CERCLA Compliance With Other Laws Manual on the CWA and SDWA With Provisions Relevant to Surface Water or Drinking Water


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 Slate 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 (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 wiih 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.
United States	Oil ice o!	Publication 9234.2-06/l-S
Environmental Protection	Solid Waste and
Agency	Emergency Response	February 1950
CERCLA Compliance With Other Laws Manual
wERfV CERCLA Compliance
with the CWA and SDWA
Office of Emergency and Remedial Response
Office of Program Management OS-240	Quick Reference Fact Sheet
I. Compliance With
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 Stale agency authorized by EPA to
administer an equivalent State program.
The Clean Water Act
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)(1);
•	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
•	Noneonventional 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

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121(e)(1). 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: CERCLA 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 from 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 fWQS) - 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;

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•	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.
B. 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 PRETREATMENT
STANliXRDS
•	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 no 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,

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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.
•	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 Rl/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.

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• Selection of Remedy/Record of Decision. To ensure
that ihc 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.
IS. 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 1, 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 I 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 bote, 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.
I. 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
watei at levels that violate MCLs or otherwise affect the
health of persons. While the UIC regulations expressly
reler 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 I well requires compliance with additional UIC
construction, operating, and monitoring requirements.
!i. i'he Resource and Conservation and Recovery
\
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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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