vvEPA
United States
Environmental Protection
Agency
Office of Solid Waste and
Emergency Response
Washington DC 20460
EPA/540/G-89/009
OSWER Directive 9234.1-02
August 1989
Superfund
CERCLA Compliance with
Other Laws Manual:
Part II. Clean Act Act and
Other Environmental
Statutes and State
Requirements
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EPA/540/G-89/009
OSWER DIRECTIVE 9234.1-02
AUGUST 1989
CERCLA COMPLIANCE WITH OTHER LAWS MANUAL
PART II
CLEAN AIR ACT AND OTHER ENVIRONMENTAL STATUTES AND
STATE REQUIREMENTS
INTERIM FINAL
Office of Emergency and Remedial Response
Policy and Analysis Staff
Office of Solid Waste and Emergency Response
U.S. Environmental Protection Agency
Washington, D.C.
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NOTICE
This manual is a companion volume to the CERCLA Compliance With Other
Laws Manual that was made available to the public as a draft, dated
August 8, 1988. That volume should now be considered interim final.
The policies in Part I and Part II of the CERCLA Compliance With Other
Laws Manual are based on policies in the proposed revisions to the
National Oil and Hazardous Substances Pollution Contingency Plan (NCP) ,
which was published on December 21, 1988 (53 FR 51394). The final NCP
may adopt policies different than those in these manuals and should,
when promulgated, be considered the authoritative source.
Development of this part of the guidance was funded by the United State
Environmental Protection Agency under Contract No. 68-01-7090 to ICF
Incorporated.
The policies and procedures set out in this interim final guidance are
intended solely for the guidance of Government personnel. They are not
intended, nor can they be relied upon, to create any rights 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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PART II
TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS iii
LIST OF EXHIBITS ix
ACRONYMS xi
1. INTRODUCTION AND OVERVIEW 1-1
MATRICES OF POTENTIAL CHEMICAL-, LOCATION-, AND ACTION-SPECIFIC
REQUIREMENTS 1-3
2. CLEAN AIR ACT REQUIREMENTS AND RELATED RCRA AND STATE
REQUIREMENTS 2-1
2.0 SOURCES OF AIR EMISSIONS AT UNCONTROLLED HAZARDOUS WASTE
SITES 2-1
2.1 THE CLEAN AIR ACT 2-2
2.1.1 National Ambient Air Quality Standards (NAAQS) . . . 2-4
2.1.1.1 Pre-Construction Review 2-7
2.1.1.2 Attainment Areas 2-8
2.1.1.3 Non-Attainment Area 2-9
2.1.2 National Emissions Standards for Hazardous Air
Pollutants (NESHAPs) 2-9
2.1.2.1 Asbestos NESHAPs 2-9
2.1.2.2 Radionuclide NESHAPs 2-10
2.1.3 New Source Performance Standards (NSPS) 2-11
2.2 AIR EMISSION REGULATIONS UNDER RCRA 2-12
2.2.1 Incinerators 2-12
2.2.2 Land Disposal Facilities 2-12
2.2.3 Other Treatment, Storage, and Disposal Facilities
(TSDFs) 2-12
2.3 STATE AIR TOXIC PROGRAMS 2-13
2.4 COORDINATION BETWEEN CERCLA AND AIR PROGRAM OFFICES FOR
REMEDIAL ACTIVITIES CONDUCTED ON SITE 2-14
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1. STANDARDS FOR TOXICS AND PESTICIDES 3-1
3.0 TOXIC SUBSTANCES CONTROL ACT 3-1
3.0.1 PCB Requirements 3-2
3.0.1.1 TSCA Disposal Requirements 3-2
3.0.1.2 Storage for Disposal 3-5
3.0.1.3 PCB Spill Cleanup Policy 3-6
3.0.1.4 RCRA Land Disposal Restrictions 3-9
3.1 FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT 3-10
3.1.1 FIFRA Requirements 3-11
3.1.1.1 Procedures Not Recommended for Disposal (40
CFR section 165.7) 3-11
3.1.1.2 Procedures Recommended for the Disposal of
Pesticides (40 CFR section 165.8) 3-12
3.1.1.3 Pesticide Control Under Other Statues . . . 3-13
3.1.1.4 Other Manuals 3-13
2. OTHER RESOURCE PROTECTION STATUES 4-1
4.0 OVERVIEW 4-1
4.1 NATIONAL HISTORIC PRESERVATION ACT 4-2
4.1.1 Criteria for Evaluation 4-4
4.1.2 Needs Determination 4-5
4.1.3 Cultural Resource Survey 4-5
4.1.4 Implementing NHPA Requirements during the CERCLA
Cleanup Action 4-6
4.1.4.1 Remedial Investigation/Feasibility Study . 4-6
4.1.4.2 Remedial Design 4-10
4.1.5 Documentation 4-11
4.2 ARCHEOLOGICAL AND HISTORIC PRESERVATION ACT 4-11
4.3 ENDANGERED SPECIES ACT 4-11
4.3.1 Overview of the Endangered Species Act 4-11
4.3.2 ESA Review Procedures 4-12
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4.3.2.1 Determining Whether Endangered Species are
Present 4-12
4.3.2.2 Biological Assessment 4-13
4.3.2.3 Biological Opinion (Formal Consultation) . 4-14
4.3.2.4 Application for Exemptions 4-15
4.3.3 Documentation 4-17
4.3.4 Discussion 4-17
4.4 WILD AND SCENIC RIVERS ACT 4-17
4.4.1 Overview of the Wild and Scenic Rivers Act 4-17
4.4.2 Summary of Wild and Scenic Rivers ARARs for CERCLA
Actions 4-18
4.4.3 Documentation 4-20
4.5 FISH AND WILDLIFE COORDINATION ACT 4-20
4.5.1 Overview of the Fish and Wildlife Coordination Act
of 1934 4-20
4.5.2 Summary of Fish and Wildlife ARARs for CERCLA
Actions 4-20
4.5.3 Documentation 4-21
4.6 COASTAL ZONE MANAGEMENT ACT 4-21
4.6.1 Overview of the Coastal Zone Management Act .... 4-21
4.6.2 Summary of Potential Coastal Zone Management Act
ARARs for CERCLA Activities 4-22
4.6.2.1 On-Site Activities 4-22
4.6.2.2 Off-Site Activities 4-22
4.6.3 Documentation 4-24
4.7 WILDERNESS ACT 4-25
4.7.1 Documentation 4-25
5. STANDARDS, ADVISORIES, AND GUIDANCE FOR THE MANAGEMENT OF RADIOACTIVE
WASTE 5-1
5.0 OVERVIEW 5-1
5.1 EPA PROGRAMS 5-4
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5.1.1 Potential EPA ARARs 5-4
5.1.1.1 40 CFR Part 61: National Emissions
Standards for Hazardous Air Pollutants:
Standards for Radionuclides 5-4
5.1.1.2 40 CFR Part 141: National Interim Primary
Drinking Water Regulations 5-5
5.1.1.3 40 CFR Part 190: Environmental Radiation
Protection Standards for Nuclear Power
Operations 5-5
5.1.1.4 40 CFR Part 192: Health and Environmental
Protection Standards for Uranium and
Thorium Mill Tailings 5-5
5.1.1.5 40 CFR Part 440: Guidelines and New Source
Performance Standards for Ore Mining and
Dressing Point Source Category Effluent
Limitations 5-10
5.1.2 EPA Advisories and Guidance To Be Considered .... 5-10
5.2 NRC PROGRAMS 5-11
5.2.1 Potential NRC ARARs 5-12
5.2.1.1 10 CFR Part 20: Standards for Protection
Against Radiation 5-12
5.2.1.2 10 CFR Part 61: Licensing Requirements for
Land Disposal of Radioactive Waste .... 5-15
5.2.1.3 10 CFR Parts 30, 40, and 70: Domestic
Licensing of Byproduct, Source, and Special
Nuclear Material 5-15
5.2.2 NRC Advisories and Guidance To Be Considered .... 5-16
5.3 DOE PROGRAMS 5-17
6. POTENTIAL ARARs FOR CERCLA ACTIONS AT MINING, MILLING, OR SMELTING
SITES 6-1
6.0 INTRODUCTION 6-1
6.1 SURFACE MINING CONTROL AND RECLAMATION ACT 6-1
6.2 RESOURCE CONVERSATION AND RECOVERY ACT 6-2
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1. CERCLA COMPLIANCE WITH STATE REQUIREMENTS 7-1
7.0 INTRODUCTION 7-1
7.1. CRITERIA FOR DETERMINING IF A REQUIREMENT IS ELIGIBLE TO BE
A STATE ARAR 7-2
7.1.1 Identification and Determination of Promulgated
State Requirements 7-2
7.1.1.1 Criteria That Are To Be Considered (TCBs) . 7-4
7.1.1.2 State Policies 7-4
7.1.1.3 Relationship Between Local Requirements and
State ARARs 7-4
7.1.2 General Procedures for Determining if a Requirement
is "More Stringent" 7-7
7.1.2.1 State Programs That Have Been Federally
Authorized 7-7
7.1.2.2 State Programs That Have Not Been Federally
Authorized 7-8
7.1.2.3 Requirements That Are Not Directly
Comparable 7-9
7.2 AN EXAMINATION OF SEVERAL TYPES OF STATE LAWS 7-10
7.2.1 State Siting Requirements 7-10
7.2.1.1 Overview of Existing Federal Siting
Requirements and Criteria 7-11
7.2.1.2 Eligibility of Siting Requirements as State
ARARs 7-11
7.2.1.3 Summary of State Siting Requirements . . . 7-14
7.2.2 Discharge of Toxic Pollutants To Surface Waters . . 7-26
7.2.3 Antidegradation Requirements for Surface Waters . . 7-28
7.2.4 Antidegradation Requirements for Ground Water . . . 7-30
7.3 THE PROCESS OF COMMUNICATION STATE ARARs 7-30
7.3.1 Procedures for Ensuring Timely Communication of
State ARARs 7-30
7.3.1.1 The Roles of the State 7-30
7.3.1.2 Critical Points in the Remedial Process for
the Identification and Communication of
State ARARs 7-32
7.3.1.3 Dispute Resolution 7-33
7.3.2 Documentation of State ARARs 7-33
7.3.3 Superfund Memorandum of Agreement and ARARs 7-34
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APPENDIX A: POTENTIAL CLEAN AIR ACT ARARs FROM CLEAN AIR ACT PART
C(PREVENTION OF SIGNIFICANT DETERIORATION A-l
A.I PSD CLASSIFICATION AND IMPLEMENTATION A-l
A. 2 APPLICABILITY OF PSD REVIEW A-3
A. 2.1 Stationary Source A-3
A. 2.2 Major Source of Major Modification A-3
A. 2. 3 PSD Area A-8
A. 2.4 Pollutants for Which Area Is PSD A-8
A.2.5 PSD Review Applies to Significant Emissions .... A-9
A. 3 SUBSTANTIVE REQUIREMENTS OF PSD REVIEW A-9
A. 3.1 Best Available Control Technology A-9
A. 3.2 Ambient Air Quality Analysis A-10
A. 3. 3 Other Impacts Analysis A-14
A. 3.4 No Adverse Impact on a Class I Area A-14
A. 3. 5 Other Requirements A-14
A. 4 NON-ATTAINMENT A-14
APPENDIX B: FEDERAL/STATE RELATIONSHIPS UNDER MAJOR ENVIRONMENTAL
STATUES B-l
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LIST OF EXHIBITS
Exhibit
No. Exhibit Page
1-1 SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR
RELEVANT AND APPROPRIATE REQUIREMENTS 1-3
1-2 SELECTED LOCATION-SPECIFIC POTENTIAL APPLICABLE OR
RELEVANT AND APPROPRIATE REQUIREMENTS 1-8
1-3 SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR
RELEVANT AND APPROPRIATE REQUIREMENTS 1-10
2-1 NATIONAL AMBIENT AIR QUALITY STANDARDS 2-3
2-2 HAZARDOUS AIR POLLUTANTS: SOURCES AND STANDARDS (NESHAPs) . . . 2-5
4-1 CULTURAL RESOURCES REVIEW UNDER NHPA AND REMEDY SELECTION UNDER
CERCLA 4-3
4-2 ENDANGERED SPECIES REVIEW UNDER ENDANGERED SPECIES ACT
AND REMEDY SELECTION UNDER CERCLA 4-16
4-3 WILD AND SCENIC RIVERS REVIEW UNDER WILD AND SCENIC
RIVERS ACT AND REMEDY SELECTION UNDER CERCLA 4-19
4-4 COASTAL ZONE MANAGEMENT ACT 4-23
4-5 WILDERNESS ACT 4-26
5-1 HEALTH AND ENVIRONMENTAL PROTECTION STANDARDS FOR URANIUM AND
THORIUM MILL TAILINGS 5-7
5-2 SELECTED NUCLEAR REGULATORY COMMISSION REQUIREMENTS
FOR RADIOACTIVE WASTE MANAGEMENT 5-13
7-1 PROCEDURES FOR DETERMINING ELIGIBILITY OF STATE ARARs 7-5
7-2 METHOD OF IMPLEMENTATION OF STATE SITING CRITERIA 7-13
7-3 APPLICABILITY OF STATE SITING CRITERIA 7-16
7-4 STATE LOCATION CONTROLS 7-18
7-5 AREAS IN WHICH LOCATION OF HAZARDOUS WASTE TSD FACILITIES IS
PROHIBITED OR RESTRICTED BY VARIOUS STATES 7-19
IX
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LIST OF EXHIBITS
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Exhibit
No. Exhibit Page
7-6 SITE HYDROGEOLOGIC AND GEOLOGIC CRITERIA FOR THE
LOCATION OF HAZARDOUS WASTE TSD FACILITIES 7-21
7-7 STATE SETBACK CRITERIA FOR THE LOCATION OF HAZARDOUS
WASTE TSD FACILITIES 7-23
7-8 COMMON STATE SITING CRITERIA 7-25
A-l ALLOWABLE PSD INCREMENTS A-2
A-2 NAMED PSD SOURCE CATEGORIES A-4
A-3 SIGNIFICANT EMISSIONS RATES FOR DETERMINING PSD MAJOR
MODIFICATIONS A-6
A-4 DE MINIMIS AIR QUALITY IMPACTS (PSD APPLICABILITY) A-12
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ACRONYMS USED IN PART II OF THIS MANUAL
ARARs - Applicable or Relevant and Appropriate Requirements
CERCLA - Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (also known as Superfund)
CFR - Code of Federal Regulations
CWA - Clean Water Act
DOD - Department of Defense
DOE - Department of Energy
DOI - Department of Interior
DOT - Department of Transportation
EPA - Environmental Protection Agency
FR - Federal Register
FS - Feasibility Study
HSWA - Hazardous and Solid Waste Amendments of 1984
MCLs - Maximum Contaminant Levels
NCP - National Contingency Plan
NEPA - National Environmental Policy Act
NPL - National Priorities List
NRC - Nuclear Regulatory Commission
OERR - Office of Emergency and Remedial Response
ORP - Office of Radiation Programs
OSC - On-Scene Coordinator
OSW - Office of Solid Waste
OSWER - Office of Solid Waste and Emergency Response
OWPE - Office of Waste Programs Enforcement
PCB - Polychlorinated Biphenyl
PRP - Potentially Responsible Party
RCRA - Resource Conservation and Recovery Act
RI/FS - Remedial Investigation/Feasibility Study
ROD - Record of Decision
RP - Responsible Party
RPM - Remedial Project Manager
SARA - Superfund Amendments and Reauthorization Act of 1986
SDWA - Safe Drinking Water Act
SI - Site Investigation
SMOA - Superfund Memorandum of Agreement
TBC - To Be Considered
TSDF - Treatment, Storage, and Disposal Facility
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ACRONYMS SPECIFIC TO CHAPTERS IN PART II
ACRONYMS FOR CHAPTER 1
ARARs - Applicable or Relevant and Appropriate Requirements
CAA - Clean Air Act
FIFRA - Federal Insecticide, Fungicide, and Rodenticide Act
RP - Responsible Party
RPMs - Remedial Project Managers
TSCA - Toxic Substances Control Act
ACRONYMS FOR CHAPTER 2
BACT - Best Available Control Technology
BDT - Best Demonstrated Technology
CAA - Clean Air Act
CTC - Control Technology Center
LAER - Lowest Achievable Emission Rate
NAAQS - National Ambient Air Quality Standards
NATICH - National Air Toxics Information Clearinghouse
NESHAP - National Emissions Standards for Hazardous Air Pollutants
NSPS - New Source Performance Standards
PCB - Polychlorinated Biphenyl
PM - Particulate Matter
PSD - Prevention of Significant Deterioration
RTP - Research Triangle Park
SIP - State Implementation Plan
TLV - Threshold Limit Values
VOC - Volatile Organic Compound
ACRONYMS FOR CHAPTER 3
CPSC
PCB
OSHA
SPCC
TSCA
Consumer Product Safety Commission
Polychlorinated Biphenyl
Occupational Safety and Health Administration
Spill Prevention Containment and Coutermeasure
Toxic Substances Control Act
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ACRONYMS FOR CHAPTER 4
ACHP
BA
BO
CBRA
CRS
CZMA
DOA
ESA
FWCA
FWS
NHPA
NMFS
NRHP
SHPO
SMOA
WSRA
Advisory Council on Historic Preservation
Biological Assessment
Biological Opinion
Coastal Barriers Resources Act
Cultural Resource Survey
Coastal Zone Management Act
Department of Agriculture
Endangered Species Act
Fish and Wildlife Coordination Act
U.S. Fish and Wildlife Service
National Historic Preservation Act
National Marine Fisheries Service
National Register of Historic Places
State Historic Preservation Office(r)
Superfund Memorandum of Agreement
Wild and Scenic Rivers Act
ACRONYMS FOR CHAPTER 5
AEA - Atomic Energy Act
ALARA - As Low As Is Reasonably Achievable
DCG - Derived Concentration Guide
FEMA - Federal Emergency Management Agency
FUSRAP - Formerly Utilized Sites Remedial Action Program
GJAP - Grand Junction Remedial Action Program
ICRP - International Commission on Radiological Protection
LLRWPAA - Low-Level Radioactive Waste Policy Amendments Act of 1985
LLWPA - Low-Level Waste Policy Act of 1980
MCLs - Maximum Contaminant Levels
NARM - Naturally Occurring and Accelerator-Produced Radioactive Material
NCRP - National Council on Radiation Protection and Measurements
NESHAP - National Emissions Standard for Hazardous Air Pollutants
SFMP - Surplus Facilities Management Program
UMTRAP - Uranium Mill Tailings Remedial Action Program
UMTRCA - Uranium Mill Tailings Radiation Control Act
WL - Working Level
ACRONYMS FOR CHAPTER 6
OSM - Office of Surface Mining
SMCRA - Surface Mining Control and Reclamation Act
UMTRCA - Uranium Mill Tailings Radiation Control Act
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ACRONYMS FOR CHAPTER 7
DER - Department of Environmental Regulation
NPDES - National Pollutant Discharge Elimination System
ONRW - Outstanding National Resource Waters
SIP - State Implementation Plan
SMOA - Superfund Memorandum of Agreement
TBC - To Be Considered
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CHAPTER 1
INTRODUCTION AND OVERVIEW
The purpose of the CERCLA Compliance with other Laws Manual is to assist
Remedial Project Managers (RPMs) in identifying and complying with all
applicable or relevant and appropriate requirements (ARARs) for remedial
actions taken at Superfund sites. This part of the guidance manual addresses
CERCLA compliance with the Clean Air Act and other environmental statutes for
remedial actions.
Under CERCLA §121, remedies selected at Superfund sites must be
protective of human health and the environment and must comply with ARARs.1
Remedial actions taken under CERCLA §§104, 106, or 122 that are conducted
entirely on site do not require Federal, State, or local permits, whether
conducted by EPA, another Federal agency, a State, or a responsible party
(RP). On-site remedies must comply with substantive requirements but need not
comply with the administrative and procedural requirements. On-site remedial
activities covered by the permit exemption includes any activity occurring on
site prior to the response action itself (e.g., activities during the RI/FS).
"On-site" is defined as the areal extent of contamination and all suitable
areas in very close proximity to the contamination necessary for
implementation of the response action. The reason for the permit exemption is
to preserve flexibility and avoid lengthy, time-consuming procedures when
developing and implementing remedial alternatives.
CERCLA actions involving the transfer of hazardous substances or
pollutants or contaminants off site must comply with applicable Federal and
State requirements and are not exempt from formal administrative permitting
requirements. Off-site actions are not governed by the concept of relevant and
appropriate.
CERCLA §121 also requires compliance with State environmental standards.
A discussion of policies and procedures for evaluating State ARARs is
presented in Chapter 7. Although this manual does not discuss in depth each
State's standards, it does outline the criteria used for determining if a
requirement is eligible to be a State ARAR, examines several types of State
laws, and describes the process of communicating State ARARs during the RI/FS
process .
This part of the guidance manual, Part II, describes general procedures
for CERCLA compliance with applicable or relevant and appropriate requirements
in environmental and public health statutes, programs, and policies that are
not covered in Part I (RCRA, CWA, SDWA, and ground-water policies). This part
covers the Clean Air Act (CAA), the Toxic Substances Control Act (TSCA), the
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 extent practicable when conducting removal actions. Chapter 1 of
Part I provides further guidance on ARARs and removal actions, as well as
guidance on identifying ARARs for a Superfund site.
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Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and several other
statutes with potential ARARs. Part II is organized as follows:
! Chapter 1 provides an introduction and overview of this
part of the guidance manual;
! Chapter 2 provides guidance for compliance with CAA
requirements and related RCRA and State requirements;
! Chapter 3 provides guidance for compliance with statutes
that address toxics and pesticides (i.e., TSCA and
FIFRA);
! Chapter 4 provides guidance for compliance with other
resource protection statutes. These statutes generally
cover specific concerns or areas (e.g., endangered
species, historic preservation, and coastal zones);
! Chapter 5 discusses potential ARARs and potentially
useful guidance for cleaning up radioactively
contaminated sites and buildings;
! Chapter 6 provides guidance for compliance with statutes
incorporating standards for mining, milling, or smelting
sites (other than uranium or thorium mines or mills,
addressed in Chapter 4) ;
! Chapter 7 provides guidance on identifying and complying
with State ARARs;
! Appendix A provides guidance for compliance with CAA Part
C (Prevention of Significant Deterioration) requirements;
and
! Appendix B describes the Federal/State relationships
under major Federal environmental statutes.
Exhibits 1-1, 1-2, and 1-3 present potential chemical-, location-, and
action-specific ARARs, respectively, for those statutes discussed in this part
of the guidance manual. Within each exhibit, for the convenience of the
reader, the requirements are organized by the chapter in which they are
discussed in more detail. Remedial Project Managers should use these exhibits
to develop a preliminary list of potential ARARs, then refer to the text for a
full description of the requirement and the site-specific circumstances under
which it may be an actual ARAR for the site. More information on the
definition of each type of ARAR and the methodology for determining ARARs is
presented in Part I, Chapter 1.
1-2
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EXHIBIT 1-1
SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Chemical Name
Requirements
Prerequisites for Applicability
Citation
CHAPTER 1 - CLEAN AIR ACT
NESHAPS
Mercury Not more than 2,300 g/day
reduction
Not more than 11.6 mg/m3 particulate matter, design
and operating requirements
Inspection, maintenance, and housekeeping
No visible emissions
No surfacing with asbestos
No visible emissions
Noti fication, wet and remove friable asbestos
Limitations on concentration of asbestos, no visible
Mercury smelters, chloroalkali plants
New glass manufacturing plants
Primary copper smelters
Arsenic trioxide and mettalic arsenic production
facilities
Asbestos mills
Roadways
Manufacturing plants
Demolition activities
Spraying operations
Clean Air Act (CAA) 40
CFR Part 61
40 CFR Part 61 (CAA)
40 CFR Part 61 (CAA)
40 CFR Part 61 (CAA)
40 CFR Part 61 (CAA)
40 CFR Part 61 (CAA)
BeryiIlium
Vi nyl chlori de
No visible emissions
No asbestos
No visible emissions
No visible emissions
No visible emissions, design/work practice standards
Not more than 10 g/day or 0.01 g/m3 ambient
concentration (with 3 years of monitoring data)
Not more than 10 ppm, equipment standards, work
practice standards
Fabricating shops
Insulation operations
Mill waste disposal sites
Waste disposalmanufacturing, demolition/
renovation, spraying, fabricating
Inactive waste disposal sites for mills,
manufacturing, fabricating
Active waste disposal sites
Extraction plants, ceramic plants, foundries,
incinerators, rocket prope11ant plants, machine
shops
Rocket motor test sites, collection of combustion
products
Ethylene dichloride, vinyl chloride, and vinyl
chloride polymer plants
40 CFR Part 61 (CAA)
40 CFR Part 61 (CAA)
40 CFR Part 61 (CAA)
40 CFR Part 61 (CAA)
40 CFR Part 61 (CAA)
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EXHIBIT 1-1 (Continued)
SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Prerequisites for Applicability
Citation
CHAPTER 1 - CLEAN AIR ACT
NESHAPS
Benzene -1
Design and operation
Design and operation
No visible emissions; operation and maintenance
standards
Fugitive leaks from equipment containing 10%
benzene
DOE facilities, NRC licenses, and non-DOE Federal
facilities, except from doses from radon-220,
radon-222, and their decay products; facilities
regulated under 40 CFR 190-192; and low-energy
accelerator and users of sealed sources.
Elemental phosphorus
Uranium mines
Uranium mill tailings
Coke ovens
40 CFR Part 61 (CAA)
40 CFR Part 61 (CAA)
40 CFR Part 61 (CAA)
40 CFR Part 61 (CAA)
40 CFR Part 61 (CAA)
40 CFR Part 61 (CAA)
NAAQS &
40 CFR Part 50 (CAA)
Lead
40 CFR Part 50 (CAA)
Particulate
matter (PMio)
Not to exceed 0.03 ppm annually.
Not to exceed 0.14 ppm/24-hour period. Not to exceed
0.5 ppm/3-hour period.
-1 NAAQS are translated into source-spedfie requirements in State Implementation Plans (SIPs).
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EXHIBIT 1-1 (Continued)
SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Chemical Name
Requirements
Prerequisites for Applicability
Citation
CHAPTER 4 - MANAGEMENT OF RADIOACTIVE WASTE
Protection of
Drinking Water
Supplies from
Radioactive
Pollutants
Applicable to community water systems, which are Safe Drinking Water Act
defined as public water systems that serve at least (SDWA)
15 service connections used by year-round residents 40 CFR section 141.15
or regularly serve at least 25 year-round
residents.
Discharge of
Radioactive
Pollutants to
Surface Waters
The average annual concentration of beta particle and
photon (i.e., gamma) radioactivity from man-made
radionuclides in drinking water shall not produce an
annual dose equivalent to the total body or any
internal organ greater than 4 mrem.
Best Available Technology:
The concentration of pollutants discharged in
drainage from mines that produce uranium ore
shall not exceed:
10 pCi/1 of dissolved radium-22 6 in any one day
or 3 pCi/1 of dissolved radium-226
Averaged over 30 consecutive days;
Applicable to community water systems, which are 40 CFR section 141.16
defined as public water systems that serve at least (SDWA)
15 service connections used by year-round residents
or regularly serve at least 25 year-round
residents.
Applicable to discharges of radium-226 and
uranium from open-pit or underground mines
from which uranium, radium, and vanadium ores
are produced, including mines that use in-situ
leach methods.
Clean Water Act (CWA)
40 CFR Section 440.33
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EXHIBIT 1-1 (Continued)
SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Chemical Name Requirements Prerequisites for Applicability Citation
CHAPTER 4 - MANAGEMENT OF RADIOACTIVE WASTE
Protection of A variety of different radiation exposure limits are Applicable to all categories of NRC licenses; also Atomic Energy Act (AEA)
Individuals in setfor individuals in restricted areas, including a applicable to Agreement State licenses. 10 CFR sections 20.101
Restricted Areas dose limit of 1.25 rem/ quarter (which is equivalent through 20.104
(i.e., Workers) from to 5 rem/year) to the whole body and radioactivity Applicable to exposures to source, byproduct, and
Radiation Exposure concentration limits for air and water in restricted special nuclear material, as well as to NARM
areas (designed to limit worker exposure to 1.25 released from facilities licensed to possess
rem/quarter). source, byproduct, and special nuclear material.
Protection or
Individuals in
Unrestricted Areas
from Radiation A whole body dose of 0.5 rem/year;
Exposure Applicable to exposures to source, byproduct, and
0.002 rem/hour; special nuclear material, as well as to NARM
released from facilities licensed to possess
0.1 rem in any 7 consecutive days; and source, byproduct, and special nuclear material.
The dose limits in 40 CFR Part 190 for
operations within the uranium fuel
cycle (see Section 4.1.1.3 of Chapter 4
of Part II).
Discharge of Airborne and liquid discharges to unrestricted areas Applicable to all categories of NRC licenses; also 10 CFR section 20.106
Radionuclides to shall not meet radionuclide-speci fie concentration applicable to Agreement State licenses. (AEA)
Unrestricted Areas limits in 10 CFR Part 20, Appendix B, Table II.
(Air and Water) These concentrations are designed to limit radiation Applicable to releases of source, byproduct, and
exposure to members of the public to 0.5 rem/year to special nuclear material, as well as to NARM
the whole body, blood-forming organs, and gonads; 3 released from facilities licensed to possess
rems/year to the bone and the thyroid; and 1.5 source, byproduct, and special nuclear material.
rems/year to other organs. 14/
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EXHIBIT 1-1 (Continued)
SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Chemical Name Requirements Prerequisites for Applicability Citation
CHAPTER 4 - MANAGEMENT OF RADIOACTIVE WASTE
Radioactive Waste A variety of waste disposal requirements are set, Applicable to all categories of NRC licenses; also
Treatment and including those sped fying how licenses may dispose applicable to Agreement State licenses. Applicable
Disposal of licensed material (see Section 4.2.1.1 of Chapter to releases of source, byproduct, and special
4 of Part II), as well as concentration limits for nuclear material.
disposal of radioactive waste into sanitary sewerage
systems, requirements for treatment and disposal by Certain requirements also apply to other
incineration, and sped fie requirements for the radioactive materials, i.e., NARM released from
disposal of radioactively contaminated animal tissue facilities licensed to possess source, byproduct,
and liquid scintillation media. and special nuclear material.
Control of Uranium Control measures shall be designed to ensure that Applicable to certain inactive uranium processing Uranium Mill Tailings
or Thorium Mill releases of radon-222 from residual radioactive sites designated for remedial action under Title I Radiation Control Act
Tailings material to the atmosphere will not exceed an of UMTRCA (see Chapter 4 for more detail). (UMTRCA) 40 CFR section
average (applied overtheentiresurfaceofthe 192.02(b)
disposal site and over at least a one-year period)
release rate of 20 pCi/m2/sec or increase the
average annual concentration of radon-222 in the
atmosphere at or above any location outside the
disposal site by more than 0.5 pCi/1.
considered high relative to recent EPA standards (see discussion in Section 4.2.1.1 of this chapter)
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EXHIBIT 1-2
SELECTED LOCATION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Location
Prerequisites for Applicability
Citation
CHAPTER 1 - CLEAN AIR ACT
New maj or stationary sources shall apply best
available control technology for each pollutant,
subj ect to regulation under the Act, that the
source would have potential to emit in signi fleant
amounts.
Owner or operator of proposed source or
modi fication shall demonstrate that allowable
emissions increases or reductions (including
secondary emissions) will not cause or contribute
to a violation of the NAAQS or applicable maximum
allowable increase over baseline concentrations.
Maj or stationary sources as identi fied in 40 CFR
section 52.21(b)(1)(i)(a) that emits, or has the
potential to emit, 100 tons per year or more of any
regulated pollutant; any other stationary source
that emits, or has the potential to emit, 250 tons
per year or more of any regulated pollutant
Any stationary facility or source of air pollutants CAA Part D, §173(1)
that directly emits, or has the potential to emit,
100 tons per year or more of any air pollutant
(including any maj or emitting facility or source of
fugitive emissions of any such pollutants) . [CAA CAA Part D, §173 (2)
§302 (j ) ] .
All maj or stationary sources owned or operated by
the person in the State are in compliance, or on a
schedule for compliance, with all applicable
emission standards.
CHAPTER 3 - OTHER RESOURCE PROTECTION STATUES
Properties listed in the National Register of
Historic Places, or eligible for such listing.
National Historic
Preservation Act (NHPA)
16 CFR Part 470, et. sec
Critical habitat
of/or an endangered
or threatened species Actions must not threaten the continued existence
of a listed species.
Actions must not destroy critical habitat.
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EXHIBIT 1-2 (Continued)
SELECTED LOCATION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Location
Prerequisites for Applicability
CHAPTER 3 - OTHER RESOURCE PROTECTION STATUES
Wild and Scenic
Rivers
Are
Determine if proj ect will affect the free-flowing
characteristics, scenic, or natural values of a
designated river;
Not authorize any water project or any other
project that would directly or indirectly impact
any designated river without noti fying DOE or
^ -_,_,,_^_ _^_L. ^_^.^u^^^,_,^ ilt^^ ^ ,__ consistent with, to the
maximum extent practicable, State coastal zone
management programs.
Federal agencies must supply the State with a
consistency determination.
The following are not allowed in a Wilderness
area:
commercial enterprises
permanent roads, except as necessary
to administer the area
motor vehicles
motor!zed equipment
motorboat
aircraft
mechani zed transport
structure or buildings
Any river, and the bordering or adjacent land,
designated as "wild and scenic or recreational.
Wetland, flood plain, estuary, beach, dune, barrier
island, coral reef, and fish and wildli fe and their
habitat, within the coastal zone.
Any unit of the National Wildli fe Refuge System.
CHAPTER 5 - MINING, MILLING SMELTING SITES
Surface Mining Sites
Remove and segregate topsoil from site before
remedial action. After cleanup redistribute
original soil on site.
Minimi ze disturbance of the hydrologic balance
within the permitted and adj acent areas.
Implement sediment control measures to minimi ze
erosion and prevent additional contributions of
sediment to streamflow or runoff. Measures
instituted must attain State and Federal effluent
limits.
Applies to all surface coal mining operations except
for non-commercial use, extraction of 250 tons or
less, extraction as an incidental part of
government-financed construction or of mining of
other minerals, or extraction of coal that affects
less than 2 acres (30 CFR section 700.11).
Surface Mining Control
and Reclamation Act
(SMCRA)
30 CFR section 816.22
30 CFR section 816.41
(SMCRA)
30 CFR section 816.41
(SMCRA)
Backfill and grade disturbed areas to approximate
original contour, minimi ze erosion, and achieve a
stable slope.
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EXHIBIT 1-3
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Requirements
Prerequisites for Applicability
CHAPTER 1 - CLEAN AIR ACT
New Source Performance
Standards
Incineration (general)
Storage of Petroleum
Liquids
CHAPTER 2 - TOXICS/PESTICIDES
All Storage Areas ^
Storage facilities must be constructed:
With an adequate roof and walls.
With a floor and curb of impervious
materials.
Without drain valves, floor-drains,
expansion j oints, sewer lines or
other openings.
Above the 100-year flood water
level.
Incinerator burning solid waste, more than 50% of
which is municipal-type waste, for the purpose of
reducing waste volume by removing combustible
matter.
Stationary gas turbines with load heat input equal 40 CFR section 60.332
to or greater than 10.7 gigajoules per hour, based (CAA)
on the lower heating value of the fuel fired.
40 CFR section 60.333
(CAA)
Storage vessel constructed after 6/11/73 and prior
to 5/19/78 having storage capacity greater than
40,000 gallons, storing petroleum liquids with
vapor pressure equal to or greater than 1.5 psia.
Storage vessels constructed after 5/18/78 having
storage capacity greater than 40,000 gallons,
storing petroleum liquids with vapor pressure
equal to or greater than 1.5 psia.
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EXHIBIT 1-3 (Continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Prerequisites for Applicability
Citation
CHAPTER 2 - TOXICS AND PESTICIDES
Temporary Storage (30 days or less)
PCB articles and equipment that are
non-leaking.
Liquid PCB containers containing PCBs
between 50-500 ppm if covered by a
spill prevention, control, and
countermeasure plan.
All Storage Areas
Storage area must be properly marked.
No item of movable equipment used to handle PCBs
that comes into contact with PCBs shall be moved
from the storage area unless it has been
decontaminated under section 761.79.
PCB Storage Prior to Containers must be dated when they are placed in
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EXHIBIT 1-3 (Continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Requirements Prerequisites for Applicability Citation
CHAPTER 2 - TOXICS AND PESTICIDES
Incineration of Combustion requirements:
Liquid PCBs
Either:
Rate and quantity of PCBs fed to the
combustion system shall be measured
and recorded at regular intervals no
longer than 15 minutes.
Flow of PCBs to incinerator must stop
automatically whenever the combustion
temperature drops below specified
temperature.
-1 An approved incinerator (under section 761.70) can be used to destroy any concentration of PCBs; a high-efficiency boiler approved under section
761.61 (a) (2) (iii) can be used for mineral oil dielectric fluid from PCB-contaminated electrical equipment containing PCBs in concentrations greater than or
equal to 50 ppm but less than 500 ppm; and a RCRA-approved incinerator (under section §3005(a)) can be used for PCBs that are not subj ect to the incineration
requirements of TSCA (i.e., at concentrations less than 50 ppm). Except as provided in section 761.75(b)(ii), liquid PCBs shall not be processed into non-
liquid forms to circumvent the high-temperature incineration requirements of section 761.60(a).
1 12
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EXHIBIT 1-3 (Continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Action
Requirements
Prerequisites for Applicability
Citation
CHAPTER 2 - TOXICS AND PESTICIDES
Monitoring must occur:
Incineration of
Liquid PCBs
(continued)
When the incinerator is first used or
modi fled; monitoring must measure for O2,
CO, CO2, Oxides of Nitrogen, HC1, Rcl, PCBs,
Total Particulate Matter.
Whenever the incinerator is incinerating
PCBs, the O2 and CO levels must be
continuously chocked. CO2 must be
periodically checked.
Water scrubbers must be used for HC1 control.
Treatment standards under RCRA land disposal
restrictions (LDRs):
incineration; or
burning in high efficiency boilers. _3/
Incineration of liquid PCBs under the California
List Waste land disposal restrictions, assuming
that HOC wastes are mixed with a RCRA-Listed or
-characteristic waste and total HOC concentration
is equal to or greater than 1,000 mg/kg or PCB
concentration alone is 50 ppm.
Incineration of
Non-Liquid PCBs,
PCB Articles, PCB
Equipment, and PCB
Containers
Same as for liquid PCBs.
Mass air emissions from the incinerator shall be no
greater than O.OOlg PCB per kg of the PCBs entering
the incinerator.
Monitoring is required.
Same as for liquid PCBs.
Incineration of non-liquid PCBs, PCB articles, PCB
equipment, and PCB containers at concentrations of
50 ppm or greater unless specified in 40 CFR
section 761.60 4/
Incineration of non-liquid PCBs regulated as HOCs
under the California List Wastes land disposal
restrictions, provided that HOC wastes are mixed
with a RCRA-Listed or RCRA characteristic waste
and total HOC concentrations equal to or greater
than 1,000 mg/kg.
40 CFR sections 761.70 and
761.180 (TSCA)
40 CFR section 268.42
(TSCA)
1-13
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EXHIBIT 1-3 (Continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Action Requirements Prerequisites for Applicability Citation
CHAPTER 2 - TOXICS AND PESTICIDES
Chemical Landfilling Landfill must be located in thick, relatively Disposal of PCEs and PCB Iterns in a chemical waste
of PCB impermeable soil formation or on soil with high landfill
clay and silt content with:
Soil thickness of 4 foot, or compacted soil Mineral oil dielectric fluid from PCB-
liner thickness of 3 feet. contaminated electrical equipment or other
liquids containing PCBs at a concentration
Permaability (cm/sec), less than IxlO"7 of 50 ppm or greater but less then 500
ppm.
Liquid limit, greater than 30.
PCB Transformers, other PCB articles, PCB
Plasticity Index greater than 15. small capacitors, and PCB containers at
concentrations of 500 ppm or greater.
Synthetic membranes must be used when landfill
conditions cannot fulfill permeability requirement.
Avoid placing landfill in floodplain, shoreline, or
ground-water recharge areas and below the
historical high ground-water table.
Provide surface-water diversion dikes around the
landfill if the site is below the 100-year
flood-water elevation.
Locate landfill in an area of low to moderate
relief.
Monitor ground water and surface water in disposal
area prior to building a landfill.
Analyze all samples for the following parameters:
PCBs
pH
Specific conductance
Chlorinated organics
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EXHIBIT 1-3 (Continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Action
Requirements
Prerequisites for Applicability
Citation
CHAPTER 2 - TOXICS AND PESTICIDES
Chemical Landfilling Install a leachate monitoring system.
of PCBs (continued)
Place containers in landfill without damaging
other containers.
Marking of PCBs
PCB article described in 40 CFR section 761.45
PCB containers containing greater than
50 ppm PCBs, PCB transformers, PCB
Large High-Voltage Capacitors,
equipment containing a PCB transformer
or a PCB Large High-Voltage Capacitor,
PCB Large Low-Voltage Capacitor at
time of removal, electric motors using
PCB coolants, hydraulic systems using
PCB hydraulic fluid, heat transfer
systems using PCBs, PCB article
containers containing any of the
above, storage areas used to store
PCBs and PCB item for disposal.
ALL marks must be an exterior of PCB container and
must be clearly visible.
Open dumping
Open burning
Disposal into any body of water
Those inconsistent with applicable
law.
Federal Insecticide
Fungicide and Rodenticide
Act (FIFRA) 40 CFR
section 165.7
Incinerate pesticide at a specified
temperature/dwell time that will ensure that all
emissions meet requirements of CAA relating to
gaseous emissions.
40 CPR section 165.8 (a)
(FIFRA)
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EXHIBIT 1-3 (Continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Action
Requirements
Prerequisites for Applicability
Citation
CHAPTER 2 - TOXICS AND PESTICIDES
Disposal of
Pesticides
(continued)
Dispose of liquids, sludges, or solid residues
generated by incineration in accordance with
applicable Federal, State, and local pollution
control requirements.
If incineration facilities are not available,
dispose of pesticides by:
Burial in a designated landfill
Well injection, if all other
alternatives are more harmful to the
environment .
Chemically or physically treat pesticides to Incineration ( recommended) of metallo-organic
recover heavy metals then incinerate the pesticides pesticides (except mercury, lead, cadmium, or
in compliance with CAA. arsenic compounds ) .
I f appropriate treatment and incineration are not
available , the pesticides may be :
40 CFR section 165.8(b)
(FIFRA)
Chemically degraded and buried
Stored
Injected into the ground only if there
is no alternative offering more
protection to the environment .
Chemically deactivate pesticide and recover the
heavy metals . I f chemical de activation facilities
are not available , encapsulate the pesticide and
bury it .
Store pesticide if neither deactivation nor burial
are available .
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EXHIBIT 1-3 (Continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Action
Requirements
Prerequisites for Applicability
Citation
CHAPTER 2 - TOXICS AND PESTICIDES
Disposal of Pesticide Incinerate or bury in a designated landfill.
Containers and
Residue
Non-combustible containers must be:
Triple-rinsed.
Combustible containers that formerly held organic
or metallo-organic pesticides, except organic
mercury, lead, arsenic, and cadmium.
Non-combustible containers that formerly held
organic or metallo-organio pesticides (with
exceptions noted above)
40 CFR section 165.9 (b)
(FIFRA)
Returned to a facility for recycling as
scrap metal if in poor condition.
Triple puncture containers to facilitate drainage,
and dispose of in a sanitary landfill.
Labeling of
Pesticides
Label pesticides legibly, and prominently, to show:
.Ingredients;
Warnings and precautionary statements;
Toxicity;
Handling of
Pesticides
Individuals handling certain pesticides must be
State- or Federally-approved applicators
40 CFR section 171.4
(FIFRA)
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EXHIBIT 1-3 (Continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Action Requirements Prerequisites for Applicability Citation
CHAPTER 4 - MANAGEMENT OF RADIOACTIVE WASTES
Discharge of Airborne emissions shall not cause members of the Applicable to airborne emissions from DOE, Clean Air Act (CAA)40 CPR
Radioactive public to receive doses greater than: NRC-licensed, and non-DOE Federal facilities during Part 61, Subparts H and I
Pollutants to Air their operational period. Not applicable to: doses ~
25 mrem/yr to the whole body; or caused-by radon-220, radon-222, and their
respective decay products; facilities regulated
75 mrem/yr to the critical organ. -1 under 40 CFR Parts 190, 191, or 192; and low-energy
accelerators and users of sealed radiation sources.
Best Available Technology:
Discharge of The concentration of pollutants discharged in Applicable to discharges of radium-22 6 and uranium
Radioactive drainage from mines that produce uranium ore shall from open-pit or underground mines from which
Pollutants to Surface not exceed: uranium, radium, and vanadium ores are produced,
Waters including mines that use in-situ leach methods. -1
10 pCi/1 of dissolved radium-22 6 in any
one day or 3 pCi/1 of dissolved
radium-22 6 average over 30 consecutive
days ^
Best Practicable Control Technology:
The concentration of pollutants discharged in
drainage from mines from which uranium, radium, and from open-pit or underground mines from which
vanadium ores are produced shall not exceed the uranium, radium, and vanadium ores are produced,
same concentration criteria noted above for the
Best Available Technology.
-/ A millirem (mrem) = 0.001 rem, where a rem is a measure of dose equivalence for the biological affect of radiation of different types and energies on
people.
-/ Lead agencies are cautioned that the radionuclide NESHAPs are being reexamined subj ect to a voluntary remand and that they may be revised in the future.
1-18
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EXHIBIT 1-3 (Continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Action
Requirements
Prerequisites for Applicability
Citation
CHAPTER 4 - MANAGEMENT OF RADIOACTIVE WASTES
Best Practicable Control Technology:
Discharge of
Radioactive
Pollutants to Surface
Waters (continued)
The concentration of pollutants discharged from
mills shall not exceed the concentration criteria
for radium-22 6 noted above for the Best Available
Technology.
New Source Performance Standards:
The concentration of pollutants discharged in mine
drainage from mines that produce uranium ore shall
not exceed the same concentration criteria noted
above for the Beat Available Technology.
vanadium, including mi11-mine facilities and mines
4 /
using in-situ leach methods.
extraction of uranium and from mines and mills
4 /
using in-situ leach methods.
Discharge of
Radionuclides to
Unrestricted Areas
(Air and Water)
Airborne and liquid discharges to unrestricted
areas shall meet radionuclide-spedfie
concentration limits in 10 CFR Part 20, Appendix B,
Table II. These concentrations are designed to
limit radiation exposure to members of the public
to 0.5 rem/year to the whole body, blood-forming
Applicable to releases of source, byproduct, and
special nuclear material, as well as to naturally
occurring and accelerator-produced radioactive
material (NARM) released from facilities licensed
to possess source, byproduct, and special nuclear
material.
" These dose limits are considered high relative to recent EPA standards (see discussion in Section 4.2.1.1 of Chapter 4 of Part II).
Section 104 (a)(3)(A) of CERCLA as amended by SARA prohibits response to releases "of a naturally occurring substance in its unaltered form or altered
solely through naturally occurring processes or phenomena, from a location where it is naturally found." NARM possessed and used by a nuclear material
licensees, in almost all cases, would not qualify as a naturally occurring substance as it is defined in this section.
-1 These standards are potentially applicable only for CERCLA actions at sites licensed by the NRC, but may be relevant and appropriate to radioactively
contaminated sites not licensed by the NRC.
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EXHIBIT 1-3 (Continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Action
Requirements
Prerequisites for Applicability
Citation
CHAPTER 4 - MANAGEMENT OF RADIOACTIVE WASTES
Protection of Ground
Water from
Radioactive
Contamination
Corrective Action of
Radioactively
Contaminated Ground
Water
Uranium mill tailings shall be managed so as to
conform to the ground-water protection standard in
40 CFR section 264.92, except that for the purpose
of this standard:
Molybdenum, uranium, and thorium are
added to the list of hazardous
constituents referenced in 40 CFR
section 264.93;
Radioactivity concentration limits for
radium and gross alpha particle
activity are added to Table 1 of 40 CFR
section 264.94; and ^-
Detection monitoring programs required
under section 264.98 to establish the
standards required under section 264.92
shall be completed within one year of
promulgation. %J-
If the ground-water standards established under 4 0
CFR section 192.329(a) (2) are exceeded at a
licensed site, a corrective action program as
specified in 40 CFR section 264.100 shall be put
into operation an soon as is practicable, and in no
event later than 18 months after a finding of
exceedance . %J-
<5 pCi/g, no further cleanup is needed;
Between 5 and 15 pCi/g, a decision
concerning the need for further cleanup
should be made based on the volume and
depth of the contamination, as well an
other site-sped fie characteristics
(further guidance from EPA1s ORP should
be sought in these cases); or
Applicable to certain inactive uranium processing
sites designated for remedial action under Title I
of UMTRCA (see Chapter 4 of Part II for more
detail), as well as active commercial uranium and
thorium processing sites licensed by the NRC or
States.
Uranium Mill Tailings
Radiation Control Act
(UMTRCA)
Refer to Chapter 2 of Part I of this guide for guidance on CERCLA compliance with RCRA.
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EXHIBIT 1-3 (Continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Action
Requirements
Prerequisites for Applicability
Citation
CHAPTER 4 - MANAGEMENT OF RADIOACTIVE WASTES
of Uranium or
Hill Tailings
Remedial actions should attempt to achieve an
annual average radon decay product concentration
(including background) of less than 0.02 WL in any
occupied or habitable building. In any case, the
radon decay product concentration shall not exceed
0.03 WL. IV
The level of gamma radiation shall not exceed the
background level by more than 20
microroentgens/hour in any occupied or habitable
building./
Control measures shall be designed to be effective
for up to 1,000 years, to the extent reasonably
achievable, and, in any case, for at least 200
years.
Control measures shall be designed to ensure that
releases of radon-222 from residual radioactive
material to the atmosphere will not exceed an
average (applied over the entire surface of the
disposal site and over at least a one-year period)
release rate of 20 pCi/m2/ sec or increase the
average annual concentration of radon-222 in the
atmosphere at or above any location outside the
disposal site by more than 0.5 pCi/1.
At the and of the closure period, disposal areas
shall be designed to be effective for up to 1,000
years, to the extent reasonably achievable, and, in
any case, for at least 200 years.
At the end of the closure period, disposal areas
shall be designed to ensure that releases of
radan-222 from residual radioactive material to the
atmosphere will not exceed an average (applied over
the entire surface of the disposal site and over at
east a one-year period) release rate of 20
pCi/m2/ sec.
Applicable to certain inactive uranium processing
sites designated for remedial action under Title I
of UMTRCA (see Chapter 4 of Part II for more
detail).
I A working level, or WL, means any combination of short-lived radon decay products (through polonium-214) in one liter of air that will result in the
emission of alpha particles with a total energy of 130 billion electron volts. An activity concentration of 10 picocuries per liter of radon-222 in
equilibrium with its daughters corresponds approximately to one WL.
ii/ A microroentgen = 1 x 10"6 roentgen, where a roentgen is a unit of exposure to gamma or X-rays, equivalent to an absorbed dose in tissue of approximately
0.9 rad. . A rad is a measure of the energy imparted to matter by ionizing radiation, defined as 100 ergs/g.
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EXHIBIT 1-3 (Continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Action
Requirements
Prerequisites for Applicability
Citation
CHAPTER 4 - MANAGEMENT OF RADIOACTIVE WASTES
Closure of Uranium
and Thorium Mill
Tailings Sites
Radioactive Waste
Treatment and
Disposal
Closure and Post-
closure Observation
and Maintenance of a
Low-level Radioactive
Waste Disposal Site
At the and of the closure period, disposal areas
shall each comply with the closure performance
standard in 40 CFR section 261.111 with respect to
non-radiological hazards (see Exhibit 1-3 in Part I
for more discussion on 261.111).^/
A variety of waste disposal requirements are set,
including those sped fying bow licensees may
dispose of licensed material (see Section 4.2.1.1
of Chapter 4 of Part II), as well as concentration
limits for disposal of radioactive waste into
sanitary sewerage systems, requirements for
treatment and disposal by incineration, and
sped fie requirements for the disposal of
radioactively contaminated animal tissue and liquid
scintillation media.
Closure designs must assure that long-term
performance objectives of 10 CFR sections 61.41-
61.44 (see below) are met, taking into account
site-sped fie geologic, hydro logic, and other
conditions.
Applicable to all categories of NRC licensees; also
applicable to Agreement State licensees. Applicable
to releases of source, byproduct, and special
nuclear material.
Certain requirements also apply to other
radioactive materials, i.e., NARM released from
facilities licensed to possess source, byproduct,
and special nuclear material.
Applicable to NRC-licensed land disposal facilities
that receive low-level wastes from others (i.e.,
commercial disposal facilities).
10 CFR section 61.2E
(AEA, LLWPA and
LLRWPAA)^/
. maintained for 5 years
i, _L^nyc_L or shorter periods may be allowed) and then
responsibility is transferred to a Federal or State
government agency, which will implement
institutional care requirements in 10 CFR section
61.23(g).
Uranium and thorium mill tailings
(addressed in 10 CFR Part 40 and 40 CFR
Partl92); and
Radioactive waste by an individual
licensee, as provided for in 10 CFR
Part 20.
10 CFR sections 61.29 and
61.30 (AEA, LLWPA, and
LLRWPAA)
US Refer to Chapter 2 of Part I of this guide for guidance on CERCLA compliance with RCRA.
12/ Part 61 was promulgated primarily under the authority of the Atomic Energy Act, but two other statutes from which authority was derived are the
Low-Level Waste Policy Act of 1980 (LLWPA) and the Low-Level Radioactive Waste Policy Amendments Act of 1985 (LLRWPAA).
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EXHIBIT 1-3 (Continued)
SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Action
Requirements
Prerequisites for Applicability
Citation
CHAPTER 4 - MANAGEMENT OF RADIOACTIVE WASTES
Siting, Operation,
Decontamination,
Decomissioning, and
Reclamation of
Uranium Mills and
Mill Tailings
A variety of performance objectives are
established, including standards that set limits on
radiation exposures by members of the public,
protect people from inadvertently intruding onto a
radioactive waste site, and stabilize the site
after closure. The public exposure limits are the
same dose limits as in 40 CFR Part 190.
Same prerequisites as sped fied above for 10 CFR
Part 61, except that existing technical
requirements are applicable only to the
near-surface disposal of radioactive waste. A near
surface disposal facility is defined as one that
disposes of waste in or within the upper 30 meters
of the earth's crust.
Applicable to active uranium or thorium mills and
inactive mills that are not covered under the
remedial action program of UMTRCA'S Title I (see
Chapter 4 of Part II for more discussion on this
remedial action program).
10 CFR sections 61.41
through 61.44 (Subpart C
of Part 61) (AEA, LLWPA,
LLRWPAA)
10 CFR sections 61.50
through 61.59 (Subpart D
of Part 61) (AEA, LLWPA,
and LLRWPAA)
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CHAPTER 2
CLEAN AIR ACT REQUIREMENTS AND RELATED RCRA AND STATE REQUIREMENTS
2.0 SOURCES OF AIR EMISSIONS AT UNCONTROLLED HAZARDOUS WASTE SITES
Air pollution problems at uncontrolled hazardous waste sites are usually
the result of emissions of gas or particulate matter (e.g., dust)-1 Such
emissions may be released through a stack, chimney, vent, or other
functionally equivalent opening. Emissions that do not pass through such
openings are considered to be "fugitive" emissions.
Gaseous emissions from uncontrolled hazardous waste sites may be due to
the vaporization of liquids, thermal destruction of organics, venting of
entrained gases, or chemical and biological reactions with solid and liquid
waste material. Volatile organic compounds (VOCs) may be released slowly but
continuously from surface impoundments or landfills. Methods for controlling
the release of gaseous emissions into the atmosphere include placement of
covers, to control volatile emissions from impoundments, and the use of active
gas collection systems, to collect and control gases generated in landfills.
Emissions of particulate matter at uncontrolled hazardous waste sites
are likely to be caused by incineration or by sources of fugitive dust
emissions, such as wind erosion of exposed waste materials or cover soil.
Commonly used measures for controlling fugitive dust emissions from inactive
waste piles and from active cleanup sites include use of chemical dust
suppressants, wind screens, water spraying, and other dust control measures
commonly used during construction.
The following activities, commonly performed during a CERCLA cleanup
action, may be sources of air emissions:
Air stripping (used to volatilize contamination both
in ground water and in soil);2
Thermal destruction (e.g., incineration), which may
produce emissions through volatilization of organic
contaminants and through volatilization or suspension
of particulate matter into the stack gases;
Handling of contaminated soil, including loading,
unloading, compaction of material in a landfill, and
transfer operations (e.g., digging and relocating of
1 Uncontrolled hazardous waste sites include some sites where Superfund
actions are already underway.
2 EPA has developed a policy for control of emissions from air stripper
operations at CERCLA sites, entitled Control of Air Emissions from Superfund
Air Strippers at Superfund Groundwater Sites, June 15, 1989 (OSWER Directive
9355.0-28) .
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soil) can lead to volatilization of organic contaminants
and wind entrainment of particulates;
Gaseous waste treatment (e.g., flaring used, for example,
when capping and venting a site, usually abandoned or
inactive landfills); and
Biodegradation, especially when aeration of liquids is
involved.
Many of the sources of gaseous and particulate matter emissions may be
subject to Federal or State regulations. In addition, control devices and some
cleanup activities that increase the amount of emissions, or change the type,
e.g., flares, air strippers, or excavation, may be considered sources subject
to air emission requirements contained in the CAA, or RCRA.3 The remainder of
this chapter discusses the ARARs related to air emissions that may be
triggered by remedial activities at CERCLA sites. The CAA, RCRA, and State
requirements are discussed in turn.
2.1 THE CLEAN AIR ACT
The objective of the CAA is to protect and enhance the quality of the
nation's air resources in order to promote and maintain public health and
welfare and the productive capacity of the population. The CAA achieves this
objective by regulating emissions into the air. Controls on stationary and
mobile sources of emissions are implemented through combined Federal, State,
and local programs. Pursuant to the CAA, EPA has promulgated National Ambient
Air Quality Standards, National Emission Standards for Hazardous Air
Pollutants, and New Source Performance Standards, any of which may apply to
the source, depending on the pollutant involved. These potential ARARs are
described in detail below.
National Ambient Air Quality Standards for Criteria Pollutants.
Pursuant to the CAA §109, EPA promulgates national ambient air quality
standards (NAAQS) (see 40 CFR Part 50 and Exhibit 2-1). The attainment and
maintenance of these primary and secondary standards are required to protect
the public health (allowing an adequate margin of safety) and the public
welfare, respectively. EPA has promulgated NAAQS for the following six
pollutants (called "criteria pollutants"): particulate matter equal to or less
than 10 microns particle size (PM10), sulfur dioxide, carbon monoxide, ozone
(which results from the photochemical oxidation of VOCs), nitrogen
3 Many remedial technologies, such as air strippers, soil gas evacuation
systems, methane flares, in situ vitrification systems, and ion exchange resin
systems have radioactive byproducts. These systems often remove and emit
naturally occurring radioactive materials, such as radon-220 and radon-222, as
well as the chemical contaminants, especially in some geological locations
with high concentrations of radioactive materials. See Chapter 5 of Part II
for potential ARARs for radioactive materials.
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EXHIBIT 2-1
NATIONAL AMBIENT AIR QUALITY STANDARDS3
(NAAQS)
Criteria
Pollutant
Carbon Monoxide
Lead
Nitrogen dioxide
Particulate Matter
(PM10)
Ozone
Sulfur oxides
Primary
Standards
9 ppm
35 ppm
1 . 5 g/m3
0.053 ppm
50 g/m3
150 g/m3
0.12 ppm
0.03 ppm
0.14 ppm
Averaging Time
8-hourb
l-hourb
Quarterly average
Annual (arithmetic mean)
Annual (arithmetic mean)0
24-hourd
l-houre
Annual (arithmetic mean)
24-hourb
3-hourb
Secondary
Standards
None
Same as primary
Same as primary
Same as primary
Same as primary
0 . 5 ppm
a States translate these ambient standards into source-specific emission
limitations in State Implementation Plans.
bNot to be exceeded more than once per year.
c The standard is attained where the expected annual arithmetic mean
concentration, as determined in accordance with Appendix K (52 FR 24667, July
1, 1987), is less than or equal to 50 g/m3.
d The standard is attained when the expected number of days per calendar year
with a 24-hour average concentration above 150 g/m3 is equal to or less than
1.
e The standard is attained when the expected number of days per calendar year
with maximum hourly average concentrations above 0.12 ppm is equal to or less
than 1.
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dioxide, and lead. Primary standards are set at levels to protect public
health. Secondary standards are set at levels to protect public welfare, which
includes wildlife, climate, recreation, transportation, and economic values.
National Emission Standards for Hazardous Air Pollutants
Pursuant to the CAA §112, EPA identifies pollutants for which no ambient
air quality standard exists but that cause or contribute to air pollution that
may reasonably be anticipated to result in an increase in mortality or in
serious irreversible, or incapacitating reversible, illness. EPA first "lists"
a pollutant as hazardous and then establishes emissions standards for source
types (i.e., industrial categories) that emit that pollutant, known as
national emissions standards for hazardous air pollutants (NESHAPs). NESHAPs
have been promulgated for specific source types emitting the following
pollutants: arsenic, asbestos, benzene, beryllium, mercury, radionuclides, and
vinyl chloride (see 40 CFR Part 61 and Exhibit 2-2). Coke oven emissions have
also been listed as a hazardous air pollutant but a NESHAP for such emissions
has not yet been finalized.
New Source Performance Standards for Criteria and Designated
Pollutants
Under the CAA §111, EPA promulgates new source performance standards
(NSPS) for CFRtain classes of new stationary sources (e.g., industrial
categories) of air pollution (listed at 40 CFR Part 60). Section 111(d) of the
CAA, however, requires that, for designated pollutants, States must regulate
existing sources.4 The NSPS limit the emissions of a number of different
pollutants, including the six criteria pollutants and the following three
designated pollutants: fluorides, sulfuric acid mist, and total reduced sulfur
(including H2S) .
2.1.1 National Ambient Air Quality Standards (NAAQS)
The primary and secondary standards for criteria pollutants (i.e.,
NAAQS) are identified at 40 CFR Part 50 (see Exhibit 2-1). The NAAQS for some
criteria pollutants can include both short-term and long-term averaging times
(e.g., 3-hour, 24-hour, and annual standards for sulfur oxides). These
standards do not apply directly to source-specific emissions limitations;
rather, they are national limitations on ambient concentrations intended to
protect health and welfare.
Under the CAA §107, each State has the primary responsibility for
assuring that NAAQS are attained and maintained. Section 110 requires each
State to adopt and submit to EPA for approval a plan for the implementation,
maintenance, and enforcement of the NAAQS. EPA approves a State Implementation
Plan (SIP) or portion thereof when it meets the requirements of the CAA
§110(a)(2). Upon EPA
4 Pollutants that are regulated under NSPS, and for which EPA has
promulgated neither NAAQS or NESHAPS, are referred to as designated
pollutants.
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EXHIBIT 2-2
HAZARDOUS AIR POLLUTANTS:
SOURCES AND STANDARDS3
(NESHAPs)
Hazardous
Pollutants
Sources
Standards
Mercury
Asbestos
Mercury smelters, choroalkali
plants
Sewage sludge incinerators/dryers
Asbestos mills
Roadways
Manufacturing
Demolition
2,300 g/day
3,200 g/day
No visible emissions
No surfacing with asbestos
No visible emissions
Notification, wet and remove
friable asbestos
Beryllium
Vinyl chloride
Spraying
Fabrication
Insulation
Mill waste disposal
Waste disposalmanufacturing,
demolition/renovation, spraying,
fabricating
Inactive waste disposal sites for
mills, manufacturing, fabricating
Active waste disposal sites
Extraction plants, ceramic plants,
foundries, incinerators, rocket
propellant plants, machine shops
Rocket motor test sites, collection
of combustion products
Ethylene dichloride plants
Vinyl chloride plants
Vinyl chloride polymer plants
Limitations on concentrations
of asbestos, no visible
emissions
No visible emissions
No asbestos
No visible emissions
No visible emissions
No visible emissions,
design/work practice
standards
No visible emissions,
design/work practice
standards
10 g/day or 0.01 g/m3 ambient
concentration (with 3 years
of monitoring data)
2 g/hr, maximum lOg/day
10 ppm, equipment standards,
work practice standards
10 ppm
10 ppm
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EXHIBIT 2-2 (Continued)
HAZARDOUS AIR POLLUTANTS:
SOURCES AND STANDARDS3
(NESHAPs)
Hazardous
Pollutants
Sources
Standards
Benzene13
Arsenic13
Radionuclidesb
Radon 222
Coke oven
emissions
Fugitive leaks from equipment
containing >.10% benzene
Glass manufacturing
Primary copper
Arsenic trioxide and metallic
arsenic production
DOE facilities
NRC facilities
Elemental phosphorus
Uranium mines
Uranium mill tailings
Coke ovens (proposed 4/23/87)
No detectable emissions
(approx. 500 ppm.)
Existing: 2.5 Mg/year or 85%
control
New: 0.4 Mg/year or 85%
control
11.6 mg/m3 particulate
matter
Inspection, maintenance, and
housekeeping
25 mrem/year (whole body)0
75 mrem/year (any organ)
25 mrem/year (whole body)
75 mrem/year (any organ)
21 Ci/yeard
Design and operation
Design and operation
Visible emissions and operating
and maintenance requirements
a 40 CFR Part 61
b The NESHAPs for arsenic, benzene, and radionuclides are being reexamined and may be
revised as a result of a July 1987 court ruling on vinyl chloride NESHAPs. The court
required EPA to first consider only human health in determining a safe level of risk, and
only then consider costs and technical feasibility in establishing an ample margin of
safety.
c mrem - millirem
d Ci - curie
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approval, the SIP becomes Federally enforceable. Thus, State requirements can
become Federal requirements by means of the SIP approval process.
As discussed in the section below, only "major sources" are subject to
requirements related to attainment of NAAQS. In general, emissions from CERCLA
activities are not expected to qualify as "manor."
Of course, in addition to NAAQS, the States may also adopt more
stringent standards or standards with additional averaging times (including
more stringent definitions of "major sources"). Both State requirements
approved through the SIP process and more stringent State standards issued
under State law are potential ARARs for Superfund sites. Moreover, States may
delegate authority to Regional or local air programs for SIP requirements. Any
Regional or local air program requirements that are a part of a SIP under the
CAA are considered potential ARARs.5
2.1.1.1 Pre-Construction Review
In general, new and modified stationary sources of air emissions must
undergo a pre-construction review. Pre-construction reviews are conducted by
EPA, the State, or the local air pollution control agency (40 CFR sections
51.160 through 51.164) to determine whether the construction or modification
of any stationary source will interfere with attainment or maintenance of
NAAQS or will fail to meet other new source review requirements, including
NESHAPs and NSPS, which would result in a denial of a permit to construct. The
scope and extent of the review, including the extent and types of pollution
control required and possible exemptions for de minimis (i.e., low level)
emissions, varies according to Federal or State requirements. Examples of
pollution controls that may be required for CERCLA activities include vapor
recovery on air strippers, controls on emissions of particulates from
incinerators, and controls on sources of fugitive particulate emissions. SIPs
may require some version of best available control technology (BACT) on
particular types of emission in attainment/unclassified areas, Lowest
Achievable Emission Rates (LAER), or emission offsets in non-attainment areas,
(see Prevention of Significant Deterioration and non-attainment sections in
Appendix A).
Although CERCLA $121(e) exempts facility owners/operators from having to
obtain permits for on-site remedial activities, the substantive requirements
and conditions that would otherwise be included in the permit must be met. It
is the responsibility of the RPM, through the Superfund process, to identify
and to comply with these requirements (see Section 2.4 below for suggestions
regarding how EPA's Superfund and Air offices can work together to determine
these requirements).
The permitting process related to attainment of NAAQS applies only to
"major" sources of air emissions. Thus, requirements related to attainment of
NAAQS are ARARs only when the remedial activity at a CERCLA site is a major
Local regulatory agencies' rules are not always a part of the State's
SIP. Under these circumstances, such rules are not potential ARARs but should
be considered in developing a protective remedy.
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source of emissions, considering the aggregate of all source emissions at the
site. Generally, it is not anticipated that emissions from CERCLA activities
would qualify as "major." (The definition of "major source" differs for
attainment and non-attainment areas. See discussion below and Appendix A for
EPA definitions of major sources under the CAA.) For major sources, different
requirements will be triggered depending on whether the new modified
stationary source is located in an attainment or non-attainment area.
Attainment and non-attainment areas are designated in 40 CFR Part 81.
2.1.1.2 Attainment Areas
The Prevention of Significant Deterioration (PSD) requirements for
attainment areas apply to new major stationary sources and major modifications
in areas designated as being in attainment of the NAAQS for criteria
pollutants. The PSD requirements for attainment areas also apply in areas
where no data exist and the area is defined as unclassified. Regions
throughout the country are designated as attainment or non-attainment areas
for each of the criteria pollutants. Part C of the CAA requires SIPs to
contain "adequate provisions" for the prevention of significant deterioration
(the PSD program) of air quality in an attainment (or unclassified) area,
i.e., a "clean" area whose air quality is better than that required by the
NAAQS. In general, the purpose of the PSD program is to ensure that air
quality in attainment areas does not significantly deteriorate, while a margin
for future industrial growth is maintained. PSD areas do not necessarily have
the same boundaries as air quality control regions.
"Major" new sources or "major" modifications to existing sources must
meet PSD requirements and obtain PSD permits before beginning construction.
Pursuant to §121(e), a CERCLA response action taking place entirely on site is
exempt from the requirement to obtain a permit. However, the action must
comply with all substantive requirements of a PSD review.
Under the PSD program, a CERCLA site would not be considered a major
source unless it was expected to emit 250 tons or more per year of any
regulated pollutant (or the site contains CFRtain specific types of
facilities, such as an incinerator or a chemical processing plant, for which
the threshold is 160 tons per year). SIP or other State requirements may have
different ton per year thresholds for applying PSD requirements. PSD
regulations require that the source install and operate the BACT for Certain
pollutants. The regulations also ensure that the source will not cause or
contribute to violations of the NAAQS or PSD increments for sulfur dioxide,
nitrogen dioxides, and particulates; will not impair visibility or adversely
impact soils or vegetation; and will not cause adverse impacts on the air
quality-related values of certain wilderness areas and national parks.6
Increments refers to the maximum allowable increase of the pollutant
in an attainment area. More detail on the potential applicability of PSD
requirements is provided in Appendix A.
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2.1.1.3 Non-Attainment Areas
An area may be designated non-attainment for any of the NAAQS. Non-
attainment area permits are issued under State or local jurisdiction. A CERCLA
site would not be considered a major source unless its emissions equalled or
exceeded 100 tons or more per year of the pollutant for which the area is
designated non-attainment. (SIP or other State requirements may have different
thresholds.) Sources emitting a non-attainment pollutant must meet the lowest
achievable emission rate (LAER). In addition, the SIP must contain a growth
allowance or the source must provide an emissions offset (i.e., offset the
quantity of the source's emissions by reducing emissions of the non-attainment
pollutant emanating from one of its own operations or from an unrelated
source). The program also provides that a permit may not be issued unless all
other sources owned or operated by the permit applicant in the State are in
compliance with the SIP. A given area can be designated an attainment area for
one of the criteria pollutants and a non-attainment area for different
criteria pollutant.
2.1.2 National Emissions Standards for Hazardous Air Pollutants
(NESHAPs)
Section 112 of the CAA directs EPA to publish, and periodically to
revise, a list of hazardous air pollutants for which it intends to establish
emission standards, and to establish emission standards for those pollutants.
Hazardous air pollutants are those for which no ambient air quality standard
exists, but which cause, or contribute to, air pollution that may reasonably
be anticipated to result in an increase in mortality or an increase in serious
irreversible, or incapacitating reversible, illness. The statute directs EPA
to establish standards at the level that provides an ample margin of safety to
protect the public health from such hazardous air pollutants. The standards
are referred to as national emissions standards for hazardous air pollutants
(NESHAPs), listed in 40 CFR Part 61 (see Exhibit 2-2).
NESHAPs, like NSPS, are promulgated for emissions of particular air
pollutants from specific sources (e.g., inorganic arsenic emissions from glass
manufacturing plants). NESHAPs are not generally applicable to Superfund
remedial activities because CERCLA sites do not usually contain one of the
specific source categories regulated. Moreover, NESHAPs as a whole are
generally not relevant and appropriate because the standards of control are
intended for the specific type of source regulated and not all sources of that
pollutant. Possible exceptions to this are the asbestos and radionuclide
NESHAPs, which are discussed in the next two sections. However, part of a
NESHAP may be relevant and appropriate to a CERCLA site. For example, the
vinyl chloride NESHAP, which applies to vinyl chloride and polyvinyl chloride
manufacturing plants, sets an emissions level for strippers. This portion of
the NESHAP would only be applicable to a CERCLA air stripper if the stripper
fell into the category of a manufacturing plant. This same standard may be
relevant and appropriate, however, for any CERCLA air stripper producing vinyl
chloride emissions.
2.1.2.1 Asbestos NESHAPs
The NESHAPs for asbestos may, in some circumstances, be ARARs for the
cleanup of Certain kinds of asbestos waste. Subpart M of 40 CFR Part 61
establishes standards for inactive waste disposal sites for asbestos mills and
manufacturing
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and fabricating operations (40 CFR section 61.153), for active waste disposal
sites (40 CFR section 61.156), and for disposal of asbestos-containing waste
from demolition and renovation operations (40 CFR section 61.152). Although
not applicable to CERCLA sites, requirements in these sections may be relevant
and appropriate to Superfund cleanup activities when they are sufficiently
similar to the site situation and appropriate to the circumstances of the
release.
The asbestos NESHAPs also list acceptable procedures for asbestos
emissions control for demolition of buildings or equipment containing friable
asbestos material (40 CFR section 61.147). These requirements may be ARARs if
the Superfund cleanup were to involve, for example, demolition of an abandoned
building containing asbestos.
2.1.2.2 Radionuclide NESHAPs
The radionuclide NESHAPs are presented in five different subparts of
Part 61, with each subpart addressing a different source category as shown
below:7
Subpart B applies to active underground uranium mines;
Subpart H applies to certain facilities owned or operated
by DOE;
Subpart I applies to Certain NRC-licensed facilities
(including Agreement State licensees) and facilities
owned or operated by any Federal agency other than DOE;
Subpart K applies to calciners and nodulizing kilns at
elemental phosphorus plants; and
Subpart W applies to NRC-licensed uranium mill tailings
sites during their operational period.
Subparts H and I limit radiation doses that can be received by members of
the general public as a result of airborne emissions from DOE facilities and
NRC-licensed/non-DOE Federal facilities, respectively. Exhibit 1-1 and Chapter 5
of Part II of this guidance manual discuss the specific radiation dose limits and
their prerequisites for applicability. The requirements in Subparts H and I would
be applicable to airborne emissions of radionuclides during the cleanup of sites
at DOE facilities, NRC-licensed facilities, and non-DOE Federal (e.g., DOD)
facilities. It is important to clarify however, that these subparts would not be
applicable or relevant and appropriate for airborne emissions from residual
contamination after cleanup, when the
Lead agencies are cautioned that the existing radionuclide NESHAPs, as
well as other NESHAPs, may change in form or substance as a result of a voluntary
remand to be consistent with the July 1987 vinyl chloride ruling. The Agency will
revise NESHAPs only to consider human health when setting a "safe" or
"acceptable" level of risk and account for the costs and technological
feasibility only when determining the margin of safety.
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facility is no longer in operation (the standards were developed to limit
radiation doses caused by operations that yield a beneficial product).
Subparts B and W do not establish radionuclide emission standards, but
rather establish work practices to limit emissions of radon-222. For example,
Subpart B requires an owner or operator of an active underground uranium mine to
install and maintain bulkheads (air restraining barriers) to control radon from
abandoned and temporarily abandoned areas of the mine. Subpart W requires phased
or continuous disposal for all new tailings impoundments at licensed uranium mill
sites during their operational period. Neither of these subparts would apply to
CERCLA responses. The subparts, however, may be relevant and appropriate if the
CERCLA response occurs at an underground uranium mine or at a uranium mill site.
Finally, Subpart K applies only to emissions of polonium-210 from calciners
and nodulizing kilns at elemental phosphorus plants. Because such emissions are
not likely to occur during a CERCLA response action, Subpart K is not likely to
be applicable to CERCLA responses and probably would not even be relevant and
appropriate.
2.1.3 New Source Performance Standards (NSPS)
Section 111 of the CAA requires EPA to promulgate standards for new sources
of air emissions. The purpose is to ensure that new stationary sources are
designed, built, equipped, operated, and maintained to reduce emissions to a
minimum. The CAA requires EPA to promulgate standards for categories of
stationary sources that emit particular pollutants that cause, or contribute
significantly to, air pollution that may reasonably be anticipated to endanger
public health or welfare.8 The emissions control technology on which the New
Source Performance Standards (NSPS) are based is the best demonstrated technology
(BDT). BDT is the degree of emission limitation achievable through application of
the best technological systems of continuous emission reduction that (taking into
consideration the cost of achieving such emission reduction, any non-air-quality
health and environmental impacts, and energy requirements) EPA determines by
regulation has been adequately demonstrated.
Since NSPS are source-specific requirements, they are not generally
considered applicable to Superfund cleanup actions. However, an NSPS may be
applicable if the facility at the Superfund site is a new source subject to NSPS
(e.g., an incinerator), or an NSPS may be considered relevant and appropriate if
the pollutant emitted and the technology employed during the cleanup action are
sufficiently similar to the pollutant and source category regulated by an NSPS
that they are well-suited to the circumstances of the release at the CERCLA site.
For example, there is an NSPS for particulate emissions from incinerators with a
charging rate of 50 tons/day that are used for burning solid waste, more than 50
percent of which is municipal type waste (40 CFR section 60.50). If a cleanup
action will involve the use of an incinerator at a municipal landfill, this NSPS
should be evaluated to
Many States have the authority to enforce both NSPS and NESHAPs.
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determine if it is an ARAR (see Part I, Chapter 1 for the methodology for
determining ARARs).
2.2 AIR EMISSION REGULATIONS UNDER RCRA
Existing RCRA regulations covering hazardous waste air emissions are
limited to controls on incinerators and requirements for controlling windblown
fugitive particulate matter from landfills, waste piles, and land treatment
facilities. However, a number of forthcoming RCRA regulations will address air
emissions from hazardous waste treatment, storage, and disposal facilities
(TSDFs) in a more comprehensive manner. Both existing and forthcoming regulations
are described below.
2.2.1 Incinerators
Existing RCRA regulations for hazardous waste incinerators (40 CFR Part
264, Subpart O) set standards for destruction and removal efficiency, hydrogen
chloride emissions, and particulate emissions. Forthcoming revisions will add
limits on metals emissions and products of incomplete combustion, and will revise
the standard for hydrogen chloride emissions. These revisions are expected to be
proposed late in 1989, with promulgation expected to occur one year later.
2.2.2 Land Disposal Facilities
Existing RCRA air regulations for hazardous waste piles, land treatment,
and landfills are limited to the requirement that particulate matter from such
facilities be controlled by covers or other means (40 CFR sections 264.251,
264.273, and 264.301) .
2.2.3 Other Treatment. Storage, and Disposal Facilities (TSDFs)
Regulations governing organic air emissions from treatment, storage, and
disposal facilities (TSDFs) other than incinerators and land disposal units will
be promulgated under 40 CFR Part 269. These regulations will include air emission
standards for process vents and equipment leaks, which were proposed on February
5, 1987 (52 (£R)3748), and air emission standards for container storage, tanks,
surface impoundments, and waste fixation units (to be proposed in 1989). The
regulations are expected to include requirements for the installation, operation,
and maintenance of control equipment, including leak detection and repair, as
well as requirements related to the installation of control equipment for process
vents on air strippers, which are likely to be frequently used in Superfund
operations.
When promulgated, these requirements will be potentially applicable or
relevant and appropriate requirements. The proposed standards are not potential
ARARs, but may be considered in developing a protective remedy for a Superfund
site.
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2.3 STATE AIR TOXIC PROGRAMS
A number of State air pollution control agencies have adopted, or are in
the process of establishing, programs to regulate what are generally referred to
as "toxic air pollutants." Requirements under these programs are likely to be the
most significant ARARs for Superfund activities. These programs differ from State
to State in terms of the pollutants and sources regulated and the safe levels
adopted.9 An RPM must coordinate with the appropriate State agency and with the
Regional Air/Superfund Coordinator to identify these potential State ARARs.
Many States control toxic air pollutants through the imposition of
technology-based standards and then determine whether residual emissions exceed
State standards. Other States control toxic air pollutants by comparing emissions
with acceptable ambient concentrations; that is, the concentration of the toxic
pollutant is estimated, by modeling, at a receptor, usually at the fenceline of
the source, and compared with the "acceptable limit." The definition of an
"acceptable limit" varies a good deal from State to State. Many States establish
acceptable limits by applying a correction factor to occupational standards,
i.e., threshold limit values (TLV). These correction factors vary from 1/10 to
1/420.
Other States regulate carcinogens using risk assessment principles. For
example, a State law may require that the risk to the most exposed individual in
any population exposed to a carcinogen (for an assumed 70-year lifetime) cannot
exceed 1 x 10~5 excess cancer risk.
A typical State air toxics program will require a source to do the
following:
Identify pollutants of concern by comparing anticipated
emissions with the State air toxics list;
Estimate emissions of toxic air pollutants using
procedures approved by the State;
Estimate off-site concentrations, normally by air quality
modeling procedures approved by EPA or the State;
9 Except where NESHAPs have been adopted, there are no Federal or CAA-
related requirements on the State control of toxic air pollutants. EPA's role is
currently to provide information, for example, through the National Air Toxics
Information Clearinghouse (NATICH), the Air Toxics Control Technology Center (the
CTC Hotline number is (919) 541-0800), and the Air Risk Information Support
Center (the Air Risk Hotline number is (919) 541-0888). NATICH is a computerized
data base that contains information from Federal, State, and local agencies, as
well as research information from EPA and other organizations. The information in
NATICH is organized according to agency, pollutant, and emissions source. For
more information, contact the Pollutant Assessment Branch, Research Triangle
Park, North Carolina, at (919) 541-0850.
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Compare off-site concentrations to permissible State
levels; and
Require additional controls (beyond what would otherwise
be required) if a new source is likely to exceed the
State limits.
2.4 COORDINATION BETWEEN CERCLA AND AIR PROGRAM OFFICES FOR REMEDIAL ACTIVITIES
CONDUCTED ON SITE
Remedial Project Managers are responsible for identifying and complying
with ARARs when proposed remedial actions could result in air emissions. 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 Air
Program offices. An Air/Superfund coordinator from the Air Program office has
been designated in each Region to facilitate cooperation and coordination between
the Superfund and Air Program offices. Moreover, State Superfund and State Air
Program offices may be involved where there is a State-lead action or where the
State has been delegated new source air permitting authority. Coordination among
all appropriate program offices should be established to ensure early involvement
and identification of information requirements for expeditious remediation of
particular sites. The Regional Superfund and Air Program offices should maintain
their involvement in all actions.
It is expected that most remedial air field studies and engineering
assessments will be performed by Superfund contractors under the direction of the
RPM in coordination with the appropriate Regional and State Air Programs. The Air
Program offices' experience in applying standards of control under the CAA to
industrial new sources is a valuable resource for Superfund. Air Program offices
can help ensure that Superfund site decisions involving air pollution issues are
consistent with Air Program ARARs. The Air Program offices can also review and
comment on Superfund work plans, site investigations, and cleanup studies, and
can also be called upon to perform special site field evaluations during removal
and pre-remedial actions. Air Program offices may also play a critical role in
the selection of methodologies and assumptions for risk assessment. In some
special circumstances, Air Program staff may provide assistance to Superfund
contractors by consulting in areas such as air modeling, monitoring, and the use
and effectiveness of air pollution control devices. Superfund staff should
consult with their Air Program counterparts early in the planning process to
facilitate this cooperative effort.
Another source of information regarding control technologies is the Control
Technology Center in Research Triangle Park, North Carolina (Hotline numbers:
(919) 541-0800 and (FTS) 629-0800). The Control Technology Center can provide
information regarding types of technologies (e.g., BACT and LAER) that have been
used previously to control various kinds of emissions.
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CHAPTER 3
STANDARDS FOR TOXICS AND PESTICIDES
3.0 TOXIC SUBSTANCES CONTROL ACT
This chapter addresses CERCLA compliance with requirements under the Toxic
Substances Control Act (TSCA). TSCA authorizes EPA to establish regulations
pertaining to the testing of chemical substances and mixtures, premanufacture
notification for new chemical substances or significant new uses of existing
substances, control of chemical substances or mixtures that pose an imminent
hazard, and record keeping and reporting requirements. Of these, the regulations
controlling hazardous chemicals are potential ARARs for CERCLA actions. Pursuant
to TSCA §6, EPA has published regulations pertaining to polychlorinated biphenyls
(PCBs), fully halogenated chlorofluoroalkanes (prohibited for aerosol propellant
uses subject to TSCA), and asbestos (40 CFR Parts 761, 762, and 763,
respectively). Requirements for PCBs will be discussed in this chapter. Asbestos
removal requirements are addressed in Part II, Chapter 2, Section 2.1.2.1
(asbestos NESHAPs).
Background Information on Rulemaking Under TSCA
Section 6 of TSCA requires EPA to promulgate regulations when there is a
reasonable basis to conclude that a chemical substance or mixture (chemical)
presents or will present an unreasonable risk of injury to human health or the
environment. A demonstration that a chemical will present an unreasonable risk is
made on the basis of a qualitative or quantitative risk assessment, which
evaluates the likelihood that the chemical will cause adverse effects either to
human health or the environment.
Chemicals reviewed under TSCA §6 include chemicals that are listed on the
TSCA §8(b) inventory and chemicals for which data has been submitted to EPA under
TSCA §8(e), under a mandatory reporting rule, or from the National Toxicology
Program, the TSCA §5 New Chemicals Program, the TSCA §4 Test Rules Program, or
other sources. From the thousands of chemicals reviewed each year, candidates are
selected for further review based on their potential to cause serious,
long-lasting, or irreversible harm to human health or the environment, e.g.,
chemicals that are carcinogenic, mutagenic, or teratogenic, or that cause chronic
toxicity, behavioral disorders, cumulative or synergistic effects, or
environmental toxicity.
The risk assessment developed for a chemical that undergoes detailed review
is used to determine whether EPA should regulate activities involving the use of
the chemical or whether the chemical should be referred to another agency (e.g.,
OSHA, CPSC) for regulation. With respect to Superfund cleanup actions, the risk
numbers generated under TSCA will be included within the "to be considered"
category and may be used when developing a protective remedy (see Part I, Chapter
1, Section 1.4). The Office of Toxic Substances periodically updates the list of
risk assessments.
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3.0.1 PCB Requirements1
3.0.1.1 TSCA Disposal Requirements
TSCA requirements will be applicable when disposal of material contaminated
with PCBs at concentrations of 50 ppm or greater occurs after February 17,
1978.2'3 TSCA requirements for disposal of PCB-contaminated wastes vary according
to the physical state (liquid, non-liquid, or articles and concentration of PCBs
(40 CFR section 761.60).4 The following TSCA requirements, listed by waste type
and concentration of PCBs, may be ARARs for treatment and disposal of waste
contaminated with PCBs:
Liquid Waste
PCBs at concentrations of 500 ppm or greater must be
disposed of in a TSCA-approved incinerator (40 CFR
section 761.60(a)), or by a TSCA-approved alternative
disposal method (section 761.60(e)).
Any PCB dielectric fluid, regardless of its
concentration, mixed with any fluid containing 500 parts
per million (ppm) or greater PCBs must be disposed of in
a TSCA-approved incinerator (40 CFR section
761.30(a)(2)(iv)), or by a TSCA approved alternative
disposal method (section 761.60(e)).
Mineral oil dielectric fluid from PCB-contaminated
electrical equipment or other liquids containing PCBs at
a concentration of 50 ppm or greater, but less than 500
ppm must be disposed of in either a TSCA-approved
1 Further information on the Superfund approach to cleanup of sites
contaminated with PCBs is being documented in the draft Guidance and
Regulatory Background on the Determination of Response Actions at Superfund
Sites with PCB Contamination, which will be available as an OSWER Directive
when finalized.
For CERCLA Fund-lead actions, PCB-contaminated material is evaluated
based on the concentration at which the PCBs occur in the environment. If,
under an enforcement action, it is determined that the material was spilled by
an RP after the effective date of the TSCA regulations, the material is
evaluated under TSCA as if the PCBs were in the form and at the concentration
of the material that was spilled.
3 TSCA requirements may be relevant and appropriate regardless of the
date of disposal.
4
"Disposal" under TSCA is used broadly and includes destruction and
landfilling actions.
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incinerator, a TSCA-approved chemical waste landfill (if
not ignitable), or a high efficiency boiler (40 CFR
section 761.60(a)(2) and (3)), or by a TSCA-approved
alternative disposal method (section 761.60(e)).
Non-Liquid Waste
Any non-liquid PCBs at concentrations of 50 ppm or
greater in the form of contaminated soil, rags, or other
debris shall be disposed of in a TSCA-approved
incinerator or in a TSCA-approved chemical waste landfill
(40 CFR section 761.60(a)(4)), or by a TSCA-approved
alternative disposal method (section 761.60 (e)).
All dredged materials and municipal sewage treatment
sludges that contain PCBs at concentrations of 50 ppm or
greater shall be disposed of in a TSCA-approved
incinerator or a TSCA-approved chemical waste landfill,
or by a method approved by the appropriate Regional
Administrator if it can be shown that disposal in an
incinerator or chemical waste landfill is not reasonable
or appropriate and that an alternate disposal method will
provide adequate protection to human health and the
environment (40 CFR section 761.60(a) (5) ) .
Articles
PCB Transformers (500 ppm PCBs or greater) may be
disposed of in a TSCA-approved incinerator or drained,
flushed with a solvent, drained again, and placed in a
TSCA-approved chemical waste landfill (40 CFR section
761.60 (b) (1) (i)), or by a TSCA-approved alternative
disposal manner (section 761.60 (e)). The drained liquids
must be incinerated in an incinerator that complies with
section 761.70.
Other PCB Articles (500 ppm PCBs or greater) including
electric motors, pumps, and pipes, may be disposed of in
a TSCA-approved incinerator or drained and placed in a
TSCA-approved chemical waste landfill (40 CFR section
761.60(b)(5)(i)), or by a TSCA-approved alternative
disposal manner (section 761.60(e)). The drained liquids
must be incinerated in an incinerator that complies with
section 761.70.
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Other PCB-Contaminated Articles (between 50 and 500 ppm
PCBs) must be disposed of by draining free-flowing liquid
and disposing of liquid in accordance with 40 CFR
sections 761.60(a)(2) or (3) (see methods for disposal of
liquids described above). The disposal of the drained
article is not regulated (40 CFR section
761.60(b) (5) (ii) ) .
PCB-Contaminated Electrical Equipment (except capacitors)
including transformers, circuit breakers, reclosers,
voltage regulators, switches, electromagnets, and cables
(50-499 ppm PCBs) must be drained. The disposal of
drained equipment is not regulated (40 CFR section
761.60(b)(4)).
PCB Small Capacitors (often found in fluorescent light
ballasts) may be disposed of as municipal solid waste (40
CFR section 761.60(b) (2) (ii)), except that those owned by
a capacitor manufacturer must be sent either to a TSCA
approved incinerator or a TSCA-approved chemical waste
landfill (40 CFR section 761.60(b)(2)(iv) and (v)).
Large High or Low Voltage Capacitors (500 ppm PCBs or
greater) must be disposed of in an approved incinerator
(40 CFR section 761.60 (b) (2) (iii) (B) and (v) ), or by a
TSCA approved alternative disposal manner (section
761.60 (e) ) .
PCB hydraulic machines, such as hydraulic die casting
machines (50-999 ppm PCBs) may be disposed of as
municipal solid waste after they are drained. If the PCB
liquid contains 1000 ppm PCBs or greater, the hydraulic
machine must be flushed with a solvent containing less
than 50 ppm PCBs (40 CFR section 761.60(b)(3)). The
solvent must be disposed of in an incinerator that
complies with section 761.70.
PCB Containers with concentrations of 500 ppm PCBs or
greater, unless decontaminated by flushing three times
with a solvent of less than 50 ppm PCBs, must be disposed
of in TSCA-approved incinerator or, if first drained, in
a TSCA-approved chemical waste landfill (40 CFR section
761.60(c)), or by a TSCA-approved alternative disposal
manner (section 761.60 (e)). The drained
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liquid must be disposed of in an incinerator that
complies with section 761.70.
PCB Containers with concentrations of less than 500 ppm
PCBs must be thoroughly drained and the drained liquid
must be disposed of in accordance with 40 CM sections
761.60(a)(2) or (3).
The regulations further specify requirements that the incinerator (40
CFR section 761.70), chemical waste landfill (40 CFR section 761.75), or other
disposal method (40 CFR section 761.60(a)(5)(iii)) must achieve for each of
the PCB types described above. In addition, the regulation states that
machinery that comes in direct contact with PCBs is considered contaminated
and must be disposed of by an approved method (40 CFR section 761.60(b)).
Under section 761.60(e), an alternative method of destroying PCBs may be
used if it demonstrates a level of performance equivalent to incineration and
the alternative method has been approved by the Regional Administrator or the
Director of the Exposure Evaluation Division, Office of Toxic Substances.
Although the on-site disposal of PCBs from a Superfund site does not
require a TSCA permit, substantive requirements of all applicable or relevant
and appropriate Federal and State (if more stringent than Federal) standards,
regulations, criteria, or limitations for PCB disposal must be met. That is,
the destruction and removal efficiency of PCBs by on-site incineration must be
99.9999 percent and the ash must contain less than 2 ppm PCBs. HCL emissions
must be limited to 4 pounds per hour, or, if greater than 4 pounds per hour,
the emissions must not be greater than 1 percent of the HCL entering the
pollution control device. For alternative methods of disposal pursuant to 40
CFR section 761.60(e), if chemical destruction or separation of the PCBs from
the soil is carried out, the destruction/separation of the PCBs must result in
soil containing less than 2 ppm PCBs to ensure equivalence to a PCB
incinerator. All chemical destruction or separation must occur on site and
achieve the less-than-2 ppm level. If the material containing the PCBs is
shipped off site for disposal, it must be sent to a TSCA-permitted PCB
disposal facility.
3.0.1.2 Storage for Disposal
The substantive portions of the PCB storage requirements may be ARARs
for on-site storage of PCBs prior to disposal. The regulations (40 CFR section
761.65) specify that PCBs and PCB Items (e.g., equipment) at concentrations of
50 ppm or greater must be disposed of within one year after being placed in
storage for disposal. The regulations also include structural requirements for
facilities used for the storage of PCBs and PCB Items, requirements for the
containers used to store PCBs, the requirement to prepare and implement a
Spill Prevention Control and Countermeasure (SPCC) Plan, and the requirement
to check all PCB articles and containers for leaks at least once every 30
days, and other requirements. The requirement to prepare an SPCC Plan is an
administrative requirement and, therefore, not an ARAR; substantive
requirements of the SPCC regulations which may be ARARs are, for example,
building retaining walls to contain spills.
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3.0.1.3 PCB Spill Cleanup Policy
Under 40 CFR section 761.60(d), EPA defines improper disposal of PCBs as
intentional (as well as unintentional) spills, leaks, and other uncontrolled
discharges of PCBs at concentrations of 50 ppm or greater. PCB spills include
spills, leaks, or other uncontrolled discharges where the release results in
any quantity of PCBs running off or about to run off the surface of the
equipment or other PCB source, as well as the contamination resulting from
these releases. With the exception of the requirement for timely cleanup,
regulatory requirements for the cleanup of PCB spills have never been
established.
However, EPA recently published a nationwide TSCA PCB spill cleanup
policy (52 FR 10688, April 2, 1987; 40 CFR Part 61, Subpart G). The
requirements under 40 CFR Part 61, Subpart G, while not potential ARARs, are
TBCs for CERCLA actions, particularly with respect to cleanup of soils
contaminated with PCBs. The policy establishes guidelines for spill cleanups
that, if followed, will minimize the need for the Agency to take enforcement
action for illegal disposal. This policy applies to the cleanup of spills
occurring after May 4, 1987 (the effective date of the policy) resulting from
the release of materials containing PCBs at concentrations of 50 ppm or
greater. Spills that occurred before May 4, 1987, are to be decontaminated in
accordance with the existing Regional standards.5 The policy is based on EPA's
evaluation of the potential routes of exposure and potential risks associated
with common PCB spills.
The policy requires the party responsible for the spill to clean up PCBs
to different levels depending upon spill location, the potential for exposure
to residual PCBs remaining after cleanup, the concentration of PCBs initially
spilled, and the nature and size of the population potentially at risk of
exposure. Thus, the policy applies the most stringent requirements for PCB
spill cleanup to areas where there is a greater potential for human exposure
to spilled PCBs.
The cleanup standards described in the policy cover the following spill
situations:6
Low concentration spills that involve less than 1 pound
PCBs by weight (40 CFR section 761.125(b).
"Low-concentration" means PCB materials that are tested
and found to contain less than 500 ppm PCBs or those
PCB-contaminated materials that
Policies for the cleanup of PCB spills have been established by each
EPA Regional Office, and provide general guidelines to be applied on a
case-by-case basis for specific spill situations.
Additional requirements for cleanup of indoor surfaces may be TBCs for
CFRCLA actions involving indoor PCB contamination (40 CFR section 761.125).
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EPA assumes to be at concentrations below 500 ppm. The
policy States that:
Solid surfaces should be double washed/rinsed; and
All soil within the spill area, plus a 1-foot buffer,
should be excavated, and the ground restored to its
original configuration by backfilling with clean soil
(i.e., soil containing less than 1 ppm PCBs).
High-concentration spills and low-concentration spills
involving 1 pound or more PCBs by weight.
"High-concentration" means PCB materials that contain 500
ppm or greater PCBs, or those materials that EPA assumes
contain 500 ppm or greater PCBs in the absence of
testing. The policy describes actions that should be
taken immediately (within 24 hours) including restricting
the area, recording and documenting the area of visible
contamination, and initiating cleanup and removal of all
visible traces of contamination. The policy then
describes cleanup standards depending upon the location
of the spill:
-- Outdoor electrical substations. Contaminated solid
surfaces will be cleaned to a PCB concentration of 100
micrograms/100 square centimeters. Soil contaminated
by the spill will be cleaned either to 25 or 50 ppm
PCBs by weight provided that a label or notice is
visibly placed in the area.
-- Other restricted access areas. These are areas other
than electrical substations that are at least 0.1
kilometer away from residential/commercial areas, and
to which access is limited by man-made barriers (e.g.,
fences and walls) or substantially limited by
naturally occurring barriers such as mountains,
cliffs, or rough terrain. The policy describes cleanup
standards for surfaces contaminated with PCBs and
further states that soil contaminated by the spill
will be cleaned to 25 ppm. PCBs by weight.
-- Nonrestricted access areas. These are areas other than
outdoor electrical substations and other restricted
access locations, i.e., residential/ commercial areas
and unrestricted access rural areas.
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The policy sets forth standards for cleanup of surfaces and vault
areas. Also, the policy states that soil contaminated by the spill
will be decontaminated to 10 ppm PCBs by weight provided that the
soil is excavated to a minimum depth of 10 inches, a 10-inch cap
of clean soil (less than 1 ppm PCBs) is put on, and the site is
restored.
Spills at sites warranting additional cleanup. The policy states that
in exceptional spill situations, site-specific risk factors may
warrant additional cleanup to more stringent numerical
decontamination levels. For example, even after cleanup to the
standards specified in the policy, site-specific characteristics such
as short depth to ground water, type of soil, or the presence of a
shallow well may pose an exceptionally high potential for
ground-water contamination by PCBs. Therefore, the policy provides
that the Regional Administrator may require additional cleanup to
prevent unreasonable risk. The RPM should similarly consider whether
additional cleanup (beyond the policy's numerical standards) is
necessary in order for the Superfund action to be protective of human
health and the environment.
Spill situation excluded under the policy. The policy is intended to
cover typical PCB spill situations involving the limited release of
PCBs during the course of EPA-authorized activities such as the use
of electrical equipment, the servicing of electrical equipment, and
the storage of PCBs for disposal. Other spill situations are not
considered "typical." Therefore, the policy provides that the
numerical cleanup standards described above are not to be applied
automatically to non-typical spills directly into:
-- Surface water;
-- Drinking water;
-- Sewers;
-- Grazing lands; and
-- Vegetable gardens.
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For such PCB spills, immediate practicable
containment action must be taken to prevent
further contamination, the appropriate Regional
Office must be notified, and cleanup must achieve
the standards set by the Regional Office. The
standards are set on a case-by-case basis.
3.0.1.4 RCRA Land Disposal Restrictions
Liquid hazardous wastes containing PCBs at concentrations greater than
or equal to 50 ppm are addressed by RCRA under the California List Wastes land
disposal restrictions, promulgated July 8, 1987.
Under 40 CFR section 268.42(a) (1), liquid hazardous wastes containing
PCBs at concentrations greater than or equal to 50 ppm but less than 500 ppm
must be incinerated in a facility meeting the requirements of 40 CFR section
761.70 or burned in a high efficiency boiler meeting the requirements of 40
CFR section 761.60.
40 CFR section 268.42(a)(1) also specifies that liquid hazardous wastes
containing PCBs at concentrations greater than or equal to 500 ppm must be
incinerated in accordance with the technical requirements of 40 CFR section
761.70.
PCBs also are halogenated organic compounds (HOCs) and may be regulated,
in either liquid or solid form, under the HOC California List Wastes land
disposal restrictions.7 If HOC wastes are mixed with a RCRA-listed or
characteristic waste and the total concentration of HOCs is equal to or
greater than 1,000 mg/kg, 40 CFR section 269.42(a)(2) requires that the wastes
be incinerated in accordance with the requirements of Part 264, Subpart O, or
Part 265, Subpart O, or treated in boilers or industrial furnaces in
accordance with applicable regulatory standards.8
Thermal treatment under 40 CFR section 761.70, if performed on site,
must also be in compliance with substantive portions of applicable or relevant
and appropriate requirements in Parts 264, 265, and 266. Subpart O of 40 CFR
Part 264 specifies requirements for the incineration of hazardous wastes at
permitted hazardous waste facilities, including requirements relating to waste
analysis, performance standards, operation, and monitoring.
Subpart O of 40 CFR Part 265 specifies similar requirements for the
incineration of hazardous wastes at interim status facilities. In addition,
Subpart P establishes requirements for other methods of thermal treatment,
including those requirements relating to general operations, waste analysis,
monitoring, closure, and open burning.
7The HOC constituents are listed in Appendix III to 40 CFR Part 268.
8Except for diluted HOC wastewaters containing between 1,000 and 10,000 mg/1,
which must only be treated to a concentration of less than 1,000 mg/1 before
land disposal.
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Subpart D of 40 CFR Part 266 specifies requirements for the incineration
of hazardous wastes for energy recovery, including standards applicable to
burners of hazardous waste fuel.
Alternative treatment methods (40 CFR section 268.42(b)) may be used if
the treatment method can be shown to achieve a measure of performance
equivalent to methods specified in paragraph (a).
This rule specifies stricter standards for a subset of the PCB wastes
covered by TSCA -- liquid wastes containing PCBs at concentrations between 50
and 500 ppm that also contain RCRA listed or characteristic wastes. Where TSCA
would allow disposal of these wastes in a landfill meeting specifications of
40 CFR section 761.75, RCRA requires thermal treatment in an incinerator or
high efficiency boiler or an equivalent alternate treatment.
3.1 FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
authorizes EPA to regulate the sale, distribution, and use of all pesticide
products in the United States. EPA accomplishes this through a product
licensing or registration process that includes reregistration of products and
Special Review of pesticides that appear to pose health or safety concerns. A
vital part of the pesticide registration process is EPA approval of product
labeling. Under FIFRA, the label is the law -- use of a registered pesticide
product in a manner inconsistent with its labeling (including disposal) is a
violation of the Act.
To ensure proper use of pesticides that are especially toxic or pose
particular health or environmental hazards, EPA restricts the use of such
products to trained, certified pesticide applicators. Products found to pose
risks that outweigh their benefits may be suspended or cancelled by EPA. All
FIFRA provisions are enforced by a compliance monitoring program that is
carried out by States, often under cooperative agreements with EPA.
Under FIFRA §19, EPA has the authority to issue procedures and
regulations for the disposal and storage of excess pesticides and pesticide
containers. EPA has published procedures for disposal and storage in 40 CFR
Part 165, Subpart C. These procedures are recommended for all pesticide
storage and disposal activities, but are mandatory for any storage or disposal
activities undertaken by the Agency. However, in 1988, FIFRA was substantially
amended to expand its authority over storage and disposal of pesticides and
pesticide containers. In particular, the 1988 amendments explicitly provide
for the enforceability of regulations issued under FIFRA §19. Consistent with
this mandate, revised regulations for the storage and disposal of pesticide
products and containers are currently under development. Since the current
Subpart C contains nonbinding recommendations, at this time these procedures
are not potential ARARs for Superfund cleanup actions but should be considered
when developing a protective remedy.
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Labels are required for all registered pesticide products and generally
include storage and disposal statements. These statements are tailored to
reflect the toxicity of the product and type of use pattern and user involved
(for example, the household user as opposed to the commercial or industrial
user). It is unlawful for the user to dispose of a pesticide product or its
container in a manner inconsistent with its label instructions. Similarly, it
is unlawful to violate a cancellation or suspension order, which may contain
specific storage or disposal provisions. At a Superfund site, however, the
disposal labeling on a pesticide may provide useful information but compliance
with the labeling directions may not be an applicable requirement since at
that point in time the pesticide may not be considered a pesticide product; it
may be considered a RCRA waste (see Section 3.1.1.3).
In addition to the labeling requirements for the use, storage, and
disposal of all registered pesticide products, EPA has promulgated tolerance
levels for pesticides and pesticide residues in or on raw agricultural
commodities under authority of the Federal Food, Drug, and Cosmetic Act (see
40 CFR Part 180. These tolerance levels are potential ARARs for sites at which
agricultural commodities and wildlife are obtained for consumption.
3.1.1 FIFRA Requirements
The following procedures and manuals are not potential ARARs, but
may be considered in developing a protective remedy.
3.1.1.1 Procedures Not Recommended for Disposal (40 CFR section
165.7)
The current FIFRA regulations recommend that pesticides, pesticide
containers, or pesticide container residue should not be stored or disposed
of:
! In a manner inconsistent with its label or labeling;
! So as to cause or allow open dumping of pesticides or
pesticide containers;
! So as to cause or allow open burning of pesticides or
pesticide containers, except small quantities of certain
containers in areas where allowed by State and local
regulations;
! So as to cause or allow water dumping or ocean dumping of
pesticides or pesticide containers except in conformance with
regulations developed under the National Marine Protection,
Research and Sanctuaries Act and the Clean Water Act (see
Part I, Chapter 3);
! So as to violate any applicable Federal or State pollution
control standard; and
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! So as to violate any applicable provision of FIFRA.
3.1.1.2 Procedures Recommended for the Disposal of Pesticides (40 CFR
section 165.8)
FIFRA regulations recommend the following procedures for the disposal of
certain groups of pesticides:
! Organic pesticides (except organic mercury, lead,
cadmium, and arsenic). The preferred method of
disposal is incineration in a pesticide incinerator at
the specified or other temperature/dwell time
combination that will cause complete destruction of
the pesticide. Any liquid, sludges, or solid residues
should be disposed of in accordance with applicable
Federal, State, and local laws. If appropriate
incineration facilities are not available, other
methods to be considered include burial in a specially
designated landfill, chemical methods, or well
injection.9 The regulations caution that the impact of
these alternatives is not well known in all cases and
that they should be used only with specific guidance.
If adequate procedures are not available, temporary
storage of pesticides for disposal should be
undertaken.
! Metallo-organic pesticides (except organic mercury,
lead, cadmium, or arsenic compounds). The regulations
recommend subjecting these compounds to an appropriate
chemical or physical treatment to recover the heavy
metals before incineration. Other disposal
alternatives, if treatment and incineration are not
available, are burial in a landfill, chemical
degradation, or well injection. These alternatives are
subject to the same cautions described above for the
disposal alternatives for organic pesticides.
! Organic mercury, lead, cadmium, arsenic, and all
inorganic pesticides. The regulations recommend that
chemical deactivation be used to convert these
pesticides to non-hazardous compounds and to recover
the heavy metal resources. Chemical
9 The environmental impact of the soil injection method (i.e., burial in a
specifically designated landfill) has not been clearly defined and should be
undertaken only with specific guidance. It is recommended that such guidance
be requested from the Regional Administrator in the Region where the material
will be disposed of prior to undertaking disposal by this method.
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deactivation is not currently available for all
pesticides. If chemical deactivation is not
available, these pesticides should be encapsulated
and buried in a specially designated landfill.10 If
neither option is available, the pesticides should
be placed in suitable containers and temporarily
stored until adequate disposal facilities or
procedures are available.
40 CFR Part 165, Subpart G also provides recommended procedures for the
disposal of pesticide containers and residues (40 CFR section 165.9) and the
storage of pesticides and pesticide containers (40 CFR section 165.10).
Consistent with the 1988 amendments of FIFRA, revised regulations covering
these materials are currently under development.
3.1.1.3 Pesticide Control Under Other Statutes
Requirements under the Clean Water Act (CWA) and RCRA are potential
ARARs for the disposal of pesticides. Because some pesticides are regulated as
toxic pollutants under the CWA, effluent limitations or prohibitions regarding
the discharge of pesticides to surface waters are potential ARARs (see Part I,
Chapter 3). Further, some discarded or off-specification pesticides are listed
as a hazardous waste and some may potentially be hazardous by characteristic
(40 CFR section 261.24), and therefore subject to regulation under Subtitle C
of RCRA, (40 CFR sections 261.33(e) and (f)) (see Part I, Chapter 2).
3.1.1.4 Other Manuals
The following technical manuals may provide useful information
regarding pesticides, e.g., toxicity, solubility:
! The Degradation of Selected Pesticides in
Soil: A Review of the Published Literature,
Municipal Environmental Research Laboratory
(August 1977), EPA-600/9-77-022.
! Farm Chemicals Handbook (updated yearly).
! Crop Protection Chemicals, Ed. by L. Fowden,
Royal Society of London (1981) .
"Encapsulate" means to seal a pesticide, and its container, if
appropriate, in an impervious container made of plastic, glass, or other
suitable material which will not be chemically degraded by the contents. This
container then should be sealed within a durable container made from steel,
plastic, concrete, or other suitable material of sufficient thickness and
strength to resist physical damage during and subsequent to burial or storage
(40 CFR Part 165, Subpart A).
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CHAPTER 4
OTHER RESOURCE PROTECTION STATUTES
4.0 OVERVIEW
The laws addressed in the following sections contain consultation,
documentation, and reporting requirements that must be complied with for off
site remedial actions,1 and that are strongly recommended to ensure that on-
site remedial activities comply with the substantive ARARs. While EPA
interprets CERCLA §121(e) to exempt lead agencies from obtaining Federal,
State, or local permits (or documents similar to permits) or from complying
with the administrative requirements for on-site remedial activities, it is
strongly recommended that lead agencies, nevertheless, consult as specified
with administering agencies for on-site actions. The administering agencies
have the expertise to determine the impacts of a remedial action on particular
aspects of the environment and what steps should be taken to avoid and
mitigate adverse impacts.
The National Environmental Policy Act (NEPA) Compliance staffs at
Headquarters in the Office of Federal Activities (OFA) and in the Regions (a
list of Regional NEPA coordinators is available from OFA) can assist project
officers in meeting the substantive requirements of these laws and in carrying
out consultation through contacts in other agencies. RPMs are advised to
contact the NEPA Compliance staff early in the planning process of a remedial
action. In addition to such site-specific coordination, Regions should
establish procedures, protocols, or memoranda of understanding that, while not
recreating the administrative aspects of the consultation or review process,
ensure cooperation and coordination between the Regional Superfund and NEPA
staffs, and between the Regional staff and the appropriate Federal agencies.
Moreover, State Superfund and other State program staff should be involved
where there is a State-lead action or where State ARARs are under
consideration. Coordination among all appropriate offices should be
established.
The laws described in this section apply to activities conducted by
Federal agencies or with Federal assistance. EPA interprets the CERCLA §121
requirement to meet ARARs as applicable to all remedial activities undertaken
pursuant to CERCLA §§104, 106, and 122. Therefore, the ARARs described in this
chapter must be complied with by the lead agency (EPA, State, or other
§121(d)(3) states that off-site transfer of CERCLA wastes shall
only be transferred to facilities that are in compliance with applicable
Federal law. RCRA requires permitted hazardous waste facilities to comply with
the Endangered Species Act and the National Historic Preservation Act, as well
as other environmental statutes. Therefore, treatment or disposal of CERCLA
wastes at a RCRA permitted facility does not require separate compliance
efforts because the RCRA permit process will have ensured the facility's
compliance with these laws.
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Federal agency), including CERCLA actions conducted by responsible parties
under the direction of a lead agency.2
4.1 NATIONAL HISTORIC PRESERVATION ACT
Pursuant to §106 and §110(f) of the National Historic Preservation Act
(NHPA),3 as amended, CERCLA remedial actions are required to take into account
the effects of remedial activities on any historic properties included on or
eligible for inclusion on the National Register of Historic Places.4 For
purposes of this chapter, historic properties are referred to as cultural
resources. The National Register is a listing of districts, sites, buildings,
structures, and objects that are significant in American history,
architecture, archeology, engineering, and culture.
The first step toward substantive compliance with the NHPA is to
identify cultural resources included on (or eligible for inclusion on, based
on criteria described in Section 4.1.1) the National Register that are located
in or near the area under study in the RI. Cultural resource surveys are
usually carried out to help in the identification of previously undocumented
resources. The second step is to identify the possible effects of proposed
remedial activities on such resources. If the activity will have an effect on
such resources, the lead agency must examine whether feasible alternatives
exist that would avoid such effects. If an effect cannot reasonably be
avoided, measures shall be taken to minimize or mitigate the potential
effects .
If, at any point, the conclusion is reached that cultural resources are
not present or will not be affected, no further investigation is necessary
(see Exhibit 4-1).
2 The phrase, "lead agency," is used throughout this chapter to identify
the 'actor' taking steps to ensure compliance with requirements described
here. At any given site or step in the process, the 'actor' may be EPA, the
State, a Federal agency remediating a site at a Federal facility, or a
responsible party. However, EPA retains sole responsibility for some
activities and is ultimately responsible for ensuring compliance, whether as
the lead agency or in an oversight or concurrence role.
3 16 USC §§470 et. seq. , and its implementing regulation
'36 CFR Part 800).
4 The Historic Sites Act of 1935, Executive Order 11593, the
Presidential Memorandum "Environmental Quality and Water Resources
Management," and 36 CFR Part 800 "Protection of Historic and Cultural
Properties" are not discussed separately here, but are relevant to the
historic preservation process. Other statutes contain requirements regarding
archeological resources, e.g., the Archaeological and Historic Preservation
Act of 1974 and the Archaeological Resources Protection Act of 1979. The State
Historic Preservation Officer (see footnote 5) can be consulted to assist in
determining whether these requirements apply.
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Exhibit 4-1
Cultural Resources Review Under NHPA and
Remedy Selection Under CERCLA
CERCLA/SARA
Project Phase
1RL1
RI/FS
ROD
RD/RA
Determine If cultural resources
survey Is necessary
Further Investigation
recommended?
No
Yes
Further Investigation
recommended?
Yes
Determine If there Is National
Register eligibility
No
Yes
Evaluate
impacts
NO
Impact
No
Development/implementation
of mitigation measures
No further Federal cultural
resources review necessary
1 The Interagency Review Letter (IRL), formerly known as the A-95 Clearing
House Letter, is the scoping phase of the process.
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The regulations implementing NHPA §106 describe the administrative and
procedural requirements that must be followed by Federal agencies. These
procedural requirements include consultation and coordination between the
Federal agency, a party undertaking a Federally assisted cleanup, the Advisory
Council on Historic Preservation (ACHP), the State Historic Preservation
Officer (SHPO),5 and other interested parties. For CERCLA actions, these
requirements must be complied with for any part of the cleanup action that
takes place off site. (For example, if an access road is to be built off site
to carry out the proposed remedial action, the road's impact area should be
subject to a cultural resource survey.) Although administrative and procedural
requirements are not ARARs for on-site activities, adherence to these steps is
strongly recommended for cleanup actions that take place entirely on site
because of the effectiveness of these procedures in identifying cultural
resources and the expertise of the SHPO and the ACHP in these matters.
States often act as the lead agency for CERCLA remedial actions. In such
cases, the responsibilities described in this section would be undertaken by
the State. However, NHPA regulations require that Federal agencies retain the
responsibility for final decisions regarding the impacts of remedial
activities on cultural resources. Therefore, in this section, lead agency is
used whenever EPA or a State agency may act on cultural resource
identifications or "no effect" determinations. Formal determinations regarding
eligibility for the National Register, "no adverse effect" evaluations, and
consultation with the ACHP are reserved to EPA. These determinations, however,
should be made by EPA with the assistance of the State.
This section of the guidance manual describes the criteria used in
determining whether a property is a cultural resource eligible for listing on
the National Register, and the site information needed to identify cultural
resources. Also described in this section is a recommended approach for
collecting the necessary information and determining within the remedy
selection process whether proposed remedial activities will affect cultural
resources.
4.1.1 Criteria for Evaluation
36 CFR section 60.4 identifies the criteria applied to evaluate whether
cultural resources will be eligible for inclusion on the National Register.
The evaluation is based in part upon the quality of significance in American
history, architecture, archeology, engineering, and culture that is present in
districts, sites, buildings, structures, and objects that possess integrity of
location, design, setting, materials, workmanship, feeling, and association,
and that:
5 The State Historic Preservation Officer is the official responsible
pursuant to §101(b)(1) of the Act for administering the State historic
preservation program within each State or jurisdiction.
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! are associated with events that have made a significant contribution
to the broad patterns of our history;
! are associated with the lives of persons significant in our past;
! embody the distinctive characteristics of a type, period, or method
of construction, or that represent the work of a master, or that
possess high artistic values, or that represent a significant and
distinguishable entity whose components may lack individual
distinction; or
! have yielded, or may be likely to yield, information important in
prehistory or history.
4.1.2 Needs Determination
The following factors are reviewed in order to determine whether a
Cultural Resource Survey (CRS) is necessary. This analysis should be conducted
prior to developing the RI/FS Workplan, with the recognition that varying
amounts of the following information will be available for each CERCLA site:
! The type and scope of activity under preliminary consideration;
! The nature and extent of the physical disruption likely to be
associated with the undertaking;
! The environmental characteristics of the planning area;
! The type of direct and indirect impacts anticipated in the planning
area;
! The data gathered from a field inspection of the proposed planning
area, including photo-documentation of any potential cultural
resources that may be directly or indirectly impacted; and
! The recommendations of the SHPO and other appropriate State agencies,
and State and local historic preservation groups, local governments,
Indian Tribes, and other parties likely to have knowledge of historic
properties in the area.
4.1.3 Cultural Resource Survey
A CRS is the category of activities necessary to identify cultural
resources within the project area and, where necessary, to develop the
information required to apply the National Register's criteria for evaluation
(see Section 4.1.1 above). The objective of the CRS is to develop adequate
information to make the substantive determinations required by the NHPA. A
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CRS is carried out by a professional archaeologist/historian, as defined by
Department of the Interior (DOI) standards.6
4.1.4 Implementing NHPA Requirements during the CERCLA Cleanup Action
The following sections discuss how the steps in the CERCLA cleanup
process provide opportunities to develop the information and make the
determinations required under §106 of the NHPA. Exhibit 4-1 illustrates that
these determinations, as appropriate, may be included in the remedy selection
process.
4.1.4.1 Remedial Investigation/Feasibility Study
! The Workplan
Should there be a need for a CRS (see Section 4.1.2 above), then the
requirements for the CRS can be incorporated into the RI/FS Workplan. Most of
the information for a CRS will be developed during the RI/FS. The CRS process
is a staged investigation, narrowing in focus when specific resources are
identified. The RI/FS Workplan may include a scope of work and schedule for a
Stage I (A&B) Site Recognition survey and allow for scheduling of a Stage II
Site Definition and Evaluation survey (described below), should it be
necessary.
Even at those sites where a CRS is undertaken, it will not be necessary
or appropriate to go through all of these steps at every CERCLA site in order
to achieve compliance with NHPA. The objective of these surveys is to have
information available regarding cultural resources at various decision points,
e.g., when remedial alternatives are discussed during the FS phase, and when
making eligibility, mitigation, and data recovery determinations.
! Stage I Survey
The Stage I survey is designed to determine the presence or absence of
cultural resources in the project's potential impact area. The Stage I work
should be conducted early during the planning activities for each project.
This allows the information derived from this work to be used in developing
and screening remedial alternatives to avoid or minimize effects on
historical, architectural, archaeological or culturally significant
properties. For the purpose of this survey, the study area is the planning
area of the proposed project. To facilitate planning, the Stage I survey may
be divided into two sequential units of study:
Stage IA: Literature Search and Sensitivity Study
Stage IA is the initial level of survey and requires documentary
research designed to identify any known or potential historical,
architectural, archeological, culturally significant resources within the
project area. A
6 See Department of the Interior Standards and "Guidelines on Archaeology and
Historic Preservation," 48 FR 44716-42 (September 29, 1983).
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primary objective of the study is to evaluate the sensitivity of the project
area for the presence of cultural resources; this information will be used to
guide the field investigation that follows. In carrying out the initial
search, sources at the State Historic Preservation Office, local governments,
universities, local libraries, museums, historical societies, and other,
individuals or organizations with historical and cultural expertise can be
consulted as appropriate. Indian Tribes and other appropriate parties may also
represent important sources of information. In addition, the nature and extent
of the proposed project is evaluated, an initial walk-over reconnaissance and
surface inspection is completed, and the effect of prior ground disturbance on
the probability of identifying cultural resources is assessed.
The Stage IA search should identify actual or potential cultural
resources and all properties that are eligible, listed, or being considered
for inclusion in the National Register within the project's area. To further
define the potential for unidentified resources, the Stage IA search should
include synthesis of land use patterns, and prehistoric and historic cultural
development of the project area. This information should provide the basis for
identifying zones of cultural resource sensitivity. This synthesis may be
particularly useful when screening alternatives, analyzing indirect effects,
and determining the need for and scope of a Stage IB survey. Areas where
substantial prior land modification is evident should be clearly identified.
It is appropriate to include materials (e.g., maps, photos, soil boring
logs)that support conclusions of the analysis. Further, the Stage IA
sensitivity study will result in recommendations for the subsequent Stage IB
investigation.
Stage IB: Field Investigation
A Stage IB field investigation can include subsurface testing, and is
recommended unless the presence or absence of resources can be determined by
direct observation or by examination of historical records and documents.
Although detailed evaluation of specific resources is not carried out at this
level, it is necessary to record and describe the cultural resources,
including their location on the site, as fully as possible to aid in the
formulation of recommendations for avoidance or further evaluation.
The final Stage IB report presents the results of the field
investigation, including: a description of the survey design and methodology
(based on results of the Stage IA study) ; complete records of soil
stratigraphy; and an artifact catalogue characterizing the nature of the
discoveries. As appropriate, this should include the identification, estimated
data range, and quantity or weight of each artifact. The locations of all
field test units must be accurately plotted on a project area map, with
locations of identified resources clearly defined. Photographs that illustrate
salient points of the survey are a necessary component of the final report.
Detailed recommendations and supporting rationale for additional investigation
must be incorporated into the conclusions of the Stage IB report.
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Review of Stage I Survey Findings
The schedule for the CRS should provide for lead agency review of the
Stage I survey results and sufficient opportunity for the completion of a
Stage II survey, should one be necessary, before completion of the RI
fieldwork. The lead agency will evaluate the Stage I survey results to
determine the need for, and refine the scope of, any Stage II survey.
If all cultural resources identified through the Stage IA and/or Stage
IB surveys will not be affected by the proposed project, the survey process is
complete. If cultural resources identified by these studies may be affected,
further evaluation may be required to determine the potential eligibility of
the resources for inclusion in the National Register. The extent of additional
cultural resource study may be reduced by project modifications (e.g.,
realignment or relocations) that avoid or minimize potential effects.
! Stage II Survey: Site Definition and Evaluation
The Stage II survey is a detailed evaluation of an identified cultural
resource(s) that may be affected by the remedial alternatives being
considered. Research is carried out on each identified resource to provide
adequate data to allow a determination of the resource's eligibility for
listing in the National Register (see next section). The Stage II report
should include, at a minimum, information on boundaries, integrity, and
significance of the resource(s), and evaluation of the effect of the proposed
project as well as any additional data necessary to evaluate eligibility.
The Stage II survey results will provide the lead agency with sufficient
information to determine both the effects and ways to avoid or reduce the
effects on any cultural resources. The data from the CRS should be
incorporated into the RI/FS environmental analysis, and the reports should be
appended to the document.
! Determination of Eligibility
The lead agency, in consultation with the SHPO, shall apply the criteria
for inclusion described in Section 4.1.1 above in order to determine whether a
cultural resource meets the criteria for inclusion on the National Register.
If both the lead agency and the SHPO agree, the lead agency should prepare
appropriate documentation according to the DOI regulations (see 36 CFR Part
63). This documentation should include the SHPO's written opinion regarding
eligibility. The lead agency should transmit the documentation to the Keeper
of the National Register. If a question exists or the lead agency and the SHPO
do not agree on eligibility, the documentation should be forwarded to the
Keeper for a determination of eligibility.
! Impact Evaluation
After the appropriate CRS studies have been accomplished, one of the
following determinations of the effect of the proposed remedial activities on
all National Register-listed and eligible resources identified in the project
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area of potential effects shall be made by the lead agency in consultation
with the SHPO. An effect occurs when an undertaking may alter characteristics
of the cultural resources that qualify it for inclusion in the National
Register.
-- Determination of no effect
If the lead agency, in consultation with the SHPO, determines that the
undertaking will have no effect on National Register-listed resources or on
resources eligible for nomination on the National Register, then no further
review is necessary.
-- Determination of no adverse effect
If there will be an effect on a resource which is listed or eligible for
listing on the National Register, the lead agency, in consultation with the
SHPO, shall determine the nature of the effect by applying the "Criteria of
Adverse Effect" (see next section). If a determination of no adverse effect is
made, the lead agency shall prepare adequate documentation for this
determination for submittal to the ACHP (36 CFR section 800.5(d)).
Effects of an undertaking that would otherwise be found to be adverse
may be considered to be not adverse when both the nature of the impact is
limited and appropriate data recovery (see mitigation section below) is
implemented (36 CFR section 800.9(c)). For example, a data recovery program
may be applied to an archaeological site whose primary significance lies in
its ability to yield information important to history. This data recovery can
take the form of preserving the significant information by professional
excavation, reporting, and curation of archaeological materials.
Determination of adverse effect
An adverse effect is an effect on a historic property on or eligible for
the National Register that may diminish the integrity of the property's
location, design, setting, materials, workmanship, feeling, or association.
Adverse effects (36 CFR section 800.9(b)) include, but are not limited to, the
following:
! physical destruction, damage, or alteration of all or part of
the property;
! isolation of the property from or alteration of the character
of the property's setting when that character contributes to
the property's qualification for the National Register;
! introduction of visual, audible, or atmospheric elements that
are out of character with the property or alter its setting;
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! neglect of the property resulting in its deterioration or
destruction; and
! transfer, lease, or sale of the property.
If it is determined that a remedial activity conducted off site has the
potential to adversely affect a National Register-listed or eligible resource,
or if the ACHP objects to a determination of no adverse effect, the lead
agency shall prepare the required documentation (36 CFR section 800.8) (it is
strongly recommended that the lead agency also comply with these documentation
requirements, where possible, for on-site activities). This documentation will
contain the lead agency's proposals to avoid or mitigate the adverse effects
of a project upon a National Register-listed or eligible resource and shall be
submitted to the ACHP. The ACHP may consult with the lead agency, the SHPO,
and other interested parties in examining all feasible alternatives that would
avoid adverse effects on these resources. Generally, the formal consultation
should result in an agreement on the treatment of any adverse effects.
When agreement is reached on how the effects will be taken into account,
the ACHP may participate in the preparation or approval of a Memorandum of
Agreement (MOA) reflecting such agreement. The lead agency shall not take or
authorize any action having an adverse effect on such cultural resources until
all reasonable alternatives have been examined. Of course, for on-site
actions, the lead agency must meet the substantive requirements to avoid or to
mitigate potential project effects. For off-site actions, the lead agency
shall not take the action until the ACHP has accepted an MOA or has commented
on the report.
! Mitigation
Where the lead agency determines that it is not feasible to implement an
alternative to avoid an effect on a National Register-listed or eligible
resource, measures to minimize the potential effects should be developed in
consultation with the SHPO, the ACHP and, where appropriate, other parties. A
mitigation plan outlining these measures should be developed. Where an adverse
effect exists, this mitigation plan should be included in an MOA signed by the
consulting parties.
If a mitigation plan is developed, it shall be based on engineering,
environmental, economic, and resource preservation concerns. Mitigation may
take the form of avoidance through cost-effective redesign, reduction of the
direct impact on the resource, and/or data recovery prior to construction.
4.1.4.2 Remedial Design
The remedial design process should provide for the scheduling and
funding of the development and implementation of a detailed cultural resources
mitigation plan (e.g., data recovery, construction constraints, etc.). The
lead agency will be responsible for obtaining final SHPO and ACHP approval of
any mitigation plan that involves alteration or destruction of identified
National Register or eligible resources located off site. In general, it will
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be advantageous to complete data recovery activities prior to construction;
however, provisions may occasionally be necessary to schedule such work to
occur during construction.
4.1.5 Documentation
Compliance with NHPA requirements should be documented in the RI/FS
report, describing, as appropriate, the determination of whether cultural
resources are or are not present; the results of the CRS process and
recommendations on the eligibility of the identified cultural resources for
the National Register; the impact, if any, on such resources; and the
associated mitigation measures to minimize potential "no adverse" or "adverse"
effects .
When cultural resources are present, the ROD should identify the NHPA as
an ARAR. For each alternative, the ROD should identify whether the alternative
will comply with substantive NHPA requirements. For the selected remedy, the
ROD should also include a brief statement describing what compliance with NHPA
entails, e.g., that there will be no impact on cultural resources or what
mitigation measures will be required.
4.2 ARCHEOLOGICAL AND HISTORIC PRESERVATION ACT
The Archeological and Historic Preservation Act, 16 USC §469a-l,
provides for the preservation of historical and archeological data that might
otherwise be lost as a result of dam construction or alterations of the
terrain. If activities in connection with any Federal construction project or
Federally approved project may cause irreparable loss to significant
scientific, prehistorical, or archeological data, the Act requires the agency
undertaking that project to preserve the data or request the DOI to do so.
This Act differs from the NHPA in that it encompasses a broader range of
resources than those listed on the National Register and mandates only the
preservation of the data (including analysis and publication).
4 3 ENDANGERED SPECIES ACT
4.3.1 Overview of the Endangered Species Act
The Endangered Species Act (ESA) of 1973, 16 USC §1531 et sea., provides
a means for conserving various species of fish, wildlife, and plants that are
threatened with extinction. The ESA defines an endangered species as "any
species which is in danger of extinction throughout all or a significant
portion of its range.... " In addition, the ESA defines a threatened species
as "any species which is likely to become an endangered species within the
foreseeable future.... " Further, the ESA provides for the designation of
critical habitats, that are "specific areas within the geographical area
occupied by the [endangered or threatened] species... on which are found those
physical or biological features essential to the conservation of the
species ..."
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Section 7(a) of the ESA requires Federal agencies, in consultation with
the DOI and the National Marine Fisheries Service (NMFS), as appropriate, to
ensure that the actions they authorize, fund, or carry out are not likely to
jeopardize the continued existence of endangered or threatened species, or
adversely modify or destroy their critical habitats. Actions that might
jeopardize listed species include direct and indirect effects, as well as the
cumulative effects of other actions that are interrelated or interdependent
with the proposed action.
Substantive compliance with the ESA means that the lead agency must
identify whether a threatened or endangered species, or its critical habitat,
will be affected by a proposed response action. If so, the agency must avoid
the action or take appropriate mitigation measures so that the action does not
affect the species or its critical habitat. If, at any point, the conclusion
is reached that endangered species are not present or will not be affected, no
further action is required.
Section 7 of the ESA requires consultation to determine whether the
project is likely to jeopardize the continued existence of any endangered or
threatened species or result in the destruction or adverse modification of a
critical habitat. The lead agency should consult with the U.S. Fish and
Wildlife Service (FWS) for terrestrial and freshwater species and the NMFS for
marine species. Such consultation is required for off-site actions and is
strongly recommended for cleanup actions conducted entirely on site, since
such procedures were designed to ensure compliance with the ESA.7
4.3.2 ESA Review Procedures
4.3.2.1 Determining Whether Endangered Species Are Present
As early as possible in the remedial planning process, the lead agency
should request a determination from the appropriate office(s) of the FWS and
the NMFS on whether there are listed or proposed species or critical habitats
present in the study area. A written request for information is required for
off site actions and is strongly recommended for on-site activities. The
location and type of project and a map of the planning area for each project
should be included with the letters to the FWS and NMFS, as appropriate.
The FWS and NMFS are required to respond within 30 days of the receipt
of such a request. If the FWS and NMFS determine that no listed or proposed
species are present in the study area, no further consultation with these
agencies is required.
Informal consultation under the ESA can also be conducted on many
projects at one time. In addition, certain FWS and NMFS regional offices may
provide lists of Federal endangered and threatened species and critical
habitats on a State-by-State basis that can help to expedite the review
process. Requests for bulk informal consultations and State species lists
Procedures for interagency cooperation concerning endangered species
are found in 50 CFR Part 402.
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should be forwarded to the respective FWS regional office. These lists,
assuming they are kept current, can provide an early screening and may result
in a determination by the lead agency that no endangered species or critical
habitats are present, and no further actions or investigations would be
required.
4.3.2.2 Biological-Assessment
A determination, during informal consultation, that an endangered or
threatened species or critical habitat is present and may be impacted by site
activities will necessitate preparation of a biological assessment (BA). The
intent of the BA is to examine any possible impacts of a proposed action upon
the affected species or critical habitats in the project area. The
determination of possible project impacts should be completed within 180 days
after the BA is initiated and should be made during the RI/FS process. To
support this determination, the BA should include the following, as
appropriate:
! Views of wildlife experts;
! Review of literature and field data;
! Results of on-site inspection of the total area affected (both
on site and off site, as appropriate) to determine the presence
or absence of affected species and/or critical habitat
(conducted in accordance with the site's Health and Safety
Plan);
! Analysis of the likely effects of the proposed project on the
species in terms of individuals (short-term impacts) and
populations (long-term impacts);
! Analysis of alternative actions to protect endangered species;
and
! Description of the study methodology.
Prior to the implementation of any of these tasks, it is recommended
that the specific scope of the BA be approved by the appropriate FWS or NMFS
office(s ) .
Based upon the BA conclusions, the lead agency, in consultation with the
FWS or NMFS, must determine the next appropriate action. The following
consultation requirements described below and in Sections 4.3.2.3. and
4.3.2.4. are not required for on-site actions, but are strongly recommended.
! If the lead agency determines the project will not affect any
listed or proposed species, the lead agency will supply the
appropriate area manager or regional director of the FWS or
NMFS with that determination and the completed BA. Unless FWS
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NMFS disagrees with the determination of no effect, the lead
agency's endangered species responsibilities under §7 of the
ESA have been met.
! If the lead agency anticipates that the project will affect a
listed or proposed species, the lead agency must initiate the
formal consultation process with the appropriate regional
office(s) of EVS or NMFS. No action can be approved until the
formal consultation process is completed.
If the lead agency and the Federal wildlife management agencies disagree about
the effect of an action on an endangered species, the formal consultation
process (i.e., biological opinion) must be initiated.
4.3.2.3 Biological Opinion (Formal Consultation)
The lead agency initiates formal consultation by a written request to
FWS or NMFS which must include:
! a description of the action to be considered;
! a description of the specific area that may be affected by the
action;
! a description of listed species or critical habitat that may be
affected by the action, and of how they will be affected, and
an analysis of any cumulative effects; and
! relevant available reports and other information on the action,
or affected species or habitats.
The FWS or NMFS is required to conclude formal consultation within 90 days,
although that time can be extended by mutual consent of the Federal agencies
involved. Within 45 days of the conclusion of formal consultation, a
biological opinion (BO) must be completed. The BO can conclude that:
! The proposed action is not likely to jeopardize or adversely
affect the species or critical habitat. No further action is
required and the proposed project can proceed.
! The proposed action is likely to jeopardize or adversely affect
an endangered species or critical habitat. In this case, the
project must be stopped unless alternatives to avoid or
mitigate any impact to the species or critical habitat can be
found, or an exemption is granted by the Endangered Species
Committee through formal consultation procedures.
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4.3.2.4 Application for Exemptions
The procedures for applying for ESA exemptions are found in 50 CFR Parts
450, 451, 452, and 453 and are summarized below.
If the BO results in a determination of adverse effect (jeopardy to
species or adverse modification of habitat), and there are no reasonable or
prudent measures that can be taken to avoid or mitigate impacts from off-site
activities, the lead agency may submit an application for exemption from the
§7(a)(2) requirement. The application must be sent to the Secretary of the
Interior or Secretary of Commerce, as appropriate, within 90 days following
the termination of the consultation process. The exemption application must
contain the following information (similar information should be provided for
on-site action):
Comprehensive description of the proposed agency action;
Description of the consultation process carried out under the Act;
Copy of the BA;
Copy of the BO;
Description of the alternatives considered;
Statement describing why the proposed agency action cannot be
altered or modified to avoid violating §7 (a) (2) of the Act; and
Description of resources committed by the Federal agency, if any,
to the proposed action subsequent to the initiation of insulation.
For off-site actions, the Secretary will conduct a threshold review of
the application and determine, within 20 days, whether the application
qualifies for consideration by the Endangered Species Committee. If it is
determined that all the consultation requirements have been met by the agency,
the Secretary will submit a report to the Endangered Species Committee within
140 days. The Endangered Species Committee is composed of: the Secretary of
the Interior, the Secretary of Agriculture, the Secretary of the Army, the
Chairman of the Council of Economic Advisors, the Administrator of the
Environmental Protection Agency, the Administrator of the National Oceanic and
Atmospheric Administration, and a person from each affected State as
determined by the Secretary.
It should be noted that applying for an ESA Exemption is a lengthy and
detailed process involving hearings before an Administrative Law Judge. The
process has been carried out on only a few cases in the history of the Act.
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Exhibit 4-2
Endangered Species Review Under Endangered Species
Act and Remedy Selection Under CERCLA
CERCLA/SARA
Project Phase
IRL1
RI/FS
ROD
RD/RA
Determine with FWS and NMFS
whether there are Federal
endangered species in the study
area that are likely to be Impacted
N
0
Biological
assessment (BA)
Project likely to affect
listed species
Project is not likely to
jeopardize species
Initiate Section 7
formal consultation
W/ FWS & NMFS (BO)
Project is likely to
jeopardize species
Supply FWS or NMFS
with BA and
determination
Project Is not likely to
jeopardize species
Resolve through
negotiations with
FWS, NMFS2
implement specified
mitigation
No further Federal endangered
species review required
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4.3.3 Documentation
Compliance with ESA requirements should be documented in the RI/FS
report, describing, as appropriate, the determination of whether endangered
species or a critical habitat are or are not present; the results of the BA;
the results of the formal consultation or BO; the impact, if any, of the
CERCLA action; and the associated mitigation measures to minimize impacts.
When an endangered species or critical habitat is present, the ROD
should identify the ESA as an ARAR. For each alternative, the ROD should state
whether the alternative will comply with substantive ESA requirements. For the
selected remedy, the ROD should also include a brief statement describing what
compliance with ESA entails, e.g., that there will be no impact on the
endangered species or what mitigation measures will be required.
4.3.4 Discussion
Provided that appropriate consultation is initiated in a timely manner,
it is unlikely that the provisions of the ESA will cause a delay in a remedial
project. Moreover, because of the nature of the remedial program (i.e., the
cleanup of environmental contamination), it is very unlikely that the ESA
review process will result in a project being delayed or stopped because of
adverse impacts to endangered or threatened species or critical habitats.
However, changes in methods or timing may be necessary to avoid adverse
impacts (e.g., timing the action to avoid the mating season of a species). The
vast majority of projects will not require anything further than informal
consultation. However, if serious impacts could result from a remedial action,
the provisions of natural resource damage assessments and claims of
CERCLA/SARA (i.e., 43 CFR Part 11) would likely be initiated by the
appropriate Trustee. In such cases, an agreement may be reached with the
respective Trustee that will allow appropriate remedial action "operable
units" to proceed to ensure the protection of public health.
4.4 WILD AND SCENIC RIVERS ACT
4.4.1 Overview of the Wild and Scenic Rivers Act
The Wild and Scenic Rivers Act (WSRA), 16 USC §1271, et seq..
establishes requirements applicable to water resource projects affecting wild,
scenic, or recreational rivers within the National Wild and Scenic Rivers
System, as well as rivers designated on the National Rivers Inventory to be
studied for inclusion in the National System. In accordance with §7 of the
Act, a Federal agency may not assist through grant, loan, license, or
otherwise, the construction of a water resources project that would have a
direct and adverse effect on the free-flowing, scenic, and natural values for
which a river on the National System or Study River on the National Rivers
Inventory was established. The Act also covers indirect effects from
construction of water resources projects below or above rivers or their
tributaries that are in the National System or under study on the National
Rivers Inventory, such as a dam on a tributary and construction or development
on adjacent shorelines. If the project (s) would affect the free-flow
characteristic of a designated river or
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unreasonably diminish the scenic, recreational and fish and wildlife values
present in the area, such activities should be undertaken in a manner that
would minimize adverse impacts, and should be developed in consultation with
the DOI (National Park Service) and the Department of Agriculture (DOA).
If, at any point, the conclusion is reached that the CERCLA activity
will not impact a designated river or is not a water resource project, no
further action is required.
The Act is administered by the DOI and the DOA. Potentially applicable
requirements are found in §7 of the Act. The DOA has promulgated implementing
procedures at 36 CFR Part 297 for rivers within its jurisdiction.
4.4.2 Summary of Wild and Scenic Rivers ARARS for CERCLA Actions
The WSRA requires that the lead agency:
Identify any rivers within the National Wild and Scenic Rivers
System or Study River on the National Rivers Inventory within a
Federal project area;
Determine if a project will involve construction of any water
resources project that could affect the free-flowing
characteristics, the scenic, or natural values of a designated
river; and
Not authorize any water resources project or any other project
that will directly or indirectly impact any designated river
without notifying the Secretary of the Interior or Chief of the
Forest Service (whoever has jurisdiction) in writing at least
60 days prior to the date of the proposed actions.
A water resources project8 is defined as a dam, water conduit,
reservoir, powerhouse, transmission line, discharge to waters, or other
project works under the Federal Powers Act or other construction of
developments that would affect the free-flowing characteristics or scenic,
recreational, or fish and wildlife values of a Wild and Scenic River or Study
River. The statute further provides that the Secretary of Agriculture or
Secretary of the Interior will make a determination as to the effect of the
project on the designated river and will either consent or not consent to the
project. If consent is denied, either Secretary may recommend measures to
eliminate adverse effects.
If on-site cleanup activities involve the potential to impact a
designated river, the lead agency is strongly encouraged to notify and consult
Note that the DOI definition includes activities such as dredging,
installation of rip-rap, and shoreline development (DOI Solicitors Memorandum,
February 7, 1969) .
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Exhibit 4-3
Wild and Scenic Rivers Review Under Wild and Scenic
Rivers Act and Remedy Selection Under CERCLA
CERCLA/SARA
Project Phase
1RL1
RI/FS
ROD
RD/RA
Determine If proposed action
may impact any wild, scenic, or
recreational river area
No
Determine if proposed action
involves water resources action(s)
No
Yes
Evaluate primary Impacts
associated with the project
Determine If proposed action will result
in conditions consistent with the
character of the river
H
Yes
No
Mitigate or modify the
project
Development/implementation
of mitigation
No further Federal wild &
scenic rivers review required
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with DOI and DOA in determining whether the project is considered a water
resources development project, whether to proceed with the activity, and how
to eliminate direct and adverse effects. For off-site activities, the lead
agency must notify DOI or DOA and obtain consent before implementing an action
that would directly and adversely impact a designated river.
4.4.3 Documentation
When CERCLA activities potentially involve a designated river, the RI/FS
should describe the results of the analysis of impacts and discussions with
DOI or DOA. For each alternative, the ROD should state whether the alternative
will meet substantive WSRA requirements. For the selected remedy, the ROD
should also include a brief statement describing what compliance will entail.
4.5 FISH AND WILDLIFE COORDINATION ACT
4.5.1 Overview of the Fish and Wildlife Coordination Act of 1934
The Fish and Wildlife Coordination Act, 16 USC §661 et sea. , was enacted
to protect fish and wildlife when Federal actions result in the control or
structural modification of a natural stream or body of water. The statute
requires Federal agencies to take into consideration the effect that
water-related projects would have upon fish and wildlife and then take action
to prevent loss or damage to these resources. Such action should be viewed in
the context of obtaining maximum overall project benefits, i.e., cleaning up
the site. Under §662 of the Act, consultation is required with the FWS or NMFS
and the Wildlife Resources Agency of the State if alteration of the water
resource would occur as a result of off-site remedial activities. Consultation
is strongly recommended for on-site actions. The purpose of consultation is to
develop measures to prevent, mitigate or compensate for project-related losses
to fish and wildlife.
4.5.2 Summary of Fish and Wildlife ARARS for CERCLA Actions
In planning a response action, the lead agency must determine whether
the action will result in the control or structural modification of a body of
water. The types of actions that would fall under the jurisdiction of the Act
include:
Discharges of pollutants including industrial, mining,
and municipal wastes or dredge and fill material into a
body of water or wetlands;9 and
Projects involving construction of dams, levees,
impoundments, stream relocation, and water diversion
structures.
9 The requirements to comply with the Fish and Wildlife Coordination Act are
in EPA's NPDES permit regulations in 40 CFR section 122.49.
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If a response action would involve any of these activities, the lead agency
must develop measures to prevent, mitigate or compensate for project-related
losses of fish and wildlife resources.
The statute requires consultation with the FWS and the affected State for
developing measures to protect wildlife. Consultation can be carried out with the
field offices of the FWS. Consultation is required for off-site response actions
and is recommended for cleanup actions taking place entirely on-site.
4.5.3 Documentation
The RI/FS report should describe any reports or recommendations of the FWS.
When control or modification of a water body is involved, the ROD should state
whether each alternative will meet substantive Fish and Wildlife Coordination Act
ARARs, and should briefly describe requirements for the remedy selected,
including the impacts, if any, of the response alternatives on wildlife and the
mitigation measures that would be employed.
4. 6 COASTAL ZONE MANAGEMENT ACT
4.6.1 Overview of the Coastal Zone Management Act
Section 307(c)(1) of the Coastal Zone Management Act (CZMA), 16 USC §1451
et sea., requires that Federal agencies conducting or supporting activities
directly affecting the coastal zone conduct or support those activities in a
manner that is consistent with approved State coastal zone management programs. A
State coastal zone management program (developed under State law and guided by
the CZMA) sets forth objectives, policies, and standards to guide public and
private uses of lands and waters in the coastal zone. The State coastal zone
management program must be approved by the Secretary of Commerce.
If a remedial activity will affect (adversely or not adversely) the coastal
zone of a State with an approved coastal zone management program, the lead agency
is required to determine whether the activity will be consistent, to the maximum
extent practicable (CZMA §307(c)), with the State's coastal zone management
program and must notify the State of its determination. (If an off-site remedial
activity requires a Federal permit, which will not occur often, the State must
certify that the proposed activity complies with its coastal zone management plan
[CZMA §307(c) (3) ] . )
Copies of State management plans may be obtained from the coastal
commission of each State. All coastal States have approved State management plans
except for Georgia, Texas, Ohio, Indiana, Illinois, and Minnesota.
The term "coastal zone" is identified in the Act as "the coastal waters
(including the lands therein and thereunder) and the adjacent shorelands
(including the waters therein and thereunder), strongly influenced by each other
and in proximity to the shorelines of the several coastal States, and includes
islands, transitional and intertidal areas, salt marshes, to the
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international boundary between the United States and Canada and in other areas,
seaward to the outer limit of the U.S. territorial sea. The zone extends inland
from the shorelines only to the extent necessary to control shorelands, the uses
of that have a direct and significant impact on the coastal waters."
4.6.2 Summary of Potential Coastal Zone Management Act ARARS for CERCLA
Activities
To comply with the CZMA, the lead agency should identify remedial
activities that would directly affect the coastal zone and then undertake the
following:
Review the State coastal zone management plan and
determine whether remedial activities would be
consistent with the plan (if a Federal permit(s)
required, the appropriate State coastal zone
management authority would make such a
determination);
Prepare a consistency determination (or its
equivalent for on-site activities) that includes:
A detailed description of the remedial action,
its associative facilities, and coastal zone
effects;
A brief statement on how the remedial action,
to the maximum extent practicable, would be
consistent with the State coastal zone
management plan; and
Data to support the consistency determination.
4.6.2.1 On-site activities
Under CERCLA, on-site actions are not subject to administrative review
processes. However, it is the lead agency's responsibility to ensure that on-site
actions will comply with all of the substantive requirements under a State's
coastal zone management plan. The lead agency should document that substantive
requirements will be met by developing an analysis similar to a consistency
determination. The lead agency is strongly encouraged to consult with the State
coastal zone management agency in determining whether substantive requirements
will be met.
4.6.2.2 Off-Site Activities
For off-site remedial actions, the lead agency should notify the
responsible State agency of its consistency determination as early as possible in
the planning process (when sufficient data is available) but before the lead
agency reaches a significant point in the decision making, i.e., at least
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Exhibit 4-4
Coastal Zone Review Under Coastal Zone Act and Remedy Selection
Under CERCLA
CERCLA/SARA
Project Phase
IRL1
RI/FS
ROD
RD/RA
Yes
1-
Determine whether the proposed
action may directly affect a
coastal zone
No
Determine whether permits or
licenses will be required
No
Yes
EPA makes consistency
determination under
301(C)(1)or(2)
EPA seeks consistency
determination with
approved State coastal
zone management plan
under 301 (C)(3)
Inconsistent
Determine whether
consistent or
inconsistent
Mitigate or modify the
project
Development/implementation
of mitigation
No further Federal coastal zone
review required
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90 days before final approval of the remedial action. The consistency
determination is a brief statement indicating how the remedial action will be
undertaken in a manner consistent with the State's coastal zone management
program. The consistency determination must include a detailed description of the
proposed remedial action, its associated facilities and their combined coastal
effects, as well as data and information to support the Federal agency's
conclusion. The consistency determination need not follow a particular format as
long as all the substantive information is included.
State agencies are required to respond to a consistency determination
within 45 days from receipt of the notice. If a State fails to provide a
response, the lead agency should assume State agreement. An off-site remedial
activity may not be taken sooner than 90 days from issuance of a consistency
determination unless both the lead agency and the responsible State agency agree
to an alternative period.
If the State agency disagrees with a consistency determination, the State
will respond with its reasons for disagreeing and provide supporting
documentation. The response will address how the activity will be inconsistent
with specific elements of the coastal zone management plan and alternative
measures that can be undertaken to allow the activity to proceed consistent with
the management program.
When disagreement occurs, the lead agency and responsible State agency
should utilize the remaining portion of the 90-day notification period to resolve
their differences. If disagreement continues, the 90-day period may be suspended
until the disagreement is resolved. However, the lead agency would not have to
delay or abandon implementation of the response action identified by the State as
inconsistent with the coastal program as long as the lead agency maintains that
the action is consistent, to the maximum extent practicable, with the coastal
program.
There are a number of procedures for resolving State/Federal conflicts.
These include:
Informal discussions between the parties, assisted by the Department
of Commerce, Office of Coastal Zone Management;
Mediation by the Secretary of Commerce with public hearing; and
Judicial review by either party.
4.6.3 Documentation
When remedial activities will directly affect a coastal zone, the RI/FS
should describe compliance with the State's CZMA and should incorporate the
consistency determination, or its equivalent. The ROD should identify the CZMA as
an ARAR and state whether each alternative will meet CZMA requirements.
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4.7 WILDERNESS ACT
The Wilderness Act, 16 USC §§1131 et seq. . creates the National Wilderness
Preservation System. The intent of the law is to administer units of this System
(i.e., Wilderness Areas) in order to preserve their wilderness character and to
leave them unimpaired for future use as wilderness.
In complying with the Wilderness Act, the RPM must first identify whether
proposed remedial activities will impact designated wilderness areas (see 16 USC
§1132). The Regional NEPA Compliance staff should be able to identify these
areas. If a proposed remedial activity will impact a wilderness area, the RPM
should consult with the NEPA Compliance staff and the administering agency to
determine the prohibitions on activities in the wilderness area and whether
exemptions to these prohibitions are necessary and can be obtained. For example,
the RPM may have to implement a remedial activity that uses only temporary
structures and roads, or certain kinds of equipment.
4.7.1 Documentation
When remedial activities will impact a wilderness area, the RI/FS should
describe compliance with the Wilderness Act. The ROD should identify the
Wilderness Act as an ARAR and state whether each alterative will meet the ARAR.
For the selected remedy, the ROD should also briefly state what compliance with
the Wilderness Act will entail.
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Exhibit 4-5
Wilderness Area Review Under Wilderness Area Act and
Remedy Selection Under CERCLA
CERCLA/SARA
Project Phase
1RL.1
liii^iyiHiili^jJillis'sjjjilfsliiiiiJf^n!
Jjllj'miiiii"'" *"""""
::Ji!.|!!i||i.»««p^^:
i71 rii d tit * "s
j j j( >[AJJ *I^'M'
: i i ;, i f t te i iifle
i h! t tli±"
I ! J ^ iilfiJ! 4 *,
ROD
RD/RA
Yea L Determine wti
1 action may i
\
Consult wfth DOI or USDA 1
Evaluate Impact of proposed |
action and alternatives on the 1
wUdtmas* area |
\
Mitigate or modify the 1
project 1
Development/Implementation 1
of mitigation |
area
No
No further Federal wilderness
area review required
The Interagency Review Letter (IRL), formerly known as the A-95 Clearing House Letter, is the
scoping phase of the process.
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CHAPTER 5
STANDARDS, ADVISORIES, AND GUIDANCE
FOR THE MANAGEMENT OF RADIOACTIVE WASTE
5.0 OVERVIEW
Very few applicable standards exist for the cleanup of radioactively
contaminated sites and buildings. The principal exceptions are health and
environmental protection standards for mill tailings under the Uranium Mill
Tailings Radiation Control Act (see Section 5.1.1.4 of this chapter). Other
standards described here are likely only to be relevant and appropriate because
of the jurisdictional framework of the radiation statutes. EPA is developing
standards and guidance for residual radioactivity for cleanup of sites where
radionuclides have been used.1 Such standards, when promulgated, will be
potentially applicable or relevant and appropriate requirements (ARARs) for
CERCLA sites.
This chapter provides guidance on the potential applicability or relevance
and appropriateness of standards for management of mill tailings and on other
radiation standards that may be relevant and appropriate to CERCLA actions.
Determinations of what is an ARAR will be based on site-specific evaluations.
Several agencies have authority over the cleanup of sites contaminated with
radioactive materials. Each agency has a variety of general regulations that
could be applicable to sites within the agency's purview, or may be relevant and
appropriate to CERCLA sites with similar radioactive contamination. In addition,
there are a variety of radiation advisories and guidance that, while not ARARs,
may be considered when developing protective remedies at CERCLA sites.
The primary agencies that have regulatory programs for the cleanup of
radioactively contaminated sites and buildings are EPA, the Nuclear Regulatory
Commission (NRC), the Department of Energy (DOE), and States. Several other
Federal agencies also have regulatory programs for radioactive waste, but these
programs generally are more narrow in scope than those of EPA, NRC, and DOE. In
addition, a few non-government, scientific organizations issue important
advisories and guidance related to radioactive waste management. Briefly, the
main functions and areas of jurisdiction of all of these organizations are as
follows:
EPA's authority to protect public health and the
environment from adverse effects of radiation exposure is
derived from several statutes, including the Atomic
Energy Act, the Clean Air Act, the Uranium Mill Tailings
Radiation Control Act (UMTRCA), the Nuclear Waste Policy
Act, RCRA, and CERCLA. The Agency's major
responsibilities in the radiation area are to establish
Advance Notice of Proposed Rulemaking, 51 FR 22264; also Regulatory
Agenda 53 FR 14365, Regulation Identification No. 2060-AB31.
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Act, RCRA, and CERCLA. The Agency's major
responsibilities in the radiation area are to establish
Federal guidance and standards, assess new technologies,
and monitor radiation in the environment. EPA also has
lead responsibility in the Federal government for
advising all Federal agencies on radiation standards.
EPA's radiation standards apply to many different types
of activities involving all types of radioactive material
(i.e., source, byproduct, special nuclear, and naturally
occurring and accelerator-produced radioactive material
[NARMI)2. For some EPA standards, implementation and
enforcement responsibilities are vested in other
agencies, such as the NRC and DOE.
NRC licenses the possession and use of certain types of
radioactive material at certain types of facilities.
Specifically, the NRC is authorized to license source,
byproduct, and special nuclear material; it is not
authorized to license NARM, although NARM may be
partially subject to NRC regulation when it is associated
with material licensed by the NRC. Most of DOE's
operations are exempt from NRCs licensing and regulatory
requirements, as are certain Department of Defense (DOD)
activities involving nuclear weapons and the use of
nuclear reactors for military purposes.
DOE is responsible for conducting or overseeing
radioactive material operations at numerous government
owned/contractor- operated facilities. DOE is also
responsible for managing several inactive sites that
contain radioactive contamination, such as sites
associated with the Formerly Utilized Sites Remedial
Action Program (FUSRAP), the Uranium Mill Tailings
Remedial Action Program (UMTRAP), the Grand Junction
Remedial Action Program (GJAP), and the Surplus
Facilities Management Program (SFMP). DOE is authorized
to control all types of nuclear materials at sites within
its jurisdiction.
Source material is defined as: (1) natural uranium, thorium, or any
combination thereof; or (2) ores that contain 0.05 percent or more (by weight)
uranium or thorium. Byproduct material is: (1) any material made radioactive by
exposure to radiation in the process of producing or using special nuclear
material; or (2) the wastes produced by the extraction or concentration of
uranium or thorium from ore (i.e., uranium or thorium mill tailings). Special
nuclear material is defined as plutonium or uranium enriched in the U-235 or
U-233 isotope. NARM includes: (1) a variety of naturally occurring radionuclides
other than uranium or thorium, such as radium in discrete sources or wastes from
mineral extraction industries; or (2) a variety of accelerator-produced
radionuclides mostly used in medicine and in research.
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Other Federal agencies with regulatory programs
applicable to radioactive waste include the Department of
Transportation (DOT) and DOD. DOT has issued regulations
that set forth packaging, labeling, record keeping, and
reporting requirements for the transport of nuclear
material (see 49 CFR Parts 171 through 179). Most of
DOD's radioactive waste management activities are
regulated by the NRC and/or EPA (see Section 5.1.1.1 of
this chapter). However, DOD has its own program for
controlling wastes generated for certain nuclear weapon
and reactor operations for military purposes. Other
agencies, such as the Federal Emergency Management Agency
(FEMA) and the Department of Interior (DOI), may also
play a role in radioactive waste cleanups in certain
cases .
States have their own authority and regulations for
radioactive material and waste. In addition, 29 States
(Agreement States) have entered into agreements with NRC,
under which NRC has relinquished to such States its
regulatory authority over source, byproduct, and small
quantities of special nuclear material. Both Agreement
States and Nonagreement States also can regulate NARM.
Such State-implemented regulations are potential ARARs.
Non-government organizations include the National Council
on Radiation Protection and Measurements (NCRP) and the
International Commission on Radiological Protection
(ICRP). The NCRP was chartered by Congress to collect,
analyze, develop, and disseminate information and
recommendations about radiation protection and
measurements. The ICRP's function is basically the same,
but on an international level. Although neither NCRP nor
ICRP have regulatory authority, their recommendations
serve as the basis for nearly all Federal and State
general (i.e., not source-specific) regulations on
radiation protection.
The standards, advisories, and guidance of these various groups are
designed primarily to be consistent with each otherthey often overlap in scope
and purpose and incorporate the same basic provisions. Nevertheless, there are
important differences between programs in some cases. It is important for these
differences to be well understood so that when more than one set of standards is
potentially applicable or relevant and appropriate to the same CERCLA site, the
lead agency will be able to evaluate which standards are actually applicable or
relevant and appropriate. In general, decisions concerning what is an ARAR for a
site contaminated with radioactive waste will depend on: (1) what type of site it
is (defined by the radioactive constituents present and the functional operations
that generated the site); (2) whose regulatory jurisdiction the site falls under;
and (3) which regulation is most protective, or if relevant and appropriate, most
appropriate given site conditions (see Chapter 1 in Part I for discussion of the
applicable or relevant and appropriate determination).
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The remainder of this chapter is divided into three main sections that
separately address the programs of EPA, NRC, and DOE. State programs will be
addressed in a separate part of this guidance manual. Within each section, the
discussion focuses on decision criteria for determining when a regulation is an
ARAR, or when and how advisories or guidance should be considered. Where
appropriate, the discussion of each regulation also describes its relationship
with other regulations in order to help identify where the regulations are in
conflict and when one regulation should be used over another. For further
information on radiation standards, advisories, and guidance, the lead agency
should consult with EPA's Office of Radiation Programs (ORP) and/or Regional
Radiation Representatives.
5.1 EPA PROGRAMS
EPA's regulatory program for radiation protection is very broad in scope,
covering many activities involving all types of radioactive material. Section
5.1.1 discusses those EPA radiation regulations that could be ARARs, and Section
5.1.2 discusses those EPA advisories and guidance that may be useful to consider
when cleaning up a radioactively contaminated site.
5.1.1 Potential EPA ARARs
Existing EPA regulations that may be applicable or relevant and appropriate
to CERCLA responses at radioactively contaminated sites include those found in 40
CFR Parts 61, 141, 190, 192, and 440.3
5.1.1.1 40 CFR Part 61: National Emissions Standards for Hazardous Air
Pollutants : Sta.nda.2rds for RadionucJ.ides
Pursuant to section 112 of the Clean Air Act, EPA has issued final
standards for radionuclide emissions to the air as part of the National Emissions
Standards for Hazardous Air Pollutants (NESHAPs). The radionuclide
EPA also has environmental standards (see 40 CER Part 191) for the
management and disposal of spent nuclear fuel, high-level, and transuranic wastes
at facilities licensed by NRC or Agreement States, or at DOE-operated disposal
sites. For most CERCLA sites, Part 191 is not likely to be pertinent and thus is
not discussed here. However, where radium concentrations are high, it may be
appropriate to treat the wastes as though they were transuranic; therefore, the
requirements of 40 CFR Part 191 for the storage and disposal of these wastes may
be relevant and appropriate. In addition, EPA's regulations in 40 CFR Part 227
establish criteria that will be used to evaluate a permit application to dispose
of waste materials, including low-level radioactive waste, in the ocean. However,
ocean dumping of low-level waste will (in most cases) not be an available waste
disposal alternative because recent amendments to the Ocean Dumping Act require a
joint resolution of Congress before EPA can issue a permit to dispose of
low-level waste in the ocean. This requirement will make it very difficult to get
approval to dispose of radioactive waste in this manner; therefore, it is
unlikely that 40 CFR Part 227 will be pertinent to CERCLA responses.
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NESHAPs are presented in five different subparts of Part 61; each subpart
addresses a different source category. Subparts H and I, which address DOE,
NRC-licensed, and non-DOE Federal facilities, are most likely to be applicable to
CERCLA responses. The applicability or relevance and appropriateness of all of
the radionuclide NESHAPs are discussed in Section 2.1.2.2 of Chapter 2 in this
Part.
5.1.1.2 40 CFR Part 141: National Interim Primary Drinking Water
Regulations
Under the authority of the Safe Drinking Water Act, EPA has promulgated
maximum contaminant levels (MCLs) for radionuclides in community water systems.
MCLs for radionuclides have been established in two forms: radioactivity
concentration limits for certain alpha-emitting radionuclides and an annual dose
limit for the ingestion of certain beta/gamma-emitting radionuclides. See Section
1.2.4.3 of Chapter 1 ("General Procedures for CERCLA Compliance With Other
Statutes") and Section 4.2.1 of Chapter 4 ("Guidance for Compliance With
Requirements of the Safe Drinking Water Act") of Part I of this guidance manual
for a discussion on the relevance and appropriateness of drinking water MCLs.
5.1.1.3 40 CFR Part 190: Environmental Radiation Protection Standards for
Nuclear Power Operations
These standards, which were promulgated under authority of the Atomic
Energy Act, set limits on radiation doses received by members of the general
public from operations within the uranium fuel cycle (i.e., uranium milling,
production of uranium hexafluoride, uranium enrichment, uranium fuel fabrication,
operations of nuclear power plants using uranium fuel, and reprocessing of spent
fuel). Part 190 states that these operations shall be conducted in a manner that
limits the annual dose received by any member of the public to 25 millirem to the
whole body, 75 millirem to the thyroid, and 25 millirem to any other organ. The
standards apply to normal operations and planned discharges, not cleanup actions
like those conducted under CERCLA. Therefore, 40 CFR Part 190 would not be
applicable to CERCLA responses. The standards, however, may be relevant and
appropriate to releases of radionuclides and radiation during the cleanup of
radioactively contaminated sites. When evaluating the relevance and
appropriateness of 40 CFR Part 190, lead agencies should consider that the
standards apply to releases to all media and all potential exposure pathways
(including direct radiation), but do not apply to doses caused by radon and its
daughters.
5.1.1.4 40 CFR Part 192: Health and Environmental Protection Standards for
Uranium and Thorium Kill Tailings
The Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA) directed
EPA to set standards to govern the stabilization, disposal, and control of
uranium and thorium mill tailings. These standards have been promulgated in 40
CFR Part 192.
The standards in Part 192 apply to mill tailings at two categories of
sites: (1) certain inactive uranium processing sites "designated" for
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remedial action under section 102 of UMTRCA;4 and (2) commercial uranium and
thorium processing sites licensed by the NRC or States (see Exhibit 5-1 for the
standards for each type of site).5 Subparts A (for long-term internment of
wastes), B (for lands or buildings with unrestricted use), and C (supplemental
standards) of Part 192 apply to the designated inactive sites. DOE is responsible
for conducting necessary remedial actions at these sites in order to comply with
EPA's standards. Subparts D (for uranium) and E (for thorium) of Part 192 apply
to the licensed commercial sites. Enforcement responsibilities for these subparts
are vested in the NRC or the State that licenses the sites. The regulations for
designated inactive sites and licensed commercial sites are similar with respect
to design standards for control of releases. However, there are no general
ground-water, closure, and corrective action standards for the inactive sites.
Ground-water standards for inactive sites have been proposed (52 Efi 36000,
September 24, 1987) and are expected to be promulgated in early 1989.6
Cleanup actions under CERCLA may be taken at licensed commercial uranium or
thorium processing sites, and Subparts D and E are potentially applicable for any
CERCLA actions taken at these sites.7 Part 192 also may be relevant and
appropriate for remedial actions at other CERCLA sites that contain materials
other than, but sufficiently similar to, uranium and thorium mill tailings (i.e.,
radium components of copper, zinc, aluminum and other ore-processing residues,
contaminated soil, or any other waste-containiug more than 5 picocuries/gram of
radium). The subsections that follow provide additional discussion on how these
standards could be ARARs. For further guidance on this subject, lead agencies
should consult with EPA's Office of Emergency and Remedial Response (OERR), ORP,
and Regional Radiation Representatives. Lead agencies should also coordinate with
OERR and the Office of Solid Waste (OSW) when developing ground-water protection
standards at uranium and thorium mill tailings sites.
Title I, section 102, of UMTRCA requires DOE to complete remedial action at
22 specifically named (i.e., designated) inactive sites. It also authorizes DOE to
designate any other processing site in the U.S. that requires remedial action in
order to protect the public health, safety, and environment. DOE has designated two
additional sites for remedial action under this authority.
5 For licensed sites, NRC or State requirements would also apply, and the NRC
and appropriate State should be consulted.
6 Under UMTRCA §108(a) (3), DOE must meet the proposed standards until EPA
finalizes the rule.
In general, the standards in Subparts A, B, and C are applicable for cleanup
actions conducted by DOE at the designated inactive uranium processing sites. DOE's
cleanup actions at the designated inactive sites are conducted under UMTRCA, but not
CERCLA, because releases of source, byproduct, and special nuclear material from
these sites are excluded from CERCLA1s definition of release (see CERCLA
§101(22)(C)).
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EXHIBIT 5-1
HEALTH AND ENVIRONMENTAL PROTECTION STANDARDS
FOR URANIUM AND THORIUM MILL TAILINGS27
Type of Site
Requirement
Citation
Inactive uranium
processing sites
designated for
remedial action
Performance standards for long-term
effectiveness of remedial actions for
controlling radioactive release.
Design requirements for remedial
actions for controlling releases of
radon-222.
Concentration limits for cleanup of
radium-226 contamination in land at a
processing site.
Concentration limits for cleanup of
radon decay products and gamma
radiation in habitable or occupied
buildings on a processing site.
40 CFR section
192.02(a)
40 CFR section
190.02(b)
40 CFR section
192.12(a)
40 CFR section
192.12(b) (1) -
(b) (2)
Active commercial
uranium and
thorium processing
sites licensed by
the NRC or States.
Active commercial
uranium and
thorium processing
sites licensed by
the NRC or States.
Closure performance standards for
controlling radiological hazards at
disposal areas.
Closure design standards to control
releases of radon-222 at disposal
areas.
Concentration limits for radium-226
contamination in land at a licensed
and/or disposal site.
Ground-water protection standards for
uranium byproduct contamination of
ground water during processing
operations.
Requirements for closure of uranium
and thorium mill tailings sites.
Corrective action requirements for
cleanup of contaminated ground water.
40 CFR section
192.32
(b) (1) (i)
40 CFR section
192.32
(b) (1) (ii)
40 CFR section
192.32(b) (2)
40 CFR section
192.32 (a) (2)
40 CFR section
192.32 (b)
40 CFR section
192.33
a/ Uranium Mill Tailings Radiation Control Act of 1978 ( UMTRCA)
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Standards for Inactive Uranium Processing Sites
The standards for inactive uranium processing sites are organized into
control standards, standards for cleanup, and supplemental standards. Each set
of standards is summarized below.
Control Standards. The purpose of the control standards set forth in 40
CFR Part 192 Subpart A is to provide for long-term stabilization and isolation
in order to inhibit misuse and spreading of residual radioactive materials,11
control releases of radon to air, and protect ground water and surface water.
The standards for stabilization/isolation and radon releases are referenced in
Exhibit 5-1; with respect to surface- and ground-water protection, the
standards state that existing Federal and State regulations should be used and
site-specific measures applied where needed.
Cleanup Standards. The standards set forth in 40 CFR Part 192 Subpart B
apply to the cleanup of residual radioactive material from land and buildings.
The purpose of the standards for land cleanup is to limit the risk from
inhalation of radon decay products in houses built on land contaminated with
tailings, and to limit gamma radiation exposure of people using contaminated
land. The specific standards are referenced in Exhibit 5-1. It is important to
clarify that the land cleanup standards apply to "dispersed tailings," i.e.,
windblown or buried tailings on the processing site but separate from the
tailings pile itself. When tailings have been transported off the processing
site, cleanup of the off-site area to the levels described above also would be
required.
The objective of the cleanup standards for buildings is to reduce
elevated indoor levels of radon decay products and gamma radiation due to
residual radioactive material. Section 192.20(b)(3) states that remedial
actions are not required to comply with the cleanup standards when there is
reasonable assurance that residual radioactive materials are not the cause of
an exceedance of the standards. Section 104(a)(3)(A) and (B) of CERCLA as
amended by SARA prohibits response to releases of a naturally occurring
substance "in its unaltered form" or "from products which are part of the
structure of ... residential buildings or business or community structures."
While radon is a naturally occurring substance, the radon cleanup standard in
Part 192 is for increased radon levels created by man (i.e., from uranium mill
tailings), not natural releases from an unaltered form. Similarly, the radon
that is the subject of the standards is not from products that are part of the
building's structure. Therefore, the cleanup standards for buildings may be
ARARs for CERCLA responses to increased radon levels created by human
activity.
Supplemental Standards. As set forth in 40 CFR Part 192 Subpart C,
alternative site-specific standards may be established under some special
8 In the UMTRCA context, the term "residual radioactive material" means
tailings and other waste that result from the processing of ores for the
extraction of uranium.
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circumstances that allow the selection and performance of remedial actions
that come as close as reasonably achievable to meeting the more stringent
standards discussed above. In general, these supplemental standards are not
expected to be used often; they were provided for situations in which worker
safety is an issue (such as remedial actions in the vicinity of steep cliffs
or ravines), or for situations in which the materials do not pose a clear
present or future hazard and improvements could be achieved only at
unreasonably high cost. The supplemental standards should be used only when
any of the following circumstances exist (see 40 CFR section 192.21 for more
detail):
(a) Remedial actions "would pose a clear and present
risk of injury to workers or to members of the
public notwithstanding reasonable measures to
avoid or reduce risk;"
(b) Remedial actions would create environmental harm
that is "... long-term, manifest, and grossly
disproportionate to health benefits that may
reasonably be anticipated;"
(c) The estimated costs of cleaning up land are
unreasonably high relative to the long-term
benefits, and the residual radioactive materials
do not pose a clear present or future hazard;
(d) The cost of cleaning up a building is clearly
unreasonably high relative to the benefits;
(e) There is no known remedial action; and
(f) Radionuclides other than radium-226 and its
decay products are present in significant
quantities and concentrations.
To assure remedies are adequately protective, the lead agency should use caution
when considering the supplemental standards and should consult with OERR, ORP,
and Regional staff before adopting supplemental standards for a CERCLA site.
Although formal guidance on the use of these supplemental standards has not been
prepared, there are several ORP memoranda that address this issue.9
Standards for Licensed Commercial Sites
As noted previously, the standards for licensed commercial sites are
similar to those for inactive sites. However, the standards for licensed
commercial sites address ground water and include the general design,
9 For example, a memorandum from Allan Richardson (ORP) to William Librizzi
(Emergency and Remedial Response Division), dated February 21, 1985, concerning
the applicability of secondary standards to the Montclair/West Orange and Glen
Ridge Radon sites.
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construction, operation, closure, and corrective action requirements spelled out
under RCRA. For example, these standards require surface impoundments to be
designed and constructed in compliance with 40 CFR section 264.221, mill tailings
to be managed so as to comply with the ground-water protection standard of 40 CFR
section 264.92, and disposal areas at the end of the closure period to comply
with the closure performance standard of 40 CFR section 264.111. These standards
supplement the ground-water protection standards under RCRA by adding the
elements molybdenum and uranium to the list of hazardous constituents referenced
in 40 CFR section 264.93 and by specifying concentration limits for
radioactivity. For a discussion of the applicability or relevance and
appropriateness of RCRA requirements, see Chapter 2 of Part I.
5.1.1.5 40 CFR Part 440: Guidelines and New Source Performance
Standards for Ore Mining and Dressing Point Source Category
Effluent Limitations
Subpart C of 40 CFR Part 440 establishes radionuclide concentration limits
for liquid effluents from facilities that extract and process uranium, radium,
and vanadium ores. These standards are applicable to surface-water discharges
from certain kinds of mines and mills; they also may be relevant and appropriate
to CERCLA actions involving discharges to surface waters of radioactively
contaminated waste from other kinds of sites. These standards are more stringent
than the NRC's concentration limits for discharges of uranium and radium to
unrestricted waters (see 10 CFR Part 20, Appendix B, Table II). Therefore, when
both 40 CFR Part 440 and 10 CFR Part 20 may be ARARs for the same site, the lead
agency should apply the concentration limits in 40 CFR Part 440.
5.1.2 EPA Advisories and Guidance To Be Consider
EPA has published several advisories and/or pieces of guidance that may be
useful for the lead agency to consider when conducting CERCLA responses at
radioactively contaminated sites. Some of these are described briefly below:
"A Manual of Protective Action Guides and Protective
Actions for Nuclear Incidents," EPA-520/1-75-001 (this
document is in a loose-leaf binder form that is
periodically updated) provides practical guidance to
State, local, and other officials on criteria to use
in planning protective actions for radiological
emergencies that could present a hazard to the public.
Interim agency recommendations are available for
evacuation, temporary sheltering, and food
replacement; guidance is also being developed for
longer-term evacuation and decontamination. For
further guidance on the use of this document, the lead
agency should contact EPA's ORP.
A series of publications on techniques for reducing
indoor radon levels (for example, "Radon Reduction
Techniques for Detached Houses -- Technical Guidance,"
EPA/625/5-86/019,
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June 1986) focus on temporary mitigation
techniquesnot techniques for removing contaminated
soil.
"Technological Approaches to Cleanup of Radiologically
Contaminated Superfund Sites," published on May
23, 1988, identifies technologies potentially useful
in removing the threat of radioactivity from Superfund
sites that contain radionuclides.
"Guidance on the Definition and Identification of
Commercial Mixed Low Level Radioactive and Hazardous
Waste" provides guidance on when and how RCRA should
apply to the management of low-level radioactive
waste. (The document, published jointly in January
1987 by EPA and NRC, appears as an attachment to a
March 2, 1987, memorandum from OSW Director Marcia
Williams to the Directors of EPA's Regional Hazardous
Waste Divisions.)
"Suggested Guidelines for the Disposal of Naturally
Occurring Radionuclides Generated by Drinking Water
Treatment Plants," draft report prepared by the
Radionuclide Waste Disposal Workgroup for EPA's Office
of Drinking Water, January 1988. This document
provides guidance to water suppliers and to State and
local governments for the proper handling and disposal
of waste byproducts from treatment facilities removing
naturally occurring radionuclides from drinking water.
This guidance may be useful for CERCLA actions
involving ground-water extraction and treatment
because naturally occurring radionuclides may
concentrate in the treatment medium thus requiring
special precautions for disposal.10
5.2 NRC PROGRAMS
The NRC licenses the possession and use of source, byproduct, and
special nuclear material. The approximately 9,000 NRC licensees cover a wide
spectrum in terms of the quantity of radioactive material possessed and the
complexity of their operations. An extensive regulatory program exists to
control the nuclear material operations of these licensees. As discussed in
Section 5.2.1 many of the NRC's regulations are potential ARARs and, as
discussed in Section 5.2.2, many NRC advisories and guidance materials would
be useful to consider during CERCLA actions at radioactively contaminated
sites.
10 A joint OERR/ORP project is underway to study potential problems created
when naturally occurring radionuclides are collected and concentrated in
treatment systems used in Superfund remediations.
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5.2.1 Potential NRC ARARs
The NRC regulations that likely will have the greatest bearing on CERCLA
responses are those contained in 10 CFR Parts 20 and 61. These regulations are
discussed in Sections 5.2.1.1 and 5.2.1.2. Several other NRC regulations,
however, may also be important, including those found in 10 CFR Parts 30, 40,
and 70. These other regulations are discussed in Section 5.2.1.3. Key sections
of all of these NRC regulations are summarized in Exhibit 5-2."
5.2.1.1 10 CFR Part 20: Standards for Protection Against Radiation
These standards are designed to limit radiation hazards caused by NRC-
licensed activities. They apply to all NRC licensees, regardless of the type
or quantity of nuclear material possessed or the type of operations conducted.
Part 20 contains many substantive requirements that may have a bearing on
CERCLA responses, including permissible dose levels (in terms of the general
public's exposure to radiation), radioactivity concentration limits for
effluents, precautionary procedures, and waste disposal requirements.
In general, 10 CFR Part 20 may be applicable to CERCLA actions at NRC-
licensed facilities. Part 20 also may be relevant and appropriate to CERCLA
actions at radioactively contaminated sites not licensed by the NRC. However,
although numerous technical and administrative changes have been made to the
standards since they were first developed in the late 1950's, Part 20 is now
undergoing major revisions that will incorporate current developments in
radiation protection principles (a proposed revision to Part 20 was published
on January 9, 1986, 51 FR 1092). The proposed revisions to 10 CFR Part 20
should be considered when developing a protective remedy. When promulgated,
these revisions would be potential ARARs.
The following sections summarize the provisions in Part 20 that
establish permissible levels of radiation in unrestricted areas, concentration
limits for discharges to unrestricted areas, and waste disposal requirements;
the specific limits set by these provisions are listed in Exhibit 5-2. These
provisions probably are the most important to CERCLA actions, but lead
agencies should be aware that other provisions in Part 20 are also potential
ARARs.
Permissible Levels of Radiation in Unrestricted Areas
Part 20 establishes a general requirement that persons engaged in NRC-
licensed activities make every reasonable effort to maintain radiation
exposures "as low as is reasonably achievable" (ALARA). In addition, Part 20
establishes several specific radiation dose limits for the protection of
workers and members of the public (see Exhibit 5-2). The dose limits that
11 Additional NRC regulations in 10 CFR Part 60, which govern the disposal
of high-level radioactive wastes in geologic repositories, are not likely to
be pertinent to CERCLA actions and thus are not discussed in this chapter.
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EXHIBIT 5-2
SELECTED NUCLEAR REGULATORY COMMISSION REQUIREMENTS
FOR RADIOACTIVE WASTE MANAGEMENT3/
Action
Requirement
Citation
Protection of Variety of radiation exposure limits
workers in including dose limit of 1.25 rem/quarter
restricted areas to whole body.
Protection of
the public
Radiation exposure limited to:
Whole body dose of 0.5 rem/year;
0.002 rem/hour;
0.1 rem in any 7 consecutive days;
and
The dose limits in 40 CFR Part 190
for uranium fuel cycle operations.
Discharge to air Discharges must meet
and water radionuclide-specific concentrations
limits in 10 CFR Part 20, Appendix B
Waste treatment
and disposal
10 CFR section
20.101-20.104
10 CFR section
20.105
10 CFR section
20.106
Various waste disposal requirements are 10 CFR section
set that include concentration limits for 20.301 and
disposal into sewers and for 20.302(a)
incineration.
a/ These standards are applicable to all categories of NRC
licensees and to Agreement State licensees. Thus, they are
potentially applicable only for CERCLA actions at sites licensed by
the NRC, but may be relevant and appropriate to other radioactivity
contaminated sites.
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apply to members of the public are considered high relative to recent EPA
standards (e.g., 40 CFR Parts 61 and 190) and may, depending on the
circumstances at the site, be superceded by more stringent ARARs. The levels
are based on the "Radiation Protection Guidance to Federal Agencies for the
General Population," published by the Federal Radiation Council in 1960 (25 FR
4402), which is currently being reviewed by EPA in concert with other Federal
agencies.
Lower dose limits currently apply to most radionuclide releases from NRC
licensees. For example, 10 CFR section 20.106(g) incorporates the provisions
of 40 CFR Part 190, which establish significantly lower dose limits for all
releases from NRC-licensed operations within the uranium fuel cycle (see
Section 5.1.1.3 of this chapter). Also, airborne releases from NRC licensees
must not result in doses that exceed the limits set forth in the NESHAPs for
radionuclides (see Section 5.1.1.1 of this chapter).
Radioactivity in Effluents to Unrestricted Areas
Section 20.106 establishes concentration limits for numerous
radionuclides in airborne and liquid effluents to unrestricted areas. These
limits are for annual average concentrations and do not apply to disposal of
radioactive material into sanitary sewerage systems. The NRC may in some cases
approve discharges of higher concentrations of radionuclides based on analysis
of the discharge rate, properties of the effluents, anticipated human
occupancy of the receiving area, background concentration of radionuclides,
and other site-specific features.
Several EPA standards, which establish more protective levels, should be
used instead of the concentration limits in Part 20--if the EPA standards are
ARARs. Specifically, the effluent limitations in 40 CFR Part 440 for radium-
226 and uranium are more protective than the liquid effluent concentration
limits in 10 CER Part 20. The radiation dose limits in 40 CFR Parts 61 and 190
are also lower than the doses on which the Part 20 concentration limits are
based, such that the annual average concentrations in airborne and liquid
discharges may have to be lower than those specified in section 20.106 in
order to comply with 40 CFR Parts 61 and 190.
Waste Disposal Recruireinents
Part 20 allows NRC licensees to dispose of radioactive wastes in several
different ways, including by:
transfer to another NRC licensee that is specifically
authorized to receive it;
discharge to the sanitary sewer, subject to certain limits
spelled out in 10 CFR section 20.303 and EPA's radiation
standards in 40 CFR Part 190;
discharge into the ambient air or water, subject to the
concentration limits set forth in 10 CFR section 20.106
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and EPA's radiation standards in 40 CER Parts 61 and 190;
or
any other method specifically authorized by NRC under
section 20.302. Site-specific factors that NRC considers
when authorizing alternate waste disposal methods include
the kinds and quantities of radioactive materials
involved, geological and hydrological characteristics,
local surface- and ground-water uses, and the nature and
location of other potentially affected facilities.
5.2.1.2 10 CFR Part 61: Licensing Requirements for Land Disposal of
Radioactive Waste
NRC regulations in 10 CFR Part 61 establish the procedures, criteria,
and terms and conditions that apply to the issuing of licenses for the land
disposal of radioactive waste received from other persons. The regulations are
applicable to any new land disposal facility licensed by the NRC (where a new
facility is defined as a facility for which a license application is submitted
after December 27, 1982). Part 61 is applicable to existing licensed low-level
waste disposal sites at license renewal, but it is not applicable to
previously closed sites, including existing CERCLA sites containing low-level
radioactive waste. The performance objectives and technical requirements may
be relevant and appropriate to existing CERCLA sites containing low-level
radioactive waste if the waste will be permanently left on site.12 However,
radioactive wastes at CERCLA sites often fall outside the definition of wastes
covered by Part 61, particularly when naturally occurring and
accelerator-produced radioactive material (NARM) is involved.
5.2.1.3 10 CFR Parts 30, 40, and 70: Domestic Licensing of Byproduct,
Source, and Special Nuclear Material
Parts 30, 40, and 70 contain licensing requirements for the possess ion
and use of byproduct, source, and special nuclear material, respectively.
Activities associated with the generation, treatment, and storage of wastes
containing these materials are licensed under each of these Parts, subject to
the radiation protection standards in 10 CFR Part 20. Disposal of these wastes
is regulated under 10 CFR Parts 20 and 61, discussed above.
One section of these regulations that is particularly noteworthy is 10
CFR Part 40, Appendix A. Appendix A incorporates the basic provisions of
Subparts D and E of 40 CFR Part 192, and its health-based limits are entirely
12 EPA Will soon propose new environmental standards for the management,
storage, and disposal of low-level radioactive waste and certain NARM wastes
(40 CFR Part 193). As of the writing of this guidance manual, these proposed
standards were undergoing EPA's internal (Red Border) review process. Once the
EPA standards are promulgated, the NRC will make necessary conforming
amendments to Part 61. Also, lead agencies should consider the proposed EPA
standards in developing protective remedies once the standards are published.
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consistent with those in that and other EPA regulations. Appendix A, however,
contains many provisions that are not in 40 CFR Part 192, such as detailed
siting, design, and monitoring requirements. The latest revision to 10 CFR
Part 40, Appendix A, was promulgated on November 13, 1987 (52 FR 43553); this
revision addresses, at least in part, EPA's ground-water protection
requirements found in 40 CFR Part 192.
Parts 30, 40, and 70 may be applicable to CERCLA actions at sites
licensed under the respective parts. In addition, Parts 30, 40, and 70 may be
relevant and appropriate to other, non-licensed sites that contain radioactive
contamination.
5.2.2 NRC Advisories and Guidance To Be Considered
The NRC has published numerous advisories and guidance materials (e.g.,
Regulatory Guides, Technical Position Papers, and NUREG documents) that are
not ARARs but may be useful to consider when conducting CERCLA responses at
radioactively contaminated sites. Example advisories and guidance that may be
most useful are discussed below.
"Disposal or On-site Storage of Residual Thorium or Uranium (Either as
Natural Ores or Without Daughters Present) from Past Operations," is a
technical position paper published by the NRC's Uranium Fuel Licensing Branch
on October 23, 1981 (46 FR 52061). This technical position paper provides
guidance on five on-site disposal and storage options. For the different
options, there are progressively higher concentration limits for residual
radioactivity, with progressively more restrictive controls placed on sites
with higher concentrations. Option 1 establishes concentrations of natural
thorium, depleted or enriched uranium, and uranium ores that the NRC staff
believes are low enough to be buried without restrictions on the burial
methods. The concentration limits for this option were developed to be
consistent with EPA's cleanup standards in 40 CFR Part 192 (see Section
5.1.1.5 of this chapter). EPA cautions, however, that this technical position
paper is only guidance and, in places where the guidance may be less
protective or in conflict with 40 CFR Part 192, Part 192 should take
precedence.
NUREG-1101, "On-site Disposal of Radioactive Waste," provides guidance
to licensees seeking authorization (under 10 CFR section 20.302) to dispose of
small quantities of radioactive material by on-site subsurface disposal. In
particular, this guidance identifies application information to be submitted
to the NRC, disposal methods and techniques acceptable to NRC staff, limiting
conditions for disposal of different categories of radionuclides, and the
technical methodology NRC staff will use to evaluate requests for approval of
on-site burial. At present, three volumes of this guidance have been published
and a fourth is in preparation. Agencies that may use this guidance are
cautioned, however, that EPA's low-level waste disposal standards once
proposed will be more restrictive (see footnote 12 for more detail on these
forthcoming EPA standards).
Regulatory Guide 1.86, "Termination of Operating Licenses for Nuclear
Reactors," provides surface radioactivity and dose rate criteria for
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determining when facilities and equipment can be released for unrestricted
use. The criteria in this guide are the same as those published separately by
the NRC's Division of Fuel Cycle and Material Safety in July 1982 ("Guidelines
for Decontamination of Facilities and Equipment Prior to Release for
Unrestricted Use or Termination of Licenses for Byproduct, Source, or Special
Nuclear Material"). This guidance would be useful in assessing the hazards of
residual radioactivity concentrations in equipment or in buildings; it should
not be used to evaluate the concentrations in contaminated land or buried
waste. Also, lead agencies are cautioned that the concentration limits in this
guidance are quite old; however, no other guidance in this area currently
exists. New residual radioactivity criteria are currently being developed by
EPA's ORP, but these criteria are not expected to be promulgated until 1991.
The NRC has published several reports that discuss regulatory controls
for NARM. Because existing controls for NARM are fragmentary and non-uniform
on both the Federal and State level, these reports may be useful in
identifying ARARs for NARM waste at CERCLA sites. Two relatively recent
reports that may be most useful in this regard are: (1) "Naturally Occurring
and Accelerator-Produced Radioactive MaterialsThe 1987 Review," by the NRC's
Office of Nuclear Material Safety and Safeguards; and (2) "Regulation of
Naturally Occurring and Accelerator-Produced Radioactive Materials: An
Update," NUREG-0976, October 1984.
The NRC's Division of Low-Level Waste Management and Decommissioning has
published a draft Technical Position Paper entitled "Environmental Monitoring
of Low-Level Radioactive Waste Disposal Facilities" (September 1987). The
purpose of this paper is to provide guidance, developed in accordance with 10
CFR Part 61, to license applicants, licensees, and regulatory authorities with
respect to the monitoring of low-level waste facilities. This document
presents the NRC staff's opinion on technical requirements for site
environmental monitoring, as well as a rationale for the need and use of the
types of monitoring suggested.
Finally, Appendix E of Revision 1 to NUREG-1213, "Plans and Schedules
for Implementation of U.S. Nuclear Regulatory Commission Responsibilities
Under the Low-Level Radioactive Waste Policy Amendments Act of 1985," lists
numerous NRC publications on low-level waste disposal. The documents listed
might be of interest to technical staff developing remedial action
alternatives and designs.
5.3 DOE PROGRAMS
As noted in the introduction of this chapter, most of DOE's operations
are exempt from NRC's licensing and regulatory requirements. DOE's
requirements for radiation protection and radioactive waste management are
spelled out in a series of internal DOE orders. These orders, which are issued
under the authority of the Atomic Energy Act and other statutes, have the same
force for DOE facilities or "within DOE" as does a regulation. The
requirements in the orders are legally enforceable by DOE against contractors
that operate DOE installations; the orders do not apply to sites outside of
DOE's jurisdiction.
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The DOE orders are not promulgated requirements and are not potential
ARARs. The orders have been developed for internal DOE use and are applicable
only to DOE facilities. DOE orders are not subjected to public review and
comment before issuance, and they are legally binding only because of
contractual arrangements between DOE and its contractors (i.e., they are not a
matter of public law).
Because DOE's orders typically incorporate requirements promulgated by
other Federal agencies, the orders should be consistent with existing
regulations. To the extent that DOE orders are more stringent or cover areas
not addressed by existing ARARs, they should be considered when necessary to
develop a protective remedy.
The most important DOE order concerning radiation protection and
radioactive waste management is DOE 5400.3, "Radiation Protection of the
Public and the Environment." DOE 5400.3 will integrate, consolidate, and
update existing DOE requirements.13 As of early 1989, DOE 5400.3 was undergoing
final internal review.
DOE 5400.3 will establish broad standards and requirements designed to
protect the public and environment against undue risk from radiation released
from routine DOE activities and remedial actions. For example, it will
establish the following radiation exposure limits for members of the public:
an effective dose equivalent of less than 100
millirem/year (all exposure pathways considered);14
a dose of less than 5 rem/year to any organ (all
exposure pathways considered);
doses of less than 25 millirem/year to the whole body
and 75 millirem/year to any organ (only airborne
emissions and exposure pathways considered);15
doses of less than 25 millirem/year to the whole body
and 75 millirem/year to any organ (all exposure
pathways
13 Existing DOE requirements for radiation protection are found in, among
other places, Chapter 11 of DOE Order 5480.IB, as amended by a memorandum from
William A. Vaughan, Assistant Secretary of the Office of Environment, Safety,
and Health, to the DOE Program Offices (August 5, 1985). This memorandum
incorporated new radiation standards for protection of the public in the
vicinity of DOE facilities.
14 The effective dose equivalent is a weighted average of committed dose
equivalents for specific organs. It provides a measure of the overall (i.e.,
whole body) carcinogenic and genetic effects resulting from a radionuclide
exposure.
15 Consistent with limits established by EPA into CFR Part 61.
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considered, but only for releases from facilities that
manage and store spent nuclear fuel, high-level, and
transuranic wastes);16
an effective dose of less than 4 millirem/year (only
the drinking water pathway considered);17 and
DOE personnel and contractors shall strive to ensure
that radiation doses to members of the public are as
low as reasonably achievable below the appropriate
limits.
In addition to establishing radiation exposure limits for individual
members of the public, DOE 5400.3 is expected to include derived concentration
guides (DCGs) for discharges of radioactively contaminated liquids to surface
waters, aquifers, soil, and sanitary sewerage systems. Furthermore, the order
may establish criteria for limiting radiation doses to aquatic organisms, as
well as radiological monitoring requirements and requirements for detecting
and assessing unplanned releases of radioactive material and the consequences
of such releases. Also, one chapter of DOE 5400.3 may include detailed
guidelines for residual radioactive material at DOE sites within the Formerly
Utilized Sites Remedial Action Program and Remote Surplus Facilities
Management Program. These guidelines may incorporate most of the same control
and cleanup provisions of 40 CFR Part 192, as discussed in Section 5.1.1.4.
The order will be supported by technical documents providing factors used to
estimate external and internal doses received from exposure to radiation or
radioactive materials,18 as well as expanded requirements and guidance on
effluent and environmental monitoring.
DOE has also published an interpretive rule in 10 CFR Part 962 that
clarifies DOE's obligations under RCRA with regard to radioactive waste
containing byproduct material owned or produced by DOE (52 FR 15937, May 1,
1987). The rule states that all DOE radioactive waste defined as hazardous
under RCRA is subject to regulation under both RCRA and the Atomic Energy Act;
the nonradioactive hazardous component of the waste substance is subject to
regulation under RCRA, and the actual radionuclides dispersed in the waste
substance are subject to regulation under the Atomic Energy Act. When the
application of both regulatory regimes proves conflicting or inconsistent in
specific instances, RCRA yields to the Atomic Energy Act (i.e., the Atomic
Energy Act requirements should take precedence).
16 Consistent with limits established by EPA in 40 CFR Part 191.
17 Consistent with limits established by EPA in 40 CFR Part 141.
18 DOE draft reports: "Internal Dose Conversion Factors for Calculation
of Dose to the Public" and "External Dose-Rate Conversion Factors for
Calculation of Dose to the Public." EPA's ORP is preparing analogous dose
conversion factors to be published in Federal Guidance Report No. 11.
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CHAPTER 6
POTENTIAL ARARs FOR CERCLA ACTIONS AT
MINING, MILLING, OR SMELTING SITES
6.0 INTRODUCTION
In some ways, mining sites are unique with respect to other CERCLA sites
because of the nature and volume of the wastes and the surface area of the
sites. Several laws and statutes, described below, apply specifically to
mining sites, namely the Uranium Mill Tailings Radiation Control Act (UMTRCA) l
and the Surface Mining Control and Reclamation Act (SMCRA). Legislation
described in other chapters may also contain potential ARARs. For example,
Maximum Contaminant Levels promulgated under the Safe Drinking Water Act
(SDWA) will generally be relevant and appropriate when mining wastes have
contaminated ground water that is a current or potential drinking water
supply. Federal Water Quality Criteria developed under the Clean Water Act
(CWA) may be ARARs if mining waste has contaminated a stream, depending on the
designated use of the stream. The policies and considerations used to
determine whether a requirement is applicable to or relevant and appropriate
for a mining site are essentially the same as those used to make that
determination for any CERCLA site. State standards for cleanup of abandoned
coal mines may also be ARARs depending upon the circumstances at a particular
site.
This chapter is organized into two major sections. Section 6.1 discusses
potential ARARs under SMCRA, and because RCRA is an important source of
potential ARARs for CERCLA actions at mining sites, Section 6.2 addresses the
requirements under Subtitles C and D of RCRA as potential ARARs for the
cleanup of mining sites under CERCLA. The process for determining ARARs under
RCRA, however, is somewhat complicated by the fact that certain mining wastes
are excluded from the RCRA definition of hazardous waste.
6 . 1 SURFACE MINING CONTROL AND RECLAMATION ACT
SMCRA, 30 USC §§1201 et sea. , establishes a nationwide program for the
protection of human health and the environment from the adverse effects of
surface coal mining operations, current and past.2 Pursuant to SMCRA, the
Department of the Interior, Office of Surface Mining, has promulgated
standards for surface mining activities (30 CFR Part 816) that may be relevant
and appropriate to mining sites on the NPL.
Requirements under SMCRA may be applicable to CERCLA cleanup of sites
associated with abandoned coal mines and may be relevant and appropriate to
1 Standards developed under UMTRCA for stabilization, disposal, and
control of uranium and thorium mill tailings are discussed in Chapter 5 of
Part II of this guidance manual.
2 Surface effects of underground coal mining are also covered.
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cleanup of other types of mining sites under CERCLA. (See Section 1.2.4.3 of
Chapter 1 of Part I for further guidance on how to determine whether a
requirement is relevant and appropriate). The requirements found in 30 CFR
Part 816 may be relevant and appropriate for CERCLA actions at mining sites
when, for example:
The site contains geologic materials containing
sulfides,3 and there is a release or threat of a
release of acid. Such a release could mobilize a
related release of acid-soluble metals that are
hazardous substances, thus disrupting the hydrologic
balance and adversely affecting aquatic and other
resources. In such situations, 30 CFR Part 816
requirements that boreholes and shafts be sealed to
prevent drainage from entering ground water, and that
the drainage be treated to reduce toxic content, may be
relevant and appropriate. (See 30 CFR sections
816.4 (b), (d), and (f) ) .
The site is subject to erosion (due to steep slopes and
often arid conditions in mining areas) and thus
releases from soils or wastes are contaminated by heavy
metals. In such cases, revegetation requirements (30
CFR section 816.111) may be relevant and appropriate,
for example, to protect a cap at a CERCLA mining site
from erosion and to prevent further releases of arsenic
or heavy metals. Also, see 30 CFR section
816.41(f)(1)(i) for requirements regarding burying
materials that may be detrimental to vegetation.
6.2 RESOURCE CONSERVATION AND RECOVERY ACT
Under RCRA §3001(b), EPA is temporarily prohibited from regulating
"solid waste from the extraction, beneficiation, and processing of ores and
minerals" as hazardous waste, pending study and further regulation by EPA
(this exclusion of wastes is known as the Bevill Amendment). Therefore, unless
EPA has specifically listed a certain mining waste or waste stream in a formal
rulemaking, Subtitle C requirements are not applicable to mining wastes nor to
soil and debris wastes contaminated with mining wastes, since the
contamination does not derive from a RCRA hazardous waste. This is true even
if a waste would otherwise be considered a characteristic hazardous waste.
For many of the wastes that result from the extraction and beneficiation
of ores and minerals, EPA has determined that regulation of these wastes under
3 Sulfide-containing materials are found at coal sites, as well as at many
"hard rock" mining, milling, and smelting sites that are being addressed
pursuant to CERCLA.
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Subtitle C is not warranted at this time.d Therefore, Subtitle C requirements
are not applicable to these wastes. In addition, since EPA has made a formal
decision that regulation of these wastes under Subtitle C is not warranted,
Subtitle C requirements for hazardous waste will generally not be relevant and
appropriate to these wastes. To the extent that the circumstances at the site
differ from general site characteristics that formed the basis of the decision
(see 51 FR 24496), a different approach may be taken, and certain Subtitle C
requirements may be relevant and appropriate.
For wastes that result from the processing of ores and minerals, EPA has
started to relist as hazardous certain processing wastes that were initially
suspended under the Bevill Amendment. On September 13, 1988 (see 53 FR 35412),
the Agency promulgated a final rule to remove the suspensions for the
following six smelting wastes:
K064 Acid Plant Slowdown Slurry/Sludge Resulting
from the Thickening of Slowdown Slurry at Primary
Copper Smelting and Refining Facilities;
K065 Surface Impoundment Solids Contained in and
Dredged from Surface Impoundments at Primary Lead
Smelting Facilities;
K066 Sludge from Treatment of Process Wastewater
and/or Acid Plant Slowdown at Primary Zinc Smelting and
Refining Facilities;
K088 Spent Potliners from Primary Aluminum Reduction
Facilities;
K090 Emission Control Dust or Sludge from
Ferrochromiumsilicon Production Facilities; and
K091 Emission Control Dust or Sludge from
Ferrochromium Production Facilities.
As a result of this rulemaking, these six wastes are now listed as RCRA
hazardous wastes. Therefore, requirements pertaining to these hazardous wastes
are potential ARARs.
On October 20, 1988, EPA proposed to revise the list of processing
wastes excluded under the Bevill Amendment. The proposed rulemaking would have
eliminated from the mining waste exclusion all but 15 specific high-volume
processing wastes, which the agency would define as "special wastes" (53 FR
41288). Based on public comments received on this rulemaking, EPA reproposed
this rulemaking on April 17, 1989 (54 FR 15316) containing revised criteria by
which wastes will be excluded under the Bevill Amendment. The proposal (which
will be finalized in August, 1985) would designate 6 high-processing wastes as
4 "Regulatory Determination for Wastes from the Extraction and
Beneficiation of Ores and Minerals," 51 FR 24496 (July 3, 1986).
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special wastes. Thirty-three other high-volume processing wastes would remain
conditionally exempt from Subtitle C pending further rulemaking to determine
their "special waste" status. That rulemaking will be completed by January,
1990.
Special wastes will be studied and presented in a report to Congress,
and be subject to future regulation pursuant to RCRA §3001. All other mineral
processing wastes will be regulated as hazardous wastes if the wastes exhibit
one or more of the hazardous characteristics; Subtitle C requirements will be
potential ARARs for these wastes. Decisions about whether a Subtitle C
requirement is relevant and appropriate to wastes covered under this
rulemaking, given the site circumstances, must be made on a case-by-case basis
until a formal decision on whether to apply Subtitle C to these wastes is made
(before January 1991).
Mining wastes that are not currently regulated under Subtitle C are
subject to Subtitle D requirements, which primarily provide performance
standards that States use to identify unacceptable solid waste facilities or
management practices. The Agency is developing regulations under Subtitle D
designed specifically for mining wastes that will not be regulated as
hazardous waste, since current Subtitle D regulations may not adequately
address the risks from these wastes. It is anticipated that these Subtitle D
regulations will address facility development, operation, closure, and
postclosure maintenance. When promulgated, the revised Subtitle D regulations
may be ARARs for Superfund actions.
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CHAPTER 7
CERCLA COMPLIANCE WITH STATE REQUIREMENTS
7.0 INTRODUCTION
CERCLA §121 provides that for any hazardous substance, pollutant, or
contaminant that will remain on site, remedial actions undertaken pursuant to
§§104, 106, 120, or 122 must satisfy any applicable or relevant and
appropriate Federal requirement and any applicable or relevant and appropriate
promulgated State standard, requirement, criterion, or limitation under State
environmental or facility siting law that is more stringent than any Federal
requirement if the State requirement is identified in a "timely" manner.1 This
chapter presents guidance on how to address policy and procedural issues in
identifying and complying with State ARARs.
Indian Tribal Governments may adopt requirements and standards into
Tribal law for control of the environmental quality of Tribal lands. The
proposed revisions to the NCP treat Tribal requirements that meet the
eligibility criteria for State ARARs, i.e., they are promulgated (legally
enforceable and of general applicability) and more stringent than Federal
requirements as potential ARARs for on-site remedial actions on Indian lands.
Informal or unofficial standards or requirements that have not been adopted by
resolution, ordinance, or other Tribal administrative procedures are unlikely
to meet the eligibility criteria. Pending final action on the proposed
revisions to the NCP, EPA is following this approach as a matter of policy.
This chapter first contains a description of the statutory criteria for
determining whether a State requirement will be a potential ARAR. These
criteria, which are analyzed in Section 7.1, include requirements that the
State standard be "promulgated" and "more stringent." Sections 7.1.1 and 7.1.2
provide a conceptual framework for analyzing whether a particular State
standard satisfies these criteria.
This chapter also outlines several common examples of State statutes
that may be considered as potential ARARs, describes their basic
characteristics, and provides policy guidance on situations in which they are
likely to be potential ARARs. These State statutes include location standards
and other siting requirements, State limitations on discharges of toxic
pollutants to surface water, and antidegradation requirements for surface
water, which are
1 The proposed NCP states that the definition of "State" shall include
"Indian Tribes," 53 FR 51479, 51477 (December 21, 1988).
2 This policy is in accordance with the objective of EPA's Indian Policy
(November 8, 1984), which is "to give special consideration to Tribal
interests in making Agency policy, and to insure the close involvement of
Tribal Governments in making decisions and managing environmental programs
affecting reservation lands .... The Agency will recognize Tribal Governments
as the primary parties for setting standards, making environmental policy
decisions and managing programs for reservations, consistent with Agency
standards and regulations."
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described in Section 7.2. Policy guidance is provided on particular features
of State location and siting standards, including waivers and override
provisions and bans on facilities in particular locations.
In addition to providing policy guidance on how the criteria for State
ARARs should be analyzed, this chapter also describes the procedures for
States to identify State ARARs. It sets forth the roles of the lead and
support agencies in the process of communicating State ARARs and specifies
points in the remedial process when State ARARs must be identified. The most
important procedural requirements are specified in the Superfund Memorandum of
Agreement (SMOA), and Section 7.3 describes how the SMOA is developed to
enhance the process of identifying and communicating ARARs. Finally, this
chapter contains a description of the basic requirements for timely, specific,
accurate, and comprehensive identification and description of State ARARs.
7.1 CRITERIA FOR DETERMINING IF A REQUIREMENT IS ELIGIBLE TO BE A STATE
A State is responsible for the identification of potential State ARARs
whether acting in the role of the lead or support agency during the remedial
process .3
The first step that is taken by a State in the process of determining
whether requirements are eligible to be State ARARs is to compile the universe
of State environmental or facility siting laws from which potential ARARs can
be identified. Potential ARARs are identified on a site-specific basis during
the critical points in the remedy selection process. CERCLA §121(d) (2) (A)
specifically limits the scope of State ARARs to standards, requirements,
criteria, or limitations under environmental or facility siting laws that are
promulgated and more stringent than Federal requirements. Using the procedures
described in Exhibit 7-1 and the accompanying text, a State must analyze
potential ARARs to determine whether they meet these two criteria.
7.1.1 Identification and Determination of "Promulgated" State
Requirements
The eligibility of State requirements as ARARs is consistent with that
of Federal requirements in that they both must be "promulgated," as opposed to
non-promulgated guidance or advisories. "Promulgated" requirements are laws
imposed by State legislative bodies and regulations developed by State
agencies. The proposed NCP defines "promulgated" State requirements as State
standards that are of general applicability and are legally enforceable.
Legally Enforceable
Legally enforceable requirements are State regulations
or statutes that:
3 In both cases, the identification process includes a Federal review of
and concurrence with the State finding in order for a remedial action to
proceed.
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Contain specific enforcement provisions; or
Are enforceable by means of the general authority in other
laws or in the State constitution.
General Applicability
For a State requirement to be a potential ARAR, it must be of
general applicability. The phrase "of general applicability" means
that the requirement must be applicable to all circumstances
covered by the requirement, not just Superfund sites (e.g., the
provisions of this chapter apply to any person storing,
collecting, transporting, processing, or disposing of solid
waste). An example of a requirement that is not of general
applicability is one that was promulgated for a particular CERCLA
site or for CERCLA sites exclusively, and not for other hazardous
wastes sites (e.g., promulgation of cleanup standards specific to
one or more NPL sites but not other sites with releases of
hazardous substances elsewhere in the State).
In most cases, promulgated requirements will have clear indications of
promulgation. Documentation of promulgation, such as the statute number, date
of enactment, and the effective date of the requirements, is provided when a
State law is adopted and can be obtained readily from the statute itself or
its source, i.e., the enacting legislative body or agency.
Promulgated State laws and regulations can contain provisions that range
from chemical-specific numerical standards, the application of which can be
clearly identified and considered, to narrative criteria, which do not contain
specific requirements. The identification of the requirements through which
narrative criteria are implemented on a site-specific basis may call for a
review of other environmental statutes.
State environmental laws that are typically written with narrative
criteria are statutes that prohibit degradation or limit the discharge of
toxic pollutants.4 The requirements that implement these laws are not
necessarily formulated through promulgation of additional State regulations
specific to the law; rather, they can be provisions contained within the State
water quality standards statute, for example, or in other State statutes
relating to the protection of natural resources. The promulgated requirements
that implement State environmental laws can also range from numerical
standards to non-quantitative narrative criteria, such as toxicity testing
procedures. Following the identification of specific promulgated requirements,
the application of the requirements must be interpreted on a site-specific
basis. State policies or guidance used in implementing or
4 General State environmental laws for consideration as potential ARARs
are discussed further in Section 7.2.
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interpreting narrative criteria or standards, although not ARARs, should be
considered in determining the remedy. For example, if a State Water Quality
Standard prohibits the discharge of "toxic pollutants in toxic amounts," the
remedial decision maker would need to decide what that means in the context of
the site at issue, considering any pertinent State policies or guidance.5
7.1.1.1 Criteria That Are To Be Considered (TBCs)
Promulgated statutes may contain legally enforceable standards that are
applied by State agencies through the issuance of limit-containing permits.
Standards or limits that are not promulgated but are generally included in
permits are not potential ARARs. Although these promulgated statutes are
potential ARARs, any specific standards or limits that are derived from State
regulations are not in themselves considered ARARs. This is true even if
repeated application of the regulation results in the same numerical standard
or limit being applied. However, these standards, as well as State advisories,
guidance, non-binding guidelines, or other standards that are not legally
binding or of general applicability may nevertheless be considered in
fashioning a protective remedy for a site. Consistent with the treatment of
Federal criteria that are to be considered, the scientific basis for State
TBCs should be evaluated.6
7.1.1.2 State Policies
Non-promulgated State policies are not requirements, but are often
developed and documented when State statutes or regulations are interpreted
and implemented by State agencies (e.g., guidance memoranda or documents).
These State policies are to be distinguished from promulgated "criteria" that
are contained in a State statute and implemented via specific requirements
found in the statute or in other promulgated State regulations. Non-
promulgated State policies help to shape the consistent application and
enforcement of requirements and, as such, are classified as TBCs. Also, State
policies may be needed to assist in the clarification of a requirement and may
be used in determining how an ARAR should be applied.
7.1.1.3 Relationship Between Local Requirements and State ARARs
CERCLA §121(d) does not require CERCLA actions to comply with local laws,
i.e., local laws in themselves are not ARARs. However, in some cases,
requirements that are developed by a local or regional body and are adopted
and legally enforceable by the State may be potential State ARARs. These
requirements may include State standards that are set by regional boards as
5 See section 7.2.2 of this guidance manual for further discussion of
narrative criteria for the control of discharges of toxic pollutants.
6 More information on TBCs is provided in Part I of this guidance
manual.
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Exhibit 7-1
Procedures for Determining Eligibility of State ARARs
Identify standards, requirements,
criteria or limitations under State
environmental or facility
siting laws that address
site problems/remedies at
critical points In the RI/FS
process.1 (See detailed diagram
on pg. 1-7.)*
Identify all specific
requirements, standards, criteria
and limitations.
A
Determine if the requirement
Is promulgated, i.e., If It Is
of general applicability and
legally enforceable.
Determine if the requirement
is more stringent (Use framework
in section 7.1.2 for comparing
Federal and State requirements
and criteria for stringency.)
i-
No
Determine if the criteria or
non-promulgated requirement
should be considered
(For TBCs Test, go to
Exhibit 1-7.)*
No
A
No
Requirement/Criterion is not
ARAR or TBC.
Determine whether the requirement is "applicable"
or "relevant and appropriate". (Go to Exhibits
1-5 and 1-6.)*
No
1 The universe of potential State ARARs will
vary considerably in each State. A list form
which site-specific ARARs can be identified
should be developed by each State through
cooperation and coordination of various State
agencies
* References are to Part I of the "CERCLA Compliance With Other
Laws Manual."
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well as local requirements that are part of a legally enforceable State
"plan."7
For example, the California Porter-Cologne Water Quality Act (California
Water Code Sections 13300-13999.16 and Title 23 of the California
Administrative Code) directs nine regional boards to formulate regional water
quality control plans that are designed to ensure protection of beneficial
uses of the State's waters. The State's waters may be used for discharge of
waste only if the discharge meets the regional board's requirements. According
to the Act, which ensures California's eligibility to implement the Federal
NPDES requirements, regional boards must issue the discharge requirements
necessary to implement the water quality control plans. Substantive discharge
requirements of each of California's regional water quality control plans, as
with NPDES discharge requirements in other States, are potential ARARs for
CERCLA discharges to the waters within the respective region.
Some State laws require the adoption of a legally enforceable State "plan"
containing requirements that are generated at the local or regional level.
Hazardous waste management planning is often undertaken in this manner. For
example, a State hazardous waste management plan may be prepared in
conjunction with, and take into account, plans adopted by counties and
regional councils of governments. The comprehensive plan, which is then
adopted and implemented by the State, may contain potential State ARARs for
CERCLA actions.
The Federal Clean Air Act requires each State to adopt and submit to EPA a
plan that provides for implementation, maintenance, and enforcement of primary
and secondary ambient air quality standards. After consultation with
appropriate State and local authorities, EPA designates areas within each
State (called "air quality control regions") that are deemed necessary or
appropriate for the attainment and maintenance of these ambient air quality
standards. The State Implementation Plan (SIP) must establish emission limits
and other measures necessary to assure compliance with the ambient standards
within each air quality control region.8 In some States, the regional bodies
establish and enforce emission limits; in other States, regional bodies submit
standards that are then implemented and enforced by the State. In both cases,
the requirements of a regional air quality control body may be potential State
ARARs for CERCLA on-site actions taken within the respective region.
Local air toxics programs, although not eligible to be ARARs, deserve
particular attention as TBCs. These programs are a key part of EPA's national
air toxics strategy.
7 Local zoning requirements may be TBCs, and should be complied with
when necessary to protect human health and the environment.
8 Standards which are incorporated into a Federally-approved SIP are
also Federally enforceable.
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7.1.2 General Procedures for Determining if a Requirement is
"More Stringent"
This section covers how to determine when a State standard is more
stringent than a Federal requirement. It presents a conceptual framework for
comparing State and Federal requirements and criteria for determining whether
a proposed State ARAR is more stringent, should this comparison become
necessary.
The comparison of State and Federal requirements on the basis of stringency
can be facilitated by first determining the authority under which the
environmental program and its requirements were promulgated. In the case of
State environmental programs that have been authorized by EPA to be fully
administered and enforced in lieu of a Federal program, the stringency of the
State requirements has already been established, i.e., the State program must
be at least as stringent such that it provides for compliance with the
requirements of the Federal Act. Establishing stringency can require more
attention, however, when the State program has not been Federally authorized.
In such cases, a comparison of requirements may call for an evaluation of the
more stringent of two requirements. Guidelines for making this determination
are presented in this section.
7.1.2.1 State Programs That Have Been Federally Authorized
Appendix B shows the relationship between Federal and State programs, in
terms of authorization, under the major environmental statutes that are
contained in the universe of potential ARARs (i.e., Part I and Part II of this
guidance manual). If authorization for operating a Federal program has been
acquired by a State, it can be seen that the requirements of the State program
are at least as stringent as or more stringent than those requirements of the
parallel Federal law or regulation. Therefore, a side-by-side comparison of
Federal and State provisions is not necessary. When identifying potential
ARARs under a State program which has gained Federal authorization, a State
should select the authorized provisions of the State statute or regulation
that address the site problems and remedies. For the purposes of
identification and communication of State ARARs, the authorized State
requirement is to be documented as the potential ARAR (as it is regarded as
the requirement that is in effect).
Federal environmental statutes may either contain the requirement or allow
for the authorization of State programs to be carried out in lieu of direct
administration in the State by EPA. The statute may allow all regulations to
be formulated and adopted by the State, such as in RCRA requirements, or it
may retain several rulemaking provisions under Federal jurisdiction, such as
in the Clean Water Act. In either case, a State requirement that is Federally
authorized must generally be "equivalent" to its Federal counterpart,
equivalent meaning that the requirement is identical (enacted verbatim) or
achieves the same result. In some instances, an identical State requirement is
mandated for authorization to be gained. In addition, Federal statutes may
allow States to promulgate "more stringent" requirements than those
requirements provided by Federal law. These "more stringent" requirements may
be in the form of effluent standards that lower a
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concentration or volume of a pollutant discharge, for example, or they may be
in the form of an additional or exclusive State requirement for which no
comparable Federal requirement exists.
7.1.2.2 State Programs That Have Not Been Federally Authorized
State Programs With No Federal Counterpart: A State may find that it
needs to promulgate environmental regulations that involve aspects of
pollution control addressing specific conditions within that State.
Pennsylvania, for example, has promulgated strict wasteload management
regulations that control the loading on public sewerage systems because
of the deteriorated conditions of the aged conveyance and treatment
systems in the State. A Federal counterpart to a State regulation such
as this one may not exist, and Federal authorization will not be a
factor that can be considered in determining stringency. However, if the
provisions of a non-authorized State environmental regulation are
pertinent to the conditions at a CERCLA site, the State requirements are
potential ARARs; they are more stringent than Federal law in the sense
that they add to Federal law requirements that are specific to the
environmental conditions in the State.9
State Programs That Have a Federal Counterpart: A State may have
promulgated requirements that parallel those associated with a Federal
environmental program, but the State may not have sought or gained
authorization for the program for various reasons. In the case of RCRA,
a State may be denied authorization because of a lack of equivalency or
consistency of all State requirements to such an extensive body of
Federal requirements. Also, a State may only have partial authorization
to implement select portions of RCRA. In the case of CERCLA, the Federal
statute does not provide States with the opportunity to gain
authorization for the administration of Superfund law. In neither case,
however, does Federal law preclude a State from promulgating,
administering, and enforcing requirements independently that parallel
requirements of Federal law. For example, States may develop wetlands
legislation, regulations or requirements that vary from Federal wetlands
requirements. If these laws are deemed potential ARARs, a comparison of
the requirements is necessary to assure that "more stringent" State
requirements are identified.
The State law may contain requirements that are exclusive (i.e.,
requirements that have no Federal counterpart) and are easily distinguished as
9 Note that for a State ban on land disposal of hazardous waste to be a
potential ARAR, it must also meet the criteria listed in CERCLA §121(D)(2)(C)
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"new" requirements. These "new" requirements are more stringent because they
add to Federal law requirements that are specific to the State. However, if
"parallel" or "similar" provisions exist, a determination of the "more
stringent" of the two must be made through a careful comparison.
A State requirement that imposes a numerical standard is not difficult to
compare to a Federal counterpart. For the State requirement to be more
stringent, it may, for example, increase the number of regulated facilities or
impose a more stringent pollutant discharge limitation. Sometimes State and
Federal requirements may differ because of waiver or exception provisions. In
such cases, the State requirement is more stringent if the Federal requirement
permits consideration of waivers or exceptions, such as waivers for economic
hardship, cost effectiveness, or funding limitations, but the State
requirement does not.
State requirements that are clearly less restrictive than Federal
counterparts are not ARARs. State requirements that are equivalent to but not
more stringent than Federal requirements are those that are: (1) identical to
Federal requirements, i.e., enacted verbatim; or (2) not identical to Federal
requirements but are substantively equivalent, i.e., that use the same or a
different approach to achieve an identical result. In such situations, by
complying with the Federal ARAR, the State requirement will have been
adequately considered.
7.1.2.3 Requirements That Are Not Directly Comparable
Federal and State requirements may call for vastly different approaches to
regulating the same contaminant, making a determination of the more stringent
requirement somewhat difficult. For example, 40 CFR section 192.32(b) requires
that releases of radon-222 from uranium byproduct materials to the atmosphere
be limited so as not to exceed an average release rate of 20 picocuries per
square meter per second (pCi/m2s) .
A similar State requirement may be as follows:
Radiation Control Regulations, Title 17, Chapter 41, Section 17.45.
Wastes, tailings, or stockpiled ore from active or inactive mining,
milling, or manufacturing operations shall be kept in such a manner so
as not to release radon-222 to the air in excess of 3xlO~9 uCi/ml.
These standards are difficult to compare because of the use of a rate in the
Federal requirement, as opposed to the use of a concentration level in the
State requirement.
If the actions required by each of the two statutes result in a predictable
and measurable level of cleanup, the determination of the more stringent
requirement is clear (e.g., determine which requirement leaves less
ground-water contamination at a CERCLA site or which one requires a greatek
percentage removal of a contaminant). However, the determination of the more
stringent of two requirements that mandate different design or performance
standards may become more difficult when the results of the actions are not
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clearly predictable because they are measured via monitoring procedures after
the remedial activity (e.g., a landfill liner that is required to be
"impermeable" versus a liner that shall be of a specified thickness and
composed of a certain material). The demonstration of a more stringent State
requirement in this case requires evidence in the form of performance data,
which may be unavailable.
The lead and support agencies should communicate closely to reach an
agreement on the most stringent, site-specific requirement to follow. The
decision is to be based on best engineering judgment and not on completion of
extensive testing or exhaustive research. Should a dispute arise, dispute
resolution processes that have been established between the State and EPA are
to be followed. The communication process and dispute resolution procedures
are discussed in Section 7.3 of this chapter.
7.2 AN EXAMINATION OF SEVERAL TYPES OF STATE LAWS
7.2.1 State Siting Requirements
State siting requirements are a broad class of State requirements dealing
with restrictions on the location of new, existing, and expanding hazardous
waste treatment, storage, and disposal (TSD) facilities. Considerable
independent development of State laws governing siting of hazardous waste
facilities has occurred. In States that are authorized to administer and
enforce the provisions of RCRA, siting requirements are at least as stringent
as the siting location standards found in the Federal requirements of RCRA
(which are briefly described in Section 7.2.1.1). However, because of the
current lack of extensive Federal siting requirements, many States have either
added technical requirements to land disposal options or added types of
locations that must be specially considered. A 1987 survey of State
requirements has shown that numerous State siting programs exist, and that the
programs lack consistency in scope and vary in stringency.10 A thorough review
and determination of the eligibility of State siting requirements is,
therefore, required during the process of State ARARs identification.
In this section, State siting criteria are reviewed, based on the
eligibility criteria -- State ARARs must be "promulgated" and "more
stringent." First, a brief overview of Federal siting criteria is presented as
a reference for comparing State requirements on the basis of stringency.
Common State location standards are reviewed. Finally, several issues
regarding State siting ARARs are examined. For example, the application of
siting requirements may depend on whether the TSDF is "existing" or "new." A
discussion of this issue is presented in Section 7.2.1.3.
10 Source: TBS (Temple, Barker, and Sloane, Inc.). Review of State
Hazardous Waste Facility Siting Criteria, Revised Draft Final Report. U.S.
EPA, Washington, B.C., 1987a.
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7.2.1.1 Overview of Existing Federal Siting Requirements and Criteria11
The current location standards that restrict the siting of new hazardous
waste facilities under RCRA are located in 40 CFR section 264.18. These
standards restrict the location of or affect the design and operation of
hazardous waste TSD facilities in three environmental settings: (1) fault
zones; (2) 100-year floodplains; and (3) salt dome formations, salt bed
formations, underground mines, and caves. In addition, two permit writers'
guidance manuals, "Criteria for Location Acceptability and Existing Applicable
Regulations -- Phase I" and the "Vulnerable Hydrogeology Guidance Document,"
contain criteria or other information useful in designing a remedy and that
could be TBCs.
EPA, as authorized by §3004(o)(7) of the Solid Waste Disposal Act as
amended by the Hazardous and Solid Waste Amendments (HSWA) of 1984, is
currently developing specific "criteria for the acceptable location of new and
existing TSD facilities as necessary to protect human health and the
environment." EPA intends to cover several locations governed by these
criteria, including wetlands, and to consider the relationship of a facility's
location to ground and surface waters. The final rule may include bans,
technical demonstrations, specific unit closure requirements with extended
care, additional design and operating requirements, or a combination of these
responses. EPA expects that the final rule will replace the existing location
standards contained in 40 CFR section 264.18 and create a new Subpart T to
Part 264. When the rule becomes final, States that elect to receive
authorization to implement HSWA requirements must promulgate location
standards that are at least as stringent. HSWA location standards will be a
new baseline against which location requirements that are potential ARARs are
measured for stringency in non-authorized States. Also, EPA is developing
policies on how the cleanup of CERCLA sites will be affected by the new
standards. These policies will impact development of future State location
standards in authorized States.
7.2.1.2 Eligibility of Siting Requirements as State ARARs
In developing the location criteria required by HSWA, EPA conducted a study
of State location standards.12 This study provided data for the analysis of
the regulatory options EPA has developed for location standards. A summary of
the information that was gathered is presented in this Section. The objective
of presenting this information is to alert personnel responsible for the
identification or review of State ARARs to State siting criteria that
11 Source for material in this section: NUS Corporation, Summary
Background Information Document for the Development of Subtitle C Location
Standards under Section 3004(o)(7) of RCRA. U.S. EPA, Washington, D.C., 1988a.
12 Source: TBS (Temple, Barker, and Sloane, Inc.). Review of State
Hazardous Waste Facility Siting Criteria, Revised Draft Final Report. U.S.
EPA, Washington, D.C., 1987a.
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may qualify as ARARs and to issues pertinent to the application of those
criteria.
Currently, 33 States have imposed restrictions on the location of hazardous
waste facilities that are more extensive than the existing Federal standards
contained in RCRA (see Exhibit 7-2). The remaining 17 States have location
controls (either in the form of regulations or guidance) that are equivalent
to, but not more stringent than, RCRA standards.13
Promulgated Siting Requirements
The eligibility of location standards as potential State ARARs also depends
on whether the requirements are promulgated, i.e., legally enforceable and of
general applicability, as discussed in Section 7.1. Exhibit 7-3, which lists
the 33 States that have met the "more stringent" criterion of State ARARs,
illustrates whether the States also have requirements contained in legally
enforceable statutes or regulations. Thirty-two of these States possess siting
criteria that qualify as potential ARARs based on this premise.
The requirement must also be of general applicability, i.e., it was not
promulgated specifically for application to CERCLA remedial actions. As can be
seen in Exhibits 7-5 through 7-7, State siting requirements may address many
criteria specific to the site's location and its topographic, hydrologic, and
geologic characteristics. In order to be eligible to be State ARARs,
promulgated siting criteria must generally be applied throughout the State (or
the area described by the statute) in determining the suitability of any site
for waste disposal. In the exhibits, requirements that qualify as potential
ARARs are either designated with an "R" (regulatory or statutory requirement)
or a "C" (regulatory consideration) in the 33 States that have more stringent
requirements. A regulatory consideration indicates that there is not a
specific standard, but the State law contains a criterion that must be
evaluated or assessed.
More Stringent Siting Requirements
The States that use only siting board review procedures (with or without
specific standards) are included in the group of 17 States that are not
considered more stringent (as shown in Exhibit 7-4). It should be noted that
undergoing review board procedures is not an ARAR. However, any substantive
criteria established by a State review board, if legally binding on the review
board's operations, may be a potential ARAR.
In addition to review boards, many States have more than one agency
involved in the planning, siting, and regulation of hazardous waste
facilities. Other agencies may be required to consider such aspects as the
adverse impacts of the scenic, historic, cultural, or recreational values of
13 If the location standards for these States are part of an authorized
RCRA program, the State requirements are to be identified as the ARARs for the
site (see Section 7.1.2) .
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EXHIBIT 7-2
METHOD OF IMPLEMENTATION OF STATE SITING CRITERIA
Alaska3
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Idaho3
Illinois
Iowa
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Nevada3
New Hampshire
New Jersey
New York
North Carolina
North Dakota
Oklahoma
Oregon
Pennsylvania
Rhode Island
Texas
Virginia
Washington
Wisconsin
West Virginia
Wyoming
State Statutes
or Regulations
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Guideline or Site
Selection Principles
X
X
X
3 Regulations in these three States are proposed, rather than final.
Source: TBS (Temple, Barker, and Sloane, Inc.) Review of State Hazardous Waste
Facility Criteria, Revised Draft Final Report. U.S. EPA, Washington, D.C.,
1987a.
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the site. When identifying ARARs in States with such agencies, it is important
to distinguish promulgated substantive criteria and standards that have
regulatory or statutory authority in that State from site selection principles
or guidelines that may be TBCs.
7.2.1.3 Summary of State Siting Requirements
This Section discusses several important aspects of State siting
requirements as potential ARARs and the importance of identifying the proper
State siting requirements in addressing CERCLA actions.
Common Location Criteria
Exhibit 7-8 highlights the main categories of siting criteria with which
the greatest number of States is concerned. The protection of some of these
areas may be under State legislation other than RCRA-related laws, such as
location-specific requirements of other Federal programs that are authorized
to States (shown in Appendix B).
State laws dealing with environmentally sensitive areas may range from
specific quantitative requirements, such as setback distances expressed in
miles or feet from the area, to general regulatory statements prohibiting
facility location in areas where human health or the environment will be
affected. States also approach the issue of protecting ground and surface
water through a range of criteria, including general consideration of
proximity to ground and surface water and prohibitions of facilities in
certain locations, such as over recharge zones or aquifers; quantitative
setback distances from water supplies or other water bodies; quantitative
thickness or hydraulic conductivity in soil barriers; and designation of
acceptable soil or rock type for facility siting. Many State laws and
regulations contain highly specific numerical requirements in these areas;
others, such as Colorado, only require "that there be some distance to ensure
that hazardous materials will have no impact on the bodies of water." If these
types of requirements are promulgated, both are potential ARARs.
Buffer zones can also vary, ranging from specific setback distances from
residences, churches, schools, or hospitals to general statements precluding
"interference" with "population areas" (neither term being defined).
Requirements also may differ between land-based and non-land-based (e.g.,
incinerators) requirements. Consideration of air quality impacts may be
triggered in either case.
A requirement in four States (California, Missouri, Rhode Island, and North
Carolina) is one in which siting depends on waste type. The State of Missouri
limits wastes according to the corresponding vapor pressure, in order to
decrease volatile releases. In the other three States, location restrictions
differ according to highly specific classification systems for wastes. These
classes define the wastes that are restricted for disposal in certain
locations by the type or degree of hazard, ranging from waste that is "highly
restrictive" (Rhode Island) to waste "containing pollutants that could be
released above certain concentrations and cause degradation of waters"
(California) to waste that is "nonhazardous" (North Carolina). All
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definitions require careful examination, as they may or may not be identical
to RCRA definitions of hazardous waste.
Applicability or relevance and appropriateness of requirements to land-
based and non-land-based facilities may also vary within each State. The trend
seen in the TBS survey is that non-land-based facilities are being addressed
more frequently, with restrictive criteria being applied according to the
location of the site. Determination of the proper classification of
requirements necessitates a careful examination of the definition of the
regulated facility contained in the promulgated regulation or law.
New and Existing Facilities
With respect to CERCLA remedial actions, State location standards might be
identified as potential ARARs when:
An existing hazardous waste site is present in a restricted location
and a corresponding action is called for (be it immediate removal,
remediation, design and operating demonstration, or modified care);
or
A new hazardous waste unit is created in a restricted location
through treatment or consolidation and placement; or
A non-land-based unit is brought on site.
Significant differences may exist between State location standards that
cover new units and those standards that cover existing units, and the State's
application of the appropriate category of regulations to a Superfund site is
subject to the State's statutory definition of each. Because Superfund sites
generally represent pre-existing (and unplanned) situations, the limitations
for existing facilities may not apply to Superfund sites. New remedial
activities on site, such as the placement of "old" treated waste in a "new"
unit or the use of a mobile incinerator or air stripping, could be subject to
the limitations for new facilities or could be limited by requirements for
existing facilities. Again, determination of the proper set of standards based
on the jurisdictional prerequisites is a critical part of the process of
identifying potential State ARARs for siting.
Exhibit 7-3 shows whether each State applies siting criteria to new,
expanding, and existing facilities. States have shown an increasing concern
with existing and expanding facilities because of facility failures that have
needed to be addressed.
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EXHIBIT 7-3
APPLICABILITY OF STATE SITING CRITERIA
New New and New, Expanding, and
Facilities Only Expanding Facilities Existing Facilities
Alaska3 X
Arizona X X
Arkansas X
California X
Colorado X
Connecticut X
Delaware X
Florida X
Idaho3 X
Illinois X
Iowa X
Kentucky X
Louisiana X
Maine X
Maryland X X
Massachusetts X X
Michigan X
Minnesota X
Mississippi X
Missouri X
Nevada3 X
New Hampshire X
New Jersey X
New York X
North Carolina X X
North Dakota X
Oklahoma X
Oregon X
Pennsylvania X
Rhode Island X
Texas X X
Virginia X
Washington X
Wisconsin X
West Virginia X
Wyoming X
a Regulations in these three States are proposed, rather than final.
NOTE: A State-specific interpretation of the definitions of "new" and
"existing" facilities in relation to a given CERCLA action is required for
determination of the set of requirements that may be potential ARARs.
SOURCE: TBS (Temple, Barker, and Sloane, Inc.) Review of State Hazardous
Waste Facility Criteria, Revised Draft Final Report. U.S. EPA, Washington,
D.C., 1987a.
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Exhibit 7-4
State Location Controls
NGfifH 6AKOTA4 MINNESOTA
Source: TBS (Temple, Barker, and Sloane, Inc.) Review of State Hazardous
Waste Facility Criteria, Revised Draft Final Report. U.S. EPA,
Washinntnn DT 1OP71
State location controls more
extensive than RCRA (33 states)
State controls similar to RCRA;
no additional location controls (17 states)
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EXHIBIT 7-5
AREAS IN WHICH THE LOCATION OF HAZARDOUS WASTE TSD FACILITIES
IS PROHIBITED OR RESTRICTED BY VARIOUS STATES
Endangered Recharge Mining Dam
Parks, Species Zones, Historical Subsidence Coastal Karst Hazard Agricultural
Wetlands etc. Habitat Aquifers Areas Areas Areas Watersheds Areas Areas Areas
Alaska3
Arizona
Arkansas
Call f ornia
Colorado
Connecticut
Delaware
Florida
Idaho"
Illinois
Iowa
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Nevada3
New Hampshire
New Jersey
New York
North Carolina
North Dakota
Oklahoma
Oregon
Pennsylvania
Rhode Island
Texas
R R R R
G G G R,G
R G G R G R
R
R
G G G G G G
C C C
R
R
R R R R R R
R
R R R R R
R, G G R R,G G G G G G
R R R R R
R R R
R R
R R R
R R R
R R R
RRR RRRR R
C C C C
GGGRGR RR
R
R R R R R
RRRCR RR R
RRR R
RGGRGGG G
a Regulations in these three States are proposed, rather than final.
SOURCE: TBS (Temple, Barker, and Sloane, Inc.) Review of State Hazardous Waste Facility Criteria. Revised Draft Final Report. U.S. EPA, Washington, D.C.,
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EXHIBIT 7-5 (continued)
AREAS IN WHICH THE LOCATION OF HAZARDOUS WASTE TSD FACILITIES
IS PROHIBITED OR RESTRICTED BY VARIOUS STATES
Wetlands
Endangered Recharge
Species Zones,
Habitat Aqui fers
Dam
Karst Hazard Agricultural
Watersheds Areas Areas Areas
Virginia
Washington
West Virginia
Wisconsin
Wyoming
R R R R R R R
RRRR RRR R
R R R R R
R R
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EXHIBIT 7-6
SITE HYDROGEOLOGIC AND GEOLOGIC CRITERIA FOR THE LOCATION OF HAZARDOUS WASTE TSD FACILITIES
Depth to
Water
Table
Depth
to
Aqui fer
Surface,
Aqui fer
Water
Quality
Hydraulic
Conductivity
Thickness
of Soil
Hydraulic
Gradient
Time of
Travel
Ground
Water Flow
Direction
Alaska3
Arizona
Arkansas
Callfornia
Colorado
Connecticut
Delaware
Florida
Idaho3
Illinois
Iowa
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Nevada3
New Hampshire
New Jersey
New York
North Carolina
North Dakota
Oklahoma
Oregon
Pennsylvania
Rhode Island
a Regulations in these three States are proposed, rather than final.
SOURCE: TBS (Temple, Barker, and Sloane, Inc.) Review of State Hazardous Waste Facility Criteria, Revised Draft Final Report. U.S. EPA, Washington, D.C.,
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EXHIBIT 7-6 (continued)
SITE HYDROGEOLOGIC AND GEOLOGIC CRITERIA FOR THE LOCATION OF HAZARDOUS WASTE TSD FACILITIES
Depth to
Water
Table
Depth
to
Aqui fer
Surface,
Aqui fer
Water
Quality
Hydraulic
Conductivity
Thickness
of Soil
Hydraulic
Gradient
Time of
Travel
Ground
Water Flow
Direction
Soil/
Rock Type Slope
Texas
Virginia
Washington
West Virginia
Wisconsin
Wyoming
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EXHIBIT 7-7
STATE SETBACK CRITERIA FOR THE LOCATION OF HAZARDOUS WASTE TSD FACILITIES
Alaska"
Arizona
Arkansas
Call f ornia
Colorado
Connecticut
Delaware
Florida
Idaho"
Illinois
Iowa
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Nevada"
New Hampshire
New Jersey
New York
North Carolina
North Dakota
Oklahoma
Oregon
Pennsylvania
Rhode Island
Texas
Property
Lines
R
G
R
R
C
R
R
R
R
R
R
R
R
R
R
G
" Regulations in these three State
SOURCE: TBS
(Temple, Barker, and S
Recharge
Supply Surface Zones,
Wells Water Aquifers
R R
C G
G G
R
G G
C
R R
R
R
G
R R
R
R
R R
R R R
R
C C C
R R
R
R R
R R
G
s are proposed, rather than final .
;ioane. Inc.) Review of State Hazardous
Faults/
Roads, Residences, Seismic Minimum Nuclear
etc. etc. Airports Areas Site Area Facilities
R
C C
R R G
R
R
G G
R R R
R R
R
G R G
C
R
R
R R
R
R R
C C C
R R G
R
R
R R
R R R
R
Waste Facility Criteria, Revised Draft Final Report. U.S. EPA, Washington, D.C.,
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EXHIBIT 7-7 (continued)
STATE SETBACK CRITERIA FOR THE LOCATION OF HAZARDOUS WASTE TSD FACILITIES
Virginia
Washington
West Virginia
Wisconsin
Wyoming
Property Supply
Lines Wells
R R
R R
R
Recharge Faults/
Surface Zones, Roads , Residences, Seismic Minimum Nuclear
Water Aqui fers etc. etc. Airports Areas Site Area Facilities
R R C R
R R
R R R
R
7 23
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EXHIBIT 7-8
COMMON STATE SITING CRITERIA
Protecting Environmentally Sensitive Areas
Criterion
Wetlands
Endangered Species Habitats, Game-
lands, and Fish Hatcheries
Parks, Preserves, and Recreational
Areas
Underground Mining/Subsidence Areas
Protecting Ground Water and Surface Water
Distance to Supply Wells and
Water Supplies
Distance to Surface Water
Recharge Zones and Aguifers
Depth to Water Table or Aguifer
Hydraulic Conductivity and/or
Thickness of Soil
Soil of Rock Type
Karst Areas
Ensuring Adequate Buffer Zones
Distance to Property Lines
Distance to Residences
Number of States8
23
17
16
13
20
20
18
17
15
12
12
18
17
a Includes proposed criteria.
SOURCE: TBS (Temple, Barker, and Sloane, Inc.) Review of State
Hazardous Waste Facility Criteria, Revised Draft Final Report. U.S. EPA,
Washington, D.C., 1987a.
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Waivers and Override Procedures
Many State regulations have waivers to the siting requirements for
"temporary" or "emergency" situations.14 These waivers are carefully defined
in terms of: (1) duration; (2) circumstances that justify their use (for
example, a limit on the amount of money that can be spent to construct
temporary facilities); (3) necessity of public involvement; and (4) whether
the permit may be renewed.
Some limits on the use of waivers are designed to assure that the
waivers are temporary. For example, Florida grants a permit for a temporary
waste landfill in an emergency for no more than 6 months; Montana grants a
variance, but there must be a public hearing, and the variance only lasts one
year (although it can be renewed). Remedial actions at Superfund sites may
qualify for waivers, depending upon their design and the particular
requirements in that State.
Bans
CERCLA §121(d)(2)(C)(ii) provides that:
" . . State standard, requirement, criteria, or
limitation (including any State siting standard or
requirement) which could effectively result in the
State-wide prohibition of land disposal of hazardous
substances, pollutants, or contaminants shall not
apply."
The application of this prohibition is limited, however, by criteria in
§121(d)(2)(C)(iii) and (iv). Section (iii) states that:
"Any State standard, requirement, criteria, or
limitation referred to in clause (ii) shall apply
where each of the following conditions is met: (I) The
State standard, requirement, criteria or limitation is
of general applicability and was adopted by formal
means. (II) The State standard, requirement, criteria
or limitation was adopted on the basis of hydrologic,
geologic, or other relevant considerations and was not
adopted for the purpose of precluding on-site remedial
actions or other land disposal for reasons unrelated
to protection of human health and the environment.
(Ill) The State arranges for, and assures payment of
the incremental costs of utilizing a facility for
disposition of the hazardous substances, pollutants,
or contaminants concerned."
Section (iv) covers the situation in which one State initiated a lawsuit against the
Agency prior to May 1, 1986 (Picillo site, Rhode Island). It
14 Note that waivers in State regulations are to be distinguished from
waivers provided by CERCLA §121(d)(4) (e.g., for inconsistent application of a
State requirement), which may be exercised by EPA, if warranted.
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provides that the remedial action will conform to the State standard and that the
State shall assure the availability of an off-site facility.
One example of a State law that may meet the ban criteria is Florida's
prohibition on new landfills. The Florida Department of Environmental Regulation
enacted a prohibition on new land disposal facilities because soil and ground-water
conditions throughout the State precluded the identification of appropriate sites.
According to the Florida Resource Recovery and Management Act, §403.7222(2):
"The Legislature declares that, due to the
permeability of the soil and high water table in
Florida, future hazardous waste landfills shall be
prohibited. Therefore, the Department of Environmental
Regulations shall not issue a permit pursuant to
§403.722 for a newly constructed waste landfill."
(The section allows permitting of temporary landfills in response to a hazardous
waste management emergency for a period of up to 6 months.)
The Florida prohibition may meet the criteria in CERCLA because it is
authorized under the RCRA program; the RCRA program does not allow authorization of
a State program containing a prohibition on TSD facilities "which has no basis in
human health or environmental protection" (40 CFR 271.4(b)). Also, the State is in
the process of arranging for utilization of a disposal facility that will meet its
needs.
Note that the Florida prohibition applies only to new facilities. The State
recognizes that there are existing waste piles and surface impoundments that may be
unable to achieve clean closure and will have to close as landfills.15 Therefore,
the provision would allow closure of a landfill with waste left in place.
Effective January 1, 1991, land disposal of hazardous waste will be prohibited
in Louisiana (a RCRA-authorized State), according to Part VIII of the Louisiana
Hazardous Waste Control Law, 1141.IE. A few waiver provisions will be included, but
their applicability to CERCLA sites is presently unknown.
7.2.2 Discharge of Toxic Pollutants to Surface Waters
Both on-site and off-site CERCLA remedial actions may involve discharges of
wastewaters to surface waters. The control of discharges of pollutants, including
toxics, to waters of the United States is required by the CWA.16 The 1987 CWA
amendments require States to: (1) identify water bodies where the discharge or
presence of toxic pollutants listed pursuant to CWA §307(a) could reasonably be
expected to interfere with the attainment of designated
15 See Chapter 2 of Part I for definition of terms under RCRA.
16 See Chapter 3 of Part I for further discussion of ARARs under the CWA.
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uses; and (2) adopt numeric criteria for such toxic pollutants applicable to the
water body that are sufficient to protect the designated use (CWA §303(c)(2)(B)).
The substantive requirements of the State's toxic pollutant control program may be
ARARs for CERCLA discharges.
States may regulate toxic pollutants with numerical criteria, narrative
criteria, or a combination of the two. Limitations on discharges to water of toxic
pollutants are often expressed in narrative (non-quantitative) terms.
Pollutants that lend themselves to a chemical-specific analytical approach can
be measured on an individual basis and their toxic properties evaluated. For these
pollutants, States may have developed numerical criteria. However, the development
of quantitative criteria for the entire possible range of toxic pollutants beyond
those listed pursuant to CWA §307(a) would require resources considerably beyond
current capabilities .
In addition to the resource constraints, not all toxic substances can be
analyzed according to a chemical-specific analytical approach. For these reasons,
the regulation of toxic effluents often relies on biological monitoring methods in
which the harmful toxic effects of the entire effluent are examined. Such an
approach, called a general toxicity or a whole effluent approach, is usually applied
when control of a combination of pollutants is desired, when instream conditions are
complex, or when the State has not adopted numeric criteria for potential
pollutants.17 These requirements will be expressed in terms of specific toxicity
testing procedures or whole effluent toxicity limits. Although these requirements
are non-numerical, the substantive aspects of the requirements, if promulgated, are
potential ARARs for CERCLA discharges.
Even when State standards rely on narrative criteria, such as "no toxics in
toxic amounts," the State is required by 40 CFR section 131.11(a)(2) to support the
narrative criteria with specific methods for identifying, analyzing, and limiting
point-source discharges of toxic pollutants. These methods, if promulgated, are then
incorporated into the State water quality standards. According to the EPA Water
Quality Standards Handbook, support for narrative criteria includes the
specification of such factors as: (1) toxicity bioassay test; (2) number and type of
indicator organisms; (3) application factors; (4) water body design conditions; and
(5) instream biological sampling procedures.18 Any pertinent State policies or
guidance
See Chapter 3 of Part I for more information on the regulation of toxic
effluents.
1 &
The Water Quality Standards Handbook cites the Pennsylvania Water Quality
Standards as illustrating the standard-setting process. In Pennsylvania, there are
certain parameters for which criteria have been established. However, the
Pennsylvania regulations also apply to substances for which specific criteria have
not been established ("... the general criterion that these substances shall not be
inimical or injurious to the designated water use applies"). The Pennsylvania
standards define technical procedures to be used to establish a "safe concentration
value."
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used to interpret the narrative criteria, while not ARARs, should be considered in
determining the remedy.
Toxics Discharge Prohibitions
A number of States have considered administering general prohibitions on the
discharge of toxic pollutants that are known carcinogens or are known to exhibit
other qualities of toxicity. Limitations on the amount of the discharge vary on a
State-by-State basis in the States' proposals. In addition, the definition of a
facility that is regulated by the prohibition may vary in the States' proposals.
These requirements, if promulgated, may be applicable or relevant and appropriate to
CERCLA on-site discharges. It is important to note that it is necessary to examine
the specific jurisdictional prerequisites of the law when identifying it as a
potential ARAR.
In one State, California, a toxics discharge prohibition has been enacted into
State law. Other States, including Oregon, Louisiana, New York, Massachusetts,
Missouri, Hawaii, and Tennessee, have been considering proposals based on
California's.
If any of the proposed legislation in the States listed above becomes
promulgated in State statutes or regulations, careful attention will need to be
given to the language that defines the group of regulated facilities. With respect
to CERCLA actions, Regional staff may find it necessary to request a legal
interpretation of a definition from State officials.
7.2.3 Antidegradation Requirements for Surface Waters
As a condition for approval of State water quality standards, EPA requires all
States to adopt statutes or regulations that establish a policy for controlling the
degradation of high quality waters (waters for which existing quality is higher than
"fishable/swimmable"). In addition, States may promulgate other antidegradation
requirements for surface waters which differ from those adopted pursuant to the CWA.
If a CERCLA site cleanup involves a point-source discharge of treated effluent to
high quality surface waters, a State's antidegradation statute may be an ARAR for
the new release. If protective State standards have been promulgated under an
antidegradation statute, proposed CERCLA discharges to high quality receiving waters
could be prohibited or limited.
Antidegradation statutes or regulations are typically expressed in narrative
and non-quantitative terms. However, pursuant to 40 CFR section 131.12, the States
must also identify the methods for implementing the antidegradation requirement,
i.e., the State should identify the requirements or set of requirements through
which the antidegradation goals are implemented on a site-specific basis. The
requirement is typically referred to as an "antidegradation requirement" (that is a
requirement against degradation), but is sometimes called a "nondegradation
requirement." The requirement may be located in any of the States' water quality
standards that control point source discharges.
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In general, antidegradation standards for surface waters differ from State to
State, but those which have been adopted pursuant to the CWA must all include the
following four components:
1. Requirements for maintenance of existing instream
uses;
2. Requirements for maintenance of high quality
waters, unless the State determines that
degradation is necessary to accommodate important
social and economic development;
3. Requirements for maintenance of Outstanding
National Resource Waters (ONRW); and
4. Requirements for achievement of the highest
statutory and regulatory controls on point
sources of pollution before allowing degradation
of high quality waters.
Although the goal of EPA's antidegradation policy is to ensure that
States maintain the existing water quality of high quality waters (which
should be reflected by the water quality standards), the ultimate test of the
policy is whether all existing instream uses are protected. State requirements
can recognize that water quality may be allowed to deteriorate under specified
circumstances, as long as instream uses are protected. ONRW, however,
represent a special group of high quality waters. The ONRW designation
probably would be reserved for water in such areas as National or State parks,
wildlife refuges, and other waters of exceptional significance. In contrast,
it is the intention of the antidegradation policy to protect the existing
quality of designated ONRW absolutely, i.e., for these waters, water quality
and not instream uses is the prevailing criterion. States may prohibit new
releases to ONRW; this requirement, if promulgated, is a potential ARAR for
CERCLA discharges to ONRW.
In some cases where instream criteria of water quality standards are not
being achieved, designated uses are also not being attained. If the State is
convinced that a designated use is not attainable, specified procedures must
be followed for changing the designation. It should be noted, however, that
the technology-based treatment requirements under §§301(b) and 306 of the CWA
represent the minimum level of control that must be imposed on wastewater
discharges, including CERCLA discharges. If the State is committed to
achieving the designated use, all permits for new point-source discharges to
the stream must reflect a level of treatment that will achieve the instream
use. Although permits and other administrative requirements are not ARARs for
CERCLA discharges, achievement of the instream use for a new release as a
result of the CERCLA response action is a substantive requirement and is a
potential ARAR for CERCLA discharges.
The identification of State antidegradation requirements as potential
ARARs may pose some practical problems for Superfund remedial actions. Because
antidegradation statutes and regulations are often not expressed in
quantitative terms, the State must additionally specify the corresponding
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requirements. Similarly, the necessary State determinations in these statutes
and regulations authorizing degradation are seldom quantitative. Therefore, it
may require additional attention of State and Regional staff to determine
whether an on-site remedial action will result in degradation, whether that
degradation threatens existing (or potential) uses, and whether any necessary
findings to authorize degradation can be made.
7.2.4 Antidegradation Requirements for Ground Water
Antidegradation requirements for ground water are increasingly common in
State laws. Generally, antidegradation laws are prospective and are intended
to prevent further degradation of water quality. At a CERCLA site, therefore,
a State ground-water antidegradation law might preclude the injection of
partially treated water into a pristine aquifer. It would not, however,
require cleanup to the aquifer's original quality prior to contamination, nor
would it preclude the reinjection of partially treated water back into the
already contaminated portion of the aquifer as long as the reinjection does
not increase the existing level of contamination.
7.3 THE PROCESS OF COMMUNICATING STATE ARARs
7.3.1 Procedures for Ensuring Timely Communication of State ARARs
CERCLA §121(d)(2)(A) requires States to identify ARARs "in a timely
manner." Timely communication of ARARs allows their efficient and complete
consideration during the RI/FS process. It avoids duplication of effort and
other time-consuming activities. This Section describes how the objective of
timely identification and communication of State ARARS should be met.
The proposed revisions to the NCP describe a specific set of
relationships between lead and support agencies. This Section first discusses
the responsibilities of the State in the identification of State ARARs. It
then describes critical points in the remedial process that require
communication of State ARARs. The last Section describes the process of
resolving disputes between EPA and the State in the event of a disagreement.
7.3.1.1 The Roles of the State
The design and implementation of remedial actions can occur best when
lead and support agencies work together in a partnership arrangement. CERCLA,
as amended, and the proposed revisions to the NCP establish particular points
at which interaction between lead and support agencies must occur in the pre-
remedial and remedial response processes. This section describes the
responsibilities of the State and EPA under two scenarios:
! When the State serves as support agency; and
! When the State serves as lead agency.
The responsibilities in identifying State ARARs, to a large extent,
remain the same whether the State assumes the lead or support agency role.
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When the State is the support agency, however, the procedural issues regarding
State ARARs communication become more critical. This role is enhanced because
the consideration of State ARARs will depend upon the State's timely
communication of adequately documented State ARARs to EPA. Features of the
State's roles as support and lead agency are highlighted below.
The responsibilities of the State as the support agency are to:
! Receive and review information from EPA about
the nature of the contamination at the site and
the preliminary remedial alternatives being
considered;
! Interact/ensure coordination with all
appropriate State personnel for input on
potential ARARs;
! Identify chemical-specific and location-specific
State ARARs during the site characterization
phase of the RI/FS;
! Identify action-specific ARARs after the initial
screening of alternatives;
! Provide justification of State ARARs selected
(e.g., promulgated, more stringent, applicable
or relevant and appropriate (see Section 7.3.2))
and respond in writing to EPA's requests in a
timely manner; and
! Review the ROD for EPA's selection of ARARs and
any waivers of State ARARs.
The State as the lead agency has the responsibility to:
! Develop information about the site and the
nature of the contamination, as well as about
the remedial alternatives being considered;
! Prepare an ARARs request to EPA;
! Interact/ensure coordination with all
appropriate State personnel for input on
potential ARARs;
! Identify site-specific State ARARs during the
appropriate points in the RI/FS process;
! Identify any waiver in the Proposed Plan; and
! Document ARARs in the ROD.
The State, in either role, retains responsibility for identifying State ARARs and
communicating them in a timely manner. EPA, in either role, retains sole
responsibility for making the final selection of ARARs for the site. In addition,
the final authority to waive ARARs remains solely with EPA.
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7.3.1.2 Critical Points in the Remedial Process for the Identification and
Communication of State ARARs
Several points in the remedial process are particularly important in terms of
ARARs identification and communication. ARARs identification is generally tied to
preparation of key documents (for example, the RI/FS report) and is critical for
making decisions (for example, the selection of the preferred alternative for the
Proposed Plan). The two key points during the remedial process that require ARARs
identification and communication take place during preparation of the RI/FS report.
If State ARARs are identified during other points in the remedial process, such as
after the preparation of the Proposed Plan or after the ROD is adopted, EPA will
consider the ARAR according to the processes described below.
The following description of the critical phases for the communication of
State ARARs assumes that EPA and the State play the roles of the lead and support
agencies, respectively.
During Preparation of the RI/FS: The proposed revisions to the NCP indicate
that EPA and the State are to initiate discussions about potential ARARs and TBCs
during the scoping phase of the RI/FS. Formal letters of request that will require a
timely response from the State are to be prepared by EPA at two points during the
RI/FS process. First, EPA, as the lead agency, should request in writing potential
chemical- and location-specific ARARs from the State no later than the time at which
site characterization data are available. After the initial screening of
alternatives has been completed (but prior to the initiation of the comparative
analysis), EPA should request in writing that the State communicate any
action-specific ARARs and any additional potential ARARs that may have been
identified based on new information about the site. The State should communicate
potential State ARARs and TBCs in writing to EPA within 30 days of receipt of EPA's
letters of request.
Following Preparation of the Proposed Plan: There are several reasons why it
is critical that the State identify all potential State ARARs for a particular
response action prior to preparation of the Proposed Plan. First, EPA, as the lead
agency, in consultation with the State, is responsible for identifying a preferred
remedial alternative for public comment. In making this determination, it is
critical that all potential State ARARs have been identified, analyzed, and fed into
the decision-making process. Second, State ARARs are an integral part of determining
the standards of control and the remediation levels which assist in fashioning the
hazardous waste management approaches. And finally, the timely identification of
State ARARs will ensure that the public (including PRPs) and EPA will have an
adequate opportunity to comment on the information pertaining to the remedial
alternatives, including any proposed waivers from State ARARs.
The public comment period should not be used by States as an opportunity to
identify potential State ARARs that could have been identified and submitted to EPA
in a timely manner. Nevertheless, a situation may arise where a potential State ARAR
is identified and submitted to EPA during the
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public comment period. When this occurs, EPA will need to give consideration to this
new information, as it would any significant comment, criticism, or new data
submitted during this comment period. In analyzing this new information, EPA should
determine if it is an applicable or relevant and appropriate requirement. If so, the
ARAR should be incorporated into the pertinent remedial alternatives and factored
into the final decision making process. Where that ARAR prompts a significant change
to the information presented in the proposed plan, the lead agency must either
document the change in the ROD, or, in some instances, seek additional public
comment. (The Guidance on Preparing Superfund Decision Documents: the Proposed Plan
and Record of Decision, OSWER Directive 9355.3-02, June 1989, provides criteria for
making this determination.)
After the ROD is Adopted: After the ROD has been signed, newly promulgated
State ARARs may be identified that could potentially cause EPA to change the remedy
selected in the ROD. EPA will incorporate the new State ARAR into the remedial
action if it is based on new scientific information that demonstrates that the
proposed remedy is no longer protective. This reevaluation will generally take place
at the 5-year review. For any other newly-promulgated State ARARs not meeting the
aforementioned criteria, or any existing State ARARs not previously identified
(i.e., not submitted in a timely manner), the EPA will use its discretion to
determine whether to incorporate them into the remedial action.
7.3.1.3 Dispute Resolution19
The proposed revisions to the NCP outline a dispute resolution process that
the Regions and States can use during the remedial action process. Typically,
conflicts regarding ARARs identification are to be resolved by negotiation at the
staff and management levels between the Regional office and the State, with
assistance from EPA Headquarters, if warranted. Regardless of the dispute resolution
process adopted by the Region and the State, it should be applied to any differences
that might impede the response process. Unresolved disputes may ultimately be
decided by the Assistant Administrator for Solid Waste and Emergency Response, if
necessary.
7.3.2 Documentation of State ARARs
At those sites for which the State is not the lead agency, it is incumbent
upon whomever is conducting the RI/FS to provide sufficient information about the
site and remedial alternatives to permit the State to identify potential ARARs. In
addition, it is the responsibility of the State to provide EPA with adequate
information to enable EPA to determine which of the potential State ARARs are
actually ARARs at the site under the various remedial alternatives.
19 This section refers to procedures to be followed in the absence of a
Superfund Memorandum of Agreement (SMOA), which is discussed in Section 7.3.3.
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The State, as support agency, should seek to anticipate some of the questions
that EPA might raise concerning potential State ARARs. The State should substantiate
its submission by including the following:
! Promulgated: evidence that the requirements are
legally enforceable and of general
applicability, e.g., a bill or statute number,
date of enactment or effective date, or
description of scope;
! More Stringent: evidence that the requirement
meets the criteria for stringency described in
Section 7.1.2; and
! Applicable or Relevant and Appropriate: a
description of the connection between the
statute, regulation, or provision and the site
characteristics/remedies.20
ARAR identification is a site-specific process. To ensure complete
consideration of a State's concern in the remedial design process, it is important
for the State to point out the connection between the ARAR it identifies and the
characteristics of the site or remedial alternatives under consideration. When the
State is providing ARAR information to EPA, the State should explain in as clear and
succinct a manner as possible the reasons that each requirement is proposed as an
ARAR. A timely communication of ARARs is one that can be used without numerous
requests for clarification and detail. Because in many cases only sections of a
State statute or regulation may be ARARs, it is important for the State to
accurately identify particular provisions and to provide references and citations to
clarify its intent.
7.3.3 Superfund Memorandum of Agreement and ARARs
The Superfund Memorandum of Agreement (SMOA) delineates the working
relationships between States and EPA Regions and defines their roles and
responsibilities.21 CERCLA, as amended, provides for a cooperative Federal State
relationship in all cleanup activities: pre-remedial, remedial, and enforcement. A
SMOA is the mechanism through which non-site-specific, Federal-State roles are to be
delineated. SMOAs are not mandatory but are strongly encouraged by EPA.
In terms of ARAR identification, the SMOA can become the mechanism that:
! Defines the requirements for interaction,
including timeframes for review of response
process documents and materials; and
20 This analysis is consistent with that of Federal requirements. See Section
1.2.4 of Part I.
For more information on SMOAs, see Draft Guidance on Preparing a Superfund
Memorandum of Agreement (SMOA), OSWER Directive 9375.0-01.
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! Establishes a process for resolving disputes
about implementation of the procedures in the
SMOA or any site-specific assignments.
A SMOA cannot identify in advance which State requirements are ARARs for
specific sites. However, by establishing responsibilities for each party in
identifying, communicating, and documenting ARARs and TBCs, the Agency hopes to
minimize disputes between EPA and the States. The SMOA establishes a working
relationship that will protect the technical and substantive interests of all
parties, without introducing excessive administrative procedures or delay.
SMOAs are negotiated to cover all Superfund activities in a State and should
form the basis of subsequent site-specific agreements. The provisions of a SMOA
should remain applicable for a number of years, although annual review and minor
modifications may be required.
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APPENDIX A
POTENTIAL CLEAN AIR ACT ARARs FROM CLEAN AIR ACT PART C
(PREVENTION OF SIGNIFICANT DETERIORATION)
This appendix provides information on the requirements contained in Part C of
the Clean Air Act for the prevention of significant deterioration (the PSD program)
of air quality in attainment (or unclassified) areas.
A.I PSD CLASSIFICATION AND IMPLEMENTATION
The PSD regulations (40 CFR Part 52) classify PSD areas as either Class I,
Class II, or Class III.1 Each classification differs in the amount of growth it will
permit before significant air quality deterioration would be deemed to occur.
Significant deterioration is said to occur when the amount of new pollution would
exceed the applicable maximum allowable increase ("increment"), the amount of which
varies depending upon the classification of the area. The reference point for
determining air quality deterioration in an area is the baseline concentration,
which is essentially the ambient concentration existing at the time of the first PSD
permit application submittal affecting that area. To date, PSD increments have been
established only for sulfur dioxide, nitrogen dioxide, and particulate matter2 (see
Exhibit A-l).
PSD requirements are implemented through a pre-construction review process,
conducted either by EPA, or by the State, if EPA has approved the State's PSD plan
or if the State has been delegated EPA's authority. The review process requires that
new major stationary sources and major modifications be carefully reviewed prior to
construction to ensure compliance with the NAAQS and the applicable PSD air quality
increments and application of the best available control technology (BACT) on the
project's emissions of all regulated pollutants (i.e., pollutants regulated under
NAAQS, NESHAPs, and NSPS). Moreover, if application of a control system results
directly in the release of pollutants that are not currently regulated under the
CAA, the net environmental impact of such emissions must be considered in making the
BACT determination for pollutants that are regulated.
Class I areas have the smallest increments and thus allow only a small
degree of air quality deterioration. Certain wilderness areas and national parks are
mandatory Class I areas (see 40 CFR section 51.166). Class II areas can accommodate
normal well-managed growth. Class III designations have the largest increments and
are appropriate for areas desiring a larger amount of development (currently, no
areas have been designated Class III). In no case is the air quality of an area
allowed to deteriorate beyond the NAAQS. With the exception of the mandatory Class I
areas, all clean areas in the country were initially designated as Class II.
PSD increments for particulate matter less than 10 microns in particle size
(PM10) are under development.
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EXHIBIT A-l
ALLOWABLE PSD INCREMENTS3
( g/m3'
Class I
Class II
Class III
Sulfur Dioxide
! annual
I
24-hour
2
5b
20
91b
40
182b
3-hour
25b
512b
700b
Total Suspended
Particulate Matter
! annual
19
37
24-hour
10b
37b
75b
Nitrogen Dioxide
annual
2.5
25b
50b
40 CFR section 52.21(c)
Not to be exceeded more than once per year.
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A.2 APPLICABILITY OF PSD REVIEW
A.2.1 Stationary Source
A stationary source generally includes all pollutant-emitting
activities that belong to the same industrial grouping, are located
on contiguous or adjacent properties, and are under common control.
Thus, all emissions points at a Superfund site would be considered
one stationary source for purpose of determining applicability of PSD
review. However, only major new sources or major modifications are
subject to this review. Source size is defined in terms of "potential
to emit," i.e., the capability at maximum design capacity to emit a
pollutant after the application of all required air pollution control
equipment and after taking into account all Federally enforceable
requirements restricting the type or amount (e.g., prohibition on
nighttime operation) of source operation.3
A.2.2 Major Source or Major Modification
A "major stationary source" is any new source type belonging to
a list of 28 source categories, e.g., petroleum refineries or primary
lead smelters, that emit or have the potential to emit 100 tons per
year or more of any regulated pollutant. The source categories are
identified at 40 CFR section 52.21(b)(1)(i)(a)) (see Exhibit A-2).
Any other source type (e.g., pollutant-emitting activities during a
Superfund cleanup action) that emits (or has the potential to emit)
250 or more tons of any regulated pollutant per year is also
considered a major source. If Federally enforceable controls are
imposed that limit emissions to less than 250 tons per year, PSD
requirements will not apply.
Where there is an existing major stationary source, a Superfund
site could trigger a "modification" to that source. A "major
modification" is generally a physical or operational change in a
major stationary source that would result in a "significant" "net
emissions increase" for any regulated pollutant. Specific numerical
cutoffs that define "significant" increases are identified in 40 CFR
section 52.21(b) (23) (see Exhibit A-3). A Superfund site would be
considered a modification to an existing source (e.g., an ongoing
industrial facility) only where the site is physically connected to
or immediately adjacent to the existing source, a responsible party
(RP) is conducting the cleanup, the (RP) is also the owner or
operator of the existing source, and the CERCLA site is somehow
associated with the operations of the existing source. Cleanup
actions conducted by other than the owner or operator of the adjacent
facility would not be considered a modification to the existing
source. This is consistent with the interpretation of
3 "Federally enforceable" means that: (1) the restriction must
be required by a Federal or State permit granted under the applicable
SIP or embodied in the SIP itself, and (2) the source and/or the
enforcement authority must be able to show compliance or
noncompliance.
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EXHIBIT A-2
NAMED PSD SOURCE CATEGORIES6
1. Fossil fuel-fired steam electric plants of more than 250
million Btu/hr input
2. Coal cleaning plants (with thermal dryers)
3. Kraft pulp mills
4. Portland cement plants
5. Primary zinc smelters
6. Iron and steel mill plants
7. Primary aluminum ore reduction plants
8 . Primary copper smelters
9. Municipal incinerators capable of charging more than 250 tons
of refuse per day
10. Hydrofluoric acid plants
11. Sulfuric acid plants
12 . Nitric acid plants
13. Petroleum refineries
14 . Lime plants
15. Phosphate rock processing plants
16. Coke oven batteries
17. Sulfur recovery plants
18. Carbon black plants (furnace process)
19. Primary lead smelters
20. Fuel conversion plants
21. Sintering plants
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EXHIBIT A-2 (continued)
NAMED PSD SOURCE CATEGORIES
22. Secondary metal production plants
23. Chemical process plants
24. Fossil fuel boilers (or combinations thereof) totaling more
than 250 million Btu/hr heat input
25. Petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels
26. Taconite ore processing plants
27. Glass fiber processing plants
28. Charcoal production plants
aSource: 40 CFR section 52.21(b) (1)(i)(a;
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EXHIBIT A-3
SIGNIFICANT EMISSION RATES
FOR DETERMINING PSD MAJOR MODIFICATIONS5
Pollutant
Emissions Rate (tons/yr)
Carbon monoxide
Nitrogen oxides
Sulfur dioxide
Particulate matter
(Total Suspended Particulates)
PM10
Ozone (VOC)
Lead
Asbestos
Beryllium
Mercury
Vinyl chloride
Fluorides
Sulfuric acid mist
Hydrogen sulfide (H2S)
Total reduced sulfur
(including H2S)
Reduced sulfur compounds
(including H2S)
Any other pollutant regulated
under the Clean Air Act
100
40
40
25
15
40 (of VOCs)
0.6
0.007
0.0004
0.1
1
3
7
10
10
10
Any emission rate
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EXHIBIT A-3 (Continued)
SIGNIFICANT EMISSION RATES
FOR DETERMINING PSD MAJOR MODIFICATIONS5
Pollutant
Emissions Rate (tons/yr)
Each regulated pollutant
Emission rate that causes
an air quality impact of 1
g/m3 or greater (24-hour
basis) in any Class I area
located within 10 km of
the source
Extracted from 40 CFR section 52.21(b)(23).
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modification under the CAA, i.e., only changes to a facility by the
owner or operator may be considered modifications.
Fugitive emissions are not to be considered in determining
whether a source would be a major source (i.e., the 100 or 250
tons/year threshold), except when such emissions come from source
categories listed in 40 CFR section 52.21(b) (1) (c) (iii) . Fugitive
emissions are those emissions that cannot reasonably be expected to
pass through a stack, vent, or other functionally equivalent opening,
such as a chimney, roof vent, or roof monitor. Fugitive emissions
would not be counted in with CERCLA site emissions unless the site is
considered a modification to one of the listed source categories.
To determine whether a modification' s "net emissions increase"
would qualify as "significant," the potential to emit resulting from
the physical or operational change must be determined. This amount is
added to any other increase or decrease in actual emissions at that
source (i.e., the source adjacent to the Superfund site) that are
contemporaneous with the particular change (within the preceding 5
years, or in the case of an approved State program, such other period
that may be specified therein) and are otherwise creditable.4 If the
total exceeds zero, a net emissions increase is considered to result
from the change. For example, if the net emissions increase (i.e.,
the net difference between the Superfund cleanup activity and
increases/decreases at the adjacent facility) is larger than the
numerical cut-offs for significant increases (see Exhibit A-3), then
the modification is a "major modification."
A.2.3 PSD Area
PSD requirements will be applicable to a Superfund action when
such action is a major source or modification for any criteria
pollutant and the source is located in a PSD area. A PSD area is one
which the State has designated as an attainment area (or not
classified because of lack of data). (An area designated as a
non-attainment area is not a PSD area.) Although the area may be
designated as an attainment area for one or more criteria pollutants,
substantive PSD requirements would cover any criteria pollutant
emitted on site by a major source or modification at a Superfund
site .
A.2.4 Pollutants for Which Area Is PSD
Once the lead agency has determined that the Superfund actions
may be a major source or modification located in a PSD area, further
analysis of potential emissions should be done to determine which
pollutants will be emitted. A PSD area may also be designated
non-attainment for particular pollutants. In such a case, if
emissions were expected to contain pollutants
4 A contemporaneous increase or decrease is creditable only if
the relevant reviewing authority has not relied on it in issuing a
PSD or other CAA permit for the source, and that permit is still in
effect when the increase in actual emissions from the particular
change occurs.
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for which the area is designated attainment and pollutants for which
the area is designated non-attainment, both PSD and non-attainment
(new source -- see Section 2.1.3 of Chapter 2 of Part II)
requirements would be potential ARARs.
A.2.5 PSD Review Applies to Significant Emissions
The PSD review applies to all significant emissions of
regulated air pollutants at a major new source, and to significant
net increases at a major modification (see Exhibit A-3).5 In
addition, an emission is still considered "significant" if the major
source is constructed within 10 kilometers of a Class I area and has
an impact on such an area equal to or greater than 1 microgram/cubic
meter (24-hour average) for any regulated pollutant. See 40 CFR
section 52.21(b) (23) (iii) .
The PSD regulations contain specific exceptions for some forms
of construction. For example, PSD review requirements do not apply to
a major source or modification that is a:
Nonprofit health or educational institution when
such exemption is requested by the governor; or
Portable source which has already received a PSD
permit and proposes relocation.6
A. 3 SUBSTANTIVE REQUIREMENTS OF PSD REVIEW
A.3.1 Best Available Control Technology
Any major source or modification subject to PSD review (a "PSD
source") must ensure application of BACT. BACT requires the maximum
degree of reduction of continuous emissions achievable for each
regulated pollutant. The analysis to determine what BACT is for a
particular source must evaluate the energy, environmental, economic,
and other costs associated with each alternative technology, and the
benefit of reduced emissions that the technology would bring (some
States consider the duration of emissions in this analysis.)
5 In determining whether the emissions of a particular pollutant
are "significant," the net amount of emissions from all emissions
points within a source is estimated.
6 Other conditions for obtaining a portable source exemptions
are that: (1) emissions at the new location will not exceed
previously allowed emission rates; (2) emissions at the new location
are temporary; and (3) the source will not adversely affect a Class I
area or contribute to either any known increment or violation of a
NAAQS. The source must provide reasonable advance notice to the
reviewing authority of the relocation.
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BACT is applied at each emissions point, and is required for
each regulated pollutant being emitted by the source in significant
amounts (see Exhibit A-3). Moreover, the BACT analysis must also
consider emissions of nonregulated toxic pollutants in determining
BACT for a regulated pollutant. Thus, for example, if two alternative
control devices would provide the same degree of reduction in
emissions of the regulated pollutant, but one of them is more
effective in controlling unregulated toxic emissions, that device
would be more appropriate as BACT. In addition, if there is no
economically reasonable or technologically feasible way to accurately
measure the emissions, and hence to impose an enforceable emissions
standard, the source may be required to use source design,
alternative equipment, work practices, or operational standards to
reduce emissions of the pollutant to the maximum extent.
A.3.2 Ambient Air Quality Analysis
Each source or modification undergoing PSD review must perform
an air quality analysis to demonstrate that its new pollutant
emissions will not cause or contribute to air pollution in violation
of either the applicable NAAQS or PSD increment.7 This analysis must
be based on the applicable Air Quality Models (EPA-450/2-78-027R) or
an approved substitute. The six basic steps in an air quality
analysis are as follows:
Define the impact area of the proposed major
source or major modification for each applicable
pollutant. To properly establish the impact area
(i.e., where the applicable emissions will have a
significant impact on ambient concentrations) in
order to determine compliance with applicable
NAAQS and increments, the PSD source should
consult the review agency dispersion modeling
contact to receive concurrence on:
Selection of an appropriate dispersion
model;
of adequate and representative
meteorological data;
and
Techniques and assumptions to be used in
the analysis.8
7 Some States may exempt a temporary source (e.g., fugitive dust
from construction operations) from the increment analysis for
particulate matter (see below).
8 The latest revisions of the EPA documents Guideline on Air
Quality Models (revised, July 1986, and Supplement A, 1987) and the
Guidelines for Air Quality Maintenance Planning and Analysis, Volume
10 (October 1977) serve as helpful guidelines for acceptable
dispersion modeling. However, since no two scenarios are identical,
it is the PSD source's responsibility to consult with the review
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Determination of the impact area of the proposed
source must include all direct emissions,
including both stack and quantifiable fugitive
emissions of applicable pollutants, and
"Secondary emissions." Secondary emissions are
those that would occur as a result of the
construction or operation of the proposed source,
but do not come from the source itself (e.g.,
off-site support facilities) . However, temporary
emissions, such as those related to construction,
need not be considered.
* Establish appropriate inventories. The PSD source
is required to compile an emissions inventory of
applicable criteria pollutants that have been
demonstrated to result in significant impacts. In
addition, an inventory of applicable noncriteria
pollutants may be required to determine if these
pollutants exist or will exist in high
concentrations that may pose a threat to human
health or welfare. Actual emissions should be
used to reflect the impact that would be detected
by ambient air monitors.
Determine existing ambient air concentrations for
these pollutants. The air quality analysis for
criteria pollutants consists of ambient
monitoring data that represents air quality
levels in the last year's period preceding the
PSD application. EPA has published specific
guidelines for a PSD source in Ambient Monitoring
Guidelines for Prevention of Significant
Deterioration. The use of existing representative
air quality data will be permitted in lieu of
site-specific monitoring where the data are
determined representative and adequate. For
pollutants for which NAAQS do not exist, the,
required analysis will normally be based on
dispersion modeling alone. Further, de minimis
increases of pollutants are exempt from
monitoring requirements (see Exhibit A-4).
* Determine how much of the increment is available.
Sources that propose to emit sulfur dioxide,
nitrogen dioxide, or particulate matter must also
perform an analysis to compute how much of the
PSD increment in that area remains available to
them (see Exhibit A-l).Increment, concentration
is, in general, that portion of ambient air
concentration in an area which results from:
agency to ensure that the methods and procedures to be used in
performing the dispersion modeling are appropriate.
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EXHIBIT A-4
DE MINIMIS AIR QUALITY IMPACTS
(PSD APPLICABILITY)3
Carbon monoxide -- 575 g/m3, 8-hour average;
Nitrogen dioxide -- 14 »g/m3, annual average;
Total suspended particulate -- 10 »g/m3, 24-hour average;
PM10 -- 10 »g/m3, 24-hour average;
Sulfur dioxide -- 13 g/m3 , 24-hour average;
Ozone;b
Lead -- 0.1 »g/m3, 24-hour average;
Mercury -- 0.25 g/m3, 24-hour average;
Beryllium -- 0.0005 g/m3, 24-hour average;
Fluorides -- 0.25 g/m3, 24-hour average;
Vinyl chloride -- 15 g/m3, 24-hour average;
Total reduced sulfur -- 10 g/m3, 1-hour average;
Hydrogen sulfide -- 0.04 g/m3, 1-hour average;
Reduced sulfur compounds 10 »g/m3, 1-hour average.
a 40 CFR section 52.21(1) (4) (vii)
b No de minimis air quality level is provided for ozone.
However, any net increase of 100 tons per year or more of volatile
organic compounds subject to PSD would be required to perform an
ambient impact analysis including the gathering of ambient air
quality data.
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Actual emissions from any major stationary
sources on which construction commenced January
6,1975; and
-- Actual emission increases and decreases at all
stationary sources occurring after the baseline
date.
The baseline date is the date after the "trigger"
date (August 7, 1977 for sulfur dioxide and
particulate matter; February 8, 1988 for nitrogen
dioxide) when the first complete PSD application is
submitted by a proposed major source or major
modification. The area in which the baseline date is
triggered by a PSD permit application is known as the
baseline area. In general, increment consumption and
expansion are based on actual emissions. However, if
little or no operating data are available, as in the
case of permitted emissions units not yet in
operation at the time of the increment analysis, the
allowable emission rate must be used.9
Perform a screening analysis for each applicable
pollutant. This interim, worst-case scenario analysis
will primarily provide the PSD applicant with some
essential data:
-- An approximation of the maximum downwind impacts;
A general idea of the location of the maximum
impacts; and
Quick preliminary results.
Both quantifiable fugitive emissions and stack emissions
should be included in the screening analysis. In
addition, if secondary emissions are quantifiable and are
expected to affect the air quality in the impact area,
they should also be included in the screening analysis.
If the screening analysis shows that the source will not
cause or contribute to a violation of a NAAQS or PSD
increment, no refined analysis is required.
9 "Allowable emissions" is defined at 40 CER section
52.21(b)(16) as the emissions rate using the maximum rated capacity
of the source and the most stringent of either NSPS/NESHAPs, SIP
limitation, or the emissions rate in a Federally enforceable permit.
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Perform a refined analysis to determine projected
air quality resulting from emissions of applicable
pollutants. The objective is to determine with
greater certainty whether the PSD source will in
fact cause or contribute to air pollution that
results in violation of either a NAAQS or a PSD
increment. The refined dispersion modeling analysis
will use the emissions inventory and all other data
gathered up through the screening analysis.
Concurrence from the reviewing agency is
recommended before starting the analysis to confirm
that the techniques used are considered valid.
A.3.3 Other Impacts Analysis
A source is required to analyze whether its proposed
emissions increases will impair visibility or adversely impact soils
or vegetation.
A. 3. 4 No Adverse Impact on a Class I Area
If emissions from a source could impact a Class I area, the
regulations require notification to the Federal Land Manager and the
Federal official charged with direct responsibility for managing
these lands. If the Federal Land Manager demonstrates that emissions
from a proposed source would impair air quality-related values, even
though the emissions levels would not cause a violation of a NAAQS or
the allowable air quality increment, the Federal Land Manager may
recommend that the emission not be allowed.
A.3.5 Other Requirements
The regulations solicit and encourage public participation in
the PSD review process. Also, post-construction monitoring is
sometimes required of the PSD source. However, de minimis amounts
under 40 CFR section 52.21(1) (8) (see Exhibit A-4) may be exempt from
this requirement. This requirement may also be satisfied by existing
monitors.
A.4 NON-ATTAINMENT
Any major source or major modification (same definition as
under PSD, except that 100 tons per year is the "major" size
threshold for all source categories) that will emit NAAQS pollutants
for which an area has been designated non-attainment must comply with
the requirements of Part D of the CAA with respect to those
pollutants. Many air quality regions are currently non-attainment for
ozone. The Part D requirements are as follows:
Offsets. At the time that the proposed new source
is to begin operating, total allowable emissions
from all existing sources in the area, including
the proposed source, must be "sufficiently less"
than total emissions from existing sources allowed
under the applicable SIP prior to the permit
application. The term "sufficiently less" means
emissions
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reductions that, when considered together
with other SIP provisions, would constitute
"reasonable further progress" toward
attaining the NAAQS. This condition generally
requires that the proposed source obtain an
offset, i.e., secure an emissions reduction
elsewhere in the impact area of emissions ,of
the pollutant (s) that it proposes to emit.
The offset must be better than one to one,
i.e., the reduction must be greater than the
proposed emission. In addition, the reduction
must be Federally enforceable. Some States
may exempt temporary sources from this
requirement.
Construction moratorium. CAA §110 (a) (2) (I)
provides that no major stationary source shall
be constructed or modified in a non-attainment
area if the emissions from the source will
cause or contribute to concentrations of any
pollutant for which the area is non-attainment
unless the non-attainment plan meets the
requirements of Part D. Major
sources/modifications are subject to offset
requirements and the construction moratorium
only if they emit in major amounts the
pollutant for which the area is designated
non-attainment.
Allowable concentrations. Emissions from the
proposed source will not cause or contribute
to concentrations in excess of the allowable
concentration of the pollutant permitted of
new and modified sources under the applicable
non-attainment plan.
Lowest achievable emissions rate. The proposed
source must apply the lowest achievable
emission rate (LAER) control technology. LAER
means for any source the more stringent rate
of emissions based on either of the following
(40 CFR section 51.165 (a) (1) (xiii) ) :
-- The most stringent emissions limitation
that is contained in the SIP of any State for
such class or category of stationary source,
unless the owner or operator of the proposed
stationary source demonstrates that such
limitations are not achievable; or
The most stringent emissions limitation
that is achieved in practice by such class or
category of stationary source.
LAER must be at least as stringent as an
applicable NSPS. The LAER requirement (and
other substantive
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non-attainment new source review provisions)
applies to each regulated pollutant emitted by
a major new source in a "major" amount --
i.e., in excess of 100 tons per year and by
a major modification in a "significant" amount
(see Exhibit A-3) for which the area is
non-attainment.
Statewide compliance by the owner/operator.
The owner or operator of the proposed source
demonstrates that all major sources that it
owns or operates elsewhere in the State are in
compliance with all applicable emission
limitations and standards, or are on a
compliance schedule to do so.
* Non-attainment plan. The attainment plan
is being implemented.
If the proposed source or modification cannot meet
all of these conditions, it will not be allowed to be
constructed.
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APPENDIX B
FEDERAL/STATE RELATIONSHIPS UNDER MAJOR ENVIRONMENTAL STATUTES
ACT TITLE
Does the statute allow for or
require Federally author!zed
State programs to carry out
provisions of the statute?
For those provisions that are
authorized to the State, must
the State program be identical
or equivalent ? Can the State
program be more stringent?
Are there authorization
provisions requiring the
States to adopt changes as
Federal regulations change?
Federal Water Pollution
Control Act (Clean Water
Act)
States can be authorized to
administer and enforce all
provisions of statute,
[particularly through the
granting of NPDES permits,
general permits, Federal
facility permits, and dredge
and fill permits].
States, if authorized, must
develop compliance schedules
for effluent limitations
(§301), maximum daily load
requirements, water quality
standards (§303), and toxic
chemicals listed in §307.
States must assess attainment
of water quality standards
and identi fy strategies to
achieve attainment of
standards.
Only EPA can establish
national effluent
limitations guidelines and
standards for industrial
categories of point-source
discharges [but permits may
be based on more stringent
State standards].
State program must be
"consistent" with all
provisions of the Clean Water
Act, must meet minimum
regulations for State programs
as defined by 40 CFR Part 121
(certification of activities
requiring a federal permit) 4 0
CFR Part 123 (NPDES program),
and 40 CFR Part 233 (dredge and
fill program).
States may adopt and enforce
any discharge standard or
limitation or other requirement
respecting abatement of
pollution if not less stringent
than Federal requirements (CWA
§510).
State program must at all
times be in accordance with
the Clean Water Act and
guidelines promulgated
pursuant to CWA. The statute
does not address how quickly
States must reflect changes
to the CWA or to Federal
guidelines or criteria.
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APPENDIX B
ONSHIPS UNDER MAJOR ENVIRONMENTAL STATUTES
(continued)
ACT TITLE
Does the statute allow for or
require Federally author!zed
State programs to carry out
provisions of the statute?
For those provisions that are
authorized to the State, must
the State program be identical
or equivalent ? Can the State
program be more stringent?
Are there authorization
provisions requiring the
States to adopt changes as
Federal regulations change?
States may be authorized to
issue permits and enforce
regulations for hazardous
waste TSD facilities.
States must develop a
continuing programs to
compile, publish, and submit
to EPA a complete inventories
of all hazardous waste
facilities in the States.
EPA administers and enforces
regulations on export of
hazardous waste (RCRA
§3017).
HSWA regulations remain
under Federal jurisdiction
until State receives
authorization
State programs must be
"equivalent to Federal
programs," "consistent with
Federal and other approved
State programs," and must
provide "adequate" enforcement
of compliance with Federal
regulations. State programs ma^
be more stringent.
State programs must be
consistent with regulations
promulgated under RCRA. When
new Federal regulations are
promulgated under HSWA, EPA
has authority to issue,
deny, and enforce permits
until the State receives
interim or final
authorization for an amended
program.
States must develop solid
waste management plans that
prohibit waste disposal in
"open dumps" and that provide
for the closing or upgrading
of all existing open dumps.
State solid waste plans must be
"consistent with the minimum
requirements" for approved
State programs.
When Federal regulations are
promulgated under RCRA,
however, the regulations are
not applicable until the
State program (if an
author!zed State) adopts
those regulations (must
adopt within 2 years).
State programs are
inconsistent if they
unreasonably restrict
movement of hazardous waste
across State border's or if
they have no basis in human
health or the environment
and act as a prohibition on
treatment, storage, and
disposal of hazardous waste.
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APPENDIX B
ONSHIPS UNDER MAJOR ENVIRONMENTAL STATUTES
(continued)
ACT TITLE
Does the statute allow for or
require Federally author!zed
State programs to carry out
provisions of the statute?
Which provisions remain
under exclusive Federal
jurisdiction?
For those provisions that are
authorized to the State, must
the State program be identical
or equivalent ? Can the State
program be more stringent?
Are there authorization
provisions requiring the
States to adopt changes as
Federal regulations change?
States may develop and
enforce detection,
prevention, and correction
regulations for underground
oil and hazardous substance
storage tanks.
States may enter into A
management agreement with the
Department of the Interior to
administer and manage areas
established for the
conservation of endangered or
threatened species.
States may establish program
for conservation of all
resident Federally-designed
endangered or threatened
species, including
enforcement of protective
regulations.
Only Department of Interior
(DOI) may designate
endangered species and
critical habitats,
promulgate protective
regulations or prohibitions
under this Act, and issue
exemptions from these
regulations.
State UST regulations must be
"no less stringent" than
Federal UST regulations. State
regulations may be more
stringent.
State laws regarding export or
import of endangered species
"must not permit any activity
prohibited under this Act, or
prohibit any act authorized by
an exemption under this Act."
State laws concerning the
taking of an endangered species
"may be more restrictive" than
Federal restrictions, "but not
less restrictive."..
Fish and Wildlife
Conservation Act of 1980
State may develop a
conservation plan and program
for non-same fish and
wildli fe not included in the
Endangered Species Act.
Program should provide an
inventory of fish and
wildli fe species and
determine actions to be taken
to conserve species and their
habitats.
B-3
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APPENDIX B
ONSHIPS UNDER MAJOR ENVIRONMENTAL STATUTES
(continued)
ACT TITLE
Does the statute allow for or
require Federally author!zed
State programs to carry out
provisions of the statute?
Which provisions remain
under exclusive Federal
jurisdiction?
For those provisions that are
authorized to the State, must
the State program be identical
or equivalent ? Can the State
program be more stringent?
Are there authorization
provisions requiring the
States to adopt changes as
Federal regulations change?
Fish and Wildlife
Coordination Act
Rivers and Harbors Act
Wild and Scenic Rivers Act
State agency must be
consulted before any water
body in the State is modi fled
by a Federal agency; such
modi fication must be approved
jointly by head of State
agency, Federal agency
performing the action, and
Department of the Interior.
The building of bridges,
causeways, dams, or dikes
over navigable waters of the
U.S. falls under State
authority only when the
navigable portions of such
waters are within the State's
boundaries and when
construction plans are
approved by the Army Corps of
Engineers.
Rivers designated as State
wild, scenic, or recreational
rivers may apply for Federal
designation as national wild,
scenic, or recreational
rivers.
Only Department of Interior
may acquire lands on which
modi fication of a water body
takes place, to ensure
protection of fish and
wildli fe.
All other construction of
bridges, causeways, dams, or
dikes over U.S. navigable
waters must be approved by
Congress. All regulation of
such construction and other
modi fication of these waters
is administered and enforced
by the Federal government.
Department of Interior
prepares comprehensive
management plans for all
national wild, scenic, and
recreational rivers, with
State consultation.
No restrictions on State
regulations.
Management program's for wild N.A.
and scenic rivers may establish
plans of "varying degrees of
intensity" for the protection
and development of the river.
Management plane for rivers
receiving such designation
must be administered by the
State.
The State may participate in
the administration and
enforcemet of management
plans for rivers designated
as wild, scenic, or
recreational rivers by
Congress.
Only the Department of the
Interior is authorized to
acquire lands and interests
within boundaries of the
national wild, scenic, or
recreational river.
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B-4
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APPENDIX B
ONSHIPS UNDER MAJOR ENVIRONMENTAL STATUTES
(continued)
ACT TITLE
Does the statute allow for or
require Federally author!zed
State programs to carry out
provisions of the statute?
Which provisions remain
under exclusive Federal
jurisdiction?
For those provisions that are
authorized to the State, must
the State program be identical
or equivalent ? Can the State
program be more stringent?
Are there authorization
provisions requiring the
States to adopt changes as
Federal regulations change?
Safe Drinking Water Act
S National Primary Drinking
Water regulations
Safe Drinking Water Act
S Underground Injection
Control (UIC) programs
State may be author!zed to
administer and enforce
national primary drinking
water regulations (including
MCLs and treatment technique
requirements) and secondary
drinking water regulations.
State may be author!zed to
issue and enforce UIC permits
and all Federal regulations
concerning underground
inj ection.
EPA may rescind, upon making
certain showings, variances
and exemptions granted by
the State.
State primary drinking water
regulations must be "no less
stringent" than Federal
regulations and may be more
stringent. State conditions for
granting variances or
exemptions must be no less than
the stringent conditions under
which Federal variances and
exemptions are granted.
Conditions may be more
stringent.
State regulations must be no
less stringent than Federal UIC
regulations. May be more
stringent.
State primary drinking water
regulations must be no less
stringent than Federal
standards promulgated under
Act. The statute and
regulations do not address
how quickly States must
adopt changes to the SDWA or
to Federal primary drinking
water regulations.
State regulations must be no
less stringent than Federal
standards promulgated under
Act. The statute does not
address how quickly States
must reflect changes to SDWA
or to Federal guidelines or
criteria.
- Wellhead Protection
States are required to adopt
program to protect wells and
recharge areas that supply
public drinking water systems
from contamination.
No provision for State
administration of Ocean
Dumping Permit program or
National Marine Sanctuaries
Program. States may be called
upon to assist in enforcing
permits.
EPA is responsible for
publishing guidance to
assist States in preparing
their wellhead protection
programs (No Federal
requirements).
All provisions of Act remain
under Federal jurisdiction,
including establishment and
enforcement of Ocean Dumping
permit regulations and
National Marine Sanctuaries
Program.
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APPENDIX B
ONSHIPS UNDER MAJOR ENVIRONMENTAL STATUTES
(continued)
ACT TITLE
Does the statute allow for or
require Federally author!zed
State programs to carry out
provisions of the statute?
Which provisions remain
under exclusive Federal
jurisdiction?
For those provisions that are
authorized to the State, must
the State program be identical
or equivalent ? Can the State
program be more stringent?
Are there authorization
provisions requiring the
States to adopt changes as
Federal regulations change?
Uranium Mill Tailings
Radiation Control Act
National Historic
Preservation Act -
Preservation of historical
and archeological data
threatened by Federal agency
proj ect
State may implement and
enforce Uranium Mill
Licensing requirements and
issue licenses for uranium
processing and uranium
tailing depository sites.
State may develop [and
receive Federal grants for] a
Coastal Zone Management
Program that includes the
authority to administer land
and water use regulations,
establish criteria and
standards for local or State
implementation, develop
siting standards for energy
and other facilities, and
make void local land and
water use regulations.
Approved State may prepare
and implement a comprehensive
statewide historic
preservation program and
nominate sites to the
National Register of Historic
Places.
State program and any
amendments to it must be
approved by Department of
Commerce. Department may
also overrule author!zation
of projects within the
coastal zone.
Department of Interior
authorized to regulate the
preservation of historical
and archeological data
threatened by proj ect
funded, permitted, or
implemented by a Federal
agency.
State licensing requirements
must be "equivalent or more
stringent" than Federal
standards.
No Federal program. State
program must meet rules and
regulations for such programs,
including the assurance that
local land and water use
regulations are not
"unreasonably restrictive."
State requirements must be
equivalent to any
requirements ever
promulagated under this Act.
B-6
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APPENDIX B
ONSHIPS UNDER MAJOR ENVIRONMENTAL STATUTES
(continued)
ACT TITLE
Does the statute allow for or
require Federally author!zed
State programs to carry out
provisions of the statute?
Which provisions remain
under exclusive Federal
jurisdiction?
For those provisions that are
authorized to the State, must
the State program be identical
or equivalent ? Can the State
program be more stringent?
Are there authorization
provisions requiring the
States to adopt changes as
Federal regulations change?
States may establish [and
receive Federal funding for]
programs to prevent or
eliminate unreasonable risks
to health from toxic
chemicals. Such programs
complement but do not reduce
the authority of EPA.
EPA retains primary
authority to administer and
regulate PCB processing,
storage, and disposal and
TCDD disposal.
States may not promulgate any
rule concerning a toxic
chemical regulated under TSCA,
unless that rule is: (1)
identical to a Federal
requirement; (2) promulgated
under Clean Air Act or other
Federal law; (3) prohibits use
of such chemical; or (4) is
granted an exemption from EPA.
TSCA program only enforces
Federal laws.
N.A. [EPA retains primary
regulatory and enforcement
authority.]
States must adopt plan to
implement, maintain,
administer, and enforce
national primary and
secondary ambient air quality
standards. States may be
authorized to enforce
standards of performance for
new stationary sources, and
national emission standards
for hazardous air pollutants
(NESHAPs).
EPA retains authority to
develop air standards under
the act, to determine the
adequacy of State plans, and
to promulgate regulations
for a State that are
necessary to bring a State
plan into accordance with
the Act.
State must "adequately" enforce
national primary and secondary
ambient air quality standards
and follow the minimum
requirements for State programs
contained in 40 CFR Part 51,
unless EPA allows for a
temporary emergency suspension
of such standards. States
retain authority to adopt
emission standards and
limitations and control
strategies more stringent than
those necessary to meet minimal
Federal ambient standards.
EPA will notify State of
necessary revision. If State
fails to adopt revised plan
within designated period,
EPA will propose new
regulations for State.
B-7
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APPENDIX B
ONSHIPS UNDER MAJOR ENVIRONMENTAL STATUTES
(continued)
ACT TITLE
Does the statute allow for or
require Federally author!zed
State programs to carry out
provisions of the statute?
Which provisions remain
under exclusive Federal
jurisdiction?
For those provisions that are
authorized to the State, must
the State program be identical
or equivalent ? Can the State
program be more stringent?
Are there authorization
provisions requiring the
States to adopt changes as
Federal regulations change?
Some States have adopted
program to regulate toxic air
pollutants not regulated by
NESHAPS. These programs vary
from State to State.
The Act establishes no
requirements for those State
air toxic programs. EPA
provides technical
information to States
through the National Air
Toxics Information Clear-
inghouse (NATICH) and the
Control Technology Center.
Occupational Safety and
Health Act
Hazardous Materials
Transportation Act
State may assure
responsibility for developing
and enforcing OSHA standard
through Federally-approved
plan.
States may participate in the
enforcement of hazardous
waste regulations through the
Motor Carrier Safety
Assistance program. State has
some regulatory authority
over intrastate hazardous
waste transport [limited to
traffic control and
eliminating or reducing
safety hazards peculiar to
local areas].
Department of Labor may
retain authority to
promulgate and enforce OSHA
standards for at least first
three years of approved
State plan and until
Department of Labor
determines that OSHA
criteria are being
adequately enforced.
Department of Transportation
retains primary authority to
develop and enforce
hazardous waste
transportation regulations.
State standards must be "at
least as effective" in
providing safe and healthful
employment and places of
employment as Federal
standards.
State standards always must
be comparable to Federal
standards promulgated under
OSHA.
State laws concerning hazardous
waste transportation that are
inconsistent with Federal OSHA
requirements will be preempted
by Federal standards. Any state
may apply to have a State law
considered "consistent" or to
have an inconsistent law not be
preempted by Federal law.
B-S
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APPENDIX B
ONSHIPS UNDER MAJOR ENVIRONMENTAL STATUTES
(continued)
ACT TITLE
Does the statute allow for or
require Federally author!zed
State programs to carry out
provisions of the statute?
Which provisions remain
under exclusive Federal
jurisdiction?
For those provisions that are
authorized to the State, must
the State program be identical
or equivalent ? Can the State
program be more stringent?
Are there authorization
provisions requiring the
States to adopt changes as
Federal regulations change?
Farmland Protection Policy
Act
State is given no specific
authority to regulate Federal
program activities that may
affect preservation of
farmland. State may be
provided technical assistance
to develop programs or
policies to limit the
conversion of farmland to
nonagricultural uses.
Department of Agriculture
develops criteria for
identi fying the effects of
Federal programs on the
conversion of farmland to
nonagricultural uses.
These criteria should be
used by Federal agencies to
take into account adverse
effects of their programs on
preservation of farmland and
to consider alternative
action.
Flood Disaster Protection Act
Fish and Wildlife Improvement
Act
In order to be eligible for
Federal flood insurance
coverage, State must adopt
and enforce adequate land use
and control measures for
floodplains.
State has no explicit
authority. Fish and Wildlife
service may contract for
State assistance in enforcing
Federal laws under the Fish
and Wildlife Act.
Department of Housing and
Urban Development develops
the criteria by which the
adequacy of State programs
are judged.
Department of Interior
retains primary regulatory
and enforcement authority.
State land use and control
measures must be consistent
with Federal criteria (found in
24 CFR 1909-1910).
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United States
Environmental Protection
Agency
Center for Environmental Research Information
Cincinnati OH 45268
BULK RATE
POSTAGE & FEES PAID
EPA
PERMIT No. G-35
Official Business
Penalty for Private Use, $300
Please make all necessary changes on the above label,
detach or copy, and return to the address in the upper
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If you do not wish to receive these reports CHECK HERE G
detach, or copy this cover, and return to the address in the
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EPA/540/G-89/009
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