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RCRA and its Relationship to Other Environmental Statues SECTION VI SECTION VI

Chapter 2: Superfund: The Hazardous Waste Cleanup Program

CHAPTER 2

SUPERFUND: THE HAZARDOUS WASTE

CLEANUP PROGRAM

health and the environment. CERCLA, on the

other hand, is relevant primarily when

mismanagement occurs or has occurred (i.e.,

when there has been a release or a substantial

threat of a release in the environment of a

hazardous substance, or of a pollutant or

contaminant, that presents an imminent and

substantial threat to human health). More

specifically, RCRA authorizes a general regulatory

program to manage all hazardous wastes from

cradle to grave (i.e., from generation to ultimate

disposal), while CERCLA authorizes a number of

government actions to remedy the conditions that

could result in a release or the effects of a release

itself. While the two programs use parallel, but

not identical, procedures, both RCRA and

CERCLA authorize EPA to act in the event of an

imminent hazard.

In this chapter...

Overview........................................................... VI-11

Definitions ......................................................... VI-12

History and Purpose of CERCLA ..................... VI-12

Trigger for Statutory Response ........................ VI-13

Types of Response Actions .............................. VI-14

RCRA and Remedy Selection Under

CERCLA ........................................................... VI-15

RCRA Corrective Action vs. CERCLA

Response ......................................................... VI-15

Imminent Hazards Under RCRA and

CERCLA ........................................................... VI-17

Summary .......................................................... VI-17

OVERVIEW

This chapter focuses on the Comprehensive

Environmental Response, Compensation, and

Liability Act, which is a central part of the

legislative framework for environmental

protection. CERCLA is also known as Superfund.

CERCLA is designed to remedy the mistakes in

hazardous waste management made in the past,

while the RCRA waste management standards are

concerned with avoiding such mistakes through

proper management in the present and future.

RCRA mainly regulates how wastes should be

managed to avoid potential threats to human

RCRA VS. CERCLA

RCRA mainly regulates how wastes

should be managed to avoid potential

threats to human health and the

environment. CERCLA, on the other

hand, comes into play primarily when

mismanagement occurs or has occurred

(i.e., when there has been a release or a

substantial threat of a release in the

environment of a hazardous substance or

of a pollutant or contaminant that presents

an imminent and substantial threat to

human health).
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 SECTION VI SECTION VI RCRA and its Relationship to Other Environmental Statutes

Chapter 2: Superfund: The Hazardous Waste Cleanup Program

In addition to hazardous substances, CERCLA

addresses pollutants and contaminants, which

are broadly defined to include any substance that

is reasonably anticipated to cause illness or

deformation in any organism. All three definitions

specifically exclude petroleum and natural gas.

HISTORY AND PURPOSE OF CERCLA

CERCLA was established in response to the

discovery, in the late 1970s, of a large number of

abandoned, leaking, hazardous waste dumps that

were threatening human health and

contaminating the environment. One of the best

known dumps was Love Canal in Niagara Falls,

New York, where a chemical company had buried

large amounts of hazardous waste in a canal

originally designed to transport water. After the

canal was capped with clay and soil, an

elementary school was built over the site, and the

city of Niagara Falls grew rapidly around it.

In the 1970s, an unusual number of

community residents (especially those who

attended the elementary school) developed

serious health problems. Moreover, the residents

complained of noxious fumes and of chemicals

oozing out of the ground. Subsequent

government investigations found extensive

contamination of the area, including ground water

supplies. In 1978, President Carter declared Love

Canal a federal disaster area, and most of the

residents in the area around the site were

relocated.

At the time, declaring the site a federal

disaster area was the only viable option available

to the federal government. RCRA did not provide

relief because the problem did not involve the

current or future management of wastes. Legal

actions against the responsible parties did not offer

a solution because such action was too time

consuming and costly. Unfortunately, subsequent

investigations indicated that the scope of the

This chapter discusses why CERCLA was

enacted, summarizes some of the Statute’s

authorities, and examines the major areas where

the CERCLA and RCRA programs interact.

DEFINITIONS

RCRA and CERCLA both address hazards to

the environment. However, CERCLA is the more

comprehensive statute. CERCLA hazardous

substances encompass RCRA hazardous wastes, as

well as other toxic pollutants regulated by CAA,

CWA, and TSCA. Thus, all RCRA hazardous

wastes may trigger CERCLA response actions when

released into the environment. RCRA

nonhazardous solid wastes, on the other hand, do

not trigger CERCLA response actions unless they

present an imminent and substantial danger as

pollutants or contaminants (see Figure VI-3).

CERCLA hazardous substances encompass RCRA 

hazardous wastes as well as other toxic pollutants 

regulated by CAA, CWA, and TSCA. RCRA 

nonhazardous solid wastes do not trigger CERCLA 

response actions unless they present an imminent and 

substantial danger to human health and the 

environment as pollutants or contaminants.

Hazardous Substances

CERCLA

Hazardous

Wastes

RCRA Subtitle C

Solid Wastes

RCRA Subtitle D

Figure VI-3:

RELATIONSHIP BETWEEN

CERCLA HAZARDOUS SUBSTANCES

AND RCRA HAZARDOUS WASTES
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RCRA and its Relationship to Other Environmental Statues SECTION VI SECTION VI

Chapter 2: Superfund: The Hazardous Waste Cleanup Program

liability on those responsible. This “Super Fund”

consisted primarily of tax assessments on oil and

designated chemicals.

During the five-year period of the original

CERCLA program, two facts became increasingly

clear: the problem of abandoned hazardous waste

sites was more extensive than originally thought,

and its solution would be more complex and time

consuming. Unlike RCRA response actions where

the owner and operator of a site are known,

CERCLA may deal with environmental threats due

to activities conducted long ago, thus the

responsible party may be unknown, no longer in

existence (e.g., a defunct company), or unable to

pay. To address these additional concerns, SARA

not only extended CERCLA for another five years,

but increased the fund from a total of $1.6 billion

to $8.5 billion. SARA also established new

standards and schedules for site cleanup and also

created new programs for informing the public of

risks from hazardous substances in their

community and preparing communities for

hazardous substance emergencies.

TRIGGER FOR STATUTORY

RESPONSE

CERCLA response authorities are triggered by

a release or a substantial threat of release of

dangerous substances into the environment (e.g.,

a chemical spill from a tank truck accident or a

leak from a damaged drum). The release must

involve either:

• A hazardous substance, as defined in the

Statute

OR

• A pollutant or contaminant that may present

an imminent or substantial danger to public

health or welfare.

SUPERFUND REAUTHORIZATION AND

TAXING AUTHORITY

SARA not only extended CERCLA for another five

years, but increased the Fund from $1.6 billion to

$8.5 billion. The taxing authority of SARA was to

expire on December 31, 1991; however, the

Omnibus Reconciliation Act of 1990 extended the

taxes without modification for four years, through

December 31, 1995. Separately, the Superfund

program was reauthorized, without changes to the

text of the Statute, until September 30, 1994, a

three-year extension from the expiration date of

the SARA authorization in 1991. Congress failed

to reauthorize the Superfund program before

September 30, 1994 (the end of the fiscal year),

however, the program is still operating because

funding continues to be appropriated to the

Superfund program. In the future, the Superfund

program may be reauthorized and the taxing

authority may be extended.

waste dump problem went far beyond Love

Canal, making the federal disaster relief option

impractical. In late 1980, Congress passed

CERCLA to address other uncontrollable

hazardous waste sites similar to Love Canal

throughout the country.

CERCLA, as originally enacted in 1980,

authorized a five-year program by the federal

government to perform the following primary

tasks:

• Identify those sites where releases of

hazardous substances had already occurred or

might occur and posed a serious threat to

human health, welfare, or the environment

• Take appropriate action to remedy those

releases

• Force those parties responsible for the release

to pay for the cleanup actions.

To accomplish these tasks, CERCLA gave new

cleanup authority to the federal government,

created a $1.6 billion trust fund to pay for

government cleanup, and imposed cleanup
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 SECTION VI SECTION VI RCRA and its Relationship to Other Environmental Statutes

Chapter 2: Superfund: The Hazardous Waste Cleanup Program

TYPES OF RESPONSE ACTIONS

Once a potential release has been discovered,

the information is entered into the

Comprehensive Environmental Response,

Compensation, and Liability Information System

(CERCLIS), a computerized database used to track

hazardous substance sites. After being entered

into CERCLIS, each site undergoes a preliminary

assessment (PA) to determine if the site poses a

potential hazard and whether further action is

necessary. If the threat is immediate, a removal

action may be conducted.

Removal actions are short-term cleanup

actions that usually address problems only at the

surface of a site. They are conducted in response

to an emergency situation (e.g., to avert an

explosion, to cleanup a hazardous waste spill, or

to stabilize a site until a permanent remedy can be

found). Removal actions are limited to 12 months

duration or $2 million in expenditures, although in

certain cases these limits may be extended.

Removals may occur at any point in time after the

PA has been conducted.

Remedial actions are longer-term response

actions that ultimately represent the final remedy

for a site and generally are more expensive and of

a longer duration than removals. This is because

the remedial actions are intended to provide

permanent solutions to hazardous substance

threats. It is possible that both removal and

remedial actions may be taken at the same site. In

the event that longer-term cleanup is necessary,

the site is referred to the remedial program for

further investigation and assessment.

If the PA reveals a contamination problem

exists, but does not pose an immediate threat that

warrants a removal, EPA will continue to study the

site during a site inspection (SI). Based on data

collected during the PA and the SI, EPA will

evaluate the site using the Hazard Ranking

System (HRS), a model and scoring system that

determines the relative risk to public health and

the environment posed by hazardous substances

in ground water, surface water, air, and soil. Only

those sites with a score of 28.5 (on a scale from 0

to 100) are eligible for placement on the National

Priorities List, EPA’s priority hazardous substance

sites for cleanup. EPA only funds remedial actions

at hazardous waste sites on the NPL. As of

December 1997, there are over 1,200 sites either

on the NPL or proposed for inclusion. The

majority of sites on the NPL were listed based on

their HRS score. Under some circumstances, sites

may also be placed on the NPL by the state in

which the site is located or by the Agency for

Toxic Substances and Disease Registry (ATSDR).

Once a site is placed on the NPL, the remedial

process begins. The remedial process requires

EPA to design a community involvement plan that

will inform citizens of all remedial activities and

provide opportunities for public comment. A

remedial response has two main phases. The first

phase, the remedial investigation/feasibility

study (RI/FS), involves evaluating site conditions at

the site, defining any problems, and comparing

alternative site cleanup methods. After the

remedy has been selected, the decision is

documented in the record of decision (ROD).

The second phase, the remedial design/remedial

action (RD/RA), involves designing the chosen

cleanup and beginning construction.

Following the implementation of the remedy,

the state or the potentially responsible party

(PRP) assumes responsibility for the operation and

maintenance (O&M) of the site, which may

include such activities as ground water pump and

treat, and cap maintenance. Once EPA has

determined that all appropriate response actions

have been taken and cleanup goals have been

achieved, the site is deleted from the NPL through

a formal rulemaking process.
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RCRA and its Relationship to Other Environmental Statues SECTION VI SECTION VI

Chapter 2: Superfund: The Hazardous Waste Cleanup Program

RCRA AND REMEDY SELECTION

UNDER CERCLA

CERCLA assures that remedies are based on

the cleanup standards and criteria that have been

established by other laws, such as CAA, CWA, and

RCRA. CERCLA specifically requires that on-site

remedies attain any legally applicable or relevant

and appropriate requirements (ARARs),

standards, criteria, or limitations under federal or

more stringent state environmental laws, including

RCRA, unless site-specific waivers are obtained.

This means, for example, that whenever a

remedial action involves on-site treatment,

storage, or disposal of hazardous waste, the action

must meet RCRA’s technical standards for such

treatment, storage, or disposal (as discussed in

Section III, Chapter 5). The National Oil and

Hazardous Substances Pollution Contingency

Plan (NCP), which is the regulatory blueprint for

the CERCLA program, addresses the application of

ARARs to CERCLA remedial actions (40 CFR Part

300).

Once hazardous wastes are transported from a

CERCLA site, they are subject to full RCRA

regulation. Therefore, all transportation and TSD

requirements under RCRA must be followed. This

means that off-site shipments must be

accompanied by a manifest. In particular, the offsite disposal of hazardous wastes can occur only at

a RCRA facility in a unit in full compliance with

the Subtitle C requirements. Agency policy

requires that the disposal facility be inspected by

EPA six months prior to receiving the waste.

For off-site land disposal of wastes resulting

from a CERCLA activity, the program contains two

additional requirements. First, the unit in which

the wastes are to be disposed must not be

releasing hazardous wastes or constituents into

ground water, surface water, or soil. Second, any

releases from other units of the facility must be

under an approved RCRA corrective action

program. This policy assures that wastes shipped

off site from CERCLA sites are sent to

environmentally sound waste management

facilities.

Finally, EPA may not take or fund remedial

actions in a state unless the state ensures the

availability of hazardous waste treatment and

disposal capacity by submitting a capacity

assurance plan (CAP) to EPA. This capacity must

be for facilities that are in compliance with RCRA

Subtitle C requirements, and must be adequate to

manage hazardous wastes projected to be

generated within the state over 20 years. This

requirement limits and manages the amount of

hazardous waste generated in the United States by

encouraging waste minimization and recycling,

interstate agreements, and efficient and realistic

hazardous waste management systems. As of

December 1997, every state in the nation had

submitted a CAP to EPA.

RCRA CORRECTIVE ACTION VS. RCRA CORRECTIVE ACTION VS.

CERCLA RESPONSE

The cleanup of a site with hazardous waste

contamination may be handled under either

CERCLA, as described above, or RCRA. RCRA

authorizes EPA to require corrective action (under

an enforcement order or as part of a permit)

whenever there is, or has been, a release of

hazardous waste or constituents at TSDFs. The

WHAT ARE ARARS?

CERCLA on-site remedies must attain any ARARs

standards, criteria, or limitations under federal or

more stringent state environmental laws, including

RCRA, unless site-specific waivers are obtained.

This means, for example, that whenever a

remedial action involves on-site treatment,

storage, or disposal of hazardous waste, the

action must meet RCRA’s technical standards for

such treatment, storage, or disposal. The NCP

details the application of ARARs to Superfund

remedial actions.
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 SECTION VI SECTION VI RCRA and its Relationship to Other Environmental Statutes

Chapter 2: Superfund: The Hazardous Waste Cleanup Program

VI-4). In both, the first step after discovery of a

release is an examination of available data to

determine if an emergency action is warranted.

Both programs authorize short-term measures to

abate the immediate adverse effects of a release.

Once an emergency has been addressed, both

programs provide for an investigation and formal

study of long-term cleanup options. When these

analyses are completed, both provide for formal

selection of a remedy. The major procedural

difference between the two programs involves

funding. CERCLA requires that site conditions be

analyzed according to the HRS and that only NPL

sites receive any remedial action funding. There is

no comparable requirement under the RCRA

Statute provides similar corrective action authority

in response to releases at interim status facilities.

Further, RCRA allows EPA to require corrective

action beyond the facility boundary. EPA

interprets the term corrective action (as discussed

in Section III, Chapter 9) to cover the full range of

possible actions, from studies and interim

measures to full cleanups. Anyone who violates a

corrective action order can be fined up to

$27,500 per day of noncompliance and runs the

risk of having their permit or interim status

suspended or revoked.

RCRA and CERCLA cleanup programs use

different labels, but follow roughly parallel

procedures in responding to releases (see Figure

Figure VI-4: RCRA CORRECTIVE ACTION VS. CERCLA REMEDIAL PROCESS

Statement

of Basis/

Permit 

Modification

RFA

Notification/

Discovery

O & M

Deletion

RCRA CERCLA

HRS

ROD

CMS

CMI

NCAPS

PA/SI

NPL

FS

RD/RA

CERCLIS

Completion of 

corrective action/

No further action

RFI RI
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RCRA and its Relationship to Other Environmental Statues SECTION VI SECTION VI

Chapter 2: Superfund: The Hazardous Waste Cleanup Program

corrective action program because the owner or

operator of the site is responsible for the cost of

the cleanup.

The facility owner or operator implements

RCRA corrective action. On the other hand, a

number of different parties can implement a

CERCLA remedial action in a number of different

ways. For example, agreements may be reached

that allow PRPs, the state, or the federal

government, to assume the lead for certain

portions of a response action.

Generally, cleanups under RCRA corrective

action or CERCLA will substantively satisfy the

requirements of both programs. It is EPA’s general

policy for facilities subject to both CERCLA and

RCRA to be deferred to RCRA authority.

However, in some cases, it may be more

appropriate to use both RCRA and CERCLA

authorities. EPA has many procedures in place to

facilitate coordination between the RCRA and

CERCLA programs.

IMMINENT HAZARDS UNDER RCRA

AND CERCLA

Both RCRA and CERCLA contain provisions

that allow EPA to require persons contributing to

an imminent hazard to take the necessary actions

to clean up releases. RCRA’s §7003 imminent and

substantial endangerment provision addresses

nonhazardous as well as hazardous solid waste

releases. The authority under CERCLA §106 is

essentially the same, except that CERCLA’s

authority to abate an imminent or substantial

danger to public health or the environment is

limited to hazardous substance releases. In an

enforcement action, the RCRA and CERCLA

imminent hazard provisions may be used in

tandem to ensure adequate protection of human

health and the environment.

SUMMARY

CERCLA authorizes cleanup responses

whenever there is a release, or a substantial threat

of a release, of a hazardous substance, a pollutant,

or a contaminant, that presents an imminent and

substantial danger to public health. After a

potential release has been discovered, the site is

entered into CERCLIS, and undergoes a PA. If the

hazard is immediate, EPA may require a removal

action. If a contamination problem still exists, but

is not an immediate threat, EPA will conduct an SI,

evaluate the site using the HRS, and possibly place

the site on the NPL for remedial action. Such

longer-term remedial actions involve additional

remediation steps and larger expenditure of time

and resources because they provide permanent

solutions to hazardous substance problems. These

additional steps include an RI/FS. After a remedy

has been selected, the decision is documented in

the ROD, the RD/RA is implemented, and the

state or PRP is responsible for O & M of the site.

When all appropriate remedial actions have been

taken and the cleanup goals have been achieved,

the site is deleted from the NPL.

The RCRA program differs from the CERCLA

waste management approach. The general

distinction between the two programs is that

RCRA authorizes the safe and protective

management of wastes, while CERCLA authorizes

cleanup responses whenever there is a release of

wastes. However, the two programs do overlap.

For example, RCRA standards may be considered

ARARs and can be important in selecting remedies

under CERCLA. Moreover, RCRA’s corrective

action and CERCLA’s remedial action use parallel,

but not identical, procedures. Finally, both

Statutes authorize EPA to act in the event of an

imminent hazard.