EPA/540/P-91/011
Publication 9360.3-02
August 1991
SUPERFUND REMOVAL PROCEDURES
GUIDANCE ON THE CONSIDERATION
OF ARARS DURING REMOVAL ACTIONS
Office of Emergency and Remedial Response
U.S. Environmental Protection Agency
Washington, DC 20460
Printed on Recycled Paper
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NOTICE
The policies and procedures set forth here are intended solely as 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. EPA officials may decide to follow this guidance or act at variance
with it, based on an analysis of specific site circumstances. The Agency also reserves the right to
change this guidance at any time without public notice.
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This document is part of a ten-volume series of guidance documents collectively titled the Superfund
Removal Procedures. These stand-alone volumes update and replace OS WER Directive 9360.0-3B,
the single-volume Superfund Removal Procedures manual issued in February 1988.
Each volume in the series is dedicated to a particular aspect of the removal process and includes a
volume-specific Table of Contents, Reference List, and Key Words Index. The series comprises the
following nine procedural volumes:
The Removal Response Decision: Site Discovery to Response Decision
Action Memorandum Guidance
Response Management: Removal Action Start-up to Close-out
Removal Enforcement Guidance for On-Scene Coordinators
Public Participation Guidance for On-Scene Coordinators: Community Relations
and the Administrative Record
Removal Response Reporting
Special Circumstances
Guidance on the Consideration of ARARs During Removal Actions
State Participation.
In addition, the series includes an Overview volume, containing a comprehensive Table of Contents,
List of Exhibits, Key Word Index, List of Acronyms, and Glossary, for use as a quick reference.
This document provides an overview of the procedures for identifying and evaluating Applicable or
Relevant and Appropriate Requirements (ARARs) and when the procedures should be followed in
the removal process. It also describes the steps involved in consideration of ARARs during removal
actions, such as identifying Federal ARARs; identifying and evaluating State ARARs (including key
communications with State officials); determining the extent to which compliance with a require-
ment is practicable (focusing on the two factors included in the National Oil and Hazardous
Substances Pollution Contingency Plan (NCP) for determining practicability and on Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended,
statutory waivers); and documenting ARARs analysis (including information to be included in the
Action Memorandum).
"Appendix A. References" provides a comprehensive list of supporting guidance documents that
may be consulted for additional information on relevant topics. Bracketed numbers [#] appear
throughout the text to indicate specific references in Appendix A which lists additional guidance on
particular topics. Consult the reference documents for a more detailed explanation of ARARs'
policies and procedures. In addition, an index of the key words used in this document appears in
Appendix B.
in
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CERCLA does not require removal actions to comply with ARARs of other environmental statutes.
However, the NCP requires on-site CERCLA removal actions to identify and comply with Federal
and State ARARs to the extent practicable, considering the urgency of the situation, and the scope
of the removal action to be taken.
Regardless of the nature of the removal action, On-Scene Coordinators (OSCs) should strive to
comply with those ARARs that are most crucial to the proper stabilization of the site and the
protection of public health and the environment. In the event that OSCs determine that compliance
with an ARAR is not practicable, however, removal actions must still be conducted in a manner that
prevents, minimizes, or mitigates damage to public health, welfare, and the environment.
Residential
Homes
(SDWA)
Land
Contamination
(RCRA)
Superfund Site
Wetlands
State ARAR
Surface Water
Contamination
(CWA)
Consideration of ARARs is an essential part of meeting NCP requirements.
IV
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CONTENTS
Introduction -j
Definition of ARARs 1
Types of ARARs 3
ARAR Attainment 3
Compliance with Substantive and Administrative Requirements 4
Identification of ARARs in the Removal Action Process 5
Emergency Removal Actions 5
Time-Critical Removal Actions 5
Non-time-Critical Removal Actions 6
Flexibility in the Timing of ARARs Identification Procedures 7
Identification of Potential Federal ARARs 10
Identification of Potential State ARARs 13
Overview of State ARARs 13
OSC Notification of the State , 13
State Responsibility 20
Evaluation of Potential State ARARs 20
Determining When Compliance with ARARs is not Required 22
NCP Factors for Determining Impracticability 22
CERCLA Statutory Waivers from Compliance with ARARs 24
Documenting ARAR Evaluations 26
Purpose of ARARs Documentation 26
Documenting ARARs in the Action Memorandum 26
Appendix A. References 30
Appendix B. Key Words Index 31
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EXHIBITS
Exhibit
Number
1 Comparison of On-Site and Off-Site Requirements 2
2 Identification and Evaluation of ARARs During Emergency
Removal Actions 6
3 Identification and Evaluation of ARARs During
Time-Critical Removal Actions ...8
4 Identification and Evaluation of ARARs During
Non-Time-Critical Removal Actions 9
5 Information Sources for Identification and Analysis of
Potential Federal ARARs 11
6 Procedures for Identifying State ARARs 14
7 Suggested Form Letter to Use When Requesting a State to
Identify Potential State ARARs 15
8 List of Information that State Officials May Request
in Identifying ARARs 21
9 Example ARARs Documentation for an Action Memorandum 28
VI
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INTRODUCTION
OSCs should select removal actions that meet the Applicable or Relevant and Appropriate
Requirements (ARARs) ofFederal andStateenvironmentallaws. This guidance presents information,
recommendations, and examples to aid OSCs in identifying potential Federal and State ARARs,
determining the extent to which compliance with ARARs is practicable, and documenting ARAR
evaluations.1 This guidance also may be used by potentially responsible parties (PRPs) when
potential ARARs are being assembled by the PRP. In these cases, the PRP is responsible for
requesting the potential Federal and State ARARs from EPA and States respectively. The lead
agency will determine the actual ARARs. Further information concerning PRP involvement in
removal actions may be obtained from the Removal Enforcement Guidance for On-Scene Coordinators
and the removal chapter of the Enforcement Project Management Handbook [4].2
In accordance with Section 300.415(i) of the NCP, on-site removal actions conducted under
CERCLA are required to attain ARARs to the extent practicable, considering the exigencies of the
situation. Off-site removal activities need only comply with all applicable Federal and State laws,
unless there is an emergency. According to the CERCLA off-site policy, hazardous substances that
are wastes from CERCLA removal actions may be transferred off-site only to facilities that: 1) are
operating in compliance with applicable Federal law and applicable State requirements; and 2) have
no releases of hazardous substances that are uncontrolled and are deemed "relevant." As shown in
Exhibit 1, there are on- and off-site ARARs which may or may not be applicable or relevant and
appropriate to a particular removal action.
Definition of ARARs
A requirement under other environmental laws may be either "applicable" or "relevant and
appropriate" to a removal action, but not both. OSCs should identify ARARs on a site-
specific basis by first, determining whether the given requirement is applicable and then, if
it is not applicable, determining whether it is relevant and appropriate for on-site activities.
Applicable requirements are cleanup standards, standards of control, and other
substantive requirements, criteria, or limitations promulgated under Federal
environmental or State environmental or facility siting laws that specifically address
a hazardous substance, pollutant, contaminant, remedial action, location or other
circumstances found at a CERCLA site.
1 The term "State ARARs" includes requirements of Indian Tribal laws that are ARARs.
2 The numbers in brackets refer to Appendix A, which provides complete references for the sources cited in the
text.
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INTRODUCTION AND PURPOSE
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INTRODUCTION AND PURPOSE
Relevant and appropriate requirements are cleanup standards, standards of control,
and other substantive requirements, criteria, or limitations promulgated under Federal
environmental or State environmental or facility siting laws that, while not "applicable"
to a hazardous substance, pollutant, or contaminant, remedial action, location, or
other circumstances at a CERCLA site, address problems or situations sufficiently
similar to those encountered at the CERCLA site and are well-suited to the particular
site.
Only those State standards that are identified by a State in a timely manner and are more
stringent than Federal requirements may be applicable or relevant and appropriate (see p. 13).
Types of ARARS
EPA recognizes the following three types of ARARs:3
Chemical-specific ARARs: Health or risk-based numeric values or
methodologies that establish the acceptable amount or concentration of a
chemical that may be found in or discharged to the ambient environment.
Location-specific ARARs: Restrictions placed on the concentration of
hazardous substances or the conduct of activities solely because they occur in
special locations.
Action-specific ARARs: Technology- or activity-based requirements or
limitations on actions involving the management of hazardous wastes.
Other Federal and State advisories, criteria, or guidance may, as appropriate, be considered
in formulation in the removal action. Other information To Be Considered (TBC) generally
falls within three categories: health effects information with a high degree of credibility;
technical information on how to perform or evaluate site investigations or response actions;
and policy.
ARAR Attainment
Requirements are ARARs only when they pertain to the specific activities being conducted.
The "applicability" determination is legally defined, and affords very little flexibility. The
"relevant and appropriate" determination is site-specific, and therefore has much greater
flexibility.
For example, if a site has leaking drums, widespread soil contamination, and
significant ground water contamination, the removal action on the site might only
involve actions necessary to reduce the near-term threats, such as direct contact and
further deterioration of the ground water; thus, the removal action might be limited
to the removal of the drums and surface debris and excavation of highly contaminated
soil. Accordingly, requirements pertaining to the drums, surface debris, or
3 Additional discussion of the three types of ARARs is found in the preamble to the 1990 NCP (55 Federal Register
8741 (March 8,1990)), in the preamble to the proposed NCP (53 Federal Register 51437 (December 21,1988)),
and the CERCLA Compliance with Other Laws Manual Part I, pp. 1-59 through 1-61, [1].
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INTRODUCTION AND PURPOSE
contaminated soil may be potential ARARs for the specific removal action; however,
requirements pertaining to the cleanup of ground water contamination would not be
ARARs for that action because the removal action is not intended to address ground
water.
Waivers are also available if the requirement is relevant and appropriate but cannot be met
for one of the reasons set out in CERCLA section 121(d)(4) (e.g., technically impracticable)
(seep.22). . , ,,
Compliance with Substantive and Administrative Requirements
On-siteresponseactionsmustcomply,totheextentpracticable,withsubstantiverequifements,
which may be applicable or relevant and appropriate. Off-site response actions must comply
with administrative and substantive requirements which may be applicable.
Substantive requirements are those requirements that pertain directly to
actions or conditions in the environment. Examples of substantive requirements
include quantitative health- or risk-based restrictions upon exposure to types
of hazardous substances, technology-based requirements, and restriction
upon activities in certain special locations. "
Administrative requirements are those mechanisms that facilitate the
implementation of the substantive requirements of a statute or regulation.
These requirements include documentation, issuance of permits, reporting,
and recordkeeping. .
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IDENTIFICATION OF ARARs IN THE
REMOVAL ACTION PROCESS
OSCs will need to identify and attain ARARs to the extent practicable for emergency, time-critical,
and non-time-critical removal actions. Exhibits 2,3, and 4 outline the general procedures that OSCs
should follow for these three types of removal actions although the actual timing and thoroughness
of the ARARs analysis may vary from removal action to removal action.
Emergency Removal Actions
For emergency removal actions, OS Cs should not delay response in order to identify potential
ARARs. Once immediate threats to human health and the environment have been averted
or obviated, however, OSCs should identify and consider ARARs for actions left to be
performed, using the processes detailed in Exhibit 2. For example, if, in a residential
neighborhood, there was a release of a hazardous substance that presented an immediate
threat to human health and the environment, it would be appropriate to store the substance
temporarily in a secured environment away from the residential area before identifying and
considering ARARs for future actions. In an emergency, the OSC is not expected to
determine, for example, if the hazardous substance is a hazardous waste under the Resource
Conservation and Recovery Act (RCRA) and to identify which requirements apply to the
management of the waste until after mitigating all immediate threats associated with the
incident. However, those determinations should be made before arranging for permanent
disposal.
Time-Critical Removal Actions
For time-critical removal actions, the urgency of the situation will determine how quickly and
thoroughly OSCs identify and analyze potential ARARs. OSCs may identify ARARs at
several different stages of the process due to the need for quick response, and may alter the
selected response action to comply with newly identified ARARs as the removal action
progresses. Exhibit 3 presents the ARARs identification and evaluation process typically
followed in a time-critical removal action. In the most urgent time-critical removal actions,
OSCs could identify ARARs concurrently with the initiation of site cleanup. In these
situations, OSCs should attain and comply with requirements determined to be ARARs to the
extent practicable (see discussion on determining when compliance with ARARs is not
required, p. 22); identify additional ARARs; and prepare the Action Memorandum after
preventing, stabilizing, or mitigating near-term threats.
During most time-critical removal actions, OSCs should identify potential ARARs during
the site evaluation phase and assess them in developing possible responses before initiating
any response actions. OSCs should document these ARARs in the Action Memorandum. As
OSCs modify planned cleanup activities based on public comments or other circumstances,
they also should identify and, to the extent practicable, comply with new ARARs for the
modified actions (especially action-specific ARARs).
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ARARs IN THE REMOVAL ACTION PROCESS
Non-Time-Critical Removal Actions
Following the procedures described in Exhibit 4, if practicable, OSCs should comply with
more ARARs for non-time-critical removal actions than for time-critical removal actions. In
particular, preparing the Engineering Evaluation and Cost Analysis (EE/CA) should allow
EXHIBIT 2. IDENTIFICATION AND EVALUATION OF ARARS DURING
EMERGENCY REMOVAL ACTIONS
REMOVAL PROCESS STAGE
Mitigate
Immediate
Threats
Selection of
Any Additional
Response Action
I
Action
Memorandum
Complete
Any Additional
Actions
ARARS ACTIVITY
If feasible, given the urgency
of the situation, identify site
characteristics that might
give rise to ARARs
For any actions taken after
immediate threats are
mitigated, identify ARARs
and determine if compliance
is practicable
Document in Action
Memorandum all ARARs
with which compliance is
practicable and whether
statutory waivers apply
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ARARs IN THE REMOVAL ACTION PROCESS
OSCs to more fully consider ARARs in the development of response actions. During non-
time-critical removal actions, sufficient time should be available for OSCs to ensure that
ARARs determinations are based upon a reasonable understanding of site characteristics.
Flexibility in the Timing of ARARs Identification Procedures
The time when ARARs must be identified in the cleanup process may vary from site to site,
depending on the urgency of the situation. The NCP requires OSCs to identify ARARs for
pn-site removal actions v/henpracticable. This consideration is crucial and is discussed later
in this guidance (see p. 22). OSCs should not delay taking actions to mitigate an immediate
threat, stabilize a site, or prevent a release in order to allow time to gather detailed information
on site characteristics, draft a written ARARs request to the State, or wait for State agencies
to submit a list of ARARs.
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ARARs IN THE REMOVAL ACTION PROCESS
EXHIBITS. IDENTIFICATION AND EVALUATION OF ARARS DURING
TIME-CRITICAL REMOVAL ACTIONS
REMOVAL PROCESS STAGE
Selection of
Response
Action
Action
Memorandum
Public
Comment
Period, as
Appropriate*
Perform
Action
ARARS ACTIVITY
To the extent practicable, identify site
characteristics that might give rise to
ARARs; identify potential chemical-
and location-specific ARARs
As potential actions are developed,
identify potential action-specific
ARARs and, based on site
circumstances, determine practica-
bility of complying with ARARs
Make final determination of action-
specific ARARs; document in Action
Memorandum all ARARs with which
compliance is practicable and
whether statutory waivers apply
If Action Memorandum is modified as
a result of comments or other
circumstances, identify new ARARs
and reevaluate practicability of
ARARs compliance; revise Action
Memorandum and response action
accordingly
* In general, a public comment period will be
considered appropriate if:
Cleanup activity has not been completed at the
time the record file is made available to the public, and
Public comments might have an impact on future action
at the site.
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ARARs IN THE REMOVAL ACTION PROCESS
EXHIBIT 4. IDENTIFICATION AND EVALUATION OF ARARS DURING
NON-TIME-CRITICAL REMOVAL ACTIONS
REMOVAL PROCESS STAGE
Engineering
Evaluation/
Cost Analysis
I
Public
Comment
Period
1
Selection of
Response
Action
T
Action
Memorandum
Perform
Action
ARARS ACTIVITY
Identify site characteristics that might
give rise to ARARs; identify potential
chemical- and location-specific
ARARs
As potential actions are evaluated,
identify potential action-specific
ARARs; determine how compliance
with ARARs would affect cost and
duration of action
If action plan is modified as a result
of comments or other circumstances,
identfy new ARARs and reevaluate
practicability of ARARs compliance
Based on site circumstances,
determine practicability of compliance
with ARARs
Make final determination of
action-specific ARARs; document in
Action Memorandum all ARARs with
which compliance is practicable and
whether statutory waivers apply
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IDENTIFICATION OF POTENTIAL FEDERAL ARARs
Within thelimitations discussed above, it is the responsibility of the OSC to identify potential Federal
ARARs and to determine which ones are actually ARARs for a given removal action, based on both
knowledge of Federal environmental requirements and on the use of the following aids:
The CERCLA Compliance with Other Laws Manual: In particular, the OSC should
consult Exhibits 1-1,1-2,1-3, and 1-9 of the manual. These exhibits lists potential
chemical-, location-, and action-specific ARARs under major Federal environmental
statutes [1]. (The manual is available from the Oil and Hazardous Materials (OHM)
Coordinator.)
Regional Sunerfund ARARs Coordinators: The OSC should contact designated
ARARs experts who are responsible for giving assistance to OSCs and Remedial
Project Managers on ARARs issues. OSCs also can contact experts from the
Regional Air, Waste, or Water Management Divisions to gather additional infor-
mation on those areas.
National Environmental Regulation Hotlines: OSCs can get additional information
on the requirements of various Federal statutes from several national hotlines listed
in Exhibit 5, as well as from the Emergency Response Cleanup Services and
Technical Assistance Team contractors.
If OSCs need more assistance to identify ARARs for removal actions, or to determine their
practicability once identified, they should consult with the appropriate Regional Coordinator in the
Emergency Response Division (ERD) at EPA Headquarters. Other useful sources of information are
the Office of Regional Counsel/Office of General Counsel and the Policy and Analysis Staff of the
Office of Emergency and Remedial Response (OERR).
10
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POTENTIAL FEDERAL ARARs
EXHIBIT 5. INFORMATION SOURCES FOR IDENTIFICATION AND ANALYSIS
OF POTENTIAL FEDERAL ARARS
INFORMATION SOURCE
National Hotlines
Agency for Toxic Substances and Disease
Registry Hotline
RCRA/Superfund Hotline
Safe Drinking Water Act Hotline
Toxic Substances Control Act Hotline
Other Resources
Air/Superfund Coordinators in each Regional Office
Clean Air Act issues, OAQPS
National Institute for Occupational Safety and Health
National Pesticides Telecommunications Network
OERR Policy and Analysis Staff ARARs Section Chief
OSWER Clu-In (an on-line information service)
Superfund ARARs Coordinators in each Regional Office
TELEPHONE NUMBER
(404) 488-4100
(703) 920-9810 (Virginia)
(800) 424-9346 (outside Virginia)
(800) 553-7672 (Toll-free TDD)
(703) 486-3323 (Local TDD)
(800) 426-4791 (National)
(202) 554-1404
(919) 541-5642
(513) 841-4422
(800) 858-7378
(202) 260-2200
(301) 589-8366
11
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POTENTIAL FEDERAL ARARs
EXHIBIT 5(2). INFORMATION SOURCES FOR IDENTIFICATION AND
ANALYSIS OF POTENTIAL FEDERAL ARARS
INFORMATION SOURCE TELEPHONE NUMBER
Technical Assistance Team (TAT) Contractors (as of 7/91)
Zoncl (Eastern)-RoyF.Weston,Inc. (215) 524-1925
Zone 2 (Western) - Ecology and Environment, Inc. (703) 522-6065
In addition, TAT contractors can be reached by telephone in all 10 Regions
Emergency Resnonse Cleanup Services (F.RCS") Contractors (as of 7/91)
Zone 1 (Regions 1-3) - OH Materials (800) 327-2853
Zone 2 (Region 4) - OH Materials (800)327-9954
ZoneS (Region 5) - PEI Associates (800) 372-3727
Zone4A (Regions 6-9) - Riedel Environmental (800) 334-0004
Zone4B (Region 10) - Thorne Environmental, Inc. (206)525-9168
12
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IDENTIFICATION OF POTENTIAL STATE ARARs
Overview of State ARARs
EPA's policy regarding the attainment of State ARARs for removal actions is the same as its
policy concerning compliance with Federal ARARs: removal actions should comply with
State ARARs to the extent practicable. In order for State requirements to be potential
ARARs, they must be:
(1) Promulgated (i.e., of general applicability and legally enforceable),
(2) More stringent than Federal requirements,
(3) Identified in a timely manner.
To facilitate the identification process, the OSC must, to the extent practicable, inform the
State that EPA is considering a removal action, provide information about the site, and
request that the State identify potential ARARs for that action. Only those potential ARARs
identified by the State in a timely manner need to be considered. Exhibit 6 summarizes this
consultation process.
OSC Notification of the State
Oral Notification
As soon as EPA begins to consider taking a removal action or after an emergency removal
action begins, the OSC should orally inform the State about the action. At the time of this
notification, the OSC also should request that the State identify potential State ARARs for
that removal action, characterizing the level of urgency of the removal action and the length
of time in which ARARs will need to be identified if the OSC is to consider them in
performing the action.
Written Notification
The OSC should, as soon as practicable, follow up the initial notification with a written
request to the State to identify potential ARARs. Exhibit 7 contains a suggested form letter
for OS Cs to use in making this written request. OS Cs should request that S tates send ARARs
information in written form using Attachments 1-3 in a timely manner.
Providing Site Information to the State
When notifying the State of a potential removal action, OSCs should provide as much
information as possible about the site. Detailed knowledge of site characteristics greatly
facilitates ARARs identification. If the OSC does not describe the location of the site, the
kind of wastes at the site, the threat(s) affecting this removal action, and the possible activities
that might occur during the removal action, the State may not be able to produce an accurate
13
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POTENTIAL STATE ARARs
EXHIBIT 6. PROCEDURES FOR IDENTIFYING STATE ARARS
REMOVAL ACTION IS CONTEMPLATED OR EMERGENCY
RESPONSE INITIATED
Notify State representative of potential removal action and
request initial identification of State ARARs
*
WRITTEN REQUEST IS SENT TO STATE
Send State a letter requesting a written list of potential
ARARs; indicate when response is needed (This step may
occur after mitigation of immediate threats in an emergency
situation)
i
SITE CONDITIONS AND POTENTIAL ACTIONS BECOME
KNOWN
Provide State with information on site location, site
contaminants, contaminated media, threat, and potential
removal actions as this information becomes known
*
POTENTIAL STATE ARARS LIST IS RECEIVED
Determine which listed State requirements are actually
ARARs for the site; determine whether compliance is
practicable
14
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POTENTIAL STATE ARARs
EXHIBIT 7. SUGGESTED FORM LETTER TO USE WHEN REQUESTING
A STATE TO IDENTIFY POTENTIAL STATE ARARS
Dear fState Official]:
As the State has been informed, the Superfund removal program of the Environmental Protection
Agency (EPA) is contemplating a removal action at the [site name] located in Fsite location]. To perform
this action, EPA will attempt to comply to the extent practicable with all Applicable or Relevant and
Appropriate Requirements (ARARs) of State environmental and facility siting laws. This letter is a
follow-up to our earlier request that the State notify the EPA On-Scene Coordinator (OSC) of any
State statutes or regulations that the State believes are potential ARARs for the removal site, and
contains information on site conditions and proposed actions to assist you in identifying
ARARs. The OSC for this site is FOSC name].
We request that an appropriate State official identify potential State ARARs in the attachments
provided. These attachments are divided into three sections addressing the following categories:
chemical-, location-, and action-specific requirements. Chemical-specific requirements are
health-, technology-, or risk-based numeric values that establish the acceptable amount or
concentration of a chemical that may be found in, or discharged to, the ambient environment.
Location-specific requirements are restrictions placed on the concentration of hazardous substances
or the conduct of activities solely because they occur in special locations. For example, the
requirement that hazardous waste storage facilities located within 100-year flood plains must be
designed, constructed, operated, and maintained to avoid washout is considered a location-specific
requirement. Action-specific requirements are technology-oractivity-based requirements orlimitations
on actions taken with respect to hazardous waste.
[Example -- Site Description: There are an estimated 200 drums on the surface and an
additional 100 drums buried at the site of an abandoned chemical recycling facility. Sampling
of the surface drums has identified various solvents including xylene, hexane, methylene
chloride, and toluene. Approximately 250 homes are located within 1/4 mile of the site, all of
which rely on well water for drinking water purposes. Run-off from the site enters a culvert
which drains into a nearby tributary of Green Creek. The site poses threats of exposure by
direct contact (a deteriorating wooden fence separates the site from adjacent properties),
inhalation, and drinking water contamination. Proposed actions include reconstruction of
the fence surrounding the site, stabilization and overpacking of drums (following excavation
of buried drums), and transportation of the drums to RCRA-approved recycling and disposal
facilities.]
Please respond in a timely manner (within 7 days if possible) so that the requirements may be
considered for the removal action. Exact references or citation to the statutes and regulations, or
copies of pertinent provisions of these State requirements, will greatly facilitate our ability to evaluate
these requirements as ARARs for the site. Also, please call the OSC at FOSC's telephone number],
if additional information on the site is needed for the purpose of completing the attachments.
15
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POTENTIAL STATE ARARs
EXHIBIT 7(2).
SUGGESTED FORM LETTER TO USE WHEN
REQUESTING
The OSC will examine these requirements in order to determine whether they are applicable or
relevant and appropriate to the site. The Superfund removal program is required to comply with
ARARs to the extent practicable, considering the exigencies of the situation. It is important to
clarify, however, that some requirements identified by the State may be determined not to be
ARARs or may be determined to be impracticable to meet or may qualify for a waiver.
(Signed)
Branch Chief (or designee)
Attachments
16
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ATTACHMENT!. CHEMICAL-SPECIFIC REQUIREMENTS
Chemical
Maximum
Concentration
Allowed
Medium
Reason why Requirement
is an ARAR
Regulatory
Citation
(to be filled out by State Official)
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POTENTIAL STATE ARARs
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ATTACHMENT 3. ACTION-SPECIFIC REQUIREMENTS
Action Subject
to Requirement
Requirement
Reason why Requirement
is an ARAR
Regulatory
Citation
(to be filled out by a State official)
o
O
m
H
1
m
30
(A
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POTENTIAL STATE ARARs
or useful list of potential ARARs for the site. Under these conditions, the State may only be
able to produce either a generic list of environmental requirements that will be too lengthy
and general to be useful, or a narrow list of requirements that might not cover all aspects of
a site.
Information that OSCs should be prepared to provide to, State personnel is detailed in
Exhibit 8. This list includes data on the location of the site, wastes discovered on site,
contaminated media/threat(s) (using NCP removal criteria), and potential removal actions.
The more clearly and succinctly the OSC presents this information, the easier it will be for
State personnel to provide an accurate list of potential ARARs in a timely manner. If the OSC
does not have time to produce a written summary of site conditions for the State, he or she
should send whatever pertinent information is available on the site.
If more information about site characteristics relevant to ARARs determination is gathered,
the OSC should relay this information to the State representative. For example, if sampling
or site records reveal that soil at a site contains a RCRA listed waste, the OSC should
communicate this to the State representative so that all potential ARARs can be identified
before actions to remove or treat the soil begin.
State Responsibility
NCP section 300.400(g) stipulates that once the OSC provides information on the site and
requests that the State identify ARARs, it is the State's responsibility to identify in a timely
manner all State requirements that are potential ARARs for the removal action. If the State
does not provide a complete or clear list of requirements or does not respond in a timely
manner, it is not the OSC's responsibility to search for State ARARs. The removal program
is a dynamic program designed to prevent, stabilize, and/or mitigate environmental and
human health threats quickly, and the OS C need not: 1) expend resources examining volumes
of State regulations; or 2) delay the start or completion of a removal action because the State
has not identified its ARARs.
Evaluation of Potential State ARARs
Once the State has identified environmental requirements that may be ARARs, it is the OSC's
responsibility to determine which State requirements actually are ARARs by using the
procedures outlined in NCP sections 300.400(g) and 300.415(i), as well as those in the
CERCLA Compliance with Other Laws Manual [1]. The subsequent determination
regarding which ARARs can be practicably met should be made using the factors detailed
in this guidance. The OSC is not bound to comply with all requirements identified by the
State; tliis should be made clear in communications with State officials.
If there are any questions concerning identification of ARARs or the practicability of
complying with an ARAR, State officials should consult with the staff and management of
EPA Regional offices to promptly address them. Although OSCs shall coordinate with
States, OSCs make the final determination of ARARs for all Fund-financed and EPA-ordered
removal actions.
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POTENTIAL STATE ARARs
EXHIBIT 8. LIST OF INFORMATION THAT STATE OFFICIALS MAY
REQUEST IN IDENTIFYING ARARS
1. General description of site.
2. Specific location of site.
3. Known,wastes or hazardous substances on site (including concentrations,
if available).
4. Site's proximity to the following settings:
an aquifer used as a public or private water supply
a floodplain
wetlands
streams or rivers
a critical habitat of endangered or threatened species
a designated coastal zone or other specified preserve
a wildlife refuge, public park or recreation area, public forest, or
public monument
a salt dome formation, underground mine, or cave
a historic site or cultural resource, whether or not owned or
controlled by a Federal Agency.
5. Media contaminated by the site and potential exposure pathways/threat
(using NCP removal criteria).
6. Potential actions at the site (e.g., discharge of treatment effluent to a surface
water body, off-site disposal of hazardous waste, incineration).
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DETERMINING WHEN COMPLIANCE WITH
ARARs IS NOT REQUIRED
In general, compliance with most Federal and State ARARs will be practicable during removal
actions. As noted in the NCP, however, in some situations, identifying and/or complying with
ARARs will not be practicable during a removal action, or the criteria for a waiver of the ARAR will
be satisfied. Under such circumstances, compliance with the ARAR is not required.
In determining whether compliance with ARARs is practicable, OSCs must consider the urgency or
degree of threat posed by the site and the appropriate scope of response. Full compliance with
ARARs will most often be practicable at National Priorities List (NPL) sites where an exemption to
the statutory time and dollar limits is available based on the "consistency" exemption, e.g., remedial
action is expected to be taken at the site [2].
NCP Factors for Determining Impracticability
The NCP identifies two factors that should be considered in determining whether identifying
and complying with ARARs is practicable:
(1) The urgency of the situation, and
(2) The scope of the removal action to be taken.
Urgency of the Situation
During most removal actions, sufficient time exists for OSCs to identify ARARs and plan
response actions that comply with them. For example, in most cases, OSCs can acquire
drums, tanks, and overpacks, and construct storage facilities that meet basic RCRA storage
requirements before RCRA hazardous waste is removed from leaky tanks or soil is excavated
and stored.
In cases where the degree of threat warrants a truly immediate response, full identification
or compliance with ARARs could cause OSCs to delay a response, compromising the
protection of public health and the environment. In such urgent cases, compliance with
ARARs would not be practicable. Examples of situations in which identifying and
complying with ARARs may not be practicable because of the urgency of the situation are
provided below.
Case I: When an imminent threat to public health and the environment requires
immediate action before the OSC can request and obtain potential State
ARARs.
Example: If a spill of a hazardous waste occurs on a site in the vicinity
of a residential area, it would not be practicable for OSCs to request and
obtain potential State ARARs (such as the siting requirements for a
storage facility) before the waste is transported to another area safely
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COMPLIANCE NOT REQUIRED
away the residential zone. (It still may be practicable, however, to
identify and comply with State ARARs for any subsequent removal
activity addressing less immediate threats to be taken at the site.)
Case II: When damage or threats to public health and the environment require
EPA to take immediate action precluding compliance with known
Federal ARARs.
Example: If leaking drums on a site pose the danger of fire or explosion,
waste should be stabilized and stored immediately in available tanks or
containers, even if these tanks or containers do not have the secondary
containment systems required by RCRA.
Scope of the Removal Action
Actions required by ARARs often will be within the scope of the designed removal action.
For example, when a removal action calls for treatment of aqueous material from an on-site
sludge pit and discharge of the treatment effluent to an on-site stream, compliance with
substantive National Pollutant Discharge Elimination System (NPDES) discharge limits
would be within the scope of the designed action and, therefore, would be practicable.
Similarly, when a removal action calls for the on-site incineration of waste, compliance with
incinerator operation and performance standards under RCRA and/or the Toxic Substances
Control Act (TSCA) are necessary and likely to be practicable. However, in some cases,
compliance with ARARs is outside the scope of the removal action because the ARAR
requires a degree of cleanup that would be inappropriate or inconsistent with the limited
scope and purpose of the removal action, e.g., site stabilization and mitigation of near-term
threats.
"Scope of the removal action" is not limited to technical issues but also relates to limitations
on duration and funding. During most removal actions, compliance with ARARs should not
result in expenditures of funds and time that exceed CERCLA statutory limits for removal
actions. In fact, since removal actions generally focus on minimizing and mitigating potential
harm (although in some cases they may be used to totally eliminate a threat), most removal
actions do not approach the statutory limits. For example, the purchase or rental of storage
tanks with secondary containment systems in compliance with RCRA requirements is not
likely to raise the cost of a removal action above $2 million. In some cases, however, the cost
and duration of cleaning up a site in compliance with ARARs will exceed these limits. In
these cases, exemption criteria must be met and the exemption must be invoked to proceed
with the action as a removal, or a determination should be made that compliance with the
ARAR is not practicable.4
EPA will select the appropriate response, even where an extensive removal action is
warranted, whether the site is Fund-lead or PRP-based. If the site is Fund-lead, an exemption
must first be approved in order to proceed with the action. EPA expects that the time and
dollar limitations generaly will not result in PRPs performing a more extensive removal
See also related discussion in the preamble to the NCP (55 Federal Register 8695-96).
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COMPLIANCE NOT REQUIRED
action than EPA itself would conduct. That is, EPA's selection of a removal action, including
which ARARs will be attained, will generally not differ depending on who will be conducting
the removal action.
Situations in which it may not be practicable to comply with an ARAR because it would be
outside the scope of the removal action include the following:
Case I: When compliance involves a degree of cleanup that would be inconsistent
with the purpose of the removal action.
Example: If a removal action is undertaken for the limited purpose of
stabilizing volatile waste in a lagoon atasite, itwouldbeoutside the scope
of the removal action to meetRCRA closure requirements for the lagoon
and other units at the site.
Case II: When compliance with ARARs would result in EPA performing a
removal action with a duration of longer than one year and no statutory
exemption applies.
Example: A non-NPLsite contains large quantities of contaminated soil
subject to a State toxic waste disposal regulation requiring incineration
of the soil prior to permanent disposal. The level of soil contamination
does not warrant an emergency (or consistency) exemptionfrom the one-
year statutory limit. If the limited capacity of available incinerators would
result in the incineration process taking over two years, and other
treatment technologies are available that achieve an acceptable level of
performance, compliance with the State requirement may not be
practicable.
CERCLA Statutory Waivers from Compliance with ARARs
Even if compliance with an ARAR is determined to be practicable based on consideration of
the two factors listed previously (i.e., urgency of the situation and scope of the removal
action), waivers may still apply to the removal action. CERCLA section 121 (d)(4) provides
that under certain circumstances, an otherwise applicable or relevant and appropriate
requirement may be waived during on-site CERCLA remedial actions. NCP section
300.415(i) extends these waivers to removal actions as well. The application of these
statutory waivers to a removal action is described briefly below.
Interim Measures: Compliance with an ARAR is not necessary when the
removal action does not involve final cleanup of a site and the final cleanup
will attain the ARAR. For example, complying with the RCRA land disposal
restriction storage prohibition at a non-NPL site may be inappropriate if the
waste is drummed and overpacked, and future site actions will involve
treatment of the waste that will comply with all land disposal restrictions.
Compliance will Result in Greater Risk to Human Health and the Environment:
A removal action does not have to comply with ARARs when compliance
would present a greater threat (or provide less protection) to human health and
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COMPLIANCE NOT REQUIRED
the environment than taking an action that would not attain ARARs. For
example, complying with the RCRA requirement for permeability of caps
may be inappropriate if it may result in a dangerous buildup of gases under
the cap at a site. Therefore requirements with this ARAR would not be
necessary at this site.
Technical Impracticability: Compliance with ARARs is not necessary when
it would be technically impractical or infeasible from an engineering
perspective, such as when a State surface water discharge standard requires
treatment of some wastewater contaminants to below non-detectable levels.
Equivalent Standard of Performance: Compliance with an ARAR is not
necessary if the removal action would achieve a standard of performance that
is equivalent to that required by the ARAR. For example, a State toxic
substances clean-up law that requires the use of a particular technology to
treat contaminated soil could be waived if a removal action uses another
treatment technology that would provide an equivalent degree of treatment.
However, a technology-based standard may not be replaced by a risk-based
analysis.5
Inconsistent Application: An otherwise applicable or relevant and appropriate
State requirement is not an ARAR and need not be attained when that
requirement has not been applied consistently to hazardous waste sites or
facilities throughout the State (CERCLA as well as non-CERCLA sites). For
example, at a battery recycling site, EPA waived a State requirement for
leachate testing and management of lead-contaminated waste when EPA
determined that the State was not enforcing the same requirement at State
cleanup sites.
Fund Balancing: Fund balancing is not a requirement of the removal
program. However, when complying with an ARAR requires an expenditure
that jeopardizes the Fund's ability to address other sites, the ARAR can be
waived. The Fund-balancing waiver should be considered, but not necessarily
invoked, only for unusual, very costly cases. The NCP preamble states that
the Fund-balancing waiver should be routinely considered when the cost of
attaining the ARAR for a single action would be four times the current average
cost of a remedial operable unit.6 Given the statutory limits on removal
actions, this waiver will apply rarely at removal sites. It is more likely that
compliance with an excessively expensive ARAR for a removal action would
be determined to be beyond the limited scope of the action, and, therefore,
compliance is not required.
5 The preamble to the 1990 NCP (55 Federal Register 8748) discusses related topics in more detail.
6 55 Federal Register 8750 (March 8,1990).
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DOCUMENTING ARAR EVALUATIONS
Purpose of ARARs Documentation
To ensure that ARARs have been identified and considered to the extent practicable during
a removal action, it is important to document all procedures associated with identifying and
evaluating ARARs. Sufficient documentation of ARARs identification procedures and
ARARs evaluations is essential to:
Assure the public and State and local agencies that ARARs were complied
with to the extent practicable, and that the remedy is protective of human
health and the environment.
Make the public aware, through the administrative record, of all ARARs
determinations and confirm to the public that all ARARs were met to the
extent practicable.
Provide justification, for the purposes of cost recovery from PRPs, for actions
taken at the site.
Documenting ARARs in the Action Memorandum
The OSC should document the identification and evaluation of ARARs in the Action
Memorandum, the key document supporting the selection of a removal action. Generally,
it will not be necessary to document requirements determined not to be ARARs (.unless me
determination is expected to be controversial). However, the OSC should document, if only
briefly, the conclusion that compliance with identified ARARs is determined to be
impracticable, based on the two factors for determining practicability: the urgency ot the
situation and the scope of the removal action. The Action Memorandum should contain the
following information concerning ARARs:
A list of Federal ARARs identified for the site that are deemed practicable,
if any.
An explanation, if necessary, that Federal ARARs were not considered before
removal activities were undertaken during emergency situations.
A brief description of efforts made to identify State ARARs that includes an
indication of whether there was time to assess identified State ARARs.
A list of State ARARs determined to be practicable, if any.
A list of Federal and State standards determined to be ARARS, but for which
compliance was determined to be impracticable.
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DOCUMENTING ARARs EVALUATION
The OSC should provide this information in the "Proposed Actions and Estimated Costs"
section of the Action Memorandum under the heading "ARARs." See the Action
Memorandum Guidance for more detail on where the OSC should provide ARARs
information in the Action Memorandum.
If the OS C prepares a new Action Memorandum to document a significant change in the scope
of removal work or to request an exemption from statutory funding or time limits, then the
ARARs information noted above also should be presented in the revised Action Memorandum.
An example ARARs discussion for the Action Memorandum is presented in Exhibit 9. In
addition, the "Effectiveness of Removal Actions Taken" section of the final OSC report
should refer to the ARARs information previously listed in the Action Memorandum.
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DOCUMENTING ARARs EVALUATIONS
EXHIBIT 9. EXAMPLE ARARS DOCUMENTATION FOR ACTION
MEMORANDUM
The Action Memorandum is the most appropriate place to document ARARs
determinations. In particular, this memorandum should document procedures used
to identify ARARs and detail which Federal and State requirements were determined
to be practicable. It should briefly explain by referring to the two factors for
determining practicability (i.e., urgency of the situation, and scope of the removal
action) why compliance with certain Federal and/or State ARARs was determined
not to be practicable. The OSC should provide this information in the "Proposed
Actions and Estimated Costs" section of the Action Memorandum under the heading
"ARARs." More information is provided in the "Action Memorandum Guidance."
Compliance with Applicable or Relevant and Appropriate RequirementsExample
Discussion
Potential Federal ARARs for the removal action at the Pleasant Harbor Oil Recycling
Company site in Any State, U.S.A. were identified with the help of Region 11
representatives of the Office of Solid Waste, the Office of Water, the Office of Air
Quality Planning and Standards, and the Office of Toxic Substances. The OSC
communicated with these offices on February 12,15,16, and 17,199x, respectively.
Based on these communications, the following were identified as practicable Federal
ARARs for the site:
RCRA Subtitle C (40 CFR 264 Subpart J) requirements for storage of
a RCRA hazardous waste (KO52 - Petroleum refining industry tank
bottoms) in a tank with secondary containment
TSCA requirements for storage of PCBs
TSCA requirements to incinerate PCB-contaminated waste at a
TSCA-permitted incinerator
Clean Water Act section 404 requirements for dredging a Federally
designated wetland.
The following administrative and substantive requirements were determined to be
applicable to off-site actions:
RCRA and DOT requirements for transportation of a hazardous waste
(manifest requirements, storage, and labeling of waste).
The following was identified as a requirement to be considered (TBC) for the site:
TSCA PCB Spill Policy requirements for cleanup of PCB-
contaminated soil in a residential area
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DOCUMENTING ARARs EVALUATION
EXHIBIT 9(2). EXAMPLE ARARS DOCUMENTATION FOR ACTION
MEMORANDUM
The OSC informed Any State Department of Environmental Resources (ADER)
officials on February 7, 199x, that the performance of a CERCLA-funded removal
action was being contemplated and requested them to identify potential State ARARs
for the site. The OSC, through discussions with the Office of Water, determined that
the State has been delegated the NPDES authorities. On February 8,199x, the OSC
followed-up this request in a letter to the ADER. On February 17, 199x, the OSC
received a list of potential ARARs from the ADER. The following State ARAR was
determined to be practicable for the site:
AnyState surface water direct discharge effluent limitations for
wastewater treatment effluent contaminated with lead, zinc, and
arsenic.
The ARAR identified above was considered in the selection of a response action. The
selected response action includes: excavation of all soil contaminated by PCBs at a
level above 10 ppm in area 1 and transportation of contaminated soil to a TSCA-
permitted incinerator; removal of drummed electroplating waste from area 2 and
disposal in a RCRA-permitted landfill meeting RCRA minimum technology
requirements; treatment and discharge of on-site lagoon liquids into the XYZ stream,
which is considered part of the site; and dredging of an on-site wetland to remove
PCB-contaminated sediments (above 10 ppm) in accordance with U.S. Army Corps
of Engineers regulations. This action complies with the ARAR identified above.
Compliance with AnyS tate antidegradation requirements and AnyS tate ground water
clean-up standards was determined to be impracticable because these requirements
were outside the scope of the removal action.
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APPENDIX A. REFERENCES
Guidance
[I] OSWERDir. 9234.1-01 and 9234.1-02, CERCLA Compliance with Other Laws Manual: Parts
I and II (August 1988 and August 1989 respectively)
[2] OSWER Dir. 9360.12A, "Guidance on Implementation of the Revised Statutory Limits on
Removal Actions" (June 12,1989)
[3] OSWER Dir. 9834.11, "Revised Procedures for Implementing Off-site Response Actions"
(November 13,1987)
[4] OSWER Dir. 9837.2A, Enforcement Project Management Handbook (January 1991)
Statutes and Regulations
The Comprehensive Environmental Response, Compensation, andLiabilityActof 1980 (CERCLA),
as amended, 42 USC Sections 9601-9675
The National Oil and Hazardous Substances Pollution Contingency Plan, 55 Federal Register
8666-8865 (March 8,1990)
7 Bracketed numbers appear throughout the text and correspond to the references listed in this appendix. These
references may be consulted for additional information on ARARs.
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APPENDIX B. KEY WORDS INDEX
Action Memorandum 26
ARARs
Chemical-specific 3; 17
Location-specific ........3, 18
Action-specific 2' in
T-, , , * ->5 J--7
Federal 10
state !!!"!!""!!"""!!!!!!!!!!!"!!!!!!!"!!!! is
Documentation 26 28
Identification (of ARARs 10, 13
National Contingency Plan (NCP) iii, i
Notification 13
Removal Actions
Emergency 5 g
Time-critical ...."!.!.!.!!."..!s' 8
Non-time-critical ".'.'.'.".""6 9
Scope of the Removal Action 22
State (Responsibility/role) 20
Urgency 22
Waivers (ARARs) 24
31 'U.S. Government Printing Office: 1991 548-187/40604
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