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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