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BACKGROUNDIn 1965, Congress passed the Solid Waste Disposal Act. The aimof the legislation was to provide funding so that each state couldstudy and compile information on its waste disposal problemsand practices; deal with the problem of open, burning wastedumps; and develop solid waste management plans. However,by the mid-1970s, it was evident that the improper disposal ofwaste products was contributing significantly to air pollutionand the contamination of surface and groundwater. To combatthe problem, in 1976, Congress virtually rewrote the Solid WasteDisposal Act with the passage of the Resource Conservation andRecovery Act (RCRA).1 The aim of RCRA is to provide “cradle-to-grave” waste controls by imposing management requirements

on the generators and transporters of hazard-ous wastes and on the owners and operators oftreatment, storage, and disposal (TSD) facilities.RCRA has been amended periodically since itsenactment; perhaps most importantly by theHazardous and Solid Waste Amendments(HSWA) of 1984.

The Comprehensive Environmental Re-sponse, Compensation, and Liability Act, com-monly referred to as CERCLA or Superfund, wasenacted by Congress in 1980.2 The impetusbehind CERCLA was the realization that inac-tive hazardous waste sites presented great riskto public health and the environment and thatthe existing laws did not address abandonedwaste disposal sites. In 1986, CERCLA wasextensively amended by the Superfund Amend-ments and Reauthorization Act (SARA).Although SARA added many provisions toCERCLA and clarified much of what wasunclear in the original rule, the major emphasisof CERCLA remained the same: Enforcement ofthe cleanup of inactive hazardous waste sites andthe distribution of cleanup costs among theparties who contributed to the generation,handling, and transportation of hazardoussubstances at these sites.

RCRA OVERVIEWRCRA consists of 10 Subtitles, each of which ad-dresses some aspect of resource conservation andwaste management. Subtitle C is the primaryportion of RCRA that deals with the manage-ment of hazardous waste. The goal of Subtitle Cis to identify hazardous wastes and establish stan-dards for the generation, transportation, stor-age, treatment, and disposal of such wastes.RCRA defines solid waste as “hazardous” if it islisted by the U.S. Environmental Protection

Agency (EPA) in Title 40 Code of Federal Regulations (CFR) Part261, Subpart D (“List of Hazardous Wastes”). Once a waste isdetermined to be hazardous because it is a listed waste or becausemedia (i.e., air, water, soil) have been contaminated by the listedwaste (or, potentially, a byproduct of treatment of the listed waste),then the material must be managed as a hazardous waste regard-less of the concentration of contaminants present. There are ex-emptions. For example, certain wastes from mining and mineralprocessing are exempt from the definition of hazardous wasteunder the Bevill exemption, as well as wastes listed solely forexhibiting a characteristic of hazardous waste (more below).

Solid waste that is not listed as hazardous in Subpart Dmay still fall under the RCRA definition of hazardous waste if

Environmental cleanup at a site or facility, whether voluntary or as aresult of enforcement action, is conducted under the requirements andguidelines of either the Resource Conservation and Recovery Act (RCRA)or the Comprehensive Environmental Response, Compensation, andLiability Act (CERCLA). As one might expect, there are similarities anddifferences in how these two programs are administered. However, thedistinction is not always clear. In fact, the parties responsible for thecleanup may have options at their disposal as to which program is imple-mented. This article compares the two programs.

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it exhibits any of the four hazardouswaste characteristics identified inTitle 40 CFR Part 261, Subpart C(“Characteristics of Hazardous Waste”):ignitability, corrosivity, reactivity, andtoxicity. Ignitability identifies materi-als that are capable of causing a fire, orexacerbating a fire, during routinehandling; corrosivity identifies materialsthat are capable of corroding metal andthus could escape their containers andliberate other wastes; reactivity regu-lates materials that are extremely un-stable and have a tendency to reactviolently or explode during handling;and toxicity identifies materials that arelikely to leach hazardous concentra-tions of specific toxic constituents intogroundwater under mismanagementconditions.

Corrective action under RCRA maybe initiated as a result of applying for and acquiring a permitor as a result of an EPA enforcement action. The correctiveaction process begins with a RCRA facility investigation (RFI).If areas of concern are identified during the investigation, thena corrective measures study (CMS) is initiated. The purpose ofthe CMS is to identify and evaluate potential cleanup alterna-tives. There is an allowance for addressing critical areas of con-tamination or impact before the completion of the RFI and/orCMS by implementing interim measures to stabilize the siteand control any contaminant migration.

CERCLA OVERVIEWCERCLA is designed as a remedial statute that authorizes federaland state governments—and private parties, in certain situa-tions—to respond to and clean up hazardous substances and othertoxic pollutants. The government response actions are financedthrough a “Superfund” created by a tax imposed primarily onthe chemical and petroleum industries.

Although funding may be available through Superfund toaddress site cleanup, the intent of CERCLA is to have the re-sponsible parties either take the lead in the cleanup or reim-burse the government for the cleanup costs. CERCLA givesEPA the authority to pursue legal action needed to require re-sponsible parties to fund any required investigation and cor-rective action. To support that involvement, there are specificprovisions to encourage settlements between the governmentand the responsible parties. These provisions include contri-bution protection, covenants not to sue, de minimis contribu-tor settlements, specified periods of negotiation, “mixedfunding” authority, and government authority to make non-binding allocations of responsibility.

Cleanup under CERCLA is conducted according to theNational Contingency Plan (NCP). The NCP provides the pro-cedures and standards for government response to the releaseof hazardous substances and other pollutants to the environ-ment. The NCP includes methods for evaluating hazardouswaste disposal facilities and practices, identifying appropriateresponse methods and equipment, assigning responsibilitiesto various levels of government agencies in carrying out theNCP, and determining priority among sites for taking effec-tive long-term remedial action.

Once a site is identified for potential cleanup under CERCLA,a remedial site evaluation is performed. If the evaluation deter-mines that the site presents a sufficient threat to human healthand the environment, warranting a response action, then thesite is placed on the National Priority List (NPL) and potentialresponsible parties are notified that CERCLA-related actionsmight be warranted. The process for corrective action underCERCLA is as follows: a more complete site investigation, knownas a “remedial investigation,” is conducted, followed by a feasi-bility study (i.e., an evaluation of cleanup alternatives), andfinally, a remedial action. EPA oversees all activities and reviewsall work during this process, even if the responsible parties havecome forward and are leading the corrective action work. Aswith RCRA, immediate removal actions can take place prior tothe completion of site investigations and/or remedial actionevaluations to deal with conditions that, if left unchecked, couldlead to more significant environmental hazards.

CERCLA’s greatest driver toward the successful implemen-tation of permanent treatment and cleanup is the requirementthat a remedy (or remedial action) achieve all “applicable orrelevant and appropriate requirements (ARARs)” for hazardous

RCRA vs. CERCLARegulatory drivers requiring corrective action.

Under RCRAAddresses only suspected releases frompermitted or identified waste management units.

Addresses hazardous waste as defined by theregulation.

Owners and operators are liable for cleanup.

Once a corrective action is initiated, RCRA willnot incur oversight costs by EPA or thedelegated state authority.

Under CERCLAA suspected release from any site can initiate asite inspection and potential listing on the NPL.

Addresses all “hazardous substances” asdefined by the regulation.

Anyone who may have contributed to the siteconditions may be liable. This may include thecurrent owner or operator, but also pastowners/operators, entities that arranged forwaste to be brought to the site, and even thetransporter(s) involved with bringing theregulated material to the site.

Once a corrective action is initiated, CERCLAwill incur EPA oversight costs.

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substances, pollutants, or contaminants of concern. That is,any standard, requirement, criteria, or limitation under anyfederal environmental law, and any promulgated standard,requirement, criteria, or limitation under a state environmen-tal or facility siting law that is more stringent than any federalstandard. The application of ARARs at CERCLA sites has meantthat remedies must achieve the most stringent cleanup levelsestablished by other federal and state standards.

PROGRAM COMPARISONSState Authorization

A primary difference between RCRA and CERCLA enforcementinvolves state versus federal authorization. RCRA legislationincludes a provision whereby EPA can delegate authorityfor RCRA regulations to an approved state. It is importantto note that delegated RCRA authority may or may notinclude authority over all aspects of the RCRA program,including corrective action. At the time of this writing, onlytwo states (Alaska and Iowa) have not been delegatedauthority to the base RCRA program. However, a numberof states that have been delegated some authority underRCRA do not have authority to implement correctiveaction programs.

The delegation of RCRA authority occurs in phases. Al-though corrective action is integral part of RCRA, the regula-tion is primarily a permitting program. Therefore, the first stepin delegating RCRA authority to a state is the delegating ofpermitting functions. The delegation of other RCRA functions,including corrective action, occurs once the appropriate ap-plications have been submitted and approved by EPA. In likefashion, RCRA authority can be rescinded, thereby reinstatingEPA as the implementing authority covering a particular state.

CERCLA and the related amendments do not provide fordelegated state authority. A state may enact a Superfund-typelaw whose provisions are similar to CERCLA (and many stateshave done so), but the basic provisions of CERCLA will alwaystake precedence and, thus, EPA retains final authority. It isimportant to note that many states enacted “mini-Superfund”laws that establish Superfund-type provisions for theremediation of non-NPL sites.

Applications and ProceduresRCRA corrective action procedures typically apply to a specificfacility or site, while the application of CERCLA-driven cleanupscan be much broader. CERCLA is commonly thought of as regu-lating past waste management activities, while RCRA regulates

Batch Process HAP EmissionCalculations for MACT Compliance

This Audio + Web conference is intended to introduce interestedparties to the new EPA Emission Inventory Improvement Programguidance document for the chemical industry. This document iscurrently being circulated for peer review and comment.

Presenters:• Mike Dixon, Dixon Environmental • Allen Hatfield, Mitchell Scientific • Dennis Beauregard, EPA Office of Air Quality

Planning and Standards, Emissions Inventory Branch • Randy McDonald, EPA Office of Air Quality Planning

and Standards, Emissions Standards Division

Monday, March 15, 20042:00 - 4:00 p.m. Eastern TimeAll you need is a phone line and an Internet connection to participate!

A&WMA Presents:

For more information, visit www.awma.org/eventsor call 1-800-270-3444 • +1-412-232-3444

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About the AuthorDan Mueller, P.E., is vice president of Whitehead & Mueller Inc.,an environmental engineering and consulting firm located in Plano,TX. Mueller serves on A&WMA’s Board of Directors and is thecurrent Sections & Chapter Council Chair. He can be contacted viae-mail at dmueller@wh-m.com.

the present management of hazardous waste. While this may begenerally true, there are exceptions to this rule and it is impor-tant to recognize that the time frame of a suspected release is notalways an accurate indicator of which program will apply.

In terms of regulatory drivers requiring corrective action,there are several key differences between the two programs.These include the definition of “hazardous” materials, poten-tial liability for cleanups, and oversight costs for corrective ac-tions (see sidebar “RCRA vs. CERCLA”). Although the requiredreports may have been assigned different names, RCRA andCERCLA have a similar path to follow in terms of a site investi-gation, evaluation of remedies, and remediation and site clo-sure. A key difference is that CERLCA cleanups must take intoaccount ARARs in determining cleanup goals. Additionally, on-site CERCLA remedies may be exempted from compliance withthe administrative elements of other laws and regulations. Thisis not the case with RCRA corrective actions. However, the de-sign of on-site disposal units are likely to be required to meetRCRA design standards, and once a waste is transported off-site, RCRA transportation and disposal regulations will apply(i.e., final disposal at a permitted RCRA facility will be required).

Program DeferralIn 1983, EPA announced its deferral policy, whereby even if asite meets the criteria for being listed on the NPL, EPA maychoose not to list it if the site can be cleaned up under anotherfederal or state program. EPA may choose to defer sites to otherprograms for one of several reasons: to free up CERCLA’s over-sight resources for other sites, to prevent duplication of effort,or to eliminate the need for owner/operators to follow morethan one set of regulatory procedures. EPA will generally deferthe listing of potential NPL sites when other authorities existthat are capable of accomplishing the needed corrective ac-tion. The deferral policy states that EPA will not defer RCRAfacilities where the owners are either bankrupt or have shownan unwillingness to undertake the required corrective action.Site deferral is dependent on the fact that an ongoing responseaction under RCRA is progressing adequately. In 1995, EPAissued two guidance documents with regard to its deferralpolicy.3,4 At the request of a state, a site may be deferred fromNPL listing if it is determined that the state, or other partyunder an agreement or order from the state, is conducting aresponse action. This deferral is contingent on compliance witha state program that specifically governs response actions forthe protection of public health and the environment.

SUMMARYAlthough RCRA corrective action generally addresses the man-agement and cleanup of hazardous wastes at existing facilities,while CERCLA corrective action addresses the cleanup of closedor abandoned facilities, there are always exceptions. For example,closed facilities that could fall under CERCLA-driven corrective

action may be addressed using RCRA-based corrective measures.It is important to know, therefore, the framework of optionsavailable to pursue the “correct” corrective action, including what,if any, regulatory oversight costs there will be, and that all ofthese factors be incorporated into a final plan that will providefor complete, efficient, and cost-effective site cleanup.

REFERENCES1. Resource Conservation and Recovery Act. 42 U.S.C. 6901-6992, 1976.2. Comprehensive Environmental Response, Compensation, and Liability

Act (Superfund). 42 U.S.C. 9601-9675, 1980.3. Guidance on Deferral of NPL Listing Determinations While States Oversee

Response Actions; OSWER Directive 9375.6-11; Office of Solid Waste andEmergency Response, U.S. Environmental Protection Agency: Washing-ton, DC; May 3, 1995.

4. The National Priorities List for Uncontrolled Hazardous Waste Sites; De-letion Policy for Resource Conservation and Recovery Act Facilities; Fed.Regist. 1995, 60, 14641; available online at http://www.epa.gov/docs/fedrgstr/EPA-WASTE/1995/March/Day-20/pr-174.html.

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