What Is Wrong With the 1990 National Contingency Plan?

20 ELR 10371 | Environmental Law Reporter | copyright © 1990 | All rights reserved

What Is Wrong With the 1990 National Contingency Plan?

Donald A. Brown

Mr. Brown is the Director of the Bureau of Hazardous Sites and Superfund Enforcement, Office of Chief Counsel, Commonwealth of Pennsylvania Department of Environmental Resources. M.A., 1976, New School for Social Research; J.D., 1973, Seton Hall University School of Law; B.S., 1967, Drexel Institute of Technology. The author has been an environmental lawyer with the states of New Jersey and Pennsylvania since 1974. The views expressed are those of the author and are not intended to represent the position of the Pennsylvania Department of Environmental Resources. This Dialogue is a modified version of an article that is forthcoming in the COLUMBIA JOURNAL OF ENVIRONMENTAL LAW.

[20 ELR 10371]

On March 8, 1990, the Environmental Protection Agency (EPA) published the revised national contingency plan (NCP) in the Federal Register.1 In early June 1990, Pennsylvania and eight other states filed suit challenging the revised NCP. In New York v. EPA,2 the states raise issues that go to the heart of EPA's approach to legal liability for responsible persons in several of its environmental programs. All too often, after a potentially responsible party (PRP) has created a costly environmental cleanup problem, EPA sets the PRP's legal liability at a level that accounts for the cleanup costs rather than at a level equal to the damage to the environment.3 The 1990 NCP continues this trend by allowing EPA to determine that a cleanup is adequate even when the cleanup remedy uses fences or deed restrictions to keep people away from a hazardous waste site, writes off contaminated groundwater, or mitigates immediate harm rather than restore the damaged environmental resources. The NCP sustains EPA's enforcement policy, which confuses the practical need for cost consideration where financial resources will not support full cleanup with the public policy need for liability that ensures full environmental restoration.

Cleanup Standards Under SARA and the 1990 NCP

After six years of controversy about the absence of cleanup standards in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA),4 Congress passed the Superfund Amendments and Reauthorization Act of 1986 (SARA), which created § 121 on cleanup standards.5 In 1982, EPA had been sued by New Jersey and the Environmental Defense Fund for failure to include cleanup standards in the NCP.6 In 1985, settlement of the case required EPA to propose amendments to the NCP. The amendments were to include the use of relevant quantitative health and environmental standards and criteria developed by EPA under other environmental laws; and a rule addressing whether response activities must comply with other federal, state, or local environmental laws.7 On November 20, 1985, the NCP was amended in accordance with the settlement entered into earlier in the year.8

In 1986, SARA reauthorized the Superfund with $8.5 billion over five years and required the President to revise the NCP to conform to those amendments.9 Congressional dissatisfaction with EPA's prior approaches to the cleanup of Superfund sites gave rise to the CERCLA § 121 cleanup standards.10 For the first time, § 121 includes in the Superfund statute guidance on developing cleanup standards. However, § 121 does not include specific cleanup standards or a generic approach for all classes of pollutants. Instead, CERCLA § 121 mimics the 1985 NCP rules: Cleanup standards must assure protection of human health and the environment, be cost-effective, and be in accordance with the NCP.11 Also, any cleanup standards must attain legally applicable or relevant and appropriate federal and state standards, requirements, criteria, or limitations (ARARs), unless the ARAR can be waived in accordance with expressly identified waiver provisions.12

Although CERCLA § 121 contains narrative guidance rather than specific numeric cleanup standards, § 121(d)(2) lists several statutes whose standards must be attained if applicable or relevant and appropriate. CERCLA § 121(d)(2) requires that remedial actions attain maximum contaminant level goals established under the Safe Drinking [20 ELR 10372] Water Act (SDWA),13 and water quality criteria established under the Federal Water Pollution Control Act,14 "where such goals or criteria are relevant and appropriate under the circumstances of the release or threatened release."15

Section 121 also states that the President, in selecting a remedy, shall prefer "remedial actions in which treatment which permanently and significantly reduces the volume, toxicity or mobility of hazardous substances, pollutants, and contaminants is a principle element."16 The President must 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. Further, the President shall select remedies that use such solutions and technologies to the "maximum extent practicable."17

Although the CERCLA § 121 cleanup standards provide statutory guidance on the acceptability of cleanup decisions under Superfund, EPA retains great discretion to interpret the details of this predominately narrative guidance. Accordingly, one commentator views the effectiveness of the 1986 cleanup standards as follows:

Although the new act appears strengthened by inclusion of cleanup requirements from specific environmental statutes, this strength is largely illusory. The statutory provisions cited by the Act must still be legally applicable or relevant and appropriate, and broad waivers from requirements continue to be available. Determinations regarding these matters, as in the previous regulations, are apparently still left to EPA. . . . Thus, the new act may not differ substantially from the 1980 CERCLA statute and regulations in terms of supplying a durable standard of cleanliness for hazardous waste sites.18

The 1986 SARA amendments, like the 1980 version of Superfund, left open many gaps to be closed by the NCP. On December 21, 1988, EPA proposed revisions to the NCP to implement SARA.19 On February 2, 1990, after the Natural Resources Defense Council sued EPA for failure to revise the NCP within 18 months after SARA's enactment,20 EPA delivered to the Federal Register the revised NCP.21

The 1990 version of the NCP outlines the following nine criteria, derived from CERCLA § 121 that are to be considered in selecting a remedy at a Superfund site:

(1) overall protection of human health and the environment;

(2) compliance with ARARs of federal or state laws or appropriateness of a waiver;22

(3) long-term effectiveness and permanence;

(4) reduction of toxicity, mobility, or volume through treatment;

(5) short-term effectiveness;

(6) implementability;

(7) cost-effectiveness;

(8) state acceptance; and

(9) community acceptance.23

The NCP asserts that the first two criteria, protection of health and the environment and compliance with ARARs, are "threshold" criteria; they must be met unless EPA determines that a statutory variance from an ARAR is appropriate.24 Criteria three through seven are factors to be balanced in determining which of the alternative remedies is appropriate.25 Criteria eight and nine, state and community acceptance, are identified as modifying criteria to be considered only in selecting the remedy.26

Because remedies must satisfy the first two criteria before cost is taken into account, the NCP initially appears to stand for the proposition that the environmental goals identified in the statute may not be attenuated by cost considerations. In fact, the NCP recognizes that cost considerations are to be factored into the remedial selection process only after the environmental goal of the remedy has been determined through identification of ARARs.27 The preamble to the NCP states:

EPA agrees that cost can only be considered in selecting a remedy from among protective alternatives. The remedy selection process requires that alternatives must be demonstrated to be protective and ARAR-compliant (or justify a waiver) in order to be eligible for consideration in the balancing process by which the remedy is selected. This sequence of steps ensures that the selected remedy will be protective of human health and the environment and that protection of human health and the environment will not be compromised by other selection factors, such as cost.28

A cost-effectiveness review is appropriate, therefore, only among cleanup alternatives that can meet the environmental protection goals outlined in the first two remedy selection criteria. The legislative history of SARA also makes it clear that cost-effectiveness is to be considered only after the environmental protection goals have been established. For instance, the Congressional Record states:

The provision that actions under both § 104 and 106 must be cost effective is a recognition of EPA's existing policy under the NCP. An analysis of cost effectiveness begins [20 ELR 10373] only after a remedial action has been selected in compliance with the health and environmental protection requirements, permanent treatment requirements, and other standards, criteria or limitations imposed under law. The cost effectiveness requirement here, as under current law, does not apply to the selection of the remedial action but rather applies to choosing the least costly alternative method of effectively implementing a remedial action once one has been selected.29

In addition, the conference committee report on SARA states:

The term "cost-effective" means that in determining the appropriate level of cleanup the [agency] first determines the appropriate level of environmental and health protection to be achieved and then selects a cost-efficient means of achieving that goal. Only after the [agency] determines, by the selection of applicable or relevant and appropriate requirements, that adequate protection of human health and the environment will be achieved, is it appropriate to consider cost-effectiveness.30

Like the 1990 NCP, the 1985 NCP also made it clear that cost considerations, although relevant for choosing among remedies, were not to become the basis for waiving or otherwise modifying environmental protection goals.31

In the preamble to the 1990 NCP, EPA agrees that the legislative history characterizes the role of cost in selecting the remedy as secondary to environmental protection:

EPA believes that cost is a relevant factor for consideration as part of the selection of the remedy from among protective, ARAR-compliant alternatives, and not as merely as part of the implementation phase.32 EPA believes this position is consistent with both the statute and legislative history . . . . [T]his approach is also in line with the legislative history underlying the SARA Amendments, which added section 121 to CERCLA.

This analysis leads to the conclusion that if one identifies the environmental protection objectives specified in the NCP's first two threshold criteria, namely, protection of human health and the environment and attainment of ARARs, then one has determined the degree of environmental protection to be expected of any cleanup action under Superfund after the remedy is implemented. This interpretation further leads to the conclusion that cost considerations are not relevant to the identification of these environmental protection objectives. However, a close examination of other sections of the recent NCP leads to the conclusion that EPA considers cost at virtually every step of the remediation selection process.

Engineering or Institutional Controls: Using Fences or Deed Restrictions to Declare a Cleanup Adequate

Several provisions of the 1990 NCP regulations allow EPA to declare a cleanup adequate by relying on fences or deed restrictions to limit a site's future use. The 1990 NCP also adds a section entitled "Expectations," which further clarifies how the proposed criteria for selecting the appropriate environmental protection goals will be interpreted by EPA:33

(B) EPA expects to use engineering controls, such as containment, for waste that poses a relatively low long-term threat or where treatment is impracticable.

(C) EPA expects to use a combination of methods, as appropriate, to achieve protection of human health and the environment. In appropriate site situations, treatment of the principle threats posed by a site, with priority placed on treating waste that is liquid, highly toxic or highly mobile, will be combined with engineering controls (such as containment) and institutional controls, as appropriate, for treatment residuals and untreated wastes.

(D) EPA expects to use institutional controls such as water use and deed restrictions to supplement engineering controls as appropriate for short- and long-term management to prevent or limit exposure to hazardous substances, pollutants, or contaminants. Institutional controls may be used during the conduct of the remedial investigation/feasibility study (RI/FS) and implementation of the remedial action and, where necessary, as a component of the completed remedy. The use of institutional controls shall not substitute for active response measures (e.g., treatment and/or containment of source material, restoration of ground waters to their beneficial uses) as the sole remedy unless such active measures are determined not to be practicable, based on the balancing of trade-offs among alternatives that is conducted during the selection of remedy.34

Engineering controls EPA has relied on as part of a remedy to protectagainst exposure from hazardous substances have, in the past, included placing fences or barriers around contaminated sites.35 Institutional controls EPA has recommended for consideration include placing regulatory restrictions on use and construction of private water wells; restrictions on the acquisition of real property; requirements that zoning changes be made; restrictions on property transactions, including negative covenants and easements; and restrictions on deed notices.36

The NCP thus authorizes the use of engineering and institutional controls to supplement remedies that alone will not protect public health. Presumably, such an approach allows EPA to declare that a cancer risk of 10<-3> from dermal contact or ingestion is "acceptable," provided that the site is behind a protective fence or other "engineering control" that prevents exposure. If institutional controls can make a remedy acceptable because of cost considerations, contaminated groundwater need not be cleaned up if deed restrictions prevent its use. This approach, however, is inconsistent with the NCP's premise that the site remedy should achieve environmental protection goals before considering costs.

EPA's desire to use engineering or institutional controls to obtain "acceptable" cleanups is an attempt to allow cost consideration when selecting remedies. Thus, the NCP gives EPA almost unlimited flexibility to use fences, deed restrictions, or other institutional or engineering devices to make a remedy acceptable where EPA deems another cleanup remedy too costly. For example, if EPA determines that a cleanup remedy for PCB-contaminated soils to a level of one part per million is too costly, it can simply [20 ELR 10374] target a cleanup level of 25 parts per million as acceptable by requiring that the site be fenced off forever, thereby limiting exposure.37

This approach might be appropriate if the site is fund financed, making available scarce public funds for more sites. However, EPA's approach structures PRP liability by the use of engineering and institutional controls.38 The recent suit challenging the revised NCP39 seeks to have engineering and institutional controls limited to fund-financed cleanups or where private parties do not have the money to completely remediate the sites. The plaintiffs seek to clarify that the use of engineering and institutional controls will not modify a PRP's legal liability to do additional cleanup in the future. In any event, engineering and institutional controls should not be used to structure legal liability for PRPs where sites are so contaminated that full cleanup is simply not practical.

EPA's Approach to Groundwater Cleanup

Despite CERCLA § 121's requirements to select remedies that will protect the health and the environment and achieve ARARs, EPA has in the 1990 NCP announced its intention to use its groundwater classification scheme to modify cleanup standards under CERCLA.40 The preamble to the NCP explains that the required degree of contaminated groundwater cleanup at Superfund sites depends on EPA's groundwater classification scheme, which includes the following classifications:

Class I ground waters are resources of unusually high value that are highly vulnerable to contamination because of the hydrological characteristics of the areas where they occur. . . .

Class II ground waters are all non-Class I ground waters that are currently used [IIA] or are potentially available [IIB] for drinking water or other beneficial uses. . . .

Class III ground waters are not considered to be potential sources of drinking water and are of limited beneficial use. These are ground waters which are highly saline, or are otherwise contaminated beyond levels that allow restoration using methods reasonably employed in public water treatment systems. This condition must not be the result of a release that is attributable to a specific site.41

The preamble to the NCP also announces that EPA will develop restoration time frames for each contaminated groundwater site.42 Restoration time periods refer to the time allowed to achieve established remediation levels,43 which may range from brief periods (one to five years) to extended periods (perhaps decades).44 According to the NCP's preamble, EPA may consider several factors in determining restoration time frames:

The Superfund program will usually consider several different alternative restoration time periods and methodologies to achieve the preliminary remediation goal and select the most appropriate option (including the final remediation goal) by balancing tradeoffs of long-term effectiveness, reductions of toxicity, mobility, or volume through treatment, short-term effectiveness, implementability, and cost.45

MCLs vs. MCLGs

CERCLA § 121(d) requires that remedial actions attain maximum contaminant level goals (MCLGs) under the SDWA "where such goals or criteria are relevant and appropriate under the circumstances of the release or threatened release."46 The SDWA requires EPA to promulgate national primary drinking water standards, including maximum contaminant levels (MCLs), which represent the maximum permissible concentration in water that may be delivered to any user of a public water system.47 An MCL must be set as close as feasible to an MCLG, a level at which no known or anticipated adverse human health effects may occur, with an adequate margin of safety.48 MCLs are based on the best available technology, taking cost into consideration.49 In summary, MCLGs are health-based while MCLs are cost-limited. Although all of the MCLGs for carcinogens have been set at zero, some of the MCLs are at levels approaching 3X10<-4>,50 a risk that is technically outside EPA's acceptable risk range.

Notwithstanding SARA's mandate to identify MCLGs as the applicable ARAR, the 1990 NCP states that

[m]aximum contaminant level goals (MCLGs) established, under the Safe Drinking Water Act, that are set at levels above zero, shall be attained by remedial actions for ground or surface waters that are current or potential sources of drinking water, where the MCLGs are relevant and appropriate under the circumstances of the release based on the factors in § 300.400(g)(2). If an MCLG is determined not to be relevant and appropriate, the corresponding maximum contaminant level (MCL) shall be attained where relevant and appropriate to the circumstances of the release.51

During the floor debate over SARA, Sen. George Mitchell (D-Maine), a member of the House-Senate conference committee on SARA, explained why Congress chose MCLGs over MCLs:

Section 121(d) specifically requires application of maximum contamination level goals . . . whenever they are relevant [20 ELR 10375] and appropriate. The Congress chose to apply [MCLGs] instead of relying only on the legally applicable maximum contamination levels . . . because [MCLGs] are based solely on public health considerations. MCLs can reflect the modification — and loosening — of such health-based standards on the basis of cost considerations that should not be applied to Superfund cleanups. Use of MCLs for Superfund cleanups could result in cleanups that do not protect human health and the environment.52

This legislative history demonstrates Congress' express intent to favor MCLGs over MCLs. The recent lawsuit challenging the NCP53 seeks to clarify that PRPs are legally liable until statutorily mandated MCLG levels are met.

Class I and Class II Groundwaters

For Class I and Class II groundwaters, the 1990 NCP declares that MCLs and non-zero MCLGs are the generally applicable or relevant and appropriate standard.54 This is a declaration by EPA that despite the applicability of a more stringent ARAR groundwater standard under the Resource Conservation and Recovery Act (RCRA) and regulations promulgated under it, the less environmentally stringent MCL will always be deemed the appropriate ARAR. RCRA regulations require that RCRA sites be cleaned up either to MCL or background levels or to alternatives that are available through a variance procedure, commonly referred to as the alternative concentration limit (ACL) procedure.55 Based on the mere existence of alternative cleanup standards, EPA has presumed that if more than one ARAR is applicable to a remedy, the least environmentally stringent is appropriate under CERCLA. This presumption is of questionable legal validity under CERCLA. In fact, a statement by Congressman Robert Roe of New Jersey supports the conclusion that Congress intended EPA to select the most stringent ARAR where more than one exists: "Where two applicable, relevant or appropriate Federal or State standards, requirements, criteria, or limitations pertain to the same situation, or to the same hazardous substance, pollutant, or contaminant, the most stringent one shall be used in selecting a remedial action."56 Thus, for Class I and Class II groundwaters, the 1990 NCP allows EPA to select remedies based on cost that may take decades to implement.

Class III Groundwater

Of even greater concern, from both environmental and legal points of view, are the NCP provisions for Class III groundwaters, water unsuitable for human consumption. The NCP states that for Class III groundwaters, MCLs and MCLGs are neither applicable nor relevant and appropriate.57 Restoration periods and remediation levels are to be tailored for returning the groundwater only to a "beneficial use," such as agricultural or industrial use.58 Since, by definition, Class III waters are not capable of restoration for most "beneficial uses," the NCP defines a cleanup scheme that presumably envisions no cleanup of Class III groundwaters. In this way, the groundwater classification scheme unlawfully preempts RCRA or other relevant and appropriate standards. This approach presupposes that if a groundwater system is already contaminated, then it is senseless to require cleanup of the site. However, such logic not only overlooks relevant law requiring that ARARs be applied to cleanups, but also ignores the fact that regulators must begin somewhere if contaminated groundwater systems are to be remediated. The NCP groundwater classification scheme unlawfully excludes groundwater systems that have been contaminated by many sources.

The NCP groundwater protection strategy, thus, becomes a super-ARAR with no basis in law. It unlawfully allows cost considerations to set remediation goals, accepts nontreatment techniques such as natural attenuation over decades of time to ignore groundwater pollution, and writes off contaminated groundwater from remediation that is otherwise required under law. New York v. EPA59 attempts to require that the NCP be amended so that responsible parties are always legally responsible for cleaning up contaminated groundwater as fast as technically feasible.

The Risk Range

The NCP defines a range of health risks from cancer-causing substances for determining the acceptability of cleanups.60 The 1990 NCP establishes, as generally acceptable, cleanup levels that subject surrounding populations to a cancer risk from 1 in 10,000 (10<-4>) to 1 in 1,000,000 (10<-6>). The 10<-6> level is only the "point of departure" risk for determining remediation goals when ARARs are unavailable.61 In response to comments on the proposed NCP asserting that EPA should not have identified a risk range as constituting acceptable cleanup standards, the preamble to the 1990 NCP states:

EPA believes that use of a risk range is consistent with the mandates in CERCLA and disagrees with comments that Superfund should not use a risk range. CERCLA does not require the complete elimination of risk or of all known or anticipated adverse effects, i.e., remedies under CERCLA are not required to entirely eliminate potential exposure to carcinogens.62

Despite other statements in the NCP that cost should not be taken into account until after the environmental protection goals and the ARARs have been identified, this risk range for carcinogens allows EPA to consider cost in determining the environmental protection goals of the remedial action.

However, the legislative history that EPA adopted makes it clear that cost is not to be considered in setting environmental protection goals. Since a risk range of 10<-4> to 10<-6> creates a discretionary range of one hundredfold for considering cost when selecting a remedy, one can argue that the NCP's risk range for cancer-causing substances is inconsistent [20 ELR 10376] with statutory provisions that prohibit consideration until after environmental protection goals are set.

EPA's justification of the chosen risk range — that CERCLA does not require the complete elimination of the risk — is misdirected. EPA could have chosen a risk protection goal such as 10<-6> without taking the position that all risk had to be eliminated. In fact, the NCP recognizes that 10<-6> represents a risk generally believed to be adequately protective. The NCP explains EPA's interpretation of 10<-6> risk as a "point of departure" as follows:

The use of 10<-6> [as a point of departure] expresses EPA's preference for remedial actions that result in risks at the more protective end of the risk range, but this does not reflect a presumption that the final remedial action should attain such a risk level. Factors related to exposure, uncertainty and technical limitations may justify modification of initial cleanup levels that are based on the 10<-6> risk level. The ultimate decision on what level of protection will be appropriate depends on the selected remedy, which is based on the criteria described in § 300.430(e)(9)(iii). . . . Also, EPA does not agree that cost should be considered when setting the preliminary remediation goal because reliable cost information is not available at this step of the process. Cost is ultimately one of the criteria used in selecting a remedy.63

EPA has included a range of "acceptable" carcinogenic risks, as compared with a numerically defined risk, for attaining environmental protection goals so that it can consider cleanup costs in choosing a remedy.

CERCLA provides that whenever a remedy leaves any pollutants on the site, EPA will review the remedy every five years to determine whether it is protective. As a departure from this protective provision, the final NCP regulations allow EPA to approve a cleanup where contaminants remain on the site, while preventing EPA from requiring additional cleanup later. To ensure complete cleanup, the final regulations should be modified so that a responsible party's legal liability continues until all pollutants are removed from the site.

The Use of Permanent Treatment

CERCLA § 121 states that the President, in selecting a remedy, is to prefer actions in which treatment "which permanently and significantly reduces the volume, toxicity or mobility of hazardous substances, pollutants, and contaminants is a principal element."64 CERCLA § 121 requires the President 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 substance. . . ."65 Further, remedies selected must use such solutions and technologies to the "maximum extent practicable."66

The 1990 NCP lumps these statutory requirements with four other balancing criteria that are to be considered in any remedy selection. They are long-term effectiveness, short-term effectiveness, implementability, and cost.67 In this way, the NCP weakens the strong statutory preference for balancing the need for treatment with cost considerations.

Conclusion

The untold story about Superfund is that society has created such costly and serious environmental problems that hundreds of millions of dollars are sometimes necessary to clean them up fully. The story is untold because the NCP allows EPA to conduct remedies that only partially mitigate the impact of the site on the environment, while asserting that these partial remedies are fully protective and in compliance with the law. Such a policy baldly proposes that responsible parties who have created a serious environmental problem that is too costly to clean up with public or private funds should simply be released at a level that is affordable to them. EPA environmental cleanup policy is, therefore, fundamentally flawed. It assumes that the inability to fund inordinately high cleanup costs supersedes the need for ensuring full environmental restoration through continuing legal liability. In a classic example of bureaucratic circularity, the NCP's mandatory cost considerations are driving environmental legal liability determinations based on cleanup standards that have already accounted for the polluter's cost-bearing burden.

1. 55 Fed. Reg. 8666-65 (1990) (to be codified at 40 C.F.R. pt. 300). For an extensive analysis of the 1990 NCP, see Starfield, The 1990 National Contingency Plan — More Detail and More Structure, But Still a Balancing Act, 20 ELR 10222 (June 1990).

2. No. 90-1276 (D.C. Cir. filed May 31, 1990). Joining Pennsylvania in the suit were California, Colorado, Kentucky, Minnesota, New Jersey, New Mexico, New York, Minnesota, and Ohio. Not all states plan to litigate all issues. The issues identified in this Dialogue are of specific concern to Pennsylvania.

3. Pennsylvania has had problems with EPA in this regard in a variety of cases and programs, including decisions relating to RCRA and EPA's implementation of its groundwater policy.

4. "Superfund" (the Fund) is the commonly used name for the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 001-075. The name stems from the fund established by CERCLA that may be used to directly finance cleanup actions. The Fund was originally established under CERCLA § 221, 42 U.S.C. § 9631 (1982), but was modified in 1986 by § 517 of the Superfund Amendments and Reauthorization Act of 1986 (SARA), and be recodified at § 9507, Chapter 98 of the Internal Revenue Code.

5. 42 U.S.C. § 9621 (Supp. V 1987), ELR STAT. CERCLA 051-054. Criticisms of Superfund for lack of standards include remarks of Rep. David Stockman (R-Mich.), 126 CONG. REC. 26,759, 26,786 (daily ed. Sept. 23, 1980).

6. See Environmental Defense Fund v. EPA, No. 82-2234 (D.C. Cir. Feb. 1, 1984); New Jersey v. EPA, No. 82-2238 (D.C. Cir. Feb. 1, 1984) (summarized at 50 Fed. Reg. 5862-63 (1985)).

7. Id.

8. 50 Fed. Reg. 47912 (1985).

9. 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 (Dec. 1986). Although Congress placed the authority for administering CERCLA with the President, most of that authority was delegated to the EPA Administrator (for nonfederal sites). Exec. Order No. 12580, 52 Fed. Reg. 2933, ELR ADMIN. MATERIALS 45031 (Jan. 29, 1987).

10. One commentator stated:

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 these substances.

Freedman, Proposed Amendments to the National Contingency Plan: Explanation and Analysis, 19 ELR 10103, 10113 (Mar. 1989).

11. Compare CERCLA § 121(a), 42 U.S.C. § 9621(a) (Supp. V 1987), ELR STAT. CERCLA 051 with 50 Fed. Reg. 47912 (1985).

12. CERCLA § 121(d)(2), (d)(4), 42 U.S.C. § 9621(d)(2), (d)(4) (Supp. V 1987), ELR STAT. CECLA 052, 053.

13. 42 U.S.C. §§ 300f-300j-26, ELR STAT. SDWA 001-024.

14. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA 001-065.

15. CERCLA § 121(d)(2)(A)(ii), 42 U.S.C. § 9621(d)(2)(A)(ii) (Supp. V 1987), ELR STAT. CERCLA 052.

16. Id. § 121(b)(1), 42 U.S.C. § 9621(b)(1) (Supp. V 1987), ELR STAT. CERCLA 051.

17. Id.

18. Sheridan, How Clean Is Clean?: Standards for Remedial Actions at Hazardous Waste Sites, 6 STAN. ENVTL. L.J. 9, 24 (1986-87).

19. 53 Fed. Reg. 51394 (1988). Virtually every section of the 1985 NCP relating to hazardous site response was revised or reoganized in the proposed NCP revisions, and most of the changes have been finalized in the 1990 revisions. For a discussion of the NCP's history before the 1988 proposed revisions, see Freedman, supra note 10.

20. Natural Resources Defense Council v. Reilly, No. 88-3199 (D.D.C. consent decree filed June 14, 1989) (challenging EPA's failure to comply with CERCLA § 105(b), 42 U.S.C. § 9605(b) (Supp. V 1987), ELR STAT. CERCLA 022)).

21. 55 Fed. Reg. 8666-65 (1990) (to be codified at 40 C.F.R. pt. 300).

22. Six waivers to meeting ARARs are recognized by CERCLA § 121(d)(4), 42 U.S.C. § 9621(d)(4), ELR STAT. CERCLA 053: (1) when the remedy is interim; (2) when there is greater risk to health and the environment through the implementation of the remedy; (3) when it is technically impractical to implement the remedy; (4) when an alternative remedy would acquire an equivalent standard of performance; (5) when a state ARAR has been inconsistently applied; and (6) when necessary for fund balancing. For a discussion of ARARs generally, see Starfield, supra note 1, at 10230-36. For a discussion of ARAR waivers see, Freedman, supra note 10, at 10131.

23. 55 Fed. Reg. 8849-50 (1990) (to be codified at 40 C.F.R. § 300.430(e)(9)(iii)(A)-(H)).

24. Id. at 8850 (to be codified at 40 C.F.R. § 300.430(f)(1)(i)(A)).

25. Id. (to be codified at 40 C.F.R. § 300.430(f)(1)(i)(B)).

26. Id. (to be codified at 40 C.F.R. § 300.430(f)(1)(i)(C)).

27. Id. at 8726 (preamble, response to comments on 40 C.F.R. § 300.430(f) (remedy selection)).

28. Id.

29. 132 CONG. REC. S14913 (daily ed. Oct. 3, 1986).

30. H.R. REP. No. 962, 99th Cong., 2d Sess. 245 (1986) (emphasis added).

31. 40 C.F.R. § 300.68(h)(1)-(3) (1985).

32. 55 Fed. Reg. at 8726; see also supra note 30.

33. Id. at 8846 (to be codified at 40 C.F.R. § 300.430(a)(1)(iii)).

34. Id. (emphasis added).

35. Both engineering and institutional controls were approved by EPA as a method of making a cleanup acceptable in EPA v. Texas, No. 88-1917 (S.D. Tex. Aug. 1988) (consent decree).

36. EPA has recommended these components in several cases in Pennsylvania. EPA guidance on groundwater cleanup at Superfund sites also recommends these institutional controls. See EPA, Guidance on Remedial Actions for Contaminated Groundwater at Superfund Sites (§ 5.2.2.4), EPA/OSWER Directive No. 9283.1-02 (Dec. 1, 1988).

37. This is the method EPA has followed in determining "acceptability" of cleanup in one case. See EPA v. Texas, No. 88-1917 (S.D. Tex. Aug. 1988) (consent decree).

38. New York v. EPA, No. 90-1276 (D.C. Cir. filed May 31, 1990).

39. Liability is structured in this way because EPA must declare in the record of decision that the remedy is protective of human health and the environment and is in full compliance with ARARs. Although § 121(c) of CERCLA requires that the President review every five years a site where pollutants remain to determine if the site is at that time protective, EPA's finding that a site that has relied on a fence or deed restriction is protective will put EPA in an extremely difficult position if it wants to assert in the future that a site is not protective. PRPs are sure to argue that EPA is estopped from asserting that the remedy is not protective at the five-year review unless EPA can show that the remedy failed.

40. 55 Fed. Reg. at 8732.

41. 53 Fed. Reg. 51433 (1988) (emphasis added).

42. 55 Fed. Reg. at 8732.

43. Id.

44. Id.

45. Id.

46. CERCLA § 121(d)(2)(A)(ii), 42 U.S.C. § 9621(d)(2)(A)(ii) (Supp. V 1987), ELR STAT. CERCLA 052.

47. SDWA § 1401(3), 42 U.S.C. § 300f(3) (1982 & Supp. V 1987), ELR STAT. SDWA 002.

48. Id. § 1412(b)(4), 42 U.S.C. § 300g-1(b)(4) (1982 & Supp. V 1987), ELR STAT. SDWA 003.

49. Id. § 1412(b)(4) and (5), 42 U.S.C. § 300g-1(b)(4) and (5) (1982 & Supp. V, 1987), ELR STAT. SDWA 003.

50. Freedman, supra note 10, at 10126 n.218.

51. 55 Fed. Reg. at 8848 (to be codified at 40 C.F.R. § 300.430(e)(2)(B)).

52. 132 CONG. REC. S14915 (daily ed. Oct. 3, 1986).

53. No. 90-1276 (D.C. Cir. filed May 31, 1990).

54. 55 Fed. Reg. at 8732.

55. Regulations implementing RCRA cleanup standards are found at 40 C.F.R. pt. 264 (1989) (Subpart F).

56. 132 CONG. REC. H9600 (daily ed. Oct. 8, 1986) (statement of Rep. Roe, D-N.J.)).

57. 55 Fed. Reg. at 8732.

58. Id.

59. No. 90-1276 (D.C. Cir. filed May 31, 1990).

60. Id. at 8848 (to be codified at 40 C.F.R. § 300.430(e)(2)(i)(A)(2)).

61. Id.

62. Id. at 8716.

63. Id. at 8718.

64. CERCLA § 121(b), 42 U.S.C. § 9621(b) (Supp. V 1987), ELR STAT. CERCLA 051.

65. Id.

66. Id.

67. 55 Fed. Reg. at 8724.

20 ELR 10371 | Environmental Law Reporter | copyright © 1990 | All rights reserved