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.* ------- 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. ------- 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. ------- 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 ------- |