REGULATORY FOCUS
A National Contingency Plan for hazardous waste
Michael R. Deland
On March 12, 1982, EPA proposed a revised National Contingency Plan (NCP) specifying guidelines for federal, state, and private responses to the cleanup of hazardous substances spills and abandoned hazardous waste dump sites. The Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA or Superfund) requires that the president revise the NCP originally mandated by the Clean Water Act to encompass the new powers created by Superfund. Responsibility for promulgation of the new plan then was delegated to EPA by Executive Order. When EPA missed the June 1981 statutory date for promulgation, the Environmental Defense Fund (EDF), later joined by the state of New Jersey filed suit, which resulted in a court order requiring EPA's recent promulgation. On March 4, 1982, the agency, citing "the complexity and length" of the NCP requested that the court allow "at least" a 60-day comment period. A less than sympathetic judge chastised EPA for unreasonable delay both in promulgating the plan and in making its motion, but did grant a 15-day extension. The result is that EPA must republish the revised NCP by May 28, 1982. EPA's proposed plan EPA's proposal is so substantially scaled down from drafts prepared by the Carter administration that it has been characterized by comparison as a "skeleton." The earlier drafts contained nine annexes that analyzed the key issues in detail. While rudimentary portions of the annexes have been included in the body of the plan, the 0013-936X/82/0916-0281 A$01.25/0
majority of their content has been eliminated. Superfund requires that the NCP include methods and criteria for establishing appropriate "removal" and "remedial" response measures. "Removal" methods are defined as actions taken shortly after discovery of a release to prevent actual or potential injury to public health, welfare, or the environment. "Remedial" actions consist of longer term response programs designed to address chronic problems. The proposed NCP divides "removal" into two categories, "immediate" and "planned," and by so doing establishes criteria for the allocation of fund monies; This approach in effect prohibits the fund financing of longer term response actions. Key to the proposed plan is the Hazard Ranking System (HRS) that the states and EPA are to use to determine priorities for response to releases of hazardous substances. The HRS is designed to estimate the relative severity of hazardous substance releases by evaluating "pathways" by which harm can occur. The HRS identifies five pathways of exposure: groundwater, surface water, air, direct contact, and fire and explosion. It then considers the probability of exposure by one or more pathways and the degree of harm or endangerment associated with such exposure. A complicated scoring system determines the relative aggregate risk created by different releases. This system will form the basis for inclusion of a release on the National Priority List. Selection of this "model" by EPA has already triggered examinations of its appropriateness by both the General Accounting Office and the Office of Technology Assessment. Meanwhile, an interim list of 115 releases or threatened releases has already been made public and the plan envisions a final list of "the 400 highest priority releases," which EPA hopes to publish by "late this year or early next." The agency has not yet established procedures by which one can appeal inclusion on the list. Since remedial response can be taken only at listed releases this appears to be a glaring omission.
© 1982 American Chemical Society
Reaction to the plan The environmental community is united in its opposition to the proposal. Its lead spokesperson, Khristine Hall of EDF, finds the plan to be merely a rendition of "factors to be considered" rather than the establishment of specific regulations to govern cleanup. She feels the plan is fatally flawed by not requiring that final cleanup be sufficient to protect public health and the environment, and adds that it has "taken EPA 10 months to remove the substance" contained in earlier drafts. The prime author of Superfund, Rep. James Florio (D.-N.J.) joins in this criticism. He is concerned about the plan's general vagueness and that there is no objective process or set of standards by which to judge a particular remedy. Further, there is nothing in the plan that commits EPA to any action. This he believes is "absolutely contrary to the intent of the law." OMB Director David Stockman privately joined the criticism by notifying EPA Administrator Anne Gorsuch of his concerns about the vagueness of the plan. Gorsuch counters that the plan is "concise, its language nontechnical, and requirements flexible. Simply put, the NCP exemplifies regulatory reform in the Reagan administration." Industry trade groups such as the Chemical Manufacturers Association are on record as supporting the plan, but individual members have expressed concern over the confusion certain to result from lack of specific regulations or even guidelines. While conceptually a case-by-case approach could lead to equitable, cost-effective cleanup, even the agency concedes that as it "gains greater knowledge regarding cleaning up releases of hazardous substances, more specific standards may be appropriate." In the meantime, given the general lack of enforcement initiatives thus far evidenced by EPA under Gorsuch's leadership, the fears of environmentalists and Superfund's author appear well founded. Deland writes this monthly column and is employed by ERT, Concord, Mass. Environ. Soi. Technol., Vol. 16, No. 5, 1982
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