Industry, Technology, and Employment Program
Office of Technology Assessment
United States Congress

April 6, 1984

Staff Memoranda are neither reviewed nor approved by the Technology Assessment Board.

Table of Contents

SUMMARY                                                                                                                                    2

INTRODUCTION AND BACKGROUND                                                                                    13

INDUSTRIAL SOURCES OF CERCLA SITES                                                                             24

INTERIM STATUS                                                                                                                       26

LIMITATIONS OF COVERAGE                                                                                                   32

GROUNDWATER MONITORING WELLS                                                                                  34

CONTAMINANT TOLERANCE LEVELS                                                                                    41

MONITORING IN ThE VADOSE ZONE                                                                                      53

DELAYS IN STARTING CORRECTIVE ACTION                                                                       63

STATISTICAL ANALYSIS                                                                                                           67

COMPLIANCE MONITORING                                                                                                    72

CORRECTIVE ACTION                                                                                                               75

FINANCIAL RESPONSIBILITY                                                                                                   81

REFERENCES                                                                                                                               82


One of the principal reasons for the passage of the Resource Conservation and Recovery Act (RCRA) in 1976 was for the regulation of future disposal of hazardous waste. It then became evident that additional legislation was needed to deal with the burgeoning number of uncontrolled sites which resulted from past practices. In 1980, therefore, Congress passed the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), also known as Superfund. There has been a general impression and hope that these two laws would eventually provide effective protection of public health and the environment from hazardous wastes: CERCLA by cleaning up past problems and RCRA by preventing future ones.

This analysis concludes that, where groundwater is at risk, RCRA groundwater protection standards are not likely to prevent land disposal sites from becoming uncontrolled sites that will require cleanup under Superfund. The problems with the RCRA groundwater protection standards are so numerous and serious that the standards cannot compensate for what has been found to be ineffective and unproven land disposal technology. Although OTA has not focused on the details of the RCRA statute in this analysis, there does not appear to be a major statutory problem.

The limitations of the RCRA groundwater protection standards, coupled with those of land disposal technology are likely to cause serious problems for future generations. Concern for the future indicates that land disposal be limited to inert low hazard wastes, such as the stabilized residues from waste treatment operations, and to facilities where groundwater is not threatened. Otherwise, Superfund is likely to face a continuing stream of substantial burdens in the decades ahead from land disposal facilities sanctioned by the regulatory structure, but whose operators may not bear cleanup costs There remains, moreover, a threat from the billions of tons of hazardous waste which have been disposed for many decades at what are now the interim status facilities under RCRA.


General conclusions

  • RCRA groundwater monitoring and protection standards issued by EPA were not designed to prevent RCRA regulated sites from becoming CERCLA sites and they are not capable of doing so.

  • Many of the RCRA regulations may seem reasonable on their surface, however, detailed technical analysis reveals serious inadequacies, especially associated with providing for effective, long-term management of hazardous wastes.

  • Many important decisions in the RCRA regulations were apparently made without consideration of alternative approaches and without cost/benefit analysis or risk analysis of alternative approaches. Had such analysis been performed, alternative approaches for groundwater protection which cost less over the long term and present fewer risks to public health and the environment probably would have been identified.

  • There appears to be almost no consideration given, in the RCRA regulations, to the huge cost of cleaning up groundwater contamination. Regulatory decisions have had the effect of keeping down the short range costs of the regulated community.

  • The regulations take an optimistic view of the availability of technologies to detect and clean up contamination but a pessimistic view of technologies which can prevent contamination, even when they are the same technology.

    Summary of Specific Conclusions
  • Interim Status Facilities: Groundwater protection standards for these facilities are less stringent than for new facilities, and most of them already are, or are likely to become leaking sites; however, there are no corrective action requirements.

  • Fixing Leaks: With confirmed groundwater contamination there are no requirements that a facility be closed until the leak is found and corrected, nor to even find or stop the leak.

  • RCRA Coverage Stops at the Fenceline: Although contamination may spread beyond the legal boundary of a facility and have to be cleaned up under CERCLA, under RCRA the operator only has to clean up within the facility limits

  • RCRA Coverage Limited to 30 Years: New facilities must be designed not to leak for 30 years after closure during which time the operator must maintain the facility, but later when leaks are more likely CERCLA becomes responsible.

  • Financial Responsibility: There are no RCRA requirements for financial assurance for corrective action on a leaking site.

  • Contaminants Which Are Regulated: Because CERCLA regulates more substances than RCRA, and detection levels for other substances are set lower by CERCLA than by RCRA standards, a permitted but leaking RCRA facility can become an uncontrolled site under CERCLA.

  • Tolerance Levels of Contaminants: Acceptable levels of groundwater contaminants are not based on health effects, and using detection limits of analytical techniques may not be protective of human health.

  • Geological Standards: There are difficulties in predicting groundwater movement or the rapid movement of contamination in some geological environments which makes early detection and correction uncertain at some sites. However, RCRA has no facility siting standards to restrict hazardous waste sites to geologically suitable locations.

  • Groundwater Monitoring: Technical complexity and site specificity make it difficult for government rules to set the conditions for effective groundwater monitoring.

  • Monitoring in the Vadose Zone: Although the technology exists, RCRA standards do not require monitoring in the land between the facility and underground water; hence, an opportunity to gain an early warning of leaks is lost.

  • Test for Statistical Significance: Tests required by RCRA keep the probability of falsely detecting contamination low at the expense of high probability that contamination might go undetected.

  • Corrective Action Delays Complex RCRA procedures can lead to delays of several years, increase cleanup costs, and increase the chances of CERCLA financing of cleanup.

  • Compliance Monitoring and Corrective Action: Technology does not necessarily exist to meet the RCRA standards for taking corrective action, nor in all cases for compliance monitoring, required after contamination is found.

    RCRA in Relation to CERCLA

    There have already been cases of hazardous waste from clean-up at CERCLA sites going to RCRA regulated sites which were later found to be leaking. Moreover, although RCRA and CERCLA are managed by the same agency, research for this analysis has found that the two program offices do not coordinate closely and that one office appears to be unaware, at times, of what the other is doing.

    Many people view RCRA as the program which will prevent present and future hazardous waste sites from becoming CERCLA sites. However, in the 80,000 word preamble to the final RCRA land disposal regulations standards, written two years after the passage of CERCLA, there is no reference to the concept that the standards are to serve the purpose of preventing regulated sites from becoming uncontrolled sites. Indeed, the only two references to CERCLA in the preamble are in the context of what CERCLA can do for RCRA, not what RCRA can do for CERCLA. Consequently, it appears that RCRA groundwater monitoring and protection standards were not designed to prevent RCRA regulated sites from becoming CERCLA sites and they are not capable of doing so.

    Interim Status Facilities

    Although they are "grandfathered" by the RCRA legislation, interim status facilities do not have EPA-issued permits for operation. In contrast to the regulations for new facilities, existing interim status facilities are not designed or operated to EPA's specifications for adequate groundwater protection. However, these facilities are the ones most likely to have received wastes which are most inappropriate for land disposal (e.g., uncontainerized, highly toxic liquids). No matter what may be done to limit land disposal in the future the interim status facilities have already received billions of tons of hazardous wastes over several decades; they continue to receive wastes. Moreover, available data and historical experience indicates that many of them already are, or are likely to become, leaking sites which will require corrective or remedial action. It will be many years before EPA can closely examine interim status sites -- even ones given priority -- to determine whether or not, and how, they should be permitted. But every day that goes by without detecting existing contamination or correcting contamination once it is found, adds to the cost of correction and makes it more likely that CERCLA will be involved. Nevertheless, the groundwater monitoring requirements for interim status sites are far less stringent than for new facilities designed to EPA specifications and there are no corrective action requirements. Alternatives to current regulations which could reduce high future cleanup costs include: requiring financial assurance for corrective action; improved monitoring and sampling; requiring prompt corrective action upon discovery of contamination; and promptly closing down obviously badly designed and badly located facilities.

    No requirement to fix leaking land disposal facilities

    Although EPA regulations require new hazardous waste disposal facilities to be designed so that they do not leak for at least 30 years after closure, if the facility does leak there is no requirement in the RCRA regulations that the facility be closed until the leak is found and corrected, indeed there is not even a requirement to find or stop the leak. Cleaning up the consequence of a leak, such as a plume of pollution, but not the leak itself is only a temporary expedient. Since the cost of cleaning ground water is generally proportional to the amount of time a site is allowed to leak, inattention to leaks raises the cost of remedial action to the point where facility owners may not be able to afford facility modification and cleanup and the result is an abandoned site. This research found no cost/benefit analysis or risk assessment to justify this policy, which runs a considerable risk of creating more sites and high cleanup costs for CERCLA. The result may be that short- term benefits will accrue to facility operators and users, and the longer-term costs likely to be borne by the site operator, the government, and the public will mount.

    RCRA coverage stops at the fenceline

    RCRA regulations do not require corrective action for groundwater contamination which goes beyond the fenceline of the regulated facility which created the problem. The reason given by EPA is that it may not be possible for the owner to gain access to the neighboring property in order to conduct corrective action. EPA assumes that the problem of plumes migrating off the property boundary would be addressed under CERCLA. However the same agency administers CERCLA and the same problem of gaining access to the neighboring property would have to be faced under CERCLA. It is unclear why this problem can be addressed under CERCLA, but not earlier and less expensively under RCRA which does not legislatively limit actions to within facility boundaries.

    RCRA coverage limited to 30 years

    Even though many toxic wastes will remain dangerous for many decades if not forever, RCRA regulations require that a new hazardous waste disposal site be designed so that it will not leak for 30 years after closure. The regulations also require the site owner to be responsible for routine maintenance of the site for 30 years after closure. However after 30 years, when the site may be more likely to leak, or for a leak to be detected through adverse effects, the maintenance cost is turned over to CERCLA.

    Financial responsibility

    A major cause for the abandonment of hazardous waste disposal facilities, and subsequently their becoming CERCLA sites, is the inability of site owners to finance the high cost of corrective action. This was recognized by Congress in its explicit requirement that the RCRA regulations provide assurances of financial responsibility consistent with the risk. Nevertheless the regulations have no financial assurance requirement for corrective action. A prudent, precautionary approach in establishing the level of financial responsibility, considering the historically proven limits of the technology, would be to assume that a leak will occur, will not be detected very early, and that groundwater contamination will be significant.

    Contaminants regulated under RCRA and CERCLA

    The universe of toxic groundwater contaminants of concern to CERCLA is greater than those of concern to RCRA. CERCLA regulates all contaminants defined by RCRA but not vice versa Therefore, a RCRA regulated facility in compliance with all RCRA standards can still become a CERCLA site. Additionally for many contaminants of concern to both RCRA and CERCLA, the levels of detection are set higher under RCRA procedures than under CERCLA procedures.

    Tolerance levels of contaminants

    Under RCRA, EPA does not appear to have set tolerance levels of groundwater contaminants based on their danger to human health, yet under CERCLA EPA is concerned with any contamination which threatens human health. Under RCRA, tolerance levels appear to be whatever detection limits result from the chemical analysis techniques used, and the choice of technique appears to be based on cost and ease of analysis rather than health factors. This is borne out by the fact that for many chemicals the tolerance level (allowable concentration) appears too high to adequately protect human health, and for many more chemicals, including EDB, dioxin, and DBCP, test protocols were established without knowledge of their detection levels. There is no cost/benefit analysis to evaluate whether costlier analytical techniques should be used to lower the detection limits, and no risk analysis to evaluate whether land disposal of some chemicals should be banned until the detection limits that are determined to be adequate are set by EPA.

    Geological standards

    There are some geological formations in which groundwater movement cannot be predicted; hence, groundwater cannot be monitored effectively at these sites. There are others in which groundwater contamination moves so rapidly that it cannot be detected and corrected before it has spread dangerously. Many states (e.g. California and Illinois) and other government agencies (e.g. Nuclear Regulatory Commission), therefore, have set standards which preclude locating land disposal facilities in certain geological formations. The RCRA standards, however, do not recognize this problem in permitting hazardous waste land disposal facilities. EPA has indicated that corrective action technology to effectively deal with groundwater pollution will become available in the future.

    Groundwater monitoring

    Groundwater monitoring must be "custom tailored" for each site. There are numerous complex hurdles to be overcome in order to do the job right, the failure of any one of which can lead to incorrect results. If the geology of the site is suitable (which it frequently is not) and if enough time, money and expertise are spent in designing and operating a groundwater detection system, then there is a reasonable chance of detecting pollution. However, groundwater monitoring has not yet proven its effectiveness as a regulatory tool. Technical complexity and site specificity make it difficult for government rules to set the conditions for effective groundwater monitoring. As a result, many facilities are inadequately monitored and significant improvement in the future is unlikely. A possible alternative would be to have the government (but not necessarily a regulatory agency) conduct monitoring.

    Monitoring in the Vadose Zone

    Detecting contamination before it reaches groundwater (i.e. in the vadose zone underneath the facility) might save millions of dollars in corrective action costs and might make the difference in keeping a site from becoming a CERCLA responsibility. Vadose zone monitoring has been used for some years at hazardous waste facilities in several states. The techniques have been studied by EPA's research laboratories and many of them are available today. Nevertheless, both EPA's RCRA interim status standards and the 1982 standards for permitted facilities dismiss the use of this technology without analyzing its effectiveness in reducing groundwater cleanup costs.

    Test for statistical significance

    Before a facility is required to report the presence of contamination in a detection monitoring well, a test for "statistical significance is performed. EPA has chosen a test procedure which keeps the probability of falsely detecting contamination low, but this has happened at the expense of increasing the probability that groundwater contamination might go undetected until it becomes obvious through environmental impacts, when cleanup costs may soar. Indeed, EPA apparently has not calculated the probability of detecting contamination with their procedures. Under some circumstances (e.g. interim status facilities following minimum RCRA requirements) the probability of detecting contamination may be such that the plume of contamination goes by the detection system for many years.

    Delays in onset of corrective action

    The RCRA regulations contain many complex procedural steps which can cause delays of several years in implementing corrective action, increase the costs of cleanup, and increase the chances of the need for CERCLA.

    Compliance monitoring and corrective action

    For most cases, the technology does not exist to meet the standards for taking corrective action required by the RCRA regulations, nor in all cases for compliance monitoring, required after contamination is found. The regulations rely on the availability of the technology some time in the future. The option of banning land disposal for untreated hazardous wastes until the technology to clean up groundwater (to background levels as required by the regulations) is available does not appear to have been evaluated. How such sites will be treated is unclear. If EPA insists on their meeting an unachievable monitoring or cleanup standard then the sites may be forced into bankruptcy and into the CERCLA program. If such sites are allowed to operate, then groundwater pollution would likely worsen.

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