v>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 Papar
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C. Definitions of ARARs and TBCs
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 i: 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 & 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 hi 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 that 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 their 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 are 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"
f
*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,
19S8). "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 dose 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
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 om 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.
HL FOCUS ON
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.
4: STAWTOIY AMR WAOTKS
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 Eiwiroazneat
Waiver,
4. Technical Impracticability Waiver;
5, Inconsistent Application ol 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 Highlight 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
J; EXAMPLE OF INTERIM
At a raiciag site, interim measures were used to
address drainage of contaminated water from a
mine. The acJioa 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 Saal remedy was implemented, which
would address fa-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 fc EXAMPLE OP 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 (see
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 ia 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 $100 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 $L4 billion. At the time of
ROD signature, the F\md 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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