Section 121(d) of CERCLA, as amended by the 1986 Superfund Amendments and Reauthorization Act (SARA), requires that
on-site remedial actions must attain (or waive) Federal and more stringent State applicable or relevant and appropriate requirements
(ARARs) of environmental laws upon completion of the remedial action. The revised National Contingency Plan of 1990 (NCP)
requires compliance with ARARs during remedial actions as well as at completion, and compels attainment of ARARs during removal
actions to the extent practicable, considering the exigencies of the situation. See NCP, 40 CFR section 300.415(i) (55 FR 8666,8843)
and section 300.435(b)(2) (55 FR 8666, 8852) (March 8, 1990).
To implement the ARARs provisions, 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. These "ARARs Q's and A's " are part of a series of Fact Sheets that provide guidance on a number of questions that
arose in developing ARARs policies, in ARARs training sessions, and in identifying and complying with ARARs at specific sites. This
particular Q's and A's Fact Sheet addresses the Fund-balancing waiver, which is one of six statutory waivers that may be invoked
to allow the selection of a remedy that does not meet all ARARs.

United States Office of
Environmental Protection Solid Waste and
Agency Emergency Response
Publication 9234.2-13/FS
January 1991
oEPA
ARARs Q's & A'S:


The Fund-Balancing Waiver

Office of Emergency and Remedial Response

Office of Program Management OS-240
Quick Reference Fact Sheet
Ql. What is the Fund-balancing waiver? How does it
work?
A: The Fund-balancing waiver is one of the six statutory
waivers that may be invoked under specified
circumstances to allow selection of a remedy that does not
meet all ARARs (see CERCLA Section 121(d)(4)(F)). A
waiver based on Fund balancing first appeared in the 1985
NCP at 40 CFR section 300.68(i)(5)(ii). The concept of a
Fund-balancing waiver was codified by the Superfund
Amendments and Reauthorization Act of 1986 (SARA),
which amended the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980
(CERCLA) (see Highlight 1 for specific statutory
language and citation).
The Fund-balancing waiver may apply when the costs
needed to meet an ARAR for an action would be so high
as to threaten the availability of Fund monies for remedies
at other sites (see Preamble to the NCP, 55 FR 8666,
8750). Highlight 2 provides an example of the
Fund-balancing waiver. The waiver applies only to
Fund-financed remedial actions under CERCLA Section
104. Even when the waiver is invoked, the alternative
remedy selected must still be protective of human health
and the environment and meet all other standards (e.g.,
cost-effectiveness, permanent solutions, etc.). (See
Preamble to the NCP, 55 FR 8666, 8750.) Regions should
consult with Headquarters when considering use of this
waiver.
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Q2. What is the purpose of the Fund-balancing waiver?
A. The purpose of this waiver is to ensure that EPA's ability
to carry out a comprehensive national response program is
not compromised by a disproportionately high expenditure
at a single Superfund site.
Highlight 1: STATUTORY LANGUAGE
Section 121(d)(4)(F) of CERCLA. as amended,
states that a remedial action not meeting an ARAR may
be selected if:
"in the case of a remedial action to be undertaken
solely under Section 104 using the Fund, selection of
a remedial action that attains such level or standard
of control will not provide a balance between the
need for protection of public health and welfare and
the environment at the facility under consideration,
and the availability of amounts from the Fund to
respond to other sites which present or may present
a threat to public health or welfare or the
environment, taking into consideration the relative
immediacy of such threats."

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Highlight 2: EXAMPLE OF THE
FUND-BALANCING WAIVER
At site X. a State water-quality standard was
identified as an ARAR. Attaining this State standard
would have required the removal and oil-site disposal of
millions of cubic yards of contaminated sediments in the
streams and reservoir, at an estimated cost of more than
$1 billion. The cost of attaining the ARAR exceeds the
threshold of four times the cost of a typical operable unit
and thus, the Fund-balancing waiver was considered.
Based on an assessment of the Fund, and needs at other
sites, the Agency decided to invoke the waiver. The
waiver allowed selection of an alternative remedy that
involved partial capping and surface-water diversion at a
fraction of the original cost, while still achieving
protectiveness and complying with other ARARs.
Q3. When should the Fund-balancing waiver be
considered? Is there an absolute threshold for
invoking the waiver?
A. The Fund-balancing waiver is to be routinely considered
when the cost of meeting an ARAR for an operable unit is
four times the national average cost of remediation of all
operable units. (See Preamble to the NCP, 55 FR 8666,
8750.) However, there is no set amount at which the
waiver must be invoked.
Currently the threshold for considering the waiver is 4 x
$14.4 million, or $57.6 million. This average cost for an
operable unit is based on the Outyear Liability Model
(OLM), which is EPA's approach to estimating its
long-term resource needs. The average cost figure was
developed through an analysis of nearly 200 Records of
Decision (RODs) that have been signed since the passage
of SARA (i.e., FY 1987 to present). As a group, this body
of documents is the most comprehensive and
representative source of remedial action cost estimates
available within the Agency. The OLM average cost of an
operable unit is reported in the FY 1989 Superfund Annual
Report to Congress. (Revisions will be reported in
subsequent Annual Reports and also made available to
Regions through subsequent fact sheets.)
Q4. Does the waiver have to be invoked when the costs
of meeting an ARAR are estimated to exceed the
dollar threshold?
A. No. Exceeding the threshold establishes a presumption that
the waiver should be considered but does not require that
it be invoked In instances where the threshold is reached
but the Fund-balancing waiver is not invoked, either the
ROD or the Administrative Record should document the
fact that the waiver was considered and provide the
rationale. For example, the Region might determine that the
cost of performing this remedy is not so disproportionately
high as to threaten the availability of the Fund to respond
to other sites that may present a threat to human health
and the environment.
Q5. Can the Fund-balancing waiver be invoked even
when the cost threshold is not exceeded?
A. Yes. EPA has reserved the right to invoke this waiver in
specific situations when the cost of meeting the ARAR is
expected to fall below the threshold but EPA has
determined that the single site expenditure would place a
disproportionate burden on the Fund. (See Preamble to the
NCP, 55 FR 8666, 8750.)
Q6. Is the waiver available for other Federal agencies or
potentially responsible parties (PRPs)?
A. No. CERCLA Section 121(d)(4)(F) clearly restricts use of
this waiver to remedial actions conducted under CERCLA
Section 104 and financed by the Fund. The waiver is
unavailable to other Federal agencies or PRPs, which use
other monies for their CERCLA activities. (See also
Preamble to the NCP, 55 FR 8666, 8750.)
Q7. Most remedies have to comply with more than one
ARAR. If the Fund-balancing waiver is being
considered, which ARAR should be waived?
A. The ARAR that increases the potential remedial action
costs by the threshold amount should be considered for the
Fund-balancing waiver. However, the remedial action must
comply with other ARARs that do not excessively raise
the cost of remediation.
Q8. Can the Fund-balancing waiver be used with other
waivers?
A. Yes. For example, the Fund-balancing waiver could be
used to waive an excessively expensive ARAR at the
same site where it is necessary to waive another ARAR
because of technical impracticability.
Q9. Can the Fund-balancing waiver be used for removal
actions?
A. In theory, yes, but this is highly unlikely given the monetary
limits and limited scope of removal actions. It is more likely
that compliance with an excessively expensive ARAR for
a removal action would be determined to be beyond the
scope of the action, and therefore impracticable under the
NCP. (See NCP at 40 CFR section 300.415(i)(2) and
Preamble to the NCP, 55 FR 8666, 8696.)
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Q10. Can the Fund-balancing waiver be invoked only at
Fund-lead orphan sites (i.e., sites where no PRPs
have been identified)?
A. No. The Fund-balancing waiver may also be invoked at a
Fund-lead site where PRPs exist and may potentially
settle. However, if PRPs do settle and subsequently take
over the project, they cannot take advantage of the waiver
-- the action will no longer be solely funded under Section
104 and the Fund-balancing waiver will no longer be
available. Likewise, the waiver is not available for mixed-
funding cases involving contributions by both PRPs and the
Fund. Therefore, where circumstances for settlement with
PRPs potentially exist, the Region should anticipate this
possibility by including a contingent remedy (without the
waiver) in the ROD. If such a contingent remedy has not
been included in the ROD, and a settlement with PRPs is
reached, the ROD should be amended to remove the
waiver or an Explanation of Significant Differences (ESD)
should be issued. The ROD should be amended if
removing the waiver would fundamentally alter the basic
features of the selected remedy. (See NCP at 40 CFR
section 300.435 (c)(2)(ii) and Preamble to the NCP, 55 FR
8666, 8771-8772.) An ESD may be issued if removing the
waiver significantly changes, but does not fundamentally
alter, the remedy selected in the ROD. (See NCP at 40
CFR section 300.435(c)(2)(i) and Preamble to the NCP, 55
FR 8666, 8770-8772.)
Qll. If the Fund-balancing waiver has not been invoked in
the ROD because a PRP settlement was anticipated,
can it be subsequently invoked if no settlement ever
occurs?
A. Yes. If a settlement with PRPs is not reached, and the
remedy will be performed using Fund monies under
CERCLA Section 104, the Fund-balancing waiver can be
invoked by a ROD amendment or, in appropriate cases, an
ESD.
Q12. Will the answer to the previous questions ever lead
to an incentive for PRPs not to settle?
A. It could. However, the statute is clear that the Fund-
balancing waiver is available only for Fund-financed
actions. Of course, if such an incentive not to settle exists,
PRPs may be encouraged to settle through the issuance of
a unilateral order and the resulting possibility of fines and
treble damages. (See CERCLA Sections 106 and
107(c)(3).)
Q13. If a remedy is undertaken solely using the Fund, and
the Fund-balancing waiver is invoked, can the
Agency later bring an action to recover its costs?
A. Yes. The fact that the statute allows EPA to select a
remedy made less expensive by the waiver does not affect
the right of the Agency to be reimbursed later under
CERCLA Section 107 for the costs of that remedy.
Q14. What language should be used in the ROD for
invoking the Fund-balancing waiver?
A. Highlight 3 provides sample language for various sections
of the ROD. This language is based on the hypothetical
site circumstances presented in Highlight 2 of this fact
sheet and a hypothetical State law. For additional language,
see Guidance on Preparing Superfund Decision
Documents (the "ROD Guidance"), EPA/540/G-89/007,
July 1989, page 6-5.
Highlight 3: SAMPLE ROD LANGUAGE
Sample language lor the Statutory Determinations
Section (of the Declaration):
The selected remedy is protective of human health
and the environment, complies with or meets the
requirements for a waiver of Federal and State
requirements that are legally applicable or relevant
and appropriate to the remedial action, and is
cost-effective. This remedy utilizes permanent
solutions. . .
Sample language lor the Description of Alternatives
Section (of the Decision Summary):
The first remedial alternative, which involves the
removal and olT-site disposal of contaminated
stream sediments, complies with the State water-
quality standard at Reg. Sec. X. 100. because it
ensures that stream water contaminant levels will
not exceed .001 ppm. The State water-quality
standard is applicable to this remedial alternative
because the standard requires maintenance of all in-
State streams, reservoirs, and lakes at health-based
levels, as established in State regulations at Sec.
X. 100.
The second remedial alternative, which involves
partial capping and surface-water diversion, justifies
a waiver of the State water-quality standard found
at Reg. Sec. X. 100. based on the Fund-balancing
waiver found in CERCLA Section 121 (d)(4)(F)
and NCP section 300.430(0(1) (ii)(C)(6). Attaining
the State water-quality standard for this operable
unit (as contemplated by the first remedial
alternative) would cost more than $1 billion. EPA
has determined that this site expenditure would not
provide a balance between the need for protection
of human health and the environment at this site,
and the availability of Fund monies to respond to
other sites that may present a threat to human
health and the environment.
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Highlight 3: SAMPLE ROD LANGUAGE
(CONTINUED)
Sample language for the Summary of Comparative
Analysis of Alternatives Section (of the Decision
Summary):
EPA has determined that each remedial alternative
is protective of human health and the environment,
and complies with (or justifies a waiver of)
applicable or relevant and appropriate requirements.
Sample language for the Statutory Determinations
Section (of the Decision Summary):
The selected remedy complies with or waives all
Federal or State ARARs. The State water-quality
standard was waived for surface-water cleanup at
this site because attainment of this requirement
would cost more than $1 billion, which would not
provide a balance between the need lor protection
of human health and the environment at this site and
the availability of Fund monies to respond to other
sites that may present a threat to human health and
the environment. (See CERCLA Section
121(d)(4)(F) and the NCP. 40 CFR section
300.430(0(1 )(ii)(C)(6).)

NOTICE: The policies set out in this fact sheet 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 fact sheet, or to act at variance with the
guidance, based on an analysis of site-specific circumstances.
The Agency also reserves the right to change this guidance at
any time without public notice.

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