CEMP-RT

Engineer Pamphlet

200-1-9

Department of the Army

U.S. Army Corps of Engineers

Washington, DC 20314-1000

EP 200-1-9

19 August 1998

Engineering and Design

EFFECTIVELY WORKING WITH STATE 

 AND FEDERAL REGULATORS

Distribution Restriction Statement

Approved for public release; distribution is 

unlimited.
EP 200-1-9

Effectively Working with State & Federal Regulators

19 August 1998
AVAILABILITY

Copies of this and other U.S. Army Corps of Engineers

publications are available from National Technical

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22161. Phone 1-800-553-NTIS.

Government agencies can order directly from the U.S. Army

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publication distribution channels.

UPDATES

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and their most recent publication dates, refer to the following

URL on the World Wide Web:

http://www.usace.army.mil/inet/usace-docs/.
CEMP-RT

DEPARTMENT OF THE ARMY

U.S. Army Corps of Engineers

Washington, DC 20314-1000

EP 200-l-9

Pamphlet

No. 200-1-9 19 August 1998

Engineering and Design

Effectively Working with State and Federal Regulators

1. Purpose. The primary purpose of this Engineer Pamphlet (EP) is to provide ideas, strategies,

and discussion in an effort to assist in better communication and coordination with

environmental regulators in the successful execution of Corps’ projects.

2. Applicability. This EP applies to all USACE commands having Civil Works and/or Military

Programs hazardous, toxic, or radioactive waste (HTRW) project responsibilities.

3. References. References are provided in Appendix A.

4. Distribution Statement. Approved for public release, distribution is unlimited.

5. Discussion.

a. This document is a collaboration of experience, opinions, and lessons learned by various

engineers and scientists who have been working in the hazardous waste remediation field for

many years. This EP does not provide formal USACE policy, and it should not be used as a

basis to render legal opinions about the subject matter.

b. Successfully working with local, state, and/or Federal environmental regulators is a

challenging job. It is important to realize that it takes a lot of different types of expertise and

experience and is almost an art form to effectively communicate with environmental regulators.

Effective communication with regulators must begin in the initial stages of the project. Open,

honest, frequent, and early communication are essential components of any

project.

FOR THE COMMANDER:

2 Appendices

APP A - References

APP B - List of Acronyms

environmental

Major General, USA

Chief of Staff
Effectively Working with State and Federal Regulators

Table of Contents

Let’s get started............................................................................ 1

Why should I read this pamphlet?. ...................................................... 1

HTRW remediation work................................................................. 1

So what’s the point?........................................................................ 13

Streamlining the remediation process................................................... 16

When should communications with the regulators begin?............................ 18

Who’s who?................................................................................. 20

What is “negotiable?“. .................................................................... 22

Who should meet with the regulators?.................................................. 23

Is there really a Win-Win situation?................................................... 24

The Mutual-Gains Approach............................................................ 24

Helpful Hints............................................................................... 25

Relationships do matter.................................................................. 26

Regulators’ responsibilities.............................................................. 27

The role of stakeholders................................................................. 27

Politics do matter......................................................................... 28

Communicating with customers........................................................ 29

Documenting agreements............................................................... 30
Revisiting decisions..................................................................... 3 1

The formal negotiation process........................................................ 31

In the end................................................................................. 31

Appendix A - References............................................................... A-l

Appendix B - List of Acronyms....................................................... B-l
Advisory message to the reader

This document is a collaboration of experiences, opinions, and lessons learned by various

engineers and scientists who have been working in the hazardous waste remediation field for

many years. As such the document does not provide formal USACE policy, and it should not be

used as a basis to render legal opinions about the subject matter. Through this collection of

lessons learned the author’s intent was to provide more global advice to the reader in order to

hopefully aid them in their project endeavors. 

It should also be noted that this document is not meant to assign roles or responsibilities for

dealing with regulators. This document addresses the collective “you”, “project engineers”,

“project teams”, “engineers and scientists”, etc. This may mean whoever is included when you

meet with regulators, including but not limited to, the customer, Commander, engineers,

scientists, attorneys, etc. 

It is important to realize that a very difficult part of HTRW work is the fact that you must deal

with regulators and other stakeholders almost on a daily basis. Stakeholders may include the

local community and residents, tribal parties, and other environmental groups. In any event,

the simple fact is, we must work as partners in order to get the job done. To clarify, we must

work as partners who mutually trust and mutually respect each others' positions, technical

capabilities and authorities.

We must learn to work side-by-side. After all, we are in pursuit of a

common goal...the cleanup and protection of our environment and the

protection of everyone's health!
1

Let's get started

Successfully working with your local, state and/or Federal environmental regulators is 

a challenging job; probably one of the toughest tasks associated with environmental work. It 

is important for you to realize that it takes a lot of different types of expertise and experience 

and is almost an art form to effectively communicate with environmental regulators. So, do 

not ever be discouraged, thinking the task is too monumental. Just sit back, read this pamphlet

and think about the way you are going to approach your next problem.

Effectively working with state and Federal regulators means that you must begin to

communicate with the regulators from the initial stages of the project. Open, honest, frequent,

and early communications are an essential component of any environmental project.

Why should I read this pamphlet?

If you have picked this pamphlet as reading material, it is probably because you want 

to improve (or enhance) your skills in "communicating" with your local, Federal, and/or state

environmental regulators. We have all been there at one point or another. As you read 

through this pamphlet, you will see that we have tried to gather day to day "real-life" lessons

learned from various professionals who have dealt with regulators throughout their Hazardous,

Toxic, and Radioactive Waste (HTRW) careers. The unique characteristic of this document is

that it is not written based on the principles of Total Quality Management (TQM) or formal

negotiated rule-making or other management and leadership textbooks. This document has 

been written by engineers and scientists who have had experience with local, state and Federal

regulators. In this case, experience may be the best teacher. Hence, the intent of this 

pamphlet is to provide ideas, strategies and discussions in an effort to assist you in better

communicating and coordinating with environmental regulators for the successful execution of

your project. 

HTRW remediation work

Unfortunately, there is no easy formula for conducting HTRW work. HTRW work is

relatively straightforward from an engineering and scientific point of view. But from a

procedural, political, and regulatory point of view, HTRW work can be very complicated. 

There are many complex and dynamic laws and regulations. There are many state, local and

Federal regulators with different goals and perspectives. There are many stakeholders; and

HTRW can be an emotional issue. 
2

 Experience

A HTRW Center of Expertise (CX) representative recalls attending a public

meeting on a Formerly Used Defense site as an example of how emotional the

HTRW business can be. The citizens appeared frustrated. There were six

reported cases of Hodgkin's disease in a four block area of the community. The

county and state Public Health officials stated at the meeting that this did not

constitute an ‘unreasonable cluster’ and this was not a high incidence for that 

area of the state. To the CX representative though, it seemed unlikely to expect 

six cases of the same disease in a four block area of a town. 

During the public meeting the various Corps representatives explained what

remediation would be done at the site, why and when remediation would occur. 

At the end of the public meeting, the mayor rose to his feet and informed the

audience of about 200 people that there were only five cases of Hodgkin's 

disease in the area now -- one person had died.

 Lesson Learned

Hazardous and toxic waste issues can be emotional matters. This fact should be

recognized and accepted when working with the stakeholders. This 

consideration may play a very important role in community relations for the 

future.

As HTRW issues can be emotional, this factor must be recognized, accepted, and dealt

with openly. Decisions may be made by regulators and stakeholders that are driven in part by

emotion. Emotions and politics are strong forces in HTRW remediation work.

As discussed above, decisions may be made based on a combination of emotional,

political, scientific and technological factors. It is imperative that the project team responsible 

for working with the regulators understand the dynamics of the situation and the environmental

laws and regulations under which the regulators and the Corps must operate. Do not expect or

rely upon contractors to determine the requirements established in environmental laws and

regulations. The project team must recognize when these requirements arise and include 

agency counsel to determine the agency position on the requirements.

The following is a broad overview discussion of the major regulatory programs in 

which the Corps performs HTRW work. There may be other state programs that are 

applicable, but this document only discusses the remediation program processes under the

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as

amended , the Defense Environmental Restoration Program (DERP) , and the Resource 1 2

Conservation and Recovery Act (RCRA) as amended.3
3

Experience

Several years ago, a Corps HTRW project engineer attended a meeting for a 

Civil Works remediation project. In the conference room there were 

representatives from the State Water Control Board, the State Regional Water

 Quality Control Board, the State Air Office, the State Hazardous Waste Office, 

the State Regional Air Office, the State Solid Waste Office, the Federal EPA 

CERCLA Office, the Federal EPA Wetlands Office, the customer and the 

Corps. Everyone at this meeting appeared to be present for different reasons,

 trying to obtain different goals. Everyone seemed to have viable concerns about 

the project.

Due to the large number of regulators from various offices, it was difficult for 

the Corps representative to determine with which regulatory office he was 

discussing a particular requirement. It is important to know which office the 

regulator represents when you are discussing matters. For example, if you are 

discussing waste characterization requirements, you should be discussing this 

subject with someone from the RCRA office as this office is responsible for this 

subject matter, not the CERCLA office.

Lessons Learned

It is important to know the responsibilities and authorities of each regulatory

 office you are working with in order to get the appropriate perspectives and 

responses to your questions. 

Within DOD, there has been a concerted effort to eliminate this problem by requiring

the states and EPA to establish single points of contact. These points of contact should 

coordinate the appropriate questions within their regulatory agency. In addition, 

appropriate legal counsel should be consulted in the event of a question of this sort, and

the designated communication channels should be required to sort out any conflicting 

demands or asserted requirements. It may be appropriate in some situations to request, 

or even demand, that the designated regulatory point of contact consult with certain

program staff within their agency, such as the RCRA or CWA personnel. The USACE

staff should not attempt to separate complicated issues and take them directly to 

separate regulatory elements outside of the designated point of contact. Such efforts 

may lead to disputes and contrary determinations being made later by the authorized 

point of contact, as well as leading to deterioration of the working relationship with the

point of contact.
4

Our Nation's Major Environmental Response Programs 

National programs to clean up the environment and protect the public have seen

considerable growth since the 1970's. When Congress enacted the Clean Air Act in 1970, one 4

of the primary purposes of the statute was to protect and enhance the quality of the nation’s air

resources so as to promote public health and welfare. Similarly, when Congress enacted the

Clean Water Act in 1972, one major objective was to achieve a national goal that the 5

discharge of pollutants into navigable waters would be eliminated by 1985 and that the 

discharge of toxic pollutants in toxic amounts be prohibited.

To begin to understand the waste problems in the United States, Congress created the

Solid Waste Disposal Act of 1965. One goal of the legislation was to provide funding so that 3

each state could study and compile information on its waste disposal problems and practices, 

and to assist states in dealing with the problem of open burning dumps. Additionally, 

technical and financial assistance was made available for the development of state solid waste

management plans. By the mid 1970's, Congress recognized that the careless disposal of 3

hazardous waste was contaminating surface and groundwater and contributing to air pollution. 

To combat the problem, Congress revised the Solid Waste Disposal Act and created the

Resource Conservation and Recovery Act (RCRA) which was passed in 1976. 3

The goal of RCRA is to promote the protection of health and environment, and to

conserve valuable material and energy resources. RCRA has kept in stride with current waste 3

management issues and problems by way of Congressional amendments, the most notable of

which occurred in 1984 with the passage of the Hazardous and Solid Waste Amendments

(HSWA). Under the provisions of HSWA, Congress established the authority for Corrective 3

Action requirements at permitted or interim status hazardous waste management facilities. 

Promulgation of these requirements under RCRA sent a message to industry and the 

government that they were expected to remediate releases from permitted or interim status

hazardous wastes management sites at facilities they owned and operated as a condition of EPA

allowing existing hazardous waste management operations to continue. 3

RCRA was enacted to require proper management of waste generated at existing

facilities. However, incidents such as Love Canal soon made it abundantly clear that another 3

statute was needed to clean up the nation's abandoned hazardous waste sites. 

Thus, in December 1980, Congress enacted CERCLA. This was the first major 

Federal response to the problem of abandoned waste sites throughout the nation resulting from

the past release of hazardous substances in nearly any type of situation. This law imposes

response action requirements on the President, and thus all Federal agencies, and also creates

certain regulatory and enforcement authority in EPA. In order to fund the work required of 

EPA, Congress established a trust fund known as the ‘Hazardous Substance Superfund’, or

commonly referred to as the ‘Superfund’. Congress initially authorized EPA to use the 

Superfund to undertake a program of $1.6 billion over five years funded by a tax on petroleum
5

companies and chemical manufactures. 1 

In 1986, Congress enacted the Superfund Amendments and Reauthorization Act

(SARA). Among the changes made in SARA was that it significantly increased the size of the 1

fund. The passage of SARA had a considerable effect on DOD activities related to hazardous

waste site remediation. SARA also included section 211, the Defense Environmental 

Restoration Program (DERP) statute. This portion of the statute created the authority of 2

DOD to undertake certain response actions and establish the Defense Environmental 

Restoration Account (DERA).2

The Defense Environmental Restoration Program (DERP) 

Congress created the Defense Environmental Restoration Account (DERA) when it

enacted Section 211 of SARA -- also known as the Defense Environmental Restoration 

Program. Although the DERA is not limited to sites on the EPA National Priorities List 2

(how a facility gets on the NPL list is discussed on page 13), per the statute, hazardous 

substance response activities funded by the DERA must be carried out subject to, and in a 

manner consistent with, Section 120 of CERCLA. Department of Defense (DOD) 1,2

environmental managers should be aware of the significance of that limitation, particularly when

EPA or state regulators insist the cleanup be conducted pursuant to RCRA corrective 

action or state requirements other than CERCLA. If regulators demand cleanup efforts that 

are inconsistent with CERCLA section 120, DERA funds will not be available to support those

endeavors. This is a very complicated legal matter that will warrant discussion with your 2

legal counsel. DERA/DERP, by DOD policy, does not apply to Civil Works facilities.

Purpose of the CERCLA Remedial Action Program and the RCRA Corrective Action Program

CERCLA was enacted to create Federal authority and standards for responding to 1

releases of hazardous substances at certain sites in the nation. EPA may conduct response 

actions at National Priorities List (NPL) sites or removal action sites. The law imposes

responsibility and liability for response action on four categories of parties know as Potentially

Responsible Parties (PRPs), who may in some circumstances be ordered by EPA to conduct

response actions or pay for the costs of response. Federal agencies are responsible for 

conducting response actions on installations and facilities under their jurisdiction where there 

have been releases of hazardous substances.

The RCRA Corrective Action program was established to remediate facilities where a 3

current owner/operator of the hazardous waste management facility is present and responsible 

for cleaning up the site. The RCRA Corrective Action program authorizes EPA to require

corrective action at a facility seeking a permit where there has been a release of a hazardous 

waste or constituent at the facility, regardless of when waste was disposed of at the facility, 
6

and to require work beyond the facility boundary where necessary to protect human health and

the environment.3

Federal and State Regulatory Authorities 

The Superfund program is administered by the EPA. The regulations implementing

CERCLA are found in 40 CFR 300, the National Contingency Plan (NCP). For 6

non-governmental NPL sites undergoing a CERCLA remediation, the EPA is the lead

enforcement agency. 

Executive Order 12580, Superfund Implementation dated 23 January 1987, as amended

 by Executive Order 13016, dated 28 August 1996 delegated many of the authorities of the

President established in CERCLA to DOD, as well as other Federal agencies, for all facilities 

not on the NPL, and for facilities on the NPL as to DOD and DOE. One such authority is 7 

that DOD is the lead Federal agency for response actions at both NPL and non-NPL DOD

installations. This includes the authority to select remedies, subject to the concurrence of EPA 

for NPL sites as per section 120(e)(4)(A) of CERCLA. 

Under CERCLA, EPA does not authorize states to administer the program. States,

however, may promulgate their own "mini" CERCLA-type laws. It should be recognized that

these are strictly state laws and do not preempt the authorities of EPA or other Federal 

agencies under CERCLA.1

Unlike CERCLA, RCRA contains provisions for states to develop and administer 3

hazardous waste programs that are at least as stringent as the Federal RCRA law. States 

submit their state hazardous waste laws and regulations to the EPA for a determination if the 

state will be authorized to administer its own program in lieu of the Federal program. EPA 

may grant the states varying levels of authorities based on their ability to administer RCRA. 

Most states currently have base RCRA authority. Significant amendments to RCRA, such as 

the Hazardous and Solid Waste Amendments of 1984, have included provisions requiring 

states seeking authority to issue permits which include HSWA requirements such as corrective

action to submit a new application to EPA for review of their laws and regulations for 

consistency with HSWA. Similarly, if EPA issues new regulations which establish more

 stringent standards, states may not issue permits or take action based on lesser standards, and

must revise their regulations and seek EPA review for consistency with the new Federal

standards. States may also have their authorized programs revoked by EPA if their authorities 

or the implementation of their program are determined to be inadequate. 3

Since states can be authorized to administer portions of the RCRA program, the project

team should consult with agency counsel to determine the extent of state’s authority to 

administer a hazardous waste program. Issues of this sort may be affected by Federal 

sovereign authorities. 

 
7

Initiating a CERCLA Action

In section 120(c) of CERCLA , Congress required EPA to develop a list of all Federal 1

facilities that ever stored, treated, disposed of, released/spilled or are currently generating,

treating, storing or disposing of hazardous wastes, or have released a hazardous substance in a

reportable quantity. The list, which EPA maintains, is called the Federal Agency Hazardous

Waste Compliance Docket. The Docket is comprised of sites included in the Federal property

hazardous waste site inventory reports, sites for which a Treatment, Storage or Disposal 

Facility (TSDF) permit has been applied for, or for which a notification of hazardous waste

activities subject to a permit have been given, and sites for which a notice of a release has been

submitted to the National Response Center (NRC).1

CERCLA establishes the requirements for actions on sites listed on the Docket. 

CERCLA requires that a Preliminary Assessment (PA) and Site Inspection (SI), if warranted, 

be performed on all Federal sites that have been listed on the Docket. Inclusion on the 1

Federal Docket is the one way for Federal Facilities to be brought into the CERCLA 

remediation process. Currently, Formerly Used Defense Sites (FUDS) are not routinely 

included on the Docket. 

Overview of the CERCLA Process 

Once a Federal facility is listed on the docket, a PA must be conducted at the facility. 

If, after completing the PA and consulting the NCP requirements, further action is required, 

the facility must perform a SI. Upon completion of the PA and SI, the EPA may numerically

rank the site utilizing the Hazard Ranking System (HRS). EPA has discretion as to which sites

will be scored, depending on the nature of the site information presented in the SI and the

activities of the agency controlling the property or other regulatory agencies. If the site is 

scored, the resulting numerical score aids the EPA in determining whether or not the site will

become an NPL site. If the site is determined to be an NPL site (scores > 28.5), the facility 

must initiate a Remedial Investigation and Feasibility Study (RI/FS) no later than six months 

after inclusion on the NPL. The process outlined in the NCP must be followed. After the

RI/FS has been completed, a proposed plan must be presented to the public with an 

opportunity for comments to be received and considered by the agency, after which a Record 

of Decision (ROD) will be signed. If the ROD selects a remedy which requires it, then the

remedial design will be performed, followed by the remedial action. 1,6

Compliance with the NCP is required even if the site is not on the NPL. This means 

the facility should consider such factors as the appropriate site investigation and analysis of

remedial alternatives, the selection of a cost-effective response, and the opportunity for public

comment before deciding on a remedial action or that no further action is required. For 

non-NPL sites, it should be determined if there are other regulations in addition to the NCP 

and DERP that apply to the site. A good example is a facility that has an operating RCRA 1,2 

permit. In this case, RCRA corrective action may be applied at the site. Consultation with 
8

legal staff is essential when determining the application of state requirements and the 

respective authorities of state regulators. 

The NCP offers much flexibility at non-NPL sites. In addition to remedial actions,

CERCLA removal actions may be undertaken at a site under certain circumstances. Removal

actions must be consistent with the final remedy. If you have at least six months to plan a 

removal action, you need to prepare an Engineering Evaluation/Cost Analysis (EE/CA) prior 

to beginning the removal action. If you have less than six months, a Time-Critical Removal

Action may be initiated immediately without any prior documentation.6

 

Initiating a RCRA Corrective Action 

Section 3004(u) of RCRA requires that prior to permit issuance to a hazardous waste 3

TSDF, corrective action for all releases of hazardous wastes and constituents from solid waste

management units (SWMUs) at the facility must be initiated. The provisions also allow

schedules of compliance to be used in permits where the corrective action cannot be completed

prior to permit issuance.3

RCRA section 3008(h) authorizes EPA to issue an order to hazardous waste 3

management facilities operating under interim status to perform corrective action if necessary to

protect human health and the environment as a result of a release of hazardous waste.3

Under the provisions of section 7003(a) , Congress authorizes EPA to bring a lawsuit or 3

issue an order when the handling, treatment, storage, or disposal of a solid or hazardous waste

may present an imminent and substantial endangerment to health or the environment. The order

may restrain activities or compel the conduct of an abatement action, or both.3

Overview of the RCRA Process

RCRA corrective action provisions can be triggered when a facility decides to apply for 

a RCRA permit to store hazardous waste over 90 days or to treat or dispose of hazardous 

waste on site. In either case, the facility will submit a RCRA permit application to the state 

or EPA.3

Once the permit application has been submitted to the state or EPA, if corrective action 

is necessary and agreed to by the agencies and regulators, the RCRA Corrective Action 

process may begin. The state or EPA (whichever has RCRA authority) may perform the 

RCRA Facility Assessment (RFA). The RFA is not mandatory and might not be performed, 

in particular if action at the facility has proceeded beyond the initial identification stage. If 

the RFA is conducted, the appropriate regulatory agency in consultation with the permittee 

will identify SWMUs. The regulatory agency will develop the Schedule of Compliance as

 well as identify action levels at this point. Action levels are those levels at which when 
9

exceeded will trigger initiation of a RCRA Facility Investigation (RFI) for the SWMUs. The

SWMUs, Schedule of Compliance and action levels are all items that will be formally 

negotiated by the customer, project team and attorneys. 3,8,9

Once these action levels are set, the regulatory agency will draft the permit. The 

public will have an opportunity to comment on the draft facility operating permit and 

associated schedule of compliance for corrective action, if any. Once the SWMUs have been

identified in the RFA, the facility may have to investigate these SWMUs in the RFI. [The RFI 

is analogous to the RI prepared under CERCLA.] Upon completion of the RFI, the Corrective

Measures Study (CMS) may need to be initiated. [The CMS is much like the FS under

CERCLA.] The CMS will be prepared by the facility. During this time the regulatory 

agency will set Media Cleanup Standards (MCS), then prepare a Statement of Basis which is

similar to the ROD under CERCLA.1,3,8,9

The regulatory agency approves the remedy and may issue a permit modification to the

Schedule of Compliance to incorporate the remedy. The facility will then begin remedial 

design, then corrective measures implementation (CMI) or remedial construction if necessary 

for the remedy.3,8,9,

 It is important to note that corrective action regulations establishing a general

remediation process have not been issued by EPA (as of the date of this publication). A 

common corrective action regulatory process has come into play based on the proposed EPA

corrective action regulations that were published in the Federal Register on July 27, 1990. 8

While these regulations have not been finalized by the EPA, many states use them as guidance 

in developing their state corrective action programs. In May 1996, EPA issued an advance

notice of rulemaking and request for comments on a revised strategy for promulgating 

regulations for a more flexible corrective action process under RCRA. In this notice, EPA

articulated their goal to make the RCRA corrective action process a very flexible, site-specific

cleanup program. The corrective action process is currently governed by the statutory 9

language, certain limited regulations promulgated under RCRA, and corrective action guidance

documents developed by the EPA. As of the date of this publication, there are 30 states with

corrective action authority.10

Comparison of the CERCLA and RCRA Programs 

The investigatory procedures for CERCLA and RCRA remedial action programs are

 quite similar. Figure 1 illustrates the similarities and differences between the actual 

processes. While the steps in the remediation processes are quite similar, there are some

differences in methodology as follows: 

a. RCRA grants authority to EPA to authorize states to enforce their own state RCRA hazardous

waste permitting program if the state program is approved by EPA. Separate EPA 
Comparison of the RCRA and CERCLA Regulatory Processes6T8T9 

The CERCLA Process The RCRA Process 

c 7 

I Site Inspection I No Equivalent Process I 

Hazard Ranking System Scoring I I No Equivalent Process 

I National Priorities List I I No Equivalent Process 

Feasibility Study 

I 

Corrective Measures Stiuiy 

Record of Decision I I Statement of Bask I 

I Remedial Design/Remedial Action I Corrective Measures Implementution 

I 

I 

NPL Deletion 

I 

No Equivalent Process 

Figure 1 

10 
11

approvals are required for a state’s authority to permit operations at a hazardous waste

management facility, corrective action, or underground storage tank programs, as well as

substantive statutory or regulatory amendments to the permitting programs. CERCLA has no 3

provisions to authorize state enforcement of state requirements comparable to those in 

CERCLA. The applicability of state laws to Federal agencies thus depends on an effective 1

waiver of sovereign immunity for the particular activity, authority and requirements asserted 

by the state . The authority of a state over a particular activity is a legal issue, thus it is 1

necessary that you consult agency legal counsel to determine the need for compliance with an

asserted state requirements. 

b. The RCRA corrective action procedures apply to hazardous waste management facilities, 

such as TSDFs seeking a permit to operate under 3004(u) and facilities operating under 3

interim status under 3008(h). The application of CERCLA is much broader. Any facility on 3

the Federal Facility Docket is required to at least initiate the CERCLA process through a PA 

or seek removal of the site from the Docket. 1

c. CERCLA is thought of as regulating past activities while RCRA regulates the present

management of hazardous wastes. Not all sites which handle hazardous wastes are required to

obtain a RCRA permit. Thus corrective action will not be triggered at all RCRA sites. 

CERCLA applies to all sites, past or present, where there is a release or a threatened release of 

a hazardous substance and all sites where a release or threatened release of a pollutant or

contaminant may present an imminent and substantial danger to public health or welfare. 

Many CERCLA sites are not RCRA permitted or interim status sites. Thus, CERCLA is

applicable to all RCRA hazardous waste management (HWM) facilities which are subject to

corrective action requirements, but RCRA corrective action requirements are not always

applicable to sites subject to CERCLA. While this statement is generally true, the response

processes for the two statutes can overlap.1,3

d. CERCLA has the NPL with its associated formal ranking process. RCRA has no comparable

ranking system.1,3

e. CERCLA establishes certain statutory criteria regarding the selection of remedies that are 

not included in RCRA. One of the criteria establishes a preference for remedies including

treatment which permanently and significantly reduces the volume, toxicity or mobility of the

hazardous substances. Another criteria provides that the degree of cleanup for a remedy which

includes leaving a hazardous substance at the site will attain legally applicable or relevant and

appropriate requirements (ARARs) under certain Federal and state laws, unless they are 

waived pursuant to CERCLA. RCRA does not have the elaborate remedy selection criteria 

which are provided in section 121 of CERCLA, however corrective action standards are based 

on protectiveness to human health and environmental and EPA policy is to make the RCRA

corrective action process and results comparable to the CERCLA response process.1,3,9

f. CERCLA Section 121(e) waives requirements for Federal, state, or local permits for 1
12

response actions conducted on the site. (The NCP provides that this applies to CERCLA

response actions conducted by EPA or any other Federal agency.) RCRA contains no similar

permit waiver.1,3

g. There is no statutory preference for an onsite remedy under RCRA as there is under 

CERCLA. The appropriate regulatory agency will approve the final remedy at a Federal 

facility under RCRA. The Federal agency, if DOD or DOE are involved, chooses the remedy

under CERCLA with concurrence from the EPA if it is an NPL site. EPA chooses the remedy at

private sites or other civilian Federal agency sites which are on the NPL. 1,3

h. The way cleanup levels are set may differ. Proposed RCRA corrective action 

regulations establish two levels: the action level and the media cleanup standards (MCSs). 8,9

The action level is the level at which corrective actions are triggered if this level is exceeded. 

The MCS is an EPA/state established cleanup standard that will be achieved during the CMI. 

While cleanup levels may be established by the regulations when proposed, cleanup standards

under RCRA can be determined by a site-specific risk assessment. Under CERCLA the

 cleanup levels are set on a case-by-case basis through risk analysis and ARARs review. The

levels are typically decided among all parties, and may not necessarily be consistent from 

site-to-site or from state-to-state. However, the state regulators must consistently apply 

ARARs to all sites (both Federally owned and privately owned) within a particular state.1,3,8,9

i. CERCLA and the NCP require public comments to be sought at the stage of the remedial action

plan, thus allowing comments on the RI/FS and on the proposed remedy. The lead Federal 

agency also submits the draft final ROD for public comments. Additional community relations

activities are encouraged in the NCP and EPA guidance and are a matter of policy within DOD.

RCRA requires that all permits and permit modifications be the subject of a public notice and

opportunity to comment, but has no comparable community relations program formalized in the

RCRA regulations. It should also be noted that DERP requires notice and consultation with 

Federal, state and local officials and the public at a number of project stages.1,2,3,6,8,9

j. While the CERCLA remedy selection criteria are not identical to the RCRA criteria, they 

address the same types of considerations and should generally result in similar remedies when 

applied to similar site conditions. 1,3

Pitfalls in choosing a remediation process

As previously stated, the remediation process for a particular site may be a complicated

legal matter for several reasons, including the NPL status of the site, the authorities of the 

state regulators, consideration of DERP requirements, etc. Thus, it is essential that the project

team include legal counsel when trying to determine the appropriate regulatory authorities at 

the site. In determining under which particular process to remediate a site, several 

non-tangible factors may also be worthy of consideration such as the potential threat to the

environment, health and safety concerns, response time, public perception, etc. 
13

Petroleum Contaminated Sites 

CERCLA specifically excludes petroleum products and constituents thereof from the

definitions of hazardous substance and pollutant and contaminant. However, DERP creates

authority to conduct cleanup of petroleum contaminated sites on active installations and FUDS

when there is an imminent and substantial endangerment to the public health or welfare or the

environment. 1,2

Many states have corrective action provisions within state regulations for active

underground storage tanks (USTs). There is a very specific set of regulations in RCRA. The 11

UST compliance program of RCRA is another program for which EPA may authorize states to

enforce the state program in lieu of the Federal program. Many states have been granted this

authority. Typically these regulations are implemented by the state or a local regulator. 

Figure 2 depicts the UST corrective action process.

The application of CERCLA or state UST requirements to Federal remediations,

regardless of NPL status, is a very complicated legal matter that must be discussed with your 

legal counsel.1,2,3

So what's the point?

To effectively work with the regulators, several principles should be kept in mind.

Principle #1. You must understand that environmental laws and regulations are complex, and 

projects may involve any number of difficult legal issues for resolution. It is important that 

you have a basic understanding of the environmental regulations and that you understand what 

is legally required versus what is guidance and policy. It is very important that you have a

 basic understanding of the various authorities of DERP, CERCLA and RCRA, as well as other

laws and regulations which may apply to remediation projects. It is also important that you

understand the basis of the implementing regulations.

Principle #2. It is important that you know which regulatory agency has the lead enforcement

authority at the site. Is the site on the NPL? If yes, the work is required to be conducted in

accordance with CERCLA. If the Federal agency which controls the property is the lead 

agency, consultation with EPA is required. DOD policy is that states will be included in the

process of consultation as long as they are willing to participate. Both the DERP and 

CERCLA statutes provide for state notice and consultation at designated phases of the response

process. 1,2

Principle #3. It is also important that the people meeting with the regulators understand their 

own project including all technical aspects. 
The Underground Storage Tank (UST) Release Reporting, Investigation 

and Confirmation Requirements” 

Within 7 days, investigate to confirm release I 

Test system, tank and delivery pipes. Perform Site Check, sample 

excavation zone, and UST site 

I Leak in UST 

Release confirmed 

I 

Repair, replace, upgrade system. Begin 

Corrective Action. I No further investigation is required. 

Note: This table applies to operating tanks which have been taken out-of-service after 1988, and not to older 

tanks. The response times are negotiable with the regulator based on a reasonable period under the circumstances. 

Figure 2 

14 
The Underground Storage Tank (UST) Release Reporting, Investigation 

and Confirmation Requirements” 

If the Release is confirmed.. 

Initial response within 24 hours: 

1. Must report release to Implementing Agency (IA)*. 

2. Take action to prevent further releases. 

Initial Abatement and Site Check. Within 20 days submit report to IA. 

1. Remove regulated substance from tank. 

2. Visually inspect releases and prevent migration. 

3. Monitor and mitigate free product, if applicable. 

4. Remedy hazards posed by excavated, contaminated soils. 

5. Quantify release. 

6. Investigate to determine possible presence of free product and begin 

free product removal and preparation of free product removal report. 

I 

Initial Site Characterization 

1. Data on the nature and quantity of the 

release. 

2. Data on surrounding population, water 

quality, etc. 

3. Results of Site Check. 

4. Results of Free Product Investigation. 

5. Submit report to the Implementing 

Agency 

(IA) within 45 days. 

Free Product Removal 

1. Conduct removal, minimizing spread of 

contamination. 

2. Use abatement as minimum design 

objective. 

3. Safely handle flammable products. 

4. Prepare a Free Product Removal Report. 

5. Submit report to the Implementing 

Agency 

(IA) within 45 days. 

Investigation for Soils and Groundwater Cleanup if required under the circumstances: 

1. There is evidence that groundwater has been affected by the release. 

2. There is free product. 

3. Contaminated soil is in contact with groundwater. 

4. IA requests investigation based on potential affects to nearby water resources. 

* Implementing Agencymay request more information or requeetpreparation of a Corrective Action Plan 

prior to remediation. The response times are negotiable with the regulator based on a reasonable 

period under the circumstancee. 

Figure 2 (continued) 

15 
While these principles seem obvious, they are very important. To hold effective and meaningful

discussions with regulators, it is essential that you and your team understand the ground-rules (the

environmental laws and regulations) and the technical aspects of the work.

Experience

One HTRW project manager observed that many installations have been in the

process of performing an RI/FS for sites when the states were granted corrective

action authority under RCRA. It seemed to the project manager that as a result,

states sometimes tried to enforce the corrective action program under RCRA,

even at an installation already performing CERCLA studies. In the past, an

installation may have redone the work in order to fit the RCRA requirements.

This increased the costs at the site as well as increased the time to remediation.

Lesson Learned

Now installations realize that a tri-party agreement, such as a Federal Facility

Agreement, incorporating the CERCLA and RCRA requirements is an

advantageous way to approach this problem. Or, as an alternative, installations

are requesting language be added to the corrective action section of their Part B

permits which effectively integrates the CERCLA/RCRA programs such that

work completed under CERCLA can also be used to fulfill RCRA corrective

action requirements. 1,3,12

Streamlining the remediation process

There are several ways to potentially streamline the remediation process through the

application of existing environmental regulations.

One such way is to use CERCLA removal action authorities. The NCP provides a

framework for the DOD to undertake removal actions at their facilities. The DERP statute

also provides for DOD to conduct emergency removal actions. Removal actions can be

conducted at NPL facilities, as well as non-NPL facilities. The use of removal actions may

facilitate remediation. It should be noted that there are EPA regulations pertaining to removal

actions in the NCP, and these regulations must be complied with during execution of a

hazardous substance response action, except that a DERP emergency removal action is

authorized under a separate legal authority.1,2,7

Site remediation can also be streamlined significantly through the use of the Superfund

16
Accelerated Cleanup Model (SACM). The purpose of SACM is to make remediation quicker

and more efficient. This is accomplished through more focus on the front end of the

Superfund process and better integration among the program components. The approach

involves a continuous process for assessing site conditions and the need for action, crossprogram coordination, prompt risk reduction through early removal and/or remedial actions

coupled with the appropriate long-term remediation. l3

SACM is intended to promote faster, more efficient remediation within the existing

framework of CERCLA and the NCP while ensuring that the remediation is still protective of

human health and the environment and that the appropriate public participation requirements

are fulfilled. SACM itself is not an authorized program under the NCP. SACM employs the

use of early actions, such as CERCLA removal actions, to achieve prompt risk reduction

coupled with the development of long-term actions to achieve complete risk reduction through

extensive remediation activities. The move towards early action at the site to control the risks

is a very good method of streamlining at both NPL and non-NPL sites.l3

Another way to speed up remediation is through the use of Presumptive Remedies.

The presumptive remedy approach is one tool of acceleration that may be used to expedite

remedy selection. Presumptive remedies are preferred technologies for common categories of

sites, based on historical patterns of remedy selection and EPA’s scientific and engineering

evaluation of performance data on technology implementation. The objective of the

presumptive remedies initiative is to use the program’s past experience to streamline site

investigation and speed up remedy selection. Over time, presumptive remedies are expected to

ensure consistency in remedy selection and reduce the cost and time required to clean up

similar types of sites. Presumptive remedies are expected to be used at all appropriate sites

except under unusual site-specific circumstances.14

The last way to streamline the remediation process is to use good engineering and

scientific judgement. Project personnel should meet together and plan for the future. The

project team should identify what is important to the installation or Civil Works facility

pertaining to the project and identify project goals. The project team and customer should

meet with the regulators to discuss the best approach to a plan for response action at the site.

Does the site require a removal action to eliminate current threats to human health and the

environment, or should the RI/FS process be initiated first to evaluate the contaminant

condition and assess risks at an appropriate level for the type of site involved? There is much

flexibility within the NCP. This flexibility should be explored to identify the best path for

remediation at your site. Engineering Manual 200-l-2, may provide useful guidance on the

establishment of goals and data quality objectives for a specific project.16

Experience

A HTRW project manager recalls that the state requested a report be prepared to

characterize the wastes at a pit that collected industrial waste water. The project

17
team prepared a small RI/FS for the site. The study took approximately one

year and cost about $50,000. The study concluded that the small pit should be

excavated and the wastes disposed of off-site at a cost of about $10,000.

Lessons Learned

It appears that this project would have been a good candidate for the

streamlining process of conducting a removal action under the NCP.1,6,13

When should communications with the regulators begin?

The first step in working with regulators is to establish an internal project team

including the project manager, an attorney and all other technical team members. If the work

is performed for a customer, the customer will probably identify the project team. It may not

always be necessary to include the entire team in every meeting, but all members should be

kept advised of developments in order to understand the overall situation when their

involvement is required. The team must determine who has what authority to act for the

agency on various issues, within delegation limitations. Clarification of the customer’s role

and the roles and authorities of the team should take place before significant contact with the

regulators takes place.

Upon the organization of an internal team, communication with the regulators should

begin. At the onset of a project, a very helpful practice is to perform a preliminary site visit

with the regulators. At this point, just walk around the site and discuss in broad terms what

will probably need to be accomplished at the site.

The purpose of the site visit is really two-fold. Yes, it is obviously to visit the site, but

the other very important purpose is to meet the regulators early in the project phase. So, by

all means invite both the state and Federal regulators. If a single regulatory agency contact has

been identified, where it makes sense, ask the contact to also invite regulators from both the

RCRA and CERCLA offices, as well as any other office which may have a role in the

remediation work. Open the lines of communication early and try to get all the involved

parties there onsite in order to do the walk-through and in order for you to get a preliminary

feeling for the regulator’s point of view about the site.

Experience

An installation environmental coordinator recalls that as part of the Installation

Restoration Program, letters were sent to the regulatory agencies inviting them

to participate on the “technical review committee.” The local air quality district

received the letter and decided to send a representative from their enforcement

section. During the first meeting, a briefing was given which described

suspected releases for each site and the corresponding environmental concerns.

18
19

Because there was no early involvement with the regulators and no preestablished dialog between the installation and the regulatory agency regarding 

the "spirit of cooperation" that this meeting was intended to be based upon, the

inspector was still operating in an enforcement capacity and began issuing 

notices of violation based on information presented during the meeting. 

 Lesson Learned

It is important to get the regulators involved early in the process. It is also

important that the regulators understand their role and why their participation

was requested. 

Once the initial site visit is performed it will be necessary to define the applicable legal

authorities for the site. At this point it is important to try to determine under which regulatory

program cleanup will most likely proceed. It is also important to define the lead regulatory

agency/agencies at the site. In certain cases, this may be a very complicated legal matter. But 

the goal at this point is to chart a course for how the team thinks the project should proceed 

based on project requirements and regulatory requirements. Obviously, it will be necessary to

work with your legal office during this process.

 

After determining which state and/or Federal regulations potentially apply to the site, 

and which regulators will probably have enforcement authority at the site, it is necessary to

discuss this perspective with the regulators themselves. This is important so that the regulators

understand how the work will proceed at the site and why. Also, if the regulators do not 

agree with the regulatory authorities you are proceeding under, discussions can be held to 

resolve preliminary differences. 

An agreement should be prepared to document these decisions as these are decisions 

that if changed can alter the course of the entire project. Active military bases and Civil 

Works facilities on the NPL will enter into a Federal Facility Agreement (FFA) to basically

outline the procedures for conducting the work and the procedures to carry out the consultation

process among the involved agencies. On non-NPL sites, consideration should be given to at

least documenting minutes of meetings with regulators and stakeholders. Minute meetings 

should be forwarded to all parties in order to document the discussions and decisions. Any

such correspondence must be coordinated with your agency counsel.

 Experience

An installation environmental coordinator describes a situation where an UST

leaked into an isolated area where, because of salt water intrusion, there was no

possibility of the aquifer ever being used as a drinking water source. Because 

the geology was such that contamination was not migrating and posed no threat, 
the local water district wanted to use the site to conduct a long-term study on

natural degradation. Representatives from the regulatory agency, the water

district, and the installation met and decided that the installation could delay

taking any action on the site to enable the water district to conduct their study.

Over the next few years, there were personnel changes at both the installation

and the regulatory agency. Because neither the new installation representative

nor the new regulatory representative were aware of the agreement, a notice of

violation was issued to the installation for failure to remove the free-floating

product in accordance with the regulations.

Documenting the agreement between the installation, the regulatory agency and

the water district to delay remediation would have prevented the regulatory

agency from issuing a notice of violation. The agreement would have served as

a historical record of site events.

Lessons Learned

Documenting the decisions and/or agreements, and communications among all

parties is extremely important. The project team, including counsel, need to

understand the environmental laws and the regulatory authorities of the local,

state and Federal agencies in order to effectively discuss these matters with the

regulators.

Who’s who?

Understanding the roles of the various regulators is very important. There are

regulators at the Federal, state and sometimes local levels, and each has specific roles and

responsibilities associated with enforcing their particular regulations.

It is important to realize that the mission of the regulators is to ensure compliance with

their respective environmental regulations. This is as it should be since the public has

entrusted these regulators with the protection of their health and environment. In this role, the

regulators must do their job and enforce the applicable environmental regulations upon the

regulated community.

Our goals are similar in that we too are trying to be protective of human health and the

environment. However, we are the regulated community. While trying to achieve our goal,

there are practical considerations and limitations such as time, resources, money, technology,

etc. that sometimes hamper our expeditious achievement of cleanup. These are simple facts

that must be realized by all parties.

20
21

 Experience

A HTRW CX regulatory specialist describes the predicament in which the 

wrong office was asked about a specific regulatory interpretation. For example, 

there may be a need to ask EPA a regulatory question, however, should the 

CERCLA regulator be asked the question or should the question be posed to the 

RCRA regulator.

For example, while performing CERCLA work onsite, a CERCLA EPA 

Remedial Project Manager (RPM) was asked if the contractor could discharge

well-development water containing F-listed wastes to the military sanitary 

sewerage plant. The CERCLA RPM said that it would be fine as far as he was 

concerned. Prior to allowing the discharge, the Corps project engineer 

contacted the state RCRA office for guidance. The state RCRA office 

representative said that discharging F-listed wastes off the CERCLA site to the 

sanitary plant may be a violation of RCRA regulations and the installation 

definitely should not allow that operation. If the contaminated water had been 

discharged to the sanitary plant, the RCRA state enforcement office may have 

required RCRA corrective action at the plant under their regulation. 

Lesson Learned 

Due to the complexity of environmental regulations, most regulators are very

narrow in their field of expertise. The regulators in the CERCLA office are

knowledgeable about the CERCLA requirements. The regulators in the RCRA

office are knowledgeable about RCRA hazardous waste requirements; the 

people in the state water offices are knowledgeable about the state's water 

regulations, etc. Make sure that your questions are being coordinated with the 

right regulators. 

It is imperative that if the FFA, IAG, or DSMOA designates a single regulatory agency

contact, use that single contact and request the contact coordinate with the other

appropriate regulatory offices.

In summary, it is important to ask the right people the right questions if you expect to get

the right answers. This is only common sense; however, this is why it is so important to 

know which regulators you are working with, as well as their respective regulatory roles and

responsibilities. Never underestimate the importance of this information. If a regulatory 

agency has designated a single point of contact, make sure that your contact asks the right 

people the right questions. 
22

What is "negotiable"?

There are many state and Federal environmental laws and regulations. However, the laws

and regulations are not necessarily what causes conflict among the regulators and the 

regulated community. Many times the conflict arises in their application. While the laws and

regulations are not negotiable, sometimes the interpretation of the laws and regulations as well 

as the application of policy and guidance may not be straight-forward or clear. There will be

cases in which a regulator interprets the laws and regulations differently than the Corps. You

should not just go along with the regulator's interpretation. You should seek a legal opinion 

from your counsel as to the appropriate interpretation. Upon review, if your interpretation

appears to be correct, your interpretation should be presented to the regulators along with the

reasoning. Many times, the regulators will accept your interpretation, or they will seek a legal

opinion from their attorneys. And, this may be good as the true requirements will probably

prevail.

 Experience

During the course of a scoping meeting at an installation in the northwest, the

HTRW project manager relates that the state regulators said that they wanted the

Corps to drill to groundwater in order to analyze the groundwater. The technical

staff explained that it was approximately 1000 feet to groundwater through nonporous materials, thus from a technical perspective groundwater contamination

from this site was not probable. The regulators insisted that the Corps drill to

groundwater. Corps representatives explained that by drilling to groundwater, the

aquifer could possibly become contaminated as a conveyance for the

contamination to reach the groundwater would be established.

As the conversation proceeded, someone specifically asked the regulators for the

regulatory reference that required groundwater sampling. At that point, the

regulators said there was no regulatory requirement, however it would be good

information to have. The installation said they would take that under 

advisement, however at this time they would not include the requirements in 

their scope.

 Lesson Learned

It is important to sort out actual regulatory requirements from regulator’s

interpretations.

Negotiations should also take place before a FFA or Interagency Agreement (IAG) is

signed. DOD has a model FFA to which some states and EPA have agreed, and some 

provisions in that model are mandatory. Other provisions are negotiable. Formal negotiations 
23

of FFAs and IAGs should be conducted and agency counsel will lead the negotiating team. It 

is critical that the technical staff be included in drafting the work requirements and schedules 

as well as other aspects. 

Experience

 Project managers have experienced that the dates in FFAs are sometimes

negotiable. If the state regulators say they want comments responded to in two

weeks, you should explain to the regulators that a contractor responds to all

comments and because of the scope modification process, two weeks is not a

feasible time allotment. If the installation is left to negotiate agreements without

input from their service agent on the draft agreements, the Corps may be put

into a very difficult position. 

 Lesson Learned

Federal Facility Agreements and other similar agreements are probably 

negotiable, and information should be gathered to support negotiations.

Comments are also negotiable. Not all regulator comments must be accepted, but if 

those comments are not accepted, proper regulatory basis and technical merit must stand 

behind your justification. Do not make the mistake of just ignoring a comment. If you do not

include a comment, provide the reasons the comment was not incorporated.

Who should meet with the regulators?

Prior to meeting with the regulators, the Corps project team and the customer should 

meet to discuss their positions. This meeting should include technical specialists, managers, 

decision makers, public affairs representatives, and attorneys. This internal meeting is essential 

in order to provide a united front during negotiations with the regulators. Internal consensus

must be achieved on the issues.

After the internal meeting is concluded, the project manager will usually be designated 

to represent the group during regulatory meetings and agency counsel will represent the project

team in the event of legal issues or disputes. The project team, including the project manager,

technical staff and counsel, can only act within their actual authority, and should be fully 

familiar with the technical aspects of the project, as well as the applicable legal and regulatory

requirements. 

Contractors should never be sent to meet with the regulators alone. The contractor may

be present at the internal meetings for technical support and to provide their expertise unless
24

agency counsel objects for legal reasons. However, during formal negotiations the contractor 

may be in attendance, but should not be an active participant in the negotiations.

If you are having problems communicating with the regulators you may want to bring 

in a neutral facilitator. Agency counsel should take the lead in any sort of formal dispute

resolution, as there may be processes already established in an FFA or in the DSMOA or

otherwise which are mandatory, and there may be potential implications to legal positions or

policy which require counsel involvement. 

Is there really a Win-Win Situation?

It is important to realize that when the regulated community is working with regulators

and the public, there is really no such thing as a "win-win" situation. "Win-win" implies that 

all parties get exactly what they want from the negotiations. Realistically, this can never be

accomplished as the initial goals are not all the same. What should be strived for is a mutualgains approach, whereby all parties gain from the outcome.

The Mutual-Gains Approach

 

It is important that all parties decide what minimum acceptable outcome they will 

accept from the negotiations. All parties should establish the Best Negotiated Alternative

Position (BNAP). This is defined as essentially the “optimal, realistic alternative you will 

accept as a result of negotiations.”

Prior to negotiations with regulators, the Corps and their customer should establish a

BNAP. The BNAP should be a well thought-out position that will be acceptable as a 

negotiable position in order to partially satisfy all parties involved.

Obviously, the regulators and stakeholders also have BNAPs. But their BNAPs may 

not be clear, thus it is necessary for negotiations to ensue until their BNAPs, as well as yours, 

are fulfilled. Obviously a primary point in effectively working with regulators is for you to

determine their BNAP, their real desires and goals for the project, early in the negotiation 

process.

Using a mutual-gains approach, everyone's goal is to improve their BNAP, instead of

having one person gain everything and the others lose everything. The mutual-gains method 

of negotiating should render an outcome where all parties have improved upon these minimally

acceptable positions, their BNAPs.
25

 Experience

A project engineer recalls that though contaminated soil at an NPL site was

considered "low-risk," the high cost incinerator option was being pursued over 

the lower cost landfilling option because of the perception that permanent 

treatment was required by EPA.

CERCLA Section 121 establishes nine criteria which must be considered in the

selection of all remedies. CERCLA does include a preference for treatment 

which reduce the volume, mobility or toxicity or hazardous substances, and it 

also mandates that every remedy selected be cost effective. Additionally, there 

is discussion in the preamble to the NCP which states, "...cost effectiveness is 

established as a condition for remedy selection, not merely as a consideration 

during remedial design and implementation."

 Lesson Learned

By using the mutual-gains approach, the Corps secured a protective and cost

effective solution while the regulators and the public secured a faster and 

equally protective alternative. While the regulators wanted incineration, the 

cost/benefit ratio of that remedy did not support selection of the expensive 

technology of incineration over landfilling due to the fact that the soil posed a

very low risk to the environment and the evaluation of the remedy selection criteria

established that the lower cost remedy would meet all the criteria. Thus through

negotiations and review of the remedy selection criteria, the regulators and Corps 

reached an agreement acceptable to all parties.

Helpful Hints 

When working with regulators through the mutual-gains approach, several rules are

presented for consideration:

Hint #1. Look upon all meetings with regulators as a mutual-gains situation. Everyone cannot

get what they want, but everyone can get satisfaction with respect to their BNAP.

Hint #2. Work with your customer to establish the BNAP before meeting with the regulators

and/or stakeholders. Make sure everyone is in agreement as to what you are willing to accept 

and why, as well as what you are willing to concede to and why. Determine from the 

counsel team member the various authorities of all the team members, as well as the 
26

limitations on those authorities.

Hint #3. Your goal throughout negotiations is to try to improve upon your BNAP as well as 

their BNAP within the appropriate constraints, such as regulatory, legal and funding 

constraints.

Hint #4. Before meetings with the regulators and stakeholders, develop alternatives/options 

that will meet your interests as well as their interests. Do not be afraid to offer suggestions.

Hint #5. Use the project team’s knowledge of the laws, regulations and technical requirements

effectively in the discussions in order to achieve the desired outcome. Discussions should be

objective and truthful.

Hint #6. Negotiate as if relationships mattered. 

Relationships do matter

When working with regulators, relationships do matter. There should be mutual,

professional respect and trust between the regulators and the Corps personnel, whenever 

possible. It is important that those negotiating respect and trust each other. It is only natural 

that if the regulator and you have a good working relationship based on mutual trust, honesty 

and professionalism, then negotiations will be more natural and easier. This trust and respect

must be true and sincere.

Where does this trust come from? It is important to be honest and forthcoming with 

the regulators. For example, if you do not understand the regulations, ask for their assistance 

and recommendations. If there is an environmental violation that you are aware of, do not try 

to cover it up, present your problem to the regulator through your proper chain-of-command 

and ask for their assistance in correcting the problem. If you cannot correct the problem at 

your organizational level, for whatever reasons, elevate the problem. One of the many 

lessons learned from the Aberdeen court case is the importance of elevating the problem up 

your organizational chain-of-command.

Do not jeopardize long-term relationships by pushing too hard for short-term gains. 

Consider the big picture. Maybe you can give up something now in order to gain something 

in the future. But, this must be a conscious decision.

So, basically there are two fundamental principles that are important here:

Principle #1. Trust, respect and professionalism are important elements in effectively working

with regulators.
27

Principle #2. Honesty is not only the best policy, but the only policy. Negotiate honestly.

Obviously, this mutual trust and respect cannot be forced. There will be situations 

where this atmosphere cannot be obtained, but nevertheless everyone must try their best to 

work cooperatively together for the sake of the project.

Regulators' responsibilities

For the Corps to effectively deal with the regulators, it is important to understand their

roles in the remediation process. 

The regulators are essentially the defenders and protectors of the environment and the

health of society. This role is monumental, thus regulators may be conservative in their 

decisions to ensure that those decisions are fully protective of human health and the 

environment.

The regulators are also entrusted by all of us to enforce the regulations. As taxpayers 

and consumers, we want agencies such as the US Department of Agriculture (USDA) to 

inspect meat and cite industries for improper sanitary and handling procedures. Thus, the 

USDA must enforce their regulations. If you lived next to an incinerator, as a taxpayer and

nearby resident you would want, if not demand, EPA to enforce their air and waste 

regulations. When remediating hazardous waste sites, we must expect and accept the 

regulator's role as an enforcement agency and protector of the environment.

The role of stakeholders

Everyone involved in an environmental project is important to the decision-making

process. The stakeholders, the community, tribal nations, environmental groups, etc., are all 

vital players in negotiations. Through the use of Technical Review Committees (TRC),

Restoration Advisory Boards (RABs), and the public participation requirements of many

regulations, stakeholders will have a means to be formally involved in the decisions made at 

the site. 1,2

You must also effectively communicate with the stakeholders. Like the regulators, they

will have goals and BNAPs. It is very important to understand their goals and BNAPs in 

order for you to effectively communicate with them. Public affairs representatives can be a

valuable source of information on how to work and communicate effectively with the public.

 Experience

An NPL site was determined by EPA to require remediation due to elevated 
28

lead levels in a residential community. As an outcome of the CERCLA 

process, a determination was made to excavate the soils. The regulators were 

met with strong public opposition to this action because results of blood analysis 

of neighborhood residents did not indicate elevated blood lead levels. 

Furthermore, residents expressed concern that dust generated during the 

remediation process would cause more harm than leaving the soil in place.

The citizens protested the response action and upon further studies the regulators

concluded that leaving the soil in place would be acceptable. The stakeholders 

had a definite interest in this area, as the area is not only their home, but 

provides recreation which is their major revenue.

Lesson Learned

The public, as stakeholders, play a definite role in the decision-making process. 

The laws and regulations prescribe certain times during the regulatory process when 

public participation is required. These designated times may be suitable, however the project

team and customer may decide to bring in the stakeholders at early junctures in the regulatory

process. For example, stakeholder’s concerns are not necessarily taken into consideration 

during the preparation of a risk assessment or the RI/FS, however, these concerns may be vital 

in the decision making process. Their concerns may be voiced at public meetings, but many 

times their concerns should be heard prior to making a decision. Department of Army (DA)

regulation fully supports public involvement in restoration activities. The appropriate public 15

affairs representative can assist in public participation responsibilities.

 

Politics do matter

During site remediation, a contributing factor in the remediation process may be

politics. This factor can be defined as "the influence select people have over a project when 

the outcome is not apparently based on science or technology." 

If public stakeholders feel they have limited voice in the decision-making process, they 

will rely on political representatives to defend their interests. While this may not seem 

legitimate to you, it is tremendously effective. The best defense is to ensure public 

stakeholders are active and early participants in the dialogues with decisions makers.

It is important for everyone on the project team, both Corps and customer, to 

understand that politics do play an important role in remediation work. This is an 

indisputable, and in some cases, an unavoidable factor. Some decisions made during the
29

remediation process may be influenced by politics. It is important to realize why and when 

this is occurring and to ensure that while that influence has been used, the project still meets 

all other technical, engineering, scientific, regulatory and legal requirements. 

 

Communicating with customers

Sometimes the situation may arise where the regulator has made an interpretation that

seems inappropriate. After discussions with legal staff, the Corps may not agree with the

regulatory interpretation presented by the state or EPA. The customer, however, is reluctant 

to really discuss the difference of opinion with the regulators because the regulators may 

perceive this as confrontational. The Corps representatives are then left in a very awkward

position since they were hired by the customer for their expertise, but the customer at this

juncture does not want this expertise. 

 Experience

At a site on a Federal facility, high levels of dioxin were discovered that 

prompted CERCLA remediation. The state was insisting that the dioxin was a 

listed hazardous waste. The Corps representative disagreed with this 

interpretation as there were no records and no information discovered during the 

study phase of the project to make that determination. The facility 

representative did not believe the dioxin was listed waste either, but they did not 

want to question the regulators because it really did not seem to be a "battle 

worth fighting" since only five drums were to be transported offsite for 

disposal. So, the drums were transported offsite as listed dioxin wastes.

About six months later, the Corps began remediation work at an adjacent area. 

During the investigations, dioxin was discovered. Again the state applied the 

listed waste code, while there was no supporting evidence to substantiate the 

listing. Applying the listed waste code here severely increased the remediation 

cost since the RCRA land disposal regulations became ARARs and incineration 

was the required technology for listed dioxin wastes under the regulations 

existing at that time.

Lesson Learned

While it seemed harmless to apply the listed waste code to those first five drums 

of dioxin contaminated soils, this set a precedence for all the dioxin wastes 

found at the site. It was very hard to argue that the second site was not listed

 waste when the project team did not argue about the listing applied to the first 

site. This established a very expensive standard for that facility. 

Through good negotiations, the state regulators re-evaluated their original 
30

position and declared that indeed the dioxin was not listed. If there are

disagreements of these sorts, it is very important that the long-term 

ramifications of the various alternatives be considered for all future actions.

Sometimes, a customer will agree to regulatory requirements because they do not

understand the future ramifications of the application of the interpretation. Corps 

representatives have the advantage of having worked on many HTRW sites, in many states, 

with many different customers, under varying situations. The experience base is very broad. 

When a Corps representative finds himself/herself in this situation, they can only try to assist 

the customer in understanding all the future possible ramifications that may be encountered if 

the regulatory requirement was accepted without discussing their concerns with the regulators. 

Regardless of the decision the customer makes, the Corps representative should always

document, in writing, important regulatory decisions including what decision was made and 

why the decision was made. 

Documenting agreements

Whenever an agreement is reached, it should be documented. Documentation should 

not only occur in the form of a FFA or an IAG, but small agreements should be documented 

in the form of letters and memorandums. The reasons the decisions were made should also be

well documented.

Experience

A Corps construction representative recalls that at one site the interagency

agreement with EPA established time frames by which certain key documents 

were to be submitted for review. According to the agreement, stipulated 

penalties would be assessed upon failure to submit documents by the specified 

dates. There were, however, provisions in the agreement for obtaining 

extensions. When it was realized that a deadline could not be met, the project 

manager contacted the EPA counterpart to discuss an extension. The EPA 

counterpart agreed that an extension was justified, however, the project manager

 failed to formalize the extension by submitting a written request to EPA, as 

required by the initial agreement. EPA subsequently assessed penalties for 

failure to submit the document by the specified date.

 Lesson Learned

All agreements should be documented and if possible signed by all parties 
31

involved in the agreement. All communications and agreements or 

disagreements should be put in writing, signed by the appropriate officials, and 

copies furnished to all parties through the designated representative. 

Revisiting decisions

Not all decisions will be permanent and final. Often regulators are criticized because 

they change the decisions. If all decisions are documented, the regulators will be less likely to

attempt to modify them if the decisions do not warrant modification.

There may be occasions when the decision will have to be revisited. Site conditions 

may change, laws or regulations may change, technologies may change. When change is

warranted, negotiations should be reopened and the original decision should be discussed in 

order to insure that it still remains the optimal decision for all parties involved. When a new

decision is reached, it should, of course, be documented.

Change must be accepted as inevitable on HTRW remediation sites. Certain legal

modifications will require the implementation of formal negotiations among the customer and the

regulatory agencies.

The formal negotiation process

This document was intended to discuss and provide examples of how the project team

(Corps and customer) can better communicate on a daily basis with the regulators in order to

accomplish the long-term goal of site remediation. In today’s atmosphere of increasing

constraints, decreasing budgets and people-power, it is essential that the regulated community 

and the regulators work together to be more effective and efficient. This document is not

intended to provide legal advice on how to conduct formal negotiations of legal requirements 

or legal documents such as FFAs. Any discussion pertaining to formal negotiations should be

taken directly to the appropriate office of counsel.

In the end...

The laws and regulations are very complicated, dynamic and ever evolving. At the 

time this pamphlet was drafted, both CERCLA and RCRA were scheduled for reauthorization. 

Thus, there is no way to adequately depict the future cleanup requirements for Federal 

facilities.
32

In any event, working with the regulators adds a challenging dimension to your

remediation task. There are certain facts that upon acceptance may make your job a little 

easier.

 In summary, the following suggestions are submitted for your consideration:

Summary of the Basic Principles for Effectively Working with State and

Federal Regulators 

1. Project requirements are based on good science, good engineering, and the

laws and regulations. Know your project and the regulations.

2. You must ask the right regulator the right question to get the right answers. 

Make sure you know the authorities of the regulators with whom you are 

working.

3. The regulators must be involved in the project. Involve them early. 

4. Streamlining is best for the Corps, the customers, the regulators, and the

stakeholders.

5. When working with regulators the best results can be obtained when there is 

mutual honesty, trust, respect and professionalism. Build those bridges for a 

better project. 

6. Communicating effectively takes technical knowledge of the project as well 

as knowledge of the legal and regulatory requirements. Send only 

knowledgeable people to meet with the regulators.

7. Federal Facility Agreements are negotiable. Formally negotiate before 

signing agreements.

8. The meaning of regulations may not be clear. Communicate clearly the

perceived requirements.

9. The Corps, the regulators, the public, the environmental groups, tribal members,

and the customer cannot all get exactly what they want. Work together to optimize 

and obtain the best negotiated alternative for all involved parties.
33

10. Relationships do matter. 

11. Public participation is a requirement of CERCLA, DERP and RCRA. 

Involve the public early and often in open dialogue on cleanup decisions. The 

public is a critical factor in the decision-making process. 

12. Accept and respect the regulators as protectors and enforcers.

13. Politics do play a role in the decision-making process. Accept that reality. 

14. When decisions are made, take the time to document those decisions. 

Documenting all decisions will save time and money in the long run.

15. Do not be afraid to revisit a decision. Be prepared to revisit some 

decisions if technically necessary, legal and appropriate. Negotiate and 

document any changes.

This guidance document was written to provide ideas to Corps persons having to work

with state, Federal, and local environmental regulators. Effectively communicating and 

working with regulators is not always an easy task. It takes professionalism, honesty, 

technical ability, knowledge of environmental laws and regulations, and good communication

skills to be effective in this area, and to make each job a success story. Remember, as stated 

in the beginning of this document, we the Corps project team, our customers, the regulators, 

the public, and the stakeholders are all in pursuit of a common goal ... the cleanup and 

protection of our environment and the protection of everyone's health!

 

 
Appendix A

References

1. The Comprehensive Environmental Response, Compensation and Liability Act of 1980

(CERCLA) as amended.

2. The Defense Environmental Restoration Program is governed by 10 USC 2701 et seq.,

which was originally enacted as section 211 of SARA.

3. The Resource Conservation and Recovery Act of 1976 (RCRA) as amended by the

Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 USC 6901 et seq. RCRA was

enacted in 1976 and completely replaced the previous language of the Solid Waste Disposal

Act of 1965.

4. The Clean Air Act as amended, 42 USC 7401-7671q.

5. The Clean Water Act as amended, 33 U.S.C.A. 1251 et seq.

6. The National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR

Part 300.

7. Executive Order (EO) 12580 on Superfund Implementation (January 23, 1987).

8. “Corrective Action for Solid Waste Management Units (SWMUs) at Hazardous Waste

Management Facilities”, Proposed Rule, 55 Federal Register 30798, July 27, 1990.

9. “Corrective Action for Releases From Solid Waste Management Facilities”, Advanced

Notice of Proposed Rulemaking, 61 Federal Register 19432, 1 May 1996.

10. Reference 16 January 1997 telephonic inquiry to RCRA/CERCLA hotline. As of June 30,

1996 the hotline representative reported that 30 states have been delegated authority for 40

CFR 264.101(a) and (b). As of the same date, 29 states have been delegated authority for 40

CFR 264.101(c).

11. Technical standards and corrective action requirements for owners and operators of

underground storage tanks, 40 Code of Federal Regulations part 280.

12. “Coordination between RCRA Corrective Action and Closure and CERCLA Site

Activities”, EPA Memorandum from Steven A. Herman, September 25, 1996.

13. “Piloting the New Superfund Accelerated Cleanup Model (SACM). . .aka The New

A-l
Superfund Paradigm”, EPA Memorandum from Richard J. Guimond dated March 10, 1992.

EPA Briefing, March 1992.

14. “Presumptive Remedies: Policy and Procedures”, OSWER Directive 9355.0-47FS, EPA

540-F-93-047, September 1993.

15. “Environmental Protection and Enhancement”, Army Regulation 200-l.

16. Engineer Manual 200-l-2, “Technical Project Planning Guidance for HTRW Data Quality

Design”, U.S. Army Corps of Engineers publication.

A-2
B-1

Appendix B

List of Acronyms

ARAR Applicable or Relevant and Appropriate Requirements

BNAP Best Negotiated Alternative Position

CERCLA Comprehensive Environmental Response, Compensation, and 

Liability Act as amended

CFR Code of Federal Regulations

CMI RCRA Corrective Measures Implementation

CMS RCRA Corrective Measures Study

CWA Clean Water Act

CX Center of Expertise

DA Department of Army

DERA Defense Environmental Restoration Account

DERP Defense Environmental Restoration Program

DOD Department of Defense

DOE Department of Energy

DSMOA Department of Defense-State Memorandum of Agreement

EE/CA Engineering Evaluation/Cost Analysis

E.O. Executive Order

EPA Environmental Protection Agency

IA Implementing Agency

IAG Interagency Agreement

FFA Federal Facility Agreement

FUDS Formerly Used Defense Sites

HRS Hazard Ranking System

HSWA Hazardous and Solid Waste Amendments

HTRW Hazardous, Toxic and Radioactive Waste

HWM Hazardous Waste Management

MCS Media Cleanup Standards

NCP National Contingency Plan

NPL National Priorities List

NRC National Response Center

PA/SI Preliminary Assessment/Site Inspection

PRP Potentially Responsible Party

RAB Restoration Advisory Boards

RCRA Resource Conservation and Recovery Act as amended

RFA RCRA Facility Assessment

RFI RCRA Facility Investigation

RI/FS Remedial Investigation/Feasibility Study

ROD Record of Decision

RPM Remedial Project Manager
B-2

SACM Superfund Accelerated Cleanup Model

SARA Superfund Amendments Reauthorization Act

SI Site Inspection

SWMU Solid Waste Management Unit

TRC Technical Review Committee

TSDF Treatment, Storage, and Disposal Facility

TQM Total Quality Management

US United States

USC United States Code

USCA United States Code Annotated

USDA United States Department of Agriculture

UST Underground Storage Tanks