in the RCRA context, one of the important provisions for the present report is that it provided an exemption from RCRA procedures (for example, permitting and waste manifesting) for responses to explosives or munitions emergencies. It also provided an exemption for munitions on what have become known as operational ranges. Another related provision pertinent to buried CWM is that these do not become subject to RCRA waste-management requirements unless they are actively managed (for example, exhumed). DOD developed an interim guidance for implementation of the MR, which was published in 1998 (DOD, 1998), and has been working to develop it into an Army regulation.
RCRA also has well-defined and established procedures for public involvement, especially in the corrective-action process. The public has a number of opportunities to influence site-characterization procedures, interim measures, and the selection of cleanup alternatives.
Comprehensive Environmental Response, Compensation, and Liability Act
CERCLA is implemented through the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) (40 CFR 300), which provides a structured process for overall responses. CERCLA can be applied at any site at which hazardous substances, pollutants, or contaminants have been released into the environment, including active installations, FUDS, and BRAC sites. CERCLA can also be applied at permitted RCRA facilities. In both EPA and DOD guidance documents dealing with the cleanup of MRSs, including sites with CWM, there is a clear preference for cleanups that follow the regulatory program under CERCLA (EPA, 2005; U.S. Army, 2006) as opposed to RCRA corrective action.
The CERCLA cleanup process involves a number of steps, initiated through an initial assessment of risk. A preliminary assessment or site investigation is performed to gather data to support a determination of to whether a site qualifies for further action. Sites are scored; if they present a significant risk, they may qualify for placement on the National Priorities List (NPL). Cleanup actions under CERCLA can be required regardless of whether a site is listed on the NPL, but NPL listing places a site in a category that requires a tightly structured process that leads to cleanup. Relatively speaking, few MRSs containing CWM are listed on the NPL. The most prominent examples of CWM sites that are NPL-listed are Aberdeen Proving Ground (Edgewood Area) in Maryland, Rocky Mountain Arsenal in Colorado, and Redstone Arsenal in Alabama. Most of the FUDS and BRAC sites, and active installations that contain buried CWM that are addressed under CERCLA would be in the non-NPL site category.
If it is determined to be necessary to reduce risk in an emergency or immediate timeframe, CERCLA removal actions can be used to mitigate a release or threat of a release. Like RCRA interim measures, removal actions are typically short-term actions intended to reduce risk in an immediate time frame but can also be permanent remedies or parts of more permanent remedies. Regardless of whether a site is NPL-listed, a remedial investigation may be required. A remedial investigation is a detailed site investigation that leads to a determination that a site is sufficiently characterized to support the evaluation of cleanup alternatives. A removal action can be conducted before, during, or even after a remedial investigation is completed.
If a remedial investigation results in a determination that further action is needed to reduce risk, a feasibility study is undertaken to evaluate remedial actions, and alternatives are selected with the goal of permanently reducing “the volume, toxicity, or mobility of hazardous substances, pollutants or contaminants.”5
EPA is responsible for implementing CERCLA at most sites. However, Executive Order 12580, issued in 1987, delegated response authority to DOD and other federal land managers for both NPL and non-NPL sites. In addition, Section 120 of CERCLA contains specific procedures for applying CERCLA at federal facilities. Most notably, if a site is not listed on the NPL, DOD and other federal land managers must conduct removal and remedial actions in accordance with state laws and requirements. If a site is NPL-listed, EPA must develop an interagency agreement, often referred to as a federal facility agreement (FFA). An FFA is a binding agreement between EPA and the federal land manager, in this case DOD. A state can also choose to be a signatory to an agreement, but at NPL sites EPA must concur with the cleanup decision. U.S. Army guidance is clear that regulatory agencies and local governments must be part of the CERCLA planning process and must be consulted in key decisions (U.S. Army, 2004). U.S. Army guidance, in effect, treats NPL and non-NPL sites the same with regard to coordination with regulators and meeting regulatory requirements.6
RCRA corrective action and CERCLA are different, but there are important crossovers. An example important for this discussion is known in the CERCLA program as applicable, relevant, and appropriate requirements (ARARs). Basically, requirements of other federal and state environmental laws that are determined to be either applicable or relevant and appropriate must be complied with. Most RCRA waste-management requirements (for media and debris removed from the site, including RCWM) would be considered either applicable or relevant and appropriate at CERCLA sites. Although RCRA administrative requirements, such as the need to obtain RCRA permits, would not be imposed at
5CERCLA remedy-selection factors include threshold criteria, balancing criteria, and modifying criteria and are discussed in many CERCLA guidance documents. (See OSWER Directive 9355.3-01F54, March 1990, available at http://www.epa.gov/superfund/policy/remedy/pdfs/93-55301fs4-s.pdf. Accessed March 21, 2012.)
6Deborah A. Morefield, Environmental Management, Office of the Deputy Undersecretary for Installations and Environment Department of Defense, “Remediation Operations from an OSD Installations and Environment Perspective,” presentation to the committee on November 2, 2011.