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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D C. 20460
MEMORANDUM
March 1, 2023
OFFICE OF
LAND AND EMERGENCY
MANAGEMENT
OLEM Directive 9234.0-07
SUBJECT: Documenting Applicable, or Relevant and Appropriate Requirements in
Comprehensive Environmental Response, Compensation, and Liability Act
Response Action Decisions
Digitally signed by LARRY
FROM: Larry Douchand, Director LARRY D0UCHAND ™2N3D03.0, i0:03:54 .05,0.
Office of Superfund Remediation and Technology Innovation
TO: Superfund National Program Managers, Regions 1-10
Purpose
This memo's purpose is to clarify existing U.S. Environmental Protection Agency (EPA)
guidance for documenting applicable, or relevant and appropriate requirements (ARARs) as
required under Section 121(d)(2)1 of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) for remedial actions. This memo and attachments
apply to remedial actions and should also be considered for non-time critical removal action
decisions. Regions are requested to consider these recommendations, which include
recommended practice tips and an ARARs table template, in documenting ARARs throughout
the response selection process, including when selecting the response action.2
Overall protection of human health and the environment and compliance with ARARs are
threshold requirements for any remedial action under CERCLA section 121(d) and the National
Oil and Hazardous Substances Pollution Contingency Plan (NCP).1 ARARs often help define
remedy protectiveness and are intended to ensure the response is performed in accordance with
1 CERCLA section 121(d)(2) specifies that remedial actions shall attain any standard, requirement, criteria, or
limitation under federal environmental law or any more stringent promulgated standard, requirement, criteria or
limitation under state environmental or facility siting law that is legally applicable to the hazardous substance (or
pollutant or contaminant) concerned or is relevant and appropriate under the circumstances of the release. See
also AO C.F.R. § 300.430(f)(l)(ii)(B) ("On-site remedial actions selected in a ROD must attain those ARARs that are
identified at the time of ROD signature or provide grounds for invoking a waiver under § 300.430(f)(l)(ii)(C).").
2 The policies and procedures set out in this document are intended solely for the guidance of Government
personnel. They are not intended, nor can they be relied upon, to create any rights, substantive or procedural,
enforceable by any party in litigation with the United States. The Agency reserves the right to act at variance with
these policies and procedures and to change them at any time without public notice.
3 See 40 C.F.R. § 300.430(f)(l)(i)(A) ["Threshold criteria. Overall protection of human health and the environment
and compliance with ARARs (unless a specific ARAR is waived) are threshold requirements that each alternative
must meet in order to be eligible for selection.").
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promulgated regulations or statutory provisions. In addition, ARARs frequently are determinant
in establishing preliminary remediation goals, which become site cleanup levels.4 Transparency
in documenting ARARs ensures the remedy selection process provides all stakeholders
(including potentially responsible parties (PRPs), states and the public) with sufficient
information to comment meaningfully on the response action. Such transparency also helps
ensure that the requirements to be met are fully understood for purposes of determining
compliance.
Background
The NCP and EPA policy embodied in the rule's preambles5 provide direction on ARARs6
identification, determination, and coordination with states, tribes, and other federal agencies.
However, neither the NCP nor its preambles provide specific detail on documenting ARARs in
response action documents. As a result, EPA regions have documented ARARs in varying ways.
In addition, some older remedy decision documents have only listed major environmental laws
and regulations without identifying the specific statutory and regulatory provisions that apply to
the selected remedy. This memo's recommendations for documenting ARARs with the requisite
specificity will improve consistency and transparency in the response action process.
In October 2017, EPA issued a memo titled "Best Practice Processes for Identifying and
Determining State Applicable or Relevant and Appropriate Requirements Status Pilot," (OLEM
Dir. 9200.2-187, Oct. 20, 2017). In this memo, which was developed in collaboration with state
attorneys, EPA outlines a useful approach through which EPA-state ARARs identification and
involvement under the NCP occurs early in the remedial process, thereby avoiding disputes late
in that process. This approach may also be a useful framework for tribes and other federal
facilities when identifying ARARs. While the 2017 memo focuses on identification of ARARs
and resolution of disputes, this memo focuses on how to improve the documentation of ARARs
throughout the response selection process.
4 See 40 C.F.R. § 300.430(e)(2)(i) ("Initially, preliminary remediation goals are developed based on readily available
information, such as chemical-specific ARARs or other reliable information ... Remediation goals shall establish
acceptable exposure levels that are protective of human health and the environment and shall be developed by
considering the following:(A) Applicable or relevant and appropriate requirements under federal environmental or
state environmental or facility siting laws, if available."). See also "Clarification of the Role of Applicable, or
Relevant and Appropriate Requirements in Establishing Preliminary Remediation Goals under CERCLA" (OSWER
No. 9200.4-23, August 22,1997).
5 See Proposed NCP rule at 53 FR 51394 (December 21,1988) and Final NCP rule at 55 FR 8666 (March 8,1990).
6 See 40 C.F.R. § 300.5 (Definitions). ("Applicable requirements" means those cleanup standards, standards of
control, and other substantive requirements, criteria, or limitations promulgated under federal environmental or
state environmental or facility siting laws that specifically address a hazardous substance, pollutant, contaminant,
remedial action, location, or other circumstance found at a CERCLA site. Only those state standards that are
identified by a state in a timely manner and that are more stringent than federal requirements may be applicable.
"Relevant and appropriate requirements" means those cleanup standards, standards of control, and other
substantive requirements, criteria or limitations promulgated under federal environmental or state environmental
or facility siting laws that, while not "applicable" to a hazardous substance, pollutant, contaminant, remedial
action, location, or other circumstance found at a CERCLA site, address problems or situations sufficiently similar to
those encountered at the CERCLA site that their use is well suited to the particular site. Only state standards that
are promulgated, are identified by the state in a timely manner, and are more stringent than federal requirements
may be relevant and appropriate.)
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Implementation
This document provides a template and recommended practice tips to assist EPA regions in
developing ARAR tables as part of a CERCLA response selection. This memorandum, including
the attachments, clarifies existing guidance to ensure CERCLA documents are consistent with
the NCP (including its preambles) and that ARAR information is transparent to stakeholders.
The existing guidance on determining and documenting ARARs remains in effect; however, the
example table in Highlight 6-34 in Chapter 6 of EPA's "A Guide to Preparing Superfund
Proposed Plans, Records of Decision, and Other Remedy Selection Documents" (July 1999
"1999 ROD Guidance") for documenting a selected remedy's ARARs does not provide an
appropriate level of specificity, such as inclusion of the exact citations to the specific statutory or
regulatory requirements as required by the NCP at 40 C.F.R. § 300.400(g)(5). As such, this
guidance supersedes the example table found in Highlight 6-34 of the 1999 ROD Guidance as
the recommended approach for documenting ARARs in decision documents.
Attachment A provides overarching recommendations for documenting ARARs. Attachment B
outlines a recommended table format for documenting the ARARs identified for remedial actions
under CERCLA section 121(d)(2). This information should be included in documents associated
with remedy selection, including Remedial Investigation (RI)/Feasibility Study (FS) reports, the
Record of Decision (ROD), and any ROD Amendments or Explanations of Significant
Differences (ESDs). This document also provides an overall perspective on the level of detail
needed to support and document ARARs; it also presents tips for developing the ARARs
table(s). The information and recommendations should also be considered when documenting
ARARs in the Engineering Evaluation /Cost Analysis (EE/CA) and an Action Memorandum for
non-time critical removal actions.
The recommended ARAR table template (Attachment B) provides for more detailed ARARs
documentation than the EPA OSWER Dir. 9234.1-01 "Compliance with Other Laws Manual,
Part I" (EPA/540/G-89/006, August 8,1988), Exhibitsl-1, 1-2 and 1-3, to ensure greater
consistency with the NCP and recent Agency response action decisions. The template, practice
tips and clarifications in these documents are intended to complement existing guidance and
ensure greater consistency when determining and documenting ARARs. This information will
also provide transparency during ARARs selection and will facilitate compliance with the
substantive requirements contained in ARARs as required by the NCP when implementing
Superfund response actions.
Cc: Attachments
cc: Barry Breen, OLEM
Carlton Waterhouse, OLEM
Lawrence Starfield, OECA
Greg Gervais, OLEM/FFRRO
Kathleen Salyer, OLEM/OEM
Cyndy Mackey, OECA/OSRE
Lorie Schmidt, OGC/SWERLO
Kathryn Caballero, OECA/FFEO
Federal Facilities Leadership Counsel
Office of Regional Counsels (Regions 1-10)
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OSRTI Managers
OSRE Managers
NARPM Co-Chairs
Superfund Division Branch Chiefs (Regions 1-10)
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Attachment A
Recommendations for Documenting
Applicable, or Relevant and Appropriate Requirements
in Comprehensive Environmental Response, Compensation and Liability Act Response
Action Decisions
I. Purpose
This attachment highlights considerations in existing EPA guidance and policies and also
provides recommended practice tips to assist regions in developing ARAR table(s) identified for
remedial actions under CERCLA section 121(d)(2).7 The information and recommendations
should also be considered when documenting ARARs in an Engineering Evaluation/Cost
Analysis (EE/CA) and an Action Memorandum for non-time critical removal actions. This
attachment also clarifies how to document ARARs to help ensure consistency with Agency
policy (as provided in the NCP preambles, guidance, and other relevant documents, etc.). The
NCP and Agency policy embodied in its preambles provide guidance on ARARs8 identification,
determinations, and coordination with states, but neither the NCP nor its preambles address the
specific level of detail needed to document ARARs. As a result, there have been variations
among the EPA regions when documenting ARARs. The document also provides recommended
practice tips to consider when evaluating what is or is not an ARAR in documents associated
with remedy selection. These remedy selection documents may include a Remedial Investigation
(RI)/Feasibility Study (FS) report, the Record of Decision (ROD), and any modifications made
through a ROD Amendment or Explanation of Significant Differences (ESD). The information
may also be useful when documenting ARARs in the EE/CA and Action Memorandum for non-
time critical removal actions.
The ARARs table(s) and supporting information in CERCLA decision documents and
supporting documentation should be transparent and thorough enough for all parties (including
potentially responsible parties (PRPs), states and the public) to understand. The
recommendations identified in this document supplement existing EPA CERCLA guidance
7 CERCLA Section 121(d)(2) specifies that remedial actions shall attain any standard, requirement, criteria, or
limitation under federal environmental law or any more stringent promulgated standard, requirement, criteria or
limitation under state environmental or facility siting law that is legally applicable to the hazardous substance or
pollutant or contaminant concerned or is relevant and appropriate under the circumstances of the release. See
also 40 C.F.R. § 300.430(f)(l)(i)(A).
8 See 40 C.F.R. § 300.5 (Definitions) ("Applicable requirements" means those cleanup standards, standards of
control, and other substantive requirements, criteria, or limitations promulgated under federal environmental or
state environmental or facility siting laws that specifically address a hazardous substance, pollutant, contaminant,
remedial action, location, or other circumstance found at a CERCLA site. Only those state standards that are
identified by a state in a timely manner and that are more stringent than federal requirements may be applicable.
"Relevant and appropriate requirements" means those cleanup standards, standards of control, and other
substantive requirements, criteria or limitations promulgated under federal environmental or state environmental
or facility siting laws that, while not "applicable" to a hazardous substance, pollutant, contaminant, remedial
action, location, or other circumstance found at a CERCLA site, address problems or situations sufficiently similar to
those encountered at the CERCLA site that their use is well suited to the particular site. Only state standards that
are promulgated, are identified by the state in a timely manner, and are more stringent than federal requirements
may be relevant and appropriate.).
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regarding the appropriate level of detail when documenting ARARs (e.g., EPA OSWER Dir.
9234.1-01 "Compliance with Other Laws Manual Part I" (EPA/540/G-89/006, August 8, 1988)
(e.g., Exhibits 1-1, 1-2 and 1-3, pages 1-16 through 1-54). However, the example table in
Chapter 6's "Highlight 6-34" found in EPA's "A Guide to Preparing Superfund Proposed Plans,
Records of Decision, and Other Remedy Selection Documents" (July 1999, "1999 ROD
Guidance") for documenting a selected remedy's ARARs does not provide an appropriate level
of specificity, such as inclusion of the exact citations to the specific statutory or regulatory
requirements as required by the NCP at 40 C.F.R. § 300.400(g)(5). As such, the example table
found in Highlight 6-34 of the 1999 ROD Guidance should not be followed.
II. Key Considerations in Identifying and Documenting ARARs
CERCLA requires that remedial actions comply with all requirements that are applicable or
relevant and appropriate. "Therefore, a remedial action has to comply with the most stringent
requirement that is ARAR to ensure that all ARARs are attained" absent a waiver.9 Per the NCP
at 40 C.F.R. § 300.400(g) "Identification of applicable or relevant and appropriate requirements,"
The lead agency and support agency shall identify their specific requirements that
are applicable or relevant and appropriate for a particular site. These agencies shall
notify each other, in a timely manner as described in § 300.515(d), of the
requirements they have determined to be applicable or relevant and appropriate.
When identifying a requirement as an ARAR, the lead agency and support agency
shall include a citation to the statute or regulation from which the requirement is
derived10 (Emphasis added.)
Consistent with CERCLA, the NCP, and relevant CERCLA guidance, the ROD and
modifications thereto are EPA-issued legal documents that demonstrate compliance with
statutory and regulatory obligations.11 In these documents, EPA should clearly describe and cite
to the specific ARAR provision to ensure that the public and PRPs (including federal agencies at
federal facility sites) can understand the requirements that must be complied with per CERCLA
section 121(d)(2) 12 The ROD, ROD Amendment or ESD must describe the federal and state
ARARs that the remedy will attain. In instances where the remedy will not meet an ARAR, the
9 55 Fed. Reg. 8741 (March 8,1990). This sentence in the preamble is EPA's response to one commenter who
argued that the remedial action should not necessarily have to attain the most stringent applicable or relevant and
appropriate requirement if a less stringent requirement provides adequate protection of human health and the
environment. EPA disagreed.
1040 C.F.R. § 300.400(g)(5).
11 Preamble to the Final NCP at 55 Fed. Reg. 8666 at p. 8730 (March 8,1990) ('The ROD is also a legal document
that, in conjunction with the supporting administrative record, demonstrates that the lead and support agency
decision-making has been carried out in accordance with statutory and regulatory requirements and that explains
the rationale by which remedies were selected."). In addition, see 42 U.S.C. § 9620(e)(4) which provides that a ROD
could be jointly issued by EPA and the affected federal agency at federal facility NPL sites. See also 40 C.F.R.
300.430(f)(4)(iii) ('The process for selection of a remedial action at a federal facility on the NPL, pursuant to
CERCLA section 120, shall entail: (A) Joint selection of remedial action by the head of the relevant department,
agency, or instrumentality and EPA; or (B) If mutual agreement on the remedy is not reached, selection of the
remedy is made by EPA.").
12 Preamble to the Proposed NCP at 53 Fed. Reg. 51394 at p. 51430 (Dec. 21,1988). See also "Guide to Preparing
Superfund Proposed Plans, Records of Decision, and Other Remedy Selection Decision Documents," EPA OSWER
9200.1-23P (July 1999), Section 6.1.1. (Purpose of ROD) at p. 6-1.
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decision document must describe the invoked waiver and the justification for its invocation.13
The FS report should reflect the same level of ARARs specificity to facilitate a meaningful
comparison of remedial alternatives and to provide a clear administrative record regarding how a
selected alternative in a proposed plan presented for public comment meets the ARARs criteria.
Thus, the FS report should identify ARARs for each alternative considered in the FS, not just the
selected alternative. In turn, only the ARARs table(s) for the selected alternative needs to be
incorporated into the ROD, ROD amendment or an ESD.14 As a result, some ARARs identified
for non-selected alternatives may not be needed for the selected remedy. Thus, the decision
document ARARs table(s) may differ from those included in the FS report (or EE/CA in the case
of a non-time critical removal action).
'Applicable' versus 'Relevant and Appropriate' Requirements
The lead agency determines ARARs based upon an analysis of which requirements are
applicable or relevant and appropriate to the distinctive set of circumstances and actions
contemplated at a specific site.15 "'Applicable requirements' are identified by a largely objective
comparison to the circumstances at the site; if there is a one-to-one correspondence between the
requirement and site circumstances, then the requirement is applicable."16 "Applicability"
implies that the remedial action or the circumstances at the site satisfy all of the jurisdictional
prerequisites of a requirement.17
There is little discretion involved in this determination. If a requirement is not
applicable, the decisionmaker uses best professional judgment to determine whether
the requirement addresses problems or situations that are generally pertinent to the
conditions at the site (i.e., the requirement is relevant) and whether the requirement
is well suited to the particular site (i.e., the requirement is appropriate).18
13 40 C.F.R. § 300.430(f)(5)(ii)(B) and (C). See 40 C.F.R. § 300.430(f)(l)(ii)(B) ("On-site remedial actions selected in a
ROD must attain those ARARs that are identified at the time of ROD signature or, if necessary, the ROD must
provide grounds for a waiver.")- See also EPA fact sheet "Overview of ARARs Focus on Waivers" (Pub.9234.2-03/FS
Dec. 1989).
14 53 Fed. Reg. 51438 (Dec. 21,1988) ("The decision on which alternative to select is made at the end of the
process and is based on the balancing of the selection of remedy criteria. ARARs will differ depending upon the
specific actions and objectives of each alternative being considered...").
15 55 Fed. Reg. 8741 (March 8,1990).
16 53 Fed. Reg. 51436-37 (Dec. 21,1988).
17 See EPAOSWER Dir. 9234.1-01, "CERCLA Compliance With Other Laws Manual Part l"(Aug. 8,1988), Section
1.2.2 Definitions of Applicable and Relevantand Appropriate., p. 1-10.
18 53 Fed. Reg. 51437 (Dec. 21,1988). See also 40 C.F.R. § 300.400(g)(2) ("If based upon paragraph (g)(1) of this
section, it is determined that a requirement is not applicable to a specific release, the requirement may still be
relevant and appropriate to the circumstances of the release.").
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Jurisdictional prerequisites19, while key in the applicability determination, are not the basis for
relevance and appropriateness.20 Pursuant to 40 C.F.R. § 300.400(g)(1):
The lead and support agencies shall identify requirements applicable to the release or
remedial action contemplated based upon an objective determination of whether the
requirement specifically addresses a hazardous substance, pollutant, contaminant,
remedial action, location, or other circumstance found at a CERCLA site.21
If, based upon paragraph (g)(1) of this section, it is determined that a requirement is
not applicable to a specific release, the requirement may still be relevant and
appropriate to the circumstances of the release. In evaluating relevance and
appropriateness, the factors in paragraphs (g)(2)(i) through (viii) of this section shall
be examined, where pertinent, to determine whether a requirement addresses
problems or situations sufficiently similar to the circumstances of the release or
remedial action contemplated, and whether the requirement is well-suited to the site,
and therefore is both relevant and appropriate. The pertinence of each of the
following factors will depend, in part, on whether a requirement addresses a
chemical, location, or action. The following comparisons shall be made, where
pertinent, to determine relevance and appropriateness: (i) the purpose of the
requirement and the purpose of the CERCLA action; (ii) the medium regulated or
affected by the requirement and the medium contaminated or affected at the
CERCLA site; (iii) the substances regulated by the requirement and the substances
found at the CERCLA site; (iv) the actions or activities regulated by the requirement
and the remedial action contemplated at the CERCLA site; (v) any variances,
waivers, or exemptions of the requirement and their availability for the
circumstances at the CERCLA site; (vi) the type of place regulated and the type of
place affected by the release or CERCLA action; (vii) the type and size of structure
or facility regulated and the type and size of structure or facility affected by the
release or contemplated by the CERCLA action; and (viii) any consideration of use
or potential use of affected resources in the requirement and the use or potential use
of the affected resources at the CERCLA site."22 (Emphasis added.)
Importantly, "EPA has discretion to determine whether any, all, or only a portion of a requirement
is relevant and appropriate, consistent with the factors set out in final rule § 300.400(g)(2);
however, once determined to be relevant and appropriate, all relevant and appropriate portions of
the requirement must be applied as though they were applicable (again, unless a waiver is
19 53 Fed. Reg. 51437 (Dec. 21,1988) ("Statutes and regulations are sometimes made up of discrete requirements,
each requirement having its own set of jurisdictional prerequisites. EPA has found that with these authorities often
only some requirements within a regulation are relevant and appropriate. In contrast with an applicable
requirement, flexibility exists to identify discrete 'appropriate' portions of a regulation which may be mixed with
'appropriate' portions of other regulations in a manner that makes good environmental sense for the site."). See
EPA OSWER Dir. 9234.1-01, "CERCLA Compliance With Other Laws Manual Part l"(Aug. 8,1988), Exhibit 1-6 ARAR
Jurisdictional Prerequisites., p. 1-63.
20 55 Fed. Reg. 8743 (March 8,1990).
2140 C. F. R. § 3400.400(g) ("Identification of applicable or relevant and appropriate requirements.").
2240 C.F.R. § 3400.400(g)(2).
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available)."23 Only those requirements that are determined to be both relevant and appropriate must
be complied with.24 A decision on whether a requirement is both relevant and appropriate is based
on the best professional judgment of the decision maker, taking into account the pertinent factors.25
More Stringent State ARARs
CERCLA section 121(d)(2)(A) provides that remedies must comply with any promulgated
standard, requirement, criteria or limitation (hereinafter referred to as a "standard" or
"requirement") under a state environmental or facility siting law that is more stringent than any
federal standard, requirement or limitation if applicable or relevant and appropriate to the
hazardous substance or release in question.26 In general, EPA considers state regulations under
federally authorized programs to be federal requirements.27 Where no federal ARAR exists for a
chemical, location or action, but a state ARAR does exist, or where a state ARAR is broader in
scope than the federal ARAR, the state ARAR generally is considered more stringent.28
For purposes of identification and notification of promulgated state standards, the term
"promulgated" means that the standards are of general applicability and are legally enforceable.29
"The phrase 'of general applicability' is meant to preclude consideration of state requirements
promulgated specifically for one or more CERCLA sites as potential ARARs."30 For a state
requirement to be a potential ARAR, it must be applicable to all remedial situations described in
the requirement, not just CERCLA sites.31 Per 40 C.F.R. § 300.400(g)(5): "When identifying a
requirement as an ARAR, the lead agency and support agency shall include a citation to the
statute or regulation from which the requirement is derived."32 Typically, only those state
standards that are identified by a state in a timely manner and that are more stringent than federal
23 55 Fed. Reg. 8726 (March 8,1990). Note, however, for those remedial actions that utilize and can justify an
ARAR waiver, the remedy "must also provide adequate protection of human health and the environment in order
to be eligible for selection as the remedy." Id.
24 53 Fed. Reg. 51436 (Dec. 21,1988).
25 55 Fed. Reg. 8743 (March 8,1990) (Preamble to final rule referencing preamble to the proposed rule
emphasized that a requirement must be both relevant and appropriate; this determination is based on "best
professional judgment." The preamble to the final rule further also provides that with respect to some statutes or
regulations, only some of the requirements may be relevant and appropriate to a particular site, while others may
not be.).
26 53 Fed. Reg. 51437 (Dec. 21,1988). See also 40 C.F.R. § 300.400(g)(4) ("Only state standards that are
promulgated, are identified by the state in a timely manner, and are more stringent than federal requirements
may be applicable or relevant and appropriate.").
27 55 Fed. Reg. 8742 (Mar. 8,1990).
28 53 Fed. Reg. 51435 (Dec. 21,1988).
29 Id. See also 40 C.F.R. § 300.400(g)(4) and EPA OSWER Pub. 9234.2-05/FS, "CERCLA Compliance with State
Requirements" (Dec. 1989).
30 5 3 Fed. Reg. 51438 (Dec. 21,1988) ("EPA believes that Congress did not intend CERCLA actions to comply with
requirements that would not also apply to other similar situations in that State.").
31 Id.
32 See 55 Fed. Reg. 8746 (Mar. 8,1990) ("EPA expects, however, that states will substantiate submissions of
potential ARARs by providing basic evidence of promulgation, such as a citation to a statute or regulation and,
where pertinent, a date of enactment, effective date, or description of scope. Because a citation is the minimum
needed to positively identify a requirement, EPA has added regulatory language requiring both lead and support
agencies to provide citations when identifying their ARARs.").
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requirements may be ARARs.33 In addition, a state standard(s) must be consistently applied or it
may be waived under CERCLA section 121(d)(4).34 For a state standard to be identified as a
chemical-specific ARAR and the basis for clean-up levels selected for a remedy, it must be more
stringent than any Federal ARAR standard. For example, some states have promulgated drinking
water standards or groundwater protection standards for certain chemicals that are more stringent
than the EPA's Safe Drinking Water Act Primary Drinking Water Standards maximum
contaminant levels (MCLs) for the same chemical.
Similarly, states have promulgated regulations to implement the Clean Water Act section 402
program. As recognized in the preamble to the final NCP:
For example, in the preamble to the proposed NCP, EPA cited the example of a state
antidegradation statute that prohibits the degradation of surface water below a level of
quality necessary to protect certain uses of the water body (53 FR 51438). If
promulgated, such a requirement is clearly directive in nature and intent. State regulations
that designate uses of a given waterbody and state water quality standards that establish
maximum in-stream concentrations to protect those uses define how the anti degradation
law will be implemented are, if promulgated, also potential ARARs.35
State advisories, guidance or other non-binding requirements, as well as standards that are not of
general applicability, will not be considered potential ARARs.36 In some cases, a promulgated
state requirement requires interpretation. The EPA Administrator has declared: "In the absence
of promulgated interpretative regulations or other promulgated, binding authority, EPA has
considerable latitude in determining how to apply an ambiguous state requirement."37
Substantive v. Administrative Requirement
State and federal requirements must be substantive in nature to qualify as ARARs. On-site38
portions of response actions need only comply with "substantive" aspects of ARARs rather than
33 Although this does not preclude EPA from coordinating with a State in the identification of applicable or relevant
and appropriate State ARARs. See 40 C.F.R. § 300.515(d) "(State involvement in the RI/FS process). When the state
and EPA have entered into a State Memorandum of Agreement ("SMOA"), the SMOA generally should address at
what points in the remedial process the lead and support agencies should engage and specify timeframes for
support agency input on ARARs. In the absence of a SMOA, the lead and support agencies shall discuss potential
ARARs/TBCs during the scoping of the RI/FS in accordance with 40 CFR 300.430(e)(9) and consult one another
throughout the remedy selection process to ensure ARARs/TBC are updated as needed.
3440 C.F.R. § 300.430(f)(l)(ii)(C)(5).
35 55 Fed. Reg. 8746 (March 8,1990).
36 53 Fed. Reg. 51437 (Dec. 21,1988).
37 Decision of Administrator Carol M. Browner, In the Matter of: Mather Air Force Base and George Air Force Base,
California, April 22,1993 at p. 4. See also, 55 Fed. Reg. 8746 (March 8,1990) ("Even if a state has not promulgated
implementing regulations, a general goal can be an ARAR if it meets the eligibility criteria for state
ARARs. However, EPA would have considerable latitude in determining how to comply with the goal in the absence
of implementing regulations. EPA may consider guidelines the state has developed related to the provision, as well
as state practices in applying the goal, but such guidance or documents would be TBCs, not ARARs.").
38 40 C.F.R. § 300.5, (Definitions) ("on-site" means "the areal extent of contamination and all suitable areas in very
close proximity to the contamination necessary for implementation of the response action.").
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any corresponding "administrative" requirements.39 In contrast, once remediation waste is
transferred off site, the action must comply with both the substantive and administrative aspects
of applicable requirements,40 including obtaining or complying with any required permits.41
Substantive requirements typically are those requirements that pertain directly to actions or
conditions in the environment. Examples of substantive requirements include quantitative health-
or risk-based restrictions upon exposure to types of hazardous substances (e.g., MCLs
establishing drinking water standards for particular contaminants), technology-based
requirements for actions taken upon hazardous substances (e.g., incinerator standards requiring
particular destruction and removal efficiency), and restrictions upon activities in certain special
locations (e.g., standards prohibiting certain types of facilities in floodplains).42
Administrative requirements typically are those mechanisms that facilitate the implementation
of the substantive requirements of a statute or regulation and include the approval of, or
consultation with, administrative bodies, issuance of permits, documentation, reporting,
recordkeeping and enforcement.43 Requirements which do not in and of themselves define a level
or standard of control are considered administrative.44 The determination of whether a
requirement is substantive or administrative need not be documented.45
III. ARARs Table Specificity
The ARARs for remedial alternatives (in the case of an FS) and for the selected remedy (in the
case of a ROD or other remedy decision document, such as a ROD Amendment or ESD)
generally should be listed in a table(s) that is consistent with CERCLA, the NCP and the relevant
EPA CERCLA guidance46 on ARARs documentation as well as the recommendations provided
herein.
In January 2012, the EPA Administrator issued a final decision resolving the Marshall Space
Flight Center (MSFC) Federal Facility Agreement dispute ("Marshall Decision"). The decision
addressed the requirement of specificity in identifying ARARs and determined that the ARARs
table in the Operable Unit-12 ROD (which was the subject of the dispute) contained the
39 42 U.S.C. § 9621(d)(2)(A) & (e)(1). See EPA OSWER Dir. 9234.1-01, CERCLA Compliance With Other Laws Manual
Part I (Aug. 8,1988), Executive Summary, Compliance with Substantive and Administrative Requirements at p. xvi.
40 However, off-site legal requirements are not considered ARARs.
41 As explained in the preamble to the proposed NCP (53 Fed. Reg. at p. 51443), the permit exemption in CERCLA
section 121(e)(1) was added to the statute in 1986 to "reflect Congress' judgment that CERCLA actions should not
be delayed by time-consuming and duplicative administrative requirements such as permitting, although the
remedies should achieve the substantive standards of applicable or relevant and appropriate laws." (emphasis
added). A "duplicative" administrative requirement is avoided by using the CERCLA remedy selection process (e.g.,
proposed plan supported by an RI/FS with adequate information documenting substantive compliance with ARARs
which allows for meaningful public participation) that serves as the functional equivalent for the permitting
process that would otherwise be used to establish discharge limits and other requirements.
42 CERCLA Compliance With Other Laws Manual Part I, supra.
43 See EPA OSWER Dir. 9234.1-01, CERCLA Compliance With Other Laws Manual Part I § 1.2.2. (Definitions of
Substantive and Administrative Requirements) at p. 1-11 (Aug. 8,1988).
44 53 Fed. Reg. 51443 (Dec. 21,1988).
45 Id.
46 EPA OSWER Dir. 9234.1-01, CERCLA Compliance With Other Laws Manual Part I and Part II (Aug. 8,1988 and
Aug. 1989).
11
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appropriate degree of specificity.47 The Marshall Decision also reiterated the Agency's policy in
the NCP that producing a laundry list of statutes and regulations that might be ARARs for a
particular site is not sufficient:
Furthermore, the language of CERCLA Section 121(d)(2)(A) makes clear, and program
expediency necessitates, that the specific requirements that are applicable or relevant and
appropriate to a particular site be identified. It is not sufficient to provide a general
"laundry" list of statutes and regulations that might be ARARs for a particular site. The
State, and EPA if it is the support agency, must provide a list of requirements with
specific citations to the section of law identified as a potential ARAR, and a brief
explanation of why the requirement is considered to be applicable or relevant and
appropriate to the site.48
In addition, the Administrator noted that the ARARs documentation in a ROD needs to have a
sufficient level of detail to inform the public and any PRP of the specific requirements for the
contemplated remedial activities to ensure compliance with the ARARs of the selected remedy.49
To Be Considered Category
Other information that does not meet the definition of ARAR may be necessary to determine
what is protective or may be useful in developing Superfund remedies.50 "To be considered"
(TBCs) are non-promulgated criteria, advisories, etc., that can be consulted along with and in
addition to ARARs.51
In addition to applicable or relevant and appropriate requirements, the lead and support
agencies may, as appropriate, identify other advisories, criteria, or guidance to be
considered for a particular release. The "to be considered" (TBC) category consists of
advisories, criteria, or guidance that were developed by EPA, other federal agencies, or
states that may be useful in developing CERCLA remedies.52
47 A copy of the 2012 EPA Administrator's decision on the Marshall dispute can be found at
httpsi//www.fedcenter.gov/Announcements/index.cfm?id=20465&pge prg id=39032&printable=l.The ARARs
table(s) in the Marshall OU-12 ROD provided the specific citation to the section of the law or regulation pertinent
to the response action; the legal prerequisite to the law/regulation applicability; a requirement summary; and a
description of the media being addressed, triggering action or location characteristic. This format is consistent
with the NCP and EPA's Compliance With Other Laws Manual Parts I and II (OSWER 540-G-89—006, Aug. 1988 and
1989).
48 Marshall Decision at p. 2 (quoting 55 Fed. Reg. 8746, (March 8,1990) and adding emphasis).
49 The Marshall Decision stated: "Providing specificity and detail in identifying and describing federal and state
ARARs ensures that there is an adequate level of transparency in the remedy selection process, meaningful and
knowledgeable opportunities for public participation throughout the process, and informed buy-in by potentially
responsible parties who are paying to clean up contaminated sites." Marshall Decision at p. 1.
50 53 Fed. Reg. 51436 (Dec. 21,1988).
51 Id. at 51435 (Dec. 21,1988). See also 55 Fed. Reg. 8745 (March 8,1990) ("TBCs may, however, be very useful in
helping to determine what is protective at a site, or how to carry out certain actions or requirements.").
52 40 C.F.R. § 300.400(g)(3). See also 40 CFR 300.430(b) ("Scoping.... Specifically, the lead agency shall... (9) Initiate
the identification of potential federal and state ARARs and, as appropriate, other criteria, advisories, or guidance to
be considered.").
12
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While the Marshall Decision was specific to documenting ARARs in a ROD at that site, the
basic framework is generally useful when identifying other non-promulgated criteria, advisories
or guidance(s) that may be TBCs53 for the response action and included in an ARARs table(s).
When identifying TBCs, the Agency has more discretion as there are no prescribed factors in the
NCP for evaluating such information. Best professional judgment generally should be used, and
the ROD ARARs/TBC tables generally should only identify those substantive portions of the
TBC that help inform or support the response action's protectiveness of human health and the
environment. For example, in identifying an EPA Drinking Water Health Advisory as a TBC, the
chemical and the associated concentration would typically be identified. In the case of more
lengthy technical guidance documents, such as "Final Covers on Hazardous Waste Landfills and
Surface Impoundments" (EPA 530 SW-89-047, July 1989), it may be appropriate to identify the
specific section(s) of the guidance providing the technical specifications the response action will
follow for capping waste in place. It may be appropriate to include the specific portions of TBCs
in an ARARs table with the recommended format or to identify them separately in the FS or
decision document (e.g., ROD, ROD Amendment or ESD). A laundry list of TBCs generally is
not helpful for understanding what aspects of the guidance should be considered for the selected
remedy and, as such, should be avoided.
Recommended Practice Tips
Below are some recommended practice tips to consider when making ARARs determinations
and documenting ARARs.
1. The ARARs table(s) should not be a laundry list of all regulations or statutes considered.
The table(s) should include only those regulations and statutes that are specific to the
scope of the response action, its location and the media it is addressing, although
additional ARARs may be included that apply to a contingency action identified in the
decision document.54 Note that ARARs included in an FS report (which address all the
remedial alternatives that were evaluated) may differ from those in the decision document
due, for example, to the specific circumstances of the selected remedy.
2. The ARARs included in the table should identify and cite the specific sections of the
regulation or statute that constitute ARARs. An entire chapter or section of a regulation
(e.g., 40 CFR Part 264) or a statute generally should not be cited.
3. The table(s) generally should not include citations to portions of the regulation or law that
include administrative requirements. Alternatively, a "NOTE" can be included below the
entire requirement in the table or as a footnote to clarify that the administrative portion of
53 See 53 Fed. Reg. 51436 and 51498-99 (Dec. 21,1988) ('The 'to be considered' (TBC) category consists of
advisories, criteria, or guidance that were developed by EPA, other Federal agencies, or States and that may be
useful in developing CERCLA remedies."). Examples include health advisories, reference doses, and EPA and state
technical guidance on how to perform specific response activity. Generally, only federal risk assessment guidance
documents are identified as TBCs since State risk assessment guidance documents may use risk assumptions (e.g.,
exposure periods or other factors) that are not consistent with federal risk guidance.
54 For instance, for a groundwater monitored natural attenuation (MNA) remedy, a pump and treat remedy may be
discussed in the ROD as a contingency in case the MNA remedy does not meet the required performance
standards. In that case, ARARs pertaining to a pump and treat remedy may be identified in the decision document.
13
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the regulation is not considered an ARAR or explain how it will be addressed under the
CERCLA process.
4. Regulatory standards that are only for aesthetic purposes55 generally do not constitute
ARARs, and should generally not be included in the ARARs table. For example,
secondary MCLs based on organoleptic concerns (taste, odor, color) alone generally are
not considered chemical-specific ARARs since they are not considered health-based
standards. Note that standards related to protection of certain locations or that require
actions be taken due to the location's special characteristics may qualify as location-
specific ARARs.56
5. Non-environmental regulations should not be included in the ARARs table (e.g.,
Occupational Safety and Health Administrative [OSHA] regulations, state building
codes) as these do not qualify as ARARs under CERCLA § 121(d)(2).57 Note that state
facility siting requirements or standards can be considered as location-specific ARARs
per CERCLA § 121(d)(2) depending on the site-specific circumstances.58
6. An Executive Order (EO) generally should not be included in the ARARs table. Instead,
EO compliance can be discussed under a ROD's protectiveness criterion (rather than the
ARARs criterion). In limited situations, an EO's substantive provisions may be identified
as TBC guidance, but an explanatory footnote should be provided as to an EO's directive
status.
7. A permit should not be identified as an ARAR since it is not typically promulgated and is
considered 'administrative' in nature.59 The substantive portion of the regulation on
which a permit condition might be based can potentially be an ARAR60, and substantive
provisions in a general permit may be TBC guidance provided they support remedy
protectiveness.
8. State ARAR entries generally should include citation(s) only to the section(s) of the state
regulation or statute that are more stringent than federal standards. [Note: A federal
regulation or statute generally would not be cited when there is no federal counterpart to
the state regulation/statute or when the state requirement is more stringent than the
federal requirement (See Subsection More Stringent State ARARs above).]
55 Note that EPA may however consider such standards as part of remedy implementation such as site restoration
activities for areas that were disturbed while conducting the remedy.
56 See Attachment B and CERCLA Compliance With Other Laws Manual Part I (Aug. 8,1988), Section 1.2.3.2
Location-Specific Requirements, p. 1-25.
57 See 40 C.F.R. § 300.150 Worker health and safety ("(a) Response actions under the NCP will comply with the
provisions for response action worker safety and health in 29 CFR 1910.120) ....(e) Requirements, standards, and
regulations of the OSH Act and of state OSH laws not directly referenced in paragraphs (a) through (d) of this
section, must be complied with where applicable. Federal OSH Act requirements include, among other things,
Construction Standards (29 CFR part 1926), General Industry Standards (29 CFR part 1910), and the general duty
requirement of section 5(a)(1) of the OSH Act (29 U.S.C. 654(a)(1)).").
58 See EPAOSWER Pub. 9234.2-05/FS, CERCLA Compliance with State Requirements (Dec. 1989).
59 See CERCLA Compliance With Other Laws Manual Part I § 1.2.2. (Definitions of Substantive and Administrative
Requirements) at p. 1-11, supra.
60 5 3 Fed Reg. 51394 at 51438 (Dec. 21,1988) ("Further, unless limitations found in site-specific State permits are
based on promulgated ARARs, such limitations will not be considered potential ARARs.").
14
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9. Where a state requirement extensively incorporates federal regulatory citations by
reference or where a state requirement is substantially the same as a federal one, the table
may include citations for both the state regulation and the federal regulation. [Note: This
recommendation facilitates the requirement's review since often there is familiarity with
the federal regulations, such as the Resource Conservation and Recovery Act (RCRA)
regulations, which might not be as clear when only the state regulation is referenced.]
10. Specific TBCs may be included in the ARARs table(s) but should be identified as TBC.
Generally, the specific portion(s) of a TBC that supports CERCLA remedy protectiveness
should be identified if the guidance includes other sections that do not pertain to the
remedy. Guidance and risk-based calculation tools that are not protective of human health
in accordance with CERCLA (e.g., 10"4 to 10"6 excess cancer risk, hazard index [HI] of 1,
etc.) should not be identified as TBC. Only those guidances or sections of guidances that
are actually used to develop either the remedy's cleanup standards or that provide
guidance on remedy implementation should be identified as TBCs.
15
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Attachment B:
Example Template for
Documenting Applicable, or Relevant and Appropriate Requirements
in Comprehensive Environmental Response, Compensation and Liability Act Response
Action Decisions
I. Recommended ARARs Table Format
To help ensure transparency and facilitate meaningful public participation opportunities in the
remedy selection process as well to help ensure that the response action requirements to be met
are fully understood by all parties (including PRPs, states and the public) for purposes of
compliance, the ARARs table(s) generally should provide the following specific information,
preferably in a table with separate columns:
• Description of the media addressed, triggering action or location characteristic.
• Requirement or summary of the requirement.
• Jurisdictional prerequisite to the regulation or statute's applicability along with
designation of whether the requirement is "applicable" or "relevant and appropriate."
• Exact citation to the specific requirement in a regulation or statute.
NOTE: For the To Be Considered ("TBC") category, the same information and format is
recommended, but the 'TBC' term is used instead of "applicable" or "relevant and
appropriate" and the name of the document (i.e., guidance) is provided in lieu of a
citation.
II. Practice Tips:
EPA has divided potential ARARs into three categories to facilitate their identification. These
categories; however, are not used to make specific ARARs determinations.
Chemical-specific ARARs are usually health- or risk-based numerical values or
methodologies used to determine the acceptable amount or concentrations of chemicals
that may remain in, or be discharged to, the ambient environment.61
Location-specific ARARs generally are restrictions placed upon the concentration of
hazardous substances or the conduct of activities solely because they are in special
6153 Fed. Reg. 51437 (Dec. 21,1988) and EPA Fact Sheet Overview of ARARs -Focus on ARAR Waivers, I. D. Types of
ARARs. Pub. 9234.203/FS (Dec. 1989).
16
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locations. Some examples of special locations include floodplains, wetlands, historic
places and sensitive ecosystems or habitats.62
Action-specific ARARs are usually technology- or activity-based requirements or
limitations on actions taken with respect to hazardous wastes, or requirements to conduct
certain actions to address particular circumstances at a site.63
The ARARs generally should be organized in table(s) under one of the following overarching
categories (although some requirements may not fall neatly into this classification scheme):
Chemical-, Location-, and Action-specific ARARs. Alternatively, a separate table for each
ARARs category generally can be included: Chemical-specific ARARs; Location-specific
ARARs; and Action-specific ARARs. [Note: Specific TBC guidance may also be included in the
table(s) but identified as TBC.]
It may be appropriate to separate each ARARs table by media (i.e., groundwater/soil/sediment)
in cases where the media are addressed separately in the FS/ROD. Within each set of tables there
may be sub-headers included to identify what media/area or action a specific ARAR addresses.
For example, within the Action-specific ARARs table, it may be appropriate to include sub-
sections on the installation and closure of monitoring wells, underground injection, landfill
closure/capping, waste characterization, waste treatment and disposal, control of air emissions,
etc.
Below is an example of an ARARs table excerpted from the B.F. Goodrich Superfund Site,
Calvert City, Marshall County, Kentucky, Record of Decision (February 2020), which includes
recommended columns for presenting the ARARs information with some example language and
sub-headers breaks within the table. These excerpts are not intended to capture all ARARs
related to a specific media, location, or action or a specific site.
Regions may include additional columns, including, for example, a column that briefly describes
the remedy action that will meet the substantive provision of an ARAR, or they may describe
this information in text of the decision document. Also attached is an example table identifying
Clean Air Act National Emission Standards for Hazardous Air Pollutants (NESHAP) regulations
under 40 C.F.R. Part 61 for control of asbestos emissions, which may be ARARs for certain
CERCLA response actions.
62 Id.
63 Id.
17
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1. Chemical-specific ARARs
Media/.\cl inn
I'lvivijiiisik-
Cilnlion
I'rolcction oj Surface II nltr Ounlily
Minimum criteria
applicable to all
surface waters
The water quality criteria for the protection of human health related to fish
consumption in Table 1 of Section 6 of this administrative regulation shall apply
to all surface water at the edge of the assigned mixing zones except for those
points where water is withdrawn for domestic water supply use.
(a) The criteria are established to protect human health regarding the
consumption of fish tissue and shall not be exceeded.
• For those substances associated with a cancer risk, an acceptable risk
level of not more than one (1) additional cancer case in a population of
1,000,000 people, or 1 x 10-6 shall be utilized to establish the
allowable concentration.
Presence of pollutants in surface waters of
the Commonwealth (including mixing
zones, with the exception that toxicity to
aquatic life in mixing zones shall be subject
to the provisions of 401 KAR 10:029,
Section 4) - relevant and appropriate
401 KAR 10:031 §
2(3)
Criteria for surface
water designated as
Warm Water Aquatic
Life Habitat
The allowable instream concentration of toxic substances, or whole effluents
containing toxic substances, which are noncumulative or non-persistent with a
half-life of less than 96 hours, shall not exceed:
a. 0.1 of the 96 hour median LC50 of representative indigenous or indicator
aquatic organisms; or
b. A chronic toxicity unit of 1.00 utilizing the 25 percent inhibition concentration,
orLC25.
Discharge of toxic pollutants to surface
waters of the Commonwealth designated as
Warm Water Aquatic Life Habitat -
applicable
401 KAR 10:031 §
4(1)0X1)
The allowable instream concentration of toxic substances, or whole effluents
containing toxic substances, which are bioaccumulative or persistent, including
pesticides, if not otherwise regulated, shall not exceed:
a. 0.01 of the 96 hour median LC50 of representative indigenous or indicator
aquatic organisms; or
b. A chronic toxicity unit of 1.00 utilizing the LC25.
401 KAR 10:031 §
4(1)0(2)
(b) Allowable instream concentrations for specific pollutants for the
protection of warm water aquatic habitat are listed in Table 1 of 401
KAR 10:031 § 6 shall not be exceeded.
Discharge of pollutants to surface waters of
the Commonwealth designated as Warm
Water Aquatic Life Habitat - applicable
401 KAR 10:031 §
4(1)0X5)
18
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Media/.\iiion
Pivivciuisik-
Cilaliiin
Remediation oj < onlniiiiiiiilcil (iroiuiihmter
Restoration of
groundwater (areas
located outside the
barrier wall)
Shall not exceed the Safe Drinking Water Act (SDWA) National Revised
Primary Drinking Water Regulations: maximum contaminant levels (MCLs) for
organic and synthetic contaminants specified in 40 C.F.R. 141.61(a) and (c).
• Vinyl chloride 2 ug/L
• Benzene 5 ug/L
• Carbon tetrachloride 5 ug/L
• 1,2-Dichloroethane (EDC) 5 ug/L
• Trichloroethylene (TCE) 5 ugJL
• 1,1-Dichloroethylene (DCE) 7 ugJL
• cis-l,2-Dichloroethylene (DCE) 70 ug/L
• Monochlorobenzene lOOwg/L
• Tetrachloroethylene (PCE) 5 ug/L
• 1,1,2-Trichloro-ethane (TCA) 5 ug/L
Restoration of groundwater classified as
Class IIA or Class IIB (which are an
existing or potential source of drinking
water) - relevant and appropriate
40 C.F.R. § 141.61(a)
and (c)
MCLs for organic
contaminants
401 KAR 8:250
Section 1
Shall not exceed the SDWA National Revised Primary Drinking Water
Regulations: maximum contaminant levels (MCLs) for inorganic contaminants
specified in 40 C.F.R. 141.62(b).
• Arsenic 10 ug/L
• Mercury 2 ug/L
Restoration of groundwater classified as
Class IIA or Class IIB (which are an
existing or potential source of drinking
water) - relevant and appropriate
40 C.F.R. § 141.62(b)
MCLs for inorganic
contaminants
401 KAR 8:250
Section 1
C.F.R. = Code of Federal Regulations
KAR = Kentucky Administrative Regulations
MCL = maximum contaminant levels
SDWA = Safe Drinking Water Act
19
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2. Location-specificARARs/TBC
l.iii'iiliun
Ki'(|iiimiU'iil
I'lvmiuisik-
Cilaliuii
II cll(iinl\
Presence of Wetlands
Shall take action to minimize the destruction, loss or degradation of w etlands
and to preserve and enhance beneficial values of wetlands.
Federal actions that involve potential
impacts to, or take place within, wetlands
- TBC
NOTE: Federal agencies required to
comply with E.O. 11990 requirements.
Executive Order 11990
Section 1(a) Protection
of Wetlands
Shall avoid undertaking construction located in wetlands unless:
(1) there is no practicable alternative to such construction, and
(2) that the proposed action includes all practicable measures to minimize
harm to wetlands which may result from such use.
Executive Order 11990,
Section 2(a) Protection
of Wetlands
Presence of Wetlands
(as defined in 44 C.F.R.
§9.4)
The Agency shall minimize64 the destruction, loss or degradation of wetlands.
The Agency shall preserve and enhance the natural and beneficial wetlands
values.
Federal actions affecting or affected by
Wetlands as defined in 44 C.F.R. § 9.4 —
applicable
44 C.F.R. § 9.11(b)(2)
and (b)(4)
Mitigation
The Agency shall minimize:
Potential adverse impact the action may have on wetland values.
44 C.F.R. § 9.11(c)(3)
Minimization provisions
lloodplaiiis
Presence of Floodplains
designated as such on a
map65
natural and beneficial values served by floodplains.
Federal actions that involve potential
impacts to, or take place within,
floodplains - TBC
NOTE: Federal agencies required to
comply with E.O. 11988 requirements.
Executive Order 11988
Section 1. Floodplain
Management
Shall consider alternatives to avoid, to the extent possible, adverse effects and
incompatible development in the floodplain. Design or modify its action in
order to minimize potential harm to or within the floodplain
Executive Order 11988
Section 2.(a)(2)
Floodplain
Management
64 "Minimize means to reduce to smallest amount or degree possible." 44 C.F.R. § 9.4 Definitions.
65 As provided in 44 C.F.R. § 9.7 Determination of proposed action's location, Paragraph (c), Floodplain determination, one generally should consult the FEMA Flood Insurance Rate
Map (FIRM), the Flood Boundary Floodway Map (FBFM) and the Flood Insurance Study (FIS) to determine if the Agency proposed action is within the base floodplain.
20
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l.iii'iiliun
Ki'(|iiimiU'iil
I'lvmiuisik-
Cilaliiin
Presence of Floodplains
designated as such on a
map
Where possible, an agency shall use natural systems, ecosystem processes, and
nature-based approaches when developing alternatives for consideration.
Federal actions that involve potential
impacts to, or take place within, floodplain
-TBC
NOTE: Federal agencies required to
comply with E.O. 13690 requirements.
Executive Order 13690
Section 2. (c)
. ii/iidlic licsoiirivs
I .ocation encompassing
aquatic ecosystem as
defined in 40 C.F.R. §
230.3(c)
Except as provided under section 404(b)(2), no discharge of dredged or fill
material is permitted if there is a practicable alternative that would have less
adverse impact on the aquatic ecosystem or if it will cause or contribute to
significant degradation of the waters of the United States.
Action that involves the discharge of
dredged or fill material into waters of the
United States, including jurisdictional
wetlands - relevant and appropriate.
40 C.F.R. § 230.10(a)
and (c)
Except as provided under section 404(b)(2), no discharge of dredged or fill
material shall be permitted unless appropriate and practicable steps have been
taken that will minimize potential adverse impacts of the discharge on the
aquatic ecosystem. 40 CFR § 230.70 et seq. identifies such possible steps.
40 C.F.R. § 230.10(d)
C.F.R. = Code of Federal Regulations
E.O. = Executive Order
TBC = To Be Considered
21
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3. Action-specific ARARs
Aiiiiin
I'lvivijiiisik-
Cilaliiin
Site /'reparation. < oiislriiclioii. ami l.xcavation
Activities causing
fugitive dust
emissions
No person shall cause, suffer, or allow any material to be handled, processed,
transported, or stored; a building or its appurtenances to be constructed, altered,
repaired, or demolished, or a road to be used without taking reasonable
precaution to prevent particulate matter from becoming airborne. Such
reasonable precautions shall include, when applicable, but not be limited to the
following:
• Use, where possible, of water or chemicals for control of dust in the
demolition of existing buildings or structures, construction operations, the
grading of roads or the clearing of land;
• Application and maintenance of asphalt, oil, water, or suitable chemicals on
roads, materials stockpiles, and other surfaces which can create airborne dusts;
• Covering, at all times when in motion, open bodied trucks transporting
materials likely to become airborne;
• The maintenance of paved roadways in a clean condition; and
• The prompt removal of earth or other material from a paved street which
earth or other material has been transported thereto by trucking or earth
moving equipment or erosion by water.
Fugitive emissions from land-disturbing
activities (e.g., handling, processing,
transporting or storing of any material,
demolition of structures, construction
operations, grading of roads, or the clearing
of land, etc.) - applicable
401 KAR 63:010 § 3(1)
and (l)(a), (b), (d), (e) and
(f)
II a.\te < liaracleri-alinn Primary II (isles (contaminated media am1 debris) am! Secondary II astes (u-asteu-aters. spent treatment media, etc.)
Characterization of
solid waste
Must determine if solid waste is excluded from regulation under 40 C.F.R. §
261.4.
Generation of solid waste as defined in 40
C.F.R. § 261.2 - applicable
40 C.F.R. § 262.11(a)
401 KAR 32:010 § 2
Must determine if waste is listed as a hazardous waste in Subpart D of
40 C.F.R. Part 261.
Generation of solid waste which is not
excluded under 40 C.F.R.§ 261.4 -
applicable
40 C.F.R. § 262.11(b)
401 KAR 32:010 § 2
Must determine whether the waste is (characteristic waste) identified in
subpart C of 40 C.F.R. part 261 by either:
(1) Testing the waste according to the methods set forth in subpart C of 40
C.F.R. part 261, or according to an equivalent method approved by the
Administrator under 40 C.F.R. §260.21; or
(2) Applying knowledge of the hazard characteristic of the waste in light of
the materials or the processes used.
Generation of solid waste that is not listed
in Subpart D of 40 C.F.R. Part 261 and not
excluded under 40 C.F.R.§ 261.4 -
applicable
40 C.F.R. § 262.11(c)
401 KAR 32:010 § 2
22
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Ai'liuii
Piviviiuisik-
Cilaliiin
Must refer to Parts 261,262, 264, 265, 266, 268, and 273 of Chapter 40 for
possible exclusions or restrictions pertaining to management of the specific
waste.
Generation of solid waste which is
determined to be hazardous waste -
applicable
40 C.F.R. § 262.11(d)
401 KAR 32:010 § 2
C.F.R. = Code of Federal Regulations
KAR = Kentucky Administrative Regulations
SDWA = Safe Drinking Water Act
4. Asbestos ARARs Table
Aiiiiin
Ki'(|iiimiU'iils
I'lvmiuisik-
('ilalinii(s)
(ii'inrtilSlamlarih Is/Wm Demolition. < olleclion. I'achaging and Disposal
Activities
potentially causing
asbestos emissions
Discharge no visible emissions to the outside air during the collection, processing
(including incineration), packaging and transporting of any asbestos-containing material
generated by the source, or use one of the emission control and waste treatment methods
specified in paragraphs (a)(1) through (4) of this section.
Owner or operator of any source covered
under the provisions of § 61.145 Standard
for demolition and renovation — applicable
40 C.F.R. §61.150(a)
Emission control
methods
Adequately wet asbestos-containing waste material as follows:
• Mix control device asbestos waste to form a slurry; adequately wet other
asbestos-containing waste material; and
• Discharge no visible emissions to the outside air from collection, mixing,
wetting, and handling operations, or use the methods specified by § 61.152 to
clean emissions containing particulate asbestos material before they escape to,
or are vented to, the outside air; and
• After wetting, seal all asbestos-containing waste material in leak-tight
containers while wet; or, for materials that will not fit into containers without
additional breaking, put materials into leak-tight wrapping; and
• Label the containers or wrapped materials specified in paragraph (a)(l )(iii) of
this section using warning labels specified by Occupational Safety and Health
Standards of the Department of Labor, Occupational Safety and Health
Administration (OSHA) under 29 CFR 1910.1001(j)(4) or 1926.1101(k)(8).
The labels shall be printed in letters of sufficient size and contrast so as to be
readily visible and legible.
• For asbestos-containing waste material to be transported off the facility site,
label containers or wrapped materials with the name of the waste generator
and the location at which the waste was generated.
Owner or operator of any source covered
under the provisions of § 61.145 Standard
for demolition and renovation — applicable
40 C.F.R. §
61.150(a)(l)(i)-(v)
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Emission control
for processing
Process asbestos-containing waste material into noiifriable forms as follows:
(i) Form all asbestos-containing waste material into nonfriable pellets or other
shapes;
(ii) Discharge no visible emissions to the outside air from collection and
processing operations, including incineration, or use other method specified in
§ 61.152 to clean emissions containing particulate asbestos material before
they escape to, or are vented, the outside air.
Owner or operator of any source covered
under the provisions of § 61.145 Standard
for demolition and renovation — applicable
40 C.l'.R. §
61.150(a)(2)(i)and
(ii)
Emission control
for asbestos-
containing waste
after demolition
Adequately wet the asbestos-containing waste material at all times after demolition and
keep wet during handling and loading for transport to a disposal site.
Asbestos-containing waste materials covered by this paragraph do not have to be sealed
in leak-tight containers or wrapping but may be transported and disposed of in bulk.
Facilities demolished where RACM (as
defined in 40 CFR §61.141),is not
removed prior to demolition according to
§61.145(c)(l)(i)-(iv) or for facilities
demolished according to § 61.145(c)(9)-
applicable
40 C.F.R. §
61.150(a)(3)
Disposal of
asbestos-containing
waste material
All asbestos-containing waste material shall be deposited as soon as practicable by the
waste generator at:
• A waste disposal site operated in accordance with the provisions of § 61.154,
or
• An EPA-approved site that converts RACM and asbestos-containing waste
material into nonasbestos (asbestos-free) material according to the provisions
of §61.155.
• The requirements of paragraph (b) of this section do not apply to Category I
nonfriable ACM that is not RACM.
Owner or operator of any source covered
under the provisions of § 61.145 Standard
for demolition and renovation — applicable
40 C.F.R. §
61.150(b)(l )-(3)
Pre-transport of
asbestos-containing
waste material
Mark vehicles used to transport asbestos-containing waste material during the loading
and unloading of waste so that the signs are visible.
The markings must conform to the requirements of § § 61.149(d)( 1 )(i), (ii), and (iii).
Owner or operator of any source covered
under the provisions of § 61.145 Standard
for demolition and renovation — applicable
40 C.F.R. §61.150(c)
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Slaniliinh Jor Ih-molilioii anil Renovation htivity
Inspection of
facility for asbestos
Prior to the commencement of the demolition or renovation, thoroughly inspect the
affected facility or part of the facility where the demolition or renovation operation will
occur for the presence of asbestos, including Category I and Category II nonfriable
ACM.
The requirements of paragraphs (b) and (c) of § 61.145 apply to each owner or operator
of a demolition or renovation activity, including the removal of RACM.
NOTE: The. Notification requirements of paragraph (b) of § 61.145 are considered
"administrative' and therefore not identified as ARARs. However, some of the
information included in the notice, for example a description of work to be
performed and methods to be employed, work practices and engineering controls
used to comply with the requirements of Subpart M, including asbestos removal and
waste-handling emission control procedures should be included in the CERCLA
decision document (e.g., ROD, Action Memorandum) and/or a subsequent Remedial
Action or Removal Action Work Plan.
Demolition or renovation of a facility
which may cause a disturbance of friable
asbestos material and exceed the thresholds
in 40 CFR 61.145(a)(1)- applicable
40 C.l'.R. § 61.145(a)
RACM Thresholds
In a facility being demolished, all the requirements of paragraphs (b) and (c) of § 61.145
apply, except as provided in paragraph (a) of § 61.145, if the combined amount of
RACM is
(i) At least 80 linear meters (260 linear feet) on pipes or at least 15 square meters
(160 square feet) on other facility components, or
(ii) At least 1 cubic meter (35 cubic feet) of facility components where the length
or area could not be measured previously.
NOTE: The. Notification requirements of paragraph (b) of § 61.145 are considered
"administrative' and therefore not identified as ARARs.
Demolition of a facility which may cause a
disturbance of friable asbestos material -
applicable
40 C.F.R. §
61.145(a)(1)
Requirements for
buildings
determined to be
structurally
unsound
Only the requirements of § 61.145(c)(4) through (c)(9) apply.
Facility being demolished under an order of
a State or local government agency, issued
because the facility is structurally unsound
and in danger of imminent collapse -
applicable
40 C.F.R. §
61.145(a)(3)
Adequately wet the portion of the facility that contains RACM during the wrecking
operation.
40 C.F.R. §
61.145(c)(9)
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Procedures lor
asbestos emission
control
Remove all RACM from a facility being demolished or renovated before any activity
begins that would break Lip, dislodge, or similarly disturb the material or preclude access
to the material for subsequent removal.
RACM need not be removed before demolition if:
(i) It is Category I nonfriable ACM that is not in poor condition and is not friable.
(ii) It is on a facility component that is encased in concrete or other similarly hard
material and is adequately wet whenever exposed during demolition; or
(iii) It was not accessible for testing and was, therefore, not discovered until after
demolition began and, as a result of the demolition, the material cannot be
safely removed. If not removed for safety reasons, the exposed RACM and
any asbestos-contaminated debris must be treated as asbestos-containing
waste material and adequately wet at all times until disposed of.
(iv) They are Category II nonfriable ACM and the probability is low that the
materials will become crumbled, pulverized, or reduced to powder during
demolition.
Demolition or renovation of a facility
which may cause a disturbance of friable
asbestos material and exceed the thresholds
in40 C.F.R. 61.145(a)(1)- applicable
40 C.l'.R. §
61.14d(cx1a1K1v)
Procedures for
asbestos emission
control con't
When a facility component that contains, is covered with, or is coated with RACM is
being taken out of the facility as a unit or in sections:
(i) Adequately wet all RACM exposed during cutting or disjoining operations;
and
(ii) Carefully lower each unit or section to the floor and to ground level, not
dropping, throwing, sliding, or otherwise damaging or disturbing the RACM.
Demolition or renovation of a facility
which may cause a disturbance of friable
asbestos material and exceed the thresholds
in40 C.F.R. 61.145(a)(1)- applicable
40 C.F.R. §
61.145(c)(2)
When RACM is stripped from a facility component while it remains in place in the
facility, adequately wet the RACM during the stripping operation.
40 C.F.R. §
61.145(c)(3)
Procedures for
asbestos emission
control con't
Component shall be stripped or contained in leak-tight wrapping, except as described in
§ 61.145(c)(5). If stripped, either:
(i) Adequately wet the RACM during stripping; or
(ii) Use a local exhaust ventilation and collection system designed and operated to
capture the particulate asbestos material produced by the stripping. The system
must exhibit no visible emissions to the outside air or be designed and
operated in accordance with the requirements in § 61.152.
A facility component covered with, coated
with RACM (as defined in 40 C.F.R. §
61.141), taken out of the facility as a unit or
in sections pursuant to 40 C.F.R. §
61.145(c)(2)- applicable
40 C.F.R. §
61.145(c)(4)(i)and
(ii)
The RACM is not required to be stripped if the following requirements are met:
(i) The component is removed, transported, stored, disposed of, or reused without
disturbing or damaging the RACM.
(ii) The component is encased in a leak-tight wrapping.
(iii) The leak-tight wrapping is labeled according to § 61.149(d)(l )(i), (ii), and (iii)
during all loading and unloading operations and during storage.
Large facility components such as reactor
vessels, large tanks, and steam generators,
but not beams containing RACM (as
defined in 40 C.F.R. § 61.141)-applicable
40 C.F.R. §
61.145(c)(5)(i)-(iii)
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Requirements tor
RACM (i.e.,
removed or
stripped)
For all RACM, including material that has been remov ed or stripped:
(i) Adequately wet the material and ensure that it remains wet until collected and
contained or treated in preparation for disposal in accordance with §61.150;
and
(ii) Carefully lower the material to the ground and floor, not dropping, throwing,
sliding, or otherwise damaging or disturbing the material.
(iii) Transport the material to the ground via leak-tight chutes or containers if it has
been removed or stripped more than 50 feet above ground level and was not
removed as units or in sections.
(iv) RACM contained in leak-tight wrapping that has been removed in accordance
with paragraphs (c)(4) and (c)(3)(i)(B)(5) of § 61.145 need not be wetted.
Generation of RACM (as defined in 40
C.F.R. § 61.141), from demolition or
renovation of a facility - applicable
40 C.F.R. §
61.145(c)(6)(i)-(iv)
Removal of RACM
in freezing
temperatures
The owner or operator need not comply with paragraph §61.145(c)(2)(i) and the wetting
provisions of § 61.145(c)(3).
Shall remove facility components containing, coated with, or covered with RACM as
units or in sections to the maximum extent possible.
NOTE: Under § 61.145(c)(7)(iii), must record the temperature in the area containing
the facility components at the beginning, middle and end of each workday and keep
daily temperature records available for inspection. Recordkeeping requirements are
generally considered "administrative' and therefore not identified as ARARs.
Removal of RACM (as defined in 40
C.F.R. § 61.141), when the temperature at
the point of wetting is below 0 °C (32 °F) -
applicable
40 C.F.R. §
61 ¦ 145(c)(7)(i)-(ii)
Burning of facility
containing asbestos
If a facility is demolished by intentional burning, all RACM including Category I and
Category II nonfriable ACM must be removed in accordance with the NESHAP before
burning.
Demolition of a facility which may cause a
disturbance of friable asbestos material and
exceed the thresholds in 40 C.F.R.
61.145(a)(1)- applicable
40 C.F.R. §
61.145(c)(10)
Capping l\bc\io\ II (isle Iii-I'lncc
Standards for
inactive asbestos
waste disposal sites
Must comply with one of the following:
• Either discharge no visible emissions to the outside air from an inactive disposal
site subject to this paragraph; or
• Cover the asbestos-containing waste material with at least 15 centimeters (6 inches)
of compacted non-asbestos-containing material, and grow and maintain a cover of
vegetation on the area to prevent exposure of the asbestos-containing waste
material; or
• Cover the asbestos-containing waste material with at least 60 centimeters (2 feet) of
compacted non-asbestos-containing material, and maintain it to prevent exposure
of the asbestos-containing waste
Closure of an area that receiv ed asbestos-
containing waste materials - relevant and
appropriate
40 C.F.R. §
61.151(a)(l )-(3)
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Warning signs lor
disposal site
Display w amiiig signs at all entrances and at intervals of 100m (328 feet) or less along
the property line of the site or along the perimeter of the sections of the site where
asbestos-containing waste material was deposited.
Closure of an area that receiv ed asbestos-
containing waste materials that does not
include a natural barrier to adequately deter
access by the general public - relevant and
appropriate
40 C.F.R. §
61.151(b)(1)
Warning signs for
disposal site con't
The warning signs must:
(i) Be posted in such a manner and location that a person can easily read the
legend; and
(ii) Conform to the requirements for (20"xl4") upright format signs specified in
29 C.F.R. 1910.145(d)(4) and this paragraph; and
(iii) Display the legend as prescribed in § 61.151 (b)( 1 )(iii) located in the lower
panel with letter sizes and styles of visibility at least equal to those specified in
§ 61.151 (b)( 1 )(iii).
Closure of an area that received asbestos-
containing waste materials that does not
include a natural barrier to adequately deter
access by the general public - relevant and
appropriate
40 C.F.R. §
61.151 (b)( 1 )(i)-(iii)
Fence for disposal
site
Fence the perimeter of the site in a manner adequate to deter access by the general
public.
40 C.F.R. §
61.151(b)(2)
Deed notice for
asbestos waste
disposal site
Record, in accordance with State law, a notation on the deed to the facility property and
on any other instrument that would normally be examined during a title search; this
notation will in perpetuity notify any potential purchaser of the property that:
• The land has been used for disposal of asbestos-containing waste material; and
• The survey plat and record of the location and quantity of asbestos containing waste
disposed of within the disposal site required in § 61.154(f) have been filed with the
Administrator; and
• The site is subject to 40 C.F.R. part 61, Subpart M.
NOTE: Recordation of deed notice that informs potential purchaser on the waste
disposal site is considered a substantive requirement for post-closure.
Closure of an inactive disposal area that
received asbestos containing waste
materials - relevant and appropriate
40 C.F.R. §
61.151(e)(l )-(3)
ACM = asbestos-containing material
ARAR = applicable or relevant and appropriate requirement
C.F.R. = Code of Federal Regulations
RACM = regulated asbestos-containing material
Subpart M = National Emission Standard for Asbestos located at 40 C.F.R. 61.140 et.seq.
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