&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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