December 18, 2023

LDR Applicability to CERCLA Response Actions

Determining if a CERCLA response is subject to the RCRA land disposal restrictions (LDR) program can be challenging. EPA recently published “Superfund LDR Guide #5” as RO 51462, containing old LDR guidance assisting site managers with this determination. This guidance explains three main questions site managers must review when determining if LDR applies to their CERCLA cleanup.

Does the response constitute placement?

LDR applies to RCRA hazardous wastes before placement in a land disposal unit, such as a landfill, surface impoundment, injection well, or salt dome formation. Placement occurs when hazardous waste is disposed of off-site in one of these units. However, for CERCLA actions occurring onsite, uncontrolled and widespread contamination makes identifying placement more challenging. EPA uses the area of contamination (AOC) policy to help identify when placement occurs. An AOC is the areal extent of contiguous contamination and may contain varying types and concentrations of hazardous substances. Regarding AOCs, placement occurs when waste is moved from the AOC to another AOC or a hazardous waste management unit. Placement does not occur when waste is left in place or moved within the original AOC. AOCs and placement were also discussed in RO 11597.

Is the CERCLA hazardous substance a RCRA hazardous waste?

The LDR program applies when a CERCLA response involves the placement of a RCRA hazardous waste. While all RCRA hazardous wastes are CERCLA hazardous substances, not all hazardous substances are necessarily hazardous wastes. Site managers should use “reasonable efforts” to determine whether a hazardous substance is a hazardous waste—they do not have to assume a hazardous substance is a hazardous waste when the evidence does not support such a finding. A hazardous waste determination is a systematic approach to applying the correct RCRA waste codes to hazardous wastes as required in §262.11.

Is the RCRA waste restricted under the LDR program?

All hazardous wastes are restricted since the associated HSWA/LDR statutory deadlines have been met. While identifying restricted vs. non-restricted waste was important in the 1980s and 1990s, it is only of academic interest now since all hazardous wastes have been restricted for decades.

RO 51462 is part of a collection of LDR guides for CERCLA/Superfund site managers initially published between 1989 and 1990. While some of the guidance is no longer relevant, much of it can still be valuable for those seeking a better understanding of LDR applicability. Since the individual documents are scattered throughout multiple, difficult-to-access websites, McCoy and Associates has combined them into a single document for ease of viewing.

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Disclaimer

Considerable care has been exercised in preparing this document; however, McCoy and Associates, Inc. makes no representation, warranty, or guarantee in connection with the publication of this information. McCoy and Associates, Inc. expressly disclaims any liability or responsibility for loss or damage resulting from its use or for the violation of any federal, state, or municipal law or regulation with which this information may conflict. McCoy and Associates, Inc. does not undertake any duty to ensure the continued accuracy of this information.

This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.