Balancing the Criteria Case by Case
On a case-by-case basis, the relevant criteria are “balanced in a risk management judgment as to which alternative provides the most appropriate solution for the site” (EPA, 1990a). Under CERCLA, EPA “expects to use treatment to address the principal threats posed by a site, wherever practicable” (EPA, 1996c, p. 2). Practicability, however, is “based on the balancing of trade-offs among alternatives that are conducted during the selection of remedy” (EPA, 2009b). In upholding the NCP against challenges seeking to require only permanent remedies, the Court of Appeals for the D.C. Circuit held that “nothing in CERCLA §121… suggest[s] that selecting permanent remedies is more important than selecting cost-effective remedies.”6 Rather, the emphasis on permanent solutions and treatment is balanced by the coequal mandate for remedies to be cost-effective (EPA, 1996c). As a result, 65 percent of EPA CERCLA source control records of decision published from FY 1998 to FY 2008 have included a containment component, and treatment was “not practical” at 56 percent of the Superfund sites in which the record of decision (ROD) was issued from 2005 to 2008 (EPA, 2010c).
The Resource Conservation and Recovery Act (RCRA) is primarily a statute regulating how wastes (solid and hazardous wastes) must be managed to avoid potential threats to human health and the environment, as opposed to CERCLA’s focus on the cleanup of contamination (EPA, 1976). However, the RCRA corrective action authority is a hazardous waste cleanup program analogous to CERCLA that applies to past disposal locations on RCRA-permitted facilities, and for facilities that are closing without obtaining permits (including DOD facilities). Although RCRA is a federal program, most states have been authorized by EPA to implement the program.
EPA’s written policy is that the “RCRA and CERCLA remedial programs should operate consistently and result in similar environmental solutions when faced with similar circumstances,” i.e., procedural differences between RCRA and CERCLA should not substantively affect the outcome of remediation (EPA, 1996b, 1997a, and 2011c).7 EPA uses essentially the same remedy selection criteria and the same expectations for RCRA remediation as for CERCLA, specifically including the preference for “treatment to address the principal threats posed by a site whenever practicable and cost-effective.” (EPA, 1996b).8 Substantively, cleanups required pursuant to CERCLA and RCRA corrective action are equivalent (see Figure 3-1,, which compares very generally the CERCLA and RCRA and remediation processes). (See Appendix D for details).
State Cleanup Programs
Because the RCRA cleanup process is driven primarily by guidance rather than regulation, states (and EPA in certain circumstances) have more flexibility in remedy selection and, in fact, some do not follow the EPA guidance (by definition, guidance is not legally binding). The process is described in Appendix D in more detail.
States implement RCRA programs within their boundaries and normally serve as lead regulator for non-NPL installations and are a “regulatory team member” at BRAC sites (U.S. Army, 2009b). Additionally, state requirements can be incorporated into CERCLA cleanups because ARARs may include state regulatory requirements (EPA, 1990a). CERCLA “specifies that state laws ‘concerning removal and remedial actions, including state laws regarding enforcement, shall apply to removal and remedial actions at facilities owned or operated by [the federal government] when such facilities are not included on the NPL.’”9 (U.S. Army, 2009b). Many of the state remediation regulations are similar to the federal approach, but states may adopt (and some have done so) their own cleanup policies or preferences.
Although there may be some states that set different cleanup goals than EPA for the same chemicals or situation, most states use EPA values and guidance and rely upon CERCLA and RCRA authorities for their legal framework. Most states have essentially adopted the federal RCRA corrective action program
Although there is no known large buried CWM site in New York, it is relevant in understanding the overarching state cleanup process to recognize that even the New York state statute (which requires sites to be restored “to predis-posal conditions, to the extent feasible”) has been interpreted by the highest court in the state to mean that remedies may “reduce rather than completely eliminate dangers” and that this statute “evinces a preference for the most thorough cleanup that makes sense in light of technical feasibility and cost-effectiveness.”10 The New York remediation “may encompass measures that run a gamut from removal of wastes to institutional controls… to address harms that
6Ohio v. EPA, 997 F.2d 1520, 1533, D.C. Cir. 1993.
7EPA uses the Corrective Action Advance Notice of Proposed Rule Making (ANPRM) as its corrective action guidance.
8CERCLA includes explicit statutory remedy selection criteria which express, among other things, a preference for treatment (see discussion above). This preference is also incorporated into the CERCLA cleanup regulations (EPA, 1990a). Although the RCRA statute does not contain a statutory preference, EPA directed its staff to use as “guidance” essentially the same remedy selection criteria as provided in CERCLA (EPA, 1997a). In particular, it specified “remedy expectations” that are intended to “guide development of remedial alternatives” (EPA, 1996b). These expectations are “not binding requirements,” but are often followed because they “reflect [EPA’s] collective experience” (EPA, 1996a). Specifically, “EPA expects to use treatment to address the principal threats posed by a site whenever practicable and cost-effective” (EPA, 1996b).
942U.S.C. § 9620(a)(4)(2001).
10New York State Superfund Coalition Inc. v. New York State DEC at 9-10 (N.Y., No. 189, 12/15/11). Available at http://www.courts.state.ny.us/CTAPPS/Decisions/2011/Dec11/189opn11.pdf.