OCLC25532704
EPA Publication
9347.3-15
DOE Publication
OEG (CERCLA)-005/1091
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            I ENVIRONMENTAL GUIDANCE  I
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         Compendium  of  CERCLA
  ARARs   Fact  Sheets  and  Directives
                              J ENVIRONMENTAL GUIDANCE
                             Compendium of CERCLA
                           ARARs Fact Sheets and Directives
                                Published jointly by:
                              US tPA        U S UOE
                          Office ol bmergency and Rcmedal Response CMcp ul tiwonmei'a! Guiderrr
                                 OCTOBER 1991
                    Published jointly by:


             U.S. EPA                        U.S. DOE
 Office of Emergency and Remedial Response    Office of Environmental Guidance
                     OCTOBER  1991
 SSBSSS
                          U.S. Environmental no«^
                          Region 5, Library (PL-12J)
                          77 West Jackson Boulevard, I2tn Floor
                          Chicago, II 60604-3590

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                                 Introduction

      Section 121 (d) of the Comprehensive Environmental Response Compensation
and Liability Act (CERCLA) as amended by the Superfund Amendments and
Reauthorization Act of 1986 (SARA), requires attainment of Federal and State
applicable and relevant and appropriate requirements (ARARs). Subpart E, Section
300.400(g) "Identification of applicable or relevant and appropriate requirements" of
the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) (55 CFR
8666, March 8, 1990) describes the process for attaining ARARs.

      The purpose of this compendium is to provide you with a complete and current
source of "Quick Reference Fact Sheets" and Directives on applicable and relevant and
appropriate requirements (ARARs).  These fact sheets, prepared by the Environmental
Protection Agency's (EPA) Office of Solid Waste and Emergency Response, provide
overviews of the ARARs for CERCLA cleanup actions.

      The Department or Energy and the EPA prepared this compendium of EPA
"Quick Reference Fact Sheets" and Directives on ARARs. This compilation is provided
as general guidance for complying with the Federal requirements on ARARs.1

      The Compendium of CERCLA ARARs consists of seven (7) chapters: Chapter I,
"Introduction," lists general fact sheets that provide introductory information on
ARARs; Chapter II, "Air," discusses air emissions from Superfund air strippers;
Chapter HI, "Indian Tribal ARARs," deals with Indian Tribal involvement in the
Superfund program; Chapter IV, "Lead," discusses soil lead cleanup levels at Superfund
sites; Chapter V, "Risk Assessment," discusses the risk associated with Superfund
cleanups; Chapter VI, "RCRA ARARs," contains four sections that discuss a variety of
RCRA ARARs such as general guidance topics, land disposal restrictions, Superfund
LDR guides, and toxicity characteristics; and finally, Chapter VII, "Water" contains a
variety of ARAR fact sheets and directives on Wastewater, Safe Drinking Water Act
and Groundwater.
1 This compendium supersedes the July 1990, "Catalog of CERCLA Applicable or Relevant and
Appropriate Requirements (ARARs) - Fact Sheets," DOE-EGD (CERCLA)-002/0790.

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                      TABLE OF CONTENTS
I. INTRODUCTION

  A. Overview

     1.    CERCLA Compliance with Other Laws Manual,
          Guide to Manual; 9234.2-02/FS, September 1989

     2.    CERCLA Compliance with Other Laws Manual, Overview of
          ARARs Focus on ARARs Waivers; OSWER 9234.2-03/FS,
          December 1989

     3.    ARARs Q'and A's: General Policy, RCRA, CWA, SDWA,
          Post-ROD Information, and Contingent Waivers;
          9234.2-01/FS-A, June 1991

     4.    CERCLA Compliance with Other Laws Manual, Summary of
          Part II CAA, TSCA, and Other Statutes;
          OSWER 9234.2-07/FS, April 1990

     5.    ARARs Q's and A's Fund Balancing Waiver; OSWER 9234.2-
          13/FS, January  1991

     6.    A Guide to Selecting Superfund Remedial Actions; OSWER
          9355.0-27/FS, April 1990

  B. State and Local Requirements

     7.    CERCLA Compliance with Other Laws Manual, CERCLA
          Compliance with State Requirements; OSWER 9234.2-05/FS,
          December 1989

     8.    State and Local Involvement in the Superfund Program;
          OSWER 9375.5-01/FS, Fall 1989

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II. AIR
     9.    Control of Air Emissions from Superfund Air Strippers
           at Superfund Groundwater Sites; OSWER 9355.0-28,
           June 15, 1989
III. INDIAN TRIBAL ARARs

     10.   Indian Tribal Involvement in the Superfund Program;
           OSWER 9375.5-02/FS, Fall 1989
IV. LEAD

     11.   Interim Guidance on Establishing Soil Lead Cleanup
           Levels at Superfund Sites; OSWER 9355.4-02,
           September 7, 1989
V. RISK ASSESSMENT

      12.   Risk Assessment Guidance for Superfund: Volume I —
           Human Health Evaluation Manual; OSWER 9285.7-
           01/FS, April 1990

      13.   Role of the Baseline Risk Assessment in Superfund Remedy
           Selection Decisions; OSWER 9355.0-30, April 22, 1991

VI. RCRA

    A. Guidance Topics

      14.   Interim RCRA/CERCLA Guidance on Non-Contiguous
           Sites and On-Site Management of Waste and Treatment
           Residue; OSWER 9347.0-1, March 27, 1986

      15.   A Guide to Delisting of RCRA Wastes for Superfund
           Remedial Responses; OSWER 9347.3-09/FS,
           September 1990

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   16.   CERCLA Compliance with Other Laws Manual, RCRA
        ARARs: Focus on Closure Requirements; OSWER
        9234.2-04/FS, October 1989

   17.   Consideration of RCRA Requirements in Performing
        CERCLA Responses at Mining Waste Sites; OSWER
        9234.0-4; August 19, 1986
B. Land Disposal Restriction

   18.   Policy for Superfund Compliance with the RCRA Land
        Disposal Restrictions; OSWER 9347.1-02, April 17, 1989

   19.   Regional ARARs and LDR [Land Disposal Restriction]
        Contacts; OSWER 9234.1-03, March  1988

   20.   Land Disposal Restrictions as Relevant and Appropriate
        Requirements for CERCLA Contaminated Soil and Debris;
        OSWER 9347.2-01, June 5, 1989

   21.   Applicability of Land Disposal Restrictions to RCRA and
        CERCLA Ground Water Treatment Reinjection, Superfund
        Management Review: Recommendation No. 26; OSWER
        9234.1-06, December 27, 1989
C. Superfund LDR Guides

   22.   Superfund Land Disposal Restriction Guide #1, Overview of
        RCRA Land Disposal Restrictions (LDRs); OSWER 9347.3-
        01/FS, July  1989

   23.   Superfund Land Disposal Restriction Guide #2, Complying
        with California List Restrictions Under Land Disposal
        Restrictions (LDRs);  OSWER 9347.3-02/FS, July 1989

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  24.   Superfund Land Disposal Restriction Guide #3, Treatment
        Standards and Minimum Technology Requirements Under
        Land Disposal Restrictions (LDRs); OSWER 9347.3-03/FS,
        July 1989

  25.   Superfund Land Disposal Restriction Guide #4, Complying
        with the Hammer Restrictions Under Land Disposal
        Restrictions (LDRs); OSWER 9347.3-04/FS, July 1989

  26.   Superfund Land Disposal Restriction Guide #5, Determining
        When Land Disposal Restrictions (LDRs) are Applicable to
        CERCLA Response Actions; OSWER 9347.3-05/FS, July
        1989

  27.   Superfund Land Disposal Restriction Guide #6A (2nd
        Edition), Obtaining a Soil and Debris Treatability Variance
        for Remedial Actions; OSWER 9347.3-06/FS, September
        1990

  28.   Superfund Land Disposal Restriction Guide #6B, Obtaining a
        Soil and Debris Treatability Variance for Removal Actions;
        OSWER 9347.3-06B/FS, September 1990

  29.   Superfund Land Disposal Restriction Guide #1, Determining
        When Land Disposal Restrictions (LDRs) are Relevant and
        Appropriate to CERCLA Response Actions; OSWER 9347.3-
        08/FS, December 1989

  30.   Superfund Land Disposal Restriction Guide #8, Compliance
        with Third Third Requirements Under Land Disposal
        Restrictions; 9347.3-08/FS, October 1990
D. Toxicity Characteristics

   31.   ARARs Q's & A's Compliance with Toxicity Characteristics,
        Part I; OSWER 9234.2-08/FS, May 1990

   32.   CERCLA Compliance with RCRA Toxicity Characteristics,
        Part II; OSWER 9347.3-11/FS, October 1990

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VII. WATER
     33.  CERCLA Compliance with Other Laws Manual, CERCLA
          Compliance with CWA and SDWA; OSWER 9234.2-06/FS,
          February 1990

     34.  Discharge of Wastewater from CERCLA Sites into POTWs;
          OSWER 9330.2-4, April 15, 1986

     35.  ARARs Q's and A's: Compliance with Federal Water
          Quality Criteria; OSWER 9234.2-09/FS, June 1990

     36.  ARARs Q's and A's: State Ground-Water Antidegradation
          Issues; OSWER 9234.2-11/FS, July 1990

     37.  ARARs Q's and A's Compliance with New SDWA National
          Primary Drinking  Water Regulations for Organic and
          Inorganic Chemicals; OSWER 9234.2-15/FS, August 1991

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CERCLA Compliance with Other Laws Manual
            Guide to Manual

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                            Un'rtod State*
                            Environmental Protection
                            Agency
Office 01
Solid Waste and
Emergency Response
Directrve 9234.2-O2FS
September 1989
                            CERCLA Compliance with Other Laws  Manual

                            GUIDE  TO  MANUAL
 The  1986 Superfund Amendments and Reauthorization Act (SARA)  adopts and expands a provision in the 1985
 National Contingency Plan (NCP) that remedial actions must at least  attain applicable or relevant and appropriate
 requirements (ARARs).  Section 121(d) of CERCLA, as amended by SARA, requires attainment of Federal ARARs
 and of State ARARs in State environmental or facility siting laws when  the State requirements are promulgated, more
 stringent than Federal laws, and identified by the State in a timely manner.  Under EPA regulation and policy, removal
 actions  must  comply with ARARs to the extent practicable.

 To implement the ARARs provision, EPA has developed guidance, CERCLA Compliance with Other Laws Manual:
 Parts I and II (OSWER Directives 9234.1-01 and 9234.1-02, respectively). EPA is preparing a series of short fact sheets
 that summarize the guidance document (OSWER Directives 9234.2 series). This Fact Sheet provides a guide to the
 compliance manual. The compliance manual is based on policies set forth in the proposed December 21, 1988 revisions
 to the NCP.  The final NCP may adopt policies different from those covered here and should, when promulgated, be
 considered the authoritative source.
 I.    PURPOSE OF MANUAL

      The  CERCLA  Compliance  with  Other  Laws
 Manual is  intended to assist in the identification and
 evaluation of ARARs for removal and remedial actions.
 The manual  provides  guidance  to  Remedial Project
 Managers, On-Scene Coordinators, State personnel, and
 others responsible for or assisting in response actions
 under  sections  104, 106,  and 122 of CERCLA.   The
 manual is also intended to assist in the  selection of on-
 site  remedial actions  that  meet the ARARs of the
 Resource Conservation and Recovery Act (RCRA), the
 Clean Water Act (CWA), the Safe Drinking Water Act
 (SDWA),  the  Clean  Air   Act (CAA),  the  Toxic
 Substances  Control Act (TSCA), the Federal Insecticide,
 Fungicide,  and  Rodenticide  Act (FIFRA), and other
 Federal and State environmental laws, as required by
 CERCLA section  121.   In general, different ARARs for
 a  sue and its  remedial  action will be  identified at
 various points  in  the remedy selection  process.

 II.    DEFINITIONS OF ARARS

     A requirement under  other environmental  laws
 may be either "applicable" or "relevant and appropriate,"
 but not both.  Identification  of ARARs must be  done
 on a site-specific basis  and involves a two-part analysis:
 first, a determination of whether a given requirement is
 applicable;  then, if it is not applicable, a determination
of  whether u  is  nevertheless both  relevant   and
appropriate.
  DEFINITIONS:

  • Applicable  requirements  are  those  cleanup
    standards, standards  of control, and  other
    substantive   environmental   protection
    requirements,   criteria,   or   limitations
    promulgated under Federal or State law that
    specifically address  a  hazardous  substance,
    pollutant,  contaminant,   remedial   action,
    location, or other circumstance at a CERCLA
    site,

  • Relevant and  appropriate requirements  are
    those same standards mentioned above that
    while not "applicable" at the  CERCLA site,
    address   problems  or situations sufficiently
    similar to those  encountered at  the site that
    their use is well  suited to the  particular site.
  On-site actions are required to comply with ARARs,
but must comply only with the substantive parts of an
applicable or relevant  and appropriate  requirement.
Off-site actions must comply only with legally applicable
requirements,  but  must  comply  fully  with   both
substantive and  administrative requirements.
                                                                                     Printed on Recycled Paper

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III.  CONTENTS OF MANUAL

     Part I describes general procedures for identifying
ARARs and complying with ARARs in  RCRA, CWA,
SDWA, and ground-water policies.  Part I is organized
as follows:

   •  Chapter 1, General Procedures  for  CERCLA
     Compliance with Other  Statutes  -  defines  the
     terms "applicable" and "relevant and appropriate,"
     describes general procedures for identifying and
     analyzing  requirements,  identifies waivers from
     ARARs, and  provides matrices listing types  of
     potential ARARs from RCRA, CWA and SDWA

   •  Chapter 2, Guidance for CERCLA  Compliance
     with RCRA -  discusses RCRA  hazardous waste
     requirements and policies for determining when
     RCRA requirements are ARARs for  CERCLA
     actions, including what actions at a CERCLA site
     constitute "disposal,' as defined  by RCRA.

   •  Chapter 3, Guidance for Compliance with  Clean
     Water Act  Requirements -  provides guidance for
     compliance with CWA substantive requirements
     for direct  discharges, indirect  discharges, and
     dredge-and-fill activities.

   •  Chapter  4,   Guidance  for  Compliance  with
     Requirements of the Safe Drinking  Water Act -
     provides guidance  for compliance with SDWA
     requirements  that   may  be  ARARs,  including
     drinking water standards and the requirements for
     underground   injection    control,  sole-source
     aquifers, and the wellhead  protection program.

   •  Chapter 5, Ground Water  Protection  Policies -
     discusses  ground-water  classification,  provides
     guidance on consistency with policies for ground-
     water  protection,   and includes a  hypothetical
     scenario for illustrating how ARARs are identified
     and used.

   •  Appendix A provides an overview of  the  major
     environmental statutes and regulations  covered in
     Part 1.

Part  1! of the manual describes general  procedures for
comphing with ARARs  m CAA, TSCA, FIFRA, other
resource protection  statutes, mining waste  statutes, and
State ARARS   Pan II is organized as follows

   •  Chapter 1, Introduction and Overview  - provides
     an  introduction and overview  of  Part II of the
     guidance   manual   and   includes   matrices  of
     potential ARARs covered in Part II
• Chapter 2,  Clean  Air Act  Requirements  and
  Related RCRA and State Requirements - provides
  guidance for compliance with CAA requirements
  (including  the  National Ambient Air Quality
  Standards, the National Emissions Standards for
  Hazardous  Air Pollutants,  and the New Source
  Performance Standards) and  related  RCRA and
  State requirements  for air emissions.

• Chapter 3, Standards for Toxics and Pesticides -
  provides guidance for compliance with statutes
  (i.e.,  TSCA  and  FTFRA)   that  address  toxic
  substances (particularly PCBs) and pesticides.

• Chapter 4, Other Resource Protection Statutes -
  provides guidance  for compliance  with  other
  resource  protection  statutes,   including   the
  National   Historic    Preservation   Act,    the
  Archeological and Historic Preservation Act, the
  Endangered  Species Act, the Wild  and Scenic
  Rivers Act,  the  Fish and Wildlife Coordination
  Act, the Coastal Zone Management Act, and the
  Wilderness Act.

• Chapter 5, Standards, Advisories, and Guidance
  for the Management  of Radioactive Waste
  discusses potential ARARs and potentially useful
  guidance   for   cleaning   up   radioactively
  contaminated  sites  and  buildings.  Major  acts
  discussed  include  the Uranium  Mill  Tailings
  Radiation Control Act, the Atomic Energy  Act,
  the Nuclear Waste  Polio,' Act,  CAA,  and  CWA.

• Chapter 6,  Potential ARARs  For  CERCLA
  Actions at  Mining, Milling,  or Smelting Sites -
  provides guidance for compliance with statutes
  incorporating  standards  for  mining,  milling,  or
  smelting sites,  including  the  Surface  Mining
  Control and Reclamation Act and RCRA

• Chapter 7,  CERCLA Compliance   with State
  Requirements discusses eligibility requirements for
  State programs,  specific types of State laws (e g.,
  siting   requirements),  and   procedures   for
  communicating State ARARs

• Appendix A provides guidance for compliance with
  CAA Part  C requirements under the  Prevention
  of Significant  Deterioration  program

• Appendix B describes  Federal/State relationships
  under  major   Federal environmental  statutes,
  including whether  the statute allows for State
  authorization  of the  program  and whether the
  State provisions  are  identical or more  stringent
  than the Federal requirements

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CERCLA Compliance With Other Laws Manual
           Overview of ARARs
         Focus of ARARs Waivers

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      &EPA
                            United States
                            Environmental Protection
                            Agency
                            Office of
                            Solid Waste and
                            Emergency Response
Publication 9234.2-03/FS

December 1989
CERCLA Compliance With Other Laws Manual
Overview   of  ARARs
Focus  on  ARAR  Waivers
Office of Emergency and Remedial Response
Office of Program Management OS-240
                                                       Quick Reference Fact Sheet
     The Superfund Amendments and Reauthorization Act of 1986 (SARA) adopts and expands a provision in the 1985
 National Contingency Plan (NCP)  that remedial actions must at least attain applicable or  relevant and appropriate
 requirements (ARARs). Section 121(d) of CERCLA, as amended by SARA, requires attainment of Federal ARARs and
 of State ARARs in  State  environmental or facility siting laws  when such requirements are promulgated, are more
 stringent than Federal laws, and are identified by the State in a timely manner.

     To implement the ARARs provision, EPA has developed guidance, CERCLA Compliance With Other Laws Manual:
 Parts  I and II (OSWER Directives 9234.1-01  and  9234.1-02).   EPA is preparing a series  of short fact sheets  that
 summarize these guidance documents.  This fact sheet summarizes Chapter 1 of Part I, which provides an overview of
 ARARs.  The material covered here is based on policies in the  proposed revisions to the NCP.  The final  NCP  may
 adopt policies different from those covered here and should, when promulgated, be considered the authoritative source.
                                     I. OVERVIEW OF ARARS
 A.  Statutory Provisions

     CERCLA section 121(d)(2) states that for wastes left
 on-site, remedial actions must comply with Federal and
 State environmental laws that are legally applicable or are
 relevant and appropriate under the circumstances of the
 release.  This section, in effect, codified and expanded on
 the 1985  NCP, which required compliance  with Federal
 applicable or  relevant and appropriate  requirements
 (ARARs), a  provision adopted to make use  of  other
 programs' or  agencies' standards.

     In addition, CERCLA requires Superfund  remedial
 actions to comply with State  environmental or facility
 siting  laws provided that the State  requirements: (1) are
 promulgated;  (2) are more stringent than Federal laws;
 and (3) are identified by the State in a timely manner.
 CERCLA section   121(d)  also mentions  two criteria
 specifically  --  Maximum  Contaminant  Level  Goals
 (MCLGs) developed under  the Safe Drinking Water Act
 (SDWA), and  Water Quality Criteria  (WQC) developed
 under  the Clean Water Act (CWA) - and  requires that
 they be attained when they are relevant  and appropriate
 (compliance with these criteria is discussed  in a separate
 fact sheet). CERCLA also specifies six circumstances in
 which  ARARs can be waived.  The ARAR  waivers are
 discussed in Part II  of this  fact sheet.
                          B.   Compliance with ARARs for Removal Actions

                               Although  CERCLA  requires  compliance  with
                          ARARs for  remedial  actions only, the current  NCP
                          requires that removal actions also comply with Federal
                          ARARs, to the extent practicable.  Furthermore,  EPA
                          policy under the proposed NCP requires  that removal
                          actions comply with both State and Federal ARARs to
                          the extent practicable.  Until this policy is promulgated
                          by regulation, however, compliance with State ARARs
                          during  removal actions must be justified based upon
                          protectiveness.

                               Factors used  in  determining whether  removal
                          compliance with ARARs is practicable  include:  (1) the
                          urgency  of  the situation;  and  (2)  the  scope  of  the
                          removal action   to  be  conducted,  which   includes
                          consideration of the statutory limits for removal actions.
                          An  example of a  situation where  compliance  with
                          ARARs is not practicable for a removal action would be
                          a site  where emergency  conditions  call  for  a rapid
                          response, thereby  preventing  the on-scene coordinator
                          from  identifying and attaining ARARs.  An ARAR that
                          is beyond the scope of a removal to remediate top-level
                          soil contamination  due to leaking drums might  be one
                          that applies to lower-level soil remediation. Of course,
                          such  a standard  may still be an ARAR  for any remedial
                          action that  is subsequently taken at the site.
                                                      Printed on Recycled Paper

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C.   Definitions of AHARs and TRCs

     In the proposed revisions to the NCP (53 FR 51394),
EPA clarified the definitions of "applicable" and "relevant
and appropriate"-requirements (see Highlight 1).
            Highlight 1: DEFINITION OF
        "APPLICABLE" AND "RELEVANT AND
          APPROPRIATE" REQUIREMENTS

  Applicable requirements are defined as "cleanup
  standards, standards of control, and other
  substantive  environmental protection  requirements,
  criteria, or limitations promulgated under Federal or
  State law that specifically address a hazardous
  substance, pollutant, contaminant, remedial  action,
  location, or other circumstance at a CERCLA site."

  Relevant and appropriate requirements are  defined
  as "substantive environmental protection
  requirements ... promulgated under Federal  or State
  law  that, while not "applicable", ... address problems
  or situations sufficiently similar to those
  encountered at the CERCLA site that their use is
  well suited  to the particular site."
     1.   Applicable Requirements

     An applicable requirement directly and fully addresses
the situation at  the site.  In other words, an applicable
requirement is a substantive requirement  that a private
party would be subject to if it were undertaking the action
independently from  any  CERCLA  authority.    For a
requirement   to  be   applicable,   all  jurisdictional
prerequisites of  the requirement must be met, including:
(1) the party subject  to the law; (2) the substances or
activities that fall under the  authority of the law; (3)  the
time period during which the law is in effect; and (4)  the
types of activities the statute  or regulation requires, limits,
or prohibits.

     2.   Relevant and Appropriate Requirements

     While a determination of applicability is primarily a
legal one,  a determination of whether a requirement is
relevant and appropriate is  site-specific and is based on
best professional judgment,  taking  into  account  the
circumstances of the release or threatened release. This
determination should   be   made  in conjunction with
pertinent national policies.

     There is more flexibility and discretion in making
relevant   and   appropriate   determinations   than   in
determining  the  applicability  of a  requirement.   Only
those requirements thai are both relevant and appropriate
are ARARs.  A requirement may be  relevant, but  not
appropriate,  because of the site circumstances.  Such a
requirement would  not  be  an  ARAR  for  the site.
Moreover,  it  is  possible  for only  a  portion  of  a
requirement to be considered  relevant  and appropriate,
while other parts may not. However, once a requirement
(or part of a requirement) is  found to be  relevant and
appropriate, it  must be complied with to the same degree
as if it were applicable.

     In determining whether a  requirement  is both
relevant and appropriate to  the  circumstances of  the
release, the following comparisons should be made:

•    The purpose of the requirement and the purpose of
     the CERCLA  action;

•    The   medium  regulated  or  affected   by  the
     requirement and  the  medium  contaminated  or
     affected at the CERCLA site;

•    The substances regulated by the  requirement and
     the substances found at  the  CERCLA site;

•    The   actions   or   activities  regulated   by  the
     requirement and the remedial action  contemplated
     at the CERCLA site;

•    Any  variances, waivers, or exemptions  of  the
     requirement and theii availability  for use given the
     circumstances at the CERCLA site;

•    The type of place regulated  and the  type  of place
     affected by the CERCLA site or CERCLA action;

•    The  type and size of  the  structure or facility
     regulated and  the type and size of the structure or
     facility affected by the release or  contemplated by
     the CERCLA  action; and

•    Any  consideration of the use or  potential use of
     affected resources in the requirement and the use
     or potential use  of the affected  resource at  the
     CERCLA site.

A similarity to any one  factor is not necessarily sufficient
to  determine   that  a   requirement  is   relevant and
appropriate. Nor does a  requirement have to be similar
to the  site situation with  respect to each factor  in order
for it to be  relevant and  appropriate.

     3.  TBCs

     By definition,  ARARs arc promulgated, or  legally
enforceable  Federal and State requirements.  (Because
CERCLA  identifies them  as potentially  relevant and
appropriate, MCLGs and WQC are considered potential
ARARs, even  though they are not otherwise enforceable
standards.)  EPA has also developed another category of
requirements,  known as "to be considered"  (TBCs), that
includes nonpromulgated criteria, advisories, guidance,

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and  proposed  standards  issued  by Federal  or  State
governments.   TBCs are not  potential  ARARs because
they are neither promulgated nor enforceable. It may be
necessary to consult TBCs to interpret ARARs, or to
determine preliminary remediation goals when  ARARs
do not  exist  for  particular  contaminants.   However,
identification and compliance with TBCs is not mandatory
in the same way that it is for  ARARs.

D.  Types of ARARs

     EPA has  divided ARARs into three categories to
facilitate their identification:

•    Chemical-specific ARARs are usually health- or risk-
     based numerical values or methodologies  used to
     determine  acceptable concentrations  of chemicals
     that  may  be  found  in  or  discharged  to  the
     environment,  e.g., MCLs that establish safe  levels in
     drinking water.

•    Location-specific ARARs restrict actions or
     contaminant concentrations in certain environmentally
     sensitive areas.  Examples of areas  regulated under
     various Federal  laws include  floodplains, wetlands,
     and locations where endangered species or historically
     significant cultural resources are present.

•    Action-specific ARARs are usually technology-  or
     activity-based  requirements or limitations on actions
     or conditions  involving specific substances.

     Chemical- and location-specific ARARs are identified
early in the process, generally during the site investigation,
while action-specific ARARs are usually identified during
the Feasibility Study (FS)  in  the detailed  analysis  of
alternatives.

E.   Compliance with ARARs for On-site and  Off-site
    Actions

    The ARARs  provision in CERCLA addresses only
on-site actions (see Highlight 2 for definition of  on-site).
In addition, section 121(e) exempts on-site actions  from
having  to obtain  Federal, State,  and local   permits.
Consequently,  the requirements  under CERCLA for
compliance with other laws differ for on-site  and off-site
actions, as follows:

•   On-site actions  must comply  with applicable and
    relevant and   appropriate  requirements, but  need
    comply only  with  the substantive  parts of those
    requirements.

•   Off-site actions must comply only with requirements
    that are legally  applicable, but must comply  with
    both substantive and administrative parts  of those
    requirements.
(See Highlight 3  for  definitions  of "substantive"  and
"administrative".)  Compliance with "relevant and appro-
priate" requirements is not required for off-site actions.
      Highlight 2:  DEFINITION OF "ON-SITE"

      "On-site" is defined in the proposed revisions
  to the NCP as the "areal extent of contamination
  and all suitable areas in very close proximity to the
  contamination necessary for implementation of the
  response action."  See 53 FR 51477 (December 21,
  1988).  "Areal extent of contamination" refers to
  both surface area, ground water beneath the site,
  and air above the site.  Examples of on-site
  contamination and treatment units or staging areas
  separate from (but in "very close proximity to") the
  contamination include:

  •   A disposal  site for treated wastes in a new
     landfill outside, but in close proximity to, a
     contaminated wetland;

  •   A point-source discharge into a river running
     through a site.  The discharge point would be
     considered on-site, even if the discharge effluent
     ultimately runs off-site. The action would have
     to meet discharge limitations and monitoring
     requirements, but would not require an  NPDES
     permit; and

  •   A pump-and-treat system located in the
     contamination plume several miles  downgradient
     of the source.  The  ground-water treatment
     system  is considered on-site.
   Highlight 3:  DEFINITIONS OF SUBSTANTIVE
     AND ADMINISTRATIVE REQUIREMENTS

 •   Substantive requirements are those
     requirements that pertain directly to actions or
     conditions in the environment.  Examples
     include quantitative health or risk-based
     standards for certain hazardous  substances (e.g.,
     MCLs for drinking water),  and technology-
     based standards (e.g., RCRA minimum
     technology requirements for double liners and
     leachate collection systems).

 •   Administrative requirements  are those
     mechanisms that facilitate the implementation
     of the substantive requirements  of a statute or
     regulation (e.g., requirements  related  to the
     approval of or consultation with administrative
     bodies, documentation, permit issuances,
     reporting, recordkeeping, and enforcement).

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F.  ARARs Documentation

    ARARs considered  for  each  alternative in  the
detailed analysis of alternatives should be documented in
detail  in  the  Remedial  Investigation/Feasibility  Study
(RI/FS).   The  Proposed  Plan  and  the  ROD should
summarize  how the components of an alternative will
comply with major ARARs, and should describe why the
requirement is applicable  or relevant and appropriate.
The  ROD  should document ARARs as  follows:   (1)
major ARARs should be discussed in the Description of
Alternatives; (2) ARAR compliance should be summarized
in the Summary of the Comparative Analysis; and (3) all
ARARs selected  for the remedy  should  be listed and
briefly described in the Statutory Determinations section.

    When an alternative is chosen that does not attain an
ARAR, the basis  for waiving the  requirement must be
fully documented and explained.  TBCs referred to in the
ROD should be listed and described briefly, as well  as
the reasons for their use.  Generally, there is no need to
document why a requirement is not an ARAR, although
documentation should be provided  for both ARARs and
TBCs when the  determination has  been difficult or
controversial.  (See Guidance on  Preparing Superfund
Documents.  [ROD  Guidance]  EPA-540/G-89/007, July
1989,  and   Guidance  for Conducting RI/FSs  Under
CERCLA, EPA 540/G-89/004, October 1988, for further
information.)
G.   Policy  on   Newly  Promulgated   Requirements
     "Freezing" ARARs at the ROD

     If  a requirement that would be  applicable or
relevant  and appropriate  to the  remedial  action  is
promulgated after  the  Record  of Decision (ROD)  is
signed  and the ARARs for the selected remedy have
already been established, the remedy will be evaluated in
light of the new requirement to ensure that the remedy
is still protective.

     To the extent that the remedy remains protective in
light of any new information reflected in the requirement,
the original  ARARs  remain "frozen" at the ROD and
nothing more  needs  to be  done.   However,  if it  is
determined that the new  requirement must  be met in
order for the remedy  to be protective, the remedy must
be  modified  to  attain  the requirement through  an
Explanation  of Significant Differences (ESD) or ROD
amendment.   For  example,  a new requirement for  a
chemical at a site may indicate, through new scientific
information on which  it was based, that the cleanup level
selected for the chemical corresponds to a cancer risk of
10"2 rather than 10~5, as originally thought. The original
remedy would have to be reevaluated in terms of the new
requirement  because it may  no longer be protective.
                                 H.  FOCUS ON ARAR WAIVERS
    CERCLA section 121(d) provides that, under certain
circumstances,  an  ARAR may be  waived.   The six
statutory waivers are provided in Highlight Box 4 and are
discussed more fully below. These waivers may not be
used for off-site actions.
     Highlight 4: STATUTORY ARAR WAIVERS

  The six ARAR waivers provided by CERCLA are:

  1. Interim Measures Waiver,

  2. Equivalent Standard of Performance Waiver,

  3. Greater Risk to Health and the Environment
    Waiver;

  4. Technical Impracticability Waiver,

  5. Inconsistent Application of State Standard
    Waiver; and

  6. Fund-Balancing Waiver.
     The Interim Measure waiver may be used when an
interim  measure that does not  attain  all ARARs  is
expected to be followed by a complete measure that will
attain all ARARs (see Highl'ght Box 5 for an  example).
The  interim   measure should  not  cause   additional
migration of contaminants, complicate the site response,
or present an immediate threat to public health or the
environment, and must not interfere with or delay the
        Highlight 5: EXAMPLE OF INTERIM
               MEASURES WAIVER

     At a mining site, interim measures were used to
  address drainage of contaminated water from a
  mine.  The action involved passive treatment of
  mine tunnel discharges through construction of an
  artificial wetland, which would reduce
  contamination from the mine tunnel to the level of
  contamination present upstream.  Since the
  discharge exceeded State ambient water quality
  standards for the stream,  the standards were waived
  until the final remedy was implemented, which
  would address in-stream contamination.

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final  remedy.   It  should be  noted,  however, that  if a
requirement relates  to  some  portion  of the long-range
site cleanup that is  outside the scope of the immediate
remedial action, it is not an ARAR  for this action and
a waiver is unnecessary.

     The Equivalent  Standard of Performance waiver may
be used in situations where an ARAR stipulates use of a
particular design or operating standard, but equivalent or
better remedial  results  could  be  achieved  using  an
alternative design or method of operation.   In  invoking
this waiver, the alternative should be equal to or greater
than the ARAR in terms of:  (1) the degree of protection
afforded; (2)  the level of performance achieved; and (3)
the potential to be  protective  in  the  future.  The time
required to achieve beneficial results using the alternative
should  be considered;  however,  the duration  of the
alternative should be balanced  against  other  beneficial
factors that may ensue from  using the alternative.  A
technology-based requirement  must be evaluated from a
technology performance  perspective,  not from a  risk
perspective.

     The Greater Risk  to Health and the Environment
waiver is available for situations where compliance with an
ARAR will cause  greater risk to human health and the
environment than  noncompliance.  The more significant
the risks,  the longer they are in duration, and the more
irreversible the harm from compliance with an ARAR, the
more appropriate the use of this waiver (see Highlight 6
for an example).
     Highlight 6: EXAMPLE OF GREATER RISK
  TO HEALTH AND THE ENVIRONMENT WAIVER

     A pump-and-treat system may be selected to
  remove ground water contamination from landfill
  releases.  Analysis found that natural flushing
  through the landfill, after excavation of the highly
  contaminated waste, would facilitate cleanup of the
  ground water and remove residual contamination
  from the landfill.   The waiver for greater risk was
  used to waive the applicable RCRA closure
  requirement for an impermeable cap, because such a
  cap would prevent natural flushing and would
  significantly delay and reduce the effectiveness of
  the ground water  cleanup, and therefore the
  remedial  action's effectiveness in reducing risk.
     The Technical Impracticability waiver may be used
when compliance with an ARAR  is technically impract-
icable from  an engineering perspective.  The waiver can
be used if either of two criteria are met: (1) engineering
feasibility, in which current engineering methods necessary
to construct and maintain an alternative that will meet the
ARAR cannot reasonably be implemented; and (2) reli-
ability,  in  which  the potential  for  the alternative  to
continue to  be protective into the future is low, either
because  the  continued  reliability  of  technical  and
institutional controls is doubtful, or because of inordinate
maintenance costs.  Use of the waiver may consider cost,
although  cost  should  not  be the  major  factor  (sec
Highlight 7  for an example).
       Highlight 7:  EXAMPLE OF TECHNICAL
            IMPRACTICABILITY  WAIVER

     Ground water located in bedrock fractures and
  deep bedrock contained highly contaminated
  pockets of liquid waste along the fractures.  MCLs
  were waived because their attainment was
  technically impracticable for several reasons,
  including: (1) difficulty in predicting the extent
  and location of fractures; (2) the inability to locate
  and extract all pockets of liquid waste;  (3) excessive
  time frames for cleanup; and (4) the irregular
  nature of the fractures that made effective
  placement of extraction wells difficult.
    The Inconsistent  Application  of State  Standard
waiver may be invoked when evidence exists that demon-
strates that a State standard has not been or will not be
consistently  applied to other remedial sites within the
State, including both NPL and non-NPL sites.  A waiver
may be used, for example, for a State-standard" that was-
promulgated but never applied, or for a standard that has
been variably applied or  enforced.   A State standard  is
presumed to have been consistently applied unless there
is evidence to the contrary.

    The Fund-Balancing waiver may be invoked when
meeting an ARAR would entail such cost in relation to
the added  degree of protection  or reduction of  risk
afforded by that standard that remedial actions at other
sites would  be jeopardized.  This  waiver should  be
considered when the cost of attaining an ARAR is 20%
of the annual remedial action budget or SlOO million,
whichever is greater (see  Highlight 8 for an example).
         Highlight 8:  EXAMPLE OF FUND-
               BALANCING WAIVER

     The Fund-balancing waiver was invoked to"
  waive compliance with State water quality standards
  because attaining these standards would have
  required removal and off-site disposal of more than
  4 million cubic yards of contaminated ore, tailings,
  and bottom sediments in  the streams and reservoir,
  at an estimated  cost of $1.4 billion. At the time of
  ROD signature,  the Fund had been nearly depleted,
  with remaining monies  reserved  for ongoing
  projects.  The waiver' allowed  selection of a
  protective alternative of partial capping and surface
  water diversion, costing $72.2  million.

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            ARARs Qfs and A's:
    General Policy, RCRA, CWA, SDWA,
Post-ROD Information, and Contingent Waivers

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   &EFA
                         United States
                         Environmental Protection
                         Agency
                           Office of
                           Solid Waste and
                           Emergency Response
Publication 9234.2-01 /FS-A

           June 1991
ARARs  Q's   &  A's:
General  Policy, RCRA, CWA,  SDWA,
Post-ROD  Information, and
Contingent Waivers
Office of Emergency and Remedial Response
Office of Program Management OS-240
                                                       Quick Reference Fact Sheet
    Section 121(d)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as
amended by the 1986 Superfund Amendments and Reauthorization Act (SARA), requires that on-site remedial actions must
attain (or waive) Federal and  more stringent State applicable or relevant and appropriate requirements (ARARs) of
environmental laws upon completion of the remedial action. The revised National Contingency Plan of 1990 (NCP) requires
compliance with ARARs during remedial actions as well as at completion, and compels attainment of ARARs during
removal actions to  the extent  practicable, considering the exigencies of the situation.   See the NCP, 40 CFR section
300.415(i) (55 FR 8666, 8843) and section 300.435(b)(2) (55 FR 8666, 8852) (March 8, 1990).
    To implement the ARARs provision, EPA has developed guidance, CERCLA Compliance With Other Laws Manual:
Parts I and II (Publications 9234.1-01 and 9234.1-02), and has provided training to Regions and States on the identification
of and compliance with ARARs.  These "ARARs Q's and A's" are part of a series of Fact Sheets that provide guidance on
a number of questions that arose  in developing  ARAR policies, in ARARs training sessions, and in identifying and
complying with ARARs at specific sites. This particular Q's and A's Fact Sheet, which updates and replaces a Fact Sheet
first issued in May 1989, addresses the ARARs general policy; compliance with the Resource Conservation and Recovery
Act (RCRA), the Clean Water Act (CWA), and the Safe Drinking Water Act (SDWA); Post-ROD Information and
Administrative Record requirements; and  "contingency" waivers of ARARs.
                                        I. General Policy
Ql.  What difference does it make whether a requirement
     is "applicable" or "relevant and appropriate"?  Why
     make that distinction?

A.   It is true that once a requirement is determined to be
     relevant and appropriate, it must be complied with as
     if it were applicable. However, there are significant
     differences between the identification and analysis of
     the two  types  of requirements (see  Highlight I).
     "Applicability"  is a legal and jurisdictional  deter-
     mination, while the determination of "relevant and
     appropriate" relies  on professional judgment, con-
     sidering environmental and technical  factors  at the
     site.  There is  more flexibility in the relevance and
     appropriateness determination:  a requirement may
     be "relevant," in that it covers situations similar to
     that at the site,  but may not be "appropriate" to apply
     for various reasons and, therefore, not well suited to
     the site.  In some situations, only portions of  a
     requirement or  regulation may be judged relevant and
     appropriate; if  a requirement is applicable, however,
     all substantive parts must be followed. (See Overview
     of ARARs:  Focus on ARAR Waivers. Publication
     9234.2-03/FS, December  1989, for further discussion
     on compliance  with ARARs.)
                               For example, if closure requirements under Subtitle
                               C of RCRA are applicable (e.g., at a landfill that
                               received RCRA  hazardous waste after 1980 or where
                               the  Superfund   action   constitutes  disposal  of
                               hazardous waste), the landfill  must be closed in
                               compliance with one of the closure options available
                               in Subtitle C regulations.  These options are closure
                               by removal (clean closure), which requires decontam-
                               ination to health-based levels, or closure with waste
                               in  place (landfill closure), which requires imperme-
                               able caps and long-term maintenance.

                               However, if Subtitle C closure requirements are not
                               applicable, but  are determined  to be relevant and
                               appropriate, then a "hybrid closure," which includes
                               other types of closure designs, may also be used. The
                               hybrid closure option arises from a determination
                               thai only certain closure requirements in the two
                               Subtitle C closure alternatives  are  relevant and
                               appropriate. (See proposed NCP, 53 FR. at 51446,
                               and preamble to the NCP, 55 FR at 8743, for further
                               discussion of RCRA closure requirements and the
                               concept of hybrid closure.)

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   Highlight 1: DEFINITIONS OF "APPLICABLE"
       AND "RELEVANT AND APPROPRIATE"

  "Applicable requirements mean those cleanup
  standards, standards of control, and other
  substantive environmental protection requirements,
  criteria, or limitations promulgated under Federal
  environmental or State environmental or facility
  siting law that specifically address a hazardous
  substance, pollutant, contaminant, remedial action,
  location, or other circumstance at a CERCLA site."
  [Section 300.5 of the NCP, 55 FR at 8814J  In
  other words, an applicable requirement is one with
  which a private party would have to comply by law
  if the same action was being undertaken apart from
  CERCLA authority.  All jurisdictional prerequisites
  of the requirement must be met in order for the
  requirement to be applicable.

  If a requirement is not applicable, it still may be
  relevant and appropriate. "Relevant and
  appropriate requirements mean those cleanup
  standards [that] ... address problems or situations
  sufficiently similar to those encountered at the
  CERCLA site that their use is well suited to the
  particular site."  [Section 300.5 of the NCP, 55 FR
  at 8817]  A requirement that is relevant and
  appropriate may "miss" on one or more jurisdic-
  tional prerequisites for applicability but still make
  sense at the site, given the circumstances of the site
  and release.
Q2.  Does an applicable requirement take precedence over
     one that is relevant and appropriate?   In other
     words, if an applicable requirement is available, will
     that be the ARAR, rather than one  that  might
     otherwise be relevant and appropriate?
A.   No, a requirement may be relevant and  appropriate
     even if another requirement legally applies to  that
     situation, particularly when the applicable require-
     ment was not really intended to address the type or
     magnitude  of  problems encountered at Superfund
     sites.  For example,  RCRA Subtitle D requirements
     for covers for solid waste facilities may be applicable
     when RCRA hazardous waste is not present at the
     site. However, the soil cover required under Subtitle
     D may not  always be sufficient to limit leachate at a
     Superfund site that has substantial amounts of waste
     similar  to  RCRA  hazardous  waste.  In  such  a
     situation, some Subtitle C closure requirements may
     be relevant and appropriate to some parts of the site,
     even though Subtitle D requirements legally apply.

     However,   one  factor  that  affects  whether  a
     requirement is relevant and appropriate is whether
     another requirement exists that more fully matches
     the circumstances   at  the  site. In some cases, this
     might be a requirement that was directly intended for,
     and is applicable to, the particular situation.  For
     example, Federal Water  Quality Criteria generally
     will not be relevant and appropriate and, therefore,
     not ARAR when there is an applicable State Water
     Quality Standard promulgated  specifically  for the
     pollutant and water body, which therefore "more fully
     matches" the situation.  (See Overview of ARARs:
     Focus on ARAR Waivers. Publication 9234.2-03/FS,
     December 1989, for further discussion on compliance
     with ARARs, and CERCLA Com-pliance With the
     CWA  and   SDWA.   Publication  9234.2-06/FS,
     February 1990, for additional  dis-cussion  on the
     resolution of potentially conflicting water ARARs.)

Q3.  Is compliance with ARARs required for a "no action"
     decision?

A.   No.  CERCLA Section 121 cleanup standards,  in-
     cluding compliance with ARARs, apply  only to
     remedial actions that the Agency determines should
     be taken under CERCLA  Sections 104 and 106
     authority. A "no action" decision can only be made
     when no remedial  action  is necessary  to  reduce,
     control,  or  mitigate exposure because the site or
     portion of the site  is already protective of human
     health and  the environment.   See Guidance  on
     Preparing Superfund Decision Documents (OSWER
     Directive 9355.3-02) for further discussion of "no
     action" decisions.

Q4.  Does an ARAR always have to  be met, even if it is
     not necessary to ensure protectiveness?

A.   Yes, unless  one of the six  waivers can be  used.
     Attainment of ARARs is a "threshold requirement"
     in SARA, as is the requirement  that the remedies be
     protective of human health and  the environment. If
     a requirement is applicable or  relevant and appro-
     priate, it must be met, unless an ARAR waiver can
     be used.  ARARs  represent the minimum that  a
     remedy must  attain; it may sometimes be necessary,
     where there are multiple contaminants with poten-
     tially cumulative or synergistic effects, to go beyond
     what ARARs require to ensure that a remedy is pro-*
     tective. (Sec Overview of ARARs:  Focus on ARAR
     Waivers. Publication 9234.2-03/FS, December 1989
     for further discussion on compliance with ARARs.)

Q5.  If wastes from non-contiguous facilities are combined
     on one site for treatment, is the treatment viewed as
     off-site activity, and the unit therefore subject to
     permitting?
A.   No.  Because the combined remedial action consti-
     tutes on-site  action, compliance with permitting or
     other administrative  requirements would  not be
     required (see Highlight 2).    CERCLA  Section
     104(d)(4) authorires EPA to treat two or more non-
     contiguous  facilities  as  one site  for  purposes of
     response, if such facilities are reasonably related on

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    Highlight 2:  ON-SITE VS. OFF-SITE ACTIONS

  The requirements under CERCLA for compliance
  with other laws differ in two significant ways for on-
  site and off-site actions. First, the ARARs pro-
  vision applies only to on-site actions; off-site
  actions must comply fully only with any laws that
  legally apply to that action. Therefore, off-site
  actions need only comply with "applicable"
  requirements, not with "relevant and appropriate"
  requirements; ARAR waivers are not available for
  requirements that apply to off-site actions.

  Second, on-site actions must comply only with the
  substantive  portions of a given requirement; on-site
  activities need not comply with administrative
  requirements, such as obtaining a permit or record-
  keeping and reporting. (Monitoring requirements
  are considered substantive requirements.)  Off-site
  actions must comply with both substantive and
  administrative requirements of all applicable laws.
  [Note: ARARs are the requirements of environ-
  mental and facility siting laws only. Independent of
  ARARs, on-site activities also mast comply with
  applicable requirements of non-environmental laws
  (e.g., building codes and safety requirements),
  excluding permit requirements.]
     the basis of geography or their potential threat to
     public health, welfare,  or the environment.   In
     keeping with the statutory criteria under CERCLA
     Section 121 (b), combining facilities as one site for
     remedial action  must also be shown to be  cost-
     effective and not result in any significant additional
     short-term impacts on public health and the environ-
     ment.  (See preamble to the NCP, 55 FR at 8690-
     8691; Interim RCRA/CERCLA Guidance on Non-
     Contiguous Sites and On-Site Management of Waste
     Residue. OSWER Directive 9347.0-1, March 1986;
     and 49 FR at 37076, September 21, 1984.)
Q6.  Are environmental  resource laws, such  as  the
     Endangered Species Act, the National Historic Pres-
     ervation Act  (Nil PA),  and  the Wild  and  Scenic
     Rivers Act, potential ARARs for CERCLA actions?

A.   Yes, requirements  in,  these laws  are potential
     ARARs.   However, these laws  frequently require
     consultation with, and under some laws, concurrence
     of, other Agencies or groups, such as the Fish and
     Wildlife Service or the Advisory Council on Historic
     Preservation.  Administrative requirements such as
     consultation or obtaining approval are not required
     for on-site actions.   However, it is strongly recom-
     mended that  the lead agency nevertheless consult
     with the administering agencies to ensure compliance
     with substantive requirements,  e.g., the  NHPA
     requirement  that actions  must avoid or minimize
     impacts on cultural resources.  (See preamble to the
     NCP, 55 FR at 8757.  Also, see Summary of Part II:
     CAA. TSCA, and Other Statutes. Publication 9234.2-
     07/FS, April 1990, for further discussion of resource
     protection laws.)

Q7.  Are environmental  standards and requirements of
     Indian  Tribes potential ARARs?

A.   Yes.   Indian Tribal requirements  are potential
     ARARs for CERCLA actions taken  on Tribal lands
     and are treated consistently with State requirements.
     Tribal requirements that meet the eligibility criteria
     for State  ARARs, i.e., those that are promulgated
     (legally enforceable and of general applicability), are
     more stringent than Federal requirements, and are
     identified in a timely manner, are potential ARARs.
     (See preamble to the NCP, 55  FR at  8741-8742;
     section 300.5 of the NCP,  55 FR  at 8816  for  a
     definition of Indian Tribe; and the Revised Interim
     Final  Guidance  on  Indian  Involvement  in  the
     SuperfunOrogram. OSWER Directive 9375.5-02A,
     November 28, 1989.)
                       II.  Resource Conservation and Recovery Act (RCRA)
Q8.  How can  RCRA listed waste be  "delisted" when
     wastes will remain on-site?

A.   By documenting in  the ROD  that the substantive
     requirements in RCRA for delisting have been met,
     a RCRA listed waste may be "delisted" when wastes
     remain on-site.

     Once a listed waste is "delisted,"  it is  no longer
     considered a "hazardous waste"  and is, therefore,
     subject to RCRA Subtitle D requirements for solid
     waste, rather than the more stringent RCRA Subtitle
     C requirements.
    The substantive requirements that must be met for
    delisting a RCRA hazardous waste that will remain
    on-site are  the  standards  in  40  CFR  sections
    260.22(a)(l)  and (2), which state that a waste that
    "does  not meet any of the criteria under which the
    waste was listed as hazardous or an acutely hazardous
    waste" and for which there is no "reasonable basis to
    believe that factors  (including  other  constituents)
    other than those for which the waste was listed could
    cause  the  waste  to  be  a  hazardous waste"  is
    "delistable."   Administrative requirements,  which
    include  requirements  to  undergo  a  petition  and
    rulemaking process and to  develop and supply specific

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    information, need not be met on-site. (See A Guide
    to  Delisting  of  RCRA  Wastes  for  Superfund
    Remedial  Responses.  Publication  9347.3-09/FS,
    September 1990.)
    Wastes containing constituents at health-based levels,
    assuming direct exposure,  generally will meet the
    standards for delisting.  Wastes with constituents at
    higher levels may also be delistable, since the RCRA
    delisting process allows fate-and-transport modeling,
    generally based on the waste being managed in  a
    solid waste unit.  The  models  used by  the RCRA
    program for  delisting are recommended for use in
    determining whether constituent concentrations above
    health-based levels are delistable, e.g., for wastes that
    will be land disposed (See  50 FR 48886, November
    27, 1985 and 51 FR 41082, November 13,1986). The
    Waste Identification Branch in the Office  of Solid
    Waste (FTS  382-4770)  can also provide assistance
    and advice in delisting a waste.
    Substantive  requirements   for  a  waste  to   meet
    delisting levels should be documented in the  RI/FS
    and the  ROD, and  a  general discussion of why
    delisting  is warranted  should be  included (see A
    Guide to Delisting of RCRA Wastes for Superfund
    Remedial  Responses.  Publication  9347.3-09/FS,
    September 1990).   Generally, the constituent levels
    that must be achieved in order for the waste to be
    considered non-hazardous should be identified in the
    ROD.  Unless treatability studies done during the
    RI/FS make  delisting reasonably certain, the ROD
    should also address, as a contingency, how the waste
    will be handled if it does not achieve delistable levels,
    based on full-scale  treatability  studies or  actual
    performance of the remedy during RD/RA.  If the
    waste cannot be  delisted, and  this contingency  is
    expressly noted in the  ROD, a fact sheet may be
     needed  to notify  the public  that  the  contingency
     remedy will be implemented.
Q9.  Are RCRA financial responsibility requirements
     potential ARARs for Superfund?

A.   No, because they are considered to be administrative
     requirements, not substantive environmental  re-
     quirements. RCRA financial responsibility require-
     ments support implementation of RCRA technical
     standards by ensuring that RCRA facility owners or
     operators  have  the financial  resources available
     to  address releases and  comply with closure and
     post-closure  requirements.  CERCLA agreements
     with PRPs and, ultimately, the Fund itself, achieve
     essentially the same purpose.

Q10. RCRA hazardous waste  is placed into an existing
     pit that had received hazardous waste in the past,
     but is not subject to RCRA Subtitle C regulations
     because  the pit closed before 1980.  Would  the
     minimum  technology  requirements  (MTR)  be
     applicable?

A.   Yes; although the pit is not considered a "new unit,"
     all surface  impoundments (i.e.,  both  new and
     existing)  are subject  to  MTR if they  receive
     hazardous wastes (i.e., wastes that were hazardous as
     of November 7, 1984) after November  1988.  In
     addition,  the land  disposal  restrictions (LDRs)
     prohibit placement of restricted wastes (which are
     under a national capacity variance) in landfills or
     surface impoundments that are  not in compliance
     with MTR. If such a waste is placed in the existing
     waste pit, the pit would have to comply with MTR,
     even though it is not a "new unit."  See Superfund
     LDR  Guide  #3:    Treatment   Standards  and
     Minimum Technology Requirements Under Land
     Disposal  Restrictions (LDRsV Publication 9347.3-
     03/FS, July 1989.
                III.  Clean Water Act (CWA)  & Safe Drinking Water Act (SDWA)
Qll. Do antidegradation laws for ground water, which are
     increasingly common in State laws, mean  that the
     aquifer must be restored to its original quality before
     contamination from the site occurred?

A.   In  most  cases,  no.   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.  If more stringent State standards
     than those imposed under Federal law are determined
     to be ARARs  for the site, they would have to be met
     (e.g., by  meeting the  discharge requirements) or
      waived (e.g, by the interim remedy waiver). Where
      temporary degradation of the ground water may be
      required during remedial action, protection should
      be  provided  by  restricting access or  providing
      institutional controls, and  EPA response actions
      should ultimately result in restoration of the ground
      water's beneficial uses.  (See ARARs Q's & A's:
      State  Ground-Water   Antidegradation   Issues.
      Publication 9234.2-11/FS, July 1990.)

 Q12. There are some situations where an aquifer that is
      a current or potential drinking-water source, treat-
      able to MCLs at the tap, cannot be remediated to
      non-zero MCLGs or MCLs in the aquifer.  Would
      non-zero MCLGs or MCLs still be relevant and
      appropriate?

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A.   In general, yes.  The non-zero MCLGs and, if none,
     the MCLs, are generally relevant and appropriate for
     any aquifer that is a potential drinking-water source
     (see Highlight 3) (see section 300.430(e)(2)(i)(B)-(D)
     of the NCP, 55 FR at 8848).  If they cannot be at-
     tained (e.g., because of complex hydrogeology due to
     fractured bedrock), an ARAR waiver for technical
     impracticability should be used. If attainment of a
     non-zero MCLG or MCL is impossible because the
     background level of the chemical subject to CERCLA
     authority (e.g., a man-made chemical) is higher than.
     that of the MCLG or MCL, attainment of the MCLG
     or MCL would not be relevant and appropriate.  (See
     CERCLA Compliance With  the CWA and SDWA.
     Publication 9234.2-06/FS, January 1990.)
                    Highlight 3:
      ARARs FOR GROUND-WATER CLEANUP

   Non-zero MCLGs, and, if none, MCLs promulgated
   under SDWA, generally will be the relevant and
   appropriate standard for ground water that is or
   may be used for drinking, considering its use, value,
   and vulnerability as described in the EPA's Ground-
   Water Protection Strategy (August 1984), e.g., for
   Class I and II aquifers.
Q13. Many new MCLGs and MCLs will be promulgated or
     existing ones revised in upcoming years. Will new or
     revised MCLGs and MCLs, when promulgated, need
     to be incorporated into the remedy, possibly altering
     it? Should a proposed non-zero MCLG or MCL be
     used as the remediation goal in the ROD?

A.   Under the NCP, if a new requirement is promulgated
     after  the  ROD is signed, and the requirement  is
     determined  to  be  applicable  or  relevant  and
     appropriate, the remedy should be examined in light
     of the new requirement (at the  5-year review or
     earlier) to ensure that the remedy is still protective.
     If the remedy is still protective, it would not have to
     be modified, even though it  does not meet the new
     requirement.  Since non-zero MCLGs and  MCLs
     often are a key component in  defining remediation
     levels, new or revised MCLGs and MCLs may reveal
     that the chosen remedy is not protective.  In such
     cases,  the remedy would  have   to  be modified
     accordingly. This  could occur  at any time after the
     ROD is signed -  during remedial design, remedial
     action, or at the 5-year review.
   However, a new non-zero MCLG or MCL usually
   will not mean the remedy must be changed. If the
   existing remedy is still within the risk ranee, even
   considering the new MCLG or MCL. the remedy
   would not have to be modified because the remedy
   is still protective.  For example, if the new non-zero
   MCLG or MCL represents a risk of W6, while the
   selected remediation level results in a 10"5 risk, the
   remedy is still considered protective.
   At some sites, however, a new MCLG or MCL
   could  require  modification  to the remedy  after
   implementation of the remedy has begun.  There-
   fore, if a proposed non-zero  MCLG or MCL is
   available before the ROD is signed, the preferred
   remedy should be evaluated to determine how the
   MCLG or MCL, if promulgated as proposed, would
   affect  the remedy.   Will  the preferred  remedy
   achieve the proposed MCLG or MCL? Could the
   remedy achieve the proposed MCLG or MCL with
   minor design modifications? Would the proposed
   MCLG or MCL require significant changes, such as
   requiring remediation in ground water  that  is
   currently deemed fully protective?

   The proposed  non-zero MCLG or MCL  may be
   used as a "to-be-considered" (TBC) in establishing a
   protective remediation level in the ROD, provided
   that:  (1) the new standard would make a remedy
   based on the current standard unprotective; and (2)
   the proposed  standard  is not controversial  or
   otherwise is  unlikely to change.  This reflects the
   importance of non-zero MCLGs and  MCLs in
   Superfund's determination of protectiveness and as
   a cleanup standard for the community.  It also
   minimizes the need for later changes to the remedy
   when changes may be more difficult and costly to
   make.  fSee CERCLA Compliance With the CWA
   and  SDWA. Publication  9234.2-06/FS,  January
   1990.)
Note: In the May 1989 version of this fact sheet,
Question 14 addressed the use of the 10"6 risk level
when non-zero MCLGs or MCLs exist for some,
but not all, significant contaminants.  Question 14
has been  omitted from this fact sheet because this
issue is currently being clarified by the Agency.
Final resolution of this issue will be addressed in
guidance  in the near future.

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                    IV.  Post-ROD Information and the Administrative Record
Q14. Should remedies be revised to attain requirements of
     Federal or  State  environmental  law  that are
     promulgated or modified after signature of the ROD?

A.   In general, no. The requirements that are determined
     to be  ARARs  for  a site "freeze" at the time  of
     signature.  Requirements that are newly promulgated
     or modified post-ROD  need  to  be attained (or
     waived) only when  EPA  determines  that  these
     requirements are ARARs and that they must be met
     in order for the  remedy to be protective (see section
     300.430(f)(l)(ii)(B)(l) of the NCP).   Newly prom-
     ulgated or modified requirements will be considered
     during the five-year review or sooner, if appropriate,
     to determine whether the remedy is still protective.
     (See Question 13 of this fact sheet and Question 6 of
     the fact sheet entitled ARARs  Q's & A's:   Com-
     pliance With  the  Toxicity Characteristics  Rule.
     Part I. (Publication  9234.2-OS/FS, May  1990)  for
     examples of how the "freezing" regulation applies  to
     specific ARARs.)

Q15. What ARARs apply if information not known  at the
     time of ROD signature is discovered post-ROD (e.g.,
     RCRA hazardous wastes are identified on the site for
     the first time during construction activities)?

A.   If, based on the new information, the Region decides
     to change the  remedy  (e.g.,  in  order  to  assure
     protection),  the Region  must meet  or waive  all
     ARARs identified at that time.

     First,  Regions  must determine whether  the new
     information  is such that the ROD should be revised
     (and an Explanation of Significant Differences (ESD)
     issued), or amended (and a ROD amendment issued).
     If the Region  believes  that significant, but non-
     fundamental, changes should be made in the selected
     remedy based on new information (e.g., the discovery
     of a new contaminant triggers an MCL that is more
     difficult to meet, resulting in a decision to operate
     the pump-and-treat system for 15 years instead of 10
     years), then an  ESD should be issued (see section
     300.435(c)(2)(i) of the NCP).  If the Region decides
     to make a fundamental change in the remedy based
     on  the new information (e.g., to  change from  an
     engineering  control to an incineration remedy), the
     process for a ROD amendment must be followed (see
     section 300.435(c)(2)(ii)  of the NCP).  Regions
     should include in the administrative  record file any
     documents upon which they base their determinations
     to issue an  ESD or ROD amendment (see section
     300.825(a)(2)  of  the  NCP).    For  additional
     information on this issue, see Guide  to Addressing
     Pre-ROD  and  Post-ROD  Changes.  Publication
     9355.3-02FS/4, Ap;il 1990.
     If, however, the Region  decides not to revise or
     amend the ROD based on  the  new information,
     then no new ARARs apply because the remedy is
     not being changed.  To the extent that the Region
     wishes to document its reasoning on this point (e.g.,
     to explain why the remedy remains protective even
     taking into account newly-discovered RCRA wastes),
     this information could be included in the admini-
     strative record file. (Note: section 300.825(a)(l) of
     the NCP  allows  EPA to add documents to the
     administrative record file, after ROD signature, that
     "concern a portion  of a  response action decision
     that the decision document does not  address or
     reserves to be decided at a later date.")

Q16. If a  ROD does  address  an action, location, or
     chemical such that the proper set of ARARs could
     have  been identified prior to the signing of the
     ROD, but one or more ARARs were not identified,
     how  should  the  Regions   respond  if  those
     requirements are identified post-ROD?

A.   The  selected  remedy would generally not  be
     required to meet such late-identified requirements.
     If the promulgated requirement existed prior to
     ROD signature, and the waste, action, or location to
     which the requirement potentially applied was also
     known at the time of ROD signature, the failure of
     a  party to identify the requirement as an ARAR
     within the meaning of CERCLA, during the public
     comment period of the proposed  plan, would likely
     preclude the party from raising the issue after ROD
     signature.

     [Note that section 300.825(c) of  the NCP requires
     EPA to consider comments submitted by interested
     persons after the close of the comment period only
     "to the extent that the comments contain significant
     information  not  contained  elsewhere  in  the
     administrative record file which could not have been
     submitted  during the  public comment  period an4
     which would  substantially support  the need  to
     significantly alter the response action." This may be
     a  difficult  test to meet where information on the
     requirement  was  available  during  the  public
     comment period, and therefore, in most cases, could
     have been brought to the Agency's attention at that
     time.]

     With regard  to  State ARARs, CERCLA Section
     121(d)(2)(A)(ii)  specifically  provides  that   a
     requirement  of  a State  environmental  or  facility
     siting law may be considered to be an ARAR only
     if it  is identified in  a  timely  manner. (Sections

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     300.400(g)(5), 300.515(d)(l), and 300.515(h)(2) of the
     NCP indicate that State ARARs identification must
     take place well before the signature of the ROD in
     order to be considered "timely.")

     EPA could decide to take a newly-identified require-
     ment  into consideration  on  a  site-specific  basis.
     However, because no new information on the waste
     composition or nature of the  site  is being brought
     before the Region, it is likely that the risk assessment
     performed at the site in question will have considered
     all appropriate risks, and that the site is protective of
     human health and the environment even in light of
     the late-identified regulatory standard.  In rare cases
     where the Region evaluates the standard and decides
     that the remedy should be changed or amended (e.g.,
     based on a finding that the ARAR  was incorrectly
analyzed and the remedy is not protective), an ESD
or ROD amendment should be considered. In such
cases any new components of the remedy would be
required  to  attain  (or  waive)   those ARARs
identified at the time the ESD or ROD amendment
is  issued.  (Note:  the ESD or ROD amendment
would be documented  in the administrative  record
file  pursuant   to  section 300.825(a)(2)  of  the
NCP.)  If the Region were to decide not to change
the remedy, but wanted to memorialize the analysis
of  the  late-identified  requirement,  an optional
Remedial Design Fact Sheet could be added to the
post-decision document file. Alternatively, the issue
could be addressed  in a new comment  period and
the analysis placed in the administrative  record file
for the site, as discussed in section 300.825(b) of the
NCP.
                                          V. Contingent Waivers
Q17. What are "contingent waivers" and when should they
     be used?

A.   When sufficient information is available at the time
     of ROD signature indicating the possibility that an
     ARAR  waiver  may be invoked at a site (e.g., the
     RI/FS indicates that it may be technically impracti-
     cable to attain non-zero MCLGs or MCLs in the
     ground water based upon final determinations of the
     size and scope of the contaminated plume), the lead
     agency may consider including a contingent waiver in
     the ROD.   RODs with  contingent waivers  should
     provide a  detailed and objective level or situation at
     which the waiver would be triggered. In addition, the
     ROD should specify that the contingency is "reserved
     to be decided  at a later  date," so  that  if the
     contingency is invoked, the resulting documentation
     becomes part of the administrative record (see NCP
     section  300.825(a)(l), 55 FR at 8861).  [Note: in
some situations, the Agency may not wish to identify
a separate trigger for waivers. For example, in some
ground-water cleanups, the Agency may wish to re-
tain the flexibility to vary pump rates or assess the
effects of temporary shutdown before invoking a
technical impracticability waiver.]

The decision to invoke the contingency should be
documented in a fact  sheet which is placed in the
administrative record  file.  The  Region may also
decide to issue a public notice (e.g., in a major local
newspaper of general  circulation) that the contin-
gency has been invoked.  An ESD is not required to
invoke a contingency  specifically contemplated in
the ROD. (See Guide to Developing Superfund No
Action.  Interim Action, and Contingency Remedy
RODs. Publication 9355.3-02/FS-3, April 1991, for
a general discussion of contingent remedies.)
                                                  * *  * *  »
       NOTICE: The policies set out in this fact sheet are not final Agency action, but are intended solely as guidance.
       They are not intended, nor can they be relied upon, to create any rights enforceable by any party in litigation with
       the United States.  Response personnel may decide to follow the guidance provided in this fact sheet, or to act at
       variance with the guidance, based on an analysis of site-specific circumstances. The Agency also reserves the right
       to change this guidance at any time without public notice.

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CERCLA Compliance With Other Laws Manual
           Summary of Part II
       CAA, TSCA, and Other Statutes

-------
                           United States
                           Environmental Protection
                           Agency
                           Office of
                           Solid Waste and
                           Emergency Response
Publication 9234.2-07/FS

         April 1990
   &EPA
CERCLA Compliance With Other Laws  Manual
Summary  of   Part  II
CAA,  TSCA,  and  Other Statutes
Office of Emergency and Remedial Response
Office of Program Management OS-240
                                                       Quick Reference Fact Sheet
     Section 121 (d) of CERCLA, as amended by the 1986 Superfund Amendments and Reauthorization Act (SARA),
 requires that remedial actions must at least attain Federal and more stringent State applicable and relevant and
 appropriate requirements (ARARs) upon completion of the remedial action. The 1990 National Contingency Plan (NCP)
 requires compliance with ARARs during remedial actions as well as at completion, and compels attainment of ARARs
 during removal actions whenever practicable.  See NCP, 55 Fed. Reg. 8666, 8843 (March 8, 1990) (to be codified  at 40
 CFR section 300.414(i)), and 55 Fed. Reg. 8666, 8852 (March 8, 1990) (to be codified at 40 CFR 300.435(b)(2)).

     To implement the ARARs provision, EPA has developed guidance, CERCLA Compliance With Other Laws Manual:
 Parts  I and II   (Publications 9234.1-01 and 9234.1-02).  EPA is preparing a series of short fact sheets that summarize
 these  guidance documents.  This  Fact Sheet focuses on CERCLA compliance with the Clean Air Act,  the Toxic
 Substances Control Act, and the Federal Insecticide, Fungicide, and Rodenticide Act (Chapters 2 and 3 of Part II).  In
 addition, it discusses other statutes that set standards for radioactive wastes, mining wastes, and other resource protection
 statutes  that are potential ARARs for CERCLA actions.


                                    I.  STANDARDS FOR AIR
 A.  CLEAN AIR ACT (CAA)

     The objective of the CAA is to protect and enhance
 the quality of  the  nation's air resources.  The CAA
 achieves this objective by regulating emissions into the air
 through  National   Ambient  Air   Quality  Standards
 (NAAQS), National Emission Standards  for Hazardous
 Air Pollutants (NESHAPs), and New Source Performance
 Standards (NSPS). These potential ARARs may apply to
 both stationary and mobile sources of emissions, and they
 may be implemented through combined  Federal, State,
 and local programs.   See  Highlight  1  for  CERCLA
 activities that may trigger CAA. ARARs.

     1.   National   Ambient  Air   Quality  Standards
         (NAAQS)

     Under CAA section 109, EPA promulgates NAAQS.
 NAAQS  are  national limitations  on  ambient  con-
 centrations intended  to protect health and welfare. There
 are primary  and  some  secondary  NAAQS   for  six
 pollutants.  (See 40 CFR  Part 50.)   These pollutants
 (called "criteria pollutants") are: (1) carbon monoxide; (2)
 lead; (3) nitrogen dioxide; (4) participate matter equal to
 or less  than 10  microns particle size (PM10); (5)  ozone,
                          which results from the emissions of volatile organic com-
                          pounds (VOCs); and (6) sulfur oxides. Primary standards
                          are set  at health-based levels, while secondary standards
                          are designed to protect public welfare and wildlife.
                                  Highlight 1:  CERCLA ACTIVITIES
                               POTENTIALLY SUBJECT TO CAA ARARS

                            • Air stripping (used to volatilize contamination
                              both in ground water and in soil);

                            • Thermal destruction.(e.g., incineration);

                            • Handling of contaminated soil, including
                              loading,  unloading, compacting material in a
                              landfill, and digging;

                            • Gaseous waste treatment (e.g., flaring used
                              when capping and venting a site, usually at
                              abandoned or inactive landfills); and

                            • Biodegradation (especially when aeration of
                              liquids is involved).
                                                                               Printed on Recycled Paper

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              are  not  applicable  to  source-specific
emissions   limitations,  nor  enforceable  in   and  of
themselves.   States translate them into source-specific
emission limitations through State Implementation Plans
(SIPs).  The  CAA requires each State to adopt  and
submit to  EPA for approval a SIP for implementing and
enforcing  NAAQS.    Upon EPA approval,   the  SIP
becomes both  Federally  enforceable  and a  potential
Federal ARAR at a site.  The SIP  may contain State,
regional, or local air program requirements, or the State
may adopt more stringent standards than those found in
the SIP.  Both State requirements approved through the
SIP process and more stringent State standards issued
under State law are potential ARARs for Superfund sites.

    In addition to  requirements established in  SIPs for
implementing NAAQS, there are regulatory requirements
for "major sources" of emissions. The requirements vary
depending upon whether  the area  in which the source  is
located  is  an  attainment or  a  non-attainment area.
Attainment areas  are  those regions of the country  that
are designated as being in compliance with the  NAAQS
for criteria  pollutants (see 40 CFR  Part 81).  Non-
attainment areas are  those  parts  of the country where
compliance has not been  attained for one or several
criteria  pollutants.  Therefore, a  certain area  may be
designated  as  an  attainment  area  for one, and a  non-
attainment area for another, of the criteria pollutants.
RPMs should  contact  EPA Regional Air Branch Chiefs
or  their  Air/Superfund   Coordinators   for  additional
questions concerning attainment and non-attainment areas.

    In  general, emissions from CERCLA activities are
not expected  to  qualify as "major;"  therefore, these
requirements are not likely to be applicable to CERCLA
response  actions.      Highlight  2  summarizes  these
requirements for major sources in attainment  and non-
attainment areas.

    For a site where a ground-water pump-and-treat
technique  or soil  vapor extraction  is used together with
air strippers in an ozone  non-attainment area, the June
15, 1989 memorandum entitled, "Control of Air Emissions
from Superfund Air Strippers at Superfund Groundwater
Sites" (OSWER Directive 9355.0-28), is an important to-
be-considered (TBC).  The guidance indicates that sources
that need controls are  those with actual emissions rates  in
excess of 3 Ibs/hr, or 15 Ibs/day, or a calculated rate of 10
tons/year (T/yr) of total VOCs.

    2.   National Emissions Standards for Hazardous Air
         Pollutants (NESHAPs)

    Hazardous air pollutants are  those  pollutants  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
    Highlight 2:  REQUIREMENTS FOR MAJOR
         SOURCES IN ATTAINMENT AND
            NON-ATTAINMENT AREAS

  Attainment Areas and Areas Defined as
  Unclassified

  •  Requirement: Prevention of Significant
     Deterioration (PSD) regulations, found at 40
     CFR Part 52, require that affected sources
     meet an emission limit that reflects  the
     installation  and operation of Best Available
     Control Technology (BACT).  PSD  permit
     regulations  also require that the source meet
     specified air quality deterioration increments.

  •  Applicable To: New stationary major source of
     emissions and major modification to existing
     source in an attainment or unclassified area.

  •  Definition of Major Source:  Either  emits 250
     or more T/yr of any regulated pollutant, or ihe
     site  has a facility such as  an incinerator or
     chemical processing plant that emits 100 or
     more T/yr.

  Non-attainment Areas

  •  Requirement: Must meet Lowest Achievable
     Emission Rate (LAER).  Additionally, the SIP
     must contain a growth allowance or the
     operator of the source must provide an
     emissions offset.

  •  Applicable To: Anything  that falls within the
     definition of a major source for non-attainment
     areas (not source-specific).

  •  Definition of Major Source:  Emissions of 100
     or more T/yr of the pollutant designated as
     non-attainment in that area.
increase in serious irreversible illness. The CAA requires
EPA to list  periodically the hazardous air  pollutants  it
intends to regulate, and to establish emission standards
(NESHAPs) for them.  NESHAPs are listed at  40 CFR
Part 61.

     NESHAPs have been promulgated for emissions of
particular air pollutants from specific sources. NESHAPs
are not  generally  applicable  to  Superfund  response
actions because CERCLA sites do not usually contain
one of the specific source categories regulated.  More-

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over,  NESHAPs   are  generally   not   relevant  and
appropriate because the standards are intended for the
specific sources regulated and their use will generally not
be  well-suited for all  sources of that pollutant.  As  a
possible exception,  the  NESHAPs  for  asbestos and
radionuclides may be ARARs for a CERCLA site (see
Highlight 3).

     3.   New Source Performance Standards (NSPS)

     The CAA requires EPA to promulgate NSPS for new
stationary sources that emit particular pollutants that
cause or significantly contribute to air pollution.  Since
NSPS  are  source-specific  requirements,  they  are not
applicable  to  Superfund  response  actions  unless  they
include a  "new source" subject to  NSPS, such  as  a
municipal waste combustor.  If  the response action does
not  include a source  subject  to NSPS, NSPS  may be
relevant and appropriate if the pollutant emitted and the
technology  employed at the site are sufficiently similar to
the pollutant and source category regulated by an NSPS,
so that their use is well-suited to site circumstances. For
example, if cleanup involves incineration at  a municipal
landfill,  the  NSPS  for   paniculate  emissions  from
incinerators with a charging rate of 50 T/day, which are
used for burning solid  waste containing more  than 50
percent municipal-type waste, may be a potential ARAR.

B.   RESOURCE CONSERVATION AND  RECOVERY
     ACT (RCRA) AIR EMISSION REGULATIONS

     There  are  RCRA regulations covering hazardous
waste  air  emissions  from  incinerators, land  disposal
facilities, and other  treatment,  storage,  and  disposal
facilities (TSDFs).  The potential ARARs for incinerators
consist of standards for destruction and removal efficiency,
for   products  of incomplete combustion,  metals,  and
emissions of hydrogen chloride, and for  particulates.
Potential ARARs for land disposal facilities are limited to
the requirement that particulate matter from such facilities
be  controlled by  covers  or other  means.   Potential
ARARs  for TSDFs  include air emission  standards  for
process vents  and  equipment  leaks,  and air emission
standards   for  container   storage,   tanks,   surface
impoundments, and waste fixation units (see 40 CFR Parts
264 and 269).

C.   STATE AIR TOXIC PROGRAMS

     Several State  air  pollution control agencies  have
adopted programs to regulate "toxic air pollutants." These
requirements are likely to be  the  most significant  air
emission ARARs at Superfund  sites.  Different States
have regulations for different pollutants and have adopted
differing  levels of safety. RPMs should coordinate with
the  appropriate  State  agency  and their own  Regional
Air/Superfund  Coordinator to determine what potential
ARARs (if any) the pertinent State Air Toxic Program
contains.
     Highlight 3:  POTENTIAL NESHAP ARARs

  POTENTIAL ASBESTOS NESHAP ARARs

  •  40 CFR section 61.147 establishes procedures
     for asbestos emission control during demolition
     of buildings or equipment containing friable
     asbestos material.  This regulation may be an
     ARAR for a response action that includes
     demolishing a building containing asbestos.

  •  40 CFR section 61.153 sets standards for
     inactive waste disposal sites  from asbestos mills
     and manufacturing and fabricating operations;
     40 CFR section 61.156 establishes standards for
     active waste disposal sites; and 40 CFR section
     61.152 establishes standards  for disposal of
     asbestos containing waste from demolition and
     renovation operations. These standards  may be
     ARARs for response actions involving asbestos
     disposal. •

  POTENTIAL RADIONUCLIDE NESHAP ARARs

  •  40 CFR Part 61, Subparts H and I are
     applicable to airborne emissions  of
     radionuclides (excluding radon-220 and 222 for
     Subpart H and radon-222 for Subpart I) from
     incinerators, land disposal  facilities, and other
     TSDFs for radioactive materials,  during the
     cleanup of sites at Department of Energy
     (DOE) facilities, Nuclear Regulatory
     Commission-licensed facilities, and non-DOE
     Federal facilities, such as Department of
     Defense facilities.

  •  40 CFR Part 61, Subpart T applies to radon-
     222 emissions from the disposal of uranium
     mill tailings; Subpart W applies to uranium
     mill tailings piles during operation; Subpart R
     applies to radon-222 emissions from
     phosphogypsum stacks (piles) after disposal;
     and Subpart Q applies to radon-222 emissions
     from  storage and disposal facilities for radium-
     containing material  that are  owned or operated
     by DOE (see NCP,  54 Fed. Reg. 51654
     (December 15,  1989) for Subparts T,  Q,  and
     R).  These subparts may be ARARs if the
     response action occurs at an underground
     uranium mine or at a uranium mill site.   They
     may be potential ARARs for other CERCLA
     sites (especially mining sites).

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                       II.  STANDARDS FOR TOXICS AND  PESTICIDES
A.  TOXIC SUBSTANCES CONTROL ACT (TSCA)

    TSCA  authorizes   EPA  to  establish  testing,
premanufacture notification, control, and recordkeeping
regulations pertaining to toxic chemical substances. Those
requirements  that  regulate  control  of polychlorinated
biphenyls (PCBs), fully halogenated chlorofluoroalkanes,
and asbestos are potential ARARs for CERCLA response
actions.   In addition, EPA  generates risk numbers for
chemicals to be studied under TSCA.  These risk numbers
for particular chemicals may constitute guidelines that are
TBC, and may be consulted when developing a protective
remedy.

    1.   PCB Disposal Requirements

    PCB  disposal requirements  under TSCA  will be
applicable if disposal of material contaminated with PCBs
at concentrations  of  50  ppm  or  greater occurred  after
February 17, 1978.  (These requirements may be  relevant
and appropriate  if disposal  occurred before that  date.)
TSCA requirements for  disposal of PCB-contaminated
wastes vary according to the physical state of the  PCBs
(liquid, non-liquid, or articles), and  PCB concentration.
See the CERCLA Compliance with Other Laws  Manual.
Pan II, Chapter 3 (pp. 3-2 through 3-5) for a complete
list of potential TSCA ARARs for PCBs. The Office of
Emergency and   Remedial  Response   is  finalizing a
Guidance on Remedial Actions for Superfund Sites with
PCB Contamination (OSWER Directive 9355.4-01) that
discusses  the  circumstances  under  which  the   PCB
antidilution requirements  may  apply at  CERCLA sites.

    2.   PCB Storage Requirements

    The  substantive  portions  of  the PCB  storage
requirements  found at 40 CFR section 761.65  may be
ARARs for the storage of PCBs prior to disposal.  Other
potential ARARs include requirements for  PCB storage
facilities and containers.

    3.   PCB  Spill Cleanup Policy

    EPA has  published a nationwide  TSCA PCB spill
cleanup  policy in 40 CFR Part  61, Subpart G.   The
action-specific  and cleanup  guidelines  contained within
this policy are potential TBCs, especially with respect to
the cleanup of PCB-contaminated soils.  The spill  policy
is effective for PCB spills occurring after May 4, 1987.

B.  RCRA LAND DISPOSAL RESTRICTIONS (LDRs)
    FOR PCBs

    The land disposal of liquid RCRA hazardous wastes
that contain PCBs at concentrations  equal to or greater
than 50  ppm,  are regulated  by  RCRA under  the
California  List Wastes LDRs, promulgated on July  8,
1987 (see Highlight 4). RCRA LDRs  for PCBs may be
ARARs when the response action  involves excavating,
dredging, or other measures that move PCB-contaminated
materials into a  land-based unit.
     Highlight 4:  RCRA LDR REQUIREMENTS
                    FOR PCBs

     Liquid RCRA hazardous wastes containing
     PCBs at concentrations between 50 and 499
     ppm must be incinerated (or treated by an
     equivalent method) in a facility that meets the
     requirements of 40 CFR section 761.70, or
     burned in a high efficiency  boiler meeting the
     requirements of 40 CFR section 761.60.  See
     40 CFR section 268.42(a)(l).

     Liquid RCRA hazardous wastes containing
     PCBs at concentrations equal to or greater
     than 500 ppm must be incinerated consistent
     with the technical  requirements of 40 CFR
     section 761.70 or be treated by an equivalent
     method See 40 CFR section 268.42(a)(l).

     Nonliquid and b'quid RCRA hazardous wastes
     containing PCBs and halogenated organic
     compounds (HOCs) must be incinerated
     consistent with the requirements of Part  264,
     Subpart O, or Part 265, Subpart O,  if the total
     concentration of HOCs is equal to or greater
     than 1,000 mg/kg.   In the proposed third thirds
     rule under RCRA, EPA is  proposing to  revoke
     the California List provision allowing burning
     of HOCs in furnaces and boilers (see 54 Fed.
     Reg. 48499 (November 22,  1989)).  This rule
     will not affect the PCB regulations mentioned
     above.
C.   FEDERAL  INSECTICIDE,  FUNGICIDE,  AND
     RODENTICIDE ACT (FIFRA)

     FIFRA  authorizes  EPA  to  regulate  the  sale,
distribution, and use  of  all pesticide products  in  the
United States through product licensing or registration.
Under FIFRA, use of a product in a manner inconsistent
with its labeling is  a  violation  of  the Act.  However,
compliance with FIFRA by  following  labeling directions
may not  be  required  at a Superfund  site  since  the
pesticide may be a  RCRA waste at that point.

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     TBCs under FIFRA include nonbinding "procedures
not recommended" for disposal of pesticides (see 40 CFR
section 165.7) and nonbinding "recommended procedures"
for disposal of pesticides (see 40 CFR section 165.8).  In
addition  to disposal TBCs, there are tolerance levels for
pesticides and pesticide residuals in or on raw agricultural
commodities. These tolerance levels are potential ARARs
where sites have agricultural commodities or wildlife for
consumption.
     Discharges of pesticides to surface waters through
a point source are subject to effluent limitations as toxic
pollutants  under the Clean  Water Act  (CWA).  The
CWA  requirements are, therefore, potential ARARs for
such   discharges.    In  addition,  discarded   or off-
specification  pesticides may be regulated under RCRA
Subtitle C as listed or  characteristic  hazardous wastes.
Thus,  RCRA  Subtitle  C requirements are  potential
ARARs for such pesticides.
                         ffl.   STANDARDS FOR RADIOACTIVE  WASTES
     There are few standards applicable to the cleanup of
radioactively contaminated sites and buildings, except for
standards for mill  tailings  under  the  Uranium  Mill
Tailings  Radiation Control  Act and  EPA's  standards
(when promulgated) for residual radioactivity for cleanup
of a  site where radionuclides  have  been used.  Other
standards for radioactive waste may  be  relevant and
appropriate when determined to be well-suited for cleanup
of a specific site. When reviewing potential ARARs, it is
important to determine under which Agency's regulatory
jurisdiction  a site falls,  in  order  to  help  determine
applicability.

A.   POTENTIAL  EPA  ARARs FOR  RADIOACTIVE
     WASTE

     Under the CAA. EPA has promulgated radionuclide
NESHAPs for five different source categories.   Subparts
H  and  I,  which  address DOE,  Nuclear Regulatory
Commission  (NRC)-licensed,  and  non-DOE   Federal
facilities,  are most likely to  be potential ARARs  for
CERCLA response actions (see 40 CFR Part 61).  Under
the  Safe  Drinking Water  Act, EPA has promulgated
maximum contaminant levels (MCLs) for radionuclides in
two  forms:   (1)  radioactivity  concentration limits  for
certain alpha-emitting  radionuclides; and  (2)  an annual
dose limit for the ingestion of certain beta/gamma-emitting
radionuclides  (see 40 CFR  Part  141).    Since  the
radionuclides MCLGs equal zero, the MCLs are  potential
ARARs for Superfund sites.  Under the  Atomic Energy
Act, there are environmental protection standards that
set limits  on radiation  doses received by members of the
general public from operations within the uranium fuel
cycle of nuclear generators. While these standards are not
applicable because they apply  to normal  operations and
planned discharges, they may be relevant and appropriate
to releases of radionuclides and radiation during cleanup
of radioactively contaminated sites (see 40 CFR Part 190).
Under the Uranium Mill Tailings Radiation Control Act,
EPA  has  set standards for mill  tailings  at two  types  of
sites:    (1)  certain  inactive  uranium  processing sites
"designated" for remedial action under section 102 of the
Uianium  Mill Act;  and (2)  commercial uranium and
thorium processing sites licensed by  the  NRC or States
(see 40  CFR  Part  192).   EPA  has also  established
surface-water  discharge  standards  for  radionuclides.
These standards are applicable to discharges from certain
kinds of  mines and  mills;  they  may  be relevant  and
appropriate to  response actions involving discharges of
radionuclides to surface waters from other types of sites
(see 40 CFR Part 440).

B.   POTENTIAL NRC ARARs  FOR RADIOACTIVE
     WASTE

     Standards  found in  10  CFR  Part 20 may  be
applicable to CERCLA actions at NRC-licensed facilities;
they may  be  relevant  and  appropriate to  CERCLA
actions at radioactively contaminated sites  not licensed by
the NRC. These standards establish permissible levels of
radiatiorf in unrestricted areas,  concentration limits for
discharges  to   unrestricted  areas,  and  waste disposal
requirements.

     Standards found  in 10 CFR Part 61 establish criteria
applicable to existing licensed  low-level  waste disposal
sites.   These criteria  are not applicable to  previously
closed  sites  such as existing CERCLA sites.  However,
the  technical  requirements  may  be  relevant   and
appropriate to CERCLA sites with low-level radioactive
waste, if the waste will be permanently left on site.

     Standards found in 10 CFR Parts 30, 40, and 70
contain licensing requirements for the possession and use
of  byproduct,  source,  and  special  nuclear  material,
respectively. Any substantive requirements found within
these standards may be applicable to response actions at
sites licensed under these NRC regulations. They may be
relevant and appropriate to other, non-licensed sites that
contain radioactive contamination.

C.   POTENTIAL DOE ARARs  FOR RADIOACTIVE
     WASTE

     Most of DOE's operations are exempt from  NRC's
licensing and regulatory requirements.  DOE's require-
ments  for  radiation  protection  and  radioactive  waste
management are found in internal DOE orders.  These

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orders have the same force for DOE facilities as does a
regulation; however, because  they are not  promulgated
requirements,  they are  not  potential ARARs.   The
requirements in the orders are applicable only to DOE
installations and do not apply to sites outside of DOE's
jurisdiction.

     Because  DOE's  orders   typically   incorporate
requirements promulgated by other Federal agencies, they
should be consistent with existing  regulations.  To  the
extent  that they are more stringent or cover issues  not
addressed by existing ARARs, they may  be TBCs at a
site.    The  most  important  DOE orders concerning
radiation protection and  radioactive waste management
are DOE 5400.5, "Radiation Protection of the Public and
the Environment," and DOE 5820.2A, "Radioactive Waste
Management."
                             IV.  STANDARDS FOR MINING WASTES
     Potential  ARARs under the Uranium Mill Tailings
Radiation Control Act are  discussed in the preceding
section.  Other potential ARARs for mining wastes are
found in the Surface Mining Control and Reclamation Act
and  in the Resource Conservation and Recovery Act.

A.   SURFACE   MINING    CONTROL   AND
     RECLAMATION ACT (SMCRA)

     Requirements under SMCRA may be applicable to
response actions associated  with abandoned coal  mines
(see 30 CFR  Part  816).  Highlight 5 illustrates when
requirements in  30  CFR Part 816 may be  relevant  and
appropriate  for response actions at other types oj mining
sites.
          Highlight 5:  POTENTIAL MINING
                   WASTE ARARS

   • Where a site contains geologic materials
     containing sulfides, there may be 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 adversely
     affecting aquatic and other resources.  30 CFR
     Part 816.4 requirements that boreholes and
     shafts be sealed to prevent drainage from or
     into ground water may be relevant and
     appropriate to such a site.

   • Where a site is subject to erosion, it is
     vulnerable to  releases of wastes that are
     contaminated  by h«,avy metals.  Revegetation
     requirements found in 30 CFR section 816.111
     may be relevant and appropriate to protect a
     cap at a CERCLA raining site  from erosion and
     to prevent further releases of arsenic or heavy
     metals.
B.   RCRA STANDARDS

     RCRA  section  3001(b)  (known  as  the  Bevill
Amendment)   temporarily   prohibited   EPA   from
regulating, as hazardous waste, the solid waste from  the
extraction and processing of ores and minerals, pending
further study and regulation by the Agency.  Therefore,
Subtitle C  requirements were  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) until  EPA made a
regulatory  determination to  remove a  certain  mining
waste or  waste stream  from  the Bevill Amendment
exclusion. The Bevill Amendment exempted these wastes
from  Subtitle C  requirements  even  if  a waste  would
otherwise be considered a characteristic hazardous waste.
However,  the  mining  wastes  may  come within  the
CERCLA definition of hazardous substances, even if they
do not contain  RCRA hazardous wastes.

     EPA has retained  20 mineral processing wastes as
"special wastes"  (i.e.,  high  volume/low toxicity  wastes)
under  the  Bevill  Amendment exclusion,  which  are
therefore exempt from Subtitle C requirements until a
final regulatory determination is made of their status in
January,  1991 (see 54 Fed. Reg. 36592  (September 1,
1989) and 55 Fed. Reg. 2322 (January 23, 1990)).  .All of
the mineral  processing wastes that  were permanently
removed by EPA from the  Bevill  Amendment exclusion
(i.e., any mineral processing waste other than the above-
referenced 20) are subject to RCRA Subtitle C regulation
if they are solid wastes and exhibit one or more of  the
characteristics of hazardous  waste, or are otherwise listed
as  hazardous wastes  (see  55 Fed.  Reg, 2322,  2323
(January 23,  1990.))  EPA  has listed the following six
smelting wastes  as  RCRA  hazardous  wastes:  KO64,
KO65, KO66,  KO88,  KO90 and  KO91.   Therefore,
RCRA Subtitle C requirements are potential ARARs for
sites containing these  wastes  (see 53 Fed. Reg. 35412
(September 13, 1988)).

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     Whether RCRA Subtitle C requirements arc relevant
and  appropriate for mineral processing wastes  that are
within  the  Bevill  Amendment  exclusion  should  be
determined  on a site-specific basis.   However,  RCRA
Subtitle C requirements are not expected to  be relevant
and appropriate for most of the exempted wastes because
many of the same factors that justified an exemption are
used  to determine  relevance and  appropriateness (see
NCP, 55 Fed.  Reg.  8666, 8763 (March 8, 1990)).
     Mining Bastes that are not currently regulated under
Subtitle C  may be subject to Subtitle D  requirements.
Subtitle D provides performance standards used by States
to set standards acceptable for solid waste facilities and
management  practices.   The   Agency  is  developing
regulations under Subtitle D specifically for those mining
wastes that are not to  be  regulated as hazardous waste.
When promulgated, these regulations may be ARARs for
sites where those mining wastes are present.
                       V.  OTHER RESOURCE PROTECTION STATUTES
     The resource protection laws discussed in this section
contain some substantive  requirements which  may  be
ARARs,  but  the  majority of  their  requirements are
administrative,   such  as  consultation  and   reporting
requirements.  Unlike off-site CERCLA response actions,
on-site  CERCLA investigative and response actions are
not  required to meet administrative requirements (see
NCP,  55  Fed.  Ree.  8666,  S756  (March 8,  1990)).
However, the lead agency should consider consulting with
relevant  Federal,   State, and  local  agencies to  take
advantage of their expertise, when an issue  arises that is
under their jurisdiction (see NCP, 55 Fed. Reg. 8666, 8757
(March 8, 1990)).   Consultation  is most advantageous
when initiated  early in  the process, such as during the
preliminary assessment or site investigation.

A.   NATIONAL  HISTORIC  PRESERVATION  ACT
     (NHPA)

     Pursuant to sections 106 and 110(f) of NHPA, the
lead agency is required to take into account  the effects of
CERCLA response actions on any  historic properties
included  on, or  eligible for inclusion  on  the National
Register of Historic Places.  The National  Register lists
historic properties (known as "cultural resources"), which
consist of districts, sites,  buildings, structures, and objects
that  are  significant in American  history or culture  for
their architectural, archeological,  engineering, or  other
aspects.  For  instance,  the substantive requirement  to
avoid adverse effects on cultural resources, found  in  36
CFR section 800.5(e), is a potential ARAR.

     To comply with potential NHPA ARARs, the lead
agency should  initially determine whether there  are any
possible historic properties located on or near the site, or
within  or near the area  under study in  the remedial
investigation.   For example, many CERCLA sites  could
contain remains of archeological  significance, such  as
American Indian artifacts.   If such  a  possibility seems
likely, the lead agency should first contact the Department
of the  Interior  (DOI),  which  maintains  the National
Register.   Single  copies of the  National  Register  are
available from: National  Register. U.S. Department  of the
Interior, Washington, DC 20240.  Annual updates of new
National Register  listings are published in the Federal
Register each February or March. The Federal Register
will  also  list  properties already  determined by  the
Secretary  of Interior to  be eligible  for  the National
Register.   Finally, information  on National Register
listings  may also be obtained from the State Historic
Preservation  Officers  (SHPOs),  who  are  appointed  by
their respective governors.

     If the site or any portion of the site has not been
determined by the DOI to be eligible for inclusion on the
National Register, the  lead  agency  should make such a
determination.  The regulations at 36 CFR section 60.4
establish  the  criteria   used to   determine  whether
properties qualify for inclusion on the  National Register.
These  criteria are  applied to  properties   through  a
"cultural  resource  survey"  (CRS).    Most  of  the
information  needed  to  complete  the CRS  will  be
developed during the RI/FS.  When cultural resources are
identified, the lead agency evaluates and  considers any
effects upon cultural resources as part of its review of
alternatives  during the  RI/FS,  in  order to avoid  or
minimize  adverse  effects  on these  resources.  See the
CERCLA Compliance with Other Laws Manual. Part II,
Chapter 4 (pp. 4-6 through .4-10)  for further detailed
discussion.  Consultation procedures between EPA, the
Advisory Council,  and SHPOs are being formalized in a
Programmatic Memorandum of  Agreement  (in draft at
the time of this printing).

B.   ENDANGERED SPECIES ACT  (ESA)

     Section 7(a)  of the ESA requires  Federal agencies
to  consult  with  DOI and  the  National Oceanic and
Atmospheric Administration (NOAA), as appropriate, to
ensure that their actions 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 species include direct and
indirect effects, as well as the cumulative effects of other
actions, whether interdependent, interrelated, or located
on another nearby hazardous waste cleanup site.

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    Substantive ARARs under the ESA consist of the
requirements that the lead agency determine whether a
threatened  or endangered  species, or its critical habitat,
will be affected by a proposed response action.  This  is
accomplished through  the  performance of a  biological
assessment.   If such a determination is  made that  a
threatened  species  or  habitat will  be affected  by the
planned action, the  lead agency must avoid the action or
take appropriate mitigation measures.  If at any point the
conclusion  is reached  that endangered species are not
present  or  will not  be affected, no further analysis or
action would be required in order to comply with ESA

    To  determine   whether  the  project  is  likely  to
jeopardize  the continue 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  NOAA for
marine  species.   EPA (Office  of Solid  Waste  and
Emergency Response),  FWS, and NOAA are planning to
formalize consultation procedures for both removal actions
and  on-site  remedial  actions  in  a  Memorandum  of
Understanding (in draft at the time  of this printing).

C.  WILD AND SCENIC  RIVERS ACT (WSRA)

    The WSRA establishes requirements  that apply to
water  resource  projects   affecting  wild,  scenic,  or
recreational rivers within the National Wild antf Scenic
Rivers  System,  as   well as  rivers  designated on the
National Rivers Inventory to be  studied for  inclusion in
the National System.  For  purposes  of the  Act, a project
is   a   dam,   water  conduit,  reservoir,   powerhouse,
transmission line, discharge to waters,  or other water
resources   project  that would affect  the  free-flowing
characteristics  of the water.  If a response action could
affect the free-flowing characteristics of such a river, the
requirement that such  action  should minimize  adverse
impacts may be a potential ARAR.  Response alternatives
should be developed in consultation with  DOI (National
Park Service) and the Department of Agriculture.

D.  FISH  AND WILDLIFE  COORDINATION  ACT
     (FWCA)

    The FWCA protects  fish and  wildlife through the
review of  actions that  control or structurally modify a
natural  stream or  body of water.  A potential ARAR
under the FWCA is  the requirement to consider the effect
that such water-related projects would have upon fish and
wildlife, and take action to prevent loss  or damage to
these lesources. While consultation with FWS  or NOAA
is  required  under CERCLA only if alteration of the water
resource would occur from off-site activities (e.g., a change
in the rate  of flow),  consultation is strongly recommended
for on-site  activities as well.
E.   COASTAL ZONE MANAGEMENT ACT (CZMA)

     The  CZMA regulates actions by Federal  agencies
that  directly affect the coastal zone.  The Act requires
Federal agencies to conduct or support their activities in
a manner consistent with approved State coastal zone
management programs (CZMPs).   The requirement  to
determine whether a response action will have any effect
(whether adverse or not) on the coastal zone of a State
with   an  approved  CZMP   is  a  potential  ARAR.
Specifically,  the lead agency is  required  to determine
whether the activity will be consistent, to  the maximum
extent  practicable, with the State's CZMP.   The  lead
agency  should  notify  the  State  of  its determination.
Copies of a State's CZMP  may  be obtained  from  the
State's  coastal  commission.   All  coastal States have
approved  CZMPs  except  for Georgia,  Texas,  Ohio,
Indiana, Illinois, and Minnesota.  For off-site actions that
require a Federal permit, the State must certify that  the
proposed  activity  complies  with   its  coastal  zone
management plan (see CZMA section 307(c)(3)).

F.   WILDERNESS ACT (WA)

     The  WA  administers wilderness areas to  preserve
their character  and to keep them unimpaired for future
use as wilderness.  To comply with ARARs under  the
WA, the RPM  must first identify  whether the  response
action  would affect designated wilderness  areas (see  16
USC section  1132).  The Regional NEPA Compliance
Staff should be  able to identify these areas.  If a potential
impact is anticipated, the RPM should determine whether
any prohibitions apply to the proposed  response action.
To take advantage of their  expertise, the RPM should
consult with  the NEPA  Compliance Staff  and  the
administering agency to make this determination.  The
RPM should then determine  whether an  exemption is
necessary  under the WA or  CERCLA

G.   NATIONAL  ENVIRONMENTAL  POLICY  ACT
     (NEPA)

     Like the NEPA regulations, the RI/FS and remedy
selection   process  under   CERCLA   provide   for
consideration  of  the  potential   impacts  of CERCLA
response actions on the environment,  and provide for
significant public participation. EPA response actions are
not required to follow procedures in addition to those in
the NCP in order to comply with  NEPA.

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 ARARs Q's and Afs:
Fund Balancing Waiver

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   &EFA
                          United States
                          Environmental Protection
                          Agency
                            Office of
                            Solid Waste and
                            Emergency Response
Publication 9234 2-13/FS

January 1991
ARARs  Q's   &   A's:
The  Fund-Balancing Waiver
Office of Emergency and Remedial Response
Office of Program Management OS-240
                                                        Quick Reference Fact Sheet
    Section 121(d) of CERCLA, as amended by the  1986 Superfund Amendments and Reauthorization Act (SARA),
requires that on-site remedial actions must attain (or waive) Federal and more stringent State applicable or relevant and
appropriate requirements (ARARs) of environmental laws upon completion of the remedial action. The revised National
Contingency Plan of 1990 (NCP) requires compliance with ARARs during remedial actions as well as at completion, and
compels attainment of ARARs during removal actions to the extent practicable, considering the exigencies of the situation.
See NCP, 40 CFR section 300.415(i) (55 FR 8666, 8843)  and section 300.435(b)(2) (55 FR 8666, 8852) (March 8, 1990).

    To implement the ARARs provisions, EPA has developed guidance, CERCLA Compliance With Other Laws Manual:
Parts I and II (Publications 9234.1-01 and 9234.1-02), and  has provided training to Regions and States on the identification
of and compliance with ARARs.  These "ARARs Q's and A's" are part of a series of Fact Sheets  that provide guidance on
a number of questions  that arose in developing ARARs policies, in ARARs training sessions,  and in identifying and
complying with ARARs at specific sites. This particular Q's and A's Fact Sheet addresses the Fund-balancing waiver, which
is one of six statutory waivers that may be invoked to allow the selection of a remedy that does  not meet all ARARs.
Ql.  What is  the Fund-balancing waiver?  How does it
     work?

A:   The Fund-balancing waiver is one of the six statutory
     waivers  that  may  be  invoked  under specified
     circumstances  to allow selection of a remedy that
     does not meet all ARARs (see CERCLA  Section
     121(d)(4)(F)).  A waiver based on Fund balancing
     first appeared  in the  1985 NCP at 40 CFR section
     300.68(i)(5)(ii).  The concept  of a Fund-balancing
     waiver was codified by the Superfund  Amendments
     and Reauthorization  Act of  1986 (SARA), which
     amended  the  Comprehensive Environmental Re-
     sponse, Compensation, and  Liability  Act of 1980
     (CERCLA) (see Highlight 1 for  specific statutory
     language and citation).

     The Fund-balancing waiver may apply when the costs
     needed to meet an ARAR for an action would be so
     high as to  threaten the availability of Fund monies
     for remedies at other sites (see Preamble to the NCP,
     55 FR 8666, 8750). Highlight 2 provides an example
     of the Fund-balancing waiver.  The waiver applies
     only to  Fund-financed remedial actions  under
     CERCLA Section 104.  Even when the waiver is in-
     voked, the alternative remedy selected must still be
     protective of human health and the environment and
     meet all  other  standards  (e.g., cost-effectiveness,
     permanent solutions, etc.).  (See  Preamble  to the
     NCP, 55 FR 8666, 8750.)  Regions should consult
     with Headquarters when considering  use  of this
     waiver.
                           Q2.  What is the purpose of the Fund-balancing waiver?

                           A:   The purpose of this waiver is to ensure that EPA's
                                ability to  carry  out  a comprehensive  national
                                response  program  is  not   compromised  by a
                                disproportionately  high  expenditure at  a  single
                                Superfund site.
                                  Highlight 1:  STATUTORY LANGUAGE

                                Section 121(d)(4)(F) of CERCLA, as amended,
                              states that a remedial action not meeting an
                              ARAR may be selected if:

                                "in  the case of a remedial action to be
                                undertaken solely under Section 104 using
                                the Fund, selection of a remedial action that
                                attains such level or standard of control will
                                not provide a balance between the need for
                                protection of public health and welfare and
                                the environment at the facility under con-
                                sideration, and the availability of amounts
                                from the Fund to respond to other sites
                                which present or may present a threat to
                                public health or welfare or the environment,
                                taking into consideration the relative
                                immediacy of such threats."

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           Highlight 2:  EXAMPLE OF THE
            FUND-BALANCING WAIVER

      At site X, a State water-quality standard was
  identified as an ARAR.  Attaining this State
  standard would have required the removal and off-
  site disposal of millions of cubic yards of
  contaminated sediments in the streams and
  reservoir, at an estimated cost of more than $1
  billion. The cost of attaining the ARAR exceeds
  the threshold of four times the cost of a typical
  operable unit, and thus, the Fund-balancing waiver
  was considered.  Based on an assessment of the
  Fund, and needs at other sites, the Agency decided
  to invoke the waiver.  The waiver allowed  selection
  Of an alternative remedy that involved partial
  capping and surface-water diversion at a fraction of
  the original cost, while still achieving protectiveness
  and complying with other ARARs.
Q3.  When  should   the   Fund-balancing  waiver   be
     considered?   Is there an  absolute  threshold for
     invoking the waiver?

A.   The  Fund-balancing waiver is to be routinely con-
     sidered when the cost of meeting an ARAR for an
     operable unit is four times the national average cost
     of remediation of all operable units.  (See Preamble
     to the NCP, 55 FR 8666, 8750.)  However, there is
     no set amount at which the waiver must be invoked.

     Currently the threshold for considering the waiver is
     4 x S14.4 million, or $57.6 million.  This average cost
     for an operable unit is based on the Outyear Liability
     Model (OLM),  which  is EPA's approach to esti-
     mating its long-term resource needs.  The average
     cost  figure was  developed through an analysis of
     nearly 200 Records of Decision (RODs) that have
     been signed since the passage of SARA (i.e., FY 1987
     to present).  As a  group, this body of documents is
     the most comprehensive and representative source of
     remedial  action  cost estimates available within the
     Agency. The OLM average cost of an operable unit
     is reported in the FY 1989 Superfund Annual Report
     to  Congress.    (Revisions  will  be  reported  in
     subsequent Annual Reports and also made available
     to Regions through subsequent fact sheets.)

Q4.  Does the waiver  have to be invoked when the costs of
     meeting an ARAR  are estimated to exceed the dollar
     threshold?

A.   No.  Exceeding the threshold establishes a presump-
     tion that the waiver should be considered, but does
     not require that it be invoked. In instances where the
     threshold is reached but the Fund-balancing waiver is
     not  invoked, either the ROD or the Administrative
     Record should document the fact that the waiver was
     considered and provide the rationale. For example,
     the  Region  might  determine that the cost  of
     performing this remedy is not so disproportionately
     high as to threaten the availability of the Fund to
     respond to other sites that may present a threat to
     human health and the environment.

Q5.  Can the  Fund-balancing  waiver  be invoked even
     when the cost threshold is not exceeded?

A,   Yes.   EPA has reserved  the  right  to  invoke this
     waiver in specific situations when the cost of meeting
     the ARAR is expected  to fall below the threshold
     but  EPA has  determined that the  single  site
     expenditure would place a disproportionate burden
     on the Fund. (See Preamble  to  the NCP, 55 FR
     8666, 8750.)

Q6.  Is the waiver available for other Federal agencies or
     potentially responsible parties  (PRPs)?

A.   No. CERCLA Section 121(d)(4)(F) clearly restricts
     use  of this waiver to  remedial actions conducted
     under CERCLA Section 104  and financed by the
     Fund.  The waiver is unavailable to other Federal
     agencies or PRPs, which use other monies for their
     CERCLA activities. (See also Preamble to the NCP,
     55 FR 8666, 8750.)

Q7.  Most remedies have to comply with more than one
     ARAR.   If  the  Fund-balancing  waiver is being
     considered, which ARAR should be waived?

A.   The ARAR  that  increases  the potential remedial
     action  costs  by the threshold amount should be
     considered for the Fund-balancing waiver. However,
     the remedial action must comply with other ARARs
     that do not excessively raise the cost of remediation.

Q8.  Can the Fund-balancing waiver be used with other
     waivers?

A.   Yes. For example, the Fund-balancing waiver could
     be used to waive an excessively expensive ARAR at
     the same site where it is necessary to waive another
     ARAR because of technical impracticability.

Q9.  Can the Fund-balancing waiver be used for removal
     actions?

A,   In theory, yes, but this is highly unlikely given the
     monetary limits and limited scope of removal actions.
     It is more likely that compliance with an excessively
     expensive ARAR for  a removal action would be
     determined to be beyond the scope of the action, and
     therefore impracticable under the NCP. (See NCP at
     40 CFR section 300.415(i)(2)  and Preamble to the
     NCP, 55 FR 8666, 86%.)

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Q10. Can the Fund-balancing waiver be invoked only at
     Fund-lead orphan sites (i.e., sites where no PRPs
     have been identified)?

A.   No.  The Fund-balancing waiver may also be invoked
     at a  Fund-lead site  where  PRPs exist and  may
     potentially settle.  However, if PRPs do settle and
     subsequently take over the project, they cannot take
     advantage of the waiver — the action will no longer
     be solely funded under Section 104 and the Fund-
     balancing  waiver  will no   longer  be  available.
     Likewise,  the  waiver is  not  available for mixed-
     funding cases involving contributions by both PRPs
     and the Fund.  Therefore, where  circumstances for
     settlement with PRPs potentially  exist, the Region
     should anticipate  this possibility by  including a
     contingent remedy (without the waiver) in the ROD.
     If such a contingent remedy has not been included in
     the ROD, and a settlement with PRPs is reached, the
     ROD should be amended to remove the waiver or an
     Explanation of Significant Differences (ESD) should
     be issued.  The ROD should be amended if removing
     the  waiver  would  fundamentally alter the  basic
     features of the selected remedy.   (See NCP at 40
     CFR section 300.435 (c)(2)(ii) and Preamble to the
     NCP, 55 FR 8666, 8771-8772.)   An ESD may be
     issued if removing the waiver significantly changes,
     but does not fundamentally alter, the remedy selected
     in  the ROD.    (See NCP  at  40  CFR section
     300.435(c)(2)(i) and  Preamble to  the  NCP, 55 FR
     8666, 8770-8772.)

Qll. If the Fund-balancing waiver has not been invoked in
     the ROD because a PRP settlement was anticipated,
     can it be subsequently invoked if no settlement ever
     occurs?
A.   Yes.  If a  settlement with PRPs is not reached, and
     the remedy  will be performed using Fund monies
     under  CERCLA Section  104, the Fund-balancing
     waiver can be invoked by a ROD  amendment or, in
     appropriate  cases, an ESD.

Q12. Will the answer to the previous questions ever lead
     to an incentive for PRPs not to settle?

A.   It could.  However, the statute is clear that the Fund-
     balancing  waiver is available only  for Fund-financed
     actions. Of course, if such an incentive not to settle
     exists, PRPs may be encouraged to settle through the
     issuance  of a  unilateral  order  and  the  resulting
     possibility  of fines   and  treble  damages.    (See
     CERCLA Sections 106 and 107(c)(3).)

Q13. If a remedy is undertaken solely using the Fund, and
     the Fund-balancing waiver is invoked, can the Agency
     later bring an action to recover its costs?
A.   Yes.  The fact that the statute allows EPA to select
     a remedy made less expensive by the waiver does not
     affect the  right of the Agency to be reimbursed  later
     under CERCLA Section 107  for the  costs of that
     remedy.
Q14. What  language  should  be used in the ROD  for
     invoking the Fund-balancing waiver?
A.   Highlight 3 provides sample language for various
     sections of the ROD. This language is based on the
     hypothetical site circumstances presented in High-
     light 2 of this fact sheet and a hypothetical  State
     law. For additional language, see Guidance on Pre-
     paring Superfund Decision Documents (the "ROD
     Guidance"), EPA/540/G-89/007, July 1989, page 6-5.
      Highlight 3: SAMPLE ROD LANGUAGE

  Sample language for the Statutory Determina-
  tions Section (of the Declaration):

     The selected remedy is protective of human
     health and the environment, complies with or
     meets the requirements for a waiver of Federal
     and State requirements that are legally
     applicable or relevant and appropriate to the
     remedial action, and is cost-effective.  This
     remedy utilizes permanent solutions	

  Sample language for the Description of Alterna-
  tives Section (of the Decision Summary):

     The first remedial alternative, which involves
     the removal and off-site disposal of
     contaminated stream sediments, complies with
     the State water-quality standard at Reg. Sec.
     X.100, because it ensures that stream water
     contaminant levels will not exceed .001 ppm.
     The State water-quality standard is applicable
     to this remedial alternative because the
     standard requires maintenance of all in-State
     streams, reservoirs, and lakes at health-based
     levels, as established in State regulations at
     Sec. X100.

     The second remedial alternative, which
     involves partial capping and surface-water
     diversion, justifies a waiver of the State water-
     quality standard found at Reg. Sec. X.100,
     based on the Fund-balancing waiver found in
     CERCLA Section 121(d)(4)(F) and NCP
     section 300.430(f)(l) (ii)(C)(6). Attaining the
     State water-quality standard for this operable
     unit (as contemplated by  the first remedial
     alternative) would cost more than SI billion.
     EPA has determined that this site expenditure
     would not provide a balance between  the need
     for protection of human health and the
     environment at this site, and the availability  of
     Fund monies to respond to other sites that
     may present a threat to human health and the
     environment.

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    Highlights-. SAMPLE ROD LANGUAGE
                (CONTINUED)

Sample language for the Summary of Comparative
Analysis of Alternatives Section (of the Decision
Summary):

   EPA has determined that each remedial
   alternative is protective of human health and
   the environment, and complies with (or
   justifies a waiver of) applicable or relevant and
   appropriate requirements.

Sample language for the Statutory Determinations
Section (of the Decision Summary):

   The selected remedy complies with or waives
   all Federal and State ARARs.  The State
   water-quality standard was waived for surface-
   water cleanup at this site because attainment of
   this requirement would cost more than $1
   billion, which would not provide a balance
   between the need for protection of human
   health and the environment at this  site and the
   availability of Fund monies to respond to other
   sites that may present a threat to human health
   and the environment.  (See CERCLA Section
   121(d)(4)(F) and the NCP, 40 CFR section
   300.430(f)(l)(ii)(C)t6).)
                    *****

NOTICE:  The policies set out in this fact sheet are
intended solely as guidance. 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 the guidance provided in this
fact sheet, or to act at variance with the guidance, based
on an analysis of site-specific circumstances. The Agency
also reserves the right to change this guidance at any time
without public notice.

                    *****

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A Guide to Selecting Superfund Remedial Actions

-------
                            United States
                            Environmental Protection
                            Agency
                             Off ice of
                             Solid Waste and
                             Emergency Response
            Directive: 9355.0-27FS

                        April 1990
        &EPA
A Guide to Selecting
Super-fund Remedial  Actions
  Office of Emergenef-JandJIernecSal Response
  Hazardous Site Control Division OS-220
                                                           Quick Reference Fact Sheet
INTRODUCTION

    The Superfund program's rem-
edy selection process is the decision-
making bridge between the analy-
sis of remedial alternatives for clean-
ing up a site conducted in a remedial
investigation/feasibility -study (RI/
FS) and the  explanation of the se-
lected remedy that is documented
in a Record of Decision (ROD). This
fact sheet describes statutory re-
quirements for CERCLA remedies
and the process EPAhas established
in the 1990 revised National Con-
tingency Plan (55 FRSfififi (3/8/90))
for meeting  these requirements.
This process is a general framework
for reaching a judgment as to the
most appropriate method of achiev-
          ing protection of human health and
          the environment at a particular site.
          This framework can be streamlined
          as appropriate to the site.
          STATUTORYREQUTHEMENTS

              Section 121 of CERCLA man-
          dates that the remedial action must:

          1.  Protect human health and the
              environment;

          2.  Comply with applicable or rele-
              vant and appropriate require-
              ments (ARARs) unless a waiver
              is justified;

          3.  Be cost-effective;
4.  Utilize permanent solutions and
    alternative treatment technolo-
    gies or resource recovery tech-
    nologies to the maximum ex-
    tent practicable;

5.  Satisfy the preference for treat-
    ment as a principal element, ox
    provide an explanation in the
    ROD why the preference was
    not met.

    EPA has established a national
goal  and  expectations  reflecting
these requirements in the 1990 NCP
(Sec. 300.430(aXlXi) and (iii).  The
NCP also defines nine criteria that
are to be used to compare remedial
alternatives, to establish the basis
for the selection decision, and to
  EXHIBIT 1: PROGRAM EXPECTATIONS

  Protection of human health and the environment can be achieved
  through a variety of method*: treatment to destroy or reduce the
  inherent hazards posed by hazardous substances, engineering con-
  trols (such as containment), and institutional controls to prevent ex-
  posure to hazardous substances.  The NCP sets out the types of
  remedies that  are expected to result  from the remedy selection
  process (Sec. 300.430(aXlXiii)).

  >•  Treat principal threats, wherever practicable. Principal threats
     for which treatment is most likely to be appropriate are
     characterized as:

    - Areas contaminated with high concentrations of toxic com-
      pounds;

    - Liquids and other highly mobile materials;

    - Contaminated media (e.g., contaminated ground water,
      sediment, soil) that pose significant risk of exposure; or

    - Media containing contaminants several orders of magni-
      tude above health-based levels.

  > Appropriate remedies often will combine treatment and con-
    tainment.   For a specific site, treatment of the  principal
    threatU) may be combined with containment of treatment
    residuals and low-level contaminated material.
                                Containment will be considered for wastes that pose a relatively
                                low long-term threat or where treatment is impracticable. These
                                include wastes that are near health-based levels, are substan-
                                tially immobile, or otherwise can be reliably contained over long
                                periods of time; wastes that are technically difficult to treat or
                                for which treatment is infeasible or unavailable; situations
                                where treatment-based remedies would result in greater over-
                                all risk to the human health or the environment durin g i implem-
                                entation due to potential explosiveness, volatilization, or other
                                materials handling problems; or sites that are extraordinarily
                                large where the scope of the problem may make treatment of all
                                wastes impracticable, such as municipal landfills or mining
                                sites.

                                Institutional controls are most useful as a supplement to engi-
                                neering controls for short- and long-term management. Institu-
                                tional controls (e.g. deed restrictions, prohibitions of well con-
                                struction) are important in controlling exposures during reme-
                                dial action  implementation and as a supplement to long-term
                                engineering controls. Institutional controls alone should not
                                substitute for more active measu res (treatment or containment)
                                unless such active measures are found to be impracticable.

                                Innovative  technologies should be considered if they offer the
                                potential for comparable or superior treatment performance,
                                fewer/lesser adverse impacts, or lower costs for similar levels of
                                performance than demonstrated technologies.

                                Ground waters will be returned to their beneficial uses within
                                reasonable periods of time wherever practicable.
                                                                                                 April 1990-1

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K«y Step* In
                               Exhibit 2
                                      of R*m*dJ«l Alt*rn«tlv««
       Develop Prefcminary Remediation Ooakl
             Health-based remediation goal* (« 9 . 10.-* excess cancer re* i
             point at departure. ARARs: resulting m X ppm

                 on unlimited exposure tor relevant lend use
                             Deterrrane srees of contamination
                             that require remedial action
       Identity Prmcpal Threats that ml* Candidates for Treatment

       •  Treel bqu«ts, highly to»c materials, taghty mobee materials
                               Exception* include large municaMl
                               landf >ta, areas mrbere contamnants
                               are inaccessible, or other srtuaMns
                               •here treatment <* not implemented
       Idennty Lew-level Threats that are Candidate* tor Containment
       Contain Treatment
       Residua* and
       Remaining Material
                   ExcspMons

                   • SmaJ volumes
                   • Senertive exposure
                   • Containment unrdable
                                       _L
       loentrh/Remedial
       AHernatMea lor
       Detailed Analyse*
       and Remedy
       Selection
          Partialy Treat

          • Treat to levels that can
           Be reliably contained
Fully Treat

• Treat to levels tor
 which inriis
demonstrate that statutory require-
ments have been satisfied  (Sec.
300.430(0(1)).   Each  of these  as-
pects of EPA's  remedy  selection
approach are described below.
GOAL  AND EXPECTATIONS
OF THE REMEDY SELECTION
PROCESS

    The national goal of the remedy
selection process is "to select reme-
dies that are protective of human
health and the environment, that
maintain protection over time, and
that  minimize untreated waste"
(NCP Sec. 300.430(a)(lXi)).
                            While  protection  of  human
                        health and the environment can be
                        achieved through a variety of meth-
                        ods, this goal reflects CERCLA's em-
                        phasis  on  achieving  protection
                        through the aggressive, but realis-
                        tic use of treatment. The 1990 NCP
                        presents EPA's expectations regard-
                        ing  circumstances  under which
                        treatment, as well as engineering
                        and institutional controls, are most
                        likely  to  be  appropriate  (Sec.
                        300.430(aXlXiii), see  Exhibit 1).
                        These expectation s are intended pri-
                        marily to assist in focusing the de-
                        velopment of alternatives in the FS
                        (see The Feasibility Study: Devel-
                        opment and Screening of Alterna-
                        tives,  OSWER  Directive  9355.3-
01FS).  These expectations do not
substitute for site-specific balanc-
ing of the nine criteria to determine
the maximum extent to which treat-
ment can be practicably used in a
cost-effective manner for a operable
unit.

    Exhibit 2 illustrates the alter-
natives  development process,  as
shaped by the expectations.  The
process begins with the  identifica-
tion  of preliminary  remediation
goals,  which  provide initial esti-
mates of the  contaminant concen-
trations/risk levels of concern. Based
on ARARs, readily available toxic-
ity information, and current and fu-
ture land use, preliminary remedia-
tion  goals are initial health-based
levels and are used to define site ar-
eas that may require remedial  ac-
tion  (i.e., action areas).  Areas on-
site  with contaminant concentra-
tions several orders of magnitude
(e.g., 2) above these preliminary re-
mediation goals  are candidate  ar-
eas for treatment. Areas onsite with
contaminant concentrations within
several orders of magnitude of these
preliminary remediation goal levels
are candidate areas for containment.
The remediation goals, action  ar-
eas, and target treatment/contain-
ment areas are refined throughout
the RI/FS process as additional in-
formation becomes  available.  The
final determination of remediation
goals, action areas, and the appro-
priate degree of treatment and con-
tainment are made as part of the
remedy selection.
                           THE REMEDY SELECTION
                           PROCESS

                           Overview

                               The remedy selection  process
                           begins with the identification of a
                           preferred alternative from among
                           those evaluated in detail in the FS
                           by the lead agency, in consultation
                           with  the support agency. The pre-
                           ferred alternative is presented to
                           the public in a Proposed Plan that is
 2 - OSWER Directive 9355.0-27FS

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  EXHIBITS: NINE EVALUATION
              CRITERIA

      EPA has developed nine criteria to
  be used to evaluate remedial alterna-
  tives to ensure all important considera-
  tions are factored into remedy selection
  decisions.  These criteria are derived
  from the statutory requirements of
  Section 121, particularly the long-term
  effectiveness and related considerations
  specified utSection 121(bXl), as well as
  other additional technical and policy
  considerations that have proven to be
  important for selecting among remedial
  alternatives.

  Threshold Criteria

      The two most  important criteria
  are statutory requirements that must
  be satisfied by any alternative in order
  for it to be eligible for selection.

  1.  Overall protection of human health
      and the environment addresses
      whether or not a remedy provides
      adequate protection and describes
      how  risks  posed through each
      exposure pathway (assuming a rea-
      sonable maximum exposure) are
      eliminated, reduced, or controlled
      through treatment,  engineering
      controls, or institutional controls.

  2.  Compliance with applicable or rele-
      vant and appropriate requirements
      (ARARs) addresses whether a rem-
      edy will meet all of the applicable
    or relevant and appropriate require-
    ments of other Federal and State
    environmental laws or whether a
    waiver can be justified.

Primary Balancing Criteria

    Five primary balancing criteria are
used to identify major trade-offs between
remedial alternatives.  These trade-offs
are ultimately balanced to identify the
preferred alternative and to select the final
remedy.

1.  Long-term  effectiveness   and
    permanence refers to the ability of a
    remedy to maintain reliable protec-
    tion of human health and the envi-
    ronment over time, once cleanup goals
    have been met.

2.  Reduction  of toxicity,  mobility, or
    volume through treatment is the an-
    ticipated performance of the treat-
    ment  technologies a remedy may
    employ.

3.  Short-termeffectivenessaddresseethe
    period of time needed to achieve pro-
    tection and any adverse impacts on
    human health and the environment
    that may be posed during the con-
    struction and implementation period,
    until cleanup goals are achieved.

4.  Implementability is the technical and
    administrative feasibility of a rem-
    edy, including the availability of ma-
    terials and services needed to imple-
    ment a particular option.
5.  Cost includes estimated capital and
    operation and maintenance costs, and
    net present worth costs.

Modifying Criteria

    These criteria may not be considered
fully until after the formal public comment
period on the Proposed Plan and RI/TS
report is complete, although EPA  works
with the State and community throughout
the project.

1.  State acceptance addresses the sup-
    port agency's comments. Where the
    State or other Federal agency is the
    lead agency, EPA's acceptance of the
    selected remedy should be addressed
    under this criterion. State views on
    compliance with State  ARARs are
    especially important.

2.  Community acceptance  refers to the
    public'sgeneral response to the alter-
    natives describedin the Pro posed PI an
    and the RI/FS report.

     The 1990 NCP at  55  FR 8719-23
describes how the detailed analysis of al-
ternatives is to be performed using these
criteria. The detailed analysis is the infor-
mation base upon which the remedy selec-
tion decision is made. Chapter 7 of the
Interim Final Guidance for Conducting
Remedial Investigations  and Feasibility
Studies Under CERCLA" (October 1988)
provides further detail on the process.
issued for comment along with the
RI/FS.  Upon receipt of public com-
ments on the Proposed  Plan, the
lead agency consults with the sup-
port agency to determine if the pre-
ferred alternative remains the most
appropriate remedial action for the
site or operable unit.   The  final
remedy is selected and documented
in a Record of Decision.

Considering the Nine Criteria

    The identification of a preferred
alternative and final selection of a
remedy is derived from considera-
tion of nine evaluation criteria in
three major steps,  as described in
the     1990     NCP      (Sec.
300.430(f>( D(iiXE)). The nine crite-
ria are presented in  Exhibit 3. The
steps in which the criteria are con-
sidered are depicted in  Exhibit 4
and discussed below.
Threshold Criteria

    The first step of remedy selec-
tion is to identify those alternatives
that satisfy the threshold criteria.
Only those alternatives that pro-
vide adequate protection of human
health  and the environment and
comply  with  ARARs  (or justify a
waiver) are eligible for selection.
Alternatives that do not satisfy the
threshold criteria should  not  be
evaluated further.

Primary Balancing Criteria

    The second step  involves the
balancing of tradeoffs among pro-
tective  and ARAR-compliant alter-
natives with respect to the five pri-
mary balancing criteria (and modi-
fying criteria,  if known).  In this
step, alternatives are compared with
each other based on their long-term
effectiveness  and  permanence, re-
duction in toxicity, mobility, or vol-
ume achieved through treatment,
implementability, short-term effec-
tiveness, and cost. The sequence in
which the criteria are generally con-
sidered, and pertinent  considera-
tions related to each, are noted be-
low.

1.  Long-term  effectiveness  and
    permanence is a major theme of
    CERCLA  Section   121,  and,
    therefore, is one of the two most
    important criteria used during
    remedy selection to  determine
    the maximum extent to which
    permanence and treatment are
    practicable.   This factor  will
    often be decisive where alterna-
    tives vary significantly in the
    types  of residuals   that  will
    remain onsite and/or their re-
    spective long-term management
    controls.
                                                                                                     April 1990 - 3

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                              Exhibit 4
        THRESHOLD
        CRITERIA
       BALANCING
       CRITERIA
                           Alternatives
                          from Screening,
                         Based on Program
                           Expectations
Evaluate:
• Long-tenn Effectiveness
• Reduction of T.M.V.
• Short-term Effectiveness
• Imptementabtlity
• Cost
                      Choose Preferred Alternative:
                      • Balancing across Criteria
                      • Emphasize Long-Term
                        Effectiveness and Reduction of
                        T.M.V.
       MODIFYING
       CRITERIA
Proposed Plan Issued for Comment

State and
Community
Acceptance


i

Selected Remedy
2.  Reduction in the toxicity, mobil-
    ity, or volume of contaminants
    achieved through the applica-
    tion of treatment technologies
    is the other criterion that will
    be emphasized during remedy
    selection in determining the
    maximum extent to which per-
    manent solutions and treatment
    are practicable.  Remedies that
    use treatment to address mate-
    rials comprising the  principal
    threats posed by a site are pre-
    ferred over those that do not.
    Treatment as part of CERCLA
    remedies  should generally
    achieve  reductions of 90  to 99
    percent in the concentrations or
                  mobility of individual contami-
                  nants of concern.  There will,
                  however, be situations where
                  reductions outside the 90 to 99
                  percent range will be appropri-
                  ate to achieve site-specific  re-
                  mediation goals.

              3.  The short-term effectiveness of
                  an alternative includes consid-
                  eration of the time required for
                  each alternative to achieve pro-
                  tection, as well as adverse short-
                  term impacts that may be posed
                  by their implementation. Many
                  potential adverse impacts can
                  be  avoided  by  incorporating
                  mitigative steps into the alter-
    native.  Poor short-term effec-
    tiveness can weigh significantly
    against an option and can, in
    fact, result in  an alternative
    being rejected as unprotective if
    adverse impacts cannot be ade-
    quately mitigated.

4.  Implementability is particularly
    important for evaluating reme-
    dies at sites with highly hetero-
    geneous wastes or media that
    make the performance  of cer-
    tain technologies highly uncer-
    tain.  Implementability  is also
    significant  when evaluating
    technologies that are less proven
    and remedies that are depend-
    ent on a limited supply of facili-
    ties (e.g.,TSCA-permitted land
    disposal  facility), equipment
    (e..g.,in-situ vitrification units),
    or experts.

5.  Cost may play a significant role
    in selectingbetween options that
    appear comparable with respect
    to  the other criteria, particu-
    larly long-term effectiveness and
    permanence, or when choosing
    among treatment options that
    provide similar performance.
    Cost generally will not be used
    to  determine whether  or  not
    principal threats will be treated,
    except under  special circum-
    stances that make treatment
    impracticable  (see  expecta-
    tions). Cost can never be used to
    pick a remedy that is not protec-
    tive.

Modifying Criteria

    If known at the completion of
the RI/FS, state (support agency)
and community acceptance of the
alternatives should be considered
with the  results of the  balancing
criteria evaluation to identify the
preferred alternative.   After  the
public comment period,  state and
community acceptance are again
considered, along with any new in-
formation, and may prompt modifi-
cation of the preferred alternative.
4 - OSWER Directive 9355.0-27FS

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                                            Exhibit 5
                  Relationship of the Nine Criteria to the Statutory Findings
                         NINE CRITERIA
                  J
STATUTORY FINDINGS
J
                 PROTECTION OF HUMAN HEALTH
                 AND THE ENVIRONMENT
                    ->• PROTECTION OF HUMAN HEALTH
                        AND THE ENVIRONMENT
                 COMPLIANCE WITH ARARs
                 LONG-TERM EFFECTIVENESS
                 AND PERMANENCE

                 TOXICITY, MOBILITY. OR
                 VOLUME REDUCTION
                 THROUGH TREATMENT

                 SHORT-TERM EFFECTIVENESS
                  IMPLEMENTABILITY
                 COST
                 STATE AGENCY ACCEPTANCE

                 COMMUNITY ACCEPTANCE
                        COMPLIANCE WITH ARARs OR
                        JUSTIFICATION OF A WAIVER
                        COST-EFFECTIVENESS
                        UTILIZATION OF PERMANENT
                        SOLUTIONS AND TREATMENT OR
                        RECOVERY TO THE MAXIMUM
                        EXTENT PRACTICABLE CMEP")
                                                          PREFERENCE FOR TREATMENT
                                                          AS A PRINCIPAL ELEMENT OR
                                                          EXPLANATION AS TO WHY
                                                          PREFERENCE NOT SATISFIED
Identification of a Preferred
Alternative

   Once the relative performance
of the protective and ARAR-compli-
ant alternatives under each crite-
rion has been established, prelimi-
nary determinations of which op-
tions are cost-effective and which
alternatives utilize  permanent so-
lutions and treatment technologies
to the maximum extent practicable
are made to identify the preferred
alternative.  Exhibit 5  illustrates
the relationship between the nine
criteria and the  statutory require-
ments for remedy selection.

   Cost-effectiveness is determined
by comparing the costs of all alter-
natives being considered with their
overall effectiveness to  determine
whether the costs are proportional
to the effectiveness achieved. Over-
all effectiveness  for  the purpose of
this determination includes long-
term effectiveness and permanence;
reduction of toxicity, mobility, and
volume  through treatment;  and
short-term effectiveness. More than
one alternative can be cost-effec-
tive.

   The determination of which cost-
effective alternative utilizes perma-
nent solutions and treatment to the
maximum extent practicable is a
risk management judgment made
by the decisionmaker who balances
the tradeoffs  among the alterna-
tives with respect to the balancing
criteria (and modifying criteria to
the extent they are known). As a
general rule, those criteria that dis-
tinguish the alternatives the most
will be the most decisive factors in
the balancing.  See Exhibit 6 for a
summary of criteria likely to be im-
portant in certain site situations.
The alternative determined to pro-
          vide the best balance of trade-offs,
          as considered in light of the statu-
          tory mandates and preferences, as
          well as the NCP goal and expecta-
          tions, is identified as the preferred
          alternative  and presented to the
          public for comment in a Proposed
          Plan.

          Final Selection of Remedy

             Upon receipt of public  com-
          ments, the preferred alternative is
          reevaluated in light of any new in-
          formation that has become avail-
          able, including State and commu-
          nity acceptance, if previously un-
          known. This new information should
          be considered to determine whether
          an option other than the preferred
          alternative better fulfills the statu-
          tory requirements.  The decision-
          maker's  final judgment is docu-
          mented in a Record of Decision.
                                                                                      ApriZ 7990 - 5

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                                                           Exhibit 6
                                 EXAMPLES OF PROMINENT CRITERIA AND EXPECTATIONS
                                              FOR SELECTED SITE SITUATIONS
                 SITUATION
  Small area of high levels of toxic contaminants
  (e.g., lagoon, hot spoU)
  Highly mobile contaminant* (e.g., liquids, vola-
  tiles, metals)
  Very large volume of material contaminated
  marginally above health-baaed levels (e.g., mine
  tailings one order of magnitude above health-
  baaed levels in soil)
  Complex mixture  of  heterogeneous waste
  without discrete hot spots (e.g., heterogeneous
  municipal landfill waste)
     PROMINENT CRITERIA

Long-term effectiveness.
Reduction of toxicity, mobility, or vol-
ume through treatment

Long-term effectiveness,
Reduction of mobility through treat-
ment

Implementability,
Cost
Implementability,
Short-term effectiveness,
Cost
  Soils contaminated with high concentrations     Long-term effectiveness,
  of VOCs                                      Short-term effectiveness
  Contaminated ground water
Long-term effectiveness,
Short-term effectiveness
     EXPECTED RESULT OF
               SELECTION*
Treatment is preferred when highly toxic mate-
rial is a principal threat at a site
Treatment is preferred  when highly mobile
material is a principal threat at a site
Containment may afford high level of long-term
effectiveness; treatment may be difficult to im-
plement because of insufficient treatment ca-
pacity for large volume of material, and cost of
treatment may be prohibitive due to large scope
of site

Treatment of heterogeneous waste often diffi-
cult  or infeasible,  reducing Implementability;
containment avoids short-term impacts and un-
certainties associated with excavation; cost of
treatment may be prohibitive

In-situ treatment may be preferred over excava-
tion because of negative short-term impacts and
high cost of excavation

Ground waters should be returned to beneficial
use as soon as is practicable
  * These are only examples and have been highly simplified for illustration purposes. They are not intended to prescribe certain remedies
    for certain situations.
 NOTICE: The policies set out in this memorandum are intended solely for the guidance of Government penonnel. They are not intended, nor can they be relied
 upon, to create any righto enforceable by any party in litigation with the United States.  EPA officials may decide to follow the guidance provided in thu
 memorandum, or to act at variance with the guidance, based on an analysis of specific nte circumtances. Remedy selection decisions are made and justified on
 a case-specinc basis. The Agency also reserves the right to change this guidance at any time without public notice.
6 - OSWER Directive 9355.0-27FS

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CERCLA Compliance With Other Laws Manual
CERCLA Compliance with State Requirements

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                          United States
                          Environmental Protection
                          Agency
                          Office of
                          Solid Waste and
                          Emergency Response
Publication 9234.2-05/FS
December 1989
       &EPA
CERCLA Compliance With Other  Laws Manual
CERCLA  Compliance
with   State  Requirements
Office of Emergency and Remedial Response
Office of Program Management OS-240
                                                    Quick Reference Fact Sheet
     The 1986 Superfund Amendments and Reauthorization Act (SARA) adopts and expands a provision in the 1985
 National Contingency Plan (NCP) that remedial actions must  at least attain applicable or relevant and appropriate
 requirements (ARARs). Section 121(d) of CERCLA, as amended by SARA, requires attainment of Federal ARARs and
 of State ARARs in State environmental or facility siting laws when the State requirements are promulgated, more
 stringent than Federal laws, and identified by the State in a timely manner.

     To implement the ARARs provision, EPA has developed guidance, CERCLA Compliance With Other Laws Manual:
 Parts I and II (Publications 9234.1-01 and 9234.1-02). EPA is preparing a series of short fact sheets that summarize these
 guidance documents.  This fact sheet provides a guide to Chapter 6 of Part II, which addresses CERCLA compliance with
 State requirements. The material covered here is based on SARA and on policies in the proposed revisions to the NCP.
 The final NCP may adopt policies different from those covered  here and should, when promulgated, be considered the
 authoritative source.
 I.   INTRODUCTION TO STATE ARARs

     Prior  to  SARA,  the  NCP classified  all State
 requirements as criteria that  EPA should consider when
 selecting a remedy. The amendments elevated to the level
 of potential ARARs any "promulgated" State requirements
 that are "more stringent" than Federal requirements (see
 Highlight 1 for specific  criteria).
        Highlight 1:  CRITERIA FOR A STATE
     REQUIREMENT TO QUALIFY AS AN ARAR

   In order to qualify as a State ARAR, a State
   requirement should be:

   •  A State law;

   •  An environmental or facility siting law;

   •  Promulgated;

   •  More stringent than the Federal requirement;

   •  Identified in a timely manner; and

   •  Consistently applied.
                             State requirements, like Federal requirements, must
                        also  be  substantive  in nature to qualify  as ARARs.
                        Administrative or procedural State requirements are not
                        ARARs. Elements of State ARARs are discussed below.

                             Generally, laws and regulations adopted at the State
                        level, as distinguished from the regional, county, or local
                        level, are considered  to be State ARARs. Local laws in
                        themselves are not ARARs. However, requirements that
                        are developed by a local or regional body and are both
                        adopted  and  legally  enforceable  by the State may be
                        potential State ARARs.  Potential State ARARs may
                        also  be  found  where  local  or  regional boards have
                        established standards that become part of a  legally
                        enforceable State "plan."

                        II.   STATE ENVIRONMENTAL OR FACILITY SITING
                             LAWS AS ARARs

                             Several common types of State statutes that may
                        provide State ARARs are described below. Guidance
                        on compliance with these  requirements is provided.

                        A.   State Siting Requirements (location Standards)

                             Stale siting requirements may restrict  the location
                        of existing and  expanding or  new hazardous  waste
                        treatment,  storage,  and  disposal  (TSD)  facilities
                        (Highlight  2  provide"  the  triggers for State  siting
                                                    Printed on Recycled Papar

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requirements). Siting restrictions have generally been left
to  the  States  to implement.   However, the Resource
Conservation and Recovery Act (RCRA) contains limited
siting provisions that restrict locations in fault zones, 100-
year floodplains, salt dome and salt bed formations, and
underground  caves.    As  of  1987,   33  States  had
promulgated siting requirements that were more stringent
than Federal requirements/
         Highlight 2:  TRIGGERS FOR STATE
              SITING REQUIREMENTS

  State siting requirements may be triggered as
  potential ARARs when:

  •  An existing hazardous waste site is in a restricted
     location, and a  corresponding action is required
     (such as a removal, remediation, design, or
     modified care);

  •  A new hazardous waste unit is  to  be created in a
     restricted location; or

  •  A non-land-based unit is brought on-site.
     The application of a State siting law to a Superfund
action also depends upon the State's definition of a "new"
or  "existing" site.   Because  Superfund  sites generally
represent  pre-existing  (and unplanned) situations, State
restrictions for new or operating facilities may not apply
to Superfund sites.

     State  siting requirements are  commonly found  in
State laws that address environmentally sensitive areas
such as wetlands, endangered species habitats, gamelands,
parks, preserves,  and   underground  mining/subsidence
areas. States also  protect ground water and surface water
through a variety of  location standards such  as:   (1)
prohibitions  of  facilities  in   certain   locations;  (2)
quantitative setback distances from water supplies or other
water bodies;  (3) quantitative  thickness or  hydraulic
conductivity  in soil  barriers; and  (4)  designation  of
acceptable soil or rock  type  for facility siting.   Finally,
buffer zones may also contain location standards ranging
from specific setback distances to general statements that
preclude interference with population areas.

B.   Discharge of Toxic Pollutants to Surface Waters

     The  Clean Water Act (CWA) requires  States  to
identify water  bodies that may  be adversely affected  by
toxic  pollutants and to develop criteria to protect these
areas.  State toxic  pollutant regulations are generally prc-
   Temple, Barker, and Sloane, Inc., Review of Slale Hazardous Waste
Facility Criteria, Revised Draft Final Report.  U.S. EPA, Washington,
DC, 1987.
sented in the form of narrative goals rather than numeric
criteria.  For example, State narrative requirements may
be expressed in terms predicated upon specific toxicity
testing procedures or in  terms of whole effluent toxicity
limits.   All  substantive   aspects  of  these  narrative
requirements may be ARARs for CERCLA discharges.
In  addition, general  prohibitions  on  toxic  pollutant
discharges  of known carcinogens may be State ARARs
for  on-site  CERCLA  discharges.    All  such  State
requirements should be examined for any exemptions of
Federal activities.

C.   Antidegradation Requirements for Surface Water

     The CWA requires all States to adopt statutes or
regulations that prevent  the degradation of high-quality
waters.  In  addition, States may  have promulgated other
antidegradation  requirements for  surface  waters  (see
Highlight    3    for    typical   State   antidegradation
requirements).
            Highlights:  TYPICAL STATE
       ANTIDEGRADATION REQUIREMENTS

  Typical State antidegradation requirements will
  mandate the:

  •  Maintenance of existing in-stream designated
     beneficial uses;

  •  Maintenance of high-quality waters unless the
     State decides to allow limited degradation where
     economically or socially justifiable;

  •  Maintenance of the quality of Outstanding
     National Resource Waters (ONRW); and

  •  Use of best available technology for treatment
     of new or increased  pollution into high-quality
     waters.
If  a  CERCLA remedial action  involves a  point-source
discharge  of  treated  effluent to  high-quality  surface
waters, these various State antidegradation requirements
may  be ARARs for the discharge.

D.   Antidegradation Requirements for Ground Water

     Like antidegradation requirements for surface water,
antidegradation  requirements  for  ground  water  are
generally  prospective  in  nature and arc  designed to
prevent  further degradation of water quality.  If a State
has developed antidegradation requirements for ground
water, CERCLA remedial actions involving injection of
partially  treated water into  a pristine aquifer may be
affected.  These State  requirements would not, however,
require cleanup to the aquifer's  original  quality prior to
contamination. However, there  may be  a State cleanup

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law that specifically requires cleanup to background, which
would constitute an ARAR for the remediation.

III.  "PROMULGATED" LAWS AS ARARs

     A State requirement must be promulgated to qualify
as an ARAR.  A State requirement is promulgated  if it
is: (1) legally enforceable; and (2) of general applicability
(see Highlight 4).
     Highlight 4: PROMULGATED STATE LAWS

  •  Legal Enforceability:  State requirements may be
     legally enforceable in several ways.  State statutes
     or regulations may either:  (1) have their own
     specific enforcement provisions written into them;
     or (2) be enforced through the State's  general
     legal authority.

  •  General Applicability:  State requirements must
     apply to a broader universe than Superfund sites.
     For  example, a State requirement having general
     applicability ("of general applicability") would
     apply to all hazardous waste sites in the State
     that meet the jurisdictional prerequisites of the
     requirement, not just to  CERCLA sites.
     Promulgated requirements are found in State statutes
and  regulations  that have  been adopted by authorized
State agencies.   Statute numbers, enactment dates,  and
effective dates may indicate whether the requirements have
been promulgated.  Such promulgated requirements  may
be either numerical or  narrative in form.

A.   Criteria That Are  "To Be Considered" (TBCs)

     Although they are  not  ARARs,  State advisories,
guidance and policies,  etc.,  may help  EPA define  and
develop protective  remedies  and interpret  State  laws.
These  State  policies  and  guidance, known as "to be
considered" (TBCs), are  not  potential  ARARs because
they are neither promulgated nor enforceable.   It may be
necessary  to  consult TBCs to  interpret ARARs or to
determine preliminary remediation goals when ARARs do
not  exist  for  particular  contaminants.   States should
identify or communicate to EPA TBCs that they consider
to be pertinent  to the  remedy.

B.   Narrative Standards

     Occasionally, a State may submit  as an  ARAR a
narrative State statute.  While narrative State statutes may
be  ARARs,  unpromulgated  methodologies  that  are
designed to implement narrative statutes are not. EPA has
discretion to determine whether numbers obtained  from
unpromulgated  methodology should be  met, or whether
they constitute TBCs.   It is important to note,  however,
that numbers derived from Slate narrative statutes may be
ARARs if the narrative statute is an ARAR, and has
implementing regulations that are also ARARs.

IV.  "MORE STRINGENT" LAWS AS ARARs

     CERCLA requires remedies  to  comply with State
requirements that  are  more  stringent  than  Federal
requirements (see Highlight 5 for a definition of "more
stringent").
            Highlights: CRITERIA FOR
               "MORE STRINGENT"

  •  State requirements are more stringent  than
     Federal requirements if the State program has
     Federal authorization and the State
     requirements are "at least" as stringent.

  •  State programs that do not have a  Federal
     counterpart are generally more stringent
     because they add new requirements.

  •  Stringency comparisons may be necessary if a
     State program is  not Federally authorized but
     has a Federal counterpart.
It is important to note that EPA believes that if a State
is  authorized  to  implement  a program in lieu of a
Federal agency, State laws  arising out of that  program
constitute the ARARs instead of the Federal authorizing
legislation.   A  stringency  comparison  is  unnecessary
because  State regulations  under Federally  authorized
programs are considered to be Federal requirements.

V.   IDENTIFYING  AND COMMUNICATING STATE
     ARARs IN A TIMELY MANNER

     CERCLA requires Stales to identify ARARs in a
timely  manner.  As a result, EPA and a State may enter
into a  Superfund  Memorandum of Agreement  (SMOA)
which,  among other  things, establishes  a schedule for
communicating ARARs.  In  the absence of a SMOA,
States  must identify  ARARs  within certain timeframes
(identified  below) in  order  for that  identification to be
considered "timely".   EPA is not  legally  required to
consider potential State ARARs  that are not identified
within  these timeframes.  The responsibilities of a State
to communicate  ARARs will vary depending  upon its
role  at the site  (see Highlight  6  for  State roles and
responsibilities).

     A.   Critical Points for Identifying State ARARs

     There are particular points in the preremedial and
remedial processes during which the lead and support
agencies must communicate with each  other.  SMOAs
may  identify timeframes for communicating  potential
ARARs.  Highlight 7 presents the critical points  in the

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          Highlight 6:  STATE ROLES AND
                RESPONSIBILITIES

  As the support agency, the State is responsible for:

  • Receiving and reviewing information about
    proposed Federal ARARs and TBCs, as early as
    site characterization;

  • Coordinating State  input on ARARs from all
    State agencies;

  • Identifying State ARARs during the RI/FS;

  • Justifying proposed  State ARARs; and

  • Reviewing  ARARs  identified in the proposed
    plan and ROD.

  As the lead agency, the State is responsible for:

  • Requesting EPA's identification of Federal
    ARARs;

  • Identifying State ARARs during the RI/FS;

  • Identifying ARARs  and waivers in the proposed
    plan;  and

  • Documenting compliance with ARARs  in the
    draft  ROD.
pre-remedial and remedial processes if no SMOA exists,
or if the SMOA fails to address such timeframes.  It is
important to note that regardless of their role, EPA and
the States each have an unvarying responsibility.  States
are always responsible for identifying State ARARs and
communicating them to  EPA in a timely manner.   EPA
is always responsible for making the final determination
on ARARs as  part of remedy selection, regardless of who
conducts the RI/FS (i.e.,  EPA, the State, or PRP), or who
recommends the remedy (i.e., EPA or the State), except
for State-lead  non-Fund-financed sites.
     15.   EPA   Responsibilities
         Waivers
for  Communicating
     If EPA intends to waive any State-identified ARARs
in its proposed plan, or does not agree with  the State
that  a certain  State standard is  an ARAR,  it must
formally  notify  the  State either:  (1)  when the Agency
submits the RI/FS  for  State  review;  or (2)  when  the
Agency responds to the  State's submission  of the RI/FS.
In addition, EPA must  respond to State comments on
waivers from, or disagreements about, State ARARs after
making the RI/FS and proposed plan available for public
comment.
Highlight 7: CRITICAL POINTS
FOR IDENTIFYING ARARS

ScophflOl
«*^|s :^ '
• Lead and support agencies Initiate discussion
ct potential ARARs and TBCs, focusing on
chemical- and location-specific requirements.
1
SiteCha!
'
acterlzation
• Lead agency sends Preliminary Site Char-
acterization Summary to support agencies to
facilitate ARARs Identification.
• Lead agency requests potential chemlcal-
and location-specific ARARs and TBCs from
support agency.
• Support agency has 30 days from receipt
of request to respond.
}
-
Development of Alter lattves
* Lead agency begins preliminary consideration
of action-specific ARARs.
i
F
•
Screening of Alternatives

• Lead agency begins Identification of
action-specific ARARs.
• Lead Agency notifies the support agency of
alternatives that passed Initial screening.
1
'
" (totaled Analysis of Alternatives
• Before Comparative Analysis begins, lead
agency requests action-specific and any addi-
tional ARARs and TBCs from support agency.
• Support agency has 3O days from receipt
of request to respond.
t
Selection of Preferred Alternative
• Lead agency states In Proposed Plan whether
each alternative will comply with all Identified
ARARs and/or Identifies proposed waivers
and their Justification.
• Lead agency provides Proposed Plan and
RI/FS report to support agency for review.
f
Record of Decision (ROD)
• Lead agency summarizes ARAR compliance
In ROD and provides draft ROD to support
agencies for review.
|
Remedial Design/Remedial Action
• Lead agency:
— provides a copy of the RD to support
agencies for review;
— identifies additional ARARs based upon
design specifications/changes;
— verifies protectlveness of remedy If
significant new ARARs are promulgated;
and
— reviews ARARs If RA significantly
different than the ROD.




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C.   State Responsibilities for Documenting State ARARs

     To  demonstrate that  the  State  requirement is  an
ARAR,  States  are  required by  the  NCR  to  provide
citations to the statute or regulation number.  In addition,
States should provide the requirement's effective date and
description of  scope, where  appropriate.   Furthermore,
States should  provide evidence  that the requirement is
more stringent than  the Federal  requirement.  -Finally,
States should  also describe  in  writing the relationship
between  the State requirement and the site or action, to
show that the State requirement is applicable or relevant
and appropriate to that particular site or action.

VI.  STATE STANDARD WAIVERS

     A.  Statutory Waivers

     Of the six ARAR waivers set forth in CERCLA, one
applies   exclusively   to   State   ARARs:   inconsistent
application of  the State standard  by  the  State.   This
waiver may be invoked when evidence exists that a State
standard has not been or will not be consistently applied
to both non-NPL and NPL sites within the State.  The
waiver may  be used, for example,  for a State standard
that was promulgated but never applied, or for a standard
that  has been  variably applied  or enforced.  A State
standard is presumed to have been consistently applied
unless there is evidence to  the contrary.

     B.   State  Waivers

     In addition to the waivers  provided  by CERCLA,
many State regulations have their own waivers or excep-
tions  to their requirements.  When a State requirement
has a waiver that is applicable, the State requirement does
not have to be met.  EPA makes the final determination
as part of the selection of remedy.

     State waivers are common components  of State
siting  requirements.    Usually  only  temporary  or
emergency situations qualify for waivers of State siting
requirements.  Remedial actions at Superfund sites may
qualify for State waivers depending upon their design and
the particular waiver requirements.  To determine if a
remedial action  qualifies  for a State waiver, the State
waiver provision  should be examined for its duration,
circumstances  that  justify  its use,  and  any renewal
provisions.

     C.   State-Wide Bans

     Under CERCLA section 121 (d), a State-wide ban
prohibiting land  disposal of hazardous substances is not
an ARAR  unless the following three criteria are  met:

 •   The  State requirement is of general applicability
     and was adopted by formal means;

 •   The State requirement was idopted 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; and

 •   The State arranges for, and assures payment  of the
     incremental   costs  of,  utilizing  a  facility  for
     hazardous waste disposal.

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State and Local Involvement
 in the Superfimd Program

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                             United States
                             Environmental Protection
                             Agency
                          Office of Solid Waste
                          and Emergency Response
Publication No.
9375.5-01 /FS
Fall 1989
   &   EPA     State  and  Local
                            Involvement  In  The
                            Superfund  Program
 Office of Emergency and Remedial Response
 Hazardous Site Control Division (OS-220)
                                                  Quick Reference Fact Sheet
INTRODUCTION

When Congress first enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in 1980, it
required States 10 be active partners in conducting Superfund response actions. Under CERCLA, S tatcs with the technical and management
capability to carry outa response action may be authorized to lead cleanup efforts at a site. Local communities and certain local government
agencies (such as fire departments and public health agencies) also participate in Superfund cleanup operations.

In 1986, Congress amended CERCLA and passed the Superfund Amendments and Reauthorization Act of 1986 (SARA). CERCLA, as
amended, strengthens the partnership between the Federal Government and State and local authorities.

State and local governments play an important role in ensuring effective, efficient and well-coordinated cleanups.  Often local authorities
arc the first rcsponders at the scene of a hazardous substance release, providing critical fire protection, security, and health-related services.
HOW STATES AND
LOCAL GOVERNMENTS
BECOME INVOLVED
The law authorizes the Federal Government to take response actions at a site (Federal-lead), or to
transfer the necessary funds and management responsibility to a State (Stale-lead), to political
subdivisions of States or to federally recognized Indian Tribes. Regardless of who has the lead,
the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) (40 CFR Part 300)
is the master plan for Superfund response. Together, CERCLA, as amended, and the NCP, ensure
States' involvement in response by requiring EPA to work with States during: 1) negotiations with
potentially responsible parlies (PRPs), 2) the National Priorilies List (NPL) listing and deleting
process, 3) study of the sile lo determine cleanup options, and 4) selection and implementation of
the remedy.

CERCLA, as amended, prohibits EPA from providing for a remedial action unless the State makes
the following assurances or guarantees:

    Pay part of the cleanup. A Slate is required to pay 10 percent of the cost of actual cleanup
    only if the site was privately operated at the time of the hazardous substance release.  A State
    is required to pay 50 percent or more of the total response costs incurred by  Superfund if the
    Stale or locality  operated the sue al the time hazardous wastes were disposed ihcrc.  For
    example, if an old municipal landfill is found leaking ha/.ardous chemicals, (he Stale would
    be required lo provide al least half the cost of an cniirc Superfund response. Political
    subdivisions may provide the cost share, but the Slate musl assure payment in case of default.

    Ensure the availability of a l'acilily(s) for disposal of haxardous materials removed from a site
    during cleanup. Disposal facilities must comply wiih all Federal and Suite requirements, and
    must not threaten the quality of human health and the environment.

    Ensure that the State's disposal capacity can adequately handle all wastes generated within the
    State over 20 years (effective starting in 1989).

    Operate and maintain the selected remedy once ihc cleanup is complcicd and is proven to be
    operational and functional. The Slalc assumes full rcsponsibihly for future operation and
    maintenance.  Although a political subdivision  may manage the aclual  operation and
    maintenance of the selected remedy, the Slate maintains ultimate responsibility.
                                                                                           Printed on Recycled Paper

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OVERVIEW OF CERCLA

Congress enacted the Comprehensive Envi-
ronmental  Response, Compensation and
Liability Act(CERCLA),commonly known
as Supcrfund, in 1980. This law created a
lax on the chemical and petroleum indus-
tries and provided broad Federal authority
to respond directly to re/eases or threatened
releases of hazardous  substances that may
endanger public health or welfare or the
environment.  Over five years, $1.6 billion
were collected, and the tax went to a Trust
Fund for cleaning up abandoned or uncon-
trolled hazardous waste sites. The U.S. En-
vironmental Protection Agency (EPA) is re-
sponsible for  running the Superfund pro-
gram.

On October 17,1986, the Superfund Amend-
ments and Reauthorization Act (SARA) was
signed into law. SARA increases the Trust
Fund to $8.5  billion over five years, and
strengthens EPA's  authority  to  conduct
cleanup and enforcement activities.

Under the Superfund program, EPA can:
    Pay for the cleanup of hazardous waste
    sites when those responsible for such
    sites cannot be found or are unwilling
    or unable to clean up a site.

    Take legal action to force those respon-
    sible for hazardous waste sites  that
    threaten public health or the environ-
    ment to clean up those sites or pay back
    the Federal Government for the costs of
    cleanup.

The law authorizes two kinds of response
actions:

•   Short-termre/nowifawhereactionsmay
    be taken to address releases or threat-
    ened releases requiring  prompt  re-
    sponse.

•   Longer-term remedial responses  that
    permanently and significantly reduce
    the dangers associated with releases or
    threats of releases of  hazardous sub-
    stances that are serious but not immedi-
    ately life threatening.  They can be
    conducted only at sites on EPA's Na-
    tional Priorities List (NPL).

Remedial and removal responses include,
but are not limited to:

•   Destroying, detoxifying or immobi-
    lizing the hazardous substances on
    the site through incineration or other
    treatment technologies.

•   Containing the substances on-sitc so
    that they can safely remain there and
    present no further threat.

•   Removing the materials from the site
    to an EPA-approved, licensed haz-
    ardous  waste facility for treatment,
    containment, or destruction.

    Identifying  and restoring contami-
    nated ground water, halting further
    spread of thecontaminants, or in some
    circumstances providing an alternate
    source of drinking water.
                              OVERVIEW OF SUPERFUND PROCESS


                                      ;    REMOVAL ACTIONS                 !
                       MAY OCCUR PRIOR TO OR DURING THE REMEDIAL PROCESS
                         PUBLIC PARTICIPATION AND ENFORCEMENT ACTIVITIES

                                 OCCUR DURING ALL REMEDIAL PHASES
Stale and local involvement in the Superfund program varies depending upon the type of response action. During a removal action, which
is an action taken over the short icrm to address a release or threatened release of hazardous substances, often local authorities arc the first
rcspondcrs at the incident For example, a city fire or police department can respond immcdiaiely to ha/^rdous substance releases or may
serve in a support role to a Stale or Federal authority conducting removal cleanup activiiics.

During a remedial action, which is an action intended to stop permanently or substantially reduce over the long term a release or threatened
release of hazardous substances, there arc many ways for Slate and local governments to participate. States may conduct the Preliminary
Assessment and Site Inspection (PA/SH, the Remedial Investigation and Feasibility Study (Rl/FS) or the Remedial Design and Remedial
Action (RD/RA). States and local governments also may help identify potentially responsible parties and inform local communities aboul
a cleanup. Whether a site requires a remedial or removal response, the role of Suilc and local agencies is critical in protecting public health
and the environment.

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MECHANISMS TO
ENSURE STATE AND
LOCAL INVOLVEMENT
          CODE OF
          FEDERAL
       REGULATIONS

       40 CFR Part 35
          Subpart 0
Supcrfund provides the following mechanisms for State and local involvement:

    Cooperative Agreements transfer funds from EPA to States, political subdivisions thereof,
    and/or Indian Tribal  governments to undertake the lead for site-specific response, or to
    defray their costs associated with participation in Federal-lead or political subdivision-lead
    responses or other CERCLA  implementation activities.   It is also the legally binding
    document to get assurances when the State does a remedial  action. If a State receives
    funds through a Cooperative Agreement, the State is not prohibited from entering into
    intergovernmental agreements with political  subdivisions  for Superfund response.

•   Supcrfund State Contracts are joint, legally binding agreements between EPA and a State or
    Indian Tribe. Superfund State Contracts  provide a vehicle for assuring the transfer of State
    cost-sharing funds when EPA is leading a response action, for documenting that States meet
    all  required assurances under CERCLA, as amended, and for documenting CERCLA
    Section 121(f) involvement during a political subdivision-lead response.

Procedures for using Cooperative Agreements and Superfund  State Contracts for Supcrfund
responses can be found at 40 CFR Part 35 Subpart O.
THE ROLE OF
POLITICAL
SUBDIVISIONS
A political subdivision may be directly involved in a Superfund remedial cleanup.  States,
however, arc required to be active partners. What legally constitutes apolitical subdivision differs
from State to State. It is the responsibility of each State to determine what unit of government meets
its legislative definition of a political subdivision (for example, a region, county, or town).

If a political subdivision leads the Superfund response, there are two options available to ensure
appropriate State involvement and to provide the required assurances. In the first option, EPA
enters into a Cooperative Agreement directly with the political subdivision. In this scenario, EPA
must also enter into a three-party Superfund State Contract, which specifies how EPA, the State,
and political subdivision will comply with CERCLA Sections 104 and 121 and the NCP. In the
second option, EPA enters into a Cooperative Agreement directly with the State. The State, in turn,
"passes through" the funds to a political subdivision and enters into a two-party Intergovernmental
Agreement with the political subdivision prior to either the State or political subdivision incurring
costs for field activities. This second option is similar to a State hiring a contractor to conduct
response activities.
THE ROLE OF
INDIAN TRIBES
Under  the law, EPA is required to treat Indian Tribal  governments substantially the same as
Suites.  This means that if a Tribe is federally recognized, it may lead a response or may provide
support when EPA leads the activities. To be considered substantially equivalent to States, an
Indian Tribe must have jurisdiction over a site listed in CERCLIS (EPA's data base of information
on hazardous waste sites). Federally recognized Indian Tribes may not have to provide CERCLA
Section 104 assurances in all cases. Currently, EPA provides for off-site disposal, and the decision
of who will oversee the operation and maintenance of the remedy is made on a case-by-case basis.
 THE ROLE OF
 LOCAL GOVERNMENTS
                             ]
Local governments also play an important role during a Supcrfund cleanup. Although most local
governments do not have the resources to conduct entire cleanups at hazardous waste sites,
localities often provide important public safety measures during emergencies, and may receive
some financial assistance under the Local Government Reimbursement (LGR) program (Section
123 of CERCLA, as amended).

The LGR program is intended to alleviate significant financial burden on local governments as a
result of conducting temporary emergency measures in response to a ha/ardous substance threat,
and offers assistance of up to $25,000 per response directly to local governments. Requirements
for pursuing reimbursement under CERCLA Section 123 are found in EPA's Interim Final Rule

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                                   on Reimbursement to Local Governments for Emergency Response to Hazardous Substances
                                   Releases (40 CFR Part 310). In addition, EPA has prepared a fact sheet and application package
                                   that can be obtained by contacting EPA's RCRA/Supcrfund Hotline.

                                   Local communities arc important sources of information.  Localities may be the first to identify
                                   a hazardous waste site by bringing it to the attention of State or Federal authorities. Communities
                                   can provide valuable details about a Supcrfund site, including information on the location of sites
                                   (site discovery), detail on site history  (site  investigation), and/or  information on potentially
                                   responsible parties.

                                   Stales often will coordinate with local officials to identify community concerns regarding a site
                                   cleanup. Throughout all cleanup actions, local officials are kept informed of plans and progress
                                   through telephone contacts or visits by EPA and State staff.  Communities may also be asked to
                                   review and comment on important reports, studies, and proposed actions.

                                   Whether a Federal-lead or State-lead managed response, to guarantee that local citizens arc
                                   involved in decisions about cleanup actions in their communities, bom EPA and the State conduct
                                   formal and informal community relations activities.  Each NPL site designated for remedial
                                   response under Superfund must have an approved Community Relations Plan (CRP) in place
                                   before field activities can begin.
          FUTURE
       DIRECTIONS
As the Superfund program continues to address the hazardous wa: te issue nationwide, State and
local governments will assume an increasingly active role in confronting issues at Supcrfund sites.
Some States have already developed their own State-wide cleanup program to address sites not
included on EPA's National Priorities List.

In an effort to support State and local involvement in Supcrfund responses, EPA has taken several
steps:

•  Developed a new Subpart to the NCP, the roadmap to conducting responses under CERCLA.
   This Subpart outlines the requirements for Stale, local and Indian Tribal involvement in all
   phases of response.

•  Published an administrative rule to complement the general procedures described in the NCP.
   This rule, Cooperative Agreements and Supcrfund State Conlracts for Supcrfund Response
   Actions, can be found al 40 CFR Part 35 Subpart O.

•  Developed a scries of Direclivcs, designated by the 9375.5 code, which is guidance relating to
   State, political subdivision, and federally recognized  Indian Tribal involvement in the Supcr-
   fund program.

The Agency also is encouraging States and local governments to participate in EPA-sponsorcd
training programs.
FOR MORE
INFORMATION
For more information on State and local involvement in the Supcrfund program, contact the
RCRA/Supcrfund Hotline at 202-382-3000 or 1-800-424-9346.  For a  list of directives and
publications or information on obtaining copies, contact the  Supcrfund Docket & Information
Center (SDIC) at 202-382-6940.

For more information on training opportunities for State and local governments and IndianTribcs,
contact the Supcrfund Training Coordinator in EPA's Office of Solid Waste and Emergency
Response at 202-382-4364.

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            Control of Air Emissions from
Superfund Air Strippers at Superfund Groundwater Sites

-------
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCv
                           /VA3HINGTCN O C  20-160


                            JUM !  5  1969
                                       OSWER Directive 9355.0-28
 MEMORANDUM

 SUBJECT:


 FROM:
Control of Air Emissions From Superfund Air
Strippers at Superfund Groundwatar Sites
Henry L. Longest II, Director_
Office of Emergency and Remedi
TO:
Gerald Emison, Dir
Office of Air Quality

Addressees
                                                    nse
                                             and Standards
 PURPOSE

    This memorandum  establishes guidance on the control of air
 emissions  from  air strippers used at Superfund sites  for
 groundwater treatment  and  establishes procedures for
 implementation.  Under this guidance, Regions should  continue to
 make air emission control  decisions on a case-by-case basis
 using the  nine  remedy  selection criteria and the remedy
 selection  process set  forth in the proposed National  Contingency
 Plan (NCP).  As described  below, however, the evaluation and
 weighing of the criteria in a "to be considered" (TBC) context
 will differ according  to the air quality status of the site's
 location.

 BACKGROUND

    Approximately 35%  of the Records of Decision (RODs) signed
 to date have involved  sites which use a pump and treat technique
 to either  partially  or fully remediate groundwater
 contamination.  Close  to 45% of these pump and treat  sites have
 selected air stripping.  For the foreseeable future,  OERR
 expects to use air stripping at about the same rate.  This
 treatment  technique  relies on volatilization to remove volatile
 organic compounds (VOCs) from the groundwater, i.e. it transfers
 the contaminants from  the  liquid to vapor phase.  One known side
effect of air stripping is the emission of VOCs, many of which

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                            -2-        OSWER Directive 9355.0-28


are toxic, to the ambient air.  The Superfund Program uses
control devices such as vapor phase carbon adsorption and
incineration to control these emissions.

    In response to a request from Regional Air Division
Directors for a policy to guide the selection of controls for
air strippers, OERR and OAQPS conducted a joint study.  The
results showed that historically close to half of the Superfund
air stripper sites had adopted controls during remedy
selection.  Another 25 percent deferred the decision to the
remedial design phase.  At sites with RODs signed after the
enactment of the Superfund Amendments and Reauthorization Act,
approximately two-thirds of the air strippers are controlled.
At these sites, control decisions were based on an analysis of
the cleanup standards established in Section 121 of CERCLA and
the other statutory considerations which together comprise the
nine remedy selection criteria:  overall protection of human -
health and the environment; compliance with Applicable or
Relevant and Appropriate Requirements (ARARs); long-term
effectiveness/permanence; reduction of mobility, toxicity or
volume (MTV); short-term effectiveness; implementability; cost;
State acceptance; and community acceptance.  Control decisions
to date have been driven largely by protectiveness and State
ARARs for both air toxics control and VOC control for ozone
reduction,  other criteria such as MTV, short-term
effectiveness, cost, and community acceptance, have also
influenced the inclusion of controls.

    Despite the trend towards increased control of air emissions
from Superfund air strippers, the Agency remains concerned with
the control of these air emissions.  This concern underlies  the
vigorous efforts by EPA, States, localities, and industry across
the country to control air toxics and reduce VOCs in  ozone
nonattainment areas.  The adoption of this policy responds to
these concerns, reflects an overall Agency concern with
preventing the cross-media transfer of pollutants, and
recognizes that the number of Federal, State, and local  ARARs
for both VOCs and air toxics appears to be rapidly increasing.

    The following policy has been adopted to guide Regional
decisionmakers on the use of controls for air emissions  from
Superfund air strippers, and other vented Superfund sources  of
VOCs.  This policy is grounded in the remedy selection process
and distinguishes between sites located in attainment and
nonattainment areas.

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                            -3-        OSWER Directive 9355.0-23
STATEMENT OF POLICY

    For sites located in areas that are attaining the National
Ambient Air Quality Standards for ozone, Regions should continue
applying controls based on existing Agency policy.  In most
cases, this will mean the adoption of controls largely in
response to State ARARs, risk management (i.e., protective-
ness) guidelines, and other requirements of CERCLA Section 121.

    In ozone nonattainment areas, however,  the adoption of
controls is more likely to be indicated even if they are not
mandated by current Federal or State laws and regulations or
indicated by a cancer risk analysis.  Aside from cancer risk
from air toxics, VOC emissions contribute to non-cancer health
risks in nonattainment areas because most are precursors to the
formation of ozone.  Consideration of these non-cancer risks
when applying the remedy selection criteria generally will show
that in nonattainment areas Superfund air strippers, except  -
those with the lowest emissions rates as indicated below,
generally merit controls.  In determining the need for air
stripper controls at a particular Superfund site in a
nonattainment area, the Regions should be guided by the
emissions limit goals in the document entitled, "Issues Relating
to VOC Regulation Cutpoints, Deficiencies,  and Deviations,"
issued in May 1988 by the Office of Air Quality Planning and
Standards (OAQPS) to aid States in revising their State
Implementation Plans (SIPs) to incorporate post-1987 ozone
attainment strategies.  The OAQPS guidance indicates that the
sources most in need of controls are those with an actual
emissions rate in excess of 3 pounds per hour  (Ib/hr) or 15
Ib/day or a potential (i.e., calculated) rate of 10 tons per
year (TPY) of total VOCs.  The calculated rate assumes 24-hour
operation, 365 days per year.  Regions should note that control
levels are applied on a facility basis.  For the purposes of
this guidance, facility is defined as a contiguous piece of
property under common ownership.

    This guidance applies to air strippers at Superfund sites.
In establishing the policy, however, the potential for
applicability to other VOC sources is recognized.  Generally,
the guidelines described for air strippers are suitable for voc
air emissions from other vented extraction techniques  (e.g.,
soil vapor extraction) but not from area sources  (e.g., soil
excavation).

    This guidance applies to future remedial decisions at
Superfund sites.  The policy is not explicitly designed for

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                            -4-        OSWER Directive 9355.0-28


actions taken by the removal program in the case of emergency or
time critical removal actions.  However, where time and other
response circumstances permit, such as for non-time critical
actions, adherence to this policy is expected.

    The control levels referred to above serve as guidelines
only if ARARs do not exist or are less stringent than presented
here.  They are not intended to preclude or replace State
proposals for more stringent levels of control in pursuit of
Clean Air Act goals as part of SIP revisions in nonattainment
areas.

IMPLEMENTATION

    This guidance seeks to incorporate air quality concerns into
the Superfund remedy selection process.  In particular, the use
of controls for Superfund air strippers in nonattainment areas
demonstrates the Agency's commitment to reducing VOCs and thus -
progressing toward attainment of the ozone standard.
Additionally, the guidance is consistent with both the current
NCP and proposed revisions.  Where ARARs do not exist, EPA may
consider TBCs in setting target cleanup levels.  This guidance
constitutes a TBC.

    The Remedial Investigation/Feasibility Study (RI/FS) should
generate the data needed to support control decisions for both
attainment and nonattainment areas.  At a minimum, the five
major types of information needed are:

         Estimated cumulative uncontrolled air emissions rate
         from all air strippers at the site

         Consideration of health risks from the execution of the
         remedy as well as from the uncontrolled site

         Control alternatives and their costs

         Ozone attainment status

         Air ARARs

    For purposes of this guidance "nonattainment area" means any
county included in a formal post-1987 ozone SIP deficiency
notification (SIP call) or any other county where the ozone
National Ambient Air Quality Standard was exceeded during the
previous three-year period.  EPA's initial SIP calls were issued
pursuant to Section 110(a)(2)(H) of the Clean Air Act and were
described in the September 7, 1988 Federal Register.

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                            -3-
                                       OSWER Directive 9355.0-23
    The RI/FS scoping phase and work plan development should
describe the specific data to be generated and the methods for
doing so.  Remedial Project Managers should consult with the
designated Air Superfund Coordinator for technical assistance.
Additional assistance is available from National Technical
Guidance Manuals developed jointly by the Air and Superfund
program offices for estimating air emissions and conducting air
pathway analyses.  The ROD should summarize this information as
appropriate and clearly document the basis for the air emissions
control decision.

Addressees:
Regional Waste Management Division Directors
Regional Superfund Branch Chiefs
Regional Air Division Directors
Regional Air Branch Chiefs
OERR Division Directors
OAQPS Division Directors

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Indian Tribal Involvement
in the Superfund Program
                             no)

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                       United States
                       Environmental Protection
                       Agency
Office of Solid Waste
and Emergency Response
Publication No.
9375.5-02/FS
Fall 1989
   & EPA     Indian Tribal Involvement
                       In The Superfund  Program
Office of Emergency and Remedial Response
Hazardous Site Control Division (OS-220)
                     Quick Reference Fact Sheet
                                    INTRODUCTION

       Under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), as
 amended by the Superfund Amendments and Reauthorization Act of 1986, the U.S. Environmental Protection
 Agency (EPA) is required to treat Indian Tribal governments substantially the same as States and to ensure
 meaningful involvement by States, political subdivisions, and Indian Tribes. This fact sheet describes the
 specific requirements of CERCLA and the National Oil and Hazardous Substances Pollution Contingency Plan
 for Tribal involvement in the Superfund program.
                       CRITERIA FOR TREATMENT AS A STATE

    Indian Tribes are treated essentially as States when they meet three criteria:

    •     Are federally recognized

    •     Have a Tribal governing body that is currently performing governmental functions to promote
          health, safety and welfare of the affected population or to protect the environment within a
          defined geographic area

          Have jurisdiction over a site that is listed in CERCLIS (EPA's data base of information on
          hazardous waste sites), or have jurisdiction over a site that is proposed or listed on the National
          Priorities List (EPA's list of the nation's most serious hazardous waste sites), at which  a Fund-
          financed response is contemplated.
                   DETERMINATION OF "FEDERALLY RECOGNIZED"

       Section 101(36) of CERCLA defines an Indian Tribe to be "any Indian Tribe, band, nation, or other
 organized group or community, including any Alaskan Native village but not including any Alaskan Native
 regional or village corporation, which is recognized as eligible for the special programs and services provided
 by the United States to Indians because of their status as Indians."  The Bureau of Indian Affairs (BIA)
 establishes criteria to determine whether an Indian Tribe is federally recognized and publishes a list of these
 Tnbes in the Federal Register annually.
       In some instances, a Tribe that has been federally recognized may not yet have been added to the
 published BIA list. To verify the status of a Tribe, more recent information can be obtained from the Branch
 of Acknowledgment and Research, BIA Headquarters, Washington, D.C., (202)343-1710.
                                                                         Printed on Recycled Paper

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                      OPPORTUNITIES FOR TRIBAL INVOLVEMENT

       Federally recognized Indian Tribes ir«ay panicipate in Superfund response as either a lead or support
agency for Fund-financed activities during each phase of response.  Indian Tribes may obtain funds for both
lead and support agency involvement through a Superfund Cooperative Agreement. In addition, Tribes may
seek funding for non-site-specific activities that facilitate their involvement in the Superfund program through
a Core Program Cooperative Agreement.
       CERCLA, as amended, prohibits EPA from undertaking a remedial action unless a State makes certain
assurances or guarantees, including paying for part of the cleanup, ensuring disposal capacity, and conducting
operation and maintenance of the remedy.  Federally recognized Indian Tribes may not have to provide these
CERCLA Section  104 assurances in all cases. In many cases, EPA provides the required assurances for the
Indian Tribes.
       EPA retains primary enforcement authority under CERCLA for sites within the jurisdiction of States,
political subdivisions, and Indian Tribes. Indian Tribal governments are afforded the  opportunity similar to
States to participate in EPA negotiations with responsible parties for actions relating to, or directly impacting,
land under Tribal jurisdiction. If a Tribal government participates in negotiations, it may become a signatory.
                                  FOR MORE INFORMATION
      EPA has developed a series of documents describing opportunities and requirements for Tribal
involvement. These include:

             Subpart F of the NCP, which outlines the requirements for State, local, and Indian Tribal
             involvement as lead or support agency in all phases of Superfund response

             40 CFR Part 35 Subpart O, which describes administrative procedures for entering into
             "Cooperative Agreements and Superfund State Contracts for Superfund Response"

             "Hazardous Waste Releases on Indian Land: Beginning the Superfund Process"
             (EPA/540/8-89/001), which is a handbook to assist Tribes in dealing with releases

             OSWER directives in the 9375.5 series, which pertain to State, political subdivision, and
             federally recognized Indian Tribal involvement in the Superfund program.

For a complete list of EPA directives and publications on Indian Tribal involvement in the Superfund program
or information on obtaining copies, contact the Superfund Docket and Information Center at (202)382-3046.
Further information on Indian Tribal involvement in the Superfund program can be obtained from the RCRA/
Superfund Hotline at (202)382-3000 or (800)424-9346.

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     Interim Guidance on Establishing
Soil Lead Cleanup Levels at Superfund Sites

-------
52EJ
   UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
              WASHINGTON. D.C.  20460
                            5EP  7  iW
                                                   SOL'C A43
MEMORANDUM
SUBJECT:
FROM:
TO:
PURPOSE
                                      OSWER Directive  #9355.4-02
Interim Guidance on Establishing SoiJ. Lead Cleanup
Levels at Superfund Sites.       /  /
                             nl /
Henry L. Longest II, Director •'(]• *Y\ '
Office of Emergency and Remedial Response
Bruce Diamond,
Office of Waste Programs Enforcement

Directors, Waste Management Division, Regions I, II,
IV, V, VII and VIII
Director, Emergency and Remedial Response Division,
Region II
Directors, Hazardous Waste Management Division,
Regions III and VI
Director, Toxic Waste Management Division,
Region IX
Director, Hazardous Waste Division, Region X
     The purpose of this directive is to set forth an  interim  soil
cleanup level for total lead, at 500 to 1000 ppm, which  the  Office
of Emergency and Remedial Response and the Office of Waste Programs
Enforcement consider protective for direct contact at  residential
settings.  This range is to be used at both Fund-lead  and
Enforcement-lead CERCLA sites.  Further guidance will  be developed
after the Agency has developed a verified Cancer Potency Factor
and/or a Reference Dose for lead.

BACKGROUND

     Lead is commonly found at hazardous waste  sites and is  a
contaminant of concern at approximately one-third of the sites on
the National Priorities List  (NPL).  Applicable or relevant  and
appropriate requirements (ARARs) are available  to provide cleanup
levels for lead in air and water but not in soil.  The current

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 National Ambient Air Quality  Standard  for  lead  is  1.5  ug/m3.
 While the existing Maximum Contaminant Level  (MCL)  for lead  is
 50  ppb,  the Agency has  proposed  lowering the  MCL for lead  to 10  ppb
 at  the tap and to 5 ppb at the treatment plant(^).  A  Maximum
 Contaminant Level Goal  (MCLG) for  lead of  zero  was  proposed  in
 1988(2) .   At the present time, there are no Agency-verified
 toxicological values (Reference  Dose and Cancer Potency Factor,
 ie.,  slope factor),  that can  be  used to perform a risk assessment
 and to develop protective soil cleanup levels for lead.

      Efforts are underway by  the Agency to develop  a Cancer
 Potency Factor (CPF)  and Reference Dose (RfD),  (or  similar
 approach),  for lead.  Recently,  the Science Advisory Board
 strongly suggested that the Human  Health Assessment Group  (HHAG)
 of  the Office of Research and Development  (ORD) develop a  CPF for
 lead,  which was designated by the  Agency as a B2 carcinogen  in
 1988.   The HHAG is in the process  of selecting  studies  to  derive
 such  a level.   The level and documentation package  will then  be
 sent  to  the Agency's Carcinogen  Risk Assessment Verification
 Exercise (CRAVE)  workgroup for verification.  It is expected  that
 the documentation package will be  sent to CRAVE by  the  end of
 1989.  The Office of Emergency and Remedial Response,  the  Office-
 of  Waste Programs Enforcement and  other Agency programs are
 working  with ORD in  conjunction  with the Office of  Air  Quality
 Planning and Standards  (OAQPS) to  develop an  RfD, (or  similar
 approach),  for lead.  The Office of Research  and Development  and
 OAQPS  will  develop a level to protect  the most sensitive
 populations,  namely  young children and pregnant women,   and submit.
 a documentation package to the Reference Dose workgroup .for
-verification.   It is anticipated that  the documentation package
 will be  available for review by  the fall of 1989.

 IMPLEMENTATION

     The  following guidance is to  be implemented for remedial
 actions  until  further guidance can be  developed based on an Agency
 verified  Cancer Potency Factor and/or  Reference Dose for lead.

     Guidance

     This  guidance adopts  the recommendation  contained  in  the 1985
 Centers  for Disease  Control (CDC)  statement on childhood lead
 poisoning(3)  and  is  to  be  followed when the current or  predicted
 land use  is residential.  The CDC  recommendation states that
 "...lead  in soil  and  dust appears  to be responsible for blood
 levels in  children increasing above background levels when the
 concentration  in  the  soil or dust  exceeds 500 to 1000 ppm".
 Site-specific  conditions  may warrant the use  of soil cleanup
 levels below the  500  ppm  level or  somewhat above the 1000  ppm
 level.  The  administrative record  should include background
 documents  on the  toxicology of lead and information related to
 site-specific  conditions.

-------
     The range of 500 to  1000 ppm refers to levels for total lead,
as measured by protocols  developed by the Superfund Contract
Laboratory Program.  Issues have been raised concerning the role
that the bioavailability  of lead in various chemical forms and
particle sizes should play in assessing the health risks posed by
exposure to lead in soil.  At this time, the Agency has not
developed a position regarding the bioavailability issue and
believes that additional  information is needed to develop a
position.  This guidance  may be revised as additional information
becomes available regarding the bioavailability of lead in soil.

     Blood-lead testing should not be used as the sole criterion
for evaluating the need for long-term remedial action at sites that
do not already have an extensive, long-term blood-lead data
EFFECTIVE DATE OF THIS GUIDANCE

     This interim guidance shall take effect immediately.  The
guidance does not require that cleanup levels already entered in^to.
Records of Decisions, prior to this date, be revised to conform  •
with this guidance.
1 In one case, a biokinetic uptake model developed by the Office
  of Air Quality Planning and Standards was used for a site-
  specific risk assessment.  This approach was reviewed and
  approved by Headquarters for use at the site, based on the
  adequacy of data  (due to continuing CDC studies conducted over
  many years).  These data included all children's blood-lead
  levels collected over a period of several years, as well as
  family socio-economic status, dietary conditions, conditions of
  homes and extensive environmental lead data, also collected over
  several years.  This amount of data allowed the Agency to use the
  model without a need for extensive default values.  Use of the
  model thus allowed a more precise calculation of the level of
  cleanup needed to reduce risk to children based on the amount of
  contamination from all other sources, and the effect of
  contamination levels on blood-lead levels of children.
REFERENCES

1.  53 FR 31516, August 18, 1988.
2.  53 FR 31521, August 18, 1988.
3.  Preventing Lead Poisoning in Young Children, January
    U.S. Department of Health and Human Services, Center?
    Disease Control, 99-2230.

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Risk Assesment Guidance for Superfund:
             Volume I
   Human Health Evaluation Manual

-------
                        United States
                        Environmental Protection
                        Agency
                             Office of Solid Waste and
                             Emergency Response
                             Washington, D.C. 20460
9285 7-01/FS
April 1990
       EPA
Risk  Assessment  Guidance
for Superfund:   Volume  I  —
Human  Health  Evaluation  Manual
(Part  A)
   Office of Emergency and Remedial Response
   Hazardous Site Evaluation Division, OS-230
                                                   Quick Reference Fact Sheet
The overarching mandate of the Superfund program is to protect human health and the environment from current and
potential threats posed  by uncontrolled  releases of hazardous substances.  To help meet this mandate, the U.S.
Environmental Protection Agency's (EPA's) Office of Emergency and Remedial Response (OERR) has developed a human
health evaluation process as part of its remedial response program. EPA's Human Health Evaluation Manual describes the
process of gathering information and assessing the risk to human health, and together with the Environmental Evaluation
Manual comprise a two-volume set (Volumes I and II, respectively) called Risk Assessment Guidance for Superfund (RAGS).
RAGS replaces two previous EPA guidance documents: the Superfund Public Health Evaluation Manual (SPHEM; 1986) and
the Draft Endangerment Assessment Handbook (1985).
The Human Health Evaluation Manual has three main parts:  baseline risk assessment (Part A), refinement of preliminary
remediation goals (Part B), and risk evaluation of remedial alternatives (Part C). Part A of this manual is being distributed as
an Interim Final document. Remedial project managers (RPMs) should ensure that the procedures in this guidance be used
for all new human health risk assessments conducted as part of the remedial investigation/feasibility study (RI/FS) process.
Copies of Part A can be obtained by calling EPA's Center for Environmental Research Information at 513-569-7562 (FTS
684-7562). Parts B and C are targeted for completion in 1990.
This fact sheet is designed to alert RPMs and other personnel to (1) new aspects of the Human Health Evaluation Manual
(Part A), (2) the purpose and steps of the baseline risk assessment, and (3) where additional help can be obtained.
PURPOSE OF THE HUMAN HEALTH
EVALUATION

The human health evaluation is used in the Superfund
program to:

   •   help identify which sites warrant remedial action;
   •   provide a consistent process for evaluating and
      documenting human health risk;
   •   ensure protectiveness by the  refinement of
      risk-based, site-specific remediation goals;
   •   provide focus for the FS;
   •   help to measure the effectiveness of remedial
      alternatives; and
   •   aid  in priority setting for remedial design/
      remedial action.

HUMAN HEALTH EVALUATION IN THE
RI/FS PROCESS

The RI/FS is the methodology that the Superfund program
has established for characterizing the nature and extent of
risks posed by uncontrolled hazardous waste sites and for
developing  and  evaluating  remedial options.   The
Superfund Amendments and Reauthorization Act of 1986
reemphasized the original statutory mandate that remedies
meet the threshold requirement to protect human health
                          and the environment.  Because the RI/FS is an analytical
                          process   designed   to  support   risk  management
                          decision-making,  the  assessment  of  health  and
                          environmental risk plays an essential role in  the RI/FS.
                          Highlight 1 shows the stages of the RI/FS, relating health
                          risk evaluation activities to each stage. Although the RI/FS
                          process and related risk evaluation activities are presented
                          in a fashion that makes the steps appear sequential and
                          distinct, in practice the steps are usually highly  interactive.

                          HUMAN HEALTH EVALUATION AND
                          ENDANGERMENT FINDINGS

                          One of EPA's goals in the Superfund program is to use
                          more CERCLA section 106 (i.e., imminent and substantial
                          endangerment) orders to compel potentially responsible
                          parties to design and conduct the remedial actions. In order
                          for EPA to issue and enforce a section 106 order, the
                          baseline risk assessment must be sufficient to support the
                          finding that there may be  an imminent and  substantial
                          endangerment to public  health  or  welfare  or the
                          environment because of an actual or threatened release of
                          a hazardous substance. By requiring careful adherence to
                          the Human Health Evaluation Manual (together with the
                          Environmental Evaluation Manual), the resulting baseline
                          risk assessment  should be adequate  to support an
                          endangerment finding and  thus  a CERCLA section 106
                          order.

                                                      P-inled on Recycled Paper

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                                                     -2-
Highlight 1
Human Health Risk Evaluation Activities in the RI/FS Process
RI/FS
STAGES
Protect
Scoping



RI/FS:
8Rc Cst<••:' ""ARAB? "nd ?v-^v^4.v-- -=
" ,
Delated I
Anatyslaof •
Altemativ** (FS) •

Evaluate rtak 1
alternative* 1
.;, -i
PART A OF THE MANUAL:
BASELINE RISK ASSESSMENT

The baseline risk assessment process described in Part A of
the manual  consists of  four main  steps  as  shown  in
Highlight 2. Relevant information identified through data
collection and  evaluation  (Step  1) is used to develop
exposure and toxicity assessments (Steps 2  and 3).  Risk
characterization (Step 4)  summarizes and integrates both
the toxicity and  exposure steps into quantitative and
qualitative expressions of risk.

WHAT'S NEW IN THE MANUAL
The Human Health Evaluation Manual revises and builds
upon the health evaluation process established in SPHEM.
Provided are new information and techniques gleaned from
several years of program experience  conducting risk
assessments at hazardous waste sites. Policies established
and evolved  over the years — including those resulting
from the revised National Oil and Hazardous Substances
Pollution Contingency Plan (NCP) — have  been updated
                                        and clarified.  In addition, the link between the human
                                        health evaluation, the environmental evaluation, and the
                                        RI/FS has been strengthened.

                                        HIGHLIGHTS OF THE REVISION

                                        Introduction.   Emphasizes shift  in NCP  and RI/FS
                                        philosophy toward efficiency, effectiveness, and a bias for
                                        action.

                                        Data Collection (new chapter). Encourages assessors' early
                                        involvement   in   RI/FS  planning   and   effective
                                        communication with RPMs.   Describes procedures for
                                        acquiring reliable chemical release and exposure data for
                                        quantitative assessment. The topics discussed in the Data
                                        Collection chapter are shown in Highlight 3.

                                        Data  Evaluation (new chapter).  Provides  nine steps to
                                        organize data and  to  identify a  set of chemicals  and
                                        concentrations that are of acceptable quality for use in the
                                        quantitative risk  assessment. The nine  data evaluation
                                        steps are shown in Highlight 4.
                                                 Highlight 2
                                  Part A: Baseline Risk Assessment
          Exposure Aswswnent
         Anrfyncont
         MNittywpo
•d populate
                    ocpowira pathway*
         Ectknite «cpo*ura concentration*
         for pathway*
         Estimate contaminant MakM tor
         pathway*
                                         Date Collection and Evaluation
                                           Oathar and anatyz* ratovant ad* data
                                           Man«y potential chamlcal* of concern
                            Risk Characterization
                       •  Charactwb* poMnUal tor adnra*
                          haatth affect* to occur
                          — E*dmat*canc*rrMia
                          — Eatlmata noncancar hazard
                             quotient* and Me**
                       •  Evaluate uncertainty
                       •  Summarize itakMormaUon
                                                                                 Toxicity Assessment
Colect quaKatlv* and quantitative
UNdcltyMormatlon
Determkw appropriate toxtctty vakje*

-------
                                                         -3-


Highlight 3
Topics Discussed in
Data Collection Chapter
Available site Information
Modeling parameter need*
Background sampling needs
Preliminary Identification of human ex-
posure
Overall strategy for sample collection
Need for Special Analytical Services
Activities during workplan development
and data collection


Exposure  Assessment.  Gives  specific  equations  and
parameter values for  common Superfund site exposure
pathways. Defines the revised NCP's reasonable maximum
exposure (RME) concept under both current and future
land-use conditions.  Highlight  5  defines the  RME and
describes the specific  terms  in  the  general  exposure
equation used to generate the RME.

Toxicity Assessment.  Discusses EPA  guidances, toxicity
data bases, and Superfund  technical  assistance  groups.
Provides updated discussion  of EPA's toxicity assessment
methods.  Defines  hierarchy of toxicity data sources, as
shown in Highlight 6.

Risk Characterization. Provides guidance for summarizing
risk information for use in decision-making.  Presents
                                                                                     Highlight 4
                                                                            Data Evaluation Steps
                                                           Step 1:  Gather all data available from the site
                                                                   Investigation and sort by medium.
                                                           Step 2:  Evaluate the analytical methods used.
                                                           Step 3:  Evaluate the quality of data with respect to
                                                                   sample quantitatlon limits.
                                                           Step 4:  Evaluate the quality of data with respect to
                                                                   qualifiers and codes.
                                                           Step 5:  Evaluate the quality of data with respect to
                                                                   blanks.
                                                           Step 6:  Evaluate tentatively Identified compounds.
                                                           Step 7:  Compare potential site-related contamination
                                                                   with background.
                                                           Step 8:  Develop a set of data for use in the risk
                                                                   assessment
                                                           Step 9:  If appropriate, further limit the number of
                                                                   chemicals to be carried through the risk
                                                                   assessment
                                                      expanded discussion of uncertainty. Includes examples of
                                                      helpful visual presentations of risk assessment as shown in
                                                      Highlights 7 and 8.

                                                      Documentation, Review, and Management Tools (new
                                                      chapter).  Presents new tools for the RPM, risk assessor,
                                                      and  risk  assessment  reviewer.   These new  tools  are
                                                      described  in Highlight 9.   They  include   an  RPM
                                                      involvement checklist (see Highlight  10), recommended
                                                      format for a baseline risk assessment report, and a risk
                                                      assessment reviewer's checklist.
                                                     Highlight S
                                  Reasonable Maximum  Exposure (RME)
       The reasonable maximum exposure (RME) is de-
       fined as the highest exposure that could reasonably
       be expected to occur at a site. RME is calculated
       using the following general equation,
                I = C
             x CRxEFD x
                  BW
                                  AT
        where:
        1
        C   =
        CR
       intake; the amount of chemical at the
       exchange boundary (mg/kg body
       weight- dy).
       Concentration; the average chemical
       concentration contacted over the
       exposure period (e.g.. mg/1).
       Contact Rate;  the amount of
       contaminated medium (e.g., soil, air,
       water) contacted per unit time or event
       (e.g.. l/dy)
EFD = Exposure Frequency and Duration; how
       often and how long exposure occurs
       (e.g., dy/yr. yr).
BW = Body Weight the average body weight'
       over the exposure period (kg).
AT  = Averaging Time; the time period over
       which exposure is averaged (dy).
                                                     Use a 95th upper confidence limit on the arithmetic mean
                                                     concentration contacted over the exposure period, rather than
                                                     the mean itself. Rationale:  uncertainty in the measurements
                                                     or modeling will be quantitatively considered.
                                                     Use the 95th percentile intake rate. Rationale: this will be
                                                     protective of most of the population.
Use the 95th percentile estimate if available, or best profes-
sional judgment to estimate a conservative value.  Rationale:
statistical data on these terms are rarely available; a conserva-
tive estimate is suggested rather than a best or average esti-
mate in order to be protective.
                                                             Use the arithmetic average body weight over the exposure
                                                             penod. Rationale: body weight is not always independent of
                                                             intake; by using the average, error from this dependence is
                                                             minimized; using the average rather than the 5th percentile
                                                             body weight will also reduce the number of upper-bound
                                                             values that are multiplied together.

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                      Highlight 6
      Hierarchy  of Toxicity Data Sources
         Integrated Risk Information System (IRIS)
           •   Provides verified reference doses
               (RfDs) and slope factors
           •   Updated monthly
           •   EPA's preferred source of toxicrty
               information
         Health Effects Assessment Summary Tables
         (HEAST)
           •  Provides interim as well as
              verified RfDs and slope factors
           •  Should be used only for
              chemicals not addressed in IRIS
         Other EPA References
           •  Do not necessarily provide verified
              RfDs and slope factors
           •  Should be used only for chemicals
              not found or referenced in IRIS or
              HEAST
           •  EPA's Environmental Criteria and
              Assessment Office must be contacted
              first (513-569-7300; FTS 684-7300)
                                                                              Highlight a
                                                            Example of Presentation  of Relative
                                                                   Contribution of Individual
                                                              Chemicals to Exposure Pathway
                                                             and Total Hazard Index Estimates
                                                                         Nearby Resident Population
                                                                         Chronic Hazard Index = 0.6
Hazard
index*
                                                               1 2

                                                               1 1

                                                               10

                                                               0.9

                                                               08

                                                               °7
                                                               °6
                                                               OS

                                                               04

                                                               03

                                                               02

                                                               01

                                                               00
                                     Phenol
                                     Nitrobenzene

                                     MEK
                                                                           Well Water
                                                                              Exposure Pathway
                                                          ~n* hazard Index Is equal to the sum of the hazard quotients (I e.. exposure
                                                          leveWHD) lor each chemical It b not a probability: a hazard Index or quotient ol
                                                          S1.0 Indicates that It Is unlikely (or even sensitive human populations to
                                                          experience adverse health effects
Radiation  Risk Assessment  Guidance (new  chapter).
Provides  basic  principles  and concepts of radiation
protection and  supplemental baseline risk  assessment
guidance for use at sites contaminated with radioactive
substances.

Appendices (new). Provide technical information on
absorbed vs. administered dose, and a complete index for
quick reference.
                       Highlight 7
     Example of Presentation of Relative
     Contribution of Individual Chemicals
        to Exposure Pathway and Total
             Cancer Risk Estimates
                 Nearby Resident Population
          Excess Lifetime Cancer Risk 5  3 x 10 ~*
NT'-
   i
   I io-3-
   I
          PuUic Water Supply

       s2x10-*(B2)
                                           Benzene

                                           CWordane
                                Contaminated R«h
                        Exposure Pathway
    " Tlw rttk o( dmk>|Mng cmnar to plotted on • lot tea*. » *» «* W'lndteem • p
    ol 1 emne» to lOJOO el «n xaivMml a«v«lopma onof . RnMol 10-*n>d w'conwpond »
    prebebimm ex 1 dune* m 100.000 «na l ch«ne« in 1 JOOJ08, i»»p»ctlv«»r.
    pmnttMM npnMM EPA'i tntQH-al^ntma att^ltcmlaa ot tin >gM a • pounMI
    IMMII amnagm: A « human ewanogM; and 82 « pra6«M» Humn omnoam
    (wtOi iutticlwit »vpO«ne» n •n«nM»rM md«4MU or no MidMn m KtfMM).
                                                      NEED MORE HELP?
                                                      Super-fund Health  Risk Assessment  Technical Support
                                                      Center.  This center provides program staff  and their
                                                      contractors  access  to  the  Office  of   Health  and
                                                      Environmental Assessment  (OHEA) and  other Agency
                                                      experts in the area of health risk assessment. The center is
                                                      coordinated  by  OHEA's Environmental   Criteria  and
                                                      Assessment Office in Cincinnati (513-569-7300 or  FTS
                                                      684-7300); it offers technical guidance in all areas of health
                                                      risk assessment,  including   project  scoping,   sampling
                                                      methods,  exposure assessment,  toxicity assessment, and
                                                      risk characterization.  ECAO may respond to questions
                                                      directly or refer callers to other OHEA or Agency offices.
                                                      In addition, callers may be  referred initially to regional
                                                      Toxics  Integration   Coordinators  for   responses  to
                                                      site-specific requests (see next section).

Highlight 9
New Documentation, Review,
and Management Tools
• RPM Involvement Checklist (see Highlight
10). The checklist addresses risk information
needs and includes pointers on planning and
involvement for the RPM. Involvement of
managers in the direction and development of
the risk assessment helps to avoid serious
mistakes or costly misdirections in focus or level
of effort.
• Recommended Format for a Baseline Risk
Assessment Report Consistency of
Superfund risk assessment format encourages
completeness, consistent use of results, and
allows for easier review.
• Risk Assessment Reviewer's Checklist The
checklist is intended as a guide to ensure that
critical issues concerning the quality and
adequacy of risk information are not overlooked.



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                                                     Highlight 10
                                      Checklist for RPM Involvement
   1.  Getting Organized

       •  Ensure that the workplan for the risk assessment
          contractor support Is In place (If needed).

       •  Identify EPA risk assessment support personnel (to be
          used throughout the risk assessment process).

       •  Gather relevant Information, such as appropriate
          guidances and site-specific data and reports.

       •  Identify available state, county, and other non-EPA
          resources.

       •  Prior to Special Notice, determine whether the PRPs will
          be allowed to do the risk assessment


   2.  Before the Scoping Meeting

       •  Make Initial contact with risk assessor.

       •  Provide risk assessor with available guidances and sKe
          data.

       •  Determine (or review) data collection needs for risk
          assessment, considering:

          — modeling parameter needs;

          — type and location of background samples;

          — alternate future land use;

          — possible exposure scenarios;

          — location(s) In ground water that will be used to
             evaluate future ground-water exposures;

          — the preliminary Identification of environmental
             concerns;

          — strategies (including medium and location) for sample
             collection appropriate to site/risk assessment needs;

          — statistical methods;

          — QA/QC measures of particular Importance to risk
             assessment; and

          — special analytical services needs.


   3.  At the Scoping Meeting

       •  Present risk assessment data collection needs.

       •  Ensure that the risk assessment data collection need*
          will be considered in development of the sampling and
          analysis plan.

       •  Where limited resources require that less-than-optimal
          sampling be conducted, discuss potential Impacts on risk
          assessment results.


   4.  After the Scoping Meeting

       •  Ensure that the risk assessor reviews and approves the
          sampling and analysis plan.

       •  Consult with the Agency for Toxic Substances and
          Disease Registry (ATSDR) if human monitoring Is
          planned.
5. During Sampling and Analysis

   •   Ensure that risk assessment needs are being met
       during sampling.

   •   Provide risk assessor with any preliminary sampling
       results so that he/she can determine If sampling
       should be refocused.

   •   Consult with ATSDR to obtain a status report on any
       human monitoring that Is being conducted. Provide
       any results to risk assessor.


6. During Development of Risk Assessment

   •   Meet with risk assessor to discuss basis for excluding
       chemicals from the risk assessment (and developing
       the list of chemicals of potential concern). Confirm
       appropriateness of excluding chemicals.

   •   Confirm determination of alternate future land use.

   •   Confirm locations) In ground water that will be used
       to evaluate future ground-water exposures.

   •   Understand basis for selection of pathways and
       potentially exposed populations.

   •   Facilitate discussions between risk assessor and EPA
       risk assessment support personnel on the following
       points:

       -  the use of any major exposure, fate, and transport
          models (e.g., air or ground-water dispersion
          models);

       — site-specific exposure assumptions;

       — non-EPA-derived toxiclty values; and

       — appropriate level of detail for uncertainty analysis,
          and the degree to which uncertainties will be
          quantified.

   •   Discuss and approve combination of pathway risks
       and hazard Indices.

   •   Ensure that results of risk characterization have been
       compared with ATSDR health assessments and any
       site-specific human studies that might be available.


7. Reviewing the Risk Assessment

   •   Allow sufficient time for review and Incorporation of
       comments.

   •   Ensure that reviewers' comments are addressed.

8. Communicating the Risk Assessment

   •   Plan a briefing among technical staff to discuss
       significant findings and uncertainties.

   •   Discuss development of graphics, tools, and
       presentations to assist risk management decisions.

   •   Consult with other groups (e.g., community relations
       staff), as appropriate.
   •   Brief upper management
Regional   Toxics    Integration    Coordinators    and
Headquarters Contacts.   Superfund Toxics  Integration
Coordinators  are  located  in  each region.  Questions
regarding  site-specific  Superfund risk  assessment issues
should be referred to the appropriate individuals listed in
  Highlight 11. The Toxics Integration Branch, OERR, may
  be  contacted  at  202-475-9486  (FTS 475-9486) for
  technical information sources, availability  of guidances,
  and related program directives.

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                                          -6-
                                      HlghllgMU
                      Regional Toxics Integration Coordinators
 Region       Name and Address

    I          Sarah Levinson
              Waste Management Division (HSS-CAN-7)
              EPA Region I
              John F. Kennedy Federal Building
              Boston, MA 02203

    II         Peter Qrevatt
              Program Support Branch
              ERR Division
              EPA Region II
              26 Federal Plaza
              New York, NY 10278

    III         Richard Brunker
              Hazardous Waste
              Management Division (3HW15)
              EPA Region III
              841 Chestnut Street
              Philadelphia, PA 19107

    IV         Elmer Akin
              Waste Management Division
              EPA Region IV
              345 Courtland Street, NE
              Atlanta, GA 30365

    V         Steve Ostrodka
              Technical Support Unit (5HSM-12)
              EPA Region V
              230 South Dearborn Street
              Chicago, IL 60604

    VI         Jon Rauscher
              EPA Region VI (6H-SR)
              First Interstate Bank Tower
              1445 Ross Avenue
              Dallas, TX 75202-2733

    VII        Superfund Branch
              EPA Region VII
              726 Minnesota Avenue
              Kansas City, KS  66101

    VIM        Chris Weis
              EPA Region VIII (8HWM-SR)
              999 18th Street, Suite 500
              Denver, CO 80202-2405

    IX         Gerald Hiatt
              Technical Support Section (H-8-4)
              Superfund Program
              EPA Region IX
              1235 Mission Street
              San Francisco, CA 94103

    X         Pat Cirone
              EPA Region X (ES-098)
              1200 Sixth Avenue
              Seattle, WA 98101
Phone Number

FTS 833-1504
617-223-5504
FTS 264-8775
212-264-6323
FTS 597-0804
215-597-0804
FTS 257-1586
404-347-1586
FTS 886-3011
312-886-3011
FTS 255-2198
214-655-2198
FTS 236-7052*
913-551-7052
FTS 330-7655
303-294-7655
FTS 484-1914
415-744-1914
FTS 399-1597
206-442-1597
*_Caller must have FTS .2000. Jf not .use .commercial number.

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Role of the Baseline Risk Assessment in
Superfund Remedy Selection Decisions

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                                                      PB91-921359
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, O.C. 20460
          APR 2 2 1991
                                                         E OF
                                            SOLID WASTE AND EMERGENCY RESPONSE
                                 OSWER DIRECTIVE 9355.0-30
MEMORANDUM

SUBJECT:


FROM:


TO:
Role of the Baseline Risk Assessment in Superfund
Remedy Select ioji Decisions
Don R. Clay
Assistant Admlhistr

Directors, Waste Management  Division
     Regions I, IV, v, vn,  vin
Director, Emergency and Remedial  Response Division
     Region II
Directors, Hazardous Waste Management Division
     Regions III, VI,  IX
Director, Hazardous Waste Division,
     Region X
Purpose

     The purpose  of this memorandum is to clarify the  role  of  the
baseline risk assessment in developing Superfund remedial
alternatives and  supporting risk management decisions.

Specifically, the following points are made in the memorandum:
     Where the  cumulative carcinogenic site risk to an  individual
     based on reasonable maximum exposure for both current  and
     future land  use is less than 10'4, and the  non-carcinogenic
     hazard quotient is less than 1, action generally is  not
     warranted  unless there are adverse environmental impacts.
     However, if  MCLs or non-zero MCLGs are exceeded, action
     generally  is warranted.

     Other chemical-specific ARARs may also be  used to  determine
     whether a  site  warrants remediation.

     A risk manager  may also decide that a baseline risk  level
     less than  10"4 is unacceptable due to site  specific reasons
     and that remedial action is warranted.
                    REPRODUCED BY
                    U.S. DEPARTMENT OF COMMERCE
                          NATIONAL TECHNICAL
                          INFORMATION SERVICE
                          SPRINGFIELD, VA 22161
                                          Printed on Recycled Paper

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o    compliance with a chemical-specific ARAR generally will  be
     considered protective even if it is outside the risk range
     (unless there are extenuating circumstances such as exposure
     to multiple contaminants or pathways of exposure).

o    The upper boundary of the risk range is not a discrete line
     at 1 x 10~4, although EPA generally uses 1 x 10"* in making
     risk management decisions.  A specific risk estimate around
     10"4 may be considered acceptable if justified based on
     site-specific conditions.

o    The ROD should clearly justify the use of any non-standard
     exposure factors and the need for remedial action if
     baseline risks are within the generally acceptable risk
     range.  The ROD should also include a table listing the
     final remediation goals and the corresponding risk level for
     each chemical of concern.

Background

     The 1990 National Contingency Plan (NCP) (55 Fed.  Reg. 8665-
8865 (Mar. 8, 1990)) calls for a site-specific baseline risk
assessment to be conducted, as appropriate, as part of the
remedial investigation (Section 300.430(d)(1)).  Specifically,
the NCP states that the baseline risk assessment should
"characterize the current and potential threats to human health
and the environment that may be posed by contaminants migrating
to ground water or surface water, releasing to air, leaching
through soil, remaining in the soil, and bioaccumulating in the
food chain" (Section 300.430(d)(4)).  The primary purpose of the
baseline risk assessment is to provide risk managers with an
understanding of the actual and potential risks to human health
and the environment posed by the site and any uncertainties
associated with the assessment.  This information may be useful
in determining whether a current or potential threat to human
health or the environment exists that warrants remedial action.

     The "Risk Assessment Guidance for Superfund:  Volume  I,
Human Health Evaluation Manual - Part A"  (HHEM)  (EPA/540/1-
89/002) provides guidance on how to conduct the human health
portion of the baseline risk assessment.  Volume II of  the "Risk
Assessment Guidance for Superfund" the "Environmental Evaluation
Manual" (EPA/540/1-89/001) and the companion manual, "Ecological
Assessment of Hazardous Waste Sites:  A Field and  Laboratory
Reference" (EPA/600/3-89/013) provide guidance on  conducting  the
environmental portion of the baseline risk assessment.  Other
pertinent guidance  includes the  "Guidance  for Conducting Remedial
Investigations and  Feasibility Studies Under CERCLA"  (RI/FS
guidance, EPA/540/G-89/004), which describes how the baseline
risk assessment fits into the overall RI/FS  process.   "Guidance
on Preparing Superfund Decision  Documents"  (ROD  guidance)

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 (EPA/624/1-87/001) provides information on how to document the
 results of the baseline risk assessment in the ROD.

 Objective

     The objective of this memorandum is to provide further
 guidance on how to use the baseline risk assessment to make risk
 management decisions such as determining whether remedial action
 under CERCLA Sections 104 or 106 is necessary.  This memorandum
 also clarifies the use of the baseline risk assessment in
 selecting appropriate remedies under CERCLA Section 121,  promotes
 consistency in preparing site-specific risk assessments,  and
 helps ensure that appropriate documentation from the baseline
 risk assessment is included in Superfund remedy selection
 documents.

 Implementation

 RISKS WARRANTING REMEDIAL ACTION

     Whenever there is a release or substantial threat of release
 of a hazardous substance into the environment (or a release or
 threat of release into the environment of a pollutant or
 contaminant "which may present an imminent and substantial danger
 to public health or welfare"), Section 104(a)(1) of CERCLA
 provides EPA with the authority to take any response action
 consistent with the National Contingency Plan it deems necessary
 to protect public health or welfare or the environment.  Section
 106 of CERCLA grants EPA the authority to require potentially
 responsible parties (or others) to perform removal or remedial
 actions "when the President determines that there may be an
 imminent and substantial endangerment to the public health or
welfare or the environment because of an actual or threatened
 release of a hazardous substance from a facility."

     As a general policy and in order to operate a unified
Superfund program, EPA generally uses the results of the baseline
 risk assessment to establish the basis for taking a remedial
action using either Section 104 or 106 authority.  EPA may use
the results of the baseline risk assessments to determine whether
a release or threatened release poses an unacceptable risk to
human health or the environment that warrants remedial action and
to determine if a site presents an imminent and substantial
endangerment.  The risk assessment methodology  for all sites
should be the same regardless of whether the RI/FS or remedial
design and remedial action is performed by EPA or potentially
responsible parties.

     Generally, where the baseline risk assessment indicates  that
a cumulative site risk to an individual using reasonable maximum
exposure assumptions for either current or future land use
exceeds the 10"4 lifetime excess cancer risk  end of the risk

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range, action under CERCLA is generally warranted at the site.
For sites where the cumulative site risk to an individual based
on reasonable maximum exposure for both current and future land
use is less than 10~4, action generally is not warranted, but may
be warranted if a chemical specific standard that defines
acceptable risk is violated or unless there are noncarcinogenic
effects or an adverse environmental impact that warrants action.
A risk manager may also decide that a lower level of risk to
human health is unacceptable and that remedial action is
warranted where, for example, there are uncertainties in the risk
assessment results.  Records of Decision for remedial actions
taken at sites posing risks within the 10~4 to 10"6  risk  range
must explain why remedial action is warranted.

     The cumulative site baseline risk should include all media
that the reasonable maximum exposure scenario indicates are
appropriate to combine and should not assume that institutional
controls or fences will account for risk reduction.  For
noncarcinogenic effects of toxicants, unacceptable risk occurs
when exposures exceed levels which represent concentrations to
which the human population, including sensitive subgroups, may be
exposed without adverse effect during a lifetime or part of a
lifetime, as appropriate to address teratogenic and developmental
effects.

     Chemical specific standards that define acceptable risk
levels (e.g., non-zero MCLGs, MCLs) also may be used to determine
whether an exposure is associated with an unacceptable  risk to
human health or the environment and whether remedial action under
Section 104 or 106 is warranted.  For ground water actions, MCLs
and non-zero MCLGs will generally be used to gauge whether
remedial action is warranted.

     EPA uses the general 10~4 to 10"6 risk  range  as a  "target
range" within which the Agency strives to manage risks  as part  of
a Superfund cleanup.  Once a decision has been made to  take an
action, the Agency has expressed a preference for cleanups
achieving the more protective end of the range (i.e., 10"6) ,
although waste management strategies achieving reductions in site
risks anywhere within the risk range may be deemed acceptable by
the EPA risk manager.  Furthermore, the upper boundary  of the
risk range is not a discrete line at 1 x 10~4, although  EPA
generally uses 1 x 10"4 in making risk management decisions.  A
specific risk estimate around 10'4 may be considered acceptable
if justified based on site-specific conditions,  including any
remaining uncertainties on the nature and extent of contamination
and associated risks.  Therefore, in certain cases EPA  may
consider risk estimates slightly greater than 1 x  10"4 to be
protective.

     When an ARAR for a specific chemical  (or in some cases a
group of chemicals) defines an acceptable  level  of exposure,

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 compliance with  the  ARAR will generally be considered protective
 even  if  it is  outside  the  risk range  (unless there are
 extenuating  circumstances  such as exposure to multiple
 contaminants or  pathways of exposure).  Conversely, in certain
 situations EPA may determine that risks less than
 1 x 10'4  are  not  sufficiently protective and warrant remedial
 action.

      Where current conditions have not resulted in a release
 posing risks that warrant  action but there is a significant
 possibility  that a release will occur that is likely to result in
 an unacceptable  risk,  remedial action may also be taken.  The
 significance of  the  potential future release may be evaluated in
 part  based on  the quantities of material at the site and the
 environmental  setting.

 RISKS CONSIDERED IN  RISK MANAGEMENT DECISION

     As noted  above, both  current and reasonably likely future
 risks need to  be considered in order to demonstrate that a site
 does not present an  unacceptable risk to human health and the
 environment.   An adequate  consideration of future risk may
 necessitate  the  assessment of risks assuming a land use different
 from that which  currently  exists at the site.  The potential land
 use associated with  the highest level of exposure and risk that
 can reasonably be expected to occur should be addressed in the
 baseline risk  assessment.  Further, this land use and these
 exposure assumptions should be used in developing remediation
 goals.

     The preamble to the NCP states that EPA will consider future
 land use as  residential in many cases.  In general, residential
 areas should be  assumed to remain residential; and undeveloped
 areas can be assumed to be residential in the future unless sites
 are in areas where residential land use is unreasonable.  Often
 the exposure scenarios based on potential future residential land
 use provide  the  greatest risk estimates (e.g., reasonable maximum
 exposure scenario) and are important considerations in deciding
 whether to take  action (55 Fed. Reg. at 8710).

     However,  the NCP also states that "the assumption of future
 residential  land use may not be justifiable if the probability
 that the site  will support residential use in the future is
 small."  Sites that  are surrounded by operating industrial
 facilities can be assumed  to remain as industrial areas unless
 there is an  indication that this is not appropriate.  Other land
uses,  such as  recreational or agricultural, may be used, if
appropriate.   When exposures based on reasonable future land use
are used to  estimate risk, the NCP preamble states that the ROD
 "should include  a qualitative assessment of the likelihood that
the assumed  future land use will occur" (55 Fed. Reg. at 8710).

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     Unacceptable environmental risks also may  prompt  remedial
action and may occur where there is no significant  risk to  human
health.  Threats or potential threats to sensitive  habitats,  such
as wetlands, and critical habitats of species protected under the
Endangered Species Act are especially important to  consider when
determining whether to take an action under CERCLA  Section  104  cr
106.  Ambient Water Quality Criteria for aquatic organisms  are
chemical-specific standards that will generally be  considered
when determining whether to take an action based on the
environmental risk of releases to surface waters.

NO-ACTION DECISIONS

     If the baseline risk assessment and the comparison of
exposure concentrations to chemical-specific standards indicates
that there is no unacceptable risk to human health  or  the
environment and that no remedial action is warranted,  then  the
CERCLA Section 121 cleanup standards for selection  of  a Superfund
remedy, including the requirement to meet applicable or relevant
and appropriate requirements (ARARs), are not triggered.  CERCLA
section 121 (a) requires only that those remedial actions that
are "determined to be necessary ... under section 104  or ... 106
... be selected in accordance with section 121."  If EPA
determines that an action is necessary, the remedial action must
attain ARARs, unless a waiver is invoked.  Of course,  sites that
do not warrant action under CERCLA sections 104 or 106 may
warrant action under another State or Federal statute, such as
RCRA subtitle D requirements for the appropriate closure of a
solid waste landfill.

     The decision not to take action at an NPL site under section
104 and 106 should also be documented in a ROD.  The decision
documentation process should include the preparation of a
proposed plan for public comment, ROD and eventually a closeout
report and Federal Register deletion notice.

POINT OF DEPARTURE WHEN ACTION WARRANTED

     Once remedial action has been determined to be warranted,
the results of the baseline risk assessment may be used to  modify
preliminary remediation goals.  These preliminary goals are
developed at scoping based on ARARs and the  10"6 cancer risk
point of departure pursuant to NCP section 300.430(e)  (2) (i) .

USE OF BASELINE RISK ASSESSMENT TO MODIFY PRELIMINARY  REMEDIATION
GOALS

     Remediation goals developed under  CERCLA Section  121  are
generally medium-specific chemical concentrations  that will pose
no unacceptable threat to human health  and the  environment.
Preliminary remediation goals are developed  early  in  the RI/FS
process based on ARARs and other  readily  available  information,

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 such  as  concentrations associated with 10"6 cancer risk or a
 hazard quotient  equal to one  for noncarcinogens calculated fron
 EPA toxicity  information.  These preliminary goals may be
 modified based on  results of  the baseline risk assessment, which
 clarifies  exposure pathways and may identify situations where
 cumulative risk  of multiple contaminants or multiple exposure
 pathways at the  site indicate the need for more or less stringent
 cleanup  levels than those initially developed as preliminary
 remediation goals.  In addition to being modified based on the
 baseline risk assessment, preliminary remediation goals and the
 corresponding cleanup levels may also be modified based on the
 given waste management strategy selected at the time of remedy
 selection  that is based on the balancing of the nine criteria
 used  for remedy  selection (55 Fed.Reg. at 8717 and 8718).

 EARLY AND  INTERIM ACTIONS

     Early operable unit actions (e.g., hot spot removal and
 treatment)  and interim actions (e.g., temporary storage or ground
 water plume containment) may be taken to respond to an immediate
 site threat or to take advantage of an opportunity to
 significantly reduce risk quickly (55 Fed. Reg. at 8705).  For
 example, an interim containment action may be particularly useful
 early in the process for complicated ground water remedial
 actions, where concentrations greater than MCLs provide a good
 indication that  remediation of a potential drinking water source
 is necessary; such quick remedial action is important to prevent
 further  spread of the contaminant plume while a final ground
 water remedy is  being developed.

     Early and interim action RODs do not require a completed
 baseline risk assessment, although enough information must be
 available  to demonstrate the potential for risk and the need to
 take action.  Data sufficient to support the interim action
 decision can be  extracted from the ongoing RI/FS for the site and
 set out  in a focused feasibility study or other appropriate
 document that includes a short analysis of a limited number of
 alternatives  (55 Fed. Reg. at 8704).  These data should  include a
 summary  of contaminants of concern,  concentrations and relevant
 exposure information.  A discussion should accompany these data
 explaining the need for immediate remedial action based  on the
 presence of contamination that, if left unaddressed in the short-
 term,  either contributes immediate risk or is likely to
 contribute  to increased site risk or degradation of the
 environment/natural resources.  The early and interim action RODs
 should note that some exposure pathways at the site may  not be
 addressed  by the action.

     An  interim  action ROD eventually must be followed by a
 subsequent  ROD for that operable unit based on the complete
RI/FS, that includes the baseline risk assessment, in order to
document long-term protection of human health and the environment

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                                8

at that portion of the site.   The interim action ROD,  however,
should demonstrate qualitatively (and quantitatively if  possible)
that there is a risk or potential for risk and explain how the
temporary measures selected will address a portion of this risk.

DOCUMENTATION OF BASELINE RISK ASSESSMENT RESULTS IN THE ROD

     The Summary of Site Risks section of the ROD should include
a discussion of the risks associated with current and future land
use and a table presenting these risk levels for each exposure
medium (e.g., direct contact with soil by potential future
residents exposed via incidental soil ingestion and dermal
contact).  In some situations, risks from exposure via more than
one medium (e.g., soil and drinking water)  will affect the same
potentially exposed individual at the same time.  It is
appropriate in these situations to combine the risks from the
different media to give an indication of total risk that an
individual may be exposed to from a site.

     In addition to summarizing the baseline risk assessment
information,  the ROD (except no-action RODs) should include how
remedial alternatives will reduce risks by achieving cleanup
levels through treatment or by eliminating exposures through
engineering controls for each contaminant of concern in  each
appropriate medium.

     The Comparative Analysis should include a discussion of each
of the nine criteria; consideration of risk is part of the
discussion of several of the criteria.  The discussion of overall
protection of human health and the environment should include a
discussion of how the remedy will eliminate, reduce, or control
risks identified in the baseline risk assessment posed through
each pathway and whether exposure levels will be reduced to
acceptable levels.  For example, if direct human contact with
contaminated soil is identified as a significant risk at a site,
the ROD (except no-action RODs) should indicate how the selected
remedy will eliminate or control exposures to ensure protection
of human health.  The discussion of long-term effectiveness  and
permanence should include, where appropriate, an assessment  of
the residual risk from untreated residual waste remaining at the
site.   The short-term effectiveness discussion should  address
risks during remedial action to those on-site and  nearby.

     Finally, that part of the Decision  Summary  in  the  ROD  that
focuses on the selected remedy should show:

     o    the chemical-specific remediation  level  and
          corresponding chemical-specific risk  level(s)  to  be
          attained at the conclusion of  the  response  action and
          the points  (or area) of compliance  for  the  media  being
          addressed; and

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     o    The  lead agency's basis for the remediation levels
          (e.g., risk calculation, ARARs).

The attached table, "Remediation Levels and Corresponding Risks,"
provides a direct means of displaying this information for health
risks and, where appropriate, environmental protection (Table 1).
The table should be completed for all media for which the ROD
selects final  cleanup levels.  The table should serve as a
summary of text in the selected remedy section of the ROD
Decision Summary.  For interim action RODs, only qualitative
statements may be possible.

     Additional guidance on the baseline risk assessment and its
role in remedy selection is available from several sources.  For
guidance on the baseline risk assessment contact:

     David Bennett, Chief
     Toxics Integration Branch (OS-230)
     Hazardous Site Evaluation Division
     Office of Emergency and Remedial Response
     phone:   (FTS)  or (202) 475-9486.

For additional guidance on the interaction of the baseline risk
assessment and Superfund remedy selection,  contact:

     David Cooper
     Remedial  Operations and Guidance Branch  (OS-220W)
     Hazardous Site Control Division
     Office of Emergency and Remedial Response
     phone:   (FTS)  398-8361
     (commercial phone:  (703) 308-8361)

For guidance on enforcement-lead sites contact:

     Stephen Ells
     Guidance  and Evaluation Branch  (OS-510)
     CERCLA Enforcement Division
     Office of Waste Programs Enforcement
     phone:   (FTS)  or (202) 475-9803.
NOTICE:  The policies set out in this memorandum are  intended
solely as guidance.  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 the guidance provided in this memorandum, or to act at
variance with the guidance, based on an analysis of specific site
circumstances.  Remedy selection decisions are made and justified
on a case-specific basis.  The Agency also reserves the right  to
change this guidance at any time without public notice.

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                                                                TABLE 1
                                         Remediation Goals and Corresponding Risks a
Final Remediation Levels
Medium
SOIL
GROUND
WATER
SEDIMENT

Remediation
Chemical Level"
A
B
C
B
C
F
G
Q
2.0 ppm
17.0 ppm
5.0 ppm
0. 1 ppm
4.0 ppm
7.0 ppm
15.0 ppm
100.0 ppm

Point of
Compliance r
All facility
grounds
Waste
Management
Unit
Boundary
Downstream
from point A

Basis
of Goal
HI
Risk
GWRlsk
Risk
MCL
MCLG
MCL
Ecological
Effects

Corresponding Risk Levels"
Chemical-Specific
Cancer
N/A
1.0 x 10 5
N/A
l.Ox 10 5
1.0 x 10 5
N/A
6.0 x 10 6
N/A
^^^^^^^^^^^^jj^^l^^^HESBSB^BK^S
RMERlsk*
Non-Cancer
0.5
N/A
N/A
N/A
N/A
0.2
0.09
N/A

a.  Prepare summary sheets for selected remedy.

b.  Final Remediation bevels are based on preliminary remediation goals
developed In the Feasibility Study (FS) (Rl/FS Guidance 4.2.1) as modified
through the nine criteria evaluation and engineering design.  In the process of
achieving remediation levels for each chemical, some chemlrals will be
reduced to concentrations below their remediation levels.

c.  Chemical specific risks correspond to associated remedial Ion levels.  Risks
do not consider effects of exposures to olher chemicals or media.  If
appropriate,  risks may be summed lo calculate media specific risks.
Short term effectiveness Is not considered.
d. Cancer risks are measured as Individual Incremenlal lifetime: non-cancer.
as Hazard Quotients.

e. Bases for values should be explained In the earlier Record Of Decision
(ROD) table.

f.  Bases for location arid method for determining attainment (e.g.. maximum
value detected over area XYZ) should be explained In the description of QIC
selected remedy.

N/A Not applicable

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      Interim RCRA/CERCLA Guidance on
           Non-Contiguous Sites and
On-Site Management of Waste and Treatment Residue

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\
         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                    WASHINGTON, D.C. 20460
                        MAR 271986
                                                     OFFICE OF
                                            SOLID WASTE AND EMERGENCY RESPONSE
                                                 9347.0-1
 MEMORANDUM

 SUBJECT:   Interim  RCRA/CERCLA  Guidance  on  Non-Contiguous Sites
          and  Op-Site  Management  of Waste  and  Treatment Residue
 FROM:     J^Winston  Porter
          Assistant Administrator

 TO:       Regional Administrators
          Regions I - X


     Region VI has recently  raised  several  RCRA/CERCLA  interface
 issues  that have broad implications  for  remedial  actions  at
 many other Superfund  sites.  The purpose of  this  memorandum  is
 to lay  out EPA policy on several of  these  issues,  including:

    1.  Combined treatment of CERCLA waste  from non-contiguous
        locat ions;

    2.  On-site disposal of  treatment  residue;

    3.  Limitations on the construction  of  hazardous  waste
        incinerators  for on-site CERCLA  use;  and

    4.  Off-site treatment of waste and  redisposal on-site.

     This memorandum  and attachment  represent  interim guidance
which should be used  now, but will  be  refined  following  regional
review.  Please submit your  comments on  this  interim  guidance  to
Betsy Shaw (FTS 382-3304) of the Hazardous  Site Control  Division,
Office of Emergency and Remedial Response  by  April 28,  1986.   We
are particularly interested  in comments  which  address the  impli-
cations of this guidance for Superfund removal actions  at  both
NPL and non-NPL sites.

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                                                    9347.0-1
                              -2-
Select RCRA/CERCLA Issues:

1.   Combined treatment and/or disposal of CERCLA waste  from
    non-contiguous NPL sites

        NPL sites may be combined for remedial action if the
    following statutory criteria are met:  the sites must be
    geographically close or pose similar threats to public
    health and the environment (CERCLA §104 (d)(4)).  If combined
    remedial actions will involve the transport of waste from
    one site to another site, the wastes must  be compatible  for
    the selected treatment or disposal method  and managed in  a
    manner that is part of the highly reliable long-term remedy
    selected for that site or group of sites.   Combined remedies
    must be cost-effective and should not result in any significant
    additional short-term impacts on public health and  the
    environment at the receiving site.  As in  every case, CERCLA
    waste which is transported must be manifested.  The Record
    of Decision (ROD) for a remedial action that involves more
    than one site should state that several sites are being
    treated as one and that their combined treatment constitutes
    on-site action.   (See attachment.)

2.   On-site management of waste and treatment  residue -

         EPA interprets CERCLA to require that off-site treatment,
    storage and disposal of hazardous wastes comply with all  RCRA
    requirements, including permitting.   With  respect to on-site
    disposal, the National Contingency Plan (50 FR 47912,
    November 20,  1985) requires that CERCLA activities  meet  the
    technical requirements of RCRA (and other  Federal environmental
    requirements) that are applicable or relevant and appropriate^
    while the procedural requirements, such as permitting, need
    not be met.

         Waste and treatment residues may be managed on-site
    in several ways.   The approach selected will depend on the
    cost-effectiveness analysis at each site.   One approach is
    to remove the waste (and treat if desired) and dispose of
    the waste and/or treatment residue in a new on-site land
    disposal unit.  This unit would meet the technical RCRA
    Subtitle C land  disposal requirements of 40 CFR Part 264
    (e.g.  §264.301 design and operating requirements; and land
    disposal closure and post closu're care requirements  in
    §264.310) .
  "Applicable  requirements"  are those Federal requirements that
  would  be legally -applicable if the response actions were not
  undertaken pursuant to CERCLA §104 and §106.  "Relevant and
  appropriate  requirements"  are those Federal requirements that,
  while  not applicable,  are  designed to apply to problems
  sufficiently similar to those encountered at CERCLA sites that
  their  application  is appropriate.

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                                                      9347.0-1
                               -3-
         The second approach allows wasta  to be removed, treated
    and  the residuals to be replaced in the area from which they
    originated.  The area would then be capped and monitored
    consistent with the technical requirements of land disposal
    closure (§264.310).  Under this approach, a double liner/
    leachate collection system would not be required if the
    wastes are removed during closure for  the purpose of treating
    them to enhance the effectiveness of the closure.

         A third approach requires no further management of waste
    or treatment residue if the waste can  be evaluated, deter-
    mined to be non-hazardous and delisted.  This would normally
    entail preparing a delisting analysis  using the Vertical and
    Horizontal Spread (VHS) model (50 FR 48886, November 27, 1985)
    or other similar generic models that do not consider site
    specific factors.  A delisting petition is not required for
    on-site CERCLA actions.

         Finally, the National Contingency Plan (40 FR 47947 -
    47948) provides for selection of a remedy that does not
    attain applicable or relevant and appropriate requirements
    if:  1) the alternative is only an interim remedy; 2) the
    need to use the Fund at other sites outweighs the need to
    implement a remedy that fully attains  all requirements;
    3) it is technically impractical to implement a remedy that
    meets all applicable or relevant and appropriate requirements;
    4) meeting all such requirements will  result in an unacceptable
    environmental impact;  or 5) there is an overriding public
    interest related to enforcement.

         The determination that RCRA requirements for treatment,
    storage and disposal will be met should be made during the
    Remedial Investigation and Feasibility Study (RI/FS).  In
    the case of incinerator residue, a waste analysis should
    be conducted during the RI to provide  the necessary data.
    Subsequent analyses, including a test  burn, may be conducted
    during Remedial Design (RD) as appropriate on a case by case
    basis.   Assurance of the consistency of the remedy with
    RCRA and other applicable or relevant  and appropriate
    Federal  requirements should be presented in the ROD, and,
    if appropriate,  reviewed again during  RD.

3.   Limitations on the construction of hazardous waste incinerators
    for on-site CERCLA use

         If  an incinerator is to be constructed for on-site
    remedial  action,  there should be a clear intent to dismantle
    or remove  the unit after the CERCLA action is completed.
    Dismantling or removal should be a part of the remedy presented
    in the  ROD and funds should be included in the financial or
    contractual documents.   Should there be plans to accept
    commercial  waste  at the facility after the CERCLA wastes have
    been  treated  or  destroyed,  it is EPA policy that a RCRA
    permit  be  obtained before the unit is  constructed.  (See
    attachment. )

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                                                       9347.0-1
                              -4-
    Off-site treatment of waste and redisposal on-site

         On-site disposal may involve transport of waste off-site
    for treatment or storage if the CERCLA waste or treatment
    residue is ultimately disposed of at the site of waste origin.
    For this activity, the CERCLA waste is manifested to and from
    the site and maintained separately throughout all off-site
    activities.

         If you  have any questions regarding this memorandum or
    attachment,  please call Betsy Shaw or Bill Hanson (FTS 382-2345
Attachment

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                                                          9347.0-1


Attachment:  Interim RCRA/CERCLA Guidance on Non-Contiguous Sites
             and On-Site Management of Waste and Treatment Residue


       Combining Hazardous Waste Sites for Remedial Action


Background -.

     Several situations have arisen where it may be advantageous
to combine several NPL sites together for the purpose of conducting
a more effective remedial action.  Subject to the requirements in
CERCLA §104 (d)(4), sites in proximity to one another, sites with
similar wastes, and sites with the same PRPs may be good candidates
for combined remedial actions.  A treatment system or incinerator,
for example, may be more efficient treating wastes from several
sites.  Expected economies of scale would lower the unit costs
and favor more reliable technologies.  Overall, protection of
public health and the environment may increase if the waste of
several smaller sites are combined at a central treatment or
disposal location.

Legislative Authority:  Section 104(d)(4) of CERCLA states that
non-contiguous sites may be treated as one site when the separate
sites are reasonably related on the basis of:

     1) Geography; or
     2) Threat or potential threat to public health and the
        environment.

Cost-Effective Reasons for Combining NPL Sites for Remedial Action

     Several different circumstances may occur that favor combining
site remedial actions.

     Example 1:  Incineration is effective for destroying wastes
                 at several closely arrayed sites.  One alternative
                 is to use a mobile incinerator at each site.
                 Another alternative that may be cost effective  is
                 to incinerate the wastes of several sites at one
                 location.  The residue could be disposed at the
                 original site but, again, it would probably be
                 more cost-effective to dispose of all ash at the
                 same location.

     Example 2:  Construction of a new on-site land disposal facility
                 has been found to be cost effective at site A.
                 Wastes at nearby site B are similar in character
                 and a small quantity needs to be managed.

                 Site B wastes could be managed on-site but  it
                 could be less expensive and more effective  to
                 dispose of the waste at Site A.

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                               -2-                       9347.0-1
     Example 3:   Site A and Site B have similar wastes and are
                 close to one another.   RCRA closure with a cap
                 has been found to be  cost effective at both
                 sites.  It may be cost effective to design and
                 remediate both sites  at the same time.  Therefore,
                 the State or Region would like to contract with
                 one design firm and one construction company to
                 undertake both remedies.

     Regions should identify opportunities to combine RI/FSs
for several NPL  sites in the Site Management Plan or other pre-
remedial activities.  Combining RI/FSs may improve the timing
and effectiveness of remedial actions  and should be shown in the
Superfund Comprehensive Accomplishments Plan (SCAP).

Criteria for Treating Non-Contiguous Sites as One

     The September 21, 1984 NPL listing (40 FR 37076) provides
the flexibility  to respond to several  sites listed separately on
the NPL with a single response if the  statutory factors are met
and it appears cost-effective to do so.

     The following criteria would be used to treat non-contiguous
sites as one when transportation of the waste is involved:

     1.  Sites are reasonably close to one another;

     2.  Wastes  must be compatible for the selected treatment or
         disposal approach;

     3.  Wastes  that are transported to another site need  to be
         managed in a manner that is part of a highly  reliable,
         long-term remedy;1 and

     4.  Incremental short-term impacts  (e.g. sudden  releases,
         fugitive dust and fumes) to public health and the
         environment at the receiving site will be minimal.
         (This factor is important when  the receiving  site  is
         located near a residential community.)

     Of course,  the remedy must also be  cost-effective by  either
costing less or by providing increased or more  reliable  protection
of public health and environment than two separate  remedies.

     When short-term  impacts are  found  to be significant,  combining
sites may be determined to be  inappropriate and  the  remedy may
be reconfigured.  Options  include but are not  limited to:
   This type of remedy generally  is defined  as:
   a.  Requiring little or no long-term active O/M;
   b.  Relatively low probability of  release  to  the  environment;
   c.  If a release did occur,  it would not  endanger public
         health or the environment.

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                                -3-
      1.
      2.
      3.
Use another hazardous waste site where there would be
fewer  impacts;

Pretreat wastes at the original site locations
(e.g., metal extraction) or improve materials handling
procedures;
Dispose of treated residuals
at originating sites.
          (e.g., incineration ash)
 If  incremental  short-term  impacts  are  significant  and cannot be
 mitigated,  then  non-contiguous  sites should not be  treated as one
 for  the  purpose  of  combined  treatment  or disposal  regardless of
 cost-effectiveness.

 CERCLA Compliance with Other Environmental Laws

     Under  response actions occuring at non-contiguous sites which
 are  treated as on-site actions, Superfund or PRPs  under an EPA
 approved enforcement action would:
     1
     2.
Manifest hazardous
site;
wastes transported to another
Meet the applicable or relevant and appropriate technical
requirements of RCRA TSD facilities but would not be
required to obtain RCRA permits.
Limitation:
    The cost of dismantling or removing a treatment or
    storage unit constructed as part of an on-site
    remedy should be factored into the determination of
    the cost-effectiveness of that remedy.  If that
    alternative is selected, funds for the dismantling of
    the unit should be included in the remedy obligation.
    Should there be plans for a treatment or storage
    unit constructed as part of an on-site remedy to
    accept commercial wastes after the CERCLA waste has
    been processed, it is EPA policy that a RCRA permit
    be obtained before the unit is constructed.  The
    cost and scheduling implications of obtaining a
    permit should also be factored into the analysis of
    cost-effectiveness.
Proposed Implementation Process;

     1.   Initial evaluation of NPL sites to determine if the
         RI/FSs of several sites should be combined.  Show
         combined RI/FSs on SCAP.

     2.   Feasibility Study recommends that a combined site action
         would be cost-effective.  Further, the Feasibility Study
         shows that the selected remedy meets the necessary criteria
         of this policy.  (The NPL need not be amended.)

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                                                    9347.0-1
                          -4-
3.  A joint public comment period is held to .seek comment
    from all interested parties on the proposed consolidation
    of sites and a responsiveness summary is written.

4.  Regional Administrator or Assistant Administrator signs
    Record of Decision for non-contiguous site action.

5.  A new Record of Decision, public comment period and
    responsiveness summary would be required if additional
    sites are added to the response plan after the first
    Record of Decision.

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                     NATIONAL  PRIORITIES  LIST
                  CHECKLIST OF DATA  REQUIREMENTS
Site Name
Notes:
DATA ELEMENT/PATHWAY
Available
    Not
Appropriate
Ground and Surface Water and Air
T^Waste physical state
2.  Persistence
3.  Toxicity
4.  Quantity

Ground Water
T~.  Monitoring data OR
    la.  Depth of aquifer
    Ib.  Net precipitation
    Ic.  Permeability
2.  Ground water use
3.  Distance to nearest down-
    gradient well
4.  Population served by wells
    within 3 miles

Surface Water
T.Monitoring data OR
    la.  Slope and terrain
    Ib.  Rainfall intensity
    Ic.  Distance to surface water
    Id.  Flood potential
2.  Surface water use
3.  Critical habitats
4.  Population served
Air
    Monitoring data
    Waste reactivity
    Incompatibility
    Toxicity
    Distance to nearest population
    Population within 1 mile
    Critical environments
    Land use

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      A Guide to Delisting of RCRA
Wastes for Superfund Remedial Responses

-------
    EPA
                             United States
                             Environmental Protection
                             Agency
                             Office of
                             Solid Waste and
                             Emergency Response
Superfund Publication:
9347.3-09FS
September 1990
A  Guide to  Delisting
of  RCRA  Wastes  for
Superfund  Remedial   Responses
Office of Emergency and Remedial Response
Hazardous Site Control Division      OS-220
                                                          Quick Reference Fact Sheet
        On-site CERCLA remedial response actions must comply with the substantive requirements of the Resource Conservation
 and Recovery Act (RCRA) when they are determined to be applicable or relevant and appropriate requirements (ARARs). RCRA
 requirements are applicable for CERCLA responses involving the treatment, storage, or disposal of RCRA wastes (or when disposal
 of the waste being addressed under CERCLA occurred after November 19, 1980). Delisting a RCRA waste (and thus removing
 it from regulation under RCRA Subtitle C) is one option available to site managers for addressing wastes or treatment residuals
 containing hazardous constituents in low concentrations (i.e., at or near health-based levels). This guide discusses the circumstances
 under which delisting wastes may  be appropriate and the procedures for delisting a RCRA hazardous waste  as part of a
 Superfund remedial response. (For additional information, please see Petitions to Delist Hazardous Wastes:  A Guidance Manual
 (Office of Solid Waste and Emergency Response, April 1985 EPA/530-SW-85-003).)
 BACKGROUND

    There are two types of RCRA waste that are subject to
 RCRA Subtitle C hazardous waste requirements: listed and
 characteristic. Listed wastes are regulated under Subtitle C
 until they have been delisted,  at which time they may be
 disposed of in  a  Subtitle D facility.  Delisting requires  a
 demonstration that a listed RCRA hazardous waste, or  a
 mixture containing listed hazardous wastes, no longer meets
 any of the criteria under which the waste was listed and no
 other  factors are known  that  would make  the  waste
 hazardous.  Delisting applies only to listed wastes, mixtures
 containing listed wastes, or residuals derived from treatment
 of a listed waste. Characteristic hazardous wastes do not have
 to be delisted in order  to be eligible for management  in a
 Subtitle D  facility,  but may  simply  be  rendered "non-
 characteristic" (i.e., treated  to no longer exhibit any of the
 characteristics outlined in 40 CFR Part 261, Subpart C), or
 meet the  Land  Disposal  Restriction  (LDR)  treatment
 standards.

    For on-site CERCLA remedial response actions, delisting
 of RCRA  wastes is accomplished by incorporating  the
 substantive requirements of 40  CFR 260.20 and .22 into the
 remedial process. For off-site CERCLA response actions, the
 administrative requirements of 40 CFR 260.20 and .22 must
 also be met.

 WHEN TO CONSIDER DELISTING

    Site managers may want  to consider  delisting when
 planning  CERCLA  response  actions  that will  address
 materials contaminated  with  RCRA listed waste in  low
 concentrations (including treatment residuals that, despite
 treatment, remain listed wastes under the derived-from  rule
                            [40 CFR 261.3(c)(2)]).  If site managers believe that these
                            materials pose no significant threat to ground water and that
                            management in a Subtitle D solid waste disposal facility (to
                            prevent direct contact) would be fully protective of  human
                            health and the environment, delisting as a potential option
                            should be evaluated.  Unless listed wastes can be delisted,
                            management of these materials must be in accordance with
                            Subtitle  C (i.e., clean closure or landfill closure with an
                            impermeable cap, or a hybrid closure where RCRA  closure
                            requirements are relevant and appropriate).

                            BASIS FOR DELISTING

                               Under RCRA, once sufficient data are collected  on the
                            waste, and  its  potential fate  and transport,  models (see
                            Highlight 1) are run to evaluate the dilution and attenuation
                            of constituents at a hypothetical receptor well. The calculated
                            concentrations of constituents  at the  hypothetical receptor
                            well  must at least  meet the health-based levels used for
                            delisting decisions for the waste to be successfully delisted.
                            (Table 1, inserted in this fact sheet, contains the maximum
                            allowed concentrations (MACs) for specific constituents based
                            on the current health-based levels (10"* risk) developed by the
                            Office of Solid Waste for delisting decisions.)

                               During site characterization and the development of the
                            baseline risk assessment, if analyses indicate that minimal risks
                            are posed by identified RCRA listed wastes, (i.e., they are
                            already at or near delisting levels) site managers  should
                            consider management options involving the delisting of wastes.
                            Delisting evaluations  should be  made early in  the RI/FS
                            process, thus allowing the requirements and disposal options
                            associated with delisting to be factored into the detailed
                            analysis of remedial alternatives. For delistings at CERCLA
                            sites, OERR recommends that site managers use the same

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        Highlight 1 - MODELS USED BY THE OFFICE OF SOLID WASTE TO JUSTIFY DELISTING PETITIONS

            The recently promulgated tcodcity characteristic leaching procedure (TCLP) is used to measure the leaching
    potential of selected inorganic and organic constituents (55 FR 11798, March 29, 1990).  For some organics, the Organic
    Leachate Model (OLM) (see 51 FR 41084-100, November 13, 1986) may be used to estimate the leaching potential of
    these constituents. The OLM is based on data from leaching tests performed on wastes with organics.  Data generated
    from the TCLP (and possibly the OLM) are used in the appropriate models to determine whether the waste will pose a
    threat to human health and the environment.

            EPA uses an appropriate model, such as the VHS model, to estimate the ability of an aquifer to dilute the
    leachate toxicants and predict toxicant levels at a receptor well.  (See 50 FR 48846, November 27, 1985 for a complete
    description of the VHS model.) The predicted levels of toxicants from the VHS model are then compared to health-
    based levels used in delisting decision-making (e.g., MCLs, RfDs) for those compounds, in an effort  to evaluate hazard
    potential.
analytical tests and models as the Office of Solid Waste to
analyze and predict the potential fate and transport of waste
constituents and to substantiate a delisting request.

    In certain cases, pathways other than ground water may
present a greater concern, or site conditions are such that use
of other or additional models (e.g., air models, 51 FR 41084,
November 13,  1986) may be appropriate.   Because the
delisting determination is waste-specific, site managers should
document why a particular model is being used.

    If results from treatability studies conducted during an
RI/FS indicate that treatment will attain delisting levels, these
data  may  serve  as  the basis for  approving a  delisting
demonstration.  When site-specific treatability study data are
not available, data from the application of technologies to
similar wastes may be used to assess the likely effectiveness of
the treatment processes and to demonstrate that a particular
waste  would be rendered  non-hazardous  and  justify a
delisting.  If there are  technically sound reasons to believe
that delisting levels can be attained, site managers still may
seek to delist the wastes, but should specify another option
for disposal of  the  material (i.e.,  Subtitle C disposal) if
delistable levels are not attained.

    As outlined in the NCP (55 FR 8756, March 8, 1990),
only the substantive requirements of delisting must be met for
on-site CERCLA responses.  The delisting may be granted
when the Regional Administrator signs the ROD. For off-site
actions, the Office of Solid Waste and Emergency Response
(Contact:   Assistance Branch  (OS-343) 382-4206) makes
delisting decisions. The formal RCRA administrative process
for delisting would not  apply,  however, to non-contiguous
CERCLA facilities meeting the criteria to be treated as one
site and to which the on-site  permit exemption extends (see
NCP, 55 FR 8690-1,  March 8,  1990).

DEMONSTRATING  COMPLIANCE

    Verification  testing may be  required following treatment
of the wastes to confirm that  delisting levels are attained.
Verification testing  may  require:  collection of  samples
generated  from treatment  systems;  analysis of samples for
total  and  TCLP leachate  concentrations of  inorganic and
organic constituents, and any other RCRA characteristics (as
appropriate)1; and analysis of any other information relevant
to the delisting that may not have been anticipated at the
time that the original decision document was signed. The
specific demonstrations required may vary based on process-
or waste-specific conditions  at  the site.   [NOTE:  An
appropriate testing frequency of treatment residuals will need
to be established during the design phase for a  period long
enough to represent the variability of the delisted material.]
All data from verification testing must be collected using the
appropriate QA/QC procedures (such as those contained in
the site's Quality Assurance Project Plan (QAPP) prepared
during the RI/FS scoping or remedial design process).

   Waste to be delisted must be managed as hazardous until
it has been  analyzed in accordance with the sampling and
analysis requirements established at the time of delisting, and
it  has been  determined  that  delisting levels  have  been
attained.  Therefore, temporary storage of waste residuals will
be necessary in some cases until sampling  results are received.
RCRA storage requirements that are ARAR must  be met
(or a waiver justified) during this period for remedial actions.

DOCUMENTING A WASTE DELISTING

   Although  compliance with  the  RCRA administrative
delisting requirements are not required as part of an on-site
CERCLA remedial response, compliance  with the substantive
requirements  of delisting  must  be  documented  in  the
appropriate CERCLA documents. Since off-site CERCLA
responses  must  comply  with   both   substantive  and
administrative requirements, site managers must follow the
formal delisting petition process  (40 CFR 260.20 and .22)
when hazardous wastes or waste residuals are to be delisted
for management  off-site. This includes Office of  Solid Waste
review, or State review for those States that have adopted the
delisting program at least equivalent to the Federal program,
publication of a proposed notice in the Federal Register, an
opportunity for public comment, and publication of the final
rule in the Federal Register. The Office of Solid Waste's goal
 'Note that for any responses expected to take place prior to the
 TCLP effective date, the EP Toxiciry test may apply.

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                                                                   Table 1: Maximum Allowed Concentration*
         Maximum allowed concentrations (MACs) are back-calculated from the VHS model, using a minimum waste volume of 6000 cubic yards. (Lower waste volumes will result in higher MACs.  rf
the waste contains 
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                                                     Table 1: Maximum Allowed Concentrations (cent)
Chemical
  MAC for      MAC for
Solid* (ppm) Liquids (mg/L)  Chemical
  MAC for      MAC for
Solids (ppm) Liquids (mg/L)  Chemical
  MAC for      MAC for
Solid* (ppm) Liquid* (mg/L)
1.2-Oiphenylhydrazine 6.976E-04 2.524E-04
Bteulfoton 8,591 E-01 $.309E-03
Endosulfan 1.983E+01 1.262E-02
Endrin 1,004E+00 1.262E-03
Epichlorohydrin
(1-Chloro-2.3-«poxypropane) Treat. Tech Treat. Tech
Etrtyt»«nz»n» 4,9846+03 4,4ieE+00
Ethyl other 2.598E+04 1.262E+02
EthytonedjbromWe 6.078E-04 3,t§5E-04
Ethylene oxide 8.309E-04 B.309E-04
Fluontnthsne 2,9716+04 1.262E+00
Fluorene 1.048E+01 1.262E-02
FormfcAeid 3.5236+04 4.416E+02
Qlycidytaldehyde 7.510E-02 6.309E-02
Hoptachtor 3.345E+00 8.524E-03
Heptachlor epoxlde (alpha.
beta, gamma isomers) 8.346E-01 1.262E-03
H0xachlorob«nzene 2.619E-01 1.262E-04
Hexachlorobutadiene 5.139E+00 3.155E-03
Hexachlorocyclopentadiene 8,2836+03 1.262E+00
Hexachloroethane 2.956E+00 1.893E-02
Hexachloropriene 3.131 E+03 fl,309E-02
Hydrazlne 6.309E-OS 6.309E-05
Hy<(«!h»nfc»oW(Hydrog»nqy*n|(i») 4.416E+00 4,4165+00
Hydrogen sulfide 6.309E-01 6.309E-01
Indeno(1,2.3,cd)pyren9 2.970E*01 1.262E-03
Isobutanol 8.244E+03 6.309E+01
l»ophoron» 1.345E+04 4.416E+01
Lead Under consideration by EPA
Undane 1.513E-01 1.262E-03
Maleic anhydride Soluble 2.524E+01
Malelc hydrazlde 9.263E+04 1.262E+02
Mercury 1.262E-02 1.262E-02
Methaerylonttriie 1 ,4795-01 2.524E-02
Methanol 5 552E+03 1.262E+02


M«thomyl 2,743g+02 5.97BE+00
Methoxychlor 2.633E+04 6.309E-01
Meth>t chloride 8,2556+03 2.524E+W
Methyl chlorocarbonate 1 .543E+04 2.524E+02
Methyl ethyl ketone 3,83$6*02 1,282E*01
Methyl isobutyl ketone 1.641E+03 1.262E+01
Methyl methacryJata 1.3016+05 1.893E+01
Methyl parathion 1.351E+01 5.678E-02
Naphthalene 5,7386+05 e,309E+01
Nickel Under consideration by EPA
Nitric oxide ' 2,5245+01 2.524E+01
Nitrobenzene 6.5S7E+00 1.262E-01
Nitrogen dlpxide 2.524E+02 2.524E+02
N-Nitroso-di-n-butylamine 2.088E-05 3.785E-05
N-Nltro*o<)ieth«notamine S.309E-05 «,309E-05
N-Nitrosodiethylamine 1.262E-08 1.262E-06
N-Nltro8odlm0thyiam!n* 5,enE-oe 4.416E-08
N-Nltro8odiphenylamine 1.166E+01 4.416E-02
\
N-Nltroso-n-propylamlne 3.155E'-05 3.155E-05
Nitrosopyrrolidine 1.262E-04 1.262E-04
Pentachlorobenzene 2.284E+03 1.893E-01
Pentachloronitrobenzeno 7.216E-01 6.309E-04
Pentachlorophenol 2.9J7E+03 1.282E+00
Phenanthrene 1.398E+01 1.262E-02
Phenol 2,051 E+04 1.262E+02
m-Phenylenediamine 1.108E+01 1.262E+00
Phenyl mercury acetate 4.289E-01 1.893E-02
Phosphine 5.803E+00 6.309E-02
Phthalto unhydrlde S.788E+05 4.4166+02
Polychlorinated biphenyls 1.223E+01 3.155E-03
Pronamlde S.459E+04 1.893E+01
Pyrene 4.076E+05 6.309E+00
Pyridlne 3.394E+00 2.524E-01
Selenious acid 6.309E-01 6.309E-01
Selenium 6.309E-02 6.309E-02







Selenouroa No Solubility 1.282E+00
silver *'*B*H*l a,i»E-«than9 5.832E-03 1.262E-03
Tetrachloroethylene 3.430 E+00 3.155E-02
2,3,4,6-TetrachioropJienol 2.992E+03 9.309E+00
Tetraethyl dithiopyrophosphat 6.425E+01 1.262E-01
tetrasthyHead 1,«2E-03 2.824E-OS
Thallium 1.893E-02 1.893E-02
Thiouroa 1J2826-04 t<262E-O4
Thiram 1.918E+03 1.282E+00
Toluene 1.173E+04 1.2526+01
Toluene-2-6-dlamlne 2.888E+03 3.786E+01
Toxaptiene 7.909E+O1 3.1S5E-02
2,4,5-TP (Silvex) 9.90SE+00 6 309E-02
Trtbromom0than*(8ro(noTorm) 9,MZGtQ2 4.418E+OQ
1,2.4-Trichlorobenzene 1.217E+04 4.416E+00
I.l.f-Trlchloroemano 2.229E+02 1.2B2E*00
1 , 1 ,2-Trichloroethane 2.31 SE-02 3.78SE-O3
Trichloroethylene 1,14«E+00 3.1S5E-02
Trichlorofluoromethane 8.474E+04 6.309E+01
2,4,5-Trlchlorophenol 2,101 E+04 2.524E+01
2,4,6-Trichlorophenol 3.536E-01 1.262E-02
2.4,5-Trleh!orophenoxyac0tfc 1,69$E+03 2,524E+00
1.2,3-Trichloropropane 1.399E+02 1.262E+00
1,1 .J-TrlchtOfO-t^^-tri-
fluoroathana 1.002E+09 «,309E+03
sym-Trinltrobenzene 5.572E-01 1.262E-02
2.4,6-Trfrjitroto)uen9 3.993E-01 6.309E-03
Vanadium pentoxide 4.416E+00 4.416E+00
Vinyl Chloride 1.822E-01 1.262E-02
Warfarin 3.159E+01 6.309E-02
Xylene (mixed) 2.177E+05 6.309E+01

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Is to propose and finalize dclistings within 24 months from the
time a complete petition is received.

RI/FS Report

 The substantive  requirements  for delisting  a  RCRA
hazardous waste should be documented in the RI/FS Report.
In the Detailed Analysis of Alternatives chapter of the FS
Report, a general discussion of why delisting  is warranted
should be included in the description of each alternative for
which a  delisting  is contemplated.  Where  the remedial
alternatives involving treatment are expected to result in a
residual  that  may be delisted, this discussion  should also
specify the concentrations of each waste constituent expected
to remain after treatment.   The  specific  information that
should be included in an RI/FS report for on-site and off-site
CERCLA remedial actions is presented in Highlight 2. (The
more specific and detailed information, such as relevant waste
analysis data from sampling, should be placed in an appendix
to  the report.)   Under  the "Compliance with  ARARs"
Criterion, as part  of the Description of Alternatives section,
site managers should identify those wastes or waste residuals
to be delisted,  and managed under Subtitle  D instead of
Subtitle C.
Proposed Plan

   The intent to delist  wastes should  be stated in  the
Description of Alternatives section of the Proposed  Plan.
Because the Proposed Plan solicits public comment on all of
the remedial alternatives, and not just the preferred option,
the intent to delist wastes on-site  or to obtain a delisting
petition  for  off-site  wastes should be  identified for  all
alternatives for which such an  approach is planned.   This
opportunity for public comment on the Proposed Plan fulfills
the requirements for public notice and comment on delisting
petitions required under 40 CFR  260.20(d).  Highlight 3
provides sample language for the Proposed Plan.

Record of Decision

   Sample language  for  the  Description of Alternatives
section of the  ROD   is shown  in Highlight  4.    The
documentation provided in  the ROD  should be a  brief
synopsis of  the  information in the FS  report.   In  the
Description of Alternatives section, as part of the discussion
of major ARARs for each remedial alternative, site managers
should include a statement (as was done in the FS report)
that explains why delisting is justified. A statement should
                         Highlight 2 - DOCUMENTATION FOR RI/FS REPORT FOR DELISTING
                                         (Detailed Analysis of Alternatives Chapter)
    ON-SITE:
    •        Description of Remedial Alternatives

    •        Detailed Description of the Treatment Process being used to render the waste non-hazardous (e.g., operating parameters)

    •        Waste and Treatment Residual Characterization
                      - EPA Hazardous Waste Number(s)
                      - Complete Description of the Waste (e.g., matrix, percent solids, pH)
                      - Waste Management Information (e.g., current and proposed management, techniques, flow diagrams)
                      - Description of Constituents present (identification, concentrations)

    •        Relevant Sampling and Testing Information1 (e.g., TCLP test results)

    •        Data on Representative Samples for the Listed Constituents and a Discussion of Why the Waste is Non-Hazardous. Include
             a statement that the samples are representative of constituent concentrations  in the waste, and discuss modelling results.

    •        CERCLA on-site response actions need not meet administrative procedures of other environmental statutes.  The RI/FS and
             ROD process are substitutes for the administrative procedures in the delisting process. The substantive requirements remain
             the same (55 FR 8756 -57, March 8, 1990).

    OFF-SITE (in addition to elements required for off-site petition):

             For off-site delisting petitions, the documentation requirements listed for on-site actions should be extracted from the RI/FS
    report and combined with the following information found below. The information should be incorporated with the on-site information
    into a 40 CFR 260.20 petition and a copy of the petition should be referenced and attached to the RI/FS report.

                         Petitioner's name and address
                         Identification of on-site contact  person, if different from above
                         Description and location of site
                         Statement of the petitioner's interest in the proposed action
    1 Appropriate sampling information may be contained in the Superfund Quality Assurance Project Plan (QAPP) and, therefore, not
    specifically repeated in the RI/FS Report. Where appropriate, however, information on relevant sampling procedures should be
    referenced in this section when discussing the basis for delisting.

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          Highlights:  SAMPLE LANGUAGE
             FOR THE PROPOSED PLAN

 Description of Alternatives section:

          Under this alternative, the [waste/treatment
 residuals] will be delisted (Le., shown to be non-
 hazardous wastes) and thus will no longer be subject to
 RCRA Subtitle C hazardous waste regulations. The
 [wastes/treatment residuals] will be managed in
 accordance with the RCRA Subtitle D (solid waste)
 requirements (and/or state solid waste disposal
 requirements).

 Evaluation of Alternatives section, under "Compliance
 With ARAKs":

          The [wastes/treatment residuals] will be
 delisted in [Enter number] of [Enter total number of
 alternatives].  The RCRA Subtitle D (solid waste)
 closure requirements, rather than Subtitle C
 requirements, will be ARARs for these [wastes/treatment
 residuals].

 Community's Role in Selection Process:

          The Proposed Plan seeks comment on the
 delisting of the [waste/treatment residuals and models}
 for each alternative for which delisting is proposed.
also be included explaining that the waste was delisted under
CERCLA, therefore RCRA's substantive requirements have
been met.

   In  the  Statutory  Determinations  section,  under  the
"Compliance with  ARARs"  finding,  site managers should
indicate that the wastes will be delisted.

   Unless treatability studies conducted in the RI/FS indicate
that  a  technology's performance is reasonably certain,  the
ROD should address how  to handle wastes that do  not
achieve delistable levels. If waste residuals cannot be delisted,
a  contingency  plan will  be  implemented.   Where  the
contingency implemented differs significantly from that
          Highlight*  SAMPLE LANGUAGE
          FOR THE RECORD OF DECISION

  Description of Alternatives section:

          Because existing and available data and the
  results of modeling demonstrate that the [waste/treatment
  residuals] will not be hazardous (Le., do not contain
  hazardous constituents in levels that are hazardous and
  do not exhibit a hazardous characteristic), they wUl be
  delisted. Therefore, the RCRA Subtitle C requirements
  are not ARARs.   These [wastes/treatment residuals],
  however, will be managed as solid wastes under RCRA
  Subtitle D [and  State of  {name} solid waste disposal
  requirements under {citation}].  This delisting is justified
  on the basis of [results from treatability testing/other
  basis].  This delisting satisfies the substantive
  requirements of 40 CFR  260.20 and .22.

          If testing of the waste during the remedial
  action shows that the necessary levels are not being
  attained for delisting these wastes, they will be managed
  as Subtitle C hazardous wastes and the applicable or
  relevant and appropriate  requirements under Subtitle C
  will be met.
discussed in the ROD, the ROD must be amended or an
Explanation of Significant Differences (BSD) issued (NCP
§300.435(c)(2)). Where the contingency implemented does
not significantly differ from that discussed in the ROD, it may
be advisable to issue  an  ESD or fact sheet to inform the
public of these actions.

   The  Comparative Analysis  section of the ROD should
discuss  contingent  remedies in a level  of detail  that  is
adequate to explain the contingency (so that the public has an
ample opportunity to review the contingency). The Selected
Remedy section should establish the parameters of both the
selected and contingent remedies and provide the criteria by
which the contingency remedy would  be implemented. The
Statutory Determinations  section should  demonstrate how
either   remedy  would   fulfill   CERCLA  section   121
requirements.
  NOTICE:  The policies set out in this memorandum are intended solely as guidance. 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 the guidance provided in this memorandum, or to act at variance with the guidance, based on an analysis of specific
  site circumstances-  The Agency also reserves the right to change this guidance any time without public notice.

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CERCLA Compliance with Other Laws Manual,
 RCRA ARARs: Focus on Closure Requirements

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                      United States
                      Environmental Protection
                      Agency
Office of
Solid Waste and
Emergency Response
     Directive 9234.2-04FS
     October 1989
                      CERCLA Compliance with Other Laws  Manual

                      RCRA  ARARs:
                      Focus  on  Closure  Requirements
    The Superfund Amendments and Reauthorization Act of 1986 (SARA) adopts and expands a provision in the
 1985  National Contingency Plan (NCP) that remedial  actions must at least attain applicable  or relevant and
 appropriate requirements (ARARs).  Section 121(d) of  CERCLA, as amended by SARA, requires attainment of
 Federal ARARs and of State ARARs in State environmental or facility siting laws when the State requirements
 are promulgated, more stringent than Federal laws, and  identified by the State in a timely manner.

    To implement the ARARs provision, EPA has developed guidance, CERCLA Compliance with Other Laws
 Manual: Parts I and II (OSWER Directives 9234.1-01 and 9234.1-02, respectively). EPA is preparing a series of
 short Fact Sheets (OSWER Directive 9234.2 series) that  summarize the guidance documents.  This particular Fact
 Sheet addresses compliance with Subtitle C of the Resource Conservation and  Recovery Act (RCRA), as amended
 by the Hazardous and Solid Waste Amendments of 1984 (HSWA), with a  focus on the RCRA Subtitle C closure
 requirements. This Fact Sheet is based on policies in the proposed December 21, 1988 revisions to the NCP.  The
 final NCP may adopt policies different from those covered here and, when promulgated, should be considered the
 authoritative source.
                    I.  AN OVERVIEW OF RCRA  SUBTITLE C ARARS
    The provisions of Subtitle C of RCRA mandate
 "cradle-to-grave" management of hazardous waste, and
 regulate three types of hazardous waste handlers: (1)
 generators;  (2)  transporters;  and  (3)  owners  and
 operators of treatment, storage, or disposal facilities
 (TSDFs). Although there are RCRA requirements for
 generators and transporters of hazardous waste, the
 most extensive RCRA requirements are those for the
 design, operation, and closure of hazardous waste
 TSDFs (40 CFR Part 264).  Highlight 1 shows the
 types of hazardous waste management units regulated
 under Subtitle C.

    RCRA  Subtitle. C requirements for TSDFs  will
 frequently be ARARs for  CERCLA actions, because
 RCRA regulates the  same or similar wastes as those
 found at  many CERCLA sites, covers many of the
 same activities, and addresses releases  and threatened
 releases similar  to those  found  at CERCLA sites.
 When RCRA requirements  are ARARs, only  the
substantive requirements of RCRA  must be met  if a
CERCLA action Ls to be conducted on site. On-site
actions do  not  require  RCRA  permits,  nor  is
compliance with administrative requirements necessary
      for on-site actions. CERCLA actions to be conducted
      off site, however, must comply with both substantive
      and administrative RCRA requirements (see Highlight
      2 on the next page).
            Highlight I: KEY SECTIONS OF RCRA
       SUBTITLED
       S.lld Wuu
 SUBTITLE C
Htnntov WuU
                                        SUBTITLE I
                P»rt 264 - Treatment. Storage,
                and Disposal Facility Requirements

                  SubpArt F - Ground-water Prelection
                  Subp«rl G - Ckxaire And Po«-Clo»urr
                  SubpArt I - CootAiocn
                  Subp«rt J - Tub
                  SubpArt K - SurfAC* Impoundments
                  Subpart L - Wute Pile.
                  SubpArt M - LAOd Treatment
                  Subp«n N - Landfill!
                  SubpArt O - [oODcralon
                  SubpAit X - Mi*ceiUncouj Uoju

                Part 268 - Land Disposal Restrictions
                                                                               Printed on Recycled Paper

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          Highlight 2:  SUBSTANTIVE AND
        ADMINISTRATIVE REQUIREMENTS

     Substantive Requirements are those
     requirements that pertain directly to actions
     or conditions  in the environment.  Examples
     include performance standards for
     incinerators (40 CFR 264.343), treatment
     standards for land disposal of restricted waste
     (40 CFR 268), and concentration limits,  such
     as MCLs.

     Administrative Requirements are those
     mechanisms that facilitate the implementation
     of the substantive requirements of a statute
     or regulation.   Examples  include the
     requirements for preparing a contingency
     plan, submitting a petition to delist a listed
     hazardous  waste, record keeping,  and
     consultations.
A.  WHEN RCRA IS APPLICABLE

    RCRA Subtitle C requirements for the treatment,
storage, and disposal of hazardous waste are applicable
for a Superfund  remedial action  if  the  following
conditions are met:

  • The waste is a RCRA hazardous waste, and either:

  • The waste was  initially treated, stored, or disposed
    of after the effective  date of the particular RCRA
    requirement, or

  • The activity  at  the  CERCLA  site  constitutes
    treatment,  storage,  or  disposal,  as defined  by
    RCRA.

1.  When  a CERCLA Waste is  a RCRA Hazardous
    Waste

    In order for RCRA requirements to be applicable,
a Superfund waste must  be  determined to be a listed
or characteristic hazardous  waste  under RCRA (see
Highlights  3a and  3b for  the  definition  of RCRA
hazardous  waste).  A waste  that is hazardous because
it once exhibited a characteristic (or media containing
a characteristic waste) will not be subject  to Subtitle
C regulation if it no  longer exhibits the characteristic.
A listed waste may be delisted if it can  be shown that
the specific waste  is  not  hazardous   based  on  the
standards in 40 CFR 264.22.  If such a waste will  be
shipped  off  site,  it must  be  delisted through  a
rulemaking process.   However,  to delist  a RCRA
hazardous  waste   that  will  remain  on  site  at  a
Superfund  site, only'the substantive requirements for
delisting must be  met (see  "ARARs Q's  and A's,"
OSWER Directive 9234.2-01FS, May 1989).
      Highlight 3a: CHARACTERISTIC RCRA
               HAZARDOUS WASTES
             (Subpart C of 40 CFR Part 261)

      •   Ignitability - i e.. a waste with a flash point
         lower than 140 F;

      •   Corrosivity - i.e., a waste with a pH less
         than or equal to 2.0 or greater than or equal
         to 12.5, or capable of corroding steel at a
         rate of more than 0.25 inches per year;

      •   Reactivity - i.e., a waste that is explosive,
         reacts violently with water, or generates toxic
         gases when exposed to water or liquids that
         are moderately acidic or alkaline; and

      •   Extraction Procedure (EP) Toxicity* - i e.,
         a waste for which the EP test extract
         contains a concentration of a specified
         contaminant above its regulatory threshold.
  *A final rulemakmj; is underway thai will replace the EP test
  with the Toxicity Characteristic Leaching Procedure (TCLP).
  Promulgation is expected in 1990.
            Highlight 3b: LISTED RCRA
               HAZARDOUS WASTES
            (Subpan D of 40 CFR Part 261)

    •   F Waste Codes (Part 261.31) - wastes from
        non-specific sources (e.g.,  F001 - F005 spent
        solvents),

    •   K Waste Codes (Part 261.32)-wastes from
        specific sources (e.g., K001 wastewater
        treatment  sludge from wood preserving
        processes).

    •   P Waste Codes (Part 261.33(e)) - acutely
        hazardous commercial chemical products;* and

    •   U Waste Codes (Part 26134(f))-toxic
        commercial chemical products."

 In addition, any solid waste derived from  the treatment,
 storage, or disposal of a listed waste, and any mixture of solid
 waste  and  listed  waste is  a RCRA  hazardous waste
 (regardless of the concentration of hazardous constituents or
 the percentage of listed wastes in  such a  mixture)
 'NOTE  The word "product" refers lo a commercially pure or
 technical grade o{ the  chemical  A material does nol qualify as a
 producl simply because it is a proce-ss wasie
                                                       -2-

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     Any  environmental media (i.e., soil  or ground
 water) contaminated with a  listed  waste is  not a
 hazardous* waste, but must be managed as such until
 it no longer contains the listed waste, generally when
 constituents from the listed waste are at health-based
 levels.  Delisting is not required.

     To determine whether a waste is a listed waste
 under RCRA, it is often necessary to know the source
 of  that  waste.    For  any  Superfund site,  if  an
 affirmative determination cannot be made  that  the
 contamination is a RCRA hazardous waste, RCRA
 requirements will not be applicable.  A determination
 of whether a waste  is a characteristic waste can be
 based  on  testing the  waste.    Alternatively, best
 professional judgment (based on knowledge of  the
 waste and its constituents) can be used to determine
 whether testing is  necessary.

 2.   When the Date of Initial  Disposal Triggers
     RCRA Applicability

     A RCRA requirement will be applicable  if the
 hazardous waste was treated, stored, or disposed of
 after the  effective date of the particular requirement.
 The RCRA Subtitle C regulations that established the
 hazardous waste  management system first  became
 effective on November 19, 1980.   RCRA regulations
 will not be applicable to  wastes disposed of before
 that date, unless the CERCLA action itself constitutes
 treatment, storage, or disposal  (see below). Additional
 standards  have been issued  since  1980;  therefore,
 applicable requirements may vary somewhat, depending
 on the specific date on which  the waste was disposed.

 3.  When Superfund Activities Trigger RCRA
    Applicability

    RCRA requirements for  hazardous wastes will
 also be applicable if  the  response  activity at  the
 Superfund  site  constitutes  treatment,  storage,  or
 disposal,  as  defined  under  RCRA   Disposal  of
 hazardous waste, in particular, triggers a number of
 significant    requirements,   including    closure
 requirements (see Part II of this Fact  Sheet) and land
 disposal restrictions, which require treatment of wastes
 prior to land disposal.  (See  Guides on Superfund
 Compliance with Land Disposal Restrictions, OSWER
 Directives 9347.3-01FS through  9237.3-06FS,  for  a
 detailed description of these requirements.)

    Because   remedial  actions  frequently  involve
grading, excavating, dredging, or other measures that
disturb contaminated  material, activities at Superfund
sites  may constitute  disposal,  or  placement,  of
hazardous waste (see  Highlight 4).
              Highlight 4: ACTIONS
           CONSTITUTING DISPOSAL
         DISPOSAL OCCURS WHEN:
                      OMwwM AOC/Unft
  Wastes from different AOCs arc consolidated into
                   one unit.
                  TREATMENT
                             RESIDUALS
                         OVttnnt AOC/Unft
   Wastes are removed from the AOC, treated in a
separate unit (even if physically within the same AOC),
   and redeposited into the same or Smother AOC.
   DISPOSAL DOES NOT OCCUR WHEN:
                 CONSOLIDATE
               f*	 AOC/U«*—»1
               I              l
Wastes are consolidated within the same AOC or unit.
    Tra* tn-IUtu
                    TTTvrrm
                    AOC/Uftt
            Wastes are treated in situ.
                            CAP
                  AOCAJnn

        Wastes are capped or left in place.
                                                    -3-

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    EPA has determined that disposal occurs when
wastes are placed in a land-based  unit.   However,
movement within a unit does not constitute disposal
or  placement,  and,  at CERCLA sites, an area  of
contamination  (AOC)  can  be  considered  to  be
comparable to a unit.  Therefore, movement within an
AOC does not constitute placement.

B.  WHEN RCRA IS RELEVANT AND
    APPROPRIATE

    RCRA requirements that are not applicable may,
nonetheless, be relevant  and  appropriate, based on
site-specific circumstances. For example, if the source
or prior use of a  CERCLA waste is not identifiable,
but the waste  is similar in composition to a known,
listed RCRA waste, the RCRA  requirements may be
potentially  relevant and  appropriate,  depending on
other circumstances at the site.

    However,  the similarity  of the  waste  at the
CERCLA site  to  RCRA waste  is not the only, nor
necessarily the  most  important,  consideration  in the
determination.  An in-depth, constituent-by-constituent
analysis is generally neither necessary nor useful, since
most RCRA requirements are the same for a  given
activity or unit, regardless of the specific composition
of the hazardous waste.

    The   determination   of   relevance    and
appropriateness of RCRA requirements is based on
the  circumstances  of the  release,  including the
hazardous properties of the waste, its composition and
matrix, the characteristics of the site, the nature of the
release or threatened release  from the  site, and the
nature and purpose of the requirement itself.  Some
requirements  may be relevant  and  appropriate for
certain areas of the site, but not for other areas.  In
addition, some RCRA requirements may be relevant
and appropriate at a site, while others are not, even
for  the  same  waste.    For  example,  minimum
technology requirements  may be considered relevant
and appropriate for one area receiving waste because
of the high potential for migration of contaminants in
hazardous levels to ground water, but not for another
area that  contains relatively immobile waste.  Land
disposal restrictions  may be determined not  to  be
relevant and appropriate  for either area because the
treatment  technology required  by the requirement is
not appropriate, given the matrix of the waste.  Only
those requirements that are determined  to be both
relevant and appropriate  must  be attained.

C.  STATE AUTHORIZATION UNDER RCRA

    A  State  may  be authorized  to administer  the
RCRA  hazardous waste  program  in  lieu of  the
Federal  program   provided   that  the  State  has
equivalent  authority.    Authorization  is  granted
separately for  the  basic RCRA Subtitle C  program,
which includes  permitting and closure of TSDFs; for
regulations promulgated pursuant to HSWA, such as
land disposal  restrictions; and  for  other programs,
such as delisting of hazardous wastes.  If a site is
located in  a State with an  authorized RCRA program,
the State's  promulgated RCRA requirements will
replace  the  equivalent  Federal  requirements  as
potential ARARs.

    An  authorized State program may  also be more
stringent than  the  Federal program.  For example, a
State  may have  more  stringent test  methods  for
characteristic wastes,  or may list  more wastes  as
hazardous than the Federal program does. Therefore,
it  is important to determine whether laws  in  an
authorized State go beyond the Federal regulations.
                                                   -4-

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                    H.   FOCUS  ON  RCRA CLOSURE REQUIREMENTS
    For each  type of unit regulated under RCRA,
Subtitle C regulations contain closure standards  that
must be met when a unit is closed.  For treatment
and  storage  units,  the standards  require  that  all
hazardous waste  and hazardous waste  residues be
removed when the unit is closed.  In addition  to the
option of closure by removal, called "clean closure,"
units such as landfills,  surface impoundments,  and
waste piles may be closed as disposal or landfill units
with waste in  place, referred to as "landfill closure."
Frequently, the closure  requirements for such land-
based units will be either applicable or relevant  and
appropriate at Superfund sites.

A.  WHEN CLOSURE REQUIREMENTS ARE
    APPLICABLE

    The basic prerequisites for applicability of closure
requirements are: (1) the waste must be a hazardous
waste; and (2) the unit (or AOC) must have received
waste after the RCRA requirements became effective,
either because  of the  original  date of disposal or
because  the  CERCLA  action  constitutes disposal
(described in Pan I of this Fact Sheet).  When RCRA
closure  requirements are applicable, the regulations
allow only two types of closure:  (1) clean closure;
and (2)  disposal or landfill closure.

    Highlight 5 provides a  description  of each type
of closure.  Clean closure standards assume there will
be  unrestricted  use of the  site  and  require  no
maintenance after the closure has been completed, and
are often referred to as  the "eatable solid, drinkable
leachate" standards.   In  contrast, disposal or landfill
closure  standards require post-closure care  and
maintenance of the unit for at least 30 years after
closure.   EPA  has  prepared  several   guidance  on
closure  and  final covers  (e.g., the  draft RCRA
Guidance Manual for Subpart G, Closure and Post-
Closure  Standards,  EPA-530-SW-78-010,  and  the
technical  guidance  document,  Final   Covers   on
Hazardous    Waste    Landfills   and  Surface
Impoundments,  EPA  530-SW-89-047,   July   1989).
These guidance documents are not ARARs, but are to
be considered  (TBC) for CERCLA actions and  may
assist in complying with these regulations. Of course,
the performance standards in  the regulation may be
attained in ways other than that described in guidance,
depending on the specific circumstances of the site.
   Highlight 5: REQUIREMENTS FOR CLEAN
           AND LANDFILL CLOSURE

  Clean Closure:  All waste residues and
  contaminated containment system components
  (e.g., liners), contaminated subsoils, and
  structures and equipment contaminated with
  waste and leachate must be removed and
  managed as  hazardous waste or
  decontaminated before the site management is
  completed, "edible soil, drinkable leachate" [see
  40 CFR 264.111, 264.228(a)].

  Landfill Closure:  The unit  must be capped
  with a final cover designed and constructed to:

    -  provide  long-term minimization of
      migration of liquids;
    -  function with minimum  maintenance;
    -  promote drainage and minimize erosion;

    -  accommodate settling and  subsidence;  and
    -  have a permeability less than or equal to
      any bottom liner system or natural
      subsoils present.
  Post-closure  care includes maintenance of the
  final cover; operation  of a leachate and
  removal system; and maintenance of a ground-
  water monitoring  system  [see 40  CFR  264.117,
  264.228 (b)].
B.  WHEN CLOSURE REQUIREMENTS ARE
    RELEVANT AND.APPROPRIATE

    If  they  are  not  applicable,  RCRA closure
requirements  may  be  relevant  and  appropriate.
However, there is more flexibility in designing closures
because a  hybrid closure is possible.  Hybrid closure
occurs  when only certain requirements in the closure
standards are relevant and appropriate. Depending on
the site circumstances and the remedy selected, either
clean closure, landfill closure,  or a combination of
both may  be used.
                                                  -5-

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    The proposed revisions to the NCP discuss the
 concept of hybrid closure (53  FR 51446). The NCP
 illustrated the  following  possible  hybrid   closure
 approaches:  (1) hybrid-clean closure; and (2) hybrid-
 landfill closure, which  combines elements of clean
 closure and closure with waste in place, as described
 in Highlight  6.
        Highlight 6:  HYBRID-CLEAN AND
          HYBRID-LANDFILL CLOSURES

   Hybrid-Clean Closure:  Used when leachate
   will not impact the ground water (even though
   residual contamination and leachate are above
   health-based levels) and contamination does
   not pose a direct contact  threat.

     -  No covers or long-term management are
       required;

     -  Fate and  transport modeling and model
       verification are used  to ensure that
       ground water is usable; and

     -  A property deed notice is  used to indicate
       the presence of hazardous substances.

   Hybrid-Landfill Closure:   Used when residual
   contamination  poses a direct contact threat,
   but  does not pose a ground-water threat.

     -  Covers, which  may be permeable,  are used
       to address the direct  contact threat;

     -  Limited long-term management includes
       site and cover maintenance and minimal
       ground-water monitoring;

     -  Institutional controls (e.g., land-use
       restrictions or deed notices) are used as
       necessary.
The two hybrid closure alternatives are constructs of
applicable laws but are not themselves promulgated
at this  time.  These  alternatives are possible when
RCRA requirements are relevant and appropriate, but
are  not available  when  closure  requirements  are
applicable.
AFTERWORD:  MINIMUM TECHNOLOGY
REQUIREMENTS

    While every unit to which RCRA applies must be
closed in accordance with RCRA closure requirements
(as discussed  in  Part  II  of this  Fact  Sheet),  the
minimum technology requirements (MTR) apply only
to a  subset of these  regulated units.   The  MIR
require  installation  of  double liners and a leachate
collection system, in addition to compliance with other
design standards.

    The MTR apply only  to new units,  replacement
units.0 and  lateral expansions of existing landfills (40
CFR 254.301(c)) and surface impoundments (40 CFR
254.221(c)).6-c  Therefore, an existing landfill or AOC
would not  be  subject to MTR,  even if disposal of
hazardous waste occurred as pan  of the  CERCLA
action.  The unit or AOC would, however, be subject
to RCRA closure standards for  landfills.  Although
not applicable, MTR may be relevant and appropriate
depending on the circumstances of the release and the
site.
  0 A replacement unit is further defined as an existing unit that meets the following criteria:  (1) the unit is taken
out of service; (2) all or substantially all of the waste is removed; and (3) the unit is reused, which does not include
removal and replacement of waste into the same unit.

  b In addition, as of November 19,  1988, existing surface  impoundments that  actively receive  wastes  must be
retrofitted to comply with MTR  (with some limited exceptions).

  c LDR requires that certain  restricted wastes, such as  soft  hammer wastes, be disposed of  in a unit that meets
MTR, and therefore can trigger MTR  indirectly (see Superfund LDR Guide #3, OSWER Directive 9347.3-03FS).
                                                   -6-

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Consideration of RCRA Requirements
in Performing CERCLA Responses at
        Mining Waste Sites
                                  Oil

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I SL *,         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

^ v\l/^ "                     WASHINGTON, D.C. 20460
                                                             9234.0-4


                                 AUG  191986


                                                             C F F IC L O F
                                                    SOLID WASTE. A\D t.MEHGENCV RtSPC
     MEMORANDUM
      SUBJECT:  Consideration of RCRA Requirements  in Performing
               CERCLA Responses at Mining Waste  Sites

      FROM:     Henry L. Longest II, Director
               Office of  Emergency and  Remedial

      TO:       Waste Management Division Directors
               Regions  I  - X


          As you know, on July 3, 1986, the Agency issued a final
      determination on whether mining waste would be regulated under
      Subtitle C of RCRA (copy attached).  This determination was
      based on a report to Congress mandated by RCRA Section 3001(b)
      (3)(C) and subsequent public comments.  The determination is
      that mining wastes will  not be regulated under Subtitle C at
      this time.  This conclusion is based on the belief that several
      aspects of EPA's current hazardous waste management standards
      if applied universally to mining sites, are likely to be environ-
      mentally unnecessary, technically  Infeasible, or economically
      impract i cal .

          However, given  the concern about actual  and potential mining
      waste problems, the  Agency intends to develop a program for
      regulating mining waste under Subtitle D.   The current Subtitle D
      program establishes  criteria principally aimed at municipal  and
      industrial solid waste which focus on standards related to surface
      water discharges, groundwater contamination and endangered species.
      Modifications to this program will focus on identifying environ-
      mental problems, setting priorities for applying controls at
      sites with a high potential for risk, and employing a risk manage-
      ment approach in the development of appropriate standards to
      protect human health and the environment, as  necessary, including
      closure options, tailored controls, pretreatment of wastes prior
      to disposal, and cleanup options.  Revisions  to Subtitle D criteria
      are expected to be proposed in mid-1988; however, EPA has reserved
      the option to reexamine a modified Subtitle C in the future if
      this approach is unworkable or insufficient.

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                               -2-


     In the Interim, Super-fund will  continue to address mining
waste problems through the RI/FS and ROD/EDO processes taking
Into account current Subtitle D requirements as well  as options
for addressing risks not addressed by Subtitle D requirements.
To address such remaining risks, you may wish to consider the
technical  requirements of Subtitle C regulations during the
Initial review of remedial alternatives.  If these  requirements
seem to be technically 1nfeas1ble, they may be rejected early in
the screening process.  If Subtitle C approaches appear to satisfy
the criteria found 1n Section 300.68 (g),  Initial  Screening of
Alternatives, of the NCR, they should be considered in the detailed
analysis.   Other remedial alternatives should be evaluated in a
risk management analysis.  In some cases,  a combination of Subtitle
C and risk analysis approaches may be used to address a discrete
phase of response.  All  data  generated during remedial planning,
Including  the basis for  selection of specific remedies, should
be forwarded to my office as  it becomes available  so  that the
information can be transmitted to OSW to assist that  office 1n
Its development of standards  for mining wastes.


Attachment


 cc:  Marcia Ml 11 lams, OSW
      Gene Lucero, OWPE
      Dan Berry,  OGC

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Environmental Protection Agency

40 CFR Part 261

Regulatory Determination For Wastes From the Extraction and Beneficiation of
Ores and Minerals

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL 3033-7]

Regulatory Determination for Wastes from the Extraction and Beneficiation of
Ores and Minerals

AGENCY: Environmental Protection Agency.

ACTION: Regulatory determination.

SUMMARY: This is the regulatory determination  for solid waste from the
extraction and beneficialion of ores and minerals required by section
3001(b)(3)(C) of the Resource Conservation and Recovery Act (RCRA). This
section of RCRA requires the Administrator to determine whether to promulgate
regulations under Subtitle C of the Act for these wastes or determine that
such regulations are unwarranted; the Administrator must make this
determination no later than six months after completing a Report to Congress
on these wastes and after public hearings and the opportunity to comment on
the report. After completing these activities and reviewing the information
available, the Agency has determined  that regulation of the wastes studied in
the Report to Congress, i.e., wastes from the extraction and beneficiation of
ores and minerals, under Subtitle C is not warranted at this time.

ADDRESS: The address for the Headquarters docket is: United States
Environmental Protection Agency, EPA RCRA docket (Sub-basement), 401 M
street, SW., Washington DC, 20460, (202) 475-9327. For further details on what
the EPA RCRA docket contains, see  Section VII.  of this preamble, titled "EPA
RCRA Docket" under "SUPPLEMENTARY INFORMATION.".

FOR FURTHER INFORMATION CONTACT:  RCRA/Superfund Hotline at
(800) 424-9346 or (202) 382-3000 or Dan Derkics  at (202) 382-2791.

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SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Summary of Decision

II. Background

III. Legal Authority

IV. Report to  Congress

V. Application of Subtitle C to Mining Waste

VI. Application of Subtitle D to Mining Waste

VII. EPA RCRA Docket

Supplementary Information

I. Summary

Based on the Report to Congress, comments on the report, and other available
information, EPA has determined that regulation of mining waste under Subtitle
C of the Resource Conservation and Recovery Act (RCRA) is not warranted at
this time.

This conclusion is based on EPA's belief that several aspects of EPA's current
hazardous waste management standards are likely to be environmentally
unnecessary, technically infeasible, or economically impractical when applied
to mining waste. While under existing law EPA would have some flexiblity to
modify its standards for hazardous waste management as applied to these
wastes, there are substantial questions about whether the flexibility inherent
in the statute coupled with the Agency's current data on these wastes provide
a sufficient basis for EPA to develop a mining waste program  under Subtitle C
that addresses the risks presented by mining waste while remaining sensitive
to the unique  practical demands of mining operations. Given these
uncertainties, EPA does not intend to impose Subtitle C controls on mining
waste at this time.

The Agency, however, is concerned about certain actual and potential mining
waste problems, and therefore plans to develop a program for mining waste
under Subtitle D of RCRA. The long-term effectiveness of this program depends
on available State resources for designing and implementing a program tailored
to the needs of each State, and on EPA's ability  to oversee and enforce the
program. As noted below in section VI, EPA will be working with the States to
determine the specific nature of their current mining waste activities and

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their future plans to administer such programs. The Administration will work
with Congress to develop expanded Subtitle D authority (i.e., Federal
oversight and enforcement) to support an effective State-implemented program
for mining waste.  EPA has already made preliminary contacts with Congress and
intends to hold detailed discussions on the specifics of the Subtitle D
program in the coming year. In the interim, EPA will use RCRA section 7003 and
CERCLA sections 104 and 106 to protect against substantial threats and
imminent hazards. If EPA is unable to develop an effective mining waste
program under Subtitle D, the Agency may find it necessary to use Subtitle C
authority in the future.

II. Background

Section 8002(f) of the Resource Conservation and Recovery Act of 1976 directed
EPA to conduct:

A detailed and comprehensive study on the adverse effects of solid wastes from
active and abandoned surface and underground mines on the environment,
including, but not limited to, the effects of such wastes on humans, water,
air, health,  welfare,  and natural resources, and on the adequacy of means and
measures currently employed by the mining industry, Government agencies, and
others to dispose of and utilize such solid wastes to prevent or substantially
mitigate such adverse effects.

The study was to include an  analysis of:

1. The Sources and  volume of discarded material generated per year from
mining;

2. Present disposal practices;

3. Potential danger to human health and the environment from surface runoff of
leachate and air pollution by dust;

4. Alternatives to  current disposal methods;

5. The cost of those alternatives in terms of the impact on mine  product
costs; and

6. Potential for use  of discarded material as a secondary source of the mine
product.

On May 19, 1980, EPA promulgated regulations under Subtitle C of RCRA which
covered, among other things, "solid waste from the extraction, beneficiation,
and processing of ores  and minerals," i.e., mining waste. On October 21,
1980, just before these Subtitle C regulations became effective, Congress
enacted the Solid Waste Disposal Act of 1980 (Pub. L. 96-482) which added

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section 3001(b)(3)(A)(ii) to RCRA This section prohibits EPA from regulating
"solid waste from the extraction, beneficiation, and processing of ores and
minerals, including phosphate rock and overburden from the mining of uranium
ore" as hazardous waste under Subtitle C of RCRA until at least six months
after the Agency completes and submits to Congress the studies required by
section 8002(f), and by section 8002(p) (which was also added to RCRA by the
1980 amendments).

Section 8002(p) required EPA to perform a comprehensive study on the disposal
and utilization of the waste excluded from regulation, i.e., solid waste from
the extraction, beneficiation, and processing of ores and minerals, including
phosphate rock and overburden from the mining of uranium ore. This new study,
to be conducted in conjunction with the section 8002(f) study, mandated an
analysis of:

1. The source and volumes of such materials generated per year;

2. Present disposal and utilization practices;

3. Potential danger, if any, to human health and the environment from the
disposal and reuse  of such materials;

4. Documented cases in which danger to human health or the environment has
been proved;

5. Alternatives to current disposal methods;

6. The costs of such alternatives;

7. The impact of these alternatives on the use of phosphate rock and uranium
ore, and  other natural resources; and

8. The current and potential utilization of such materials.

The  1980 amendments also added section 3001(b)(3)(C), which requires the
Administrator  to make a "regulatory determination" regarding the waste
excluded from Subtitle C  regulation. Specifically within six months after
submitting the Report to  Congress, and after holding public hearings and
taking public comment on the report, the Administrator must "determine  to
promulgate regulations" under Subtitle C of RCRA for mining waste or
"determine that such regulations are unwarranted."

EPA was required to complete the study and submit it to Congress by October
16, 1983. In 1984, the Concerned Citizens of Adams town and the Environmental
Defense Fund sued EPA for failing to complete the section 8002 studies and the
regulatory determination by the statutory deadlines. The District Court  for
the District of Columbia ordered EPA to complete the studies by December 31,
1985, and to publish the regulatory determination by June 30, 1986.

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EPA submitted its Report to Congress on mining waste on December 31, 1985. A
notice announcing the availabilityof the report, and the dates and locations
of public hearings, was published January 8, 1986 (51 FR 777). EPA held public
hearings on the report in Tucson, Arizona on March 6, 1986; Washington, DC on
March 11, 1986; and Denver, Colorado on March  13, 1986. The comment period
on the report closed March 31, 1986. This notice constitutes the Agency's
regulatory determination for the wastes covered by the Report to Congress,
i.e., wastes from the extraction and beneficiation of ores and minerals.

On October 2, 1986, EPA proposed to narrow the scope of the mining waste
exclusion in RCRA section 3001(b)(3)(A)(ii), as it applies to processing
wastes (50 FR 40292). Under this proposal, wastes that would no longer be
covered by the mining waste exclusion would be subject to Subtitle C if they
are hazardous. These "reinterpreted" wastes where not studied in the mining waste
Report to Congress and therefore, are not covered by this regulatory
determination.

III. Legal Authority

EPA has concluded that its decision whether to  regulate mining waste under
Subtitle C should be based not just on whether mining waste is hazardous (as
currently defined by EPA regulations) but also should consider the other
factors that section 8002 required EPA to study. The basis of this conclusion
is the language of section 3001(b)(3)(A) which states that the  regulatory
determination must be "based on information developed or accumulated pursuant
to [the section 8002 studies], public hearings, and comment. . . ." Clearly,
Congress envisioned that the determination would be based on all the factors
enumerated in sections 8002 (f) and (p). Congress already knew that some
mining waste was hazardous, since the RCRA Subtitle C regulations  which were
promulgated on May 19, 1980 were to apply to hazardous (both characteristic
and listed) mining waste.  Congress apparently believed, however, that EPA
should obtain and consider additional information, not just data on which
types of mining waste are hazardous, before imposing Subtitle  C regulation on
these wastes. Accordingly, this  regulatory determination is based on
consideration of the factors listed in sections 8002  (f) and (p).

In reviewing the factors to be studied which are listed in sections 8002 (f)
and (p), and the legislative history of these and other mining waste
provisions, EPA has concluded that Congress believed that certain factors are
particularly important to consider in making the Subtitle C regulatory
determination. First, Congress instructed EPA to study the  potential  dangers
to human health and the environment from mining waste, indicating  that  the
decision to regulate under Subtitle C must be based on a finding of such a
danger. Second, section 8002(p) required EPA to review the actions  of other
Federal and State agencies which deal with mining waste "with a view toward
avoiding duplication of effort." From this provision, EPA concludes that
Congress believed Subtitle C regulation might not be necessary if other

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Federal or State programs control any risks associated with mining waste.
Third, Congress expected EPA to analyze fully the disposal practices of the
mining industry which, when read in conjunction with the legislative history
of this provision, indicates concern about the feasibility of Subtitle C
controls for mining waste. Finally, Congress instructed EPA to look  at the
costs of various alternative methods for mining waste management, as well as
the impact of those alternatives on the use of natural resources. Therefore,
EPA must consider both the cost and impact of any Subtitle C regulations in
deciding whether they are warranted. Clearly,  Congress believed that it was
important to maintain a viable mining industry. Therefore, any Subtitle C
regulations which would cause widespread closures in the industry would be
unwarranted.

IV. Report to Congress

EPA's Report to Congress provides information  on sources and volumes of waste,
disposal and utilization practices, potential danger to human health and the
environment from mining practices, and evidence of damages. EPA received more
than 60 written comments on the report and heard testimony at the  hearings
from more than 30 individuals. A complete summary of all the comments
presented at the hearings and submitted in writing is available (ICF, 1986a
see VII No. 6);  (see "EPA RCRA Docket"). This section  summarizes  the
information contained in the Report to Congress, public comments received on
the report, and  EPA's response to the comments.

A. Summary of Report to  Congress

1. Structure and Location  of Mines

EPA focused on segments producing and concentrating metallic ores, phosphate
rock, and  asbestos, totalling fewer than 500 active sites during 1985.  These
sites, which are predominantly located in sparsely populated areas west of the
Mississippi River, vary widely in terms of size, product value, and volumes of
material handled. Several segments are concentrated primarily in one state:
The iron segment is mainly concentrated in Minnesota, lead in Missouri, copper
in  Arizona, asbestos in California, and phosphate in Florida.

2. Waste Quantities

The Report to Congress estimated that 1.3 and 2 billion metric tons per year
of nonfuel mining waste were generated in 1982 and 1980, respectively. The
accumulated waste volume since  1910 from nonfuel mining is estimated to be
approximately 50 billion metric tons. The large volume of  annual and
accumulated nonfuel mining waste results from the high waste-to-product ratios
associated with  mining. The fact that most of the material handled in mining
is waste and not marketable  product distinguishes mining from many other
process industries where waste materials make up a relatively small portion of
the materials used  to produce a final product. Consequently, some of the

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larger mining operations handle more material and generate more waste than
many entire industries.

3. Waste Management Practices

The report indicated that site selection for mines, as well as associated
beneficiation and waste disposal facilities, is the single most important
factor affecting environmental quality in the mining industry. Most mine waste
is disposed of in piles, and most tailings in impoundments. Mine water is
often recycled through the mill and used for other purposes onsite. Off-site
utilization of mine waste and mill tailings is limited (i.e., 2 to 4 percent
of all mining waste generated). Some waste management measures (e.g., source
separation, treatment of acids or cyanides, and waste stabilization) now used
at some facilities within a narrow  segment of the mining industry could  be
more widely used. Other measures applied to  hazardous waste in nonmining
industries may not be appropriate. For example, soil cover from surrounding
terrain may create additional reclamation problems in arid regions.

4. Potential Hazard Characteristics

Of the 1.3 billion metric tons of nonfuel mining waste generated by extraction
and beneficiation in 1985, about 61 million metric tons (5 percent) exhibit
the characteristics of corrosivity and/or EP (Extraction Procedure) toxicity,
as defined by 40 CFR 261.22 and 261.24, respectively. Another 23 million
metric tons (2 percent)  are contaminated with cyanide (greater than 10 mg/1).
Further, there are 182 million  metric tons (14 percent) of copper leach dump
material and 95 million metric  tons (7 percent) of copper mill tailings with
the potential for release of acidic and toxic liquid, i.e., acid formation.
There are 443 million metric tons (34 percent) of waste from the phosphate and
uranium segments with radioactivity content greater than 5 picocuries per
gram; a total of 93 million metric  tons (7 percent) has radioactivity content
greater than 20 picocuries per  gram. Finally, asbestos mines generated about 5
million metric tons (less than 1 percent) of waste with a chrysotile content
greater than 5 percent.

5. Evidence of Damages

To determine what damage might be caused by mining waste, EPA conducted
ground-water monitoring and examined documented damage cases.  During
short-term monitoring studies at eight sites, EPA detected seepage from
tailings impoundments, a copper leach dump,  and a uranium mine water pond. The

EP  toxic  metals of concern, however, did not  appear to have migrated during
the 6- to 9-month monitoring period. Other ground-water monitoring studies,
however, detected sulfates, cyanides, and other contaminants from mine runoff,
tailings pond seepage, and leaching operations. The actual human health and
environmental threat posed by any of these releases is largely dependent upon
site-specific factors, including a site's proximity to  human populations or

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sensitive ecosystems. Sites well removed from population centers, drinking
water supplies, and surface waters are not likely to pose high risks.

Incidents of damage  (e.g., contamination of drinking water aquifers,
degradation of aquatic ecosystems, fish kills, and related degradation of
environmental quality) have also been documented in the phosphate, gold,
silver, copper, lead, and  uranium segments. As of September 1985, there were
39 extraction, beneficiation, and processing sites included or proposed for
inclusion on the National Priorities List under CERCLA (Superfund),  including
five gold/siver, three  copper, three asbestos, and two lead/zinc mines. The
asbestos Superfund sites differ from other sites in that these wastes pose a
hazard via airborne exposure.

6. Potential Costs of Regulation

The Report to Congress presented for five metal mining segments, total
annualized costs ranging from $7 million per year (for a scenario that
emphasizes primarily basic maintenance and monitoring for wastes that are
hazardous under the current RCRA criteria) to over $800 million per year (for
an unlikely scenario that approximates a full RCRA Subtitle C regulatory
approach, emphasizing cap and liner containment for all wastes considered
hazardous under the current criteria, plus cyanide and acid formation wastes).
About 60 percent of the total projected annualized cost at active facilities
can be attributed to the management of waste accumulated from past production.
Those segments with no hazardous waste (e.g., iron) would incur no costs.
Within a segment, incremental costs would vary greatly from facility to
facility, depending on current requirements of state laws, ore grade,
geography, past waste accumulation, percentage of waste which is hazardous,
and other factors.

B. Comments Received on the Report to Congress and EPA's Response

1. Potential Hazard Characteristics

EPA received several comments addressing  the magnitude of the wastes generated
by the mining industry, and the amount that is hazardous. Many agreed with the
report's conclusion that there are substantial volumes of waste, but
questioned EPA's estimates of the amount of "hazardous" waste.

Many commenters noted that they believed the EP (Extraction Procedure) test is
inappropriate for mining waste because the municipal landfill mismangement
scenario on which the test is based is not relevant to mining waste. They
further noted that the corrosivity characteristic is not appropriate because
it does not address the buffering capacity of the environment at certain
mining sites. Finally, several commenters noted that leaching operations are
processes, rather than wastes and are thus outside the purview of RCRA.

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The Agency agrees that dump and heap leach piles are not wastes; rather they
are raw materials used in the production process. Similarly, the leach liquor
that is captured and processed to recover metal values is a product, and not a
waste. Only the leach liquor which escapes from the production process and
abandoned heap and dump leach piles are wastes. Since the report identified 50
million metric tons of heap and dump leach materials as RCRA corrosive wastes,
EPA has accordingly reduced its estimate of mining waste volumes which meet
the current definition of hazardous waste. The Agency currently estimates that
out of the 61 million metric tons per year of mining waste identified as
hazardous in  the Report to Congress, only 11 million metric tons of mining
waste generated annually are hazardous because they exhibit EP toxicity, and
an unknown amount of escaped leach liquor is corrosive. EPA has also concluded
that potential problems from substantial quantities of mining waste which have
other properties, i.e., radioactivity, asbestos, cyanide, or acid generation
potential will not be identified by the current RCRA characteristics. EPA
therefore, believes that entirely different criteria may more appropriately
identify the mining wastes most likely to be of concern.

2. Evidence of Damages

EPA received many comments on whether the Report to Congress demonstrates
that mining waste pose a threat to human health and the environment. Many
commenters alleged that the report does not demonstrate conclusively that such
wastes do pose a threat. They claimed that EPA did  not adequately consider the
site-specific nature of mining waste management problems. They pointed out
that the environmental settings of sites  vary widely, as do management
practices, and that all  these factors influence risk. Also, several commenters
noted that the report fails to distinguish between the threat  from past
practices and the threat, if any, from  current practices. Based on these
observations,  many of these commenters urged EPA to postpone regulations
pending additional analysis. However, other commenters noted that they
believed there is sufficient evidence that mining waste poses a threat to
human health and the environment and asked for immediate regulatory action,
noting that the time for study was over.

The Agency agrees that adverse effects to the public and the environment from
the disposal of mining waste is not likely at sites well-removed from
population centers, drinking water supplies, surface water, or other
receptors. However, for other sites, analyses of contaminant plumes released
by leaching operations and releases of other contaminants (e.g., acids,
metals, dusts, radioactivity) demonstrate adverse effects. Moreover, the
Agency recognizes, as evidenced by the mining waste sites on the National
Priorities List, the potential for problems from mining sites.  It is apparent
that some of  the problems at Superfund or other abandoned sites are
attributable to waste disposal practices not currently  used by the mining
industry. However, it is not clear from the analysis of damage cases and
Superfund sites, whether current waste  management  practices can prevent damage
from seepage or sudden releases. EPA is concerned that a large exposure

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potential exists at some sites generating mining waste, particularly the sites
that are close to population centers or in locations conducive to high
exposure and risk to human health and the environment.

3. Potential Costs of Regulation

EPA received a large number of comments pertaining to the cost of complying
with regulations for mining waste, and the effects these compliance costs
would have on the mining industry. Many commenters claimed that regulating the
mining industry would impose costs much greater than those EPA estimated in
its Report to Congress. They also noted  that the mining industry was
depressed, and that for many mines, increased compliance costs would be
greater than the profits, leading to forced closures.

Many commenters also pointed out that  there are current Federal and State
regulations which already apply to mining, which impose costs. They noted that
EPA needs to review the existing  Federal and State regulatory structure before
adding to it, thereby imposing additional costs. Others did not agree,
commenting that existing Federal  and State regulations are inadequate, and
that additional EPA regulation is necessary.

EPA is sensitive to the potential costs to the industry associated with mining
waste regulations under Subtitle C. The Agency is also cognizant that many EPA
programs already affect the mining industry such as the Clean Water Act which,
among other things, control surface water discharge via national Pollutant
Discharge Elimination system (NPDES)  permits. Other Federal agencies,
including the Bureau of Land Management, the Forest Service, and the National
Park Service, also exercise oversight and impose regulatory controls (CRA,
1986b see VII no. 3). The Federal waste disposal requirements  generally call
for practices that will prevent unnecessary and undue degradation. Federal
reclamation guidelines are somewhat more detailed, requiring approval of a
land management operating plan and an environmental assessment. Also these
agencies generally require compliance with all applicable state and local laws
and ordinances.

A number of states have their own statutes and implementing regulations for
mining waste. Some states have comprehensive and well-integrated programs;
other States have newer, partially developed programs (CRA, 1986c see VII no.
4). Although there is great variation in programs, many states have siting and
permitting requirements, and require financial assurance, ground-water and
surface water protection, and closure standards. EPA agrees that  any
requirements necessary to protect human health and the environment should
consider the existing Federal and  State mining waste programs with a view
toward avoiding duplication of effort.
                                      10

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C. Mining Waste Conclusions

Based on the available information and public comments, the Agency draws the
following conclusions about mining wastes. (BAI, 1986 see VII No.  1)

Source and Volume

- The waste volume generated by mining and beneficiation is considerably
larger than the volume of waste generated by other industries currently
subject to hazardous waste controls. The mining industry alone generates over
one billion metric tons of waste per year compared to 260 million metric tons
generated annually  by all other hazardous waste industries. The average mining
waste facility manages about three million metric tons of waste annually while
the typical facility subject to Subtitle C controls manages about 50 thousand
metric tons of waste per year.

- In general, mining waste disposal facilities are considerably larger than
industrial hazardous waste disposal facilities; most of the largest industrial
hazardous waste land disposal facilities are (tens of acres) in size, while
typical mining waste disposal facilities are (hundreds  of acres) in size.
Agency studies indicate that mining waste tailings impoundments average about
500 acres; the largest is over 5000 acres. Mining waste  piles average 126
acres; the largest exceeds 500 acres. Hazardous waste impoundments, however,
average only about  6 acres and hazardous waste landfills average only about 10
acres. Consequently, EPA believes that many traditional hazardous waste
controls may be technically infeasible or economically impractical to
implement at mining waste sites because of their size.

Waste Management Practices

- EPA estimates indicate that most hazardous waste generators (about 70
percent) ship all of their waste  off-site, however, no mines ship all of their
waste off-site. In addition, nearly all mining waste is land disposed, while
less than half of all  industrial hazardous waste is land disposed.

Evidence of Damage

- In general, environmental conditions  and exposure  potential associated with
mining waste are different than those associated with industrial hazardous
waste streams. Agency studies suggest that mining waste streams generally have
lower exposure and risk potential for several  reasons.

- First, mining waste management facilities are generally in drier climates
than hazardous waste management facilities, thereby reducing the leaching
potential. Over 80 percent of the mining sites are located west of the
Mississippi River, which generally has drier climates,  whereas industrial
hazardous waste landfills are more evenly distributed nationally. In addition,
the Agency estimates that more than sixty percent of all mines have annual net

                                      11

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recharge between 0-2 inches, and only ten percent have net recharge greater
than ten inches. However, about 80 percent of the hazardous waste land
disposal facilities have net recharge greater than five inches, and over
one-third exceed 15 inches.

- Second, EPA studies indicate that hazardous waste land disposal facilities
are closer to ground water than mining waste sites. Over 70 percent of
hazardous waste sites have a depth to ground water of 30 feet or less, while
about 70 percent of mining sites have ground water depths greater than 30
feet.

- Third, Subtitle C facilities tend to be located in more densely populated
areas. EPA estimates that mining waste sites have average populations of less
than 200 within one  mile of the site, while hazardous waste sites average over
2,000 people at the same distance. Within five miles  of the mining waste
sites, the average population is almost 3,000, while hazardous waste sites
average nearly  60,000 people.

- Fourth, Agency studies suggest that, compared to mining waste sites,
hazardous waste sites tend to be located closer to drinking water receptors
and serve larger populations. Almost 70 percent of the hazardous waste sites
are located within five miles of a drinking water receptor serving an average
population of over 18,000 and as many as 400,000 people. Almost half as many
mining sites are located within this same distance, and they serve
considerably smaller populations (averaging  3,000 but ranging as high as
20,000.)

- Although the Agency believes that the human exposure and risk potential
appears to be lower  for mining waste sites than for industrial hazardous waste
sites, many mines are located in sensitive environmental settings. EPA
estimates that about 50  percent of the mines are located in areas that have
resident populations of threatened or endangered species or species of other
special concern, (often the case for industrial sites). In addition, mining
sites are typically located in  relatively remote and otherwise undisturbed
natural environments.

Cost and Economic Impacts

- EPA believes that  many traditional waste management controls designed
principally for industrial hazardous waste management facilities may be
economically impractical to implement at mining sites and could impose
substantial costs to the industry resulting in  potential mine closures. Full
Subtitle C controls for mining sites could impose as much as $850 million per
year in compliance costs. Such  costs could be greater than profits resulting
in mine closures.
                                      12

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- Many Federal and State agencies already have regulatory programs for
managing mining waste. New hazardous waste controls for mining waste could be
difficult to integrate with existing Federal and State programs.

V. Application of Subtitle C to Mining Waste

EPA believes  that it needs maximum flexibility to develop an appropriate
program for mining waste which addresses the technical  feasibility, the
environmental necessity, and  the economic practicality of mining waste
controls. The program should consist of a tailored risk-based approach which
addresses the  diversity and unique characteristics of mining waste problems.

The current Subtitle C program is designed principally for controlling
problems created by industrial wastes. Based on information  available, the
Agency believes that many controls  required under the current Subtitle C
program, if applied universally to mining sites, would be  either unnecessary
to protect human health and  the environment, technically infeasible, or
economically impractical to implement. For instance, certain  Subtitle C
requirements such as single and double liner system requirements which provide
liquid management, and closure and capping standards to minimize infiltration,
may be technically infeasible or economically impractical to implement for
mining wastes  because of the quantity and nature of waste involved. In
addition, for many mining sites located in remote areas,  such controls may be
necessary to protect human health and the environment. For example, liquid
releases to the ground water  can be minimized and controlled using cutoff
walls or interceptor wells (i.e., controlled release) as well as through liner
systems, and alternate capping requirements designed to address site-specific
concerns such as direct human contact or wind erosion,  are likely to be
feasible and practical, thus providing better long-term protection of human
health and the environment.

Section 3004(x) of RCRA does provide flexibility for regulating mining waste.
This section gives EPA the authority to modify certain Subtitle C requirements
for mining waste which were  imposed by the Hazardous  and  Solid Waste
Amendments of 1984  (HSWA) which relate to liquids in landfills, prohibitions
on land disposal, minimum technological requirements, continuing releases at
permitted facilities, and retrofitting  interim status surface impoundments
with liners. In modifying these requirements, EPA may consider site-specific
characteristics as well  as the practical difficulties associated with
implementing  such requirements. In addition, EPA has general authority under
RCRA section 3004(a) to modify remaining  Subtitle C requirements, such as
administrative standards, financial requirements, and closure  and capping
requirements,  if a waste poses different risks or the existing standards are
technically infeasible.  However, in modifying such requirements, section
3004(a) does not provide EPA the same degree of flexibility to consider the
economic impact of regulation that  is found  in section 3004(x).
                                      13

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As described earlier in this notice, EPA believes that the decision whether to
regulate mining waste under Subtitle C must consider the factors listed in
RCRA sections 8002 (f) and (p), including the risks associated with mining
waste, the cost of such regulation, and the effect regulation might have on
the use of natural resources. EPA has concluded that in order to meet that
objective, it would want to develop a program that has maximum flexibility to
develop an effective control strategy for individual facilities based on
site-specific conditions. The existing Subtitle C regulatory program would
probably have to  be changed substantially for mining waste to provide that
type of flexibility.

Given these general conclusions about what would be needed to  make the
Subtitle C system appropriate  for mining waste, there are substantial
uncertainties about whether that program is the right mechanism to address
mining waste. First, it is unclear whether the legal authorities under which
EPA would be acting (i.e., sections 3004(a)  and 3004(x)) give EPA sufficient
flexibility to craft a program for "hazardous" mining waste given the
statutory and regulatory approach established for other hazardous wastes.
Second, and closely related, there  are substantial questions about whether the
Agency's current  data on mining waste management provide a basis for
substantial  modifications to the existing Subtitle C regulatory program. With
the mining waste study and the supplementary information collection  efforts
associated with today's notice, EPA has greatly expanded its understanding of
mining waste management practices. At the same time, additional data
collection and analysis would probably be necessary to support specific
modifications of multiple provisions in the existing hazardous waste
regulations before those regulations would provide the type of flexibility  we
currently believe  might be  necessary. These uncertainties have led us  to the
conclusion  that Subtitle C does not provide an appropriate template for  a
mining waste management program.

VI. Application of Subtitle D  to Mining Waste

Solid waste that is not hazardous waste is subject to regulation under
Subtitle D. Therefore, mining waste, which is included in the RCRA definition
of solid waste, is currently covered by Subtitle D. EPA believes that it can
design and implement a program specific  to mining waste under Subtitle D that
addresses the risks associated  with such waste. The current Subtitle D program
establishes criteria which are,  for the most part, environmental performance
standards that are used  by States to identify unacceptable solid waste
disposal practices or facilities.  (See 40 CFR Part 257.) These criteria
include, among other things, standards related to surface water discharges,
ground-water contamination, and endangered species. Because the program's
criteria are aimed principally at municipal and industrial solid waste, EPA
believes they do not now fully address mining waste concerns. In addition,
many of these criteria, such as control of disease vectors and bird hazards,
are not appropriate for  mining waste.
                                      14

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The Agency is currently revising these criteria for facilities that may
receive hazardous household waste and small quantity generator hazardous
waste; these revisions will not apply to mining waste which are generally not
codisposed with such wastes. However, the Agency intends to further augment
the Subtitle D program by developing appropriate standards and taking other
actions appropriate for mining waste problems. EPA will focus on identifying
environmental problems and setting priorities for applying controls at mining
sites with such potential problems as high acid-generation potential,
radioactivity, asbestos and cyanide wastes. EPA will also develop a
risk-management framework to develop appropriate standards as necessary to
protect human health and the environment. EPA will consider requirements such
as: (1) A range of closure options to accommodate variable problems such as
infiltration to ground water and exposure from fugitive dust; (2) options to
define tailored controls, including those established by the Clean Water Act,
to address problems from runoff to surface water; (3) options for liquid
management controls such as pretreatment of wastes prior to disposal,
controlled release,  or liner systems; (4) ground-water monitoring options that
accommodate site-specific variability; and (5) a range of clean-up options.

In developing such  a program,  EPA will use its RCRA Section 3007 authority to
collect additional information on the nature of mining waste, mining waste
management practices, and  mining waste exposure potential. EPA believes this
authority does not  limit information collection to "hazardous" waste
identified  under Subtitle  C but also authorizes the collection of information
on any solid waste  that the  Agency reasonably believes may  pose a hazard when
improperly managed. (EPA may also use this authority in preparing enforcement
actions.) Initially, EPA will  use this information to develop a program under
Subtitle D. The information, however, may indicate the need to reconsider
Subtitle C for certain mining wastes.

In specifying the appropriate standards, EPA also will further analyze
existing Federal and State authorities and programs and determine future plans
for administering their mining waste programs. Additionally, EPA will perform
analyses of costs, impacts, and benefits and will comply fully with Executive
Orders 12291 and 12498, the Regulatory Flexibility Act, and the Paperwork
Reduction Act.

EPA is concerned that the lack of Federal oversight and enforcement authority
over mining waste controls  under  Subtitle D of RCRA and inadequate State
resources  to develop and implement mining waste programs may jeopardize the
effectiveness of the program. The Administration therefore will work with
Congress to develop the  necessary authority.  In the interim, EPA will use
section 7003 of RCRA and sections 104 and  106 of CERCLA to seek relief in
those cases where wastes from mining sites pose substantial  threats or
imminent  hazards to human health and the environment. Mining waste problems
can also be addressed under RCRA Section 7002 which authorizes citizen
lawsuits for violations of Subtitle D requirements in 40 CFR Part 257.
                                      15

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As EPA develops this program for regulating human health and environmental
risks associated with mining waste, the Agency may find that the Subtitle D
approach is unworkable, perhaps because there is insufficient authority to
implement an effective program (i.e., the Agency does not obtain oversight and
enforcement authority under Subtitle D), or that States lack adequate
resources to develop and implement the program. In such an event, EPA may find
it necessary to reexamine use of Subtitle C authority with modified mining
waste standards in the future.

EPA has already made preliminary contacts with  Congress to discuss the best
approach for an effective mining waste program.  The Agency intends to
immediately begin collecting additional technical, economic, and other
relevant information needed for program development, and to complete its data
analysis by late 1987. EPA hopes to propose revisions to the Subtitle D
criteria that are specific to mining waste by mid-1988.

VII.  EPA RCRA Docket

The  EPA RCRA docket is located at:

United States Environmental Protection Agency,
EPA RCRA Docket (Sub-basement),
401 M Street, SW.,
Washington, DC 20460.

The  docket is open from 9:30 to 3:30 Monday  through Friday, except for Federal
holidays. The public must make an appointment to  review docket materials. Call
Mia  Zmud at (202) 475-9327 or Kate Blow at (202) 382-4675 for appointments.

Copies of the following documents are available for viewing only in the EPA
docket room:

1. Buc & Associates Inc., 1986. Location of Mines and Factors Affecting
Exposure.

2. Charles River Associates,  1986a. Estimated Costs to the U.S. Uranium and
Phosphate Mining Industry for Management of Radioactive Solid Wastes.

3. Charles River Associates,  1986b. Federal Non-EPA Regulations Addressing
Mining Waste Practices.

4. Charles River Associates,  1986c. State Regulations of the U.S. Mining
Industry.

5. Frontier Technical Associates, 1986a. Groundwater Monitoring Data on Ore
Mining and Milling Solid Waste Disposal.

6. ICF, 1986a. Summary of Comments on the Report to Congress.

                                     16

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7. ICF, 1986b. Overview of Superfund Mine Sites.

8. Meridian 1986. Statistical Analysis of Mining Waste Data.

9. Versar, 1986a. Quantities of Cyanide-bearing and Acid-Generating Wastes.

10. Versar, 1986b. Technical Studies Supporting the Mining Waste Regulatory
Determination.

The public may copy a maximum of 50 pages of material from any one regulatory
docket at no cost. Additional copies cost $.20/page.

Dated: June 30, 1986.

Lee M. Thomas,

Administrator.

[FR Doc. 86-15168 Filed 7-2-86; 8:45 am]

BILLING CODE 6560-50-M
                                    17

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Policy for Superfund Compliance with the
   RCRA Land Disposal Restrictions

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                 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                              WASHINGTON, D.C. 20460
 i PRO^°
                                  APR  I 7 1989
                                                                      OFFICE OF
                                                            SOLID WASTE AND EMERGENCY RESPONSE
                                                           OSWER Directive  9347.1-02

MEMORANDUM

SUBJECT:  Policy for Superfund Compliance With the RCRA Land Disposal
          Restrictzlor
FROM:     Jonathan 21. KTar
          Acning Assistant Administrator

TO:       Regional Administrators, Regions I—X
     To transmit the  Superfund policy for complying with the RCRA land
disposal restrictions  (LDRs)  at  Superfund sites.
     CERCLA section  121(d) requires on-site Superfund remedial actions to
comply with Federal, and more stringent State, environmental requirements that
are determined to be applicable or relevant and appropriate requirements
(AjRARs).  Section 121  also identifies six ARAR waivers:  1) interim remedy;
2) greater risk  to human health and the environment; 3) technical
impracticability; 4) equivalent standard of performance; 5) inconsistent
application of State standard; and 6) Fund-balancing.

     With regard to  Superfund removal actions, the current NCP requires on-site
removal actions  to comply with Federal ARARs to the extent practicable,
considering the  exigencies of the situation.  The preamble to the proposed NCP
contains guidance on how to  determine whether compliance is "practicable."

     On—site removal and remedial actions must comply with substantive aspects
of both applicable and relevant and appropriate requirements.  Off-site removal
and remedial actions must comply with both substantive and administrative
aspects of applicable  requirements only.

     The RCRA land disposal  restrictions are a potential ARAR for Superfund
actions.  As you may know, OERR is developing a guidance document to assist the
Regions in complying with the LDRs.  Although several issues must be resolved

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                                      -2-                           9347.1-02

before this guidance is issued, this memorandum will summarize one of the major
issues that has been decided, namely, how to determine whether the LDRs are
"applicable" to a Superfund response action.   This policy will be discussed in
greater detail in the guidance document.

Objective

     In order to assist Regional removal and remedial staff in making' current
site decisions about the LDRs, this memorandum will explain:   1) how to
determine when the LDRs are "applicable" to a Superfund removal or remedial
action, and 2) the Superfund approach for complying with the LDRs when they are
determined to be applicable.  (This memorandum does not address how to make
"relevant and appropriate" determinations.)

Implementation

     Section A below explains how site managers (OSCs, RPMs)  should determine
whether the LDRs are "applicable" to a Superfund response action.  Section B
explains how Superfund intends to comply with the LDRs when they are
determined to be applicable.

A.  Application of the LDRs to CERCLA response actions

     To determine if the LDRs are applicable to a given response action at a
Superfund site, the site manager must answer three questions.  The answer to
each question must be "yes" for the LDRs to be applicable.

    1.  Does the CERCLA action constitute "placement"?

     The LDRs are triggered as applicable requirements by "placement" of
restricted RCRA hazardous wastes in land-based units.   Placement occurs when
wastes are land disposed (or placed) in land-based RCRA units, such as
landfills, surface impoundments, waste piles, and land treatment facilities.
Placement does not occur if wastes are moved within a unit or are left in place
(e.g., capping, in—situ treatment, consolidation within a unit).  Placement
does occur when wastes are moved from one unit and placed in another unit.  For
example, if wastes from a CERCLA site are disposed at an off—site landfill,
this action constitutes placement.

     However, the concept of a RCRA unit may be less useful for uncontrolled
hazardous waste sites, which often involve widespread and dispersed
contamination.  Therefore, to assist in defining when placement occurs for on—
site disposal at Superfund sites, the Agency has developed the concept of an
   Several LDR  requirements  (the  storage restrictions, dilution prohibition,
   and off—site notification requirements, in particular) are triggered when
   restricted wastes  are  generated, or picked up, rather than when the wastes
   are "placed."   However,  the  major LDR restrictions discussed in the
   remainder of this  memorandum are triggered only if wastes are "placed."

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                                      -3-                           9347.1-02

"area of contamination" (AOC).  An AOC is delineated by the extent of
continuous contamination, although one AOC may contain varying types and
concentrations of contamination.  For example, a waste pit with the surrounding
contaminated soil is one AOC and may be viewed as a single "unit," e.g., a
single landfill.  For the purposes of the LDRs, therefore, AOCs are equivalent
to RCRA units.

     Movement of waste within the AOC does not constitute placement, but
movement of waste out of the AOC into another unit will trigger placement.
Placement would occur if wastes from different AOCs are consolidated into one
AOC or if wastes are removed and treated outside the AOC and returned to the
same or a different AOC.  Placement would also occur if wastes are excavated
from the AOC, placed in an incinerator or tank located within the AOC,  and then
redeposited into the AOC, because the incinerator and tank are considered
separate units from the AOC.

    2.  Is the CERCLA waste also a RCRA hazardous waste?

     The LDRs are applicable only to RCRA hazardous wastes (i.e., listed and
characteristic wastes identified under §261).  However, not all wastes  at
Superfund sites are RCRA hazardous wastes.  Therefore, the site manager must
decide if it is reasonably ascertainable, within the scope of the Superfund
site investigation, that the CERCLA waste is also a RCRA hazardous waste.
Reasonable efforts must be used to collect the information needed to determine
if a waste is a RCRA listed or characteristic waste.  (It is expected that
current data collection efforts at Superfund sites should be sufficient for
this purpose.)  The site manager should have affirmative evidence (e.g.,
manifests, records, knowledge of process) to demonstrate that the Superfund
waste is a RCRA hazardous waste for the LDRs to be potentially applicable.

     To determine whether a CERCLA waste is a RCRA characteristic waste, site
managers may test the waste or use their knowledge of the properties of the
waste.  To determine if a waste is a listed waste, sampling alone will  not be
sufficient.  The RCRA listing descriptions will generally require that  the site
manager have knowledge about the source of the waste (for example, did  the
sludge on site result from a wastewater treatment operation?) or its prior use
(e.g., was the waste unused when it was discarded?).

     If the site manager determines that the site waste is a RCRA hazardous
waste, he/she must also determine if that waste is a "California list"  waste.
The California list wastes are a distinct category of RCRA hazardous wastes
regulated under the LDRs.  The LDR regulations describe the California  list
wastes and they will be discussed in the forthcoming guidance document.

     3.  Is the RCRA waste restricted under the LDRs at the time of placement?

     The land disposal restrictions are being phased in for the RCRA hazardous
wastes over a period of time.  Attachment 1 presents the LDR statutory
deadlines established by section 3004 of the 1984 RCRA amendments.  A RCRA
waste becomes a restricted waste under the LDRs on its statutory deadline, or
earlier if EPA chooses to promulgate treatment standards for a waste prior to
this deadline.  Note that after May 1990, all RCRA hazardous wastes (that were

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                                      -4-                           9347.1-02

listed or characteristic as of the 1984 RCRA amendments)  will be restricted
under the LDRs.

     To determine if the LDRs are applicable, site managers should determine if
the RCRA waste will be restricted under the LDRs at the time the waste is to be
placed.

     To summarize Section A, the LDRs are applicable when three conditions are
met:  1) the CERCLA action constitutes placement, 2) the  CERCLA waste is a RGRA
hazardous waste, and 3) the RCRA waste is restricted at the time of placement.
If these conditions are met, the CERCLA action must comply with the LDRs,
unless an ARAR waiver is granted (remedial actions) or compliance with the LDRs
is determined not to be "practicable" (removal actions).
B.  Superfund compliance with the LDRs

     Section B briefly describes the different types of LDR requirements and
provides an overview of the Superfund approach for complying with these LDR
requirements when they are determined to be "applicable."  Section B describes
only the major LDR restrictions; the upcoming guidance document will give a
complete description of all LDR provisions.

     1.  Summary of the major LDR requirements

     When a waste becomes "restricted" on its statutory deadline (or possibly
earlier), one of four types of restrictions will take effect:

    Treatment standard (§268.40-43) - The RCRA amendments direct EPA to
    promulgate treatment standards for all RCRA hazardous wastes by the
    statutory deadlines.  To date, most of the standards set by EPA are
    concentration levels that must be achieved prior to land disposal.  (The
    regulations specify whether a total waste analysis or the Toxicity
    Characteristic Leaching Procedure (TCLP) must be used to measure the
    concentration levels.)  For concentration-based treatment standards, any
    technology may be used to achieve these standards.  However, in limited
    cases, EPA has also promulgated a specific technology as a treatment
    standard, or has established a "no land disposal" treatment standard where
    a waste was no longer generated, no longer being land disposed, or was
    capable of being totally recycled.

    National capacity extension (§268.30-33) - When EPA sets a treatment
    standard for a waste, it must also determine if there is sufficient
    capacity available nationwide to treat the waste to that standard.  If
    not, EPA may grant a nationwide capacity extension for the waste for up to
    two years.  During the extension, the waste does not have to meet the
    treatment standard.  However, if waste that does not meet the standard is
    disposed in a landfill or surface impoundment, the receiving unit must
    meet the RCRA §3004(o) minimum technology requirements (e.g., double
    liner, leachate collection system, ground water monitoring).  Because of
    these limitations on disposal, wastes are still considered "restricted"
    during national capacity extensions.

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                                      -5-                           9347.1-02

    Attachment 2 highlights the national capacity extensions  that EPA has
    granted to date for CERCLA soil and debris wastes  that are contaminated
    with RCRA restricted wastes.

    Soft hammer (§268.8) - If EPA fails to set a treatment standard for a
    First or Second Third waste on the statutory deadline, the soft hammer
    goes into effect automatically.  The soft hammer places two requirements
    on the disposal of wastes in landfills and surface impoundments:   1) the
    receiving unit must meet the RCRA minimum technology requirements,  and
    2) the generator must demonstrate and certify that he has investigated
    treatment options for the waste, and, where treatment is  practically
    available, that the waste has been treated using the best practically
    available treatment method.  The soft hammer remains in effect until EPA
    sets a treatment standard for the waste, or until  the hard hammer falls in
    May 1990, whichever comes first.

    Hard hammer (RCRA §3004(g)(6)(C)) - If EPA fails to set a treatment
    standard for a solvent, dioxin, or California list waste  by the statutory
    deadlines for these wastes, or for any "Third" waste by May 1990, the  hard
    hammer falls.  The hard hammer prohibits all land  disposal of the affected
    waste.
     Compliance with RCRA and the LDRs may also be obtained through several
options other than meeting the restrictions above.  It is  important to note
that these options constitute compliance with RCRA; they do not require an ARAR
waiver under CERCLA.

    A Treatability Variance (§268.44) is available when a  treatment standard
    has been set for a waste.  The variance can be used where,  because the
    site manager's waste is significantly different from the waste used by EPA
    to set the treatment standard, the standard cannot be  met or the BDAT
    technology is inappropriate.  The variance can be granted either
    administratively, for a particular waste at a particular site, or through
    a rule-making procedure, which establishes a new nationwide waste category
    and associated treatment standard.

    An Equivalent Treatment Method Petition (§268.42) can  be used where a
    treatment standard is a specified technology, but the  site manager can
    demonstrate that another technology can achieve an equivalent measure of
    performance.

    A No—Migration Petition (§268.6) can be used as an alternative to any of
    the four restrictions above.  The site manager must demonstrate that there
    will be no migration of hazardous constituents above health-based levels
    from the disposal unit or injection zone for as long as the waste remains
    hazardous.

    Delisting (§260.20 and §260.22) can be used as an alternative to any of
    the four restrictions above, when the RCRA hazardous waste is a listed
    waste.  The site manager must demonstrate that: 1) the waste does not meet
    any of the criteria under which the waste was listed,  and 2) other factors

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                                      -6-
                                                       9347.1-02
    (including additional constituents)  would not  cause  the waste  to  be
    hazardous.

     2.   Superfund approach for complying with  the LDR requirements

     The present Superfund approach for  complying  with the LDRs  when  they are
applicable requirements is illustrated below:
CASE A:  CERCLA liquid or sludge wastes that are  also RCRA  restricted
         hazardous wastes
CERCLA liquid  +  RCRA restricted  +  Placement
  or sludge       hazardous waste
                                      LDR  is  applicable.  Must
                                      comply  (unless  CERCLA
                                      ARAR waiver  is  granted).
                                      If the  LDR restriction  is
                                      a treatment  standard,
                                      evaluate whether  it can
                                      be met.  If  not,
                                      determine if a
                                      Treatability Variance or
                                      other RCRA option is
                                      appropriate.
CASE B:  CERCLA soil or debris wastes that contain RCRA restricted
         hazardous wastes
CERCLA soil
 or debris
+  RCRA restricted
   hazardous waste
Placement   =  LDR is applicable.  Must
               comply (unless CERCLA
               ARAR waiver is granted).
               If LDR restriction is a
               treatment standard, will
               generally be appropriate
               to seek a Treatability
               Variance.  Other RCRA
               options may also be
               appropriate.
     CERCLA response actions often address waste matrices,  such as contaminated
soil and debris, that are different from the RCRA industrial wastes used to set
the LDR treatment standards.  Therefore, the Agency is undertaking a rulemaking
that will set LDR treatment standards specifically for contaminated soil and
debris.  Until that rulemaking is completed, site managers  should use the data
collected during the removal and remedial site investigations to support a
Treatability Variance for soil and debris where necessary.   As part of this
interim approach, the Agency is developing specific guidance for obtaining a
Treatability Variance for soil and debris, which establishes alternate
treatment levels or methods for soil and debris.

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                                      -7-                           9347.1-02

     If you have further questions, you may call the Headquarters Superfund
Regional Coordinators, Carolyn Offutt of the CERCLA program (FTS 475-9760), or
Michaelle Wilson of the RCRA land disposal restrictions program (FTS 382-4770).

Attachments

cc:  Regional Counsel, Regions I-X
     Director, Waste Management Division, Regions I, IV, V, VII, and VIII
     Director, Emergency and Remedial Response Division, Region II
     Director, Hazardous Waste Management Division, Regions III and VI
     Director, Toxics and Waste Management Division, Region IX
     Director, Hazardous Waste Division, Region X
     Environmental Services Division Directors, Regions I, VI, and VII
     Henry Longest
     Sylvia Lowrance
     Bruce Diamond
     Lisa Friedman
     Superfund Branch Chiefs, Regions I-X
     Oil and Hazardous Materials Coordinators, Regions I—X
     Bettie Van Epps, OERR Document Coordinator

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                                 Attachment  1

                           LDR STATUTORY DEADLINES
RCRA HAZARDOUS WASTE                                    STATUTORY DEADLINE*


Spent solvent wastes (F001-F005)                        November 8,  1986

Dioxin wastes (F020-F023 and F026-F028)                 November 8,  1986

California list wastes                                  July 8,  1987
   - Any RCRA hazardous waste; and
   - Liquid (except for HOCs); and
   - Exceeds statutory prohibition level for
     certain cyanides, metals, corrosives,
     PCBs or HOCs

CERCLA/RCRA corrective action soil and debris           November 8,  1988
   (Solvent-containing, dioxin-containing, and
   California list wastes only)

First Third wastes (listed RCRA hazardous wastes)       August 8,  1988

Second Third wastes (listed RCRA hazardous wastes)      June 8,  1989

Third Third wastes (listed and characteristic           May 8,  1990
   RCRA hazardous wastes)

New RCRA wastes (any RCRA hazardous waste listed        Within 6 months
   or identified under RCRA 3001 after                  of listing or
   November 8, 1984)                                    identification**
*  These dates are statutory deadlines in HSWA.   On this date,  some type
   of LDR restriction will apply (i.e., treatment standard,  minimum
   requirement during national capacity extension,  soft hammer,  hard
   hammer).  However, the Agency also has the authority to restrict a waste
   earlier than its statutory deadline.  Currently,  the Agency  is planning
   to restrict certain Third Third wastes in the June 1989 Second Third rule,
   so individual regulations must be crhecked. -

** If EPA misses the 6 month deadline, the waste will not be restricted under
   the LDRs because HSWA contained no hammer provisions for newly identified
   wastes.

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                                                 Attachment 2

                          LDR NATIONAL CAPACITY EXTENSIONS FOR CERCIA SOIL AND DEBRIS
Waste Category
   Statutory
   Deadline
Treatment Standard
  Effective Date
Solvent (F001-F005;

Dioxin (F020-F023 and F026-F028)

California list (HOCs)

First Third:

     Wastes where BOAT is incineration

     Wastes where BOAT is other than incineration

     Soft hammer wastes - treatment standard not
     set;  must meet soft hammer restrictions as of
     8/8/88
November 8, 1988

November 8, 1988

November 8, 1988



August 8, 1988

August 8, 1988

August 8, 1988
November 8, 1990*

November 8, 1990*

November 8, 1990*



August 8, 1990*

August 8, 1988**

      N/A
*  The effective date is based on the granting of a national capacity extension.   During the capacity
   extension, the soil and debris do not have to meet the promulgated treatment standards.   However,  if soil
   or debris that does not meet the standard is disposed in a landfill or surface impoundment,  the receiving
   unit must meet the RCRA minimum technology requirements (double liner, leachate collection system,  ground
   water monitoring).
** Except for K048-K052 and K071, which were granted capacity extensions until August 8,  1990.

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Regional ARARs and LDR Contacts

-------
ISB.
    UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
               WASHINGTON, D.C. 20460
                                  March 1988
                                                OFFICE OF
                                        SOLID WASTE AND EMERGENCY RESPONSE
                                           OSWER Dir.  #9234.1-03
 MEMORANDUM

 SUBJECT:

 FROM:


 TO:
Regional ARARs and LDR Contacts

Henry L. Longest II, Director
Office of Emergency and Remedia
Director, Waste Management Division
   Regions I, IV, V, VII, VIII
Director, Emergency and Remedial Response Division
   Region II
Director, Hazardous Waste Management Division
   Regions III, VI
Director, Toxic and Waste Management Division
   Region IX
Director, Hazardous Waste Division, Region X
 Purpose:
      The purpose of  this  memo  is  to  draw your  attention to
 valuable resources in  the Regions on applicable  or  relevant  and
 appropriate requirements  (ARARs)  policy  and  on RCRA Land Disposal
 Restrictions  (LDR).

 Background:

      As you may know,  each Region has designated an ARARs contact
 person(s) who is responsible  for  funneling ARARs-related
 information of various kinds  to Regional staff (see attached
 list).  My staff works with these Regional representatives to
 transmit information and  policy developments on  ARARs  and to
 identify problems and  questions on ARARs the Regions are facing.
 The Regional ARARs contacts are developing expertise on ARARs  and
 should be a useful resource for Regional staff.

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                               -2-

     The Regional ARARs contacts, for example, were participants
in the pilot CERCLA Compliance With Other Laws Workshop and are
supporting ARARs training sessions in their Region.  The ARARs
contacts have been participating in the monthly ARARs conference
calls instituted by the Policy and Analysis Staff (PAS) in
October, through which they are receiving and contributing up-to-
date information on ARARs-related issues and activities.  We are
pleased that some Regional ARARs contacts have also taken an
active role in ARARs policy development in conjunction with
Headquarters staff.  We appreciate their involvement because it
provides us with a valuable perspective.

     The development of a Headquarters-Regional "network" on ARARs
is one of several initiatives undertaken in the past year to
provide information on implementing the provision in Section
121(d) of SARA that our remedies comply with ARARs.  We have also
developed and made available Part I of the CERCLA Compliance with
Other Laws Manual, which discusses general policy, and RCRA and
water ARARs, and are conducting training in each Region on the
information and policies discussed in the Manual.  These efforts
are being made to ensure that Regional personnel understand ARARs
and -- most importantly -- follow consistent policies in
implementing the statutory requirement to comply with other laws.

     Finally, specific Regional staff are also developing
expertise in perhaps the most significant -- and most complicated
— ARAR for Superfund, the RCRA Land Disposal Restrictions (LDR),
through participation on the workgroup for guidance on CERCLA
compliance with LDR.  Like the ARARs contacts, these Regional
people are valuable resources for information and current
policies, and will serve as conduits between Headquarters and
Regional offices on RCRA LDR developments.

Objective:

     This memo is to make you aware of the role that the ARARs and
LDR contacts are playing in your Region.

Implementation;

     Please support our effort to strengthen the on-going
communication links and inform the appropriate Regional staff of
these resources.

Attachments

cc:  Regional Superfund Branch Chiefs
     Regional Superfund Section Chiefs
     Betti VanEpps, Docket Coordinator

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        LIST OF REGIONAL ARARS CONTACTS
Dennis Huebner
Waste Management Division
Region I
FTS-833-1610

Vince Pitruzello
Emer. & Rem. Res. Division
Region II
FTS-264-3984

Pat McManus
Hazardous Waste Division
Region III
FTS-597-3923

Jim Orban
Waste Management Division
Region IV
FTS-257-2643

John Dikinis
Waste Management Division
Region V
FTS-886-7572

Jim McGuire
Hazardous Waste Management Division
Region VI
FTS-255-6715

Bob Feild
Waste Management Division
Region VII
FTS-757-2856

Joni Teter
Office of Regional Counsel
Region VIII
FTS-564-7550

Jean Rice
Office of Regional Counsel
Region IX
FTS-454-8610

Carol Rushin
Hazardous Waste Division
Region X
FTS-399-7151

   Guidance on Superfund Compliance with LDRs
         Headquarters Workgroup Members

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             Regional Contacts for Superfund Compliance with LDR
Dennis Huebner, Chief  *
VT, RI, & NH Waste Management Branch
Region I
U.S. Environmental Protection Agency
John F. Kennedy Federal Building
Room 2203
Boston MA  02203
FTS: 835-3626
Marty Powell  **
Emergency Response Section (3HW22)
Region III
U.S. Environmental Protection Agenc^
841 Chestnut Street
Philadelphia PA  19107
FTS: 597-8170
Art Wing  **
Oil and Hazardous Materials Section
Region I
U.S. Environmental Protection Agency
New England Regional Laboratory
60 Westview St.
Lexington MA  02173
DDD: 617-860-4306

George Pavlou, Chief  *
NY/CR Remedial Action Branch
Region II
U.S. Environmental Protection Agency
26 Federal Plaza
New York NY  10278
FTS: 264-0106
Bob Jordan  *
Emergency & Remedial Response Br.
Region IV
U.S. Environmental Protection Agency
345 Courtland Street NE
Atlanta GA  30365
FTS: 257-3931
Rita Ford  **
Emergency & Remedial Response Branch
Region IV
U.S. Environmental Protection Agency
345 Courtland Street NE
Atlanta GA  30365
FTS: 257-3931
John Witkowski  **
Emergency Response Sec. (2ERD-RPB-SM)
Region II
U.S. Environmental Protection Agency
Raritan Depot - Building 10
Edison NJ  08837
FTS: 340-6739
Craig Brown
RCRA Branch
Region IV
U.S. Environmental Protection
345 Courtland Street NE
Atlanta GA  30365
FTS: 257-????
Agency
Dave Payne
Office of Regional Counsel
Region II
U.S. Environmental Protection Agency
26 Federal Plaza
New York NY  10278
FTS: 264-4942
Patrick McManus  *
PA Remedial Support Sec. (3HW21)
Superfund Branch
Region III
U.S. Environmental Protection Agency
841 Chestnut Street
Philadelphia PA  19107
FTS: 597-3923
Jim Mayka,  Chief  *
IA/IN Section (5HS11)
Remedial &  Enforcement Response Br.
Region V
U.S. Environmental Protection Agency
230 Dearborn Street
Chicago II   60604
FTS: 353-9229

Bob Bowden  **
Emergency & Enforc. Resp.Br. (5HS11)
Region V
U.S. Environmental Protection Agencv
230 Dearborn Street
Chicago II   60604
FTS: 886-6236

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         Regional Contacts  for  Superfund  Compliance  with  LDR  (cont.)
Jane Lupton
Assistant Regional Counsel
Office of Regional Counsel(5CS-TUB3)
Region V
U.S. Environmental Protection Agency
230 Dearborn Street
Chicago 11  60604
FTS: 886-6609

Diane Spencer
RCRA Permitting Branch  (5HR-13)
Region V
U.S. Environmental Protection Agency
230 Dearborn Street
Chicago II  60604
FTS: 886-3740
Gale A. Wright  *
Superfund Program Branch
Region VII
U.S. Environmental Protection Agenc
726 Minnesota Avenue
Kansas City KS  66101
FTS: 757-????
Paul Doherty  **
Emergency Planning & Response Branc
Region -VII
U.S. Environmental Protection Agenc
25 Funston Road
Kansas City KS  66115
FTS: 757-3881
Garrett Bondy  *
Superfund Program Branch
Region VI
U.S. Environmental Protection Agency
1445 Ross Avenue
Suite 1200
Dallas TX  75202
FTS: 255-6720

Wally Cooper  **
Emergency Response Branch
Region VI
U.S. Environmental Protection Agency
1445 Ross Avenue
Suite 1200
Dallas TX  75202
FTS: 255-2270

Lou Bar i nka
Superfund Compliance Branch
Region VI
U.S. Environmental Protection Agency
1445 Ross Avenue
Suite 1200
Dallas TX  75202
FTS: 255-6735

Harriet Tregoning
Haz. Waste Compliance Branch (6H3ECE)
Region VI
U.S. Environmental Protection Agency
1445 Ross Avenue
Suite 1200
Dallas TX  75202
FTS: 255-6775
Mike Holmes  *  **
Emergency Response Branch (8-HWM-ER
Region VIII
U.S. Environmental Protection Agenc-
999 18th Street
Suite 500
Denver CO  80202
FTS: 564-7080

Katherine Teeters
Office of Regional Counsel
Region VIII
U.S. Environmental Protection Agenc-
999 18th Street
Suite 500
Denver CO  80202
FTS: 564-????

Phil Bobel, Chief  *
Superfund Remedial Branch (T-4-A)
Region IX
U.S. Environmental Protection
215 Fremont Street
San Francisco CA  94105
FTS: 454-8910 ??
Bob Mandel  **
Emergency Response Section (T-4-9)
Region IX
U.S. Environmental Protection Agenc<
215 Fremont Street
San Francisco CA  94105
FTS: 454-8927

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         Regional Contacts  for  Superfund  Compliance  with  LDR  (cont.)
Jean Rice
Assistant Regional Counsel
Office of Regional Counsel  (ORC)
Region IX
U.S. Environmental Protection Agency
215 Fremont Street
San Francisco CA  94105
FTS: 454-8610

Julia Bussey
Superfund Enforcement Branch
Region IX
U.S. Environmental Protection Agency
215 Fremont Street
San Francisco CA  94105
FTS: 454-9383

Judi Schwarz  *
Superfund Branch  (HW-113)
Region X
U.S. Environmental Protection*Agency
1200 Sixth Avenue
Seattle WA  98101
FTS: 399-2684

John Sainsbury  **
Superfund Resp.&  Invest.Sec.(HW-113)
Region X
U.S. Environmental Protection Agency
1200 Sixth Avenue
Seattle WA  98101
FTS: 399-1196
 * = lead contact for remedial prgm.
** = lead contact for removal prgm.

-------
      Land Disposal Restrictions as
 Relevant and Appropriate Requirements
for CERCLA Contaminated Soil and Debris

-------
               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON. D C.  20460
                                      OSWER  Directive No.  9347.2-01

MEMORANDUM

SUBJECT:  Land  Disposal  Restrictions  as  Relevant and Appropriate
          Requirements  for  CERCLA contaminated Soil and Debris

FROM:     Henry L.  Longest  II,  Director  i/t
          Office of Emergency and Remedial Response
          Bruce  M.  Diamond,  Directo^
          Office of Waste  Programs  Enforcement

TO:       Directors,  Waste  Management  Division
              Regions I,  IV,  V,  VII, VIII
          Director,  Emergency and Remedial  Response Division
              Regi on  II
          Directors,  Hazardous Waste Management  Division
              Regions III,  VI
          Director,  Toxic  and Waste Management Division
              Region  IX
          Director,  Hazardous Waste Division
              Region  X
PURPOSE

     To transmit OSWER  policy  on  the  relevance  and  appropriateness
of the Land Disposal  Restrictions  (LDRs)  to  CERCLA  responses
involving contaminated  soil  and debris.
BACKGROUND

     As clarified  in OSWER  Directive  9347.1-02  (see  attachment),
the LDRs are applicable  to  CERCLA  responses  only when  such  actions
constitute placement of  a restricted  RCRA  waste.   Therefore,  if  no
restricted RCRA wastes are  identified  in a Superfund waste  that  is
being placed,  the  LDRs would  not be applicable.   Site-specific
questions have arisen, however, as to  the  relevance  and

-------
                                -2-

appropriateness of the LDRs to soil and debris that do not contain
RCRA restricted wastes.  In particular, Region II  (having
determined that the contaminated soil and debris to be treated and
"placed" at the 93rd Street site did not contain RCRA hazardous
wastes) sought consultation with Headquarters on whether LDRs
should be considered relevant and appropriate given that the
Agency is in the process of developing treatment standards for soil
and debris wastes separate from the treatment standards developed
for industrial process wastes.
OSWER POLICY

     OSWER has concluded that until a rulemaking is completed that
establishes treatment standards for soil and debris, the LDRs
generally should not be considered as relevant and appropriate for
soil or debris that does not contain restricted RCRA wastes.  The
following language should be incorporated into feasibility study
ARAR discussions, proposed plans, and the "Compliance with ARARs"
section of future RODs for situations similar to the above example;

         The Agency is undertaking a rulemaking that will
     specifically apply to soil and debris.   Since that
     rulemaking  is not yet complete, EPA does not consider -LDR
     to be relevant and appropriate at this  site to soil and
     debris that does not contain RCRA restricted wastes.

     Should you  have any questions regarding this policy, please
contact your Regional Coordinators in the Hazardous Site Control
Division, the CERCLA Enforcement Division, or Steve Golian  (FTS
475-9750) in the Site Policy and Guidance Branch.

Attachment


cc:  Sylvia Lowrance, OSW

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      Applicability of Land Disposal Restrictions to
RCRA and CERCLA Ground Water Treatment Reinjection
           Superfund Management Review:
               Recommendation No. 26

-------
     '**
               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON, O.C. 20460
                                                           QfRCt Of
                                                   SOUO WASTE AND EMERGENCY RESPONSE
                       Dcf! 27  ;c32      OSWER Directive *  9234.1-06
MEMORANDUM
SUBJECT: Applicability  of  Land Disposal  Restrictions  to
         RCRA  and CERCLA Ground Water  Treatment Reinjection
         Superfund Management  Review:  Recommendation  No.  2
FROM:    Don R. Clay, Assistant  Administrator
         Office of Solid Waste and  Emergency Response

TO:      Waste Management  Division  Directors
         Regions  I - X

         Regional Counsel
         Regions  I - X


Purpose

     There has been some question as  to  whether ground water
contaminated with restricted  RCRA hazardous wastes, which  is
extracted during  a RCRA corrective  action  or CERCLA response
action, must meet the best demonstrated  available  technology
(BOAT) identified for that waste under the RCRA land disposal
restrictions (LDRs) prior  to  each reinjection, in  a pump-and- treat
reinjection remediation system.   (See RCRA sections 3004  (f),  (g)
and (m) , and 40 C.F.R. Parts  148 and  268.)  This memorandum
explains EPA's interpretation of whether the LDRs  are applicable
or (under CERCLA  response  actions only)  relevant and appropriate
to such reinjections or to the remediation as a whole.

Badcarounfl

     RCRA LDRs prohibit land  disposal of restricted RCRA hazardous
wastes that do not meet treatment . standards after  the effective
date of the restrictions.  Treatment  standards for RCRA hazardous
wastes are based  upon the  best demonstrated available technology
(BOAT) identified for that waste.   See 40  C.F.R. 268.  Because
placement of hazardous waste  into underground injection wells
constitutes "land disposal" under LDR (see RCRA section 3004(>)),
and the ground water undergoing  reinjection may contain a
restricted waste, the issue has  been  raised as to  whether  each
reinjection of contaminated ground  water should meet BOAT  during
response or corrective actions.

-------
                         RATIONALE

     Ground water restoration under RCRA corrective actions and
CERCLA response actions often involves withdrawal,  treatment of
the contaminated water, and reinjection of the treated water into
the ground.  The land disposal restrictions (LDR)  of the Resource
Conservation and Recovery Act (RCRA) prohibit land disposal of
restricted RCRA hazardous wastes that do not meet  treatment
standards after the effective date of the restrictions.   Treatment
standards for RCRA hazardous wastes are based upon the best
demonstrated available technology (BDAT) identified for that
waste.  See 40 C.F.R. 268.  Because placement of hazardous waste
into underground injection wells constitutes "land disposal" under
LDR (see RCRA section 3004(k)), and the ground water undergoing
reinjection may contain a restricted waste, the issue has been
raised as to whether each reinjection of contaminated ground water
should meet BDAT during response or corrective actions.1

     Section 3020 of RCRA [previously section 70102] specifically
addresses waste injection in the context of CERCLA and RCRA
cleanups.  RCRA section 3020(a) bans hazardous waste disposal by
underground injection into or above an underground source of
drinking water (within one-quarter mile of the well).  However,
RCRA section 3020(b) exempts from the ban all reinjections of
treated contaminated ground Water into such formations undertaken
as part of a CERCLA section 104 or 106 response action, or a RCRA
corrective action.  To qualify for the exemption,  the following
three conditions must be met: (1) the injection is a CERCLA
response action or a RCRA corrective action, (2) the contaminated
ground water must be treated to substantially, reduce hazardous
constituents prior to such injection, and (3) the  response action
or corrective action must be sufficient to protect human health
and the environment upon completion.

     Although RCRA section 3020 and the LDR provisions at RCRA
sections 3004(f), (g) and (m) arguably can address the same.
activity, RCRA section 3020 specifically applies to all CERCLA and


     1 CEHCLA remedial actions are required to meet Federal
requirement* and standards at completion of the remedial action if
the Federal standards are applicable or relevant and appropriate
requirements (ARARs), absent invocation of a statutory waiver.
See CERCLA section 121(d).  Agency policy and the  proposed
National Contingency Plan (NCP) require the Agency to comply with
all ARARs pertinent to the action during the course of a remedial
action, as well as upon its completion.  Sfig the proposed NCP
(published at 53 Fed. Reg. 51,394 (Dec. 21, 1988) (to be codified
at 40 C.F.R. 300.435(b)(2)) , and CERCLA Comnliance with Other La
Manual: Part 1. 1-8  (OSWER Directive number 9234.1-01, August 8,
1988) .

     2 RCRA section  3020 was section 7010  in the Hazardous  and
Solid Waste Amendments of 1984, but was re-numbered  in  1986.

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RCRA ground water treatment  reinjections into Class IV injection
wells.3  Consistent with traditional principles of statutory
construction, RCRA section 3020  — which is directly focused on
injections of treated contaminated ground water into Class IV
wells during cleanups  — should be controlling for such
injections; a contrary reading would render section 3020(b)
meaningless.  Where Congress has provided two potentially
applicable statutory provisions, a choice between them is both
necessary and appropriate, and within the discretion of the expert
agency.  Accordingly, EPA construes the provisions of RCRA section
3020 to be applicable instead of LDR provisions at RCRA sections
3004(f), (g), and (m), to reinjections of contaminated ground
water into an underground source of drinking water (USDW), which
are part of a CERCLA response action or RCRA corrective action.

     As a result, the three conditions of RCRA section 3020(b)
must be met during response or corrective actions involving
ground water treatment reinjection into or above underground
sources of drinking water.  Failure to meet these conditions bans
the activity under RCRA section  3020(a).4  First, the injections
must be part of a CERCLA response action or a RCRA corrective
action.  Second, each reinjection has to be treated to
"substantially reduce hazardous  constituents prior to such
injection...11 (RCRA section 3020(b)).  Until guidance is prepared
addressing the issue, steps necessary to "substantially reduce"
hazardous constituents during a  RCRA corrective action or a CERCLA
response action should be decided on a case-by-case basis.  Third,
the response or corrective action upon completion must "be
sufficient to protect human health and the environment" (RCRA
section 3020(b)).  RCRA and CERCLA statutes, regulations and
policies should be reviewed to determine protectiveness.

     The issue may also arise under CERCLA as to whether LDRs are
relevant and appropriate requirements when treated ground water is
reinjected into Class IV wells as part of a CERCLA response
action.  In order to be considered to be both "relevant" and
"appropriate," a requirement must address problems or situations
similar to the circumstances of  the release or remedial action
contemplated, and be well-suited to the site.  A key factor in
determining the potential relevance and appropriateness of a
     3 Class IV injection wells are used to inject contaminated
ground water into or above an underground source of drinking
water.  See 40 C.F.R. 146.5(d).  In most situations, ground water
treatment reinjection involves only Class IV injection wells
because treated ground water is recharged back into an
underground source of drinking water  (USDW) during pump-and-treac
activities, not beneath it.  Other classes of wells are not
subject to section 3020's special provisions.


     4 Note, however, that an ARARs waiver may be appropriate in
certain cases for actions taken under CERCLA.

-------
requirement  is to compare the CERCLA response objective with the
purpose and  objective of the requirement,  see "CERCLA Compliance
with Other Laws Manual" at p. 1-65  (EPA, August 8, 1988); proposed
NCP, 53 FR at 51436  (Dec. 21, 1988)  (proposed section
300.400(9)12)).

     The ultimate purpose of treating and reinjecting ground water
into Class IV wells  is to restore the formation to drinJcing water
quality.  EPA believes that standards that have been specifically
developed to establish drinJcing water quality levels (such as
MCLs5) are particularly well-suited to the accomplishment of that
purpose.  Although LDRs also prescribe treatment levels, those
levels were  not specifically developed to achieve drinking water
quality (although they may often have that result).   Thus, where
drinking water standards are available, the Agency believes that
they will generally  be the relevant and appropriate requirement to
use in setting treatment standards for CERCLA cleanups of drinking
water formations.

     In situations where no drinking water standard has been
promulgated  for the  contaminants to be treated, the Region should
consider potentially relevant and appropriate requirements
(including any available health-based standards, LDR treatment
standards, etc.) and attain the standard, if any, that the Agency
finds is "relevant and appropriate under the circumstances of the
release" (or justify a waiver).6  EPA guidance sets out a number
of factors for deciding if a requirement is relevant and
appropriate  under the circumstances of the release.   See CERCLA
Compliance with Other Laws Manual, at p. 1-67.
NOTICE: The policies set out in this memorandum 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.
EPA officials may decide to follow the guidance provided in this
memorandum, or to act at variance with the guidance, based on an
analysis of specific site circumstances.  The Agency also reserves
the right to change this guidance at any time without public
notice.
     5 See the discussion of MCLs and MCLGs in the proposed and
final NCP.

     6 If no such standards are relevant and appropriate, TBCs may
be used as cleanup  levels; use of a TBC should be explained and
justified for each  specific case.

-------
     Separate from the restrictions found in RCRA LDRs,  an
independent provision of the statute, RCRA Section 3020, bans
hazardous waste injection into drinking water formations (Class IV
injection wells), unless the conditions in subpart (b) are met.
Subpart (b) permits reinjection of contaminated ground water that
has been treated if: (1) the injection is a CERCLA response action
or a RCRA corrective action, (2) the contaminated ground water is
treated to substantially reduce hazardous constituents prior to
each injection, and (3) the response action or corrective action
is sufficient to protect human health and the environment upon
completion.  (See RCRA section 3020(b).)

Resolution

     For the reasons specified in the attachment to this
memorandum, LDR is not applicable to these activities.  Instead of
LDR, RCRA section 3020 applies to reinjection of treated
contaminated ground water into Class IV injection wells during
CERCLA response actions or RCRA corrective actions.  Moreover, for
CERCLA response actions where the goal is to clean up ground water
to drinking water levels, the Agency believes that health-based
drinking water standards (e.g. MCLs) —'rather than LDRs — will
generally be the relevant and appropriate cleanup standard.  See
the attachment.

     Until guidance addresses the issue, what is required to
"substantially reduce" hazardous constituents prior to each
injection in a CERCLA response action or RCRA corrective action
should be determined on a case-by-case basis.  RCRA and CERCLA
program policies and guidance should be reviewed to determine
protectiveness upon completion of the action.


Attachment

cc:  CERCLA and RCRA Branch Chiefs
     Office of Drinking Water

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         Superfund LDR Guide #1
Overview of RCRA Land Disposal Restrictions

-------
A EPA
                          United States
                          Environmental Protection
                          Agency
                          Office of
                          Solid Waste and
                          Emergency Response
  Superfund Publication:
  9347.3-O1FS
  July 1989
Superfund LDR Guide #1
Overview  of  RCRA
Land Disposal  Restrictions
(LDRs)
    The Hazardous and Solid "Waste Amendments (HSWA) to the Resource Conservation and Recovery Act (RCRA)
- - P.L. 98-616, signed on November 8, 1984 - - include specific provisions restricting the land disposal of RCRA
hazardous wastes. The purpose of these HSWA provisions is to minimize the potential of future risk to human health
and the environment by requiring the treatment  of hazardous  wastes prior to their land disposal  This guide
summarizes the major components of the  land disposal  restrictions (LDRs), outlines the  types of  restrictions
imposed, and presents the compliance options specified in the regulation.  Other Superfund LDR Guides are listed
at the end of this guide.  More detailed guidance on Superfund compliance with the LDRs is being prepared by the
Office of Solid Waste and Emergency  Response (OSWER).
DEFINITION OF LAND DISPOSAL

    The LDRs place restrictions on the land disposal
of RCRA  hazardous wastes.  The definition  of land
disposal (or  "placement," which is  synonymous with
"land  disposal")  under  RCRA  includes,  but is  not
limited to:

    any "placement" of hazardous waste in a landfill,
    surface impoundment, waste pile, injection well,
    land treatment facility, salt dome formation, salt
    bed formation, underground mine or cave, and
    concrete bunker or vault. (RCRA §3004(k))

    The LDRs apply only to RCRA hazardous wastes
that are land disposed or placed. They do not apply
to wastes that are discharged to surface waters (where
National  Pollutant  Discharge  Elimination  System
(NPDES) requirements  apply)  or to Publicly Owned
Treatment  Works (where pretreatment requirements
apply). The LDRs also  do not apply to contaminated
ground  water treated   and  supplied  directly  to
households  (where  Maximum  Contaminant  Levels
(MCLs) generally apply).

    It  is important  to  note  that the LDRs apply
prospectively to wastes that are land disposed after the
effective date  of the restrictions (i.e.,  the LDRs   do
not require that wastes land disposed prior to the date
of the restrictions be removed and treated).
                          STATUTORY DEADLINES

                             HSWA  directed  EPA  to  establish  treatment
                          standards  for  each  of  seven  groups  of RCRA
                          hazardous wastes by specific  dates.   These dates,
                          referred  to  as  statutory deadlines,  will  eventually
                          restrict land disposal of all RCRA hazardous wastes,
                          as shown in Highlight 1.
                            Highlight i: LDR STATUTORY DEADLINES
                                 Waste
                            Spent Solvent and Dicotin-
                            Containing Wastes

                            California List Wastes

                            First Third Wastes

                            Spent Solvent, Diorin-
                            Containing, and California
                            List Soil and Debris From
                            CERCLA/RCRA Corrective
                            Actions

                            Second Third Wastes

                            Third Third Wastes

                            Newly Identified
                            Wastes
Statutory Deadline
November 8, 1986


JulyS, 1987

August 8, 1988

November 8, 1988
June 8, 1989

May 8, 1990

Within 6 months of
identification as a
hazardous waste
                                                                              Printed on recycled Paper

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    The statutory deadlines are important because they
are  the  dates  on  which RCRA  wastes  become
"restricted," although EPA has the authority to restrict
a waste before its statutory deadline.  For example, the
Agency has restricted certain Second Third wastes in
the First Third rule and certain Third Third wastes in
the June 1989 Second Third rule.

STATUTORY WASTE CATEGORIES

    The first  category of wastes (refer to Highlight 1)
includes: the F001-F005 spent solvent-containing RCRA
wastes  and   the  F020-F023  and  F026-F028  dioxin-
containing RCRA wastes.  The second category, the
California list wastes, is a  distinct category of RCRA
hazardous wastes described further in Superfund LDR
Guide #2. The three categories of  scheduled wastes
(i.e., First Third, Second  Third, Third Third wastes)
include all listed and characteristic hazardous wastes
identified as  of  November  8,  1984  (excluding the
solvent and  dioxin wastes mentioned  above).   EPA
ranked the scheduled  wastes  based  on their  toxicity
and volume  and placed the  highest toxicity/volume
wastes  in the  "First  Third."   Soil  and debris (see
Highlight 2)  contaminated  with  spent solvent-  or
dioxin-containing and California list  wastes generated
during  CERCLA response  and  RCRA  corrective
actions were  given   a separate statutory  deadline.
Finally, wastes newly  identified or  listed after 1984
must have standards  set  within six  months  of their
identification  or listing as  a hazardous waste.
   Highlight 2: DEFINITIONS OF SOIL AND
   DEBRIS

       Soil is defined  as materials that  are
   primarily of geologic origin such as sand, silt,
   loam, or clay that are indigenous to the natural
   geological  environment at or near the
   CERCLA  site.  (In many cases, soil is mixed
   with liquids, sludges, and/or debris.)

       Debris is defined as materials that are
   primarily non-geologic in origin such as grass,
   trees, stumps, and  man-made materials such as
   concrete, clothing, partially buried whole or
   empty drums, capacitors, and other synthetic
   manufacturing items, such as liners.  (It does
   not include synthetic organic chemicals, but
   may include materials contaminated with these
   chemicals.)
TYPES OF LDR RESTRICTIONS

   As discussed above, a  RCRA  hazardous waste
becomes  "restricted" under the LDRs on its statutory
deadline  (or earlier if EPA promulgates the restriction
ahead of schedule). On that date, one of four types of
restrictions will apply.

1.  Treatment standards:  EPA may set one  of three
   types  of treatment standards for restricted wastes:

   •   A concentration level to be achieved prior to
       disposal (the most common type of treatment
       standard);

   •   A specified technology to  be used  prior  to
       disposal; or

   •   A  "no  land disposal"  designation when  the
       waste is no longer generated, is totally recycled,
       is not  currently being land disposed,  or no
       residuals are produced from treatment.
   All   three   types   of  treatment  standards  are
   established based on the best demonstrated available
   technology (BOAT) identified for that waste.

2.  Minimum technology requirements during a national
   capacity  extension:  When  EPA sets a  treatment
   standard, it may grant a national capacity extension
   (for up to two years) if sufficient treatment capacity
   is not available for  that waste.   During a national
   capacity extension, the treatment standards set for
   a waste do not have to be met.  However, if wastes
   that do not  meet the  standards are disposed of  in
   a landfill  or surface impoundment, the receiving unit
   must  meet  the  RCRA  minimum   technology
   requirements (i.e., double liner, leachate collection
   system, and  ground-water monitoring).

   When EPA sets treatment standards for Third Third
   wastes in May 1990, it may grant a national capacity
   extension, but only for  up to two years.  Therefore,
   by May 1992, all national  capacity extensions will
   have expired.  The  only  exception  may  be  if EPA
   grants an extension when  it sets treatment standards
   for newly identified wastes.  Superfund LDR Guide
   #3 provides additional information on the minimum
   technology requirements.

3.  Soft  hammer restrictions:  If EPA  fails to  set a
   treatment standard  for  a  First or  Second Third

-------
   waste  by  its  statutory  deadline,  soft  hammer
   restrictions apply.  The soft hammer requirements
   place the following restrictions on the disposal of
   wastes in landfills and  surface impoundments:

    •  The   receiving  unit   must  meet   minimum
       technology requirements; and

    •  Site  managers  (OSCs,  RPMs  as generators)
       must determine  if treatment  is  practically
       available. If treatment is practically available, the
       site  manager  must use  the  best  practically
       available  treatment to  treat  wastes  before
       disposal; if treatment is not practically available,
       the  wastes  may   be  disposed  of  without
       treatment.

    Land disposal in other types of units, such as land
    treatment units and waste piles, is not restricted
    under soft hammers, although an LDR notification
    will  be  required  for actions involving  off-site
    disposal in such units.

    Soft hammer restrictions remain  in effect  until
    EPA sets a treatment  standard, or until May 1990,
    when  the   hard   hammer  restrictions   become
    effective.

4.  Hard hammer restrictions:  If EPA fails to set a
    treatment standard by the statutory deadlines for
    solvent- and  dioxin-containing and  California list
    wastes, or by May 8, 1990, for any of the scheduled
    wastes,  the hard hammer restrictions prohibit all
    land  disposal  of the affected  waste   until a
    treatment standard is  promulgated.  To date, the
    hard hammer has only fallen for certain California
    list wastes.

    Superfund   LDR  Guide   #4   provides   more
    information on soft and hard hammer restrictions.

LDR COMPLIANCE  OPTIONS

    EPA recognizes that not all wastes can be treated
to the  LDR treatment standards and that  alternative
treatment standards and methods of land disposal may
provide significant reduction in the toxicity, mobility, or
volume of wastes and be  protective  of human health
and the  environment. The LDRs, therefore,  provide
the following  compliance options  to  meeting  the
restrictions discussed above.

•   Treatability Variance: This option is  available when
    EPA has   set   a   treatment  standard  as  a
    concentration level, but because a generator's waste
    differs significantly from the waste  used to set the
    standard, the promulgated treatment standard cannot
    be met or the BDAT technology is inappropriate for
    that waste.    (For  the  purposes  of the  LDRs,
    CERCLA site managers are considered generators
    of hazardous waste.) Under a Treatability Variance,
    EPA approves an alternate treatment standard that
    must  be  met  before that waste can  be land
    disposed.  Superfund LDR Guides #6A and #6B
    provide more information for obtaining Treatability
    Variances for remedial and removal actions.

•  Equivalent Treatment Method Petition: This option
   is available when EPA has set a treatment standard
   that  is  a  specified technology  (e.g.,  incineration).
   Generators may use  a different technology (e.g.,
   chemical treatment)  if they can demonstrate  that
   this  technology  will  achieve  a   measure   of
   performance  equivalent  to  that  of the  specified
   technology.

•  No Migration Petition: This  option may be used to
   meet any of the four types of LDR restrictions.
   Under  this  option, generators  may  land  dispose
   wastes  that do not meet the LDR restrictions if
   they can   demonstrate  that  there  will   be   "no
   migration" of hazardous constituents above health-
   based levels from the disposal unit or injection zone
   for as long as the wastes remain hazardous.

•  Delistiflg.  This option may be used to demonstrate
   that  a  waste is nonhazardous and,  therefore,  not
   subject to any of the  RCRA Subtitle C hazardous
   waste regulations, including the LDRs.  Delisting
   only applies when the CERCLA waste is  a listed
   RCRA  hazardous waste.   (Characteristic  wastes
   need not be delisted, but they can be treated to no
   longer exhibit the characteristic.)  Generators must
   demonstrate that: (1)  the waste does not meet any
   of the criteria for which the waste  was  listed as a
   hazardous waste,  and (2) other factors (including
   additional constituents) do not  cause the  waste to
   be hazardous.

   The LDRs also permit a case-by-case extension of
up to two years, which allows a site-specific extension
of the  effective date if a  generator  has  a  binding
contractual commitment for treatment capacity and can
show that  no capacity currently exists anywhere in  the
United  States.  This option, however, is generally  not
appropriate for Superfund response actions.

SOIL AND DEBRIS WASTES

   As discussed earlier,  the  LDRs apply to soil  and
debris  when  they are contaminated with a restricted
RCRA  hazardous waste.   Because of  the  complex

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nature of many soil and debris matrices (as compared
with the industrial process wastes upon which the LDR
treatment standards were based), it may be difficult to
meet  these standards for wastes mixed with soil  and
debris.  Consequently, the Agency is  undertaking  a
rulemaking that will set LDR treatment  standards
specifically  for soil and debris.  Until that rulemaking
is  completed,  however, site  managers  may need to
obtain a Treatability Variance  for actions addressing
contaminated soil and debris.

OTHER LDR REQUIREMENTS

    In addition to  the four  types   of  restrictions
described above, the LDRs also include the  following
requirements:

•   Storage Prohibition:   The LDRs prohibit  the
    storage of restricted wastes (including soft hammer
    wastes) unless  storage is solely for  the purpose of
    accumulating sufficient  quantities   of wastes  to
    facilitate  proper treatment, recovery, or disposal.
    For periods of  up to one year,  the burden is
    generally on EPA to prove  that  storage is  not
    needed to facilitate proper treatment, recovery, or
    disposal; after one year, the burden of proof shifts
    to the  storage  facility.   Temporary storage used
    during  CERCLA  actions  to  facilitate  proper
    disposal  (e.g.,   storage while  awaiting  sampling
    results, or while selecting  and designing a remedy)
    is allowable under  the storage prohibition.

•   Exemption    for    Treatment    in    Surface
    Impoundments: Placing untreated wastes in surface
    impoundments (that meet the minimum technology
    requirements) for treatment is permissible, provided
    the treatment residues that do not  meet  the LDR
    treatment   standards  or   prohibition  levels  are
    removed for subsequent management (through any
    treatment  other than treatment in another  surface
    impoundment) within one year  of  placement  into
    the surface impoundment.

•   Dilution Prohibition:  Dilution of  a waste as  a
    means  to  comply  with the LDRs  is prohibited.
    However, "dilution" that is part of treatment (e.g.,
    mixing for immobifcation)  is permissible.

    The LDRs also establish  requirements for  testing,
notification, and certification  of compliance.
Testing:   Once  it is  determined that a waste  is
restricted  under the LDRs, generators, treatment
facilities, or disposal facilities must test the waste
at a  frequency specified  in  the  facility's  waste
analysis plan to demonstrate compliance with LDR
treatment  standards or California list prohibition
levels prior to land disposal.

Notification: All restricted wastes that are shipped
to an off-site treatment, storage, or disposal facility
must be accompanied by a notification that includes
the  EPA  hazardous  waste  number   and  the
applicable LDR restriction that is in effect for those
wastes.

Certification: A treatment facility must certify  that
the LDR treatment standards are attained before a
restricted waste is land disposed off-site. (There are
also  certification requirements specifically for  soft
hammer wastes;  see Superfund LDR Guide #4.)
OTHER AVAILABLE SUPERFUND/LDR
GUIDES

#2  Complying with the California List
     Restrictions Under LDRs

#3  Treatment Standards and Minimum
     Technology  Requirements Under LDRs

#4  Complying With the Hammer Restrictions
     Under LDRs

#5  Determining When LDRs are Applicable
     to CERCLA Response Actions

#6A Obtaining a Soil and Debris Treatability
     Variance for Remedial Actions

#6B Obtaining a Soil and Debris Treatability
     Variance for Removal Actions*

#7  Determining When LDRs Are Relevant
     and Appropriate to CERCLA Response
     Actions*

*Currently  being prepared in OSWER

-------
           Superfund LDR Guide #2
Complying with California List Restrictions Under
           Land Disposal Restrictions

-------
EPA
                          United Slates
                          Environmental Protection
                          Agency
                                               Office of
                                               Solid Waste and
                                               Emergency Response
Superfund Publication:
9347.3-O2FS
July 1989
                          Superfund LDR Guide #2
                          Complying  With  the California
                          List  Restrictions  Under  Land
                          Disposal   Restrictions (LDRs)
   The Hazardous and Solid Waste Amendments (HSWA) to the Resource Conservation and Recovery Act (RCRA)
include specific restrictions on the  land disposal of RCRA hazardous wastes.  California list \vastes are a distinct
category of RCRA hazardous  wastes that are restricted under  the land disposal restrictions (LDRs).   This guide
defines the California list wastes, summarizes their respective restrictions, and discusses their potential  overlap with
other  LDR treatment  standards.   More detailed guidance on California list waste  restrictions  .inu  ••upernind
compliance with the  LDRs is being prepared by the Office  of Solid Waste and Emergency Response (OSWER).
DEFINITION OF CALIFORNIA LIST WASTES

   To  be  classified  as a California list, waste, three
conditions must be met:

(1) The waste must be a RCRA listed or characteristic
   waste:

(2) The waste must  be a liquid (i.e., it fails method
   9095 Paint Filter Liquids Test [PFLT]), except for
   Halogenated Organic Compounds (HOCs). which
   may be liquid or non-liquid; and

(3) The waste must exceed statutory prohibition levels
   for specified constituents.

   The types of wastes that  may be  California list
wastes are:  free cyanides,  certain  metals, corrosive
wastes,  PCBs,  and HOCs.  (HOCs are compounds
containing  carbon and a halogen, such  as  fluorine,
chlorine, bromine,  iodine,  and  astatine,  in  their
molecular  formula).   The  Agency has  limited  the
restricted HOCs to approximately 100 HOCs listed in
Appendix HI to 40 CFR Part  268.  These  restricted
HOCs include solvents, pesticides. PCBs, and dioxins.

   These  hazardous  wastes   are  referred  to  as
California list wastes because  the State of California
developed regulations to restrict the land disposal of
wastes  containing these constituents,  and  Congress
subsequently incorporated  these provisions  into  the
1984  HSWA amendments to RCRA.  Even if LDR
treatment standards  have not  been promulgated for
certain RCRA wastes (e.g., Third Third wastes), these
wastes may be subject to California list restrictions.
                                               If the Agency  has promulgated a treatment  itandard
                                               for a California list hazardous waste, the waste  must
                                               attain that treatment standard betore land disposal. If
                                               the Agency has not set a treatment standard, the waste
                                               must be treated to below  the prohibition level (or
                                               rendered non-liquid if a non-HOC waste) before it
                                               may be land disposed.
                                               CALIFORNIA LIST LDR RESTRICTIONS
                                                  The Agency has promulgated ireatment standards
                                               for PCB-containing wastes and HOC-containing wastes
                                               (except for dilute HOC wastewaters).  The treatment
                                               standards for PCBs and some HOCs became effective
                                               on July 8, 1987.

                                                  The Agency has  not set treatment  standards for
                                               the  remaining California  list wastes.   Instead,  the
                                               Agency codified  the statutory prohibition  levels for
                                               corrosive wastes  and dilute HOC  wastewaters  and
                                               allowed the hard hammer provisions to take effect for
                                               free  cyanides  and  California  list  metals.   The
                                               prohibitions  on these wastes became effective on July
                                               8, 19S7 The effects of these restrictions are the same:
                                               prohibiting the land disposal of these wastes above the
                                               prohibition  levels.

                                                 Based on  a finding of inadequate treatment capacity,
                                               EPA granted a nationwide extension to the effective
                                               date for treating California list HOC wastes until July
                                               8,  1989.  The Agency subsequently  rescinded  the
                                               variance, and the restriction for HOC wastes became
                                               effective November 8, 1988.  The Agency also granted

                                                                          Printed on Recycled Paper

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an extension of the effective  date for HOC-containing
soil and  debris wastes until July 8,  1989, for soil and
debris wastes not  from CERCLA/RCRA corrective
actions, and until  November 8, 1990,  for soil and debris
wastes  from  CERCLA/RCRA  corrective  actions.
California  list  wastes  granted  a  national  capacity
variance  from the treatment standards may be disposed
of in a  landfill  or surface impoundment only if the
receiving  unit  complies  with  minimum  technology
requirements (See  Superfund LDR  Guide #3).  The
prohibition  levels,  treatment standards, and  effective
dates for the California list  wastes are  presented in
Highlight 1.

OVERLAP WITH OTHER TREATMENT STANDARDS

    As noted earlier, wastes  must be RCRA  listed or
characteristic  wastes  to   be California  list  wastes.
Therefore, California list wastes may also be restricted
as solvent- or dioxin-containing wastes or as scheduled
wastes.  For wastes  covered  by more  than one  LDR
standard, the LDR restrictions for  the more  specific
waste  stream generally  take  precedence,  once the
standard  is promulgated.   For  example,  F006 non-
wastewaters may  be restricted under the California list
rule because the  waste is a  liquid  and  may  contain
nickel above the statutory prohibition level  The F006
                       treatment  standard,  which  is  expressed   as  a
                       concentration level, however,  takes precedence over the
                       California  list  restriction  (i.e.,  codified  prohibition
                       level).

                          The  Agency  has  determined  that  soft  hammer
                       wastes and wastes for which national capacity variances
                       have been granted remain subject to  California list
                       prohibitions  (i.e., if either  of these waste  types  is
                       subject  to a  California  list treatment  standard  or
                       statutory prohibition level, that treatment  standard  or
                       statutory level must  be met  before the waste can  be
                       land disposed).  If a California list treatment  standard
                       is  promulgated for  a soft hammer  waste, the  more
                       stringent of the  restrictions apply.   For example, if a
                       non-liquid  soft hammer  waste contains 1,100 mg/kg
                       total HOCs,  the  waste must meet the  California list
                       treatment  standard  of incineration  or  burning in a
                       boiler or industrial furnace before  land  disposal.  If a
                       liquid soft  hammer waste contains 510 mg/1 lead (for
                       which no California  list treatment standard exists), the
                       soft  hammer  restrictions  apply.   If  treatment is  not
                       available, the waste must at least be treated below the
                       prohibition level (i.e., 500 mg/1) or rendered non-liquid
                       and can only be disposed of in a surface impoundment
                       or  landfill  if  the  receiving  unit  meets  minimum
                       technology requirements or has an equivalent  waiver.
                    Highlight 1 - PROHIBITION LEVELS AND TREATMENT STANDARDS
                                      FOR CALIFORNIA LIST WASTES
   California  List
     Constituent
                            Prohibition Level
                                                           Treatment Standard
                                                                                       Effective Date
   Free Cyanides

   Metals
    Arsenic
    Cadffll'-m
    Chromium VI
    Lead
    Mercury
    Nickel
    Selenium
    Thallium

   Corrosives
   PCBs
    > 500 ppm
    > 50 ppm and <  500 ppm
                                    10CO mg/1
 500 mg/1
 100 mg/1
 500 mg/1
 500 mg/1
  20 mg/1
 13<. mg/1
 100 mg/1
 130 mg/1

 pH < 2 0
  50 ppm
  50  ppm
   Halogenated Organic Compounds (HOCs)

                                    1000  mg/kg
    Dilute Wastewaters
    (<10,000 mg/kg)
     Non-Dilute Wastewaters
     and Non-Liquids

     Non-RCRA/CERCLA  Soil
     and Debris

     RCRA/CERCLA Soil and
     Debris
1000  mg/kg


1000  mg/kg


1000  rig/kg
                                                           NONE --  hard hammer
                       NONE --  hard hammer
                                                           NONE -- Codified
                                                           prohibition  levels
INCINERATION as speci-
fied under TSCA,
99 9999Z ORE

INCIHERATION OR THERMAL
DESTRUCTION in Boiler,
99.9999Z ORE
                       NONE -- Codified
                       prohibition levels


                       INCINERATION 99 99Z DRE
                                                   July 8, 1987


                                                   July 8, 1987
                                                                                       July  8,  1937
                                                   July  8,  1987
                                                                                       July 8,  1987
                                                   July 8,  1987
                                                                                       Nov.  8,  1988
INCINERATION 99 991 DRE      July  8,  1989


INCINERATION 99.99Z DRE      Nov.  8,  1990

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     Superfund LDR Guide #3
Treatment Standards and Minimum
 Technology Requirements Under
    Land Disposal Restrictions

-------
                          United States
                          Environmental Protection
                          Agency
Office at
Solid Waste and
Emergency Response
Superfund Publication-
9347.3-O3FS
July 1989
*>EPA             Superfund LDR Guide  #3
                         Treatment  Standards  and
                         Minimum  Technology
                         Requirements  Under Land
                         Disposal  Restrictions  (LDRs)
    CERCLA section 121(d)(2) requires that Superfund response actions comply with other environmental laws that
 are applicable or relevant and appropriate requirements (ARARs). A potential ARAR for CERCLA responses is
 the Resource Conservation  and  Recovery Act  (RCRA) land disposal restrictions (LDRs) established  under the
 Hazardous and  Solid Waste Amendments (HSWA).  The LDRs prohibit the land disposal of restricted RCRA
 hazardous wastes unless these wastes meet treatment standards specified in 40 CFR Part 268, meet the minimum
 technology requirements during a national treatment capacity extension, or satisfy the requirements of one of the other
 available compliance options  (i.e., Treatability Variance, Equivalent Treatment Method Petition, No Migration Petition,
 or Delisting). This guide summarizes  the types and effective dates  of treatment standards and outlines how to
 comply with the treatment  standards  and the minimum technology requirements set during  national capacity
 extensions. More detailed guidance on Superfund compliance with the LDRs is being prepared by the Office of Solid
 Waste and Emergency Response (OSWER).
TYPES OF TREATMENT STANDARDS

   EPA has established treatment standards under
the LDRs  on the  basis  of  the best  demonstrated
available technology  (BDAT) rather than  risk-based
or health-based standards.  "Best" is defined as  that
technology which offers the greatest reduction (based
on a statistical analysis) of toxicity, mobility, or volume
of the  waste.   To be "demonstrated."  a  treatment
technology must be demonstrated to work at a  full-
scale level (i.e., technologies available only on a pilot-
or bench-scale are not considered demonstrated).  To
be  "available."  a treatment  technology  must  be
commercially available.

   Within this framework, the Agency has established
three types of LDR treatment standards:

•  Concentration levels - which must be attained
   before the  wastes or treatment  residuals  may be
   land disposed;

•  Specified technologies -- which must be  applied to
   the  waste  before  the residuals  may  be  land
   disposed; and

•  No land  disposal  - which prohibits land disposal
   of certain restricted hazardous wastes.

Concentration Levels

   The  majority of  the LDR  treatment  standards
promulgated  to  date  are concentration  levels.   For
wastes   with  treatment  standards  expressed  as
concentrations, any technology that can achieve the
required levels may be used unless the technology is
otherwise prohibited (i.e., the BDAT used by EPA to
set the standards need not be used).

   To establish a concentration level(s) for a specific
waste code (e.g., K062), the Agency selects a subset of
the hazardous constituents found, in the waste (known
as "BDAT constituents") and sets treatment standards
for each of these constituents.  Although  these wastes
may contain additional constituents, only the treatment
standards for the  "BDAT constituents" must  be met
before the wastes can be land disposed. The residues
from treatment of an originally listed waste (e.g., ash,
scrubber water) are also listed RCRA hazardous wastes
(because of the "derived from" rule),  and therefore,
also are prohibited from land disposal unless they meet
treatment standards  for  the waste  code(s)  of the
original listed waste(s) from which they derive.

   EPA  has  promulgated  separate  standards  for
wastewaters   and  nonwastewaters  for   treatment
standards expressed as concentration levels. For LDRs,
wastewaters  normally are defined as wastes containing
Icoo  than one percent total organic carbon (TOC) and
lc~is  than one percent total suspended solids. All other
materials  (including soil  and debris) are  classified  as
nonwastewaters, except for F001-F005 wastes, for which
only the TOC is used to define wastewaters.

   Concentrations of BDAT constituents  in  solid
residues   from  treatment must  not  exceed  the

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nomvastewater   concentrations.      Similarly,   the
concentration  of  BOAT constituents in wastewaters
from treatment (e.g.. incineration scrubber water) must
not exceed the wastewater concentrations. Highlight 1
provides   an   example  of  standards   expressed  as
concentration levels for  K062 waste.
Highlight 1 - TREATMENT
STANDARDS FOR K062 WASTE
Constituent
Nonwastewater
Total chromium
Lead
Wastewater
Total chromium
Nickel
Lead
Treatment
Total Waste
Cme/kel
NA
NA
032
0.44
004
Standard
TCLP
fme/0
0.094
037
NA
NA
NA
K062 waste is spent pickle liquor generated by
the steel finishing operations of facilities
within the iron and steel industry.
Specified Technologies

    If  a treatment  standard is  promulgated as  a
specified technology, that technology must be used to
treat the waste unless an Equivalent Treatment Method
Petition is approved  by the Administrator.   To  be
granted, such a  petition must demonstrate that the
alternative  technology achieves an  equivalent measure
of performance.   For  example, the Agency has set the
treatment  standard  for  California list  PCB  wastes
containing  greater  than  500 ppm  PCBs as  thermal
destruction.  These  wastes  must  be  incinerated  to
99.9999 percent  destruction and  removal efficiency
(DRE) under the LDRs before the ash from treatment
may be land disposed unless a Petition allowing  an
equivalent  treatment method is granted.

No Land Disposal

    EPA sets a standard of no land  disposal when,
after   examining  available   data,   the   Agency  has
determined that:  the waste can  be totally  recycled
(e.g.,  on-site, closed loop recycling); the waste is not
currently being land disposed; the waste is no longer
eenerated;  or no residuals are anticipated from the use
of the BOAT.

    Although  certain wastes  may  no  longer  be
generated  or land disposed, these  wastes may still  be
found at Superfund sites.  EPA has amended most of
these waste codes,  however,  to apply only to wastes
generated from  the process  described  in  the  listing
description and disposed of after the effective date of
the  prohibition  (see  54 FR  18836,  May 2,  1989).
Therefore, CERCLA  wastes  ordinarily would  not be
subject to these standards.

COMPLYING WITH LDR TREATMENT STANDARDS

    There  are  two  types  of tests  for  evaluating
compliance that  may  be required,  depending on  how
the treatment standards are promulgated:  the Total
Waste Analysis (TWA) measures the total concentration
levels of the hazardous constituents in  the waste or
treatment residuals; and the  Toxicity Characteristic
Leaching  Procedure (TCLP) measures  concentration
levels in the waste extract as a result of the TCLP  test.

    The  TWA test  generally is  used  for  organic
constituents when a removal or destruction  technology
is  the  BDAT.   The TCLP generally  is  used  for
inorganics when  an immobilization BDAT is the basis
for the standard.  However, the TCLP is also used for
the solvent- and dioxin-containing waste LDR treatment
standards and TWA is used for metals when BDAT is
based on  metals recovery.  Site managers (OSCs and
RPMs for on-site  treatment  and  disposal actions) or
treatment facilities (for off-site disposal  actions) must
test wastes after  treatment and before land  disposal to
determine if the LDR treatment standards  are met.

TREATMENT STANDARDS  IN EFFECT FOR RCRA
HAZARDOUS WASTES

    Once  a  determination  that the LDRs are ARARs
has  been  made (see Superfund LDR guide #5), site
managers must determine which of the  specific LDR
restrictions are in effect for their waste(s) of concern.
If the Agency has promulgated a  treatment standard
for  a restricted  RCRA hazardous waste,  either  the
LDR treatment standards  or  the minimum  technology
requirements will be  in effect.  If EPA  has not set a
treatment standard for a restricted RCRA hazardous
waste, either the soft or hard hammer provisions will
be in effect (see Superfund  LDR Guide  #4).   The
Agency has promulgated treatment standards  for the
following  wastes:

Solvent-Containing, RCRA Hazardous Wastes

    For  solvent-containing RCRA hazardous  wastes
(F001-F005), EPA has promulgated treatment standards
expressed as concentration levels   Unlike most of the
treatment  standards  for  wastes  containing  organic
constituents, the standards for the F001-F005 wastes are
expressed as TCLP concentrations (40 CFR 268.41).

-------
Dioxin-Containing RCRA Hazardous Wastes

    Dioxin-containing  wastes  (F020-F023  and  F026-
F028), include chlorinated dibenzo-p-dioxins (CDDs),
chlorinated dibenzofurans (CDFs), and chlorophenols.
The treatment  standards expressed as concentration
levels are based on incineration of contaminated soil.
Because current analytical methods cannot measure the
concentration levels attainable by the  BOAT, EPA set
the treatment standards at the practical detection limits
(i.e., 1 ppb) for most wastes.  These standards are also
based on a TCLP analysis (40 CFR 268.41).

    Although the  LDR treatment standards for dioxin-
containing wastes are  concentration levels,  the dioxin-
listing rule (50 FR 1978)  requires special management
standards for certain types of units:

•   Incineration in accordance with 40 CFR 264.343
    and 40 CFR  265352;

•   Thermal  treatment  to 99.9999 percent  ORE  in
    accordance with 40 CFR 265.383: or

•   Tank  treatment,  in   accordance  with 40  CFR
    264.200.

    Highlight 2 describes  the LDR restrictions in  effect
for solvent- and  dioxin-containing RCRA hazardous
wastes.
    The  California  list   rule  established  specified
technologies as  the  treatment  standards for  certain
California list wastes.  Specifically, California list PCB
                        and halogenated  organic compound (HOC) wastes
                        (except dilute HOC wastewaters) must be incinerated
                        or  burned  in  high-efficiency  boilers  or  industrial
                        furnaces.  Highlight 3 provides the LDR restrictions in
                        effect for California list wastes.

                        First Third,Wastes

                            The  First Third scheduled wastes  include those
                        listed wastes that  are intrinsically  hazardous or are
                        high-volume  wastes.   EPA  promulgated treatment
                        standards expressed as concentration levels and no land
                        disposal  based on  TWA and TCLP for certain  First
                        Third wastes on August 17,  1988.  First Third wastes
                        that do not have  promulgated treatment standards are
                        restricted  under   the   "soft   hammer"  provisions.
                        Highlight 4 describes the LDR restrictions in effect for
                        certain First  Third wastes for which the Agency has set
                        treatment standards.

                        MINIMUM    TECHNOLOGY   REQUIREMENTS
                        THAT APPLY DURING A  NATIONAL  CAPACITY
                        EXTENSION

                            If during the promulgation of treatment standards
                        the  Agency  determines that  insufficient treatment
                        capacity  exists,  the Agency may  grant  a  national
                        capacity  extension  for a period of  up  to two years.
                        During  the extension  period, if wastes are to be land
                        disposed in surface  impoundments or landfills, the  units
                        must  comply with   the  RCRA Subtitle C minimum
                        technology requirements (i.e., double liner,  leachate
                        collection system, and ground-water monitoring) under
                        RCRA 3005(j)(2) or (j)(4) or the receiving units  must
                        have a retrofitting waiver under RCRA  3004(o)(2)  or
                        3005(j)  to  be considered equivalent  to the minimum
                        technology requirements.
   Highlight 2 - EFFECTIVE DATES AND LDR RESTRICTIONS FOR SOLVENTS  AND DIOXINS
    TYPE OF RESTRICTED
   RCRA HAZARDOUS HASTE
TREATMENT STAHDARD
 EFFECTIVE DATE
                                   LBS RESTRICTION  IB LKt'tX-T
                                    AS OF ROVEMBER  8, 1988
   F001 to F005 (spent
   solvent-containing
   wastes)

   F020 to F023.
   F026 to F028 (dioxin-
   containing wastes )

   Soil and debris
   contaminated with
   sclvent/dioxin
   NOT from CERCLA/RCRA
   corrective actions

   Soil and debris
   contaminated with
   solver.t/dionn
   from CERCLA/RCRA
   corrective action!
November  8, 1986
or November 8, 1988*
November 8,  1988
November 8,  1988
November 8.  1990
                                Treatment standards as  concentration
                                levels  (TCLP)
                                Treatment standards as  concentration
                                levels  (TCLP)
                                Treatment standards as  concentration
                                levels  (TCLP)
                                Minimum technology requirements if
                                disposed of in landfill or surface
                                impoundment
     Soil and debris contamined with solvent-containing wastes were granted a statutory two-year  extension to
  November 8. 1938.  All  other solvent-ccr.taimng wastes became restricted on November 8, 1986.

-------
  Highlight 3 - EFFECTIVE DATES AND LDR  RESTRICTIONS FOR CALIFORNIA LIST WASTESa/
    TYPE OF RESTRICTED
   BCHA HAZARDOUS WASTE
TREATMENT STANDARD
  U'FUJTIVL DATE
LDR RESTRICTIOH  IN UTKLT
 AS OF NOVEMBER  8. 1988
  California
                  PCBs
  Liquid and non-liquid HOCs
  Soil and debris  contaminated
  with HOCs NOT from CERCLAXRCRA..
  corrective actions

  Soil and debris  contaminated
  with HOCs from CERCLA/RCRA
  corrective actions
     July 8.  1987


     November 8.  1988


     July 8.  1989



     November 8.  1990
 Treatment  standards as specified
 technology(ies)

 Treatment  standards as specified
 technology(ies)

 Minimum technology requirements  if
 disposed of  in landfill or surface
 impoundment

 Minimum technology requirements  if
 disposed of  in landfill or surface
 impoundment
  •/  See Superfund LDR Guide #* for soft and hard hamner restrictions in  effect for remaining California lisi
      wastes.
    National capacity extensions for several  types of
wastes currently are in effect under the LDRs.  For
example, sou" and debris from CERCLA and RCRA
corrective actions that are contaminated with solvent,
dioodn,  and  California list wastes  have received an
extension until November 8, 1990. All soil and debris
contaminated with First  Third  wastes for  which  the
                    BDAT is based on solids incineration have received an
                    extension until August   8,  1990.   Land disposal of
                    wastes subject to  national capacity extensions  in units
                    other than surface impoundments and landfills (e.g.,
                    waste piles, land treatment units) is not subject to the
                    minimum  technology requirements  during such an
                    extension.
        Highlight 4 - EFFECTIVE DATES AND LDR RESTRICTIONS FOR CERTAIN FIRST THIRD
  WASTES*7
    TYPE OF RESTRICTED
   RCBA HAZARDOUS HASTE
TREATMENT STANDARD
  EFFECTIVE DATE
LDR RESTRICTION IN
 AS OF NOVEMBER 8. 1988
  Firtt Third wattes (not
  otherwise accounted for)-/
  Soil and debrii contaminated
  with Flrit Third wattes
  for which BDAT it other than
  tolidi  incineration
  Soil and debrit contaminated
  with First Third wattea
  for which BDAT it tolids
  incineration
     August  8.  1988
     August  8.  1988
     August  8.  1990
  Treatment standards as concentration
  levels  (TWA and TCLP) and  (for a few
  waste codes) "no land disposal"
  Treatment standards as concentration
  levels  (TWA and TCLP) and  "no land
  disposal"
  Minimum technology requirements if
  disposed of in landfill or  surface
  impoundment
  —'  S«« Superfund LDR Guide f* for  toft and hard hammer restrictions  in effect for First  Third wastes.

  -'  Except K04B-KOS2 and K071. which were granted a two-y««r extension until August 8.  1990.

-------
         Superfund LDR Guide #4
Complying with the Hammer Restrictions Under
         Land Disposal Restrictions
                                         ~25J

-------
   EPA
                       United States
                       Environmental Protection
                       Agency
                        Office of
                        Solid Waste and
                        Emergency Response
Superfund Publication:
9347.3-O4FS
July 1989
Superfund LDR Guide #4
Complying With the  Hammer
Restrictions  Under  Land
Disposal  Restrictions  (LDRs)
   CERCLA response actions must comply with the Resource Conservation  and Recovery Act  (RCRA) Land
Disposal Restrictions (LDRs) when they are determined to be applicable or relevant and appropriate requirements
(ARARs).  Compliance with the LDRs will involve meeting the LDR  treatment standards, minimum technology
requirements during a national capacity extension, the soft or hard hammer restrictions, or satisfying the requirements
of one of the other LDR compliance options (i.e., Treatability Variance, Equivalent Treatment Method Petition, No
Migration Petition,  or Delisting).   This guide discusses complying with  LDR soft hammer and hard hammer
provisions, which art restrictions on the disposal of hazardous wastes if EPA does not promulgate standards by the
statutory deadlines.  More detailed guidance on Superfund compliance with the LDRs is being prepared by the Office
of Solid Waste and Emergency Response (OSWER).
SOFT HAMMER WASTES

   If the Agency fails to set treatment standards for
First  or  Second Third  wastes by their specified
statutory deadline (August 8, 1988, and June 8, 1989,
respectively), the wastes become restricted under the
soft hammer  provisions until EPA sets a treatment
standard for them, or until May 8, 1990, when the
"hard hammer" provisions will fall.  The soft hammer
provisions specify certain restrictions that may have to
be met before the wastes can be land disposed.  The
hard hammer provisions prohibit ah1 land disposal of
the wastes. Highlight 1 lists F- and K-wastes that are
soft hammer wastes (as of June 8, 1989).
                        Soft Hammer Restrictions

                           The  LDR  soft  hammer provisions prohibit the
                        disposal of wastes in surface impoundment or landfill
                        units unless:

                        (1) The  receiving  unit  meets the RCRA  minimum
                           technology requirements (i.e., the unit must have
                           two or more liners, a leachate collection system,
                           and a ground-water monitoring system) or have an
                           equivalent  RCRA  retrofitting "waiver.   These
                           waivers are described in RCRA §3005(j)(2), which
                           requires that a unit be at least one-quarter of a
                           mile from an underground drinking source, and
Haste
Code
F006
F019
K004
K008
K011
K013
KOU
K017
K021
K022
K025
K029
K031
K035
K036
K041
KQ42
For a
consult
Highlight 1 - F and K SOFT HAMMER WASTES (as of June
Waste
Physical Form
wastewaters
astewaters
astewaters
astewaters
a&tewaters
astewaters
astewaters
a: te*-'aters
astewaters
astewaters
astewaters
astewaters
astewaters
astewaters
astewaters
astewaters
astewaters

and
and
and



and




and
and

and
and
complete listing

nonwastewaters
nonwastewaters
nonwastewaters



nonwastewaters




nonwastewaters
nonwastewaters

nonwastewaters
nonwastewaters
of soft banner waste
Code
K046
K060
K061
K069
K073
K083
K084
K085
K086
K095
K09S
K097
K098
K101
K102
K105
K106
restrictions.
8, 1989)*
Physical Form
wastewaters
wasteweters
3 tewaters
stewaters
stewaters
stewaters
stewaters
stewaters
astewaters
astewaters
astewaters
astewaters
astewaters
and


and
and
and
and
and



and
and
nonwastewaters


nonwastewaters
nonwastewaters
nonwas tewaters
nonwastawaters
nonwastewaters



nonwastewaters
nonwastewaters
nonwastewaters
nonwastewaters
wastewaters
wastewaters
including all P and
and
and
nonwas tewaters
nonwastewaters
U wastes that are restricted.
with t?A Headcruarters .

-------
    RCRA §3005(j)(4), which requires that the unit be
    designed and operated such that there will be no
    migration of hazardous constituents into ground or
    surface water.

    Waivers  granted  to  units  utilizing  aggressive
    biological  treatment  (RCRA   §30050(3))   or
    undergoing corrective action (RCRA §3005(j)(13))
    are not automatically considered equivalent to units
    in compliance  with  the  minimum  technology
    requirements.   However,  they  may  satisfy  the
    §3004(o)(2) equivalency standard on a unit-by-unit
    basis.

(2)  Site managers (OSCs, RPMs) certify that they have
    made a good faith effort to locate and to  contract
    with  treatment and recovery facilities for treatment
    that  is "practically available."  If such treatment is
    "practically available,"  the  manager  must  use  the
    best, practically available treatment (see Highlight
    2) to  treat  the wastes  before  they are  land
    disposed.   If there is no "practically available"
    treatment, the soft hammer wastes may be disposed
    of  without  treatment  in  units  meeting  the
    requirements listed  in  (1).
   Highlight 2  - GUIDE TO "PRACTICALLY
   AVAILABLE" AND "BEST" TREATMENT


   • Pract::ell'- Available -  Site managers may
    consicer ccst in det.errair.ing what, treatments
    are "practically available" according to the
    £oliov.ir.g cost, ratio'

       Cost of treatment, shipment,  and  disposal
            Cost  of  shipment and disposal

       A ratio  of 2  0 or greater  (i  e , the cost
       of treatment  at least doubles the cost of
       disposing of  the waste without treatment)
       generally is  not "practical";

       A ratio  between 1.5 and 2.0 generally  is
       practical unless, on a case-by-case basis,
       the site manager can demonstrate why this
       treatment should not be considered
       practical; and

       A ratio  of 1.5 or less generally is
       practical.

   This cost ratio is only  a Ruidelme for making
   decisions about practically  available
   treatments;  it is not a  rule.

   •Best Treatment - Of the treatment technologies
    that are "practically available," site managers
    •re required to  use the technology that yields
    the greatest environmental benefit.  In
    general, EPA favors recycling/recovery as the
    best method for  treating a waste.  The next
    best general category of treatment IE
    destruction (thermal or chemical), especially
    for organic wastes.  Where neither recovery nor
    destruction is available or appropriate,
    ionjobiliration of the wastes  may be considered
    "best," especially for inorganic wastes.
    Soft hammer wastes disposed of in units other than
surface impoundments or landfills do pot have to meet
the soft hammer  restrictions before land  disposal.
However, these wastes  must comply with  the  LDR
notification requirements and other LDR restrictions,
such as storage prohibition.  (The storage prohibition
restricts the storage of soft hammer wastes unless it is
solely  for  the  purpose of  accumulating  sufficient
quantities to facilitate proper treatment, recovery, or
disposal.)

Soft  Hammer   Requirements    for   Notifications,
Certifications, and Demonstrations

    When soft  hammer  wastes  are land disposed or
treated  off-site, site managers must comply with  the
LDR  notification, certification,  and  demonstration
requirements. When treatment and land disposal occur
on-site.   site  managers   must   only  meet   th'e
demonstration  requirements.   (The notification and
certification    requirements    are    administrative
requirements and  do not have to be met  for on-site
actions.)    The   specific  notification  requirements,
including to whom and  when they must be  sent and
the required language  from  40  CFR Part  268,  are
shown in Highlight 3 for each of these categories.

California List and Soft Hammer Overlap

    Certain soft hammer wastes also may be California
list wastes, in which case they may be subject either to
the California list  or  soft hammer requirements.  If a
waste is restricted by soft hammer and California list
restrictions,   site   managers  should  meet  the  more
stringent standard for the waste.

•   If treatment standards  have been promulgated for
    a California list waste  that is also a soft hammer,
    the California list treatment standard must be met
    for  the waste before it  is land disposed of into any
    type of  unit.   In  this  case,  the  soft hammer
    restrictions  and   notification,  certification,  and
    demonstration requirements  do not apply.

•   If treatment standards  have not been promulgated
    for  a  California  list  waste  that  is  also  a soft
    hammer, and  the \yaste is to be land disposed in
    a surface  impoundment  or   landfill,  one of two
    situations may arise:

    (1) If treatment  is  "practically  available," a  site
        manager must use the "best" treatment to meet
        the soft hammer requirements.

    (2) If treatment  is not "practically available," the
        waste still must, at a minimum, be treated to
        below  the California list prohibition  levels
        before  being land disposed  to  satisfy  the
        California list restrictions.

-------
      Highlight 3 - SOFT HAMMER NOTIFICATION, CERTIFICATION, AND DEMONSTRATION
      REQUIREMENTS
      BEQOXBEMERT
                             SEHT TO
                                             HHEH
                                                               REQUIRED IHFCRMATIOB
      IF LAID DISPOSAL OCCURS III  SURFACE IMFOOHDMEBT OK LANDFILL UNITS
      HOTIFICATION
      (off-site only)
      CERTIFICATION -
      If treatment is
      not practically
      available
      (off-site only)
      CERTIFICATION -
      If treatment ^s_
      practically
      avallable
      (off-site only)
      DEMONSTRATION -
      If no treatment
      is available
      (off-site and
      on-sita)

      DEMONSTRATION -
      If treatment
      J3 available
      (off-site and
      on-site)
Treatment or
disposal
facility
receiving
waste
With each
waste
shipment
Notification that the waste  is  a soft hammer
waste.  Specific information includes.

- EPA hazardous waste number;
- Any applicable prohibitions  (e.g., soft
    hammer provision);
- Manifest number associated with  shipment of
    waste; and
- Waste analysis data, where available
EPA Regional
Administrator
and
Disposal
facility
receiving
waste
At time of
first waste
shipment and
copy with
each waste
shipment
                                      t the
                                       beer.
                                      ace
EPA Regional
Administrator
and
Treatment
facility
receiving
waste
At time of
first waste
shipment and
copy with
each waste
shipment
Certification should  appear  as  follows

"EPA certifies under  penalty of law tha
requirements of 40  CFR  268.8(a)(l) have
and that disposal in  a  landfill or surf
impoundment is the  only practical alter
treatment currently available.  EPA bel
the information submitted  is true, acc-j
ccr.plete   EPA is aware that there are
penalties for submitting false  informat.
including the possibility  of fine and
imprisonment."

Certification should  appear  as  follows
"EPA certifies  under  penalty of law that the
requirements of 40  CFR  268 8(a)(l) have been
met and that the agency has contracted to treat
its waste (or will  otherwise provide treatment;
by the practically  available technology which
yields the greatest environmental benefit, as
indicated in its demonstration.  EPA believes that
the information submitted is true, accurate, and
complete.  EPA  is aware that there are significant
penalties for submitting false information,
including the possibility of fine and
imprisonment."
EPA Regional    At time of       List of facilities and facility officials
Administrator    first waste      contacted, addresses,  telephone numbers, and
                shipment         contact dates.  Also,  a written discussion  of
                                 when treatment or recovery is not  practical
                                 for the waste.

EPA Regional    At time of       List of facilities and facility officials
Administrator    first waste      contacted, addresses,  telephone numbers, and
                shipment         contact dates.  Provide information  on  the
                                 chosen treatment technology selected because
                                 it provides the greatest environmental  benefit
    In  both  cases,  site  managers  must  meet  the
    appropriate soft hammer notification, certification,
    and demonstration requirements.

    If the waste will be land disposed in a  unit other
than a  surface impoundment  or landfill  (e.g.,  waste
pile), the waste must,  at a minimum, be treated  below
the California  list  prohibition level before being land
disposed. The soft hammer restrictions do  not  apply,
                                and a site manager does not have to meet the soft
                                hammer  notification,  certification, and  demonstration
                                requirements.

                                    More  information on  California  list wastes  and
                                their overlap with soft hammer wastes is found in LDR
                                Guide #2.  A step-by-step process to comply with the
                                soft hammer  restrictions is shown in Highlight 4

-------
                     Highlight 4 - IDENTIFYING SOFT HAMMER WASTE RESTRICTIONS
                                                                                             Find another wirt»ca
                                                                                             Impoundment or UndfM unft
                                                                                             ttuft oamplte* w«h tfw iv**mj
                                                                                             technology rvttricfion or
                                                                                             •natwr type ot Uftrf -
                                                                                             unft.
                                         ttM be*t tr«*tm«nt
                                  that U practically avalUb** and
                                  contract wttti that 1»clltty to
                                  Kandl* ttw watt*.
CX«po»« of trw wau* tn
Ih« mtnlmum technology -
oompJUnt unrt.
                                                                           f? n*o**Mry,
                                                                           w«t o«h^ and dtaposaf
                                                                           ractrtcOont <• g_
                                                                           »torag« prohibfoon)
                                                                                               Comp/y «
                              cwttflcatton. and
                              o*fTtonctr ktion
HARD  HAMMER WASTES

    The hard hammer provisions prohibit land disposal
of  restricted  wastes  if  EPA  fails  to  promulgate
treatment  standards  by the  statutory  deadlines  for
solvent- and dioxin-containing and California list wastes
and by May 8, 1990, for aU  of  the  scheduled wastes.
The deadlines  for these wastes are shown in Highlight
5.  At present, the hard hammer provisions  have only
fallen for California list cyanides and metals.  EPA has
also codified statutory prohibition levels  for California
list  corrosive  wastes  and  dilute  HOC  wastewaters.
Codification of the  prohibition levels has  the  same
effect as letting the  hard hammer fall:  land disposal
of these wastes is prohibited when wastes are found in
concentrations above the prohibition levels.

    There  are  only two exceptions to the prohibition
on  land disposal of the hard hammer wastes:  delisting
and a No-Migration Petition.  Delisting is  a  general
option  for  demonstrating  that  a  listed  waste  is no
longer hazardous that is available under RCRA §260.20
and §260.22.  The  process  to obtain  No-Migration
Petitions  is specified in RCRA §268.6.   To obtain  a
Petition, disposal  facilities demonstrate that  there  will
be  no  migration  of  hazardous constituents  from  the
disposal unit or injection zone for as long as the waste
remains hazardous.  This is a rulemaking petition  and
is expected to  require  extensive  documentation.
Highlight 5:  HARD HAMMER DEADLINES
 Waste
Hard Hammer  Ltatutory
     Deadline
Solvent &
dioxin wastes

California
list wastes

CERCLA/RCRA
corrective action
soil and debris
contaminated with
solvent and dioxin
and California
list wastes

Scheduled  wastes
(1st Third, 2nd
Third, and 3rd
Third  wastes)
    November 8,  1986


    July 8, 1987


    November 8,  1988
    May 8, 1990

-------
           Superfund LDR Guide #5
Determining When Land Disposal Restrictions are
    Applicable to CERCLA Response Actions

-------
EPA
                        United States
                        Environmental Protection
                        Agency
                                              Office of
                                              Solid Waste and
                                              Emergency Response
Directive: 9347 3-O5FS
July 1989
                         Superfund LDR Guide #5
                         Determining  When  Land
                         Disposal   Restrictions  (LDRs)
                         Are Applicable  to  CERCLA
                         Response Actions
   CERCLA Section 121(d)(2) specifies that on-site Superfund remedial actions shall attain "other Federal standards,
requirements, criteria, limitations, or more stringent State requirements that are determined to be legally applicable
or relevant and appropriate (ARAR) to the specified circumstances at the site." In addition, the National Contingency
Plan  (NCP)  requires that on-site removal actions attain  ARARs to the extent practicable.  Off-site removal and
remedial actions must comply with legally applicable requirements. This guide outlines the process used to determine
whether the Resource Conservation and Recovery Act (RCRA) land disposal restrictions (LDRs) established under
the Hazardous and Solid Waste Amendments (HSVVA) are "applicable"  to a CERCLA response action.  More detailed
guidance on  Superfund compliance with the LDRs is being prepared  by the Office of Solid Waste and Emergency
Response (OSWER).
   For the  LDRs to be applicable  to a CERCLA
response, the action  must constitute  placement  of a
restricted RCRA hazardous waste.   Therefore, site
managers (OSCs, RPMs) must answer three  separate
questions to  determine if the LDRs are applicable:

    (1)    Does  the  response  action  constitute
          placement?

    (2)    Is the CERCLA  substance being placed
          also a RCRA hazardous waste? and  if so

    (3)    Is the RCRA waste restricted under the
          LDRs?

   Site managers also must determine if the CERCLA
substances are California list wastes, which are  a
distinct category of RCRA hazardous wastes restricted
under  the LDRs (see Superfund LDR Guide  #2).

(1) DOES   THE  RESPONSE  CONSTITUTE
   PLACEMENT?

   The LDRs place specific restrictions (e.g., treatment
of waste to concentration levels) on RCRA hazardous
wastes prior to their placement in land disposal units.
Therefore, a key 
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    For on-site disposal, placement occurs when wastes
are moved from one AOC (or unit) into another AOC
(or unit).  Placement does not occur when wastes are
left in place, or moved within a single AOC. Highlight
2 provides scenarios of when placement does and does
not  occur,  as  defined  in  the  proposed NCP.   The
Agency  is   current  Devaluating  the  definition  of
placement prior to the promulgation of the final NCP,
and  therefore,  these scenarios are subject to change.
       Highlight 2: PLACEMENT

       Placement does occur when wastes are:

       •    Consolidated from different
            AOCs  into a single AOC;

       •    Moved outside of an AOC (for
            treatment or storage, for
            example) and returned to the
            same or a different AOC; or

       •    Excavated from an AOC, placed
            in  a separate unit, such as an
            incinerator or tank that is within
            the AOC. and redeposited into
            the same AOC.

       Placement does not occur when wastes
       are:

       •    Treated in situ;

       •    Capped in place;

       •    Consolidated within the AOC; or

       •    Processed within the AOC (but
            not in a separate  unit,  such as a
            tank) to improve its structural
            stability (e.g., for capping or to
            support heavy machinery).
    In  summary, if placement on-site or off-site does
not  occur,  the  LDRs  are  not  applicable  to  the
Superfund action.

(2) IS  THE  CERCLA  SUBSTANCE   A   RCRA
    HAZARDOUS WASTE?

    Because  a  CERCLA  response  must  constitute
placement of a restricted RCRA hazardous waste for
the LDRs to be applicable, site managers must evaluate
whether the  contaminants  at  the CERCLA site  are
RCRA hazardous wastes. Highlight 3 briefly describes
the two types of RCRA hazardous wastes
characteristic wastes.
-listed and
   Highlight 3: RCRA HAZARDOUS WASTES


   A RCRA solid waste* is hazardous if it is
   listed or exhibits a hazardous characteristic.

   Listed RCRA Hazardous Wastes

         Any waste listed in Subpart D of 40
   CFR 261, including:

        •       F waste codes (Part 261.31)

        •       K waste codes (Part 261.32)

        •       P waste codes (Part 261.33(e))

        •       U waste codes (Part 261.33(f))


   Characteristic  RCRA Hazardous Wastes
       Any waste exhibiting one of the following
   characteristics, as defined in 40  CFR 261:

        •       Ignitability

        •       Corrosivity

        •       Reactivity

        •       Extraction Procedure (EP)
                Toxicity
   * A solid waste is any material that is discarded or
   disposed of (i.e., abandoned, recycled in certain ways, or
   considered inherently waste-like).  The waste may be
   solid, semi-solid, liquid, or a contained gaseous material.
   Exclusions from the definition (e.g., domestic sewage
   sludge) appear in 40 CFR 261.4(a). Exemptions (e.g.,
   household wastes)  arc found in 40 CFR 261.4(b).
   Site managers  are not required to presume that a
CERCLA hazardous substance is  a RCRA hazardous
waste unless  there is affirmative evidence to support
such a finding.  Site managers, therefore, should use
"reasonable efforts" to determine whether  a substance
is  a  RCRA listed  or characteristic waste.  (Current
data collection efforts  during CERCLA removal and

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remedial site investigations should be sufficient for this
purpose.)  For listed hazardous wastes, if manifests  or
labels are  not available,  this evaluation  likely will
require fairly specific information about the waste (e.g.,
source, prior use, process type) that is  "reasonably
ascertainable"  within  the  scope  of  a   Superfund
investigation.  Such information may be obtained from
facility business records or from an examination of the
processes used at the facility. For characteristic wastes,
site managers may rely  on the  results  of the tests
described  in  40   CFR  261.21 -  261.24   for  each
characteristic  or on knowledge  of the properties of the
substance.  Site managers should work with Regional
RCRA staff, Regional Counsel, State RCRA staff, and
Superfund enforcement personnel, as appropriate,  in
making these  determinations.

    In addition to understanding the two categories  of
RCRA hazardous wastes,  site managers will also need
to understand the derived-from rule,  the mixture rule.
and the contained-in interpretation to identify correctly
whether a CERCLA substance is a  RCRA hazardous
waste.    These   three  principles,   as  well  as  an
introduction  to  the  RCRA  delisting  process,  are
described below.

Derived-from  Rule (40 CFR 2613(0(2))

    The derived-from  rule slates that any  soiid waste
derived from  the  treatment, storage, or disposal of a
listed  RCRA hazardous   waste is  itself a  listed
hazardous  waste  (regardless of  the  concentration  of
hazardous   constituents).     For  example,   ash  and
scrubber water from  the incineration of a listed waste
are hazardous wastes on the basis of the derived-from
rule.    Solid  wastes  derived  from  a  characteristic
hazardous  waste   are  hazardous wastes only  if they
exhibit a characteristic.

Mixture Rule (40  CFR 261_3(a)(2))

    Under the mixture rule, when any solid  waste and
a listed hazardous waste are  mixed, the entire mixture
is  a  listed hazardous waste.    For example,  if  a
generator mixes a drum of listed F006 electroplating
waste with a  non-hazardous wastewater (wastewaters
are solid wastes -  see  Highlight 3), the entire mixture
of the F006 and wastewater is a listed hazardous waste.
Mixtures of solid wastes  and characteristic hazardous
wastes are hazardous only if the  mixture exhibits a
characteristic.

Contained-in Interpretation (OSW Memorandum dated
November 13, 1986)

    The  contained-in  interpretation  states  that  any
mixture  of  a  non-solid  waste and  a  RCRA listed
hazardous  waste  must be  managed as  a hazardous
waste as long as the material contains (i.e., is above
health-based  levels) the listed hazardous waste.   For
example, if soil or ground  water (i.e., both non-solid
wastes)  contain  an F001 spent  solvent,  that  soil or
ground water must be  managed as a RCRA h..r.ard.--us
waste, as long as it "contains" the FOOI spent _•>..>;•• ent.

Delisting (40 CFR 260.20 and 22)

    To be exempted from the RCRA ha/:.;-.. .Ui waste
"system," a listed  hazardous  waste, a mix:1.1.-   •[  a listed
and  solid waste,  or  a derived-from  'Aa?;j :nust  be
delisted  (according to  40 CFR  260.20  and  .22).
Characteristic hazardous  wastes  never   need  to  be
delisted,  but  can be treated to no longer exhibit the
characteristic.  A  contained-in waste also does not have
to be delisted; it only has  to "no longer contain" the
hazardous waste.

    If site  managers  determine  that the  hazardous
substance(s) at the site is a RCRA hazardous waste(s),
they should also determine  whether that  RCRA waste
is a  California list waste.  California list  wastes are a
distinct category of RCRA wastes restricted under the
LDRs (see Superfund  LDR Guide  #2).

(3)      IS   THE  RCRA   WASTE  RESTRICTED
        UNDER  THE LDRs?

    If a site manager determines that a CERCLA waste
is a  RCRA hazardous waste, this waste  also must be
restricted   for   the  LDRs  to   be  an  applicable
requirement.    A RCRA  hazardous waste becomes a
restricted waste  on its HSWA statutory deadline or
sooner if the  Agency  promulgates  a standard before
the deadline.   Because the LDRs are being phased in
over a period of time (see Highlight 4). site managers
may need to  determine what type  of restriction  is in

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remedial site investigations should be sufficient for this
purpose.) For listed hazardous wastes, if manifests or
labels  are not  available, this evaluation  likely will
require fairly specific information about the waste (e.g.,
source, prior use,  process  type)  that is "reasonably
ascertainable"  within  the  scope  of  a  Superfund
investigation. Such information may be obtained from
facility business records or from an examination  of the
processes used at the facility.  For characteristic wastes,
site managers may  rely  on the  results of the tests
described in  40  CFR   261.21  - 261.24  for   each
characteristic or  on knowledge of the properties  of the
substance.  Site  managers should work with Regional
RCRA staff, Regional Counsel, State RCRA staff, and
Superfund enforcement personnel, as  appropriate, in
making these determinations.

    In  addition to understanding the two categories of
RCRA hazardous wastes,  site  managers will also need
to understand the derived-from rule, the  mixture rule,
and the coniained-in interpretation to identify correctly
whether  a CERCLA substance is  a RCRA hazardous
waste     These  three  principles,  as  well  as  an
introduction  to  th;  RCR-X  delisiing  process,  are
described below.

Derived-from Rule  (40 CFR 261_?(c)(2))

    Ttv.  j. r;\ed-from rule states  that  any solid  waste
deri\.. ;:,>m ihe treatment,  storage,  or  disposal of a
listed  RCRA  hazardous waste   is  itself  a  listed
hazardous waste  (regardless of the concentration of
ha/arcK.us  constituents).    For   example,  ash  and
scrubber water  from the incineration of a listed  waste
are hazardous wastes on the basis  of the derived-from
rule.    Solid  wastes  derived  from  a  characteristic
hazardous waste are  hazardous  wastes only if they
exhibit a characteristic.

Mixture Rule (40 CFR 2613(a)(2))

    Under the mixture rule, when  any solid  waste and
a listed hazardous waste  are mixed, the entire mixture
is  a   listed  hazardous waste.    For  example, if a
generator mixes a drum  of listed FOQ6  electroplating
waste  with a non-hazardous wastewater (wastewaters
are solid wastes -  see Highlight 3), the entire mixture
of the F006 and wastewater is a listed hazardous  waste.
Mixtures of solid wastes and  characteristic  hazardous
wastes are hazardous  only if the mixture  exhibits  a
characteristic.

Contained-in Interpretation (OSW Memorandum dated
November 13, 1986)

    The  contained-in  interpretation  states that  any
mixture  of  a non-solid waste  and  a RCRA  listed
hazardous waste must be managed  as a  hazardous
waste as long as the material contains (i.e., is  above
health-based levels) the listed hazardous waste.   For
example, if  soil  or  ground water (i.e., both non-solid
wastes) contain  an  F001  spent  solvent,  that soil or
ground water must be managed as a RCRA hazardous
waste, as long as it "contains" the F001 spent solvent.

Delisting (40 CFR 260.20 and 22)

    To be exempted from the RCRA hazardous waste
"system," a listed hazardous waste, a mixture of a listed
and solid waste, or  a derived-from  waste must  be
delisted  (according to  40  CFR  260.20  and  .22).
Characteristic hazardous  wastes  ne\e:  need   to  be
delisted,  but can be treated  to  no longer exhibit the
characteristic. A contained-in waste also does not have
to be  delisted; it only has to" "no longer  contain" the
hazardous waste.

    If  site managers  determine that the  hazardous
substance(s) at the site is a RCRA hazardous waste(s),
they should  also determine whether that RCRA waste
is a California list waste.  California  list wastes are a
distinct category of RCRA wastes restricted under the
LDRs (see Superfund  LDR Guide #2).

(3)     IS   THE   RCRA  WASTE  RESTRICTED
        UNDER THE LDRs?

    If a site manager determines that a CERCLA waste
is a RCRA hazardous waste, this waste also must be
restricted  for  the  LDRs   to  be  an  applicable
requirement.   A RCRA hazardous waste becomes a
restricted waste on its HSWA statutory deadline or
sooner if the Agency  promulgates a  standard before
the deadline.  Because the LDRs are being phased in
over a period of time (see Highlight 4), site managers
may need to  determine what type of restriction is in

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   Highlight 4: LDR STATUTORY DEADLINES
         Waste
 Statutory Deadline
   Spent Solvent and Dioxin-
   Contaimng Wastes
   California List Wastes
   First Third Wastes
   Spent Solvent. Dioxm-
   Conta:nmg, and California
   List Soil and Debns From
   CERCLA/RCRA Corrective
   Actions
   Second Third Wastes
   Third Third Wastes
   Newly Identified
   Wastes
 November 8, 1986



July 8, 1987


 August 8. 1988


 November 8. 1988
  June S. 1989
 May 8,  1990
Within 6 months of
 identification as a
hazardous waste
effect at the time placement is to occur.  For example,
if the RCRA  hazardous wastes at a site are currently
under a national capacity extension when the CERCLA
decision document  is  signed,  site  managers  should
evaluate whether the response action will be completed
before  the  extension  expires.    If  these  wastes are
disposed of in surface impoundments or  landfills prior
to the expiration of the extension, the receiving unit
would have to meet minimum technology requirements,
but the wastes would not have to be treated to meet
the LDR treatment standards.

APPLICABILITY DETERMINATIONS

    If the site manager  determines that the LDRs are
applicable  to  the  CERCLA response  based  on the
previous three questions, the site manager must: (1)
comply with the LDR restriction in effect, (2) comply
with  the  LDRs  by  choosing  one  of  the  LDR
compliance  options   (e.g., Treatability Variance,  No
Migration Petition),  or (3) invoke  an ARAR waiver
(available only for on-site actions).   If the LDRs  are
determined  not to  be applicable,  then,  for on-site
actions only, the site  manager should determine if  the
LDRs are relevant and appropriate. The process  for
determining whether the  LDRs are  applicable  to a
CERCLA action is summarized in  Highlight  5.
                                                              Highlight 5 - DETERMINING WHEN LDRS
                                                              ARE APPLICABLE REQUIREMENTS
                                     LDRs are not
                                      appl/caO/e
                                     determine if
                                       they  are
                                     relevant and
                                     appropriate
                                       (on-3ite
                                    response only|-
                                    LDRs are applicable
                                       requirement*

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    Superfund LDR Guide #6A (2nd Edition)
Obtaining a Soil and Debris Treatability Variance
             for Remedial Actions

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                         United States
                         Environmental Protection
                         Agency
                         Office of
                         Solid Waste and
                         Emergency Response
Superfund Publication:
9347.3-06FS
September 1990
dEPA
Superfund LDR Guide #6A (2nd Edition)
Obtaining  a  Soil and  Debris
Treatability Variance  for
Remedial  Actions
Office of Emergency and Remedial Response
Hazardous Site Control Division
                                                   Quick Reference Fact Sheet
         The Office of Emergency and Remedial Response (OERR) issued a series of Superfund LDR Guides
    in July and December of 1989.  This series included: Overview of RCRA Land Disposal Restrictions (LDRs)
    (Superfund LDR Guide #1); Complying with the California List Restrictions (Superfund LDR Guide #2);
    Treatment Standards and Minimum Technology Requirements Under the LDRs (Superfund LDR Guide #3);
    Complying with the Hammer Restrictions Under the LDRs (Superfund LDR Guide #4); Determining When the
    LDRs are Applicable to CERCLA Responses (Superfund LDR Guide #5); Obtaining a  Soil and  Debris
    Treatability Variance for Remedial (Superfund LDR Guide #6A) and Removal (Superfund LDR Guide #6B)
    Actions; and Determining When the LDRs are Relevant and Appropriate to CERCLA Responses (Superfund LDR
    Guide #7). Since the issuance of these guides, the Environmental Protection Agency, with cooperation from
    outside parties (e.g., environmental groups, industry representatives), has conducted an analysis of the potential
    impacts associated with applying the LDR treatment standards to Superfund and RCRA Corrective Action
    cleanups. As a result of these analyses, it was decided that the Agency will promulgate a third set of treatment
    standards (in addition to the wastewater and nonwastewater categories currently in effect) specifically for soil
    and debris wastes.  In the interim, there is the presumption that CERCLA response actions involving the
    placement of soil and debris contaminated with RCRA restricted wastes will utilize a Treatability Variance
    to comply with the LDRs and that, under these variances, the treatment levels outlined in Superfund LDR
    Guide #6A will serve as alternative "treatment standards." This guide (a revision to the original Superfund
    LDR Guide #6A) has been prepared to outline the process for obtaining and complying with a Treatability
    Variance for soil and debris that are contaminated with RCRA hazardous  wastes until such time that the
    Agency promulgates treatment standards for soil and debris.
    BASIS FOR A TREATABILITY VARIANCE

       When  promulgating  the  LDR  treatment
    standards, the Agency recognized that treatment of
    wastes to the LDR treatment standards would not
    always be possible or appropriate. In addition, the
    Agency recognized the importance of ensuring that
    the LDRs do  not unnecessarily restrict the
    development and use of alternative and innovative
    treatment technologies for remediating hazardous
    waste  sites.  Therefore, a Treatability Variance
    process (40 CFR §268.44) is available to comply
    with the LDRs  when a Superfund waste differs
    significantly from the waste used 'to set the LDR
    treatment standard such that:

    •     The LDR standard cannot be met; or
    •     The best demonstrated available technology
          (BDAT)  used  to  set  the standard  is
          inappropriate for the waste.

          Superfund site managers  (OSCs, RPMs)
    should seek a Treatability Variance to comply with
    the LDRs when managing restricted soil and debris
                              Highlight 1: SOIL AND DEBRIS

                              Soil.  Soil is defined as materials that are
                              primarily of geologic origin such as sand,
                              silt, loam, or clay, that are indigenous to
                              the natural geologic environment at or
                              near the CERCLA site.  (In many cases,
                              soil is mixed with liquids, sludges, and/or
                              debris.)

                              Debris.  Debris is defined as materials
                              that are primarily non-geologic in origin,
                              such  as grass, trees, stumps, and man-
                              made materials such as concrete, clothing,
                              partially buried whole or empty drums,
                              capacitors, and other synthetic manufac-
                              tured materials, such as liners. (It does
                              not include synthetic organic chemicals,
                              but may include materials contaminated
                              with these chemicals).
                                                                        Printed on Recycled Paper

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wastes  (see  Highlight  1)  because  the  LDR
treatment standards  are based on  treating  less
complex matrices  of industrial process wastes
(except  for the dioxin standards, which are based
on  treating contaminated  soil).  A Treatability
Variance does not remove the requirement to treat
restricted soil and debris wastes.  Rather, under a
Treatability Variance, alternate treatment levels
based on data from  actual treatment of soil, or
best management practices for debris, become the
"treatment  standard"  that must be met.

COMPLYING   WITH   A   TREATABILITY
VARIANCE FOR SOIL AND DEBRIS WASTES

Soil Wastes

   Once site managers have identified the RCRA
waste codes present at the site, the next step is to
identify the BDAT constituents of those RCRA
waste codes and to divide these constituents into
one of the structural/functional groups shown in
column 1 of Highlight 2.  After dividing the BDAT
constituents  into   their   respective
structural/functional groups,  the next step is to
compare the concentration of each  constituent
with the threshold concentration (see column 3 of
Highlight 2)  and  to  select  the  appropriate
concentration level or percent reduction range.  If
the concentration of the restricted constituent  is
less than the threshold  concentration,  the waste
should  be  treated to within  the  concentration
range.  If the waste concentration is above the
threshold, the waste should be treated to reduce
the concentration  of the waste  to  within the
specified percent reduction  range.   Once the
appropriate treatment range is selected, the third
step is to identify and select a specific technology
                  Highlight 2: ALTERNATE TREATABHJTY VARIANCE LEVELS AND
                     TECHNOLOGIES FOR STRUCTURAL/FUNCTIONAL GROUPS
Structural
Functional
Groups
OROANiCS
Halogenated
Non-Polar
Aromatics
Oioxins
RGBs
Herbicides
Halogenated
Phenols
Halogenated
Aliphatics
Halogenated
Cyclics
Nitrated
Aromatics
Heterocyclics
Polynuclear
Aromatics
Other Polar
Organics
INORGANICS
Antimony
Barium


Cadmium
Mercury
Concentration
Range
(ppm)
Totat Waste
Analysis^* 	
0.5 - 10
0.00001 - 0.05
0.1 - 10
0.002 - 0.02
0.5-40
0.5-2
0.5-20
2.5 - 10
05-20
0.5 - 20
05-10
TCLP
0.1 - 0.2
0.30 - 1
01-40
0.5-6
05-1
0005
02-20
0.2-2
0.1 - 3
0.0002 - 0.008
Threshold
Concentration
(ppm)
Total Waste
Analysis/*
100
0.5
100
02
400
40
200
10,000
200
400
100
TCLP
2
400
I 120
20
005
200
40
300
0.08
Percent
Reduction
Range

90-99.9
90-99.9
90-99.9
90-99.9
90-99
95 - 99.9
90-99.9
99.9 - 99.99
90 - 99.9
95-99
"90-99

90-99
QQ - 99 9
90-99
95 - 99.9
95 - 99.9
90-99
90-99
95-999
90-99
Technologies that achieved
recommended effluent
concentration guidance**

Biological Treatment. Low Temp. Stripping,
Soil Washing, Thermal Destruction
Dechlonnation, Soil Washing. Thermal Destruction
Biological Treatment. Dechlorination, Soil Washing.
Thermal Destruction
Thermal Destruction
Biological Treatment, Low Temp Stripping,
Soil Washing, Thermal Destruction
Biological Treatment, Low Temp. Stripping. Soil Washing,
Thermal Destruction
Thermal Destruction
Biological Treatment Soil Washing
Thermal Destruction
Biological Treatment, Low Temp. Stripping, Soil Washing.
Thermal Destruction
Biological Treatment, Low Temp. Stripping. Soil Washing,
Thermal Destruction
Biological Treatment, Low Temp Stripping. Soil Washing,
Thermal Destruction

Immobilization
Immobilization Soil Washing
Immobilization
Immobilization, Soil Washing
Immobilization. Soil Washing
Immobilization
Immobilization
Immobilization. Soil Washing
Immobilization Soil Washing
Immobilization
    TCLP also may be used when evaJvatrng waste with relatively low levels of organs that have been treated through an immobilization
    process.
    Other technologies may be used if Mobility studies or other ^formation ,nd,fates that they can achieve the necessary concentrate or
    percent-reduction ranqe

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that can achieve the necessary concentration or
percent reduction.  Column 5 of Highlight 2 lists
technologies that (based on existing performance
data)  can  attain  the  alternative Treatability
Variance levels.

   During the implementation of  the  selected
treatment technology, periodic analysis using the
appropriate  testing  procedure (i.e., total waste
analysis for organics and TCLP for inorganics) will
be  required to  ensure  the  alternate  treatment
levels for the BDAT constituents requiring control
are being attained and thus can be land disposed
without further treatment.

   Because   of   the  variable  and  uncertain
characteristics associated with unexcavated wastes,
from which only sampling  data  are available,
treatment systems generally should be designed to
achieve the more stringent end of the treatment
range  (e.g., 0.5  for  chromium, see column 2 of
Highlight 2) to ensure that  the treatment residuals
from the most contaminated portions of the waste
fall below the "no exceedance" levels (e.g., 6.0 ppm
for chromium).   Should data indicate that the
treatment  levels  set  through  the Treatability
Variance  are not being attained (i.e., treatment
residuals  are greater than the "no exceedance"
level), site  managers should consult  with EPA
Headquarters.
Debris Wastes

 Site managers should use the same process for
obtaining a Treatability Variance described above
for types of debris that are able to be treated to
the alternate treatment levels (e.g., paper, plastic).
However, for most types of debris (e.g., concrete,
steel pipes), which generally cannot be treated, site
managers should  use best management practices.
Depending on the specific characteristics of the
debris,   these   practices   may  include
decontamination   (e.g.,    triple    rinsing)    or
destruction.

OBTAINING A TREATABILITY VARIANCE FOR
SOUL AND DEBRIS WASTES

   Once it is determined that a CERCLA waste is
a soil or debris,  and that compliance with  the
LDRs will be required  (i.e., the wastes contain
restricted RCRA waste(s)  and  placement  will
occur), site managers should initiate the process of
obtaining a  Variance.  For remedial  actions  this
will involve: (1) documenting the intent to comply
with the LDRs through a Treatability Variance in
the  FS  Report:  (2)  announcing  the  intent to
comply through  a Treatability Variance in  the
Proposed Plan; and (3) granting of the Treatability
Variance by the  Regional Administrator or  the
  Highlight 3 - INFORMATION TO BE INCLUDED IN AN RI/FS TO DOCUMENT THE INTENT TO COMPLY WITH
 THE LDRs THROUGH A TREATABILITY VARIANCE FOR ON-SITE AND OFF-SITE CERCLA RESPONSE ACTIONS
   INVOLVING THE PLACEMENT OF SOIL AND DEBRIS CONTAMINATED WITH RESTRICTED RCRA WASTES


QN-SITE

•     Description of the soil or debris waste and the source of the contamination;

•     Description of the Proposed Action (e.g., "excavation, treatment, and off-site disposal");

•     Intent to comply with the LDRs through a Treatability Variance; and

•     For each alternative using a Treatability Variance to  comply, the specific treatment level range to be achieved (see
      Highlight 2 to determine these treatment levels).

OFF-SITE

   For off-site Treatability Variances, the information above should be extracted from the RI/FS report and combined with the
following information in a separate document:*

•     Petitioner's name and address and identification of an authorized contact person (if different); and

•     Statement of petitioner's interest  in obtaining a Treatability Variance.
' This document may be prepared after the ROD is signed (and Treatability Variance granted) but will need to be compiled
prior to the first shipment of wastes (or treatment residuals) to the receiving treatment or disposal facility.

-------
LDRs as an ARAR and indicate that a Treatability
Variance is being used to comply.

   Under some circumstances, the need to obtain
a Treatability Variance may not be evident until
after a ROD is signed.  For example,  previously
undiscovered evidence may be obtained during a
remedial  design/remedial action (RD/RA) that the
CERCLA waste contains a RCRA restricted waste
and  the  LDRs  are  then  determined  to   be
applicable.   In such situations, a  site manager
would  need  to  prepare  an  explanation   of
significant differences (ESD) from the  ROD and
make it available to the public to explain the need
for a Treatability  Variance.  In addition, unlike
other ESDs that do not require public comment
under  CERCLA  section  117(c),  if  the ESD
involves  granting a Treatability Variance,   an
opportunity for public comment would be required
to  fulfill  the  public  notice  and  comment
requirements for a Treatability Variance under 40
CFR §268.44.
LDRs IN SUPERFUND ACTIONS

   Because of the important role the LDRs may
play in Superfund cleanups, site managers need to
incorporate  early  in  the RI/FS  the necessary
investigative  and  analytical  procedures   to
determine if the LDRs are applicable for remedial
alternatives that involve the "placement" of wastes.
                                   When the LDRs  are  applicable,  site managers
                                   should  determine  if  the treatment  processes
                                   associated with the alternatives can attain either
                                   the  LDR treatment standards or the alternate
                                   levels  that  would  be  established  under  a
                                   Treatability Variance.

                                     Site managers  must first evaluate whether
                                   restricted RCRA waste codes are  present at the
                                   site,  identify  the  BOAT constituents requiring
                                   control, and compare the BDAT constituents with
                                   the  Superfund primary constituents of concern
                                   from the baseline risk assessment.   This process
                                   identifies  all  of   the  constituents  for  which
                                   remediation may be required.  Once the viable
                                   alternatives are identified in the FS, site managers
                                   should evaluate those involving the treatment and
                                   placement of restricted RCRA hazardous wastes to
                                   ensure their respective technology process(es) will
                                   attain the appropriate treatment levels (i.e., either
                                   LDR treatment standard or Treatability Variance
                                   alternate  treatment levels for soil and  debris
                                   containing restricted RCRA hazardous  wastes)
                                   and,   in  accordance   with   Superfund  goals,
                                   reductions of 90 percent or greater for Superfund
                                   primary contaminants of concern.  The results of
                                   these evaluations are documented in the Proposed
                                   Plan and ROD. An illustration of  the integration
                                   of LDRs and  Superfund is shown in Highlight 6.
                                   An example of the process for complying with a
                                   Treatability Variance for contaminated soil and
                                   debris is presented  in Highlight 7.
                              Highlight 6:  LDRs IN THE RI/FS PROCESS
   Analyst*
Evahiata
naturaand
axtantof ifta
contain (ration
                                primary
                                contaminant*
Davatop waata
ffMM^QWMOt
aNamattvaa tor
thaaHa


CVMUfltB wMCnOTlVMt (MMCminA if
thay will raault tn •tgnMeant
reduction* of toxtetty, mobility, or
volumaol primary eontammanta


Salact
ramady
In ROD
   ,,,'UW
  E«ilu*«on*
r»«trtctad RCRA
nazmrdoua


OOOOOTI wtth BDAT
oonM

m
Evaluate
dial attarnattva
Invotvaa


1
Identity attarnattva
traatmant lavaia
that mu«t ba mat
undar TraatabUKy
Vananoa
TraatebUKy
Vartanoa
grantadwnan
ROD I* algnad

-------
Assistant   Administrator/OSWER   when   the
ROD is signed.

FS Report

   The  FS Report should contain the necessary
information (see  Highlight 3)  to document  the
intent to comply with the LDRs for soil and debris
through a Treatability Variance. In the Detailed
Analysis of Alternatives chapter of the FS Report,
the discussion should specify the treatment level
range(s) that the treatment  technology would
attain for each waste constituent restricted under
the  LDRs,  as well  as  the  Superfund  primary
contaminants  of  concern identified  during  the
baseline risk assessment.  In  addition, under the
Comparative Analysis of Alternatives section, when
discussing the "Compliance with ARARs Criteria,"
site  managers should indicate which alternatives
will  comply with the LDRs through the use of a
Treatability Variance.

Proposed  Plan

   The intent to comply with the LDRs through a
Treatability Variance for a particular alternative
should  be clearly stated  in  the Description of
Alternatives  section of  the   Proposed  Plan.
Because the Proposed Plan solicits public comment
on all of the alternatives  and not just the preferred
  Highlight  4 -  SAMPLE
  THE PROPOSED PLAN
LANGUAGE  FOR
  Description of Alternatives section

  This alternative  will comply with  the  LDRs
  through  a  Treatability Variance under 40 CFR
  268.44.  This  Variance will result in the  use of
  [specify  technology]  to  attain  the Agency's
  interim  "treatment  levels/ranges"  for  the
  contaminated soil  at  the  site (see  Detailed
  Analysis of Alternatives Chapter  of the FS
  Report for the specific treatment levels for each
  constituent).

  Evaluation of  Alternatives  section,  under
  "Compliance with ARARs"

  The LDRs are ARARs for (Enter  number] of
  [Enter total  number of alternatives] remedial
  alternatives being considered.  [Enter number] of
  the  [Enter   total   number  of  alternatives]
  alternatives  would  comply  with  the  LDRs
  through  a  Treatability Variance.
                                Highlight 5:  SAMPLE LANGUAGE
                                FOR A RECORD OF DECISION

                                Description of Alternatives section:

                                This  alternative  will comply with the
                                LDRs through a Treatability Variance
                                for the contaminated soil  and debris.
                                The treatment level  range  established
                                through  a  Treatability Variance  that
                                [Enter technology]  will attain for each
                                constituent  as  determined  by  the
                                indicated analyses are [Example shown
                                below]:

                                Barium         0.1  • 40ppm (TCLP)

                                Mercury   0.0002 - 0.008 ppm (TCLP)

                                Vanadium      0.2 - 20ppm (TCLP)

                                TCE       95-99.9% reduction (TWA)

                                Cresols      90-99% reduction (TWA)
option, the intent to obtain a Treatability Variance
should be identified for every alternative for which
a Variance would be used. This opportunity for
public comment on the Proposed Plan fulfills the
requirements for public notice and comment (off-
site actions only) on the Treatability Variance as
required in RCRA §268.44.  Sample language for
the Proposed Plan  is provided in Highlight 4.

Record  of Decision

   A Treatability Variance is granted and becomes
effective when the  Record of Decision (ROD)  is
signed by the Regional Administrator or Assistant
Administrator/OSWER.    In the Description of
Alternatives section, as part  of  the discussion of
major applicable requirements associated with each
remedial option, site managers  should include a
statement (as was  done in the FS report)  that a
Treatability Variance will be  used to comply with
the LDRs, and list the treatment level range(s)
that the selected technology will attain for each
constituent.   Sample  language  for the ROD  is
provided in Highlight 5.

   In the Comparative  Analysis section,  under
"Compliance with ARARs," site managers should
indicate which of the alternatives will comply with
the LDRs through a Treatability Variance.  Under
the Statutory Determination section (Compliance
with ARARs), site managers should identify the

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                    Highlight 7: IDENTIFICATION OF TREATMENT LEVELS FOR A TREATABOJTV VARIANCE

As part of the RI, it has been determined that soils m one location at a site contain F006 wastes and cresols (which site records indicate were an
F004 waste). Arsenic also was found in soils at a separate location. The baseline risk assessment identified cadmium, chromium, lead, and arsenic
as primary contaminants of concern. The concentration range of all of the constituents found at the »ite included:
Constituent
Cadmium
Chromium
Cyanides
Lead
Total Concentration
2,270 - 16,200
3,160- 4,390
80- 150
500- 625
TCLP
(me/1)
120 - 146
30- 56
1 - 16
2- 1ZS
Constituent
Nickel
Silver
Cresols
Arsenic
Total Concentration
(me/kg)
100-140
1- 3
50-600
800-1,900
TCLP
fme/r>
1-6.5
._
.25-4
3-9
    Four remedial alternatives are being considered:  (1) Low temperature thermal stripping of soil contaminated with cresols followed  by
immobilization of the ash; (2) Immobilization of the soil in a mobile unit; (3) In-situ immobilization; and (4) Capping of wastes. Each of these
alternatives must be evaluated to determine if they will result in significant reduction of the toxicity, mobility, or volume of the waste; whether
"placement" occurs; and, if "placement" occurs, whether the treatment will attain the alternative treatment levels established through a Treatability
Variance for the BOAT constituents requiring control.

STEP 1:  IDENTIFY THE RESTRICTED CONSTITUENTS
•   Because F006  and  F004 wastes have been identified in soils at the site, the Superfund site manager must meet alternate treatment levels
    established through a Treatability Variance for the BDAT constituents. These constituents are: Cadmium, Chromium, Lead, Nickel, Stiver,
    and Cyanide for F006 and Cresols for F004.

    AND DIVIDE THE CONSTITUENTS INTO THEIR STRUCTURAL/FUNCTIONAL GROUPS (see Highlight 2):
•   All of the F006 constituents are in the Inorganics structural/functional group.
•   Cresols are in the Other Polar Organic Compounds structural/functional group.
•   In accordance with program goals, the preferred remedy also should result in the effective reduction (i.e., at least 90 percent) of all primary
    constituents  of concern  (i.e., Cadmium, Chromium, Lead, and Arsenic).

STEP 2:  COMPARE THE CONCENTRATION THRESHOLD FOUND IN HIGHLIGHT 2 TO THE CONCENTRATIONS FOUND AT THE SITE
         AND CHOOSE EITHER THE CONCENTRATION LEVEL RANGE OR PERCENT REDUCTION RANGE FOR EACH RESTRICTED
         CONSTITUENT.
Site Threshold
Constituent Concentration Concentration
Cadmium
Chromium
Lead
Nickel
Cresols (Total)
Cresols (TCLP)
Arsenic
120-
30 -
2-
1 -
50
.25
3
146 ppm :
56 ppm <
12.5 ppm «
6.5 ppm
- 600 ppm :
4 ppm
9 ppm
> 40
: 120
: 300
c 20
> 100

< 10
ppm
ppm
ppm
ppm
ppm

ppm
Appropriate Range Range to be achieved
Concentration Percent Reduction (compliance analysis)

X
X
X
X

X
X 95-99.9 Percent
0.5 -6
0.1 -3
0.5-1
90-99 Percent
X
0.27 - 1
Reduction (TCLP)
ppm (TCLP)
ppm (TCLP)
ppm (TCLP)
Reduction (TCLP)

ppm (TCLP)
 STEP 3: IDENTIFY TREATMENT TECHNOLOGIES THAT MEET THE TREATMENT RANGES.
 •  Highlight 2 lists the technologies that achieved the alternate treatment levels for each structural/functional group.
 •  Because cresols  are present in relatively low concentrations (assumed for the purposes of this example), a TCLP may be used to determine if
    immobilization results in a sufficient reduction of mobility of this restricted RCRA hazardous waste. (Measures to address any volatilization of
    organics during immobilization processes will be necessary.)
 •  Based on the results of treatability teats conducted at the site, immobilization also will result in the effective reduction in leachability (i.e., at least
    90 percent) of arsenic, a Superfund primary contaminant of concern.
Effective Reduction
Alternative of Toidclty, Mobility, Volume?
1. Low temperature stripping/
Immobilization
2. Immobilization in mobile unit
3. In-situ immobilization
4. Capping in Place

Yes
Yes
Yes (Mobility)
No
"Placement?"

Yes
Yes
No(LDRs
No(LDRs
Meet



not ARARs)
not ARARs)
TrealabUity Variance
Alternate Levels?

Yes
Yes
—
*~"
 STEP 4:  PREPARE PROPOSED PLAN, OBTAIN COMMENTS
 •   Highlight 4 provides sample language for the Proposed Plan that announces the intent to comply with the LDRs through a Treatability Variance.

 STEP 5:  PREPARE ROD
  •  Highlight 5 provides sample language for a ROD signed for a site that will comply with the LDRs through a Treatabtlity Variance.

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           Superfund LDR Guide #6B
Obtaining a Soil and Debris Treatability Variance for
                Removal Actions

-------
                         United States
                         Environmental Protection
                         Agency
                         Office of
                         Solid Waste and
                         Emergency Response
                          Superfund Publication:
                          9347.3-O6BFS
                          September 1990
&EPA
Superfund LDR Guide  #6B
Obtaining  a  Soil  and  Debris
Treatability Variance  for
Removal Actions
Office of Emergency and Remedial Response
Hazardous Site Control Division
                                                   Quick Reference Fact Sheet
          The Office of Emergency and Remedial Response (OERR) issued a series of Superfund LDR Guides
   in July and December of 1989. This series included: Overview ofRCRA Land Disposal Restrictions (LDRs)
   (Superfund LDR Guide #1); Complying with the California List Restrictions (Superfund LDR Guide #2);
   Treatment Standards and Minimum Technology Requirements Under the LDRs (Superfund LDR Guide #3);
   Complying with the Hammer Restrictions Under the LDRs (Superfund LDR  Guide #4); Determining When the
   LDRs are Applicable  to CERCLA Responses (Superfund LDR Guide #5); Obtaining a  Soil and  Debris
   Treatability Variance for Remedial (Superfund LDR Guide #6A) and Removal (Superfund LDR Guide #6B)
   Actions; and Determining When the LDRs are Relevant and Appropriate to CERCLA Responses (Superfund LDR
   Guide #7). Since the issuance of these guides, the Environmental Protection Agency, with cooperation from
   outside parties (e.g., environmental groups, industry representatives), has conducted an analysis of the potential
   impacts associated with applying the LDR treatment standards to Superfund and RCRA Corrective Action
   cleanups. As a result of these analyses, it was decided that the Agency will promulgate a third set of treatment
   standards (in addition to the wastewater and nonwastewater categories currently in effect) specifically for soil
   and debris wastes.  In the interim, there is the presumption that CERCLA response actions involving the
   placement of soil and debris contaminated with RCRA restricted wastes will utilize a Treatability Variance
   to comply with the  LDRs and that, under these variances, the treatment levels outlined in  Superfund LDR
   Guide #6B will serve as alternative "treatment standards" for removal actions. This guide has been prepared
   to outline the process for obtaining and complying with a Treatability Variance for soil and debris that are
   contaminated with RCRA hazardous wastes until such time that the Agency promulgates treatment standards
   for soil and debris.
   BASIS FOR A TREATABILITY VARIANCE

     When  promulgating  the  LDR   treatment
   standards, the Agency recognized that treatment of
   wastes to the treatment standards established using
   the  best  demonstrated  available  technology
   (BOAT)  would not  always  be possible  or
   appropriate (RCRA §268.44).  In addition, the
   Agency recognized the importance of ensuring that
   the  LDRs  do  not  unnecessarily restrict  the
   development and use of alternative and innovative
   treatment technologies for remediating hazardous
   waste sites. Therefore,  a Treatability Variance
   process is available to comply with the LDRs when
   a Superfund waste  differs significantly from the
   waste used to set the LDR treatment standard such
   that:
          The LDR standard cannot be met; or
          The BDAT used to  set the standard
          inappropriate for the waste.
                 is
Highlight 1: SOIL AND DEBRIS

Soil.  Soil  is defined as materials that are
primarily of geologic origin such as sand, silt,
loam, or clay,  that are  indigenous  to the
natural geologic environment at or near the
CERCLA site.  (In many cases, soil is mixed
with liquids, sludges, and/or debris.)

Debris.  Debris is defined as materials that
are primarily non-geologic in origin, such as
grass, trees, stumps, and man-made materials
such as concrete, clothing, partially  buried
whole or empty drums, capacitors, and other
synthetic manufactured  materials, such as
liners. (It does  not include synthetic organic
chemicals,  but  may   include  materials
contaminated with these chemicals).
                                                                      Printed on Recycled Paper

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  During  on-site   removal  actions,  on-scene
coordinators (OSCs) must comply with the LDRs
if the LDRs are ARARs and compliance with the
LDRs is practicable. For removals involving off-
site deposition, OSCs must simply determine if the
LDRs are applicable.  When managing restricted
soil  and  debris wastes  (see Highlight 1),  it is
presumed  that OSCs will comply with the LDRs
through a Treatability Variance because, except for
the dioxin standards which are based on treating
contaminated soil, the LDR treatment standards
are based on treating less  complex matrices of
industrial process wastes. A Treatability Variance
does  not remove  the  requirement  to   treat
restricted soil and debris wastes.  Rather, under a
Variance, an OSC selects alternate treatment levels
the Agency has established,  which are based on
data from actual   treatment  of  soil or  best
management practices for debris.
COMPLYING   WITH  A  TREATABILITY
VARIANCE FOR SOIL AND DEBRIS WASTES

Soils

   Once  the  OSCs have identified the RCRA
waste codes present at the site, the next step is to
identify the BOAT constituents requiring control
and to divide these constituents into one of  the
structural/functional groups shown in column 1 of
Highlight 2. After dividing the BOAT constituents
into their respective structural/functional groups,
the next step  is to compare the concentration of
each constituent with  the threshold concentration
(see column 3 of Highlight 2) and to select  the
appropriate   concentration   level   or   percent
reduction  range.   If the  concentration of  the
restricted constituent is less than the threshold
concentration, the  waste should be treated  to
               Highlight 2: ALTERNATE TREATABEUTY VARIANCE LEVELS AND
                  TECHNOLOGIES FOR STRUCTURAL/FUNCTIONAL GROUPS
Structural
Functional
Groups
;-ORGANieS f
Halogenated
Non-Polar
Aromatics
Dioxins
PCBs
Herbicides
Halogenated
Phenols
Halogenated
Aliphatics
Halogenated
Cyclics
Nitrated
Aromatics
Hetenocyclics
Polynuclear
Aromatics
Other Polar
Organics
INORGANICS
Antimony
Arsenic
Barium
Chromium
Nickel
Selenium
Vanadium
Cadmium
Lead
Mercury
Concentration
Range
(ppm)
Total Waste
Anaiv$ls/»
0.5-10
0.00001 - 0.05
0.1 - 10
0.002 - 0.02
0.5-40
0.5-2
0.5-20
2.5- 10
0.5-20
0.5-20
0.5 - 10
TCLP
0.1 - 0.2
0.3- 1
0.1 -40
0.5-6
0.5- 1
0005
0.2-20
0.2-2
0.1 - 3
00002-0008
Threshold
Concentration
(ppm)
Total Waste
Analysis/*
100
0.5
100
0.2
400
40
200
10.000
200
400
100
TCLP
2
10
400
120
20
0.05
200
40
300
0.08
Percent
Reduction
Range
... .: ;-..•
90-99.9
90-99.9
90-99.9
90-99.9
90-99
95-99.9
90-99.9
99.9 - 99.99
90-99.9
95-99
90-99

90-99
90-99.9
90-99
95- 99.9
95-999
90-99
90-99
95-999
99-999
90-99
Technologies that achieved
recommended effluent
concentration guidance**

Biological Treatment Low Temp. Stripping,
Soil Washing. Thermal Destruction
Dechkxination, Soil Washing, Thermal Destruction
Biological Treatment Dechkxination, Soil Washing,
Thermal Destruction
Thermal Destruction
Biological Treatment Low Temp. Stnpping,
Soil Washing. Thermal Destruction
Biological Treatment Low Temp. Stripping. Soil Washing.
Thermal Destruction
Thermal Destruction
Biological Treatment Soil Washing
Thermal Destruction
Biological Treatment Low Temp. Stnpping. Soil Washing,
Thermal Destruction
Biological Treatment Low Temp. Stripping. Soil Washing,
Thermal Destruction
Biological Treatment. Low Temp. Stripping. Soil Washing.
Thermal Destruction

Immobilization
Immobilization, Soil Washing
Immobilization
Immobilization, Soil Washing
Immobilization. Soil Washing
Immobilization
Immobilization
Immobilization, Soil Washing
Immobilization. Soil Washing
Immobilization
   •  TCLP also may be used when evaluating waste in which organics are not a principal constituent that have been treated through an
     immobilization process.
  ••  Other technologies may be used if notability studies or other information indicates that they can achieve the necessary concentration or

-------
within the  concentration  range.    If the  waste
concentration is  above the threshold, the  waste
should be treated to reduce the concentration of
the waste to within the specified percent reduction
range. Once the appropriate  treatment range is
selected, the third step is to identify and select a
specific technology that can achieve the necessary
concentration or  percent reduction.  Column 5 of
Highlight 2 lists technologies that  (based on
existing  performance    data) can attain  the
alternative Treatability Variance levels.

  For on-site actions, during the implementation
of the   selected treatment technology,  periodic
analysis using the appropriate testing procedure
(i.e., total waste analysis for organics and TCLP for
inorganics)  will  be required to  ensure that the
alternate   treatment  levels   for  the  BDAT
constituents requiring control are being  attained,
and thus, can be land-disposed  without further
treatment.

   Because   of  the  variable  and  uncertain
characteristics associated with unexcavated wastes,
from which  only  sampling data are available,
treatment systems generally  should be designed to
achieve the more stringent  end of the treatment
range (e.g., 0.5  for chromium, see  column 2 of
Highlight 2) to ensure  that the treatment  residuals
from the most contaminated portions of the waste
fall below the "no exceedance" levels  (e.g., 6.0 ppm
for chromium).   Should  data indicate  that  the
treatment  levels set  through  the  Treatability
Variance are not being  attained (i.e., treatment
residuals are greater than  the  "no exceedance"
level),  OSCs should consult with the Response
Operations Branch at Headquarters.

Debris Wastes

  OSCs should  use  the  same process described
above  for obtaining  a Treatability Variance  for
types of debris that are able to be treated to  the
alternate treatment  levels (e.g.,  paper,  plastic).
However, for most types of debris (e.g., concrete,
steel pipes),  which  generally  cannot be treated,
OSCs  should use  best  management practices.
Depending on the specific characteristics  of  the
debris,   these  practices   may    include
decontamination   (e.g.,    triple   rinsing)   or
destruction.
OBTAINING  A  TREATABILITY
FOR SOIL AND DEBRIS WASTES
VARIANCE
  Once it is determined that a CERCLA waste is
a soil or debris, and that a  Treatability Variance
will be necessary (i.e., the LDRs are applicable and
practicable for the removal action addressing soil
and debris wastes, and there is a reasonable doubt
that the LDR  treatment  standards can be met
consistently for all  the wastes),  OSCs  should
                Highlight 3 - INFORMATION TO BE INCLUDED IN A TREATABILITY VARIANCE
       ACTION MEMORANDUM AND EE/CA TO OBTAIN A SOIL AND DEBRIS TREATABILITY VARIANCE
                                   DURING CERCLA REMOVAL ACTIONS

   Information to be included in a Treatability Variance Memorandum and EE/CA for a soil and debris Treatability Variance
 during on-site and off-site removal actions is listed below. For off-site Treatability Vanances, the complete list of documentation
 requirements should be combined  and submitted as a separate document.

 ON-SITE AND OFF-SITE

 •       Description of the soil or debris waste and the source of the contamination;

 •       Description of the Proposed Action (e.g., "excavation, treatment, and off-site disposal");

 •       Intent to comply with the LDRs through a Treatability Variance; and

 •       For the selected removal action (emergency and time-critical) or for each alternative for which a Treatability Variance
         is required (non-time-critical removals), the specific treatment level range to be achieved (see Highlight 2 to determine
         these treatment levels and Highlight 7 for an example of the variance process).

 OFF-SITE ONLY

 •       Petitioner's name and address and identification of an authorized contact person (if different); and

 •       Statement of petitioner's  interest in obtaining a Treatability Variance.

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initiate  the process  of obtaining  a Treatability
Variance.

  In general, for on-site  removal actions, the
Treatability Variance will  be  in  the form of a
memorandum   attached   to   the  Action
Memorandum that documents the removal action
to be taken.  This attachment should include the
necessary  information  to justify the need  for a
Treatability   Variance   (see   Highlight   3).
Treatability Variances for on-site removal actions
are approved by Regional Administrators or their
designees.

  For  off-site  removal actions,  an OSC  must
submit  to Headquarters  a formal Treatability
Variance petition complying with the requirements
of  40  CFR  268.44 for site-specific variances.
Because  most  removal actions involve off-site
actions, OSCs will  generally  have to prepare
formal  Treatability  Variance  petitions.   The
process also  should  include local notice and an
opportunity for the public to comment, consistent
with the NCP administrative record requirements
in 40 CFR 300.820.

  Processes for obtaining a Treatability Variance
depend upon the type  of removal action.  These
actions are classified according  to the expediency
required in a given situation:  (1) emergency,  (2)
time-critical,  and (3)  non-time-critical.   The
process for obtaining a Treatability Variance  for
each of these removal actions is described below.
Each of these actions are defined in the NCP (55
FR 8666,  March 8, 1990).

Emergency and Time-Critical Actions

  There is no formal procedure for identifying and
analyzing  alternatives  for  emergency and  time-
critical removal actions. Because of the need for
a quick response  to a release, the removal action
selection process  may occur at different stages of
these removals, depending on the threats present.

  Generally, a request  for a Treatability Variance
is  a  memorandum  attached   to   the  Action
Memorandum. During emergency and some time-
critical  responses, however,  there  may not be
sufficient  information available about the need for
a   Treatability   Variance   when  the  Action
Memorandum  is signed.   In  those cases,  the
request for a Treatability Variance should be a
memorandum  (or  formal  petition, for off-site
actions) that  amends the Action Memorandum.
Sample language for this Action Memorandum is
provided  in  Highlight 4.   In  all  cases,  the
Treatability Variance memorandum should be from
the OSC  to  Regional Administrators  or their
   Highlight 4 - SAMPLE  LANGUAGE FOR
   THE ACTION MEMORANDUM

   Because existing and available data do  not
   demonstrate that the full-scale operation of
   this treatment technology can attain the LDR
   treatment standards consistently for all soil or
   debris wastes to  be addressed by this action,
   this selected removal alternative will comply
   with   the  LDRs  through  a   Treatabuity
   Variance.    The  treatment  level  range
   established through a  Treatability Variance
   and achieved through [specify technology]  will
   attain  the  Agency's   interim   'treatment
   levels/ranges" for each constituent restricted at
   the site.
designee who has the authority to approve Action
Memoranda.  Public comment on the Treatability
Variance should be solicited, whenever possible,
given the urgency of the situation, in accordance
with  the  administrative  record  and  public
participation procedures described in the NCP (40
CFR 300.820).

Non-Time-Critical Actions

   For  these  actions,  sufficient lead-time  is
generally available to conduct a more detailed
analysis  of  alternatives   before  the  Action
Memorandum is signed.  The process by which
alternatives are analyzed is described through the
   Highlight 5 - SAMPLE LANGUAGE FOR
   THE EE/CA

   Description of Alternatives:

   This removal alternative will comply with the
   LDRs through  a Treatability Variance under
   40 CFR 268.44. This Variance will result in
   the  use of [specify technology] to attain the
   Agency's interim "treatment levels/ranges" for
   the contaminated soil at the site.

   Evaluation of Alternatives:

   The  LDRs  are  applicable and  can  be
   practicably met for [Enter number] of [Enter
   total  number  of  alternatives]   removal
   alternatives being considered. [Enter number]
   of the  [Enter  total number of alternatives]
   alternatives would  comply  with  the  LDRs
   through a Treatability Variance.

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steps of the Engineering Evaluation/Cost Analysis
(EE/CA) process. Sample language for the EE/CA
is provided in Highlight 5.  The EE/CA process
includes  gathering information that will aid in
determining whether an  LDR  requirement  is
applicable and selecting a recommended action.
The   EE/CA process is  similar to the  RI/FS
process and generally includes six steps:

•       Site characterization;
•       Identification of removal action objectives;
•       Identification   of    removal   action
        alternatives;
•       Analysis of removal action alternatives;
•       Comparative analysis of removal action
        alternatives; and
•       Recommendation  of  removal  action
        alternative.

  For non-time-critical removals, the information
to justify  a Trealability Variance should  be
included in  a   memorandum attached  to the
EE/CA   Public  comments  on the Treatability
Variance should be  solicited for  a  period  of at
least 30 days when the EE/CA is made available, in
accordance  with   the  administrative  record
requirements in the NCP (40 CFR 300.820).

SUMMARY

  Because of the important  role the LDRs may
play  in  Superfund  removals, OSCs  need  to
incorporate  early  in the removal  process the
necessary investigative and analytical procedures to
determine if the  LDRs are  ARARs for on-site
removal alternatives that involve the "placement"
of wastes, and if compliance  with  the  LDRs is
practicable.   When  the LDRs are  ARARs and
compliance is practicable (or for off-site actions,
when  LDRs  are   applicable),  OSCs  should
determine if treatment processes can attain either
the LDR treatment standards or  the alternate
levels  that   would   be  established  under  a
Treatability Variance.

  Once removal alternatives are identified, OSCs
should determine if alternatives involve placement
of restricted RCRA wastes, and if so, identify the
BOAT constituents requiring control. Next, OSCs
should evaluate those alternatives  that  involve
treatment and placement  of restricted  RCRA
hazardous  wastes  to  ensure the technology
process(es) will attain the appropriate treatment
levels (i.e., either the LDR  treatment standard or
Treatability Variance alternate treatment levels for
restricted  RCRA   hazardous  wastes),  and, in
accordance with Superfund goals, reductions of 90
percent  or   greater  for   Superfund   primary
contaminants  of concern).   If  a Treatability
Variance is  necessary, a request for a Variance
must be made in the Action Memorandum (or in
an amendment to the Action Memorandum) and
EE/CA Report, and public  comment solicited.
The  results  of  these  evaluations  are   also
documented  in the Action  Memorandum  and
EE/CA Report, The integration of the LDRs into
the removal actions  is illustrated  in Highlight 6.
An example of the process for complying with a
Treatability  Variance for contaminated  soil and
debris is presented in Highlight 7.
                            Highlight 6:  LDRs IN THE REMOVAL PROCESS
Determine nature
»nd extent of site
contamination
                    Develop removal
                    alternatives for
                    the«tte
                                      Determine If LDRs
                                      are ARARa for
                                      removal alternative*
                                                       ll
       Determine If tech-
       nology(lea) will
       attain LDR treat-
       ment atandarda or
       Treatability
       Variance altematfvi
       treatment level*
                               Implement
                               remedy and
                               attain LDR
                               treatment standard*
                                                                                          OR
                                                                                    Obtain Treatability
                                                                                    Variance and Implement
                                                                                    remedy to attain
                                                                                    alternative treatment

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                     Highlight 7: IDENTIFICATION OF TREATMENT LEVELS FOR A TREATABILTTY VARIANCE

As part of the removal investigation, it has been determined that soils in one location at a site contain F006 wastes and crcsols (which site records
indicate were an F004 waste). Arsenic, which was determined to be a characteristic RCRA hazardous waste, also was found in soils at a separate
location.  Cadmium, chromium, lead, and arsenic were identified as contaminants found in the highest concentrations.  The concentration range of
all of the constituents found at the site included:
Constituent
Cadmium
Chromium
Cyanides
Lead
Total Concentration
(mates)
2,270 - 16,200
3,160- 4^90
80 - 150
500 - 625
TCLP
(mem
120- 146
30- 56
1 - 16
2- 12JS
Constituent
Nickel
Silver
Cresols
Arsenic
Total Concentration
(me/kg)
100 - 140
1 - 3
50 -600
800 -1,900
TCLP
(me/I)
1 -6.5
—
.25-4
3-9
    Four remedial alternatives are being considered:   (1) Low temperature thermal stripping of soil contaminated with cresols followed by
immobilization of the ash; (2) Immobilization of the soil in a mobile unit; (3) In-situ immobilization; and (4) Capping of wastes.  Each of these
alternatives must be  evaluated to determine if they will result in significant reduction of the toricity, mobility, or volume of the waste; whether
"placement" occurs; and, if "placement" occurs, whether the treatment will attain the alternative treatment levels established through a Treatability
Variance for the BOAT constituents requiring control.

STEP1:  IDENTITY THE RESTRICTED CONSTITUENTS
•   Because F006  and F004 wastes  have been identified  in soils at the site, the Superfund site manager must  meet alternate treatment levels
    established through a Treatability Variance for the BOAT constituents. These constituents are:  Cadmium, Chromium, Lead, Nickel, Silver,
    and Cyanide for F006 and Cresols  for F004.

    AND DIVIDE THE CONSTITUENTS INTO THEIR STRUCTURAL/FUNCTIONAL GROUPS (see  Highlight 2):
•   All of the F006 constituents are in  the Inorganics structural/functional group.
•   Cresols are in the Other Polar Organic Compounds structural/functional group.
•   The  action should result in the effective reduction (i.e., at  least 90 percent) of all primary constituents of concern (i.e., Cadmium, Chromium,
    Lead, and Arsenic).

STEP 2:  COMPARE THE CONCENTRATION THRESHOLD FOUND IN HIGHLIGHT 2 TO THE CONCENTRATIONS FOUND AT THE SITE
         AND CHOOSE EITHER THE CONCENTRATION LEVEL RANGE OR PERCENT REDUCTION RANGE FOR EACH RESTRICTED
         CONSTITUENT.
Site Threshold
Constituent Concentration Concentration
Cadmium
Chromium
Lead
Nickel
Cresols
Cresols
Arsenic



(TCLP)

120 -
30-
2-
1 -
50 -
25
3
146 ppm :
56 ppm <
12 .5 ppm «
6-5 ppm
600 ppm
4 ppm
9 ppm
> 40
: 120
: 300
c 20
> 100

< 10
ppm
ppm
ppm
ppra
ppm

ppm
Appropriate Range Range to be achieved
Concentration Percent Reduction (compliance analvsis)
X 95-99.9 Percent
X
X
X
X

X
0.5
0.1
0.5
-6
-3
- 1
90-99 Percent
X
0.27

- 1
Reduction (TCLP)
ppm
ppm
ppm
(TCLP)
(TCLP)
(TCLP)
Reduction (TCLP)

ppm

(TCLP)
STEP 3:  IDENTIFY TREATMENT TECHNOLOGIES THAT MEET THE TREATMENT RANGES.
•   Highlight 2 lists the technologies that achieved the alternate treatment levels for each structural/functional group.
•   Because cresols are present in relativcry low concentrations (assumed for the purposes of this example), a TCLP may be used to determine if
    immobilization results in a sufficient reduction of mobility of this restricted RCRA hazardous waste. (Measures to address any volatilization of
    organics during immobilization processes will be  necessary.)
•   Immobilization also will result in the effective reduction in teachability (i.e., at least 90 percent) of arsenic, a Superfund primary contaminant
    of concern.
Effective Redaction
Alternative of Toxicitv, Mobility, Volume?
1. Low temperature stripping/
Immobilization
2. Immobilization in mobile unit
3. In-situ immobilization
Yes
Yes
Yes (Mobility)
Meet Treatability Variance
"Placement?" Alternate Levels?
Yes
Yes
No (LDRs not ARARs)
Yes
Yes
—
STEP 4:  PREPARE ACTION MEMORANDUM OR EE/CE REPORT
•   Highlight 4 provides sample language for the Action Memorandum and Highlight 5 provides the sample language for the EE/CA to present the
    intent to comply with the LDRs through a Treatability Variance.

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             Superfund LDR Guide #7
   Determining When Land Disposal Restrictions are
Relevant and Appropriate to CERCLA Response Actions

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A EPA
                         United States
                         Environmental Protection
                         Agency
                             Office of
                             Solid Waste and
                             Emergency Response
                            Superfund Publication:
                            9347.3-O8FS
                            December 1989
    Superfund  LDR Guide #7
    Determining  When  Land  Disposal
    Restrictions  (LDRs)  Are  Relevant
    and  Appropriate  to  CERCLA
    Response Actions
    CERCLA Section 121(d)(2) specifies that on-site Superfund remedial actions shall attain "other Federal standards,
 requirements, criteria, limitations, or more stringent State requirements that are determined to be legally applicable
 or relevant and appropriate (ARAR) to the specified circumstances at the site." In addition, the National Contingency
 Plan (NCR) requires that on-site removal actions attain ARARs to the extent practicable.  Off-site removal and
 remedial actions must comply with legally applicable requirements. This guide outlines the process osed to determine
 whether the Resource Conservation  and  Recovery Act (RCRA) land disposal restrictions (LDRs) established under
 the Hazardous and Solid Waste Amendments (HSWA) are "relevant and appropriate" to an on-site CERCLA response
 action. (See Superfund LDR Guide #5  for determining when LDRs are applicable to CERCLA response actions.)
 The guide also provides examples of when the LDRs are likely to be relevant and appropriate and when they are not.
 With respect to contaminated soil and  debris,  EPA is undertaking a rulemaking to establish specific LDRs; until this
 rulemaking is completed, EPA generally will not consider the LDRs to be relevant and appropriate for soil and debris
 contaminated with hazardous substances that are not RCRA restricted wastes.  More detailed guidance on Superfund
 compliance with the LDRs is being  prepared by the Office  of Solid Waste and Emergency Response (OSWER).
 LDR    RELEVANT
 DETERMINATIONS
AND   APPROPRIATE
    For  on-site CERCLA responses  that constitute
placement, and  for which the LDRs  have  been
determined not to be applicable (i.e., the wastes being
placed are not prohibited or restricted RCRA wastes),
site managers should evaluate whether the LDRs are
relevant   and  appropriate.   As  discussed  in  the
CERCLA Compliance with Other Laws Manual (EPA,
August 8, 1988), relevant and appropriate decisions
require best  professional  judgment of  site-specific
factors to determine whether a requirement addresses
problems  or  situations  sufficiently  similar  to  the
circumstances  of the release,  or  remedial action
contemplated,  and  is well-suited  to  the site,  and
therefore, is both relevant and appropriate.

    Section 300.400(g)(2) of the proposed NCP [53 FR
at  51436 (December  21,  1988)] outlines a number of
factors pertaining to CERCLA situations and potential
ARARs  which  should  be compared to determine
whether   a   requirement  is  both  relevant   and
appropriate.   The four  pertinent factors to compare
when  evaluating   the   potential   relevance   and
appropriateness of the LDRs are:  (1) the action or
activities regulated by the requirement (e.g., placement
on the land) and the remedial action contemplated; (2)
the purpose of the requirement and the purpose of the
CERCLA action; (3) the substances regulated by the
requirement and the substances found at the CERCLA
site; and (4) the medium regulated or affected by the
requirement and the medium contaminated or affected
at the CERCLA site.  These factors are evaluated to
determine whether the circumstances  of the release
and remedial action contemplated are such that use of
the  LDR requirements  is well-suited  to CERCLA
response objectives.

    The evaluation of the circumstances of a release
is conducted as part  of the remedial investigation,
during which information is collected on contaminant
sources, potential routes of migration, and potential
human and environmental receptors of concern.  The
results of this effort (which is ultimately documented
in the site characterization and baseline risk assessment
chapters  of the RI/FS report) are used to establish
remedial action  objectives  for the areas  or  media
contaminated at the site that pose a threat to human
health  and  the   environment.    The  site-specific
CERCLA response objectives of the remedial action
contemplated should be compared with the purpose or
objectives of the LDRs as a first step in determining
the  potential relevance and appropriateness of  the
LDRs [proposed NCP  factors (a) and (e)].

    The  objective of  the  LDRs  is  to  achieve
reductions  in the  toxicity  and/or  mobility  of a

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hazardous  waste,  based on  application of  the  best
demonstrated available technology (BOAT), prior to its
land  disposal.   While this  objective  will  often be
compatible  with  remedial  alternatives designed to
destroy highly concentrated, toxic, and mobile materials
such  as liquids, other remedial alternatives  involving
treatment of the principal threats  of a  site may have
different objectives to which  the LDRs are not well-
suited.

    Once a decision is  made  that  achieving BOAT
reductions  in the  toxicity and/or mobility of a waste
source is compatible with CERCLA response objectives
for the site, site managers should utilize information on
waste constituents  and matrices  collected as part of the
site characterization  to evaluate whether a CERCLA
waste is "sufficiently similar"  to a listed RCRA waste
code  or family of   waste  codes   (e.g.,  K048-K052,
petroleum refining  wastes) such  that the  LDR  standard
for that waste  code  is appropriate  for  the CERCLA
waste.

    In determining  whether a CERCLA  waste is
sufficiently  similar,  site managers  should  consider
whether the BDAT   used to set the LDR  standard
.vould  be  effective   for   the  CERCLA   waste.
^Technologies other than those  used  to ict the BDAT
standards may  be  considered, although  they  must be
regarded as  capable  of meeting  the  promulgated
:oncentration requirements.)  Although  a constituent-
Dy-constituent  analysis is not necessary for  relevant
ind appropriate determinations, a general comparison
if the waste constituents and  matrices is useful  for
dentifying waste codes to which  a CERCLA waste may
>e similar,  and therefore, helpful in  the identification
)f  technologies   that   may   be    appropriate   for
:onsideration.

    If a CERCLA waste that  consists  of a  complex
nixture of several different wastes occurs in a different
nedium (e.g., soil)  or  matrix (BDAT standards may be
•-stablished for  specified matrices, such as wastewaters,
lonwastewaters, or both) from what is specified for a
>articular   restricted   waste   code   or   contains
ncompatible waste  constituents,  use of BDAT  may not
>e appropriate  for that waste,  and therefore, the LDRs
  NOTE:   If  the  LDRs  are  determined  to  be
  relevant  and appropriate  requirements  for  a
  CERCLA  action  (i.e.,  there  is  a  close  match
  between  the  CERCLA and LDR objectives, and
  a close match between the constituents/matrix of
  the CERCLA waste and the constituents/matrix
  of  the relevant  RCRA waste  code),  but the
  treatment process involved in the remedy does
  not  achieve  BDAT  levels   in  the  field  as
  anticipated,  a Treatability Variance  establishing
  alternate treatment levels should  be  sought.
would not be relevant and appropriate [proposed NCP
factor (b)].    It  has  been the  experience  of  the
Superfund  program that Treatability Variances  are
frequently necessary for  soil and debris contaminated
with a restricted RCRA waste  (see  Superfund LDR
Guide #6A), because the promulgated LDR standards
are  based  on  treating  less  complex  matrices  of
industrial process wastes. As a logical corollary to this
finding, the Agency believes that LDRs generally would
not be "relevant and appropriate" requirements for soil
and  debris contaminated with non-RCRA restricted
wastes.   However,  the Agency  plans to undertake  a
rulemaking that will prescribe applicable standards for
the treatment  of soil  and  debris contaminated with
RCRA-restricted wastes.  In  the future, these standards
may be relevant and appropriate to the  treatment  of
soil and debris contaminated  with non-restricted wastes.

     Examples  illustrating the relevant and appropriate
determination process follow:

•    A number of drums containing hazardous wastes
     are   discovered   during  a  site  investigation.
     Although  no  written documentation  or specific
     knowledge  of the sousce is available  to identify
     with certainty the  origins  of the  wastes, the
     laboratory analyses indicate  that they contain very
     high concentrations of a  predominantly  liquid
     waste  indicative  of industrial  waste  streams.
     Therefore,  maximum  destruction of  the  drum
     contents  is established  as  the  remedial  action
     objective.   Due to the  general similarity of the
     bulk liquids to the  spent  solvents listed in the
     F001-F005  waste  codes,   the  CERCLA  site
     manager determines that use of incineration (one
     of the BDAT identified in the  solvent  and  dioxin
     rule for that  family of waste codes) would  be
     technically suitable.  Therefore, the LDRs  would
     be relevant and appropriate for an  alternative
     involving  the  treatment and  placement  of the
     drummed waste.

•   A CERCLA  waste  mixture  from an unknown
    source is  found to  consist  of wastes  similar to
    F021 dioxin-containing  wastes  (i.e., they contain
    constituents found in  dioxin-containing wastes)
    and  mercury.   Because  use  of  incineration - the
    BDAT for dioxin-containing wastes —  would not
    be   compatible  with a waste  also  containing
    mercury,   application  of  the   LDR  treatment
    standards  to  this  waste mixture would not  be
    appropriate. Therefore, the LDRs would not be
    relevant and appropriate to  a CERCLA response
    involving  the  placement of this waste  mixture.
    (Alternate methods  of  treating the waste  might
    still  be necessary  to satisfy both the  CERCLA
    statutory requirement to utilize treatment to the
    maximum  extent  practicable  and  the program
    expectations that  are outlined in the proposed
    NCP.)

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          Superfund LDR Guide #8
Compliance with Third Third Requirements Under
          Land Disposal Restrictions
                                        "30]

-------
                              United States
                              Environmental Protection
                              Agency
                              Office of
                              Solid Waste and
                              Emergency Response
Supertund Publication:
9347.3-08FS
October 1990
       EPA
Superfund  LDR Guide #8
Compliance with Third  Third
Requirements  under
the  LDRs
   Office of Emergency and Remedial Response
   Hazardous Site Control Division     OS-220
                                                        Quick Reference Fact Sheet
        The 1984 Hazardous and Solid Waste Amendments (HSWA) require EPA to promulgate regulations restricting the land
disposal of RCRA hazardous wastes.  EPA previously promulgated regulations restricting the land disposal of solvent- and dioxin-
containing, California list, First Third, and Second Third wastes.  This guide (the eighth in a series of LDR guides prepared by the
Office of Emergency and Remedial Response (OERR)) summarizes the key provisions of the Third Third LDR rule and discusses
potential implications  for CERCLA response  actions.  More detailed guidance on Superfund compliance with the LDRs is being
prepared by the Office of Solid Waste and Emergency Response (OSWER).
    The Third Third rule,  promulgated on May 8,  1990,
restricts all remaining RCRA hazardous wastes (listed as of
November 8, 1984) for which treatment standards had not
previously been set. Wastes for which LDR standards are not
established include certain wastes that were newly listed or
newly identified after November 8, 1984, mineral processing
wastes  previously excluded from regulation under the Bevill
Amendment, and certain newly identified characteristic wastes.
The rule sets treatment standards and effective dates for the
characteristic hazardous wastes, First and Second Third wastes
that were "soft hammered," multi-source leachate, and mixed
hazardous  and radioactive wastes.  EPA granted a 90-day
national capacity variance for all wastes in the Third Third
rule, excluding those  wastes already receiving  a two-year
national capacity  variance.    In addition, EPA provided
important policy guidance on the following issues:

•   Continued application of the California list restrictions;
•   Interpretation of the dilution prohibition; and
•   Application of LDR  standards to lab packs.

TREATMENT STANDARDS

    As with previous LDR rules, EPA set concentration-based
treatment standards for Third Third wastes whenever possible
(thus allowing use of any technology that can  achieve the
specified performance level).  However, many Third Third
treatment standards are  set as  methods of treatment (e.g.,
incineration), because the Agency currently has no means of
calculating valid concentration-based standards that can be
used for compliance monitoring.  To comply with the LDRs
when  EPA has  specified a  method(s)  of treatment, site
managers must either use the specified technology to treat the
waste or demonstrate that  an alternative technology can
achieve a  level of performance equivalent to  that of the
specified technology.

    In  cases where soil  and debris  are contaminated with
RCRA hazardous wastes for which  the  treatment standards
are methods of treatment, site managers should  continue to
                            comply with the LDRs through a Treatability Variance, as
                            outlined in Superfund LDR Guides #6A and #6B.  [See
                            Preamble to the 1990 National Contingency Plan (NCP), 55
                            FR 8760-61, March 8,  1990.)

                            NATIONAL CAPACITY VARIANCES

                               EPA granted a 90-day national capacity variance, until
                            August 8, 1990, for all wastes included in the Third Third
                            Rule.  EPA also granted certain wastes national capacity
                            variances from the LDRs  for up to two years (from May 8,
                            1990 until May 8, 1992), based on inadequate  treatment
                            capacity.  The surface-disposed wastes  receiving  a two-year
                            national capacity variance are listed in Highlight 1.
                            CHARACTERISTIC WASTES

                               Among the wastes restricted in the Third Third rule are
                            those wastes exhibiting one or more of the RCRA hazardous
                            characteristics (i.e.,  ignitability,  corrosivity, reactivity,  or
                            toxicity).  EPA set treatment standards for the characteristic
                            wastes  both  as concentration-based levels and  methods of
                            treatment. For most characteristic wastes with concentration-
                            based treatment levels, EPA generally set the LDR treatment
                            standards at the characteristic level that defines these wastes
                            as hazardous. For example, EPA currently defines a DOW
                            waste as mercury that leaches more than 0.2 mg/1 using the EP
                            toxicity test; the treatment standard for mercury is 0.2 mg/1
                            using the TCLP test. Because EPA established concentration
                            levels for these wastes at the characteristic level, treatment to
                            the LDR treatment standards will render the treated wastes
                            non-hazardous. Therefore, the treated wastes may be disposed
                            of in Subtitle D landfills.   [Note:   the Agency recently
                            promulgated  the  toxicity characteristic  (TC)  rule,  which
                            requires use of the TCLP test beginning September 25, 1990
                            as a means of determining whether a waste is characteristic.
                            Therefore, as of September 25, 1990, the TCLP will be used
                            to determine whether a waste  is characteristic and, in most
                            cases, for compliance with LDR standards prior to disposal.]

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   Highlight 1 . SURFACE-DISPOSED WASTES
   RECEIVING TWO-YEAR NATIONAL CAPACITY
   VARIANCES IN THE THIRD THIRD RULE
   Technology
                                Waste Code*
   All                       All scheduled mixed
                             hazardous/radioactive wastes
                             and D004-D011 inorganic
                             solid debris

   Vitrification                D004    P011
                             K031    P012
                             JC084    P036
                             K101    P038
                             K102    U136
                             P010

   Combustion of Sludge/Solids  F039b    K048-K052'
   Acid Leaching and
   Chemical Precipitation
   (low mercury) and mercury
   retorting (high mercury)

   Secondary Smelting

   Thermal Recovery
   Incineration, vitrification,
   and mercury retorting
D009     P092
K106     U151
P065
D008d

P087 (wastewater and
nonwasiewater)

Soil and
Debris
   3 Variances are granted only to the nomvastewater forms,
     unless otherwise noted.
   b Multi-source leachate.
   c Capacity extension only until November 8. 1990.
   d D008 lead-acid batteries.
     For  the  pesticide  wastewaters,  EPA set  treatment
standards  as   specified  technologies.     For   pesticide
nonwastewaters, the treatment standards are set as total waste
concentrations (not extract concentrations). Although these
total waste concentrations appear to be higher than the levels
that define the wastes as hazardous, given the 20  to 1 dilution
factor inherent in the TCLP and EP protocols, no correlation
between the treatment standard and the characteristic level can
be  assumed.   Therefore, testing likely  will be necessary  to
determine  whether  these wastes remain  hazardous once
treated  to the LDR treatment standards (see Highlight 2).

     For characteristic  wastes with  specified   methods  of
treatment (e.g., certain D001  ignitable wastes), site managers
must treat the  wastes with the specified technology  or
demonstrate  that an  alternative technology can achieve  an
equivalent  level of performance.  Following treatment, wastes
should be tested to determine whether the wastes have been
rendered  non-hazardous  and evaluated as to whether the
residues exhibit characteristics other than those for which the
waste was  originally treated.   In some cases, the use of a
BOAT  treatment technology to remove one characteristic
                                       Highlight 2 - THIRD THIRD CHARACTERISTIC
                                       PESTICIDE NONWASTEWATER TREATMENT
                                       STANDARDS
                                                                    Waste    Name
                                                           LDR Treatment EP Tojdcity/TC
                                                           Standard (mg/1) Level (mg/1)*
                                                           (total waste)
                                       D012     Endrin         0.13
                                       D013     Lindane        0.066
                                       D014     Methoxychlor   0.18
                                       D015     Toxaphene
                                       D016     2,4-D
                                       D017     2,4,5-TP
                           13
                          10.0
                           7.9
 0.02
 0.4
10.0
 0.5
10.0
 1.0
                                       ' These also will be the regulatory standards under the
                                       TCLP when it becomes effective on September 25, 1990.
could result in a residue that exhibits a different characteristic
and, therefore, the residue may require further treatment. For
example, incineration of an ignitable D001 waste may generate
an ash that exhibits the  characteristic of toxicity for certain
metals. This ash would need to be treated for the additional
characteristic to meet  the  LDR  treatment  standard  before
disposal.    If the treatment  has  rendered  the waste non-
hazardous, the  residues may  be disposed of in a Subtitle D
facility.

   When a listed waste also exhibits a characteristic, the waste
must be treated to the treatment standard established for both
the listed waste and its characteristic, unless the characteristic
constituent or property is specifically addressed through  the
treatment standard  for the listed waste. For  example, if F006
waste (for which lead is a BDAT constituent) also exhibits the
hazardous  characteristic  of lead,  the waste  must be treated
only to the treatment standard for  F006, because it is the most
waste-code specific standard and lead is a constituent directly
addressed by the F006 treatment standard. If an F001 solvent
waste also exhibits  the characteristic of lead,  however,  the
waste must be treated to meet the F001 solvent standard and
the  D008  lead  treatment  standard, because  lead is  not  a
BDAT constituent for F001 waste. Therefore, it is important
for  site   managers  to  determine  all   of  the  listed and
characteristic codes  that may apply to a waste.

   Because EPA divided several  of the characteristic wastes
into treatability groups for purposes of establishing treatment
standards, (see  Highlight 3), site managers should determine
which ireatability group(s) are present during a response action
and  comply with their respective treatment standards.

MULTI-SOURCE LEACHATE

   EPA has listed multi-source leachate, defined as leachate
derived from the treatment, storage, disposal, or recovery of
more than one listed hazardous waste, as a  new waste code,
F039, and established one set of wastewater standards and one

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set of nonwastewater standards for this code. These standards
set  concentration  levels  for  the  entire  BOAT  list  of
constituents (approximately 200 in total) that may be found in
multi-source leachate (see Highlight 4).  [Note:  treatment
standards for the constituents under F039  may differ from
standards for the same  constituents in other more specific
waste codes.]

    CERCLA compliance with the F039 treatment standards
will involve  the analysis of the BDAT constituents present in
waste streams extracted  through  leacbate collection systems,
and the  treatment  of such wastes  to  meet the appropriate
levels for these constituents.  Because of the RCRA derived-
from  rule,  residuals from the  treatment  of  multi-source
leachate  are restricted under the LDRs.   [Note:   Leachate
derived from the exclusive management of more than one of
the listed dioxin-containing hazardous wastes (e.g., F020-F023
and F026-F028) is classified as a single-source dioxin waste and
is not considered multi-source leachate.]

MIXED RADIOACTIVE WASTES

    EPA promulgated  treatment   standards expressed as
specified methods for the following four categories of mixed
hazardous   and radioactive wastes:    (1)  hydraulic  oils
contaminated with mercury, (2) wastes containing elemental
mercury, (3) wastes containing elemental lead, and (4) D002,
D004-D011   radioactive  high-level wastes generated  during
reprocessing of fuel rods.   For other mixed  wastes,  the
   Highlight   3   -   SUBCATEGORIES   FOR
   CHARACTERISTIC WASTES

   The following are RCRA characteristic wastes for which
   EPA established Irealability groups in addition to
   wjslewaiers and nonwaslewaters:
    iDOOl Ignitables
    -  Ignitable liquids
      -- organic liquids
      -- aqueous liquids
      -- wastewalers
    -  Ignilable reactives
    -  Oxidizers
    -  Ignilable compressed
      gases

    i  D002 Corrosives
    -  Acids
    -  AJkalines
    -  Other corrosives

    i  D003 React ives
    -  Reactive cyanides
    -  Explosives
    -  Water reaciives
    -  Reactive suicides
    -  Other reactives
   Note:  Those characteristic wastes not listed here have
   wastewater and nonwaslewater categories Ircatability groups
   only.
•D006 Cadmium
 - Wastewalers
 - Nonwastewaters
 - Cadmium Batteries
•D007 Chromium
 - Wastewalers
 - Nonwaslewaters
 - Chromium Bricks
 - Chromium Batteries
•D008 Lead
 - Wastcwaters
 - Nonwastewaiers
 - Lead-Acid Batteries
                                        Highlight 4 - EXAMPLE OF F039 MULTI-SOURCE
                                        LEACHATE TREATMENT STANDARD'
                                        (Standards arc set in a similar manner for each of the
                                        approximately 200 BDAT constituents.)
                                        Wastewalcr

                                        Acetone
                                        Acenaphthalene
                                        Acenaphthene
                                        Acetonilrile
                                        Acetophenone
                                        Nonwastewaler

                                        Acetone
                                        Acenaphthalene
                                        Acenaphthene
                                        Acelophenone
                             Total Concentration*
                                 fmg/n

                                0.28
                                0.059
                                O.OS9
                                0.17
                                0.010
                             Total Concentration**
                                 (mgAel

                               160.0
                                3.4
                                9.1
                                9.6
                                        Notes:
                                        " F039 nonwastewaters received two year national capacity
                                        variances.

                                        * Total concentration for wastewaters based on the
                                        maximum for any single grab sample

                                        ** Total composition for nonwastewaters based on
                                        maximum for any 24-hour composite.
treatment standard for the RCRA hazardous waste code is the
standard in effect for the hazardous portion of mixed wastes.
EPA determined  that  inadequate  nationwide  treatment
capacity  exists  for  all Third Third  surface-disposed mixed
radioactive wastes,  and granted  these  wastes  a  two-year
national capacity variance. Mixed wastes containing only spent
solvents and dioxms, or  California list wastes, are still subject
to the applicable treatment standards; no capacity variances are
in effect  for these wastes.

CALIFORNIA LIST WASTES

   On July 8, 1987, EPA promulgated a final rule establishing
treatment standards for California list wastes containing PCBs
and certain HOCs, and  codified the  statutory prohibition on
liquid corrosive wastes.  The statutory prohibition is in effect
for the California list wastes containing free cyanides, metals,
and the California list dilute HOC wastewaters. As discussed
in Superfund LDR Guide #2, Complying With the California
List Restrictions Under the Land Disposal Restrictions (LDRs),
when the California list waste restrictions  overlap with waste-
code  specific treatment  standards,  the waste-code  specific
treatment standards apply.  Therefore, most California  list
prohibitions are now superseded by more waste-code specific
prohibitions and treatment standards  as a  result of the Third

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Third  rule.  However, the California  list  prohibitions  will
continue to apply in the cases outlined below:
•    Liquid hazardous wastes that contain over SO ppm FCBs,
     where the  PCBs  are not regulated by  the  treatment
     standard;

•    HOC-containing wastes that are identified as  hazardous
     by a characteristic property not involving HOCs, such as
     an ignitable waste that also contains greater than 1,000
     ppm HOCs;

•    Liquid hazardous wastes that contain a total concentration
     equal to or greater than  134 mg/1 of nickel and/or  130
     mg/1 of thallium (because these two constituents are not
     regulated under the characteristic  of toxicity);  and

•    Wastes with a national capacity variance that are also
     California   list  wastes,  until the waste-code  specific
     treatment standards become effective.
LAB PACKS

     In  the Second Third  rule,  EPA  reaffirmed  that  all
restricted wastes in lab packs being land disposed must comply
with the LDR treatment standards for each waste in the lab
pack. In the Third Third rule, EPA established two alternate
treatment standards for lab packs: (1) incineration followed by
treatment  (e.g., stabilization)  to  meet  the  appropriate
individual treatment standard for each EP toxic metal present
in lab packs containing only organo-metallic wastes (listed in
40 CFR 268 Appendix IV);  and (2) incineration as a method
for lab packs that contain only certain organic wastes (listed
in 40 CFR 268 Appendix V).

     Where possible, site managers should segregate lab packs
containing  wastes found in 40 CFR 268 Appendix IV and V
to facilitate appropriate treatment determination. Lab packs
that contain PCBs or  dioxins  must  continue to meet the
treatment standards for those wastes. For example, a lab pack
containing only dtoxin-comaining wastes (F020-F023 and F026-
F028),  a  mixture of dioxin-containing wastes and organic
hazardous wastes, or California list PCBs and dioxin-containing
wastes  must  be  incinerated according  to the  applicable
standards for those wastes.

DILUTION PROHIBITION

   In the  Third Third  rule, EPA reaffirmed the existing
dilution prohibition contained in 40 CFR 268.3 for RCRA
listed wastes, which restricts  dilution  through  mixing of
hazardous wastes unless such dilution  meets the standard in
§ 3004(m) of substantially  reducing  the prohibited waste's
toxicity  or mobility.  EPA  has  clarified, however, that  the
aggregation of  wastes   does not  constitute  impermissible
dilution if the wastes are all  legitimately amenable to the  type
of treatment being  used.   Dilution  also  is allowed in  the
following cases for characteristic wastes:

•  When  characteristic  wastes are managed in wastewater
   treatment systems discharging  under  the  pretreatment
   program or an  NPDES permit regulated under the Clean
   Water  Act (CWA)  (unless  a  method  is  specified), or
   disposing in Class 1 underground injection wells regulated
   under   the   Safe  Drinking   Water   Act  (SDWA),  if
   nonhazardous at the point of injection.

•  When  dilution  removes  the characteristic property from
   non-toxic characteristic wastes. [EPA considers high total
   organic carbon  (TOC) ignitable nonwastewaters, reactive
   cyanide wastes,  reactive sulfide wastes, and EP toxic metals
   and pesticides to be toxic  characteristic wastes, and dilution
   is  not  allowed  for these wastes.  All other D001-D003
   wastes are considered non-toxic.]

   Site managers should ensure that any dilution occurring as
a result of waste streams being  combined  is for acceptable
purposes  (e.g.,  pretreatment or treatment).  The  dilution
prohibition may be violated when wastes that are not amenable
to the same type of treatment are aggregated.  For example,
if a listed hazardous waste containing metals is aggregated  with
organic wastewaters  resulting  in  metal  levels no  longer
exhibiting the characteristic, and the  aggregated mixture is sent
to biological treatment, the dilution  prohibition  would be
violated because biological  treatment  is not an appropriate
treatment  for metal-bearing toxic wastes,  (i.e.,  the  metal
removal was not  as a   result of treatment, but  was  from
dilution).
    NOTICE: The policies set out in this memorandum arc intended solely as guidance. They are not intended, nor can they be relied
    upon, to create any rights enforceable by any party in litigation with the United Slates.  EPA officials may decide to follow the guidance
    provided  in this memorandum, or to acl at variance with the guidance, based on an analysis of specific sile circumstances. The Agency
    also reserves the right to change this guidance at any time without public notice.

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         ARARs Qfs and A!s:
Compliance with Toxicity Characteristics
               Parti

-------
                                   United States
                                   Environmental Protection
                                   Agency
                     Office of
                     Solid Waste and
                     Emergency Response
Publication 9234 2-08/FS

May 1990
       &EPA
ARARs   Q's   &  A's
Compliance With  the Toxicity Characteristics Rule:   Part I
Office of Emergency and Remedial Response
Office of Program Manaaement OS-240
                                                   Quick Reference Fact Sheet
     Section 121(d) of CERCLA, as amended by the 1986 Superfund Amendments and Reauthorization Act (SARA),
 requires that on-site remedial actions must at least attain (or justify a waiver of) Federal and more stringent State applicable
 and relevant  and appropriate requirements (ARARs) upon completion of the remedial  action.  The 1990 National
 Contingency Plan (NCP) requires compliance with ARARs during remedial actions as well as at completion, and compels
 attainment of ARARs during removal actions, whenever practicable.  See NCP, 55 FR 8666, 8843 (March 8, 1990) (to be
 codified at 40 CFR section 300.415(i)(1990)), and 55 FR 8666, 8852 (March 8, 1990) (to be codified at 40 CFR section
 300.435(b)(2)(1990)).

     To implement the ARARs provision, EPA has developed guidance, CERCLA Compliance With Other Laws Manual:
 Parts I and II (Publications 9234.1-01 and 9234.1-02), and has provided training to Regions and States on the identification
 of and compliance with ARARs.  This "ARARs Q's and A's" is part of a series  that provide guidance on a number of
 questions  that arose in  developing ARAR policies, in ARAR training sessions,  and in identifying and complying with
 ARARs at specific sites.  This particular Q's and A's Fact Sheet addresses compliance with the recently promulgated Toxicity
 Characteristics Rule (55 FR 11798 (March 29,  1990)).
 Ql.     How are wastes characterized as hazardous under
        RCRA?

 A    RCRA  Subtitle  C requirements are applicable  to
      CERCLA response actions if the waste is a  RCRA
      hazardous waste, and either the waste was initially
      treated, stored, or disposed of after the effective date
      of the particular RCRA requirement, or the activity
      at the CERCLA site constitutes treatment, storage,
      or disposal, as defined by RCRA  RCRA uses the
      following two  procedures  to define wastes  as
      hazardous: (1) the listing procedure, which involves
      identifying specific industrial or process wastes that
      pose hazards to human health and the environment;
      and  (2)  the  hazardous  characteristics procedure,
      which   involves  identifying   properties   or
      "characteristics'  that,  if exhibited  by  any  waste,
      indicate  a potential  hazard  if the waste  is not
      properly controlled. See 40 CFR section 261.3(a)(2).
      The new Toxicity Characteristics (TC) rule concerns
      one of four characteristics that indicate a  potential
      hazard (the  others are ignitability, reactivity, and
      corrosivity).   A waste  is a TC waste if any  of the
      chemicals listed in Highlights I or 2 are found in the
      leachate at concentrations equal to or  greater  than
      their regulatory levels.
Highlight 1: NEW CHEMICALS REGULATED
UNDER THE TC RULE AND
THEIR LEACHATE
REGULATORY LEVELS
Benzene
Carbon tetrachfonde
Chlordane
Chloro benzene
Chloroform
m-Cresol
o-Cresol
p-Cresol
1 ,4-Dichloro benzene
1 ,2-Dichloroethane
1,1 -Dichloroethylene
2,4-Dinilrotoluene
Hepuchlor (and its hydroxide)
Hexach lor- 1 ,3-butadiene
H exach lorobenzene
Hexach loroethane
Methyl ethyl ketone
Nitrobenzene
Pen tachiorophcnol
Pyndine
Tetrachloroctnyiene
Trichloroethylene
2,4,5-Tnchiorophenol
2,4,6-Trichlorophenol
Vmv! chlonde
* intenm regulatory level
0.50 mg/1
050 mg/1
0.03 mg/1
100.0 mg/1
6.0 mg/1
200.0 mg/1
200.0 mg/1
200.0 mg/1
7.5 mg/1
0.50 mg/I
0.70 mg/1
0.13 mg/1
0.008 mg/1
0.5 mg/1
0.13 mg/1
3.0 mg/1
200.0 mg/1
20 mg/1
100.0 mg/1*
5.0 mg/1
0.7 mg/1
0.5 mg/1
400.0 mg/1
2.0 mg/1
0 20 mg/I


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Q2.   What are the major provisions of the new TC rule?

A.    The final TC rule adds 25 organic chemicals to the
      list of waste constituents which, if present in waste at
      or  above the regulatory  levels set in  the rule (see
      Highlight  I),  make the  waste  a  hazardous waste.
      These 25 chemicals have been added to the 8 metals
      and 6 pesticides on the existing  list  of  TC waste
      constituents (see Highlight  2).   The TC rule also
      announced  that  13  additional  chemicals may be
      added to the  TC list after  EPA establishes their
      regulatory levels. Finally, the new TC rule replaces
      the Extraction Procedures (EP) with another test for
      determining toxicity (for  both the new and existing
      chemicals regulated for the characteristic of toxicity).
      The new test  is called the Toxicity Characteristics
      Leaching Procedure (TCLP). The impetus behind
      the  development of the TCLP was  the need to
      identify  those  wastes  that  are  likely  to  leach
      hazardous concentrations of organic compounds.

      Note:  To determine compliance  with  RCRA  land
      disposal  regulations, the EP is still  available for
      wastes that are not considered wastewater (i.e., for
      soils and sludges that contain more than 1% total
      suspended solids)  and  that contain  either  any
      amount of lead, or arsenic when  it is  the primary
      hazardous  constituent (i.e., the  highest constituent
      concentration) in the waste  (see section 3(e)(8) of
      the final RCRA Third Third Rule,  unpublished at
      the time of this printing).
Highlight 2: CHEMICALS ALREADY
REGULATED FOR
CHARACTERISTICS AND
REGULATORY
Arsenic
Barium
Cadmium
Chromium
Endrin
Lead
Lindane
Mercury
Methoxychlor
Selenium
Silver
Toxaphene
2,4-Dichloro-
phenoxycetic acid
TOXICITY
THEIR LEACHATE
LEVELS
5.0 mg/l
100.0 mg/l
1.0 mg/l
5.0 mg/l
0.02 mg/l
5.0 mg/l
0.4 mg/l
0.2 mg/l
10.0 mg/l
1.0 mg/l
5.0 mg/l
0.5 mg/l

10.0- mg/l
2,4,5-Trichloropheno-
xypropionic acid
1.0 mg/l




















Q3.   How  does the  new TC rule affect the regulatory
      levels of the potential TC wastes already regulated?

A.    The regulatory levels of the eight  metals and six
      pesticides remain the same (see Highlight 2 for their
      levels).  These constituents must now be tested using
      the TCLP to determine whether they exceed their
      regulatory levels.  It is important to note that the
      EP and the TCLP may  produce different results;
      wastes  not  hazardous  under   the EP may  be
      hazardous under the TCLP.

Q4.   How does the TCLP differ in approach from the EP
      in identifying the toxicity characteristic?

A.   The primary differences between the TCLP and the
     EP are:    (1) the TCLP  uses two leaching  media
     where the  medium  is determined by the pH  of the
     waste (there is no continual pH adjustment); (2) the
     TCLP requires  the waste  to  be  ground or  milled
     (there is no structural integrity procedure); (3) the
     TCLP requires a shorter extraction  time (18  hours
     for the TCLP versus 24 hours for the EP); and (4)
     the TCLP  is easier to run and the  test  results are
     more easily reproduced.

Q5.  What  is the current status  of the TC rule as  a
     potential ARAR for the Superfund program?

A.   The TC rule was promulgated on March 29,1990.  It
     became a potential ARAR for all decision documents
     (i.e., RODs and action memoranda) signed after that
     date.   For actions  carried out during the interim
     period prior to the effective date (i.e., September 25,
     1990), the  TC rule would not be applicable, but may
     be relevant and appropriate.

Q6.  How will the TC rule affect  Superfund Records of
     Decision (RODs) that have already been signed?

A.   The NCP states that ARARs "freeze" at the time of
     ROD  signature.  See 55 FR 8666, 8757, March  8,
     1990, (to be codified at 40 CFR 300.430(f)(l)(ii)(B)).
     TC requirements were promulgated on  March 29,
     1990,  and  thus  would  not be ARARs  for  RODs
     signed before that  date.  For such  RODs, the TC
     requirements are newly promulgated requirements,
     and  thus  should  be  attained  only  when   EPA
     determines that these requirements are ARARs, and
     that  they   must  be  met  for  the  remedy  to  be
     protective.    Newly  promulgated  or  modified
     requirements  like the TC rule  will be  considered
     during the 5-year review of the remedy, or sooner, if
     appropriate, to determine whether the remedy is still
     protective.   Regions  should review  pre-TC rule
     RODs  to  ensure that any  on-site disposition  of
     wastes still meets  the standard  of protectiveness.
     (This issue will be discussed further in  the

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      forthcoming TC implementation  Fact Sheet.)   If
      EPA determines during the remedy review that the
      TC  requirements   must  be  attained,  a  ROD
      amendment or Explanation of Significant Differences
      (ESD) should be issued.  See 55 FR 8666, 8757
      (March  8,  1990)  (to  be  codified   at  40  CFR
      300.430(0(1 )(ii)(B)).

Q7.   What arc  some potential overall effects of (he TC
      rule on the Siipcrfiind program?

A.    Wastes  containing  any  of  the  newly-regulated
      chemical constituents in the TC rule may be subject
      to   RCRA  regulations  based  on   the   toxicity
      characteristic, regardless of the source of a particular
      waste or whether the waste is a RCRA listed waste.
      In addition, because the TC rule expands the list of
      potential TC wastes that need to be evaluated for the
      characteristic of toxicity,  the amount  of wastes
      considered to be RCRA hazardous wastes at a
CERCLA site will potentially expand. Once a waste
is considered to be a  RCRA hazardous waste, other
RCRA  requirements  may be applicable or relevant
and appropriate, such as closure, minimum technology
disposal restrictions, and the land disposal restrictions.
In addition, remedial  alternatives involving off-site
shipment  of TC  wastes  must  involve Subtitle  C
facilities, rather  than Subtitle D facilities.
NOTICE: The policies set out in this fact sheet are
intended solely as guidance. 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  the
guidance provided in  this fact sheet, or to  act at
variance  with the guidance, based  on an analysis of
specific site circumstances.  The Agency also reserves
the right to change this guidance at any time without
public notice.
     In the near future, OERR will issue another Fact Sheet that discusses technical issues that may arise during the
     implementation of the TC rule at Superfund sites.  The TC implementation Fact Sheet will be Pan II to this
     ARARs Q's & A's Fact Sheet on the TC rule.

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CERCLA Compliance with RCRA Toxicity Characteristics
                     Part II
                                          ~32l

-------
    EPA
                         United States
                         Environmental Protection
                         Agency
Office of
Solid Waste and
Emergency Response
Superfund Publication.
9347.3-11FS
October 1990
                          CERCLA  Compliance
                          with  the RCRA  Toxicity
                          Characteristics  (TC)  Rule:  Pan  n
Office of Emergency and Remedial Response
Hazardous Site Control Division     OS-220
                           Quick Reference Fact Sheet
           CERCLA remedial actions must comply with the requirements of the Resource Conservation and
    Recovery Act (RCRA) when they are determined to be applicable or relevant and appropriate requirements
    (ARARs) unless a waiver is justified. For RCRA Subtitle C hazardous waste requirements to be applicable,
    the CERCLA response action must constitute either treatment, storage, transport, or disposal of a RCRA
    hazardous waste. Therefore, to make determinations about the applicability or relevance and appropriateness
    of RCRA requirements, site managers need to understand  how to identify whether a CERCLA waste is a
    RCRA hazardous waste (including when a waste exhibits the newly promulgated toxicity characteristics (TC)).
    The purpose of this guide, the second  dealing with the TC rule (see AJRARs Qs & As, Compliance with the
    Toxicity Characteristics Rule: Part I, May  1990, Publication 9234.2-08FS) is to provide a general framework
    for managing CERCLA wastes in accordance with the new requirements.
       In order to ensure that all CERCLA response
    actions comply with RCRA requirements that are
    applicable or relevant and appropriate (including
    removal actions when compliance is determined to
    be practicable),  site managers  need  to know
    whether  contamination  at  the  Superfund  site
    includes RCRA hazardous wastes (see Highlight
    1). In determining the presence of RCRA wastes
    that  are  hazardous because they  exhibit  the
    characteristic of toxicity, site managers must  take
    into account a new RCRA regulation, the Toxicity
    Characteristic (TC) rule, which EPA promulgated
    on March  29, 1990 and which  takes effect on
    September 25, 1990.

    THE TOXICITY CHARACTERISTIC RULE

      The TC rule (55  FR  11798, March 29, 1990)
    requires use of the toxicity characteristic leaching
    procedure (TCLP) test in place of the extraction
    procedure (EP) test to determine whether  wastes
    exhibit the characteristic of toxicity.  As with the
    EP, site managers are not required  to test their
    wastes to  determine if they  exhibit the toxicity
    characteristic; knowledge of  the  wastes may be
    sufficient to make this  determination [40 CFR
    261.10(a)(2)(ii)]. Specific knowledge  of CERCLA
    wastes will  not be available at many Superfund
    sites, however, so that testing  may be necessary.
                 Highlight 1
     TYPES OF RCRA HAZARDOUS WASTES

   Listed Wastes:  Wastes from specific processes
   or from specific or non-specific sources that EPA
   has "listed" as RCRA hazardous wastes. These
   wastes carry the waste codes "F, K, P or U." For
   example:

   K015    Still bottoms from the production of
           benzyl chloride.

   Characteristic Wastes. Wastes that exhibit any
   one of four hazardous characteristics (these
   wastes carry a "D" waste code):

   •    Ignkability
   •    Corrosrvity
   •    Reactivity
   •    Toxicity

   Note:    A RCRA hazardous waste must first be a
           solid waste, which is defined by RCRA as
           any material that is disposed of (i.e.,
           abandoned, recycled in certain ways, or
           considered inherently waste-like).
           Exclusions from the definition (e.g.,
           domestic sewage sludge, household
           wastes) arc listed in 40 CFR 261.4(a) and
                                                                         Printed on Recycled Paper

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                                               Highlight 4
     CHARACTERIZATION AND LDR COMPLIANCE OF RCRA CHARACTERISTIC WASTE:  EP vs. TCLP
  Promulgation   Promulgation
    0« TC Rule   of Third Thirds
  March  29, 1990  May 8, 1990
 Effective Date
of Third Thirds
August 8, 1990
   Effective Date
     of TC  Rule
September 25, 1990
         Aprd
                   Mar
                                        July
                                                 August
            EP to teet lor
           characteristic
                               EP or TCLP to teal
                                lor characteristic
                                                          September
                                                                     October
                                                       EP or TCLP to laat
                                                       lor  characterise;
                                                       TCLP to taat for
                                                       compliance wtth
                                                       LDR treetment
                                                       standards
                                                       (EP or TCLP for
                                                        araenlc and leed)
                                                                                          December
                                                                             TCLP to taat tor
                                                                             charactertattc;
                                                                             TCLP to last for
                                                                             compliance with
                                                                             LOR treatment
                                                                             slandarda
                                                                             (EP or TCLP lor
                                                                             arsenic and lead)
Pre-ROD

   During an on-going RI/FS, or in cases where
the investigation is complete but the ROD has not
yet been signed, site managers should assess (either
through use of the TCLP or knowledge of the
waste, which could include EP test results) whether
the wastes being managed are hazardous by toricity
characteristic and determine which, if any, RCRA
Subtitle C requirements may be ARARs for  each
of the alternatives being considered.

Post-ROD

   For  RODs signed before March 29,  1990 that
involve on-site disposal of waste, site managers do
not   have  to  run  the  TCLP  to  determine
applicability  of  Subtitle  C   hazardous  waste
requirements  because  ARARs , generally  are
considered to be "frozen" when a ROD is signed
(although an assessment of the protectiveness  of
the remedy, in light  of a new requirement, should
be made). Because the TC rule simply addresses
whether a waste is a characteristic RCRA
          hazardous waste, its consideration generally should
          not affect determinations made during the RI/FS
          and remedy selection process of the protectiveness
          of a remedy.

             If  an  ongoing or  planned  response  action
          (regardless of when the ROD was signed) involves
          or  will involve off-site disposal of wastes after
          September 25, 1990, the wastes must be evaluated
          for  the  toxicity  characteristic to  ensure  that
          applicable RCRA Subtitle C requirements are met
          at the time of disposal. For example, if wastes that
          exhibit the TC (but were not considered hazardous
          under  the  EP when  tested  earlier) are  being
          disposed  of in an off-site  municipal Subtitle D
          landfill, these wastes can no longer be disposed of
          in this  manner after September 25,  1990.  These
          wastes  will need  to  be disposed of in a RCRA
          Subtitle C facility or treated such that they are no
          longer characteristic prior to disposal in a Subtitle
          D facility. Depending on which of these options is
          chosen, a ROD  amendment or  explanation of
          significant differences  (ESD) would need  to be
          issued.
  NOTICE:  The policies set out in this memorandum are intended solely as guidance. 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
  the guidance provided in this memorandum, or to act at variance with the guidance, 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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Constituents Regulated - The TC rule establishes
regulatory levels  for  an additional  25 organic
chemicals that were  not  previously  regulated
(D018-D043) and  retains the regulatory levels for
the 14 chemicals originally regulated under the old
EP (i.e.,  D004-D017).  Each of the constituents
regulated and their regulatory levels (based on the
TCLP) are shown  in Highlight 2. Because the new
chemicals regulated  are   organic  constituents
commonly found at Superfund sites, it is b'kely that
more wastes at Superfund  sites will exhibit the
RCRA  toxicity characteristic  and  will  require
management in accordance with RCRA Subtitle C
hazardous waste requirements.

   The results of the TCLP and EP tests generally
are expected to be  the same for the original 14
constituents  (i.e., if  a waste  tested  as  non-
characteristic under the  EP test, it would not be
expected to  exhibit the  characteristic under the
TCLP  test as  well).  However,  in some cases,
wastes that were not hazardous under the EP may
be  hazardous  under  the  TCLP.   Appropriate
management  and  compliance options  in  such
situations are discussed in the following section.
RELATIONSHIP OF TC  TO  OTHER  RCRA
REQUIREMENTS

•  LDRs.  As described in Superfund LDR Guide
   #8, Compliance with Third Third Requirements
   under  the LDRs, the Third Third LDR rule
   promulgated  on  May  8,  1990, set  LDR
   treatment standards for the 14 RCRA wastes
   that are identified as hazardous by characteristic
   using the EP toxicity test.  (Note:  compliance
   with the LDR standards for most characteristic
   wastes  is based on  the TCLP.)  For  the eight
   EP  toxic metals P004-D011),  EPA  generally
   set   the  LDR   treatment   standards   as
   concentrations at the characteristic level, with
   the  exception of selenium nonwastewaters, for
   which the treatment standard was set above the
   characteristic  level, and  certain high mercury
   nonwastewaters,   for   which  a   treatment
   technology of mercury retorting was  set.  For
   the  pesticide  wastewaters, a  technology  (e.g.,
   incineration, biodegradation) was specified as
   the   treatment   standard.     For  pesticide
   nonwastewaters, the treatment  standards  were
   set as  total waste concentrations (not extract
Highlight 2
CONSTITUENTS AND REGULATORY LEVELS ESTABLISHED UNDER THE TOXICITY CHARACTERISTIC RULE
Old EP Toxicity Constituents New TC Constituents (conL)
(now regulated under TC)
Waste
Code
D004
D005
D006
D007
D008
D009
D010
D011
D012
D013
D014
D015
D016
D017

Regulated
Constituent
Arsenic
Barium
Cadmium
Chromium
Lead
Mercury
Selenium
Silver
Endrin
Lindane
Methoxychlor
Toxaphene
2,4-D
2,4,5 -TP (sitvex)

Reg. Level
frngAI
5.0
100.0
1.0
5.0
5.0
0.2
1.0
5.0
0.02
0.4
10.0
0.5
10.0
1.0

New TC Constituents

Waste
Code

D018
D019
D020
D021


Regulated
Constituent

Benzene
Carbon tetrachloride
Chlordane
Chlorobenzene


Reg. Level
(ms/l)

0.5
0.5
0.03
100.0

Waste
Code
D022
D023
D024
D025
D026
D027
D028
D029
D030
D031
D032
D033
D034
D035
D036
D037
D038
D039
D040
D041
D042
D043

• Ifo-,
creso
Regulated
Constituent
Chloroform
o-Cresol
m-Cresol
p-Cresol
Total cresols
1.4-Dichlorobenzene
1.2-Dichloroethane
1.1-Dichloroethylcnc
2,4-Dinitrotoluene
Heptachlor (and its epoxidc)
Hexachloro benzene
Hexachloro-1 ,3-butadienc
Hexachloroethane
Methyl ethyl ketonc
Nitrobenzene
Pentachlorophcnol
Pyndine
Tetrachloroethylene
Trichloroethylcne
2,4,5 -Trichlorophenol
2,4 ,6-Trichlorophenol
Vinyl chloride

Reg. Level
(mo/11
6.0
200.0'
200.0'
200.0'
200.0*
7.5
0.5
0.7
0.13
0.008
0.13
0.5
3.0
200.0
2.0
100.0
5.0
0.7
0.5
400.0
2.0
0.2

m-, and p-Cresol cannot be differentiated, total
concentration of 200.0 tug/1 is
used as the
regulatory level.

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   concentrations).  Although some of the total
   waste  concentrations   for   these  pesticide
   nonwastewaters appear to be higher than the
   levels that define the wastes as hazardous, when
   the 20 to 1 dilution factor inherent in the TCLP
   and  EP  protocols  is  considered, no  certain
   relationship between the two standards can be
   stated,  and,  therefore, testing  likely will  be
   necessary to determine whether wastes treated
   to   the   LDR   treatment  standards  remain
   hazardous.

   The 25 new organic constituents are considered
   "newly identified" wastes, and will not be subject
   to  the LDRs  until the Agency  promulgates
   treatment   standards    for  those    wastes.
   Furthermore, no other LDR restrictions (e.g.,
   soft  hammer  requirements,  California  list
   restrictions) apply  to  these newly identified
   wastes; however, they  must be  disposed of in
   accordance  with  other  RCRA   Subtitle  C
   requirements (i.e.,  in  a  regulated Subtitle C
   disposal unit).

   Where wastes not hazardous under the EP test
   fail  the  TCLP test,  these wastes  also  are
   considered RCRA "newly identified" wastes, and
   are not  subject to  LDR  treatment standards.
   Highlight 3 provides  examples of how LDR
   requirements may apply to TC wastes.

   Delisting. Wastes  that have been  delisted may
   still  be considered  hazardous under RCRA if
   they exhibit the TC (or other) characteristic.
   Although this  is not  expected  to occur,  site
   managers who  will be disposing of wastes or
   treatment residuals that have been delisted, or
   are  in the  process of  being  delisted, must
   nevertheless determine (either through testing
   or  knowledge  of the  wastes)  if  their wastes
   exhibit the toxicity characteristic.
COMPLIANCE EVALUATIONS

   As a result of the TC rule, site managers may
need to evaluate whether wastes at a site exhibit
the  toxicity   characteristic   during   the   site
investigation and  implementation  phases  of a
CERCLA  response.   Highlight  4  contains a
timeline outlining  the legally  acceptable options
(established in  the  TC and Third Third  rules) for
using the  EP   and the  TCLP  to test for  the
characteristic of toxicity and compliance with LDR
treatment standards.
                Highlight 3
   EXAMPLES OF LDR REQUIREMENTS
            FOR TC WASTES*

        A TC  waste containing lead (D008) at
        8.0 mg/1 (based on Icachate analysis)
        must be treated (e.g., by using
        immobilization) to comply with the
        LDR treatment standard of 5.0 mg/I
        before land disposal.  Because the LDR
        treatment standard is also  the
        characteristic level, the treated wastes
        would  no longer be considered a
        RCRA hazardous waste and,  therefore,
        disposal in a Subtitle D facility would
        be permissible.

•       The LDRs are not in effect for a waste
        containing benzene (DO 18) at 6.0 mg/1
        (using  a TCLP analysis) that will be
        land disposed because D018 is a newly
        identified waste for which no LDR
        standards exist.  The waste must be
        disposed of as a Subtitle C RCRA
        hazardous waste (unless the waste is
        treated to below the TC level  for
        benzene of 0.5 mg/1).

•       Wastes containing a mixture of lead
        and benzene at  concentrations above
        the TC levels must be treated to meet
        the LDR treatment standard for lead
        before disposal. If, after treatment, the
        waste still exhibits the characteristic for
        benzene, it must be managed  as a
        RCRA hazardous waste. If treatment
        removes the characteristic  for  benzene,
        through immobilization or other
        treatment methods, the treated waste
        may be disposed of in a Subtitle D
        landfill.

NOTE:  If any  of the  14 original EP constituents
        for which standards are in effect are
        contained in soil and debris, site
        managers may want to obtain a
        Treatability Variance to comply with
        the LDRs.  However, depending on  the
        waste's original  (or threshold)
        concentration, attaining the
        characteristic level may be a less
        stringent requirement than obtaining
        the alternate  treatability variance level
        established in Superfund LDR Guides
        #6A and #6B.

* TC effective  date is September 25, 1990.

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CERCLA Compliance with Other Laws Manual,
 CERCLA Compliance with CWA and SDWA
                                   ~33J|

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                          United States
                          Environmental Protection
                          Agency
                          Office of
                          Solid Waste and
                          Emergency Response
Publication 9234.2-06/FS

February 1990
      &EPA
CERCLA Compliance With Other Laws Manual
CERCLA   Compliance
with   the   CWA  and  SDWA
Office of Emergency and Remedial Response
Office of Program Management OS-240
                                                     Quick Reference Fact Sheet
     The 1986 Superfund Amendments and Reauthorization Act (SARA) adopts and expands a provision in the 1985
 National Contingency Plan (NCP) that remedial actions must at least attain applicable or relevant and appropriate
 requirements (ARARs). Section 121(d) of CERCLA, as amended by SARA, requires attainment of Federal ARARs and
 of State ARARs in  State environmental  or facility siting  laws when the State requirements are promulgated, more
 stringent than Federal laws, and identified by the State in a timely manner.

     To implement the ARARs provision, EPA has developed guidance, CERCLA Compliance With Other Laws Manual:
 Parts I and II (Publications 9234.1-01 and 9234.1-02). EPA is preparing a series of short fact sheets that summarize these
 guidance documents.  This Fact Sheet focuses on CERCLA compliance with the Clean Water Act and the Safe Drinking
 Water Act (Chapters 3 and 4, respectively, in Part I).  In addition, it discusses other statutes with provisions relevant to
 surface water or drinking water, such as dredge-and-fill  requirements. The material covered here is based on SARA and
 on policies in the final revised NCP.
                           I. Compliance With The Clean Water Act
     A primary purpose of the Clean Water Act (CWA),
 also known as the Federal Water Pollution Control Act,
 is to restore and maintain the quality of surface waters.
 The CWA regulations that are most likely to be ARARs
 for  Superfund  actions  are the  requirements for:   (1)
 surface-water quality; (2) direct discharges to surface
 waters; (3) indirect discharges to publicly-owned treatment
 works (POTWs); or (4) discharges  of dredge-and-fill
 materials  into  surface waters  (including  wetlands).
 Pollutants are  regulated under  the CWA  according to
 their category (see Highlight 1).

 A.   CWA DIRECT  DISCHARGE REQUIREMENTS
     (NPDES)

     The CWA controls the direct discharge of pollutants
 to   surface  waters   through the  National  Pollutant
 Discharge  Elimination  System  (NPDES)   program.
 NPDES requires permits for direct discharges to surface
 waters.   The permits contain limits based upon either
 effluent  (discharge)  standards,  or,  if they are  more
 stringent,  ambient  (overall water quality)  standards.
 NPDES permits are  issued, monitored, and enforced by
 EPA, or  by a Stale  agency  authorized  by  EPA  to
 administer an equivalent State program.
                             Highlight 1: CATEGORIES OF POLLUTANTS

                             Toxic pollutants - the 126 individual priority
                             toxic pollutants contained in 65 toxic
                             compounds or classes of compounds (including
                             organic pollutants and metals) adopted by EPA
                             pursuant to the CWA section 307(a)(l);

                             Conventional pollutants -- the pollutants
                             classified as biochemical oxygen demand (BOD),
                             total suspended solids  (TSS),  fecal coliform, oil
                             and grease, and pH pursuant  to the CWA
                             section  304(a)(4); and

                             Nonconventional pollutants -- any pollutant not
                             identified as either conventional or toxic in
                             accordance with 40 CFR section 122.21(i)(2).
                             An  on-site discharge from a CERCLA site  to
                         surface  waters must  meet the substantive  NPDES
                         requirements, but need not obtain an NPDES permit nor
                         comply  with  the administrative requirements of the
                         permitting process,  consistent  with CERCLA section
                                                                                 Printed on Recycled Paper

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121(e)(l). On the other hand, an off-site discharge from
a CERCLA site to surface waters is required to obtain an
NPDES permit and to meet both the substantive and the
administrative NPDES requirements.  (See Highlight 2 for
CERCLA activities considered  to be direct  discharges.)
Occasionally, more  than one CWA direct  discharge
requirement  may  potentially apply  to  a surface-water
cleanup (see  Section III for resolution of this issue).
         Highlight 2:  CERCIA ACTIVITIES
    CONSIDERED TO BE DIRECT DISCHARGES

  From a Point Source:

  • On-site Waste Treatment  wastewater is
    discharged from a treatment plant directly into,
    or in very close proximity to, a surface-water
    body through a  discernible conveyance such as a
    pipe, ditch, channel, tunnel, or well.

  • Off-site Treatment:  wastewater from the site is
    piped or otherwise discharged through a
    discernible conveyance to an off-site surface-
    water body.

  • Any Remedial Action:  site runoff is channeled
    directly to a surface-water body through a ditch,
    culvert, storm sewer, or other means.

  From a Nonpoint Source:

  • Unchanneled runoff from a site into surface
    water.
1.    Substantive Requirements

     a.   Ambient Water Quality Standards

     Federal Water Quality Criteria  (WQC)  -  Federal
WQC  are  non-enforceable  guidelines  that  set con-
centrations of pollutants  which,  when  published, were
considered adequate to protect surface waters. The WQC
may be relevant and appropriate'to  CERCLA cleanups
based upon  an evaluation of four criteria set forth  in
CERCLA section 121 (d):  (1) uses of the receiving water
body; (2) media affected; (3) purposes of the criteria; and
(4) current information.  Under CWA section  304, EPA
has developed WQC for:  (1) protection of human health;
and  (2) protection of aquatic life.

     State  Antidegradation  Requirements/Use   Classi-
fications - Under the  CWA, every State is required  to
classify all of the waters within its boundaries according
to its intended use.  EPA regulation requires States to
establish antidegradation  requirements.   As a  result,
discharges that result from CERCLA response actions to
high-quality receiving  waters could  be prohibited  or
limited, unless an ARAR  waiver  (such  as  inconsistent
application  by  the  State)  is  available.   State anti-
degradation requirements may be applicable to both point
and  nonpoint  source discharges.   (A point source is a
discernible conveyance such  as  a  pipe,  ditch,  channel,
tunnel or well from which pollutants may be discharged.)

     b.   Effluent Standards

     Technology-Based Limitations - CWA section 301(b)
requires that,  at a minimum, all direct discharges meet
technology-based limits. Technology-based requirements
for conventional pollutant discharges include application
of the best conventional pollutant control  technology
(BCT).    For  toxic and  nonconventional  pollutants,
technology-based requirements include the best available
technology economically  achievable  (BAT).   Because
there are no national effluent limitations regulations for
releases from CERCLA sites, technology-based treatment
requirements are determined on a case-by-case basis using
best  professional judgment (BPJ) to determine BCT/BAT
equivalent  discharge requirements.   Technology-based
limits for  water discharges are often expressed as con-
centration levels. Technology-based limits are applicable
to direct discharges from a point source.

     State Water  Quality Standards  (WQS) -  Under
CWA  section 303, States  must develop water  quality
standards.  State  WQS  may be numeric or  narrative.
Where State WQS  are narrative, either the whole-effluent
or the chemical-specific approach is generally used as the
standard of control.  State WQS  may be applicable to
both point and nonpoint source discharges.

2.   Administrative Requirements

     An  off-site  direct  discharge  from a CERCLA
response action to surface waters  requires  an NPDES
permit. The requirements for obtaining a permit include:

•    Certification  Requirements:   the applicant  for  an
     NPDES permit must receive  certification from the
     State that the discharge will be in compliance with
     CWA sections 301,  302, 303, 306, and  307;

•    Permit Application  Requirements:  an application
     for an NPDES permit for a new discharge must be
     made  180 days  prior  to  the actual discharge;
     pollution conirol  equipment  must  be  installed
     before the new discharge begins;  and compliance
     must  be  achieved within the shortest feasible time,
     not to exceed 90 days;

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B.
Reporting Requirements: the NPDES permit requires
a discharger  to maintain records and  to  report
periodically on the amount and nature of pollutants
in the discharged wastewaters; and

Public Participation Requirements: the NPDES dis-
charge limitations and requirements developed for a
CERCLA site are subject  to public participation re-
quirements,  including  public  notice  and  public
comment.

CWA INDIRECT DISCHARGE REQUIREMENTS
(Pretreatment  Program for Nondomestic  Users  of
POTWs)
    Under CWA, all discharges by nondomestic users into
POTWs must meet pretreatment standards.  The purpose
of pretreatment standards is to avoid the introduction of
pollutants into municipal wastewater treatment plants that
pass through, interfere with, or are otherwise incompatible
with, such treatment works.  The pretreatment standards
are found in the national pretreatment program and in
all State and local pretreatment regulations.  There are
three types of pretreatment standards (see Highlight 3).

    Any discharge from a CERCLA site to a POTW is
considered an off-site activity.  It is, therefore, subject to
both the substantive and administrative requirements of
the national  pretreatment program, and to all applicable
State and local pretreatment regulations.
     HJghUght3: TYPES OF PBJSTREAtMENT
   • Prohibited discharge standards apply to all
    nondomestic discharges and prohibit pollutants
    that cause fire or explosions, corrosion,
    obstructions, high temperatures at POTWs,
    problems with worker  health and safety, or
    interference.

   • Categorical pretreatment standards  are national,
    technology-based effluent limitations developed
    by EPA for certain industrial categories,
    Currently no national standards exist for
    CERCLA discharges.

   • Local limits are developed by qualifying POTWs,
    and are designed to ensure compliance with
    specific environmental standards and criteria at
    the local level.
 1.   Discharge of CERCLA Wastewater to a POTW

     Wastewater from a CERCLA site may be sent to a
 POTW  that  either has  or  does not  have  an  EPA-
 approved  pretreatment  program.   A POTW with  an
 approved   pretreatment  program  already   has  the
 mechanisms necessary to ensure that discharges, including
 those from a CERCLA site,  comply with  applicable
 pretreatment  standards  and requirements.  Remedial
 Project  Managers (RPMs)  must  evaluate  a POTW
 without an approved pretreatment program to determine
 whether it has sufficient mechanisms for meeting  the
 requirements  of the national pretreatment program when
 accepting CERCLA wastewater.

     The determination of whether the POTW can accept
 CERCLA wastewater should be made during  the  RI/FS
 stage of the remedial action.  Factors for determining a
 POTW's ability to accept CERCLA wastewater include:

 •    The   quantity   and  quality  of  the  CERCLA
     wastewater and its compatibility with the POTW;

 •    The  impacts of a  CERCLA  discharge  on  the
     POTW's treatment  system and on  its  continued
     compliance with its NPDES permit;

 •    The POTW's record of compliance with its NPDES
     permit and pretreatment program requirements  to
     determine if the POTW is a suitable disposal site
     for the CERCLA wastewater;

 •    The potential for  volatilization of the wastewater
     constituents  at the  CERCLA  site, while moving
     through  the sewer system,  or at  the POTW, and  its
     potential impact on  air  quality;

 •    The potential for ground-water contamination from
     the transport  of  the  CERCLA  wastewater   or
     impoundment at the POTW,  and the  need  for
     ground-water monitoring;

 •    The potential effect of the CERCLA wastewater
     upon  the POTW's  discharge  as  evaluated   by
     maintenance  of water  quality  standards in the
     POTW's receiving waters;

 •    The POTWs knowledge of and compliance with
     any RCRA requirements or requirements of other
     environmental statutes; and

 •    The  various  costs  of  managing  the  CERCLA
     wastewater, including all  risks,  liabilities, permit
     fees, etc.

 In  addition  to these  factors, off-site  discharges   of
CERCLA  wastewaters may only  be made to facilities
(generally POTWs) in compliance with the CERCLA off-
site policy (OSWER Directive 9834.11, November 1987,

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at p.  11; see also 40 CFR 300.440 (proposed), 53  FR
48218, November 29, 1988).

2.  Applicable POTW Control Mechanisms (Permits or
    Orders)

    It is  likely that  RPMs will  have to obtain from
POTWs  permits  or   orders  for  CERCLA  remedies
involving indirect discharges to such  POTWs.  POTWs
have the authority to limit or reject wastewater discharges
and  to require  dischargers  to  comply with  control
mechanisms such as permits or orders.  These permits or
orders contain applicable pretreatment standards including
local discharge prohibitions and numerical discharge limits.
In addition to incorporating pretreatment limitations and
requirements, the control mechanisms  may also include:
(1) monitoring  and reporting requirements to ensure
continued  compliance   with   applicable  pretreatment
standards; (2) spill prevention programs to prevent  the
accidental discharge of pollutants to POTWs (e.g., spill
notification requirements); and (3) other requirements.

C.  DREDGE-AND-FILL REQUIREMENTS

    Any discharge of dredge-and-fill  material  into  the
navigable waters of the United Slates, including wetlands,
is subject  to the  requirements  of  certain regulatory
authorities (see Highlight 4). These requirements ensure
that  impacts  on  aquatic  ecosystems  are evaluated.
CERCLA activities that  may  be considered dredge-and-
fill activities include, but are not limited to, the following:

•   Dredging of  contaminated lake,  river, or marine
    sediments;

•   Disposal of contaminated soil, waste material, well-
    drilling  materials, or dredged  material in surface
    water, including most wetlands;

•    Capping of a  site containing wetlands;

•    Construction of berms and levees  to contain wastes;

•    Stream channelization; and

•    Excavation  to contain effluent.

D.  COORDINATION  BETWEEN SUPERFUND AND
     WATER OFFICES

     RPMs  are  required  to  identify potential  CWA
ARARs when considering a discharge to surface  waters,
a  discharge to  a  POTW, or dredging of surface-water
sediments. In order to identify and communicate ARARs
in a timely manner, each  EPA Region should establish
procedures between  the  Regional Superfund and Water
offices.  The Superfund  and the Water offices  should
coordinate their activities at the  following stages of the
remedy selection process:
Highlight 4:  DREDGE-AND-FILL AUTHORITIES

Dredge-and-fill activities are regulated under the
following authorities:

•  Section 10 of the Rivers and Harbors Act
   prohibits the unauthorized obstruction or
   alteration of any navigable water of the  United
   States.

•  Section 404 of the Clean Water Act regulates
   the discharge of dredged or fill material to
   waters of the United States.  It applies to all
   discharges of dredged or fill material to U.S.
   waters, regardless of the condition of the
   wetland.  While section 404, when applicable,
   requires consideration of any practicable
   alternatives, there is no duty to mitigate
   adverse effects from previous dischargers.
   However, it may be appropriate in some
   circumstances to protect the environmental
   values of the site.

•  Section 103 of the Marine Protection Research
   and Sanctuaries Act regulates ocean discharges
   of materials dredged from waters  of the United
   States.

•  40 CFR Part 6, Appendix A contains EPA's
   regulations for implementing Executive Order
   11990, Protection of Wetlands,  and Executive
   Order 11988, Roodplain Management, which
   require Federal agencies, wherever possible,  to
   avoid or minimize adverse impacts of Federal
   actions upon wetlands and floodplains
   (including dredge-and-fill activities).  The
   proposed plan and selected remedial action
   should be evaluated in light of these
   requirements and the alternative modified, if
   necessary, to avoid or minimize adverse
   impacts.
   Preliminary Assessment/Site  Investigation.   For
   planning purposes, copies of pertinent  documents
   may  be sent to the Water  offices (Regional and
   State, if appropriate) to promptly notify them  of
   possible  remedial  actions involving discharges  to
   surface waters.

   Remedial Investigation/ Feasibility  Study.    To
   provide and obtain additional information regarding
   the site  and the  potential  contamination of  the
   surface water, copies of the RI/FS Workplan (draft
   and final), the RI/FS Report, and the Proposed Plan
   may be sent to the Water offices.  In addition, close
   coordination should occur during the  initial and
   detailed screening  of alternatives.

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 •    Selection of Remedy/Record of Decision. To ensure
     that  the  selected  remedy attains all CWA ARARs
     (or other health-  or risk-based levels when ARARs
     are waived  or do not  exist) and  is adequately
     documented, the Water offices should be contacted
     for additional informaiion.
      Remedial Design/Remedial Action. To help ensure
      that the selected remedy will attain all ARARs, the
      Water  offices  should  be consulted  during the
      RD/RA.
                         II.  Compliance With The Safe Drinking Water Act
     The Safe Drinking Water Act of 1974 (SDWA), as
most recently amended in 1986, requires EPA to establish
regulations to protect  human health from contaminants
in drinking water. To achieve this, EPA has developed:
(1) drinking water standards; (2) a permit program for the
underground   injection of  wastes  (the  Underground
Injection Control (UIC) Permit Program); and (3) ground-
water protection programs (the Sole  Source  Aquifer
Program and the Wellhead Protection Program).

A.   DRINKING WATER STANDARDS

I.   National Primary  Drinking Water Regulations

     The drinking water  regulations  are  applicable  to
public water systems (defined as  systems) having at least
15 service connections  or  serving at least 25 year-round
residents.   National  primary drinking water regulations
consist of  contaminant-specific  standards  known   as
Maximum Contaminant Levels (MCLs), which are set as
close as feasible to  Maximum Contaminant Level Goals
(MCLGs) (see Highlight 5).  "Feasibility" is based  upon
best technology and it  takes cost into consideration.
   Highlight 5: DEFINITIONS OF MCLs AND MCLGs

   Maximum  Contaminant  Levels  are enforceable
   standards that apply to specified contaminants which
   EPA has  determined have an adverse  effect on
   human  health above certain levels.

   Maximum  Contaminant  Level  Goals  are   non-
   enforceable health-based goals that are established at
   levels at  which no  known  or  anticipated adverse
   effects on the health of persons occur and which will
   allow an adequate margin of safety.
     CERCLA  section 121(d)(2)(A)(i) requires  on-site
CERCLA remedies to attain standards or levels of control
established under the SDWA (i.e., MCLs, where they are
applicable or relevant and appropriate). CERCLA section
 121(d)(2)(A) also requires  on-site remedies  to  attain
 MCLGs where  relevant  and  appropriate under  the
 circumstances of the release.  EPA believes that MCLGs
 set at levels above zero should be attained where relevant
 and appropriate as cleanup levels for ground or surface
 waters that are current or potential .sources of drinking
 water.   If the MCLG is  equal to  zero, the Agency
 believes it  is not appropriate for setting cleanup  levels,
 and the corresponding MCL  will be the potentially
 relevant and  appropriate  requirement.    (In  some
 instances, MCLs  will also be applicable if the water  is
 delivered through a public water supply system having the
 requisite number of  service connections and year-round
 customers mentioned above.)

 2.   Secondary Drinking Water Regulations

     Secondary  drinking  water  regulations consist
 primarily of  Secondary Maximum Contaminant Levels
 (SMCLs)  for   specific    contaminants   or   water
 characteristics that may affect the aesthetic qualities of
 drinking water  (i.e., color,  odor, and taste). SMCLs are
 nonenforceable limits intended  as guidelines for use by
 States  in regulating water supplies.  SMCLs are guides
 for public water systems and are typically measured  at the
 tap of the user of the system.   However, SMCLs  are
 potential relevant and appropriate requirements in States
 that have adopted SMCLs  as additional drinking-water
 standards.

 B.   UNDERGROUND INJECTION  CONTROL
     PROGRAM  (UIC)

     Under the UIC program, owners and operators of
 certain classes of underground injection wells are required
 to obtain and adhere to the  requirements  of operating
 permits.  The permit applicant  must  prove to  the State
or  Federal permitting authority that  operation of  the
 underground  injection  will not  endanger drinking-water
sources.  For regulatory and reporting purposes, under-
ground  injection  wells are  divided into five categories.
 Class I, Class IV, and Class V wells are most likely to be
associated with CERCLA response actions (see Highlight
6).

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       Highlight 6:  DESCRIPTION OF CLASS
                I, IV, AND V WELLS

   • Class i wells are used to  inject industrial,
     ha/ardous, and municipal wastes beneath the
     lower most formation containing, within one-
     quarter mile (1/4) of the well bore, an
     underground drinking-water source.

   • Class IV wells are used to inject hazardous or
     radioactive waste into or above a formation
     containing, within one-quarter mile (1/4) of the
     well bqte, an  underground drinking-water source.

   • Class v wells include all wells not incorporated
     in Classes  I through IV, and are typically
     recharge wells, septic system wells, and shallow
     industrial (non-hazardous) disposal wells.
     An  abandoned or  failed Class  I  and  Class  IV
injection well facility could be a site of a CERCLA action,
or  the   CERCLA  response  action  may  include  the
reinjection of  treated ground water.    In  addition, a
CERCLA  cleanup  could  involve  the  reinjection  of
nonhazardous waste water  to a Class V well.  In each
case,  requirements  under  the UIC  program  may  be
potential ARARs.

1.    Substantive Requirements

     a.   The SDWA UIC Provisions

     The injection of hazardous wastes from CERCLA
sites into wells constructed both on-site or off-site must
meet  the substantive requirements of the UIC program.
In general, no owner or operator may construct, operate,
or maintain an injection well in a manner that results in
the contamination of an underground source of drinking
watei at  levels that  violate MCLs  or otherwise affect  the
healtn of persons.  While the UIC regulations expressly
refer to MCLs (40 CFR Parts  142,  144), non-zero MCLGs
will  generally  be  potential  relevant  and  appropriate
requirements  toi CERCLA cleanups involving an on-site
injection well containing ground water potentially used for
drinking  water.  In addition, all owners and operators of
undergiound  ni|ection  wells are subject to UIC closure
requiiemenis   Finally, injection of hazardous wastes into
a Class  1 well requires compliance with additional UIC
constlucuon,  operating, and monitoring requirements.

     !).   i'he Resource and Conservation and Recovery
         xci  -, KCUA)

     i.'ii.i. i  -.ei lion 3020 of  RCRA,  the  injection  of
IM/.IIJi>ir, -*,;s!i> into Class IV injection wells  is banned
li'i]^  •>'!) !i|1'  injixtion is a  CERCLA response action
or  a RCRA  corrective action;  (2)  the contaminated
ground water is treated to substantially reduce hazardous
constituents prior to each injection; and (3) the  response
action or corrective action is sufficient  to protect human
health and  the environment upon completion.  These
requirements are potential ARARs for the reinjection of
hazardous waste into Class IV wells in  a pump-and-treat
remediation system.

     Because reinjection of treated contaminated ground
water at CERCLA sites is specifically addressed in RCRA
section 3020, RCRA land disposal restrictions  (sections
3004(f),  (g) and  (m))  are not applicable   to  each
reinjection or to the  conclusion  of  a pump-and-treat
remediation. EPA  also expects  that generally  they will
not be found to be relevant or appropriate requirements.
Therefore,  the  best demonstrated available technology
(BOAT)  generally will not have  to  be met   for each
reinjection or at the  conclusion  of  a pump-and-treat
remediation involving a  Class IV  well.  (See  the Don
Clay, AA (OSWER), Memorandum on  the "Applicability
of Land Disposal Restrictions to RCRA and CERCLA
Groundwater Treatment Reinjection," December  27,1989,
OSWER Directive 9234.1-06).

     RCRA also  requires the owner or operator of a
Class I UIC well to comply with RCRA corrective action,
for releases from solid waste management units, if  the
permit was issued after November 8, 1984 (see  40 CFR
270.60).

2.   Administrative Requirements

     Off-site CERCLA actions  must  comply  with  the
following   administrative  requirements  of  the  UIC
Program:

•    Application requirements.    All  existing  and  new
     underground injection wells must apply for  a permit
     unless an existing well is authorized by rule for  the
     life of the well;

•    Inventory  and Other Information  Requirements.
     Existing  underground   injection  wells  that   arc
     authorized by rule are required to submit inventory
     information to EPA or an  approved State.  Other
     information may be required to determine  whether
     injection  will endanger an  underground source of
     drinking water; and

•    Reporting Requirements. Owners and operators o!
     Class I wells are required to  maintain records and
     report quarterly on the  characteristics of  injection
     fluids  and ground-water   monitoring  wells  and
     various operating  parameters (e.g., pressure, flow
     rate, etc.).

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NOTE: Off-site CERCLA actions must also comply with
CERCLA requirements for  off-site transfers of waste.
(OSWER Directive  9834.11, November  1987;  53  FR
48218, November 29, 1988).

C.   SOLE SOURCE AQUIFER (SSA) PROGRAM

     The SDWA permits EPA to designate as "sole source
aquifers" any aquifer that is the sole source or principal
drinking-water  source  for  an  area  and  which,  if
contaminated, would present  a significant  hazard  to
human health. Under the SSA program, Federal financial
assistance  (from any  Federal  Agency)   may  not  be
committed for any project that  may contaminate a sole
source aquifer so as  to create a significant public health
hazard.  Generally, CERCLA activities would not in and
of themselves increase pre-existing contamination of sole
source aquifers.  Therefore, it is unlikely  that CERCLA
activities would be subject  to restrictions on Federal fin-
ancial assistance.  Nonetheless, a review of any potential
problems associated with sole source aquifers should be
part of the RI/FS process.

D.   WELLHEAD PROTECTION PROGRAM

     The 1986 amendments to the SDWA direct States
to develop and implement programs to  protect wells  and
recharge areas that supply public drinking-water systems
from  contaminants  that flow into the well from  the
surface and subsurface. Because the Wellhead Protection
program is designed to be run by the States, the program
will not involve Federal ARAR provisions. Nonetheless,
State   Wellhead  Protection  programs  may  impose
requirements that may be ARARs for CERCLA response
actions.  RPMs should be  aware of State Wellhead
Protection program  requirements and should coordinate
with the  appropriate Regional  drinking-water program
personnel assigned to the Wellhead Protection program.
                III.  RESOLUTION OF  POTENTIALLY CONFLICTING ARARS
     For relevant and appropriate requirements, the very
availability of a certain  requirement often suggests that
other requirements, which  are less well suited  to  the
circumstances, are not relevant and appropriate.  Several
conceivable   conflicts  among   potential  relevant  and
appropriate requirements concerning surface water may be
resolved as follows:

•    Where  surface  water serves as actual  or potential
     drinking-water source and  there are no impacts to
     aquatic organisms, the following requirements should
     be  attained where relevant and appropriate:

     (1)  State WQS  that are  designated for drinking-
         water use, and  are more stringent than Federal
         standards, or specific to the uses of that water
         body; or, if none

     (2)  Non-zero MCLGs; or, if none
     (3)  MCLs; or, if none

     (4)  Federal WQC adjusted for drinking-water use.

     For non-drinking surface water and there are no
     impacts to aquatic organisms, attain where relevant
     and appropriate,  the stricter of:

     (1)  State WQS;  or

     (2)  Technology  Based Limitations.

     For  non-drinking surface water  and  there  are
     impacts to aquatic organisms,  attain, where relevant
     and appropriate:

     (1)  State WQS;  or, if none

     (2)  Federal WQC.

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Discharge of Wastewater from
 CERCLA Sites into POTWs

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                                                            9330.2-4
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                      WASHINGTON, D.C. 20460
                          APR  151986
MEMORANDUM

SUBJECT:  Discharge of Wastewater  from CERC

FROM:     Henry L. Longest II, Director
          Office of Emergency and  Remedii

          Rebecca Hanmer, Director
          Office of Water Enforcement and Permits
          Gene A. Lucero, Director   VJL *\
          Office of Waste Programs Enforcement

TO:       Waste Management Division Directors
          Regions I - X

          Water Management Division Directors
          Regions I - X


     A number of emergency removals and remedial cleanup actions
under CERCLA will involve consideration of publicly owned treat-
ment works (POTWs) for discharge of wastewater.  The current
off-site policy (issued on May 6, 1985) does not address the set
of concerns and issues unique to POTWs that must be evaluated
during the Remedial Investigation and Feasibility Study (RI/FS)
for discharge of CERCLA wastewater to POTWs.

     Recently, we have had meetings with  representatives of the
Association of Metropolitan Sewerage Authorities (AMSA) to discuss
technical and policy concerns related to  the POTW/CERCLA issue.
This memorandum is to highlight some of the major points under
consideration which were shared with AMSA at their recent Winter
Technical Conference.  The Agency intends to develop policy on
the use and selection of POTWs for CERCLA wastewater.  Your
comments are sought on the proposed criteria set forth herein.
These criteria may be useful in evaluation of POTWs for response
actions (fund financed or responsible party financed) to be taken
in the interim.

     Our position is that no CERCLA discharges to a POTW should
occur unless handled in * manner demonstrated to be protective
of human health and the environment.  Full compliance with all
applicable requirements of the Clean Water Act (CWA), the
Resource Conservation and Recovery Act (RCRA), and any other
relevant or appropriate environmental statutes will be necessary .

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                                                               9330.2-4
                               -  2  -


      The  national pretreatment program,  under  the  Clean  Water  Act,
 requires  an analysis to determine  whether  the  discharge  of  an
 industrial  user of a POTW may pass through the POTW to cause
 receiving water quality problems or  may  interfere  with POTW
 operations  (including sludge disposal).  If the analysis suggests
 that limits on the industrial user's discharge are needed to pre-
 vent pass through or interference, local limits or other safe-
 guards, as  necessary, must be established  by the POTW and/or the
 NPDES permitting authority.  The national  pretreatment program
 requirements apply to the introduction of  all  non-domestic
 wastewater  into any POTW, and include, among other things,  the
 following elements:

      o  Prohibited discharge standards - prohibit  the intro-
         duction of pollutants to the POTW  which are ignitable,
         corrosive, excessively high  in temperature, or which
         may cause interference or  pass through at  the POTW.

      o  Categorical discharge standards  -  include  specific  pre-
         treatment standards which  are established  by EPA for the
         purpose of regulating industrial discharges in specific
         industrial categories.

      o  Local limits - where no  categorical standards have  been
         promulgated or where more  stringent controls are necessary.

      POTWs  under consideration as  potential receptors of CERCLA
 wastewaters may include those POTWs  either with or without  an
 approved pretreatment program.  POTWs with an  approved pretreat-
 ment program are required to have  the mechanisms necessary  to
 ensure compliance by industrial  users with applicable pretreatment
 standards and requirements.*  POTWs without an approved  pretreat-.
 ment program must be evaluated to  determine whether sufficient
 mechanisms  exist to allow the POTW to meet the requirements of
 the national pretreatment program  in accepting CERCLA wastewaters.
 As noted above, pass through and interference are  always prohibited,
 regardless  of whether a POTW has an approved pretreatment program.
 POTWs without an approved pretreatment program must therefore
 have mechanisms which are adequate to apply the requirements of
 the national pretreatment program to specific situations.
*POTWs with approved pretreatraent programs must, among other
 things, establish procedures to notify industrial users (lUs) of
 applicable pretreatment standards and requirements, receive and
 analyze self-monitoring reports from lUs, sample and analyze
 industrial effluents, investigate noncorapliance, and comply with
 public participation requirements.

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                                                               9330.2-'
                               -3-


    Determination of a POTW's ability to accept CERCLA wastewater
as an alternative to on-site treatment and direct discharge to
receiving waters must be made during the Remedial Investigation/
Feasibility Study (RI/FS) process.  During the remedial alternatives
analysis, the appropriateness of using a POTW must be carefully
evaluated.  Water Division officials and their state counterparts
should participate in the evaluation of any remedial alternatives
recommending the use of a POTW, and should concur on the selection
of the POTW.

     If an alternative considers the discharge of wastewater from
a CERCLA site into a POTW, the following points should be evaluated
in the RI/FS prior to the selection of the remedy for the site:

     o  The quantity and quality of the CERCLA wastewater and its
        compatibility with the POTW (The constituents in the
        CERCLA wastewater must not cause pass through or inter-
        ference, including unacceptable sludge contamination or
        a hazard to employees at the POTW; in some cases, control
        equipment at the CERCLA site may be appropriate in order
        to pretreat the CERCLA discharge prior to introduction to
        the POTW).

     o  The ability (i.e., legal authority, enforceable mechanisms,
        etc.) of the POTW to ensure compliance with applicable
        pretreatment standards and requirements, including monitor-
        ing and reporting requirements.

     o  The POTW's record of compliance with its NPDES permit
        and pretreatment program requirements to determine if
        the POTW is a suitable disposal site for the CERCLA waste-
        water.

     o  The potential for volatilization of the wastewater at the
        CERCLA site and POTW and its impact upon air quality.
                                                     *

     o  The potential for groundwater contamination from trans-
        port of CERCLA wastewater or impoundment at the POTW, and
        the need for groundwater monitoring.

     o  The potential effect of the CERCLA wastewaters upon the
        POTW's discharge as evaluated by maintenance of water
        quality standards in the POTW'a receiving waters,
        including the narrative standard of "no toxics in toxic
        amounts".

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                                                               9330.2-

                              - 4 -
     o  The POTW's knowledge of and compliance with any applicable
        RCRA requirements or requirements of other environmental
        statutes  (RCRA perroit-by-rule requirements may be trig-
        gered  if  the POTW receives CERCLA wastewaters that are
        classified as "hazardous wastes* without prior mixing
        with domestic sewage, i.e., direct delivery to the POTW
        by truck, rail, or dedicated pipe; CERCLA wastewaters are
        not all necessarily considered hazardous wastes; case by
        case determinations have to be made).

     o  The various costs of managing CERCLA wastewater, including
        all risks, liabilities, permit fees, etc. (It may be
        appropriate to reflect these costs in the POTW's connection
        fees and  user charge system).

     Based upon consideration of the above elements, the discharge
of CERCLA wastewater to a POTW should be deemed inappropriate if
the evaluation indicates that:

     o  The constituents in the CERCLA discharge are not com-
        patible with the POTW and will cause pass through, inter-
        ference,  toxic pollutants in toxic amounts in the POTW's
        receiving waters, unacceptable sludge contamination, or a
        hazard to employees of the POTW.

     o  The impact of the transport mechanism and/or discharging of
        CERCLA wastewater into a POTW would result in unacceptable
        impacts upon any environmental media.

     o  The POTW  is determined to be an unacceptable receptor
        of CERCLA wastewaters based upon a review of the POTW's
        compliance history.

     o  The use of the POTW is not cost-effective.

     If consideration of the various elements indicates that the
discharge of CERCLA wastewater to a POTW is deemed appropriate:

     o  Th«re should be early public involvement, including
        contact with POTW officials and users, in accordance
        with the CERCLA community relations plan and public
        participation requirements.

     o  The NPDES permit and fact sheet may need to be modified
        to reflect the conditions of acceptance of CERCLA waste-
        waters; permit modification may be necessitated by the
        need to incorporate specific pretreatment requirements,
        local limits, monitoring requirements and/or limitations
        on additional pollutants of concern in the POTW's dis-
        charge or other factors.

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                                                                9330.2--


                               -5-
     Policy to be developed in the future will apply to all
removal, remedial, and enforcement actions taken pursuant to
CERCLA and Section 7003 of RCRA.  We would appreciate your feed-
back on this memorandum and any experience in the use of POTWs
for CERCLA removal or remedial actions that you have to offer.

     If you have any comments or questions on this issue, please
submit written comments to the workgroup co-chairs:  Shirley Ross
(FTS-382-5755) from the Office of Emergency and Remedial Response,
or Victoria Price (FTS-382-5681) from the Office of Water.

cc:  Ed Johnson
     Russ Wyer
     Tim Fields
     Steve Lingle

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            ARARs Q's and A's:
Compliance with Federal Water Quality Criteria

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    r/EPA
                          Unrted States
                          Environmental Protection
                          Agency
                            Office of
                            Solid Waste and
                            Emergency Response
Publication 9234.2-09/FS
June 1990
ARARs  Q's  &  A's:
Compliance  With  Federal Water
Quality  Criteria
 Office of Emergency and Remedial Response
 Office of Program Management OS-240
                                                        Quick Reference Fact Sheet
    Section 121(d) of CERCLA. as amended by the 1986 Superfimd Amendments and Reauthorization Act (SARA),
requires that on-site remedial actions must at least attain Federal and more stringent State applicable or relevant and
appropriate requirements (ARARs) upon completion of the remedial action. The 1990 National Contingency Plan (NCP)
requires compliance with ARARs during remedial actions as well as at completion, and compels attainment of ARARs
during removal actions whenever practicable.  See NCP, 55 FR 8666, 8843 (March 8,  1990) (to be codified at 40  CFR
section 300.414(i)), and 55 FR 8666, 8852 (March 8, 1990) (to be codified at 40 CFR 300.435(b)(2)).

    To implement the ARARs provision, EPA has developed guidance, CERCLA Compliance With Other Laws Manual:
Parts land II (Publications 9234.1-01 and 9234.1-02), and has provided training to Regions and States on the identification
of and compliance with ARARs.  These "ARARs Q's and A's" are part of a series of Fact Sheets that provide answers to
a number of questions that arose in developing ARAR policies, in ARAR training sessions, and in identifying and complying
with ARARs at specific sites. This  particular Q's and A's Fact Sheet addresses compliance with Federal Water Quality
Criteria (FWQC) as ARARs.
Qt.  What are the Federal Water Quality Criteria?

A   Federal  Water  Quality  Criteria  (FWQC)  are
     nonenforceable  guidance established by  EPA for
     evaluating toxic effects on human health and aquatic
     organisms.  FWQC are used or considered  by the
     States in setting their water quality standards (WQSs)
     for surface water. State WQSs consist of designated
     uses (i.e.,  fishing, swimming,  drinking  water)  and
     criteria for pollutants set at levels that are protective
     of those uses.  State WQSs are regulatory require-
     ments, and permit limits are established to  ensure
     that the State use designations and criteria are met

     There are two  categories of FWQC that relate to
     human exposure:

     •  Ingestion of contaminated drinking water  and
        contaminated fish; and,

     •  Ingestion of contaminated fish alone.
    FWQC have been published for many different con-
    taminants (both noncarcinogens and carcinogens).
    FWQC for  noncarcinogens are generally set above
    zero, and address chronic and toxic effects.  FWQC
    for carcinogens are recommended at zero, although a
    range of concentrations corresponding to incremental
    cancer risks of 10'5, 10"*, and 10"7 are provided for
                               informational purposes and do not represent an
                               Agency judgement on an "acceptable" risk level.

                               In addition to the FWQC published for two human
                               exposure scenarios, FWQC are published for four
                               other categories. They consist of acute and chronic
                               toxicity for fresh and saltwater aquatic life.

                          Q2.  Do  FWQC   constitute  potential  ARARs  for
                               Superfund sites?

                          A.   Yes, Although compliance with FWQC is not legal-
                               ly required at non-Superfund sites, and they are not
                               "legally applicable" requirements under CERCLA,
                               FWQC may be ARARs when found by the Agency
                               to be relevant and appropriate (see  final  NCP
                               preamble, 55  FR  at  8742   (March 8,  1990).
                               Specifically,  CERCLA section  121(d)(2)(A) states
                               that every remedial action "shall require a level or
                               standard of control which at least attains ... water
                               quality criteria established under section 304 or 303
                               of the Clean Water Act, where such ... criteria are
                               relevant and appropriate under the circumstances of
                               the release or threatened release."

                          Q3.  When are FWQC best suited  to serve as cleanup
                               standards?

                          A   FWQC for specific pollutants should generally be
                               identified as ARARs for surface-water cleanup if

                                                 Printed on Recychd Paper

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    particular circumstances exist at the site that FWQC
    were specifically designed to protect, unless the State
    has promulgated  WQSs  for the specific pollutants
    and  water  body  at  the  site.   Standards that  are
    specifically  suited  to  site  circumstances  should
    generally be used to establish cleanup levels at sites
    where  those circumstances are present.1  A State
    WQS may be a site-specific adaptation of a FWQC.
    In such  cases,  they  are generally the appropriate
    standards for the  specific pollutant and water body,
    rather than the FWQC.  In the absence of any State
    WQSs specific  to the pollutant and water body of
    concern, FWQC may be ARARs for surface-water
    bodies when:

    •   Protection of aquatic life is a concern. Examples
        include sites where:

             adverse impacts to aquatic life are foreseen
             at the site; or

             the surface-water bodies are designated for
             the protection of aquatic life.

    •   Human  exposure   from  consumption   of
        contaminated fish is a concern.

    For sites where protection of aquatic life is a concern,
    the  FWQC  for  fresh  or  saltwater  aquatic  life
    (whichever is  pertinent) may be ARARs.  When
    human exposure from consumption of contaminated
    fish is a concern (e.g., sites that require remediation
    of recreational water  bodies, saltwater bodies, or
    estuaries used for fishing), the FWQC published for
    human exposure  from consumption of fish may be
    ARARs for the sites. Examples include sites where
    the surface-water bodies are used for fishing and an
    exposure route consists of consumption of contam-
    inated fish from the site.

    Note,  however, that if any of the above-mentioned
    water bodies are also used for drinking, standards for
    acceptable levels  of contaminants in drinking water
    may also be potential ARARs for the site (e.g., non-
    zero  maximum contaminant  level goals (MCLGs),
    maximum contaminant  levels (MCLs), State WQSs
    designated  for drinking-water  use,  and  FWQC
    adjusted to reflect cleanup standards for drinking
    water).  (Question #5 of this fact sheet addresses
    how  to  determine  the ARAR in these situations,
    when  there are  both drinking-water and environ-
    mental concerns at the site.)
1 See proposed NCP preamble, 53 FR at 51442 (Dec. 21, 1988), and the
final NCP  preamble. 55 FR at 8755 (March 8, 1990).   NOTE: the
guidance set out in the proposed NCP  is still effective where not
superseded by guidance or regulations in the final NCP. See 55 FR at
86*6, col 3
Q4.  Should FWQC be used to set drinking-water clean-
     up levels for surface  water at  sites  that  do not
     present environmental concerns?

A,   Rarely.  FWQC should be used to set drinking-
     water cleanup levels only when surface water serves
     as an actual or potential drinking-water source and
     other  cleanup standards for drinking water  (e.g.,
     non-zero MCLGs, MCLs, or State WQSs designated
     for drinking-water  use) are not available,   (see
     Question 5 if impacts to aquatic organisms have also
     been  identified  at the site). Where surface water
     serves as an actual  or potential drinking-water
     source and there are no impacts to aquatic organ-
     isms, the following requirements, where relevant and
     appropriate,  should be attained in the  following
     order:

     •  State WQSs that are designated for drinking-
         water use, and  are more stringent than MCLs
         or non-zero MCLGs, or specific to the uses of
         that water body, or, if none,

     •  Non-zero MCLGs; or, if none,

     •  MCLs; or, if none,

     •  FWQC adjusted for drinking-water use.
Q5.   Should FWQC be used to set drinking water clean-
      up levels for surface water at sites that do present
      environmental concerns?

A.    It depends.  Generally, non-zero MCLGs or MCLs
      should be identified as the ARARs for cleanup of
      water that is or may be a potential source of drink-
      ing water.  However, at sites that also present envi-
      ronmental concerns, RPMs  should compare the
      stringency of the non-zero MCLGs or MCLs to the
      pertinent FWQC for aquatic life at  the site. If the
      FWQC for the aquatic life are more stringent, they
      may be the relevant and appropriate requirements
      to meet at the site. For example, the levels needed
      to protect aquatic organisms from volatile organics
      are generally much less stringent than the levels
      needed to protect  human exposure from drinking
      water.  Therefore, non-zero MCLGs or MCLs would
      adequately protect both  humans  and most aquatic
      life from volatile  organics.  However, the levels
      needed to protect aquatic life from metals are more
      stringent than  those  levels required to  protect
      human exposure from drinking water.  As a result,
      the FWQC  for aquatic organisms would protect
      both humans and aquatic life from metals, whereas
      non-zero MCLGs or MCLs may not.

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Q6.  Should FWQC be used to set cleanup standards for
     ground water?

A.   Rarely.  FWQC should be used to set cleanup stan-
     dards for ground water only if the ground water is a
     current or potential  source of drinking  water, and
     other cleanup standards for drinking water (such as
     MCLs and non-zero  MCLGs) are not  available.  If
     FWQC are used to set cleanup  standards for ground
     water, the  FWQC  should  first  be  adjusted for
     drinking-water use  (as  discussed in Question  7).
     Note: the issue becomes more  complicated at sites
     where the ground water flows into the surface water.
     Where the ground water flows naturally into the sur-
     face water, the ground-water remediation should be
     designed so that the receiving surface-water body will
     be able to meet any ambient water-quality standards
     (such as State WQSs or FWQC) that may be ARARs
     for the surface water. This means that the FWQC
     should be considered when establishing cleanup levels
     for the ground water at those sites, but they are not
     necessarily ARARs for the cleanup of ground water.
     At  sites where the discharge from a ground-water
     treatment  facility will be deposited into the surface
     water, the discharged water  will have to meet  all
     effluent  limitations  found in the applicable State
     National  Pollutant  Discharge  Elimination  System
     (NPDES)  permits, rather  than the FWQC.   (The
     NPDES  effluent limitations will assure compliance
     with State WQSs.)

Q7.  What is required to develop cleanup levels based on
     FWQC for human exposure from drinking water
     alone?

A,   In those rare circumstances where the FWQC will be
     used to establish cleanup levels for drinking water,
     RPMs must adjust the original equation used to de-
     velop  FWQC for human exposure from both inges-
     tion of contaminated drinking water and  contam-
     inated fish.  When adjusting the FWQC to develop
     cleanup standards for human exposure from drinking
     water alone, RPMs should use the standard exposure
     assumptions (i.e., 2 liters of water, 6.5 grams of edible
     aquatic products, and an average body weight of 70
     kg), unless data are available  indicating that the
     standard exposure assumptions  are not pertinent to
     the area in which the site is located (see Highlight 1).
     Note, however, that  adjustment of the FWQC for
     drinking is not simply a matter of sub-tracting one
     FWQC from another.

     While it  is  possible to derive cleanup  levels for
     drinking water from FWQC, FWQC were not intend-
     ed to  be  used as drinking-water cleanup standards,
     since  no criteria are  provided for human exposure
     from ingestion of water alone.  Moreover, the values
     derived from the FWQC (in contrast with those de-
     rived  from MCLs  and MCLGs) do not reflect the
     contribution of other sources through an appor-
    Hlghlight I:  NONCARCINOGENIC EQUATION

      For noncarcinogens, acceptable daily intakes
   (AD Is) and criteria derived therefrom are
   calculated from total exposure data that include
   contributions  from the diet and air. The equation
   used to derive the criterion (C) is:

    C = ADI - (DT+IN)/{2 liters + (0.0065 kg x R)J

   where:

    2 liters is assumed daily water consumption;
    0.0065 kg is  assumed daily fish consumption;
    R is bioconcentration factor in units of I/kg;
    DT is estimated non-fish dietary intake; and
    IN is estimated daily intake by inhalation.

      The equation for carcinogens is not provided
   in this fact sheet because FWQC for carcinogens
   are recommended at zero, and therefore are not
   ARARs for the Superfund program (see Question
   #8 of this fact sheet).  ,
      tionment factor.   Therefore, FWQC may be less
      useful as cleanup standards for potential drinking
      water  than  the MCL/MCLG drinking-water stan-
      dards (see proposed NCP preamble, 53 FR at 51442,
      and final NCP preamble, 55 FR at 8755).

Q8.   How should EPA comply when FWQC for carcino-
      gens are determined to be potential ARARs?

A    As previously mentioned, the recommended FWQC
      for carcinogens are  set at zero.  Consistent with
      Superfund policy on MCLGs, the zero-value FWQC,
      since they cannot be measured, would not be consi-
      dered appropriate cleanup standards and, thus, are
      not "relevant and appropriate requirements" within
      the meaning of CERCLA section 121(d)(2)(A) (see
      final NCP preamble, 55  FR at 8755).  Accordingly,
      they are not ARARs and, therefore, they do not
      need to be attained or waived.

      For the  carcinogens, the Office of Water Regula-
      tions and Standards (OWRS) has also published for
      informational  purposes  three concentration levels
      corresponding to incremental cancer  risks of 10"5,
      10"6, and 10 , respectively.  OWRS has expressly
      stated in the preamble to their FWQC publications
      that it makes no judgment or recommendation as to
      which  of the three concentrations  provides  an
      "acceptable" risk level for carcinogens.   Instead,
      these concentration levels  have been provided for
      informational purposes only anc, therefore,  simply
      constitute guidance to-be-consideied (TBCs) for the
      Superfund program.  As a result, an ARAR waiver
      is unnecessary for FWQC published for carcinogens;

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     Therefore, if these  conditions  are satisfied,  the
     antidegradation provision should be met.

     [Note: If pump-and-treat reinjections fail ;o msintain
     the current quality of the aquifer, an interim action
     waiver could  be invoked, assuming the aquifer will be
     suitable for its current  use upon completion of the
     remediation.]

      Scenario  #2:  Natural Attenuation

     Assumption:  The ground water is contaminated or, at
     a minimum, contains a plume of contamination.  The
     ground water is a Class I or II aquifer (which means
     that it is or  may  be  a potential source of drinking
     water).

A)   State  ground-water  antidegradation  requirements
     that prohibit discharges: These are not applicable to
     natural attenuation of the ground water because there
     is no discharge during natural attenuation.

     Compliance:  The statute is not applicable to natural
     attenuation,  but it may be relevant  and appropriate
     depending upon  circumstances  at the  site  (see
     Question #5 below).

B)   State  antidegradation  requirements  that require
     ground-water maintenance consistent with its current
     uses:  These are  potentially applicable  to natural
     attenuation.

     Compliance:   The remedy generally would comply
     with  these requirements  during natural attenuation
     remediation, if the remedy maintains (i.e., does not
     adversely affect) the  current quality of the aquifer.
     Moreover, it is unlikely that natural attenuation will
     interfere with the  ground water's current  uses, since
     natural attenuation is typically confined to sites where
     the contaminant level is low, there are small areas of
     contamination, and the plume will not migrate signifi-
     cantly.    Therefore,  natural  attenuation  generally
     should meet  this type  of antidegradation requirement.

     [Note: Where such  requirements  are  not met, an
     interim action waiver might be appropriate, assuming
     the aquifer will be suitable for  its current use upon
     completion of the remediation.]
   Here, again, Hie State may argue that a  more limited definition of
"current uses" is the only valid interpretation. If so, consult ORC or OGC.
          Scenario #3:  Soil Flushing

   Assumptions: The soil is contaminated.   Through soil
   flushing, contaminated effluent will enter the ground
   water and then be extracted for treatment.  The ground
   water is a Class I or II aquifer (which means that it is
   or may be a potential source of drinking water).  The
   aquifer may or may not be contaminated.

A) State ground-water antidegradation requirements that
   prohibit discharges: These are likely to be applicable
   because the effluent from the soil flushing probably
   constitutes  a discharge.   However,  the statute  is
   violated only if the discharge constitutes the  type
   prohibited by the statute.

   Compliance:  If, for example, the statute prohibits
   discharges  injurious to  public  health,  EPA  may
   conclude that soil flushing would comply with it where
   the  receiving aquifer  is already contaminated.   (A
   discharge  of  contaminated  effluent  into  a con-
   taminated aquifer generally would not be "injurious to
   public  health.")     Moreover,  if  pump-and-treat
   remediation is conducted  concurrently with the soil
   flushing, EPA may conclude that the "discharge" is not
   injurious  to public health  because  it  would  be
   controlled and contained through the pump-and-treat
   remediation.4

   [Note:  Since it is EPA's goal to restore ground water
   to its beneficial  uses, the  Superfund program would
   rarely  propose a  soil  flushing  remedy  that  would
   degrade pristine or only slightly  contaminated water.
   Thus, the issue of compliance of soil flushing with an
   antidegradation standard should rarely be a problem
   for  Superfund ground-water  remediations.   In  rare
   cases where degradation of a pristine aquifer through
   soil flushing is necessary, RPMs should invoke  the
   interim measures ARARs  waiver.]

B) State  antidegradation  requirements  that  require
   ground-water maintenance consistent with its current
    uses:    These  presumably  are  applicable  to  soil
   flushing.

    Compliance: The remedy generally would comply with
    these requirements during soil flushing, if the remedy
    maintains (i.e., does not adversely effect) the current
   quality of the aquifer.  Current quality of the aquifer
    is maintained if the effluent at least meets current
   water  quality levels of the  aquifer.    Because soil
    flushing is generally only considered for contaminated
    aquifers, these requirements typically may be met.5
   Again, the Slate may argue that a  more limited interpretalion  is
 required. If so, consult ORC or OGC.


  State arguments that a more restrictive interpretation of the standard
 is required should be referred to ORC or OGC.

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        Highlight L:  KEY FACTORS FOR THE
    APPLICABILITY OF STATE GROUND-WATER
       ANTIDEGRADATION REQUIREMENTS
                TO SOIL FLUSHING

   •   Whether the  State statute is triggered because
       either the effluent constitutes a "discharge" under
       the State law,  or  the  State statute  requires
       ground-water maintenance  (during  CERCLA
       remediation)  consistent with current uses;

   •   Whether the statute defines "current  uses" as
       present uses or  pre-contamination uses;

   •   Whether  the  aquifer   is   pristine,  slightly
       contaminated, or greatly contaminated;

   •   Whether the effluent has  high contaminant
       levels; and,

   •   Whether  soil  flushing   will  be  conducted
       concurrently with pump-and-treat remediation of
       the ground water.
Q5.  Are  State ground-water  antidegradation  require-
     ments likely  to  be relevant  and  appropriate  re-
     quirements for remediation that affects the ground
     water?

A.   It depends upon whether the requirements are well-
     suited for use at the site.  While examples are given
     below, a  more definite  answer cannot  be  given
     because  relevance  and appropriateness is  a site-
     specific determination. See section 300.400(g)(2) of
     the  revised  NCP.  (See  the  attached matrix  for
     additional examples.)

     For example, State antidegradation requirements that
     are applicable to discharges injurious to public health
     are  potentially relevant  and  appropriate  to  all
     ground-water  remediations (whether or not  there is
     a discharge), by prohibiting remediations injurious to
     public health.   These principles,  when applied to
     CERCLA  remediations,  should  be  analyzed  as
     follows:6

A)   EPA does not consider pump-and-treat remediations
     of a contaminated  plume to be injurious to public
     health  because  they are  generally  effective  at
     containing and treating contaminated plumes. (See
     OSWER Directive 9355.4-03, October 1989,  entitled
     "Considerations in  Ground-Water  Remediation at
     Superfund Sites").  Therefore, pump-and-treat
  The following reflects EPA's general analysis of how several types of
remediation should be evaluated. The State may (ake a different and more
linnled view of what was intended under the statute.  If the Slate argues
for a different interpretation of Ms laws, consult ORC or OGC.
   remediations would generally comply  with these
   requirements, if relevant and appropriate.

B) Natural  attenuation  remediation would  also  be
   expected  to  comply  with   these   requirements
   prohibiting  injurious discharges (if  relevant  and
   appropriate).  Examples include sites  where: (1) a
   contaminated plume  is located  within  a  Class III
   aquifer; (2) a contaminated plume is moving within
   parts of a Class I or  II aquifer  that are also signi-
   ficantly contaminated; or (3) the plume  is small, its
   contaminant  levels are low, and it will not migrate
   significantly.  Natural attenuation might be said not
   to comply with these requirements if it allows a con-
   taminated plume to move into  a pristine, or only
   slightly contaminated portion of a  Class I or  II
   aquifer; the interim action waiver must be invoked at
   such  sites, and precautions  such as institutional
   controls should be taken.

C) Soil flushing generally would comply  with these
   requirements, if relevant and  appropriate, at sites
   where the aquifer is  already contaminated.  Con-
   taminants from soil flushing  might be said to be
   injurious  to  public health if  introduced  into  a
   pristine, or only slightly contaminated portion of a
   Class I or II aquifer. In those  rare cases where  it is
   necessary  to  select this remedy at such sites,  the
   interim  action  waiver  must  be invoked,   and
   precautions such as institutional controls should be
   taken.
 Highlight 2:  COMPLIANCE WITH STANDARDS
        SET BELOW DETECTION LEVELS

 State ground-water antidegradation standards  that
 are set below detection levels cannot be measured or
 verified. Therefore, if such standards are applicable,
 the technical impracticability waiver should generally
 be invoked where compliance with such standards is
 not possible  due to detection  limits.  Potentially
 relevant and appropriate standards that cannot be
 measured  or verified may not be appropriate  and,
 therefore,  are not ARARs  (see  Preamble to  the
 revised NCP, 55 FR 8750-8752).

 Regions should not extrapolate from existing data or
 technologies to reach a  level set  below  detection
 capabilities because such extrapolations cannot be
 verified scientifically with any degree of certainty.
 Without verification, neither the Agency nor  the
 potentially responsible parties could legally establish
 that cleanup goals were met.  Furthermore, the NCP
 states that relevant and  appropriate requirements
 must be measurable and attainable since their  pur-
 pose is to  set a standard that an actual remedy will
 attain (see Preamble to  the revised  NCP, 55  FR
 8752).

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 Highlight 3:  POTENTIAL ARARs WAIVERS FOR
 STATE ANTIDEGRADATION REQUIREMENTS

The Interim Measure Waiver: This waiver provides
that the action  selected  need not attain an  ARAR
where the action "is only part of a total remedial
action  that  will attain  such  level  or standard of
control when completed."  See  CERCLA  section
121(d)(4)(d). Therefore, the interim measures waiver
may be used to  waive ARARs for interim measures
which,  by their  temporary nature, do not attain all
ARARs.   However, the interim measure must be
followed  by, or  be part  of, complete measures  that
attain all ARARs, and it should not exacerbate site
problems nor interfere with the final remedy (see the
revised NCP, 55 FR 8747-8748 (March 8, 1990)).

The Inconsistent Application of State Requirements
Waiver: This waiver  is  intended  to  prevent  the
application to Superfund sites of State  requirements
that have not been consistently applied elsewhere in
a State. State standards are presumed  to have been
consistently  applied unless there is evidence to the
contrary.  When questioned  by EPA, States may
provide evidence of consistency of application by
demonstrating:  (1) the similarity of sites or response
circumstances; (2) the proportion of noncompliance
cases;  (3)   reasons for  noncompliance; and   (4)
intentions to apply  future requirements (see the
revised NCP, 55 FR 8749 (March 8, 1990)).
NOTICE: The policies set out in this ARARs Q's and
 A's are intended solely for guidance.  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 the
 guidance provided in this Q's and A's, or to act  at
 variance with the guidance, 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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                                  MATRIX ANALYSIS OF STATE GROUND-WATER ANTIDEGRADATION REQUIREMENTS
                                       AS  THEY  PERTAIN TO CERTAIN REMEDIES AND  SITE  CIRCUMSTANCES*
                                                             REMEDY/SITE  CIRCUMSTANCES
    STATE LAW
  GROUND-HATER REMEDIATION:
       PUMP AND TREAT
(Aquifer With a Contaminated
       Moving Plume)
                                                               GROUND-HATER REMEDIATION:
                                                                 NATURAL ATTENUATION
                                                               (Aquifer With a Contaminated
                                                                     Moving Plume)
                                         SOIL REMEDIATION:
                                           SOIL FLUSHING
                                  (Where the Aquifer May or May
                                       Not Be Contaminated —
                                   Followed by Pump and Treat)
                                       SOIL REMEDIATION:
                                         SOIL FLUSHING
                                (Where the Aquifer May or May
                                     Not Be Contaminated —
                                Concurrent With Pump and Treat)
 The ground water
 must be protected.
 Discharges that are
 injurious to public
 health axe pro-
 hibited.

 RAR:    ground-water
 remediations that
 are injurious to
 public health are
 prohibited.   This
 may arguably occur
 if a remediation
 allows a contami-
 nated plume to move.
 The ground water
 must be protected.
 No discharge is
 permitted unless a
 State Board issues  a
 permit.

 RAR: "   ground-water
 remediations must
 protect the ground
 water consistent
 with State permit
 standards (which
 may, for example,
 prohibit the
 introduction of
 contaminants into a
 portion of an
 aquifer used for
 drinking).
Not applicable if there is no
discharge   If  each reinjec-
tion  is  a  "discharge,"  the
requirement  is  met  if  the
discharge  is not  "injurious
to  public   health"   (e.g.,
where the  receiving  aquifer
is  already  contaminated, or
if  the  reinjection has  low
contaminant levels),    It is
generally not a  RAR if  the
plume is  moving into parts of
the  aquifer that  are  also
significantly  contaminated.
If  it is  a RAR,  and it  re-
quires some  degree  of  plume
containment, we comply  with
it through pump and treat.

Permits  are not required (see
CERCLA §121(e)(D)   Substan-
tive requirements of the per-
mit  program are  not  appli-
cable if there  is no  dis-
charge   If each  reinjection
constitutes  a   "discharge,"
the  requirement  is  met if
each  reinjection  meets  the
substantive  requirements of
the  permitting   regulations
(eg,  no   "harmful"   dis-
charge)    It is generally not
a RAR if the plume  is  moving
to parts  of the  aquifer that
are also  significantly  con-
taminated.   If it  is  a RAR,
and it requires some  degree
o£  plume   containment,  we
comply with  it through  pump
and treat
Not applicable  because  there
is no discharge.   It  is gen-
erally not a RAR if the plume
is  moving  to   parts  of  the
aquifer that are  also signi-
ficantly contaminated.  If it
is a RAR,  and it requires some
degree of  plume containment,
we comply with  it by  limiting
natural attenuation to  sites
where  the plume will  not  mi-
grate  to  the portions of  the
aquifer used for drinking  and
contaminant  levels  are  low,
thereby preventing  injury  to
public health.   Otherwise,  we
may use  the  interim action
waiver,  usually  accompanied by
institutional controls.
Permits are not required (see
CERCLA  §121(e)(1)).   Substan-
tive requirements of the per-
mit program are  not applicable
because  there  is  no   dis-
charge.  It is generally not a
RAR if the plume is. moving to
parts  of the aquifer  that  are
also  significantly   contami-
nated.  If it is a RAR, and it
requires some degree of plume
containment,  we  may   comply
with  it  by  limiting  natural
attenuation to  sites where the
plume  will  not migrate  into
portions of the  aquifer desig-
nated   for  drinking or  other
protected uses.  Otherwise, we
may use  the  interim action
waiver,  usually  accompanied by
institutional controls.
May be a discharge;  however,
the requirement is met if the
discharge is not injurious to
public health (e.g., because
the aquifer  already exceeds
health-based levels  or if the
discharge has low contaminant
levels).   If discharging to a
pristine or slightly contam-
inated  aquifer,  we  may  use
the interim action waiver.
May be a discharge;  however,
no permits are required under
CERCLA  S121(e)(l).    If  the
substantive  requirements  of
the permit program are ARARs,
the action may comply if the
contaminant  levels   of  the
effluent entering the ground
water  do   not   exceed  the
discharge  standards   set  in
the  ROD   (based  on  State
permit requirements). Other-
wise, we may use the interim
action waiver
May  be  a  discharge;  however,
the  requirement is met  if the
discharge is  not  injurious  to
public  health  (e.g.,  because
the  aquifer  already  exceeds
health-based  levels or  if the
discharge has  low contaminant
levels).  If it is an ARAR,  we
may comply with it by conduct-
ing  pump  and  treat  simulta-
neously, if  the discharge (as
it  is  part  of  a  contained
treatment system)  is not injur-
ious to public health.   Other-
wise, we  may use  the  interim
action waiver.
May be a discharge; however, no
permits   are   required  under
CERCLA  §121(e)(l).     If  the
substantive requirements of the
permit  program  are  ARARs,  the
action   may   comply   if   the
contaminant   levels    of   the
effluent  entering  the ground
water   do   not  exceed   the
discharge standards  set in the
ROD   (based  on  State  permit
requirements).    Otherwise,  we
may   use  the   interim  action
waiver
This matrix provides  general considerations only.
Hnn^ult with ORC or OGC  on  specific applications.
                                                                            -  1  -
                                                                                   Relevant and Appropriate Requirement

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                                     MATRIX ANALYSIS OF STATE  GROUND-WATER ANTIDEGRADATION REQUIREMENTS
                                          AS  THEY  PERTAIN TO CERTAIN REMEDIES AND  SITE  CIRCUMSTANCES*
                                                                REMEDY/SITE  CIRCUMSTANCES
       STATE LAW
    GROUND-HATER REMEDIATION:
         FUMP AND TREAT
   (Aquifer With a Contaminated
         Moving Plume)
     GROUND-WATER REMEDIATION:
      NATURAL ATTENUATION
    (Aquifer With a Contaminated
          Moving Plume)
        SOIL REMEDIATION:
          SOIL FLUSHING
  (Where the Aquifer May or May
      Not Be Contaminated —
   Followed by Pump and Treat)
       SOIL REMEDIATION:
         SOIL FLUSHING
(Where the Aquifer May or May
     Not Be Contaminated —
Concurrent With Pump  and Treat)
3.   The ground water
    must be protected.
    No discharge is
    permitted to a
    usable aquifer.

    RAR:**   ground-water
    remediations that do
    not protect a usable
    aquifer are pro-
    hibited.  This may
    occur if the remedi-
    ation allows a con-
    taminated plume to
    move.
•  Requirement is not applicable
   if there  is  no discharge.   If
   each reinjection constitutes
   a "discharge,"  the  require-
   ment is not  applicable if  the
   prior contamination  already
   rendered   the   aquifer   un-
   usable.   The  requirement  is
   not a RAR  if the plume  has
   rendered  the aquifer unusable
   or if the plume  is moving to
   parts of  the aquifer that  are
   also  significantly  contami-
   nated.  If  it is  a  RAR,  and
   it  requires  some  degree  of
   plume containment,  we comply
   with  it   through   pump   and
   treat.
•  Requirement is not applicable
   because there  is no discharge.
   Also,  the  requirement  is  not
   applicable if  the plume  has
   rendered the aquifer unusable.
   The requirement may not be  a
   RAR if the plume has  rendered
   the aquifer unusable or if the
   plume is  moving to parts  of
   the aquifer already  contami-
   nated.  If it  is a RAR, and it
   requires some  degree  of plume
   containment,   we  may  comply
   with  it  by limiting  natural
   attenuation to sites where the
   plume  will not  migrate   to
   usable portions of the aqui-
   fer.   Otherwise,  we may  use
   the  interim   action   waiver,
   usually accompanied by insti-
   tutional controls.
•  May be a discharge;  however,
   the requirement is not appli-
   cable if the aquifer  is  not
   usable (e.g.,  because it  is
   already contaminated).   This
   requirement is probably  ap-
   plicable if  the  aquifer  is
   pristine or slightly contam-
   inated.   If  so,  we may  use
   the interim action waiver.
 May  be  a  discharge;  however,
 the  requirement is  not  appli-
 cable  if  the  aquifer  is  not
 usable (e.g., because it is al-
 ready contaminated).   If  it is
 an ARAR,  we may comply with it
 by   simultaneously  conducting
 pump  and  treat if  the  prompt
 containment  and  treatment  of
 contaminants  protects   usable
 portions    of   the   icpufer.
 Otherwise,   we  may  use   the
 interim action  waiver.
4.   The ground water
    must be protected.
    No discharge  is
    permitted if  it
    interferes with
    existing uses.

    RAR:"*   ground-water
    reciediatiotis  that
    interfere with
    existing or
    potential uses are
    prohibited.   This
    may occur if  the
    remediation allows a
    contaminated  plume
    to move.
   Requirement  is not applicable
   if there  is no discharge.   If
   each reinjection constitutes
   a "discharge, '   the  require-
   ment is met  if  the  existing
   uses(/quality)  of the  aqui-
   fer   is  maintained   (e.g.,
   where the aquifer is  already
   contaminated).     It   would
   generally not be a RAR if  the
   plume is  moving  to a  portion
   of the aquifer  that  is  al-
   ready contaminated.  If it is
   a RAR, and  it requires some
   degree of plume  containment,
   we  comply  with  it  through
   pump and  treat.
   Requirement is not applicable
   because there  is no discharge.
   It would  generally  not be  a
   RAR if the plume is  moving to
   a portion of the aquifer that
   is already  contaminated.   If
   it is  a RAR,  and  it requires
   some degree of plume contain-
   ment,  we may comply with it by
   limiting natural  attenuation
   to  sites  where  contaminant •
   levels are  low  and  any plume
   migration will not affect  the
   existing uses(/quality) of the
   aquifer.    Otherwise,  we  may
   use the interim action waiver,
   usually accompanied  by insti-
   tutional controls.
•  May be a discharge;  however,
   the requirement is not appli-
   cable 'f  the  existing  uses
   (/quality)  of  the  aquifer  is
   maintained  (e.g.,  where the
   aquifer  is already  contami-
   nated).   This  requirement  is
   probably applicable  if the
   aquifer    is   pristine    or
   slightly contaminated. If so,
   we may use the interim action
   waiver.
 May be  a  discharge;  however,
 the requirement is  not  appli-
 cable   if  the  existing  uses
 (/quality)  of  the  aquifer  is
 maintained   (e.g.,   where  the
 aquifer   is  already  contami-
 nated).    This  requirement  is
 probably  applicable  if   the
 aquifer  is pristine or slightly
 contaminated.    If  so,  we  may
 use the  interim action waiver.
   This  matrix provides general considerations only.
   r/~i«*'it  -.<*-v nor- „- rw* n— ..~«»j«'4~ -~~-i j „„».t„»,„
                                                                              -  2  -
                                                                                     Relevant and Appropriate Requirement

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                                    MATRIX  ANALYSIS  OF  STATE  GROUND-WATER  ANTIDEGRADATION REQUIREMENTS
                                         AS THEY  PERTAIN  TO  CERTAIN REMEDIES  AND SITE  CIRCUMSTANCES*
                                                                REMEDY/SITE CIRCUMSTANCES
       STATE LAW
                                GROUND-WATER REMEDIATION:
                                     PUMP Am)  TREAT
                              (Aquifer With a  Contaminated
                                     Movins Plume)
                                   GROUND-WATER REMEDIATIOH:
                                     NATURAL ATTENUATION
                                   (Aquifer With a Contaminated
                                         Moving Plume)
                                         SOIL REMEDIATION:
                                           SOIL FLUSHING
                                  (Where the Aquifer May or May
                                       Not Be Contaminated —
                                   FpJL lowed by Pump and Treat)
                                       SOIL REMEDIATIOH: ,
                                         SOIL  FLUSHING
                                (Where the Aquifer May or May
                                     Not Be Contaminated —
                                Concurrent With  Pump and Treat)
5.   Maintain ground
    water at existing
    high quality unless
    the State Board
    approves the change
    to the water qual-
    ity.   [Statute
    requires ground~
    water maintenance at
    existing high
    quality during
    remediation.  This
    may require
    containment of a
    contaminated moving
    pluoe.}

    RAR:**  same as
    applicable.

6.   Ground-water quality
    must be maintained
    comnensurate with
    current uses.
    Statute requires
    maintenance of
    ground-water quality
    during remediation.
    This may require
    contairnent of a
    contaminated moving
    plix&e.

    RAH:**  same as
    applicable.
Requirement is not applicable
if the ground water is not  of
high quality due to  the  con-
taminated  plume.   This re-
quirement may be  applicable
if the aquifer is pristine  or
only  slightly  contaminated.
If so,  we may use the interim
action waiver.   It may be a
RAR if the  plume is moving  to
portions of the  aquifer  that
are designated  for  drinking
or other protected uses.   If
the requirement  ia a RAR, and
it  requires  some degree  of
plume containment, we comply
with  it  through pump  and
treat.
Requirement  is   presumably
applicable.  Requirement  is
met  if  the remedy  maintains
the  current  quality of  the
aquifer (e.g.,  where the  re-
injections  at   least  meet
current water uses(/quality}
levels of  the  aquifer).   If
the  requirement  is an ARAR
and  it  requires  some  degree
of   plume   containment,   we
comply with  it  through pump
and treat
Requirement is not applicable
if the ground water is not of
high quality due  to  the  con-
taminated plume.    If  the  re-
quirement  is  a  RAR,  we  may
comply  with  it  by  limiting
natural  attenuation  to  sites
where  the   plume  contaminant
levels are  low and the  plume
will  not   migrate  signifi-
cantly.   Otherwise, we may use
the  interim  action  waiver,
usually accompanied by insti-
tutional controls.
Requirement   is   presumably
applicable.   Requirement  is
met  if the  remedy  maintains
the current uses(/quality) of
the aquifer (e,g,  where plume
contaminant  levels  are  low,
there  are   small   areas  of
contamination,   and  the plume
will   not   migrate   signifi-
cantly) .    Otherwise,   we may
use the interim  action waiver,
usually accompanied by insti-
tutional controls.
Requirement is not applicable
if  the  ground  water is  al-
ready contaminated.  This re-
quirement may be  applicable
if the aquifer is pristine or
only  slightly  contaminated.
If so, we may use the interim
action waiver.
Requirement   is   presumably
applicable.   Requirement  is
met  if  the remedy maintains
the current uses(/quality) of
the  aquifer (e.g., where the
effluent at  least meets the
current water quality levels
of the  aquifer).   Otherwise,
we may use  the interim action
waiver.
Requirement is  not  applicable
if the ground water is already
contaminated.  This requirement
may be applicable if the aqui-
fer is pristine  or only slight-
ly contaminated.  If so, we may
use the interim  action  waiver
Requirement  is  presumably  ap-
plicable.   Requirement  is  met
if  the  remedy  maintains  the
current  uses(/quality)  of  the
aquifer    (e.g. ,    where   the
effluent  at  least  meets  the
current water quality levels of
the  aquifer),    Otherwise,  we
may  use   the  interim  action
waiver.
   This matrix provides general considerations only.
   Consult with ORC or OGC on specific applications.
                                                                              -  3  -
                                                                                  Relevant and Appropriate Requirement

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          ARARs Q's and A's:
State Ground-Water Antidegradation Issues

-------
   vvEPA
                           United States
                           Environmental Protection
                           Agency
                            Office of
                            Solid Waste and
                            Emergency Response
ARARs   Q's  &  A's
State  Ground-Water
Antidegradation  Issues
Office of Emergency and Remedial Response
Office of Program Management OS-240
                         Publication 9234.2-11/FS
                         Jury 1990
                                                          Quick Reference Fact Sheet
    Section 121(d)(2) of CERCLA, as amended by the 1986 Superfund Amendments and Reauthorization Act (SARA),
requires that remedial actions must at least attain Federal and more stringent State applicable or relevant and appropriate
requirements (ARARs) upon completion of the remedial action.  The 1990 National Contingency Plan (NCP) requires
compliance with ARARs during remedial actions as well as at completion, and mandates attainment of ARARs during
removal actions to the extent practicable. See revised NCP, 40 CFR section 300.435(b)(2) (55 FR 8666, 8852)(March 8,
1990) and section 300.415(i) (55 FR 8666, 8843)(March 8, 1990).

    This Q's  and A's fact sheet is designed to provide guidance on the status of State ground-water antidegradation
provisions  as potential ARARs for CERCLA ground-water and soil remedial actions.  The guidance in this fact sheet
reiterates Agency policy already in practice in EPA's Regional offices.  The goal and policy of the Superfund program is
to return  usable ground water to its  beneficial  uses within  the timeframe that is  reasonable, given the particular
circumstances of the site.  In addition to our goal of ground-water cleanup, Superfund has a nondegradation policy in that
we strive for the prevention of further degradation of the ground water during our remedial actions. However, it should
be noted that more stringent State standards than those imposed by EPA policy may be imposed by State antidegradation
requirements.  Such State requirements, if they have been determined to be ARARs for the site, would have to be met (e.g.,
by meeting the discharge  requirements) or waived (e.g., by the interim remedy waiver).  Nevertheless, even where temporary
degradation of the ground water may be required during the remedial action, we will provide protection by restricting access
or providing institutional controls, and  EPA response actions will ultimately  result in  restoration of the ground water's
beneficial uses.

    (NOTE:  States  use the terms "nondegradation" and "antidegradation" interchangeably; there does not appear to be
a consistent distinction between the two.  As a result, all State nondegradation and antidegradation requirements are
referred to in this fact sheet as antidegradation requirements.)
Ql.  What  is  a  State  ground-water  antidegradation
     requirement?

A,   State antidegradation  requirements vary widely in
     their scope and drafting.  However, as a general rule,
     they are anti-pollution requirements (not  cleanup
     requirements) designed to prevent degradation of the
     surface water or ground water.   Antidegradation
     requirements typically accomplish their purpose in
     one of two ways:   (1)  by  prohibiting or  limiting
     discharges that potentially degrade the surface water
     or ground water (typically  action-specific  require-
     ments); or  (2)  by  requiring  maintenance  of the
     surface-water or ground-water quality consistent with
     current uses.

     Under the Clean Water Act, every State is required
     to classify  all of the waters within its boundaries
     according to their intended use.  As required by EPA
     regulation, all States have established surface-water
                            Q2
antidegradation regulations. These requirements may
be potential ARARs for CERCLA remediations in-
volving discharges to surface water.  Although not
specifically required by EPA, the majority of States
have also established some form  of ground-watei
antidegradation provisions.  These States may hav<
enacted   specific   ground-water  antidegradatioi
statutes, or they may include ground-water protectioi
provisions within  general environmental  statute;
These  State  provisions for  ground  water ma
constitute potential ARARs for CERCLA remedij
tions that have an  impact upon the ground wau
(e.g., ground-water reinjection or soil flushing).

State  antidegradation  requirements   are   oft<
:. State  antidegradation   requirements  are  ofu
  expressed as general goals.  Can they be potenti
  ARARs?
                            A.   Yes, antidegradation requirements  expressed
                                general goals may be potential ARARs if they an

-------
    (1) directive in nature and intent; and (2) established
    through a promulgated statute or regulation that is
    legally enforceable (see Preamble to the revised NCP
    at 55 FR 8746).

    Antidegradation  provisions are directive in nature
    when  they contain narrative or numerical limits, or
    are  implemented  by State regulations  that provide
    needed  specificity.   For example,  general antide-
    gradation  goals  are sufficiently  directive  when
    implemented   by  regulations   setting  limits  that
    ground-water contamination may not exceed. When
    a general State antidegradation statute does not have
    any implementing regulations, EPA has considerable
    discretion in determining what  is required to inter-
    pret or  comply with the law (see Preamble to the
    revised NCP at 55 FR 8746).1  For example,  EPA
    may look at State surface-water or ground-water use
    and classification systems,  such  as  those  that set
    water-quality standards, since they designate uses of
    a given  water  body and/or  maximum concentration
    levels  to protect those uses. Alternatively, EPA may
    look at  a State's wellhead protection  program for
    requirements concerning ground-water maintenance.
    If the State's narrative, general antidegradation goals
    stand  alone,   they  may be  nothing  more  than
    statements  of intent about desired outcomes  or
    conditions.  Statements  of intent are  insufficiently
    directive to constitute potential ARARs.  Likewise,
    vague or ambiguous narrative descriptions  of ground-
    water  degradation limits probably do  not  provide
    sufficient direction  to constitute  potential  ARARs
    (see Preamble to the revised NCP at 55 FR 8746).

    To  be considered a potential ARAR, a  State anti-
    degradation  law  must  be  established  through a
    promulgated  statute or regulation   that  is legally
    enforceable and "of general applicability"  (see NCP,
    section 300.400(g)(4)).  To be legally enforceable,
    State standards must be requirements —  not guidance
    - that are issued  according to the State  procedural
    requirements   and  that  contain  certain  specific
    enforcement  provisions  or  are otherwise  directly
    emorceable under State law (see Preamble to the
    revised NCP at 55 FR 8746). The phrase  "of general
    applicability" means that potential State ARARs must
    be applicable to all  remedial situations described in
    the  requirement,  not just  to  CERCLA  sites (see
    Preamble to the revised NCP at 55 FR  8746).
The State may argue that Us interpretation of the meaning of the goal,
-  the Slate's non-binding guidance, should determine  the statute's
eaning.  The St?te may also argue that Stale courts have upheld the
ale's interpretation of the requirement.  If either of these arguments is
•ised, advice should be sought from ihe Office of Regional Counsel
)RC) or the Office of General Counsel (OGC).
Q3.  At what point do State ground-water antidegradation
     requirements become ARARs at a Superfund site?

A.   Antidegradation requirements are generally action-
     specific requirements that may apply  during the
     course of and  at  the  completion  of the Agency
     response action.   They apply  prospectively,  and
     generally obligate the Agency only to prevent further
     degradation of the water during and at completion of
     the  response action (not prior to it).  While anti-
     degradation  requirements  are not cleanup laws, in
     some  limited cases they may, as relevant and appro-
     priate requirements, be appropriate for establishing
     a cleanup level  for past contamination.

     Furthermore, EPA is  not  required to  take  any
     response action unless and  until EPA determines
     that it is appropriate to do so. Even then, this action
     must meet (or waive) a State requirement only if the
     Agency determines that the requirement is an ARAR
     for the site.   The Agency  determines what Federal
     and State laws constitute ARARs that must be met
     or waived during or at the completion of a response
     action. Compliance with a specific Federal or State
     law is triggered when the Agency determines  that a
     requirement is either applicable to site remediation,
     or relevant and appropriate because  its use is well-
     suited  to  site  circumstances.   However, neither
     CERCLA nor  the NCP  requires the  Agency to
     comply with  ARARs prior to  conducting a response
     action. Therefore, when the Agency decides to take
     a response action, and if the Agency determines  that
     a State antidegradation requirement is an ARAR for
     a site,  the  Agency  must   meet  or  waive  the
     requirement.

     It should also be noted that only ARARs within the
     scope of the response action have  to  be met or
     waived.  If the Agency  is conducting an  RI/FS to
     determine the action that may be necessary at a site,
     the  State's ground-water  antidegradation  require-
     ments are  generally beyond the scope of the action,
     and therefore are not likely to be potential ARARs
     for it.  Of course, if a proposed RI/FS  activity such as
     site sampling  has  the potential  to  temporarily
     degrade the ground water, the specific terms  of the
     State  ground-water  antidegradation requirement
     should be examined to determine whether it is an
     ARAR for that action.

Q4.  When  are  State  ground-water  antidegradation
     requirements likely to be applicable to  CERCLA
     remediations that afTect the  ground  water?  When
     they are applicable, what is required for compliance?

A.   The attached matrix analyzes whether six hypothetical
     State antidegradation requirements for ground water
     are  ARARs for four different CERCLA remedia-
     tions.   For most sites, the  matrix may be helpful in
     determining whether State antidegradation require-

-------
 ments are ARARs for remediations  that affect the
 ground water. The information in the text of this fact
 sheet  is  provided to give  the  specific  analysis and
 rationale underlying the conclusions  reached in the
 attached  matrix.   Although  only two of  the  six
 hypothetical State antidegradation requirements are
 analyzed  here  in  detail,  these principles  should
 generally  apply  to   most   State  ground-water
 antidegradation requirements.

 Applicability of State ground-water antidegradation
 requirements depends  upon three factors:

 •   The specific language of  the State statute or
    regulations;

 •   The nature of the  CERCLA remediation; and

 •   The circumstances at the site.

 First, a review of the specific language  of the State
 statutes  (or regulations)  reveals  that  most  anti-
 degradation requirements fall into one  of two cate-
 gories:    (1) those  that  focus  upon prohibited
 discharges; and (2) those that focus upon maintaining
 the ground water consistent with its  uses.  Second,
 with respect to the nature of the CERCLA remedia-
 tion, there are three forms of remediation that may
 trigger ground-water antidegradation requirements:
 ground-water pump-and-treat, ground-water  natural
 attenuation, and soil flushing. Finally, applicability is
 affected by the circumstances at the site such as the
 contaminant levels of the effluent, and the quality of
 the receiving aquifer.  The sections that follow pro-
 vide hypothetical  examples of  the applicability of
 State  ground-water  antidegradation  requirements.
 The examples  discuss  the  applicability of the  two
 categories  of  State antidegradation requirements
 under the three different remediation scenarios (i.e.,
 pump  and  treat,  natural attenuation,  and soil
 flushing).

 [Note on "current uses": Some State antidegradation
 statutes require maintenance of ground-water quality
 consistent with its "current uses."  Where the State
 statute  (or implementing  regulation)  has  defined
 "current uses," that definition should be considered an
 integral part of the requirement that helps determine
whether  EPA response  actions comply with these
 requirements, if they are determined to  be ARARs.
 For example, any State antidegradation  statute that
defines "current uses" as "present uses" would  be met
at sites where the CERCLA discharge is to an aquifer
that  is already  contaminated such that it  has no
 present uses. State antidegradation requirements that
do not define "current  uses" will generally be met at
Superfund  sites where EPA ground-water  or soil
remediation maintains, or does not adversely effect,
the current quality of the aquifer.   The following
analysis of antidegradation  requirements for  main-
     taining the  ground  water  is  based  upon  the
     assumption that they do not define "current uses."]

        Scenario #1:  Pump-and-Treat

     Assumption: The ground water is contaminated or, at a
     minimum, contains a plume of contamination.  The
     ground water is a Class I or II aquifer (which  means
     that  it is or  may be a potential source of drinking
     water).

A)  State ground-water  antidegradation  requirements
     that prohibit discharges: These are not applicable to
     ground-water pump-and-treat remedies if there is no
     "discharge," as defined under the ARAR. However,
     even if the reinjections associated with each iteration
     during pump-and-treat constitute a discharge  under
     the State statute, the statute is violated only if the
     discharge  constitutes  the  type  prohibited by the
     statute.

     Compliance:  If,  for example, the statute  prohibits
     discharges that are injurious to public health, the
     remedy generally would comply with it where the
     receiving aquifer is already contaminated.  (A dis-
     charge of contaminated effluent into a contaminated
     aquifer generally would not be  "injurious to  public
     health.")2   Moreover,  the  discharge,  as part of a
     contained  pump-and-treat  system, may not be in-
     jurious to public health. [Note:   Since  it  is EPA's
     goal  to  restore ground water to its beneficial uses,
     the Superfund program would rarely  propose  a
     pump-and-treat remedy that would degrade pristine
     or only slightly contaminated water.   In those rare
     cases where the remedy  involves reinjections to  a
     pristine or only slightly contaminated  aquifer, an
     interim action waiver might be appropriate.]

  B) State antidegradation  requirements  that  require
     ground-water  maintenance  consistent  with  its
     current uses:  These  generally are  applicable to
     ground-water pump-and-treat remediations.

     Compliance:  The remedy generally would comply
     with   these  requirements  during pump-and-treat
     remediations, if the remedy maintains  (i.e., does not
     adversely effect)  the current quality of the aquifer.
     Current quality of the  aquifer should generally be
     maintained through pump-and-treat for two  reasons:
     (1) pump-and-treat  remediation will  decrease,  not
     increase, the  contaminant  level  of the aquifer;  and
     (2) it serves to contain the contaminated plume.
 A Slalc may argue that it has interpreted (he phrase "injurious to public
health" in guidance or policies, or that court decisions have addressed the
issue, and that EPA must follow that interpretation. If such an argument
is raised, it must be referred to ORC or OGC.

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ARARs Qfs and Afs Compliance with New SDWA
 National Primary Drinking Water Regulations
     for Organic and Inorganic Chemicals

-------
  &EPA
                          United States
                          Environmental Protection
                          Agency
                            Office of
                            Solid Waste and
                            Emergency Response
Publication 9234.2-1 S/FS
         August 1991
ARARs  Q's  & A's:
Compliance with  New SDWA
National Primary  Drinking Water  Regulations
for  Organic and Inorganic Chemicals
Office of Emergency and Remedial Response
Office of Program Management OS-240
                                                        Quick Reference Fact Sheet
          Section 121(d) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as
   amended by the 1986 Superfund Amendments and Reauthorization Act (SARA), requires that on-site remedial actions must
   attain or waive Federal or more stringent State applicable or relevant  and appropriate requirements (ARARs) upon
   completion of the remedial action.  The 1990 National Oil and Hazardous Substances Pollution Contingency Plan (NCP)
   requires compliance with ARARs during remedial actions as well as at their completion, and compels attainment of ARARs
   during removal actions to the extent practicable, considering the exigencies of the situation. (See NCP, 55 FR 8666, 8852
   (March 8,1990)(codified at 40 CFR 300.435(b)(2)), and 55 FR 8666,8843 (March 8,1990)(codified at 40 CFR 300.415©).

          To implement the ARARs provision, EPA developed guidance, CERCLA Compliance With Other Laws Manual:
   Parts I and II (Publications 9234.1-01 and 9234.1-02), and has provided training to Regions and the States on  the
   identification of and compliance with ARARs. EPA also is preparing a series of short fact sheets to provide guidance on
   a number of questions that arose in developing ARAR policies, and in identifying and complying with ARARs at specific
   sites. This particular fact sheet addresses compliance with new  Safe Drinking Water Act (SDWA) National Primary
   Drinking Water Regulations for organic and inorganic chemicals, which were promulgated on January 30, 1991. (See 56
   FR. 3526 January 30, 1991, to be codified at 40 CFR Parts 141, 142, and  143.)
     Ql.    What  are  these   National  Primary
            Drinking Water Regulations?

     A.     These National Primary  Drinking Water
            Regulations (NPDWRs) establish Maximum
            Contaminant  Level Goals (MCLGs) and
            Maximum Contaminant Levels (MCLs) for
            31  organic and inorganic contaminants,
            which are effective July 30,1992. They also
            repropose  MCLGs  and  MCLs  for  5
            additional contaminants (aldicarb, aldicarb
            sulfoxide,  aldicarb   sulfone,
            pentachlorophenolj and barium) that were
            originally promulgated on July 8, 1987 and
            will  become effective January  1,  1993.
            Finally,  these  regulations   promulgate
            MCLGs   and  treatment   technique
            requirements  for   acrylamide   and
            epichlorohydrin. See Highlight 1 for  the
            definitions  of MCLs and MCLGs. For the
            full text of these SDWA regulations, see 56
            FR 3526 (January 30, 1991). See Highlight
            3  for a list of  the  contaminants and their
            corresponding MCLs and MCLGs.
                            Q2.    Are MCLs potential ARARs for CERCLA
                                   sites?

                            A.     Yes.  CERCLA  section  121(d)(2)(A)(i)
                                   requires on-site CERCLA remedial actions to
                                   attain or waive the "standards" or "levels of
                                   control"  issued  under the  SDWA  (i.e.,
                                   MCLs) where they are applicable or relevant
                                   and appropriate.  (Note:  As mentioned in
                                   the introduction to this fact sheet, the NCP
                                   extends the statutory ARARs requirement to
                                   removals,   to  the   extent  practicable
                                   considering the exigencies of the situation, as
                                   well as  remedial actions.  (See section
                                   300.415(i)(l)  and (2) of the NCP, 55 FR
                                   8843.)

                                   MCLs  are   potentially  relevant  and
                                   appropriate during a CERCLA cleanup for
                                   ground or surface waters that are current or
                                   potential sources of drinking water.  Since
                                   ground water contamination sites account for
                                   approximately 70 percent of all sites on the
                                   National Priorities List, these potentially

-------
Q3.
A.
       relevant and appropriate requirements are
       triggered frequently at CERCLA sites.

       In addition, MCLs also may be applicable
       where water at a CERCLA site is delivered
       through a public water supply system, if that
       system has at least 15 service connections or
       serves  at  least  25  year-round  residents.
       Since CERCLA projects only rarely treat tap
       water, however, there will be few instances
       in  which  MCLs   are  applicable  for
       ground-water  cleanup at a CERCLA site.
       (See NCP  Preamble,  55  FR  8750 and
       CERCLA  Compliance  With  Other Laws
       Manual.  Part I.  Publication  9234.1-01,
       August 1988, page 4-8.)
REMINDER.    It  makes  a difference
whether a requirement  is  applicable  or
relevant  and  appropriate.     The
"applicability" determination is a legal one,
and it provides the Agency with very little
flexibility. The "relevant and appropriate"
determination is a site-specific determination,
which  provides the Agency with much
greater flexibility since  the  Agency may
determine  that  a   requirement   is  not
"appropriate",  given  site  circumstances.
(Therefore it would not be an ARAR for that
site.)   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., the
ground water  is a potential drinking water
source and thus the  MCL is relevant and
appropriate, but attainment of the MCL is
technically impracticable).

In contrast, an applicable requirement, once
triggered at a site, must simply be met or
waived. (For additional information on this
issue, see "ARARs  Q's  and A's:   General
Policy.   RCRA.  CWA.   SOW A  &
Administrative  Record,"   Publication
9234.2-01/FS-A, July 1991.)

Are  MCLGs   potential   ARARs  for
CERCLA sites?

Yes. Section 121(d)(2)(A) of CERCLA also
requires on-site remedial actions to  attain
MCLGs under the SDWA "where they are
relevant  and   appropriate   under  the
circumstances" of the release or threatened
release.  Under the NCP, EPA requires that
MCLGs  set  at  levels  above zero (i.e.,
                                                   non-zero MCLGs)  be attained during a
                                                   CERCLA cleanup where  they are  relevant
                                                   and appropriate (i.e., generally for ground or
                                                   surface waters that are current or potential
                                                   sources of drinking water). If the MCLG is
                                                   equal to zero,  EPA  determined under  the
                                                   NCP that the MCLG is not appropriate for
                                                   setting  cleanup  levels.      In   those
                                                   circumstances, the corresponding MCL will
                                                   be the potentially relevant and appropriate
                                                   requirement. (See section 300.430(e)(2)(i)
                                                   (B) and  (C) of the NCP, 55 FR 8848.)
REMINDER:   Although   MCLGs  are
potentially relevant and appropriate, they are
never applicable requirements at a CERCLA
response  action  because   they  are  not
enforceable   "standards"  or  "levels  of
control."
        Highlight 1:
Definitions of MCLs and MCLGs

Maximum Contaminant Levels
(MCLs) are enforceable standards
that apply to specified contamin-
ants which EPA has determined to
have an adverse effect on human
health above certain levels.  MCLs
are  set as close as feasible  to
MCLGs.  Feasibility takes into
account both technology and cost
considerations.

Maximum Contaminant Level
Goals (MCLGs) are non-
enforceable health-based goals that
have been established at levels at
which no known or anticipated
adverse effects on the health of
persons occur and which will allow
an adequate margin of safety.

See NCP Preamble, 55 FR  8750-
8752.
                                                   Q4.    What is the status of these regulations as
                                                           potential ARARs for CERCLA projects?

                                                   A.      These regulations were  promulgated  on
                                                           January 30, 1991. The final MCLs and

-------
Highlight 2: Status of Potential TBCs, RARs, and ARARs
Number of Final/
Reproposed
MCLGs/MCLs
22 Final Non-Zero MCLGs
31 Final MCLs
2 Treatment Techniques
4 Reproposed Non-Zero
MCLGs
5 Reproposed MCLs
Potential To
Be Considered
(TBC)
(Not Pertinent)
(Not Pertinent)
(Not Pertinent)
1/31/91 -7/911
1/31/91 -7/911
Potential
Relevant and
Appropriate (RAR)
1/30/91 & Beyond
1/30/91 - 7/29/92
1/30/91 - 7/29/92
7/91 1 & Beyond
7/91 1 - 1/93'
Potential Applicable,
or Relevant and
Appropriate (ARAR)
Not Applicable
7/30/92 and Beyond
7/30/92 and Beyond
Not Applicable
1/931 and Beyond
1 Anticipated promulgation date
'Anticipated effective date
non-zero MCLGs for the 31  contaminants
became potential relevant and appropriate
requirements for all decision documents (i.e.,
Records  of Decision (RODs) and Action
Memoranda) signed on or after January  30.
1991. Because of the delayed effective date,
the final MCLs for the 31 contaminants may
be  relevant  and   appropriate,  but  not
applicable, for response actions carried  out
during  the  interim  period  prior  to  the
effective date (i.e., between January 30,1991
and July 29.  1992).  In addition, the final
non-zero MCLGs  may  be   relevant and
appropriate.  For decision documents signed
on July 30, 1992 and beyond, the MCLs for
the 31 contaminants may be  applicable or
relevant and appropriate to the  cleanup of
ground water. See Highlight 2 for the  status
of these regulations, outlining the critical
dates for final and  reproposed MCLGs and
MCLs.

In  contrast,  the reproposed  MCLs and
non-zero  MCLGs   for the   5   additional
contaminants  are on a different  regulatory
track.  They became potential criteria "to be
considered"   (TBCs)  for   all  decision
documents signed after January 30,1991  and
up  to  promulgation  (on  July  1.  1991).
Because of the delayed effective date,  for all
decision documents signed between the date
of  promulgation (July  1,  1991) and  the
effective date (expected in January 1993).
these MCLGs and MCLs may be relevant
        and appropriate, but not applicable.  On their
        effective date (scheduled for January 1993)
        and beyond, the MCLs for the 5 additional
        contaminants may be applicable, or relevant
        and appropriate.

Q5.     Are  treatment techniques  for drinking
        water contaminants  in  these regulations
        potential ARARs for CERCLA cleanups?

A.      Generally,  no.    These  NPDWRs  have
        established   treatment   techniques   for
        acrylamide and  epichlorohydrin.    These
        treatment techniques  limit the amounts of
        acrylamide and epichlorohydrin that drinking
        water  suppliers   may    add  to   treat
        contaminated  drinking   water.     Since
        CERCLA  projects generally do not supply
        drinking water as part of response actions,
        and often would be cleaning up contaminated
        ground water  through  methods (e.g., air
        stripping or natural attenuation) which do not
        involve the addition of these substances to
        treat   contaminated  ground  water,  these
        treatment techniques generally would not be
        relevant and appropriate requirements for the
        treatment of acrylamide and epichlorohydrin
        already   found  in  the  ground   water.
        However, if a CERCLA project is supplying
        drinking water as part of the response action
        and is adding these substances as part of the
        treatment process, the treatment techniques
        would be potential ARARs.

-------
Highlight 3: Jan. 30, 1991



Inorganics
Asbestos
Barium
Cadmium
Chromium
Mecury
Nitrate
Nitrite
Total Nitrate and Nitrite
Selenium
Organics
o-Dichlorobenzene
cis-1 , 2-Dichloroethylene
trans-1, 2-Dichloroethylene
1 , 2-Dichloropropane
Ethylbenzene
Monochlorobenzene
Styrene
Tetrachloroethylene
Toluene
Xylenes (total)
Pestlcldes/PCBs
Alachlor
Aldicarb
Aldicarb sulfoxide
Aldicarb sulfone
Atrazine
Carbofuran
Chlordane
Dibromochloropropane (DBCP)
2, 4-D
Ethylene dibromide (EDB)
Heptachlor
Heptachlor epoxide
Lindane
Methoxychlor
Polychlorinated biphenyls
(PCBs) (as decachlorobiphenyl)
Pentachlorophenol
Toxaphene
2, 4, 5-TP (Silvex)
National Primary Drinking Water Regulations
1/91
Final
MCLGs

7.0 MFL
—
0.005
0.1
0.002
10.0 (as N)
1 .0 (as N)
10.0 (as N)
0.05

0.6
0.07
0.1
0
0.7
0.1
0.1
0
1.0
10.0

0
—
—
—
0.003
0.04
0
0
0.07
0
0
0
0.0002
0.04
0

—
0
0.05
1/91 1/91 1/91
Final Reproposed Reproposed
MCLS' MCLGs MCLS'

7.0 MFL — —
— 2 2
0.005 — —
0.1 — —
0.002 — —
10.0 (as N) — —
1.0 (as N) — —
10.0 (as N) — —
0.05 — —

0.6 — —
0.07 — —
0.1 — —
0.005 — —
0.7 — —
0.1 — —
0.1 — —
0.005 — —
1.0 — —
10.0 — —

0.002 — —
— 0.001 0.003
— 0.001 0.004
— 0.001 0.002
0.003 — —
0.04 — —
0.002 — —
0.0002 — —
0.07 — —
0.00005 — —
0.0004 — —
0.0002 — —
0.0002 — —
0.04 — —
0.0005 — —

— 0 0.001
0.003 — —
0.05 — —

-------
Q6.     How   will   these   regulations   affect
        CERCLA RODs that were signed prior to
        January 30, 1991?

A.      These MCLGs and MCLs should not affect
        CERCLA RODs that were signed prior to
        January 30, 1991.   The NCP  states  that
        ARARs  "freeze"  at the  time  of ROD
        signature,  and   newly   promulgated
        requirements   need   only  be met  where
        necessary for  protectiveness.  See section
        300.430(f)(l)(ii)(B)(l) of the NCP, 55  FR
        8850.  This means  that only requirements
        which are promulgated (i.e.,  published as
        final regulations) prior to the date of ROD
        signature  are  potential  ARARs  for those
        RODs.   Since these SDWA  requirements
        were not promulgated until January 30,1991,
        they would not be ARARs for RODS signed
        before that date.

        While these requirements would constitute
        "newly promulgated  requirements" for pre-
        1/30/91 RODs, they  are not expected to
        require changes to existing RODs during the
        five-year  protectiveness review  of   the
        remedy. These new SDWA requirements are
        not  replacing  any  MCLGs or MCLs  that
        were outside the CERCLA risk range, with
        standards  inside that  risk range.  Therefore,
        they should not require any remedy revisions
        to maintain protectiveness  during the five-
        year review.   (See also NCP Preamble, 55
        FR 8757.)

Q7.     Are there other requirements in these
        regulations that may be ARARs or TBCs
        for CERCLA cleanups?

A.      Yes.    These regulations  also  contain
        monitoring requirements  which  may  be
        ARARs when  a CERCLA project supplies
        drinking water to affected communities as
        part of the response action.   (See NCP
        Preamble, 55  FR 8757.)  The regulations
        also contain  administrative recordkeeping
        and reporting requirements.  Although such
        requirements are neither ARARs nor TBCs,
        the  Regions   are strongly  encouraged to
        consult with other agencies, as appropriate,
        to ensure coordination.  (See NCP Preamble,
        55 FR 8757.)
Q8.     Are there other proposed or promulgated
        SDWA  regulations  that  are  potential
        ARARs or TBCs for CERCLA actions?

A.      Yes.  On June 7,  1991, EPA promulgated
        final MCLGs for lead and copper (see 56 FR
        26461, June 7, 1991).  Copper now has an
        MCLG  of 1.3 parts per million.  This is a
        potential   relevant   and   appropriate
        requirement  for  CERCLA   ground   and
        surface  water remediation.   However, the
        MCLG for lead was set at zero, which is not
        considered to be an "appropriate"  standard
        for CERCLA cleanups. (See NCP Preamble,
        55 FR 8751-8752.)  This SDWA regulation
        did not set any MCLs for either contaminant,
        but it did set a treatment technique for lead
        which is a potential ARAR.  (Note: EPA is
        planning  to  provide  additional  ARARs
        guidance on lead in the near future.)

        In addition, NPDWRs for 24 contaminants
        were proposed on July 25, 1990 (see 55 FR
        30370, July  25, 1990).  From July 25,  1990
        until their expected promulgation (expected
        in March 1992), the  MCLs  and non-zero
        MCLGs found in these proposed regulations
        constitute TBCs for the cleanup of ground
        water and may be considered for  decision
        documents signed during that period.   See
        Highlight  4  for   a  chart  of  the  24
        contaminants  and  their  corresponding
        proposed MCLs and MCLGs.

        This fact sheet does not address two  other
        SDWA  regulations:   Final, for 8 volatile
        organic  compounds, on July 8, 1987 (see 52
        FR   25690),   and,   proposed,  for   the
        radionuclides radon, uranuim, and radium, on
        July 18, 1991 (see 56 FR 33050).
        NOTICE:  The policies set out in this fact
        sheet are not final Agency action, but are
        intended solely as guidance.  They are not
        intended, nor can they be relied upon, to
        create any rights enforceable by any party in
        litigation with  the United States. Response
        personnel may decide to follow the guidance
        provided in this  fact sheet, or to act at
        variance with  the guidance, based on  an
        analysis  of site-specific circumstances. The
        Agency  reserves  the right to change  this
        guidance at any time without public notice.

-------
Highlight 4: Proposed National Primary Drinking Water Regulations
TBCs until Promulgation Date (Expected in March 1 992)
Inorganics
Antimony
Beryllium
Cyanide
Nickel
Sulfate
Thallium
Organ Ics
Andipates
[Di(ethylhexyl)adipate]
Dalapon
Dichloromethane (methylene
chloride)
Dinoseb
Diguat
Endothall
Endrin
Glyphosate
Hexachlorobenzene
Hexachlorocyclopentadine
(HEX)
Oxamyl (Vydate)
PAHs [Benzo(a)pyrene]
Phthalates
[Di(ethylhexyl)phthalate]
Picloram
Simazine
1 ,2,4-Trichlorobenzene
1 ,1 +2Trichlorethane
2,3,7,8-TCDD (Dioxin)
MCLGS
0.03
00.001
0.2
0.1
400/500
0.0005

0.5

0.2
0

0.007
0.02
0.1
0.002
0.7
0
0.05

0.02
0
0

0.5
0.001
0.009
0.003
0
MCLs
0.01/0.005
0.001
0.2
0.1
400/500
0.002/0.001

0.5

0.2
0.005

0.007
0.02
0.1
0.002
0.7
0.001
0.05

0.02
0.0002
0.004

0.5
0.001
0.009
0.005
5x10(-8)

-------
     because  FWQC  recommended at  zero  are  not
     ARARs, the three alternative values are TBCs.

Q9.  What  other  factors  should  be  considered  in
     determining  whether  FWQC  are  relevant  and
     appropriate requirements?

A.   CERCLA requires  that in determining whether  a
     FWQC  constitutes  a  relevant  and  appropriate
     requirement, EPA must consider the designated or
     potential use of the surface  or ground water, the
     environmental media affected, the purposes for which
     such criteria were developed, and the latest available
     scientific information available (see CERCLA section
     121(d)(2)(B)(i)).  With regard to this last factor,
     OWRS periodically publishes FWQC for additional
     constituents and occasionally  updates existing ones.
     Prior to using an FWQC for a particular constituent,
     RPMs  should consult the IRIS data base maintained
     by the EPA Office of Research and Development and
  contact their Regional Water Office for the most
  recent listing, to ensure consideration of the latest
  available scientific information.  See Attachment 1
  for a list of the FWQC, current as of June 15, 1990.
  [Note:  the FWQC chart issued by the EPA Office
  of Water Regulations and Standards, dated January
  2, 1987, is no longer current and should not be used
  as a reference.]

NOTICE: The policies set out in this ARARs Q's and
  A's are intended solely for guidance. 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
  the guidance provided in this Q's and A's, or to act
  at variance with the guidance, based on an analysis
  of specific site circumstances.   The Agency also
  reserves  the right  to change  this guidance at  any
  time without public notice.

-------
         ATTACHMENT 1
FEDERAL WATER QUALITY CRITERIA
A




(i) COMPOUND


1 Ant irony
2 Arsenic
3 Beryl liui
4 Cadmui
5a Chroiiui (III)
b Chroiuu* (VI)
6 Copper
7 Lead
8 Mercury
9 Nickel
10 Seleniun
11 Silver
12 Thalliui
13 Zinc
14 Cyanide
15 Asbestos
16 2.3.7.8-TCOO (Dioxin)
17 Acrolein
18 Acrylonitrile
19 Benzene
20 Bronfort
21 Carbon Tetrachloride
22 ChlorobenzeiM
23 ChlorodibroKNKthane
24 Chloroethanc
25 2-Chloroethylvinyl Ether
26 Chlorofori
27 DichlorobrocoMthaoe
28 1.1-Dichloroetbane
29 1.2-Oichloroctbaae
30 1.1-Oichloroethyleae
31 1 T nirhlnrnprnpan
32 1.3-0ichloropropyl«ae
33 Ethyl benzetM
34 Methyl Bn»id«
35 Methyl Chloride
36 Methyl ene Chloride
37 1.1.2.2-Tetrachloro«thane
38 Tetrachloroethylene
39 Toluene
40 1.2-Trani-Oichloroethylene
41 1.1.1-Trichloroethane
42 1.1.2-Tnchloro«thane
43 Tnchloroethylene
44 Vinyl Chloride





CAS
Niwber

7440360
7440382
7440417
7440439
7440473
7440473
7440508
7439921
7439976
7440020
7782492
7440224
7440280
7440666
57125
1332214
1746016
107028
107131
71432
75252
56235
108907
124481
75003
1107S8
67663
75274
75343
107062
75354
78875
542756
100414
74839
74873
75092
79345
127184
108883
156605
71556
79005
79016
75014
B
FRESHWATER

Criterion Criterion
Max HUB Continuous
Cone. Cone.
(uq/L) (ug/L)
Bl B2

360 190

3.9 ** l.l «
1700 ** 210 **
. 16 11
• 18 *« 12 •*
82 ** 3.2 **
2.4 0.012
1400 " 160 **
20 5
4.1 ••

120 ** 110 •*
22 5.2






























C
SALTWATER

Criterion Criterion
Max HUB Continuous
Cone. Cone.
(uq/L) (uq/L)
Cl C2

69 36

43 9.3

1100 50
2.9 2.9
220 8.5
2.1 0.025
75 8.3
300 71"
2.3

95 86
! 1






























0
HUMAN HEALTH
(10"* risk for carcinogens)
For Consumption of:
Water & Organisus
Organ ISM Only
(uq/L) (uq/L)
01 D2
14 * 4300 *
0.018 *t 0.14 *t
0.0076 t 0.131 t
10 * 170 *
33000 * 670000 *
170 * 3400 *
1300 •
50
0.14 0.15
510 * 3800 *
104 « 6800 *
91 •
2.0 * 7.2 *

700 • 215000 *
30000 fibers/L
0.000000013 t 0.000000014 t
320 780
0.059 *t 0.67 *t
1.2 *t 71 *t
5.7 't 470 »t
0.25 *t 4.5 *t
488
5.7 *t 470 *t

0.032 *t 18 *t
5.70 *t 470 *t
5.70 *t 470 *t

0.38 *t 99 *t
0.057 *t 3.2 *t

10 * 1700 *
3100 • 29000 •
48 * 4000 *
5.7 *t 470 »t
4.7 *t 1600 *t
0.17 *t 11 *t
0.8 8.85
10000 * 300000 »
700 * 140000 *
3100 * 170000 •
0.60 *t 42 *t
2.7 t 81 t
2 t 525 t

-------
A




(1) COMPOUND


45 2-Chlorophenol
46 2.4-Dichlorophenol
47 2.4-Diiethylphenol
48 2-Methyl-4.6-Dinitrophenol
49 2,4-Oinitrophenol
50 2-Hitr-ophenol
51 4-Nitrophenol
52 3-Kethyl-4-Chlorophenol
53 Pentachlorophenol
54 Phenol
55 2.4.6-Tnchlorophenol
56 Acenaphthene
57 Acenaphthylene
58 Anthracene
59 Benzidine
60 Benzo( a) Anthracene
61 Benzo(a)Pyrene
62 3.4-Benzofluoranthene
63 Benzo(ghi)Perylene
64 Benzo(k)Fluorinthene
65 Bis(2-Chloroethoxy)Methane
66 Bis(2-Chloro«thyl)Sther
67 Bis(2-Chloroisopropyl)Ether
68 Bis(2-Ethylhexyl)Phthalate
69 4-Bronophenyl Phenyl Ether
70 Butylbenzyl Phthalate
71 2-Chloronaphthalene
72 4-Chlorophenyl Phenyl Ether
73 Chrysene
74 Oibenz(a.h)Anthracene
75 1.2-Oichlorobenzene
76 1.3-Dichlorobenxen«
77 1.4-Oichlorobenzefle
78 3,3'-OichlorobenndiM
79 Diethyl Phthalate
80 Dinethyl Phthalate
81 Di-n-8utyl Phthalate
82 2.4-Oinitrotoluene
83 2.6-Oinitrotoluene
84 Di-n-Octyl Phthalate
35 1.2-Diphenylhydrazine
86 Fluoranthene
87- Fluorene
88 Bexachiorobenzene
89 Reaachlorobutadiene





CAS
Nutber

95578
120832
105679
534521
51285
88755
100027
59507
87865
108952
88062
83329
208968
120127
92875
56553
50328
205992
191242
207089
111911
111444
108601
117817
101553
85687
91587
7005723
218019
53703
95501
541731
106467
91941
34662
131113
84742
121142
606202
117840
122667
206440
86737
118741
87683
B
FRESHWATER

Criterion Criterion
Max i mm Continuous
Cone. Cone.
(uq/L) (uq/L)
Bl B2







^
20 *** 13 «*«




































C
SALTWATER

Criterion Criterion
Max muii Continuous
Cone. Cone.
(uq/L) (uq/L)
Cl C2








13 7.9




































D
HUMAN
(10" risk for

8 B A 1 T R
carcinogens)
For Consumption of:
Hater &
Organ i sns
(uq/L)
01
120 •
93 *

13.4
70 •



1000 *
21 •
1.2 t
1200 *
0.0028 t
0.0028 t
0.00012 *t
0.0028 t
0.0028 t
0.0028 t
0.0028 t
0.0028 t

0.031 *t
1400 *
1.8 *t

3000 *


0.0028 t
0.0028 t
2700 »
400
400
0.04 *t
23000 •
313000
2700 •
A
0.11 t


0.041 *t
42
0.0028 t
0.00072 t
0.44 *t
Organism
Only
(uq/L)
02

790 *

765
14000 *



29000 *
4600 '
3.6 t
2700 *
0.0311 t
0.0311 t
0.00054 *t
0.0311 f
0.0311 t
0.0311 t
0.0311 t
0.0311 t

1.4 *t
170000 «
5 9 *t

5200 *


0.0311 t
0.0311 t
17000 *
2600
2600
0.077 *t
120000 *
2900000
12000 *
9. X
1 t


0 54 *T
54
0.031 t
0.00074 t
50 *t

-------
A




(») COMPOUND


90 Hexachlorocyclopentadlene
91 Hexachloroethane
92 Indeno(1.2.3-cd)Pyrene
93 Isophorone
94 Naphthalene
95 Nitrobenzene
96 N-Nitrosodmethylanne
97 N-Nitrosodi-n-Propylamne
98 N-Nitrosodiphenylaiine
99 Phenanthrene
100 Pyrene
101 1.2.4-Tnchlorobenzene
102 Aldnn
103 alpha-BBC
104 beta-BBC
105 gana-BBC
106 delta-BBC
107 Chlordane
108 4-4'-OOT
109 4.4'-OOB
110 4.4'-000
111 Dieldnn
112 alpha-Endosulfan
113 beta-Endosulfan
114 Endosulfan Sulfate
115 Endrin
116 Endrin Aldehyde
117 Heptachlor
118 Heptachlor Epoxide
119 PCB-1242
120 PCB-1254
121 PCB-1221
122 PCB-1232
123 PCB-1248
124 PCB-1260
125 PCB-1016
126 Toxaphene





CAS
Nunber

77474
67721
193395
78591
91203
98953
62759
621647
86306
85018
129000
120821
309002
319846
3198S7
58899
319868
57749
50293
72559
72548
60571
959988
33213659
1031078
72208
7421934
76448
1024573
1336363
11097691
11104282
11141165
12672296
11096875
12674112
8001352

FRESH

Criterion
Haxiiui
Cone.
(uq/L)
Bl




-

-





3$


2t

2.4 t
1.1 t


2.5 t
0.22 t
0.22 t

0.18 I

0.52 t
0.52 t






0.73
B
WATER

Criterion
Continuous
Cone.
(uq/L)
B2















0.08 $

0.0043 t
0.001 t


0.0019 t
0.056 t
0.056 t

O.OOZ3 t

0.0038 t
0.0038 t
0.014 t
0.014 t
0.014 t
0.014 1
0.014 t
0.014 t
0.014 t
0.0002

SALT

Criterion
MaxmuR
Cone.
(uq/L)
Cl












1.3 t


0.16 $

0.09 1
0.13 t


0.71 $
0.034 t
0.034 t

0.037 t

0.053 t
0.053 t






0.21
C
MATER

Criterion
Continuous
Cone.
(uq/L)
C2

















0.004 t
0.001 t


0.0019 t
0.0087 t
0.0087 t

0.0023 t

0.0036 t
0.0036 1
0.03 t
0.03 1
0.03 t
0.03 t
0.03 t
0.03 t
0.03 1
0.0002
0
HUMAN
(10" risk for

HEALTH
carcinogens)
For Consumption of:
Hater &
Organists
(uq/L)
01
242 *
2.0 *t
0.0028 t
6900 *

17 *
0.00069 *t
0.005 *t
5.0 *t
0.0028 t
0.0028 t

0.00013 *t
0.0039 *t
0.014 *t
0.019 t

0.00058 *t
0.00059 *t
0.00059 «t
0.00083 *t
0.00014 *t
0.93 *
0.93 *
0.93 *
0.76 «
0.76 *
0.00021 *t
0.00010 *t
0.000044 *t
0.000044 *t
0.000044 *t
0.000044 «t
0.000044 *t
0.000044 *t
0.000044 *t
0.00073 *t
Organises
Only
(uq/L)
02
17400 *
8.9 «t
0.0311 t
490000 *

1900 *
8.1 *t
8.5 «t
16 *t
0.0311 t
0.0311 t

0.00014 *t
0.013 *t
0.046 »t
0.063 f

0.00059 *t
0.00059 *t
0.00059 *t
0.00083 *t
0.00014 *t
2.0 •
2.0 •
2.0 »
0.81 *
0.81 «
0.00021 *t
0.00011 *t
0.000045 »t
0.000045 «t
0.000045 *t
0.000045 *t
0.000045 *t
0.000045 »t
0.000045 *t
0.00075 «t

-------
  *  Criteria  revised to reflect current agency q/  or RfO.  as contained in the Integrated Risk  Intonation  Systei  (IRIS).

 **  Freshwater aquatic life criteria for these netals are expressed as a function of total hardness (*g/L). as follows
     (where exp represent* the base e exponential function).  (Values displayed above correspond to a total hardness of
     100 ng/L.)

                          CMC • exp{i.lln(hardness) I  * b,}     CCC - expd^llnfhardness)!  f b^
               Cadaiui              1.128         -3.828                0.7852        -3.490
               Copper               0.9422        -1.464                0.8545        -1.465
               Chroaim (III)       0.8190         3.688                0.8190         1.561
               Lead                 1.273         -1.460                1.273         -4.705
               Nickel               0.8460         3.3612               0.8460         1.1645
               Silver               1.72          -6.52
               Zinc                 0.8473         0.8604               0.8473         0.7614

***  Freshwater aquatic life criteria for pentachlorophenol are expressed as a function of pB.  and are calculated  as
     follow.  (Values displayed above correspond to a pB of 7.8.)

                OC • exp(1.005(pfl) - 4.830)         CCC • expU.OOS(pfl) - 5.290)

  t  Criteria based on carcinoqeiucity (10"4 risk).

  t  Aquatic life criteria for these compounds were issued in 1980 utilizing the 1980 Guidelines for criteria development.
     The acute values shown are final acute values (fav) and according to the 1980 Guideline! the Acute values were
     intended to be interpreted as instantaneous naxmun values, and the chronic values shown were interpreted as  24  -  hour
     average values.  EPA has not updated these criteria pursuant to the 1985 Guidelines.   However,  as an approximation.
     dividing the final acute values in coluins Bl and Cl by 2 yields a Criterion Maxima Concentration.  No maenc
     changes are required for coluins B2 and C2. and EPA suggests using these values directly as Criterion Continuous
     Concentration.


3KNERAL HOTRS:

1)    This chart lists all of BPA's priority toxic pollutants whether or not criteria recotaendations are available.   BlanX
     spaces indicate the absence of criteria recosaendation*.

!)    The following chesucals have organoleptic based criteria recomendations that *re not included on this chart  (for
     reasons which are discussed in the preamble):

              Copper               2,4-Diietnylphenoi
              Zinc                 3-Methyl-4-Chlorophenol

}>    For purposes of this roletulnng. freshwater criteria apply at salinity levels equal to or less than 5 parts per
     thousand (ppt); taltwiter criteria apply at salinity levels greater than 5  ppt (0/00).

j/15/90
                                                                                                   .1. .-:..,-.  -    .   • Jj

                                                                                          >. ', i  ;  •}  »''t' .».'  ,""  f   ••   '
                                                                                        ,*.-
                                                                                                  <# ' •  / %,'

-------