United States	Office of	Publication 9234.2-01/FS-A
Environmental Protection	Solid Waste and
Agency	Emergency Response	July 1991
&EPA 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 0S-240	Quick Reference Fact Sheet
Section 121(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. Gene
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 1).
"Applicability" is a legal and jurisdictional determination,
while the determination of "relevant and appropriate"
relies on professional judgment, considering 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.)
Policy
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 decontamination to health-based levels, or closure
with waste in place (landfill closure), which requires
impermeable caps and long-term maintenance.
However, if Subtitle C closure requirements are not
applicable, but are determined to 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 the
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 the CERCLA site that their use
is well suited to the particular site." [Section 300.5 of
the NCP, 55 FR at 8817] A requirement that is relevant and
appropriate may "miss" on one or more jurisdictional
prerequisites for applicability but still 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 requirement 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
Compliance With the CWA and SDWA. Publication
9234.2-06FS, February 1990, for additional discussion 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, including
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 appropriate, 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 potentially cumulative or
synergistic effects, to go beyond what ARARs require to
ensure that a remedy is protective. (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 constitutes
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 provision applies
only to on-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
environmental and facility siting laws only. Independent of
ARARs, on-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 environment. (See preamble to the NCP, 55 FR
at 8690-8691; Interim RCRA/CERCLA Guidance on
Noncontiguous 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
Preservation 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 recommended 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
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.
and Recovery Act (RCRA)
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)(1)
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
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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 requirements.
RCRA financial responsibility requirements 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 (LDRs). 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 O'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,
treatable 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?
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A. 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 attained (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.)
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-vear 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 10 6, 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. Therefore, 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, Januaiy 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.
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.
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