The preliminary assessment was intended to eliminate sites posing no significant threat, determine whether the site posed a short-term danger, and collect data needed to determine whether the site should be listed.

Shortly before promulgating the 1985 NCP, EPA added a criterion for listing sites on the NPL: in addition to the Hazard Ranking System and state designation of a highest priority release,88 EPA may list a site if the Agency for Toxic Substances and Disease Registry issues a public health advisory that recommends dissociation of individuals from the release and EPA determines that the release poses a significant threat to human health, and use of remedial authority would be more cost-effective than use of removal authority.89 The 1985 NCP also broke with precedent by authorizing the listing of federal facilities on the NPL, even though the Superfund itself may generally not be spent at such facilities,90 because the Agency considered the NPL to be the most effective means to advise the public on the status of federal cleanup efforts.91

Finally, the 1985 NCP established criteria for determining that no further response is appropriate, so that the site may be deleted from the NPL.92 In contrast to the Hazard Ranking System used to place sites on the NPL, no numerical criteria were set for deletion. Essentially, sites may be deleted when EPA determines, in consultation with the state, that the site poses no significant threat, or that no further response is otherwise required. The Agency refused, however, to delete sites on the basis of contemplated cleanup actions, even those subject to consent decrees or other enforceable arrangements. While deletion from the NPL may erase any stigma associated with the listing, it does not prevent the Agency from undertaking any appropriate remedial action at the site, as future conditions warrant.93

Enforcement Actions. The 1985 NCP was generally applicable to enforcement actions under CERCLA § 106 as well as to federally financed activity. Enforcement actions were subject to the same cleanup standards and enjoyed the same exemption from permit requirements as Fund-financed actions. Enforcement actions were exempted from a number of requirements that made sense only for Fund-financed response actions.94

Other Party Responses. Under CERCLA § 107, private parties may recover response costs incurred "consistent with the NCP." Following the promulgation of the 1982 NCP, a number of courts reached conflicting conclusions as to whether EPA approval of the response was a prerequisite to private recovery under § 107. Some courts took the view that "consistency with the NCP" meant approval by EPA,95 while others took a contrary view.96 The 1985 NCP attempted to resolve this issue by specifying what, in the Agency's view, was necessary in order for a private response to be considered consistent with the NCP, and this specifically did not include EPA approval.97 At the same time, the provision set forth EPA's view of what was necessary for government response costs to be "not inconsistent" with the NCP.98

The 1985 revisions expanded upon the preauthorization requirement necessary for the submission of a claim to the Fund under CERCLA § 111(a)(2). Several prerequisites to preauthorization were added,99 and the lead agency was given the authority to monitor preauthorized response actions. The 1985 NCP also included a provision to "certify" private organizations to conduct site response actions.100 However, certification was not required for preauthorization. Given its limited utility, the certification provision has never been used.101

Public Participation. The NCP originated as a framework for emergency responses to oil spills. Although it emphasized coordination and notification among different levels of government, and encouraged private assumption of responsibility, even through the 1982 revisions it did not provide for public participation in the response selection process. As the scope of cleanup became larger, more complex, and more expensive, the federal response program came to focus less on emergency action and more on long-term response, which is more amenable to public participation in the administrative process. The 1985 NCP introduced community relations to the federal response program. Section 300.39 required that all public [19 ELR 10113] and private interests be kept informed and that their concerns be considered, and it provided for the establishment of an "on-scene news office."

A new § 300.67 was added, specifying community relations requirements for CERCLA response actions.102 A community relations plan was required for both removal and remedial actions. for short-term removal actions, no formal plan was required; the lead agency was simply to inform the public of its activities. A formal plan was required for remedial actions and for removal actions expected to take more than 45 days. A public comment period of at least 21 days was provided for review of alternative remedial actions presented in feasibility studies, both for Fund-financed and enforcement-lead remedial actions. Administrative orders on consent, in which a PRP agrees to undertake permanent remedial action, were subject to a 30-day comment period. Remedial actions pursuant to judicial consent decree were subject to public comment in accordance with Department of Justice regulations.103 The lead agency was required to prepare a written summary of responses to major issues raised in public comments.

Litigation

Although the 1982 NCP litigants were apparently satisfied with the 1985 revision, nine other petitions for review of the rule were filed in the D.C. Circuit. The cases were consolidated under Ohio v. United States Environmental Protection Agency.104 Only the preauthorization provisions were litigated, as most other issues were mooted by enactment of the 1986 CERCLA amendments. The preauthorization issues were upheld in their entirety.105

SARA

On October 17, 1986, President Reagan signed into law the 1986 amendments to CERCLA, the Superfund Amendments and Reauthorization Act (SARA)106 SARA reauthorized the Superfund with $ 8.5 billion over 5 years and made a number of modifications to CERCLA, requiring the President to revise the NCP to conform to those amendments.107

The congressional debate leading to SARA's enactment showed that many legislators were unhappy with CERCLA's implementation. A common complaint was that not enough sites had been cleaned up, and that federal response actions tended to focus on containment and minimizing exposure to hazardous substances, rather than destruction of those substances. Frustration with the pace of federal cleanup efforts found a voice in § 116 of CERCLA, which imposed a schedule for performing site inspections, remedial investigation/feasibility studies (RI/FSs), and remedial actions. In response to concern about the standard of cleanup, Congress added CERCLA § 121.108 While it clearly goes beyond the original remedy selection provision in CERCLA § 104(a)(4), and reflects congressional sentiment that response actions were not sufficiently "permanent," the actual language of § 121 gives EPA an ambiguous mandate.

On one hand, cleanup actions are to be protective of human health and the environment.109 In selecting remedial actions, the President is to "prefer" "actions in which treatment which permanently and significantly reduces the volume, toxicity or mobility of the hazardous substances, pollutants, and contaminants is a principal element."110 The President is to conduct an assessment of permanent solutions and alternative treatment technologies that will result in a permanent and significant decrease in the toxicity, mobility, or volume of hazardous substances, and select remedies that use such solutions and technologies "to the maximum extent practicable."111

These requirements and preferences, by themselves, would indicate a clear mandate to implementremedies featuring a high degree of permanence and treatment. However, Congress also chose to emphasize cost as a countervailing consideration. Section 121(a) calls on EPA to select remedial actions that provide for "cost-effective response," and § 121(b) requires EPA to select a remedial action "that is cost-effective." SARA does not define "cost-effective," but § 121(a) does provide that in evaluating it, both short-term costs and long-term costs are to be considered, including costs for operation and maintenance.

By twice imposing a cost-effectiveness requirement without any equivocation as to "practicability" or potential waivers, Congress undercut the desire of some of its members to provide clear direction for CERCLA implementation. Indeed, § 121(d)(1) appears to preserve much discretion for case-by-case decisionmaking by its further requirement that remedial actions shall be "relevant and appropriate under the circumstances."

SARA also adopted, with some variations, the 1985 NCP's ARAR requirement. The statute now provides that the remedy must attain, with respect to hazardous substances remaining on site, "a level or standard of control" that at least attains "legally applicable or relevant and appropriate" requirements of any federal environmental law or more stringent standard112 of a state environmental or facility sitting law.

[19 ELR 10114]

SARA thus ordered EPA to revise the 1985 NCP, but Congress articulated ambiguous and incomplete policy on some of the most fundamental uses. When this happens, the implementing agency must make policy choices as best it can, following whatever guideposts it can find in the statute. Thus the stage was set for an important EPA role in drafting the 1988 proposed revisions to the NCP.

1988 Proposed NCP Revisions

Introduction

On December 21, 1988, EPA proposed revisions to the NCP to implement SARA and otherwise improve the Plan.113 The main changes involve how to select remedial actions, set forth in proposed Subpart E. The primary feature is a proposed balancing process to implement the various "cleanup standards" now prescribed in CERCLA § 121. Significant additions and modifications are also proposed for state participation in remedy selection, which would be consolidated in Subpart F. A new Subpart I would govern the development of administrative records to support response actions.

Overview of Proposed Remedial Process

Under the proposed revisions, selecting and implementing a remedial action would work roughly as follows. First, a release of a hazardous substance is discovered, whether by reporting under § 103(a) or (c) of CERCLA114 or by other means. At that point, EPA may decide to undertake a "removal site evaluation" (§ 300.410) or a "remedial site evaluation" (§ 300.420). The site evaluations would determine if further action is warranted. A "time-critical" removal action may be taken without much further ado if expedited action is required.115 Sites indicating a need for remedial action would be evaluated for listing on the NPL.

Once a site is listed on the NPL, or even if it is merely proposed for listing, the process of selecting and implementing a remedial action may begin. That process may include: (1) "project scoping" — the development of workplans for data collection and analysis; (2) a remedial investigation to characterize the site and associated risks; (3) a feasibility study to develop and analyze alternatives; (4) publication of a proposed remedial action plan; (5) selection of the remedy; (6) remedial design; and (7) actual construction of the remedy.116

Preliminary Site Evaluation

Once a release is identified,117 EPA will perform a removal site evaluation, a remedial site evaluation, or both. These evaluations include a preliminary assessment (PA), and, as warranted, a site investigation (SI). While the removal and remedial evaluations differ in amount of detail, the Agency may decide at any time to move from one to the other. A removal PA/SI may reveal a need to take removal action, to evaluate the need for remedial action, or neither. Under proposed § 300.420(b), remedial PAs would be conducted for all sites listed in the CERCLA information system (CERCLIS) remedial inventory.118 In addition, CERCLA § 105(d) now authorizes citizens to petition the Agency to undertake a PA. The proposed rule sets forth information required to be submitted with PA petitions, as well as criteria and procedures for responding to such petitions.119

The purpose of the remedial PA is to determine whether further response action is warranted, as well as to gather information to assist in hazard ranking scoring.120 If further action is warranted, EPA will conduct an SI.

Under the 1985 NCP, the purpose of an SI is to collect data for Hazard Ranking System scoring. The proposed revisions would expand the SI's purpose to include the collection of information that could be used for removal actions or cleanups under other statutory authority.121 This modification corresponds to a change in the philosophy on NPL listing, discussed below.

Removal and remedial site evaluations would differ according to their respective purposes and the amount of time available. The potential need for prompt action and limited purpose of most removal actions restrict the scope of removal site evaluations. Longer term threats would generally be reserved for a remedial site evaluation. If prompt action is not necessary, but it appears that human health or the environment is threatened, a remedial site evaluation would develop the data required to score the [19 ELR 10115] site for the NPL and otherwise assess whether further action is necessary.

NPL Listing

Ever since the NCP was first revised under CERCLA in 1982, it has provided that Fund-financed remedial action may only be performed at sites listed on the NPL.122 The proposed NCP retains this approach and would make no substantive change to the existing criteria for listing sites on the NPL,123 but would redefine the NPL as "EPA's list of priority releases for long-term remedial response."124

It is important to bear in mind what listing on the NPL does and does not signify. NPL listing generally has only three legal effects. First, as a matter of regulation (not of statutory law), it is a prerequisite for the undertaking of Fund-financed remedial action. Second, technical assistance grants under CERCLA § 118(e) are limited to groups that may be affected by releases at facilities listed on the NPL. Third, NPL listing has additional consequences for federal facilities: it triggers a mandatory process for the commencement of an RI/FS and the selection and implementation of necessary remedial action,125 and CERCLA § 120(a)(4) provides that state law concerning remedial and removal actions is applicable to federally owned or operated sites not on the NPL.

NPL listing is not a prerequisite to removal action (including remedial planning activities under § 104(b)), enforcement action under § 106 or § 122, or to cost-recovery under § 107. The proposed NCP would clarify that NPL listing does not imply that remedial action will be taken in accordance with the relative ranking of sites, or even that it will be undertaken at all.126

EPA has always listed sites on the NPL through notice-and-comment rulemaking. The proposed NCP would codify this practice.127 Deletion of sites from the NPL would also require notice-and-comment rulemaking, as well as concurrence of the relevant state.128 Fund-financed remedial actions may be taken at deleted NPL sites as warranted; sites may be restored to the NPL if there are significant releases at the site, without further Hazard Ranking System scoring.

While the 1985 NCP provides that releases may be deleted from or "recategorized" on the NPL, EPA has not yet recategorized any sites.129 However, the preamble to the proposed rule endorses the idea of recategorizing sites where all remedial construction activities have been completed. The construction completion category would include sites where long-term continued operation of the remedy is required, as well as sites where cleanup has been achieved and final deletion from the NPL is pending.130 According to the preamble, recategorization is intended to convey more information to the public about the status of sites. Although not mentioned by the Agency, recategorization presumably may alleviate some of the perceived stigma associated with being on the NPL.

EPA originally viewed the NPL as a list to inform the public of the most serious hazardous waste sites, regardless of whether they would be addressed under CERCLA. However, the Agency has since come to believe that the list should include only sites that appear to require remedial action under CERCLA. The Agency has already decided to defer the listing of sites that could be addressed by RCRA corrective action authorities or the Nuclear Regulatory Commission.131 Although similar reasoning would appear to apply to federally owned or operated RCRA facilities, EPA does not intend to apply the deferral policy to federal facilities, because the absence of federal facilities from the NPL is contrary to the presumed intent of CERCLA § 120.132

The preamble states that EPA is considering extending its deferred listing policy to sites where other statutory authorities or funding mechanisms would be used to clean up sites. Potential authorities and mechanisms include:

1. RCRA Subtitle D.133 EPA is developing regulations under Subtitle D of RCRA that are expected to include corrective action provisions for cleanup of municipal land-fills. Those regulations would not be federally enforceable, but could be implemented by the states.

2. RCRA Subtitle I.134 Subtitle I of RCRA gives EPA response and enforcement authority over releases of petroleum from underground storage tanks, and establishes a trust fund for such responses. EPA has promulgated [19 ELR 10116] rergulations requiring corrective action "confirmed or actual releases" of petroleum or hazardous substances from underground storage tanks.135

3. Surface Mining Control and Reclamation Act (SMCRA).136 Listing of sites could be deferred if states are cleaning them up with funds from the Abandoned Mine Land Reclamation Fund established under SMCRA. The use of that fund is generally restricted to coal mine sites, but can be used for other mining sites if all coal sites in the state have been reclaimed.

4. Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).137 The Agency would use FIFRA as its primary weapon to combat pollution from the registered use of pesticides; leaks, spills, and improper use of pesticides would still be listed on the NPL.

5. State authorities. To date, the Agency has deferred NPL listing only where the site may be remedied under authority of another federal law, or a state program authorized by EPA under RCRA. The preamble discusses the possibility of a more general deferral to state corrective action authority, and requests comment on what prerequisites should apply to such deferral. A major concern in deferring to states is what type of cleanup would ensue. After all, Congress established CERCLA as a federal response program, and specifically rejected an alternative that simply would have funneled money for remedial activity to the states.138 However, there is little to suggest that Congress intended that EPA must undertake remedial action when the state has the situation well in hand. The preamble sets forth potential criteria for deferring to state remedies, ranging from no substantive requirements or oversight at all, to predicating deferral on: (1) certification of sufficient state authority, personnel, and funds; (2) a satisfactory schedule; (3) provision of status reports to EPA; (4) sufficient public participation procedures; and, perhaps most significantly, (5) state commitment to select a remedy that is consistent with the cleanup standards in § 121 of CERCLA.

6. CERCLA enforcement. EPA also solicits comment on the possibility of "deferring" listing of sites that will be cleaned up by potentially responsible parties (PRPs) pursuant to CERCLA enforcement orders. As is the case for the other types of "deferral," if the site is adequately addressed, it would never be listed on the NPL. The preamble sets forth two potential options. First, the site would not be listed, or even proposed for listing, if the PRP enters into a consent decree providing for a complete remedy at the site. Alternatively, the site would be proposed for listing, but EPA would defer final listing if the PRP enters a consent decree to perform an RI/FS. If the RI/FS is performed and the PRPs agree to implement the remedy selected by EPA, the site would be dropped from the proposed list; otherwise, the site would be listed. The preamble also solicits comment on whether the deferred listing policies should be extended to delete sites that are already on the NPL.

RI/FS

Streamlining and the Bias for Action

In response to public criticism of the pace of CERCLA remedial actions, a number of proposed revisions and much preamble discussion are devoted to an effort to expedite and increase the number of response actions by streamlining analysis and emphasizing a "bias for action." The preamble declares EPA's "bias for initiating response actions necessary or appropriate to eliminate, reduce, or control hazards posed by a site, as early as possible."139 Early actions may be pursued through both removal and remedial authority.140 The preamble emphasizes EPA's current practice of dividing remedial actions into "operable units," which may be undertaken in advance of or in the early stages of an RI/FS, either in response to worsening hazards or where a limited action can nonetheless lead to a quick, substantial improvement.141

The concept of streamlining is intended to expedite the RI/FS process, which in some cases has taken more than five years, and averages approximately two years. Streamlining, in essence, simply means restricting data gathering and analysis (most often undertaken by government contractors) to that which is truly necessary to evaluate the problems of and potential solutions for a particular site. The rule and preamble repeatedly encourage response officials to tailor studies and analysis to site circumstances, sufficient to select remedies for the site, but discourage boilerplate analysis and analysis of clearly unworkable alternatives. Some actions will take place before the RI/FS is completed, as information becomes available.

The emphasis on streamlining is an understandable response to the schedule imposed by Congress and to widespread dissatisfaction with the pace of the cleanup program. The challenge is to streamline while at the same time undertaking an analytical process sufficiently rigorous to ensure the selection of effective remedies that will be upheld upon judicial review. The proposed RI/FS remedy selection process follows the framework of the 1985 NCP, and includes the following steps: (1) scoping142; (2) a remedial investigation that typically includes gathering basic data for characterization of the site, a baseline risk assessment, and "treatability studies" (studies to determine whether and how the waste can be treated to reduce its volume or hazard); (3) a feasibility study, which includes the development of alternatives, a screening step, as necessary, and a detailed analysis of the alternatives; and (4) remedy selection and documentation.

[19 ELR 10117]

Scoping

The first step, scoping, develops workplans describing the scope and content of the RI/FS. The workplans identify the data needed to analyze remedial alternatives and the methods to obtain and analyze those data. Scoping is a major opportunity to streamline the selection process by designing investigative and analytical studies to fit the site and release at issue. Under the proposed rule, EPA would:

(1) Assemble and evaluate existing data in order to define potential pathways and associated impacts and toinitiate any indicated response action;

(2) Begin to formulate remedial alternatives, consistent with available information (alternatives would generally be fully developed during the FS);

(3) Undertake limited data collection efforts and begin treatability studies, as appropriate;

(4) Prepare site-specific health and safety plans;

(5) Develop detailed sampling and analysis plans for obtaining data of sufficient quality to support decisions during remedial response;

(6) Ensure that trustees of any affected natural resources are promptly notified of the release;

(7) Consult with the support agency on identification of potential ARARs and other pertinent information;143 and

(8) Initiate development of remedial action objectives, as appropriate.

The RI

The RI would assess the risks to human health and the environment at the site, and provide information sufficient to develop, evaluate, and select remedial alternatives. The proposed regulation would replace the current NCP's 17 factors for determining what type of response action should be considered144 with 7 factors designed to assess the nature of threat and potential response alternatives:

1. physical characteristics of the site;

2. characteristics or classifications of air and water;

3. characteristics of the waste, including propensity to bioaccumulate;

4. extent to which the source can be adequately characterized and identified;

5. potential environmental pathways of exposure (such as air or water);

6. potential methods of exposure (such as inhalation or direct contact); and

7. other factors, such as sensitive populations.

The RI may include: (1) the collection of data identified during project scoping as necessary to characterize the site and evaluate remedial alternatives; (2) an assessment of risks posed by the release (a "baseline risk assessment"); and (3) treatability studies needed to evaluate potential remedial technologies. The proposed revisions emphasize that the principle of streamlining will limit the Agency's characterization to the collection and assessment of that data necessary to determine what, if any, types of response actions are warranted. EPA proposes to collect data about treatment technologies, such as characteristics of the waste or the site that affect the types of treatment possible and the effectiveness of treatment approaches, the extent to which substances may be reused or recycled, and the potential for future releases if any substances or treatment residuals remain on site.

Once the contaminants of concern at a site have been identified, a baseline risk assessment is initiated to determine whether the site poses a current or potential risk to human health and the environment, and whether or not remedial action is necessary.145 The risk assessment may vary both in detail and the extent to which qualitative and quantitative analyses are utilized, depending on the nature of the site and the existence of standards or criteria for contaminants at the site.

The baseline risk assessment addresses both exposure and toxicity. The exposure component identifies the magnitude, frequency, and duration of actual or potential human or environmental exposures, and the routes by which such exposures take place. Threats posed both under current exposure and "reasonable maximum exposure" are assessed. The toxicity component of the baseline risk assessment considers: the kind of threat to human health or the environment, the correlation between exposure and adverse effects, and related uncertainties, such as the weight of evidence for a particular chemical's carcinogenicity in humans. The risk assessment generally relies heavily on existing toxicity information, including estimated probabilities of increased lifetime cancer risk associated with exposure to specific concentrations of carcinogens, and information on the maximum concentrations of a noncarcinogenic chemical that is not likely to present appreciable risk of significant adverse effects to humans (including sensitive subgroups) over lifetime exposures.146

The FS

The FS develops and analyzes remedial alternatives so that the decisionmaker can select an appropriate remedy.147 The FS will usually be conducted in tandem with the RI. As the preamble makes clear, the FS may be interrupted at any time to carve out an operable unit for immediate implementation.

Cleanup Goals. The first step of the FS is to establish as remedial goals the "acceptable exposure levels which are protective of human health and the environment." The goals would be based on ARARs, if available, and the following additional considerations:

1. for non-carcinogens, levels that would cause no appreciable risk of significant adverse effect during a lifetime;

2. for known or suspected carcinogens, concentration levels that represent an increased lifetime cancer risk of 10<-4> to 10<-7>.148 A 10<-6> level is to be used as a "point of [19 ELR 10118] departure" for determining cleanup goals when ARARs are not available or sufficiently protective;

3. the presence of multiple contaminants or pathways of exposure. Health-based limitations149 for individual contaminants might not be sufficient if there is more than one contaminant at the site, or if people or the environment is exposed to a pollutant through more than one route or pathway;

4. factors related to technical limitations such as detection or quantification limits;

5. uncertainty; and

6. other pertinent information.150

The above factors would codify a widely used practice in EPA of using 10<-6> as a presumptive cleanup goal for carcinogens. However, the proposed NCP treats that level as only a "point of departure," and it is only one factor to be considered. Exposure factors, uncertainty factors, and technical factors may determine where to set remedial goals within the 10<-4> to 10<-7> risk range. Exposure factors include the cumulative effect of multiple contaminants, the potential for exposure from other pathways, population sensitivities, potential impacts on environmental receptors, and cross media impacts of alternatives. Uncertainty factors include the reliability of alternatives, the weight of scientific evidence, and the reliability of exposure data. Technical factors include technical limits of restoration, detection, or quantification; the ability to monitor and control movement of contaminants; and background levels of contamination. The target of 10<-6> risk has frequently been used in Superfund cleanups, but has not previously been codified in an EPA regulation. The preamble solicits comment on whether a different risk range such as 10<-4> to 10<-6> should be used.151

The preamble also addresses where remedial goals should be attained. For groundwater, target levels should generally be attained throughout the contaminant plume, or at and beyond the edge of the waste management area when waste is left in place. Air cleanup levels "should be based on the maximum exposed individual, considering reasonably expected use of the site and surrounding area."152 For surface waters, the area of attainment is where the release enters the surface waters.

The risk range will not be the only determinant of the extent of cleanup; the actual remedy selection must also take into account additional criteria, such as permanence, treatment, and cost-effectiveness.

Development of Alternatives. Once the target cleanup levels are identified, EPA is to identify suitable technologies and assemble them into alternative remedial actions. The proposal then sets forth a number of alternatives to be developed for particular types of actions.153

To control the source of the hazardous substances, a range of alternatives is to be developed as appropriate, including treatment alternatives, engineering alternatives, and, as necessary, institutional controls such as land use restrictions. The range of treatment alternatives would generally include alternatives that remove or destroy hazardous substances "to the maximum extent feasible eliminating or minimizing to the degree possible, the need for long term management."154 These may also include alternatives that treat the principal threats posed by the site but vary in the degree of treatment employed and in the quantity of waste that must be managed.

Engineering controls involve physical construction that prevents exposure. Capping or other containment of waste is a typical engineering control used at Superfund sites. Another example is the alteration of groundwater gradient, to prevent or control movement of a contaminated plume. Engineering controls are often combined with institutional controls, which are legal devices to prevent or discourage land use that would result in harmful exposure to hazardous substances. Institutional controls include deed restrictions, deed notices, and restrictions on drilling wells into contaminated aquifers.

The proposed rule also requires the Agency to develop alternatives based on innovative treatment technologies where there is a reasonable belief that they offer better performance or cost-effectiveness. CERCLA § 121 specifically allows for the selection of alternative remedial actions whether or not such action has been achieved in practice at any other facility.

Finally, the proposed regulation would require the development of a "no further action" alternative to provide a basis for comparison with other options. This is the only alternative whose development would always be required; the others are all "as appropriate."

The term "as appropriate" appears frequently in both the current NCP and the proposed revisions. Alternatives are to be developed "as appropriate," meaning that alternatives (other than no further action) need not be developed where the proper remedy or partial remedy is apparent, or where it is clear that particular alternatives will not be practicable. As an example, the preamble states that because comprehensive treatment options are "less likely to be practicable at large municipal landfills or mining waste sites,"155 only a limited number of remedies involving treatment of the principal threats, containment, exposure prevention, or combinations of those approaches need be developed.

In developing alternatives, the proposed rule would require [19 ELR 10119] the application of three general criteria: effectiveness, implementability, and cost. Alternatives would be screened out if they were not adequately protective, could not be implemented within a reasonable time, or if they cost more than other comparably effective alternatives. To some extent, alternatives may be screened out on grounds of cost-effectiveness. While the preamble states that "cost generally will not be the sole reason for eliminating an alternative from further consideration at the screening phase," it also says that "costs can also be considered in conjunction with other factors to determine whether or not an option is likely to yield results in terms of implementability and effectiveness that are in proportion to its costs, relative to other alternatives under consideration."156

Groundwater remediation. The proposed regulation addresses groundwater response actions separately.157 As discussed in the ARARs section below, the cleanup standard for groundwater that is or may be used for drinking water is generally set at Maximum Contaminant levels (MCLS) promulgated under the SDWA. The preamble declares: "The goal of EPA's Superfund approach is to return usable ground waters to their beneficial uses within a time frame that is reasonable given the particular circumstances of the site," and states that restoration time periods may range from one year to several decades, expressing a preference for "rapid restoration of contaminated ground water that can be used for drinking water wherever cost-effective and practicable," particularly for groundwater that is a current source of drinking water.158

The proposed regulation requires the development of a limited number of remedial alternatives that attain the target cleanup level within different time periods. Both the target cleanup level and the time period for achieving it would depend on the projected use of the water, which may be determined with the assistance of EPA's Ground Water Classification System.159 Until the aquifer is restored to health-based levels, the Agency would rely on institutional controls to prevent consumption of contaminated water.

Absent further contamination, all groundwater would eventually be restored by natural attenuation, a process that can take from several months to several centuries. Cleanup of groundwater usually involves source control (to prevent further contamination), treatment, and natural attenuation. The extent and intensity of treatment, in combination with natural attenuation, determines the length of the restoration period. The minimum restoration time for each site depends on the nature of the contaminants, hydrogeological conditions, and the size of the contaminant plume. The preamble states that a five-year restoration period should be examined.160

Once the Agency determines the time in which restoration is feasible, alternative restoration periods would be evaluated according to the following factors:

(1) feasibility of providing an alternative water supply;

(2) current use of groundwater;

(3) potential need for groundwater;

(4) effectiveness and reliability of institutional controls;

(5) ability to monitor and control the movement of contaminants;

(5) cost; and

(6) other environmental impacts.161

Groundwater that is unsuitable for human consumption due to high salinity or widespread contamination and does not have the potential to affect drinkable water162 would be addressed differently. Cleanup levels and restoration periods would be determined based on the groundwater's beneficial use (if any), and on the potential for the contaminated groundwater to affect other water bodies. Potential environmental effects may also determine the extent to which such groundwater needs to be cleaned.

The preamble also suggests that widespread groundwater contamination due to multiple sources will be addressed in a limited fashion: Superfund response action to widespread contamination would be proportional to the contribution from the Superfund site to that contamination.163

Detailed Analysis.

Alternatives that survive the screening stage are subjected to a detailed analysis, which is the principal basis on which remedies are selected. The proposed rule derives from CERCLA § 121 nine criteria for analyzing alternatives and selecting a remedy:

1. overall protection of human health and the environment;

2. compliance with ARARs;

3. long-term effectiveness and permanence;

4. reduction of toxicity, mobility, or volume;

5. short-term effectiveness;

6. implementability;

7. cost;

8. state acceptance; and

9. community acceptance.164

The first two criteria are threshold criteria: they must be met unless (for ARARs only) a waiver is explicitly invoked under the statutory procedures. The other seven criteria are factors to be balanced.

[19 ELR 10120]

Overall protection, the first criterion, is EPA's primary consideration. Overall protection actually encompasses most of the other nine criteria, and the proposed NCP defines it as protection from "unacceptable risks posed by hazardous substances, pollutants, or contaminants."165

"Acceptable" risk levels would be developed through analysis of ARARs and non-binding criteria, advisories, and guidance developed by federal or state agencies. ARARs are generally the primary benchmark of protectiveness, but may not be sufficiently protective where there are multiple contaminants (posing an additive or synergistic risk) or multiple pathways of exposure (e.g., an MCL for arsenic may not be sufficiently protective if exposure may also occur through inhalation). The proposed risk range of 10<-4> to 10<-7> and "point of departure" of 10<-6> risk for establishing remedial goals would also affect the detailed analysis.

The preamble adds to the regulation's definition:

A remedy is protective if it adequately eliminates, reduces, or controls all current and potential risks posed by … the site. A site, where, after the remedy is implemented, hazardous substances remain without engineering or institutional controls, must allow for unrestricted use and unlimited exposure for human and environmental receptors. For those sites where contaminants remain such that unrestricted use and unlimited exposure is not allowable, engineering controls, institutional controls, or some combination of the two must be implemented to control exposure and thereby ensure reliable protection over time. In addition, implementation of a remedy cannot result in unacceptable short-term risks to, or cross-media impacts on, human health and the environment.166

The preamble thus envisions the use of institutional controls to supplement engineering controls. The preamble foresees routine use of institutional controls to prevent short-term exposures, and as a supplement to engineering controls designed to manage wastes over time. The preamble cautions against the use of institutional controls to restrict use or access as a permanent substitute for active response measures unless such active measures are determined not to be "practicable." However, since practicability is determined by balancing the nine evaluation and remedy selection criteria, considerable discretion remains to select institutional controls, if that is the result of the Agency's balancing process.

In EPA's view, CERCLA § 121's preference for treatment as a principal element, its requirement to select remedies that use treatment and provide permanent solutions to the maximum extent practicable, and its cost-effectiveness requirement create "dynamic tension" for the Superfund program. The nine criteria create a framework by which to identify and later balance site-specific trade-offs.167

While acknowledging the emphasis on permanent solutions and treatment technologies, the Agency clearly has misgivings about a "scorched earth" policy that would employ widescale use of incineration and other thermal technologies to treat large volumes of contaminated soil. The preamble states that while treatment of hazardous substances is clearly to be preferred, it is most likely to be practicable and cost-effective for high concentrations of toxic compounds and wastes that cannot be reliably controlled in place. The preamble identifies situations where treatment is not likely to be appropriate, and concludes that as a priority treatment will focus on the principal threats posed by a site, with priority placed on highly toxic,highly mobile waste, combined with engineering controls (such as containment) for treatment residuals and untreated waste.168

The proposed NCP does not include specific criteria for determining that a remedy satisfies CERCLA § 121's requirements for cost-effectiveness, treatment, and permanence.169 Rather, the proposed Plan would establish a process in which these requirements would be attained primarily by balancing five of the criteria listed:

(1) Long-term effectiveness and permanence. Together with the next criterion, this is intended to incorporate the statute's emphasis on long-term solutions. The criterion is meant to encompass CERCLA § 121(b)(1)(A)-(G)'s criteria for assessing permanent solutions and treatment or resource recovery technologies. The preamble emphasizes analysis of risks that will remain at the site after the completion of the remedial action, including the threat posed by the hazardous substances remaining at the site; the adequacy and reliability of any controls used to manage the hazardous substances remaining at the the site; and the potential impacts on human health and the environment, should the remedy fail, based on assumptions of a "reasonable maximum exposure."170

(2) Reduction of toxicity, mobility, or volume. This criterion derives from the CERCLA § 121(a) preference for treatment and the directive to use permanent solutions and treatment or resource recovery technology to the maximum extent practicable. The preamble calls for analysis of the magnitude, significance, and irreversibility of the reductions.171

(3) Short-term effectiveness. Not specifically in the statute, this criterion nevertheless goes to whether the remedy is protective of human health and the environment. The criterion addresses threats arising during implementation of the remedy to the neighboring community, workers, or the surrounding environment, including potential threats to human health and the environment associated with excavation, treatment, and transportation of hazardous substances, as required by CERCLA § 121(b)(1)(G).

(4) Implementability considerations. This criterion focuses on the technical and administrative feasibility of the alternatives, including the availability of the goods and services on which the alternative depends. Aside from reflecting the obvious need to select a remedy that can be implemented, the criterion is part of the determination of how much permanence and treatment is "practicable."

(5) Cost. The role of cost has, not surprisingly, been of continual controversy since the inception of the CERCLA program. While the Agency has moved away from a dogmatic insistence on the lowest-cost, minimally protective [19 ELR 10121] remedy, the revised NCP gives significant emphasis to the statutory cost-effectiveness requirement. Though cost-effectiveness cannot be used to select an unprotective remedy, the Agency views CERCLA § 121's cost-effectiveness requirement as a mandate to select protective remedies whose costs are proportionate to their overall effectiveness. Cost is analyzed, along with the previous four criteria, to strike a balance between the statutory requirements of cost-effectiveness, permanence, and treatment.

In analyzing costs, EPA uses "net present value." This concept discounts future costs to reflect the time between now and when the costs will be incurred. The net present value depends on the discount rate used; in the preamble EPA announces its intent to continue to rely on OMB Circular A-94, which uses a discount rate of 10 percent but also says it will use sensitivity analyses based on other rates.172

The final two criteria, state and community acceptance, while considered during the FS analysis, are more readily taken into account during the final selection of remedy, after the public comment period.173 The criteria reflect SARA's increased emphasis on state and public participation in the remedy selection process, as well as the need to secure a share of the remedial costs from the state in order to proceed with a Fund-financed remedial action. Although not specifically articulated as such in the preamble, state and community reaction presumably may be considered in determining how much treatment is "practicable."174 For example, widespread public opposition to an incinerator (particularly if citizens erect barricades at the site) may lead the Agency to conclude that implementation of such a remedy would be difficult.

Selection of Remedy

Proposed Approach

Based on a review of the completed detailed analysis (or before that, if early action is warranted), EPA will issue a proposed remedial action plan. Following public comment and an opportunity for hearing, the Agency will make its final selection of remedy, memorialized in a record of decision (ROD). The remedy is selected that strikes the best balance among the nine criteria previously discussed, keeping in mind that the first two criteria must be met.175 The preamble offers the following guidance for selecting the remedy:

Total costs of each alternative should be compared to the overall effectiveness they afford [sic] and the relationship between costs and overall effectiveness across alternatives should be examined to determine which alternatives offer results proportional to their costs such that they represent a reasonable value for the money…. In performing the balancing necessary to make that decision, the decisionmaker must weigh the preference for remedies involving treatment as a principal element.

For Fund-financed actions, EPA may consider the need to use Fund monies at other sites in selecting a less costly remedy over a moredesirable but substantially more expensive alternative as the most practicable, cost-effective solution.176

Selection of an operable unit is guided by the following additional considerations:

The protectiveness evaluation of an operable unit may be limited to that unit itself; at a minimum, the protectiveness determination should show that conditions at a site are not exacerbated as a result of the action.

For an operable unit the ARAR determination will be limited to the wastes being actively managed. Only Federal and State requirements that are applicable or relevant and appropriate to the operable unit must be addressed.

In making the determination, for an operable unit, that the selected remedy utilizes permanent solutions, treatment technologies, or resource recovery technologies to the maximum extent practicable, the need or opportunity to take expeditious action at the site may be considered.177

Thus, the principal feature of remedy selection is a balancing process, under which the Agency will weigh the competing statutory emphases on cost, treatment, and permanence. The final balancing process is intended to yield a cost-effective remedial alternative that uses permanent solutions, treatment, or resource recovery to the maximum extent practicable; there is no individual, discrete determination of those requirements.

The proposed approach thus provides few hard and fast rules for selection of remedy. However, nonbinding preamble discussion of EPA's expectations may play an important role in determining the actual extent of Superfund remedies.

In addition to discussing the proposed selection of remedy approach, the preamble solicits comment on four alternative approaches.

Alternative Selection-of-Remedy Approaches

1. Site-specific balancing with a cost-effectiveness screen. The first variation is similar to the proposed approach, but would include a discrete evaluation of cost-effectiveness prior to the balancing process that determines the final remedy. Non-cost-effective alternatives would be then be eliminated from further consideration, although cost would continue to be a factor in the final balancing process. This approach would condense the nine criteria into three broader categories, and would not formally include state and community acceptance as evaluation criteria for detailed analysis. The preamble suggests that limiting the balancing to three broader categories of criteria "may simplify and streamline the analysis and focus the rationales for remedy selection."178

2. Sequential decisionmaking approach. This alternative would follow the proposed alternative through the detailed analysis of alternatives, but would separate the final selection process into five sequential steps. First, the alternatives would be ranked qualitatively for overall effectiveness, taking account of the statutory preference for [19 ELR 10122] treatment. Next, the alternatives would be ranked qualitatively as to implementability. Clearly unimplementable or impracticable alternatives would be eliminated from further consideration. The effectiveness and implementability rankings would then be combined into a joint effectiveness/implementability ranking, also performed qualitatively. This step would require a balancing of all non-cost factors, again giving long-term effectiveness and permanence extra emphasis.

The next step would be to compare estimated relative costs of the alternatives against the combined effectiveness and implementability ranking. Those alternatives whose incremental costs were "out of proportion" to incremental effectiveness/implementability would be eliminated as not cost-effective; the remaining alternative with the highest effectiveness/implementability ranking would be selected.

This approach would arguably add more structure to the selection process and may result in more consistent documentation of how the remedy was selected. However, the preamble expresses concern that the "compartmentalization" inherent in the approach may forfeit the flexibility necessary for the decisionmaking process.179 Although on its face this option has a logical appeal, it may be questioned whether any ranking of both effectiveness and implementability can be meaningful, or whether it would only confer a false sense of objectivity. It may be that the remedial decision can be made only by considering all the relevant factors together.

3. Point of departure strategy. The point of departure analysis would focus on the development of "aggressive treatment options that could result in absolute destruction, detoxification, or immobilization of all waste above health- or risk-based levels."180 Short-term impacts that might be caused by an alternative would be a secondary consideration. The least costly of the most effective options, defined primarily in terms of toxicity, mobility, or volume reduction achieved, would be selected.

This approach is extreme in "virtually equating the degree of effectiveness, permanence, and/or protectiveness with the degree of toxicity, mobility or volume reduction attained," and it "presumes that the alternative employing the most aggressive form of treatment of all waste typically will be selected unless unimplementable."181 The approach would give short shrift to consideration of short-term impacts, implementability, and relative cost-effectiveness. The preamble charges that the approach "implicitly interprets the mandate to 'utilize permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable' as a mandate to use the maximum amount of treatment possible."182

The above approach clearly is not consistent with CERCLA § 121. However, it could be modified slightly to comport with the statute. Alternative protective remedies could be ranked by the degree to which they utilize permanent solutions and treatment or resource recovery technologies. The highest ranking alternative would then be selected, unless (1) it is not cost-effective, based on a comparison with other alternatives; (2) it is not implementable (i.e., not practicable); or (3) it is less effective than some other alternative.183 Although the statute nowhere says this, it is difficult to conceive that an alternative that is less effective than another alternative should be chosen simply because it involves more treatment.

4. Site stabilization strategy. This alternative is designed to maximize the number of sites that could be addressed under CERCLA. Most sites would first be addressed by removal or interim remedial measures. Treatment technologies would be applied only where immediately necessary to protect human health or the environment. After most sites are stabilized, permanent remedies would be implemented on a priority basis.

Analysis

Those seeking a clear rule of decision may find fault with the proposed approach, but given the welter of factors that must be considered and the wide variety of Superfund situations, the proposed approach may be the best combination of objectivity and flexibility.184 Alternatives to the proposed approach, while more mechanistic, may impose artificial constraints on remedy selection without adding objectivity or making the process more reproducible.

One basic point of contention is whether remedies should be selected purely on their scientific and technical merit, or on the basis of political considerations as well. The statutory language is not clear. Given the fact that EPA is part of the executive branch and under the close scrutiny of several congressional committees, perhaps political considerations should affect the selection process. The proposed approach forthrightly includes those considerations, in the form of state and community acceptance, as integral criteria for the selection of remedies. If it is proper to accord significant weight to state and public acceptance, it may be disingenuous to posit a rigorous, objective (or perhaps pseudo-objective) decisionmaking process. On the other hand, it may be that the purpose of public participation is only to make sure that the public is informed of what the Agency intends to do, and that the decision is made on the basis of a maximum amount of technical and scientific information. If so, a more objective approach would appear desirable. However, that assumes that the various technical and scientific considerations that go into cleaning up a Superfund site can be quantified meaningfully. That is doubtful, in light of the state of knowledge on the toxicity of various hazardous substances and the uncertainties in predicting the risks posed at individual sites, each with its own peculiar characteristics. Moreover, risk management decisions may be more judgmental than technical.

The actual remedies selected might not vary under any of the approaches discussed above, other than the last one. All depend, in the final analysis, on a determination of [19 ELR 10123] cost-effectiveness, a term not defined in the statute. The role of cost-effectiveness under CERCLA continues to be controversial. Two fundamentally divergent views have been expressed. The proposed revisions, in keeping with the 1985 NCP, interpret cost-effectiveness to require an evaluation of relative costs versus relative effectiveness. A contrary view is that the term merely refers to the most cost-efficient means of achieving a particular level of protection. The legislative history includes statements supporting both views.185

The narrow interpretation of cost-effectiveness seems strained. It would be curious for Congress to emphasize twice in the same section an obvious requirement to select the least costly means of achieving a particular result. Further, to say that cost-effectiveness merely involves selecting the lowest-cost alternative that achieves a particular "level of protection" is difficult to harmonize with the totality of § 121, which suggests a balancing among the criteria listed. Protectiveness is only one statutory criterion; while some of the other requirements are no doubt intended to promote protectiveness, it is doubtful that in every case more treatment means more protection. Yet the statute does place an inherent value on treatment. Thus, even selection of the lowest-cost remedy that achieves a particular level of protection may be inconsistent in some cases with a literal reading of the statutory provision on treatment. Moreover, the narrow interpretation of cost-effectiveness would not assist the Agency in choosing among different kinds of remedies, such as treatment and recycling. Rather, an approach that admits to the possibility of a range of cost-effective remedies would appear more suited to selecting a remedy that is most faithful to all of the statutory criteria, taken together.

Further evidence supporting a broad interpretation of cost-effectiveness may be gleaned from the statutory requirement that:

[i]n evaluating cost-effectiveness the President shall take into account the total short- and long-term costs of such actions, including the costs of operation and maintenance for the entire period during which such activities will be required.186

The quoted language suggests that the term involves comparison of different kinds of remedies: those involving immediate destruction of hazardous substances, and containment alternatives requiring long-term operation and maintenance.

Yet another indication of the broad meaning of cost-effectiveness is provided in statutory provisions on relocation. The definition of "remedial action" includes relocating homes and businesses "where cost-effective,187 as do the special provisions in Indian tribes188 and Times Beach, Missouri.189 Determining whether permanent relocation is cost-effective requires some qualitative comparison against other kinds of potential remedies such as treatment, off-site disposal, and containment. Given the qualitative differences among those remedies, the determination requires more than identifying the least expensive means of providing a particular level of protection.

If cost-effectiveness requires something more than selecting the least expensive means of achieving a particular level of protection, any "objective" test for cost-effectiveness is problematic, as it necessarily would depend on both a quantification of effectiveness (not likely to be an objective process in itself) and an arbitrary determination that a particular ratio of costs to effectiveness is or is not cost-effective. Cost-effectiveness is likely to be a highly judgmental, discretionary decision. Thus, unless the Agency is required to select the cheapest means of achieving the maximum degree feasible of permanence and treatment, even the "point of departure" option might not increase the selection of comprehensive treatment options; the Agency could conclude, in many cases, that burning great quantities of contaminated dirt is not cost-effective.

ARARs

SARA Provisions

Despite SARA's requirements for treatment and permanent remedies, compliance with ARARs retains a central role in the selection of remedial actions. By adding § 121 to CERCLA, SARA incorporated the 1985 NCP's concept of ARARs, with some notable differences. First, the requirement appears to apply only to hazardous substances remaining on-site at the completion of the remedial action.190 Second, the statute requires only that hazardous substances remedial actions meet "levels or standards of control" established for the hazardous substance at issue. Third, the requirement is extended to state environmental and siting laws that are identified to EPA in a "timely manner."191 Fourth, the waivers provided in the 1985 NCP are modified. SARA has eliminated the "enforcement waiver" found at 40 C.F.R. § 300.68(i)(5)(v) and added two new waivers: one where a state has inconsistently applied its requirements and another where an equivalent standard of performance will achieve the same result. SARA also provides that state requirements that result in a prohibition of land disposal need be followed only in enumerated circumstances.192 Fifth, SARA provides that maximum contaminant level goals (MCLGs) established under the Safe Drinking Water Act and federal water quality criteria (WQC) must be met "where relevant and appropriate under the circumstances of the release."193

Finally, SARA contains no provision similar to § 300.65(f) of the 1985 NCP, which requires that removal [19 ELR 10124] actions comply with ARARs "to the greatest extent practicable, considering the exigencies of the circumstances."194

Determination of ARARs

The proposed NCP makes only "clarifying" changes to the 1985 definition of "applicable"195 and "relevant and appropriate."196 A requirement would continue to be "applicable" if its jurisdictional prerequisites apply to the site or the response activity. EPA emphasizes that determining whether a requirement is "relevant and appropriate" is a two-step process. Relevance is determined by comparing the action, location, or chemicals covered by the requirement to conditions of the site, release, or potential remedy; a requirement is relevant if it generally pertains to such conditions. To determine whether the requirement is appropriate, the comparison is further refined by focusing on the nature of the substances, the characteristics of the site, the circumstances of the release, and the proposed remedial action; the requirement is appropriate if, based on such comparison, its use is well-suited to the particular site.

Many of the litigants challenging the 1985 NCP complained that the requirement to meet "relevant and appropriate" requirements was too vague.197 However, the Agency asserted in the 1985 NCP that precision in defining these terms is impossible, since what is relevant and appropriate can only be determined in the context of individual sites. Indeed, after the 1986 amendments, CERCLA requires compliance with requirements that are "relevant and appropriate under the circumstances of the release."198 Nonetheless, the proposed rule does attempt to provide further clarification of what "relevant and appropriate" means. The rule lists nine criteria (not to be confused with the nine selection of remedy criteria) to assist in that determination:

(i) Whether the purpose for the statute and regulations under which the requirement was created are similar to the specific objectives of the CERCLA action;

(ii) Whether the media regulated or affected by the requirement are similar to the media contaminated or affected at the CERCLA site;

(iii) Whether the substances regulated by the requirement are similar to the substances found at the CERCLA site;

(iv) Whether the entities or interests affected or protected are similar to the entities or interests affected by the CERCLA site;

(v) Whether the actions or activities regulated by the requirement are similar to the remedial action contemplated at the CERCLA site;

(vi) Whether any variances, waivers, or exemptions of the requirement are available for the circumstances of the CERCLA site or CERCLA action;

(vii) Whether the type of place regulated is similar to the type of place affected by the CERCLA site or CERCLA action;

(viii) Whether the type and size of structure or facility regulated is similar to the type and size of structure or facility affected by the release or contemplated by the CERCLA action; and

(ix) Whether any consideration of use or potential use of affected resources in the requirement is similar to the use or potential use of the affected resource.199

The determination of relevance and appropriateness may also be assisted by classifying potential ARARs into three groups: (1) location-specific ARARs, such as restrictions on the use of wetlands, floodplains, or seismic zones; (2) chemical-specific ARARs, usually numerical limitations on the permissible concentration of a substance in a particular medium, such as maximum contaminant levels under the Safe Drinking Water Act; and (3) action-specific ARARs, such as performance standards for incinerators (for remedies involving incineration).

While the rule thus attempts to specify some factors that go into a "relevant and appropriate" finding, it does not attempt to mask or diminish the Agency's view that the determination of relevant and appropriate is highly discretionary, and essentially involves deciding which requirements make sense for remedying the site.

Consideration of Unpromulgated Policies

ARARs must be requirements; they must be legally enforceable and of general applicability.200 This means that government "policies," whether state or federal, are not ARARs. Non-binding criteria, guidance, advisories, and the like comprise a separate category that is "to be considered" (TBC). TBC information generally falls within three categories: (1) peer-reviewed health effects information with a high degree of creditability,201 (2) technical information on how to perform or evaluate site investigations or response actions, and (3) policy documents, such as EPA's groundwater policy.

Like their federal counterparts, state advisories and other nonpromulgated guidelines may still be considered in the selection process. State policies or practices,even if [19 ELR 10125] uniformly applied in state permits, will not be considered potential ARARs but may be considered in developing remedial alternatives.

Inclusion of the TBC category simply means that selection of remedial actions will be based on all pertinent information. The major difference between a TBC standard and an ARAR is that there is no legal requirement to meet the former. Conversely, the propriety of a TBC must be justified on its merits; ARARs are already valid legal standards.

Permit Requirements and the "On-Site" Definition

Section 121(e) of CERCLA exempts on-site response actions from the requirement to obtain federal, state, and local permits. The proposed rule would apply this exemption to response actions taken by EPA, other federal agencies, states, or private parties pursuant to CERCLA §§ 104, 106, or 122. The definition of "on-site" is important for this exemption and for triggering the off-site transfer requirements in § 121(d)(3).202 In § 300.400(e)(1), EPA proposes to define the term "on-site" to include the "areal extent of contamination and all suitable areas in very close proximity to the contamination necessary for implementation of the response action." The preamble asserts that "flexibility in defining a site is necessary in order to provide expeditious response to site hazards."203 According to the Agency, the need for permits or other administrative processes could delay implementation of a response action for several months.

The proposed definition of "on-site" is intended to avoid the need for permits in three types of situations.204 The first is where topographical considerations allow construction or placement of treatment units very close to the contaminated area, but not within the contaminated area itself. Second, containment of contaminated material must of necessity include construction that is outside the actual area of contamination. Third, a system to intercept and treat contaminated groundwater must be placed near the points of interception.

While the proposed definition of "on-site" is a broad one, as a matter of policy EPA will invoke the permit exemption only when the area within very close proximity to the contamination is necessary for implementation of the portion of the response action relating to the hazardous substance with which it is in proximity.205 For example, the Agency would obtain a permit for incinerating contaminated soil, even if the incinerator was located above the contaminated groundwater plume. In that situation, the remedy is not related to the area of contamination. However, the Agency would not obtain a permit for a groundwater treatment facility placed in the same location.

EPA's interpretation of "on-site" remedial actions also includes response activity that occurs on-site but results in the movement of hazardous substances off the site. For example, a direct discharge of wastewater would be considered an on-site activity if the receiving water body is on-site, even if the water flows off-site. While it may be objected that this involves an off-site transfer, any other interpretation would eviscerate the exemption in § 121(e). Remedies involving discharges into air or water would never be exempt, nor would many remedies involving placement on the land, since some migration of hazardous substances almost always takes place.

The Agency's authority to undertake response action without permits is further enhanced by EPA's interpretation that its discretion under § 104(d)(4) of CERCLA to treat non-contiguous facilities as one, where those facilities are "reasonably related on the basis of geography, or on the basis of the threat, or potential threat to public health or welfare or the environment" extends to § 121(e) as well. Section 104(d)(4) limits this discretion to "purposes of this section," but this includes § 104(g), which incorporates the requirements of § 121.

The on-site interpretation may be challenged as overly broad. However, there is little indication of Congress' intent in enacting the provision. Congress likely adopted the approach set forth in the 1985 NCP, which in turn was based on the requirement in CERCLA § 104(c)(3) that states assure acceptable disposal facilities complying with RCRA requirements for the off-site transfer of hazardous substances. One may conjecture that Congress intended that to ensure that waste transferred off-site does not create a new Superfund site; thus it must go to a facility that is permitted under applicable law, with the concomitant oversight of a federal or state regulatory agency. In contrast, implementation of an on-site remedy does not create a new site, but is an improvement on the existing situation. Moreover, the on-site construction activities are part of the remedial action conducted or overseen by EPA, and might thus be considered subject to sufficient safeguards, even if the construction takes place in areas that are in close proximity to the site.206 By contrast, the management of waste at off-site facilities is not specified in the ROD; indeed, RODs calling for off-site transfer seldom specify which off-site facility is to be used.

The Agency's broad definition of "on-site" has had some initial success. Nonetheless, the preamble describes several other possible approaches to the definition of "on-site."207 The first would define the term as "the areal extent of surface contamination." This definition, based on the RCRA definition of a hazardous waste management area, would be more exact, but would not apply to sites where the primary problem is contaminated groundwater, and would require permits for remedies constructed in very close proximity. The preamble expresses considerable concern about delays endemic to the permitting process.208 The second alternative is to define "on-site" according to the definition of "facility" in § 101(9) of CERCLA:

any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned [19 ELR 10126] treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or any site where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel.

This approach would avoid the first, but not the second, drawback of the previous alternative. The third alternative is to define "on-site" as the facility plus any contiguous area necessary for carrying out the response. This would address the problems presented by the other alternatives, but would restrict the Agency's flexibility to locating treatment facilities. Also, the scope of the term "contiguous" is not obvious. The fourth approach would define "on-site" to encompass the area having the same legal ownership as the primary contaminated areas. Depending on the site, this approach could expand or restrict the Agency's flexibility. However, legal property boundaries do not necessarily correspond to the area of contamination, and are subject to change.

The proposed on-site definition does not go as far as some would like. The Hazardous Waste Treatment Council petitioned EPA to exempt treatability studies conducted to support decisionmaking at CERCLA sites by defining the facilities at which treatability studies are conducted as being "on-site." Although acknowledging the importance of treatability tests, EPA concludes that any adjustment of permitting requirements to encourage treatability testing should be accomplished directly by modifying the applicable RCRA regulations. The Agency rejects the contention that the term "on-site" can extend to a distant facility merely because it is conducting a treatability test for a CERCLA site.

Other Administrative Requirements

The Agency interprets the permitting exemption in § 121(e) to extend to other types of otherwise necessary administrative approval. In addition, EPA asserts that "administrative" requirements are not ARARs and thus need not be met.209 In addition to § 121(e), the EPA preamble points out that CERCLA requires compliance only with "levels or standards of control"210 established under other laws. The Agency asserts that levels or standards of control are "basic performance objectives for the remedial action (e.g., acceptable exposure levels after the remedial action is completed)."211 Requirements that do not define a level or standard of control are considered administrative. The preamble classifies requirements such as reporting or recordkeeping within the latter category, particularly since the Superfund program has its own reporting and recordkeeping requirements to document that the selected remedy is in fact implemented.

The preamble concedes that it may not always be easy to distinguish between substantive and administrative requirements, and posits several means by which to distinguish the two: (1) the basic purpose of the requirement; (2) any adverse effect on the ability of the action to protect human health and the environment if the requirement were not met; (3) the applicability of other requirements that would provide functionally equivalent compliance; and (4) classification of similar or identical requirements as substantive or administrative in other situations.212

ARARs For Groundwater

MCLs & MCLGs. In an effort to provide some specificity, § 121(d)(2) lists several statutes whose standards must be attained if applicable or relevant and appropriate. Those statutes were already listed in the Appendix to the 1985 NCP as potential ARARs. CERCLA § 121(d)(2) goes further, however, by requiring remedial actions to attain MCLGs established under the Safe Drinking Water Act (SDWA) and water quality criteria established under the FWPCA, "where such goals are relevant and appropriate under the circumtnces of the release or threatened release."

The admonition to comply with MCLGs where relevant and appropriate was the result of a compromise during the 1986 amendments process between those who wanted to establish MCLGs as the standard for groundwater cleanup, and those (including the EPA Administrator) who believed that the goals were just that — goals — and were not intended to be the basis for groundwater cleanup. The SDWA requires EPA to promulgate national primary drinking water standards, including maximum contaminant levels (MCLs), which represent the maximum permissible concentration for a contaminant in water that is delivered to any user of a public water system.213 The SDWA also requires EPA to establish MCLGs214 at levels at which no known or anticipated adverse human health effects may occur, with an "adequate margin of safety."215 MCLGs for carcinogens have all been set at zero, since there is no level at which no effects are anticipated.216

An MCL is required to be set as close as "feasible" to the respective MCLG, based on the use of the best available technology, taking cost into consideration.217 Although the SDWA does not specify protectiveness as a factor in setting MCLs, EPA asserts that "MCLs are fully protective of human health and, for carcinogens, fall within EPA's acceptable individual lifetime risk range of 10<-4> to 10<-7>."218

The preamble219 affirms a guidance document220 in which [19 ELR 10127] EPA stated that for surface or groundwater that is or may be used for drinking, MCLs are generally relevant and appropriate as cleanup standards. In the guidance document, EPA concludes that "MCLs are protective of human health and represent the level of water quality that EPA believes is acceptable for over 200 million Americans to consume every day from public drinking water supplies."221

EPA recognizes the need to set more stringent standards than MCLs in situations where multiple contaminants or pathways of exposure heighten risk to human health, or where there are more sensitive environmental receptors. In such cases, the guidance and the proposed NCP provide that EPA would determine whether risk posed by such multiple contaminants or pathways exceeds 10<-4>. If so, the Agency would evaluate the advisability of imposing more stringent standards, considering MCLGs, EPA's policy on use of appropriate risk ranges for carcinogens, technological limitations, and other factors.222

Many have charged that the Agency's policy ignores the statutory mandate to comply with MCLGs. To be sure, the Agency's policy does not leave much room for compliance with MCLGs, except for non-carcinogens, where they are generally equal to MCLs. However, § 121 by its terms requires compliance with MCLGs only where "relevant and appropriate"; it is presumably within EPA's province to determine what is "relevant and appropriate under the circumstances of the release." While a reading of the statute that deprives a provision of meaning is not favored, the Agency could even claim the discretion never to find MCLGs for carcinogens relevant and appropriate. MCLGs seek to eliminate all risk, but achievement of a zero-risk level is not among the Agency's goals under Superfund, nor is it consistent with the overall tenor of the statute. For example, provisions on cost-effectiveness and permanence to the maximum extent practicable would be of little effect if groundwater always had to be cleaned up to absolute levels, assuming that could be accomplished at all.

Federal Water Quality Criteria. Federal Water Quality Criteria (WQC) are non-enforceable guidelines developed by EPA under the FWPCA. EPA has published WQC for protection of human health and aquatic life. The criteria include "threshold level" concentrations (i.e., levels that cause no appreciable adverse effects) for non-carcinogens and concentrations corresponding to various risk levels for carcinogens. EPA, having last revised the criteria in 1980, no longer updates the criteria. Rather, the Agency maintains a peer-reviewed data base of information respecting the health effects of various concentrations of chemicals. This information often supersedes the WQC. In such cases, as CERCLA provides, WQC would not be followed.

WQC serve as guides for state governments assessing the toxicity of a contaminant, and may be used in setting state water quality standards (WQS) for surface water under § 303 of the FWPCA. States designate the use of a given water body based on its current and potential use and may apply the WQC to set pollutant levels that are protective of that use. State WQS are enforceable standards, promulgated by a state and approved by EPA, and represent the level of a contaminant that has been determined to be protective of a particular designated use. Accordingly, WQS will generally be applicable or relevant and appropriate for determining cleanup levels, rather than a FWQC. Unfortunately, WQS for toxic pollutants are rarely expressed as numerical limitations — more often they consist of a prohibition of "toxic chemicals in toxic amounts" — and are of limited utility in selecting a cleanup level.

Given the existence of EPA's large data base on toxic chemicals, it is unclear why Congress included the provision specifically mentioning WQC. WQC are not regulations, and they have not been updated since 1980. Furthermore, while they apply only to surface water, the statute provides that in determining whether or not WQC are relevant and appropriate, "the President shall consider the designated or potential use of the surface water or groundwater, the environmental media affected, the purposes for which such criteria were developed, and the latest information available."223

The purpose of the WQC for human health is to identify protective levels from two routes of exposure — drinking the water and consumption of aquatic organisms, primarily fish. Most WQC specify levels for exposure from both routes, as well as from fish consumption alone. Whether a WQC is relevant and appropriate, and which component is appropriate, depends on whether exposure via either or both of these routes is likely to occur, and thus on the designated use of the water body.

The Agency's view that MCLs represent the level of quality EPA has determined to be safe for drinking diminishes the significance of the WQC. The preamble states that when a promulgated MCL exists, the WQC for that substance would not be relevant and appropriate, unless risks from sources other than drinking water are involved.224 When MCLs are not available, a WQC (if not superseded) would probably be relevant and appropriate for water that is or may be drunk.

The primary situation where WQC could be applicable or relevant and appropriate is where aquatic organisms are threatened. WQC address the direct hazard to aquatic organisms, as well as the indirect threat to humans through consumption of such organisms. MCLs only reflect exposure from drinking the water.

Alternative Concentration Levels. CERCLA § 121(d)(2)(B)(ii) allows the use of alternative concentration limits (ACLs), "to those otherwise applicable for hazardous constituents in groundwater," if specified conditions are met.225 When the likely point of human exposure [19 ELR 10128] is beyond the facility boundary, this provision requires a determination that the groundwater discharging into surface water will not cause a statistically significant increase of contaminants in the surface water. Moreover, the remedial action must include enforceable measures to prevent use of any contaminated groundwater. EPA proposes to use ACLs for the Class I and II groundwater226 when these conditions are met and cleanup to MCLs or other protective levels is determined not to be practicable. In addition, the proposed rule would require consideration of an alternative remedy that would partially restore groundwater to levels that could reasonably be treated by public water treatment systems.227

RCRA as a Source of ARARs

The major potential source of ARARs is RCRA, which regulates the transportation, treatment, storage, and disposal of hazardous waste. RCRA and CERCLA are often said to be "complementary": one addresses active hazardous waste management and the other past disposal practices.228

When RCRA IS "Applicable." The RCRA hazardous waste (Subtitle C) regulations apply only to wastes that are specifically listed by EPA or exhibit a hazardous characteristic established by the Agency.229 Second, the hazardous waste must be treated, stored, or disposed after the effective date of the RCRA requirements under consideration. This latter requirement may be met if the waste was independently managed after the applicable date, or if the activity at the CERCLA site constitutes treatment, storage, or disposal as defined by RCRA.

When EPA is confronted with a mixture of various hazardous substances, it is often difficult to determine whether RCRA-listed wastes are present. Most of the RCRA listings depend on the source of the waste. The preamble suggests using "available site information, manifests, storage records, and vouchers in an effort to ascertain the source," but when sufficient information is not available, permits the assumption that the wastes are not listed RCRA hazardous wastes.230 Even if a waste is not known to be a RCRA-listed waste, it may still exhibit a RCRA hazardous characteristic. The lead agency or PRP conducting the action must determine if the wastes exhibit a RCRA characteristic. Such a determination may be made through testing, or by "applying knowledge of the hazard characteristic in light of the materials or processes used."231

Once a waste is determined to be hazardous, RCRA is applicable if there has been treatment, storage, or disposal of the waste. Wastes that were treated, stored, or disposed of prior to November 19, 1980, and are left untouched by the CERCLA action, are not generally regulated under Subtitle C of RCRA. Therefore, placing a cap over such wastes during a CERCLA action would not trigger "applicable" RCRA closure requirements. However, if the CERCLA action itself involves treatment, storage, or disposal, as those terms are defined by RCRA, then Subtitle C regulation will be applicable.

For purposes of determining what constitutes "disposal" — and thus the applicability of RCRA Subtitle C requirements — EPA borrows the definition of land disposal in RCRA § 3004(k). Under this definition, movement of hazardous waste into a unit is "disposal," but movement of hazardous waste entirely within a unit is not. The concept of "unit" originated in RCRA, as a rather discrete area where waste is placed. EPA's RCRA regulations define "hazardous waste management unit" as

a contiguous area of land on or in which hazardous waste is placed, or the largest area in which there is significant likelihood of mixing hazardous waste constituents in the same area. Examples of hazardous waste management units include a surface impoundment, a waste pile, a land treatment area, a landfill cell, an incinerator, a tank and its associated piping and underlying containment system and a container storage area. A container alone does not constitute a unit; the unit includes containers and the land or pad upon which they are placed.232

By comparison, CERCLA sites are likely to contain areas of contamination with differing levels of concentration of hazardous substances. EPA characterizes such areas as a "unit," usually a landfill (which under RCRA is a catchall category). RCRA disposal requirements are thus applicable to RCRA hazardous waste that is moved into or out of the area of contamination.

Conversely, where waste is merely "consolidated" within a unit (often consisting of an area of contamination), RCRA will not be applicable. However, if waste is removed from the ground, treated in another unit (such as a tank or incinerator), and redeposited where it came from, disposal has occurred, because the waste has been placed from one unit (the treatment unit) into another (the landfill/area of contamination).233

These constructs may seem artificial to some. They are borne of the sentiment that the RCRA regulatory requirements, considerednecessary (either by Congress or by EPA) to protect human health and the environment, are fine for a preventative program governing the ongoing management of hazardous waste by commercial facilities, but involve greatly increased costs when applied to remedial or corrective actions, and do not necessarily make sense in a government-sponsored cleanup program.

Perhaps the prime bogeymen in this regard are RCRA [19 ELR 10129] land disposal restrictions, which are triggered by placement of hazardous wastes into a land-based unit. In the 1984 amendments to RCRA, Congress set forth a detailed schedule according to which the disposal of hazardous wastes was to be banned (or restricted, in some cases), unless EPA promulgates regulations establishing treatment standards for such wastes.234 EPA has interpreted the statute to require regulations based on "best demonstrated treatment technology."235 The LDR regulations are thus technology-based, and do not necessarily reflect the Agency's judgment on the level of treatment that is necessary to protect human health or the environment. For that reason, and because cost is not a factor in setting the regulations, the Agency has attempted to find some flexibility in applying land disposal restrictions in the remedial and corrective action context. A broad definition of the term "unit" (thus minimizing instances of land disposal, or "placement into a unit") would provide flexibility under CERCLA.

When RCRA Is Relevant and Appropriate; Closure. The interpretation of RCRA's jurisdictional limitations can thus restrict the extent to which RCRA is "applicable." While legal line-drawing has less bearing on CERCLA's requirement to meet "relevant and appropriate" requirements, the Agency has taken the position that when requirements are not applicable, it has considerable discretion in making "relevant and appropriate" determinations. In the Agency's view, the notion that a requirement must be "appropriate" as well as "relevant" carries with it the discretion "to identify discrete 'appropriate' portions of a regulation which may be mixed with 'appropriate' portions of other regulations in a manner that makes good environmental sense for the site," on the theory that some requirements in a regulation "may be relevant (in that they address in a broad sense the same problem as is faced at the CERCLA site) but not appropriate because the requirement is not well-suited to the circumstances at the CERCLA site."236

The preamble stresses the need to select "appropriate" portions of "relevant" requirements in its discussion on RCRA Subtitle C closure requirements.237 Those requirements seek to ensure that regulated units, once closed, will not threaten human health or the environment. Under the RCRA regulations, owners and operators of surface impoundments have two closure options. The first option, "closure by removal" (or "clean closure"), requires that all waste residues and contaminated liners and subsoils be removed or decontaminated. Clean closure requires a demonstration that any remaining contaminants will not affect any environmental medium beyond EPA-recommended limits, and that direct contact will not threaten human health or the environment.238 This requirement does not allow for environmental fate and transport modeling to determine exposure levels outside the area of contamination. The level of cleanup required has been termed "drinkable leachate" and "edible soils"; the theory is that the owner and operator may "walk away" from the site without further management and without fear of any future threat to human health or the environment.

The second option, "closure with waste in place" or "landfill closure," where contaminated materials remain above health-based levels after closure, requires a final cover over the unit, post-closure care, groundwater monitoring, and corrective action if the groundwater protection standards are violated. Thus, in landfill closure, waste is contained on site, subject to monitoring, maintenance, and corrective action, where necessary. Deed and plat notice is required, as is EPA's permission in order to build over the site.

The RCRA closure regulations do not currently permit reliance on limited exposure potential to ensure protection of human health and the environment. In other words, the regulation does not allow burying waste above health-based levels, even if as a practical matter it would not cause any harm, and would not be hazardous by the time it migrated to the groundwater. EPA has proposed a "hybrid" closure regulation, which would allow some combination of monitoring and almost-clean closure.239 However, that regulation has received considerable comment, and is unlikely to be finalized any time soon. Thus, where RCRA is applicable, one must remove virtually all of the waste, or construct a cap and undertake post-closure.

If RCRA is not applicable, however, the Agency asserts that although RCRA closure requirements may be "relevant" because they address the same kinds of wastes and activity involved at a CERCLA site, they may not be "appropriate" in some cases, such as those involving large municipal landfills or other large areas of dispersed, low-level soil contamination.240 One way to address such situations is to combine appropriate aspects of clean and landfill closure requirements to form an alternative, hybrid closure option. The preamble explains that the Superfund program has used both alternate clean closure and alternate land disposal closure. In the alternate clean closure approach, waste may be left in place in concentrations that are too high for unlimited exposure. However, if it can be established that exposure will not occur at those concentrations, the closure will be deemed adequately protective. For example, some degree of attenuation may be considered in assessing the hazard posed to groundwater by contaminated soils. Typically, short-term verification monitoring would be used to assure that the levels established at the site are protective of groundwater and other routes of exposure.

In alternate land disposal closure, the cover requirements may be relaxed if the wastes being contained do not pose a threat to groundwater. The preamble asserts that "direct contact and surface water threats, as well as other threats, can be adequately addressed with a soil cover," and that alternate landfill closure "is usually appropriate for wastes at low concentrations but still above 'walk-away' levels." According to the preamble, "EPA has found this type of closure to be useful in addressing wide areas of contaminated [19 ELR 10130] soils in a relatively inexpensive but very reliable manner."241

The alternative closure options are based on the RCRA closure requirements in a loose sense. Unlike EPA, parties subject to RCRA regulation are not free to comply only with "appropriate" portions of particular RCRA requirements. On the other hand, such parties are required to comply only with applicable, and not "relevant and appropriate" requirements. Nonetheless, by asserting the right to isolate "appropriate" portions of RCRA requirements, the Agency is implicitly concluding that some RCRA requirements are not necessary, at least in a cleanup program being run by the federal government. There is also frequent suggestion in the preamble that RCRA requirements are not appropriate for large areas of soil that are contaminated with low levels of hazardous substances that are not RCRA hazardous wastes. However, if that soil were contaminated with RCRA hazardous waste of similar or even identical character, the RCRA requirements would be applicable, and would have to be met unless a waiver could be invoked.

Corrective Action. RCRA corrective action requirements are aimed at virtually the same problems as CERCLA. There are two types of corrective action requirements under RCRA. First, 40 C.F.R. Part 264, Subpart F, establishes corrective action requirements for regulated hazardous waste management units. In addition, RCRA § 3004(u) and (v) require corrective action of all releases of hazardous wastes or hazardous constituents from any "solid waste management unit" (SWMU) at a facility where a regulated unit is located.242

The Subpart F regulations require cleanup of groundwater for each hazardous constituent to its background (naturally occurring) level; an MCL established under the Safe Drinking Water Act; or an ACL set by the Regional Administrator, as necessary to protect human health and the environment.243 In light of the Agency's policy generally to meet MCLs, the Subpart F regulations are generally of little consequence for CERCLA cleanup.

By contrast, the corrective action requirements for releases from SWMUs will address the same sort of situations confronted by the Superfund program and, unlike previous RCRA regulations, will be specifically designed for remedial actions. Accordingly, the new regulations currently in preparation could be significant for CERCLA response actions. However, it is unclear whether the corrective action regulations will impose cleanup standards much more specific than those already contained in CERCLA and the NCP. It is possible, however, that the corrective action regulations will specify how the design and operating RCRA requirements are to be applied in the corrective action context.

When and Where to Meet ARARs

Although CERCLA requires only that ARARs be attained at the completion of the remedial action, the proposed revisions244 would require that ARARs be met during the conduct of the remedial action as well.245 Thus, the NCP would require that treatment and storage of hazardous substances during the remedial action meet ARARs. In addition, activities such as incineration and effluent discharges of hazardous substances must meet ARARs even though the hazardous substances will not remain onsite at the completion of the action.246

CERCLA does not specify a point of ARAR compliance, although sometimes the ARAR itself will do so. For example, the Federal Water Pollution Control Act's requirement to limit effluent discharges of toxic pollutants based on the "best available technology economically achievable" must be met at the point of discharge. In contrast, water quality standards under that Act are ambient levels to be attained in the water body of concern. However, there are some situations where an ARAR does not specify where it is to be attained, or where a different compliance point may be appropriate for the site. EPA's policy is to attain ARARs at a point so as to ensure protection at all points of potential exposure.247 Thus, if the waste is not brought to health-based levels,248 it must be managed to prevent or limit exposure. For example, EPA's general policy is that groundwater should be cleaned up to MCLs, even though they apply only "at the tap." At each potential point of exposure, EPA assumes a "reasonable maximum exposure scenario."

Grandfathering ARARs

Given the length of time required to complete a remedial [19 ELR 10131] action after a ROD is signed, it is likely that new ARARs will be promulgated during that period. In many cases, the Agency will be aware of the development of those new ARARs, and so can consider them in selecting the remedy. However, there may be some regulations of whose development EPA is unaware, and it can never be foretold in advance that a proposed regulation will be promulgated as proposed.

Therefore, in order to assure that the remedial action can move forward expeditiously, EPA takes the position that once remedial action is initiated, the remedy need not achieve subsequently promulgated ARARs, but that such ARARs or other new information must be considered as part of the review conducted at least every five years under CERCLA § 121(c).249 Additional action would be taken then, in light of any new ARARs or other information, if necessary to ensure that the remedy is still protective.250

ARAR Waivers

The proposed rule would codify the ARAR waiver provisions in CERCLA § 121(d)(4), essentially repeating the statutory language. Like the statute, but unlike the 1985 NCP, the proposed rule does not require (unlike the 1985 NCP) that remedies closely approaching waived ARARs be selected.

Interim Remedies. The first waiver is for remedial actions that form only a portion of a larger action that will attain the ARAR when completed, commonly know as the "interim remedy" waiver. The preamble sets forth two common-sense limitations on the use of this waiver:

1. The interim measure should not directly cause additional migration of contaminants, complicate the site cleanup, or present an immediate threat to public health or the environment; and

2. The interim measure selected must not interfere with, preclude, or delay the final remedy, consistent with EPA's priorities for taking further action.251

Great Risk to Health and the Environment. This waiver speaks for itself, although it would seem that if an environmental regulation is so rigid that compliance would adversely affect the environment, there must be something wrong with that requirement. The preamble suggests two situations where this waiver might be invoked: First, it may be better to let sleeping dogs lie. For example, attaining the ambient concentration level for PCBs spread throughout river sediment might require widespread dredging of the sediments, causing an unacceptable release of the pollutant to the water body and damaging or disrupting the ecosystem. Waiving the ARAR for ambient PCB concentrations in the river sediment would eliminate the need to conduct such harmful dredging. Second, meeting an ARAR could also pose greater risks to workers or residents; a waiver might be necessary to avoid or mitigate those risks.

Given the fact that most regulations provide their own exemptions for these types of situations, it is unlikely that this waiver would be employed frequently.252

Technical Impracticability. This waiver is also borrowed from the 1985 NCP.253 The waiver may be invoked where the engineering methods necessary to construct and maintain an alternative that will meet the ARAR cannot reasonably be implemented, or where the potential for the alternative to continue to be protective into the future is low, either because the continued reliability of technical and institutional controls is doubtful, or because of inordinate maintenance costs. Cost can be a factor in invoking the waiver, if it calls into question the long-term reliability of the alternative.

Equivalent Standard of Performance. This new waiver254 is susceptible to a very broad interpretation, if one expansively interprets "standard of performance" to mean a qualitative level of environmental protection. Such an interpretation, however, would deprive § 121(d)(2) of much of its force: since § 121(b) already requires remedies to be protective, and invoking the § 121(d)(4)(D) waiver for alternatives that are protective but do not meet the ARAR would essentially mean that ARARs do not have to be met. The CERCLA Reauthorization Conference Committee Report puts the following limiting gloss on the provision:

Subsection (d)(4)(D) allows the selection of a remedial action that does not comply with a particular Federal or State standard or requirement of environmental law, where an alternative provides the same level of control as that standard or requirement through an alternative means of control. This allows flexibility in the choice of technology but does not allow any lesser standard or any other basis (such as a risk-based calculation) for determining the required level of control. However, an alternative standard may be risk-based if the original standard was risk-based.255

Under this interpretation, it would appear that the waiver can be rarely invoked, if ever, for there are few federal ARARs that absolutely require the use of a particular technology.

Inconsistent Application of State Requirements. The preamble envisions use of this waiver in two situations: (1) where state requirements have never been applied and there is evidence that the state does not intend to apply them elsewhere, or (2) where state standards have been variably [19 ELR 10132] applied or inconsistently enforced.256 The preamble presumes a standard to have been consistently applied unless there is evidence to the contrary.257

Evidence of inconsistent application is objective; it is obviously more difficult to show an intention not to apply the requirement elsewhere. An intention may be discerned from policy statements, legislative history, site remedial planning documents, or state responses to federal-lead sites.

This waiver relates closely to the issue of whether requirements promulgated by a regional or local authority within a state are to be considered ARARs. For example, some regional water quality boards have substantial regulatory authority under state law.258 Other states incorporate local zoning or land use laws by reference.259 If a regional or local requirement is applicable by virtue of its incorporation in a state statute or regulation, it is not clear whether invocation of the inconsistency waiver would require a finding that (1) the requirement is not consistently applied on a state-wide basis; (2) the requirement is not consistently applied within the area of its jurisdiction; or (3) the state has not consistently applied regional and local requirements in state implemented remedial actions.

Fund Balancing. The Fund-balancing waiver260 is derived from the 1985 NCP, and has been invoked by EPA only once.261 The waiver would be used if the cost of meeting an ARAR would significantly reduce the availability of the Fund for other sites. The preamble also announces and solicits comment on EPA's intention of establishing a monetary threshold (such as some multiple of "average" remedial costs for similar sites) for "routinely considering" invocation of the waiver.262

Discussion

The requirement to meet ARARs, particularly when not "applicable," has been the source of continuing controversy. It is certainly logical to conclude that regulations designed to protect human health and the environment, requiring the expenditure of hundreds of millions of dollars by industry, should be met in Superfund cleanups, even if they are not applicable because of some jurisdictional "technicality." However, the preamble to the proposed NCP seems to reflect EPA's dissatisfaction at having its remedial efforts slowed and complicated by the need to comply with a welter of requirements that a good engineer may not deem necessary for the site. Hence the emphasis on the need to find that requirements are relevant and appropriate; hence the determinations to interpret the § 121(e) permitting exemption broadly and not to comply with administrative requirements.

Apart from EPA's understandable misgivings about requirements that impede its cleanup efforts (which after all, are the main criteria by which the Superfund program has been judged), the proposition that what's good for the goose is even better for the gander, if applied to a logical extreme, could have far-reaching consequences. Congress and EPA have imposed a detailed and stringent regulatory scheme for hazardous waste under RCRA, on the understanding (even if unstated) that it applies to a relatively limited universe of hazardous waste, although EPA has broad authority to expand the list of hazardous wastes, and land disposal restrictions apply to such wastes six months after listing. Whether the same requirements would have been enacted if they would apply to all hazardous constituents is a matter of conjecture, but the stakes would have been considerably higher. Many of the more exacting requirements, such as the restrictions on land disposal, are prospectively oriented, with the view of ensuring that the disposal of hazardous waste will be subject to stringent safeguards, thus minimizing the need for future remedial action and discouraging future generation of waste. There is no suggestion in the legislative history to the land disposal restrictions, or in the preambles to EPA's regulations promulgated thereunder, that the requirements were developed on the assumption that they would apply to all hazardous constituents.

In addition, while it may be conceptually attractive to say that RCRA provides the substantive cleanup standard for all of those constituents, it may also be argued that some RCRA requirements, such as the land disposal restrictions, were established not because they were necessary in individual cases to protect human health or the environment, but rather to implement a general goal of minimizing the land disposal of untreated hazardous waste, a goal that does not require slavish adherence in the Superfund remedial context. If so, rigid application of those requirements could impose a heavy, costly, and unforeseen burden on the Superfund program, one never envisioned when the RCRA provisions were enacted or regulations promulgated. The difficulty with such an argument, however, is the Congressional finding in RCRA that "reliance on land disposal should be minimized or eliminated and land disposal … should be the least favored method for managing hazardous wastes."263 In addition, the legislative history of the land disposal restrictions is replete with statements that land disposal of untreated hazardous waste in inherently unreliable.264 Moreover, while most RCRA requirements, including land disposal restrictions, may be preventative in nature, and arguably were not designed for remedial purposes, remedial [19 ELR 10133] actions obviously do need to prevent further releases. The same measures needed to prevent a release may not always be appropriate for curing that release, but presumably are pertinent to avoiding future releases from the remediated site. That Congress intended for land disposal restrictions to apply in some fashion to Superfund cleanup actions is indicated in RCRA § 3004(d)(3) and (e)(3), which grant a two-year "capacity variance" for Superfund soil and debris wastes.

Remedial Design, Remedial Action, and Operation and Maintenance

After a remedy is selected, the Agency proceeds to draft the remedy's specifications, a process called remedial design (RD). The actual physical construction of the remedy is called remedial action (RA). Operation and maintenance (O&M) is often needed to maintain the physical integrity of the RA. The proposed revisions would codify this post-selection process.

Although the ROD may not specify all of the details of RD/RA, those activities must be consistent with and flow from the remedy selected in the ROD. Depending in part on the specificity of the remedy selected in the ROD, it may not be possible to identify all ARARs (particularly action-specific ARARs) prior to remedial design, or even prior to RA. The proposed rule makes clear, however, that all ARARs must be met during the RD/RA.265

The proposed revisions address the potential for conflict-of-interest on the part of remedial action contractors who are potentially responsible parties. Section 300.435(d) would require potential contractors to disclose all information that might bear on their liability under § 107 of CERCLA, including the status of their parent companies, their affiliates, and their subcontractors. The new paragraph also would require the lead agency to follow certain procedures when awarding remedial action contracts in order to safeguard against contractor conflict of interest. Contractors determined to have conflicts of interest that would affect their performance would be ineligible. The proposed revisions also include criteria for exercising the statutory authority to continue interim remedial actions where recontracting for additional work is required.266

Operation and maintenance is the final step in the remedial process. EPA has generally required states to pay all O&M costs (after a "shakedown" period to confirm that construction was satisfactory) based on the requirement in § 104(c)(3) that the state "assure all future maintenance." Because states need only pay 10 percent of other remedial costs, it is important to know when O&M begins. Section 104(c)(6) of CERCLA provides relief to states by specifying that "completed remedial action" (as opposed to O&M) includes not only "completion of treatment or other measures, whether taken on site or off site, necessary to restore ground and surface water quality to a level that assures protection of human health and the environment," but also "operation of such measures for a period of up to 10 years after the construction or installation and commencement of operation." Proposed § 300.435(f) would codify this, but specifies that during the initial 10-year period the maintenance of source control measures to prevent further contamination and treatment of groundwater primarily to provide drinking water (rather than restoring the contaminated aquifer) are not covered by § 104(c)(3) and thus are state responsibilities. The preamble solicits comments on this restrictive approach, and on the advisability of interpreting the 10-year restoration provision more broadly. At issue is whether the State pays all or only 10 percent of the relevant maintenance activities.267

Comparison of Remedial and Removal Actions

EPA's authority to respond under CERCLA is divided into two broad categories: removal action and remedial action. The statutory requirements for the two types of action are quite different. Remedial actions must be selected in accordance with the § 121 cleanup standards and the public participation requirements under § 117. Remedial actions may not be taken unless the state in which the release is located assures payment of 10 percent of the costs of the remedial action.268 Effective October 17, 1989, remedial actions may not proceed unless states also assure the availability of facilities adequate to destroy, treat, or secure all hazardous wastes expected to be generated within the state for the following 20 years.269 In addition, Fund-financed remedial action is generally precluded at federally owned facilities.270 By contrast, removal actions are subject to few statutory restrictions. The most significant are the limitations of cost up to $ 2 million and duration up to one year, subject to specified waivers.

The statutory definitions of remedial actions and removal actions overlap considerably. While removal actions are generally short-term responses to stabilize conditions that threaten human health or the environment and mitigate near-term threats,271 the dividing line between removals and remedials has not been clear. In the preamble, EPA asserts that "the removal program is intended to address releases that pose a relatively near-term threat that can be addressed within the statutory limits. The remedial program is intended to address significant releases that cannot be addressed under the removal program."272 However, the Agency specifically declines to distinguish between removal and remedial actions through use of numerical trigger levels, explaining that other factors, such as whether a discrete point source can be removed, may be more important than chemical concentrations in determining which type of action to take. Moreover, the Agency may at any time switch course between remedial and removal actions, and emphasizes the need for a coordinated approach "to ensure that the most significant threats are addressed in the most efficient and effective [19 ELR 10134] manner." Given the definitional overlap, and the preamble's rather expansive interpretation of the "removal consistency waiver,"273 any limitations on the use of removal authority are more likely to be a function of prudential Agency decisionmaking, rather than statutory or regulatory definitions.

State Involvement

CERCLA was originally enacted in 1980 over the vigorous objection of then-Representative David Stockman (R. Mich.) and others who urged that the responsibility for cleaning up hazardous waste sites rested with the states, and that at most Congress should authorize grants of federal money to assist in that task.274 While Mr. Stockman's approach was rejected, states have in fact assumed an ever-increasing role in CERCLA's implementation. The 1985 NCP encourages state participation in CERCLA remedies through the use of contracts and cooperative agreements. SARA enhanced the state role by requiring the attainment of state ARARs (formerly only to be considered) by EPA, requiring the development of regulations assuring "substantial and meaningful" state involvement in the initiation, development, and selection of remedies, giving states procedural rights to challenge remedies that waive ARARs, and authorizing states to enforce any ARAR to which the remedy is required to conform.275

The proposed NCP revisions incorporate existing state participation provisions and seek to implement the new statutory state participation requirements in Subpart F. The preamble declares EPA's intention that states and EPA "function as partners," and encourages states to participate in all facets of the response process.276

Remedial actions are termed "state-lead" when EPA and the state277 enter into a cooperative agreement under which the state agrees to undertake response activities in exchange for federal funding. In such cases, the state is the "lead agency" and EPA is the "support agency." Remedial actions are termed "EPA-lead" when the Agency undertakes the response actions; the lead and support agency roles are then reversed. States may also be designated as the lead agency for non-Fund-financed actions taken pursuant to state enforcement authority. Subpart F governs EPA's involvement in state-lead response and state involvement in EPA-lead response.

SMOAS

The general framework for interaction between EPA and a state may be set forth in a "Superfund Memorandum of Agreement" (SMOA). SMOAs are generally not mandatory,278 but are required in order for the state to recommend a remedy for EPA's concurrence or for the state to be regarded as the "lead agency" for a non-Fund financed remedy.

The SMOA does not transfer money or authorize particular responses, but is intended to establish a general consultation process and other procedures to be used at Superfund sites within the state, to be implemented through more detailed site-specific documents, such as cooperative agreements and Superfund State Contracts.

The Remedial Process

Proposed § 300.515 sets forth a scheme for state involvement in the remedial response. The section also implements SARA's provision that Indian tribes may enter into cooperative agreements for response actions on Indian land,279 and sets forth some minimal criteria that tribes must meet. The proposed NCP generally accords Indian tribes the same treatment as states, and the proposed definition of "State" includes Indian tribes, except where specifically noted otherwise.

The preamble does not include any criteria for allowing a state to assume lead agency responsibilities at an NPL site, but solicits comment on several criteria under consideration: overall expertise, legal authorities, administrative and contracting capability, financial management systems, availability of general resources, complexity of the site, availability of site-specific resources, workload and expertise, past federal or state actions at the site, and past state cleanup activities."280

In the pre-remedial phase, when potential sites are evaluated, scored, and listed on the NPL, the proposed NCP would require EPA to consult with the state on EPA-initiated draft Hazard Ranking System scoring packages, and allow states a 20-to 30-day review and comment period prior to publication of the proposed listing. In addition, as required by SARA, EPA must obtain state concurrence in order to delete a site from the NPL.

States may be awarded a cooperative agreement to prepare the RI/FS. Otherwise, state participation in the RI/FS would mainly involve identification of state ARARs and TBCs. Section 300.515 would establish a process for identification of both state and federal ARARs and TBCs through lead and support agency consultation. This process, which may be established in the SMOA, requires initial identification of potential ARARs and TBCs during the scoping of the RI/FS. Additional ARARs are to be identified prior to the detailed analysis of alternatives, and again throughout remedial design.281 The lead agency must identify its own ARARs and TBCs and solicit the support agency's ARARs and TBCs. CERCLA § 121(d)(2) requires that state ARARs be met if they are communicated to EPA in a "timely manner." The proposed rule would interpret this phrase to require identification of ARARs and TBCs [19 ELR 10135] no later than the early stages of the RI/FS comparative analysis, so that the lead agency has sufficient time to consider and incorporate ARARs and TBCs into the remedy selection process without inordinate delays and duplication of effort.282 In the absence of a SMOA, the state must identify ARARs within 30 days of their solicitation, during the RI/FS phase.283 The SMOA may specify different time periods. The preamble recognizes that ARAR identification may continue even into the remedial design stage, as the remedy becomes more sharply defined.284

The proposed rule could also require EPA to formally notify and respond to states on any intention to waive state ARARs, or any disagreement that a particular requirement is an ARAR.285 The preamble suggests that EPA's Assistant Administrator for Solid Waste and Emergency Response be the final arbiter of such disputes.286

When the time has arrived to select a remedy, § 300.515(e)(1) would require that the lead agency and support agency consult and attempt to reach agreement on the proposed plan. The proposed plan would include a statement of the support agency's opinion on the preferred alternative. The proposed NCP stops short of allowing a state to select a Fund-financed remedy; if EPA does not concur with and adopt the state's proposed plan, the Agency will assume the lead for the proposed plan and preparation of the ROD. EPA may proceed with a proposed plan opposed by the state, but implementation of the remedy (if Fund-financed) will require the state's approval in the form of a cost-share.

The proposed revisions would specify a concurrence process. EPA would attempt to secure the state's concurrence in the selection of EPA-lead Fund-financed remedial actions. While EPA could select the remedy even if the state does not concur, the statutory cost-share requirements provide states with an effective veto over Fund-financed remedies.

At state-lead, Fund-financed sites, EPA may authorize the state to complete the RI/FS process and recommend a remedy for EPA's concurrence and adoption. Although developed by the state, the final selection of remedy would rest with EPA.287

The state may also seek EPA's concurrence on the selection of state-lead non-Fund financed remedies, although EPA concurrence is not generally required.288

In any event, at a state-lead site once EPA concurrence is obtained, the state is responsible for proper implementation. The state would be responsible for compiling and maintaining the administrative record and documenting and providing necessary information for cost recovery. However, the preamble states that EPA's concurrence in the selection and implementation of a remedy by a state would not preclude the Agency from exercising its CERCLA authorities if necessary to ensure compliance with the statute.289

Subpart F does not require that state remedies at non-Fund-financed sites conform to CERCLA or the NCP. However, the preamble suggests that nonconformance may have the following ill effects: (1) EPA will not concur; (2) EPA may refuse to designate the state as lead agency for any subsequent response activities; (3) states and PRPs may be deprived of the assurance that EPA will not find it necessary later to seek to compel further response actions; (4) EPA may be unable to delete a site from the NPL; and (5) state cost recovery efforts may be hindered.290

The actual remedial action may be undertaken by EPA or the state, pursuant to a cooperative agreement. In both cases, the proposed rule provides for a joint inspection of the remedy, to ensure that it conforms to the ROD and the remedial design.291

The proposed revisions would codify CERCLA § 121(f)'s requirement that EPA notify states of negotiations to be conducted by EPA with PRPs during each fiscal year. The preamble encourages states to participate in EPA-lead enforcement actions,292 and to conduct state-lead enforcement actions consistent with CERCLA and the NCP. The preamble states that federal financial assistance may be provided to support state-lead enforcement actions. The requirements outlined in § 300.515 for Fund-financed remedial response would apply to state-lead enforcement actions that receive Fund support.

Removal Actions

The proposed rule provides that states may perform removals pursuant to cooperative agreements, although only where EPA (as opposed to the Coast Guard) has removal authority.293 The revised NCP would require EPA to consult with states on all removal actions,294 and encourages states to assure post-removal site control, but stops short of imposing that as a requirement.295

While few state-lead, Fund-financed actions have been undertaken, the preamble states that "EPA will encourage State-lead removals to the extent practicable."296 However, [19 ELR 10136] the preamble evinces an intent to allow state-lead removals only in "non-time-critical" cases.297

Five Year Review

CERCLA requires that EPA review sites at least every five years if the remedial action "results in any hazardous substances, pollutants, or contaminants remaining at the site."298 The proposed NCP interprets this requirement to require review at those sites where hazardous substances remain above levels that allow for unlimited uses of the land,299 or if the standards initially used to define protective levels are subsequently changed.300

Public Participation and the Administrative Record

As the focus of the federal response effort has shifted from emergency cleanups of oil spills to longer-term responses at complex hazardous waste sites, the summary procedures characteristic of emergency police-type actions has, of necessity, increasingly yielded to a deliberative process more typical of federal agency decisionmaking. Correspondingly, the role of PRPs and the public in the response decisionmaking process has taken on increased importance.

Judicial review of agency decisionmaking is, of course, generally confined to the administrative record that was before the agency when the decision was made. Yet, perhaps because of the unique character of CERCLA, in which responsible parties may be required to implement or to pay for elaborate and expensive remedies selected by EPA, the Agency has had only mixed success in convincing district courts that review of response selections should be confined to the record before the Agency. From the Agency's perspective, record review is important. Aside from avoiding protracted trials on the merits of the remedy, it also avoids the burdens of discovery on Agency officials. Obviously, time spent in depositions and in court is time not spent on selecting and implementing other response actions.

Whatever the previous state of the law, after the 1986 amendments CERCLA provides for the establishment of an administrative record301 supporting the selection of a CERCLA response action, and for judicial review on that record, under an arbitrary and capricious standard.302 The statute also requires the promulgation of regulations establishing procedures for the participation of interested persons in the development of the administrative record.303

Remedial Actions

The statute sets forth the following minimum requirements for public participation in the selection of remedial actions:

(1) Notice to potentially affected persons and the public, accompanied by a brief analysis of the proposed remedial plan and alternative plans that were considered;

(2) A reasonable opportunity to comment on the proposed plan;

(3) An opportunity for a public meeting at or near the facility;

(4) An agency response to significant comments; and

(5) A statement of the basis and purpose of the selected action.304

The proposed public participation process (already widely used under CERCLA) is similar to that used in EPA permitting procedures under RCRA and the FWPCA305 and to the process for informal rulemakings under the Administrative Procedure Act (APA).306 Prior to initiating remedial action, under the proposed Subpart I, the lead agency would prepare a plan that (1) describes the remedial alternatives analyzed; (2) proposes a preferred remedial alternative; and (3) summarizes the rationale for selecting that alternative. The proposed remedial plan would also summarize formal comments received from the support agency and explain any proposed ARAR waivers.

Notice of the proposed plan (including a brief analysis) would be published in a major local newspaper, followed by a public comment period of at least 30 days.307 An opportunity for a public meeting would be provided, and a transcript of any such meeting made available. The lead agency would then prepare a written summary of significant comments and respond to them.

Following consideration of public comment, the lead agency would prepare a Record of Decision (ROD), to memorialize the adoption of a final remedial plan.308 RODs would be prepared both for comprehensive remedies and for partial remedies, called "operable units." The ROD would summarize the problems posed by a site, alternative remedial approaches, and the remedy to be undertaken, and would describe how the statutory requirements for selection of remedy are met, including whether the preference for treatment was met, and if not, why not. The ROD would also indicate expected cleanup or other performance levels, explain any significant changes from the Proposed Plan, describe whether a five-year review will be required, and when appropriate, commit to further analysis and selection of long-term response measures. After EPA adopted the ROD,309 a notice of availability would be published in a major local newspaper, and the ROD made available to the public.

[19 ELR 10137]

While the ROD would set forth the general character of the remedy to be implemented, actual details of design and construction would be worked out in the remedial design. To the extent that the actual remedy differs from that described in the ROD, CERCLA requires that EPA publish an explanation of the significant differences in a major local newspaper.310

The statute does not require any opportunity for additional public comment before implementation of a remedy that significantly differs from that set forth in the ROD. However, if review of the remedy is to be limited to the record, due process may require an additional opportunity for comment, at least by potentially responsible parties. The proposed rule indirectly addresses this issue by differentiating between mere "significant differences" and more serious "fundamental alterations" of the remedy selected in the ROD. Only the latter, defined as major changes that could not reasonably have been anticipated based on the alternatives described in the proposed plan or RI/FS report (or other information made available to the public), would require additional public notice and comment before final selection of remedy.311 Differences would be classified on the basis of their impact on the scope, performance, and cost of the remedy selected in the ROD.

The proposed rule would provide for public participation well before publication of the Proposed Plan. Community relations provisions are included throughout the proposed NCP, and are more elaborate than comparable provisions in the 1985 NCP. Public participation in the remedial process begins when a site is proposed for listing on the NPL. The proposed rule would codify EPA's practice of listing NPL sites through informal APA rulemaking. Before commencing remedial investigation field work, the lead agency would conduct community interviews with local officials, community residents, public interest groups, or other interested parties,312 "to solicit their concerns and information needs, and to learn how and when citizens would like to be involved in the Superfund process."313 The interviews may also yield information about PRPs or the nature or sources of hazardous substances at the site. The proposed revisions do not specify how the interviews should be conducted or exactly who should be interviewed; that would be decided at each site.

Community interviews are used to prepare a formal Community Relations Plan, which specifies the community relations activities expected during the remedial action. The proposed rule would also require establishment of at least one local information repository at or near the site, for public inspection and copying. The information repository would be established when the final RI/FS workplan is made available to the public, and would be used to satisfy the statutory requirement of making the proposed plan available to the public at or near the site. The repository would also include virtually all documents pertaining to the site or the response action; for example, it may contain press releases and newspaper articles, which would not necessarily be included in the administrative record, as they do not form part of the basis for the selected remedy.314 At about the same time that the information repository is established,315 an administrative record file316 would be established.

The administrative record must include all documents considered by the decisionmaker, especially those relied upon in selecting the response action. EPA anticipates that documents upon which the selection decision is based will generally be included in the administrative record file as soon as possible after they are generated or received, but no later than when the decision document is signed. EPA envisions quarterly or monthly updates of the file.317

The proposed rule sets forth the type of documents that "typically, but not in all cases," will be included in the record:

(1) factual information and data, and analysis of such information and data;

(2) guidance documents, technical literature, and policy memoranda;

(3) documents received, published, or made available to the public in connection with the response action;

(4) decision documents; and

(5) enforcement orders.318

The preamble includes an illustrative list of documents that should generally be in the record. Documents used to support a finding of "imminent and substantial endangerment" under § 106 of CERCLA are included; the preamble asserts that judicial review of such determinations should be limited to the record.

Documents avaialble when the record is first established would generally include a preliminary assessment report, site investigation report, the RI/FS work plan, underlying inspection reports, and the community relations plan. The RI/FS proposed plan and public comments, together with any other documents that could form the basis for the selection of the remedial action, would be added to the record, as generated.

The regulation also addresses the type of documents that should not go in the record.319 Logically enough, documents that do not form a basis for the selection of the response action need not be included in the record. The regulation specifies the following categories of such documents:

(1) Draft documents, internal memoranda, and staff notes, unless they were relied on in response action selection and never superseded by a final document, and those that contain [19 ELR 10138] material facts which do not appear in any other document included in the administrative record file; and

(2) Documents relating to liability of PRPs (unless they contain information, not contained elsewhere in the record, which forms a basis for the response action).

The preamble also states that data that have been rejected as inaccurate, or will otherwise not be considered or relied upon, need not be included in the record.320

The proposed rule recognizes that some privileged documents, such as those subject to attorney-client privilege, attorney work product exclusion, deliberative process privilege,321 and enforcement sensitive information, need to be in the record if they contain information, not included elsewhere, that forms a basis for the selection of a response action. Proposed § 300.810(d) would require that, where feasible, a non-privileged summary of such information be placed in the administrative record file. Whether or not such a summary is prepared, the confidential documents would be maintained in a confidential portion of the administrative record file, to be used if necessary in subsequent court proceedings. The index to the administrative record must list confidential or privileged documents.

Proposed § 300.825 would provide that the Agency need consider comments received after the close of the comment period only if they: (1) could not have been submitted during the comment period, and (2) provide critical new information relevant to the response action. This provision is similar to procedures followed in EPA rulemaking, where it is recognized that closure is needed in order to allow the administrative process to work.

However, if the second part of the test is met and the actual RD/RA has not proceeded too far, it may be inadvisable to ignore the new information.

As the selection of remedy is memorialized in the ROD, documents generated after the ROD is signed are generally inappropriate for the administrative record. They were not before the decisionmaker when the decision was made, and thus cannot bear on whether the decision was arbitrary or capricious. However, the proposed rule recognizes two situations in which the lead agency may add post-decision documents to the administrative record file.322

First, where the ROD reserves or does not address a portion of the response action decision, the lead agency would continue to add to the administrative record file documents that form the basis for that portion of the decision not addressed or reserved by the ROD. Where appropriate, the lead agency would provide public notice that the administrative record file for that portion of the decision continues to be available for public inspection and comment. Second, the "explanation of significant differences," required when the remedy differs significantly from that described in the ROD, will be included in the record, as will all documents that form the basis for the decision to modify the response selection decision. Of course, if a "fundamental change" is made to the remedy, the record will include all of the documents generated in the new selection of remedy process.

The proposed NCP would require that copies of the administrative record file be located at or near the site and at an office of the lead agency or other central location.323 The central location file would contain all documents that are part of the administrative record, except for certain verified sampling data, quality control and quality assurance documents, chain of custody forms, and publicly available technical literature. Those documents, which are part of the record, may be located elsewhere. The administrative record file at or near the site would generally be located at one of the information repositories, but due to the administrative burden involved, would not include all of the data in the record file.

Proposed § 300.805(b) provides that guidance documents considered in selecting the remedy, but not generated for the particular site at issue, may be maintained in a library at the central location. Publicly available technical literature not generated for the site at issue need not be located in the central library of guidance documents or in the administrative record file. However, guidance documents and memoranda generated for a particular site and technical literature that is not generally available would be included in the administrative record file.

An index would be included in the file at both locations, and would indicate where all items in the files are located and how they can be inspected. The confidential portion of the administrative record file would be located only in the central location.

Proposed § 300.800(a) provides that establishment of the record is the responsibility of the lead agency (which may be a state acting pursuant to a cooperative agreement). However, where states act as lead agencies, EPA has the final responsibility of selecting the remedy, and must assure sufficient documentation to allow judicial recovery of Fund expenditures. Accordingly, the proposed regulation reserves EPA's right to add documents to the record.

The proposed record requirements would apply only to response actions undertaken pursuant to CERCLA §§ 104, 106, or 111, not other cleanups, such as those conducted pursuant to state authority or voluntary private cleanups.324 The preamble solicits comment on whether EPA should require that states comply with administrative requirements in order to "expedite judicial proceedings" under § 107.325 If states hope to obtain review on the record under an arbitrary and capricious standard, they will likely need to provide for at least as much public participation as that required under these provisions.326

[19 ELR 10139]

Section 300.800(d) provides that these requirements would apply only to those sites at which the remedial investigation commences or the action memorandum (authorizing a removal action) is signed after the promulgation of the revised NCP. However, remedies at other sites would have to comply with the new regulations "to the extent practicable." EPA's view is that administrative records are required for all response actions, and judicial review of EPA's selection of a response action, even before the NCP revisions take effect, should be limited to the administrative record.327 Of course, the statutory public participation requirements have been applicable to any ROD signed after October 17, 1986, the effective date of SARA.

Public Participation in Removal Actions

Section 113(k)(2)(A) of CERCLA requires "appropriate" participation of interested persons in the development of the administrative record supporting removal actions. The proposed public participation procedures for removal actions are designed to allow for the expedited action frequently required in such actions.328 Emergency actions will continue to proceed with a minimum of public involvement. Conversely, long-term removal actions would be subject to the same type of public participation procedures as remedial actions. In general, the proposed rule seeks to provide for public comment before the selection of a removal action to the extent that time permits.

The proposed revisions establish two sets of requirements for administrative records for removal actions. The first category is "non-time-critical" removal actions, defined as those where, based on the site evaluation, the lead agency determines that there is a planning period of at least six months before on-site cleanup activities must be initiated.

The revised NCP would provide for the preparation of an "engineering evaluation and cost analysis" (EE/CA) where at least six months is available before the start of the removal.329 EE/CAs fulfill a function similar to a remedial action's Proposed Plan; they are to evaluate alternative technologies, explain the selection of the removal action, and document the decisionmaking process. Selection criteria would include factors such as protectiveness, technical feasibility, institutional considerations, reasonableness of cost, timeliness, and compliance with ARARs.

The proposed revisions would require publication of a notice stating that the EE/CA is available for public comment, along with a brief description of the EE/CA. The administrative record file for the removal action would become available for public inspection at the same time. The file would contain all documents relevant to selection of the removal action generated up through that date, and would be updated periodically thereafter. After a public comment period of at least 30 days, followed by a response to significant comments, the lead agency would issue an action memorandum documenting its final decision.

A community relations process similar to that provided for remedial actions would also be implemented for non-time-critical removal actions. First, community interviews would be conducted. Second, a formal community relations plan for the removal action would be developed from the information obtained during the community interviews. Third, at least one information repository would be established at or near the facility.

Section 300.820(b) would provide more limited procedures for time-critical removal actions,330 including emergency removal actions. The need to respond quickly may limit the degree to which the public may participate in the removal process. EPA attempts in the proposed rulemaking to balance the benefits of public involvement against the need to proceed quickly in emergency situations.

Under the proposed rule, for all time-critical removals (including emergencies), the administrative record file would be made available to the public no later than 60 days after initiation of on-site cleanup activity.331 The 60-day period is intended to allow the Agency to take all necessary measures to contain or stabilize immediate threats, before attending to administrative procedures.

The proposed revisions would then require, as appropriate, a 30-day public comment period, beginning at the time the administrative record is made available to the public. To the extent that removal action has not been completed, public comment could be considered as to any further action. However, if the removal action has been completed, public comment may be of little or no use. The preamble requests comment on whether public comment should be solicited on such activities.332 The preamble also solicits comment on other possible approaches to public participation in time-critical removals.333 First, the file could be made available immediately upon issuing the action memorandum, and the cleanup delayed until after the public comment period. Obviously, this approach would not allow for true emergency response, and could delay other time-critical responses.

Second, the file could be made available "promptly" after issuing the action memorandum, and public comment solicited and considered "as time allows." Although this approach could provide the flexibility necessary to ensure that public participation is limited only as necessary to ensure prompt response action, EPA is concerned that the "prompt" standard is too vague and potentially controversial,334 and that time-critical removals rarely permit the solicitation and consideration of public comment before initiating action.

Third, EPA could delay the availability of the record until 120 days (rather than 60 days) after beginning cleanup and then solicit public comment. The preamble declares [19 ELR 10140] that the increased cleanup time provided under this option generally does not justify the concomitant delay in public involvement.335

Fourth, the file could be made available after completion of containment and stabilization measures, at sites where disposal is needed (over 25 percent of removals do not require disposal). Disposal would then be delayed pending consideration of public comment. The preamble criticizes this approach because of the difficulty in defining when "containment" and "stabilization" are completed, and because of potential adverse effects inherent in delaying disposal.336

Fifth, the record could be made available as proposed, but without formal solicitation of public comment, given the need for quick action that generally is limited in scope and in alternative options. This approach, however, would not provide the public with an opportunity for meaningful participation for removal actions where the need for quick action is not strong.

For time-critical removal actions where on-site cleanup activities will last longer than 120 days, the community interviews, community relations plan, and information repository requirements would apply.337 In any case, the lead agency would still need to provide accurate and timely information to the public, and consider public concerns whenever possible.

Enforcement Actions

The proposed revisions would clarify that enforcement actions are subject to the same public participation requirements as are Fund-financed actions. In addition, CERCLA § 122(d) requires that if EPA enters into an agreement with a PRP to undertake a remedial action, the agreement must be incorporated into a judicial consent decree, and that the Department of Justice must provide a 30-day public comment period prior to its entry. If the proposed consent decree fundamentally alters the remedy selected in the ROD, EPA would notify the public of a proposed ROD amendment at the same time that the proposed consent decree is noticed. The same public comment period would suffice for the consent decree and the ROD amendment. Section 300.67(f) of the current NCP, which allows the community relations plan to be modified or adjusted at the direction of a federal district court, would be deleted, on the ground that the public participation requirements of CERCLA §§ 113(k) and 117 contemplate a separate community relations effort that is not controlled by litigation concerns.

Remedial Design/Remedial Action

As discussed above, changes in the remedy from that described in the ROD will be documented and published. Apart from that, the administrative record generally closes when the ROD is signed. However, the proposed regulation provides for continuing public involvement, or at least continuing community relations, throughout the remedial design and actual construction of the remedial action.338 The lead agency would continue to conduct community interviews and revise the community relations plan as necessary to ensure that public concerns about the remedial design and construction are addressed.

The preamble also solicits comments on other requirements, such as making available a description of the remedy prior to its completion, conducting a public information briefing prior to the initiation of on-site activity, or notifying the public of the beginning and end of the remedial action phase.339

The limitation of judicial review to the administrative record makes it essential that the record articulate a reasoned basis for the response action that accords with statutory requirements. Similarly, the restriction of review in § 113(h) to actions to enforce the remedy or recover costs puts a premium on meaningful public participation in the selection process. This is particularly true with respect to PRPs, who will be subject to money judgments to pay for response actions, and to substantial penalties for failure to implement a response action ordered by the Agency. If judicial review of such liability is to be limited to the record and subject to a deferential standard, courts will undoubtedly insist on full participation by liable parties in the development of that record and full consideration of their comments. Compliance with the proposed regulation should generally meet that standard, at least for remedial and non-time-critical removal actions. As for time-critical removal actions, it seems reasonable to limit public participation as exigencies require.340 Whether it also means that liability to pay for such actions may attach without any meaningful opportunity to challenge the removal action taken, except on arbitrary and capricious grounds, remains to be seen.

Other Significant Provisions

Removal Actions

Section 104(c)(1)(C) exempts removal actions from the $ 2 million/1 year limitations where "continued response action is otherwise appropriate and consistent with the remedial action to be taken." Although the proposed regulation does not address this exemption, the preamble explains that EPA intends to use the exemption:

1. To avoid a foreseeable threat;

2. To prevent further migration of contaminants:

3. To use alternate technology to reduce mobility, toxicity, or volume; or

4. To comply with off-site requirements.341

The Agency states that the exemption will primarily be used at proposed and final NPL sites, but reserves the right to use it at non-NPL sites "in limited circumstances." EPA has already used that exemption to complete an entire cleanup at a non-NPL site, apparently on the theory that the statutory phrase "consistent with the remedial action [19 ELR 10141] to be taken" includes situations where use of the exemption would avert the need for a remedial action.

Federal Facilities

Although the preamble states that a separate Subpart K will be proposed later to address federal facilities, the preamble also states: "Unless a provision specifically addresses Fund-financed activities only, all provisions in Subpart E (and throughout the NCP, as appropriate) apply to Federal facilities."342

Entry and Access (§ 300.400(d))

As amended, CERCLA § 104(e) provides clear authority for EPA to obtain access to private property to carry out its responsibilities under the Act, including the actual construction of remedial actions. Section 104(e)(5) authorizes the President to issue administrative orders for entry and access. Proposed § 300.400(d) includes criteria and procedures for exercising this authority. It also provides that EPA may secure access for potentially responsible parties conducting response actions pursuant to administrative orders or consent agreements. The inclusion of these criteria may help EPA to obtain warrants that would survive judicial review.343

Participation by Other Persons

Provisions from the current NCP on nongovernment participation (§ 300.25) and other party responses (§ 300.71) would be revised and consolidated in Subpart H. First, proposed § 300.700(c) lists NCP sections that nongovernmental entities (except for persons acting pursuant to orders issued under CERCLA § 106) must comply with (where appropriate) in order for their response actions to be considered consistent with the NCP for the purpose of cost recovery under § 107 of CERCLA.344 Substantive and procedural sections are listed; the Agency omitted only NCP provisions pertaining uniquely to government response. The list includes public participation requirements, except for emergency removal actions, RD/RA, and those related to establishment of an administrative record. EPA would also consider response action to be consistent with NCP public participation requirements if the person taking the response action complies with state or local requirements that provide a substantially equivalent opportunity for public involvement in the choice of remedy.

The proposed revisions would delete the proviso in current NCP § 300.71(a)(2) establishing a standard for determining whether governmental response actions are "not inconsistent with" the NCP.

The Agency also proposes to delete current NCP § 300.71(c) regarding certification of organizations to conduct site response activities on the ground that preauthorization of each response claim is a sufficient means of determining the capability of applicants to perform proposed response actions. EPA is also concerned that its certification of organizations would be used as a marketing tool, possibly leading to public misperceptions regarding the quality of performance by certified firms.

The proposed revisions would leave the preauthorization requirement intact, but would add a new paragraph to state that a claim by a party determined by EPA to be a PRP will receive EPA's prior approval to submit claims only in accordance with a CERCLA § 106 order, or a settlement with the federal government under CERCLA § 122.

Conclusions

In revising the NCP, EPA has had to contend with criticism from diverse corners. The Agency has been taken to task for undue delay in studying site problems, failing to implement the statutory mandates for permanent remedies relying heavily on treatment of hazardous substances, and relying on unproven treatment technologies. On the other hand, the Superfund program is subject to financial constraints imposed by the federal budget and by litigious PRPs. Despite the statutory mandate of a minimum number of remedial actions, the remedial process has become subject to an increasing number of procedural requirements. The need for expeditious action is countered by the need for public participation, and sufficient reflection and data gathering so as to ensure not only that the remedy is effective, but that costs can be recovered from responsible parties. The desire to share cleanup responsibilities with states is matched by an uneasiness that statutory remedial standards may be compromised.

The proposed NCP, much delayed by these competing concerns, attempts to accomodate them by reposing maximum flexibility in the remedial decisionmaker. Such flexibility may tax the ability of some remedial decisionmakers to comply with all statutory requirements, and, given the decentralization of EPA's decisionmaking process, may strain consistency in decisionmaking. Similarly, those petitioners who found the 1985 NCP impermissibly vague may not be unduly heartened by the proposed revisions. However, if the Agency's primary task is to maximize the cleanup of hazardous waste sites, a flexible approach may well be necessary to facilitate relatively expeditious response actions.

1. 42 U.S.C. §§ 9601-9675, ELR STAT. 44001-44081.

2. 40 C.F.R. § 300.

3. CERCLA § 105(b), 42 U.S.C. § 9605(b), ELR STAT. 44022. The 1986 amendments were enacted as Pub. L. No. 99-499, 100 Stat. 1613 (1986).

4. 53 Fed. Reg. 51394 (Dec. 21, 1988).

5. U.S. navigable waters were defined to include inland rivers, Great Lakes, and coastal territorial waters. It is not clear whether the contiguous zone was deemed to be within U.S. navigable waters or was covered separately. 1968 NCP at 3.

6. Annex III to the 1968 NCP summarized legal capabilities to control oil pollution, including: (1) the Oil Pollution Act of 1924, 33 U.S.C. §§ 431-437 (repealed in 1970), which prohibited the grossly negligent or willful discharge of oil into navigable waters and adjoining shorelines from vessels, and authorized DOI to issue regulations permitting the discharge of oil in certain circumstances and providing for removal of discharged oil; (2) An Act to authorize federal assistance to state and local governments in major disaster and for other purposes, 42 U.S.C. §§ 1855-1855g (repealed in 1970); (3) the Rivers and Harbors Act of 1899, 33 U.S.C. § 407; (4) the Federal Water Pollution Control Act, formerly 33 U.S.C. §§ 466-466g and now 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA 001-065; and (5) the Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331-1343.

7. The Coast Guard was to provide OSCs for coastal and contiguous zone waters, ports and harbors, Great Lakes, and major inland waterways. The Department of Interior was to furnish OSCs for other areas. Although the regional contingency plans were to be the main vehicle for response, the original NCP did not specify who was to develop such plans or what they should contain.

8. 1968 NCP at 5.

9. The Plan recognized that elements of any phase could take place concurrently with other phases; that concept continues to be emphasized in the most recent proposed NCP revisions.

10. The Plan suggested notification of the JOC for spills of 100,000 gallons or more of heavy oil in the coastal zone, of 10,000 gallons or more of heavy oil in inland waters, and of quantities of other material that substantially threaten human health or welfare.

11. 1968 NCP at 1. "Hazardous substance," in turn, was defined as "matter of any description or origin other than oil, which when discharged into any waters in substantial quantities, presents an imminent and substantial hazard to the public health or welfare, including fish, shellfish, and wildlife and shorelines and beaches." Id.

12. 1968 NCP at 10.

13. Annex I, the signature page, set forth terms for modification of the Plan. It provided that regional plans could be modified by DOI with the concurrence of affected agencies, but did not say how those plans were to be established in the first instance. Annex II addressed distribution of the Plan. Annex III summarized available legal authorities for the control of oil pollution. Annex IV established the National Interagency Committee. Annex V established the Joint Operations Center, to be located at U.S. Coast Guard Headquarters. Annex VI was to be a list of regional operations centers, to be inserted after designation in regional plans. Annex VII summarized the ship salvage authority of the U.S. Navy, as related to oil spill emergencies. Annex VIII established objectives and procedures for communications and reports. Annex IX provided for the encouragement of state and local participation in response planning and operation. Annex X set forth sources of funding for response actions. Annex XI established detailed procedures for reporting information and collecting samples in Phase IV operations. Annex XII provided for coordination of the release of public information on pollution incidents. Annex XIII referenced technical information on handling spills of oil and other hazardous substances.

14. Pub. L. No. 91-224, 84 Stat. 91 (1970).

15. Pub. L. No. 91-224, § 102 (adding § 11(c)(2) to the Federal Water Pollution Control Act). The WQIA did not require the NCP to address substances other than oil.

16. Id.

17. 35 Fed. Reg. 8508 (June 2, 1970).

18. The names of several response bodies were changed: the Joint Operations Center became the National Response Center; the Joint Operations Team became the National Response Team; the Regional Operations Centers became the Regional Response Centers; and the Regional Operations Teams became the Regional Response Teams. The 1970 revisions also re-ordered the annexes, deleted Annex I (signatories) and Annex VII (salvage), and added Annex X (dispersants) and Annex XX (regional contingency plans).

19. 36 Fed. Reg. 16215 (Aug. 20, 1971).

20. Pub. L. No. 92-500, 86 Stat. 865 (1972).

21. See S. Rep. 1236, 92d Cong., 2d Sess. 132-34 (1972) (conference report).

22. 22 FWPCA § 311(c)(2)(H), 33 U.S.C. § 1231(c)(2)(H), ELR STAT. FWPCA 040.

23. 38 Fed. Reg. 21888 (Aug. 13, 1973). The 1973 NCP was promulgated by CEQ, pursuant to § 4 of Exec. Order 11735. Minor revisions to Annex VIII of the 1970 NCP (generally documentation procedures to assist in legal proceedings) were promulgated previously at 37 Fed. Reg. 18411 (Sept. 9, 1972). In addition, § 203 and Appendix IX were revised to implement the FWPCA's provision for state removal actions and federal reimbursement. 38 Fed. Reg. at 28208 (Dec. 21, 1972). The 1973 NCP was codified at 40 C.F.R. § 1510.

24. 40 C.F.R. § 1510.53(a)(3).

25. 40 C.F.R. § 1510.21(g).

26. Annex X, § 2001.6.

27. 45 Fed. Reg. 17832 (Mar. 19, 1980). The NCP also underwent minor changes in 1975 and 1976. 40 Fed. Reg. 6282 (Feb. 10, 1975); 41 Fed. Reg. 12658 (Mar. 26, 1976). In the 1975 revisions, Annex X was revised to provide more detail on substances that could be used to remove discharges. The criteria for determining discharge size classifications were revised, and the definition of "discharge" was revised to include any spilling that poses a threat to the public health or welfare. The 1976 revisions refined the division of responsibility among response authorities, and required the OSC to comply with EPA advice on the use of chemicals.

28. Pub. L. No. 96-510, 94 Stat. 2767, 42 U.S.C. 9601-9657, ELR STAT. 44001.

29. On the 1980 enactment of CERCLA and its provisions generally, see Superfund at Square One: Promising Statutory Framework Requires Forceful EPA Implementation, 11 ELR 10101 (1981).

30. Executive Order No. 12316, § 1(c), 3 C.F.R. § 168 (1982). Executive Order 12316 has since been replaced by Exec. Order No. 12580, 3 C.F.R. § 193 (1988).

31. CERCLA § 105, 42 U.S.C. § 9605, ELR STAT. 44021.

32. It is not readily apparent why Congress modeled § 104(c), which requires that remedies be consistent with the NCP only "to the extent practicable" (a requirement continued in § 121(a) of SARA) on § 311(c)(2) of the FWPCA, after it had required in § 104(a) that response actions be consistent with the NCP (without any "to the extent practicable" modifier).

33. The language quoted is from § 104(d) as enacted in 1980. It was amended in 1986.

34. Other references to the NCP were made in § 101(31) (definition); § 111(a)(2) (claims); § 111(c)(5) (authorizing Fund payment of costs of federal response teams under the NCP); § 111(h)(1) (natural resource damage assessment); § 301(c)(1) (requiring federal officials designated by NCP to publish regulations for the assessment of natural resource damages); and § 301(f) (requiring modification of the NCP to provide for the protection of the health and safety of employees involved in response actions).

35. 47 Fed. Reg. 31180 (July 16, 1982), codified at 40 C.F.R. § 300 (1983). The revisions were preceded by a proposed rulemaking at 47 Fed. Reg. 10972 (Mar. 12, 1982).

36. PRPs are parties believed to be liable under CERCLA § 107.

37. None of these provisions was entirely new; previous editions of the NCP provided for ever-increasing state participation in the removal process.

38. 40 C.F.R. § 300.43(a)(1983).

39. 47 Fed. Reg. at 31198 (July 16, 1982).

40. 40 C.F.R. § 300.61(c)(1983).

41. Not all phases would figure in each response action.

42. 48 Fed. Reg. 40670 (Sept. 8, 1983).

43. 40 C.F.R. § 300.68(a)(1983).

44. The RI is considered to be a removal action, although it is still a preliminary step in the remedial process. 50 Fed. Reg. 47927 (Nov. 20, 1985).

45. 40 C.F.R. § 300.68(h)(1)(1983).

46. 40 C.F.R. § 300.68(j) (1983).

47. 40 C.F.R. § 300.68(k) (1983).

48. The preamble to the proposed 1982 revisions includes a lengthy discussion of Fund-balancing, and cites it as a reason for not requiring cleanup to levels that met federal and state environmental standards or water quality criteria. 49 Fed. Reg. 10977-78 (Mar. 12, 1982).

49. Environmental Defense Fund v. Environmental Protection Agency, No. 82-2234 (D.C. Cir. 1982); New Jersey v. Environmental Protection Agency, No. 82-2238 (D.C. Cir. 1982).

50. Additionally, EPA agreed to propose amendments to the NCP to (1) allow federal facilities to be included in future NPL revisions; (2) require development of community relations plans for all Fund-financed response measures; (3) require public review of feasibility studies for all Fund-financed response measures; and (4) provide comparable public participation for private-party response measures taken pursuant to enforcement actions. 50 Fed. Reg. at 5862 (Feb. 12, 1985).

51. 50 Fed. Reg. at 47912 (Nov. 20, 1985).

52. 40 C.F.R. § 300.68(i)(1).

53. EPA took the position that CERCLA response actions were not legally subject to other federal or state environmental laws, based on a theory of implied repeal and preemption. See 50 Fed. Reg. at 5861, 47917 (Feb. 12 and Nov. 20, 1885), and Memorandum from Francis S. Blake, EPA General Counsel, to J. Winston Porter, EPA Assistant Administrator for Solid Waste and Emergency Response, November 22, 1985 (attaching CERCLA Compliance with Other Laws Opinion).

54. 40 C.F.R. § 300.6. The Appendix to the preamble included a list of potential ARARs. 50 Fed. Reg. at 47948-50 (Nov. 20, 1985).

55. While EPA most often is the lead federal agency, the Plan provided that other agencies, such as the Coast Guard, would take the lead role in particular circumstances. In addition, states could act as lead agencies pursuant to cooperative agreements. For brevity, the text uses EPA and lead agency interchangeably.

56. 42 U.S.C. §§ 6901-6991i, ELR STAT. RCRA 001-046.

57. The March 12, 1985, proposed revisions to the NCP had used the phrase "applicable or relevant" standards. The final 1985 revisions inserted the word "appropriate." EPA explained, "By adding the phrase 'and appropriate,' EPA emphasizes that non-applicable requirements will be used only where they are appropriate to the CERCLA site." 50 Fed. Reg. at 47918 (Nov. 20, 1985).

58. 47 Fed. Reg. at 10978 (Mar. 12, 1982).

59. 50 Fed. Reg. at 5865 (Feb. 12, 1985).

60. A corollary of that reasoning is that if the Superfund program discovers that certain regulations do not make sense, they should be revised. A contrary argument to this approach is that the regulatory standards are developed for implementation on a nationwide basis, and it may not be necessary or appropriate to apply those standards in every particular case in a federally funded and implemented cleanup program. Also, some requirements may have been established on a preventative basis to assure protection of human health and the environment on a "macro" level, but may not be necessary in particular cases.

61. 50 Fed. Reg. at 47921 (Nov. 20, 1985).

62. 47 Fed. Reg. at 31217 (July 16, 1982).

63. 50 Fed. Reg. at 47921 (Nov. 20, 1985).

64. 40 C.F.R. § 300.68(i)(5)(ii). This waiver has been invoked only once since the promulgation of the 1985 NCP. See Iron Mountain, California, Record of Decision (October 3, 1986), ELR ADMIN. MAT. 30124.

65. 40 C.F.R. § 300.65(i)(5)(i).

66. 40 C.F.R. § 300.65(i)(5)(iii).

67. 40 C.F.R. § 300.65(i)(5)(iv).

68. 40 C.F.R. § 300.65(i)(5)(v).

69. 40 C.F.R. § 300.65(i)(5).

70. 40 C.F.R. § 300.68.

71. 50 Fed. Reg. at 47924-25 (Nov. 20, 1985).

72. Id. at 47925.

73. Under EPA's policy memorandum entitled "Procedures for Planning and Implementing Off-Site Response Actions" (May 6, 1985), ELR ADMIN. MAT. 35099, no hazardous substances could be taken to a RCRA facility with significant violations or other environmental conditions that affect its satisfactory operation unless a compliance order ensured correction of such conditions. Nor could hazardous substances be taken to a hazardous waste management unit not in compliance with RCRA regulations. The 1985 NCP did not codify the off-site policy requirements, but similar requirements were added to CERCLA § 121(d)(3) as part of the 1986 amendments.

74. 40 C.F.R. § 300.65(b). A number of criteria were included for determining whether such a threat exists, including a catch-all: "other situations or factors which may pose threats to public health or welfare or the environment."

75. Subject to an exemption for emergency action, CERCLA § 104(c)(1) originally restricted removal actions to $ 1,000,000 and to 6 months' duration. The 1986 Amendments increased the exemption to $ 2,000,000 and 12 months. The 1986 Amendments added an exemption from the cost limitations when "continued response action is otherwise appropriate and consistent with the remedial action to be taken."

76. 40 C.F.R. § 300.65(f).

77. The preamble also stated that removals were subject to the Off-Site Policy unless the exigencies of the threat precluded determining the compliance status of the off-site facilities. 50 Fed. Reg. at 47931 (Nov. 20, 1985).

78. See 50 Fed. Reg. at 5865 (Feb. 12, 1985).

79. The 1985 NCP did not make clear whether "scoping" was an initial step in the RI, whether it comprised the RI, or whether it was separate from the RI. The regulation uses the term "initial analysis," but it does not specify any RI activities that are not part of scoping. On the other hand, it states that scoping "may serve as the basis for further supporting funding requests for a remedial investigation or feasibility study." The title of § 300.68(e), "Scoping of Response Actions during the Remedial Investigations," could indicate either that scoping is the RI, or that scoping is part of the RI.

80. The term "as appropriate" was used liberally throughout the 1982 NCP to provide the flexibility necessary to make the remedial process fit the release.

81. 40 C.F.R. § 300.68(f).

82. 40 C.F.R. § 300.68(f)(2).

83. 40 C.F.R. § 300.68(g).

84. 40 C.F.R. § 300.68(g)(1).

85. 40 C.F.R. § 300.68(h)(2)(v).

86. 50 Fed. Reg. at 47937 (Nov. 20, 1985).

87. This policy apparently rests on the interpretation that remedial design and planning are actually "removal actions" as defined by § 101(23) of CERCLA, and thus not subject to the cost assurance requirements of § 104(c)(3). See 50 Fed. Reg. at 47927 (Nov. 20, 1985).

88. The 1985 preamble maintained EPA's position that each state was entitled to designate only one "highest priority release" site, period.

89. 50 Fed. Reg. at 37624 (Sept. 16, 1985); 40 C.F.R. § 300.66(b)(4).

90. CERCLA § 111(e)(3), 42 U.S.C. § 9611(e)(3), ELR STAT. CERCLA 44036.

91. See 50 Fed. Reg. at 47931 (Nov. 20, 1985).

92. 40 C.F.R. § 300.66(c)(7).

93. 40 C.F.R. § 300.66(c)(8).

94. See 40 C.F.R. §§ 300.65(h) and 300.68(l).

95. Artesian Water Co. v. Government of New Castle County, 605 F. Supp. 1348, 15 ELR 20577 (D. Del. 1985); Bulk Distribution Centers, Inc. v. Monsanto Co., 589 F. Supp. 1437, 15 ELR 20151 (S.D. Fla. 1984); Wickland Oil Terminals v. ASARCO, Inc., 590 F. Supp. 72, 14 ELR 20494 (N.D. Cal. 1984); Cadillac Fairview/California, Inc. v. Dow Chemical Co., 14 ELR 20376, 20716 (C.D. Cal. 1984).

96. New York v. Shore Realty Corp., 648 F. Supp. 255, 17 ELR 20588 (E.D.N.Y. 1986); City of New York v. Exxon Corp., 633 F. Supp. 609, 16 ELR 20850 (S.D.N.Y. 1986); Fishel v. Westinghouse Electric Corp., 617 F. Supp. 1531, 16 ELR 20001 (M.D. Pa. 1985); Pinole Point Properties, Inc. v. Bethlehem Steel Corp., 596 F. Supp. 283, 15 ELR 20173 (N.D. Cal. 1984); Homart Development Co. v. Bethlehem Steel Co., 14 ELR 20718 (N.D. Cal. 1984).

97. 40 C.F.R. § 300.71(a).

98. Id.

99. 40 C.F.R. § 300.25(d).

100. 40 C.F.R. § 300.71(c).

101. The 1988 proposed NCP revisions would delete the certification provision. See 53 Fed. Reg. at 51462 (Dec. 21, 1988).

102. No such requirement was established for oil removals under FWPCA § 311.

103. 28 C.F.R. § 50.7.

104. ELR PEND. LIT. 65976.

105. Ohio v. U.S. Environmental Protection Agency, 838 F.2d 1325, 18 ELR 20479 (D.C. Dir. 1988). The court rejected EPA's argument that the preauthorization requirement was insulated from judicial review under § 113(a), the preclusive review provision. This, despite the fact that the preauthorization requirement was substantially unchanged from the 1982 NCP and despite the statement in the 1985 preamble that although the entire NCP was being reprinted for readers' convenience, comment was only requested on new or changed parts. 50 Fed. Reg. at 5862 (Feb. 12, 1985).

106. Pub. L. No. 99-499, 100 Stat. 1613 (1986). On the 1986 amendments generally, see Atkeson et al., An Annotated Legislative History of the Superfund Amendments and Reauthorization Act of 1986 (SARA), 16 ELR 10360 (1986).

107. SARA amended CERCLA § 105 to impose additional requirements on the establishment of remedial priorities (§ 105(a)(8)(A)) and requiring EPA to revise the Hazard Ranking System (§ 105(c)). Revisions to the Hazard Ranking System are included in a separate proposal at 53 Fed. Reg. 51962 (Dec. 23, 1988).

108. 42 U.S.C. § 9621, ELR STAT. 44054.

109. No reference to "public welfare" is included in the § 121 cleanup standards, although the requirement to protect public health and welfare was not deleted from § 104 and elsewhere in the statute.

110. CERCLA § 121(a), 42 U.S.C. § 9621(a), ELR STAT. 44054.

111. CERCLA § 121(b), 42 U.S.C. § 9621(b), ELR STAT. 44054.

112. Although CERCLA and the proposed NCP now specify that only those state standards that are more stringent than federal requirements may be applicable or relevant and appropriate, this limitation appears to lack practical significance; if the state standard is less stringent than the federal standard, compliance with the latter would presumably ensure compliance with the former. The waivers from ARARs provided under SARA differ in several respects from those earlier provided in the 1985 NCP. See CERCLA § 121(d)(4), 42 U.S.C. § 9621(d)(4).

113. 53 Fed. Reg. at 51394 (Dec. 21, 1988).

114. Section 103(a) of CERCLA requires reporting of releases of hazardous substances in amounts greater than "reportable quantities" established by EPA. See 40 C.F.R. § 302. Section 103(c) requires owners and operators to notify EPA of facilities where hazardous waste has been stored, treated, or disposed.

115. Removal actions are generally taken on the basis of an Action Memorandum signed by an EPA Regional Administrator or his or her delegate. The preamble classifies removal actions into three categories: Emergency removals address releases or threat of releases requiring cleanup activities within hours; Time-critical removals are those where less than six months are available before cleanup activities must begin; Non-time-critical removals are those where a planning period of more than six months is available before on-site activities must begin.

116. Actual construction may not occur until the site is listed on the NPL.

117. No significant changes are proposed to the procedures for discovery and notification of releases. Proposed § 300.405 makes few changes to the current 40 C.F.R. § 300.63.

118. CERCLIS, the CERCLA Information System, is EPA's inventory of a "comprehensive data base and management system that inventories and tracks releases addressed or needing to be addressed by the Superfund program." Proposed § 300.100. CERCLIS originally included only sites at which remedial action was necessary (or had taken place). However, CERCLIS was recently expanded to include actual and potential sites for removal, remedial, or enforcement action under CERCLA. CERCLIS contains both activesites and sites that have already been addressed.

119. Proposed § 300.420(b)(5).

120. The latter purpose is newly proposed in § 300.420(b)(iv). The proposal would also require the lead agency to prepare a remedial PA report, including a recommendation on what additional action, if any, is warranted.

121. The proposed revisions would also require that the lead agency complete an SI report describing (1) the history or nature of waste handling at the site; (2) known contaminants; (3) pathways of migration of contaminants; (4) human and environmental receptors; and (5) a recommendation as to whether further action is warranted. Proposed § 300.420(c)(5).

122. 47 Fed. Reg. at 31216 (July 16, 1982); 40 C.F.R. § 300.68(a)(1983). The 1982 NCP was not crystal clear; § 300.68(a) merely stated that "remedial actions taken pursuant to this section (other than responses at Federal facilities) are those responses to releases on the National Priorities List." However, no other section of the NCP provided for remedial action, and the preamble explained the NPL's purpose as "merely the first step in considering a release for Fund-financed remedial response." 47 Fed. Reg. at 31187 (July 16, 1982). The Agency has never undertaken remedial action at non-NPL sites, and in 1985 clarified the NCP to make the prohibition clear. 40 C.F.R. § 300.68(a)(1) (1986).

123. EPA has proposed separate revisions to the HRS in accordance with § 105(c) of CERCLA. 53 Fed. Reg. at 51962 (Dec. 23, 1988).

124. Proposed § 300.425(b). The 1985 NCP, § 300.66(c)(2), states that "[t]he NPL serves as a basis to guide the allocation of Fund resources among releases." The new preamble explains that the revision would emphasize that factors other than NPL ranking may determine when a remedial action takes place. For example, private party response (voluntary or otherwise), state assurance of costs, and statutory requirements for federal facilities may all affect when remedies are selected and implemented.

125. CERCLA § 120(e), 42 U.S.C. § 9620(e), ELR STAT. 44052.

126. Sites are ranked on the NPL according to their Hazard Ranking System scores.

127. The proposal would also delete the requirement to submit recommended NPL listings to the NRT.

128. CERCLA § 121(f) requires state concurrence on NPL deletions.

129. EPA's previous Federal Register pronouncement on deletion did not mention recategorization. 51 Fed. Reg. 21054, 21066-67 (June 10, 1986).

130. Sites would be classified as "awaiting deletion" on the basis of a Close Out Report, documenting that the remedy has been completed and has met the level of protectiveness set forth in the Record of Decision. Presumably, the formal deletion process (requiring state concurrence and public comment) would confirm that conclusion.

131. EPA policy is to list RCRA Subtitle C facilities on the NPL only if the owner and operator are unable or unwilling to carry out necessary corrective actions (51 Fed. Reg. at 21054 (June 10, 1986)), or if the facility falls within a limited number of specified categories (53 Fed. Reg. at 23978 (June 24, 1988)). The Agency's most recent pronouncements on ability and willingness to pay may be found at 53 Fed. Reg. 30002, 30005 (Aug. 9, 1988). The policy not to list sites licensed by the Nuclear Regulatory Commission is stated at 51 Fed. Reg. 21063 (June 10, 1986), and earlier notices referenced therein. This policy is limited to facilities licensed by the NRC itself, and does not extend to facilities licensed by NRC "Agreement States."

132. 52 Fed. Reg. 17991 (May 13, 1987).

133. RCRA §§ 4001-4010, 42 U.S.C. §§ 6941-6949a, ELR STAT. 026-030.

134. RCRA §§ 9001-9010, 42 U.S.C. §§ 6991-6991i, ELR STAT. 041-046.

135. 53 Fed. Reg. at 37082 (Sept. 23, 1988).

136. 30 U.S.C. §§ 1201-1328, ELR STAT. SMCRA 001-066.

137. 7 U.S.C. §§ 136-136y, ELR STAT. FIFRA 001-029.

138. For example, the House rejected a comprehensive amendment proffered by Rep. Stockman, to establish a grant program for states to clean up hazardous waste sites. 126 CONG. REC. H9437 (amendment introduced), H9449 (amendment defeated) (daily ed., Sep. 23, 1980).

139. 53 Fed. Reg. at 51423 (Dec. 21, 1988).

140. The preamble recognizes that removal authority may be used during the remedial process to quickly abate a threat, either through: "(1) a traditional removal action conducted by the removal program using its own resources, or (2) an expedited response action (ERA) conducted by the remedial program using its own resources." While an ERA may be conducted by personnel from EPA's "remedial program," it is still a removal action within the meaning of CERCLA. According to the preamble, ERAs may be undertaken when the response can safely be delayed for at least six months.

141. 53 Fed. Reg. at 51423 (Dec. 21, 1988).

142. While "scoping" is accorded a separate subsection in the proposed regulation (§ 300.430(b)), the preamble describes "project scoping" as part of the RI/FS process. The categorization is unimportant; as the preamble notes, the various steps in the remedial process (other than final selection of remedy) are iterative and not fixed in sequence.

143. A support agency may be EPA or the state, depending on who has the "lead" under a cooperative agreement. See proposed § 300.5 (definition of "support agency").

144. 40 C.F.R. § 300.68(e)(2).

145. Proposed § 300.430(d)(4).

146. The Agency assumes that carcinogens are "non-threshold" chemicals for which no level of exposure is without adverse effect. Noncarcinogens are threshold chemicals, for which a certain exposure level is believed to present no appreciable risk of adverse effect. The risk levels for carcinogens, known as risk-specific doses and the threshold levels for noncarcinogens, known as reference doses, are compiled by the Agency in a computerized data base called "IRIS," which is available to the public.

147. Examples of remedial actions to be considered are listed in Appendix D to the proposed revisions.

148. As noted, EPA assumes that there is no "threshold" dose or "no effect" level for carcinogens. Hence, unless the cleanup level is to be zero, an "acceptable" risk range must be established. A risk of 10<-4> means a probability of one increased lifetime case of cancer per 10,000 individuals. A risk of 10<-7> means one per 10,000,000 people.

149. Health-based levels are those that pose an "acceptable" risk: i.e., no significant adverse non-carcinogenic effects, and an incremental lifetime cancer risk of less than 10<-4>, using standard assumptions on exposure. Health-based levels do not take into account any restrictions or limitations on exposure from hazardous substances at a particular site. Thus the health-based level for arsenic would be the same regardless of whether the site is in a residential area or buried under the soil in a remote desert location.

150. Proposed § 300.430(e)(2)(i)(A).

151. 53 Fed. Reg. at 51426 (Dec. 21, 1988). The regulation also includes a footnote referencing the preamble's solicitation of comment on alternative risk ranges. 53 Fed. Reg. at 51505 n.1 (Dec. 21, 1988).

152. 53 Fed. Reg. at 51426 (Dec. 21, 1988).

153. This approach departs from the 1985 NCP, which requires EPA to develop alternatives that meet ARARs, that do not meet ARARs, that involve off-site disposal, and no-action. The new preamble recognizes that ARARs do not always indicate what is necessary to protect human health and the environment. Moreover, ARARs may not exist for the hazardous substances at issue, and multiple contaminants or pathways of exposure may require attaining levels more stringent than those set by particular ARARs.

154. Proposed § 300.430(e)(3)(i).

155. The preamble suggests that cost and implementability considerations may render comprehensive treatment remedies impracticable in some cases. 53 Fed. Reg. at 51426 (Dec. 21, 1988).

156. 53 Fed. Reg. at 51427-28 (Dec. 21, 1988).

157. Proposed § 300.430(e)(4). Similarly, a separate section in the preamble is devoted to groundwater cleanup. 53 Fed. Reg. at 51433 (Dec. 21, 1988).

158. 53 Fed. Reg. at 51433 (Dec. 21, 1988).

159. Id.

160. 53 Fed. Reg. at 51434 (Dec. 21, 1988).

161. Id. The preamble goes on to discuss a number of situations where active restoration of groundwater may not be possible:

(1) Widespread plumes resulting from non-point sources (e.g., contamination from mining, pesticide application, or general industrial use);

(2) Hydrogeological constraints (e.g., aquifers with very low transmissivity, or aquifers in fractured bedrock or Karst formations);

(3) Containment constraints (e.g., the presence of dense, non-aqueous phase liquids which collect in "puddles" at the base of an aquifer) and

(4) Physicochemical limitations (e.g., interactions between contaminants and the aquifer material which limit the rate at which they can be removed).

These cases may allow only for natural attenuation with reliance on institutional controls, well-head treatment, or use of alternative water supplies.

162. Such groundwater is classified as Class III under EPA's Groundwater Protection Strategy.

163. 53 Fed. Reg. at 51435 (Dec. 21, 1988). Presumably, such widespread contamination would only be addressed under Superfund if the response action, by itself or in combination with other efforts, would result in a significant reduction of risk to human health and the environment.

164. Proposed § 300.430(e)(9).

165. Proposed 40 C.F.R. § 300(e)(9)(iii)(A).

166. 53 Fed. Reg. at 51428 (Dec. 21, 1988).

167. 53 Fed. Reg. at 51428, 51429 (Dec. 21, 1988).

168. 53 Fed. Reg. at 51423 (Dec. 21, 1988).

169. The preamble does acknowledge that "the highest degrees of permanence are clearly afforded by remedies that pose little or no residual risk because contaminants are at or close to health-based levels, and are not heavily reliant on long-term operation and maintenance following the completion of an implemented action." 53 Fed. Reg. at 51422 (Dec. 21, 1988).

170. 53 Fed. Reg. at 51428 (Dec. 21, 1988).

171. Id.

172. 53 Fed. Reg. at 51429 (Dec. 21, 1988).

173. 53 Fed. Reg. at 51429 (Dec. 21, 1988).

174. There is support for this in the legislative history. See remarks of Sen. Bentsen, 132 CONG. REC. S14910 (daily ed., Oct. 3, 1986); Rep. Lent, 132 CONG. REC. H9567 (daily ed., Oct. 8, 1986); and Rep. Snyder, 132 CONG. REC. H9574 (daily ed., Oct. 8, 1986). Others have objected, however, that undue consideration of community acceptance would yield to the "Not in My Backyard" syndrome.

175. Proposed § 300.430(f)(3).

176. 53 Fed. Reg. at 51429 (Dec. 21, 1988).

177. 53 Fed. Reg. at 51430 (Dec. 21, 1988) (paraphrase from preamble).

178. 53 Fed. Reg. at 51431 (Dec. 21, 1988).

179. Id.

180. Id. This approach is based on a proposal from the Hazardous Waste Treatment Council.

181. 53 Fed. Reg. at 51432 (Dec. 21, 1988).

182. Id. (emphasis added).

183. This approach is consistent with the remarks of Sen. Bentsen in the final debates on SARA. 132 CONG. REC. S14910 (daily ed., Oct. 3, 1986).

184. The preamble does, however, solicit comment on the advisability of using "analytical tools and techniques," such as pairwise comparison or ranking of alternatives, scoring alternatives according to a scale, and assigning a numerical weight to alternatives. 53 Fed. Reg. at 51432 (1988).

185. The conference report is ambiguous on this point. See H. Rep. 962, 99th Cong., 2d Sess. 245 (1986). Individual legislators expressed both views in their debates. See, e.g., remarks of Rep. Lent and Rep. Snyder, 132 CONG. REC. H9567, H9574 (daily ed., Oct. 8, 1986) (cost to be balanced against other criteria); and remarks of Sen. Mitchell and Sen. Chafee, 132 CONG. REC. S14913, S1495 (daily ed., Oct. 8, 1986) (cost a factor only among equally effective remedies).

186. CERCLA § 121(a), 42 U.S.C. § 9621(a), ELR STAT. 44054.

187. CERCLA § 101(24), 42 U.S.C.§ 9601(24), ELR STAT. 44007.

188. CERCLA § 126(b), 42 U.S.C. § 9626(b), ELR STAT. 44064.

189. This provision was not codified in CERCLA. It was enacted as SARA § 118(h), and is reprinted at ELR STAT. 44047.

190. The preamble to the proposed rule, however, declares that "EPA's policy is to attain or exceed such ARARs during the implementation of the remedial action (where pertinent to the action itself) as well as at the completion of the action, unless a waiver is justified." 53 Fed. Reg. at 51440 (Dec. 21, 1988).

191. Strictly speaking, the requirement applies only to state laws that are more stringent than the federal law. Of course, if the state requirement is equivalent to or less stringent than the federal law, compliance with the federal law ensures compliance with the state law.

192. CERCLA § 121(d)(2)(C), 42 U.S.C. § 9621(d)(2)(C), ELR STAT. 44055.

193. CERCLA § 121(d)(2), 42 U.S.C. § 9621(d)(2), ELR STAT. 44055.

194. This provision is retained in the proposed revisions. Proposed 40 C.F.R. § 300.415(i).

195. The proposed regulation defines "applicable requirements" as:

those cleanup standards, standards of control, and other substantive environmental protection requirements, criteria, or limitations promulgated under Federal or state law that specifically address a hazardous substance, pollutant, contaminant, remedial action, location, or other circumstance at a CERCLA site.

Proposed § 300.5. The rule would require the lead and support agencies to "identify applicable requirements based upon an objective determination of whether the requirement specifically addresses a hazardous substance, pollutant, contaminant, remedial action, location, or other circumstance at a CERCLA site." Proposed § 300.400(g)(1).

196. The proposed regulation defines "relevant and appropriate requirements" as:

those cleanup standards, standards of control, and other substantive environmental protection requirements, criteria, or limitations promulgated under Federal or state law that, while not "applicable" to a hazardous substance, pollutant, contaminant, remedial action, location, or other circumstance at a CERCLA site, address problems or situations sufficiently similar to those encountered at the CERCLA site that their use is well suited to the particular site.

Proposed § 300.5.

197. See Stoll, EPA Offers Little Guidance on Cleanup Standards, Legal Times, Mar. 11, 1985.

198. CERCLA § 121(d)(2), 42 U.S.C. § 9621(d)(2), ELR STAT. 44055 (emphasis added).

199. Proposed § 300.400(g)(2).

200. Proposed § 300.400(g)(4).

201. The preamble cites reference doses for carcinogens as one type of such information. 53 Fed. Reg. at 51436 (Dec. 21, 1988).

202. The off-site transfer requirements apply both to removal and remedial actions. The proposed revisions do not address off-site transfer; the Agency has published a separate proposal on that subject. 53 Fed. Reg. 48218 (Nov. 29, 1988).

203. 53 Fed. Reg. at 51406 (Dec. 21, 1988).

204. Id.

205. Id.

206. Of course, this argument may prove too much; proximity to the site would not appear to be relevant to the degree of safeguards involved.

207. 53 Fed. Reg. at 51407 (Dec. 21, 1988).

208. Of course, under any approach, off-site transfers would need to go to permitted facilities. In most cases, however, such transfers go to existing permitted facilities; in very few cases are new off-site facilities constructed to handle waste from a Superfund site.

209. 53 Fed. Reg. at 51443 (Dec. 21, 1988).

210. CERCLA § 121(d)(2), 42 U.S.C. § 9621(d)(2), ELR STAT. 44055.

211. 53 Fed. Reg. at 51443 (Dec. 21, 1988).

212. Id.

213. SDWA § 1401(3), 42 U.S.C. § 300f(3), ELR STAT. SDWA 41102. On the SDWA generally see Gray, The Safe Drinking Water Act Amendments of 1986: Now a Tougher Act to Follow, 16 ELR 10338(1986).

214. Before the 1986 amendments, MCLGs were known as "recommended maximum contaminant levels," or RMCLs.

215. SDWA § 1412(b)(4), 42 U.S.C. § 300g-1(b)(4), ELR STAT. SDWA 41102.

216. This is true of Class A carcinogens and Class B (probable) carcinogens. See EPA Risk Assessment Guidelines, 51 Fed. Reg. 33992 (Sept. 24, 1986).

217. SDWA § 1412(b)(4) and (5), 42 U.S.C. § 300g-1(b)(4) and (5), ELR STAT. SDWA 41102-03.

218. 53 Fed. Reg. at 51441 (Dec. 21, 1988). It may be noted that some of the MCLs are at levels approaching 3x10<-4>, but those are apparently deemed to be within the prescribed risk range, at least if one rounds off to the nearest order of magnitude.

219. Id.

220. "Superfund Program: Interim Guidance on Compliance with Applicable or Relevant and Appropriate Requirements," 52 Fed. Reg. 32496 (Aug. 27, 1987), ELR ADMIN. MAT. 35113.

221. MCLs would be used only for actual or potential sources of drinking water. In assessing the potential use of drinking water, the Agency will look to its Ground Water Protection Strategy. See "EPA Guidelines for Ground-Water Classification" (Draft, December 1986).

222. The preamble states that in the absence of MCLs or state standards, other ARARs, standards, criteria, or advisories may be used including proposed MCLs, health advisories, drinking water equivalent levels, risk specific doses, water quality criteria, MCLGs, proposed MCLGs, or state health advisories. 53 Fed. Reg. at 51433 (Dec. 21, 1988).

223. CERCLA § 121(d)(2)(B)(i), 42 U.S.C. § 9621(d)(2)(B)(i), ELR STAT. 44055.

224. 53 Fed. Reg. at 51442 (Dec. 21, 1988).

225. Presumably, the "otherwise applicable" concentration limits are those established under the RCRA regulations at 40 C.F.R. § 264.94 (1988). However, those limits apply only to groundwater beneath a hazardous waste facility permitted under RCRA, rarely the situation at a CERCLA site. Moreover, the specified concentration limits in that section are "background" levels, MCLs for 14 chemicals, or alternate concentration limits established by the Regional Administrator. Thus, strictly speaking, it could be extremely rare that MCLs or background are "applicable" to contaminated groundwater at a Superfund site. However, it appears that in enacting § 121(d)(2)(B)(ii), Congress intended to preclude the use of ACLs where there would be a statistically significant increase in the constituent in a surface water body. See H. REP. 962, 99th Cong., 2d Sess. 247 (Conference Report).

226. Class I groundwater includes groundwater that is irreplaceable because no reasonable alternative source exists, and groundwater providing the base flow for a particularly sensitive ecological system that supports a unique habitat. 53 Fed. Reg. at 51433 (Dec. 21, 1988).

227. 53 Fed. Reg. at 51434 (Dec. 21, 1988).

228. Of course, it is hardly that simple. RCRA by its terms applies to the disposal of hazardous waste after November 1980, and its corrective action requirements are specifically designed to address releases of hazardous constituents from previously disposed solid waste.

229. 40 C.F.R. § 261. Some RCRA requirements, such as the corrective action requirements in § 3004(u), apply to a broader category of "hazardous waste" as defined in § 1004(5) of RCRA.

230. 53 Fed. Reg. at 51444 (Dec. 21, 1988).

231. 40 C.F.R. § 262.11(c)(2).

232. 40 C.F.R. § 260.10.

233. 53 Fed. Reg. at 51444 (Dec. 21, 1988).

234. RCRA § 3004(d)-(m), 42 U.S.C. § 6924(d)-(m), ELR STAT. RCRA 012-014.

235. 51 Fed. Reg. at 40578 (Nov. 7, 1986).

236. 53 Fed. Reg. at 51437 (Dec. 21, 1988).

237. 53 Fed. Reg. at 51445-46 (Dec. 21, 1988).

238. 52 Fed. Reg. 8706 (Mar. 19, 1987).

239. 52 Fed. Reg. at 8712 (Mar. 19, 1987).

240. A difficulty with this approach, is that, at least theoretically, RCRA requirements would be applicable to hazardous wastes that are dispersed over large areas. However, the typical RCRA regulated unit does not meet that description, and it is arguable that the landfill closure requirements were not designed to apply to it.

241. 53 Fed. Reg. at 51446 (Dec. 21, 1988).

242. The statute requires that EPA establish corrective action regulations, and that all RCRA permits contain corrective action provisions. It should be noted that the term "hazardous waste management facility" is defined in EPA's regulations (it is not defined in the statute) as

a contiguous area of land on or in which hazardous waste is placed, or the largest area in which there is significant likelihood of mixing hazardous waste constituents in the same area.

40 C.F.R. § 260.10. In addition, the term "hazardous constituents" goes far beyond the universe of listed hazardous wastes, and approximates the universe of hazardous substances under CERCLA.

243. 40 C.F.R. § 264.94.

244. While the November 20, 1985, NCP did not specifically address the issue, the rule and the preamble made no distinction between meeting ARARs during and after the remedial action.

245. Proposed § 300.435(b)(2). The preamble also would apply the ARAR requirement not only to the remedial action itself, but also to the handling, treatment, or disposal of investigation-derived wastes. However, the Agency makes it clear that while waste with high concentrations of known hazardous substances must be managed in accordance with ARARs, "the routine containerization and testing of large volumes of materials such as drilling muds and purge waters which are not suspected to contain hazardous substances may be unnecessary because they result only in delays to the investigation with no attendant public health or environmental benefit." 53 Fed. Reg. at 51443 (Dec. 21, 1988).

246. The statutory limitation of the ARARs requirement to "hazardous substances that will remain onsite" (§ 121(d)(2)(A)) is puzzling. Discharges to the air and water (and even to the ground) will generally not remain on site for long, yet Congress specifically included the Clean Air Act and the FWPCA among the ARARs to be met. One might attempt to rationalize the statutory provision by arguing that Congress did not intend that the interim management of hazardous substances necessarily had to comply with ARARs, as long as their final disposition did so. Under that theory, temporary storage would not have to comply with RCRA storage requirements, but discharge of pollutants into a river would have to comply with the FWPCA.

247. 53 Fed. Reg. at 51440 (Dec. 21, 1988).

248. The term "health-based levels" describes contaminant levels that do not pose an unacceptable risk to human health and the environment, under standard exposure assumptions, without regard to any institutional or other limitations on exposure.

249. 53 Fed. Reg. at 51441 (Dec. 21, 1988). The preamble does not address the situation where ARARs are revised or promulgated after selection of remedy, but before commencement of remedial construction.

250. Note also that SARA § 121(b) provides that RODs signed before its effective date do not have to comply with the § 121 cleanup standards (including ARARs). However, the 1985 NCP's ARAR requirement became effective on February 18, 1986. Therefore, RODs signed after that date were required to meet with ARARs, as set forth in the 1985 NCP.

251. 53 Fed. Reg. at 51439 (Dec. 21, 1988).

252. It is not clear that any applicable statute would ever present the risks contemplated by the waiver. For example, it does not appear that any statute or regulation would require dredging of PCB-laden river bottoms. As for requirements that are not applicable, if their attainment would increase environmental risk, one could simply conclude that they are not appropriate.

253. There is no suggestion that SARA's use of "technical impracticability" has a different meaning than "technical impracticality" in the 1985 NCP.

254. CERCLA § 121(d)(4)(D) provides:

[T]he remedial action selected will attain a standard of performance that is equivalent to that required under the otherwise applicable standard, requirement, criteria, or limitation, through use of another method or approach.

255. H. REP. No. 962, 99th Cong., 2d Sess. 249 (1986) (emphasis added).

256. CERCLA § 121(d)(2)(E) provides:

[W]ith respect to a state standard, requirement, criteria, or limitation, the state has not consistently applied (or demonstrated the intention to consistently applied) the standard requirement, criteria, or limitation in similar circumstances at other remedial actions.

257. 53 Fed. Reg. at 51440 (Dec. 21, 1988).

258. See, e.g., L. Stewart, California Hazardous Waste Enforcement: A Practical Guide 13 (1988).

259. See, e.g., N.Y. Comp. Codes R. & Regs. § 361.4(f)(2) (1985).

260. CERCLA § 121(d)(2)(F) provides:

[I]n the case of a remedial action to be undertaken solely under Section 104 using the Fund, selection of a remedial action that attains such level or standard of control will not provide a balance between the need for protection of public health and welfare and the environment at the facility under consideration, and the availability of amounts from the Fund to respond to other sites which present or may present a threat to public health or welfare or the environment, taking into consideration the relative immediacy of such threats.

261. Iron Mountain, California, Record of Decision, ELR ADMIN. MAT. 30124. Fund balancing concerns were also cited in the ROD for the Waukegan Harbor site, but that was before the promulgation of the 1985 NCP's ARAR requirement. Outboard Marine Corp. Record of Decision, Waukegan, Illinois, Record of Decision, ELR ADMIN. MAT. 30011.

262. 53 Fed. Reg. at 51440 (Dec. 21, 1988).

263. RCRA § 1002(b)(7), 42 U.S.C. § 6902(b)(7), ELR STAT. RCRA 003.

264. See, e.g., H. Rep. 198, 98th Cong., 1st Sess. 33.

265. Proposed 40 C.F.R. § 300.435(b)(2).

266. Proposed 40 C.F.R. § 300.435(e). See CERCLA § 104(c)(8), 42 U.S.C. § 9604(c)(8), ELR STAT. 44013.

267. 53 Fed. Reg. at 51414 (Dec. 21, 1988).

268. CERCLA § 104(c)(3), 42 U.S.C. § 9604(c)(3), ELR STAT. 44013. Where the state or a political subdivision operated the site, the state must pay at least 50 percent.

269. CERCLA § 104(c)(9), 42 U.S.C. § 9604(c)(9), ELR STAT. 44013.

270. CERCLA § 111(e)(3), 42 U.S.C. § 9611(e)(3), ELR STAT. 44036. In limited circumstances the Fund can be used to provide alternate drinking water supplies.

271. "Removal actions" also include the various studies and designs that take place before a remedial action is actually begun. Only actual construction is considered by the Agency to constitute remedial action.

272. 53 Fed. Reg. at 51405 (Dec. 21, 1988).

273. 53 Fed. Reg. at 51409 (Dec. 21, 1988).

274. See 126 CONG. REC. H9437-H9449 (daily ed. Sept. 23, 1980).

275. CERCLA § 121(f), 42 U.S.C. § 9621(d) and (f), ELR STAT 44055-56.

276. 53 Fed. Reg. at 51405 (Dec. 21, 1988).

277. EPA may also enter into cooperative agreements with a state's political subdivision if the state agrees to provide the necessary assurances under § 104(c).

278. Proposed § 300.515(h) includes requirements that must be met in the absence of a SMOA: annual consultations; identification of ARARs and TBCs; and state review and comment on EPA-lead RI/FS, proposed plan, ROD, ARAR/TBC determinations, and remedial design. These requirements also would apply where a SMOA is negotiated but does not address a specific category.

279. Remedial actions on Indian lands are exempt from the cost-share requirements in § 104(c)(3). The proposed rule and preamble do not address whether the assurance required by § 104(c)(9) applies, and if so, whether the state or the Indian tribe must provide it.

280. 53 Fed. Reg. at 51456 (Dec. 21, 1988).

281. Proposed § 300.515(h)(2).

282. Proposed § 300.515(d)(1).

283. Proposed § 300.515(h)(2).

284. 53 Fed. Reg. at 51438 (Dec. 21, 1988).

285. Proposed § 300.515(d)(3) and (4).

286. Of course, states may refuse to provide the necessary cost-share, or may challenge waivers under § 121(f) of CERCLA. States may also sue to enforce compliance with ARARs under § 121(e)(2). If states do not prevail in their attempt to force compliance with particular ARARs, they may nonetheless choose to add the extra requirement at the states' own expense. Proposed § 300.515(f) provides that a state may also be required to assume the lead for such extra activities.

287. This new approach for state-lead Fund-financed sites will only be offered when a SMOA is established.

288. CERCLA § 122(e)(6) does require EPA's approval before PRPs can initiate remedial actions at sites where a federally authorized RI/FS has begun (which may occur regardless of whether the site is listed on the NPL). On its face, that provision does not exclude remedial actions taken pursuant to state orders.

289. EPA's concurrence in a state selected remedy may give rise to subsequent collateral estoppel arguments. See United States v. ITT Rayonnier Inc., 627 F.2d 996, 10 ELR 20945 (9th Cir. 1980) (EPA collaterally estopped from relitigating issue that had been previously decided in state enforcement action, on grounds of privity between state and EPA).

290. 53 Fed. Reg. at 51458 (Dec. 21, 1988).

291. Proposed § 300.515(g). No specific provisions are included for state participation in the remedial design, except for the responsibility to identify ARARs. Of course, states may undertake the remedial design pursuant to a cooperative agreement.

292. 53 Fed. Reg. at 51458 (Dec. 21, 1988).

293. Proposed § 300.525. The Coast Guard has charge of most removal actions for most releases of oil and hazardous substances into or threatening the coastal zone. See proposed § 300.120(a)(1) and (b).

294. Proposed § 300.525(e).

295. Proposed § 300.415(l).

296. 53 Fed. Reg. at 51459 (Dec. 21, 1988).

297. Id.

298. CERCLA § 121(c), 42 U.S.C. § 9621(c), ELR STAT. 44055.

299. Proposed 40 C.F.R. § 300.430(f)(3). While this approach appears to depart from a literal interpretation of the statutory requirement ("… any hazardous substance …") a literal interpretation would require perpetual periodic review at most sites, as it is usually not possible to remove every molecule of hazardous substances.

300. 53 Fed. Reg. at 51441 (Dec. 21, 1988).

301. Section 113(k)(1), 42 U.S.C. § 9613(k)(1), ELR STAT. 44043.

302. CERCLA § 113(j), 42 U.S.C. § 9613(j), ELR STAT. 44042. There may be some lingering controversy over whether record review applies to injunctive actions filed under § 106 of CERCLA, since § 113(j)(1) speaks of actions "taken or ordered by the President," which arguably does not include judicial orders. EPA's view, articulated in proposed § 300.800(d), is that record review does extend to judicial actions under CERCLA § 106.

303. CERCLA § 113(k)(2), 42 U.S.C. § 9613(k)(2), ELR STAT. 44043.

304. CERCLA §§ 113(k)(2)(B) and 117, 42 U.S.C. §§ 9613(k)(2)(b) and 9617, ELR STAT. 44043 and 44045.

305. See 40 C.F.R. §§ 124 (FWPCA) and 270 (RCRA).

306. 5 U.S.C. §§ 500-559, ELR STAT. ADMIN. PROC. 003-006. Unlike APA rulemakings, notice would be published in local newspapers in the area of the site, not the Federal Register.

307. The 1985 NCP allows for a minimum public comment period of 21 days on the RI/FS report.

308. The term "final" is used to distinguish the selected remedy from that proffered in the proposed plan; however, the "final" remedy will not always be the one ultimately implemented.

309. Although a state as lead agency may take all steps up to signing the ROD, the proposed rule would still require that EPA concur in and adopt the remedy.

310. CERCLA § 117(c) and (d), 42 U.S.C. § 9617(c) and (d), ELR STAT. 44043.

311. Proposed § 300.430(f)(2)(ii). Neither the proposed rule nor the preamble addresses whether due process may require according PRPs (or others having a property interest affected by the response action) additional rights, beyond those accorded to the public in general.

312. Existing EPA policy has been to conduct such interviews, although the 1985 NCP does not require it.

313. Proposed § 300.430(c).

314. Press releases may be included in the record, however, as evidence of required public notices.

315. The proposed rule actually requires establishment of the record "at the commencement of the remedial investigation phase." Proposed § 300.815(a). That generally would coincide with the finalization of the RI/FS plan, but the rule does not specify when it would occur. The preamble solicits comment on the issue of when the administrative record file should be available for public inspection. 53 Fed. Reg. at 51468 (Dec. 21, 1988).

316. The administrative record "file" would include all documents that may be relevant to the selection of remedy. The actual extent of the administrative record would not be determined until it is required to be filed in a judicial action.

317. 53 Fed. Reg. at 51468 (Dec. 21, 1988).

318. Proposed § 300.810(a).

319. Proposed § 300.810(b).

320. 53 Fed. Reg. at 51467 (Dec. 21, 1988).

321. It seems unlikely that any documents would need to be assigned to the confidential record file on the ground of deliberative process. By definition, deliberative process documents are those that represent preliminary or intermediate steps of the Agency's decisionmaking. To the extent documents containfactual information on which the remedy selection is based, they are not deliberative.

322. Documents generated or received after the decision ROD is signed generally would be kept in a separate file until a determination is made that the documents should be placed in the administrative record file. See proposed § 300.825.

323. Proposed § 300.805.

324. However, EPA proposes at § 300.700(c)(3)(ii) that private parties undertaking response actions, in order to be consistent with the NCP, comply with either the NCP's requirements for public notice and comment, including preparation of a proposed plan, or with any substantially equivalent state and local requirements. The effect of noncompliance with this requirement on private cost-recovery actions remains to be seen, although private claimants will presumably attempt to draw an analogy with CERCLA § 113(j)(4).

325. 53 Fed. Reg. at 51463 (Dec. 21, 1988).

326. Even then, it is not clear that states would be entitled to review on the Record in an action to recover costs of a state response action not undertaken pursuant to a cooperative agreement or contract with EPA.

327. 53 Fed. Reg. 51465 (Dec. 21, 1988).

328. Proposed §§ 300.415(n), 300.820.

329. Proposed § 300.415(b)(4).

330. "Time-critical" removals are those where a planning period of at least six months is not anticipated.

331. In addition, the administrative record file for emergency removal actions where on-site activities cease within 30 days of initiation need only be available for public inspection at the central location, and not at or near the site, due to the administrative burden on the response to such emergencies. Where feasible, a notice may be placed at the site explaining where the administrative record file will be available.

332. 53 Fed. Reg. at 51469 (Dec. 21, 1988).

333. Id.

334. 53 Fed. Reg. at 51470 (Dec. 21, 1988). The preamble does not discuss whether the determination of whether a removal is "time-critical" will be controversial.

335. 53 Fed. Reg. at 51470 (Dec. 21, 1988).

336. Id.

337. Proposed § 300.415(n).

338. Proposed § 300.435(c).

339. 53 Fed. Reg. at 51453 (Dec. 21, 1988).

340. One may expect challenges to the proposed provision that the availability of pre-removal notice and comment depends on whether the removal action is expected to take 60 days or more. Presumably, the challenger would need to show that the prejudice due to failure to entertain comments outweighed the public benefit of a clean, easily administered rule.

341. 53 Fed. Reg. at 51409 (Dec. 21, 1988).

342. 53 Fed. Reg. at 51405 (Dec. 21, 1988).

343. One frequently cited criterion for sustaining an administrative order is that it was issued pursuant to established administrative procedures. See Marshall v. Barlow's, Inc., 436 U.S. 307, 8 ELR 20434 (1978).

344. Courts will make the final determination of the NCP, but EPA asserts the authority to set forth in the NCP the standard on which private response actions are to be judged, in order to encourage protective responses.

19 ELR 10103 | Environmental Law Reporter | copyright © 1989 | All rights reserved