£EPA
United States
Environmental Protection
Agency
Office of
Solid Waste end
Emenjancy Weapons
DIRECTIVE NUMBER: 9234.0-05
TITLE: Interim Guidance on Compliance with Applicable or
Relevant and Appropriate Requirements
APPROVAL DATE: July 9, 1987
EFFECTIVE DATE: July §, US?
ORIGINATING OFFICE: 0ERR/OPM/PAS
0 FINAL
STATUS:
REFERENCE (other documents):
9234.0-02 CERCLA Compliance with other
Statutues.
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE D>
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dEPA
United States Environmental Protection Agency
Washington. DC 2OMO
OSWER Directive Initiation Request
1. Directive Number
9234.0-05
2. Qriginaiof Information
Name of Contact Person
Arthur Weissman
Mail Code
WH-548D
Office
OSWER/OERR/OPM/PAS
Telephone Number
382-2182
3. Title
Interim Guidance on Compliance with Applicable or Relevant and Appropriate Requirements
4 Summary of Directive (include brief statement at purpose) me guidance addresses tne requirement in
CERCLA, as amended by the Superfund Amendments and Reauthorization Act of 1986, that
remedial actions comply with applicable or relevant and appropriate requirements (ARARs)
of Federal laws and more stringent, promulgated State laws. The guidance describes how
requirements are generally to be identified and applied, and discusses specifically
compliance with State requirements and certain surface water and groundwater standards.
Keywords
Superfund, CERCLA. SARA, Other environemtnal requirements. Compliance
a. Does this Directive Supersede Previous Directives)? [ ] Yes | [ No What directive (number, title!
Does It Supplement Previous Directives)?
Yes
No What Directive (number, title)
9234.0-02 CERCLA Compliance with other Environmental Statutes
.- ^ ~~ ^*~ ^^a ^^^^^^^^^
Draft Level
LJ A Signed by AA/DAA I _ I 8 Signed by Office Director I _ ! C For Review & Comment
Din
Development
his Request Meets OSWER Directives System Format
rectives C
Date
Name and Title of Approving Official
Date
J. './inston Porter, Assistant Administrator
OS WER OS WER OS WER
DIRECTIVE DIRECTIVE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUL 9198T
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
9234.0-05
MEMORANDUM
SUBJECT: Interim Guidance on Compliance with Applicable or Relevant and
Appropriate
FROM: J. Winston Torter
Assistant Administrator
TO: Addressees
Executive Summary
The guidance addresses the requirement in CERCLA, as amended by the
Superfund Amendments and Reauthorization Act of 1986, that remedial actions
comply with applicable or relevant and appropriate requirements (ARARs) of
Federal laws and more stringent, promulgated State laws. The guidance
describes how requirements are generally to be identified and applied, and
discusses specifically compliance with State requirements and certain
surface water and groundwater standards. "Applicable" and "relevant and
appropriate" are defined, and the three types of ARARs (chemical-, location-,
and action-specific) are described. Guidance is given on how and at what
points ARARs are to be used in the remedial process. Eligible State require-
ments are defined, with particular reference to "promulgated," and direction
is given on evaluating siting laws and on using the waiver regarding
consistency of application. Finally, the guidance discusses the use of
water standards specified in the law (MCLGs, FWQC, ACLs), and describes the
use of MCLs as cleanup standards for surface water or groundwater that is
or may be used for drinking.
Purpose
This memorandum provides interim guidance on compliance with other
Federal and State environmental laws in conducting CERCIA remedial actions.
The guidance is intended to help define the nature, scope, and use of
applicable or relevant and appropriate requirements. The guidance is not
intended to be comprehensive or exhaustive. The Agency is currently
developing a guidance manual that provides detailed information on potential
ARARs in the major Federal environmental statutes.
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Background
Section 121(d) of CERCLA, as amended by the Superfund Amendments and
Reauthorization Act of 1986 (SARA), requires that Fund-financed, enforcement,
and Federal facility remedial actions comply with requirements or standards
under Federal and State environmental laws. The requirements that must be
complied with are those that are applicable or relevant and appropriate to
the hazardous substances, pollutants, or contaminants at a site or to the
circumstances of the release. Compliance is required at the completion of
the remedial action for hazardous substances, pollutants, or contaminants
that remain on-site. Any such requirements may be waived under six condi-
tions provided that protection of human health and environment is still
assured.
SARA essentially codified and expanded upon the Agency's Compliance
Policy, which was included in the National Contingency Plan (revised
November 20, 1985). The major difference between that policy and the new
statutory requirement is that the latter includes more stringent, promul-
gated State environmental standards as potentially applicable or relevant
and appropriate requirements, and Maximum Contaminant Level Goals and
Federal Water Quality Criteria as potentially relevant and appropriate
requirements.
GENERAL GUIDANCE ON IDENTIFYING AND USING ARARs
This section defines what ARARs are, describes the different types
of ARARs, and discusses how they are applied to the remedial process.
Definition of ARARs
A requirement under other environmental laws may be either "applicable"
or "relevant and appropriate" to a remedial action, but not both. A two-
tier test may be applied: first, to determine whether a given requirement
is applicable; then, if it is not applicable, to determine whether it is
nevertheless relevant and appropriate.
Applicable requirements means those 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 a CERCLA site.
"Applicability" implies that the remedial action or the circumstances
at the site satisfy all of the jurisdictional prerequisites of a require-
ment. For example, the minimum technology requirement for landfills under
RCRA would apply if a new hazardous waste landfill unit (or an expansion
of an existing unit) were to be built on a CERCLA site.
Relevant and appropriate requirements means those cleanup standards,
standards of control, and other substantive environmental protection
requirements, criteria, or limitations promulgated under Federal or State
law that, while not "applicable" to a hazardous substance, pollutant,
contaminant, remedial action, location, or other circumstance at a CERCLA
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site, address problems or situations sufficiently similar to those encoun-
tered at the CERCLA site that their use is well suited to the particular
site.
The relevance and appropriateness of a requirement can be judged by
comparing a number of factors, including the characteristics of the
remedial action, the hazardous substances in question, or the physical
circumstances of the site, with those addressed in the requirement. It
is also helpful to look at the objective and origin of the requirement.
For example, while RCRA regulations are not applicable to closing undis-
turbed hazardous waste in place, the RCRA regulation for closure by
capping may be deemed relevant and appropriate.
A requirement that is judged to be relevant and appropriate must be
complied with to the same degree as if it were applicable. However,
there is more discretion in this determination: it is possible for only
part of a requirement to be considered relevant and appropriate, the
rest being dismissed if judged not to be relevant and appropriate in a
given case.
Non-promulgated advisories or guidance documents issued by Federal
or State governments do not have the status of potential ARARs. However,
as described below, they may be considered in determining the necessary
level of cleanup for protection of health or environment.
Types of ARARs
There are several different types of requirements that Superfund
actions may have to comply with. The classification of ARARs below is
offered for illustrative purposes.
0 Ambient or chemical-specific requirements set health or risk-
based concentration limits or ranges in various environmental media for
specific hazardous substances, pollutants, or contaminants. Examples:
Maximum Contaminant Levels, National Ambient Air Quality Standards.
These requirements may set protective cleanup levels for the chemicals
of concern in the designated media, or else indicate an acceptable level of
discharge (e.g., air emission or wastewater discharge taking into account
water quality standards) where one occurs in a remedial activity. If a
chemical has more than one such requirement, the more stringent ARAR
should be complied with.
There are at present a limited number of actual ambient or chemical-
specific requirements. In order to achieve remedies that are protective
of health and environment, it may frequently be necessary to use chemical-
specific advisory levels such as Carcinogenic Potency Factors or Reference
Doses. While not actually ARARs, these chemical-specific advisory levels
may factor significantly into the establishment of protective cleanup
levels. Guidance for establishing such chemical-specific, health-based
cleanup levels is given in the Superfund Public Health Evaluation Manual
(EPA 540/1-86/060, Oct. 1986).
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0 Performance, design, or other action-specific requirements
set controls or restrictions on particular kinds of activities related to
management of hazardous substances, pollutants, or contaminants. Examples:
RCRA regulations for closure of hazardous waste storage or disposal units;
RCRA incineration standards; Clean Water Act pretreatment standards for
discharges to POIWs.
These requirements are triggered not by the specific chemicals
present at a site but rather by the particular remedial activities that
are selected to accomplish a remedy. Since there are usually several
alternative actions for any remedial site, very different requirements
can come into play. These action-specific requirements may specify
particular performance levels, actions, or technologies, as well as
specific levels (or a methodology for setting specific levels) for
discharged or residual chemicals.
0 Locational requirements set restrictions on activities depending
on the characteristics of a site or its immediate environs. Examples:
Federal and State siting laws for hazardous waste facilities; sites on
National Register of Historic Places.
These requirements function like action-specific requirements.
Alternative remedial actions may be restricted or precluded depending on
the location or characteristics of the site and the requirements that
apply to it.
Using ARARs
This section explains how and where requirements may be applied in
the remedial planning process.
First, actual ARARs can be identified only on a site-specific basis.
They depend on the specific chemicals at a site, the particular actions
proposed as a remedy, and the site characteristics. Guidance is being
developed on the potential ARARs under the major Federal environmental
statutes for various activities, locations, and chemicals.
Where there are no specific ARARs for a chemical or situation, or
where such ARARs are not sufficient to be protective, one should identify
pertinent health advisory levels (such as Reference Doses or Carcinogenic
Potency Factors) as described above in order to ensure that a remedy is
protective.
The different ARARs that may apply to a site and its remedial action
should be identified and considered at multiple points in the remedial
planning process, namely:
- During scoping of the RI/FS, chemical-specific and location-specific
ARARs may be identified on a preliminary basis.
- During the site characterization phase of the Remedial Investigation,
when the public health evaluation is conducted to assess risks at a
site, the chemical-specific ARARs and advisories and location-specific
ARARs are identified more comprehensively and used to help determine
the cleanup goals.
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- During development of remedial alternatives in the Feasibility Study,
action-specific ARARs are identified for each of the proposed alterna-
tives and considered along with other ARARs and advisories.
- IXiring detailed analysis of alternatives all the ARARs and advisories
for each alternative are examined as a package to determine what is
needed to conply with other laws and be protective.
- When an alternative is selected it must be able to attain all ARARs
unless one of the six statutory waivers is invoked.
- IXiring remedial design the technical specifications of construction
must ensure attainment of ARARs.
Note that CERCLA §121(e) exempts any on-site response action from
having to obtain a Federal, State, or local permit.
In general, on-site actions need comply only with the substantive
aspects of these requirements, not with the administrative aspects. That
is, neither applications nor other administrative procedures such as
permitting or administrative reviews are considered ARARs for actions
conducted entirely on-site, and therefore should not be pursued during
the remedial planning or the remedial action. However, the RI/FS, Record
of Decision, and design documents should demonstrate full compliance with
all substantive requirements that are ARARs. Also, other Federal and
State program offices should be consulted as appropriate to ensure that
remedies are substantively compliant with identified ARARs.
GUIDANCE ON IDENTIFYING STATE ARARs
This section describes the basic factors to be considered in identi-
fying State requirements for Superfund remedial actions.
As mandated by CERCLA §121(d)(2)(A), remedies must comply with "any
promulgated standard, requirement, criteria, or limitation under a State
environmental or facility siting law that is more stringent than any
Federal standard, requirement, criteria, or limitation" if the former is
applicable or relevant and appropriate to the hazardous substance or
release in question.
States are required by CERCLA to identify State ARARs "in a timely
manner," that is, in sufficient time to avoid inordinate delay or duplica-
tion of effort in the remedial process. Regions should expect to work
closely with their States so that the appropriate ARARs are identified
at critical stages in the process. At a minimum, chemical-specific and
location-specific ARARs should be identified after site characterization,
and action-specific ARARs should be identified after initial screening
of alternatives (prior to detailed analysis) for alternatives that pass
through the screening. To the extent possible, Regions and States should
negotiate to try to resolve any differences of opinion about ARARs.
Eligible Requirements
The statute specifically limits the scope of potential requirements
to those that are promulgated. Promulgated" requirements are laws
imposed by State legislative bodies and regulations developed by State
agencies that are of general applicability and are legally enforceable.
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State advisories, guidance, or other non-binding policies, as well
as standards that are not of general application, cannot be treated as
requirements under CERCLA. However, as with their Federal counterparts,
State advisories may still be considered in determining an appropriate,
protective remedy.
General State goals that are duly promulgated (such as a non-
degradation law) have the same weight as explicit, numerical standards,
although the former have to be interpreted in terms of a site and
therefore may allow more flexibility in approach. Similarly, State laws
or regulations that prescribe methods for deriving numerical standards
for specific cases may also be potential requirements.
On-site actions need comply only with the substantive aspects of a
State requirement, not with the administrative aspects. Where the require-
ment involves review by a State board based on explicit criteria, the
best approach is to incorporate the substantive criteria into the RI/FS
and remedy selection process and to maintain close consultation with
appropriate State representatives.
Limitations on State Siting Laws
CERCLA §121(d)(2)(C) puts special limitations on the applicability
of State requirements or siting laws for hazardous waste facilities that
could result in a State-wide prohibition of land disposal. Specifically,
in order to be treated as potentially applicable or relevant and appropriate
requirements, such laws must:
1) be of general applicability and be formally adopted
2) be based on technical (e.g., hydrogeologic) or other relevant
considerations
3) not be intended to preclude land disposal for reasons other than
protection of health or environment.
In addition, the State must arrange and pay for additional costs for out-
of-State or other disposal necessitated by such a law.
The first criterion is similar to the criterion that a requirement be
promulgated, as discussed above. The second criterion requires that such
a law be based on sound scientific or technical considerations, such as
groundwater flow, surficial geology, and engineering design. The third
criterion requires seme evidence that health or environmental protection
motivates the prescribed restrictions; the introductory sections of a
law, the nature of the technical considerations, or the legislative history
can be used to make this determination.
Consistency of Application
CERCLA §121(d)(4)(E) allows a State requirement to be waived if it
has not been consistently applied by the State in similar circumstances
at other remedial actions. The waiver cannot be used if the State has
demonstrated the intention to consistently apply the requirement.
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Consistency of application by a State may be determined by examining
the following:
- Application of requirement at similar sites or in similar response
circumstances (considering nature of contaminants or media affected,
characteristics of waste and facility, degree of danger or risk, etc.)
- Proportion of cases (including enforcement actions) in which require-
ment was not applied out of total actions where it could have been
applied
- Reason for non-application of requirement in past cases
- Intention to consistently apply requirement in future as shown by
policy statements, legislative history, site remedial planning
documents, or State responses to Federal-lead sites; newly promul-
gated requirements shall be presumed to embody this intention
unless there is contrary evidence.
All previous actions by States since promulgation that relate to similar
remedial actions may be considered in evaluating consistency.
GUIDANCE ON APPLYING SPECIFIED WATER STANDARDS
CERCLA §121(d)(2)(A) and (B) explicitly mention three kinds of surface
water or groundwater standards with which compliance is potentially
required - Maximum Contaminant Level Goals (MCLGs), Federal Water-Quality
Criteria (FWQC), and alternate concentration limits (ACLs) where human
exposure is to be limited. This section describes these requirements
and how they may be applied to Superfund remedial actions. The guidance
is based on Federal requirements and policies; more stringent, promulgated
State requirements (such as a stricter classification scheme for ground-
water) may result in application of even stricter standards than those
specified here.
Background
These three standards or criteria each derive from separate statutes
and have different purposes and uses.
MCLGs are developed under the Safe Drinking Water Act as chemical-
specific health goals used in setting enforceable drinking water standards,
known as Maximum Contaminant Levels (MCLs), for public water supply systems.
MCLGs are based entirely on health considerations and do not take cost or
feasibility into account. Moreover, as health goals MCLGs are set at
levels where no known or anticipated health effects may occur, including
an adequate margin of safety. MCLs are required to be set as close as
feasible to the respective MCLGs, taking into consideration the best tech-
nology, treatment techniques, and other factors (including cost). However,
as the standard for public water supplies, MCLs are fully protective of
human health and (for carcinogens) fall within the acceptable risk range of
10"4 to 10~7. Furthermore, for non-carcinogens, which are the majority of
contaminants, MCLs will nearly always be set at the same level as the
respective MCLGs. Also, these standards assure that even sensitive
populations will experience no adverse health effects. Thus, there will
be no difference in the protectiveness of MCLGs and MCLs for most contami-
nants, and, as discussed above, MCLs provide a sufficient level of protec-
tiveness even for carcinogens.
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FWQC are developed under the Clean Water Act as guidelines fron which
States determine their water quality standards. Different FWQC are derived
for protection of human health and protection of aquatic life.
ACLs are one of three possible standards available under the Subpart F
Groundwater Protection Standards of RCRA. For setting both a trigger and
a cleanup level for remediating groundwater contamination, an ACL, the
background concentration, or for a small group of chemicals the MCL can be
selected for a given site.
Statutory Mandate
CERCLA §121(d)(2) states that remedial actions shall attain applicable
or relevant and appropriate requirements under the Safe Drinking Water
Act, the Clean Water Act, and RCRA, and specifically shall attain MCLGs
and FWQC where they are relevant and appropriate under the circumstances
of the release or threatened release. It further states that for FWQC
this determination will be based on the designated or potential use of
the water, the media affected, the purposes of the criteria, and current
information.
CERCLA §121(d)(2)(B)(ii) limits the use of ACLs that are set above
health-based levels based on projections that health-based levels will be
achieved at a likely point of human exposure. Such a point of exposure
may not be beyond the Superfund facility boundary unless the groundwater
discharges into surface water and does not cause a statistically signifi-
cant increase of contaminants in the surface water. To apply such an
ACL outside the facility, moreover, the remedial action must include
enforceable measures to prevent use of any contaminated groundwater.
Application
In determining the applicable or relevant and appropriate requirements
for remedial actions involving contaminated surface water or groundwater,
the most important factors to consider are the uses and potential uses of
the water and the purposes for which the potential requirements are
intended.
The actual or potential use of water, and the manner in which it is
used, will determine what kinds of requirements may be applicable or
relevant and appropriate. For Class Ill-type groundwater that is not
suitable for drinking because of high salinity or widespread contamination
and that does not affect drinkable groundwater, drinking water standards
are neither applicable nor relevant and appropriate. For Class I- and
Class II-type groundwater or surface water that is or may be used for
drinking, drinking water standards are applicable or relevant and appro-
priate, and the surface water or groundwater must ultimately be cleaned
up to such levels.
For water that is or may be used for drinking, the Maximum Contaminant
Levels (MCLs) set under the Safe Drinking Water Act are generally the
applicable or relevant and appropriate standard. MCLs are applicable at
the tap where the water will be provided directly to 25 or more people or
will be supplied to 15 or more service connections. Otherwise, where
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surface water or groundwater is or may be used for drinking, MCLs are
generally relevant and appropriate as cleanup standards for the surface
water or the groundwater.
A standard for drinking water for a contaminant for which there is an
MCL may be more stringent than the MCL to ensure adequate protection in
special circumstances, such as where either multiple contaminants in ground-
water or multiple pathways of exposure present extraordinary risks. In
setting a level more stringent than the MCL in such cases, a site-specific
determination should be made by considering MCLGs, the Agency's policy on the
use of appropriate risk ranges for carcinogens, levels of quantification,
and other pertinent guidelines. Prior consultation with Headquarters is
encouraged in such cases.
When MCLs do not exist for contaminants identified at the site, cleanup
levels should be set using chemical-specific advisory levels. Cleanup
levels should be selected such that the total risk of all contaminants
falls within the acceptable risk range of 10~4 to 10~7. In cases where non-
carcinogens are present, cleanup levels should be based on acceptable levels
of exposure as determined by the Reference Dose, taking into account the
effects of other contaminants at the site.
It should be noted that while MCLs are generally the cleanup standards,
as described above, the treatment necessary to attain an MCL level for one
chemical (or a protective level for a chemical without an MCL) may result in
an actual level for another chemical that is below its respective MCL (or
pr otec t ive leve1).
A more stringent FWQC for aquatic life may be found relevant and
appropriate when there are environmental factors that are being considered
at a site, such as protection of aquatic organisms. The Agency is still
formulating a position with respect to the use of FWQC for protection of
human health.
Guidance on the use of ACLs based on limitations on exposure will be
forthcoming.
* * *
Further Information
For further information on the subject matter in this interim guidance,
contact Steve Smith (FTS-382-2200) or Arthur Weissman (FTS-382-2182) of
the Policy and Analysis Staff, Office of Emergency and Remedial Response.
Addressees
Regional Administrators, Regions I-X
Regional Counsel, Regions I-X
Director, Waste Management Division, Regions I, IV, V, VII, and VIII
Director, Emergency and Remedial Response Division, Region II
Director, Hazardous Waste Management Division, Regions III and VI
Director, Toxics and Waste Management Division, Region IX
Director, Hazardous Waste Division, Region X
Environmental Services Division Directors, Region I, VI, and VII
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