&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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