United States
Environmental Protection Agency
Office of Solid Waste and
Emergency Response
OERR 9234.2-01 FS
May 1989
A EPA
Superfund Fact Sheet
ARARs Q's & A's
General Policy
RCRA
CWA
SDWA
#1
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). In section 121 (d), SARA requires attainment
of Federal ARARs, and of State ARARs in State environmental or facility siting laws when the requirements are promulgated, more stringent than
Federal laws, and identified by the State in a timely manner. Under EPA regulation and policy, removal actions must comply with ARARs to the extent
practicable.
To implement the ARARs provision, EPA has developed guidance, the CERCLA Compliance With Other Laws Manual (OS WER Directive 9234.1 -
01), and has provided training to Regions and States on identification of and compliance with ARARs. These "ARARs Q's and A's" are pan of a series
that provide answers to a number of questions that arose in developing ARARs policies, in ARARs training sessions, and in identifying and complying
with ARARs at specific sites. Responses covered here reflect current program practice and include policies and language from the proposed NCP.
Changes resulting from finalizing the NCP following public comment may alter some policies or language quoted from the proposed NCP.
General Policy
DEFINITIONS OF "APPLICABLE" AND
"RELEVANT AND APPROPRIATE"
"Applicable requirements mean those cleanup stan-
dards, standards of control, and other substantive
environmental protection requirements, criteria, or
limitations promulgated under Federal or State law
that specifically address a hazardous substance, pollut-
ant, contaminant, remedial action, location, or other
circumstance at a CERCLA site." [Proposed NCP, 53
ER 51435, December 21,1988] In other words, an appli-
cable requirement is one that a private party would have to
comply with by law if the same action was being taken
apart from CERCLAauthority. All jurisdiction^ prerequi-
sites of the requirement must be met in order for the
requirement to be applicable.
If a requirement is not applicable, it still may be relevant
and appropriate. "Relevant and appropriate require-
ID£Qts mean those cleanup standards [that]... address
problems or situations sufficiently similar to those
encountered at the CERCLA site that their use is well
suited to the particular site." [Proposed NCP, 53 ER
51436, December 21,1988] A requirement that is relevant
and appropriate may "miss" on one or more prerequisite
but still make sense at the site, given the circumstances of
the site and release.
Q1. What difference does it make if a requirement is
"applicable" or "relevant and appropriate"?
Why make that distinction?
A. While it is true that once a requirement is determined to be
relevant and appropriate, it must be complied with as if it
were applicable, there are significant differences in the
identification and analysis of the two types of require-
ments. The "applicability" determination is a legal one,
while the determination of "relevant and appropriate"
relies on professional judgment, considering environ-
mental and technical factors at the site. There is more
flexibility in the relevance and appropriateness determina-
tion: a requirement may be "relevant," in that it covers situ-
ations similar to that at the site, but may not be "appropri-
ate" to apply for various reasons, and therefore not well
suited to the site. In some situations, only portions of a
requirement or regulation may be judged relevant and ap-
propriate; if a requirement is applicable, all substantive
parts must be followed.
For example, if closure requirements under Subtitle C of
RCRA are applicable (e.g., a landfill that received RCRA
hazardous waste after 1980 or where the Superfund action
constitutes disposal of hazardous waste), the landfill must
be closed in compliance with one of the closure options
available in Subtitle C regulations. These options are
closure by removal (clean closure), which requires decon-
tamination to health-based levels, or closure with waste in
place (landfill closure), which requires impermeable caps
and long-term maintenance.
However, if Subtitle C closure requirements are not appli-
cable, then a "hybrid closure," which includes other types
of closure designs, could also be used. The hybrid closure
option arises from a determination that only certain closure
requirements in the two Subtitle C closure alternatives are
relevant and appropriate. (See proposed NCP, 53 FR
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OERR 9234.2-01 FS
51446, for further discussion of RCRA closure require-
ments and the concept of hybrid closure.)
Q2. Does an applicable requirement take
precedence over one that is relevant and
appropriate? In other words, if an applicable
requirement is available, will that be the ARAR,
rather than one that might otherwise be
relevant and appropriate?
A. No, a requirement may be relevant and appropriate even if
another requirement legally applies to that situation,
particularly when the applicable requirement is not really
designed to address the type or magnitude of problems
encountered at Superfund sites. For example, RCRA
Subtitle D requirements for covers for solid waste facilities
may be applicable when RCRA hazardous waste is not
present at the site. However, the soil cover required under
Subtitle D may not always be sufficient to limit leachate at
a Superfund site with substantial amounts of waste similar
to RCRA hazardous waste. In such a situation, some
Subtitle C closure requirements may be relevant and
appropriate to some parts of the site, even though Subtitle
D requirements legally apply.
However, one factor that affects whether a requirement is
relevant and appropriate is whether another requirement
exists that more full y matches the circumstances at the site.
In some cases, this might be a requirement that was direct! y
intended for, and is applicable to, the particular situation.
For example, Federal Water Quality Criteria will general! y
not be relevant and appropriate when there is an appl icable
State Water Qua! ity Standard promulgated specifically for
the pollutant and water body, which therefore "more fully
matches" the situation.
Q3. Is compliance with ARARs required tor a "no
action " decision ?
A. No. Section 121 cleanup standards, including compliance
with ARARs, apply only to remedial actions the Agency
determines should be taken under CERCLA Section 104
and 106 authority. A "no action" decision can only be
made when no remedial action is necessary to reduce,
control, or mitigate exposure because the site or portion of
the site is already protective of human health and the
environment. See Guidance on Preparing Superfund De-
cision Documents (OSWER Directive 9355.3-02) for
further discussion of "no action" decisions.
Q4. Does an ARAR always have to be met, even if it
is not necessary to ensure protectiveness?
A. Yes. Attainment of ARARs is a "threshold requirement"
in SARA, as is the requirement that the remedies be
protective of human health and the environment. If a
requirement is applicable or relevant and appropriate, it
must be met, unless one of the six waivers is used. ARARs
represent the minimum that a remedy must attain; it may
sometimes be necessary to go beyond what ARARs require
to ensure that a remedy is protective.
ON-SITE VS. OFF-SITE ACTIONS
The requirements under CERCLA for compliance with
other laws differ in two significant ways for on-site and
off-site actions. First, the ARARs provision only
applies to on-site actions; off-site actions must comply
fully only with any laws that legaUy apply to that action.
Therefore, off-site actions need only comply with
"applicable" requirements, not with "relevant and
appropriate" requirements; ARAR waivers are not
available for requirements that apply to off-site actions.
Second, on-site actions must comply only with thesufe
stantive portions of a given requirement, or those that
pertain directly to actions or conditions in the
environment; on-site activities need not comply with
administrative requirements, such as obtaining apermitor
recordkeeping and reporting. Off-site actions must
comply with both substantive and administrative
requirements.
Q5. If wastes from non-contiguous sites are
combined on one site for treatment, is the
treatment viewed as off-site activity, and the
unit therefore subject to permitting?
A. Sites may be combined for remedial action if it is cost-
effective to do so and the following statutory criteria
[CERCLA Section 104(d)(4)] are met: the sites must be
geographically close or pose similar threats to public
health and theenvironment. Combinedremediesmustalso
be cost-effective and should not result in any significant
additional short-term impacts on public health and the
environment. The combined remedial action constitutes
on-site action, and compliance with permitting or other
administrative requirements would not be required. (See
OSWERDirective9347.0-l and 40 FR 37076. September
21,1984)
Q6. Are environmental resource laws, such as the
Endangered Species Act, the National Historic
Preservation Act (NHPA), and the Wild and
Scenic Rivers Act, potential ARARs tor
CERCLA actions?
A. Yes, requirements in these laws are potential ARARs.
However, these laws frequently require consultation with
and, under some laws, concurrence of other Agencies or
groups, such as the Fish and Wildlife Service or the
Advisory Council on Historic Preservation. Administra-
tive requirements such as consultation or obtaining ap-
proval are not required for on-site actions. However, it is
strongly recommended that the lead agency nevertheless
consult with the admini stering agencies to ensure compli-
ance with substantive requirements, e.g., the NHPA re-
quirement that actions must avoid or minimize impacts on
cultural resources.
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Q7. Are environmental standards and requirements
of Indian tribes potential ARARs?
A. Yes. Indian tribal requirements as potential ARARs for
CERCLA actions taken on tribal lands are treated consis-
tently with State requirements. Tribal requirements that
meet the eligibility criteria for State ARARs, i.e., they are
promulgated (legally enforceable and of general applica-
bility) and more stringent than Federal requirements, are
potential ARARs.
Resource Conservation and
Recovery Act (RCRA)
Q8. How can RCRA listed waste be "delisted" when
wastes will remain on-site?
A. If a listed waste is "delisted," it is no longer considered a
"hazardous waste" and is subject to Subtitle D require-
ments for solid waste, rather than the more stringent
Subtitle C requirements.
Only the substantive requirements for delisting a RCRA
hazardous waste must be met for wastes that will remain
on-site and will not be handled a? hazardous. These are the
standards in 40 CFR 260.22(a)(l ) and (2), which state that
a waste that "does not meet an y of the criteria under which
the waste was listed as a hazardous or an acutely hazardous
waste" and for which there is no "reasonable basis to
believe that factors (including other constituents) other
than those for which the waste was listed could cause the
waste to be a hazardous waste" is 'delistable.' Administra-
tive requirements, which include requirements to undergo
a petition and rulemaking process and to develop and
supply specific information, need not be met on-site.
Wastes containing constituents at health-based levels, as-
suming direct exposure, will meet the standards for delist-
ing. Wastes with constituents at higher levels may also be
delistable, since the RCRA delisting process allows fate
and transport modeling, generally based on the waste being
managed in a solid waste facility. The models used by the
RCRA program for delisting should be used in determining
whether constituent concentrations above health-based
levels are delistable. e.g., for wastes that will be land
disposed (See 50 ER4886, November 27, 1 985 and 5 1 ER
41082, November 1 3. 1986). The Assistance Branch in the
Office of Solid Waste can also provide assistance and
advice in delisting a waste.
The expectation that the waste will meet delisting levels
should be documented in the RI/FS and the ROD and
supported by information comparable to that required for
delisting, as appropriate for the waste and site (see the
' EPA 530-
OERR 9234.2-01 FS
ered non-hazardous should be identified in the ROD.
Unless treatability studies done during the RI/FS make
delisting reasonably certain, the ROD should also address
how the waste will be handled if it does not achieve
delistable levels, based on full-scale treatability studies or
actual performance of the remedy during RD/RA. If the
waste cannot be delisted. an explanation of significant
differences should be issued to notify the public that the
contingency remedy will be implemented.
Q9. Are RCRA financial responsibility requirements
potential ARARs for Superfund?
A. No, because they do not pertain directly to actions or con-
ditions in the environment. Rather, the requirements
support implementation of RCRA technical standards by
ensuring lhat RCRA facility owners or operators have the
financial resources available to address releases and com-
ply with closure and post-closure requirements. CERCLA
agreements with PRPs, and ultimately the Fund itself,
achieve essentially the same purpose.
Q10. RCRA hazardous waste is placed into an
existing pit that had received hazardous waste
in the past, but is not subject to RCRA Subtitle
C regulations because the pit closed before
1980. Would the minimum technology
requirements (MTR) be applicable for the pit
because it is a "new unit"?
A. No, the pit is not considered a "new unit." MTR will not
apply when disposing of waste in an existing unit or area of
contamination, although a lateral expansion of the unit
would have to meet MTR. (Note: both new and existing
surface impoundments are subject to MTR if they receive
waste after November 1988. In addition, the land disposal
restrictions (LDR) can trigger MTR indirectly. LDR
restricts placement of a "soft hammer" waste and a re-
stricted waste under a capacity variance to units in compli-
ance with MTR. If such a waste is placed in the existing
waste pit, the pit would have to comply with MTR, even
though it is not a "new unit.")
Clean Water Act (CWA)
Safe Drinking Water Act (SDWA)
SW-85-003, April 1985). Generally, the constituent levels
that must be achieved in order for the waste to be consid-
Q11. Do antidegradation laws for ground water,
increasingly common in State laws, mean that
the aquifer must be restored to its original
quality before contamination from the site
occurred?
A. Generally, antidegradation laws are prospective and are in-
tended to prevent fjurJh£Ld£gQidaiiQn.of water quality. At
a CERCLA site, therefore, a State ground water antidegra-
dation law might preclude the injection of partially treated
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OERR 9234.2-01 FS
water into a pristine aquifer. It would not, however, require
cleanup to the aquifer's original quality prior to contami-
nation, nor would it preclude reinjection of partially treated
water back into the already contaminated portion of the
aquifer, as long as the reinjection does not increase the
existing level of contamination.
ARARS FOR GROUND WATER CLEANUP
MCLs promulgated under SDWA generally will be the
relevant and appropriate standard for ground water that is or
may be used for drinking, considering its use, value, and
vulnerability as described in the EPA's Ground-water
Protection Strategy (August 1984), e.g., for Class I and II
aquifers.
Q12. There are some situations where an aquifer that
is a current or potential drinking water source,
treatable to MCLs at the tap, cannot be
remediated to MCLs in the aquifer, e.g., where
background levels of contaminants are above
MCLs. Would MCLs still be relevant and
appropriate?
A. The MCLs are generally relevant and appropriate for any
aquifer that is a potential drinking water source. If the
MCLs cannot be attained (e.g., because of complex hydro-
geology due to fractured bedrock), an ARAR waiver for
technical impracticability should be used. The same
approach should be followed if attainment of MCLs is
impracticable because background levels of chemicals
subject to CERCLA authority (e.g., man-madechemicals)
arehigher than MCLs, and no area-wide remediation of the
aquifer is feasible.
Q13. Many new MCLs will be promulgated or existing
ones revised in upcoming years. Will new or
revised MCLs, when promulgated, need to be
incorporated into the remedy, possibly altering
it? Should a proposed MCL be used as the
remediation goal in the ROD?
A. Under EPA policy, if a new ARAR is promul gated after the
ROD is signed, the remedy should be examined in light of
the new requirement to ensure that the remedy is still
protective. If the remedy is still protective, it would not
have to be modified, even though it does not meet the new
requirement.
Since MCLs often are a key component in defining protec-
tive remediation levels, new or revised MCLs may reveal
that the remedy chosen is not protective. In such cases, the
remedy would have to be modified accordingly. This
could occur at any time after the ROD is signedduring
remedial design, remedial action, or at the five-year re-
view.
However, a new MCL will not always mean the remedy
must be changed. If the existing remedy is still within the
risk ranee, even considering the new MCL. the remedy
would not have to be modified because the remedy is still
protective. For example, if the new MCL represents a risk
of 10*. while the selected remediation level results in a 104
risk, the remedy is still protective.
At some sites, however, a new MCL will require
significantchanges to the remedy, changes that can be very
costly after implementation of the remedy has begun.
Therefore, if a proposed MCL is available before the ROD
is signed, the preferred remedy should be evaluated to
determine how the MCL, if promulgated as proposed,
would affect the remedy. Will the preferred remedy
achieve the proposed MCL? Could the remedy achieve the
proposed MCL with minor design modifications? Would
the proposed MCL require significant changes, such as
requiring remediation in ground water that is currently
deemed fully protective because it meets all MCLs?
As a general rule, the proposed MCL should be used as a
TBC to establish the remediation level in the ROD when
the proposed MCL is more stringent than the existing one
or regulates a new chemical (unless the MCL is
controversial and therefore likely to change). This reflects
the importance of MCLs in Superfund's determination of
protectiveness and as a cleanup standard for the
community. It also minimizes the need for later changes to
the remedy when changes may be more difficult and costly
to make.
Q14. If there are MCLs for some, but not all, of the
significant contaminants at a site, should the
10-tpoint of departure be used forgJl the
contaminants, or should the MCLs be used
where available and the remediation levels for
the other contaminants adjusted accordingly?
A. Generally, the MCLs should be used to set the remeriiarinp
levels when available, provided the MCLs cumulatively
are within the risk range. The levels for other chemicals
should be set to ensure that they do not significantly
increase the total risk associated with the chemicals with
MCLs and that the cumulative risk from all chemicals is
within the risk range. The 1O* point of departure is used
when there are no MCLs or, when risks are summed, when
the MCLs for the chemicals in the medium are not suffi-
ciently protective under the circumstances.
For example, if the risk from chemicals with MCLs totals
1x10s, the remediation levels for the other chemicals
should generally be set so that the total cumulative risk
does not exceed that risk level. Final levels for the chemi-
cals without MCLs may also be driven by the treatment
necessary to attain the MCLs.
For some mixtures of chemicals, it may be necessary or
more technically practicable to adjust the remediation
levels even of those chemicals with MCLs to more
stringent levels. Even in such cases, the final remediation
levels cannot exceed the respective MCLs, since the MCLs
are ARARs, and the total risk of all contaminants should be
within the risk range to ensure the remedy is protective.
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