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CERCLA does not explicitly draw a line between substantive and procedural requirements, but neither does the statutory language clearly forbid the NCP distinction. CERCLA is concerned only with substantive environmental requirements. In any case, the NCP limitation of applicable or relevant and appropriate requirements to substantive standards certainly represents a reasonable and permissible construction of the statute.
Before Congress created the Environmental Protection Agency ("EPA" or "the Agency"), and long before Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), there was a National Contingency Plan ("NCP"). In 1968, a group of federal agencies developed the first NCP, which was a multi-agency strategy for dealing with environmental disasters. In 1970, Congress incorporated the NCP into the Federal Water Pollution Control Act and pursuant to its directive, the President issued the first published NCP. The NCP, which acquired its current name--the National Oil and Hazardous Substances Pollution Contingency Plan--in 1971, was revised a number of times throughout the 1970s. By 1980, a comprehensive NCP was in place, although it applied only to discharges into waters regulated by the Clean Water Act. "It did not apply to releases to groundwater or soil, and it did not provide authority or funding for long-term federal response to chronic hazards." CERCLA came next. Enacted in 1980, CERCLA provided "for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive waste disposal sites." Of particular importance to this case is the prominent role of the NCP under CERCLA. Section 104(a)(1) of CERCLA authorizes the President "to act, consistent with the national contingency plan, to remove or arrange for the removal of, and provide for remedial action relating to such hazardous substance, pollutant, or contaminant at any time …, or take any other response measure consistent with the national contingency plan which the President deems necessary to protect the public health or welfare or the environment." The NCP thus "provides the organizational structure and procedures" for responding to hazardous waste threats. It is the means by which EPA implements CERCLA. When Congress enacted CERCLA in 1980, it directed the President to revise and republish the NCP in light of the new law. Pursuant to section 115 of CERCLA, the President assigned EPA the responsibility of amending the NCP. In 1982, EPA issued a new version of the NCP. EPA revised the NCP again in 1985. When Congress passed the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub. L. No. 99-499, 100 Stat. 1613, which significantly revised the statute, Congress directed the President to revise the NCP again to reflect the changes in CERCLA. EPA issued these revisions to the NCP in 1990. Petitioners (“the States”) include both states and private parties and essentially contended that EPA's changes to the NCP in 1985 and 1990 are inconsistent with the requirements of CERCLA.
Does the NCP definition of legally “applicable” or “relevant and appropriate” environmental standards (“ARARs”) as “substantive” requirements violate CERCLA?
In limiting ARARs to procedural requirements, EPA reasonably interpreted CERCLA's reference to "a level or standard of control" to be directed at those environmental laws governing "how clean is clean"--that is, the level or degree of cleanup required to remedy various types of toxic contamination. The CERCLA section at issue, section 121(d), is titled "Degree of cleanup," and it talks of standards that apply "to any hazardous substance, pollutant or contaminant," 42 U.S.C. § 9621(d)(2)(A), not of standards that apply more generally to a site or a party executing a cleanup. Moreover, the only specific requirements explicitly set out in the statute were substantive standards such as Maximum Contaminant Levels established in the Safe Drinking Water Act and Federal Water Quality Criteria established in the Clean Water Act. Finally, contrary to the States' claim, the SARA Conference Report explicitly states that "new section 121(d) establishes the substantive standards that remedial actions … must meet." The States were surely correct that the procedural requirements of various environmental statutes are intended to ensure that the substantive contaminant levels are met. However, this did not compel EPA to impose these requirements under CERCLA. The language and structure of section 121(d) strongly supported, if not compelled, the EPA interpretation. The NCP represented at the very least a permissible construction of CERCLA within the dictates of Chevron.