7
Policy Implications of a Technical Problem

The overriding question that this report has ad-dressed—whether there are technological limits to attaining health-based ground water cleanup goals—is a classic example of a technical issue with significant policy ramifications. At the passage of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in 1980, in the 1984 expansion of the Resource Conservation and Recovery Act (RCRA) corrective action program, and when Congress reauthorized and expanded CERCLA in 1986, the technical limitations to remediating contaminated ground water were poorly understood. Now that the United States has spent more than a decade trying to meet the public demand to clean up contaminated sites, limitations in the ability of technology to meet society's desires are apparent.

This chapter reviews existing national ground water cleanup policies and recommends changes to reflect the limitations of technology. The term "policy" encompasses not just the laws Congress has passed requiring cleanup of contaminated ground water but also the variety of government documents issued to implement these laws. The chapter begins with a broad overview of the components of ground water cleanup policy in the United States. It then reviews the key evolving policies relevant to sites where technical limitations prevent the achievement of ground water cleanup goals. Finally, the chapter summarizes the committee's recommendations for improving ground water cleanup policies to reflect the limits of technology.



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Alternatives for Ground Water Cleanup 7 Policy Implications of a Technical Problem The overriding question that this report has ad-dressed—whether there are technological limits to attaining health-based ground water cleanup goals—is a classic example of a technical issue with significant policy ramifications. At the passage of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in 1980, in the 1984 expansion of the Resource Conservation and Recovery Act (RCRA) corrective action program, and when Congress reauthorized and expanded CERCLA in 1986, the technical limitations to remediating contaminated ground water were poorly understood. Now that the United States has spent more than a decade trying to meet the public demand to clean up contaminated sites, limitations in the ability of technology to meet society's desires are apparent. This chapter reviews existing national ground water cleanup policies and recommends changes to reflect the limitations of technology. The term "policy" encompasses not just the laws Congress has passed requiring cleanup of contaminated ground water but also the variety of government documents issued to implement these laws. The chapter begins with a broad overview of the components of ground water cleanup policy in the United States. It then reviews the key evolving policies relevant to sites where technical limitations prevent the achievement of ground water cleanup goals. Finally, the chapter summarizes the committee's recommendations for improving ground water cleanup policies to reflect the limits of technology.

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Alternatives for Ground Water Cleanup COMPONENTS OF GROUND WATER CLEANUP POLICY CERCLA and RCRA set overarching national ground water cleanup policy by prescribing priorities and decision frameworks. Most states also have their own versions of these laws, which often can be more prescriptive or more stringent than the federal laws. It is up to public sector managers—primarily in the Environmental Protection Agency (EPA) and its state-level equivalents—to implement the sometimes vague mandates contained in these laws. Courts grant public agencies great deference in developing policy, recognizing the interaction between scientific limitations, economic factors, and sometimes conflicting statutory requirements. Based on the broad statutory mandates of CERCLA and RCRA, the EPA has developed specific requirements for ground water cleanup made binding through regulations. The National Contingency Plan specifies the detailed mechanisms for implementing CERCLA. The proposed Corrective Action Rule provides the mechanisms for implementing site clean-ups under RCRA.1 Regulations are further implemented by guidance documents explaining how to make the many decisions required by the regulations, such as how to determine the necessary frequency of ground water sampling or how to test for the presence of certain contaminants. Unlike regulations, guidance documents are not legally enforceable and thus are not subject to legal challenge. However, regulators can make provisions of guidance documents legally enforceable by including them in enforceable documents such as permits or consent decrees. In addition to regulations and guidance documents, another important set of mechanisms for the development of ground water cleanup policy is the issuance of policy statements by EPA officials. Policy statements are often directed at how work is performed within the government bureaucracy but can have wide-ranging impacts on the substance of the ultimate rules. A key example of a policy statement pertaining to ground water cleanup is a 1992 memorandum directing EPA employees on how to manage sites where dense nonaqueous-phase liquid (DNAPL) contaminants are preventing the achievement of ground water cleanup goals (Clay, 1992). KEY POLICIES ADDRESSING THE TECHNICAL UNCERTAINTY OF GROUND WATER CLEANUP Both CERCLA and RCRA contain provisions for modifying ground water cleanup goals when health-based standards are not technically

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Alternatives for Ground Water Cleanup achievable, as explained in Chapter 6. However, although CERCLA and RCRA contain references to the technical uncertainty of achieving cleanup goals, the causes of the uncertainty are only recently being recognized. Consequently, the policies for regulating sites where health-based cleanup goals may be unachievable are still evolving and have not yet been uniformly applied. The EPA has four types of policies addressing, at least in part, the possibility that existing technology may be unable to achieve current goals for ground water cleanup. These policies, reviewed in detail below, address the following problems: (1) how to implement a site cleanup program early, even while insufficient data are available to determine the design of the final cleanup system; (2) how to manage sites with DNAPL contaminants; (3) how to document that achieving health-based cleanup goals is not possible; and (4) how to encourage development and use of innovative technologies. Early Action Policy The EPA has been heavily criticized for the slow pace of cleanups at CERCLA sites, with some contending that the growing backlog of unremediated sites may overwhelm the program (Guerrero, 1991). In response, the EPA has developed the Superfund Accelerated Cleanup Model and accompanying documents to guide site managers in expediting the cleanup process (EPA, 1992a,b,c,e,f,g). The accelerated cleanup model encourages immediate actions to reduce hazards and prevent the further spreading of contamination even before the parties agree on the final cleanup plan for the site. The guidance documents issued as part of this program recommend installation of a prototype pump-and-treat system to contain the contaminant plume as early as possible and collection of data and redesign of the prototype to meet long-term goals. Data collected during operation of the prototype system have the potential to substantially reduce the technical uncertainties associated with designing the full-scale remedy. Thus, the EPA's early action policies are an important component of its efforts to address the technical uncertainties of cleaning up hazardous waste sites. The committee strongly endorses the EPA's emphasis on early actions to contain contamination while site investigation and design of the full-scale cleanup system are under way. As this report has documented, the longer contamination remains underground and the further it spreads, the more difficult it is to clean up. Therefore, early action increases the likelihood of successful cleanup. The committee believes it is especially important to emphasize monitoring of early actions because monitoring data can reduce many technical uncertainties.

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Alternatives for Ground Water Cleanup The committee sees no technical constraints to immediate initiation of early actions. However, institutional, policy, and regulatory barriers may slow implementation. For example, some groups representing companies responsible for cleanup have identified as a key barrier the EPA's policy of requiring that private parties agree to implement the entire cleanup remedy all at once rather than allowing them to agree to the early action before agreeing to the full remedy (Diamond, 1991). These groups have suggested allowing responsible parties to agree to implement ground water remedial actions in phases, without a legally binding commitment to implement the later phases. A phased approach would encourage companies to agree to the early action without legal challenge because the amount of up-front resources involved would be smaller than for the full remedy. A phased approach would also allow time to identify all of the potentially responsible parties before any one party must agree to the final remedy. A possible drawback of such a phased approach is that it would increase the number of times site plans would have to be reviewed and approved, potentially increasing the burden on regulators and transaction costs for the government and private parties. Pilot tests would be necessary to determine the feasibility of a phased approach to deciding on cleanup remedies. DNAPL Policy As explained in Chapters 2 and 3, one site characteristic that interferes with reaching health-based cleanup goals is the presence of DNAPL contaminants. Because many of the most common contaminants are DNAPLs, the EPA focused on the DNAPL problem before it addressed other site complexities and has developed a specific technical policy to address sites with DNAPLs. The policy is not explicitly reflected in either the law or regulations but rather appears in recent EPA policy statements and guidance documents (Clay, 1992; EPA, 1991a,b). Through these documents, the EPA explicitly recognizes that attaining health-based standards may currently be infeasible at certain types of CERCLA and RCRA sites with DNAPL contaminants. The EPA's policy on sites with DNAPLs is supported to a great extent by the committee's technical review. The policy acknowledges the difficulty inherent in cleaning up DNAPL sites and the critical importance of proper site characterization and early action to stop contaminant migration. It also recognizes that it may not be possible to restore all ground water at sites with DNAPLs and that separate approaches may be needed for the dissolved plume emanating from the DNAPLs, which can be cleaned up in some situations, and the DNAPLs themselves, which

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Alternatives for Ground Water Cleanup generally cannot be cleaned up with current technology. However, although the EPA's DNAPL policy is generally sound, the committee has three concerns about this policy. The first concern is that the DNAPL guidance documents do not adequately acknowledge the difficulty of locating DNAPLs. The agency's guidance states that ''if planned from the beginning, collection of this information can be combined with other efforts such that investigation costs and time frames should not be greater than current levels, for most sites'' (Clay, 1992). However, the committee believes that DNAPL investigations may require more time and effort, depending on the cleanup goals for the site, because they may require more subsurface sampling and more analysis of the samples. Despite this concern, the committee supports the EPA's decision to require expanded DNAPL investigations because the additional information will facilitate selection of an appropriate remedial action. What level of investigation is appropriate depends on the complexity of the site and the objectives for the treatment system. The committee supports the EPA's effort to develop rules of thumb based on site records and types of contaminants to estimate the likelihood of DNAPL contamination (see, for example, Cohen and Mercer, 1993). The committee's second concern is that the DNAPL policy is not sufficiently explicit in addressing the issue of cleanup time. Current methods for predicting cleanup time are likely to underestimate the time because they typically rely on chemical fate and transport assumptions that do not apply in DNAPL situations, as explained in Chapter 3. Although the additional information gathered during DNAPL investigations may provide a more reliable basis for estimating cleanup time, the committee believes that the state-of-the-art of time prediction is still inadequate and is unlikely to be accurate. Agency guidance should explicitly state these uncertainties and, if possible, whether the uncertainties are likely to re-suit in overestimated or underestimated cleanup times. The committee's third and most important concern relates to the approach used to demonstrate technical impracticability at sites with DNAPLs. In practice, EPA regulators generally require an attempt to achieve health-based cleanup goals and allow establishment of less stringent cleanup goals only after the implemented system fails to achieve the initial cleanup goals. This was perhaps the most difficult area of the application of existing DNAPL policy for the committee to evaluate. Although the committee sees value in ensuring that best possible efforts are employed to address DNAPL contamination, a requirement that a remedial action be designed to achieve the impossible (based on current technology) is counterproductive.

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Alternatives for Ground Water Cleanup Technical Impracticability Policy As result of the growing evidence that reaching health-based ground water cleanup standards may be technically impracticable at a large number of sites, in 1993 the EPA developed a guidance document specifying how to apply for waivers to ground water cleanup goals at CERCLA and RCRA sites (EPA, 1993b). The guidance document applies to all types of CERCLA and RCRA sites, not just those with DNAPLs. It outlines in detail the specific types of data that must be provided in a technical impracticability waiver application. According to the guidance document, the EPA anticipates that it will consider most technical impracticability applications only after operation of an interim or full-scale remediation system provides sufficient data to show that reaching the cleanup goals is not possible. In the committee's view, this guidance document represents an important step in addressing how to oversee sites where limitations of present technologies prevent the full achievement of ground water cleanup goals. However, the committee foresees major problems with implementing the guidance. First and most important, the guidance document is likely to create a regulatory log jam. The EPA estimates that 60 percent of Superfund sites have a medium to high likelihood of containing DNAPLs (EPA, 1993a). Because of the difficulty of cleaning up DNAPLs and because other site complexities in addition to DNAPLs may prevent achievement of health-based ground water cleanup goals, more than half of the sites in the Superfund program might be eligible for technical impracticability waivers. Each site will require a highly detailed evaluation by EPA staff. More important, at most sites regulators require construction and operation of cleanup systems designed to reach technically infeasible goals before granting a waiver, a practice that is likely to significantly slow progress in the CERCLA and RCRA corrective action programs. Second, the guidance document is both too restrictive and not restrictive enough in its consideration of appropriate cleanup goals. It will deny any interim goal modification for the large majority of sites where present technology cannot achieve health-based standards. Rather, owners of these sites may expend large sums proving that they cannot achieve the health-based standards with present technology. On the other hand, once the money is spent to define the limits of today's technology, the goal is waived. Even if technology capable of meeting the health-based goals is developed in the future, there are no explicit requirements to apply the new technology. This situation creates a disincentive to develop improved technology that could lead to the denial of future impracticability waivers. The problems with the technical impracticability policy arise from

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Alternatives for Ground Water Cleanup inadequate recognition of the large number of sites where technical limitations may prevent complete cleanup within the foreseeable future. The current policy appears to rest on the assumption that there will be a small number of sites where cleanup is impracticable and that the majority of sites will not require a detailed technical impracticability evaluation. It thus divides sites into two groups: those that can be cleaned up and those for which cleanup is infeasible. To address the problems the committee foresees with this policy, the committee recommends a new model including three—rather than two—groups of sites. Table 7-1, adapted from Chapter 3, shows these three groupings, which are as follows: Group A: At sites in group A, full-scale cleanup systems would be installed to reach health-based goals. Cleaning up these sites should be relatively straightforward, and consideration of technical impracticability should not be required. An example of this type of site is one contaminated with gasoline components released through a very small leak in an underground storage tank. As shown in Table 7-1, sites in this group have rating of I for difficulty of cleanup according to the system used in Chapter 3. Group B: At sites in group B, cleanup may or may not be possible, and whether health-based goals can be reached should be established in phases. In the first phase, the sources of contamination should be contained and the plume of dissolved contaminants should be cleaned up. In the second phase, the possibility of removing some of the contaminant mass from source areas should be considered (although the committee does not view maximizing the pumping rate to remove mass from source areas as an efficient removal method). In the third phase, data should be gathered to determine whether attainment of ground water cleanup goals is feasible with existing technology. If not, interim cleanup objectives should be established for the site, prior to implementation of a full-scale remedy. These interim objectives should supersede the long-term, health-based cleanup goals and should be based on the capabilities of technology. Periodically, the EPA should assess whether a new technology could attain the health-based goals. As shown in Table 7-1, sites in group B have a rating of 2 or 3 for difficulty of cleanup according to the system used in Chapter 3. Group C: At sites in group C, cleanup will most likely be infeasible with current technology. These sites warrant immediate consideration for infeasibility waivers with the concomitant selection of a new protective long-term goal. At these sites, the plume of dissolved contaminants should be cleaned up, contaminant mass should be removed from source areas to the extent practicable, and remaining contaminant sources should be contained. However, the requirement to clean source areas to health-

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Alternatives for Ground Water Cleanup TABLE 7-1 Categories of Sites for Technical Infeasibility Determinations   Contaminant Chemistry Hydrogeology Mobile, Dissolved (degrades/ volatilizes) Mobile, Dissolved Strongly Sorbed, Dissolved (degrades/ volatilizes) Strongly Sorbed, Dissolved Separate Phase LNAPL Separate Phase DNAPL Homogeneous, A A B B B B single layer (1) (1-2) (2) (2-3) (2-3) (3) Homogeneous, A A B B B B multiple layers (1) (1-2) (2) (2-3) (2-3) (3) Heterogeneous, B B B B B C single layer (2) (2) (3) (3) (3) (4) Heterogeneous, B B B B B C multiple layers (2) (2) (3) (3) (3) (4) Fractured B B B B C C   (3) (3) (3) (3) (4) (4) NOTE: Shaded boxes at the left end (group A) represent types of sites for which cleanup of the full site to health-based standards should be feasible with current technology. Shaded boxes at the right end (group C) represent types of sites for which full cleanup of the source areas to health-based standards will likely be technically infeasible. The unshaded boxes in the middle (group B) represent sites for which the technical feasibility of complete cleanup is likely to be uncertain. The numerical ratings indicate the relative ease of cleanup, where 1 is easiest and 4 is most difficult.

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Alternatives for Ground Water Cleanup based standards should be permanently waived. An example of this type of site is one where large amounts of chlorinated solvents have lodged in fractured bedrock. As shown in Table 7-1, sites in this group have a rating of 4 according to the system used in Chapter 3. The classification scheme shown in Table 7-1 is one approach to dividing sites into the three groups. The committee recognizes that it is not a perfect scheme. For example, continued observation of some sites in group B might indicate that they, like sites in group C, warrant consideration for technical impracticability waivers. On the other hand, at other sites in group B, continued observation may show that reaching cleanup goals is feasible, just as at sites in group A. In a more detailed scheme additional factors, as well as a broader range of classifications, might be considered. The committee leaves to the appropriate agencies, private sector, public interest community, and consensus standard setting groups the determination of an optimal classification scheme for identifying the types of sites that should be included in each of the three groups. Finally, the committee believes strongly that one cannot prescribe an absolute rule concerning the infeasibility of attaining ground water cleanup goals given the wide range of conditions and cleanup objectives that exist at different sites. Such classification schemes, although useful, cannot be rigidly or mechanically applied. Classification schemes must retain considerable flexibility and still must be applied on a site-by-site basis using sound scientific judgment. Nevertheless, the committee believes that a classification scheme such as the one proposed above is technically justified and would significantly improve the degree to which ground water cleanup policy reflects the capabilities and limitations of technology. Programs For Innovative Technology Development As explained in Chapter 4, numerous barriers have discouraged the development and use of innovative ground water cleanup technologies. These barriers are interfering with the ability to increase the likelihood of reaching health-based cleanup goals. Although the EPA and other agencies are implementing programs to develop innovative technologies, the committee believes that strong economic incentives are needed to encourage innovation. To create economic incentives to use innovative technologies, the committee suggests pilot testing the concept of requiring an annual "infeasibility fee" at every site where the requirement to attain health-based cleanup goals has been deferred or waived. The fee would be paid by

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Alternatives for Ground Water Cleanup responsible parties at the sites. The annual cost it would create would encourage development and use of new and more effective technologies that would eliminate the need to pay the fee. The fee could be proportional to the size of the unmitigated problem, or it could be a fixed fee per responsible party per site, or it could be determined in some other fashion. In any case, the fee must be large enough to encourage innovative technology development while being lower than the cost of pumping and treating at a high rate. The funds collected from the infeasibility fee could be pooled into an applied ground water research fund. One portion of the fund could be used for field research, and the other portion could be used to create an economic incentive for implementing innovative technologies. Responsible parties often hesitate to use innovative technologies because they are still responsible for implementing—and paying for—a conventional pump-and-treat system as a backup if the innovation fails. If responsible parties could recoup some of these losses through the infeasibility fund, they would have a greater incentive to try new technologies. Responsible parties could apply to a special ground water advisory panel (discussed later in this chapter) for approval to use the innovative technology fund. The advisory panel would approve use of the technology only if it was likely to achieve the specified cleanup objective. If the technology failed to achieve the goals, the responsible party would receive money to cover its research costs. If the technology worked, the responsible party would not receive payment but would receive the benefit of having its liability for the site eliminated because the site would be cleaned up. The infeasibility fee approach has several advantages. First, it is consistent with the "polluter pays" principle, without being punitive or requiring restoration of ground water that cannot be cleaned up using existing technology. It makes more explicit the cost of actions that contaminate ground water and would therefore foster better corporate decisionmaking. Second, even if there is disagreement over the appropriate goal for ground water cleanup or with the imposition of a fee on industry, in the long run such an approach provides benefits to the private sector. Over time, the applied ground water research that the fund would support is likely to lower the cost of ground water remedial actions at all sites. Third, the approach offers a cost-effective mechanism for pooling industry's resources. The use of federal, state, and private sector partnerships would add to the cost-effectiveness of this method of funding applied ground water research. The committee analyzed only the broadest outlines of this scenario. Detailed economic analyses would be needed prior to the creation of an infeasibility fee for sites where ground water cleanup is technically impracticable.

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Alternatives for Ground Water Cleanup IMPLEMENTATION OF POLICIES The four types of EPA policies described above, although literally applicable only to CERCLA and RCRA sites, are likely to guide other parts of the EPA, other government agencies, and private companies in making similar determinations. Therefore, it is extremely important for the long-term effectiveness of the nation's ground water cleanup programs that these policies present a manageable approach for addressing all types of site complexities documented in this report. In addition to the specific suggestions for improving the policies described above, the committee has additional suggestions related to the broad implementation of policies for managing sites where the ability to achieve health-based ground water cleanup goals is uncertain. Broad And Equivalent Application of Policies To All Sites The committee is concerned about inconsistencies in the application of ground water cleanup policies at different sites. Such inconsistencies can occur because policy implementation is not closely monitored and is highly dependent on the knowledge of the personnel overseeing the site. Inconsistencies can also occur because of the different statutes, regulations, and guidance documents governing different sites. For example, some state agencies have adopted background contaminant levels as the goal of all ground water remedial actions, while other states use drinking water standards. Regardless of who manages the site, and regardless of the statutes and regulations involved, the approach to addressing the impracticability of attaining cleanup goals should be consistent from site to site. Vigorous Efforts to Ensure That New Guidance is Applied at The Site Level Once EPA headquarters issues a new guidance document, a determined effort must be maintained to ensure that site-level project managers are aware of it and that there are no hidden disincentives to implementing it. This type of effort might include meetings and training courses. It might also require revising performance criteria for the personnel overseeing the sites. For example, if there are time limits for completing remedial investigations that make it difficult to characterize a site adequately, it is unlikely that revisions to the remedial investigation guidance calling for more complete site investigations will change staff personnel behavior. The EPA is already making progress in this area, for

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Alternatives for Ground Water Cleanup example by presenting technical seminars to explain the guidance document on demonstrating technical impracticability of achieving cleanup goals. Such efforts should continue. Continuous Program Evaluation Additional effort is needed to evaluate the successes and failures of ground water cleanup under the various programs. Although the EPA's 1992 review of 24 pump-and-treat systems (see Chapters 1 and 3) was a good start at evaluation, a larger data base of sites is needed to assess the success of cleanup programs. Continuous evaluation of sites where clean-ups are under way would require a more rigorous program for implementation oversight. The results of the oversight would allow the EPA to continuously improve its implementation guidance documents, its reference case examples, and its training programs. Such a program evaluation process should involve input from EPA program managers, expert scientists, and stakeholders at the site (including citizens and responsible parties). Routine Use of Scientific Experts The availability of interdisciplinary scientific expertise within the EPA and other agencies is currently insufficient to evaluate the multitude of complex hazardous waste sites. Decisions at complex sites could benefit from additional scientific expertise. While not a substitute for hiring and retaining technically trained staff, the technical expertise available to the agencies could be enhanced by creating several independent multi-disciplinary scientific ground water advisory panels. The panels could provide advice at CERCLA, RCRA, federal facility, state, and possibly private sector sites. The details of how to organize such advisory panels would need to be carefully worked out. Several advisory panels could be created on a regional basis, based on the number of complex sites in the region. Alternatively, the panels could be set up on a national level. Inclusion of experts from outside the EPA in addition to top EPA technical staff would enhance public confidence in the panels as providers of unbiased advice. Panels could include experts from other federal and state agencies, academia, and private consulting firms. The EPA could select panelists using criteria similar to those used to select the agency's Science Advisory Board. The members would need to possess special expertise (as opposed to the more general qualifications of the typical cleanup project manager). Strict adherence to conflict-of-interest rules would be necessary.

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Alternatives for Ground Water Cleanup These advisory panels would be consulted as early as possible, preferably during the field investigation stage. The same panel would be consulted throughout implementation of the remedy and could answer questions concerning the feasibility of achieving technical goals. Panels could also provide advice for sites where cleanup is currently under way and significant difficulties have been encountered. The panelists' advice would be limited to technical issues, as opposed to policy or risk management issues. For example, the panel might confirm the validity of a proposed conceptual model of the site, whether DNAPLs are present, the likelihood that an exposure pathway exists, the feasibility of attaining a specific cleanup goal, whether a remedial action alternative is effective, whether cost estimates of a remedial alternative are credible, and whether the design of the monitoring plan is effective. The types of policy-related issues that would not be addressed by the advisory panel include questions such as what ground water remedial action goal should be selected or what remedy should be selected. The panels might also be used for technical "appeals" by responsible parties or local citizens who disagree with the regulatory technical staff. 2 Development of A Mechanism For Long-Term Site Management Currently the nation lacks institutional mechanisms for long-term management of sites where health-based cleanup goals cannot be achieved with existing technologies. This report has shown that cleanup at many sites will not occur until new technologies are developed, if ever. The threat posed by the potential of exposure to ground water contamination will remain for a very long time at many sites, even with use of the best available technology. Therefore, a lasting institutional structure is necessary to monitor the long-term performance of the containment systems that will be needed to prevent contaminant migration and to restrict public access to the contaminated water until new technologies emerge for cleaning up the sites. The long-term effectiveness of any technical impracticability policy will depend on an institutional maintenance mechanism. SUMMARY OF POLICY RECOMMENDATIONS In summary, the committee believes that the EPA is making considerable progress in developing policies to address the fact that existing technologies may be unable to achieve current ground water cleanup goals at many sites. Nevertheless, improvements are needed in these policies to manage the large number of sites where technical limitations

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Alternatives for Ground Water Cleanup may present problems, to encourage wider use of innovative technologies, to assure consistent application of the policies, and to provide greater understanding of the factors preventing achievement of cleanup goals. Following are the committee's specific policy recommendations, developed from the committee's review of the policies discussed in this chapter in light of the technical limitations documented throughout this report. Recommendation 1: The committee recommends that in evaluating whether ground water cleanup is technically feasible, the EPA (and other agencies) categorize contaminated sites into three groupings corresponding to the complexity of the site. For sites in the first group (group A in Table 7-1), health-based ground water cleanup goals should be achievable with current technology. For sites in the second group (group B in Table 7-1), attainment of health-based goals may be difficult or unlikely with current technology but not necessarily impossible over the long term. Sites in this group would require an interim infeasibility process in which the long-term cleanup goal would be temporarily replaced—prior to construction of a full-scale cleanup system—with interim objectives reflecting the capabilities of existing technologies. On a regular basis, these sites would be reviewed to determine whether improved technology could achieve the long-term health-based goals. For sites in the third group (group C in Table 7-1), restoration to health-based standards is highly unlikely in reasonable time frames (decades). These sites would likely warrant permanent infeasibility waivers with the concomitant selection of a new protective long-term goal. At sites that receive infeasibility waivers or interim cleanup objectives, it is extremely important to recognize that cleanup of part of the contaminated area may be possible with existing technologies. The technical limitations often apply only to limited areas, such as those where significant quantifies of contaminants are present as nonaqueous-phase liquids or as metal precipitates. Thus, the waiver or the interim objectives must account for the different levels of cleanup possible in different zones of the site. Recommendation 2: Although the committee recognizes that different agencies must operate under different authorities, all regulatory agencies should recognize that ground water restoration to health-based goals is impracticable with existing technologies at a large number of sites. The EPA and other regulatory agencies should work cooperatively to establish consistent mechanisms for deciding when cleanup is technically

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Alternatives for Ground Water Cleanup impracticable, whether revised long-term goals are warranted, and whether a phased cleanup process is appropriate. The complexities and limitations described in this report are a function of the nature of the contaminants and the hydrogeology of the site, not the identity of the agency or private party attempting to address the problem or the statutory authority or regulatory agencies involved. Recommendation 3: The committee recommends that the EPA prepare new guidance documents that will lead to improved optimization of the hazardous waste site characterization process and explicitly address factors that will determine whether health-based cleanup goals are practicable. The EPA should revise existing site characterization guidance for the Superfund and RCRA programs to ensure that factors influencing whether cleanup goals are achievable are addressed as early as possible. If the complexities of a site are not taken into account in the earliest stages of site investigation (for example, during the remedial investigation and feasibility study stages), the remedy selected could be inadequate, contaminant containment could be delayed or not achieved, and/or significant investigation and remedial costs could be wasted. Recommendation 4: For complex sites, the committee recommends that government and private entities use expert panels to evaluate site characterization, remedy selection, and remedy performance. At present, federal and state regulatory agencies have an insufficient number of technically trained staff to address the multitude of complex sites. While not a substitute for hiring and retaining technically trained staff, ground water advisory panels could provide guidance in addressing the often difficult technical choices at these sites. Funding for the advisory panels could come from Super fund or from the new infeasibility fee fund discussed in Recommendation 7, below. The EPA could also establish a user fee system to cover advisory panel involvement. The EPA or the lead regulatory agency would decide when to convene an advisory panel. However, interested private parties or the public could request help from or technical appeal to a panel. Recommendation 5: The committee recommends that the EPA establish a standardized, centralized, broadly accessible repository for site information. At present, it is virtually impossible to access the large amount of existing site data from completed and ongoing ground water remediation projects. The committee was confronted with this dilemma as it tried to examine existing data in order to identify patterns of behavior

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Alternatives for Ground Water Cleanup and potential recommendations. The committee believes that the EPA can facilitate a solution in two ways. First, the EPA could develop suggested formats for collection and analysis of site-specific information. The current lack of standard formats often leads to inadequate monitoring at sites because it is unclear what information is necessary to document problems or progress. Second, the EPA could establish an easily used, publicly accessible repository for site data. Such a data base would greatly facilitate the agency's own analyses and would enhance the public debate concerning ground water cleanup. The committee is not recommending the inclusion of all data from each site in a single data base; rather, the committee recommends that the data base include a brief description, data summary, and contact person for each site. Recommendation 6: The committee recommends that the EPA systematically evaluate its experience in cleaning up sites to improve understanding of factors that prevent achievement of health-based cleanup goals. Given its relatively long history compared to other ground water cleanup programs, the Superfund program has the potential to provide valuable centralized data on the performance of existing systems under a wide range of conditions. However, since its inception, Superfund has been implemented in a decentralized manner through the ten EPA regional offices. Consequently, data are not systematically collected across regions for review and evaluation. Because site-specific cleanup experience is rarely submitted for publication in peer-reviewed technical journals, it is especially important for the EPA to take the lead in gathering, assessing, and summarizing the information being generated at Super-fund sites to better understand current capabilities of ground water cleanup systems and to identify key areas for future research. While there are several ways to centralize data collection, the committee suggests that each EPA project manager develop a summary similar to those in the agency's recent study of pump-and-treat systems at 24 sites (EPA, 1992d). The project manager would update the summary as needed. On a regular basis, the EPA could publish technical findings developed from a careful review of all the summaries. Recommendation 7: The committee recommends that Congress investigate the possibility of charging an annual ''infeasibility fee'' to public and private responsible parties at sites where attaining health-based standards is not presently feasible. Congress could investigate various options for appropriating the funds collected from this fee. The committee sees two options as having special merit. One possibility is to use part of the funds to create an

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Alternatives for Ground Water Cleanup applied ground water research fund to pay for a strong research program for improved ground water cleanup techniques. The other possibility is to use some of the funds to encourage use of innovative cleanup technologies by reimbursing responsible parties for testing these technologies in certain circumstances. Under this scheme, the expert panel responsible for providing technical guidance at the site (see Recommendation 4) would approve use of an innovative technology. In the event that the innovative technology fails to achieve its intended goal and the responsible party is required to construct a backup technology, the responsible party would be able to recoup some or all of its losses from the infeasibility fee fund. If the innovative technology worked, the fund would not subsidize the project. Initially the fund might apply only to Superfund sites, but if successful it might be extended to other types of sites. Recommendation 8: The committee recommends that the EPA expand its efforts to inform the public about the limitations of existing technologies and the ability of innovative technologies to improve cleanup efforts. From the perspective of the affected public, the Superfund program has had limited success in responding to community concerns at many sites. This problem can in part be attributed to inadequate explanations about fundamental physical limitations of cleanup as well as unfounded optimistic promises about the likely pace or extent of site cleanup. Although the ground water cleanup problem is technically complex, the implications of site complexities as well as the promise that innovative technology holds to improve cleanups can and should be readily explainable to the general public. If the public is honestly informed of current capabilities and limitations of technology, it is more likely to participate as a constructive participant in subsequent site cleanup decisions. The committee believes that early site-specific public meetings, perhaps during initial scoping sessions, could provide key information to the public. The EPA should include expanded efforts at community relations within the technical impracticability waiver process or should revise its Super-fund community relations guidance documents to address issues of technical impracticability. Recommendation 9: The committee recommends that the EPA and other agencies identify and eliminate disincentives to early implementation of ground water remedial actions. An example of a policy that might eliminate disincentives to early action is one that would allow responsible parties to commit to only one phase of cleanup at a time instead of requiring them to agree to the entire remedy all at once. Such a policy might encourage more responsible

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Alternatives for Ground Water Cleanup parties to agree to early actions and might eliminate some of the legal battles that often ensue during the remedy selection phase. However, it might also increase transaction costs. The EPA should pilot test this concept to determine whether it results in faster cleanups or whether it slows the process because of the added regulatory burden. Recommendation 10: The committee recommends that the EPA assess and develop guidance on institutional strategies for preventing public exposure to contamination over the long term at sites where reaching health-based cleanup goals is infeasible with present technologies. An institutional structure capable of lasting for several generations will be needed to oversee the large number of sites at which complete cleanup is infeasible with current technologies. This institutional structure must include two components: (1) a long-term "memory" to ensure that the public remains aware of the risk posed by the site and (2) a long-term scheme for monitoring the site to ensure that the contamination is not spreading. While offering specific guidance on an approach for long-term maintenance is beyond the scope of this report, the importance of long-term maintenance to prevent public exposure to contamination in the future cannot be overemphasized. NOTES 1.   The Corrective Action Rule has not yet been finalized, primarily because of a presidential executive order issued during the Reagan administration requiring the EPA to assess economic impacts of all major regulations. However, RCRA site cleanups are being implemented today through the permit and enforcement order provisions of RCRA. 2.   The EPA's current appeals process essentially consists of appealing to the supervisor of the person with whom one disagrees. REFERENCES Clay, D. R. 1992. Considerations in Ground-Water Remediation at Superfund Sites and RCRA Facilities—Update. Directive 9283.1-06. May 27,1992. Washington, D.C.: EPA, Office of Solid Waste and Emergency Response. Cohen, R. M., and J. W. Mercer. 1993. DNAPL Site Evaluation. Boca Raton, Fla.: C. K. Smoley. Diamond, B. 1991. Limiting Lead Transfers to Private Parties During Discrete Phases of the Remedial Process. Directive 9800.1-01. November 14, 1991. Washington, D.C.: EPA, Office of Solid Waste and Emergency Response. EPA (Environmental Protection Agency). 1991a. Fact Sheet: ARARs Q's and A's—General Policy, RCRA, CWA, SDWA, Post-ROD Information, and Contingent Waivers . No. 9234.2-01/FS-A. Washington, D.C.: EPA, Office of Solid Waste and Emergency Response. EPA. 1991b. Guide to Developing Superfund No Action, Interim Actions, and Contingency Remedy RODs. No. 9355.3-02/FS-3. Washington, D.C.: EPA, Office of Solid Waste and Emergency Response.

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Alternatives for Ground Water Cleanup EPA. 1992a. Assessing Sites Under the Superfund Accelerated Cleanup Model. No. 9203.1-051. Washington, D.C.: EPA, Office of Solid Waste and Emergency Response. EPA. 1992b. Early Action and Long-term Action Under SACM. No. 9203.1-051. Washington, D.C.: EPA, Office of Solid Waste and Emergency Response. EPA. 1992c. Enforcement Under the Superfund Accelerated Cleanup Model (SACM). No. 9203.1-051. Washington, D.C.: EPA, Office of Solid Waste and Emergency Response. EPA. 1992d. Evaluation of Ground-Water Extraction Remedies: Phase II, Volume 2, Case Studies and Updates. Publication 9355.4-05A. Washington, D.C.: EPA, Office of Emergency and Remedial Response. EPA. 1992e. Identifying SACM Program Management Issues. No. 9203.1-051. Washington, D.C.: EPA, Office of Solid Waste and Emergency Response. EPA. 1992f. Regional Decision Teams. No. 9203.1-051. Washington, D.C. : EPA, Office of Solid Waste and Emergency Response. EPA. 1992g. Superfund Accelerated Cleanup Bulletin: Presumptive Remedies. No. 9203.1-021. Washington, D.C.: EPA, Office of Solid Waste and Emergency Response. EPA. 1993a. Evaluation of the Likelihood of DNAPL Presence at NPL Sites. EPA/540/R-93-073. PB93-963343. Springfield, Va.: National Technical Information Service. EPA. 1993b. Guidance for Evaluating the Technical Impracticability of Ground-Water Restoration. Directive 9234.2-25. Washington, D.C.: EPA, Office of Solid Waste and Emergency Response. Guerrero, P. F. 1991. Superfund: issues that need to be addressed before the program's next reauthorization. Testimony before the Subcommittee on Investigations and Oversight, Committee on Public Works and Transportation, U.S. House of Representatives, October 29, 1991. GAO/T-RCED-92-15. Washington, D.C.: General Accounting Office.

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