9.2 CERCLA Superfund Process & RCRA Corrective Action

CERCLA Superfund Process & RCRA Corrective Action

When uncontrolled hazardous substance releases threaten human health or environmental ecosystems, federal statutory frameworks mandate rigorous, legally enforceable remediation pathways. The two paramount statutory mechanisms in the United States are:

1. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund (42 U.S.C. § 9601 et seq.), enacted in 1980 and amended by the Superfund Amendments and Reauthorization Act (SARA) of 1986.
2. The Resource Conservation and Recovery Act (RCRA) Corrective Action Program codified under RCRA §§ 3004(u)/(v) and 3008(h) and RCRA § 3004(u)/(v) & § 3008(h), addressing releases at active, permitted, or legacy hazardous waste Treatment, Storage, and Disposal Facilities (TSDFs).

Certified Hazardous Materials Managers (CHMMs) must navigate the liability provisions, evaluation criteria, remedial pipelines, and statutory cleanup standards governing both programs.

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1. CERCLA Statutory Liability & Potentially Responsible Parties (PRPs)

CERCLA is renowned for having the most sweeping and formidable liability structure in American jurisprudence. Under CERCLA § 107(a), liability is:

• Strict: Fault, negligence, or state-of-mind is irrelevant; liability is established solely by demonstrating that a release or threatened release of a hazardous substance occurred from a facility causing response costs.
• Joint and Several: Any single liable party can be held responsible for 100% of the total site cleanup costs, regardless of their relative volumetric contribution, unless that party can prove divisibility of harm (which is extraordinarily rare).
• Retroactive: Liability applies to acts and disposals that occurred decades prior to the enactment of CERCLA in 1980.

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|              THE FOUR CLASSES OF POTENTIALLY RESPONSIBLE PARTIES (PRPs)     |
|                                                                             |
|   [1] CURRENT OWNER OR OPERATOR                                             |
|   - Current fee-title owner or active facility operator of the facility.   |
|                                                                             |
|   [2] PAST OWNER OR OPERATOR AT TIME OF DISPOSAL                            |
|   - Any entity that owned or operated the site when hazardous substances    |
|     were disposed of, spilled, or placed on site.                           |
|                                                                             |
|   [3] GENERATOR / ARRANGER                                                  |
|   - Any person who arranged for disposal, treatment, or transport of        |
|     hazardous substances owned or possessed by them to the facility.        |
|                                                                             |
|   [4] TRANSPORTER                                                           |
|   - Any person who accepted hazardous substances for transport to a site    |
|     selected by the transporter.                                            |
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2. The Superfund Remedial Pipeline (NCP - 40 CFR Part 300)

The National Oil and Hazardous Substances Pollution Contingency Plan (NCP), codified at 40 CFR Part 300, establishes the formal administrative and engineering blueprint for Superfund cleanup operations:

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|                         THE 8-STAGE CERCLA SUPERFUND REMEDIAL PIPELINE                  |
|                                                                                         |
|   1. PA / SI   --> 2. HRS SCORING --> 3. RI / FS   --> 4. PROPOSED PLAN & PUBLIC COMMENT|
|   (Initial Site    (Score ≥ 28.5      (Delineate Plume    (30-Day Public Review         |
|    Inspection)      Qualifies NPL)     & Screen 9 Criter)  of Preferred Alternative)    |
|        |                                                                                |
|        v                                                                                |
|   5. ROD       --> 6. RD / RA     --> 7. O&M / CC  --> 8. NPL DELETION; 5-YR REVIEWS IF REQUIRED   |
|   (Record of       (Engineering       (Operate, Treat,    (Cleanup Complete; Five-Year  |
|    Decision)        Design & Build)    Inspect Systems)    Reviews if Waste Remains)    |
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Detailed Breakdown of NCP Pipeline Stages:

1. Preliminary Assessment / Site Inspection (PA/SI)

• PA: Low-cost desk review of historical records, site data, and migration pathways to determine if the site poses potential threats.
• SI: Targeted field sampling of media (groundwater, soil, surface water) to confirm release presence and target populations.

2. Hazard Ranking System (HRS) & National Priorities List (NPL)

• The Hazard Ranking System (HRS) is a mathematically structured, numerically scored assessment model evaluating the relative potential risk posed by a site across four migration pathways:
  1. Groundwater Migration Pathway (drinking water aquifer threats).
  2. Surface Water Migration Pathway (drinking water intakes, human food chain, sensitive aquatic environments).
  3. Soil Exposure and Subsurface Intrusion Pathway (direct contact, resident populations, vapor intrusion).
  4. Air Migration Pathway (atmospheric dispersion to population centers).
• The NPL Cutoff Score: An overall HRS score of $\text{HRS} \ge 28.5$ (on a 0–100 scale) qualifies the site for listing on the National Priorities List (NPL), making it eligible for long-term federal Superfund Trust Fund financing.

3. Remedial Investigation / Feasibility Study (RI/FS)

• Remedial Investigation (RI): Comprehensive field data collection to determine the nature, three-dimensional spatial extent, volume, and fate/transport of contamination, culminating in a Baseline Risk Assessment (BRA) quantifying cancer and non-cancer risks.
• Feasibility Study (FS): Development, screening, and detailed comparative evaluation of engineering cleanup alternatives against the Nine CERCLA Evaluation Criteria.

4. Proposed Plan & Public Comment Period

EPA drafts a Proposed Plan identifying the preferred remedial alternative and rationale. The agency provides at least a 30-day public comment period and an opportunity for a public meeting; the comment period may be extended.

5. Record of Decision (ROD)

The Record of Decision (ROD) is the formal legal document issued by EPA that details the selected site remedy, addresses public comments via a Responsiveness Summary, and establishes legal performance and cleanup standards.

6. Remedial Design / Remedial Action (RD/RA)

• Remedial Design (RD): Preparation of detailed engineering specifications, blueprints, construction plans, and equipment procurement documents.
• Remedial Action (RA): Actual construction, system installation, earthmoving, treatment plant erection, and startup.

7. Construction Completion & Operation and Maintenance (O&M)

• Construction Completion: Physical construction of all remedial infrastructure is complete (even if pump-and-treat or bioremediation systems must operate for decades).
• O&M: Ongoing operation, routine sampling, monitoring well gauging, cap maintenance, and mechanical servicing.

8. NPL Deletion & Mandatory Five-Year Reviews

• NPL Deletion: Once all cleanup goals established in the ROD are achieved and verified, EPA initiates formal rulemaking to delete the site from the NPL.
• Five-Year Reviews (CERCLA § 121(c)): If the selected remedy results in hazardous substances, pollutants, or contaminants remaining on site above levels that allow for unlimited use and unrestricted exposure, EPA is legally mandated to conduct a comprehensive formal review at least every five (5) years to verify that the remedy remains protective of human health and the environment.

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3. The Nine CERCLA Evaluation Criteria & ARARs

Under 40 CFR § 300.430(e)(9)(iii), all remedial alternatives in the Feasibility Study must be evaluated against Nine Evaluation Criteria, structured into three statutory tiers:

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|                             THE NINE CERCLA EVALUATION CRITERIA                         |
|                                                                                         |
|   [TIER 1: THRESHOLD CRITERIA] (Mandatory Pass/Fail Gates - Must be satisfied)          |
|   1. Overall Protection of Human Health and the Environment.                            |
|   2. Compliance with Applicable or Relevant and Appropriate Requirements (ARARs).       |
|                                                                                         |
|   [TIER 2: PRIMARY BALANCING CRITERIA] (Trade-off & Comparative Selection Factors)      |
|   3. Long-Term Effectiveness and Permanence.                                            |
|   4. Reduction of Toxicity, Mobility, or Volume Through Treatment.                      |
|   5. Short-Term Effectiveness (Worker safety, community impacts during construction).   |
|   6. Implementability (Technical feasibility, administrative permitting, equipment).    |
|   7. Cost (Capital cost, annual O&M, Net Present Value / NPV).                          |
|                                                                                         |
|   [TIER 3: MODIFYING CRITERIA] (Evaluated after public comment period)                  |
|   8. State / Support Agency Acceptance.                                                 |
|   9. Community Acceptance.                                                              |
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Applicable or Relevant and Appropriate Requirements (ARARs)

Under CERCLA § 121(d), on-site Superfund response actions are exempt from obtaining formal administrative permits (e.g., NPDES or RCRA permits), but they must strictly comply with substantive federal and state environmental standards, designated as ARARs:

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4. RCRA Corrective Action Process (RCRA §§ 3004(u)/(v) and 3008(h))

While CERCLA focuses primarily on abandoned, unpermitted, or legacy release sites, the RCRA Corrective Action Program mandates cleanups at operating, permitted, or interim status facilities that treat, store, or dispose of hazardous waste. Under RCRA § 3004(u) and (v), any facility seeking a RCRA hazardous waste permit must address releases of hazardous waste or constituents from any Solid Waste Management Unit (SWMU) regardless of when the waste was placed in the unit.

The RCRA SWMU Corrective Action Sequence:

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|                        RCRA CORRECTIVE ACTION MILESTONES (SUBPART S)                    |
|                                                                                         |
|   [1] RCRA FACILITY ASSESSMENT (RFA)                                                    |
|   - Conducted by regulatory agency (EPA or authorized State).                           |
|   - Identifies all SWMUs, Areas of Concern (AOCs), and potential release points.        |
|                                     |                                                   |
|                                     v                                                   |
|   [2] RCRA FACILITY INVESTIGATION (RFI)                                                 |
|   - Conducted by facility owner/operator.                                               |
|   - Fully delineates the nature, three-dimensional extent, and rate of release.         |
|                                     |                                                   |
|                                     v                                                   |
|   [3] CORRECTIVE MEASURES STUDY (CMS)                                                   |
|   - Facility identifies, screens, and evaluates potential engineering remedies.         |
|   - Recommends preferred remedy based on technical, human health, and cost factors.     |
|                                     |                                                   |
|                                     v                                                   |
|   [4] CORRECTIVE MEASURES IMPLEMENTATION (CMI)                                          |
|   - Agency approves Statement of Basis and issues final remedy selection.               |
|   - Facility designs, constructs, operates, maintains, and monitors the remedy.         |
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Direct Comparison: CERCLA vs. RCRA Corrective Action Pipelines