(1) “treatment technologies are not technically feasible or are not available within a reasonable time frame;” (2) “the extraordinary volume of materials or complexity of the site may make implementation of the treatment technologies impracticable;” (3) “implementation of a treatment-based remedy would result in greater overall risk to human health and the environment due to risks posed to workers, the surrounding community, or impacted ecosystems during implementation (to the degree that these risks cannot be otherwise addressed through implementation measures);” or (4) “implementation of the treatment technology would have severe effects across environmental media” (EPA, 1997a). As an example of the second item above, the use of containment as a presumptive remedy for municipal landfills (EPA, 1997b) means that removal of waste from source areas in those situations can be interpreted as generally not practicable. This case-by-case application of the concept of practicability has been upheld in several court cases [State of Ohio v. U.S. Env’l’t Prot. Agency, 997 F.2d. at 1532 and U.S. v. Ottati & Goss, Inc., 900 F.2d 429 (1st Cir. 1990) (opinion by now Supreme Court Justice Breyer)]. Thus, as long as the remedy is chosen in accordance with the NCP and is performing in accordance with reasonable environmental engineering practices, that is the end of decision making with respect to what is practicable for remedy selection.
The term “maximum extent practicable” is often used informally as a measure of remediation progress even though it has no regulatory bearing in that context. In Chapter 7, the Committee suggests that remedies at complex sites be regularly assessed to determine whether they are being implemented in a manner consistent with good environmental engineering practice and their resulting performance. If a remedy reaches a point where continuing expenditures bring little or no reduction of risk prior to attaining drinking water standards, the Committee recommends that there should be a reevaluation of the future approach to cleaning up the site (called a Transition Assessment). When this point is reached, the chosen active remedy can be said, de facto, to have been operated to the “maximum extent practicable.”
stakeholders) in the form of a Proposed Plan. With regard to the two final, modifying criteria, neither the state nor the community have the legal authority to “veto” a remedy. The provision does mean that the lead agency must engage in a formal community involvement process and, at each NPL facility, provide a technical assistance grant to one eligible nongovernmental organization to hire an independent technical consultant to advise the community. EPA recognizes about 70 Community Advisory Groups at NPL facilities across the country. From 1988 to 2010, 323 technical advisory grants have been awarded (205 providing $50,000 or less and 15 providing a total of more than $250,000) (Catalogue of Federal Domestic Assistance, 2011). Following the public comment period, the lead agency selects a remedy and memorializes it in a Record of Decision.