EPA Publication
9347.3-15
Publication
(CERCLA)-005/1091
- ENVIRONMENTAL GUIDANCE
x>£xVx:x:x3x:x3xXXxx^^
Compendium of CERCLA
ARARs Fact Sheets and Directives
J ENVIRONMENTAL GUIDANCE
Compendium of CERCLA
ARARs Fact Sheets and Directives
Published jointly by:
us EPA u.s. DOE
Office oi Emergency and Remedai Response office of Environmental Guidance
OCTOBER 1991
Published jointly by:
U.S. EPA U.S. DOE
Office of Emergency and Remedial Response Office of Environmental Guidance
OCTOBER 1991
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United States Government
Department of Energy
memorandum
Environmental Protection Agency
DATE: October 18,1991
REPLY TO
ATTNOF: EH-231
SUBJECT:
Compendium of Applicable or Relevant and Appropriate
Requirements "Quick Reference Fact Sheets" and Directives
TO: Distribution
Through a collaborative effort, the Department of Energy (DOE) and the Environmental
Protection Agency (EPA) have prepared the attached compendium of EPA "Quick Reference
Fact Sheets" and directives on applicable or relevant and appropriate requirements (ARARs).
This compilation replaces the earlier "Catalog of CERCLA ARARs-Fact Sheets," which DOE
issued in July 1990.
The purpose of this compendium is to provide you with a current list of all ARAR "Quick
Reference Fact Sheets" and directives. These fact sheets and directives were developed by
EPA's Office of Solid Waste and Emergency Response. EPA prepared these fact sheets to
assist those involved in the conduct of response actions in complying with Section 121 (d),
"Degree of Cleanup," of CERCLA as amended by SARA and 40 CFR Part 300, Subpart E,
Section 300.400(g) "Identification of applicable or relevant and appropriate requirements" of
the NCP.
The Compendium of CERCLA ARARs consists of seven (7) chapters: Chapter I,
"Introduction," lists general fact sheets that provide introductory information on ARARs;
Chapter n, "Air," discusses air emissions from air strippers at CERCLA sites; Chapter HI,
"Indian Tribal ARARs," deals with Indian Tribal involvement in the CERCLA program;
Chapter IV, "Lead," discusses soil lead cleanup levels at CERCLA sites; Chapter V, "Risk
Assessment," discusses the risk associated with CERCLA cleanups; Chapter VI, "RCRA
ARARs," contains four sections that discuss a variety of RCRA ARARs such as general
guidance topics, land disposal restrictions, Superfund LDR guides, and toxicity characteristics;
and finally, Chapter VII, "Water," lists a variety of ARAR fact sheets and directives on water.
Also, EPA, DOE, and other Federal Agencies (Army, Navy, Department of Defense,
Department of the Interior, and NASA) are working together to develop the ARARs-Assist
system. ARARs-Assist is a computerized database system that will facilitate the identification
of potential Federal and State ARARs.
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Questions concerning the attached compendium, in particular, or the ARARs-Assist system,
should be directed to Jerry DiCerbo at DOE, (202) 586-5047 or Rhea Cohen at EPA,
(202) 260-2200.
Raymond F. Pelletier, Director
Office of Environmental Guidance
Department of Energy
/&w*
Henry L. longest, II, Director
Office of Emergency and Remedial Response
Environmental Protection Agency
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Introduction
Section 121 (d) of the Comprehensive Environmental Response Compensation
and Liability Act (CERCLA) as amended by the Superfund Amendments and
Reauthorization Act of 1986 (SARA), requires attainment of Federal and State
applicable and relevant and appropriate requirements (ARARs). Subpart E, Section
300.400(g) "Identification of applicable or relevant and appropriate requirements" of
the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) (55 CFR
8666, March 8, 1990) describes the process for attaining ARARs.
The purpose of this compendium is to provide you with a complete and current
source of "Quick Reference Fact Sheets" and Directives on applicable and relevant and
appropriate requirements (ARARs). These fact sheets, prepared by the Environmental
Protection Agency's (EPA) Office of Solid Waste and Emergency Response, provide
overviews of the ARARs for CERCLA cleanup actions.
The Department or Energy and the EPA prepared this compendium of EPA
"Quick Reference Fact Sheets" and Directives on ARARs. This compilation is provided
as general guidance for complying with the Federal requirements on ARARs.1
The Compendium of CERCLA ARARs consists of seven (7) chapters: Chapter I,
"Introduction," lists general fact sheets that provide introductory information on
ARARs; Chapter n, "Air," discusses air emissions from Superfund air strippers;
Chapter HI, "Indian Tribal ARARs," deals with Indian Tribal involvement in the
Superfund program; Chapter IV, "Lead," discusses soil lead cleanup levels at Superfund
sites; Chapter V, "Risk Assessment," discusses the risk associated with Superfund
cleanups; Chapter VI, "RCRA ARARs," contains four sections that discuss a variety of
RCRA ARARs such as general guidance topics, land disposal restrictions, Superfund
LDR guides, and toxicity characteristics; and finally, Chapter VII, "Water" contains a
variety of ARAR fact sheets and directives on Wastewater, Safe Drinking Water Act
and Groundwater.
1 This compendium supersedes the July 1990, "Catalog of CERCLA Applicable or Relevant and
Appropriate Requirements (ARARs) - Fact Sheets," DOE-EGD (CERCLA)-002/0790.
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TABLE OF CONTENTS
I. INTRODUCTION
A. Overview
1. CERCLA Compliance with Other Laws Manual,
Guide to Manual; 9234.2-02/FS, September 1989
2. CERCLA Compliance with Other Laws Manual, Overview of
ARARs Focus on ARARs Waivers; OSWER 9234.2-03/FS,
December 1989
3. ARARs Q'and A's: General Policy, RCRA, CWA, SDWA,
Post-ROD Information, and Contingent Waivers;
9234.2-01/FS-A, June 1991
4. CERCLA Compliance with Other Laws Manual, Summary of
Part II CAA, TSCA, and Other Statutes;
OSWER 9234.2-07/FS, April 1990
5. ARARs Q's and A's Fund Balancing Waiver; OSWER 9234.2-
13/FS, January 1991
6. A Guide to Selecting Superfund Remedial Actions; OSWER
9355.0-27/FS, April 1990
B. State and Local Requirements
7. CERCLA Compliance with Other Laws Manual, CERCLA
Compliance with State Requirements; OSWER 9234.2-05/FS,
December 1989
8. State and Local Involvement in the Superfund Program;
OSWER 9375.5-01/FS, Fall 1989
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II. AIR
9. Control of Air Emissions from Superfund Air Strippers
at Superfund Groundwater Sites; OSWER 9355.0-28,
June 15, 1989
III. INDIAN TRIBAL ARARs
10. Indian Tribal Involvement in the Superfund Program;
OSWER 9375.5-02/FS, Fall 1989
IV. LEAD
11. Interim Guidance on Establishing Soil Lead Cleanup
Levels at Superfund Sites; OSWER 9355.4-02,
September 7, 1989
V. RISK ASSESSMENT
12. Risk Assessment Guidance for Superfund: Volume I --
Human Health Evaluation Manual; OSWER 9285.7-
01/FS, April 1990
13. Role of the Baseline Risk Assessment in Superfund Remedy
Selection Decisions; OSWER 9355.0-30, April 22, 1991
VI. RCRA
A. Guidance Topics
14. Interim RCRA/CERCLA Guidance on Non-Contiguous
Sites and On-Site Management of Waste and Treatment
Residue; OSWER 9347.0-1, March 27, 1986
15. A Guide to Delisting of RCRA Wastes for Superfund
Remedial Responses; OSWER 9347.3-09/FS,
September 1990
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16. CERCLA Compliance with Other Laws Manual, RCRA
ARARs: Focus on Closure Requirements; OSWER
9234.2-04/FS, October 1989
17. Consideration of RCRA Requirements in Performing
CERCLA Responses at Mining Waste Sites; OSWER
9234.0-4; August 19, 1986
B. Land Disposal Restriction
18. Policy for Superfund Compliance with the RCRA Land
Disposal Restrictions; OSWER 9347.1-02, April 17, 1989
19. Regional ARARs and LDR [Land Disposal Restriction]
Contacts; OSWER 9234.1-03, March 1988
20. Land Disposal Restrictions as Relevant and Appropriate
Requirements for CERCLA Contaminated Soil and Debris;
OSWER 9347.2-01, June 5, 1989
21. Applicability of Land Disposal Restrictions to RCRA and
CERCLA Ground Water Treatment Reinjection, Superfund
Management Review: Recommendation No. 26; OSWER
9234.1-06, December 27, 1989
C. Superfund LDR Guides
22. Superfund Land Disposal Restriction Guide #1, Overview of
RCRA Land Disposal Restrictions (LDRs); OSWER 9347.3-
01/FS, July 1989
23. Superfund Land Disposal Restriction Guide #2, Complying
with California List Restrictions Under Land Disposal
Restrictions (LDRs); OSWER 9347.3-02/FS, July 1989
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24. Superfund Land Disposal Restriction Guide #3, Treatment
Standards and Minimum Technology Requirements Under
Land Disposal Restrictions (LDRs); OSWER 9347.3-03/FS,
July 1989
25. Superfund Land Disposal Restriction Guide #4, Complying
with the Hammer Restrictions Under Land Disposal
Restrictions (LDRs); OSWER 9347.3-04/FS, July 1989
26. Superfund Land Disposal Restriction Guide #5, Determining
When Land Disposal Restrictions (LDRs) are Applicable to
CERCLA Response Actions; OSWER 9347.3-05/FS, July
1989
27. Superfund Land Disposal Restriction Guide #6A (2nd
Edition), Obtaining a Soil and Debris Treatability Variance
for Remedial Actions; OSWER 9347.3-06/FS, September
1990
28. Superfund Land Disposal Restriction Guide #6B, Obtaining a
Soil and Debris Treatability Variance for Removal Actions;
OSWER 9347.3-06B/FS, September 1990
29. Superfund Land Disposal Restriction Guide #7, Determining
When Land Disposal Restrictions (LDRs) are Relevant and
Appropriate to CERCLA Response Actions; OSWER 9347.3-
08/FS, December 1989
30. Superfund Land Disposal Restriction Guide #8, Compliance
with Third Third Requirements Under Land Disposal
Restrictions; 9347.3-08/FS, October 1990
D. Toxicity Characteristics
31. ARARs Q's & A's Compliance with Toxicity Characteristics,
Part I; OSWER 9234.2-08/FS, May 1990
32. CERCLA Compliance with RCRA Toxicity Characteristics,
Part II; OSWER 9347.3-11/FS, October 1990
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VII. WATER
33. CERCLA Compliance with Other Laws Manual, CERCLA
Compliance with CWA and SDWA; OSWER 9234.2-06/FS,
February 1990
34. Discharge of Wastewater from CERCLA Sites into POTWs;
OSWER 9330.2-4, April 15, 1986
35. ARARs Q's and A's: Compliance with Federal Water
Quality Criteria; OSWER 9234.2-09/FS, June 1990
36. ARARs Q's and A's: State Ground-Water Antidegradation
Issues; OSWER 9234.2-11/FS, July 1990
37. ARARs Q's and A's Compliance with New SDWA National
Primary Drinking Water Regulations for Organic and
morganic Chemicals; OSWER 9234.2-15/FS, August 1991
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CERCLA Compliance with Other Laws Manual
Guide to Manual
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United State*
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Directive 9234.2-O2FS
September 1989
CERCLA Compliance with Other Laws Manual
GUIDE TO MANUAL
The 1986 Superfund Amendments and Reauthorization Act (SARA) adopts and expands a provision in the 1985
National Contingency Plan (NCP) that remedial actions must at least attain applicable or relevant and appropriate
requirements (ARARs). Section 121(d) of CERCLA as amended by SARA, requires attainment of Federal ARARs
and of State ARARs in State environmental or facility siting laws when the State requirements are promulgated, more
stringent than Federal laws, and identified by the State in a timely manner. Under EPA regulation and policy, removal
actions must comply with ARARs to the extent practicable.
To implement the ARARs provision, EPA has developed guidance, CERCLA Compliance with Other Laws Manual:
Parts I and II (OSWER Directives 9234.1-01 and 9234.1-02, respectively). EPA is preparing a series of short fact sheets
that summarize the guidance document (OSWER Directives 9234.2 series). This Fact Sheet provides a guide to the
compliance manual. The compliance manual is based on policies set forth in the proposed December 21, 1988 revisions
to the NCP. The final NCP may adopt policies different from those covered here and should, when promulgated, be
considered the authoritative source.
I. PURPOSE OF MANUAL
The CERCLA Compliance with Other Laws
Manual is intended to assist in the identification and
evaluation of ARARs for removal and remedial actions.
The manual provides guidance to Remedial Project
Managers, On-Scene Coordinators, State personnel, and
others responsible for or assisting in response actions
under sections 104, 106, and 122 of CERCLA. The
manual is also intended to assist in the selection of on-
site remedial actions that meet the ARARs of the
Resource Conservation and Recovery Act (RCRA), the
Clean Water Act (CWA), the Safe Drinking Water Act-
(SDWA), the Clean Air Act (CAA), the Toxic
Substances Control Act (TSCA), the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA), and other
Federal and State environmental laws, as required by
CERCLA section 121. In general, different ARARs for
a site and its remedial action will be identified at
various points in the remedy selection process.
II. DEFINITIONS OF ARARS
A requirement under other environmental laws
may be either "applicable" or "relevant and appropriate,"
but not both. Identification of ARARs must be done
on a site-specific basis and involves a two-part analysis:
first, a determination of whether a given requirement is
applicable; then, if it is not applicable, a determination
of whether it is nevertheless both relevant and
appropriate.
DEFINITIONS:
Applicable requirements are those cleanup
standards, standards of control, and other
substantive environmental protection
requirements, criteria, or limitations
promulgated under Federal or State law that
specifically address a hazardous substance,
pollutant, contaminant, remedial action,
location, or other circumstance at a CERCLA
site.
Relevant and appropriate requirements are
those same standards mentioned above that
while not "applicable" at the CERCLA site,
address problems or situations sufficiently
similar to those encountered at the site that
their use is well suited to the particular site.
On-site actions are required to comply with ARARs,
but must comply only with the substantive parts of an
applicable or relevant and appropriate requirement.
Off-site actions must comply only with legally applicable
requirements, but must comply fully with both
substantive and administrative requirements.
Printed on Recycled Paper
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m. CONTENTS OF MANUAL
Part I describes general procedures for identifying
ARARs and complying with ARARs in RCRA, CWA,
SDWA and ground-water policies. Pan I is organized
as follows:
Chapter 1, Genera! Procedures for CERCLA
Compliance with Other Statutes - defines the
terms "applicable" and "relevant and appropriate,"
describes general procedures for identifying and
analyzing requirements, identifies waivers from
ARARs, and provides matrices listing types of
potential ARARs from RCRA, CWA and SDWA
Chapter 2, Guidance for CERCLA Compliance
with RCRA - discusses RCRA hazardous waste
requirements and policies for determining when
RCRA requirements are ARARs for CERCLA
actions, including what actions at a CERCLA site
constitute "disposal," as defined by RCRA
Chapter J, Guidance for Compliance with Clean
Water Act Requirements - provides guidance for
compliance with CWA substantive requirements
for direct discharges, indirect discharges, and
dredge-and-fill activities.
Chapter 4, Guidance for Compliance with
Requirements of the Safe Drinking Water Act -
provides guidance for compliance with SDWA
requirements that may be ARARs, including
drinking water standards and the requirements for
underground injection control, sole-source
aquifers, and the wellhead protection program.
Chapter 5, Ground Water Protection Policies -
discusses ground-water classification, provides
guidance on consistency with policies for ground-
water protection, and includes a hypothetical
scenario for illustrating how ARARs are identified
and used.
Appendix A provides an overview of the major
environmental statutes and regulations covered in
Part I.
Part II of the manual describes general procedures for
complying with ARARs in CAA. TSCA FIFRA. other
resource protection statutes, mining waste statutes, and
State ARARS. Pan II is organized as follows:
Chapter 1, Introduction and Overview - provides
an introduction and overview of Part II of the
guidance manual and includes matrices of
potential ARARs covered in Part II.
Chapter 2, Clean Air Act Requirements and
Related RCRA and State Requirements - provides
guidance for compliance with CAA requirements
(including the National Ambient Air Quality
Standards, the National Emissions Standards for
Hazardous Air Pollutants, and the New Source
Performance Standards) and related RCRA and
State requirements for air emissions.
Chapter 3, Standards for Toxics and Pesticides -
provides guidance for compliance with statutes
(i.e., TSCA and FIFRA) that address toxic
substances (particularly PCBs) and pesticides.
Chapter 4, Other Resource Protection Statutes -
provides guidance for compliance with other
resource protection statutes, including the
National Historic Preservation Act, the
Archeological and Historic Preservation Act, the
Endangered Species Act, the Wild and Scenic
Rivers Act, the Fish and Wildlife Coordination
Act, the Coastal Zone Management Act, and the
Wilderness Act.
Chapter 5, Standards, Advisories, and Guidance
for the Management of Radioactive Waste
discusses potential ARARs and potentially useful
guidance for cleaning up radioactively
contaminated sites and buildings. Major acts
discussed include the Uranium Mill Tailings
Radiation Control Act, the Atomic Energy Act,
the Nuclear Waste Policy Act, CAA and CWA
. Chapter 6, Potential ARARs For CERCLA
Actions at Mining, Milling, or Smelting Sites -
provides guidance for compliance with statutes
incorporating standards for mining, milling, or
smelting sites, including the Surface Mining
Control and Reclamation Act and RCRA
« Chapter 7, CERCLA Compliance with State
Requirements discusses eligibility requirements for
State programs, specific types of State laws (e.g.,
siting requirements), and procedures for
communicating State ARARs.
Appendix A provides guidance for compliance with
CAA Part C requirements under the Prevention
of Significant Deterioration program.
Appendix B describes Federal/State relationships
under major Federal environmental statutes,
includine whether the statute allows for State
authorization of the program and whether the
State provisions are identical or more stringent
than the Federal requirements.
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CERCLA Compliance With Other Laws Manual
Overview of ARARs
Focus of ARARs Waivers
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vyEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9234.2-03/FS
December 1989
CERCLA Compliance With Other Laws Manual
Overview of ARARs
Focus on ARAR Waivers
Office of Emergency and Remedial Response
Office of Program Management OS-240
Quick Reference Fact Sheet
The Superfund Amendments and Reauthorization Act of 1986 (SARA) adopts and expands a provision in the 1985
National Contingency Plan (NCP) that remedial actions must at least attain applicable or relevant and appropriate
requirements (ARARs). Section 121(d) of CERCLA, as amended by SARA, requires attainment of Federal ARARs and
of State ARARs in State environmental or facility siting laws when such requirements are promulgated, are more
stringent than Federal laws, and are identified by the State in a timely manner.
To implement the ARARs provision, EPA has developed guidance, CERCLA Compliance With Other Laws Manual:
Parts I and II (OSWER Directives 9234.1-01 and 9234.1-02). EPA is preparing a series of short fact sheets that
summarize these guidance documents. This fact sheet summarizes Chapter 1 of Part I, which provides an overview of
ARARs. The material covered here is based on policies in the proposed revisions to the NCP. The final NCP may
adopt policies different from those covered here and should, when promulgated, be considered the authoritative source.
I. OVERVIEW OF ARARS
A. Statutory Provisions
CERCLA section 121(d)(2) states that for wastes left
on-site, remedial actions must comply with Federal and
State environmental laws that are legally applicable or are
relevant and appropriate under the circumstances of the
release. This section, in effect, codified and expanded on
the 1985 NCP, which required compliance with Federal
applicable or relevant and appropriate requirements
(ARARs), a provision adopted to make use of other
programs' or agencies' standards.
In addition, CERCLA requires Superfund remedial
actions to comply with State environmental or facility
siting laws provided that the State requirements: (1) are
promulgated; (2) are more stringent than Federal laws;
and (3) are identified by the State in a timely manner.
CERCLA section 121(d) also mentions two criteria
specifically -- Maximum Contaminant Level Goals
(MCLGs) developed under the Safe Drinking Water Act
(SDWA), and Water Quality Criteria (WQC) developed
under the Clean Water Act (CWA) - and requires that
they be attained when they are relevant and appropriate
(compliance with these criteria is discussed in a separate
fact sheet). CERCLA also specifies six circumstances in
which ARARs can be waived. The ARAR waivers are
discussed in Part II of this fact sheet.
B. Compliance with ARARs for Removal Actions
Although CERCLA requires compliance with
ARARs for remedial actions only, the current NCP
requires that removal actions also comply with Federal
ARARs, to the extent practicable. Furthermore, EPA
policy under the proposed NCP requires that removal
actions comply with both State and Federal ARARs to
the extent practicable. Until this policy is promulgated
by regulation, however, compliance with State ARARs
during removal actions must be justified based upon
protectiveness.
Factors used in determining whether removal
compliance with ARARs is practicable include: (1) the
urgency of the situation; and (2) the scope of the
removal action to be conducted, which includes
consideration of the statutory limits for removal actions.
An example of a situation where compliance with
ARARs is not practicable for a removal action would be
a site where emergency conditions call for a rapid
response, thereby preventing the on-scene coordinator
from identifying and attaining ARARs. An ARAR that
is beyond the scope of a removal to remediate top-level
soil contamination due to leaking drums might be one
that applies to lower-level soil remediation. Of course,
such a standard may still be an ARAR for any remedial
action that is subsequently taken at the site.
Printed on Recycled Paper
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C. Definitions of ARARs and TBCs
In the proposed revisions to the NCP (53 FR 51394),
EPA clarified the definitions of "applicable" and "relevant
and appropriate"-requirements (see Highlight 1).
Highlight 1: DEFINITION OF
"APPLICABLE" AND "RELEVANT AND
APPROPRIATE" REQUIREMENTS
Applicable requirements are defined as "cleanup
standards, standards of control, and other
substantive environmental protection requirements,
criteria, or limitations promulgated under Federal or
State law that specifically address a hazardous
substance, pollutant, contaminant, remedial action,
location, or other circumstance at a CERCLA site."
Relevant and appropriate requirements are defined
as "substantive environmental protection
requirements ... promulgated under Federal or State
law that, while not "applicable", ... address problems
or situations sufficiently similar to those.
encountered at the CERCLA site that their use is
well suited to the particular site."
1. Applicable Requirements
An applicable requirement directly and fully addresses
the situation at the site. In other words, an applicable
requirement is a substantive requirement that a private
party would be subject to if it were undertaking the action
independently from any CERCLA authority. For a
requirement to be applicable, all jurisdictional
prerequisites of the requirement must be met, including:
(1) the party subject to the law; (2) the substances or
activities that fall under the authority of the law; (3) the
time period during which the law is in effect; and (4) the
types of activities the statute or regulation requires, limits,
or prohibits.
2. Relevant and Appropriate Requirements
While a determination of applicability is primarily a
legal one, a determination of whether a requirement is
relevant and appropriate is site-specific and is based on
best professional judgment, taking into account the
circumstances of the release or threatened release. This
determination should be made in conjunction with
pertinent national policies.
There is more flexibility and discretion in making
relevant and appropriate determinations than in
determining the applicability of a requirement. Only
those requirements that are both relevant and appropriate
are ARARs. A requirement may be relevant, but not
appropriate, because of the site circumstances. Such a
requirement would not be an ARAR for the site.
Moreover, it is possible for only a portion of a
requirement to be considered relevant and appropriate,
while other parts may not. However, once a requirement
(or part of a requirement) is found to be relevant and
appropriate, it must be complied with to the same degree
as if it were applicable.
In determining whether a requirement is both
relevant and appropriate to the circumstances of the
release, the following comparisons should be made:
The purpose of the requirement and the purpose of
the CERCLA action;
The medium regulated or affected by the
requirement and the medium contaminated or
affected at the CERCLA site;
The substances regulated by the requirement and
the substances found at the CERCLA site;
The actions or activities regulated by the
requirement and the remedial action contemplated
at the CERCLA site;
Any variances, waivers, or exemptions of the
requirement and their availability for use given the
circumstances at the CERCLA site;
The type of place regulated and the type of place
affected by the CERCLA site or CERCLA action;
The type and size of the structure or facility
regulated and the type and size of the structure or
facility affected by the release or contemplated by
the CERCLA action; and
Any consideration of the use or potential use of
affected resources in the requirement and the use
or potential use of the affected resource at the
CERCLA site.
A similarity to any one factor is not necessarily sufficient
to determine that a requirement is relevant and
appropriate. Nor does a requirement have to be similar
to the site situation with respect to each factor in order
for it to be relevant and appropriate.
3. TBCs
By definition, ARARs are promulgated, or legally
enforceable Federal and State requirements. (Because
CERCLA identifies them as potentially relevant and
appropriate, MCLGs and WQC are considered potential
ARARs, even though they are not otherwise enforceable
standards.) EPA has also developed another category of
requirements, known as "to be considered" (TBCs), that
includes nonpromulgated criteria, advisories, guidance,
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and proposed standards issued by Federal or State
governments. TBCs are not potential ARARs because
they are neither promulgated nor enforceable. It may be
necessary to consult TBCs to interpret ARARs, or to
determine preliminary remediation goals when ARARs
do not exist for particular contaminants. However,
identification and compliance with TBCs is not mandatory
in the same way that it is for ARARs.
D. Types of ARARs
EPA has divided ARARs into three categories to
facilitate their identification:
Chemical-specific ARARs are usually health- or risk-
based numerical values or methodologies used to
determine acceptable concentrations of chemicals
that may be found in or discharged to the
environment, e.g., MCLs that establish safe levels in
drinking water.
Location-specific ARARs restrict actions or
contaminant concentrations in certain environmentally
sensitive areas. Examples of areas regulated under
various Federal laws include floodplains, wetlands,
and locations where endangered species or historically
significant cultural resources are present.
Action-specific ARARs are usually technology- or
activity-based requirements or limitations on actions
or conditions involving specific substances.
Chemical- and location-specific ARARs are identified
early in the process, generally during the site investigation,
while action-specific ARARs are usually identified during
the Feasibility Study (FS) in the detailed analysis of
alternatives.
E. Compliance with ARARs for On-site and Off-site
Actions
The ARARs provision in CERCLA addresses only
on-site actions (see Highlight 2 for definition of on-site).
In addition, section 121(e) exempts on-site actions from
having to obtain Federal, State, and local permits.
Consequently, the requirements under CERCLA for
compliance with other laws differ for on-site and off-site
actions, as follows:
On-site actions must comply with applicable and
relevant and appropriate requirements, but need
comply only with the substantive parts of those
requirements.
Off-site actions must comply only with requirements
that are legally applicable, but must comply with
both substantive and administrative parts of those
requirements.
(See Highlight 3 for definitions of "substantive" and
"administrative".) Compliance with "relevant and appro-
priate" requirements is not required for off-site actions.
Highlight 2: DEFINITION OF "ON-SITE"
"On-site" is defined in the proposed revisions
to the NCP as the "areal extent of contamination
and all suitable areas in very close proximity to the
contamination necessary for implementation of the
response action." See 53 FR 51477 (December 21,
1988). "Areal extent of contamination" refers to
both surface area, ground water beneath the site,
and air above the site. Examples of on-site
contamination and treatment units or staging areas
separate from (but in "very close proximity to") the
contamination include:
A disposal site for treated wastes in a new
landfill outside, but in close proximity to, a
contaminated wetland;
A point-source discharge into a river running
through a site. The discharge point would be
considered on-site, even if the discharge effluent
ultimately runs off-site. The action would have
to meet discharge limitations and monitoring
requirements, but would not require an NPDES
permit; and
A pump-and-treat system located in the
contamination plume several miles downgradient
of the source. The ground-water treatment
system is considered on-site.
Highlight 3: DEFINITIONS OF SUBSTANTIVE
AND ADMINISTRATIVE REQUIREMENTS
Substantive requirements are those
requirements that pertain directly to actions or
conditions in the environment. Examples
include quantitative health or risk-based
standards for certain hazardous substances (e.g.,
MCLs for drinking water), and technology-
based standards (e.g., RCRA minimum
technology requirements for double liners and
leachate collection systems).
Administrative requirements are those
mechanisms that facilitate the implementation
of the substantive requirements of a statute or
regulation (e.g., requirements related to the
approval of or consultation with administrative
bodies, documentation, permit issuances,
reporting, recordkeeping, and enforcement).
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F. ARARs Documentation
ARARs considered for each alternative in the
detailed analysis of alternatives should be documented in
detail in the Remedial Investigation/Feasibility Study
(RI/FS). The Proposed Plan and the ROD should
summarize how the components of an alternative will
comply with major ARARs, and should describe why the
requirement is applicable or relevant and appropriate.
The ROD should document ARARs as follows: (1)
major ARARs should be discussed in the Description of
Alternatives; (2) ARAR compliance should be summarized
in the Summary of the Comparative Analysis; and (3) all
ARARs selected for the remedy should be listed and
briefly described in the Statutory Determinations section.
When an alternative is chosen that does not attain an
ARAR, the basis for waiving the requirement must be
fully documented and explained. TBCs referred to in the
ROD should be listed and described briefly, as well as
the reasons for their use. Generally, there is no need to
document why a requirement is not an ARAR, although
documentation should be provided for both ARARs and
TBCs when the determination has been difficult or
controversial. (See Guidance on Preparing Superfund
Documents. [ROD Guidance] EPA-540/G-89/007, July
1989, and Guidance for Conducting RI/FSs Under
CERCLA. EPA 540/G-89/004, October 1988, for further
information.)
G. Policy on Newly Promulgated Requirements
"Freezing" ARARs at the ROD
If a requirement that would be applicable or
relevant and appropriate to the remedial action is
promulgated after the Record of Decision (ROD) is
signed and the ARARs for the selected remedy have
already been established, the remedy will be evaluated in
light of the new requirement to ensure that the remedy
is still protective.
To the extent that the remedy remains protective in
light of any new information reflected in the requirement,
the original ARARs remain "frozen" at the ROD and
nothing more needs to be done. However, if it is
determined that the new requirement must be met in
order for the remedy to be protective, the remedy must
be modified to attain the requirement through an
Explanation of Significant Differences (ESD) or ROD
amendment For example, a new requirement for a
chemical at a site may indicate, through new scientific
information on which it was based, that the cleanup level
selected for the chemical corresponds to a cancer risk of
10"2 rather than 10"5, as originally thought. The original
remedy would have to be reevaluated in terms of the new
requirement because it may no longer be protective.
H. FOCUS ON ARAR WAIVERS
CERCLA section 121 (d) provides that, under certain
circumstances, an ARAR may be waived. The six
statutory waivers are provided in Highlight Box 4 and are
discussed more fully below. These waivers may not be
used for off-site actions.
Highlight 4: STATUTORY ARAR WAIVERS
The six ARAR waivers provided by CERCLA are:
1. Interim Measures Waiver;
2. Equivalent Standard of Performance Waiver,
3. Greater Risk to Health and the Environment
Waiver;
4. Technical Impracticability Waiver;
5. Inconsistent Application of State Standard
Waiver, and
6. Fund-Balancing Waiver.
The Interim Measure waiver may be used when an
interim measure that does not attain all ARARs is
expected to be followed by a complete measure that will
attain all ARARs (see Highlight Box 5 for an example).
The interim measure should not cause additional
migration of contaminants, complicate the site response,
or present an immediate threat to public health or the
environment, and must not interfere with or delay the
Highlight S: EXAMPLE OF INTERIM
MEASURES WAIVER
At a mining site, interim measures were used to
address drainage of contaminated water from a
mine. The action involved passive treatment of
mine tunnel discharges through construction of an
artificial wetland, which would reduce
contamination from the mine tunnel to the level of
contamination present upstream. Since the
discharge exceeded State ambient water quality
standards for the stream, the standards were waived
until the final remedy was implemented, which
would address m-stream contamination.
-------
final remedy. It should be noted, however, that if a
requirement relates to some portion of the long-range
site cleanup that is outside the scope of the immediate
remedial action, it is not an ARAR for this action and
a waiver is unnecessary.
The Equivalent Standard of Performance waiver may
be used in situations where an ARAR stipulates use of a
particular design or operating standard, but equivalent or
better remedial results could be achieved using an
alternative design or method of operation. In invoking
this waiver, the alternative should be equal to or greater
than the ARAR in terms of: (1) the degree of protection
afforded; (2) the level of performance achieved; and (3)
the potential to be protective in the future. The time
required to achieve beneficial results using the alternative
should be considered; however, the duration of the
alternative should be balanced against other beneficial
factors that may ensue from using the alternative. A
technology-based requirement must be evaluated from a
technology performance perspective, not from a risk
perspective.
The Greater Risk to Health and the Environment
waiver is available for situations where compliance with an
ARAR will cause greater risk to human health and the
environment than noncompliance. The more significant
the risks, the longer they are in duration, and the more
irreversible the harm from compliance with an ARAR, the
more appropriate the use of this waiver (see Highlight 6
for an example).
Highlight 6: EXAMPLE OF GREATER RISK
TO HEALTH AND THE ENVIRONMENT WAIVER
A pump-and-treat system may be selected to
remove ground water contamination from landfill
releases. Analysis found that natural flushing
through the landfill, after excavation of the highly
contaminated waste, would facilitate cleanup of the
ground water and remove residual contamination
from the landfill. The waiver for greater risk was
used to waive the applicable RCRA closure
requirement for an impermeable cap, because such a
cap would prevent natural flushing and would
significantly delay and reduce the effectiveness of
the ground water cleanup, and therefore the
remedial action's effectiveness in reducing risk.
The Technical Impracticability waiver may be used
when compliance with an ARAR is technically impract-
icable from an engineering perspective. The waiver can
be used if either of two criteria are met: (1) engineering
feasibility, in which current engineering methods necessary
to construct and maintain an alternative that will meet the
ARAR cannot reasonably be implemented; and (2) reli-
ability, in which the potential for the alternative to
continue to be protective into the future is low, either
because the continued reliability of technical and
institutional controls is doubtful, or because of inordinate
maintenance costs. Use of the waiver may consider cost,
although cost should not be the major factor (see
Highlight 7 for an example).
Highlight 7: EXAMPLE OF TECHNICAL
IMPRACTICABILITY WAIVER
Ground water located in bedrock fractures and
deep bedrock contained highly contaminated
pockets of liquid waste along the fractures. MCLs
were waived because their attainment was
technically impracticable for several reasons,
including: (1) difficulty in predicting the extent
and location of fractures; (2) the inability to locate
and extract all pockets of liquid waste; (3) excessive
time frames for cleanup; and (4) the irregular
nature of the fractures that made effective
placement of extraction wells difficult.
The Inconsistent Application of State Standard
waiver may be invoked when evidence exists that demon-
strates that a State standard has not been or will not be
consistently applied to other remedial sites within the
State, including both NPL and non-NPL sites. A waiver
may be used, for example, for a State- standard" that was-
promulgated but never applied, or for a standard that has
been variably applied or enforced. A State standard is
presumed to have been consistently applied unless there
is evidence to the contrary.
The Fund-Balancing waiver may be invoked when
meeting an ARAR would entail such cost in relation to
the added degree of protection or reduction of risk
afforded by that standard that remedial actions at other
sites would be jeopardized. This waiver should be
considered when the cost of attaining an ARAR is 20%
of the annual remedial action budget or SlOO million,
whichever is greater (see Highlight 8 for an example).
Highlight 8: EXAMPLE OF FUND-
BALANCING WAIVER
The Fund-balancing waiver was invoked to
waive compliance with State water quality standards
because attaining these standards would have
required removal and off-site disposal of more than
4 million cubic yards of contaminated ore, tailings,
and bottom sediments in the streams and reservoir,
at an estimated cost of $1.4 billion. At the time of
ROD signature, the Fund had been nearly depleted,
with remaining monies reserved for ongoing
projects. The waiver' allowed selection of a
protective alternative of partial capping and surface
water diversion, costing $72.2 million.
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ARARs Q's and A's:
General Policy, RCRA, CWA, SDWA,
Post-ROD Information, and Contingent Waivers
-------
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9234.2-01/FS-A
June 1991
ARARs Q's & A's:
General Policy, RCRA, CWA, SDWA,
Post-ROD Information, and
Contingent Waivers
Office of Emergency and Remedial Response
Office of Program Management OS-240
Quick Reference Fact Sheet
Section I21(d)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as
amended by the 1986 Superfund Amendments and Reauthorization Act (SARA), requires that on-site remedial actions must
attain (or waive) Federal and more stringent State applicable or relevant and appropriate requirements (ARARs) of
environmental laws upon completion of the remedial action. The revised National Contingency Plan of 1990 (NCP) requires
compliance with ARARs during remedial actions as well as at completion, and compels attainment of ARARs during
removal actions to the extent practicable, considering the exigencies of the situation. See the 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 provision, EPA has developed guidance, CERCLA Compliance With Other Laws Manual:
Parts I and II (Publications 9234.1-01 and 9234.1-02), and has provided training to Regions and States on the identification
of and compliance with ARARs. These "ARARs Q's and A's" are part of a series of Fact Sheets that provide guidance on
a number of questions that arose in developing ARAR policies, in ARARs training sessions, and in identifying and
complying with ARARs at specific sites. This particular Q's and A's Fact Sheet, which updates and replaces a Fact Sheet
first issued in May 1989, addresses the ARARs general policy; compliance with the Resource Conservation and Recovery
Act (RCRA), the Clean Water Act (CWA), and the Safe Drinking Water Act (SDWA); Post-ROD Information and
Administrative Record requirements; and "contingency" waivers of ARARs.
I. General Policy
Ql. What difference does it make whether a requirement
is "applicable" or "relevant and appropriate"? Why
make that distinction?
A. It is true that once a requirement is determined to be
relevant and appropriate, it must be complied with as
if it were applicable. However, there are significant
differences between the identification and analysis of
the two types of requirements (see Highlight I).
"Applicability" is a legal and jurisdictional deter-
mination, while the determination of "relevant and
appropriate" relies on professional judgment, con-
sidering environmental and technical factors at the
site. There is more flexibility in the relevance and
appropriateness determination: a requirement may
be "relevant," in that it covers situations similar to
that at the site, but may not be "appropriate" to apply
for various reasons and, therefore, not well suited to
the site. In some situations, only portions of a
requirement or regulation may be judged relevant and
appropriate; if a requirement is applicable, however,
all substantive parts must be followed. (See Overview
of ARARs: Focus on ARAR Waivers. Publication
9234.2-03/FS, December 1989, for further discussion
on compliance with ARARs.)
For example, if closure requirements under Subtitle
C of RCRA are applicable (e.g., at a landfill that
received RCRA hazardous waste after 1980 or where
the Superfund action constitutes disposal of
hazardous waste), the landfill must be closed in
compliance with one of the closure options available
in Subtitle C regulations. These options are closure
by removal (clean closure), which requires decontam-
ination to health-based levels, or closure with waste
in place (landfill closure), which requires imperme-
able caps and long-term maintenance.
However, if Subtitle C closure requirements are not
applicable, but are determined 10 be relevant and
appropriate, then a "hybrid closure," which includes
other types of closure designs, may also be used. The
hybrid closure option arises from a determination
that only certain closure requirements in the two
Subtitle C closure alternatives are relevant and
appropriate. (See proposed NCP, 53 FR. at 51446,
and preamble to the NCP, 55 FR at 8743, for further
discussion of RCRA closure requirements and the
concept of hybrid closure.)
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Highlight 1: DEFINITIONS OF "APPLICABLE"
AND "RELEVANT AND APPROPRIATE"
"Applicable requirements mean those cleanup
standards, standards of control, and other
substantive environmental protection requirements,
criteria, or limitations promulgated under Federal
environmental or State environmental or facility
siting law that specifically address a hazardous
substance, pollutant, contaminant, remedial action,
location, or other circumstance at a CERCLA site."
[Section 300.5 of ihe NCP, 55 FR at 8814} In
other words, an applicable requirement is one with
which a private party would have to comply by law
if the same action was being undertaken apart from
CERCLA authority. All jurisdictional prerequisites
of the requirement must be met in order for the
requirement to be applicable,
If a requirement is not applicable, it still may be
relevant and appropriate. "Relevant and
appropriate requirements mean those cleanup
standards [that] ... address problems or situations
sufficiently similar to those encountered at ihe
CERCLA site that their use Is well suited to the
particular site." [Section 300.5 of the NCP, 55 PR
at 8817J A requirement that is relevant and
appropriate may "miss" on one or more jurisdic-
tional prerequisites for applicability but $till make
sense at the site, given the circumstances of the site
and release.
Q2. Does an applicable requirement take precedence over
one that is relevant and appropriate? In other
words, if an applicable requirement is available, will
that be the ARAR, rather than one that might
otherwise be relevant and appropriate?
A. No, a requirement may be relevant and appropriate
even if another requirement legally applies to that
situation, particularly when the applicable require-
ment was not really intended to address the type or
magnitude of problems encountered at Superfund
sites. For example, RCRA Subtitle D requirements
for covers for solid waste facilities may be applicable
when RCRA hazardous waste is not present at the
site. However, the soil cover required under Subtitle
D may not always be sufficient to limit leachate at a
Superfund site that has substantial amounts of waste
similar to RCRA hazardous waste. In such a
situation, some Subtitle C closure requirements may
be relevant and appropriate to some parts of the site,
even though Subtitle D requirements legally apply.
However, one factor that affects whether a
requirement is relevant and appropriate is whether
another requirement exists that more fully matches
the circumstances at the site. In some cases, this
might be a requirement that was directly intended for,
and is applicable to, the particular situation. For
example, Federal Water Quality Criteria generally
will not be relevant and appropriate and, therefore,
not ARAR when there is an applicable State Water
Quality Standard promulgated specifically for the
pollutant and water body, which therefore "more fully
matches" the situation. (See Overview of ARARs:
Focus on ARAR Waivers. Publication 9234.2-03/FS,
December 1989, for further discussion on compliance
with ARARs, and CERCLA Com-pliance With the
CWA and SDWA. Publication 9234.2-06/FS,
February 1990, for additional dis-cussion on the
resolution of potentially conflicting water ARARs.)
Q3. Is compliance with ARARs required for a "no action"
decision?
A. No. CERCLA Section 121 cleanup standards, in-
cluding compliance with ARARs, apply only to
remedial actions that the Agency determines should
be taken under CERCLA Sections 104 and 106
authority. A "no action" decision can only be made
when no remedial action is necessary to reduce,
control, or mitigate exposure because the site or
portion of the site is already protective of human
health and the environment. See Guidance on
Preparing Superfund Decision Documents (OSWER
Directive 9355.3-02) for further discussion of "no
action" decisions.
Q4. Does an ARAR always have to be met, even if it is
not necessary to ensure protectiveness?
A. Yes, unless one of the six waivers can be used.
Attainment of ARARs is a "threshold requirement"
in SARA, as is the requirement that the remedies be
protective of human health and the environment. If
a requirement is applicable or relevant and appro-
priate, it must be met, unless an ARAR waiver can
be used. ARARs represent the minimum that a
remedy must attain; it may sometimes be necessary,
where there are multiple contaminants with poten-
tially cumulative or synergistic effects, to go beyond
what ARARs require to ensure that a remedy is pro-«
tective. (See Overview of ARARs: Focus on ARAR
Waivers. Publication 9234.2-03/FS, December 1989
for further discussion on compliance with ARARs.)
Q5. If wastes from non-contiguous facilities are combined
on one site for treatment, is the treatment viewed as
off-site activity, and the unit therefore subject to
permitting?
A. No. Because the combined remedial action consti-
tutes on-site action, compliance with permitting or
other administrative requirements would not be
required (see Highlight 2). CERCLA Section
104(d)(4) authorizes EPA to treat two or more non-
contiguous facilities as one site for purposes of
response, if such facilities are reasonably related on
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Highlight 2: ON-SITE VS. OFF-SITE ACTIONS
The requirements under CERCLA for compliance
with other laws differ in two significant ways for on-
site and off-site actions. First, the ARARs pro-
vision applies only to oh-site actions; off-site
actions must comply fully only with any laws that
legally apply to that action. Therefore, off-site
actions need only comply with "applicable"
requirements, not with "relevant and appropriate"
requirements; ARAR waivers are not available for
requirements that apply to off-site actions.
Second, on-site actions must comply only with the
substantive portions of a given requirement; on-site
activities need not comply with administrative
requirements, such as obtaining a permit or record-
keeping and reporting. (Monitoring requirements
are considered substantive requirements.) Off-site
actions must comply with both substantive and
administrative requirements of all applicable laws.
[Note; ARARs are the requirements of environ-
mental and facility siting laws only. Independent of
ARARs, bn-site activities also must comply with
applicable requirements of non-environmental laws
(e.g., building codes and safety requirements),
excluding permit requirements.]
the basis of geography or their potential threat to
public health, welfare, or the environment. In
keeping with the statutory criteria under CERCLA
Section 121(b), combining facilities as one site for
remedial action must also be shown to be cost-
effective and not result in any significant additional
short-term impacts on public health and the environ-
ment. (See preamble to the NCP, 55 FR at 8690-
8691; Interim RCRA/CERCLA Guidance on Non-
Contiguous Sites and On-Site Management of Waste
Residue. OSWER Directive 9347.0-1, March 1986;
and 49 FR at 37076, September 21, 1984.)
Q6. Are environmental resource laws, such as the
Endangered Species Act, the National Historic Pres-
ervation Act (NHPA), and the Wild and Scenic
Rivers Act, potential ARARs for CERCLA actions?
A. Yes, requirements in, these laws are potential
ARARs. However, these laws frequently require
consultation with, and under some laws, concurrence
of, other Agencies or groups, such as the Fish and
Wildlife Service or the Advisory Council on Historic
Preservation. Administrative requirements such as
consultation or obtaining approval are not required
for on-site actions. However, it is strongly recom-
mended that the lead agency nevertheless consult
with the administering agencies to ensure compliance
with substantive requirements, e.g., the NHPA
requirement that actions must avoid or minimize
impacts on cultural resources. (See preamble to the
NCP, 55 FR at 8757. Also, see Summary of Part II:
CAA. TSCA. and Other Statutes. Publication 9234.2-
07/FS, April 1990, for further discussion of resource
protection laws.)
Q7. Are environmental standards and requirements of
Indian Tribes potential ARARs?
A. Yes. Indian Tribal requirements are potential
ARARs for CERCLA actions taken on Tribal lands
and are treated consistently with State requirements.
Tribal requirements that meet the eligibility criteria
for State ARARs, i.e., those that are promulgated
(legally enforceable and of general applicability), are
more stringent than Federal requirements, and are
identified in a timely manner, are potential ARARs.
(See preamble to the NCP, 55 FR at 8741-8742;
section 300.5 of the NCP, 55 FR at 8816 for a
definition of Indian Tribe; and the Revised Interim
Final Guidance on Indian Involvement in the
Superfund Program. OSWER Directive 9375.5-02A,
November 28, 1989.)
II. Resource Conservation and Recovery Act (RCRA)
Q8. How can RCRA listed waste be "delisted" when
wastes will remain on-site?
A. By documenting in the ROD that the substantive
requirements in RCRA for delisting have been met,
a RCRA listed waste may be "delisted" when wastes
remain on-site.
Once a listed waste is "delisted," it is no longer
considered a "hazardous waste" and is, therefore,
subject to RCRA Subtitle D requirements for solid
waste, rather than the more stringent RCRA Subtitle
C requirements.
The substantive requirements that must be met for
delisting a RCRA hazardous waste that will remain
on-site are the standards in 40 CFR sections
260.22(a)(l) and (2), which state that a waste that
"does not meet any of the criteria under which the
waste was listed as hazardous or an acutely hazardous
waste" and for which there is no "reasonable basis to
believe that factors (including other constituents)
other than those for which the waste was listed could
cause the waste to be a hazardous waste" is
"delistable." Administrative requirements, which
include requirements to undergo a petition and
rulemaking process and to develop and supply specific
-------
information, need not be met on-site. (See A Guide
to Delisting of RCRA Wastes for Superfund
Remedial Responses, Publication 9347.3-09/FS,
September 1990.)
Wastes containing constituents at health-based levels,
assuming direct exposure, generally will meet the
standards for delisting. Wastes with constituents at
higher levels may also be delistable, since the RCRA
delisting process allows fate-and-transport modeling,
generally based on the waste being managed in a
solid waste unit. The models used by the RCRA
program for delisting are recommended for use in
determining whether constituent concentrations above
health-based levels are delistable, e.g., for wastes that
will be land disposed (See 50 FR 48886, November
27, 1985 and 51 FR 41082, November 13,1986). The
Waste Identification Branch in the Office of Solid
Waste (FTS 382-4770) can also provide assistance
and advice in delisting a waste.
Substantive requirements for a waste to meet
delisting levels should be documented in the RI/FS
and the ROD, and a general discussion of why
delisting is warranted should be included (see A
Guide to Delisting of RCRA Wastes for Superfund
Remedial Responses. Publication 9347.3-09/FS,
September 1990). Generally, the constituent levels
that must be achieved in order for the waste to be
considered non-hazardous should be identified in the
ROD. Unless treatability studies done during the
RI/FS make delisting reasonably certain, the ROD
should also address, as a contingency, how the waste
will be handled if it does not achieve delistable levels,
based on full-scale treatability studies or actual
performance of the remedy during RD/RA. If the
waste cannot be delisted, and this contingency is
expressly noted in the ROD, a fact sheet may be
needed to notify the public that the contingency
remedy will be implemented.
Q9. Are RCRA financial responsibility requirements
potential ARARs for Superfund?
A. No, because they are considered to be administrative
requirements, not substantive environmental re-
quirements. RCRA financial responsibility require-
ments support implementation of RCRA technical
standards by ensuring that RCRA facility owners or
operators have the financial resources available
to address releases and comply with closure and
post-closure requirements. CERCLA agreements
with PRPs and, ultimately, the Fund itself, achieve
essentially the same purpose.
Q10. RCRA hazardous waste is placed into an existing
pit that had received hazardous waste in the past,
but is not subject to RCRA Subtitle C regulations
because the pit closed before 1980. Would the
minimum technology requirements (MTR) be
applicable?
A. Yes; although the pit is not considered a "new unit,"
all surface impoundments (i.e., both new and
existing) are subject to MTR if they receive
hazardous wastes (i.e., wastes that were hazardous as
of November 7, 1984) after November 1988. In
addition, the land disposal restrictions (LDRs)
prohibit placement of restricted wastes (which are
under a national capacity variance) in landfills or
surface impoundments that are not in compliance
with MTR. If such a waste is placed in the existing
waste pit, the pit would have to comply with MTR,
even though it is not a "new unit." See Superfund
LDR Guide #3: Treatment Standards and
Minimum Technology Requirements Under Land
Disposal Restrictions (LDRsX Publication 9347.3-
03/FS, July 1989.
III. Clean Water Act (CWA) & Safe Drinking Water Act (SDWA)
Qll. Do antidegradation laws for ground water, which are
increasingly common in State laws, mean that the
aquifer must be restored to its original quality before
contamination from the site occurred?
A. In most cases, no. Antidegradation laws are
prospective and are intended to prevent further
degradation of water quality. At a CERCLA site,
therefore, a State ground-water antidegradation law
might preclude the injection of partially treated water
into a pristine aquifer. It would not, however,
require cleanup to the aquifer's original quality prior
to contamination. If more stringent State standards
than those imposed under Federal law are determined
to be ARARs for the site, they would have to be met
(e.g., by meeting the discharge requirements) or
waived (e.g, by the interim remedy waiver). Where
temporary degradation of the ground water may be
required during remedial action, protection should
be provided by restricting access or providing
institutional controls, and EPA response actions
should ultimately result in restoration of the ground
water's beneficial uses. (See ARARs Q's & A's:
State Ground-Water Antidegradation Issues.
Publication 9234.2-11/FS, July 1990.)
Q12. There are some situations where an aquifer that is
a current or potential drinking-water source, treat-
able to MCLs at the tap, cannot be remediated to
non-zero MCLGs or MCLs in the aquifer. Would
non-zero MCLGs or MCLs still be relevant and
appropriate?
-------
In general, yes. The non-zero MCLGs and, if none,
the MCLs, are generally relevant and appropriate for
any aquifer that is a potential drinking-water source
(see Highlight 3) (see section 300.430(e)(2)(i)(B)-(D)
of the NCP, 55 FR at 8848). If they cannot be at-
tained (e.g., because of complex hydrogeology due to
fractured bedrock), an ARAR waiver for technical
impracticability should be used. If attainment of a
non-zero MCLG or MCL is impossible because the
background level of the chemical subject to CERCLA
authority (e.g., a man-made chemical) is higher than
that of the MCLG or MCL, attainment of the MCLG
or MCL would not be relevant and appropriate. (See
CERCLA Compliance With the CWA and SDWA.
Publication 9234.2-06/FS, January 1990.)
Highlight 3:
ARARs FOR GROUND-WATER CLEANUP
Non-zero MCLGs, and, if none, MCLs promulgated
under SDWA, generally will be the relevant and
appropriate standard for ground water that is or
may be used for drinking, considering its use, value,
and vulnerability as described in the EPA's Ground-
Water Protection Strategy (August 1984), e.g., for
Class I and II aquifers.
Q13. Many new MCLGs and MCLs will be promulgated or
existing ones revised in upcoming years. Will new or
revised MCLGs and MCLs, when promulgated, need
to be incorporated into the remedy, possibly altering
it? Should a proposed non-zero MCLG or MCL be
used as the remediation goal in the ROD?
A. Under the NCP, if a new requirement is promulgated
after the ROD is signed, and the requirement is
determined to be applicable or relevant and
appropriate, the remedy should be examined in light
of the new requirement (at the 5-year review or
earlier') to ensure that the remedy is still protective.
If the remedy is still protective, it would not have to
be modified, even though it does not meet the new
requirement. Since non-zero MCLGs and MCLs
often are a key component in defining remediation
levels, new or revised MCLGs and MCLs may reveal
that the chosen remedy is not protective. In such
cases, the remedy would have to be modified
accordingly. This could occur at any time after the
ROD is signed - during remedial design, remedial
action, or at the 5-year review.
However, a new non-zero MCLG or MCL usually
will not mean the remedy must be changed. If the
existing remedy is still within the risk range, even
considering the new MCLG or MCL. the remedy
would not have to be modified because the remedy
is still protective. For example, if the new non-zero
MCLG or MCL represents a risk of W6, while the
selected remediation level results in a 10"5 risk, the
remedy is still considered protective.
At some sites, however, a new MCLG or MCL
could require modification to the remedy after
implementation of the remedy has begun. There-
fore, if a proposed non-zero MCLG or MCL is
available before the ROD is signed, the preferred
remedy should be evaluated to determine how the
MCLG or MCL, if promulgated as proposed, would
affect the remedy. Will the preferred remedy
achieve the proposed MCLG or MCL? Could the
remedy achieve the proposed MCLG or MCL with
minor design modifications? Would the proposed
MCLG or MCL require significant changes, such as
requiring remediation in ground water that is
currently deemed fully protective?
The proposed non-zero MCLG or MCL may be
used as a "to-be-considered" (TBC) in establishing a
protective remediation level in the ROD, provided
that: (1) the new standard would make a remedy
based on the current standard unprotective; and (2)
the proposed standard is not controversial or
otherwise is unlikely to change. This reflects the
importance of non-zero MCLGs and MCLs in
Superfund's determination of protectiveness and as
a cleanup standard for the community. It also
minimizes the need for later changes to the remedy
when changes may be more difficult and costly to
make. (See CERCLA Compliance With the CWA
and SDWA. Publication 9234.2-06/FS, January
1990.)
Note: In the May 1989 version of this fact sheet,
Question 14 addressed the use of the 10"6 risk level
when non-zero MCLGs or MCLs exist for some,
but not all, significant contaminants. Question 14
has been omitted from this fact sheet because this
issue is currently being clarified by the Agency.
Final resolution of this issue will be addressed in
guidance in the near future.
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IV. Post-ROD Information and the Administrative Record
Q14. Should remedies be revised to attain requirements of
Federal or State environmental law that are
promulgated or modified after signature of the ROD?
A. In general, no. The requirements that are determined
to be ARARs for a site "freeze" at the time of
signature. Requirements that are newly promulgated
or modified post-ROD need to be attained (or
waived) only when EPA determines that these
requirements are ARARs and that they must be met
in order for the remedy to be protective (see section
300.430(f)(l)(ii)(B)(l) of the NCP). Newly prom-
ulgated or modified requirements will be considered
during the five-year review or sooner, if appropriate,
to determine whether the remedy is still protective.
(See Question 13 of this fact sheet and Question 6 of
the fact sheet entitled ARARs Q's & A's: Com-
pliance With the Toxicity Characteristics Rule.
Part I. (Publication 9234.2-08/FS, May 1990) for
examples of how the "freezing" regulation applies to
specific ARARs.)
Q15. What ARARs apply if information not known at the
time of ROD signature is discovered post-ROD (e.g.,
RCRA hazardous wastes are identified on the site for
the first time during construction activities)?
A. If, based on the new information, the Region decides
to change the remedy (e.g., in order to assure
protection), the Region must meet or waive all
ARARs identified at that time.
First, Regions must determine whether the new
information is such that the ROD should be revised
(and an Explanation of Significant Differences (ESD)
issued), or amended (and a ROD amendment issued).
If the Region believes that significant, but non-
fundamental, changes should be made in the selected
remedy based on new information (e.g., the discovery
of a new contaminant triggers an MCL that is more
difficult to meet, resulting in a decision to operate
the pump-and-treat system for 15 years instead of 10
years), then an ESD should be issued (see section
300.435(c)(2)(i) of the NCP). If the Region decides
to make a fundamental change in the remedy based
on the new information (e.g., to change from an
engineering control to an incineration remedy), the
process for a ROD amendment must be followed (see
section 300.435(c)(2)(ii) of the NCP). Regions
should include in the administrative record file any
documents upon which they base their determinations
to issue an ESD or ROD amendment (see section
300.825(a)(2) of the NCP). For additional
information on this issue, see Guide to Addressing
Pre-ROD and Post-ROD Changes. Publication
9355.3-02FS/4, April 1990.
If, however, the Region decides not to revise or
amend the ROD based on the new information,
then no new ARARs apply because the remedy is
not being changed. To the extent that the Region
wishes to document its reasoning on this point (e.g.,
to explain why the remedy remains protective even
taking into account newly-discovered RCRA wastes),
this information could be included in the admini-
strative record file. (Note: section 300.825(a)(l) of
the NCP allows EPA to add documents to the
administrative record file, after ROD signature, that
"concern a portion of a response action decision
that the decision document does not address or
reserves to be decided at a later date.")
Q16. If a ROD does address an action, location, or
chemical such that the proper set of ARARs could
have been identified prior to the signing of the
ROD, but one or more ARARs were not identified,
how should the Regions respond if those
requirements are identified post-ROD?
A. The selected remedy would generally not be
required to meet such late-identified requirements.
If the promulgated requirement existed prior to
ROD signature, and the waste, action, or location to
which the requirement potentially applied was also
known at the time of ROD signature, the failure of
a party to identify the requirement as an ARAR
within the meaning of CERCLA, during the public
comment period of the proposed plan, would likely
preclude the party from raising the issue after ROD
signature.
[Note that section 300.825(c) of the NCP requires
EPA to consider comments submitted by interested
persons after the close of the comment period only
"to the extent that the comments contain significant
information not contained elsewhere in the
administrative record file which could not have been
submitted during the public comment period an§
which would substantially support the need to
significantly alter the response action." This may be
a difficult test to meet where information on the
requirement was available during the public
comment period, and therefore, in most cases, could
have been brought to the Agency's attention at that
time.]
With regard to State ARARs, CERCLA Section
121(d)(2)(A)(ii) specifically provides that a
requirement of a State environmental or facility
siting law may be considered to be an ARAR only
if it is identified in a timely manner. (Sections
-------
300.400(g)(5), 300.515(d)(l), and 300.515(h)(2) of the
NCP indicate that State ARARs identification must
take place well before the signature of the ROD in
order to be considered "timely.")
EPA could decide to take a newly-identified require-
ment into consideration on a site-specific basis.
However, because no new information on the waste
composition or nature of the site is being brought
before the Region, it is likely that the risk assessment
performed at the site in question will have considered
all appropriate risks, and that the site is protective of
human health and the environment even in light of
the late-identified regulatory standard. In rare cases
where the Region evaluates the standard and decides
that the remedy should be changed or amended (e.g.,
based on a finding that the ARAR was incorrectly
analyzed and the remedy is not protective), an BSD
or ROD amendment should be considered. In such
cases any new components of the remedy would be
required to attain (or waive) those ARARs
identified at the time the ESD or ROD amendment
is issued. (Note: the ESD or ROD amendment
would be documented in the administrative record
file pursuant to section 300.825(a)(2) of the
NCP.) If the Region were to decide not to change
the remedy, but wanted to memorialize the analysis
of the late-identified requirement, an optional
Remedial Design Fact Sheet could be added to the
post-decision document file. Alternatively, the issue
could be addressed in a new comment period and
the analysis placed in the administrative record file
for the site, as discussed in section 300.825(b) of the
NCP.
V. Contingent Waivers
Q17. What are "contingent waivers" and when should they
be used?
A. When sufficient information is available at the time
of ROD signature indicating the possibility that an
ARAR waiver may be invoked at a site (e.g., the
RI/FS indicates that it may be technically impracti-
cable to attain non-zero MCLGs or MCLs in the
ground water based upon final determinations of the
size and scope of the contaminated plume), the lead
agency may consider including a contingent waiver in
the ROD. RODs with contingent waivers should
provide a detailed and objective level or situation at
which the waiver would be triggered. In addition, the
ROD should specify that the contingency is "reserved
to be decided at a later date," so that if the
contingency is invoked, the resulting documentation
becomes part of the administrative record (see NCP
section 300.825(a)(l), 55 FR at 8861). [Note: in
some situations, the Agency may not wish to identify
a separate trigger for waivers. For example, in some
ground-water cleanups, the Agency may wish to re-
tain the flexibility to vary pump rates or assess the
effects of temporary shutdown before invoking a
technical impracticability waiver.]
The decision to invoke the contingency should be
documented in a fact sheet which is placed in the
administrative record file. The Region may also
decide to issue a public notice (e.g., in a major local
newspaper of general circulation) that the contin-
gency has been invoked. An ESD is not required to
invoke a contingency specifically contemplated in
the ROD. (See Guide to Developing Superfund No
Action. Interim Action, and Contingency Remedy
RODs. Publication 9355.3-02/FS-3, April 1991, for
a general discussion of contingent remedies.)
* * * * *
NOTICE: The policies set out in this fact sheet are not final Agency action, but are intended solely as guidance.
They are not intended, nor can they be relied upon, to create any rights enforceable by any party in litigation with
the United States. Response personnel may decide to follow the guidance provided in this fact sheet, or to act at
variance with the guidance, based on an analysis of site-specific circumstances. The Agency also reserves the right
to change this guidance at any time without public notice.
*****
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CERCLA Compliance With Other Laws Manual
Summary of Part II
CAA, TSCA, and Other Statutes
-------
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9234.2-07/FS
April 1990
£EPA
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(i)), and 55 Fed. Reg. 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 (Publication* 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 ABR
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 con-
centrations 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) paniculate matter equal to
or less than 10 microns particle size (PM10); (5) ozone,
which results from the emissions of volatile organic com-
pounds (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).
Printed on Recycled Paper
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NAA', 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). Non-
attainment 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 non-
attainment 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 involve:- incineration at a municipal
landfill, the NSPS for paniculate 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 paniculate 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 Air Toxic Program
contains.
Highhght3: POTENTIAL NESHAP ARARs
POTENTIAL ASBESTOS NESHAP ARARs
40 CFR 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;
40 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, Nudear 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. Reg. 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, non-liquid, or articles), and PCB concentration.
See the CERCLA Compliance with Other Laws Manual.
Pan 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 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.
ffl. 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 CERCLA 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 require-
ments 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.
Highlights: POTENTIAL MINING
WASTE ARARS
Where a site contains geologic materials
containing sulfides, there may be a release or
threat of a 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 sealed 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 Ivavy 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. RCRA STANDARDS
RCRA section 3001(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. Reg. 36592 (September 1,
1989) and 55 Fed. Reg. 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 above-
referenced 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: KO64,
KO65, KO66, KO88, KO90 and KO91. Therefore,
RCRA Subtitle C requirements are potential ARARs for
sites containing these wastes (see 53 Fed. Reg. 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 arc 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. Ree. 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. Reg. 8666,8757
(March 8, 1990)). Consultation is most advantageous
when initiated early in the process, such as during the
preliminary assessment or 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 (DOl), 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 antf 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 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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ARARs Qfs and A's:
Fund Balancing Waiver
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United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9234.3-13/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 Reauthorization Act (SARA),
requires that on-site remedial actions must attain (or waive) Federal and more stringent State applicable or relevant and
appropriate requirements (ARARs) of environmental laws upon completion of the remedial action. The revised National
Contingency Plan of 1990 (NCR) requires compliance with ARARs during remedial actions as well as at completion, and
compels attainment of ARARs during removal actions to the extent practicable, considering the exigencies of the situation.
See NCP, 40 CFR section 300.415(i) (55 FR 8666, 8843) and section 300.435(b)(2) (55 FR 8666, 8852) (March 8, 1990).
To implement the ARARs provisions, EPA has developed guidance, CERCLA Compliance With Other Laws Manual:
Parts I and II (Publications 9234.1-01 and 9234.1-02), and has provided training to Regions and States on the identification
of and compliance with ARARs. These "ARARs Q's and A's" are part of a series of Fact Sheets that provide guidance on
a number of questions that arose in developing ARARs policies, in ARARs training sessions, and in identifying and
complying with ARARs at specific sites. This particular Q's and A's Fact Sheet addresses the Fund-balancing waiver, which
is one of six statutory waivers that may be invoked to allow the selection of a remedy that does not meet all ARARs.
Ql.
A:
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 Reauthorization 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 1: STATUTORY LANGUAGE
Section 121(d)(4)(F) of CERCLA, as amended,
states that a remedial action not meeting an
ARAR may be selected if:
"in the case of a remedial action to be
undertaken solely under Section 104 using
the Fund, selection of a remedial action that
attains such level or standard of control will
not provide a balance between the need for
protection of public health and welfare and
the environment at the facility under 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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Highlight!; EXAMPLE OF THE
FUND-BALANCING WAIVER
At site X, a State water-quality standard was
identified as an ARAR. Attaining this State
standard would have required the removal and off-
site disposal of millions of cubic yards of
contaminated sediments in the streams and
reservoir, at an estimated cost of more than $1
billion. The cost of attaining the ARAR exceeds
the threshold of four times the cost of a typical
operable unit, and thus, the Fund-balancing waiver
was considered. Based on an assessment of the
Fund, and needs at other sites, the Agency decided
to invoke the waiver. The waiver allowed selection
Of an alternative remedy that involved partial
capping and surface-water diversion at a fraction of
the original cost, while still achieving protectiveness
and complying with other ARARs.
Q3. When should the Fund-balancing waiver be
considered? Is there an absolute threshold for
invoking the waiver?
A. The Fund-balancing waiver is to be routinely 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 FR 8666, 8750.) However, there is
no set amount at which the waiver must be invoked.
Currently the threshold for considering the waiver is
4 x S14.4 million, or S57.6 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., FY1987
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 Administrative
Record should document the fact that the waiver was
considered and provide the rationale. For example,
the Region might determine that the cost of
performing this remedy is not so disproportionately
high as to threaten the availability of the Fund to
respond to other sites that may present a threat to
human health and the environment.
Q5. Can the Fund-balancing waiver be invoked even
when the cost threshold is not exceeded?
A. Yes. EPA has reserved the right to invoke this
waiver in specific situations when the cost of meeting
the ARAR is expected to fall below the threshold
but EPA has determined that the single site
expenditure would place a disproportionate burden
on the Fund. (See Preamble to the NCP, 55 FR
8666, 8750.)
Q6. Is the waiver available for other Federal agencies or
potentially responsible parties (PRPs)?
A. No. CERCLA Section 121(d)(4)(F) clearly restricts
use of this waiver to remedial actions conducted
under CERCLA Section 104 and financed by the
Fund. The waiver is unavailable to other Federal
agencies or PRPs, which use other monies for their
CERCLA activities. (See also Preamble to the NCP,
55 FR 8666, 8750.)
Q7. Most remedies have to comply with more than one
ARAR. If the Fund-balancing waiver is being
considered, which ARAR should be waived?
A. The ARAR that increases the potential remedial
action costs by the threshold amount should be
considered for the Fund-balancing waiver. However,
the remedial action must comply with other ARARs
that do not excessively raise the cost of remediation.
Q8. Can the Fund-balancing waiver be used with other
waivers?
A. Yes. For example, the Fund-balancing waiver could
be used to waive an excessively expensive ARAR at
the same site where it is necessary to waive another
ARAR because of technical impracticability.
Q9. Can the Fund-balancing waiver be used for removal
actions?
A. In theory, yes, but this is highly unlikely given the
monetary limits and limited scope of removal actions.
It is more likely that compliance with an excessively
expensive ARAR for a removal action would be
determined to be beyond the scope of the action, and
therefore impracticable under the NCP. (See NCP at
40 CFR section 300.415(i)(2) and Preamble to the
NCP, 55 FR 8666, 86%.)
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Q10. Can the Fund-balancing waiver be invoked only at
Fund-lead orphan sites (I.e., sites where no PRPs
have been identified)?
A. No. The Fund-balancing waiver may also be invoked
at a Fund-lead site where PRPs exist and may
potentially settle. However, if PRPs do settle and
subsequently take over the project, they cannot take
advantage of the waiver ~ the action will no longer
be solely funded under Section 104 and the Fund-
balancing waiver will no longer be available.
Likewise, the waiver is not available for mixed-
funding cases involving contributions by both PRPs
and the Fund. Therefore, where circumstances for
settlement with PRPs potentially exist, the Region
should anticipate this possibility by including a
contingent remedy (without the waiver) in the ROD.
If such a contingent remedy has not been included in
the ROD, and a settlement with PRPs is reached, the
ROD should be amended to remove the waiver or an
Explanation of Significant Differences (ESD) should
be issued. The ROD should be amended if removing
the waiver would fundamentally alter the basic
features of the selected remedy. (See NCP at 40
CFR section 300.435 (c)(2)(ii) and Preamble to the
NCP, 55 FR 8666, 8771-8772.) An ESD may be
issued if removing the waiver significantly changes,
but does not fundamentally alter, the remedy selected
in the ROD. (See NCP at 40 CFR section
300.435(c)(2)(i) and Preamble to the NCP, 55 FR
8666, 8770-8772.)
Q1L. If the Fund-balancing waiver has not been invoked in
the ROD because a PRP settlement was anticipated,
can it be subsequently invoked if no settlement ever
occurs?
A. Yes. If a settlement with PRPs is not reached, and
the remedy will be performed using Fund monies
under CERCLA Section 104, the Fund-balancing
waiver can be invoked by a ROD amendment or, in
appropriate cases, an ESD.
Q12. Will the answer to the previous questions ever lead
to an incentive for PRPs not to settle?
A. It could. However, the statute is clear that the Fund-
balancing waiver is available only for Fund-financed
actions. Of course, if such an incentive not to settle
exists, PRPs may be encouraged to settle through the
issuance of a unilateral order and the resulting
possibility of fines and treble damages. (See
CERCLA Sections 106 and 107(c)(3).)
Q13. If a remedy is undertaken solely using the Fund, and
the Fund-balancing waiver is invoked, can the Agency
later bring an action to recover its costs?
A. Yes. The fact that the statute allows EPA to select
a remedy made less expensive by the waiver does not
affect the right of the Agency to be reimbursed later
under CERCLA Section 107 for the costs of that
remedy.
Q14. What language should be used in the ROD for
invoking the Fund-balancing waiver?
A. Highlight 3 provides sample language for various
sections of the ROD. This language is based on the
hypothetical site circumstances presented in High*
light 2 of this fact sheet and a hypothetical State
law. For additional language, see Guidance on Pre-
paring Superfund Decision Documents (the "ROD
Guidance"), EPA/540/G-89/007, July 1989, page 6-5.
Highlight 3: SAMPLE ROD LANGUAGE
Sample language for the Statutory Determina-
tions Section (of the Declaration):
T>e selected remedy is protective of human
health and the environment, complies with or
meets the requirements for a waiver of Federal
and State requirements that are legally
applicable or relevant and appropriate to the
remedial action, and is cost-effective. This
remedy utilizes permanent solutions
Sample language for the Description of Alterna-
tives Section (of the Decision Summary):
The first remedial alternative, which involves
the removal and off-site disposal of
contaminated stream sediments, complies with
the State waterrquality standard at Reg. Sec.
X.100, because it ensures that stream water
contaminant levels will not exceed .001 ppm.
The State water-quality standard is applicable
to this remedial alternative because the
standard requires maintenance of all in-State
streams, reservoirs, and lakes at health-based
levels, as established in State regulations at
Sec. X.100.
The second remedial alternative, which
involves partial capping and surface-water
diversion, justifies a waiver of the State water-
quality standard found at Reg. Sec. X.100,
based on the Fund-balancing waiver found in
CERCLA Section 121(d)(4)(F) and NCP
section 300.430(f)(l) (ii)(C)(6). Attaining the
State water-quality standard for this operable
unit (as contemplated by the first remedial
alternative) would cost more than $1 billion.
EPA has determined that this site expenditure
would not provide a balance between the need
for protection of human health and the
environment at this site, and the availability of
Fund monies to respond to other sites that
may present a threat to human health and the
environment.
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Highlights: SAMPLE ROD LANGUAGE
(CONTINUED)
Sample language for the Summary of Comparative
Analysis of Alternatives Section (of the Decision
Summary):
EPA has determined that each remedial
alternative is protective of human health and
the environment, and complies with (or
justifies a waiver of) applicable or relevant and
appropriate requirements.
Sample language for the Statutory Determinations
Section (of the Decision Summary):
The selected remedy complies with onwaives
all Federal and State ARARs, The State
water-quality standard was waived for surface-
water cleanup at this site because attainment of
this requirement would cost more than $1
billion, which would not provide a balance
between the need for protection of human
health and the environment at this site and the
availability of Fund monies to respond to other
sites that may present a threat to human health
and the environment (See CERCLA Section
121(d)(4)(F) and theNCP, 40 CFR section
300.430(f)(l)(ii)(C)(6).)
*****
NOTICE: The policies set out in this fact sheet are
intended solely as guidance. They are not intended, nor
can they be relied upon, to create any rights enforceable
by any party in litigation with the United States. EPA
officials may decide to follow the guidance provided in this
fact sheet, or to act at variance with the guidance, based
on an analysis of site-specific circumstances. The Agency
also reserves the right to change this guidance at any time
without public notice.
-------
A Guide to Selecting Superfund Remedial Actions
-------
United States
Environmental Protection
Agency
Off ice of
Solid Waste and
Emergency Response
Directive: 9355.0-27FS
April 1990
SEPA
A Guide to Selecting
Superfund Remedial Actions
Office of EmeraeneMndjjfemedial Response
Hazardous Site Control Division OS-220
Quick Reference Fact Sheet
INTRODUCTION
The Superfund program's rem-
edy selection process is the decision-
making bridge between the analy-
sis of remedial alternatives for clean-
ing up a site conducted in a remedial
investigation/feasibility -study (RI/
FS) and the explanation of the se-
lected remedy that is documented
in a Record of Decision (ROD). This
fact sheet describes statutory re-
quirements for CERCLA remedies
and the process EPAhas established
in the 1990 revised National Con-
tingency Plan (55 FR 8666 (3/8/90))
for meeting these requirements.
This process is a general framework
for reaching a judgment as to the
most appropriate method of achiev-
ing protection of human health and
the environmentataparticular site.
This framework can be streamlined
as appropriate to the site.
STATUTORYREQUIKEMENTS
Section 121 of CERCLA man-
dates that the remedial action must:
1. Protect human health and the
environment;
2. Comply with applicable or rele-
vant and appropriate require-
ments (ARARs) unless a waiver
is justified;
3. Be cost-effective;
4. Utilize permanent solutions and
alternative treatment technolo-
gies or resource recovery tech-
nologies to the maximum ex-
tent practicable;
5. Satisfy the preference for treat-
ment as a principal element, or
provide an explanation in the
ROD why the preference was
not met.
EPAhas established a national
goal and expectations reflecting
these requirements in the 1990 NCP
(Sec. 300.43(XaXD(i) and (in). The
NCP also defines nine criteria that
are to be used to compare remedial
alternatives, to establish the basis
for the selection decision, and to
EXHIBIT 1: PROGRAM EXPECTATIONS
Protection of human health and the environment can be achieved
through a variety of methods: treatment to destroy or reduce the
inherent hazards posed by hazardous substances, engineering con-
trols (such as containment), and institutional controls to prevent ex-
posure to hazardous substances. The NCP sets out the types of
remedies that are expected to result from the remedy selection
process (Sec. 300.43 Treat principal threats, wherever practicable. Principal threats
for which treatment is most likely to be appropriate are
characterized as:
- Areas contaminated with high concentrations of toxic com-
pounds;
- Liquids and other highly mobile materials;
- Contaminated media (e.g., contaminated ground water,
sediment, soil) that pose significant risk of exposure; or
- Media containing contaminants several orders of magni-
tude above health-baaed levels.
> Appropriate remedies often will combine treatment and con-
tainment. For a specific site, treatment of the principal
threat(s) may be combined with containment of treatment
residuals and low-level contaminated material.
> Containment will be considered for wastes that pose a relatively
low long-term threat or where treatment is impracticable. These
include wastes that are near health-based levels, are substan-
tially immobile, or otherwise can be reliably contained over long
periods of time; wastes that are technically difficult to treat or
for which treatment is infeasible or unavailable; situations
where treatment-based remedies would result in greater over-
all risk to the human health or the environment during implem-
entation due to potential explosiveness, volatilization, or other
materials handling problems; or sites that are extraordinarily
large where the scope of the problem may make treatment of all
wastes impracticable, such as municipal landfills or mining
sites.
> Institutional controls are most useful as a supplement to engi-
neering control* for thort-and long-term managcTnent. Institu-
tional controls (e.g. deed restrictions, prohibitions of well con-
struction) are important in controlling exposures during reme-
dial action implementation and as a supplement to long-term
engineering controls. Institutional controls alone should not
substitute for more active measures (treatment or containment)
unless such active measures are found to be impracticable.
> Innovative technologies should be considered if they offer the
potential for comparable or superior treatment performance,
fewer/lesser adverse impacts, or lower costs for similar levels of
performance than demonstrated technologies.
>- Ground waters will be returned to their beneficial uses within
reasonable periods of time wherever practicable.
April 1990-1
-------
Exhibit 2
K«y Steps In th« (tov*lopni«nt of Remedial Alternative*
Develop Preliminary Remediation Qoafe
Heahh-baaed remediation goaJa (a.g.. lO^exceea cancer rm
point at departure, ARARa: reeufting in X ppm
1 r * Baaed on unlimited expoaure for relevant land uae . .
Determine VMM of contaminatic
that require remedial action
Idemrfy PrincfMl Threate thai are Candidatea for Treatment
Treat liquid*. highly toxic material. hq)hty mobile materiala
Exception* include large municipal
landfills. area* when cootammantB
are macoaaaibte. or other aftuationa
where treatment « not implement able
Identify Low-l»v«l ThrMtts that am CandidatM for ContainfTWit
£
Contain Treatment
RMiduataand
A*mainmo Material
Excapffiona
Smaf volume*
S*oaitiya axpoaur*
Contammant unnvliabl*
_L
Id^itrfy Remedial
Ak*rnattv«a for
O«tait«d Artaya**
and fWmady
S«4action
PartiaNy Trwtt
Treat to lavela that can
be ratiabty oontairwd
I
Fully fi**t
Tr««l to !») tor
which tri-m
demon str ate that statutory require-
ments have been satisfied (Sec.
300.430(0(1)). Each of these as-
pects of EPA's remedy selection
approach are described below.
GOAL AND EXPECTATIONS
OF THE REMEDY SELECTION
PROCESS
The national goal of the remedy
selection process is "to select reme-
dies that are protective of human
health and the environment, that
maintain protection over time, and
that minimize untreated waste"
(NCP Sec. 300.430(a)(lXi)).
While protection of human
health and the environment can be
achieved through a variety of meth-
ods, this goal reflects CERCLA's em-
phasis on achieving protection
through the aggressive, but realis-
tic use of treatment. The 1990 NCP
presents EPA's expectations regard-
ing circumstances under which
treatment, as well as engineering
and institutional controls, are most
likely to be appropriate (Sec.
300.430(aXlXiii), see Exhibit 1).
These expectations are intended pri-
marily to assist in focusing the de-
velopment of alternatives in the FS
(see The Feasibility Study: Devel-
opment and Screening of Alterna-
tives, OSWER Directive 9355.3-
01FS). These expectations do not
substitute for site-specific balanc-
ing of the nine criteria to determine
the maximum extent to which treat-
ment can be practicably used in a
cost-effective manner for a operable
unit.
Exhibit 2 illustrates the alter-
natives development process, as
shaped by the expectations. The
process begins with the identifica-
tion of preliminary remediation
goals, which provide initial esti-
mates of the contaminant concen-
trations/risk levels of concern. Based
on ARARs, readily available toxic-
ity information, and current and fu-
ture land use, preliminary remedia-
tion goals are initial health-based
levels and are used to define site ar-
eas that may require remedial ac-
tion (i.e., action areas). Areas on-
site with contaminant concentra-
tions several orders of magnitude
(e.g., 2) above these preliminary re-
mediation goals are candidate ar-
eas for treatment. Areas onsite with
contaminant concentrations within
several orders of magnitude of these
preliminary remediation goal levels
are candidate areas for containment.
The remediation goals, action ar-
eas, and target treatment/contain-
ment areas are refined throughout
the RI/FS process as additional in-
formation becomes available. The
final determination of remediation
goals, action areas, and the appro-
priate degree of treatment and con-
tainment are made as part of the
remedy selection.
THE REMEDY SELECTION
PROCESS
Overview
The remedy selection process
begins with the identification of a
preferred alternative from among
those evaluated in detail in the FS
by the lead agency, in consultation
with the support agency. The pre-
ferred alternative is presented to
the public in a Proposed Plan that is
2 - OSWER Directive 9355.0-27FS
-------
EXHIBITS: NINE EVALUATION
CRITERIA
EPA has developed nine criteria to
be used to evaluate remedial alterna-
tives to ensure all important considera-
tions are factored into remedy selection
decisions. These criteria are derived
from the statutory requirements of
Section 121, particularly the long-term
effectiveness and related considerations
specified inaction 121(bXl), as well as
other additional technical and policy
considerations that have proven to be
important for selecting among remedial
alternatives.
Threshold Criteria
The two most important criteria
are statutory requirements that must
be satisfied by any alternative in order
for it to be eligible for selection.
1. Over all protection of human health
and the environment addresses
whether or not a remedy provides
adequate protection and describes
how risks posed through each
exposure pathway (assuming a rea-
sonable maximum exposure) are
eliminated, reduced, or controlled
through treatment, engineering
controls, or institutional controls.
2. Compliance with applicable or rele-
vant and appropriate requirements
(ARARs) addresses whether a rem-
edy will meet all of the applicable
or relevant and appropriate require-
ments of other Federal and State
environmental laws or whether a
waiver can be justified.
Primary Balancing Criteria
Five primary balancing criteria are
used to identify major trade-offs between
remedial alternatives. These trade-offs
are ultimately balanced to identify the
preferred alternative and to select the final
remedy.
1. Long-term effectiveness and
permanence refers to the ability of a
remedy to maintain reliable protec-
tion of human health and the envi-
ronment over ti me, once cleanup goals
have been met.
2. Reduction of toxicity, mobility, or
volume through treatment is the an-
ticipated performance of the treat-
ment technologies a remedy may
employ.
3. Short-term effectiveness addresses the
period of time needed to achieve pro-
tection and any adverse impacts on
human health and the environment
that may be posed during the con-
struction and implementation period,
until cleanup goals are achieved.
4. Implementability is the technical and
administrative feasibility of a rem-
edy, including the availability of ma-
terials and services needed to imple-
ment a particular option.
5. Cost includes estimated capital and
operation and maintenance costs, and
net present worth costs.
Modifying Criteria
These criteria may not be considered
fully until afterthe formal publiccomment
period on the Proposed Plan and RI/FS
report is complete, although EPA works
with the State and community throughout
the project.
1. State acceptance addresses the sup-
port agency's comments. Where the
State or other Federal agency is the
lead agency, EPA's acceptance of the
selected remedy should be addressed
under this criterion. State views on
compliance with State ARARs are
especially important.
2. Community acceptance refers to the
public's general response to the alter-
natives described in the Proposed PI an
and the RI/FS report.
The 1990 NCP at 55 FR 8719-23
describes how the detailed analysis of al-
ternatives is to be performed using these
criteria. The detailed analysis is the infor-
mation base upon which the remedy selec-
tion decision is made. Chapter 7 of the
Interim Final Guidance for Conducting
Remedial Investigations and Feasibility
Studies Under CERCLA" (October 1988)
provides further detail on the process.
issued for comment along with the
RI/FS. Upon receipt of public com-
ments on the Proposed Plan, the
lead agency consults with the sup-
port agency to determine if the pre-
ferred alternative remains the most
appropriate remedial action for the
site or operable unit. The final
remedy is selected and documented
in a Record of Decision.
Considering the Nine Criteria
The identification of a preferred
alternative and final selection of a
remedy is derived from considera-
tion of nine evaluation criteria in
three major steps, as described in
the 1990 NCP (Sec.
300.430(f)(D(ii)(E)). The nine crite-
ria are presented in Exhibit 3. The
steps in which the criteria are con-
sidered are depicted in Exhibit 4
and discussed below.
Threshold Criteria
The first step of remedy selec-
tion is to identify those alternatives
that satisfy the threshold criteria.
Only those alternatives that pro-
vide adequate protection of human
health and the environment and
comply with ARARs (or justify a
waiver) are eligible for selection.
Alternatives that do not satisfy the
threshold criteria should not be
evaluated further.
Primary Balancing Criteria
The second step involves the
balancing of tradeoffs among pro-
tective and ARAR-compliant alter-
natives with respect to the five pri-
mary balancing criteria (and modi-
fying criteria, if known). In this
step, alternatives are compared with
each other based on their long-term
effectiveness and permanence, re-
duction in toxicity, mobility, or vol-
ume achieved through treatment,
implementability, short-term effec-
tiveness, and cost. The sequence in
which the criteria are generally con-
sidered, and pertinent considera-
tions related to each, are noted be-
low.
1. Long-term effectiveness and
permanence is a major theme of
CERCLA Section 121, and,
therefore, is one of the two most
important criteria used during
remedy selection to determine
the maximum extent to which
permanence and treatment are
practicable. This factor will
often be decisive where alterna-
tives vary significantly in the
types of residuals that will
remain onsite and/or their re-
spective long-term management
controls.
April 1990 - 3
-------
Exhibit 4
THRESHOLD
CRITERIA
BALANCING
CRITERIA
Alternatives
from Screening,
Based on Program
Expectations
Evaluate:
Long-term Effectiveness
Reduction of T.M.V.
Short-term Effectiveness
Implementability
Cost
±
Choose Preferred Alternative:
Balancing across Criteria
Emphasize Long-Term
Effectiveness and Reduction of
T.M.V.
JL
MODIFYING
CRITERIA
Proposed Plan Issued for Comment
State and
Community
Acceptance
Selected Remedy
2. Reduction in the toxicity, mobil-
ity, or volume of contaminants
achieved through the applica-
tion of treatment technologies
is the other criterion that will
be emphasized during remedy
selection in determining the
maximum extent to which per-
manent solutions and treatment
are practicable. Remedies that
use treatment to address mate-
rials comprising the principal
threats posed by a site are pre-
ferred over those that do not.
Treatment as part of CERCLA
remedies should generally
achieve reductions of 90 to 99
percent in the concentrations or
mobility of individual contami-
nants of concern. There will,
however, be situations where
reductions outside the 90 to 99
percent range will be appropri-
ate to achieve site-specific re-
mediation goals.
3. The short-term effectiveness of
an alternative includes consid-
eration of the time required for
each alternative to achieve pro-
tection, as well as adverse short-
term impacts that may be posed
by their implementation. Many
potential adverse impacts can
be avoided by incorporating
mitigative steps into the alter-
native. Poor short-term effec-
tiveness can weigh significantly
against an option and can, in
fact, result in an alternative
being rejected as unprotective if
adverse impacts cannot be ade-
quately mitigated.
4. Implementability is particularly
important for evaluating reme-
dies at sites with highly hetero-
geneous wastes or media that
make the performance of cer-
tain technologies highly uncer-
tain. Implementability is also
significant when evaluating
technologies that are less proven
and remedies that are depend-
ent on a limited supply of facili-
ties (e.g., TSCA-permitted land
disposal facility), equipment
(e..g., in-situ vitrification units),
or experts.
5. Cost may play a significant role
in selectingbetween options that
appear comparable with respect
to the other criteria, particu-
larly long-term effectiveness and
permanence, or when choosing
among treatment options that
provide similar performance.
Cost generally will not be used
to determine whether or not
principal threats will be treated,
except under special circum-
stances that make treatment
impracticable (see expecta-
tions). Cost can never be used to
pick a remedy that is not protec-
tive.
Modifying Criteria
If known at the completion of
the RI/FS, state (support agency)
and community acceptance of the
alternatives should be considered
with the results of the balancing
criteria evaluation to identify the
preferred alternative. After the
public comment period, state and
community acceptance are again
considered, along with any new in-
formation, and may prompt modifi-
cation of the preferred alternative.
4 - OSWER Directive 9355.0-27FS
-------
Exhibit 5
Relationship of the Nine Criteria to the Statutory Findings
NIKE CRITERIA
J
STATUTORY FINDINGS
1
PROTECTION OF HUMAN HEALTH
AND THE ENVIRONMENT
COMPLIANCE WITH ARARs
LONG-TERM EFFECTIVENESS
AND PERMANENCE
TOXICITY, MOBILITY, OR
VOLUME REDUCTION
THROUGH TREATMENT
SHORT-TERM EFFECTIVENESS
IMPLEMENTABILITY
COST
STATE AGENCY ACCEPTANCE
COMMUNITY ACCEPTANCE
PROTECTION OF HUMAN HEALTH
AND THE ENVIRONMENT
COMPLIANCE WITH ARARs OR
JUSTIFICATION OF A WAIVER
COST-EFFECTIVENESS
UTILIZATION OF PERMANENT
SOLUTIONS AND TREATMENT OR
RECOVERY TO THE MAXIMUM
EXTENT PRACTICABLE ("MEP")
PREFERENCE FOR TREATMENT
AS A PRINCIPAL ELEMENT OR
EXPLANATION AS TO WHY
PREFERENCE NOT SATISFIED
Identification of a Preferred
Alternative
Once the relative performance
of the protective and ARAR-compli-
ant alternatives under each crite-
rion has been established, prelimi-
nary determinations of which op-
tions are cost-effective and which
alternatives utilize permanent so-
lutions and treatment technologies
to the maximum extent practicable
are made to identify the preferred
alternative. Exhibit 5 illustrates
the relationship between the nine
criteria and the statutory require-
ments for remedy selection.
Cost-effectiveness is determined
by comparing the costs of all alter-
natives being considered with their
overall effectiveness to determine
whether the costs are proportional
to the effectiveness achieved. Over-
all effectiveness for the purpose of
this determination includes long-
term effectiveness and permanence;
reduction of toxicity, mobility, and
volume through treatment; and
short-term effectiveness. More than
one alternative can be cost-effec-
tive.
The determination of which cost-
effective alternative utilizes perma-
nent solutions and treatment to the
maximum extent practicable is a
risk management judgment made
by the decisionmaker who balances
the tradeoffs among the alterna-
tives with respect to the balancing
criteria (and modifying criteria to
the extent they are known). As a
general rule, those criteria that dis-
tinguish the alternatives the most
will be the most decisive factors in
the balancing. See Exhibit 6 for a
summary of criteria likely to be im-
portant in certain site situations.
The alternative determined to pro-
vide the best balance of trade-offs,
as considered in light of the statu-
tory mandates and preferences, as
well as the NCP goal and expecta-
tions, is identified as the preferred
alternative and presented to the
public for comment in a Proposed
Plan.
Final Selection of Remedy
Upon receipt of public com-
ments, the preferred alternative is
reevaluated in light of any new in-
formation that has become avail-
able, including State and commu-
nity acceptance, if previously un-
known. This new information should
be considered to determine whether
an option other than the preferred
alternative better fulfills the statu-
tory requirements. The decision-
maker's final judgment is docu-
mented in a Record of Decision.
April 1990 - 5
-------
Exhibit 6
EXAMPLES OF PROMINENT CRITERIA AND EXPECTATIONS
FOR SELECTED SITE SITUATIONS
SITUATION
Small area of high levels of toxk contaminants
(e.g., lagoon, hot spots)
Highly mobile contaminants (e.g., liquids, vola-
tiles, metals)
Very large volume of material contaminated
marginally above health-baaed levels (e.g., mine
tailings one order of magnitude above health-
based levels in soil)
Complex mixture of heterogeneous waste
without discrete hot spots (e.g., heterogeneous
municipal landfill waste)
Soils contaminated with high concentrations
ofVOCs
Contaminated ground water
PROMINENT CRITERIA
Long-term effectiveness.
Reduction of toxicity, mobility, or vol-
ume through treatment
Long-term effectiveness,
Reduction of mobility through treat-
ment
Implementability,
Cost
Implementability,
Short-term effectiveness,
Cost
Long-term effectiveness,
Short-term effectiveness
Long-term effectiveness.
Short-term effectiveness
EXPECTED RESULT OF REMEDY
SELECTION*
Treatment is preferred when highly toxic mate-
rial is a principal threat at a site
Treatment is preferred when highly mobile
material is a principal threat at a site
Containment may afford high level oflong-term
effectiveness; treatment may be difficult to im-
plement because of insufficient treatment ca-
pacity for large volume of material, and cost of
treatment may be prohibitive due to large scope
of site
Treatment of heterogeneous waste often diffi-
cult or infeasible, reducing implementability;
containment avoids short-term impacts and un-
certainties associated with excavation; cost of
treatment may be prohibitive
In-situ treatment may be preferred over excava-
tion because of negative short-term impacts and
high cost of excavation
Ground waters should be returned to beneficial
use as soon as is practicable
* These are only examples and have been highly simplified for illustration purposes. They are not intended to prescribe certain remedies
for certain situations.
NOTICE: The fdtideu set oat in this memorandum are intended soldy for the guidance of Government personnel. They are not intended, nor can they be relied
upon, to create any rights enforceable by any party in litigation with the United States. EPA officials may decide to follow the guidance provided in thii
memorandum, or to act at variance with the guidance, based on an analysis of specific rite circumstances. Remedy (election decision* are made and justified on
a case-specific bans. The Agency also reserves the right to change this guidance at any time without public notice.
6 - OSWER Directive 9355.0-27FS
-------
CERCLA Compliance With Other Laws Manual
CERCLA Compliance with State Requirements
-------
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9234.2-05/FS
December 1989
oEPA
CERCLA Compliance With Other Laws Manual
CERCLA Compliance
with State Requirements
Office of Emergency and Remedial Response
Office of Program Management OS-240
Quick Reference Fact Sheet
The 1986 Superfund Amendments and Reauthorization Act (SARA) adopts and expands a provision in the 1985
National Contingency Plan (NCP) that remedial actions must at least attain applicable or relevant and appropriate
requirements (ARARs). Section 121(d) of CERCLA, as amended by SARA, requires attainment of Federal ARARs and
of State ARARs in State environmental or facility siting laws when the State requirements are promulgated, more
stringent than Federal laws, and identified by the State in a timely manner.
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 provides a guide to Chapter 6 of Part II, which addresses CERCLA compliance with
State requirements. The material covered here is based on SARA and on policies in the proposed revisions to the NCP.
The final NCP may adopt policies different from those covered here and should, when promulgated, be considered the
authoritative source.
I. INTRODUCTION TO STATE ARARs
Prior to SARA, the NCP classified all State
requirements as criteria that EPA should consider when
selecting a remedy. The amendments elevated to the level
of potential ARARs any "promulgated" State requirements
that are "more stringent" than Federal requirements (see
Highlight 1 for specific criteria).
Highlight 1: CRITERIA FOR A STATE
REQUIREMENT TO QUALIFY AS AN ARAR
In order to qualify as a State ARAR, a State
requirement should be:
A State law;
An environmental or facility siting law;
Promulgated;
More stringent than the Federal requirement;
Identified in a timely manner; and
Consistently applied.
State requirements, like Federal requirements, must
also be substantive in nature to qualify as ARARs.
Administrative or procedural State requirements are not
ARARs. Elements of State ARARs are discussed below.
Generally, laws and regulations adopted at the State
level, as distinguished from the regional, county, or local
level, are considered to be State ARARs. Local laws in
themselves are not ARARs. However, requirements that
are developed by a local or regional body and are both
adopted and legally enforceable by the State may be
potential State ARARs. Potential State ARARs may
also be found where local or regional boards have
established standards that become part of a legally
enforceable State "plan."
II. STATE ENVIRONMENTAL OR FACILITY SITING
LAWS AS ARARs
Several common types of State statutes that may
provide State ARARs are described below. Guidance
on compliance with these requirements is provided.
A. State Siting Requirements (location Standards)
State siting requirements may restrict the location
of existing and expanding or new hazardous waste
treatment, storage, and disposal (TSD) facilities
(Highlight 2 provide1" the triggers for State siting
Printed on Recycled Papar
-------
requirements). Siting restrictions have generally been left
to the States to implement. However, the Resource
Conservation and Recovery Act (RCRA) contains limited
siting provisions that restrict locations in fault zones, 100-
year floodplains, salt dome and salt bed formations, and
underground caves. As of 1987, 33 States had
promulgated siting requirements that were more stringent
than Federal requirements.7
Highlight 2: TRIGGERS FOR STATE
SITING REQUIREMENTS
State siting requirements may be triggered as
potential ARARs when:
An existing hazardous waste site is in a restricted
location, and a corresponding action is required
(such as a removal, remediation, design, or
modified care);
A new hazardous waste unit is to be created in a
restricted location; or
A non-land-based unit is brought on-site.
The application of a State siting law to a Superfund
action also depends upon the State's definition of a "new"
or "existing" site. Because Superfund sites generally
represent pre-existing (and unplanned) situations, State
restrictions for new or operating facilities may not apply
to Superfund sites.
State siting requirements are commonly found in
State laws that address environmentally sensitive areas
such as wetlands, endangered species habitats, gamelands,
parks, preserves, and underground mining/subsidence
areas. States also protect ground water and surface water
through a variety of location standards such as: (1)
prohibitions of facilities in certain locations; (2)
quantitative setback distances from water supplies or other
water bodies; (3) quantitative thickness or hydraulic
conductivity in soil barriers; and (4) designation of
acceptable soil or rock type for facility siting. Finally,
buffer zones may also contain location standards ranging
from specific setback distances to general statements that
preclude interference with population areas.
B. Discharge of Toxic Pollutants to Surface Waters
The Clean Water Act (CWA) requires Slates to
identify water bodies that may be adversely affected by
toxic pollutants and to develop criteria to protect these
areas. State toxic pollutant regulations are generally pre-
Temple, Barker, and Sloane, Inc., Review of Stale Hazardous Waste
Facility Criteria, Revised Draft Final Report. U.S. EPA, Washington,
DC, 1987.
sented in the form of narrative goals rather than numeric
criteria. For example, State narrative requirements may
be expressed in terms predicated upon specific toxicity
testing procedures or in terms of whole effluent toxicity
limits. All substantive aspects of these narrative
requirements may be ARARs for CERCLA discharges.
In addition, general prohibitions on toxic pollutant
discharges of known carcinogens may be State ARARs
for on-site CERCLA discharges. All such State
requirements should be examined for any exemptions of
Federal activities.
C. Antidegradation Requirements for Surface Water
The CWA requires all States to adopt statutes or
regulations that prevent the degradation of high-quality
waters. In addition, States may have promulgated other
antidegradation requirements for surface waters (see
Highlight 3 for typical State antidegradation
requirements).
Highlights: TYPICAL STATE
ANTIDEGRADATION REQUIREMENTS
Typical State antidegradation requirements will
mandate the:
Maintenance of existing in-stream designated
beneficial uses;
Maintenance of high-quality waters unless the
State decides to allow limited degradation where
economically or socially justifiable;
Maintenance of the quality of Outstanding
National Resource Waters (ONRW); and
Use of best available technology for treatment
of new or increased pollution into high-quality
waters.
If a CERCLA remedial action involves a point-source
discharge of treated effluent to high-quality surface
waters, these various State antidegradation requirements
may be ARARs for the discharge.
D. Antidegradation Requirements for Ground Water
Like antidegradation requirements for surface water,
antidegradation requirements for ground water are
generally prospective in nature and are designed to
prevent further degradation of water quality. If a State
has developed antidegradation requirements for ground
water, CERCLA remedial actions involving injection of
partially treated water into a pristine aquifer may be
affected. These State requirements would not, however,
require cleanup to the aquifer's original quality prior to
contamination. However, there may be a State cleanup
-------
law that specifically requires cleanup to background, which
would constitute an ARAR for the remediation.
III. "PROMULGATED" LAWS AS ARARs
A State requirement must be promulgated to qualify
as an ARAR. A State requirement is promulgated if it
is: (1) legally enforceable; and (2) of general applicability
(see Highlight 4).
Highlight 4: PROMULGATED STATE LAWS
Legal Enforceability: State requirements may be
legally enforceable in several ways. State statutes
or regulations may either: (1) have their own
specific enforcement provisions written into them;
or (2) be enforced through the State's general
legal authority.
General Applicability: State requirements must
apply to a broader universe than Superfund sites.
For example, a State requirement having general
applicability ("of general applicability") would
apply to all hazardous waste sites in the State
that meet the jurisdictional prerequisites of the
requirement, not just to CERCLA sites.
Promulgated requirements are found in State statutes
and regulations that have been adopted by authorized
State agencies. Statute numbers, enactment dates, and
effective dates may indicate whether the requirements have
been promulgated. Such promulgated requirements may
be either numerical or narrative in form.
A. Criteria That Are "To Be Considered" (TBCs)
Although they are not ARARs, State advisories,
guidance and policies, etc., may help EPA define and
develop protective remedies and interpret State laws.
These State policies and guidance, known as "to be
considered" (TBCs), are not potential ARARs because
they are neither promulgated nor enforceable. It may be
necessary to consult TBCs to interpret ARARs or to
determine preliminary remediation goals when ARARs do
not exist for particular contaminants. States should
identify or communicate to EPA TBCs that they consider
to be pertinent to the remedy.
B. Narrative Standards
Occasionally, a State may submit as an ARAR a
narrative State statute. While narrative State statutes may
be ARARs, unpromulgated methodologies that are
designed to implement narrative statutes are not. EPA has
discretion to determine whether numbers obtained from
unpromulgated methodology should be met, or whether
they constitute TBCs. It is important to note, however,
that numbers derived from State narrative statutes may be
ARARs if the narrative statute is an ARAR, and has
implementing regulations that are also ARARs.
IV. "MORE STRINGENT" LAWS AS ARARs
CERCLA requires remedies to comply with State
requirements that are more stringent than Federal
requirements (see Highlight 5 for a definition of "more
stringent").
Highlights: CRITERIA FOR
"MORE STRINGENT"
State requirements are more stringent than
Federal requirements if the State program has
Federal authorization and the State
requirements are "at least" as stringent.
State programs that do not have a Federal
counterpart are generally more stringent
because they add new requirements.
Stringency comparisons may be necessary if a
State program is not Federally authorized but
has a Federal counterpart.
It is important to note that EPA believes that if a State
is authorized to implement a program in lieu of a
Federal agency, State laws arising out of that program
constitute the ARARs instead of the Federal authorizing
legislation. A stringency comparison is unnecessary
because State regulations under Federally authorized
programs are considered to be Federal requirements.
V. IDENTIFYING AND COMMUNICATING STATE
ARARs IN A TIMELY MANNER
CERCLA requires States to identify ARARs in a
timely manner. As a result, EPA and a State may enter
into a Superfund Memorandum of Agreement (SMOA)
which, among other things, establishes a schedule for
communicating ARARs. In the absence of a SMOA,
States must identify ARARs within certain timeframes
(identified below) in order for that identification to be
considered "timely". EPA is not legally required to
consider potential State ARARs that are not identified
within these timeframes. The responsibilities of a State
to communicate ARARs will vary depending upon its
role at the site (see Highlight 6 for State roles and
responsibilities).
A. Critical Points for Identifying State ARARs
There are particular points in the preremedial and
remedial processes during which the lead and support
agencies must communicate with each other. SMOAs
may identify timeframes for communicating potential
ARARs. Highlight 7 presents the critical points in the
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Highlight 6: STATE ROLES AND
RESPONSIBILITIES
As the support agency, the State is responsible for:
e Receiving and reviewing information about
proposed Federal ARARs and TBCs, as early as
site characterization;
e Coordinating State input on ARARs from all
State agencies;
Identifying State ARARs during the RI/FS;
e Justifying proposed State ARARs; and
e Reviewing ARARs identified in the proposed
plan and ROD.
As the lead agency, the State is responsible for:
e Requesting EPA's identification of Federal
ARARs;
e Identifying State ARARs during the RI/FS;
e Identifying ARARs and waivers in the proposed
plan; and
e Documenting compliance with ARARs in the
draft ROD.
pre-remedial and remedial processes if no SMOA exists,
or if the SMOA fails to address such timeframes. It is
important to note that regardless of their role, EPA and
the States each have an unvarying responsibility. States
are always responsible for identifying State ARARs and
communicating them to EPA in a timely manner. EPA
is always responsible for making the final determination
on ARARs as part of remedy selection, regardless of who
conducts the RI/FS (i.e., EPA, the State, or PRP), or who
recommends the remedy (i.e., EPA or the State), except
for State-lead non-Fund-financed sites.
1$. EPA Responsibilities for Communicating
Waivers
If EPA intends to waive any State-identified ARARs
in its proposed plan, or does not agree with the State
that a certain State standard is an ARAR, it must
formally notify the State either: (1) when the Agency
submits the RI/FS for State review; or (2) when the
Agency responds to the State's submission of the RI/FS.
In addition, EPA must respond to State comments on
waivers from, or disagreements about, State ARARs after
making the RI/FS and proposed plan available for public
comment.
Highlight 7: CRITICAL POINTS
FOR IDENTIFYING ARARS
Scoping of
tjw$i/«^i
Lead and support agencies Initiate discussion
ct potential ARARs and TBCs, focusing on
chemical- and location-specific requirements.
.
r
; ". Site Characterization . '
Lead agency sends Preliminary Site Char-
acterization Summary to support agencies to
facilitate ARARs Identification.
Lead agency requests potential chemlcal-
and location-specific ARARs and TBCs from
support agency.
Support agency has 3O days from receipt
of request to respond.
\
r
Devetopm*nt of Attlr lattvw
* Lead agency begins preliminary consideration
of action-specific ARARs.
\
F
Screening of Alternatives
Lead agency begins Identification of
action-specific ARARs.
Lead Agency notifies the support agency of
alternatives that passed Initial screening.
'
r
DetaRed Analysis of Alternatives
Before Comparative Analysis begins, lead
agency requests action-specific and any addi-
tional ARARs and TBCs from support agency.
Support agency has 3O days from receipt
of request to respond.
f
Selection of Preferred Alternative
Lead agency states In Proposed Plan whether
each alternative will comply with all Identified
ARARs and/or Identifies proposed waivers
and their justification.
Lead agency provides Proposed Plan and
RI/FS report to support agency for review.
*
Record of Decision (ROD)
Lead agency summarizes ARAR compliance
In ROD and provides draft ROD to support
agencies for review.
i
Remedial Design/Remedial Action
Lead agency:
provides a copy of the RD to support
agencies for review;
Identifies additional ARARs based upon
design specifications/changes;
verifies protectlveness of remedy If
significant new ARARs are promulgated;
and
reviews ARARs If RA significantly
different than the ROD.
-------
C. State Responsibilities for Documenting State ARARs
To demonstrate that the State requirement is an
ARAR, States are required by the NCR to provide
citations to the statute or regulation number. In addition,
States should provide the requirement's effective date and
description of scope, where appropriate. Furthermore,
States should provide evidence that the requirement is
more stringent than the Federal requirement. -Finally,
States should also describe in writing the relationship
between the State requirement and the site or action, to
show that the State requirement is applicable or relevant
and appropriate to that particular site or action.
VI. STATE STANDARD WAIVERS
A. Statutory Waivers
Of the six ARAR waivers set forth in CERCLA, one
applies exclusively to State ARARs: inconsistent
application of the State standard by the State. This
waiver may be invoked when evidence exists that a State
standard has not been or will not be consistently applied
to both non-NPL and NPL sites within the State. The
waiver may be used, for example, for a State standard
that was promulgated but never applied, or for a standard
that has been variably applied or enforced. A State
standard is presumed to have been consistently applied
unless there is evidence to the contrary.
B. State Waivers
In addition to the waivers provided by CERCLA,
many State regulations have their own waivers or excep-
tions to their requirements. When a State requirement
has a waiver that is applicable, the State requirement does
not have to be met. EPA makes the final determination
as part of the selection of remedy.
State waivers are common components of State
siting requirements. Usually only temporary or
emergency situations qualify for waivers of State siting
requirements. Remedial actions at Superfund sites may
qualify for State waivers depending upon their design and
the particular waiver requirements. To determine if a
remedial action qualifies for a State waiver, the State
waiver provision should be examined for its duration,
circumstances that justify its use, and any renewal
provisions.
C. State-Wide Bans
Under CERCLA section 121(d), a State-wide ban
prohibiting land disposal of hazardous substances is not
an ARAR unless the following three criteria are met:
The State requirement is of general applicability
and was adopted by formal means;
The State requirement was idopted on the basis of
hydrologic, geologic, or other relevant considerations
and was not adopted for the purpose of precluding
on-site remedial actions or other land disposal for
reasons unrelated to protection of human health
and the environment; and
The State arranges for, and assures payment of the
incremental costs of, utilizing a facility for
hazardous waste disposal.
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State and Local Involvement
in the Superfund Program
-------
United States
Environmental Protection
Agency
Office of Solid Waste
and Emergency Response
Publication No.
9375.5-01/FS
Fall 1989
EPA State and Local
Involvement In The
Superfund Program
Office of Emergency and Remedial Response
Hazardous Site Control Division (OS-220)
Quick Reference Fact Sheet
INTRODUCTION
When Congress first enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in 1980, it
required Slates to be active partners in conducting Superfund response actions. Under CERCLA, States with the technical and management
capability to carry out a response action may be authorized to lead cleanup efforts at a site. Local communities and certain local government
agencies (such as fire departments and public health agencies) also participate in Superfund cleanup operations.
In 1986, Congress amended CERCLA and passed the Superfund Amendments and Reauthorization Act of 1986 (SARA). CERCLA, as
amended, strengthens the partnership between the Federal Government and State and local authorities.
State and local governments play an important role in ensuring effective, efficient and well-coordinated cleanups. Often local authorities
arc the first rcsponders at the scene of a hazardous substance release, providing critical fire protection, security, and health-related services.
HOW STATES AND
LOCAL GOVERNMENTS
BECOME INVOLVED
The law authorizes the Federal Government to take response actions at a site (Federal-lead), or lo
transfer the necessary funds and management responsibility to a State (State-lead), to political
subdivisions of States or to federally recognized Indian Tribes. Regardless of who has the lead,
the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) (40 CFR Part 300)
is the master plan for Superfund response. Together, CERCLA, as amended, and the NCP, ensure
States' involvement in response by requiring EPA to work with States during: 1) negotiations with
potentially responsible parties (PRPs), 2) the National Priorities List (NPL) listing and deleting
process, 3) study of the site to determine cleanup options, and 4) selection and implementation of
the remedy.
CERCLA, as amended, prohibits EPA from providing for a remedial action unless the State makes
the following assurances or guarantees:
Pay part of the cleanup. A State is required to pay 10 percent of the cost of actual cleanup
only if the site was privately operated at the time of the hazardous substance release. A Stale
is required to pay 50 percent or more of the total response costs incurred by Superfund if the
Stale or locality operated the site at the time hazardous wastes were disposed there. For
example, if an old municipal landfill is found leaking hazardous chemicals, the Stale would
be required to provide at least half the cosl of an entire Superfund response. Political
subdivisions may provide the cost share, but the State must assure payment in case of default.
Ensure the availability of a facilily(s) for disposal of hazardous materials removed from a silc
during cleanup. Disposal facilities musl comply with all Federal and Suite requirements, and
must not ihrcatcn the quality of human health and the environment.
Ensure that the Suite's disposal capacity can adequately handle all waslcs gcneralcd within the
Stale over 20 years (effective siariing in 1989).
Operate and mainiain the selected remedy once the cleanup is completed and is proven lo be
operational and functional. The Slate assumes full responsibility for future operation arid
maintenance. Although a political subdivision may manage the aclual operation and
maintenance of the selected remedy, the Slate maintains ultimate responsibility.
Printed on Recycled Paper
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OVERVIEW OF CERCLA
Congress enacted the Comprehensive Envi-
ronmental Response, Compensation and
Liability Act (CERCLA), commonly known
as Supcrfund, in 1980. This law created a
lax on the chemical and petroleum indus-
tries and provided broad Federal authority
to respond directly to releases or threatened
releases of hazardous substances that may
endanger public health or welfare or the
environment. Over five years, $1.6 billion
were collected, and the tax went to a Trust
Fund for cleaning up abandoned or uncon-
trolled hazardous waste sites. The U;S. En-
vironmental Protection Agency (EPA) is re-
sponsible for running the Superfund pro-
gram.
On October 17,1986, the Superfund Amend-
ments and Reauthorization Act (SARA) was
signed into law. SARA increases the Trust
Fund to $8.5 billion over five years, and
strengthens EPA's authority to conduct
cleanup and enforcement activities.
Under the Superfund program, EPA can:
Pay for the cleanup of hazardous waste
sites when those responsible for such
sites cannot be found or are unwilling
or unable to clean up a site.
Take legal action to force those respon-
sible for hazardous waste sites that
threaten public health or the environ-
ment to clean up those sites or pay back
the Federal Government for the costs of
cleanup.
The law authorizes two kinds of response
actions:
Short-term ranovafe where actions may
be taken to address releases or threat-
ened releases requiring prompt re-
sponse.
Longer-term remedial responses that
permanently and significantly reduce
the dangers associated with releases or
threats of releases of hazardous sub-
stances that are serious but not immedi-
ately life threatening. They can be
conducted only at sites on EPA's Na-
tional Priorities List (NPL).
Remedial and removal responses include,
but are not limited to:
Destroying, detoxifying or immobi-
lizing the hazardous substances on
the site through incineration or other
treatment technologies.
Containing the substances on-sitc so
that they can safely remain there and
present no further threat.
Removing the materials from the site
to an EPA-approved, licensed haz-
ardous waste facility for treatment,
containment, or destruction.
Identifying and restoring contami-
nated ground water, halting further
spread of thecontaminants.or in some
circumstances providing an alternate
source of drinking water.
OVERVIEW OF SUPERFUND PROCESS
REMOVAL ACTIONS
MAY OCCUR PRIOR TO OR CURING THE REMEDIAL PROCESS
PUBLIC PARTICIPATION AND ENFORCEMENT ACTIVITIES
OCCUR DURING ALL REMEDIAL PHASES
State and local involvement in the Superfund program varies depending upon the type of response action. During a removal action, which
is an action taken over the short term to address a release or threatened release of hazardous substances, often local authorities are the first
rcspondcrs at the incident. For example, a city fire or police department can respond immediately to hazardous substance releases or may
serve in a support role to a Suite or Federal authority conducting removal cleanup activities.
During a remedial action, which is an action intended to stop permanently or substantially reduce over the long term a release or threatened
release of hazardous substances, there arc many ways for Stale and local governments to participate. States may conduct the Preliminary
Assessment and Site Inspection (PA/SO, the Remedial Investigation and Fcasibililv Study fRI/FS) or the Remedial Design and Remedial
Action (RD/RA). States and local governments also may help identify potentially responsible parties and inform local communities about
a cleanup. Whether a site requires a remedial or removal response, the role of State and local agencies is critical in protccling public health
and die environment.
-------
MECHANISMS TO
ENSURE STATE AND
LOCAL INVOLVEMENT
CODE OF
FEDERAL
REGULATIONS
40 CFR Part 35
Subpart 0
Supcrfund provides the following mechanisms for Stale and local involvement:
Cooperative Agreements transfer funds from EPA to States, political subdivisions thereof,
and/or Indian Tribal governments to undertake the lead for site-specific response, or to
defray their costs associated with participation in Federal-lead or political subdivision-lead
responses or other CERCLA implementation activities. It is also the legally binding
document to get assurances when the State does a remedial action. If a State receives
funds through a Cooperative Agreement, the State is not prohibited from entering into
intergovernmental agreements with political subdivisions for Superfund response.
Superfund State Contracts are joint, legally binding agreements between EPA and a Suite or
Indian Tribe. Superfund State Contracts provide a vehicle for assuring the transfer of Stale
cost-sharing funds when EPA is leading a response action, for documenting lhat Stales mccl
all required assurances under CERCLA, as amended, and for documcnling CERCLA
Seciion 121(0 involvement during a polilical subdivision-lead response.
Procedures for using Cooperative Agreements and Superfund State Contracts for Supcrfund
responses can be found at 40 CFR Part 35 Subpart O.
THE ROLE OF
POLITICAL
SUBDIVISIONS
A political subdivision may be directly involved in a Superfund remedial cleanup. States,
however, arc required to be active partners. What legally constitutes a political subdivision differs
from State to State. It is the responsibility of each Stale to determine what unit of government meets
its legislative definition of a political subdivision (for example, a region, county, or town).
If a political subdivision leads the Superfund response, there are two options available to ensure
appropriate State involvement and to provide the required assurances. In the first option, EPA
enters into a Cooperative Agreement directly with the political subdivision. In this scenario, EPA
must also enter into a three-party Superfund State Contract, which specifies how EPA, the State,
and political subdivision will comply with CERCLA Sections 104 and 121 andtheNCP. In the
second option, EPA enters into a Cooperative Agreement directly with the State. The State, in turn,
"passes through" the funds to a political subdivision and enters into a two-party Intergovernmental
Agreement with the political subdivision prior to either the State or political subdivision incurring
costs for field activities. This second option is similar to a State hiring a contractor to conduct
response activities.
THE ROLE OF
INDIAN TRIBES
Under the law, EPA is required to treat Indian Tribal governments substantially die same as
Suites. This means that if a Tribe is federally recognized, it may lead a response or may provide
support when EPA leads the activities. To be considered substantially equivalent to States, an
Indian Tribe must have jurisdiction over a site listed in CERCLIS (EPA's data base of information
on hazardous waste sites). Federally recognized Indian Tribes may not have to provide CERCLA
Section 104 assurances in all cases. Currently, EPA provides for off-site disposal, and the decision
of who will oversee the operation and maintenance of the remedy is made on a case-by-case basis.
THE ROLE OF
LOCAL GOVERNMENTS
Local governments also play an imporumt role during a Supcrfund cleanup. Although most local
governments do not have the resources to conduct entire cleanups at hazardous waste sites,
localities often provide imporumt public safety measures during emergencies, and may receive
some financial assistance under the Local Government Reimbursement (LGR) program (Section
123 of CERCLA, as amended).
The LGR program is intended to alleviate significant financial burden on local governments as u
result of conducting temporary emergency measures in response to a hazardous substance threat,
and offers assistance of up to $25,000 per response directly to local governments. Requirements
for pursuing reimbursement under CERCLA Section 123 are found in EPA's Interim Final Rule
-------
on Reimbursement to Local Governments for Emergency Response to Hazardous Substances
Releases (40 CFR Part 310). In addition, EPA has prepared a fact sheet and application package
that can be obtained bycontacting EPA's RCRA/Supcrfund Hotline.
Local communities are important sources of information. Localities may be the first to identify
a hazardous waste site by bringing it to the attention of State or Federal authorities. Communities
can provide valuable details about a Supcrfund site, including information on the location of sites
(site discovery), detail on site history (site investigation), and/or information on potentially
responsible parties.
States often will coordinate with local officials to identify community concerns regarding a site
cleanup. Throughout all cleanup actions, local officials are kept informed of plans and progress
through telephone contacts or visits by EPA and State staff. Communities may also be asked to
review and comment on important reports, studies, and proposed actions.
Whether a Federal-lead or State-lead managed response, to guarantee that local citizens arc
involved in decisions about cleanup actions in their communities, both EPA and the State conduct
formal and informal community relations activities. Each NPL site designated for remedial
response under Superfund must have an approved Community Relations Plan (CRP) in place
before field activities can begin.
FUTURE
DIRECTIONS
As the Superfund program continues to address the hazardous wa: te issue nationwide, State and
local governments will assume an increasingly active role in confronting issues at Supcrfund sites.
Some States have already developed their own State-wide cleanup program to address sites not
included on EPA's National Priorities List.
In an effort to support State and local involvement in Supcrfund responses, EPA has taken several
steps:
Developed a new Subpart to the NCP, the roadmap to conducting responses under CERCLA.
This Subpart outlines the requirements for State, local and Indian Tribal involvement in all
phases of response.
Published an administrative rule to complement the general procedures described in the NCP.
This rule, Cooperative Agreements and Superfund State Contracts for Supcrfund Response
Actions, can be found at 40 CFR Part 35 Subpart O.
Developed a series of Directives, designated by the 9375.5 code, which is guidance relating to
State, political subdivision, and federally recognized Indian Tribal involvement in the Supcr-
fund program.
The Agency also is encouraging States and local governments to participate in EPA-sponsorcd
training programs.
FOR MORE
INFORMATION
For more information on State and local involvement in the Supcrfund program, contact the
RCRA/Supcrfund Hotline at 202-382-3000 or 1-800-424-9346. For a list of directives and
publications or information on obtaining copies, contact the Supcrfund Docket & Information
Center (SDIC) at 202-382-6940.
For more information on training opportunities for Stale and local governments and Indian Tribes,
contact the Supcrfund Training Coordinator in EPA's Office of Solid Waste and Emergency
Response at 202-382-4364.
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Control of Air Emissions from
Superfund Air Strippers at Superfund Groundwater Sites
-------
,v
-------
-2- OSWER Directive 9355.0-28
are toxic, to the ambient air. The Superfund Program uses
control devices such as vapor phase carbon adsorption and
incineration to control these emissions.
In response to a request from Regional Air Division
Directors for a policy to guide the selection of controls for
air strippers, OERR and OAQPS conducted a joint study. The
results showed that historically close to half of the Superfund
air stripper sites had adopted controls during remedy
selection. Another 25 percent deferred the decision to the
remedial design phase. At sites with RODs signed after the
enactment of the Superfund Amendments and Reauthorization Act,
approximately two-thirds of the air strippers are controlled.
At these sites, control decisions were based on an analysis of
the cleanup standards established in Section 121 of CERCLA and
the other statutory considerations which together comprise the
nine remedy selection criteria: overall protection of human.
health and the environment; compliance with Applicable or
Relevant and Appropriate Requirements (ARARs); long-term
effectiveness/permanence; reduction of mobility, toxicity or
volume (MTV); short-term effectiveness; implementability; cost;
State acceptance; and community acceptance. Control decisions
to date have been driven largely by protectiveness and State
ARARs for both air toxics control and VOC control for ozone
reduction. Other criteria such as MTV, short-term
effectiveness, cost, and community acceptance, have also
influenced the inclusion of controls.
Despite the trend towards increased control of air emissions
from Superfund air strippers, the Agency remains concerned with
the control of these air emissions. This concern underlies the
vigorous efforts by EPA, States, localities, and industry across
the country to control air toxics and reduce VOCs in ozone
nonattainment areas. The adoption of this policy responds to
these concerns, reflects an overall Agency concern with
preventing the cross-media transfer of pollutants, and
recognizes that the number of Federal, State, and local ARARs
for both VOCs and air toxics appears to be rapidly increasing.
The following policy has been adopted to guide Regional
decisionmakers on the use of controls for air emissions from
Superfund air strippers, and other vented Superfund sources of
VOCs. This policy is grounded in the remedy selection process
and distinguishes between sites located in attainment and
nonattainment areas.
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-3- OSWER Directive 9355.0-23
STATEMENT OF POLICY
For sites located in areas that are attaining the National
Ambient Air Quality Standards for ozone, Regions should continue
applying controls based on existing Agency policy. In most
cases, this will mean the adoption of controls largely in
response to State ARARs, risk management (i.e., protective-
ness) guidelines, and other requirements of CERCLA Section 121.
In ozone nonattainment areas, however, the adoption of
controls is more likely to be indicated even if they are not
mandated by current Federal or State laws and regulations or
indicated by a cancer risk analysis. Aside from cancer risk
from air toxics, VOC emissions contribute to non-cancer health
risks in nonattainment areas because most are precursors to the
formation of ozone. Consideration of these non-cancer risks
when applying the remedy selection criteria generally will show
that in nonattainment areas Superfund air strippers, except
those with the lowest emissions rates as indicated below,
generally merit controls. In determining the need for air
stripper controls at a particular Superfund site in a
nonattainment area, the Regions should be guided by the
emissions limit goals in the document entitled, "Issues Relating
to VOC Regulation Cutpoints, Deficiencies, and Deviations,"
issued in May 1988 by the Office of Air Quality Planning and
Standards (OAQPS) to aid States in revising their State
Implementation Plans (SIPs) to incorporate post-1987 ozone
attainment strategies. The OAQPS guidance indicates that the
sources most in need of controls are those with an actual
emissions rate in excess of 3 pounds per hour (Ib/hr) or 15
Ib/day or a potential (i.e., calculated) rate of 10 tons per
year (TPY) of total VOCs. The calculated rate assumes 24-hour
operation, 365 days per year. Regions should note that control
levels are applied on a facility basis. For the purposes of
this guidance, facility is defined as a contiguous piece of
property under common ownership.
This guidance applies to air strippers at Superfund sites.
In establishing the policy, however, the potential for
applicability to other VOC sources is recognized. Generally,
the guidelines described for air strippers are suitable for VOC
air emissions from other vented extraction techniques (e.g.,
soil vapor extraction) but not from area sources (e.g., soil
excavation).
This guidance applies to future remedial decisions at
Superfund sites. The policy is not explicitly designed for
-------
-4- OSWER Directive 9355.0-28
actions taken by the removal program in the case of emergency or
time critical removal actions. However, where time and other
response circumstances permit, such as for non-time critical
actions, adherence to this policy is expected.
The control levels referred to above serve as guidelines
only if ARARs do not exist or are less stringent than presented
here. They are not intended to preclude or replace State
proposals for more stringent levels of control in pursuit of
Clean Air Act goals as part of SIP revisions in nonattainment
areas.
IMPLEMENTATION
This guidance seeks to incorporate air quality concerns into
the Superfund remedy selection process. In particular, the use
of controls for Superfund air strippers in nonattainment areas
demonstrates the Agency's commitment to reducing VOCs and thus
progressing toward attainment of the ozone standard.
Additionally, the guidance is consistent with both the current
NCP and proposed revisions. Where ARARs do not exist, EPA may
consider TBCs in setting target cleanup levels. This guidance
constitutes a TBC.
The Remedial Investigation/Feasibility Study (RI/FS) should
generate the data needed to support control decisions for both
attainment and nonattainment areas. At a minimum, the five
major types of information needed are:
Estimated cumulative uncontrolled air emissions rate
from all air strippers at the site
Consideration of health risks from the execution of the
remedy as well as from the uncontrolled site
Control alternatives and their costs
Ozone attainment status
Air ARARs
For purposes of this guidance "nonattainment area" means any
county included in a formal post-1987 ozone SIP deficiency
notification (SIP call) or any other county where the ozone
National Ambient Air Quality standard was exceeded during the
previous three-year period. EPA's initial SIP calls were issued
pursuant to Section 110(a)(2)(H) of the Clean Air Act and were
described in the September 7, 1988 Federal Register.
-------
-5- OSWER Directive 9355.0-23
The RI/FS scoping phase and work plan development should
describe the specific data to be generated and the methods for
doing so. Remedial Project Managers should consult with the
designated Air Superfund Coordinator for technical assistance.
Additional assistance is available from National Technical
Guidance Manuals developed jointly by the Air and Superfund
program offices for estimating air emissions and conducting air
pathway analyses. The ROD should summarize this information as
appropriate and clearly document the basis for the air emissions
control decision.
Addressees:
Regional Waste Management Division Directors
Regional Superfund Branch Chiefs
Regional Air Division Directors
Regional Air Branch Chiefs
OERR Division Directors
OAQPS Division Directors
-------
Indian Tribal Involvement
in the Superfund Program
-------
United States
Environmental Protection
Agency
Office of Solid Waste
and Emergency Response
Publication No.
9375.5-02/FS
Fall 1989
^ EPA Indian Tribal Involvement
In The Superfund Program
Office of Emergency and Remedial Response
Hazardous Site Control Division (OS-220)
Quick Reference Fact Sheet
INTRODUCTION
Under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), as
amended by the Superfund Amendments and Reauthorization Act of 1986, the U.S. Environmental Protection
Agency (EPA) is required to treat Indian Tribal governments substantially the same as States and to ensure
meaningful involvement by States, political subdivisions, and Indian Tribes. This fact sheet describes the
specific requirements of CERCLA and the National Oil and Hazardous Substances Pollution Contingency Plan
for Tribal involvement in the Superfund program.
CRITERIA FOR TREATMENT AS A STATE
Indian Tribes are treated essentially as States when they meet three criteria:
Are federally recognized
Have a Tribal governing body that is currently performing governmental functions to promote
health, safety and welfare of the affected population or to protect the environment within a
defined geographic area
Have jurisdiction over a site that is listed in CERCLIS (EPA's data base of information on
hazardous waste sites), or have jurisdiction over a site that is proposed or listed on the National
Priorities List (EPA's list of the nation's most serious hazardous waste sites), at which a Fund-
financed response is contemplated.
DETERMINATION OF "FEDERALLY RECOGNIZED"
Section 101(36) of CERCLA defines an Indian Tribe to be "any Indian Tribe, band, nation, or other
organized group or community, including any Alaskan Native village but not including any Alaskan Native
regional or village corporation, which is recognized as eligible for the special programs and services provided
by the United States to Indians because of their status as Indians." The Bureau of Indian Affairs (BIA)
establishes criteria to determine whether an Indian Tribe is federally recognized and publishes a list of these
Tribes in the Federal Register annually.
In some instances, a Tribe that has been federally recognized may not yet have been added to the
published BIA list. To verify the status of a Tribe, more recent information can be obtained from the Branch
of Acknowledgment and Research, BIA Headquarters, Washington, D.C., (202)343-1710.
Printed on Racycted Paper
-------
OPPORTUNITIES FOR TRIBAL INVOLVEMENT
Federally recognized Indian Tribes may participate in Superfund response as either a lead or support
agency for Fund-financed activities during each phase of response. Indian Tribes may obtain funds for both
lead and support agency involvement through a Superfund Cooperative Agreement. In addition, Tribes may
seek funding for non-site-specific activities that facilitate their involvement in the Superfund program through
a Core Program Cooperative Agreement.
CERCLA, as amended, prohibits EPA from undertaking a remedial action unless a State makes certain
assurances or guarantees, including paying for part of the cleanup, ensuring disposal capacity, and conducting
operation and maintenance of the remedy. Federally recognized Indian Tribes may not have to provide these
CERCLA Section 104 assurances in all cases. In many cases, EPA provides the required assurances for the
Indian Tribes.
EPA retains primary enforcement authority under CERCLA for sites within the jurisdiction of States,
political subdivisions, and Indian Tribes. Indian Tribal governments are afforded the opportunity similar to
States to participate in EPA negotiations with responsible parties for actions relating to, or directly impacting,
land under Tribal jurisdiction. If a Tribal government participates in negotiations, it may become a signatory.
FOR MORE INFORMATION
EPA has developed a series of documents describing opportunities and requirements for Tribal
involvement. These include:
Subpart F of the NCP, which outlines the requirements for State, local, and Indian Tribal
involvement as lead or support agency in all phases of Superfund response
40 CFR Part 35 Subpart O, which describes administrative procedures for entering into
"Cooperative Agreements and Superfund State Contracts for Superfund Response"
"Hazardous Waste Releases on Indian Land: Beginning the Superfund Process"
(EPA/540/8-89/001), which is a handbook to assist Tribes in dealing with releases
OSWER directives in the 9375.5 series, which pertain to State, political subdivision, and
federally recognized Indian Tribal involvement in the Superfund program.
For a complete list of EPA directives and publications on Indian Tribal involvement in the Superfund program
or information on obtaining copies, contact the Superfund Docket and Information Center at (202)382-3046.
Further information on Indian Tribal involvement in the Superfund program can be obtained from the RCRA/
Superfund Hotline at (202)382-3000 or (800)424-9346.
-------
Interim Guidance on Establishing
Soil Lead Cleanup Levels at Superfund Sites
Oil
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OSWER Directive 19355.4-02
MEMORANDUM
SUBJECT:
FROM:
TO:
PURPOSE
Interim Guidance on Establishing SoiJ. Lead Cleanup
Levels at Superfund Sites. / /
nl //
Henry L. Longest II, Director '// ^l '
Office of Emergency and Remedial Response
Bruce Diamond, Director
Office of Waste Programs Enforcement
Directors, Waste Management Division, Regions I, II,
IV, V, VII and VIII
Director, Emergency and Remedial Response Division,
Region II
Directors, Hazardous Waste Management Division,
Regions III and VI
Director, Toxic Waste Management Division,
Region IX
Director, Hazardous Waste Division, Region X
The purpose of this directive is to set forth an interim soil
cleanup level for total lead, at 500 to 1000 ppm, which the Office
of Emergency and Remedial Response and the Office of Waste Programs
Enforcement consider protective for direct contact at residential
settings. This range is to be used at both Fund-lead and
Enforcement-l«ad CERCLA sites. Further guidance will be developed
after the Ag«ncy has developed a verified Cancer Potency Factor
and/or a Reference Dose for lead.
BACKGROUND
Lead is commonly found at hazardous waste sites and is a
contaminant of concern at approximately one-third of the sites on
the National Priorities List (NPL). Applicable or relevant and
appropriate requirements (ARARs) are available to provide cleanup
levels for lead in air and water but not in soil. The current
-------
National Ambient Air Quality Standard for lead is 1.5 ug/m3.
While the existing Maximum Contaminant Level (MCL) for lead is
50 ppb, the Agency has proposed lowering the MCL for lead to 10 ppb
at the tap and to 5 ppb at the treatment plant(1). A Maximum
Contaminant Level Goal (MCLG) for lead of zero was proposed in
1988 (2). At the present time, there are no Agency-verified
toxicological values (Reference Dose and Cancer Potency Factor,
ie., slope factor), that can be used to perform a risk assessment
and to develop protective soil cleanup levels for lead.
Efforts are underway by the Agency to develop a Cancer
Potency Factor (CPF) and Reference Dose (RfD), (or similar
approach), for lead. Recently, the Science Advisory Board
strongly suggested that the Human Health Assessment Group (HHAG)
of the Office of Research and Development (ORD) develop a CPF for
lead, which was designated by the Agency as a B2 carcinogen in
1988. The HHAG is in the process of selecting studies to derive
such a level. The level and documentation package will then be
sent to the Agency's Carcinogen Risk Assessment Verification
Exercise (CRAVE) workgroup for verification. It is expected that
the aocumentation package will be sent to CRAVE by the end of
1989. The Office of Emergency and Remedial Response, the Office-
of Waste Programs Enforcement and other Agency programs are
working with ORD in conjunction with the office of Air Quality
Planning and Standards (OAQPS) to develop an RfD, (or similar
approach), for lead. The Office of Research and Development and
OAQPS will develop a level to protect the most sensitive
populations, namely young children and pregnant women, and submit.
a documentation package to the Reference Dose workgroup .for
-verification. It is anticipated that the documentation package
will be available for review by the fall of 1989.
IMPLEMENTATION
The following guidance is to be implemented for remedial
actions until further guidance can be developed based on an Agency
verified Cancer Potency Factor and/or Reference Dose for lead.
Guidance
This guidance adopts the recommendation contained in the 1985
Centers for Disease Control (CDC) statement on childhood lead
poisoning^3) and is to be followed when the current or predicted
land use is residential. The CDC recommendation states that
"...lead in soil and dust appears to be responsible for blood
levels in children increasing above background levels when the
concentration in the soil or dust exceeds 500 to 1000 ppm".
Site-specific conditions may warrant the use of soil cleanup
levels below the 500 ppm level or somewhat above the 1000 ppm
level. The administrative record should include background
documents on the toxicology of lead and information related to
site-specific conditions.
-------
I The range of 500 to 1000 ppm refers to levels for total lead,
as measured by protocols developed by the Superfund Contract
Laboratory Program. Issues have been raised concerning the role
that the bioavailability of lead in various chemical forms and
particle sizes should play in assessing the health risks posed by
exposure to lead in soil. At this time, the Agency has not
developed a position regarding the bioavailability issue and
believes that additional information is needed to develop a
position. This guidance may be revised as additional information
becomes available regarding the bioavailability of lead in soil.
Blood-lead testing should not be used as the sole criterion
for evaluating the need for long-term remedial action at sites that
do not already have an extensive, long-term blood-lead data
base(1).
EFFECTIVE DATE OF THIS GUIDANCE
This interim guidance shall take effect immediately. The
guidance does not require that cleanup levels already entered in\to.
Records of Decisions, prior to this date, be revised to conform
with this guidance.
1 In one case, a biokinetic uptake model developed by the Office
of Air Quality Planning and Standards was used for a site-
specific risk assessment. This approach was reviewed and
approved by Headquarters for use at the site, based on the
adequacy of data (due to continuing CDC studies conducted over
many years). These data included all children's blood-lead
levels collected over a period of several years, as well as
family socio-economic status, dietary conditions, conditions of
homes and extensive environmental lead data, also collected over
several years. This amount of data allowed the Agency to use the
model without a need for extensive default values. Use of the
model thus allowed a more precise calculation of the level of
cleanup needed to reduce risk to children based on the amount of
contamination from all other sources, and the effect of
contamination levels on blood-lead levels of children.
REFERENCES
1. 53 FR 31516, August 18, 1988.
2. 53 FR 31521, August 18, 1988.
3. Preventing Lead Poisoning in Young Children, January
U.S. Department of Health and Human Services, Center.'
Disease Control, 99-2230.
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Risk Assesment Guidance for Superfund:
Volume I
Human Health Evaluation Manual
-------
United States
Environmental Protection
Agency
Office of Solid Waste and
Emergency Response
Washington, D.C. 20460
9285.7-01/FS
April 1990
EPA
Risk Assessment Guidance
for Superfund: Volume I
Human Health Evaluation Manual
(Part A)
Office of Emergency and Remedial Response
Hazardous Site Evaluation Division, OS-230
Quick Reference Fact Sheet
The overarching mandate of the Superfund program is to protect human health and the environment from current and
potential threats posed by uncontrolled releases of hazardous substances. To help meet this mandate, the U.S.
Environmental Protection Agency's (EPA's) Office of Emergency and Remedial Response (OERR) has developed a human
health evaluation process as part of its remedial response program. EPA's Human Health Evaluation Manual describes the
process of gathering information and assessing the risk to human health, and together with the Environmental Evaluation
Manual comprise a two-volume set (Volumes I and II, respectively) called Risk Assessment Guidance for Superfund (RAGS).
RAGS replaces two previous EPA guidance documents: the Superfund Public Health Evaluation Manual (SPHEM; 1986) and
the Draft Endangerment Assessment Handbook (1985).
The Human Health Evaluation Manual has three main parts: baseline risk assessment (Part A), refinement of preliminary
remediation goals (Part B), and risk evaluation of remedial alternatives (Part C). Part A of this manual is being distributed as
an Interim Final document. Remedial project managers (RPMs) should ensure that the procedures in this guidance be used
for all new human health risk assessments conducted as part of the remedial investigation/feasibility study (RI/FS) process.
Copies of Part A can be obtained by calling EPA's Center for Environmental Research Information at 513-569-7562 (FTS
684-7562). Parts B and C are targeted for completion in 1990.
This fact sheet is designed to alert RPMs and other personnel to (1) new aspects of the Human Health Evaluation Manual
(Part A), (2) the purpose and steps of the baseline risk assessment, and (3) where additional help can be obtained.
PURPOSE OF THE HUMAN HEALTH
EVALUATION
The human health evaluation is used in the Superfund
program to:
help identify which sites warrant remedial action;
provide a consistent process for evaluating and
documenting human health risk;
ensure protectiveness by the refinement of
risk-based, site-specific remediation goals;
provide focus for the FS;
help to measure the effectiveness of remedial
alternatives; and
aid in priority setting for remedial design/
remedial action.
HUMAN HEALTH EVALUATION IN THE
RI/FS PROCESS
The RI/FS is the methodology that the Superfund program
has established for characterizing the nature and extent of
risks posed by uncontrolled hazardous waste sites and for
developing and evaluating remedial options. The
Superfund Amendments and Reauthorization Act of 1986
reemphasized the original statutory mandate that remedies
meet the threshold requirement to protect human health
and the environment. Because the RI/FS is an analytical
process designed to support risk management
decision-making, the assessment of health and
environmental risk plays an essential role in the RI/FS.
Highlight 1 shows the stages of the RI/FS, relating health
risk evaluation activities to each stage. Although the RI/FS
process and related risk evaluation activities are presented
in a fashion that makes the steps appear sequential and
distinct, in practice the steps are usually highly interactive.
HUMAN HEALTH EVALUATION AND
ENDANGERMENT FINDINGS
One of EPA's goals in the Superfund program is to use
more CERCLA section 106 (i.e., imminent and substantial.
endangerment) orders to compel potentially responsible
parties to design and conduct the remedial actions. In order
for EPA to issue and enforce a section 106 order, the
baseline risk assessment must be sufficient to support the
finding that there may be an imminent and substantial
endangerment to public health or welfare or the
environment because of an actual or threatened release of
a hazardous substance. By requiring careful adherence to
the Human Health Evaluation Manual (together with the
Environmental Evaluation Manual), the resulting baseline
risk assessment should be adequate to support an
endangerment finding and thus a CERCLA section 106
order.
P-inted on Recycled Paper
-------
-2
Highlight 1
Human Health Risk Evaluation Activities in the RI/FS Process
RI/FS
STAGES
HUMAN
HEALTH
RISK
EVALUATION
ACTIVITIES
Scoping
Review data
colected ki ette
Inspection
Review samplng/
data colectton
plans
Formulate prefer*
nary remediation
goals (ROs)
effort tor baselne
risk assessmsnt
v '
RI/FS: |
Sits EttsMshinsnt of Development & Dstalsd
Characterization Remedtal Action Screening of* Analysis of
(Rl) Objectives (FS) Altematives (F8) Alternatives (FS)
: '
uresmkiarv aT
Conduct basetos HO* basedolS rilk E?f^f!T!l?!( 1
*M*M"l*m ARARs alternatives I
' -
PART A OF THE MANUAL:
BASELINE RISK ASSESSMENT
The baseline risk assessment process described in Part A of
the manual consists of four main steps as shown in
Highlight 2. Relevant information identified through data
collection and evaluation (Step 1) is used to develop
exposure and toxicity assessments (Steps 2 and 3). Risk
characterization (Step 4) summarizes and integrates both
the toxicity and exposure steps into quantitative and
qualitative expressions of risk.
WHAT'S NEW IN THE MANUAL
The Human Health Evaluation Manual revises and builds
upon the health evaluation process established in SPHEM.
Provided are new information and techniques gleaned from
several years of program experience conducting risk
assessments at hazardous waste sites. Policies established
and evolved over the years including those resulting
from the revised National Oil and Hazardous Substances
Pollution Contingency Plan (NCP) have been updated
and clarified. In addition, the link between the human
health evaluation, the environmental evaluation, and the
RI/FS has been strengthened.
HIGHLIGHTS OF THE REVISION
Introduction. Emphasizes shift in NCP and RI/FS
philosophy toward efficiency, effectiveness, and a bias for
action.
Data Collection (new chapter). Encourages assessors' early
involvement in RI/FS planning and effective
communication with RPMs. Describes procedures for
acquiring reliable chemical release and exposure data for
quantitative assessment. The topics discussed in the Data
Collection chapter are shown in Highlight 3.
Data Evaluation (new chapter). Provides nine steps to
organize data and to identify a set of chemicals and
concentrations that are of acceptable quality for use in the
quantitative risk assessment. The nine data evaluation
steps are shown in Highlight 4.
Highlight 2
Part A: Baseline Risk Assessment
Exposure Assessment
Analyze contaminant ratoase*
Menttfy expoMd populations
Identify potential exposure pathways
Estimate exposurs concentrations
for pathways
Estimate contaminant Makes for
pathways
Data Collection and Evaluation
QjOisr and analyzs ratsvant sKs data
Identity potential chwntcal* of concern
L
Risk Characterization
Characterize potential tor advene
health fleets to occur
Eatknate cancer risks
' Estimate noncancsr hazard
quotient* and kidfces
Evaluate uncertainty
Summarize rt*k Information
Toxicity Assessment
Colect quattattve and quantltattve
toriclty Information
Determine appropriate toxtctty value*
-------
- 3-
Highlight 3
Topics Discussed in
Data Collection Chapter
Available site Information
Modeling parameter needs
Background sampling needs
Preliminary identification of human ex-
posure
Overall strategy for sample collection
Need for Special Analytical Services
Activities during workplan development
and data collection
Exposure Assessment. Gives specific equations and
parameter values for common Superfund site exposure
pathways. Defines the revised NCP's reasonable maximum
exposure (RME) concept under both current and future
land-use conditions. Highlight 5 defines the RME and
describes the specific terms in the general exposure
equation used to generate the RME.
Toxicity Assessment. Discusses EPA guidances, toxicity
data bases, and Superfund technical assistance groups.
Provides updated discussion of EPA's toxicity assessment
methods. Defines hierarchy of toxicity data sources, as
shown in Highlight 6.
Risk Characterization. Provides guidance for summarizing
risk information for use in decision-making. Presents
Highlight 4
Data Evaluation Steps
Step 1:
Step 2:
Step 3:
Step 4:
Step 5:
Step 6:
Step 7:
Step 8:
Step 9:
Gather all data available from the site
Investigation and sort by medium.
Evaluate the analytical methods used.
Evaluate the quality of data with respect to
sample quantitation limits.
Evaluate the quality of data with respect to
qualifiers and codes.
Evaluate the quality of data with respect to
blanks.
Evaluate tentatively Identified compounds.
Compare potential site-related contamination
with background.
Develop a set of data for use In the risk
assessment
If appropriate, further limit the number of
chemicals to be carried through the risk
assessment
expanded discussion of uncertainty. Includes examples of
helpful visual presentations of risk assessment as shown in
Highlights 7 and 8.
Documentation, Review, and Management Tools (new
chapter). Presents new tools for the RPM, risk assessor,
and risk assessment reviewer. These new tools are
described in Highlight 9. They include an RPM
involvement checklist (see Highlight 10), recommended
format for a baseline risk assessment report, and a risk
assessment reviewer's checklist.
Highlight 5
Reasonable Maximum Exposure (RME)
The reasonable maximum exposure (RME) is de-
fined as the highest exposure that could reasonably
be expected to occur at a site. RME is calculated
using the following general equation,
I
C x CRxEFD x J_
BW AT
where:
I = Intake; the amount of chemical at the
exchange boundary (mg/kg body
weight- dy).
C = Concentration; the average chemical
concentration contacted over the
exposure period (e.g., mg/I).
CR = Contact Rate; the amount of
contaminated medium (e.g., soil, air,
water) contacted per unit time or event
(e.g., l/dy).
EFD = Exposure Frequency and Duration; how
often and how long exposure occurs
(e.g.. dy/yr. yr). .^
BW = Body Weight the average body weight
over the exposure period (kg).
AT = Averaging Time; the time period over
which exposure is averaged (dy).
Use a 95th upper confidence limit on the arithmetic mean
concentration contacted over the exposure period, rather than
the mean itself. Rationale: uncertainty in the measurements
or modeling will be quantitatively considered.
Use the 95th percentile intake rate. Rationale: this will be
protective of most of the population.
Use the 95th percentile estimate if available, or best profes-
sional judgment to estimate a conservative value. Rationale:
statistical data on these terms are rarely available; a conserva-
tive estimate is suggested rather than a best or average esti-
mate in order to be protective.
Use the arithmetic average body weight over the exposure
period. Rationale: body weight is not always independent of
intake; by using the average, error from this dependence is
minimized; using the average rather than the 5th percentile
body weight will also reduce the number of upper-bound
values that are multiplied together.
-------
Highlight 6
Hierarchy of Toxicity Data Sources
Integrated Risk Information System (IRIS)
Provides verified reference doses
(RfDs) and slope factors
Updated monthly
EPA's preferred source of toxicity
information
_L
Health Effects Assessment Summary Tables
(HEAST)
Provides interim as well as
verified RfDs and slope factors
Should be used only for
chemicals not addressed in IRIS
Other EPA Reference*
Do not necessarily provide verified
RfDs and slope factors
Should be used only for chemicals
not found or referenced in IRIS or
HEAST
EPA's Environmental Criteria and
Assessment Office must be contacted
first (513-569-7300; FTS 684-7300)
Highlight 8
Example of Presentation of Relative
Contribution of Individual
Chemicals to Exposure Pathway
and Total Hazard Index Estimates
Nearby Resident Population
Chronic Hazard Index = 0.6
1.2
1.1
1.0
o.a
0.8
Hazard °7
Index* 0.8
0.5
0.4
0.3
0.2
0.1
0.0
Phenol
Nitrobenzene
MEK
Well Water
Contaminated
Fish
Exposure Pathway
The hazard Index Is equal to the sum of the hazard quotients (I.e.. exposure
teveVRfD) tor each chemical. It Is not a probability: a hazard Index or quotient of
£1.0 Indicates that It Is unlikely for even sensitive human populations to
experience adverse health effects.
Radiation Risk Assessment Guidance (new chapter).
Provides basic principles and concepts of radiation
protection and supplemental baseline risk assessment
guidance for use at sites contaminated with radioactive
substances.
Appendices (new). Provide technical information on
absorbed vs. administered dose, and a complete index for
quick reference.
Highlight 7
Example of Presentation of Relative
Contribution of Individual Chemicals
to Exposure Pathway and Total
Cancer Risk Estimates
Nearby Resident Population
Excess Lifetime Cancer Risk 4 3 x 10 *
Exposure Pathway
" ma nafc ol oavaloptoa, cancer to pMlad on log acala. A Hak ol lO^lndlcalaa probability
0(1 dune* to 10,000 or antotfMdualdavaUpina. CHICK. Riaka ol I0-*and 10-*cortaa|M«d to
praMblMlM ol 1 chano» to 100.000 and 1 cnanca in 1,000.000, mpactton;. VMUM to
paramnaaaa rapraaant EPA i waigm-ot-mioanca claaaitication ol tha agant at a powmtal
Human caicinogan: A * Human carcinogan; and B2 * praoaok) Human eaictoogan
(wttti aulficlant avManca in annual and naoaquata or no avidanca in numana).
NEED MORE HELP?
Super-fund Health Risk Assessment Technical Support
Center. This center provides program staff and their
contractors access to the Office of Health and
Environmental Assessment (OHEA) and other Agency
experts in the area of health risk assessment. The center is
coordinated by OHEA's Environmental Criteria and
Assessment Office in Cincinnati (513-569-7300 or FTS
684-7300); it offers technical guidance in all areas of health
risk assessment, including project scoping, sampling
methods, exposure assessment, toxicity assessment, and
risk characterization. ECAO may respond to questions
directly or refer callers to other OHEA or Agency offices.
In addition, callers may be referred initially to regional
Toxics Integration Coordinators for responses to
site-specific requests (see next section).
Highlight 9
New Documentation, Review,
and Management Tools
RPM Involvement Checklist (see Highlight
10). The checklist addresses risk information
needs and includes pointers on planning and
involvement for the RPM. Involvement of
managers in the direction and development of
the risk assessment helps to avoid serious
mistakes or costly misdirections in focus or level
of effort.
Recommended Format for a Baseline Risk
Assessment Report Consistency of
Superfund risk assessment format encourages
completeness, consistent use of results, and
allows for easier review.
Risk Assessment Reviewer's Checklist The
checklist is intended as a guide to ensure that
critical issues concerning the quality and
adequacy of risk information are not overlooked.
-------
Highlight 10
Checklist for RPM Involvement
1. Getting Organized
Ensure that the workplan for the risk assessment
contractor support is In place (If needed).
Identify EPA risk assessment support personnel (to be
used throughout the risk assessment process).
Gather relevant Information, such as appropriate
guidances and site-specific data and reports.
Identify available state, county, and other non-EPA
resources.
Prior to Special Notice, determine whether the PRPs will
be allowed to do the risk assessment
2. Before the Scoping Meeting
Make Initial contact with risk assessor.
Provide risk assessor with available guidances and site
data.
Determine (or review) data collection needs for risk
assessment, considering:
modeling parameter needs;
type and location of background samples;
alternate future land use;
possible exposure scenarios;
location(s) In ground water that will be used to
evaluate future ground-water exposures;
the preliminary identification of environmental
concerns;
strategies (including medium and location) for sample
collection appropriate to site/risk assessment needs;
statistical methods;
QA/QC measures of particular importance to risk
assessment; and
special analytical services needs.
3. At the Scoping Meeting
Present risk assessment data collection needs.
Ensure that the risk assessment data collection needs
will be considered in development of the sampling and
analysis plan.
Where limited resources require that less-than-optimal 8
sampling be conducted, discuss potential Impacts on risk
assessment results.
4. After the Scoping Meeting
Ensure that the risk assessor reviews and approves the
sampling and analysis plan.
Consult with the Agency for Toxic Substances and
Disease Registry (ATSDR) If human monitoring Is
planned.
5. During Sampling and Analysis
Ensure that risk assessment needs are being met
during sampling.
Provide risk assessor with any preliminary sampling
results so that he/she can determine if sampling
should be refocused.
Consult with ATSDR to obtain a status report on any
human monitoring that Is being conducted. Provide
any results to risk assessor.
6. During Development of Risk Assessment
Meet with risk assessor to discuss basis for excluding
chemicals from the risk assessment (and developing
the list of chemicals of potential concern). Confirm
appropriateness of excluding chemicals.
Confirm determination of alternate future land use.
Confirm locatlon(s) in ground water that will be used
to evaluate future ground-water exposures.
Understand basis for selection of pathways and
potentially exposed populations.
Facilitate discussions between risk assessor and EPA
risk assessment support personnel on the following
points:
- the use of any major exposure, fate, and transport
models (e.g., air or ground-water dispersion
models);
site-specific exposure assumptions;
non-EPA-derived toxlcity values; and
appropriate level of detail for uncertainty analysis,
and the degree to which uncertainties will be
quantified.
Discuss and approve combination of pathway risks
and hazard Indices.
Ensure that results of risk characterization have been
compared with ATSDR health assessments and any
site-specific human studies that might be available.
7. Reviewing the Risk Assessment
Allow sufficient time for review and incorporation of
comments.
Ensure that reviewers' comments are addressed.
Communicating the Risk Assessment
Plan a briefing among technical staff to discuss
significant findings and uncertainties.
Discuss development of graphics, tools, and
presentations to assist risk management decisions.
Consult with other groups (e.g., community relations
staff), as appropriate.
Brief upper management
Regional Toxics Integration Coordinators and
Headquarters Contacts. Superfund Toxics Integration
Coordinators are located in each region. Questions
regarding site-specific Superfund risk assessment issues
should be referred to the appropriate individuals listed in
Highlight 11. The Toxics Integration Branch, OERR, may
be contacted at 202-475-9486 (FTS 475-9486) for
technical information sources, availability of guidances,
and related program directives.
-------
-6-
HlghllghtH
Regional Toxics Integration Coordinators
Region Name and Address
I Sarah Levinson
Waste Management Division (HSS-CAN-7)
EPA Region I
John F. Kennedy Federal Building
Boston, MA 02203
II Peter Grevatt
Program Support Branch
ERR Division
EPA Region II
26 Federal Plaza
New York. NY 10278
III Richard Brunker
Hazardous Waste
Management Division (3HW15)
EPA Region III
841 Chestnut Street
Philadelphia, PA 19107
IV Elmer Akin
Waste Management Division
EPA Region IV
345 Courtland Street, NE
Atlanta, GA 30365
V Steve Ostrodka
Technical Support Unit (5HSM-12)
EPA Region V
230 South Dearborn Street
Chicago. IL 60604
VI Jon Rauscher
EPA Region VI (6H-SR)
First Interstate Bank Tower
1445 Ross Avenue
Dallas, TX 75202-2733
VII Superfund Branch
EPA Region VII
726 Minnesota Avenue
Kansas City. KS 66101
VIII Chris Weis
EPA Region VIII (8HWM-SR)
999 18th Street, Suite 500
Denver, CO 80202-2405
IX Gerald Hiatt
Technical Support Section (H-8-4)
Superfund Program
EPA Region IX
1235 Mission Street
San Francisco, CA 94103
X Pat Cirone
EPA Region X (ES-098)
1200 Sixth Avenue
Seattle, WA 98101
Phone Number
FTS 833-1504
617-223-5504
FTS 264-8775
212-264-6323
FTS 597-0804
215-597-0804
FTS 257-1586
404-347-1586
FTS 886-3011
312-886-3011
FTS 255-2198
214-655-2198
FTS 236-7052*
913-551-7052
FTS 330-7655
303-294-7655
FTS 484-1914
415-744-1914
FTS 399-1597
206-442-1597
*_Caller must have. FTS ,2000. Jf not .use .commercial number.
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Role of the Baseline Risk Assessment in
Superfund Remedy Selection Decisions
-------
PB91-921359
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
E OF
SOLID WASTE AND EMERGENCY RESPONSE
APR 2 2 1991
OSWER DIRECTIVE 9355.0-30
MEMORANDUM
SUBJECT: Role of the Baseline Risk Assessment in Superfund
Remedy Selection Decisions
FROM: Don R. Clay
Assistant Admlnistr
TO: Directors, Waste Management Division
Regions I, IV, V, VII, VIII
Director, Emergency and Remedial Response Division
Region II
Directors, Hazardous Waste Management Division
Regions III, VI, IX
Director, Hazardous Waste Division,
Region X
Purpose
The purpose of this memorandum is to clarify the role of the
baseline risk assessment in developing Superfund remedial
alternatives and supporting risk management decisions.
Specifically, the following points are made in the memorandum:
o Where the cumulative carcinogenic site risk to an individual
based on reasonable maximum exposure for both current and
future land use is less than 10~4, and the non-carcinogenic
hazard quotient is less than 1, action generally is not
warranted unless there are adverse environmental impacts.
However, if MCLs or non-zero MCLGs are exceeded, action
generally is warranted.
o Other chemical-specific ARARs may also be used to determine
whether a site warrants remediation.
o A risk manager may also decide that a baseline risk level
less than 10'4 is unacceptable due to site specific reasons
and that remedial action is warranted.
Printed on Recycled Paper
-------
o compliance with a chemical-specific ARAR generally will be
considered protective even if it is outside the risk range
(unless there are extenuating circumstances such as exposure
to multiple contaminants or pathways of exposure).
o The upper boundary of the risk range is not a discrete line
at 1 x 10'4, although EPA generally uses 1 x lO'4 in making
risk management decisions. A specific risk estimate around
10"4 may be considered acceptable if justified based on
site-specific conditions.
o The ROD should clearly justify the use of any non-standard
exposure factors and the need for remedial action if
baseline risks are within the generally acceptable risk
range. The ROD should also include a table listing the
final remediation goals and the corresponding risk level for
each chemical of concern.
Background
The 1990 National Contingency Plan (NCP) (55 Fed. Reg. 8665-
8865 (Mar. 8, 1990)) calls for a site-specific baseline risk
assessment to be conducted, as appropriate, as part of the
remedial investigation (Section 300.430(d)(1)). Specifically,
the NCP states that the baseline risk assessment should
"characterize the current and potential threats to human health
and the environment that may be posed by contaminants migrating
to ground water or surface water, releasing to air, leaching
through soil, remaining in the soil, and bioaccumulating in the
food chain" (Section 300.430(d) (4)) . The primary purpose of the
baseline risk assessment is to provide risk managers with an
understanding of the actual and potential risks to human health
and the environment posed by the site and any uncertainties
associated with the assessment. This information may be useful
in determining whether a current or potential threat to human
health or the environment exists that warrants remedial action.
The "Risk Assessment Guidance for Superfund: Volume I,
Human Health Evaluation Manual - Part A" (HHEM) (EPA/540/1-
89/002) provides guidance on how to conduct the human health
portion of the baseline risk assessment. Volume II of the "Risk
Assessment Guidance for Superfund" the "Environmental Evaluation
Manual" (EPA/540/1-89/001) and the companion manual, "Ecological
Assessment of Hazardous Waste Sites: A Field and Laboratory
Reference" (EPA/600/3-89/013) provide guidance on conducting the
environmental portion of the baseline risk assessment. Other
pertinent guidance includes the "Guidance for Conducting Remedial
Investigations and Feasibility Studies Under CERCLA" (RI/FS
guidance, EPA/540/G-89/004), which describes how the baseline
risk assessment fits into the overall RI/FS process. "Guidance
on Preparing Superfund Decision Documents" (ROD guidance)
-------
(EPA/624/1-87/001) provides information on how to document the
results of the baseline risk assessment in the ROD.
Objective
The objective of this memorandum is to provide further
guidance on how to use the baseline risk assessment to make risk
management decisions such as determining whether remedial action
under CERCLA Sections 104 or 106 is necessary. This memorandum
also clarifies the use of the baseline risk assessment in
selecting appropriate remedies under CERCLA Section 121, promotes
consistency in preparing site-specific risk assessments, and
helps ensure that appropriate documentation from the baseline
risk assessment is included in Superfund remedy selection
documents.
Implementation
RISKS WARRANTING REMEDIAL ACTION
Whenever there is a release or substantial threat of release
of a hazardous substance into the environment (or a release or
threat of release into the environment of a pollutant or
contaminant "which may present an imminent and substantial danger
to public health or welfare"), Section 104(a)(1) of CERCLA
provides EPA with the authority to take any response action
consistent with the National Contingency Plan it deems necessary
to protect public health or welfare or the environment. Section
106 of CERCLA grants EPA the authority to require potentially
responsible parties (or others) to perform removal or remedial
actions "when the President determines that there may be an
imminent and substantial endangerment to the public health or
welfare or the environment because of an actual or threatened
release of a hazardous substance from a facility."
As a general policy and in order to operate a unified
Superfund program, EPA generally uses the results of the baseline
risk assessment to establish the basis for taking a remedial
action using either Section 104 or 106 authority. EPA may use
the results of the baseline risk assessments to determine whether
a release or threatened release poses an unacceptable risk to
human health or the environment that warrants remedial action and
to determine if a site presents an imminent and substantial
endangerment. The risk assessment methodology for all sites
should be the same regardless of whether the RI/FS or remedial
design and remedial action is performed by EPA or potentially
responsible parties.
Generally, where the baseline risk assessment indicates that
a cumulative site risk to an individual using reasonable maximum
exposure assumptions for either current or future land use
exceeds the 10"4 lifetime excess cancer risk end of the risk
-------
range, action under CERCLA is generally warranted at the site.
For sites where the cumulative site risk to an individual based
on reasonable' maximum exposure for both current and future land
use is less than 10"4, action generally is not warranted, but may
be warranted if a chemical specific standard that defines
acceptable risk is violated or unless there are noncarcinogenic
effects or an adverse environmental impact that warrants action.
A risk manager may also decide that a lower level of risk to
human health is unacceptable and that remedial action is
warranted where, for example, there are uncertainties in the risk
assessment results. Records of Decision for remedial actions
taken at sites posing risks within the 10'4 to 10"6 risk range
must explain why remedial action is warranted.
The cumulative site baseline risk should include all media
that the reasonable maximum exposure scenario indicates are
appropriate to combine and should not assume that institutional
controls or fences will account for risk reduction. For
noncarcinogenic effects of toxicants, unacceptable risk occurs
when exposures exceed levels which represent concentrations to
which the human population, including sensitive subgroups, may be
exposed without adverse effect during a lifetime or part of a
lifetime, as appropriate to address teratogenic and developmental
effects.
Chemical specific standards that define acceptable risk
levels (e.g., non-zero MCLGs, MCLs) also may be used to determine
whether an exposure is associated with an unacceptable risk to
human health or the environment and whether remedial action under
Section 104 or 106 is warranted. For ground water actions, MCLs
and non-zero MCLGs will generally be used to gauge whether
remedial action is warranted.
EPA uses the general 10~4 to 10"6 risk range as a "target
range" within which the Agency strives to manage risks as part of
a Superfund cleanup. Once a decision has been made to take an
action, the Agency has expressed a preference for cleanups
achieving the more protective end of the range (i.e., 10'6) ,
although waste management strategies achieving reductions in site
risks anywhere within the risk range may be deemed acceptable by
the EPA risk manager. Furthermore, the upper boundary of the
risk range is not a discrete line at 1 x 10~4, although EPA
generally uses 1 x 10"4 in making risk management decisions. A
specific risk estimate around 10"4 may be considered acceptable
if justified based on site-specific conditions, including any
remaining uncertainties on the nature and extent of contamination
and associated risks. Therefore, in certain cases EPA may
consider risk estimates slightly greater than 1 x 10"4 to be
protective.
When an ARAR for a specific chemical (or in some cases a
group of chemicals) defines an acceptable level of exposure,
-------
compliance with the ARAR will generally be considered protective
even if it is outside the risk range (unless there are
extenuating circumstances such as exposure to multiple
contaminants or pathways of exposure). Conversely, in certain
situations EPA may determine that risks less than
1 x 10'fc are not sufficiently protective and warrant remedial
action.
Where current conditions have not resulted in a release
posing risks that warrant action but there is a significant
possibility that a release will occur that is likely to result in
an unacceptable risk, remedial action may also be tak=n. The
significance of the potential future release may be evaluated in
part based on the quantities of material at the site and the
environmental setting.
RISKS CONSIDERED IN RISK MANAGEMENT DECISION
As noted above, both current and reasonably likely future
risks need to be considered in order to demonstrate that a site
does not present an unacceptable risk to human health and the
environment. An adequate consideration of future risk may
necessitate the assessment of risks assuming a land use different
from that which currently exists at the site. The potential land
use associated with the highest level of exposure and risk that
can reasonably be expected to occur should be addressed in the
baseline risk assessment. Further, this land use and these
exposure assumptions should be used in developing remediation
goals.
The preamble to the NCP states that EPA will consider future
land use as residential in many cases. In general, residential
areas should be assumed to remain residential; and undeveloped
areas can be assumed to be residential in the future unless sites
are in areas where residential land use is unreasonable. Often
the exposure scenarios based on potential future residential land
use provide the greatest risk estimates (e.g., reasonable maximum
exposure scenario) and are important considerations in deciding
whether to take action (55 Fed. Reg. at 8710).
However, the NCP also states that "the assumption of future
residential land use may not be justifiable if the probability
that the site will support residential use in the future is
small." Sites that are surrounded by operating industrial
facilities can be assumed to remain as industrial areas unless
there is an indication that this is not appropriate. Other land
uses, such as recreational or agricultural, may be used, if
appropriate. When exposures based on reasonable future land use
are used to estimate risk, the NCP preamble states that the ROD
"should include a qualitative assessment of the likelihood that
the assumed future land use will occur" (55 Fed. Reg. at 8710).
-------
Unacceptable environmental risks also may prompt remedial
action and may occur where there is no significant risk to human
health. Threats or potential threats to sensitive habitats, such
as wetlands, and critical habitats of species protected under the
Endangered Species Act are especially important to consider when
determining whether to take an action under CERCLA Section 104 or
106. Ambient Water Quality Criteria for aquatic organisms are
chemical-specific standards that will generally be considered
when determining whether to take an action based on the
environmental risk of releases to surface waters.
NO-ACTION DECISIONS
If the baseline risk assessment and the comparison of
exposure concentrations to chemical-specific standards indicates
that there is no unacceptable risk to human health or the
environment and that no remedial action is warranted, then the
CERCLA Section 121 cleanup standards for selection of a Superfund
remedy, including the requirement to meet applicable or relevant
and appropriate requirements (ARARs), are not triggered. CERCLA
section 121 (a) requires only that those remedial actions that
are "determined to be necessary ... under section 104 or ... 106
... be selected in accordance with section 121." If EPA
determines that an action is necessary, the remedial action must
attain ARARs, unless a waiver is invoked. Of course, sites that
do not warrant action under CERCLA sections 104 or 106 may
warrant action under another State or Federal statute, such as
RCRA subtitle D requirements for the appropriate closure of a
solid waste landfill.
The decision not to take action at an NPL site under section
104 and 106 should also be documented in a ROD. The decision
documentation process should include the preparation of a
proposed plan for public comment, ROD and eventually a closeout
report and Federal Register deletion notice.
POINT OF DEPARTURE WHEN ACTION WARRANTED
Once remedial action has been determined to be warranted,
the results of the baseline risk assessment may be used to modify
preliminary remediation goals. These preliminary goals are
developed at scoping based on ARARs and the 10"6 cancer risk
point of departure pursuant to NCP section 300.430(e)(2)(i).
USE OF BASELINE RISK ASSESSMENT TO MODIFY PRELIMINARY REMEDIATION
GOALS
Remediation goals developed under CERCLA Section 121 are
generally medium-specific chemical concentrations that will pose
no unacceptable threat to human health and the environment.
Preliminary remediation goals are developed early in the RI/FS
process based on ARARs and other readily available information,
-------
such as concentrations associated with 10"6 cancer risk or a
hazard quotient equal to one for noncarcinogens calculated from
EPA toxicity information. These preliminary goals may be
modified based on results of the baseline risk assessment, which
clarifies exposure pathways and may identify situations where
cumulative risk of multiple contaminants or multiple exposure
pathways at the site indicate the need for more or less stringent
cleanup levels than those initially developed as preliminary
remediation goals. In addition to being modified based on the
baseline risk assessment, preliminary remediation goals and the
corresponding cleanup levels may also be modified based on the
given waste management strategy selected at the time of remedy
selection that is based on the balancing of the nine criteria
used for remedy selection (55 Fed.Reg. at 8717 and 8718).
EARLY AND INTERIM ACTIONS
Early operable unit actions (e.g., hot spot removal and
treatment) and interim actions (e.g., temporary storage or ground
water plume containment) may be taken to respond to an immediate
site threat or to take advantage of an opportunity to
significantly reduce risk quickly (55 Fed. Reg. at 8705). For
example, an interim containment action may be particularly useful
early in the process for complicated ground water remedial
actions, where concentrations greater than MCLs provide a good
indication that remediation of a potential drinking water source
is necessary'* such quick remedial action is important to prevent
further spread of the contaminant plume while a final ground
water remedy is being developed.
Early and interim action RODs do not require a completed
baseline risk assessment, although enough information must be
available to demonstrate the potential for risk and the need to
take action. Data sufficient to support the interim action
decision can be extracted from the ongoing RI/FS for the site and
set out in a focused feasibility study or other appropriate
document that includes a short analysis of a limited number of
alternatives (55 Fed. Reg. at 8704). These data should include a
summary of contaminants of concern, concentrations and relevant
exposure information. A discussion should accompany these data
explaining the need for immediate remedial action based on the
presence of contamination that, if left unaddressed in the short-
term, either contributes immediate risk or is likely to
contribute to increased site risk or degradation of the
environment/natural resources. The early and interim action RODs
should note that some exposure pathways at the site may not be
addressed by the action.
An interim action ROD eventually must be followed by a
subsequent ROD for that operable unit based on the complete
RI/FS, that includes the baseline risk assessment, in order to
document long-term protection of human health and the environment
-------
8
at that portion of the site. The interim action ROD, however,
should demonstrate qualitatively (and quantitatively if possible)
that there is a risk or potential for risk and explain how the
temporary measures selected will address a portion of this risk.
DOCUMENTATION OF BASELINE RISK ASSESSMENT RESULTS IN THE ROD
The Summary of Site Risks section of the ROD should include
a discussion of the risks associated with current and future land
use and a table presenting these risk levels for each exposure
medium (e.g., direct contact with soil by potential future
residents exposed via incidental soil ingestion and dermal
contact). In some situations, risks from exposure via more than
one medium (e.g., soil and drinking water) will affect the same
potentially exposed individual at the same time. It is
appropriate in these situations to combine the risks from the
different media to give an indication of total risk that an
individual may be exposed to from a site.
In addition to summarizing the baseline risk assessment
information, the ROD (except no-action RODs) should include how
remedial alternatives will reduce risks by achieving cleanup
levels through treatment or by eliminating exposures through
engineering controls for each contaminant of concern in each
appropriate medium.
The Comparative Analysis should include a discussion of each
of the nine criteria; consideration of risk is part of the
discussion of several of the criteria. The discussion of overall
protection of human health and the environment should include a
discussion of how the remedy will eliminate, reduce, or control
risks identified in the baseline risk assessment posed through
each pathway and whether exposure levels will be reduced to
acceptable levels. For example, if direct human contact with
contaminated soil is identified as a significant risk at a site,
the ROD (except no-action RODs) should indicate how the selected
remedy will eliminate or control exposures to ensure protection
of human health. The discussion of long-term effectiveness and
permanence should include, where appropriate, an assessment of
the residual risk from untreated residual waste remaining at the
site. The short-term effectiveness discussion should address
risks during remedial action to those on-site and nearby.
Finally, that part of the Decision Summary in the ROD that
focuses on the selected remedy should show:
o the chemical-specific remediation level and
corresponding chemical-specific risk level(s) to be
attained at the conclusion of the response action and
the points (or area) of compliance for the media being
addressed; and
-------
o The lead agency's basis for the remediation levels
(e.g., risk calculation, ARARs).
The attached table, "Remediation Levels and Corresponding Risks,"
provides a direct means of displaying this information for health
risks and, where appropriate, environmental protection (Table 1).
The table should be completed for all media for which the ROD
selects final cleanup levels. The table should serve as a
summary of text in the selected remedy section of the ROD
Decision Summary. For interim action RODs, only qualitative
statements may be possible.
Additional guidance on the baseline risk assessment and its
role in remedy selection is available from several sources. For
guidance on the baseline risk assessment contact:
David Bennett, Chief
Toxics Integration Branch (OS-230)
Hazardous Site Evaluation Division
Office of Emergency and Remedial Response
phone: (FTS) or (202) 475-9486.
For additional guidance on the interaction of the baseline risk
assessment and Superfund remedy selection, contact:
David Cooper
Remedial Operations and Guidance Branch (OS-220W)
Hazardous Site Control Division
Office of Emergency and Remedial Response
phone: (FTS) 398-8361
(commercial phone: (703) 308-8361)
For guidance on enforcement-lead sites contact:
Stephen Ells
Guidance and Evaluation Branch (OS-510)
CERCLA Enforcement Division
Office of Waste Programs Enforcement
phone: (FTS) or (202) 475-9803.
NOTICE: The policies set out in this memorandum are intended
solely as guidance. They are not intended, nor can they be
relied upon, to create any rights enforceable by any party in
litigation with the United States. EPA officials may decide to
follow the guidance provided in this memorandum, or to act at
variance with the guidance, based on an analysis of specific site
circumstances. Remedy selection decisions are made and justified
on a case-specific basis. The Agency also reserves the right to
change this guidance at any time without public notice.
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TABLE 1
Remediation Goals and Corresponding Risks a
Medium
SOIL
GROUND
WATER
SEDIMENT
Final
Remediation Levels
_ . Remediation
Chemical Level6
A
B
C
B
C
F
G
0
2.0 ppm
17.0 ppm
5.0 ppm
0. 1 ppm
4.0 ppm
7.0 ppm
15.0 ppm
100.0 ppm
Point of
Compliance f
All facility
grounds
Waste
Management
Unit
Boundary
Downstream
from point A
Basis
of Goal
HI
Risk
GWRlsk
Risk
MCL
MCLG
MCL
Ecological
Effects
WM^^^^^S^^^^&M^^>'- ^-'^r^M^MM'M^
Corresponding Risk Levels0
Chemical-Specific
Cancer
N/A
1.0 x 10 5
N/A
1.0 x 10 5
1.0 x 10 5
N/A
6.0 x 10 6
N/A
^^^^^^^^^^^3^^^^^SB^^S3B^^HB^
RMERlskd
Non-Cancer
0.5
N/A
N/A
N/A
N/A
0.2
0.09
N/A
3
1
,x
'* >
i
a. Prepare summary sheets for selected remedy.
b. Final Remediation Levels are based on preliminary remediation goals
developed In the Feasibility Study (FS) (KJ/FS Guidance 4.2.1) as modified
through the nine criteria evaluation and engineering design. In the process of
achieving remediation levels for each chemical, some chemicals will be
reduced to concentrations below their remediation levels.
c. Chemical specific risks correspond to associated remediation levels. Risks
do not consider effects of exposures to other chemicals or media. If
appropriate, risks may be summed lo calculate media specific risks.
Short term effectiveness Is not considered.
d. Cancer risks are measured as Individual Incremental lifetime: non-cancer.
as Hazard Quotients.
e. Bases for values should be explained In the earlier Record Of Decision
(ROD) table.
f. Bases for location and method for determining attainment (e.g.. maximum
value delected over area XYZ) should be explained In the description of the
selected remedy.
N/A Nol applicable
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Interim RCRA/CERCLA Guidance on
Non-Contiguous Sites and
On-Site Management of Waste and Treatment Residue
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR 2 7 1986
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
9347.0-1
MEMORANDUM
SUBJECT: Interim RCRA/CERCLA Guidance on Non-Contiguous Sites
and O-Site Management of Waste and Treatment Residue
FROM: J ^Winston Porter
Assistant Administrator
TO: Regional Administrators
Regions I - X
Region VI has recently raised several RCRA/CERCLA interface
issues that have broad implications for remedial actions at
many other Superfund sites. The purpose of this memorandum is
to lay out EPA policy on several of these issues, including:
1. Combined treatment of CERCLA waste from non-contiguous
locat ions ;
2. On-site disposal of treatment residue;
3. Limitations on the construction of hazardous waste
incinerators for on-site CERCLA use; and
4. Off-site treatment of waste and redisposal on-site.
This memorandum and attachment represent interim guidance
which should be used now, but will be refined following regional
review. Please submit your comments on this interim guidance to
Betsy Shaw ( FTS 382-3304) of the Hazardous Site Control Division,
Office of Emergency and Remedial Response by April 28, 1986. We
are particularly interested in comments which address the impli-
cations of this guidance for Superfund removal actions at both
NPL and non-NPL sites.
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9347.0-1
-2-
Select RCRA/CERCLA Issues:
1. Combined treatment and/or disposal of. CERCLA waste from
non-contiguous NPL sites
NPL sites may be combined for remedial action if the
following statutory criteria are met: the sites must be
geographically close or pose similar threats to public
health and the environment (CERCLA §104 (d)(4)). If combined
remedial actions will involve the transport of waste from
one site to another site, the wastes must be compatible for
the selected treatment or disposal method and managed in a
manner that is part of the highly reliable long-term remedy
selected for that site or group of sites. Combined remedies
must be cost-effective and should not result in any significant
additional short-term impacts on public health and the
environment at the receiving site. As in every case, CERCLA
waste which is transported must be manifested. The Record
of Decision (ROD) for a remedial action that involves more
than one site should state that several sites are being
treated as one and that their combined treatment constitutes
on-site action. (See attachment.)
2. On-site management of waste and treatment residue -
EPA interprets CERCLA to require that off-site treatment,
storage and disposal of hazardous wastes comply with all RCRA
requirements, including permitting. With respect to on-site
disposal, the National Contingency Plan (50 FR 47912,
November 20, 1985) requires that CERCLA activities meet the
technical requirements of RCRA (and other Federal environmental
requirements) that are applicable or relevant and appropriate^
while the procedural requirements, such as permitting, need
not be met.
Waste and treatment residues may be managed on-site
in several ways. The approach selected will depend on the
cost-effectiveness analysis at each site. One approach is
to remove the waste (and treat if desired) and dispose of
the waste and/or treatment residue in a new on-site land
disposal unit. This unit would meet the technical RCRA
Subtitle C land disposal requirements of 40 CFR Part 264
(e.g. S264.301 design and operating requirements; and land
disposal closure and post closure care requirements in
§264.310).
1 "Applicable requirements" are those Federal requirements that
would be legally -applicable if the response actions were not
undertaken pursuant to CERCLA §104 and §106. "Relevant and
appropriate requirements" are those Federal requirements that,
while not applicable, are designed to apply to problems
sufficiently similar to those encountered at CERCLA sites that
their application is appropriate.
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9347.0-1
-3-
The second approach allows wasta to be removed, treated
and the residuals to be replaced in the area from which they
originated. The area would then be capped and monitored
consistent with the technical requirements of land disposal
closure (§264.310). Under this approach, a double liner/
leachate collection system would not be required if the
wastes are removed during closure for the purpose of treating
them to enhance the effectiveness of the closure.
A third approach requires no further management of waste
or treatment residue if the waste can be evaluated, deter-
mined to be non-hazardous and delisted. This would normally
entail preparing a delisting analysis using the Vertical and
Horizontal Spread (VHS) model (50 FR 48886, November 27, 1985)
or other similar generic models that do not consider site
specific factors. A delisting petition is not required for
on-site CERCLA actions.
Finally, the National Contingency Plan (40 FR 47947 -
47948) provides for selection of a remedy that does not
attain applicable or relevant and appropriate requirements
if: 1) the alternative is only an interim remedy? 2) the
need to use the Fund at other sites outweighs the need to
implement a remedy that fully attains all requirements;
3) it is technically impractical to implement a remedy that
meets all applicable or relevant and appropriate requirements;
4) meeting all such requirements will result in an unacceptable
environmental impact; or 5) there is an overriding public
interest related to enforcement.
The determination that RCRA requirements for treatment,
storage and disposal will be met should be made during the
Remedial Investigation and Feasibility Study (RI/FS). In
the case of incinerator residue, a waste analysis should
be conducted during the RI to provide the necessary data.
Subsequent analyses, including a test burn, may be conducted
during Remedial Design (RD) as appropriate on a case by case
basis. Assurance of the consistency of the remedy with
RCRA and other applicable or relevant and appropriate
Federal requirements should be presented in the ROD, and,
if appropriate, reviewed again during RD.
Limitations on the construction of hazardous waste incinerators
for on-site CERCLA use
If an incinerator is to be constructed for on-site
remedial action, there should be a clear intent to dismantle
or remove the unit after the CERCLA action is completed.
Dismantling or removal should be a part of the remedy presented
in the ROD and funds should be included in the financial or
contractual documents. Should there be plans to accept
commercial waste at the facility after the CERCLA wastes have
been treated or destroyed, it is EPA policy that a RCRA
permit be obtained before the unit is constructed. (See
attachment.)
-------
9347.0-1
-4-
Off-site treatment of waste and redisposal on-site
On-site disposal may involve transport of waste off-site
for treatment or storage if the CERCLA waste or treatment
residue is ultimately disposed of at the site of waste origin.
For this activity, the CERCLA waste is manifested to and from
the site and maintained separately throughout all off-site
activities.
If you have any questions regarding this memorandum or
attachment, please call Betsy Shaw or Bill Hanson (FTS 382-2345)
Attachment
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9347.0-1
Attachment:
Interim RCRA/CERCLA Guidance on Non-Contiguous Sites
and On-Site Management of Waste and Treatment Residue
Combining Hazardous Waste Sites for Remedial Action
Background:
Several situations have arisen where it may be advantageous
to combine several NPL sites together for the purpose of conducting
a more effective remedial action. Subject to the requirements in
CERCLA §104 (d)(4), sites in proximity to one another, sites with
similar wastes, and sites with the same PRPs may be good candidates
for combined remedial actions. A treatment system or incinerator,
for example, may be more efficient treating wastes from several
sites. Expected economies of scale would lower the unit costs
and favor more reliable technologies. Overall, protection of
public health and the environment may increase if the waste of
several smaller sites are combined at a central treatment or
disposal location.
Legislative Authority; Section 104(d)(4) of CERCLA states that
non-contiguous sites may be treated as one site when the separate
sites are reasonably related on the basis of:
1) Geography; or
2) Threat or potential threat to public health and the
environment.
Cost-Effective Reasons for Combining NPL Sites for Remedial Action
Several different circumstances may occur that favor combining
site remedial actions.
Example 1: Incineration is effective for destroying wastes
at several closely arrayed sites. One alternative
is to use a mobile incinerator at each site.
Another alternative that may be cost effective is
to incinerate the wastes of several sites at one
location. The residue could be disposed at the
original site but, again, it would probably be
more cost-effective to dispose of all ash at the
same location.
Example 2: Construction of a new on-site land disposal facility
has been found to be cost effective at site A.
Wastes at nearby site B are similar in character
and a small quantity needs to be managed.
Site B wastes could be managed on-site but it
could be less expensive and more effective to
dispose of the waste at Site A.
-------
-2- 9347.0-1
Example 3: Site A and Site B have similar wastes and are
close to one another. RCRA closure with a cap
has been found to be cost effective at both
sites. It may be cost effective to design and
remediate both sites at the same time. Therefore,
the State or Region would like to contract with
one design firm and one construction company to
undertake both remedies.
Regions should identify opportunities to combine RI/FSs
for several NPL sites in the Site Management Plan or other pre-
uemedial activities. Combining RI/FSs may improve the timing
and effectiveness of remedial actions and should be shown in the
Superfund Comprehensive Accomplishments Plan (SCAP).
Criteria for Treating Non-Contiguous Sites as One
The September 21, 1984 NPL listing (40 FR 37076) provides
the flexibility to respond to several sites listed separately on
the NPL with a single response if the statutory factors are met
and it appears cost-effective to do so.
The following criteria would be used to treat non-contiguous
sites as one when transportation of the waste is involved:
1. Sites are reasonably close to one another;
2. Wastes must be compatible for the selected treatment or
disposal approach;
3. Wastes that are transported to another site need to be
managed in a manner that is part of a highly reliable,
long-term remedy;1 and
4. Incremental short-term impacts (e.g. sudden releases,
fugitive dust and fumes) to public health and the
environment at the receiving site will be minimal.
(This factor is important when the receiving site is
located near a residential community.)
Of course, the remedy must also be cost-effective by either
costing less or by providing increased or more reliable protection
of public health and environment than two separate remedies.
When short-term impacts are found to be significant, combining
sites may be determined to be inappropriate and the remedy may
be reconfigured. Options include but are not limited to:
This type of remedy generally is defined as:
a. Requiring little or no long-term active 0/M;
b. Relatively low probability of release to the environment;
c. If a release did occur, it would not endanger public
health or the environment.
-------
-3-
1. Use another hazardous waste site where there would be
fewer impacts;
2. Pretreat wastes at the original site locations
(e.g., metal extraction) or improve materials handling
procedures;
3. Dispose of treated residuals (e.g., incineration ash)
at originating sites.
If incremental short-term impacts are significant and cannot be
mitigated, then non-contiguous sites should not be treated as one
for the purpose of combined treatment or disposal regardless of
cost-effectiveness.
CERCLA Compliance with Other Environmental Laws
Under response actions occuring at non-contiguous sites which
are treated as on-site actions, Superfund or PRPs under an EPA
approved enforcement action would:
1. Manifest hazardous wastes transported to another
site;
2. Meet the applicable or relevant and appropriate technical
requirements of RCRA TSD facilities but would not be
required to obtain RCRA permits.
Limitation: The cost of dismantling or removing a treatment or
storage unit constructed as part of an on-site
remedy should be factored into the determination of
the cost-effectiveness of that remedy. If that
alternative is selected, funds for the dismantling of
the unit should be included in the remedy obligation.
Should there be plans for a treatment or storage
unit constructed as part of an on-site remedy to
accept commercial wastes after the CERCLA waste has
been processed, it is EPA policy that a RCRA permit
be obtained before the unit is constructed. The
cost and scheduling implications of obtaining a
permit should also be factored into the analysis of
cost-effectiveness.
Proposed Implementation Process;
1. Initial evaluation of NPL sites to determine if the
RI/FSs of several sites should be combined. Show
combined RI/FSs on SCAP.
2. Feasibility Study recommends that a combined site action
would be cost-effective. Further, the Feasibility Study
shows that the selected remedy meets the necessary criteria
of this policy. (The NPL need not be amended.)
-------
9347.0-1
-4-
3. A joint public comment period is held to .seek comment
from all interested parties on the proposed consolidation
of sites and a responsiveness summary is written.
4. Regional Administrator or Assistant Administrator signs
Record of Decision for non-contiguous site action.
5. A new Record of Decision, public comment period and
responsiveness summary would be required if additional
sites are added to the response plan after the first
Record of Decision.
-------
NATIONAL PRIORITIES LIST
CHECKLIST OF DATA REQUIREMENTS
Site Name
Notes:
DATA ELEMENT/PATHWAY
Available
Not
Appropriate
Ground and Surface Water and Air
T^Waste physicalstate
2. Persistence
3. Toxicity
4. Quantity
Ground Water
TTMonitoring data OR
la. Depth of aquifer
Ib. Net precipitation
Ic. Permeability
2. Ground water use
3. Distance to nearest down-
gradient well
4. Population served by wells
within 3 miles
Surface Water
TTMonitoring data OR
la. Slope and terrain
Ib. Rainfall intensity
Ic. Distance to surface water
Id. Flood potential
Surface water use
Critical habitats
Population served
2.
3.
4.
Air
2,
3,
4,
5,
6.
7,
8,
Monitoring data
Waste reactivity
Incompatibility
Toxicity
Distance to nearest
Population within 1
population
mile
Critical
Land use
environments
-------
A Guide to Delisting of RCRA
Wastes for Superfund Remedial Responses
-------
EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Superfund Publication:
9347.3-09FS
September 1990
A Guide to Delisting
of RCRA Wastes for
Superfund Remedial Responses
Office of Emergency and Remedial Response
Hazardous Site Control Division OS-220
Quick Reference Fact Sheet
On-sitc CERCLA remedial response actions must comply with the substantive requirements of the Resource Conservation
and Recovery Act (RCRA) when they are determined to be applicable or relevant and appropriate requirements (ARARs). RCRA
requirements are applicable for CERCLA responses involving the treatment, storage, or disposal of RCRA wastes (or when disposal
of the waste being addressed under CERCLA occurred after November 19, 1980). Delisting a RCRA waste (and thus removing
it from regulation under RCRA Subtitle C) is one option available to site managers for addressing wastes or treatment residuals
containing hazardous constituents in low concentrations (i.e., at or near health-based levels). This guide discusses the circumstances
under which delisting wastes may be appropriate and the procedures for delisting a RCRA hazardous waste as part of a
Superfund remedial response. (For additional information, please see Petitions to Delist Hazardous Wastes: A Guidance Manual
(Office of Solid Waste and Emergency Response, April 1985 EPA/530-SW-85-003).)
BACKGROUND
There are two types of RCRA waste that are subject to
RCRA Subtitle C hazardous waste requirements: listed and
characteristic. Listed wastes are regulated under Subtitle C
until they have been delisted, at which time they may be
disposed of in a Subtitle D facility. Delisting requires a
demonstration that a listed RCRA hazardous waste, or a
mixture containing listed hazardous wastes, no longer meets
any of the criteria under which the waste was listed and no
other factors are known that would make the waste
hazardous. Delisting applies only to listed wastes, mixtures
containing listed wastes, or residuals derived from treatment
of a listed waste. Characteristic hazardous wastes do not have
to be delisted in order to be eligible for management in a
Subtitle D facility, but may simply be rendered "non-
characteristic" (i.e., treated to no longer exhibit any of the
characteristics outlined in 40 CFR Part 261, Subpart C), or
meet the Land Disposal Restriction (LDR) treatment
standards.
For on-site CERCLA remedial response actions, delisting
of RCRA wastes is accomplished by incorporating the
substantive requirements of 40 CFR 260.20 and .22 into the
remedial process. For off-site CERCLA response actions, the
administrative requirements of 40 CFR 260.20 and .22 must
also be met.
WHEN TO CONSIDER DELISTING
Site managers may want to consider delisting when
planning CERCLA response actions that will address
materials contaminated with RCRA listed waste in low
concentrations (including treatment residuals that, despite
treatment, remain listed wastes under the derived-from rule
[40 CFR 261.3(c)(2)]). If site managers believe that these
materials pose no significant threat to ground water and that
management in a Subtitle D solid waste disposal facility (to
prevent direct contact) would be fully protective of human
health and the environment, delisting as a potential option
should be evaluated. Unless listed wastes can be delisted,
management of these materials must be in accordance with
Subtitle C (i.e., clean closure or landfill closure with an
impermeable cap, or a hybrid closure where RCRA closure
requirements are relevant and appropriate).
BASIS FOR DELISTING
Under RCRA, once sufficient data are collected on the
waste, and its potential fate and transport, models (see
Highlight 1) are run to evaluate the dilution and attenuation
of constituents at a hypothetical receptor well. The calculated
concentrations of constituents at the hypothetical receptor
well must at least meet the health-based levels used for
delisting decisions for the waste to be successfully delisted.
(Table 1, inserted in this fact sheet, contains the maximum
allowed concentrations (MACs) for specific constituents based
on the current health-based levels (10"6 risk) developed by the
Office of Solid Waste for delisting decisions.)
During site characterization and the development of the
baseline risk assessment, if analyses indicate that minimal risks
are posed by identified RCRA listed wastes, (i.e., they are
already at or near delisting levels) site managers should
consider management options involving the delisting of wastes.
Delisting evaluations should be made early in the RI/FS
process, thus allowing the requirements and disposal options
associated with delisting to be factored into the detailed
analysis of remedial alternatives. For delistings at CERCLA
sites, OERR recommends that site managers use the same
-------
Highlight 1 - MODELS USED BY THE OFFICE OF SOLID WASTE TO JUSTIFY DEUSTING PETITIONS
The recently promulgated tcodcity characteristic leaching procedure (TCLP) is used to measure the leaching
potential of selected inorganic and organic constituents (55 FR 11798, March 29, 1990). For some organics, the Organic
Leachate Model (OLM) (see 51 FR 41084-100, November 13, 1986) may be used to estimate the leaching potential of
these constituents. The OLM is based on data from leaching tests performed on wastes with organics. Data generated
from the TCLP (and possibly the OLM) are used in the appropriate models to determine whether the waste will pose a
threat to human health and the environment.
EPA uses an appropriate model, such as the VHS model, to estimate the ability of an aquifer to dilute the
leachate toxicants and predict toxicant levels at a receptor well. (See 50 FR 48846, November 27, 1985 for a complete
description of the VHS model.) The predicted levels of toxicants from the VHS model are then compared to health-
based levels used in delisting decision-making (e.g., MCLs, RfDs) for those compounds, in an effort to evaluate hazard
potential.
analytical tests and models as the Office of Solid Waste to
analyze and predict the potential fate and transport of waste
constituents and to substantiate a delisting request.
In certain cases, pathways other than ground water may
present a greater concern, or site conditions are such that use
of other or additional models (e.g., air models, 51 FR 41084,
November 13, 1986) may be appropriate. Because the
delisting determination is waste-specific, site managers should
document why a particular model is being used.
If results from treatability studies conducted during an
RI/FS indicate that treatment will attain delisting levels, these
data may serve as the basis for approving a delisting
demonstration. When site-specific treatability study data are
not available, data from the application of technologies to
similar wastes may be used to assess the likely effectiveness of
the treatment processes and to demonstrate that a particular
waste would be rendered non-hazardous and justify a
delisting. If there are technically sound reasons to believe
that delisting levels can be attained, site managers still may
seek to delist the wastes, but should specify another option
for disposal of the material (i.e., Subtitle C disposal) if
delistable levels are not attained.
As outlined in the NCP (55 FR 8756, March 8, 1990),
only the substantive requirements of delisting must be met for
on-site CERCLA responses. The delisting may be granted
when the Regional Administrator signs the ROD. For off-site
actions, the Office of Solid Waste and Emergency Response
(Contact: Assistance Branch (OS-343) 382-4206) makes
delisting decisions. The formal RCRA administrative process
for delisting would not apply, however, to non-contiguous
CERCLA facilities meeting the criteria to be treated as one
site and to which the on-site permit exemption extends (see
NCP, 55 FR 8690-1, March 8, 1990).
DEMONSTRATING COMPLIANCE
Verification testing may be required following treatment
of the wastes to confirm that delisting levels are attained.
Verification testing may require: collection of samples
generated from treatment systems; analysis of samples for
total and TCLP leachate concentrations of inorganic and
organic constituents, and any other RCRA characteristics (as
appropriate)1; and analysis of any other information relevant
to the delisting that may not have been anticipated at the
time that the original decision document was signed. The
specific demonstrations required may vary based on process-
or waste-specific conditions at the site. [NOTE: An
appropriate testing frequency of treatment residuals will need
to be established during the design phase for a period long
enough to represent the variability of the delisted material.]
All data from verification testing must be collected using the
appropriate QA/QC procedures (such as those contained in
the site's Quality Assurance Project Plan (QAPP) prepared
during the RI/FS scoping or remedial design process).
Waste to be delisted must be managed as hazardous until
it has been analyzed in accordance with the sampling and
analysis requirements established at the time of delisting, and
it has been determined that delisting levels have been
attained. Therefore, temporary storage of waste residuals will
be necessary in some cases until sampling results are received.
RCRA storage requirements that are ARAR must be met
(or a waiver justified) during this period for remedial actions.
DOCUMENTING A WASTE DELISTING
Although compliance with the RCRA administrative
delisting requirements are not required as part of an on-site
CERCLA remedial response, compliance with the substantive
requirements of delisting must be documented in the
appropriate CERCLA documents. Since off-site CERCLA
responses must comply with both substantive and
administrative requirements, site managers must follow the
formal delisting petition process (40 CFR 260.20 and .22)
when hazardous wastes or waste residuals are to be delisted
for management off-site. This includes Office of Solid Waste
review, or State review for those States that have adopted the
delisting program at least equivalent to the Federal program,
publication of a proposed notice in the Federal Register, an
opportunity for public comment, and publication of the final
rule in the Federal Register. The Office of Solid Waste's goal
'Note that for any responses expected to take place prior to the
TCLP effective date, the EP Toxicity test may apply.
-------
Table 1: Maximum Allowed Concentration*
Maximum allowed concentrations (MACs) are back-calculated from the VHS model, using a minimum waste volume of 8000 cubic yards. (Lower waste volumee will result In higher MACs. If
the waste contains <0.5% solids, then the leaching procedures cannot be performed. In that case, the total constituent concentrations should be compared to the MACs. These MACs represent the
maximum concentrations below which a constituent would 'pass1 the VHS model, and thus, the waste would be considered a candidate for delisting. These MACs are to be used only as guidance for
delisting, not for cleanup levels.
The MACs listed here are based on use of the VHS model and the current health-based levels used for delisting decision-making. If a different model Is used and/or if a health-based level
changes, then the calculated MAC will also change. The MACs listed here for organic constituents are based on OLM leachate values. In the near future, petitioners may be required to measure
organic constituent leaching using the TCLP. (Thus, TCLP leachate data will replace OLM calculated data In the VHS model.) Therefore, if the TCLP Is used in place of the OLM for organic
constituents, then the TCLP leachate value would be compared to the MAC level listed in the table for liquids.
The numbers shown In the table are given in exponential form. The notation XE+YY is equivalent to X x 10*". For example:
5.170E+02 is equivalent to 5.170 x 10* or 517.0
3.785E-04 is equivalent to 3.785 X 1CT4 or .0003785.
Chemical
MAC for MAC for
Solids (ppm) Liquids (mg/L) Chemical
MAC for MAC for
Solid* (ppm) Liquids (mg/L) Chemical
MAC for MAC for
Solids (ppm) Liquid* (mg/L)
Acetone 5.170Et02 2.624E+01
Acetonltrile 0.231 E+00 1.262E+00
Acetophenona 9.049E+03 2.624E+01
Acrolein 1.181E+00 3.15E+00
Acrytamide Treat Tech Treat Tech
Acrylic Acid 3.382E+02 1.893E+01
Acrylonitrilo 3.786E-04 3.785E-04
Aldicarb 1 .253E+00 6.309E-02
Aldrin 1.3B1E-O3 1.262E-OS
Ally! Alcohol 9.025E+00 1.262E+00
Aluminum Phosphide 6.309E-O2 6.309E-02
Aniline 2.236E-01 3.785E-02
Anthracene 7.701 E+Oi 1.2«2E~02
Antimony 6.309E-02 8.309E-02
Afsenlo 3,t5SE-01 3.1S5E-01
Barium 8.309E+00 8.309E+00
Benzene «.87aE-<» 3.1S5E-02
Benzidine 1.282E-06 1.262E-06
Beflz{*^niitr*bM1« 8.B80E-W fl.309E-OS
Benzo(a)pyrene 3.8B7E-02 1.893E-05
Benzo(b)fluoranthene 1.043E-01 1.282E-04
Benzo(k)fluoranthene 7.790E+02 2.524E-02
Benzyl enlodlk , S.432E-03 1.262E-03
Bls(2-chloroethyl)ether 1.893E-04 1.893E-04
Bl^-ohforofeopropyl ether) 2.234E+03 8.309E+00
Bis(2-ethylhexyl)phthalate 4.210E+01 1.893E-02
Bromodichloromelhano 7.S46E+02 4.416E+00
Bromomethane 3.606E+01 3.155E-01
Butyl benzyl phthalate 6.376E+04 6.678 E+00
2-sec-Butyl-4,6-dinltrophenol 1.348E+02 2.524E-01
Cadmium 8.3WE-02 6.309E-02
Carbon disulflde 1.277E+04 2.524E+01
Carbon tatrachloride 1.408E+00 3.1S5E-02
Chloral 2.840E+00 4.416E-01
Chlordane 1.924E+01 1.262E-02
p-Chloraniline 4.741 E+01 6.309E-01
Chlorobenzene 1.826E+02 6.309E-01
Chlorobenzilate 4.312E+02 4.416E+00
p-Chlorc-m-cr««ol 1.8»E+02 1.2e2EH»
Chlorodibromomethane 7.825E+02 4.416E+00
Chloroform 4.968E-01 3.78SE-02
Chloromethyl methyl ether Decomposes 2.524E-05
2-Chlorophenol 4.412E+01 1.202E+00
Chromium 3.155E-01 3.155E-01
ChrytenB 1.8ieE+01 1.2«2EH»
Cresols 1.257E+03 1.262E+01
Cyanide 4.418E+00 4.418E+00
Cyanogen 1.435E+02 8.309E+00
Cyanogen bromide 1.B93E+01 1.893E+01 .
2,4-Dichlorophenoxyacetlc
acid(2,4-D) 1.069E+02 6.309E-01
ODD S.982E-01 8.309E-04
DDE 9.902E-01 6.309E-04
DDT 3.109E+00 8.309E-04
Dibenz(a,h)acridine 8.5S4E-02 1.893E-05
Dibenz(a,h)anthracene 7.318E-03 4.416E-08
1 ,2-Dibromo-3-chloropropan 1.048E-02 1.262E-03
Di-n-butyl phthalate 2.521 E+OS 2.624E+Q1
J,2-DJohlorobenzene 4.999E+03 3.7SSS-HM
1,3-Dichlorobenzene 4.790E+04 1.893E+00
l,4-DichlDfobBnrBn9 2.6SOE402 4.732E-01
3.3'-Dlchlofobenzldine 5.656E-02 5.047E-04
DichlorodifluorOmethane 1.063E+05 4.416E+01
1,1-Dichloroethane 1.140E-02 2.S24E-03
1,2-Dichlor<*thane 3.717E-01 3.155E-02
1.1-Dichloroethylene 1.270E+00 4.416E-02
ci»-l^-DJc}ilofO«hyten8 2.tt73E+01 4.416E-01
trans-1,2-Dlchloroethytene 3.641 E+01 6.309E-01
DIctilOrom9th»n« 2.324E-01 3.1SSEHJZ
2,4-Dichlorophenol 4.329E+01 6.309E-01
1^-DiBhlDfOprop«ne «.fl98Ew01 3.tSSEH)2
1,3-Dichloropropene 5.946E-03 1.262E-03
DfeWrin , 1^82B-03 IJM2&4S
Dlethyl phthalate 4.795E+05 1.893E+02
DiM«(h(»t* 3.377&<11 4.41«E-02
7,12-0)m«thyn>«ni(i)MthrM.n. 3.743E-03 8.309E-08
2/4^»«)«>yfph»fw< . . ..i^«e««i I^BHM
2,8-Dlmethylphenol 2.829E-01 1.262E-02
3,4-Dftnethylphenol 1.224E+01 2.S24E-02
Dimethyl phthalate 9.232E+06 2.624E+03
Dinltrobenzene(rneta) 1.317E+M 2,S24E-<2
4,6-Dlnitro-o-cresol 5.127E+01 2.524E-01
2,4-^inltrOph«nOl 2.296E+01 4.418EH51
Dinitrotoluene 1.164E-03 3.155E-04
Di-n-octyt phthalate 3.441 E+04 3.785E+00
1,4-Dioxane 2.021 E-02 1.893E-02
Diphenylamlne 1.232E+04 6.C78E+00
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Table 1: Maximum Allowed Concentrations (cent)
Chemical
MAC tor MAC for
Solids (ppm) Liquids (mg/L) Chemical
MAC for MAC for
Solids (ppm) Liquids (mg/L) Chemical
MAC far
Solid* (ppm)
MAC for
Liquid. (mg/L)
1.2-Oiphenylhydrazine 6.976E-04 2.524E-04
OtSUlfoton 8,691 6-01 6<309E-03
Endosulfan 1.983E+01 1.262E-02
Endrlrv 1.004E+00 1.262E-03
Epichlorohydrln
(1-Chloro-2,3-epoxypfOpane) Treat. Tech Treat. Tech
Ethyftienzene 4,9846+03 4,4186+00
Ethyl ether 2.598E+04 1.262E+02
Ethyten3 2.524E-OS
Thallium 1.893E-02 1.893E-02
Thl«ire« -(MS&W l.jeaEHW
Thiram 1.918E+03 1.2S2E+00
Tomen» 1,1786+04 1.262E*
-------
is to propose and finalize delistings within 24 months from the
time a complete petition is received.
RI/FS Report
The substantive requirements for delisting a RCRA
hazardous waste should be documented in the RI/FS Report.
In the Detailed Analysis of Alternatives chapter of the FS
Report, a general discussion of why delisting is warranted
should be included in the description of each alternative for
which a delisting is contemplated. Where the remedial
alternatives involving treatment are expected to result in a
residual that may be delisted, this discussion should also
specify the concentrations of each waste constituent expected
to remain after treatment. The specific information that
should be included in an RI/FS report for on-site and off-site
CERCLA remedial actions is presented in Highlight 2. (The
more specific and detailed information, such as relevant waste
analysis data from sampling, should be placed in an appendix
to the report.) Under the "Compliance with ARARs"
Criterion, as part of the Description of Alternatives section,
site managers should identify those wastes or waste residuals
to be delisted, and managed under Subtitle D instead of
Subtitle C.
Proposed Plan
The intent to delist wastes should be stated in the
Description of Alternatives section of the Proposed Plan.
Because the Proposed Plan solicits public comment on all of
the remedial alternatives, and not just the preferred option,
the intent to delist wastes on-site or to obtain a delisting
petition for off-site wastes should be identified for all
alternatives for which such an approach is planned. This
opportunity for public comment on the Proposed Plan fulfills
the requirements for public notice and comment on delisting
petitions required under 40 CFR 260.20(d). Highlight 3
provides sample language for the Proposed Plan.
Record of Decision
Sample language for the Description of Alternatives
section of the ROD is shown in Highlight 4. The
documentation provided in the ROD should be a brief
synopsis of the information in the FS report. In the
Description of Alternatives section, as part of the discussion
of major ARARs for each remedial alternative, site managers
should include a statement (as was done in the FS report)
that explains why delisting is justified. A statement should
Highlight 2 - DOCUMENTATION FOR RI/FS REPORT FOR DELISTING
(Detailed Analysis of Alternatives Chapter)
ON-SITE:
Description of Remedial Alternatives
Detailed Description of the Treatment Process being used to render the waste non-hazardous (e.g., operating parameters)
Waste and Treatment Residual Characterization
- EPA Hazardous Waste Number(s)
- Complete Description of the Waste (e.g., matrix, percent solids, pH)
- Waste Management Information (e.g., current and proposed management, techniques, flow diagrams)
- Description of Constituents present (identification, concentrations)
Relevant Sampling and Testing Information1 (e.g., TCLP test results)
Data on Representative Samples for the Listed Constituents and a Discussion of Why the Waste is Non-Hazardous. Include
a statement that the samples are representative of constituent concentrations in the waste, and discuss modelling results.
CERCLA on-site response actions need not meet administrative procedures of other environmental statutes. The RI/FS and
ROD process are substitutes for the administrative procedures in the delisting process. The substantive requirements remain
the same (55 FR 8756 -57, March 8, 1990).
OFF-SITE (in addition to elements required for off-site petition):
For off-site delisting petitions, the documentation requirements listed for on-site actions should be extracted from the RI/FS
report and combined with the following information found below. The information should be incorporated with the on-site information
into a 40 CFR 260.20 petition and a copy of the petition should be referenced and attached to the RI/FS report.
Petitioner's name and address
- Identification of on-site contact person, if different from above
- Description and location of site
- Statement of the petitioner's interest in the proposed action
1 Appropriate sampling information may be contained in the Superfund Quality Assurance Project Plan (QAPP) and, therefore, not
specifically repeated in the RI/FS Report. Where appropriate, however, information on relevant sampling procedures should be
referenced in this section when discussing the basis for delisting.
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Highlights: SAMPLE LANGUAGE
FOR THE PROPOSED PLAN
Description of Alternatives section:
Under this alternative, the [waste/treatment
residuals] will be delated (Le., shown to be non-
hazardous wastes) and thus will no longer be subject to
RCRA Subtitle C hazardous waste regulations. The
[wastes/treatment residuals] will be managed in
accordance with the RCRA Subtitle D (solid waste)
requirements (and/or state solid waste disposal
requirements).
Evaluation of Alternatives section, under "Compliance
With ARARs":
The [wastes/treatment residuals] will be
delisted in (Enter number] of [Enter total number of
alternatives]. The RCRA Subtitle D (solid waste)
closure requirements, rather than Subtitle C
requirements, will be ARARs for these [wastes/treatment
residuals].
Community's Role in Selection Process:
The Proposed Plan seeks comment on the
delisting of the [waste/treatment residuals and models]
for each alternative for which delisting is proposed.
also be included explaining that the waste was delisted under
CERCLA, therefore RCRA's substantive requirements have
been met.
In the Statutory Determinations section, under the
"Compliance with ARARs" rinding, site managers should
indicate that the wastes will be delisted.
Unless treatability studies conducted in the RI/FS indicate
that a technology's performance is reasonably certain, the
ROD should address how to handle wastes that do not
achieve delistable levels. If waste residuals cannot be delisted,
a contingency plan will be implemented. Where the
contingency implemented differs significantly from that
Highlight 4: SAMPLE LANGUAGE
FOR THE RECORD OF DECISION
Description of Alternatives section:
Because existing and available data and the
results of modeling demonstrate that the [waste/treatment
residuals] will not be hazardous (Le., do not contain
hazardous constituents in levels that are hazardous and
do not exhibit a hazardous characteristic), they win be
delisted. Therefore, the RCRA Subtitle C requirements
are not ARARs. These [wastes/treatment residuals],
however, will be managed as solid wastes under RCRA
Subtitle D [and State of {name} solid waste disposal
requirements under {citation}]. This delisting is justified
on the basis of [results from treatability testing/other
basis]. This delisting satisfies the substantive
requirements of 40 CFR 260.20 and .22.
If testing of the waste during the remedial
action shows that the necessary levels are not being
attained for delisting these wastes, they will be managed
as Subtitle C hazardous wastes and the applicable or
relevant and appropriate requirements under Subtitle C
will be met.
discussed in the ROD, the ROD must be amended or an
Explanation of Significant Differences (BSD) issued (NCP
§300.435(c)(2)). Where the contingency implemented does
not significantly differ from that discussed in the ROD, it may
be advisable to issue an ESD or fact sheet to inform the
public of these actions.
The Comparative Analysis section of the ROD should
discuss contingent remedies in a level of detail that is
adequate to explain the contingency (so that the public has an
ample opportunity to review the contingency). The Selected
Remedy section should establish the parameters of both the
selected and contingent remedies and provide the criteria by
which the contingency remedy would be implemented. The
Statutory Determinations section should demonstrate how
either remedy would fulfill CERCLA section 121
requirements.
NOTICE: The policies set out in this memorandum are intended solely as guidance. They are not intended, nor can they
be relied upon, to create any rights enforceable by any party in litigation with the United States. EPA officials may decide to
follow the guidance provided in this memorandum, or to act at variance with the guidance, based on an analysis of specific
site circumstances. The Agency also reserves the right to change this guidance any time without public notice.
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CERCLA Compliance with Other Laws Manual,
RCRA ARARs: Focus on Closure Requirements
-------
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Directive 9234.2-04FS
October 1989
CERCLA Compliance with Other Laws Manual
RCRA ARARs:
Focus on Closure Requirements
The Superfund Amendments and Reauthorization Act of 1986 (SARA) adopts and expands a provision in the
1985 National Contingency Plan (NCP) that remedial actions must at least attain applicable or relevant and
appropriate requirements (ARARs). Section 121(d) of CERCLA, as amended by SARA, requires attainment of
Federal ARARs and of State ARARs in State environmental or facility siting laws when the State requirements
are promulgated, more stringent than Federal laws, and identified by the State in a timely manner.
To implement the ARARs provision, EPA has developed guidance, CERCLA Compliance with Other Laws
Manual: Parts 1 and II (OSWER Directives 9234.1-01 and 9234.1-02, respectively). EPA is preparing a series of
short Fact Sheets (OSWER Directive 9234.2 series) that summarize the guidance documents. This particular Fact
Sheet addresses compliance with Subtitle C of the Resource Conservation and Recovery Act (RCRA), as amended
by the Hazardous and Solid Waste Amendments of 1984 (HSWA), with a focus on the RCRA Subtitle C closure
requirements. This Fact Sheet is based on policies in the proposed December 21, 1988 revisions to the NCP. The
final NCP may adopt policies different from those covered here and, when promulgated, should be considered the
authoritative source.
I. AN OVERVIEW OF RCRA SUBTITLE C ARARS
The provisions of Subtitle C of RCRA mandate
"cradle-to-grave" management of hazardous waste, and
regulate three types of hazardous waste handlers: (1)
generators; (2) transporters; and (3) owners and
operators of treatment, storage, or disposal facilities
(TSDFs). Although there are RCRA requirements for
generators and transporters of hazardous waste, the
most extensive RCRA requirements are those for the
design, operation, and closure of hazardous waste
TSDFs (40 CFR Part 264). Highlight 1 shows the
types of hazardous waste management units regulated
under Subtitle C.
RCRA Subtitle. C requirements for TSDFs will
frequently be ARARs for CERCLA actions, because
RCRA regulates the same or similar wastes as those
found at many CERCLA sites, covers many of the
same activities, and addresses releases and threatened
releases similar to those found at CERCLA sites.
When RCRA requirements are ARARs, only the
substantive requirements of RCRA must be met if a
CERCLA action is to be conducted on site. On-site
actions do not require RCRA permits, nor is
compliance with administrative requirements necessary
for on-site actions. CERCLA actions to be conducted
off site, however, must comply with both substantive
and administrative RCRA requirements (see Highlight
2 on the next page).
Highlight 1: KEY SECTIONS OF RCRA
SUBTITLED
S»lld Waatr
SUBTITLE C
H«r«rrfoi» VrtaU
SOBTTTLtl
Part 264 - Treatment, Storage,
and Disposal Facility Requirements
Subpart F - Ground-water Protection
Subpart G - CkMurc and Poat-Clo*ure
Subpart I - Coouuvcn
Subpart J - Tank*
Subpart K - Surface Impound menu
Subpan L - Wane Pile*
Subpart M - Land Treatment
Subpart N - Landfill*
Subparl O - Incinerator*
Subpan X - Mucelianeou* Unju
Part 268 - Land Disposal Restrictions
Printed on Recycled Paper
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Highlight 2: SUBSTANTIVE AND
ADMINISTRATIVE REQUIREMENTS
Substantive Requirements are those
requirements that pertain directly to actions
or conditions in the environment. Examples
include performance standards for
incinerators (40 CFR 264.343), treatment
standards for land disposal of restricted waste
(40 CFR 268), and concentration limits, such
as MCLs.
Administrative Requirements are those
mechanisms that facilitate the implementation
of the substantive requirements of a statute
or regulation. Examples include the
requirements for preparing a contingency
plan, submitting a petition to delist a listed
hazardous waste, recordkeeping. and
consultations.
A. WHEN RCRA IS APPLICABLE
RCRA Subtitle C requirements for the treatment,
storage, and disposal of hazardous waste are applicable
for a Superfund remedial action if the following
conditions are met:
The waste is a RCRA hazardous waste, and either:
The waste was initially treated, stored, or disposed
of after the effective date of the particular RCRA
requirement, or
The activity at the CERCLA site constitutes
treatment, storage, or disposal, as defined by
RCRA.
I. When a CERCLA Waste is a RCRA Hazardous
Waste
In order for RCRA requirements to be applicable,
a Superfund waste must be determined to be a listed
or characteristic hazardous waste under RCRA (see
Highlights 3a and 3b for the definition of RCRA
hazardous waste). A waste that is hazardous because
it once exhibited a characteristic (or media containing
a characteristic waste) will not be subject to Subtitle
C regulation if it no longer exhibits the characteristic,
A listed waste may be delisted if it can be shown that
the specific waste is not hazardous based on the
standards in 40 CFR 264.22. If such a waste will be
shipped off site, it must be delisted through a
rulemaking process. However, to delist a RCRA
hazardous waste that will remain on site at a
Superfund site, only'the substantive requirements for
delisting must be met (see "ARARs Q's and A's,"
OSWER Directive 9234.2-01FS, May 1989).
Highlight 3a: CHARACTERISTIC RCRA
HAZARDOUS WASTES
(Subpart C of 40 CFR Part 261)
Ignitability - i.e.. a waste with a flash point
lower than 140 F;
Corrosivity - i.e., a waste with a pH less
than or equal to 2.0 or greater than or equal
to 12.5, or capable of corroding steel at a
rate of more than 0.25 inches per year;
Reactivity - i.e., a waste that is explosive.
reacts violently with water, or generates toxic
gases when exposed to water or liquids that
are moderately acidic or alkaline; and
Extraction Procedure (EP) Toxicity* - i.e.,
a waste for which the EP test extract
contains a concentration of a specified
contaminant above its regulatory threshold.
"A final rulemaking is underway that will replace the EP test
with the Toxicity Characteristic Leaching Procedure (TCLP).
Promulgation is expected in 1990.
Highlight 3b: LISTED RCRA
HAZARDOUS WASTES
(Subpart D of 40 CFR Part 261)
F Waste Codes (Part 261.31) - wastes from
non-specific sources (e.g., F001 - F005 spent
solvents);
K Waste Codes (Part 261.32)-wastes from
specific sources (e.g., K001 wastewater
treatment sludge from wood preserving
processes);
P Waste Codes (Part 261.33(e)) - acutely
hazardous commercial chemical products;* and
U Waste Codes (Part 261.34(f))-toxic
commercial chemical products.*
In addition, any solid waste derived from the treatment,
storage, or disposal of a listed waste, and any mixture of solid
waste and listed waste is a RCRA hazardous waste
(regardless of the concentration of hazardous constituents or
the percentage of listed wastes in such a mixture).
"NOTE. The word "product" refers to a commercially pure or
technical grade of the chemical. A material docs not qualify as a
product simply because it is a process waste.
-2-
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Any environmental media (i.e., soil or ground
water) contaminated with a listed waste is not a
hazardous* waste, but must be managed as such until
it no longer contains the listed waste, generally when
constituents from the listed waste are at health-based
levels. Delisting is not required.
To determine whether a waste is a listed waste
under RCRA, it is often necessary to know the source
of that waste. For any Superfund site, if an
affirmative determination cannot be made that the
contamination is a RCRA hazardous waste, RCRA
requirements will not be applicable. A determination
of whether a waste is a characteristic waste can be
based on testing the waste. Alternatively, best
professional judgment (based on knowledge of the
waste and its constituents) can be used to determine
whether testing is necessary.
2. When the Date of Initial Disposal Triggers
RCRA Applicability
A RCRA requirement will be applicable if the
hazardous waste was treated, stored, or disposed of
after the effective date of the particular requirement.
The RCRA Subtitle C regulations that established the
hazardous waste management system first became
effective on November 19, 1980. RCRA regulations
will not be applicable to wastes disposed of before
that date, unless the CERCLA action itself constitutes
treatment, storage, or disposal (see below). Additional
standards have been issued since 1980; therefore,
applicable requirements may vary somewhat, depending
on the specific date on which the waste was disposed.
3. When Superfund Activities Trigger RCRA
Applicability
RCRA requirements for hazardous wastes will
also be applicable if the response activity at the
Superfund site constitutes treatment, storage, or
disposal, as defined under RCRA. Disposal of
hazardous waste, in particular, triggers a number of
significant requirements, including closure
requirements (see Part II of this Fact Sheet) and land
disposal restrictions, which require treatment of wastes
prior to land disposal. (See Guides on Superfund
Compliance with Land Disposal Restrictions, OSWER
Directives 9347.3-01FS through 9237.3-06FS, for a
detailed description of these requirements.)
Because remedial actions frequently involve
grading, excavating, dredging, or other measures that
disturb contaminated material, activities at Superfund
sites may constitute disposal, or placement, of
hazardous waste (see Highlight 4).
Highlight* ACTIONS
CONSTITUTING DISPOSAL
DISPOSAL OCCURS WHEN:
AOC/UnN DNtaraot AOC/Unft
Wastes from different AOCs are consolidated into
one unit.
TREATMENT
RESIDUALS
AOCAJrtt
Wastes are removed from the AOC, treated in a
separate unit (even if physically within the same AOC),
and redeposited into the same or fnother AOC.
DISPOSAL DOES NOT OCCUR WHEN:
CONSOLIDATE
i-* AOCA»<**n
i i
Wastes are consolidated within the same AOC or unit.
Traal In-Oftu
Wastes are treated in situ.
AOC/Unn
Wastes are capped or left in place.
-3-
-------
EPA has determined that disposal occurs when
wastes are placed in a land-based unit. However,
movement within a unit does not constitute disposal
or placement, and, at CERCLA sites, an area of
contamination (AOC) can be considered to be
comparable to a unit. Therefore, movement within an
AOC does not constitute placement.
B. WHEN RCRA IS RELEVANT AND
APPROPRIATE
RCRA requirements that are not applicable may,
nonetheless, be relevant and appropriate, based on
site-specific circumstances. For example, if the source
or prior use of a CERCLA waste is not identifiable,
but the waste is similar in composition to a known,
listed RCRA waste, the RCRA requirements may be
potentially relevant and appropriate, depending on
other circumstances at the site.
However, the similarity of the waste at the
CERCLA site to RCRA waste is not the only, nor
necessarily the most important, consideration in the
determination. An in-depth, constituent-by-constituent
analysis is generally neither necessary nor useful, since
most RCRA requirements are the same for a given
activity or unit, regardless of the specific composition
of the hazardous waste.
The determination of relevance and
appropriateness of RCRA requirements is based on
the circumstances of the release, including the
hazardous properties of the waste, its composition and
matrix, the characteristics of the site, the nature of the
release or threatened release from the site, and the
nature and purpose of the requirement itself. Some
requirements may be relevant and appropriate for
certain areas of the site, but not for other areas. In
addition, some RCRA requirements may be relevant
and appropriate at a site, while others are not, even
for the same waste. For example, minimurr
technology requirements may be considered relevant
and appropriate for one area receiving waste because
of the high potential for migration of contaminants in
hazardous levels to ground water, but not for another
area that contains relatively immobile waste. Land
disposal restrictions may be determined not to be
relevant and appropriate for either area because the
treatment technology required by the requirement is
not appropriate, given the matrix of the waste. Only
those requirements that are determined to be both
relevant and appropriate must be attained.
C. STATE AUTHORIZATION UNDER RCRA
A State may be authorized to administer the
RCRA hazardous waste program in lieu of the
Federal program provided that the State has
equivalent authority. Authorization is granted
separately for the basic RCRA Subtitle C program,
which includes permitting and closure of TSDFs; for
regulations promulgated pursuant to HSWA, such as
land disposal restrictions; and for other programs,
such as delisting of hazardous wastes. If a site is
located in a State with an authorized RCRA program,
the State's promulgated RCRA requirements wil';
replace the equivalent Federal requirements ai
potential ARARs.
An authorized State program may also be more
stringent than the Federal program. For example, a
State may have more stringent test methods for
characteristic wastes, or may list more wastes as
hazardous than the Federal program does. Therefore,
it is important to determine whether laws in an
authorized State go beyond the Federal regulations.
-4-
//
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H. FOCUS ON RCRA CLOSURE REQUIREMENTS
For each type of unit regulated under RCRA,
Subtitle C regulations contain closure standards that
must be met when a unit is closed. For treatment
and storage units, the standards require that all
hazardous waste and hazardous waste residues be
removed when the unit is closed. In addition to the
option of closure by removal, called "clean closure,"
units such as landfills, surface impoundments, and
waste piles may be closed as disposal or landfill units
with waste in place, referred to as "landfill closure."
Frequently, the closure requirements for such land-
based units will be either applicable or relevant and
appropriate at Superfund sites.
A. WHEN CLOSURE REQUIREMENTS ARE
APPLICABLE
The basic prerequisites for applicability of closure
requirements are: (1) the waste must be a hazardous
waste; and (2) the unit (or AOC) must have received
waste after the RCRA requirements became effective,
either because of the original date of disposal or
because the CERCLA action constitutes disposal
(described in Pan I of this Fact Sheet). When RCRA
closure requirements are applicable, the regulations
allow only two types of closure: (11 clean closure;
and (2) disposal or landfill closure.
Highlight 5 provides a description of each type
of closure. Clean closure standards assume there will
be unrestricted use of the site and require no
maintenance after the closure has been completed, and
are often referred to as the "eatable solid, drinkable
leachate" standards. In contrast, disposal or landfill
closure standards require post-closure care and
maintenance of the unit for at least 30 years after
closure. EPA has prepared several guidance on
closure and final covers (e.g., the draft RCRA
Guidance Manual for Subpart G, Closure and Post-
Closure Standards.
technical guidance
Hazardous Waste
EPA-530-SW-78-010, and the
document, Final Covers on
Landfills and Surface
Impoundments. EPA 530-SW-89-047, July 1989).
These guidance documents are not ARARs, but are to
be considered (TBC) for CERCLA actions and may
assist in complying with these regulations. Of course,
the performance standards in the regulation may be
attained in ways other than that described in guidance,
depending on the specific circumstances of the site.
Highlight 5: REQUIREMENTS FOR CLEAN
AND LANDFILL CLOSURE
Clean Closure: All waste residues and
contaminated containment system components
(e.g., liners), contaminated subsoils, and
structures and equipment contaminated with
waste and leachate must be removed and
managed as hazardous waste or
decontaminated before the site management is
completed, "edible soil, drinkable leachate" [see
40 CFR 264.111, 264.228(a)].
Landfill Closure: The unit must-be capped
with a final cover designed and constructed to:
- provide long-term minimization of
migration of liquids;
- function with minimum maintenance;
- promote drainage and minimize erosion;
- accommodate settling and subsidence; and
- have a permeability less than or equal to
any bottom liner system or natural
subsoils present.
Post-closure care includes maintenance of the
final cover; operation of a leachate and
removal system; and maintenance of a ground-
water monitoring system [see 40 CFR 264.117,
264.228(b)].
B. WHEN CLOSURE REQUIREMENTS ARE
RELEVANT AND. APPROPRIATE
If they are not applicable, RCRA closure
requirements may be relevant and appropriate.
However, there is more flexibility in designing closures
because a hybrid closure is possible. Hybrid closure
occurs when only certain requirements in the closure
standards are relevant and appropriate. Depending on
the site circumstances and the remedy selected, either
clean closure, landfill closure, or a combination of
both may be used.
-5-
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The proposed revisions to the NCP discuss the
concept of hybrid closure (53 FR 51446). The NCP
illustrated the following possible hybrid closure
approaches: (1) hybrid-clean closure; and (2) hybrid-
landfill closure, which combines elements of clean
closure and closure with waste in place, as described
in Highlight 6.
Highlight 6: HYBRID-CLEAN AND
HYBRID-LANDFILL CLOSURES
Hybrid-Clean Closure: Used when leachate
will not impact the ground water (even though
residual contamination and leachate are above
health-based levels) and contamination does
not pose a direct contact threat.
- No covers or long-term management are
required;
- Fate and transport modeling and model
verification are used to ensure that
ground water is usable; and
- A property deed notice is used to indicate
the presence of hazardous substances.
Hybrid-Landfill Closure. Used when residual
contamination poses a direct contact threat,
but does not pose a ground-water threat.
- Covers, which may be permeable, are used
to address the direct contact threat;
- Limited long-term management includes
site and cover maintenance and minimal
ground-water monitoring;
- Institutional controls (e.g., land-use
restrictions or deed notices) are used as
necessary.
The two hybrid closure alternatives are constructs of
applicable laws but are not themselves promulgated
at this time. These alternatives are possible when
RCRA requirements are relevant and appropriate, but
are not available when closure requirements are
applicable.
AFTERWORD: MINIMUM TECHNOLOGY
REQUIREMENTS
While every unit to which RCRA applies must be
closed in accordance with RCRA closure requirements
(as discussed in Part II of this Fact Sheet), the
minimum technology requirements (MTR) apply only
to a subset of these regulated units. The MTR
require installation of double liners and a leachate
collection system, in addition to compliance with other
design standards.
The MTR apply only to new units, replacement
units.0 and lateral expansions of existing landfills (40
CFR 254.301(c)) and surface impoundments (40 CFR
254.221(c)).fr'c Therefore, an existing landfill or AOC
would not be subject to MTR, even if disposal of
hazardous waste occurred as pan of the CERCLA
action. The unit or AOC would, however, be subject
to RCRA closure standards for landfills. Although
not applicable, MTR may be relevant and appropriate
depending on the circumstances of the release and the
site.
a A replacement unit is further defined as an existing unit that meets the following criteria: (1) the unit is taken
out of service; (2) all or substantially all of the waste is removed; and (3) the unit is reused, which does not include
removal and replacement of waste into the same unit.
b In addition, as of November 19, 1988, existing surface impoundments that actively receive wastes must be
retrofitted to comply with MTR (with some limited exceptions).
0 LDR requires that certain restricted wastes, such as soft hammer wastes, be disposed of in a unit that meets
MTR, and therefore can trigger MTR indirectly (see Superfund LDR Guide #3. OSWER Directive 9347.3-03FS).
-6-
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Consideration of RCRA Requirements
in Performing CERCLA Responses at
Mining Waste Sites
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9234.0-4
AUG 191986
or- f ict OF
SOLID WASTE AND EMERGENCY RESPC
MEMORANDUM
SUBJECT: Consideration of RCRA Requirements in Performing
CERCLA Responses at Mining Waste Sites
FROM: Henry L. Longest II, Director
Office of Emergency and Remedial Response
TO: Waste Management Division Directors
Regions I - X
As you know, on July 3, 1986, the Agency issued a final
determination on whether mining waste would be regulated under
Subtitle C of RCRA (copy attached). This determination was>
based on a report to Congress mandated by RCRA Section 3001(b)
(3)(C) and subsequent public comments. The determination is
that mining wastes will not be regulated under Subtitle C at
this time. This conclusion is based on the belief that several
aspects of EPA's current hazardous waste management standards
if applied universally to mining sites, are likely to be environ-
mentally unnecessary, technically infeasible, or economically
impracti cal .
However, given the concern about actual and potential mining
waste problems, the Agency intends to develop a program for
regulating mining waste under Subtitle D. The current Subtitle D
program establishes criteria principally aimed at municipal and
industrial solid waste which focus on standards related to surface
water discharges, groundwater contamination and endangered species.
Modifications to this program will focus on identifying environ-
mental problems, setting priorities for applying controls at
sites with a high potential for risk, and employing a risk manage-
ment approach in the development of appropriate standards to
protect human health and the environment, as necessary, including
closure options, tailored controls, pretreatment of wastes prior
to disposal, and cleanup options. Revisions to Subtitle D criteria
are expected to be proposed in mid-1988; however, EPA has reserved
the option to reexamine a modified Subtitle C in the future 1f
this approach is unworkable or insufficient.
-------
-2-
In the Interim, Superfund win continue to address mining
waste problems through the RI/FS and ROD/EDO processes taking
Into account current Subtitle D requirements as well as options
for addressing risks not addressed by Subtitle D requirements.
To address such remaining risks, you may wish to consider the
technical requirements of Subtitle C regulations during the
initial review of remedial alternatives. If these requirements
seem to be technically 1nfeas1ble, they may be rejected early in
the screening process. If Subtitle C approaches appear to satisfy
the criteria found in Section 300.68 (g), Initial Screening of
Alternatives, of the NCR, they should be considered 1n the detailed
analysis. Other remedial alternatives should be evaluated in a
risk management analysis. In some cases, a combination of Subtitle
C and risk analysis approaches may be used to address a discrete
phase of response. All data generated during remedial planning,
including the basis for selection of specific remedies, should
be forwarded to my office as it becomes available so that the
Information can be transmitted to OSW to assist that office 1n
its development of standards for mining wastes.
Attachment
cc: Marcia Will lams , OSW
Gene Lucero, OWPE
Dan Berry, OGC
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Environmental Protection Agency
40 CFR Part 261
Regulatory Determination For Wastes From the Extraction and Beneficiation of
Ores and Minerals
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FRL 3033-7]
Regulatory Determination for Wastes from the Extraction and Beneficiation of
Ores and Minerals
AGENCY: Environmental Protection Agency.
ACTION: Regulatory determination.
SUMMARY: This is the regulatory determination for solid waste from the
extraction and beneficiation of ores and minerals required by section
3001(b)(3)(C) of the Resource Conservation and Recovery Act (RCRA). This
section of RCRA requires the Administrator to determine whether to promulgate
regulations under Subtitle C of the Act for these wastes or determine that
such regulations are unwarranted; the Administrator must make this
determination no later than six months after completing a Report to Congress
on these wastes and after public hearings and the opportunity to comment on
the report. After completing these activities and reviewing the information
available, the Agency has determined that regulation of the wastes studied in
the Report to Congress, i.e., wastes from the extraction and beneficiation of
ores and minerals, under Subtitle C is not warranted at this time.
ADDRESS: The address for the Headquarters docket is: United States
Environmental Protection Agency, EPA RCRA docket (Sub-basement), 401 M
street, SW., Washington DC, 20460, (202) 475-9327. For further details on what
the EPA RCRA docket contains, see Section VII. of this preamble, titled "EPA
RCRA Docket" under "SUPPLEMENTARY INFORMATION.".
FOR FURTHER INFORMATION CONTACT: RCRA/Superfund Hotline at
(800) 424-9346 or (202) 382-3000 or Dan Derkics at (202) 382-2791.
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SUPPLEMENTARY INFORMATION:
Preamble Outline
I. Summary of Decision
II. Background
III. Legal Authority
IV. Report to Congress
V. Application of Subtitle C to Mining Waste
VI. Application of Subtitle D to Mining Waste
VII. EPA RCRA Docket
Supplementary Information
I. Summary
Based on the Report to Congress, comments on the report, and other available
information, EPA has determined that regulation of mining waste under Subtitle
C of the Resource Conservation and Recovery Act (RCRA) is not warranted at
this time.
This conclusion is based on EPA's belief that several aspects of EPA's current
hazardous waste management standards are likely to be environmentally
unnecessary, technically infeasible, or economically impractical when applied
to mining waste. While under existing law EPA would have some flexiblity to
modify its standards for hazardous waste management as applied to these
wastes, there are substantial questions about whether the flexibility inherent
in the statute coupled with the Agency's current data on these wastes provide
a sufficient basis for EPA to develop a mining waste program under Subtitle C
that addresses the risks presented by mining waste while remaining sensitive
to the unique practical demands of mining operations. Given these
uncertainties, EPA does not intend to impose Subtitle C controls on mining
waste at this time.
The Agency, however, is concerned about certain actual and potential mining
waste problems, and therefore plans to develop a program for mining waste
under Subtitle D of RCRA. The long-term effectiveness of this program depends
on available State resources for designing and implementing a program tailored
to the needs of each State, and on EPA's ability to oversee and enforce the
program. As noted below in section VI, EPA will be working with the States to
determine the specific nature of their current mining waste activities and
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their future plans to administer such programs. The Administration will work
with Congress to develop expanded Subtitle D authority (i.e., Federal
oversight and enforcement) to support an effective State-implemented program
for mining waste. EPA has already made preliminary contacts with Congress and
intends to hold detailed discussions on the specifics of the Subtitle D
program in the coming year. In the interim, EPA will use RCRA section 7003 and
CERCLA sections 104 and 106 to protect against substantial threats and
imminent hazards. If EPA is unable to develop an effective mining waste
program under Subtitle D, the Agency may find it necessary to use Subtitle C
authority in the future.
II. Background
Section 8002(f) of the Resource Conservation and Recovery Act of 1976 directed
EPA to conduct:
A detailed and comprehensive study on the adverse effects of solid wastes from
active and abandoned surface and underground mines on the environment,
including, but not limited to, the effects of such wastes on humans, water,
air, health, welfare, and natural resources, and on the adequacy of means and
measures currently employed by the mining industry, Government agencies, and
others to dispose of and utilize such solid wastes to prevent or substantially
mitigate such adverse effects.
The study was to include an analysis of:
1. The Sources and volume of discarded material generated per year from
mining;
2. Present disposal practices;
3. Potential danger to human health and the environment from surface runoff of
leachate and air pollution by dust; "
4. Alternatives to current disposal methods;
5. The cost of those alternatives in terms of the impact on mine product
costs; and
6. Potential for use of discarded material as a secondary source of the mine
product.
On May 19, 1980, EPA promulgated regulations under Subtitle C of RCRA which
covered, among other things, "solid waste from the extraction, beneficiation,
and processing of ores and minerals," i.e., mining waste. On October 21,
1980, just before these Subtitle C regulations became effective, Congress
enacted the Solid Waste Disposal Act of 1980 (Pub. L. 96-482) which added
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section 3001(b)(3)(A)(ii) to RCRA. This section prohibits EPA from regulating
"solid waste from the extraction, beneficiation, and processing of ores and
minerals, including phosphate rock and overburden from the mining of uranium
ore" as hazardous waste under Subtitle C of RCRA until at least six months
after the Agency completes and submits to Congress the studies required by
section 8002(f), and by section 8002(p) (which was also added to RCRA by the
1980 amendments).
Section 8002(p) required EPA to perform a comprehensive study on the disposal
and utilization of the waste excluded from regulation, i.e., solid waste from
the extraction, beneficiation, and processing of ores and minerals, including
phosphate rock and overburden from the mining of uranium ore. This new study,
to be conducted in conjunction with the section 8002(f) study, mandated an
analysis of:
1. The source and volumes of such materials generated per year;
2. Present disposal and utilization practices;
3. Potential danger, if any, to human health and the environment from the
disposal and reuse of such materials;
4. Documented cases in which danger to human health or the environment has
been proved;
5. Alternatives to current disposal methods;
6. The costs of such alternatives;
7. The impact of these alternatives on the use of phosphate rock and uranium
ore, and other natural resources; and
8. The current and potential utilization of such materials.
The 1980 amendments also added section 3001(b)(3)(C), which requires the
Administrator to make a "regulatory determination" regarding the waste
excluded from Subtitle C regulation. Specifically within sk months after
submitting the Report to Congress, and after holding public hearings and
taking public comment on the report, the Administrator must "determine to
promulgate regulations" under Subtitle C of RCRA for mining waste or
"determine that such regulations are unwarranted."
EPA was required to complete the study and submit it to Congress by October
16, 1983. In 1984, the Concerned Citizens of Adamstown and the Environmental
Defense Fund sued EPA for failing to complete the section 8002 studies and the
regulatory determination by the statutory deadlines. The District Court for
the District of Columbia ordered EPA to complete the studies by December 31,
1985, and to publish the regulatory determination by June 30, 1986.
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EPA submitted its Report to Congress on mining waste on December 31, 1985. A
notice announcing the availabilityof the report, and the dates and locations
of public hearings, was published January 8, 1986 (51 FR 777). EPA held public
hearings on the report in Tucson, Arizona on March 6, 1986; Washington, DC on
March 11, 1986; and Denver, Colorado on March 13, 1986. The comment period
on the report closed March 31, 1986. This notice constitutes the Agency's
regulatory determination for the wastes covered by the Report to Congress,
i.e., wastes from the extraction and beneficiation of ores and minerals.
On October 2, 1986, EPA proposed to narrow the scope of the mining waste
exclusion in RCRA section 3001(b)(3)(A)(ii), as it applies to processing
wastes (50 FR 40292). Under this proposal, wastes that would no longer be
covered by the mining waste exclusion would be subject to Subtitle C if they
are hazardous. These "reinterpreted" wastes where not studied in the mining waste
Report to Congress and therefore, are not covered by this regulatory
determination.
III. Legal Authority
EPA has concluded that its decision whether to regulate mining waste under
Subtitle C should be based not just on whether mining waste is hazardous (as
currently defined by EPA regulations) but also should consider the other
factors that section 8002 required EPA to study. The basis of this conclusion
is the language of section 3001(b)(3)(A) which states that the regulatory
determination must be "based on information developed or accumulated pursuant
to [the section 8002 studies], public hearings, and comment. ..." Clearly,
Congress envisioned that the determination would be based on all the factors
enumerated in sections 8002 (f) and (p). Congress already knew that some
mining waste was hazardous, since the RCRA Subtitle C regulations which were
promulgated on May 19, 1980 were to apply to hazardous (both characteristic
and listed) mining waste. Congress apparently believed, however, that EPA
should obtain and consider additional information, not just data on which
types of mining waste are hazardous, before imposing Subtitle C regulation on
these wastes. Accordingly, this regulatory determination is based on
consideration of the factors listed in sections 8002 (f) and (p).
In reviewing the factors to be studied which are listed in sections 8002 (f)
and (p), and the legislative history of these and other mining waste
provisions, EPA has concluded that Congress believed that certain factors are
particularly important to consider in making the Subtitle C regulatory
determination. First, Congress instructed EPA to study the potential dangers
to human health and the environment from mining waste, indicating that the
decision to regulate under Subtitle C must be based on a finding of such a
danger. Second, section 8002(p) required EPA to review the actions of other
Federal and State agencies which deal with mining waste "with a view toward
avoiding duplication of effort." From this provision, EPA concludes that
Congress believed Subtitle C regulation might not be necessary if other
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Federal or State programs control any risks associated with mining waste.
Third, Congress expected EPA to analyze fully the disposal practices of the
mining industry which, when read in conjunction with the legislative history
of this provision, indicates concern about the feasibility of Subtitle C
controls for mining waste. Finally, Congress instructed EPA to look at the
costs of various alternative methods for mining waste management, as well as
the impact of those alternatives on the use of natural resources. Therefore,
EPA must consider both the cost and impact of any Subtitle C regulations in
deciding whether they are warranted. Clearly, Congress believed that it was
important to maintain a viable mining industry. Therefore, any Subtitle C
regulations which would cause widespread closures in the industry would be
unwarranted.
IV. Report to Congress
EP A's Report to Congress provides information on sources and volumes of waste,
disposal and utilization practices, potential danger to human health and the
environment from mining practices, and evidence of damages. EPA received more
than 60 written comments on the report and heard testimony at the hearings
from more than 30 individuals. A complete summary of all the comments
presented at the hearings and submitted in writing is available (ICF, 1986a
see VII No. 6); (see "EPA RCRA Docket"). This section summarizes the
information contained in the Report to Congress, public comments received on
the report, and EPA's response to the comments.
A. Summary of Report to Congress
1. Structure and Location of Mines
EPA focused on segments producing and concentrating metallic ores, phosphate
rock, and asbestos, totalling fewer than 500 active sites during 1985. These
sites, which are predominantly located in sparsely populated areas west of the
Mississippi River, vary widely in terms of size, product value, and volumes of
material handled. Several segments are concentrated primarily in one state:
The iron segment is mainly concentrated in Minnesota, lead in Missouri, copper
in Arizona, asbestos in California, and phosphate in Florida.
2. Waste Quantities
The Report to Congress estimated that 1.3 and 2 billion metric tons per year
of nonfuel mining waste were generated in 1982 and 1980, respectively. The
accumulated waste volume since 1910 from nonfuel mining is estimated to be
approximately 50 billion metric tons. The large volume of annual and
accumulated nonfuel mining waste results from the high waste-to-product ratios
associated with mining. The fact that most of the material handled in mining
is waste and not marketable product distinguishes mining from many other
process industries where waste materials make up a relatively small portion of
the materials used to produce a final product. Consequently, some of the
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larger mining operations handle more material and generate more waste than
many entire industries.
3. Waste Management Practices
The report indicated that site selection for mines, as well as associated
beneficiation and waste disposal facilities, is the single most important
factor affecting environmental quality in the mining industry. Most mine waste
is disposed of in piles, and most tailings in impoundments. Mine water is
often recycled through the mill and used for other purposes onsite. Off-site
utilization of mine waste and mill tailings is limited (i.e., 2 to 4 percent
of all mining waste generated). Some waste management measures (e.g., source
separation, treatment of acids or cyanides, and waste stabilization) now used
at some facilities within a narrow segment of the mining industry could be
more widely used. Other measures applied to hazardous waste in nonmining
industries may not be appropriate. For example, soil cover from surrounding
terrain may create additional reclamation problems in arid regions.
4. Potential Hazard Characteristics
Of the 1.3 billion metric tons of nonfuel mining waste generated by extraction
and beneficiation in 1985, about 61 million metric tons (5 percent) exhibit
the characteristics of corrosivity and/or EP (Extraction Procedure) toxicity,
as defined by 40 CFR 261.22 and 261.24, respectively. Another 23 million
metric tons (2 percent) are contaminated with cyanide (greater than 10 mg/1).
Further, there are 182 million metric tons (14 percent) of copper leach dump
material and 95 million metric tons (7 percent) of copper mill tailings with
the potential for release of acidic and toxic liquid, i.e., acid formation.
There are 443 million metric tons (34 percent) of waste from the phosphate and
uranium segments with radioactivity content greater than 5 picocuries per
gram; a total of 93 million metric tons (7 percent) has radioactivity content
greater than 20 picocuries per gram. Finally, asbestos mines generated about 5
million metric tons (less than 1 percent) of waste with a chrysotile content
greater than 5 percent.
5. Evidence of Damages
To determine what damage might be caused by mining waste, EPA conducted
ground-water monitoring and examined documented damage cases. During
short-term monitoring studies at eight sites, EPA detected seepage from
tailings impoundments, a copper leach dump, and a uranium mine water pond. The
EP toxic metals of concern, however, did not appear to have migrated during
the 6- to 9-month monitoring period. Other ground-water monitoring studies,
however, detected sulfates, cyanides, and other contaminants from mine runoff,
tailings pond seepage, and leaching operations. The actual human health and
environmental threat posed by any of these releases is largely dependent upon
site-specific factors, including a site's proximity to human populations or
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sensitive ecosystems. Sites well removed from population centers, drinking
water supplies, and surface waters are not likely to pose high risks.
Incidents of damage (e.g., contamination of drinking water aquifers,
degradation of aquatic ecosystems, fish kills, and related degradation of
environmental quality) have also been documented in the phosphate, gold,
silver, copper, lead, and uranium segments. As of September 1985, there were
39 extraction, beneficiation, and processing sites included or proposed for
inclusion on the National Priorities List under CERCLA (Superfund), including
five gold/siver, three copper, three asbestos, and two lead/zinc mines. The
asbestos Superfund sites differ from other sites in that these wastes pose a
hazard via airborne exposure.
6. Potential Costs of Regulation
The Report to Congress presented for five metal mining segments, total
annualized costs ranging from $7 million per year (for a scenario that
emphasizes primarily basic maintenance and monitoring for wastes that are
hazardous under the current RCRA criteria) to over $800 million per year (for
an unlikely scenario that approximates a full RCRA Subtitle C regulatory
approach, emphasizing cap and liner containment for all wastes considered
hazardous under the current criteria, plus cyanide and acid formation wastes).
About 60 percent of the total projected annualized cost at active facilities
can be attributed to the management of waste accumulated from past production.
Those segments with no hazardous waste (e.g., iron) would incur no costs.
Within a segment, incremental costs would vary greatly from facility to
facility, depending on current requirements of state laws, ore grade,
geography, past waste accumulation, percentage of waste which is hazardous,
and other factors.
B. Comments Received on the Report to Congress and EPA's Response
1. Potential Hazard Characteristics
EPA received several comments addressing the magnitude of the wastes generated
by the mining industry, and the amount that is hazardous. Many agreed with the
report's conclusion that there are substantial volumes of waste, but
questioned EPA's estimates of the amount of "hazardous" waste.
Many commenters noted that they believed the EP (Extraction Procedure) test is
inappropriate for mining waste because the municipal landfill mismangement
scenario on which the test is based is not relevant to mining waste. They
further noted that the corrosivity characteristic is not appropriate because
it does not address the buffering capacity of the environment at certain
mining sites. Finally, several commenters noted that leaching operations are
processes, rather than wastes and are thus outside the purview of RCRA.
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The Agency agrees that dump and heap leach piles are not wastes; rather they
are raw materials used in the production process. Similarly, the leach liquor
that is captured and processed to recover metal values is a product, and not a
waste. Only the leach liquor which escapes from the production process and
abandoned heap and dump leach piles are wastes. Since the report identified 50
million metric tons of heap and dump leach materials as RCRA corrosive wastes,
EPA has accordingly reduced its estimate of mining waste volumes which meet
the current definition of hazardous waste. The Agency currently estimates that
out of the 61 million metric tons per year of mining waste identified as
hazardous in the Report to Congress, only 11 million metric tons of mining
waste generated annually are hazardous because they exhibit EP toxicity, and
an unknown amount of escaped leach liquor is corrosive. EPA has also concluded
that potential problems from substantial quantities of mining waste which have
other properties, i.e., radioactivity, asbestos, cyanide, or acid generation
potential will not be identified by the current RCRA characteristics. EPA,
therefore, believes that entirely different criteria may more appropriately
identify the mining wastes most likely to be of concern.
2. Evidence of Damages
EPA received many comments on whether the Report to Congress demonstrates
that mining waste pose a threat to human health and the environment. Many
commenters alleged that the report does not demonstrate conclusively that such
wastes do pose a threat. They claimed that EPA did not adequately consider the
site-specific nature of mining waste management problems. They pointed out
that the environmental settings of sites vary widely, as do management
practices, and that all these factors influence risk. Also, several commenters
noted that the report fails to distinguish between the threat from past
practices and the threat, if any, from current practices. Based on these
observations, many of these commenters urged EPA to postpone regulations
pending additional analysis. However, other commenters noted that they
believed there is sufficient evidence that mining waste poses a threat to
human health and the environment and asked for immediate regulatory action,
noting that the time for study was over.
The Agency agrees that adverse effects to the public and the environment from
the disposal of mining waste is not likely at sites well-removed from
population centers, drinking water supplies, surface water, or other
receptors. However, for other sites, analyses of contaminant plumes released
by leaching operations and releases of other contaminants (e.g., acids,
metals, dusts, radioactivity) demonstrate adverse effects. Moreover, the
Agency recognizes, as evidenced by the mining waste sites on the National
Priorities List, the potential for problems from mining sites. It is apparent
that some of the problems at Superfund or other abandoned sites are
attributable to waste disposal practices not currently used by the mining
industry. However, it is not clear from the analysis of damage cases and
Superfund sites, whether current waste management practices can prevent damage
from seepage or sudden releases. EPA is concerned that a large exposure
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potential exists at some sites generating mining waste, particularly the sites
that are close to population centers or in locations conducive to high
exposure and risk to human health and the environment.
3. Potential Costs of Regulation
EPA received a large number of comments pertaining to the cost of complying
with regulations for mining waste, and the effects these compliance costs
would have on the mining industry. Many commenters claimed that regulating the
mining industry would impose costs much greater than those EPA estimated in
its Report to Congress. They also noted that the mining industry was
depressed, and that for many mines, increased compliance costs would be
greater than the profits, leading to forced closures.
Many commenters also pointed out that there are current Federal and State
regulations which already apply to mining, which impose costs. They noted that
EPA needs to review the existing Federal and State regulatory structure before
adding to it, thereby imposing additional costs. Others did not agree,
commenting that existing Federal and State regulations are inadequate, and
that additional EPA regulation is necessary.
EPA is sensitive to the potential costs to the industry associated with mining
waste regulations under Subtitle C. The Agency is also cognizant that many EPA
programs already affect the mining industry such as the Clean Water Act which,
among other things, control surface water discharge via national Pollutant
Discharge Elimination system (NPDES) permits. Other Federal agencies,
including the Bureau of Land Management, the Forest Service, and the National
Park Service, also exercise oversight and impose regulatory controls (CRA,
1986b see VII no. 3). The Federal waste disposal requirements generally call
for practices that will prevent unnecessary and undue degradation. Federal
reclamation guidelines are somewhat more detailed, requiring approval of a
land management operating plan and an environmental assessment. Also these
agencies generally require compliance with all applicable state and local laws
and ordinances.
A number of states have their own statutes and implementing regulations for
mining waste. Some states have comprehensive and well-integrated programs;
other States have newer, partially developed programs (CRA, 1986c see VII no.
4). Although there is great variation in programs, many states have siting and
permitting requirements, and require financial assurance, ground-water and
surface water protection, and closure standards. EPA agrees that any
requirements necessary to protect human health and the environment should
consider the existing Federal and State mining waste programs with a view
toward avoiding duplication of effort.
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C. Mining Waste Conclusions
Based on the available information and public comments, the Agency draws the
following conclusions about mining wastes. (BAI, 1986 see VII No. 1)
Source and Volume
- The waste volume generated by mining and beneficiation is considerably
larger than the volume of waste generated by other industries currently
subject to hazardous waste controls. The mining industry alone generates over
one billion metric tons of waste per year compared to 260 million metric tons
generated annually by all other hazardous waste industries. The average mining
waste facility manages about three million metric tons of waste annually while
the typical facility subject to Subtitle C controls manages about 50 thousand
metric tons of waste per year.
- In general, mining waste disposal facilities are considerably larger than
industrial hazardous waste disposal facilities; most of the largest industrial
hazardous waste land disposal facilities are (tens of acres) in size, while
typical mining waste disposal facilities are (hundreds of acres) in size.
Agency studies indicate that mining waste tailings impoundments average about
500 acres; the largest is over 5000 acres. Mining waste piles average 126
acres; the largest exceeds 500 acres. Hazardous waste impoundments, however,
average only about 6 acres and hazardous waste landfills average only about 10
acres. Consequently, EPA believes that many traditional hazardous waste
controls may be technically infeasible or economically impractical to
implement at mining waste sites because of their size.
Waste Management Practices
- EPA estimates indicate that most hazardous waste generators (about 70
percent) ship all of their waste off-site, however, no mines ship all of their
waste off-site. In addition, nearly all mining waste is land disposed, while
less than half of all industrial hazardous waste is land disposed.
Evidence of Damage
- In general, environmental conditions and exposure potential associated with
mining waste are different than those associated with industrial hazardous
waste streams. Agency studies suggest that mining waste streams generally have
lower exposure and risk potential for several reasons.
- First, mining waste management facilities are generally in drier climates
than hazardous waste management facilities, thereby reducing the leaching
potential. Over 80 percent of the mining sites are located west of the
Mississippi River, which generally has drier climates, whereas industrial
hazardous waste landfills are more evenly distributed nationally. In addition,
the Agency estimates that more than sixty percent of all mines have annual net
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recharge between 0-2 inches, and only ten percent have net recharge greater
than ten inches. However, about 80 percent of the hazardous waste land
disposal facilities have net recharge greater than five inches, and over
one-third exceed 15 inches.
- Second, EPA studies indicate that hazardous waste land disposal facilities
are closer to ground water than mining waste sites. Over 70 percent of
hazardous waste sites have a depth to ground water of 30 feet or less, while
about 70 percent of mining sites have ground water depths greater than 30
feet.
- Third, Subtitle C facilities tend to be located in more densely populated
areas. EPA estimates that mining waste sites have average populations of less
than 200 within one mile of the site, while hazardous waste sites average over
2,000 people at the same distance. Within five miles of the mining waste
sites, the average population is almost 3,000, while hazardous waste sites
average nearly 60,000 people.
- Fourth, Agency studies suggest that, compared to mining waste sites,
hazardous waste sites tend to be located closer to drinking water receptors
and serve larger populations. Almost 70 percent of the hazardous waste sites
are located within five miles of a drinking water receptor serving an average
population of over 18,000 and as many as 400,000 people. Almost half as many
mining sites are located within this same distance, and they serve
considerably smaller populations (averaging 3,000 but ranging as high as
20,000.)
- Although the Agency believes that the human exposure and risk potential
appears to be lower for mining waste sites than for industrial hazardous waste
sites, many mines are located in sensitive environmental settings. EPA
estimates that about 50 percent of the mines are located in areas that have
resident populations of threatened or endangered species or species of other
special concern, (often the case for industrial sites). In addition, mining
sites are typically located in relatively remote and otherwise undisturbed
natural environments.
Cost and Economic Impacts
- EPA believes that many traditional waste management controls designed
principally for industrial hazardous waste management facilities may be
economically impractical to implement at mining sites and could impose
substantial costs to the industry resulting in potential mine closures. Full
Subtitle C controls for mining sites could impose as much as $850 million per
year in compliance costs. Such costs could be greater than profits resulting
in mine closures.
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- Many Federal and State agencies already have regulatory programs for
managing mining waste. New hazardous waste controls for mining waste could be
difficult to integrate with existing Federal and State programs.
V. Application of Subtitle C to Mining Waste
EPA believes that it needs maximum flexibility to develop an appropriate
program for mining waste which addresses the technical feasibility, the
environmental necessity, and the economic practicality of mining waste
controls. The program should consist of a tailored risk-based approach which
addresses the diversity and unique characteristics of mining waste problems.
The current Subtitle C program is designed principally for controlling
problems created by industrial wastes. Based on information available, the
Agency believes that many controls required under the current Subtitle C
program, if applied universally to mining sites, would be either unnecessary
to protect human health and the environment, technically infeasible, or
economically impractical to implement. For instance, certain Subtitle C
requirements such as single and double liner system requirements which provide
liquid management, and closure and capping standards to minimize infiltration,
may be technically infeasible or economically impractical to implement for
mining wastes because of the quantity and nature of waste involved. In
addition, for many mining sites located in remote areas, such controls may be
necessary to protect human health and the environment. For example, liquid
releases to the ground water can be minimized and controlled using cutoff
walls or interceptor wells (i.e., controlled release) as well as through liner
systems, and alternate capping requirements designed to address site-specific
concerns such as direct human contact or wind erosion, are likely to be
feasible and practical, thus providing better long-term protection of human
health and the environment.
Section 3004(x) of RCRA does provide flexibility for regulating mining waste.
This section gives EPA the authority to modify certain Subtitle C requirements
for mining waste which were imposed by the Hazardous and Solid Waste
Amendments of 1984 (HSWA) which relate to liquids in landfills, prohibitions
on land disposal, minimum technological requirements, continuing releases at
permitted facilities, and retrofitting interim status surface impoundments
with liners. In modifying these requirements, EPA may consider site-specific
characteristics as well as the practical difficulties associated with
implementing such requirements. In addition, EPA has general authority under
RCRA section 3004(a) to modify remaining Subtitle C requirements, such as
administrative standards, financial requirements, and closure and capping
requirements, if a waste poses different risks or the existing standards are
technically infeasible. However, in modifying such requirements, section
3004(a) does not provide EPA the same degree of flexibility to consider the
economic impact of regulation that is found in section 3004(x).
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As described earlier in this notice, EPA believes that the decision whether to
regulate mining waste under Subtitle C must consider the factors listed in
RCRA sections 8002 (f) and (p), including the risks associated with mining
waste, the cost of such regulation, and the effect regulation might have on
the use of natural resources. EPA has concluded that in order to meet that
objective, it would want to develop a program that has maximum flexibility to
develop an effective control strategy for individual facilities based on
site-specific conditions. The existing Subtitle C regulatory program would
probably have to be changed substantially for mining waste to provide that
type of flexibility.
Given these general conclusions about what would be needed to make the
Subtitle C system appropriate for mining waste, there are substantial
uncertainties about whether that program is the right mechanism to address
mining waste. First, it is unclear whether the legal authorities under which
EPA would be acting (i.e., sections 3004(a) and 3004(x)) give EPA sufficient
flexibility to craft a program for "hazardous" mining waste given the
statutory and regulatory approach established for other hazardous wastes.
Second, and closely related, there are substantial questions about whether the
Agency's current data on mining waste management provide a basis for
substantial modifications to the existing Subtitle C regulatory program. With
the mining waste study and the supplementary information collection efforts
associated with today's notice, EPA has greatly expanded its understanding of
mining waste management practices. At the same time, additional data
collection and analysis would probably be necessary to support specific
modifications of multiple provisions in the existing hazardous waste
regulations before those regulations would provide the type of flexibility we
currently believe might be necessary. These uncertainties have led us to the
conclusion that Subtitle C does not provide an appropriate template for a
mining waste management program.
VI. Application of Subtitle D to Mining Waste
Solid waste that is not hazardous waste is subject to regulation under
Subtitle D. Therefore, mining waste, which is included in the RCRA definition
of solid waste, is currently covered by Subtitle D. EPA believes that it can
design and implement a program specific to mining waste under Subtitle D that
addresses the risks associated with such waste. The current Subtitle D program
establishes criteria which are, for the most part, environmental performance
standards that are used by States to identify unacceptable solid waste
disposal practices or facilities. (See 40 CFR Part 257.) These criteria
include, among other things, standards related to surface water discharges,
ground-water contamination, and endangered species. Because the program's
criteria are aimed principally at municipal and industrial solid waste, EPA
believes they do not now fully address mining waste concerns. In addition,
many of these criteria, such as control of disease vectors and bird hazards,
are not appropriate for mining waste.
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The Agency is currently revising these criteria for facilities that may
receive hazardous household waste and small quantity generator hazardous
waste; these revisions will not apply to mining waste which are generally not
codisposed with such wastes. However, the Agency intends to further augment
the Subtitle D program by developing appropriate standards and taking other
actions appropriate for mining waste problems. EPA will focus on identifying
environmental problems and setting priorities for applying controls at mining
sites with such potential problems as high acid-generation potential,
radioactivity, asbestos and cyanide wastes. EPA will also develop a
risk-management framework to develop appropriate standards as necessary to
protect human health and the environment. EPA will consider requirements such
as: (1) A range of closure options to accommodate variable problems such as
infiltration to ground water and exposure from fugitive dust; (2) options to
define tailored controls, including those established by the Clean Water Act,
to address problems from runoff to surface water; (3) options for liquid
management controls such as pretreatment of wastes prior to disposal,
controlled release, or liner systems; (4) ground-water monitoring options that
accommodate site-specific variability; and (5) a range of clean-up options.
In developing such a program, EPA will use its RCRA Section 3007 authority to
collect additional information on the nature of mining waste, mining waste
management practices, and mining waste exposure potential. EPA believes this
authority does not limit information collection to "hazardous" waste
identified under Subtitle C but also authorizes the collection of information
on any solid waste that the Agency reasonably believes may pose a hazard when
improperly managed. (EPA may also use this authority in preparing enforcement
actions.) Initially, EPA will use this information to develop a program under
Subtitle D. The information, however, may indicate the need to reconsider
Subtitle C for certain mining wastes.
In specifying the appropriate standards, EPA also will further analyze
existing Federal and State authorities and programs and determine future plans
for administering their mining waste programs. Additionally, EPA will perform
analyses of costs, impacts, and benefits and will comply fully with Executive
Orders 12291 and 12498, the Regulatory Flexibility Act, and the Paperwork
Reduction Act.
EPA is concerned that the lack of Federal oversight and enforcement authority
over mining waste controls under Subtitle D of RCRA and inadequate State
resources to develop and implement mining waste programs may jeopardize the
effectiveness of the program. The Administration therefore will work with
Congress to develop the necessary authority. In the interim, EPA will use
section 7003 of RCRA and sections 104 and 106 of CERCLA to seek relief in
those cases where wastes from mining sites pose substantial threats or
imminent hazards to human health and the environment. Mining waste problems
can also be addressed under RCRA Section 7002 which authorizes citizen
lawsuits for violations of Subtitle D requirements in 40 CFR Part 257.
15
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As EPA develops this program for regulating human health and environmental
risks associated with mining waste, the Agency may find that the Subtitle D
approach is unworkable, perhaps because there is insufficient authority to
implement an effective program (i.e., the Agency does not obtain oversight and
enforcement authority under Subtitle D), or that States lack adequate
resources to develop and implement the program. In such an event, EPA may find
it necessary to reexamine use of Subtitle C authority with modified mining
waste standards in the future.
EPA has already made preliminary contacts with Congress to discuss the best
approach for an effective mining waste program. The Agency intends to
immediately begin collecting additional technical, economic, and other
relevant information needed for program development, and to complete its data
analysis by late 1987. EPA hopes to propose revisions to the Subtitle D
criteria that are specific to mining waste by mid-1988.
VII. EPA RCRA Docket
The EPA RCRA docket is located at:
United States Environmental Protection Agency,
EPA RCRA Docket (Sub-basement),
401 M Street, SW.,
Washington, DC 20460.
The docket is open from 9:30 to 3:30 Monday through Friday, except for Federal
holidays. The public must make an appointment to review docket materials. Call
Mia Zmud at (202) 475-9327 or Kate Blow at (202) 382-4675 for appointments.
Copies of the following documents are available for viewing only in the EPA
docket room:
1. Buc & Associates Inc., 1986. Location of Mines and Factors Affecting
Exposure.
2. Charles River Associates, 1986a. Estimated Costs to the U.S. Uranium and
Phosphate Mining Industry for Management of Radioactive Solid Wastes.
3. Charles River Associates, 1986b. Federal Non-EPA Regulations Addressing
Mining Waste Practices.
4. Charles River Associates, 1986c. State Regulations of the U.S. Mining
Industry.
5. Frontier Technical Associates, 1986a. Groundwater Monitoring Data on Ore
Mining and Milling Solid Waste Disposal.
6. ICF, 1986a. Summary of Comments on the Report to Congress.
16
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7. ICF, 1986b. Overview of Superfund Mine Sites.
8. Meridian 1986. Statistical Analysis of Mining Waste Data.
9. Versar, 1986a. Quantities of Cyanide-bearing and Acid-Generating Wastes.
10. Versar, 1986b. Technical Studies Supporting the Mining Waste Regulatory
Determination.
The public may copy a maximum of 50 pages of material from any one regulatory
docket at no cost. Additional copies cost $.20/page.
Dated: June 30, 1986.
Lee M. Thomas,
Administrator.
[FR Doc. 86-15168 Filed 7-2-86; 8:45 am]
BILLING CODE 6560-50-M
17
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Policy for Superfund Compliance with the
RCRA Land Disposal Restrictions
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
APR I 7 1989
OSWER Directive 9347.1-02
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Policy for Superfund Compliance With the RCRA Land Disposal
Restrict&or
w/w
FROM: JonathaY ~
Acuing Assistant Administrator
TO: Regional Administrators, Regions I-X
To transmit the Superfund policy for complying with the RCRA land
disposal restrictions (LDRs) at Superfund sites.
Background
CERCLA section 121(d) requires on-site Superfund remedial actions to
comply with Federal, and more stringent State, environmental requirements that
are determined to be applicable or relevant and appropriate requirements
(ARARs). Section 121 also identifies six ARAR waivers: 1) interim remedy;
2) greater risk to human health and the environment; 3) technical
impracticability; 4) equivalent standard of performance; 5) inconsistent
application of State standard; and 6) Fundbalancing.
With regard to Superfund removal actions, the current NCP requires onsite
removal actions to comply with Federal ARARs to the extent practicable,
considering the exigencies of the situation. The preamble to the proposed NCP
contains guidance on how to determine whether compliance is "practicable."
Onsite removal and remedial actions must comply with substantive aspects
of both applicable and relevant and appropriate requirements. Offsite removal
and remedial actions must comply with both substantive and administrative
aspects of applicable requirements only.
The RCRA land disposal restrictions are a potential ARAR for Superfund
actions. As you may know, OERR is developing a guidance document to assist the
Regions in complying with the LDRs. Although several issues must be resolved
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-2- 9347.1-02
before this guidance is issued, this memorandum will summarize one of the major
issues that has been decided, namely, how to determine whether the LDRs are
"applicable" to a Superfund response action. This policy will be discussed in
greater detail in the guidance document.
Objective
In order to assist Regional removal and remedial staff in making current
site decisions about the LDRs, this memorandum will explain: 1) how to
determine when the LDRs are "applicable" to a Superfund removal or remedial
action, and 2) the Superfund approach for complying with the LDRs when they are
determined to be applicable. (This memorandum does not address how to make
"relevant and appropriate" determinations.)
Implementation
Section A below explains how site managers (OSCs, RPMs) should determine
whether the LDRs are "applicable" to a Superfund response action. Section B
explains how Superfund intends to comply with the LDRs when they are
determined to be applicable.
A. Application of the LDRs to CERCLA response actions
To determine if the LDRs are applicable to a given response action at a
Superfund site, the site manager must answer three questions. The answer to
each question must be "yes" for the LDRs to be applicable.
1. Does the CERCLA action constitute "placement"?
The LDRs are triggered as applicable requirements by "placement" of
restricted RCRA hazardous wastes in landbased units. Placement occurs when
wastes are land disposed (or placed) in land-based RCRA units, such as
landfills, surface impoundments, waste piles, and land treatment facilities.
Placement does not occur if wastes are moved within a unit or are left in place
(e.g., capping, in-situ treatment, consolidation within a unit). Placement
does occur when wastes are moved from one unit and placed in another unit. For
example, if wastes from a CERCLA site are disposed at an offsite landfill,
this action constitutes placement.
However, the concept of a RCRA unit may be less useful for uncontrolled
hazardous waste sites, which often involve widespread and dispersed
contamination. Therefore, to assist in defining when placement occurs for on
site disposal at Superfund sites, the Agency has developed the concept of an
Several LDR requirements (the storage restrictions, dilution prohibition,
and off-site notification requirements, in particular) are triggered when
restricted wastes are generated, or picked up, rather than when the wastes
are "placed." However, the major LDR restrictions discussed in the
remainder of this memorandum are triggered only if wastes are "placed."
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-3- 9347.1-02
"area of contamination" (AOC). An AOC is delineated by the extent of
continuous contamination, although one AOC may contain varying types and
concentrations of contamination. For example, a waste pit with the surrounding
contaminated soil is one AOC and may be viewed as a single "unit," e.g., a
single landfill. For the purposes of the LDRs, therefore, AOCs are equivalent
to RCRA units.
Movement of waste within the AOC does not constitute placement, but
movement of waste out of the AOC into another unit will trigger placement.
Placement would occur if wastes from different AOCs are consolidated into one
AOC or if wastes are removed and treated outside the AOC and returned to the
same or a different AOC. Placement would also occur if wastes are excavated
from the AOC, placed in an incinerator or tank located within the AOC, and then
redeposited into the AOC, because the incinerator and tank are considered
separate units from the AOC.
2. Is the CERCLA waste also a RCRA hazardous waste?
The LDRs are applicable only to RCRA hazardous wastes (i.e., listed and
characteristic wastes identified under §261). However, not all wastes at
Superfund sites are RCRA hazardous wastes. Therefore, the site manager must
decide if it is reasonably ascertainable, within the scope of the Superfund
site investigation, that the CERCLA waste is also a RCRA hazardous waste.
Reasonable efforts must be used to collect the information needed to determine
if a waste is a RCRA listed or characteristic waste. (It is expected that
current data collection efforts at Superfund sites should be sufficient for
this purpose.) The site manager should have affirmative evidence (e.g.,
manifests, records, knowledge of process) to demonstrate that the Superfund
waste is a RCRA hazardous waste for the LDRs to be potentially applicable.
To determine whether a CERCLA waste is a RCRA characteristic waste, site
managers may test the waste or use their knowledge of the properties of the
waste. To determine if a waste is a listed waste, sampling alone will not be
sufficient. The RCRA listing descriptions will generally require that the site
manager have knowledge about the source of the waste (for example, did the
sludge on site result from a wastewater treatment operation?) or its prior use
(e.g., was the waste unused when it was discarded?).
If the site manager determines that the site waste is a RCRA hazardous
waste, he/she must also determine if that waste is a "California list" waste.
The California list wastes are a distinct category of RCRA hazardous wastes
regulated under the LDRs. The LDR regulations describe the California list
wastes and they will be discussed in the forthcoming guidance document.
3. Is the RCRA waste restricted under the LDRs at the time of placement?
The land disposal restrictions are being phased in for the RCRA hazardous
wastes over a period of time. Attachment 1 presents the LDR statutory
deadlines established by section 3004 of the 1984 RCRA amendments. A RCRA
waste becomes a restricted waste under the LDRs on its statutory deadline, or
earlier if EPA chooses to promulgate treatment standards for a waste prior to
this deadline. Note that after May 1990, all RCRA hazardous wastes (that were
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-4- 9347.1-02
listed or characteristic as of the 1984 RCRA amendments) will be restricted
under the LDRs.
To determine if the LDRs are applicable, site managers should determine if
the RCRA waste will be restricted under the LDRs at the time the waste is to be
placed.
To summarize Section A, the LDRs are applicable when three conditions are
met: 1) the CERCLA action constitutes placement, 2) the CERCLA waste is a RCRA
hazardous waste, and 3) the RCRA waste is restricted at the time of placement.
If these conditions are met, the CERCLA action must comply with the LDRs,
unless an ARAR waiver is granted (remedial actions) or compliance with the LDRs
is determined not to be "practicable" (removal actions).
B. Superfund compliance with the LDRs
Section B briefly describes the different types of LDR requirements and
provides an overview of the Superfund approach for complying with these LDR
requirements when they are determined to be "applicable." Section B describes
only the major LDR restrictions; the upcoming guidance document will give a
complete description of all LDR provisions.
1. Summary of the major LDR requirements
When a waste becomes "restricted" on its statutory deadline (or possibly
earlier), one of four types of restrictions will take effect:
Treatment standard (§268.40-43) - The RCRA amendments direct EPA to
promulgate treatment standards for all RCRA hazardous wastes by the
statutory deadlines. To date, most of the standards set by EPA are
concentration levels that must be achieved prior to land disposal. (The
regulations specify whether a total waste analysis or the Toxicity
Characteristic Leaching Procedure (TCLP) must be used to measure the
concentration levels.) For concentrationbased treatment standards, any
technology may be used to achieve these standards. However, in limited
cases, EPA has also promulgated a specific technology as a treatment
standard, or has established a "no land disposal" treatment standard where
a waste was no longer generated, no longer being land disposed, or was
capable of being totally recycled.
National capacity extension (§268.30-33) - When EPA sets a treatment
standard for a waste, it must also determine if there is sufficient
capacity available nationwide to treat the waste to that standard. If
not, EPA may grant a nationwide capacity extension for the waste for up to
two years. During the extension, the waste does not have to meet the
treatment standard. However, if waste that does not meet the standard is
disposed in a landfill or surface impoundment, the receiving unit must
meet the RCRA §3004(o) minimum technology requirements (e.g., double
liner, leachate collection system, ground water monitoring). Because of
these limitations on disposal, wastes are still considered "restricted"
during national capacity extensions.
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-5- 9347.1-02
Attachment 2 highlights the national capacity extensions that EPA has
granted to date for CERCLA soil and debris wastes that are contaminated
with RCRA restricted wastes.
Soft hammer (§268.8) - If EPA fails to set a treatment standard for a
First or Second Third waste on the statutory deadline, the soft hammer
goes into effect automatically. The soft hammer places two requirements
on the disposal of wastes in landfills and surface impoundments: 1) the
receiving unit must meet the RCRA minimum technology requirements, and
2) the generator must demonstrate and certify that he has investigated
treatment options for the waste, and, where treatment is practically
available, that the waste has been treated using the best practically
available treatment method. The soft hammer remains in effect until EPA
sets a treatment standard for the waste, or until the hard hammer falls in
May 1990, whichever comes first.
Hard hammer (RCRA §3004(g)(6)(C)) - If EPA fails to set a treatment
standard for a solvent, dioxin, or California list waste by the statutory
deadlines for these wastes, or for any "Third" waste by May 1990, the hard
hammer falls. The hard hammer prohibits all land disposal of the affected
waste.
Compliance with RCRA and the LDRs may also be obtained through several
options other than meeting the restrictions above. It is important to note
that these options constitute compliance with. RCRA; they do not require an ARAR
waiver under CERCLA.
A Treatability Variance (§268.44) is available when a treatment standard
has been set for a waste. The variance can be used where, because the
site manager's waste is significantly different from the waste used by EPA
to set the treatment standard, the standard cannot be met or the BDAT
technology is inappropriate. The variance can be granted either
administratively, for a particular waste at a particular site, or through
a rulemaking procedure, which establishes a new nationwide waste category
and associated treatment standard.
An Equivalent Treatment Method Petition (§268.42) can be used where a
treatment standard is a specified technology, but the site manager can
demonstrate that another technology can achieve an equivalent measure of
performance.
A No-Migration Petition (§268.6) can be used as an alternative to any of
the four restrictions above. The site manager must demonstrate that there
will be no migration of hazardous constituents above healthbased levels
from the disposal unit or injection zone for as long as the waste remains
hazardous.
Delisting (§260.20 and §260.22) can be used as an alternative to any of
the four restrictions above, when the RCRA hazardous waste is a listed
waste. The site manager must demonstrate that: 1) the waste does not meet
any of the criteria under which the waste was listed, and 2) other factors
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-6-
9347.1-02
(including additional constituents) would not cause the waste to be
hazardous.
2. Superfund approach for complying with the LDR requirements
The present Superfund approach for complying with the LDRs when they are
applicable requirements is illustrated below:
CASE A: CERCLA liquid or sludge wastes that are also RCRA restricted
hazardous wastes
CERCLA liquid
or sludge
RCRA restricted +
hazardous waste
Placement =
LDR is applicable. Must
comply (unless CERCLA
ARAR waiver is granted).
If the LDR restriction is
a treatment standard,
evaluate whether it can
be met. If not,
determine if a
Treatability Variance or
other RCRA option is
appropriate.
CASE B: CERCLA soil or debris wastes that contain RCRA restricted
hazardous wastes
CERCLA soil + RCRA restricted +
or debris hazardous waste
Placement = LDR is applicable. Must
comply (unless CERCLA
ARAR waiver is granted).
If LDR restriction is a
treatment standard, will
generally be appropriate
to seek a Treatability
Variance. Other RCRA
options may also be
appropriate.
CERCLA response actions often address waste matrices, such as contaminated
soil and debris, that are different from the RCRA industrial wastes used to set
the LDR treatment standards. Therefore, the Agency is undertaking a rulemaking
that will set LDR treatment standards specifically for contaminated soil and
debris. Until that rulemaking is completed, site managers should use the data
collected during the removal and remedial site investigations to support a
Treatability Variance for soil and debris where necessary. As part of this
interim approach, the Agency is developing specific guidance for obtaining a
Treatability Variance for soil and debris, which establishes alternate
treatment levels or methods for soil and debris.
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-7- 9347.1-02
If you have further questions, you may call the Headquarters Superfund
Regional Coordinators, Carolyn Offutt of the CERCLA program (FTS 475-9760), or
Michaelle Wilson of the RCRA land disposal restrictions program (FTS 382-4770).
Attachments
cc: Regional Counsel, Regions I-X
Director, Waste Management Division, Regions I, IV, V, VII, and VIII
Director, Emergency and Remedial Response Division, Region II
Director, Hazardous Waste Management Division, Regions III and VI
Director, Toxics and Waste Management Division, Region IX
Director, Hazardous Waste Division, Region X
Environmental Services Division Directors, Regions I, VI, and VII
Henry Longest
Sylvia Lowrance
Bruce Diamond
Lisa Friedman
Superfund Branch Chiefs, Regions I-X
Oil and Hazardous Materials Coordinators, Regions IX
Bettie Van Epps, OEKR Document Coordinator
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Attachment 1
LDR STATUTORY DEADLINES
RCRA HAZARDOUS WASTE
STATUTORY DEADLINE*
Spent solvent wastes (F001-F005)
Dioxin wastes (F020-F023 and F026-F028)
California list wastes
- Any RCRA hazardous waste; and
- Liquid (except for HOCs); and
- Exceeds statutory prohibition level for
certain cyanides, metals, corrosives,
PCBs or HOCs
CERCLA/RCRA corrective action soil and debris
(Solvent-containing, dioxin-containing, and
California list wastes only)
First Third wastes (listed RCRA hazardous wastes)
Second Third wastes (listed RCRA hazardous wastes)
Third Third wastes (listed and characteristic
RCRA hazardous wastes)
New RCRA wastes (any RCRA hazardous waste listed
or identified under RCRA 3001 after
November 8, 1984)
November 8, 1986
November 8, 1986
July 8, 1987
November 8, 1988
August 8, 1988
June 8, 1989
May 8, 1990
Within 6 months
of listing or
identification**
* These dates are statutory deadlines in HSWA. On this date, some type
of LDR restriction will apply (i.e., treatment standard, minimum
requirement during national capacity extension, soft hammer, hard
hammer). However, the Agency also has the authority to restrict a waste
earlier than its statutory deadline. Currently, the Agency is planning
to restrict certain Third Third wastes in the June 1989 Second Third rule,
so individual regulations must be cfhecked. "
** If EPA misses the 6 month deadline, the waste will not be restricted under
the LDRs because HSWA contained no hammer provisions for newly identified
wastes.
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Attachment 2
LDR NATIONAL CAPACITY EXTENSIONS FOR CERCIA SOIL AND DEBRIS
Waste Category
Statutory
Deadline
Treatment Standard
Effective Date
Solvent (F001-F005;
Dloxin (F020-F023 and F026-F028)
California list (HOCs)
First Third:
Wastes where BOAT is incineration
Wastes where BOAT is other than incineration
Soft hammer wastes - treatment standard not
set; must meet soft hammer restrictions as of
8/8/88
November 8, 1988
November 8, 1988
November 8, 1988
August 8, 1988
August 8, 1988
August 8, 1988
November 8, 1990*
November 8, 1990*
November 8, 1990*
August 8, 1990*
August 8, 1988**
N/A
* The effective date is based on the granting of a national capacity extension. During the capacity
extension, the soil and debris do not have to meet the promulgated treatment standards. However, if soil
or debris that does not meet the standard is disposed in a landfill or surface impoundment, the receiving
unit must meet the RCRA minimum technology requirements (double liner, leachate collection system, ground
water monitoring).
** Except for K048-K052 and K071, which were granted capacity extensions until August 8, 1990.
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Regional ARARs and LDR Contacts
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USE.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
March 1988 SOLID WASTE AND EMERGENCY RESPONSE
OSWER Dir. #9234.1-03
MEMORANDUM
SUBJECT: Regional ARARs and LDR Contacts
FROM: Henry L. Longest II, Director
Office of Emergency and
TO: Director, Waste Management Division
Regions I, IV, V, VII, VIII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Regions III, VI
Director, Toxic and Waste Management Division
Region IX
Director, Hazardous Waste Division, Region X
Purpose;
The purpose of this memo is to draw your attention to
valuable resources in the Regions on applicable or relevant and
appropriate requirements (ARARs) policy and on RCRA Land Disposal
Restrictions (LDR).
Background:
As you may know, each Region has designated an ARARs contact
person(s) who is responsible for funneling ARARs-related
information of various kinds to Regional staff (see attached
list). My staff works with these Regional representatives to
transmit information and policy developments on ARARs and to
identify problems and questions on ARARs the Regions are facing.
The Regional ARARs contacts are developing expertise on ARARs and
should be a useful resource for Regional staff.
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The Regional ARARs contacts, for example, were participants
in the pilot CERCLA Compliance With Other Laws Workshop and are
supporting ARARs training sessions in their Region. The ARARs
contacts have been participating in the monthly ARARs conference
calls instituted by the Policy and Analysis Staff (PAS) in
October, through which they are receiving and contributing up-to-
date information on ARARs-related issues and activities. We are
pleased that some Regional ARARs contacts have also taken an
active role in ARARs policy development in conjunction with
Headquarters staff. We appreciate their involvement because it
provides us with a valuable perspective.
The development of a Headquarters-Regional "network" on ARARs
is one of several initiatives undertaken in the past year to
provide information on implementing the provision in Section
121(d) of SARA that our remedies comply with ARARs. We have also
developed and made available Part I of the CERCLA Compliance with
Other Laws Manual. which discusses general policy, and RCRA and
water ARARs, and are conducting training in each Region on the
information and policies discussed in the Manual. These efforts
are being made to ensure that Regional personnel understand ARARs
and most importantly follow consistent policies in
implementing the statutory requirement to comply with other laws.
Finally, specific Regional staff are also developing
expertise in perhaps the most significant -- and most complicated
ARAR for Superfund, the RCRA Land Disposal Restrictions (LDR),
through participation on the workgroup for guidance on CERCLA
compliance with LDR. Like the ARARs contacts, these Regional
people are valuable resources for information and current
policies, and will serve as conduits between Headquarters and
Regional offices on RCRA LDR developments.
Obiective:
This memo is to make you aware of the role that the ARARs and
LDR contacts are playing in your Region.
Implementation:
Please support our effort to strengthen the on-going
communication links and inform the appropriate Regional staff of
these resources.
Attachments
cc: Regional Superfund Branch Chiefs
Regional Superfund Section Chiefs
Betti VanEpps, Docket Coordinator
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LIST OF REGIONAL ARARs CONTACTS
Dennis Huebner
Waste Management Division
Region I
FTS-833-1610
Vince Pitruzello
Emer. & Rem. Res. Division
Region II
FTS-264-3984
Pat McManus
Hazardous Waste Division
Region III
FTS-597-3923
Jim Orban
Waste Management Division
Region IV
FTS-257-2643
John Dikinis
Waste Management Division
Region V
FTS-886-7572
Jim McGuire
Hazardous Waste Management Division
Region VI
FTS-255-6715
Bob Feild
Waste Management Division
Region VII
FTS-757-2856
Joni Teter
Office of Regional Counsel
Region VIII
FTS-564-7550
Jean Rice
Office of Regional Counsel
Region IX
FTS-454-8610
Carol Rushin
Hazardous Waste Division
Region X
FTS-399-7151
Guidance on Superfund Compliance with LDRs
Headquarters Workgroup Members
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Regional Contacts for Superfund Compliance with LDR
Dennis Huebner, Chief *
VT, RI, & NH Waste Management Branch
Region I
U.S. Environmental Protection Agency
John F. Kennedy Federal Building
Room 2203
Boston MA 02203
FTS: 835-3626
Art Wing **
Oil and Hazardous Materials Section
Region I
U.S. Environmental Protection Agency
New England Regional Laboratory
60 Westview St.
Lexington MA 02173
ODD: 617-860-4306
George Pavlou, Chief *
NY/CR Remedial Action Branch
Region II
U.S. Environmental Protection Agency
26 Federal Plaza
New York NY 10278
FTS: 264-0106
Marty Powell **
Emergency Response Section (3HW22)
Region III
U.S. Environmental Protection Agency
841 Chestnut Street
Philadelphia PA 19107
FTS: 597-8170
Bob Jordan *
Emergency & Remedial Response Br.
Region IV
U.S. Environmental Protection Agency
345 Courtland Street NE
Atlanta GA 30365
FTS: 257-3931
Rita Ford **
Emergency & Remedial Response Branch
Region IV
U.S. Environmental Protection Agency
345 Courtland Street NE
Atlanta GA 30365
FTS: 257-3931
John Witkowski **
Emergency Response Sec. (2ERD-RPB-SM)
Region II
U.S. Environmental Protection Agency
Raritan Depot - Building 10
Edison NJ 08837
FTS: 340-6739
Craig Brown
RCRA Branch
Region IV
U.S. Environmental Protection
345 Courtland Street NE
Atlanta GA 30365
FTS: 257-????
Agency
Dave Payne
Office of Regional
Region II
U.S. Environmental
26 Federal Plaza
New York NY 10278
FTS: 264-4942
Counsel
Protection Agency
Jim Mayka, Chief *
IA/IN Section (5HS11)
Remedial & Enforcement
Region V
U.S. Environmental Protection
230 Dearborn Street
Chicago 11 60604
FTS: 353-9229
Response Br.
Agency
Patrick McManus *
PA Remedial Support Sec. (3HW21)
Superfund Branch
Region III
U.S. Environmental Protection Agency
841 Chestnut Street
Philadelphia PA 19107
FTS: 597-3923
Bob Bowden **
Emergency & Enforc. Resp.Br. (5HS11)
Region V
U.S. Environmental Protection Agency
230 Dearborn Street
Chicago II 60604
FTS: 886-6236
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Regional Contacts for Superfund Compliance with LDR (cont.)
Jane Lupton
Assistant Regional Counsel
Office of Regional Counsel(5CS-TUB3)
Region V
U.S. Environmental Protection^Agency
230 Dearborn Street
Chicago II 60604
FTS: 886-6609
Diane Spencer
RCRA Permitting Branch (5HR-13)
Region V
U.S. Environmental Protection Agency
230 Dearborn Street
Chicago II 60604
FTS: 886-3740
Gale A. Wright *
Superfund Program Branch
Region VII
U.S. Environmental Protection Agenc
726 Minnesota Avenue
Kansas City KS 66101
FTS: 757-????
Paul Doherty **
Emergency Planning & Response Branc
Region VII
U.S. Environmental Protection Agenc
25 Funston Road
Kansas City KS 66115
FTS: 757-3881
Garrett Bondy *
Superfund Program Branch
Region VI
U.S. Environmental Protection Agency
1445 Ross Avenue
Suite 1200
Dallas TX 75202
FTS: 255-6720
Wally Cooper **
Emergency Response Branch
Region VI
U.S. Environmental Protection Agency
1445 Ross Avenue
Suite 1200
Dallas TX 75202
FTS: 255-2270
Lou Barinka
Superfund Compliance Branch
Region VI
U.S. Environmental Protection Agency
1445 Ross Avenue
Suite 1200
Dallas TX 75202
FTS: 255-6735
Harriet Tregoning
Haz. Waste Compliance Branch (6H3ECE)
Region VI
U.S. Environmental Protection Agency
1445 Ross Avenue
Suite 120G
Dallas TX 75202
FTS: 255-6775
Mike Holmes * **
Emergency Response Branch (8-HWM-EF
Region VIII
U.S. Environmental Protection Agenc
999 18th Street
Suite 500
Denver CO 80202
FTS: 564-7080
Katherine Teeters
Office of Regional Counsel
Region VIII
U.S. Environmental Protection Agenc
999 18th Street
Suite 500
Denver CO 80202
FTS: 564-????
Phil Bobel, Chief *
Superfund Remedial Branch (T-4-A)
Region IX
U.S. Environmental Protection Agenc
215 Fremont Street
San Francisco CA 94105
FTS: 454-8910 ??
Bob Mandel **
Emergency Response Section (T-4-9)
Region IX
U.S. Environmental Protection Agenc
215 Fremont Street
San Francisco CA 94105
FTS: 454-8927
-------
Regional Contacts for Superfund Compliance with LDR (cont.)
Jean Rice
Assistant Regional Counsel
Office of Regional Counsel (ORC)
Region IX
U.S. Environmental Protection Agency
215 Fremont Street
San Francisco CA 94105
FTS: 454-8610
Julia Bussey
Superfund Enforcement Branch
Region IX
U.S. Environmental Protection Agency
215 Fremont Street
San Francisco CA 94105
FTS: 454-9383
Judi Schwarz *
Superfund Branch (HW-113)
Region X
U.S. Environmental Protection'Agency
1200 Sixth Avenue
Seattle WA 98101
FTS: 399-2684
John Sainsbury **
Superfund Resp.& Invest.Sec.(HW-113)
Region X
U.S. Environmental Protection Agency
1200 Sixth Avenue
Seattle WA 98101
FTS: 399-1196
= lead contact for remedial prgm,
= lead contact for removal prgm.
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Land Disposal Restrictions as
Relevant and Appropriate Requirements
for CERCLA Contaminated Soil and Debris
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
501.
OSWER Directive No. 9347.2-01
MEMORANDUM
SUBJECT: Land Disposal Restrictions as Relevant and Appropriate
Requirements for CERCLA contaminated Soil and Debris
FROM: Henry L. Longest II, Director M/ *^-^**w (A/-
Office of Emergency and Remedial Response
TO
Bruce M. Diamond, Directojr]
Office of Waste Programs Enforcement
Directors, Waste Management Division
Regions I, IV, V, VII, VIII
Director, Emergency and Remedial Response Division
Reg ion II
Directors, Hazardous Waste Management Division
Regions III, VI
Director, Toxic and Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
PURPOSE
To transmit OSWER policy on the relevance and appropriateness
of the Land Disposal Restrictions (LDRs) to CERCLA responses
involving contaminated soil and debris.
BACKGROUND
As clarified in OSWER Directive 9347.1-02 (see attachment),
the LDRs are applicable to CERCLA responses only when such actions
constitute placement of a restricted RCRA waste. Therefore, if no
restricted RCRA wastes are identified in a Superfund waste that is
being placed, the LDRs would not be applicable. Site-specific
questions have arisen, however, as to the relevance and
-------
2
appropriateness of the LDRs to soil and debris that do not contain
RCRA restricted wastes. In particular, Region II (having
determined that the contaminated soil and debris to be treated and
"placed" at the 93rd Street site did not contain RCRA hazardous
wastes) sought consultation with Headquarters on whether LDRs
should be considered relevant and appropriate given that the
Agency is in the process of developing treatment standards for soil
and debris wastes separate from the treatment standards developed
for industrial process wastes.
OSWER POLICY
OSWER has concluded that until a rulemaking is completed that
establishes treatment standards for soil and debris, the LDRs
generally should not be considered as relevant and appropriate for
soil or debris that does not contain restricted RCRA wastes. The
following language should be incorporated into feasibility study
ARAR discussions, proposed plans, and the "Compliance with ARARs"
section of future RODs for situations similar to the above example:
The Agency is undertaking a rulemaking that will
specifically apply to soil and debris. Since that
rule'raaking is not yet complete, EPA does not consider -LDR
to be relevant and appropriate at this site to soil and
debris that does not contain RCRA restricted wastes.
Should you have any questions regarding this policy, please
contact your Regional Coordinators in the Hazardous Site Control
Division, the CERCLA Enforcement Division, or Steve Golian (FTS
475-9750) in the Site Policy and Guidance Branch.
Attachment
cc: Sylvia Lowrance, OSW
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Applicability of Land Disposal Restrictions to
RCRA and CERCLA Ground Water Treatment Reinjection
Superfund Management Review:
Recommendation No. 26
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
owe o*
SOUO WASTE AND EMERGENCY RESPONSE
DEC! 27 'c29 OSWER Directive * 9234.1-06
MEMORANDUM
SUBJECT: Applicability of Land Disposal Restrictions to
RCRA and CERCLA Ground Water Treatment Reinjection
Superfund Management Review: Recommendation No. 24
FROM: Don R. Clay, Assistant Administrator t^^/i^ ^r"*
Office of Solid Waste and Emergency Response X^/
TO: Waste Management Division Directors
Regions I - X.
Regional Counsel
Regions I - X.
purpose
There has been some question as to whether ground water
contaminated with restricted RCRA hazardous wastes, which is
extracted during a RCRA corrective action or CERCLA response
action, must meet the best demonstrated available technology
(BOAT) identified for that waste under the RCRA land disposal
restrictions (LDRs) prior to each reinjection, in a pump-and- treat
reinjection remediation system. (See RCRA sections 3004 (f), (g)
and (m) , and 40 C.F.R. Parts 148 and 268.) This memorandum
explains EPA's interpretation of whether the LDRs are applicable
or (under CERCLA response actions only) relevant and appropriate
to such reinjections or to the remediation as a whole.
RCRA LDRs prohibit land disposal of restricted RCRA hazardous
wastes that do not meet treatment . standards after the effective
date of the restrictions. Treatment standards for RCRA hazardous
wastes are based upon the best demonstrated available technology
(BOAT) identified for that waste. See 40 C.F.R. 268. Because
placement of hazardous waste into underground injection wells
constitutes "land disposal" under LDR (see RCRA section 3004{>)),
and the ground water undergoing reinjection may contain a
restricted waste, the issue has been raised as to whether each
reinjection of contaminated ground water should meet BOAT during
response or corrective actions.
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RATIONALE
Ground water restoration under RCRA corrective actions and
CERCLA response actions often involves withdrawal, treatment of
the contaminated water, and reinjection of the treated water into
the ground. The land disposal restrictions (LDR) of the Resource
Conservation and Recovery Act (RCRA) prohibit land disposal of
restricted RCRA hazardous wastes that do not meet treatment
standards after the effective date of the restrictions. Treatment
standards for RCRA hazardous wastes are based upon the best
demonstrated available technology (BDAT) identified for that
waste. Sfifl 40 C.F.R. 268. Because placement of hazardous waste
into underground injection wells constitutes "land disposal" under
LDR (figfi RCRA section 3004(k)), and the ground water undergoing
reinjection may contain a restricted waste, the issue has been
raised as to whether each reinjection of contaminated ground water
should meet BDAT during response or corrective actions.1
Section 3020 of RCRA [previously section 70102] specifically
addresses waste injection in the context of CERCLA and RCRA
cleanups. RCRA section 3020(a) bans hazardous waste disposal by
underground injection into or above an underground source of
drinking water (within one-quarter mile of the well). However,
RCRA section 3020(b) exempts from the ban all reinjections of
treated contaminated ground Water into such formations undertaken
as part of a CERCLA section 104 or 106 response action, or a RCRA
corrective action. To qualify for the exemption, the following
three conditions must be met: (1) the injection is a CERCLA
response action or a RCRA corrective action, (2) the contaminated
ground water must be treated to substantially, reduce hazardous
constituents prior to such injection, and (3) the response action
or corrective action must be sufficient to protect human health
and the environment upon completion.
Although RCRA section 3020 and the LDR provisions at RCRA
sections 3004(f), (g) and (m) arguably can address the same.
activity, RCRA section 3020 specifically applies to all CERCLA and
1 CERCLA remedial actions are required to meet Federal
requirement* and standards at completion of the remedial action if
the Federal standards are applicable or relevant and appropriate
requirements (ARARs), absent invocation of a statutory waiver.
See CERCLA section 121(d). Agency policy and the proposed
National Contingency Plan (NCP) require the Agency to comply with
all ARARs pertinent to the action during the course of a remedial
action, as well as upon its completion. See the proposed NCP
(published at 53 Fed. Reg. 51,394 (Dec. 21, 1988) (to be codified
at 40 C.F.R. 300.435(b)(2)), and CERCLA Compliance with Other Laws
Manual; Part 1. 1-8 (OSWER Directive number 9234.1-01, August 8,
1988) .
2 RCRA section 3020 was section 7010 in the Hazardous and
Solid Waste Amendments of 1984, but was re-numbered in 1986.
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RCRA ground water treatment reinjections into Class IV injection
wells.3 Consistent with traditional principles of statutory
construction, RCRA section 3020 which is directly focused on
injections of treated contaminated ground water into Class IV
wells during cleanups should be controlling for such
injections; a contrary reading would render section 3020(b)
meaningless. Where Congress has provided two potentially
applicable statutory provisions, a choice between them is both
necessary and appropriate, and within the discretion of the expert
agency. Accordingly, EPA construes the provisions of RCRA section
3020 to be applicable instead of LDR provisions at RCRA sections
3004(f), (g), and (m), to reinjections of contaminated ground
water into an underground source of drinking water (USDW), which
are part of a CERCLA response action or RCRA corrective action.
As a result, the three conditions of RCRA section 3020(b)
must be met during response or corrective actions involving
ground water treatment reinjection into or above underground
sources of drinking water. Failure to meet these conditions bans
the activity under RCRA section 3020(a).^ First, the injections
must be part of a CERCLA response action or a RCRA corrective
action. Second, each reinjection has to be treated to
"substantially reduce hazardous constituents prior to such
injection..." (RCRA section 3020(b)). Until guidance is prepared
addressing the issue, steps necessary to "substantially reduce"
hazardous constituents during a RCRA corrective action or a CERCLA
response action should be decided on a case-by-case basis. Third,
the response or corrective action upon completion must "be
sufficient to protect human health and the environment" (RCRA
section 3020(b)). RCRA and CERCLA statutes, regulations and
policies should be reviewed to determine protectiveness.
The issue may also arise under CERCLA as to whether LDRs are
relevant and appropriate requirements when treated ground water is
reinjected into Class IV wells as part of a CERCLA response
action. In order to be considered to be both "relevant" and
"appropriate," a requirement must address problems or situations
similar to the circumstances of the release or remedial action
contemplated, and be well-suited to the site. A key factor in
determining the potential relevance and appropriateness of a
3 Class IV injection wells are used to inject contaminated
ground water into or above an underground source of drinking
water. See 40 C.F.R. 146.5(d). In most situations, ground water
treatment reinjection involves only Class IV injection wells
because treated ground water is recharged back into an
underground source of drinking water (USDW) during pump-and-treat
activities, not beneath it. Other classes of wells are not
subject to section 3020's special provisions.
4 Note, however, that an ARARs waiver may be appropriate in
certain cases for actions taken under CERCLA.
-------
requirement is to compare the CERCLA response objective with the
purpose and objective of the requirement. See "CERCLA Compliance
with Other Laws Manual" at p. 1-65 (EPA, August 8, 1988); proposed
NCPf. 53 FR at 51436 (Dec. 21, 1988) (proposed section
300.400(g)(2)).
The ultimate purpose of treating and reinjecting ground water
into Class IV wells is to restore the formation to drinking water
quality. EPA believes that standards that have been specifically
developed to establish drinking water quality levels (such as
MCLs5) are particularly well-suited to the accomplishment of that
purpose. Although LDRs also prescribe treatment levels, those
levels were not specifically developed to achieve drinking water
quality (although they may often have that result). Thus, where
drinking water standards are available, the Agency believes that
they will generally be the relevant and appropriate requirement to
use in setting treatment standards for CERCLA cleanups of drinking
water formations.
In situations where no drinking water standard has been
promulgated for the contaminants to be treated, the Region should
consider potentially relevant and appropriate requirements
(including any available health-based standards, LDR treatment
standards, etc.) and attain the standard, if any, that the Agency
finds is "relevant and appropriate under the circumstances of the
release" (or justify a waiver).6 EPA guidance sets out a number
of factors for deciding if a requirement is relevant and
appropriate under the circumstances of the release. See CERCLA
Compliance with Other Laws Manual, at p. 1-67.
NOTICE: The policies set out in this memorandum are intended
solely for the guidance of Government personnel. They are not
intended, nor can they be relied upon, to create any rights
enforceable by any party in litigation with the United states.
EPA officials may decide to follow the guidance provided in this
memorandum, or to act at variance with the guidance, based on an
analysis of specific site circumstances. The Agency also reserves
the right to change this guidance at any time without public
notice.
5 See the discussion of MCLs and MCLGs in the proposed and
final NCP.
6 If no such standards are relevant and appropriate, TBCs may
be used as cleanup levels; use of a TBC should be explained and
justified for each specific case.
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Separate from the restrictions found in RCRA LDRs, an
independent provision of the statute, RCRA Section 3020, bans
hazardous waste injection into drinking water formations (Class IV
injection wells), unless the conditions in subpart (b) are met.
Subpart (b) permits reinjection of contaminated ground water that
has been treated if: (1) the injection is a CERCLA response action
or a RCRA corrective action, (2) the contaminated ground water is
treated to substantially reduce hazardous constituents prior to
each injection, and (3) the response action or corrective action
is sufficient to protect human health and the environment upon
completion. (See RCRA section 3020(b).)
Resolution
For the reasons specified in the attachment to this
memorandum, LDR is not applicable to these activities. Instead of
LDR, RCRA section 3020 applies to reinjection of treated
contaminated ground water into Class IV injection wells during
CERCLA response actions or RCRA corrective actions. Moreover, for
CERCLA response actions where the goal is to clean up ground water
to drinking water levels, the Agency believes that health-based
drinking water standards (e.g. MCLs) 'rather than LDRs will
generally be the relevant and appropriate cleanup standard. See
the attachment.
Until guidance addresses the issue, what is required to
"substantially reduce" hazardous constituents prior to each
injection in a CERCLA response action or RCRA corrective action
should be determined on a case-by-case basis. RCRA and CERCLA
program policies and guidance should be reviewed to determine
protectiveness upon completion of the action.
Attachment
cc: CERCLA and RCRA Branch Chiefs
Office of Drinking Water
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Superfund LDR Guide #1
Overview of RCRA Land Disposal Restrictions
-------
dEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Supertund Publication:
9347.3-O1FS
July 1989
Superfund LDR Guide #1
Overview of RCRA
Land Disposal Restrictions
(LDRs)
The Hazardous and Solid "Waste Amendments (HSWA) to the Resource Conservation and Recovery Act (RCRA)
- - P.L. 98-616, signed on November 8, 1984 - - include specific provisions restricting the land disposal of RCRA
hazardous wastes. The purpose of these HSWA provisions is to minimize the potential of future risk to human health
and the environment by requiring the treatment of hazardous wastes prior to their land disposal This guide
summarizes the major components of the land disposal restrictions (LDRs), outlines the types of restrictions
imposed, and presents the compliance options specified in the regulation. Other Superfund LDR Guides are listed
at the end of this guide. More detailed guidance on Superfund compliance with the LDRs is being prepared by the
Office of Solid Waste and Emergency Response (OSWER).
DEFINITION OF LAND DISPOSAL
The LDRs place restrictions on the land disposal
of RCRA hazardous wastes. The definition of land
disposal (or "placement," which is synonymous with
"land disposal") under RCRA includes, but is not
limited to:
any "placement" of hazardous waste in a landfill,
surface impoundment, waste pile, injection well,
land treatment facility, salt dome formation, salt
bed formation, underground mine or cave, and
concrete bunker or vault. (RCRA §3004(k))
The LDRs apply only to RCRA hazardous wastes
that are land disposed or placed. They do not apply
to wastes that are discharged to surface waters (where
National Pollutant Discharge Elimination System
(NPDES) requirements apply) or to Publicly Owned
Treatment Works (where pretreatment requirements
apply). The LDRs also do not apply to contaminated
ground water treated and supplied directly to
households (where Maximum Contaminant Levels
(MCLs) generally apply).
It is important to note that the LDRs apply
prospectively to wastes that are land disposed after the
effective date of the restrictions (i.e., the LDRs do
not require that wastes land disposed prior to the date
of the restrictions be removed and treated).
STATUTORY DEADLINES
HSWA directed EPA to establish treatment
standards for each of seven groups of RCRA
hazardous wastes by specific dates. These dates,
referred to as statutory deadlines, will eventually
restrict land disposal of all RCRA hazardous wastes,
as shown in Highlight 1.
Highlight 1: LDR STATUTORY DEADLINES
Waste
Spent Solvent and Diorin-
Containing Wastes
California List Wastes
Fust Third Wastes
Spent Solvent, Dioxin-
Coataining, and California
List SoO and Debris From
CERCLA/RCRA Corrective
Actions
Second Third Wastes
Third Third Wastes
Newly Identified
Wastes
Statutory Deadline
November 8, 1986
July 8, 1987
August 8, 1988
November 8, 1988
June 8, 1989
MayS, 1990
Within 6 months of
identification as a
hazardous wa&lc
Printed on recycled Paper
-------
The statutory deadlines are important because they
are the dates on which RCRA wastes become
"restricted," although EPA has the authority to restrict
a waste before its statutory deadline. For example, the
Agency has restricted certain Second Third wastes in
the First Third rule and certain Third Third wastes hi
the June 1989 Second Third rule.
STATUTORY WASTE CATEGORIES
The first category of wastes (refer to Highlight 1)
includes: the F001-F005 spent solvent-containing RCRA
wastes and the F020-F023 and F026-F028 dioxin-
containing RCRA wastes. The second category, the
California list wastes, is a distinct category of RCRA
hazardous wastes described further in Superfund LDR
Guide #2. The three categories of scheduled wastes
(i.e., First Third, Second Third, Third Third wastes)
include all listed and characteristic hazardous wastes
identified as of November 8, 1984 (excluding the
solvent and dioxin wastes mentioned above). EPA
ranked the scheduled wastes based on their toxicity
and volume and placed the highest toxicity/volume
wastes in the "First Third." Soil and debris (see
Highlight 2) contaminated with spent solvent- or
dioxin-containing and California list wastes generated
during CERCLA response and RCRA corrective
actions were given a separate statutory deadline.
Finally, wastes newly identified or listed after 1984
must have standards set within six months of their
identification or listing as a hazardous waste.
Highlight 2: DEFINITIONS OF SOIL AND
DEBRiS
Soil is defined as materials that are
primarily of geologic origin such as sand, silt,
loam, or clay that are indigenous to the natural
geological environment at or near the
CERCLA site. (In many cases, soil is mixed
with liquids, sludges, and/or debris.)
Debris is defined as materials that are
primarily non-geologic in origin such as grass,
trees, stumps, and man-made materials such as
concrete, clothing, partially buried whole or
empty drums, capacitors, and other synthetic
manufacturing items, such as liners. (It does
not include synthetic organic chemicals, but
may include materials contaminated with these
chemicals.)
TYPES OF LDR RESTRICTIONS
As discussed above, a RCRA hazardous waste
becomes "restricted" under the LDRs on its statutory
deadline (or earlier if EPA promulgates the restriction
ahead of schedule). On that date, one of four types of
restrictions will apply:
1. Treatment standards: EPA may set one of three
types of treatment standards for restricted wastes:
A concentration level to be achieved prior to
disposal (the most common type of treatment
standard);
A specified technology to be used prior to
disposal; or
A "no land disposal" designation when the
waste is no longer generated, is totally recycled,
is not currently being land disposed, or no
residuals are produced from treatment.
All three types of treatment standards are
established based on the best demonstrated available
technology (BDAT) identified for that waste.
2. Minimum technology requirements during a national
capacity extension: When EPA sets a treatment
standard, it may grant a national capacity extension
(for up to two years) if sufficient treatment capacity
is not available for that waste. During a national
capacity extension, the treatment standards set for
a waste do not have to be met. However, if wastes
that do not meet the standards are disposed of in
a landfill or surface impoundment, the receiving unit
must meet the RCRA minimum technology
requirements (i.e., double liner, leachate collection
system, and ground-water monitoring).
When EPA sets treatment standards for Third Third
wastes in May 1990, it may grant a national capacity
extension, but only for up to two years. Therefore,
by May 1992, all national capacity extensions will
have expired. The only exception may be if EPA
grants an extension when it sets treatment standards
for newly identified wastes. Superfund LDR Guide
#3 provides additional information on the minimum
technology requirements.
3. Soft hammer restrictions: If EPA fails to set a
treatment standard for a First or Second Third
-------
waste by its statutory deadline, soft hammer
restrictions apply. The soft hammer requirements
place the following restrictions on the disposal of
wastes in landfills and surface impoundments:
The receiving unit must meet minimum
technology requirements; and
Site managers (OSCs, RPMs as generators)
must determine if treatment is practically
available. If treatment is practically available, the
site manager must use the best practically
available treatment to treat wastes before
disposal; if treatment is not practically available,
the wastes may be disposed of without
treatment.
Land disposal in other types of units, such as land
treatment units and waste piles, is not restricted
under soft hammers, although an LDR notification
will be required for actions involving off-site
disposal in such units.
Soft hammer restrictions remain in effect until
EPA sets a treatment standard, or until May 1990,
when the hard hammer restrictions become
effective.
4. Hard hammer restrictions: If EPA fails to set a
treatment standard by the statutory deadlines for
solvent- and dioxin-containing and California list
wastes, or by May 8, 1990, for any of the scheduled
wastes, the hard hammer restrictions prohibit all
land disposal of the affected waste until a
treatment standard is promulgated. To date, the
hard hammer has only fallen for certain California
list wastes.
Superfund LDR Guide #4 provides more
information on soft and hard hammer restrictions.
LDR COMPLIANCE OPTIONS
EPA recognizes that not all wastes can be treated
to the LDR treatment standards and that alternative
treatment standards and methods of land disposal may
provide significant reduction in the toxicity, mobility, or
volume of wastes and be protective of human health
and the environment. The LDRs, therefore, provide
the following compliance options to meeting the
restrictions discussed above.
Treatabilitv Variance: This option is available when
EPA has set a treatment standard as a
concentration level, but because a generator's waste
differs significantly from the waste used to set the
standard, the promulgated treatment standard cannot
be met or the BDAT technology is inappropriate for
that waste. (For the purposes of the LDRs,
CERCLA site managers are considered generators
of hazardous waste.) Under a Treatability Variance,
EPA approves an alternate treatment standard that
must be met before that waste can be land
disposed. Superfund LDR Guides #6A and #6B
provide more information for obtaining Treatability
Variances for remedial and removal actions.
Equivalent Treatment Method Petition: This option
is available when EPA has set a treatment standard
that is a specified technology (e.g., incineration).
Generators may use a different technology (e.g.,
chemical treatment) if they can demonstrate that
this technology will achieve a measure of
performance equivalent to that of the specified
technology.
No Migration Petition: This option may be used to
meet any of the four types of LDR restrictions.
Under this option, generators may land dispose
wastes that do not meet the LDR restrictions if
they can demonstrate that there will be "no
migration" of hazardous constituents above health-
based levels from the disposal unit or injection zone
for as long as the wastes remain hazardous.
Delisting. This option may be used to demonstrate
that a waste is nonhazardous and, therefore, not
subject to any of the RCRA Subtitle C hazardous
waste regulations, including the LDRs. Delisting
only applies when the CERCLA waste is a listed
RCRA hazardous waste. (Characteristic wastes
need not be delisted, but they can be treated to no
longer exhibit the characteristic.) Generators must
demonstrate that: (1) the waste does not meet any
of the criteria for which the waste was listed as a
hazardous waste, and (2) other factors (including
additional constituents) do not cause the waste to
be hazardous.
The LDRs also permit a case-by-case extension of
up to two years, which allows a site-specific extension
of the effective date if a generator has a binding
contractual commitment for treatment capacity and can
show that no capacity currently exists anywhere in the
United States. This option, however, is generally not
appropriate for Superfund response actions.
SOIL AND DEBRIS WASTES
As discussed earlier, the LDRs apply to soil and
debris when they are contaminated with a restricted
RCRA hazardous waste. Because of the complex
-------
nature of many soil and debris matrices (as compared
with the industrial process wastes upon which the LDR
treatment standards were based), it may be difficult to
meet these standards for wastes mixed with soil and
debris. Consequently, the Agency is undertaking a
rulemaking that will set LDR treatment standards
specifically for soil and debris. Until that rulemaking
is completed, however, site managers may need to
obtain a Treatability Variance for actions addressing
contaminated soil and debris.
OTHER LDR REQUIREMENTS
In addition to the four types of restrictions
described above, the LDRs also include the following
requirements:
Storage Prohibition: The LDRs prohibit the
storage of restricted wastes (including soft hammer
wastes) unless storage is solely for the purpose of
accumulating sufficient quantities of wastes to
facilitate proper treatment, recovery, or disposal.
For periods of up to one year, the burden is
generally on EPA to prove that storage is not
needed to facilitate proper treatment, recovery, or
disposal; after one year, the burden of proof shifts
to the storage facility. Temporary storage used
during CERCLA actions to facilitate proper
disposal (e.g., storage while awaiting sampling
results, or while selecting and designing a remedy)
is allowable under the storage prohibition.
Exemption for Treatment in Surface
Impoundments: Placing untreated wastes in surface
impoundments (that meet the minimum technology
requirements) for treatment is permissible, provided
the treatment residues that do not meet the LDR
treatment standards or prohibition levels are
removed for subsequent management (through any
treatment other than treatment in another surface
impoundment) within one year of placement into
the surface impoundment.
Dilution Prohibition: Dilution of a waste as a
means to comply with the LDRs is prohibited.
However, "dilution" that is part of treatment (e.g.,
mixing for immobilization) is permissible.
The LDRs also establish requirements for testing,
notification, and certification of compliance.
Testing: Once it is determined that a waste is
restricted under the LDRs, generators, treatment
facilities, or disposal facilities must test the waste
at a frequency specified in the facility's waste
analysis plan to demonstrate compliance with LDR
treatment standards or California list prohibition
levels prior to land disposal.
Notification: All restricted wastes that are shipped
to an off-site treatment, storage, or disposal facility
must be accompanied by a notification that includes
the EPA hazardous waste number and the
applicable LDR restriction that is in effect for those
wastes.
Certification: A treatment facility must certify that
the LDR treatment standards are attained before a
restricted waste is land disposed off-site. (There are
also certification requirements specifically for soft
hammer wastes; see Superfund LDR Guide #4.)
OTHER AVAILABLE SUPERFUND/LDR
GUIDES
#2 Complying with the California List
Restrictions Under LDRs
#3 Treatment Standards and Minimum
Technology Requirements Under LDRs
#4 Complying With the Hammer Restrictions
Under LDRs
#5 Determining When LDRs are Applicable
to CERCLA Response Actions
#6A Obtaining a Soil and Debris Treatability
Variance for Remedial Actions
#6B Obtaining a Soil and Debris Treatability
Variance for Removal Actions*
#7 Determining When LDRs Are Relevant
and Appropriate to CERCLA Response
Actions*
*Currently being prepared in OSWER
-------
Super fund LDR Guide #2
Complying with California List Restrictions Under
Land Disposal Restrictions
-------
&EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Superfund Publication:
9347.3-O2FS
July 1989
Superfund LDR Guide #2
Complying With the California
List Restrictions Under Land
Disposal Restrictions (LDRs)
The Hazardous and Solid Waste Amendments (HSWA) to the Resource Conservation and Recovery Act (RCRA)
include specific restrictions on the land disposal of RCRA hazardous wastes. California list wastes are a distinct
category of RCRA hazardous wastes that are restricted under the land disposal restrictions (LDRs). This guide
deflnes the California list wastes, summarizes their respective restrictions, and discusses their potential overlap with
other LDR treatment standards. More detailed guidance on California list waste restrictions and iuperfund
compliance with the LDRs is being prepared by the Office of Solid Waste and Emergency Response (OSWER).
DEFINITION OF CALIFORNIA LIST WASTES
v
.'? To be classified as a California list waste, three
'./ conditions must be met:
(1) The waste must be a RCRA listed or characteristic
waste:
(2) The waste must be a liquid (i.e., it fails method
9095 Paint Filter Liquids Test [PFLT]), except for
Halogenated Organic Compounds (H.OCs). which
may be liquid or non-liquid; and
(3) The waste must exceed statutory prohibition levels
for specified constituents.
The types of wastes that may be California list
wastes are: free cyanides, certain metals, corrosive
wastes, PCBs, and HOCs. (HOCs are compounds
containing carbon and a halogen, such as fluorine,
chlorine, bromine, iodine, and astatine, in their
molecular formula). The Agency has limited the
restricted HOCs to approximately 100 HOCs listed in
Appendix HI to 40 CFR Part 268. These restricted
HOCs include solvents, pesticides, PCBs, and dioxins.
These hazardous wastes are referred to as
California list wastes because the State of California
developed regulations to restrict the land disposal of
';.. wastes containing these constituents, and Congress
; subsequently incorporated these provisions into the
1984 HSWA amendments to RCRA. Even if LDR
treatment standards have not been promulgated for
certain RCRA wastes (e.g., Third Third wastes), these
wastes may be subject to California list restrictions.
If the Agency has promulgated a treatment srandard
for a California list hazardous waste, the waste must
attain that treatment standard before land disposal. If
the Agency has not set a treatment standard, the waste
must be treated to below the prohibition level (or
rendered non-liquid if a non-HOC waste) before it
may be land disposed.
CALIFORNIA LIST LDR RESTRICTIONS
The Agency has promulgated treatment standards
for PCB-cont.aining wastes ard HOC-containing wastes
(except for dilute HOC wastewaters). The treatment
standards for PCBs and some HOCs became effective
on July 8, 1987.
The Agency has not set treatment standards for
the remaining California list wastes. Instead, the
Agency codified the statutory prohibition levels for
corrosive wastes and dilute HOC wastewaters and
allowed the hard hammer provisions to take effect for
free cyanides and California list metals. The
prohibitions on these wastes became effective on July
8, 1987. The effects of these restrictions are the same:
prob-ib'ting the land disposal of these wastes above the
prohibition levels.
Based on a finding of inadequate treatment capacity,
EPA granted a nationwide extension to the effective
date for treating California list HOC wastes until July
8, 1989. The Agency subsequently rescinded the
variance, and the restriction for HOC wastes became
effective November 8, 1988. The Agency also granted
Printed on RtcycUd Paper
-------
an extension of the effective date for HOC-containing
soil and debris wastes until July 8, 1989, for soil and
debris wastes not from CERCLA/RCRA corrective
actions, and until November 8, 1990, for soil and debris
wastes from CERCLA/RCRA corrective actions.
California list wastes granted a national capacity
variance from the treatment standards may be disposed
of in a landfill or surface impoundment only if the
receiving unit complies with minimum technology
requirements (See Superfund LDR Guide #3). The
prohibition levels, treatment standards, and effective
dates for the California list wastes are presented in
Highlight 1.
OVERLAP WITH OTHER TREATMENT STANDARDS
As noted earlier, wastes must be RCRA listed or
characteristic wastes to be California list wastes.
Therefore, California list wastes may also be restricted
as solvent- or dioxin-containing wastes or as scheduled
wastes. For wastes covered by more than one LDR
standard, the LDR restrictions for the more specific
waste stream generally take precedence, once the
standard is promulgated. For example, F006 non-
wastewaters may be restricted under the California list
rule because the waste is a liquid and may contain
nickel above the statutory prohibition level. The F006
treatment standard, which is expressed as a
concentration level, however, takes precedence over the
California list restriction (i.e., codified prohibition
level).
The Agency has determined that soft hammer
wastes and wastes for which national capacity variances
have been granted remain subject to California list
prohibitions (i.e., if either of these waste types is
subject to a California list treatment standard or
statutory prohibition level, that treatment standard or
statutory level must be met before the waste can be
land disposed). If a California list treatment standard
is promulgated for a soft hammer waste, the more
stringent of the restrictions apply. For example, if a
non-liquid soft hammer waste contains 1,100 mg/kg
total HOCs, the waste must meet the California list
treatment standard of incineration or burning in a
boiler or industrial furnace before land disposal. If a
liquid soft hammer waste contains 510 mg/1 lead (for
which no California list treatment standard exists), the
soft hammer restrictions apply. If treatment is not
available, the waste must at least be treated below the
prohibition level (i.e., 500 mg/1) or rendered non-liquid
and can only be disposed of in a surface impoundment
or landfill if the receiving unit meets minimum
technology requirements or has an equivalent waiver.
Highlight 1 - PROHIBITION LEVELS AND TREATMENT STANDARDS
FOR CALIFORNIA LIST WASTES
California List
Constituent
Prohibition Level
Treatment Standard
Effective Date
Free Cyanides
Metals
Arsenic
Cadmi'^n
Chromium VI
Lead
Mercury
Nickel
Selenium
Thallium
Corrosives
PCBs
^ 500 ppm
> 50 ppm and < 500 ppm
1000 mg/1
500 mg/1
100 mg/1
500 mg/1
500 mg/1
20 mg/1
13<. mg/1
100 mg/1
130 mg/1
pH < 2.0
50 ppm
50 ppm
Halogenated Organic Compounds (HOCs)
1000 mg/kg
Dilute Wastewaters
(<10.000 mg/kg)
Non-Dilute Wastewaters
and Non-Liquids
Non-RCRA/CERCLA Soil
and Debris
RCRA/CERCLA Soil and
Debris
1000 mg/kg
1000 mg/kg
1000 mg/kg
NONE -- hard hammer
NONE -- hard hammer
NONE -- Codified
prohibition levels
INCINERATION as speci-
fied under TSCA,
99.9999* ORE
INCINERATION OR THERMAL
DESTRUCTION in Boiler,
99.9999% DRE
NONE -- Codified
prohibition levels
INCINERATION 99.991 DRE
July 8, 1987
July 8, 1987
July 8, 1987
July 8, 1987
July 8, 1987
July 8, 1987
Nov. 8, 1988
INCINERATION 99.99Z DRE July 8, 1989
INCINERATION 99.99Z DRE Nov. 8, 1990
-------
Superfund LDR Guide #3
Treatment Standards and Minimum
Technology Requirements Under
Land Disposal Restrictions
-------
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Superfund Publication-
9347.3-O3FS
July 1989
AEPA Superfund LDR Guide #3
Treatment Standards and
Minimum Technology
Requirements Under Land
Disposal Restrictions (LDRs)
CERCLA section 121(d)(2) requires that Superfund response actions comply with other environmental laws that
are applicable or relevant and appropriate requirements (ARARs). A potential ARAR for CERCLA responses is
the Resource Conservation and Recovery Act (RCRA) land disposal restrictions (LDRs) established under the
Hazardous and Solid Waste Amendments (HSWA). The LDRs prohibit the land disposal of restricted RCRA
hazardous wastes unless these wastes meet treatment standards specified in 40 CFR Part 268, meet the minimum
technology requirements during a national treatment capacity extension, or satisfy the requirements of one of the other
available compliance options (i.e., Treatability Variance, Equivalent Treatment Method Petition, No Migration Petition,
or Delisting). This guide summarizes the types and effective dates of treatment standards and outlines how to
comply with the treatment standards and the minimum technology requirements set during national capacity
extensions. More detailed guidance on Superfund compliance with the LDRs is being prepared by the Office of Solid
Waste and Emergency Response (OSWER).
TYPES OF TREATMENT STANDARDS
EPA has established treatment standards under
the LDRs on the basis of the best demonstrated
available technology (BDAT) rather than risk-based
or health-based standards. "Best" is defined as that
technology which offers the greatest reduction (based
on a statistical analysis) of toxicity, mobility, or volume
of the waste. To be "demonstrated." a treatment
technology must be demonstrated to work at a full-
scale level (i.e., technologies available only on a pilot-
or bench-scale are not considered demonstrated). To
be "available." a treatment technology must be
commercially available.
Within this framework, the Agency has established
three types of LDR treatment standards:
Concentration levels -- which must be attained
before the wastes or treatment residuals may be
laud disposed;
Specified technologies which must be applied to
the waste before the residuals may be land
disposed; and
No land disposal which prohibits land disposal
of certain restricted hazardous wastes.
Concentration Levels
The majority of the LDR treatment standards
promulgated to date are concentration levels. For
wastes with treatment standards expressed as
concentrations, any technology that can achieve the
required levels may be used unless the technology is
otherwise prohibited (i.e., the BDAT used by EPA to
set the standards need not be used).
To establish a concentration level(s) for a specific
waste code (e.g., K062), the Agency selects a subset of
the hazardous constituents found, in the waste (known
as "BDAT constituents") and sets treatment standards
for each of these constituents. Although these wastes
may contain additional constituents, only the treatment
standards for the "BDAT constituents" must be met
before the wastes can be land disposed. The residues
from treatment of an originally listed waste (e.g., ash,
scrubber water) are also listed RCRA hazardous wastes
(because of the "derived from" rule), and therefore,
also are prohibited from land disposal unless they meet
treatment standards for the waste code(s) of the
original listed waste(s) from which they derive.
EPA has promulgated separate standards for
wastewaters and nonwastewaters for treatment
standards expressed as concentration levels. For LDRs,
wastewaters normally are defined as wastes containing
lc« than one percent total organic carbon (TOC) and
less than one percent total suspended solids. All other
materials (including soil and debris) are classified as
nonwastewaters, except for F001-F005 wastes, for which
only the TOC is used to define wastewaters.
Concentrations of BDAT constituents in solid
residues from treatment must not exceed the
-------
nomvastewater concentrations. Similarly, the
concentration of BOAT constituents in wastewaters
from treatment (e.g.. incineration scrubber water) must
not exceed the wastewater concentrations. Highlight 1
provides an example of standards expressed as
concentration levels for K062 waste.
Highlight 1 - TREATMENT
STANDARDS FOR K062 WASTE
Constituenl
Nonwastewater
Total chromium
Lead
Wastewater
Total chromium
Nickel
Lead
Treatment
Total Waste
(mg/ke)
NA
NA
0.32
0.44
0.04
Standard
TCLP
_Jmg/l)
0.094
0.37
NA
NA
NA
K062 waste is spent pickle liquor generated by
the steel finishing operations of facilities
within the iron and steel industry.
Specified Technologies
If a treatment standard is promulgated as a
specified technology, that technology must be used to
treat the waste unless an Equivalent Treatment Method
Petition is approved by the Administrator. To be
granted, such a petition must demonstrate that the
alternative technology achieves an equivalent measure
of performance. For example, the Agency has set the
treatment standard for California list PCB wastes
containing greater than 500 ppm PCBs as thermal
destruction. These wastes must be incinerated to
99.9999 percent destruction and removal efficiency
(DRE) under the LDRs before the ash from treatment
may be land disposed unless a Petition allowing an
equivalent treatment method is granted.
No Land Disposal
EPA sets a standard of no land disposal when,
after examining available data, the Agency has
determined that: the waste can be totally recycled
(e.g., on-site, closed loop recycling); the waste is not
currently being land disposed; the waste is no longer
generated; or no residuals are anticipated from the use
of the BOAT.
Although certain wastes may no longer be
generated or land disposed, these wastes may still be
found at Superfund sites. EPA has amended most of
these waste codes, however, to apply only to wastes
generated from the process described in the listing
description and disposed of after the effective date of
the prohibition (see 54 FR 18836, May 2, 1989).
Therefore, CERCLA wastes ordinarily would not be
subject to these standards.
COMPLYING WITH LDR TREATMENT STANDARDS
There are two types of tests for evaluating
compliance that may be required, depending on how
the treatment standards are promulgafed: the Total
Waste Analysis (TWA) measures the total concentration
levels of the hazardous constituents in the waste or
treatment residuals; and the Toxicity Characteristic
Leaching Procedure (TCLP) measures concentration
levels in the waste extract as a result of the TCLP test.
The TWA test generally is used for organic
constituents when a removal or destruction technology
is the BOAT. The TCLP generally is used for
inorganics when an immobilization BOAT is the basis
for the standard. However, the TCLP is also used for
the solvent- and dioxin-containing waste LDR treatment
standards and TWA is used for metals when BOAT is
based on metals recovery. Site managers (OSCs and
RPMs for on-site treatment and disposal actions) or
treatment facilities (for off-site disposal actions) must
test wastes after treatment and before land disposal to
determine if the LDR treatment standards are met.
TREATMENT STANDARDS IN EFFECT FOR RCRA
HAZARDOUS WASTES
Once a determination that the LDRs are ARARs
has been made (see Superfund LDR guide #5), site
managers must determine which of the specific LDR
restrictions are in effect for their waste(s) of concern.
If the Agency has promulgated a treatment standard
for a restricted RCRA hazardous waste, either the
LDR treatment standards or the minimum technology
requirements will be in effect. If EPA has not set a
treatment standard for a restricted RCRA hazardous
waste, either the soft or hard hammer provisions will
be in effect (see Superfund LDR Guide #4). The
Agency has promulgated treatment standards for the
following wastes:
Solvent-Containing. RCRA Hazardous Wastes
For solvent-containing RCRA hazardous wastes
(F001-F005), EPA has promulgated treatment standards
expressed as concentration levels. Unlike most of the
treatment standards for wastes containing organic
constituents, the standards for the F001-F005 wastes are
expressed as TCLP concentrations (40 CFR 268.41).
-------
Dioxin-Containing RCRA Hazardous Wastes
Dioxin-containing wastes (F020-F023 and F026-
F028), include chlorinated dibenzo-p-dioxins (CDDs),
chlorinated dibenzofurans (CDFs), and chlorophenols.
The treatment standards expressed as concentration
levels are based on incineration of contaminated soil.
Because current analytical methods cannot measure the
concentration levels attainable by the BDAT, EPA set
the treatment standards at the practical detection limits
(Le., 1 ppb) for most wastes. These standards are also
based on a TCLP analysis (40 CFR 268.41).
Although the LDR treatment standards for dioxin-
containing wastes are concentration levels, the dioxin-
listing rule (50 FR 1978) requires special management
standards for certain types of units:
Incineration in accordance with 40 CFR 264.343
and 40 CFR 265352;
Thermal treatment to 99.9999 percent ORE in
accordance with 40 CFR 265.383; or
Tank treatment, in accordance with 40 CFR
264.200.
Highlight 2 describes the LDR restrictions in effect
for solvent- and dioxin-containing RCRA hazardous
wastes.
California List Hazardous Wastes
The California list rule established specified
technologies as the treatment standards for certain
California list wastes. Specifically, California list PCB
and halogenated organic compound (HOC) wastes
(except dilute HOC wastewaters) must be incinerated
or burned in high-efficiency boilers or industrial
furnaces. Highlight 3 provides the LDR restrictions in
effect for California list wastes.
First Third Wastes
The First Third scheduled wastes include those
listed wastes that are intrinsically hazardous or are
high-volume wastes. EPA promulgated treatment
standards expressed as concentration levels and no land
disposal based on TWA and TCLP for certain First
Third wastes on August 17, 1988. First Third wastes
that do not have promulgated treatment standards are
restricted under the "soft hammer" provisions.
Highlight 4 describes the LDR restrictions in effect for
certain First Third wastes for which the Agency has set
treatment standards.
MINIMUM TECHNOLOGY REQUIREMENTS
THAT APPLY DURING A NATIONAL CAPACITY
EXTENSION
If during the promulgation of treatment standards
the Agency determines that insufficient treatment
capacity exists, the Agency may grant a national
capacity extension for a period of up to two years.
During the extension period, if wastes are to be land
disposed in surface impoundments or landfills, the units
must comply with the RCRA Subtitle C minimum
technology requirements (i.e., double liner, leachate
collection system, and ground-water monitoring) under
RCRA 3005(j)(2) or (j)(4) or the receiving units must
have a retrofitting waiver under RCRA 3004(o)(2) or
3005(j) to be considered equivalent to the minimum
technology requirements.
Highlight 2 - EFFECTIVE DATES AND LDR RESTRICTIONS FOR SOLVENTS AND DIOXINS
TYPE OF RESTRICTED
RCSA HAZARDOUS HASTE
TREAIHEHT STANDARD
EFFECTIVE DATE
LDB RESTRICTION IN EFFECT
AS OF NOVEMBER 8, 1988
F001 to F005 (spent
solvent-containing
wastes)
F020 to F023.
F026 to F028 (dioxin-
containing wastes )
Soil and debris
contaminated with
sclvent/diojcin
NOT from CERCLA/RCRA
corrective actions
Soil and debris
contaminated with
solver.t/dioiin
from CERCLA/RCRA
corrective actioni
November 8, 1986
or November 8, 1988*
November 8. 1988
November 8. 1988
November 8. 1990
Treatment standards as concentration
levels (TCLP)
Treatment standards as concentration
levels (TCLP)
Treatment standards as concentration
levels (TCLP)
Minimum technology requirements if
disposed of in landfill or surface
impoundment
Soil and debris contamined with solvent-containing wastes were granted a statutory two-year extension to
November 8, I9S8. All other solvent-ccr.taining wastes became restricted on November 8, 1986.
-------
Highlight 3 - EFFECTIVE DATES AND LDR RESTRICTIONS FOR CALIFORNIA LIST WASTES37
TYFE OF RESTH.1X.Im
ECHA HAZARDOUS HASTE
TREATMENT STANDARD
DATE
LDR RESTRICTION IN EFFECT
AS OF NOVEMBER 8. 1988
California list FCBs
Liquid and non-liquid HOCs
Soil and debris contaminated
with HOCs HOT from CERCLA/RCRA-
corrective actions
Soil and debris contaminated
with HOCs from CERCLA/RCRA
corrective actions
July 8, 1987
November 8. 1988
July 8. 1989
November B. 1990
Treatment standards as specified
technologyCies)
Treatment standards as specified
technology(ies)
Minimum technology requirements if
disposed of in landfill or surface
impoundment
Minimum technology requirements if
disposed of in landfill or surface
impoundment
£' Sea Super fund LDR Guide #* for soft and hard hammer restrictions in effect for remaining California iis;
wastes.
National capacity extensions for several types of
wastes currently are in effect under the LDRs. For
example, sofl and debris from CERCLA and RGRA
corrective actions that arc contaminated with solvent,
diootin, and California list wastes have received an
extension until November 8, 1990. AH soil and debris
contaminated with Fust Third wastes for which the
BOAT is based on solids incineration have received an
extension until August 8, 1990. Land disposal of
wastes subject to national capacity extensions in units
other than surface impoundments and landfills (c.g.,
waste piles, land treatment units) is not subject to the
minimum technology requirements during such an
extension.
Highlight 4 - EFFECTIVE DATES AND LDR RESTRICTIONS FOR CERTAIN FIRST THIRD
WASTES*7
TYPE OF RESTRICTED
RCRA HAZARDOUS HASTE
TREATMENT STANDARD
UtbdJLV& DATE
LDR RESTRICTION IN LttlLl
AS OF NOVEMBER 8. 1988
Firtt Third wattes (not
Otherwise accounted for)-'
Soil and debrii contaminated
with Firit Third wattes
for which BOAT it other than
tolids incineration
Soil and debris contaminated
with First Third wattes
for which BOAT it aolids
incineration
August 8, 1988
August 8. 1988
August 8. 1990
Treatment standards as concentration
levels (TWA and TCLP) and (for a few
waste codes) "no land disposal"
Treatment standards as concentration
levels (TWA and TCLP) and "no land
disposal"
Minimum technology requirements if
disposed of in landfill or surface
impoundment
i' See Superfund LDR Guide *« lor soft and hard hammer restrictions in effect for First Third wastes.
- Except K048-KOS2 and K071. which were granted a two-year extension until August 8. 1990.
-------
Superfund LDR Guide #4
Complying with the Hammer Restrictions Under
Land Disposal Restrictions
-------
EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Superfund Publication:
9347.3-O4FS
July 1989
Superfund LDR Guide #4
Complying With the Hammer
Restrictions Under Land
Disposal Restrictions (LDRs)
CERCLA response actions must comply with the Resource Conservation and Recovery Act (RCRA) Land
Disposal Restrictions (LDRs) when they are determined to be applicable or relevant and appropriate requirements
(ARARs). Compliance with the LDRs will involve meeting the LDR treatment standards, minimum technology
requirements during a national capacity extension, the soft or hard hammer restrictions, or satisfying the requirements
of one of the other LDR compliance options (i.e., Treatability Variance, Equivalent Treatment Method Petition, No
Migration Petition, or Delisting). This guide discusses complying with LDR soft hammer and hard hammer
provisions, which are restrictions on the disposal of hazardous wastes if EPA does not promulgate standards by the
statutory deadlines. More detailed guidance on Superfund compliance with the LDRs is being prepared by the Office
of Solid Waste and Emergency Response (OSWER).
SOFT HAMMER WASTES
If the Agency fails to set treatment standards for
First or Second Third wastes by their specified
statutory deadline (August 8, 1988, and June 8, 1989,
respectively), the wastes become restricted under the
soft hammer provisions until EPA sets a treatment
standard for them, or until May 8, 1990, when the
"hard hammer" provisions will fall. The soft hammer
provisions specify certain restrictions that may have to
be met before the wastes can be land disposed. The
hard hammer provisions prohibit all land disposal of
the wastes. Highlight 1 lists F- and K-wastes that are
soft hammer wastes (as of June 8, 1989).
Soft Hammer Restrictions
The LDR soft hammer provisions prohibit the
disposal of wastes in surface impoundment or landfill
units unless:
(1) The receiving unit meets the RCRA minimum
technology requirements (i.e., the unit must have
two or more liners, a leachate collection system,
and a ground-water monitoring system) or have an
equivalent RCRA retrofitting "waiver. These
waivers are described in RCRA §3005(j)(2), which
requires that a unit be at least one-quarter of a
mile from an underground drinking source, and
Waste
Code
F006
F019
K004
K008
K011
K013
KOU
K017
K021
K022
K025
K029
K031
K035
K036
K041
KCU2
For a
consult
Highlight 1 - F and K SOFT HAMMER WASTES (as of June
Waste
Physical Form
astewaters
astewaters
astewaters
astewaters
astewaters
astewaters
astewaters
astev.-aters
astewaters
astewaters
astewaters
astewaters
aatewaters
astewaters
astewaters
wastewaters
wastewaters
and
and
and
and
and
and
and
and
complete listing
nonwastewaters
nonwastewaters
nonwastewaters
nonwastewaters
nonwastewaters
nonwastewaters
nonwastewaters
nonwastewaters
of soft hammer waste
Code
K046
K060
K061
K069
K073
K083
K084
K085
K086
K095
K096
K097
K098
K101
K102
K105
K1Q6
restrictions ,
8, 1989)*
Physical Form
wastewaters
wastewaters
wastewaters
wastewaters
wastewaters
wastewaters
wastewaters
wastewaters
wastewaters
wastewaters
wastewaters
wastewaters
wastewaters
and
and
and
and
and
and
and
and
nonwastewaters
nonwastewaters
nonwastewaters
nonwastewaters
nonwastewaters
nonwastewaters
nonwastewaters
nonwastewaters
nonwastewaters
nonwastewaters
wastewaters
wastewaters
including all P and
and
and
nonwastewaters
nonwastewaters
U wastes that are restricted.
with EPA Headquarters. . .
-------
RCRA §3005(j)(4), which requires that the unit be
designed and operated such that there will be no
migration of hazardous constituents into ground or
surface water.
Waivers granted to units utilizing aggressive
biological treatment (RCRA §3005(j)(3)) or
undergoing corrective action (RCRA §3005(j)(13))
are not automatically considered equivalent to units
in compliance with the minimum technology
requirements. However, they may satisfy the
§3004(o)(2) equivalency standard on a unit-by-unit
basis.
(2) Site managers (OSCs, RPMs) certify that they have
made a good faith effort to locate and to contract
with treatment and recovery facilities for treatment
that is "practically available." If such treatment is
"practically available," the manager must use the
best, practically available treatment (see Highlight
2) to treat the wastes before they are land
disposed. If there is no "practically available"
treatment, the soft hammer wastes may be disposed
of without treatment in units meeting the
requirements listed in (1).
Highlight 2 - GUIDE TO "PRACTICALLY
AVAILABLE" AND "BEST TREATMENT
Practically Available - Site managers may
consider cost. ir. ciet.ermir.ing what treatments
are "practically available" according to the
following cost ratio:
Cost of treatment, shipment, and disposal
Cost of shipment and disposal
A ratio of 2.0 or greater (i.e., the cost
of treatment at least doubles the cost of
disposing of the waste without treatment)
generally is not "practical";
A ratio between 1.5 and 2.0 generally is
practical unless, on a case-by-case basis,
the site manager can demonstrate why this
treatment should not be considered
practical; and
A ratio of 1.5 or less generally is
practical.
This cost ratio is only a suideline for making
decisions about practically available
treatments; it is not a rule.
Best Treatment - Of the treatment technologies
that are "practically available," site managers
«re required to use the technology that yields
the greatest environmental benefit. In
general, EPA favors recycling/recovery as the
best method for treating a waste. The next
best general category of treatment is
destruction (thermal or chemical), especially
for organic wastes. Where neither recovery nor
destruction is available or appropriate,
immobilization of the wastes may be considered
"Vs"* " especially for inorganic wastes.
"best.
Soft hammer wastes disposed of in units other than
surface impoundments or landfills do not have to meet
the soft hammer restrictions before land disposal.
However, these wastes must comply with the LDR
notification requirements and other LDR restrictions,
such as storage prohibition. (The storage prohibition
restricts the storage of soft hammer wastes unless it is
solely for the purpose of accumulating sufficient
quantities to facilitate proper treatment, recovery, or
disposal.)
Soft Hammer Requirements for Notifications,
Certifications, and Demonstrations
When soft hammer wastes are land disposed or
treated off-site, site managers must comply with the
LDR notification, certification, and demonstration
requirements. When treatment and land disposal occur
on-site. site managers must only meet the
demonstration requirements. (The notification and
certification requirements are administrative
requirements and do not have to be met for on-site
actions.) The specific notification requirements,
including to whom and when they must be sent and
the required language from 40 CFR Part 268, are
shown in Highlight 3 for each of these categories.
California List and Soft Hammer Overlap
Certain soft hammer wastes also may be California
list wastes, in which case they may be subject either to
the California list or soft hammer requirements. If a
waste is restricted by soft hammer and California list
restrictions, site managers should meet the more
stringent standard for the waste.
If treatment standards have been promulgated for
a California list waste that is also a soft hammer,
the California list treatment standard must be met
for the waste before it is land disposed of into any
type of unit. In this case, tie soft hammer
restrictions and notification, certification, and
demonstration requirements do not apply.
If treatment standards have not been promulgated
for a California list waste that is also a soft
hammer, and the w,aste is to be land disposed in
a surface impoundment or landfill, one of two
situations may arise:
(1) If treatment is "practically available," a site
manager must use the "best" treatment to meet
the soft hammer requirements.
(2) If treatment is not "practically available," the
waste still must, at a minimum, be treated to
below the California list prohibition levels
before being land disposed to satisfy the
California list restrictions.
-------
Highlight 3 - SOFT HAMMER NOTIFICATION, CERTIFICATION, AND DEMONSTRATION
REQUIREMENTS
MtquiJUMtiiT
SENT TO
HHEN
REQUIRED raFCRMATIOH
U LAND DISPOSAL OCCURS Of SURFACE IMPOOHEMEHT OK LANDFILL UNITS
NOTIFICATION
(off-site only)
CERTIFICATION -
If treatment is
not practically
available
(off-site only)
CERTIFICATION -
If treatment ^s_
practically
available
(off-site only)
DEMONSTRATION -
If no treatment
is available
(off-site and
on-site)
DEMONSTRATION -
If treatment
is available
(off-site and
on-site)
Treatment or
disposal
facility
receiving
waste
EPA Regional
Administrator
and
Disposal
facility
receiving
waste
EPA Regional
Administrator
and
Treatment
facility
receiving
waste
EPA Regional
Administrator
EPA Regional
Administrator
With each
waste
shipment
At time of
first waste
shipment and
copy with
each waste
shipment
At time of
first waste
shipment and
copy with
each waste
shipment
At time of
first waste
shipment
At time of
first waste
shipment
Notification that the waste is a soft hammer
waste. Specific information includes:
- EFA hazardous waste number;
- Any applicable prohibitions (e.g., soft
hammer provision);
- Manifest number associated with shipment of
waste; and
- Waste analysis data, where available.
Certification should appear as follows :
"EPA certifies under penalty of law that the
requirements of 40 CFR 268.8(a)(l) have beer, net
and that disposal in a landfill or surface
impoundment is the only practical alternative -_c
treatment currently available. EPA believes ;hat
the information submitted is true, accurate, and
complete EPA is aware that there are sig-' f~ ~ant
penalties for submitting false information.
including the possibility of fine and
imprisonment . "
Certification should appear as follows:
"EPA certifies under penalty of law that the
requirements of 40 CFR 268.8(a)(l) have been
met and that the agency has contracted to treat
its waste (or will otherwise provide treatment;
by the practically available technology which
yields the greatest environmental benefit, as
indicated in its demonstration. EFA believes that
the information submitted is true, accurate, and
penalties for submitting false information,
including the possibility of fine and
imprisonment. "
List of facilities and facility officials
contacted, addresses, telephone numbers, and
contact dates. Also, a written discussion of
when treatment or recovery is not practical
for the waste.
List of facilities and facility officials
contacted, addresses, telephone numbers, and
contact dates. Provide information on the
chosen treatment technology selected because
it provides the greatest environmental benefit.
In both cases, site managers must meet the
appropriate soft hammer notification, certification,
and demonstration requirements.
If the waste will be land disposed in a unit other
than a surface impoundment or landfill (e.g., waste
"pile), the waste must, at a minimum, be treated below
the California list prohibition level before being land
disposed. The soft hammer restrictions do not apply,
and a site manager does not have to meet the soft
hammer notification, certification, and demonstration
requirements.
More information on California list wastes and
their overlap with soft hammer wastes is found in LDR
Guide #2. A step-by-step process to comply with the
soft hammer restrictions is shown in Highlight 4.
-------
Highlight 4 - IDENTIFYING SOFT HAMMER WASTE RESTRICTIONS
Fmdanothaf aurtaoa
ImpoundnMM or iMtdM un«
m* ooinpnat wWi «* mlnlmu
tachnotogy rvatriclfon or
-IT" ~"nnr Inn
D««.«rTnln« tf>« b«tl tr*atm*nt
that la practically avallabto and
contract with that facility to
hand* the wa*U.
U*M California lit!
atandarda. (Soft
haflmwar proviatona oo
not apply.)
If nec«taary. treat to
California lilt
prorwwttoo t*velt.
DUpOM of th« watt* tn
the mhilmum technoktgy -
compliant untt
rf naoaaaary, compry
wMh oO>«r and dtaooaal
raatricttoni
-------
Superfund LDR Guide #5
Determining When Land Disposal Restrictions are
Applicable to CERCLA Response Actions
~26~|
-------
EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Directive: 9347.3-O5FS
July 1989
Superfund LDR Guide #5
Determining When Land
Disposal Restrictions (LDRs)
Are Applicable to CERCLA
Response Actions
CERCLA Section 121(d)(2) specifies that on-site Superfund remedial actions shall attain "other Federal standards,
requirements, criteria, limitations, or more stringent State requirements that are determined to be legally applicable
or relevant and appropriate (ARAR) to the specified circumstances at the site." In addition, the National Contingency
Plan (NCP) requires that on-site removal actions attain ARARs to the extent practicable. Off-site removal and
remedial actions must comply with legally applicable requirements. This guide outlines the process used to determine
whether the Resource Conservation and Recovery Act (RCRA) land disposal restrictions (LDRs) established under
the Hazardous and Solid Waste Amendments (HSVVA) are "applicable" to a CERCLA response action. More detailed
guidance on Superfund compliance with the LDRs is being prepared by the Office of Solid Waste and Emergency
Response (OSWER).
For the LDRs to be applicable to a CERCLA
response, the action must constitute placement of a
restricted RCRA hazardous waste. Therefore, site
managers (OSCs, RPMs) must answer three separate
questions to determine if the LDRs are applicable:
(1) Does the response action constitute
placement?
(2) Is the CERCLA substance being placed
also a RCRA hazardous waste? and if so
(3) Is the RCRA waste restricted under the
LDRs?
Site managers also must determine if the CERCLA
substances are California list wastes, which are a
distinct category of RCRA hazardous wastes restricted
under the LDRs (see Superfund LDR Guide #2).
(1) DOES THE RESPONSE CONSTITUTE
PLACEMENT?
The LDRs place specific restrictions (e.g., treatment
of waste to concentration levels) on RCRA hazardous
wastes prior to their placement in land disposal units.
Therefore, a key
-------
For on-site disposal, placement occurs when wastes
are moved from one AOC (or unit) into another AOC
(or unit). Placement does not occur when wastes are
left in place, or moved within a single AOC. Highlight
2 provides scenarios of when placement does and does
not occur, as defined in the proposed NCP. The
Agency is current Devaluating the definition of
placement prior to the promulgation of the final NCP,
and therefore, these scenarios are subject to change.
Highlight 2: PLACEMENT
Placement does occur when wastes are:
Consolidated from different
AOCs into a single AOC;
Moved outside of an AOC (for
treatment or storage, for
example) and returned to the
same or a different AOC; or
Excavated from an AOC, placed
in a separate unit, such as an
incinerator or tank that is within
the AOC. and redeposited into
the same AOC.
Placement does not occur when wastes
are:
Treated in situ;
Capped in place;
Consolidated within the AOC; or
Processed within the AOC (but
not in a separate unit, such as a
tank) to improve its structural
stability (e.g., for capping or to
support heavy machinery).
In summary, if placement on-site or off-site does
not occur, the LDRs are not applicable to the
Superfund action.
(2) IS THE CERCLA SUBSTANCE A RCRA
HAZARDOUS WASTE?
Because a CERCLA response must constitute
placement of a restricted RCRA hazardous waste for
the LDRs to be applicable, site managers must evaluate
whether the contaminants at the CERCLA site are
RCRA hazardous wastes. Highlight 3 briefly describes
the two types of RCRA hazardous wastes --listed and
characteristic wastes.
Highlight 3: RCRA HAZARDOUS WASTES
A RCRA solid waste* is hazardous if it is
listed or exhibits a hazardous characteristic.
Listed RCRA Hazardous Wastes
Any waste listed in Subpart D of 40
CFR 261, including:
F waste codes (Part 261.31)
K waste codes (Part 261.32)
P waste codes (Part 261.33(e))
U waste codes (Part 261.33(f))
Characteristic RCRA Hazardous Wastes
Any waste exhibiting one of the following
characteristics, as defined in 40 CFR 261:
Ignitability
Corrosivity
Reactivity
Extraction Procedure (EP)
Toxicity
* A solid waste is any material that is discarded or
disposed of (i.e., abandoned, recycled in certain ways, or
considered inherently waste-like). The waste may be
solid, semi-solid, liquid, or a contained gaseous material.
Exclusions from the definition (e.g., domestic sewage
sludge) appear in 40 CFR 261.4(a). Exemptions (e.g.,
household wastes) are found in 40 CFR 261.4(b).
Site managers are not required to presume that a
CERCLA hazardous substance is a RCRA hazardous
waste unless there is affirmative evidence to support
such a finding. Site managers, therefore, should use
"reasonable efforts" to determine whether a substance
is a RCRA listed or characteristic waste. (Current
data collection efforts during CERCLA removal and
-------
remedial site investigations should be sufficient for this
purpose.) For listed hazardous wastes, if manifests or
labels are not available, this evaluation likely will
require fairly specific information about the waste (e.g.,
source, prior use, process type) that is "reasonably
ascertainable" within the scope of a Superfund
investigation. Such information may be obtained from
facility business records or from an examination of the
processes used at the facility. For characteristic wastes,
site managers may rely on the results of the tests
described in 40 CFR 261.21 - 261.24 for each
characteristic or on knowledge of the properties of the
substance. Site managers should work with Regional
RCRA staff, Regional Counsel, State RCRA staff, and
Superfund enforcement personnel, as appropriate, in
making these determinations.
In addition to understanding the two categories of
RCRA hazardous wastes, site managers will also need
to understand the derived-from rule, the mixture rule.
and the contained-in interpretation to identify correctly
whether a CERCLA substance is a RCRA hazardous
waste. These three principles, as well as an
introduction to the RCP_A delisting process, are
described below.
Derived-from Rule (40 CFR 2613(c)(2))
The derived-from rule slates that any soiid waste
derived from the treatment, storage, or disposal of a
listed RCRA hazardous waste is itself a listed
hazardous waste (regardless of the concentration of
hazardous constituents). For example, ash and
scrubber water from the incineration of a listed waste
are hazardous wastes on the basis of the derived-from
rule. Solid wastes derived from a characteristic
hazardous waste are hazardous wastes only if they
exhibit a characteristic.
Mixture Rule (40 CFR 2613(a)(2))
Under the mixture rule, when any solid waste and
a listed hazardous waste are mixed, the entire mixture
is a listed hazardous waste. For example, if a
generator mixes a drum of listed F006 electroplating
waste with a non-hazardous wastewater (wastewaters
are solid wastes - see Highlight 3), the entire mixture
of the F006 and wastewater is a listed hazardous waste.
Mixtures of solid- wastes and characteristic hazardous
wastes are hazardous only if the mixture exhibits a
characteristic.
Contained-in Interpretation (OSW Memorandum dated
November 13, 1986)
The contained-in interpretation states that any
mixture of a non-solid waste and a RCRA listed
hazardous waste must be managed as a hazardous
waste as long as the material contains (i.e., is above
health-based levels) the listed hazardous waste. For
example, if soil or ground water (i.e., both non-solid
wastes) contain an F001 spent solvent, thai soil or
ground water must be managed as a RCRA hazardous
waste, as long as it "contains" the F001 spent solvent.
Delisting (40 CFR 260J20 and 22)
To be exempted from the RCRA hazar .-us waste
"system," a listed hazardous waste, a mi_v..;;-.. i a listed
and solid waste, or a derived-from wu.srj must be
delisted (according to 40 CFR 260.20 and .22).
Characteristic hazardous wastes never need to be
delisted, but can be treated to no longer exhibit the
characteristic. A contained-in waste also does not have
to be delisted; it only has to "no longer contain" the
hazardous waste.
If site managers determine that the hazardous
substance(s) at the site is a RCRA hazardous waste(s),
they should also determine whether that RCRA waste
is a California list waste. California list wastes are a
distinct category of RCRA wastes restricted under the
LDRs (see Superfund LDR Guide #2).
(3) IS THE RCRA WASTE RESTRICTED
UNDER THE LDRs?
If a site manager determines that a CERCLA waste
is a RCRA hazardous waste, this waste also must be
restricted for the LDRs to be an applicable
requirement. A RCRA hazardous waste becomes a
restricted waste on its HSWA statutory deadline or
sooner if the Agency promulgates a standard before
the deadline. Because the LDRs are being phased in
over a period of time (see Highlight 4), site managers
may need to determine what type of restriction is in
-------
remedial site investigations should be sufficient for this
purpose.) For listed hazardous wastes, if manifests or
labels are not available, this evaluation likely will
require fairly specific information about the waste (e.g.,
source, prior use, process type) that is "reasonably
ascertainable" within the scope of a Superfund
investigation. Such information may be obtained from
facility business records or from an examination of the
processes used at the facility. For characteristic wastes,
site managers may rely on the results of the tests
described in 40 CFR 261.21 - 261.24 for each
characteristic or on knowledge of the properties of the
substance. Site managers should work with Regional
RCRA staff, Regional Counsel, State RCRA staff, and
Superfund enforcement personnel, as appropriate, in
making these determinations.
In addition to understanding the two categories of
RCRA hazardous wastes, site managers will also need
to understand the derived-from rule, the mixture rule,
and the contained-in interpretation to identify correctly
whether a CERCLA substance is a RCRA hazardous
waste. These three principles, as well as an
introduction to the RCRA delisting process, are
described below.
Derived-from Rule (40 CFR 2613(c)(2))
Th-i '.;.. rjvcd-from rule stales thai any solid waste
deriu,' ;:om ihe trealment. slorage, or disposal of a
listed RCRA hazardous waste is itself a listed
hazardous waste (regardless of the concentration of
hazardous constituents). For example, ash and
scrubber water from the incineration of a listed waste
are hazardous wastes on the basis of the derived-from
rule. Solid wastes derived from a characteristic
hazardous waste are hazardous wastes only if they
exhibit a characteristic.
Mixture Rule (40 CFR 2613(a)(2))
Under the mixture rule, when any solid waste and
a listed hazardous waste are mixed, the entire mixture
is a listed hazardous waste. For example, if a
generator mixes a drum of listed F006 electroplating
waste with a non-hazardous wastewater (wastewaters
are solid wastes - see Highlight 3), the entire mixture
of the F006 and wastewater is a listed hazardous waste.
Mixtures of solid wastes and characteristic hazardous
wastes are hazardous only if the mixture exhibits a
characteristic.
Contained-in Interpretation (OSW Memorandum dated
November 13, 1986)
The contained-in interpretation states that any
mixture of a non-solid waste and a RCRA listed
hazardous waste must be managed as a hazardous
waste as long as the material contains (i.e., is above
health-based levels) the listed hazardous waste. For
example, if soil or ground water (i.e., both non-solid
wastes) contain an F001 spent solvent, that soil or
ground water must be managed as a RCRA hazardous
waste, as long as it "contains" the F001 spent solvent.
Delisting (40 CFR 26020 and 22)
To be exempted from the RCRA hazardous waste
"system," a listed hazardous waste, a mixture of a listed
and solid waste, or a derived-from waste must be
delisted (according to 40 CFR 260.20 and .22).
Characteristic hazardous wastes never need to be
delisted, but can be treated to no longer exhibit the
characteristic. A contained-in waste also does not have
to be delisted; it only has to' "no longer contain" the
hazardous waste.
If site managers determine that the hazardous
substance(s) at the site is a RCRA hazardous waste(s),
they should also determine whether that RCRA waste
is a California list waste. California list wastes are a
distinct category of RCRA wastes restricted under the
LDRs (see Superfund LDR Guide #2).
(3) IS THE RCRA WASTE RESTRICTED
UNDER THE LDRs?
If a site manager determines that a CERCLA waste
is a RCRA hazardous waste, this waste also must be
restricted for the LDRs to be an applicable
requirement. A RCRA hazardous waste becomes a
restricted waste on its HSWA statutory deadline or
sooner if the Agency promulgates a standard before
the deadline. Because the LDRs are being phased in
over a period of time (see Highlight 4), site managers
may need to determine what type of restriction is in
-------
'1
Highlight 4: LDR STATUTORY DEADLINES
Waste
Statutory Deadline
Spent Solvent and Dioxin-
Containing Wastes
California List Wastes
First Third Wastes
Spent Solvent. Dioxin-
Containing, and California
List Soil and Debris From
CERCLA/RCRA Corrective
Actions
Second Third Wastes
Third Third Wastes
Newly Identified
Wastes
November 8, 1986
July 8, 1987
August 8. 1988
November 8. 1988
June S. 1989
May 8, 1990
Within 6 months of
identification as a
hazardous waste
effect at the time placement is to occur. For example,
if the RCRA hazardous wastes at a site are currently
under a national capacity extension when the CERCLA
decision document is signed, site managers should
evaluate whether the response action will be completed
before the extension expires. If these wastes are
disposed of in surface impoundments or landfills prior
to the expiration of the extension, the receiving unit
would have to meet minimum technology requirements,
but the wastes would not have to be treated to meet
the LDR treatment standards.
APPLICABILITY DETERMINATIONS
If the site manager determines that the LDRs are
applicable to the CERCLA response based on the
previous three questions, the site manager must: (1)
comply with the LDR restriction in effect, (2) comply
with the LDRs by choosing one of the LDR
compliance options (e.g., Treatability Variance, No
Migration Petition), or (3) invoke an ARAR waiver
(available only for on-site actions). If the LDRs are
determined not to be applicable, then, for on-site
actions only, the site manager should determine if the
LDRs are relevant and appropriate. The process for
determining whether the LDRs are applicable to a
CERCLA action is summarized in Highlight 5.
Highlight 5 - DETERMINING WHEN LDRS
ARE APPLICABLE REQUIREMENTS
Is the
RCRA hazardous
waste restricted
under the LDRs?
L^Rs are not
LDRs are not
applicable:
detarmme if
they ar«
relevant and
appropriate
(on-3ite
response only)-
LDRs are applicable
requirements
-------
Superfund LDR Guide #6A (2nd Edition)
Obtaining a Soil and Debris Treatability Variance
for Remedial Actions
-------
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Superfund Publication:
9347.3-06FS
September 1990
A EPA
Superfund LDR Guide #6A (2nd Edition)
Obtaining a Soil and Debris
Treatability Variance for
Remedial Actions
Office of Emergency and Remedial Response
Hazardous Site Control Division
Quick Reference Fact Sheet
The Office of Emergency and Remedial Response (OERR) issued a series of Superfund LDR Guides
in July and December of 1989. This series included: Overview of RCRA Land Disposal Restrictions (LDRs)
(Superfund LDR Guide #1); Complying with the California List Restrictions (Superfund LDR Guide #2);
Treatment Standards and Minimum Technology Requirements Under the LDRs (Superfund LDR Guide #3);
Complying with the Hammer Restrictions Under the LDRs (Superfund LDR Guide #4); Determining When the
LDRs are Applicable to CERCLA Responses (Superfund LDR Guide #5); Obtaining a Soil and Debris
Treatability Variance for Remedial (Superfund LDR Guide #6A) and Removal (Superfund LDR Guide #6B)
Actions; and Determining When the LDRs are Relevant and Appropriate to CERCLA Responses (Superfund LDR
Guide #7). Since the issuance of these guides, the Environmental Protection Agency, with cooperation from
outside parties (e.g., environmental groups, industry representatives), has conducted an analysis of the potential
impacts associated with applying the LDR treatment standards to Superfund and RCRA Corrective Action
cleanups. As a result of these analyses, it was decided that the Agency will promulgate a third set of treatment
standards (in addition to the wastewater and nonwastewater categories currently in effect) specifically for soil
and debris wastes. In the interim, there is the presumption that CERCLA response actions involving the
placement of soil and debris contaminated with RCRA restricted wastes will utilize a Treatability Variance
to comply with the LDRs and that, under these variances, the treatment levels outlined in Superfund LDR
Guide #6A will serve as alternative "treatment standards." This guide (a revision to the original Superfund
LDR Guide #6A) has been prepared to outline the process for obtaining and complying with a Treatability
Variance for soil and debris that are contaminated with RCRA hazardous wastes until such time that the
Agency promulgates treatment standards for soil and debris.
BASIS FOR A TREATABILITY VARIANCE
When promulgating the LDR treatment
standards, the Agency recognized that treatment of
wastes to the LDR treatment standards would not
always be possible or appropriate. In addition, the
Agency recognized the importance of ensuring that
the LDRs do not unnecessarily restrict the
development and use of alternative and innovative
treatment technologies for remediating hazardous
waste sites. Therefore, a Treatability Variance
process (40 CFR §268.44) is available to comply
with the LDRs when a Superfund waste differs
significantly from the waste used "to set the LDR
treatment standard such that:
The LDR standard cannot be met; or
The best demonstrated available technology
(BDAT) used to set the standard is
inappropriate for the waste.
Superfund site managers (OSCs, RPMs)
should seek a Treatability Variance to comply with
the LDRs when managing restricted soil and debris
Highlight 1: SOIL AND DEBRIS
Soil. Soil is defined as materials that are
primarily of geologic origin such as sand,
silt, loam, or clay, that are indigenous to
the natural geologic environment at or
near the CERCLA site. (In many cases,
soil is mixed with liquids, sludges, and/or
debris.)
Debris. Debris is defined as materials
that are primarily non-geologic in origin,
such as grass, trees, stumps, and man-
made materials such as concrete, clothing,
partially buried whole or empty drums,
capacitors, and other synthetic manufac-
tured materials, such as liners. (It does
not include synthetic organic chemicals,
but may include materials contaminated
with these chemicals).
Printed on Recycled Paper
-------
wastes (see Highlight 1) because the LDR
treatment standards are based on treating less
complex matrices of industrial process wastes
(except for the dioxin standards, which are based
on treating contaminated soil). A Treatability
Variance does not remove the requirement to treat
restricted soil and debris wastes. Rather, under a
Treatability Variance, alternate treatment levels
based on data from actual treatment of soil, or
best management practices for debris, become the
"treatment standard" that must be met.
COMPLYING WITH A TREATABILITY
VARIANCE FOR SOIL AND DEBRIS WASTES
Soil Wastes
Once site managers have identified the RCRA
waste codes present at the site, the next step is to
identify the BOAT constituents of those RCRA
waste codes and to divide these constituents into
one of the structural/functional groups shown in
column 1 of Highlight 2. After dividing the BOAT
constituents into their respective
structural/functional groups, the next step is to
compare the concentration of each constituent
with the threshold concentration (see column 3 of
Highlight 2) and to select the appropriate
concentration level or percent reduction range. If
the concentration of the restricted constituent is
less than the threshold concentration, the waste
should be treated to within the concentration
range. If the waste concentration is above the
threshold, the waste should be treated to reduce
the concentration of the waste to within the
specified percent reduction range. Once the
appropriate treatment range is selected, the third
step is to identify and select a specific technology
Highlight 2: ALTERNATE TREATABILITY VARIANCE LEVELS AND
TECHNOLOGIES FOR STRUCTURAL/FUNCTIONAL GROUPS
Structural
Functional
Groups
OROANtOS
Halogenated
Non-Polar
Aromatics
Oioxins
PCBs
Herbicides
Halogenated
Phenols
Halogenated
Aliphatics
Halogenated
Cyclics
Nitrated
Aromatics
Heterocyclics
Polynuclear
Aromatics
Other Polar
Organics
INORGANICS
Antimony
Arsenic
Barium
Chromium
Nickel
Selenium
Vanadium
Cadmium
Lead
Mercury
Concentration
Range
(ppm)
Total Waste
'Analysis/*
0.5 - 10
0.00001 - 0.05
0.1 - 10
0.002 - 0.02
0.5-40
0.5-2
0.5-20
2.5 - 10
0.5-20
0.5 - 20
0.5- 10
TCU*
0.1 - 0.2
0.30- 1
0.1 -40
0.5-6
0.5-1
0.005
0.2-20
0.2-2
0.1 -3
0.0002 - 0.008
Threshold
Concentration
(ppm)
Total Waste
Analysis/*
100
0.5
100
0.2
400
40
200
10.000
200
400
100
TCU*
2
10
400
120
20
0.05
200
40
300
0.08
Percent
Reduction
Range
90-99.9
90-99.9
90 - 99.9
90-99.9
90-99
95 - 99.9
90-99.9
99.9 - 99.99
90-99.9
95-99
' 90-99
90-99
90 -99.9
90-99
95-99.9
95 - 99.9
90-99
90-99
95 - 99.9
99-99.9
90-99
Technologies that achieved
recommended effluent
concentration guidance**
Biological Treatment. Low Temp. Stripping,
Soil Washing. Thermal Destruction
Dechlorination. Soil Washing, Thermal Destruction
Biological Treatment. Dechlorination, Soil Washing,
Thermal Destruction
Thermal Destruction
Biological Treatment, Low Temp. Stripping,
Soil Washing. Thermal Destruction
Biological Treatment, Low Temp. Stripping. Soil Washing,
Thermal Destruction
Thermal Destruction
Biological Treatment Soil Washing
Thermal Destruction
Biological Treatment, Low Temp. Stripping, Soil Washing,
Thermal Destruction
Biological Treatment. Low Temp. Stripping, Soil Washing,
Thermal Destruction
Biological Treatment, Low Temp. Stripping, Soil Washing.
Thermal Destruction
Immobilization
Immobilization, Soil Washing
Immobilization
Immobilization. Soil Washing
Immobilization. Soil Washing
Immobilization
immobilization
Immobilization. Soil Washing
Immobilization, Soil Washing
Immobilization
* TCLP also may be used when evaluating waste with relatively low levels oforganics that have been treated through an immobilization
process.
* * Other technologies may be used if trtatability studies or other information indicates that they can achieve the necessary concentration or
percent-reduction ranqe.
-------
that can achieve the necessary concentration or
percent reduction. Column 5 of Highlight 2 lists
technologies that (based on existing performance
data) can attain the alternative Treatability
Variance levels.
During the implementation of the selected
treatment technology, periodic analysis using the
appropriate testing procedure (i.e., total waste
analysis for organics and TCLP for inorganics) will
be required to ensure the alternate treatment
levels for the BDAT constituents requiring control
are being attained and thus can be land disposed
without further treatment.
Because of the variable and uncertain
characteristics associated with unexcavated wastes,
from which only sampling data are available,
treatment systems generally should be designed to
achieve the more stringent end of the treatment
range (e.g., 0.5 for chromium, see column 2 of
Highlight 2) to ensure that the treatment residuals
from the most contaminated portions of the waste
fall below the "no exceedance" levels (e.g., 6.0 ppm
for chromium). Should data indicate that the
treatment levels set through the Treatability
Variance are not being attained (i.e., treatment
residuals are greater than the "no exceedance"
level), site managers should consult with EPA
Headquarters.
Debris Wastes
Site managers should use the same process for
obtaining a Treatability Variance described above
for types of debris that are able to be treated to
the alternate treatment levels (e.g., paper, plastic).
However, for most types of debris (e.g., concrete,
steel pipes), which generally cannot be treated, site
managers should use best management practices.
Depending on the specific characteristics of the
debris, these practices may include
decontamination (e.g., triple rinsing) or
destruction.
OBTAINING A TREATABILTTY VARIANCE FOR
SOUL AND DEBRIS WASTES
Once it is determined that a CERCLA waste is
a soil or debris, and that compliance with the
LDRs will be required (i.e., the wastes contain
restricted RCRA waste(s) and placement will
occur), site managers should initiate the process of
obtaining a Variance. For remedial actions this
will involve: (1) documenting the intent to comply
with the LDRs through a Treatability Variance in
the FS Report: (2) announcing the intent to
comply through a Treatability Variance in the
Proposed Plan: and (3) granting of the Treatability
Variance by the Regional Administrator or the
Highlight 3 - INFORMATION TO BE INCLUDED IN AN RI/FS TO DOCUMENT THE INTENT TO COMPLY WITH
THE LDRs THROUGH A TREATABILITY VARIANCE FOR ON-SITE AND OFF-SITE CERCLA RESPONSE ACTIONS
INVOLVING THE PLACEMENT OF SOIL AND DEBRIS CONTAMINATED WITH RESTRICTED RCRA WASTES
ON-SITE
Description of the soil or debris waste and the source of the contamination;
Description of the Proposed Action (e.g., "excavation, treatment, and off-site disposal");
Intent to comply with the LDRs through a Treatability Variance; and
For each alternative using a Treatability Variance to comply, the specific treatment level range to be achieved (see
Highlight 2 to determine these treatment levels).
OFF-SITE
For off-site Treatability Variances, the information above should be extracted from the RI/FS report and combined with the
following information in a separate document:'
Petitioner's name and address and identification of an authorized contact person (if different); and
Statement of petitioner's interest in obtaining a Treatability Variance.
* This document may be prepared after the ROD is signed (and Treatability Variance granted) but will need to be compiled
prior to the first shipment of wastes (or treatment residuals) to the receiving treatment or disposal facility.
-------
LDRs as an ARAR and indicate that a Treatability
Variance is being used to comply.
Under some circumstances, the need to obtain
a Treatability Variance may not be evident until
after a ROD is signed. For example, previously
undiscovered evidence may be obtained during a
remedial design/remedial action (RD/RA) that the
CERCLA waste contains a RCRA restricted waste
and the LDRs are then determined to be
applicable. In such situations, a site manager
would need to prepare an explanation of
significant differences (ESD) from the ROD and
make it available to the public to explain the need
for a Treatability Variance. In addition, unlike
other ESDs that do not require public comment
under CERCLA section 117(c), if the ESD
involves granting a Treatability Variance, an
opportunity for public comment would be required
to fulfill the public notice and comment
requirements for a Treatability Variance under 40
CFR §268.44.
LDRs IN SUPERFUND ACTIONS
Because of the important role the LDRs may
play in Superfund cleanups, site managers need to
incorporate early in the RI/FS the necessary
investigative and analytical procedures to
determine if the LDRs are applicable for remedial
alternatives that involve the "placement" of wastes.
When the LDRs are applicable, site managers
should determine if the treatment processes
associated with the alternatives can attain either
the LDR treatment standards or the alternate
levels that would be established under a
Treatability Variance.
Site managers must first evaluate whether
restricted RCRA waste codes are present at the
site, identify the BDAT constituents requiring
control, and compare the BDAT constituents with
the Superfund primary constituents of concern
from the baseline risk assessment. This process
identifies all of the constituents for which
remediation may be required. Once the viable
alternatives are identified in the FS, site managers
should evaluate those involving the treatment and
placement of restricted RCRA hazardous wastes to
ensure their respective technology process(es) will
attain the appropriate treatment levels (i.e., either
LDR treatment standard or Treatability Variance
alternate treatment levels for soil and debris
containing restricted RCRA hazardous wastes)
and, in accordance with Superfund goals,
reductions of 90 percent or greater for Superfund
primary contaminants of concern. The results of
these evaluations are documented in the Proposed
Plan and ROD. An illustration of the integration
of LDRs and Superfund is shown in Highlight 6.
An example of the process for complying with a
Treatability Variance for contaminated soil and
debris is presented in Highlight 7.
Highlight 6: LDRs IN THE RI/FS PROCESS
Evaluate
nature and
extent of *He
contamination
primary
contaminant*
DtWettop watt*
thecfte
they will rMutt hi tignrflcant
reduction* of toxtetty, mobility, or
volume of primary contaminant*
''
Concurrent
Ewitelrtion*
Determine which
restricted RORA
hazardou*
Compare Superfund
contamlnanta of
concern with BDAT
eonatJtuanta requiring
Evaluate
whether reme-
dial alternative
Identify alternative
treatment level*
(hat mutt be met
under TreatabllKy
V«
TraatabMtty
Variance
ROD I* clgned
-------
Assistant Administrator/OSWER when the
ROD is signed.
FS Report
The FS Report should contain the necessary
information (see Highlight 3) to document the
intent to comply with the LDRs for soil and debris
through a Treatability Variance. In the Detailed
Analysis of Alternatives chapter of the FS Report,
the discussion should specify the treatment level
range(s) that the treatment technology would
attain for each waste constituent restricted under
the LDRs, as well as the Superfund primary
contaminants of concern identified during the
baseline risk assessment. In addition, under the
Comparative Analysis of Alternatives section, when
discussing the "Compliance with ARARs Criteria,11
site managers should indicate which alternatives
will comply with the LDRs through the use of a
Treatability Variance.
Proposed Plan
The intent to comply with the LDRs through a
Treatability Variance for a particular alternative
should be clearly stated in the Description of
Alternatives section of the Proposed Plan.
Because the Proposed Plan solicits public comment
on all of the alternatives and not just the preferred
Highlight 4 - SAMPLE
THE PROPOSED PLAN
LANGUAGE FOR
Description of Alternatives section
This alternative will comply with the LDRs
through a Treatability Variance under 40 CFR
268.44. This Variance will result in the use of
[specify technology] to attain the Agency's
interim "treatment levels/ranges" for the
contaminated soil at the site (see Detailed
Analysis of Alternatives Chapter of the FS
Report for the specific treatment levels for each
constituent).
Evaluation of Alternatives section, under
"Compliance with ARARs"
The LDRs are ARARs for [Enter number] of
[Enter total number of alternatives] remedial
alternatives being considered. [Enter number] of
the [Enter total number of alternatives]
alternatives would comply with the LDRs
through a Treatability Variance.
Highlight 5: SAMPLE LANGUAGE
FOR A RECORD OF DECISION
Description of Alternatives section:
This alternative will comply with the
LDRs through a Treatability Variance
for the contaminated soil and debris.
The treatment level range established
through a Treatability Variance that
[Enter technology] will attain for each
constituent as determined by the
indicated analyses are [Example shown
below]:
Barium 0.1 - 40ppm (TCLP)
Mercury 0.0002 - 0.008ppm (TCLP)
Vanadium 0.2 - 20 ppm (TCLP)
TCE 95-99.9% reduction (TWA)
Cresols
90-99% reduction (TWA)
option, the intent to obtain a Treatability Variance
should be identified for every alternative for which
a Variance would be used. This opportunity for
public comment on the Proposed Plan fulfills the
requirements for public notice and comment (off-
site actions only) on the Treatability Variance as
required in RCRA §268.44. Sample language for
the Proposed Plan is provided in Highlight 4.
Record of Decision
A Treatability Variance is granted and becomes
effective when the Record of Decision (ROD) is
signed by the Regional Administrator or Assistant
Administrator/OSWER. In the Description of
Alternatives section, as part of the discussion of
major applicable requirements associated with each
remedial option, site managers should include a
statement (as was done in the FS report) that a
Treatability Variance will be used to comply with
the LDRs, and list the treatment level range(s)
that the selected technology will attain for each
constituent. Sample language for the ROD is
provided in Highlight 5.
In the Comparative Analysis section, under
"Compliance with ARARs," site managers should
indicate which of the alternatives will comply with
the LDRs through a Treatability Variance. Under
the Statutory Determination section (Compliance
with ARARs), site managers should identify the
-------
Highlight 7: IDENTIFICATION OF TREATMENT LEVELS FOR A TREATABCUTY VARIANCE
As part of the RI, it has been determined that soils in one location at a site contain F006 wastes and cresols (which site records indicate were an
P004 waste). Arsenic also was found in soils at a separate location. The baseline risk assessment identified cadmium, chromium, lead, and arsenic
as primary contaminants of concern. The concentration range of all of the constituents found at the site included:
Constituent
Cadmium
Chromium
Cyanides
Lead
Total Concentration
(ms/ke)
2,270 - 16,200
3,160 - 4,390
80- 150
500- 625
TCLP
(msM
120 - 146
30- 56
1 - 16
2 - 1£5
Constituent
Nickel
Silver
Cresols
Arsenic
Total Concentration
(me/ke)
100- 140
1- 3
50-600
800- 1,900
TCLP
(me/1)
1-6.5
.25-4
3-9
Four remedial alternatives are being considered: (1) Low temperature thermal stripping of soil contaminated with cresols followed by
immobilization of the ash; (2) Immobilization of the soil in a mobile unit; (3) In-situ immobilization; and (4) Capping of wastes. Each of these
alternatives must be evaluated to determine if they will result in significant reduction of the tenacity, mobility, or volume of the waste; whether
"placement" occurs; and, if "placement" occurs, whether the treatment will attain the alternative treatment levels established through a Treatability
Variance for the BOAT constituents requiring control.
STEP I: IDENTIFY THE RESTRICTED CONSTITUENTS
Because F006 and F004 wastes have been identified in soils at the site, the Superfund site manager must meet alternate treatment levels
established through a Treatability Variance for the BOAT constituents. These constituents are: Cadmium, Chromium, Lead, Nickel, Silver,
and Cyanide for F006 and Cresols for F004.
AND DIVIDE THE CONSTITUENTS INTO THEIR STRUCTURAL/FUNCTIONAL GROUPS (see Highlight 2):
All of the F006 constituents are in the Inorganics structural/functional group.
Cresols are in the Other Polar Organic Compounds structural/functional group.
In accordance with program goals, the preferred remedy also should result in the effective reduction (i.e., at least 90 percent) of all primary
constituents of concern (i.e., Cadmium, Chromium, Lead, and Arsenic).
STEP 2:
AND CHOOSE EITHER THE CONCENTRATION LEVEL RANGE OR PERCENT REDUCTION RANGE FOR EACH RESTRICTED
CONSTITUENT.
Site Threshold
Constituent Concentration Concentration
Cadmium
Chromium
Lead
Nickel
Cresols (Total)
Cresols (TCLP)
Arsenic
120-
30-
2-
1 -
50
.25
3
146 ppm :
56 ppm <
12.5 ppm «
6.5 ppm
- 600 ppm :
4 ppm
9 ppm
> 40
: 120
: 300
c 20
> 100
< 10
ppm
ppm
ppm
ppm
ppm
ppm
Appropriate Range Range to be achieved
Concentration Percent Reduction (compliance analysis')
X
X
X
X
X
X 95-99.9 Percent
0.5 -6
0.1-3
0.5-1
90-99 Percent
X
0.27 - 1
Reduction (TCLP)
ppm (TCLP)
ppm (TCLP)
ppm (TCLP)
Reduction (TCLP)
ppm (TCLP)
STEP 3: IDENTIFY TREATMENT TECHNOLOGIES THAT MEET THE TREATMENT RANGES.
Highlight 2 lists the technologies that achieved the alternate treatment levels for each structural/functional group.
Because cresols are present in relatively low concentrations (assumed for the purposes of this example), a TCLP may be used to determine if
immobilization results in a sufficient reduction of mobility of this restricted RCRA hazardous waste. (Measures to address any volatilization of
organics during immobilization processes will be necessary.)
Based on the results of treatability tests conducted at the site, immobilization also will result in the effective reduction in leachability (i.e., at least
90 percent) of arsenic, a Superfund primary contaminant of concern.
Effective Reduction
Alternative of Toriclty, Mobility, Volume?
1. Low temperature stripping/
Immobilization
2. Immobilization in mobile unit
3. In-situ immobilization
4. Capping in Place
Yes
Yes
Yes (Mobility)
No
"Placement?"
Yes
Yes
No(LDRs
No(LDRs
Meet Treatability Variance
Alternate Levels?
not ARARs)
not ARARs)
Yes
Yes
STEP 4: PREPARE PROPOSED PLAN, OBTAIN COMMENTS
Highlight 4 provides sample language for the Proposed Plan that announces the intent to comply with the LDRs through a Treatability Variance.
STEP 5: PREPARE ROD
Highlight 5 provides sample language for a ROD signed for a site that will comply with the LDRs through a Treatability Variance.
-------
Superfund LDR Guide #6B
Obtaining a Soil and Debris Treatability Variance for
Removal Actions
~28J|
-------
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Superfund Publication:
9347.3-O6BFS
September 1990
EPA
Superfund LDR Guide #6B
Obtaining a Soil and Debris
Treatability Variance for
Removal Actions
Office of Emergency and Remedial Response
Hazardous Site Control Division
Quick Reference Fact Sheet
The Office of Emergency and Remedial Response (OERR) issued a series of Superfund LDR Guides
in July and December of 1989. This series included: Overview ofRCRA Land Disposal Restrictions (LDRs)
(Superfund LDR Guide #1); Complying with the California List Restrictions (Superfund LDR Guide #2);
Treatment Standards and Minimum Technology Requirements Under the LDRs (Superfund LDR Guide #3);
Complying with the Hammer Restrictions Under the LDRs (Superfund LDR Guide #4); Determining When the
LDRs are Applicable to CERCLA Responses (Superfund LDR Guide #5); Obtaining a Soil and Debris
Treatability Variance for Remedial (Superfund LDR Guide #6A) and Removal (Superfund LDR Guide #6B)
Actions; and Determining When the LDRs are Relevant and Appropriate to CERCLA Responses (Superfund LDR
Guide #7). Since the issuance of these guides, the Environmental Protection Agency, with cooperation from
outside parties (e.g., environmental groups, industry representatives), has conducted an analysis of the potential
impacts associated with applying the LDR treatment standards to Superfund and RCRA Corrective Action
cleanups. As a result of these analyses, it was decided that the Agency will promulgate a third set of treatment
standards (in addition to the wastewater and nonwastewater categories currently in effect) specifically for soil
and debris wastes. In the interim, there is the presumption that CERCLA response actions involving the
placement of soil and debris contaminated with RCRA restricted wastes will utilize a Treatability Variance
to comply with the LDRs and that, under these variances, the treatment levels outlined in Superfund LDR
Guide #6B will serve as alternative "treatment standards" for removal actions. This guide has been prepared
to outline the process for obtaining and complying with a Treatability Variance for soil and debris that are
contaminated with RCRA hazardous wastes until such time that the Agency promulgates treatment standards
for soil and debris.
BASIS FOR A TREATABILITY VARIANCE
When promulgating the LDR treatment
standards, the Agency recognized that treatment of
wastes to the treatment standards established using
the best demonstrated available technology
(BDAT) would not always be possible or
appropriate (RCRA §268.44). In addition, the
Agency recognized the importance of ensuring that
the LDRs do not unnecessarily restrict the
development and use of alternative and innovative
treatment technologies for remediating hazardous
waste sites. Therefore, a Treatability Variance
process is available to comply with the LDRs when
a Superfund waste differs significantly from the
waste used to set the LDR treatment standard such
that:
The LDR standard cannot be met; or
The BDAT used to set the standard
inappropriate for the waste.
is
Highlight 1: SOIL AND DEBRIS
Soil. Soil is defined as materials that are
primarily of geologic origin such as sand, silt,
loam, or clay, that are indigenous to the
natural geologic environment at or near the
CERCLA site. (In many cases, soil is mixed
with liquids, sludges, and/or debris.)
Debris. Debris is defined as materials that
are primarily non-geologic in origin, such as
grass, trees, stumps, and man-made materials
such as concrete, clothing, partially buried
whole or empty drums, capacitors, and other
synthetic manufactured materials, such as
liners. (It does not include synthetic organic
chemicals, but may include materials
contaminated with these chemicals).
Printed on Recycled Paper
-------
During on-site removal actions, on-scene
coordinators (OSCs) must comply with the LDRs
if the LDRs are ARARs and compliance with the
LDRs is practicable. For removals involving off-
site deposition, OSCs must simply determine if the
LDRs are applicable. When managing restricted
soil and debris wastes (see Highlight 1), it is
presumed that OSCs will comply with the LDRs
through a Treatability Variance because, except for
the dioxin standards which are based on treating
contaminated soil, the LDR treatment standards
are based on treating less complex matrices of
industrial process wastes. A Treatability Variance
does not remove the requirement to treat
restricted soil and debris wastes. Rather, under a
Variance, an OSC selects alternate treatment levels
the Agency has established, which are based on
data from actual treatment of soil or best
management practices for debris.
COMPLYING WITH A TREATABILITY
VARIANCE FOR SOIL AND DEBRIS WASTES
Soils
Once the OSCs have identified the RCRA
waste codes present at the site, the next step is to
identify the BOAT constituents requiring control
and to divide these constituents into one of the
structural/functional groups shown in column 1 of
Highlight 2. After dividing the BOAT constituents
into their respective structural/functional groups,
the next step is to compare the concentration of
each constituent with the threshold concentration
(see column 3 of Highlight 2) and to select the
appropriate concentration level or percent
reduction range. If the concentration of the
restricted constituent is less than the threshold
concentration, the waste should be treated to
Highlight 2: ALTERNATE TREATABrUTY VARIANCE LEVELS AND
TECHNOLOGDZS FOR STRUCTURAL/FUNCTIONAL GROUPS
Structural
Functional
Groups
ORGANtCS
HaJogenated
Non-Polar
Aromatics
Dioxins
PCBs
Herbicides
HaJogenated
Phenols
Halogenated
Aliphatics
Halogenated
Cyclics
Nitrated
Aromatics
Heterocyclics
Polynuclear
Aromatics
Other Polar
Organics
INORGANICS
Antimony
Arsenic
Barium
Chromium
Nickel
Selenium
Vanadium
Cadmium
Lead
Mercury
Concentration
Range
(ppm)
Total Waste
Analysis/*
0.5 - 10
0.00001 - 0.05
0.1 - 10
0.002 - 0.02
0.5-40
0.5-2
0.5-20
2.5- 10
0.5-20
0.5-20
0.5 - 10
, TCLP
0.1 - 0.2
0.3- 1
0.1 -40
0.5-6
0.5- 1
0.005
0.2-20
0.2-2
0.1 - 3
0.0002 - 0.008
Threshold
Concentration
(ppm)
Total \Vasie
Analysis/*
100
0.5
100
0.2
400
40
200
10,000
200
400
100
TCLP
2
10
400
120
20
0.05
200
40
300
0.08
Percent
Reduction
Range
90-99.9
90-99.9
90-99.9
90-99.9
90-99
95-99.9
90-99.9
99.9 - 99.99
90-99.9
95-99
90-99
90-99
90-99.9
90-99
95-99.9
95-99.9
90-99
90-99
95-99.9
99 -99.9
90-99
Technologies that achieved
recommended effluent
concentration guidance**
Biological Treatment Low Temp. Stripping,
Soil Washing. Thermal Destruction
Dechlorination, Soil Washing. Thermal Destruction
Biological Treatment Dechlorination, Soil Washing.
Thermal Destruction
Thermal Destruction
Biological Treatment Low Temp. Stripping,
Soil Washing. Thermal Destruction
Biological Treatment Low Temp. Stripping, Soil Washing,
Thermal Destruction
Thermal Destruction
Biological Treatment Soil Washing
Thermal Destruction
Biological Treatment Low Temp. Stripping. Soil Washing,
Thermal Destruction
Biological Treatment Low Temp. Stripping. Soil Washing,
Thermal Destruction
Biological Treatment. Low Temp. Stripping. Soil Washing.
Thermal Destruction
Immobilization
Immobilization, Soil Washing
Immobilization
Immobilization. Soil Washing
Immobilization. Soil Washing
Immobilization
Immobilization
Immobilization, Soil Washing
Immobilization. Soil Washing
Immobilization
* TCLP also may be used when evaluating waste in which organics art not a principal constituent that have been treated through an
immobilization process.
" Other technologies may be used if treatability studies or other information indicates that they can achieve the necessary concentration or
-------
within the concentration range. If the waste
concentration is above the threshold, the waste
should be treated to reduce the concentration of
the waste to within the specified percent reduction
range. Once the appropriate treatment range is
selected, the third step is to identify and select a
specific technology that can achieve the necessary
concentration or percent reduction. Column 5 of
Highlight 2 lists technologies that (based on
existing performance data) can attain the
alternative Treatability Variance levels.
For on-site actions, during the implementation
of the selected treatment technology, periodic
analysis using the appropriate testing procedure
(i.e., total waste analysis for organics and TCLP for
inorganics) will be required to ensure that the
alternate treatment levels for the BDAT
constituents requiring control are being attained,
and thus, can be land-disposed without further
treatment.
Because of the variable and uncertain
characteristics associated with unexcavated wastes,
from which only sampling data are available,
treatment systems generally should be designed to
achieve the more stringent end of the treatment
range (e.g., 0.5 for chromium, see column 2 of
Highlight 2) to ensure that the treatment residuals
from the most contaminated portions of the waste
fall below the "no exceedance" levels (e.g., 6.0 ppm
for chromium). Should data indicate that the
treatment levels set through the Treatability
Variance are not being attained (i.e., treatment
residuals are greater than the "no exceedance"
level), OSCs should consult with the Response
Operations Branch at Headquarters.
Debris Wastes
OSCs should use the same process described
above for obtaining a Treatability Variance for
types of debris that are able to be treated to the
alternate treatment levels (e.g., paper, plastic).
However, for most types of debris (e.g., concrete,
steel pipes), which generally cannot be treated,
OSCs should use best management practices.
Depending on the specific characteristics of the
debris, these practices may include
decontamination (e.g., triple rinsing) or
destruction.
OBTAINING A TREATABHJTY VARIANCE
FOR SOIL AND DEBRIS WASTES
Once it is determined that a CERCLA waste is
a soil or debris, and that a Treatability Variance
will be necessary (i.e., the LDRs are applicable and
practicable for the removal action addressing soil
and debris wastes, and there is a reasonable doubt
that the LDR treatment standards can be met
consistently for all the wastes), OSCs should
Highlight 3 - INFORMATION TO BE INCLUDED IN A TREATABILITY VARIANCE
ACTION MEMORANDUM AND EE/CA TO OBTAIN A SOIL AND DEBRIS TREATABILITY VARIANCE
DURING CERCLA REMOVAL ACTIONS
Information to be included in a Treatability Variance Memorandum and EE/CA for a soil and debris Treatability Variance
during on-site and off-site removal actions is listed below. For off-site Treatability Variances, the complete list of documentation
requirements should be combined and submitted as a separate document.
ON-SITE AND OFF-SITE
Description of the soil or debris waste and the source of the contamination;
Description of the Proposed Action (e.g., "excavation, treatment, and off-site disposal");
Intent to comply with the LDRs through a Treatability Variance; and
For the selected removal action (emergency and time-critical) or for each alternative for which a Treatability Variance
is required (non-time-critical removals), the specific treatment level range to be achieved (see Highlight 2 to determine
these treatment levels and Highlight 7 for an example of the variance process).
OFF-SITE ONLY
Petitioner's name and address and identification of an authorized contact person (if different); and
Statement of petitioner's interest in obtaining a Treatability Variance.
-------
initiate the process of obtaining a Treatability
Variance.
In general, for on-site removal actions, the
Treatability Variance will be in the form of a
memorandum attached to the Action
Memorandum that documents the removal action
to be taken. This attachment should include the
necessary information to justify the need for a
Treatability Variance (see Highlight 3).
Treatability Variances for on-site removal actions
are approved by Regional Administrators or their
designees.
For off-site removal actions, an OSC must
submit to Headquarters a formal Treatability
Variance petition complying with the requirements
of 40 CFR 268.44 for site-specific variances.
Because most removal actions involve off-site
actions, OSCs will generally have to prepare
formal Treatability Variance petitions. The
process also should include local notice and an
opportunity for the public to comment, consistent
with the NCP administrative record requirements
in 40 CFR 300.820.
Processes for obtaining a Treatability Variance
depend upon the type of removal action. These
actions are classified according to the expediency
required in a given situation: (1) emergency, (2)
time-critical, and (3) non-time-critical. The
process for obtaining a Treatability Variance for
each of these removal actions is described below.
Each of these actions are defined in the NCP (55
FR 8666, March 8, 1990).
Emergency and Time-Critical Actions
There is no formal procedure for identifying and
analyzing alternatives for emergency and time-
critical removal actions. Because of the need for
a quick response to a release, the removal action
selection process may occur at different stages of
these removals, depending on the threats present.
Generally, a request for a Treatability Variance
is a memorandum attached to the Action
Memorandum. During emergency and some time-
critical responses, however, there may not be
sufficient information available about the need for
a Treatability Variance when the Action
Memorandum is signed. In those cases, the
request for a Treatability Variance should be a
memorandum (or formal petition, for off-site
actions) that amends the Action Memorandum.
Sample language for this Action Memorandum is
provided in Highlight 4. In all cases, the
Treatability Variance memorandum should be from
the OSC to Regional Administrators or their
Highlight 4 - SAMPLE LANGUAGE FOR
THE ACTION MEMORANDUM
Because existing and available data do not
demonstrate that the full-scale operation of
this treatment technology can attain the LDR
treatment standards consistently for all soil or
debris wastes to be addressed by this action,
this selected removal alternative will comply
with the LDRs through a Treatability
Variance. The treatment level range
established through a Treatability Variance
and achieved through [specify technology] will
attain the Agency's interim "treatment
levels/ranges" for each constituent restricted at
the site.
designee who has the authority to approve Action
Memoranda. Public comment on the Treatability
Variance should be solicited, whenever possible,
given the urgency of the situation, in accordance
with the administrative record and public
participation procedures described in the NCP (40
CFR 300.820).
Non-Time-Critical Actions
For these actions, sufficient lead-time is
generally available to conduct a more detailed
analysis of alternatives before the Action
Memorandum is signed. The process by which
alternatives are analyzed is described through the
Highlight 5 - SAMPLE LANGUAGE FOR
THEEE/CA
Description of Alternatives:
This removal alternative will comply with the
LDRs through a Treatability Variance under
40 CFR 268.44. This Variance will result in
the use of [specify technology] to attain the
Agency's interim 'treatment levels/ranges" for
the contaminated soil at the site.
Evaluation of Alternatives:
The LDRs are applicable and can be
practicably met for [Enter number] of [Enter
total number of alternatives] removal
alternatives being considered. [Enter number]
of the [Enter total number of alternatives]
alternatives would comply with the LDRs
through a Treatability Variance.
-------
steps of the Engineering Evaluation/Cost Analysis
(EE/CA) process. Sample language for the EE/CA
is provided in Highlight 5. The EE/CA process
includes gathering information that will aid in
determining whether an LDR requirement is
applicable and selecting a recommended action.
The EE/CA process is similar to the RI/FS
process and generally includes six steps:
Site characterization;
Identification of removal action objectives;
Identification of removal action
alternatives;
Analysis of removal action alternatives;
Comparative analysis of removal action
alternatives; and
Recommendation of removal action
alternative.
For non-time-critical removals, the information
to justify a Treatability Variance should be
included in a memorandum attached to the
EE/CA. Public comments on the Treatability
Variance should be solicited for a period of at
least 30 days when the EE/CA is made available, in
accordance with the administrative record
requirements in the NCP (40 CFR 300.820).
SUMMARY
Because of the important role the LDRs may
play in Superfund removals, OSCs need to
incorporate early in the removal process the
necessary investigative and analytical procedures to
determine if the LDRs are ARARs for on-site
removal alternatives that involve the "placement"
of wastes, and if compliance with the LDRs is
practicable. When the LDRs are ARARs and
compliance is practicable (or for off-site actions,
when LDRs are applicable), OSCs should
determine if treatment processes can attain either
the LDR treatment standards or the alternate
levels that would be established under a
Treatability Variance.
Once removal alternatives are identified, OSCs
should determine if alternatives involve placement
of restricted RCRA wastes, and if so, identify the
BOAT constituents requiring control. Next, OSCs
should evaluate those alternatives that involve
treatment and placement of restricted RCRA
hazardous wastes to ensure the technology
process(es) will attain the appropriate treatment
levels (i.e., either the LDR treatment standard or
Treatability Variance alternate treatment levels for
restricted RCRA hazardous wastes), and, in
accordance with Superfund goals, reductions of 90
percent or greater for Superfund primary
contaminants of concern). If a Treatability
Variance is necessary, a request for a Variance
must be made in the Action Memorandum (or in
an amendment to the Action Memorandum) and
EE/CA Report, and public comment solicited.
The results of these evaluations are also
documented in the Action Memorandum and
EE/CA Report. The Integration of the LDRs into
the removal actions is illustrated in Highlight 6.
An example of the process for complying with a
Treatability Variance for contaminated soil and
debris is presented in Highlight 7.
Highlight 6: LDRs IN THE REMOVAL PROCESS
Determine nature
and extent of site
contamination
Develop removal
alternatives tor
the site
Determine If LDRs
are ARARs for
removal alternatives
L
Determine rf tech-
nology(les) will
attain LDR treat-
ment standards or
Treatability
Variance alternative
treatment levels
Implement
remedy and
attain LDR
treatment standards
OR
Obtain Treatability
Variance and Implement
remedy to attain
alternative treatment
-------
Highlight 7: IDENTIFICATION OF TREATMENT LEVELS FOR A TREATABILTTY VARIANCE
As part of the removal investigation, it has been determined that soils in one location at a site contain F006 wastes and cresols (which site records
indicate were an F004 waste). Arsenic, which was determined to be a characteristic RCRA hazardous waste, also was found in soils at a separate
location. Cadmium, chromium, lead, and arsenic were identified as contaminants found in the highest concentrations. The concentration range of
all of the constituents found at the site included:
Constituent
Cadmium
Chromium
Cyanides
Lead
Total Concentration
(mgfkz)
2,270 - 16,200
3,160- 4,390
80 - 150
500 - 625
TCLP
(mg/1)
120-146
30- 56
1 - 16
2- 125
Constituent
Nickel
Silver
Cresols
Arsenic
Total Concentration
(me/kg)
100 - 140
1 - 3
50-600
800-1,900
TCLP
(me/I)
1-6.5
.25 -4
3-9
Four remedial alternatives are being considered: (1) Low temperature thermal stripping of soil contaminated with cresols followed by
immobilization of the ash; (2) Immobilization of the soil in a mobile unit; (3) In-situ immobilization; and (4) Capping of wastes. Each of these
alternatives must be evaluated to determine if they will result in significant reduction of the tenacity, mobility, or volume of the waste; whether
"placement" occurs; and, if "placement" occurs, whether the treatment will attain the alternative treatment levels established through a Treatability
Variance for the BOAT constituents requiring control.
STEP 1: IDENTIFY THE RESTRICTED CONSTITUENTS
Because F006 and F004 wastes have been identified in soils at the site, the Superfund site manager must meet alternate treatment levels
established through a Treatability Variance for the BOAT constituents. These constituents are: Cadmium, Chromium, Lead, Nickel, Silver,
and Cyanide for F006 and Cresols for F004.
AND DIVIDE THE CONSTITUENTS INTO THEIR STRUCTURAL/FUNCTIONAL GROUPS (see Highlight 2):
All of the F006 constituents are in the Inorganics structural/functional group.
Cresols are in the Other Polar Organic Compounds structural/functional group.
The action should result in the effective reduction (i.e., at least 90 percent) of all primary constituents of concern (i.e., Cadmium, Chromium,
Lead, and Arsenic).
STEP 2: COMPARE THE CONCENTRATION THRESHOLD FOUND IN HIGHLIGHT 2 TO THE CONCENTRATIONS FOUND AT THE SITE
AND CHOOSE EITHER THE CONCENTRATION LEVEL RANGE OR PERCENT REDUCTION RANGE FOR EACH RESTRICTED
CONSTITUENT.
Site Threshold
Constituent Concentration Concentration
Cadmium
Chromium
Lead
Nickel
Cresols
Cresols (TCLP)
Arsenic
120-
30-
2-
1 -
. 50-
.25
3
146 ppm :
56 ppm <
12.5 ppm <
6.5 ppm
600 ppm
4 ppm
9 ppm
> 40
: 120
: 300
« 20
> 100
< 10
ppm
ppm
ppm
ppm
ppm
ppm
Appropriate Range Range to be achieved
Concentration Percent Reduction (compliance analysis)
X 95-99.9 Percent
X
X
X
X
X
0.5
0.1
0.5
-6
-3
- 1
90-99 Percent
X
0.27
-1
Reduction (TCLP)
ppm (TCLP)
ppm (TCLP)
ppm (TCLP)
Reduction (TCLP)
ppm (TCLP)
STEP 3: IDENTIFY TREATMENT TECHNOLOGIES THAT MEET THE TREATMENT RANGES.
Highlight 2 lists the technologies that achieved the alternate treatment levels for each structural/functional group.
Because cresols are present in relatively low concentrations (assumed for the purposes of this example), a TCLP may be used to determine if
immobilization results in a sufficient reduction of mobility of this restricted RCRA hazardous waste. (Measures to address any volatilization of
organics during immobilization processes will be necessary.)
Immobilization also will result in the effective reduction in leachability (i.e., at least 90 percent) of arsenic, a Superfund primary contaminant
of concern.
Effective Reduction Meet Testability Variance
Alternative of Toxkitv, Mobility, Volume? "Placement?" Alternate Levels?
1. Low temperature stripping/
Immobilization
2. Immobilization in mobile unit
3. In-situ immobilization
Yes
Yes
Yes (Mobility)
Yes
Yes
No (LDRs not ARARs)
Yes
Yes
STEP 4: PREPARE ACTION MEMORANDUM OR EE/CE REPORT
Highlight 4 provides sample language for the Action Memorandum and Highlight 5 provides the sample language for the EE/CA to present the
intent to comply with the LDRs through a Treatability Variance.
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Superfund LDR Guide #7
Determining When Land Disposal Restrictions are
Relevant and Appropriate to CERCLA Response Actions
-------
A EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Superfund Publication:
9347.3-08FS
December 1989
Superfund LDR Guide #7
Determining When Land Disposal
Restrictions (LDRs) Are Relevant
and Appropriate to CERCLA
Response Actions
CERCLA Section L21(d)(2) specifies that on-site Superfund remedial actions shall attain "other Federal standards,
requirements, criteria, limitations, or more stringent State requirements that are determined to be legally applicable
or relevant and appropriate (ARAR) to the specified circumstances at the site." In addition, the National Contingency
Plan (NCP) requires that on-site removal actions attain ARARs to the extent practicable. Off-site removal and
remedial actions must comply with legally applicable requirements. This guide outlines the process osed to determine
whether the Resource Conservation and Recovery Act (RCRA) land disposal restrictions (LDRs) established under
the Hazardous and Solid Waste Amendments (HSWA) are "relevant and appropriate" to an on-site CERCLA response
action. (See Superfund LDR Guide #5 for determining when LDRs are applicable to CERCLA response actions.)
The guide also provides examples of when the LDRs are likely to be relevant and appropriate and when they are not.
With respect to contaminated soil and debris, EPA is undertaking a rulemaking to establish specific LDRs; until this
rulemaking is completed, EPA generally will not consider the LDRs to be relevant and appropriate for soil and debris
contaminated with hazardous substances that are not RCRA restricted wastes. More detailed guidance on Superfund
compliance with the LDRs is being prepared by the Office of Solid Waste and Emergency Response (OSWER).
LDR RELEVANT
DETERMINATIONS
AND APPROPRIATE
For on-site CERCLA responses that constitute
placement, and for which the LDRs have been
determined not to be applicable (i.e., the wastes being
placed are not prohibited or restricted RCRA wastes),
site managers should evaluate whether the LDRs are
relevant and appropriate. As discussed in the
CERCLA Compliance with Other Laws Manual (EPA,
August 8, 1988), relevant and appropriate decisions
require best professional judgment of site-specific
factors to determine whether a requirement addresses
problems or situations sufficiently similar to the
circumstances of the release, or remedial action
contemplated, and is well-suited to the site, and
therefore, is both relevant and appropriate.
Section 300.400(g)(2) of the proposed NCP [53 FR
at 51436 (December 21, 1988)] outlines a number of
factors pertaining to CERCLA situations and potential
ARARs which should be compared to determine
whether a requirement is both relevant and
appropriate. The four pertinent factors to compare
when evaluating the potential relevance and
appropriateness of the LDRs are: (1) the action or
activities regulated by the requirement (e.g., placement
on the land) and the remedial action contemplated; (2)
the purpose of the requirement and the purpose of the
CERCLA action; (3) the substances regulated by the
requirement and the substances found at the CERCLA
site; and (4) the medium regulated or affected by the
requirement and the medium contaminated or affected
at the CERCLA site. These factors are evaluated to
determine whether the circumstances of the release
and remedial action contemplated are such that use of
the LDR requirements is well-suited to CERCLA
response objectives.
The evaluation of the circumstances of a release
is conducted as part of the remedial investigation,
during which information is collected on contaminant
sources, potential routes of migration, and potential
human and environmental receptors of concern. The
results of this effort (which is ultimately documented
in the site characterization and baseline risk assessment
chapters of the RI/FS report) are used to establish
remedial action objectives for the areas or media
contaminated at the site that pose a threat to human
health and the environment. The site-specific
CERCLA response objectives of the remedial action
contemplated should be compared with the purpose or
objectives of the LDRs as a first step in determining
the potential relevance and appropriateness of the
LDRs [proposed NCP factors (a) and (e)].
The objective of the LDRs is to achieve
reductions in the toricity and/or mobility of a
-------
hazardous waste, based on application of the best
demonstrated available technology (BOAT), prior to its
land disposal. While this objective will often be
compatible with remedial alternatives designed to
destroy highly concentrated, toxic, and mobile materials
such as liquids, other remedial alternatives involving
treatment of the principal threats of a site may have
different objectives to which the LDRs are not well-
suited.
Once a decision is made that achieving BDAT
reductions in the toxicity and/or mobility of a waste
source is compatible with CERCLA response objectives
for the site, site managers should utilize information on
waste constituents and matrices collected as part of the
site characterization to evaluate whether a CERCLA
waste is "sufficiently similar" to a listed RCRA waste
code or family of waste codes (e.g., K048-K052,
petroleum refining wastes) such that the LDR standard
for that waste code is appropriate for the CERCLA
waste.
In determining whether a CERCLA waste is
sufficiently similar, site managers should consider
whether the BDAT used to set the LDR standard
vvould be effective for the CERCLA waste.
[Technologies other than those used to set the BDAT
standards may be considered, although they must be
regarded as capable of meeting the promulgated
:oncentration requirements.) Although a constituent-
3y-constituent analysis is not necessary for relevant
uid appropriate determinations, a general comparison
}f the waste constituents and matrices is useful for
dentifying waste codes to which a CERCLA waste may
>e similar, and therefore, helpful in the identification
)f technologies that may be appropriate for
:onsideration.
If a CERCLA waste that consists of a complex
nixture of several different wastes occurs in a different
nedium (e.g., soil) or matrix (BDAT standards may be
-stablished for specified matrices, such as wastewaters,
lonwastewaters, or both) from what is specified for a
>articular restricted waste code or contains
ncompatible waste constituents, use of BDAT may not
>e appropriate for that waste, and therefore, the LDRs
NOTE: If the LDRs are determined to be
relevant and appropriate requirements for a
CERCLA action (i.e., there is a close match
between the CERCLA and LDR objectives, and
a close match between the constituents/matrix of
the CERCLA waste and the constituents/matrix
of the relevant RCRA waste code), but the
treatment process involved hi the remedy does
not achieve BDAT levels in the field as
anticipated, a Treatability Variance establishing
alternate treatment levels should be sought.
would not be relevant and appropriate [proposed NCP
factor (b)]. It has been the experience of the
Superfund program that Treatability Variances are
frequently necessary for soil and debris contaminated
with a restricted RCRA waste (see Superfund LDR
Guide #6A), because the promulgated LDR standards
are based on treating less complex matrices of
industrial process wastes. As a logical corollary to this
finding, the Agency believes that LDRs generally would
not be "relevant and appropriate" requirements for soil
and debris contaminated with non-RCRA restricted
wastes. However, the Agency plans to undertake a
rulemaking that will prescribe applicable standards for
the treatment of soil and debris contaminated with
RCRA-restricted wastes. In the future, these standards
may be relevant and appropriate to the treatment of
soil and debris contaminated with non-restricted wastes.
Examples illustrating the relevant and appropriate
determination process follow:
A number of drums containing hazardous wastes
are discovered during a site investigation.
Although no written documentation or specific
knowledge of the source is available to identify
with certainty the origins of the wastes, the
laboratory analyses indicate that they contain very
high concentrations of a predominantly liquid
waste indicative of industrial waste streams.
Therefore, maximum destruction of the drum
contents is established as the remedial action
objective. Due to the general similarity of the
bulk liquids to the spent solvents listed in the
F001-F005 waste codes, the CERCLA site
manager determines that use of incineration (one
of the BDAT identified in the solvent and dioxin
rule for that family of waste codes) would be
technically suitable. Therefore, the LDRs would
be relevant and appropriate for an alternative
involving the treatment and placement of the
drummed waste.
A CERCLA waste mixture from an unknown
source is found to consist of wastes similar to
F021 dioxin-containing wastes (i.e., they contain
constituents found in dioxin-containing wastes)
and mercury. Because use of incineration -- the
BDAT for dioxin-containing wastes - would not
be compatible with a waste also containing
mercury, application of the LDR treatment
standards to this waste mixture would not be
appropriate. Therefore, the LDRs would not be
relevant and appropriate to a CERCLA response
involving the placement of this waste mixture.
(Alternate methods of treating the waste might
still be necessary to satisfy both the CERCLA
statutory requirement to utilize treatment to the
maximum extent practicable and the program
expectations that are outlined in the proposed
NCP.)
-------
Superfund LDR Guide #8
Compliance with Third Third Requirements Under
Land Disposal Restrictions
-------
United Slates
Environmental Protection
Agency
Office of
Solid waste and
Emergency Response
Supertund Publication:
9347.3-08FS
October 1990
&EPA
Superfund LDR Guide #8
Compliance with Third Third
Requirements under
the LDRs
Office of Emergency and Remedial Response
Hazardous Site Control Division OS-220
Quick Reference Fact Sheet
The 1984 Hazardous and Solid Waste Amendments (HSWA) require EPA to promulgate regulations restricting the land
disposal of RCRA hazardous wastes. EPA previously promulgated regulations restricting the land disposal of solvent- and diatin-
containing, California list, First Third, and Second Third wastes. This guide (the eighth in a series of LDR guides prepared by the
Office of Emergency and Remedial Response (OERR)) summarizes the key provisions of the Third Third LDR nile and discusses
potential implications for CERCLA response actions. More detailed guidance on Superfund compliance with the LDRs is being
prepared by the Office of Solid Waste and Emergency Response (OSWER).
The Third Third rule, promulgated on May 8, 1990,
restricts all remaining RCRA hazardous wastes (listed as of
November 8, 1984) for which treatment standards had not
previously been set. Wastes for which LDR standards are not
established include certain wastes that were newly listed or
newly identified after November 8, 1984, mineral processing
wastes previously excluded from regulation under the Bevill
Amendment, and certain newly identified characteristic wastes.
The rule sets treatment standards and effective dates for the
characteristic hazardous wastes, First and Second Third wastes
that were "soft hammered." multi-source leachate, and mixed
hazardous and radioactive wastes. EPA granted a 90-day
national capacity variance for all wastes in the Third Third
rule, excluding those wastes already receiving a two-year
national capacity variance. In addition, EPA provided
important policy guidance on the following issues:
Continued application of the California list restrictions;
» Interpretation of the dilution prohibition; and
Application of LDR standards to lab packs.
TREATMENT STANDARDS
As with previous LDR rules, EPAset concentration-based
treatment standards for Third Third wastes whenever possible
(thus allowing use of any technology that can achieve the
specified performance level). However, many Third Third
treatment standards are set as methods of treatment (e.g.,
incineration), because the Agency currently has no means of
calculating valid concentration-based standards that can be
used for compliance monitoring. To comply with the LDRs
when EPA has specified a method(s) of treatment, site
managers must either use the specified technology to treat the
waste or demonstrate that an alternative technology can
achieve a level of performance equivalent to that of the
specified technology.
In cases where soil and debris are contaminated with
RCRA hazardous wastes for which the treatment standards
are methods of treatment, site managers should continue to
comply with the LDRs through a Treatability Variance, as
outlined in Superfund LDR Guides #6A and #6B. [See
Preamble to the 1990 National Contingency Plan (NCP), 55
FR 8760-61, March 8, 1990.]
NATIONAL CAPACITY VARIANCES
EPA granted a 90-day national capacity variance, until
August 8, 1990, for all wastes included in the Third Third
Rule. EPA also granted certain wastes national capacity
variances from the LDRs for up to two years (from May 8,
1990 until May 8, 1992), based on inadequate treatment
capacity. The surface-disposed wastes receiving a two-year
national capacity variance are listed in Highlight 1.
CHARACTERISTIC WASTES
Among the wastes restricted in the Third Third rule are
those wastes exhibiting one or more of the RCRA hazardous
characteristics (i.e., ignitability, corrosivity, reactivity, or
toxJcity). EPA set treatment standards for the characteristic
wastes both as concentration-based levels and methods of
treatment. For most characteristic wastes with concentration-
based treatment levels, EPA generally set the LDR treatment
standards at the characteristic level that defines these wastes
as hazardous. For example, EPA currently defines a D009
waste as mercury that leaches more than 0.2 mg/l using the EP
toxicity test; the treatment standard for mercury is 0.2 mg/l
using the TCLP test. Because EPA established concentration
levels for these wastes at the characteristic level, treatment to
the LDR treatment standards will render the treated wastes
non-hazardous. Therefore, the treated wastes may be disposed
of in Subtitle D landfills. [Note: the Agency recently
promulgated the toxicity characteristic (TC) rule, which
requires use of the TCLP test beginning September 25, 1990
as a means of determining whether a waste is characteristic.
Therefore, as of September 25, 1990, the TCLP will be used
to determine whether a waste is characteristic and, in most
cases, for compliance with LDR standards prior to disposal.]
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Highlight 1 - SURFACE-DISPOSED WASTES
RECEIVING TWO-YEAR NATIONAL CAPACITY
VARIANCES IN THE THIRD THIRD RULE
Technology
Wasle Code*
All All scheduled mixed
hazardous/radioactive wastes
and D004-D011 inorganic
solid debris
Vitrification D004 P011
K031 P012
K084 P036
K101 P038
K102 U136
P010
Combustion of Sludge/Solids F039b K048-K052'
Acid Leaching and
Chemical Precipitation
(low mercury) and mercury
retorting (high mercury)
Secondary Smelting
Thermal Recovery
Incineration, vitrification,
and mercury retorting
D009
K106
P065
P092
U151
D008"
P087 (wastewater and
nonwastewater)
Soil and
Debris
3 Variances are granted only to the nonwaslewater forms,
unless otherwise noted.
b Multi-source leachate.
c Capacity extension only until November 8, 1990.
d D008 lead-acid batteries.
For the pesticide wastewaters, EPA set treatment
standards as specified technologies. For pesticide
nonwastewaters, the treatment standards are set as total waste
concentrations (not extract concentrations). Although these
total waste concentrations appear to be higher than the levels
that define the wastes as hazardous, given the 20 to 1 dilution
factor inherent in the TCLP and EP protocols, no correlation
between the treatment standard and the characteristic level can
be assumed. Therefore, testing likely will be necessary to
determine whether these wastes remain hazardous once
treated to the LDR treatment standards (see Highlight 2).
For characteristic wastes with specified methods of
treatment (e.g., certain D001 ignitable wastes), site managers
must treat the wastes with the specified technology or
demonstrate that an alternative technology can achieve an
equivalent level of performance. Following treatment, wastes
should be tested to determine whether the wastes have been
rendered non-hazardous and evaluated as to whether the
residues exhibit characteristics other than those for which the
waste was originally treated. In some cases, the use of a
BOAT treatment technology to remove one characteristic
Highlight 2 - THIRD THIRD CHARACTERISTIC
PESTICIDE NONWASTEWATER TREATMENT
STANDARDS
Waste Name
LDR Treatment EP Toricity/TC
Standard (mg/1) Level (mg/1)*
(total waste)
D012 Endrin 0.13
D013 Lindane 0.066
D014 Meihoxychlor 0.18
D015 Toxaphene
D016 2,4-D
D017 2,4,5-TP
13
10.0
7.9
0.02
0.4
10.0
0.5
10.0
1.0
These also will be the regulatory standards under the
TCLP when it becomes effective on September 25, 1990.
could result in a residue that exhibits a different characteristic
and, therefore, the residue may require further treatment. For
example, incineration of an ignitable D001 waste may generate
an ash that exhibits the characteristic of toxicity for certain
metals. This ash would need to be treated for the additional
characteristic to meet the LDR treatment standard before
disposal. If the treatment has rendered the waste non-
hazardous, the residues may be disposed of in a Subtitle D
facility.
When a listed waste also exhibits a characteristic, the waste
must be treated to the treatment standard established for both
the listed waste and its characteristic, unless the characteristic
constituent or property is specifically addressed through the
treatment standard for the listed waste. For example, if F006
waste (for which lead is a BDAT constituent) also exhibits the
hazardous characteristic of lead, the waste must be treated
only to the treatment standard for F006, because it is the most
waste-code specific standard and lead is a constituent directly
addressed by the F006 treatment standard. If an F001 solvent
waste also exhibits the characteristic of lead, however, the
waste must be treated to meet the F001 solvent standard and
the D008 lead treatment standard, because lead is not a
BDAT constituent for FOOl waste. Therefore, it is important
for site managers to determine all of the listed and
characteristic codes that may apply to a waste.
Because EPA divided several of the characteristic wastes
into treatability groups for purposes of establishing treatment
standards, (see Highlight 3), site managers should determine
which treatability group(s) are present during a response action
and comply with their respective treatment standards.
MULTI-SOURCE LEACHATE
EPA has listed multi-source leachate, defined as leachate
derived from the treatment, storage, disposal, or recovery of
more than one listed hazardous waste, as a new waste code,
F039, and established one set of wastewater standards and one
-------
set of nonwastewater standards for this code. These standards
set concentration levels for the entire BOAT list of
constituents (approximately 200 in total) that may be found in
multi-source leachate (see Highlight 4). [Note: treatment
standards for the constituents under F039 may differ from
standards for the same constituents in other more specific
waste codes.]
CERCLA compliance with the F039 treatment standards
will involve the analysis of the BOAT constituents present in
waste streams extracted through leacbate collection systems,
and the treatment of such wastes to meet the appropriate
levels for these constituents. Because of the RCRA derived-
from rule, residuals from the treatment of multi-source
leachate are restricted under the LDRs. [Note: Leachate
derived from the exclusive management of more than one of
the listed dioxin-containing hazardous wastes (e.g., F020-F023
and F026-F028) is classified as a single-source dioxin waste and
is not considered multi-source leachate.]
MIXED RADIOACTIVE WASTES
EPA promulgated treatment standards expressed as
specified methods for the following four categories of mixed
hazardous and radioactive wastes: (1) hydraulic oils
contaminated with mercury, (2) wastes containing elemental
mercury, (3) wastes containing elemental lead, and (4) D002,
D004-D011 radioactive high-level wastes generated during
reprocessing of fuel rods. For other mixed wastes, the
Highlight 3 - SUBCATEGORIES
CHARACTERISTIC WASTES
FOR
The following are RCRA characteristic wastes for which
EPA established (reliability groups in addition to
waslewaiers and nonwastewaters:
DOU1 Ignilables
- Ignitable liquids
-- organic liquids
-- aqueous liquids
-- wastewalers
- Ignilable reactives
- Oxidizers
- Ignilable compressed
gases
D002 Corrosives
- Acids
- AJkalines
- Other corrosives
D003 React ives
- Reactive cyanides
- Explosives
- Water reaclives
- Reactive sulfides
- Other reaclives
Note: Those characteristic wastes not listed here have
wastewater and nonwasiewater categories treatability groups
only.
D006 Cadmium
- Wastewaters
- Nonwastewalers
- Cadmium Batteries
D007 Chromium
- Waslcwaters
- Nonwaslcwaiers
- Chromium Bricks
- Chromium Batteries
O008 Lead
- Waslewatcrs
- Nonwastewalers
- Lead-Acid Batteries
Highlight 4 - EXAMPLE OF F039 MULTI-SOURCE
LEACHATE TREATMENT STANDARD'
(Standards are set in a similar manner for each of the
approximately 200 BOAT constituents.)
Total Concentration'1
Waslewater
Acetone
Acenaphthalene
Acenaphthene
Acetonitrile
Acetophenone
Nonwastewater
Acetone
Acenaphlhalene
Acenaphthene
Acelophenone
0.28
0.059
0.059
0.17
0.010
Total Concentration'*
(mg/kgl
160.0
3.4
9.1
9.6
Notes:
' F039 nonwastewaters received two year national capacity
variances.
+ Total concentration for wastewaten based on the
maximum for any single grab sample
** Total composition for nonwastewaters based on
maximum for any 24-hour composite.
treatment standard for the RCRA hazardous waste code is the
standard in effect for the hazardous portion of mixed wastes.
EPA determined that inadequate nationwide treatment
capacity exists for all Third Third surface-disposed mixed
radioactive wastes, and granted these wastes a two-year
national capacity variance. Mixed wastes containing only spent
solvents and dioxins, or California list wastes, are still subject
to the applicable treatment standards; no capacity variances are
in effect for these wastes.
CALIFORNIA LIST WASTES
On July 8, 1987, EPA promulgated a final rule establishing
treatment standards for California list wastes containing PCBs
and certain HOCs, and codified the statutory prohibition on
liquid corrosive wastes. The statutory prohibition is in effect
for the California list wastes containing free cyanides, metals,
and the California list dilute HOC wastewaters. As discussed
in Superfund LDR Guide #2, Complying With the California
List Restrictions Under the Land Disposal Restrictions (LDRs),
when the California list waste restrictions overlap with waste-
code specific treatment standards, the waste-code specific
treatment standards apply. Therefore, most California list
prohibitions are now superseded by more waste-code specific
prohibitions and treatment standards as a result of the Third
-------
Third rule. However, the California list prohibitions will
continue to apply in the cases outlined below:
Liquid hazardous wastes that contain over SO ppm PCBs,
where the PCBs are not regulated by the treatment
standard;
HOC-containing wastes that are identified as hazardous
by a characteristic property not involving HOCs, such as
an ignitable waste that also contains greater than 1,000
ppm HOCs;
Liquid hazardous wastes that contain a total concentration
equal to or greater than 134 mg1 of nickel and/or 130
mg/l of thallium (because these two constituents are not
regulated under the characteristic of toxicity); and
Wastes with a national capacity variance that are also
California list wastes, until the waste-code specific
treatment standards become effective.
LAB PACKS
In the Second Third rule, EPA reaffirmed that all
restricted wastes in lab packs being land disposed must comply
with the LDR treatment standards for each waste in the lab
pack. In the Third Third rule, EPA established two alternate
treatment standards for lab packs: (1) incineration followed by
treatment (e.g., stabilization) to meet the appropriate
individual treatment standard for each EP toxic metal present
in lab packs containing only organo-metallic wastes (listed in
40 CFR 268 Appendix IV); and (2) incineration as a method
for lab packs that contain only certain organic wastes (listed
in 40 CFR 268 Appendix V).
Where possible, site managers should segregate lab packs
containing wastes found in 40 CFR 268 Appendix IV and V
to facilitate appropriate treatment determination. Lab packs
that contain PCBs or dioxins must continue to meet the
treatment standards for those wastes. For example, a lab pack
containing only dioxin-containing wastes (F020-F023 and F026-
F028), a mixture of dioxin-containing wastes and organic
hazardous wastes, or California list PCBs and dioxin-containing
wastes must be incinerated according to the applicable
standards for those wastes.
DILUTION PROHIBITION
In the Third Third rule, EPA reaffirmed the existing
dilution prohibition contained in 40 CFR 268.3 for RCRA
listed wastes, which restricts dilution through mixing of
hazardous wastes unless such dilution meets the standard in
§ 3004(m) of substantially reducing the prohibited waste's
toxicity or mobility. EPA has clarified, however, that the
aggregation of wastes does not constitute impermissible
dilution if the wastes are all legitimately amenable to the type
of treatment being used. Dilution also is allowed in the
following cases for characteristic wastes:
When characteristic wastes are managed in wastewater
treatment systems discharging under the pretreatment
program or an NPDES permit regulated under the Clean
Water Act (CWA) (unless a method is specified), or
disposing in Class 1 underground injection wells regulated
under the Safe Drinking Water Act (SDWA), if
nonhazardous at the point of injection.
When dilution removes the characteristic property from
non-toxic characteristic wastes. [EPA considers high total
organic carbon (TOC) ignitable nonwastewaters, reactive
cyanide wastes, reactive sulfide wastes, and EP toxic metals
and pesticides to be toxic characteristic wastes, and dilution
is not allowed for these wastes. All other D001-D003
wastes are considered non-toxic.]
Site managers should ensure that any dilution occurring as
a result of waste streams being combined is for acceptable
purposes (e.g., pretreatment or treatment). The dilution
prohibition may be violated when wastes that are not amenable
to the same type of treatment are aggregated. For example,
if a listed hazardous waste containing metals is aggregated with
organic wastewaters resulting in metal levels no longer
exhibiting the characteristic, and the aggregated mixture is sent
to biological treatment, the dilution prohibition would be
violated because biological treatment is not an appropriate
treatment for metal-bearing toxic wastes, (i.e., the metal
removal was not as a result of treatment, but was from
dilution).
NOTICE: The policies set out in this memorandum are intended solely as guidance. They are not intended, nor can they be relied
upon, to create any rights enforceable by any parry in litigation with the United Slates. EPA officials may decide to follow the guidance
provided in this memorandum, or to act at variance with the guidance, based on an analysis of specific site circumstances. The Agency
also reserves the right to change this guidance at any time without public notice.
-------
ARARs Q's and A's:
Compliance with Toxicity Characteristics
Parti
-------
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9234 2-08/FS
May 1990
oEPA
ARARs Q's & A's
Compliance With the Toxicity Characteristics Rule: Part
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 on-site remedial actions must at least attain (or justify a waiver of) 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 FR 8666, 8843 (March 8, 1990) (to be
codified at 40 CFR section 300.415(i)(1990)), and 55 FR 8666, 8852 (March 8, 1990) (to be codified at 40 CFR section
300.435(b)(2)(1990)).
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), and has provided training to Regions and States on the identification
of and compliance with ARARs. This "ARARs Q's and A's" is part of a series that provide guidance on a number of
questions that arose in developing ARAR policies, in ARAR training sessions, and in identifying and complying with
ARARs at specific sites. This particular Q's and A's Fact Sheet addresses compliance with the recently promulgated Toxicity
Characteristics Rule (55 FR 11798 (March 29, 1990)).
Ql. How are wastes characterized as hazardous under
RCRA?
A RCRA Subtitle C requirements are applicable to
CERCLA response actions if the waste is a RCRA
hazardous waste, and either the waste was initially
treated, stored, or disposed of after the effective date
of the particular RCRA requirement, or the activity
at the CERCLA site constitutes treatment, storage,
or disposal, as defined by RCRA RCRA uses the
following two procedures to define wastes as
hazardous: (1) the listing procedure, which involves
identifying specific industrial or process wastes that
pose hazards to human health and the environment;
and (2) the hazardous characteristics procedure,
which involves identifying properties or
"characteristics" that, if exhibited by any waste,
indicate a potential hazard if the waste is not
properly controlled. See 40 CFR section 261.3(a)(2).
The new Toxicity Characteristics (TC) rule concerns
one of four characteristics that indicate a potential
hazard (the others are ignitability, reactivity, and
corrosivity). A waste is a TC waste if any of the
chemicals listed in Highlights 1 or 2 are found in the
leachate at concentrations equal to or greater than
their regulatory levels.
Highlight 1: NEW CHEMICALS REGULATED
UNDER THE TC RULE AND THEIR LEACHATE
REGULATORY
Benzene
Carbon tetrachforide
Chlordanc
Chloro benzene
Chloroform
m-Crescrf
o-Cresol
p-Cresol
1 ,4-Dichlorobenzcne
1,2-Dichloroethane
1,1 -Dichtoroethylene
2,4-DinitroioIuene
Heptachlor (and its hydroxide)
Hexachlor- 1 ,3-bmadiene
Hexachlorobenzene
Hexach toroethane
Methyl ethyl ketone
Hitrobenzene
Pentachlorophenol
Pyridine
Tetrachloroethylene
Trichloroethylene
2,4,5-TrichIorophenol
2,4,6-Trichlorophenol
Vinyl chloride
* interim regulatory level
LEVELS
0.50 mg/1
0.50 mg/1
0.03 mg/1
100.0 mg/1
6.0 mg/1
200.0 mg/1
200.0 mg/1
200.0 mg/1
7.5 mg/I
0.50 mg/1
0.70 mg/1
0.13 mg/1
0.008 mg/1
0.5 mg/1
0.13 mg/I
3.0 mg/1
200.0 mg/1
2.0 mg/1
100.0 mg/1*
5.0 mg/1
0.7 mg/1
0.5 mg/1
400.0 mg/1
2.0 mg/1
0.20 mg/1
-------
Q2. What are the major provisions of tlie new TC rule?
A. The final TC rule adds 25 organic chemicals to the
list of waste constituents which, if present in waste at
or above the regulatory levels set in the rule (see
Highlight I), make the waste a hazardous waste.
Those 25 chemicals have been added to the 8 metals
and 6 pesticides on the existing list of TC waste
constituents (sec Highlight 2). The TC rule also
announced that 13 additional chemicals may be
added to the TC list after EPA establishes their
regulatory levels. Finally, the new TC rule replaces
the Extraction Procedures (EP) with another test for
determining toxicity (for both the new and existing
chemicals regulated for the characteristic of toxicity).
The new test is called the Toxicity Characteristics
Leaching Procedure (TCLP). The impetus behind
the development of the TCLP was the need to
identify those wastes that are likely to leach
hazardous concentrations of organic compounds.
Note: To determine compliance with RCRA land
disposal regulations, the EP is still available for
wastes that are not considered wastewater (i.e., for
soils and sludges that contain more than 1% total
suspended solids) and that contain either any
amount of lead, or arsenic when it is the primary
hazardous constituent (i.e., the highest constituent
concentration) in the waste (see section 3(e)(8) of
the final RCRA Third Third Rule, unpublished at
the time of this printing).
Highlight 2: CHEMICALS ALREADY
REGULATED FOR TOXICITY
CHARACTERISTICS AND THEIR LEACHATE
REGULATORY LEVELS
Arsenic
Barium
Cadmium
Chromium
Endrin
Lead
Lindane
Mercury
Methoxychlor
Selenium
Silver
Toxaphene
2,4-Dichloro-
phenoxycctic acid
2,4,5-Trichloropheno-
xypropionic acid
5.0 mg/1
1QO.O mg/1
1.0 mg/1
5.0 mg/1
0.02 mg/1
5.0 mg/l
0.4 mg/1
0.2 mg/1
10.0 mg/1
1.0 mg/1
5.0 mg/1
0.5 mg/1
10.0- mg/1
1.0 mg/1
Q3. How does the new TC rule affect the regulatory
levels of the potential TC wastes already regulated?
A. The regulatory levels of the eight metals and six
pesticides remain the same (see Highlight 2 for their
levels). These constituents must now be tested using
the TCLP to determine whether they exceed their
regulatory levels. It is important to note that the
EP and the TCLP may produce different results;
wastes not hazardous under the EP may be
hazardous under the TCLP.
Q4. How does the TCLP differ in approach from the EP
in identifying the toxicity characteristic?
A. The primary differences between the TCLP and the
EP are: (1) the TCLP uses two leaching media
where the medium is determined by the pH of the
waste (there is no continual pH adjustment); (2) the
TCLP requires the waste to be ground or milled
(there is no structural integrity procedure); (3) the
TCLP requires a shorter extraction time (18 hours
for the TCLP versus 24 hours for the EP); and (4)
the TCLP is easier to run and the test results are
more easily reproduced.
Q5. What is the current status of the TC rule as a
potential ARAR for the Superfund program?
A. The TC rule was promulgated on March 29,1990. It
became a potential ARAR for all decision documents
(i.e., RODs and action memoranda) signed after that
date. For actions carried out during the interim
period prior to the effective date (i.e., September 25,
1990), the TC rule would not be applicable, but may
be relevant and appropriate.
Q6. How will the TC rule affect Superfund Records of
Decision (RODs) that have already been signed?
A. The NCP states that ARARs "freeze" at the time of
ROD signature. See 55 FR 8666, 8757, March 8,
1990, (to be codified at 40 CFR 300.430(f)(l)(ii)(B)).
TC requirements were promulgated on March 29,
1990, and thus would not be ARARs for RODs
signed before that date. For such RODs, the TC
requirements are newly promulgated requirements,
and thus should be attained only when EPA
determines that these requirements are ARARs, and
that they must be met for the remedy to be
protective. Newly promulgated or modified
requirements like the TC rule will be considered
during the 5-year review of the remedy, or sooner, if
appropriate, to determine whether the remedy is still
protective. Regions should review pre-TC rule
RODs to ensure that any on-site disposition of
wastes still meets the standard of protectiveness.
(This issue will be discussed further in the
-------
forthcoming TC implementation Fact Sheet.) If
EPA determines during the remedy review that the
TC requirements must be attained, a ROD
amendment or Explanation of Significant Differences
(ESD) should be issued. See 55 FR 8666, 8757
(March 8, 1990) (to be codified at 40 CFR
300.430(0(1 )(ii)(B)).
Q7. What arc some potential overall effects of the TC
rule on the Stiperfuml program?
A. Wastes containing any of the newly-regulated
chemical constituents in the TC rule may be subject
to RCRA regulations based on the toxicity
characteristic, regardless of the source of a particular
waste or whether the waste is a RCRA listed waste.
In addition, because the TC rule expands the list of
potential TC wastes that need to be evaluated for the
characteristic of toxicity, the amount of wastes
considered to be RCRA hazardous wastes at a
CERCLA site will potentially expand. Once a waste
is considered to be a RCRA hazardous waste, other
RCRA requirements may be applicable or relevant
and appropriate, such as closure, minimum technology
disposal restrictions, and the land disposal restrictions.
In addition, remedial alternatives involving off-site
shipment of TC wastes must involve Subtitle C
facilities, rather than Subtitle D facilities.
NOTICE: The policies set out in this fact sheet are
intended solely as guidance. They are not intended,
nor can they be relied upon, to create any rights
enforceable by any party in litigation with the United
States. EPA officials may decide to follow the
guidance provided in this fact sheet, or to act at
variance with the guidance, based on an analysis of
specific site circumstances. The Agency also reserves
the right to change this guidance at any time without
public notice.
In the near future, OERR will issue another Fact Sheet that discusses technical issues that may arise during the
implementation of the TC rule at Superfund sites. The TC implementation Fact Sheet will be Part II to this
ARARs Q's & A's Fact Sheet on the TC rule.
-------
CERCLA Compliance with RCRA Toxicity Characteristics
Part II
-------
EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Superfund Publication:
9347.3- 11FS
October 1990
CERCLA Compliance
with the RCRA Toxicity
Characteristics (TC) Rule: Part it
Office of Emergency and Remedial Response
Hazardous Site Control Division OS-220
Quick Reference Fact Sheet
CERCLA remedial actions must comply with the requirements of the Resource Conservation and
Recovery Act (RCRA) when they are determined to be applicable or relevant and appropriate requirements
(ARARs) unless a waiver is justified. For RCRA Subtitle C hazardous waste requirements to be applicable,
the CERCLA response action must constitute either treatment, storage, transport, or disposal of a RCRA
hazardous waste. Therefore, to make determinations about the applicability or relevance and appropriateness
of RCRA requirements, site managers need to understand how to identify whether a CERCLA waste is a
RCRA hazardous waste (including when a waste exhibits the newly promulgated toxicity characteristics (TC)).
The purpose of this guide, the second dealing with the TC rule (see ARARs Qs &. As, Compliance with the
Toxicity Characteristics Rule: Part I, May 1990, Publication 9234.2-08FS) is to provide a general framework
for managing CERCLA wastes in accordance with the new requirements.
In order to ensure that all CERCLA response
actions comply with RCRA requirements that are
applicable or relevant and appropriate (including
removal actions when compliance is determined to
be practicable), site managers need to know
whether contamination at the Superfund site
includes RCRA hazardous wastes (see Highlight
1). In determining the presence of RCRA wastes
that are hazardous because they exhibit the
characteristic of toxicity, site managers must take
into account a new RCRA regulation, the Toxicity
Characteristic (TC) rule, which EPA promulgated
on March 29, 1990 and which takes effect on
September 25, 1990.
THE TOXICITY CHARACTERISTIC RULE
The TC rule (55 FR 11798, March 29, 1990)
requires use of the toxicity characteristic leaching
procedure (TCLP) test in place of the extraction
procedure (EP) test to determine whether wastes
exhibit the characteristic of toxicity. As with the
EP, site managers are not required to test their
wastes to determine if they exhibit the toxicity
characteristic; knowledge of the wastes may be
sufficient to make this determination [40 CFR
261.10(a)(2)(ii)]. Specific knowledge of CERCLA
wastes will not be available at many Superfund
sites, however, so that testing may be necessary.
Highlight 1
TYPES OF RCRA HAZARDOUS WASTES
Listed Wastes: Wastes from specific processes
or from specific or non-specific sources that EPA
has "listed" as RCRA hazardous wastes. These
wastes carry the waste codes "F, K, P or U." For
example:
K015 Still bottoms from the production of
benzyl chloride.
Characteristic Wastes. Wastes that exhibit any
one of four hazardous characteristics (these
wastes carry a "D" waste code):
Ignitability
Corrosivity
Reactivity
Toxicity
Note: A RCRA hazardous waste must first be a
solid waste, which is defined by RCRA as
any material that is disposed of (i.e.,
abandoned, recycled in certain ways, or
considered inherently waste-like).
Exclusions from the definition (e.g.,
domestic sewage sludge, household
wastes) are listed in 40 CFR 261.4(a) and
V. Printed on Recycled Paper
-------
Highlight 4
CHARACTERIZATION AND LDR COMPLIANCE OF RCRA CHARACTERISTIC WASTE: EP vs. TCLP
Promulgation Promulgation
of TC Rule of Third Thirds
March 29, 1990 May 8, 1990
Effective Date
of Third Thirds
August 8, 1990
Effective Date
of TC Rule
September 25, 1990
April
July
August
EP lo taat lor
characteristic
EP or TCLP 10 tael
lor characteristic
S«p»«mt»f
Oetobar
Novwnbar
0*e*mb«r
EP or TCLP lo test
lor characteristic;
TCLP to t«M lor
compllanca with
LOR trsetment
stsndsrds
(EP or TCLP lor
rMnlc and laad)
TCLP to t««( for
characteristic;
TCLP to Hat for
compllanc* with
LOR IraatnMnl
atandarda
(EP or TCLP for
ara«nlc and toad)
Pre-ROD
During an on-going RI/FS, or in cases where
the investigation is complete but the ROD has not
yet been signed, site managers should assess (either
through use of the TCLP or knowledge of the
waste, which could include EP test results) whether
the wastes being managed are hazardous by toxicity
characteristic and determine which, if any, RCRA
Subtitle C requirements may be ARARs for each
of the alternatives being considered.
Post.ROD
For RODs signed before March 29, 1990 that
involve on-site disposal of waste, site managers do
not have to run the TCLP to determine
applicability of Subtitle C hazardous waste
requirements because ARARs... generally are
considered to be "frozen" when a ROD is signed
(although an assessment of the protectiveness of
the remedy, in light of a new requirement, should
be made). Because the TC rule simply addresses
whether a waste is a characteristic RCRA
hazardous waste, its consideration generally should
not affect determinations made during the RI/FS
and remedy selection process of the protectiveness
of a remedy.
If an ongoing or planned response action
(regardless of when the ROD was signed) involves
or will involve off-site disposal of wastes after
September 25, 1990, the wastes must be evaluated
for the toxicity characteristic to ensure that
applicable RCRA Subtitle C requirements are met
at the time of disposal. For example, if wastes that
exhibit the TC (but were not considered hazardous
under the EP when tested earlier) are being
disposed of in an off-site municipal Subtitle D
landfill, these wastes can no longer be disposed of
in this manner after September 25, 1990. These
wastes will need to be disposed of in a RCRA
Subtitle C facility or treated such that they are no
longer characteristic prior to disposal in a Subtitle
D facility. Depending on which of these options is
chosen, a ROD amendment or explanation of
significant differences (ESD) would need to be
issued.
NOTICE: The policies set out in this memorandum are intended solely as guidance. They are not intended, nor can they be
relied upon, to create any rights enforceable by any party in litigation with the United States. EPA officials may decide to follow
the guidance provided in this memorandum, or to act at variance with the guidance, based on an analysis of specific site
circumstances. The Agency also reserves the right to change this guidance at any time without public notice.
-------
Constituents Regulated - The TC rule establishes
regulatory levels for an additional 25 organic
chemicals that were not previously regulated
(D018-D043) and retains the regulatory levels for
the 14 chemicals originally regulated under the old
EP (i.e., D004-D017). Each of the constituents
regulated and their regulatory levels (based on the
TCLP) are shown in Highlight 2. Because the new
chemicals regulated are organic constituents
commonly found at Superfund sites, it is likely that
more wastes at Superfund sites will exhibit the
RCRA toxicity characteristic and will require
management in accordance with RCRA Subtitle C
hazardous waste requirements.
The results of the TCLP and EP tests generally
are expected to be the same for the original 14
constituents (i.e., if a waste tested as non-
characteristic under the EP test, it would not be
expected to exhibit the characteristic under the
TCLP test as well). However, in some cases,
wastes that were not hazardous under the EP may
be hazardous under the TCLP. Appropriate
management and compliance options in such
situations are discussed in the following section.
RELATIONSHIP OF TC TO OTHER RCRA
REQUIREMENTS
LDRs. As described in Superfund LDR Guide
#8, Compliance with Third Third Requirements
under the LDRs, the Third Third LDR rule
promulgated on May 8, 1990, set LDR
treatment standards for the 14 RCRA wastes
that are identified as hazardous by characteristic
using the EP toxicity test. (Note: compliance
with the LDR standards for most characteristic
wastes is based on the TCLP.) For the eight
EP toxic metals (D004-D011), EPA generally
set the LDR treatment standards as
concentrations at the characteristic level, with
the exception of selenium nonwastewaters, for
which the treatment standard was set above the
characteristic level, and certain high mercury
nonwastewaters, for which a treatment
technology of mercury retorting was set. For
the pesticide wastewaters, a technology (e.g.,
incineration, biodegradation) was specified as
the treatment standard. For pesticide
nonwastewaters, the treatment standards were
set as total waste concentrations (not extract
Highlight 2
CONSTITUENTS AND REGULATORY LEVELS ESTABLISHED UNDER THE TOXICITY CHARACTERISTIC RULE
Old EP Toxicity Constituents New TC Constituents (cent.)
Waste
Code
D004
D005
D006
D007
D008
D009
D010
D011
D012
D013
D014
D015
D016
D017
(now regulated under
Regulated
Constituent
Arsenic
Barium
Cadmium
Chromium
Lead
Mercury
Selenium
Silver
Endrin
Lindane
Methoxychlor
Toxaphene
2,4-D
2,4,5-TP (silvex)
TC)
Reg. Level
(mg/11
5.0
100.0
1.0
5.0
5.0
0.2
1.0
5.0
0.02
0.4
10.0
0.5
10.0
1.0
New TC Constituents
Waste
Code
D018
D019
D020
D021
Regulated
Constituent
Benzene
Carbon tetrachloride
Chlordane
Chlorobenzene
Reg. Level
fmg/T)
0.5
0.5
0.03
100.0
Waste
Code
D022
D023
D024
D025
D026
D027
D028
D029
D030
D031
D032
D033
D034
D035
D036
D037
D038
D039
D040
D041
D042
D043
Ifo-,
creso
Regulated
Constituent
Chloroform
o-Cresol
m-Cresol
p-Cresol
Total cresols
1,4-Dichlorobenzene
1 ,2-Dichloroethane
1,1-DichIoroethylene
2,4-Dinitrotoluene
Heptachlor (and its epoxide)
Hexachloro benzene
Hexachloro-l,3-butadiene
Hexachloroet ha ne
Methyl ethyl ketone
Nitrobenzene
Pentachlorophenol
Pyridine
Tetrachloroethylenc
Trichloroethylcne
2,4,5-Trichlorophenol
2,4,6-Trichlorophenol
Vinyl chloride
Reg. Level
fmg/11
6.0
200.0'
200.0'
200.0'
200.0'
7.5
0.5
0.7
0.13
0.008
0.13
0.5
3.0
200.0
2.0
100.0
5.0
0.7
0-5
400.0
2.0
0.2
m-, and p-Cresol cannot be differentiated, total
concentration of 200.0 mg/1 is
used as the
regulatory level.
-------
concentrations). Although some of the total
waste concentrations for these pesticide
nonwastewaters appear to be higher than the
levels that define the wastes as hazardous, when
the 20 to 1 dilution factor inherent in the TCLP
and EP protocols is considered, no certain
relationship between tfie two standards can be
stated, and, therefore, testing likely will be
necessary to determine whether wastes treated
to the LDR treatment standards remain
hazardous.
The 25 new organic constituents are considered
"newly identified" wastes, and will not be subject
to the LDRs until the Agency promulgates
treatment standards for those wastes.
Furthermore, no other LDR restrictions (e.g.,
soft hammer requirements, California list
restrictions) apply to these newly identified
wastes; however, they must be disposed of in
accordance with other RCRA Subtitle C
requirements (i.e., in a regulated Subtitle C
disposal unit).
Where wastes not hazardous under the EP test
fail the TCLP test, these wastes also are
considered RCRA "newly identified" wastes, and
are not subject to LDR treatment standards.
Highlight 3 provides examples of how LDR
requirements may apply to TC wastes.
Delisting. Wastes that have been delis ted may
still be considered hazardous under RCRA if
they exhibit the TC (or other) characteristic.
Although this is not expected to occur, site
managers who will be disposing of wastes or
treatment residuals that have been delisted, or
are in the process of being delisted, must
nevertheless determine (either through testing
or knowledge of the wastes) if their wastes
exhibit the toxicity characteristic.
COMPLIANCE EVALUATIONS
As a result of the TC rule, site managers may
need to evaluate whether wastes at a site exhibit
the toxicity characteristic during the site
investigation and implementation phases of a
CERCLA response. Highlight 4 contains a
timeline outlining the legally acceptable options
(established in the TC and Third Third rules) for
using the EP and the TCLP to test for the
characteristic of toxicity and compliance with LDR
treatment standards.
Highlight 3
EXAMPLES OF LDR REQUIREMENTS
FOR TC WASTES*
A TC waste containing lead (D008) at
8.0 mg/1 (based on leachate analysis)
must be treated (e.g., by using
immobilization) to comply with the
LDR treatment standard of 5.0 mg/I
before land disposal. Because the LDR
treatment standard is also the
characteristic level, the treated wastes
would no longer be considered a
RCRA hazardous waste and, therefore,
disposal in a Subtitle D facility would
be permissible.
The LDRs are not in effect for a waste
containing benzene (D018) at 6.0 mg/1
(using a TCLP analysis) that will be
land disposed because D018 is a newly
identified waste for which no LDR
standards exist. The waste must be
disposed of as a Subtitle C RCRA
hazardous waste (unless the waste is
treated to below the TC level for
benzene of 0.5 mg/1).
Wastes containing a mixture of lead
and benzene at concentrations above
the TC levels must be treated to meet
the LDR treatment standard for lead
before disposal. If, after treatment, the
waste still exhibits the characteristic for
benzene, it must be managed as a
RCRA hazardous waste. If treatment
removes the characteristic for benzene,
through immobilization or other
treatment methods, the treated waste
may be disposed of in a Subtitle D
landfill.
NOTE: If any of the 14 original EP constituents
for which standards are in effect are
contained in soil and debris, site
managers may want to obtain a
Treatability Variance to comply with
the LDRs. However, depending on the
waste's original (or threshold)
concentration, attaining the
characteristic level may be a less
stringent requirement than obtaining
the alternate treatability variance level
established in Superfund LDR Guides
#6A and #6B.
* TC effective date is September 25, 1990.
-------
CERCLA Compliance with Other Laws Manual,
CERCLA Compliance with CWA and SDWA
-------
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9234.2-06/FS
February 1990
CERCLA Compliance With Other Laws Manual
CERCLA Compliance
with the CWA and SDWA
Office of Emergency and Remedial Response
Office of Program Management OS-240
Quick Reference Fact Sheet
The 1986 Superfund Amendments and Reauthorization Act (SARA) adopts and expands a provision in the 1985
National Contingency Plan (NCP) that remedial actions must at least attain applicable or relevant and appropriate
requirements (ARARs). Section 121(d) of CERCLA, as amended by SARA, requires attainment of Federal ARARs and
of State ARARs in State environmental or facility siting laws when the State requirements are promulgated, more
stringent than Federal laws, and identified by the State in a timely manner.
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 Water Act and the Safe Drinking
Water Act (Chapters 3 and 4, respectively, in Part I). In addition, it discusses other statutes with provisions relevant to
surface water or drinking water, such as dredge-and-fill requirements. The material covered here is based on SARA and
on policies in the final revised NCP.
I. Compliance With The Clean Water Act
A primary purpose of the Clean Water Act (CWA),
also known as the Federal Water Pollution Control Act,
is to restore and maintain the quality of surface waters.
The CWA regulations that are most likely to be ARARs
for Superfund actions are the requirements for: (1)
surface-water quality; (2) direct discharges to surface
waters; (3) indirect discharges to publicly-owned treatment
works (POTWs); or (4) discharges of dredge-and-fill
materials into surface waters (including wetlands).
Pollutants are regulated under the CWA according to
their category (see Highlight 1).
A. CWA DIRECT DISCHARGE REQUIREMENTS
(NPDES)
The CWA controls the direct discharge of pollutants
to surface waters through the National Pollutant
Discharge Elimination System (NPDES) program.
NPDES requires permits for direct discharges to surface
waters. The permits contain limits based upon either
effluent (discharge) standards, or, if they are more
stringent, ambient (overall water quality) standards.
NPDES permits are issued, monitored, and enforced by
EPA, or by a State agency authorized by EPA to
administer an equivalent State program.
Highlight 1: CATEGORIES OF POLLUTANTS
Toxic pollutants - the 126 individual priority
toxic pollutants contained in 65 toxic
compounds or classes of compounds (including
organic pollutants and metals) adopted by EPA
pursuant to the CWA section 307(a)(l);
Conventional pollutants - the pollutants
classified as biochemical oxygen demand (BOD),
total suspended solids (TSS), fecal coliform, oil
and grease, and pH pursuant to the CWA
section 304(a)(4); and
Nonconventional pollutants any pollutant not
identified as either conventional or toxic in
accordance with 40 CFR section 122.21(i)(2).
An on-site discharge from a CERCLA site to
surface waters must meet the substantive NPDES
requirements, but need not obtain an NPDES permit nor
comply with the administrative requirements of the
permitting process, consistent with CERCLA section
Printed on Recycled Paper
-------
121(e)(l). On the other hand, an off-site discharge from
a CERCLA site to surface waters is required to obtain an
NPDES permit and to meet both the substantive and the
administrative NPDES requirements. (See Highlight 2 for
CERCLA activities considered to be direct discharges.)
Occasionally, more than one CWA direct discharge
requirement may potentially apply to a surface-water
cleanup (see Section III for resolution of this issue).
Highlight 2: CERCIA ACTIVITIES
CONSIDERED TO BE DIRECT DISCHARGES
From a Point Source;
On-site Waste Treatment: wastewater is
discharged from a treatment plant directly into,
or in very close proximity to, a surface-water
body through a discernible conveyance such as a
pipe, ditch, channel, tunnel, or well.
Off-site Treatment: wastewater front the site is
piped or otherwise discharged through a
discernible conveyance to an off-site surface-
water body.
Any Remedial Action: site runoff is channeled
directly to a surface-water body through a ditch,
culvert, storm sewer, or other means.
From a Nonpoint Source:
Unchanneled runoff from a site into surface
water.
1. Substantive Requirements
a. Ambient Water Quality Standards
Federal Water Quality Criteria (WQC) - Federal
WQC are non-enforceable guidelines that set con-
centrations of pollutants which, when published, were
considered adequate to protect surface waters. The WQC
may be relevant and appropriate "to CERCLA cleanups
based upon an evaluation of four criteria set forth in
CERCLA section 121 (d): (1) uses of the receiving water
body; (2) media affected; (3) purposes of the criteria; and
(4) current information. Under CWA section 304, EPA
has developed WQC for: (1) protection of human health;
and (2) protection of aquatic life.
State Antidegradation Requirements/Use Classi-
fications - Under the CWA, every State is required to
classify all of the waters within its boundaries according
to its intended use. EPA regulation requires States to
establish antidegradation requirements. As a result,
discharges that result from CERCLA response actions to
high-quality receiving waters could be prohibited or
limited, unless an ARAR waiver (such as inconsistent
application by the State) is available. State anti-
degradation requirements may be applicable to both point
and nonpoint source discharges. (A point source is a
discernible conveyance such as a pipe, ditch, channel,
tunnel or well from which pollutants may be discharged.)
b. Effluent Standards
Technology-Based Limitations - CWA section 301 (b)
requires that, at a minimum, all direct discharges meet
technology-based limits. Technology-based requirements
for conventional pollutant discharges include application
of the best conventional pollutant control technology
(BCT). For toxic and nonconventional pollutants,
technology-based requirements include the best available
technology economically achievable (BAT). Because
there are no national effluent limitations regulations for
releases from CERCLA sites, technology-based treatment
requirements are determined on a case-by-case basis using
best professional judgment (BPJ) to determine BCT/BAT
equivalent discharge requirements. Technology-based
limits for water discharges are often expressed as con-
centration levels. Technology-based limits are applicable
to direct discharges from a point source.
State Water Quality Standards (WQS) - Under
CWA section 303, States must develop water quality
standards. State WQS may be numeric or narrative.
Where State WQS are narrative, either the whole-effluent
or the chemical-specific approach is generally used as the
standard of control. State WQS may be applicable to
both point and nonpoint source discharges.
2. Administrative Requirements
An off-site direct discharge from a CERCLA
response action to surface waters requires an NPDES
permit. The requirements for obtaining a permit include:
Certification Requirements: the applicant for an
NPDES permit must receive certification from the
State that the discharge will be in compliance with
CWA sections 301, 302, 303, 306, and 307;
Permit Application Requirements: an application
for an NPDES permit for a new discharge must be
made 180 days prior to the actual discharge;
pollution control equipment must be installed
before the new discharge begins; and compliance
must be achieved within the shortest feasible time,
not to exceed 90 days;
-------
B.
Reporting Requirements: the NPDES permit requires
a discharger to maintain records and to report
periodically on the amount and nature of pollutants
in the discharged wastewaters; and
Public Participation Requirements: the NPDES dis-
charge limitations and requirements developed for a
CERCLA site are subject to public participation re-
quirements, including public notice and public
comment.
CWA INDIRECT DISCHARGE REQUIREMENTS
(Pretreatment Program for Nondomestic Users of
POTWs)
Under CWA, all discharges by nondomestic users into
POTWs must meet pretreatment standards. The purpose
of pretreatment standards is to avoid the introduction of
pollutants into municipal wastewater treatment plants that
pass through, interfere with, or are otherwise incompatible
with, such treatment works. The pretreatment standards
are found in the national pretreatment program and in
all State and local pretreatment regulations. There are
three types of pretreatment standards (see Highlight 3).
Any discharge from a CERCLA site to a POTW is
considered an off-site activity. It is, therefore, subject to
both the substantive and administrative requirements of
the national pretreatment program, and to all applicable
State and local pretreatment regulations.
Highlight 3: TYPES OF FRETREATMENT
Prohibited discharge standards apply to all
nondomestic discharges and prohibit pollutants
that cause fire or explosions, corrosion*
obstructions, high temperatures at POTWs,
problems with worker health and safety, or
interference,
Categorical pretreatment standards are national,
technology-based effluent limitations developed
by EPA for certain industrial categories,
Currently KO national standards exist for
CERCLA discharges.
Local limits are developed by qualifying POTWs,
and are designed to ensure compliance with
specific environmental standards and criteria at
the local level.
1. Discharge of CERCLA Wastewater to a POTW
Wastewater from a CERCLA site may be sent to a
POTW that either has or does not have an EPA-
approved pretreatment program. A POTW with an
approved pretreatment program already has the
mechanisms necessary to ensure that discharges, including
those from a CERCLA site, comply with applicable
pretreatment standards and requirements. Remedial
Project Managers (RPMs) must evaluate a POTW
without an approved pretreatment program to determine
whether it has sufficient mechanisms for meeting the
requirements of the national pretreatment program when
accepting CERCLA wastewater.
The determination of whether the POTW can accept
CERCLA wastewater should be made during the RI/FS
stage of the remedial action. Factors for determining a
POTW's ability to accept CERCLA wastewater include:
The quantity and quality of the CERCLA
wastewater and its compatibility with the POTW;
The impacts of a CERCLA discharge on the
POTW's treatment system and on its continued
compliance with its NPDES permit;
The POTW's record of compliance with its NPDES
permit and pretreatment program requirements to
determine if the POTW is a suitable disposal site
for the CERCLA wastewater;
The potential for volatilization of the wastewater
constituents at the CERCLA site, while moving
through the sewer system, or at the POTW, and its
potential impact on air quality;
The potential for ground-water contamination from
the transport of the CERCLA wastewater or
impoundment at the POTW, and the need for
ground-water monitoring;
The potential effect of the CERCLA wastewater
upon the POTW's discharge as evaluated by
maintenance of water quality standards in the
POTW's receiving waters;
The POTW's knowledge of and compliance with
any RCRA requirements or requirements of other
environmental statutes; and
The various costs of managing the CERCLA
wastewater, including all risks, liabilities, permit
fees, etc.
In addition to these factors, off-site discharges of
CERCLA wastewaters may only be made to facilities
(generally POTWs) in compliance with the CERCLA off-
site policy (OSWER Directive 9834.11, November 1987,
-------
at p. 11; see also 40 CFR 300.440 (proposed), 53 FR
48218, November 29, 1988).
2. Applicable POTW Control Mechanisms (Permits or
Orders)
It is likely that RPMs will have to obtain from
POTWs permits or orders for CERCLA remedies
involving indirect discharges to such POTWs. POTWs
have the authority to limit or reject wastewater discharges
and to require dischargers to comply with control
mechanisms such as permits or orders. These permits or
orders contain applicable pretreatment standards including
local discharge prohibitions and numerical discharge limits.
In addition to incorporating pretreatment limitations and
requirements, the control mechanisms may also include:
(1) monitoring and reporting requirements to ensure
continued compliance with applicable pretreatment
standards; (2) spill prevention programs to prevent the
accidental discharge of pollutants to POTWs (e.g., spill
notification requirements); and (3) other requirements.
C. DREDGE-AND-FILL REQUIREMENTS
Any discharge of dredge-and-fill material into the
navigable waters of the United States, including wetlands,
is subject to the requirements of certain regulatory
authorities (see Highlight 4). These requirements ensure
that impacts on aquatic ecosystems are evaluated.
CERCLA activities that may be considered dredge-and-
fill activities include, but are not limited to, the following:
Dredging of contaminated lake, river, or marine
sediments;
Disposal of contaminated soil, waste material, well-
drilling materials, or dredged material in surface
water, including most wetlands;
Capping of a site containing wetlands;
Construction of berms and levees to contain wastes;
Stream channelization; and
Excavation to contain effluent.
D. COORDINATION BETWEEN SUPERFUND AND
WATER OFFICES
RPMs are required to identify potential CWA
ARARs when considering a discharge to surface waters,
a discharge to a POTW, or dredging of surface-water
sediments. In order to identify and communicate ARARs
in a timely manner, each EPA Region should establish
procedures between the Regional Superfund and Water
offices. The Superfund and the Water offices should
coordinate their activities at the following stages of the
remedy selection process:
Highlight 4: DREDGE-AND-FILL AUTHORITIES
Dredge-and-fill activities are regulated under the
following authorities:
Section 10 of the Rivers and Harbors Act
prohibits the unauthorized obstruction or
alteration of any navigable water of the United
States.
Section 404 of the Clean Water Act regulates
the discharge of dredged or fill material to
waters of the United States. It applies to all
discharges of dredged or fill material to U.S.
waters, regardless of the condition of the
wetland. While section 404, when applicable,
requires consideration of any practicable
alternatives, there is no duty to mitigate
adverse effects from previous dischargers.
However, it may be appropriate in some
circumstances to protect the environmental
values of the site.
f
Section 103 of the Marine Protection Research
and Sanctuaries Act regulates ocean discharges
of materials dredged from waters of the United
States.
40 CFR Part 6, Appendix A contains EPA's
regulations for implementing Executive Order
11990, Protection of Wetlands, and Executive
Order 11988, Floodplain Management, which
require Federal agencies, wherever possible, to
avoid or minimize adverse impacts of Federal
actions upon wetlands and floodplains
(including dredge-and-fill activities). The
proposed plan and selected remedial action
should be evaluated in light of these
requirements and the alternative modified, if
necessary, to avoid or minimize adverse
impacts.
Preliminary Assessment/Site Investigation. For
planning purposes, copies of pertinent documents
may be sent to the Water offices (Regional and
State, if appropriate) to promptly notify them of
possible remedial actions involving discharges to
surface waters.
Remedial Investigation/ Feasibility Study. To
provide and obtain additional information regarding
the site and the potential contamination of the
surface water, copies of the RI/FS Workplan (draft
and final), the RI/FS Report, and the Proposed Plan
may be sent to the Water offices. In addition, close
coordination should occur during the initial and
detailed screening of alternatives.
-------
Selection of Remedy/Record of Decision. To ensure
that the selected remedy attains all CWA ARARs
(or other health- or risk-based levels when ARARs
are waived or do not exist) and is adequately
documented, the Water offices should be contacted
for additional information.
Remedial Design/Remedial Action. To help ensure
that the selected remedy will attain all ARARs, the
Water offices should be consulted during the
RD/RA.
II. Compliance With The Safe Drinking Water Act
The Safe Drinking Water Act of 1974 (SDWA), as
most recently amended in 1986, requires EPA to establish
regulations to protect human health from contaminants
in drinking water. To achieve this, EPA has developed:
(1) drinking water standards; (2) a permit program for the
underground injection of wastes (the Underground
Injection Control (UIC) Permit Program); and (3) ground-
water protection programs (the Sole Source Aquifer
Program and the Wellhead Protection Program).
A. DRINKING WATER STANDARDS
1. National Primary Drinking Water Regulations
The drinking water regulations are applicable to
public water systems (defined as systems) having at least
15 service connections or serving at least 25 year-round
residents. National primary drinking water regulations
consist of contaminant-specific standards known as
Maximum Contaminant Levels (MCLs), which are set as
close as feasible to Maximum Contaminant Level Goals
(MCLGs) (see Highlight 5). "Feasibility" is based upon
best technology and it takes cost into consideration.
Highlight 5: DEFINITIONS OF MCLs AND MCLGs
Maximum Contaminant Levels are enforceable
standards that apply to specified contaminants which
EPA has determined have an adverse effect on
human health above certain levels.
Maximum Contaminant Level Goals are non-
enforceable health-based goals that are established at
levels at which no known or anticipated adverse
effects on the health of persons occur and which will
allow an adequate margin of safety.
CERCLA section 121(d)(2)(A)(i) requires on-site
CERCLA remedies to attain standards or levels of control
established under the SDWA (i.e., MCLs, where they are
applicable or relevant and appropriate). CERCLA section
121(d)(2)(A) also requires on-site remedies to attain
MCLGs where relevant and appropriate under the
circumstances of the release. EPA believes that MCLGs
set at levels above zero should be attained where relevant
and appropriate as cleanup levels for ground or surface
waters that are current or potential .sources of drinking
water. If the MCLG is equal to zero, the Agency
believes it is not appropriate for setting cleanup levels,
and the corresponding MCL will be the potentially
relevant and appropriate requirement. (In some
instances, MCLs will also be applicable if the water is
delivered through a public water supply system having the
requisite number of service connections and year-round
customers mentioned above.)
2. Secondary Drinking Water Regulations
Secondary drinking water regulations consist
primarily of Secondary Maximum Contaminant Levels
(SMCLs) for specific contaminants or water
characteristics that may affect the aesthetic qualities of
drinking water (i.e., color, odor, and taste). SMCLs are
nonenforceable limits intended as guidelines for use by
States in regulating water supplies. SMCLs are guides
for public water systems and are typically measured at the
tap of the user of the system. However, SMCLs are
potential relevant and appropriate requirements in States
that have adopted SMCLs as additional drinking-water
standards.
B. UNDERGROUND INJECTION CONTROL
PROGRAM (UIC)
Under the UIC program, owners and operators of
certain classes of underground injection wells are required
to obtain and adhere to the requirements of operating
permits. The permit applicant must prove to the State
or Federal permitting authority that operation of the
underground injection will not endanger drinking-water
sources. For regulatory and reporting purposes, under-
ground injection wells are divided into five categories.
Class I, Class IV, and Class V wells are most likely to be
associated with CERCLA response actions (see Highlight
6).
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Highlight 6: DESCRIPTION OF CLASS
I, IV, AND V WELLS
Class 1 wells are used to inject industrial,
hazardous, and municipal wastes beneath the
lower most formation containing, within one-
quarter mile (1/4) of the well bore, an
underground drinking-water source.
Class IV wells are used to inject hazardous or
radioactive waste into or above a formation
containing, within one-quarter mile (1/4) of the
well bqse, an underground drinking-water source.
Class V wells include all wells not incorporated
in Classes I through IV, and are typically
recharge wells, septic system wells, and shallow
industrial (non-hazardous) disposal wells.
An abandoned or failed Class I and Class IV
injection well facility could be a site of a CERCLA action,
or the CERCLA response action may include the
reinjection of treated ground water. In addition, a
CERCLA cleanup could involve the reinjection of
nonhazardous waste water to a Class V well. In each
case, requirements under the UIC program may be
potential ARARs.
1. Substantive Requirements
a. The SDWA UIC Provisions
The injection of hazardous wastes from CERCLA
sites into wells constructed both on-site or off-site must
meet the substantive requirements of the UIC program.
In general, no owner or operator may construct, operate,
or maintain an injection well in a manner that results in
the contamination of an underground source of drinking
water at levels that violate MCLs or otherwise affect the
health of persons. While the UIC regulations expressly
refer to MCLs (40 CFR Parts 142, 144), non-zero MCLGs
will generally be potential relevant and appropriate
requirements for CERCLA cleanups involving an on-site
injection well containing ground water potentially used for
drinking water. In addition, all owners and operators of
underground injection wells are subject to UIC closure
requirements Finally, injection of hazardous wastes into
a Class 1 well requires compliance with additional UIC
construction, operating, and monitoring requirements.
I). The Resource and Conservation and Recovery
\ci (RCRA)
3020 of RCRA, the injection of
iio Class IV injection wells is banned
section
- ->,;Mes into Class IV injection wells is banned
i) ilic injection is a CERCLA response action
or a RCRA corrective action; (2) the contaminated
ground water is treated to substantially reduce hazardous
constituents prior to each injection; and (3) the response
action or corrective action is sufficient to protect human
health and the environment upon completion. These
requirements are potential ARARs for the reinjection of
hazardous waste into Class IV wells in a pump-and-treat
remediation system.
Because reinjection of treated contaminated ground
water at CERCLA sites is specifically addressed in RCRA
section 3020, RCRA land disposal restrictions (sections
3004(f), (g) and (m)) are not applicable to each
reinjection or to the conclusion of a pump-and-treat
remediation. EPA also expects that generally they will
not be found to be relevant or appropriate requirements.
Therefore, the best demonstrated available technology
(BDAT) generally will not have to be met for each
reinjection or at the conclusion of a pump-and-treat
remediation involving a Class IV well. (See the Don
Clay, AA (OSWER), Memorandum on the "Applicability
of Land Disposal Restrictions to RCRA and CERCLA
Groundwater Treatment Reinjection," December 27,1989,
OSWER Directive 9234.1-06).
RCRA also requires the owner or operator of a
Class I UIC well to comply with RCRA corrective action,
for releases from solid waste management units, if the
permit was issued after November 8, 1984 (see 40 CFR
270.60).
2. Administrative Requirements
Off-site CERCLA actions must comply with the
following administrative requirements of the UIC
Program:
Application requirements. All existing and new
underground injection wells must apply for a permit
unless an existing well is authorized by rule for the
life of the well;
Inventory and Other Information Requirements.
Existing underground injection wells that are
authorized by rule are required to submit inventory
information to EPA or an approved State. Other
information may be required to determine whether
injection will endanger an underground source of
drinking water; and
Reporting Requirements. Owners and operators of
Class I wells are required to maintain records and
report quarterly on the characteristics of injection
fluids and ground-water monitoring wells and
various operating parameters (e.g., pressure, flow
rate, etc.).
-------
NOTE: Off-site CERCLA actions must also comply with
CERCLA requirements for off-site transfers of waste.
(OSWER Directive 9834.11, November 1987; 53 FR
48218, November 29, 1988).
C. SOLE SOURCE AQUIFER (SSA) PROGRAM
The SDWA permits EPA to designate as "sole source
aquifers" any aquifer that is the sole source or principal
drinking-water source for an area and which, if
contaminated, would present a significant hazard to
human health. Under the SSA program, Federal financial
assistance (from any Federal Agency) may not be
committed for any project that may contaminate a sole
source aquifer so as to create a significant public health
hazard. Generally, CERCLA activities would not in and
of themselves increase pre-existing contamination of sole
source aquifers. Therefore, it is unlikely that CERCLA
activities would be subject to restrictions on Federal fin-
ancial assistance. Nonetheless, a review of any potential
problems associated with sole source aquifers should be
part of the RI/FS process.
D. WELLHEAD PROTECTION PROGRAM
The 1986 amendments to the SDWA direct States
to develop and implement programs to protect wells and
recharge areas that supply public drinking-water systems
from contaminants that flow into the well from the
surface and subsurface. Because the Wellhead Protection
program is designed to be run by the States, the program
will not involve Federal ARAR provisions. Nonetheless,
State Wellhead Protection programs may impose
requirements that may be ARARs for CERCLA response
actions. RPMs should be aware of State Wellhead
Protection program requirements and should coordinate
with the appropriate Regional drinking-water program
personnel assigned to the Wellhead Protection program.
III. RESOLUTION OF POTENTIALLY CONFLICTING ARARS
For relevant and appropriate requirements, the very
availability of a certain requirement often suggests that
other requirements, which are less well suited to the
circumstances, are not relevant and appropriate. Several
conceivable conflicts among potential relevant and
appropriate requirements concerning surface water may be
resolved as follows:
Where surface water serves as actual or potential
drinking-water source and there are no impacts to
aquatic organisms, the following requirements should
be attained where relevant and appropriate:
(1) State WQS that are designated for drinking-
water use, and are more stringent than Federal
standards, or specific to the uses of that water
body; or, if none
(2) Non-zero MCLGs; or, if none
(3) MCLs; or, if none
(4) Federal WQC adjusted for drinking-water use.
For non-drinking surface water and there are no
impacts to aquatic organisms, attain where relevant
and appropriate, the stricter of:
(1) State WQS; or
(2) Technology Based Limitations.
For non-drinking surface water and there are
impacts to aquatic organisms, attain, where relevant
and appropriate:
(1) State WQS; or, if none
(2) Federal WQC.
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Discharge of Wastewater from
CERCLA Sites into POTWs
-------
9330.2-4
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
APR I5B86
MEMORANDUM
SUBJECT: Discharge of Wastewater from CERC
FROM: Henry L. Longest II, Director
Office of Emergency and Remedi
TO;
es into POTWS
nse
Rebecca Hanmer, Director
Office of Water Enforcement and Permits
Gene A. Lucero, Director *\
Office of Waste Programs Enforcement
Waste Management Division Directors
Regions I - X
Water Management Division Directors
Regions I - X
A number of emergency removals and remedial cleanup actions
under CERCLA will involve consideration of publicly owned treat-
ment works (POTWs) for discharge of wastewater. The current
off-site policy (issued on May 6, 1985) does not address the set
of concerns and issues unique to POTWs that must be evaluated
during the Remedial Investigation and Feasibility Study (RI/FS)
for discharge of CERCLA wastewater to POTWs.
Recently, we have had meetings with representatives of the
Association of Metropolitan Sewerage Authorities (AMSA) to discuss
technical and policy concerns related to the POTW/CERCLA issue.
This memorandum is to highlight some of the major points under
consideration which were shared with AMSA at their recent Winter
Technical Conference. The Agency intends to develop policy on
the use and selection of POTWs for CERCLA wastewater. Your
comments are sought on the proposed criteria set forth herein.
These criteria may be useful in evaluation of POTWs for response
actions (fund financed or responsible party financed) to be taken
in the interim.
Our position is that no CERCLA discharges to a POTW should
occur unless handled in a manner demonstrated to be protective
of human health and the environment. Full compliance with all
applicable requirements of the Clean Water Act (CWA), the
Resource Conservation and Recovery Act (RCRA), and any other
relevant or appropriate environmental statutes will be necessary .
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9330.2-4
- 2 -
The national pretreatment program, under the Clean Water Act,
requires an analysis to determine whether the discharge of an
industrial user of a POTW may pass through the POTW to cause
receiving water quality problems or may interfere with POTW
operations (including sludge disposal). If the analysis suggests
that limits on the industrial user's discharge are needed to pre-
vent pass through or interference, local limits or other safe-
guards, as necessary, must be established by the POTW and/or the
NPDES permitting authority. The national pretreatment program
requirements apply to the introduction of all non-domestic
wastewater into any POTW, and include, among other things, the
following elements:
o Prohibited discharge standards - prohibit the intro-
duction of pollutants to the POTW which are ignitable,
corrosive, excessively high in temperature, or which
may cause interference or pass through at the POTW.
o Categorical discharge standards - include specific pre-
treatment standards which are established by EPA for the
purpose of regulating industrial discharges in specific
industrial categories.
o Local limits - where no categorical standards have been
promulgated or where more stringent controls are necessary.
POTWs under consideration as potential receptors of CERCLA
wastewaters may include those POTWs either with or without an
approved pretreatment program. POTWs with an approved pretreat-
ment program are required to have the mechanisms necessary to
ensure compliance by industrial users with applicable pretreatment
standards and requirements.* POTWs without an approved pretreat-.
ment program must be evaluated to determine whether sufficient
mechanisms exist to allow the POTW to meet the requirements of
the national pretreatment program in accepting CERCLA wastewaters.
As noted above, pass through and interference are always prohibited,
regardless of whether a POTW has an approved pretreatment program.
POTWs without an approved pretreatment program must therefore
have mechanisms which are adequate to apply the requirements of
the national pretreatment program to specific situations.
*POTWs with approved pretreatment programs must, among other
things, establish procedures to notify industrial users (lUs) of
applicable pretreatment standards and requirements, receive and
analyze self-monitoring reports from lUs, sample and analyze
industrial effluents, investigate noncorapliance, and comply with
public participation requirements.
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9330.2-^
-3-
Determination of a POTWs ability to accept CERCLA wastewater
as an alternative to on-site treatment and direct discharge to
receiving waters must be made during the Remedial Investigation/
Feasibility Study (RI/FS) process. During the remedial alternatives
analysis, the appropriateness of using a POTW must be carefully
evaluated. Water Division officials and their state counterparts
should participate in the evaluation of any remedial alternatives
recommending the use of a POTW, and should concur on the selection
of the POTW.
If an alternative considers the discharge of wastewater from
a CERCLA site into a POTW, the following points should be evaluated
in the RI/FS prior to the selection of the remedy for the site:
o The quantity and quality of the CERCLA wastewater and its
compatibility with the POTW (The constituents in the
CERCLA wastewater must not cause pass through or inter-
ference, including unacceptable sludge contamination or
a hazard to employees at the POTW; in some cases, control
equipment at the CERCLA site may be appropriate in order
to pretreat the CERCLA discharge prior to introduction to
the POTW).
o The ability (i.e., legal authority, enforceable mechanisms,
etc.) of the POTW to ensure compliance with applicable
pretreatment standards and requirements, including monitor-
ing and reporting requirements.
o The POTW's record of compliance with its NPDES permit
and pretreatment program requirements to determine if
the POTW is a suitable disposal site for the CERCLA waste-
water.
o The potential for volatilization of the wastewater at the
CERCLA site and POTW and its impact upon air quality.
o The potential for groundwater contamination from trans-
port of CERCLA wastewater or impoundment at the POTW, and
the need for groundwater monitoring.
o The potential effect of the CERCLA wastewaters upon the
POTW's discharge as evaluated by maintenance of water
quality standards in the POTW's receiving waters,
including the narrative standard of "no toxics in toxic
amounts".
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9330.2-
- 4 -
o The POTW1s knowledge of and compliance with any applicable
RCRA requirements or requirements of other environmental
statutes (RCRA perrait-by-rule requirements may be trig-
gered if the POTW receives CERCLA wastewaters that are
classified as "hazardous wastes" without prior mixing
with domestic sewage, i.e., direct delivery to the POTW
by truck, rail, or dedicated pipe; CERCLA wastewaters are
not all necessarily considered hazardous wastes; case by
case determinations have to be made).
o The various costs of managing CERCLA wastewater, including
all risks, liabilities, permit fees, etc. (It may be
appropriate to reflect these costs in the POTW's connection
fees and user charge system).
Based upon consideration of the above elements, the discharge
of CERCLA wastewater to a POTW should be deemed inappropriate if
the evaluation indicates that:
o The constituents in the CERCLA discharge are not com-
patible with the POTW and will cause pass through, inter-
ference, toxic pollutants in toxic amounts in the POTW's
receiving waters, unacceptable sludge contamination, or a
hazard to employees of the POTW.
o The impact of the transport mechanism and/or discharging of
CERCLA wastewater into a POTW would result in unacceptable
impacts upon any environmental media.
o The POTW is determined to be an unacceptable receptor
of CERCLA wastewaters based upon a review of the POTW's
compliance history.
o The use of the POTW is not cost-effective.
If consideration of the various elements indicates that the
discharge of CERCLA wastewater to a POTW is deemed appropriate:
o There should be early public involvement, including
contact with POTW officials and users, in accordance
with the CERCLA community relations plan and public
participation requirements.
o The NPDES permit and fact sheet may need to be modified
to reflect the conditions of acceptance of CERCLA waste-
waters; permit modification may be necessitated by the
need to incorporate specific pretreatraent requirements,
local limits, monitoring requirements and/or limitations
on additional pollutants of concern in the POTW's dis-
charge or other factors.
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9330
Policy to be developed in the future will apply to all
removal, remedial, and enforcement actions taken pursuant to
CERCLA and Section 7003 of RCRA. We would appreciate your feed-
back on this memorandum and any experience in the use of POTWs
for CERCLA removal or remedial actions that you have to offer.
If you have any comments or questions on this issue, please
submit written comments to the workgroup co-chairs: Shirley Ross
(FTS-382-5755) from the Office of Emergency and Remedial Response,
or Victoria Price (FTS-382-5681) from the Office of Water.
cci Ed Johnson
Russ Wyer
Tim Fields
Steve Lingle
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ARARs Q's and A's:
Compliance with Federal Water Quality Criteria
-------
?/EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9234.2-09/FS
June 1990
ARARs Q's & A's:
Compliance With Federal Water
Quality Criteria
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 on-site remedial actions must at least attain Federal and more stringent State applicable or 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 FR 8666, 8843 (March 8, 1990) (to be codified at 40 CFR
section 300.414(i)), and 55 FR 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), 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 answers to
a number of questions that arose in developing ARAR policies, in ARAR training sessions, and in identifying and complying
with ARARs at specific sites. This particular Q's and A's Fact Sheet addresses compliance with Federal Water Quality
Criteria (FWQC) as ARARs.
Ql. What are the Federal Water Quality Criteria?
A. Federal Water Quality Criteria (FWQC) are
nonenforceable guidance established by EPA for
evaluating toxic effects on human health and aquatic
organisms. FWQC are used or considered by the
States in setting their water quality standards (WQSs)
for surface water. State WQSs consist of designated
uses (i.e., fishing, swimming, drinking water) and
criteria for pollutants set at levels that are protective
of those uses. State WQSs are regulatory require-
ments, and permit limits are established to ensure
that the State use designations and criteria are met
There are two categories of FWQC that relate to
human exposure:
Ingestion of contaminated drinking water and
contaminated fish; and,
Ingestion of contaminated fish alone.
FWQC have been published for many different con-
taminants (both noncarcinogens and carcinogens).
FWQC for noncarcinogens are generally set above
zero, and address chronic and toxic effects. FWQC
for carcinogens are recommended at zero, although a
range of concentrations corresponding to incremental
cancer risks of 10"5, 10"*, and 10"7 are provided for
informational purposes and do not represent an
Agency judgement on an "acceptable" risk level.
In addition to the FWQC published for two human
exposure scenarios, FWQC are published for four
other categories. They consist of acute and chronic
toxiciry for fresh and saltwater aquatic life.
Q2. Do FWQC constitute potential ARARs for
Superfund sites?
A. Yes. Although compliance with FWQC is not legal-
ly required at non-Superfund sites, and they are not
"legally applicable" requirements under CERCLA,
FWQC may be ARARs when found by the Agency
to be relevant and appropriate (see final NCP
preamble, 55 FR at 8742 (March 8, 1990).
Specifically, CERCLA section 121(d)(2)(A) states
that every remedial action "shall require a level or
standard of control which at least attains ... water
quality criteria established under section 304 or 303
of the Clean Water Act, where such ... criteria are
relevant and appropriate under the circumstances of
the release or threatened release."
Q3. When are FWQC best suited to serve as cleanup
standards?
A. FWQC for specific pollutants should generally be
identified as ARARs for surface-water cleanup if
Printed on Rocycted Paper
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particular circumstances exist at the site that FWQC
were specifically designed to protect, unless the State
has promulgated WQSs for the specific pollutants
and water body at the site. Standards that are
specifically suited to site circumstances should
generally be used to establish cleanup levels at sites
where those circumstances are present.1 A State
WQS may be a site-specific adaptation of a FWQC.
In such cases, they are generally the appropriate
standards for the specific pollutant and water body,
rather than the FWQC. In the absence of any State
WQSs specific to the pollutant and water body of
concern, FWQC may be ARARs for surface-water
bodies when:
Protection of aquatic life is a concern. FJcamples
include sites where:
adverse impacts to aquatic life are foreseen
at the site; or
the surface-water bodies are designated for
the protection of aquatic life.
Human exposure from consumption of
contaminated fish is a concern.
For sites where protection of aquatic life is a concern,
the FWQC for fresh or saltwater aquatic life
(whichever is pertinent) may be ARARs. When
human exposure from consumption of contaminated
fish is a concern (e.g., sites that require remediation
of - recreational water bodies, saltwater bodies, or
estuaries used for fishing), the FWQC published for
human exposure from consumption of fish may be
ARARs for the sites. Examples include sites where
the surface-water bodies are used for fishing and an
exposure route consists of consumption of contam-
inated fish from the site.
Note, however, that if any of the above-mentioned
water bodies are also used for drinking, standards for
acceptable levels of contaminants in drinking water
may also be potential ARARs for the site (e.g., non-
zero maximum contaminant level goals (MCLGs),
maximum contaminant levels (MCLs), State WQSs
designated for drinking-water use, and FWQC
adjusted to reflect cleanup standards for drinking
water). (Question #5 of this fact sheet addresses
how to determine the ARAR in these situations,
when there are both drinking-water and environ-
mental concerns at the site.)
1 Sec proposed NCP preamble, 53 FR at 51442 (Dec. 21,1988), and the
final NCP preamble, 55 FR at 8755 (March 8, 1990). NOTE: the
guidance set out in the proposed NCP is still effective where not
superseded by guidance or regulations in the final NCP. See 55 FR at
8666, col. 3.
Q4. Should FWQC be used to set drinking-water clean-
up levels for surface water at sites that do not
present environmental concerns?
A. Rarely. FWQC should be used to set drinking-
water cleanup levels only when surface water serves
as an actual or potential drinking-water source and
other cleanup standards for drinking water (e.g.,
non-zero MCLGs, MCLs, or State WQSs designated
for drinking-water use) are not available, (see
Question 5 if impacts to aquatic organisms have also
been identified at the site). Where surface water
serves as an actual or potential drinking-water
source and there are no impacts to aquatic organ-
isms, the following requirements, where relevant and
appropriate, should be attained in the following
order:
State WQSs that are designated for drinking-
water use, and are more stringent than MCLs
or non-zero MCLGs, or specific to the uses of
that water body, or, if none,
Non-zero MCLGs; or, if none,
MCLs; or, if none,
FWQC adjusted for drinking-water use.
Q5. Should FWQC be used to set drinking water clean-
up levels for surface water at sites that do present
environmental concerns?
A. It depends. Generally, non-zero MCLGs or MCLs
should be identified as the ARARs for cleanup of
water that is or may be a potential source of drink-
ing water. However, at sites that also present envi-
ronmental concerns, RPMs should compare the
stringency of the non-zero MCLGs or MCLs to the
pertinent FWQC for aquatic life at the site. If the
FWQC for the aquatic life are more stringent, they
may be the relevant and appropriate requirements
to meet at the site. For example, the levels needed
to protect aquatic organisms from volatile organics
are generally much less stringent than the levels
needed to protect human exposure from drinking
water. Therefore, non-zero MCLGs or MCLs would
adequately protect both humans and most aquatic
life from volatile organics. However, the levels
needed to protect aquatic life from metals are more
stringent than those levels required to protect
human exposure from drinking water. As a result,
the FWQC for aquatic organisms would protect
both humans and aquatic life from metals, whereas
non-zero MCLGs or MCLs may not.
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Q6. Should FWQC be used to set cleanup standards for
ground water?
A. Rarely. FWQC should be used to set cleanup stan-
dards for ground water only if the ground water is a
current or potential source of drinking water, and
other cleanup standards for drinking water (such as
MCLs and non-zero MCLGs) are not available. If
FWQC are used to set cleanup standards for ground
water, the FWQC should first be adjusted for
drinking-water use (as discussed in Question 7).
Note: the issue becomes more complicated at sites
where the ground water flows into the surface water.
Where the ground water flows naturally into the sur-
face water, the ground-water remediation should be
designed so that the receiving surface-water body will
be able to meet any ambient water-quality standards
(such as State WQSs or FWQC) that may be ARARs
for the surface water. This means that the FWQC
should be considered when establishing cleanup levels
for the ground water at those sites, but they are not
necessarily ARARs for the cleanup of ground water.
At sites where the discharge from a ground-water
treatment facility will be deposited into the surface
water, the discharged water will have to meet all
effluent limitations found in the applicable State
National Pollutant Discharge Elimination System
(NPDES) permits, rather than the FWQC. (The
NPDES effluent limitations will assure compliance
with State WQSs.)
Q7. What is required to develop cleanup levels based on
FWQC for human exposure from drinking water
alone?
A. In those rare circumstances where the FWQC will be
used to establish cleanup levels for drinking water,
RPMs must adjust the original equation used to de-
velop FWQC for human exposure from both inges-
tion of contaminated drinking water and contam-
inated fish. When adjusting the FWQC to develop
cleanup standards for human exposure from drinking
water alone, RPMs should use the standard exposure
assumptions (i.e., 2 liters of water, 6.5 grams of edible
aquatic products, and an average body weight of 70
kg), unless data are available indicating that the
standard exposure assumptions are not pertinent to
the area in which the site is located (see Highlight I).
Note, however, that adjustment of the FWQC for
drinking is not simply a matter of sub-tracting one
FWQC from another.
While it is possible to derive cleanup levels for
drinking water from FWQC, FWQC were not intend-
ed to be used as drinking-water cleanup standards,
since no criteria are provided for human exposure
from ingestion of water alone. Moreover, the values
derived from the FWQC (in contrast with those de-
rived from MCLs and MCLGs) do not reflect the
contribution of other sources through an appor-
Hlghlight L: NONCARCINOGENIC EQUATION
For noncarcinogens, acceptable daily intakes
(AD Is) and criteria derived therefrom are
calculated from total exposure data that include
contributions from the diet and air. The equation
used to derive the criterion (C) is:
C = ADI - (DT+IN)/[2 liters + (0.0065 kg x R)J
where:
2 liters is assumed daily water consumption;
0.0065 kg is assumed daily fish consumption;
R is bioconcentration factor in units of I/kg;
DT is estimated non-fish dietary intake; and
IN is estimated dairy intake by inhalation.
The equation for carcinogens is not provided
in ibis fact sheet because FWQC for carcinogens
are recommended at zero, and therefore are not
ARARs for the Superfund program (see Question
#8 of this fact sheet). -
tionment factor. Therefore, FWQC may be less
useful as cleanup standards for potential drinking
water than the MCL/MCLG drinking-water stan-
dards (see proposed NCP preamble, 53 FR at 51442,
and final NCP preamble, 55 FR at 8755).
Q8. How should EPA comply when FWQC for carcino-
gens are determined to be potential ARARs?
A As previously mentioned, the recommended FWQC
for carcinogens are set at zero. Consistent with
Superfund policy on MCLGs, the zero-value FWQC,
since they cannot be measured, would not be consi-
dered appropriate cleanup standards and, thus, are
not "relevant and appropriate requirements" within
the meaning of CERCLA section 121(d)(2)(A) (see
final NCP preamble, 55 FR at 8755). Accordingly,
they are not ARARs and, therefore, they do not
need to be attained or waived.
For the carcinogens, the Office of Water Regula-
tions and Standards (OWRS) has also published for
informational purposes three concentration levels
corresponding to incremental cancer risks of 10"s,
10"6, and 10 , respectively. OWRS has expressly
stated in the preamble to their FWQC publications
that it makes no judgment or recommendation as to
which of the three concentrations provides an
"acceptable" risk level for carcinogens. Instead,
these concentration levels have been provided for
informational purposes only anc, therefore, simply
constitute guidance to-be-considei ed (TBCs) for the
Superfund program. As a result, an ARAR waiver
is unnecessary for FWQC published for carcinogens;
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Therefore, if these conditions are satisfied, the
antidegradation provision should be met.3
[Note: If pump-and-treat reinjections fail to msintain
the current quality of the aquifer, an interim action
waiver could be invoked, assuming the aquifer will be
suitable for its current use upon completion of the
remediation.]
Scenario #2: Natural Attenuation
Assumption: The ground water is contaminated or, at
a minimum, contains a plume of contamination. The
ground water is a Class I or II aquifer (which means
that it is or may be a potential source of drinking
water).
A) State ground-water antidegradation require-ments
that prohibit discharges: These are not applicable to
natural attenuation of the ground water because there
is no discharge during natural attenuation.
Compliance: The statute is not applicable to natural
attenuation, but it may be relevant and appropriate
depending upon circumstances at the site (see
Question #5 below).
B) State antidegradation requirements that require
ground-water maintenance consistent with its current
uses: These are potentially applicable to natural
attenuation.
Compliance: The remedy generally would comply
with these requirements during natural attenuation
remediation, if the remedy maintains (i.e., does not
adversely affect) the current quality of the aquifer.
Moreover, it is unlikely that natural attenuation will
interfere with the ground water's current uses, since
natural attenuation is typically confined to sites where
the contaminant level is low, there are small areas of
contamination, and the plume will not migrate signifi-
cantly. Therefore, natural attenuation generally
should meet this type of antidegradation requirement.
[Note: Where such requirements are not met, an
interim action waiver might be appropriate, assuming
the aquifer will be suitable for its current use upon
completion of the remediation.]
Here, again, the Stale may argue that a more limited definition of
"current uses" is the only valid interpretation. If so, consult ORC or OGC.
Scenario #3: Soil Flushing
Assumptions: The soil is contaminated. Through soil
flushing, contaminated effluent will enter the ground
water and then be extracted for treatment. The ground
water is a Class I or II aquifer (which means that it is
or may be a potential source of drinking water). The
aquifer may or may not be contaminated.
A) State ground-water antidegradation requirements that
prohibit discharges: These are likely to be applicable
because the effluent from the soil flushing probably
constitutes a discharge. However, the statute is
violated only if the discharge constitutes the type
prohibited by the statute.
Compliance: If, for example, the statute prohibits
discharges injurious to public health, EPA may
conclude that soil flushing would comply with it where
the receiving aquifer is already contaminated. (A
discharge of contaminated effluent into a con-
taminated aquifer generally would not be "injurious to
public health.") Moreover, if pump-and-treat
remediation is conducted concurrently with the soil
flushing, EPA may conclude that the "discharge" is not
injurious to public health because it would be
controlled and contained through the pump-and-treat
remediation.4
[Note: Since it is EPA's goal to restore ground water
to its beneficial uses, the Superfund program would
rarely propose a soil flushing remedy that would
degrade pristine or only slightly contaminated water.
Thus, the issue of compliance of soil flushing with an
antidegradation standard should rarely be a problem
for Superfund ground-water remediations. In rare
cases where degradation of a pristine aquifer through
soil flushing is necessary, RPMs should invoke the
interim measures ARARs waiver.]
B) State antidegradation requirements that require
ground-water maintenance consistent with its current
uses: These presumably are applicable to soil
flushing.
Compliance: The remedy generally would comply with
these requirements during soil flushing, if the remedy
maintains (i.e., does not adversely effect) the current
quality of the aquifer. Current quality of the aquifer
is maintained if the effluent at least meets current
water quality levels of the aquifer. Because soil
flushing is generally only considered for contaminated
aquifers, these requirements typically may be met.5
Again, the State may argue that a more limited interpretation is
required. If so, consult ORC or OGC.
State arguments that a more restrictive interpretation of the standard
is required should be referred to ORC or OGC.
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Highlight L: KEY FACTORS FOR THE
APPLICABILITY OF STATE GROUND-WATER
ANTIDEGRADATION REQUIREMENTS
TO SOIL FLUSHING
Whether the State statute is triggered because
either the effluent constitutes a "discharge" under
the State law, or the State statute requires
ground-water maintenance (during CERCLA
remediation) consistent with current uses;
Whether the statute defines "current uses" as
present uses or pre-contamination uses;
Whether the aquifer is pristine, slightly
contaminated, or greatly contaminated;
Whether the effluent has high contaminant
levels; and,
Whether soil flushing will be conducted
concurrently with pump-and-treat remediation of
the ground water.
Q5. Are State ground-water antidegradation require-
ments likely to be relevant and appropriate re-
quirements for remediation that affects the ground
water?
A. It depends upon whether the requirements are well-
suited for use at the site. While examples are given
below, a more definite answer cannot be given
because relevance and appropriateness is a site-
specific determination. See section 300.400(g)(2) of
the revised NCP. (See the attached matrix for
additional examples.)
For example, State antidegradation requirements that
are applicable to discharges injurious to public health
are potentially relevant and appropriate to all
ground-water remediations (whether or not there is
a discharge), by prohibiting remediations injurious to
public health. These principles, when applied to
CERCLA remediations, should be analyzed as
follows:6
A) EPA does not consider pump-and-treat remediations
of a contaminated plume to be injurious to public
health because they are generally effective at
containing and treating contaminated plumes. (See
OSWER Directive 9355.4-03, October 1989, entitled
"Considerations in Ground-Water Remediation at
Superfund Sites"). Therefore, pump-and-treat
The following reflects EPA's general analysis of how several lypes of
remediation should be evaluated. The State may take a different and more
limited view of what was intended under the statute. If the State argues
for a different interpretation of its laws, consult ORC or OGC.
remediations would generally comply with these
requirements, if relevant and appropriate.
B) Natural attenuation remediation would also be
expected to comply with these requirements
prohibiting injurious discharges (if relevant and
appropriate). Examples include sites where: (1) a
contaminated plume is located within a Class III
aquifer; (2) a contaminated plume is moving within
parts of a Class I or II aquifer that are also signi-
ficantly contaminated; or (3) the plume is small, its
contaminant levels are low, and it will not migrate
significantly. Natural attenuation might be said not
to comply with these requirements if it allows a con-
taminated plume to move into a pristine, or only
slightly contaminated portion of a Class I or II
aquifer; the interim action waiver must be invoked at
such sites, and precautions such as institutional
controls should be taken.
C) Soil flushing generally would comply with these
requirements, if relevant and appropriate, at sites
where the aquifer is already contaminated. Con-
taminants from soil flushing might be said to be
injurious to public health if introduced into a
pristine, or only slightly contaminated portion of a
Class I or II aquifer. In those rare cases where it is
necessary to select this remedy at such sites, the
interim action waiver must be invoked, and
precautions such as institutional controls should be
taken.
Highlight 2: COMPLIANCE WITH STANDARDS
SET BELOW DETECTION LEVELS
State ground-water antidegradation standards that
are set below detection levels cannot be measured or
verified. Therefore, if such standards are applicable,
the technical impracticability waiver should generally
be invoked where compliance with such standards is
not possible due to detection limits. Potentially
relevant and appropriate standards that cannot be
measured or verified may not be appropriate and,
therefore, are not ARARs (see Preamble to the
revised NCP, 55 FR 8750-8752).
Regions should not extrapolate from existing data or
technologies to reach a level set below detection
capabilities because such extrapolations cannot be
verified scientifically with any degree of certainty.
Without verification, neither the Agency nor the
potentially responsible parties could legally establish
that cleanup goals were met. Furthermore, the NCP
states that relevant and appropriate requirements
must be measurable and attainable since their pur-
pose is to set a standard that an actual remedy will
attain (see Preamble to the revised NCP, 55 FR
8752).
-------
Highlight 3: POTENTIAL ARARs WAIVERS FOR
STATE ANTIDEGRADATION REQUIREMENTS
The Interim Measure Waiver: This waiver provides
that the action selected need not attain an ARAR
where the action "is only part of a total remedial
action that will attain such level or standard of
control when completed." See CERCLA section
121(d)(4)(d). Therefore, the interim measures waiver
may be used to waive ARARs for interim measures
which, by their temporary nature, do not attain all
ARARs. However, the interim measure must be
followed by, or be part of, complete measures that
attain all ARARs, and it should not exacerbate site
problems nor interfere with the final remedy (see the
revised NCP, 55 FR 8747-8748 (March 8, 1990)).
The Inconsistent Application of State Requirements
Waiver: This waiver is intended to prevent the
application to Superfund sites of State requirements
that have not been consistently applied elsewhere in
a State. State standards are presumed to have been
consistently applied unless there is evidence to the
contrary. When questioned by EPA, States may
provide evidence of consistency of application by
demonstrating: (1) the similarity of sites or response
circumstances; (2) the proportion of noncompliance
cases; (3) reasons for noncompliance; and (4)
intentions to apply future requirements (see the
revised NCP, 55 FR 8749 (March 8, 1990)).
NOTICE: The policies set out in this ARARs Q's and
A's are intended solely for guidance. They are not
intended, nor can they be relied upon, to create any
rights enforceable by any party in litigation with the
United States. EPA officials may decide to follow the
guidance provided in this Q's and A's, or to act at
variance with the guidance, based on an analysis of
specific site circumstances. The Agency also reserves
the right to change this guidance at any time without
public notice.
-------
MATRIX ANALYSIS OF STATE GROUND-WATER ANTIDEGRADATION REQUIREMENTS
AS THEY PERTAIN TO CERTAIN REMEDIES AND SITE CIRCUMSTANCES*
REMEDY/SITE CIRCUMSTANCES
STATE LAW
GROUND-WATER REMEDIATION:
PUMP AND TREAT
(Aquifer With a Contaminated
Moving Plume)
GROUND-HATER REMEDIATION:
NATURAL ATTENUATION
(Aquifer With a Contaminated
Moving Plume)
SOIL REMEDIATION:
SOIL FLUSHING
(Where the Aquifer May or May
Not Be Contaminated
Followed by Pump and Treat)
SOIL REMEDIATION:
SOIL FLUSHING
(Where the Aquifer May or May
Not Be Contaminated
Concurrent With Pump and Treat)
The ground water
must be protected.
Discharges that are
injurious to public
health are pro-
hibited.
RAR:"* ground-water
remediations that
are injurious to
public health are
prohibited. This
may arguably occur
if a remediation
allows a contami-
nated plume to move.
The ground water
must be protected.
No discharge is
permitted unless a
State Board issues a
permit.
RAR: ground-water
remediations must
protect the ground
water consistent
with State permit
standards (which
may, for example,
prohibit the
introduction of
contaminants into a
portion of an
aquifer used for
drinking).
Not applicable if there is no
discharge. If each reinjec-
tion is a "discharge," the
requirement is met if the
discharge is not "injurious
to public health" (e.g.,
where the receiving aquifer
is already contaminated, or
if the reinjection has low
contaminant levels). It is
generally not a RAR if the
plume is moving into parts of
the aquifer that are also
significantly contaminated.
If it is a RAR, and it re-
quires some degree of plume
containment, we comply with
it through pump and treat.
Permits are not required (see
CERCLA §121(e)(l)). Substan-
tive requirements of the per-
mit program are not appli-
cable if there is no dis-
charge. If each reinjection
constitutes a "discharge,"
the requirement is met if
each reinjection meets the
substantive requirements of
the permitting regulations
(e.g., no "harmful" dis-
charge). It is generally not
a RAR if the plume is moving
to parts of the aquifer that
are also significantly con-
taminated. If it is a RAR,
and it requires some degree
of plume containment, we
comply with it through pump
and treat.
Not applicable because there
is no discharge. It is gen-
erally not a RAR if the plume
is moving to parts of the
aquifer that are also signi-
ficantly contaminated. If it
is a RAR, and it requires some
degree of plume containment,
we comply with it by limiting
natural attenuation to sites
where the plume will not mi-
grate to the portions of the
aquifer used for drinking and
contaminant levels are low,
thereby preventing injury to
public health. Otherwise, we
may use the interim action
waiver, usually accompanied by
institutional controls.
Permits are not required (see
CERCLA 5121(e)(l)). Substan-
tive requirements of the per-
mit program are not applicable
because there is no dis-
charge. It is generally not a
RAR if the plume is moving to
parts of the aquifer that are
also significantly contami-
nated. If it is a RAR, and it
requires some degree of plume
containment, we may comply
with it by limiting natural
attenuation to sites where the
plume will not migrate into
portions of the aquifer desig-
nated for drinking or other
protected uses. Otherwise, we
may use the interim action
waiver, usually accompanied by
institutional controls.
May be a discharge; however,
the requirement is met if the
discharge is not injurious to
public health (e.g., because
the aquifer already exceeds
health-based levels or if the
discharge has low contaminant
levels). If discharging to a
pristine or slightly contam-
inated aquifer, we may use
the interim action waiver.
May be a discharge; however,
no permits are required under
CERCLA 5121(e)(1). If the
substantive requirements of
the permit program are ARARs,
the action may comply if the
contaminant levels of the
effluent entering the ground
water do not exceed the
discharge standards set in
the ROD (based on State
permit requirements). Other-
wise, we may use the interim
action waiver.
May be a discharge; however,
the requirement is met if the
discharge is not injurious to
public health (e.g., bec'ause
the aquifer already exceeds
health-based levels or if the
discharge has low contaminant
levels). If it is an ARAR, we
may comply with it by conduct-
ing pump and treat simulta-
neously, if the discharge (as
it is part of a contained
treatment system) is not injur-
ious to public health. Other-
wise, we may use the interim
action waiver.
May be a discharge; however, no
permits are required under
CERCLA §121(e)(1). If the
substantive requirements of the
permit program are ARARs, the
action may comply if the
contaminant levels of the
effluent entering the ground
water do not exceed the
discharge standards set in the
ROD (based on State permit
requirements). Otherwise, we
may use the interim action
waiver.
This matrix provides general considerations only.
Consult with ORC or OGC on specific applications.
- 1 -
Relevant and Appropriate Requirement
-------
MATRIX ANALYSIS OF STATE GROUND-WATER ANTIDEGRADATION REQUIREMENTS
AS THEY PERTAIN TO CERTAIN REMEDIES AND SITE CIRCUMSTANCES*
REMEDY/SITE CIRCUMSTANCES
STATE LAW
GROUND-WATER REMEDIATION:
PUMP AND TREAT
(Aquifer With a Contaminated
Moving Plume)
GROUND-WATER REMEDIATION:
NATURAL ATTENUATION
(Aquifer With a Contaminated
Moving Plume)
SOIL REMEDIATION:
SOIL FLUSHING
(Where the Aquifer May or May
Not Be Contaminated
Followed by Pump and Treat)
SOIL REMEDIATION:
SOIL FLUSHING
(Where the Aquifer May or May
Not Be Contaminated
Concurrent With Pump and Treat)
3. The ground water
must be protected.
No discharge is
permitted to a
usable aquifer.
RAR:** ground-water
remediations that do
not protect a usable
aquifer are pro-
hibited. This may
occur if the remedi-
ation allows a con-
taminated plume to
move.
Requirement is not applicable
if there is no discharge. If
each reinjection constitutes
a "discharge," the require-
ment is not applicable if the
prior contamination already
rendered the aquifer un-
usable. The requirement is
not a RAR if the plume has
rendered the aquifer unusable
or if the plume is moving to
parts of the aquifer that are
also significantly contami-
nated. If it is a RAR, and
it requires some degree of
plume containment, we comply
with it through pump and
treat.
Requirement is not applicable
because there is no discharge.
Also, the requirement is not
applicable if the plume has
rendered the aquifer unusable.
The requirement may not be a
RAR if the plume has rendered
the aquifer unusable or if the
plume is moving to parts of
the aquifer already contami-
nated. If it is a RAR, and it
requires some degree of plume
containment, we may comply
with it by limiting natural
attenuation to sites where the
plume will not migrate to
usable portions of the aqui-
fer. Otherwise, we may use
the interim action waiver,
usually accompanied by insti-
tutional controls.
May be a discharge; however,
the requirement is not appli-
cable if the aquifer is not
usable (e.g., because it is
already contaminated). This
requirement is probably ap-
plicable if the aquifer is
pristine or slightly contam-
inated. If so, we may use
the interim action waiver.
May be a discharge; however,
the requirement is not appli-
cable if the aquifer is not
usable (e.g., because it is al-
ready contaminated). If it is
an ARAR, we may comply with it
by simultaneously conducting
pump and treat if the prompt
containment and treatment of
contaminants protects usable
portions of the aquifer.
Otherwise, we may use the
interim action waiver.
The ground water
must be protected.
No discharge is
permitted if it
interferes with
existing uses.
RAR:"* ground-water
remediations that
interfere with
existing or
potential uses are
prohibited. This
may occur if the
remediation allows a
contaminated plume
to move.
Requirement is not applicable
if there is no discharge. If
each reinjection constitutes
a "discharge," the require-
ment is met if the existing
uses(/quality) of the aqui-
fer is maintained (e.g.,
where the aquifer is already
contaminated). It would
generally not be a RAR if the
plume is moving to a portion
of the aquifer that is al-
ready contaminated. If it is
a RAR, and it requires some
degree of plume containment,
we comply with it through
pump and treat.
Requirement is not applicable
because there is no discharge.
It would generally not be a
RAR if the plume is moving to
a portion of the aquifer that
is already contaminated. If
it is a RAR, and it requires
some degree of plume contain-
ment, we may comply with it by
limiting natural attenuation
to sites where contaminant -
levels are low and any plume
migration will not affect the
existing uses(/quality) of the
aquifer. Otherwise, we may
use the interim action waiver,
usually accompanied by insti-
tutional controls.
May be a discharge; however,
the requirement is not appli-
cable ;.f the existing uses
(/quality) of the aquifer is
maintained (e.g., where the
aquifer is already contami-
nated). This requirement is
probably applicable if the
aquifer is pristine or
slightly contaminated. If so,
we may use the interim action
waiver.
May be a discharge; however,
the requirement is not appli-
cable if the existing uses
(/quality) of the aquifer is
maintained (e.g., where the
aquifer is already contami-
nated). This requirement is
probably applicable if the
aquifer is pristine or slightly
contaminated. If so, we may
use the interim action waiver.
This matrix provides general considerations only.
r».. 1* _<»h nor- nry ,«.-<«4» li,-.,n,..
- 2 -
Relevant and Appropriate Requirement
-------
MATRIX ANALYSIS OF STATE GROUND-WATER ANTIDEGRADATION REQUIREMENTS
AS THEY PERTAIN TO CERTAIN REMEDIES AND SITE CIRCUMSTANCES*
REMEDY/SITE CIRCUMSTANCES
STATE LAW
GROUND-WATER REMEDIATION:
PUMP AND TREAT
(Aquifer With a Contaminated
Moving Plume)
GROUND-WATER REMEDIATION:
NATURAL ATTENUATION
(Aquifer With a Contaminated
Moving Plume)
SOIL REMEDIATION:
SOIL FLUSHING
(Where the Aquifer May or May
Not Be Contaminated
Followed by Pump and Treat)
SOIL REMEDIATION: .
SOIL FLUSHING
(Where the Aquifer May or May
Not Be Contaminated
Concurrent With Pump and Treat)
Maintain ground
water at existing
high quality unless
the State Board
approves the change
to the water qual-
ity. [Statute
requires ground-
water maintenance at
existing high
quality during
remediation. This
may require
containment of a
contaminated moving
plume.]
RAR:"* same as
applicable.
Ground-water quality
must be maintained
commensurate with
current uses.
Statute requires
maintenance of
ground-water quality
during remediation.
This may require
containment of a
contaminated moving
plune.
RAR:** same as
applicable.
Requirement is not applicable
if the ground water is not of
high quality due to the con-
taminated plume. This re-
quirement may be applicable
if the aquifer is pristine or
only slightly contaminated.
If so, we may use the interim
action waiver. It may be a
RAR if the plume is moving to
portions of the aquifer that
are designated for drinking
or other protected uses. If
the requirement is a RAR, and
it requires some degree of
plume containment, we comply
with it through pump and
treat.
Requirement is presumably
applicable. Requirement is
met if the remedy maintains
the current .quality of the
aquifer (e.g., where the re-
injections at least meet
current water uses(/quality)
levels of the aquifer). If
the requirement is an ARAR
and it requires some degree
of plume containment, we
comply with it through pump
and treat.
Requirement is not applicable
if the ground water is not of
high quality due to the con-
taminated plume. If the re-
quirement is a RAR, we may
comply with it by limiting
natural attenuation to sites
where the plume contaminant
levels are low and the plume
will not migrate signifi-
cantly. Otherwise, we may use
the interim action waiver,
usually accompanied by insti-
tutional controls.
Requirement is presumably
applicable. Requirement is
met if the remedy maintains
the current uses(/quality) of
the aquifer (e.g. where plume
contaminant levels are low,
there are small areas of
contamination, and the plume
will not migrate signifi-
cantly) , Otherwise, we may
use the interim action waiver,
usually accompanied by insti-
tutional controls.
Requirement is not applicable
if the ground water is al-
ready contaminated. This re-
quirement may be applicable
if the aquifer is pristine or
only slightly contaminated.
If so, we may use the interim
action waiver.
Requirement is presumably
applicable. Requirement is
met if the remedy maintains
the current usesf/quality) of
the aquifer (e.g., where the
effluent at least meets the
current water quality levels
of the aquifer). Otherwise,
we may use the interim action
waiver.
Requirement is not applicable
if the ground water is already
contaminated. This requirement
may be applicable if the aqui-
fer is pristine or only slight-
ly contaminated. If so, we may
use the interim action waiver.
Requirement is presumably ap-
plicable . Requirement is met
if the remedy maintains the
current uses(/quality) of the
aquifer (e.g., where the
effluent at least meets the
current water quality levels of
the aquifer). Otherwise, we
may use the interim action
waiver.
This matrix provides general considerations only.
Consult with GRC or OGC on specific applications.
- 3 -
Relevant and Appropriate Requirement
-------
ARARs Qfs and Afs:
State Ground-Water Antidegradation Issues
-------
vvEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9234.2-11/FS
July 1990
ARARs Q's & A's
State Ground-Water
Antidegradation Issues
Office of Emergency and Remedial Response
Office of Program Management OS-240
Quick Reference Fact Sheet
Section 121(d)(2) 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 or 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 mandates attainment of ARARs during
removal actions to the extent practicable. See revised NCP, 40 CFR section 300.435(b)(2) (55 FR 8666, 8852)(March 8,
1990) and section 300.415(i) (55 FR 8666, 8843)(March 8, 1990).
This Q's and A's fact sheet is designed to provide guidance on the status of State ground-water antidegradation
provisions as potential ARARs for CERCLA ground-water and soil remedial actions. The guidance in this fact sheet
reiterates Agency policy already in practice in EPA's Regional offices. The goal and policy of the Superfund program is
to return usable ground water to its beneficial uses within the timeframe that is reasonable, given the particular
circumstances of the site. In addition to our goal of ground-water cleanup, Superfund has a nondegradation policy in that
we strive for the prevention of further degradation of the ground water during our remedial actions. However, it should
be noted that more stringent State standards than those imposed by EPA policy may be imposed by State antidegradation
requirements. Such State requirements, if they have been determined to be ARARs for the site, would have to be met (e.g.,
by meeting the discharge requirements) or waived (e.g., by the interim remedy waiver). Nevertheless, even where temporary
degradation of the ground water may be required during the remedial action, we will provide protection by restricting access
or providing institutional controls, and EPA response actions will ultimately result in restoration of the ground water's
beneficial uses.
(NOTE: States use the terms "nondegradation" and "antidegradation" interchangeably; there does not appear to be
a consistent distinction between the two. As a result, all State nondegradation and antidegradation requirements are
referred to in this fact sheet as antidegradation requirements.)
Ql. What is a State ground-water antidegradation
requirement?
A. State antidegradation requirements vary widely in
their scope and drafting. However, as a general mle,
they are anti-pollution requirements (not cleanup
requirements) designed to prevent degradation of the
surface water or ground water. Antidegradation
requirements typically accomplish their purpose in
one of two ways: (1) by prohibiting or limiting
discharges that potentially degrade the surface water
or ground water (typically action-specific require-
ments); or (2) by requiring maintenance of the
surface-water or ground-water quality consistent with
current uses.
Under the Clean Water Act, every State is required
to classify all of the waters within its boundaries
according to their intended use. As required by EPA
regulation, all States have established surface-water
antidegradation regulations. These requirements may
be potential ARARs for CERCLA remediations in-
volving discharges to surface water. Although not
specifically required by EPA, the majority of States
have also established some form of ground-water
antidegradation provisions. These States may have
enacted specific ground-water antidegradation
statutes, or they may include ground-water protection
provisions within general environmental statutes.
These State provisions for ground water may
constitute potential ARARs for CERCLA remedia-
tions that have an impact upon the ground water
(e.g., ground-water reinjection or soil flushing).
Q2. State antidegradation requirements are often
expressed as general goals. Can they be potential
ARARs?
A. Yes, antidegradation requirements expressed as
general goals may be potential ARARs if they are:
-------
(1) directive in nature and intent; and (2) established
through a promulgated statute or regulation that is
legally enforceable (see Preamble to the revised NCR
at 55 FR 8746).
Antidegradation provisions are directive in nature
when they contain narrative or numerical limits, or
are implemented by State regulations that provide
needed specificity. For example, general antide-
gradation goals are sufficiently directive when
implemented by regulations setting limits that
ground-water contamination may not exceed. When
a general State antidegradation statute does not have
any implementing regulations, EPA has considerable
discretion in determining what is required to inter-
pret or comply with the law (see Preamble to the
revised NCP at 55 FR 8746).1 For example, EPA
may look at State surface-water or ground-water use
and classification systems, such as those that set
water-quality standards, since they designate uses of
a given water body and/or maximum concentration
levels to protect those uses. Alternatively, EPA may
look at a State's wellhead protection program for
requirements concerning ground-water maintenance.
If the State's narrative, general antidegradation goals
stand alone, they may be nothing more than
statements of intent about desired outcomes or
conditions. Statements of intent are insufficiently
directive to constitute potential ARARs. Likewise,
vague or ambiguous narrative descriptions of ground-
water degradation limits probably do not provide
sufficient direction to constitute potential ARARs
(see Preamble to the revised NCP at 55 FR 8746).
To be considered a potential ARAR, a State anti-
degradation law must be established through a
promulgated statute or regulation that is legally
enforceable and "of general applicability" (see NCP,
section 300.400(g)(4)). To be legally enforceable,
State standards must be requirements - not guidance
-- that are issued according to the State procedural
requirements and that contain certain specific
enforcement provisions or are otherwise directly
enforceable under State law (see Preamble to the
revised NCP at 55 FR 8746). The phrase "of general
applicability" means that potential State ARARs must
be applicable to all remedial situations described in
the requirement, not just to CERCLA sites (see
Preamble to the revised NCP at 55 FR 8746).
The State may argue that its interpretation of the meaning of the goal,
the State's non-binding guidance, should determine the statute's
eaning. The State may also argue that State courts have upheld the
.ate's interpretation of the requirement. If either of these arguments is
ised, advice should be sought from the Office of Regional Counsel
)RC) or the Office of General Counsel (OGC).
Q3. At what point do State ground-water antidegradation
requirements become ARARs at a Superfund site?
A. Antidegradation requirements are generally action-
specific requirements that may apply during the
course of and at the completion of the Agency
response action. They apply prospectively, and
generally obligate the Agency only to prevent further
degradation of the water during and at completion of
the response action (not prior to it). While anti-
degradation requirements are not cleanup laws, in
some limited cases they may, as relevant and appro-
priate requirements, be appropriate for establishing
a cleanup level for past contamination.
Furthermore, EPA is not required to take any
response action unless and until EPA determines
that it is appropriate to do so. Even then, this action
must meet (or waive) a State requirement only if the
Agency determines that the requirement is an ARAR
for the site. The Agency determines what Federal
and State laws constitute ARARs that must be met
or waived during or at the completion of a response
action. Compliance with a specific Federal or State
law is triggered when the Agency determines that a
requirement is either applicable to site remediation,
or relevant and appropriate because its use is well-
suited to site circumstances. However, neither
CERCLA nor the NCP requires the Agency to
comply with ARARs prior to conducting a response
action. Therefore, when the Agency decides to take
a response action, and if the Agency determines that
a State antidegradation requirement is an ARAR for
a site, the Agency must meet or waive the
requirement.
It should also be noted that only ARARs within the
scope of the response action have to be met or
waived. If the Agency is conducting an RI/FS to
determine the action that may be necessary at a site,
the State's ground-water antidegradation require-
ments are generally beyond the scope of the action,
and therefore are not likely to be potential ARARs
for it. Of course, if a proposed RI/FS activity such as
site sampling has the potential to temporarily
degrade the ground water, the specific terms of the
State ground-water antidegradation requirement
should be examined to determine whether it is an
ARAR for that action.
Q4. When are State ground-water antidegradation
requirements likely to be applicable to CERCLA
remediations that affect the ground water? When
they are applicable, what is required for compliance?
A. The attached matrix analyzes whether six hypothetical
State antidegradation requirements for ground water
are ARARs for four different CERCLA remedia-
tions. For most sites, the matrix may be helpful in
determining whether State antidegradation require-
-------
ments are ARARs for remediations that affect the
ground water. The information in the text of this fact
sheet is provided to give the specific analysis and
rationale underlying the conclusions reached in the
attached matrix. Although only two of the six
hypothetical State antidegradation requirements are
analyzed here in detail, these principles should
generally apply to most State ground-water
antidegradation requirements.
Applicability of State ground-water antidegradation
requirements depends upon three factors:
The specific language of the State statute or
regulations;
The nature of the CERCLA remediation; and
The circumstances at the site.
First, a review of the specific language of the State
statutes (or regulations) reveals that most anti-
degradation requirements fall into one of two cate-
gories: (1) those that focus upon prohibited
discharges; and (2) those that focus upon maintaining
the ground water consistent with its uses. Second,
with respect to the nature of the CERCLA remedia-
tion, there are three forms of remediation that may
trigger ground-water antidegradation requirements:
ground-water pump-and-treat, ground-water natural
attenuation, and soil flushing. Finally, applicability is
affected by the circumstances at the site such as the
contaminant levels of the effluent, and the quality of
the receiving aquifer. The sections that follow pro-
vide hypothetical examples of the applicability of
State ground-water antidegradation requirements.
The examples discuss the applicability of the two
categories of State antidegradation requirements
under the three different remediation scenarios (i.e.,
pump and treat, natural attenuation, and soil
flushing).
[Note on "current uses": Some State antidegradation
statutes require maintenance of ground-water quality
consistent with its "current uses." Where the State
statute (or implementing regulation) has defined
"current uses," that definition should be considered an
integral part of the requirement that helps determine
whether EPA response actions comply with these
requirements, if they are determined to be ARARs.
For example, any State antidegradation statute that
defines "current uses" as "present uses" would be met
at sites where the CERCLA discharge is to an aquifer
that is already contaminated such that it has no
present uses. State antidegradation requirements that
do not define "current uses" will generally be met at
Superfund sites where EPA ground-water or soil
remediation maintains, or does not adversely effect,
the current quality of the aquifer. The following
analysis of antidegradation requirements for main-
taining the ground water is based upon the
assumption that they do not define "current uses."]
Scenario #1: Pump-and-Treat
Assumption: The ground water is contaminated or, at a
minimum, contains a plume of contamination. The
ground water is a Class I or II aquifer (which means
that it is or may be a potential source of drinking
water).
A) State ground-water antidegradation requirements
that prohibit discharges: These are not applicable to
ground-water pump-and-treat remedies if there is no
"discharge," as defined under the ARAR. However,
even if the reinjections associated with each iteration
during pump-and-treat constitute a discharge under
the State statute, the statute is violated only if the
discharge constitutes the type prohibited by the
statute.
Compliance: If, for example, the statute prohibits
discharges that are injurious to public health, the
remedy generally would comply with it where the
receiving aquifer is already contaminated. (A dis-
charge of contaminated effluent into a contaminated
aquifer generally would not be "injurious to public
health.") Moreover, the discharge, as part of a
contained pump-and-treat system, may not be in-
jurious to public health. [Note: Since it is EPA's
goal to restore ground water to its beneficial uses,
the Superfund program would rarely propose a
pump-and-treat remedy that would degrade pristine
or only slightly contaminated water. In those rare
cases where the remedy involves reinjections to a
pristine or only slightly contaminated aquifer, an
interim action waiver might be appropriate.]
B) State antidegradation requirements that require
ground-water maintenance consistent with its
current uses: These generally are applicable to
ground-water pump-and-treat remediations.
Compliance: The remedy generally would comply
with these requirements during pump-and-treat
remediations, if the remedy maintains (i.e., does not
adversely effect) the current quality of the aquifer.
Current quality of the aquifer should generally be
maintained through pump-and-treat for two reasons:
(1) pump-and-treat remediation will decrease, not
increase, the contaminant level of the aquifer; and
(2) it serves to contain the contaminated plume.
A Stale may argue that ii has interpreted the phrase "injurious to public
health" in guidance or policies, or that court decisions have addressed the
issue, and that EPA must follow that interpretation. If such an argument
is raised, it must be referred to ORC or OGC.
-------
ARARs Q's and A's Compliance with New SDWA
National Primary Drinking Water Regulations
for Organic and Inorganic Chemicals
-------
&EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9234.2-15/FS
August 1991
ARARs Q's & A's:
Compliance with New SDWA
National Primary Drinking Water Regulations
for Organic and Inorganic Chemicals
Office of Emergency and Remedial Response
Office of Program Management OS-240
Quick Reference Fact Sheet
Section 121(d) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as
amended by the 1986 Superfund Amendments and Reauthorization Act (SARA), requires that on-site remedial actions must
attain or waive Federal or more stringent State applicable or relevant and appropriate requirements (ARARs) upon
completion of the remedial action. The 1990 National Oil and Hazardous Substances Pollution Contingency Plan (NCP)
requires compliance with ARARs during remedial actions as well as at their completion, and compels attainment of ARARs
during removal actions to the extent practicable, considering the exigencies of the situation. (See NCP, 55 FR 8666, 8852
(March 8,1990)(codified at 40 CFR 300.435(b)(2)), and 55 FR 8666,8843 (March 8,1990)(codified at 40 CFR 300.415(i)).
To implement the ARARs provision, EPA developed guidance, CERCLA Compliance With Other Laws Manual:
Parts I and II (Publications 9234.1-01 and 9234.1-02), and has provided training to Regions and the States on the
identification of and compliance with ARARs. EPA also is preparing a series of short fact sheets to provide guidance on
a number of questions that arose in developing ARAR policies, and in identifying and complying with ARARs at specific
sites. This particular fact sheet addresses compliance with new Safe Drinking Water Act (SDWA) National Primary
Drinking Water Regulations for organic and inorganic chemicals, which were promulgated on January 30, 1991. (See 56
FR. 3526 January 30, 1991, to be codified at 40 CFR Parts 141, 142, and 143.)
Ql. What are these National Primary
Drinking Water Regulations?
A. These National Primary Drinking Water
Regulations (NPDWRs) establish Maximum
Contaminant Level Goals (MCLGs) and
Maximum Contaminant Levels (MCLs) for
31 organic and inorganic contaminants,
which are effective July 30,1992. They also
repropose MCLGs and MCLs for 5
additional contaminants (aldicarb, aldicarb
sulfoxide, aldicarb sulfone,
pentachlorophenolj and barium) that were
originally promulgated on July 8, 1987 and
will become effective January 1, 1993.
Finally, these regulations promulgate
MCLGs and treatment technique
requirements for acrylamide and
epichlorohydrin. See Highlight 1 for the
definitions of MCLs and MCLGs. For the
full text of these SDWA regulations, see 56
FR 3526 (January 30, 1991). See Highlight
3 for a list of the contaminants and their
corresponding MCLs and MCLGs.
Q2. Are MCLs potential ARARs for CERCLA
sites?
A. Yes. CERCLA section 121(d)(2)(A)(i)
requires on-site CERCLA remedial actions to
attain or waive the "standards" or "levels of
control" issued under the SDWA (i.e.,
MCLs) where they are applicable or relevant
and appropriate. (Note: As mentioned in
the introduction to this fact sheet, the NCP
extends the statutory ARARs requirement to
removals, to the extent practicable
considering the exigencies of the situation, as
well as remedial actions. (See section
300.415(i)(l) and (2) of the NCP, 55 FR.
8843.)
MCLs are potentially relevant and
appropriate during a CERCLA cleanup for
ground or surface waters that are current or
potential sources of drinking water. Since
ground water contamination sites account for
approximately 70 percent of all sites on the
National Priorities List, these potentially
-------
relevant and appropriate requirements are
triggered frequently at CERCLA sites.
In addition, MCLs also may be applicable
where water at a CERCLA site is delivered
through a public water supply system, if that
system has at least IS service connections or
serves at least 25 year-round residents.
Since CERCLA projects only rarely treat tap
water, however, there will be few instances
in which MCLs are applicable for
groundwater cleanup at a CERCLA site.
(See NCP Preamble, 55 FR 8750 and
CERCLA Compliance With Other Laws
Manual. Part I. Publication 9234.1-01,
August 1988, page 4-8.)
REMINDER: It makes a difference
whether a requirement is applicable or
relevant and appropriate. The
"applicability" determination is a legal one,
and it provides the Agency with very little
flexibility. The "relevant and appropriate"
determination is a site-specific determination,
which provides the Agency with much
greater flexibility since the Agency may
determine that a requirement is not
"appropriate", given site circumstances.
(Therefore it would not be an ARAR for that
site.) Waivers are also available if the
requirement is relevant and appropriate but
cannot be met for one of the reasons set out
in CERCLA section 121(d)(4) (e.g., the
ground water is a potential drinking water
source and thus the MCL is relevant and
appropriate, but attainment of the MCL is
technically impracticable).
In contrast, an applicable requirement, once
triggered at a site, must simply be met or
waived. (For additional information on this
issue, see "ARARs O's and A's: General
Policy. RCRA. CWA. SDWA &
Administrative Record."
9234.2-01/FS-A, July 1991.)
Publication
Q3. Are MCLGs potential ARARs for
CERCLA sites?
A. Yes. Section 121(d)(2)(A) of CERCLA also
requires on-site remedial actions to attain
MCLGs under the SDWA "where they are
relevant and appropriate under the
circumstances" of the release or threatened
release. Under the NCP, EPA requires that
MCLGs set at levels above zero (i.e.,
non-zero MCLGs) be attained during a
CERCLA cleanup where they are relevant
and appropriate (i.e., generally for ground or
surface waters that are current or potential
sources of drinking water). If the MCLG is
equal to zero, EPA determined under the
NCP that the MCLG is not appropriate for
setting cleanup levels. In those
circumstances, the corresponding MCL will
be the potentially relevant and appropriate
requirement. (See section 300.430(e)(2)(i)
(B) and (C) of the NCP, 55 FR. 8848.)
REMINDER: Although MCLGs are
potentially relevant and appropriate, they are
never applicable requirements at a CERCLA
response action because they are not
enforceable "standards" or "levels of
control."
Highlight 1:
Definitions of MCLs and MCLGs
Maximum Contaminant Levels
(MCLs) are enforceable standards
that apply to specified contamin-
ants which EPA has determined to
have an adverse effect on human
health above certain levels. MCLs
are set as close as feasible to
MCLGs. Feasibility takes into
account both technology and cost
considerations.
Maximum Contaminant Level
Goals (MCLGs) are non-
enforceable health-based goals that
have been established at levels at
which no known or anticipated
adverse effects on the health of
persons occur and which will allow
an adequate margin of safety.
See NCP Preamble, 55 FR 8750-
8752.
Q4. What is the status of these regulations as
potential ARARs for CERCLA projects?
A. These regulations were promulgated on
January 30, 1991. The final MCLs and
-------
Highlight 2: Status of Potential TBCs, RARs, and ARARs
Number of Final/
Reproposed
MCLGs/MCLs
22 Final Non-Zero MCLGs
31 Final MCLs
2 Treatment Techniques
4 Reproposed Non-Zero
MCLGs
5 Reproposed MCLs
Potential To
Be Considered
(TBC)
(Not Pertinent)
(Not Pertinent)
(Not Pertinent)
1/31/91 -7/911
1/31/91 -7/911
Potential
Relevant and
Appropriate (RAR)
1/30/91 & Beyond
1/30/91 - 7/29/92
1/30/91 - 7/29/92
7/91 1 & Beyond
7/91 1 - 1/93'
Potential Applicable,
or Relevant and
Appropriate (ARAR)
Not Applicable
7/30/92 and Beyond
7/30/92 and Beyond
Not Applicable
1/931 and Beyond
1 Anticipated promulgation date
'Anticipated effective date
non-zero MCLGs for the 31 contaminants
became potential relevant and appropriate
requirements for all decision documents (i.e.,
Records of Decision (RODs) and Action
Memoranda) signed on or after January 30.
1991. Because of the delayed effective date,
the final MCLs for the 31 contaminants may
be relevant and appropriate, but not
applicable, for response actions carried out
during the interim period prior to the
effective date (i.e.. between January 30.1991
and July 29. 1992). In addition, the final
non-zero MCLGs may be relevant and
appropriate. For decision documents signed
on July 30. 1992 and beyond, the MCLs for
the 31 contaminants may be applicable or
relevant and appropriate to the cleanup of
ground water. See Highlight 2 for the status
of these regulations, outlining the critical
dates for final and reproposed MCLGs and
MCLs.
In contrast, the reproposed MCLs and
non-zero MCLGs for the 5 additional
contaminants are on a different regulatory
track. They became potential criteria "to be
considered" (TBCs) for all decision
documents signed after January 30.1991 and
up to promulgation (on July 1. 1991).
Because of the delayed effective date, for all
decision documents signed between the date
of promulgation (July 1. 1991) and the
effective date (expected in January 1993).
these MCLGs and MCLs may be relevant
and appropriate, but not applicable. On their
effective date (scheduled for January 1993)
and beyond, the MCLs for the 5 additional
contaminants may be applicable, or relevant
and appropriate.
Q5. Are treatment techniques for drinking
water contaminants in these regulations
potential ARARs for CERCLA cleanups?
A. Generally, no. These NPDWRs have
established treatment techniques for
acrylamide and epichlorohydrin. These
treatment techniques limit the amounts of
acrylamide and epichlorohydrin that drinking
water suppliers may add to treat
contaminated drinking water. Since
CERCLA projects generally do not supply
drinking water as part of response actions,
and often would be cleaning up contaminated
ground water through methods (e.g., air
stripping or natural attenuation) which do not
involve the addition of these substances to
treat contaminated ground water, these
treatment techniques generally would not be
relevant and appropriate requirements for the
treatment of acrylamide and epichlorohydrin
already found in the ground water.
However, if a CERCLA project is supplying
drinking water as part of the response action
and is adding these substances as part of the
treatment process, the treatment techniques
would be potential ARARs.
-------
Highlight 3: Jan. 30, 1991 National Primary Drinking Water Regulations
Inorganics
Asbestos
Barium
Cadmium
Chromium
Mecury
Nitrate
Nitrite
Total Nitrate and Nitrite
Selenium
Organics
o-Dichlorobenzene
cis-1, 2-Dichloroethylene
trans-1, 2-Dichloroethylene
1, 2-Dichloropropane
Ethylbenzene
Monochlorobenzene
Styrene
Tetrachloroethylene
Toluene
Xylenes (total)
Pestlcldes/PCBs
1/91
Final
MCLGs
7.0 MFL
0.005
0.1
0.002
10.0 (as N)
1.0 (as N)
10.0 (as N)
0.05
0.6
0.07
0.1
0
0.7
0.1
0.1
0
1.0
10.0
1/91
Final
MCLs
7.0 MFL
0.005
0.1
0.002
10.0 (as N)
1.0(asN)
10.0 (as N)
0.05
0.6
0.07
0.1
0.005
0.7
0.1
0.1
0.005
1.0
10.0
1/91 1/91
Reproposed Reproposed
MCLGs MCLs<
Alachlor
Aldicarb
Aldicarb sulfoxide
Aldicarb sulfone
Atrazine
Carbofuran
Chlordane
Dibromochloropropane (DBCP)
2, 4-D
Ethylene dibromide (EDB)
Heptachlor
Heptachlor epoxide
Lindane
Methoxychlor
Polychlorinated biphenyls
(PCBs) (as decachlorobiphenyl)
Pentachlorophenol
Toxaphene
2, 4, 5-TP (Silvex)
0
0.003
0.04
0
0
0.07
0
0
0
0.0002
0.04
0
0
0.05
0.002
0.001
0.001
0.001
0.003
0.04
0.002
0.0002
0.07
0.00005
0.0004
0.0002
0.0002
0.04
0.0005
0
0.003
0.05
0.003
0.004
0.002
0.001
-------
Q6. How will these regulations affect
CERCLA RODs that were signed prior to
January 30, 1991?
A. These MCLGs and MCLs should not affect
CERCLA RODs that were signed prior to
January 30, 1991. The NCP states that
ARARs "freeze" at the time of ROD
signature, and newly promulgated
requirements need only be met where
necessary for protectiveness. See section
300.430(f)(l)(ii)(B)(l) of the NCP, 55 FR
8850. This means that only requirements
which are promulgated (i.e., published as
final regulations) prior to the date of ROD
signature are potential ARARs for those
RODs. Since these SDWA requirements
were not promulgated until January 30,1991,
they would not be ARARs for RODS signed
before that date.
While these requirements would constitute
"newly promulgated requirements" for pre-
1/30/91 RODs, they are not expected to
require changes to existing RODs during the
five-year protectiveness review of the
remedy. These new SDWA requirements are
not replacing any MCLGs or MCLs that
were outside the CERCLA risk range, with
standards inside that risk range. Therefore,
they should not require any remedy revisions
to maintain protectiveness during the five-
year review. (See also NCP Preamble, 55
FR 8757.)
Q7. Are there other requirements in these
regulations that may be ARARs or TBCs
for CERCLA cleanups?
A. Yes. These regulations also contain
monitoring requirements which may be
ARARs when a CERCLA project supplies
drinking water to affected communities as
part of the response action. (See NCP
Preamble, 55 FR 8757.) The regulations
also contain administrative recordkeeping
and reporting requirements. Although such
requirements are neither ARARs nor TBCs,
the Regions are strongly encouraged to
consult with other agencies, as appropriate,
to ensure coordination. (See NCP Preamble,
55 FR 8757.)
Q8. Are there other proposed or promulgated
SDWA regulations that are potential
ARARs or TBCs for CERCLA actions?
A. Yes. On June 7, 1991, EPA promulgated
final MCLGs for lead and copper (see 56 FR
26461, June 7, 1991). Copper now has an
MCLG of 1.3 parts per million. This is a
potential relevant and appropriate
requirement for CERCLA ground and
surface water remediation. However, the
MCLG for lead was set at zero, which is not
considered to be an "appropriate" standard
for CERCLA cleanups. (See NCP Preamble,
55 FR 8751-8752.) This SDWA regulation
did not set any MCLs for either contaminant,
but it did set a treatment technique for lead
which is a potential ARAR. (Note: EPA is
planning to provide additional ARARs
guidance on lead in the near future.)
In addition, NPDWRs for 24 contaminants
were proposed on July 25, 1990 (see 55 FR
30370, July 25, 1990). From July 25, 1990
until their expected promulgation (expected
in March 1992), the MCLs and non-zero
MCLGs found in these proposed regulations
constitute TBCs for the cleanup of ground
water and may be considered for decision
documents signed during that period. See
Highlight 4 for a chart of the 24
contaminants and their corresponding
proposed MCLs and MCLGs.
This fact sheet does not address two other
SDWA regulations: Final, for 8 volatile
organic compounds, on July 8, 1987 (see 52
FR 25690), and, proposed, for the
radionuclides radon, uranuim, and radium, on
July 18, 1991 (see 56 FR 33050).
NOTICE: The policies set out in this fact
sheet are not final Agency action, but are
intended solely as guidance. They are not
intended, nor can they be relied upon, to
create any rights enforceable by any party in
litigation with the United States. Response
personnel may decide to follow the guidance
provided in this fact sheet, or to act at
variance with the guidance, based on an
analysis of site-specific circumstances. The
Agency reserves the right to change this
guidance at any time without public notice.
-------
Highlight 4: Proposed National Primary Drinking Water Regulations
TBCs until Promulgation Date (Expected in March 1992)
Inorganics
Antimony
Beryllium
Cyanide
Nickel
Sulfate
Thallium
Organlcs
Andipates
[Di(ethylhexyl)adipate]
Dalapon
Dichloromethane (methylene
chloride)
Dinoseb
Diguat
Endothall
Endrin
Glyphosate
Hexachlorobenzene
Hexachlorocyclopentadine
(HEX)
Oxamyl (Vydate)
PAHs [Benzo(a)pyrene]
Phthalates
[Di(ethylhexyl)phthalate]
Picloram
Simazine
1 ,2,4-Trichlorobenzene
1,1+2Trichlorethane
2,3,7,8-TCDD (Dioxin)
MCLGS
0.03
00.001
0.2
0.1
400/500
0.0005
0.5
0.2
0
0.007
0.02
0.1
0.002
0.7
0
0.05
0.02
0
0
0.5
0.001
0.009
0.003
0
MCLS
0.01/0.005
0.001
0.2
0.1
400/500
0.002/0.001
0.5
0.2
0.005
0.007
0.02
0.1
0.002
0.7
0.001
0.05
0.02
0.0002
0.004
0.5
0.001
0.009
0.005
5x10(-8)
-------
because FWQC recommended at zero are
ARARs, the three alternative values are TBCs.
not
Q9. What other factors should be considered in
determining whether FWQC are relevant and
appropriate requirements?
A. CERCLA requires that in determining whether a
FWQC constitutes a relevant and appropriate
requirement, EPA must consider the designated or
potential use of the surface or ground water, the
environmental media affected, the purposes for which
such criteria were developed, and the latest available
scientific information available (see CERCLA section
121(d)(2)(B)(i)). With regard to this last factor,
OWRS periodically publishes FWQC for additional
constituents and occasionally updates existing ones.
Prior to using an FWQC for a particular constituent,
RPMs should consult the IRIS data base maintained
by the EPA Office of Research and Development and
contact their Regional Water Office for the most
recent listing, to ensure consideration of the latest
available scientific information. See Attachment 1
for a list of the FWQC, current as of June 15, 1990.
[Note: the FWQC chart issued by the EPA Office
of Water Regulations and Standards, dated January
2,1987, is no longer current and should not be used
as a reference.]
NOTICE: The policies set out in this ARARs Q's and
A's are intended solely for guidance. They are not
intended, nor can they be relied upon, to create any
rights enforceable by any party in litigation with the
United States. EPA officials may decide to follow
the guidance provided in this Q's and A's, or to act
at variance with the guidance, based on an analysis
of specific site circumstances. The Agency also
reserves the right to change this guidance at any
time without public notice.
-------
ATTACHMENT 1
FEDERAL WATER QUALITY CRITERIA
A
(*) COMPOUND
1 Antinony
2 Arsenic
3 Beryl liui
4 Cadniui
5a Chromui (III)
b Chroma* (VI)
6 Copper
7 Lead
8 Mercury
9 Nickel
10 Seleniun
11 Silver
12 Thalliui
13 Zinc
14 Cyanide
15 Asbettos
16 2.3.7.8-TCOO (Dioxin)
17 Acrolein
18 Acrylonitrile
19 Benzene
20 BroMfora
21 Carbon Tetrachloride
22 Chlorobenzem
23 Chlorodibromethane
24 Chloroethane
25 2-Chloroethylvinyl Ether
26 Chlorofort
27 DichlorobroKMethane
28 1.1-Dicnloroethane
29 1.2-OichloroetbaBB
30 U-Oichloroethylen*
31 1.2-DichlornpropMi
32 l.3-Dichloropropfl«ae
33 Ethyl benzene
34 Methyl Brotuto
35 Methyl Chloride
36 Methylene Chloride
37 1.1.2.2-Tetrachloroethaiw
38 Tetrachloroethylene
39 Toluene
40 1.2-Trans-Oichloroethylene
41 1.1.1-Trichloroethan*
42 1.1.2-Trichloroethane
43 Trichloroethylene
44 Vinyl Chloride
CAS
Number
7440360
7440382
7440417
7440439
7440473
7440473
7440508
7439921
7439976
7440020
7782492
7440224
7440280
7440666
57125
1332214
1746016
107028
107131
71432
75252
56235
108907
124481
75003
110758
67663
75274
75343
107062
75354
78875
542756
100414
74839
74873
75092
79345
127184
108883
15660S
71556
79005
79016
75014
B
FRESHWATER
Criterion Criterion
Maxima Continuous
Cone. Cone.
(uq/L)
Bl 82
360 190
3.9 ** l.l
1700 ** 210 **
. 16 11
18 12 **
82 3.2 **
2.4 0.012
1400 * 160 **
20 5
4.1 *«
120 ** 110 *
22 5.2
C
SALTWATER
Criterion Criterion
MaxiMun Continuous
Cone. Cone.
(uq/L) (uq/L)
Cl C2
69 36
43 9.3
1100 50
2.9 2.9
220 8.5
2.1 0.025
75 8.3
300 71"
2.3
95 86
! 1
0
HUMAN HEALTH
(10"* risk for carcinogens)
For Consumption of:
Hater & Organists
Organ ISM Only
(uq/L) (uq/L)
01 02
14 * 4300 *
0.018 »t 0.14 *t
0.0076 t 0.131 t
10 170
33000 * 670000 *
170 * 3400 *
1300 *
50
0.14 0.15
510 3800 *
104 * 6800 *
91
2.0 * 7.2 *
700 * 215000 *
30000 fibers/L
0.000000013 t 0.000000014 t
320 780
0.059 ! 0.67 *t
1.2 ! 71 *t
5.7 «t 470 *t
0.25 *t 4.5 *t
488
5.7 *t 470 *t
0.032 *t 18 *t
5.70 *t 470 *t
5.70 *t 470 *t
0.38 *t 99 »t
0.057 *t 3.2 *t
10 * 1700
3100 29000
48 4000 *
5.7 *t 470 *t
4.7 *t 1600 »t
0.17 »t 11 *t
0.8 8.85
10000 * 300000
700 140000 *
3100 * 170000
0.60 *t 42 *t
2.7 t 81 t
2 t 525 t
-------
A
(») COMPOUND
45 2-Chlorophenol
46 2.4-Dichlorophenol
47 2.4-OiMthylphenol
48 2-Methyl-4.6-Dinitroph«nol
49 2.4-Oinitrophenol
50 2-Hitr-ophenol
51 4-Mitroph«nol
52 3-Methyl-4-Chloropnenol
53 Pentachlorophenol
54 Phenol
55 2.4.6-Trichlorophenol
56 Acenaphthene
57 Acenaphthylene
58 Anthracene
59 Benzidine
60 Benzo( a) Anthracene
61 Benzo(a)Pyrene
62 3.4-Benzofluoranthene
63 Benxo(ghi)Perylene
64 Benzo(k)Fluoranthene
65 Bis(2-Chloroethoxy)Methane
66 Bis(2-Chloroethyl)Bther
67 Bis(2-Chloroisopropyl)Ether
68 Bis(2-Ethylhexyl)Phthalate
69 4-Broiiophenyl Phenyl Ether
70 Butylbenzyl Phthalate
71 2-Chloronaphthalene
72 4-Chlorophenyl Phenyl Ether
73 Chrysene
74 D ibenz( a. h) Anthracene
75 1.2-Oichlorobenzene
76 1.3-Dichlorobenxew
77 1.4-Oichlorobenzene
73 3.3'-DichlorobenzidiM
79 Oiethyl Phthalate
30 Dinethyl Phthalatt
81 01-n-Butyl Phthalate
82 2.4-Dinitrotoluene
83 2.6-Oinitrotoluene
84 Di-n-Octyl Phthalate
35 1.2-Diphenylhydrazine
86 Fluoranthene
87- Fluorene
88 Hexachlorobenzene
89 Hexachlorobutadiene
CAS
Nuibcr
95578
120832
105679
534521
51285
88755
100027
59507
87865
108952
88062
83329
208968
120127
92875
56553
50328
205992
191242
207089
111911
111444
108601
117817
101553
85687
91587
7005723
218019
53703
95501
541731
106467
91941
84662
131113
84742
121142
606202
117840
122667
206440
86737
118741
87683
B
FRESHWATER
Criterion Criterion
Maxim* Continuous
Cone. Cone.
(uq/L) (ug/L)
Bl B2
20 «** 13 «**
'
C
SALTWATER
Criterion Criterion
Hajumin Continuous
Cone. Cone.
(uq/L)
Cl C2
13 7.9
0
HUMAN
(10" risk for
HEALTH
carcinogens)
For Consumption of:
Hater &
Organism
(uq/L)
01
120 *
93 *
13.4
70 *
1000 *
21 *
1.2 t
1200
0.0028 t
0.0028 t
0.00012 *t
0.0028 t
0.0028 t
0.0028 t
0.0028 t
0.0028 t
0.031 *t
1400 *
1.8 *t
3000 *
0.0028 t
0.0028 t
2700 *
400
400
0.04 4t
23000
313000
2700 *
_ 4
0.11 t
0.041 't
42
0.0028 t
0.00072 t
0.44 *t
OrqanisK
Only
(ug/L)
02
790
765
14000 «
29000 *
4600 *
3.6 t
2700 *
0.0311 t
0.0311 t
0.00054 *t
0.0311 t
0.0311 t
0.0311 t
0.0311 t
0.0311 t
1.4 *t
170000 *
5.9 *t
5200 *
0.0311 t
0.0311 t
17000 *
2600
2600
0.077 *t
120000 *
2900000
12000 *
... i
9.1 T
0.54 *t
54
0.031 t
0.00074 t
50 *t
-------
A
(*) COMPOUND
90 Hexachlorocyclopcntadiene
91 Hexachloroethane
92 Indeno(1.2.3-cd)Pyrene
93 Isophorone
94 Naphthalene
95 Nitrobenzene
96 N-Nitrosodinethylaiine
97 N-Nitrosodi-n-Propylamne
98 N-Nitrosodiphenylanne
99 Phenanthrene
100 Pyrene
101 1.2.4-Tnchlorobenzene
102 Aldrin
103 alpha-BBC
104 beta-BK
105 qawu-B8C
106 delta-BBC
107 Chlordane
108 4-4'-OOT
109 4.4'-DOE
110 4.4'-DOO
111 Dieldrin
112 alpha-Endosulfan
113 beta-Endosulfan
114 Endosulfan Sulfate
115 Endnn
116 Endnn Aldehyde
117 Heptachlor
118 Heptachlor Epoxide
119 PCB-1242
120 PCB-1254
121 PCB-1221
122 PCB-1232
123 PCB-1248
124 PCB-1260
125 PCB-1016
126 Toxaphene
CAS
Nuitber
77474
67721
193395
78591
91203
98953
62759
621647
86306
85018
129000
120821
309002
319846
319857
58899
319868
57749
50293
72559
72548
60571
959988
33213659
1031078
72208
7421934
76448
1024573
1336363
11097691
11104232
11141165
126722%
11096825
12674112
8001352
FRESH
Criterion
Maxiiui
Cone.
(uq/L)
Bl
.
3 t
2 t
2.4 t
1.1 t
2.5 t
0.22 I
0.22 1
0.18 1
0.52 t
0.52 t
0.73
B
HATER
Criterion
Continuous
Cone.
(uq/L)
B2
0.08 t
0.0043 t
0.001 t
0.0019 t
0.056 $
0.056 t
0.0023 t
0.0038 t
0.0038 t
0.014 I
0.014 t
0.014 t
0.014 t
0.014 t
0.014 t
0.014 1
0.0002
SALT
Criterion
Max i nun
Cone.
(uq/L)
Cl
1.3 t
0.16 t
0.09 t
0.13 t
0.71 t
0.034 t
0.034 t
0.037 t
0.053 t
0.053 t
0.21
C
HATER
Criterion
Continuous
Cone.
(uq/L)
C2
0.004 t
0.001 t
0.0019 t
0.0087 t
0.0087 t
0.0023 t
0.0036 t
0.0036 t
0.03 t
0.03 t
0.03 t
0.03 t
0.03 t
0.03 t
0.03 1
0.0002
D
HUMAN
(10* risk for
HEALTH
carcinoqens)
For Consumption of:
Hater &
Organists
(uq/L)
01
242
2.0 *t
0.0028 t
6900 *
17 *
0.00069 *t
0.005 *t
5.0 «t
0.0028 t
0.0028 t
0.00013 *t
0.0039 *t
0.014 *t
0.019 t
0.00058 *t
0.00059 *t
0.00059 *t
0.00083 *t
0.00014 *t
0.93 *
0.93 *
0.93 *
0.76
0.76 *
0.00021 *t
0.00010 *t
0.000044 *t
0.000044 *t
0.000044 *t
0.000044 «t
0.000044 *t
0.000044 *t
0.000044 *t
0.00073 *t
Organises
Only
(uq/L)
D2
17400 *
8.9 *t
0.0311 t
490000 *
1900 *
8.1 *t
8.5 *t
16 *t
0.0311 t
0.0311 t
0.00014 *t
0.013 *t
0.046 *t
0.063 t
0.00059 *t
0.00059 *t
0.00059 *t
0.00083 *t
0.00014 *t
2.0
2.0
2.0 *
0.81 *
0.81 *
0.00021 *t
0.00011 *t
0.000045 *t
0.000045 *t
0.000045 *t
0.000045 *t
0.000045 *t
0.000045 *t
0.000045 *t
0.00075 *t
-------
* Criteria revised to reflect current agency qt* or RfD. as contained in the Integrated Risk Information System (IRIS).
* Freshwater aquatic life criteria for these netals are expressed as a function of total hardness (mg/t). as follows
(where exp represents the base e exponential function). (Values displayed above correspond to a total hardness of
100 ng/l.)
CMC - exp{«.Iln(hardness)! « b,} CCC - exp{Bc!ln(hardness)l * t^}
"A DK l^ be
Cadmium 1.128 -3.828 0.7852 -3.490
Copper 0.9422 -1.464 0.8545 -1.465
Chromium (III) 0.8190 3.688 0.8190 1.561
Lead 1.273 -1.460 1.273 -4.705
Nickel 0.8460 3.3612 0.8460 1.1645
Silver 1.72 -6.52
Zinc 0.8473 0.8604 0.8473 0.7614
*** Freshwater aquatic life criteria for pentachlorophenol are expressed as a function of pH. and are calculated as
follows. (Values displayed above correspond to a pB of 7.8.)
CMC expd.OOS(pB) - 4.830) CCC - expd.OOS(pH) - 5.290)
t Criteria based on carcinoqenicity (10~* risk).
t Aquatic life criteria for these compounds were issued in 1980 utilizing the 1980 Guidelines for criteria development.
The acute values shown are final acute values (fav) and according to the 1980 Guidelines the Acute values were
intended to be interpreted as instantaneous naximum values, and the chronic values shown were interpreted as 24 - hour
average values. EPA has not updated these criteria pursuant to the 198S Guidelines. However, as an approximation.
dividing the final acute values in columns Bl and Cl by 2 yields a Criterion Maximum Concentration. No numeric
changes are required for columns B2 and C2. and EPA suggests using these values directly as Criterion Continuous
Concentration.
7ENEKAL NOTES:
1) This chart lists all of EPA's priority toxic pollutants whether or not criteria recommendations are available.. Blank
spaces indicate the absence of criteria recommendations.
'.) The following chemicals have organoleptic based criteria recommendations that are not included on this chart (for
reasons which are discussed in the preamble):
Copper 2.4-Dimethylphenol
Zinc 3-Nethyl-4-Chlorophenol
!) For purposes of this mlemaking. freshwater criteria apply at salinity levels equal to or less than 5 parts per
thousand (ppt>: saltwater criteria apply at salinity levels greater than 5 ppt (0/00).
i/15/90
------- |