&EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9234.2-05/FS
December 1989
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;
« Air environmental or facility siting law;
* ''<
• Promulgated; -.
• • -,* •_
• More stringent tha'n the-Federal requirement;
* , ^ ^ ^
• Identified in a timely'manner; >and
T '<• '
• 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)
State siting requirements may-.risfrict the location
of existing and expanding or -new hazardous waste
treatment, storage, and disposal (TSD) facilities
(Highlight 2 provides the triggers for State siting
Printed on Recycled Paper '
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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 pre-
Temple, Barker, and Sloane, Inc., Review of State 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 are 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 State 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 States 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;
e 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.
B. EPA Responsibilities for Communicating
Waivers
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
Scoping of the RI/FS
• Lead and support agencies Initiate discussion
ot potential ARARs and TBCs, focusing on
chemical- and location-specific requirements
1
\
Site Characterization |
• 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 haa 30 days from receipt
of request to respond.
1
r
Development of Alternatives |
* Lead agency begins preliminary consideration
of action-specific ARARs.
1
f
Screening of Alternatives
• Lead agency begins Identification of
action-specific ARARs.
• Lead Agency notifies the support agency of
alternatives that passed Initial screening.
T
I: Detaied Analysis ot Alternatives
• Before Comparative Analysis begins, lead
agency requests action-specific and any addi-
tional ARARs and TBCs from support agency.
• Support agency has 30 days from receipt
of request to respond.
*
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.
t
g: Record ofDecfckm (ROD)
• Lead agency summarizes ARAR compliance
In ROD and provides draft ROD to support
agencies for review.
t
RemedWDetJsn/Remedlal Action
• Lead agency:
— provides a copy of the RD to support
agencies for review;
— Identifies additional ARARs based upon
design specifications/changes;
— verifies protectiveness 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 NCP 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 adopted 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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