United States Office of Emergency and EPA/540/G-89/006 

Environmental Protection Remedial Response August 1988 

Agency Washington DC 20460 

Superfund 

CERCLA Compliance with 

Other Laws Manual: 

Interim Final 

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EPA/540/G-89/006 

August 1988 

CERCLA COMPLIANCE WITH OTHER LAWS MANUAL 

DRAFT GUIDANCE 

August 8, 1988 

United States Environmental Protection Agency 

Office of Emergency and Remedial Response 

Washington, D. C. 20460 

^ 

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NOTICE 

Development of this document was funded, wholly or in part, by the United States 

Environmental Protection Agency under contract No. 68-01-7090 to ICF, Incorporated. 

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. 

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TABLE OF CONTENTS 

EXECUTIVE SUMMARY ................................ xi

1. GENERAL PROCEDURES FOR CERCLA COMPLIANCE WITH

OTHER STATUTES .............................. 1-1

1.0 INTRODUCTION ............................... 1-1

1.1 OVERVIEW OF REQUIREMENTS CONCERNING CERCLA COMPLIANCE 

WITH OTHER LAWS ............................. 1-2

1.2 GENERAL PROCEDURES FOR DETERMINING IF REQUIREMENT IS 

APPLICABLE OR RELEVANT AND APPROPRIATE (ARAR) .............. 1-5

COORDINATION BETWEEN CERCLA (SUPERFUND) AND OTHER PROGRAM

OFFICES ................................. 1-6

DIAGRAM OF CRITICAL POINTS FOR IDENTIFICATION AND

COMMUNICATION OF ARARs .......................... 1-7

1.2.1 WHERE AND WHEN ARARS SHOULD BE ATTAINED .............. 1-8

1.2.1.1 Requirements for Handling of InvestigationDerived Laboratory Wastes .................. 1-9

1.2.2 DEFINITIONS OF APPLICABLE AND RELEVANT AND

APPROPRIATE ............................ 1-10

1.2.2.1 Definitions of Substantive and Administrative

Requirements ......................... 1-11

1.2.3 TYPES OF ARARS .......................... 1-13

1.2.3.1 Chemical-Specific Requirements ................ 1-13

1.2.3.2 Location-Specific Requirements ............... 1-25

1.2.3.3 Action-Specific Requirements ................. 1-29

1.2.4 GENERAL PROCEDURE FOR IDENTIFICATION AND

ANALYSIS OF ARARS ......................... 1-55

1.2.4.1 Procedure for Identifying ARARs ............... 1-59

1.2.4.2 General Procedure for Determining if a

Requirement is Applicable .................. 1-60

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1.2.4.3 General Procedure for Determining if a

Requirement is Relevant and Appropriate ........... 1-65

1.3 CERCLA WAIVER CRITERIA FOR ARARS ..................... 1-71

1.4 OTHER CRITERIA OR GUIDELINES TO BE CONSIDERED .............. 1-76

1.5 DOCUMENTATION ............................... 1-78

2. GUIDANCE FOR CERCLA COMPLIANCE WITH RCRA ................. 2-1

2.0 INTRODUCTION ............................... 2-1

2.1 COORDINATION BETWEEN CERCLA (SUPERFUND) AND RCRA OFFICES ......... 2-2

2.2 OVERVIEW OF RESOURCE CONSERVATION AND RECOVERY ACT (RCRA) ........ 2-2

2.3 JURISDICTIONAL REQUIREMENTS FOR SUBTITLE C APPLICABILITY ......... 2-4

2.3.1. DEFINITION OF HAZARDOUS WASTE ................... 2-7

2.3.2 TREATMENT, STORAGE, AND DISPOSAL OF HAZARDOUS

WASTE ............................... 2-8

2.3.3 ADDITIONAL CONSIDERATIONS IN DETERMINING

SUBTITLE C ARARs ......................... 2-10

2.4 FEDERAL AND STATE RCRA REQUIREMENTS ................... 2-11

2.5 RCRA STORAGE REQUIREMENTS ........................ 2-12

2.6 RCRA TREATMENT REQUIREMENTS ....................... 2-14

2.7 RCRA REQUIREMENTS TRIGGERED BY DISPOSAL ................. 2-15

2.7.1 DESIGN AND OPERATING REQUIREMENTS TRIGGERED

BY DISPOSAL ............................ 2-18

2.7.2 CLOSURE REQUIREMENTS ....................... 2-19

2.7.3 SPECIAL RESTRICTIONS APPLICABLE TO LAND

DISPOSAL ............................. 2-21

2.7.4 CORRECTIVE ACTION AND GROUND-WATER PROTECTION

REQUIREMENTS ........................... 2-24

2.7.4.1 Ground-water Monitoring Requirements under

Subpart F .......................... 2-25

2.7.4.2 Ground-water Protection Standards under

Subpart F .......................... 2-25

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3. GUIDANCE FOR COMPLIANCE WITH CLEAN WATER ACT REQUIREMENTS ........ 3-1

3.0 INTRODUCTION ............................... 3-1

3.0.1 ON-SITE ACTIONS: COMPLIANCE WITH SUBSTANTIVE

REQUIREMENTS ........................... 3-2

3.0.2 OFF-SITE ACTIONS; COMPLIANCE WITH SUBSTANTIVE AND

ADMINISTRATIVE REQUIREMENTS .................... 3-2

3.1 OVERVIEW OF THE CLEAN WATER ACT ..................... 3-3

3.1.1 REGULATED SOURCES AND POLLUTANTS ................. 3-3

3.1.2 LIMITATIONS AND STANDARDS ..................... 3-4

3.2 GUIDANCE FOR COMPLIANCE WITH DIRECT DISCHARGE REQUIREMENTS ........ 3-6

3.2.1 TYPES OF DIRECT DISCHARGES .................... 3-6

3.2.2 OVERVIEW OF NPDES PERMITS ..................... 3-7

3.2.3 GUIDELINES FOR DETERMINING SUBSTANTIVE

REQUIREMENTS ........................... 3-7

3.2.3.1 Technology-Based Standards .................. 3-7

3.2.3.2 Water Quality Criteria .................... 3-9

3.2.3.3 Water Quality Standards ................... 3-11

3.2.3.4 Antidegradation Policy .................... 3-14

3.2.3.5 Requirements Regarding Water Quality

Standards Imposed by the 1987 Amendments to

the CWA ........................... 3-14

3.2.3.6 Ocean Discharge Standards .................. 3-15

3.2.3.7 Other Substantive Requirements ................ 3-17

3.2.4 COORDINATION BETWEEN CERCLA (SUPERFUND) AND WATER

OFFICES FOR ON-SITE ACTIONS .................... 3-18

3.2.5 ADMINISTRATIVE REQUIREMENTS OF THE NPDES PROGRAM ......... 3-20

3.3 GUIDANCE FOR COMPLIANCE WITH INDIRECT DISCHARGE

REQUIREMENTS ............................... 3-21

3.3.1 PRETREATMENT STANDARDS ...................... 3-21

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3.3.2 GUIDANCE FOR DETERMINING WHETHER TO DISCHARGE

CERCLA WASTEWATER TO A POTW .................... 3-23

3.3.3 POTW CONTROL MECHANISMS ...................... 3-27

3.4 COMPLIANCE WITH DREDGE AND FILL REQUIREMENTS ............... 3-28

3.4.1 DREDGE AND FILL ACTIVITIES .................... 3-28

3.4.2 AUTHORITIES FOR REGULATING DREDGE AND FILL

ACTIVITIES ............................ 3-28

3.4.3 THE ARMY CORPS OF ENGINEERS/EPA PERMIT PROGRAM .......... 3-29

3.4.4. SUBSTANTIVE REQUIREMENTS ..................... 3-30

3.4.4.1 Dredged and Fill Material Disposal Under CWA

Section 404 and Rivers and Harbors Act

Section 10 .......................... 3-30

3.4.4.2 Dredged Material Disposal under Section 103,

MPRSA ............................ 3-34

3.4.4.3 Dredged and Fill Material Disposal Under

40 CFR Part 6, Appendix ................... 3-35

3.4.5 COORDINATION BETWEEN SUPERFUND AND THE 404/

WETLANDS PROTECTION PROGRAM OFFICES OR OCEAN

DISPOSAL PROGRAM ......................... 3-35

4. GUIDANCE FOR COMPLIANCE WITH REQUIREMENTS OF THE SAFE

DRINKING WATER ACT ............................ 4-1

4.0 INTRODUCTION ............................... 4-1

4.1 OVERVIEW OF THE SAFE DRINKING WATER ACT ................. 4-1

4.2 SUMMARY OF SDWA ARARS FOR CERCLA ACTIONS ............... 4-2

4.2.1 DRINKING WATER STANDARDS ..................... 4-3

4.2.2 UNDERGROUND INJECTION CONTROL (UIC) PROGRAM ............ 4-9

4.2.2.1 Guidance for Determining Substantive

Requirements ......................... 4-12

4.2.2.2 Administrative Requirements of the UIC

Program ........................... 4-14

4.2.2.3 Coordination Between CERCLA Program and UIC

Office ............................ 4-14

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4.2.3 SOLE SOURCE AQUIFER (SSA) PROGRAM ................. 4-16

4.2.4 WELLHEAD PROTECTION PROGRAM .................... 4-17

5. GROUND WATER PROTECTION POLICIES ..................... 5-1

5.0 OVERVIEW OF THE GROUND-WATER PROTECTION STRATEGY ............. 5-1

5.1 OGWP GROUND-WATER CLASSIFICATION GUIDELINES ............... 5-1

5.2 SUPERFUND APPROACH TO GROUND-WATER PROTECTION .............. 5-2

HYPOTHETICAL SCENARIO FOR ILLUSTRATING HOW APPLICABLE OR

RELEVANT AND APPROPRIATE REQUIREMENTS ARE IDENTIFIED AND USED ......... H-1

SITE CONDITIONS ............................. H-1

IDENTIFICATION AND ANALYSIS OF CHEMICAL-SPECIFIC

REQUIREMENTS ............................... H-3

IDENTIFICATION AND ANALYSIS OF LOCATION-SPECIFIC

REQUIREMENTS ............................... H-7

IDENTIFICATION AND ANALYSIS OF ACTION-SPECIFIC

REQUIREMENTS ............................... H-7

APPENDIX - OVERVIEW OF MAJOR ENVIRONMENTAL STATUTES AND

REGULATIONS .................................. A-1

1. OVERVIEW OF RESOURCE CONSERVATION AND RECOVERY ACT ............ A-1

1.1 OFFICE OF SOLID WASTE .......................... A-1

1.2 OVERVIEW OF RCRA ............................. A-1

1.3 REGULATIONS PERTAINING TO HAZARDOUS WASTE ................ A-3

1.4 OTHER RCRA REGULATIONS .......................... A-12

2. OVERVIEW OF CLEAN WATER ACT AND THE WATER QUALITY ACT .......... A-13

2.1 OVERVIEW OF THE CWA ........................... A-13

2.2 CWA REQUIREMENTS PERTAINING TO CERCLA DISCHARGES ............. A-14

3. THE SAFE DRINKING WATER ACT ....................... A-17

3.1 OVERVIEW OF THE SDWA ........................... A-17

3.2 SDWA REGULATIONS PERTAINING TO CERCLA ACTIVITIES ........... A- 18

LIST OF ACRYONMS USED IN MANUAL

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TABLE OF EXHIBITS 

Exhibit Page 

Number Exhibit Number 

DIAGRAM OF CRITICAL POINTS FOR IDENTIFICATION

AND COMMUNICATION OF ARARs ........................ 1-7

1-1 SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR

RELEVANT AND APPROPRIATE REQUIREMENTS .................. 1-16

1-2 SELECTED LOCATION-SPECIFIC POTENTIAL APPLICABLE OR

RELEVANT AND APPROPRIATE REQUIREMENTS .................. 1-27

1-3 SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR

RELEVANT AND APPROPRIATE REQUIREMENTS .................. 1-31

1-4 PROCEDURE FOR IDENTIFYING ARARs ..................... 1-57

1-5 GENERAL PROCEDURE FOR DETERMINING IF REQUIREMENT IS

APPLICABLE ................................ 1-62

1-6 ARAR JURISDICTIONAL PREREQUISITES .................... 1-63

1-7 GENERAL PROCEDURE FOR DETERMINING IF REQUIREMENT IS

RELEVANT AND APPROPRIATE ......................... 1-66

1-8 GENERAL PROCEDURE FOR DETERMINING IF GUIDANCE OR

CRITERIA SHOULD BE CONSIDERED ...................... 1-77

1-9 UNIVERSE OF APPLICABLE OR RELEVANT AND APPROPRIATE

REQUIREMENTS ............................... 1-80

1-10 OTHER FEDERAL AND STATE CRITERIA, ADVISORIES, AND

GUIDANCE TO BE CONSIDERED ........................ 1-85

2-1 CERCLA ACTIONS CONSTITUTING DISPOSAL ................... 2-17

3-1 CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT

DOCUMENTS ................................ 3-36

4-1 PROPOSED MAXIMUM CONTAMINANT LEVEL GOALS (MCLGs) UNDER

THE SAFE DRINKING WATER ACT ....................... 4-4

4-2 LIST OF 83 CONTAMINANTS FOR WHICH MCLs MUST BE

PROMULGATED BY JUNE 1989 ......................... 4-6

4-3 SECONDARY MAXIMUM CONTAMINANT LEVELS (SMCLs) UNDER THE

SAFE DRINKING WATER ACT ......................... 4-7

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EXECUTIVE SUMMARY 

PURPOSE 

The CERCLA Compliance with Other Environmental Laws Manual has been developed 

to provide guidance to Remedial Project Managers (RPMs), State personnel at 

State-lead Superfund sites, On-Scene Coordinators (OSCs), and other persons 

responsible for planning response actions under §§104, 106, and 122 of the 

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The 

guidance is intended to assist in the selection of on-site remedial actions that 

meet the applicable, or relevant and appropriate requirements (ARARs) of the 

Resource Conservation and Recovery Act (RCRA), Clean Water Act (CWA), Safe Drinking 

Water Act (SDWA), Clean Air Act (CAA), and other Federal and State environmental 

laws, as required by CERCLA §§121.1 

The manual has been developed for use by lead or support agencies for remedial 

actions. The lead agency may be either EPA or a State. For timely identification and 

to ensure compliance with ARARs, it is important to provide for early and continuous 

coordination between lead and support agencies throughout the remedy selection 

process.2 

This manual will also be used by potentially responsible parties (PRPs) 

whenever they have the lead for identifying potential ARARs. In cases where 

potential ARARs are identified by the PRP, the actual ARARs will be decided by the 

lead agency. Further information concerning PRP involvement in the remedial 

investigation/feasibility study may be obtained from the “Interim Guidance on 

Potentially Responsible Party Participation in Remedial Investigations and 

Feasibility Studies.” (April, 1988, OSWER Directive 9835.1A) or from the lead 

agency. 

1 This volume covers requirements of RCRA, CWA, SDWA and ground-water 

protection policies. Another volume under development (Volume 3) will add 

requirements under the Clean Air Act and other environmental statutes. 

2 Specific EPA and State roles will be specified either in a Superfund 

Memorandum of Agreement (SMOA) or Cooperative Agreement (CA). The SMOA is a 

procedural agreement that outlines cooperative efforts between States and EPA 

Regions and defines the roles and responsibilities of each party in the conduct of a 

Superfund program in a State. For more information, see Draft Guidance on Preparing 

a Superfund Memorandum of Agreement (SMOA) (OSWER #9375.0-01). A Cooperative 

Agreement is a contractual agreement between the EPA and a State, in which the EPA 

provides money from the Fund to a State to conduct remedial action in compliance 

with the NCP. 

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SCOPE 

The requirements of §121 generally apply as a matter of law only to remedial 

actions. However, as a matter of policy, EPA will attain ARARs to the greatest 

extent practicable considering the exigencies of the situation at the site when 

carrying out removal actions. This manual may be used to assist OSCs in identifying 

potential ARARs for removal sites. 

CERCLA §121 also requires on-site remedial actions to attain promulgated State 

ARARs that are more stringent than Federal ARARS. Specific issues related to 

identifying State ARARs will be addressed in a separate chapter at a later date. 

Requirements for off-site actions are discussed to some extent in this manual. 

For a more detailed discussion of off-site requirements, the reader should consult 

“Revised Procedures for Planning and Implementing Off-Site Response Actions” (issued 

November 13, 1987, EPA Directive 9834.11). 

CERCLA defines situations in which the use of ARARs may be waived in 

particular circumstances. Waivers are described in this manual. Further guidance on 

the use of waivers may be added at a later date. 

The manual is intended to be used in conjunction with other EPA guidance 

documents, including the following: 

" Draft Guidance for Conducting Remedial Investigations and Feasibility 

Studies under CERCLA (May 1988, OSWER Directive 9335.3-01); 

" Superfund Public Health Evaluation Manual (October 1986, OSWER 

Directive 9285.4-1); 

" Draft Guidance on Preparing Superfund Decision Documents: The Proposed 

Plan and Record of Decision (March 1988, OSWER Directive 9355.3-02); 

" Draft Guidance the Administrative Record for SARA Response Actions 

(November 1986, OSWER Directive 9833.1A); 

" Interim Guidance on Potentially Responsible Party Participation in 

Remedial Investigations and Feasibility Studies (April 1988, OSWER 

Directive 9835.1A); and 

" Draft Guidance on Remedial Actions for Contaminated Ground Water at 

Superfund sites. (No date, OSWER Directive 9283.1-02). 

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Contents 

Chapters 1 and 2 of the manual discuss the overall procedures for identifying 

ARARs and provide guidance on the interpretation and analysis of RCRA requirements. 

Chapter 1 defines “applicable” and “relevant and appropriate,” provides matrices 

listing potential chemical-specific, location-specific, and action-specific 

requirements from RCRA, the Clean Water Act, and the Safe Drinking Water Act, and 

provides general procedures for identifying and analyzing requirements. Chapter 2 

discusses special issues of interpretation and analysis involving RCRA requirements, 

and provides guidance on when RCRA requirements will be ARARs for CERCLA remedial 

actions. Chapter 3 provides guidance for compliance with Clean Water Act substantive 

(for on-site and off-site actions) and administrative (for off-site actions) 

requirements for direct discharges, indirect discharges, and dredge and fill 

activities. Chapter 4 provides guidance for compliance with requirements of the Safe 

Drinking Water Act that may be applicable or relevant and appropriate to CERCLA 

sites. Chapter 5 provides guidance on consistency with policies for ground-water 

protection. The manual also contains a hypothetical scenario illustrating how 

applicable or relevant and appropriate requirements are identified and used, and an 

appendix summarizing the provisions of RCRA, the CWA and SDWA. 

KEY POINTS 

Definition of ARARs 

A requirement under other environmental laws may be either “applicable” 

or “relevant and appropriate,” but not both. Identification of ARARs must be done on 

a site-specific basis and involves a two-part analysis: first, a determination 

whether a given requirement is applicable; then, if it is not applicable, a 

determination whether it is nevertheless both relevant and appropriate. 

Applicable requirements are those cleanup standards, standards of control, and 

other substantive environmental protection requirements, criteria, or limitations 

promulgated under Federal or State law that specifically address a hazardous 

substance, pollutant, contaminant, remedial action, location, or other circumstance 

at a CERCLA site. 

Relevant and appropriate requirements are those cleanup standards, standards 

of control, and other substantive environmental protection requirements, criteria, 

or limitations promulgated under Federal or State law that, while not “applicable” 

to a hazardous substance, pollutant, contaminant, remedial action, location, or 

other circumstance 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. 

The determination that a requirement is relevant and appropriate is a two-step 

process: (1) determination if a requirement is relevant and (2) determination if a 

requirement is appropriate. In general, this involves 

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a comparison of a number of site-specific factors, including the characteristics of 

the remedial action, the hazardous substances present at the site, or the physical 

circumstances of the site, with those addressed in the statutory or regulatory 

requirement. In some cases, a requirement may be relevant, but not appropriate, 

given site-specific circumstances; such a requirement would not be ARAR for the 

site. In addition, there is more discretion in the determination of relevant and 

appropriate; it is possible for only part of a requirement to be considered relevant 

and appropriate in a given case. When the analysis results in a determination that a 

requirement is both relevant and appropriate, such a requirement must be complied 

with to the same degree as if it were applicable. 

To-be-Considered Material (TBCs) are non-promulgated advisories or guidance 

issued by Federal or State government that are not legally binding and do not have 

the status of potential ARARs. However, as described below, in many circumstances 

TBCs will be considered along with ARARs as part of the site risk assessment and may 

be used in determining the necessary level of cleanup for protection of health or 

the environment. 

Types of ARARs 

There are several different types of requirements that CERCLA actions may have 

to comply with. The classification of ARARs below was developed to provide guidance 

on how to identify and comply with ARARs; however, some requirements may not fall 

neatly into this classification system. 

" Ambient or chemical-specific requirements are usually health- or 

risk-based numerical values or methodologies which, when applied to 

site-specific conditions, result in the establishment of numerical 

values. These values establish the acceptable amount or concentration of 

a chemical that may be found in, or discharged to, the ambient 

environment. 

" Performance, design, or other action-specific requirements are usually 

technology- or activity-based requirements or limitations on actions 

taken with respect to hazardous wastes. 

" Location-specific requirements are restrictions placed on the 

concentration of hazardous substances or the conduct of activities solely 

because they occur in special locations. 

Developing Protective Remedies Using Risk Assessment, ARARs, and TBCs 

CERCLA §121 requires selection of a remedial action that is protective of 

human health and the environment. EPA’s approach to determining protectiveness 

involves risk assessment, considering both ARARs and to-be-considered materials 

(TBCs). The risk assessment includes consideration of site-specific factors such as 

types of hazardous substances present, potential for exposure, and presence of 

sensitive populations. Acceptable exposure levels are generally determined by 

applicable or relevant and appropriate 

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Federal and State environmental requirements, if available, and the following 

factors: (1) for systemic toxicants, concentration levels to which the human 

population (including sensitive subgroups) could be exposed on a daily basis without 

appreciable risk of significant adverse effects during a lifetime; (2) for known or 

suspected carcinogens, concentration levels that represent an excess upperbound 

lifetime cancer risk to an individual of between 10-4 and 10-7; (3) other factors 

related to exposure (such as multiple contaminants at a site or multiple exposure 

pathways) or to technical limitations (such as detection/quantification limits for 

contaminants). The Superfund Public Health Evaluation Manual provides guidance on 

determining acceptable levels.3 

ARARs will define the cleanup goals when they set an acceptable level with 

respect to site-specific factors. For example, MCLs under the Safe Drinking Water 

Act are normally acceptable levels for specific contaminants. However, cleanup goals 

for some substances may have to be based on non promulgated criteria and advisories 

(for example, health advisories such as reference doses (RfD)) rather than on ARARs 

because ARARs do not exist for those substances or because an ARAR alone would not 

be sufficiently protective in the given circumstances, e.g., where additive effects 

from several chemicals are involved. In these situations, the cleanup requirements, 

in order to meet the cleanup goals, will not be based on ARARs alone but also on 

TBCs. Similarly, State criteria, advisories, and guidance should also be considered 

for the State in which a site is located. 

Using ARARs 

Different ARARs that may apply to a site and its remedial action should be 

identified at multiple points in the remedy selection process. During the scoping of 

the RI/FS and the site characterization phase, the lists of potential ARARs in 

Exhibits 1-1, 1-2, and 1-9 and the appropriate Regional or State program office 

should be consulted to determine what ARARs may apply to the site. At this stage 

potential chemical- and location-specific ARARs should be identified. Exhibits 1-3 

and 1-9 and the appropriate Regional or State program office should be consulted in 

identifying action-specific ARARs for each proposed alternative during the 

development of remedial alternatives in the Feasibility Study. During the detailed 

design the technical specifications must ensure attainment of ARARs. 

When and Where Protectiveness Must Be Attained 

ARARs (and TBCs necessary for protection) must be attained for hazardous 

substances, pollutants, or contaminants remaining on-site at the completion of the 

remedial action, unless waiver of an ARAR is justified. In addition, EPA intends 

that the implementation of remedial actions should also comply with ARARs (and TBCs 

as appropriate) to protect public health and the environment. 

3 Superfund Public Health Evaluation Manual, OSWER Directive 9285.4-1,October, 

1986. 

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ARARs (and TBCs necessary for protection), pertaining both to contaminant 

levels and to performance or design standards, should generally be attained at all 

points of potential exposure, or at the point specified by the ARAR itself. CERCLA 

requires, to the maximum extent practicable, the use of permanent solutions and 

alternative treatment technologies. Any waste left in place should either be brought 

to health-based levels or managed according to performance or design specifications. 

At sites where a TBC value is used to set a protective level of cleanup or where the 

ARAR does not specify the point of compliance, there is discretion to determine 

where the requirement shall be attained to ensure protectiveness. At each potential 

point of exposure, a reasonable maximum exposure scenario should be assumed, and 

cleanup goals set accordingly to ensure protectiveness, using best professional 

judgment. Restrictions on use or access should not be a substitute for remediation 

to appropriate protective health-based or design levels. If active measures are not 

practicable (or cost-effective), exposure to the waste must be controlled through 

legally enforceable institutional means. “Non-engineered” or “exposure” controls may 

be used in certain circumstances in combination with “engineered” controls and/or 

treatment in the management and cleanup of the site where it is determined that such 

controls are necessary to be protective. In such circumstances, where exposure 

controls are used, restrictions should be employed to ensure that the controls 

remain in place, that they remain protective, and that they are effective in 

preventing exposure to hazardous substances for as long as the substances at the 

site remain hazardous. 

In ground water, cleanup goals should generally be attained throughout the 

contaminated plume, or at the edge of the waste management area when waste is left 

in place. However, if the waste is left on-site under a hybrid-type closure scenario 

(see p. 2-20 for discussion of hybrid closure), where the waste does not threaten 

ground water, the goal should be to reach health-based levels underneath the waste 

as well. 

In surface water, cleanup goals should generally be attained at the point or 

points where the release enters the surface water. In air, cleanup goals should 

generally be achieved at the maximum exposed individual, considering the reasonably 

expected uses of the site and surrounding area. For soils, cleanup goals should 

generally be attained wherever direct contact might reasonably occur. 

Compliance with Substantive and Administrative Requirements 

CERCLA §121(e) exempts any response action conducted entirely on-site from 

having to obtain a Federal, State, or local permit, where the action is carried out 

in compliance with §121. 

In general, on-site actions need comply only with the substantive aspects of 

ARARs, not with the corresponding administrative requirements. That is, permit 

applications and other administrative procedures, such as administrative reviews and 

reporting and recordkeeping requirements, are not considered ARARs for actions 

conducted entirely on-site. However, the 

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Feasibility Study, the Proposed Plan, the Record of Decision, the Community 

Relations Plan, and the Administrative Record should demonstrate full compliance 

with all substantive requirements that are ARARs, unless a waiver is used. 

Off-site actions must comply with all legally applicable requirements, both 

substantive and administrative. The concept of “relevant and appropriate” is not 

available for off-site actions. 

Coordination/Consultation With Other Federal and State Programs 

Sources of potential ARARs include other Federal environmental laws 

administered by EPA and authorized States and by other Federal agencies, and more 

stringent State environmental or facility siting laws. Therefore, to ensure that 

remedies comply with substantive aspects of identified ARARs, other Federal and 

State program offices should be consulted as appropriate, particularly for on-site 

actions where no permit will be obtained. 

RCRA Requirements 

Prerequisites for Applicability of RCRA Hazardous Waste Management Regulations 

RCRA requirements for treatment, storage, or disposal of hazardous wastes 

apply to a Superfund site if the site contains RCRA listed or characteristic 

hazardous waste that was treated or disposed of after the effective date of the RCRA 

regulations that are under consideration as potential ARARs for the site, or if the 

CERCLA activity at the site constitutes current treatment, storage, or disposal of 

RCRA hazardous waste. In some cases, it may not be possible to determine whether a 

CERCLA hazardous substance at a site is a hazardous waste under RCRA, or whether it 

was disposed at the site after the effective date; these prerequisites should not be 

assumed. In such cases, RCRA requirements will not be applicable, but may 

nevertheless be relevant and appropriate, if the CERCLA action involves treatment, 

storage, or disposal and if the wastes are similar or identical to RCRA hazardous 

waste. 

Definition of Disposal 

EPA has concluded that moving RCRA hazardous waste (including hazardous 

waste that was originally disposed before the requirements’ effective date) 

constitutes land disposal when that waste is placed into a land disposal unit. At 

CERCLA sites, there are areas of contamination with differing levels of 

concentration of hazardous substances, pollutants, or contaminants. In such cases, 

when RCRA hazardous waste is moved into an area of contamination, RCRA disposal 

requirements (such as for closure) are applicable to the area where the waste is 

received. In addition, EPA has determined that disposal and placement are synonymous 

for purposes of determining the applicability of the land disposal restrictions 

under RCRA. 

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Corrective Action 

RCRA contains several authorities under which corrective action requirements 

will be promulgated.4 Because of the similarity of corrective action under RCRA to 

CERCLA cleanup, these requirements are likely to be applicable or relevant and 

appropriate in many remedial action situations. This manual will be updated to 

include RCRA corrective action requirements and their bearing on CERCLA remedial 

activities. 

Ground-water Protection 

RCRA currently contains ground-water monitoring and protection standards. In 

general, EPA will use MCLs as protection levels for ground water that is currently 

or potentially used for drinking. The Agency may establish site-specific 

exposure-based ACLs at particular sites where the ground water cannot be used for 

drinking because of high salinity or naturally occurring widespread contamination, 

or where cleanup is not practicable or cost-effective and where the circumstances 

fulfill the conditions of CERCLA §121(d)(B)(ii). 

The Superfund Program’s goal is to restore ground water to its beneficial uses 

based in large part on their vulnerability, use, and value. The Ground-Water 

Protection Strategy and draft Office of Ground-Water Protection Classification 

Guidelines serve as useful guidance. The program uses the classification scheme on a 

site-specific basis to assist in the characterization of a ground water’s 

vulnerability, use, and value. Ground-water classifications performed at Superfund 

sites are limited in scope to the Superfund action that will be taken and do not 

apply to the geographical area in general. More stringent promulgated State 

requirements will be used as standards when they exist. Additional guidance on Clean 

Water Act, Safe Drinking Water Act, and other water-related requirements is 

presented in Chapters 3, 4, and 5 of this manual. 

Clean Water Act Requirements 

Direct Discharge to Surface Waters 

Both on-site and off-site direct discharges from CERCLA sites to surface 

waters are required to meet the substantive requirements of the National Pollutant 

Discharge Elimination System (NPDES) program. These substantive requirements include 

discharge limitations (both technology and water quality based), certain monitoring 

requirements, and best management practices. These requirements will be contained in 

an NPDES permit for off-site CERCLA 

4 Corrective action requirements for regulated units have been 

promulgated in 40 CFR Part 264, Subpart F. Additional requirements for 

corrective action for solid waste management units (SWMUs) at RCRA facilities 

seeking permits are currently being developed for promulgation in 40 CFR Part 

264 Subpart S. 

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discharges. For on-site direct discharges from a CERCLA site, these substantive 

requirements must be identified and complied with even though on-site discharges are 

not required to have an NPDES permit. For purposes of this guidance, a direct 

discharge of CERCLA wastewaters would be “on-site” if the receiving water body is in 

the area of contamination or is in very close proximity to the site and necessary 

for implementation of the response action (even if the water body flows off-site). 

Indirect Discharge to POTWs 

In general, the discharge of CERCLA wastewaters to publicly owned treatment 

works (POTWs) is considered an off-site activity. Therefore, CERCLA responses 

required to comply with all applicable (both substantive and administrative) 

requirements of the national pretreatment program including the general and specific 

discharge prohibitions. Further, all local pretreatment regulations must be complied 

with before discharging wastewater to a POTW. These local pretreatment regulations 

include local discharge limitations and prohibitions. When considering discharge of 

CERCLA wastewater to a POTW, the POTW’s record of compliance with the NPDES permit 

and pretreatment program requirements should be assessed. 

Discharge of Dredged or Fill Material 

Under CERCLA §121(e), no Federal, State, or local permit is required for 

response actions conducted entirely on-site; however, consultation with the Corps 

remains important in developing the CERCLA response. Under the CWA §404 guidelines, 

no discharge of dredged or fill material will be allowed unless appropriate and 

practicable steps are taken that minimize potential adverse impacts of the discharge 

on the aquatic ecosystem. 

Safe Drinking Water Act Requirements 

Use of MCLs 

For cleaning up ground water or surface water that is or may be used for 

drinking, the Maximum Contaminant Levels (MCLs) set under the Safe Drinking Water 

Act are generally the applicable or relevant and appropriate standard. MCLs are 

applicable where the water will be provided directly to 25 or more people or will be 

supplied to 15 or more service connections. When MCLs are applicable they should at 

least be met at the tap. MCLs are relevant and appropriate in other cases where 

surface water or ground water is or may be directly used for drinking water, and in 

such cases, the MCLs should be met in the surface water or groundwater itself. 

Use of MCLGs 

A standard for drinking water more stringent than an MCL may be needed in 

special circumstances, such as where multiple contaminants in groundwater or 

multiple pathways of exposure present extraordinary risks (i.e., individual lifetime 

cancer risk above 10-4). In setting a level more stringent than the 

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MCL in such cases, a site-specific determination should be made by considering 

Maximum Contaminant Level Goals (MCLGs), the Agency’s policy on the use of 

appropriate risk ranges for carcinogens, levels of quantification, and other 

pertinent guidelines. Prior consultation with Headquarters contacts in the Office of 

Emergency and Remedial Response or the Office of Waste Programs Enforcement, as 

appropriate, is encouraged in such cases. 

Underground Injection Control Program 

CERCLA sites where underground injection wells are constructed on-site are not 

required to comply with the administrative requirements of the UIC program. However, 

they must meet the substantive requirements that are determined to be applicable or 

relevant and appropriate to the CERCLA remedial action. Examples of substantive UIC 

program requirements include RCRA manifest and corrective action requirements for 

the underground injection of hazardous wastes, well construction requirements, well 

operating requirements, and well closure requirements. Other information should also 

be reported to the Region UIC program regarding the operation of an injection well. 

(This information in described in Chapter 4). 

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CHAPTER 1 

GENERAL PROCEDURES FOR CERCLA COMPLIANCE WITH OTHER STATUTES 

1.0 INTRODUCTION 

This chapter describes general procedures for Superfund compliance with 

applicable or relevant and appropriate requirements (ARARs) of other environmental 

and public health statutes when conducting remedial actions. Currently, the most 

important requirements for compliance are set by the Comprehensive Environmental 

Response, Compensation, and Liability Act of 1980 (CERCLA) itself, as amended by the 

Superfund Amendments and Reauthorization Act of 1986 (SARA), particularly §121. The 

current National Contingency Plan (NCP)1 and the “Memorandum on CERCLA Compliance 

with Other Environmental Laws” (the Compliance Policy), which was published as an 

appendix to the November 1985 NCP Preamble, remain in effect regarding cleanup 

standards except when superceded by the new CERCLA requirements. However, because 

the NCP is being revised, it is generally not described in this chapter, which is 

organized as follows: 

Section 1.1 provides an overview of the statutory requirements concerning 

CERCLA compliance with other laws. 

Section 1.2 describes general procedures for identifying particular 

requirements in other laws that may be applicable or relevant and appropriate 

requirements (ARARs) for a CERCLA remedial action. In order to facilitate 

identification of ARARs, Section 1.2 provides matrices of chemical-specific, 

location-specific, and action-specific potential ARARs from several different 

laws. Finally, Section 1.2 provides a procedure for analyzing the probable 

ARARs to determine whether they are, in fact, applicable or relevant and 

appropriate requirements for the particular site in question. 

Section 1.3 provides a short description of the situations listed in CERCLA 

that may justify waiving particular requirements that have been determined to 

be ARARs. More detailed guidance on waivers will be provided at a later date. 

Section 1.4 describes how materials that are not potential ARARs, but which do 

provide useful guidance or information, should be considered, analyzed, and 

used. 

Section 1.5 provides guidance on documenting the consideration of ARARs in 

developing remedial actions. 

1 See 40 CFR Part 300. 

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1.1 OVERVIEW OF REQUIREMENTS CONCERNING CERCLA COMPLIANCE WITH OTHER LAWS 

CERCLA, as it was passed in 1980, did not contain a specific requirement 

pertaining to the compliance of on-site CERCLA actions with other laws. CERCLA §105, 

which authorizes EPA to prepare the National Contingency Plan (NCP) for Hazardous 

substance response, says only that the NCP shall include “methods and criteria for 

determining the appropriate extent of removal, remedy, and other measures.” EPA, 

however, stated in the NCP (as revised in 1985)2 and in its policy memorandum on 

CERCLA compliance with other environmental statutes, which was attached to the 

preamble to the 1985 NCP, that it would attain or exceed applicable or relevant and 

appropriate Federal environmental and public health standards in CERCLA response 

actions unless one of five specifically enumerated situations was present. 

CERCLA §121, added by Congress in SARA in 1986, in effect codifies EPA’s 

existing approach to compliance with other laws. Section 121 establishes cleanup 

standards for remedial actions under §§104 and 106 of CERCLA. Remedial actions must 

attain a general standard of cleanup that assures protection of human health and the 

environment, must be cost effective, and must use permanent solutions and 

alternative treatment technologies or resource recovery technologies to the maximum 

extent practicable. In addition, for any material remaining on-site,3 the level or 

standard of control that must be met for the hazardous substance, pollutant, or 

contaminant is at least that of any applicable or relevant and appropriate standard, 

requirement, criteria, or limitation under any Federal environmental law, or any 

more stringent standard, requirement, criteria, or limitation promulgated pursuant 

to a State environmental statute.4 

2 40 CFR §300.68 (50 FR 47969, November 20, 1985). 

3 CERCLA §121(c)(3)(B) requires off-site storage, destruction, 

treatment, or secure disposition of hazardous substances from Superfund sites 

to be carried out only at hazardous waste disposal facilities that are in 

compliance with Subtitle C of RCRA. CERCLA §121(d)(3) requires that transfer 

of hazardous substances be made only to facilities that are operating in 

compliance with §§3004 and 3005 of the Solid Waste Disposal Act (or, where 

applicable, in compliance with the Toxic Substances Control Act or other 

applicable Federal law) and all applicable State requirements. Requirements 

for off-site actions are discussed to some extent in this manual. For more 

detailed discussion of off-site requirements, the reader should consult 

“Revised Procedures for Planning and Implementing Off-site Response Actions 

(issued November 13, 1987, EPA Directive 9834.11). 

4 Applicable or relevant and appropriate requirements include more 

stringent currently promulgated State requirements (See CERCLA §121 

(d)(2)(A)(ii)). The proposed NCP will define “promulgated” State requirements 

as those laws or regulations that are of general applicability and are legally 

enforceable. Coordination with State governments to identify State ARARs will 

be addressed at a later date. 

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Congress added several new categories of potential ARARs, particularly State 

standards, which the NCP had previously included in the category of requirements to 

be considered, but not necessarily attained. In addition, remedial actions are now 

required by §121 to at least attain levels or standards of control established by 

Maximum Contaminant Level Goals under the Safe Drinking Water Act and Federal Water 

Quality Criteria under the Clean Water Act, when those standards or goals are 

relevant and appropriate under the circumstances of the release.5 Section 121 also 

establishes special requirements for the use of alternate concentration limits. 

CERCLA §121(e) provides that no Federal, State, or local permit shall be 

required "for the portion of any removal or remedial action conducted entirely on 

site," when the action is selected and carried out in compliance with the cleanup 

standards requirements in §121. EPA interprets “on-site” to include the “areal 

extent of contamination and all suitable areas in very close proximity to the 

contamination necessary for implementation of the response action.” As a matter of 

policy, this definition would be implemented with certain limitations. Generally, 

best professional judgment should be used to determine that the area is within “very 

close proximity” to the contamination and is necessary for implementation of the 

portion of the response action addressing the nearby contamination.6 

Finally, §121(d)(4) provides that under six specific circumstances, described 

below, legally applicable or relevant and appropriate requirements can be waived. 

However, the requirement that the remedy be protective of human health and the 

environment cannot be waived. 

ARARs and Removal Actions 

The requirements of CERCLA §121 generally apply as a matter of law only to 

remedial actions. EPA’s policy for removal actions, however, is that ARARs will be 

identified and attained to the extent practicable. This manual may be used as a 

reference by On-Scene Coordinators (OSCs) to assist in identifying potential ARARs 

for removal sites. Three factors will be applied to determine whether the 

identification and attainment of ARARs is practicable in a particular removal 

situation: (1) the exigencies of the situation; (2) the scope of the removal action 

to be taken; and (3) the effect of ARAR attainment on the statutory limits for 

removal action duration and cost. These factors are outlined below. 

5 Details concerning these categories of standards are provided in section 

1.2.3.1 below. CERCLA §121(d)(2)(B)(i) lists four factors that must be considered 

in determining whether or not any water quality criteria under the Clean Water 

Act are relevant and appropriate. 

6 Federal, State, or potentially responsible parties undertaking removal or 

remedial actions under CERCLA §§104, 106, or 122 are covered by the §121(e) 

permit exemption. 

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Exigencies of the situation. OSCs must often act quickly to provide protection 

of public health and the environment and any delay would compromise this objective 

of the removal action. Where urgent conditions constrain or preclude efforts to 

identify and attain ARARs, the OSC’s documentation of these conditions will be 

considered sufficient as justification for not attaining all ARARs. To illustrate, a 

site may contain leaking drums that pose a danger of fire or explosion in a 

residential area. The drums should be removed or stabilized imediately, without 

attempting to identify and comply with all potential ARARs. The OSC’s documentation 

should describe the time critical nature of the situation and the remedial action 

taken. 

Scope of the removal action. Removal actions generally focus on the 

stabilization of a release or threat of release and mitigation of near-term threats. 

ARARs that are within the scope of such removal actions, therefore, are only those 

ARARs that must be attained in order to eliminate the near-term threats. For 

example, a removal action may be conducted to remove large numbers of leaking drums 

and associated contaminated soil. In this situation, because the removal focuses 

only on partial control, chemical-specific ARARS for groundwater restoration would 

not be considered. 

Statutory limits. CERCLA sets time and money limitations on a removal action. 

Attainment of all ARARs for a removal response may not be possible within the 12 

months or $2 million limits set in the statute. For instance, a removal action may 

be undertaken at a site where there is widespread soil and ground water 

contamination. This response might involve removal of surface debris and excavation 

of highly-contaminated soil necessary to reduce the direct contact threat and 

further deterioration of the ground water. If the statutory limits were reached or 

approached as a result of the debris removal and limited excavation, more extensive 

excavation of low-level soil contamination as part of the removal action may not be 

warranted. Although the statutory limits may preclude removals from attaining all 

identified ARARs, OSCs will give greater emphasis to those ARARs that are most 

crucial to the proper stabilization of the site and protection of public health and 

the environment. (Exemptions to the $2 million/12 month statutory limits may be 

granted where sites meet the criteria for approving the “emergency” or “consistency” 

exemptions.) 

In addition to the three factors for determining whether it is practicable to 

identify and attain ARARs for removal actions, the statutory waivers in CERCLA 

§121(d)(4) would apply to removal as well as to remedial actions. For example, State 

ARARs do not have to be attained where the State standard, requirement, criterion, 

or limitation has not been consistently applied in circumstances similar to the 

response in question. If a State standard is identified as an ARAR for a removal 

action, attainment of that ARAR may be waived if the State has inconsistently 

applied it in similar circumstances. The ARARs waivers generally may be used as they 

are used for remedial activities. 

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Developing Protective Remedies Using Risk Assessment, ARARs, and TBCs 

CERCLA §121 requires selection of a remedial action that is protective of 

human health and the environment. EPA’s approach to determining protectiveness 

involves assessment, considering both ARARs and to-be-considered materials (TBCs). 

The risk assessment includes consideration of site-specific factors such as types of 

hazardous substances present, potential for exposure, and presence of sensitive 

populations. Acceptable exposure levels are generally determined by applicable or 

relevant and appropriate Federal and State environmental requirements, if available, 

and the following factors: (1) for systemic toxicants, concentration levels to which 

the human population (including sensitive subgroups) could be exposed on a daily 

basis without appreciable risk of significant adverse effects during a lifetime; (2) 

for known or suspected carcinogens, concentration levels that represent an excess 

upperbound lifetime cancer risk to an individual of between 10-4 and 10-7; (3) other 

factors related to exposure (such as multiple contaminants at a site or multiple 

exposure pathways) or to technical limitations (such as detection/quantiiication 

limits for contaminants). The Superfund Public Health Evaluation Manual provides 

guidance on determining acceptable levels.7 

1.2 GENERAL PROCEDURES FOR DETERMINING IF REQUIREMENT IS APPLICABLE OR RELEVANT 

AND APPROPRIATE 

CERCLA §121 requires, for hazardous substances left on-site at the conclusion 

of remedial actions, that the action require a level or standard of control which at 

least attains applicable or relevant and appropriate Federal or State environmental 

or public health requirements, except in certain limited circumstances. A 

requirement in applicable if the specific terms (or “jurisdictional prerequisites”) 

of the law or regulation directly address the circumstances at a site. If not 

applicable, a requirement may nevertheless be relevant and appropriate if 

circumstances at the site are, based on best professional judgment (BPJ), 

sufficiently similar to the problems or situations regulated by the requirement. 

Exhibit 1-9 to this chapter lists the universe of ARARs,8 without reference to 

particular situations where they may apply. Exhibits 1-1, 1-2, and 1-3 of this 

chapter list potential chemical-specific, location-specific, and action-specific 

ARARs, respectively; these potential ARARs should be analyzed to determine ARARs for 

a specific CERCLA site. 

7 Superfund Public Health Evaluation Manual, OSWER Directive 9285.4-1, 

October, 1986. 

8 EPA has identified a comprehensive list of statutory and regulatory 

requirements from which potential ARARs for a particular CERCLA site may be 

drawn. While every effort has been made to develop a complete list, some 

requirements, such as those recently promulgated, may not be included. 

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Because of the varied and unpredictable situations at CERCLA sites, EPA cannot 

specify in advance which requirements will be ARAR for each site. Applicable or 

relevant and appropriate requirements must be identified in connection with the 

characteristics of the particular site, the substances at the site, and the remedial 

action alternatives that are suggested by the circumstances of the site. In order to 

identify ARARs correctly and in a timely manner for on-site actions where permits 

are not required, each EPA Region should establish procedures, protocols, or 

memoranda of understanding to ensure early and continuous cooperation and 

coordination with Regional Superfund staff, appropriate Regional and State offices 

and other Federal arencies. These procedures should not recreate the administrative 

and procedural aspects of the permit process, but should ensure that all substantive 

requirements are attained. Section 3.2.4 of this Compliance Manual addresses key 

areas for recommended coordination between Superfund and Water Offices, and includes 

a detailed discussion that may be adopted as needed for other environmental laws. 

The diagram on p. 1-7 provides an overview of critical points for 

identification of ARARs and for communication/coordination with other EPA offices, 

States, and other Federal agencies as appropriate to identify and ensure compliance 

with ARARs. Superfund staff should also consider Federal and State environmental and 

public health criteria, advisories, guidance, and proposed standards 

(“to-be-considered” materials, or TBCs). TBCs will be evaluated along with ARARs as 

part of the risk assessment conducted for each CERCLA site, and may be used to set 

protective cleanup level targets. 

Coordination between CERCLA (Superfund) and other Program Offices 

In order to identify ARARs correctly and in a timely manner, each EPA Region 

should establish procedures, protocols or memoranda of understanding that, while not 

recreating the administrative aspects of a permit, ensure early and continuous 

cooperation and coordination between the Regional Superfund and other program 

offices. In addition, State Superfund and other program offices may be involved 

where there is a State-lead action or where the State has been delegated authority 

under the Clean Water Act or under the Resource Conservation and Recovery Act. Other 

Federal agencies may assist in ARARs determination for laws which they administer, 

e.g., the Endangered Species Act. Coordination among all appropriate offices should 

be established. Such coordination will be particularly important for on-site actions 

where no Federal, State, or local permit is required. 

The process of identifying ARARs for remedial actions essentially begins after 

the site characterization (during the remedial investigation) and may continue 

through the remedial design phase. ARARs are identified in increments of increasing 

certainty as more information regarding the site is developed. The appropriate scope 

and extent of each Region’s coordination procedures for identifying ARARs should be 

determined by the Region. It is recommended that the description of roles and 

responsibilities should identify those steps in the Superfund remedy selection 

process where coordination will occur and the level of involvement anticipated for 

each of these stops (e.g., written comments at certain stages, routing procedures, 

and agreement as 

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to what constitutes timely notification and timely response between Superfund and 

other Regional and State program offices, and other Federal agencies). 

1.2.1 WHERE AND WHEN ARARs SHOULD BE ATTAINED 

ARARs (and materials “to be considered” for protectiveness -- TBCs) must be 

attained for hazardous substances remaining on-site at the completion of the 

remedial action. In addition, EPA intends that the implementation of remedial 

actions should also comply with ARARs (and TBCs as appropriate) to protect public 

health and the environment. All remedial actions should attain action-specific 

requirements that have been identified as ARAR while the remedial action is being 

conducted, unless a waiver is justified. However, if ARARs are not being met before 

the commencement of a remedial action, it is not necessary to invoke a waiver to 

justify their non-attainment during the action. 

Generally, EPA’s policy is to attain ARARs (and TBCs necessary for protection) 

pertaining either to contaminant levels or to performance or design standards to 

ensure protection at all points of potential exposure. At sites where a TBC value is 

used to set a protective level of cleanup or where the ARAR does not specify the 

point of compliance, there is discretion to determine where the requirement shall be 

attained to ensure protectiveness. At each potential point of exposure, a reasonable 

maximum exposure scenario should be assumed, and cleanup goals set accordingly to 

ensure protectiveness, using best professional judgment. Restrictions on use or 

access should not be a substitute for remediation to appropriate protective 

health-based or design levels. If active measures are not practicable (or 

cost-effective), exposure to the waste must be controlled through legally 

enforceable institutional means. “Non-engineered” or “exposure” controls may be used 

in certain circumstances in combination with “engineered” controls and/or treatment 

in the management and cleanup of the site where it is determined that such controls 

are necessary to be protective. In such circumstances, where exposure controls are 

used, restrictions should be employed to ensure that the controls remain in place, 

that they remain protective, and that they are effective in preventing exposure to 

hazardous substances for as long as the substances at the site remain hazardous. Any 

waste left in place should either be brought to health-based levels or managed 

according to performance or design specifications. 

For ground water, remediation levels should generally be attained throughout 

the contaminated plume, or at and beyond the edge of the waste management area when 

waste is left in place. For air, the selected level(s) should be established for the 

maximum exposed individual, considering reasonably expected use of the site and 

surrounding area. For surface waters, the selected level(s) should be attained at 

the point or points where the release enters the surface waters. 

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1.2.1.1 Requirements for Handling of Investigation-Derived or Laboratory 

Wastes 

The handling, treatment, or disposal of investigation-derived wastes produced 

during remedial activities such as the Site Investigation (SI) or Remedial 

Investigation/Feasibility Study (RI/FS) must be carried out in compliance with 

Federal and State ARARs. Field investigation teams should use best professional 

judgment in determining when investigation-derived wastes may contain hazardous 

wastes in hazardous amounts, and should handle such wastes in accordance with all 

Federal and State ARARs.9 Similarly, if the hazards of investigation-derived wastes 

are not known, EPA expects that field investigation teams will make a reasonable 

effort to comply with all requirements that may be relevant and appropriate, as 

necessary to protect public health and the environment.10 

9 Specifically, there are several ways that investigation-derived wastes 

may result from such remedial activities: (1) ground water or surface water 

samples that must be disposed of after analysis; (2) drill cuttings or core 

samples from soil boring or monitoring well installations; (3) purge water 

removed from sampling wells before ground water samples are collected; move (4) 

water, solvents, or other fluids used to decontaminate field equipment such as 

backhoes, drilling rigs, and pipes; (5) condensation from pipes used for gas 

sampling in landfills; and (6) waste produced by on-site pilot-scale facilities 

constructed to test technologies best suited for remediation of the site. Note 

that the activities conducted as part of the Superfund Innovative Technologies 

Evaluation (SITE) program under CERCLA §311(b) are not response actions and 

therefore are not required to comply with ARARs. Nonetheless, in order to ensure 

protection of human health and the environment, SITE demonstration projects 

taking place at Superfund sites should comply with the substantive requirements 

of all applicable or relevant and appropriate Federal and State environmental 

laws unless a waiver is justified. 

10 The handling, treatment, or disposal of any such investigation-derived 

wastes must satisfy Federal and State requirements that are applicable or 

relevant and appropriate to the site location and the amount and concentration of 

the hazardous substances, pollutants, or contaminants involved. For example, if 

ground water samples containing hazardous substances are to be disposed of by 

discharge into surface water, they may require treatment before disposal so that 

water quality standards are not violated. Also, if it is known or suspected that 

purge waters are drawn from an area with significant dioxin contamination, such 

investigation-derived wastes should be containerized, tested, and disposed of in 

accordance with all ARARs. (Consistent with established practice, 

investigation-derived materials may remain on-site until the remedial action 

commences.) In contrast, the routine placement in containers of large volumes of 

drilling muds and purge waters which are not suspected to contain hazardous 

substances may be unnecessary because they result only in delays to investigation 

with no attendant public health or environmental benefit. 

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1.2.2 DEFINITIONS OF APPLICABLE AND RELEVANT AND APPROPRIATE 

The following definitions of “applicable” and “relevant and appropriate” will 

be proposed in the new NCP and retain the essential features of definitions in the 

current NCP: 

Applicable requirements means those cleanup standards, standards of 

control, and other substantive environmental protection requirements, 

criteria, or limitations promulgated under Federal or State law that 

specifically address a hazardous substance, pollutant, contaminant, 

remedial action, location, or other circumstance at a CERCLA site. 

“Applicability” implies that the remedial action or the circumstances at the site 

satisfy all of the jurisdictional prerequisites of a requirement. For example, the 

minimum technology requirement for landfills under RCRA would apply if a new 

hazardous waste landfill unit or a lateral expansion of an existing unit as 

defined11 were to be built on a CERCLA site. 

If a requirement is not applicable, one must consider whether it is both 

relevant and appropriate. 

Relevant and appropriate requirements means those cleanup standards, 

standards of control, and other substantive environmental protection 

requirements, criteria, or limitations promulgated under Federal or State 

law that, while not “applicable” to a hazardous substance, pollutant, 

contaminant, remedial action, location, or other circumstance 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. However, in some circumstances, a requirement may be 

relevant but not appropriate for the site-specific situation. 

The determination that a requirement is relevant and appropriate is a two-step 

process: (1) determination if a requirement is relevant and (2) determination if a 

requirement is appropriate. In general, this involves a comparison of a number of 

site-specific factors, including the characteristics of the remedial action, the 

hazardous substances present at the site, or the physical circumstances of the site, 

with those addressed in the statutory or regulatory requirement. In some cases, a 

requirement may be relevant, but not appropriate, given site-specific circumstances; 

such a requirement would not be ARAR for the site. In addition, there is more 

discretion in the determination of relevant and appropriate; it is possible for only 

part of a requirement to be considered relevant and appropriate in a given case. 

11 Defined in RCRA §3015(b) and 40 CFR 264.301(c) and 265.301(a). 

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1-11 

The first step of this determination is a screen of the requirements based on 

the factors listed in Exhibit 1-7 to determine if the requirement is potentially 

relevant at the site. If the requirement is relevant, then the comparison should be 

further refined to determine if the requirement is appropriate, focusing on the 

characteristics of the site and the proposed remedial action. The determination that 

a requirement is relevant and appropriate is site-specific and must rely on best 

professional judgment. 

When the analysis results in a determination that a requirement is both 

relevant and appropriate, such a requirement must be complied with to the same 

degree as if it were applicable. 

More detailed discussion of the determination of relevance and appropriateness 

is provided in section 1.2.4.3 following. 

1.2.2.1 Definitions of Substantive and Administrative Requirements 

Section 121(e) of CERCLA codifies EPA’s earlier policy that on-site response 

actions may proceed without obtaining permits. This permit exemption allows the 

response action to proceed in an expeditious manner, free from potential lengthy 

delays of approval by administrative bodies. This permit exemption applies to all 

administrative requirements, whether or not they are actually styled as “permits.” 

Thus, in determining the extent to which on-site CERCLA response actions must comply 

with other environmental and public health laws, one should distinguish between 

substantive requirements, which may be applicable or relevant and appropriate and 

administrative requirements, which are not. The determination of whether a 

requirement is substantive need not be documented. 

Substantive requirements 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). 

Administrative requirements are those mechanisms that facilitate the 

implementation of the substantive requirements of a statute or regulation. 

Administrative requirements include the approval of, or consultation with 

administrative bodies, consultation, issuance of permits, documentation, 

reporting,12 recordkeeping, and enforcement. In general, administrative requirements 

prescribe methods and procedures by which substantive requirements are made 

effective for purposes of a particular environmental or 

12 Note that some requirements may be written to contain substantive 

requirements in sections which primarily address administrative requirements 

such as reporting. 

* * * AUGUST 8, 1988 DRAFT * * * 

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public health program. For example, the requirement of the Fish and Wildlife 

Coordination Act to consult with the U.S. Fish and Wildlife service, Department of 

the Interior, and appropriate State agency before controlling or modifying any 

stream or other water body is administrative. 

This distinction is important because while off-site remedies must obtain all 

necessary permits and fulfill all administrative procedures, cleanup activities that 

remain on-site are statutorily exempted by CERCLA §121(e) from obtaining permits. 

While Superfund cleanups will comply with all the substantive requirements that 

permits enforce, on-site CERCLA cleanups are not required to obtain the actual 

permit papers, or to obtain the approval of State or local administrative boards. 

Instead, the Feasibility Study, the Proposed Plan, the ROD, the Community Relations 

Plan, and the Administrative Record will document that the substantive requirements 

of other Federal and State laws have been identified and will be complied with. 

The CERCLA program has its own set of administrative procedures which assure 

proper implementation of CERCLA. The application of additional or conflicting 

administrative requirements could result in delay or confusion. 

In most cases, the classification of a particular requirement as substantive 

or administrative will be clear, but some requirements may fall in the area between 

provisions related primarily to program administration and those concerned primarily 

with environmental and human health goals. The following considerations may be 

balanced in determining whether such requirements are substantive or administrative: 

� The basic purpose of the requirement; 

� Any adverse effect on the ability of the action to protect human health and 

the environment if the requirement were not met; 

� The existence of other requirements (e.g., CERCLA procedures) at the site 

that would provide functionally equivalent compliance; 

� Classification of similar or identical requirements as substantive or 

administrative in other CERCLA situations. 

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1-13 

1.2.3 TYPES OF ARARs 

The laws and regulations that establish the universe of applicable or relevant 

and appropriate requirements are listed in Exhibit 1-9 at the end of this chapter. 

Exhibit 1-9 offers an overview of ARARs and is provided for reference purposes. 

Exhibits 1-1, 1-2, and 1-3 present potential chemical-, location-, and 

action-specific ARARs respectively, and must be examined in light of site-specific 

circumstances to determine the actual ARARs for each site. These exhibits will be 

expanded or revised as necessary to reflect changes in the laws or in regulations. 

An automated Federal ARARs database will be developed. 

The manual also includes in Exhibit 1-10 other Federal (and selected State) 

criteria, advisories, and guidance to be considered (TBCs). TBCs are not ARARs, but 

chemical-specific TBC values such as health advisories and reference doses will be 

used in the absence of ARARs or where ARARs are not sufficiently protective to 

develop cleanup goals (see discussion of risk assessment in Section 1.2.3.1 below). 

In addition, other TBC materials such as guidance or policy documents developed to 

implement regulations may be considered and used as appropriate, where necessary to 

ensure protectiveness. 

1.2.3.1 Chemical-Specific Requirements 

Chemical-specific ARARs are usually health- or risk-based numerical values or 

methodologies which, when applied to site-specific conditions, result in the 

establishment of numerical values. These values establish the acceptable amount or 

concentration of a chemical that may be found in, or discharged to, the ambient 

environment.13 If a chemical has more than one such requirement that is ARAR, the 

most stringent generally should be complied with. There are, at present, only a 

limited number of chemical-specific requirements. 

The results of a risk assessment, following the procedures in the Superfund 

Public Health Evaluation Manual (SPHEM), are used in setting cleanup goals that are 

protective. As described in the SPHEM, the total carcinogenic risk or hazard index 

for all chemicals of concern in a medium in calculated in this risk assessment. As a 

starting point for setting cleanup goals, the risk calculations are developed using 

chemical-specific requirements. If there are no chemical-specific ARARs, then 

specified Federal or State TBC values are used in the calculations. 

In general, chemical-specific requirements are set for a single chemical or 

closely-related group of chemicals. Those requirements typically do not consider the 

mixtures of chemicals that may be found at Superfund sites. Therefore, due to 

site-specific factors, cleanup goals set at the levels of 

13 Some Federal or State statutes, such as the Clean Water Act, may 

establish a methodology for setting site-specific discharge limitations. Such 

requirements may also be ARARs, depending on site-specific considerations. 

* * * AUGUST 8, 1988 DRAFT * * * 

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1-14 

single chemical-specific requirements may not adequately protect human health or the 

environment at that site. In these instances, cleanup goals would be set below the 

chemical-specific requirements (i.e., at more stringent levels). Similarly, cleanup 

goals at a site may also be set below the TBC value in order to protect human health 

and the environment. 

Exhibit 1-1 provides a matrix of chemical-specific standards established under 

several statutes. These chemical-specific requirements will generally be more likely 

to be relevant and appropriate rather than applicable to CERCLA actions. Chapters 2 

through 4 provide detailed guidance in evaluating these potential ARARs. It will be 

necessary to examine these standards in light of site-specific circumstances to 

determine actual ARARs for each site. At present, Exhibit 1-1 contains standards 

developed under the Resource Conservation and Recovery Act (RCRA), the Safe Drinking 

Water Act (SDWA), and the Clean Water Act (CWA), but does not include standards 

developed under other environmental laws, such as programs for the protection of air 

quality (e.g., National Ambient Air Quality Standards). As additional statutes are 

analyzed, the matrix will be expanded to include any standards established under 

those statutes that are potential ARARs. 

The following chemical-specific standards are included in the matrix: 

RCRA Maximum Concentration Limits. Standards (abbreviated as RCRA MCLs) for 14 

toxic compounds, primarily toxic metals and pesticides, have been adopted as a 

part of RCRA ground-water protection standards (40 CFR §264.94). These 

ground-water protection standards are equal to MCLs established under the 

National Primary Drinking Water Standards, based on the 1962 Public Health 

Service Regulations under the Safe Drinking Water Act (SDWA). The basic 

jurisdictional prerequisites for RCRA MCLs are part of the RCRA ground-water 

monitoring and response requirements, which apply to RCRA regulated units 

subject to permitting (landfills, surface impoundments, waste piles, and land 

treatment units) that received RCRA hazardous waste after July 26, 1982. If a 

comparison of indicator concentrations from background and downgradient wells 

shows a statistically significant increase, a ground-water protection standard 

is established for all hazardous constituents. The baseline protection 

standard is the background level of the constituent, or one of the 14 RCRA 

MCLs, whichever is higher. Alternatively, an alternate concentration limit 

(ACL) may be applied for and granted on a site-specific basis, if the 

constituent (in the quantity specified in the ACL) will not pose a substantial 

present or potential hazard to human health and the environment. 

SDWA Maximum Contaminant Levels. Standards (also abbreviated as MCLs) for 30 

toxic compounds, including the 14 compounds adopted as RCRA MCLs, have been 

adopted as enforceable standards for public drinking water systems (40 CFR 

§§141.11-141.16). MCLs for non-carcinogens are based in part on the allowable 

lifetime exposure to the contaminant for a 70 kg (154 pound) adult who is 

presumed to consume 2 liters (0.53 gallons) of water per day. In addition to 

* * * AUGUST 8, 1988 DRAFT * * * 

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1-15 

health factors, an MCL is required to reflect the technical and economic 

feasibility of removing the contaminant from the water supply. MCLs for each 

contaminant regulated must be set as close as feasible to the MCL Goal for 

that contaminant, given the best available technology and treatment 

techniques. The basic jurisdictional prerequisite for MCLs is that they apply 

to “public water systems,” defined as systems for the provision of piped water 

for human consumption with at least 15 service connections or serving at least 

25 persons. The SDWA Amendments of 1986 require EPA to promulgate National 

Primary Drinking Water Standards for 83 contaminants within three years. 

Thereafter, EPA is required to promulgate standards for 25 more contaminants 

every three years. 

SDWA MCL Goals. MCL Goals (MCLGs) (formerly known as recommended MCLs or 

RMCLs) are non-enforceable health goals for public water systems. EPA has 

promulgated MCLGs for 9 contaminants (40 CFR §§141.50-141.51), and has 

proposed MCLGs for 40 others (50 FR 46936). MCLGs are set at levels that would 

result in no known or anticipated adverse health effects with an adequate 

margin of safety. MCLGs for substances considered to be probable human 

carcinogens are set at the zero level, and MCLGs for substances that are not 

probable human carcinogens are set based upon chronic toxicity or other data. 

MCLGs are potentially relevant and appropriate standards under CERCLA §121. 

Water Quality Criteria (WOC). CERCLA §121 states that remedial actions shall 

attain Federal water quality criteria where they are relevant and appropriate 

under the circumstances of the release or threatened release. This 

determination is to be based on the designated or potential use of the water, 

the media affected, the purposes of the criteria, and current information. 

Water quality criteria are non-enforceable guidance developed under Clean 

Water Act (CWA) §304 and are used by the State, in conjunction with a 

designated use for a stream segment, to establish water quality standards 

under §303. In determining the applicability or relevance and appropriateness 

of water quality criteria, the most important factors to consider are the 

designated uses of the water and the purposes for which the potential 

requirements are intended. A water quality criteria component for aquatic life 

may be found relevant and appropriate when there are environmental factors 

that are being considered at a site, such as protection of aquatic organisms. 

With respect to the use of water quality criteria for protection of human 

health, levels are provided for exposure both from drinking the water and from 

consuming aquatic organisms (primarily fish) and from fish consumption alone. 

Whether a water quality criterion is relevant and appropriate and which form 

of the criterion is appropriate depends on the likely route(s) of exposure. A 

summary of water quality criteria may be found in Quality Criteria for Water 

1986, EPA 44/5-86-001, May 1, 1986 (51 Federal Register 43665) - commonly 

referred to as the “Gold Book.” 

* * * AUGUST 8, 1988 DRAFT * * * 

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1-16 

EXHIBIT 1-1

SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/

RCRA AND SDWA MCLS

Potential ARARs b/ 

RCRA Maximum SDWA Maximum 

Concentration Contaminant 

Limits Levels 

Chemical Name (mg/l) (mg/l) 

Arsenic

Barium

Benzene

Beta Particle Photon Radioactivity

Cadmium

Carbon Tetrachloride

Chromium

Coliform Bacteria

p-Dichlorobenzene

1,2-Dichloroethane

1,1-Dichloroethylene

2-4-Dichlorophenoxyacetic Acid (2,4-D)

Endrin

Fluoride

Lead

Lindane

Total Mercury

Methoxychlor

Nitrate (as N)

Radionuclides, gross alpha particle activity

Radium-226 + Radium-226

Selenium

Silver 

Toxaphene

2,4,5-TP Silvex

1,1,1-Trichloroethane

Trichloroethylene

Total Trihalomethanes

Turbidity

Vinyl Chloride

5.0 x 10-2 5.0 x 10-2 

1.0 1.0 

5.0 x 10-3 

4 millirems 

1.0 x 10-2 1.0 x 10-2 

5.0 x 10-3 

5.0 x 10-2 5.0 x 10-2 

1 per 100 ml 

7.5 x 10-2 

5.0 x 10-3 

7.0 x 10-3 

1.0 x 10-1 1.0 x 10-1 

2.0 x 10-4 2.0 x 10-4 

4.0 

5.0 x 10-2 5.0 x 10-2 

4.0 x 10-3 4.0 x 10-3 

2.0 x 10-3 2.0 x 10-3 

1.0 x 10-1 1.0 x 10-1 

10 

15 pCi/l 

5 pCi/l 

1.0 x 10-2 1.0 x 10-2 

5.0 x 10-2 5.0 x 10-2 

5.0 x 10-3 5.0 x 10-3 

1.0 x 10-2 1.0 x 10-2 

2.0 x 10-1 

5.0 x 10-3 

1.0 x 10-1 

1 Tu 

2.0 x 10-3 

* * * AUGUST 8, 1988 DRAFT * * * 

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EXHIBIT 1-1 (continued) 

SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

For Use In Special 

Potential ARARs b/ Circumstances 

CWA Water Quality Criteria 

for Protection of Human Health 

CWA Ambient Water Quality Criteria for 

Protection of Aquatic Life c/ 

Chemical Name 

Water and 

Fish Ingestion 

(mg/l) 

Fish Consumption

Only 

(mg/l)

Freshwater 

Acute/Chronic 

(mg/l) 

Marine 

Acute/Chronic 

(mg/l) 

SDWA/MCL Goal 

(mg/l) d/ 

Acenapthene

Acenaphthylene

Acrolein

Acrylonitrile

Aldrin

Anthracene

Antimony and Compounds

Arsenic and Compounds

Arsenic (V) and Compounds

Arsenic (III) and Compounds

Asbestos

Barium and Compounds

Benz(a)anthracene

Benz(c)acridine

Benzene

Benzidine

Benzo(a)pyrene

Benzo(b)fluoranthene

Benzo(ghi)perylene

Benzo (k) fluorantene

Beryllium and Compounds

Bis(2-chloroethyl)ether

Bis(2-chloroisopropyl)ether

Bis(chloromethyl)ether

3.2x10-01 7.8x10-01 

5.8x10-05 6.5x10-04 

7.4x10-08 7.9x10-08 

1.5x10-01 45 

2.2x10-06 1.8x10-05 

1 

6.6x10-04 4.0x10-02 

1.2x10-04 5.3x10-04 

6.8x10-06 1.2x10-04 

1.7*/0.5*

6.8x10-02*/2.1x10-02*

7.5*/2.6*

3.0x10-03

9.0/1.6

0.8*/4.8x10-02*

0.3/0.1

5.3*

2.5*

0.1*/5.3x10-03*

0.9*/0.7* 

3.0x10-01* 

5.5x10-02* 

1.3x10-03 

2.3*/1.3x10-02 

6.9x10-02/3.6x10-02 

0 

5.1*/0.7* 

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EXHIBIT 1-1 (continued) 

SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

For Use In Special 

Potential ARARs b/ Circumstances 

CWA Water Quality Criteria 

for Protection of Human Health 

CWA Ambient Water Quality Criteria for 

Protection of Aquatic Life c/ 

Water and 

Fish Ingestion 

(mg/l) 

Fish Consumption

Only 

(mg/l)

Freshwater 

Acute/Chronic 

(mg/l) 

Marine 

Acute/Chronic 

(mg/l) 

SDWA/MCL Goal 

Chemical Name (mg/l) d/

Cadmium and Compounds 1.0x10-02 3.9x10-03+/1.1x10-03+ 4.3x10-02/9.3x10-02 

Carbon Tetrachloride 4.0x10-04 6.9x10-03 3.5x10+01 5.0x10+01 0 

Chlordene 4.6x10-07 4.8x10-07 2.4x10-03/4.3x10-06 9.0x10-05/4.0x10-06 

Chlorinated Benzenes 2.5x10-01*/5.0x10-02* 1.6x10-01*/1.2x10-01* 

Chlorinated Napththalenes 1.6* 7.5x10-03* 

Chloroalkyl Ethers 2.3x10+02* 

Chlorobenzene (Mono) 

Chlorodibromomethane 

Chloroform 1.9x10-04 1.8x10-02 2.8x10+01*/1.2* 

2-Chlorophenol 4.3*/2.0* 

Chromium III and Compounds 170 3433 1.7+/0.2+ 1.0x10+01 

Chromium VI and Compounds 5.0x10-02 1.6x10-02/1.1x10-03 1.1/5.0x10-02 

Copper and Compounds 1.8x10-02+/1.2x10-02+ 2.9x10-03/2.9x10-03 

Cyanides 2x10-01 2.2x10-02/5.2x10-03 1.0x10-03/1.0x10-03 

DDT 2.4x10-08 2.4x10-08 1.1x10-03/1.0x10-06 1.3x10-04/1.0x10-06 

Dibutyl Phthalate 35 154 

Dichlorobenzenes 4x10-01 2.6 1.1*/7.6x10-01* 1.9* 

1,2-Dichlorobenzene 

1,3-Dichlorobenzene 7.5x10-01 

1,4-Dichlorobenzene 

3,3'-Dichlorobenzidine 1x10-04 2x10-05 

1,2-Dichloroethane (EDC) 9.4x10-04 2.4x10-01 1.1x10+02*/2.0x10+01* 1.1x10+02* 0 

Dichloroethylenes 3.3x10-05 1.9x10-03 1.1x10+1* 2.2+02* 

* * * AUGUST 8, 1988 DRAFT * * * 

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EXHBIT 1-1 (continued) 

SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQURIEMENTS a/ 

For Use In Special 

Potential ARARs b/ Circumstances 

CWA Water Quality Criteria 

for Protection of Human Health 

CWA Ambient Water Quality Criteria for 

Protection of Aquatic Life c/ 

Water and 

Fish Ingestion 

(mg/l) 

Fish Consumption

Only 

(mg/l)

Freshwater 

Acute/Chronic 

(mg/l) 

Marine 

Acute/Chronic 

(mg/l) 

SDWA/MCL Goal 

Chemical Name (mg/l) d/

1,1-Dichloroethylene

2,4-Dichlorophenol

2,6-Dichlorophenol

3,4-Dichlorophenol

2,3-Dichlorophenol

2,5-Dichlorophenol

2,4-Dichlorophenoxyacetic Acid (2,4-D)

1,3-Dichloropropene

Dieldrin

Diethylphthalate

Bis(2-ethylhexyl)phthalate (DEHP)

Diethylnitrosamine

7,12-Dimethylbenz(a)anthracene

Dimethylnitrosamine

2,4-Dimethylphenol

Dimethylphthalate

4,6-Dinitro-o-cresol

2,4-Dinitrophenol

1,2-Diphenylhydrazine

Endosulfan

Endrin

Ethylbenzene

Fluoranthene

Fluorides

3.1 1.1x10+01* 

2.0*/0.3* 

8.7x10-02 14.1 6.0*/0.2*

7.1x10-08 7.6x10-08 2.5x10-03/1.9x10-06

350 1800

2.1* 

313 2900 

7.4x10-02 1.6x10-01 2.2x10-04/5.6x10-05 

1x10-03 1.8x10-04/2.3x10-06 

1.4 3.3 3.2x10+01 

4.2x10-02 5.4x10-02 3.9* 

4.0 

* * * AUGUST 8, 1988 DRAFT * * * 

2.2x10+02* 7.0x10-03 

7.0x10-03 

0.7* 

0.7x10-03/1.9x10-06 

3.4x10-05/8.7x10-06 

3.7x10-05/2.3x10-06 

4.3x10-01* 

4.0x10-02*/1.6x10-02* 

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1-20 

EXHIBIT 1-1 (continued) 

SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Potential ARARs b/ Circumstances 

CWA Water Quality Criteria 

for Protection of Human Health 

CWA Ambient Water Quality Criteria for 

Protection of Aquatic Life c/ 

Water and 

Fish Ingestion 

(mg/l) 

Fish Consumption

Only 

(mg/l)

Freshwater 

Acute/Chronic 

(mg/l) 

Marine 

Acute/Chronic 

(mg/l) 

SDWA/MCL Goal 

Chemical Name (mg/l) d/

Heptachlor 2.8x10-07 2.9x10-07 5.2x10-04/3.8x10-06 5.3x10-05/3.6x10-06 

Hexachlorobenzene 7.2x10-07 7.4x10-07 

Hexacalorobutadiene 4.5x10-04 5x10-02 9.0x10-02/9.3x10-03* 3.2x10-02* 

alpha-Hexachlorocyclohexane (HCCH) 9.2x10-06 3.1x10-05 

gamma-HCCH (Lindane) 

Technical-HCCH 1.2x10-05 4.1x10-05 

Hexachlorocyclopentadiene 2.1x10-01 7.0x10-03*/5.2x10-03* 7.0x10-03* 

Hexachloroethane 1.9x10-03 8.74x10-03 9.8x10-01*/5.4x10-01* 9.4x10-01* 

Iodomethane 

Isophorone 1.17x10+02* 1.2x10+01* 

Lead and Compounds (Inorganic) 5x10-02 8.0x10-02/3.2x10-03* 0.1/5.6x10-03 

Mercury and Compounds (Alkyl) 2.4x10-03/1.2x10-05 2.14x10-03/2.5x10-05 

Mercury and Compounds (Inorganic) 1.4x10-04 1.5x10-04 2.4x10-03/1.2x10-05 2.1x10-03/2.5x10-05 

Methoxychlor 1x10-01 0.3x10-04* 0.3x10-04* 

Methyl Chloride 

2-Methyl-4-chlorophenol 

3-Methyl-4-chlorophenol 

3-Methyl-6-chlorophenol 

3-Monochlorophenol 

4-Monochlorophenol 

Nickel and Compounds 1.3x10-10 1x10-01 1.4+/1.6x10-01+ 7.5x10-02/8.3x10-03 

Nitrate (as N) 10 

Nitrobenzene 20 2.7x10+01* 6.6 

Nitrophenols 2.3x10-01*/1.5x10-01* 4.8* 

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EXHBIT 1-1 (continued) 

SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

For Use In Special 

Potential ARARs b/ Circumstances 

CWA Water Quality Criteria 

for Protection of Human Health 

CWA Ambient Water Quality Criteria for 

Protection of Aquatic Life c/ 

Chemical Name 

Water and 

Fish Ingestion 

(mg/l) 

Fish Consumption

Only 

(mg/l)

Freshwater 

Acute/Chronic 

(mg/l) 

Marine 

Acute/Chronic 

(mg/l) 

SDWA/MCL Goal 

(mg/l) d/ 

Nitrosamines 5.8* 3.3x10+03* 

n-Nitrosodiphenylamine 4.9x10-03 1.6x10-02 

N-Nitrosopyrrolidine 1.6x10-05 9.2x10-02 

Para Dichorobenzene 

Pentachlorinated Ethanes 7.2*/1.1* 3.9x10-01*/2.8x10-01* 

Pentachlorobenzene 7.4x10-02 8.5x10-02 

Pentachlorophenol 1 2.0x10-02/1.3x10-02 1.3x10-02/7.9x10-03 

Phenanthrene 

Phenol 3.5 1.0x10+01/2.5 5.8 

Phthalate Esters 9.4x10-01*/3.0x10-03* 2.9*/3.4x10-03* 

Polychlorinated Biphenyls (PCBs) 7.9x10-08 7.9x10-08 2.0x10-03/1.4x10-05 1.0x10-02/3.0x10-05 

Radionuclides, Gross alpha activity 15 pCil 

Radium 226 and 228 5 pCi/l 

Selenium and Compounds 1.0x10-02 1.0x10-02 2.6x10-01/3.5x10-02 4.1x10-01/5.4x10-02 

Silver and Compounds 5.0x10-02 5.0x10-02 4.1x10-03+/1.2x10-04 2.3x10-03 

Strontium-90 8 pCi/l 

2,3,7,8-TCDD (Dioxin) <1.0x10-05*/<1.0x10-08 

Tetrachlorinated Ethanes 9.3* 

1,2,4,5-Tetrachlorobenzene 3.8x10-02 4.8x10-02 

1,1,2,2-Tetrachlorethane 1.7x10-04 1.1x10-02 2.4* 9.0* 

Tetrachloroethanes 9.3* 

Tetrchloroethylene 8x10-04 8.9x10-03 5.2*/8.4x10-01* 1.0x10+01*/4.5x10-01* 

2,3,4,6-Tetrachlorophenol 4.4x10-01 

Thallium Compounds 1.3x10-02 4.8x10-02 1.4*/4.0x10-02* 2.1x10-03* 

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EXHIBIT 1-1 (continued) 

SELECTED CHEMICAL-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

For Use In Special 

Potential ARARs b/ Circumstances 

CWA Water Quality Criteria 

for Protection of Human Health 

CWA Ambient Water Quality Criteria for 

Protection of Aquatic Life c/ 

Water and 

Fish Ingestion 

(mg/l) 

Fish Consumption

Only 

(mg/l)

Freshwater 

Acute/Chronic 

(mg/l) 

Marine 

Acute/Chronic 

(mg/l) 

SDWA/MCL Goal 

Chemical Name (mg/l) d/

Toluene 14 420 1.7x10+01* 6.3*/5.0* 

Toxaphene 7.1x10-07 7.3x10-07 7.3x10-04/2.0x10-07 2.1x10-04/2x10-7 

Tribromomethane (Bromoform) 

Trichlorinated Ethanes 1.8x10+01* 

1,1,1-Trichloroethane 18 1000 3.1x10+01* 2.0x10-01 

1,1,2-Trichloroethane 6x10-04 4.2x10-02 9.4* 

Trichloroethylene 2.7x10-03 8.1x10-02 4.5x10+01*/2.1x10+01* 2.0* 0 

Trichloromonofluoromethane 

2,4,5-Trichlorophenol 2.8 

2,4,6-Trichlorophenol 1.2x10-03 3.6x10-03 9.7x10-01* 

2,4,5-Trichlorophenoxypropionic Acid 

Trihalomethanes (Total) b 

Tritium 

Vinyl Chloride 2x10-03 5.3x10-01 0 

Zinc and Compounds 1.3x10-01/1.1x10-01 9.6x10-02/8.6x10-02 

a/ Additional chemical-specific requirements will be added (e.g. National Ambient Air Quality Criteria) after analysis of additional statutes. 

b/ When two or more values conflict, the lower value generally should be used. 

c/ Federal water quality criteria (FWQC) are not legally enforceable standards, but are potentially relevant and appropriate to CERCLA actions. CERCLA §121(d)(2)(B)(i) requires consideration 

of four factors when determining whether FWQC are relevant and appropriate: 1 the designated or potential use of the surface or groundwater, 2) the environmental media affected, 3) the 

purposes for which such criteria were developed, and 4) the latest information available. 

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d/ For water that is to be used for drinking, the MCLs set under the SDWA are generally the applicable or relevant and appropriate standards. A standard for drinking water more stringent than an 

MCL may be needed in special circumstances, such as where multiple contaminants in ground water or multiple pathways of exposure present extraordinary risks. In setting a level more stringent 

than the MCL in such cases, a site-specific determination should be made by considering MCLGs, the Agency’s policy on the use of appropriate risk ranges for carcinogens (10-04 to 10-7 

individual lifetime risk), levels of quantification, and other pertinent guidelines. Prior consultation with Headquarters is encouraged in such cases. 

* Lowest Observed Effect level. 

+ Hardness dependent criteria (100 mg/l used); refer to specific criteria documents for equations to calculate criteria based on other water hardness values. 

Sources: U.S. EPA, Superfund Public Health Evaluation Manual. EPA 540/1-86/060 (OSWER Directive 9285.4-1) October 1986 and U.S. EPA, Quality Criteria for Water 1986, EPA 440/5-86-

001, May 1986 (51 Federal Register 43665). 

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1.2.3.2 Location-Specific Requirements 

A site's location is a fundamental determinant of its impact on human health 

and the environment. Location-specific ARARs are restrictions placed on the 

concentration of hazardous substances or the conduct of activities solely because 

they are in specific locations. Some examples of special locations include 

floodplains, wetlands, historic places, and sensitive ecosystems or habitats. An 

example of a location-specific requirement is the substantive CWA §404 prohibitions 

of the unrestricted discharge of dredged or fill material into wetlands. 

Exhibit 1-2 provides a matrix of location-specific requirements, established 

under several statutes, that are potential ARARs. At present, the matrix contains 

requirements established under a number of different environmental statutes. As 

additional statutes are analyzed, the matrix will be expanded to include their 

location-specific requirements. 

The following location-specific requirements are included in the matrix: 

RCRA Location Reguirements. RCRA contains a number of explicit limitations on 

where on-site storage, treatment, or disposal of hazardous waste may occur. In 

addition to the location criteria already contained in RCRA regulations, the 

Hazardous and Solid Waste Amendments of 1984 (HSWA) also mandate the 

development of location requirements concerning vulnerable hydrogeology (see 

RCRA §3004(o)(7)). When those regulations are promulgated, they will be added 

to the matrix. It should be emphasized that guidance issued under RCRA also 

should be considered when necessary to achieve protectiveness, but is not 

binding (i.e., is not ARAR) for determining what actions should be taken at a 

particular location.14 HSWA land disposal restrictions also prohibit placement 

of hazardous wastes in certain formations (salt domes, salt bad formations, 

and underground mines or caves) and list certain wastes, which will be 

evaluated for prohibition by EPA under RCRA by August 8, 1988, June 8, 1989, 

and May 8, 1990 (40 CFR §265.18, 40 CPR Part 268) 

National Historic Preservation Act of 1966 (NHPA)*. Requires action to take 

into account effects on properties included in or eligible for the National 

Register of Historic Places and to minimize harm to National Historic 

Landmarks. 

14 RCRA guidance which may be considered includes: Permit Writers’ 

Guidance Manual for the Location of Hazardous Waste Land Storage and Disposal 

Facilities: Phase I, Criteria for Location Acceptability and Existing 

Regulations for Evaluating Locations (final draft), February 1985; Permit 

Applicants’ Guidance Manual for the General Facility Standards of 40 CFR 264 , 

SW-968, October 1983; and Guidelines for Ground-Water Classification Under the 

EPA Ground-Water Protection Strategy , (final draft), December 1986. 

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*Endangered Species Act. Requires action to avoid jeopardizing the continued 

existence of listed endangered or threatened species or modification of their 

habitat. 

*Wilderness Act. Establishes nondegradation, maximum restoration, and 

protection of wilderness areas as primary management principles. 

*Fish and Wildlife Coordination Act. Requires action to protect fish and 

wildlife from actions modifying streams or areas affecting streams. 

*Wild and Scenic Rivers Act. Requires action to avoid adverse effects on 

designated wild or scenic rivers. 

*Coastal Zone Management Act. Requires activities affecting land or water uses 

in a coastal zone to certify noninterference with coastal zone management. 

Clean Water Act. Section 404 prohibits discharge of dredged or fill material 

into navigable waters without a permit. CERCLA on-site actions do not require 

a permit, but the substantive requirements of §404 regarding such a discharge 

would be ARAR.15 

40 CFR Part 6 Appendix A. Sets forth EPA policy for carrying out the 

provisions of Executive Orders 11988 (Floodplain Management) and 11990 

(Protection of Wetlands).16 

*These and other statutes will be addressed in a later addition to this manual. 

15 Note that Section 118(a)(1) of the CWA as amended by the Water Quality Act 

(WQA) of 1987 specifically provides that the United States should seek to attain 

the goals of the Great Lakes Water Quality Agreement (GLWQA), with particular 

emphasis on the goals related to toxic pollutants. Section 118(a)(1) also 

provides that EPA should take the lead in the effort to meet the GLWQA goals. 

Accordingly, the GLWQA will be very pertinent to sites having discharges to the 

Great Lake drainage basin. 

16 

Executive orders are binding on the section of the government for which they 

are issued. 

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EXHIBIT 1-2 

SELECTED LOCATION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Location Requirement Prerequisite Citation 

Within 61 meters (200 feet) of a fault New treatment, storage, or disposal of RCRA hazardous waste; treatment, storage, 40 CFR 264.18(a) 

displaced in Honocene time hazardous waste prohibited or disposal 

Within 100-year floodplain Facility must be designed, constructed, RCRA hazardous waste; treatment, storage, 40 CFR 264.18(b) 

operated, and maintained to avoid washout or disposal 

Within floodplain b/ Action to avoid adverse effects, minimize Action that will occur in a floodplain, i.e., Protection of floodplains, b/ (40 CFR 6, 

potential harm, restore and preserve natural lowlands, and relatively flat areas adjoining Appendix A); Fish and Wildlife Coordination 

and beneficial values inland and coastal waters and other flood Act (16 USC 661 et seq.); 40 CFR 6.302 

prone areas 

Within salt dome formation, underground Placement of non-containerized or bulk RCRA hazardous waste; placement 40 CFR 264.18(c) 

mine, or cave liquid hazardous waste prohibited 

Within area where action may cause Action to recover and preserve artifacts Alteration of terrain that threatens significant National Historical Preservation Act (16 USC 

irreparable harm, loss, or destruction of scientific, prehistorical, historical or Section 469); 36 CFR Part 65 

significant artifacts archaeological data 

Historic project owned or controlled by Action to preserve historic properties; Property included in or eligible for the National Historic Preservation Act, Section 

Federal agency planning of action to minimize harm to National Register of Historic Places 106 (16 USC 470 et seq.); 36 CFR Part 800 

National Historic Landmarks 

Critical habitat upon which endangered Action to conserve endangered species or Determination of presence of endangered or Endangered Species Act of 1973 (16 USC 

species or threatened species depends threatened species, including consultation threatened species 1531 et seq.) 50 CFR Part 200, 50 CFR part 

with the Department of Interior 402 Fish and Wildlife Coordination Act (16 

USC 661 et seq.(; 33 CFR Parts 320-330. 

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EXHIBIT 1-2 (Continued) 

SELECTED LOCATION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS 

Location Requirement Prerequisite Citation 

Wetlands b/ Action to prohibit discharge of dredged or 

fill material into wetlands without permit 

Action to avoid adverse effects, minimize 

potential harm, and preserve and enhance 

wetlands, to the extent possible (see 

discussion in section 3.4.4.1) 

Wilderness area Areas must be administered in such manner 

as will leave it unimpaired as wilderness and 

to preserve its wilderness 

Wildlife refuge Only actions allowed under the provisions of 

16 USC Section 668 dd(c) may be 

undertaken in areas that are part of the 

National Wildlife Refuge System 

Area affecting stream or river Action to protect fish or wildlife 

Within area affecting national wild, scenic, or Avoid taking or assisting in action that will 

recreational river have direct adverse effect on scenic river 

Within coastal zone Conduct activities in manner consistent with 

approved State management programs 

Within designated coastal barrier Prohibits any new Federal expenditure within 

the Coastal Barrier Resource System 

Wetland as defined in U.S. Army Corps of 

Engineers regulations 

Action involving construction of facilities or 

management of property in wetlands, as 

defined by 40 CFR Part 6, Appendix A, 

section 4 (j) 

Federally-owned area designated as 

wilderness area 

Area designated as part of National Wildlife 

Refuge System 

Diversion, channeling or other activity that 

modifies a stream or river and affects fish or 

wildlife 

Activities that affect or may affect any of the 

rivers specified in section 1276(a) 

Activities affecting the coastal zone including 

lands therein and thereunder and adjacent 

shorelands 

Activity within the Coastal Barrier Resource 

System 

Clean Water Act section 404; 40 CFR Parts 

230, 33 CFR Parts 320-330. 

40 CFR Part 6, Appendix A 

Wilderness Act (16 USC 1131 et seq.); 50 

CFR 35.1 st seq. 

16 USC 668dd et seq.; 50 CFR Part 27 

Fish and Wildlife Coordination Act (16 USC 

661 et seq.); 40 CFR 6.302 

Wild and Scenic Rivers Act (16 USC 1271 et 

seq. section 7 (a)); 40 CFR 6.302(e) 

Coastal Zone Management Act (16 USC 

Section 1451 et seq.) 

Coastal Barrier Resources Act (16 USC 3501 

et seq.) 

a/ Additional location-specific requirements will be added after analysis of additional sources and will be included in a subsequent draft of this manual. 

b/ 40 CFR Part 6 Subpart A sets forth EPA policy for carrying out the provisions of Executive Order 11988 (Floodplain Management) and 11990 (Protection of Wetlands). Executive orders are 

binding on the level (e.g., Federal, State) or government for which they are issued. 

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1.2.3.3 Action-Specific Requirements 

Action-specific ARARs are usually technology- or activity-based requirements 

or limitations on actions taken with respect to hazardous wastes. These requirements 

are triggered by the particular remedial activities that are selected to accomplish 

a remedy. Since there are usually several alternative actions for any remedial site, 

very different requirements can come into play. These action-specific requirements 

do not in themselves determine the remedial alternative; rather, they indicate how a 

selected alternative must be achieved. 

Exhibit 1-3 provides a matrix of action-specific requirements established 

under the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act. As 

the statute that is directed toward the management of hazardous waste, RCRA provides 

the largest number of pertinent action-specific requirements. However, detailed 

corrective action requirements, which would provide action-specific requirements for 

the types of actions most similar to CERCLA remedies, have not yet been promulgated. 

RCRA corrective action requirements and other action-specific requirements in other 

statutes will be added to subsequent drafts of this matrix as requirements are 

promulgated or as the other statutes are analyzed. 

The actions described in Exhibit 1-3 were identified as potential CERCLA 

remedial alternatives from past Records of Decision (RODs). The terms used below to 

describe remedial actions are explained more fully in later chapters. They include 

the following: 

Air Stripping 

Capping 

Closure with No Post-Closure Care (e.g., Clean Closure - removal or 

decontamination of all residuals such that health-based standards are met) 

Closure with Waste In Place (i.e., capping or disposal closure) 

Closure of Land Treatment Units

Consolidation within Unit

Consolidation between Units

Container Storage

Construction of New Landfill On-Site

Construction of New Surface Impoundment On-Site

Dike Stabilization

Discharge of Treatment System Effluent

Direct Discharge to Ocean

Discharge to Publicly Owned Treatment Works (POTW)

Discharge of Dredge and Fill Material to Waters of the U.S. or Ocean Waters

Dredging

Excavation

Gas Collection

Ground-Water Diversion

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Incineration (on-site)

Land Treatment 

Operation and Maintenance (O&M) (post-closure care)

Placement of Liquid Waste in Landfill

Placement of Waste in Land Disposal Unit

Slurry Wall

Surface Water Control

Tank Storage (on-site)

Treatment (in a unit)

Treatment (when waste will be land disposed)

Underground Injection of Wastes and Treated Ground Water

Waste Pile

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EXHIBIT 1-3 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Air Stripping [CAA requirements to be provided.] 

Capping Placement of a cap over waste (e.g., closing a 

(See also Closure with Waste landfill, or closing a surface impoundment or 

in Place for additional 

associated requirements) 

waste pile as a landfill, or similar action) 

requires a cover designed and constructed to: 

B Provide long-term minimization of 

migration of liquids through the capped 

area; 

B Function with minimum maintenance; 

Promote drainage and minimize erosion or 

abrasion of the cover; 

B Accommodate settling and subsidence so 

that the cover’s integrity is maintained; and 

B Have a permeability less than or equal to the 

permeability of any bottom liner system or 

natural sub-soils present. 

RCRA hazardous waste placed at site after the 

effective date of the requirements, or placement of 

hazardous waste into another unit will make 

requirements applicable when the waste is being 

covered with a cap for the purpose of leaving it 

behind after the remedy is completed. Capping 

without such placement will not make requirements 

applicable. d/ 

40 CFR 264.288(a)

(Surface Impoundments)

40 CFR 264.258(b) (Waste

Piles)

40 CFR 264.310(a)

(Landfills)

a/ Currently only RCRA, CWA, and SDWA requirements are included. Additional action-specific requirements will be added as additional statutes are analyzed. 

b/ Action alternatives from ROD keyword index, FY1986 Record of Decision Annual Report, January 1987, Hazardous Site Control Division, EPA. 

c/ Requirements have been proposed but not promulgated for air stripping, hybrid closure, gas collection and miscellaneous unit treatment. When these regulations are promulgated, they 

will be included in the matrix. 

d/ Some action-specific requirements listed may be relevant and appropriate even if RCRA definitions of storage, disposal, or hazardous waste are not met, or if the waste at the site is 

similar to but not identifiable as a RCRA hazardous waste. See Chapter 2 for information on relevant and appropriate RCRA requirements. 

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EXHIBIT 1-3 (continued) 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Capping (continued) Eliminate free liquids, stabilize wastes 

before capping (surface impoundments). 

Restrict post-closure use of property as 

necessary to prevent damage to the cover. 

Prevent run-on and run-off from damaging 

cover. 

Protect and maintain surveyed benchmarks 

used to locate waste cells (landfills, waste 

piles). 

Closure with No Post-Closure General performance standard requires 

Care (e.g. Clean Closure) elimination of need for further maintenance 

and control; elimination of post-closure 

escape of hazardous waste, hazardous 

constituents, leachate, contaminated run-off, 

or hazardous waste decomposition products. 

Disposal or decontamination of equipment, 

structure, and soils. 

Removal or decontamination of all waste 

residue, contaminated containment system 

components (e.g., liners, dikes), 

contaminated subsoils, and structures and 

equipment contaminated with waste and 

leachate, and management of them as 

hazardous waste. 

Meet health-based levels at unit. 

Applicable to land-based unit containing hazardous 

waste. d/

 Applicable to RCRA hazardous waste (listed or 

characteristic) placed at site after the effective date of the 

requirements, or placed into another unit. Not applicable 

to material treated, stored, or disposed only before the 

effective date of the requirements, or if treated in-situ, or 

consolidated within area of contamination. Designed for 

cleanup that will not require long-term management. 

Designed for cleanup to health-based standards. 

May apply to surface impoundments and container or 

tank liners and hazardous waste residues, and to 

contaminated soil, including soil from dredging or soil 

disturbed in the course of drilling or excavation, and 

returned to land. 

40 CFR 264.228(a) 

40 CFR 264.117(c) 

40 CFR 264.228(b) 

40 CFR 264.310(b) 

40 CFR 264.310(b) 

40 CFR 264.111 

40 CFR 264.111 

40 CFR 264.178 

40 CFR 264.197 

40 CFR 264.288(o) (1) and 

40 CFR 264.258 

40 CFR 244.111 

d/ Some action-specific requirements listed may be relevant and appropriate even if RCRA definitions of storage, disposal, or hazardous waste are not met, or if the waste at the site 

is similar to but not identifiable as a RCRA hazardous waste. See Chapter 2 for information on relevant and appropriate RCRA requirements. 

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EXHIBIT 1-3 (continued) 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Closure with Waste In Place 

Closure of Land Treatment 

Units 

Consolidation within a Unit 

Eliminate free liquids by removal or 

solidification. 

Stabilization of remaining waste and 

waste residues to support cover. 

Installation of final cover to provide 

long-term minimization of infiltration 

(see Capping). 

30-year post-closure care and 

groundwater monitoring. e/ 

Maximize degradation, transformation, or 

immobilization of hazardous constituents 

within the treatment zone, minimize runoff of constituents, maintain run-on 

control system and run-off management 

system, control wind dispersal of 

hazardous waste, maintain unsaturated 

zone monitoring, establish vegetative 

cover, and establish background soil 

values to determine consistency with 

permit values. 

None applicable. d/ 

Applicable to land disposal of hazardous waste. d/ 

Applicable to RCRA hazardous waste (listed or 

characteristic) placed at site after the effective date of 

the requirements, or placed into another unit. Not 

applicable to material treated, stored, or disposed only 

before the effective date of the requirements, or if 

treated in-situ or consolidated within area of 

contamination. 

Closure of land treatment units. 

Consolidation within a unit. f/ 

40 CFR 264.228(a)(2) 

40 CFR 264.228(a)(2) 

40 CFR 264.258(b) 

40 CFR 264.310 

40 CFR 264.310 

40 CFR 264.280 

e/ Regional administrator may revise length of post-closure care period (40 CFR 264.117). 

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EXHIBIT 1-3 (continued) 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Consolidation between Units With respect to the waste that is moved, 

see requirements in the following 

sections: Capping, Closure with Waste in 

Place, Container Storage, Construction of 

a New Landfill On-Site, Construction of a 

New Surface Impoundment On-Site, 

Incineration (On-Site), Land Treatment, 

Operation and Maintenance, Tank 

Storage, and Treatment. 

Container Storage Containers of RCRA hazardous waste 

must be: 

B Maintained in good condition; 

B Compatible with hazardous waste to be 

stored; and 

B Closed during storage (except to add or 

remove waste). 

Inspect container storage areas weekly for 

deterioration. 

Place containers on a sloped, crack-free 

base, and protect from contact with 

accumulated liquid. Provide containment 

system with a capacity of 10 percent of 

the volume of containers of free liquids. 

Remove spilled or leaked waste in a 

timely manner to prevent overflow of the 

containment system. 

Movement of hazardous waste and placement into 

another unit. 

Storage of RCRA hazardous waste (listed or 

characteristic) not meeting small quantity generator 

criteria held for a temporary period greater than 90 

days before a treatment, disposal, or storage elsewhere 

(40 CFR 264.10), in a container (i.e., any portable 

device in which a material is stored, transported, 

disposed of, or handled). A generator who 

accumulates or stores hazardous waste on-site for 90 

days or less in compliance with 40 CFR 262.34(a)(1-

4) is not subject to full RCRA storage requirements. 

Small quantity generators are not subject to the 90 day 

limit (40 CFR 262.34(c),(d), and (e)). 

See Capping, Closure with Waste 

in Place, Container Storage, 

Construction of a New Landfill 

On-Site, Construction of a New 

Surface Impoundment On-Site, 

Incineration (On-Site), Land 

Treatment, Operation and 

Maintenance, Tank Storage, and 

Treatment in this exhibit. 

40 CFR 264.171 

40 CFR 264.172 

40 CFR 264.173 

40 CFR 264.174 

40 CFR 264.175 

f/ In many cases, there are no defined “units” at a CERCLA site. Instead, there are areas of contamination with differing concentration levels (including hot spots) of hazardous substances, 

pollutants, or contaminants. When RCRA hazardous wastes are moved into or out of an area of contamination, RCRA disposal requirements are applicable to the waste being managed and 

certain treatment, storage, or disposal requirements (such as for closure) are applicable to the area where the waste is received. 

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EXHIBIT 1-3 (continued) 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Container Storage 

(continued) 

Construction of New Landfill OnSite (see Closure with Waste in 

Place). 

Keep containers of ignitable or reactive 

waste at least 50 feet from the facility’s 

property line. 

Keep incompatible materials separate. 

Separate incompatible materials stored 

near each other by a dike or other barrier. 

At closure, remove all hazardous waste 

and residue from the containment system, 

and decontaminate or remove all 

containers, liners. 

Storage of banned wastes must be in 

accordance with 40 CFR 268. When such 

storage occurs beyond one year, the 

owner/operator bears the burden or 

proving that such storage is solely for the 

purpose of accumulating sufficient 

quantities to allow for proper recovery, 

treatment, and disposal. 

Minimum Technology Requirements : 

Install two liners or more, a top liner that 

prevents waste migration into the liner, 

and a bottom liner that prevents waste 

migration through the liner.h/ 

Install leachate collection systems above 

and between the liners. 

RCRA hazardous waste (listed or characteristic) 

currently being placed in a new, replacement, or 

expanded landfill. 

40 CFR 264.176 

40 CFR 264.177 

40 CFR 264.178 

40 CFR 268.50 

40 CFR 264.301 

40 CFR 264.301 

h/ Landfill units meeting the requirements of 40 CFR 264.310(f) are not subject to RCRA minimum technology requirements. 

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EXHIBIT 1-3 (continued) 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Construction of New Landfill 

(see Closure with Waste in Place). 

(continued) 

Construct run-on and run-off control 

system capable of handling the peak 

discharge of a 25-year storm. 

Control wind dispersal of particulates. 

Operation and maintenance. 

Close each cell with a final cover after the 

last waste has been received. 

Ground-water Monitoring 

Establish a detection monitoring program 

(264.98). Establish a compliance 

monitoring program (264.99) and 

corrective action monitoring program 

(264.100) when required by 40 CFR 

264.91. All monitoring program must 

meet RCRA general ground-water 

monitoring requirements (264.97) 

40 CFR 264.301 

40 CFR 264.301 

40 CFR 264.303-304 

40 CFR 264.310 

Creation of a new landfill unit to treat, store, or 40 CFR 264.91- 264.100

dispose of RCRA hazardous wastes as part of a

response action.

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EXHIBIT 1-3 (continued) 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Construction of a New Surface 

Impoundment (see Closure with 

Waste in Place and Closure with 

no Post-Closure Care) 

Minimum Technology Requirements: 

Use two liners, a top liner that prevents 

waste migration into the liner and a 

bottom liner that prevents waste 

migration through the liner (throughout 

the post-closure period). 

Design liners to prevent failure due to 

pressure gradients, contact with the waste, 

climatic conditions, and the stress of 

installation and daily operations. 

Provide a leachate collection system 

between the two liners. 

Use a leak detection system that will 

detect leaks at the earliest possible time. 

Ground-water Monitoring 

Establish a detection monitoring program 

(264.98). Establish a compliance 

monitoring program (264.99) and 

corrective action monitoring program 

(264.100) when required by 40 CFR 

264.91. All monitoring program must 

meet RCRA general ground-water 

monitoring requirements (264.97) 

RCRA hazardous waste (listed or characteristic) currently 

being placed in a new surface impoundment, or use of 

replacement or lateral extension of existing landfills or 

surface impoundments. 

Creation of a new landfill unit to treat, store, or dispose of 

RCRA hazardous wastes as part of a remedial action. 

40 CFR 264.220 

40 CFR 264.221 

40 CFR 264.221 

40 CFR 264.221 

40 CFR 264.91-264.100 

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EXHIBIT 1-3 (continued) 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Dike Stabilization Design and operate facility to prevent Existing surface impoundment containing 

overtopping due to overfilling: wind and wave hazardous waste, or creation of a new surface 

action; rainfall; run-on; malfunction of level impoundment. 

controllers, alarms, and other equipment; and 

human error. 

Construct dikes with sufficient strength to prevent 

massive failure. 

Inspect liners and cover systems during and after 

construction. 

Inspect weekly for proper operation and integrity 

of the containment devices. 

Remove surface impoundment from operation if 

the dike leaks or there is a sudden drop in liquid 

level. 

At closure, remove or decontaminate all waste 

residues and contaminated materials. Otherwise, 

free liquids must be removed, the remaining 

wastes stabilized, and the facility closed in the 

same manner as a landfill. 

Manage ignitable or reactive wastes so that it is 

protected from materials or conditions that may 

cause it to ignite or react. 

* * * AUGUST 8, 1988 DRAFT * * * 

40 CFR 264.221 

40 CFR 264.221 

40 CFR 264.226 

40 CFR 264.226 

40 CFR 264.227 

40 CFR 264.228 

40 CFR 264.227 

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EXHIBIT 1-3 (continued) 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Discharge of Treatment System 

Effluent 

Best Available Technology: 

Use of best available technology (BAT) 

economically achievable is required to 

control toxic and nonconventional 

pollutants. Use of best conventional 

pollutant control technology (BCT) is 

required to control conventional pollutants. 

Technology-based limitations may be 

determined on a case-by-case basis. 

Water Quality Standards : 

Applicable Federally approved State water 

quality standards must be complied with. 

These standards may be in addition to or 

more stringent than other Federal standards 

under the CWA. k/ 

Discharge limitations must be established at 

more stringent levels than technology-based 

standards for toxic pollutants. 

Best Management Practices: 

Develop and implement a Best Management 

Practices program to prevent the release of 

toxic constituents to surface waters. 

Point source discharge to waters of the United 40 CFR 122.44(a) 

States. i/ j/ 

40 CFR 122.44 and State 

regulations approved 

under 40 CFR 131 

40 CFR 122.44 (e) 

40 CFR 125.100 

i/ “Waters of the U.S.” is defined broadly in 40 CFR 122.2 and includes essentially any water body and wetland. 

j/ Section 121 of SARA exempts on-site CERCLA activities from obtaining permits. However, the substantive requirements of a law or regulation must be met. In particular, on-site 

discharges to surface waters are exempt from procedural NPDES permit requirements. Off-site dischargers would be required to apply for and obtain an NPDES permit. 

k/ Federal Water Quality Criteria may be relevant and appropriate depending on the designated or potential use of the water, the media affected, the purposes of the criteria, and current 

information. (CERCLA §121(d)(2)(B)(i)) Federal Water Quality Criteria for the protection of aquatic life will be relevant and appropriate when environmental factors (e.g., protection of 

aquatic organisms) are being considered. (50 FR 30784 [July 29, 1985]). 

* * * AUGUST 8, 1988 DRAFT * * * 

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EXHIBIT 1-3 (continued) 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Discharge of Treatment System The Best Management Practices program 

Effluent (continued) must: 

B Establish specific procedures for the 

control of toxic and hazardous pollutant 

spills. 

B Include a prediction of direction, rate of 

flow, and total quantity of toxic pollutants 

where experience indicates a reasonable 

potential for equipment failure. 

B Assure proper management of solid and 

hazardous waste in accordance with 

regulations promulgated under RCRA. 

Monitoring Requirements: 

Discharge must be monitored to assure 

compliance. Discharge will monitor: 

B The mass of each pollutant 

B The volume of effluent 

B Frequency of discharge and other 

measurements as appropriate 

Approved test methods for waste constituent 

to be monitored must be followed. Detailed 

requirements for analytical procedures and 

quality controls are provided. 

Sample preservation procedures, container 

materials, and maximum allowable holding 

times are prescribed. 

Discharge to waters of the U.S. j/ 40 CFR 125.104 

40 CFR 122.41(i) 

40 CFR 136.1-136.4 

j/ Section 121 of SARA exempts on-site CERCLA activities from obtaining permits. However, the substantive requirements of a law or regulation must be met. In particular, 

on-site discharges to surface waters are exempt from procedural NPDES permit requirements. Off-site dischargers would be required to apply for and obtain an NPDES permit. 

* * * AUGUST 8, 1988 DRAFT * * * 

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EXHIBIT 1-3 (continued)

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Discharge of Treatment System Comply with additional substantive 

Effluent (continued) conditions such as: 

B Duty to mitigate any adverse effects of any 

discharge; and 

B Proper operation and maintenance of 

treatment systems. 

Direct Discharge to Ocean Discharges causing “unreasonable degradation 

of the marine environment” are not permitted. 

A determination of whether a discharge will 

cause reasonable degradation of the marine 

environment must be made, based on 

consideration of: 

B Quantity, composition, or persistence of 

pollutants to be discharged; 

B Potential transport of pollutants by 

biological, chemical, or physical 

processes; 

B Composition and vulnerability of exposed 

communities; 

B Importance of the receiving water to 

spawning, migratory paths, and surrounding 

biological community; 

B Existence of special aquatic sites; 

B Impact on human health and commercial 

fishing; 

40 CFR 122.41(i) 

Discharge to the marine environment. l/ 40 CFR 125.123(b) 

40 CFR 125.122 

l/ CWA §403 requires that an NPDES permit be issued for discharges into marine waters, including territorial seas, the contiguous zone, and the oceans. (40 CFR 122.2.) A permit is 

not required if point of discharge is on-site. 

* * * AUGUST 8, 1988 DRAFT * * * 

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EXHIBIT 1-3 (continued) 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actionsb/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Direct Discharge to Ocean B Applicable requirements of the Coastal 

(continued) Zone Management Plan (see Vol. 3 of 

this manual); and 

B Marine Water Quality Criteria developed 

under CWA §304(a)(1). 

Comply with the limiting permissible 

concentrations (LPCs) at the mixing zone 

boundary that are established in the permit. 

Discharge to Publicly Owned Discharge of pollutants that pass-through 

Treatment Works (POTW) (off- the POTW without treatment, interfere with 

site activity, see footnote m/) POTW operation, contaminate POTW 

sludge, or endanger health/safety of POTW 

workers, is prohibited. 

Specific prohibitions preclude the 

discharge of pollutants to POTWs that: 

B Create a fire or explosion hazard in the 

POTW; 

B Will cause corrosive structural change to 

POTW; 

B Obstruct flow resulting in interference; 

B Are discharged at a flow rate and/or 

concentration that will result in 

interference; and 

B Increase the temperature of waste-water 

entering the treatment plant that would 

result in interference, but in no case raise 

the POTW influent temperature above 

104EF (40EC). 

40 CFR 125.123(d)(1) 

Indirect discharge to a POTW. 40 CFR 403.5 

m/ Discharge to POTWs is considered an off-site activity (see p. 3-21 for discussion of requirements); therefore, requirements related to discharge to a POTW are not ARARs, but 

are included in this exhibit for reference. Off-site actions must comply with all legally applicable requirements, both substantive and administrative. The concept of “relevant and appropriate” 

is not available for off-site actions. 

* * * AUGUST 8, 1988 DRAFT * * * 

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EXHIBIT 1-3 (continued)

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Discharge to Publicly 

Owned Treatment Works 

(POTW) (continued) 

Discharge of Dredge and 

Fill Material to Waters of 

the U.S. or Ocean Waters 

B Discharge must comply with local POTW pretreatment 

program, including POTW-specific pollutants, spill 

prevention program requirements, and reporting and 

monitoring requirements. 

B RCRA permit-by-rule requirements (including 

corrective action where the NPDES permit was issued 

after November 8, 1984) must be complied with for 

discharges of RCRA hazardous wastes to POTWs. 

The four conditions that must be satisfied before dredge 

and fill is an allowable alternative are: 

B There must be no practical alternative. 

B Discharge of dredged or fill material must not cause a 

violation of State water quality standards, violate any 

applicable toxic effluent standards, jeopardize an 

endangered species, or injure a marine sanctuary. 

B No discharge shall be permitted that will cause or 

contribute to significant degradation of the water. 

B Appropriate steps to minimize adverse effects must be 

taken. 

Determine long- and short-term effects on physical, 

chemical, and biological components of the aquatic 

ecosystem. 

Transport of RCRA hazardous wastes to POTWs by 

truck, rail, or dedicated pipe (i.e., pipe solely 

dedicated for hazardous waste [as defined in 40 CFR 

264] which discharges from within the boundaries of 

the CERCLA site to within the boundaries of the 

POTW). 

Capping, dike stabilization, construction of beams 

and levees, and disposal of contaminated soil, waste 

material or dredged material are examples of 

activities that may involve a discharge of dredged or 

fill material. 

40 CFR 403.5 and local 

POTW regulations 

40 CFR 270.60 

40 CFR 230 

33 CFR 320-330 

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EXHIBIT 1-3 (continued) 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Dredging Removal of all contaminated soil. 

Dredging must comply with Section 10 of the Rivers 

and Harbors Act and U.S. Army Corps of Engineers 

regulations. 

Excavation Movement of excavated materials to new location 

and placement in or on land will trigger land disposal 

restrictions for the excavated waste or closure 

requirements for the unit in which the waste is being 

placed. 

Area from which materials are excavated may require 

cleanup to levels established by closure requirements. 

Gas Collection [CAA requirements to be provided.] 

Ground-Water Diversion Excavation of soil for construction of slurry wall 

may trigger closure or land disposal restrictions. 

Incineration Analyze the waste feed. 

Dispose of all hazardous waste and residues, 

including ash, scrubber water, and scrubber sludge. 

No further requirements apply to incinerators that 

only burn wastes that are listed as hazardous solely 

by virtue of combination with other wastes, and if 

the waste analysis demonstrates that no Appendix VII 

constituent is present that might reasonably be 

expected to be present. 

RCRA hazardous waste placed at site after the 

effective date of the requirements, or placed into 

another unit. 

Dredging in navigable waters of the United States. 

Materials containing RCRA hazardous wastes subject 

to land disposal restrictions are placed in another 

unit. 

RCRA hazardous waste placed at site after the 

effective date of the requirements. 

Materials containing RCRA hazardous waste subject 

to land disposal restrictions are placed into another 

unit. 

RCRA hazardous waste. 

See Closure in this 

Exhibit. 

33 U.S.C. 403 

33 CFR 320-330 

40 CFR 268 (Subpart D) 

See Closure in this 

Exhibit. 

See Consolidation in this 

Exhibit. 

40 CFR 264.341 

40 CFR 264.351 

40 CFR 264.340 

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EXHIBIT 1-3 (continued) 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Incineration (continued) Performance standards for incinerators: RCRA hazardous waste. 40 CFR 264.343 

B Achieve a destruction and removal efficiency of 

99.99 percent for each principal organic hazardous 

constituent in the waste feed and 99.9999 percent 

for dioxins: 

B Reduce hydrogen chloride emissions to 1.8 kg/hr 40 CFR 264.342 

or 1 percent of the BC1 in the stack gases before 

entering any pollution control devices; and 

B Not release particulate in excess of 180 mg/dscm 40 CFR 264.343 

corrected for amount of oxygen in stack gas. 

Monitoring of various parameters during operation 40 CFR 264.343

of the incinerator is required.

These parameters include:

B Combustion temperature;

B Waste feed rate;

B An indicator of combustion gas velocity; and

B Carbon monoxide.

Control fugitive emissions either by: 40 CFR 264.345 

B Keeping combustion zone sealed or 

B Maintaining combustion-zone pressure lower than 

atmospheric pressure 

Utilize automatic cutoff system to stop waste feed 

when operating conditions deviate. 

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EXHIBIT 1-3 (continued) 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Incineration (continued) Special performance standard for incineration of 

PCBs: 

B Achieve a destruction and removal efficiency of 

99.9999 percent; 

B Either 2 second dwell time at 1200 degrees 

CE(±100) and 3 percent excess oxygen in stack 

gas; or 1.5 second dwell time at 1600 degrees C. 

and 2 percent excess oxygen in stack gas; and 

B For non-liquid PCBs, mass air emissions from the 

incinerator shall be no greater than 0.001 g. KB 

per kg of the PCBs entering the incinerator. 

Land Treatment Prior to land treatment, the waste must be treated to 

BDAT levels or meet a no migration standard. 

Ensure that hazardous constituents are degraded, 

transformed, or immobilized within the treatment 

zone. 

Maximum depth of treatment zone must be no more 

than 1.5 meters (5 feet) from the initial soil surface 

and more than 1 meter (3 feet) above the seasonal 

high water table. 

Demonstrate that hazardous constituents for each 

waste can be completely degraded, transformed, or 

immobilized in the treatment zone. 

Minimize run-off of hazardous constituents. 

Maintain run-on/run-off control and management 

system. 

Liquid and non-liquid PCBs at concentrations of 50 40 CFR 761.70 

ppm or greater. 

RCRA hazardous waste being treated or placed into 

another unit. 

40 CFR 264.271 

40 CFR 264.271 

40 CFR 264.271 

40 CFR 264.273 

40 CFR 264.273 

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EXHIBIT 1-3 (continued) 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Land Treatment (continued) 

Operation and Maintenance 

(O&M) 

Placement of Liquid Waste in 

Landfill 

Placement of Waste in Land 

Disposal Unit 

Special application conditions if food-chain crops 

are grown in or on treatment zone. 

Unsaturated zone monitoring. 

Special requirements for ignitable or reactive 

waste. 

Special requirements for incompatible wastes. 

Special testing and location requirements for 

certain hazardous wastes. 

30-year post-closure care to ensure that site is 

maintained and monitored. 

Liquids in Landfills Prohibition: 

No bulk or non-containerized liquid hazardous 

waste or hazardous waste containing free liquids 

may be disposed of in landfills. 

Containers holding free liquids may not be placed 

in a landfill unless the liquid is mixed with an 

absorbent or solidified. 

Land Disposal Restrictions: 

Attain land disposal “treatment standards” before 

putting waste into landfill in order to comply with 

land ban restrictions. A treatment standard can be 

either: (1) a concentration level to be achieved 

(performance-based) or (2) a specified technology 

that must be used (technology-based). If the 

standard is performance-based, any technology 

can be used to achieve the standard. (See 

Treatment when Waste will be Land Disposed.) 

40 CFR 264.276 

40 CFR 264.278 

40 CFR 264.281 

40 CFR 264.282 

RCRA waste #s F020, F021, F022, F023, F026, F027 40 CFR 264.283 

(dioxin-containing wastes). 

Land disposal closure. 40 CFR 264.310 

Placement of a bulk or non-containerized RCRA 40 CFR 264.314 

hazardous waste in a landfill. 

40 CFR 264.314 

Placement of RCRA hazardous waste in a landfill, 40 CFR 268 (Subpart D)

surface impoundment, waste pile, injection well, land

treatment facility, salt dome formation, salt bed

formation, or underground mine or cave.

* * * AUGUST 8, 1988 DRAFT * * * 

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EXHIBIT 1-3 (continued) 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Slurry Wall Excavation of soil for construction of 

slurry wall may trigger land disposal 

restrictions. 

Surface Water Control Prevent run-on and control and collect 

run-off from a 24-hour 25-year storm 

(waste piles, land treatment facilities, 

landfills). 

Prevent over-topping of surface 

impoundment. 

Tank Storage (On-Site) Tanks must have sufficient structural 

strength to ensure that they do not 

collapse, rupture, or fail. 

Waste must not be incompatible with the 

tank material unless the tank is protected 

by a liner or by other jeans. 

Tanks must be provided with secondary 

containment and controls to prevent 

overfilling, and sufficient freeboard 

maintained in open tanks to prevent 

overtopping by wave action or 

precipitation. 

Inspect the following: overfilling control, 

control equipment, monitoring data, waste 

level (for uncovered tanks), tank 

condition, above-ground portions of tanks 

(to assess their structural integrity), and the 

area surrounding the tank (to identify signs 

of leakage). 

Repair any corrosion, crack, or leak. 

Materials containing RCRA hazardous waste subject 

to land disposal restrictions are placed in another 

unit. (See Treatment section for LDR schedule. Also 

see Consolidation, Excavation sections in this 

Exhibit.) 

RCRA hazardous waste treated, stored, or disposed 

after the effective date of the requirements. 

Storage of RCRA hazardous waste (listed or 

characteristic) not meeting small quantity generator 

criteria held for a temporary period greater than 90 

days before treatment, disposal, or storage elsewhere 

(40 CFR 264.10), in a tank(i.e., any portable device 

in which a material is stored, transported, disposed 

of, or handled). A generator who accumulates or 

stores hazardous waste on-site for 90 days or less in 

compliance with 40 CFR 262.34(a)(1-4) is not 

subject to full RCRA storage requirements. Small 

quantity generators are not subject to the 90 day limit 

(40 CFR 262.34(c), (d), and (e)). 

40 CFR 264.251(c).(d) 

40 CFR 264.273(c).(d) 

40 CFR 264.301(c).(d) 

40 CFR 264.221 (c) 

40 CFR 264.190 

40 CFR 264.191 

40 CFR 264.193-194 

40 CFR 264.195 

40 CFR 264.196 

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EXHIBIT 1-3 (continued) 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Tank Storage (On-Site) 

(continued) 

Treatment (in a unit) 

At closure, remove all hazardous waste 

and hazardous waste residues from tanks, 

discharge control equipment, and 

discharge confinement structures. 

Store ignitable and reactive waste so as to 

prevent the waste from igniting or 

reacting. Ignitable or reactive wastes in 

covered tanks must comply with buffer 

some requirements in “Flammable and 

Combustible Liquids Code.” Tables 2-1 

through 2-6 (National Fire Protection 

Association, 1976 or 1981). 

Storage Prohibitions: 

Storage of banned waste must be in 

accordance with 40 CFR 268. When such 

storage occurs beyond one year, the 

owner/operator bears the burden of 

proving that such storage is solely for the 

purpose of accumulating sufficient 

quantities to allow for proper recovery, 

treatment and disposal. 

Design and operating standards for unit 

in which hazardous waste is treated. (See 

citations at right for design and operating 

requirements for specific unit.) 

40 CFR 264.197 

40 CFR 264.198 

40 CFR 268.50 

Treatment of hazardous waste in a unit. 40 CFR 264.190- 264.192 

(Tanks) 

40 CFR 264.221 (Surface 

Impoundments) 

40 CFR 264.251 (Waste Piles) 

40 CFR 264.273 (Land Treatment 

Unit) 

40 CFR 264.343- .345 

(Incinerators)

40 CFR 264.601 (Miscellaneous

Treatment Units)

40 CFR 265.373 (Thermal

Treatment Units)

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EXHIBIT 1-3 (continued) 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Treatment (when Waste will be 

Land Disposed) 

Treatment of waste subject to ban on land 

disposal must attain levels achievable by best 

demonstrated available treatment 

technologies (BDAT) for each hazardous 

constituent in each listed waste, if residual is 

to be land disposed. If residual is to be 

further treated, initial treatment and any 

subsequent treatment that produces residual 

to be treated need not be BDAT, if it does not 

exceed value in CCWE (Constituent 

Concentration in Waste Extract) Table, for 

each applicable water. (See 51 FR 40642, 

November 6, 1986.) 

Disposal of contaminated soil and debris resulting 

from CERCLA response actions or RCRA 

corrective actions is not subject to land disposal 

prohibitions and/or treatment standards for 

solvents, dioxins, or California list wastes until 

November 8, 1990 (and for certain first third 

wastes until August 8, 1990). 

All wastes listed as hazardous in 40 CFR Part 261 

as of November 8, 1984, except for spent solvent 

wastes and dioxin-containing wastes, have been 

ranked with respect to volume and intrinsic 

hazards, and are scheduled for land disposal 

prohibition and/or treatment standard 

40 CFR 268.10 

40 CFR 268.11 

40 CFR 268.12 

40 CFR 268.41 

40 CFR 268 (Subpart D) 

51 FR 40641 

52 FR 25760 

determinations as follows: 

Solvents and dioxins 

California list wastes 

One-third of all ranked and 

hazardous wastes 

Underground injection of 

solvents and dioxins and 

California list wastes 

CERCLA response action and 

RCRA corrective action soil 

and debris 

Two-thirds of all ranked and 

listed hazardous wastes 

All remaining ranked and 

listed hazardous wastes 

identified by characteristic under RCRA section 

3001 

Any hazardous waste listed 

or identified under RCRA 

section 3001 after 

November 8, 1984 

Nov. 8, 1986 

July 8, 1987 

Aug. 8, 1988 

Aug. 8, 1988 

Nov. 8, 1988 

July 8, 1989 

May 8, 1990 

Within 6 mos. 

of the date of 

identification 

or listing. 

* 

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EXHIBIT 1-3 (continued) 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Treatment (when Waste will be 

Land Disposed) (continued) 

Underground Injection of 

Wastes and Treated Ground 

Water 

BDAT standards for spent solvent wastes 

and dioxin-containing wastes are based on 

one of four technologies or combinations: 

for waste waters, (1) steam stripping, (2) 

biological treatment, or (3) carbon 

absorption [alone or in combination with 

(1) or (2)]; and for all other wastes, (4) 

incineration. Any technology may be used, 

however, if it will achieve the 

concentration levels specified. 

UIC program prohibits: 

B Injection activities that allow movement 

of contaminants into underground 

sources of drinking water which may 

result in violations of MCLs or adversely 

affects health. 

B Construction of new Class IV wells, and 

operation and maintenance of existing 

wells. 

Class IV wells are banned except for 

reinjection of treated ground water into the 

same formation from which it was 

withdrawn, as part of a CERCLA cleanup 

or RCRA corrective action. 

Approved UIC program is required in States listed 

under SDWA section 1422. (All States have been 

listed.) Class I wells and Class IV wells are the 

relevant classifications for CERCLA sites. Class I 

wells are used to inject hazardous waste, beneath 

the lowermost formation containing, within one 

quarter mile, an underground source of drinking 

water (USDW). n/ Class IV wells are used to inject 

hazardous or radioactive waste into or above a 

formation which contains, within one quarter mile 

of the well, an underground source of drinking 

water. 

40 CFR 268.30 

RCRA Sections 3004(d)(3), 

(e)(3) 

42 U.S.C. 6924 (d)(3), 

(e)(3) 

40 CFR 144.12 

40 CFR 144.13 

40 CFR 144.13(c) 

n/ An underground source of drinking water (USDW) is a non-exempted aquifer or its portion which: (1) supplies any public water system, or (2) which contains a sufficient quantity 

of ground water to supply a public water system and currently supplies drinking water for human consumption or contains fewer than 10,000 mg/l total dissolved solids. (40 CFR 144.3.) 

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EXHIBIT 1-3 (continued) 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Background Injection of 

Wastes and Treated Ground 

Water (continued) 

The Director of the UIC program in a state 40 CFR 144.16

may lessen the stringency of 40 CFR

144.52 construction, operation, and

manifesting requirements for a well if

injection does not occur into, through, or

above a USDW or if the radius of

endangering influence (see 40 CFR

146.06(c)) is less than or equal to the

radius of the well.

B Report non-compliance orally within 24 Class I wells. 40 CFR 144.28(b)

hours. 40 CFR 144.51(b)

B Prepare, maintain, and comply with

plugging and abandonment plan.

Monitor Class I wells by: Class I wells are used to inject hazardous waste, beneath 40 CFR 144.28(g)(1) 

the lowermost formation containing, within one quarter 

B frequent analysis of injection fluid; mile, an underground source of drinking water 

(USDW). 

B continuous monitoring of injection 

pressure, flow rate, and volume; and 

B installation and monitoring of groundwater monitoring wells. 

Applicants for Class I permits must: 

B Identify all injection wells within the 

area of review. 

B Task action as necessary to ensure that 

such well are properly sealed, 

completed, or abandoned to prevent 

contamination of USDW. 

Criteria for determining whether an aquifer 

may be determined to be an exempted 

aquifer include current and future use, 

yield, and water quality characteristics. 

40 CFR 144.55 

40 CFR 146.4 

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EXHIBIT 1-3 (continued) 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Underground Injection of 

Wastes and Treated Ground 

Water (continued) 

Case and cement all Class I wells to prevent 

movement of fluids into USDW, taking 

into consideration well depth, injection 

pressure, hole size, composition of injected 

waste, and other factors. 

Conduct appropriate geologic drilling logs 

and other tests during construction. 

Injection pressure may not exceed a 

maximum level designed to ensure that 

injection does not initiate new fractures or 

propagate existing ones and cause the 

movement of fluids into a USDW. 

Continuous monitoring of injection 

pressure, flow rate, and volume, and 

annual pressure, if required. 

Demonstration of mechanical integrity is 

required every 5 years. 

Ground-water monitoring may also be 

required 

Comply with State underground injection 

requirements. 

Hazardous waste to be injected is subject to 

land ban regulations. (See section 4.2.2.1 

of this manual.) Treated ground water that 

meets the definition of hazardous waste 

and is to be injected also is subject to land 

ban regulations. 

(See above) 40 CFR 144.28(e)(1) 

40 CFR 146.12(d) 

40 CFR 146.13 

40 CFR 147 

40 CFR 268.2 

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EXHIBIT 1-3 (continued) 

SELECTED ACTION-SPECIFIC POTENTIAL APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS a/ 

Actions b/ Requirements Prerequisites for Applicability c/ ,d/ Citation 

Waste Pile Use a single liner and leachate collection RCRA Hazardous waste, non-containerized 40 CFR 264.251 

system. accumulation of solid, nonflammable hazardous waste 

that is used for treatment or storage. 

Waste put into waste pile subject to land 40 CFR 268.2 

ban regulations (see Appendix of this 

manual). 

* * * AUGUST 8, 1988 DRAFT * * * 
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1.2.4 GENERAL PROCEDURE FOR IDENTIFICATION AND ANALYSIS OF ARARS 

ARARs should be identified at several points in the remedy selection process. 

They must be identified on a site-specific basis, and therefore as additional 

information is developed about the site, including the specific chemicals at the 

site, special features of the site location, and the actions that are being 

considered as remedies, more ARARS will progressively be identified and the list of 

“potential” ARARs further refined. The lead and support agency (Federal or State 

Superfund program) are responsible for the identification of ARARs with assistance 

from other EPA/State program offices and other Federal/State agencies a appropriate 

(including information and technical assistance). Regions must work closely with 

States, who are responsible for indentifying State ARARs in a timely manner, to 

ensure that State ARARs are identified at the critical points in the remedial 

planning process. Regions must also work closely with States operating Federally 

authorized programs under RCRA, the Clean Water Act (CWA), the Clean Air Act, or 

other statutes that are sources of potential ARARs.17 

Many statutes and the regulations promulgated under them contain requirements 

that may be applicable or relevant and appropriate. Exhibit 1-9 at the end of this 

chapter lists the statutes under which potential ARARs may have been promulgated. 

In order to provide guidance on ARARs identification, this manual describes in 

detail the steps in the thought process involved in determining whether a 

requirement is applicable or relevant and appropriate. However, as experience is 

gained in identification, the determination may be streamlined to consideration of 

key factors. For example, if the hazardous substance at the site is identical to a 

RCRA listed hazardous waste, but its source is unknown, RCRA requirements will not 

be applicable but may be relevant and appropriate if the action taken is regulated 

by RCRA. 

The decision framework for ARARs determination, as described in this 

manual, has five steps: 

(1) The first step in the process, using the procedures described in this 

guidance in Exhibit 1-4 and accompanying text is to identify potential 

ARARs. For chemical-specific requirements under RCRA, CWA, and SDWA, 

location-specific requirements under several statutes, and 

action-specific requirements under RCRA, CWA, and SDWA, potential 

requirements have already been identified and are listed in Exhibits 

1-1, 1-2, and 1-3, respectively. These exhibits will be expanded in 

subsequent drafts of this manual to include the requirements of 

additional environmental laws. 

(2) Using the procedures described in the flowchart in Exhibit 1-5 and 

accompanying text, analyze the potential ARARs to determine whether 

_______________________ 

17 Under the Clean Water Act, States may be authorized to implement the permit 

requirements of the National Pollution Discharge Elimination System (NPDES); under 

the Clean Air Act, national ambient air quality standards are implemented, 

maintained, and enforced through State Implementation Plans (SIPs). 

* * * AUGUST 8, 1988 DRAFT * * * 

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they are actually applicable to the particular conditions at the site. 

(3) If the requirements are not applicable, using the procedures outlined in 

the flowchart in Exhibit 1-7 and discussed in section 1.2.4.3, analyze 

them to determine whether they are relevant and appropriate to the 

particular conditions at the site. 

(4) In developing the site risk assessment, which is used to determine 

protectiveness, criteria, guidances, advisories, and proposed standards 

may be used in addition to ARARs. These to-be-considered criteria, 

guidances, advisories and proposed standards are not promulgated 

requirements (and are not potential ARARs), but are an important 

component of the protectiveness determination required by the statutes. 

The Superfund Public Health Evaluation Manual provides guidance on 

conducting site-specific risk assessments and the use of TBCs. 

(5) Determine whether circumstances are present that might justify a waiver 

of any otherwise applicable or relevant and appropriate requirements. 

Subsequent to the initiation of the remedial action new standards based on new 

scientific information or awareness may be developed and these standards may differ 

from the cleanup standards on which the remedy was based. These new ARARs or TBCs 

should be considered as part of the review conducted at least every five years under 

CERCLA §121(c) for sites where hazardous substances remain on-site. The review 

requires EPA to assure that human health and the environment are being protected by 

the remedial action. Therefore, the remedy should be examined in light of any new 

standards that would be applicable or relevant and appropriate to the circumstances 

at the site or pertinent new TBCs, in order to ensure that the remedy is still 

protective. In certain situations, new standards or the information on which they 

are based may indicate that the site presents a significant threat to health or 

environment. If such information comes to light at times other than at the five-year 

reviews, the necessity of acting to modify the remedy should be considered at such 

times. 

An overview of the general procedure for identifying ARARs at different points 

in the remedial planning process is summarized in Exhibit 1-4. Identification of 

ARARs should begin following the scoping and site characterization phase of the 

Remedial Investigation, when sufficient information has been developed so that 

initial Judgments can be made about the chemicals present at the site and any 

special characteristics of the site location that must be taken into account. As 

Exhibit 1-4 indicates, the first steps in the identification of ARARs, following the 

determination of chemicals present and the determination of special location 

characteristics, should be a review of the matrices in this manual for 

chemical-specific and location-specific ARARs. Action-specific ARARs will first be 

considered during the development of remedial alternatives. Each of these steps is 

described in detail in the balance of this section and in sections 1.3 and 1.4. 

* * * AUGUST 8, 1988 DRAFT * * * 

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EXHIBIT 1-4

Procedure for Identifying ARARs

* * * AUGUST 8, 1988 DRAFT * * * 

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EXHIBIT 1-4 (cont’d)

Procedure for Identifying ARARs

C Note that chemical-specific ARARs will generally be the same for all alternatives, 

and need not be repeat to each alternative. A single list of chemical-specific ARARs 

should be developed during the site characterization phase of the Remedial 

Investigation and modified during the remedy selection process. 

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1.2.4.1 Procedure for Identifying ARARs 

Chemical-Specific ARARs 

Those chemicals identified at the site should be compared to the chemicals 

listed in Exhibit 1-1, which lists chemical-specific standards under several 

statutes. (Until Exhibit 1-1 is completed with chemical-specific standards from all 

environmental statutes, it will be necessary to supplement the matrix in Exhibit 1-1 

with a review of standards in other statutes, obtained by consulting Exhibit 1-9.) 

If a chemical-specific standard is found in Exhibit 1-1, note the statute and its 

jurisdictional prerequisites under which the standard was established. This 

information will be necessary for determining if the chemical-specific standard is 

applicable or relevant and appropriate. (Although in most cases a standard found 

under the “potential ARAR” section of the matrix will be found to be an ARAR for 

site-specific chemicals and exposure pathways, Remedial Project Managers (RPMs) 

should follow the procedure for determining whether these probable ARARs are 

actually applicable or relevant and appropriate to a given site, as outlined in 

Sections 1.2.4.2 and 1.2.4.3 of this manual.) If more than one standard is found for 

a particular chemical, the most stringent should generally be identified as the 

likely ARAR. Finally, the standards identified as probable ARARs should all be 

analyzed according to the procedures outlined in the Superfund Public-Health 

Evaluation Manual. When ARARs do not exist for a particular chemical or when the 

existing ARARs are not protective of human health or the environment, advisories 

found in the to-be-considered category should also be used. 

Location-Specific ARARs 

Similarly, following the completion of Phase I of the Remedial Investigation, 

site characterization, any special characteristics of the site (e.g., presence of 

wetlands, habitat of endangered species, or historically significant features) 

should be compared to the list of location-specific requirements in Exhibit 1-2. If 

a location-specific requirement is found in Exhibit 1-2, the statute and its 

jurisdictional requirements should be noted, so that the additional analysis 

described in sections 1.2.4.2 and 1.2.4.3 of this manual can be completed. In noting 

the statutory and regulatory requirements, determine whether the statute is 

prohibitory (e.g. prohibits new activity) or in retroactive (e.g. requires that 

existing conditions be rectified). 

Action-Specific ARARs 

Action-specific requirements probably will not be identified for most sites 

until the development of alternatives in the Feasibility Study. Additional 

action-specific requirements should be identified and refined as appropriate during 

remedial design, when specific information regarding size and operation of treatment 

facilities will be available. Exhibit 1-4 indicates this difference by separating 

the identification of action-specific ARARs from the identification of 

chemical-specific and location-specific ARARs. Once possible action alternatives 

have been developed and screened to 

* * * AUGUST 8, 1988 DRAFT * * * 

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a workable number, they should be broken down into operable units and the type of 

actions that are covered by potentially applicable or relevant and appropriate 

statutes should be reviewed (e.g., disposal into a POTW of non-volatile substances 

probably will not involve Clean Air Act (CAA) considerations, therefore potential 

CAA requirements need not be reviewed further for that specific action). 

Following the initial identification, the possible action alternatives should 

be compared to Exhibit 1-3 (Action-Specific Requirements) in this manual. Currently, 

this matrix includes RCRA and CWA action-specific requirements. 

1.2.4.2. General Procedure for Determining if a Requirement is Applicable 

This manual describes the process for determining applicability. The procedure 

is no different from that involved in determining the applicability of laws to any 

activity, but is provided here to promote a consistent approach to identifying 

applicable requirements. The basic criterion for an applicable requirement is that 

it directly and fully addresses or regulates the hazardous substance, pollutant, 

contaminant, action being taken, or other circumstances at a site. Applicability is 

established by the terms of the laws and regulations promulgating the requirements 

being analyzed. To determine whether a particular requirement would be legally 

applicable, it is necessary to refer to the specific terms or jurisdictional 

prerequisites of the statute or regulation. All pertinent jurisdictional 

prerequisites must be met for the requirement to be applicable. These jurisdictional 

prerequisites include: 

" Who, as specified by the statute or regulation, is subject to its 

authority;18 

" The types of substances or activities listed as falling under the 

authority of the statute or regulation; 

" The time period for which the statute or regulation is in effect; and 

" The types of activities the statute or regulation requires, limits, or 

prohibits. 

These statutory or regulatory provisions must then be compared to the pertinent 

facts about the CERCLA site and the CERCLA response actions under consideration, an 

outlined by Exhibit 1-5. To determine if a requirement is applicable, examine its 

language and determine whether it would otherwise legally apply to the site or the 

response action. This procedure may need to be undertaken for each potentially 

applicable requirement and for each potential action alternative (identification of 

action-specific ARARs will be 

18 Although the lead agency may be managing the CERCLA site, and for the 

purposes of the ARARs analysis would be the operator, it is not an owner/operator 

for the purposes of CERCLA Sections 107 or 101(20). 

* * * AUGUST 8, 1988 DRAFT * * * 

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completed during the detailed analysis of alternatives), since different 

requirements, even those within the same group of regulations, may have different 

jurisdictional prerequisites. In addition, the analysis should be repeated for each 

different operable unit, technology, or component of the remedial action. 

Exhibit 1-5 provides an outline of the general procedure for determining 

if a requirement is applicable. Based on the site scoping and characterization, or 

for action-specific ARARs the initial screening phase of the Remedial 

Investigation/Feasibility Study (and review during remedial design), the pertinent 

facts concerning the site should be identified. Many of these facts, such as the 

chemicals present, special characteristics of the location of the site, and the type 

of action under consideration for the site, will already have been determined in 

connection with the identification of potential ARARs. Other facts, such as the 

approximate date when substances were placed at the site, may also be necessary to 

determine if the requirement applies. Different categories of information will be 

necessary to determine the jurisdictional prerequisites of different requirements, 

and not all categories listed in Exhibit 1-5 will be pertinent in all cases. Exhibit 

1-6 indicates where subsequent chapters of this manual discuss the jurisdictional 

prerequisites of particular requirements. 

In summary, once the pertinent facts have been determined, they should be 

compared with the jurisdictional prerequisites of the requirement. These 

jurisdictional prerequisites can be found in Exhibits 1-1, 1-2, and 1-3 and are 

explained further in subsequent chapters of this manual. They also appear in the 

text of the relevant statute or regulation. If the jurisdictional prerequisites are 

met, the requirement is applicable. If not, the next step is to consider whether the 

requirement is relevant and appropriate. 

* * * AUGUST 8, 1988 DRAFT * * * 

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Exhibit 1-5 

General Procedure for Determining 

If Requirement is Applicable 

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EXHIBIT 1-6

ARAR JURISDICTIONAL PREREQUISITES

List of Possible 

Chemical-Specific ARARs ARARs (pages) 

RCRA MCLs 1-16

SDWA MCLs 1-16

CWA WQCs 1-17 to 1-23

Location-Specific ARARs 

RCRA

* National Historic

Preservation Act

* Endangered Species Act

Clean Water Act

* Wilderness Act

* Fish and Wildlife 

Coordination Act

* Wild and Scenic Rivers Act

* Coastal Zone Management Act

40 CFR Part 6 Appendix A

List of Possible 

ARARs (pages) 

Fault Zone, 1-27

Flood Plain, 1-27

Salt Dome

Formation, 1-27

1-27 

1-27 

1-28 

1-28 

1-28 

1-28 

1-28 

1-28 

Jurisdictional 

Prerequisites/Text 

Discussion (pages) 

2-4 thru 2-14

2-23 thru 2-27

4-3, 4-8 

3-10 

Jurisdictional 

Prerequisites/Text 

Discussion (pages) 

1-25 

1-25 

1-25 

1-25 

1-25 

1-26 

1-26 

1-26 

1-26 

1-26 

1-26 

* These and other statutes will be addressed in a later addition of this manual. 

* * * AUGUST 8, 1988 DRAFT * * * 

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EXHIBIT 1-6 (continued)

ARAR JURISDICTIONAL PREREQUISITES

Action-Specific ARARs 

RCRA Capping 

Closure 

Container Storage 

New Landfill 

New Surface Impoundment 

Dike Stabilization 

Excavation, Ground-Water 

Diversion 

Incineration 

Land Treatment 

Land Disposal 

Slurry Wall 

Tank Storage 

Treatment 

Waste Pile 

CWA Discharge to Water of US 

Direct Discharge 

to Ocean 

Discharge to POTW 

Dredge/Fill 

SDWA Underground Injection 

Control 

List of Possible ARARs 

ARARs (pages) 

1-31, 1-32

1-32, 1-33

1-34, 1-35

1-35, 1-36

1-37

1-38

1-44

1-44, 1-45, 1-46

1-46, 1-47

1-34, 1-47, 1-50, 1-51

1-48

1-48, 1-49

1-49, 1-50, 1-51

1-54

1-39, 1-40, 1-41

1-41, 1-42

1-42, 1-43

1-43, 1-44

1-51, 1-52, 1-53

Jurisdictional 

Prerequisites/Text 

Discussion (pages) 

2-15

2-15, 2-19

2-12, 2-13

2-15, 2-18

2-15, 2-18

2-15

2-15, 2-21

2-14

2-14, 2-15, 2-18

2-15, 2-18

2-15, 2-21

2-12, 2-13

2-14

2-15, 2-18

3-2, 3-3, 3-4

3-2, 3-3, 3-4, 3-5

3-5, 3-6, 3-21, 3-22

3-2, 3-3, 3-6, 3-28,

3-29

4-9, 4-10, 4-11

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1.2.4.3 General Procedure for Determining if a Requirement is Relevant and 

Appropriate 

A particular requirement could be “relevant and appropriate” even if it is not 

“applicable.” The basic considerations are whether the requirement (1) regulates or 

addresses problems or situations sufficiently similar to those encountered at the 

CERCLA site (i.e., relevance), and (2) is appropriate to the circumstances of the 

release or threatened release, such that its use is well suited to the particular 

site. Determining whether a requirement is relevant and appropriate is site-specific 

and must be based on best professional judgment. This judgment is based on a number 

of factors, including the characteristics of the remedial action, the hazardous 

substances present at the site, and the physical circumstances of the site and of 

the release, as compared to the statutory or regulatory requirement. All 

requirements found to be applicable or relevant and appropriate must be complied 

with. 

Exhibit 1-7 outlines the general procedure and factors to consider in 

determining whether a requirement is relevant and appropriate. The factors listed in 

the left-hand column-relate to the problem that the requirement is designed to 

address or to the goal that the requirement is intended to attain; the factors in 

the right-hand column relate to the problem present at the CERCLA site and the 

objective of the remedial action. The relative importance of these factors will vary 

from site to site depending on the kind of ARARs under consideration (chemical-, 

action-, or location-specific), and on site-specific conditions. 

Both sets of factors in Exhibit 1-7 should be defined narrowly. For example, 

the goal of both RCRA corrective action requirements and the CERCLA cleanup might be 

defined as protection of human health and the environment. However, in analyzing 

whether the corrective action requirements are relevant and appropriate, such a 

definition of goals would be too broad. Instead, the goal of the RCRA corrective 

action requirement might be characterized as the cleanup of a plume of ground-water 

contamination from a distinct source. This would be compared to the goal of the 

CERCLA action, such as cleanup of area-wide ground-water contamination. 

Determining whether a requirement is both relevant and appropriate is 

essentially a two step process. First, the determination focuses on whether a 

requirement is relevant based on a comparison between the action, location, or 

chemicals, covered by the requirement and related conditions of the site, the 

release, or the potential remedy. This step should be a screen which will determine 

the relevance of the potentially relevant and appropriate requirement under 

consideration. The second step is to determine whether the requirement is 

appropriate by further refining the comparison, focusing on the 

nature/characteristics of the substances, the characteristics of the site, the 

circumstances of the release, and the proposed remedial action. 

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Exhibit 1-7 

General Procedure for Determining 

if Requirement is Relevant and Appropriate 

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1-67 

A requirement may be relevant but not appropriate for the specific site. Only 

those requirements that are determined to be both relevant and appropriate must be 

complied with. A requirement may be found relevant because it closely matches the 

site on some of the factors listed in Exhibit 1-7, but may not be appropriate 

because the site circumstances differ significantly on other key factors. While some 

requirements within a regulation will be relevant and appropriate, other 

requirements in that same regulation may be relevant (in that they address in a 

broad sense the same problem as is faced at the CERCLA site), but not appropriate 

because the requirement is not well-suited to the circumstances at the CERCLA site, 

or to the threat to human health and the environment posed by the circumstances of 

the release. 

In comparing the requirement and the site circumstances or the circumstances 

of the release, some of the following factors from Exhibit 1-7 and related 

considerations might be particularly important in determining whether a requirement 

is appropriate: 

" the purpose of the requirement; 

" the physical characteristics (size/nature) of the site and 

contamination; 

" the character and circumstances of the release at the site compared to 

what the requirement was intended to address and requires; 

" the substances covered by the requirement (e.g., the chemical 

characteristics, form or concentration of the contamination or release 

for which the requirement was designed); 

" the duration of the activity; 

" the basis for a waiver or exemption; 

In addition, one should consider: 

" whether another requirement is available that more fully matches the 

circumstances at the site; and 

" where EPA has explicitly decided that a requirement is not appropriate 

to a situation, that requirement will not be appropriate for such a 

situation at a CERCLA site. 

Portions of a requirement may be relevant and appropriate even if a 

requirement in its entirety is not. For example, parts of the requirements for 

design and operation of a waste pile found in 40 CFR §264.251, such as the 

requirement to use a liner of sufficient strength and thickness to prevent failure 

due to pressure gradients, might be considered relevant and appropriate, while that 

portion of the design requirements calling for installation of a liner covering all 

surrounding earth likely to be in contact 

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with the waste might not be appropriate if such earth is already contaminated and 

the eventual remedy is to remove all of that earth. 

When the analysis results in a determination that a requirement is both 

relevant and appropriate, such a requirement must be complied with to the same 

degree as if it were applicable. 

Included below are several examples of situations where requirements might be 

relevant but not appropriate: 

1. A requirement may be relevant to the particular site because it addresses 

a similar type of facility or entity, but not appropriate because of differences in 

the duration of the activity. For example, the RCRA requirements for secondary 

containment of tanks and other storage units may not be appropriate for temporary, 

short-term storage. 

2. Many RCRA requirements are designed to apply to specific types of 

discrete units. These requirements may be relevant because they address the same 

wastes and activities, such as closure of hazardous wastes in a landfill, but may be 

inappropriate because of the physical size of the contamination at the CERCLA site. 

For example, although they may be appropriate for smaller areas, the requirements 

for capping may not be appropriate in some circumstances for large dispersed areas 

of low-level soil contamination such as may be found at many large municipal 

facilities. 

3. A requirement may also be found relevant but not appropriate when another 

requirement is available that has been designed to apply to that specific situation, 

reflecting an explicit decision about the requirements appropriate to that 

situation. For example, the Agency has made a determination under RCRA that Subtitle 

C is not an appropriate means of regulating on a national basis certain mining waste 

from the extraction or beneficiation of ores and minerals (51 FR 24496, July 3, 

1986). Therefore, since that explicit, formal determination has been made, Subtitle 

C requirements will generally not be relevant and appropriate to these wastes from 

extraction or beneficiation of ores and minerals. 

4. RCRA regulations affecting disposal or landfill closure require the site 

to be capped with a final cover designed and constructed to provide long-term 

minimization of the migration of liquids through the capped area. However, such 

requirements related to the need for an impermeable cover may not be appropriate in 

some circumstances if the wastes are largely immobile, and there will be no direct 

contact threat. 

5. A location-specific requirement may prohibit prospectively the deposit of 

certain substances in a floodplain. This prohibition may be appropriate with regard 

to remedial options in considering whether to create new disposal units in the 

floodplain. However, it is not likely to be appropriate to remove large existing 

landfills from the floodplain. 

6. MCLs (under RCRA and under SDWA) are relevant and appropriate to 

remediation of ground water that may be used for drinking. However, MCLs are 

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generally not appropriate where ground water is not potentially drinkable due to 

widespread naturally occurring contamination or due to location in a large industrial 

area with substantial contamination where there is no actual, planned, or potential 

use of ground water for drinking.19 In addition, MCLs are generally not appropriate 

for site-specific circumstances where a well would never be placed and ground water 

would thus never be consumed (e.g., a twenty-foot strip of land between the toe of a 

landfill and river, if there is no surface water contamination resulting from man-made 

ground-water contamination at the site). 

Not all of the specific factors listed in Exhibit 1-7 will need to be considered in 

determining whether a requirement is relevant and appropriate. Only the pertinent 

factors need be considered. For chemical-, location-, and action-specific 

requirements, the following factors should generally be considered: 

Chemical-Specific 

Specific Goal and Objective of 

Requirement 

Purpose of Requirement in Program 

of Origin 

Substances Covered by Requirement 

Media and Entities Regulated/ 

Affected/Protected by Requirement 

Variances, Waivers or Exemptions of 

Requirements 

Requirement’s Consideration of Use or 

Potential Use of Affected Resource 

Specific Goals and Objective of 

CERCLA Remedial Action at 

Site 

Use of Requirement at Site 

Related to Purpose 

Substances Involved at Site 

Media and Entities Potentially/ 

Actually Contaminated/ 

Affected by Cleanup 

Circumstances at Site - - Do they 

Fit Requirements for 

Variance, Waiver, or 

Exemption or Otherwise 

Contradict some Implicit 

Assumption Underlying the 

Requirement 

Use or Potential Use of Resource 

Involved 

19 Ground water in such industrial area (where there is no actual, planned, 

or potential use of ground water for drinking) would still be classified as Class 

IIB aquifers, although MCLs may be determined to be relevant and appropriate. 

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Location-Specific 

Specific Goal and Objective of 

Requirement 

Purpose of Requirement in Program 

of Origin 

Type of Physical Location Regulated or 

Affected 

Action or Activity Prohibited/Required 

by Requirement 

Activity 

Variances, Waivers or Exemptions 

Requirement’s Consideration of Use or 

Potential Use of Affected Resource 

Action-Specific 

Specific Goal and Objective of 

Requirement 

Purpose of Requirement in Program 

of Origin 

Substances Covered by Requirement 

Media and Entities Regulated/ 

Affected/Protected by Requirement 

Action or Activity Regulated by 

Requirement 

Variances, Waivers or Exemptions 

Type and Size of Facility, Unit, Release 

(e.g. Size of Release) Regulated or 

Affected 

Specific Goals and Objective of 

CERCLA Remedial Action at 

Site 

Use of Requirement at Site 

Related to Purpose 

Location Involved 

Remedial Action Contemplated at 

Site and Duration of 

Circumstances at Site -- Do they 

Fit Requirements for 

Variance, Waiver, or 

Exemption 

Use or Potential Use of Resource 

Involved 

Specific Goals and Objective of 

CERCLA Remedial Action at 

Site 

Use of Requirement at Site 

Related to Purpose 

Substances Involved at Site 

Media and Entities Potentially/ 

Actually Contaminated/ 

Affected by Cleanup 

Remedial Action Contemplated at 

Site and Duration of 

Activity 

Circumstances at Site -- Do they 

Fit Requirements for 

Variance, Waiver, or 

Exemption 

Type and Size of Facility Unit, 

Release Involved 

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Requirement’s Consideration of Use or Use or Potential Use of Resource 

Potential Use of Affected Resource Involved 

1.3 CERCLA WAIVER CRITERIA FOR ARARS 

CERCLA §121 provides that under certain circumstances an otherwise applicable or 

relevant and appropriate requirement may be waived. These waivers apply only to 

meeting ARARs with respect to remedial actions on-site; other statutory requirements, 

such as that remedies be protective of human health and the environment, cannot be 

waived. A waiver must be invoked for each ARAR that will not be attained or exceeded. 

The waivers provided by CERCLA §121(d)(4), some circumstances under which each waiver 

might be invoked, and criteria for invoking the waivers are discussed below. 

1. Interim Measures 

[T]he remedial action selected is only part of a total remedial action that will 

attain such level or standard of control when completed.(CERCLA §121(d)(4)(A).) 

This waiver may be applicable to interim measures that are expected to be 

followed within a reasonable time by complete measures that will attain ARARs. The 

interim measures waiver may apply to sites at which a final site remedy is divided 

into several smaller actions. 

For example, the selected remedy at a site may include excavation and treatment 

of the source. However, the treatment method may require treatability testing or time 

for set-up or construction. During this time, an interim measure involving 

stabilization, such as a cap, of the source may be appropriate. In such a 

circumstance, the interim measure waiver would allow the present stabilization actions 

at the site to constitute the initial components of a phased remedial response. These 

actions would not be required to attain landfill closure ARARs under RCRA because the 

response would not be complete. 

The factors that may be appropriate for invoking this waiver include: 

" Potential for exacerbation of site problems. The interim measure should not 

directly cause additional migration of contaminants, complicate the site 

cleanup, or present an immediate threat to public health or the 

environment; and 

" Non-interference with final remedy. The interim measure selected must not 

interfere with, preclude, or delay the final remedy, consistent with EPA’s 

priorities for taking further action. 

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2. Greater Risk to Health and the Environment. 

[C]ompliance with such requirement at the facility will result in greater risk to 

human health and the environment than alternative options. (CERCLA 

§121(d)(4)(B).) 

This waiver may be invoked for an ARAR that can only be met by using remedial 

action that, because it meets that ARAR, poses greater risks than a similar remedial 

alternative that does not meet that ARAR. This waiver could be used to “salvage” a 

remedial action option that would cause greater environmental damage or health risks 

solely because that option had to meet all ARARs, especially where one ARAR causes the 

problem. For example, attaining the ambient concentration level for PCBs spread 

throughout river sediment might require widespread dredging of the sediments, causing 

an unacceptable release of the pollutant to the water body and damaging or disrupting 

the ecosystem. Waiving the ARAR for ambient PCB concentrations in the sediment would 

eliminate the need to conduct such harmful dredging. 

Meeting an ARAR could also pose greater risks to workers or residents. For 

example, excavation of a particularly toxic, volatile, or explosive waste to meet an 

ARAR could pose high short-term risks. If protective measures were not practicable, 

then use of this waiver might be appropriate. 

Specific factors that may be considered in invoking the waiver for preventing 

greater risks include: 

" Magnitude of adverse impacts. The risk posed or the likelihood of present 

or future risks posed by the remedy using the waiver should be 

significantly less than that posed by the totally compliant remedy posing 

the risk; 

" Duration of adverse impacts. The more long lasting the risks from the 

totally compliant remedy, the more this waiver becomes appropriate; and 

" Reversibility of adverse impacts. This waiver is especially appropriate if 

the risks posed by meeting the ARAR could cause irreparable damage. 

Remedies protective of human health and the environment but not meeting all ARARs 

should be compared to the remedy meeting ARARs that causes the minimum adverse 

impacts. The additional public health and environmental benefits of not meeting all 

ARARs must be weighed against the adverse impacts caused by not doing so. Only the 

ARARs that cause the greater risk are eligible to be waived. 

3. Technical Impracticability 

[C]ompliance with such requirement is technically impracticable from an 

engineering perspective. (CERCLA §121(d)(4)(C).) 

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The term “impracticable” implies an unfavorable balance of engineering 

feasibility and reliability. The term “engineering perspective” used in the statute 

implies that cost, although a factor, is not generally the major factor in the 

determination of technical impracticability. A remedial alternative that is feasible 

might be deemed technically impracticable if it could only be accomplished at an 

inordinate cost. For instance, attainment of an ARAR might be possible, but constant 

maintenance problems might require such an exorbitant amount of money that the 

alternative would not be considered reliable, and thus would be infeasible from an 

engineering perspective. 

Furthermore, the use of the term “impracticable” implies that remedies 

that are not demonstrated but that are thought to be feasible cannot be 

eliminated because of this waiver. Thus, this waiver may be used for cases 

where: (1) neither existing nor innovative technologies can reliably attain 

the ARAR in question, or (2) attainment of the ARAR in question would be 

illogical or infeasible from an engineering perspective. 

The technical impracticability waiver may be invoked when either of the following 

specific criteria are met: 

" Engineering feasibility. The current engineering methods necessary to 

construct and maintain an alternative that will meet the ARAR cannot 

reasonably be implemented. 

" Reliability. The potential for the alternative to continue to be protective 

into the future is low, either because the continued reliability of 

technical and institutional controls is doubtful, or because of inordinate 

maintenance costs. 

4. Equivalent Standard of Performance 

[T]he remedial action selected will attain a standard of performance that is 

equivalent to that required under the otherwise applicable standard, requirement, 

criteria, or limitation, through use of another method or approach. (CERCLA 

§121(d)(4)(D).) 

This waiver may be used in situations where an ARAR stipulates use of a 

particular design or operating standard, but equivalent or better remedial 

results (e.g., contaminant levels or reliability) could be achieved using an 

alternative design or method of operation. For instance, an alternative may 

involve reduction of either the mobility or toxicity of a hazardous substance 

through specific form of treatment. The waiver may be invoked where a substitute form 

of treatment from that specified or required in the ARAR (e.g., fixation instead of 

incineration) achieves comparable reductions in either mobility or toxicity. 

The CERCLA Reauthorization Conference Committee’s Statement of Managers makes the 

following point with regard to this waiver: 

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Subsection [121] (d)(4)(D) allows the selection of a remedial action that 

does not comply with a particular Federal or State standard or requirement 

of environmental law, where an alternative provides the same level of 

control as that standard or requirement through an alternative means of 

control. This allows flexibility in the choice of technology but does not 

allow any lesser standard or any other basis (such as a risk-based 

calculation) for determining the required level of control. However, an 

alternative standard may be risk-based if the original standard was 

risk-based. 

The following specific factors may be considered in deciding whether to invoke 

this waiver: 

" The time required to achieve beneficial results using the alternative 

remedy is equal to or less than the original ARAR. An alternative that 

achieved similar results in significantly less time should be considered as 

advantageous; 

" Degree of protection of health, welfare, and the environment (e.g., 

environmental concentration achieved) is equal to or greater than that 

under the original ARAR; 

" Level of performance achieved compared to that specified in the ARAR (e.g., 

concentration of residuals); and 

" Reliability of the remedy. The potential for the alternative ARAR to 

continue to be protective into the future in equal to or greater than that 

afforded by the ARAR to be waived. 

5. Inconsistent Application of State Requirements 

[W]ith respect to a State standard, requirement, criteria, or limitation, the 

State has not consistently applied (or demonstrated the intention to consistently 

apply) the standard, requirement, criteria, or limitation in similar 

circumstances at other remedial actions. (CERCLA §121(d)(4)(E).) 

This waiver is intended to prevent unjustified or unreasonable restrictions from 

being imposed on cleanups. The issues raised by this waiver are closely tied to those 

involved in the definition of “promulgated.” 

This waiver may be used in two situations. First, State requirements may have 

been developed and promulgated but never applied because of a lack of applicability in 

past situations. Such requirements should not be applied in CERCLA actions where there 

is evidence that the State does not intend to apply them. Second, State standards that 

have been variably applied or inconsistently enforced may give reason to invoke the 

inconsistent application waiver. A standard is presumed to have been consistently 

applied unless there is evidence to the contrary. 

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Consistency of application may be determined by: 

" Similarity of sites or response circumstances (nature of contaminants or 

media affected, characteristics of waste and facility, degree of danger or 

risk, other hazardous waste management programs, etc.); 

" Proportion of non-compliance cases (including enforcement actions); 

" Reason for non-compliance; 

" Intention to consistently apply future requirements as demonstrated by 

policy statements, legislative history, site remedial planning documents, 

or State responses to Federal-lead sites; newly promulgated requirements 

shall be presumed to embody this intention unless there is contrary 

evidence. 

5. Fund Balancing 

[I]n the case of a remedial action to be undertaken solely under section 104 

using the Fund, selection of a remedial action that attains such level or 

standard of control will not provide a balance between the need for protection 

of public health and welfare and the environment at the facility under 

consideration, and the availability of amounts from the Fund to respond to 

other sites which present or may present a threat to public health or welfare 

or the environment, taking into consideration the relative immediacy of such 

threats. (CERCLA §121(d)(4)(F).) 

The Fund-balancing waiver may be invoked when meeting an ARAR would entail 

such cost in relation to the added degree of protection or reduction of risk 

afforded by that standard that remedial action at other sites would be jeopardized. 

(Even with this waiver, the remedy must still comply with the statutory requirement 

to be protective of human health and the environment). 

The following criteria may be considered when invoking the Fund-balancing 

waiver for ARARs: 

" The cost of implementing a remedy that would attain the ARAR in question. 

" The availability of amounts in the Fund to respond to other sites (includes 

consideration of the number of sites and expected cost of remediation) is 

not adequate because attainment of the ARAR would reduce the availability 

of Fund monies for other sites. Projections should show that significant 

threats from other sites may be addressed under the current Fund if the 

ARAR were not attained. 

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1.4 OTHER CRITERIA OR GUIDELINES TO BE CONSIDERED (TBCs) 

In addition to legally binding laws and regulations, many Federal and State 

environmental and public health programs also develop criteria, advisories, 

guidance, and proposed standards that are not legally binding, but that may provide 

useful information or recommended procedures. These materials are not potential 

ARARs but are evaluated along with ARARs, as part of the risk assessment conducted 

for each CERCLA site, to set protective cleanup level targets. Chemical-specific TBC 

values such as health advisories and reference doses will be used in the absence of 

ARARs or where ARARs are not sufficiently protective to develop cleanup goals. In 

addition, other TBC materials such as guidance or policy documents developed to 

implement regulations may be considered and used as appropriate, where necessary to 

ensure protectiveness. The TBC values and guidelines may be used as appropriate.20 

After the risk assessment has been conducted, if no ARARs address a particular 

situation, or if existing ARARs do not ensure protectiveness, to-be-considered 

advisories, criteria, or guidelines should be used to set cleanup targets. Note that 

it may be necessary in the risk assessment to express the TBC values in different 

units (e.g., daily intake) in order to apply then. For instance, TBC values 

expressed as dosages may have to be converted to concentration levels before they 

can be used. 

Exhibit 1-10 at the end of this chapter lists other Federal criteria, 

advisories, guidance, and standards that should be considered. EPA is not aware of 

any comprehensive listing of State TBCs, which should nevertheless be evaluated for 

use in a particular site cleanup. Exhibit 1-8 outlines a procedure for determining 

when such material should be used. The basic criterion in whether use of the 

material to be considered is necessary to protect public health or the environment 

at a CERCLA site. For example, although Health Effects Advisories (HEAs) are not 

legally binding standards, and may not be fully current, they may provide the best 

available standard for a particular chemical for which no binding standard exists. 

In that case, the HEA should be evaluated using the procedures in the Superfund 

Public Health Evaluation Manual, and if the standard is necessary to achieve a 

protective remedy it should be used. 

TBCs should only be used in setting protective cleanup levels after 

ascertaining that they have not been superceded. For specific TBC values, and 

related explanatory material and EPA contacts, consult the EPA Integrated Risk 

Information System (IRIS). IRIS is a computer-based catalogue of EPA risk assessment 

and risk management information for chemical risk assessment and risk management 

information for chemical substances, accessible through the Agency's electronic mail 

system.21 

20 See the discussion of risk assessment in Section 1.2.3.1 above and The 

Superfund Public Evaluation Manual (October 1986; 9285.4-1) 

21 Training is available. For general questions, contact the IRIS coordinator 

at FTS 382-7315. 

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Exhibit 1-8

General Procedure for Determining

if Guidance or Criteria Should be Considered

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1.5 DOCUMENTATION 

Guidance provided in this manual on ARAR and TBC documentation updates and 

supersedes other sources such as the Guidance on Feasibility Studies Under CERCLA 

(April 1985), materials distributed at ROD workshops, and the Preamble to the NCP 

(November 1985). Detailed documentation of ARARs, as described below, should be 

provided in an Appendix to the RI/FS Report, and a summary included in the ROD. When 

revised, the RI/FS guidance and the ROD guidance currently being developed will 

discuss specific guidelines, and this manual will be revised where necessary. 

The following documentation should always be supplied in an Appendix to the 

RI/FS Report in the discussion of the analysis of Federal and State ARARs: 

" Documentation should provide a rationale for the decision that a 

chemical-, location-, or action-specific requirement is applicable, 

or is relevant and appropriate for that specific site, for each 

remedial action alternative that passed through the screening and 

into detailed analysis.22 The rationale should include an 

explanation of the analysis loading to the determination of 

applicability, or relevance and appropriateness. If more than one 

requirement is determined to be ARAR in connection with the same 

substance, action, or site-specific condition, and if the standards 

are inconsistent or in conflict, the general rule is to comply with 

the most stringent requirement. 

" When an alternative is chosen that does not attain an ARAR, the 

basis for waiving the requirement must be fully documented and 

explained. 

" Documentation may also be appropriate in some cases when a potential 

ARAR is initially identified but ultimately is found not to be ARAR. For 

example, information may become available late in the RI/FS phase of the 

project that changes the status of a requirement from ARAR to not ARAR. 

When a requirement is expected to be ARAR, and the determination is 

difficult, the factors indicating why the standard was not ARAR should 

be stated and explained in sufficient detail so that the basis for the 

decision can be understood by a later reviewer. 

22 Note that chemical-specific ARARs will generally be the same for all 

alternatives. A single list of chemical-specific ARARs should be developed and 

modified during the remedy selection process. In most cases, documentation of the 

identification of chemical-specific ARARs need not be repeated for each 

alternative. 

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The following documentation should be provided in an Appendix to the RI/FS 

Report for the analysis of other Federal and State criteria, advisories, 

guidance, and proposed standards to be considered (TBCs). 

" If no potential ARARs are identified covering a particular 

situation, or if potential ARARs are determined not to be 

protective, any pertinent criteria, advisories, guidance, or 

proposed standards should be used, and the reasons for their use 

should be fully documented. 

" Documentation need not be provided for negative determinations 

related to TBCs. That is, reasons for determining that to-beconsidered standards are not pertinent do not need to be 

documented. 

In addition to the circumstances specified above, documentation should be 

provided for both ARARs and to-be-considered standards in every case in which, in 

the decision-maker's judgment, the documentation would strengthen the RI/FS 

Report and the ROD. 

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EXHIBIT 1-9 

UNIVERSE OF APPLICABLE OR RELEVANT AND 

APPROPRIATE REQUIREMENTS a/ 

1. Office of Solid Waste 

" Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901) b/ 

a. 40 CFR Part 264, applicable for permitted facilities c/, and 40 CFR Part 265, for interim status facilities. 

Ground-water Protection (40 CFR 264.90-264.101)

Ground-water Monitoring, Subpart F (40 CFR 264.98-264.100) d/

Closure and Post-Closure (40 CFR 264.110-264.120, 265.110-265.120)

Containers (40 CFR 264.170-264.178, 265.190-265.177)

Tanks (40 CFR 264.190-264.200, 265.190-265.199)

Surface Impoundments (40 CFR 264.220-264.249, 265.220-265.230)

Waste Piles (40 CFR 264.250-264.269, 265.250-265.258)

Land Treatment (40 CFR 264.270-264.99, 265.270-265.282)

Incinerators (40 CFR 264.340-264.999, 265.340-265-369)

Land Disposal Restrictions (40 CFR 268.1-268.50)

Dioxin-containing Wastes (50 FR 1978). Includes the final rule for the listing of dioxin-containing waste.

b. Statutory requirements, including: 

Liquids in Landfills (RCRA §3004(c))

Minimum Technology Requirements (RCRA §3004(o), 3005(j))

Dust Suppression (RCRA §3004(e))

Hazardous Waste Used as Fuel (RCRA §3004(q))

c. Open Dump Criteria - pursuant to RCRA Subtitle D: criteria for classification of solid waste disposal facilities (40 CFR Part 257). 

Note: For nonhazardous wastes. 

2. Office of Water 

" The Safe Drinking Water Act (42 U.S.C. 300(f)) 

a. Maximum Contaminant Levels (chemicals, turbidity, and microbiological contamination) (for drinking water or human consumption (40 CFR 141.11-141.16). 

b. Maximum Contaminant Level Goals (40 CFR 141.50-141.51, 50 FR 46936) 

c. Underground Injection Control Regulations (40 CFR Parts 144, 145, 146, 147). 

" Clean Water Act (33 U.S.C. 1251) 

Requirements established pursuant to sections 301 (effluent limitations), 302 (effluent limitations), 303 (water quality standards, including State water quality standards), 304 

(Federal water quality criteria), 306 (national performance standards), 307 (toxic and pretreatment standards, including Federal pretreatment standards for discharge into 

publicly owned treatment works, and numeric standards for toxics), 402 (national pollutant discharge elimination system), 403 (ocean discharge criteria), and 404 (dredged 

or fill material) of the Clean Water Act, (33 CFR Parts 320-330, 40 CFR Parts 122, 123, 125, 131, 230, 231, 233, 400-469). Available ambient Water Quality 

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EXHIBIT 1-9 

(Continued) 

UNIVERSE OF APPLICABLE OR RELEVANT AND 

APPROPRIATE REQUIREMENTS 

Criteria Documents are listed at 45 FR 79318, November 28, 1980; 49 FR 5831, February 15, 1984;

50 FR 30784, July 29, 1985; 51 FR 22978, June 28, 1986; 51 FR 43665, December 3, 1986; 51 FR 8012, March 7, 1986;

52 FR 6213, March 2, 1987.

" Marine Protection, Research, and Sanctuaries Act (33 U.S.C. 1401) 

" Ocean Dumping Requirements (40 CFR Parts 220-223, Subchapter H) 

" Discharge of dredged materials into ocean, (33 CFR Parts 320-329, 40 CFR Parts 122, 123, 125, 131, 230, 231, 233, 400-469). Incineration at sea requirements (40 CFR 

Parts 220-225, 227, 228). See also 40 CFR 125.120-125.124. 

" Section 10 of the Rivers and Harbors Act prohibits unauthorized obstruction or alteration of navigable waters 

(33 CFR Parts 320-329, 40 CFR Parts 122, 123, 125, 131, 230, 231, 233, 400-469). 

" EPA’s Statement of Procedures on Floodplains Management and Wetlands Protection. (40 CFR Part 6 Appendix A) f/ 

3. Office of Pesticides and Toxic Substances 

" Toxic Substances Control Act (15 U.S.C. 2601) 

a. PCB Requirements Generally: 40 CFR Part 761; Manufacturing Processing, Distribution in Commerce, and Use of PCBs, and PCB items (40 CFR 761.20-761.30); 

Marking of PCBs and PCB items (40 CFR 761.40-761.45); Storage and Disposal (40 CFR 761.60-761.79); Records and Reports (40 CFR 761.180-761.185). See 

also 40 CFR 129.105, 750. 

b. Disposal of Wate Material Containing TCDD (40 CFR 775.180-775.197). 

4. Office of Air and Remediation 

" The Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S,C. 2022) 

Uranium mill tailing rules - Health and Environmental Protection Standards for Uranium and Thorium Mill 

Tailings, (40 CFR Part 192). 

" Clean Air Act (42 U.S.C. 7401) 

a. National Ambient Air Quality Standards (40 CFR Part 50) 

b. Standards for Protection Against Radiation - high and low level radioactive waster rule, (10 CFR Part 20). 

c. National Emissions Standards for Hazardous Air Pollutants for Asbestos and Wet Dust particulates, (40 CFR 61.140-61.156), for Beryllium (40 CFR 61.30-61.34), for 

Vinyl Chloride (40 CFR 61.60-61.71), for Benzene (40 CFR 61.110-61.112), and for other hazardous substances (40 CFR Part 61 generally). See also effluent 

limitations and pretreatment standards dor Wet Dust Collection (40 CFR 427.110-427.116) and 40 CFR Part 763. 

d. National Emissions Radionuclides (40 CFR Part 61, 10 CFR 20.101-20.108) 

e. State implementation plans for national primary and secondary ambient air quality control standards (42 U.S.C. 7410) 

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EXHIBIT 1-9 

(Continued) 

UNIVERSE OF APPLICABLE OR RELEVANT AND 

APPROPRIATE REQUIREMENTS 

f. Standards of performance for new stationary sources, including new incinerators (42 U.S.C. 7411), (40 CFR Part 60). 

5. Other Federal Requirements 

" OSHA requirements r workers engaged in response or other hazardous waste operations (29 CFR 1910.120). 

" Occupational Safety and Health Act of 1970 (29 U.S.C. 651). 

(a) Occupational Safety and Health Standards (General Industry Standards) (29 CFR Part 1910). 

(b) The Safety and Health Standards for Federal Service Contracts (29 CFR Part 1926). 

(c) The Shipyard and Longshore Standards (29 CFR parts 1915, 1918). 

(d) The Health and Safety Standards for Employees engaged in Hazardous Waste Operations. (50 FR45654) 

" National Historic Preservation Act, 16 U.S.C. 470. Protection of Archaeological Resources: Uniform Regulations -- Department of Defense (32 CFR Part 229, 229.4), 

Department of the Interior (43 CFR Part 7, 7.4). 

" Federal Land Policy and Management Act, 13 U.S.C. 1700. (Establishes requirements concerning utilization of public lands, particularly rights of way regulation (13 U.S.C. 

1761), land use planning and land acquisition and disposition (13 U.S.C. 1711), and appropriation of waters on public lands. 

" Department of Transportation Rules for the Transportation of Hazardous Materials, 49 CFR Parts 107, 171.1-172.558.

" Endangered Species Act of 1973, 16 U.S.C. 1531. (Generally, 50 CFR Parts 81, 225, 402).

" Wild and Scenic Rivers Act, 16 U.S.C. 1271.

" Fish and Wildlife Coordination Act, 16 U.S.C. 661 note.

" Fish and Wildlife Improvement Act of 1978, and Fish and Wildlife Act of 1956, 16 U.S.C. 742a note. e/

" Fish and Wildlife Conservation Act of 1980, 16 U.S.C. 2901. (Generally, 50 CFR Part 83). e/

" Coastal Zone Management Act of 1972, 16 U.S.C. 1451. (Generally, 15 CFR Part 930 and 15 CFR 923,45 for Air and Water Pollution Control Requirements).

" Farmland Protection Policy Act, 7 U.S.C. 4201. (Generally, 7 CFR Part 658). e/

" Rivers and Harbors Act (33 U.S.C. 403)

a/ This is the list of potentially applicable or relevant and appropriate requirements found in the October 2, 1985, Compliance Policy with additions. As additional 

requirements are promulgated, they must also be considered potentially applicable or relevant and appropriate and added to this list. 

b/ In authorized States, Federal regulations promulgated under RCRA are not applicable as a State requirement until the State adopts those regulations through its own 

legislative process, but probably would be relevant and appropriate as a Federal requirement. Federal 

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EXHIBIT 1-9 

(Continued) 

UNIVERSE OF APPLICABLE OR RELEVANT AND 

APPROPRIATE REQUIREMENTS 

regulations promulgated pursuant to the Hazardous and Solid Waste Amendments of 1984, however, are effective immediately in all 50 States, and 

are potentially applicable as Federal Requirements. 

c/ 40 CFR Part 264 regulations apply to permitted facilities and may be relevant and appropriate to other facilities. 

d/ Only the Subpart F ground-water monitoring requirements under 40 CFR 264 are ARAR. The Subpart F ground-water monitoring requirements under 

40 CFR 265 are not ARAR. 

e/ May not be applicable or relevant for many sites. 

f/ 40 CFR Part 6 Subpart A sets forth EPA policy for carrying out the provisions of Executive Orders 11988 (Floodplains Management) and 11990 

(Protection of Wetlands). 

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EXHIBIT 1-10 

OTHER FEDERAL AND STATE CRITERIA, ADVISORIES, AND GUIDANCE TO BE CONSIDERED a/ 

1. Federal Criteria, Advisories, and Procedures 

" Health Effects Assessments (HEAs) and Proposed HEAs, (“Health Effects Assessment for (Specific Chemicals), “ECAO, USEPA, 1985). 

" References Doses (RFDs), (“Verified Reference Doses of USEPA,” ECAO-CIN-475, January 1986). See also Drinking Water Equivalent Levels (DWELs), a set of 

medium-specific drinking water levels derived from RFDs. (See USEPA Health Advisories, Office of Drinking Water, March 31, 1987) 

" Carcinogen Potency Factors (CPFs) (e.g., Q1 Stars, Carcinogen Assessment Group [CAG] Values), (Table 11, “Health Assessment Document for Tatrachloroethylene 

(Porchloroethylene)," USEPA, OHEA/6008-82/005F, July 1985). 

" Pesticide registrations and registration date. 

" Pesticide and Food additive tolerances and action levels. Note: Some tolerances and action levels my pertain and should therefore be considered in certain situations. 

" Waste load allocation procedures, EPA Office of Water (40 CFR Part 125, 130). 

" Federal Sole Source Aquifer requirements See 52 FR 6873, March 5, 1987). 

" Public health criteria on which the decision to list pollutants as hazardous under Section 112 of the Clean Air Act was based. 

" Guidelines for Ground-Water Classification Under the EPA Ground-Water Protection Strategy. 

" TSCA chemical advisories (4 issued to date: Nitrosamines (September, 1984), P/Tert/Buti/benzoic acid (March,1985) Burning used oil & space heaters (November, 

1985, 4-4 Methylinebis [2/Chloroaline] (December, 1986), 2 Nitropropane (December 1986). 

" Advisories Issued by FWS and NWFS under the Fish and Wildlife Coordination Act. 

" TSCA Compliance Program Policy, (“TSCA Enforcement Guidance Manuel - Policy Compendium," USEPA, OECH, OPTS, March, 1985). 

" OSHA health and safety standards that way be used to protect public health (non-workplace). 

________________________________________ 

a/ This list updates this list of other Federal criteria, advisories, and guidance to be considered in the October 5, 1985, Compliance Policy. As additional 

or revised criteria, advisories, or guidance are issued, they should be added to this list and also considered. 

b/ Proposed amendments to the federal Insecticide, Fungicide and Rodenticide Act Introduced the concept of Ground Water Residue Guidance Levels (GRGLs). 

These amendments have not been passed by Congress and a List of GRGLs has not yet boan promulgated. 

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EXHIBIT 1-10 

(Continued) 

OTHER FEDERAL AND STATE CRITERIA, ADVISORIES, AND GUIDANCE TO BE CONSIDERED 

" Health Advisories, EPA Office of Water

" EPA Water Quality Advisories, EPA Office of Water, Criteria and Standards Division.

2. USEPA RCRA Guidance Documents 

" Interim Final Alternate Concentration Limit Guidance Part I: ACL Policy and Information Requirements (July, 1987) 

a. EPA’s RCRA Design Guidelines 

(1) Surface Impoundments, Liners Systems, Final Cover and Feedback Control. 

(2) Waste Pile Design - Liner Systems. 

(3) Land Treatment Units. 

(4) Landfill Design - Liner Systems and Final Cover. 

b. Permitting Guidance Manuals c/ 

(1) Permit Writer’s Guidance Manual for Hazardous Waste Land Treatment, Storage and Disposal Facilities, Phase I; (February 15, 1985) EPA/530-

SW-85-024. 

(2) Permit Writer’s Guidance Manual for Subpart F. (October, 1983) 

(3) Permit Applicant’s Guidance Manual for the General Facility Standards. (October 15, 1983) EPA # OSW 00-00-968 

(4) Waste Analysis Plan Guidance Manual. (October 15, 1984) EPA/530-SW-84-012 

(5) Permit Writer’s Guidance Manual for Hazardous Waste Tanks. (July 1983) 

(6) Model Permit Application for Existing Incinerators. (1985) 

(7) Guidance Manual for Evaluating Permit Applications for the Operation of Hazardous Waste Incinerator Units. (July 1983) 

(8) A Guide for Preparing RCRA Permit Applications for Existing Storage Facilities. (January 15, 1982) 

(9) Guidance Manual on closure and post-closure Interim Status Standards. 

c/ RCRA permit manuals are listed to indicate the kind of information used, manner of interpreting information, and determining in setting standards; they are not 

used to indicate procedures. 

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EXHIBIT 1-10 

(Continued) 

OTHER FEDERAL AND STATE CRITERIA, ADVISORIES, AND GUIDANCE TO BE CONSIDERED 

c. Technical Resource Documents (TRDs) 

(1) Evaluating Cover Systems for Solid and Hazardous Waste. (September 1982) EPS OSW-00-00-867 

(2) Hydrologic Simulation of Solid Waste Disposal Sites. (November 1982) EPA OSW-00-00-868 

(3) Landfill and Surface Impoundment Performance Evaluation. (April 1983) EPA OSW-00-00-869 

(4) Draft Minimal Technology Guidelines on Double Liner System for Landfills and Surface Impoundments. (May 1985) PB 87151072-AS 

(5) Draft Minimal Technology Guidelines on Single Liner System for Landfills and Surface Impoundments. (May 1985) PB 871173159

(6) Management of Hazardous Waste Leachate. (September 1982) OSW-00-00-871

(7) Guide to the Disposal of Chemically Stabilized and Solidified Waste. (1982) EPA/530-SW-872

(8) Closure of Hazardous Waste Surface Impoundments. (September 1982) OSW-00-00-873

(9) Hazardous Waste Land Treatment. (April 1983) OSW-00-00-874

(10) Soil Properties, Classification, and Hydraulic Conductivity Testing. (March 1984) OSW-00-00-925, OSWER directive 9480.00-7D

d. Test Methods for Evaluating Solid Waste 

(1) Solid Waste Leaching Procedure Manual. (1984) OSW-00-00-924 

(2) Methods for the Prediction of Leachate Plume Migration and Mixing 

(3) Hydrologic Evaluation of Landfill Performance (HELP) Mode, Volumes I and II (1984), EPA/530-SW-84-009 & EPA/530-SW-84-010 

(4) Hydrologic Simulation on Solid Waste Disposal Sites. (November 1982) EPA OSW-00-00-868 

(5) Procedures for Modeling Flow through Clay Liners to Determine Required Liner Thickness. (1984) EPA/530-SW-84-001 & OSWER directive 

9480.00-9D 

(6) Test Methods for Evaluating Solid Wastes, third edition. (November 1986) SW-846 

(7) A Method for Determining the Compatibility of Hazardous Wastes. EPA/600-02-80-076 

(8) Guidance Manual on Hazardous Waste Compatibility 

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EXHIBIT 1-10 

(Continued) 

OTHER FEDERAL AND STATE CRITERIA, ADVISORIES, AND GUIDANCE TO BE CONSIDERED 

3. USEPA Office of Water Guidance Documents 

a. Pretreatment Guidance Documents: 

(1) 304(g) Guidance Revised Pretreatment Guidelines (3 Volumes) 

(2) Guidance for POTW Pretreatment Pogram Manual (October, 1983) 

(3) Developing Requirements for Direct and Indirect Discharges of CERCLA Wastewater, Draft. (1987) 

(4) Domestic Sewage Exemption Study

(5) Guidance for Implementing RCRA Permit by Rule Requirements at POTWs

(6) Application of Correction Action Requirements at Publicly Owned Treatment Works

(7) Draft Guidance Manual on the Development and Implementation of Local Discharge Limitations Under the Pretreatment Program (1987)

b. Water Quality Guidance Documents 

(1) Ecological Evaluation of Proposed Discharge of Dredged Material into Ocean Waters (1997) 

(2) Technical Support Manual: Waterbody Surveys and Assessments for Conducting Use Attainability Analyses (1983) 

(3) Water-Related Environmental Fate of 129 Priority Pollutants (1979)

(4) Water Quality Standards Handbook (December, 1983)

(5) Technical Support Document for Water Quality-based Toxics Control. (1983)

c. NPDES Guidance Documents 

(1) NPDES Best Management Practices Guidance Manual (June 1981). 

(2) Case studies on toxicity reduction evaluation (May 1983). 

d. Ground Water/UIC Guidance Documents 

(1) Designation of a USDW (No. 7.1, October 1979) 

(2) Elements of aquifer identification (No. 7.2, October 1979) 

(3) Interim Guidance Concerning Corrective Action for Primary and Continuous Release of Class I and IV Hazardous Waste wells (No. 45, April 

1986) requirements 

(4) Requirements applicable to wells injected into, through, or above an aquifer that has been exempted pursuant to Section 146.104(b) (4). (No. 

27, July 1981) 

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EXHIBIT 1-10 

(Continued) 

OTHER FEDERAL AND STATE CRITERIA, ADVISORIES, AND GUIDANCE TO BE CONSIDERED 

(5) Guidance for UIC implementation on Indian Lands. (No. 33, October 1983) 

e. Ground-Water Protection Strategy (August 1984). 

f. Clean Water Act Guidance Documents (See Exhibit 3-1). 

4. USEPA Manuals from the Office of Research and Development 

" SW 846 methods - Laboratory analytic methods (November 1986) 

" Lab protocols developed pursuant to Clean Water Act Section 304(h). 

5. Nonpromulgated State Advisories 

" State approval of water supply system additions or developments. 

" State ground water withdrawl approvals. 

Note: Many other State advisories could be pertinent. Forthcoming guidance will include a more comprehensive list. 

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CHAPTER 2 

GUIDANCE FOR CERCLA COMPLIANCE WITH RCRA 

2.0 INTRODUCTION 

This chapter addresses compliance of CERCLA remedial actions with applicable 

or relevant and appropriate requirements in RCRA (42 U.S.C. 6901),as amended by 

HSWA, and regulations promulgated under that statute.1 RCRA currently has nine 

discrete sections (Subtitles) that deal with specific waste management activities. 

Three of these Subtitles are most likely to be the basis for applicable or relevant 

and appropriate requirements for CERCLA remedial actions: Subtitle C (Hazardous 

Waste Management), Subtitle D (Solid Waste Management), and Subtitle I (Underground 

Storage Tank Regulation). Of these, the provisions in Subtitle C, which mandate the 

creation of a “cradle to grave” management system for hazardous waste by regulating 

the generation, transportation, treatment, storage, and disposal of hazardous 

waste,2 have the greatest likelihood of being applicable or relevant and appropriate 

to CERCLA actions, because they address situations similar to CERCLA site conditions 

or activities. This chapter therefore mainly addresses Subtitle C, but also 

references Subtitles D and I where appropriate. 

Many of the potential ARARs have been listed in Exhibits 1-1 

(Chemical-Specific Requirements), 1-2 (Location-Specific Requirements) and 1-3 

(Action-Specific Requirements) in Chapter 1, Section 1.2.3. Therefore, this chapter 

concentrates on issues that can arise in determining whether RCRA requirements are 

applicable or relevant and appropriate in particular site-specific circumstances. 

This chapter is organized as follows: 

Section 2.1 highlights the importance of coordination between CERCLA and RCRA 

offices. 

Section 2.2 provides a description of the basic structure and purposes of 

RCRA. 

Section 2.3 addresses the jurisdictional requirements for RCRA applicability. 

1 This manual currently addresses RCRA requirements for CERCLA actions only 

where hazardous wastes will remain on site. Off-site remedial actions will be 

addressed at a later date. 

2 Waste is defined by the regulations to be hazardous (unless specifically 

excluded) if it meets one of three criteria: (1) it has a characteristic of 

hazardous waste (ignitability, corrosivity, reactivity, or toxicity); (2) it is 

listed as a hazardous waste; or (3) it is a mixture that contains a hazardous waste. 

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Section 2.4 discusses which RCRA requirements (i.e., requirements established 

by the Federal program, State programs, and requirements under the Hazardous 

and Solid Waste Amendments of 1984 (HSWA)) should be consulted in particular 

circumstances. 

Section 2.5 addresses issues involved in RCRA storage requirements. 

Section 2.6 addresses issues involved in RCRA treatment requirements. 

Section 2.7 addresses issues involved in RCRA disposal requirements. 

2.1 COORDINATION BETWEEN CERCLA (SUPERFUND) AND RCRA OFFICES 

This chapter is written to provide an overview of key RCRA requirements that 

may be applicable or relevant and appropriate to CERCLA remedial actions. However, 

since RCRA statutory and regulatory requirements are complex and many RCRA 

regulations are still under development, it is important that the lead agency 

consult with Regional and State RCRA experts3 for assistance in identifying RCRA 

ARARs. Each Region should develop procedures, protocols, or memoranda of 

understanding that, while not recreating the administrative aspects of a permit, 

ensure such early and continuous coordination. Such procedures may also include a 

mechanism for keeping the appropriate State or Federal RCRA program informed of how 

RCRA ARARs are met during the remedial construction phase. (See also Chapter 1, 

Section 1.2.1). 

In addition, since Superfund program policy on RCRA ARARs will continue to be 

developed as new RCRA regulations are promulgated, it may also be important to 

consult with the appropriate Headquarters Superfund office on questions regarding 

potential RCRA ARARs. 

2.2 OVERVIEW OF RESOURCE CONSERVATION AND RECOVERY ACT (RCRA) 

The Resource Conservation and Recovery Act (RCRA) was passed in 19764 to meet 

three goals: the protection of human health and the environment, the reduction of 

waste and the conservation of energy and natural resources, and the reduction or 

elimination of the generation of hazardous waste as expeditiously as possible. The 

Hazardous and Solid Waste Amendments (HSWA) of 1984 significantly expanded the scope 

of RCRA by adding new corrective action requirements, land disposal restrictions, 

and technical requirements. 

3 Consultation with State RCRA experts is particularly important where States 

are authorized to administer and enforce RCRA (see section 2.4). 

4 RCRA (Pub. L. No. 94-580, 90 Stat. 2795) was passed in 1976 as a series of 

amendments to the Solid Waste Disposal Act of 1965 (Pub. L. No. 89-272). The 

amendments were so extensive that the statute is commonly referred to as RCRA. 

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The RCRA regulations implementing Subtitle C establishing the hazardous 

waste management system first became effective on November 19, 1980. (The 

regulations were published on May 19, 1980, (45 FR 33066) and became effective six 

months 1ater.) Additional standards pertaining to the management of hazardous waste 

at permitted treatment, storage, and disposal facilities have been issued 

periodically since. Included among these are the land disposal restrictions under 

Subpart F (see p. 2-21 for effective dates) and tank system regulations (see p. 

1-48, p. 2-12, and p. A-6), which became effective January 12, 1987. 

The regulations comprising the management system are of two types: general 

standards that govern such topics as ground-water protection, closure, and 

post-closure care requirements for facilities (40 CFR Part 264 Subparts B through 

G), and specific standards that regulate the installation, operation, inspection, 

and closure of containers, tanks, surface impoundments, waste piles, land treatment 

units, landfills, incinerators, and the processes of thermal treatment, chemical or 

biological treatment, and underground injection (40 CFR Part 264 Subparts I through 

O and X, and 40 CFR 265 Subparts P, Q, and R). 

For CERCLA actions which involve treatment, storage, or disposal of RCRA 

hazardous waste after July 26, 1982, the 40 CFR Part 264 standards promulgated on 

that date will generally be applicable. (Note further discussion of Part 264 Subpart 

F requirements in Section 2.7.4.1 below). If RCRA hazardous waste was treated, 

stored, or disposed at the site before the effective date of these Part 264 

standards, the Part 264 standards would not be applicable if the CERCLA action does 

not involve current treatment, storage, or disposal, but may be relevant and 

appropriate. 

While EPA has promulgated regulations in many areas since RCRA was first 

passed, the Hazardous and Solid Waste Amendments of 1984 (HSWA) will result in 

promulgation of additional requirements pertaining to several topics. Final 

Promulgation of regulations to implement HSWA are expected in the future in the 

following areas that may affect CERCLA cleanup actions: 

N Standards for underground storage tanks containing Petroleum or hazardous 

chemicals (proposed 52 FR 12662, April 17. 1987); 

N New procedures for determining if a waste is a hazardous waste 

(forthcoming); 

N Technical standards for liners and leak detection systems in new landfills, 

surface impoundments, waste piles, underground tanks, and land treatment 

units (proposed 52 FR 20218, May 29, 1987); 

N Regulations for the monitoring and control of air emissions for volatile 

organics control at land disposal facilities (proposed 52 FR 3748, February 

5, 1987); 

N Requirements concerning land disposal restrictions on hazardous wastes 

(promulgated in part on November 7, 1986 and July 8, 1987 and 

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forthcoming according to the schedule listed on p. 2-21). Land disposal of 

contaminated soil or debris resulting from a response action under CERCLA 

§104 or §106 is currently exempt from theses requirements. This statutory 

exemption period will end on November 8, 1988. 

N Regulations under Subtitle D affecting solid waste disposal facilities 

(forthcoming). 

N Regulations specifying procedures for carrying out corrective actions at 

RCRA facilities (forthcoming). 

N Requirements concerning restrictions of hazardous wastes in underground 

injection wells (forthcoming). 

These regulations, when promulgated, are likely to be ARARs in certain 

circumstances. As these and other regulations are promulgated, this manual will be 

updated as necessary. 

2.3 JURISDICTIONAL REQUIREMENTS FOR SUBTITLE C APPLICABILITY 

RCRA Subtitle C regulates the treatment, storage, and disposal of hazardous 

waste. In determining the jurisdictional requirements of regulations promulgated 

under Subtitle C, the definitions of solid waste and hazardous waste, the types of 

activities covered, and the time periods covered should be analyzed. 

In general, RCRA Subtitle C requirements for the treatment, storage, or 

disposal of hazardous waste will be applicable if a combination of the following 

conditions are met: 

(1) the waste is a listed5 or characteristic6 waste under RCRA; and 

(2)(a) the waste was treated, stored, or disposed (as defined in 40 CFR 

§260.10) after the effective date of the RCRA requirements under 

consideration; or 

5 Listed hazardous wastes under RCRA are found in 40 CFR Part 261, Subpart D. 

The Subpart K lists identify waste streams from specified sources or industrial 

processes and certain discarded commercial chemical products as hazardous. Some RCRA 

requirements apply to hazardous wastes as defined in RCRA §1004(5). 

6 Characteristic hazardous wastes under RCRA are described in 40 CFR Part 261, 

Subpart C. Testing methods and protocols for characteristic determinations 

(ignitability, corrosivity, reactivity, and Extraction Procedure toxicity are 

contained in Test Methods for Evaluating Solid Waste, 3rd edition, Volume 1C, 

Laboratory Manual (SW-846). 

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(b) the activity at the CERCLA site constitutes treatment, storage, or 

disposal as defined by RCRA. 

Thus, there are two scenarios under which RCRA requirements may be applicable 

to CERCLA sites. First, if the lead agency determines that RCRA listed or 

characteristic hazardous waste is present and the wastes were treated, stored, or 

disposed at the site after the effective date of the RCRA Subtitle C requirements 

under consideration, then the pertinent RCRA Subtitle C requirements will be 

applicable to the waste activity. Generally, traditional RCRA regulated facilities 

that have been listed on the NPL may fall into this category, even if the proposed 

CERCLA action would not involve treatment, storage, or disposal. For example, if a 

RCRA Subtitle C landfill operated at the site after the effective date of the RCRA 

closure requirements, then the lead agency would need to comply with the applicable 

closure requirements for those units in completing the remedial action. 

Under the second scenario, the CERCLA activity involves treatment, storage, or 

disposal of hazardous waste. If the lead agency determines that RCRA listed or 

characteristic hazardous waste is present at the site (even if the waste was 

disposed before the effective date of the requirement) and the proposed CERCLA 

action involves treatment, storage, or disposal as defined under RCRA Subtitle C, 

then RCRA requirements related to those actions would be applicable. 

These two scenarios are contingent upon determinations that a RCRA Subtitle C 

hazardous waste is present and on the identification of the period of waste 

management. To determine whether a waste is a listed waste under RCRA, it is often 

necessary to know the source. However, at many Superfund sites no information exists 

on the source of the wastes. The lead agency should use available site information, 

manifests, storage records, and vouchers in an effort to ascertain the nature of 

these contaminants. When this documentation is not available, the lead agency may 

assume that the wastes are not listed RCRA hazardous wastes, unless further analysis 

or information becomes available which allows the lead agency to determine that the 

wastes are listed RCRA hazardous wastes. If the lead agency is unable to make an 

affirmative determination that the wastes are RCRA hazardous wastes, RCRA 

requirements would not be applicable to CERCLA actions, but may be relevant and 

appropriate if the CERCLA action involves treatment, storage or disposal and if the 

wastes are similar or identical to RCRA hazardous waste. 

Under certain circumstances, although no historical information exists about 

the waste, it may be possible to identify the wastes as RCRA characteristic wastes. 

This is important in the event that (1) remedial alternatives under consideration at 

the site involve on-site treatment, storage, or disposal, in which case RCRA may be 

triggered as discussed in this chapter; or (2) a remedial alternative involves 

off-site shipment. Since the generator (in this case, the agency or responsible 

party conducting the Superfund action) is responsible for determining if the wastes 

exhibit any of these characteristics (defined in 40 CFR §261.21-24), testing may be 

required. The lead agency must use best professional judgment to determine, on a 

site-specific basis, if testing for hazardous characteristics is necessary. 

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In determining whether to test for the toxicity characteristic using the 

Extraction Procedure (EP) Toxicity Test,7 it may be possible to assume that certain 

low concentrations of waste are not toxic. For example, if the total waste 

concentration is 20 times or less the EP Toxicity concentration, the waste cannot be 

characteristic hazardous waste. In such a case RCRA requirements would not be 

applicable. In other instances, where it appears that the substances may be 

characteristic hazardous waste (ignitable, corrosive, reactive, or EP toxic), 

testing should be performed. 

If the wastes exhibit hazardous characteristics, RCRA requirements are 

potentially applicable if the wastes also were either treated, stored, or disposed 

after the effective date of the applicable RCRA requirement or if the CERCLA actions 

will involve treatment, storage, or disposal. 

If RCRA Subtitle C is not applicable, further analysis may be done to 

determine whether it is both relevant and appropriate.8 This determination depends 

first on whether the waste at the site is “sufficiently similar” to a RCRA hazardous 

waste. The following paragraphs provide guidance on evaluating CERCLA waste with 

regard to this “sufficiently similar” text. 

In addition to identifying hazardous wastes through characteristic testing, 

EPA analyzes wastes from specific industries or processes, and lists certain wastes 

or waste streams if it determines they should be regulated as a hazardous waste 

under RCRA. EPA’s listing decision is based on an analysis of a number of factors 

that affect the hazard of the waste, including the toxicity of the constituents in 

the waste stream and their concentration, persistence, and bioaccumulation 

characteristics, as well as volume generated and potential for mismanagement. Simply 

the presence of a hazardous constituent in a waste is not sufficient to 

automatically consider a waste to be hazardous under RCRA. 

Similarly, when evaluating whether Subtitle C requirements are relevant and 

appropriate, the mere presence of hazardous constituents in a CERCLA waste does not 

mean the waste is sufficiently similar to a RCRA hazardous waste to trigger Subtitle 

C as an ARAR. Judguent should be used in assessing whether the waste closely 

resembles a RCRA hazardous waste, considering the chemical composition, form, 

concentration, and any other information pertinent to the nature of the waste. For 

example, waste in barrels that is virtually identical to a listed waste might be 

sufficiently similar. By contrast, low 

7 Currently, 14 contaminants are listed for the characteristic of EP toxicity. 

A waste exhibits the characteristic of EP toxicity if an extract of a representative 

sample of the waste, tested using the specified procedures, contains any of these 14 

contaminants equal to or greater than the concentration level specified in 40 CFR 

§261.24. 

8 See Chapter 1, section 1.2.2, p. 1-10, and section 1.2.4.3, p. 1-65 to p.1-

70, for detailed guidance on making the determination that a requirement is both 

relevant and appropriate. 

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concentrations of a hazardous constituent, dispersed in soil over a wide area, would 

generally not trigger Subtitie C as relevant and appropriate. (For determination of 

relevance and appropriateness see general discussion on page 1-65.) 

2.3.1 DEFINITION OF HAZARDOUS WASTE 

Generally, most requirements under RCRA are triggered by the management of 

waste defined specifically as solid or hazardous9 (See generally 40 CFR Part 261). 

Solid waste is defined very broadly under the regulations to include garbage (i.e. 

from households), refuse (metal scrap and other commercial wastes), sludges from 

facilities such as wastewater treatment plants and pollution control facilities, and 

other discarded materials in solid, semi-solid, liquid, or contaminated gaseous 

forms resulting from industrial, commercial, mining, agricultural, and community 

activities. Hazardous waste considered a subset of solid waste, and is subject to 

regulation under RCRA if: 

(1) the wastes exhibit one of four characteristics (ignitability, 

corrosivity, reactivity, or EP toxicity); 

(2) are waste streams or discarded chemical products listed in the RCRA 

regulations as hazardous wastes (40 CFR Part 264 Subpart D); or 

(3) are mixtures of solid waste and waste listed as hazardous by RCRA 

regulations. 

Wastes that are specifically excluded from regulation as a hazardous waste 

include household wastes, municipal resource recovery wastes, and some 

wastes returned to the land as fertilizer. 

9 Most provisions in Subtitle C of RCRA apply to hazardous waste listed or 

identified as characteristic pursuant to §3001, as described above in (1) through 

(3). However, RCRA §§3004(b), (c), and (u) apply to the broader definition of 

hazardous waste found in RCRA §1004(5): “The term ‘hazardous waste’ means a solid 

waste, or combination of solid wastes, which because of its quantity, concentration, 

or physical chemical, or infectious characteristic may cause, or significantly 

contribute to an increase in mortality or an increase in serious irreversible, or 

incapacitating reversible, illness; or pose a substantial present or potential 

hazard to human health or the environment when improperly treated, stored, 

transported, or disposed of, or otherwise managed.” RCRA §3004 (b) prohibits 

placement of noncontainerized or bulk liquid “hazardous waste” (as defined in 

§1004(5)) in certain salt domes and other geologic formations. Similarly, 

noncontainerized or bulk liquid hazardous waste may not be placed in any landfill 

(§3004(c)). Section 3004(u) pertains to corrective action for solid waste management 

units at RCRA facilities. 

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2.3.2 TREATMENT, STORAGE, AND DISPOSAL OF HAZARDOUS WASTE 

Management of hazardous waste is divided by the statute and the regulations 

into treatment, storage, and disposal. EPA has determined that the following 

jurisdictional prerequisites will trigger the applicability of some portion of the 

RCRA 40 CFR Part 264 requirements for a CERCLA remedial action: 

(1) RCRA storage requirements apply to the storage of RCRA hazardous waste 

after November 19, 1980.10 Waste received by a facility before November 

19, 1980, is still subject to RCRA requirements if the waste is stored 

after that date. Generators storing wastes for less than 90 days are not 

required to soak permits, but must satisfy the standards in 40 CPR Part 

265 Subpart I for containers or the standards in 40 CFR Part 265 Subpart 

J for tanks.11 

(2) RCRA requirements for treatment or disposal12 of hazardous wastes apply 

if: 

10 “Storage” means the holding of hazardous waste for a temporary period, at 

the end of which the hazardous waste is treated, disposed of, or stored elsewhere. 

(40 CFR §260.10(a)) Secondary containment system regulations for tank systems were 

enacted July 14, 1986, and must be met by January 12, 1989 for tanks containing 

dioxins, and for other tanks, by January 12, 1991, or when the system has reached 15 

years of age, whichever comes later. 

11 Generators of hazardous waste may accumulate hazardous waste on-site for 

less than 90 days without a permit or interim status, provided that: (1) the waste 

is placed in containers or tanks that are in compliance with Subparts I and J of 40 

CFR Part 265 (excluding §265.197(c) and §265.200); (2) the containers and tanks are 

clearly dated and marked “hazardous waste;” and (3) the generator complies with 

Subparts C and D of 40 CFR Part 265 and with §265.16 (see 40CFR §262.34(a)). In 

addition, generators of less than 100 kg/month of hazardous waste are not subject to 

the 90-day limit (40 CFR §261.5); and generators of less than 1000 kg/month of 

hazardous waste may accumulate waste for up to 180 days without a permit (40 CFR 

262.34(d)). 

12 “Treatment” means any method, technique, or process, including 

neutralization, designed to change the physical, chemical, or biological character 

or composition of any hazardous waste so as to neutralize such waste, or so as to 

recover energy or material resources from the waste, or so as to render such waste 

non-hazardous or less hazardous; safer to transport, store, or dispose of; or 

amenable for recovery, amenable for storage, or reduced in volume. (40 CFR §260.10) 

“Land disposal” is defined by Section 3004(k) of RCRA as follows: “when used with 

respect to a specified hazardous waste, shall be deemed to include, but not be 

limited to, any placement of such hazardous waste in a landfill, surface 

impoundment, waste pile, injection well, land treatment facility, salt dome 

formation, salt bed formation, or underground mine or cave.” 

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a) the unit or area of contamination13 contains RCRA hazardous waste that 

was treated or disposed of after the effective data of the pertinent 

requirements;14 or 

b) the CERCLA activity at the unit or area of contamination constitutes 

treatment or disposal of RCRA hazardous waste, as defined under RCRA.15 

(3) RCRA corrective action requirements16 apply at sites that are 

subject to RCRA regulation under paragraphs 1 and 2 above, and to 

all releases of hazardous waste or constituents from “solid waste 

management units” existing at facilities containing such units. 

Solid waste management units include “any unit from which 

hazardous constituents might migrate, irrespective of whether the 

units were intended for the management of solid and/or 

hazardous wastes.” Certain corrective action requirements 

specified under HSWA were in 50 FR 28712, July 15, 1985, and 52 

FR 45788, December 1, 1987. 

13 Disposal of RCRA hazardous waste into a unit or area of contamination (AOC) 

will trigger applicability of certain RCRA requirements to the unit or AOC. See 

section 2.7 for more detailed discussion. 

14 For example, the requirements for groundwater monitoring are applicable to 

surface impoundments, landfills, land treatment units, and waste piles that received 

hazardous waste after July 26,1982. 

15 When current activity at the CERCLA site constitutes treatment or disposal, 

the activity must also meet the conditions described in Sections 2.6 or 2.7 of this 

chapter. 

16 “Hazardous waste” requiring corrective action under §3004(h) is defined 

more broadly than wastes listed or identified under §3001. Corrective action applies 

to hazardous waste as defined in §1004(5). See Footnote 9. 

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A portion of the RCRA requirements under 40 CFR Part 264 will likely be 

applicable at most CERCLA sites that contain RCRA hazardous waste because remedial 

actions at those sites will generally constitute treatment, storage, or disposal 

after the effective date of RCRA. In those cases in which a RCRA facility has been 

listed on the NPL, the applicability of RCRA standards to the facility has already 

been determined. In addition to the jurisdictional prerequisites listed above, 

however, RCRA treatment, storage, and disposal standards each have their own 

separate requirements. Therefore it will be necessary to utilize the procedures 

outlined in Chapter 1 and take into account issues addressed in this chapter in 

order to determine which RCRA requirements are applicable or relevant and 

appropriate to particular CERCLA activities. 

2.3.3 ADDITIONAL CONSIDERATIONS IN DETERMINING SUBTITLE C ARARs 

The following general principles may assist in determining potentially 

applicable or relevant and appropriate RCRA requirementsl7: 

N RCRA permits are not required for CERCLA actions taken entirely onsite. 

Facilities used for off-site disposal are required by CERCLA §121(d)(3) to 

be in compliance with all pertinent RCRA requirements (e.g., have a RCRA 

permit or interim status and have any releases from SWMUs being controlled 

by corrective action). 

N Administrative RCRA requirements, such as reporting and recordkeeping 

requirements, are not applicable or relevant and appropriate for on-site 

activities. 

N RCRA requirements that are not applicable may nonetheless be relevant and 

appropriate based on site-specific circumstances. In some cases, the source 

or prior use of a CERCLA waste may not be identifiable, but the waste may 

be identical in composition to a listed RCRA waste derived from a known 

source or use, and therefore RCRA requirements would be relevant. In 

addition, a determination mist be made whether the requirement is 

appropriate given the circumstances of the release, the site 

characteristics, and the remedial activity. Only those requirements that 

are determined to be both relevant and appropriate must be complied with. 

(See Chapter 1, pp. 1-10 and 1-65 to 1-70 for a detailed discussion of the 

determination that a requirement is relevant and appropriate). 

17 RCRA guidance, although not ARAR, may also be considered and includes: 

Permit Writers’ Guidance Manual for the Location of Hazardous Waste Land Storage and 

Disposal Facilities: Phase 1, Criteria for Location Acceptability and Existing 

Regulations for Evaluating Locations (Final Draft), February 1985; Permit Applicants 

Guidance Manual for the General Facility Standards of 40 CER 264, SW-968, October 

1983; and Guidance for Ground-Water Classification Under the EPA Ground-Water 

Protection Strategy, (Final Draft), December 1986. 

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RCRA regulations are organized by particular waste management processes (i.e., 

types of technology, such an incineration, tanks, or land treatment) as well as by 

general standards (i.e., types of actions, such as disposal, closure, or corrective 

action, that may pertain to several different processes). Potential ARARs for CERCLA 

sites may pertain to either the process or the action. Action-specific requirements 

generally refer to an action or to a particular type of waste management process. 

2.4 FEDERAL AND STATES RCRA REQUIREMENTS 

Federal regulations under RCRA establish minimum national standards defining 

the acceptable management of hazardous waste. States can be authorized by EPA to 

administer and enforce RCRA hazardous waste management programs in lieu of the 

Federal program if the States have equivalent statutory and regulatory authority. In 

these authorized States, the Federal regulations promulgated pursuant to RCRA are 

not applicable until the State Adopts the Federal regulations through its own 

legislative process. Federal regulations promulgated pursuant to HSWA, however, are 

effective immediately. The regulations in these State programs may be more stringent 

or have greater scope of coverage than the Federal program. If a State is not 

authorized for a particular part of the RCRA program, the Federal government is 

responsible for that portion of the program in the State, and Federal regulations 

are applicable. 

If the CERCLA site is located in a State with an authorized RCRA program, the 

State’s promulgated RCRA requirements will replace the equivalent Federal 

requirements as potentially ARAR. If the remedial action is taking place in a State 

without full authorization, Federal requirements may be ARAR, unless the State’s 

promulgated regulations satisfy the requirement in CERCLA §121 that they are “more 

stringent” than the Federal standard. Since-a State standards may need to be 

evaluated. To retain final authorization State may be authorized for only a portion 

of the RCRA program, both Federal and, the State must adopt HSWA-related 

requirements as State law by specified dates. Thus, State authority and regulations 

will eventually replace corresponding Federal requirements when the State receives 

Federal authorization for HSWA. These requirements would then be analyzed as 

potential ARAR.18 

Because the timetable for implementation of HSWA requirements extends into the 

1990's, consideration of both Federal and State potential ARARs will be necessary 

for some time to come. The forthcoming HSWA standards that may affect CERCLA cleanup 

actions in the future are listed on page 2-3. 

18 Currently, the Agency is developing additional guidance on State ARARS, to 

be incorporate in this manual at a later date. 

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2.5 RCRA STORAGE REQUIREMENTS 

Remedial action at a CERCLA site may require short- or long-term storage of 

hazardous substances found at the site.19 Whether RCRA storage requirements will, be 

applicable will depend on whether the waste is a RCRA hazardous waste and on 

whether the waste has been or will be stored after November 19, 1980. If these 

requirements are not applicable, whether they are relevant and appropriate should be 

determined based on the procedure for determining relevance and appropriateness 

outlined in Chapter 1. 

The jurisdictional prerequisites for applicability of the RCRA storage 

requirements are: 

(1) The substance to be stored must be a RCRA hazardous waste. (If the 

substance meets the definition of ignitable or reactive wastes, 

incompatible wastes, or special categories of wastes, special 

requirements under the RCRA container storage, tank storage, surface 

impoundment storage, and waste pile storage regulations pertaining to 

these wastes might also be applicable); and 

(2) The hazardous waste must be stored after November 19, 1980. Note that 

waste received by a facility before that date is still subject to 

RCRA requirements if stored in tanks or containers after that date. 

Thus, if the CERCLA site contains an existing storage area holding 

RCRA hazardous waste, the requirements are applicable.20 

Alternatively, if the RCRA hazardous waste first becomes subject to 

regulation as a result of the actions taken at the cleanup site, RCRA 

storage requirements will be applicable. In these situations 

depending on the amounts and types of wastes being stored, different 

requirements may become applicable.21 

19 RCRA requirements for the use of storage containers are given in 40 CFR 

Part 264 Subpart I, those regarding storage tanks are in 40 CFR Part 264 Subpart J, 

those regarding storage surface impoundments are in 40 CFR Part 264 Subpart K, and 

those regarding storage piles are in 40 CFR Part 264 Subpart L. EPA has recently 

issued a notice of proposed rulemaking that would require leak detection systems for 

tanks, surface impoundments, and storage piles. (May 29, 1987, 52 FR 20218). 

20 The land disposal restrictions rule also provides that any waste that is 

prohibited from one or more methods of land disposal also is prohibited from storage 

unless the storage is solely to accumulate sufficient quantities of the waste to 

allow for proper recovery, treatment, or disposal. 

21 There are several types of small quantity generators and different 

provisions (40 CFR 1262.34) apply depending on length of storage and amount of 

hazardous waste generated. For example, a generator accumulating less than 55 

gallons of hazardous waste or one quart of an acutely hazardous waste listed in 

§261.33(3) in containers at or near any point of generation where wastes initially 

accumulate are not subject to the 90 day limit, as long as 

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Finally, when it is determined that a waste is a RCRA hazardous waste, and 

that the waste will be stored, a decision must be made as to whether the RCRA 

requirements pertaining to storage are applicable. The particular storage 

requirements applicable will depend upon the type of container used. Determining 

which storage requirements under RCRA, are applicable will require analysis of the 

prerequisites included in Subparts I, J, K, or L for the different types of storage. 

Subpart I requires determining whether the receptacle satisfies the definition of 

“container” in 40 CFR §260.10. Subpart J requires a determination if the receptacle 

is a “tank,” as tanks are defined by the regulations (40 CPR §260.10). Technical 

requirements under HSWA for underground tanks are being developed, and in the future 

they will also have to be considered in the ARAR analysis.22 Subpart L requires a 

determination whether the waste is being stored in a “pile,” as defined in the 

regulations. However, certain covered waste piles are exempt from a part of the 

waste pile requirements. A decision on the applicability of the waste pile 

regulations will require an analysis of both basic definitions and exemotions. 

Even if they are not applicable, portions of RCRA requirements for tanks (40 

CFR Part 264, Subpart J) may be relevant and appropriate for sites where temporary 

storage in tanks is required. For example, the requirement that tanks have 

sufficient minimum shell thickness and pressure controls to prevent collapse or 

rupture may be relevant and appropriate, since the purpose of this requirement is to 

ensure that the tank does not create additional environmental problems due to its 

own failure. Subpart J further requires that tanks have an inner lining or coating, 

or an alternative means of protection such as cathodic protection or corrosion 

inhibitors, in order to ensure that the tank is safe throughout its effective life. 

This requirement, while relevant, might not be appropriate unless the tanks were 

expected to be in use for several years. For example, if hazardous substances will 

be stored temporarily in the tanks and then drained, with the process repeated many 

times, then such protection requirements would be both relevant and appropriate. 

§§265.171, 265.172 and 265.173(a) are being complied with and containers are 

marked clearly as hazardous waste. These sections require that the waste is 

being stored in containers that are in good condition, are compatible with the waste 

being stored, and are handled properly to prevent rupture or leaking. (40 CFR 

§262.34(c)(1)). Generators of between 100 kg. and 1000 kg. of hazardous waste per 

month may accumulate it for up to 180 to 220 days (if they comply with tank and/or 

container” regulations for storage) without requiring a permit or interim status. 

22 Technical standards for underground storage tanks containing petroleum or 

hazardous substances were proposed on April 17, 1987, 52 FR 12662. 

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2.6 RCRA TREATMENT REQUIREMENTS23 

SARA §121 established a preference for remedial actions involving treatment 

that permanently and significantly reduces the volume , toxicity, or mobility of the 

hazardous substances, pollutants, and contaminants at the site. Whether RCRA 

requirements pertaining to treatment will be applicable for a CERCLA activity will 

depend on whether the prerequisites for RCRA applicability are satisfied. 

RCRA requirements for treatment of hazardous wastes apply at a CERCLA site 

only if: (a) the waste is a RCRA listed or characteristic waste; and (b) the CERCLA 

activity constitutes treatment of RCRA hazardous waste, as defined under RCRA. The 

general RCRA definition of treatment is: 

any method, technique, or process, including neutralization, designed to 

change the physical, chemical, or biological character or composition of any 

hazardous waste so as to neutralize such waste, or so as to recover energy or 

material resources from the waste, or so as to render such waste 

non-hazardous, or less hazardous; safer to transport, store, or dispose of; or 

amenable for recovery, amenable for storage, or reduced in volume. (40 CPR 

§260.10) 

When it is determined that these conditions are met, it is necessary to 

analyze the prerequisites included in the particular subpart that pertains to the 

type of treatment being considered, in order to determine which treatment 

requirements are applicable.24 Those prerequisites are described in detail in 

Exhibit 1-3 (Action-Specific Requirements) in the preceding chapter. 

Finally, the RCRA treatment requirements also contain special standards 

for ignitable or reactive waste, incompatible waste, and special categories of 

wastes. If the requirements pertaining to treatment are otherwise applicable, and if 

the wastes to be treated at the CERCLA site fall into any of the above special waste 

categories, the special treatment standards for such wastes will be applicable. 

23 See Section 2.7.3, Special Restrictions Applicable to Land Disposal, for 

discussion of beat demonstrated available treatment technologies (BDAT). 

24 RCRA treatment requirements are found in 40 CFR Part 264 Subpart J (Tanks), 

Subpart K (Surface Impoundments), Subpart L (Waste Piles), Subpart M (Land 

Treatment), Subpart O (Incinerators); 40 CPR Part 265 Subpart P (Thermal Treatment) 

and Subpart Q (Chemical, Physical, and Biological Treatment); in proposed standards 

for 40 CFR Part 264 Subpart X (Miscellaneous Treatment Units); and in 40 CFR Part 

268 (Land Disposal Restrictions). These requirements include design and operating 

standards. 

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2.7 RCRA REQUIREMENTS TRIGGERED BY DISPOSAL 

Remedial actions at a CERCLA site can frequently involve grading, excavating, 

dredging, or other measures that move contaminated materials from one place to 

another or in other ways disturb them. Such actions may constitute disposal of 

hazardous waste. 

Definition of Land Disposal 

EPA has concluded that moving RCRA hazardous waste (including hazardous waste 

that was originally disposed before the 1980 RCRA effective date) constitutes 

disposal when RCRA hazardous waste is moved from one unit and placed in another 

unit. It should be noted that disposal and placement are synonymous for purposes of 

the land disposal restrictions under RCRA. Therefore, land disposal is the same as 

placement into a land disposal unit and will be treated as the same action 

throughout the remainder of the chapter. 

In many cases, an area of contamination at a CERCLA site with differing 

concentration levels of hazardous substances, pollutants, or contaminants can be

viewed, as a single large “unit,” e.g., a single landfill. In such cases, when RCRA

hazardous waste is moved from one part of the unit to another, disposal/placement

has not occurred. For example, an area of generally dispersed waste containing an

existing or new landfill unit could be viewed as a single large landfill.

Consolidation of waste from throughout the area into the smaller “landfill” would

not constitute disposal/placement under this scenario, because the waste can be

viewed as being part of the same overall

land-based unit.

However, movement or hazardous waste into the area of contamination would make 

RCRA requirements triggered by disposal/placement applicable to the waste being 

managed and certain RCRA requirements (such as for closure) are applicable to the 

entire area of contamination where the waste is received. In addition, placement in 

a newly created or existing surface impoundment, or placement in a tank or 

incinerator and replacement on land, even within the larger area of contamination, 

would trigger applicability of RCRA requirements for disposal/placement, because the 

waste is being moved to different types of units. 

HSWA fines land disposal as the following 

[T]he term “land disposal”, when used with respect to a specified hazardous 

waste, shall be deemed to include, but not be limited to, any placement of 

such hazardous waste in a landfill, surface impoundment, waste pile, injection 

well, land treatment facility, salt dome formation, salt bed formation, or 

underground mine or cave. (RCRA §3004(k); HSWA §201(k)) 

RCRA requirements for disposal/placement of hazardous wastes in a landfill, 

waste pile, underground injection well, surface impoundment, or land 

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farm apply if (a) RCRA hazardous waste25 was placed/disposed into a land disposal 

unit after November 19, 1980 (or after the effective date of the appropriate land 

disposal regulations); or, (b) if actions at the CERCLA site constitute disposal as 

defined above. Exhibit 2-1 presents an illustration of selected actions that 

constitute disposal. General types of actions that do or do not constitute 

disposal/placement are summarized below. Actions which are not disposal/placement 

will not trigger the applicability of RCRA disposal requirements, such as landfill 

closure, minimum technology, or land disposal restrictions, but these requirements 

may be relevant and appropriate. 

EPA has determined that placement/disposal occurs when: 

N Wastes from different units are consolidated into one unit (other than a 

land disposal unit within an area of contamination); 

N Waste is removed and treated outside a unit and redeposited into the same 

or another unit (other than a land disposal unit within an area of 

contamination); 

N Waste is picked up from the unit and treated within the area of 

contamination in an incinerator, surface impoundment, or tank and then 

redeposited into the unit. (Does not include in-situ treatment.) 

Placement/disposal does not occur under the following circumstances: 

N Waste is consolidated within a unit (including an area of contamination 

that can be viewed as a single unit, see p. 2-15); 

N Waste is capped in place, including grading prior to capping; 

N Waste is treated in situ; 

N RCRA hazardous waste is processed within the unit in order to improve its 

structural stability for closure or for movement of equipment over the 

area. Under this scenario, the wastes are processed in order to stabilize 

the wastes prior to capping or for the purpose of moving machinery across 

the area. Wastes are not considered to be undergoing treatment in these 

situations. 

25 Disposal for purposes of §3004(b), (c), and (u) is not limited to 

characteristic waste -- it encompasses the statutory definition of hazardous waste 

in §1004(5) of RCRA. See Footnote 9. 

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EXHIBIT 2-1 

WHAT IS DISPOSAL/PLACEME

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If disposal of RCRA hazardous waste will occur as part of a CERCLA remedial 

action or has already occurred, several RCRA requirements may be applicable to that 

action.26 Depending on the precise action to be undertaken, these requirements may 

include the following: 

N Design and operating requirements in 40 CFR Part 264 for RCRA-regulated 

processes that constitute disposal; 

N Closure requirements in 40 CFR Part 264; and 

N Special RCRA requirements in 40 CFR Part 268 pertaining to the land 

disposal of particular hazardous wastes. 

Each of these categories of requirements and the actions that trigger then are 

described in greater detail in this section. 

2.7.1 DESIGN AND OPERATING REQUIREMENTS TRIGGERED BY DISPOSAL 

The RCRA regulations recognize that disposal of hazardous waste may take place 

in landfills, land treatment units, surface impoundments, waste piles, and by means 

of underground injection. The potentially applicable RCRA regulations include design 

requirements for landfills, waste piles, surface impoundments, and land treatment 

units. 

HSWA established new minimum technology requirements for such land disposal 

units. If new landfills or surface impoundments are constructed, or if replacements 

or lateral expansions27 of existing landfills or surface impoundments are used, they 

must satisfy these minimum technical requirements28 (two or more liners and a 

leachate collection system between 

26 In addition to RCRA disposal requirements, particular RCRA storage and 

treatment requirements also may be ARARs, depending on the action to be taken. See 

the discussion of these requirements in sections 2.5 and 2.6. 

27 “Lateral expansion” is defined to be an expansion of the boundaries of an 

existing unit. “Replacement” occurs if a unit is emptied and reused. Reuse occurs if 

original waste in removed from a unit and different waste (either treated or 

untreated from other units) in put into the unit. If waste is removed from a unit, 

treated, and put back into the same unit, replacement does not occur. 

28 RCRA §3001(o)(2) provides that if an owner/operator demonstrates to the 

Administrator, and if the Administrator finds that alternative design and operating 

practices and location characteristics will prevent the migration of a hazardous 

constituent into ground or surface water as effectively as minimum technology 

requirements, an exemption to the requirements shall be granted. 40 CFR Part 

264.301(b) specifies that the Administrator will consider four factors in granting 

the exemption: 1) the nature of the waste; 2) hydrogeology of the site; 3) the 

proposed alternative; 

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the liners; in addition, for landfills another leachate collection system must be 

placed above the top liner)(RCRA 3004(o)). EPA proposed minimum technology 

requirements for liners and leak detection systems for new land disposal units on 

May 29, 1987 (52 FR 20218). As these and other additional HSWA standards become 

effective, new landfills, surface impoundments, waste piles, land treatment units, 

and underground tanks also will be required to satisfy additional leak detection 

requirements.29 

Surface impoundments in existence on November 8, 1984, must be retrofitted to 

meet minimum design standards by November 8, 1988 (RCRA 3005(j)), if they will be in 

operation after that date, unless they meet certain statutory exceptions. Thus, use 

after November 8, 1988, of existing surface impoundments at a CERCLA remedial action 

site will trigger specific retrofitting requirements for surface impoundments, and 

construction of new units must conform to specific minimum technological 

requirements or obtain a waiver or exemption from them if RCRA hazardous waste will 

be disposed in the units. 

2.7.2 CLOSURE REQUIREMENTS 

Application of Closure Requirements. Excavation, consolidation, and other 

similar actions that move RCRA hazardous waste across the unit boundary, thereby 

constituting disposal under the interpretation described above in section 2.7.1, 

will trigger the closure requirements for the units into which the waste is being 

disposed. In particular, if soil cleanup is part of the remedy, movement of the soil 

containing RCRA hazardous waste across a unit boundary will make the closure 

requirements for either clean closure or closure in place (disposal or landfill 

closure) applicable to the unit into which the waste is placed.30 

If RCRA hazardous wastes deposited at a site before November 19, 1980, are 

not moved out, the RCRA, requirements for disposal are not applicable, since the 

jurisdictional prerequisites for their applicability are not satisfied. However, 

because they are designed to address a problem similar to that being encountered at 

the CERCLA site, these requirements may be relevant and appropriate, taking into 

account site-specific circumstances. See p. 1-65 

and 4) all other factors affecting the leachate. 

29 A notice of proposed rulemaking was issued on May 29, 1987 (52 FR 20218) 

discussing leak detection regulations. 

30 EPA has proposed requirements for “hybrid” or alternate closure options 

under RCRA (52 FR 8712, March 19, 1987). Such closures would combine elements of 

clean closure and the closure in place alternatives. Because the rules on hybrid 

closures are proposed regulations, and have not been promulgated as final rules, 

they are not applicable. However, the hybrid closure may be used where closure is 

not applicable, but is relevant and appropriate. Additional RCRA corrective action 

technical requirements, discussed above, also may affect this issue. 

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for a detailed discussion of the determination that a requirement is both relevant 

and appropriate. 

Types of Closure. RCRA regulations on clean closure (removal and 

decontamination) are found in 40 CFR §§264.111, 264.228, and 264.258. They require 

all waste residues and contaminated containment system components (e.g., liners), 

contaminated subsoils, and structures and equipment contaminated with waste and 

leachate to be removed and managed as hazardous waste or decontaminated before the 

site management is completed. The level of cleanup required has been interpreted to 

be “drinkable leachate” and “edible soils.” The basic intent of this provision is to 

allow the site to remain without care and supervision after the clean closure has 

been completed. 

RCRA regulations affecting disposal or landfill closure, in contrast, require 

the site to be capped with a final cover designed and constructed to provide 

long-term minimization of the migration of liquids through the capped area, and to 

maintain its integrity over time while functioning with minimum maintenance (40 CFR 

§§264.111, 264.228, 264.258, and 264.310). This type of closure, however, 

anticipates that post-closure care and maintenance will be carried out at the 

facility for at least 30 years after closure (40 CFR §264.117 (a)(1)).31 

Even when the waste found at a CERCLA site in a RCRA hazardous waste, the 

situation or waste management activity at the CERCLA site may not technically match 

the situation addressed by the regulation, and the RCRA requirement would therefore 

not be applicable. (Even if the hazardous waste is not identical to a hazardous 

waste, but is very similar, some hybrid closure requirements may be applicable.) 

RCRA closure requirements may nevertheless be relevant and appropriate if other 

factors are sufficiently similar. 

For example, if RCRA hazardous waste was disposed before 1980 in a unit like 

those covered under RCRA and the remedial action is designed to leave waste in 

place, a portion of one or more of the closure requirements may be relevant and 

appropriate. Depending on site circumstances and the remedy selected either clean 

closure, landfill closure, or hybrid closure, which combines elements of both, might 

be used. 

Two scenarios in which a hybrid or alternate approach to closure may occur 

(where RCRA closure is not applicable but may be relevant and appropriate) are the 

following: 

Scenario 1: Although residual contamination is above health-based levels 

(i.e., clean closure levels) contamination does not pose a direct contact threat or 

impact ground water. Residual leachate contaminant levels exceed health-based 

levels. A type of alternate closure, which may be termed “alternate-clean” closure, 

could be used. No covers or long-term management 

31 Minimal capping requirements (e.g., permeability test) are found in 

proposed regulations, but much of the information an capping is found in guidance. 

These are not ARAR, but can be used as TBC, as appropriate. 

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would be required. However, fate and transport modeling and model verification is 

necessary to ensure that the ground water is usable. In this situation, a notice in 

the property dead may be necessary indicating the presence of hazardous substances. 

Scenario 2: Removal of waste material results in residuals that potentially 

pose a direct contact threat but do not pose a threat to ground water. Residual 

leachate contamination does not exceed health-based levels. This type of alternate 

closure, which may be termed "alternate-landfill" closure, consists of a cover to 

address the direct contact threat. The cover, however, may be permeable. Limited 

long-term management would include site and cover maintenance and minimal 

ground-water monitoring. For this scenario, institutional controls, including 

land-use restrictions, would be necessary, based on site-specific considerations. 

If, however, the waste is widely dispersed and not contained in a RCRA-type 

unit, use of RCRA closure may not be appropriate. For instance, RCRA covers are 

generally not appropriate for large municipal landfills or large mining waste sites, 

where the waste is generally of a low toxicity and the site encompasses an area that 

bears little resemblance to the discrete units regulated under RCRA Subtitle C. 

2.7.3 SPECIAL RESTRICTIONS APPLICABLE TO LAND DISPOSAL 

Certain activities undertaken involving specific wastes of a remedial action 

may be subject to the special restrictions on land disposal of hazardous wastes. 

These Land Disposal Restrictions (LDR), established by HSWA, may be required if 

placement occurs (placement into a unit is defined as identical to disposal; see p. 

2-15 for the HSWA definition of land disposal). These amendments to RCRA prohibit 

the land disposal of certain untreated hazardous wastes or the residuals of treated 

hazardous waste not meeting specified standards. 

The following schedule identifies the categories of waste and the date on 

which the particular waste category will be banned from land disposal: 

WASTE 

Spent solvent wastes

(F001, F002, F003, F004, F005)

Dioxin-containing wastes

F020, F021, F022, F023, F026,

F027, F028)

California list wastes

First third of all ranked and

listed RCRA hazardous wastes

BAN EFFECTIVE DATE 

November 8, 1986 

November 8, 1986 

July 8, 1987 

August 8, 1988 

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Second third of all ranked and 

listed RCRA hazardous wastes 

All remaining ranked and listed 

RCRA hazardous waste and all RCRA 

characteristic hazardous wastes 

Any RCRA hazardous waste listed or 

identified under RCRA 3001 after 

November 8, 1984 

June 8, 1989 

May 8, 1990 

Within six months of 

listing or 

identification 

RCRA wastes treated in accordance with treatment standards set by EPA under 

RCRA §3004(m) are not subject to the prohibitions and may be land disposed.32 The 

restrictions on land disposal of hazardous wastes apply to RCRA hazardous waste 

placed after the effective prohibition date. Wastes land disposed before the 

effective prohibition date (and not removed) are not subject to the restrictions. 

The treatment standards are to be achieved using the best demonstrated 

available treatment technologies (BDAT). The land disposal restrictions regulations 

establish treatment standards that are based on BDAT for a given waste. A BDAT 

treatment standard can take one of two forms: 

(1) a concentration level to be achieved (i.e., a concentration-based 

standard), or 

(2) a specified technology that must be used (i.e., a "technology-based" 

standard). 

If the standard is concentration-based, any treatment technology that can 

achieve the standard may be used. If the standard is technology-based, that 

technology must be used, unless an exemption exists or a variance is granted. Thus, 

wastes must be treated according to the appropriate standard before wastes or the 

treatment residuals of wastes can be disposed in or on the land. 

HSWA does provide certain CERCLA remedial actions with exemptions from 

compliance with the land disposal restrictions. Until November 8, 1988, disposal of 

soil and debris contaminated with solvents, dioxins, or California list wastes 

resulting from a response action taken under §§104 or 106 of CERCLA is not subject 

to the land disposal restrictions. EPA extended the exemption for these soil and 

debris wastes until November 8, 1990 (and until August 8, 1990 for certain first 

third wastes). On November 7, 1986, when the Agency promulgated the first set of 

land disposal restrictions, it also established additional temporary exemptions for 

several waste categories and provided a schedule of ban effective dates by waste 

types. 

32 Section 3004 (m) provides that EPA shall “...promulgate regulations 

specifying...levels or methods of treatment...which substantially diminish the 

toxicity of the waste or substantially reduce the likelihood of migration of the 

hazardous constituents from the waste.” 

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In addition, HSWA authorizes EPA to grant national variances from the 

effective date of the land disposal restrictions based upon a lack of capacity to 

treat the wastes. A capacity variance has been granted for Superfund wastes 

containing spent solvents and dioxins that are not soil and debris waste until 

November 8, 1988. A capacity variance also exists for a portion of the California 

list wastes; for the wastes not granted a variance the testi restrictions are 

currently effective. Rules are currently being developed to establish BDAT levels 

for contaminated soil and debris. More exemptions and variances may be granted in 

the future, as additional regulations are promulgated for remaining wastes. See the 

following list of exemptions and variances. 

Waste 

All solvent, dioxin, and 

California list soil and debris 

wastes from CERCLA response and 

RCRA corrective actions 

All RCRA-listed dioxin wastes 

All RCRA-listed solvent wastes 

from CERCLA response and RCRA 

corrective actions (non-soil and 

debris) 

Small quantity generator (100 

kg-1000 kg per month) of RCRA 

solvent wastes 

Solvent-water mixtures, solvent 

containing sludges, or solventcontaminated soil or solids (nonCERCLA or RCRA corrective action) 

containing less than 1 percent 

total F001-F005 solvent 

constituents as initially 

generated 

Liquid and non-liquid hazardous 

wastes containing HOCs in total 

concentration greater than or 

equal to 1000 mg/l, or 1000 

mg/kg, respectively (except for 

dilute HOC wastewaters) 

Exemption/Variance 

Statutory two year exemption from 

effective dates until 11/8/88; 

exemption extended to 11/8/90 

(exemption for certain first thirds 

granted until 8/8/90) 

Regulatory two-year national variance 

until 11/8/88 

Regulatory two-year national variance 

until 11/8/88 

Regulatory two-year national variance 

until 11/8/88 

Regulatory two-year 

variance until 11/8/88 

Regulatory two-year national 

variance until 7/8/89 

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2.7.4 CORRECTIVE ACTION AND GROUND-WATER PROTECTION REQUIREMENTS 

RCRA contains several authorities under which corrective action requirements 

will eventually be promulgated, and because of the similarity of corrective action 

under RCRA to CERCLA cleanup, these requirements are likely to be potential ARARs in 

many remedial action situations. 

40 CFR Part 264 Subpart F establishes requirements for ground-water protection 

for RCRA-regulated land disposal units (waste piles, surface impoundments, land 

treatment areas, and landfills) that received hazardous waste after July 26, 1982. 

In addition, releases of hazardous wastes or constituents from solid waste 

management units (SWMUs) must be cleaned up in accordance with 40 CFR §264.101. The 

existing corrective action requirements in 40 CFR §264.101 require the 

owner/operator of a facility seeking a permit for the treatment, storage, or 

disposal of hazardous waste to institute corrective action as necessary to protect 

human health and the environment for all releases of hazardous waste or constituents 

from any solid waste management unit at the facility, regardless of the time at 

which waste was placed in such unit. 

In addition to the regulatory requirements specified by 40 CFR Part 264 

Subpart F, HSWA added authority in RCRA §3004(u) for corrective action for all 

releases from solid waste management units at RCRA treatment, storage, or disposal 

facilities of hazardous waste or hazardous constituents to air, surface waters, 

soil, or ground water. Detailed corrective action regulations are currently being 

developed; in the interim, corrective actions are being implemented on a 

case-by-case basis. The corrective action standards under §3004(u), when they are 

promulgated, may be potentially applicable to CERCLA activities conducted at a 

facility subject to RCRA Subtitle C regulation, or if the response action itself 

involves treatment, storage, or disposal of a RCRA hazardous waste and potentially 

relevant and appropriate for similar response actions and wastes. While corrective 

actions requirements are specified in a RCRA permit (40 CFR §264.101), CERCLA 

on-site remedial actions are not required to obtain permits; however, substantive 

corrective action requirements under §3004(u), when promulgated, may be potential 

ARARs. This manual will be updated to include further corrective action requirements 

when they are promulgated. 

The two general types of ground-water corrective action requirements that 

should be analyzed are ground-water monitoring under RCRA Subpart F and ground-water 

protection (contaminant concentration) standards. 

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2.7.4.1 Ground-Water Monitoring Requirements under Subpart F 

There are three general types of ground-water monitoring outlined in 40 CFR 

Part 264 Subpart F:33 

N Detection monitoring (40 CFR §264.98) 

N Compliance monitoring (40 CFR §264.99) 

N Corrective action monitoring (40 CFR §264.100) 

If the CERCLA remedial actions involve creation of a new unit to dispose of RCRA 

hazardous waste, the three types of monitoring contained in Subpart F would be 

applicable.34 In all other cases, corrective action monitoring (40 CFR §264.100) 

will be applicable to remedial actions undertaken at exiting RCRA units or where the 

disposal of RCRA hazardous waste (as defined) occurs at an exiting area of 

contamination as part of the remedial action. Corrective action monitoring is 

generally triggered by remedial action involving management of RCRA wastes. Such 

monitoring may be required for three years following completion of the remedy to 

ensure that the clean-up level is not exceeded.35 

2.7.4.2 Ground-Water Protection Standards under Subpart F 

Evaluation of the RCRA ground-water protection standards under Subpart F as 

ARARs should be done in the context of the Superfund approach for establishing and 

meeting ground-water protection goals. The Superfund approach derives its groundwater restoration goals primarily from the vulnerability, use, and value of the 

contaminated ground waters to their beneficial uses (e.g., restore current or 

potential sources of drinking water to drinking water quality ) within time frames 

established as appropriate for 

33 These requirements are described in detail in RCRA Ground-Water Monitoring 

Technical Enforcement Guidance Document, (OWPE/OSWER), September 1986. 

34 For CERCLA actions which involve treatment, storage, or disposal of RCRA 

hazardous waste after July 26, 1982, the 40 CFR Part 264 standards promulgated on 

the date will generally be applicable. If RCRA hazardous waste was treated, stored, 

or disposed at the site before the effective date of these Part 264 standards, the 

Part 264 standards would not be applicable if the CERCLA action does not involve 

current treatment, storage, or disposal but may be relevant and appropriate. 

35 Placement of upgradient (background) monitoring wells and RCRA procedures 

for sampling and analysis are described in guidance for implementing 40 CFR Part 264 

Subpart F. These procedures and guidance, however, are not ARAR, but may be 

considered in the development of ground-water monitoring plans at CERCLA sites. 

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the specific circumstances at a given site. When contaminated ground water is 

identified, the program undertakes an analysis to determine the characteristics of 

that ground water, using the framework laid out in EPA’s Ground-Water Protection 

Strategy and EPA’s Ground-Water Classification Guidelines as a guide. Remediation 

levels are then established for the site based on an analysis of ARARs and other 

requirements “to-be-considered” in determining protective levels. Alternative time 

frames for cleanup and different technologies that might be employed to achieve the 

selected remediation level should then be considered and analyzed against a series 

of criteria (the Superfund approach is discussed in greater detail in Chapter 5). 

The requirements of 40 CPR Part 264 come into play as ARARS are analyzed an 

part of determining the appropriate remediation level for a site. 40 CFR §264.94 

established three categories of ground water protection standards which are 

considered by Superfund as potentially applicable or relevant and appropriate 

requirements: background concentrations, RCRA Maximum Concentration Limits (MCLs), 

and Alternate Concentration Limits (ACLs). In general, Superfund will find MCLs 

under the Safe Drinking Water Act (SDWA MCLs) the relevant and appropriate 

requirements for most sites. In complying with SDWA MCLs, cleanup will also be 

consistent with RCRA MCLs. When no MCL has been established, Superfund remedial 

actions substantively meet RCRA Subpart F requirements in one of two ways. In 

general, for ground waters with the characteristics of Class I and II aquifers 

(i.e., those whose beneficial use will be as drinking water supply), the Superfund 

program establishes a remediation level that is the equivalent of a health-based 

(i.e., assuming human exposure) ACL under RCRA. For ground waters with the 

characteristics of Class III (i.e., cannot be used as drinking water because of high 

salinity or naturally occurring widespread contamination) and where MCLs would not 

be relevant and appropriate, Superfund establishes levels consistent with 

exposure-based (i.e., assuming low likelihood of human exposure) ACLs under RCRA. 

Background levels will generally not be adopted by the Superfund program in 

establishing remediation levels in Class III ground waters. 

The procedure for establishing site-specific ACLs under RCRA is specified in 

40 CFR §264.94, and requires a finding that the hazardous constituent in the ground 

water will not pose a substantial present or potential hazard to human health or the 

environment as long as the ACL is not exceeded. Consideration of numerous factors is 

required, affecting primarily: 

N Potential adverse effects on ground-water quality, taking into 

consideration physical and chemical characteristics of the waste, 

hydrogeological characteristics of the setting, the quantity and direction 

of ground-water flow, proximity and withdrawal rate of ground-water users, 

current and future uses of ground water, the existing quality of the area 

ground water, including other sources of contamination, the potential for 

health risks, the potential for other damage, the persistence and 

permanence of adverse effects; and 

N Potential adverse effects on hydraulically-connected surface water, taking 

into consideration factors similar to those listed above. 

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In evaluating use of ACLs, Superfund considers these and other factors in 

establishing site-specific remediation levels. 

CERCLA §121(d)(2)(B)(ii) provides a set of three additional conditions 

limiting the use of ACLs at Superfund sites where MCLs would otherwise be applicable 

or relevant and appropriate. The statute prohibits use of any process for 

establishing ACLs for hazardous constituents in ground water (where there is not a 

projected entry into surface water) for purposes of an on-site cleanup that assumes 

a point of human exposure beyond the boundaries of the facility, except where three 

specific conditions are met: “(1) There are known and projected points of entry of 

such groundwater into surface water; and (2) on the basis of measurements or 

projections, there is or will be no statistically significant increase of such 

constituents from such groundwater in such surface water at the point of entry or at 

any point where there is reason to believe accumulation of constituents may occur 

downstream; and (3) the remedial action includes enforceable measures that will 

preclude human exposure to the contaminated groundwater at any point between the 

facility boundary and all known and projected points of entry of such groundwater 

into surface water.” If the conditions are met, the assumed point of human exposure 

may be at such known and projected points of entry. 

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CHAPTER 3 

GUIDANCE FOR COMPLIANCE WITH CLEAN WATER ACT REQUIREMENTS 

3.0 INTRODUCTION 

This chapter addresses CERCLA compliance with Clean Water Act (CWA) applicable 

or relevant and appropriate requirements (ARARs) in remedial actions.1 The CWA has 

distinct regulatory features that include site-specific pollutant limitations and 

performance standards which are applied primarily for protection of surface water 

quality (e.g., regulating point and non-point source discharges to surface water).2 

Unlike the RCRA program described in Chapter 2, the CWA does not have specific 

technology design and operating requirements that can be linked to specific remedial 

technologies. It does, however, have effluent limitations guidelines and standards 

supported by technological bases for specified industrial categories, that may be 

relevant and appropriate to CERCLA actions. 

This chapter provides guidance for CERCLA site personnel based upon the type 

of effluent discharge activity likely to occur at CERCLA sites.3 Several types of 

discharges regulated under the CWA could occur at a CERCLA site: direct discharge to 

surface water or to oceans, indirect discharge to a publicly owned treatment works 

(POTW), and discharge of dredged or fill material into the waters of the U.S. 

(including wetlands). This chapter is organized into four sections: 

N Section 3.1 provides a general overview of the 

provisions of the CWA and how they are implemented; 

N Section 3.2 provides guidance for compliance with direct 

discharge requirements; 

N Section 3.3 provides guidance for compliance with indirect discharge 

requirements; and 

N Section 3.4 provides guidance for compliance with dredge 

and fill requirements. 

1 The requirements of CERCLA §121 generally apply as a matter of law only to 

remedial actions. However, as a matter of policy, EPA will attain ARARs to the 

greatest extent practicable considering the exigencies of the situation at the site 

when carrying out removal actions. 

2 Water quality criteria under the CWA may also be relevant and appropriate to 

cleanup of surface and ground water per CERCLA §121(d)(2)(B)(i). 

3 Section 118(a)(2) of the CWA as amended by the Water Quality Act of 1987 

specifically requires EPA to “...take the lead in the effort to meet...” the goals 

embodied in the Great Lakes Water Quality Agreement (GLWQA) with particular emphasis 

on goals related to toxic pollutants. The provisions of the GLWQA will be very 

pertinent to sites having discharges to the Great Lakes drainage basin. 

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3.0.1 ON-SITE ACTIONS: COMPLIANCE WITH SUBSTANTIVE REQUIREMENTS 

CERCLA §121(e) states that no Federal, State or local permit (e.g., a permit 

for a direct discharge to surface waters) is required for the portion of any removal 

or remedial action conducted entirely on-site. This permit exemption also applies to 

any activities that occur on-site prior to the response action (e.g., pump tests 

during the RI/FS).4 For purposes of this guidance, a direct discharge of Superfund 

wastewaters would be “on-site” if the receiving water body is in the area of 

contamination or is in very close proximity to the site and necessary for 

implementation of the response action (even if the water body flows off-site). 

Superfund sites are not required to comply with administrative requirements 

associated with the permitting process for on-site actions. However, remedies 

selected must be protective of human health and the environment, and must meet 

substantive requirements under any Federal environmental law or more stringent 

promulgated State environmental or facility siting law that are identified as 

applicable or relevant and appropriate. 

It is the responsibility of the lead agency to ensure that substantive 

requirements for direct on-site discharges to surface waters and other on-site 

actions are identified and complied with even though a permit incorporating that 

standard of control is not required. In most cases, this responsibility can be 

carried out effectively if the appropriate Regional and State Water personnel are 

involved early and continuously in the Superfund process. Section 3.2.4 provides 

more detailed guidance on such coordination. 

3.0.2 OFF-SITE ACTIONS: COMPLIANCE WITH SUBSTANTIVE AND ADMINISTRATIVE 

REQUIREMENTS 

Off-site discharges from CERCLA sites directly to receiving waters or 

indirectly to POTWs must comply with applicable Federal, State and local 

substantive requirements and are not exempt from formal administrative 

permitting requirements.5 The formal administrative permitting requirements 

for off-site direct discharges are described further in section 3.2.5. 

4 EPA interprets “on-site” for permitting purposes to mean the areal extent of 

contamination and all suitable areas in very close proximity to the contamination 

necessary for implementation of the response action. Actions taken by EPA, other 

Federal agencies, States or private parties undertaking removal or remedial actions 

under CERCLA §§104, 106, or 122 are covered by the §121(e) permit exemption. 

5 The term “indirect discharge” is used when a source discharges waste to a 

POTW that treats the waste. Often, the POTW then discharges the treated wastewater 

to receiving waters. 

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3.1 OVERVIEW OF THE CLEAN WATER ACT 

The objective of the Clean Water Act (CWA) is to restore and maintain the 

chemical, physical, and biological integrity of the nation’s waters. This objective 

is achieved through the control of discharges of pollutants to navigable waters. 

This control is implemented through the application of Federal, State and local 

discharge standards. This section provides an overview of the CWA including a 

discussion of the regulated sources and pollutants, limitations and standards, and 

how limitations and standards are applied to regulated sources. A summary discussion 

of specific CWA provisions is provided in the Appendix. 

3.1.1 REGULATED SOURCES AND POLLUTANTS 

The CWA prohibits the unpermitted discharge of any pollutant or combination of 

pollutants to waters of the United States from any point source.6 A point source is 

defined as: 

. . . any discernible, confined, and discrete conveyance, including but not 

limited to any pipe, ditch, channel, tunnel, conduit, well, discrete 

fissure, container, . . . from which pollutants are or may be discharged. 

(40 CFR §122.2) 

A pollutant is defined for regulatory purposes to include: 

. . . dredged spoil, solid waste, incinerator residue, filter 

backwash, sewage, garbage, sewer sludge, munitions, chemical 

wastes, . . . and industrial, municipal, and agricultural 

waste discharged into water. (40 CFR §122.2) 

All pollutants are regulated under the CWA. For the purpose of regulation, CWA 

§301(b)(2) divides the pollutants into the following three categories: 

N Priority pollutants: the 126 individual toxic pollutants contained in 

65 toxic compounds or classes of toxic compounds adopted by EPA 

pursuant to Section 307(a)(1) of the CWA, including, for example. 

asbestos, benzene, and chloroform; 

N Conventional pollutants: pollutants classified, pursuant to CWA 

§304(a)(4), as biochemical oxygen demanding (BOD), total suspended 

solids (TSS), fecal coliform, oil and grease, and pH; and 

6 “Waters of the U.S.” is defined broadly in 40 CFR §122.2 and includes 

essentially any water body (including navigable waters) and most wetlands. 

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N Nonconventional Pollutants: any Pollutant not identified as either 

conventional or priority, i.e., ammonia nitrogen, chemical oxygen 

demand (COD), total organic carbon, total solids, and nonpriority 

toxic pollutants (40 CFR 122.21(l)(2)). 

3.1.2 LIMITATIONS AND STANDARDS 

The CWA requires the establishment of guidelines and standards to control the 

direct or indirect discharge of pollutants to waters of the U.S. Effluent 

limitations developed for the pollutants regulated under the CWA are applied to 

point source dischargers on a case-by-case basis. The standards required by the CWA, 

and the regulations promulgated to implement these standards (discussed in greater 

detail in sections 3.2, 3.3, and 3.4), include: 

N Technology-Based Guidelines and Standards. The standards of control 

for direct discharges are derived from Title III of the CWA. CWA 

§301(b) requires all direct dischargers to meet technology-based 

requirements. These requirements include, for conventional 

pollutants, application of the best conventional pollutant control 

technology (BCT), and for toxic and nonconventional pollutants, the 

best available technology economically achievable (BAT).7 EPA has 

determined the technology-based requirements through effluent 

limitations guidelines for specific categories of industries, which 

are transformed into specific discharge limits by permit writers. 

Where effluent guidelines for a specific industry or industrial 

category do not exist, e.g., CERCLA sites, BCT/BAT technology-based 

treatment requirements are determined on a case-by-case basis using 

best professional judgment (BPJ). Once the BPJ determination in made, 

the numerical effluent discharge limits are derived by applying the 

levels of performance of a treatment technology to the wastewater 

discharge. 

N Water Quality Criteria. CWA §304 requires EPA to publish water 

quality criteria for specific "pollutants, or their byproducts.” EPA 

develops two kinds of water quality criteria: one for protection of 

human health and another for protection of aquatic life. Federal 

7 BAT is the major national method of controlling the direct discharge of 

toxic and non-conventional pollutants to waters of the U.S. Effluent limitations 

achieved through application of BAT represent the best economically achievable 

performance of plants within an industrial category or subcategory. BCT is the level 

of technology control developed for conventional pollutants. 

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water quality criteria are non-enforceable guidelines used by 

States to set water quality standards for surface water. To date a 

total of 82 water quality criteria documents have been made 

available from the National Technical Information Service (NTIS). 

EPA has published notice of these documents as they have become 

available (45 FR 79318, November 28, 1980; 49 FR 5831, February 

15, 1984; 50 FR 30784, July 29, 1985; 51 FR 22978, June 28, 1986; 

51 FR 43665, December 3, 1986; 51 FR 8012, March 7, 1986; 52 FR 

6213, March 2, 1987). Water quality criteria may be relevant and 

appropriate to cleanup of surface and ground water at CERCLA sites 

(CERCLA §121(d)(2)(B)(i)). 

N Water Quality Standards. CWA §303 requires States to develop water 

quality standards based on Federal water quality criteria to 

protect existing and attainable use or uses (e.g., recreation, 

public water supply) of the receiving waters. CWA §301(b)(1)(C) 

requires that pollutants contained in direct discharges be 

controlled beyond BCT/BAT equivalents when necessary to meet 

applicable water quality standards. Where State standards contain 

numerical criteria for toxic pollutants, appropriate numerical 

discharge limitations may be derived for the discharge. Where 

State standards are narrative, e.g., “no toxic materials in toxic 

amounts,” either the whole-effluent or the chemical-specific 

approach is generally used as the standard of control. 

N Ocean Discharge Regulations. CWA §403 prohibits discharges into 

marine waters without an NPDES permit. A permit will not be issued 

if the discharge will cause unreasonable degradation to the marine 

environment. The permit, issued pursuant to 40 CFR Part 125, 

Subpart M, may contain monitoring requirements and effluent 

discharge limitations based upon limiting permissible 

concentrations described in 40 CFR Part 227, Subpart G. 

Substantive requirements of ocean discharge regulations are 

potential ARARs for on-site CERCLA action. 

N Pretreatment Standards. CWA §307(b) requires the establishment of 

pretreatment standards for the control of pollutants discharged 

into POTWs by industrial and other nondomestic sources, i.e., 

indirect dischargers. The purpose of the standards is to prevent 

the discharge of pollutants that pass through (are not susceptible 

to treatment by the POTW) or interfere with the POTW (inhibit or 

destroy the operations, contaminate sludge, or endanger the health 

of POTW workers). For many 

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industries, EPA has promulgated national categorical pretreatment 

standards for toxic pollutants. However, such standards do not cover 

all industrial categories or regulate all of the pollutants 

discharged to POTWs. Therefore, EPA’s regulations further impose 

general prohibitions (pass through and interference) and specific 

prohibitions (see section 3.3.1) on indirect discharges. These 

prohibitions apply directly to all nondomestic sources and are 

implemented through the development and enforcement of local limits, 

i.e., pretreatment requirements applied to wastewater discharges 

before they reach the POTW. 

N Dredge and Fill Standards. CWA §404 regulates the discharge of 

dredged or fill material into waters of the U.S. This program is 

implemented through regulations set forth at 33 CFR Parts 320 through 

330 and 40 CFR Part 230. These regulatory requirements ensure that 

proposed discharges are evaluated with respect to impacts on the 

aquatic ecosystem. The benefits that reasonably may be expected to 

accrue from the dredge and fill activity must be balanced against its 

reasonably foreseeable detriments (see section 3.4.3). Section 103 of 

the Marine Protection Research and Sanctuaries Act regulates 

discharge of dredged material into oceans. 

3.2 GUIDANCE FOR COMPLIANCE WITH DIRECT DISCHARGE REQUIREMENTS 

3.2.1 TYPES OF DIRECT DISCHARGES 

Several types of cleanup activities could be considered “direct discharges” 

from a point source under the CWA. These activities, which trigger action-specific 

requirements for the discharge, include: 

N On-site waste treatment in which wastewater8 is discharged directly 

into a surface water body in the area of contamination or in very 

close proximity to this area via a pipe, ditch, conduit, or other 

means of “discrete conveyance.” 

N Off-site treatment in which wastes from the site are piped or 

otherwise discharged through a point source to an off-site surface 

water. 

8 Wastewater may include contaminated ground water pumped, treated, and 

discharged to surface water. 

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N Any remedial action in which site runoff would be channeled directly 

to a surface water body via a ditch, culvert, storm sewer, or other 

means. 

It should be noted that contaminated ground water that naturally flows into 

surface waters is not considered a point source discharge. However, such 

contaminated ground water which enters a surface water may be subject to Federal 

water quality criteria or State water quality standards. 

3.2.2 OVERVIEW OF NPDES PERMITS 

The National Pollutant Discharge Elimination System (NPDES) program is the 

national program for issuing, monitoring, and enforcing permits for direct 

discharges. The CWA established the NPDES permit program under §402 of the Act to 

implement the regulations, limitations, and standards promulgated pursuant to §§301, 

304, 306, 307, 308, and 403 of the CWA for point source direct discharges. The NPDES 

program is implemented under 40 CFR Parts 122-125. NPDES permits contain applicable 

effluent standards (i.e., technology-based and/or water quality-based), monitoring 

requirements, and standard and special conditions for discharge. The NPDES program 

is administered by EPA and by State agencies authorized by EPA to administer a State 

program equivalent to the Federal NPDES program. Regardless of whether States are 

authorized to administer the NPDES program, they may establish more stringent 

requirements than those contained in the Federal program. 

3.2.3 GUIDELINES FOR DETERMINING SUBSTANTIVE REQUIREMENTS 

Both on-site and off-site discharges from CERCLA sites to surface waters are 

required to meet the substantive CWA NPDES requirements, including discharge 

limitations, monitoring requirements, and best management practices. These 

requirements will be contained in an NPDES permit for off-site CERCLA discharges 

(see section 3.2.5). For on-site discharges from a CERCLA site, these substantive 

requirements must be identified and complied with even though an NPDES permit will 

not be obtained. The following sections describe the substantive requirements of the 

CWA as implemented through the NPDES program. 

3.2.3.1 Technology-Based Standards 

The wastewater treatment technologies proposed in considering alternatives for 

a CERCLA site are required to meet BCT/BAT requirements (see section 3.1.2). Due to 

the lack of national effluent limitations guidelines for CERCLA site wastewater 

discharges, technology-based effluent limitations have to be imposed on a 

case-by-case basis. Therefore, best professional judgment (BPJ) is used to identify 

BCT/BAT equivalent discharge requirements. 

During an initial BPJ evaluation, a proposed CERCLA response alternative 

should be reviewed to ensure the use of treatment technologies that have been proven 

effective to treat the pollutants or classes of pollutants present in the 

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CERCA site wastewater (see p. 3-36, Exhibit 3-1 which is a list of the development 

documents that provided the basis for the BAT categorical standards). Then, 

numerical effluent limitations or treatment efficiency requirements can be developed 

for the specific situation (section 3.2.4 addresses how to coordinate with water 

program offices in order to identify substantive requirements). Factors that must be 

evaluated to determine the appropriateness of the selected technology as BCT/BAT 

include the process employed, the engineering aspects of the application of various 

types of control techniques, process changes, the cost of achieving such effluent 

reduction, non-water quality environmental impact, and other appropriate factors.9 

(See CWA §304 and 40 CFR §§122 and 125.3(c)(3)). RPMs will follow a process similar 

to a BPJ determination in developing numerical effluent limitations. State or 

Regional water quality staff may be consulted during the development of effluent 

limitations. 

A direct method for initially establishing effluent discharge limits for 

direct discharges an a case-by-case basis is to identify and use existing data on 

the application of treatment technologies to the classes of wastes found at CERCLA 

sites. The data needed to apply existing treatment technology performance to a 

CERCLA site include the following: 

N Description of wastes; 

N Concentration of pollutants in waste; 

N Engineering information - flow rates, volume, treatability 

information; and 

N Expected treatment (removal/destruction) efficiency. 

In general, the considerations involved in using technology-based information 

to set case-by-case discharge limits include the following: 

N Performance data should be based on the removal of identical or 

chemically similar pollutants to those found in the CERCLA discharge; 

N Performance data should pertain to the treatability of wastewaters 

containing approximately the same pollutant concentration levels an 

those found in the CERCLA discharge; 

9 In determining BAT for a specific source, costs are considered but are 

generally not balanced against pollutant removal benefits. In determining BCT, the 

reasonableness of the relationship between the costs of obtaining a reduction in 

effluents and the effluent reduction benefits is considered. Further, this 

relationship is compared to the cost and level of reduction of such pollutants by a 

POTW. 

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N Compositional differences between the CERCLA discharge and the 

discharge for which treatability data are available should be 

noted; 

o The variability in pollutant concentration levels in the CERCLA 

discharge may affect treatability; and 

N Major differences between the average flow at the discharge for 

which treatability data exist and the average flow of the CERCLA 

discharge should be noted. 

As mentioned above, in order to effectively assess wastewater treatability 

using technology-based limitations, available performance data should be obtained 

which document the efficiency of existing treatment technologies in treating 

wastewater of similar composition. If such data is not available, pilot tests may 

have to be conducted. Treatment technologies are usually geared toward the removal 

of general classes of pollutants (e.g., air stripping units remove volatile 

organics). Removal efficiencies for specific pollutants within any general category 

may vary when using any particular treatment technology and may necessitate close 

control (e.g., pH adjustment for precipitation of metals). 

Further guidance regarding the use of BPJ to develop technology-based 

discharge limitations can be found in the following Agency guidance manuals: 

N Training Manual for NPDES Permits Writers, March 1986. 

N Development of Case-By-Case Discharge Permits Under 

the NPDES and Pretreatment Programs (Draft), 

U.S. EPA, Region 8, October 1986. 

N Developing Requirement for Direct and Indirect 

Discharges of CERCLA Wastewater (Draft), March 1987. 

3.2.3.2 Water Quality Criteria 

CERCLA §121 states that hazardous substances, pollutants, or contaminants 

left on-site at the conclusion of the remedial action shall attain Federal water 

quality criteria where they are relevant and appropriate under the circumstances 

of the release or threatened release. CERCLA §121(d)(2)(B)(i) requires that this 

determination is to be based on the designated or potential use of the water, the 

media affected, the purposes of the criteria, and current information. 

Whether a water quality criteria is relevant and appropriate depends on the 

use(s) designated by the State, which is based on existing and attainable uses, 

and whether the water quality criteria is intended to be protective of that use. 

Water quality criteria for protection of human health identify protective levels 

from two routes of exposures -- exposure from drinking the water and from 

consuming aquatic organisms, primarily fish, and from fish consumption alone. 

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Therefore, in waters designated as a public water supply, a water quality 

criteria reflecting drinking the water would be relevant and appropriate; the 

criteria that reflects fish consumption and drinking the water should be used if 

fishing is also included in the State’s designated use. If the State has 

designated a water body for recreation, a water quality criteria reflecting fish 

consumption alone may be relevant and appropriate if fishing is included in that 

designation. Generally, water quality criteria are not relevant and appropriate 

for other uses, such as industrial or agricultural use, since exposures reflected 

in the water quality criteria are not likely to occur. 

Water quality criteria without modification are not relevant and 

appropriate in selecting cleanup levels in ground water, since consumption of 

contaminated fish is not a concern. However, a water quality criteria adjusted to 

reflect only exposure from drinking the water may be useful in selecting a 

cleanup level. 

MCLs represent the level of quality EPA has determined to be safe for 

drinking and are generally relevant and appropriate for ground water that is or 

may be used for drinking and for surface water designated as a current or 

potential drinking water supply. Therefore, when a promulgated MCL exists, the 

water quality criteria for that pollutant would not be relevant and appropriate. 

A water quality criteria for protection of aquatic life may be relevant and 

appropriate for a remedy involving surface waters (or ground water discharges to 

surface waters) when the designated use requires protection of aquatic life or 

when environmental concerns exist at the site. The presence of organisms more 

sensitive than those represented in the toxicological data based from which the 

national criteria were derived, or exposure of organisms to multiple toxic 

substances with additive or synergistic toxic effects may require application of 

more stringent criteria.10 In addition, if protection of human health and aquatic 

life are both a concern, the more stringent standard or criterion should 

generally be applied. 

If a State has promulgated a numerical water quality standard for a given 

chemical and use, the State standard would generally be relevant and appropriate 

rather than a water quality criteria, because it essentially represents a sitespecific adaptation of a water quality criteria. 

If a State has not designated uses for a surface water, whether a water 

quality criteria is relevant and appropriate should be based on a site-specific 

decision about the existing and attainable uses of the water body, considering 

similar criteria used by States in designating uses and in consultation with the 

State. 

10 For example, the water quality criteria for cadmium for the protection 

of freshwater aquatic organisms may, in fact, not be stringent enough to protect 

brown and brook trout, (50 FR 30784, July 29, 1985.) 

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In addition, CERCLA §121(d)(2) requires that, in determining whether a 

water quality criteria is relevant and appropriate, the latest information 

available be considered. Thus, a water quality criteria may be relevant but not 

appropriate if its scientific basis is not current. To ensure that a water 

quality criteria is current, consult with the Regional Water Program office and 

the EPA IRIS (see Footnote 21, p. 1-76).ll 

3.2.3.3 Water Quality Standards 

In addition to technology-based limits, CWA §402(a)(1), through reference 

to CWA §301, requires that all NPDES permits include effluent limitations to 

ensure that State ambient water quality standards are met in the receiving water 

body at all times.12 Section 303 of the CWA requires States to promulgate water 

quality standards. Such ambient State standards will be applicable to CERCLA 

discharges in combination with Federal BCT/BAT requirements which regulate the 

discharge. 

State water quality standards are composed of: 

N Use Classification 

Use classifications describe the existing and attainable uses for waters 

within State boundaries. Although a State may develop its own classification 

scheme, designated uses generally include: 

Recreation; 

Protection and propagation of fish and aquatic life;

Agricultural and industrial uses;

Public water supply; and 

Navigation.

N Numerical and/or narrative standards 

For each designated use, States are required to establish numerical or 

narrative water quality standards necessary to protect the designated use; such 

standards are subject to EPA review. (The standard may be a method for 

determining numerical discharge limitations, rather than the number itself.) 

Discharges of CERCLA wastewater must comply with these promulgated standards. 

11 Exhibit 1-1 presents the Federal water quality criteria for priority 

pollutants. A summary of water quality criteria developed for protection of fish 

and other aquatic life (fresh water, marine, and estuarine) and for protection of 

human health may be found in Quality Criteria for Water 1986, EPA 440/5-86-001, 

May 1, 1986 (51 FR 43665) - commonly referred to as the “Gold Book.” 

12 CWA §401(a)(2) requires that a discharge conform to applicable water 

quality requirements where the discharge affects a State other than the State 

issuing the NPDES permit. 

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Numerical State water quality standards are usually based on Federal 

ambient water quality criteria developed by EPA, which are also considered to be 

potentially relevant and appropriate under CERCLA §121(d)(2)(A)(ii) (see section 

3.2.3.2). States may use ambient water quality criteria in setting water quality 

standards, or may set more or less stringent standards, as necessary to protect 

designated uses. 

Many State water quality standards include narrative criteria to regulate 

discharges of toxic pollutants. In general, these narrative criteria prohibit the 

discharge of toxic pollutants in toxic amounts, or set a standard at a percentage 

(often 10 percent) of the lowest concentration that will kill 50 percent of the 

aquatic organisms (LC50) in a standard test. Under the CWA, “toxic” pollutants 

are the priority pollutants (listed in Table 1 of the CWA). However, toxic 

pollutants which are referred to in State water quality standards are not limited 

to those listed in the CWA. 

EPA has issued a “Policy for the Development of Water Quality-Based Permit 

Limitations for Toxic Pollutants” (49 FR 9016, March 9, 1984). Generally, this 

policy states that toxic pollutants contained in direct discharges will be 

controlled beyond BCT/BAT equivalents in order to meet applicable water quality 

standards. The use of an integrated strategy consisting of both biological and 

chemical methods is recommended to control toxic discharges from direct sources. 

Two general approaches are used to develop water quality-based toxics 

controls: the whole-effluent approach and the chemical-specific approach. The 

whole effluent approach considers the effect on the receiving stream of all toxic 

constituents in a complex wastewater. This is tested by determining the effects 

of the effluent on standard test animals. One or a combination of the following 

procedures should be used when implementing the whole effluent approach: 

N Set discharge limitation for whole effluent toxicity 

by using methods set forth in Federal guidance for 

water quality-based toxics control.13 

N Develop whole effluent toxicity monitoring 

requirements (e.g., the requirement to submit 

appropriate bioassays to demonstrate that the 

in-stream concentration of the effluent will be less 

than the no observable effect level, or NOEL). 

N Evaluate monitoring results and then determine whether 

to develop toxicity limits where necessary in the 

absence of specific State toxicity standards. The 

13 See Technical Support Document for Water Quality-Based 

Toxics Control (September 1985); A Permit Writers Guide to Water 

Quality-Based Permitting for Toxics Pollutants (February 1987.) 

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wastewater that shows a problem must be treated in order to reduce 

the concentration of toxics in the wastewater to a level less than 

that which causes an instream effect. 

The chemical-specific approach to toxics control is used where the discharge 

constituents are well-defined. Water quality criteria or State water quality 

standards can be used to limit specific toxicants directly (i.e., the effluent 

discharge limitation will reflect numerical criteria for specific toxic pollutants). 

Federal water quality advisories may also be helpful in setting limits for specific 

chemicals. 

All CERLCA sites where technology-based controls are not adequate to achieve 

water quality standards in the receiving water body should be considered for 

water-quality based toxics controls, including numerical toxicity limits and whole 

effluent limits. The impact of CERCLA discharges could be particularly critical on 

(1) a receiving water known to exhibit severe impacts on resident biota, (2) a 

receiving water in which the designated use is not being achieved, or (3) a 

particularly valuable or sensitive receiving water (e.g., a wildlife/recreation 

area) or an area of biological importance (e.g., a fishing ground). 

It is important to note that a combination of factors must be evaluated when 

deciding if water quality-based toxics controls are necessary for a particular 

CERCLA site discharge. The presence or absence of unacceptable effluent toxicity is 

sometimes highly variable. The toxicity of an effluent (and the subsequent need for 

toxics control) is dependent on many factors including: 

" Toxicity of materials; 

" Treatment system use; 

" Treatability of chemicals in the effluent; 

" Soundness of best management practices; 

" Variability of effluent composition and concentration; 

" Capacity of treatment system; and 

" Actual retention time of the treatment system. 

Coordination with Water Program offices is strongly recommended to ensure that 

water quality-based controls, if applicable, are properly implemented to adequately 

protect the receiving waters (see section 3.2.4). Guidance for implementing 

narrative State water quality standards, including effluent 

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toxicity testing monitoring requirements, can be found in EPA guidance manuals.14 

3.2.3.4 Antidegradation Policy 

In addition to numerical and narrative State water quality standards, each 

State is required to develop and adopt a statewide antidegradation policy and 

identify the methods for implementing such a policy (40 CFR §131.12). 

The objectives of the antidegradation policy are to: 

" Protect existing uses of waters; 

" Maintain the water quality level where it exceeds that which is 

necessary to support existing uses; and 

" Protect high quality waters that constitute an outstanding national 

resource, such as waters of national significance and state parks and 

wildlife refugees. 

CERCLA discharges to high quality receiving waters could be prohibited or 

limited if protective standards have been promulgated under the antidegradation 

policy. These standards are commonly incorporated in the State's surface water 

quality protection statutes. 

3.2.3.5 Requirements Regarding Water Quality Standards Imposed by the 1987 

Amendments to the CWA 

RPMs should be alert to possible changes in water quality standards. Pursuant 

to Section 308 of the 1987 Amendments to the CWA, States must, within two years of 

enactment of the 1987 Amendments, identify those water bodies within or adjacent to 

the State that will not meet State water quality standards because of toxic 

pollutants even after the implementation of BAT, new source performance standard, 

and pretreatment standards. For each segment of water bodies identified, the State 

is to determine the specific point sources discharging toxic pollutants (and the 

amount of such discharge) that are believed to be preventing or impairing the 

desired water quality. Further, the State is required to develop an individual 

control strategy, subject to EPA approval, that will produce a reduction in the 

discharge of toxic pollutants from the identified point sources. The control 

strategy will include the establishment of effluent limitations and water quality 

standards containing numerical criteria. 

The proposed strategy, in combination with other controls on point and 

nonpoint sources, must achieve the applicable water quality standard as soon as 

14 See Footnote 13. 

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possible, but not later than 3 years after the establishment of the strategy. If the 

State fails to submit an approvable strategy, EPA, with the cooperation of the 

State, will develop a strategy meeting the requirements of the Act. The section 

provides for judicial review of individual control strategies under CWA §509. 

Further, as the State reviews, revises, or adopts water quality standards, CWA 

§304(1) requires that the State adopt criteria for all toxic pollutants listed 

pursuant to CWA §307(a) for which criteria have been published under CWA §304(a), 

the discharge or presence of which pollutant interferes with designated uses. The 

State's standards are to be based on specific numerical criteria. Where numerical 

criteria are not available, a process that results in a site-specific numerical unit 

for specific chemicals may be included in permits.15 The State may also adopt 

criteria based on biological monitoring or assessment methods. 

3.2.3.6 Ocean Discharge Standards 

CWA §403 requires that an NPDES permit for a discharge into marine waters located 

seaward of the inner boundary of the territorial seas (i.e., State and Federal 

offshore waters) be issued in accordance with guidelines for determining the 

degradation of the marine environment.16 This section provides guidance on the 

substantive permit requirements which must be not for on-site CERCLA actions when 

applicable or relevant and appropriate. The intent of CWA §403 and these guidelines, 

referred to as the Ocean Discharge Criteria (40 CFR Part 125, Subpart M), is to 

"prevent unreasonable degradation of the marine environment and to authorize 

imposition of effluent limitations, including a prohibition of discharge, if 

necessary, to ensure this goal".17 

An NPDES permit will not be issued (or an on-site discharge will not be 

allowed) unless limits can be established that will prevent unreasonable degradation 

or irreparable harm. The factors that must be evaluated in determining whether a 

discharge will degrade marine waters include the following (40 CER § 125.122): 

" Quantities, composition, and potential for 

bioaccumulation or persistence of the pollutants; 

" Potential transport of pollutants by biological, 

chemical, or physical processes; 

15 48 FR 51400, November 8, 1983. 

16 Ocean discharge criteria are implemented through the CWA §402 NPDES program 

as outlined in 40 CFR §§125.120-125.124. 

17 45 FR 65942, October 3, 1980. 

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" Composition and vulnerability of exposed communities; 

" Importance of the receiving water to spawning, migratory paths, and the 

surrounding biological community; 

" Existence of special aquatic sites; 

" Potential effect on human health; 

" Existing or potential recreational commercial fishing; 

" Applicable requirements of the Coastal Zone Management Plan;18 and 

" Marine water quality criteria developed pursuant to CWA §304(a)(1). 

If a determination of unreasonable degradation cannot be made because of a 

lack of sufficient information, EPA must then determine whether a discharge will 

cause irreparable harm to the marine environment which will not be reversed after 

cessation or modification of the discharge and whether there are reasonable 

alternatives to ocean disposal. To assess the probability of irreparable harm, EPA 

is required to make a determination that the discharger, operating under appropriate 

permit conditions, will not cause permanent and significant harm to the environment 

during a monitoring period in which additional information is gathered. If data 

gathered through monitoring indicate that continued discharge may cause unreasonable 

degradation, the discharge shall be halted or additional permit limitations 

established. 

One approach to conducting a CWA §403(c) evaluation for any discharger is to 

identify the pollutants of concern in the effluent, determine their fate in the 

environment, and assess their potential effects on marine communities, considering 

the factors listed under 40 CFR §125.122 (see above). Site-specific information is 

essential in order to identify sensitive or critical marine resources and habitats. 

In addition to the monitoring requirements under 40 CFR §125.123 (d), 

the NPDES permit for ocean discharges will also include a requirement that the 

discharge must comply with the limiting permissible concentrations (LPCs) at the 

mixing zone boundary. Under 40 CFR §227.22, LPCs are established for solid, liquid, 

and suspended particulate phases of a discharge.19 Specific information 

18 Volume 3 of this compliance manual, currently under development, will 

discuss the requirements of the Coastal Zone Management Plan. 

19 Liquid phase LPCs are based on applicable marine quality criteria or upon 

bioassay results and are set at levels that will not cause unreasonable acute or 

chronic toxicity or other sublethal adverse effects and that will not 

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may be required (40 CFR §125.124) for evaluating proposed ocean discharge to an 

ocean including: 

" Analyses of chemical constituents of the discharge and the 

potential effect on the biological community; 

" Appropriate bioassays necessary to determine LPCs; 

" Identification of critical habitats (e.g., spawning 

sites); 

" Computer modeling of the dilution and 

dispersion of the discharge plume; 

" Facility and treatment process description; and 

" Evaluations of alternative disposal options. 

3.2.3.7 Other Substantive Requirements 

In addition to the discharge limitations described above, the NPDES permit 

establishes other substantive requirements for the direct discharge of pollutants to 

surface waters that may be applicable or relevant and appropriate to circumstances 

at a site. These NPDES permit requirements are contained in 40 CFR Parts 122-125 and 

include: 

" Monitoring. As required in 40 CFR §122.44(i), continued compliance 

with applicable NPDES discharge limitations is ensured through the 

establishment of monitoring requirements for the discharger. The 

regulation requires monitoring of the mass (or other specified 

measurement) of each pollutant regulated and the volume of 

effluent discharged from each point source. Other monitoring 

requirements include designation of monitoring points, monitoring 

frequency, sample types, and analytical methods. In addition to 

monitoring for regulated pollutant parameters, monitoring may be 

required for other pollutants of concern. These additional 

monitoring requirements are developed on a case-by-case basis. 

Consistent with the suggested CERCLA/Water coordination procedures 

described in section 3.2.4 below, RPMs should provide of 

monitoring reports in a form usable by the appropriate Water 

Office for input to the Permit Compliance System (PCS). The PCS is 

a computerized system that tracks NPDES discharges and assists the 

Water Office in determining whether water quality standards are 

being maintained. 

result in accumulation of toxic materials in the human food chain. 

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" Best Management Practices. In addition to standard discharge 

limits, best management practices (BMP) provisions can be required 

on a case-by-case basis (40 CFR §125.103(b)). These requirements 

can be incorporated into the NPDES permit and/or the CERCLA site 

decision documents. BMPs are actions or procedures to prevent or 

minimize the potential for the release or discharge of toxic 

pollutants or hazardous substances in significant amounts. BMPs, 

although normally qualitative, are most effective when used in 

conjunction with numerical effluent limits. Specific goals of BMP 

provisions include ensuring that a discharger institutes good 

housekeeping practices, ensuring proper chemical storage, and 

controlling contaminated site runoff, leachate and drainage from 

material storage areas, sludge and waste disposal, and spills and 

leaks.20 

3.2.4 COORDINATION BETWEEN CERCLA (SUPERFUND) AND WATER OFFICES FOR ON-SITE 

ACTIONS 

RPMs will identify ARARs where a treatment technology is being considered 

which involves on-site direct discharges to surface waters. In order to do so 

correctly and in a timely manner, each EPA Region should establish procedures, 

protocols or memoranda of understanding that, while not recreating the 

administrative and procedural aspects of a permit, ensure early and continuous 

cooperation and coordination between the Regional Superfund and Water offices. 

Moreover, State Superfund and Water Program offices should be involved where there 

in a State-lead action or where the State has been delegated NPDES authority. 

Coordination among all appropriate offices should be established. However, the 

Regional Superfund and Water offices should maintain their involvement in all 

actions. The Water Program offices' experience in applying standards of control 

under the CWA to industrial discharges is a valuable resource for Superfund. 

The process of identifying ARARs for remedial actions essentially begins after 

the site characterization (during the remedial investigation) and may continue 

through the remedial design phase. ARARs are identified in increments of increasing 

certainty as more information regarding the site is developed. The appropriate scope 

and extent of each Region's coordination procedures for identifying, ARARs should be 

determined by the Region. It is recommended that the procedures describe the roles 

and responsibilities of the respective offices in relation to the steps in the 

Superfund selection of remedy process. The description of roles and responsibilities 

should identify those steps where coordination will occur, the level of involvement 

anticipated for each of these steps, e.g., written comments at certain stages, 

routing procedures, and agreement as to what constitutes timely notification and 

timely response between Superfund and Water offices (Regional and State). 

Coordination between the 

20 See NPDES Best Management Practices Guidance Document, EPA, (June 1981). 

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Superfund and Water offices is recommended at the following steps in the remedial 

process: 

" Preliminary Assessment/Site Investigation. If, as a result of the 

preliminary assessment or site investigation, it appears that a 

remedial action involving a discharge to surface waters may be 

considered, copies of pertinent documents should be sent to Water 

offices (Regional and State, if appropriate). Early notice of 

possible remedial actions involving discharges to surface waters will 

allow Water offices to plan their workloads accordingly. 

o Remedial Investigation/Feasibility Study. Water offices should be 

kept advised as more information regarding the site and the nature of 

the contamination is developed, e.g., types of wastes, affected 

media, expected concentrations, and potential treatment technologies. 

It may useful to obtain information from Water offices regarding 

surface water classifications, existing use designations, 

technology-based requirements, and water quality standards. In 

addition, preliminary site summaries should be shared with the Water 

office. 

Further coordination with Water offices should occur when Superfund 

offices conduct an initial screening of potential remedial 

alternatives. Water offices may provide advice during the planning of 

the detailed analysis to be conducted regarding the effectiveness and 

implementability of treatment alternatives and the environmental, 

fate and effects of the discharge. These detailed analyses should 

identify Federal and State ARARs so that each alternative can be 

evaluated. The Water office comments should address, where 

appropriate, allocation analyses, treatability studies, monitoring 

strategies, and effluent limitations and conditions. 

Examples of documents that the Superfund office may want to provide 

to the Water office are the RI/FS Workplan (draft and final), the 

RI/FS report, and the proposed plan. 

" Selection of Remedy/Record of Decision. Coordination with Water 

offices should continue through the selection of remedy stage. When 

the selected remedy involves a discharge to surface water, the Water 

offices may be able to provide information that will assist the 

Superfund office in documenting, in the Record of 

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Decision, that the selected remedy meets or exceeds ARARs (or other 

health- or risk-based levels established through a risk assessment 

when ARARs do not exist or when they are waived). 

" Remedial Design/Remedial Action. Input from Water offices may assist 

the Superfund office in ensuring that the selected remedy is designed 

to attain and succeeds in attaining or exceeding all ARARs. 

General program coordination outside of specific Superfund projects can also 

be enhanced by the exchange of effluent guidelines development documents, which are 

the detailed technical bases for the categorical standards (see Exhibit 3-1, p. 

3-36), waste treatment literature, revised water quality standards and other 

documents which are necessary to identify and comply with ARARs. 

3.2.5 ADMINISTRATIVE REQUIREMENTS OF THE NPDES PROGRAM 

The NPDES program establishes administrative requirements that must be 

complied with prior to and after permit issuance. These requirements would not be 

considered ARARs for on-site direct discharges to surface waters because they are 

administrative in nature. However, they would be requirements to be complied with in 

the NPDES permitting process for off-site direct discharges to surface waters.21 

These NPDES administrative requirements include: 

" Certification: CWA §401 requires that any applicant for a Federal 

license or permit to conduct an operation that may result in any 

discharge to navigable waters, shall provide to the 

licensing/permitting agency a certification from the State that the 

discharge will comply with applicable provisions of CWA §§301, 302, 

303, 306, and 307. 

" Permit Application Requirements: A discharge from a CERCLA site is 

considered a "new discharge" for regulatory purposes under the NPDES 

program. NPDES regulations (40 CER §122.29) require that applications 

for permits for new-discharges must be made 180 days before 

discharges actually begin. The information required in a permit 

application will be collected during the RI/FS. States with NPDES 

authority may have slightly different permit application requirements 

for now discharges. The NPDES regulations require that pollution 

control equipment must be installed before the new discharge 

21 The lead agency (or the PRP in the case of enforcement-lead sites) will 

obtain the NPDES permit from either the State or Federal agency, whichever is 

authorized to implement the NPDES program. 

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begins, and compliance must be achieved within the shortest feasible 

time, not to exceed 90 days. 

" Reporting Requirements. The NPDES permit program requires 

dischargers to maintain records and to report periodically on the 

amount and nature of pollutants in the wastewaters discharged (40 CFR 

§§122.44(i) and l22.48). Reports that are typically required include 

emergency reports (required in cases of noncompliance that are 

serious in nature) and discharge monitoring reports (routine 

monitoring reports). 

" Public Participation. CERCLA RPMs should also be aware that any NPDES 

discharge limitations and requirements developed for a CERCLA site 

are subject to public participation requirements in 40 CFR §124.10, 

including public notice and public comment. 

3.3 GUIDANCE FOR COMPLIANCE WITH INDIRECT DISCHARGE REQUIREMENTS 

In general, a discharge to a POTW is considered an off-site activity.22 

Therefore, Superfund is required to comply with substantive and procedural 

requirements of the national pretreatment program and all local pretreatment 

regulations before discharging wastewater to a POTW. 

3.3.1 PRETREATMENT STANDARDS 

The national pretreatment program, authorized under CWA §307(b), controls the 

indirect discharge of pollutants to POTWs. The goal of the pretreatment program is to 

protect municipal wastewater treatment plants and the environment from damage that 

may occur when hazardous, toxic, or other nondomestic wastes are discharged into a 

sewer system.23 This objective is achieved through pretreatment of wastewaters 

discharged by industrial and other nondomestic users (e.g., a CERCLA site) into 

POTWs. 

The general pretreatment regulations, located in 40 CFR Part 403, are intended 

to control the introduction of pollutants into POTWs so as to: 

22 Even if CERCLA wastewater is discharged to a sewer located on-site, 

treatment by a POTW located off-site is considered an off-site activity. 

23 The potential problems to a POTW caused by inadequately treated 

discharges are diverse and include damages to the POTW’s physical facilities, 

threats to the health and safety of POTW workers, inhibition of POTW treatment 

processes, the discharge of toxic and other pollutants to the waters of the U.S., 

contamination of the POTW’s sludge, and emission of volatile pollutants from the 

POTW's sewer and treatment systems into the air. 

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" Prevent interference with the operation of a POTW; 

" Prevent pass through of pollutants through the treatment works; and 

" Improve opportunities to recycle and reclaim municipal and industrial 

wastewater and sludges. 

Interference is a discharge that, alone or in conjunction with discharges from 

other sources, inhibits or disrupts a POTW, its treatment processes or operations, 

or its sludge processes, thereby causing either a violation of any requirement of 

the POTW's NPDES permit or prevention of sewage sludge use or disposal.24 

Pass through is a discharge to a POTW that exits the POTW in quantities or 

concentrations, which alone or in conjunction with a discharge(s) from other 

sources, causes a violation of any requirement of the POTW's NPDES permit. 

EPA's regulations at 40 CFR §403.5 include general and specific prohibitions 

on discharges to POTWs. The general prohibitions state that pollutants introduced 

into POTWs by a non-domestic source shall not cause pass through or interference. 

The specific prohibitions preclude the introduction of pollutants that: 

" Create a fire or explosion hazard in the sewers or treatment works; 

" Will cause corrosive structural damage to the POTW (pollutants with a 

pH lower than 5.0); 

" Obstruct flow in the sewer system resulting in interference; 

" Are discharged at a flow rate and/or concentration that will result 

in interference; and 

" Increase the temperature of wastewater entering the treatment plant 

so as to inhibit biological activity resulting in interference (in no 

case shall the temperature of the POTW increase to above 104"F 

(40"C)). 

Nondomestic users must comply with the general and specific prohibitions. In 

addition, pursuant to 40 CFR §403.5(c), some POTWs are required to develop and 

enforce specific effluent limitations (i.e., local limits) to implement the 

24 Most POTWs are considered direct dischargers and are issued NPDES permits 

controlling the discharge of their wastewater to receiving waters. 

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general and specific prohibitions. In addition, the POTW may enforce local 

prohibitions on wastes with objectionable color, noxious or malodorous liquids, 

wastes that may volatilize in the POTW (endangering the health and safety of POTW 

workers), radioactive wastes, and other types of wastes that are incompatible with 

POTW operations. 

The 1987 amendments to the CWA require States to review their water quality 

standards and, if necessary, develop toxic discharge control programs (see section 

3.2.3.5). The amendments also require an increased EPA effort to develop regulations 

for sludge use and disposal. Both of these efforts may affect discharge limitations 

under NPDES permits, including POTWs’ permits. Revisions to a POTW's NPDES permit 

may affect existing pretreatment standards. In general, RPMs should maintain 

awareness of the possibility of such changes. 

The national pretreatment standards also specify quantities or concentrations 

of pollutants or pollutant properties that may be discharged to a POTW by existing 

or new industrial users in specific industrial subcategories. These categorical 

standards are not applicable requirements because CERCLA cleanup actions do not 

presently fit within any industrial category for which such standards exist. However 

ever, they may be relevant and appropriate if the considerations underlying the 

categorical standard (e.g., type and concentration of pollutant, type of industrial 

process that produced the waste) are sufficiently similar to the conditions of the 

hazardous substance found at the site. See Exhibit 3-1, p. 3-36 for a listing of 

development documents that provide the technical basis for the categorical 

standards. 

3.3.2 GUIDANCE FOR DETERMINING WHETHER TO DISCHARGE CERCLA WASTEWATER TO A 

POTW 

A discharge to a POTW must not occur if it will cause pass through, 

interference, violations of the specific prohibitions, or violations of the local 

limits or ordinance. POTWs under consideration as potential receptors of CERCLA 

wastewaters may include those POTWs either with or without an EPA-approved 

pretreatment program. POTWs with an approved pretreatment program are required to 

have the mechanisms necessary to ensure compliance by nondomestic users with 

applicable pretreatment standards and requirements.25 These POTWs are also required 

to have the legal authority to deny or condition discharges that do not meet 

pretreatment standards and requirements. POTWs 

25 POTWs with EPA-approved pretreatment programs must, among other things, 

establish procedures to notify nondomestic users of applicable pretreatment 

standards and requirements, receive and analyze self-monitoring reports from IUs, 

sample and analyze industrial effluents, require compliance, conduct inspections, 

investigate noncompliance, assess penalties, and comply with public participation 

requirements. A NPDES State may apply for approval of a State, pretreatment program 

pursuant to 40 CFR §403.10(f). A State with an approved pretreatment program may 

assume responsibility for implementing a POTW pretreatment program in lieu of 

requiring the POTW to develop a pretreatment program. 

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without an approved pretreatment program must be evaluated to determine whether 

sufficient mechanisms (i.e., enforceable local limits) exist to allow the POTW to 

meet the requirements of the national pretreatment program in accepting CERCLA 

wastewaters. Pass through, interference and violations of the specific prohibitions 

are always prohibited regardless of whether a POTW has an approved pretreatment program. 

The determination of a POTW's ability to accept CERCLA wastewater should be 

made during the remedial alternatives analysis under the Remedial Investigation 

Feasibility Study (RI/FS) process. Water Division officials and their State 

counterparts and representatives of the POTW should participate in the evaluation of 

any remedial alternatives recommending the use of a POTW. The following factors 

should be evaluated during the remedial alternatives analysis: 

" The quantity and quality of the CERCLA wastewater and its 

compatibility with the POTW. The constituents in the CERCLA 

wastewater must not violate the specific prohibitions, cause pass 

through or interference, including unacceptable sludge contamination, 

or cause a hazard to employees at the POTW. In some cases, control 

equipment at the CERCLA site may be necessary in order to pretreat 

the CERCLA discharge prior to discharge to the POTW.26 

" If an indirect discharge to a POTW is being considered as an 

alternative, RPMs should provide information, such as a description 

of the contents and concentrations in the wastewater, in order for 

the POTW to evaluate the impacts of a discharge on its treatment 

system and on its continued compliance with its NPDES permit. The 

RPM, working with the POTW, must perform the necessary analysis 

(e.g., pilot tests) to determine whether the CERCLA discharge is 

likely to cause interference or pass through at the POTW or to 

violate the specific prohibitions. 

" The POTW's record of compliance with its NPDES permit and 

pretreatment program requirements to determine if the POTW is a 

suitable disposal site for the CERCLA wastewater. Section 121(d)(3) 

of CERCLA prohibits the 

26 EPA's Office of Water is developing guidance manuals to assist in 

assessments regarding the compatibility of CERCLA wastewater with a POTW and the 

requirements necessary for CERCLA wastewater to comply with pretreatment standards. 

See also Guidance for POTW Pretreatment Program Development, October, 1983 (includes 

discussion on developing local limits). 

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discharge of CERCLA wastes to facilities that are not in 

compliance with applicable Federal law.27 

" The potential for volatilization of the wastewater 

constituents at the CERCLA site, while moving through the 

sewer system, or at the POTW and its impact upon air quality. 

" The potential for ground-water contamination from transport 

of CERCLA wastewater or impoundment at the POTW, and the need 

for ground-water monitoring. 

" The potential effect of the CERCLA wastewaters upon the 

POTW’s discharge as evaluated by maintenance of water quality 

standards in the POTW's receiving waters, including State 

narrative standard of “no toxic materials in toxic amounts.” 

" The POTW's knowledge of and compliance with any applicable 

requirements or requirements of other environmental statutes. 

RCRA permit-by-rule requirements may be triggered if the POTW 

receives CERCLA wastewaters that are classified as "hazardous 

wastes" without prior mixing with domestic sewage, i.e., 

direct delivery to the POTW by truck, rail, or dedicated 

pipe.28 Not all CERCLA wastewaters are considered hazardous 

wastes under RCRA (listed or characteristic); determinations 

must be made on a case-by-case basis. 

if the POTW is operating under an NPDES permit issued 

before November 8, 1984, the date of enactment of the 

Hazardous and Solid Waste Amendments (HSWA), which 

amended RCRA, the following permit-by-rule requirements 

under 40 CFR §270.60(c) apply:(1)the POTW must have 

an NPDES 

27 If a POTW is operating under an expired permit, the conditions of the 

permit normally continue in force until the effective date of a new permit. Most NPDES 

permits provide for such extensions, unless this would violate State law. Thus, a 

CERCLA site could discharge to a POTW that has an expired permit, if the POTW has 

received an extension permissable under State law and is in compliance with the 

extended permit. 

28 The domestic sewage exclusion (DSE) under RCRA Subtitle C provides that 

nondomestic wastes are not considered hazardous wastes when they are discharged to 

sewers containing domestic sewage that is treated at a POTW. The POTW that accepts 

such wastes is not deemed to have received hazardous wastes and, therefore, is not 

subject to RCRA permit requirements. 

* * * AUGUST 8, 1988 DRAFT * * * 

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permit; (2) the POTW must be in compliance with its NPDES 

permit; (3) the POTW must comply with RCRA regulations 

regarding requesting an identification number, using a manifest 

system, identifying manifest discrepancies, and complying with 

reporting requirements; and (4) the waste received meets all 

Federal, State, and local pretreatment requirements that would 

be applicable to the waste if it were discharged through a 

sewer, pipe, or similar conveyance (i.e., the same pretreatment 

standards as if the domestic sewage exclusion applied). 

If the POTW is operating under an NPDES permit issued after 

November 8, 1984, including renewed permits, the POTW must 

comply with the same permit-by-rule requirements plus 

corrective action requirements under 40 CFR §264.101 before 

accepting a discharge of hazardous wastes.29 

" The various costs of managing CERCLA wastewater, including 

all risks, liabilities, permit fees, etc.30 It may be appropriate 

to reflect these costs in the POTW's connection fees and user 

charge system. 

Based upon consideration of the above elements, the discharge of CERCLA 

wastewater to a POTW should be deemed inappropriate if the evaluation indicates that: 

" The constituents in the CERCLA discharge are not compatible 

with the POTW and will cause pass through, interference, 

violations of the specific prohibitions, toxic pollutants in 

toxic amounts in the POTW's receiving waters, violations of 

water quality standards, unacceptable sludge contamination, or 

a hazard to employees of the POTW. 

" The impact associated with transporting the waste to and/or 

discharging of CERCLA wastewater into a POTW 

29 A RCRA rider permit incorporating the permit-by-rule requirements, 

including corrective action, will be issued in conjunction with renewal of the 

POTW’s NPDES permit after November 8, 1984. 

30 SARA §119(c)(5)(D) specifically prohibits EPA from indemnifying an owner or 

operator of a facility regulated under the Solid Waste Disposal Act, therefore, 

POTWs subject to permit-by-rule provisions cannot be indemnified. EPA has 

extended this prohibition of indemnification to any POTW. (For more information, 

see OSWER Directive 9835.5.) 

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would result in unacceptable impacts upon any environmental 

media. 

" The POTW is determined to be an unacceptable receptor of CERCLA 

wastewaters based upon a review of the POTW's compliance 

history. 

If consideration of the various element indicates that the discharge 

of CERCLA wastewater to a POTW is deemed appropriate: 

" There should be early public involvement, including contact with 

POTW officials and users, in accordance with the CERCLA community 

relations plan and public participation requirements; 

" Federal, State and local pretreatment requirements on the CERCLA 

discharge must be determined; 

" All other requirements on the CECLA discharge must be identified, 

e.g., manifesting requirements under RCRA if CERCLA wastewaters 

that are classified as hazardous wastes under RCRA are discharged 

directly to the POTW without prior mixing with domestic sewage, 

i.e., by truck, rail, or dedicated pipe; and 

" The POTW’s NPDES permit and fact sheet may need to be modified to 

reflect the conditions of acceptance of CERCLA wastewaters. Permit 

modification may be necessitated by the need to pretreatment 

requirements, local limits, monitoring requirements, and/or 

limitations on additional pollutants of concern in the POTW's 

discharge. 

3.3.3 POTW CONTROL MECHANISMS 

40 CFR §403.8(f)(iii) of the general pretreatment regulations require the use 

of control mechanisms (e.g., permit or order) to regulate indirect discharges to a 

POTW. Those control mechanisms contain applicable pretreatment standards including 

local discharge prohibitions and numerical discharge limits. 

The control mechanisms, in addition to incorporating pretreatment limitations 

and requirements, may also include the following: 

" Monitoring and reporting requirements to ensure continued 

compliance with applicable pretreatment standards. Monitoring and 

reporting frequencies vary among POTWs. However, frequencies are 

typically based upon factors such as facility flow, types of 

pollutants, expected, and process variability. 

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" Spill prevention programs to prevent the accidental discharge of 

pollutants to POTWs. The required components of a spill prevention 

program vary among POTWs. At a minimum, however, most POTWs 

require notification for spill events that could have an impact on 

their treatment system. 

3.4 COMPLIANCE WITH DREDGE AND FILL REQUIREMENTS 

3.4.1 DREDGE AND FILL ACTIVITIES 

CERCLA activities that may be considered dredge and fill activities include, 

but are not limited to the following: 

" Dredging of contaminated lake, river, or marine sediments; 

" Disposal of contaminated soil, waste material, well-drilling 

materials, or dredged material in surface water, including most 

wetlands; 

" Capping of the site; 

" Construction of berms and levees to contain wastes; 

" Stream channelization; 

" Excavation to contain effluent; and 

" Dewatering of the site. 

3.4.2 AUTHORITIES FOR REGULATING DREDGE AND FILL ACTIVITIES 

Dredge and fill activities are regulated under the following 

authorities: 

" Section 10 of the Rivers and Harbors Act prohibits the 

unauthorized obstruction or alteration of any navigable 

water of the United States. Navigable waters of the U.S. are 

defined an waters that are subject to the ebb and flow of 

the tide shoreward to the mean high water mark and/or are 

presently used, or have been used in the past or may be 

susceptible to use to transport interstate or foreign 

commerce. Structures or work in, above, or under navigable 

waters are regulated under Section 10. Examples of 

activities include dredging, filling, installation of 

pilings, and construction of structures such as berms, 

levees, coffer dams, and piers. 

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" Section 404 of the Clean Water regulates the discharge of 

dredged or fill material to waters of the United States. 

Federal jurisdiction under Section 404, the is, waters of 

the U.S., is broader than that under Section 10 of the 

Rivers and Harbors Act and includes all waters of U.S. 

including wetlands, the use of which could affect interstate 

commerce. Examples of the discharge of dredged or fill 

material regulated by Section 404 include (a) disposal of 

dredged material in wetlands, (b) capping and (c) construction 

of berms and levees. It is important to note that while 

the act of excavation and/or dredging is not regulated under 

Section 404, the deposition of dredged or excavated 

materials in waters of the U.S. is a regulated activity 

under Section 404. 

" Section 103 of the Marine Protection Research and 

Sanctuaries Act (MPRSA) regulates ocean discharges of 

materials dredged from waters of the U.S. Jurisdictional 

limits under Section 103 extend seaward from the low tide 

line (baseline of the territorial sea) where a shore 

directly contacts the open sea. Section 103 requires that 

permits be issued for the transport of that dredged material 

for the purposes of dumping it into ocean waters. MPRSA 

§103(b) requires that ocean dumping of dredged material be 

at sites designated by EPA under MPRSA §102(c). 

" 40 CFR Part 6, Appendix A contains EPA's regulations for 

implementing Executive Order 11990, Protection of Wetlands, 

and Executive Order 11988, Floodplain Management, which 

require Federal agencies, wherever possible, to avoid or 

minimize adverse impacts of Federal actions upon wetlands 

and floodplains, and to preserve and enhance the natural 

values of wetlands and floodplains. Federal actions include 

dredge and fill activities. 

3,4.3 THE ARMY CORPS OF ENGINEERS/EPA PERMIT PROGRAM 

The Army Corps of Engineers (the Corps) evaluates applications for permits for 

activities regulated under Section 10 of the Rivers and Harbors Act and Section 404 

of the CWA.31 Protection of wetlands and other aquatic habitats is one of the 

primary goals of the dredge and fill permit program. The Corps 

31 A State agency may also be authorized to issue CWA §404 permits in lieu of 

the Corps or certain “State regulated waters." See 40 CFR Part 233. 

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issues or denies permit applications on the basis of compliance with relevant 

portions of the CWA §404(b)(1) guidelines and impact on the public interest (see 

next section). EPA also reviews Section 404 permit applications for compliance with 

the Guidelines as well as other CWA provisions. 

Under CERCLA §121(e), CWA §404 permits are not required for dredge and fill 

activities conducted entirely on-site. However, the Corps expertise in assessing the 

public interest factors for dredging and filling operations can contribute to the 

overall quality of the CERCLA response action. 

MPRSA §103(c) requires the Corps of Engineers to notify EPA of its intention 

to issue Section 103 permits for ocean dumping of dredged materials. EPA reviews 

Section 103 permits for compliance with environmental criteria promulgated by EPA 

under Section 102(a) of MPRSA. The Corps cannot issue Section 103 permits that do 

not comply with Section 102(a) criteria unless EPA grants a waiver to do so. 

3.4.4 SUBSTANTIVE REQUIREMENTS 

3.4.4. Dredged and Fill Material Disposal under CWA Section 404 and 

Rivers and Harbors Act Section 1032 

Superfund's determination whether to discharge dredged or fill material in 

waters of the United States should be based primarily on application of the CWA 

§404(b)(1) guidelines, promulgated as regulations in 40 CFR §230.10. A guiding 

principle of Part 230 is that degradation or destruction of wetlands and other 

special aquatic sites should be avoided to the extent possible. Under the CWA 

§404(b)(1) guidelines, no discharge of dredged or fill material shall be permitted 

if there is a practicable alternative to the proposed discharge that would have less 

adverse impact on the aquatic ecosystem, so long as the alternative does not have 

other significant adverse environmental consequences (40 CFR §230.10(a)). 

Pursuant to 40 CFR §230.10(b), no discharge of dredged or fill material shall 

be allowed if the discharge: 

" Causes or contributes to violations of any additional State water 

quality standard; 

" Violates any applicable toxic effluent standard or discharge prohibition 

under CWA §307; 

32 Among the factors to-be-considered in determining disposal requirements for 

dredged materials in the Great Lakes Basin under Section 404 of the Clean Water Act 

are EPA Guidelines for the Pollutional Classifications of Great Lakes Harbor 

Sediments and International Joint Commission Average Concentrations. 

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" Jeopardizes endangered or threatened species specified under the 

Endangered Species Act of 1973 (See Volume 3 of compliance manual); or 

" Violates requirements to protect any marine protection sanctuary 

designated under Title III of the Marine Protection, Research, and 

Sanctuaries Act of 1972. 

The guidelines also provide that no discharge of dredged or fill material 

shall be permitted which will cause or contribute to significant degradation of the 

waters of the United States (40 CFR §230.10(c)). Where a discharge would 

significantly degrade the waters of the United States, and there are no practicable 

alternatives to the discharge, such degradation can often be avoided or reduced and 

compliance with the guidelines achieved through the use of appropriate and 

practicable mitigation measures to minimize potential adverse impacts of the 

discharge on the aquatic ecosystem (40 CFR §230.10(d)). The term "practicable" is 

defined in 40 CFR §230.3(q) to mean available and capable of being done after taking 

into consideration cost, existing technology, and logistics in light of overall 

project purpose.” 

Determinations of Potential Effects of Discharge 

Prior to selecting a remedy which involves the discharge of dredged or fill 

material, RPMs, working with the Regional 404/Wetlands Office, must consider the 

availability of practicable alternatives to discharges in wetlands and other special 

aquatic sites. If no practicable alternative exists, the potential short-term or 

long-term effects of the proposed discharge of dredged or fill material on the 

physical, chemical, and biological components of wetlands and the associated aquatic 

environment should be determined. 40 CFR §230.11 describes the types of effects of a 

proposed discharge that must be evaluated and considered in order to mitigate 

impacts, including: 

" Physical substrate determinations; 

" Water circulation, fluctuation, an salinity 

determinations: 

" Suspended particulate/turbidity determinations 

" Contaminant determinations; 

" Aquatic ecosystem and organism determinations; 

" Proposed disposal site determinations; 

" Determination of cumulative effects on the aquatic 

ecosystem; and 

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" Determination of secondary effects on the aquatic 

ecosystem (see 40 CFR §§230.11 through 230.54). 

Minimizing Adverse Impacts 

Examples of specific steps that may be taken to comply with the requirement to 

minimize adverse impacts (40 CFR §230.10(d)) are set forth in considerable detail in 

40 CFR Part 230, Subpart H, entitled "Actions to Minimize Adverse Effect." The most 

preferred type of mitigation is to avoid impacts entirely. In some cases, avoidance 

is not possible. In such cases, the goal of mitigation for unavoidable impacts is to 

minimize adverse effects. This may include project modifications such as 

modification of the choice of disposal site, treatment of material to be disposed, 

providing for control of the material after discharge, or, when necessary and 

practicable, wetland enhancement, wetland restoration, and in certain instances, 

wetland creation (40 CFR §230.75(d), where demonstrated effective techniques are 

available. Small scale use of such techniques should be used where proposed 

development and restoration techniques have not yet advanced to the pilot 

demonstration stage. What, constitutes necessary mitigation at a particular site is 

a case-specific determination depending on such factors as the type of activity, the 

type of wetland, how well the wetland is presently functioning, etc., always keeping 

in mind the goal of preserving wetland values at the site. 

ARAR Determination 

Section 404 applies to the discharger of dredged and fill materials and 

addresses the impacts caused by such discharges. In some CERCLA response actions, 

the wetland will already be severely degraded by virtue of prior discharges 

of waste. While part of the CERCLA remedy may be to fill in the wetland, 

the remedy would contemplate that the fill will serve an environmental benefit. 

Where the functioning of the wetland has already been significantly and irreparably 

degraded, mitigation would be oriented towards minimizing further adverse 

environmental impacts, rather than attempting to recreate the wetland's original 

value on-site or off-site. That is, there would be discretion, but no obligation 

under CWA §404 for the lead agency to mitigate those impacts that preceded the 

remedial fill operation. While CWA §404 is not an applicable requirement in such 

cases, mitigation, including wetland restoration and creation, may nonetheless be 

appropriate in some circumstances to protect the environmental values of the site. 

Moreover, other provisions, most notably 40 CFR Part 6, Appendix A, implementing 

Executive Orders 11988 and 11990 (see section 3.4.4.3 below), may require such 

mitigation. In addition, independent enforcement authorities under the Clean Water 

Act (§§309 and 404) may be used to require private parties responsible for the 

original discharge (e.g., the contamination) to conduct appropriate mitigation 

activities. 

In contrast, there will be other situations where the response action itself 

involves a discharge that may destroy an undegraded, functioning wetland. Examples 

includes the diversion of surface or ground water through an existing 

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wetland, and building access roads in wetlands. Such activities should be avoided to 

the extent practicable. For impacts that cannot be avoided or minimized as described 

above, enhancement, restoration, or creation of another wetland, as provided in the 

CWA §404(b)(1) guidelines, may be applicable or relevant and appropriate to 

Superfund actions. 

A discharge must comply with the CWA §404(b)(1) guidelines. If the discharge 

complies with the guidelines, RPMs shall then consider whether the discharge would 

be in the public interest. This includes evaluation of the probable impacts, 

including cumulative impacts, of the proposed activity on the public interest. This 

evaluation requires a careful weighing of all those factors that become relevant in 

each particular case.33 The public interest review factors may not be used to offset 

noncompliance with the guidelines. While a discharge that meets the guidelines may 

not be permitted if it is concluded that permit issuance is not in the public 

interest, the regulations do not allow a determination that it is in the public 

interest to issue a permit that does not comply with the guidelines. 

In selecting remedies, the RPMs should also consult with the State(s) in which 

the waters of the United States to be filled are located. Under CWA §401 no permit 

may be used until the State concurs or waives concurrence. Certification primarily 

focuses on whether the State believes its water quality standards will be violated 

if the discharge occurs; the State, for example, may condition its concurrence on 

the inclusion of additional requirements necessary to satisfy State law. More 

specific guidance appears in CWA §401(a) and (d) and 40 CFR Part 121. 

Since no permit is required in the case of on-site actions, State 

certification is not legally required. However, consultation with the State should 

occur in general as part of State identification of substantive State ARARS. If a 

State determines the discharge would violate the requirements of CWA §401(a)(1), a 

discharge of dredged or fill material does not comply with the CWA §404(b)(1) 

guidelines (40 CFR 230.10). In such circumstances, the discharge will occur only in 

accordance with CERCLA waiver criteria for ARARs. In addition, the State will have 

the opportunity to review and concur with the remedy selected in the Record of 

Decision. 

33 33 CFR §325.3(c) sets forth the following factors that the Corps should 

evaluate when conducting a public interest analysis: conservation, economics, 

aesthetics, general environmental concerns, wetlands, historic properties, fish and 

wildlife values, flood hazards, land use, navigation, shoreline erosion and 

accretion, recreation, water supply and conservation, water quality, energy needs, 

safety, food and fiber production, mineral needs, considerations of property 

ownership and, in general, the needs and welfare of the people. 

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3.4.4.2 Dredged Material Disposal under Section 103, MPRSA 

Consistent with EPA's regulations under 40 CFR §225.2, Superfund's decision to 

ocean dispose (seaward of the territorial sea baseline) of dredged material 

(generally an off-site activity) needs to consider the following requirements: 

" Disposal must be at a site designated by EPA for such 

use unless disposal at an available, designated site 

is not feasible; 

" Requests for disposal at a nondesignated site must be 

accompanied by a statement of the basis for the 

determination that disposal at a designated site is 

not feasible. 

Requests for ocean disposal of dredged materials under Section 103 of MPRSA must 

include the following information: 

" Historical uses of the proposed disposal site; 

" Documented effects of other current or historical disposal 

activities, if any, in the area of the proposed dredged material 

site; 

" Estimated length of time for the proposed dredged 

material disposal; 

" Characteristics , quantities, and composition of the 

dredged material; and 

" A description of the proposed disposal site characteristics (if it is 

not a designated site) necessary for designation under 40 CFR Part 

228. 

Requests for ocean disposal of dredged material will be reviewed by the Corps of 

Engineers (the permit issuing agency) for compliance with EPA's criteria under 40 

CFR Part 227, including the following: 

" Environmental impact criteria; 

" Determination of the need for ocean disposal of 

dredged materials, including the evaluation of other 

available disposal alternatives; 

" Impact on aesthetic, recreational, and economic 

values; 

" Impact on other uses of the ocean. 

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3.4.4.3 Dredged and Fill Material Disposal Under 40 CFR Part 6. Appendix A 

40 CFR Part 6, Appendix A, which describes EPA's policy on implementing 

Executive Orders 11988 (Floodplain Management) and 11990 (Wetlands Protection), 

may be applicable or relevant and appropriate for CERCLA activities.34 The 

procedures substantively require that EPA conduct its activities to avoid, to the 

extent possible, the long- and short-term adverse impacts associated with the 

destruction or modification of wetlands and the occupation or modification of 

floodplains. The procedures also require EPA to avoid direct or indirect support of 

new construction in wetlands or floodplain development wherever there are 

practicable alternatives and to minimize potential harm to floodplains or wetlands 

when there are no practicable alternatives. 

3.4.5 COORDINATION BETWEEN SUPERFUND AND THE 404/WETLANDS PROTECTION PROGRAM 

OFFICES OR OCEAN DISPOSAL PROGRAM 

RPMs should early and continuously involve the affected Regional 404/Wetlands 

Protection office or Ocean Disposal Program where discharge of dredged or fill 

material is being considered as a component of a remedy (see section 3.2.4 generally 

describing coordination procedures), or if the CERCLA action has the potential to 

affect wetlands.35 If additional expertise is required and can be obtained within 

time constraints of the response action, the 404 office or Ocean Disposal Program, 

acting as a liaison and working closely with the lead agency Remedial Project 

Manager, should consult with other agencies with expertise in dredge and fill-type 

determinations: the Corps of Engineers (general expertise in conducting public 

interest and Section 404(b)(1) guidelines analyses and in identifying wetland 

resources), the Fish and Wildlife Service (identifying endangered species, 

evaluating impacts to the Fish and Wildlife community), the National Marine 

Fisheries Service (evaluating impacts to commercial and sport fisheries), the 

National Oceanic and Atmospheric Administration, and appropriate State agencies. 

Advice from the 404/Wetlands Office or Ocean Disposal Program and these other 

agencies may assist the lead agency responsible for CERCLA site cleanup in 

evaluating the possible impact of proposed actions on the aquatic environment, and 

in selecting the best overall remedy through a careful weighing of all relevant 

factors. These offices may also advise RPMs on how to minimize and mitigate adverse 

environmental impacts. 

34 40 CFR Part 6, Subpart A sets forth EPA policy for carrying out the 

provisions of Executive Orders 11988 (floodplains Management) and 11990 (Protection 

of Wetlands). 

35 In Regions 3, 6 and 7, the 404/Wetlands Protection Program Offices are not 

located in the Water Office. In Regions 3 and 6, the wetlands program is located in 

the Environmental Services Division and in Region 7 is located under the Assistant 

Regional Administrator for Policy and Management. 

* * * AUGUST 8, 1988 DRAFT * * * 

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EXHIBIT 3-1 

CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS 1/ 

INDUSTRIAL 

POINT SOURCE 

CATEGORY 

ALCOHOL FOR 

FUEL (SYNFUELS) 

ALUMINUM FORMING 

ASBESTOS 

MANUFACTURING 

40 CFR 

PART NUMBER SUBCATEGORY 

472 S Multimedia 

Technical 

Support 

Document for 

Ethenol and 

Fuel Industry 

S Low BTU 

Gasifier 

Wastewater 

(1986) 

S Ethenol-forfuel (Guidance) 

S Low BTU Coal 

Gasification 

(Guidance) 

467 S Aluminum 

Forming 

Volumes I & II 

(Final) 

427 S Building, 

Construction 

and Paper 

(Final) 

S Textile, 

Friction 

Materials and 

Sealing 

(Final) 

SOURCES OF AVAILABILITY 

GPO 

EPA PUBLICATION NTIS ACCESSION STOCK 

DOCUMENT NUMBER NUMBER NUMBER EPA 

EPA 440/1-86-093 PB86/177557/AS 

PB86/245438/AS 

EPA 440/1-86/-093 X 

EPA 440/1-86/093 X 

EPA 440/1-84/073

Vol. I PB84-244425

Vol. II PB84-244433 X

EPA 4401/1-74/017-a PB238320/6 5501-00827 

EPA 440/1-74/035-a PB240860/7 

1/ The development documents provide a detailed technical basis for the categorical effluent limitations (direct and indirect charges) promulgated for each 

industrial category. The documents may be useful in determining BAT/BCT technology to discharges from CERCLA sites, but are not in themselves ARARs. 

* * * AUGUST 8, 1988 DRAFT * * *

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3-37 

EXHIBIT 3-1 (Continued)

CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS 1/

SOURCES OF AVAILABILITY 

INDUSTRIAL GPO 

POINT SOURCE 40 CFR EPA PUBLICATION NTIS ACCESSION STOCK 

CATEGORY PART NUMBER SUBCATEGORY DOCUMENT NUMBER NUMBER NUMBER EPA 

BATTERY 461 S Battery EPA 440/1-82/067-b PB83-197921 --------------- X 

MANUFACTURING Manufacturing 

(Proposed) X 

S Errata Sheet 

S Battery EPA 440/1-84-067 

Manufacturing Vol. I PB85-121507 =-------------- X 

(Final) Vol. II PB85-121515 --------------- X 

BUILDERS PAPER 431 S Builders Paper EPA 440/1-74-026-a PB238076/4 5501-00909 X 

AND BOARD MILLS & Roofing 

Also part 430 

S Board & EPA 440/1-80/025-b PB81-201535 ---------------

Builders Paper 

and Board Mills 

(Proposed) 

S Pulp, Paper and EPA 4401/1-82/025 PB83-163949 ---------------

Paperboard and 

Builders’ Paper 

& Board Mills 

(Final) 

CANNED & 407 S Citrus, Apple & EPA 440/1-74/027-a PB238649/8 5501-00790 X 

PRESERVED FRUITS Potatoes 

& VEGETABLES 

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EXHIBIT 3-1 (Continued)

CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS 1/

SOURCES OF AVAILABILITY 

INDUSTRIAL GPO 

POINT SOURCE 40 CFR EPA PUBLICATION NTIS ACCESSION STOCK 

CATEGORY PART NUMBER SUBCATEGORY DOCUMENT NUMBER NUMBER NUMBER EPA 

CANNED AND 408 S Catfish, Crab, EPA 440/1-74/020-a PB230614/2 5501-00920 

PRESERVED Shrimp 

SEAFOOD 

PROCESSING 

S Fishmeal, EPA 440/1-75/041-a PB256840/0 --------------- X 

Salmon, Bottom 

Fish, Sardine, 

Herring, Clam, 

Oyster, 

Scallop, 

Abalone (Final) 

S Report to EPA 440/1-80/020 PB81-182354 ---------------

Congress, 

Section 74 

Seafood 

Processing 

Executive 

Summary - (Vol. 

I-III) 

CEMENT 411 S Cement EPA 440/1-74/005-a PB238610/0 5501-00866 

MANUFACTURING Manufacturing 

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3-39 

EXHIBIT 3-1 (Continued)

CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS 1/

INDUSTRIAL

POINT SOURCE 40 CFR

CATEGORY PART NUMBER SUBCATEGORY

SOURCES OF AVAILABILITY 

GPO 

EPA PUBLICATION NTIS ACCESSION STOCK 

DOCUMENT NUMBER NUMBER NUMBER EPA 

EPA 440/1-82/071 PB83-205542 X 

EPA 440/1-83/071-b PB83-198598 X 

EPA 440/1-83/071 PB84-198647 X 

EPA 440/1-81/057-b PB81-229296-

EPA 440/1–82/057 PB83/180422 

EPA 440/1-76/015-a PB-253573/0 

COIL COATING 

COAL MINING 

COOLING WATER 

INTAKE 

STRUCTURES 

465 S Coil Coating 

Phase I (Final) 

S Coil Coating 

(Phase II 

Canmaking)­

(Proposed) 

S Coil Coating 

Canmaking Phase 

II (Final) 

434 S Coal Mining 

(Proposed) 

S Coal Mining 

(Final) 

402 S Best Technology 

Available for 

the Location 

Design 

Construction & 

Capacity of 

Cooling Water 

Intake 

Structures for 

Minimizing 

Adverse 

Environmental 

Impact 

* * * AUGUST 8, 1988 DRAFT * * *

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3-40 

EXHIBIT 3-1 (Continued) 

CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS 1/ 

SOURCES OF AVAILABILITY 

INDUSTRIAL GPO 

POINT SOURCE 40 CFR EPA PUBLICATION NTIS ACCESSION STOCK 

CATEGORY PART NUMBER SUBCATEGORY DOCUMENT NUMBER NUMBER NUMBER EPA 

COPPER FORMING 468 S Copper and EPA 440/1-80/073-a X 

Copper Products 

(Draft) 

S Copper (Final) EPA 440/1-84/074 PB84-192459 X 

DAIRY PRODUCTS 405 S Dairy Products EPA 440/1-74/021-a PB238835/3 5501-00898 

PROCESSING Processing 

DOMESTIC SEWAGE S Report to EPA 530-SW-86-004 PB86/184017/AS 

STUDY - Congress on the 

HAZARDOUS WASTES Discharge of 

Hazardous 

Wastes to 

Publicly Owned 

Treatment 

works. 

ELECTRICAL AND 469 S Electrical and EPA 440/1-82/075-b PB82-249673

ELECTRONIC Electronic

COMPONENTS

S Electrical and EPA 440/1-83/075-b PB83-190208 

Electronic 

Components 

Phase II 

(Proposed) 

* * * AUGUST 8, 1988 DRAFT * * * 

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3-41 

EXHIBIT 3-1 (Continued)

CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS 1/

SOURCES OF AVAILABILITY 

INDUSTRIAL GPO 

POINT SOURCE 40 CFR EPA PUBLICATION NTIS ACCESSION STOCK 

CATEGORY PART NUMBER SUBCATEGORY DOCUMENT NUMBER NUMBER NUMBER EPA 

ELECTROPLATING 413 & 433 S Copper, EPA 440/1-74/003-a PB238834/AS 5501-00816 

& METAL Nickel, 

FINISHING Chrome, & Zinc 

(Final) 

S Electroplating EPA 440/1-79/003 PB80-196488 ---------------

- Pretreatment 

(Final) 

S Metal EPA 440/1-82/091-b PB83-102004 --------------- X 

Finishing 

(Proposed) 

S Metal EPA 440/1-83/091 PB84-115989 ---------------

Finishing 

(Proposed) 

S Guidance EPA 440/1-84/091g --------------- ---------------

Manual for 

Electroplating 

and Metal 

Finishing 

Pretreatment 

Standards 

(February 

1984) 

FEEDLOTS 412 S Feedlots EPA 440/1-74/004-a PB23851/AS 5501-00842 

(Final) 

FERROALLOY 424 S Smelting and EPA 440/1-74/008-a PB238650/AS 5501-00780 

Slag 

Processing 

* * * AUGUST 8, 1988 DRAFT * * *

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3-42 

EXHIBIT 3-1 (Continued)

CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS 1/

INDUSTRIAL 

POINT SOURCE 

CATEGORY 

FERTILIZER 

MANUFACTURING 

GLASS 

MANUFACTURING 

GRAIN MILLS 

40 CFR 

PART NUMBER SUBCATEGORY 

418 S Basic 

Fertilizer 

Chemicals 

S Formulated 

Fertilizer 

(Final) 

426 S Pressed & Blown 

Glass (Final) 

S Insulation 

Fiberglass 

(Final) 

S Flat Glass 

(Final) 

406 S Grain 

Processing 

S Animal Feed, 

Breakfast 

Cereal & Wheat 

SOURCES OF AVAILABILITY 

GPO 

EPA PUBLICATION NTIS ACCESSION STOCK 

DOCUMENT NUMBER NUMBER NUMBER EPA 

EPA 440/1-74/011-a PB238652/AS 5501-00868 

EPA 440/1-75/042-a PB240863/AS 5501-01006 

EPA 440/1-75/034-a PB256854/1 5501-01036 

EPA 440/1-74/001-b PB238078/0 5501-00781 

EPA 440/1-74/001-c PB238-907/0 5501-00814 

EPA 440/1-74/028-a PB238316/4 5501-00844 

EPA 440/1-74/039-a PB240861/5 5501-01007 

* * * AUGUST 8, 1988 DRAFT * * *

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3-43 

EXHIBIT 3-1 (Continued)

CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS 1/

INDUSTRIAL 

POINT SOURCE 

CATEGORY 

INORGANIC 

CHEMICAL 

MANUFACTURING 

40 CFR 

PART NUMBER SUBCATEGORY 

415 S Major Inorganic 

Chemical 

Products 

S Inorganic 

Chemicals 

Manufacturing 

(Proposed Phase 

II) 

S Inorganic 

Chemicals 

(Treatability 

Study) 

S Inorganic 

Chemicals 

(Final Phase 

II) 

S Inorganic 

Chemicals 

(Final Phase 

II) 

SOURCES OF AVAILABILITY 

GPO 

EPA PUBLICATION NTIS ACCESSION STOCK 

DOCUMENT NUMBER NUMBER NUMBER EPA 

EPA 440/1-74/007-a PB238611/8 5502-00121 

EPA 440/1-80/007-b PB81-122632 X 

EPA 440/1-80/103 X 

EPA 440/1-82/007 PB82-265612 

EPA 440/1-84/007 PB85-156446/XAB X 

* * * AUGUST 8, 1988 DRAFT * * *

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3-44 

EXHIBIT 3-1 (Continued) 

CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS 1/ 

SOURCES OF AVAILABILITY 

INDUSTRIAL GPO 

POINT SOURCE 40 CFR EPA PUBLICATION NTIS ACCESSION STOCK 

CATEGORY PART NUMBER SUBCATEGORY DOCUMENT NUMBER NUMBER NUMBER EPA 

IRON & STEEL 420 S Steel Making EPA 440/1-74/024-a PB23883/9 5501-00906 

MANUFACTURING 

S Iron & Steel EPA 440/1-80/024-D PB81-184384 

(Proposed) 

Volume I “ PB81-184392 

Volume II “ PB81-184400 

Volume III “ PB81-184418 

Volume IV “ PB81-184426 

Volume V “ PB81-184434 

Volume VI “ PB81-184442 

Set of Vol’s 

S Iron & Steel EPA 440/1-82/024 I thru VI 

(Final) 

Volume I “ PB82-240425-a 

Volume II “ PB82-240433-b 

Volume III “ PB82-240441-c 

Volume IV “ PB82-240458-d 

Volume V “ PB82-240466-e 

Volume VI “ PB82-240474-f 

S Guidance Manual 

for 

Pretreatment 

Standards 

(September 

1985) 

* * * AUGUST 8, 1988 DRAFT * * * 

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---------------

--------------- 

--------------- 

--------------- --------------- --------------- 

3-45 

EXHIBIT 3-1 (Continued)

CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS 1/

INDUSTRIAL

POINT SOURCE 40 CFR

CATEGORY PART NUMBER SUBCATEGORY

LEATHER TANNING 

MEAT PRODUCTS 

AND ENGINEERING 

METAL FINISHING 

S also refer 

to Part 413 

425 S Leather Tanning 

S Pretreatment 

Public Hearing 

Transcript for 

Leather Tanning 

and Finishing 

(February 15, 

1980) 

S Leather Tanning 

(Final) 

432 S Red Meat 

Processing 

(Final) 

S Renderer 

(Final) 

433 S Metal Finishing 

(Proposed) 

S Metal Finishing 

(Final) 

S Guidance Manual 

for Electroplating and 

Metal Finishing 

Pretreatement 

Standards 

(February 1984) 

SOURCES OF AVAILABILITY 

GPO 

EPA PUBLICATION NTIS ACCESSION STOCK 

DOCUMENT NUMBER NUMBER NUMBER EPA 

EPA 440/1-74/016-a PB238079/8 5501-00818 

EPA 440/1-82/016 PB83-1/2593 X 

EPA 440/1-74/012-a PB238076/AS 5501-00843 

EPA 440/1-74/031-d PB253572/2 

EPA 440/1-82/091-b PB83-102004 

EPA 440/1-82/091 PB84-115989 

X 

* * * AUGUST 8, 1988 DRAFT * * *

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--------------- 

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3-46 

EXHIBIT 3-1 (Continued)

CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS 1/

INDUSTRIAL

POINT SOURCE 40 CFR

CATEGORY PART NUMBER SUBCATEGORY

METAL MOLDING 

AND CASTING 

(FOUNDRIES) 

MINERAL MINING & 

PROCESSING 

NONFERROUS 

METALS FORMING 

NONFERROUS 

METALS 

MANUFACTURING 

464 S Metal Molding 

and Casting 

(Vol. I & II) 

(Proposed) 

S Metal Molding & 

Casting 

(Foundries) 

(Final) 

436 S Minerals for 

the 

Construction 

Industry 

471 S Nonferrous 

Metals Forming 

(Final) 

421 S Bauxite 

Refining -

Aluminum 

Segment 

S Primary 

Aluminum 

Smelting -

Aluminum 

Segment 

S Secondary 

Aluminum 

SmeltingAluminum 

Segment 

SOURCES OF AVAILABILITY 

GPO 

EPA PUBLICATION NTIS ACCESSION STOCK 

DOCUMENT NUMBER NUMBER NUMBER EPA 

EPA 440/1-82/070-b

Vol. 1

Vol. 2 X

EPA 440/1-85/070 PB86-161452/AS 

EPA 440/1-75/059 PB 274593/3 

EPA 440/1-84/019-b

Vol. I X

Vol. II X

Vol. III X

EPA 440/1-74/091-c PB238463/4 5501-00116 

EPA 440/1-74/019-d PB240859/9 5501-00817 

EPA 440/1-74/019-a PB238464/2 5501-00819 

* * * AUGUST 8, 1988 DRAFT * * *

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--------------- 

--------------- 

--------------- 

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3-47 

EXHIBIT 3-1 (Continued)

CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS 1/

INDUSTRIAL 

POINT SOURCE 

CATEGORY 

OIL & GAS 

EXTRACTION 

ORE MINING AND 

DRESSING 

40 CFR 

PART NUMBER SUBCATEGORY 

435 S Onshore 

(Interim Final 

(Includes 

Offshore) 

S Oil & Gas 

Extraction 

(Proposed) 

S Assessment of 

Environmental 

Fate & Effects 

of Discharge 

from Offshore 

Oil and Gas 

Operations 

440 S Ore Mining and 

Dressing Volume 

I 

S Ore Mining and 

Dressing Volume 

II 

S Ore Mining & 

Dressing 

(Proposed) 

S Ore Mining & 

Dressing 

(Final) 

SOURCES OF AVAILABILITY 

GPO 

EPA PUBLICATION NTIS ACCESSION STOCK 

DOCUMENT NUMBER NUMBER NUMBER EPA 

EPA 440/1-76/055-a 

EPA 440/1-85/055 PB86-114949/XAB 

EPA 440/4-85/002 PB86/114964/AS 

EPA 440/1-78/061-d PB286520/AS 

EPA 440/1-78/061-e PB286521/AS 

EPA 440/1-82/061-b PB82-250952 X 

EPA 440/1-82/061 

X 

* * * AUGUST 8, 1988 DRAFT * * *

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3-48 

EXHIBIT 3-1 (Continued)

CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS 1/

INDUSTRIAL 

POINT SOURCE 40 CFR 

CATEGORY PART NUMBER SUBCATEGORY 

ORGANIC 414 and S Major Organic 

CHEMICALS 416 Products 

MANUFACTURING & 

PLASTICS AND 

SYNTHETIC FIBERS S Organic 

Chemicals & 

Plastics & 

Synthetic 

Fibers 

(Proposed) 

S Selected 

Summary of 

Information in 

Support of 

Organic 

Chemicals, 

Plastic & 

Synthetic 

Fibers (July 

1985) 

S Guidance Manual 

for 

Implementing 

Total Toxic 

Organic 

(TTO)Pretreatment Standards 

(September 

1985) 

SOURCES OF AVAILABILITY 

GPO 

EPA PUBLICATION NTIS ACCESSION STOCK 

DOCUMENT NUMBER NUMBER NUMBER EPA 

EPA 440/1-74/009-a PB241905/9 5001-008812 

EPA 440/1-83/009-b PB83-205625 

Vol. I PB83-205633 

Vol. II PB83-205641 

Vol. III PB83-205658 

- Set to Vol’s I 

and III 

X 

X 

* * * AUGUST 8, 1988 DRAFT * * *

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--------------- 

--------------- 

--------------- 

--------------- 

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3-49 

EXHIBIT 3-1 (Continued)

CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS 1/

INDUSTRIAL

POINT SOURCE 40 CFR

CATEGORY PART NUMBER SUBCATEGORY

PESTICIDES 

PETROLEUM 

REFINING 

455 S Pesticides 

S Pesticides 

(Proposed) 

S Test Methods 

for Nonconventional 

Pesticides 

Chemical 

Analysis of 

Industrial & 

Municipal 

wastewater 

S Pesticides 

(Final) 

419 S Petroleum 

Refining 

S Petroleum 

Refining 

(Proposed) 

S Petroleum 

Refining 

(Final) 

S Transcript for 

Public Hearing 

for Petroleum 

Refining (April 

9, 1980) 

SOURCES OF AVAILABILITY 

GPO 

EPA PUBLICATION NTIS ACCESSION STOCK 

DOCUMENT NUMBER NUMBER NUMBER EPA 

EPA 440/1-78/060-e PB285480/0 

EPA 440/1-82/079-b PB83-15371 

EPA 440/1-82/079-c PB83-176636 

EPA 440/1-85/079 PB86-150042/XAB 

EPA 440/1-74/014-a PB238612/6 5501-00912 

EPA 440/1-79/014-b PB81-118413 

EPA 440/1-82/014 PB83-1/2569 

=---------------

* * * AUGUST 8, 1988 DRAFT * * *

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3-50 

EXHIBIT 3-1 (Continued)

CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS 1/

INDUSTRIAL 

POINT SOURCE 40 CFR 

CATEGORY PART NUMBER SUBCATEGORY 

PHARMACEUTICALS 439 S Pharmaceutical 

(Proposed) 

S Pharmaceutical 

(Final) 

PHOSPHATE 422 S Phosphorus 

MANUFACTURING Derived 

Chemicals 

S Other NonFertilizer 

Chemicals 

SOURCES OF AVAILABILITY 

GPO 

EPA PUBLICATION NTIS ACCESSION STOCK 

DOCUMENT NUMBER NUMBER NUMBER EPA 

EPA 440/1-82/084-b X 

EPA 440/1-83/084 PB84-180066 X 

EPA 440/1-74/006-a PB241018/1 5503-00078 

EPA 440/1-75/043 X 

* * * AUGUST 8, 1988 DRAFT * * *

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3-51 

EXHIBIT 3-1 (Continued)

CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS 1/

INDUSTRIAL 

POINT SOURCE 

CATEGORY 

PLASTIC & 

SYNTHETIC 

FIBERS 

(MATERIALS) & 

ORGANIC 

CHEMICALS 

MANUFACTURING 

PORCELAIN 

ENAMELING 

40 CFR 

PART NUMBER SUBCATEGORY 

416 S Synthetic 

& 414 Resins 

S Synthetic 

Polymers 

S Organic 

Chemicals & 

Plastics & 

Synthetic 

Fibers 

(Proposed) 

S Selected 

Summary or 

Information in 

Support of 

Organic 

Chemicals, 

Plastic & 

Synthetic 

Fibers (July 

1985) 

S Guidance Manual 

for 

Implementing 

Total Toxic 

Organic (TTO) 

Pretreatment 

Standards 

(September 

1985) 

466 S Porcelain 

Enameling 

(Proposed) 

S Porcelain 

Enameling 

(Final) 

SOURCES OF AVAILABILITY 

GPO 

EPA PUBLICATION NTIS ACCESSION STOCK 

DOCUMENT NUMBER NUMBER NUMBER EPA 

EPA 440/1-74/010 PB2/39241/3 5501-00815 

EPA 440/1-74/036 PB240862/3 5501-01012 X 

EPA 440/1-83/009-b PB83-205625 

Vol. I PB83-205633 

Vol. II PB83-205641 

Vol. III PB83-205658 

Set of Vol’s I 

thru III 

X 

EPA 440/1-81/072-b PB81-201527 X 

EPA 440/1-82/072 X 

* * * AUGUST 8, 1988 DRAFT * * *

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---------------- 

---------------- 

3-52 

EXHIBIT 3-1 (Continued)

CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS 1/

INDUSTRIAL 

POINT SOURCE 

CATEGORY 

POTWs/ 

POLLUTANTS:--

Priority 

Pollutants in 

Publicly Owned 

Treatment Works 

40 CFR 

PART NUMBER SUBCATEGORY 

S Fate of 

Priority 

Pollutants in 

Publicly Owned 

Treatment 

Works (vol. I 

& II) 

SOURCES OF AVAILABILITY 

GPO 

EPA PUBLICATION NTIS ACCESSION STOCK 

DOCUMENT NUMBER NUMBER NUMBER EPA 

EPA 440/1-82/303

Vol. I PB83-122788

Vol. II PB83-122796

* * * AUGUST 8, 1988 DRAFT * * *

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3-53 

EXHIBIT 3-1 (Continued)

CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS 1/

INDUSTRIAL 

POINT SOURCE 

CATEGORY 

PULP, PAPER AND 

PAPERBOARD 

RUBBER 

PROCESSING 

40 CFR 

PART NUMBER SUBCATEGORY 

430 S Unbleached 

Kraft and 

Semi-chemical 

Pulp 

S Pulp & Paper 

and Paperboard 

and Builders’ 

Paper and 

Board Mills 

(Proposed) 

S Pulp, Paper & 

Paperboard and 

Builders’ 

Paper & Board 

Mills (Final) 

S Control of 

Polychlorinated 

Biphenyls in 

the Deink 

Subcategory of 

Pulp, Paper & 

Paperboard 

(Oct. 1982) 

428 S Tire & 

Synthetic 

S Fabricated & 

Reclaimed 

Rubber (Final) 

SOURCES OF AVAILABILITY 

GPO 

EPA PUBLICATION NTIS ACCESSION STOCK 

DOCUMENT NUMBER NUMBER NUMBER EPA 

EPA 440/1-74/025-a PB238833/AS 

EPA 440/1-80/025-b PB81-201535 X 

EPA 440/1-82/025 PB83-163949 X 

EPA 440/1-74/013-a PB238609/2 5501-00885 

EPA 440/1-74/030-a PB214916/6 5501-01016 

* * * AUGUST 8, 1988 DRAFT * * *

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3-54 

EXHIBIT 3-1 (Continued)

CLEAN WATER ACT EFFLUENT GUIDELINES DEVELOPMENT DOCUMENTS 1/

INDUSTRIAL 

POINT SOURCE 

CATEGORY 

SOAPS & 

DETERGENTS 

STEAM ELECTRIC 

POWERPLANTS 

SUGAR PROCESSING 

TEXTILE MILLS 

MANUFACTURING 

TIMBER PRODUCTS 

PROCESSING 

40 CFR 

PART NUMBER SUBCATEGORY 

417 S Soaps & 

Detergents 

421 S Steam Electric 

Power 

Generating 

S Steam Electric 

(Proposed) 

409 S Beet Sugar 

(Final) 

S Cane Sugar 

Refining 

(Interim Final) 

410 S Textile Mills 

S Textile Mills 

(Final) 

429 S Wood Furniture 

and Fixtures 

S Timber Products 

Processing 

(Proposed) 

S Timber Products 

Processing 

(Final) 

SOURCES OF AVAILABILITY 

GPO 

EPA PUBLICATION NTIS ACCESSION STOCK 

DOCUMENT NUMBER NUMBER NUMBER EPA 

EPA 440/1-74/018-a PB238613/4 5501-00867 

EPA 440/1-74/029-a PB240853/2 5501-01001 

EPA 440/1-80/029-b PB81-19075 

EPA 440/1-74/002-D PB238462/6 5501-0011/ 

EPA 440/1-74/002-c PB23814/3 5501/00826 

EPA 440/1-74/022-a PB238832/AS 5501-00903 

EPA 440/1-82/022 PB83-1168/1 

EPA 440/1-74/033-a X 

EPA 440/1-79/023-b X 

EPA 440/1-81/023 PB81-227282 

* * * AUGUST 8, 1988 DRAFT * * *

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CHAPTER 4 

GUIDANCE FOR COMPLIANCE WITH REQUIREMENT 

OF THE SAFE DRINKING WATER ACT 

4.0 INTRODUCTION 

This chapter addresses CERCLA compliance with Safe Drinking Water Act (SDWA) 

applicable or relevant and appropriate requirements (ARARs) in remedial actions.1 It 

is organized into two sections: 

" Section 4.1 provides a general overview of the provisions of the SDWA 

and how they are implemented; and 

" Section 4.2 presents a summary of SDWA ARARs for CERCLA actions 

including drinking water standards, underground injection control, 

sole source aquifer, and wellhead protection program requirements. 

4.1 OVERVIEW OF THE SAFE DRINKING WATER ACT 

The Safe Drinking Water Act (SDWA),2 initially enacted in 1974 and most 

recently amended in 1986, mandates EPA to establish regulations to protect human 

health from contaminants in drinking water. The legislation authorizes national 

drinking water standards and a joint Federal-State system for assuring compliance 

with those standards. Maximum contaminant levels and treatment techniques ensure the 

quality of public drinking water supplies. This section provides an overview of the 

treatment and pollution prevention requirements imposed by the SDWA that may 

potentially affect the selection, design, and implementation of CERCLA response 

activities. 

The establishment of national drinking water standards is authorized under 

Title XIV, Part B of the SDWA. EPA has developed two sets of drinking water 

standards, referred to as primary and secondary standards, to protect human health 

and ensure the aesthetic quality of drinking water respectively. Primary standards 

consist of contaminant-specific standards, known as Maxim Contaminant Levels (MCLs). 

MCLs are set as close as feasible to Maximum Contaminant Level Goals (MCLGs), which 

are purely health-based goals. Secondary 

1 The requirements of CERCLA §121 generally apply as a matter of law only to 

remedial actions. However, as a matter of policy, EPA will attain ARARs to the 

greatest extent practicable considering the exigencies of the situation at the site 

when carrying out removal actions. 

2 42 USC §300f, et seq., as amended (in 1976, 1977, 1979, 1980, 1984, and 

1986). 

* * * AUGUST 8, 1988 DRAFT * * * 

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4-2 

drinking water standards consist primarily of limits used by States to regulate the 

aesthetic quality of water supplies, and are not enforceable at the Federal level. 

Part C of Title XIV of the SDWA authorizes the establishment of a permit 

program and two resource planning programs designed to prevent contamination of 

underground sources of drinking water. Those three programs are: the Underground 

Injection Control (UIC) permit program, the Sole Source Aquifer program, and the 

Wellhead Protection program. 

Owners and operators of certain classes of underground injection wells must, 

obtain permits or be authorized by rule under the UIC program in order to operate 

the wells. The permit applicant must prove to the State or Federal permitting 

authority that the underground injection will not endanger drinking water sources. 

An aquifer that is identified as the solo or principal source of drinking 

water source for an area may be designated as a “sole source aquifer” under Section 

1424(e) of the SDWA. No commitment of Federal financial assistance may be made for 

any project that may contaminate a sole source aquifer so as to create a significant 

public health hazard. 

The 1986 amendments to the SDWA established a Wellhead Protection program 

(WHP) that the States may use to protect public drinking wells and springs, 

“...within their jurisdiction from contaminants which may have any adverse effects 

on the health of persons.” EPA issued guidance on the procedures for determining 

WHP areas in June 1987. States have the option of using this guidance. Guidance was 

issued an June 19, 1987 and notice was published in the Federal Register. 

4.2 SUMMARY OF SDWA ARARs FOR CERCLA ACTIONS 

Under the SDWA, EPA has developed the following programs: 

" Drinking water standards; 

" Underground Injection Control program; and 

" Sole-source Aquifer and Wellhead Protection programs. 

In each of these areas, EPA has promulgated regulations that could be 

potential ARARs or developed guidance that could be considered for CERCLA actions. 

The following subsections discuss these potential ARARs in greater detail. (Chapter 

1, Exhibit 1-1 of this guidance presents a summary of potential SDWA ARARs in each 

of these areas and the appropriate CFR citations.) 

* * * AUGUST 8, 1988 DRAFT * * * 

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4-3 

4.2.1 DRINKING WATER STANDARDS 

EPA has promulgated drinking water regulations designed to protect human 

health from the potential adverse effects of drinking water contaminants. These 

drinking water regulations generally apply to community water systems, which are 

public water systems having at least 15 service connections or serving an average of 

at least 25 year-round residents.3 The drinking water standards and regulations 

promulgated in July 1987 for eight synthetic organic chemicals (52 FR 

25690, July 8, 1987) also apply to a new category of suppliers referred to as 

non-transient, non-community systems.4 These systems are those that regularly serve 

at least 25 of the same persons over 6 months per year (e.g., rural schools). 

Use of MCLs/MCLGs/SMCLs 

Primary drinking water regulations include MCLs for specific contaminants. 

MCLs are enforceable standards which apply to specified contaminants which EPA has 

determined have an adverse effect on human health. MCLs are set at levels that are 

protective of human health, and are set as close to MCLGs5 as is feasible taking 

into account available treatment technologies and the costs to large public water 

systems. MCLGs, in contrast, are strictly health-based and do not take cost or 

feasibility into account. As health goals, MCLGs are established at levels at which 

no known or anticipated adverse effects on the health of persons occur and which 

allow an adequate margin of safety. To date, MCLs have been promulgated for 30 

specific chemicals (10 inorganics, 14 organic chemicals including pesticides, and 

total trihalomethanes, certain radio-nuclides, coliform bacteria, and turbidity). 

The SDWA amendments of 1986 require EPA to promulgate MCLs for 83 specific 

contaminants (including reproposal of the earlier-promulgated 30 contaminants with 

the exception of silver and total trihalomethanes) by June 1989. A list of these 83 

contaminants and their promulgation schedule is provided in Exhibit 4-2. MCLGs have 

been published for 8 organic contaminants and for fluoride. A list of current MCLs 

and MCLGs is presented in Exhibit 1-1. MCLGs have been proposed for 40 additional 

organic and inorganic contaminants. A list of currently proposed MCLGs is presented 

in Exhibit 4-1. 

3 Certain drinking water standards also apply to non-community water systems. 

These include standards for nitrate, turbidity, and microbiological concentrations 

(40 CFR §141.11, 40 CFR §141.13, and 40 CFR §141.14 respectively). 

4 EPA plans to continue to extend its drinking water regulations to nontransient, non-community systems. 

5 Recommended maximum contaminant levels (RMCLs) were renamed maximum 

contaminant level goals (MCLGs) by the 1986 Amendments to the Safe Drinking Water 

Act. 

* * * AUGUST 8, 1988 DRAFT * * * 

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4-4 

EXHIBIT 4-1 

Proposed Maximum Contaminant Level Goals (MCLGs)

Under the Safe Drinking Water Act a/

(1985)

PROPOSED

CHEMICAL 

MCLGs (mg/1)b/ 

Acrylamide

Alachlor

Aldicarb

Aldicarb sulfoxide

Aldicarb sulfone

Arsenic

Asbestos

Barium

Cadmium

Carbofuran

Chlordane

Chromium

Copper

Dibromochloropropane

o-Dichlorobenzene

1,2-cis-Dichloroethylene

1,2-trans-Dichloroethylene

1,2-Dichloropropane

2,4-D

Epichlorohydrin

Ethylbenzene

Ethylene dibromide (EDB)

Heptachlor

Heptachlor epoxide

Lead

Lindane

Mercury

Methoxychlor

Monochlorobenzene

Nitrate

Nitrite

Polychlorinated biphenyls

Pentachlorophenol

Selenium

Styrene

Tetrachloroethylene

0

0

0.009

0.009 

0.009

0.05

7.1 c/

1.5

0.005

0.036

0

0.12

1.3

0

0

0.07

0.07

0.006

0.07

0

0.68

0

0

0

0.02

0.0002

0.003

0.34

0.06

1 0 

1 

0 

0.22 

0.045 

0.14 

0 

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EXHIBIT 4-1

(Continued)

Proposed Maximum Contaminant Level Goals (MCLGs)

Under the Safe Drinking Water Act

(1985)

PROPOSED

CHEMICAL 

MCLGS (mg/1) a/ 

Toluene 2 

Toxapheno 0 

2,4,5-TP 0.052 

Xylene 0.44 

a/ A list of final MCLs and MCLGs is presented in Exhibit 1-1. There are 

currently no proposed MCLs. 

b/ MCLG - Maximum contaminant level goal; proposed values taken from 50 FR 

46936 (November 13, 1985). EPA will repropose those MCLGs with the proposal of MCLs 

for these chemicals. This proposal is expected in May/June 1988. 

c/ Million fibers per liter >10q in length. 

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EXHIBIT 4-2 

List of 83 Contaminants for Which MCLs Must Be 

Promulgated by June 1989 

9 MCLs Currently Final 

Benzene 1,2-Dichloroethane 

Carbon Tetrachloride 1,1-Dichloroethylene 

p- Dichlorobenzene Flouride 

40 Contaminants Mandated for MCL Promulgation by June 19886 

Acrylamide

Aldicarb

Alachlor

*Arsenic

Asbestos

*Barium

*Cadmium

Carbofuran

Chlordane

Chloroenzene

*Chromium

*Coliform Bacteria

Copper

Dibromochloropropane

(DBCP)

o-Dichlorobenzene 

cis-1,2, Dichloroethylene 

trans- 1,2, Dichloro 

ethylene 

*2,4- Dichlorophenoxy 

acetic Acid (2,4-D) 

1-2, Dichloropropane 

Epichlorohydrin 

Ethyl Benzene 

Ethylene Dibromide 

Giardia Lamblia 

Heptachlor 

Heptachlor Epoxide 

*Lead 

34 Contaminants Mandated for MCL Promulgation by June 1989 

Adipates

Aldicarb Sulfone

Aldicarb Sulfoxide

Antimony

Atrazine

Beryllium

*Beta Particle - Photon

Radioactivity

Cyanide

Dalapon

Dinoseb

Diquat 

* 19 MCLs to be reproposed 

*Endrin

Endothall

Glyphosate

*Gross alpha particle 

activity 

Hexachlorocyclopentadiene 

Legionella 

Methylene Chloride 

Nickel 

PAHs 

Phthalates 

Pichloram

1,1,1-Trichloromethane

Trichloroethylene

Vinyl Chloride

*Lindane

*Mercury

*Methoxychlor

*Nitrate

PCBs

Pentachlorophenol

*Selenium

*2,4,5- TP Silvex

Styrene

Toluene

*Toxaphene

*Turbidity

Viruses

Xylene

*Radium 226 and 228

Radon

Simazine

Standard Plate Count

Sulfate

2,3,7,8 - TCDD (Dioxin)

Tetrahlorobenzine

Thallium

Trichlorobenzine

1,1,2 - Trichloromethane

Uranium

Vydate

6 At the time of this manual’s publication, no MCLs for these contaminants had 

been proposed or promulgated under the SDWA amendments of 1986. 

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EXHIBIT 4-3 

Secondary Maximum Contaminant Levels (SMCLs)

Under the Safe Drinking Water Act

(1985)

CONTAMINANT LEVEL 

Chloride

Color

Copper

Corrosivity

Fluoride 

Foaming agents

Iron 

Manganese

Odor

pH

Sulfate

Total dissolved solids (TDS)

Zinc

Source: 40 CFR §143.3.

250 mg/l

15 color units

1 mg/l

Noncorrosive

2.0 mg/l

0.5 mg/l

0.3 mg/l

0.05 mg/l

3 threshold odor number

6.5-8.5

250 mg/l

500 mg/l

5 mg/1

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For water that is to be used for drinking, the MCLs set under the Safe 

Drinking Water Act are generally the applicable or relevant and appropriate 

standard. MCLs are applicable where the water will be provided directly to 25 or 

more people or will be supplied to 15 or more service connections. If MCLs are 

applicable, they are applied at the tap. In addition, MCLs are relevant and 

appropriate as in situ cleanup standards where either surface water or ground water 

is or may be used for drinking water. When no promulgated standard exists for a 

given contaminant, proposed MCLs are to be given greater consideration among the 

to-be-considered advisories. 

A standard for drinking water more stringent than an MCL may be needed in 

special circumstances, such as where multiple contaminants in groundwater or 

multiple pathways of exposure present extraordinary risks (i.e., above an individual 

lifetime cancer risk of 10-4). In setting a level more stringent than the MCL in 

such cases, a site-specific determination should be made by considering MCLGs, the 

Agency’s policy on the use of appropriate risk ranges for carcinogens, levels of 

quantification, and other pertinent guidelines. Prior consultation with Headquarters 

contacts in the Office of Emergency and Remedial Response or the Office of Waste 

Programs Enforcement, as appropriate, is encouraged in such cases. 

The responsibility for enforcing primary drinking water regulations resides 

with the appropriate State government agency in those States where EPA has granted 

the State primary enforcement authority or with EPA in the two States that do not 

have primary enforcement (Indiana and Wyoming). Suppliers of water may be assessed 

criminal or civil penalties for violations of primary drinking water regulations.1 

In addition, suppliers are required to notify the public regarding violations of 

primary drinking water standards. 

Secondary drinking water regulations consist primarily of Secondary Maximum 

Contaminant Levels (SMCLs) for specific contaminants or water characteristics that 

may affect the aesthetic qualities of drinking water (i.e., color, odor, and taste). 

SMCLs are nonenforceable limits intended as guidelines for use by States in 

regulating water supplies. SMCLs apply to public water systems and are measured at 

the tap of the user of the system. A list of existing SMCLs is presented in Exhibit 

4-3. For States that have adopted SMCLs as additional drinking water standards, 

SMCLs are potential State ARARs, depending on site conditions. 

Variances and Exemptions2 

Public water suppliers may also obtain variances or exemptions from complying 

with primary MCLs if certain criteria are met. Detailed procedures for applying for 

a variance or exemption are described in the regulations.7 Granting of an exemption 

or variance is contingent upon demonstrating that noncompliance will not result in 

an unreasonable risk to human health. 

7 40 CFR §142.40 and 40 CFR §142.50 respectively. 

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In general, variances are granted only to water supply systems in which the 

characteristic of the existing raw water sources precludes attainment of MCLs, even 

with the application of best available technology. Variances must include compliance 

schedules, which are determined by State water offices. Exemptions are typically 

granted in situations where, due to compelling factors (which may include economic 

factors), a public water system is unable to comply with the primary MGLs. As with 

variances, exemptions must include a schedule for eventual compliance with the 

primary drinking water regulations. The distinction between the two is that 

exemptions may only be given to a public water system that was in operation on the 

effective date of any MCL or treatment technique requirement. Variances may only be 

granted to public water systems that have installed best available technology, 

treatment techniques, or other means that EPA finds are available. The final date 

for compliance provided in any schedule in the case of any exemption may be extended 

to a maximum period of three years from the date of the exemption (except for 

systems serving fewer than 500 service connections). 

In addition, at CERCLA sites that are causing the public water supplies in the 

area to violate SDWA standards, the RPM should work closely with the water suppliers 

in developing remedial options and, if necessary, in assisting the water suppliers 

in obtaining temporary variances or exemptions if appropriate. However, the RPM 

should first coordinate this activity with the Regional drinking water program. 

4.2.2 UNDERGROUND INJECTION CONTROL (UIC) PROGRAM 

Overview 

Underground injection wells are divided into five general classes of wells for 

permitting and regulatory purposes.8 The applicable UIC technical and procedural 

standards and criteria vary according to the class of well. The five classes of 

wells are: 

" Class I wells are those used to inject industrial, hazardous and 

municipal wastes beneath the lower most formation containing, 

within one-quarter (1/4) mile of the well bore, an underground 

drinking water source.9 

8 According to 40 CFR §144.3, a well is defined as a bored, drilled or 

driven, shaftor a dug hole, whose depth is greater than the largest surface 

dimension. 

9 According to 40 CFR §146.3, an underground source of drinking water 

is defined as any aquifer or its portion that (1) supplies any public water 

supply or contains a sufficient quantity of water to supply a public 

water, and currently supplies drinking water for human consumption 

or contains fewer than 10,000 mg/l total dissolved solids, and 

(2) is not an exempted aquifer according to 40 CFR §146.4. 

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" Class II wells are used to dispose of fluids which are 

brought to the surface in connection with oil and gas 

production, to inject fluids for the enhanced recovery of 

oil or gas, or to store liquid hydrocarbons. 

" Class III wells are those used to inject fluids for the 

extraction of minerals. 

" Class IV wells are used to inject hazardous waste or 

radioactive waste into or above a formation that, within 

one-quarter (1/4) mile of the well, contains an 

underground drinking water source. Operation or 

construction of Class IV wells is prohibited and allowed 

only for the reinjection of treated wastes as part of a 

CERCLA or RCRA cleanup action. 

" Class V wells include all wells not incorporated in 

Classes I-IV. Typical examples of such wells are recharge 

wells, septic system wells, and shallow industrial 

(non-hazardous) disposal wells, 

Of the five classes of wells, Class I, Class IV, and Class V wells are the 

classes most likely to be associated with CERCLA actions For Class I and Class IV 

wells, the injection of hazardous wastes is involved.10 An abandoned or failed 

Class I or Class IV injection well facility could be the site of CERCLA action. 

In addition, UIC requirements may be ARARs for CERCLA remedial actions involving 

the reinjection of treated ground water. Class II and Class III wells are 

unlikely to be associated with CERCLA actions and are not discussed further in 

this section. The Agency is in the process of developing standards applicable to 

Class V wells. However, a CERCLA site cleanup could involve reinjection of 

wastewater that is not defined as hazardous (i.e., the wastewater does not meet 

the definition of hazardous waste) to a Class V well. 

Two important distinctions between Class I and Class IV wells are the 

location and existing quality of the aquifer above, into, or below which wastes 

will or are being injected. Class I wells are used for disposing hazardous waste 

beneath the lowermost formation containing within one-quarter mile of the well, 

an underground source of drinking water. Class IV wells are used for disposing 

hazardous waste into or above a formation containing within one-quarter mile of 

the well, an underground source of drinking water. However, 

10 Hazardous waste in the UIC program means a hazardous waste as defined in 40 

CPR §261.3. In summary, a hazardous waste is a solid waste that either exhibits 

any hazardous characteristics (ignitability, corrosivity, reactivity, EP toxicity), 

or that has been named hazardous and listed, and has not been excluded by 

regulation (e.g., household wastes, domestic sewage, irrigation return flows, 

mining overburden returned to site, and agricultural wastes). 

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the operation or construction of Class IV wells is prohibited, and allowed only 

where the wells are used to reinject treated ground water into the same formation 

from which it was withdrawn as part of a CERCLA cleanup or a RCRA corrective 

action (40 CFR §144.13). There are two clarifications regarding Class IV wells 

contained in 40 CFR §144.13(d) that should also be noted: 

" The injection of hazardous wastes into aquifers that have been 

exempted pursuant to 40 CFR §146.4 (and are otherwise below the 

lowermost underground source of drinking water) are considered 

to be Class I wells, rather than Class IV wells, and subject to 

Class I UIC regulations;11 and 

" The injection of hazardous wastes where no underground source of 

drinking water exists within one-quarter mile of the well, 

provided that EPA or the authorized State determines that such 

injection is isolated to ensure injected wastes do not migrate 

from the injection zone, considered to be Class I wells rather 

than Class IV wells, and subject to Class I UIC regulations. 

The UIC program regulates underground injections into the five classes of 

wells described above. Operation of these injection wells must be authorized by 

permit or rule if the injection results in the movement of fluid containing any 

contaminant into an underground source of drinking water, and if contaminants 

present in injected fluids cause a violation of any primary drinking water 

standard (see section 4.2.1) or adversely affect the health of persons. 

Underground injection wells that are constructed off-site are subject to 

all provisions of the SDWA relating to underground injection of fluids and must 

be permitted by an authorized State agency or EPA and comply with the UIC permit 

requirements. Superfund sites that construct underground injection wells on site 

are not required to comply with the administrative requirements of the UIC 

program, however they must meet the substantive requirements of this program 

where the requirement is determined to be applicable or relevant and appropriate 

to the CERCLA remedial action. 

11 In general, an aquifer that is not currently used for drinking purposes, 

and cannot be used for drinking water in the future due to insufficient yield or 

excessive contamination, may be officially designated as an “exempted aquifer” by 

EPA or an authorized State agency (subject to EPA approval). (40 CFR §146.4) 

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4.2.2.1 Guidelines for Determining Substantive Requirements 

The injection of hazardous wastes from CERCLA sites into wells constructed 

both on-site and off-site must meet the substantive requirements of the UIC program 

including general program requirements that apply to Class I, Class IV, and Class V 

wells, and specific criteria and standards applicable only to Class I wells. 

In general, no owner or operator may construct, operate, or maintain an 

injection well in a manner that results in the contamination of an underground 

source of drinking water at levels that violate MCLs or otherwise adversely affect 

the health of persons (40 CFR §144.12). This requirement applies to all classes of 

wells, including Class I, Class IV, and Class V wells. 

There currently are no requirements for the injection into Class V wells. 

However, if injection into a Class V well could cause the water in the receiving 

underground source of drinking water to violate primary drinking water regulations, 

then EPA or the authorized State agency could require the issuance of a permit that 

could include the substantive requirements of the UIC program (40 CER §144.12(c)). 

Such substantive requirements may be ARAR for on-site actions. 

The Hazardous and Solid Wastes Amendments of 1984 include a provision banning 

RCRA restricted wastes from land disposal unless the Agency promulgates specific 

treatment levels for each waste based on the Best Demonstrated Available Technology 

(BDAT) and in accordance with the statutory schedule.12 Thus far, the Agency has 

promulgated treatment levels for certain solvent- and dioxin-containing wastes (40 

CFR §268.40) and the “California list” prohibitions (40 CFR §268.32) were effective 

in July 1987. 

Until August 1988, solvents, dioxins, chlorophenols, and the “California list” 

are exempt from these treatment standards only when they are disposed of via deep 

well injection.13 This method of land disposal, however, will be banned after August 

1988, if the Agency determines that this practice for these specified wastes is not 

protective of human health and the environment, or the Agency fails to make such a 

determination by August 1988. 

Thus, CERCLA sites that involve the discharge of hazardous wastes into UIC 

wells currently do not have to comply with BDAT treatment levels. However, beginning 

August 1988, before RCRA restricted wastes can be disposed in a Class I well (as 

part of an on-site or off-site activity), or contaminated ground water can be 

reinjected into a Class IV well (as part of an on-site activity), the wastes or the 

ground water must attain any treatment levels that may have been promulgated for 

each constituent disposed in the injection well, or be 

12 RCRA §§3004(d), (e), (g), (m), and (h). 

13 RCRA §3004(f). 

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subject to one of several variances provided for in 40 CFR Part 268 for each RCRA 

listed waste present at the injection well.14 

Class I wells are also required to obtain a RCRA permit-by-rule as a 

condition for injecting hazardous waste. For any UIC permit issued to a Class I well 

after November 8, 1984, RCRA permit-by-rule provisions require the owner/operator of 

the well to comply with RCRA corrective action for releases from solid waste 

management units (40 CPR §264.101). Therefore, a RCRA permit-by-rule issued after 

November 8, 1984 must address any necessary corrective action not only for the 

injection well, but for all solid waste management units at the facility. For any 

UIC permit for Class I wells issued prior to November 8, 1984, RCRA corrective 

action requirements for releases from solid waste management units will be addressed 

upon permit reissuance.15 

All owners and operators of underground injection wells are subject to UIC 

closure requirements. These closure requirements include the preparation and 

submission of a plugging and abandonment plan. For Class I wells, this plan has to 

be submitted in accordance with the requirements provided in 40 CFR §144.28(c). For 

Class IV wells, closure plan requirements are provided in 40 CFR §144.23(b). 

Finally, owners and operators of Class I wells are subject to additional UIC 

operating requirements including: 

" Construction Requirements. Various requirements are specified 

for the construction of Class I wells including the type of 

casing and cementing for the well, appropriate geophysical well 

logging and other test requirements, ect. (40 CFR §146.12). 

" Operating Requirements. The operation of Class I wells are 

subject to specific operating requirements, including use of 

approved fluids surrounding the outermost casing and 

maintenance of injection pressure 

14 The Agency is required to promulgate regulations for RCRA restricted 

wastes in accordance with a statutory schedule. If the Agency fails to meet this 

schedule, then certain wastes present at a CERCLA site may be banned from land 

disposal. 

15 The UIC program corrective action requirements (40 CFR §144.55) are 

limited to repairing well defects to prevent releases from the well. The term 

RCRA corrective action, as used in this context, is broader and requires control 

to not only prevent releases from the well, but to also clean-up past releases 

from the well. RCRA regulatory amendments have been proposed (51 FR 10706; March 

28,1986) to clarify the corrective action requirements for hazardous waste 

injection wells. 

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(40 CFR §§144.28(f) and 146.13). 

" Monitoring Requirements. At a minimum, monitoring requirements 

for Class I wells include analysis of the injected fluids; 

installation and use of continuous recording devices to monitor 

injection pressure, flow rate and volume, and pressure on the 

annulus; demonstration of mechanical integrity (in accordance 

with 40 CFR §146.8) at least every 5 years; and use of 

monitoring wells in the area of review16 to monitor migration of 

fluids into, and pressure in, underground sources of drinking 

water (40 CFR §146.13(b)). As part of the suggested 

coordination between CERCLA RPMs and UIC program (EPA Regional 

and/or State) personnel, monitoring results should be provided 

to the appropriate UIC program office. 

4.2.2.2 Administrative Requirements of the UIC Program 

The UIC program establishes administrative requirements that must be complied 

with prior to and after UIC permit issuance or authorization by rule. The 

requirements would not be considered ARARs for on-site injection of wastes because 

they are procedural or administrative in nature. However, they would be requirements 

to be complied with for off-site injection of wastes into wells. These 

administrative requirements include: 

" Application Requirements. All existing and now underground injection wells 

must apply for a permit unless an existing wall is authorized by rule for 

the life of the well (40 CFR §144.31). For new wells, this application must 

be submitted to EPA or an approved State within a reasonable time prior to 

construction of the well. For existing Class I and Class IV wells, this 

application must be submitted within six months after the approval or 

promulgation of a State UIC program, or to EPA as expeditiously as 

practicable (but no later than 1 year and 4 years after the effective date 

of the UIC program for Class I wells and Class IV wells, respectively).17 

16 According to 40 CFR §146.6, the area of review for an injection well can be 

defined as either the zone of endangering influence or a fixed radius around the 

well. 

17 Specific UIC application requirements are contained in 40 §144.31(e). 

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" Inventory and Other Information Requirements. Existing 

underground injection wells that are authorized by rule are 

required to submit inventory information to EPA or are approved 

State (40 CFR §144.26). This inventory must be submitted no 

later than l year after the approval or promulgation of a State 

UIC program, or to EPA no later than 60 days after the 

effective date of the UIC program Class IV wells only). Owners 

and operators of class I wells do not need to submit inventory 

information to EPA if a permit application (as described above) 

is submitted within one year of the effective he program. 

Further, for EPA administered program only, other additional 

information may be submitted that is necessary to determine 

whether a well is endangering an underground source of drinking 

water(40 CFR §144.27). 

Consistent with the suggested CERCLA/UIC Office Coordination 

described in a section 4.2.2.3 below, RPMs should provide 

inventory information (for both on-site and off-site injection 

wells) for input to the Federal Underground Reporting System 

(FURS). The FURS is a computerized data base that tracks 

inventory information for the UIC Program. 

" Reporting Requirements. The UIC program requires owners and 

operators of Class I wells to maintain records and report 

quarterly on the characteristics of injection fluids and, 

ground-water monitoring wells (if required) and various 

operating parameters (e.g., injection pressure flow rate, etc.) 

(40 CFR §146.13(c)). In addition, Class I well authorized by 

rule are required to report orally with 24 hour any 

noncompliance that may endanger health or the environment (40 

CFR §144.28(b)). There are no reporting requirements for Class 

IV wells under the UIC program. 

4.2.2.3 Coordination Between CERCLA Program and UIC Office 

Before developing or considering remedial options that involve the use of 

underground injection wells, CERCLA RPMs should contact the appropriate State or EPA 

Regional office responsible for administering the UIC program to ensure compliance 

with substantive requirements (on-site and off-site) and all administrative, 

requirements (off-site). RPMs should also contact appropriate State or EPA, Regional 

office personnel responsible for issuing permits under RCRA, to ensure that any UIC 

well that requires a RCRA permit-by-rule is in compliance with RCRA corrective 

action requirements. 

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4.2.3 SOLE SOURCE AQUIFER (SSA) PROGRAM 

Designation of SSAs and Review of Federally Financed Projects 

The SDWA permits EPA to designate aquifers that are the sole or principal 

drinking water source for an area and which, if contaminated, would present a 

significant hazard to human health, as “sole source aquifers.” Under the Sole Source 

Aquifer program, Federal financial assistance may not be committed for any project 

that may contaminate a sole source aquifer so as to create a significant public 

health hazard. Federal financial assistant to design the project to avoid 

contamination of the aquifer.18 

In general, projects that could be subject to review under the Sole Source 

Aquifer (SSA) program include highway or building construction projects, either of 

which could have potentially detrimental effects on public health and the 

surrounding environment. As a general matter CERCLA activities would not in and of 

themselves increase preexisting contamination of sole source aquifers. Therefore, it 

is unlikely that CERCLA activities would be subject to restrictions on Federal 

financial assistance. Nonetheless, a review of any potential problems associated 

with sole source aquifers should be part of the RI/FS process. 

Demonstration Program 

The 1986 amendments to the SDWA also established procedures for the 

development, implementation, and assessment of demonstration programs designed to 

protect critical aquifer protection areas in sole source aquifers. The primary 

component of a SSA Demonstration Program is the development of a comprehensive 

management plan to maintain the quality of ground water in critical protection 

areas. The specific components of a protection plan must include several elements, 

including designation of the specific actions and management practices to be 

implemented to prevent adverse impacts on ground water quality. Any State, municipal 

or local government, or political subdivision, or planning entity, that identifies a 

critical aquifer protection area over which it has authority may apply to EPA for, 

selection of such area for a demonstration program. 

18 Following SDWA §1424(e), EPA issued guidance, in February 1987, on the sole 

source aquifer process entitled “sole Source Aquifer Designation Petitioner 

Guidance.” For purposes of the Edward Underground Aquifer, the sole source aquifer 

in San Antonio, Federal financial assistance is defined in 40 CFR §149.2 in part “as 

any financial benefits provided directly as aid to a project by a department, 

agency, or instrumentality of the Federal government in any form including 

contracts, grants, and loan guarantees.” 

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4.2.4 WELLHEAD PROTECTION PROGRAM 

One provision in the SDWA amendments of 1986 directs States to develop and 

implement programs to protect wells and recharge areas that supply public drinking 

water systems from contaminants that flow into the well from the surface and 

sub-surface. The Agency is responsible for publishing guidance to assist the States 

in preparing their wellhead protection programs. The Office of Ground-Water 

Protection issued this guidance in June, 1987.19 The statute require’s States to 

adopt and submit program plans within 3 years of enactment of the SDWA amendments. 

EPA is charged with reviewing these programs and ensuring that they comply with the 

requirements outlined under SDWA, including identifying all potential anthropogenic 

sources of contaminants, outlining programs for protecting wells from such 

contaminants, and describing contingency plans for replacing wells affected by 

contaminants. Finally, EPA is authorized to make grants to assist in the development 

and implementation of the State programs. 

Because the Wellhead Protection program is designed to be run by the States, 

the program will involve no Federal ARAR provisions. Nonetheless, State wellhead 

protection programs may impose requirements with which a Federal agency must comply, 

unless specifically exempted by the President.20 Thus, there may be ARARs under the 

State wellhead protection programs with which CERCLA response actions must comply. 

For example, a State program may contain requirements for protecting a municipal 

water source or replacing it if contaminated. RPMs should be alert to State programs 

an they develop over the next several years. It is suggested that RPMs coordinate 

with Regional drinking water program personnel assigned to the Wellhead Protection 

program. Regional personnel will be familiar with the progress of State programs, 

and can assist in the beginning of a CERCLA response action to determine ARARs. 

19 See Guidance For Application For State Wellhead Protection Program 

Assistance Funds Under The Safe Drinking Water Act, EPA, (June 1987). 

20 Section 1428(h) of SDWA requires that Federal agencies comply with both 

substantive and procedural State program requirements. However, according to CERCLA 

§121, on-site CERCLA actions need only comply with substantive program requirements. 

* * * AUGUST 8, 1988 DRAFT * * * 

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CHAPTER 5 

GROUND-WATER PROTECTION POLICIES 

5.0 OVERVIEW OF THE GROUND-WATER PROTECTION STRATEGY 

The Environmental Protection Agency (EPA) is charged with the responsibility 

to adopt and enforce policies and regulations to protect the nation’s ground water 

under several different statutes, including CERCLA, the Resource Conservation and 

Recovery Act, the safe Drinking Water Act, the Clean Water Act, the Toxic Substances 

Control Act, and the Federal Insecticide, Fungicide, and Rodenticide Act. In 

response to the need to organize and coordinate the various programs that protect 

ground water EPA issued its “Ground-Water Protection Strategy” in 1984. Although the 

Strategy is not a promulgated requirement and therefore would not be a potential 

ARAR for a Superfund site, it does list several policy statements to be considered 

when developing a protective remedy. The Strategy outlined a number of specific 

activities, including: 

" strengthening EPA’s organization for ground-water 

management and cooperation between Federal and State 

Agencies; 

" issuing guidelines on classifying ground water for EPA 

decisions affecting ground-water protection and corrective 

action; and 

" assessing the problems thee may exist from unaddressed 

sources of contamination. 

The need to strengthen EPA’s ground-water management led to the creation of the 

Office of Ground-Water Protection (OGWP). In addition to coordinating the Agency’s 

Ground-Water Protection Strategy, OGWP is also administering programs mandated under 

SDWA that are geared specifically toward ground-water protection, including the Sole 

Source Aquifer (see section 4.2.3) and Wellhead Protection programs (see section 

4.2.4). 

5.1 OGWP GROUND-WATER CLASSIFICATION GUIDELINE 

To help achieve consistency among programs through appropriate guidance, 

ground-water classification guidelines, based on the policy that different ground 

waters merit different levels of protection, were developed under the Strategy. 

Again, since the ground-water classification guidelines are not promulgated 

regulations, they are not potential ARARs for a superfund site. Under the OGWP 

Classification Guidelines,1 ground waters are classified in one of three 

classification categories (I, II, or III), based upon ecological importance, 

replaceability, and vulnerability considerations. Irreplaceable 

1 In December 1986, EPA published the “Guidelines for Ground-Water Classification 

under the EPA Ground-Water Protection Strategy” (final draft). 

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ground water that is currently used by a substantial population or ground water that 

supports an ecologically vital habitat is considered Class I. Class II ground water 

consists of water that is currently being used or water that might be used as a 

drinking water source in the future. Ground water that cannot be used for drinking 

water due to insufficient quality (e.g., high salinity or widespread naturally 

occurring contamination) or quantity is considered Class III. 

5.2 SUPERFUND APPROACH TO GROUND-WATER RESTORATION 

The Ground-Water Protection Strategy and the draft Classification Guidelines 

emphasize the protection of ground-water resources, while the CERCLA policies 

outlined in the “Draft Guidance on Remedial Actions for Contaminated Ground Water at 

Superfund Sites,” focus on the restoration of contaminated ground waters. Under 

Superfund, ground waters are restored based in large part on their characteristics, 

primarily: vulnerability, use, and value. The goal of the Superfund program’s 

approach is to return ground waters to their beneficial uses, e.g., restore current 

or potential sources of drinking water to drinking water quality. The restoration 

should be accomplished within a time frame that is reasonable given the particular 

circumstances at a site. As necessary, current ground-water users may be provided 

with an alternate source of drinking water or well-head treatment. In formulating a 

ground-water cleanup approach, the following factors are analyzed. 

" Determining the Characteristics of the Ground Water. Using 

the Ground-Water Protection Strategy and the EPA Guidelines 

for Ground-Water Classification as guides, a determination 

is made as to whether the contaminated ground water falls 

within Class I, II, or III. The classification methodology 

assists, in the characterization of the ground-water’s 

vulnerability, use, and, value.2 In applying the 

classification methodology to Superfund sites, additional 

judgment should be exercised. For example: 

2 Ground-water classifications performed at superfund sites are site-specific and 

limited in scope to the Superfund remedial action that well be undertaken. 

Classifications performed by EPA’s Superfund program do not apply to that 

geographical area in general nor to any other actions that may be undertaken under 

any other State or Federal program, or private actions. The classification scheme 

described above may be superseded by other classification scheme that may have been 

promulgated by a State and are applicable or relevant and appropriate to the 

superfund cleanup. This approach may also be modified by State ARARs that derive 

from wellhead protection programs which may require protection of a municipal water 

source, or replacement if that source is contaminated. 

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The Superfund program may define a Classification Review Area that is 

larger or smaller than the 2-mile radius specified in the proposed 

guidelines based on a site-specific determination; 

The Superfund program may use methods other than the DRASTIC3 model 

for predicting aquifer vulnerability to contamination; 

In establishing the aquifer characteristics, the Superfund program 

would always consider factors other than yield in determining that an 

aquifer is unusable; and 

The Superfund program may initiate investigations of other sources 

when background levels of contamination exist rather than treating 

the aquifer as Class III. 

Additional modifications of the specific criteria established in the 

classification guidelines may be warranted when site specific investigations 

reveal factors that the guidelines do not address. 

N Identifying ARARs and Establishing Cleanup Goals. MCLs are the probable 

relevant and appropriate Federal standards for aquifers with Class I and 

Class II characteristics, i.e., irreplaceable, current or potential 

drinking water sources.4 For aquifers with Class III characteristics, i.e., 

which cannot be used for drinking water because of high salinity or 

widespread naturally occurring contamination, MCLs are neither applicable 

nor relevant and appropriate. Further, consistent with Superfund site 

compliance with RCRA ground-water protection standards, the use of 

background levels will generally not be adopted by the Superfund program in 

establishing remediation levels for 

3 National Well Water Association “DRASTIC: A Standardized System for 

Evaluating Ground Water Pollution Potential Using Hydrogeologic Settings”, 

EPA/600/2-85/018, May 1985. 

4 EPA Class I ground waters include both those serving substantial populations 

and those that are ecologically vital. Where ground waters are Class I due to being 

ecologically vital, MCLs may not be stringent enough to protect the ecosystem. If 

this is the case, then site-specific standards should be developed to address 

protection of the ecosystem. 

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Class III aquifers (see discussion presented in Chapter 2, section 

2.7.4.2). While cleanup of aquifers with Class III characteristics is not 

likely, in some cases source control or other measures (such as 

point-of-use treatment) may be undertaken in order to prevent further 

contamination or to mitigate risk from exposure. Also, the need for 

environmental protection may determine the necessity and extent of 

ground-water remediation for such aquifers. 

Cleanup levels should be selected based on an evaluation of the information 

developed during the risk assessment for the site. 

If MCLs or more stringent State standards are not available or are not 

sufficiently protective, Federal and State environmental and public health 

criteria, advisories, guidance and proposed standards should be considered, 

along with MCLGs for special circumstances (discussed on p. 4-6). The 

to-be-considered (TBC) materials include: proposed MCLs, health advisories, 

drinking water equivalent levels, or risk specific doses, and State health 

advisories. 

N Evaluation of Cleanup Alternatives. Alternatives should be developed that 

meet the concentration goals, and also on the basis of the effectiveness, 

implementability, and cost of each alternative. 

Superfund’s approach to ground-water cleanup calls for development of a 

limited number of ground-water cleanup alternatives expressed in terms of a 

remediation level (i.e., cleanup concentration in the ground water), a time 

period for restoration to the preliminary remediation level for all 

locations in the area of attainment, and the technology or approach that 

will be used to achieve those goals. 

In evaluating remedial technologies and other methodologies for 

ground-water cleanup, technical and cost factors are of special importance. 

The technical practicability of each alternative must be evaluated in light 

of the contaminant characteristics and hydrogeological conditions which may 

not allow effective implementation of the alternative to clean up the 

ground water. 

Complex fate and transport mechanisms of contaminated ground waters often 

make it difficult to accurately 

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predict the performance of the ground-water remedial action. Therefore, the 

remedial process must be flexible and allow changes in the remedy based on 

the performance of several years of operation. If the chosen remedial 

action does not meet performance expectations after a period of operation, 

the Superfund program has to decide the extent to which further or 

different action is necessary and appropriate to protect human health and 

the environment. 

N State Ground-Water Protection Programs. In addition to the EPA policy for 

ground-water classification and protection as outlined in the “Ground-Water 

Protection Strategy”, many States have also begun adopting protection 

strategies and classification systems. In fact, the Strategy recognizes 

that States have the principal role in ground-water protection. The May 

1985 OGWP document, “Selected State and Territory Ground-Water 

Classification Systems,” outlines several State classification systems, 

some of which are more strict (i.e., more protective of certain 

ground-water resources) than the Federal system. For example, Wyoming has 

promulgated a regulation that recognizes seven classes of ground water. 

Consequently, a ground water that would be considered Class III under the 

EPA program might be placed under a more protected classification under the 

Wyoming program (e.g., “ground water suitable for industry”). If the State 

has promulgated a particular cleanup level associated with the class 

specifications that is more stringent than the Federal standards, then this 

cleanup level would be ARAR. 

In developing response options for Superfund sites that include 

contaminated ground water, the CERCLA RPM should contact the appropriate 

State or EPA Regional Ground-Water Office to ensure identification and 

compliance with State ARARs and consideration of State ground-water 

programs. 

19. Criminal and civil penalties can be assessed only by States. EPA may only 

commence civil actions for violations of primary drinking water regulations. 

20. Obtaining a variance or exemption requires a finding that an unreasonable risk 

to human health will not result. The Office of Drinking Water is developing guidance 

to define “unreasonable risk to human health.” 

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HYPOTHETICAL SCENARIO ILLUSTRATING HOW APPLICABLE 

OR RELEVANT AND APPROPRIATE REQUIREMENTS ARE IDENTIFIED AND USED 

The following hypothetical scenario illustrates the process of determining 

whether particular requirements are applicable or relevant and appropriate the 

actions to be taken at this hypothetical site. The purpose of this hypothetical 

scenario is to provide an example of how certain site-specific conditions would be 

analyzed, not to analyze fully all aspects of all ARARs for the site. Thus, only 

some of the potential chemical-specific, location-specific, and action-specific 

alternatives for the site are analyzed. The scenario has been designed to illustrate 

ARARs from several different statutes, and currently provides examples of RCRA, 

SDWA, and CWA requirements. 

SITE CONDITIONS 

The Flintstone site is a 9-acre abandoned hazardous waste disposal area. The 

site was used as a sand and gravel pit until the early 1970s. The pit was then used 

for the indiscriminate illegal dumping of household refuse, chemical sludges, 

construction debris, and hazardous liquids. Diagram 1 provides details of the site 

surroundings. 

Disposal methods for the liquid material and sludges included: 

N Discharge of the sludge-like material directly into pits at the 

site; 

N Abandonment of over 2,000 drums of various types of chemical waste on the 

surface of the site; 

N Dumping/burial of drummed materials in shallow trenches in the area; 

and 

N Pouring of the contents of the drums directly onto the surface. 

Solid wastes (refuse, tires, trash, empty drums, and construction debris) 

cover approximately 6 acres of 9-acre-site to an average depth of 10 feet. The depth 

of the fill materials ranges from 4 to 13 feet, in some areas extending below the 

water table, and includes an estimated 19,000 cubic yards of contaminated material. 

Areas of contaminated soil or “hot spots” outside of the waste pits resulted from 

flooding and overtopping of the pits during heavy rainfall and seasonal fluctuations 

in the ground-water level. One of the “hot spots” contains a number of discarded 

drums. Approximately 4,000 cubic yards of contaminated materials similar to those 

disposed of at the site were also dumped in a 1-acre wetlands area southwest of the 

gravel pit. This unauthorized fill may be subject to enforcement under the Clean 

Water Act, and mitigation could be required (under CWA §404 and related regulations 

as 

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Diagram 1 

Flintstones's Site Surroundings 

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relevant and appropriate to the CERCLA action -- see p.3-30).l Finally, PCBcontaminated oils were sprayed along Route 2 and the dirt access road leading to the 

site. 

Ground water passing under the site flows southeast toward the Lamb 

River. The contaminant plume leaves the site and spreads diffusely due to the 

fractured bedrock underlying the site. Contamination of the aquifer is increased by 

pumping of wells in the local area, causing elevated levels of contaminants to be 

drawn into the aquifer. Ground-water flow in the aquifer is 50 ft/yr. 

Contaminants entering the ground water from the main site will reach the 

Lamb River after 10 to 12 years, with the contaminant plume reaching a steady 

state condition in approximately 16 years. The levels of observed on-site 

soil contamination are sufficient to act as a source of continuing ground-water 

contamination for several years if remedial actions are not initiated. Ground water, 

sampled at test wells 1,000 feet downgradient of the site, is contaminated with 

methylene chloride, trichloroethylene (TCE), benzene, cadmium, chromium, and lead. 

The area surrounding the Flintstone site is primarily residential. The closest 

residence are within 600 feet of the southern perimeter of the site. Drinking water 

wells at several private residences located near the site are contaminated. 

Residents of these homes are currently being supplied bottled water. 

IDENTIFICATION AND ANALYSIS OF CHEMICAL-SPECIFIC REQUIREMENTS 

During the scoping of the RI/FS, chemical-specific requirements for the site 

are initially identified.2 For chemicals, this is done by comparing the chemicals 

identified at the site with the list of chemical-specific ARARs in Exhibit 1-1 of 

Chapter 1 of this manual. The following table summarizes the data on chemicals found 

on the site: 

1 The 1-acre area represents the extent of the wetland as verified by Regional 

dredge and fill program personnel. The areas outside of the waste pits which have 

been subject to flooding and high ground-water tables have been determined not to be 

wetlands. 

2 Identification of chemical-specific ARARs should be modified and revised as 

necessary throughout the RI/FS. Note too that design changes or respecifications may 

result in further refinement of all types of ARARs. 

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Summary of Data on Chemicals Found on Site 

Waste Concentration Media Affected 

Volatile Organic Solvents 

trichloroethylene (TCE) 22ppb-43ppb Ground water 

methylene chloride 60 ppm Ground water 

benzene 200 ppb Ground water 

Metals 

cadmium, chromium, lead >.05ppm Ground water 

In identifying potential ARARs for these chemicals, the following procedure 

would be used (Note that this example works through the procedure for only one of 

the chemicals listed above.) 

Identification of Chemical-specific ARARs 

First, consult Exhibit 1-1 in Chapter 1 to determine if a chemical-specific 

standard or standards have been established for the chemicals. The chemical-specific 

standards for one of the chemicals in this example, trichloroethylene, are listed 

below, as taken from Exhibit 1-1. 

Chemical-Specific Standards for Trichloroethylene 

SDWA MCL 

CWA Ambient Water Quality Criteria 

Aquatic Life (Freshwater Acute) 

Aquatic Life (Freshwater Chronic) 

Aquatic Life (Marine Acute) 

Human Health (Water and Fish 

Ingestion) 

Human Health (Fish Ingestion 

only) 

5.0 x 10-03 mg/l 

4.5 x 10+01 mg/l 

2.1 x 10+01 mg/l 

2.0 mg/l 

2.7 x 10-03 mg/l 

8.1 x 10-02 mg/l 

Exhibit 1-1 also contains a Maximum Contaminant Level Goal (MCLG) of 0 mg/l, which 

should be considered in special circumstances, such an where multiple contaminants 

are found in the ground water or where multiple pathways of exposure present 

extraordinary risks (i.e., individual lifetime cancer risk above 10-4). 

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Analysis of Chemical-specific ARARs 

Determination of Applicability 

Second, following the procedures in Exhibit 1-5 of Chapter 1, determine if any 

of the listed chemical-specific standards fully address the particular site-specific 

conditions and is applicable. In this case, the individual wells in the local 

community are not public sources of drinking water. Therefore, the SDWA standards 

would not be applicable. 

Determination of Relevance and Appropriateness 

Third, determine which of the standards, if any, address situations 

sufficiently similar to the CERCLA site conditions that they should be treated as 

probable relevant and appropriate requirements. As the Superfund program gains 

further experience in identification of site-specific ARARs, the step by-step 

analysis described here may be supplemented by policy decisions on the 

relevance and appropriateness of some ARARs. For example, EPA has determined as a 

matter of policy that MCLs will be relevant and appropriate for ground water or 

surface water that currently is or may in the future be used directly 

for drinking. (In these cases, the MCLs should be met in the surface water or 

ground water itself.) The following analysis of the MCL for trichloroethylene 

is included to explain the logic of this policy in terms of ARARs. 

In this hypothetical situation, the ground-water flow is toward private wells. 

Although the water under the site is not a current source of public drinking water, 

and the wells do not belong to a public water system and thus do not meet the 

jurisdictional prerequisites for the SDWA requirements, the water may be a potential 

future source of drinking water. Because the contaminated ground water may be used 

directly for drinking water in the future, the MCL for trichloroethylene should be 

identified as a probable relevant and appropriate standard. Generally, use the 

factors listed in Exhibit 1-7 to determine if the requirement is potentially 

relevant at the site. If the requirement is relevant, focus on the purpose of the 

requirement, the characteristics of the site and contamination, the character of the 

release, the duration of the activity, and the basis for any waiver or exception to 

determine if the requirement is appropriate. With respect to the SDWA MCL for 

trichloroethylene, for example, the following factors would be considered: 

SDWA Requirement 

Objective: Provide safe drinking 

water 

Purpose: Avert TCE contamination 

Media: Ground water 

Substance: Trichloroethylene 

Problem at CERCLA Site 

Contamination of drinking water 

source 

Avert TCE contamination 

Ground water 

Trichloroethylene 

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Parties: Public drinking water 

system 

Activity: Provision of water 

Variances: None 

Place: Drinking water tap 

Facility: Public drinking water 

source 

Use of

Resource: Human consumption

Private drinking water wells 

Cleanup of contamination 

Not relevant

Aquifer

Uncontrolled waste site

Human consumption/ 

other uses not specified 

Based on this comparison, the CERCLA situation appears to be sufficiently 

similar to the problem addressed by the SDWA requirement that the SDWA MCL for 

trichloroethylene would be considered relevant. Considering (1) the purpose of the 

requirement and the purpose of the CERCLA action (both are directed toward 

protection of current and potential drinking water), (2) the substance covered by 

the requirement (trichloroethylene) and (3) the fact that EPA has decided that MCLs 

are appropriate for future drinking water, it can be judged that MCLs are both 

relevant and appropriate. 

Water Quality Criteria (WQC) more stringent than a SDWA MCL may be found 

relevant and appropriate when there are environmental factors that are being 

considered at a site, such as protection of aquatic organisms. In this hypothetical 

situation, cleanup of the ground water under the waste pits will not be carried out 

in order to protect aquatic wildlife in Flint Stream since the plume of contaminated 

ground water will never reach the stream. Contaminated ground water is not currently 

reaching the Lamb River, and is not expected to do so at a level that would 

substantially harm aquatic life in the future. The WQCs for protection of aquatic 

life therefore are not relevant and appropriate for the site. Water quality criteria 

for protection of human health may be relevant and appropriate depending on the 

likely route of exposure. However, if the potential for human exposure to 

contaminants in the Lamb River existed, then WQC for protection of human health (for 

fish consumption) should be considered, or if the wetlands area were contaminated 

with TCE, and the cleanup goal was to make the water in the wetlands suitable for 

aquatic life, it would be necessary to consider ambient water quality criteria and 

State water quality standards. If such a State water quality standard were 

established for protection of aquatic life, the standard would be applicable. 

ARARs and Risk Assessment 

Standards identified as potential ARARs, as well an TBCs, should be analyzed 

according to the procedures outlined in the Superfund Public Health Evaluation 

Manual. Guidelines or criteria found in the to-be-considered 

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category should be used when ARARs do not exist for a particular chemical or when 

the risk assessment indicates that existing ARARs are not sufficient to protect 

human health or the environment. 

A similar analysis should be conducted for each of the other potentially ARAR 

chemical-specific standards. 

IDENTIFICATION AND ANALYSIS OF LOCATION-SPECIFIC REQUIREMENTS 

Identification and analysis of location-specific requirements should follow 

the same general procedure as outlined above for chemical-specific requirements. The 

locational characteristic of the site should be compared to the location-specific 

requirements listed in Exhibit 1-2 in Chapter 1. In this case, a review of the 

Flintstone site location reveals several characteristics that should be analyzed 

further. They include: 

N Flint Stream or Lamb River may be wild, scenic, or recreational rivers; 

N Site may be within 100-year floodplain; and 

N Remedial actions may affect wetland. 

For purposes of this hypothetical example, it is assumed that neither the 

stream nor the river has been designated a wild, scenic, or recreational river, and 

that the site is not within a floodplain. Therefore, the requirements listed in 

Exhibit 1-2 will not be ARARs based on those characteristics. For actions affecting 

the 1.0 acre contaminated wetlands area, however, Exhibit 1-2 lists CWA §404, 40 CFR 

Part 230, Army Corps of Engineers regulations (33 CFR Parts 320-330), and 40 CFR 

Part 6, Appendix A, as potential ARARs. An assessment of the potential effects of 

the remedial action on the wetland should be made during the RI/FS. Consultation 

with the State and contacts with the §404 Wetlands Protection Office in the Region 

should be made to determine if special steps are required to avoid adverse effects. 

In this hypothetical situation, because dredged or fill material will not be 

discharged into the wetland as part of the remedial action, CWA §404, 40 CFR Part 

230, and Army Corps of Engineers regulations (33 CFR Parts 320-330) are not 

applicable. However, 40 CFR Part 6, Appendix A, which is EPA’s statement of 

procedures on wetlands protection, requires, to the extent possible, that remedial 

activities avoid long- and short-term adverse impacts associated with the 

destruction or modification of wetlands. When there are no practicable alternatives 

to conducting such activities in wetlands, the potential harm should be minimized. 

IDENTIFICATION AND ANALYSIS OF ACTION-SPECIFIC REQUIREMENTS 

Cleanup at the hypothetical Flintstone Site will probably involve a large 

number of different remedial activities. It is assumed that several actions would be 

considered, including: 

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N The consolidation of waste from the contaminated wetland area by picking 

it up and removing it to one of the waste pits on the main site; 

N Extraction of contaminated ground water, treating it, and discharging it 

to a publicly owned treatment works (POTW); 

N Extraction of contaminated ground water, treating it, and discharging it 

directly to Flint Stream; and 

N Extraction of contaminated ground water, treating it, and injecting it 

back into the aquifer. 

Not all of these potential actions at the site are analyzed in this 

hypothetical scenario. The procedure used, however, would be followed for each of 

the potential actions. 

Identification of Action-specific ARARs 

First, the potential action-specific ARARs for each of the actions under 

consideration would be identified by consulting Exhibit 1-3 in Chapter 1, which 

lists action-specific requirements under RCRA (including the Hazardous and Solid 

Waste Amendments of 1984) and the CWA. In this hypothetical situation, for example, 

Exhibit 1-3 indicates that the potential requirements involved in consolidation will 

differ depending on whether the consolidation occurs within units or between units. 

Among the requirements are land disposal restrictions, closure requirements, and 

post-closure care requirements. 

Analysis of Action-specific ARARs 

Exhibit 1-3 also lists the prerequisites for applicability of the requirements 

associated with each of the actions listed. After potential ARARs have been 

identified, the next stop is to determine whether the prerequisites for RCRA 

applicability are satisfied by the site-specific conditions for the actions under 

consideration. In this case, Exhibit 1-3 indicates that the prerequisites for 

applicability of the consolidation requirements are placement of hazardous wastes 

into another unit. In analyzing these prerequisites, therefore, first determine 

whether RCRA hazardous wastes or constituents are involved in the action. 

Trichloroethylene is listed RCRA waste #U228 and cadmium, chromium, and lead are 

hazardous waste constituents. However, it should not be assumed that these materials 

are RCRA hazardous wastes. Testing or attempts to identify the origin of the 

constituents should be undertaken, when necessary, to determine whether the first 

prerequisite, that the wastes are RCRA hazardous wastes, is satisfied. Second, 

analyze the prerequisite concerning placement of the wastes. In this situation, 

movement of contaminated materials from the wetland area across the boundary of the 

1.0 acre unit and placement of the waste in the second unit would satisfy the 

prerequisite, because the site consists of two separate areas of contamination, and 

the materials are being 

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removed from the first and placed in the second. 

Because the prerequisites associated with consolidation are satisfied, 

next it is necessary to consider the requirements listed under Exhibit 1-3 for 

land-disposal requirements and restrictions, for closure requirements, and for 

post-closure care and monitoring, since they are triggered if consolidation 

between two units occurs. If the wastes are being consolidated in a new 

landfill, the entry in Exhibit 1-3 for construction of a new landfill on site 

should next be consulted to determine the requirements for that action. If, 

on the other hand, the wastes are being consolidated in an existing landfill 

(which would not be the case in this hypothetical scenario) the entry in 

Exhibit 1-3 for closure with waste in place may be relevant and appropriate. 

In either situation, additional prerequisites are listed in Exhibit 1-3 and 

regulatory citations are provided so that additional details about the requirements 

may be obtained if necessary. The identification of which requirements would be 

ARARs would depend, in part, on the further actions to be taken and the wastes 

involved. If, for example, the wastes are subject to the land disposal bans under 

RCRA, then treatment to Best Demonstrated Available Technology (BDAT) levels would 

be required before the wastes could be land disposed. 

Action-specific requirements for other potential actions at the site would be 

analyzed in the same way as the consolidation action described above. For example, 

direct discharge to Flint Stream or indirect discharge to a POTW are actions that 

Exhibit 1-3 indicates are subject to discharge requirements established pursuant to 

the Clean Water Act. Specifically, the direct discharge of treated ground water to 

Flint Stream is subject to National Pollutant Discharge Elimination System (NPDES) 

Program discharge standards and requirements. According to the draft NCP, “on-site” 

is defined for permitting purposes to include the “areal extent of contamination and 

all suitable areas in very close proximity to the contamination necessary for 

implementation of the response action.” For this hypothetical example, the area of 

contamination resulting from the abandoned hazardous waste area is directly adjacent 

to Flint Stream. Therefore the extraction and treatment of contaminated ground 

water, and subsequent discharge to Flint Stream is considered an on-site action due 

to the proximity of the site to Flint Stream. As such, the discharge need not have a 

NPDES permit, but must meet substantive ARARs. As discussed in Chapter 3, these 

substantive requirements for the Flintstone site include discharge limits. These 

limits would be based on the more stringent standards between the following: 

N Technology-based standards. Because the Flintstone site was used for 

indiscriminate illegal dumping, and not for the sole use of an industrial 

generator of hazardous waste, there are no applicable EPA guidelines. 

Therefore, technology-based standards have to be set using best 

professional judgment. The proposed response alternative for the 

Flintstone site must be reviewed to ensure the use of treatment 

technologies that have been proven effective to treat the pollutants 

present in the contaminated ground water. Numerical effluent limits or 

treatment efficiency requirements can be 

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developed. 

N Water-quality criteria/State standards. The identification of which water 

quality criteria/State standards would be applicable or relevant and 

appropriate depends primarily on the designated use of Flint Stream. If, 

for example, the State designation of Flint Stream required protection and 

propagation of fish and aquatic life, EPA water quality criteria for the 

protection of aquatic life (or applicable or relevant and appropriate 

State water quality standards, if available) would need to be met for each 

pollutant of concern prior to discharge. 

Other substantive NPDES requirements such as effluent toxicity monitoring or 

best management practices would also have to be evaluated based on the Flintstone 

conditions. The appropriate EPA/State Water Program Office should be consulted 

regarding all substantive NPDES requirements that may be applicable or relevant and 

appropriate for the Flintstone site. 

Prior to the determination to discharge treated ground water from the 

Flintstone site to a POTW, it first must be determined if the POTW is in compliance 

with applicable Federal laws (i.e., the POTW’s NPDES permit and pretreatment program 

requirements). Therefore, the Flintstone site manager needs to evaluate the POTW’s 

record of compliance. To do this, the Flintstone site manager would need to contact 

the POTW oversight authority (i.e., appropriate EPA Region or delegated State Water 

Office) to collect data pertaining to the POTW’s compliance status. If the POTW is 

out of compliance with applicable laws, then according to CERCLA §121(d)(3), the 

discharge to the POTW should be prohibited. 

A determination of the POTW’s ability to accept the treated ground water 

should also be made during the remedial alternatives analysis under the RI/FS 

process. Factors that should be considered for this determination are discussed in 

Section 3.3.2. and include, for example, evaluating waste compatibility with the 

POTW. The Flintstone site manager should coordinate with the appropriate Water 

Division officials and their State counterparts and POTW representatives in 

evaluating the potential use of the POTW for the discharge of Flintstone site 

wastewater. 

If the remedial alternative under consideration involves discharge to a POTW, 

the pollutants to be discharged must be identified carefully. Certain pollutants are 

specifically precluded from discharge into a POTW (those that will create a fire or 

an explosion hazard in the POTW, for example). Other discharges must specifically 

comply with local POTW pretreatment programs. These local pretreatment programs 

typically have specific requirements regarding discharge to their POTW. For example, 

any local limits for the pollutants of concern at the Flintstone site would have to 

be complied with prior to discharge to the POTW. Any other specific discharge 

requirements of a POTW (e.g., prohibitions such as temperature, color, etc.) are 

considered applicable and must be complied with. 

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Other substantive requirements for discharge to POTWs include RCRA 

permit-by-rule requirements, which must be complied with for discharges of RCRA 

wastes to POTWs by truck, rail, or dedicated pipe. If the treated ground water is 

transported by a dedicated pipe from the site directly to the POTW, the POTW would 

be subject to the RCRA permit-by-rule provisions, and will have to also be in 

compliance with RCRA requirements in NPDES permits. The Flintstone site would also 

need to meet applicable RCRA requirements, including manifesting requirements, etc. 

Specific Clean Water Act ARARs are discussed in greater detail in Chapter 3. 

For the underground injection of treated ground water, Underground Injection 

Control (UIC) program requirements established under the Safe Drinking Water Act are 

potential ARARs (see 40 CFR Part 144). The identification of which specific 

requirements would apply depends on the type of injection well constructed at the 

site. Class I, Class IV and Class V wells are the three classes most likely to be 

associated with CERCLA actions. For the Flintstone site, contaminated ground water 

is to be extracted, treated, and reinjected back into the ground. The proposed well 

bore is located within one-quarter mile of an underground drinking water source. 

Therefore, the well is classified as a Class IV well. Such wells may be used for 

cleanup at CERCLA sites (40 CFR §144.13(c)). Further, the proposed well bore will be 

located within the Flintstone site. Therefore, this is considered an on-site 

discharge. No UIC permit is required, but substantive UIC program requirements must 

be met. 

Substantive requirements for Class IV injection wells include: 

N The general requirement that no owner or operator may construct, operate, 

or maintain an injection well in a manner that results in the 

contamination of an underground source of drinking water; 

N Applicable RCRA provisions; and 

N Construction, operating, and closure requirements. 

A more detailed discussion of these requirements is provided in Section 4.1.2. 

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APPENDIX

OVERVIEW OF MAJOR ENVIRONMENTAL STATUTES AND REGULATIONS

1. OVERVIEW OF RESOURCE CONSERVATION AND RECOVERY ACT 

1.1 OFFICE OF SOLID WASTE 

This section describes the Resource Conservation and Recovery Act (RCRA) of 

1976, the additions to the Act made in the Hazardous and Solid Waste Amendments 

(HSWA) of 1984, and accompanying regulations finalized or proposed by October 1, 

1987. As the major federal statute creating standards for the treatment, storage, 

and disposal of hazardous waste. RCRA is the most important source of applicable or 

relevant and appropriate standards for actions taken pursuant to CERCLA §§104 and 

106. The first part of this section provides an overview of the statutes, noting 

their purpose and structure; the second provides a summary of the important 

regulatory requirements under RCRA and HSWA. 

1.2 OVERVIEW OF RCRA 

RCRA was enacted in 1976 to regulate the management of hazardous waste, to 

ensure the safe disposal of wastes, and to provide for resource recovery from the 

environment by controlling hazardous wastes “from cradle to grave.” The statute 

attempts to address all aspects of hazardous waste management by establishing 

essentially a three-step process: (1) identification and listing of wastes to be 

regulated as hazards; (2) tracking of wastes from the point of generation, through 

transportation, to the site of final treatment, storage, or disposal; and (3) 

controlling the management practice used during the treatment, storage, and ultimate 

disposition of these wastes through technical standards, performance standards, and 

permitting requirements. 

Although certain statutory and regulatory requirements under RCRA apply 

specifically to generators and transporters, the majority of substantive RCRA 

requirements affect the management of hazardous waste treatment, storage, and 

disposal facilities. 

RCRA operating standards for treatment, storage, and disposal facilities will 

be the primary area of interaction between RCRA requirements and CERCLA responses. 

The authority for these requirements is found in RCRA Subtitle C, §3004, Standards 

Applicable to Owners and Operators of Hazardous Waste Treatment, Storage, and 

Disposal Facilities. Subtitle C also addresses the other aspects of the three-step 

process mentioned above, including identification and listing of hazardous waste 

(§3001); standards applicable to generators and transporters of hazardous waste 

(§§3002 and 3003); and standards applicable to owners or operators of facilities for 

treatment, 

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storage, and disposal of hazardous waste (§3305). 

RCRA Subtitle D provides criteria for the disposal of nonhazardous wastes in 

open dumps and sanitary landfills. These may be applicable or relevant and 

appropriate for CERCLA actions in a limited number of situations. RCRA §4004(a) 

requires EPA to issue regulations establishing criteria for determining whether a 

facility should be classified as a sanitary landfill or as an open dump. It also 

allows states to develop solid waste management planning programs that set forth a 

plan for closing open dumps. §4005(a) prohibits open dumping of hazardous or solid 

waste. 

The enactment in November, 1984 of the Hazardous and Solid Waste Amendments of 

1984 (HSWA) added significant new provisions to §3004. Among them are new 

requirements that: 

N Prohibit land disposal of certain wastes, including some liquid 

hazardous wastes and dioxins (this prohibition does not apply 

legally to disposal from a CERCLA response action for a four-year period 

after enactment of the amendment; however, it could be determined to be 

relevant and appropriate before the date of its legal applicability);l 

N Require a review of each RCRA hazardous waste to determine whether 

land disposal of the waste should be prohibited.2 The ban would not 

apply if an EPA-developed treatment standard for a waste had been 

met; 

N Require (1) the installation of a double liner and a leachate 

collection system and (2) ground-water monitoring for landfills and 

surface impoundments, and the use of leak detection systems for 

certain types of hazardous waste management units;3 

N Require corrective action for all releases from a solid waste 

management unit at permitted hazardous waste treatment, storage, or 

disposal facilities. (Although this requirement applies only to 

1 Initial land ban regulations were issued in 1986 and are found in 40 CFR 

Part 268. A correction to those regulations was issued in June, 1987 (52 FR 21010) 

and additional regulations for “California List” wastes were issued in July, 1987 

(52 FR 25760). 

2 The schedule of hazardous wastes to be reviewed by EPA is set out in 40 CFR 

Part 268. 

3 A Notice of Proposed Rulemaking (NPRM) was issued on May 29, 1987 discussing 

possible regulations for leak detection requirements. Rules covering the installation 

of liners and leachate collection systems have also been issued and are found in 

Subparts I - N of Part 264. 

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permitted facilities, standards for corrective action developed under RCRA 

may be applicable or relevant and appropriate to similar CERCLA actions.)4 

In addition, corrective action requirements as necessary or appropriate 

are authorized under §3004(u); and 

N Authorize administrative orders requiring corrective action or other 

response measure for releases of hazardous waste from interim status 

facilities. 

1.3 RCRA REGULATIONS PERTAINING TO HAZARDOUS WASTE 

The RCRA program is largely defined by regulations, which, along with guidance 

and decisions made in the permitting process, are the source of a great majority of 

the RCRA program’s specific requirements. RCRA requirements that may be applicable 

or relevant and appropriate to CERCLA response actions are found primarily in the 

RCRA regulations (40 CFR Parts 260-271). 

The RCRA regulations that are of primary importance for CERCLA responses 

are the Standards for Owners and Operators of Hazardous Waste Treatment, provided in 

RCRA §3004. The RCRA regulations differ depending on whether a hazardous waste 

facility has a RCRA permit (40 CFR Part 264) or is operating under interim status 

(40 CFR Part 265). CERCLA remedies will generally be consistent with the more 

stringent Part 264 standards, even though a permitted facility is not involved. 

Therefore, only the Part 264 standards are described here. 

Nine of the subparts in 40 CFR Part 264 are potentially applicable or relevant 

and appropriate to CERCLA. Seven of these subparts establish process-specific 

standards for particular types of hazardous waste management units: 

N Containers (Subpart I) 

N Tanks (Subpart J); 

N Surface impoundments (Subpart K); 

N Waste piles (Subpart L); 

N Land treatment (Subpart M); 

N Landfills (Subpart N); and 

N Incinerators (Subpart O). 

The other subparts that are potentially applicable or relevant and appropriate are 

ground-water protection (Subpart F) and closure and post-closure (Subpart G). These 

nine subparts are briefly described below. 

4 Procedures for corrective action are found throughout subparts of the 

RCRA regulations. A proposed rule covering administrative procedures for corrective 

action hearings was issued on August 6, 1987 (52 FR 29222). 

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Subpart F -- Ground-Water Protection (40 CFR §§264,90-264,101) 

Subpart F creates broad ground-water protection requirements under RCRA. These 

requirements include both concentration standards and monitoring requirements and 

corrective action requirements for regulated units. 

The EPA Regional Administrator is required by 40 CFR §264.92 and §264.94 to 

set ground-water protection standards and concentration limits for Appendix VIII and 

Appendix IX5 hazardous constituents once they are detected in the ground water at a 

hazardous waste land disposal facility. According to 264.94(a), the concentration 

limits will be based on: (1) the background level of each constituent in the ground 

water at the time the limit is specified in the permit; (2) maximum concentration 

limits (MCLs) for 14 specified hazardous constituents if background levels are below 

these standards; or (3) an “alternate concentration limit’ (ACL) that can be set by 

the Regional Administrator if he determines that a less stringent standard will 

protect public health and the environment. The factors that should be used to grant 

an ACL are outlined in 40 CFR §264.94(b).6 

Subpart F also establishes a three-phase ground-water monitoring program for 

permitted land disposal facilities. 40 CFR 1264.98 outlines the requirements of a 

“detection monitoring program,” to detect the existence of designated hazardous 

constituents in the ground waters. The detection monitoring program’ is a 

semi-annual monitoring protocol. If hazardous constituents are detected, the 

ground-water protection strategy (GWPS) must be established.7 

40 CFR §264.99 outlines the compliance monitoring program that must be 

established whenever hazardous constituents are detected. During this phase, the 

owner or operator must conduct compliance monitoring to determine if the levels of 

constituents exceed the ground-water protection standards (background levels, MCLs, 

or ACLs) specified in the permit. If GWPS limits are exceeded, the owner or operator 

must institute a corrective action program to bring the facility back into 

compliance (40 CFR §264.100). In conjunction with the corrective action program, the 

owner or operator must also establish effectiveness of the corrective action 

program. The owner or operator must continue the compliance monitoring program until 

the GWPS is achieved for 

5 Rules adding Appendix IX list were finalized on September 9, 1987 (52 FR 

25842). 

6 The factors used to grant an ACL are presented in Chapter 2. 

7 A proposed rule issued August 24, 1987 (52 FR 31948) would establish new 

standards for determining when hazardous wastes are “detected” in ground water, and 

thus when corrective action and compliance monitoring provisions would be triggered. 

This rule would change the definition of “detection”, for example, to be 

“statistically significant evidence of contamination.” 

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three consecutive years before returning to the detection monitoring program. 

Subpart G -- Closure and Post Closure (40 CFR §§264.110-264.120) 

Subpart G creates technical and procedural standards for closure and 

post-closure care of hazardous waste management facilities. 

40 CFR §264.111 requires that the owner or operator close the facility in a 

manner that “minimizes the need for further maintenance” and “controls, minimizes, 

or eliminates ... post-closure escape of hazardous waste, leachate, contaminated 

rainfall, or waste decomposition products” to the environment.”8 

Process-specific closure requirements for surface impoundments (40 CFR 

§264.228) specify that if some wastes or contaminated materials are left in place at 

final closure, the facility must be closed in accordance with the post-closure 

requirements contained in 40 CFR §§264.117-.120. Process-specific closure 

requirements for landfills (40 CFR §264.310) specify that the owner or operator must 

cover the landfill with a specially designed and constructed final cover. After 

final closure, the owner or operator must comply with the post-closure requirements 

contained in 40 CFR §§264.117-264.120. Finally, process-specific closure 

requirements for waste piles (40 CFR §264.258) specify that if, after removing or 

decontaminating all residues and making all reasonable efforts to effect removal or 

decontamination of contaminated components, subsoils, structures, and equipment, the 

owner or operator finds that not all contaminated subsoils can be practicably 

removed or decontaminated, he must close the facility and perform post-closure care 

in accordance with the closure and post-closure care requirements for landfills.9 

40 CFR §264.12 requires the owner or operator to prepare a written plan as 

part of the permit conditions that describes how and when the facility will be 

closed and partially closed, describes procedures for decontamination activities, 

and includes a schedule for conducting closure. In addition, the owner or operator 

must notify the Regional Administrator at least 180 days prior to the date he 

intends to begin closure activities. The closure plans must be reviewed by the 

Regional Administrator and are subject to the public participation provision in 40 

CFR Part 124 as part of the permit review 

8 The notice of proposed rulemaking issued on May 29, 1987 would add 

requirements for leak detection systems in most disposal facilities. 

9 A rule issued on March 19, 1987 allows interim status facility owners 

or operators to remove all contaminants from treatment, storage or disposal 

facilities and avoid post-closure requirements. The rule provides interim 

status facilities the same opportunity that already exists for permitted 

facilities. 

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process.10 

40 CFR §264.117 states that monitoring, maintenance, and reporting 

requirements established for surface impoundments, waste piles, land treatment 

facilities, and landfills must continue for 30 years following closure. The Regional 

Administrator may extend or reduce the length of the period based on cause. 40 CFR 

§264.118 requires the preparation of a written post-closure plan describing planned 

monitoring and maintenance activities.11 

Subpart I -- Use and Management of Containers (40 CFR §§264.170-264.178) 

Requirements for facilities that store containers of hazardous wastes are 

provided in 40 CFR Part 264 Subpart I. The major requirements are that the owner or 

operator must: (1) maintain containers in good condition; (2) inspect container 

storage areas at least weekly; (3) provide a sloped, crack-free base for all areas 

storing containers that contain free liquids; (4) refrain from placing incompatible 

wastes in the same container, and place walls or dikes between containers holding 

wastes incompatible with other nearby materials; (5) remove all wastes and residues 

from containment systems upon closure; and (6) locate only containers holding 

ignitable or reactive waste at least fifty feet from the property line. 

Subpart J -- Tanks (40 CFR §§264.190-264.200) 

40 CFR Part 264 Subpart J outlines design and management standards for tanks 

containing hazardous wastes. 

On July 14, 1986, EPA promulgated regulations amending the Subpart J 

requirements.12 The regulations address tank design, installation, and operating 

standards and can be summarized as follows: 

" The owner or operator must obtain a written assessment the structural 

integrity and acceptability of existing tanks systems and designs for now 

tank systems, reviewed by an independent, qualified, registered 

professional engineer. 

" All new tank systems would be required to be enclosed in a full secondary 

containment system that would encompass the body of the 

10 A recent proposed rule (52 FR 35838) establishes procedures under which owners 

and operators may amend their written closure and post-closure plans. 

11 Post-closure procedure requirements for certain facilities that received 

wastesbetween 7/26/82 and 1/26/83 were issued (51 FR 16421) on May 2, 1986). The 

NPRM of May 29, 1987 would amend these requirements to make them consistent with the 

double-liner and leak detection systems. 

12 51 FR 25470, July 14, 1986. 

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tank and all ancillary equipment and be able to prevent any migration of 

wastes into the soil. This secondary containment system would be required 

to be equipped with a leak detection system capable of detecting releases 

within 24 hours of release. 

" Facilities with existing tank systems will be required to install 

secondary containment systems within specified times based on age and 

waste type. 

" Owners or operators may seek from the Regional Administrator both 

technology-based and risk-based variances from secondary containment 

requirements, based on either: (1) a demonstration of no migration of 

hazardous waste constituents beyond the zone of engineering control; or 

(2) a demonstration of no substantial present or potential hazard to 

human health and the environment. 

" Annua1 leak tests must be conducted on non-enterable underground tanks 

until such time as an adequate secondary containment system could be 

installed. Either an annual leak test or other type of adequate 

inspection must also be conducted on enterable types of tanks which do 

not have secondary containment. 

" Inspection requirements have been upgraded to include regular inspection 

of cathodic protection systems and daily inspection of entire tank 

systems for leaks, cracks, corrosion, and erosion that may lead to 

releases. 

" The owner or operator must remove a tank from which there has been a 

leak, spill or which is judged unfit to use. He then must determine the 

cause of the problem, remove all waste from the tank, contain visible 

releases, notify appropriate parties as required by other laws (i.e. 

CERCLA Reportable Quantity requirements), and certify the integrity of 

the tank before further use. 

" Closure requirements include removing waste, residues and contaminated 

liners, disposing of them as hazardous waste, and conforming with 

Subparts G and H (including post-closure of tank if necessary). 

" The owner or operator must also comply with general operating 

requirements and with special requirements for ignitable, reactive or 

incompatible wastes. 

EPA recently proposed a comprehensive rule (52 FR 12662, April 17, 1987) to 

regulate all underground storage tanks (USTs). It proposes standards for “design, 

construction, installation, release detection and compatibility” and applies them 

specifically to tanks storing either petroleum products or hazardous substances 

other than those regulated under Subtitle C of RCRA. These may, however, be relevant 

and appropriate to Subtitle C hazardous 

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wastes. 

Subpart K -- Surface Impoundments (40 CFR §§264.220-264.249) 

40 CFR Part 264 Subpart K establishes design and operating requirements for 

surface impoundments. The standards require that each new surface impoundment, each 

new surface impoundment at an existing facility, each replacement of an existing 

surface impoundment unit, and each lateral expansion of an existing surface 

impoundment unit must satisfy certain minimum technological requirements, including 

two or more liners and a leachate collection system between the liners. An 

alternative liner design may be approved if the Regional Administrator finds that 

operating practices and locational characteristics together prevent the migration of 

hazardous constituents into the ground water or surface water at least as 

effectively as the liners and leachate collection systems. Owners or operators must 

comply with ground-water monitoring requirements under 40 CFR Part 264 Subpart F, 

including corrective action, if needed. Impoundments must be removed from service if 

the liquid level suddenly drops or the dike leaks. 

RCRA §3005(j), as amended, requires the owner or operator of any surface 

impoundment that was in existence and operating under interim status on November 8, 

1984, to install two or more liners, a leachate collection system between the 

liners, and ground-water monitoring by November 8, 1988, (unless the impoundment 

qualifies for one of four exemptions set out in §3005(j)) or to cease placement, 

storage, or treatment of hazardous waste in the surface impoundment. 

RCRA also required EPA to issue standards mandating that new surface 

impoundment facilities use an approved leak detection system. EPA issued a notice of 

proposed rulemaking (NPRM) on May 29, 1987 that would allow a modified version of a 

leachate collection and removal system (LCRS) between double liners as an adequate 

leak detector. The NPRM also proposed changes in regulations for replacements and 

lateral extensions of existing surface impoundment facilities, response activities 

by owners and operators of facilities, and quality assurance requirements. 

At closure, an impoundment operated under Part 264 may be closed by removing 

and decontaminating all hazardous wastes, residues, liners and subsoils. If all 

hazardous wastes cannot be removed or decontaminated, then the facility must be 

capped and post-closure care provided. An owner or operator of an impoundment may 

also choose to close the impoundment as a disposal facility -- solidify all 

remaining wastes, cap the facility, and comply with Part 264 post-closure 

requirements. 

Subpart L -- Waste Piles (40 CFR §§264.25O-264.269) 

Subpart L requires that an owner or operator of a waste pile facility: (1) 

install a liner under each pile that prevents any migration of waste out of the pile 

into the adjacent subsurface soil or ground or surface water at 

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any time during the active life; (2) provide a leachate collection and removal 

system; (3) provide a run-on control system and a run-off management system; (4) 

comply with the Subpart F requirements; (5) inspect liners during construction and 

inspect the wastes at least weekly thereafter; and (6) close the facility by 

removing or decontaminating all wastes, residues, and contaminated subsoils (or 

comply with the closure and post-closure requirements applicable to landfills if 

removal or decontamination of all contaminated subsoils proves impossible). Existing 

piles are exempt from the liner and leachate collection system requirements but may 

be affected by the regulations proposed in the NPRM (May 29, 1987)13. 

Subpart M -- Land Treatment (40 CFR §§264.270-264.299) 

Subpart M requires that owners or operators of facilities that dispose of 

hazardous waste by land application: (1) establish a treatment program that 

demonstrates to the Regional Administrator's satisfaction that all hazardous 

constituents placed in the treatment zone will be degraded, transformed, or 

immobilized within that zone; (2) conduct a monitoring program to detect 

contaminants moving in the unsaturated zone (the subsurface above the water table); 

and (3) continue all operations during closure and post-closure to maximize the 

degradation, transformation, or immobilization of hazardous constituents.14 

Subpart N -- Landfills (40 CFR §§264.300-264.339) 

Subpart N requires owners or operators of new landfills, new landfills at an 

existing facility, replacements of existing landfill units, and lateral expansions 

of existing landfill units to satisfy the minimum technological requirements for two 

or more liners and a leachate collection system above and between the liners. In 

addition, the landfill must have run-on/run-off control systems and control wind 

dispersal of particulates as necessary; comply with the Subpart F ground-water 

protection requirements, close each cell of the landfill with a final cover, and 

institute specified post-closure monitoring and maintenance programs. In addition, 

40 CFR §264.314 and §265.314 ban the landfill disposal of bulk or non-containerized 

liquid hazardous waste. After November 8, 1985, non-hazardous liquids also are 

generally banned (for more information, see section “Hazardous Solid Waste 

Amendments - Land Ban”).15 

13 A NPRM (May 29, 1987, 52 FR 20218) would require double liners and a 

leachate collection and removal system for the unused portions of existing piles and 

for any lateral extensions of waste piles and leak detection. 

14 The NPRM would require owners and operators to establish a written response 

plan to handle any leaks detected at the facility. 

15 The NPRM would require leak detection systems and the development of a 

written response plan to any leaks that were detected. 

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Subpart O -- Incinerators (40 CFR §§264.340-264.999) 

Subpart O of Part 264 specifies design and operating requirements for any 

incinerator burning hazardous wastes. For incinerators that only burn wastes listed 

as hazardous solely by virtue of their ignitability, corrosivity, or reactivity, or 

some combination thereof, only the closure requirements and waste analyzes required 

prior to incineration are applicable. 40 CFR §264.343 specifies that all 

incinerators must be constructed and maintained so as to detoxify (by destruction or 

physical removal in air pollution control systems) at east 99.99 percent (or 99.9999 

percent for dioxin wastes) of each “principal organic hazardous constituent” in the 

input steam, and so as not to emit more than 180 milligrams of particulate matter 

per cubic meter of stack gas. HCL emissions are limited to 1.8 kg/hr or 1 percent of 

the HCL in stack gas before controls. 40 CFR §264.347 outlines the parameters the 

owner/operator must monitor during incinerator operation; 40 CFR §264.351 requires 

that all wastes, residues, ash, and effluents be removed from the incinerator site 

at closure and treated as hazardous wastes, if applicable. 

Hazardous Solid Waste Amendments - Land Ban 

On July 15, 1985, EPA codified into the existing RCRA Subtitle C regulations a 

set of provisions from the Hazardous and Solid Waste Amendments of 1984 (See 50 FR 

28742)(the “Codification Rule”). Although the provisions of the Codification Rule 

have been integrated into the previously discussed RCRA regulations, they are 

addressed separately here to highlight the new requiremients that the statute 

imposed. Those provisions likely to have a significant impact an the RCRA regulatory 

requirements that may be applicable or relevant and appropriate to CERCLA responses 

are discussed below. 

Ban of Liquids in Landfills. HSWA imposed a ban on the placement of bulk or 

non-containerized liquid hazardous waste or hazardous waste containing free liquids 

(whether or not absorbents have been added) in any landfill after May 8, 1985, 

unless it can be demonstrated that: 

(1) The only reasonably available alternative for these non-hazardous 

liquids is a landfill or unlined surface impoundment which already 

contains, or any reasonably be anticipated to contain, hazardous waste; 

and 

(2) The disposal of the non-hazardous liquids in the landfill will not 

present a risk of contamination to any underground source of drinking 

water. 

Other Land Ban Rules. EPA issued a rule in May, 1986 (effective June 28, 1986) 

and an amended rule in November, 1986 that is now codified in 40 CFR Part 268. The 

rule sets forth the first list of banned wastes that have not undergone the Best 

Demonstrated Available Technology (BDAT) and the schedule for EPA's review of other 

wastes that may be affected by the land ban. A 

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16 Regulations concerning minimum technology requirements were proposed on 

March 28, 1986 (51 FR 

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correction to Part 268 was finalized in June, 1987 (52 FR 21010), and a rule 

finalizing the restrictions on “California List” wastes (liquid hazardous wastes 

containing PCBs) and hazardous wastes containing HOCs was issued on July 7, 1987. 

Delisting Procedures. Prior to HSWA, delisting petitioners were required under 

40 CFR §260.22(a) to demonstrate to the satisfaction of the Administator at that the 

waste in question did not meet any of the criteria under which it was originally 

listed. Section 260.22 provided that a waste so excluded could still qualify as a 

hazardous waste if it failed any of the RCRA Subpart C characteristics 

(ignitability, reactivity, corrosivity, EP toxicity). The codification rule added to 

40 CFR §260.22(a) the requirements that, before excluding a waste: 

(1) The petitioner must demonstrate to the satisfaction of the Administrator 

that the waste produced by a particular generating facility does not 

meet any of the criteria under which the waste was listed as a hazardous 

or an acutely hazardous waste; and 

(2) Based on a complete application, the Administrator must determine, where 

he has a reasonable basis to believe that factors (including additional 

constituents) other than those for which the waste was listed could 

cause the waste to be a hazardous waste, that such factors do not 

warrant retaining the waste as a hazardous waste. A waste which is so 

excluded, however, still may be a hazardous waste by operation of 

Subpart C of Part 261. 

Minimum Technology Requirements. HSWA imposed minimum technological 

requirements that must be met by owners or operators of certain landfills and 

surface impoundments. Specifically, amended §3004 of RCRA stipulates that a permit 

for a new landfill or surface impoundment, a new landfill or surface impoundment at 

an existing facility, or a replacement or lateral expansions of an existing landfill 

or surface impoundment unit, must require the installation of two or more liners, a 

leachate collection system above (in the case of a landfill) and between the liners, 

and ground-water monitoring. The section provides an exemption from liner and 

leachate collection system standards if alternative design and operating practices, 

together with locational characteristics, will prevent the migration of hazardous 

constituents into the ground water or surface water at least as effectively as 

the liners and leachate collection system. Amended §3015 of RCRA establishes 

the applicabili of §3004 standards to interim status surface impoundments, 

landfills, and waste piles receiving wastes after May 8, 1985.16 

16 Regulations concerning minimum technology requirements were proposed on 

March 28, 1986 (51 FR 10706). Information about the effectiveness of double-liner 

and leachate collection systems, the subject of the minimum requirements, was 

published on April 17, 1987 (52 FR 12566). 

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Corrective Action and Cleanup Beyond Facility Boundary. RCRA §3004 was amended 

by HSWA to require corrective action for all releases of hazardous waste or 

constituents from any solid waste management unit at a facility seeking a RCRA 

permit, regardless of when waste was placed at the unit. RCRA §3004 also directs the 

Agency to promulgate regulations obligating owners and operators of treatment, 

storage, and disposal facilities to undertake corrective action beyond the facility 

boundary where necessary to protect human health and the environment, unless the 

owner or operator demonstrates to EPA that, despite his best efforts, he or she is 

unable to obtain the necessary permission to undertake such action. Until EPA 

promulgates the regulations which are currently being developed, implementation of 

this statutory provision shall proceed on a case-by-case basis through 

administrative orders.17 

Underground Injection. The HSWA added new §7010 to RCRA, banning the injection 

of hazardous wastes into or above any underground formation which contains, within 

one-quarter mile of the injection well, an underground source of drinking water. The 

ban applies to any state not having identical or more stringent prohibitions in 

effect under an applicable underground injection control program that has been 

approved or prescribed by EPA under the Safe Drinking Water Act. 

1.4 OTHER RCRA REGULATIONS 

The following additional RCRA regulations may be applicable or relevant and 

appropriate to CERCLA responses: 

Open Dump Criteria (40 CFR Part 257) 

In addition to the subparts of 40 CFR Part 264 described above, the open dump 

criteria of 40 CFR Part 257 are potentially applicable or relevant and appropriate 

to CERCLA responses. 40 CFR Part 257 establishes criteria for classifying solid 

waste disposal facilities to determine which pose a reasonable probability of 

adverse effects on human health and the environment. Facilities that fail to satisfy 

the criteria of the Part are classified as open dumps, which must be addressed by 

State solid waste management plans. 

Special Rules Concerning Dioxin 

40 CFR Part 261 provides that certain wastes containing tetra, penta, and 

hexaclorinated dioxins (CDDs) are acute hazardous wastes. Special requirements are 

set by §§264.175, 264.200, 264.231, 264.259, 264.283, 264.317, and 264.343 for the 

management standards concerning such wastes. These standards include special 

requirements for the management of the wastes in a storage, tank, surface 

impoundment, pile, land treatment unit, landfill, 

17 A rule on corrective action and cleanup beyond the facility boundary was 

proposed an March 28, 1986 (51 FR 10706). 

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or incinerator. EPA has also proposed a rule for the management of the residues 

resulting from the incineration or thermal treatment of such wastes.18 

2. OVERVIEW OF CLEAN WATER ACT AND THE WATER QUALITY ACT 

This section describes the Clean Water Act (CWA) of 1977, and the amendments 

to the act made by the Water Quality Act (WQA) of 1987. The section provides an 

overview of the CWA, noting its purpose, structure, and implementing regulations. 

The purpose is to provide an overview of the legislative requirements and the 

implementing regulations of each law that establish potentially applicable or 

relevant and appropriate requirements for CERCLA activities. 

2.1. OVERVIEW OF THE CWA 

The objective of the CWA is to restore and maintain the chemical, physical, 

and biological integrity of the nation's waters. The national goals established to 

achieve this objective of the CWA are 1) that the discharge of pollutants into 

waters of the U.S. be eliminated, and 2) that water quality that provides for the 

protection and propagation of fish, shellfish, and wildlife and provides for 

recreation in and on the water, be attained. The objective and goals of the CWA are 

to be achieved through the control of discharges of pollutants to surface waters. 

The CWA also involves the States (through the implementation of approved programs) 

in the objective to prevent, reduce, and eliminate the discharge of pollutants to 

surface waters. 

The CWA is organized into five major sections: 

" Title I - Research And Related Programs: Establishes grants and 

contracts for research, development, and training programs for water 

pollution control. 

" Title II - Grants for Construction of Treatment Works: Requires the 

development and implementation of waste treatment management plans 

and practices that will achieve the goals of the Act. Provides for 

the award of grants for the construction of wastewater treatment 

works. 

" Title III - Standards and Enforcement: Requires the establishment of 

criteria and standards for discharges to surface waters to protect 

water quality and achieve national performance standards. The 

authority to enforce these standards is also established. 

18 See 50 FR 37338, September 12, 1985. 

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" Title IV - Permits and Licenses: Requires the establishment of 

regulatory permitting programs to apply and enforce standards 

established under Title III of the Act. 

" Title V - General Provisions: Establishes provisions associated with 

the implementation of the requirements of the Act, including 

emergency powers, citizen suits, judicial review, employee 

protection, administrative procedures, Federal procurement, and State 

authority. 

The primary areas of interaction between CWA requirements and CERCLA responses 

occurs under Titles III and IV, where effluent standards and permits are required to 

be established and applied to discharges to the Nation’s waterways. The implementing 

regulations resulting from the requirements established under Titles III and IV of 

the CWA are contained throughout Title 40 of the Code of Federal Regulations. Due to 

the numerous parts of Title 40 published pursuant to the CWA, the following sections 

will summarize CWA requirements by major Sections contained in Titles III and IV. 

The major implementing regulations for these sections are also referenced. 

2.2 CWA REQUIREMENTS PERTAINING TO CERCLA DISCHARGES 

Section 301 - Effluent Limitations 

Section 301 of the CWA requires technology-based discharge limitations be 

established for categories and classes of point sources of pollutants. For 

conventional pollutants, Section 301 requires that effluent limitations be based 

upon the application of the best conventional pollutant control technology (BCT). 

For toxic and nonconventional pollutants, Section 301 requires that effluent 

limitations be based upon the application of the best available technology 

economically achievable (BAT). Pretreatment standards are applied to indirect 

discharges to publicly owned treatment works (POTWs). 

Section 302 - Water Quality Related Effluent Limitations 

Section 302 authorizes the establishment of more stringent effluent 

limitations (including alternative BAT effluent control strategies) to protect water 

quality if technology-based controls established under Section 301 would not assure 

protection of the intended uses of the receiving waters (e.g., public water supply, 

agricultural and industrial uses, and recreational uses). 

Section 303 - Water Quality Standards and Implementation Plans 

Section 303 of the CWA requires States to develop water quality standards that 

consist of a designated use or uses for the waters and water quality criteria for 

such waters to protect the use or uses. 

The 1987 amendments revise Section 303 of the CWA and requires States to adopt 

the Federal water quality criteria established for all toxic pollutants 

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pursuant to Section 304 if the discharge or presence of toxic pollutants could 

reasonably be expected to interfere with the designated uses adopted by the State. 

In the absence of numerical criteria, States are required to adopt criteria based 

upon biological monitoring or assessment methods consistent with those provided in 

Section 304 of the CWA as amended by the WQA. 

Section 304 - Information and Guidelines 

Under Section 304 of the CWA, EPA is required to develop and publish criteria, 

based upon latest scientific knowledge, to be utilized by States in developing water 

quality standards. Under Section 304, EPA is also required to develop and publish 

regulations establishing guidelines for the technology-based effluent limitations 

required in Section 301 of the CWA for categories and classes of point sources of 

pollutants.19 

Section 304 of the CWA, as amended in 1987, requires States to develop 

individual strategies to control toxic pollutant discharge into those waters where 

application of effluent limitations for point sources, required under Section 301, 

cannot reasonably attain or maintain applicable water quality standards or the 

designated use of the waters. In addition, EPA is required to develop and publish 

guidance on methods for establishing and measuring water quality criteria for toxic 

pollutants on other bases than pollutant-specific criteria, including biological 

monitoring and assessment. 

Section 306 - National Standards of Performance 

Section 306 requires EPA to propose and publish regulations establishing 

standards of performance for new source discharges. A new source is defined as a 

building, structure, facility, or installation from which there is a discharge, and 

the construction of which is started after the publication of proposed national 

standards of performance (developed pursuant to Section 306) applicable to the 

source. 

Section 307 - Toxic and Pretreatment Effluent Standards 

Section 307(a) establishes the list of toxic pollutants (commonly referred to 

as “priority pollutants”) subject to regulation pursuant to the CWA. 

Technology-based effluent limitations are developed for the priority pollutants for 

categories or classes of point sources. Section 307(b) requires EPA to develop and 

promulgate pretreatment standards for the discharge of pollutants into POTWs. 

Section 401 - Certification 

Any applicant for a Federal license or permit to conduct an operation which 

may result in any discharge to navigable waters is required to provide 

19 These effluent guidelines are provided in 40 CFR Parts 405-471. 

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the Federal permitting agency (e.g., the Army Corps of Engineers) a certification 

from the State in which the discharge originates (or EPA on a State’s behalf in 

certain circumstances). This certification must state that the discharge will comply 

with applicable provisions of Sections 301, 302, 303, 306, and 307 of the CWA. If 

the certifying authority does not act on a request for certification within the 

specified time, concurrence is deemed waived. 

Section 402 - National Pollutant Discharge Elimination System 

Section 402 of the CWA establishes the National Pollutant Discharge 

Elimination System (NPDES) program. All dischargers into navigable waters are 

required to obtain a NPDES permit, which incorporates the requirements of sections 

301, 302, 306, 307 and 403 of the CWA.20 Section 402 also establishes procedures for 

implementing the NPDES program, including requirements for authorizing 

State-operated permit programs. 

Section 403 - Ocean Discharge Criteria 

Section 403 requires EPA to develop and promulgate guidelines for determining 

the effects of discharges on the degradation of ocean waters. All discharges to 

oceans must comply with these guidelines prior to issuance of a permit under Section 

402 of the CWA. 

Section 404 - Permits for Dredged or Fill Material 

Section 404 establishes the requirements to obtain a permit for the discharge 

of dredged or fill material to navigable waters.21 All discharges of dredge and fill 

materials must undergo a public interest analysis to determine whether the benefits 

reasonably expected to result from the activity outweigh the reasonably foreseeable 

detriments. Section 404 also establishes the Secretary of the Army (through the Army 

Corps of Engineers) or delegated State the permitting authority, for 1987 CWA 

Amendments dredge and fill activities. 

1987 CWA Amendments 

The enactment of the WQA of 1987 provides amendments and additions to various 

sections of the CWA. Other significant amendments with potential application to 

CERCLA activities include: 

" Establishment of the National Estuary Program, 

20 40 CFR Parts 122-125 provide the implementing regulations for the 

NPDES program. 

21 40 CFR Part 230 and 33 CFR Parts 320 through 330 provide the 

implementing regulations for the Dredge and Fill Program. 

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the purposes and policies of which are to maintain and 

enhance the water quality in estuaries, considered to 

be of great national significance for fish and 

wildlife resources. 

" Clarification of the CWA’s prohibition of backsliding 

on effluent limitations. 

" Authorization for grants to States to implement 

nonpoint source management programs, including ground 

water quality protection activities. 

3. THE SAFE DRINKING WATER ACT 

This section describes the Safe Drinking Water Act (SDWA) of 1974, the most 

recent amendments to the SDWA made in 1986, and accompanying regulations. The 

first part of this section provides an overview of the SDWA, noting its purpose 

and structure. The second part of this section provides a summary of the 

regulatory requirements under the SDWA that are applicable to CERCLA activities. 

The purpose is to provide an overview of the legislative requirements and the 

implementing regulations of each law that establish potentially applicable or 

relevant and appropriate requirements for CERCLA activities. 

3.1 OVERVIEW OF THE SDWA 

The SDWA was enacted in 1974 in order to assure that all people served by 

public water systems would be provided with a supply of high quality water. 

The SDWA established a program to require compliance with national drinking 

water standards for contaminants that may have an adverse effect on public 

health. The SDWA also focused on the removal of contaminants found in water 

supplies as a preventive health measure and established programs intended to 

protect underground sources of drinking water from contamination. 

The SDWA amendments of 1986 established new procedures and deadlines for 

setting national primary drinking water standards, established a national 

monitoring program for unregulated contaminants, augmented the underground waste 

injection control requirements, and established a sole source aquifer 

demonstration program and a wellhead area protection program. 

The SDWA is structured in five parts: 

Part A - Definitions: Provides definitions of key terms used in the SDWA. 

Part A - Public Water Systems: Requires EPA to establish maximum 

contaminant level goals and promulgate national primary and secondary drinking 

water regulations. Part B also provides conditions for giving States the 

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primary responsibility for enforcement of standards, establishes prohibitions for 

use of lead in water supply systems, and provides terms for variances and 

exemptions from national primary drinking water regulations. 

Part C - Protection of Underground Sources of Drinking Water: Requires EPA 

to publish regulations for State underground injection control programs, for 

State programs to establish wellhead protection areas, and for development, 

implementation, and assessment of demonstration programs designed to protect 

critical areas located within areas designated an sole source aquifers. 

Part D - Emergency Powers: Empowers EPA to enforce SDWA regulations to 

protect human health upon failure of State and local authorities to do so. 

Part E - General Provisions: Establishes general provisions for the 

implementation of the SDWA including: assurance of adequate treatment chemicals, 

grants for State programs; records and inspection requirements; establishment of 

an advisory council; regulation of Federal agencies; judicial review; and 

citizens civil actions. 

3.2 SDWA REGULATIONS PERTAINING TO CERCLA ACTIVITIES 

The following summarizes the SDWA regulation’s that may be applicable or 

relevant and appropriate to CERCLA response actions. 

40 CFR Part 141 - National Interim Primary Drinking Water Regulations 

40 CFR Part 141 establishes primary drinking water regulations which are 

designed to protect human health from the potential adverse effects of drinking 

water contaminants. Both maximum contaminant levels (MCLs) and maximum 

contaminant level goals (MCLGs) for specific contaminants are provided. Whereas 

MCLs are enforceable standards, MCLGs are secondary standards, and as such are 

non-enforceable. 

As of July 1987, MCLs have been promulgated for 24 specific chemical (10 

inorganics and 14 organic pesticides), total trihalomethanes, certain 

radionuclides, and coliform bacteria. MCLGs have been promulgated for eight 

organic contaminants and for fluoride. The 1986 SDWA amendments require EPA to 

promulgate MCLs for 83 specific contaminants by June 1989. 

40 CFR Part 141 also establishes monitoring, reporting, and analytical 

requirements for public water systems. 

40 CFR Part 142 - National Primary Drinking Water Regulations 

Implementation 

40 CFR Part 142 sets forth the regulations for the implementation and 

enforcement of national primary drinking water standards. In particular, 

procedures are provided for variances and exemptions from compliance with 

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MCLs. These variances and exemptions apply to public water suppliers. The 

requirements for determining the primary enforcement responsibilities of a State 

are also provided. 

40 CFR Part 143 - National Secondary Drinking Water Regulations 

This part establishes National Secondary Drinking Water Regulations which 

consist of secondary maximum contaminant levels (SMCLs). SMCLs are set to 

regulate contaminants that may affect the aesthetic qualities of drinking water 

(e.g., color, odor); however, SMCLs are nonenforceable. There are 12 SMCLs 

promulgated. 

40 CFR Part 144 - Underground Injection Control Program 

40 CFR Part 144 provide requirements for Underground Injection Control 

(UIC) Programs and establishes the following classification of wells: 

Class I, wells that inject RCRA hazardous or other industrial or 

municipal waste beneath the lower most formation containing, within 

one-quatter (1/4) mile of the well bore, an underground drinking water 

source. An underground source of drinking water is defined as any 

aquifer or its portion that supplies a public water system or contains 

fever than 10,000 mg/l total dissolved solids. 

Class II, injection wells associated with oil and natural gas 

production, recovery, and storage. 

Class III, wells that inject fluids for use in extraction of minerals. 

Class IV, wells used to inject RCRA hazardous waste into or above a 

formation that within one-quarter (1/4) mile of the well, contains an 

underground drinking water source. The operation or construction of 

Class IV wells is prohibited, and allowed only where the wells are 

used to reinject treated ground water as part of a CERCLA cleanup or a 

RCRA corrective action. 

Class V, wells not considered to be Class I, II, III, or IV. 

Various subparts within Part 144 describe the general requirements for the 

operation of underground injection wells. These subparts are briefly described 

below: 

" Subpart B - General Program Requirements 

Subpart B provides the general requirements for underground injection 

wells including prohibitions of unauthorized injection, prohibition of movement 

of fluid into underground sources of drinking water, and requirements for the 

discharge of hazardous wastes. Injection into Class IV 

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wells is also prohibited except for the reinjection of contaminated groundwater 

that has been reinjected into the same formation from which it was drawn pursuant 

to CERCLA activities. 

" Subpart C - Authorization of Underground Injection by Rule 

Subpart C authorizes by rule the injection into existing wells for 

specified periods of time depending upon the class of well involved. Specific 

requirements for authorization by rule are also specified. 

" Subpart D - Authorization by Permit 

Subpart D establishes the authorizations necessary to permit 

underground injection activities. 

" Subpart E - Permit Conditions 

Subpart E provides the conditions which are applicable to all 

underground injection activities that require a permit, including corrective 

action requirements for the injection into Class I wells. 

40 CFR Part 146 - Underglound Injection Control Program: Criteria and 

Standards 

40 CFR Part 146 sets forth the technical criteria and standards for the UIC 

program. In particular Subpart B provides the criteria and standards applicable 

to Class I wells including construction, operating, monitoring and reporting 

requirements. No criteria and standards currently exist for Class IV wells, which 

are banned except in cleanups approved under CERCLA or RCRA. 

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DICTIONARY OF ACRONYMS USED IN MANUAL 

ACL - Alternate concentration Limits 

AOC - Area of Contamination

ARAR - Applicable or Relevant and Appropriate Requirement

BAT - Best Available Technology Economically Achievable

BCT - Best Conventional Pollutant Technology

BDAT - Best Demonstrated Available Treatment Technologies

BMP - Best Management Practices

BOD - Biochemical Oxygen Demand

BPJ - Best Professional Judgment

CAA - Clean Air Act

CAG - Carcinogen Assessment Group

CCWE - Constituent Concentration in Waste Extract

CERCLA - Comprehensive Environmental Response, Compensation and

Liability Act of 1980 (aka Superfund) 

COD - Chemical Oxygen Demand 

CPF - Carcinogen Potency Factors

CFR - Code of Federal Regulations

CWA - Clean Water Act

DSE - Domestic Sewage Exclusion

EDB - Ethylene Dibromide

EP - Extraction Procedure

EPA - Environmental Protection Agency

FR - Federal Register

FS - Feasibility Study

FWQC - Federal Water Quality Criteria

GLWQA - Great Lakes Water Quality Agreement

IRIS 

GWPS - Ground Water Protection Standard 

HEA - Health Affects Advisories 

HSWA - Hazardous and Solid Waste Amendments of 1984 

IU - Industrial User 

LC50 - Lowest Concentration that Will Kill 50 Percent of Test Organisms 

- Integrated Risk Information System 

LCRS - Leachate Collection and Removal System 

LDR - Land Disposal Restrictions 

LPC - Limiting Permissible Concentrations 

MCLs - Maximum Contaminant Levels (SDWA) 

NPDES 

MCLGs - Maximum Contaminant Level Goals 

MPRSA - Marine Protection Research and Sanctuaries Act 

NCP - National Contingency Plan 

NHPA - National Historic Preservation Act 

NOEL - No'd6serVable Effect"Level 

NPL - National Priorities List 

NPRM - Notice of Proposed Rulemaking 

NTIS - National Technical Information Service 

OGWP - Office of Ground-Water Protection 

OSC - On-Scene Coordinator 

OSW - Office of Solid Waste 

- National Pollutant Discharge Elimination System 

OSWER - Office of Solid Waste and Emergency Response 

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OWPE - Office of Waste Programs Enforcement

PCB - Polychlorinated Biphenyls

PCS - Permit Compliance System

POTW - Publicly-Owned Treatment Works

PRP - Potentially Responsible Party

RCRA - Resource Conservation and Recovery Act

RFD - Reference Dose

RI/FS - Remedial Investigation / Feasibility Study

RMCL - Recommended Maximum Contaminant Level (renamed MCLG)

ROD - Record of Decisions

RPM - Remedial Project Manager

SARA - Superfund Amendments and Reauthorization Act

SDWA - Safe Drinking Water Act

SI - Site Investigation

SIP - State Implementation Plan (CAA)

SITE - Superfund Innovative Technologies Evaluation

SMCLs - Secondary Maximum Containment Levels

SMOA - Superfund Memorandum of Agreement

SPHEM - Superfund Public Health Evaluation Manual

SSA - Sole Source Aquifer

SWMU - Solid Waste Management Unit

TBC - To Be Considered

TCE - Trichloroethylene

TDS - Total Dissolved Solids

TSS - Total Suspended Solids

UCR - Unit Carcinogenic Risk

UIC - Underground Injection Control

USDW - Underground Source of Drinking Water

WHP - Wellhead Protection Program

WQA - Water Quality Act

WQC - Water Quality Criteria

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