Determining Cleanup Standards for Hazardous Waste Sites

AuthorMajor William D. Turkula
  1. Introduction

    With the impending closures or realignments of military bases nationwide, both private and public parties recognize the problems incident to the private resettlement of formerly publicly held lands. In particular, installations that had unique military missions may manifest environmental problems that, while tolerable when balanced against the paramount necess,. ties of maintaining national security, are impossible to reconcile with traditional private and commercial uses. Consider the hauntingly analogous case of Sandra DeVantier who, on KO-vember 28, 1990, moved into a newly purchased house in the Love Canal neighborhood of Albany, New York.' Buying a house usually is a pretty ordinary event, but Ms DeVantier moved into a neighborhood that was so polluted by hazardous waste2 that it served as a nom de weme, or rallying cry to clean up the environment Can Love Canal now be looked to as an example of a successful environmental cleanup effort? This question, at least at present, appears to remain unanswered Similarly, how clean must a military installation be before the federal government can retrocede its ownership to the state or to private parties, also is controversial.

    .Judge AhmBte Generars Carp3 United Sfafen Army Reserves B A , 1873, Lnlrer. bit) of Smfh Dakota J 0,

    1981, Enlverrlfy al Sorfh Dakota Lar School LL M IWl. ace General's School Preiioui works include Dn:o A\D .

    July lSS7, at 46 Thie article 13 based won a Ise~rali~nthat the author submitred fa sarisf) I" pwt. the degree

    'Slli~erman, Resettlement of Laie Canal Be8ms. But Banks Sour on \larfgages. 21 requiremmri of the 30th Judge Adwcate Officer Graduate Course

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    itill are trying block resettlement of the are% Id

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    Whether or not buying property in Lore Canal. or on land that previously was an impact area, as a prudent investment ISan individual choice. The response from mortgage lenders, however, has been less than enthusiastic.i The Del'antier purchase, for instance, was for cash, underscoring mortgage lenders' reluctances to finance purchases of properties at the infamous site. John Blyth, Chairman of the Xew York Bar As-sociation's Real Property Law Section was reported as saying, "banks and secondary lenders are becoming increasingly wary about making loans on properties with an environmental problem."; Some of the lenders' reluctances are undoubtedly caused by the opposition to resettlement of areas like Love Canal by environmentalists. In a recent article, one commentator stated that Love Canal may be a negative-not positir'e-example for environmental cleanup The author stated,

    Environmentalists have long opposed the resettlement of Love Canal, contending that the area is still not safe and that the habitability study was based on faulty methodology They also fear that resertlement of Love Canal would set a dangerous precedent for other superfund [sic] sites. establishing a new-and inadequate-standard for safety.'

    The Comprehensive Environmental Response, Compensation. and Liability Act (CERCLAIS was designed to deal with so-called Superfund sites such as Love Canal. Among other things, section 121 of the Acte describes the cleanup standards applicable to a hazardous waste site under the Superfund definition.'O The statute itself does not spell out what constitutes an acceptable or safe level of contamination, It does, however, prescribe that applicable federal and state standards will be used to determine things such as the amount of lead in water or the soil. These standards generically are called applicable or

    relevant and appropriate requirements (ARARs)." They can include air emissions, water quality, soil percolation levels, movements of hazardous materials, and containments of concaminants.'i Section 121 of CERCLA is the longest section of the statute and contains very broad, as well as many specific, requirements for removal of hazardous substances or for the treatment of others that may fall under the statute's purview

    The degree of cleanup required under CERCLA for a given site is described in section 121(d) as

    Remedial actions selected under this section or otherwise required or agreed to by the President under this chapter shall attain a degree of cleanup of hazardous substances, pollutants, and contaminants released into the environmenc and of control of further release at a minimum which assures protection of human health and the environment. Such remedial actions shall be relevant and appropriate under the circumstances presented by the release or threatened release of such substance, pollutant, or contaminant.I3

    The "relevant and appropriate" language of the statute is the source of the ARAR acronym. Although the term is inherently vague, it serves as an economical way to refer to the plethora of laws and regulations that may apply to a site cleanup. The United States Court of Appeals for the Tenth Circuit recently defined an ARAR succinctly as whatever cleanup standards the Environmental Protection Agency decides are applicable under a remedial cleanup plan."

    A. CERCLA and Other Federal Legislation

    Legislation regarding cleaning up the environment from pollution and contamination caused by man exploded in the 1970's and early 80's The Solid Waste Disposal Act has been on the books-as amended by the Resource Conservation and Recovery Act (RCRAI-since 1976, but Congress realized that

    legislation alone feil short of the requirements to deal with what we had learned to be hazardous and toxic wastes.18 In simple terms, as the title of the statute implies, the Act is a regulatory mechanism for the safe disposal of solid waste, as defined by the statute As Lave Canal graphically demonstrated, we no ionger can simply dig a hole and bury our waste without fear of future consequences. Making sure we do not create future environmental messes by our means of waste disposal, however. does not deal with the vexing problem of cleaning up the already contaminated sites all over the country.

    While RCRA sets standards for regulating the handling toxic or hazardous u'astes. the "big stick" for cleaning up dangerous environmental sites fails under the broad scope of CERCLA and the Superfund " The fundamental difference between RCRA and CERCLA 1s that CERCLA is designed to target and fund the cleanup of areas that already are contaminated, whereas RCRA IS better viewed as a regulatory mechanism to avoid creating the same kmds of problems in the future The corrective action requirements of RCRA, however, which re. quire present aaste generators and handlers to take corrective action for disposal methods used in the past, can cause some confusion.1a

    A good deal of confusion also surrounds the interplay of the RCRA and CERCLA statutes. A good discussion of that interplay and differences between the statutes is found in The Environmental Law Handbook of 1989 published by Government Institutes, Inc.'' The authors note that the EPA, when replying to information requests, provides a schematic drawing show ing a circle labeled as RCRA surrounded by a larger and con. centric circle labeled CERCLA.'" The obvious implication that RCRA IS somehow consumed by CERCLA is not entirely accurate. The key to the breadth of CERCLA is that. unlike RCRA, which regulates uaste," CERCLA covers any substance that falls within the broad purview of CERCLA's hazardous sub-

    stance definition.2s The Code of Federal Reguiations section listing of presently identified "hazardous substances" under CERCLA has more than 700 entries and can be changed as the agency deems necessary zs Other substances that may not be on the list can include any other substance that reasonably can be determined to cause harm.24 Therefore, just because a substance is not on the EPA's hazardous substance list does not mean IC could not potentially be regulated under CERCLA. The concentric circle diagram offered by EPA to demonstrate the relationship between RCRA and CERCLA is overly simplistic, however, and conflicts between the statutes and their appiications persist.

    B. State Legislation

    The federal government is not alone in setting standards for environmental cleanup. Each state has some form of regulatory scheme dealing with creating or maintaining a clean environment.lj These laws can be based on federal RCRA or CERCLA standards, or legislation peculiar to a particular state.28 Sot surprisingly, the laws are not all the same and some may conflict or overlap with their federal counterparts. Ail fifty states have some statutory provision for dealing with hazardous wastes Not all the statutes are of recent vintage or in response to federal environmental cleanup programs, such as CERCLA or RCRA The State of Washington, for instance, enacted a statute in 1909, making it unlawful to "deposit, leave or keep" any "unwholesome substance" on land or waters in the state.28

    Some states also have established environmental statutes that are different from, more restrictive than, or more demanding than federal standards These srate laws have come in conflict with the federai government's prosecution of

    cleanup campaigns.ze Colorado has been one of the most aggressive states In attempting to enforce stare cleanup standards which may differ from federal requirements under CERCLA In the case of Colorado 1.

    Idarado Mining Colorado challenged the EPA's cleanup program by insisting that the state's remedial plan far cleanup of mine tailings should be enforced over the EPA-selected remedies 31 One issue addressed by the court in that case was whether or not the federal government can control remedial cleanup action under section 121 of CERCLA, or whether section 121(e)(2) of the statute allowed the state independently to select a cleanup plan.32 The court, in essence, said that the remedial action plan mentioned in CERCLA is one selected by the federal government or its delegates-not one selected by the The court went on to say...

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