&EPA
                             United States
                             Environmental Protection
                             Agency
                         Office of
                         Solid Waste and
                         Emergency Response
Publication 9234.2-07/FS

            April 1990
CERCLA Compliance With Other Laws Manual
Summary of Part  II
CAA, TSCA,  AND  Other Statutes
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 Reauthorization Act (SARA), requires
  that remedial actions must at least attain Federal and more stringent State applicable and relevant and appropriate requirements
  (ARARs) upon completion of the remedial action. The 1990 National Contingency Plan (NCP) requires compliance with
  ARARs during remedial actions as well as at completion, and compels attainment of ARARs during removal actions whenever
  practicable. See NCP, 55 Fed. Reg. 8666, 8843 (March 8, 1990) (to be codified at 40 CFR section 300.414(1)), and 55 Fed.
      , 8666, 8852 (March 8, 1990) (to be codified at 40 CFR 300.435(b)(2)).
     To implement the ARARs provision, EPA has developed guidance, CERCLA Compliance With Other Laws Manual: Parts
  I and II (Publications 9234.1-01 and 9234.1-02). EPA is preparing a series of short fact sheets that summarize these guidance
  documents. This Fact Sheet focuses on CERCLA compliance with the Clean Air Act, the Toxic Substances Control Act, and
  the Federal Insecticide, Fungicide, and Rodenticide Act (Chapters 2 and 3 of Part II). In addition, it discusses other statutes
  that set standards for radioactive wastes, mining wastes, and other resource protection statutes that are potential ARARs for
  CERCLA actions.
                                   I.  STANDARDS FOR AIR
  A. CLEAN AIR ACT (CAA)
     The objective of the CAA is to protect and enhance the
  quality of the nation's air resources. The CAA achieves this
  objective by regulating emissions into the air through National
  Ambient Air Quality Standards (NAAQS), National Emission
  Standards for Hazardous Air Pollutants (NESHAPs), and
  New  Source  Performance  Standards  (NSPS).  These
  potential ARARs may apply to both stationary and mobile
  sources of emissions, and they may be implemented through
  combined Federal, State, and local programs. See Highlight
  1 for CERCLA activities that may trigger CAA ARARs.

     1. National  Ambient  Air  Quality   Standards
        (NAAQS)

     Under CAA section 109, EPA promulgates NAAQS.
  NAAQS are national limitations on ambient concentrations
  intended to protect health and welfare. There are primary
  and some secondary NAAQS  for six pollutants. (See 40
  CFR Part 50.) These pollutants (called "criteria pollutants")
  are: (1) carbon monoxide; (2) lead; (3) nitrogen dioxide; (4)
  particulate matter equal to or less than 10 microns particle
  size (PM10); (5) ozone, which results from the emissions of
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                       volatile organic compounds (VOCs); and (6) sulfur oxides.
                       Primary  standards are  set at health-based levels, while
                       secondary standards are designed to protect public welfare
                       and wildlife.
                              Highlight 1: CERCLA ACTIVITIES
                          POTENTIALLY SUBJECT TO CAA ARARS

                           Air stripping (used to volatilize contamination both,
                           in ground water and in soil);

                           Thermal destruction.(e.g., incineration);

                           Handling of contaminated soil, including loading,
                           unloading, compacting material in a landfill, and
                           digging;

                           Gaseous waste treatment (e.g., flaring used when
                           capping and venting a site, usually at abandoned or
                           inactive landfills); and

                           Biodegradation (especially when aeration of liquids
                           is involved).

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    NAAQS are not applicable to source-specific emissions
limitations, nor  enforceable in  and of themselves. States
translate  them  into  source-specific emission limitations
through State  Implementation  Plans  (SIPs).  The  CAA
requires each State to adopt and submit to EPA for approval
a SIP for implementing and enforcing NAAQS. Upon EPA
approval, the SIP becomes both Federally enforceable and
a potential Federal ARAR at a site. The SIP may contain
State, regional,  or local  air program requirements, or the
State may adopt more stringent standards than those found
in the SIP. Both State requirements approved through the
SIP process and more stringent State standards issued under
State law are potential ARARs for Superfund sites.

    In  addition to requirements established in  SIPs  for
implementing NAAQS, there are regulatory requirements for
"major sources"  of emissions.  The  requirements  vary
depending upon whether the area in which the source is
located is an attainment or a non-attainment area. Attainment
areas are those regions of the country that are designated as
being in compliance with the NAAQS for criteria pollutants
(see 40 CFR Part 81). Nonattainment areas are those parts
of the country where compliance has not been attained for
one or several criteria pollutants. Therefore, a certain area
may be designated as an attainment area  for one, and a
nonattainment area for another, of the criteria pollutants.
RPMs  should contact EPA Regional Air Branch Chiefs or
their Air/Superfund  Coordinators for additional questions
concerning attainment and non-attainment areas.

    In  general, emissions from CERCLA activities are not
expected to qualify as "major;" therefore, these requirements
are not likely to be applicable to CERCLA response actions.
Highlight 2 summarizes these requirements for major sources
in attainment and non-attainment areas.

    For a  site where  a  ground-water  pump-and-treat
technique or soil vapor extraction is used together with air
strippers in an ozone non-attainment area, the June 15,1989
memorandum entitled,  "Control of Air Emissions from
Superfund Air Strippers  at Superfund Groundwater Sites"
(OSWER  Directive 9355.0-28),  Is an important  to-
be-considered (TBC). The guidance indicates that sources
that need controls are those with actual emissions rates in
excess of 3 Ibs/hr, or 15 Ibs/day, or a calculated rate of 10
tons/year (T/yr) of total VOCs.

    2.  National Emissions Standards for Hazardous
       Air Pollutants (NESHAPs)

    Hazardous air pollutants are those pollutants for which
no ambient air quality standard exists, but which  cause, or
contribute to, air pollution that may reasonably be anticipated
to   result   in   an   increase   in  mortality   or   an
   Highlight 2:  REQUIREMENTS FOR MAJOR
        SOURCES IN ATTAINMENT AND
           NON-ATTAINMENT AREAS

 Attainment Areas and Areas Defined as
 Unclassified.

 •   Requirement: Prevention of Significant
     Deterioration (PSD) regulations, found at 40 CFR
     Part 52, require that affected sources meet an
     emission limit that reflects the installation and
     operation of Best Available Control Technology
     (BACT).  PSD permit regulations also require that
     the source meet specified air quality deterioration
     increments.

 •   Applicable To: New stationary major source of
     emissions and major modification to existing source
     in an attainment or unclassified area.

 •   Definition of Major Source: Either emits 250 or
     more T/yr of any regulated pollutant, or the site has
     a facility such as an incinerator or chemical
     processing plant that emits 100 or more T/yr.

 Non-attainment Areas

 •   Requirement: Must meet Lowest Achievable
     Emission Rate (LAER). Additionally, the SIP must
     contain a growth allowance or the operator of the
     source must provide an emissions offset.

 •   Applicable To: Anything that falls within the
     definition of a major source for non-attainment
     areas (not source-specific).

 •   Definition of Major Source: Emissions of 100 or
     more T/yr of the pollutant designated as non-
     attainment in that area.
increase in serious irreversible illness. The CAA requires
EPA to list periodically the hazardous air pollutants it intends
to regulate, and to establish emission standards (NESHAPs)
for them. NESHAPs are listed at 40 CFR Part 61.

NESHAPs  have been promulgated for emissions  of
particular air pollutants from specific sources. NESHAPs are
not  generally  applicable  to  Superfund response actions
because CERCLA sites do not usually contain one of the
specific   source   categories  regulated.   More-
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over, NESHAPs are generally not relevant and appropriate
because the standards are intended for the specific sources
regulated and their use will generally not be well-suited for all
sources of that pollutant. As a possible  exception, the
NESHAPs for asbestos and radionuclides may be ARARs
for a CERCLA site (see Highlight 3).

    3.  New Source Performance Standards (NSPS)

    The CAA  requires EPA to promulgate NSPS for new
stationary sources that emit particular pollutants that cause
or significantly contribute to air pollution. Since NSPS are
source-specific  requirements, they  are  not applicable to
Superfund response  actions  unless they include a "new
source  subject to NSPS,  such as  a municipal  waste
combustor. If the response action does not include a source
subject to NSPS, NSPS may be relevant and appropriate if
the pollutant emitted and the technology employed at the site
are sufficiently similar to the pollutant and source category
regulated by an NSPS, so that their use is well-suited to site
circumstances. For example, if cleanup involves incineration
at a municipal landfill, the NSPS for particulate emissions
from incinerators with a charging rate of 50 T/day, which are
used for burning solid waste containing more than 50 percent
municipal-type waste, may be a potential ARAR.

B.    RESOURCE   CONSERVATION    AND
      RECOVERY ACT  (RCRA) AIR EMISSION
      REGULATIONS

    There are RCRA regulations covering hazardous waste
air emissions from incinerators, land disposal facilities, and
other treatment, storage, and disposal facilities (TSDFs). The
potential ARARs for incinerators consist of standards for
destruction  and  removal  efficiency,  for products  of
incomplete combustion, metals, and emissions of hydrogen
chloride, and for  particulates.  Potential ARARs  for land
disposal facilities  are  limited to  the  requirement  that
particulate matter from such facilities be controlled by covers
or other means. Potential ARARs for TSDFs include air
emission standards for process vents and equipment leaks,
and air emission standards for container  storage,  tanks,
surface impoundments, and waste fixation units (see 40 CFR
Parts 264 and 269).

C.   STATE AIR TOXIC PROGRAMS

    Several State air pollution control agencies have adopted
programs  to   regulate   "toxic  air  pollutants."  These
requirements are likely to be the most significant air emission
ARARs at Superfund sites. Different States have regulations
for different pollutants and have adopted differing levels of
safety.  RPMs should coordinate with the appropriate State
agency and their own Regional Air/Superfund Coordinator to
determine what potential ARARs (if any) the pertinent State
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Air Toxic Program contains.
    Highlight 3. POTENTIAL NESHAP ARARs

 POTENTIAL ASBESTOS NESHAP ARARs

 •   40 CPR section 61.147 establishes procedures for
     asbestos emission control during demolition of
     buildings or equipment containing friable asbestos
     material. This regulation may be an ARAR for a
     response action that includes demolishing a building
     containing asbestos.

 •   40 CFR section 61.153 sets standards for inactive
     waste disposal sites from asbestos mills and
     manufacturing and fabricating operations;  140 CFR
     section 61.156 establishes standards  for active
     waste disposal sites; and 40 CFR section 61.152
     establishes standards for disposal of asbestos
     containing waste from demolition and renovation
     operations. These standards may be  ARARs for
     response actions involving asbestos disposal.

 POTENTIAL RADIONUCLIDE NESHAP
 ARARs

 •   40 CFR Part 61, Subparts H and I are applicable to
     airborne emissions of radionuclides (excluding
     radon-220 and 222 for Subpart H and radon-222 for
     Subpart I) from incinerators, land disposal  facilities,
     and other TSDFs for radioactive materials, during
     the cleanup of sites at Department of Energy
     (DOE)  facilities, Nuclear Regulatory Commission-
     licensed facilities, and non-DOE Federal facilities,
     such as Department of Defense facilities.

 •   40 CFR Part 61, Subpart T applies to radon-222
     emissions from the disposal of uranium mill tailings;
     Subpart W applies to uranium  mill tailings piles
     during operation, Subpart R applies to radon-222
     emissions from phosphogypsum stacks (piles) after
     disposal; and Subpart Q  applies to radon-222
     emissions from storage and disposal facilities for
     radium-containing material that are owned or
     operated by DOE: (see NCP,  54 Fed. Res. 51654
     (December. 15, 1989) for Subparts T, Q, and R).
     These subparts may be ARARs if the response
     action occurs at an underground uranium mine or at
     a uranium mill site. They may be potential ARARs
     for other CERCLA sites (especially mining sites).

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                     II.   STANDARDS FOR TOXICS AND PESTICIDES
A.  TOXIC SUBSTANCES CONTROL ACT TSCA)

    TSCA   authorizes  EPA  to   establish   testing,
premanufacture notification,  control,  and recordkeeping
regulations pertaining to toxic chemical substances. Those
requirements  that  regulate  control  of  polychlorinated
biphenyls (PCBs), fully halogenated chlorofluoroalkanes, and
asbestos  are potential  ARARs  for CERCLA  response
actions.  In addition, EPA  generates risk  numbers  for
chemicals to be studied under TSCA. These risk numbers for
particular chemicals may constitute guidelines that are TBC,
and may be consulted when developing a protective remedy.

    1.  PCB Disposal Requirements

    PCB  disposal  requirements under TSCA  will be
applicable if disposal of material contaminated with PCBs at
concentrations of 50 ppm or greater occurred after February
17,  1978. (These  requirements may be  relevant and
appropriate if disposal occurred before that date.)  TSCA
requirements for disposal of PCB-contaminated wastes vary
according to the physical state of the PCBs (liquid, nonliquid,
or articles),  and PCB  concentration.  See the CERCLA
Compliance with Other Laws Manual Part II, Chapter 3 (pp.
3-2 through  3-5) for a complete list  of potential  TSCA
ARARs for PCBs. The Office of Emergency and Remedial
Response is finalizing a Guidance on Remedial Actions for
Superfund  Sites  with PCB  Contamination  (OSWER
Directive 9355.4-01) that discusses the circumstances under
which the PCB  antidilution  requirements may  apply at
CERCLA sites.

    2.  PCB Storage Requirements

    The  substantive  portions  of  the  PCB   storage
requirements found  at 40  CFR section 761.65 may be
ARARs for the storage of PCBs prior to disposal. Other
potential ARARs include  requirements for  PCB storage
facilities and containers.

    3.  PCB Spill Cleanup Policy

    EPA has published a nationwide TSCA PCB  spill
cleanup  policy in  40  CFR Part  61, Subpart G.  The
action-specific  and cleanup guidelines contained within this
policy are  potential TBCs,  especially with respect to the
cleanup  of PCB-contaminated soils. The spill policy is
effective for PCB spills occurring after May 4, 1987.

B.  RCRA  LAND  DISPOSAL RESTRICTIONS
    (LDRs) FOR PCBs

    The land disposal of liquid RCRA hazardous wastes that
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contain PCBs at concentrations equal to or greater than 50
ppm,  are regulated by RCRA under the California List
Wastes LDRs, promulgated on July 8,1987 (see Highlight 4).
RCRA LDRs for PCBs may be ARARs when the response
action involves excavating, dredging, or other measures that
move PCB-contaminated materials into a land-based unit.
    Highlight 4:  RCRA LDR REQUIREMENTS
                    FOR PCBs

     Liquid RCRA hazardous wastes containing PCBs at
     concentrations between 50 and 499 ppm must be
     incinerated (or treated by an equivalent method) in a
     facility that meets the requirements of 40 CFR
     section 761.70, or burned in a high efficiency boiler
     meeting the requirements of 40 CFR section 761.60.
     See 40 CFR section 268.42(a)(l).

     Liquid RCRA hazardous wastes containing PCBs at
     concentrations equal to or greater than 500 ppm
     must be incinerated consistent with the, technical
     requirements of 40 CFR section 761.70 or be
     treated by an equivalent method. See, 40 CFR
     section 268.42(a)(l).

     Nonliquid and liquid RCRA hazardous wastes
     containing PCBs and halogenated organic
     compounds (HOCs) must be incinerated consistent
     with the requirements of Part 264, Subpart O, or
     Part 265, Subpart O, if the total concentration, of
     HOCs is equal to or greater than 1,000 mg/kg. In
     the proposed third thirds rule under RCRA, EPA is
     proposing to revoke the California List provision
     allowing burning of HOCs in furnaces and boilers
     (see 54 Fed. Reg. 48499. (November 22,  1989)).
     This rule will not, affect the PCB regulations
     mentioned above.
C.  FEDERAL INSECTICIDE, FUNGICIDE, AND
    RODENTICIDE ACT (FIFRA)

    FIFRA authorizes EPA to regulate the sale, distribution,
and use of all pesticide products in the United States through
product licensing or registration. Under FIFRA, use of a
product in a manner inconsistent with its labeling is a violation
of the Act. However, compliance with FIFRA by following
labeling directions may not be required at a Superfund site
since the  pesticide may be a RCRA waste at that point.

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TBCs under FIFRA include nonbinding "procedures not
recommended" for disposal of pesticides (see 40  CFR
section 165.7)  and nonbinding "recommended procedures"
for disposal of pesticides (see 40  CFR section 165.8). In
addition to  disposal TBCs, there are tolerance levels for
pesticides and  pesticide residuals in or on raw agricultural
commodities. These tolerance levels  are potential ARARs
where sites have  agricultural commodities  or wildlife for
consumption.
    Discharges  of pesticides to surface waters through a
point source are subject  to effluent limitations as toxic
pollutants under the Clean Water Act (CWA). The CWA
requirements  are, therefore, potential ARARs for  such
discharges. In  addition, discarded  or  off-specification
pesticides may be regulated under RCRA Subtitle C as listed
or characteristic hazardous wastes. Thus, RCRA Subtitle C
requirements are potential ARARs for such pesticides.
                      III.  STANDARDS FOR RADIOACTIVE WASTES
    There are few standards applicable to the cleanup of
radioactively contaminated sites and buildings, except for
standards for mill tailings under the Uranium Mill Tailings
Radiation  Control  Act  and  EPA's  standards  (when
promulgated) for residual radioactivity for cleanup of a site
where radionuclides have been used. Other standards for
radioactive waste may be relevant and appropriate when
determined to be well-suited for cleanup of a specific site.
When reviewing potential   ARARs, it is  important to
determine under which Agency's regulatory jurisdiction a site
falls, in order to help determine applicability.

A.  POTENTIAL EPA ARARs FOR RADIOACTIVE
    WASTE

    Under the CAA. EPA  has promulgated radionuclide
NESHAPs for five different source categories. Subparts H
and I, which address DOE, Nuclear Regulatory Commission
(NRC)-licensed,  and non-DOE Federal facilities, are most
likely to be potential ARARs for CERCLA response actions
(see 40 CFR Part 61). Under the Safe Drinking Water Act
EPA has promulgated maximum contaminant levels (MCLs)
for radionuclides in two forms: (1) radioactivity concentration
limits for certain alpha-emitting radionuclides; and (2) an
annual  dose   limit  for   the   ingestion  of  certain
beta/gamma-emitting radionuclides (see 40 CFR Part 141).
Since the radionuclides MCLGs equal zero, the MCLs are
potential  ARARs for Superfund sites. Under the Atomic
Energy Act, there are environmental protection standards
that set limits on radiation doses received by members of the
general public from operations within the uranium fuel cycle
of nuclear generators.  While these  standards  are  not
applicable because they  apply to normal operations  and
planned discharges, they  may be relevant and appropriate to
releases of radionuclides and radiation  during cleanup of
radioactively contaminated  sites (see 40 CFR Part 190).
Under the Uranium Mill Tailings Radiation Control Act EPA
has set standards for mill tailings at two types of sites: (1)
certain inactive uranium processing sites "designated" for
remedial action under section 102 of the Uranium Mill Act;
and (2) commercial uranium and thorium processing sites
licensed by the NRC or States (see 40 CFR Part 192). EPA
has also established surface-water discharge standards for
radionuclides. These standards are applicable to discharges
from certain kinds of mines and mills; they may be relevant
and appropriate to response actions involving discharges of
radionuclides to surface waters from other types of sites (see
40 CFR Part 440).

B.  POTENTIAL NRC ARARs FOR RADIOACTIVE
    WASTE

    Standards found in 10 CFR Part 20 may be applicable to
CERCLA actions at NRC-licensed facilities; they may be
relevant and appropriate to CERCLA actions at radioactively
contaminated sites not licensed by the NRC. These standards
establish permissible levels of radiation in unrestricted areas,
concentration limits for discharges to unrestricted areas, and
waste disposal requirements.

    Standards  found in 10 CFR Part  61  establish criteria
applicable to existing licensed low-level waste disposal sites.
These criteria  are not applicable to previously closed sites
such as existing CERCLA sites.  However, the technical
requirements may be relevant and appropriate to CERCIA
sites with low-level radioactive waste, if the waste will be
permanently left on site.

    Standards found in 10 CFR Parts 30, 40, and 70 contain
licensing requirements  for the  possession  and  use  of
byproduct, source, and special nuclear material, respectively.
Any substantive requirements found within these standards
may be applicable to response actions at sites licensed under
these NRC  regulations.  They  may  be relevant and
appropriate  to  other,  non-licensed  sites  that  contain
radioactive contamination.

C.  POTENTIAL DOE ARARs FOR RADIOACTIVE
    WASTE

    Most of DOE's operations are exempt from NRC's
licensing  and   regulatory   requirements.   DOE's
requirements for radiation protection and radioactive  waste
management  are found  in internal DOE orders. These
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orders have the same force for DOE facilities as does a
regulation; however, because they are not promulgated
requirements,  they  are  not  potential  ARARs.  The
requirements in the  orders  are  applicable only to  DOE
installations  and do not apply to sites outside  of DOE's
jurisdiction.

    Because  DOE's   orders    typically   incorporate
requirements promulgated by other Federal agencies, they
should be consistent with existing regulations. To the extent
that they are more stringent or cover issues not addressed by
existing ARARs, they may be TBCs at a site. The most
important DOE orders concerning radiation protection and
radioactive waste management are DOE 5400.5, "Radiation
Protection of the Public and the Environment," and DOE
5820.2A "Radioactive Waste Management."
                           IV. STANDARDS FOR MINING WASTES
    Potential ARARs  under the Uranium Mill Tailings
Radiation Control Act are discussed in the preceding section.
Other potential ARARs for mining wastes are found in the
Surface Mining Control and Reclamation Act and in the
Resource Conservation and Recovery Act.

A.   SURFACE MINING CONTROL AND
     RECLAMATION ACT (SMCRA)

    Requirements under SMCRA may be  applicable to
response actions associated with abandoned coal mines (see
30 CFR Part 816). Highlight 5 illustrates when requirements
in 30 CFR Part 816 may be relevant  and appropriate for
response actions at other types of mining sites.
         Highlight 5. POTENTIAL MINING
                  WASTE ARARS

     Where a site contains geologic materials containing
     sulfides, there may be a release or threat of release
     of acid. Such a release could mobilize a related
     release of acid-soluble metals that are hazardous
     substances, thus adversely affecting aquatic and
     other resources. 30 CFR part 816.4 requirements
     that boreholes and shafts be seated to prevent
     drainage from or into ground water may be
     Relevant and appropriate to such a site.

     Where a site is subject to erosion, it is vulnerable to
     releases  of wastes that are contaminated by heavy
     metals. Revegetation requirements found in 30 CFR
     section 816.111 may be  relevant and appropriate to
     protect a cap at a CERCLA raining site from
     erosion and to prevent further releases of arsenic or
     heavy metals.
B.  RCRASTANDARDS

    RCRA  section  300 l(b)  (known  as  the   Bevill
Amendment) temporarily prohibited EPA from regulating, as
hazardous waste, the solid  waste from the extraction and
processing of ores and minerals, pending further study and
regulation by the Agency. Therefore, Subtitle C requirements
were not applicable to mining wastes, nor to soil and debris
wastes  contaminated with  mining  wastes  (since  the
contamination does not derive from a RCRA hazardous
waste) until EPA made a regulatory determination to remove
a certain mining waste or waste stream from the  Bevill
Amendment exclusion. The Bevill Amendment exempted
these wastes from Subtitle C requirements even if a waste
would otherwise be considered a characteristic hazardous
waste. However, the mining wastes may come within the
CERCLA definition of hazardous  substances, even if they do
not contain RCRA hazardous wastes.

    EPA has retained 20  mineral  processing wastes as
"special wastes" (i.e., high volume/low  toxicity wastes)
under the Bevill Amendment exclusion, which are therefore
exempt from Subtitle C requirements until a final regulatory
determination is made of their status in January, 1991 (see 54
Fed. Res. 36592 (September 1,1989) and 55 Fed. Res. 2322
(January 23, 1990)). All of the mineral processing wastes
that were permanently removed  by EPA from the  Bevill
Amendment exclusion (i.e., any mineral processing waste
other than the abovereferenced 20) are subject to RCRA
Subtitle C regulation if they  are solid wastes and exhibit one
or more of the characteristics of hazardous waste,  or are
otherwise listed as hazardous wastes  (see 55 Fed. Reg. 2322,
2323 (January 23, 1990.)) EPA has listed the following six
smelting wastes  as RCRA hazardous wastes: K064,  K065,
K066, K088, K090 and K091. Therefore, RCRA Subtitle C
requirements are potential ARARs for sites containing these
wastes (see 53 Fed. Res. 35412 (September 13, 1988)).
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    Whether RCRA Subtitle C requirements are relevant and
appropriate for mineral processing wastes that are within the
Bevill Amendment  exclusion should be  determined on a
site-specific basis. However, RCRA Subtitle C requirements
are not expected to be relevant and appropriate for most of
the exempted wastes because many of the same factors that
justified an exemption are used to determine relevance and
appropriateness (see NCP, 55 Fed. Reg. 8666,8763 (March
8, 1990)).
    Mining wastes that are not currently regulated under
Subtitle C may be subject to Subtitle D requirements. Subtitle
D provides performance standards used by States to set
standards   acceptable  for  solid  waste  facilities  and
management practices. The Agency is developing regulations
under Subtitle D specifically for those mining wastes that are
not to be regulated as hazardous waste. When promulgated,
these regulations may be ARARs for sites where those
mining wastes are present.
                     V.   OTHER RESOURCE PROTECTION STATUTES
    The resource protection laws discussed in this section
contain  some substantive  requirements  which  may be
ARARs,  but the  majority  of their requirements  are
administrative,   such  as  consultation   and  reporting
requirements. Unlike off-site CERCLA response actions,
on-site CERCLA investigative and response actions are not
required to meet administrative requirements (see NCP, 55
Fed. Res. 8666, 8756 (March 8, 1990)). However, the lead
agency  should  consider consulting with relevant  Federal,
State, and local agencies to take advantage of their expertise,
when an issue arises that is under their jurisdiction (see NCP,
55 Fed.  Res. 8666, 8757 (March 8, 1990)).  Consultation is
most advantageous when initiated early in the process, such
as during the preliminary assessment for site investigation.

A.  NATIONAL HISTORIC PRESERVATION ACT
    (NHPA)

    Pursuant to sections 106 and 110(f) of NHPA, the lead
agency  is required  to take into account  the effects of
CERCLA response actions  on  any historic properties
included on, or eligible for inclusion on the National Register
of Historic Places.  The National  Register lists  historic
properties (known as "cultural resources"), which consist of
districts, sites, buildings, structures,  and objects that are
significant in  American history  or  culture  for  their
architectural, archeological, engineering, or other  aspects.
For instance, the substantive requirement to avoid adverse
effects  on cultural resources, found, in 36 CFR section
800.5(e), is a potential ARAR.

    To  comply  with potential NHPA ARARs,  the lead
agency  should  initially determine  whether there  are  any
possible historic properties located on or near the site, or
within or near  the area under  study in the  remedial
investigation. For  example,  many CERCLA sites  could
contain  remains  of archeological significance,  such as
American Indian artifacts. If such a possibility seems likely,
the lead agency  should first contact the Department of the
Interior (DOI), which maintains the National Register. Single
copies of the National Register are available from: National
Register, U.S. Department of the Interior, Washington, DC
20240. Annual updates of new National Register listings are
published in the Federal Register each February or March.
The  Federal  Register  will  also list properties  already
determined by the Secretary of Interior to be eligible for the
National Register. Finally, information on National Register
listings may also  be obtained from the  State  Historic
Preservation Officers (SHPOs), who are appointed by their
respective governors.

    If the site  or  any  portion  of the  site has not been
determined by the  DOI to be eligible for inclusion on the
National Register,  the  lead  agency should make such a
determination.  The regulations  at 36 CFR  section 60.4
establish the criteria used to  determine whether properties
qualify for inclusion on the National Register. These criteria
are applied to properties through a "cultural resource survey"
(CRS). Most of the information needed to complete the CRS
will be developed during the RI/FS. When cultural resources
are identified, the lead agency evaluates and considers any
effects upon cultural resources as part of its review of
alternatives during the RI/FS, in  order to avoid or minimize
adverse effects  on these  resources. See  the CERCLA
Compliance with Other Laws  Manual Part II, Chapter 4 (pp.
4-6 through 4-10) for further detailed discussion.  Consultation
procedures between EPA, the Advisory Council, and SHPOs
are being formalized in a  Programmatic Memorandum of
Agreement (in draft at the time of this printing).

B.  ENDANGERED SPECIES ACT (ESA)

    Section 7(a) of the ESA requires Federal agencies to
consult with DOI and the National Oceanic and Atmospheric
Administration (NOAA), as appropriate, to ensure that their
actions are not likely to jeopardize the continued existence of
endangered or threatened species, or adversely modify or
destroy their critical habitats.  Actions that might jeopardize
species include direct and indirect effects, as well as the
cumulative effects of other actions, whether interdependent,
interrelated, or located on another nearby hazardous waste
cleanup site.
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    Substantive  ARARs under the ESA consist of the
requirements that  the lead agency determine whether  a
threatened or endangered species, or its critical habitat, will
be  affected  by a proposed  response   action.  This is
accomplished through the performance of a biological
assessment.  If  such a  determination  is  made that  a
threatened species or habitat will be affected by the planned
action, the lead agency must avoid  the action or take
appropriate  mitigation  measures.  If  at any  point the
conclusion  is reached that endangered  species are not
present or will not be affected, no further  analysis or action
would be required in order to comply with ESA.

    To determine whether the project is likely to jeopardize
the continue  existence of any endangered or threatened
species or result in the destruction or adverse modification of
a critical habitat, the lead agency should consult  with the
U.S. Fish and Wildlife  Service (FWS) for terrestrial and
freshwater species and NOAA for marine species. EPA
(Office of Solid Waste and Emergency Response), FWS, and
NOAA are planning to formalize consultation procedures for
both removal actions and on-site remedial  actions in  a
Memorandum of Understanding (in draft  at the time of this
printing).

C.  WILD AND SCENIC RIVERS ACT (WSRA)

    The WSRA establishes requirements that apply to water
resource projects affecting wild, scenic, or recreational rivers
within the National Wild and Scenic Rivers System, as well
as rivers designated on the National Rivers Inventory to be
studied for inclusion in the National System. For purposes of
the Act, a project is  a dam,  water conduit,  reservoir,
powerhouse, transmission line, discharge to waters, or other
water resources project that would affect the free-flowing
characteristics of the water. If a response action could affect
the free-flowing  characteristics  of  such  a  river,  the
requirement  that such  action should minimize adverse
impacts may  be a potential ARAR. Response alternatives
should be developed in consultation with DOI (National Park
Service) and the Department of Agriculture.

D.  FISH AND WILDLIFE COORDINATION ACT
    (FWCA)

    The FWCA protects fish and wildlife through the review
of actions that control or structurally modify a natural stream
or body of water. A potential ARAR under the FWCA is the
requirement to consider the effect that such water-related
projects would have upon fish and wildlife, and take action to
prevent  loss  or  damage  to  these  resources.  While
consultation  with  FWS  or  NOAA  is required  under
CERCLA only if alteration of the water resource would
occur from off-site activities (e.g., a change in the rate of
flow), consultation is strongly recommended for on-site

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activities as well.

E.  COASTAL ZONE MANAGEMENT ACT (CZMA)

    The CZMA regulates actions by Federal agencies that
directly  affect the coastal zone. The Act requires Federal
agencies to conduct or support their activities in a manner
consistent with approved State  coastal zone management
programs (CZMPs). The requirement to determine whether
a response action will have any  effect (whether adverse or
not) on the coastal zone of a State with an approved CZMP
is a potential ARAR. Specifically, the lead agency is required
to determine whether the activity will be consistent, to the
maximum extent practicable, with the  State's CZMP. The
lead agency should notify the State of its  determination.
Copies of a State's CZMP may be obtained from the State's
coastal  commission.  All  coastal  States have approved
CZMPs except for Georgia, Texas, Ohio, Indiana, Illinois,
and Minnesota. For off-site actions that require a Federal
permit,  the State must certify that the  proposed activity
complies with its coastal zone management plan (see CZMA
section 307(c)(3)).

F.  WILDERNESS ACT (WA)

    The WA administers wilderness areas to preserve their
character and to keep them unimpaired for future use as
wilderness. To comply with  ARARs  under the WA, the
RPM must first identify whether the response action would
affect designated wilderness areas (see 16 USC section
1132). The Regional NEPA Compliance Staff should be able
to identify these areas. If a potential impact is anticipated, the
RPM should determine whether any prohibitions apply to the
proposed response  action. To  take   advantage  of  their
expertise, the  RPM  should consult with the NEPA
Compliance Staff and the administering agency to make this
determination. The RPM should then determine  whether an
exemption is necessary under the WA or CERCLA.

G.  NATIONAL ENVIRONMENTAL POLICY ACT
    (NEPA)

    Like the  NEPA regulations,  the  RI/FS and  remedy
selection process under CERCLA provide for consideration
of the potential impacts of CERCLA response actions on the
environment, and provide for significant public participation.
EPA response actions  are not required to follow  procedures
in addition to those in the NCP in order to comply with
NEPA.

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