Congress wrote the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) to promote the cleanup of abandoned or uncontrolled hazardous waste sites. Congress also provided CERCLA with a list of hazardous substances to be addressed under the statute.
But one thing Congress did not do in CERCLA was identify—or direct the EPA to identify—uniform cleanup standards or specific management standards for these substances. Instead, Congress stated that CERCLA cleanups must be protective of human health and the environment and that the remedial actions be “relevant and appropriate” to the circumstances. Subsequently, the EPA interpreted these general directions by establishing its CERCLA applicable or relevant and appropriate requirements (ARARs). This phrase has been the source of confusion since it contains two related but different types of standards.
Other laws
The concept behind ARARs is that the agencies responsible for a CERCLA remediation will look outside CERCLA to other federal or state environmental laws (including laws implemented by federal agencies other than the EPA) to establish site cleanup standards. The standards contained in those laws may be either applicable to the site or they may be 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 relevant and appropriate.
Applicable
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.
Applicability is a legal and jurisdictional determination. For example, closure requirements under RCRA Subtitle C are applicable at a landfill that received RCRA hazardous waste after 1980 or where the action constitutes disposal of hazardous waste. In this case, the site must be closed in compliance with one of the closure options available in Subtitle C regulations.
Relevant and appropriate
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.
In contrast to the legal determination for applicability, relevance and appropriateness rely on the professional judgment of the individual performing the analysis utilizing information pertinent to the specific site. A requirement that is relevant and appropriate may not meet one or more of the jurisdictional prerequisites for applicability, but it still may make sense to apply it given the circumstances of the site and the nature of the release.
While legally applicable requirements must be attained, compliance with relevant and appropriate requirements is based on the discretion of the remedial project manager, on-scene coordinator, or state official responsible for planning the response action. Also in contrast to applicable requirements, which are universally applicable, relevant and appropriate requirements affect only on-site response activities.
Two-step process
A determination that a requirement is relevant and appropriate is conducted in two steps, one for relevance and one for appropriateness.
A requirement may be relevant in that it covers situations similar to those at the site. Relevant requirements are those cleanup standards, standards of control, or other substantive environmental provisions that do not directly and fully address site conditions, but address similar situations or problems to those encountered at a Superfund site. Continuing the RCRA example above, RCRA landfill design standards could be relevant to a landfill used at a Superfund site if the wastes being disposed of were similar to RCRA hazardous wastes.
Whether a requirement is appropriate (in addition to being relevant) will vary depending on factors such as the duration of the response action, the form or concentration of the chemicals present, the nature of the release, and the availability of other standards that more directly match the circumstances at the site. In some cases, only a portion of the requirement may be relevant and appropriate. When the site 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.
EPA guidance documents on ARAR