United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9234.2-08/FS
May 1990
OB* ARARs Q's & A's
Compliance With the Toxicity Characteristics Rule: Part I
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 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 1 or 2 are found in the
leachate at concentrations equal to or greater than
their regulatory levels.
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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 1), 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 consituent
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/I
100.0 mg/1
1.0 mg/1
5.0 mg/1
0.02 mg/I
5.0 mg/1
0.4 mg/1
0.2 mg/1
10.0 mg/1
1.0 mg/1
5.0 mg/1
0.5 mg/1
10.0 mg/1
2,4,5-TrichIoropheno-
xypropionic acid
1.0 mg/1
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., between March
29, 1990 and 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 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 forth-
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coming TC implementation pact Sheet.) If EPA
determines during the remedy review that the TC
requirements must be attained, a ROD amendment
or Explanation of Significant Differences (BSD)
should be issued. See 55 FR 8666, 8757 (March 8,
1990) (to be codified at 40 CFR
300.430(f)(l)(ii)(B)).
Q7. What are some potential overall effects of the TC
rule on the Superfund 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, 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, 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 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.
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 Part II to this
ARARs Q's & A's Fact Sheet on the TC rule.
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