United States
Environmental Protection
Agency
Office of Emergency and
Remedial Response
Washington DC 20460
EPA/540/G-89/006
August 1988
CERCLA Compliance with
Other Laws Manual:
Interim Final
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EPA/540/G-89/006
August 1988
CERCLA COMPLIANCE WITH OTHER LAWS MANUAL
DRAFT GUIDANCE
August 8, 198!
United States Environmental Protection Agency
Office of Emergency and Remedial Response
Washington, D. C. 20460
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NOTICE
Development of this document was funded, wholly or in part, by the United States
Environmental Protection Agency under contract No. 68-01-7090 to ICF, Incorporated.
The policies and procedures set out in this document are intended solely for the
guidance of Government personnel. They are not intended, nor can they be relied
upon, to create any rights, substantive or procedural, enforceable by any party in
litigation with the United States. The Agency reserves the right to act at variance
with these policies and procedures and to change them at any time without public
notice.
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TABLE OF CONTENTS
EXECUTIVE SUMMARY xi
1 . GENERAL PROCEDURES FOR CERCLA COMPLIANCE WITH
OTHER STATUTES 1-1
1.0 INTRODUCTION 1-1
1.1 OVERVIEW OF REQUIREMENTS CONCERNING CERCLA COMPLIANCE
WITH OTHER LAWS 1-2
1.2 GENERAL PROCEDURES FOR DETERMINING IF REQUIREMENT IS
APPLICABLE OR RELEVANT AND APPROPRIATE (ARAR) 1-5
COORDINATION BETWEEN CERCLA (SUPERFUND) AND OTHER PROGRAM
OFFICES 1-6
DIAGRAM OF CRITICAL POINTS FOR IDENTIFICATION AND
COMMUNICATION OF ARARs 1-7
1.2.1 WHERE AND WHEN ARARS SHOULD BE ATTAINED 1-8
1.2.1.1 Requirements for Handling of Investigation-
Derived Laboratory Wastes 1-9
1.2.2 DEFINITIONS OF APPLICABLE AND RELEVANT AND
APPROPRIATE 1-10
1.2.2.1 Definitions of Substantive and Administrative
Requirements 1-11
1.2.3 TYPES OF ARARS 1-13
1.2.3.1 Chemical-Specific Requirements 1-13
1.2.3.2 Location-Specific Requirements 1-25
1.2.3.3 Action-Specific Requirements 1-29
1.2.4 GENERAL PROCEDURE FOR IDENTIFICATION AND
ANALYSIS OF ARARS 1-55
1.2.4.1 Procedure for Identifying ARARs 1-59
1.2.4.2 General Procedure for Determining if a
Requirement is Applicable 1-60
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1.2.4.3 General Procedure for Determining if a
Requirement is Relevant and Appropriate 1-65
1.3 CERCLA WAIVER CRITERIA FOR ARARS 1-71
1.4 OTHER CRITERIA OR GUIDELINES TO BE CONSIDERED 1-76
1.5 DOCUMENTATION 1-78
2. GUIDANCE FOR CERCLA COMPLIANCE WITH RCRA 2-1
2.0 INTRODUCTION 2-1
2.1 COORDINATION BETWEEN CERCLA (SUPERFUND) AND RCRA OFFICES 2-2
2.2 OVERVIEW OF RESOURCE CONSERVATION AND RECOVERY ACT (RCRA) 2-2
2.3 JURISDICTIONAL REQUIREMENTS FOR SUBTITLE C APPLICABILITY 2-4
2.3.1. DEFINITION OF HAZARDOUS WASTE 2-7
2.3.2 TREATMENT, STORAGE, AND DISPOSAL OF HAZARDOUS
WASTE 2-8
2.3.3 ADDITIONAL CONSIDERATIONS IN DETERMINING
SUBTITLE C ARARs 2-10
2.4 FEDERAL AND STATE RCRA REQUIREMENTS 2-11
2.5 RCRA STORAGE REQUIREMENTS 2-12
2.6 RCRA TREATMENT REQUIREMENTS 2-14
2.7 RCRA REQUIREMENTS TRIGGERED BY DISPOSAL 2-15
2.7.1 DESIGN AND OPERATING REQUIREMENTS TRIGGERED
BY DISPOSAL 2-18
2.7.2 CLOSURE REQUIREMENTS 2-19
2.7.3 SPECIAL RESTRICTIONS APPLICABLE TO LAND
DISPOSAL 2-21
2.7.4 CORRECTIVE ACTION AND GROUND-WATER PROTECTION
REQUIREMENTS 2-24
2.7.4.1 Ground-water Monitoring Requirements under
Subpart F 2-25
2.7.4.2 Ground-water Protection Standards under
Subpart F 2-25
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3. GUIDANCE FOR COMPLIANCE WITH CLEAN WATER ACT REQUIREMENTS 3-1
3.0 INTRODUCTION 3-1
3.0.1 ON-SITE ACTIONS: COMPLIANCE WITH SUBSTANTIVE
REQUIREMENTS
3.0.2 OFF-SITE ACTIONS; COMPLIANCE WITH SUBSTANTIVE AND
ADMINISTRATIVE REQUIREMENTS 3-2
3.1 OVERVIEW OF THE CLEAN WATER ACT 3-3
3.1.1 REGULATED SOURCES AND POLLUTANTS 3-3
3.1.2 LIMITATIONS AND STANDARDS 3-4
3.2 GUIDANCE FOR COMPLIANCE WITH DIRECT DISCHARGE REQUIREMENTS 3-6
3.2.1 TYPES OF DIRECT DISCHARGES 3-6
3.2.2 OVERVIEW OF NPDES PERMITS 3-7
3.2.3 GUIDELINES FOR DETERMINING SUBSTANTIVE
REQUIREMENTS 3-7
3.2.3.1 Technology-Based Standards 3-7
3.2.3.2 Water Quality Criteria 3-9
3.2.3.3 Water Quality Standards 3-11
3.2.3.4 Antidegradation Policy 3-14
3.2.3.5 Requirements Regarding Water Quality
Standards Imposed by the 1987 Amendments to
the CWA 3-14
3.2.3.6 Ocean Discharge Standards 3-15
3.2.3.7 Other Substantive Requirements 3-17
3.2.4 COORDINATION BETWEEN CERCLA (SUPERFUND) AND WATER
OFFICES FOR ON-SITE ACTIONS
3.2.5 ADMINISTRATIVE REQUIREMENTS OF THE NPDES PROGRAM
3.3 GUIDANCE FOR COMPLIANCE WITH INDIRECT DISCHARGE
REQUIREMENTS 3-21
3.3.1 PRETREATMENT STANDARDS 3-21
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3.3.2 GUIDANCE FOR DETERMINING WHETHER TO DISCHARGE
CERCLA WASTEWATER TO A POTW 3-23
3.3.3 POTW CONTROL MECHANISMS 3-27
3.4 COMPLIANCE WITH DREDGE AND FILL REQUIREMENTS 3-28
3.4.1 DREDGE AND FILL ACTIVITIES 3-28
3.4.2 AUTHORITIES FOR REGULATING DREDGE AND FILL
ACTIVITIES 3-28
3.4.3 THE ARMY CORPS OF ENGINEERS/EPA PERMIT PROGRAM 3-29
3.4.4. SUBSTANTIVE REQUIREMENTS 3-30
3.4.4.1 Dredged and Fill Material Disposal Under CWA
Section 404 and Rivers and Harbors Act
Section 10 3-30
3.4.4.2 Dredged Material Disposal under Section 103,
MPRSA 3-34
3.4.4.3 Dredged and Fill Material Disposal Under
40 CFR Part 6, Appendix 3-35
3.4.5 COORDINATION BETWEEN SUPERFUND AND THE 404/
WETLANDS PROTECTION PROGRAM OFFICES OR OCEAN
DISPOSAL PROGRAM 3-35
4 . GUIDANCE FOR COMPLIANCE WITH REQUIREMENTS OF THE SAFE
DRINKING WATER ACT 4-1
4.0 INTRODUCTION 4-1
4.1 OVERVIEW OF THE SAFE DRINKING WATER ACT 4-1
4.2 SUMMARY OF SDWA ARARS FOR CERCLA ACTIONS 4-2
4.2.1 DRINKING WATER STANDARDS 4-3
4.2.2 UNDERGROUND INJECTION CONTROL (UIC) PROGRAM 4-9
4.2.2.1 Guidance for Determining Substantive
Requirements 4-12
4.2.2.2 Administrative Requirements of the UIC
Program 4-14
4.2.2.3 Coordination Between CERCLA Program and UIC
Office 4-14
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4.2.3 SOLE SOURCE AQUIFER (SSA) PROGRAM 4-16
4.2.4 WELLHEAD PROTECTION PROGRAM 4-17
5. GROUND WATER PROTECTION POLICIES 5-1
5.0 OVERVIEW OF THE GROUND-WATER PROTECTION STRATEGY 5-1
5.1 OGWP GROUND-WATER CLASSIFICATION GUIDELINES 5-1
5.2 SUPERFUND APPROACH TO GROUND-WATER PROTECTION 5-2
HYPOTHETICAL SCENARIO FOR ILLUSTRATING HOW APPLICABLE OR
RELEVANT AND APPROPRIATE REQUIREMENTS ARE IDENTIFIED AND USED H-l
SITE CONDITIONS H-l
IDENTIFICATION AND ANALYSIS OF CHEMICAL-SPECIFIC
REQUIREMENTS H-3
IDENTIFICATION AND ANALYSIS OF LOCATION-SPECIFIC
REQUIREMENTS H-7
IDENTIFICATION AND ANALYSIS OF ACTION-SPECIFIC
REQUIREMENTS H-7
APPENDIX - OVERVIEW OF MAJOR ENVIRONMENTAL STATUTES AND
REGULATIONS A-l
1. OVERVIEW OF RESOURCE CONSERVATION AND RECOVERY ACT A-l
1.1 OFFICE OF SOLID WASTE A-l
1.2 OVERVIEW OF RCRA A-l
1.3 REGULATIONS PERTAINING TO HAZARDOUS WASTE A-3
1.4 OTHER RCRA REGULATIONS A-12
2. OVERVIEW OF CLEAN WATER ACT AND THE WATER QUALITY ACT A-13
2.1 OVERVIEW OF THE CWA A-13
2.2 CWA REQUIREMENTS PERTAINING TO CERCLA DISCHARGES A-14
3. THE SAFE DRINKING WATER ACT A-17
3.1 OVERVIEW OF THE SDWA A-17
3.2 SDWA REGULATIONS PERTAINING TO CERCLA ACTIVITIES A- 18
LIST OF ACRYONMS USED IN MANUAL
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IX
TABLE OF EXHIBITS
Exhibit
Number
Exhibit
Page
Number
DIAGRAM OF CRITICAL POINTS FOR IDENTIFICATION
AND COMMUNICATION OF ARARs 1-7
1-1 SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR
RELEVANT AND APPROPRIATE REQUIREMENTS 1-16
1-2 SELECTED LOCATION-SPECIFIC POTENTIAL APPLICABLE OR
RELEVANT AND APPROPRIATE REQUIREMENTS 1-27
1-3 SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR
RELEVANT AND APPROPRIATE REQUIREMENTS 1-31
1-4 PROCEDURE FOR IDENTIFYING ARARs 1-57
1-5 GENERAL PROCEDURE FOR DETERMINING IF REQUIREMENT IS
APPLICABLE 1-62
1-6 ARAR JURISDICTIONAL PREREQUISITES 1-63
1-7 GENERAL PROCEDURE FOR DETERMINING IF REQUIREMENT IS
RELEVANT AND APPROPRIATE 1-66
1-8 GENERAL PROCEDURE FOR DETERMINING IF GUIDANCE OR
CRITERIA SHOULD BE CONSIDERED 1-77
1-9 UNIVERSE OF APPLICABLE OR RELEVANT AND APPROPRIATE
REQUIREMENTS 1-80
1-10 OTHER FEDERAL AND STATE CRITERIA, ADVISORIES, AND
GUIDANCE TO BE CONSIDERED 1-85
2-1 CERCLA ACTIONS CONSTITUTING DISPOSAL 2-17
3-1 CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT
DOCUMENTS 3-36
4-1 PROPOSED MAXIMUM CONTAMINANT LEVEL GOALS (MCLGs) UNDER
THE SAFE DRINKING WATER ACT 4-4
4-2 LIST OF 83 CONTAMINANTS FOR WHICH MCLs MUST BE
PROMULGATED BY JUNE 1989 4-6
4-3 SECONDARY MAXIMUM CONTAMINANT LEVELS (SMCLs) UNDER THE
SAFE DRINKING WATER ACT 4-7
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XI
EXECUTIVE SUMMARY
PURPOSE
The CERCLA Compliance with Other Environmental Laws Manual has been developed
to provide guidance to Remedial Project Managers (RPMs), State personnel at
State-lead Superfund sites, On-Scene Coordinators (OSCs), and other persons
responsible for planning response actions under §§104, 106, and 122 of the
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The
guidance is intended to assist in the selection of on-site remedial actions that
meet the applicable, or relevant and appropriate requirements (ARARs) of the
Resource Conservation and Recovery Act (RCRA), Clean Water Act (CWA), Safe Drinking
Water Act (SDWA), Clean Air Act (CAA) , and other Federal and State environmental
laws, as required by CERCLA §§121.1
The manual has been developed for use by lead or support agencies for remedial
actions. The lead agency may be either EPA or a State. For timely identification and
to ensure compliance with ARARs, it is important to provide for early and continuous
coordination between lead and support agencies throughout the remedy selection
process.2
This manual will also be used by potentially responsible parties (PRPs)
whenever they have the lead for identifying potential ARARs. In cases where
potential ARARs are identified by the PRP, the actual ARARs will be decided by the
lead agency. Further information concerning PRP involvement in the remedial
investigation/feasibility study may be obtained from the "Interim Guidance on
Potentially Responsible Party Participation in Remedial Investigations and
Feasibility Studies." (April, 1988, OSWER Directive 9835.1A) or from the lead
agency.
This volume covers requirements of RCRA, CWA, SDWA and ground-water
protection policies. Another volume under development (Volume 3) will add
requirements under the Clean Air Act and other environmental statutes.
Specific EPA and State roles will be specified either in a Superfund
Memorandum of Agreement (SMOA) or Cooperative Agreement (CA). The SMOA is a
procedural agreement that outlines cooperative efforts between States and EPA
Regions and defines the roles and responsibilities of each party in the conduct of a
Superfund program in a State. For more information, see Draft Guidance on Preparing
a Superfund Memorandum of Agreement (SMOA) (OSWER #9375.0-01). A Cooperative
Agreement is a contractual agreement between the EPA and a State, in which the EPA
provides money from the Fund to a State to conduct remedial action in compliance
with the NCP.
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The requirements of §121 generally apply as a matter of law only to remedial
actions. However, as a matter of policy, EPA will attain ARARs to the greatest
extent practicable considering the exigencies of the situation at the site when
carrying out removal actions. This manual may be used to assist OSCs in identifying
potential ARARs for removal sites.
CERCLA §121 also requires on-site remedial actions to attain promulgated State
ARARs that are more stringent than Federal ARARS. Specific issues related to
identifying State ARARs will be addressed in a separate chapter at a later date.
Requirements for off-site actions are discussed to some extent in this manual.
For a more detailed discussion of off-site requirements, the reader should consult
"Revised Procedures for Planning and Implementing Off-Site Response Actions" (issued
November 13, 1987, EPA Directive 9834.11).
CERCLA defines situations in which the use of ARARs may be waived in
particular circumstances. Waivers are described in this manual. Further guidance on
the use of waivers may be added at a later date.
The manual is intended to be used in conjunction with other EPA guidance
documents, including the following:
Draft Guidance for Conducting Remedial Investigations and Feasibility
Studies under CERCLA (May 1988, OSWER Directive 9335.3-01);
Superfund Public Health Evaluation Manual (October 1986, OSWER
Directive 9285.4-1);
" Draft Guidance on Preparing Superfund Decision Documents: The Proposed
Plan and Record of Decision (March 1988, OSWER Directive 9355.3-02);
Draft Guidance the Administrative Record for SARA Response Actions
(November 1986, OSWER Directive 9833.1A);
Interim Guidance on Potentially Responsible Party Participation in
Remedial Investigations and Feasibility Studies (April 1988, OSWER
Directive 9835.1A); and
" Draft Guidance on Remedial Actions for Contaminated Ground Water at
Superfund sites. (No date, OSWER Directive 9283.1-02).
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Contents
Chapters 1 and 2 of the manual discuss the overall procedures for identifying
ARARs and provide guidance on the interpretation and analysis of RCRA requirements.
Chapter 1 defines "applicable" and "relevant and appropriate," provides matrices
listing potential chemical-specific, location-specific, and action-specific
requirements from RCRA, the Clean Water Act, and the Safe Drinking Water Act, and
provides general procedures for identifying and analyzing requirements. Chapter 2
discusses special issues of interpretation and analysis involving RCRA requirements,
and provides guidance on when RCRA requirements will be ARARs for CERCLA remedial
actions. Chapter 3 provides guidance for compliance with Clean Water Act substantive
(for on-site and off-site actions) and administrative (for off-site actions)
requirements for direct discharges, indirect discharges, and dredge and fill
activities. Chapter 4 provides guidance for compliance with requirements of the Safe
Drinking Water Act that may be applicable or relevant and appropriate to CERCLA
sites. Chapter 5 provides guidance on consistency with policies for ground-water
protection. The manual also contains a hypothetical scenario illustrating how
applicable or relevant and appropriate requirements are identified and used, and an
appendix summarizing the provisions of RCRA, the CWA and SDWA.
KEY POINTS
Definition of ARARs
A requirement under other environmental laws may be either "applicable"
or "relevant and appropriate," but not both. Identification of ARARs must be done on
a site-specific basis and involves a two-part analysis: first, a determination
whether a given requirement is applicable; then, if it is not applicable, a
determination whether it is nevertheless both relevant and appropriate.
Applicable requirements are those cleanup standards, standards of control, and
other substantive environmental protection requirements, criteria, or limitations
promulgated under Federal or State law that specifically address a hazardous
substance, pollutant, contaminant, remedial action, location, or other circumstance
at a CERCLA site.
Relevant and appropriate requirements are those cleanup standards, standards
of control, and other substantive environmental protection requirements, criteria,
or limitations promulgated under Federal or State law that, while not "applicable"
to a hazardous substance, pollutant, contaminant, remedial action, location, or
other circumstance at a CERCLA site, address problems or situations sufficiently
similar to those encountered at the CERCLA site that their use is well suited to the
particular site.
The determination that a requirement is relevant and appropriate is a two-step
process: (1) determination if a requirement is relevant and (2) determination if a
requirement is appropriate. In general, this involves
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a comparison of a number of site-specific factors, including the characteristics of
the remedial action, the hazardous substances present at the site, or the physical
circumstances of the site, with those addressed in the statutory or regulatory
requirement. In some cases, a requirement may be relevant, but not appropriate,
given site-specific circumstances; such a requirement would not be ARAR for the
site. In addition, there is more discretion in the determination of relevant and
appropriate; it is possible for only part of a requirement to be considered relevant
and appropriate in a given case. When the analysis results in a determination that a
requirement is both relevant and appropriate, such a requirement must be complied
with to the same degree as if it were applicable.
To-be-Considered Material (TBCs) are non-promulgated advisories or guidance
issued by Federal or State government that are not legally binding and do not have
the status of potential ARARs. However, as described below, in many circumstances
TBCs will be considered along with ARARs as part of the site risk assessment and may
be used in determining the necessary level of cleanup for protection of health or
the environment.
Types of ARARs
There are several different types of requirements that CERCLA actions may have
to comply with. The classification of ARARs below was developed to provide guidance
on how to identify and comply with ARARs; however, some requirements may not fall
neatly into this classification system.
" Ambient or chemical-specific requirements are usually health- or
risk-based numerical values or methodologies which, when applied to
site-specific conditions, result in the establishment of numerical
values. These values establish the acceptable amount or concentration of
a chemical that may be found in, or discharged to, the ambient
environment.
Performance, design, or other action-specific requirements are usually
technology- or activity-based requirements or limitations on actions
taken with respect to hazardous wastes.
" Location-specific requirements are restrictions placed on the
concentration of hazardous substances or the conduct of activities solely
because they occur in special locations.
Developing Protective Remedies Using Risk Assessment, ARARs, and TBCs
CERCLA §121 requires selection of a remedial action that is protective of
human health and the environment. EPA's approach to determining protectiveness
involves risk assessment, considering both ARARs and to-be-considered materials
(TBCs). The risk assessment includes consideration of site-specific factors such as
types of hazardous substances present, potential for exposure, and presence of
sensitive populations. Acceptable exposure levels are generally determined by
applicable or relevant and appropriate
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Federal and State environmental requirements, if available, and the following
factors: (1) for systemic toxicants, concentration levels to which the human
population (including sensitive subgroups) could be exposed on a daily basis without
appreciable risk of significant adverse effects during a lifetime; (2) for known or
suspected carcinogens, concentration levels that represent an excess upperbound
lifetime cancer risk to an individual of between ICr4 and ICr7; (3) other factors
related to exposure (such as multiple contaminants at a site or multiple exposure
pathways) or to technical limitations (such as detection/quantification limits for
contaminants). The Superfund Public Health Evaluation Manual provides guidance on
determining acceptable levels.3
ARARs will define the cleanup goals when they set an acceptable level with
respect to site-specific factors. For example, MCLs under the Safe Drinking Water
Act are normally acceptable levels for specific contaminants. However, cleanup goals
for some substances may have to be based on non promulgated criteria and advisories
(for example, health advisories such as reference doses (RfD)) rather than on ARARs
because ARARs do not exist for those substances or because an ARAR alone would not
be sufficiently protective in the given circumstances, e.g., where additive effects
from several chemicals are involved. In these situations, the cleanup requirements,
in order to meet the cleanup goals, will not be based on ARARs alone but also on
TBCs. Similarly, State criteria, advisories, and guidance should also be considered
for the State in which a site is located.
Using ARARs
Different ARARs that may apply to a site and its remedial action should be
identified at multiple points in the remedy selection process. During the scoping of
the RI/FS and the site characterization phase, the lists of potential ARARs in
Exhibits 1-1, 1-2, and 1-9 and the appropriate Regional or State program office
should be consulted to determine what ARARs may apply to the site. At this stage
potential chemical- and location-specific ARARs should be identified. Exhibits 1-3
and 1-9 and the appropriate Regional or State program office should be consulted in
identifying action-specific ARARs for each proposed alternative during the
development of remedial alternatives in the Feasibility Study. During the detailed
design the technical specifications must ensure attainment of ARARs.
When and Where Protectiveness Must Be Attained
ARARs (and TBCs necessary for protection) must be attained for hazardous
substances, pollutants, or contaminants remaining on-site at the completion of the
remedial action, unless waiver of an ARAR is justified. In addition, EPA intends
that the implementation of remedial actions should also comply with ARARs (and TBCs
as appropriate) to protect public health and the environment.
Superfund Public Health Evaluation Manual, OSWER Directive 9285.4-1,October,
1986.
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ARARs (and TBCs necessary for protection), pertaining both to contaminant
levels and to performance or design standards, should generally be attained at all
points of potential exposure, or at the point specified by the ARAR itself. CERCLA
requires, to the maximum extent practicable, the use of permanent solutions and
alternative treatment technologies. Any waste left in place should either be brought
to health-based levels or managed according to performance or design specifications.
At sites where a TBC value is used to set a protective level of cleanup or where the
ARAR does not specify the point of compliance, there is discretion to determine
where the requirement shall be attained to ensure protectiveness. At each potential
point of exposure, a reasonable maximum exposure scenario should be assumed, and
cleanup goals set accordingly to ensure protectiveness, using best professional
judgment. Restrictions on use or access should not be a substitute for remediation
to appropriate protective health-based or design levels. If active measures are not
practicable (or cost-effective), exposure to the waste must be controlled through
legally enforceable institutional means. "Non-engineered" or "exposure" controls may
be used in certain circumstances in combination with "engineered" controls and/or
treatment in the management and cleanup of the site where it is determined that such
controls are necessary to be protective. In such circumstances, where exposure
controls are used, restrictions should be employed to ensure that the controls
remain in place, that they remain protective, and that they are effective in
preventing exposure to hazardous substances for as long as the substances at the
site remain hazardous.
In ground water, cleanup goals should generally be attained throughout the
contaminated plume, or at the edge of the waste management area when waste is left
in place. However, if the waste is left on-site under a hybrid-type closure scenario
(see p. 2-20 for discussion of hybrid closure), where the waste does not threaten
ground water, the goal should be to reach health-based levels underneath the waste
as well.
In surface water, cleanup goals should generally be attained at the point or
points where the release enters the surface water. In air, cleanup goals should
generally be achieved at the maximum exposed individual, considering the reasonably
expected uses of the site and surrounding area. For soils, cleanup goals should
generally be attained wherever direct contact might reasonably occur.
Compliance with Substantive and Administrative Requirements
CERCLA §121(e) exempts any response action conducted entirely on-site from
having to obtain a Federal, State, or local permit, where the action is carried out
in compliance with §121.
In general, on-site actions need comply only with the substantive aspects of
ARARs, not with the corresponding administrative requirements. That is, permit
applications and other administrative procedures, such as administrative reviews and
reporting and recordkeeping requirements, are not considered ARARs for actions
conducted entirely on-site. However, the
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Feasibility Study, the Proposed Plan, the Record of Decision, the Community
Relations Plan, and the Administrative Record should demonstrate full compliance
with all substantive requirements that are ARARs, unless a waiver is used.
Off-site actions must comply with all legally applicable requirements, both
substantive and administrative. The concept of "relevant and appropriate" is not
available for off-site actions.
Coordination/Consultation With Other Federal and State Programs
Sources of potential ARARs include other Federal environmental laws
administered by EPA and authorized States and by other Federal agencies, and more
stringent State environmental or facility siting laws. Therefore, to ensure that
remedies comply with substantive aspects of identified ARARs, other Federal and
State program offices should be consulted as appropriate, particularly for on-site
actions where no permit will be obtained.
RCRA Requirements
Prerequisites for Applicability of RCRA Hazardous Waste Management Regulations
RCRA requirements for treatment, storage, or disposal of hazardous wastes
apply to a Superfund site if the site contains RCRA listed or characteristic
hazardous waste that was treated or disposed of after the effective date of the RCRA
regulations that are under consideration as potential ARARs for the site, or if the
CERCLA activity at the site constitutes current treatment, storage, or disposal of
RCRA hazardous waste. In some cases, it may not be possible to determine whether a
CERCLA hazardous substance at a site is a hazardous waste under RCRA, or whether it
was disposed at the site after the effective date; these prerequisites should not be
assumed. In such cases, RCRA requirements will not be applicable, but may
nevertheless be relevant and appropriate, if the CERCLA action involves treatment,
storage, or disposal and if the wastes are similar or identical to RCRA hazardous
waste.
Definition of Disposal
EPA has concluded that moving RCRA hazardous waste (including hazardous
waste that was originally disposed before the requirements' effective date)
constitutes land disposal when that waste is placed into a land disposal unit. At
CERCLA sites, there are areas of contamination with differing levels of
concentration of hazardous substances, pollutants, or contaminants. In such cases,
when RCRA hazardous waste is moved into an area of contamination, RCRA disposal
requirements (such as for closure) are applicable to the area where the waste is
received. In addition, EPA has determined that disposal and placement are synonymous
for purposes of determining the applicability of the land disposal restrictions
under RCRA.
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Corrective Action
RCRA contains several authorities under which corrective action requirements
will be promulgated.4 Because of the similarity of corrective action under RCRA to
CERCLA cleanup, these requirements are likely to be applicable or relevant and
appropriate in many remedial action situations. This manual will be updated to
include RCRA corrective action requirements and their bearing on CERCLA remedial
activities.
Ground-water Protection
RCRA currently contains ground-water monitoring and protection standards. In
general, EPA will use MCLs as protection levels for ground water that is currently
or potentially used for drinking. The Agency may establish site-specific
exposure-based ACLs at particular sites where the ground water cannot be used for
drinking because of high salinity or naturally occurring widespread contamination,
or where cleanup is not practicable or cost-effective and where the circumstances
fulfill the conditions of CERCLA §121(d)(B)(ii).
The Superfund Program's goal is to restore ground water to its beneficial uses
based in large part on their vulnerability, use, and value. The Ground-Water
Protection Strategy and draft Office of Ground-Water Protection Classification
Guidelines serve as useful guidance. The program uses the classification scheme on a
site-specific basis to assist in the characterization of a ground water's
vulnerability, use, and value. Ground-water classifications performed at Superfund
sites are limited in scope to the Superfund action that will be taken and do not
apply to the geographical area in general. More stringent promulgated State
requirements will be used as standards when they exist. Additional guidance on Clean
Water Act, Safe Drinking Water Act, and other water-related requirements is
presented in Chapters 3, 4, and 5 of this manual.
Clean Water Act Requirements
Direct Discharge to Surface Waters
Both on-site and off-site direct discharges from CERCLA sites to surface
waters are required to meet the substantive requirements of the National Pollutant
Discharge Elimination System (NPDES) program. These substantive requirements include
discharge limitations (both technology and water quality based), certain monitoring
requirements, and best management practices. These requirements will be contained in
an NPDES permit for off-site CERCLA
4
Corrective action requirements for regulated units have been
promulgated in 40 CFR Part 264, Subpart F. Additional requirements for
corrective action for solid waste management units (SWMUs) at RCRA facilities
seeking permits are currently being developed for promulgation in 40 CFR Part
264 Subpart S.
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discharges. For on-site direct discharges from a CERCLA site, these substantive
requirements must be identified and complied with even though on-site discharges are
not required to have an NPDES permit. For purposes of this guidance, a direct
discharge of CERCLA wastewaters would be "on-site" if the receiving water body is in
the area of contamination or is in very close proximity to the site and necessary
for implementation of the response action (even if the water body flows off-site).
Indirect Discharge to POTWs
In general, the discharge of CERCLA wastewaters to publicly owned treatment
works (POTWs) is considered an off-site activity. Therefore, CERCLA responses
required to comply with all applicable (both substantive and administrative)
requirements of the national pretreatment program including the general and specific
discharge prohibitions. Further, all local pretreatment regulations must be complied
with before discharging wastewater to a POTW. These local pretreatment regulations
include local discharge limitations and prohibitions. When considering discharge of
CERCLA wastewater to a POTW, the POTW's record of compliance with the NPDES permit
and pretreatment program requirements should be assessed.
Discharge of Dredged or Fill Material
Under CERCLA §121(e), no Federal, State, or local permit is required for
response actions conducted entirely on-site; however, consultation with the Corps
remains important in developing the CERCLA response. Under the CWA §404 guidelines,
no discharge of dredged or fill material will be allowed unless appropriate and
practicable steps are taken that minimize potential adverse impacts of the discharge
on the aquatic ecosystem.
Safe Drinking Water Act Requirements
Use of MCLs
For cleaning up ground water or surface water that is or may be used for
drinking, the Maximum Contaminant Levels (MCLs) set under the Safe Drinking Water
Act are generally the applicable or relevant and appropriate standard. MCLs are
applicable where the water will be provided directly to 25 or more people or will be
supplied to 15 or more service connections. When MCLs are applicable they should at
least be met at the tap. MCLs are relevant and appropriate in other cases where
surface water or ground water is or may be directly used for drinking water, and in
such cases, the MCLs should be met in the surface water or groundwater itself.
Use of MCLGs
A standard for drinking water more stringent than an MCL may be needed in
special circumstances, such as where multiple contaminants in groundwater or
multiple pathways of exposure present extraordinary risks (i.e., individual lifetime
cancer risk above 10~4) . In setting a level more stringent than the
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MCL in such cases, a site-specific determination should be made by considering
Maximum Contaminant Level Goals (MCLGs), the Agency's policy on the use of
appropriate risk ranges for carcinogens, levels of quantification, and other
pertinent guidelines. Prior consultation with Headquarters contacts in the Office of
Emergency and Remedial Response or the Office of Waste Programs Enforcement, as
appropriate, is encouraged in such cases.
Underground Injection Control Program
CERCLA sites where underground injection wells are constructed on-site are not
required to comply with the administrative requirements of the UIC program. However,
they must meet the substantive requirements that are determined to be applicable or
relevant and appropriate to the CERCLA remedial action. Examples of substantive UIC
program requirements include RCRA manifest and corrective action requirements for
the underground injection of hazardous wastes, well construction requirements, well
operating requirements, and well closure requirements. Other information should also
be reported to the Region UIC program regarding the operation of an injection well.
(This information in described in Chapter 4).
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CHAPTER 1
GENERAL PROCEDURES FOR CERCLA COMPLIANCE WITH OTHER STATUTES
1.0 INTRODUCTION
This chapter describes general procedures for Superfund compliance with
applicable or relevant and appropriate requirements (ARARs) of other environmental
and public health statutes when conducting remedial actions. Currently, the most
important requirements for compliance are set by the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA) itself, as amended by the
Superfund Amendments and Reauthorization Act of 1986 (SARA), particularly §121. The
current National Contingency Plan (NCP)l and the "Memorandum on CERCLA Compliance
with Other Environmental Laws" (the Compliance Policy) , which was published as an
appendix to the November 1985 NCP Preamble, remain in effect regarding cleanup
standards except when superceded by the new CERCLA requirements. However, because
the NCP is being revised, it is generally not described in this chapter, which is
organized as follows:
Section 1.1 provides an overview of the statutory requirements concerning
CERCLA compliance with other laws.
Section 1.2 describes general procedures for identifying particular
requirements in other laws that may be applicable or relevant and appropriate
requirements (ARARs) for a CERCLA remedial action. In order to facilitate
identification of ARARs, Section 1.2 provides matrices of chemical-specific,
location-specific, and action-specific potential ARARs from several different
laws. Finally, Section 1.2 provides a procedure for analyzing the probable
ARARs to determine whether they are, in fact, applicable or relevant and
appropriate requirements for the particular site in question.
Section 1.3 provides a short description of the situations listed in CERCLA
that may justify waiving particular requirements that have been determined to
be ARARs. More detailed guidance on waivers will be provided at a later date.
Section 1.4 describes how materials that are not potential ARARs, but which do
provide useful guidance or information, should be considered, analyzed, and
used.
Section 1.5 provides guidance on documenting the consideration of ARARs in
developing remedial actions.
1 See 40 CFR Part 300.
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1.1 OVERVIEW OF REQUIREMENTS CONCERNING CERCLA COMPLIANCE WITH OTHER LAWS
CERCLA, as it was passed in 1980, did not contain a specific requirement
pertaining to the compliance of on-site CERCLA actions with other laws. CERCLA §105,
which authorizes EPA to prepare the National Contingency Plan (NCP) for Hazardous
substance response, says only that the NCP shall include "methods and criteria for
determining the appropriate extent of removal, remedy, and other measures." EPA,
however, stated in the NCP (as revised in 1985)2 and in its policy memorandum on
CERCLA compliance with other environmental statutes, which was attached to the
preamble to the 1985 NCP, that it would attain or exceed applicable or relevant and
appropriate Federal environmental and public health standards in CERCLA response
actions unless one of five specifically enumerated situations was present.
CERCLA §121, added by Congress in SARA in 1986, in effect codifies EPA's
existing approach to compliance with other laws. Section 121 establishes cleanup
standards for remedial actions under §§104 and 106 of CERCLA. Remedial actions must
attain a general standard of cleanup that assures protection of human health and the
environment, must be cost effective, and must use permanent solutions and
alternative treatment technologies or resource recovery technologies to the maximum
extent practicable. In addition, for any material remaining on-site,3 the level or
standard of control that must be met for the hazardous substance, pollutant, or
contaminant is at least that of any applicable or relevant and appropriate standard,
requirement, criteria, or limitation under any Federal environmental law, or any
more stringent standard, requirement, criteria, or limitation promulgated pursuant
to a State environmental statute.4
40 CFR §300.68 (50 FR 47969, November 20, 1985).
3 CERCLA §121(c)(3)(B) requires off-site storage, destruction,
treatment, or secure disposition of hazardous substances from Superfund sites
to be carried out only at hazardous waste disposal facilities that are in
compliance with Subtitle C of RCRA. CERCLA §121(d)(3) requires that transfer
of hazardous substances be made only to facilities that are operating in
compliance with §§3004 and 3005 of the Solid Waste Disposal Act (or, where
applicable, in compliance with the Toxic Substances Control Act or other
applicable Federal law) and all applicable State requirements. Requirements
for off-site actions are discussed to some extent in this manual. For more
detailed discussion of off-site requirements, the reader should consult
"Revised Procedures for Planning and Implementing Off-site Response Actions
(issued November 13, 1987, EPA Directive 9834.11).
4 Applicable or relevant and appropriate requirements include more
stringent currently promulgated State requirements (See CERCLA §121
(d) (2) (A) (ii)) . The proposed NCP will define "promulgated" State requirements
as those laws or regulations that are of general applicability and are legally
enforceable. Coordination with State governments to identify State ARARs will
be addressed at a later date.
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Congress added several new categories of potential ARARs, particularly State
standards, which the NCP had previously included in the category of requirements to
be considered, but not necessarily attained. In addition, remedial actions are now
required by §121 to at least attain levels or standards of control established by
Maximum Contaminant Level Goals under the Safe Drinking Water Act and Federal Water
Quality Criteria under the Clean Water Act, when those standards or goals are
relevant and appropriate under the circumstances of the release.5 Section 121 also
establishes special requirements for the use of alternate concentration limits.
CERCLA §121(e) provides that no Federal, State, or local permit shall be
required "for the portion of any removal or remedial action conducted entirely on
site," when the action is selected and carried out in compliance with the cleanup
standards requirements in §121. EPA interprets "on-site" to include the "areal
extent of contamination and all suitable areas in very close proximity to the
contamination necessary for implementation of the response action." As a matter of
policy, this definition would be implemented with certain limitations. Generally,
best professional judgment should be used to determine that the area is within "very
close proximity" to the contamination and is necessary for implementation of the
portion of the response action addressing the nearby contamination.6
Finally, §121(d)(4) provides that under six specific circumstances, described
below, legally applicable or relevant and appropriate requirements can be waived.
However, the requirement that the remedy be protective of human health and the
environment cannot be waived.
ARARs and Removal Actions
The requirements of CERCLA §121 generally apply as a matter of law only to
remedial actions. EPA's policy for removal actions, however, is that ARARs will be
identified and attained to the extent practicable. This manual may be used as a
reference by On-Scene Coordinators (OSCs) to assist in identifying potential ARARs
for removal sites. Three factors will be applied to determine whether the
identification and attainment of ARARs is practicable in a particular removal
situation: (1) the exigencies of the situation; (2) the scope of the removal action
to be taken; and (3) the effect of ARAR attainment on the statutory limits for
removal action duration and cost. These factors are outlined below.
Details concerning these categories of standards are provided in section
1.2.3.1 below. CERCLA §121(d)(2)(B)(i) lists four factors that must be considered
in determining whether or not any water quality criteria under the Clean Water
Act are relevant and appropriate.
Federal, State, or potentially responsible parties undertaking removal or
remedial actions under CERCLA §§104, 106, or 122 are covered by the §121(e)
permit exemption.
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1-4
Exigencies of the situation. OSCs must often act quickly to provide protection
of public health and the environment and any delay would compromise this objective
of the removal action. Where urgent conditions constrain or preclude efforts to
identify and attain ARARs, the OSC's documentation of these conditions will be
considered sufficient as justification for not attaining all ARARs. To illustrate, a
site may contain leaking drums that pose a danger of fire or explosion in a
residential area. The drums should be removed or stabilized imediately, without
attempting to identify and comply with all potential ARARs. The OSC's documentation
should describe the time critical nature of the situation and the remedial action
taken.
Scope of the removal action. Removal actions generally focus on the
stabilization of a release or threat of release and mitigation of near-term threats.
ARARs that are within the scope of such removal actions, therefore, are only those
ARARs that must be attained in order to eliminate the near-term threats. For
example, a removal action may be conducted to remove large numbers of leaking drums
and associated contaminated soil. In this situation, because the removal focuses
only on partial control, chemical-specific ARARS for groundwater restoration would
not be considered.
Statutory limits. CERCLA sets time and money limitations on a removal action.
Attainment of all ARARs for a removal response may not be possible within the 12
months or $2 million limits set in the statute. For instance, a removal action may
be undertaken at a site where there is widespread soil and ground water
contamination. This response might involve removal of surface debris and excavation
of highly-contaminated soil necessary to reduce the direct contact threat and
further deterioration of the ground water. If the statutory limits were reached or
approached as a result of the debris removal and limited excavation, more extensive
excavation of low-level soil contamination as part of the removal action may not be
warranted. Although the statutory limits may preclude removals from attaining all
identified ARARs, OSCs will give greater emphasis to those ARARs that are most
crucial to the proper stabilization of the site and protection of public health and
the environment. (Exemptions to the $2 million/12 month statutory limits may be
granted where sites meet the criteria for approving the "emergency" or "consistency"
exemptions.)
In addition to the three factors for determining whether it is practicable to
identify and attain ARARs for removal actions, the statutory waivers in CERCLA
§121(d)(4) would apply to removal as well as to remedial actions. For example, State
ARARs do not have to be attained where the State standard, requirement, criterion,
or limitation has not been consistently applied in circumstances similar to the
response in question. If a State standard is identified as an ARAR for a removal
action, attainment of that ARAR may be waived if the State has inconsistently
applied it in similar circumstances. The ARARs waivers generally may be used as they
are used for remedial activities.
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Developing Protective Remedies Using Risk Assessment, ARARs, and TBCs
CERCLA §121 requires selection of a remedial action that is protective of
human health and the environment. EPA's approach to determining protectiveness
involves assessment, considering both ARARs and to-be-considered materials (TBCs).
The risk assessment includes consideration of site-specific factors such as types of
hazardous substances present, potential for exposure, and presence of sensitive
populations. Acceptable exposure levels are generally determined by applicable or
relevant and appropriate Federal and State environmental requirements, if available,
and the following factors: (1) for systemic toxicants, concentration levels to which
the human population (including sensitive subgroups) could be exposed on a daily
basis without appreciable risk of significant adverse effects during a lifetime; (2)
for known or suspected carcinogens, concentration levels that represent an excess
upperbound lifetime cancer risk to an individual of between ICr4 and ICr7; (3) other
factors related to exposure (such as multiple contaminants at a site or multiple
exposure pathways) or to technical limitations (such as detection/quantiiication
limits for contaminants). The Superfund Public Health Evaluation Manual provides
guidance on determining acceptable levels.7
1.2 GENERAL PROCEDURES FOR DETERMINING IF REQUIREMENT IS APPLICABLE OR RELEVANT
AND APPROPRIATE
CERCLA §121 requires, for hazardous substances left on-site at the conclusion
of remedial actions, that the action require a level or standard of control which at
least attains applicable or relevant and appropriate Federal or State environmental
or public health requirements, except in certain limited circumstances. A
requirement in applicable if the specific terms (or "jurisdictional prerequisites")
of the law or regulation directly address the circumstances at a site. If not
applicable, a requirement may nevertheless be relevant and appropriate if
circumstances at the site are, based on best professional judgment (BPJ) ,
sufficiently similar to the problems or situations regulated by the requirement.
Exhibit 1-9 to this chapter lists the universe of ARARs,8 without reference to
particular situations where they may apply. Exhibits 1-1, 1-2, and 1-3 of this
chapter list potential chemical-specific, location-specific, and action-specific
ARARs, respectively; these potential ARARs should be analyzed to determine ARARs for
a specific CERCLA site.
7 Superfund Public Health Evaluation Manual, OSWER Directive 9285.4-1,
October, 1986.
EPA has identified a comprehensive list of statutory and regulatory
requirements from which potential ARARs for a particular CERCLA site may be
drawn. While every effort has been made to develop a complete list, some
requirements, such as those recently promulgated, may not be included.
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Because of the varied and unpredictable situations at CERCLA sites, EPA cannot
specify in advance which requirements will be ARAR for each site. Applicable or
relevant and appropriate requirements must be identified in connection with the
characteristics of the particular site, the substances at the site, and the remedial
action alternatives that are suggested by the circumstances of the site. In order to
identify ARARs correctly and in a timely manner for on-site actions where permits
are not required, each EPA Region should establish procedures, protocols, or
memoranda of understanding to ensure early and continuous cooperation and
coordination with Regional Superfund staff, appropriate Regional and State offices
and other Federal arencies. These procedures should not recreate the administrative
and procedural aspects of the permit process, but should ensure that all substantive
requirements are attained. Section 3.2.4 of this Compliance Manual addresses key
areas for recommended coordination between Superfund and Water Offices, and includes
a detailed discussion that may be adopted as needed for other environmental laws.
The diagram on p. 1-7 provides an overview of critical points for
identification of ARARs and for communication/coordination with other EPA offices,
States, and other Federal agencies as appropriate to identify and ensure compliance
with ARARs. Superfund staff should also consider Federal and State environmental and
public health criteria, advisories, guidance, and proposed standards
("to-be-considered" materials, or TBCs). TBCs will be evaluated along with ARARs as
part of the risk assessment conducted for each CERCLA site, and may be used to set
protective cleanup level targets.
Coordination between CERCLA (Superfund) and other Program Offices
In order to identify ARARs correctly and in a timely manner, each EPA Region
should establish procedures, protocols or memoranda of understanding that, while not
recreating the administrative aspects of a permit, ensure early and continuous
cooperation and coordination between the Regional Superfund and other program
offices. In addition, State Superfund and other program offices may be involved
where there is a State-lead action or where the State has been delegated authority
under the Clean Water Act or under the Resource Conservation and Recovery Act. Other
Federal agencies may assist in ARARs determination for laws which they administer,
e.g., the Endangered Species Act. Coordination among all appropriate offices should
be established. Such coordination will be particularly important for on-site actions
where no Federal, State, or local permit is required.
The process of identifying ARARs for remedial actions essentially begins after
the site characterization (during the remedial investigation) and may continue
through the remedial design phase. ARARs are identified in increments of increasing
certainty as more information regarding the site is developed. The appropriate scope
and extent of each Region's coordination procedures for identifying ARARs should be
determined by the Region. It is recommended that the description of roles and
responsibilities should identify those steps in the Superfund remedy selection
process where coordination will occur and the level of involvement anticipated for
each of these stops (e.g., written comments at certain stages, routing procedures,
and agreement as
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Points Where ARARs are Identified and Communicated
Remedial Investigation:
*
*
n
-J
o
*
*
*
Scoping of
the RI/FS
• Initiate
preliminary
discussion
of probable
ARARs by
lead and
support
agencies2
Site
Characterisation
When data complete:
• Identify location-,
and chemical- '
specific ARARs
• Coordination:
-between lead and
support attack*
-between lead/
support agencies
and other
program offices or
other Federal/
State agencies
Development
of Alternatives
• Preliminary
consideration
of action-
specific
ARARs
Post-Screening
Investigation
i
Screening of
Alternatives
• Notify support
agencies, other
program offices
and other Federal/
Slate agencies of the
alternatives passing
initial screening
• Begin identification
of action-specific
ARARs
Detailed Analysis
of Alternatives
• Complete
cation of i
specific A
before con
analysis b<
• For each a
discuss rat
aNARARi
detenninal
(including
RI/FS Rep
(see RI/FS
identifi-
iclion-
RARs
iparative
egins
Itemative,
onale for
ions
waivers) in
orl
Guidance)
Selection of
Preferred
Alternative
• State in Proposed Plan
whether each alternative
will comply with all
Identified ARARs and/or
provide grounds for
invoking waivers
• Provide Proposed
Plan and RI/FS report to
support agency for review
• And for Enforcement -
Lead Sites:
- 30 day notice to
State required if
remedy not to attain
ARAR (use of waiver)
- If Stale does not concur
it may intervene under
$106 to "seek to" have the
remedial action conform
to ARAR
-•
Record of Decision
(ROD)
• Summarize ARAR
compliance in ROD
• Provide ROD to
support agencies
for review
*
Remedial Design/
Action
• If appropriate, identify
additional ARARs
based upon design
specifications/changes
• Verify protect! veness
of remedy if signifi-
cant new ARARs are
promulgated
• Review ARARs if re-
medial action is sig-
nificantly different
than ROD
Feasibility Study:
' This chart highlights critical points for communication between lead and support agencies in identifying ARARs and TBCs. As noted, EPA and the State should provide
opportunities for consultation with other FtderallStalt program offices, and with other Federal/State agencies as appropriate to assist in identification of ARARs:
The Region or State may determine that the RI/FS report. Proposed Plan, or ROD should be shared with other EPA/State program offices or other Federal agencies.
In general. Federal and Stale agencies should assume responsibility for coordinating tht involvement of their respective program offices and other agencies in developing
information on ARARs. The appropriate proctdurts for such consultation should bt developed by EPA Regional offices and by tht Federal and Slate programs/agencies
respectively.
Copies of draft and final RI/FS workplan sent to other EPA/State offices as appropriate.
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1-8
to what constitutes timely notification and timely response between Superfund and
other Regional and State program offices, and other Federal agencies).
1.2.1 WHERE AND WHEN ARARs SHOULD BE ATTAINED
ARARs (and materials "to be considered" for protectiveness — TBCs) must be
attained for hazardous substances remaining on-site at the completion of the
remedial action. In addition, EPA intends that the implementation of remedial
actions should also comply with ARARs (and TBCs as appropriate) to protect public
health and the environment. All remedial actions should attain action-specific
requirements that have been identified as ARAR while the remedial action is being
conducted, unless a waiver is justified. However, if ARARs are not being met before
the commencement of a remedial action, it is not necessary to invoke a waiver to
justify their non-attainment during the action.
Generally, EPA's policy is to attain ARARs (and TBCs necessary for protection)
pertaining either to contaminant levels or to performance or design standards to
ensure protection at all points of potential exposure. At sites where a TBC value is
used to set a protective level of cleanup or where the ARAR does not specify the
point of compliance, there is discretion to determine where the requirement shall be
attained to ensure protectiveness. At each potential point of exposure, a reasonable
maximum exposure scenario should be assumed, and cleanup goals set accordingly to
ensure protectiveness, using best professional judgment. Restrictions on use or
access should not be a substitute for remediation to appropriate protective
health-based or design levels. If active measures are not practicable (or
cost-effective), exposure to the waste must be controlled through legally
enforceable institutional means. "Non-engineered" or "exposure" controls may be used
in certain circumstances in combination with "engineered" controls and/or treatment
in the management and cleanup of the site where it is determined that such controls
are necessary to be protective. In such circumstances, where exposure controls are
used, restrictions should be employed to ensure that the controls remain in place,
that they remain protective, and that they are effective in preventing exposure to
hazardous substances for as long as the substances at the site remain hazardous. Any
waste left in place should either be brought to health-based levels or managed
according to performance or design specifications.
For ground water, remediation levels should generally be attained throughout
the contaminated plume, or at and beyond the edge of the waste management area when
waste is left in place. For air, the selected level(s) should be established for the
maximum exposed individual, considering reasonably expected use of the site and
surrounding area. For surface waters, the selected level(s) should be attained at
the point or points where the release enters the surface waters.
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1.2.1.1 Requirements for Handling of Investigation-Derived or Laboratory
Wastes
The handling, treatment, or disposal of investigation-derived wastes produced
during remedial activities such as the Site Investigation (SI) or Remedial
Investigation/Feasibility Study (RI/FS) must be carried out in compliance with
Federal and State ARARs. Field investigation teams should use best professional
judgment in determining when investigation-derived wastes may contain hazardous
wastes in hazardous amounts, and should handle such wastes in accordance with all
Federal and State ARARs.9 Similarly, if the hazards of investigation-derived wastes
are not known, EPA expects that field investigation teams will make a reasonable
effort to comply with all requirements that may be relevant and appropriate, as
necessary to protect public health and the environment.10
Specifically, there are several ways that investigation-derived wastes
may result from such remedial activities: (1) ground water or surface water
samples that must be disposed of after analysis; (2) drill cuttings or core
samples from soil boring or monitoring well installations; (3) purge water
removed from sampling wells before ground water samples are collected; move (4)
water, solvents, or other fluids used to decontaminate field equipment such as
backhoes, drilling rigs, and pipes; (5) condensation from pipes used for gas
sampling in landfills; and (6) waste produced by on-site pilot-scale facilities
constructed to test technologies best suited for remediation of the site. Note
that the activities conducted as part of the Superfund Innovative Technologies
Evaluation (SITE) program under CERCLA §311(b) are not response actions and
therefore are not required to comply with ARARs. Nonetheless, in order to ensure
protection of human health and the environment, SITE demonstration projects
taking place at Superfund sites should comply with the substantive requirements
of all applicable or relevant and appropriate Federal and State environmental
laws unless a waiver is justified.
10 The handling, treatment, or disposal of any such investigation-derived
wastes must satisfy Federal and State requirements that are applicable or
relevant and appropriate to the site location and the amount and concentration of
the hazardous substances, pollutants, or contaminants involved. For example, if
ground water samples containing hazardous substances are to be disposed of by
discharge into surface water, they may require treatment before disposal so that
water quality standards are not violated. Also, if it is known or suspected that
purge waters are drawn from an area with significant dioxin contamination, such
investigation-derived wastes should be containerized, tested, and disposed of in
accordance with all ARARs. (Consistent with established practice,
investigation-derived materials may remain on-site until the remedial action
commences.) In contrast, the routine placement in containers of large volumes of
drilling muds and purge waters which are not suspected to contain hazardous
substances may be unnecessary because they result only in delays to investigation
with no attendant public health or environmental benefit.
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1.2.2 DEFINITIONS OF APPLICABLE AND RELEVANT AND APPROPRIATE
The following definitions of "applicable" and "relevant and appropriate" will
be proposed in the new NCP and retain the essential features of definitions in the
current NCP:
Applicable requirements means those cleanup standards, standards of
control, and other substantive environmental protection requirements,
criteria, or limitations promulgated under Federal or State law that
specifically address a hazardous substance, pollutant, contaminant,
remedial action, location, or other circumstance at a CERCLA site.
"Applicability" implies that the remedial action or the circumstances at the site
satisfy all of the jurisdictional prerequisites of a requirement. For example, the
minimum technology requirement for landfills under RCRA would apply if a new
hazardous waste landfill unit or a lateral expansion of an existing unit as
defined11 were to be built on a CERCLA site.
If a requirement is not applicable, one must consider whether it is both
relevant and appropriate.
Relevant and appropriate requirements means those cleanup standards,
standards of control, and other substantive environmental protection
requirements, criteria, or limitations promulgated under Federal or State
law that, while not "applicable" to a hazardous substance, pollutant,
contaminant, remedial action, location, or other circumstance at a CERCLA
site, address problems or situations sufficiently similar to those
encountered at the CERCLA site that their use is well suited to the
particular site. However, in some circumstances, a requirement may be
relevant but not appropriate for the site-specific situation.
The determination that a requirement is relevant and appropriate is a two-step
process: (1) determination if a requirement is relevant and (2) determination if a
requirement is appropriate. In general, this involves a comparison of a number of
site-specific factors, including the characteristics of the remedial action, the
hazardous substances present at the site, or the physical circumstances of the site,
with those addressed in the statutory or regulatory requirement. In some cases, a
requirement may be relevant, but not appropriate, given site-specific circumstances;
such a requirement would not be ARAR for the site. In addition, there is more
discretion in the determination of relevant and appropriate; it is possible for only
part of a requirement to be considered relevant and appropriate in a given case.
11 Defined in RCRA §3015 (b) and 40 CFR 264.301(c) and 265.301(a)
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The first step of this determination is a screen of the requirements based on
the factors listed in Exhibit 1-7 to determine if the requirement is potentially
relevant at the site. If the requirement is relevant, then the comparison should be
further refined to determine if the requirement is appropriate, focusing on the
characteristics of the site and the proposed remedial action. The determination that
a requirement is relevant and appropriate is site-specific and must rely on best
professional judgment.
When the analysis results in a determination that a requirement is both
relevant and appropriate, such a requirement must be complied with to the same
degree as if it were applicable.
More detailed discussion of the determination of relevance and appropriateness
is provided in section 1.2.4.3 following.
1.2.2.1 Definitions of Substantive and Administrative Requirements
Section 121(e) of CERCLA codifies EPA's earlier policy that on-site response
actions may proceed without obtaining permits. This permit exemption allows the
response action to proceed in an expeditious manner, free from potential lengthy
delays of approval by administrative bodies. This permit exemption applies to all
administrative requirements, whether or not they are actually styled as "permits."
Thus, in determining the extent to which on-site CERCLA response actions must comply
with other environmental and public health laws, one should distinguish between
substantive requirements, which may be applicable or relevant and appropriate and
administrative requirements, which are not. The determination of whether a
requirement is substantive need not be documented.
Substantive requirements are those requirements that pertain directly to
actions or conditions in the environment. Examples of substantive requirements
include quantitative health- or risk-based restrictions upon exposure to types of
hazardous substances (e.g. MCLs establishing drinking water standards for particular
contaminants), technology-based requirements for actions taken upon hazardous
substances (e.g. incinerator standards requiring particular destruction and removal
efficiency), and restrictions upon activities in certain special locations (e.g.
standards prohibiting certain types of facilities in floodplains).
Administrative requirements are those mechanisms that facilitate the
implementation of the substantive requirements of a statute or regulation.
Administrative requirements include the approval of, or consultation with
administrative bodies, consultation, issuance of permits, documentation,
reporting,12 recordkeeping, and enforcement. In general, administrative requirements
prescribe methods and procedures by which substantive requirements are made
effective for purposes of a particular environmental or
12 Note that some requirements may be written to contain substantive
requirements in sections which primarily address administrative requirements
such as reporting.
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public health program. For example, the requirement of the Fish and Wildlife
Coordination Act to consult with the U.S. Fish and Wildlife service, Department of
the Interior, and appropriate State agency before controlling or modifying any
stream or other water body is administrative.
This distinction is important because while off-site remedies must obtain all
necessary permits and fulfill all administrative procedures, cleanup activities that
remain on-site are statutorily exempted by CERCLA §121(e) from obtaining permits.
While Superfund cleanups will comply with all the substantive requirements that
permits enforce, on-site CERCLA cleanups are not required to obtain the actual
permit papers, or to obtain the approval of State or local administrative boards.
Instead, the Feasibility Study, the Proposed Plan, the ROD, the Community Relations
Plan, and the Administrative Record will document that the substantive requirements
of other Federal and State laws have been identified and will be complied with.
The CERCLA program has its own set of administrative procedures which assure
proper implementation of CERCLA. The application of additional or conflicting
administrative requirements could result in delay or confusion.
In most cases, the classification of a particular requirement as substantive
or administrative will be clear, but some requirements may fall in the area between
provisions related primarily to program administration and those concerned primarily
with environmental and human health goals. The following considerations may be
balanced in determining whether such requirements are substantive or administrative:
•• The basic purpose of the requirement;
• Any adverse effect on the ability of the action to protect human health and
the environment if the requirement were not met;
• The existence of other requirements (e.g., CERCLA procedures) at the site
that would provide functionally equivalent compliance;
• Classification of similar or identical requirements as substantive or
administrative in other CERCLA situations.
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1.2.3 TYPES OF ARARs
The laws and regulations that establish the universe of applicable or relevant
and appropriate requirements are listed in Exhibit 1-9 at the end of this chapter.
Exhibit 1-9 offers an overview of ARARs and is provided for reference purposes.
Exhibits 1-1, 1-2, and 1-3 present potential chemical-, location-, and
action-specific ARARs respectively, and must be examined in light of site-specific
circumstances to determine the actual ARARs for each site. These exhibits will be
expanded or revised as necessary to reflect changes in the laws or in regulations.
An automated Federal ARARs database will be developed.
The manual also includes in Exhibit 1-10 other Federal (and selected State)
criteria, advisories, and guidance to be considered (TBCs). TBCs are not ARARs, but
chemical-specific TBC values such as health advisories and reference doses will be
used in the absence of ARARs or where ARARs are not sufficiently protective to
develop cleanup goals (see discussion of risk assessment in Section 1.2.3.1 below).
In addition, other TBC materials such as guidance or policy documents developed to
implement regulations may be considered and used as appropriate, where necessary to
ensure protectiveness.
1.2.3.1 Chemical-Specific Requirements
Chemical-specific ARARs are usually health- or risk-based numerical values or
methodologies which, when applied to site-specific conditions, result in the
establishment of numerical values. These values establish the acceptable amount or
concentration of a chemical that may be found in, or discharged to, the ambient
environment.13 If a chemical has more than one such requirement that is ARAR, the
most stringent generally should be complied with. There are, at present, only a
limited number of chemical-specific requirements.
The results of a risk assessment, following the procedures in the Superfund
Public Health Evaluation Manual (SPHEM), are used in setting cleanup goals that are
protective. As described in the SPHEM, the total carcinogenic risk or hazard index
for all chemicals of concern in a medium in calculated in this risk assessment. As a
starting point for setting cleanup goals, the risk calculations are developed using
chemical-specific requirements. If there are no chemical-specific ARARs, then
specified Federal or State TBC values are used in the calculations.
In general, chemical-specific requirements are set for a single chemical or
closely-related group of chemicals. Those requirements typically do not consider the
mixtures of chemicals that may be found at Superfund sites. Therefore, due to
site-specific factors, cleanup goals set at the levels of
13 Some Federal or State statutes, such as the Clean Water Act, may
establish a methodology for setting site-specific discharge limitations. Such
requirements may also be ARARs, depending on site-specific considerations.
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single chemical-specific requirements may not adequately protect human health or the
environment at that site. In these instances, cleanup goals would be set below the
chemical-specific requirements (i.e., at more stringent levels). Similarly, cleanup
goals at a site may also be set below the TBC value in order to protect human health
and the environment.
Exhibit 1-1 provides a matrix of chemical-specific standards established under
several statutes. These chemical-specific requirements will generally be more likely
to be relevant and appropriate rather than applicable to CERCLA actions. Chapters 2
through 4 provide detailed guidance in evaluating these potential ARARs. It will be
necessary to examine these standards in light of site-specific circumstances to
determine actual ARARs for each site. At present, Exhibit 1-1 contains standards
developed under the Resource Conservation and Recovery Act (RCRA), the Safe Drinking
Water Act (SDWA), and the Clean Water Act (CWA), but does not include standards
developed under other environmental laws, such as programs for the protection of air
quality (e.g., National Ambient Air Quality Standards). As additional statutes are
analyzed, the matrix will be expanded to include any standards established under
those statutes that are potential ARARs.
The following chemical-specific standards are included in the matrix:
RCRA Maximum Concentration Limits. Standards (abbreviated as RCRA MCLs) for 14
toxic compounds, primarily toxic metals and pesticides, have been adopted as a
part of RCRA ground-water protection standards (40 CFR §264.94). These
ground-water protection standards are equal to MCLs established under the
National Primary Drinking Water Standards, based on the 1962 Public Health
Service Regulations under the Safe Drinking Water Act (SDWA). The basic
jurisdictional prerequisites for RCRA MCLs are part of the RCRA ground-water
monitoring and response requirements, which apply to RCRA regulated units
subject to permitting (landfills, surface impoundments, waste piles, and land
treatment units) that received RCRA hazardous waste after July 26, 1982. If a
comparison of indicator concentrations from background and downgradient wells
shows a statistically significant increase, a ground-water protection standard
is established for all hazardous constituents. The baseline protection
standard is the background level of the constituent, or one of the 14 RCRA
MCLs, whichever is higher. Alternatively, an alternate concentration limit
(ACL) may be applied for and granted on a site-specific basis, if the
constituent (in the quantity specified in the ACL) will not pose a substantial
present or potential hazard to human health and the environment.
SDWA Maximum Contaminant Levels. Standards (also abbreviated as MCLs) for 30
toxic compounds, including the 14 compounds adopted as RCRA MCLs, have been
adopted as enforceable standards for public drinking water systems (40 CFR
§§141.11-141.16). MCLs for non-carcinogens are based in part on the allowable
lifetime exposure to the contaminant for a 70 kg (154 pound) adult who is
presumed to consume 2 liters (0.53 gallons) of water per day. In addition to
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1-15
health factors, an MCL is required to reflect the technical and economic
feasibility of removing the contaminant from the water supply. MCLs for each
contaminant regulated must be set as close as feasible to the MCL Goal for
that contaminant, given the best available technology and treatment
techniques. The basic jurisdictional prerequisite for MCLs is that they apply
to "public water systems," defined as systems for the provision of piped water
for human consumption with at least 15 service connections or serving at least
25 persons. The SDWA Amendments of 1986 require EPA to promulgate National
Primary Drinking Water Standards for 83 contaminants within three years.
Thereafter, EPA is required to promulgate standards for 25 more contaminants
every three years.
SDWA MCL Goals. MCL Goals (MCLGs) (formerly known as recommended MCLs or
RMCLs) are non-enforceable health goals for public water systems. EPA has
promulgated MCLGs for 9 contaminants (40 CFR §§141.50-141.51), and has
proposed MCLGs for 40 others (50 FR 46936). MCLGs are set at levels that would
result in no known or anticipated adverse health effects with an adequate
margin of safety. MCLGs for substances considered to be probable human
carcinogens are set at the zero level, and MCLGs for substances that are not
probable human carcinogens are set based upon chronic toxicity or other data.
MCLGs are potentially relevant and appropriate standards under CERCLA §121.
Water Quality Criteria (WOO . CERCLA §121 states that remedial actions shall
attain Federal water quality criteria where they are relevant and appropriate
under the circumstances of the release or threatened release. This
determination is to be based on the designated or potential use of the water,
the media affected, the purposes of the criteria, and current information.
Water quality criteria are non-enforceable guidance developed under Clean
Water Act (CWA) §304 and are used by the State, in conjunction with a
designated use for a stream segment, to establish water quality standards
under §303. In determining the applicability or relevance and appropriateness
of water quality criteria, the most important factors to consider are the
designated uses of the water and the purposes for which the potential
requirements are intended. A water quality criteria component for aquatic life
may be found relevant and appropriate when there are environmental factors
that are being considered at a site, such as protection of aquatic organisms.
With respect to the use of water quality criteria for protection of human
health, levels are provided for exposure both from drinking the water and from
consuming aquatic organisms (primarily fish) and from fish consumption alone.
Whether a water quality criterion is relevant and appropriate and which form
of the criterion is appropriate depends on the likely route(s) of exposure. A
summary of water quality criteria may be found in Quality Criteria for Water
1986, EPA 44/5-86-001, May 1, 1986 (51 Federal Register 43665) - commonly
referred to as the "Gold Book."
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EXHIBIT 1-1
SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS ,
RCRA AND SDWA MCLS
Potential ARARs b/
Chemical Name
Arsenic
Barium
Benzene
Beta Particle Photon Radioactivity
Cadmium
Carbon Tetrachloride
Chromium
Coliform Bacteria
p-Dichlorobenzene
1,2-Dichloroethane
1 , 1 -Dichloroethylene
2-4-Dichlorophenoxyacetic Acid (2,4-D)
Endrin
Fluoride
Lead
Lindane
Total Mercury
Methoxychlor
Nitrate (as N)
Radionuclides, gross alpha particle activity
Radium-226 + Radium-226
Selenium
Silver
Toxaphene
2,4,5-TP Silvex
1,1,1 -Trichloroethane
Trichloroethylene
Total Trihalomethanes
Turbidity
Vinyl Chloride
RCRA Maximum
Concentration
Limits
(mg/1)
5. Ox 10'2
1.0
l.Ox 10'2
5. Ox 10'2
l.Ox 10'1
2. Ox 10'4
5. Ox 10'2
4. Ox 10'3
2. Ox 10'3
l.Ox 10'1
l.Ox 10'2
5. Ox 10'2
5. Ox 10'3
1.0 x 10"2
SDWA Maximum
Contaminant
Levels
(mg/1)
5. Ox 10'2
1.0
5. Ox 10'3
4 millirems
l.Ox 10'2
5. Ox 10'3
5. Ox 10'2
1 per 100ml
7.5 x 10'2
5. Ox 10'3
7. Ox 10'3
l.Ox 10'1
2. Ox 10'4
4.0
5. Ox 10'2
4. Ox 10'3
2. Ox 10'3
l.Ox 10'1
10
15 pCi/1
5 pCi/1
l.Ox 10'2
5. Ox 10'2
5. Ox 10'3
l.Ox 10'2
2. Ox 10'1
5. Ox 10'3
l.Ox 10'1
1 Tu
2. Ox 10'3
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EXHIBIT 1-1 (continued)
SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Potential ARARs
Chemical Name
Acenapthene
Acenaphthylene
Acrolein
Acrylonitrile
Aldrin
Anthracene
Antimony and Compounds
Arsenic and Compounds
Arsenic (V) and Compounds
Arsenic (III) and Compounds
CWA Water
for Protection
Water and
Fish Ingestion
(mg/1)
3.2x10-01
5.8x10-05
7.4x10-08
1.5x10-01
2.2x10-06
Quality Criteria
of Human Health
Fish Consumption
Only
(mg/1)
7.8x10-01
6.5x10-04
7.9x10-08
45
1.8x10-05
CWA
Freshwater
For Use In Special
b/ Circumstances
Ambient Water Quality Criteria for
Protection of Aquatic Life c/
Marine
Acute/Chronic Acute/Chronic SDWA/MCL Goal
(mg/1)
1.7*/0.5*
6.8xlO-02*/2
7.5*/2.6*
3.0x10-03
9.0/1.6
(mg/1) (mg/1) d/
0.9*/0.7*
3.0x10-01*
.1x10-02* 5.5x10-02*
1.3x10-03
0.8*/4. 8x10-02* 2.3*/l. 3x10-02
0.3/0.1
6.9x10-02/3.6x10-02
Asbestos
Barium and Compounds
Benz(a)anthracene
Benz(c)acridine
Benzene
Benzidine
Benzo(a)pyrene
Benzo(b)fluoranthene
Benzo(ghi)perylene
Benzo (k) fluorantene
Beryllium and Compounds
Bis(2-chloroethyl)ether
Bis(2-chloroisopropyl)ether
Bis(chloromethyl)ether
6.6x10-04
1.2x10-04
4.0x10-02
5.3x10-04
1.2x10-04
5.3*
2.5*
0.1*/5.3x10-03*
5.1*/0.7*
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EXHIBIT 1-1 (continued)
SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Potential ARARs b/
Chemical Name
Cadmium and Compounds
Carbon Tetrachloride
Chlordene
Chlorinated Benzenes
Chlorinated Napththalenes
Chloroalkyl Ethers
Chlorobenzene (Mono)
Chlorodibromom ethane
Chloroform
2-Chlorophenol
Chromium III and Compounds
Chromium VI and Compounds
Copper and Compounds
Cyanides
DDT
Dibutyl Phthalate
Dichlorobenzenes
1 ,2-Dichlorobenzene
1,3-Dichlorobenzene
1 ,4-Dichlorobenzene
3 ,3 '-Dichlorobenzidine
1,2-Dichloroethane (EDC)
Dichloroethylene s
CWA Water Quality Criteria
for Protection of Human Health
Water and Fish Consumption
Fish Ingestion Only
(mg/1) (mg/1)
1.0x10-02
4.0x10-04 6.9x10-03
4.6x10-07 4.8x10-07
1.9x10-04 1.8x10-02
170 3433
5.0x10-02
2x10-01
2.4x10-08 2.4x10-08
35 154
4x10-01 2.6
1x10-04 2x10-05
9.4x10-04 2.4x10-01
3.3x10-05 1.9x10-03
CWA Ambient Water
For Use In Special
Circumstances
Quality Criteria for
Protection of Aquatic Life c/
Freshwater
Acute/Chronic
(mg/1)
3. 9xlO-03+/l. 1x10-03+
3.5x10+01
2.4x10-03/4.3x10-06
2. 5xlO-01*/5. 0x10-02*
1.6*
2.3x10+02*
2.8xlO+01*/1.2*
4.3*/2.0*
1.7+/0.2+
1.6x10-02/1.1x10-03
1.8xlO-02+/l. 2x10-02+
2.2x10-02/5.2x10-03
1.1x10-03/1.0x10-06
1.1*11. 6x10-01*
l.lxlO+02*/2. 0x10+01*
Marine
Acute/Chronic SDWA/MCL Goal
(mg/1) (mg/1) d/
4.3x10-02/9.3x10-02
5.0x10+01 0
9.0x10-05/4.0x10-06
1.6xlO-01*/l. 2x10-01*
7.5x10-03*
1.0x10+01
1.1/5.0x10-02
2.9x10-03/2.9x10-03
1.0x10-03/1.0x10-03
1.3x10-04/1.0x10-06
1.9*
7.5x10-01
1.1x10+02* 0
1.1x10+1* 2.2+02*
* * *
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EXHBIT 1-1 (continued)
SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQURIEMENTS a/
Potential ARARs b/
For Use In Special
Circumstances
CWA Water Quality Criteria
for Protection of Human Health
CWA Ambient Water Quality Criteria for
Protection of Aquatic Life c/
Chemical Name
1 , 1 -Dichloroethylene
2,4-Dichlorophenol
Water and
Fish Ingestion
(mg/1)
3.1
Fish Consumption
Only
(mg/1)
Freshwater
Acute/Chronic
(mg/1)
1.1x10+01*
2.0*/0.3*
Marine
Acute/Chronic
(mg/1)
2.2x10+02*
SDWA/MCL Goal
(mg/1) d/
7.0x10-03
2,6-Dichlorophenol
3,4-Dichlorophenol
2,3-Dichlorophenol
2,5-Dichlorophenol
2,4-Dichlorophenoxyacetic Acid (2,4-D)
1,3-Dichloropropene
Dieldrin
Diethylphthalate
Bis(2-ethylhexyl)phthalate (DEHP)
Diethylnitrosamine
7,12-Dimethylbenz(a)anthracene
Dimethylnitrosamine
2,4-Dimethylphenol
Dimethylphthalate
4,6-Dinitro-o-cresol
2,4-Dinitrophenol
1,2-Diphenylhydrazine
Endosulfan
Endrin
Ethylbenzene
Fluoranthene
Fluorides
8.7x10-02
7.1x10-08
350
313
7.4x10-02
1x10-03
1.4
4.2x10-02
14.1
7.6x10-08
1800
2900
1.6x10-01
3.3
5.4x10-02
4.0
6.0*/0.2*
2.5x10-03/1.9x10-06
0.7*
0.7x10-03/1.9x10-06
7.0x10-03
2.1*
2.2x10-04/5.6x10-05
1.8x10-04/2.3x10-06
3.2x10+01
3.9*
3.4x10-05/8.7x10-06
3.7x10-05/2.3x10-06
4.3x10-01*
4.OxlO-02*/l.6x10-02*
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EXHIBIT 1-1 (continued)
SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Potential ARARs b/
Circumstances
CWA Water Quality Criteria CWA Ambient Water Quality Criteria for
for Protection of Human Health Protection of Aquatic Life c/
Water and Fish Consumption Freshwater Marine
Fish Ingestion Only Acute/Chronic Acute/Chronic SDWA/MCL Goal
Chemical Name
Heptachlor
Hexachlorobenzene
Hexacalorobutadiene
alpha-Hexachlorocyclohexane (HCCH)
gamma-HCCH (Lindane)
Technical-HCCH
Hexachlorocyclopentadiene
Hexachloroethane
lodomethane
Isophorone
Lead and Compounds (Inorganic)
Mercury and Compounds (Alkyl)
Mercury and Compounds (Inorganic)
Methoxychlor
Methyl Chloride
2-Methyl-4-chlorophenol
3 -Methyl-4-chlorophenol
3-Methyl-6-chlorophenol
3-Monochlorophenol
4-Monochlorophenol
Nickel and Compounds
Nitrate (as N)
Nitrobenzene
Nitrophenols
(mg/1) (mg/1)
2.8x10-07 2.9x10-07
7.2x10-07 7.4x10-07
4.5x10-04 5x10-02
9.2x10-06 3.1x10-05
1.2x10-05 4.1x10-05
2.1x10-01
1.9x10-03 8.74x10-03
5x10-02
1.4x10-04 1.5x10-04
1x10-01
1.3x10-10 1x10-01
10
20
(mg/1)
5.2x10-04/3.8x10-06
9.0x10-02/9.3x10-03*
7. OxlO-03*/5. 2x10-03*
9. 8xlO-01*/5. 4x10-01*
1.17x10+02*
8.0x10-02/3.2x10-03*
2.4x10-03/1.2x10-05
2.4x10-03/1.2x10-05
0.3x10-04*
1.4+/1. 6x10-01 +
2.7x10+01*
2. 3xlO-01*/l. 5x10-01*
(mg/1) (mg/1) d/
5.3x10-05/3
3.2x10-02*
7.0x10-03*
9.4x10-01*
1.2x10+01*
.6x10-06
0.1/5.6x10-03
2.14xlO-03/
2.1x10-03/2
0.3x10-04*
7.5x10-02/8
6.6
4.8*
2.5x10-05
.5x10-05
.3x10-03
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EXHBIT 1-1 (continued)
SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Potential ARARs b/
Chemical Name
Nitrosamines
n-Nitrosodiphenylamine
N-Nitrosopyrrolidine
Para Dichorobenzene
Pentachlorinated Ethanes
Pentachlorobenzene
Pentachlorophenol
Phenanthrene
Phenol
Phthalate Esters
Polychlorinated Biphenyls (PCBs)
Radionuclides, Gross alpha activity
Radium 226 and 228
Selenium and Compounds
Silver and Compounds
Strontium-90
2,3,7,8-TCDD (Dioxin)
Tetrachlorinated Ethanes
1, 2,4,5 -Tetrachlorobenzene
1 , 1 ,2,2-Tetrachlorethane
Tetrachloroethanes
Tetrchloroethylene
2,3,4,6-Tetrachlorophenol
Thallium Compounds
CWA Water
for Protection
Water and
Fish Ingestion
(mg/1)
4.9x10-03
1.6x10-05
7.4x10-02
1
3.5
7.9x10-08
1.0x10-02
5.0x10-02
3.8x10-02
1.7x10-04
8x10-04
1.3x10-02
Quality Criteria
of Human Health
Fish Consumption
Only
(mg/1)
1.6x10-02
9.2x10-02
8.5x10-02
7.9x10-08
15 pCil
5 pCi/1
1.0x10-02
5.0x10-02
8 pCi/1
4.8x10-02
1.1x10-02
8.9x10-03
4.8x10-02
For Use In Special
Circumstances
CWA Ambient Water Quality Criteria for
Protection of Aquatic Life c/
Freshwater
Acute/Chronic
(mg/1)
5.8*
7.2*/l.l*
2.0x10-02/1.3x10-02
1.0x10+01/2.5
9. 4xlO-01*/3. 0x10-03*
2.0x10-03/1.4x10-05
2.6x10-01/3.5x10-02
4. lxlO-03+/l. 2x10-04
<1.0xlO-05*/
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1-22
EXHIBIT 1-1 (continued)
SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Potential ARARs b/
CWA Water Quality Criteria
Chemical Name
Toluene
Toxaphene
Tribromomethane (Bromoform)
Trichlorinated Ethanes
1,1,1 -Trichloroethane
1 , 1 ,2-Trichloroethane
Trichloroethylene
for Protection
Water and
Fish Ingestion
(mg/1)
14
7.1x10-07
18
6x10-04
2.7x10-03
of Human Health
Fish Consumption
Only
(mg/1)
420
7.3x10-07
1000
4.2x10-02
8.1x10-02
CWA Ambient Water Quality Criteria for
Protection of Aquatic Life c/
Freshwater Marine
Acute/Chronic Acute/Chronic
(mg/1) (mg/1)
1.7x10+01* 6.3*/5.0*
7.3x10-04/2.0x10-07 2.1x10-04/2x10-7
1.8x10+01*
3.1x10+01*
9.4*
4. 5xlO+01*/2. 1x10+01* 2.0*
For Use In Special
Circumstances
SDWA/MCL Goal
(mg/1) d/
2.0x10-01
0
Trichloromonofluoromethane
2,4,5-Trichlorophenol
2,4,6-Trichlorophenol
2,4,5-Trichlorophenoxypropionic Acid
Trihalomethanes (Total) b
Tritium
Vinyl Chloride
Zinc and Compounds
1.2x10-03
2x10-03
3.6x10-03
5.3x10-01
9.7X10-01*
1.3x10-01/1.1x10-01
9.6x10-02/8.6x10-02
a/ Additional chemical-specific requirements will be added (e.g. National Ambient Air Quality Criteria) after analysis of additional statutes.
b/ When two or more values conflict, the lower value generally should be used.
c/ Federal water quality criteria (FWQC) are not legally enforceable standards, but are potentially relevant and appropriate to CERCLA actions. CERCLA §121(d)(2)(B)(i) requires consideration
of four factors when determining whether FWQC are relevant and appropriate: 1 the designated or potential use of the surface or groundwater, 2) the environmental media affected, 3) the
purposes for which such criteria were developed, and 4) the latest information available.
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d/ For water that is to be used for drinking, the MCLs set under the SDWA are generally the applicable or relevant and appropriate standards. A standard for drinking water more stringent than an
MCL may be needed in special circumstances, such as where multiple contaminants in ground water or multiple pathways of exposure present extraordinary risks. In setting a level more stringent
than the MCL in such cases, a site-specific determination should be made by considering MCLGs, the Agency's policy on the use of appropriate risk ranges for carcinogens (10-04 to 10-7
individual lifetime risk), levels of quantification, and other pertinent guidelines. Prior consultation with Headquarters is encouraged in such cases.
* Lowest Observed Effect level.
+ Hardness dependent criteria (100 mg/1 used); refer to specific criteria documents for equations to calculate criteria based on other water hardness values.
Sources: U.S. EPA, Superfund Public Health Evaluation Manual. EPA 540/1-86/060 (OSWER Directive 9285.4-1) October 1986 and U.S. EPA, Quality Criteria for Water 1986. EPA 440/5-86-
001, May 1986 (51 Federal Register 43665).
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1.2.3.2 Location-Specific Requirements
A site's location is a fundamental determinant of its impact on human health
and the environment. Location-specific ARARs are restrictions placed on the
concentration of hazardous substances or the conduct of activities solely because
they are in specific locations. Some examples of special locations include
floodplains, wetlands, historic places, and sensitive ecosystems or habitats. An
example of a location-specific requirement is the substantive CWA §404 prohibitions
of the unrestricted discharge of dredged or fill material into wetlands.
Exhibit 1-2 provides a matrix of location-specific requirements, established
under several statutes, that are potential ARARs. At present, the matrix contains
requirements established under a number of different environmental statutes. As
additional statutes are analyzed, the matrix will be expanded to include their
location-specific requirements.
The following location-specific requirements are included in the matrix:
RCRA Location Requirements. RCRA contains a number of explicit limitations on
where on-site storage, treatment, or disposal of hazardous waste may occur. In
addition to the location criteria already contained in RCRA regulations, the
Hazardous and Solid Waste Amendments of 1984 (HSWA) also mandate the
development of location requirements concerning vulnerable hydrogeology (see
RCRA §3004(o)(7)). When those regulations are promulgated, they will be added
to the matrix. It should be emphasized that guidance issued under RCRA also
should be considered when necessary to achieve protectiveness, but is not
binding (i.e., is not ARAR) for determining what actions should be taken at a
particular location.14 HSWA land disposal restrictions also prohibit placement
of hazardous wastes in certain formations (salt domes, salt bad formations,
and underground mines or caves) and list certain wastes, which will be
evaluated for prohibition by EPA under RCRA by August 8, 1988, June 8, 1989,
and May 8, 1990 (40 CFR §265.18, 40 CPR Part 268)
National Historic Preservation Act of 1966 (NHPA)*. Requires action to take
into account effects on properties included in or eligible for the National
Register of Historic Places and to minimize harm to National Historic
Landmarks.
14 RCRA guidance which may be considered includes: Permit Writers'
Guidance Manual for the Location of Hazardous Waste Land Storage and Disposal
Facilities: Phase I, Criteria for Location Acceptability and Existing
Regulations for Evaluating Locations (final draft), February 1985; Permit
Applicants' Guidance Manual for the General Facility Standards of 40 CFR 264 ,
SW-968, October 1983; and Guidelines for Ground-Water Classification Under the
EPA Ground-Water Protection Strategy , (final draft), December 1986.
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1-26
^Endangered Species Act. Requires action to avoid jeopardizing the continued
existence of listed endangered or threatened species or modification of their
habitat.
^Wilderness Act. Establishes nondegradation, maximum restoration, and
protection of wilderness areas as primary management principles.
*Fish and Wildlife Coordination Act. Requires action to protect fish and
wildlife from actions modifying streams or areas affecting streams.
*Wild and Scenic Rivers Act. Requires action to avoid adverse effects on
designated wild or scenic rivers.
*Coastal Zone Management Act. Requires activities affecting land or water uses
in a coastal zone to certify noninterference with coastal zone management.
Clean Water Act. Section 404 prohibits discharge of dredged or fill material
into navigable waters without a permit. CERCLA on-site actions do not require
a permit, but the substantive requirements of §404 regarding such a discharge
would be ARAR.15
40 CFR Part 6 Appendix A. Sets forth EPA policy for carrying out the
provisions of Executive Orders 11988 (Floodplain Management) and 11990
(Protection of Wetlands).16
*These and other statutes will be addressed in a later addition to this manual.
Note that Section 118(a)(1) of the CWA as amended by the Water Quality Act
(WQA) of 1987 specifically provides that the United States should seek to attain
the goals of the Great Lakes Water Quality Agreement (GLWQA), with particular
emphasis on the goals related to toxic pollutants. Section 118 (a) (1) also
provides that EPA should take the lead in the effort to meet the GLWQA goals.
Accordingly, the GLWQA will be very pertinent to sites having discharges to the
Great Lake drainage basin.
16
Executive orders are binding on the section of the government for which they
are issued.
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1-27
EXHIBIT 1-2
SELECTED LOCATION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Location
Requirement
Prerequisite
Citation
Within 61 meters (200 feet) of a fault
displaced in Honocene time
Within 100-year floodplain
Within floodplain b/
New treatment, storage, or disposal of
hazardous waste prohibited
Facility must be designed, constructed,
operated, and maintained to avoid washout
Action to avoid adverse effects, minimize
potential harm, restore and preserve natural
and beneficial values
RCRA hazardous waste; treatment, storage,
or disposal
RCRA hazardous waste; treatment, storage,
or disposal
Action that will occur in a floodplain, i.e.,
lowlands, and relatively flat areas adjoining
inland and coastal waters and other flood
prone areas
40 CFR264.18(a)
40CFR264.18(b)
Protection of floodplains, b/ (40 CFR 6,
Appendix A); Fish and Wildlife Coordination
Act (16 USC 661 et sea.); 40 CFR 6.302
Within salt dome formation, underground
mine, or cave
Within area where action may cause
irreparable harm, loss, or destruction of
significant artifacts
Historic project owned or controlled by
Federal agency
Critical habitat upon which endangered
species or threatened species depends
Placement of non-containerized or bulk
liquid hazardous waste prohibited
Action to recover and preserve artifacts
Action to preserve historic properties;
planning of action to minimize harm to
National Historic Landmarks
Action to conserve endangered species or
threatened species, including consultation
with the Department of Interior
RCRA hazardous waste; placement
40 CFR264.18(c)
Alteration of terrain that threatens significant National Historical Preservation Act (16 USC
scientific, prehistorical, historical or Section 469); 36 CFR Part 65
archaeological data
Property included in or eligible for the
National Register of Historic Places
Determination of presence of endangered or
threatened species
National Historic Preservation Act, Section
106 (16 USC 470 et sea.); 36 CFR Part 800
Endangered Species Act of 1973 (16 USC
1531 et sea.) 50 CFR Part 200, 50 CFR part
402 Fish and Wildlife Coordination Act (16
USC 661 et sea.(; 33 CFR Parts 320-330.
* * *
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1-28
EXHIBIT 1-2 (Continued)
SELECTED LOCATION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Location
Requirement
Prerequisite
Citation
Wetlands b/
Wilderness area
Wildlife refuge
Area affecting stream or river
Action to prohibit discharge of dredged or
fill material into wetlands without permit
Action to avoid adverse effects, minimize
potential harm, and preserve and enhance
wetlands, to the extent possible (see
discussion in section 3.4.4.1)
Areas must be administered in such manner
as will leave it unimpaired as wilderness and
to preserve its wilderness
Only actions allowed under the provisions of
16 USC Section 668 dd(c) may be
undertaken in areas that are part of the
National Wildlife Refuge System
Action to protect fish or wildlife
Within area affecting national wild, scenic, or Avoid taking or assisting in action that will
recreational river have direct adverse effect on scenic river
Within coastal zone
Within designated coastal barrier
Conduct activities in manner consistent with
approved State management programs
Prohibits any new Federal expenditure within
the Coastal Barrier Resource System
Wetland as defined in U.S. Army Corps of
Engineers regulations
Clean Water Act section 404; 40 CFR Parts
230, 33 CFR Parts 320-330.
Action involving construction of facilities or 40 CFR Part 6, Appendix A
management of property in wetlands, as
defined by 40 CFR Part 6, Appendix A,
section 4 (j)
Federally-owned area designated as
wilderness area
Area designated as part of National Wildlife
Refuge System
Diversion, channeling or other activity that
modifies a stream or river and affects fish or
wildlife
Activities that affect or may affect any of the
rivers specified in section 1276(a)
Activities affecting the coastal zone including
lands therein and thereunder and adjacent
shorelands
Activity within the Coastal Barrier Resource
System
Wilderness Act (16 USC 1131 et sefl.); 50
CFR 35.1 st seq.
16USC668dd et sea.; 50 CFR Part 27
Fish and Wildlife Coordination Act (16 USC
661 et sea.); 40 CFR 6.302
Wild and Scenic Rivers Act (16 USC 1271 et
seq. section 7 (a)); 40 CFR 6.302(e)
Coastal Zone Management Act (16 USC
Section 1451 et seq.)
Coastal Barrier Resources Act (16 USC 3501
et sea.)
a/ Additional location-specific requirements will be added after analysis of additional sources and will be included in a subsequent draft of this manual.
b/ 40 CFR Part 6 Subpart A sets forth EPA policy for carrying out the provisions of Executive Order 11988 (Floodplain Management) and 11990 (Protection of Wetlands). Executive orders are
binding on the level (e.g., Federal, State) or government for which they are issued.
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1-29
1.2.3.3 Action-Specific Requirements
Action-specific ARARs are usually technology- or activity-based requirements
or limitations on actions taken with respect to hazardous wastes. These requirements
are triggered by the particular remedial activities that are selected to accomplish
a remedy. Since there are usually several alternative actions for any remedial site,
very different requirements can come into play. These action-specific requirements
do not in themselves determine the remedial alternative; rather, they indicate how a
selected alternative must be achieved.
Exhibit 1-3 provides a matrix of action-specific requirements established
under the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act. As
the statute that is directed toward the management of hazardous waste, RCRA provides
the largest number of pertinent action-specific requirements. However, detailed
corrective action requirements, which would provide action-specific requirements for
the types of actions most similar to CERCLA remedies, have not yet been promulgated.
RCRA corrective action requirements and other action-specific requirements in other
statutes will be added to subsequent drafts of this matrix as requirements are
promulgated or as the other statutes are analyzed.
The actions described in Exhibit 1-3 were identified as potential CERCLA
remedial alternatives from past Records of Decision (RODs). The terms used below to
describe remedial actions are explained more fully in later chapters. They include
the following:
Air Stripping
Capping
Closure with No Post-Closure Care (e.g., Clean Closure - removal or
decontamination of all residuals such that health-based standards are met)
Closure with Waste In Place (i.e., capping or disposal closure)
Closure of Land Treatment Units
Consolidation within Unit
Consolidation between Units
Container Storage
Construction of New Landfill On-Site
Construction of New Surface Impoundment On-Site
Dike Stabilization
Discharge of Treatment System Effluent
Direct Discharge to Ocean
Discharge to Publicly Owned Treatment Works (POTW)
Discharge of Dredge and Fill Material to Waters of the U.S. or Ocean Waters
Dredging
Excavation
Gas Collection
Ground-Water Diversion
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1-30
Incineration (on-site)
Land Treatment
Operation and Maintenance (O&M) (post-closure care)
Placement of Liquid Waste in Landfill
Placement of Waste in Land Disposal Unit
Slurry Wall
Surface Water Control
Tank Storage (on-site)
Treatment (in a unit)
Treatment (when waste will be land disposed)
Underground Injection of Wastes and Treated Ground Water
Waste Pile
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1-31
EXHIBIT 1-3
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Air Stripping
Capping
(See also Closure with Waste
in Place for additional
associated requirements)
[CAA requirements to be provided.]
Placement of a cap over waste (e.g., closing a
landfill, or closing a surface impoundment or
waste pile as a landfill, or similar action)
requires a cover designed and constructed to:
• • Provide long-term minimization of
migration of liquids through the capped
area;
• • Function with minimum maintenance;
Promote drainage and minimize erosion or
abrasion of the cover;
• • Accommodate settling and subsidence so
that the cover's integrity is maintained; and
•• Have a permeability less than or equal to the
permeability of any bottom liner system or
natural sub-soils present.
RCRA hazardous waste placed at site after the
effective date of the requirements, or placement of
hazardous waste into another unit will make
requirements applicable when the waste is being
covered with a cap for the purpose of leaving it
behind after the remedy is completed. Capping
without such placement will not make requirements
applicable, d/
40CFR264.288(a)
(Surface Impoundments)
40 CFR 264.258(b) (Waste
Piles)
40 CFR 264.310(a)
(Landfills)
a/ Currently only RCRA, CWA, and SDWA requirements are included. Additional action-specific requirements will be added as additional statutes are analyzed.
b/ Action alternatives from ROD keyword index, FY1986 Record of Decision Annual Report. January 1987, Hazardous Site Control Division, EPA.
c/ Requirements have been proposed but not promulgated for air stripping, hybrid closure, gas collection and miscellaneous unit treatment. When these regulations are promulgated, they
will be included in the matrix.
d/ Some action-specific requirements listed may be relevant and appropriate even if RCRA definitions of storage, disposal, or hazardous waste are not met, or if the waste at the site is
similar to but not identifiable as a RCRA hazardous waste. See Chapter 2 for information on relevant and appropriate RCRA requirements.
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1-32
EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Capping (continued)
Closure with No Post-Closure
Care (e.g. Clean Closure)
Eliminate free liquids, stabilize wastes
before capping (surface impoundments).
Restrict post-closure use of property as
necessary to prevent damage to the cover.
Prevent run-on and run-off from damaging
cover.
Protect and maintain surveyed benchmarks
used to locate waste cells (landfills, waste
piles).
General performance standard requires
elimination of need for further maintenance
and control; elimination of post-closure
escape of hazardous waste, hazardous
constituents, leachate, contaminated run-off,
or hazardous waste decomposition products.
Disposal or decontamination of equipment,
structure, and soils.
Removal or decontamination of all waste
residue, contaminated containment system
components (e.g., liners, dikes),
contaminated subsoils, and structures and
equipment contaminated with waste and
leachate, and management of them as
hazardous waste.
Meet health-based levels at unit.
Applicable to land-based unit containing hazardous
waste. -' Applicable to RCRA hazardous waste (listed or
characteristic) placed at site after the effective date of the
requirements, or placed into another unit. Not applicable
to material treated, stored, or disposed only before the
effective date of the requirements, or if treated in-situ, or
consolidated within area of contamination. Designed for
cleanup that will not require long-term management.
Designed for cleanup to health-based standards.
May apply to surface impoundments and container or
tank liners and hazardous waste residues, and to
contaminated soil, including soil from dredging or soil
disturbed in the course of drilling or excavation, and
returned to land.
40 CFR 264.228(a)
40 CFR264.117(c)
40 CFR 264.228(b)
40CFR264.310(b)
40CFR264.310(b)
40 CFR 264.111
40 CFR 264.111
40 CFR 264.178
40 CFR 264.197
40 CFR 264.288(o) (1) and
40 CFR 264.258
40 CFR 244.111
d/ Some action-specific requirements listed may be relevant and appropriate even if RCRA definitions of storage, disposal, or hazardous waste are not met, or if the waste at the site
is similar to but not identifiable as a RCRA hazardous waste. See Chapter 2 for information on relevant and appropriate RCRA requirements.
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1-33
EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Closure with Waste In Place
Eliminate free liquids by removal or
solidification.
Stabilization of remaining waste and
waste residues to support cover.
Applicable to land disposal of hazardous waste. -
Applicable to RCRA hazardous waste (listed or
characteristic) placed at site after the effective date of
the requirements, or placed into another unit. Not
applicable to material treated, stored, or disposed only
before the effective date of the requirements, or if
treated in-situ or consolidated within area of
contamination.
40CFR264.228(a)(2)
40CFR264.228(a)(2)
40CFR264.258(b)
Installation of final cover to provide
long-term minimization of infiltration
(see Capping).
30-year post-closure care and
groundwater monitoring, e/
40 CFR264.310
40 CFR264.310
Closure of Land Treatment
Units
Maximize degradation, transformation, or
immobilization of hazardous constituents
within the treatment zone, minimize run-
off of constituents, maintain run-on
control system and run-off management
system, control wind dispersal of
hazardous waste, maintain unsaturated
zone monitoring, establish vegetative
cover, and establish background soil
values to determine consistency with
permit values.
Closure of land treatment units.
40 CFR264.280
Consolidation within a Unit
None applicable. -'
Consolidation within a unit. -
e/ Regional administrator may revise length of post-closure care period (40 CFR 264.117).
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1-34
EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Consolidation between Units
Container Storage
With respect to the waste that is moved,
see requirements in the following
sections: Capping, Closure with Waste in
Place, Container Storage, Construction of
a New Landfill On-Site, Construction of a
New Surface Impoundment On-Site,
Incineration (On-Site), Land Treatment,
Operation and Maintenance, Tank
Storage, and Treatment.
Containers of RCRA hazardous waste
must be:
• • Maintained in good condition;
• • Compatible with hazardous waste to be
stored; and
•• Closed during storage (except to add or
remove waste).
Inspect container storage areas weekly for
deterioration.
Place containers on a sloped, crack-free
base, and protect from contact with
accumulated liquid. Provide containment
system with a capacity of 10 percent of
the volume of containers of free liquids.
Remove spilled or leaked waste in a
timely manner to prevent overflow of the
containment system.
Movement of hazardous waste and placement into
another unit.
Storage of RCRA hazardous waste (listed or
characteristic) not meeting small quantity generator
criteria held for a temporary period greater than 90
days before a treatment, disposal, or storage elsewhere
(40 CFR 264.10), in a container (i.e., any portable
device in which a material is stored, transported,
disposed of, or handled). A generator who
accumulates or stores hazardous waste on-site for 90
days or less in compliance with 40 CFR 262.34(a)(l-
4) is not subject to full RCRA storage requirements.
Small quantity generators are not subject to the 90 day
limit (40 CFR 262.34(c),(d), and (e)).
See Capping, Closure with Waste
in Place, Container Storage,
Construction of a New Landfill
On-Site, Construction of a New
Surface Impoundment On-Site,
Incineration (On-Site), Land
Treatment, Operation and
Maintenance, Tank Storage, and
Treatment in this exhibit.
40 CFR 264.171
40 CFR 264.172
40 CFR 264.173
40 CFR 264.174
40 CFR 264.175
f/ In many cases, there are no defined "units" at a CERCLA site. Instead, there are areas of contamination with differing concentration levels (including hot spots) of hazardous substances,
pollutants, or contaminants. When RCRA hazardous wastes are moved into or out of an area of contamination, RCRA disposal requirements are applicable to the waste being managed and
certain treatment, storage, or disposal requirements (such as for closure) are applicable to the area where the waste is received.
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1-35
EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Container Storage
(continued)
Keep containers of ignitable or reactive
waste at least 50 feet from the facility's
property line.
Keep incompatible materials separate.
Separate incompatible materials stored
near each other by a dike or other barrier.
At closure, remove all hazardous waste
and residue from the containment system,
and decontaminate or remove all
containers, liners.
Storage of banned wastes must be in
accordance with 40 CFR 268. When such
storage occurs beyond one year, the
owner/operator bears the burden or
proving that such storage is solely for the
purpose of accumulating sufficient
quantities to allow for proper recovery,
treatment, and disposal.
40 CFR 264.176
40 CFR 264.177
40 CFR 264.178
40 CFR 268.50
Construction of New Landfill On-
Site (see Closure with Waste in
Place).
Minimum Technology Requirements :
Install two liners or more, a top liner that
prevents waste migration into the liner,
and a bottom liner that prevents waste
migration through the liner.h/
Install leachate collection systems above
and between the liners.
RCRA hazardous waste (listed or characteristic)
currently being placed in a new, replacement, or
expanded landfill.
40 CFR 264.301
40 CFR 264.301
h/ Landfill units meeting the requirements of 40 CFR 264.310(f) are not subject to RCRA minimum technology requirements.
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1-36
EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Construction of New Landfill
(see Closure with Waste in Place).
(continued)
Construct run-on and run-off control
system capable of handling the peak
discharge of a 25-year storm.
Control wind dispersal of particulates.
Operation and maintenance.
Close each cell with a final cover after the
last waste has been received.
Ground-water Monitoring
Establish a detection monitoring program
(264.98). Establish a compliance
monitoring program (264.99) and
corrective action monitoring program
(264.100) when required by 40 CFR
264.91. All monitoring program must
meet RCRA general ground-water
monitoring requirements (264.97)
Creation of a new landfill unit to treat, store, or
dispose of RCRA hazardous wastes as part of a
response action.
40 CFR 264.301
40 CFR 264.301
40 CFR 264.303-304
40 CFR 264.310
40 CFR 264.91- 264.100
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EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Construction of a New Surface
Impoundment (see Closure with
Waste in Place and Closure with
no Post-Closure Care)
Minimum Technology Requirements:
Use two liners, a top liner that prevents
waste migration into the liner and a
bottom liner that prevents waste
migration through the liner (throughout
the post-closure period).
Design liners to prevent failure due to
pressure gradients, contact with the waste,
climatic conditions, and the stress of
installation and daily operations.
Provide a leachate collection system
between the two liners.
Use a leak detection system that will
detect leaks at the earliest possible time.
Ground-water Monitoring
Establish a detection monitoring program
(264.98). Establish a compliance
monitoring program (264.99) and
corrective action monitoring program
(264.100) when required by 40 CFR
264.91. All monitoring program must
meet RCRA general ground-water
monitoring requirements (264.97)
RCRA hazardous waste (listed or characteristic) currently
being placed in a new surface impoundment, or use of
replacement or lateral extension of existing landfills or
surface impoundments.
40 CFR 264.220
40 CFR 264.221
40 CFR 264.221
40 CFR 264.221
Creation of a new landfill unit to treat, store, or dispose of
RCRA hazardous wastes as part of a remedial action.
40 CFR 264.91-264.100
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1-38
EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Dike Stabilization
Design and operate facility to prevent
overtopping due to overfilling: wind and wave
action; rainfall; run-on; malfunction of level
controllers, alarms, and other equipment; and
human error.
Construct dikes with sufficient strength to prevent
massive failure.
Inspect liners and cover systems during and after
construction.
Inspect weekly for proper operation and integrity
of the containment devices.
Remove surface impoundment from operation if
the dike leaks or there is a sudden drop in liquid
level.
At closure, remove or decontaminate all waste
residues and contaminated materials. Otherwise,
free liquids must be removed, the remaining
wastes stabilized, and the facility closed in the
same manner as a landfill.
Manage ignitable or reactive wastes so that it is
protected from materials or conditions that may
cause it to ignite or react.
Existing surface impoundment containing
hazardous waste, or creation of a new surface
impoundment.
40 CFR 264.221
40 CFR 264.221
40 CFR 264.226
40 CFR 264.226
40 CFR 264.227
40 CFR 264.228
40 CFR 264.227
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1-39
EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Discharge of Treatment System
Effluent
Best Available Technology:
Use of best available technology (BAT)
economically achievable is required to
control toxic and nonconventional
pollutants. Use of best conventional
pollutant control technology (BCT) is
required to control conventional pollutants.
Technology-based limitations may be
determined on a case-by-case basis.
Point source discharge to waters of the United
States, i/j/
40 CFR 122.44(a)
Water Quality Standards:
Applicable Federally approved State water
quality standards must be complied with.
These standards may be in addition to or
more stringent than other Federal standards
under the CWA. k/
Discharge limitations must be established at
more stringent levels than technology-based
standards for toxic pollutants.
Best Management Practices:
Develop and implement a Best Management
Practices program to prevent the release of
toxic constituents to surface waters.
40 CFR 122.44 and State
regulations approved
under 40 CFR 131
40 CFR 122.44 (e)
40 CFR 125.100
i/ "Waters of the U.S." is defined broadly in 40 CFR 122.2 and includes essentially any water body and wetland.
j/ Section 121 of SARA exempts on-site CERCLA activities from obtaining permits. However, the substantive requirements of a law or regulation must be met. In particular, on-site
discharges to surface waters are exempt from procedural NPDES permit requirements. Off-site dischargers would be required to apply for and obtain an NPDES permit.
k/ Federal Water Quality Criteria may be relevant and appropriate depending on the designated or potential use of the water, the media affected, the purposes of the criteria, and current
information. (CERCLA §121(d)(2)(B)(i)) Federal Water Quality Criteria for the protection of aquatic life will be relevant and appropriate when environmental factors (e.g., protection of
aquatic organisms) are being considered. (50 FR 30784 [July 29, 1985]).
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1-40
EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Discharge of Treatment System
Effluent (continued)
The Best Management Practices program
must:
•• Establish specific procedures for the
control of toxic and hazardous pollutant
spills.
• • Include a prediction of direction, rate of
flow, and total quantity of toxic pollutants
where experience indicates a reasonable
potential for equipment failure.
•• Assure proper management of solid and
hazardous waste in accordance with
regulations promulgated under RCRA.
Monitoring Requirements:
Discharge must be monitored to assure
compliance. Discharge will monitor:
•• The mass of each pollutant
• • The volume of effluent
•• Frequency of discharge and other
measurements as appropriate
Approved test methods for waste constituent
to be monitored must be followed. Detailed
requirements for analytical procedures and
quality controls are provided.
Sample preservation procedures, container
materials, and maximum allowable holding
times are prescribed.
Discharge to waters of the U.S. j/
40CFR 125.104
40 CFR 122.41(i)
40CFR 136.1-136.4
]/ Section 121 of SARA exempts on-site CERCLA activities from obtaining permits. However, the substantive requirements of a law or regulation must be met. In particular,
on-site discharges to surface waters are exempt from procedural NPDES permit requirements. Off-site dischargers would be required to apply for and obtain an NPDES permit.
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EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Discharge of Treatment System
Effluent (continued)
Comply with additional substantive
conditions such as:
40 CFR 122.41(i)
Direct Discharge to Ocean
•• Duty to mitigate any adverse effects of any
discharge; and
•• Proper operation and maintenance of
treatment systems.
Discharges causing "unreasonable degradation
of the marine environment" are not permitted.
Discharge to the marine environment. I/
40 CFR 125.123(b)
A determination of whether a discharge will
cause reasonable degradation of the marine
environment must be made, based on
consideration of:
•• Quantity, composition, or persistence of
pollutants to be discharged;
•• Potential transport of pollutants by
biological, chemical, or physical
processes;
• • Composition and vulnerability of exposed
communities;
• • Importance of the receiving water to
spawning, migratory paths, and surrounding
biological community;
• • Existence of special aquatic sites;
•• Impact on human health and commercial
fishing;
40 CFR 125.122
I/ CWA §403 requires that an NPDES permit be issued for discharges into marine waters, including territorial seas, the contiguous zone, and the oceans. (40 CFR 122.2.) A permit is
not required if point of discharge is on-site.
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EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actionsb/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Direct Discharge to Ocean
(continued)
Discharge to Publicly Owned
Treatment Works (POTW) (off-
site activity, see footnote ml)
•• Applicable requirements of the Coastal
Zone Management Plan (see Vol. 3 of
this manual); and
• • Marine Water Quality Criteria developed
under CWA §304(a)(l).
Comply with the limiting permissible
concentrations (LPCs) at the mixing zone
boundary that are established in the permit.
Discharge of pollutants that pass-through
the POTW without treatment, interfere with
POTW operation, contaminate POTW
sludge, or endanger health/safety of POTW
workers, is prohibited.
Specific prohibitions preclude the
discharge of pollutants to POTWs that:
•• Create a fire or explosion hazard in the
POTW;
•• Will cause corrosive structural change to
POTW;
•• Obstruct flow resulting in interference;
•• Are discharged at a flow rate and/or
concentration that will result in
interference; and
• • Increase the temperature of waste-water
entering the treatment plant that would
result in interference, but in no case raise
the POTW influent temperature above
104-F(40'C).
Indirect discharge to a POTW.
40CFR 125.123(d)(l)
40CFR403.5
m/ Discharge to POTWs is considered an off-site activity (see p. 3-21 for discussion of requirements); therefore, requirements related to discharge to a POTW are not ARARs, but
are included in this exhibit for reference. Off-site actions must comply with all legally applicable requirements, both substantive and administrative. The concept of "relevant and appropriate"
is not available for off-site actions.
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EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Discharge to Publicly
Owned Treatment Works
(POTW) (continued)
• Discharge must comply with local POTW pretreatment
program, including POTW-specific pollutants, spill
prevention program requirements, and reporting and
monitoring requirements.
40CFR403.5 and local
POTW regulations
Discharge of Dredge and
Fill Material to Waters of
the U.S. or Ocean Waters
• RCRA permit-by-rule requirements (including
corrective action where the NPDES permit was issued
after November 8, 1984) must be complied with for
discharges of RCRA hazardous wastes to POTWs.
The four conditions that must be satisfied before dredge
and fill is an allowable alternative are:
•• There must be no practical alternative.
•• Discharge of dredged or fill material must not cause a
violation of State water quality standards, violate any
applicable toxic effluent standards, jeopardize an
endangered species, or injure a marine sanctuary.
•• No discharge shall be permitted that will cause or
contribute to significant degradation of the water.
• • Appropriate steps to minimize adverse effects must be
taken.
Determine long- and short-term effects on physical,
chemical, and biological components of the aquatic
ecosystem.
Transport of RCRA hazardous wastes to POTWs by 40 CFR 270.60
truck, rail, or dedicated pipe (i.e., pipe solely
dedicated for hazardous waste [as defined in 40 CFR
264] which discharges from within the boundaries of
the CERCLA site to within the boundaries of the
POTW).
Capping, dike stabilization, construction of beams 40 CFR 230
and levees, and disposal of contaminated soil, waste 33 CFR 320-330
material or dredged material are examples of
activities that may involve a discharge of dredged or
fill material.
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EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Dredging
Excavation
Gas Collection
Ground-Water Diversion
Incineration
Removal of all contaminated soil.
Dredging must comply with Section 10 of the Rivers
and Harbors Act and U.S. Army Corps of Engineers
regulations.
Movement of excavated materials to new location
and placement in or on land will trigger land disposal
restrictions for the excavated waste or closure
requirements for the unit in which the waste is being
placed.
Area from which materials are excavated may require
cleanup to levels established by closure requirements.
[CAA requirements to be provided.]
Excavation of soil for construction of slurry wall
may trigger closure or land disposal restrictions.
Analyze the waste feed.
Dispose of all hazardous waste and residues,
including ash, scrubber water, and scrubber sludge.
No further requirements apply to incinerators that
only burn wastes that are listed as hazardous solely
by virtue of combination with other wastes, and if
the waste analysis demonstrates that no Appendix VII
constituent is present that might reasonably be
expected to be present.
RCRA hazardous waste placed at site after the
effective date of the requirements, or placed into
another unit.
Dredging in navigable waters of the United States.
Materials containing RCRA hazardous wastes subject
to land disposal restrictions are placed in another
unit.
RCRA hazardous waste placed at site after the
effective date of the requirements.
Materials containing RCRA hazardous waste subject
to land disposal restrictions are placed into another
unit.
RCRA hazardous waste.
See Closure in this
Exhibit.
33U.S.C. 403
33 CFR 320-330
40 CFR 268 (Subpart D)
See Closure in this
Exhibit.
See Consolidation in this
Exhibit.
40 CFR 264.341
40 CFR 264.351
40 CFR 264.340
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EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Incineration (continued)
Performance standards for incinerators:
• • Achieve a destruction and removal efficiency of
99.99 percent for each principal organic hazardous
constituent in the waste feed and 99.9999 percent
for dioxins:
• • Reduce hydrogen chloride emissions to 1.8 kg/hr
or 1 percent of the BC1 in the stack gases before
entering any pollution control devices; and
• • Not release particulate in excess of 180 mg/dscm
corrected for amount of oxygen in stack gas.
Monitoring of various parameters during operation
of the incinerator is required.
These parameters include:
•• Combustion temperature;
• • Waste feed rate;
•• An indicator of combustion gas velocity; and
• • Carbon monoxide.
Control fugitive emissions either by:
•• Keeping combustion zone sealed or
•• Maintaining combustion-zone pressure lower than
atmospheric pressure
Utilize automatic cutoff system to stop waste feed
when operating conditions deviate.
RCRA hazardous waste.
40 CFR264.343
40 CFR264.342
40 CFR 264.343
40 CFR 264.343
40 CFR 264.345
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EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Incineration (continued)
Land Treatment
Special performance standard for incineration of
PCBs:
•• Achieve a destruction and removal efficiency of
99.9999 percent;
•• Either 2 second dwell time at 1200 degrees
O(±100) and 3 percent excess oxygen in stack
gas; or 1.5 second dwell time at 1600 degrees C.
and 2 percent excess oxygen in stack gas; and
•• For non-liquid PCBs, mass air emissions from the
incinerator shall be no greater than 0.001 g. KB
per kg of the PCBs entering the incinerator.
Prior to land treatment, the waste must be treated to
BDAT levels or meet a no migration standard.
Ensure that hazardous constituents are degraded,
transformed, or immobilized within the treatment
zone.
Maximum depth of treatment zone must be no more
than 1.5 meters (5 feet) from the initial soil surface
and more than 1 meter (3 feet) above the seasonal
high water table.
Demonstrate that hazardous constituents for each
waste can be completely degraded, transformed, or
immobilized in the treatment zone.
Minimize run-off of hazardous constituents.
Maintain run-on/run-off control and management
system.
Liquid and non-liquid PCBs at concentrations of 50
ppm or greater.
40 CFR761.70
RCRA hazardous waste being treated or placed into
another unit.
40 CFR264.271
40 CFR264.271
40 CFR264.271
40 CFR 264.273
40 CFR 264.273
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1-47
EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Land Treatment (continued)
Operation and Maintenance
(O&M)
Placement of Liquid Waste in
Landfill
Placement of Waste in Land
Disposal Unit
Special application conditions if food-chain crops
are grown in or on treatment zone.
Unsaturated zone monitoring.
Special requirements for ignitable or reactive
waste.
Special requirements for incompatible wastes.
Special testing and location requirements for
certain hazardous wastes.
30-year post-closure care to ensure that site is
maintained and monitored.
Liquids in Landfills Prohibition:
No bulk or non-containerized liquid hazardous
waste or hazardous waste containing free liquids
may be disposed of in landfills.
Containers holding free liquids may not be placed
in a landfill unless the liquid is mixed with an
absorbent or solidified.
Land Disposal Restrictions:
Attain land disposal "treatment standards" before
putting waste into landfill in order to comply with
land ban restrictions. A treatment standard can be
either: (1) a concentration level to be achieved
(performance-based) or (2) a specified technology
that must be used (technology-based). If the
standard is performance-based, any technology
can be used to achieve the standard. (See
Treatment when Waste will be Land Disposed.)
RCRA waste #s F020, F021, F022, F023, F026, F027
(dioxin-containing wastes).
Land disposal closure.
Placement of a bulk or non-containerized RCRA
hazardous waste in a landfill.
40 CFR 264.276
40 CFR 264.278
40 CFR 264.281
40 CFR 264.282
40 CFR 264.283
40 CFR 264.310
40 CFR 264.314
40 CFR 264.314
Placement of RCRA hazardous waste in a landfill,
surface impoundment, waste pile, injection well, land
treatment facility, salt dome formation, salt bed
formation, or underground mine or cave.
40 CFR 268 (Subpart D)
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EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Slurry Wall
Surface Water Control
Tank Storage (On-Site)
Excavation of soil for construction of
slurry wall may trigger land disposal
restrictions.
Prevent run-on and control and collect
run-off from a 24-hour 25-year storm
(waste piles, land treatment facilities,
landfills).
Prevent over-topping of surface
impoundment.
Tanks must have sufficient structural
strength to ensure that they do not
collapse, rupture, or fail.
Waste must not be incompatible with the
tank material unless the tank is protected
by a liner or by other jeans.
Tanks must be provided with secondary
containment and controls to prevent
overfilling, and sufficient freeboard
maintained in open tanks to prevent
overtopping by wave action or
precipitation.
Inspect the following: overfilling control,
control equipment, monitoring data, waste
level (for uncovered tanks), tank
condition, above-ground portions of tanks
(to assess their structural integrity), and the
area surrounding the tank (to identify signs
of leakage).
Repair any corrosion, crack, or leak.
Materials containing RCRA hazardous waste subject
to land disposal restrictions are placed in another
unit. (See Treatment section for LDR schedule. Also
see Consolidation, Excavation sections in this
Exhibit.)
RCRA hazardous waste treated, stored, or disposed
after the effective date of the requirements.
Storage of RCRA hazardous waste (listed or
characteristic) not meeting small quantity generator
criteria held for a temporary period greater than 90
days before treatment, disposal, or storage elsewhere
(40 CFR 264.10), in a tank(i.e., any portable device
in which a material is stored, transported, disposed
of, or handled). A generator who accumulates or
stores hazardous waste on-site for 90 days or less in
compliance with 40 CFR 262.34(a)(l-4) is not
subject to full RCRA storage requirements. Small
quantity generators are not subject to the 90 day limit
(40 CFR 262.34(c), (d), and (e)).
40 CFR 264.25l(c).(d)
40 CFR 264.273(c).(d)
40CFR264.301(c).(d)
40 CFR 264.221 (c)
40 CFR 264.190
40 CFR 264.191
40 CFR 264.193-194
40 CFR 264.195
40 CFR 264.196
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EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Tank Storage (On-Site)
(continued)
Treatment (in a unit)
At closure, remove all hazardous waste
and hazardous waste residues from tanks,
discharge control equipment, and
discharge confinement structures.
Store ignitable and reactive waste so as to
prevent the waste from igniting or
reacting. Ignitable or reactive wastes in
covered tanks must comply with buffer
some requirements in "Flammable and
Combustible Liquids Code." Tables 2-1
through 2-6 (National Fire Protection
Association, 1976 or 1981).
Storage Prohibitions:
Storage of banned waste must be in
accordance with 40 CFR 268. When such
storage occurs beyond one year, the
owner/operator bears the burden of
proving that such storage is solely for the
purpose of accumulating sufficient
quantities to allow for proper recovery,
treatment and disposal.
Design and operating standards for unit
in which hazardous waste is treated. (See
citations at right for design and operating
requirements for specific unit.)
Treatment of hazardous waste in a unit.
40 CFR 264.197
40 CFR 264.198
40 CFR 268.50
40 CFR 264.190-264.192
(Tanks)
40 CFR 264.221 (Surface
Impoundments)
40 CFR 264.251 (Waste Piles)
40 CFR 264.273 (Land Treatment
Unit)
40 CFR 264.343- .345
(Incinerators)
40 CFR 264.601 (Miscellaneous
Treatment Units)
40 CFR 265.373 (Thermal
Treatment Units)
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EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Treatment (when Waste will be
Land Disposed)
Treatment of waste subject to ban on land
disposal must attain levels achievable by best
demonstrated available treatment
technologies (BDAT) for each hazardous
constituent in each listed waste, if residual is
to be land disposed. If residual is to be
further treated, initial treatment and any
subsequent treatment that produces residual
to be treated need not be BDAT, if it does not
exceed value in CCWE (Constituent
Concentration in Waste Extract) Table, for
each applicable water. (See 51 FR 40642,
November 6, 1986.)
Disposal of contaminated soil and debris resulting
from CERCLA response actions or RCRA
corrective actions is not subject to land disposal
prohibitions and/or treatment standards for
solvents, dioxins, or California list wastes until
November 8, 1990 (and for certain first third
wastes until August 8, 1990).
All wastes listed as hazardous in 40 CFR Part 261
as of November 8, 1984, except for spent solvent
wastes and dioxin-containing wastes, have been
ranked with respect to volume and intrinsic
hazards, and are scheduled for land disposal
prohibition and/or treatment standard
determinations as follows:
Solvents and dioxins Nov. 8, 1986
California list wastes July 8, 1987
One-third of all ranked and Aug. 8, 1988
hazardous wastes
Underground injection of Aug. 8, 1988
solvents and dioxins and
California list wastes
CERCLA response action and Nov. 8, 1988
RCRA corrective action soil
and debris
Two-thirds of all ranked and July 8,1989
listed hazardous wastes
All remaining ranked and May 8, 1990
listed hazardous wastes
identified by characteris-
tic under RCRA section
3001
Any hazardous waste listed Within 6 mos.
or identified under RCRA of the date of
section 3001 after identification
November 8, 1984 or listing.
40 CFR 268.10
40 CFR 268.11
40 CFR 268.12
40 CFR 268.41
40 CFR 268 (Subpart D)
51 FR 40641
52 FR 25760
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EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Treatment (when Waste will be
Land Disposed) (continued)
Underground Injection of
Wastes and Treated Ground
Water
BDAT standards for spent solvent wastes
and dioxin-containing wastes are based on
one of four technologies or combinations:
for waste waters, (1) steam stripping, (2)
biological treatment, or (3) carbon
absorption [alone or in combination with
(1) or (2)]; and for all other wastes, (4)
incineration. Any technology may be used,
however, if it will achieve the
concentration levels specified.
UIC program prohibits:
• • Injection activities that allow movement
of contaminants into underground
sources of drinking water which may
result in violations of MCLs or adversely
affects health.
• • Construction of new Class IV wells, and
operation and maintenance of existing
wells.
Class IV wells are banned except for
reinjection of treated ground water into the
same formation from which it was
withdrawn, as part of a CERCLA cleanup
or RCRA corrective action.
40 CFR 268.30
RCRA Sections 3004(d)(3),
Approved UIC program is required in States listed
under SDWA section 1422. (All States have been
listed.) Class I wells and Class IV wells are the
relevant classifications for CERCLA sites. Class I
wells are used to inject hazardous waste, beneath
the lowermost formation containing, within one
quarter mile, an underground source of drinking
water (USDW). n/ Class IV wells are used to inject
hazardous or radioactive waste into or above a
formation which contains, within one quarter mile
of the well, an underground source of drinking
water.
42U.S.C. 6924 (d)(3),
40 CFR 144.12
40 CFR 144.13
40 CFR 144.13(c)
n/ An underground source of drinking water (USDW) is a non-exempted aquifer or its portion which: (1) supplies any public water system, or (2) which contains a sufficient quantity
of ground water to supply a public water system and currently supplies drinking water for human consumption or contains fewer than 10,000 mg/1 total dissolved solids. (40 CFR 144.3.)
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EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,dJ
Citation
Background Injection of
Wastes and Treated Ground
Water (continued)
The Director of the UIC program in a state
may lessen the stringency of 40 CFR
144.52 construction, operation, and
manifesting requirements for a well if
injection does not occur into, through, or
above a USDW or if the radius of
endangering influence (see 40 CFR
146.06(c)) is less than or equal to the
radius of the well.
• •Report non-compliance orally within 24
hours.
• •Prepare, maintain, and comply with
plugging and abandonment plan.
Monitor Class I wells by:
• •frequent analysis of injection fluid;
••continuous monitoring of injection
pressure, flow rate, and volume; and
••installation and monitoring of ground-
water monitoring wells.
Applicants for Class I permits must:
• •Identify all injection wells within the
area of review.
••Task action as necessary to ensure that
such well are properly sealed,
completed, or abandoned to prevent
contamination of USDW.
Criteria for determining whether an aquifer
may be determined to be an exempted
aquifer include current and future use,
yield, and water quality characteristics.
40 CFR 144.16
Class I wells.
Class I wells are used to inject hazardous waste, beneath
the lowermost formation containing, within one quarter
mile, an underground source of drinking water
(USDW).
40 CFR 144.28(b)
40 CFR 144.51(b)
40 CFR 144.28(g)(l)
40 CFR 144.55
40 CFR 146.4
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EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,dJ
Citation
Underground Injection of
Wastes and Treated Ground
Water (continued)
Case and cement all Class I wells to prevent
movement of fluids into USDW, taking
into consideration well depth, injection
pressure, hole size, composition of injected
waste, and other factors.
Conduct appropriate geologic drilling logs
and other tests during construction.
Injection pressure may not exceed a
maximum level designed to ensure that
injection does not initiate new fractures or
propagate existing ones and cause the
movement of fluids into a USDW.
Continuous monitoring of injection
pressure, flow rate, and volume, and
annual pressure, if required.
Demonstration of mechanical integrity is
required every 5 years.
Ground-water monitoring may also be
required
Comply with State underground injection
requirements.
Hazardous waste to be injected is subject to
land ban regulations. (See section 4.2.2.1
of this manual.) Treated ground water that
meets the definition of hazardous waste
and is to be injected also is subject to land
ban regulations.
(See above)
40CFR 144.28(e)(l)
40CFR 146.12(d)
40CFR 146.13
40 CFR 147
40 CFR 268.2
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EXHIBIT 1-3 (continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/
Actions b/
Requirements
Prerequisites for Applicability c/ ,d/
Citation
Waste Pile
Use a single liner and leachate collection
system.
Waste put into waste pile subject to land
ban regulations (see Appendix of this
manual).
RCRA Hazardous waste, non-containerized
accumulation of solid, nonflammable hazardous waste
that is used for treatment or storage.
40CFR264.251
40CFR268.2
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1.2.4 GENERAL PROCEDURE FOR IDENTIFICATION AND ANALYSIS OF ARARS
ARARs should be identified at several points in the remedy selection process.
They must be identified on a site-specific basis, and therefore as additional
information is developed about the site, including the specific chemicals at the
site, special features of the site location, and the actions that are being
considered as remedies, more ARARS will progressively be identified and the list of
"potential" ARARs further refined. The lead and support agency (Federal or State
Superfund program) are responsible for the identification of ARARs with assistance
from other EPA/State program offices and other Federal/State agencies a appropriate
(including information and technical assistance). Regions must work closely with
States, who are responsible for indentifying State ARARs in a timely manner, to
ensure that State ARARs are identified at the critical points in the remedial
planning process. Regions must also work closely with States operating Federally
authorized programs under RCRA, the Clean Water Act (CWA), the Clean Air Act, or
other statutes that are sources of potential ARARs.17
Many statutes and the regulations promulgated under them contain requirements
that may be applicable or relevant and appropriate. Exhibit 1-9 at the end of this
chapter lists the statutes under which potential ARARs may have been promulgated.
In order to provide guidance on ARARs identification, this manual describes in
detail the steps in the thought process involved in determining whether a
requirement is applicable or relevant and appropriate. However, as experience is
gained in identification, the determination may be streamlined to consideration of
key factors. For example, if the hazardous substance at the site is identical to a
RCRA listed hazardous waste, but its source is unknown, RCRA requirements will not
be applicable but may be relevant and appropriate if the action taken is regulated
by RCRA.
The decision framework for ARARs determination, as described in this
manual, has five steps:
(1) The first step in the process, using the procedures described in this
guidance in Exhibit 1-4 and accompanying text is to identify potential
ARARs. For chemical-specific requirements under RCRA, CWA, and SDWA,
location-specific requirements under several statutes, and
action-specific requirements under RCRA, CWA, and SDWA, potential
requirements have already been identified and are listed in Exhibits
1-1, 1-2, and 1-3, respectively. These exhibits will be expanded in
subsequent drafts of this manual to include the requirements of
additional environmental laws.
(2) Using the procedures described in the flowchart in Exhibit 1-5 and
accompanying text, analyze the potential ARARs to determine whether
Under the Clean Water Act, States may be authorized to implement the permit
requirements of the National Pollution Discharge Elimination System (NPDES); under
the Clean Air Act, national ambient air quality standards are implemented,
maintained, and enforced through State Implementation Plans (SIPs).
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they are actually applicable to the particular conditions at the site.
(3) If the requirements are not applicable, using the procedures outlined in
the flowchart in Exhibit 1-7 and discussed in section 1.2.4.3, analyze
them to determine whether they are relevant and appropriate to the
particular conditions at the site.
(4) In developing the site risk assessment, which is used to determine
protectiveness, criteria, guidances, advisories, and proposed standards
may be used in addition to ARARs. These to-be-considered criteria,
guidances, advisories and proposed standards are not promulgated
requirements (and are not potential ARARs), but are an important
component of the protectiveness determination required by the statutes.
The Superfund Public Health Evaluation Manual provides guidance on
conducting site-specific risk assessments and the use of TBCs.
(5) Determine whether circumstances are present that might justify a waiver
of any otherwise applicable or relevant and appropriate requirements.
Subsequent to the initiation of the remedial action new standards based on new
scientific information or awareness may be developed and these standards may differ
from the cleanup standards on which the remedy was based. These new ARARs or TBCs
should be considered as part of the review conducted at least every five years under
CERCLA §121(c) for sites where hazardous substances remain on-site. The review
requires EPA to assure that human health and the environment are being protected by
the remedial action. Therefore, the remedy should be examined in light of any new
standards that would be applicable or relevant and appropriate to the circumstances
at the site or pertinent new TBCs, in order to ensure that the remedy is still
protective. In certain situations, new standards or the information on which they
are based may indicate that the site presents a significant threat to health or
environment. If such information comes to light at times other than at the five-year
reviews, the necessity of acting to modify the remedy should be considered at such
times.
An overview of the general procedure for identifying ARARs at different points
in the remedial planning process is summarized in Exhibit 1-4. Identification of
ARARs should begin following the scoping and site characterization phase of the
Remedial Investigation, when sufficient information has been developed so that
initial Judgments can be made about the chemicals present at the site and any
special characteristics of the site location that must be taken into account. As
Exhibit 1-4 indicates, the first steps in the identification of ARARs, following the
determination of chemicals present and the determination of special location
characteristics, should be a review of the matrices in this manual for
chemical-specific and location-specific ARARs. Action-specific ARARs will first be
considered during the development of remedial alternatives. Each of these steps is
described in detail in the balance of this section and in sections 1.3 and 1.4.
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EXHIBIT 1-4
Procedure for Identifying ARARs
Remedial Investigation (RI)—
Scoping and Site Characterization
Consult Scoping and Site
Characterization Data
List All
Chemicals
Present
Go To Exhibit 1-1
[P»je 1-16]
Chemical-Specific
Matrix
For Potential
Requirements*
I
Determine Actual
Chemical - Specific
ARARs
(Go to General
Procedures For Deter-
mining Applicability
and Relevance and
Appropriateness)
[P«(t 1-62 * 66]
List All
Location
Characteristics
Go To Exhibit 1-2
[P«ge 1-27]
Location-Specific
Matrix
For Potential
Requirements
Determine Actual
Location - Specific
ARARs
(Go to General
Procedures For Deter-
mining Applicability
and Relevance and
Appropriateness)
[Page 1-62 & 66]
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EXHIBIT 1-4 (cont'd)
Procedure for Identifying ARARs
Feasibility Study (FS) Development of
Alternatives - Initial Screening Stage
Develop Alternatives and Conduct Initial
Screening.
Identify Probable Action - Specific ARARs
for Alternatives Passing Thru Initial Screen.
(Go To Exhibit 1-3
(PMt 1- 31)
Action-Specific Matrix)
List Remedial Actions and Likely
Action-Specific ARARs
Go To General Procedures For
Determining Applicability and
Relevance and Appropriateness
1-62 and 66]
Detailed Analysis of Alternatives:
List All Alternatives and All of Their
Identified ARARs (Action-Specific);
Document Alternatives and
Their ARARs in FS
Selection of Remedy:
Document Reason For Selecting
Remedial Alternative and How Its
ARARs Were Identified and Complied
With (or Waived) in the ROD.
Note that chemical-specific ARARs will generally be the same for all alternatives,
and need not be repeat to each alternative. A single list of chemical-specific ARARs
should be developed during the site characterization phase of the Remedial
Investigation and modified during the remedy selection process.
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1.2.4.1 Procedure for Identifying ARARs
Chemical-Specific ARARs
Those chemicals identified at the site should be compared to the chemicals
listed in Exhibit 1-1, which lists chemical-specific standards under several
statutes. (Until Exhibit 1-1 is completed with chemical-specific standards from all
environmental statutes, it will be necessary to supplement the matrix in Exhibit 1-1
with a review of standards in other statutes, obtained by consulting Exhibit 1-9.)
If a chemical-specific standard is found in Exhibit 1-1, note the statute and its
jurisdictional prerequisites under which the standard was established. This
information will be necessary for determining if the chemical-specific standard is
applicable or relevant and appropriate. (Although in most cases a standard found
under the "potential ARAR" section of the matrix will be found to be an ARAR for
site-specific chemicals and exposure pathways, Remedial Project Managers (RPMs)
should follow the procedure for determining whether these probable ARARs are
actually applicable or relevant and appropriate to a given site, as outlined in
Sections 1.2.4.2 and 1.2.4.3 of this manual.) If more than one standard is found for
a particular chemical, the most stringent should generally be identified as the
likely ARAR. Finally, the standards identified as probable ARARs should all be
analyzed according to the procedures outlined in the Superfund Public-Health
Evaluation Manual. When ARARs do not exist for a particular chemical or when the
existing ARARs are not protective of human health or the environment, advisories
found in the to-be-considered category should also be used.
Location-Specific ARARs
Similarly, following the completion of Phase I of the Remedial Investigation,
site characterization, any special characteristics of the site (e.g., presence of
wetlands, habitat of endangered species, or historically significant features)
should be compared to the list of location-specific requirements in Exhibit 1-2. If
a location-specific requirement is found in Exhibit 1-2, the statute and its
jurisdictional requirements should be noted, so that the additional analysis
described in sections 1.2.4.2 and 1.2.4.3 of this manual can be completed. In noting
the statutory and regulatory requirements, determine whether the statute is
prohibitory (e.g. prohibits new activity) or in retroactive (e.g. requires that
existing conditions be rectified).
Action-Specific ARARs
Action-specific requirements probably will not be identified for most sites
until the development of alternatives in the Feasibility Study. Additional
action-specific requirements should be identified and refined as appropriate during
remedial design, when specific information regarding size and operation of treatment
facilities will be available. Exhibit 1-4 indicates this difference by separating
the identification of action-specific ARARs from the identification of
chemical-specific and location-specific ARARs. Once possible action alternatives
have been developed and screened to
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a workable number, they should be broken down into operable units and the type of
actions that are covered by potentially applicable or relevant and appropriate
statutes should be reviewed (e.g., disposal into a POTW of non-volatile substances
probably will not involve Clean Air Act (CAA) considerations, therefore potential
CAA requirements need not be reviewed further for that specific action).
Following the initial identification, the possible action alternatives should
be compared to Exhibit 1-3 (Action-Specific Requirements) in this manual. Currently,
this matrix includes RCRA and CWA action-specific requirements.
1.2.4.2. General Procedure for Determining if a Requirement is Applicable
This manual describes the process for determining applicability. The procedure
is no different from that involved in determining the applicability of laws to any
activity, but is provided here to promote a consistent approach to identifying
applicable requirements. The basic criterion for an applicable requirement is that
it directly and fully addresses or regulates the hazardous substance, pollutant,
contaminant, action being taken, or other circumstances at a site. Applicability is
established by the terms of the laws and regulations promulgating the requirements
being analyzed. To determine whether a particular requirement would be legally
applicable, it is necessary to refer to the specific terms or jurisdictional
prerequisites of the statute or regulation. All pertinent jurisdictional
prerequisites must be met for the requirement to be applicable. These jurisdictional
prerequisites include:
Who, as specified by the statute or regulation, is subject to its
authority;18
" The types of substances or activities listed as falling under the
authority of the statute or regulation;
" The time period for which the statute or regulation is in effect; and
The types of activities the statute or regulation requires, limits, or
prohibits.
These statutory or regulatory provisions must then be compared to the pertinent
facts about the CERCLA site and the CERCLA response actions under consideration, an
outlined by Exhibit 1-5. To determine if a requirement is applicable, examine its
language and determine whether it would otherwise legally apply to the site or the
response action. This procedure may need to be undertaken for each potentially
applicable requirement and for each potential action alternative (identification of
action-specific ARARs will be
18Although the lead agency may be managing the CERCLA site, and for the
purposes of the ARARs analysis would be the operator, it is not an owner/operator
for the purposes of CERCLA Sections 107 or 101(20) .
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completed during the detailed analysis of alternatives), since different
requirements, even those within the same group of regulations, may have different
iurisdictional prerequisites. In addition, the analysis should be repeated for each
different operable unit, technology, or component of the remedial action.
Exhibit 1-5 provides an outline of the general procedure for determining
if a requirement is applicable. Based on the site scoping and characterization, or
for action-specific ARARs the initial screening phase of the Remedial
Investigation/Feasibility Study (and review during remedial design), the pertinent
facts concerning the site should be identified. Many of these facts, such as the
chemicals present, special characteristics of the location of the site, and the type
of action under consideration for the site, will already have been determined in
connection with the identification of potential ARARs. Other facts, such as the
approximate date when substances were placed at the site, may also be necessary to
determine if the requirement applies. Different categories of information will be
necessary to determine the jurisdictional prerequisites of different requirements,
and not all categories listed in Exhibit 1-5 will be pertinent in all cases. Exhibit
1-6 indicates where subsequent chapters of this manual discuss the jurisdictional
prerequisites of particular requirements.
In summary, once the pertinent facts have been determined, they should be
compared with the jurisdictional prerequisites of the requirement. These
jurisdictional prerequisites can be found in Exhibits 1-1, 1-2, and 1-3 and are
explained further in subsequent chapters of this manual. They also appear in the
text of the relevant statute or regulation. If the jurisdictional prerequisites are
met, the requirement is applicable. If not, the next step is to consider whether the
requirement is relevant and appropriate.
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Exhibit 1-5
General Procedure for Determining
If Requirement is Applicable
Identify Pertinent Facts Concerning
Situation at Site or Operable Unit:
• Type of Substances
• When Substances Placed at Location
• Type of Site or Special Location
• Persons Affected
• Identify Types of Response Action or
Technology Under Consideration for
Site or Operable Unit
• Other Characteristics
Review and List the Provisions
of Each Potential Applicable Requirement
• Substances Covered
• Time Period Covered
• Types of Facilities Covered
• Persons Covered
• Actions Covered
. • Other Prerequisites
Compare Pertinent Facts About the Chemicals Present, the Location of,
and the Types of Action/Technology under Consideration at the Site
to Prerequisites for Requirements
Are All
Pertinent
Provisions
for Requirements
Met?
Requirement
is Applicable
Go to Procedure
for Determining if
Requirement is
Relevant and
Appropriate
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EXHIBIT 1-6
ARAR JURISDICTIONAL PREREQUISITES
Chemical—Specific ARARs
RCRA MCLs
SDWA MCLs
CWA WQCs
List of Possible
ARARs (pages)
1-16
1-16
1-17 to 1-23
Jurisdictional
Prerequisites/Text
Discussion (pages)
2-4 thru 2-14
2-23 thru 2-27
4-3, 4-8
3-10
Location-Specific ARARs
RCRA
* National Historic
Preservation Act
* Endangered Species Act
Clean Water Act
* Wilderness Act
* Fish and Wildlife
Coordination Act
* Wild and Scenic Rivers Act
* Coastal Zone Management Act
40 CFR Part 6 Appendix A
List of Possible
ARARs (pages)
Fault Zone, 1-27
Flood Plain, 1-27
Salt Dome
Formation, 1-27
1-27
1-27
1-28
1-28
1-28
1-28
1-28
1-28
Jurisdictional
Prerecrui sites/Text
Discussion (pages)
1-25
1-25
1-25
1-25
1-25
1-26
1-26
1-26
1-26
1-26
1-26
These and other statutes will be addressed in a later addition of this manual.
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EXHIBIT 1-6 (continued)
ARAR JURISDICTIONAL PREREQUISITES
Action-Specific ARARs
RCRA Capping
Closure
Container Storage
New Landfill
New Surface Impoundment
Dike Stabilization
Excavation, Ground-Water
Diversion
Incineration
Land Treatment
Land Disposal
Slurry Wall
Tank Storage
Treatment
Waste Pile
CWA Discharge to Water of US
Direct Discharge
to Ocean
Discharge to POTW
Dredge/Fill
SDWA Underground Injection
Control
List of Possible ARARs
ARARs (pages)
1-31, 1-32
1-32, 1-33
1-34, 1-35
1-35, 1-36
1-37
1-38
1-44
1-44, 1-45, 1-46
1-46, 1-47
1-34, 1-47, 1-50, 1-51
1-48
1-48, 1-49
1-49, 1-50, 1-51
1-54
1-39, 1-40, 1-41
1-41, 1-42
1-42, 1-43
1-43, 1-44
1-51, 1-52, 1-53
Jurisdictional
Prerequisites/Text
Discussion (pages)
2-15
2-15, 2-19
2-12, 2-13
2-15, 2-18
2-15, 2-18
2-15
2-15, 2-21
2-14
2-14, 2-15, 2-18
2-15, 2-18
2-15, 2-21
2-12, 2-13
2-14
2-15, 2-18
3-2, 3-3, 3-4
3-2, 3-3, 3-4, 3-5
3-5, 3-6, 3-21, 3-22
3-2, 3-3, 3-6, 3-28,
3-29
4-9, 4-10, 4-11
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1.2.4.3 General Procedure for Determining if a Requirement is Relevant and
Appropriate
A particular requirement could be "relevant and appropriate" even if it is not
"applicable." The basic considerations are whether the requirement (1) regulates or
addresses problems or situations sufficiently similar to those encountered at the
CERCLA site (i.e., relevance), and (2) is appropriate to the circumstances of the
release or threatened release, such that its use is well suited to the particular
site. Determining whether a requirement is relevant and appropriate is site-specific
and must be based on best professional judgment. This judgment is based on a number
of factors, including the characteristics of the remedial action, the hazardous
substances present at the site, and the physical circumstances of the site and of
the release, as compared to the statutory or regulatory requirement. All
requirements found to be applicable or relevant and appropriate must be complied
with.
Exhibit 1-7 outlines the general procedure and factors to consider in
determining whether a requirement is relevant and appropriate. The factors listed in
the left-hand column-relate to the problem that the requirement is designed to
address or to the goal that the requirement is intended to attain; the factors in
the right-hand column relate to the problem present at the CERCLA site and the
objective of the remedial action. The relative importance of these factors will vary
from site to site depending on the kind of ARARs under consideration (chemical-,
action-, or location-specific), and on site-specific conditions.
Both sets of factors in Exhibit 1-7 should be defined narrowly. For example,
the goal of both RCRA corrective action requirements and the CERCLA cleanup might be
defined as protection of human health and the environment. However, in analyzing
whether the corrective action requirements are relevant and appropriate, such a
definition of goals would be too broad. Instead, the goal of the RCRA corrective
action requirement might be characterized as the cleanup of a plume of ground-water
contamination from a distinct source. This would be compared to the goal of the
CERCLA action, such as cleanup of area-wide ground-water contamination.
Determining whether a requirement is both relevant and appropriate is
essentially a two step process. First, the determination focuses on whether a
requirement is relevant based on a comparison between the action, location, or
chemicals, covered by the requirement and related conditions of the site, the
release, or the potential remedy. This step should be a screen which will determine
the relevance of the potentially relevant and appropriate requirement under
consideration. The second step is to determine whether the requirement is
appropriate by further refining the comparison, focusing on the
nature/characteristics of the substances, the characteristics of the site, the
circumstances of the release, and the proposed remedial action.
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Exhibit 1-7
General Procedure for Determining
if Requirement is Relevant and Appropriate
During the Identification Stage,
For Each Requirement Not Found to be
Applicable, Review Factors Below to
Determine if CERCLA Problem Situation
is Sufficiently Similar to the Problem
that the Requirement in Question is
Designed to Remedy or Address
Factors Relating to Origin and Objective
of the Requirement in Question
• Specific Goals and Objective of Requirement
• Purpose of Requirement in Program of Origin
• Media Regulated/Affected by Requirement
• Substances Covered by Requirement
• Entities Regulated/Affected
• Action or Activity Regulated by Requirement
• Variances, Waivers, or Exemptions of
Requirement
• Type of Physical Location Regulated or
• Type of Structure or Facility Regulated or
Affected
• Requirement's Consideration of Use or
Potential Use of Affected Resource
Factors Relating to Problem Present at CERCLA
Site or Operable Unit that Must be Addressed by
Remedial Action
• Specific Goals and Objectives of CERCLA
Remedial Action at Site
• Use of Requirement at Site Consistent with
Purpose
• Media Contaminated/Affected by Cleanup
• Substances Involved at Site
• Entities Affected
• Remedial Action Contemplated at the Site
and Duration of Activity
• Circumstances at Site-Do they Fit
Requirements for Variances
Waivers, or Exceptions
• Type of Physical Location Involved
• Type of Structure or Facility Involved
• Use or Potential Use of Resource
Involved
Refine the Comparison Considering: Nature/Character
of the Substances; Characteristics of the Site;
Circumstances of the Release; Proposed Response Action.
Use Best
Professional
Judgment: Based on Con-
sideration of Above Factors, Is
Requirement Both Relevant
tod Appropriate?
Yes
Try to Subdivide
Requirement into Smaller
Parts that may be
Sufficiently Similar
then Analyze and Compare
Requirement is Not
Relevant and Appropriate
Requirement is
Relevant and Appropriate
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A requirement may be relevant but not appropriate for the specific site. Only
those requirements that are determined to be both relevant and appropriate must be
complied with. A requirement may be found relevant because it closely matches the
site on some of the factors listed in Exhibit 1-7, but may not be appropriate
because the site circumstances differ significantly on other key factors. While some
requirements within a regulation will be relevant and appropriate, other
requirements in that same regulation may be relevant (in that they address in a
broad sense the same problem as is faced at the CERCLA site), but not appropriate
because the requirement is not well-suited to the circumstances at the CERCLA site,
or to the threat to human health and the environment posed by the circumstances of
the release.
In comparing the requirement and the site circumstances or the circumstances
of the release, some of the following factors from Exhibit 1-7 and related
considerations might be particularly important in determining whether a requirement
is appropriate:
the purpose of the requirement;
the physical characteristics (size/nature) of the site and
contamination;
the character and circumstances of the release at the site compared to
what the requirement was intended to address and requires;
the substances covered by the requirement (e.g., the chemical
characteristics, form or concentration of the contamination or release
for which the requirement was designed);
the duration of the activity;
the basis for a waiver or exemption;
In addition, one should consider:
whether another requirement is available that more fully matches the
circumstances at the site; and
where EPA has explicitly decided that a requirement is not appropriate
to a situation, that requirement will not be appropriate for such a
situation at a CERCLA site.
Portions of a requirement may be relevant and appropriate even if a
requirement in its entirety is not. For example, parts of the requirements for
design and operation of a waste pile found in 40 CFR §264.251, such as the
requirement to use a liner of sufficient strength and thickness to prevent failure
due to pressure gradients, might be considered relevant and appropriate, while that
portion of the design requirements calling for installation of a liner covering all
surrounding earth likely to be in contact
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with the waste might not be appropriate if such earth is already contaminated and
the eventual remedy is to remove all of that earth.
When the analysis results in a determination that a requirement is both
relevant and appropriate, such a requirement must be complied with to the same
degree as if it were applicable.
Included below are several examples of situations where requirements might be
relevant but not appropriate:
1. A requirement may be relevant to the particular site because it addresses
a similar type of facility or entity, but not appropriate because of differences in
the duration of the activity. For example, the RCRA requirements for secondary
containment of tanks and other storage units may not be appropriate for temporary,
short-term storage.
2. Many RCRA requirements are designed to apply to specific types of
discrete units. These requirements may be relevant because they address the same
wastes and activities, such as closure of hazardous wastes in a landfill, but may be
inappropriate because of the physical size of the contamination at the CERCLA site.
For example, although they may be appropriate for smaller areas, the requirements
for capping may not be appropriate in some circumstances for large dispersed areas
of low-level soil contamination such as may be found at many large municipal
facilities .
3. A requirement may also be found relevant but not appropriate when another
requirement is available that has been designed to apply to that specific situation,
reflecting an explicit decision about the requirements appropriate to that
situation. For example, the Agency has made a determination under RCRA that Subtitle
C is not an appropriate means of regulating on a national basis certain mining waste
from the extraction or beneficiation of ores and minerals (51 FR 24496, July 3,
1986). Therefore, since that explicit, formal determination has been made, Subtitle
C requirements will generally not be relevant and appropriate to these wastes from
extraction or beneficiation of ores and minerals.
4. RCRA regulations affecting disposal or landfill closure require the site
to be capped with a final cover designed and constructed to provide long-term
minimization of the migration of liquids through the capped area. However, such
requirements related to the need for an impermeable cover may not be appropriate in
some circumstances if the wastes are largely immobile, and there will be no direct
contact threat.
5. A location-specific requirement may prohibit prospectively the deposit of
certain substances in a floodplain. This prohibition may be appropriate with regard
to remedial options in considering whether to create new disposal units in the
floodplain. However, it is not likely to be appropriate to remove large existing
landfills from the floodplain.
6. MCLs (under RCRA and under SDWA) are relevant and appropriate to
remediation of ground water that may be used for drinking. However, MCLs are
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generally not appropriate where ground water is not potentially drinkable due to
widespread naturally occurring contamination or due to location in a large industrial
area with substantial contamination where there is no actual, planned, or potential
use of ground water for drinking.19 In addition, MCLs are generally not appropriate
for site-specific circumstances where a well would never be placed and ground water
would thus never be consumed (e.g., a twenty-foot strip of land between the toe of a
landfill and river, if there is no surface water contamination resulting from man-made
ground-water contamination at the site).
Not all of the specific factors listed in Exhibit 1-7 will need to be considered in
determining whether a requirement is relevant and appropriate. Only the pertinent
factors need be considered. For chemical-, location-, and action-specific
requirements, the following factors should generally be considered:
Chemical-Specific
Specific Goal and Objective of
Requirement
Specific Goals and Objective of
CERCLA Remedial Action at
Site
Purpose of Requirement in Program
of Origin
Substances Covered by Requirement
Media and Entities Regulated/
Affected/Protected by Requirement
Variances, Waivers or Exemptions of
Requirements
Use of Requirement at Site
Related to Purpose
Substances Involved at Site
Media and Entities Potentially/
Actually Contaminated/
Affected by Cleanup
Circumstances at Site - - Do they
Fit Requirements for
Variance, Waiver, or
Exemption or Otherwise
Contradict some Implicit
Assumption Underlying the
Requirement
Requirement's Consideration of Use or
Potential Use of Affected Resource
Use or Potential Use of Resource
Involved
19 ,
Ground water in such industrial area (where there is no actual, planned,
or potential use of ground water for drinking) would still be classified as Class
IIB aquifers, although MCLs may be determined to be relevant and appropriate.
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Location-Specific
Specific Goal and Objective of
Requirement
Specific Goals and Objective of
CERCLA Remedial Action at
Site
Purpose of Requirement in Program
of Origin
Use of Requirement at Site
Related to Purpose
Type of Physical Location Regulated or
Affected
Location Involved
Action or Activity Prohibited/Required
by Requirement
Activity
Remedial Action Contemplated at
Site and Duration of
Variances, Waivers or Exemptions
Circumstances at Site -- Do they
Fit Requirements for
Variance, Waiver, or
Exemption
Requirement's Consideration of Use or
Potential Use of Affected Resource
Use or Potential Use of Resource
Involved
Action-Specific
Specific Goal and Objective of
Requirement
Specific Goals and Objective of
CERCLA Remedial Action at
Site
Purpose of Requirement in Program
of Origin
Use of Requirement at Site
Related to Purpose
Substances Covered by Requirement
Media and Entities Regulated/
Affected/Protected by Requirement
Substances Involved at Site
Media and Entities Potentially/
Actually Contaminated/
Affected by Cleanup
Action or Activity Regulated by
Requirement
Remedial Action Contemplated at
Site and Duration of
Activity
Variances, Waivers or Exemptions
Circumstances at Site — Do they
Fit Requirements for
Variance, Waiver, or
Exemption
Type and Size of Facility, Unit, Release
(e.g. Size of Release) Regulated or
Affected
Type and Size of Facility Unit,
Release Involved
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Requirement's Consideration of Use or Use or Potential Use of Resource
Potential Use of Affected Resource Involved
1 . 3 CERCLA WAIVER CRITERIA FOR ARARS
CERCLA §121 provides that under certain circumstances an otherwise applicable or
relevant and appropriate requirement may be waived. These waivers apply only to
meeting ARARs with respect to remedial actions on-site; other statutory requirements,
such as that remedies be protective of human health and the environment, cannot be
waived. A waiver must be invoked for each ARAR that will not be attained or exceeded.
The waivers provided by CERCLA §121(d)(4), some circumstances under which each waiver
might be invoked, and criteria for invoking the waivers are discussed below.
1. Interim Measures
[T]he remedial action selected is only part of a total remedial action that will
attain such level or standard of control when completed.(CERCLA §121(d)(4)(A).)
This waiver may be applicable to interim measures that are expected to be
followed within a reasonable time by complete measures that will attain ARARs. The
interim measures waiver may apply to sites at which a final site remedy is divided
into several smaller actions.
For example, the selected remedy at a site may include excavation and treatment
of the source. However, the treatment method may require treatability testing or time
for set-up or construction. During this time, an interim measure involving
stabilization, such as a cap, of the source may be appropriate. In such a
circumstance, the interim measure waiver would allow the present stabilization actions
at the site to constitute the initial components of a phased remedial response. These
actions would not be required to attain landfill closure ARARs under RCRA because the
response would not be complete.
The factors that may be appropriate for invoking this waiver include:
" Potential for exacerbation of site problems. The interim measure should not
directly cause additional migration of contaminants, complicate the site
cleanup, or present an immediate threat to public health or the
environment; and
Non-interference with final remedy. The interim measure selected must not
interfere with, preclude, or delay the final remedy, consistent with EPA's
priorities for taking further action.
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2 . Greater Risk to Health and the Environment.
[C]ompliance with such requirement at the facility will result in greater risk to
human health and the environment than alternative options. (CERCLA
§121(d)(4)(B).)
This waiver may be invoked for an ARAR that can only be met by using remedial
action that, because it meets that ARAR, poses greater risks than a similar remedial
alternative that does not meet that ARAR. This waiver could be used to "salvage" a
remedial action option that would cause greater environmental damage or health risks
solely because that option had to meet all ARARs, especially where one ARAR causes the
problem. For example, attaining the ambient concentration level for PCBs spread
throughout river sediment might require widespread dredging of the sediments, causing
an unacceptable release of the pollutant to the water body and damaging or disrupting
the ecosystem. Waiving the ARAR for ambient PCB concentrations in the sediment would
eliminate the need to conduct such harmful dredging.
Meeting an ARAR could also pose greater risks to workers or residents. For
example, excavation of a particularly toxic, volatile, or explosive waste to meet an
ARAR could pose high short-term risks. If protective measures were not practicable,
then use of this waiver might be appropriate.
Specific factors that may be considered in invoking the waiver for preventing
greater risks include:
Magnitude of adverse impacts. The risk posed or the likelihood of present
or future risks posed by the remedy using the waiver should be
significantly less than that posed by the totally compliant remedy posing
the risk;
" Duration of adverse impacts. The more long lasting the risks from the
totally compliant remedy, the more this waiver becomes appropriate; and
Reversibility of adverse impacts. This waiver is especially appropriate if
the risks posed by meeting the ARAR could cause irreparable damage.
Remedies protective of human health and the environment but not meeting all ARARs
should be compared to the remedy meeting ARARs that causes the minimum adverse
impacts. The additional public health and environmental benefits of not meeting all
ARARs must be weighed against the adverse impacts caused by not doing so. Only the
ARARs that cause the greater risk are eligible to be waived.
3 . Technical Impracticability
[C]ompliance with such requirement is technically impracticable from an
engineering perspective. (CERCLA §121(d)(4)(C).)
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The term "impracticable" implies an unfavorable balance of engineering
feasibility and reliability. The term "engineering perspective" used in the statute
implies that cost, although a factor, is not generally the major factor in the
determination of technical impracticability. A remedial alternative that is feasible
might be deemed technically impracticable if it could only be accomplished at an
inordinate cost. For instance, attainment of an ARAR might be possible, but constant
maintenance problems might require such an exorbitant amount of money that the
alternative would not be considered reliable, and thus would be infeasible from an
engineering perspective.
Furthermore, the use of the term "impracticable" implies that remedies
that are not demonstrated but that are thought to be feasible cannot be
eliminated because of this waiver. Thus, this waiver may be used for cases
where: (1) neither existing nor innovative technologies can reliably attain
the ARAR in question, or (2) attainment of the ARAR in question would be
illogical or infeasible from an engineering perspective.
The technical impracticability waiver may be invoked when either of the following
specific criteria are met:
" Engineering feasibility. The current engineering methods necessary to
construct and maintain an alternative that will meet the ARAR cannot
reasonably be implemented.
Reliability. The potential for the alternative to continue to be protective
into the future is low, either because the continued reliability of
technical and institutional controls is doubtful, or because of inordinate
maintenance costs.
4. Equivalent Standard of Performance
[T]he remedial action selected will attain a standard of performance that is
equivalent to that required under the otherwise applicable standard, requirement,
criteria, or limitation, through use of another method or approach. (CERCLA
§121(d)(4)(D).)
This waiver may be used in situations where an ARAR stipulates use of a
particular design or operating standard, but equivalent or better remedial
results (e.g., contaminant levels or reliability) could be achieved using an
alternative design or method of operation. For instance, an alternative may
involve reduction of either the mobility or toxicity of a hazardous substance
through specific form of treatment. The waiver may be invoked where a substitute form
of treatment from that specified or required in the ARAR (e.g., fixation instead of
incineration) achieves comparable reductions in either mobility or toxicity.
The CERCLA Reauthorization Conference Committee's Statement of Managers makes the
following point with regard to this waiver:
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Subsection [121] (d)(4)(D) allows the selection of a remedial action that
does not comply with a particular Federal or State standard or requirement
of environmental law, where an alternative provides the same level of
control as that standard or requirement through an alternative means of
control. This allows flexibility in the choice of technology but does not
allow any lesser standard or any other basis (such as a risk-based
calculation) for determining the required level of control. However, an
alternative standard may be risk-based if the original standard was
risk-based.
The following specific factors may be considered in deciding whether to invoke
this waiver:
The time required to achieve beneficial results using the alternative
remedy is equal to or less than the original ARAR. An alternative that
achieved similar results in significantly less time should be considered as
advantageous;
" Degree of protection of health, welfare, and the environment (e.g.,
environmental concentration achieved) is equal to or greater than that
under the original ARAR;
Level of performance achieved compared to that specified in the ARAR (e.g.,
concentration of residuals); and
Reliability of the remedy. The potential for the alternative ARAR to
continue to be protective into the future in equal to or greater than that
afforded by the ARAR to be waived.
5. Inconsistent Application of State Requirements
[W]ith respect to a State standard, requirement, criteria, or limitation, the
State has not consistently applied (or demonstrated the intention to consistently
apply) the standard, requirement, criteria, or limitation in similar
circumstances at other remedial actions. (CERCLA §121(d)(4)(E).)
This waiver is intended to prevent unjustified or unreasonable restrictions from
being imposed on cleanups. The issues raised by this waiver are closely tied to those
involved in the definition of "promulgated."
This waiver may be used in two situations. First, State requirements may have
been developed and promulgated but never applied because of a lack of applicability in
past situations. Such requirements should not be applied in CERCLA actions where there
is evidence that the State does not intend to apply them. Second, State standards that
have been variably applied or inconsistently enforced may give reason to invoke the
inconsistent application waiver. A standard is presumed to have been consistently
applied unless there is evidence to the contrary.
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Consistency of application may be determined by:
Similarity of sites or response circumstances (nature of contaminants or
media affected, characteristics of waste and facility, degree of danger or
risk, other hazardous waste management programs, etc.);
Proportion of non-compliance cases (including enforcement actions);
" Reason for non-compliance;
" Intention to consistently apply future requirements as demonstrated by
policy statements, legislative history, site remedial planning documents,
or State responses to Federal-lead sites; newly promulgated requirements
shall be presumed to embody this intention unless there is contrary
evidence.
5. Fund Balancing
[I]n the case of a remedial action to be undertaken solely under section 104
using the Fund, selection of a remedial action that attains such level or
standard of control will not provide a balance between the need for protection
of public health and welfare and the environment at the facility under
consideration, and the availability of amounts from the Fund to respond to
other sites which present or may present a threat to public health or welfare
or the environment, taking into consideration the relative immediacy of such
threats. (CERCLA §121(d)(4)(F).)
The Fund-balancing waiver may be invoked when meeting an ARAR would entail
such cost in relation to the added degree of protection or reduction of risk
afforded by that standard that remedial action at other sites would be jeopardized.
(Even with this waiver, the remedy must still comply with the statutory requirement
to be protective of human health and the environment).
The following criteria may be considered when invoking the Fund-balancing
waiver for ARARs:
The cost of implementing a remedy that would attain the ARAR in question.
The availability of amounts in the Fund to respond to other sites (includes
consideration of the number of sites and expected cost of remediation) is
not adequate because attainment of the ARAR would reduce the availability
of Fund monies for other sites. Projections should show that significant
threats from other sites may be addressed under the current Fund if the
ARAR were not attained.
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1.4 OTHER CRITERIA OR GUIDELINES TO BE CONSIDERED (TBCs)
In addition to legally binding laws and regulations, many Federal and State
environmental and public health programs also develop criteria, advisories,
guidance, and proposed standards that are not legally binding, but that may provide
useful information or recommended procedures. These materials are not potential
ARARs but are evaluated along with ARARs, as part of the risk assessment conducted
for each CERCLA site, to set protective cleanup level targets. Chemical-specific TBC
values such as health advisories and reference doses will be used in the absence of
ARARs or where ARARs are not sufficiently protective to develop cleanup goals. In
addition, other TBC materials such as guidance or policy documents developed to
implement regulations may be considered and used as appropriate, where necessary to
ensure protectiveness. The TBC values and guidelines may be used as appropriate.
After the risk assessment has been conducted, if no ARARs address a particular
situation, or if existing ARARs do not ensure protectiveness, to-be-considered
advisories, criteria, or guidelines should be used to set cleanup targets. Note that
it may be necessary in the risk assessment to express the TBC values in different
units (e.g., daily intake) in order to apply then. For instance, TBC values
expressed as dosages may have to be converted to concentration levels before they
can be used.
Exhibit 1-10 at the end of this chapter lists other Federal criteria,
advisories, guidance, and standards that should be considered. EPA is not aware of
any comprehensive listing of State TBCs, which should nevertheless be evaluated for
use in a particular site cleanup. Exhibit 1-8 outlines a procedure for determining
when such material should be used. The basic criterion in whether use of the
material to be considered is necessary to protect public health or the environment
at a CERCLA site. For example, although Health Effects Advisories (HEAs) are not
legally binding standards, and may not be fully current, they may provide the best
available standard for a particular chemical for which no binding standard exists.
In that case, the HEA should be evaluated using the procedures in the Superfund
Public Health Evaluation Manual, and if the standard is necessary to achieve a
protective remedy it should be used.
TBCs should only be used in setting protective cleanup levels after
ascertaining that they have not been superceded. For specific TBC values, and
related explanatory material and EPA contacts, consult the EPA Integrated Risk
Information System (IRIS). IRIS is a computer-based catalogue of EPA risk assessment
and risk management information for chemical risk assessment and risk management
information for chemical substances, accessible through the Agency's electronic mail
system.21
20 See the discussion of risk assessment in Section 1.2.3.1 above and The
Superfund Public Evaluation Manual (October 1986; 9285.4-1)
21 Training is available. For general questions, contact the IRIS coordinator
at FTS 382-7315.
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Exhibit 1-8
General Procedure for Determining
if Guidance or Criteria Should be Considered
Conduct ARAR Identification
and Identify Guidance, Criteria, or
Advisory from To-Be-Considered
List (TBC).
(For TBCs See Exhibit 1-10).
Analyze ARARs and TBCs as
Pan of Risk Assessment (See
Superfund Public Health
Evaluation Manual).
Use Superfund
Public Health Evaluation
Manual to Analyze Use Of
Non-Enforceable Chemical-
Specific Standards
Use CERCLA
Guidance on
Feasibility Studies
to Analyze Use of
Other Standards
I
If Guidance, Criteria, or
Advisory are Necessary to
Achieve A Protective
Remedy, Should
Be Used
I
Document And
Justify Use Of
TBCs
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1.5 DOCUMENTATION
Guidance provided in this manual on ARAR and TBC documentation updates and
supersedes other sources such as the Guidance on Feasibility Studies Under CERCLA
(April 1985), materials distributed at ROD workshops, and the Preamble to the NCP
(November 1985). Detailed documentation of ARARs, as described below, should be
provided in an Appendix to the RI/FS Report, and a summary included in the ROD. When
revised, the RI/FS guidance and the ROD guidance currently being developed will
discuss specific guidelines, and this manual will be revised where necessary.
The following documentation should always be supplied in an Appendix to the
RI/FS Report in the discussion of the analysis of Federal and State ARARs:
Documentation should provide a rationale for the decision that a
chemical-, location-, or action-specific requirement is applicable,
or is relevant and appropriate for that specific site, for each
remedial action alternative that passed through the screening and
into detailed analysis. The rationale should include an
explanation of the analysis loading to the determination of
applicability, or relevance and appropriateness. If more than one
requirement is determined to be ARAR in connection with the same
substance, action, or site-specific condition, and if the standards
are inconsistent or in conflict, the general rule is to comply with
the most stringent requirement.
When an alternative is chosen that does not attain an ARAR, the
basis for waiving the requirement must be fully documented and
explained.
" Documentation may also be appropriate in some cases when a potential
ARAR is initially identified but ultimately is found not to be ARAR. For
example, information may become available late in the RI/FS phase of the
project that changes the status of a requirement from ARAR to not ARAR.
When a requirement is expected to be ARAR, and the determination is
difficult, the factors indicating why the standard was not ARAR should
be stated and explained in sufficient detail so that the basis for the
decision can be understood by a later reviewer.
22 Note that chemical-specific ARARs will generally be the same for all
alternatives. A single list of chemical-specific ARARs should be developed and
modified during the remedy selection process. In most cases, documentation of the
identification of chemical-specific ARARs need not be repeated for each
alternative.
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The following documentation should be provided in an Appendix to the RI/FS
Report for the analysis of other Federal and State criteria, advisories.
guidance, and proposed standards to be considered (TBCs).
If no potential ARARs are identified covering a particular
situation, or if potential ARARs are determined not to be
protective, any pertinent criteria, advisories, guidance, or
proposed standards should be used, and the reasons for their use
should be fully documented.
" Documentation need not be provided for negative determinations
related to TBCs. That is, reasons for determining that to-be-
considered standards are not pertinent do not need to be
documented.
In addition to the circumstances specified above, documentation should be
provided for both ARARs and to-be-considered standards in every case in which, in
the decision-maker's judgment, the documentation would strengthen the RI/FS
Report and the ROD.
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EXHIBIT 1-9
UNIVERSE OF APPLICABLE OR RELEVANT AND
APPROPRIATE REQUIREMENTS a/
1. Office of Solid Waste
Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901) b/
a. 40 CFR Part 264, applicable for permitted facilities c/, and 40 CFR Part 265, for interim status facilities.
- - Ground-water Protection (40 CFR 264.90-264.101)
- - Ground-water Monitoring, Subpart F (40 CFR 264.98-264.100) d/
- - Closure and Post-Closure (40 CFR 264.110-264.120, 265.110-265.120)
- - Containers (40 CFR 264.170-264.178, 265.190-265.177)
- - Tanks (40 CFR 264.190-264.200, 265.190-265.199)
- - Surface Impoundments (40 CFR 264.220-264.249, 265.220-265.230)
- - Waste Piles (40 CFR 264.250-264.269, 265.250-265.258)
- - Land Treatment (40 CFR 264.270-264.99, 265.270-265.282)
- - Incinerators (40 CFR 264.340-264.999, 265.340-265-369)
- - Land Disposal Restrictions (40 CFR 268.1-268.50)
- - Dioxin-containing Wastes (50 FR 1978). Includes the final rule for the listing of dioxin-containing waste.
b. Statutory requirements, including:
- - Liquids in Landfills (RCRA §3004(c))
- - Minimum Technology Requirements (RCRA §3004(o), 3005(j))
- - Dust Suppression (RCRA §3004(e))
- - Hazardous Waste Used as Fuel (RCRA §3004(q))
c. Open Dump Criteria - pursuant to RCRA Subtitle D: criteria for classification of solid waste disposal facilities (40 CFR Part 257).
Note: For nonhazardous wastes.
2. Office of Water
The Safe Drinking Water Act (42 U.S.C. 300(f))
a. Maximum Contaminant Levels (chemicals, turbidity, and microbiological contamination) (for drinking water or human consumption (40 CFR 141.11-141.16).
b. Maximum Contaminant Level Goals (40 CFR 141.50-141.51, 50 FR 46936)
c. Underground Injection Control Regulations (40 CFR Parts 144, 145, 146, 147).
Clean Water Act (33 U.S.C. 1251)
Requirements established pursuant to sections 301 (effluent limitations), 302 (effluent limitations), 303 (water quality standards, including State water quality standards), 304
(Federal water quality criteria), 306 (national performance standards), 307 (toxic and pretreatment standards, including Federal pretreatment standards for discharge into
publicly owned treatment works, and numeric standards for toxics), 402 (national pollutant discharge elimination system), 403 (ocean discharge criteria), and 404 (dredged
or fill material) of the Clean Water Act, (33 CFR Parts 320-330, 40 CFR Parts 122, 123, 125, 131, 230,231, 233, 400-469). Available ambient Water Quality
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EXHIBIT 1-9
(Continued)
UNIVERSE OF APPLICABLE OR RELEVANT AND
APPROPRIATE REQUIREMENTS
Criteria Documents are listed at 45 FR 79318, November 28, 1980; 49 FR 5831, February 15, 1984;
50 FR 30784, July 29, 1985; 51 FR 22978, June 28, 1986; 51 FR 43665, December 3, 1986; 51 FR 8012, March 7, 1986;
52 FR 6213, March 2, 1987.
Marine Protection, Research, and Sanctuaries Act (33 U.S.C. 1401)
Ocean Dumping Requirements (40 CFR Parts 220-223, Subchapter H)
Discharge of dredged materials into ocean, (33 CFR Parts 320-329, 40 CFR Parts 122, 123, 125, 131, 230, 231, 233, 400-469). Incineration at sea requirements (40 CFR
Parts 220-225, 227, 228). See also 40 CFR 125.120-125.124.
Section 10 of the Rivers and Harbors Act prohibits unauthorized obstruction or alteration of navigable waters
(33 CFR Parts 320-329, 40 CFR Parts 122, 123, 125, 131, 230, 231, 233, 400-469).
" EPA's Statement of Procedures on Floodplains Management and Wetlands Protection. (40 CFR Part 6 Appendix A) f/
3. Office of Pesticides and Toxic Substances
Toxic Substances Control Act (15 U.S.C. 2601)
a. PCB Requirements Generally: 40 CFR Part 761; Manufacturing Processing, Distribution in Commerce, and Use of PCBs, and PCB items (40 CFR 761.20-761.30);
Marking of PCBs and PCB items (40 CFR 761.40-761.45); Storage and Disposal (40 CFR 761.60-761.79); Records and Reports (40 CFR 761.180-761.185). See
also 40 CFR 129.105, 750.
b. Disposal of Wate Material Containing TCDD (40 CFR 775.180-775.197).
4. Office of Air and Remediation
The Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C. 2022)
Uranium mill tailing rules - Health and Environmental Protection Standards for Uranium and Thorium Mill
Tailings, (40 CFR Part 192).
" Clean Air Act (42 U.S.C. 7401)
a. National Ambient Air Quality Standards (40 CFR Part 50)
b. Standards for Protection Against Radiation - high and low level radioactive waster rule, (10 CFR Part 20).
c. National Emissions Standards for Hazardous Air Pollutants for Asbestos and Wet Dust particulates, (40 CFR 61.140-61.156), for Beryllium (40 CFR 61.30-61.34), for
Vinyl Chloride (40 CFR 61.60-61.71), for Benzene (40 CFR 61.110-61.112), and for other hazardous substances (40 CFR Part 61 generally). See also effluent
limitations and pretreatment standards dor Wet Dust Collection (40 CFR 427.110-427.116) and 40 CFR Part 763.
d. National Emissions Radionuclides (40 CFR Part 61, 10 CFR 20.101-20.108)
e. State implementation plans for national primary and secondary ambient air quality control standards (42 U.S.C. 7410)
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EXHIBIT 1-9
(Continued)
UNIVERSE OF APPLICABLE OR RELEVANT AND
APPROPRIATE REQUIREMENTS
f. Standards of performance for new stationary sources, including new incinerators (42 U.S.C. 7411), (40 CFR Part 60).
5. Other Federal Requirements
" OSHA requirements r workers engaged in response or other hazardous waste operations (29 CFR 1910.120).
Occupational Safety and Health Act of 1970 (29 U.S.C. 651).
(a) Occupational Safety and Health Standards (General Industry Standards) (29 CFR Part 1910).
(b) The Safety and Health Standards for Federal Service Contracts (29 CFR Part 1926).
(c) The Shipyard and Longshore Standards (29 CFR parts 1915, 1918).
(d) The Health and Safety Standards for Employees engaged in Hazardous Waste Operations. (50 FR45654)
National Historic Preservation Act, 16 U.S.C. 470. Protection of Archaeological Resources: Uniform Regulations - Department of Defense (32 CFR Part 229, 229.4),
Department of the Interior (43 CFR Part 7, 7.4).
" Federal Land Policy and Management Act, 13 U.S.C. 1700. (Establishes requirements concerning utilization of public lands, particularly rights of way regulation (13 U.S.C.
1761), land use planning and land acquisition and disposition (13 U.S.C. 1711), and appropriation of waters on public lands.
Department of Transportation Rules for the Transportation of Hazardous Materials, 49 CFR Parts 107, 171.1-172.558.
Endangered Species Act of 1973, 16 U.S.C. 1531. (Generally, 50 CFR Parts 81, 225, 402).
" Wild and Scenic Rivers Act, 16 U.S.C. 1271.
Fish and Wildlife Coordination Act, 16 U.S.C. 661 note.
Fish and Wildlife Improvement Act of 1978, and Fish and Wildlife Act of 1956, 16 U.S.C. 742a note. el
Fish and Wildlife Conservation Act of 1980, 16 U.S.C. 2901. (Generally, 50 CFR Part 83). e/
Coastal Zone Management Act of 1972, 16 U.S.C. 1451. (Generally, 15 CFR Part 930 and 15 CFR 923,45 for Air and Water Pollution Control Requirements).
Farmland Protection Policy Act, 7 U.S.C. 4201. (Generally, 7 CFR Part 658). e/
Rivers and Harbors Act (33 U.S.C. 403)
a/ This is the list of potentially applicable or relevant and appropriate requirements found in the October 2, 1985, Compliance Policy with additions. As additional
requirements are promulgated, they must also be considered potentially applicable or relevant and appropriate and added to this list.
b/ In authorized States, Federal regulations promulgated under RCRA are not applicable as a State requirement until the State adopts those regulations through its own
legislative process, but probably would be relevant and appropriate as a Federal requirement. Federal
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EXHIBIT 1-9
(Continued)
UNIVERSE OF APPLICABLE OR RELEVANT AND
APPROPRIATE REQUIREMENTS
regulations promulgated pursuant to the Hazardous and Solid Waste Amendments of 1984, however, are effective immediately in all 50 States, and
are potentially applicable as Federal Requirements.
c/ 40 CFR Part 264 regulations apply to permitted facilities and may be relevant and appropriate to other facilities.
d/ Only the Subpart F ground-water monitoring requirements under 40 CFR 264 are ARAR. The Subpart F ground-water monitoring requirements under
40 CFR 265 are not ARAR.
e/ May not be applicable or relevant for many sites.
f/ 40 CFR Part 6 Subpart A sets forth EPA policy for carrying out the provisions of Executive Orders 11988 (Floodplains Management) and 11990
(Protection of Wetlands).
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EXHIBIT 1-10
OTHER FEDERAL AND STATE CRITERIA, ADVISORIES, AND GUIDANCE TO BE CONSIDERED a/
1. Federal Criteria. Advisories, and Procedures
Health Effects Assessments (HEAs) and Proposed HEAs, ("Health Effects Assessment for (Specific Chemicals), "ECAO, USEPA, 1985).
References Doses (RFDs), ("Verified Reference Doses of USEPA," ECAO-CIN-475, January 1986). See also Drinking Water Equivalent Levels (DWELs), a set of
medium-specific drinking water levels derived from RFDs. (See USEPA Health Advisories, Office of Drinking Water, March 31, 1987)
" Carcinogen Potency Factors (CPFs) (e.g., Q1 Stars, Carcinogen Assessment Group [CAG] Values), (Table 11, "Health Assessment Document for Tatrachloroethylene
(Porchloroethylene)," USEPA, OHEA/6008-82/005F, July 1985).
" Pesticide registrations and registration date.
Pesticide and Food additive tolerances and action levels. Note: Some tolerances and action levels my pertain and should therefore be considered in certain situations.
" Waste load allocation procedures, EPA Office of Water (40 CFR Part 125, 130).
Federal Sole Source Aquifer requirements See 52 FR 6873, March 5, 1987).
Public health criteria on which the decision to list pollutants as hazardous under Section 112 of the Clean Air Act was based.
Guidelines for Ground-Water Classification Under the EPA Ground-Water Protection Strategy.
" TSCA chemical advisories (4 issued to date: Nitrosamines (September, 1984), P/Tert/Buti/benzoic acid (March,1985) Burning used oil & space heaters (November,
1985, 4-4 Methylinebis [2/Chloroaline] (December, 1986), 2 Nitropropane (December 1986).
" Advisories Issued by FWS and NWFS under the Fish and Wildlife Coordination Act.
TSCA Compliance Program Policy, ("TSCA Enforcement Guidance Manuel - Policy Compendium," USEPA, OECH, OPTS, March, 1985).
" OSHA health and safety standards that way be used to protect public health (non-workplace).
a/ This list updates this list of other Federal criteria, advisories, and guidance to be considered in the October 5, 1985, Compliance Policy. As additional
or revised criteria, advisories, or guidance are issued, they should be added to this list and also considered.
b/ Proposed amendments to the federal Insecticide, Fungicide and Rodenticide Act Introduced the concept of Ground Water Residue Guidance Levels (GRGLs).
These amendments have not been passed by Congress and a List of GRGLs has not yet boan promulgated.
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EXHIBIT 1-10
(Continued)
OTHER FEDERAL AND STATE CRITERIA, ADVISORIES, AND GUIDANCE TO BE CONSIDERED
Health Advisories, EPA Office of Water
" EPA Water Quality Advisories, EPA Office of Water, Criteria and Standards Division.
2. USEPA RCRA Guidance Documents
" Interim Final Alternate Concentration Limit Guidance Part I: ACL Policy and Information Requirements (July, 1987)
a. EPA's RCRA Design Guidelines
(1) Surface Impoundments, Liners Systems, Final Cover and Feedback Control.
(2) Waste Pile Design - Liner Systems.
(3) Land Treatment Units.
(4) Landfill Design - Liner Systems and Final Cover.
b. Permitting Guidance Manuals c/
(1) Permit Writer's Guidance Manual for Hazardous Waste Land Treatment, Storage and Disposal Facilities, Phase I; (February 15, 1985) EPA/530-
SW-85-024.
(2) Permit Writer's Guidance Manual for Subpart F. (October, 1983)
(3) Permit Applicant's Guidance Manual for the General Facility Standards. (October 15, 1983) EPA # OSW 00-00-968
(4) Waste Analysis Plan Guidance Manual. (October 15, 1984) EPA/530-SW-84-012
(5) Permit Writer's Guidance Manual for Hazardous Waste Tanks. (July 1983)
(6) Model Permit Application for Existing Incinerators. (1985)
(7) Guidance Manual for Evaluating Permit Applications for the Operation of Hazardous Waste Incinerator Units. (July 1983)
(8) A Guide for Preparing RCRA Permit Applications for Existing Storage Facilities. (January 15, 1982)
(9) Guidance Manual on closure and post-closure Interim Status Standards.
c/ RCRA permit manuals are listed to indicate the kind of information used, manner of interpreting information, and determining in setting standards; they are not
used to indicate procedures.
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EXHIBIT 1-10
(Continued)
OTHER FEDERAL AND STATE CRITERIA. ADVISORIES. AND GUIDANCE TO BE CONSIDERED
c. Technical Resource Documents (TRDs)
(1) Evaluating Cover Systems for Solid and Hazardous Waste. (September 1982) EPS OSW-00-00-867
(2) Hydrologic Simulation of Solid Waste Disposal Sites. (November 1982) EPA OSW-00-00-868
(3) Landfill and Surface Impoundment Performance Evaluation. (April 1983) EPA OSW-00-00-869
(4) Draft Minimal Technology Guidelines on Double Liner System for Landfills and Surface Impoundments. (May 1985) PB 87151072-AS
(5) Draft Minimal Technology Guidelines on Single Liner System for Landfills and Surface Impoundments. (May 1985) PB 871173159
(6) Management of Hazardous Waste Leachate. (September 1982) OSW-00-00-871
(7) Guide to the Disposal of Chemically Stabilized and Solidified Waste. (1982) EPA/530-SW-872
(8) Closure of Hazardous Waste Surface Impoundments. (September 1982) OSW-00-00-873
(9) Hazardous Waste Land Treatment. (April 1983) OSW-00-00-874
(10) Soil Properties, Classification, and Hydraulic Conductivity Testing. (March 1984) OSW-00-00-925, OSWER directive 9480.00-7D
d. Test Methods for Evaluating Solid Waste
(1) Solid Waste Leaching Procedure Manual. (1984) OSW-00-00-924
(2) Methods for the Prediction of Leachate Plume Migration and Mixing
(3) Hydrologic Evaluation of Landfill Performance (HELP) Mode, Volumes I and II (1984), EPA/530-SW-84-009 & EPA/530-SW-84-010
(4) Hydrologic Simulation on Solid Waste Disposal Sites. (November 1982) EPA OSW-00-00-868
(5) Procedures for Modeling Flow through Clay Liners to Determine Required Liner Thickness. (1984) EPA/530-SW-84-001 & OSWER directive
9480.00-9D
(6) Test Methods for Evaluating Solid Wastes, third edition. (November 1986) SW-846
(7) A Method for Determining the Compatibility of Hazardous Wastes. EPA/600-02-80-076
(8) Guidance Manual on Hazardous Waste Compatibility
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EXHIBIT 1-10
(Continued)
OTHER FEDERAL AND STATE CRITERIA. ADVISORIES. AND GUIDANCE TO BE CONSIDERED
3. USEPA Office of Water Guidance Documents
a. Pretreatment Guidance Documents:
(1) 304(g) Guidance Revised Pretreatment Guidelines (3 Volumes)
(2) Guidance for POTW Pretreatment Pogram Manual (October, 1983)
(3) Developing Requirements for Direct and Indirect Discharges of CERCLA Wastewater, Draft. (1987)
(4) Domestic Sewage Exemption Study
(5) Guidance for Implementing RCRA Permit by Rule Requirements at POTWs
(6) Application of Correction Action Requirements at Publicly Owned Treatment Works
(7) Draft Guidance Manual on the Development and Implementation of Local Discharge Limitations Under the Pretreatment Program (1987)
b. Water Quality Guidance Documents
(1) Ecological Evaluation of Proposed Discharge of Dredged Material into Ocean Waters (1997)
(2) Technical Support Manual: Waterbody Surveys and Assessments for Conducting Use Attainability Analyses (1983)
(3) Water-Related Environmental Fate of 129 Priority Pollutants (1979)
(4) Water Quality Standards Handbook (December, 1983)
(5) Technical Support Document for Water Quality-based Toxics Control. (1983)
c. NPDES Guidance Documents
(1) NPDES Best Management Practices Guidance Manual (June 1981).
(2) Case studies on toxicity reduction evaluation (May 1983).
d. Ground Water/UIC Guidance Documents
(1) Designation of a USDW(No. 7.1, October 1979)
(2) Elements of aquifer identification (No. 7.2, October 1979)
(3) Interim Guidance Concerning Corrective Action for Primary and Continuous Release of Class I and IV Hazardous Waste wells (No. 45, April
1986) requirements
(4) Requirements applicable to wells injected into, through, or above an aquifer that has been exempted pursuant to Section 146.104(b) (4). (No.
27, July 1981)
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EXHIBIT 1-10
(Continued)
OTHER FEDERAL AND STATE CRITERIA. ADVISORIES. AND GUIDANCE TO BE CONSIDERED
(5) Guidance for UIC implementation on Indian Lands. (No. 33, October 1983)
e. Ground-Water Protection Strategy (August 1984).
f. Clean Water Act Guidance Documents (See Exhibit 3-1).
4. USEPA Manuals from the Office of Research and Development
SW846 methods - Laboratory analytic methods (November 1986)
" Lab protocols developed pursuant to Clean Water Act Section 304(h).
5. Nonpromulgated State Advisories
State approval of water supply system additions or developments.
" State ground water withdrawl approvals.
Note: Many other State advisories could be pertinent. Forthcoming guidance will include a more comprehensive list.
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CHAPTER 2
GUIDANCE FOR CERCLA COMPLIANCE WITH RCRA
2.0 INTRODUCTION
This chapter addresses compliance of CERCLA remedial actions with applicable
or relevant and appropriate requirements in RCRA (42 U.S.C. 6901),as amended by
HSWA, and regulations promulgated under that statute.1 RCRA currently has nine
discrete sections (Subtitles) that deal with specific waste management activities.
Three of these Subtitles are most likely to be the basis for applicable or relevant
and appropriate requirements for CERCLA remedial actions: Subtitle C (Hazardous
Waste Management), Subtitle D (Solid Waste Management), and Subtitle I (Underground
Storage Tank Regulation). Of these, the provisions in Subtitle C, which mandate the
creation of a "cradle to grave" management system for hazardous waste by regulating
the generation, transportation, treatment, storage, and disposal of hazardous
waste,2 have the greatest likelihood of being applicable or relevant and appropriate
to CERCLA actions, because they address situations similar to CERCLA site conditions
or activities. This chapter therefore mainly addresses Subtitle C, but also
references Subtitles D and I where appropriate.
Many of the potential ARARs have been listed in Exhibits 1-1
(Chemical-Specific Requirements), 1-2 (Location-Specific Requirements) and 1-3
(Action-Specific Requirements) in Chapter 1, Section 1.2.3. Therefore, this chapter
concentrates on issues that can arise in determining whether RCRA requirements are
applicable or relevant and appropriate in particular site-specific circumstances.
This chapter is organized as follows:
Section 2.1 highlights the importance of coordination between CERCLA and RCRA
offices.
Section 2.2 provides a description of the basic structure and purposes of
RCRA.
Section 2.3 addresses the jurisdictional requirements for RCRA applicability.
1 This manual currently addresses RCRA requirements for CERCLA actions only
where hazardous wastes will remain on site. Off-site remedial actions will be
addressed at a later date.
2 Waste is defined by the regulations to be hazardous (unless specifically
excluded) if it meets one of three criteria: (1) it has a characteristic of
hazardous waste (ignitability, corrosivity, reactivity, or toxicity); (2) it is
listed as a hazardous waste; or (3) it is a mixture that contains a hazardous waste.
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Section 2.4 discusses which RCRA requirements (i.e., requirements established
by the Federal program, State programs, and requirements under the Hazardous
and Solid Waste Amendments of 1984 (HSWA)) should be consulted in particular
circumstances.
Section 2.5 addresses issues involved in RCRA storage requirements.
Section 2.6 addresses issues involved in RCRA treatment requirements.
Section 2.7 addresses issues involved in RCRA disposal requirements.
2.1 COORDINATION BETWEEN CERCLA (SUPERFUND) AND RCRA OFFICES
This chapter is written to provide an overview of key RCRA requirements that
may be applicable or relevant and appropriate to CERCLA remedial actions. However,
since RCRA statutory and regulatory requirements are complex and many RCRA
regulations are still under development, it is important that the lead agency
consult with Regional and State RCRA experts3 for assistance in identifying RCRA
ARARs. Each Region should develop procedures, protocols, or memoranda of
understanding that, while not recreating the administrative aspects of a permit,
ensure such early and continuous coordination. Such procedures may also include a
mechanism for keeping the appropriate State or Federal RCRA program informed of how
RCRA ARARs are met during the remedial construction phase. (See also Chapter 1,
Section 1.2.1) .
In addition, since Superfund program policy on RCRA ARARs will continue to be
developed as new RCRA regulations are promulgated, it may also be important to
consult with the appropriate Headquarters Superfund office on questions regarding
potential RCRA ARARs.
2.2 OVERVIEW OF RESOURCE CONSERVATION AND RECOVERY ACT (RCRA)
The Resource Conservation and Recovery Act (RCRA) was passed in 19764 to meet
three goals: the protection of human health and the environment, the reduction of
waste and the conservation of energy and natural resources, and the reduction or
elimination of the generation of hazardous waste as expeditiously as possible. The
Hazardous and Solid Waste Amendments (HSWA) of 1984 significantly expanded the scope
of RCRA by adding new corrective action requirements, land disposal restrictions,
and technical requirements.
3 Consultation with State RCRA experts is particularly important where States
are authorized to administer and enforce RCRA (see section 2.4).
4 RCRA (Pub. L. No. 94-580, 90 Stat. 2795) was passed in 1976 as a series of
amendments to the Solid Waste Disposal Act of 1965 (Pub. L. No. 89-272) . The
amendments were so extensive that the statute is commonly referred to as RCRA.
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The RCRA regulations implementing Subtitle C establishing the hazardous
waste management system first became effective on November 19, 1980. (The
regulations were published on May 19, 1980, (45 FR 33066) and became effective six
months later.) Additional standards pertaining to the management of hazardous waste
at permitted treatment, storage, and disposal facilities have been issued
periodically since. Included among these are the land disposal restrictions under
Subpart F (see p. 2-21 for effective dates) and tank system regulations (see p.
1-48, p. 2-12, and p. A-6), which became effective January 12, 1987.
The regulations comprising the management system are of two types: general
standards that govern such topics as ground-water protection, closure, and
post-closure care requirements for facilities (40 CFR Part 264 Subparts B through
G), and specific standards that regulate the installation, operation, inspection,
and closure of containers, tanks, surface impoundments, waste piles, land treatment
units, landfills, incinerators, and the processes of thermal treatment, chemical or
biological treatment, and underground injection (40 CFR Part 264 Subparts I through
O and X, and 40 CFR 265 Subparts P, Q, and R).
For CERCLA actions which involve treatment, storage, or disposal of RCRA
hazardous waste after July 26, 1982, the 40 CFR Part 264 standards promulgated on
that date will generally be applicable. (Note further discussion of Part 264 Subpart
F requirements in Section 2.7.4.1 below). If RCRA hazardous waste was treated,
stored, or disposed at the site before the effective date of these Part 264
standards, the Part 264 standards would not be applicable if the CERCLA action does
not involve current treatment, storage, or disposal, but may be relevant and
appropriate.
While EPA has promulgated regulations in many areas since RCRA was first
passed, the Hazardous and Solid Waste Amendments of 1984 (HSWA) will result in
promulgation of additional requirements pertaining to several topics. Final
Promulgation of regulations to implement HSWA are expected in the future in the
following areas that may affect CERCLA cleanup actions:
N Standards for underground storage tanks containing Petroleum or hazardous
chemicals (proposed 52 FR 12662, April 17. 1987);
N New procedures for determining if a waste is a hazardous waste
(forthcoming);
N Technical standards for liners and leak detection systems in new landfills,
surface impoundments, waste piles, underground tanks, and land treatment
units (proposed 52 FR 20218, May 29, 1987);
N Regulations for the monitoring and control of air emissions for volatile
organics control at land disposal facilities (proposed 52 FR 3748, February
5, 1987);
N Requirements concerning land disposal restrictions on hazardous wastes
(promulgated in part on November 7, 1986 and July 8, 1987 and
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forthcoming according to the schedule listed on p. 2-21). Land disposal of
contaminated soil or debris resulting from a response action under CERCLA
§104 or §106 is currently exempt from theses requirements. This statutory
exemption period will end on November 8, 1988.
N Regulations under Subtitle D affecting solid waste disposal facilities
(forthcoming).
N Regulations specifying procedures for carrying out corrective actions at
RCRA facilities (forthcoming).
N Requirements concerning restrictions of hazardous wastes in underground
injection wells (forthcoming).
These regulations, when promulgated, are likely to be ARARs in certain
circumstances. As these and other regulations are promulgated, this manual will be
updated as necessary.
2.3 JURISDICTIONS, REQUIREMENTS FOR SUBTITLE C APPLICABILITY
RCRA Subtitle C regulates the treatment, storage, and disposal of hazardous
waste. In determining the jurisdictional requirements of regulations promulgated
under Subtitle C, the definitions of solid waste and hazardous waste, the types of
activities covered, and the time periods covered should be analyzed.
In general, RCRA Subtitle C requirements for the treatment, storage, or
disposal of hazardous waste will be applicable if a combination of the following
conditions are met:
(1) the waste is a listed5 or characteristic6 waste under RCRA; and
(2)(a) the waste was treated, stored, or disposed (as defined in 40 CFR
§260.10) after the effective date of the RCRA requirements under
consideration; or
5 Listed hazardous wastes under RCRA are found in 40 CFR Part 261, Subpart D.
The Subpart K lists identify waste streams from specified sources or industrial
processes and certain discarded commercial chemical products as hazardous. Some RCRA
requirements apply to hazardous wastes as defined in RCRA §1004(5) .
6 Characteristic hazardous wastes under RCRA are described in 40 CFR Part 261,
Subpart C. Testing methods and protocols for characteristic determinations
(ignitability, corrosivity, reactivity, and Extraction Procedure toxicity are
contained in Test Methods for Evaluating Solid Waste, 3rd edition, Volume 1C,
Laboratory Manual (SW-846).
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(b) the activity at the CERCLA site constitutes treatment, storage, or
disposal as defined by RCRA.
Thus, there are two scenarios under which RCRA requirements may be applicable
to CERCLA sites. First, if the lead agency determines that RCRA listed or
characteristic hazardous waste is present and the wastes were treated, stored, or
disposed at the site after the effective date of the RCRA Subtitle C requirements
under consideration, then the pertinent RCRA Subtitle C requirements will be
applicable to the waste activity. Generally, traditional RCRA regulated facilities
that have been listed on the NPL may fall into this category, even if the proposed
CERCLA action would not involve treatment, storage, or disposal. For example, if a
RCRA Subtitle C landfill operated at the site after the effective date of the RCRA
closure requirements, then the lead agency would need to comply with the applicable
closure requirements for those units in completing the remedial action.
Under the second scenario, the CERCLA activity involves treatment, storage, or
disposal of hazardous waste. If the lead agency determines that RCRA listed or
characteristic hazardous waste is present at the site (even if the waste was
disposed before the effective date of the requirement) and the proposed CERCLA
action involves treatment, storage, or disposal as defined under RCRA Subtitle C,
then RCRA requirements related to those actions would be applicable.
These two scenarios are contingent upon determinations that a RCRA Subtitle C
hazardous waste is present and on the identification of the period of waste
management. To determine whether a waste is a listed waste under RCRA, it is often
necessary to know the source. However, at many Superfund sites no information exists
on the source of the wastes. The lead agency should use available site information,
manifests, storage records, and vouchers in an effort to ascertain the nature of
these contaminants. When this documentation is not available, the lead agency may
assume that the wastes are not listed RCRA hazardous wastes, unless further analysis
or information becomes available which allows the lead agency to determine that the
wastes are listed RCRA hazardous wastes. If the lead agency is unable to make an
affirmative determination that the wastes are RCRA hazardous wastes, RCRA
requirements would not be applicable to CERCLA actions, but may be relevant and
appropriate if the CERCLA action involves treatment, storage or disposal and if the
wastes are similar or identical to RCRA hazardous waste.
Under certain circumstances, although no historical information exists about
the waste, it may be possible to identify the wastes as RCRA characteristic wastes.
This is important in the event that (1) remedial alternatives under consideration at
the site involve on-site treatment, storage, or disposal, in which case RCRA may be
triggered as discussed in this chapter; or (2) a remedial alternative involves
off-site shipment. Since the generator (in this case, the agency or responsible
party conducting the Superfund action) is responsible for determining if the wastes
exhibit any of these characteristics (defined in 40 CFR §261.21-24), testing may be
required. The lead agency must use best professional judgment to determine, on a
site-specific basis, if testing for hazardous characteristics is necessary.
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In determining whether to test for the toxicity characteristic using the
Extraction Procedure (EP) Toxicity Test,7 it may be possible to assume that certain
low concentrations of waste are not toxic. For example, if the total waste
concentration is 20 times or less the EP Toxicity concentration, the waste cannot be
characteristic hazardous waste. In such a case RCRA requirements would not be
applicable. In other instances, where it appears that the substances may be
characteristic hazardous waste (ignitable, corrosive, reactive, or EP toxic),
testing should be performed.
If the wastes exhibit hazardous characteristics, RCRA requirements are
potentially applicable if the wastes also were either treated, stored, or disposed
after the effective date of the applicable RCRA requirement or if the CERCLA actions
will involve treatment, storage, or disposal.
If RCRA Subtitle C is not applicable, further analysis may be done to
determine whether it is both relevant and appropriate.8 This determination depends
first on whether the waste at the site is "sufficiently similar" to a RCRA hazardous
waste. The following paragraphs provide guidance on evaluating CERCLA waste with
regard to this "sufficiently similar" text.
In addition to identifying hazardous wastes through characteristic testing,
EPA analyzes wastes from specific industries or processes, and lists certain wastes
or waste streams if it determines they should be regulated as a hazardous waste
under RCRA. EPA's listing decision is based on an analysis of a number of factors
that affect the hazard of the waste, including the toxicity of the constituents in
the waste stream and their concentration, persistence, and bioaccumulation
characteristics, as well as volume generated and potential for mismanagement. Simply
the presence of a hazardous constituent in a waste is not sufficient to
automatically consider a waste to be hazardous under RCRA.
Similarly, when evaluating whether Subtitle C requirements are relevant and
appropriate, the mere presence of hazardous constituents in a CERCLA waste does not
mean the waste is sufficiently similar to a RCRA hazardous waste to trigger Subtitle
C as an ARAR. Judguent should be used in assessing whether the waste closely
resembles a RCRA hazardous waste, considering the chemical composition, form,
concentration, and any other information pertinent to the nature of the waste. For
example, waste in barrels that is virtually identical to a listed waste might be
sufficiently similar. By contrast, low
7 Currently, 14 contaminants are listed for the characteristic of EP toxicity.
A waste exhibits the characteristic of EP toxicity if an extract of a representative
sample of the waste, tested using the specified procedures, contains any of these 14
contaminants equal to or greater than the concentration level specified in 40 CFR
§261.24.
8 See Chapter 1, section 1.2.2, p. 1-10, and section 1.2.4.3, p. 1-65 to p.l-
70, for detailed guidance on making the determination that a requirement is both
relevant and appropriate.
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concentrations of a hazardous constituent, dispersed in soil over a wide area, would
generally not trigger Subtitle C as relevant and appropriate. (For determination of
relevance and appropriateness see general discussion on page 1-65.)
2.3.1 DEFINITION OF HAZARDOUS WASTE
Generally, most requirements under RCRA are triggered by the management of
waste defined specifically as solid or hazardous9 (See generally 40 CFR Part 261).
Solid waste is defined very broadly under the regulations to include garbage (i.e.
from households), refuse (metal scrap and other commercial wastes), sludges from
facilities such as wastewater treatment plants and pollution control facilities, and
other discarded materials in solid, semi-solid, liquid, or contaminated gaseous
forms resulting from industrial, commercial, mining, agricultural, and community
activities. Hazardous waste considered a subset of solid waste, and is subject to
regulation under RCRA if:
(1) the wastes exhibit one of four characteristics (ignitability,
corrosivity, reactivity, or EP toxicity);
(2) are waste streams or discarded chemical products listed in the RCRA
regulations as hazardous wastes (40 CFR Part 264 Subpart D); or
(3) are mixtures of solid waste and waste listed as hazardous by RCRA
regulations.
Wastes that are specifically excluded from regulation as a hazardous waste
include household wastes, municipal resource recovery wastes, and some
wastes returned to the land as fertilizer.
9 Most provisions in Subtitle C of RCRA apply to hazardous waste listed or
identified as characteristic pursuant to §3001, as described above in (1) through
(3). However, RCRA §§3004(b), (c), and (u) apply to the broader definition of
hazardous waste found in RCRA §1004(5) : "The term ''hazardous waste' means a solid
waste, or combination of solid wastes, which because of its quantity, concentration,
or physical chemical, or infectious characteristic may cause, or significantly
contribute to an increase in mortality or an increase in serious irreversible, or
incapacitating reversible, illness; or pose a substantial present or potential
hazard to human health or the environment when improperly treated, stored,
transported, or disposed of, or otherwise managed." RCRA §3004 (b) prohibits
placement of noncontainerized or bulk liquid "hazardous waste" (as defined in
§1004(5)) in certain salt domes and other geologic formations. Similarly,
noncontainerized or bulk liquid hazardous waste may not be placed in any landfill
(§3004(c)). Section 3004(u) pertains to corrective action for solid waste management
units at RCRA facilities.
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2.3.2 TREATMENT, STORAGE, AND DISPOSAL OF HAZARDOUS WASTE
Management of hazardous waste is divided by the statute and the regulations
into treatment, storage, and disposal. EPA has determined that the following
jurisdictional prerequisites will trigger the applicability of some portion of the
RCRA 40 CFR Part 264 requirements for a CERCLA remedial action:
(1) RCRA storage requirements apply to the storage of RCRA hazardous waste
after November 19, I960.10 Waste received by a facility before November
19, 1980, is still subject to RCRA requirements if the waste is stored
after that date. Generators storing wastes for less than 90 days are not
required to soak permits, but must satisfy the standards in 40 CPR Part
265 Subpart I for containers or the standards in 40 CFR Part 265 Subpart
J for tanks.11
(2) RCRA requirements for treatment or disposal12 of hazardous wastes apply
if:
10 "Storage" means the holding of hazardous waste for a temporary period, at
the end of which the hazardous waste is treated, disposed of, or stored elsewhere.
(40 CFR §260.10(a)) Secondary containment system regulations for tank systems were
enacted July 14, 1986, and must be met by January 12, 1989 for tanks containing
dioxins, and for other tanks, by January 12, 1991, or when the system has reached 15
years of age, whichever comes later.
11 Generators of hazardous waste may accumulate hazardous waste on-site for
less than 90 days without a permit or interim status, provided that: (1) the waste
is placed in containers or tanks that are in compliance with Subparts I and J of 40
CFR Part 265 (excluding §265.197(c) and §265.200); (2) the containers and tanks are
clearly dated and marked "hazardous waste;" and (3) the generator complies with
Subparts C and D of 40 CFR Part 265 and with §265.16 (see 40CFR §262.34(a)). In
addition, generators of less than 100 kg/month of hazardous waste are not subject to
the 90-day limit (40 CFR §261.5); and generators of less than 1000 kg/month of
hazardous waste may accumulate waste for up to 180 days without a permit (40 CFR
262.34(d) ) .
12 "Treatment" means any method, technique, or process, including
neutralization, designed to change the physical, chemical, or biological character
or composition of any hazardous waste so as to neutralize such waste, or so as to
recover energy or material resources from the waste, or so as to render such waste
non-hazardous or less hazardous; safer to transport, store, or dispose of; or
amenable for recovery, amenable for storage, or reduced in volume. (40 CFR §260.10)
"Land disposal" is defined by Section 3004(k) of RCRA as follows: "when used with
respect to a specified hazardous waste, shall be deemed to include, but not be
limited to, any placement of such hazardous waste in a landfill, surface
impoundment, waste pile, injection well, land treatment facility, salt dome
formation, salt bed formation, or underground mine or cave."
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a) the unit or area of contamination13 contains RCRA hazardous waste that
was treated or disposed of after the effective data of the pertinent
requirements;14 or
b) the CERCLA activity at the unit or area of contamination constitutes
treatment or disposal of RCRA hazardous waste, as defined under RCRA. 15
(3) RCRA corrective action requirements16 apply at sites that are
subject to RCRA regulation under paragraphs 1 and 2 above, and to
all releases of hazardous waste or constituents from "solid waste
management units" existing at facilities containing such units.
Solid waste management units include "any unit from which
hazardous constituents might migrate, irrespective of whether the
units were intended for the management of solid and/or
hazardous wastes." Certain corrective action requirements
specified under HSWA were in 50 FR 28712, July 15, 1985, and 52
FR 45788, December 1, 1987.
13 Disposal of RCRA hazardous waste into a unit or area of contamination (AOC)
will trigger applicability of certain RCRA requirements to the unit or AOC. See
section 2.7 for more detailed discussion.
14 For example, the requirements for groundwater monitoring are applicable to
surface impoundments, landfills, land treatment units, and waste piles that received
hazardous waste after July 26,1982.
15 When current activity at the CERCLA site constitutes treatment or disposal,
the activity must also meet the conditions described in Sections 2.6 or 2.7 of this
chapter.
16 "Hazardous waste" requiring corrective action under §3004(h) is defined
more broadly than wastes listed or identified under §3001. Corrective action applies
to hazardous waste as defined in §1004(5). See Footnote 9.
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A portion of the RCRA requirements under 40 CFR Part 264 will likely be
applicable at most CERCLA sites that contain RCRA hazardous waste because remedial
actions at those sites will generally constitute treatment, storage, or disposal
after the effective date of RCRA. In those cases in which a RCRA facility has been
listed on the NPL, the applicability of RCRA standards to the facility has already
been determined. In addition to the jurisdictional prerequisites listed above,
however, RCRA treatment, storage, and disposal standards each have their own
separate requirements. Therefore it will be necessary to utilize the procedures
outlined in Chapter 1 and take into account issues addressed in this chapter in
order to determine which RCRA requirements are applicable or relevant and
appropriate to particular CERCLA activities.
2.3.3 ADDITIONAL CONSIDERATIONS IN DETERMINING SUBTITLE C ARARs
The following general principles may assist in determining potentially
applicable or relevant and appropriate RCRA requirements17:
N RCRA permits are not required for CERCLA actions taken entirely onsite.
Facilities used for off-site disposal are required by CERCLA §121(d)(3) to
be in compliance with all pertinent RCRA requirements (e.g., have a RCRA
permit or interim status and have any releases from SWMUs being controlled
by corrective action).
N Administrative RCRA requirements, such as reporting and recordkeeping
requirements, are not applicable or relevant and appropriate for on-site
activities.
N RCRA requirements that are not applicable may nonetheless be relevant and
appropriate based on site-specific circumstances. In some cases, the source
or prior use of a CERCLA waste may not be identifiable, but the waste may
be identical in composition to a listed RCRA waste derived from a known
source or use, and therefore RCRA requirements would be relevant. In
addition, a determination mist be made whether the requirement is
appropriate given the circumstances of the release, the site
characteristics, and the remedial activity. Only those requirements that
are determined to be both relevant and appropriate must be complied with.
(See Chapter 1, pp. 1-10 and 1-65 to 1-70 for a detailed discussion of the
determination that a requirement is relevant and appropriate).
17 RCRA guidance, although not ARAR, may also be considered and includes:
Permit Writers' Guidance Manual for the Location of Hazardous Waste Land Storage and
Disposal Facilities: Phase 1, Criteria for Location Acceptability and Existing
Regulations for Evaluating Locations (Final Draft), February 1985; Permit Applicants
Guidance Manual for the General Facility Standards of 40 CER 264, SW-968, October
1983; and Guidance for Ground-Water Classification Under the EPA Ground-Water
Protection Strategy, (Final Draft), December 1986.
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RCRA regulations are organized by particular waste management processes (i.e.,
types of technology, such an incineration, tanks, or land treatment) as well as by
general standards (i.e., types of actions, such as disposal, closure, or corrective
action, that may pertain to several different processes). Potential ARARs for CERCLA
sites may pertain to either the process or the action. Action-specific requirements
generally refer to an action or to a particular type of waste management process.
2.4 FEDERAL AND STATES RCRA REQUIREMENTS
Federal regulations under RCRA establish minimum national standards defining
the acceptable management of hazardous waste. States can be authorized by EPA to
administer and enforce RCRA hazardous waste management programs in lieu of the
Federal program if the States have equivalent statutory and regulatory authority. In
these authorized States, the Federal regulations promulgated pursuant to RCRA are
not applicable until the State Adopts the Federal regulations through its own
legislative process. Federal regulations promulgated pursuant to HSWA, however, are
effective immediately. The regulations in these State programs may be more stringent
or have greater scope of coverage than the Federal program. If a State is not
authorized for a particular part of the RCRA program, the Federal government is
responsible for that portion of the program in the State, and Federal regulations
are applicable.
If the CERCLA site is located in a State with an authorized RCRA program, the
State's promulgated RCRA requirements will replace the equivalent Federal
requirements as potentially ARAR. If the remedial action is taking place in a State
without full authorization, Federal requirements may be ARAR, unless the State's
promulgated regulations satisfy the requirement in CERCLA §121 that they are "more
stringent" than the Federal standard. Since-a State standards may need to be
evaluated. To retain final authorization State may be authorized for only a portion
of the RCRA program, both Federal and, the State must adopt HSWA-related
requirements as State law by specified dates. Thus, State authority and regulations
will eventually replace corresponding Federal requirements when the State receives
Federal authorization for HSWA. These requirements would then be analyzed as
potential ARAR.18
Because the timetable for implementation of HSWA requirements extends into the
1990's, consideration of both Federal and State potential ARARs will be necessary
for some time to come. The forthcoming HSWA standards that may affect CERCLA cleanup
actions in the future are listed on page 2-3.
18 Currently, the Agency is developing additional guidance on State ARARS, to
be incorporate in this manual at a later date.
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2.5 RCRA STORAGE REQUIREMENTS
Remedial action at a CERCLA site may require short- or long-term storage of
hazardous substances found at the site.19 Whether RCRA storage requirements will, be
applicable will depend on whether the waste is a RCRA hazardous waste and on
whether the waste has been or will be stored after November 19, 1980. If these
requirements are not applicable, whether they are relevant and appropriate should be
determined based on the procedure for determining relevance and appropriateness
outlined in Chapter 1.
The jurisdictional prerequisites for applicability of the RCRA storage
requirements are:
(1) The substance to be stored must be a RCRA hazardous waste. (If the
substance meets the definition of ignitable or reactive wastes,
incompatible wastes, or special categories of wastes, special
requirements under the RCRA container storage, tank storage, surface
impoundment storage, and waste pile storage regulations pertaining to
these wastes might also be applicable); and
(2) The hazardous waste must be stored after November 19, 1980. Note that
waste received by a facility before that date is still subject to
RCRA requirements if stored in tanks or containers after that date.
Thus, if the CERCLA site contains an existing storage area holding
RCRA hazardous waste, the requirements are applicable.20
Alternatively, if the RCRA hazardous waste first becomes subject to
regulation as a result of the actions taken at the cleanup site, RCRA
storage requirements will be applicable. In these situations
depending on the amounts and types of wastes being stored, different
requirements may become applicable.21
19 RCRA requirements for the use of storage containers are given in 40 CFR
Part 264 Subpart I, those regarding storage tanks are in 40 CFR Part 264 Subpart J,
those regarding storage surface impoundments are in 40 CFR Part 264 Subpart K, and
those regarding storage piles are in 40 CFR Part 264 Subpart L. EPA has recently
issued a notice of proposed rulemaking that would require leak detection systems for
tanks, surface impoundments, and storage piles. (May 29, 1987, 52 FR 20218).
20 The land disposal restrictions rule also provides that any waste that is
prohibited from one or more methods of land disposal also is prohibited from storage
unless the storage is solely to accumulate sufficient quantities of the waste to
allow for proper recovery, treatment, or disposal.
21 There are several types of small quantity generators and different
provisions (40 CFR 1262.34) apply depending on length of storage and amount of
hazardous waste generated. For example, a generator accumulating less than 55
gallons of hazardous waste or one quart of an acutely hazardous waste listed in
§261.33(3) in containers at or near any point of generation where wastes initially
accumulate are not subject to the 90 day limit, as long as
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Finally, when it is determined that a waste is a RCRA hazardous waste, and
that the waste will be stored, a decision must be made as to whether the RCRA
requirements pertaining to storage are applicable. The particular storage
requirements applicable will depend upon the type of container used. Determining
which storage requirements under RCRA, are applicable will require analysis of the
prerequisites included in Subparts I, J, K, or L for the different types of storage.
Subpart I requires determining whether the receptacle satisfies the definition of
"container" in 40 CFR §260.10. Subpart J requires a determination if the receptacle
is a "tank," as tanks are defined by the regulations (40 CPR §260.10). Technical
requirements under HSWA for underground tanks are being developed, and in the future
they will also have to be considered in the ARAR analysis.22 Subpart L requires a
determination whether the waste is being stored in a "pile," as defined in the
regulations. However, certain covered waste piles are exempt from a part of the
waste pile requirements. A decision on the applicability of the waste pile
regulations will require an analysis of both basic definitions and exemotions.
Even if they are not applicable, portions of RCRA requirements for tanks (40
CFR Part 264, Subpart J) may be relevant and appropriate for sites where temporary
storage in tanks is required. For example, the requirement that tanks have
sufficient minimum shell thickness and pressure controls to prevent collapse or
rupture may be relevant and appropriate, since the purpose of this requirement is to
ensure that the tank does not create additional environmental problems due to its
own failure. Subpart J further requires that tanks have an inner lining or coating,
or an alternative means of protection such as cathodic protection or corrosion
inhibitors, in order to ensure that the tank is safe throughout its effective life.
This requirement, while relevant, might not be appropriate unless the tanks were
expected to be in use for several years. For example, if hazardous substances will
be stored temporarily in the tanks and then drained, with the process repeated many
times, then such protection requirements would be both relevant and appropriate.
§§265.171, 265.172 and 265.173(a) are being complied with and containers are
marked clearly as hazardous waste. These sections require that the waste is
being stored in containers that are in good condition, are compatible with the waste
being stored, and are handled properly to prevent rupture or leaking. (40 CFR
§262.34(c)(1)). Generators of between 100 kg. and 1000 kg. of hazardous waste per
month may accumulate it for up to 180 to 220 days (if they comply with tank and/or
container" regulations for storage) without requiring a permit or interim status.
22 Technical standards for underground storage tanks containing petroleum or
hazardous substances were proposed on April 17, 1987, 52 FR 12662.
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2.6 RCRA TREATMENT REQUIREMENTS23
SARA §121 established a preference for remedial actions involving treatment
that permanently and significantly reduces the volume , toxicity, or mobility of the
hazardous substances, pollutants, and contaminants at the site. Whether RCRA
requirements pertaining to treatment will be applicable for a CERCLA activity will
depend on whether the prerequisites for RCRA applicability are satisfied.
RCRA requirements for treatment of hazardous wastes apply at a CERCLA site
only if: (a) the waste is a RCRA listed or characteristic waste; and (b) the CERCLA
activity constitutes treatment of RCRA hazardous waste, as defined under RCRA. The
general RCRA definition of treatment is:
any method, technique, or process, including neutralization, designed to
change the physical, chemical, or biological character or composition of any
hazardous waste so as to neutralize such waste, or so as to recover energy or
material resources from the waste, or so as to render such waste
non-hazardous, or less hazardous; safer to transport, store, or dispose of; or
amenable for recovery, amenable for storage, or reduced in volume. (40 CPR
§260.10)
When it is determined that these conditions are met, it is necessary to
analyze the prerequisites included in the particular subpart that pertains to the
type of treatment being considered, in order to determine which treatment
requirements are applicable.24 Those prerequisites are described in detail in
Exhibit 1-3 (Action-Specific Requirements) in the preceding chapter.
Finally, the RCRA treatment requirements also contain special standards
for ignitable or reactive waste, incompatible waste, and special categories of
wastes. If the requirements pertaining to treatment are otherwise applicable, and if
the wastes to be treated at the CERCLA site fall into any of the above special waste
categories, the special treatment standards for such wastes will be applicable.
23 See Section 2.7.3, Special Restrictions Applicable to Land Disposal, for
discussion of beat demonstrated available treatment technologies (BDAT).
24 RCRA treatment requirements are found in 40 CFR Part 264 Subpart J (Tanks),
Subpart K (Surface Impoundments), Subpart L (Waste Piles), Subpart M (Land
Treatment), Subpart O (Incinerators); 40 CPR Part 265 Subpart P (Thermal Treatment)
and Subpart Q (Chemical, Physical, and Biological Treatment); in proposed standards
for 40 CFR Part 264 Subpart X (Miscellaneous Treatment Units); and in 40 CFR Part
268 (Land Disposal Restrictions). These requirements include design and operating
standards.
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2.7 RCRA REQUIREMENTS TRIGGERED BY DISPOSAL
Remedial actions at a CERCLA site can frequently involve grading, excavating,
dredging, or other measures that move contaminated materials from one place to
another or in other ways disturb them. Such actions may constitute disposal of
hazardous waste.
Definition of Land Disposal
EPA has concluded that moving RCRA hazardous waste (including hazardous waste
that was originally disposed before the 1980 RCRA effective date) constitutes
disposal when RCRA hazardous waste is moved from one unit and placed in another
unit. It should be noted that disposal and placement are synonymous for purposes of
the land disposal restrictions under RCRA. Therefore, land disposal is the same as
placement into a land disposal unit and will be treated as the same action
throughout the remainder of the chapter.
In many cases, an area of contamination at a CERCLA site with differing
concentration levels of hazardous substances, pollutants, or contaminants can be
viewed, as a single large "unit," e.g., a single landfill. In such cases, when RCRA
hazardous waste is moved from one part of the unit to another, disposal/placement
has not occurred. For example, an area of generally dispersed waste containing an
existing or new landfill unit could be viewed as a single large landfill.
Consolidation of waste from throughout the area into the smaller "landfill" would
not constitute disposal/placement under this scenario, because the waste can be
viewed as being part of the same overall
land-based unit.
However, movement or hazardous waste into the area of contamination would make
RCRA requirements triggered by disposal/placement applicable to the waste being
managed and certain RCRA requirements (such as for closure) are applicable to the
entire area of contamination where the waste is received. In addition, placement in
a newly created or existing surface impoundment, or placement in a tank or
incinerator and replacement on land, even within the larger area of contamination,
would trigger applicability of RCRA requirements for disposal/placement, because the
waste is being moved to different types of units.
HSWA fines land disposal as the following
[T]he term "land disposal", when used with respect to a specified hazardous
waste, shall be deemed to include, but not be limited to, any placement of
such hazardous waste in a landfill, surface impoundment, waste pile, injection
well, land treatment facility, salt dome formation, salt bed formation, or
underground mine or cave. (RCRA §3004(k); HSWA §201(k))
RCRA requirements for disposal/placement of hazardous wastes in a landfill,
waste pile, underground injection well, surface impoundment, or land
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farm apply if (a) RCRA hazardous waste25 was placed/disposed into a land disposal
unit after November 19, 1980 (or after the effective date of the appropriate land
disposal regulations); or, (b) if actions at the CERCLA site constitute disposal as
defined above. Exhibit 2-1 presents an illustration of selected actions that
constitute disposal. General types of actions that do or do not constitute
disposal/placement are summarized below. Actions which are not disposal/placement
will not trigger the applicability of RCRA disposal requirements, such as landfill
closure, minimum technology, or land disposal restrictions, but these requirements
may be relevant and appropriate.
EPA has determined that placement/disposal occurs when:
N Wastes from different units are consolidated into one unit (other than a
land disposal unit within an area of contamination);
N Waste is removed and treated outside a unit and redeposited into the same
or another unit (other than a land disposal unit within an area of
contamination) ;
N Waste is picked up from the unit and treated within the area of
contamination in an incinerator, surface impoundment, or tank and then
redeposited into the unit. (Does not include in-situ treatment.)
Placement/disposal does not occur under the following circumstances:
N Waste is consolidated within a unit (including an area of contamination
that can be viewed as a single unit, see p. 2-15);
N Waste is capped in place, including grading prior to capping;
N Waste is treated in situ;
N RCRA hazardous waste is processed within the unit in order to improve its
structural stability for closure or for movement of equipment over the
area. Under this scenario, the wastes are processed in order to stabilize
the wastes prior to capping or for the purpose of moving machinery across
the area. Wastes are not considered to be undergoing treatment in these
situations.
25 Disposal for purposes of §3004 (b), (c), and (u) is not limited to
characteristic waste -- it encompasses the statutory definition of hazardous waste
in §1004(5) of RCRA. See Footnote 9.
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EXHIBIT 2-1
WHAT IS DISPOSAL/PLACEMENT
CONSOLIDATE
OUTSIDE OF AREA
OF CONTAMINATION
YES
TREAT
AND
REPLACE
YES
CONSOLIDATE
IN SAME
AREA
I NO I
CAP
NO
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If disposal of RCRA hazardous waste will occur as part of a CERCLA remedial
action or has already occurred, several RCRA requirements may be applicable to that
action.26 Depending on the precise action to be undertaken, these requirements may
include the following:
N Design and operating requirements in 40 CFR Part 264 for RCRA-regulated
processes that constitute disposal;
N Closure requirements in 40 CFR Part 264; and
N Special RCRA requirements in 40 CFR Part 268 pertaining to the land
disposal of particular hazardous wastes.
Each of these categories of requirements and the actions that trigger then are
described in greater detail in this section.
2.7.1 DESIGN AND OPERATING REQUIREMENTS TRIGGERED BY DISPOSAL
The RCRA regulations recognize that disposal of hazardous waste may take place
in landfills, land treatment units, surface impoundments, waste piles, and by means
of underground injection. The potentially applicable RCRA regulations include design
requirements for landfills, waste piles, surface impoundments, and land treatment
units.
HSWA established new minimum technology requirements for such land disposal
units. If new landfills or surface impoundments are constructed, or if replacements
or lateral expansions27 of existing landfills or surface impoundments are used, they
must satisfy these minimum technical requirements28 (two or more liners and a
leachate collection system between
26 In addition to RCRA disposal requirements, particular RCRA storage and
treatment requirements also may be ARARs, depending on the action to be taken. See
the discussion of these requirements in sections 2.5 and 2.6.
27 "Lateral expansion" is defined to be an expansion of the boundaries of an
existing unit. "Replacement" occurs if a unit is emptied and reused. Reuse occurs if
original waste in removed from a unit and different waste (either treated or
untreated from other units) in put into the unit. If waste is removed from a unit,
treated, and put back into the same unit, replacement does not occur.
28 RCRA §3001 (o) (2) provides that if an owner/operator demonstrates to the
Administrator, and if the Administrator finds that alternative design and operating
practices and location characteristics will prevent the migration of a hazardous
constituent into ground or surface water as effectively as minimum technology
requirements, an exemption to the requirements shall be granted. 40 CFR Part
264.301(b) specifies that the Administrator will consider four factors in granting
the exemption: 1) the nature of the waste; 2) hydrogeology of the site; 3) the
proposed alternative;
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the liners; in addition, for landfills another leachate collection system must be
placed above the top liner)(RCRA 3004(o)). EPA proposed minimum technology
requirements for liners and leak detection systems for new land disposal units on
May 29, 1987 (52 FR 20218). As these and other additional HSWA standards become
effective, new landfills, surface impoundments, waste piles, land treatment units,
and underground tanks also will be required to satisfy additional leak detection
requirements .29
Surface impoundments in existence on November 8, 1984, must be retrofitted to
meet minimum design standards by November 8, 1988 (RCRA 3005(j)), if they will be in
operation after that date, unless they meet certain statutory exceptions. Thus, use
after November 8, 1988, of existing surface impoundments at a CERCLA remedial action
site will trigger specific retrofitting requirements for surface impoundments, and
construction of new units must conform to specific minimum technological
requirements or obtain a waiver or exemption from them if RCRA hazardous waste will
be disposed in the units.
2.7.2 CLOSURE REQUIREMENTS
Application of Closure Requirements. Excavation, consolidation, and other
similar actions that move RCRA hazardous waste across the unit boundary, thereby
constituting disposal under the interpretation described above in section 2.7.1,
will trigger the closure requirements for the units into which the waste is being
disposed. In particular, if soil cleanup is part of the remedy, movement of the soil
containing RCRA hazardous waste across a unit boundary will make the closure
requirements for either clean closure or closure in place (disposal or landfill
closure) applicable to the unit into which the waste is placed.30
If RCRA hazardous wastes deposited at a site before November 19, 1980, are
not moved out, the RCRA, requirements for disposal are not applicable, since the
jurisdictional prerequisites for their applicability are not satisfied. However,
because they are designed to address a problem similar to that being encountered at
the CERCLA site, these requirements may be relevant and appropriate, taking into
account site-specific circumstances. See p. 1-65
and 4) all other factors affecting the leachate.
29 A notice of proposed rulemaking was issued on May 29, 1987 (52 FR 20218)
discussing leak detection regulations.
30 EPA has proposed requirements for "hybrid" or alternate closure options
under RCRA (52 FR 8712, March 19, 1987). Such closures would combine elements of
clean closure and the closure in place alternatives. Because the rules on hybrid
closures are proposed regulations, and have not been promulgated as final rules,
they are not applicable. However, the hybrid closure may be used where closure is
not applicable, but is relevant and appropriate. Additional RCRA corrective action
technical requirements, discussed above, also may affect this issue.
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for a detailed discussion of the determination that a requirement is both relevant
and appropriate.
Types of Closure. RCRA regulations on clean closure (removal and
decontamination) are found in 40 CFR §§264.111, 264.228, and 264.258. They require
all waste residues and contaminated containment system components (e.g., liners),
contaminated subsoils, and structures and equipment contaminated with waste and
leachate to be removed and managed as hazardous waste or decontaminated before the
site management is completed. The level of cleanup required has been interpreted to
be "drinkable leachate" and "edible soils." The basic intent of this provision is to
allow the site to remain without care and supervision after the clean closure has
been completed.
RCRA regulations affecting disposal or landfill closure, in contrast, require
the site to be capped with a final cover designed and constructed to provide
long-term minimization of the migration of liquids through the capped area, and to
maintain its integrity over time while functioning with minimum maintenance (40 CFR
§§264.111, 264.228, 264.258, and 264.310). This type of closure, however,
anticipates that post-closure care and maintenance will be carried out at the
facility for at least 30 years after closure (40 CFR §264.117 (a)(I)).31
Even when the waste found at a CERCLA site in a RCRA hazardous waste, the
situation or waste management activity at the CERCLA site may not technically match
the situation addressed by the regulation, and the RCRA requirement would therefore
not be applicable. (Even if the hazardous waste is not identical to a hazardous
waste, but is very similar, some hybrid closure requirements may be applicable.)
RCRA closure requirements may nevertheless be relevant and appropriate if other
factors are sufficiently similar.
For example, if RCRA hazardous waste was disposed before 1980 in a unit like
those covered under RCRA and the remedial action is designed to leave waste in
place, a portion of one or more of the closure requirements may be relevant and
appropriate. Depending on site circumstances and the remedy selected either clean
closure, landfill closure, or hybrid closure, which combines elements of both, might
be used.
Two scenarios in which a hybrid or alternate approach to closure may occur
(where RCRA closure is not applicable but may be relevant and appropriate) are the
following:
Scenario 1: Although residual contamination is above health-based levels
(i.e., clean closure levels) contamination does not pose a direct contact threat or
impact ground water. Residual leachate contaminant levels exceed health-based
levels. A type of alternate closure, which may be termed "alternate-clean" closure,
could be used. No covers or long-term management
31 Minimal capping requirements (e.g., permeability test) are found in
proposed regulations, but much of the information an capping is found in guidance.
These are not ARAR, but can be used as TBC, as appropriate.
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would be required. However, fate and transport modeling and model verification is
necessary to ensure that the ground water is usable. In this situation, a notice in
the property dead may be necessary indicating the presence of hazardous substances.
Scenario 2: Removal of waste material results in residuals that potentially
pose a direct contact threat but do not pose a threat to ground water. Residual
leachate contamination does not exceed health-based levels. This type of alternate
closure, which may be termed "alternate-landfill" closure, consists of a cover to
address the direct contact threat. The cover, however, may be permeable. Limited
long-term management would include site and cover maintenance and minimal
ground-water monitoring. For this scenario, institutional controls, including
land-use restrictions, would be necessary, based on site-specific considerations.
If, however, the waste is widely dispersed and not contained in a RCRA-type
unit, use of RCRA closure may not be appropriate. For instance, RCRA covers are
generally not appropriate for large municipal landfills or large mining waste sites,
where the waste is generally of a low toxicity and the site encompasses an area that
bears little resemblance to the discrete units regulated under RCRA Subtitle C.
2.7.3 SPECIAL RESTRICTIONS APPLICABLE TO LAND DISPOSAL
Certain activities undertaken involving specific wastes of a remedial action
may be subject to the special restrictions on land disposal of hazardous wastes.
These Land Disposal Restrictions (LDR), established by HSWA, may be required if
placement occurs (placement into a unit is defined as identical to disposal; see p.
2-15 for the HSWA definition of land disposal). These amendments to RCRA prohibit
the land disposal of certain untreated hazardous wastes or the residuals of treated
hazardous waste not meeting specified standards.
The following schedule identifies the categories of waste and the date on
which the particular waste category will be banned from land disposal:
WASTE
Spent solvent wastes
(F001, F002, F003, F004, F005)
BAN EFFECTIVE DATE
November 8, 1986
Dioxin-containing wastes
F020, F021, F022, F023, F026,
F027, F028)
November 8, 1986
California list wastes
July 8, 1987
First third of all ranked and
listed RCRA hazardous wastes
August 8, 1988
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Second third of all ranked and
listed RCRA hazardous wastes
June 8, 1989
All remaining ranked and listed
RCRA hazardous waste and all RCRA
characteristic hazardous wastes
May 8, 1990
Any RCRA hazardous waste listed or
identified under RCRA 3001 after
November 8, 1984
Within six months of
listing or
identification
RCRA wastes treated in accordance with treatment standards set by EPA under
RCRA §3004(m) are not subject to the prohibitions and may be land disposed.32 The
restrictions on land disposal of hazardous wastes apply to RCRA hazardous waste
placed after the effective prohibition date. Wastes land disposed before the
effective prohibition date (and not removed) are not subject to the restrictions.
The treatment standards are to be achieved using the best demonstrated
available treatment technologies (BDAT). The land disposal restrictions regulations
establish treatment standards that are based on BDAT for a given waste. A BDAT
treatment standard can take one of two forms:
(1) a concentration level to be achieved
standard), or
(i.e., a concentration-based
(2) a specified technology that must be used (i.e.,
standard).
a "technology-based"
If the standard is concentration-based, any treatment technology that can
achieve the standard may be used. If the standard is technology-based, that
technology must be used, unless an exemption exists or a variance is granted. Thus,
wastes must be treated according to the appropriate standard before wastes or the
treatment residuals of wastes can be disposed in or on the land.
HSWA does provide certain CERCLA remedial actions with exemptions from
compliance with the land disposal restrictions. Until November 8, 1988, disposal of
soil and debris contaminated with solvents, dioxins, or California list wastes
resulting from a response action taken under §§104 or 106 of CERCLA is not subject
to the land disposal restrictions. EPA extended the exemption for these soil and
debris wastes until November 8, 1990 (and until August 8, 1990 for certain first
third wastes). On November 7, 1986, when the Agency promulgated the first set of
land disposal restrictions, it also established additional temporary exemptions for
several waste categories and provided a schedule of ban effective dates by waste
types.
32 Section 3004 (m) provides that EPA shall "...promulgate regulations
specifying. ..levels or methods of treatment... which substantially diminish the
toxicity of the waste or substantially reduce the likelihood of migration of the
hazardous constituents from the waste."
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In addition, HSWA authorizes EPA to grant national variances from the
effective date of the land disposal restrictions based upon a lack of capacity to
treat the wastes. A capacity variance has been granted for Superfund wastes
containing spent solvents and dioxins that are not soil and debris waste until
November 8, 1988. A capacity variance also exists for a portion of the California
list wastes; for the wastes not granted a variance the testi restrictions are
currently effective. Rules are currently being developed to establish BDAT levels
for contaminated soil and debris. More exemptions and variances may be granted in
the future, as additional regulations are promulgated for remaining wastes. See the
following list of exemptions and variances.
Waste
Exemption/Variance
All solvent, dioxin, and
California list soil and debris
wastes from CERCLA response and
RCRA corrective actions
All RCRA-listed dioxin wastes
Statutory two year exemption from
effective dates until 11/8/88;
exemption extended to 11/8/90
(exemption for certain first thirds
granted until 8/8/90)
Regulatory two-year national variance
until 11/8/88
All RCRA-listed solvent wastes
from CERCLA response and RCRA
corrective actions (non-soil and
debris)
Regulatory two-year national variance
until 11/8/88
Small quantity generator (100
kg-1000 kg per month) of RCRA
solvent wastes
Regulatory two-year national variance
until 11/8/88
Solvent-water mixtures, solvent
containing sludges, or solvent-
contaminated soil or solids (non-
CERCLA or RCRA corrective action)
containing less than 1 percent
total F001-F005 solvent
constituents as initially
generated
Liquid and non-liquid hazardous
wastes containing HOCs in total
concentration greater than or
equal to 1000 mg/1, or 1000
mg/kg, respectively (except for
dilute HOC wastewaters)
Regulatory two-year
variance until 11/8/88
Regulatory two-year national
variance until 7/8/89
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2.7.4 CORRECTIVE ACTION AND GROUND-WATER PROTECTION REQUIREMENTS
RCRA contains several authorities under which corrective action requirements
will eventually be promulgated, and because of the similarity of corrective action
under RCRA to CERCLA cleanup, these requirements are likely to be potential ARARs in
many remedial action situations.
40 CFR Part 264 Subpart F establishes requirements for ground-water protection
for RCRA-regulated land disposal units (waste piles, surface impoundments, land
treatment areas, and landfills) that received hazardous waste after July 26, 1982.
In addition, releases of hazardous wastes or constituents from solid waste
management units (SWMUs) must be cleaned up in accordance with 40 CFR §264.101. The
existing corrective action requirements in 40 CFR §264.101 require the
owner/operator of a facility seeking a permit for the treatment, storage, or
disposal of hazardous waste to institute corrective action as necessary to protect
human health and the environment for all releases of hazardous waste or constituents
from any solid waste management unit at the facility, regardless of the time at
which waste was placed in such unit.
In addition to the regulatory requirements specified by 40 CFR Part 264
Subpart F, HSWA added authority in RCRA §3004(u) for corrective action for all
releases from solid waste management units at RCRA treatment, storage, or disposal
facilities of hazardous waste or hazardous constituents to air, surface waters,
soil, or ground water. Detailed corrective action regulations are currently being
developed; in the interim, corrective actions are being implemented on a
case-by-case basis. The corrective action standards under §3004(u), when they are
promulgated, may be potentially applicable to CERCLA activities conducted at a
facility subject to RCRA Subtitle C regulation, or if the response action itself
involves treatment, storage, or disposal of a RCRA hazardous waste and potentially
relevant and appropriate for similar response actions and wastes. While corrective
actions requirements are specified in a RCRA permit (40 CFR §264.101), CERCLA
on-site remedial actions are not required to obtain permits; however, substantive
corrective action requirements under §3004(u), when promulgated, may be potential
ARARs. This manual will be updated to include further corrective action requirements
when they are promulgated.
The two general types of ground-water corrective action requirements that
should be analyzed are ground-water monitoring under RCRA Subpart F and ground-water
protection (contaminant concentration) standards.
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2.7.4.1 Ground-Water Monitoring Requirements under Subpart F
There are three general types of ground-water monitoring outlined in 40 CFR
Part 264 Subpart F:33
N Detection monitoring (40 CFR §264.98)
N Compliance monitoring (40 CFR §264.99)
N Corrective action monitoring (40 CFR §264.100)
If the CERCLA remedial actions involve creation of a new unit to dispose of RCRA
hazardous waste, the three types of monitoring contained in Subpart F would be
applicable.34 In all other cases, corrective action monitoring (40 CFR §264.100)
will be applicable to remedial actions undertaken at exiting RCRA units or where the
disposal of RCRA hazardous waste (as defined) occurs at an exiting area of
contamination as part of the remedial action. Corrective action monitoring is
generally triggered by remedial action involving management of RCRA wastes. Such
monitoring may be required for three years following completion of the remedy to
ensure that the clean-up level is not exceeded.35
2.7.4.2 Ground-Water Protection Standards under Subpart F
Evaluation of the RCRA ground-water protection standards under Subpart F as
ARARs should be done in the context of the Superfund approach for establishing and
meeting ground-water protection goals. The Superfund approach derives its ground-
water restoration goals primarily from the vulnerability, use, and value of the
contaminated ground waters to their beneficial uses (e.g., restore current or
potential sources of drinking water to drinking water quality ) within time frames
established as appropriate for
33 These requirements are described in detail in RCRA Ground-Water Monitoring
Technical Enforcement Guidance Document, (OWPE/OSWER), September 1986.
34 For CERCLA actions which involve treatment, storage, or disposal of RCRA
hazardous waste after July 26, 1982, the 40 CFR Part 264 standards promulgated on
the date will generally be applicable. If RCRA hazardous waste was treated, stored,
or disposed at the site before the effective date of these Part 264 standards, the
Part 264 standards would not be applicable if the CERCLA action does not involve
current treatment, storage, or disposal but may be relevant and appropriate.
35 Placement of upgradient (background) monitoring wells and RCRA procedures
for sampling and analysis are described in guidance for implementing 40 CFR Part 264
Subpart F. These procedures and guidance, however, are not ARAR, but may be
considered in the development of ground-water monitoring plans at CERCLA sites.
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the specific circumstances at a given site. When contaminated ground water is
identified, the program undertakes an analysis to determine the characteristics of
that ground water, using the framework laid out in EPA's Ground-Water Protection
Strategy and EPA's Ground-Water Classification Guidelines as a guide. Remediation
levels are then established for the site based on an analysis of ARARs and other
requirements "to-be-considered" in determining protective levels. Alternative time
frames for cleanup and different technologies that might be employed to achieve the
selected remediation level should then be considered and analyzed against a series
of criteria (the Superfund approach is discussed in greater detail in Chapter 5).
The requirements of 40 CPR Part 264 come into play as ARARS are analyzed an
part of determining the appropriate remediation level for a site. 40 CFR §264.94
established three categories of ground water protection standards which are
considered by Superfund as potentially applicable or relevant and appropriate
requirements: background concentrations, RCRA Maximum Concentration Limits (MCLs),
and Alternate Concentration Limits (ACLs). In general, Superfund will find MCLs
under the Safe Drinking Water Act (SDWA MCLs) the relevant and appropriate
requirements for most sites. In complying with SDWA MCLs, cleanup will also be
consistent with RCRA MCLs. When no MCL has been established, Superfund remedial
actions substantively meet RCRA Subpart F requirements in one of two ways. In
general, for ground waters with the characteristics of Class I and II aquifers
(i.e., those whose beneficial use will be as drinking water supply), the Superfund
program establishes a remediation level that is the equivalent of a health-based
(i.e., assuming human exposure) ACL under RCRA. For ground waters with the
characteristics of Class III (i.e., cannot be used as drinking water because of high
salinity or naturally occurring widespread contamination) and where MCLs would not
be relevant and appropriate, Superfund establishes levels consistent with
exposure-based (i.e., assuming low likelihood of human exposure) ACLs under RCRA.
Background levels will generally not be adopted by the Superfund program in
establishing remediation levels in Class III ground waters.
The procedure for establishing site-specific ACLs under RCRA is specified in
40 CFR §264.94, and requires a finding that the hazardous constituent in the ground
water will not pose a substantial present or potential hazard to human health or the
environment as long as the ACL is not exceeded. Consideration of numerous factors is
required, affecting primarily:
N Potential adverse effects on ground-water quality, taking into
consideration physical and chemical characteristics of the waste,
hydrogeological characteristics of the setting, the quantity and direction
of ground-water flow, proximity and withdrawal rate of ground-water users,
current and future uses of ground water, the existing quality of the area
ground water, including other sources of contamination, the potential for
health risks, the potential for other damage, the persistence and
permanence of adverse effects; and
N Potential adverse effects on hydraulically-connected surface water, taking
into consideration factors similar to those listed above.
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In evaluating use of ACLs, Superfund considers these and other factors in
establishing site-specific remediation levels.
CERCLA §121(d)(2)(B)(ii) provides a set of three additional conditions
limiting the use of ACLs at Superfund sites where MCLs would otherwise be applicable
or relevant and appropriate. The statute prohibits use of any process for
establishing ACLs for hazardous constituents in ground water (where there is not a
projected entry into surface water) for purposes of an on-site cleanup that assumes
a point of human exposure beyond the boundaries of the facility, except where three
specific conditions are met: "(1) There are known and projected points of entry of
such groundwater into surface water; and (2) on the basis of measurements or
projections, there is or will be no statistically significant increase of such
constituents from such groundwater in such surface water at the point of entry or at
any point where there is reason to believe accumulation of constituents may occur
downstream; and (3) the remedial action includes enforceable measures that will
preclude human exposure to the contaminated groundwater at any point between the
facility boundary and all known and projected points of entry of such groundwater
into surface water." If the conditions are met, the assumed point of human exposure
may be at such known and projected points of entry.
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CHAPTER 3
GUIDANCE FOR COMPLIANCE WITH CLEAN WATER ACT REQUIREMENTS
3.0 INTRODUCTION
This chapter addresses CERCLA compliance with Clean Water Act (CWA) applicable
or relevant and appropriate requirements (ARARs) in remedial actions.1 The CWA has
distinct regulatory features that include site-specific pollutant limitations and
performance standards which are applied primarily for protection of surface water
quality (e.g., regulating point and non-point source discharges to surface water).2
Unlike the RCRA program described in Chapter 2, the CWA does not have specific
technology design and operating requirements that can be linked to specific remedial
technologies. It does, however, have effluent limitations guidelines and standards
supported by technological bases for specified industrial categories, that may be
relevant and appropriate to CERCLA actions.
This chapter provides guidance for CERCLA site personnel based upon the type
of effluent discharge activity likely to occur at CERCLA sites.3 Several types of
discharges regulated under the CWA could occur at a CERCLA site: direct discharge to
surface water or to oceans, indirect discharge to a publicly owned treatment works
(POTW), and discharge of dredged or fill material into the waters of the U.S.
(including wetlands). This chapter is organized into four sections:
N Section 3.1 provides a general overview of the
provisions of the CWA and how they are implemented;
N Section 3.2 provides guidance for compliance with direct
discharge requirements;
N Section 3.3 provides guidance for compliance with indirect discharge
requirements; and
N Section 3.4 provides guidance for compliance with dredge
and fill requirements.
1 The requirements of CERCLA §121 generally apply as a matter of law only to
remedial actions. However, as a matter of policy, EPA will attain ARARs to the
greatest extent practicable considering the exigencies of the situation at the site
when carrying out removal actions.
2 Water quality criteria under the CWA may also be relevant and appropriate to
cleanup of surface and ground water per CERCLA §121(d)(2)(B)(i).
3 Section 118 (a) (2) of the CWA as amended by the Water Quality Act of 1987
specifically requires EPA to "...take the lead in the effort to meet..." the goals
embodied in the Great Lakes Water Quality Agreement (GLWQA) with particular emphasis
on goals related to toxic pollutants. The provisions of the GLWQA will be very
pertinent to sites having discharges to the Great Lakes drainage basin.
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3.0.1 ON-SITE ACTIONS: COMPLIANCE WITH SUBSTANTIVE REQUIREMENTS
CERCLA §121(e) states that no Federal, State or local permit (e.g., a permit
for a direct discharge to surface waters) is required for the portion of any removal
or remedial action conducted entirely on-site. This permit exemption also applies to
any activities that occur on-site prior to the response action (e.g., pump tests
during the RI/FS).4 For purposes of this guidance, a direct discharge of Superfund
wastewaters would be "on-site" if the receiving water body is in the area of
contamination or is in very close proximity to the site and necessary for
implementation of the response action (even if the water body flows off-site).
Superfund sites are not required to comply with administrative requirements
associated with the permitting process for on-site actions. However, remedies
selected must be protective of human health and the environment, and must meet
substantive requirements under any Federal environmental law or more stringent
promulgated State environmental or facility siting law that are identified as
applicable or relevant and appropriate.
It is the responsibility of the lead agency to ensure that substantive
requirements for direct on-site discharges to surface waters and other on-site
actions are identified and complied with even though a permit incorporating that
standard of control is not required. In most cases, this responsibility can be
carried out effectively if the appropriate Regional and State Water personnel are
involved early and continuously in the Superfund process. Section 3.2.4 provides
more detailed guidance on such coordination.
3.0.2 OFF-SITE ACTIONS: COMPLIANCE WITH SUBSTANTIVE AND ADMINISTRATIVE
REQUIREMENTS
Off-site discharges from CERCLA sites directly to receiving waters or
indirectly to POTWs must comply with applicable Federal, State and local
substantive requirements and are not exempt from formal administrative
permitting requirements.5 The formal administrative permitting requirements
for off-site direct discharges are described further in section 3.2.5.
4 EPA interprets "on-site" for permitting purposes to mean the areal extent of
contamination and all suitable areas in very close proximity to the contamination
necessary for implementation of the response action. Actions taken by EPA, other
Federal agencies, States or private parties undertaking removal or remedial actions
under CERCLA §§104, 106, or 122 are covered by the §121(e) permit exemption.
5 The term "indirect discharge" is used when a source discharges waste to a
POTW that treats the waste. Often, the POTW then discharges the treated wastewater
to receiving waters.
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3.1 OVERVIEW OF THE CLEAN WATER ACT
The objective of the Clean Water Act (CWA) is to restore and maintain the
chemical, physical, and biological integrity of the nation's waters. This objective
is achieved through the control of discharges of pollutants to navigable waters.
This control is implemented through the application of Federal, State and local
discharge standards. This section provides an overview of the CWA including a
discussion of the regulated sources and pollutants, limitations and standards, and
how limitations and standards are applied to regulated sources. A summary discussion
of specific CWA provisions is provided in the Appendix.
3.1.1 REGULATED SOURCES AND POLLUTANTS
The CWA prohibits the unpermitted discharge of any pollutant or combination of
pollutants to waters of the United States from any point source.6 A point source is
defined as:
. . . any discernible, confined, and discrete conveyance, including but not
limited to any pipe, ditch, channel, tunnel, conduit, well, discrete
fissure, container, . . . from which pollutants are or may be discharged.
(40 CFR §122.2)
A pollutant is defined for regulatory purposes to include:
. . . dredged spoil, solid waste, incinerator residue, filter
backwash, sewage, garbage, sewer sludge, munitions, chemical
wastes, . . . and industrial, municipal, and agricultural
waste discharged into water. (40 CFR §122.2)
All pollutants are regulated under the CWA. For the purpose of regulation, CWA
§301(b)(2) divides the pollutants into the following three categories:
N Priority pollutants : the 126 individual toxic pollutants contained in
65 toxic compounds or classes of toxic compounds adopted by EPA
pursuant to Section 307 (a) (1) of the CWA, including, for example.
asbestos, benzene, and chloroform;
N Conventional pollutants: pollutants classified, pursuant to CWA
§304 (a) (4), as biochemical oxygen demanding (BOD), total suspended
solids (TSS), fecal coliform, oil and grease, and pH; and
6 "Waters of the U.S." is defined broadly in 40 CFR §122.2 and includes
essentially any water body (including navigable waters) and most wetlands.
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N Nonconventional Pollutants: any Pollutant not identified as either
conventional or priority, i.e., ammonia nitrogen, chemical oxygen
demand (COD), total organic carbon, total solids, and nonpriority
toxic pollutants (40 CFR 122.21 (1) (2) ) .
3.1.2 LIMITATIONS AND STANDARDS
The CWA requires the establishment of guidelines and standards to control the
direct or indirect discharge of pollutants to waters of the U.S. Effluent
limitations developed for the pollutants regulated under the CWA are applied to
point source dischargers on a case-by-case basis. The standards required by the CWA,
and the regulations promulgated to implement these standards (discussed in greater
detail in sections 3.2, 3.3, and 3.4), include:
N Technology-Based Guidelines and Standards. The standards of control
for direct discharges are derived from Title III of the CWA. CWA
§301 (b) requires all direct dischargers to meet technology-based
requirements. These requirements include, for conventional
pollutants, application of the best conventional pollutant control
technology (BCT), and for toxic and nonconventional pollutants, the
best available technology economically achievable (BAT).7 EPA has
determined the technology-based requirements through effluent
limitations guidelines for specific categories of industries, which
are transformed into specific discharge limits by permit writers.
Where effluent guidelines for a specific industry or industrial
category do not exist, e.g., CERCLA sites, BCT/BAT technology-based
treatment requirements are determined on a case-by-case basis using
best professional judgment (BPJ). Once the BPJ determination in made,
the numerical effluent discharge limits are derived by applying the
levels of performance of a treatment technology to the wastewater
discharge.
N Water Quality Criteria. CWA §304 requires EPA to publish water
quality criteria for specific "pollutants, or their byproducts." EPA
develops two kinds of water quality criteria: one for protection of
human health and another for protection of aquatic life. Federal
7 BAT is the major national method of controlling the direct discharge of
toxic and non-conventional pollutants to waters of the U.S. Effluent limitations
achieved through application of BAT represent the best economically achievable
performance of plants within an industrial category or subcategory. BCT is the level
of technology control developed for conventional pollutants.
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water quality criteria are non-enforceable guidelines used by
States to set water quality standards for surface water. To date a
total of 82 water quality criteria documents have been made
available from the National Technical Information Service (NTIS).
EPA has published notice of these documents as they have become
available (45 FR 79318, November 28, 1980; 49 FR 5831, February
15, 1984; 50 FR 30784, July 29, 1985; 51 FR 22978, June 28, 1986;
51 FR 43665, December 3, 1986; 51 FR 8012, March 7, 1986; 52 FR
6213, March 2, 1987). Water quality criteria may be relevant and
appropriate to cleanup of surface and ground water at CERCLA sites
(CERCLA §121(d) (2) (B) (i) ) .
Water Quality Standards. CWA §303 requires States to develop water
quality standards based on Federal water quality criteria to
protect existing and attainable use or uses (e.g., recreation,
public water supply) of the receiving waters. CWA §301(b)(1)(C)
requires that pollutants contained in direct discharges be
controlled beyond BCT/BAT equivalents when necessary to meet
applicable water quality standards. Where State standards contain
numerical criteria for toxic pollutants, appropriate numerical
discharge limitations may be derived for the discharge. Where
State standards are narrative, e.g., "no toxic materials in toxic
amounts," either the whole-effluent or the chemical-specific
approach is generally used as the standard of control.
Ocean Discharge Regulations. CWA §403 prohibits discharges into
marine waters without an NPDES permit. A permit will not be issued
if the discharge will cause unreasonable degradation to the marine
environment. The permit, issued pursuant to 40 CFR Part 125,
Subpart M, may contain monitoring requirements and effluent
discharge limitations based upon limiting permissible
concentrations described in 40 CFR Part 227, Subpart G.
Substantive requirements of ocean discharge regulations are
potential ARARs for on-site CERCLA action.
Pretreatment Standards. CWA §307 (b) requires the establishment of
pretreatment standards for the control of pollutants discharged
into POTWs by industrial and other nondomestic sources, i.e.,
indirect dischargers. The purpose of the standards is to prevent
the discharge of pollutants that pass through (are not susceptible
to treatment by the POTW) or interfere with the POTW (inhibit or
destroy the operations, contaminate sludge, or endanger the health
of POTW workers). For many
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industries, EPA has promulgated national categorical pretreatment
standards for toxic pollutants. However, such standards do not cover
all industrial categories or regulate all of the pollutants
discharged to POTWs. Therefore, EPA's regulations further impose
general prohibitions (pass through and interference) and specific
prohibitions (see section 3.3.1) on indirect discharges. These
prohibitions apply directly to all nondomestic sources and are
implemented through the development and enforcement of local limits,
i.e., pretreatment requirements applied to wastewater discharges
before they reach the POTW.
N Dredge and Fill Standards. CWA §404 regulates the discharge of
dredged or fill material into waters of the U.S. This program is
implemented through regulations set forth at 33 CFR Parts 320 through
330 and 40 CFR Part 230. These regulatory requirements ensure that
proposed discharges are evaluated with respect to impacts on the
aquatic ecosystem. The benefits that reasonably may be expected to
accrue from the dredge and fill activity must be balanced against its
reasonably foreseeable detriments (see section 3.4.3) . Section 103 of
the Marine Protection Research and Sanctuaries Act regulates
discharge of dredged material into oceans.
3.2 GUIDANCE FOR COMPLIANCE WITH DIRECT DISCHARGE REQUIREMENTS
3.2.1 TYPES OF DIRECT DISCHARGES
Several types of cleanup activities could be considered "direct discharges"
from a point source under the CWA. These activities, which trigger action-specific
requirements for the discharge, include:
N On-site waste treatment in which wastewater8 is discharged directly
into a surface water body in the area of contamination or in very
close proximity to this area via a pipe, ditch, conduit, or other
means of "discrete conveyance."
N Off-site treatment in which wastes from the site are piped or
otherwise discharged through a point source to an off-site surface
water.
8 Wastewater may include contaminated ground water pumped, treated, and
discharged to surface water.
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N Any remedial action in which site runoff would be channeled directly
to a surface water body via a ditch, culvert, storm sewer, or other
means.
It should be noted that contaminated ground water that naturally flows into
surface waters is not considered a point source discharge. However, such
contaminated ground water which enters a surface water may be subject to Federal
water quality criteria or State water quality standards.
3.2.2 OVERVIEW OF NPDES PERMITS
The National Pollutant Discharge Elimination System (NPDES) program is the
national program for issuing, monitoring, and enforcing permits for direct
discharges. The CWA established the NPDES permit program under §402 of the Act to
implement the regulations, limitations, and standards promulgated pursuant to §§301,
304, 306, 307, 308, and 403 of the CWA for point source direct discharges. The NPDES
program is implemented under 40 CFR Parts 122-125. NPDES permits contain applicable
effluent standards (i.e., technology-based and/or water quality-based), monitoring
requirements, and standard and special conditions for discharge. The NPDES program
is administered by EPA and by State agencies authorized by EPA to administer a State
program equivalent to the Federal NPDES program. Regardless of whether States are
authorized to administer the NPDES program, they may establish more stringent
requirements than those contained in the Federal program.
3.2.3 GUIDELINES FOR DETERMINING SUBSTANTIVE REQUIREMENTS
Both on-site and off-site discharges from CERCLA sites to surface waters are
required to meet the substantive CWA NPDES requirements, including discharge
limitations, monitoring requirements, and best management practices. These
requirements will be contained in an NPDES permit for off-site CERCLA discharges
(see section 3.2.5). For on-site discharges from a CERCLA site, these substantive
requirements must be identified and complied with even though an NPDES permit will
not be obtained. The following sections describe the substantive requirements of the
CWA as implemented through the NPDES program.
3.2.3.1 Technology-Based Standards
The wastewater treatment technologies proposed in considering alternatives for
a CERCLA site are required to meet BCT/BAT requirements (see section 3.1.2). Due to
the lack of national effluent limitations guidelines for CERCLA site wastewater
discharges, technology-based effluent limitations have to be imposed on a
case-by-case basis. Therefore, best professional judgment (BPJ) is used to identify
BCT/BAT equivalent discharge requirements.
During an initial BPJ evaluation, a proposed CERCLA response alternative
should be reviewed to ensure the use of treatment technologies that have been proven
effective to treat the pollutants or classes of pollutants present in the
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CERCA site wastewater (see p. 3-36, Exhibit 3-1 which is a list of the development
documents that provided the basis for the BAT categorical standards). Then,
numerical effluent limitations or treatment efficiency requirements can be developed
for the specific situation (section 3.2.4 addresses how to coordinate with water
program offices in order to identify substantive requirements). Factors that must be
evaluated to determine the appropriateness of the selected technology as BCT/BAT
include the process employed, the engineering aspects of the application of various
types of control techniques, process changes, the cost of achieving such effluent
reduction, non-water quality environmental impact, and other appropriate factors.9
(See CWA §304 and 40 CFR §§122 and 125.3(c)(3)). RPMs will follow a process similar
to a BPJ determination in developing numerical effluent limitations. State or
Regional water quality staff may be consulted during the development of effluent
limitations.
A direct method for initially establishing effluent discharge limits for
direct discharges an a case-by-case basis is to identify and use existing data on
the application of treatment technologies to the classes of wastes found at CERCLA
sites. The data needed to apply existing treatment technology performance to a
CERCLA site include the following:
N Description of wastes;
N Concentration of pollutants in waste;
N Engineering information - flow rates, volume, treatability
information; and
N Expected treatment (removal/destruction) efficiency.
In general, the considerations involved in using technology-based information
to set case-by-case discharge limits include the following:
N Performance data should be based on the removal of identical or
chemically similar pollutants to those found in the CERCLA discharge;
N Performance data should pertain to the treatability of wastewaters
containing approximately the same pollutant concentration levels an
those found in the CERCLA discharge;
9 In determining BAT for a specific source, costs are considered but are
generally not balanced against pollutant removal benefits. In determining BCT, the
reasonableness of the relationship between the costs of obtaining a reduction in
effluents and the effluent reduction benefits is considered. Further, this
relationship is compared to the cost and level of reduction of such pollutants by a
POTW.
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N Compositional differences between the CERCLA discharge and the
discharge for which treatability data are available should be
noted;
o The variability in pollutant concentration levels in the CERCLA
discharge may affect treatability; and
N Major differences between the average flow at the discharge for
which treatability data exist and the average flow of the CERCLA
discharge should be noted.
As mentioned above, in order to effectively assess wastewater treatability
using technology-based limitations, available performance data should be obtained
which document the efficiency of existing treatment technologies in treating
wastewater of similar composition. If such data is not available, pilot tests may
have to be conducted. Treatment technologies are usually geared toward the removal
of general classes of pollutants (e.g., air stripping units remove volatile
organics). Removal efficiencies for specific pollutants within any general category
may vary when using any particular treatment technology and may necessitate close
control (e.g., pH adjustment for precipitation of metals).
Further guidance regarding the use of BPJ to develop technology-based
discharge limitations can be found in the following Agency guidance manuals:
N Training Manual for NPDES Permits Writers, March 1986.
N Development of Case-Bv-Case Discharge Permits Under
the NPDES and Pretreatment Programs (Draft),
U.S. EPA, Region 8, October 1986.
N Developing Requirement for Direct and Indirect
Discharges of CERCLA Wastewater (Draft), March 1987.
3.2.3.2 Water Quality Criteria
CERCLA §121 states that hazardous substances, pollutants, or contaminants
left on-site at the conclusion of the remedial action shall attain Federal water
quality criteria where they are relevant and appropriate under the circumstances
of the release or threatened release. CERCLA §121(d)(2)(B)(i) requires that this
determination is to be based on the designated or potential use of the water, the
media affected, the purposes of the criteria, and current information.
Whether a water quality criteria is relevant and appropriate depends on the
use(s) designated by the State, which is based on existing and attainable uses,
and whether the water quality criteria is intended to be protective of that use.
Water quality criteria for protection of human health identify protective levels
from two routes of exposures -- exposure from drinking the water and from
consuming aquatic organisms, primarily fish, and from fish consumption alone.
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Therefore, in waters designated as a public water supply, a water quality
criteria reflecting drinking the water would be relevant and appropriate; the
criteria that reflects fish consumption and drinking the water should be used if
fishing is also included in the State's designated use. If the State has
designated a water body for recreation, a water quality criteria reflecting fish
consumption alone may be relevant and appropriate if fishing is included in that
designation. Generally, water quality criteria are not relevant and appropriate
for other uses, such as industrial or agricultural use, since exposures reflected
in the water quality criteria are not likely to occur.
Water quality criteria without modification are not relevant and
appropriate in selecting cleanup levels in ground water, since consumption of
contaminated fish is not a concern. However, a water quality criteria adjusted to
reflect only exposure from drinking the water may be useful in selecting a
cleanup level.
MCLs represent the level of quality EPA has determined to be safe for
drinking and are generally relevant and appropriate for ground water that is or
may be used for drinking and for surface water designated as a current or
potential drinking water supply. Therefore, when a promulgated MCL exists, the
water quality criteria for that pollutant would not be relevant and appropriate.
A water quality criteria for protection of aquatic life may be relevant and
appropriate for a remedy involving surface waters (or ground water discharges to
surface waters) when the designated use requires protection of aquatic life or
when environmental concerns exist at the site. The presence of organisms more
sensitive than those represented in the toxicological data based from which the
national criteria were derived, or exposure of organisms to multiple toxic
substances with additive or synergistic toxic effects may require application of
more stringent criteria.10 In addition, if protection of human health and aquatic
life are both a concern, the more stringent standard or criterion should
generally be applied.
If a State has promulgated a numerical water quality standard for a given
chemical and use, the State standard would generally be relevant and appropriate
rather than a water quality criteria, because it essentially represents a site-
specific adaptation of a water quality criteria.
If a State has not designated uses for a surface water, whether a water
quality criteria is relevant and appropriate should be based on a site-specific
decision about the existing and attainable uses of the water body, considering
similar criteria used by States in designating uses and in consultation with the
State.
10 For example, the water quality criteria for cadmium for the protection
of freshwater aquatic organisms may, in fact, not be stringent enough to protect
brown and brook trout, (50 FR 30784, July 29, 1985.)
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In addition, CERCLA §121(d)(2) requires that, in determining whether a
water quality criteria is relevant and appropriate, the latest information
available be considered. Thus, a water quality criteria may be relevant but not
appropriate if its scientific basis is not current. To ensure that a water
quality criteria is current, consult with the Regional Water Program office and
the EPA IRIS (see Footnote 21, p. 1-76) .11
3.2.3.3 Water Quality Standards
In addition to technology-based limits, CWA §402 (a) (1), through reference
to CWA §301, requires that all NPDES permits include effluent limitations to
ensure that State ambient water quality standards are met in the receiving water
body at all times.12 Section 303 of the CWA requires States to promulgate water
quality standards. Such ambient State standards will be applicable to CERCLA
discharges in combination with Federal BCT/BAT requirements which regulate the
discharge.
State water quality standards are composed of:
N Use Classification
Use classifications describe the existing and attainable uses for waters
within State boundaries. Although a State may develop its own classification
scheme, designated uses generally include:
Recreation;
Protection and propagation of fish and aquatic life;
Agricultural and industrial uses;
Public water supply; and
Navigation.
N Numerical and/or narrative standards
For each designated use, States are required to establish numerical or
narrative water quality standards necessary to protect the designated use; such
standards are subject to EPA review. (The standard may be a method for
determining numerical discharge limitations, rather than the number itself.)
Discharges of CERCLA wastewater must comply with these promulgated standards.
11 Exhibit 1-1 presents the Federal water quality criteria for priority
pollutants. A summary of water quality criteria developed for protection of fish
and other aquatic life (fresh water, marine, and estuarine) and for protection of
human health may be found in Quality Criteria for Water 1986, EPA 440/5-86-001,
May 1, 1986 (51 FR 43665) - commonly referred to as the "Gold Book."
12 CWA §401 (a) (2) requires that a discharge conform to applicable water
quality requirements where the discharge affects a State other than the State
issuing the NPDES permit.
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Numerical State water quality standards are usually based on Federal
ambient water quality criteria developed by EPA, which are also considered to be
potentially relevant and appropriate under CERCLA §121(d)(2)(A)(ii) (see section
3.2.3.2). States may use ambient water quality criteria in setting water quality
standards, or may set more or less stringent standards, as necessary to protect
designated uses.
Many State water quality standards include narrative criteria to regulate
discharges of toxic pollutants. In general, these narrative criteria prohibit the
discharge of toxic pollutants in toxic amounts, or set a standard at a percentage
(often 10 percent) of the lowest concentration that will kill 50 percent of the
aquatic organisms (LC50) in a standard test. Under the CWA, "toxic" pollutants
are the priority pollutants (listed in Table 1 of the CWA). However, toxic
pollutants which are referred to in State water quality standards are not limited
to those listed in the CWA.
EPA has issued a "Policy for the Development of Water Quality-Based Permit
Limitations for Toxic Pollutants" (49 FR 9016, March 9, 1984). Generally, this
policy states that toxic pollutants contained in direct discharges will be
controlled beyond BCT/BAT equivalents in order to meet applicable water quality
standards. The use of an integrated strategy consisting of both biological and
chemical methods is recommended to control toxic discharges from direct sources.
Two general approaches are used to develop water quality-based toxics
controls: the whole-effluent approach and the chemical-specific approach. The
whole effluent approach considers the effect on the receiving stream of all toxic
constituents in a complex wastewater. This is tested by determining the effects
of the effluent on standard test animals. One or a combination of the following
procedures should be used when implementing the whole effluent approach:
N Set discharge limitation for whole effluent toxicity
by using methods set forth in Federal guidance for
water quality-based toxics control.13
N Develop whole effluent toxicity monitoring
requirements (e.g., the requirement to submit
appropriate bioassays to demonstrate that the
in-stream concentration of the effluent will be less
than the no observable effect level, or NOEL).
N Evaluate monitoring results and then determine whether
to develop toxicity limits where necessary in the
absence of specific State toxicity standards. The
13 See Technical Support Document for Water Quality-Based
Toxics Control (September 1985); A Permit Writers Guide to Water
Quality-Based Permitting for Toxics Pollutants (February 1987.)
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wastewater that shows a problem must be treated in order to reduce
the concentration of toxics in the wastewater to a level less than
that which causes an instream effect.
The chemical-specific approach to toxics control is used where the discharge
constituents are well-defined. Water quality criteria or State water quality
standards can be used to limit specific toxicants directly (i.e., the effluent
discharge limitation will reflect numerical criteria for specific toxic pollutants).
Federal water quality advisories may also be helpful in setting limits for specific
chemicals.
All CERLCA sites where technology-based controls are not adequate to achieve
water quality standards in the receiving water body should be considered for
water-quality based toxics controls, including numerical toxicity limits and whole
effluent limits. The impact of CERCLA discharges could be particularly critical on
(1) a receiving water known to exhibit severe impacts on resident biota, (2) a
receiving water in which the designated use is not being achieved, or (3) a
particularly valuable or sensitive receiving water (e.g., a wildlife/recreation
area) or an area of biological importance (e.g., a fishing ground).
It is important to note that a combination of factors must be evaluated when
deciding if water quality-based toxics controls are necessary for a particular
CERCLA site discharge. The presence or absence of unacceptable effluent toxicity is
sometimes highly variable. The toxicity of an effluent (and the subsequent need for
toxics control) is dependent on many factors including:
Toxicity of materials;
" Treatment system use;
" Treatability of chemicals in the effluent;
" Soundness of best management practices;
Variability of effluent composition and concentration;
Capacity of treatment system; and
Actual retention time of the treatment system.
Coordination with Water Program offices is strongly recommended to ensure that
water quality-based controls, if applicable, are properly implemented to adequately
protect the receiving waters (see section 3.2.4). Guidance for implementing
narrative State water quality standards, including effluent
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toxicity testing monitoring requirements, can be found in EPA guidance manuals.14
3.2.3.4 Antidegradation Policy
In addition to numerical and narrative State water quality standards, each
State is required to develop and adopt a statewide antidegradation policy and
identify the methods for implementing such a policy (40 CFR §131.12).
The objectives of the antidegradation policy are to:
" Protect existing uses of waters;
Maintain the water quality level where it exceeds that which is
necessary to support existing uses; and
Protect high quality waters that constitute an outstanding national
resource, such as waters of national significance and state parks and
wildlife refugees.
CERCLA discharges to high quality receiving waters could be prohibited or
limited if protective standards have been promulgated under the antidegradation
policy. These standards are commonly incorporated in the State's surface water
quality protection statutes.
3.2.3.5 Requirements Regarding Water Quality Standards Imposed by the 1987
Amendments to the CWA
RPMs should be alert to possible changes in water quality standards. Pursuant
to Section 308 of the 1987 Amendments to the CWA, States must, within two years of
enactment of the 1987 Amendments, identify those water bodies within or adjacent to
the State that will not meet State water quality standards because of toxic
pollutants even after the implementation of BAT, new source performance standard,
and pretreatment standards. For each segment of water bodies identified, the State
is to determine the specific point sources discharging toxic pollutants (and the
amount of such discharge) that are believed to be preventing or impairing the
desired water quality. Further, the State is required to develop an individual
control strategy, subject to EPA approval, that will produce a reduction in the
discharge of toxic pollutants from the identified point sources. The control
strategy will include the establishment of effluent limitations and water quality
standards containing numerical criteria.
The proposed strategy, in combination with other controls on point and
nonpoint sources, must achieve the applicable water quality standard as soon as
14 See Footnote 13.
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possible, but not later than 3 years after the establishment of the strategy. If the
State fails to submit an approvable strategy, EPA, with the cooperation of the
State, will develop a strategy meeting the requirements of the Act. The section
provides for judicial review of individual control strategies under CWA §509.
Further, as the State reviews, revises, or adopts water quality standards, CWA
§304(1) requires that the State adopt criteria for all toxic pollutants listed
pursuant to CWA §307(a) for which criteria have been published under CWA §304(a),
the discharge or presence of which pollutant interferes with designated uses. The
State's standards are to be based on specific numerical criteria. Where numerical
criteria are not available, a process that results in a site-specific numerical unit
for specific chemicals may be included in permits.15 The State may also adopt
criteria based on biological monitoring or assessment methods.
3.2.3.6 Ocean Discharge Standards
CWA §403 requires that an NPDES permit for a discharge into marine waters located
seaward of the inner boundary of the territorial seas (i.e., State and Federal
offshore waters) be issued in accordance with guidelines for determining the
degradation of the marine environment.16 This section provides guidance on the
substantive permit requirements which must be not for on-site CERCLA actions when
applicable or relevant and appropriate. The intent of CWA §403 and these guidelines,
referred to as the Ocean Discharge Criteria (40 CFR Part 125, Subpart M), is to
"prevent unreasonable degradation of the marine environment and to authorize
imposition of effluent limitations, including a prohibition of discharge, if
necessary, to ensure this goal".17
An NPDES permit will not be issued (or an on-site discharge will not be
allowed) unless limits can be established that will prevent unreasonable degradation
or irreparable harm. The factors that must be evaluated in determining whether a
discharge will degrade marine waters include the following (40 CER § 125.122):
" Quantities, composition, and potential for
bioaccumulation or persistence of the pollutants;
Potential transport of pollutants by biological,
chemical, or physical processes;
15 48 FR 51400, November 8, 1983.
16 Ocean discharge criteria are implemented through the CWA §402 NPDES program
as outlined in 40 CFR §§125.120-125.124.
17 45 FR 65942, October 3, 1980.
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" Composition and vulnerability of exposed communities;
Importance of the receiving water to spawning, migratory paths, and the
surrounding biological community;
Existence of special aquatic sites;
" Potential effect on human health;
Existing or potential recreational commercial fishing;
Applicable requirements of the Coastal Zone Management Plan;18 and
" Marine water quality criteria developed pursuant to CWA §304(a)(1).
If a determination of unreasonable degradation cannot be made because of a
lack of sufficient information, EPA must then determine whether a discharge will
cause irreparable harm to the marine environment which will not be reversed after
cessation or modification of the discharge and whether there are reasonable
alternatives to ocean disposal. To assess the probability of irreparable harm, EPA
is required to make a determination that the discharger, operating under appropriate
permit conditions, will not cause permanent and significant harm to the environment
during a monitoring period in which additional information is gathered. If data
gathered through monitoring indicate that continued discharge may cause unreasonable
degradation, the discharge shall be halted or additional permit limitations
established.
One approach to conducting a CWA §403(c) evaluation for any discharger is to
identify the pollutants of concern in the effluent, determine their fate in the
environment, and assess their potential effects on marine communities, considering
the factors listed under 40 CFR §125.122 (see above). Site-specific information is
essential in order to identify sensitive or critical marine resources and habitats.
In addition to the monitoring requirements under 40 CFR §125.123 (d),
the NPDES permit for ocean discharges will also include a requirement that the
discharge must comply with the limiting permissible concentrations (LPCs) at the
mixing zone boundary. Under 40 CFR §227.22, LPCs are established for solid, liquid,
and suspended particulate phases of a discharge.19 Specific information
1 8
Volume 3 of this compliance manual, currently under development, will
discuss the requirements of the Coastal Zone Management Plan.
19 Liquid phase LPCs are based on applicable marine quality criteria or upon
bioassay results and are set at levels that will not cause unreasonable acute or
chronic toxicity or other sublethal adverse effects and that will not
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may be required (40 CFR §125.124) for evaluating proposed ocean discharge to an
ocean including:
Analyses of chemical constituents of the discharge and the
potential effect on the biological community;
Appropriate bioassays necessary to determine LPCs;
" Identification of critical habitats (e.g., spawning
sites);
Computer modeling of the dilution and
dispersion of the discharge plume;
" Facility and treatment process description; and
" Evaluations of alternative disposal options.
3.2.3.7 Other Substantive Requirements
In addition to the discharge limitations described above, the NPDES permit
establishes other substantive requirements for the direct discharge of pollutants to
surface waters that may be applicable or relevant and appropriate to circumstances
at a site. These NPDES permit requirements are contained in 40 CFR Parts 122-125 and
include:
" Monitoring. As required in 40 CFR §122.44 (i), continued compliance
with applicable NPDES discharge limitations is ensured through the
establishment of monitoring requirements for the discharger. The
regulation requires monitoring of the mass (or other specified
measurement) of each pollutant regulated and the volume of
effluent discharged from each point source. Other monitoring
requirements include designation of monitoring points, monitoring
frequency, sample types, and analytical methods. In addition to
monitoring for regulated pollutant parameters, monitoring may be
required for other pollutants of concern. These additional
monitoring requirements are developed on a case-by-case basis.
Consistent with the suggested CERCLA/Water coordination procedures
described in section 3.2.4 below, RPMs should provide of
monitoring reports in a form usable by the appropriate Water
Office for input to the Permit Compliance System (PCS). The PCS is
a computerized system that tracks NPDES discharges and assists the
Water Office in determining whether water quality standards are
being maintained.
result in accumulation of toxic materials in the human food chain.
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" Best Management Practices. In addition to standard discharge
limits, best management practices (BMP) provisions can be required
on a case-by-case basis (40 CFR §125.103 (b) ) . These requirements
can be incorporated into the NPDES permit and/or the CERCLA site
decision documents. BMPs are actions or procedures to prevent or
minimize the potential for the release or discharge of toxic
pollutants or hazardous substances in significant amounts. BMPs,
although normally qualitative, are most effective when used in
conjunction with numerical effluent limits. Specific goals of BMP
provisions include ensuring that a discharger institutes good
housekeeping practices, ensuring proper chemical storage, and
controlling contaminated site runoff, leachate and drainage from
material storage areas, sludge and waste disposal, and spills and
leaks.20
3.2.4 COORDINATION BETWEEN CERCLA (SUPERFUND) AND WATER OFFICES FOR ON-SITE
ACTIONS
RPMs will identify ARARs where a treatment technology is being considered
which involves on-site direct discharges to surface waters. In order to do so
correctly and in a timely manner, each EPA Region should establish procedures,
protocols or memoranda of understanding that, while not recreating the
administrative and procedural aspects of a permit, ensure early and continuous
cooperation and coordination between the Regional Superfund and Water offices.
Moreover, State Superfund and Water Program offices should be involved where there
in a State-lead action or where the State has been delegated NPDES authority.
Coordination among all appropriate offices should be established. However, the
Regional Superfund and Water offices should maintain their involvement in all
actions. The Water Program offices' experience in applying standards of control
under the CWA to industrial discharges is a valuable resource for Superfund.
The process of identifying ARARs for remedial actions essentially begins after
the site characterization (during the remedial investigation) and may continue
through the remedial design phase. ARARs are identified in increments of increasing
certainty as more information regarding the site is developed. The appropriate scope
and extent of each Region's coordination procedures for identifying, ARARs should be
determined by the Region. It is recommended that the procedures describe the roles
and responsibilities of the respective offices in relation to the steps in the
Superfund selection of remedy process. The description of roles and responsibilities
should identify those steps where coordination will occur, the level of involvement
anticipated for each of these steps, e.g., written comments at certain stages,
routing procedures, and agreement as to what constitutes timely notification and
timely response between Superfund and Water offices (Regional and State).
Coordination between the
See NPDES Best Management Practices Guidance Document, EPA, (June 1981)
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Superfund and Water offices is recommended at the following steps in the remedial
process :
Preliminary Assessment/Site Investigation. If, as a result of the
preliminary assessment or site investigation, it appears that a
remedial action involving a discharge to surface waters may be
considered, copies of pertinent documents should be sent to Water
offices (Regional and State, if appropriate). Early notice of
possible remedial actions involving discharges to surface waters will
allow Water offices to plan their workloads accordingly.
o Remedial Investigation/Feasibility Study. Water offices should be
kept advised as more information regarding the site and the nature of
the contamination is developed, e.g., types of wastes, affected
media, expected concentrations, and potential treatment technologies.
It may useful to obtain information from Water offices regarding
surface water classifications, existing use designations,
technology-based requirements, and water quality standards. In
addition, preliminary site summaries should be shared with the Water
office.
Further coordination with Water offices should occur when Superfund
offices conduct an initial screening of potential remedial
alternatives. Water offices may provide advice during the planning of
the detailed analysis to be conducted regarding the effectiveness and
implementability of treatment alternatives and the environmental,
fate and effects of the discharge. These detailed analyses should
identify Federal and State ARARs so that each alternative can be
evaluated. The Water office comments should address, where
appropriate, allocation analyses, treatability studies, monitoring
strategies, and effluent limitations and conditions.
Examples of documents that the Superfund office may want to provide
to the Water office are the RI/FS Workplan (draft and final), the
RI/FS report, and the proposed plan.
Selection of Remedy/Record of Decision. Coordination with Water
offices should continue through the selection of remedy stage. When
the selected remedy involves a discharge to surface water, the Water
offices may be able to provide information that will assist the
Superfund office in documenting, in the Record of
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Decision, that the selected remedy meets or exceeds ARARs (or other
health- or risk-based levels established through a risk assessment
when ARARs do not exist or when they are waived).
Remedial Design/Remedial Action. Input from Water offices may assist
the Superfund office in ensuring that the selected remedy is designed
to attain and succeeds in attaining or exceeding all ARARs.
General program coordination outside of specific Superfund projects can also
be enhanced by the exchange of effluent guidelines development documents, which are
the detailed technical bases for the categorical standards (see Exhibit 3-1, p.
3-36), waste treatment literature, revised water quality standards and other
documents which are necessary to identify and comply with ARARs.
3.2.5 ADMINISTRATIVE REQUIREMENTS OF THE NPDES PROGRAM
The NPDES program establishes administrative requirements that must be
complied with prior to and after permit issuance. These requirements would not be
considered ARARs for on-site direct discharges to surface waters because they are
administrative in nature. However, they would be requirements to be complied with in
the NPDES permitting process for off-site direct discharges to surface waters.21
These NPDES administrative requirements include:
Certification: CWA §401 requires that any applicant for a Federal
license or permit to conduct an operation that may result in any
discharge to navigable waters, shall provide to the
licensing/permitting agency a certification from the State that the
discharge will comply with applicable provisions of CWA §§301, 302,
303, 306, and 307.
" Permit Application Requirements: A discharge from a CERCLA site is
considered a "new discharge" for regulatory purposes under the NPDES
program. NPDES regulations (40 CER §122.29) require that applications
for permits for new-discharges must be made 180 days before
discharges actually begin. The information required in a permit
application will be collected during the RI/FS. States with NPDES
authority may have slightly different permit application requirements
for now discharges. The NPDES regulations require that pollution
control equipment must be installed before the new discharge
21 The lead agency (or the PRP in the case of enforcement-lead sites) will
obtain the NPDES permit from either the State or Federal agency, whichever is
authorized to implement the NPDES program.
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begins, and compliance must be achieved within the shortest feasible
time, not to exceed 90 days.
Reporting Requirements. The NPDES permit program requires
dischargers to maintain records and to report periodically on the
amount and nature of pollutants in the wastewaters discharged (40 CFR
§§122.44(i) and 122.48). Reports that are typically required include
emergency reports (required in cases of noncompliance that are
serious in nature) and discharge monitoring reports (routine
monitoring reports).
" Public Participation. CERCLA RPMs should also be aware that any NPDES
discharge limitations and requirements developed for a CERCLA site
are subject to public participation requirements in 40 CFR §124.10,
including public notice and public comment.
3.3 GUIDANCE FOR COMPLIANCE WITH INDIRECT DISCHARGE REQUIREMENTS
In general, a discharge to a POTW is considered an off-site activity.22
Therefore, Superfund is required to comply with substantive and procedural
requirements of the national pretreatment program and all local pretreatment
regulations before discharging wastewater to a POTW.
3.3.1 PRETREATMENT STANDARDS
The national pretreatment program, authorized under CWA §307(b), controls the
indirect discharge of pollutants to POTWs. The goal of the pretreatment program is to
protect municipal wastewater treatment plants and the environment from damage that
may occur when hazardous, toxic, or other nondomestic wastes are discharged into a
sewer system.23 This objective is achieved through pretreatment of wastewaters
discharged by industrial and other nondomestic users (e.g., a CERCLA site) into
POTWs.
The general pretreatment regulations, located in 40 CFR Part 403, are intended
to control the introduction of pollutants into POTWs so as to:
22 Even if CERCLA wastewater is discharged to a sewer located on-site,
treatment by a POTW located off-site is considered an off-site activity.
23 The potential problems to a POTW caused by inadequately treated
discharges are diverse and include damages to the POTW's physical facilities,
threats to the health and safety of POTW workers, inhibition of POTW treatment
processes, the discharge of toxic and other pollutants to the waters of the U.S.,
contamination of the POTW's sludge, and emission of volatile pollutants from the
POTW's sewer and treatment systems into the air.
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" Prevent interference with the operation of a POTW;
Prevent pass through of pollutants through the treatment works; and
" Improve opportunities to recycle and reclaim municipal and industrial
wastewater and sludges.
Interference is a discharge that, alone or in conjunction with discharges from
other sources, inhibits or disrupts a POTW, its treatment processes or operations,
or its sludge processes, thereby causing either a violation of any requirement of
the POTW's NPDES permit or prevention of sewage sludge use or disposal.24
Pass through is a discharge to a POTW that exits the POTW in quantities or
concentrations, which alone or in conjunction with a discharge(s) from other
sources, causes a violation of any requirement of the POTW's NPDES permit.
EPA's regulations at 40 CFR §403.5 include general and specific prohibitions
on discharges to POTWs. The general prohibitions state that pollutants introduced
into POTWs by a non-domestic source shall not cause pass through or interference.
The specific prohibitions preclude the introduction of pollutants that:
Create a fire or explosion hazard in the sewers or treatment works;
" Will cause corrosive structural damage to the POTW (pollutants with a
pH lower than 5.0);
Obstruct flow in the sewer system resulting in interference;
Are discharged at a flow rate and/or concentration that will result
in interference; and
" Increase the temperature of wastewater entering the treatment plant
so as to inhibit biological activity resulting in interference (in no
case shall the temperature of the POTW increase to above 104"F
(40"C)).
Nondomestic users must comply with the general and specific prohibitions. In
addition, pursuant to 40 CFR §403.5(c), some POTWs are required to develop and
enforce specific effluent limitations (i.e., local limits) to implement the
24 Most POTWs are considered direct dischargers and are issued NPDES permits
controlling the discharge of their wastewater to receiving waters.
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general and specific prohibitions. In addition, the POTW may enforce local
prohibitions on wastes with objectionable color, noxious or malodorous liquids,
wastes that may volatilize in the POTW (endangering the health and safety of POTW
workers), radioactive wastes, and other types of wastes that are incompatible with
POTW operations.
The 1987 amendments to the CWA require States to review their water quality
standards and, if necessary, develop toxic discharge control programs (see section
3.2.3.5). The amendments also require an increased EPA effort to develop regulations
for sludge use and disposal. Both of these efforts may affect discharge limitations
under NPDES permits, including POTWs' permits. Revisions to a POTW's NPDES permit
may affect existing pretreatment standards. In general, RPMs should maintain
awareness of the possibility of such changes.
The national pretreatment standards also specify quantities or concentrations
of pollutants or pollutant properties that may be discharged to a POTW by existing
or new industrial users in specific industrial subcategories. These categorical
standards are not applicable requirements because CERCLA cleanup actions do not
presently fit within any industrial category for which such standards exist. However
ever, they may be relevant and appropriate if the considerations underlying the
categorical standard (e.g., type and concentration of pollutant, type of industrial
process that produced the waste) are sufficiently similar to the conditions of the
hazardous substance found at the site. See Exhibit 3-1, p. 3-36 for a listing of
development documents that provide the technical basis for the categorical
standards .
3.3.2 GUIDANCE FOR DETERMINING WHETHER TO DISCHARGE CERCLA WASTEWATER TO A
POTW
A discharge to a POTW must not occur if it will cause pass through,
interference, violations of the specific prohibitions, or violations of the local
limits or ordinance. POTWs under consideration as potential receptors of CERCLA
wastewaters may include those POTWs either with or without an EPA-approved
pretreatment program. POTWs with an approved pretreatment program are required to
have the mechanisms necessary to ensure compliance by nondomestic users with
applicable pretreatment standards and requirements. These POTWs are also required
to have the legal authority to deny or condition discharges that do not meet
pretreatment standards and requirements. POTWs
POTWs with EPA-approved pretreatment programs must, among other things,
establish procedures to notify nondomestic users of applicable pretreatment
standards and requirements, receive and analyze self-monitoring reports from lUs,
sample and analyze industrial effluents, require compliance, conduct inspections,
investigate noncompliance, assess penalties, and comply with public participation
requirements. A NPDES State may apply for approval of a State, pretreatment program
pursuant to 40 CFR §403.10(f). A State with an approved pretreatment program may
assume responsibility for implementing a POTW pretreatment program in lieu of
requiring the POTW to develop a pretreatment program.
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without an approved pretreatment program must be evaluated to determine whether
sufficient mechanisms (i.e., enforceable local limits) exist to allow the POTW to
meet the requirements of the national pretreatment program in accepting CERCLA
wastewaters. Pass through, interference and violations of the specific prohibitions
are always prohibited regardless of whether a POTW has an approved pretreatment program.
The determination of a POTW's ability to accept CERCLA wastewater should be
made during the remedial alternatives analysis under the Remedial Investigation
Feasibility Study (RI/FS) process. Water Division officials and their State
counterparts and representatives of the POTW should participate in the evaluation of
any remedial alternatives recommending the use of a POTW. The following factors
should be evaluated during the remedial alternatives analysis:
" The quantity and quality of the CERCLA wastewater and its
compatibility with the POTW. The constituents in the CERCLA
wastewater must not violate the specific prohibitions, cause pass
through or interference, including unacceptable sludge contamination,
or cause a hazard to employees at the POTW. In some cases, control
equipment at the CERCLA site may be necessary in order to pretreat
the CERCLA discharge prior to discharge to the POTW.26
" If an indirect discharge to a POTW is being considered as an
alternative, RPMs should provide information, such as a description
of the contents and concentrations in the wastewater, in order for
the POTW to evaluate the impacts of a discharge on its treatment
system and on its continued compliance with its NPDES permit. The
RPM, working with the POTW, must perform the necessary analysis
(e.g., pilot tests) to determine whether the CERCLA discharge is
likely to cause interference or pass through at the POTW or to
violate the specific prohibitions.
The POTW's record of compliance with its NPDES permit and
pretreatment program requirements to determine if the POTW is a
suitable disposal site for the CERCLA wastewater. Section 121(d)(3)
of CERCLA prohibits the
26 EPA's Office of Water is developing guidance manuals to assist in
assessments regarding the compatibility of CERCLA wastewater with a POTW and the
requirements necessary for CERCLA wastewater to comply with pretreatment standards.
See also Guidance for POTW Pretreatment Program Development, October, 1983 (includes
discussion on developing local limits).
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discharge of CERCLA wastes to facilities that are not in
compliance with applicable Federal law.27
The potential for volatilization of the wastewater
constituents at the CERCLA site, while moving through the
sewer system, or at the POTW and its impact upon air quality.
The potential for ground-water contamination from transport
of CERCLA wastewater or impoundment at the POTW, and the need
for ground-water monitoring.
The potential effect of the CERCLA wastewaters upon the
POTW s discharge as evaluated by maintenance of water quality
standards in the POTW's receiving waters, including State
narrative standard of "no toxic materials in toxic amounts."
The POTW's knowledge of and compliance with any applicable
requirements or requirements of other environmental statutes.
RCRA permit-by-rule requirements may be triggered if the POTW
receives CERCLA wastewaters that are classified as "hazardous
wastes" without prior mixing with domestic sewage, i.e.,
direct delivery to the POTW by truck, rail, or dedicated
pipe.28 Not all CERCLA wastewaters are considered hazardous
wastes under RCRA (listed or characteristic) ; determinations
must be made on a case-by-case basis.
— if the POTW is operating under an NPDES permit issued
before November 8, 1984, the date of enactment of the
Hazardous and Solid Waste Amendments (HSWA), which
amended RCRA, the following permit-by-rule requirements
under 40 CFR §270.60(c) apply:(l)the POTW must have
an NPDES
27 If a POTW is operating under an expired permit, the conditions of the
permit normally continue in force until the effective date of a new permit. Most NPDES
permits provide for such extensions, unless this would violate State law. Thus, a
CERCLA site could discharge to a POTW that has an expired permit, if the POTW has
received an extension permissable under State law and is in compliance with the
extended permit.
28 The domestic sewage exclusion (DSE) under RCRA Subtitle C provides that
nondomestic wastes are not considered hazardous wastes when they are discharged to
sewers containing domestic sewage that is treated at a POTW. The POTW that accepts
such wastes is not deemed to have received hazardous wastes and, therefore, is not
subject to RCRA permit requirements.
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permit; (2) the POTW must be in compliance with its NPDES
permit; (3) the POTW must comply with RCRA regulations
regarding requesting an identification number, using a manifest
system, identifying manifest discrepancies, and complying with
reporting requirements; and (4) the waste received meets all
Federal, State, and local pretreatment requirements that would
be applicable to the waste if it were discharged through a
sewer, pipe, or similar conveyance (i.e., the same pretreatment
standards as if the domestic sewage exclusion applied).
If the POTW is operating under an NPDES permit issued after
November 8, 1984, including renewed permits, the POTW must
comply with the same permit-by-rule requirements plus
corrective action requirements under 40 CFR §264.101 before
2 9
accepting a discharge of hazardous wastes.
" The various costs of managing CERCLA wastewater, including
all risks, liabilities, permit fees, etc. It may be appropriate
to reflect these costs in the POTW's connection fees and user
charge system.
Based upon consideration of the above elements, the discharge of CERCLA
wastewater to a POTW should be deemed inappropriate if the evaluation indicates that:
The constituents in the CERCLA discharge are not compatible
with the POTW and will cause pass through, interference,
violations of the specific prohibitions, toxic pollutants in
toxic amounts in the POTW's receiving waters, violations of
water quality standards, unacceptable sludge contamination, or
a hazard to employees of the POTW.
The impact associated with transporting the waste to and/or
discharging of CERCLA wastewater into a POTW
29 A RCRA rider permit incorporating the permit-by-rule requirements,
including corrective action, will be issued in conjunction with renewal of the
POTW's NPDES permit after November 8, 1984.
30 SARA §119(c)(5)(D) specifically prohibits EPA from indemnifying an owner or
operator of a facility regulated under the Solid Waste Disposal Act, therefore,
POTWs subject to permit-by-rule provisions cannot be indemnified. EPA has
extended this prohibition of indemnification to any POTW. (For more information,
see OSWER Directive 9835.5.)
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would result in unacceptable impacts upon any environmental
media.
The POTW is determined to be an unacceptable receptor of CERCLA
wastewaters based upon a review of the POTW's compliance
history.
If consideration of the various element indicates that the discharge
of CERCLA wastewater to a POTW is deemed appropriate:
" There should be early public involvement, including contact with
POTW officials and users, in accordance with the CERCLA community
relations plan and public participation requirements;
Federal, State and local pretreatment requirements on the CERCLA
discharge must be determined;
" All other requirements on the CECLA discharge must be identified,
e.g., manifesting requirements under RCRA if CERCLA wastewaters
that are classified as hazardous wastes under RCRA are discharged
directly to the POTW without prior mixing with domestic sewage,
i.e., by truck, rail, or dedicated pipe; and
The POTW's NPDES permit and fact sheet may need to be modified to
reflect the conditions of acceptance of CERCLA wastewaters. Permit
modification may be necessitated by the need to pretreatment
requirements, local limits, monitoring requirements, and/or
limitations on additional pollutants of concern in the POTW's
discharge.
3.3.3 POTW CONTROL MECHANISMS
40 CFR §403.8(f)(iii) of the general pretreatment regulations require the use
of control mechanisms (e.g., permit or order) to regulate indirect discharges to a
POTW. Those control mechanisms contain applicable pretreatment standards including
local discharge prohibitions and numerical discharge limits.
The control mechanisms, in addition to incorporating pretreatment limitations
and requirements, may also include the following:
" Monitoring and reporting requirements to ensure continued
compliance with applicable pretreatment standards. Monitoring and
reporting frequencies vary among POTWs. However, frequencies are
typically based upon factors such as facility flow, types of
pollutants, expected, and process variability.
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" Spill prevention programs to prevent the accidental discharge of
pollutants to POTWs. The required components of a spill prevention
program vary among POTWs. At a minimum, however, most POTWs
require notification for spill events that could have an impact on
their treatment system.
3.4 COMPLIANCE WITH DREDGE AND FILL REQUIREMENTS
3.4.1 DREDGE AND FILL ACTIVITIES
CERCLA activities that may be considered dredge and fill activities include,
but are not limited to the following:
" Dredging of contaminated lake, river, or marine sediments;
Disposal of contaminated soil, waste material, well-drilling
materials, or dredged material in surface water, including most
wetlands;
Capping of the site;
Construction of berms and levees to contain wastes;
" Stream channelization;
" Excavation to contain effluent; and
Dewatering of the site.
3.4.2 AUTHORITIES FOR REGULATING DREDGE AND FILL ACTIVITIES
Dredge and fill activities are regulated under the following
authorities:
" Section 10 of the Rivers and Harbors Act prohibits the
unauthorized obstruction or alteration of any navigable
water of the United States. Navigable waters of the U.S. are
defined an waters that are subject to the ebb and flow of
the tide shoreward to the mean high water mark and/or are
presently used, or have been used in the past or may be
susceptible to use to transport interstate or foreign
commerce. Structures or work in, above, or under navigable
waters are regulated under Section 10. Examples of
activities include dredging, filling, installation of
pilings, and construction of structures such as berms,
levees, coffer dams, and piers.
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" Section 404 of the Clean Water regulates the discharge of
dredged or fill material to waters of the United States.
Federal jurisdiction under Section 404, the is, waters of
the U.S., is broader than that under Section 10 of the
Rivers and Harbors Act and includes all waters of U.S.
including wetlands, the use of which could affect interstate
commerce. Examples of the discharge of dredged or fill
material regulated by Section 404 include (a) disposal of
dredged material in wetlands, (b) capping and (c) construction
of berms and levees. It is important to note that while
the act of excavation and/or dredging is not regulated under
Section 404, the deposition of dredged or excavated
materials in waters of the U.S. is a regulated activity
under Section 404.
Section 103 of the Marine Protection Research and
Sanctuaries Act (MPRSA) regulates ocean discharges of
materials dredged from waters of the U.S. Jurisdictional
limits under Section 103 extend seaward from the low tide
line (baseline of the territorial sea) where a shore
directly contacts the open sea. Section 103 requires that
permits be issued for the transport of that dredged material
for the purposes of dumping it into ocean waters. MPRSA
§103(b) requires that ocean dumping of dredged material be
at sites designated by EPA under MPRSA §102(c).
" 40 CFR Part 6, Appendix A contains EPA's regulations for
implementing Executive Order 11990, Protection of Wetlands,
and Executive Order 11988, Floodplain Management, which
require Federal agencies, wherever possible, to avoid or
minimize adverse impacts of Federal actions upon wetlands
and floodplains, and to preserve and enhance the natural
values of wetlands and floodplains. Federal actions include
dredge and fill activities.
3,4.3 THE ARMY CORPS OF ENGINEERS/EPA PERMIT PROGRAM
The Army Corps of Engineers (the Corps) evaluates applications for permits for
activities regulated under Section 10 of the Rivers and Harbors Act and Section 404
of the CWA.31 Protection of wetlands and other aquatic habitats is one of the
primary goals of the dredge and fill permit program. The Corps
31 A State agency may also be authorized to issue CWA §404 permits in lieu of
the Corps or certain "State regulated waters." See 40 CFR Part 233.
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issues or denies permit applications on the basis of compliance with relevant
portions of the CWA §404(b)(1) guidelines and impact on the public interest (see
next section). EPA also reviews Section 404 permit applications for compliance with
the Guidelines as well as other CWA provisions.
Under CERCLA §121(e), CWA §404 permits are not required for dredge and fill
activities conducted entirely on-site. However, the Corps expertise in assessing the
public interest factors for dredging and filling operations can contribute to the
overall quality of the CERCLA response action.
MPRSA §103(c) requires the Corps of Engineers to notify EPA of its intention
to issue Section 103 permits for ocean dumping of dredged materials. EPA reviews
Section 103 permits for compliance with environmental criteria promulgated by EPA
under Section 102(a) of MPRSA. The Corps cannot issue Section 103 permits that do
not comply with Section 102(a) criteria unless EPA grants a waiver to do so.
3.4.4 SUBSTANTIVE REQUIREMENTS
3.4.4. Dredged and Fill Material Disposal under CWA Section 404 and
Rivers and Harbors Act Section 1032
Superfund's determination whether to discharge dredged or fill material in
waters of the United States should be based primarily on application of the CWA
§404(b)(1) guidelines, promulgated as regulations in 40 CFR §230.10. A guiding
principle of Part 230 is that degradation or destruction of wetlands and other
special aquatic sites should be avoided to the extent possible. Under the CWA
§404(b)(1) guidelines, no discharge of dredged or fill material shall be permitted
if there is a practicable alternative to the proposed discharge that would have less
adverse impact on the aquatic ecosystem, so long as the alternative does not have
other significant adverse environmental consequences (40 CFR §230.10(a)).
Pursuant to 40 CFR §230. 10 (b), no discharge of dredged or fill material shall
be allowed if the discharge:
Causes or contributes to violations of any additional State water
quality standard;
" Violates any applicable toxic effluent standard or discharge prohibition
under CWA §307;
32 Among the factors to-be-considered in determining disposal requirements for
dredged materials in the Great Lakes Basin under Section 404 of the Clean Water Act
are EPA Guidelines for the Pollutional Classifications of Great Lakes Harbor
Sediments and International Joint Commission Average Concentrations.
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" Jeopardizes endangered or threatened species specified under the
Endangered Species Act of 1973 (See Volume 3 of compliance manual); or
Violates requirements to protect any marine protection sanctuary
designated under Title III of the Marine Protection, Research, and
Sanctuaries Act of 1972.
The guidelines also provide that no discharge of dredged or fill material
shall be permitted which will cause or contribute to significant degradation of the
waters of the United States (40 CFR §230.10(c)). Where a discharge would
significantly degrade the waters of the United States, and there are no practicable
alternatives to the discharge, such degradation can often be avoided or reduced and
compliance with the guidelines achieved through the use of appropriate and
practicable mitigation measures to minimize potential adverse impacts of the
discharge on the aquatic ecosystem (40 CFR §230.10(d)). The term "practicable" is
defined in 40 CFR §230.3(q) to mean available and capable of being done after taking
into consideration cost, existing technology, and logistics in light of overall
project purpose."
Determinations of Potential Effects of Discharge
Prior to selecting a remedy which involves the discharge of dredged or fill
material, RPMs, working with the Regional 404/Wetlands Office, must consider the
availability of practicable alternatives to discharges in wetlands and other special
aquatic sites. If no practicable alternative exists, the potential short-term or
long-term effects of the proposed discharge of dredged or fill material on the
physical, chemical, and biological components of wetlands and the associated aquatic
environment should be determined. 40 CFR §230.11 describes the types of effects of a
proposed discharge that must be evaluated and considered in order to mitigate
impacts, including:
Physical substrate determinations;
Water circulation, fluctuation, an salinity
determinations:
" Suspended particulate/turbidity determinations
" Contaminant determinations;
" Aquatic ecosystem and organism determinations;
Proposed disposal site determinations;
Determination of cumulative effects on the aquatic
ecosystem; and
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" Determination of secondary effects on the aquatic
ecosystem (see 40 CFR §§230.11 through 230.54).
Minimizing Adverse Impacts
Examples of specific steps that may be taken to comply with the requirement to
minimize adverse impacts (40 CFR §230.10(d)) are set forth in considerable detail in
40 CFR Part 230, Subpart H, entitled "Actions to Minimize Adverse Effect." The most
preferred type of mitigation is to avoid impacts entirely. In some cases, avoidance
is not possible. In such cases, the goal of mitigation for unavoidable impacts is to
minimize adverse effects. This may include project modifications such as
modification of the choice of disposal site, treatment of material to be disposed,
providing for control of the material after discharge, or, when necessary and
practicable, wetland enhancement, wetland restoration, and in certain instances,
wetland creation (40 CFR §230.75(d), where demonstrated effective techniques are
available. Small scale use of such techniques should be used where proposed
development and restoration techniques have not yet advanced to the pilot
demonstration stage. What, constitutes necessary mitigation at a particular site is
a case-specific determination depending on such factors as the type of activity, the
type of wetland, how well the wetland is presently functioning, etc., always keeping
in mind the goal of preserving wetland values at the site.
ARAR Determination
Section 404 applies to the discharger of dredged and fill materials and
addresses the impacts caused by such discharges. In some CERCLA response actions,
the wetland will already be severely degraded by virtue of prior discharges
of waste. While part of the CERCLA remedy may be to fill in the wetland,
the remedy would contemplate that the fill will serve an environmental benefit.
Where the functioning of the wetland has already been significantly and irreparably
degraded, mitigation would be oriented towards minimizing further adverse
environmental impacts, rather than attempting to recreate the wetland's original
value on-site or off-site. That is, there would be discretion, but no obligation
under CWA §404 for the lead agency to mitigate those impacts that preceded the
remedial fill operation. While CWA §404 is not an applicable requirement in such
cases, mitigation, including wetland restoration and creation, may nonetheless be
appropriate in some circumstances to protect the environmental values of the site.
Moreover, other provisions, most notably 40 CFR Part 6, Appendix A, implementing
Executive Orders 11988 and 11990 (see section 3.4.4.3 below), may require such
mitigation. In addition, independent enforcement authorities under the Clean Water
Act (§§309 and 404) may be used to require private parties responsible for the
original discharge (e.g., the contamination) to conduct appropriate mitigation
activities.
In contrast, there will be other situations where the response action itself
involves a discharge that may destroy an undegraded, functioning wetland. Examples
includes the diversion of surface or ground water through an existing
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wetland, and building access roads in wetlands. Such activities should be avoided to
the extent practicable. For impacts that cannot be avoided or minimized as described
above, enhancement, restoration, or creation of another wetland, as provided in the
CWA §404(b)(1) guidelines, may be applicable or relevant and appropriate to
Superfund actions.
A discharge must comply with the CWA §404(b)(1) guidelines. If the discharge
complies with the guidelines, RPMs shall then consider whether the discharge would
be in the public interest. This includes evaluation of the probable impacts,
including cumulative impacts, of the proposed activity on the public interest. This
evaluation requires a careful weighing of all those factors that become relevant in
each particular case.33 The public interest review factors may not be used to offset
noncompliance with the guidelines. While a discharge that meets the guidelines may
not be permitted if it is concluded that permit issuance is not in the public
interest, the regulations do not allow a determination that it is in the public
interest to issue a permit that does not comply with the guidelines.
In selecting remedies, the RPMs should also consult with the State(s) in which
the waters of the United States to be filled are located. Under CWA §401 no permit
may be used until the State concurs or waives concurrence. Certification primarily
focuses on whether the State believes its water quality standards will be violated
if the discharge occurs; the State, for example, may condition its concurrence on
the inclusion of additional requirements necessary to satisfy State law. More
specific guidance appears in CWA §401(a) and (d) and 40 CFR Part 121.
Since no permit is required in the case of on-site actions, State
certification is not legally required. However, consultation with the State should
occur in general as part of State identification of substantive State ARARS. If a
State determines the discharge would violate the requirements of CWA §401(a)(1), a
discharge of dredged or fill material does not comply with the CWA §404(b)(1)
guidelines (40 CFR 230.10). In such circumstances, the discharge will occur only in
accordance with CERCLA waiver criteria for ARARs. In addition, the State will have
the opportunity to review and concur with the remedy selected in the Record of
Decision.
33 CFR §325.3 (c) sets forth the following factors that the Corps should
evaluate when conducting a public interest analysis: conservation, economics,
aesthetics, general environmental concerns, wetlands, historic properties, fish and
wildlife values, flood hazards, land use, navigation, shoreline erosion and
accretion, recreation, water supply and conservation, water quality, energy needs,
safety, food and fiber production, mineral needs, considerations of property
ownership and, in general, the needs and welfare of the people.
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3.4.4.2 Dredged Material Disposal under Section 103, MPRSA
Consistent with EPA's regulations under 40 CFR §225.2, Superfund's decision to
ocean dispose (seaward of the territorial sea baseline) of dredged material
(generally an off-site activity) needs to consider the following requirements:
Disposal must be at a site designated by EPA for such
use unless disposal at an available, designated site
is not feasible;
" Requests for disposal at a nondesignated site must be
accompanied by a statement of the basis for the
determination that disposal at a designated site is
not feasible.
Requests for ocean disposal of dredged materials under Section 103 of MPRSA must
include the following information:
" Historical uses of the proposed disposal site;
" Documented effects of other current or historical disposal
activities, if any, in the area of the proposed dredged material
site;
Estimated length of time for the proposed dredged
material disposal;
Characteristics , quantities, and composition of the
dredged material; and
" A description of the proposed disposal site characteristics (if it is
not a designated site) necessary for designation under 40 CFR Part
228.
Requests for ocean disposal of dredged material will be reviewed by the Corps of
Engineers (the permit issuing agency) for compliance with EPA's criteria under 40
CFR Part 227, including the following:
Environmental impact criteria;
" Determination of the need for ocean disposal of
dredged materials, including the evaluation of other
available disposal alternatives;
Impact on aesthetic, recreational, and economic
values;
Impact on other uses of the ocean.
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3.4.4.3 Dredged and Fill Material Disposal Under 40 CFR Part 6. Appendix A
40 CFR Part 6, Appendix A, which describes EPA's policy on implementing
Executive Orders 11988 (Floodplain Management) and 11990 (Wetlands Protection),
may be applicable or relevant and appropriate for CERCLA activities.34 The
procedures substantively require that EPA conduct its activities to avoid, to the
extent possible, the long- and short-term adverse impacts associated with the
destruction or modification of wetlands and the occupation or modification of
floodplains. The procedures also require EPA to avoid direct or indirect support of
new construction in wetlands or floodplain development wherever there are
practicable alternatives and to minimize potential harm to floodplains or wetlands
when there are no practicable alternatives.
3.4.5 COORDINATION BETWEEN SUPERFUND AND THE 404/WETLANDS PROTECTION PROGRAM
OFFICES OR OCEAN DISPOSAL PROGRAM
RPMs should early and continuously involve the affected Regional 404/Wetlands
Protection office or Ocean Disposal Program where discharge of dredged or fill
material is being considered as a component of a remedy (see section 3.2.4 generally
describing coordination procedures), or if the CERCLA action has the potential to
affect wetlands.35 If additional expertise is required and can be obtained within
time constraints of the response action, the 404 office or Ocean Disposal Program,
acting as a liaison and working closely with the lead agency Remedial Project
Manager, should consult with other agencies with expertise in dredge and fill-type
determinations: the Corps of Engineers (general expertise in conducting public
interest and Section 404(b)(1) guidelines analyses and in identifying wetland
resources), the Fish and Wildlife Service (identifying endangered species,
evaluating impacts to the Fish and Wildlife community), the National Marine
Fisheries Service (evaluating impacts to commercial and sport fisheries), the
National Oceanic and Atmospheric Administration, and appropriate State agencies.
Advice from the 404/Wetlands Office or Ocean Disposal Program and these other
agencies may assist the lead agency responsible for CERCLA site cleanup in
evaluating the possible impact of proposed actions on the aquatic environment, and
in selecting the best overall remedy through a careful weighing of all relevant
factors. These offices may also advise RPMs on how to minimize and mitigate adverse
environmental impacts.
34 40 CFR Part 6, Subpart A sets forth EPA policy for carrying out the
provisions of Executive Orders 11988 (floodplains Management) and 11990 (Protection
of Wetlands).
35
In Regions 3, 6 and 7, the 404/Wetlands Protection Program Offices are not
located in the Water Office. In Regions 3 and 6, the wetlands program is located in
the Environmental Services Division and in Region 7 is located under the Assistant
Regional Administrator for Policy and Management.
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EXHIBIT 3-1
CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS I/
SOURCES OF AVAILABILITY
INDUSTRIAL
POINT SOURCE
CATEGORY
ALCOHOL FOR
FUEL (SYNFUELS)
40 CFR
PART NUMBER
SUBCATEGORY
S Multimedia
Technical
Support
Document for
Ethenol and
Fuel Industry
EPA PUBLICATION
DOCUMENT NUMBER
EPA 440/1-86-093
NTIS ACCESSION
NUMBER
S Low BTU
Gasifier
Wastewater
(1986)
S Ethenol-for-
fuel (Guidance)
S Low BTU Coal
Gasification
(Guidance)
ALUMINUM FORMING
S Aluminum
Forming
Volumes I & II
(Final)
EPA 440/1-84/073
Vol. I
Vol. II
ASBESTOS
MANUFACTURING
S Building,
Construction
and Paper
(Final)
EPA 4401/1-74/017-a
S Textile,
Friction
Materials and
Sealing
(Final)
EPA 440/1-74/035-a
* * *
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EXHIBIT 3-1 (Continued)
CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS I/
SOURCES OF AVAILABILITY
INDUSTRIAL
POINT SOURCE
CATEGORY
BATTERY
MANUFACTURING
40 CFR
PART NUMBER
SUBCATEGORY
S Battery
Manufacturing
(Proposed)
EPA PUBLICATION
DOCUMENT NUMBER
NTIS ACCESSION
NUMBER
S Errata Sheet
S Battery
Manufacturing
(Final)
EPA 440/1-84-067
Vol. I
Vol. II
PB85-121507
PB85-121515
BUILDERS PAPER
AND BOARD MILLS
S Builders Paper
& Roofing
S Board &
Builders Paper
and Board Mills
(Proposed)
S Pulp, Paper and
Paperboard and
Builders' Paper
& Board Mills
(Final)
CANNED &
PRESERVED FRUITS
& VEGETABLES
S Citrus, Apple &
Potatoes
* * * AUGUST 8, 1988 DRAFT * * *
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EXHIBIT 3-1 (Continued)
CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS I/
SOURCES OF AVAILABILITY
INDUSTRIAL
POINT SOURCE
CATEGORY
CANNED AND
PRESERVED
SEAFOOD
PROCESSING
40 CFR
PART NUMBER
SUBCATEGORY
S Catfish, Crab,
Shrimp
S Report to
Congress,
Section 74
Seafood
Processing
Executive
Summary - (Vol.
I-III)
S Cement
Manufacturing
EPA PUBLICATION
DOCUMENT NUMBER
NTIS ACCESSION
NUMBER
PB81-182354
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EXHIBIT 3-1 (Continued)
CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS I/
SOURCES OF AVAILABILITY
INDUSTRIAL
POINT SOURCE
CATEGORY
40 CFR
PART NUMBER
SUBCATEGORY
Phase I (Final)
EPA PUBLICATION
DOCUMENT NUMBER
NTIS ACCESSION
NUMBER
GPO
STOCK
NUMBER
EPA
COAL MINING
COOLING WATER
INTAKE
STRUCTURES
S Coil Coating
Canmaking Phase
II (Final)
S Coal Mining
(Proposed)
S Coal Mining
(Final)
S Best Technology
Available for
the Location
Design
Construction &
Capacity of
Cooling Water
Intake
Structures for
Minimizing
Adverse
Environmental
Impact
EPA 440/1-81/057-b
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EXHIBIT 3-1 (Continued)
CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS I/
SOURCES OF AVAILABILITY
INDUSTRIAL
POINT SOURCE
CATEGORY
COPPER FORMING
40 CFR
PART NUMBER
SUBCATEGORY
S Copper and
Copper Products
(Draft)
EPA PUBLICATION
DOCUMENT NUMBER
NTIS ACCESSION
NUMBER
DOMESTIC SEWAGE
STUDY -
HAZARDOUS WASTES
S Dairy Products
Processing
S Report to
Congress on the
Discharge of
Hazardous
Wastes to
Publicly Owned
Treatment
works.
ELECTRICAL AND
ELECTRONIC
COMPONENTS
S Electrical and
Electronic
* * * AUGUST 8, 1988 DRAFT * * *
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3-41
EXHIBIT 3-1 (Continued)
CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS I/
SOURCES OF AVAILABILITY
INDUSTRIAL
POINT SOURCE
CATEGORY
ELECTROPLATING
& METAL
FINISHING
FEEDLOTS
FERROALLOY
GPO
40 CFR EPA PUBLICATION NTIS ACCESSION STOCK
PART NUMBER SUBCATEGORY DOCUMENT NUMBER NUMBER NUMBER EPA
413 & 433 S Copper, EPA 440/1-74/003-a PB238834/AS 5501-00816
Nickel,
Chrome, & Zinc
(Final)
- Pre treatment
(Final)
Finishing
(Proposed)
Finishing
(Proposed)
Manual for
Electroplating
and Metal
Finishing
Pre treatment
Standards
( February
1984)
412 S Feedlots EPA 440/1-74/004-a PB23851/AS 5501-00842
(Final)
424 S Smelting and EPA 440/1-74/008-a PB238650/AS 5501-00780
Slag
Processing
* * * AUGUST 8, 1988 DRAFT * * *
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EXHIBIT 3-1 (Continued)
CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS I/
SOURCES OF AVAILABILITY
INDUSTRIAL
POINT SOURCE
CATEGORY
FERTILIZER
MANUFACTURING
GLASS
MANUFACTURING
GRAIN MILLS
GPO
40 CFR EPA PUBLICATION NTIS ACCESSION STOCK
PART NUMBER SUBCATEGORY DOCUMENT NUMBER NUMBER NUMBER EPA
418 S Basic EPA 440/1-74/011-a PB238652/AS 5501-00868
Fertilizer
Chemicals
S Formulated EPA 440/1-75/042-a PB240863/AS 5501-01006
Fertilizer
(Final)
426 S Pressed S Blown EPA 440/1-75/034-a PB256854/1 5501-01036
Glass (Final)
S Insulation EPA 440/1-74/001-b PB238078/0 5501-00781
Fiberglass
(Final)
S Flat Glass EPA 440/1-74/001-c PB238-907/0 5501-00814
(Final)
406 S Grain EPA 440/1-74/028-a PB238316/4 5501-00844
Processing
S Animal Feed, EPA 440/1-74/039-a PB240861/5 5501-01007
Breakfast
Cereal & Wheat
* * * AUGUST 8, 1988 DRAFT * * *
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3-43
EXHIBIT 3-1 (Continued)
CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS I/
SOURCES OF AVAILABILITY
INDUSTRIAL
POINT SOURCE
CATEGORY
INORGANIC
CHEMICAL
MANUFACTURING
40 CFR
PART NUMBER
SUBCATEGORY
S Major Inorganic
Chemical
Products
S Inorganic
Chemicals
Manufacturing
(Proposed Phase
II)
S Inorganic
Chemicals
(Treatability
Study)
S Inorganic
Chemicals
(Final Phase
II)
S Inorganic
Chemicals
(Final Phase
II)
EPA PUBLICATION
DOCUMENT NUMBER
PB85-156446/XAB
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EXHIBIT 3-1 (Continued)
CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS I/
SOURCES OF AVAILABILITY
INDUSTRIAL
POINT SOURCE
CATEGORY
IRON & STEEL
MANUFACTURING
40 CFR
PART NUMBER
Steel Making
Iron & Steel
(Proposed)
Volume I
Volume II
Volume III
Volume IV
Volume V
Volume VI
Iron & Steel
(Final)
Volume I
Volume II
Volume III
Volume IV
Volume V
Volume VI
EPA PUBLICATION
DOCUMENT NUMBER
EPA 440/1-74/024-a
EPA 440/1-80/024-D
NTIS ACCESSION
NUMBER
PB81-184384
PB81-184392
PB81-184400
PB81-184418
PB81-184426
PB81-184434
PB81-184442
Set of Vol's
I thru VI
GPO
STOCK
NUMBER
Guidance Manual
for
Pretreatment
Standards
(September
1985)
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EXHIBIT 3-1 (Continued)
CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS I/
SOURCES OF AVAILABILITY
INDUSTRIAL
POINT SOURCE
CATEGORY
LEATHER TANNING
40 CFR
PART NUMBER
MEAT PRODUCTS
AND ENGINEERING
SUBCATEGORY
S Pretreatment
Public Hearing
Transcript for
Leather Tanning
and Finishing
(February 15,
1980)
S Leather Tanning
(Final)
EPA PUBLICATION
DOCUMENT NUMBER
EPA 440/1-74/016-a
METAL FINISHING
S Metal Finishing
(Proposed)
S Metal Finishing
(Final)
S Guidance Manual
for Electro-
plating and
Metal Finishing
Pretreatement
Standards
(February 1984)
* * * AUGUST 8, 1988 DRAFT * * *
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EXHIBIT 3-1 (Continued)
CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS I/
INDUSTRIAL
POINT SOURCE
CATEGORY
40 CFR
PART NUMBER
SUBCATEGORY
EPA PUBLICATION
DOCUMENT NUMBER
SOURCES OF AVAILABILITY
METAL MOLDING
AND CASTING
(FOUNDRIES)
S Metal Molding
and Casting
(Vol. I & II)
(Proposed)
S Metal Molding
Casting
(Foundries)
(Final)
MINERAL MINING
PROCESSING
S Minerals for
the
Construction
Industry
NONFERROUS
METALS FORMING
S Nonferrous
Metals Forming
(Final)
EPA 440/1-84/019-b
Vol. I
Vol. II
Vol. Ill
NONFERROUS
METALS
MANUFACTURING
S Bauxite
Refining
Aluminum
Segment
EPA 440/1-74/091-c
S Secondary
Aluminum
Smelting-
Aluminum
Segment
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EXHIBIT 3-1 (Continued)
CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS I/
SOURCES OF AVAILABILITY
INDUSTRIAL
POINT SOURCE
CATEGORY
OIL & GAS
EXTRACTION
40 CFR
PART NUMBER
SUBCATEGORY
S Onshore
(Interim Final
(Includes
Offshore)
EPA PUBLICATION
DOCUMENT NUMBER
S Oil & Gas
Extraction
(Proposed)
PB86-114949/XAB
Assessment of
Environmental
Fate & Effects
of Discharge
from Offshore
Oil and Gas
Operations
ORE MINING AND
DRESSING
S Ore Mining and
Dressing Volume
I
S Ore Mining and
Dressing Volume
II
S Ore Mining &
Dressing
(Proposed)
S Ore Mining &
Dressing
(Final)
* * * AUGUST 8, 1988 DRAFT * * *
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EXHIBIT 3-1 (Continued)
CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS I/
SOURCES OF AVAILABILITY
INDUSTRIAL
POINT SOURCE
CATEGORY
ORGANIC
CHEMICALS
MANUFACTURING &
PLASTICS AND
SYNTHETIC FIBERS
40 CFR
PART NUMBER
414 and
416
SUBCATEGORY
S Major Organic
Products
Organic
Chemicals &
Plastics &
Synthetic
Fibers
(Proposed)
Selected
Summary of
Information in
Support of
Organic
Chemicals,
Plastic &
Synthetic
Fibers (July
1985)
EPA PUBLICATION
DOCUMENT NUMBER
EPA 440/1-83/009-b
Vol. I
Vol. II
Vol. Ill
Guidance Manual
for
Implementing
Total Toxic
Organic
(TTO)Pretreat-
ment Standards
(September
1985)
* * *
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EXHIBIT 3-1 (Continued)
CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS I/
SOURCES OF AVAILABILITY
INDUSTRIAL
POINT SOURCE
CATEGORY
PESTICIDES
40 CFR
PART NUMBER
SUBCATEGORY
S Pesticides
S Pesticides
(Proposed)
S Test Methods
for Non-
conventional
Pesticides
Chemical
Analysis of
Industrial &
Municipal
wastewater
EPA PUBLICATION
DOCUMENT NUMBER
S Pesticides
(Final)
PB86-150042/XAB
PETROLEUM
REFINING
S Petroleum
Refining
S Petroleum
Refining
(Proposed)
S Petroleum
Refining
(Final)
S Transcript for
Public Hearing
for Petroleum
Refining (April
9, 1980)
EPA 440/1-74/014-a
PB238612/6
PB81-118413
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EXHIBIT 3-1 (Continued)
CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS I/
SOURCES OF AVAILABILITY
INDUSTRIAL
POINT SOURCE
CATEGORY
PHARMACEUTICALS
40 CFR
PART NUMBER
PHOSPHATE
MANUFACTURING
SUBCATEGORY
Phosphorus
Derived
Chemicals
Other Non-
Fertilizer
Chemicals
EPA PUBLICATION
DOCUMENT NUMBER
PB241018/1
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EXHIBIT 3-1 (Continued)
CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS I/
SOURCES OF AVAILABILITY
INDUSTRIAL
POINT SOURCE
CATEGORY
PLASTIC &
SYNTHETIC
FIBERS
(MATERIALS) &
ORGANIC
CHEMICALS
MANUFACTURING
40 CFR
PART NUMBER
416
& 414
S Synthetic
Resins
S Synthetic
Polymers
(Proposed)
EPA PUBLICATION
DOCUMENT NUMBER
NTIS ACCESSION
NUMBER
EPA 440/1-83/009-b
Vol. I
Vol. II
Vol. Ill
PB83-205625
PB83-205633
PB83-205641
PB83-205658
Set of Vol's I
thru III
Selected
Summary or
Information in
Support of
Organic
Chemicals,
Plastic &
Synthetic
Fibers (July
1985)
Guidance Manual
for
Implementing
PORCELAIN
ENAMELING
Porcelain
Enameling
(Proposed)
Porcelain
Enameling
(Final)
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EXHIBIT 3-1 (Continued)
CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS I/
SOURCES OF AVAILABILITY
INDUSTRIAL
POINT SOURCE 40 CFR EPA PUBLICATION
CATEGORY PART NUMBER SUBCATEGORY DOCUMENT NUMBER
POTWs/ S Fate of EPA 440/1-82/303
POLLUTANTS:— Priority Vol. I
Priority Pollutants in Vol. II
Pollutants in Publicly Owned
Publicly Owned Treatment
Treatment Works Works (vol. I
& II)
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EXHIBIT 3-1 (Continued)
CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS I/
SOURCES OF AVAILABILITY
INDUSTRIAL
POINT SOURCE
CATEGORY
PULP, PAPER AND
PAPERBOARD
40 CFR
PART NUMBER
SUBCATEGORY
S Unbleached
Kraft and
Semi-chemical
Pulp
EPA PUBLICATION
DOCUMENT NUMBER
S Pulp & Paper
and Paperboard
and Builders'
Paper and
Board Mills
(Proposed)
S Pulp, Paper &
Paperboard and
Builders'
Paper & Board
Mills (Final)
Control of
Polychlori-
nated
Biphenyls in
the Deink
Subcategory of
Pulp, Paper &
Paperboard
(Oct. 1982)
RUBBER
PROCESSING
S Tire &
Synthetic
EPA 440/1-74/030-a
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EXHIBIT 3-1 (Continued)
CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS I/
SOURCES OF AVAILABILITY
INDUSTRIAL
POINT SOURCE
CATEGORY
SOAPS &
DETERGENTS
STEAM ELECTRIC
POWERPLANTS
SUGAR PROCESSING
TEXTILE MILLS
MANUFACTURING
PROCESSING
GPO
40 CFR EPA PUBLICATION NTIS ACCESSION STOCK
PART NUMBER SUBCATEGORY DOCUMENT NUMBER NUMBER NUMBER EPA
417 S Soaps & EPA 440/1-74/018-a PB238613/4 5501-00867
Detergents
421 S Steam Electric EPA 440/1-74/029-a PB240853/2 5501-01001
Power
Generating
(Proposed)
409 S Beet Sugar EPA 440/1-74/002-D PB238462/6 5501-0011/
(Final)
S Cane Sugar EPA 440/1-74/002-c PB23814/3 5501/00826
Refining
(Interim Final)
410 S Textile Mills EPA 440/1-74/022-a PB238832/AS 5501-00903
(Final)
and Fixtures
Processing
(Proposed)
S Timber Products
Processing
(Final)
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CHAPTER 4
GUIDANCE FOR COMPLIANCE WITH REQUIREMENT
OF THE SAFE DRINKING WATER ACT
4.0 INTRODUCTION
This chapter addresses CERCLA compliance with Safe Drinking Water Act (SDWA)
applicable or relevant and appropriate requirements (ARARs) in remedial actions.1 It
is organized into two sections:
Section 4.1 provides a general overview of the provisions of the SDWA
and how they are implemented; and
" Section 4.2 presents a summary of SDWA ARARs for CERCLA actions
including drinking water standards, underground injection control,
sole source aquifer, and wellhead protection program requirements.
4.1 OVERVIEW OF THE SAFE DRINKING WATER ACT
The Safe Drinking Water Act (SDWA),2 initially enacted in 1974 and most
recently amended in 1986, mandates EPA to establish regulations to protect human
health from contaminants in drinking water. The legislation authorizes national
drinking water standards and a joint Federal-State system for assuring compliance
with those standards. Maximum contaminant levels and treatment techniques ensure the
quality of public drinking water supplies. This section provides an overview of the
treatment and pollution prevention requirements imposed by the SDWA that may
potentially affect the selection, design, and implementation of CERCLA response
activities.
The establishment of national drinking water standards is authorized under
Title XIV, Part B of the SDWA. EPA has developed two sets of drinking water
standards, referred to as primary and secondary standards, to protect human health
and ensure the aesthetic quality of drinking water respectively. Primary standards
consist of contaminant-specific standards, known as Maxim Contaminant Levels (MCLs).
MCLs are set as close as feasible to Maximum Contaminant Level Goals (MCLGs), which
are purely health-based goals. Secondary
1 The requirements of CERCLA §121 generally apply as a matter of law only to
remedial actions. However, as a matter of policy, EPA will attain ARARs to the
greatest extent practicable considering the exigencies of the situation at the site
when carrying out removal actions.
2 42 USC §300f, et sea., as amended (in 1976, 1977, 1979, 1980, 1984, and
1986) .
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4-2
drinking water standards consist primarily of limits used by States to regulate the
aesthetic quality of water supplies, and are not enforceable at the Federal level.
Part C of Title XIV of the SDWA authorizes the establishment of a permit
program and two resource planning programs designed to prevent contamination of
underground sources of drinking water. Those three programs are: the Underground
Injection Control (UIC) permit program, the Sole Source Aquifer program, and the
Wellhead Protection program.
Owners and operators of certain classes of underground injection wells must,
obtain permits or be authorized by rule under the UIC program in order to operate
the wells. The permit applicant must prove to the State or Federal permitting
authority that the underground injection will not endanger drinking water sources.
An aquifer that is identified as the solo or principal source of drinking
water source for an area may be designated as a "sole source aquifer" under Section
1424(e) of the SDWA. No commitment of Federal financial assistance may be made for
any project that may contaminate a sole source aquifer so as to create a significant
public health hazard.
The 1986 amendments to the SDWA established a Wellhead Protection program
(WHP) that the States may use to protect public drinking wells and springs,
"...within their jurisdiction from contaminants which may have any adverse effects
on the health of persons." EPA issued guidance on the procedures for determining
WHP areas in June 1987. States have the option of using this guidance. Guidance was
issued an June 19, 1987 and notice was published in the Federal Register.
4.2 SUMMARY OF SDWA ARARs FOR CERCLA ACTIONS
Under the SDWA, EPA has developed the following programs:
" Drinking water standards;
Underground Injection Control program; and
Sole-source Aquifer and Wellhead Protection programs.
In each of these areas, EPA has promulgated regulations that could be
potential ARARs or developed guidance that could be considered for CERCLA actions.
The following subsections discuss these potential ARARs in greater detail. (Chapter
1, Exhibit 1-1 of this guidance presents a summary of potential SDWA ARARs in each
of these areas and the appropriate CFR citations.)
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4-3
4.2.1 DRINKING WATER STANDARDS
EPA has promulgated drinking water regulations designed to protect human
health from the potential adverse effects of drinking water contaminants. These
drinking water regulations generally apply to community water systems, which are
public water systems having at least 15 service connections or serving an average of
at least 25 year-round residents.3 The drinking water standards and regulations
promulgated in July 1987 for eight synthetic organic chemicals (52 FR
25690, July 8, 1987) also apply to a new category of suppliers referred to as
non-transient, non-community systems.4 These systems are those that regularly serve
at least 25 of the same persons over 6 months per year (e.g., rural schools).
Use of MCLs/MCLGs/SMCLs
Primary drinking water regulations include MCLs for specific contaminants.
MCLs are enforceable standards which apply to specified contaminants which EPA has
determined have an adverse effect on human health. MCLs are set at levels that are
protective of human health, and are set as close to MCLGs5 as is feasible taking
into account available treatment technologies and the costs to large public water
systems. MCLGs, in contrast, are strictly health-based and do not take cost or
feasibility into account. As health goals, MCLGs are established at levels at which
no known or anticipated adverse effects on the health of persons occur and which
allow an adequate margin of safety. To date, MCLs have been promulgated for 30
specific chemicals (10 inorganics, 14 organic chemicals including pesticides, and
total trihalomethanes, certain radio-nuclides, coliform bacteria, and turbidity).
The SDWA amendments of 1986 require EPA to promulgate MCLs for 83 specific
contaminants (including reproposal of the earlier-promulgated 30 contaminants with
the exception of silver and total trihalomethanes) by June 1989. A list of these 83
contaminants and their promulgation schedule is provided in Exhibit 4-2. MCLGs have
been published for 8 organic contaminants and for fluoride. A list of current MCLs
and MCLGs is presented in Exhibit 1-1. MCLGs have been proposed for 40 additional
organic and inorganic contaminants. A list of currently proposed MCLGs is presented
in Exhibit 4-1.
3 Certain drinking water standards also apply to non-community water systems.
These include standards for nitrate, turbidity, and microbiological concentrations
(40 CFR §141.11, 40 CFR §141.13, and 40 CFR §141.14 respectively).
4 EPA plans to continue to extend its drinking water regulations to non-
transient, non-community systems.
5 Recommended maximum contaminant levels (RMCLs) were renamed maximum
contaminant level goals (MCLGs) by the 1986 Amendments to the Safe Drinking Water
Act.
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EXHIBIT 4-1
Proposed Maximum Contaminant Level Goals (MCLGs)
Under the Safe Drinking Water Act a./
(1985)
CHEMICAL
PROPOSED
MCLGs (mg/l)b/
Acrylamide
Alachlor
Aldicarb
Aldicarb sulfoxide
Aldicarb sulfone
Arsenic
Asbestos
Barium
Cadmium
Carbofuran
Chlordane
Chromium
Copper
Dibromochloropropane
o-Dichlorobenzene
1,2-cis-Dichloroethylene
1, 2-trans-Dichloroethylene
1,2-Dichloropropane
2,4-D
Epichlorohydrin
Ethylbenzene
Ethylene dibromide (EDB)
Heptachlor
Heptachlor epoxide
Lead
Lindane
Mercury
Methoxychlor
Monochlorobenzene
Nitrate
Nitrite
Polychlorinated biphenyls
Pentachlorophenol
Selenium
Styrene
Tetrachloroethylene
0
0
0.009
0.009
0.009
0.05
7.1 c/
1.5
0.005
0.036
0
0.12
1.3
0
0
0.07
0.07
0.006
0.07
0
0.68
0
0
0
0.02
0.0002
0.003
0.34
0.06
1 0
1
0
0.22
0.045
0.14
0
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EXHIBIT 4-1
(Continued)
Proposed Maximum Contaminant Level Goals (MCLGs)
Under the Safe Drinking Water Act
(1985)
PROPOSED
CHEMICAL
MCLGS (mg/1) a/
Toluene 2
Toxapheno 0
2,4,5-TP 0.052
Xylene 0.44
a./ A list of final MCLs and MCLGs is presented in Exhibit 1-1. There are
currently no proposed MCLs.
b/ MCLG - Maximum contaminant level goal; proposed values taken from 50 FR
46936 (November 13, 1985). EPA will repropose those MCLGs with the proposal of MCLs
for these chemicals. This proposal is expected in May/June 1988.
c/ Million fibers per liter >10q in length.
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EXHIBIT 4-2
List of 83 Contaminants for Which MCLs Must Be
Promulgated by June 1989
9 MCLs Currently Final
Benzene
Carbon Tetrachloride
p- Dichlorobenzene
1,2-Dichloroethane
1,1-Dichloroethylene
Flouride
40 Contaminants Mandated for MCL Promulgation by June 19886
Acrylamide
Aldicarb
Alachlor
*Arsenic
Asbestos
*Barium
*Cadmium
Carbofuran
Chlordane
Chloroenzene
*Chromium
*Coliform Bacteria
Copper
Dibromochloropropane
(DBCP)
o-Dichlorobenzene
cis-1,2, Dichloro-
ethylene
trans- 1,2, Dichloro
ethylene
* 2,4- Di chlorophenoxy
acetic Acid (2,4-D)
1-2, Dichloropropane
Epichlorohydrin
Ethyl Benzene
Ethylene Dibromide
Giardia Lamblia
Heptachlor
Heptachlor Epoxide
*Lead
34 Contaminants Mandated for MCL Promulgation by June 1989
Adipates
Aldicarb Sulfone
Aldicarb Sulfoxide
Antimony
Atrazine
Beryllium
*Beta Particle - Photon
Radioactivity
Cyanide
Dalapon
Dinoseb
Diquat
* 19 MCLs to be reproposed
*Endrin
Endothall
Glyphosate
*Gross alpha particle
activity
Hexachlorocyclopentadiene
Legionella
Methylene Chloride
Nickel
PAHs
Phthalates
Pichloram
1,1,1-Trichloromethane
Trichloroethylene
Vinyl Chloride
*Lindane
*Mercury
*Methoxychlor
*Nitrate
PCBs
Pentachlorophenol
*Selenium
*2,4,5- TP Silvex
Styrene
Toluene
*Toxaphene
*Turbidity
Viruses
Xylene
*Radium 226 and 228
Radon
Simazine
Standard Plate Count
Sulfate
2,3,7,8 - TCDD (Dioxin)
Tetrahlorobenzine
Thallium
Trichlorobenzine
1,1,2 - Trichloromethane
Uranium
Vydate
6 At the time of this manual's publication, no MCLs for these contaminants had
been proposed or promulgated under the SDWA amendments of 1986.
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EXHIBIT 4-3
Secondary Maximum Contaminant Levels (SMCLs)
Under the Safe Drinking Water Act
(1985)
CONTAMINANT
LEVEL
Chloride
Color
Copper
Corrosivity
Fluoride
Foaming agents
Iron
Manganese
Odor
PH
Sulfate
Total dissolved solids (TDS)
Zinc
250 mg/1
15 color units
1 mg/1
Noncorrosive
2.0 mg/1
.5 mg/1
.3 mg/1
.05 mg/1
3 threshold odor number
6.5-8.5
250 mg/1
500 mg/1
5 mg/1
Source:
40 CFR §143.3.
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For water that is to be used for drinking, the MCLs set under the Safe
Drinking Water Act are generally the applicable or relevant and appropriate
standard. MCLs are applicable where the water will be provided directly to 25 or
more people or will be supplied to 15 or more service connections. If MCLs are
applicable, they are applied at the tap. In addition, MCLs are relevant and
appropriate as in situ cleanup standards where either surface water or ground water
is or may be used for drinking water. When no promulgated standard exists for a
given contaminant, proposed MCLs are to be given greater consideration among the
to-be-considered advisories.
A standard for drinking water more stringent than an MCL may be needed in
special circumstances, such as where multiple contaminants in groundwater or
multiple pathways of exposure present extraordinary risks (i.e., above an individual
lifetime cancer risk of 10~4). In setting a level more stringent than the MCL in
such cases, a site-specific determination should be made by considering MCLGs, the
Agency's policy on the use of appropriate risk ranges for carcinogens, levels of
quantification, and other pertinent guidelines. Prior consultation with Headquarters
contacts in the Office of Emergency and Remedial Response or the Office of Waste
Programs Enforcement, as appropriate, is encouraged in such cases.
The responsibility for enforcing primary drinking water regulations resides
with the appropriate State government agency in those States where EPA has granted
the State primary enforcement authority or with EPA in the two States that do not
have primary enforcement (Indiana and Wyoming). Suppliers of water may be assessed
criminal or civil penalties for violations of primary drinking water regulations.1
In addition, suppliers are required to notify the public regarding violations of
primary drinking water standards.
Secondary drinking water regulations consist primarily of Secondary Maximum
Contaminant Levels (SMCLs) for specific contaminants or water characteristics that
may affect the aesthetic qualities of drinking water (i.e., color, odor, and taste).
SMCLs are nonenforceable limits intended as guidelines for use by States in
regulating water supplies. SMCLs apply to public water systems and are measured at
the tap of the user of the system. A list of existing SMCLs is presented in Exhibit
4-3. For States that have adopted SMCLs as additional drinking water standards,
SMCLs are potential State ARARs, depending on site conditions.
Variances and Exemptions2
Public water suppliers may also obtain variances or exemptions from complying
with primary MCLs if certain criteria are met. Detailed procedures for applying for
a variance or exemption are described in the regulations.7 Granting of an exemption
or variance is contingent upon demonstrating that noncompliance will not result in
an unreasonable risk to human health.
40 CFR §142.40 and 40 CFR §142.50 respectively.
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In general, variances are granted only to water supply systems in which the
characteristic of the existing raw water sources precludes attainment of MCLs, even
with the application of best available technology. Variances must include compliance
schedules, which are determined by State water offices. Exemptions are typically
granted in situations where, due to compelling factors (which may include economic
factors), a public water system is unable to comply with the primary MGLs. As with
variances, exemptions must include a schedule for eventual compliance with the
primary drinking water regulations. The distinction between the two is that
exemptions may only be given to a public water system that was in operation on the
effective date of any MCL or treatment technique requirement. Variances may only be
granted to public water systems that have installed best available technology,
treatment techniques, or other means that EPA finds are available. The final date
for compliance provided in any schedule in the case of any exemption may be extended
to a maximum period of three years from the date of the exemption (except for
systems serving fewer than 500 service connections).
In addition, at CERCLA sites that are causing the public water supplies in the
area to violate SDWA standards, the RPM should work closely with the water suppliers
in developing remedial options and, if necessary, in assisting the water suppliers
in obtaining temporary variances or exemptions if appropriate. However, the RPM
should first coordinate this activity with the Regional drinking water program.
4.2.2 UNDERGROUND INJECTION CONTROL (UIC) PROGRAM
Overview
Underground injection wells are divided into five general classes of wells for
permitting and regulatory purposes.8 The applicable UIC technical and procedural
standards and criteria vary according to the class of well. The five classes of
wells are:
Class I wells are those used to inject industrial, hazardous and
municipal wastes beneath the lower most formation containing,
within one-quarter (1/4) mile of the well bore, an underground
drinking water source.9
8 According to 40 CFR §144.3, a well is defined as a bored, drilled or
driven, shaftor a dug hole, whose depth is greater than the largest surface
dimension.
9 According to 40 CFR §146.3, an underground source of drinking water
is defined as any aquifer or its portion that (1) supplies any public water
supply or contains a sufficient quantity of water to supply a public
water, and currently supplies drinking water for human consumption
or contains fewer than 10,000 mg/1 total dissolved solids, and
(2) is not an exempted aquifer according to 40 CFR §146.4.
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Class II wells are used to dispose of fluids which are
brought to the surface in connection with oil and gas
production, to inject fluids for the enhanced recovery of
oil or gas, or to store liquid hydrocarbons.
Class III wells are those used to inject fluids for the
extraction of minerals.
Class IV wells are used to inject hazardous waste or
radioactive waste into or above a formation that, within
one-quarter (1/4) mile of the well, contains an
underground drinking water source. Operation or
construction of Class IV wells is prohibited and allowed
only for the reinjection of treated wastes as part of a
CERCLA or RCRA cleanup action.
" Class V wells include all wells not incorporated in
Classes I-IV. Typical examples of such wells are recharge
wells, septic system wells, and shallow industrial
(non-hazardous) disposal wells,
Of the five classes of wells, Class I, Class IV, and Class V wells are the
classes most likely to be associated with CERCLA actions For Class I and Class IV
wells, the injection of hazardous wastes is involved.10 An abandoned or failed
Class I or Class IV injection well facility could be the site of CERCLA action.
In addition, UIC requirements may be ARARs for CERCLA remedial actions involving
the reinjection of treated ground water. Class II and Class III wells are
unlikely to be associated with CERCLA actions and are not discussed further in
this section. The Agency is in the process of developing standards applicable to
Class V wells. However, a CERCLA site cleanup could involve reinjection of
wastewater that is not defined as hazardous (i.e., the wastewater does not meet
the definition of hazardous waste) to a Class V well.
Two important distinctions between Class I and Class IV wells are the
location and existing quality of the aquifer above, into, or below which wastes
will or are being injected. Class I wells are used for disposing hazardous waste
beneath the lowermost formation containing within one-quarter mile of the well,
an underground source of drinking water. Class IV wells are used for disposing
hazardous waste into or above a formation containing within one-quarter mile of
the well, an underground source of drinking water. However,
10 Hazardous waste in the UIC program means a hazardous waste as defined in 40
CPR §261.3. In summary, a hazardous waste is a solid waste that either exhibits
any hazardous characteristics (ignitability, corrosivity, reactivity, EP toxicity),
or that has been named hazardous and listed, and has not been excluded by
regulation (e.g., household wastes, domestic sewage, irrigation return flows,
mining overburden returned to site, and agricultural wastes).
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the operation or construction of Class IV wells is prohibited, and allowed only
where the wells are used to reinject treated ground water into the same formation
from which it was withdrawn as part of a CERCLA cleanup or a RCRA corrective
action (40 CFR §144.13). There are two clarifications regarding Class IV wells
contained in 40 CFR §144.13(d) that should also be noted:
" The injection of hazardous wastes into aquifers that have been
exempted pursuant to 40 CFR §146.4 (and are otherwise below the
lowermost underground source of drinking water) are considered
to be Class I wells, rather than Class IV wells, and subject to
Class I UIC regulations;11 and
" The injection of hazardous wastes where no underground source of
drinking water exists within one-quarter mile of the well,
provided that EPA or the authorized State determines that such
injection is isolated to ensure injected wastes do not migrate
from the injection zone, considered to be Class I wells rather
than Class IV wells, and subject to Class I UIC regulations.
The UIC program regulates underground injections into the five classes of
wells described above. Operation of these injection wells must be authorized by
permit or rule if the injection results in the movement of fluid containing any
contaminant into an underground source of drinking water, and if contaminants
present in injected fluids cause a violation of any primary drinking water
standard (see section 4.2.1) or adversely affect the health of persons.
Underground injection wells that are constructed off-site are subject to
all provisions of the SDWA relating to underground injection of fluids and must
be permitted by an authorized State agency or EPA and comply with the UIC permit
requirements. Superfund sites that construct underground injection wells on site
are not required to comply with the administrative requirements of the UIC
program, however they must meet the substantive requirements of this program
where the requirement is determined to be applicable or relevant and appropriate
to the CERCLA remedial action.
11 In general, an aquifer that is not currently used for drinking purposes,
and cannot be used for drinking water in the future due to insufficient yield or
excessive contamination, may be officially designated as an "exempted aquifer" by
EPA or an authorized State agency (subject to EPA approval). (40 CFR §146.4)
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4.2.2.1 Guidelines for Determining Substantive Requirements
The injection of hazardous wastes from CERCLA sites into wells constructed
both on-site and off-site must meet the substantive requirements of the UIC program
including general program requirements that apply to Class I, Class IV, and Class V
wells, and specific criteria and standards applicable only to Class I wells.
In general, no owner or operator may construct, operate, or maintain an
injection well in a manner that results in the contamination of an underground
source of drinking water at levels that violate MCLs or otherwise adversely affect
the health of persons (40 CFR §144.12). This requirement applies to all classes of
wells, including Class I, Class IV, and Class V wells.
There currently are no requirements for the injection into Class V wells.
However, if injection into a Class V well could cause the water in the receiving
underground source of drinking water to violate primary drinking water regulations,
then EPA or the authorized State agency could require the issuance of a permit that
could include the substantive requirements of the UIC program (40 CER §144.12(c)).
Such substantive requirements may be ARAR for on-site actions.
The Hazardous and Solid Wastes Amendments of 1984 include a provision banning
RCRA restricted wastes from land disposal unless the Agency promulgates specific
treatment levels for each waste based on the Best Demonstrated Available Technology
(BDAT) and in accordance with the statutory schedule.12 Thus far, the Agency has
promulgated treatment levels for certain solvent- and dioxin-containing wastes (40
CFR §268.40) and the "California list" prohibitions (40 CFR §268.32) were effective
in July 1987.
Until August 1988, solvents, dioxins, chlorophenols, and the "California list"
are exempt from these treatment standards only when they are disposed of via deep
well injection.13 This method of land disposal, however, will be banned after August
1988, if the Agency determines that this practice for these specified wastes is not
protective of human health and the environment, or the Agency fails to make such a
determination by August 1988.
Thus, CERCLA sites that involve the discharge of hazardous wastes into UIC
wells currently do not have to comply with BDAT treatment levels. However, beginning
August 1988, before RCRA restricted wastes can be disposed in a Class I well (as
part of an on-site or off-site activity), or contaminated ground water can be
reinjected into a Class IV well (as part of an on-site activity), the wastes or the
ground water must attain any treatment levels that may have been promulgated for
each constituent disposed in the injection well, or be
12 RCRA §§3004(d), (e), (g), (m), and (h).
13 RCRA §3004 (f) .
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subject to one of several variances provided for in 40 CFR Part 268 for each RCRA
listed waste present at the injection well.14
Class I wells are also required to obtain a RCRA permit-by-rule as a
condition for injecting hazardous waste. For any UIC permit issued to a Class I well
after November 8, 1984, RCRA permit-by-rule provisions require the owner/operator of
the well to comply with RCRA corrective action for releases from solid waste
management units (40 CPR §264.101). Therefore, a RCRA permit-by-rule issued after
November 8, 1984 must address any necessary corrective action not only for the
injection well, but for all solid waste management units at the facility. For any
UIC permit for Class I wells issued prior to November 8, 1984, RCRA corrective
action requirements for releases from solid waste management units will be addressed
upon permit reissuance.15
All owners and operators of underground injection wells are subject to UIC
closure requirements. These closure requirements include the preparation and
submission of a plugging and abandonment plan. For Class I wells, this plan has to
be submitted in accordance with the requirements provided in 40 CFR §144.28(c). For
Class IV wells, closure plan requirements are provided in 40 CFR §144.23(b).
Finally, owners and operators of Class I wells are subject to additional UIC
operating requirements including:
" Construction Requirements. Various requirements are specified
for the construction of Class I wells including the type of
casing and cementing for the well, appropriate geophysical well
logging and other test requirements, ect. (40 CFR §146.12) .
" Operating Requirements. The operation of Class I wells are
subject to specific operating requirements, including use of
approved fluids surrounding the outermost casing and
maintenance of injection pressure
14 The Agency is required to promulgate regulations for RCRA restricted
wastes in accordance with a statutory schedule. If the Agency fails to meet this
schedule, then certain wastes present at a CERCLA site may be banned from land
disposal.
15 The UIC program corrective action requirements (40 CFR §144.55) are
limited to repairing well defects to prevent releases from the well. The term
RCRA corrective action, as used in this context, is broader and requires control
to not only prevent releases from the well, but to also clean-up past releases
from the well. RCRA regulatory amendments have been proposed (51 FR 10706; March
28,1986) to clarify the corrective action requirements for hazardous waste
injection wells.
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(40 CFR §§144.28(f) and 146.13).
" Monitoring Requirements. At a minimum, monitoring requirements
for Class I wells include analysis of the injected fluids;
installation and use of continuous recording devices to monitor
injection pressure, flow rate and volume, and pressure on the
annulus; demonstration of mechanical integrity (in accordance
with 40 CFR §146.8) at least every 5 years; and use of
monitoring wells in the area of review16 to monitor migration of
fluids into, and pressure in, underground sources of drinking
water (40 CFR §146.13 (b)). As part of the suggested
coordination between CERCLA RPMs and UIC program (EPA Regional
and/or State) personnel, monitoring results should be provided
to the appropriate UIC program office.
4.2.2.2 Administrative Requirements of the UIC Program
The UIC program establishes administrative requirements that must be complied
with prior to and after UIC permit issuance or authorization by rule. The
requirements would not be considered ARARs for on-site injection of wastes because
they are procedural or administrative in nature. However, they would be requirements
to be complied with for off-site injection of wastes into wells. These
administrative requirements include:
" Application Requirements. All existing and now underground injection wells
must apply for a permit unless an existing wall is authorized by rule for
the life of the well (40 CFR §144.31). For new wells, this application must
be submitted to EPA or an approved State within a reasonable time prior to
construction of the well. For existing Class I and Class IV wells, this
application must be submitted within six months after the approval or
promulgation of a State UIC program, or to EPA as expeditiously as
practicable (but no later than 1 year and 4 years after the effective date
of the UIC program for Class I wells and Class IV wells, respectively) .17
16 According to 40 CFR §146.6, the area of review for an injection well can be
defined as either the zone of endangering influence or a fixed radius around the
well.
17 Specific UIC application requirements are contained in 40 §144.31 (e) .
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" Inventory and Other Information Requirements. Existing
underground injection wells that are authorized by rule are
required to submit inventory information to EPA or are approved
State (40 CFR §144.26). This inventory must be submitted no
later than 1 year after the approval or promulgation of a State
UIC program, or to EPA no later than 60 days after the
effective date of the UIC program Class IV wells only). Owners
and operators of class I wells do not need to submit inventory
information to EPA if a permit application (as described above)
is submitted within one year of the effective he program.
Further, for EPA administered program only, other additional
information may be submitted that is necessary to determine
whether a well is endangering an underground source of drinking
water(40 CFR §144.27).
Consistent with the suggested CERCLA/UIC Office Coordination
described in a section 4.2.2.3 below, RPMs should provide
inventory information (for both on-site and off-site injection
wells) for input to the Federal Underground Reporting System
(FURS). The FURS is a computerized data base that tracks
inventory information for the UIC Program.
" Reporting Requirements. The UIC program requires owners and
operators of Class I wells to maintain records and report
quarterly on the characteristics of injection fluids and,
ground-water monitoring wells (if required) and various
operating parameters (e.g., injection pressure flow rate, etc.)
(40 CFR §146.13(c)). In addition, Class I well authorized by
rule are required to report orally with 24 hour any
noncompliance that may endanger health or the environment (40
CFR §144.28(b)). There are no reporting requirements for Class
IV wells under the UIC program.
4.2.2.3 Coordination Between CERCLA Program and UIC Office
Before developing or considering remedial options that involve the use of
underground injection wells, CERCLA RPMs should contact the appropriate State or EPA
Regional office responsible for administering the UIC program to ensure compliance
with substantive requirements (on-site and off-site) and all administrative,
requirements (off-site). RPMs should also contact appropriate State or EPA, Regional
office personnel responsible for issuing permits under RCRA, to ensure that any UIC
well that requires a RCRA permit-by-rule is in compliance with RCRA corrective
action requirements.
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4.2.3 SOLE SOURCE AQUIFER (SSA) PROGRAM
Designation of SSAs and Review of Federally Financed Projects
The SDWA permits EPA to designate aquifers that are the sole or principal
drinking water source for an area and which, if contaminated, would present a
significant hazard to human health, as "sole source aquifers." Under the Sole Source
Aquifer program, Federal financial assistance may not be committed for any project
that may contaminate a sole source aquifer so as to create a significant public
health hazard. Federal financial assistant to design the project to avoid
contamination of the aquifer.18
In general, projects that could be subject to review under the Sole Source
Aquifer (SSA) program include highway or building construction projects, either of
which could have potentially detrimental effects on public health and the
surrounding environment. As a general matter CERCLA activities would not in and of
themselves increase preexisting contamination of sole source aquifers. Therefore, it
is unlikely that CERCLA activities would be subject to restrictions on Federal
financial assistance. Nonetheless, a review of any potential problems associated
with sole source aquifers should be part of the RI/FS process.
Demonstration Program
The 1986 amendments to the SDWA also established procedures for the
development, implementation, and assessment of demonstration programs designed to
protect critical aquifer protection areas in sole source aquifers. The primary
component of a SSA Demonstration Program is the development of a comprehensive
management plan to maintain the quality of ground water in critical protection
areas. The specific components of a protection plan must include several elements,
including designation of the specific actions and management practices to be
implemented to prevent adverse impacts on ground water quality. Any State, municipal
or local government, or political subdivision, or planning entity, that identifies a
critical aquifer protection area over which it has authority may apply to EPA for,
selection of such area for a demonstration program.
18 Following SDWA §1424 (e), EPA issued guidance, in February 1987, on the sole
source aquifer process entitled "sole Source Aquifer Designation Petitioner
Guidance." For purposes of the Edward Underground Aquifer, the sole source aquifer
in San Antonio, Federal financial assistance is defined in 40 CFR §149.2 in part "as
any financial benefits provided directly as aid to a project by a department,
agency, or instrumentality of the Federal government in any form including
contracts, grants, and loan guarantees."
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4.2.4 WELLHEAD PROTECTION PROGRAM
One provision in the SDWA amendments of 1986 directs States to develop and
implement programs to protect wells and recharge areas that supply public drinking
water systems from contaminants that flow into the well from the surface and
sub-surface. The Agency is responsible for publishing guidance to assist the States
in preparing their wellhead protection programs. The Office of Ground-Water
Protection issued this guidance in June, 1987.19 The statute require's States to
adopt and submit program plans within 3 years of enactment of the SDWA amendments.
EPA is charged with reviewing these programs and ensuring that they comply with the
requirements outlined under SDWA, including identifying all potential anthropogenic
sources of contaminants, outlining programs for protecting wells from such
contaminants, and describing contingency plans for replacing wells affected by
contaminants. Finally, EPA is authorized to make grants to assist in the development
and implementation of the State programs.
Because the Wellhead Protection program is designed to be run by the States,
the program will involve no Federal ARAR provisions. Nonetheless, State wellhead
protection programs may impose requirements with which a Federal agency must comply,
unless specifically exempted by the President.20 Thus, there may be ARARs under the
State wellhead protection programs with which CERCLA response actions must comply.
For example, a State program may contain requirements for protecting a municipal
water source or replacing it if contaminated. RPMs should be alert to State programs
an they develop over the next several years. It is suggested that RPMs coordinate
with Regional drinking water program personnel assigned to the Wellhead Protection
program. Regional personnel will be familiar with the progress of State programs,
and can assist in the beginning of a CERCLA response action to determine ARARs.
19 See Guidance For Application For State Wellhead Protection Program
Assistance Funds Under The Safe Drinking Water Act, EPA, (June 1987).
20 Section 1428(h) of SDWA requires that Federal agencies comply with both
substantive and procedural State program requirements. However, according to CERCLA
§121, on-site CERCLA actions need only comply with substantive program requirements.
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CHAPTER 5
GROUND-WATER PROTECTION POLICIES
5.0 OVERVIEW OF THE GROUND-WATER PROTECTION STRATEGY
The Environmental Protection Agency (EPA) is charged with the responsibility
to adopt and enforce policies and regulations to protect the nation's ground water
under several different statutes, including CERCLA, the Resource Conservation and
Recovery Act, the safe Drinking Water Act, the Clean Water Act, the Toxic Substances
Control Act, and the Federal Insecticide, Fungicide, and Rodenticide Act. In
response to the need to organize and coordinate the various programs that protect
ground water EPA issued its "Ground-Water Protection Strategy" in 1984. Although the
Strategy is not a promulgated requirement and therefore would not be a potential
ARAR for a Superfund site, it does list several policy statements to be considered
when developing a protective remedy. The Strategy outlined a number of specific
activities, including:
strengthening EPA's organization for ground-water
management and cooperation between Federal and State
Agencies;
" issuing guidelines on classifying ground water for EPA
decisions affecting ground-water protection and corrective
action; and
" assessing the problems thee may exist from unaddressed
sources of contamination.
The need to strengthen EPA's ground-water management led to the creation of the
Office of Ground-Water Protection (OGWP). In addition to coordinating the Agency's
Ground-Water Protection Strategy, OGWP is also administering programs mandated under
SDWA that are geared specifically toward ground-water protection, including the Sole
Source Aquifer (see section 4.2.3) and Wellhead Protection programs (see section
4.2.4) .
5 . 1 OGWP GROUND-WATER CLASSIFICATION GUIDELINE
To help achieve consistency among programs through appropriate guidance,
ground-water classification guidelines, based on the policy that different ground
waters merit different levels of protection, were developed under the Strategy.
Again, since the ground-water classification guidelines are not promulgated
regulations, they are not potential ARARs for a superfund site. Under the OGWP
Classification Guidelines,1 ground waters are classified in one of three
classification categories (I, II, or III), based upon ecological importance,
replaceability, and vulnerability considerations. Irreplaceable
1 In December 1986, EPA published the "Guidelines for Ground-Water Classification
under the EPA Ground-Water Protection Strategy" (final draft).
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ground water that is currently used by a substantial population or ground water that
supports an ecologically vital habitat is considered Class I. Class II ground water
consists of water that is currently being used or water that might be used as a
drinking water source in the future. Ground water that cannot be used for drinking
water due to insufficient quality (e.g., high salinity or widespread naturally
occurring contamination) or quantity is considered Class III.
5.2 SUPERFUND APPROACH TO GROUND-WATER RESTORATION
The Ground-Water Protection Strategy and the draft Classification Guidelines
emphasize the protection of ground-water resources, while the CERCLA policies
outlined in the "Draft Guidance on Remedial Actions for Contaminated Ground Water at
Superfund Sites," focus on the restoration of contaminated ground waters. Under
Superfund, ground waters are restored based in large part on their characteristics,
primarily: vulnerability, use, and value. The goal of the Superfund program's
approach is to return ground waters to their beneficial uses, e.g., restore current
or potential sources of drinking water to drinking water quality. The restoration
should be accomplished within a time frame that is reasonable given the particular
circumstances at a site. As necessary, current ground-water users may be provided
with an alternate source of drinking water or well-head treatment. In formulating a
ground-water cleanup approach, the following factors are analyzed.
" Determining the Characteristics of the Ground Water. Using
the Ground-Water Protection Strategy and the EPA Guidelines
for Ground-Water Classification as guides, a determination
is made as to whether the contaminated ground water falls
within Class I, II, or III. The classification methodology
assists, in the characterization of the ground-water's
vulnerability, use, and, value.2 In applying the
classification methodology to Superfund sites, additional
judgment should be exercised. For example:
2 Ground-water classifications performed at superfund sites are site-specific and
limited in scope to the Superfund remedial action that well be undertaken.
Classifications performed by EPA's Superfund program do not apply to that
geographical area in general nor to any other actions that may be undertaken under
any other State or Federal program, or private actions. The classification scheme
described above may be superseded by other classification scheme that may have been
promulgated by a State and are applicable or relevant and appropriate to the
superfund cleanup. This approach may also be modified by State ARARs that derive
from wellhead protection programs which may require protection of a municipal water
source, or replacement if that source is contaminated.
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The Superfund program may define a Classification Review Area that is
larger or smaller than the 2-mile radius specified in the proposed
guidelines based on a site-specific determination;
— The Superfund program may use methods other than the DRASTIC3 model
for predicting aquifer vulnerability to contamination;
In establishing the aquifer characteristics, the Superfund program
would always consider factors other than yield in determining that an
aquifer is unusable; and
The Superfund program may initiate investigations of other sources
when background levels of contamination exist rather than treating
the aquifer as Class III.
Additional modifications of the specific criteria established in the
classification guidelines may be warranted when site specific investigations
reveal factors that the guidelines do not address.
N Identifying ARARs and Establishing Cleanup Goals. MCLs are the probable
relevant and appropriate Federal standards for aquifers with Class I and
Class II characteristics, i.e., irreplaceable, current or potential
drinking water sources.4 For aquifers with Class III characteristics, i.e.,
which cannot be used for drinking water because of high salinity or
widespread naturally occurring contamination, MCLs are neither applicable
nor relevant and appropriate. Further, consistent with Superfund site
compliance with RCRA ground-water protection standards, the use of
background levels will generally not be adopted by the Superfund program in
establishing remediation levels for
3 National Well Water Association "DRASTIC: A Standardized System for
Evaluating Ground Water Pollution Potential Using Hydrogeologic Settings",
EPA/600/2-85/018, May 1985.
4 EPA Class I ground waters include both those serving substantial populations
and those that are ecologically vital. Where ground waters are Class I due to being
ecologically vital, MCLs may not be stringent enough to protect the ecosystem. If
this is the case, then site-specific standards should be developed to address
protection of the ecosystem.
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Class III aquifers (see discussion presented in Chapter 2, section
2.7.4.2). While cleanup of aquifers with Class III characteristics is not
likely, in some cases source control or other measures (such as
point-of-use treatment) may be undertaken in order to prevent further
contamination or to mitigate risk from exposure. Also, the need for
environmental protection may determine the necessity and extent of
ground-water remediation for such aquifers.
Cleanup levels should be selected based on an evaluation of the information
developed during the risk assessment for the site.
If MCLs or more stringent State standards are not available or are not
sufficiently protective, Federal and State environmental and public health
criteria, advisories, guidance and proposed standards should be considered,
along with MCLGs for special circumstances (discussed on p. 4-6). The
to-be-considered (TBC) materials include: proposed MCLs, health advisories,
drinking water equivalent levels, or risk specific doses, and State health
advisories.
N Evaluation of Cleanup Alternatives. Alternatives should be developed that
meet the concentration goals, and also on the basis of the effectiveness,
implementability, and cost of each alternative.
Superfund's approach to ground-water cleanup calls for development of a
limited number of ground-water cleanup alternatives expressed in terms of a
remediation level (i.e., cleanup concentration in the ground water), a time
period for restoration to the preliminary remediation level for all
locations in the area of attainment, and the technology or approach that
will be used to achieve those goals.
In evaluating remedial technologies and other methodologies for
ground-water cleanup, technical and cost factors are of special importance.
The technical practicability of each alternative must be evaluated in light
of the contaminant characteristics and hydrogeological conditions which may
not allow effective implementation of the alternative to clean up the
ground water.
Complex fate and transport mechanisms of contaminated ground waters often
make it difficult to accurately
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predict the performance of the ground-water remedial action. Therefore, the
remedial process must be flexible and allow changes in the remedy based on
the performance of several years of operation. If the chosen remedial
action does not meet performance expectations after a period of operation,
the Superfund program has to decide the extent to which further or
different action is necessary and appropriate to protect human health and
the environment.
N State Ground-Water Protection Programs. In addition to the EPA policy for
ground-water classification and protection as outlined in the "Ground-Water
Protection Strategy", many States have also begun adopting protection
strategies and classification systems. In fact, the Strategy recognizes
that States have the principal role in ground-water protection. The May
1985 OGWP document, "Selected State and Territory Ground-Water
Classification Systems," outlines several State classification systems,
some of which are more strict (i.e., more protective of certain
ground-water resources) than the Federal system. For example, Wyoming has
promulgated a regulation that recognizes seven classes of ground water.
Consequently, a ground water that would be considered Class III under the
EPA program might be placed under a more protected classification under the
Wyoming program (e.g., "ground water suitable for industry"). If the State
has promulgated a particular cleanup level associated with the class
specifications that is more stringent than the Federal standards, then this
cleanup level would be ARAR.
In developing response options for Superfund sites that include
contaminated ground water, the CERCLA RPM should contact the appropriate
State or EPA Regional Ground-Water Office to ensure identification and
compliance with State ARARs and consideration of State ground-water
programs.
19. Criminal and civil penalties can be assessed only by States. EPA may only
commence civil actions for violations of primary drinking water regulations.
20. Obtaining a variance or exemption requires a finding that an unreasonable risk
to human health will not result. The Office of Drinking Water is developing guidance
to define "unreasonable risk to human health."
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HYPOTHETICAL SCENARIO ILLUSTRATING HOW APPLICABLE
OR RELEVANT AND APPROPRIATE REQUIREMENTS ARE IDENTIFIED AND USED
The following hypothetical scenario illustrates the process of determining
whether particular requirements are applicable or relevant and appropriate the
actions to be taken at this hypothetical site. The purpose of this hypothetical
scenario is to provide an example of how certain site-specific conditions would be
analyzed, not to analyze fully all aspects of all ARARs for the site. Thus, only
some of the potential chemical-specific, location-specific, and action-specific
alternatives for the site are analyzed. The scenario has been designed to illustrate
ARARs from several different statutes, and currently provides examples of RCRA,
SDWA, and CWA requirements.
SITE CONDITIONS
The Flintstone site is a 9-acre abandoned hazardous waste disposal area. The
site was used as a sand and gravel pit until the early 1970s. The pit was then used
for the indiscriminate illegal dumping of household refuse, chemical sludges,
construction debris, and hazardous liquids. Diagram 1 provides details of the site
surroundings.
Disposal methods for the liquid material and sludges included:
N Discharge of the sludge-like material directly into pits at the
site;
N Abandonment of over 2,000 drums of various types of chemical waste on the
surface of the site;
N Dumping/burial of drummed materials in shallow trenches in the area;
and
N Pouring of the contents of the drums directly onto the surface.
Solid wastes (refuse, tires, trash, empty drums, and construction debris)
cover approximately 6 acres of 9-acre-site to an average depth of 10 feet. The depth
of the fill materials ranges from 4 to 13 feet, in some areas extending below the
water table, and includes an estimated 19,000 cubic yards of contaminated material.
Areas of contaminated soil or "hot spots" outside of the waste pits resulted from
flooding and overtopping of the pits during heavy rainfall and seasonal fluctuations
in the ground-water level. One of the "hot spots" contains a number of discarded
drums. Approximately 4,000 cubic yards of contaminated materials similar to those
disposed of at the site were also dumped in a 1-acre wetlands area southwest of the
gravel pit. This unauthorized fill may be subject to enforcement under the Clean
Water Act, and mitigation could be required (under CWA §404 and related regulations
as
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Diagram 1
Flintstones's Site Surroundings
LEGEND
D PttvMe Welts
— Proposed Expansion
CONTAMINATED
GROUND-WATER
now
COMMUNITY
TOM'S TRAILER
PARK
1.0 ACRE
CONTAMINATED
WETLAND
PICNIC
AREA
• NOT TO SCALE
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relevant and appropriate to the CERCLA action -- see p. 3-30) -1 Finally, PCB-
contaminated oils were sprayed along Route 2 and the dirt access road leading to the
site.
Ground water passing under the site flows southeast toward the Lamb
River. The contaminant plume leaves the site and spreads diffusely due to the
fractured bedrock underlying the site. Contamination of the aquifer is increased by
pumping of wells in the local area, causing elevated levels of contaminants to be
drawn into the aquifer. Ground-water flow in the aquifer is 50 ft/yr.
Contaminants entering the ground water from the main site will reach the
Lamb River after 10 to 12 years, with the contaminant plume reaching a steady
state condition in approximately 16 years. The levels of observed on-site
soil contamination are sufficient to act as a source of continuing ground-water
contamination for several years if remedial actions are not initiated. Ground water,
sampled at test wells 1,000 feet downgradient of the site, is contaminated with
methylene chloride, trichloroethylene (TCE), benzene, cadmium, chromium, and lead.
The area surrounding the Flintstone site is primarily residential. The closest
residence are within 600 feet of the southern perimeter of the site. Drinking water
wells at several private residences located near the site are contaminated.
Residents of these homes are currently being supplied bottled water.
IDENTIFICATION AND ANALYSIS OF CHEMICAL-SPECIFIC REQUIREMENTS
During the scoping of the RI/FS, chemical-specific requirements for the site
are initially identified.2 For chemicals, this is done by comparing the chemicals
identified at the site with the list of chemical-specific ARARs in Exhibit 1-1 of
Chapter 1 of this manual. The following table summarizes the data on chemicals found
on the site:
1 The 1-acre area represents the extent of the wetland as verified by Regional
dredge and fill program personnel. The areas outside of the waste pits which have
been subject to flooding and high ground-water tables have been determined not to be
wetlands.
2 Identification of chemical-specific ARARs should be modified and revised as
necessary throughout the RI/FS. Note too that design changes or respecifications may
result in further refinement of all types of ARARs.
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Summary of Data on Chemicals Found on Site
Waste Concentration Media Affected
Volatile Organic Solvents
trichloroethylene (TCE) 22ppb-43ppb Ground water
methylene chloride 60 ppm Ground water
benzene 200 ppb Ground water
Metals
cadmium, chromium, lead >.05ppm Ground water
In identifying potential ARARs for these chemicals, the following procedure
would be used (Note that this example works through the procedure for only one of
the chemicals listed above.)
Identification of Chemical-specific ARARs
First, consult Exhibit 1-1 in Chapter 1 to determine if a chemical-specific
standard or standards have been established for the chemicals. The chemical-specific
standards for one of the chemicals in this example, trichloroethylene, are listed
below, as taken from Exhibit 1-1.
Chemical-Specific Standards for Trichloroethvlene
SDWA MCL 5.0 x 10-03 mg/1
CWA Ambient Water Quality Criteria
Aquatic Life (Freshwater Acute) 4.5 x 10+01 mg/1
Aquatic Life (Freshwater Chronic) 2.1 x 10+01 mg/1
Aquatic Life (Marine Acute) 2.0 mg/1
Human Health (Water and Fish
Ingestion) 2.7 x 10~03 mg/1
Human Health (Fish Ingestion
only) 8.1 x lQ-°2 mg/1
Exhibit 1-1 also contains a Maximum Contaminant Level Goal (MCLG) of 0 mg/1, which
should be considered in special circumstances, such an where multiple contaminants
are found in the ground water or where multiple pathways of exposure present
extraordinary risks (i.e., individual lifetime cancer risk above 10~4).
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Analysis of Chemical-specific ARARs
Determination of Applicability
Second, following the procedures in Exhibit 1-5 of Chapter 1, determine if any
of the listed chemical-specific standards fully address the particular site-specific
conditions and is applicable. In this case, the individual wells in the local
community are not public sources of drinking water. Therefore, the SDWA standards
would not be applicable.
Determination of Relevance and Appropriateness
Third, determine which of the standards, if any, address situations
sufficiently similar to the CERCLA site conditions that they should be treated as
probable relevant and appropriate requirements. As the Superfund program gains
further experience in identification of site-specific ARARs, the step by-step
analysis described here may be supplemented by policy decisions on the
relevance and appropriateness of some ARARs. For example, EPA has determined as a
matter of policy that MCLs will be relevant and appropriate for ground water or
surface water that currently is or may in the future be used directly
for drinking. (In these cases, the MCLs should be met in the surface water or
ground water itself.) The following analysis of the MCL for trichloroethylene
is included to explain the logic of this policy in terms of ARARs.
In this hypothetical situation, the ground-water flow is toward private wells.
Although the water under the site is not a current source of public drinking water,
and the wells do not belong to a public water system and thus do not meet the
jurisdictional prerequisites for the SDWA requirements, the water may be a potential
future source of drinking water. Because the contaminated ground water may be used
directly for drinking water in the future, the MCL for trichloroethylene should be
identified as a probable relevant and appropriate standard. Generally, use the
factors listed in Exhibit 1-7 to determine if the requirement is potentially
relevant at the site. If the requirement is relevant, focus on the purpose of the
requirement, the characteristics of the site and contamination, the character of the
release, the duration of the activity, and the basis for any waiver or exception to
determine if the requirement is appropriate. With respect to the SDWA MCL for
trichloroethylene, for example, the following factors would be considered:
SDWA Requirement Problem at CERCLA Site
Objective: Provide safe drinking Contamination of drinking water
water source
Purpose: Avert TCE contamination Avert TCE contamination
Media: Ground water Ground water
Substance: Trichloroethylene Trichloroethylene
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Parties: Public drinking water Private drinking water wells
system
Activity: Provision of water Cleanup of contamination
Variances: None Not relevant
Place: Drinking water tap Aquifer
Facility: Public drinking water Uncontrolled waste site
source
Use of
Resource: Human consumption Human consumption/
other uses not specified
Based on this comparison, the CERCLA situation appears to be sufficiently
similar to the problem addressed by the SDWA requirement that the SDWA MCL for
trichloroethylene would be considered relevant. Considering (1) the purpose of the
requirement and the purpose of the CERCLA action (both are directed toward
protection of current and potential drinking water), (2) the substance covered by
the requirement (trichloroethylene) and (3) the fact that EPA has decided that MCLs
are appropriate for future drinking water, it can be judged that MCLs are both
relevant and appropriate.
Water Quality Criteria (WQC) more stringent than a SDWA MCL may be found
relevant and appropriate when there are environmental factors that are being
considered at a site, such as protection of aquatic organisms. In this hypothetical
situation, cleanup of the ground water under the waste pits will not be carried out
in order to protect aquatic wildlife in Flint Stream since the plume of contaminated
ground water will never reach the stream. Contaminated ground water is not currently
reaching the Lamb River, and is not expected to do so at a level that would
substantially harm aquatic life in the future. The WQCs for protection of aquatic
life therefore are not relevant and appropriate for the site. Water quality criteria
for protection of human health may be relevant and appropriate depending on the
likely route of exposure. However, if the potential for human exposure to
contaminants in the Lamb River existed, then WQC for protection of human health (for
fish consumption) should be considered, or if the wetlands area were contaminated
with TCE, and the cleanup goal was to make the water in the wetlands suitable for
aquatic life, it would be necessary to consider ambient water quality criteria and
State water quality standards. If such a State water quality standard were
established for protection of aquatic life, the standard would be applicable.
ARARs and Risk Assessment
Standards identified as potential ARARs, as well an TBCs, should be analyzed
according to the procedures outlined in the Superfund Public Health Evaluation
Manual. Guidelines or criteria found in the to-be-considered
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category should be used when ARARs do not exist for a particular chemical or when
the risk assessment indicates that existing ARARs are not sufficient to protect
human health or the environment.
A similar analysis should be conducted for each of the other potentially ARAR
chemical-specific standards.
IDENTIFICATION AND ANALYSIS OF LOCATION-SPECIFIC REQUIREMENTS
Identification and analysis of location-specific requirements should follow
the same general procedure as outlined above for chemical-specific requirements. The
locational characteristic of the site should be compared to the location-specific
requirements listed in Exhibit 1-2 in Chapter 1. In this case, a review of the
Flintstone site location reveals several characteristics that should be analyzed
further. They include:
N Flint Stream or Lamb River may be wild, scenic, or recreational rivers;
N Site may be within 100-year floodplain; and
N Remedial actions may affect wetland.
For purposes of this hypothetical example, it is assumed that neither the
stream nor the river has been designated a wild, scenic, or recreational river, and
that the site is not within a floodplain. Therefore, the requirements listed in
Exhibit 1-2 will not be ARARs based on those characteristics. For actions affecting
the 1.0 acre contaminated wetlands area, however, Exhibit 1-2 lists CWA §404, 40 CFR
Part 230, Army Corps of Engineers regulations (33 CFR Parts 320-330), and 40 CFR
Part 6, Appendix A, as potential ARARs. An assessment of the potential effects of
the remedial action on the wetland should be made during the RI/FS. Consultation
with the State and contacts with the §404 Wetlands Protection Office in the Region
should be made to determine if special steps are required to avoid adverse effects.
In this hypothetical situation, because dredged or fill material will not be
discharged into the wetland as part of the remedial action, CWA §404, 40 CFR Part
230, and Army Corps of Engineers regulations (33 CFR Parts 320-330) are not
applicable. However, 40 CFR Part 6, Appendix A, which is EPA's statement of
procedures on wetlands protection, requires, to the extent possible, that remedial
activities avoid long- and short-term adverse impacts associated with the
destruction or modification of wetlands. When there are no practicable alternatives
to conducting such activities in wetlands, the potential harm should be minimized.
IDENTIFICATION AND ANALYSIS OF ACTION-SPECIFIC REQUIREMENTS
Cleanup at the hypothetical Flintstone Site will probably involve a large
number of different remedial activities. It is assumed that several actions would be
considered, including:
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N The consolidation of waste from the contaminated wetland area by picking
it up and removing it to one of the waste pits on the main site;
N Extraction of contaminated ground water, treating it, and discharging it
to a publicly owned treatment works (POTW);
N Extraction of contaminated ground water, treating it, and discharging it
directly to Flint Stream; and
N Extraction of contaminated ground water, treating it, and injecting it
back into the aquifer.
Not all of these potential actions at the site are analyzed in this
hypothetical scenario. The procedure used, however, would be followed for each of
the potential actions.
Identification of Action-specific ARARs
First, the potential action-specific ARARs for each of the actions under
consideration would be identified by consulting Exhibit 1-3 in Chapter 1, which
lists action-specific requirements under RCRA (including the Hazardous and Solid
Waste Amendments of 1984) and the CWA. In this hypothetical situation, for example,
Exhibit 1-3 indicates that the potential requirements involved in consolidation will
differ depending on whether the consolidation occurs within units or between units.
Among the requirements are land disposal restrictions, closure requirements, and
post-closure care requirements.
Analysis of Action-specific ARARs
Exhibit 1-3 also lists the prerequisites for applicability of the requirements
associated with each of the actions listed. After potential ARARs have been
identified, the next stop is to determine whether the prerequisites for RCRA
applicability are satisfied by the site-specific conditions for the actions under
consideration. In this case, Exhibit 1-3 indicates that the prerequisites for
applicability of the consolidation requirements are placement of hazardous wastes
into another unit. In analyzing these prerequisites, therefore, first determine
whether RCRA hazardous wastes or constituents are involved in the action.
Trichloroethylene is listed RCRA waste #U228 and cadmium, chromium, and lead are
hazardous waste constituents. However, it should not be assumed that these materials
are RCRA hazardous wastes. Testing or attempts to identify the origin of the
constituents should be undertaken, when necessary, to determine whether the first
prerequisite, that the wastes are RCRA hazardous wastes, is satisfied. Second,
analyze the prerequisite concerning placement of the wastes. In this situation,
movement of contaminated materials from the wetland area across the boundary of the
1.0 acre unit and placement of the waste in the second unit would satisfy the
prerequisite, because the site consists of two separate areas of contamination, and
the materials are being
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removed from the first and placed in the second.
Because the prerequisites associated with consolidation are satisfied,
next it is necessary to consider the requirements listed under Exhibit 1-3 for
land-disposal requirements and restrictions, for closure requirements, and for
post-closure care and monitoring, since they are triggered if consolidation
between two units occurs. If the wastes are being consolidated in a new
landfill, the entry in Exhibit 1-3 for construction of a new landfill on site
should next be consulted to determine the requirements for that action. If,
on the other hand, the wastes are being consolidated in an existing landfill
(which would not be the case in this hypothetical scenario) the entry in
Exhibit 1-3 for closure with waste in place may be relevant and appropriate.
In either situation, additional prerequisites are listed in Exhibit 1-3 and
regulatory citations are provided so that additional details about the requirements
may be obtained if necessary. The identification of which requirements would be
ARARs would depend, in part, on the further actions to be taken and the wastes
involved. If, for example, the wastes are subject to the land disposal bans under
RCRA, then treatment to Best Demonstrated Available Technology (BDAT) levels would
be required before the wastes could be land disposed.
Action-specific requirements for other potential actions at the site would be
analyzed in the same way as the consolidation action described above. For example,
direct discharge to Flint Stream or indirect discharge to a POTW are actions that
Exhibit 1-3 indicates are subject to discharge requirements established pursuant to
the Clean Water Act. Specifically, the direct discharge of treated ground water to
Flint Stream is subject to National Pollutant Discharge Elimination System (NPDES)
Program discharge standards and requirements. According to the draft NCP, "on-site"
is defined for permitting purposes to include the "areal extent of contamination and
all suitable areas in very close proximity to the contamination necessary for
implementation of the response action." For this hypothetical example, the area of
contamination resulting from the abandoned hazardous waste area is directly adjacent
to Flint Stream. Therefore the extraction and treatment of contaminated ground
water, and subsequent discharge to Flint Stream is considered an on-site action due
to the proximity of the site to Flint Stream. As such, the discharge need not have a
NPDES permit, but must meet substantive ARARs. As discussed in Chapter 3, these
substantive requirements for the Flintstone site include discharge limits. These
limits would be based on the more stringent standards between the following:
N Technology-based standards. Because the Flintstone site was used for
indiscriminate illegal dumping, and not for the sole use of an industrial
generator of hazardous waste, there are no applicable EPA guidelines.
Therefore, technology-based standards have to be set using best
professional judgment. The proposed response alternative for the
Flintstone site must be reviewed to ensure the use of treatment
technologies that have been proven effective to treat the pollutants
present in the contaminated ground water. Numerical effluent limits or
treatment efficiency requirements can be
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developed.
N Water-quality criteria/State standards. The identification of which water
quality criteria/State standards would be applicable or relevant and
appropriate depends primarily on the designated use of Flint Stream. If,
for example, the State designation of Flint Stream required protection and
propagation of fish and aquatic life, EPA water quality criteria for the
protection of aquatic life (or applicable or relevant and appropriate
State water quality standards, if available) would need to be met for each
pollutant of concern prior to discharge.
Other substantive NPDES requirements such as effluent toxicity monitoring or
best management practices would also have to be evaluated based on the Flintstone
conditions. The appropriate EPA/State Water Program Office should be consulted
regarding all substantive NPDES requirements that may be applicable or relevant and
appropriate for the Flintstone site.
Prior to the determination to discharge treated ground water from the
Flintstone site to a POTW, it first must be determined if the POTW is in compliance
with applicable Federal laws (i.e., the POTWs NPDES permit and pretreatment program
requirements). Therefore, the Flintstone site manager needs to evaluate the POTWs
record of compliance. To do this, the Flintstone site manager would need to contact
the POTW oversight authority (i.e., appropriate EPA Region or delegated State Water
Office) to collect data pertaining to the POTWs compliance status. If the POTW is
out of compliance with applicable laws, then according to CERCLA §121(d)(3), the
discharge to the POTW should be prohibited.
A determination of the POTW s ability to accept the treated ground water
should also be made during the remedial alternatives analysis under the RI/FS
process. Factors that should be considered for this determination are discussed in
Section 3.3.2. and include, for example, evaluating waste compatibility with the
POTW. The Flintstone site manager should coordinate with the appropriate Water
Division officials and their State counterparts and POTW representatives in
evaluating the potential use of the POTW for the discharge of Flintstone site
wastewater.
If the remedial alternative under consideration involves discharge to a POTW,
the pollutants to be discharged must be identified carefully. Certain pollutants are
specifically precluded from discharge into a POTW (those that will create a fire or
an explosion hazard in the POTW, for example). Other discharges must specifically
comply with local POTW pretreatment programs. These local pretreatment programs
typically have specific requirements regarding discharge to their POTW. For example,
any local limits for the pollutants of concern at the Flintstone site would have to
be complied with prior to discharge to the POTW. Any other specific discharge
requirements of a POTW (e.g., prohibitions such as temperature, color, etc.) are
considered applicable and must be complied with.
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Other substantive requirements for discharge to POTWs include RCRA
permit-by-rule requirements, which must be complied with for discharges of RCRA
wastes to POTWs by truck, rail, or dedicated pipe. If the treated ground water is
transported by a dedicated pipe from the site directly to the POTW, the POTW would
be subject to the RCRA permit-by-rule provisions, and will have to also be in
compliance with RCRA requirements in NPDES permits. The Flintstone site would also
need to meet applicable RCRA requirements, including manifesting requirements, etc.
Specific Clean Water Act ARARs are discussed in greater detail in Chapter 3.
For the underground injection of treated ground water, Underground Injection
Control (UIC) program requirements established under the Safe Drinking Water Act are
potential ARARs (see 40 CFR Part 144). The identification of which specific
requirements would apply depends on the type of injection well constructed at the
site. Class I, Class IV and Class V wells are the three classes most likely to be
associated with CERCLA actions. For the Flintstone site, contaminated ground water
is to be extracted, treated, and reinjected back into the ground. The proposed well
bore is located within one-quarter mile of an underground drinking water source.
Therefore, the well is classified as a Class IV well. Such wells may be used for
cleanup at CERCLA sites (40 CFR §144.13(c)). Further, the proposed well bore will be
located within the Flintstone site. Therefore, this is considered an on-site
discharge. No UIC permit is required, but substantive UIC program requirements must
be met.
Substantive requirements for Class IV injection wells include:
N The general requirement that no owner or operator may construct, operate,
or maintain an injection well in a manner that results in the
contamination of an underground source of drinking water;
N Applicable RCRA provisions; and
N Construction, operating, and closure requirements.
A more detailed discussion of these requirements is provided in Section 4.1.2.
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APPENDIX
OVERVIEW OF MAJOR ENVIRONMENTAL STATUTES AND REGULATIONS
1. OVERVIEW OF RESOURCE CONSERVATION AND RECOVERY ACT
1.1 OFFICE OF SOLID WASTE
This section describes the Resource Conservation and Recovery Act (RCRA) of
1976, the additions to the Act made in the Hazardous and Solid Waste Amendments
(HSWA) of 1984, and accompanying regulations finalized or proposed by October 1,
1987. As the major federal statute creating standards for the treatment, storage,
and disposal of hazardous waste. RCRA is the most important source of applicable or
relevant and appropriate standards for actions taken pursuant to CERCLA §§104 and
106. The first part of this section provides an overview of the statutes, noting
their purpose and structure; the second provides a summary of the important
regulatory requirements under RCRA and HSWA.
1.2 OVERVIEW OF RCRA
RCRA was enacted in 1976 to regulate the management of hazardous waste, to
ensure the safe disposal of wastes, and to provide for resource recovery from the
environment by controlling hazardous wastes "from cradle to grave." The statute
attempts to address all aspects of hazardous waste management by establishing
essentially a three-step process: (1) identification and listing of wastes to be
regulated as hazards; (2) tracking of wastes from the point of generation, through
transportation, to the site of final treatment, storage, or disposal; and (3)
controlling the management practice used during the treatment, storage, and ultimate
disposition of these wastes through technical standards, performance standards, and
permitting requirements.
Although certain statutory and regulatory requirements under RCRA apply
specifically to generators and transporters, the majority of substantive RCRA
requirements affect the management of hazardous waste treatment, storage, and
disposal facilities.
RCRA operating standards for treatment, storage, and disposal facilities will
be the primary area of interaction between RCRA requirements and CERCLA responses.
The authority for these requirements is found in RCRA Subtitle C, §3004, Standards
Applicable to Owners and Operators of Hazardous Waste Treatment, Storage, and
Disposal Facilities. Subtitle C also addresses the other aspects of the three-step
process mentioned above, including identification and listing of hazardous waste
(§3001); standards applicable to generators and transporters of hazardous waste
(§§3002 and 3003); and standards applicable to owners or operators of facilities for
treatment,
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storage, and disposal of hazardous waste (§3305).
RCRA Subtitle D provides criteria for the disposal of nonhazardous wastes in
open dumps and sanitary landfills. These may be applicable or relevant and
appropriate for CERCLA actions in a limited number of situations. RCRA §4004(a)
requires EPA to issue regulations establishing criteria for determining whether a
facility should be classified as a sanitary landfill or as an open dump. It also
allows states to develop solid waste management planning programs that set forth a
plan for closing open dumps. §4005(a) prohibits open dumping of hazardous or solid
waste.
The enactment in November, 1984 of the Hazardous and Solid Waste Amendments of
1984 (HSWA) added significant new provisions to §3004. Among them are new
requirements that:
N Prohibit land disposal of certain wastes, including some liquid
hazardous wastes and dioxins (this prohibition does not apply
legally to disposal from a CERCLA response action for a four-year period
after enactment of the amendment; however, it could be determined to be
relevant and appropriate before the date of its legal applicability);1
N Require a review of each RCRA hazardous waste to determine whether
land disposal of the waste should be prohibited.2 The ban would not
apply if an EPA-developed treatment standard for a waste had been
met;
N Require (1) the installation of a double liner and a leachate
collection system and (2) ground-water monitoring for landfills and
surface impoundments, and the use of leak detection systems for
certain types of hazardous waste management units;3
N Require corrective action for all releases from a solid waste
management unit at permitted hazardous waste treatment, storage, or
disposal facilities. (Although this requirement applies only to
1 Initial land ban regulations were issued in 1986 and are found in 40 CFR
Part 268. A correction to those regulations was issued in June, 1987 (52 FR 21010)
and additional regulations for "California List" wastes were issued in July, 1987
(52 FR 25760) .
2 The schedule of hazardous wastes to be reviewed by EPA is set out in 40 CFR
Part 268.
3 A Notice of Proposed Rulemaking (NPRM) was issued on May 29, 1987 discussing
possible regulations for leak detection requirements. Rules covering the installation
of liners and leachate collection systems have also been issued and are found in
Subparts I - N of Part 264.
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permitted facilities, standards for corrective action developed under RCRA
may be applicable or relevant and appropriate to similar CERCLA actions.)4
In addition, corrective action requirements as necessary or appropriate
are authorized under §3004(u); and
N Authorize administrative orders requiring corrective action or other
response measure for releases of hazardous waste from interim status
facilities.
1.3 RCRA REGULATIONS PERTAINING TO HAZARDOUS WASTE
The RCRA program is largely defined by regulations, which, along with guidance
and decisions made in the permitting process, are the source of a great majority of
the RCRA program's specific requirements. RCRA requirements that may be applicable
or relevant and appropriate to CERCLA response actions are found primarily in the
RCRA regulations (40 CFR Parts 260-271).
The RCRA regulations that are of primary importance for CERCLA responses
are the Standards for Owners and Operators of Hazardous Waste Treatment, provided in
RCRA §3004. The RCRA regulations differ depending on whether a hazardous waste
facility has a RCRA permit (40 CFR Part 264) or is operating under interim status
(40 CFR Part 265). CERCLA remedies will generally be consistent with the more
stringent Part 264 standards, even though a permitted facility is not involved.
Therefore, only the Part 264 standards are described here.
Nine of the subparts in 40 CFR Part 264 are potentially applicable or relevant
and appropriate to CERCLA. Seven of these subparts establish process-specific
standards for particular types of hazardous waste management units:
N Containers (Subpart I)
N Tanks (Subpart J);
N Surface impoundments (Subpart K) ;
N Waste piles (Subpart L);
N Land treatment (Subpart M);
N Landfills (Subpart N) ; and
N Incinerators (Subpart O).
The other subparts that are potentially applicable or relevant and appropriate are
ground-water protection (Subpart F) and closure and post-closure (Subpart G). These
nine subparts are briefly described below.
4 Procedures for corrective action are found throughout subparts of the
RCRA regulations. A proposed rule covering administrative procedures for corrective
action hearings was issued on August 6, 1987 (52 FR 29222).
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Subpart F — Ground-Water Protection (40 CFR §§264,90-264,101)
Subpart F creates broad ground-water protection requirements under RCRA. These
requirements include both concentration standards and monitoring requirements and
corrective action requirements for regulated units.
The EPA Regional Administrator is required by 40 CFR §264.92 and §264.94 to
set ground-water protection standards and concentration limits for Appendix VIII and
Appendix IX5 hazardous constituents once they are detected in the ground water at a
hazardous waste land disposal facility. According to 264.94(a), the concentration
limits will be based on: (1) the background level of each constituent in the ground
water at the time the limit is specified in the permit; (2) maximum concentration
limits (MCLs) for 14 specified hazardous constituents if background levels are below
these standards; or (3) an "alternate concentration limit' (ACL) that can be set by
the Regional Administrator if he determines that a less stringent standard will
protect public health and the environment. The factors that should be used to grant
an ACL are outlined in 40 CFR §264.94(b).6
Subpart F also establishes a three-phase ground-water monitoring program for
permitted land disposal facilities. 40 CFR 1264.98 outlines the requirements of a
"detection monitoring program," to detect the existence of designated hazardous
constituents in the ground waters. The detection monitoring program' is a
semi-annual monitoring protocol. If hazardous constituents are detected, the
ground-water protection strategy (GWPS) must be established.7
40 CFR §264.99 outlines the compliance monitoring program that must be
established whenever hazardous constituents are detected. During this phase, the
owner or operator must conduct compliance monitoring to determine if the levels of
constituents exceed the ground-water protection standards (background levels, MCLs,
or ACLs) specified in the permit. If GWPS limits are exceeded, the owner or operator
must institute a corrective action program to bring the facility back into
compliance (40 CFR §264.100). In conjunction with the corrective action program, the
owner or operator must also establish effectiveness of the corrective action
program. The owner or operator must continue the compliance monitoring program until
the GWPS is achieved for
5 Rules adding Appendix IX list were finalized on September 9, 1987 (52 FR
25842).
6 The factors used to grant an ACL are presented in Chapter 2.
7 A proposed rule issued August 24, 1987 (52 FR 31948) would establish new
standards for determining when hazardous wastes are "detected" in ground water, and
thus when corrective action and compliance monitoring provisions would be triggered.
This rule would change the definition of "detection", for example, to be
"statistically significant evidence of contamination."
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three consecutive years before returning to the detection monitoring program.
Subpart G — Closure and Post Closure (40 CFR §§264.110-264.120)
Subpart G creates technical and procedural standards for closure and
post-closure care of hazardous waste management facilities.
40 CFR §264.111 requires that the owner or operator close the facility in a
manner that "minimizes the need for further maintenance" and "controls, minimizes,
or eliminates ... post-closure escape of hazardous waste, leachate, contaminated
rainfall, or waste decomposition products" to the environment."8
Process-specific closure requirements for surface impoundments (40 CFR
§264.228) specify that if some wastes or contaminated materials are left in place at
final closure, the facility must be closed in accordance with the post-closure
requirements contained in 40 CFR §§264.117-.120. Process-specific closure
requirements for landfills (40 CFR §264.310) specify that the owner or operator must
cover the landfill with a specially designed and constructed final cover. After
final closure, the owner or operator must comply with the post-closure requirements
contained in 40 CFR §§264.117-264.120. Finally, process-specific closure
requirements for waste piles (40 CFR §264.258) specify that if, after removing or
decontaminating all residues and making all reasonable efforts to effect removal or
decontamination of contaminated components, subsoils, structures, and equipment, the
owner or operator finds that not all contaminated subsoils can be practicably
removed or decontaminated, he must close the facility and perform post-closure care
in accordance with the closure and post-closure care requirements for landfills.9
40 CFR §264.12 requires the owner or operator to prepare a written plan as
part of the permit conditions that describes how and when the facility will be
closed and partially closed, describes procedures for decontamination activities,
and includes a schedule for conducting closure. In addition, the owner or operator
must notify the Regional Administrator at least 180 days prior to the date he
intends to begin closure activities. The closure plans must be reviewed by the
Regional Administrator and are subject to the public participation provision in 40
CFR Part 124 as part of the permit review
8 The notice of proposed rulemaking issued on May 29, 1987 would add
requirements for leak detection systems in most disposal facilities.
9A rule issued on March 19, 1987 allows interim status facility owners
or operators to remove all contaminants from treatment, storage or disposal
facilities and avoid post-closure requirements. The rule provides interim
status facilities the same opportunity that already exists for permitted
facilities.
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process .lu
40 CFR §264.117 states that monitoring, maintenance, and reporting
requirements established for surface impoundments, waste piles, land treatment
facilities, and landfills must continue for 30 years following closure. The Regional
Administrator may extend or reduce the length of the period based on cause. 40 CFR
§264.118 requires the preparation of a written post-closure plan describing planned
monitoring and maintenance activities.11
Subpart I — Use and Management of Containers (40 CFR §§264.170-264.178)
Requirements for facilities that store containers of hazardous wastes are
provided in 40 CFR Part 264 Subpart I. The major requirements are that the owner or
operator must: (1) maintain containers in good condition; (2) inspect container
storage areas at least weekly; (3) provide a sloped, crack-free base for all areas
storing containers that contain free liquids; (4) refrain from placing incompatible
wastes in the same container, and place walls or dikes between containers holding
wastes incompatible with other nearby materials; (5) remove all wastes and residues
from containment systems upon closure; and (6) locate only containers holding
ignitable or reactive waste at least fifty feet from the property line.
Subpart J — Tanks (40 CFR §§264.190-264.200)
40 CFR Part 264 Subpart J outlines design and management standards for tanks
containing hazardous wastes.
On July 14, 1986, EPA promulgated regulations amending the Subpart J
requirements.12 The regulations address tank design, installation, and operating
standards and can be summarized as follows:
" The owner or operator must obtain a written assessment the structural
integrity and acceptability of existing tanks systems and designs for now
tank systems, reviewed by an independent, qualified, registered
professional engineer.
All new tank systems would be required to be enclosed in a full secondary
containment system that would encompass the body of the
10
A recent proposed rule (52 FR 35838) establishes procedures under which owners
and operators may amend their written closure and post-closure plans.
Post-closure procedure requirements for certain facilities that received
wastesbetween 7/26/82 and 1/26/83 were issued (51 FR 16421) on May 2, 1986). The
NPRM of May 29, 1987 would amend these requirements to make them consistent with the
double-liner and leak detection systems.
12 51 FR_ 25470, July 14, 1986.
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tank and all ancillary equipment and be able to prevent any migration of
wastes into the soil. This secondary containment system would be required
to be equipped with a leak detection system capable of detecting releases
within 24 hours of release.
" Facilities with existing tank systems will be required to install
secondary containment systems within specified times based on age and
waste type.
Owners or operators may seek from the Regional Administrator both
technology-based and risk-based variances from secondary containment
requirements, based on either: (1) a demonstration of no migration of
hazardous waste constituents beyond the zone of engineering control; or
(2) a demonstration of no substantial present or potential hazard to
human health and the environment.
Annual leak tests must be conducted on non-enterable underground tanks
until such time as an adequate secondary containment system could be
installed. Either an annual leak test or other type of adequate
inspection must also be conducted on enterable types of tanks which do
not have secondary containment.
Inspection requirements have been upgraded to include regular inspection
of cathodic protection systems and daily inspection of entire tank
systems for leaks, cracks, corrosion, and erosion that may lead to
releases.
The owner or operator must remove a tank from which there has been a
leak, spill or which is judged unfit to use. He then must determine the
cause of the problem, remove all waste from the tank, contain visible
releases, notify appropriate parties as required by other laws (i.e.
CERCLA Reportable Quantity requirements), and certify the integrity of
the tank before further use.
Closure requirements include removing waste, residues and contaminated
liners, disposing of them as hazardous waste, and conforming with
Subparts G and H (including post-closure of tank if necessary).
The owner or operator must also comply with general operating
requirements and with special requirements for ignitable, reactive or
incompatible wastes.
EPA recently proposed a comprehensive rule (52 FR 12662, April 17, 1987) to
regulate all underground storage tanks (USTs). It proposes standards for "design,
construction, installation, release detection and compatibility" and applies them
specifically to tanks storing either petroleum products or hazardous substances
other than those regulated under Subtitle C of RCRA. These may, however, be relevant
and appropriate to Subtitle C hazardous
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wastes.
Subpart K — Surface Impoundments (40 CFR §§264.220-264.249)
40 CFR Part 264 Subpart K establishes design and operating requirements for
surface impoundments. The standards require that each new surface impoundment, each
new surface impoundment at an existing facility, each replacement of an existing
surface impoundment unit, and each lateral expansion of an existing surface
impoundment unit must satisfy certain minimum technological requirements, including
two or more liners and a leachate collection system between the liners. An
alternative liner design may be approved if the Regional Administrator finds that
operating practices and locational characteristics together prevent the migration of
hazardous constituents into the ground water or surface water at least as
effectively as the liners and leachate collection systems. Owners or operators must
comply with ground-water monitoring requirements under 40 CFR Part 264 Subpart F,
including corrective action, if needed. Impoundments must be removed from service if
the liquid level suddenly drops or the dike leaks.
RCRA §3005(j), as amended, requires the owner or operator of any surface
impoundment that was in existence and operating under interim status on November 8,
1984, to install two or more liners, a leachate collection system between the
liners, and ground-water monitoring by November 8, 1988, (unless the impoundment
qualifies for one of four exemptions set out in §3005(j)) or to cease placement,
storage, or treatment of hazardous waste in the surface impoundment.
RCRA also required EPA to issue standards mandating that new surface
impoundment facilities use an approved leak detection system. EPA issued a notice of
proposed rulemaking (NPRM) on May 29, 1987 that would allow a modified version of a
leachate collection and removal system (LCRS) between double liners as an adequate
leak detector. The NPRM also proposed changes in regulations for replacements and
lateral extensions of existing surface impoundment facilities, response activities
by owners and operators of facilities, and quality assurance requirements.
At closure, an impoundment operated under Part 264 may be closed by removing
and decontaminating all hazardous wastes, residues, liners and subsoils. If all
hazardous wastes cannot be removed or decontaminated, then the facility must be
capped and post-closure care provided. An owner or operator of an impoundment may
also choose to close the impoundment as a disposal facility — solidify all
remaining wastes, cap the facility, and comply with Part 264 post-closure
requirements.
Subpart L — Waste Piles (40 CFR §§264.250-264.269)
Subpart L requires that an owner or operator of a waste pile facility: (1)
install a liner under each pile that prevents any migration of waste out of the pile
into the adjacent subsurface soil or ground or surface water at
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any time during the active life; (2) provide a leachate collection and removal
system; (3) provide a run-on control system and a run-off management system; (4)
comply with the Subpart F requirements; (5) inspect liners during construction and
inspect the wastes at least weekly thereafter; and (6) close the facility by
removing or decontaminating all wastes, residues, and contaminated subsoils (or
comply with the closure and post-closure requirements applicable to landfills if
removal or decontamination of all contaminated subsoils proves impossible). Existing
piles are exempt from the liner and leachate collection system requirements but may
be affected by the regulations proposed in the NPRM (May 29, 1987) 13.
Subpart M — Land Treatment (40 CFR §§264.270-264.299)
Subpart M requires that owners or operators of facilities that dispose of
hazardous waste by land application: (1) establish a treatment program that
demonstrates to the Regional Administrator's satisfaction that all hazardous
constituents placed in the treatment zone will be degraded, transformed, or
immobilized within that zone; (2) conduct a monitoring program to detect
contaminants moving in the unsaturated zone (the subsurface above the water table);
and (3) continue all operations during closure and post-closure to maximize the
degradation, transformation, or immobilization of hazardous constituents.14
Subpart N — Landfills (40 CFR §§264.300-264.339)
Subpart N requires owners or operators of new landfills, new landfills at an
existing facility, replacements of existing landfill units, and lateral expansions
of existing landfill units to satisfy the minimum technological requirements for two
or more liners and a leachate collection system above and between the liners. In
addition, the landfill must have run-on/run-off control systems and control wind
dispersal of particulates as necessary; comply with the Subpart F ground-water
protection requirements, close each cell of the landfill with a final cover, and
institute specified post-closure monitoring and maintenance programs. In addition,
40 CFR §264.314 and §265.314 ban the landfill disposal of bulk or non-containerized
liquid hazardous waste. After November 8, 1985, non-hazardous liquids also are
generally banned (for more information, see section "Hazardous Solid Waste
Amendments - Land Ban") .15
13 A NPRM (May 29, 1987, 52 FR 20218) would require double liners and a
leachate collection and removal system for the unused portions of existing piles and
for any lateral extensions of waste piles and leak detection.
The NPRM would require owners and operators to establish a written response
plan to handle any leaks detected at the facility.
The NPRM would require leak detection systems and the development of a
written response plan to any leaks that were detected.
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Subpart O — Incinerators (40 CFR §§264.340-264.999)
Subpart O of Part 264 specifies design and operating requirements for any
incinerator burning hazardous wastes. For incinerators that only burn wastes listed
as hazardous solely by virtue of their ignitability, corrosivity, or reactivity, or
some combination thereof, only the closure requirements and waste analyzes required
prior to incineration are applicable. 40 CFR §264.343 specifies that all
incinerators must be constructed and maintained so as to detoxify (by destruction or
physical removal in air pollution control systems) at east 99.99 percent (or 99.9999
percent for dioxin wastes) of each "principal organic hazardous constituent" in the
input steam, and so as not to emit more than 180 milligrams of particulate matter
per cubic meter of stack gas. HCL emissions are limited to 1.8 kg/hr or 1 percent of
the HCL in stack gas before controls. 40 CFR §264.347 outlines the parameters the
owner/operator must monitor during incinerator operation; 40 CFR §264.351 requires
that all wastes, residues, ash, and effluents be removed from the incinerator site
at closure and treated as hazardous wastes, if applicable.
Ha.za.irdo'us Solid Waste Amendments — Lcind Ba.n
On July 15, 1985, EPA codified into the existing RCRA Subtitle C regulations a
set of provisions from the Hazardous and Solid Waste Amendments of 1984 (See 50 FR
28742)(the "Codification Rule"). Although the provisions of the Codification Rule
have been integrated into the previously discussed RCRA regulations, they are
addressed separately here to highlight the new requiremients that the statute
imposed. Those provisions likely to have a significant impact an the RCRA regulatory
requirements that may be applicable or relevant and appropriate to CERCLA responses
are discussed below.
Ban of Liquids in Landfills. HSWA imposed a ban on the placement of bulk or
non-containerized liquid hazardous waste or hazardous waste containing free liquids
(whether or not absorbents have been added) in any landfill after May 8, 1985,
unless it can be demonstrated that:
(1) The only reasonably available alternative for these non-hazardous
liquids is a landfill or unlined surface impoundment which already
contains, or any reasonably be anticipated to contain, hazardous waste;
and
(2) The disposal of the non-hazardous liquids in the landfill will not
present a risk of contamination to any underground source of drinking
water.
Other Land Ban Rules. EPA issued a rule in May, 1986 (effective June 28, 1986)
and an amended rule in November, 1986 that is now codified in 40 CFR Part 268. The
rule sets forth the first list of banned wastes that have not undergone the Best
Demonstrated Available Technology (BDAT) and the schedule for EPA's review of other
wastes that may be affected by the land ban. A
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correction to Part 268 was finalized in June, 1987 (52 FR 21010), and a rule
finalizing the restrictions on "California List" wastes (liquid hazardous wastes
containing PCBs) and hazardous wastes containing HOCs was issued on July 7, 1987.
Delisting Procedures. Prior to HSWA, delisting petitioners were required under
40 CFR §260.22(a) to demonstrate to the satisfaction of the Administator at that the
waste in question did not meet any of the criteria under which it was originally
listed. Section 260.22 provided that a waste so excluded could still qualify as a
hazardous waste if it failed any of the RCRA Subpart C characteristics
(ignitability, reactivity, corrosivity, EP toxicity). The codification rule added to
40 CFR §260.22(a) the requirements that, before excluding a waste:
(1) The petitioner must demonstrate to the satisfaction of the Administrator
that the waste produced by a particular generating facility does not
meet any of the criteria under which the waste was listed as a hazardous
or an acutely hazardous waste; and
(2) Based on a complete application, the Administrator must determine, where
he has a reasonable basis to believe that factors (including additional
constituents) other than those for which the waste was listed could
cause the waste to be a hazardous waste, that such factors do not
warrant retaining the waste as a hazardous waste. A waste which is so
excluded, however, still may be a hazardous waste by operation of
Subpart C of Part 261.
Minimum Technology Requirements. HSWA imposed minimum technological
requirements that must be met by owners or operators of certain landfills and
surface impoundments. Specifically, amended §3004 of RCRA stipulates that a permit
for a new landfill or surface impoundment, a new landfill or surface impoundment at
an existing facility, or a replacement or lateral expansions of an existing landfill
or surface impoundment unit, must require the installation of two or more liners, a
leachate collection system above (in the case of a landfill) and between the liners,
and ground-water monitoring. The section provides an exemption from liner and
leachate collection system standards if alternative design and operating practices,
together with locational characteristics, will prevent the migration of hazardous
constituents into the ground water or surface water at least as effectively as
the liners and leachate collection system. Amended §3015 of RCRA establishes
the applicabili of §3004 standards to interim status surface impoundments,
landfills, and waste piles receiving wastes after May 8, 1985.16
Regulations concerning minimum technology requirements were proposed on
March 28, 1986 (51 FR 10706). Information about the effectiveness of double-liner
and leachate collection systems, the subject of the minimum requirements, was
published on April 17, 1987 (52 FR 12566).
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Corrective Action and Cleanup Beyond Facility Boundary. RCRA §3004 was amended
by HSWA to require corrective action for all releases of hazardous waste or
constituents from any solid waste management unit at a facility seeking a RCRA
permit, regardless of when waste was placed at the unit. RCRA §3004 also directs the
Agency to promulgate regulations obligating owners and operators of treatment,
storage, and disposal facilities to undertake corrective action beyond the facility
boundary where necessary to protect human health and the environment, unless the
owner or operator demonstrates to EPA that, despite his best efforts, he or she is
unable to obtain the necessary permission to undertake such action. Until EPA
promulgates the regulations which are currently being developed, implementation of
this statutory provision shall proceed on a case-by-case basis through
administrative orders.17
Underground Injection. The HSWA added new §7010 to RCRA, banning the injection
of hazardous wastes into or above any underground formation which contains, within
one-quarter mile of the injection well, an underground source of drinking water. The
ban applies to any state not having identical or more stringent prohibitions in
effect under an applicable underground injection control program that has been
approved or prescribed by EPA under the Safe Drinking Water Act.
1.4 OTHER RCRA REGULATIONS
The following additional RCRA regulations may be applicable or relevant and
appropriate to CERCLA responses:
Open Dump Criteria (40 CFR Part 257)
In addition to the subparts of 40 CFR Part 264 described above, the open dump
criteria of 40 CFR Part 257 are potentially applicable or relevant and appropriate
to CERCLA responses. 40 CFR Part 257 establishes criteria for classifying solid
waste disposal facilities to determine which pose a reasonable probability of
adverse effects on human health and the environment. Facilities that fail to satisfy
the criteria of the Part are classified as open dumps, which must be addressed by
State solid waste management plans.
Special Rules Concerning Dioxin
40 CFR Part 261 provides that certain wastes containing tetra, penta, and
hexaclorinated dioxins (CDDs) are acute hazardous wastes. Special requirements are
set by §§264.175, 264.200, 264.231, 264.259, 264.283, 264.317, and 264.343 for the
management standards concerning such wastes. These standards include special
requirements for the management of the wastes in a storage, tank, surface
impoundment, pile, land treatment unit, landfill,
A rule on corrective action and cleanup beyond the facility boundary was
proposed an March 28, 1986 (51 FR_ 10706).
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or incinerator. EPA has also proposed a rule for the management of the residues
resulting from the incineration or thermal treatment of such wastes.18
2. OVERVIEW OF CLEAN WATER ACT AND THE WATER QUALITY ACT
This section describes the Clean Water Act (CWA) of 1977, and the amendments
to the act made by the Water Quality Act (WQA) of 1987. The section provides an
overview of the CWA, noting its purpose, structure, and implementing regulations.
The purpose is to provide an overview of the legislative requirements and the
implementing regulations of each law that establish potentially applicable or
relevant and appropriate requirements for CERCLA activities.
2.1. OVERVIEW OF THE CWA
The objective of the CWA is to restore and maintain the chemical, physical,
and biological integrity of the nation's waters. The national goals established to
achieve this objective of the CWA are 1) that the discharge of pollutants into
waters of the U.S. be eliminated, and 2) that water quality that provides for the
protection and propagation of fish, shellfish, and wildlife and provides for
recreation in and on the water, be attained. The objective and goals of the CWA are
to be achieved through the control of discharges of pollutants to surface waters.
The CWA also involves the States (through the implementation of approved programs)
in the objective to prevent, reduce, and eliminate the discharge of pollutants to
surface waters.
The CWA is organized into five major sections:
" Title I - Research And Related Programs: Establishes grants and
contracts for research, development, and training programs for water
pollution control.
" Title II - Grants for Construction of Treatment Works: Requires the
development and implementation of waste treatment management plans
and practices that will achieve the goals of the Act. Provides for
the award of grants for the construction of wastewater treatment
works.
Title III - Standards and Enforcement: Requires the establishment of
criteria and standards for discharges to surface waters to protect
water quality and achieve national performance standards. The
authority to enforce these standards is also established.
18 See 50 FR 37338, September 12, 1985.
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" Title IV - Permits and Licenses: Requires the establishment of
regulatory permitting programs to apply and enforce standards
established under Title III of the Act.
Title V - General Provisions: Establishes provisions associated with
the implementation of the requirements of the Act, including
emergency powers, citizen suits, judicial review, employee
protection, administrative procedures, Federal procurement, and State
authority.
The primary areas of interaction between CWA requirements and CERCLA responses
occurs under Titles III and IV, where effluent standards and permits are required to
be established and applied to discharges to the Nation's waterways. The implementing
regulations resulting from the requirements established under Titles III and IV of
the CWA are contained throughout Title 40 of the Code of Federal Regulations. Due to
the numerous parts of Title 40 published pursuant to the CWA, the following sections
will summarize CWA requirements by major Sections contained in Titles III and IV.
The major implementing regulations for these sections are also referenced.
2 . 2 CWA REQUIREMENTS PERTAINING TO CERCLA DISCHARGES
Section 301 - Effluent Limitations
Section 301 of the CWA requires technology-based discharge limitations be
established for categories and classes of point sources of pollutants. For
conventional pollutants, Section 301 requires that effluent limitations be based
upon the application of the best conventional pollutant control technology (BCT).
For toxic and nonconventional pollutants, Section 301 requires that effluent
limitations be based upon the application of the best available technology
economically achievable (BAT). Pretreatment standards are applied to indirect
discharges to publicly owned treatment works (POTWs).
Section 302 - Water Quality Related Effluent Limitations
Section 302 authorizes the establishment of more stringent effluent
limitations (including alternative BAT effluent control strategies) to protect water
quality if technology-based controls established under Section 301 would not assure
protection of the intended uses of the receiving waters (e.g., public water supply,
agricultural and industrial uses, and recreational uses).
Section 303 - Water Quality Standards and Implementation Plans
Section 303 of the CWA requires States to develop water quality standards that
consist of a designated use or uses for the waters and water quality criteria for
such waters to protect the use or uses.
The 1987 amendments revise Section 303 of the CWA and requires States to adopt
the Federal water quality criteria established for all toxic pollutants
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pursuant to Section 304 if the discharge or presence of toxic pollutants could
reasonably be expected to interfere with the designated uses adopted by the State.
In the absence of numerical criteria, States are required to adopt criteria based
upon biological monitoring or assessment methods consistent with those provided in
Section 304 of the CWA as amended by the WQA.
Section 304 - Information and Guidelines
Under Section 304 of the CWA, EPA is required to develop and publish criteria,
based upon latest scientific knowledge, to be utilized by States in developing water
quality standards. Under Section 304, EPA is also required to develop and publish
regulations establishing guidelines for the technology-based effluent limitations
required in Section 301 of the CWA for categories and classes of point sources of
pollutants .19
Section 304 of the CWA, as amended in 1987, requires States to develop
individual strategies to control toxic pollutant discharge into those waters where
application of effluent limitations for point sources, required under Section 301,
cannot reasonably attain or maintain applicable water quality standards or the
designated use of the waters. In addition, EPA is required to develop and publish
guidance on methods for establishing and measuring water quality criteria for toxic
pollutants on other bases than pollutant-specific criteria, including biological
monitoring and assessment.
Section 306 - National Standards of Performance
Section 306 requires EPA to propose and publish regulations establishing
standards of performance for new source discharges. A new source is defined as a
building, structure, facility, or installation from which there is a discharge, and
the construction of which is started after the publication of proposed national
standards of performance (developed pursuant to Section 306) applicable to the
source.
Section 307 - Toxic and Pretreatment Effluent Standards
Section 307(a) establishes the list of toxic pollutants (commonly referred to
as "priority pollutants") subject to regulation pursuant to the CWA.
Technology-based effluent limitations are developed for the priority pollutants for
categories or classes of point sources. Section 307(b) requires EPA to develop and
promulgate pretreatment standards for the discharge of pollutants into POTWs.
Section 401 - Certification
Any applicant for a Federal license or permit to conduct an operation which
may result in any discharge to navigable waters is required to provide
19 These effluent guidelines are provided in 40 CFR Parts 405-471.
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the Federal permitting agency (e.g., the Army Corps of Engineers) a certification
from the State in which the discharge originates (or EPA on a State's behalf in
certain circumstances). This certification must state that the discharge will comply
with applicable provisions of Sections 301, 302, 303, 306, and 307 of the CWA. If
the certifying authority does not act on a request for certification within the
specified time, concurrence is deemed waived.
Section 402 - National Pollutant Discharge Elimination System
Section 402 of the CWA establishes the National Pollutant Discharge
Elimination System (NPDES) program. All dischargers into navigable waters are
required to obtain a NPDES permit, which incorporates the requirements of sections
301, 302, 306, 307 and 403 of the CWA.20 Section 402 also establishes procedures for
implementing the NPDES program, including requirements for authorizing
State-operated permit programs.
Section 403 - Ocean Discharge Criteria
Section 403 requires EPA to develop and promulgate guidelines for determining
the effects of discharges on the degradation of ocean waters. All discharges to
oceans must comply with these guidelines prior to issuance of a permit under Section
402 of the CWA.
Section 404 - Permits for Dredged or Fill Material
Section 404 establishes the requirements to obtain a permit for the discharge
of dredged or fill material to navigable waters.21 All discharges of dredge and fill
materials must undergo a public interest analysis to determine whether the benefits
reasonably expected to result from the activity outweigh the reasonably foreseeable
detriments. Section 404 also establishes the Secretary of the Army (through the Army
Corps of Engineers) or delegated State the permitting authority, for 1987 CWA
Amendments dredge and fill activities.
1987 CWA Amendments
The enactment of the WQA of 1987 provides amendments and additions to various
sections of the CWA. Other significant amendments with potential application to
CERCLA activities include:
" Establishment of the National Estuary Program,
40 CFR Parts 122-125 provide the implementing regulations for the
NPDES program.
21 40 CFR Part 230 and 33 CFR Parts 320 through 330 provide the
implementing regulations for the Dredge and Fill Program.
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the purposes and policies of which are to maintain and
enhance the water quality in estuaries, considered to
be of great national significance for fish and
wildlife resources.
Clarification of the CWA's prohibition of backsliding
on effluent limitations.
" Authorization for grants to States to implement
nonpoint source management programs, including ground
water quality protection activities.
3. THE SAFE DRINKING WATER ACT
This section describes the Safe Drinking Water Act (SDWA) of 1974, the most
recent amendments to the SDWA made in 1986, and accompanying regulations. The
first part of this section provides an overview of the SDWA, noting its purpose
and structure. The second part of this section provides a summary of the
regulatory requirements under the SDWA that are applicable to CERCLA activities.
The purpose is to provide an overview of the legislative requirements and the
implementing regulations of each law that establish potentially applicable or
relevant and appropriate requirements for CERCLA activities.
3 . 1 OVERVIEW OF THE SDWA
The SDWA was enacted in 1974 in order to assure that all people served by
public water systems would be provided with a supply of high quality water.
The SDWA established a program to require compliance with national drinking
water standards for contaminants that may have an adverse effect on public
health. The SDWA also focused on the removal of contaminants found in water
supplies as a preventive health measure and established programs intended to
protect underground sources of drinking water from contamination.
The SDWA amendments of 1986 established new procedures and deadlines for
setting national primary drinking water standards, established a national
monitoring program for unregulated contaminants, augmented the underground waste
injection control requirements, and established a sole source aquifer
demonstration program and a wellhead area protection program.
The SDWA is structured in five parts:
Part A - Definitions: Provides definitions of key terms used in the SDWA.
Part A - Public Water Systems: Requires EPA to establish maximum
contaminant level goals and promulgate national primary and secondary drinking
water regulations. Part B also provides conditions for giving States the
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primary responsibility for enforcement of standards, establishes prohibitions for
use of lead in water supply systems, and provides terms for variances and
exemptions from national primary drinking water regulations.
Part C - Protection of Underground Sources of Drinking Water: Requires EPA
to publish regulations for State underground injection control programs, for
State programs to establish wellhead protection areas, and for development,
implementation, and assessment of demonstration programs designed to protect
critical areas located within areas designated an sole source aquifers.
Part D - Emergency Powers: Empowers EPA to enforce SDWA regulations to
protect human health upon failure of State and local authorities to do so.
Part E - General Provisions: Establishes general provisions for the
implementation of the SDWA including: assurance of adequate treatment chemicals,
grants for State programs; records and inspection requirements; establishment of
an advisory council; regulation of Federal agencies; judicial review; and
citizens civil actions.
3.2 SDWA REGULATIONS PERTAINING TO CERCLA ACTIVITIES
The following summarizes the SDWA regulation's that may be applicable or
relevant and appropriate to CERCLA response actions.
40 CFR Part 141 - National Interim Primary Drinking Water Regulations
40 CFR Part 141 establishes primary drinking water regulations which are
designed to protect human health from the potential adverse effects of drinking
water contaminants. Both maximum contaminant levels (MCLs) and maximum
contaminant level goals (MCLGs) for specific contaminants are provided. Whereas
MCLs are enforceable standards, MCLGs are secondary standards, and as such are
non-enforceable.
As of July 1987, MCLs have been promulgated for 24 specific chemical (10
inorganics and 14 organic pesticides), total trihalomethanes, certain
radionuclides, and coliform bacteria. MCLGs have been promulgated for eight
organic contaminants and for fluoride. The 1986 SDWA amendments require EPA to
promulgate MCLs for 83 specific contaminants by June 1989.
40 CFR Part 141 also establishes monitoring, reporting, and analytical
requirements for public water systems.
40 CFR Part 142 - National Primary Drinking Water Regulations
Implementation
40 CFR Part 142 sets forth the regulations for the implementation and
enforcement of national primary drinking water standards. In particular,
procedures are provided for variances and exemptions from compliance with
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MCLs. These variances and exemptions apply to public water suppliers. The
requirements for determining the primary enforcement responsibilities of a State
are also provided.
40 CFR Part 143 - National Secondary Drinking Water Regulations
This part establishes National Secondary Drinking Water Regulations which
consist of secondary maximum contaminant levels (SMCLs). SMCLs are set to
regulate contaminants that may affect the aesthetic qualities of drinking water
(e.g., color, odor); however, SMCLs are nonenforceable. There are 12 SMCLs
promulgated.
40 CFR Part 144 - Underground Injection Control Program
40 CFR Part 144 provide requirements for Underground Injection Control
(UIC) Programs and establishes the following classification of wells:
Class I, wells that inject RCRA hazardous or other industrial or
municipal waste beneath the lower most formation containing, within
one-quatter (1/4) mile of the well bore, an underground drinking water
source. An underground source of drinking water is defined as any
aquifer or its portion that supplies a public water system or contains
fever than 10,000 mg/1 total dissolved solids.
Class II, injection wells associated with oil and natural gas
production, recovery, and storage.
Class III, wells that inject fluids for use in extraction of minerals.
Class IV, wells used to inject RCRA hazardous waste into or above a
formation that within one-quarter (1/4) mile of the well, contains an
underground drinking water source. The operation or construction of
Class IV wells is prohibited, and allowed only where the wells are
used to reinject treated ground water as part of a CERCLA cleanup or a
RCRA corrective action.
Class V, wells not considered to be Class I, II, III, or IV.
Various subparts within Part 144 describe the general requirements for the
operation of underground injection wells. These subparts are briefly described
below:
" Subpart B - General Program Requirements
Subpart B provides the general requirements for underground injection
wells including prohibitions of unauthorized injection, prohibition of movement
of fluid into underground sources of drinking water, and requirements for the
discharge of hazardous wastes. Injection into Class IV
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wells is also prohibited except for the reinjection of contaminated groundwater
that has been reinjected into the same formation from which it was drawn pursuant
to CERCLA activities.
Subpart C - Authorization of Underground Injection by Rule
Subpart C authorizes by rule the injection into existing wells for
specified periods of time depending upon the class of well involved. Specific
requirements for authorization by rule are also specified.
" Subpart D - Authorization by Permit
Subpart D establishes the authorizations necessary to permit
underground injection activities.
Subpart E - Permit Conditions
Subpart E provides the conditions which are applicable to all
underground injection activities that require a permit, including corrective
action requirements for the injection into Class I wells.
40 CFR Part 146 - Underglound Injection Control Program: Criteria and
Standards
40 CFR Part 146 sets forth the technical criteria and standards for the UIC
program. In particular Subpart B provides the criteria and standards applicable
to Class I wells including construction, operating, monitoring and reporting
requirements. No criteria and standards currently exist for Class IV wells, which
are banned except in cleanups approved under CERCLA or RCRA.
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DICTIONARY OF ACRONYMS USED IN MANUAL
ACL - Alternate concentration Limits
AOC - Area of Contamination
ARAR - Applicable or Relevant and Appropriate Requirement
BAT - Best Available Technology Economically Achievable
BCT - Best Conventional Pollutant Technology
BDAT - Best Demonstrated Available Treatment Technologies
BMP - Best Management Practices
BOD - Biochemical Oxygen Demand
BPJ - Best Professional Judgment
CAA - Clean Air Act
CAG - Carcinogen Assessment Group
CCWE - Constituent Concentration in Waste Extract
CERCLA - Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (aka Superfund)
COD - Chemical Oxygen Demand
CPF - Carcinogen Potency Factors
CFR - Code of Federal Regulations
CWA - Clean Water Act
DSE - Domestic Sewage Exclusion
EDB - Ethylene Dibromide
EP - Extraction Procedure
EPA - Environmental Protection Agency
FR - Federal Register
FS - Feasibility Study
FWQC - Federal Water Quality Criteria
GLWQA - Great Lakes Water Quality Agreement
GWPS - Ground Water Protection Standard
HEA - Health Affects Advisories
HSWA - Hazardous and Solid Waste Amendments of 1984
IRIS - Integrated Risk Information System
IU - Industrial User
LC50 - Lowest Concentration that Will Kill 50 Percent of Test Organisms
LCRS - Leachate Collection and Removal System
LDR - Land Disposal Restrictions
LPC - Limiting Permissible Concentrations
MCLs - Maximum Contaminant Levels (SDWA)
MCLGs - Maximum Contaminant Level Goals
MPRSA - Marine Protection Research and Sanctuaries Act
NCP - National Contingency Plan
NHPA - National Historic Preservation Act
NOEL - No'd6serVable Effecf'Level
NPDES - National Pollutant Discharge Elimination System
NPL - National Priorities List
NPRM - Notice of Proposed Rulemaking
NTIS - National Technical Information Service
OGWP - Office of Ground-Water Protection
OSC - On-Scene Coordinator
OSW - Office of Solid Waste
OSWER - Office of Solid Waste and Emergency Response
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OWPE - Office of Waste Programs Enforcement
PCB - Polychlorinated Biphenyls
PCS - Permit Compliance System
POTW - Publicly-Owned Treatment Works
PRP - Potentially Responsible Party
RCRA - Resource Conservation and Recovery Act
RFD - Reference Dose
RI/FS - Remedial Investigation / Feasibility Study
RMCL - Recommended Maximum Contaminant Level (renamed MCLG)
ROD - Record of Decisions
RPM - Remedial Project Manager
SARA - Superfund Amendments and Reauthorization Act
SDWA - Safe Drinking Water Act
SI - Site Investigation
SIP - State Implementation Plan (CAA)
SITE - Superfund Innovative Technologies Evaluation
SMCLs - Secondary Maximum Containment Levels
SMOA - Superfund Memorandum of Agreement
SPHEM - Superfund Public Health Evaluation Manual
SSA - Sole Source Aquifer
SWMU - Solid Waste Management Unit
TBC - To Be Considered
TCE - Trichloroethylene
TDS - Total Dissolved Solids
TSS - Total Suspended Solids
UCR - Unit Carcinogenic Risk
UIC - Underground Injection Control
USDW - Underground Source of Drinking Water
WHP - Wellhead Protection Program
WQA - Water Quality Act
WQC - Water Quality Criteria
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