ARARs Frequently Asked Questions
Why comply with ARARs?
Section 121(d) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), requires attainment of federal and state applicable or relevant and appropriate requirements (ARARs). Subpart E, Section 300.400(g) "Identification of applicable or relevant and appropriate requirements," of the National Oil and Hazardous Substance Pollution Contingency Plan (NCP) (55 FR 8666) describes the process for attaining these ARAR requirements.
What difference does it make whether a requirement is "applicable" or "relevant and appropriate"?
"Applicable requirements mean those cleanup standards, standards of control, or other substantive environmental protection requirements, criteria, or limitations promulgated under Federal environmental or State environmental or facility siting law that specifically address a hazardous substance, pollutant, contaminant, remedial action, location, or other circumstance found at a CERCLA site" (55 FR 8814). Therefore, an applicable requirement is a requirement that a private party would have to comply with by law if the same action were being undertaken apart from CERCLA authority. all jurisdictional prerequisites of the requirement must be met in order for the requirement to be applicable.
If a requirement is not applicable, it still may be relevant and appropriate. "Relevant and appropriate requirements mean those cleanup standards [that] . . . address problems or situations sufficiently similar to those encountered at the CERCLA site that their use is well suited to the particular site" (55 FR 8817). A requirement that is relevant and appropriate may not meet one or more jurisdictional prerequisites for applicability but still make sense at the site, given the circumstances of the site and the release. In evaluating the relevance and appropriateness of a requirement, the eight comparison factors in 40 CFR 300.400(g)(2) should be carefully considered.
Once a requirement is relevant and appropriate, it must be complied with as if it were applicable. However, there are significant differences between the identification and analysis of the two types of requirements. "Applicability" is a legal and jurisdictional determination, while the determination of "relevant and appropriate" relies on professional judgment, considering environmental and technical factors at the site. Moreover, there is more flexibility when determining relevant and appropriate: a requirement may be "relevant," in that it covers situations similar to those at the site, but may not be "appropriate" and, therefore, may not be well suited to the
site. In some situations, only portions of a requirement or regulation may be judged relevant and appropriate; if a requirement is applicable, however, all substantive parts must be followed.
Are there different types of ARARs?
EPA classified (this is not a regulatory requirement) ARARs into three categories: (1) chemical-specific, (2) location-specific, and (3) action-specific, depending on whether the requirement is triggered by the presence or emission of a chemical, by a vulnerable or protected location, or by a particular action.
- Chemical-specific ARARs are typically health- or risk-based numerical values or methodologies which, when applied to site-specific conditions, are expressed as numerical values that represent cleanup standards (i.e., the acceptable concentration of a chemical at the site). Examples of chemical-specific ARARs include non-zero maximum contaminant level goals (MCLGs) and maximum contaminant levels (MCLs) established under the Safe Drinking Water Act, and federal water quality criteria (FWQC) established under the Clean Water Act. As a general rule, if more than one chemical-specific ARAR exists for a particular contaminant, the most stringent should be applied.
- Location-specific ARARs are restrictions on the concentration of hazardous substances or the conduct of activities in environmentally sensitive areas. An example of a location-specific restriction on the concentration of hazardous substances is the RCRA land disposal restrictions (LDR) prohibiting hazardous waste placement into or onto the land (e.g., landfills and salt domes) until waste-specific treatment standards are met. Examples of restrictions on the conduct of activities in environmentally sensitive areas include floodplains, wetlands, and locations where endangered species or historically significant cultural resources are present.
- Action-specific ARARs are usually technology- or activity-based requirements or limitations on actions or conditions taken with respect to specific hazardous substances. An example is the LDR requirement to recover mercury from high inorganic mercury nonwastewaters using roasting or retorting. Action-specific ARARs do not determine the remedial alternative; rather, they indicate how a selected alternative must be achieved. RCRA and the Clean Water Act provide the majority of action-specific ARARs.
Is there another category of requirements that should be consulted?
By definition, ARARs are promulgated, or legally enforceable federal and state requirements. EPA has also developed another category known as "to be considered" (TBCs), that includes nonpromulgated criteria, advisories, guidance, and proposed standards issued by federal or state governments. TBCs are not potential ARARs because they are neither promulgated nor enforceable. It may be necessary to consult TBCs to interpret ARARs, or to determine preliminary remediation goals when ARARs do not exist for particular contaminants. Identification and compliance with TBCs is not mandatory in the same way that it is for ARARs.
However, once a TBC is part of a Record of Decision (ROD), it becomes enforceable.
Do Department of Energy Orders constitute ARARs or TBCs?
DOE Orders are neither ARARs nor TBCs. DOE Orders themselves are not ARARs because they are not promulgated. However, in some cases DOE Orders may contain requirements promulgated by other federal agencies that could be potential ARARs, and these requirements should be identified through the ARARs identification process. Some regulators may choose to refer to DOE Orders as "TBCs." However, DOE personnel should not regard DOE Orders as simply "to be considered information." DOE and DOE contractors must comply with these Orders at DOE facilities. DOE Orders are legally binding because of contractual arrangements between DOE and its contractors. Finally, DOE Orders in final RODs are enforceable under CERCLA and cannot be waived using DOE procedures for waiving Orders.
What constitutes ARAR "on-site" and "off-site" actions?
CERCLA defines on-site as "the areal extent of contamination and all suitable areas in very close proximity to the contamination necessary for implementation of the response action" (55 FR 8817). Noncontiguous facilities also may be viewed as on-site based on a case-by-case analysis of whether facilities are related by threat posed or geography (55 FR 8690). Also, DOE Orders are not affected by the ARAR on-site/off-site policy. DOE and DOE contractors must comply with DOE Orders at their facilities.
On-site and off-site CERCLA response actions differ in two significant ways. First, ARAR provisions apply only to on-site actions; off-site actions must comply with any laws and regulations that legally apply to that action. Also, ARAR waivers are not available for any requirements that regulate off-site actions.
Additionally, on-site CERCLA actions must comply only with the substantive portions of a given ARAR; on-site activities need not comply with administrative requirements, such as obtaining a permit or recordkeeping and reporting. (Monitoring requirements are considered substantive requirements.) In contrast, off-site actions must comply with both substantive and administrative requirements of all applicable laws. [Note: ARARs are the requirements of environmental and facility siting laws only. Independent of ARARs, on-site activities also must comply with requirements of non-environmental laws including building codes and safety requirements such as Occupational Safety and Health Administration (OSHA) requirements]
Is compliance with ARARs required for a "no action" decision?
No. CERCLA Section 121, "Cleanup Standards," applies only to remedial actions that the Agency determines should be taken under CERCLA Sections 104 and 106 authority. A "no action" decision typically constitutes a "no further action" decision, which can only be made when no further response action (remedial or removal) is necessary to reduce, control, or mitigate exposure because the site or a portion of the site is already protective of human health and the environment. See "Guidance on Preparing Superfund Decision Documents" (OSWER Directive 9355.3-02) for discussion of "no action" decisions.
Are environmental resource laws, such as the Endangered Species Act, the National Historic Preservation Act, and the Wild and Scenic Rivers Act, potential ARARs for CERCLA actions?
Yes, requirements in these laws are potential ARARs. These laws frequently require consultation with, and under some laws, concurrence of, other Agencies or groups, such as the Fish and Wildlife Service or the Advisory Council on Historic Preservation. Consultation is a substantive requirement in many cultural resource statutes, such as the American Indian Religious Freedom Act, Archaeological Resources Protection Act, and the Native American Graves Protection and Repatriation Act. For example, the determination of whether a site is sacred to Native Americans can only be determined by consultation. Therefore, whenever practicable, consultation should be conducted before implementing an on-site response action to avoid or minimize impacts on cultural resources.
Are environmental standards and requirements of Indian tribes potential ARARs?
Yes. Indian Tribal requirements are potential ARARs for CERCLA response actions taken on Tribal lands and are treated consistently with state requirements provided they meet the eligibility criteria for state ARARs [i.e., the requirements are promulgated (legally enforceable and of general applicability), are more stringent than federal requirements, and are identified in a timely manner]. [See the preamble to the NCP (55 FR 8741-8742); Section 300.5 of the NCP (55 FR 8816) for a definition of "Indian tribe;" and the "Revised Interim Final Guidance on Indian Involvement in the Superfund Program," OSWER Directive 9375.5-02A, November 28, 1989.]