The Resource Conservation and Recovery Act of 1976 sparked a far-reaching and complex regulatory program that took four years to create initially and that continues to evolve with ever-increasing complexity. By closely tracking hazardous wastes from generation to disposal, that is, from "cradle to grave," RCRA reaches all phases of hazardous waste generation and management. For example, those who generate hazardous waste must know or analyze the material, maintain records, record volumes, and assure that off-site disposal occurs at appropriate facilities. For on-site storage, treatment, and disposal facilities subject to narrow exemptions, EPA (or states to which EPA has delegated such authority) must issue permits that incorporate strict federal regulations and site-specific requirements, including cleanup of past contamination.

Management Standards

RCRA regulations establish stringent requirements for the generation, transportation, treatment, storage, and disposal of hazardous waste. These are particularly complex and onerous in the case of land disposal. Other requirements may include ground water monitoring and financial responsibility.

Land Ban Regulations

Congress enacted the Hazardous and Solid Waste Act (HSWA) Amendments to RCRA in 1984 to accelerate EPA s progress in establishing rigid requirements for landfills and other hazardous waste management units. HSWA also called for regulations to restrict severely the land disposal of hazardous wastes. The resulting complex regulatory program has imposed substantial costs by requiring treatment of hazardous wastes prior to land disposal.

Corrective Action Requirements

HSWA gave EPA authority to require cleanup of releases of hazardous constituents from non-hazardous solid waste management units (SWMUs). Under this "corrective action" authority, EPA requires each facility subject to hazardous waste permit requirements to identify the nature and extent of contamination, if any, from all SWMUs located at the facility and then to initiate both on- and off-site cleanup as necessary. As it evolves, the corrective action program will likely demand a scope of planning and expenditure from industry even greater than that now imposed by Superfund.

Morgan Lewis RCRA Activities

• Advice regarding the scope of agency corrective action authorities and creative ways to comply with them while minimizing unnecessary investigative/remedial costs.
• Preparation of comments on EPA proposed rules.
• Filing judicial challenges to EPA regulations.
• Counseling on compliance with land ban requirements, solid and hazardous waste definitions, combustion issues, and other evolving features of the RCRA program.
• Defense of civil and criminal enforcement actions alleging failure to comply with land disposal restrictions, ground water monitoring, and other regulatory requirements.
• Representation in obtaining and appealing permits for treatment, storage, and disposal facilities, and for underground injection of hazardous wastes.
• Guidance on regulations applicable to waste recycling operation.
• Representation concerning closure and post-closure care of land disposal/storage units.
• Preparation of no-migration petitions for relief from land disposal restrictions.
• Advice regarding the generation, treatment, storage, and disposal of "mixed" radioactive and hazardous wastes.

Morgan, Lewis & Bockius LLP has many attorneys with extensive RCRA expertise. They include Michael Steinberg, who, since his return from the Justice Department, has been counseling major trade associations on RCRA issues and who persuaded the D.C. Circuit to set aside EPA s "mixture rule" and carbamate listing; Lowell Martin, who serves as counsel to the RCRA Corrective Action Project, a group of Fortune 100 companies committed to orderly and cost-effective implementation of EPA s corrective action authorities and who is heavily involved in a multitude of state and federal RCRA permitting and compliance procedures; Joshua Sarnoff, who routinely comments on, litigates and provides advice regarding EPA s RCRA rules and who taught at the University of Arizona College of Law and worked for several years in EPA s Office of General Counsel; Kenneth Rubin, who prepared the petition that ultimately led to EPA s first "delisting" and advises a large number of our clients on day-to-day RCRA compliance questions; and Kenneth Myers and Robert Collings, who have provided similar representation and advice in connection with RCRA issues, especially in Pennsylvania, New Jersey, Virginia, and West Virginia. Richard Pettigrew in our Miami office has focused on the unique interrelationships between the federal RCRA program and its implementation in the State of Florida. Steve Oppenheimer in our Los Angeles office can provide assistance in interpreting California s unique hazardous waste regulatory requirements.

Strict Liability

The enactment of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, better known as Superfund, and its dramatic expansion in 1986 amendments, brought environmental concerns to the forefront for virtually every segment of American industry. First, Congress authorized funds $8.5 billion in 1986 for EPA to clean up abandoned dumps and other contaminated waste disposal sites. Second, the statute (as interpreted by the courts) typically imposed strict joint and several liability for EPA s cleanup costs on past and present site owners and operators, off-site generators who "arranged for disposal" of hazardous substances, and transporters who selected the site. Third, in an effort to prevent future Superfund sites, Congress imposed broad new reporting requirements for "releases" of hazardous substances into the environment.

Higher Site Cleanup Costs

Because the Superfund law is not fundamentally a regulatory statute, the primary obligation it imposes is liability for cleanup costs. EPA s National Priorities List already includes almost 1300 sites and is still growing. Most of these sites will require full-blown Remedial Investigation/Feasibility Studies (RI/FSs), which typically take two years to complete and cost at least $1 million. Even higher costs are encountered in the Remedial Design/Remedial Action (RD/RA) phase of site cleanup, with cost estimates currently averaging $30 million per site. Moreover, pumping and treating contaminated ground water usually takes decades, requiring a continuing commitment of corporate resources to manage and fund the project. As cleanup costs continue to rise, many question whether the money is being used efficiently.

Superfund problems for a company usually begin when it receives a notice (under section 104(e)) demanding that it provide information regarding the wastes it has sent to a designated site and that it assume responsibility for the costs of cleaning up that site. When numerous off-site generators are involved, those potentially responsible parties (PRPs) face the difficult task of organizing to negotiate with the government and perhaps assuming responsibility to perform the investigation or remedial work. Companies must decide whether to participate in settlement and how to protect their interests if the government performs the work. Additionally, EPA began in 1990 to make greater use of its Superfund enforcement tools, including unilateral administrative orders (UAOs) under which a company must perform the cleanup or face possible treble damages.

The possibility of being subject to huge liability for cleanup costs associated with past disposal practices severely affects transactions involving the acquisition or merger of companies or the purchase of land, as is discussed in later sections of this Deskbook.

Morgan Lewis Superfund Activities

• Negotiations with White House staff and Congressional members and staff on detailed proposals to amend Superfund.
• Representation in Superfund cleanups and litigation at more than 200 sites around the country.
• Organization of PRP steering committees; negotiation of joint defense agreements; and formation of other arrangements to perform management functions at Superfund sites.
• Advice regarding Superfund cleanup issues, such as contribution among parties, de minimis settlements, releases, cost allocation, investigation/remediation, and contractor liability.
• Oversight of technical consultants to conduct RI/FS investigations and perform remedial work.
• Defense against claims for natural resource damages.
• Work with senior EPA and DOJ officials on development and implementation of the 1995 Superfund administrative reforms initiative.
• Active involvement in D.C. Circuit litigation over EPA s revised National Contingency Plan.
• Active involvement in private party cost recovery litigation.
• Active involvement, through the Hazardous Waste Cleanup Project, in seeking a more rational approach to cleanup standards.
• Preparation of a comprehensive Environmental Spill Reporting Procedures Manual covering all federal laws and regulations and the laws of the states.
• Preparation, along with the Information Network for Superfund Settlements, of the PRP Organization Handbook, which facilitates PRP negotiations at Superfund sites through the use of standardized PRP documents.
• Preparation, along with the Information Network, of the Superfund Cleanup Decision Handbook, analyzing EPA s 1995 revised model consent decree for Superfund cleanups.
• Preparation, along with the Information Network, of the Superfund Negotiation Handbook.

As suggested by the fact that Morgan Lewis attorneys have participated at more than 200 Superfund sites, Superfund work constitutes one of the main elements of our environmental practice, and Morgan Lewis is at the forefront in this field. In addition to Superfund litigation (described later), Morgan Lewis attorneys have vast experience in counseling clients on Superfund potential liabilities and settlements. Morgan Lewis serves as exclusive Superfund counsel to a major national trade association. Several attorneys, including Kenneth Rubin and Kenneth Myers, have engineering degrees and have substantial experience working with environmental consultants. Morgan Lewis possesses a wide array of experience in analyzing the problems of ground water and soil contamination and evaluating remedial alternatives. Management of these aspects of Superfund work is indispensable to the ultimate objective of effective site remediation and cost control.