United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9234 2-13/FS
January 1991
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
Section 121(d) of CERCLA, as amended by the 1986 Superfund Amendments and Reauthonzauon 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 1 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.
Ql. What is the Fund-balancing waiver?
work?
How does it
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 Reauthonzation Act of 1986 (SARA), which
amended the Comprehensive Environmental Re-
sponse, 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 in-
voked, 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.
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 I: STATUTORY LANGUAGE
Section !21(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 con-
sideration, 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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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 con-
sidered 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 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 esti-
mating 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 presump-
tion 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 Adminiqra ve
Record should document the fact that the waiver was
considered and provide the rationale. For aYnple,
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
hnman health and the environment.
Q5. Can the Fund-balancing waiver be Invoked even
when the cost threshold Is 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 EB
8666, 8750.)
Q6. Is the waiver available for other Federal agencies or
potentially responsible parties (PRPs)?
A. No CERCLA Section 121(d)(4)(F) dearly restricts
usc of this waiver to remedial actions conducted
under CERCL.A Section 104 and financed by the
Fund. The waiver is unavailable to other Federal
agencies or PRPs, which use other monies for their
C CLA activities. (See also Preamble to the NCP,
55 8666, 8750.)
Q7. Most remedies have to comply with more than one
ARAR. If the Fund-balancing waiver Is being
ci Idered, which ARAR should be waived?
A. The ARAR that increases the potential rentedial
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
walvvii ?
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
a ons?
A. In theoly, yes, but this is highly unlikely given the
monetaty 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
Nap, 55 f 8666 86% )
mghalglit 2: EXAMPLE OF THE
BAL4 N G WAWER
At site X, a State water-quality standard was
Identified as an ARAR. Attaining this State
standard would ha required the removal and off-
site disposal of millions of cubic yards of
contaminated sed1m nis in the streams and
reservoir, at an estimated cost of more than Si
billion. The cost of attaining the ARAR exceeds
the threshold of four times the cest of a typical
operable unit, and thus, the Fund-balancing waiver
was considered. Based on an assessment of the
Fund, and needs at other sitei 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.
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Q1O. Can the Fund-b nclng 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 mired-
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.
11 such a contingent remedy has 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)(li) 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
8666,8770-8772.)
Qil. If the Fund-balandng waiver has been Invoked In
the ROD because a PRP settlement was antldpated,
can It be subsequently Invoked If no settlement ever
o rs?
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
appropnate 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 o 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-b ndng waiver is Invoked, can the Agency
later bring in action to re ov 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. IlighUght 3 provides sample language for various
sections of the ROD. This language is based on the
hypothetical site circumstances presented in 1 Igh -
light 2 of this fact sheet and a hypothetical State
law. For additional language, see Guidance on Pre-
paring Superfund Decision Documents (the ROD
Guldance), EPA/540/G-89, )07, July 1989, page 6-5.
Iflgbllgbt & SAMPLE ROD lANGUAGE
Sample language for the Sf ntoiy Determina-
Uans Section (of the Declaration):
The selected remedy Is protective of human
health ami the environment, complies with or
meets the requirements for a waiver of Federal
and State requirements that are legally
appb ble or relevant and appiupriate to the
remedial action, and Is cost-cffecth This
remedy tflbe e permanent solutions....
Sample language for the Deserlptlon of Alterna.
Uvea Section (of the Decision Swnmary)
The first remedial alternative, which Involves
t removal and off-site disposal of
o ninnted stream sediments, complies with
the State water-quality standard at Reg See.
Xi because It ensures that sliesm water
cnut ininant levels will not exree’ .001 ppm.
flte State water-quality standard Is applicable
to this remedial alternative became the
standard requires maintenance of all In-State
streams, reservoirs, and fakes at health-based
levels as established In State regulations at
Scc X .1Oa
The second tedial a1t rnath e, which
Involves partial cappIng and surisce-water
divm lon, justifies a waiver of the State water-
quality standard found at Reg. Sec X.100,
based on the Fund .balandflg waivet found in
(IRCLA Section 121(dX4XF) and NC?
section 300.430(f)(1) (il)(C)(6). Aflaiithig the
Stale water-quality standard for this. operable
unit (as contemplated by the flr*t iuedlal
a1*e nadve) would cost more than Si billion .
EPA has detetmined that this site expenditure
would not provide a balanee between IM need
for protectloa of hnmnn henith and the
environment at thiesite, and the avallsbthtyof
F UedmoniCa to respond to othec sites that
yprescnt * threat to human health and the
envitunment.
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IUgbllght SAMPIZ ROD lANGUAGE
(‘.UL UL UW)
Sample language r the Su _ ry of Comparative
An tvck ofAltf,ej (of the Decision
EPA has det rmh 4 thateacb remedial
alternative Is ptotectiveofhuimntbeàlth and
the environt, and mplies with (or
justifies a wa1 of) applimble or relevant afld
appropriate requlremen ...
Sample language for the Statutory Determlnatlos
Section (of the De lon Siii ry):
The selected remedy complies with or waivà..
all Federal and State ARARS. The Stale
water-quality standard .wsived x face .
water d nnp at this sue bec use a*t24nTn It of
this requirement would t mare than SI
billion, which would not provide a balance
between the need for protection of hmn n
health and the cnv1ronni i t at this she and the
availability of Fund monl to respond to other
sites that may present a threat to hn ’n k fth
and the environment. (See. C CIA Section
l2I(d)(4)(F) and the NC?, 40 QR section
300.430(f)(1)(ii)(C)(6)..)
.. S * 5
NOTICE The policies set out In this fact sheet are
ended soieiy as guidance. They are not Int w ed nor
n they be relied upon, to acate 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 gnld nce, based
on an analysis of site-specific circumstances. The Agency
also reserves the right to change this guidance at any time
without public notice.
SS S S S
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