&EPA
United States
Environmental Protection
Agency
Office of Emergency and
Remedial Response
(52O1G)
EPA/540-R-98-012
OSWER 9375.3-03P
PB98-963221
March 1998
Superfund
Plan to Enhance the Role of
States and Tribes in the
Superfund Program
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To Obtain Documents:
EPA employees can obtain additional copies of this guidance, or copies of documents referenced
in this guidance, by calling the Superfund Document Center at 703-603-9232, or by sending an e-
mail request to superfund.documentcenter@epamail.gov. Non-EPA employees can obtain these
documents by contacting the National Technical Information Service at 703-487-4650. This
document is also available on the Internet at http://www.epa.gov/superfund.
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Notice
This document does not represent final agency action, but is intended solely as guidance. It is not
intended, nor can it be relied upon, to create any rights enforceable by any party in litigation with
the United States. EPA officials may decide to follow the policies discussed in this document, or
to act at variance with such policies, based on an analysis of specific site circumstances. The
Agency also reserves the right to change this document at any time without public notice.
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ACKNOWLEDGMENTS
The Office of Emergency and Remedial Response acknowledges and thanks the individuals who
contributed to the development of this plan. Each recommendation results from discussions and analysis
by each workgroup, the coordination of the Leadership Integration Team, and the guidance of the State
and Tribal Superfund Management Council. Please see the membership list in Appendix E for the names
of the people who contributed to this plan.
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Table of Contents
Plan to Enhance the Role of States and Tribes in the Superfund Program: Executive
Summary
I. Introduction Es"1
II. Background ES'1
III. State/Tribal Enhanced Role Initiative: Concept and Assumptions ES-2
IV. Establishing an Integrated Framework ES-5
V. Shaping the Initiative: SMC Leadership ES-6
VI. Recommendation Highlights ES-8
Readiness Highlights ES-9
Assistance Highlights ES-9
Agreements Highlights ES-10
Tribal Highlights ES-11
VII. Cross-Cutting Issues Associated with this Initiative ES-11
VIII. Key Next Steps for EPA ES-12
Introduction
Despription of the Integrated Process Intro -1
Workgroup Chapter Recommendations Intro - 3
Chapter 1: Readiness Recommendations
I. Introduction R"1
A. Workgroup Membership R-1
B. Recommendation R-1
II. General Themes for Process of Determining Readiness R-2
III. Framework for Readiness Approach Developed by Consensus R-3
IV. Additional Issues R-4
V. Generic Program Components R-5
VI. Common Activities to Determine Capability R-6
A. Access to Resources R-6
1. Trained Personnel R-6
2. Analytical Services R-7
B. Public Access to Non-Enforcement Sensitive Documents R-7
C. Community Involvement R-8
D. Health and Safety R-8
E. Coordination With Other Agencies R-8
F. Budgetary, Accounting, Procurement, Cost Recovery, and Tracking
Systems R-8
G. Site Access and Information Gathering R-8
H. Site Records R-9
I. Site Closeout R'9
VII. Conclusion R-9
Chapter 2: Assistance Recommendations
I. Summary AS"1
II. Introduction AS-1
III. Technical Assistance AS-2
A. Training AS-2
TOC-1
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Assessment and Delivery of State Training Needs AS-2
Program Assistance AS-2
B. State and Tribal Access to Federal Resources AS-3
Expert Assistance AS-3
Contract Lab Program and Other Labs AS-3
Use of BoR and USAGE AS-3
Access to and Compatibility with U.S. EPA and Other Databases, and
Additional Sources of Information AS-3
Enforcement Assistance AS-4
Contracts AS-4
Frequently Used Equipment, and Specialized or Infrequently Used
Equipment AS-4
C. Research AS-5
IV. Funding '.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'. AS-5
A. Current Cooperative Agreement Process AS-6
Statutory and Regulatory Framework AS-6
Advice of Allowance Process AS-6
Accounting AS-7
Adjustments AS-8
Reporting and Accountability AS-8
Allocating Remedial Action Funding AS-8
B. Cooperative Agreement Pilots AS-9
Integrating the Core Program CA into an Existing MSCA AS-9
Obligating CAs Generically and Disbursing CAs Site- Specifically AS-9
Funding CAs Incrementally for Three Years AS-10
Obligating and Disbursing CAs Generically (not implemented) AS-10
C. Flexible Federal Involvement and Oversight AS-10
D. Distribution of Funding AS-11
V. Recommendations AS-12
A. Two-Phase Program .^ AS-12
B. Block Funding within Superfund AS-12
C. Modify Priority Panel [ [ AS-13
Chapter 3: Agreements Recommendations
I. Introduction AG-1
II. Model Agreement Analysis AG-2
A. Background Section AG-2
B. Program Authorities Section AG-3
C. Roles and Responsibilities Section AG-3
D. Program Elements or Components Section AG-3
E. Protective Cleanup Section AG-4
F. Community Involvement Section AG-4
G. Program Planning and Review Section AG-4
H. Dispute Resolution Section AG-4
I. Funding Section AG-5
J. Terms of the Agreement Section AG-5
K. Signature of Agreement Section AG-5
L. Appendices (if appropriate) AG-5
TOC-2
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Superfund Agreement between U.S. EPA and the State of __ or
Tribe AG'6
I. Background AG-6
II. Program Authorities - AG-6
III. Roles and Responsibilities AG-6
IV. Program Elements or Components AG-7
V. Protective Cleanup AG-8
VI. Community Involvement AG-8
VII. Program Planning and Review AG-8
VIII. Dispute Resolution AG-9
IX. Funding AG-9
X. Terms of the Agreement AG-9
XI. Signature of Agreement AG-10
XII. Appendices (if appropriate) AG-10
Chapter 4: Tribal Recommendations
I. Introduction T~1
II. Readiness T"1
III. Assistance to Tribes "T-2
A. Funding T'2
B. Training T-2
C. Administrative/Infrastructure T'3
Regulatory Capability T~3
Program Management Capability T-4
D. Technical T-4
Site Identification, Screening, and Prioritization T-4
Short-term Actions T~6
Long-term Actions T-7
Superfund Amendments and Reauthorization Act
(SARA) Title III
IV. Agreements T'9
A. Understanding Tribal Governments - T-9
B. Inter-agency Coordination T-10
V. Tribal Workgroup's Four Priority Recommendations T-10
VI. Summary of Recommendations T-11
VII. Conclusion T"13
Appendix A. Readiness Modules App. A-1
Appendix B. OSWER Training Database and Videotape Inventory/ National
Enforcement Training Institute Training Courses App. B-1
Appendix C. Basic Superfund Curriculum App. C-1
Appendix D. SMC Issue Discussion Summaries App. D-1
Appendix E. Membership List App. E-1
TOC-3
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Plan to Enhance the Role of the States
and Tribes in the Superfund Program:
Executive Summary
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I. introduction
This document presents EPA's recommendations for enhancing the roles of states and federally-
recognized Indian tribes in implementing the Superfund program. The agency collaborated with states
and tribes in working sessions, during which the parties developed "consensus-based" recommendations
for final approval by upper-level EPA, state, and tribal managers. EPA acknowledges that state and
tribal support for recommendations in this report is based on the Superfund statute. This effort is
separate from that of Superfund reauthorization, and state or tribal participation in the development of
this report does not represent an endorsement of any particular reauthorization position.1
Through this document, EPA proposes an integrated process for implementing the
recommendations to enhance state and tribal roles, and suggests ways the process could begin under a
national pilot program. This document is for state, tribal, and EPA regional audiences, and it identifies
steps that EPA could take to build stronger partnerships with states and tribes. As this plan and its
recommendations will apply to all sites within the Superfund program, including federal facilities, it
will interest other parties.
II. Background
Over the past 15 years, many states have developed Superfund program capabilities and now
implement their own hazardous waste cleanup programs. Many tribes have also begun developing
capabilities in this area. EPA has encouraged and supported this development with both technical and
financial resources, and plans to continue this trend toward an enhanced role for states and tribes in
hazardous waste cleanups. The Administrator places a high priority on state and tribal empowerment, as
demonstrated by the National Environmental Performance Partnership System (NEPPS), which calls for
"States to serve as the primary front-line delivery agent." Superfund's administrative reforms further
illustrate the agency's commitment to improve state and tribal involvement in the Superfund program.
In November 1996, EPA's Assistant Administrators for the Office of Solid Waste and
Emergency Response (OSWER) and the Office of Enforcement and Compliance Assurance (OECA)
issued a policy message commissioning work to identify and analyze major issues associated with
enhancing the role of states and tribes in Superfund. They stressed the importance for EPA, with states
and tribes, to work through the issues of state and tribal readiness, assistance to states and tribes, EPA-
state or EPA-tribal partnership agreements, and unique considerations for enhancing tribal participation.
1 State participants in the State and Tribal Superfund Management Council (SMC) and workgroups support
the premise that the state role in Superfund should be enhanced. State participants view this report's
recommendations as facilitating an appropriate division of labor for assisting states and regions in developing
workable models for an increased state role in the Superfund program, under current law. While these
recommendations may be applicable to a reauthorized Superfund statute, states wish to reserve judgment until
reauthorization is a fact. Comments and recommendations in this report, therefore, should not be viewed as
contradictory to state opinions expressed on reauthorization.
Please send comments to Konz.James@epamail.epa.gov or call (703) 603-8841, or send comments to
Wright.Felicia@epamail.epa.gov or call (703) 603-8775
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The statement asked for recommendations on ways EPA can work to further build "strong partnerships"
between the federal government and states and tribes.2
Hi. State and Tribal Enhanced Role Initiative: Concept and
Assumptions
The purpose of the State and Tribal Enhanced Role Initiative is to develop a comprehensive plan
that EPA can implement to equitably share Superfund program responsibilities with interested and
capable states and tribes, to enable quicker cleanup of more sites. EPA is evaluating the Superfund
program to integrate new ideas into the comprehensive plan and build upon state and tribal partnerships.
EPA intends for this plan to promote flexibility in the management of contaminated sites consistent with
the overall goal of protecting human health and the environment.
This report recognizes that the role of states and tribes in the Superfund program has grown
measurably during the past decade, and advocates a comprehensive national approach to defining
program management roles. The recommendations manifest an evolving federal role that will continue
to be delineated as EPA moves to enhance program cooperation with states and tribes, while
maintaining a continued role in program implementation, enforcement, and response activities.
This report consists of four chapters containing the assumptions, objectives, and
recommendations from participants in EPA's State and Tribal Enhanced Role Initiative. These chapters
form the framework for a process that EPA will utilize to increase the state and tribal roles as co-
implementors of the Superfund program. The chapters address the key steps and provide general themes
for how the process is envisioned to work. For example, the decision-making process for states and
tribes to take on responsibilities under the Superfund program should include an "enforcement first"
approach and public involvement. In addition, a shared role should be negotiated between the EPA
region and the state and tribe, including provisions for dispute resolution. It was agreed that disputes
should be resolved whenever possible between the states or tribes and region through escalation to
senior officials. The dispute resolution process cited in the Code of Federal Regulations will be used
when agreement cannot be reached through the informal process. EPA will fully develop a formal
implementation plan as part of a pilot initiative this fiscal year.
* Policy Message, November, 1996.
Please send comments to Konz.James@epamail.epa.gov or call (703) 603-8841, or send comments to
Wright.Felicia@epamail.epa.gov or call (703) 603-8775
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The basic framework for implementing the State and Tribal Enhanced Role Initiative is
illustrated in the box below.
Framework for the State and Tribal Enhanced Role Initiative
Communication: EPA should hold general discussions with state and tribal Superfund program
managers to explore their interest in an enhanced role in the Superfund program.
Readiness: When a state or a tribe expresses interest in an enhanced role in the Superfund
program, EPA and the state or tribe should meet to discuss the full range of program activities
that it would like to implement. The EPA region works with the state or tribe to identify the
program criteria by which to evaluate the state or tribal program, and works with that state or
tribe to gauge the level of readiness to assume program responsibilities. (See Chapter 1:
Readiness Recommendations.)
Assistance: The state or tribe and region should identify and discuss the technical and financial
assistance needed for the state or tribe to perform the negotiated activities. Assistance needs are
identified for activities the state or tribe can begin conducting in the near term (i.e., when the
state or tribe meets the readiness criteria), as well as activities that the state or tribe hopes to
implement in the long term (i.e., developing capacity to meet the readiness criteria in specific
program areas). (See Chapter 2: Assistance Recommendations.)
Agreements: The region and state or tribe should negotiate and sign a program agreement to
formally establish and document their roles and responsibilities in an enhanced partnership to
implement Superfund. (See Chapter 3: Agreements Recommendations)
Tribal Programs: EPA has learned that there are different concerns and priorities when
working with Indian tribes rather than states. Ways to address these differences will be
incorporated into the implementation process to ensure that tribes, as well as states, are fully
involved in developing and implementing Superfund programs. (See Chapter 4: Tribal
Recommendations.)
Please send comments to Konz.James@epamail.epa.gov or call (703) 603-8841, or send comments to
Wright.Felicia@epamail.epa.gov or call (703) 603-8775
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To provide additional context to the State and Tribal Enhanced Role Initiative, participants in
this effort agreed to the principles highlighted below.
Principles To Promote Equal Participation
Both states and tribes [i.e., tribes meeting requirements of the National Oil and Hazardous
Substances Contingency Plan (NCP) 40 CFR §300.515(b)] are eligible to participate in the
enhanced role initiative.
No assumptions are made on the exact form or nature of the future Superfund program.
EPA regions will promote/assist states and tribes to ensure equal and open participation by all
states and tribes that desire enhanced participation in the Superfund program.
It is assumed that federal funding will be available to implement the initiative.
Principles To Promote Equal Protection
f States and tribes may be more stringent than, but must at least meet, the minimum performance
standard for each element of the federal cleanup program that they are implementing (e.g., state
or tribal program actions must be as protective as those conducted under the Federal program).
4 Cleanups conducted or overseen by a state or tribe using federal funds must be carried out in
accordance with the applicable federal laws and regulations.
+ The federal program will retain its legal authorities and independence of action, but will not
generally exercise them on state-lead or tribal-lead sites (and not without full prior consultation),
unless a state or tribe has failed to meet its responsibilities, and there is an unaddressed threat to
human health and/or the environment.
+ States, tribes, and regions are responsible for maintaining the spirit of EPA's "enforcement first"
policy in implementing Superfund program activities.
Please send comments to Konz.James@epamail.epa.gov or call (703) 603-8841, or send comments to
Wright.Felicia@epamail.epa.gov or call (703) 603-8775
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Principles To Promote Program Consistency and Flexibility
The balance between flexibility and consistency was an issue much discussed by EPA, state, and tribal
representatives. The issue is complex and not easily captured in a simple statement. Some key points
of the discussion are:
4 The framework of the national Superfund program is laid out not only in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the National
Contingency Plan (NCP), but also in EPA policy and guidance;
+ EPA, states, and tribes want flexibility to respond to diverse situations, site complexities, and
community concerns;
4 . EPA, states, and tribes see consistency as important to assuring a level playing field among
states, tribes, potentially responsible parties (PRPs), and communities; and
+ Achieving the program goals is important, especially in the following areas: level of
protectiveness; enforcement equity; diligence of enforcement (especially before going to fund-
lead cleanups and cost recovery); public involvement; and cost-effectiveness of remedies.
IV. Establishing an Integrated Framework
The State and Tribal Enhanced Role Initiative was structured to ensure that resulting
deliberations and recommendations are comprehensive and fully integrated into a balanced strategy
that capitalizes on state, tribal and EPA perspectives.
The State, Tribal and Site Identification Center in EPA's Office of Emergency and Remedial
Response (OERR) led this initiative by organizing the work into four key implementation steps that
define a process to increase state and tribal roles in Superfund. EPA formed four workgroups to
assess the issues associated with each step: the Readiness Workgroup to develop clearly stated
performance standards and a flexible process to assess state and tribal readiness and identify means to
enhance readiness; the Assistance Workgroup to identify technical, financial, administrative and legal
assistance needs of states and tribes, and ways to provide for that assistance; the Agreements
Workgroup to develop a model for agreements between EPA Regions and states or tribes with
flexibility to meet the variety of agreement needs; and the Tribal Workgroup to identify the special
needs of tribes in building capacity for program implementation, assistance and addressing cultural
values. The workgroups included members of several offices at EPA Headquarters, seven EPA
regional offices, twelve states and five tribes and tribal consortia.
In addition to the four workgroup topic areas, EPA formed a sub-workgroup to research and
address enforcement-related issues that cut across workgroup domains (see related discussion in the
Readiness and the Assistance Highlights sections and the Cross-Cutting Issues section of this
summary). The Enforcement Sub-workgroup began meeting in" the fall of 1997, and was composed of
representatives from states, EPA Headquarters and regions, and the Department of Justice.
Please send comments to Konz.James@epamail.epa.gov or call (703) 603-8841, or send comments to
Wright.Felicia@epamail.epa.gov or call (703) 603-8775
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At the outset, EPA also formed a team, largely composed of EPA Headquarters program staff,
to coordinate among the four workgroups, and between the workgroups and senior managers (see
State and Tribal Superfund Management Council below). The Leadership Integration Team, or LIT,
manages process-oriented activities, including project planning and scheduling, communicating the
issues and products among workgroups and senior management, and addressing and resolving
overlapping or cross-cutting issues. The LIT is composed of the team leaders of the four workgroups,
and representatives from the OERR (the Superfund Program Office), OECA, OSWER and EPA
Regional staff, as well as a representative from the Association of State and Territorial Solid Waste
Management Officials (ASTSWMO).
In coordinating the products of this initiative, the LIT interacts regularly with the State and
Tribal Superfund Management Council (SMC). The main reason for creating the SMC was to provide
early and ongoing senior manager input to this initiative from EPA Headquarters, EPA regions, states
and tribes. Through periodic conference calls and meetings, the SMC has been able to review and
comment on workgroup/LIT deliberations throughout the entire process.
V. Shaping the initiative: SMC Leadership
The SMC provided key leadership to the State and Tribal Enhanced Role Initiative. Its
membership provided a balance of EPA, state, and tribal perspectives, and included senior managers
with detailed knowledge of response, enforcement, legal and administrative/managerial aspects of
Superfund. Workgroup leaders were able to benefit from the perspective of senior managers as they
guided the activities of their workgroups.
The SMC met four times and held many'conference calls concurrent with the workgroup
process. At the initial meeting in November 1996, the SMC identified its primary interests and initial
guidance for the initiative. Members briefly discussed the planning context (current v. future law), the
initiative's scope, how to gauge a state's or tribe's readiness, and the importance of providing
flexibility to meet the broad range of state and tribal interests and capabilities. The SMC asked the
LIT to summarize its recommendations on these issues for their consideration at a subsequent SMC
meeting.
During a full-day SMC meeting in January 1997, the SMC considered the LIT's
recommendations and provided clear, substantive input on these and other central issues. Following
this meeting, the SMC reached consensus on the issues noted on the following page.
Please send comments to Konz.James@epamail.epa.gov or call (703) 603-8841, or send comments to
Wright.Felicia@epamail.epa.gov or call (703) 603-8775
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Consensus Issues
Planning Context: The generation of ideas under this initiative should not be constrained by
current law, nor should any specific statutory changes be anticipated. Rather, workgroups should
work with open minds toward the best practical solutions.
Flexibility: Recommendations should provide sufficient flexibility to work for the broad range
of interests and capabilities of state and tribal Superfund programs.
Standard Elements: It is useful to communicate a set of base program elements that are
important to success in Superfund, but these elements should have the flexibility noted above.
Federal Involvement: Members agreed that federal involvement would be greater for the
highest-risk sites, and that involvement should decrease as states and tribes demonstrate
capability.
£
Retained EPA Role: The SMC recognized the importance of EPA response and enforcement
action to the success of state and tribal programs. In particular, the SMC opposed limits to the
number of sites that could be listed on the National Priorities List (NPL); noted the importance of
a threat of EPA enforcement to the states' or tribes' success in securing PRP response work; and
acknowledged that EPA should retain its enforcement discretion in the case of Fund-financed
response actions.
Other issues were discussed for which a range of opinions were held within the group. Among
the non-consensus items are those in the following box.
Non-Consensus Issues
Federal Interest Sites: Some EPA workgroup members believed the universe of sites that
should be covered by EPA-state and EPA-tribal partnerships encompassed all high-risk sites,
generally consistent with a Hazard Ranking System (HRS) score that would qualify the site for
the NPL. Some State members viewed federal interest sites as a more narrow universe, generally
restricted to NPL sites and sites where EPA performs a removal action.
Federal Enforcement: Some EPA workgroup members believed that EPA should retain an
ability to take enforcement action at state-lead sites in appropriate circumstances. State members
believed state-lead sites should not be subject to federal enforcement, except in extremely limited
cases of seriously unaddressed risks.
Please send comments to Konz.James@epamail.epa.gov or call (703) 603-8841, or send comments to
Wright.Felicia@epamail.epa.gov or call (703) 603-8775
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The SMC discussions early in the workgroup process provided essential executive input to this
initiative for both the consensus and non-consensus areas. Two SMC members summarized the SMC
guidance and opinions for all workgroup members during the first consolidated workgroup meeting in
February 1997.
The Council's third meeting was held in early May of 1997. SMC members provided input on
preliminary recommendations presented by the four workgroup leaders. In addition, the SMC was
briefed on critical considerations for enhancing the tribal role in Superfund by one of its tribal
members from the St. Regis Mohawk Tribe, and discussed the connections between enforcement
activities and funding decisions. A final SMC meeting in November of 1997 allowed for their review
of final workgroup recommendations and provided a forum to resolve issues of concern to Council
members.
VI. Recommendation Highlights
,Relation of Recommendations to Superfund Reauthorization: This initiative began at a time
when EPA was also exploring approaches for a reauthorized Superfund program. The SMC and EPA
management directed that the State and Tribal Enhanced Role Initiative should be an effort separate
from reauthorization, allowing the workgroups to explore any type of change they felt necessary or
appropriate to enhance state and tribal roles. While the workgroup recommendations represent
significant changes in how the program could be implemented, most recommendations are well within
EPA's current authority for implementing Superfund.3
Though it is a separate effort, the work conducted within the State and Tribal Enhanced Role
Initiative may serve as an opportunity to inform EPA and others on particular reauthorization issues.
On the other hand, Superfund reauthorization will require EPA to reevaluate recommendations in this
report in light of enacted statutory change.
Resource Implications: Some recommendations in this report will require significant
investments (such as technical and financial assistance to states and tribes). Workgroups did not
attempt to solve resource problems implicit in their recommendations. Participants believe that some
recommendations can be implemented with existing resources; some will depend upon new national
resource investment/ disinvestment decisions, and some may be implemented by EPA regions with
resource shifts at that level. EPA will consult with states and tribes at both national and regional
levels about these resource decisions.
Flexibility Can Enhance Efficiency: All workgroups called for a flexible approach to address
individual state and tribal needs as part of their recommendations. Consistent with SMC's instruction,
workgroup members believe that program flexibility supports the goal of cleaning up sites to achieve
the level of protection currently required under the federal Superfund program. By working with
3 Pilots will be implemented according to applicable federal laws and regulations. EPA does not intend for
regions to implement recommendations which cannot be carried out under existing statutory authorities during this
pilot phase.
Please send comments to Konz.James@epamail.epa.gov or call (703) 603-8841, or send comments to
Wright.Felicia@epamail.epa.gov or call (703) 603-8775
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states and tribes to identify and clarify their respective roles within the program, EPA can provide the
support to ensure successful program implementation. Participants in this effort believe that with a
new approach to the partnership, resources may be more efficiently directed towards greater program
effectiveness. For example, current working relationships among EPA, states and tribes can include a
significant overlap in roles, with no single entity having sufficient resources to address all
contaminated sites. EPA believes that developing a comprehensive implementation framework is a
significant step in the direction of a more efficient program.4
Readiness Highlights
The Readiness Workgroup recognizes that all states and tribes have different ranges of expertise,
experience, and ability to implement activities at sites under Superfund and that EPA regions have
different working relationships with different states and tribes. In order to provide states and tribes a
baseline against which to measure their program capability, the Workgroup developed performance-
based criteria that define implementation "readiness." These criteria establish (1) the best way to
identify readiness of a state or tribe to assume responsibilities for implementing the Superfund
program, and (2) resources and capabilities that a state or tribe should have in place to demonstrate
"readiness." The workgroup framed consistent "results-oriented" standards around which states and
tribes can develop their programs and assess their level of readiness.
These minimum standards are written in generic form so that they can be applied under the
current program, or in any future scenario. To ensure that the full scope of the Superfund program is
characterized, the Readiness Workgroup developed the criteria within four broad areas. These areas
were identified as the major elements of a cleanup program: site identification, screening, and
prioritization; expedited actions; long-term actions; and post-cleanup site monitoring and evaluation.
The Workgroup also linked certain activities, among the readiness criteria of activities that would
work best together. The Workgroup recommends that programs follow the "criteria grouping"
guidelines to ensure overall effective program implementation.
Consistent with the guiding principles for this initiative, the Readiness Workgroup agreed that
states and tribes should adhere to the spirit of the enforcement fairness reforms and policies, even
without consensus on the issue of whether the states should have to implement the reforms in the same
manner as EPA. The Workgroup's recommendations are more fully discussed in Chapter 1: Readiness
Recommendations of this report.
Assistance Highlights
The Assistance Workgroup proposes to use multiple tools to address a two-part program of
technical assistance and financial funding/assistance.
4 It is envisioned that there generally will be a single "lead regulator" for each site that would be determined
by the region and state or tribe.
Please send comments to Konz.James@epamail.epa.gov or call (703) 603-8841, or send comments to
Wright.Felicia@epamail.epa.gov or call (703) 603-8775
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The principal technical assistance recommendations are that EPA: formally assess, on an
ongoing annual basis, the technical needs of state and tribal Superfund programs; meet those needs to
the best of its ability through training and access to federal personnel, contracts, or equipment; and
provide a periodic report to Congress on the technical needs of state and tribal programs and federal
resources required to meet those needs. Some resources to implement training and technical assistance
are currently available. Future resources needed to provide for technical assistance and training may
require investment/divestment. Superfund research and development activities should continue to be
conducted by EPA, with transfer of those technologies to the states and tribes.
One of the report's principal recommendations is to give states and tribes greater flexibility in
implementing the various Superfund program components. To that end, greater or lesser involvement
in implementation may be accomplished by varying the type and scope of assistance agreement offered,
depending on the extent-of state or tribal readiness, the combination of program elements requested by
the state or tribe, and the need for EPA involvement in implementation. Possible changes to provisions
of the Superfund Administration Regulation, "Cooperative Agreements and Superfund State Contracts
for Superfund Response Actions," 40 CFR Part 35 Subpart O, are being examined for assistance
agreements issues. A related recommendation is to streamline and consolidate the budget and reporting
requirements prescribed by Subpart O. Options for advancing these recommendations can be found in
the body of this report.
The Enforcement Sub-workgroup recommends using a variation of the current National
Prioritization Panel in awarding cooperative agreements for Fund-financed construction. This
approach can ensure the "enforcement first" policy is maintained in implementing response actions.
Currently, the panel prioritizes the following activities: remedial action starts; non-time critical
removal actions at NPL sites; removal actions with costs above a region's base budget; and
enforcement fairness initiative projects. As the states and tribes take on larger roles in the Superfund
program, newly created EPA regional panels could provide states and tribes with direct involvement in
the priority-setting process. The National Prioritization Panel will continue to make final (cross-
Regional) priority decisions. The Workgroup's recommendations are more fully discussed in Chapter
2: Assistance Recommendations of this report.
Agreements Highlights
The principal recommendation from the Agreements Workgroup is for states, tribes and EPA
to follow a proposed model agreement that documents the relationship between EPA and a state or
tribe. This model agreement would define the type of relationship EPA and the state or tribe plan to
develop, based on the most efficient way to clean up sites in the state or Indian country, and the
capabilities and interests of the state or tribe. In particular, the Workgroup thought it essential to
clearly define the roles and responsibilities of the various parties and the types of sites to be included.
The Workgroup envisioned the agreement to be broad; if site-specific details were needed, they would
be provided in sub-agreements. The Workgroup did not recommend a particular duration for the
agreement, because it will vary depending on how much responsibility is initially provided to
individual states and tribes in any agreement. However, the agreement does provide that if a
significant statutory program or funding change affects the state's, tribe's, or EPA's ability to carry out
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the agreement, then it should be brought to the attention of all parties to decide the
implications/consequences to the agreement.
The primary benefit from this recommendation is that the agreement would formally assign
responsibilities to either EPA or the state or tribe, thereby reducing duplication of effort among
participants, with a single agency having primary responsibility for the particular activity or group of
activities. Chapter 3: Agreement Recommendations contains the model agreement and further
discussion of the recommendation.
Tribal Highlights
Although each workgroup operated under the assumption that its recommendations would apply
to states and tribes equally, EPA and the SMC recognized that there are unique considerations to
address in the recommendations with respect to Tribes. To ensure that tribal concerns are
appropriately represented within the implementation plan, the Tribal Workgroup conducted the special
task of evaluating each workgroup's recommendations as to their applicability to tribes. Tribal
Workgroup recommendations are directed at issue areas assigned to other workgroups, with a specific
focus on tribal needs. The Workgroup developed a total of 29 detailed recommendations, organized
into four broad priorities that EPA could implement to increase the tribal role in Superfund:
4 Increase funding for tribal Superfund programs and allocate it separately from state funding;
+ Develop tribal-specific Superfund training and increase training efforts;
4 Explore ways to better incorporate tribal cultural values into the Superfund program; and
4 Advocate inter-agency coordination among agencies with environmental Federal Trust
responsibilities.
These priority recommendations indicate that tribes are in the early stages of developing
capacity, if they are involved at all, in the Superfund program. As tribes develop their environmental
programs, they need mechanisms to address unique tribal needs and priorities that are different from
those EPA has experienced in working with states. Chapter 4: Tribal Recommendations contains all
Tribal Workgroup recommendations and accompanying discussion summaries. It acknowledges that
increased tribal funding should not come at the expense of state funding, and proposes means to
address any issues of site jurisdiction that may arise between states and tribes.
VII. Cross-Cutting Issues Associated With This Initiative
EPA identified several important issues that span more than one workgroup and affect
implementation of the enhanced role initiative. In particular, issues regarding enforcement/funding
arose within a broad context, and were investigated by the Enforcement Sub-workgroup identified
previously. These issues extended well beyond the State and Tribal Enhanced Role Initiative, but are
integral to implementation of workgroup recommendations. These issues are important, because in the
absence of a major Congressional funding increase, it is essential that the current balance of
enforcement-lead cleanups (approximately 75%) continue.
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The most significant enforcement issues relate to increasing state management of federal funds
and enforcement policy initiatives. A major question was how EPA's "enforcement first" policy
should continue under state program direction.5 Participants agreed that states and regions should
adhere to the spirit of the fairness reforms and policies (e.g., de micromis settlements, municipal
liability), because of the great importance placed upon them by the federal government and Superfund
program stakeholders. Participants also agree, however, that states and tribes should have flexibility in
implementing the reforms.
The SMC discussed the issue of jurisdiction over sites that impact tribes. Two types of sites
were considered: (1) sites located partly or wholly within the boundaries of a federally-recognized
Indian tribe/Native Village; and (2) sites located immediately adjacent to Indian lands or those with a
clear and significant impact on tribal lands or resources (e.g., fisheries).6 The SMC agreed that states
should not be able to take lead responsibility for the first group of sites (within the boundary of Indian
lands). If tribes have the interest and readiness to take the lead for site response, they may do so. If the
tribe does not have this interest/readiness, EPA would maintain lead responsibility to ensure that the
federal government is living up to its responsibilities. State members urged EPA to ensure that states
are provided an opportunity to be involved in sites on tribal lands that impact non-tribal
lands/resources.
For the second group of sites (those adjacent to or impacting Indian lands or resources), the SMC
agreed that it would be important to consider whether the tribe's interests could be addressed if the
state has the lead for site response. If the result of advance discussions among EPA, the state, and the
tribe were that tribal interests could be fairly incorporated under a state lead, then the state could
assume lead for these sites. If there remained significant concern that tribal interests may not be fairly
addressed, then EPA would maintain the lead responsibility for these sites.
VIII. Key Next Steps for EPA
Recommendations outlined in this plan are steps that EPA will implement to comprehensively
enhance the role of states and tribes in Superfund's implementation. The agency is investigating
opportunities to pilot-test the overall process. (EPA believes that the readiness, assistance, and
agreements recommendations should be implemented as an integrated process.) The components of
this initiative (i.e., the workgroup products) are inter-dependent and constitute a unified approach to
meet the goal of enhancing the state and tribal implementation role in Superfund.
5 Many states have voluntary cleanup programs through which private parties conduct site cleanups that
preserve constrained public resources. These programs can contribute to Superfund's enforcement-first and
polluter-pay principles.
EPA should seriously investigate ways to look at ways to encourage states and tribes to better cooperate
among themselves on Superfund and other important environmental issues. As tribal environmental program
capacity increases, opportunities for cooperation among tribes and states will proliferate.
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Starting in FY98, EPA will begin work to develop a comprehensive implementation plan for the
enhanced role process and will conduct a national pilot of this process. Each region is to "field-test"
the integrated process with one state and one tribe (except Region ffl, which has no federally-
recognized Indian tribes). The selection of the state and tribe (or, more than one, if a given region is
willing and has several states and tribes interested in pursuing an enhanced role) is at the region's
discretion. Piloting the process on a small scale in each region will give EPA program-wide experience
with an enhanced state and tribal role which can be incorporated into the final implementation plan.
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Introduction
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Preface
The following chapters present the workgroup products developed under the State and Tribal
Enhanced Role Initiative. These chapters form the basis of an integrated approach for EPA to increase the
state and tribal role as co-implementors of the Superfund program. The LIT has sketched out an
implementation process, using ideas developed by the workgroups, which will be used to pilot the
initative. The process, depicted in Figure 1 on the next page, is envisioned to be highly interactive and
iterative. The success of this process will be directly linked to the quality of interactions and negotiations
between EPA and the states and tribes to reach agreement on their implementation roles.
Description of Integrated Process
As illustrated in Figure 1, the proposed integrated process can be generalized into three basic
steps. Each step involves a greater level of effort as implied by the number of actions influencing the
process. The steps are depicted in a linear progression towards full implementation of an enhanced role:
4 First, EPA communicates the opportunities and begins to pilot recommendations to enhance the
state and tribal role. This first step is initiated with the issuance of this plan.
4 The second step is initiated by the state or tribe who expresses interest to EPA for a greater
implementation role. The state or tribal program interest is then tentatively defined within an
"initial consultation process" with EPA. During the initial consultation process, EPA and the
state or tribe work together to correlate initial interests with applicable readiness criteria, and
informally gauge current readiness and assistance needs. Initial program interests may change,
depending upon the needs and capabilities identified.
4 The third step begins when the state or tribe .has decided upon and clarified its Superfund program
goals with respect to near-term management and long-term capacity building for its Superfund
program. At this point, EPA would initiate an interactive "agreement process" to negotiate a
final EPA-state or EPA-tribal agreement. The process consists of a detailed readiness assessment,
detailed negotiations for technical and financial assistance, and the development of a new program
agreement formalizing the enhanced state and tribal role. Over time, changes to the agreement
may be necessary based on changing program needs and priorities, resource availability, and
performance. EPA views this as an "ongoing revision process" that ties back into, and re-
initiates, the "agreement process" for development of an amended agreement.
The four bolded ellipses in Figure 1 represent another important concept. These components are
emphasized as key actions critical to achieving implementation. For example, the enhancement process
cannot proceed if EPA does not communicate the enhanced role opportunity, and states and tribes do not
express interest in an enhanced role in the Superfund program. Further, the process should enable states
and tribes to begin conducting Superfund activities they are capable of now, and develop their capabilities
over time in other program areas in which they are interested.
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Figure 1: Generalized Implementation Process
Enhanced State and Tribal Role
Initial
Consultation |
I Process
1-2 Months
Initial
Agreement
Process
4-6 Months
Ongoing
Revision
Process
Every 1-2 Years
For Formal
Assessment
EWvtdenHfles
Applicable Readiness
Crtterta
State/Tribe
Summarizes
Reodness a Assistance
Needs
Change in
Sfatei/Tiibal
Program Interest
EPA and State/Mbe
Negotiate Assistance
K". (fech & finance)
EFA Reviews
Program Results
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Finally, in viewing the last step to achieving full implementation the negotiated agreement it is
important to note that this endpoint is not fixed, since ongoing changes in program implementation may
warrant periodic amendments to the agreement.
Workgroup Chapter Recommendations
Each workgroup chapter explains the objectives of the workgroup and provides detailed
recommendations to meet the objectives. Each workgroup developed its own strategy for presenting the
recommendations that would be most effective for meeting the objectives of its workgroup. In each case,
the workgroup may provide some general direction on process, but most of the emphasis is placed on the
activities or products that could facilitate an enhanced role for states and tribes in Superfund, based on
workgroup objectives. Consequently, the recommendations take many forms, whether they are a set of
standardized program criteria, a list of program enhancements, or a comprehensive model.
The workgroups avoid the use of specific Superfund program terminology in their
recommendations, when possible, to ensure that the basic ideas for enhancing state and tribal roles do not
become immediately obsolete if program terminology changes as a result of Superfund reauthorization.
To be consistent, all workgroups attempted to use the same "generic" terms, where applicable.
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Chapter 1
Readiness Recommendations
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I. Introduction
The purpose of this chapter is to describe both the process and the capabilities needed for
transferring responsibility for elements of the Superfund program from EPA to states and tribes. The
Readiness Workgroup (Workgroup) is one of the four workgroups tasked with planning for an enhanced
state and tribal role in the Superfund program. State and tribal readiness, for the purposes of this report,
means the ability to implement an effective Superfund program (or elements of the program). The
members of the Readiness Workgroup developed a mission statement, which is
"To develop flexible performance standards and a process to assess state and tribal readiness and
identify means or needs to enhance readiness. The performance standards should be clearly
stated, and the process should be flexible."
This chapter contains some general themes for establishing a process to define a baseline
measure for an effective Superfund program. States and tribes and EPA can use the Modules in
Appendix A to assess their programs and, by so doing, decide which capabilities are well established and
which need to be more fully developed over time to reach a level that will ensure effective program
implementation.
NOTE: Cleanup programs, in this case the Superfund program, are multi-faceted and consist of a
variety of program activities. In order to organize all of this material, the Workgroup divided the
program activities into "Modules." Each Module consists of activities for different parts/aspects of
the program. The Modules are organized according to the different stages of a cleanup program and
will assist in assuring effective program implementation. All twelve Modules are located in Appendix
A.
A. Workgroup Membership
The Workgroup consists of representatives from Ohio, Massachusetts, the U.S. Army Corps of
Engineers (USAGE), North Carolina, Missouri, EPA Region 5 (Regional Counsel's Office), EPA Region
7 Superfund Division, and EPA Headquarters (Office of Emergency and Remedial Response (OERR),
Federal Facilities Restoration and Reuse Office, Office of Site Remediation Enforcement, and Office of
General Counsel).
B. Recommendation
The Workgroup recommends that the process for assessing State and Tribal readiness laid out in
this chapter be implemented on a pilot basis. The Modules can be used to determine current State and
Tribal readiness and areas needing development. When a State or Tribe seeks to assume responsibility
for the entire Superfund program or a part of the program, then that State or Tribe should demonstrate
capability and authority to carry out all of the activities in each Module. However, it is possible for a
State or Tribe to work out an arrangement with the Region to divide work, so long as all of the activities
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in each Module are addressed. The State or Tribe and Region have a shared responsibility to ensure that
all of the program activities are completed.
II. General Themes for Process for Determining Readiness
The Workgroup believes it is most valuable at this point to develop the general themes and
direction of the process for determining readiness. A detailed process should be developed during
implementation, so that Regions would have flexibility in how best to work with individual States and
Tribes. The themes outline general roles and responsibilities of States, Tribes, the public, Regions, and
EPA Headquarters. The Workgroup envisions that the State or Tribe would initiate the process by
communicating its interest in having a more enhanced role in the implementation of Superfund. This
would be followed by the Region and State or Tribe negotiating with each other to sign agreements that
designate the division of labor for specific program areas between the Federal and State or Tribal
governments. Where a State or Tribe takes on a portion of the program, the State or Tribe will work with
the appropriate Region to determine the most effective use of combined Federal and State or Tribal
resources, authorities, and capabilities.
The general themes include the following:
1. There should be appropriate public involvement in the decision-making process for each
individual State or Tribe to take on parts of the Superfund program (e.g., notice in
Federal Register, public comment period).
2. An explanation of how a State or Tribe meets the activities in each Module should be
submitted by the State or Tribe to begin negotiations with the Region. This process
should not be onerous, and should take into account a State's or Tribe's past record of its
Superfund activities and experiences (which could include related activities in other
programs, e.g., Resource Conservation Recovery Act (RCRA), Underground Storage
Tank (UST), and voluntary cleanup programs (VCPs)).
3. Where a State or Tribe takes on a portion of the program (e.g., a few Modules), the State
or Tribe will work with its Region to determine the most effective use of combined
Federal and State or Tribal resources, authorities and capabilities. As part of EPA and
the State or Tribe determining the use of combined Federal and State or Tribal resources,
authorities and capabilities, the State or Tribe and EPA should decide which entity will
be the "lead regulator" for each site. EPA should provide States and Tribes with
assistance to build capacity where needed (see Chapter 2: Assistance
Recommendations').
4. The Workgroup grouped the program activities in a logical manner in each Module to
assure effective program implementation.
5. Regions should be responsible primarily for working with the State or Tribe to assess
readiness for an enhanced role. Headquarters should play a support role when needed,
and ensure national consistency regarding enhancing the State and Tribal role.
6. There should be a dispute-resolution process. Appeals should start at the staff level
among Regions, States, and Tribes and should work their way up the chain of command.
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In dispute resolution, EPA Headquarters should be the final decision maker if the dispute
cannot be resolved at the Regional level consistent with 40 CFR 31.70 ("Disputes").
7. Regions should perform differential oversight of Superfund activities undertaken by each
State or Tribe (i,e., the level of oversight would vary based on, for example, the
complexity of the tasks to be undertaken and a State's or Tribe's experience. See #2
above). Differential oversight should be defined in the agreement that is negotiated
between the State or Tribe and Region (see Chapter 3: Agreements Recommendations).
8. Periodic reviews or some other mechanism should be in place to determine that readiness
criteria continue to be satisfied by a State or Tribe over time. This mechanism should
ensure that significant changes that affect the State's, Tribe's, or EPA's ability to carry
out the agreement are brought to the attention of the parties to the agreement to decide
what implications/consequences there are to the agreement.
III. Framework for Readiness Approach Developed by Consensus
The Workgroup reached consensus on the assumptions listed below to provide a context for the
activities in the Modules and the general themes for the process for determining readiness. All of the
assumptions are important in understanding the context of the activities listed in the Modules. The
assumptions include the following:
1. Program activities are generic because the content of any future law is unknown.
2. All Superfund elements are "on the table."
3. No assumptions are made as to the exact form (e.g., "flexible partnership," delegation or
authorization) the program would take.
4. Thoughts are limited to existing pipeline elements.
5. All States and Tribes are eligible, and at least one State or Tribe wants the program.
6. EPA Regions, States, and Tribes will cooperate.
7. There is a need for both long-term and short-term cleanup actions.
8. Federal funding is available. If a State or Tribe spends Federal funds, it must satisfy the
minimum criteria outlined by the then-effective Federal laws/regulations.
9. A national system exists to prioritize sites for cleanup that need/want Federal Superfund
dollars for Superfund activities.
10. There are no special assumptions made about Federal facilities.6
11. Cleanups conducted or overseen by the State or Tribe using Federal funds must be done
in accordance with the requirements of whatever the Federal laws/regulations provide at
the time and must not be less protective than whatever the Federal laws/regulations
provide at the time. If the State's or Tribe's liability standards are less stringent than the
Federal liability standards and requirements, EPA would take the lead on these portions
of the program.
6 There are a number of activities which cannot be performed by a State or Tribe for Federal facilities under
current statutory construction. Regions and States or Tribes will need to be cognizant of this when drafting the terms
and conditions of any agreement between Regions and States or Tribes.
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12. There is a Federal safety net; i.e., the Federal Government retains all of its legal
authorities, but would not generally exercise such authority on State- or Tribal-lead sites
(and not without full prior consultation), except when human health or the environment
is not being protected.
13. There is a minimum baseline performance standard for each element of the Federal
cleanup/enforcement program. States and Tribes may go beyond the minimum baseline.
14. The Readiness Modules should be considered by Regions, States, and Tribes when
entering into flexible work-sharing agreements. The Modules contain logically-grouped
activities. All activities within each Module must be covered. In attempting to
implement an effective Superfund program, States and Tribes should be aware that they
do not have to meet all of the activities listed in the Modules. It is assumed that for any
activities within a Module that the State or Tribe will not perform, a flexible work
arrangement will provide that the Federal Government will perform those activities.
IV. Additional Issues
The Workgroup reached consensus on all of the criteria, recommendations, and findings in this
chapter and Appendix A, except the issue regarding Federal principles of fairness and equity as stated
below. (Consensus was defined as what the Workgroup members "could live with.")
In identifying readiness criteria, the Workgroup considered whether adoption of the same or
similar Federal principles of fairness and equity should be required of the States and Tribes. EPA has
been criticized for inequitable and unfair settlements. During the last few years, to address stakeholder
concerns, EPA has placed great emphasis on the principles of fairness and equity within the Superfund
settlement context and has issued a number of policies to ensure effective implementation of these
principles. Currently, EPA settlements may be based on the PRPs' individual contributions to site
contamination and allow minor contributors and parties with limited financial resources the opportunity
for an "early out." EPA settlement policies that reflect these principles of fairness and equity include
policies regarding de minitnis and de micromis contributors, orphan share, and mixed funding.
The Workgroup believed it was important that States and Tribes at least make a statement with
respect to the principles of fairness and equity because of the great importance placed upon these
principles by the Federal Government and Superfund stakeholders. Further, the Workgroup believed
that States and Tribes should consider them when negotiating settlements. Options for tools that EPA,
States, and Tribes could use to make this type of statement include: (1) partnership agreements; (2)
Memoranda of Agreement; and (3) cooperative agreements. Workgroup members agreed that the mere
mention of the principles in public documents such as these would encourage compliance, as it would
allow aggrieved parties to publicly raise the issue. The type of vehicle used for stating that States and
Tribes should consider the principles of fairness and equity should be decided by the Region and State or
Tribe, so together they can determine the most appropriate option considering the specific circumstances.
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V. Generic Program Components
The Workgroup developed an outline of generic program components of a typical cleanup
program. These were developed so as to be able to fit under any Superfund scenario; i.e., the current
program or any future reauthorized Superfund program. These program components serve as a basis for
States, Tribes, and EPA Regions to develop agreements about how to transfer implementation
responsibility from EPA to the States and Tribes. These program components, and the specific activities
under them (i.e., the Modules), then become "readiness criteria." Li order for a State or Tribe to assume
responsibility for an entire program component (or some logical subset of activities under that
component; i.e., a Module), a State or Tribe should have the capability (including legal authority) to
carry out each activity. These activities are therefore both (1) a list of readiness criteria when the States
and Tribes seek to assume new responsibilities, and (2) a checklist of work activities for Regions and
States or Tribes to jointly manage. They are written using generic terminology, rather than Federal
Superfund terms, so applicable State and Tribal experiences can more readily be considered. These
program components follow below:
1. Site Identification, Screening, Prioritization
The purpose of this component is to ensure that States and Tribes can identify and
prioritize potentially contaminated sites to be addressed under CERCLA.
4 Identify sites.
f Screen sites.
4 Prioritize and evaluate sites for cleanup.
4 Prioritize and evaluate sites for Federal eligibility.
2. Short-term Action Activities
The purpose of this component is to ensure that States and Tribes have the ability to
conduct and compel expedited evaluations and expedited actions.
+ Conduct and compel urgent evaluations and cleanups.
* Conduct and compel expedited evaluations.
t Conduct and compel expedited cleanups.
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3. Long-Term Action Activities
The purpose of this component is to ensure that States and Tribes can fully characterize
and compel the characterization of sites, select a cleanup option and compel the selection of a
cleanup option, and conduct and compel implementation of a long-term cleanup.
+ Characterize, and compel the characterization of, sites for long-term cleanup actions.
* Identify, evaluate, select, and compel potential cleanup actions.
+ Design, implement, and compel site cleanups.
+ Have the ability to conduct and compel temporary and permanent relocations.
4. Post-Cleanup Site Monitoring and Evaluations
The purpose of this component is to ensure that States and Tribes can conduct operation
and maintenance and other site maintenance activities, ensure that the cleanups remain
protective, determine when/if a site is clean, and prepare necessary deletion documentation.
4 Conduct and compel post-cleanup monitoring and evaluations.
VI. Common Activities To Determine Capability
The Workgroup created a list of activities that are the foundation for an effective cleanup
program, and which apply to activities across the program. Regardless of what portion(s) of the program
the State or Tribe is interested in taking responsibility for, it should be able to implement the following
common activities, as appropriate. Unless otherwise indicated, each activity described may be funded by
EPA under the current statute, regulations, and program. CERCLA §104(d) authorizes EPA to enter into
cooperative agreements with States and Indian Tribes to carry out activities authorized by CERCLA
§104. 40 CFR Part 35, Subpart O codifies the requirements for Superfund Cooperative Agreements.
A. Access to Resources
1.
Trained Personnel: The State or Tribe should have the ability to train and/or access
trained personnel who are capable of fulfilling the particular tasks outlined in the chapter
and Modules. There should be a sufficient number of personnel commensurate with the
workload, and the State or Tribe should have the capability to ensure that future training
needs are met. The type of trained personnel (in-house or contract7) that will be
necessary include:
It is not appropriate for contractors to perform inherently governmental functions (e.g., making cleanup
and enforcement decisions and deciding on a State's priorities).
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(i) Personnel with appropriate health and safety certifications.
(ii) Government (e.g., USAGE, U.S. Bureau of Reclamation (BoR), the Agency for
Toxic Substances and Disease Registery, other State health departments, and other State
agencies) or contract personnel capable of conducting human health risk assessments,
ecological risk assessments, hydrogeological evaluations, chemical analysis, legal work
(e.g., legal analysis and litigation), community interaction, and engineering analysis.
(iii) Federal, State, or Tribal personnel capable of procuring, administering, and
monitoring contractors and site progress.8
(iv) Personnel capable of PRP searches, as appropriate, which entail such activities as
tying PRPs' liability to the site and financial analysis of PRPs.
(v) Personnel trained in conducting field activities in accordance with standard
operating procedures that the State or Tribe should have in place for conducting these
field activities.
2. Analytical Services: Based on the types and number of sample analyses that will be
needed, the data quality (level of data quality that data must meet), turnaround times, and
anticipated numbers of each type of analysis, the State or Tribe should be able to:
(i) Ensure that there is an agreementin place with a laboratory to provide these services.
(ii) Ensure laboratory certification or other mechanisms are in place to assure data
quality.
B. Public Access to Non-Enforcement Sensitive Documents
1. The State or Tribe should ensure that public documents generated under State or Tribal
implementation of the Superfund program will not be less accessible to the public than if
the program were Federally implemented.
2. The State or Tribe should have the authority to withhold from release confidential
documents (including enforcement sensitive, confidential business information,
deliberative) in accordance with whatever the Federal laws/regulations provide at the
time (e.g., 40 CFR Part 2, Subpart B). (Note: Many State Freedom of Information laws
are less stringent than the Federal Freedom of Information Act.) Public access to
documents and data may include electronic access.
' Ibid.
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C. Community Involvement
The State or Tribe should be able to ensure the appropriate level of community
involvement, depending on the activities being implemented.
D. Health and Safety
The State or Tribe should be able to ensure that appropriate health and safety
plans/measures are implemented, as necessary.
E. Coordination With Other Agencies
The State or Tribe should have the ability to ensure that cooperative work mechanisms
(e.g., letters, Interagency Agreements, Memoranda of Agreement, contracts) and support
from other Federal and State agencies can be obtained as necessary.
F. Budgetary, Accounting, Procurement, Cost Recovery, and Tracking
Systems
1. The State or Tribe should be able to provide the information needed to track site
activities and financial expenditures, as necessary, to support assistance agreement
obligations, cost-recovery actions, and other Federal reporting requirements.
Information may include investigation costs, oversight billing, etc., and should be
provided in an electronic format that is compatible with EPA data systems or can be
easily converted for use with EPA data systems.
2. The State or Tribe should be able to ensure that indirect and direct costs are documented
for ultimate purposes of cost recovery.
3. Based on the proposed work plan of activities to be conducted, the State or Tribe should
present an estimated budget and indicate a source of funding, including the Federal
dollars needed to implement the program. The State or Tribe should also have the ability
to obligate, allocate, and be accountable for (i.e., manage appropriately and responsibly)
funds to complete cleanup.
G. Site Access and Information Gathering
The State or Tribe should be able to secure site access and obtain site information.9
CERCLA §104(e)(1) authorizes any designated officer, employee, or representative of a State or Tribe
operating pursuant to a Superfund Cooperative Agreement to take action under §104(e)(2)(access to information),
(e)(3)(entry), (e)(4)(inspection and samples).
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H. Site Records
The State or Tribe should be able to ensure that decision-making processes are
documented by creating site records, ensuring site activities are tracked, and maintaining
comprehensive files describing rationale for site decisions. For short-term actions,
documentation would be done at an appropriate time based upon the nature of the site
condition.
I. Site Closeout
The State or Tribe should agree with EPA upon a procedure for determining when no
further Superfund action is required at any point in the Superfund process.
VII. Conclusion
EPA believes that it is important to assess State and Tribal readiness objectively, while taking
into account the wide variation of capabilities among States and Tribes. EPA also believes that a
flexible process is important for assessing readiness. The process and Modules in Appendix A allow for
effective implementation of the Superfund program with a larger role for States and Tribes. This process
will help to ensure consistent and objective decisions about enhancing the role of States and Tribes in the
Superfund program, both in the near term (current law) and in the longer term (potentially a reauthorized
Superfund law). Additionally, the process will help ensure strong management and administration of the
Superfund program as more activities are implemented by States and Tribes.
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Chapter 2: Assistance
Recommendations
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I. Summary
The Assistance to States Workgroup is composed of state representatives from New York, North
Carolina, Minnesota, Wisconsin, Ohio, Kansas, Illinois, and Michigan, as well as EPA staff from OERR,
the Office of General Counsel, the Office of Grants Debarment, Region 3, Region 5, and Region 8. This
chapter has been condensed from a more detailed report that represents the deliberations of the
Assistance to States Workgroup, and focuses mainly on recommendations contained in the master report
for providing technical and financial assistance to state and tribal Superfund programs.
In summary, this chapter recommends that EPA strategically plan and budget to provide
Superfund training and technical assistance to states and tribes to develop state and tribal capability to
respond to the release, or threat of release, of hazardous substances. Assessing readiness of individual
states and tribes to assume Superfund implementation will result in a shared understanding of the near-
term and longer-term program capabilities and expertise needed for implementation. Training and
technical assistance should be specifically tailored to the need for technical resources and training on the
part of individual states and tribes. This chapter further recommends that EPA formally assess, on an
ongoing annual basis, the technical needs of state Superfund programs, and that EPA meet those needs
through training and access to federal personnel, contracts, and equipment. Some resources are available
currently to implement additional technical assistance. In future years, disinvestments and reinvestments
may be needed to support training needs of states and tribes. Assistance Workgroup recommendations
comprehensively discuss ways this can be accomplished.
One of the principal recommendations in Chapter 2 is to give states and tribes greater flexibility in
implementing the various Superfund program components. To that end, greater or lesser involvement in
implementation may be accomplished by varying the type and scope of assistance agreement offered,
depending on the extent of state or tribal readiness, the combination of program elements requested by
the state or tribe, and the need for substantial EPA involvement in the implementation of the activity.
Possible changes to provisions of the Superfund administrative regulation, 40 CFR Part 35, Subpart O,
are being examined for assistance agreements issues. A related recommendation is to streamline and
consolidate the budget and reporting requirements prescribed by 40 CFR Part 35, Subpart O, the program
regulation governing "Cooperative Agreements and Superfund State Contracts for Superfund Response
Actions." Options for advancing these recommendations can be found in the body of this report.
II. Introduction
Chapter 2 presents technical assistance and funding recommendations to facilitate an increased
state and tribal role in Superfund. The technical assistance section of this chapter explores areas for
enhancement identified by state and EPA workgroup members. The funding section of this chapter
evaluates recommendations for enhancing state and tribal involvement in Superfund through more
flexible assistance agreements and improved administration of current agreements.
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III. Technical Assistance
Three areas that have been identified by the Assistance to States Workgroup as important
components of assistance to states and tribes are training, state and tribal access to federal resources, and
management and technological program enhancements.
A. Training
1, Assessment and Delivery of State Training Needs
More than 275 courses relating to Superfund are presently offered by EPA; these are listed in
Appendix B. Of these courses, 152 are contained in the OSWER Training Database and Videotape
Inventory, and 124 are contained in the National Enforcement Training Institute's (NETI) catalogue. In
addition, there are 312 videotapes available iiy the OSWER Training Database and Videotape Inventory
for training purposes. The Workgroup recommends that EPA regional offices, in coordination with state
and tribal partners, annually identify state and tribal training needs. EPA Headquarters would oversee
and coordinate the regional effort, to ensure that the training objectives are met; to report, as necessary,
on the technical needs of state and tribal programs; and to seek federal resources required to meet those
needs. A mechanism for recording needed Superfund training and assistance can be the implementing
agreement between EPA regions and the states and tribes, as described in Chapter 3: Agreement
Recommendations.
To deliver training resources, individual training could be offered within states to meet the needs
of state and tribal personnel hampered by travel restrictions. For those states and tribes not restricted by
travel limitations, it is recommended that the Superfund Academy concept, which is currently available
primarily to federal employees (as space permits, several courses are available currently to states and
tribes), be expanded to provide training for states and tribes. The Academy could offer "one-stop
shopping" for Superfund-related training. Li addition, courses presently offered by state universities and
colleges could be reviewed and "approved" by EPA, then used as training resources for states and tribes.
Training is also offered by other government agencies, such as the Department of Energy and USAGE.
Coordination among these agencies and EPA in evaluating and delivering Superfund training needs could
facilitate the overall federal ability to transfer federal experience and capabilities to states and tribes, and
promote more comprehensive Superfund training.
2. Program Assistance
States and tribes would like to access other sources of information through personnel and
resources at EPA. Examples of possible sources include the Management Assistance Review program
for review of state and tribal programs. Development of manuals similar to the Region 4 Environmental
Investigations Division's field sampling standard operating procedures manual could be applied across
all regions, which would help to promote consistency and identify accepted operating procedures that
could be adopted by states and tribes. This application could also assist in regular regional reporting
requirements.
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B. State and Tribal Access to Federal Resources
1. Expert Assistance
States and tribes have expressed a desire to more fully utilize federal resources to expand their
role in Superfund. Forming and providing state access to multi-disciplinary teams of technical and
scientific experts on either a regional or national basis is recommended to support state remediation
efforts. This concept is similar to the Environmental Response Team located in Edison, New Jersey,
which is available to mobilize for situations demanding specialized expertise. Multi-disciplinary teams
could be assembled from regional resources, on a regional basis, and be made available to assist on-site
where specialized expertise is needed by states and tribes, when states and tribes do not otherwise have
access to such resources, or they cannot cost-effectively maintain such resources. Access to teams for
more routine site issues could be accomplished via the Internet, through a published directory of
technical and scientific personnel with identified expertise for direct access, or through a chat
room/bulletin board. Availability to states and tribes of federal personnel with specialized expertise
through Inter-Agency Personnel Agreements (EPAs), or detail assignments, as well as EPA labs,
information databases, equipment pools, and contracts, could be more widely employed to maximize the
use of resources and benefits to states and tribes.
2. Contract Lab Program and Other Labs
Additional ability to utilize the Contract Lab Program (CLP) will become increasingly important
if the state and tribal role in Superfund is expanded. In addition, state and tribal ability to assess risks
posed by Superfund sites could be enhanced by providing additional state and tribal access to the U.S.
EPA Environmental Monitoring-System Laboratories in Ada, Oklahoma, Las Vegas, Nevada, and
Cincinnati, Ohio. A possible improvement in this area suggested by state workgroup participants is to
combine contracts so that one lab would be available to do more than one type of analysis under variable
turn-around time requirements. Near-term availability would be valuable in completing the hundreds of
projected remedial actions anticipated by the year 2000.
3. Use of BoR and USAGE
Many investigative, technical, and remediation services are available through USAGE and BoR.
An enhanced communications strategy to highlight the resources available through BoR and USAGE
could promote greater utilization of existing federal resources. A description of the services provided by,
or links to, USAGE and BoR, for example, could be added to the EPA home page. It is recommended
that states and tribes be invited to attend coordinating meetings between EPA, USAGE, and BoR to
promote meaningful involvement when federal services are requested.
4.' Access to and Compatibility with U.S. EPA and Other Databases, and Additional
Sources of Information
Superfund's information systems have evolved with the program's expansion over time, and
include CERCLIS (WasteLAN), the Grants Information Control System (GIGS), the Internal Financial
Management System (IFMS), and the Superfund Comprehensive Accomplishments Plan (SCAP). With
the implementation of WasteLAN, Superfund information will no longer be maintained across a diverse
network of regional and national systems and databases. Instead, WasteLAN enables Superfund staff to
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share comprehensive data across the program, across EPA and, eventually, with other federal partners
and the public. Currently, all EPA regions are performing data entry in WasteLAN. In addition, the
"One-Stop Shopping" program, which links WasteLAN and other Superfund databases together for easy
access by interested parties, is being implemented in thirteen states to facilitate the sharing of this
comprehensive data.
The Workgroup recommends that state access to WasteLAN be provided in the near term and that
training be offered on WasteLAN and other databases that are or will become available to states and
tribes. The Workgroup also recommends that additional strategies that increase state, tribal, and EPA
interconnectivity be identified, developed, and adopted. State participants in the Assistance to States
Workgroup have recommended that to generate and maintain an awareness of available databases, EPA
should create a continuously updated directory of information sources. This directory could have a broad
key word search capability that could include publications, databases, Internet home pages, bulletin
boards, and other electronic resources, as well as contacts and participants in workgroups and task forces
related to Superfund. It would be beneficial to include, on the EPA home page or on the individual EPA
regional home pages, a directory of technical experts in each region. The states and tribes would then
generally be able to access this information.
5. Enforcement Assistance
NETI offers many training courses on environmental enforcement for EPA, state, and tribal
personnel. States and tribes should continue to access these courses, which are offered in subject areas
such as criminal enforcement training, case support training, and international training. A complete list
of the courses offered by NETI is included in Appendix B.
6. Contracts
States have indicated a desire to have greater access to federal contracts, and they believe that
access to these federal contracts would be of greatest value during transition periods to greater state
involvement. Current EPA policy provides that state employees on an IPA to the EPA can be a Work
Assignment Manager (WAM). State employees who are not on an IPA cannot be a WAM, but can offer
advice and provide recommendations to EPA. It would appear that as long as the proper legal
relationship (i.e, IPA) is created, and the IPA personnel are trained and certified in federal contracts
management principles and practices, these personnel could be reassigned to the state to carry out the
work assignment, and states could thereby gain greater access to federal contracts. Guidance would need
to be developed to implement this practice.
7. Frequently Used Equipment, and Specialized or Infrequently Used Equipment
Many regions presently maintain some response equipment or equipment pools, but there is no
general policy and approach to more widely assuring the availability of equipment. Specific types of
equipment that are needed on a frequent basis could be purchased by the states and tribes through the
Core Program cooperative agreement as a way to outfit programs with necessary equipment.
Infrequently used equipment could be purchased by the region and maintained for loan, as needed.
Operational policies and procedures regarding equipment should be developed that would be
implemented in all regions for the purchase or loan of response equipment.
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C. Research
Superfund research and development should remain centralized and be conducted generally in the
present manner. The current centralized approach to technology development is considered by the
Workgroup to be the most effective and appropriate method. Centralized development and testing of
new technologies is generally viewed by the Workgroup as the most appropriate mechanism for fostering
broader application of these technologies in remediation. By continuing to test technologies, EPA will be
able to identify viable options and develop guidance so that technologies are utilized consistently
throughout the regions. EPA Headquarters will also be able to evaluate the cost effectiveness of the
technologies and pass these findings along to the regions, states, and tribes.
IV. Funding
The Federal Grant and Cooperative Agreement Act of 1977 governs the use of grants, cooperative
agreements (CAs), and contracts. Contracts are used for acquisition by purchase, lease, or barter of
property or services for the direct use of the federal government. Grants and CAs are used to transfer
money, property, services, or anything of value to the state, tribe, local government, or other recipient in
order to accomplish a public purpose of support authorized by federal statute.
The application and administration process is essentially the same for grants and CAs, and they
are governed by the same regulations; the difference is in implementation. A grant is used in cases where
no substantial involvement is anticipated between the Executive Agency and state, tribe, local
government, or other recipient during the contemplated activity. CAs are used in cases where substantial
involvement in implementation between the Executive Agency and recipient is deemed necessary.
The current mechanism for providing financial assistance in the Superfund program is the
Superfund Cooperative Agreement. Authority to enter into CAs is provided in Section 104 of CERCLA
and is regulated by 40 CFR Part 35, Subpart O ("Cooperative Agreements and Superfund State Contracts
for Superfund Response Actions"), Office of Management and Budget circulars and directives, and other
rules that ordinarily apply to assistance agreements.
Subpart O describes six types of site- and non-site-specific CAs with states and tribes to
implement the Superfund program, including: Removal, Pre-Remedial, Remedial, Enforcement, Support
Agency, and Core Program. While each type of CA is intended to fulfill a unique purpose, the award and
administration requirements of multiple CAs can limit the flexibility and discretion of EPA regions,
states, and tribes to more readily address their highest priority needs. Multiple CAs add significantly to
the Superfund administrative workload. Two key issues have been identified as concerns in the current
Superfund CA award and funding processes:
+ Regulations at 40 CFR, Part 31 and Part 35 limit the transfer of CA funds between
different sites and activities, which reduces the flexibility of regions, states, and tribes to
address changing priorities.
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4 Regions are restricted by budget categories and processes, as well as by the CA award
process, in their discretion to shift resources to meet states' and tribes' needs.
The following sections describe how the CA funding process impacts regions', states', and
tribes' flexibility, and identifies options to improve the administration of Superfund Assistance
Agreements.
A. Current Cooperative Agreement Process
1. Statutory and Regulatory Framework
As discussed above, CERCLA, Section 104, provides that EPA may enter into a CA with a state
or tribe in order to carry out Superfund response actions. 40 CFR, Part 35, Subpart 0, codifies
requirements for administering CERCLA-funded CAs.
2. Advice of Allowance Process
Currently, EPA Regions fund CAs with states and tribes through Advices of Allowance (AOAs),
which provide the authority to commit, obligate, and expend funds. Each fiscal quarter, funds pass from
Headquarters to regions according to AOAs, which are based on Phase HI Operating Plan projected
obligations for each quarter. Five AOAs allocate resources to states and tribes for the following site-
specific and non-site-specific activities: Site Characterization, Remedial Actions, Removals, Other
Response, and Enforcement.
In response to changing workloads and site conditions during any given fiscal year, regions often
need to shift funds between sites and activities. According to EPA policy, only certain types of shifts in
funds between and within AOAs are allowable.
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The chart below summarizes the restrictions on shifting funds between and within AOAs.
Shifting Funds Between and Within AOAs
Type of Move
Allowable
Not Allowable
Between different
AOAs (Requires HQ
approval)
/ From Site Characterization, Other
Response, or Enforcement to any
other AOA, except Other Response.
/ Between Enforcement and Other
Response. If shift is over $500K,
Congressional notification must be
initiated.
X From Remedial Actions or
Removals to any other AOA.
X From any AOA into Other
Response.
Between projects
within an AOA
(Does not require HQ
approval, but
WasteLAN must be
revised to reflect the
shift)
/ From projects within Site
Characterization, Removals, Other
Response, or Enforcement to other
projects within that same AOA.
Given these restrictions on movement of funds among AOAs, Regions, states and tribes are
limited in their ability to make pre- or post-award adjustments to CA budgets. Due to the inflexibility of
the AOA process, the Workgroup recommends a review of the AOA structure, with a view toward
relaxing current restrictions. Only a small number of Block Funding Pilots are now permitted to transfer
funds from Core Program CAs to pre-remedial CAs, or to transfer funds from one site to another under
site-specific CAs. Deviations from 40 CFR, Parts 31 and 35 have allowed the State of Illinois, under its
Block Funding Pilot, to cut at least three months out of the remedial process for one Superfund site and
have ensured that construction would not be delayed into the next construction season. Further, the State
of Illinois is reporting an 85% drop in the preparation and processing of fiscal paperwork due to
regulatory deviations from certain reporting, amendment, and funds transfer requirements that the state
received under its Block Funding Pilot.
3. Accounting
Certain accounting practices must be observed to ensure that monies are spent on authorized
Superfund activities. Presently, Superfund monies are tracked by site number and within the site cleanup
by activity level (e.g., remedial investigation) and by operable unit. This detailed accounting supports
recovery of Superfund dollars expended at cleanups and reporting to Congress on Superfund dollars
spent, and it should be maintained.
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4. Adjustments
Minor and major adjustments to CAs are sometimes required. Minor project adjustments, such
as small budget changes or small changes in a Statement of Work, are currently managed through
memoranda or letters and do not require significant administration. Major project adjustments are
initiated through formal amendments when there are significant transfers of funds within the CA and/or
significant changes in the scope of work, such as the addition of new duties or the elimination of existing
duties. Transfer of more than 10% of funds within the cost categories triggers an amendment. The
current amendment process takes from 30 to 120 days to complete and requires several levels of review.
Deviations from the above procedures have produced savings for all participating states.
Pilot projects now underway are testing methods to reduce the reporting requirements required
by 40 CFR, Part 35, Subpart O to identify opportunities to reduce administration requirements while
maintaining fiscal accountability in the expenditure of Superfund dollars. These projects, which
consolidate CAs and CA budgets, are having a positive impact on lowering transaction costs. The
Workgroup recommends that these streamlining approaches be more widely utilized.
5. Reporting and Accountability
States and tribes are required to report quarterly to the regions about progress on the CA scope of
work (40 CFR, Part 35.6650). Financial status reports are required annually, or as specified in the CA
(40 CFR, Part 35.6650). The need to report on Superfund expenditures in support of cost recovery, and
monitoring the use of the Trust Fund are crucial to ensuring that Trust-related funds are properly directed
to Superfund activities. Expenditure data is also needed to provide information to taxpayers, Congress,
and Superfund stakeholders. However, less frequent reporting is generating considerable savings in
pilot projects with no apparent cost to reporting abilities. It is recommended that site- and activity-
specific information be reported from the states and tribes to EPA annually, as well as during the fiscal
year when activities (e.g., CERCLA-funded response) are completed, and that procedures be developed
to submit both reports and original CA applications electronically.
6. Allocating Remedial Action Funding
New start remedial actions, removal actions that cannot be undertaken within the Region's base
budget, and enforcement projects are reviewed by the National Risk-Based Priority Panel. All projects in
these categories are evaluated by the Panel. Funding priorities are established within the three individual
categories, not across them. This procedure is designed to promote a programmatic funding balance
between projects of characteristically different natures. The enforcement projects that the Panel
presently evaluates include mixed funding sites; take-over projects; allocation sites; and sites settling
106(b) petitions.
The National Prioritization Panel, comprised of national program experts from regional offices
and Headquarters, ranks projects based on five criteria: risks to human population exposed; stability
(mobility of contaminant, site structure, institutional and physical controls); contaminant characteristics;
threat to a significant environment, and program management considerations. Projects are presented by
the region and/or state in which they are located. The nine other regions and Headquarters then score the
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project. A rank-ordered list of national priority projects is then produced, which is used to allocate
resources; projects are funded in order of scoring.
Regions and states support continuing this concept, and modifying it to include a front-end
state/regional prioritization panel. This two-tiered proposal has regions, with the opportunity extended
for full state participation, determining the relative priority of all projects in the region. Highest ranking
projects would advance to the National Prioritization Panel.
B. Cooperative Agreement Pilots
This section describes current CA and budget administration processes, practices, and pilots.
The pilots currently in place combine two or more of the following CA types: Core Program, Pre-
Remedial/Remedial Planning, and Support Agency. Three strategies have been identified that some
regions are implementing within the current CA award and administration process, and one option has
been identified but is not currently in effect. These are:
1. Integrating the Core CA into an existing Multi-Site Cooperative Agreement (MSCA);
2. Obligating CAs generically and disbursing CAs site-specifically;
3. Funding CAs incrementally for three years; and
4. Obligating and disbursing CAs generically (not implemented).
Strategies 1, 2 and 3 have been implemented by deviating from current regulations in the areas of funding
shifts, reporting frequency and scope, scope of work changes, and budget consolidation.
1. Integrating the Core Program CA into an Existing MSCA
Several regions use MSCAs with their states and tribes; these MSCAs are broader in scope than
traditional site-specific CAs. Through one lump award, MSCAs can fund activities at multiple sites for
site assessment, remedial investigation/feasibility (RJ/FS) study, remedial design (RD), and Support
Agency activities. Region 6, for example, has developed a Multi-Project CA (MPCA). Functioning in a
manner similar to a Support Agency CA, the MPCA obligates funds by different account numbers for site
assessment, PRP searches, RI/FS and RD, Core Program, and management assistance. Funds allocated to
the Core Program require a 10% match from the recipient, unless the match is waived. In addition,
budgets are combined whenever possible to make re-budgeting easier. These pilots did not require
deviation from current regulations. t
2. Obligating CAs Generically and Disbursing CAs Site-Specifically
A second funding option is to obligate CA monies generically and disburse these funds site-
specifically. This approach is currently being tested in a pilot program, as several regions, states, and
tribes have opted to obligate a combination of Core Program, Pre-Remedial, and/or Support Agency CAs
together under a lump award. Thus, the targeting of monies to specific sites is not necessary, but when
site activity is conducted, activity expenditures are accounted for and drawn down site-specifically,
maintaining the cost-recovery and reporting requirements.
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3. Funding CAs Incrementally for Three Years
A Region 8 pilot program funds each CA incrementally for three years. The CA application
package, however, is reviewed and potentially modified on an annual basis. Changes to the CA are made
possible through a letter rather than a formal amendment. The primary benefit to this pilot is that states
and tribes are able to shift resources more freely among sites and activities. The elimination of separate
object class breakouts saves time and paperwork for EPA and the states and tribes. The amendment
process is reduced by allowing larger shifts in resources. The three-year CA also reduces the number of
applications that states and tribes need to prepare and offers the recipient a more secure planning
window, which facilitates more stable staffing levels.
4. Obligating and Disbursing CAs Generically (not implemented)
In this concept, a region would obligate and disburse funds under one generic account number.
As proposed, the region would only be required to approve one disbursement rather than many, and a
state or tribe would notify the EPA award official when funds are transferred among projects, then report
on expenditures after they occur. Reporting of disbursements could be required to IFMS through
regional or Headquarters offices, or via end-of-the-fiscal-year reports. States and tribes would track
disbursements by separate account numbers in the state accounting system for each site, activity, and
operable unit to facilitate cost recovery, as is currently required in 40 CFR Part 35, Subpart O. States and
tribes would be required to provide internal accounting documentation for all costs.
An advantage of this concept is that it promotes maximum flexibility for states and tribes to shift
funds among projects when necessary, within the limits specified in the funding agreement and without
formal amendments, and to focus more on what activities must be done rather than on what categories
and funding processes must be used. This option minimizes the need to process amendments to multiple
CAs throughout the year, and could allow states and tribes to more easily address changing site and
program needs.
EPA is currently relying on state financial systems to provide site-specific expenditure
information for cost recovery. To implement this concept, EPA could specify reporting requirements for
states and tribes to follow in the CA. For example, states and tribes could be required (in the terms of the
agreement) to electronically report site-specific expenditures at specified intervals or upon request.
Reporting could be required at the time of disbursements by the states and tribes, or periodically
throughout the fiscal year. Some regions believe that this option would more accurately reflect
obligations and disbursements than the current system, which reports on obligations to activities that may
not be performed when funds are de-obligated, re-obligated, and disbursed to different activities. Region
5 proposed generic obligations and disbursements for a pilot CA with the State of Illinois, but the state's
request for deviation was denied over reporting and accountability concerns. Discussion of these issues
continues, but this option is not currently available for pilot projects.
C. Flexible Federal Involvement and Oversight
The consensus of the workgroup is that maximum flexibility in the use of Superfund
management tools is desirable. The principal recommendation is to give states and tribes greater
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flexibility in implementing the various Superfund program components. To that end, greater or lesser
involvement in implementation may be accomplished by varying the type and scope of assistance
agreement offered, depending on the extent of state or tribal readiness, the combination of program
elements requested by the state or tribe, and the need for substantial EPA involvement in the
implementation of the activity. Possible changes to provisions of the Superfund administrative
regulation, 40 CFR Part 35, Subpart O, are being examined for assistance agreements issues.
The National Environmental Performance Partnership System (NEPPS) is the foundation for
both Environmental Partnership Agreements (EnPA), also known as Performance Partnership
Agreements (PPAs), and Performance Partnership Grants (PPGs). The objective of NEPPS is to assist
states and tribes in setting environmental priorities while concentrating EPA oversight where it is most
needed. PPGs provide states and tribes with the option of combining two or more of EPA's 16
categorical grants into a multi-program grant that does not require the tracking of funds back to
individual programs. Because of the current structure of the Superfund Trust Fund as mandated by
statute, and PPG authorizing language, Superfund CAs cannot be combined with PPGs, but block
funding approaches to consolidating CAs currently being piloted in Superfund effect a similar concept.
While Superfund CAs and PPGs cannot be combined, there is a possibility of greater utilization of the
PPA in documenting the use of Superfund in concert with other environmental programs. Some
Superfund-related work is already being incorporated in PPAs with states. A benefit of using either a
PPG or consolidated Superfund CA is that either instrument allows for appropriate oversight by EPA.
Oversight will vary depending upon a particular state's or tribe's situation and comfort level with
implementing the Superfund program.
D. Distribution of Funding
The current approach to distribution is through annual negotiations with states and tribes based
on historical activity and planned new activity. A common funding distribution approach for delegated
programs is formulaic. The SMC has recommended that distribution of funding questions be discussed at
a future point, when greater certainty exists over the levels and uses of funding. However, it may be
beneficial to consider what may enter into a formula for the distribution of resources among the states
and tribes. Such a formula might encompass such indicator values as the number and types of facilities
the state is requesting responsibility for, the number of NPL sites, the number of other high priority
facilities, and other factors such as personnel requirements, staffing ratios, possible relative risk of sites,
available state resources, program components requested, and alternative funding available at the state
level Untested and prescriptive distribution methodologies, however, are to be avoided, and states and
tribes should be involved in developing a distribution methodology. Non-formula-based local
negotiations between the EPA regions and states and tribes to identify annual activities and workload,
which are then further negotiated at the Headquarters level to meet national dollar targets, have been
successful in the past. Until a future program change more clearly establishes the ground rules for
development of a formula-based allocation, it is recommended that the current annual negotiation process
continue as a basis for funding distribution.
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V. Recommendations
A. Two-Phase Program :
A two-phase program is recommended that has the following features:
4 Combine all or several of the Pre-Remedial, Support Agency, Core Program,
Enforcement, and Removal Capability CAs into a single assistance agreement reflecting
the desired level of EPA involvement and the activity(ies) sought by the state or tribe;
and
f Manage remedial activity and large-dollar, non-time-critical removal actions separately,
and prioritize these actions nationally, utilizing a modified version of the current national
priority-setting process.
Other two-phase program features are:
* Flexible EPA involvement/oversight depending on a state's or tribe's interest and
experience in managing Superfund;
+ Utilizing current authorities and block funding strategies more broadly to identify
strengths and weaknesses in the two-phase strategy approach;
+ Utilizing multi-year funding, based on state or tribal and regional negotiations, to
enhance state and tribal strategic planning for Superfund implementation; and
4 Reworking the AOA process to increase the flexibility to redirect resources.
The options listed below are specific examples of currently available tools for implementing the
Superfund program, and are advocated by the Workgroup for continued use in the future.
B. Block Funding within Superfund
It is recommended that Block Funding Pilot projects be expanded to include more states and
tribes. Allowing regions to obligate funds generically and disburse funds site-specifically would advance
this option. This pilot option would enable states and tribes to target resources toward the most crucial
Superfund activities. In addition, the need to process amendments to multiple CAs would be reduced and
states and tribes could more easily address changing site and program needs.
C. Modify Priority Panel
Regions and states are supportive of continuing a National Risk-Based Priority Panel to prioritize
new start remedial actions, removal actions that cannot be undertaken within the region's base budget
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and enforcement projects. Projects in these categories should be evaluated by the Panel. It is proposed
that the Panel include a front-end state/regional prioritization panel. This two-tiered proposal has the
regions, with full state participation, determine the relative priority of all projects in the region. Highest-
ranking projects would advance to the National Panel.
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Chapters: Agreements
Recommendations
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I. Introduction
The Agreements Workgroup focused its efforts on developing an agreement that could be used as
a prototype to foster greater cooperation and efficiency among EPA and the states and tribes. Once a
state or tribe has identified its interest in the Superfund process, worked with EPA to assess its capability
to implement the program, and determined the types of technical and financial support needed to
proceed, the state or tribe is ready to work with EPA to formalize their respective roles in an MOA. The
MOA is designed to ensure the most efficient use of personnel and resources to clean up the greatest
number of sites.
With respect to improving the current Superfund program to promote a greater implementation
role for states and tribes, the Agreements Workgroup has developed a Model Agreement, which
represents what the Workgroup believes are the essential considerations needed within a written
agreement to ensure successful relationships among signatories and to facilitate implementation of the
Superfund program. These agreements cannot supersede existing agreements (e.g., consent decrees,
administrative orders, Federal Facility Interagency Agreements).
Recommendations
The Workgroup recommends that states and tribes follow the Model Agreement to build a
long-term, results-oriented MOA with EPA.
The most important part of an MOA between a state or tribe and EPA is to clearly define the
roles and responsibilities of each party.
The Workgroup intends for the Model Agreement to be user-friendly and widely applicable. By
identifying the categories or subjects an agreement should cover, but leaving open the exact details, the
Workgroup believes the agreement will provide maximum effectiveness and durability, while still
remaining responsive to the specific needs of state or tribal governments and EPA regions in defining
their relationship to each other. The Workgroup envisions that EPA in many cases may negotiate
individual sub-agreements to clarify time-sensitive issues (e.g., pilots and new initiatives) and/or provide
site-specific guidance. This will enable the Model Agreement to avoid time-consuming modifications.
However, in other instances the division of responsibilities may be defined more easily in the Model
Agreement itself; it is up to the region and state or tribe to determine whether sub-agreements are
appropriate.
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The Workgroup adhered to a set of guiding principles or criteria in developing the Model
Agreement. The Model Agreement must:
+ be easy to implement;
f be durable (long-term/multi-year);
f provide accountability;
4 focus on a results-oriented approach;
4 establish clearly defined roles and responsibilities;
4 incorporate community participation; and
+ ensure regions have an acceptable level of autonomy to implement agreements.
The Workgroup researched existing agreements under other programs through a "lessons
learned" approach. By analyzing existing agreements, the Workgroup identified several common
components that it considered to be essential requirements in any agreement. Presentations to the
Workgroup from other program representatives provided first-hand information about the RCRA and
Clean Water programs. These presentations identified problems and successes of both programs during
their transition periods, as well as their current status. The more straightforward and understandable
agreements that could easily and quickly be implemented by states and tribes were used as references by
the Workgroup.
In addition to researching other programs and existing agreements, the Workgroup coordinated
its efforts with the two workgroups developing criteria for state and tribal readiness and funding and
technical assistance options. Input from these other workgroups has been incorporated into the Model
Agreement.
By achieving the above-stated goals, the Workgroup believes that the Model Agreement can be
used within the Superfund program both now and in the future. The Model Agreement is intended to
work within the current Superfund program. However, given the uncertainty of what may result from
reauthorization of the Superfund statute, EPA recognizes that reauthorization may dictate some changes
within this model, and the Workgroup believes the model should be revisited when Superfund is
reauthorized. In the meantime, any pilots using the Model Agreement will be implemented in accordance
with applicable federal laws and regulations. EPA does not intend for regions to implement
recommendations which are contrary to existing statutory or regulatory authorities during this pilot
phase.
II. Model Agreement Analysis
A. Background Section
The Background Section of the Model Agreement sets the stage for EPA's and the state's or
tribe's understanding of the Agreement. The section provides basic information while stressing a
partnership between EPA and states or tribes to help establish a collaborative working relationship.
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To better achieve this partnership, the agreement should identify a state's or tribe's interests and goals,
what it can currently do, and what assistance is needed to fulfill those goals for additional future program
responsibilities.
B. Program Authorities Section
The Program Authorities Section can be used to clearly identify major current federal and state
or tribal laws and regulations that affect the actions identified within the Agreement. This section
provides a forum for states and tribes to clearly identify their unique laws and regulations. In addition to
environmental laws and regulations impacting the agreement, applicable cross-cutting socio-economic
requirements (e.g., Title VI of the Civil Rights Act, Drug-Free Workplace, contract procurement and
debarment and suspension provisions) could also be identified within this section.
C. Roles and Responsibilities Section
One of the most important functions of this Agreement is to clearly define roles and
responsibilities. Where appropriate, the Workgroup advocates a "single regulator" approach to decision-
making. Where this is not possible, it is critical for EPA and the state or tribe to address the lead and
support agency's roles and responsibilities, to ensure all activities are being addressed and
responsibilities are divided appropriately. The negotiations between EPA and the state or tribe should
address the type of sites included within the Agreement, as well as the lead for specific program
activities. These early, detailed negotiations can help avoid duplicative efforts and misunderstandings
while maximizing resources and capabilities.
D. Program Elements or Components Section
This Model Agreement is intended to facilitate an appropriate division of labor by identifying all
components in the Superfund process so that EPA and the state or tribe can jointly determine which party
can best address the activities under each component. Chapter 1: Readiness Recommendations, uses
generic terms to define common Superfund activities, to accommodate the differences between state and
tribal terminology and potential changes to current terminology due to reauthorization. The Model
Agreement uses both generic and Superfund-specific types of terminology. Using both types of
terminology creates long-term applicability that can serve for either the current program or any future
reauthorization scenario. The familiar Superfund-specific terms will serve as a reference point to
facilitate better understanding and implementation.
The Workgroup identified Data Information Management as an important cross-cutting issue that
should specifically be addressed within the Agreement to ensure appropriate information exchange
between the state or tribe and EPA. This information exchange is necessary in order to maintain federal
and state or tribal tracking and reporting needs, and will enable appropriate accountability in response to
Congressional, General Accounting Office (GAO), or other inquiries.
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Environmental initiatives like Brownfields or VCPs could be identified here, to ensure
responsibilities are clear and there is appropriate division of labor. However, including programs for
which other criteria have been developed would not subject such programs to any additional readiness or
other requirements associated with this Model Agreement.
E. Protective Cleanup Section
The Workgroup viewed the Protective Cleanup section as necessary to highlight CERCLA's
mandate to protect human health and the environment. This section also serves as an appropriate place to
discuss EPA and state or tribal cleanup level issues.
F. Community Involvement Section
While developing the Model Agreement, the Workgroup discussed including public participation
within each program component as well as specific community involvement during the Agreement
negotiation process. The Workgroup recommends this section address community involvement in
relation to the Model Agreement. Individual program components or site-specific sub-agreements should
address the appropriate level of community involvement for each response activity, including the steps
necessary to achieve the appropriate level of community involvement.
G. Program Planning and Review Section
This section is intended to emphasize a partnership approach in Program Planning and Review.
This includes a shift toward recognition and measured progress based on outcome rather than process or
output. These outcome-based measures could include environmental indicators. This section allows for
a long-term planning and program approach. Scheduled meetings to plan and review the program at staff
and management levels could also be negotiated during this time. The level of oversight will be
determined by EPA and the state or tribe during this process.
H. Dispute Resolution Section
The Workgroup acknowledges that disputes may arise during the lifetime of the Agreement.
This section allows for a process to be developed that resolves disputes about general program issues, as
well as disputes about site-specific issues. Where current successful processes already exist, those
processes should be continued. The Workgroup's main concern is that disputes are resolved at a staff
level in a timely manner. If disputes are not resolved in a timely manner, they should be elevated to a
higher level without retribution. Note: Superfund CA recipients must comply with dispute resolution
procedures described in 40 C.F.R. §35.6770.
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I. Funding Section
To allow for durability of the Agreement, funding information may be included in either the
Agreement or assistance sub-agreements. Issues and recommendations raised in the technical and
funding assistance paper are applicable to the Agreement.
J. Terms of the Agreement Section
The Terms of the Agreement section is considered by the Workgroup to be an important section
in any agreement. It allows for flexibility when EPA and states or tribes negotiate procedures and
administrative issues. If significant change (including statutory, program or funding) occurs that affects
the state's or tribe's or EPA's ability to carry out the Agreement, then it should be brought to the
attention of all parties to the Agreement to decide what the implications/consequences are to the
Agreement.
K. Signature of Agreement Section
The Workgroup recommends that at a minimum the EPA Division Director and the equivalent
state or tribal counterpart sign the Agreement. Note, however, that NCP section 40 CFR §300.505(b)
currently requires the signature of the EPA Regional Administrator and the head of the state agency.
L. Appendices (if appropriate)
Appendix A identifies additional reference documents. These documents could include the
Technical and Funding Assistance Report, Readiness Criteria, lists of appropriate regulatory items,
operating plans, and major guidance documents. Appendix B could include sub-agreements such as
pilots, initiatives, functions, program components, training needs and strategies, and site-specific items.
Appendix C could include supporting assistance or funding agreements.
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Superfund Agreement between U.S. EPA and the State of
or Tribe
1. Background
Note: This Model Agreement is intended to address matters at a program level. If needed,
separate sub-agreements could be entered into to identify the process for sub-program
activities. In addition, this Model Agreement is applicable to any state or tribal program,
as it can be tailored for varying purposes.
Describe the purpose of the agreement.
Identify how, and for what reasons, the agreement came into existence. Identify the state's
or tribe's interests and goals for future additional program responsibilities, what can be
done currently, and what assistance is needed to help the state or tribe fulfill those goals
for future program responsibilities.
Develop a results-oriented statement relaying that EPA and the state or tribe will achieve
cleanup goals through a partnership approach. The commonality of their mission should
be stressed.
Identify the state or tribal authority or agency responsible for implementing the response
program, or specify program components.
Acknowledge federal government recognition that the identified state or tribe has the
authority to ensure response or to carry out specific components/activities.
Include language supportive of current environmental initiatives.
II. Program Authorities
This section is intended to provide a framework of federal and state laws that are applicable to the
implementation of this agreement. It should include citations to federal and state environmental
and socio-economic laws and regulations.
HI. Roles and Responsibilities
This section is intended to specify the roles and responsibilities of each party to the agreement.
Outline each party's responsibilities (lead and support roles) and what the state or tribe and
EPA are required to do in order to carry out the agreement.
Identify key state, tribal or EPA contacts for information relating to this agreement. These
contacts should be identified by position title rather than by individual name.
Identify the types of sites that will be included in the agreement.
If appropriate, reference information relating to specific pilots, initiatives, and priorities
that can be found in applicable sub-agreements in Appendix B of the Agreement.
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IV. Program Elements or Components
This section provides a list of all the Superfund Program Elements or Components from
which EPA and the state or tribe can negotiate the specific program components that the
state or tribe will implement. Implementation should be under applicable federal laws and
regulations.
Assigning responsibility for these program components is a necessary consideration for
both capacity building and effective program implementation.
The definitions for program components identified below use Superfund-specific terms, as
these are Superfund agreements; the Readiness Chapter provides generic definitions to
allow for consideration of all applicable experiences and terminology.
Site Identification, Screening. Prioritization
- Pre-Remedial includes Deferrals, Site Assessment (Preliminary Assessments/Site
Inspection, removal assessments, pre-CERCLIS screening), HRS and NPL.
- PRP Search, Site Access, State Authorities to Compel Site Assessment, and
Notification.
Short-Term Action Activities
Emergency Response.
- Removal includes Time Critical and Non-Time Critical.
- Site Access, Orders to Compel Cleanup and Post Cleanup, Cost Recovery, and PRP
Search.
Long-Term Action Activities
- Remedial includes RI/FS Study, Risk Assessment, Records of Decision, Remedial
Design, and Remedial Action.
- Site Access, Orders to Compel Cleanup and Post Cleanup, Cost Recovery, and PRP
Search.
Post-Cleanup Site Monitoring and Evaluation
- Long-term Response Action, 5-Year Reviews, and Operation and Maintenance.
- Site Access, Orders to Compel Cleanup and Post Cleanup, Cost Recovery, and PRP
Search.
Cross-Cutting
- Natural Resource Trustee Coordination, Data/Information Management, CERCLIS 3
Interface, and Community Participation, which includes public meetings and
briefings, Fact Sheets, Update Letters, Media/Site Celebrations, Public Notices and
Comment Periods, and Technical Assistance Grants (TAGs).
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In order to clarify responsibilities, other subjects could be included as states or tribes and
regions want, such as Brownfields, VCPs, Environmental Justice initiatives, etc.
Programs for which other criteria have been developed would not be subject to
additional requirements of the agreements, such as the readiness criteria.
V. Protective Cleanup
This section should ensure the agreement includes a statement that the cleanups
undertaken by the state or tribal programs will be protective of human health and the
environment, and will comply with all applicable state and federal laws and regulations.
This section could address EPA/state cleanup level issues.
VI. Community Involvement
This section is intended to identify mechanisms for providing community involvement during
the development and implementation of this agreement.
Mechanisms for public notification and response to public comments on the agreement
should be included.
Site-specific community involvement should be addressed within individual program
components.
VII. Program Planning and Review
This section is intended to be negotiated between EPA and state or tribal representatives to
facilitate a mutually acceptable level of communication between the two parties.
Negotiate goals and outcomes in a manner that is consistent with the GPRA. This
information may be included in sub-agreements.
Establish appropriate environmental indicators (consider ASTSWMO/EPA Workgroup
products) to identify the areas of progress. Actual environmental indicators could be
included in sub-agreements.
Clarify how site-specific reporting for applicable sites (should include, at a minimum,
NPL sites) will be conducted, with electronic reporting compatible with EPA's national
data system preferred. ;
Provide for mutual access to appropriate documents.
Determine regularly scheduled meetings between parties to facilitate long-term
relationships between programs.
Measure, on an annual basis, the past year's accomplishments and discuss the upcoming
year's plans, for both the state or tribe and EPA. See 40 CFR §300.505(b) of the NCP %
for current annual consultation requirements. Consider mechanisms for community
participation in this planning process. Specific site details can be identified in this
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agreement or in sub-agreements.
Respond to and address programmatic audits by state and federal agencies.
» Define types of support that will be provided to enhance the state's or tribe's capacity.
« Negotiate appropriate level of review/oversight.
Vlll. Dispute Resolution
This section is intended to establish an appropriate course of action to follow if disputes arise.
Resolution should be based upon the exchange of documented references or citations as
supportive rationale for respective positions of an issue.
» Immediate supervisors for both agencies should attempt to resolve the disputes.
« A mutually agreeable timeframe should be established. Disputes that are not resolved
within this timeframe should be forwarded to designated higher-level supervisors for
resolution. Final authorities for resolution need to be identified.
IX. Funding
Note: This agreement has not been developed for purposes of committing or transferring
monies, as it is not an assistance agreement. Additional information can be found in Chapter 2:
Assistance Recommendations.
Identify what kind of financial assistance will be available (e.g., block grants,
consolidated CAs, Multi-Site CAs, etc.).
Identify the procedure for states or tribes to access funds, e.g., funding through a CA.
When federal monies are provided, mutually agreed upon results should be developed
that are consistent with GPRA.
Address site-specific financial audits by state and federal agencies.
X. Terms of the Agreement
This section is intended to provide administrative information relating to the life of the
agreement and how the agreement may be amended if the need arises.
Identify the duration/period of performance of the agreement, including start and end
dates, and potential extension periods.
Develop a procedure for updating the agreement or sub-agreements, or amending the
agreement; for example, as new sites are added.
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Develop and identify a procedure to ensure that significant changes affecting a state's or
tribe's or EPA's ability to carry out the agreement (e.g., statute, program or funding
changes) are brought to the attention of all parties to the agreement to decide what the
implications/consequences are to the agreement.
Identify the process to terminate for cause and terminate for convenience. This includes
specific clauses or language that should be used for termination. Indicate that
termination can occur upon request of either party after consultation with the other party.
XI. Signature of Agreement
In accordance with applicable state and federal laws, identify appropriate signatories
from EPA and the state or tribe.
Identify appropriate sub-agreement signatories. They need not be the same as signatories
for the basic agreement.
Appendix A: Reference Documents
This section may include documents and plans such as the Technical and Funding Assistance
Report, Readiness Criteria, list of applicable cross-cutting socio-economic requirements (e.g.,
Title VI of the Civil Rights Act, Drug-Free Workplace, etc.), operating plans, and major
guidance documents.
Appendix B: Additional Agreements
This section could include sub-agreements and site specific agreements that are applicable to the
agreement. These sub-agreements may include pilots, initiatives, functions, program
components, training needs, and site-specific items. Alternatively, if the region and state or tribe
prefer, these could be included in the agreement itself.
Appendix C: Funding
This section could include assistance agreements.
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Chapter 4: Tribal Recommendations
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I. Introduction
Federally-recognized Indian tribes are unique sovereign nations. The federal government's legal
and political relationship with tribes includes the Federal Trust responsibility that arises from Indian
treaties, statutes, executive orders, judicial decisions, and the historical relations between the United
States and Indian tribes. The trust responsibility requires the federal government to consider the best
interests of the tribes, including protection of the tribal sovereignty of each tribal government, in its
interaction with them and when taking actions that may affect them. Traditionally, tribal programs have
been modeled after state programs, which do not necessarily take into account tribal needs and priorities.
Thus, enhancing the role of tribes in Superfund should be addressed separately from states.
The goal of the Tribal Workgroup is to make recommendations on how to improve the
involvement of tribes in the Superfund program. While the other three workgroups are addressing
readiness, assistance, and agreements for states, the Tribal Workgroup is focused on these same issues
from a tribal perspective. Because many tribes have very little, if any, involvement in Superfund, the
recommendations in this chapter emphasize assistance to tribes in Superfund program development.
Section II of this chapter addresses tribal readiness; Section m discusses EPA assistance to tribes; and
Section IV contains EPA-tribal partnership agreements.
II. Readiness
While the Tribal Workgroup endorses the criteria developed by the Readiness Workgroup for
assessing state and tribal Superfund capabilities, these criteria may not yet apply to all tribes. Tribes are
following the same path as states in enhancing their role in Superfund, but tribes are at earlier stages,
where capacity building is the highest priority.
Recommendations for Tribal Readiness
Encourage tribes to build Superfund program capacity relevant to their individual needs and
priorities.
T Ise existinff information to identify tribes with existing tribal capacity within each EPA region.
The focus for enhancing the tribal role in Superfund should emphasize assisting tribes in building
capacity to a level where the readiness criteria will apply. Due to the current level of tribal Superfund
readiness, tribes should be encouraged to develop their capacity in whichever program components are
most relevant to their needs and priorities.
Until tribal capacity has been strengthened, each region should develop an understanding of the
existing capabilities of the tribes in its region. A region may only need to review its files for previous
assessments of tribes and update that information as necessary. This information should assist regions in
identifying the various tribal issues and priorities.
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ill. Assistance to Tribes
The capacity of tribes to implement the Superfund program varies greaitly from tribe to tribe.
The recommendations in this section detail the critical elements of assistance that EPA can offer. Some
needs are similar to those of states, such as the need for a variety of flexible funding tools and increased
access to federal technical resources. However, specific tribal needs depend on building a foundation of
Superfund program knowledge and funding, and incorporating tribal perspectives into program elements.
Recommendations for EPA assistance to tribes are organized into four main topics: A) Funding; B)
Training; C) Administrative/Infrastructure; and D) Technical.
A. Funding
Recommendations for Increasing Funds
Increase funding for tribes in the form of specific tribal funding that is allocated separately from
state funding.
Develop and apply for a class deviation from the 10% Core funding cost-share on behalf of all
tribes.
Tribes are only at the early stages of Superfund involvement, in part because past funding
allocations have not been adequate to support tribal participation. Because of the critical differences in
needs and capacity between states and tribes, tribes should receive specific funding that is allocated
separately from states, with a separate prioritization scheme for distribution of funds to tribes.
Deviations from cost-share requirements are recommended for tribes because, unlike states, some
tribes do not have continuous sources of revenue, such as a reliable economic base or tax structure.'
Without such revenue, it is essential that tribes be able to use federal funding to address their priorities.
B. Training
Recommendations for Improving Tribal Superfund Training
Develop and provide a consolidated resource manual, Tribal Superfund Orientation Manual, to
all tribes.
Design a basic tribal Superfund curriculum specifically for tribes that includes courses, currently
offered through regional offices and the CERCLA Training Center, modified to incorporate tribal
perspectives.
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A critical component of building tribal capacity will be to offer training that is more readily accessible
and applicable to tribes than what currently exists. To facilitate the educational outreach to tribes on
both administrative and technical aspects of Superfund, it is necessary to develop and offer a
consolidated resource manual, Tribal Superfund Orientation Manual. This one-stop resource for
information would consist of several notebooks that include Superfund orientation materials, guidance (
documents, prototype documents already developed and used by tribes, and references. The materials
would cover all phases of Superfund program elements, but would focus on areas of particular concern to
tribes, and would present a tribal perspective on all issues. The notebooks would be accompanied by a
training course to introduce tribes to the notebook contents.
The development of the Tribal Superfund Orientation Manual will require the intensive
involvement of tribal organizations or individual Tribes, and the training course to introduce the manual
will be taught by a tribal representative. These materials and training will not replace training on specific
Superfund topics, but will serve as a comprehensive reference tool that is readily available to tribal
personnel. In addition to these materials, specific training courses that should comprise the basic tribal
Superfund curriculum should be developed. Necessary courses may already be offered in regional
offices or at the CERCLA Training Center. However, they will need to be modified to include tribal-
specific concerns and perspectives. These courses are suggested in the section of this chapter where they
are applicable, and a suggested list is included as Appendix C of this report.
C. Administrative/Infrastructure
1. Regulatory Capability
Recommendations for Improving Tribal Regulatory Capability
Assist tribes in establishing codes and ordinances.
Develop and regularly offer a course on regulation writing for tribes.
Not all tribes have in place the administrative processes to promulgate regulations. Tribal
environmental agencies may not have the autonomy to develop administrative compliance or
enforcement regulations. The federal regulations could be included in tribal codes and ordinances;
however, many environmental regulations are lengthy and many tribes do not have the financial and
personnel resources to develop and administer such complicated and cumbersome codes and ordinances.
Assisting tribes in establishing codes and ordinances and training on regulatory issues will help them
overcome these obstacles. One option would be to assist tribes in hiring consultants to develop codes
and ordinances.
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Furthermore, tribes do not have criminal enforcement authority for violations committed by non-Indians
on tribal land. For environmental crimes, enforcement of criminal violations would be the purview of
federal authorities.
2. Program Management Capability
Recommendations for Improving Tribal Program Management Capability
Streamline the issuance and administration of financial assistance.
Develop and regularly offer training courses specifically for tribes in Contract Management;
Grants/Cooperative Agreement Management; and Project Management.
Assist tribes in obtaining access to technical resources.
In comparison to many states, tribes are at a distinct disadvantage in terms of administrative
project management. This is partly due to the comparatively small number of tribal staff available to
assume record-keeping, procurement, program management, and technical duties. Thus, it is difficult for
many tribes to meet stringent, time-consuming, administrative requirements of Superfund. In addition to
the small staff sizes, many tribal staff may not have vast experience working with federal contracts, CAs,
grants, property management, and procurement. Consolidating administrative requirements as much as
possible (e.g., procurement certification could be submitted once a year for multiple grants) and training
tribal staff in Superfund administration and program management will help tribes meet the necessary
requirements.
Tribes have limited financial resources to buy computers, access the Internet, and purchase the
latest technologies available. Such resources are key to building capacity.
D. Technical
The program components identified in the readiness criteria and the Model Agreement were used
as a basis for structuring these technical assistance recommendations. The definition for each program
component is taken directly from those provided by the Readiness Workgroup. Because tribes are only
beginning to assume Superfund program responsibilities, the focus of technical assistance is on capacity
building for components in the initial stages of the program.
1. Site Identification, Screening, and Prioritization
The efforts under this program element are designed to enable tribes to identify, screen, and
prioritize potentially contaminated sites using a system that conforms with the policies and requirements
of the current Superfund program.
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Recommendations for Expanding Site identification Capacity
Assist tribes in developing tracking and notification systems for potentially contaminated sites
and hazardous substance releases.
Include tribes as partners in regional equipment-sharing arrangements and ensure that tribes
know how to access and use the equipment. (Also see Chapter 2: Assistance Recommendations,
Section B, Frequently Used Equipment, and Specialized or Infrequently Used Equipment.)
Provide tribal access to CLP laboratories. (Also see Chapter 2: Assistance Recommendations,
Section B, Contract Lab Program and Other Labs.)
Modify and regularly offer courses to tribes, including: Site Screening, Preliminary
Assessment/Site Investigation Training, 40-hour Health and Safety and 8-Hour Refresher, and
Sample Taking.
Currently, little site discovery work occurs in Indian country, and therefore the universe of sites
in these areas may be much greater than currently estimated. A more accurate accounting of sites that
affect tribes is necessary. Mechanisms, similar to those employed by states, for the tracking and
notification of potentially contaminated sites and hazardous substance releases would expand site
discovery in Indian country. To further expand site identification capacity, tribes have a need to access
federal resources. To ensure this access, it is necessary to provide information on what is available, how
to access it, and how to use it.
Recommendations for Expanding Site Screening and Prioritization Capacity
4 Develop a screening and prioritization process that includes tribal cultural values.
4 Assist tribes in finding cleanup alternatives for sites that cannot be addressed under the
Superfund program.
+ Provide interested tribes with assistance to develop VCPs and Brownfields programs.
4 Develop and regularly offer a tribal-specific course on the HRS.
EPA's current methods of screening and prioritizing Superfund sites are based on lexicological
principles that do not account for tribal cultural values. The HRS is the mathematical scoring system
used by EPA to assess the relative risks posed by sites in order to determine whether a site is eligible for
placement on the NPL. The HRS evaluates the risks posed by groundwater migration, surface water
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migration, soil exposure, and air migration in terms of the likelihood of release, constituent
characteristics, and target populations. The existing HRS does not appropriately reflect risk to tribes for
two primary reasons. First, Indian country is often sparsely populated and does not constitute a large
enough target population to qualify on the HRS. Second, tribes use natural resources for purposes that
are not typical of other populations. Tribal culture and tradition may involve using natural resources for
medicinal plants, subsistence living, and sacred ceremonies. Including tribal cultural values and natural
resource uses in the HRS will encourage tribal involvement and capacity building in site screening and
prioritization by making the process more relevant to tribal concerns.
While states may be able to refer sites not added to the NPL to other programs for evaluation,
tribes experience obstacles when addressing sites that do not qualify for Superfund resources under
current national screening and prioritization standards. In states, the responsibility for such sites that
have been deemed "No Further Remedial Action Planned" (NFRAP) is often assumed by other state
programs, such as VCPs and Brownfields. Without such programs, tribes have no alternatives for
cleaning up sites that do not qualify for federal funding, and often the risks posed by these sites remain a
threat to tribal communities. Unless such programs are in place, other mechanisms need to be created to
ensure that tribal protection from hazardous waste releases is not neglected.
2. Short-term Actions
The efforts under this program component are designed to ensure that tribes have the ability to
conduct short-term actions.
Recommendations for Building Short-term Action Capacity
Improve tribal access to experts to assist in emergency situations or critical areas where a tribe
has not yet developed expertise. (Also see Chapter 2: Assistance Recommendations, Section B,
Expert Assistance)
Improve funding and the ability for tribes to secure their own small, private contractors.
Until a tribe has developed its own in-house expertise, access to experts will be particularly
important in time-critical situations. IPAs, EPA experts on a short-term basis (e.g., Emergency Response
Team, EPA labs), and contractors are options available to fulfill this need. However, because many
tribes are located in remote, rural areas, IPAs are often difficult to fill and can be very costly.
Contractors may be more available to tribes, but may also be expensive. Because tribes may have limited
legal resources, expert assistance with PRP searches, enforcement actions and negotiations is also
extremely valuable.
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3. Long-term Actions
The efforts under this program component are designed to build tribal capacity to conduct
technically complex, long-term remediation activities. The capacity to perform long-term actions is
contingent upon strengthening tribal Superfund capabilities. In addition, incorporating tribal values in
long-term actions may require modifications to the risk assessment process.
Recommendations for Building Long-term Action Capacity
4 Assist tribes in developing the capability to select remedies.
4 Ensure consultation and involvement with tribes throughout all long-term actions, including the
risk assessment process that are conducted in Indian country or where tribes are affected by the
action.
4 Incorporate tribal concerns by integrating human health and ecological factors and cultural
values in the risk assessment process and modify EPA guidance appropriately.
4 Consider potential damage to tribal cultural resources resulting from any remedial action which
may impact tribal lands.
4 Support tribes' role as an Natural Resource Damage Assessment (NRDA) Trustee by promoting
coordination with tribes on any remedial action which may impact tribal lands.
4 Modify current courses to include tribal perspectives on risk assessment, eco-assessment, risk
communication, data quality objectives, quality assurance management plans, and quality
assurance project plans.
Human health and ecological risk assessments are conducted to assess the dangers that are posed
to human and ecological populations if no remedial action were to occur. Similar to the HRS, the
exposure pathways that are developed in risk assessments do not account for tribal traditions and cultural
values. Typical risk assessment scenarios estimate the extent of exposure by assuming standard
population characteristics that have been developed by EPA. These assumptions may not be accurate for
tribal populations who use natural resources for subsistence fishing, farming, ranching, and gathering;
medicine; and/or traditional ceremonies.
Current assumptions of safe risk levels and standards may also be inappropriate for tribes.
Acceptable risk levels are determined by communities through the public discussion and political
process. Each community has concerns that may differ from other communities. Tribal communities
generally have some differences in concerns from those of states (e.g., tribes' culture and livelihood is
inextricably linked with the land and its use for sustenance, religion, and other purposes). Some tribes
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may utilize the federal preliminary remedial guidelines for acceptable risk levels, while others may
develop their own. Each tribe should be involved in and consulted on decisions regarding risk levels.
During long-term actions, direct discussions with the tribe are necessary for tribal risk assessments.
The risk assessment process was developed to help EPA meet its Superfund mandate to protect
human health and the environment from current and potential threats posed by hazardous substances.
The process examines risks to human health and the environment separately; for many tribes, human
health and the environment are inseparable. Risk assessments in Indian country should integrate human
health, ecological, and cultural considerations and emphasize a comprehensive approach by allowing
public participation in the decision-making process. Examples of tribes and references to unique tribal
considerations could be incorporated into the guidance manuals.
In addition, the process needs to address the potential loss of use due to remedial activity. Risk
assessments estimate the danger to current and future populations near the site posed by contaminants if
no remedial activity is taken. The results of the risk assessment are used to help select the remedies for
reducing site risks. However, the process of remediation itself can cause irreparable damage to
historically sacred Indian sites or other cultural resources, and should be considered when selecting
appropriate remedies for sites in Indian country.
4. Superfund Amendments and Reauthorization Act (SARA) Title III
Recommendations for Building Emergency Planning and Preparedness
Capacity
Assess existing emergency response infrastructure within tribal communities using existing
regional information.
Assist tribes in developing a Tribal Emergency Response Commission/Local Emergency
Planning Committee (TERC/LEPC) structure and in applying for appropriate grants.
Increase funding for Chemical Emergency Preparedness and Prevention Office (CEPPO) grants
to tribes and support deviations and creative solutions from the 25% in-kind matching
contribution.
Regularly offer a basic tribal-specific SARA Title IH course.
Emergency preparedness and prevention is of critical importance to tribes due to the increasing
number of hazardous materials transported over Indian country. Thus, an assessment of existing tribal
infrastructure would help identify the next steps for assisting tribes and determining effective methods
for building emergency response and preparedness capabilities. CEPPO within EPA awards annual
grants to states and tribes for the establishment of state or tribal Emergency Response Commissions and
for training, technical assistance, and coordination with LEPCs. Tribes have received an average of
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$150,000 annually since 1990. However, the 25% matching funds requirement for CEPPO grants can be
a barrier for tribes. CEPPO has also made funds available to tribes through the General Assistance
Program. Additional assistance, such as a tribal-specific course in SARA Title HI, will be necessary to
help tribes overcome obstacles to building their emergency response, preparedness, and prevention
capabilities.
IV. Agreements
The Tribal Workgroup endorses the general Model Agreement developed by the Agreements
Workgroup; however, other considerations and options that are unique to tribes could be applied to EPA-
tribal relations. The two recommendation areas in this section address the critical components that are
necessary for improving EPA-tribal partnerships. Section A addresses how EPA staff understanding of
tribal governments can be improved. Section B promotes inter-agency coordination.
A. Understanding Tribal Governments
Recommendations for Increasing EPA
Staff Understanding of Tribal Governments
Offer a tribal cultural awareness and tribal-EPA government relations course to Superfund staff.
Increase awareness of availability of information about tribal governments, treaties, and activities
to Superfund staff.
Revisit and frequently update any agreements that are established with tribes so as to reflect
current tribal priorities.
A tribal cultural awareness course for Superfund staff would facilitate partnership and
understanding between tribes and EPA Superfund staff. Tribal governments are sovereign nations that
assert jurisdiction over their people and land. Many tribal governments combine aspects of their
traditional styles and institutions with common western forms. The structures of tribal governments have
developed in response to the same kinds of factors that affect the development of any government:
population size, land base, and economic, cultural, and political considerations. Like other governments,
tribes experience changing politics and priorities with changing administrations. Thus, any agreements
that are established with tribes should be frequently revisited and updated.
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B. Inter-agency Coordination
Recommendation for Enhancing Inter-agency Coordination within Superfund
4 Increase commitment and efforts, at all levels within EPA, to enhance communication and enact
inter-agency agreements among federal agencies working with tribes.
Every federal department and agency is responsible for upholding the Federal Trust
responsibility to the federally-recognized Indian tribes. Thus, inter-agency coordination is particularly
important in relations between the federal government and tribes to ensure that the trust responsibility is
fulfilled.
All of the federal agencies that are involved in protecting tribal environmental and cultural health
need to develop inter-agency communication and coordination of their activities. An example of such
inter-agency coordination is the EPA, Bureau of Indian Affairs, Department of Housing and Urban
Development, and Indian Health Service Memorandum of Understanding signed in 1991. This
agreement details the respective authorities and responsibilities of each agency and highlights areas of
potential overlap. The MOU also establishes mechanisms for coordinating the priorities and actions of
the individual agencies. While this agreement is a good starting point for developing inter-agency
coordination, the signatory agencies need to increase their commitment to implementing this agreement.
Other examples where inter-agency coordination is necessary are the NRDAs administered by
the Department of Interior and the federal facilities managed by Department of Defense or Department of
Energy. EPA's role should be to coordinate and facilitate activities at these sites and promote tribal
consultation and involvement. Inter-agency coordination and communication regarding NRDA sites and
federal facility sites would enhance the protection of human health, the environment, and the culture of
tribes impacted by these sites.
V. Tribal Workgroup's Four Priority Recommendations
+ Increase funding for tribal Superfund programs and allocate this separately from state funding.
+ Develop tribal-specific Superfund training and increase training efforts.
+ Incorporate tribal cultural values into the Superfund program.
+ Advocate inter-agency coordination among agencies with environmental federal Trust
responsibilities.
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VI. Summary of Recommendations
Indicates activities that EPA can conduct under the current Superfund program.
* Indicates activities that require policy changes.
fr Indicates activities that require regulatory changes.
Indicates activities that require statutory changes to the Superfund program.
Assessing Readiness
Funding
Training
Regulatory
Capability
Program
Management
Site Identification
Capacity
Site Screening and
Prioritization
Capacity
Encourage tribes to build program capacity relevant to their individual needs and
priorities.
Use existing information to identify tribes with existing tribal capacity within each
EPA region.
Increase funding for tribes in the form of specific tribal funding that is allocated
separately from states.
Develop and apply for a class deviation from the 10% Core funding cost-share on
behalf of tribes.
Develop and provide a consolidated resource manual, Tribal Superfund
Orientation Manual, to all tribes.
Design a basic Superfund curriculum specifically for tribes.
Assist tribes in establishing codes and ordinances.
Streamline the issuance and administration of financial assistance.
Assist tribes in obtaining access to technical resources.
Assist tribes in developing tracking and notification systems for potentially
contaminated sites and hazardous substance releases.
Include tribes as partners in regional equipment-sharing arrangements and ensure
that tribes know how to access and use the equipment.
Provide tribal access to CLP laboratories.
Develop a screening and prioritization process that includes tribal cultural values.
Assist tribes in finding cleanup alternatives for sites that cannot be addressed
under the Superfund program.
Provide interested tribes with assistance to develop VCPs and Brownfields
programs.
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Short-term Action
Long-term Action
Emergency Planning
and Preparedness
Understanding Tribal
Governments
Inter-agency
Coordination
Improve tribal access to experts to assist in emergency situations or critical areas
where a tribe has not yet developed expertise.
Improve funding and ability for tribes to secure their own small, private
contractors.
Assist tribes in developing the capability to select remedies.
Ensure consultations and involvement with tribes throughout all long-term
actions, including the risk assessment process, that are conducted in Indian
country and in other areas where tribes are affected by the action.
Incorporate tribal concerns by integrating human health and ecological factors,
and cultural values in the risk assessment process, and modify EPA guidance
appropriately.
Consider potential damage to tribal cultural resources resulting from any remedial
action which may impact tribal lands.
Support tribes' role as an NRDA Trustee by promoting coordination with tribes
on any remedial action which may impact tribal lands.
Assess existing emergency response infrastructure within tribal communities
using existing regional information.
Assist tribes in developing a TERC/LEPC structure and applying for appropriate
grants.
Increase funding for CEPPO grants to tribes and support deviations and creative
solutions from the 25% in-kind matching contribution.
Offer a tribal cultural awareness and tribal-EPA government relations course to
Superfund staff.
Increase awareness of availability of information on tribal governments, treaties,
and activities to Superfund staff.
Revisit and frequently update any agreements that are established with tribes.
Increase commitment and efforts, at all levels within EPA, to enhance
communication and enact inter-agency agreements among federal agencies
working with tribes.
Please send comments to Boynton.Lisa@epamail.epa.gov or call (703) 603-9052
T-12
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VII. Conclusion
The tribal Workgroup's recommendations describe the actions that should be taken by EPA to
enhance the tribal role in Superfund. All of the recommendations can be implemented without a
statutory or regulatory change, which means that EPA could take immediate actions toward initiating this
proposal. When implementing these suggestions, regular consultation and collaboration with the tribes
will be essential.
Please send comments to Boynton.Lisa@epamail.epa.gov or call (703) 603-9052
T-13
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Appendix A: Readiness Modules
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When a state or tribe seeks to assume responsibility for Module 1: Identify and Screen Sites, then the
state or tribe should demonstrate capability (including legal authority) to carry out each activity in this
Module. In situations where the state or tribe cannot demonstrate capability, then it may be possible for a
state or tribe to reach an arrangement with its EPA region to divide work, as long as all of the Module's
activities are addressed. The state, tribe, and EPA region have a shared responsibility to ensure that all of
the program activities are completed.
Unless otherwise indicated, EPA may fund each activity described in this Module under the current
statute, regulations, and program. CERCLA §104(d) authorizes EPA to enter into cooperative
agreements (CA) with states and Indian tribes to carry out activities authorized by CERCLA §104. 40
CFR Part 35, Subpart O, codifies the requirements for Superfund CAs.
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-1
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miwjt>w]*' i^i^m^>m>wi/is^^'>«^^K^s^'^^fiK^fS'^^m»^^'w^ #*, m
SCREEN SITES (2 of 2)
1. Identify potentially contaminated sites.
A. Maintain a system for tracking newly discovered potentially contaminated sites.
B. Maintain a system for notification of a hazardous substance release.
2. Determine which of these sites should be added to a national inventory of
potentially contaminated sites (presently known as CERCLIS).1
A. Screen sites for inclusion in a national inventory of potentially contaminated sites. States
and tribes can provide the rationale.
B. Maintain an electronic system for tracking site identification, screening, and prioritization
data.
C. Refer sites not added to the national inventory to other programs for evaluation, when
appropriate.
D. Enter site information into a national inventory (presently known as CERCLIS)2 or
transmit site information to EPA for entry, as appropriate.
E. Obtain adequate PRP information as necessary.
40 CFR §300.5 defines CERCLIS as "...the CERCLA Information System, EPA's comprehensive
database and management system that inventories and tracks releases addressed or needing to be addressed by
the Superfund program. CERCLIS contains the official inventory of CERCLA sites and supports EPA's site planning
and tracking functions."
2 See footnote 1.
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-2
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>jr * rAND
r-*i
StTES (1
When a state or tribe seeks to assume responsibility ^for Module 2: Identify, Screen, and Prioritize
Sites, then the state or tribe should demonstrate capability (including legal authority) to carry out each
activity in this Module. In situations where the state or tribe cannot demonstrate capability, then it may
be possible for a state or tribe to reach an arrangement with its EPA region to divide work, as long as
all of the Module's activities are addressed. The state, tribe, and EPA region have a shared
responsibility to ensure that all of the program activities are completed.
Unless otherwise indicated, EPA may fund each activity described in this Module under the current
statute, regulations, and program. CERCLA §104(d) authorizes EPA to enter into CAs with states and
Indian tribes to carry out activities authorized by CERCLA §104. 40 CFR Part 35, Subpart O, codifies
the requirements for Superfund CAs.
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-3
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1. Identify potentially contaminated sites.
A. Maintain a system for tracking newly discovered potentially contaminated sites.
B. Maintain a system for notification of a hazardous substance release.
2. Determine which of these sites should be added to a national inventory of
potentially contaminated sites (presently known as CERCLIS).3
A. Screen sites for inclusion in a national inventory of potentially contaminated sites.
States and tribes can provide the rationale.
B. Maintain an electronic system for tracking site identification, screening, and
prioritization data.
C. Refer sites not added to national inventory to other programs for evaluation, when
appropriate.
D. Enter site information into a national inventory (presently known as CERCLIS)4 or
transmit site information to EPA for entry, as appropriate.
E. Obtain adequate PRP information as necessary.
3. Prioritize these sites among the state's or tribe's other CERCLA sites
competing for funding and other resources.
A. Prioritize sites for assessment. States and tribes can provide the rationale.
3 See footnote 1.
4 See footnote 1. ;
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 803-8817
App. A-4
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When a state or tribe seeks to assume responsibility for Module 3: Prioritize and Evaluate Sites for
Cleanup, then the state or tribe should demonstrate capability (Including legal authority) to carry out
each activity in this Module. In situations where the state or tribe cannot demonstrate capability, then
it may be possible for a state or tribe to reach an arrangement with its EPA region to divide work, as
long as all of the Module's activities are addressed. The state, tribe, and EPA region have a shared
responsibility to ensure that all of the program activities are completed.
Unless otherwise indicated, EPA may fund each activity described in this Module under the current
statute, regulations, and program. CERCLA §104(d) authorizes EPA to enter into CAs with states and
Indian tribes to carry out activities authorized by CERCLA §104. 40 CFR Part 35, Subpart O, codifies
the requirements for Superfund CAs.
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-5
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1. Prioritize these sites among the state's or tribe's other CERCLA sites
competing for funding and other resources.
A. Prioritize sites for assessment. States and tribes can provide the rationale.
2. Evaluate site comprehensively and determine what needs to be done
based on what is known about the site at the time. Determine the next
course of action (e.g., expedited action, design/long-term cleanup, and
the associated funding/resource/scheduling requirements).
A. Have the ability to conduct or contract the following activities, either through in-house,
private sector, or other state or federal agencies, when appropriate:5 (1) review historical
site records; (2) gain site access; (3) conduct site sampling; (4) analyze samples; (5)
review and interpret environmental/analytical data; (6) evaluate hydrology/geology; (7)
evaluate toxicological/health effects/ecosystem data; (8) complete report/case
preparation; and (9) conduct legal/case development.
If any of the above site assessment services are to be contracted, the state or tribe must
have appropriately trained personnel to provide oversight, product review, or third-party
verification of the assessment.
B. Have access to the requisite equipment to conduct the activities outlined in these criteria.
C. Have the capability to determine the need for, or appropriateness of, other actions, which
may include: (1) urgent evaluations and cleanups; (2) expedited evaluations and
cleanups; (3) enforcement actions; (4) long-term actions; (5) VCPs; and (6) Brownfields
programs.
D. Have the ability to provide adequate opportunity for meaningful community involvement
and notification.
It is not appropriate for contractors to perform inherently governmental functions (e.g., making cleanup
and enforcement decisions and deciding on a state's/tribe's priorities).
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-6
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' &,! P^ *&. T> **s t *^«"S-" ^ -s, V,
SITES f0Ft>CLEANU.P
<^2>" y^I: :'
When a state or tribe seeks to assume responsibility for Module 4: Prioritize and Evaluate Sites for
Cleanup and for Federal Eligibility, then the state or tribe should demonstrate capability (including
legal authority) to carry out each activity in this Module. In situations where the state or tribe cannot
demonstrate capability, then it may be possible for a state or tribe to reach an arrangement with its EPA
region to divide work, as long as all of the Module's activities are addressed. The state, tribe, and EPA
region have a shared responsibility to ensure that all of the program activities are completed.
Unless otherwise indicated, EPA may fund each activity described in this Module under the current
statute, regulations, and program. CERGLA §104(d) authorizes EPA to enter into CAs with states and
Indian tribes to carry out activities authorized by CERCLA §104. 40 CFR Part 35, Subpart O, codifies
the requirements for Superfund CAs.
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-7
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1. Prioritize these sites among the state's or tribe's other CE-RCLA sites
competing for funding and other resources.
A. Prioritize sites for assessment. States and tribes can provide the rationale.
2. Evaluate site comprehensively and determine what needs to be done
based on what is known about the site at the time. Determine the next
course of action (e.g., expedited action, design/long-term cleanup, and
the associated funding/resource/scheduling requirements).
A. Have the ability to conduct or contract the following activities, either through in-house,
private sector, or other state or federal agencies, when appropriate:6 (1) review historical
site records; (2) gain site access; (3) conduct site sampling; (4) analyze samples; (5)
review and interpret environmental/analytical data; (6) evaluate hydrology/geology; (7)
evaluate toxicological/health effects/ecosystem data; (8) complete report/case
preparation; and (9) conduct legal/case development.
If any of the above site assessment services are to be contracted, the state or tribe must
have appropriately trained personnel to provide oversight, product review, or third-party
verification of the assessment.
B. Have access to the requisite equipment to conduct the activities outlined in these criteria.
C. Have the capability to determine the need for, or appropriateness of, other actions, which
may include: (1) urgent evaluations and cleanup; (2) expedited evaluations and cleanup;
(3) enforcement actions; (4) long-term actions; (5) VCPs; and (6) Brownfields programs.
D. Have the ability to provide adequate opportunity for meaningful community involvement
and notification. ^
3. Have the means to evaluate sites for federal cleanup program eligibility.
A. Have the ability to apply a national system to identify federal priority sites. If support
services are to be contracted, the state or tribe will have appropriately trained personnel
to provide sufficient oversight, product review, and quality control of documentation.
(Current national system is the HRS.)
6 See footnote 5.
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-8
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When a state or tribe seeks to assume responsibility for Module 5: Conduct and Compel Urgent
Evaluation and Cleanup, then the state or tribe should demonstrate capability (including legal
authority) to carry out each activity in this Module. In situations where the state or tribe cannot
demonstrate capability, then it may be possible for a state or tribe to reach an arrangement with its EPA
region to divide work, as long as all of the Module's activities are addressed. The state, tribe, and EPA
region have a shared responsibility to ensure that all of the program activities are completed.
Unless otherwise indicated, EPA may fund each activity described in this Module under the current
statute, regulations, and program. CERCLA §104(d) authorizes EPA to enter into CAs with states and
Indian tribes to carry out activities authorized by CERCLA §104. 40 CFR Part 35, Subpart O, codifies
the requirements for Superfund CAs. Under the current Superfund program, short-term activities are
grouped into three categories: emergency, time-critical, and non-time-critical removals. Subpart O
restricts funding of state-lead short-term actions to non-time-critical removals (40 CFR §35.6200). On
a case-by-case basis, EPA may consider requests for a deviation from this restriction to allow a state or
tribe to carry out emergency or time-critical actions (40 CFR §35.6025). The Readiness Workgroup,
using generic terminology, classified short-term actions into either urgent or expedited
evaluations/cleanups.
Definition
Urgent responses.stabilize, reduce, or eliminate immediate threats and/or imminent hazards to human
health and property or the environment quickly.
Assumptions
In addition to the Readiness Workgroup's assumptions (see pages 2 and 3, Chapter 1: Readiness
Recommendations), another assumption of this Module is to provide PRPs the opportunity to undertake
cleanups within appropriate time constraints. Further, urgent responses will receive priority attention
from states and tribes.
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App. A-9
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1. To conduct an urgent evaluation and cleanup, the state oir tribe should
undertake the following activities.
A. Secure site access.
B. Identify and evaluate site contaminants.
C. Undertake initial evaluation to determine hazards present, including the ability to
evaluate potential human health and ecological risks.
D. Manage and oversee contractors, if appropriate.7
E. Ensure tracking and management of hazardous substance(s).
F. Make field decisions as site conditions warrant.
G. Address ecological impacts.
H. Coordinate with initial site responders/fire/police, etc. (e.g., Incident Commander under
the Unified Command System).
I. Have specialized urgent response training (e.g., expertise in responses addressing
biological threats, such as ricin).
J. Determine response objective and response action.
K. Monitor/undertake follow-up evaluation to determine if response objective was achieved.
L. Conduct initial PRP search, if practicable, during site evaluation period.
M. Enter into agreements with PRPs to perform urgent evaluations and cleanups.8
N. Issue administrative orders or obtain judicial documents (e.g., warrants, requests for
information, administrative orders for access or urgent evaluations and cleanups).9
7 See footnote 5.
8 For the purposes of this matrix, any enforcement authorities used by the state or tribe under the current
program should be state enforcement authorities. PRP response actions should be conducted under state or tribal
oversight.
9 See footnote 8.
Please send comments to Frey.Sharon@epamail.epa.gov or call (702!) 603-8817
App. A-10
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C&NDUCT^Cr COMPEtWftfeiwIiALU^f ION
O. Compel PRPs to perform urgent evaluations and cleanups (e.g., legal orders, fines).10
P. Manage and oversee PRPs.
Q. Take over PRP-lead urgent evaluations and cleanups (includes access to and availability
of legal resources, dollars).
R. Assess or seek penalties for non-compliance with cleanup orders.11
S. Recover costs associated with conducting urgent evaluations and cleanups.
T. Determine if additional work is necessary.
10
11
See footnote 8.
See footnote 8.
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-11
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When a state or tribe seeks to assume responsibility for Module 6: Conduct and Compel Expedited
Evaluation, then the state or tribe should demonstrate capability (including legal authority) to carry out
each activity in this Module. In situations where the state or tribe cannot demonstrate capability, then
it may be possible for a state or tribe to reach an arrangement with its EPA region to divide work, as
long as all of the Module's activities are addressed. The state, tribe, and EPA region have a shared
responsibility to ensure that all of the program activities are completed.
Unless otherwise indicated, EPA may fund each activity described in this Module under the current
statute, regulations, and program. CERCLA §104(d) authorizes EPA to enter into CAs with states and
Indian tribes to carry out activities authorized by CERCLA §104. 40 CFR Part 35, Subpart O, codifies
the requirements for Superfund CAs. Under the current Superfund program, short-term activities are
grouped into three categories: emergency, time-critical, and non-time-critical removals. Subpart O
restricts funding of state-lead short-term actions to non-time-critical removals (40 CFR §35.6200). On
a case-by-case basis, EPA may consider requests for a deviation from this restriction to allow a state or
tribe to carry out emergency or time-critical actions (40 CFR §35.6025). The Readiness Workgroup,
using generic terminology, classified short actions into either urgent or expedited evaluations/cleanups.
Definition
Expedited actions provide risk reduction and can include containment and reduction of direct exposure
to risk. Site conditions are such that planning time is limited before a response action needs to be taken
to mitigate threats posed by the site. In general, expedited actions will be based upon considerations of
current land use, but may also consider future land use. Such actions may be interim actions or may
constitute the final cleanups. Expedited actions can be conducted by states, tribes, or private parties.
Assumptions
In addition to the Readiness Workgroup's assumptions (see pages 2 and 3, Chapter 1: Readiness
Recommendations}, the preference is that PRPs will still be leading the majority of the cleanup work.
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-13
-------
1. To conduct an expedited evaluation, the state or tribe should undertake
the following activities.
A. Secure site access.
B. Undertake initial site evaluation to determine hazards present.
C. Evaluate site for health and ecological risks.
D. Identify and evaluate site contaminants.
E. Compare/rank the site with others in the state's or tribe's jurisdiction and place site in
the funding queue, if appropriate. Determine the urgency of site actions.
F. Enter into agreements with PRPs to perform expedited evaluations.n
G. Issue administrative orders or obtain judicial documents (e.g., warrants, requests for
information, administrative orders for access or expedited site evaluations).13
H. Compel PRPs to perform expedited site evaluations (e.g., legal orders).14
I. Assess or seek penalties for non-compliance with orders for expedited site evaluations.15
J. Take over PRP-lead expedited site evaluations (includes access and availability of legal
resources, dollars).
K. Manage and oversee PRPs.
L. Determine if additional work is necessary.
M. Recover costs associated with conducting expedited site evaluations.
12 See footnote 8.
13 See footnote 8.
14
15
See footnote 8.
i
See footnote 8.
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-14
-------
When a state or tribe seeks to assume responsibility for Module 7: Conduct and Compel Expedited
Cleanup, then the state or tribe should demonstrate capability (including legal authority) to carry
out each activity in this Module. In situations where the state or tribe cannot demonstrate
capability, then it may be possible for a state or tribe to reach an arrangement with its EPA region
to divide work, as long as all of the Module's activities are addressed. The state, tribe, and EPA
region have a shared responsibility to ensure that all of the program activities are completed.
Unless otherwise indicated, EPA may fund each activity described in this Module under the
current statute, regulations, and program. CERCLA §104(d) authorizes EPA to enter into CAs
with states and Indian tribes to carry out activities authorized by CERCLA §104. 40 CFR Part 35,
Subpart O, codifies the requirements for Superfund CAs. Under the current Superfund program,
short-term activities are grouped into three categories: emergency, time-critical, and non-time-
critical removals. Subpart O restricts funding of state-lead short-term actions to non-time-critical
removals (40 CFR §35.6200). On a case-by-case basis, EPA may consider requests for a deviation
from this restriction to allow a state or tribe to carry out emergency or time-critical actions (40
CFR §35.6025). The Readiness Workgroup, using generic terminology, classified short actions
into either urgent or expedited evaluations/cleanups.
Definition
Expedited actions provide risk reduction and can include containment and reduction of direct
exposure to risk. Site conditions are such that planning time is limited before a response action
needs to be taken to mitigate threats posed by the site. In general, expedited actions will be based
upon considerations of current land use, but may also consider future land use. Such actions may
be interim actions or may constitute the final cleanups. Expedited actions can be conducted by
states, tribes, or private parties.
Assumptions
In addition to the Readiness Workgroup's assumptions (see pages 2 and 3, Chapter 1: Readiness
Recommendations), the preference is that PRPs will still be leading the majority of the cleanup
work.
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-15
-------
ISEEffl.
"T*
1. To conduct an expedited cleanup, the state or tribe should undertake the
following activities, when appropriate.
A. Develop appropriate engineering documents.
B. Determine site cleanup levels.
C. Issue the appropriate decision document that includes appropriate supporting
documentation.
D. Implement short-term action per engineering documents.
E. Manage and oversee contractors, if appropriate.16
F. Ensure tracking and management of hazardous substance(s).
G. Make field decisions as site conditions warrant.
H. Notify appropriate Natural Resources Trustees.
I. Address ecological impacts.
J. Undertake follow-up evaluation, which may include sampling to determine whether
cleanup levels were achieved, and/or an evaluation of site risks as necessary.
K. Assure ability to obtain site access agreements/real estate easements as required.
L. Conduct PRP search during site evaluation period.
M. Draft and send PRP notice letters in a timely fashion.
N. Enter into agreements with PRPs to perform expedited cleanups.17
O. Issue administrative orders or obtain judicial documents (e.g., warrants, requests for
information, administrative orders for access or expedited cleanups).IK
16 See footnote 5.
17 See footnote 8.
See footnote 8.
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-16
is
-------
rCONDUCXAND-COMft^^^
fatasi/- '.xX"'";^' -;'*':r
P. Compel PRPs to perform expedited cleanups and post-cleanup site monitoring and
evaluation (e.g., legal orders).19
Q. Assess or seek penalties for non-compliance with orders for expedited cleanups.20
R. Take over PRP-lead expedited cleanups (includes access to and availability of legal
resources, dollars).
S. Manage and oversee PRPs.
T. Recover costs associated with conducting expedited cleanups.
U. Determine if additional work is necessary.
V. Have the legal authority, infrastructure, and resources to acquire property or property
interests to enable, for example, site access.21
X. If federal dollars or CERCLA enforcement authorities are used to conduct temporary
relocations, the Uniform Relocation Act (URA) and the implementing regulations should
be followed as guidance in furnishing relocation benefits.
19 See footnote 8.
20 See footnote 8.
21 Under CERCLA §1040), EPA cannot acquire property without an assurance from the state in which the
property is located that the state will accept transfer of the property following completion of the remedial action (or
earlier if agreed to in writing by EPA and the state). CERCLA §1040(3) exempts any state which acquires property
in this manner from CERCLA liability. The liability provision provided under CERCLA §104(j)(3) may not apply when
a state acquires property directly; however, a state or tribe which directly acquires property may still have a third-
party defense from CERCLA liability as long as all conditions for this type of defense are met pursuant to CERCLA
§107(b)(3) and §101(35)(A).
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-17
-------
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":..
, fHE Sljt^B WNGKTERM ACTJON
* -* ^ if'^ >^ <* - ' * '
«** >-,v<
^ !?
When a state or tribe seeks to assume responsibility for Module 8: Characterize, or Compel the
Characterization of, the Site for Long-term Action, then the state or tribe should demonstrate capability
(including legal authority) to carry out each activity in this Module. In situations where the state or
tribe cannot demonstrate capability, then it may be possible for a state or tribe to reach an arrangement
with its EPA region to divide work, as long as all of the Module's activities are addressed. The state,
tribe, and EPA region have a shared responsibility to ensure that all of the program activities are
completed.
Unless otherwise indicated, EPA may fund each activity described in this Module under the current
statute, regulations, and program. CERCLA §104(d) authorizes EPA to enter into CAs with states and
Indian tribes to carry out activities authorized by CERCLA § 104. 40 CFR Part 35, Subpart O, codifies
the requirements for Superfund CAs.
Definition
Long-term actions are technically complex and take a long time to study and/or remediate. They also
consider risks reduced as a result of expedited activities (where applicable) and consider future land
use.
Assumptions
In addition to the Readiness Workgroup's assumptions (see pages 2 and 3, Chapter 1: Readiness
Recommendations), the preference is that PRPs will still be leading the majority of the cleanup work.
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-19
-------
1. Fully characterize the site for long-term cleanup action.
A. Possess the technical expertise and ability to characterize the nature, extent and risk of
contamination, and assess sites adequately for development of cleanup alternatives.
B. Have access to the equipment necessary to conduct sampling and field screening and
analysis for site characterization.
C. Have access to laboratory analysis necessary to support toxicity evaluation in the risk
assessment (e.g., leaching test, toxicity testing).
2. State or tribe should have the legal authority to:
A. Enter into agreements with PRPs to perform investigations.22
B. Issue administrative orders or obtain judicial documents (e.g., warrants, requests for
information, administrative orders for access or investigations).23
C. Compel PRPs to perform investigations (e.g., legal orders).24
D. Assess or seek penalties for non-compliance with orders for investigations.25
E. Take over PRP-lead investigations (includes access to and availability of legal resources,
dollars).
F. Manage and oversee PRPs.
G. Recover costs associated with investigations.
H. Create and maintain document history to support long-term actions for administrative and
judicial purposes.
22 See footnote 8.
23 See footnote 8.
24 See footnote 8.
25 See footnote 8.
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-20
-------
, SELECT, AND/C0MPEJL LONO-
'
When a state or tribe seeks to assume responsibility for Module 9: Identify, Evaluate, Select, and
Compel Long-term Cleanup Actions, then the state or tribe should demonstrate capability (including
legal authority) to carry out each activity in this Module. In situations where the state or tribe cannot
demonstrate capability, then it may be possible for a state or tribe to reach an arrangement with its EPA
region to divide work, as long as all of the Module activities are addressed. The state, tribe, and EPA
region have a shared responsibility to ensure that all of the program activities are completed.
Unless otherwise indicated, EPA may fund each activity described in this Module under the current
statute, regulations, and program. CERCLA §104(d) authorizes EPA to enter into CAs with states and
Indian tribes to carry out activities authorized by CERCLA §104. 40 CFR Part 35, Subpart O, codifies
the requirements for Superfund CAs.
Definition
Long-term actions are technically complex and take a long time to study and/or remediate. They also
consider risks reduced as a result of short-term activities (where applicable) and consider future land
use as well.
Assumptions
In addition to the Readiness Workgroup's assumptions (see pages 2 and 3, Chapter 1: Readiness
Recommendations'), the preference is that PRPs will still be leading the majority of the cleanup work.
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-21
-------
1. Identify and evaluate potential cleanup actions.
A. Develop cleanup goals that are protective of human health and the environment.
B. Identify and evaluate cleanup alternatives, and determine which are reasonably likely to
achieve the cleanup goals established, considering the hazardous materials present,
media contaminated, site characteristics, technical implementability, and cost
effectiveness.
C. Identify a cleanup plan alternative which achieves the cleanup goals that are cost
effective and protective of human health and the environment over the long term.
D. Have access to the equipment necessary to conduct treatability studies as appropriate.
2. Select cleanup action.
A. Have the ability to conduct analyses that compare the most appropriate cleanup
alternatives.
B. Have the ability to select an implementable cleanup plan that is projected to be cost
effective and protective of human health and the environment over the long term.
3. State or tribe should have the legal authority to:
A. Enter into agreements with PRPs to perform identification and evaluation of
alternatives.26
B. Issue administrative orders or obtain judicial documents (e.g., warrants, requests for
information, administrative orders for access or identification and evaluation of
alternatives).27
C. Compel PRPs to perform identification and evaluation of alternatives (e.g., legal
orders).28
D. Assess or seek penalties for non-compliance with identification and evaluation of
alternatives.29
E. Take over PRP-lead identification and evaluation of alternatives (includes access to and
availability of legal resources, dollars).
F. Manage and oversee PRPs.
26 See footnote 8.
27 See footnote 8.
28 See footnote 8.
29 See footnote 8.
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-22
-------
EVALUATE* SIEtlCJ,:A|ID'GOMPEl
3f 1 "? " >;
G. Recover costs associated with identification and evaluation of alternatives.
H. Create and maintain document history to support long-term actions for administrative and
judicial purposes.
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-23
-------
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GQMPELpNQVfiRM
'
C"^»
^"
3)
When a state or tribe seeks to assume responsibility for Module 10: Design, Implement, and Compel
Long-term Cleanup, then the state or tribe should demonstrate capability (including legal authority) to
carry out each activity in this Module. In situations where the state or tribe cannot demonstrate
capability, then it may be possible for a state or tribe to reach an arrangement with its EPA region to
divide work, as long as all of the Module's activities are addressed. The state, tribe, and EPA region
have a shared responsibility to ensure that all of the program activities are completed.
Unless otherwise indicated, EPA may fund each activity described in this Module under the current
statute, regulations, and program. CERCLA §104(d) authorizes EPA to enter into CAs with states and
Indian tribes to carry out activities authorized by CERCLA §104. 40 CFR Part 35, Subpart O, codifies
the requirements for Superfund CAs.
Definition
Long-term actions are technically complex and take a long time to study and/or remediate. They also
consider risks reduced as a result of short-term activities (where applicable) and consider future land
use as well.
Assumptions
In addition to the Readiness Workgroup's assumptions (see pages 2 and 3, Chapter 1: Readiness
Recommendations), the preference is that PRPs will still be leading the majority of the cleanup work.
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-25
-------
1. Design and implement site cleanup.
A. Have a design or cleanup strategy that is technically sound and that is consistent with the
cleanup goals.
B. Have the ability to implement the site cleanup per the design or cleanup strategy. (A
state or tribe may not proceed with a Fund-financed remedial action unless EPA has first
concurred in and adopted the remedy selection decision (40 CFR § 300.515(e)(ii)).
C. Have the ability to make field decisions as site conditions warrant while maintaining the
overall integrity of the cleanup.
D. Have access to any construction equipment necessary to implement cleanup.
E. Have access to the equipment necessary to conduct treatability studies as appropriate.
F. Have the ability to implement a legal control or administrative means (e.g., institutional
controls) of limiting exposure to hazardous materials to levels consistent with cleanup
goals, and reduce future risk at a site from changes in site use.
G. Have the legal authority, infrastructure, and resources to acquire properties or property
interests to enable, for example, permanent relocations and site access.30
2. State or tribe should have the legal authority to:
A. Enter into agreements with PRPs to design and implement cleanup.31
B. Issue administrative orders or obtain judicial documents (e.g., warrants, requests for
information, administrative orders for access or design and implemeititation of cleanup).32
C. Compel PRPs to design and implement cleanup (e.g., legal orders).33
D. Assess or seek penalties for non-compliance with design and implementation of cleanup
orders.34
E. Take over PRP-lead design and implementation of cleanups (includes access to and
availability of legal resources, dollars).
30 See footnote 21.
31 See footnote 8.
32 See footnote 8.
33 See footnote 8.
34 See footnote 8.
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-26
-------
|MPLEMENJ;,AND^MP|L LpN<|-TERM
F. Manage and oversee PRPs.
G. Recover costs associated with the design and implementation of cleanups.
H. Create and maintain document history to support long-term actions for administrative
and judicial purposes.
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-27
-------
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COR»plLP^St-GLlEANUP
When a state or tribe seeks to assume responsibility for Module 12: Conduct and Compel Post-cleanup
Monitoring and Evaluation, then the state or tribe should demonstrate capability (including legal
authority) to carry out each activity in this Module. In situations where the state or tribe cannot
demonstrate capability, then it may be possible for a state or tribe to reach an arrangement with its EPA
region to divide work, as long as all of the Module's activities are addressed. The state, tribe, and EPA
region have a shared responsibility to ensure that all of the program activities are completed.
Unless otherwise indicated, EPA may fund each activity described in this Module under the current
statute, regulations, and program. CERCLA §104(d) authorizes EPA to enter into CAs with states and
Indian tribes to carry out activities authorized by CERCLA §104. 40 CFR Part 35, Subpart O, codifies
the requirements for Superfund CAs.
Definition
Long-term actions are technically complex and take a long time to study and/or remediate. They also
consider risks reduced as a result of short-term activities (where applicable) and consider future land
use as well.
Assumptions
In addition to the Readiness Workgroup's assumptions (see pages 2 and 3, Chapter 1: Readiness
Recommendations'), the preference is that PRPs will still be leading the majority of the cleanup work.
Please send comments to Frey.Sharon@epamail.epa.gov or call (703) 603-8817
App. A-29
-------
LPQSt
! -^(hPSMIh
(2 Of 2)
1. Post-cleanup site monitoring and evaluation goals.
A. Have the ability to conduct appropriate operation and maintenance (O&M) activities to
ensure effectiveness of long-term actions. (For Fund-financed remedial actions, states
and tribes are responsible for funding and conducting all O&M activities (CERCLA
§104(c)(3)).
B. Have the ability to determine when the cleanup goals as stated in the cleanup plan have
been met.
C. Have access to any construction equipment necessary to implement post-cleanup site
monitoring and evaluation. (For Fund-financed remedial actions, states and tribes are
responsible for funding and conducting all O&M activities (CERCLA §104(c)(3)).
2. State or tribe should have the legal authority to:
A. Enter into agreements with PRPs to perform post-cleanup site monitoring and
evaluation.35
B. Issue administrative orders or obtain judicial documents (e.g., warrants, requests for
information, administrative orders for access or performing post-cleanup site monitoring
and evaluation).
C. Compel PRPs to perform post-cleanup site monitoring and evaluation (e.g., legal
orders).36
D. Assess or seek penalties for non-compliance with post-cleanup site monitoring and
evaluation orders.37
E. Take over PRP-lead post-cleanup site monitoring and evaluation (including access to and
availability of legal resources, dollars).38
F. Recover costs associated with post-cleanup site monitoring and evaluation.
G. Manage and oversee PRPs.
H. Create and maintain document history to support long-term actions for administrative or
judicial purposes.
35 See footnote 8.
36 See footnote 8.
37 See footnote 8.
38 See footnote 8.
Please send comments to Frey.Sharon@ep.amail.epa.gov or call (703) 603-8817
App. A-30
-------
Appendix B: OSWER Training Database
And Videotape Inventory/National
Enforcement Training Institute Training
Courses
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Training Courses
Site Identification. Screening, and Prioritization
Applied Statistics and Ecology
Biohazard Awareness
Exploring Rangeland Ecosystems
Introduction to Human Health and Ecological Risk Assessment for Site Managers
ASTSWMO Inspector Training
Advanced Groundwater Investigations
Chemical Safety Audits (165.19)
Data Quality Objectives
Ecological Risk Assessment Training
Ecological Risk Assessment for Superfund
Ecological Risk Characterization
Ecological Risk and Decision Making
Field-Based Site Characterization Technologies Workshop (CEC)
Fundamentals of Radiation for Environmental Professionals
Groundwater Investigations
Groundwater Association
Groundwater Contamination
Groundwater Hydrology and Behavior of Contaminants in the Subsurface
Groundwater Sampling
Hazard Ranking System (HRS)
Hazard Ranking System (HRS) Documentation Record
Hazardous Waste Identification
Introduction to Groundwater Investigations (165.7)
Introductory Federal Facility Preliminary Assessment Training
Introductory Federal Facility Preliminary Site Inspection Training
Introductory Preliminary Assessment Training
Introductory Site Inspection Training
Nonaqueous Phase Liquids in the Subsurface
Risk Assessment Guidance for Superfund (165.6)
Risk and Decision-Making
Sampling for Hazardous Materials (165.9)
Soil Sampling and Quality Assurance for Superfund
Subsurface Modeling
Short-Term Action Activities
RCRA Hazardous Waste Incinerator Inspection Workshop; 2 Parts
Basic Incineration and BIF Permitting
Chemical Emergency Preparedness and Prevention
Emergency Response to Hazardous Material Incidents (165.15 Training)
First Responders/Awareness Level
Please send comments to Biggs.Kirby@epamail.epa.gov or call (703) 308-8506
App. B-1
-------
Hazardous Materials Incident Response Operations (165.5)
Hazardous Waste Incineration
Hazardous Waste Incinerator/Inspection Manual
Incident Command/Unified Command
Incinerator Inspection Workshop
Inland Oil Spills (165.18)
Permit and Interim Status
Radiation Safety at Superfund Sites (165.11)
Remedial Process (CEC)
U.S. EPA Emergency Response Capabilities
Long-Term Action Activities
Air Monitoring for Hazardous Materials (165.4)
Boilers and Industrial Furnaces
Burning of Hazardous Waste in Boilers and Industrial Furnaces (BIF) Rule
Closure/Post Closure
Containers
Containment Buildings
D.O.E. Land Disposal Restrictions Video Course
Decontamination Course
Definition of Solid Waste and Hazardous Waste Recycling
Designs for Air Impact Assessments at Hazardous Waste Sites
Federal Facility Remediation (CEC)
Groundwater Monitoring
Groundwater Research/Education - Geology
Hazardous Waste Tanks
Innovative Treatment Technologies (CEC)
Innovative Treatment Technologies Short Course (CEC)
Land Disposal Units
Managing Environmental Problems at Metals Mine Site
Municipal Solid Waste Disposal Facility Criteria
Natural Attenuation Short Course
Past Clean-Up Options
Pine River Used Oil Recycle Program
Public Involvement Workshop
RCRA Ground Water Monitoring
Recycling (secondary students)
Removal Cost Management System (165.17)
Removal Process (CEC)
Solid Waste Disposal Criteria (long and short versions)
Tank Talk
Treatment Technologies Overview for Management
Treatment Technologies for Superfund (165.3)
Treatment, Storage, and Disposal Facilities
Please send comments to Biggs.Kirby@epamail.epa.gov or call (703) 308-8506
App. B-2
-------
Enforcement
OSWER Training Database
Basics of the Endangered Species Act
Environmental Dispute Resolution
NEPA and Clean Air Act, Section 309 Review
Pollution Prevention Training for Enforcement and Compliance Officers
ARD Case Evaluation/Mediation Demonstration
Advanced Removal Enforcement Workshop
An Agenda for Action
Attack on Hazardous Waste: Challenge of the 80's
Enforcement Process Overview (CEC)
Generators
Identification of Environmental Crimes
Introduction to Superfund Enforcement
Land Disposal Restrictions (with Manual)
Land Disposal Restrictions
Land Disposal Restrictions (LDR) Enforcement Training: Interactive Computer Program
Land Disposal Restrictions Workshop
Libby Groundwater- (See CERCLA- Superfund)
New Superfund Attorney Orientation
OSC Warrant Authority Training (CEC)
Other Laws that Interface with RCRA
RCRA Corrective Action
RCRA Enforcement and Compliance
RCRA Statutory Overview
RCRA Subtitle 1: Underground Storage Tanks
National Enforcement Training Institute
Air Training
Air Inspector/Source Specific Inspection/Case Worker Training (Basic, Intermediate, Advanced)
AIRS Input and Reporting Training
ACTS/NARS Training
CARB: Mock Trial Enforcement Symposium
CAA Field Citations
Case Support Training
ABEL
Alternative Dispute Resolution
BEN
SEP Policy Training - Classroom Format
Basic Inspector Course
Interviewing Techniques for Regulators
Negotiations Skills Training (NEEP)
Please send comments to Biggs.Kirby@epamail.epa.gov or call (703) 308-8506
App. B-3
-------
Negotiations Skills Training (SEEN)
Administrative Enforcement and Case Development
Financial Analysis - Module 1 and Intermediate Ability to Pay
Basic Training in Court Room Procedures
Intermediate Ability to Pay Course
Financial Analysts' Workshop
Negotiation Skills - Advanced
PROJECT - SEP Training
Skills Development in the Negotiation of RCRA/CERCLA Disputes
Administrative Hearings and Trials Training
Interviewing and Interrogation Techniques (MEEA)
Advanced Administrative Practice Institute
Pleading and Litigating Civil Penalties
Advanced Interviewing and Interrogation Workshop (MEEA)
MUNIPAY
INDIPAY
SEP Policy Training - Video Format
Negotiations Skills (Basic) - Video Format
Compliance Assistance Training 12
Compliance Assistance via Electronic Resources
Pollution Prevention for Enforcement and Compliance Officers
Criminal Enforcement Training 13
Environmental Crimes Awareness
International Association of Chiefs of Police Environmental Crimes Training Conference
Basic Criminal Environmental Investigations (MEEA)
Basic Environmental Enforcement Training (NEEP)
Environmental Investigations - Basic
Basic Environmental Investigations Training (WSP)
OCEFT/DOJ Training Conference
CID/SAC Conference
Criminal Enforcement Counsel Training Conference
Criminal Investigator Training Program
Basic Environmental Investigations Training (SEEN)
Environmental Crimes Awareness for Local Law [Enforcement (MEEA)
Introduction to Clandestine Drug Laboratory Enforcement (MEEA)
Technical Personnel Training Program
Advanced Environmental Crimes Training Program
Basic Environmental Crimes Investigations (SEEN)
Environmental Crimes Instructor Training Program
EPA Special Agent In-Service Training
Prosecuting Environmental Crimes (SEEN)
Environmental Crimes Prosecution Orientation (WSP)
Environmental Enforcement Training
Advanced Environmental Investigative Operations Training Program
Please send comments to Biggs.Kirby@epamail.epa.gov or call (703) 308-8506
App. B-4
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Environmental Justice Training 17
EJ Seminar Series I - Legal Tools for Environmental Justice
EJ Seminar Series II - Community Outreach Public Participation Model
EJ Seminar Series JH - Science and Environmental Justice
EJ Seminar Series IV - Focusing on Environmental Justice Solutions
Federal Agency/Facility Training 18
Endangered Species
NEPA/309
Overview of Cross-Cutter Statutes and Executive Orders
FIFRA Training 18
PREP: Compliance Management Part 1
FIFRA/TSCA Tracking System (FTTS) Training
Case Development Training for FIFRA/TSCA/EPCRA
PREP: Compliance Management Part n/HJ
PREP: Senior Comprehensive Course
Pesticide Product Enforcement Course
Use Enforcement Course (Workers Protection Standards)
Strategies for Managing Pesticides
Pesticides and Water Quality
PREP: Senior Comprehensive Course (Refresher)
Information Management Training 20
IDEA Basic Training
IDEAWin for the New User
DOCKET/Case Conclusion Data Sheets
IDEA Advanced Training
IDEAWin for the Experienced User
International Training 20
Hazardous Waste Compliance Monitoring for Customs and Environmental Inspectors
Principles of Environmental Compliance and Enforcement
Field Investigations Sampling and Laboratory Analysis for Mexican Inspectors
Conducting Multimedia Inspections
Principles of Environmental Impact Assessment
Border Interdiction
Multi Statute Training 22
Multimedia Inspections
Multimedia Training for Regulators (MEEA)
Advanced Multimedia Course for Regulators (NEEP)
Please send comments to Biggs.Kirby@epamail.epa.gov or call (703) 308-8506
App. B-5
-------
Oil Pollution Act Training 23
Spill Prevention, Control and Countermeasures (SPCC) Inspector Training
! I
RCRA Training 23
RCRA Inspector Institute - Basic
RCRA Inspector Institute - Advanced
RCRA Enforceabality of Regulations
RCRA Enforcement Practitioners Workshop
Comprehensive Ground-Water Monitoring Evaluation (CME) Inspection Training - CBT
Suoerfund (CERCLA) Training 24
CERCLA Education Center - Fundamentals of Superfund
CERCLA Education Center - The Enforcement Process
New Attorney Orientation Training - Superfund
Introduction to Superfund Enforcement - CBT
TSCA Training 25
Lead Based Paint Real Estate Notification and Disclosure Rule for Investigators
Water Training 25
Permit Compliance Data System (PCS) Basic Training
Clean Water Act (CWA) Penalty Policy
EDI DMR Implementation for Trading Partners
NPDES Minimum Program Specific Inspector Training
Pretreatment Compliance Inspection Training
Sanitary Survey Training for Inspectors of PWS
NPDES Performance Audit at Biomonitoring Laboratory
Diagnostic Compliance Inspection Training
EDI DMR Implementation for EDI Coordinators
PCS Advanced Generalized Retrieval
PCS QNCR Training
Other Training Opportunities
Regional Review Interview Training
New Directions in the Enforcement and Compliance Assurance Program
Financial. Administrative. Etc.
ADR Tools for Environmental Professionals
Advanced ADR Methods and Applications
Bank Card and Call Ordering Officer Training (CEC)
CERCLIS 3 Training for Headquarters
CERCLlS 3 Training for Regions
CERCLIS/WasteLAN Case Budget Overview
Coaching Skills for Managers and Supervisors
Contract Administration Training for Supervisors and Managers
Please send comments to Biggs.Kirby@epamail.epa.gov or call (703) 308-8506
App. B-6
-------
Contract Administration for Project Officers
Effective Leadership Skills
Empowerment
Financial Assurance
Fundamentals of Superfund
Health and Safety Plan Workshop (165.12)
LandView H (Software) NB: (Self-taught)
LandView n
Leadership: Attitude, Function, and Style (CEC)
Local Government Reimbursement
Partners in Change...Labor and Management Working Better Together
Permit Writer's Training Manual
RCRIS Implementation Training
RCRIS Instructional Series
Safety and Health Decision-Making for Managers (165.8)
Superfund Public Participation: Tools and Skills for Site Teams
The Quality Course - TQM Building Blocks for Successful Environmental Management
What You Don't Know Can Hurt You - (EPA Teleconference)
Wood Preserving Rule Training Course
Working Together: Managing Cultural Diversity
Workshop on Risk and Decision-Making
Miscellaneous
Air Emissions Standards
Drip Pads
Introduction to Borehole Geophysics
Introduction to Environmental Geophysics (165.20)
Introduction to Magnetics
Miscellaneous and Other Units
Orientation to Quality Assurance Management
RCRA Orientation Manual - 1990 Edition
RCRA State Programs
Response Action Contract User
Rocky Mountain Arsenal: Miscellaneous Slides
STIR Slide Show
Solid Waste Programs
Solid and Hazardous Waste Inclusions
TOMES Training
Training Program on Small Quantity Generators
Transporters
Used Oil
Please send comments to Biggs.Kirby@epamail.epa.gov or call (703) 308-8506
App. B-7
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General Courses
Team Building
The Art of Communicating
The Business of Listening
The Confident Women
The Procrastination Cure
Coaching and Counseling
How to Make Presentations with Confidence and Power
How to Manage Priorities and Deadlines
How to Master Your Time
How to Supervise People
The Seven Habits of Highly Effective People - Covey
Time Management Plus
Principle-Centered Leadership
Quality Customer Service
Attitude: Your Most Priceless Possession
VIDEOTAPES
Site Identification. Screening, and Prioritization
ARCHIE: Animated Resource for Chemical Hazard Incident Evaluation
Accidents Will Happen
Alabama Oil Burn
Alert 3, The Crash of UAL Flight 232
Awareness for Initial Response to Hazardous Materials Incidents
Chemical Emergency Preparedness Program: Title HI
Chemical Emergency Preparedness Program: Title ffl
Conceptual Approach for Characterizing Problems at Hazardous Waste Sites
Consortium on Oil Spill Training
Contingency Planning at the Spill
Developing a Comprehensive HazMat Exercise Program
Dioxin Destruction, EPA, Ecology, and Environment
First on the Scene
Haz Mats! - Case Studies for Emergency Responders
HazMat Response, Parts 1 & 2 CDC #0454,0455
Hazard Analysis Presentation (Bill Finan)
Hazardous Materials Clean-Up in West Jordan
Hazardous Waste Operations and Emergency Response
Hazmat Contingency Planning Course - Part 1; Parts 1 & 2
Hydrogeology Lecture with Dr. Benjamin Ross
Hydrogeology Lecture; EPA RFI Training
Introduction to Surface and Borehole Geophysics
Management Strategies for Small Quantity Generators
Please send comments to Biggs.Kirby@epamail.epa.gov or call (703) 308-8506
App. B-8
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National Fire Protection Association Training Program on Small Quantity Generators
Navajo Vats n - English Version
Navajo Vats-English Version
Physical Modeling of Fuel Leaks in Simulated Underground Environments
Program 5 - Fall 1994 Response and Removal Regions 6, 8, & 9.
Region in Emergency Response Exercise-1995
Region HI Emergency Response Exercise-1995
Summitville Early Action
Technologies for Remedial Response
Technology for the Environment: High Temperature Hazardous Waste Incineration
Short-Term Action Activities
A Conceptual Approach for Characterizing Problems at Hazardous Waste Sites
A Question of Risk
Discovery and Initial Evaluation
Health and Safety for UST Workers
How to Make a Hazardous Waste Determination
Inspector Training Manual: ASTSWMO
Introduction to Groundwater Contamination
Introduction to Superfund Training
Investigation and Clean-Up of Wood Treatment Sites
Jim Knoy at Limon Elavator Initial Site Visit, Emergency Response
LCP Chemical Site
LDR Video Course (3 volumes); Note: See Also RCRA; LDR
Leaking Underground Storage...Little Timebombs Ticking
Petroleum Leaks Underground
RA/RD
RCRA Analytical Strategies and Methods
RCRA Inspector Training
RCRA Inspector Workshop
RCRA Orientation
RCRA Orientation
RCRA Orientation Course
RCRA Orientation Program
RCRA Overview
Rocky Flats Radiological Risk Assessment, Sessions 1&2
STI-P3 Cathodic Protection Monitoring
Sampling Ground Water and Hydrocarbons Without Wells
Sampling Techniques
Sampling Techniques
Sampling Technologies
Sampling Strategies
Site Access Problem
Site Assessment Training (With Handbook)
Site Program (6 Technology Demonstrations)
Please send comments to Biggs.Kirby@epamail.epa.gov or call (703) 308-8506
App. B-9
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Site Programs (4 Technology Demonstrations)
Soil Gas Monitoring; EPA RFI Training
Soil Gas Monitoring
Straight Talk on Leak Detection
Superfund Innovative Technology Evaluation Program: HAZCON/ Solidification Demo
Superfund Innovative Technology Evaluation Program: Shirco
Superrund Innovative Technology Evaluation Program: Solidtech
Superfund Innovative Technology Evaluation Program: TTUSA Technology
Superfund Site Assessment Screening: A National Priority
Superfund Site Exercises: Practice Makes Perfect
Tank Closure Without Tears: An Inspector's Safety Guide
Tank Tips
Use of CIS for Hazardous Waste Site Characterization
What Do We Have Here? (Site Assessment at Tank Closure)
What Do We Have Here? An Inspector's Guide to Site Assessment at Tank Closure
!
Long-Term Action Activities
Air Monitoring at a Waste Facility in Utah
American Barrel: Barrel Removal
Basic Groundwater Hydrology
Bingham Creek Soil Clean-up
Boiler Chemical Cleaning Waste Management at LRS
Boiler Chemical Cleaning
Boiling Liquid Expanding Vapor Explosion (BLEVE)
Divex Response and Removal Action
Drum Site
Effective Management of USTs
Hazardous Waste Incinerator Inspection
Hazardous Waste Management; Methods
High Temperature Hazardous Waste Incinerators
Monitoring Well Installation
Remedial Investigation
Removal
Sand Creek Remedial Action Kickoff
Superfund in Action-LaSalle (HI.) PCB Clean-Up
Tank Closure Without Tears
The Solid Waste Problem: Anaerobic Conversion, an Option for Reduction
Toxicity Characteristic Leaching Procedure (Method 1311)
Utilization of Chemical Protective Equipment for Decontamination Procedures
Wood-Treatment Site Cleanup
i
Please send comments to Biggs.Kirby@epamail.epa.gov or call (703) 308-8506
App. B-10
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Enforcement
BIF Teleconference #3: Enforcement Overview and Inspections
CERCLA Enforcement Process Satellite Training Course
Kitchens of Death
Kitchens of Death (Law Enforcement Version)
Keeping it Clean: Making Safe and Spill-Free Motor Fuel Deliveries
Land Disposal Regulations (BETA)
Land Disposal Restrictions Conference Call for DOE
Land Disposal Workshop
Liability Scheme and PRP Identification
Personal Protection and Safety
Protective Actions for HazMat
RCRA: What Is, Who Is Regulated, What are the Sources?
Settlements and Cost Recovery
The New RCRA (Teleconference-2 volumes)
The New RCRA/Hazardous and Solid Waste Amendments of 1984
The New RCRA: Teleconference
The Plating Industry & RCRA Compliance
Administrative. Financial. Etc.
ASTSWMO Inspector Training; RCRA Units 1-12
BIF Teleconference #1: Course Introduction: Overview of Regulations and Permitting
BIF Teleconference #2: Technology Overview
Beyond Business as Usual: Meeting the Challenge of Hazardous Waste
Community Relations Skills Training
Cost Control Manual for Superfund Removals
EPA Announces Program to Revitalize Superfund (10/2/91)
EPA Superfund Community Relations Training - Success Stories (Vanessa Musgrave)
EPA Superfund Community Relations - Media Relations
EPA Training Video: Angry Citizens Town Meeting
First National Outdoor Action Conference on Aquifer Restoration, Groundwater Monitoring, and
Geophysical Methods
Ground Water Information Transfer
Groundwater Information Transfer - Series n (Geology)
Hazardous Substance Research Center Program Procedure (Method 1311)
Innovations in Management
Permit Writer's Training Manual (with manual)
Permit Writer's Training Manual - Chapters 1-7 - ASTSWMO
Registrar Master Software Demo
Resource Conservation and Recovery Act Overview
Seymour, Indiana: Profile of a Hazardous Waste Clean-Up
Succeed by Listening
Successful Stress Control
Please send comments to Biggs.Kirby@epamail.epa.gov or call (703) 308-8506
App. B-11
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Superfund Community Relations Training (Lee Thomas)
T3 Video Conference
TAGs (technical Assistance Grants)
Technical Assistance Grant (TAG) Training
Technology Update ISV
The Art of Influencing People Positively
The Five Star Communicator
The Five Star Leader
The Five Star Motivator
The Five Star Team Builder
The Technology Transfer Electronic Bulletin Board System
This is Superfund
This is Superfund (English and Spanish Versions)
Toxic Chemicals: Information is the Best Defense
Toxic Chemicals: Information is the Best Defense Part n
U.S. EPA: For the Health of It-Small Quantity Generators
U.S. EPA "An Intro to Superfund Training" with William K. Reilly
Understanding Title HI: Emergency Planning and Community Right to Know
Waste Management
Watching Your Waste
We Recycle the Earth
What It Means to You
When the Siren Sounds
Why Waste a Second Chance? (Adults)
Women and Negotiation
Wonderful World of Recycle
Wood Preserving Rule Satellite Training Course
Worker Protection Standards
Miscellaneous
72 Hours
A Question of When
A Recollection of Milling and Smelting, Midvale, Utah
A Toast of Water
Air Lecture: RFI Training
Aircheck 4
Arctic Refuge
Arsenic Trioxide and Superfund Site
BBF Teleconference - 1992
BIF Teleconference Technology Overview
BNFL - Who Cares
BNFL: Building the Future
Basket Creek
Bayou Bonfouca
Benzene, Toluene, and Xylene
Please send comments to Biggs.Kirby@epamail.epa.gov or call (703) 308-8506
App. B-12
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Big Apple, Hot Apple
Bingham Creek
Boom Deployment
Burning Question: The Poisoning of America (Hugh Downs, 9/8/88)
Changing Skylines
Changing Skylines: The Garbage Crisis
Chemical Safety
Chlor-Detect Field Kit
Cleanup by the CRV
Completing the Recycling Cycle
Concern for the Future
Dangerous Mines
Deadline on D: A Landfill Update
Doing it Right
Doing it Right H
Going it Right and Doing it Right n
Down in the Dumps (for schools)
EPA Billings, Mont., Table Top Exercise: Table Top 1&2
EPA Recycling Event
EPA Sampling Technologies
EPA's Eye in the Sky
Earthquake 101 Training Vols. 1 and 2
Eight Lessons in Dealing with a Hostile Crowd
Enpro Consulting Group
Environmental Defense Fund, WAVE Announcements
Environmental News Response Video: News Magazine #4; Winter 1994
Environmental News Response Video: News Magazine #6; Fall 1995
Environmental News Response Video: News Magazine #7; Spring 1996
Environmental Response, Programs 2 and 3
Equipment Training
Explosives and Reactives
FEMA - Hurricane Hugo in the Virgin Islands
Gas Tanks and Gargoyles
Greenpeace: The Rush to Burn
HSCR Program Infomercial
Handling Hazardous Waste Program - Unit 5; Lab Packing
Hazardous Waste: "From Cradle to Grave"
Hazardous/ Radioactive Waste Management Promotional Tape
How Clean is the Rocky Mountain Arsenal?
How the Waste was Won
How the Waste was Won (high school to adult)
How to Become an Effective Listener
How to Manage Time
I Need the Earth; the Earth Needs Me
In Your Own Backyard
Interaction with Other Laws
Please send comments to Biggs.Kirby@epamail.epa.gov or call (703) 308-8506
App. B-13
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Lawyers and Technical Staff: Making the Case for Superfund
Less is More: Pollution Prevention is Good Business
Let's Make a Difference (plastics)
Libby Groundwater, Libby Mountain, a Success Story
Limon Elevator
Loraine County Pesticide Removal Site
Lowry Landfill: A Closer Look
Lustbusters
Management and Leadership Skills for Women
Manufacturing Sciences Tour-Central Avenue NCPP Building Surveys
Manufacturing Sciences: Exotic Metals Processing
Minnesota Public Hearing
Monsanto Wrap-Up
Montana DBS: Derailment Disaster, Helena, MT., 2/2/89
Montana Post and Pole Groundwater Treatment Facility
Non-Verbal Communication - How to Read Body Language
North Dakota Arsenic Trioxide Superfund Site
Operation Border Crossing
Operation Clean Sweep - Presentation by Sandy Friedman, El Paso
Operation Diamond Head
Operation Golden Isle n
Operation Inland Response
Operation Wildfire
Overview of Superfund
PM Magazine - TES Course
Participation, Partnerships, Protection: Local Governments and Superfund
Petroleum Fire
Poison in the Rockies
Professional Displays Training Video
Public Hearing for Proposed Sand Creek Clean-Up Alternatives - Commerce City Hall
Quiet Steel: Our Energy Lifeline
RCRA Public Involvement
RCRIS National Teleconference
RFI Training-Air Lecture
RFI Training-Soil Gas Monitoring
RMA Contamination Containment
RMA Groundwater Treatment Systems
RMA: Submerged Quench Incinerator
RMA: Submerged Quench Incinerator Tour
RMA: Wildlife Reserve
RREL/RCB Research Programs
Recycling Campaign: Air, Trees, Product, Rocektman
Recycling: Once is Not Enough
Responsibility and Organization for Response
Rest In Peace
Rockett Ambassador Consumer Video
Please send comments to Biggs.Kirby@epamail.epa.gov or call (703) 308-8506
App. B-14
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Rocky Mountain Arsenal
Rocky Mountain Arsenal: Hard Choices Ahead
Sand Creek Organic Chemicals
Sand Creek Superfund Site
Searching for the Honest Tank: A Guide to UST Facility Compliance Inspection
Searching for the Honest Tank
Shelter in Place
Stapleton Airport Fire
Street Stories - Kids and Lead
Summitville '93: Superfund Early Action at Summitville Mine
Summitville Mine
Superfund Seniors
Swimming in Sewer (NOVA)
Swimming in Sewers
Tank Car Safety Course
The Klein Water Treatment Facility
The LRT Device
The Lowry Landfill: A Closer Look
The Rush to Bum
The Solid Waste Problem
The Winning Team
The Wonderful World of Recycle
Tire Fires
Tire Fires: A Burning Issue
Trash Can Inquisition
U.S. EPA Region VI Oil Pollution Prevention
Working Fire (1994)
Yak Water Plant
Please send comments to Biggs.Kirby@epamail.epa.gov or call (703) 308-8506
App. B-15
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Appendix C:
Basic Superfund Curriculum
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Appendix C: Basic Superfund Curriculum
The following is a list of courses that the Tribal Workgroup deemed essential as a basic
background for tribal Superfund staff. All of the courses have been offered through regional offices, the
CERCLA Training Center, or contractors. However, the courses will need to be modified to incorporate
tribal perspectives and concerns.
CERCLA Orientation
Contract Management
Grants/Cooperative Agreement Management
Introduction to Superfund Enforcement
Project Management
Regulation Writing
40-Hour Health and Safety and 8-Hour Refresher
Public Participation
Preliminary Assessment/Site Inspection Training
Hazardous Ranking System
Quality Assurance Project Plan/Data Quality Objectives/Quality Assurance Management Plan
Sample Taking
Eco-Assessment
Risk Communication
Risk Assessment
SARA Title HI 101
Please send comments to Boynton.Lisa@epamail.epa.gov or call (703) 603-9052
App. C-1
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Appendix D: SMC Issue Discussion
Summaries
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i , ' , .!!
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SMC Issue Discussion Summaries
The SMC held four meetings and several conference calls to provide executive input during the
course of the Enhanced State and Tribal Role in Superfund Initiative. Below is a summary of the
discussions that helped frame the approach taken on several issues by the LIT and the four
workgroupsReadiness, Assistance, Agreements, and Tribal.
What Is the Planning Context of this Initiative?
Characterizing the planning context of the initiative was the primary topic of discussion during
the initial SMC meeting in November 1996. The basic issue was whether the initiative should be
undertaken within the context of the current CERCLA statutory and regulatory framework or whether it
should anticipate statutory change that would provide for a greater role by states and tribes.
Several SMC members felt that the focus should be on the current law. They felt that because
the current law was not considered to be a significant constraint to providing authority to states and
tribes, the workgroups should design recommendations that could be implemented under the current law.
Other SMC members, particularly state representatives, did not want to limit thinking and
recommendations to the current legal framework. They felt that looking at the possibilities of a new law
that would grant states and tribes a greater role in Superfund would prepare the program for future
statutory scenarios. However, state representatives did not want their participation or support for this
initiative to be misconstrued as a position on reauthorization.
The SMC reached consensus by deciding that the initiative should address both the present and
the future statutory and regulatory framework. With concurrence from the Assistant Administrators of
OSWER and OECA, the SMC instructed the LIT and workgroups to approach this effort with open
minds, neither constrained by the current law/regulations or anticipating any specific future framework
(delegation or authorization). In making recommendations, the LIT agreed to identify whether given
recommendations could be accomplished at present, or whether a statutory or regulatory change would be
required.
The Need for Flexibility
The need for flexibility was raised frequently and by nearly all SMC members. Flexibility is
considered necessary because state and tribal programs and priorities change over time; each state and
tribe has unique characteristics that will affect implementation, and the needs of each state and tribe are
different. SMC members asked the workgroups to develop a flexible program structure that would
accommodate changing state and tribal priorities and programs. SMC members also wanted to ensure
that the workgroups take into account the individual nature of state budgets, legislation, organization, and
site problems. However, state- and tribal-specific interests also need to be balanced with the need for
broadly applicable criteria that states and tribes can be expected to meet. Ideally, a flexible framework
that enables the maximum number of states and tribes to meet program criteria and produces consistent
end-results should be established.
Please send comments to Evans.David@epamail.epa.gov or call (703) 603-8885
App. D-1
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Are There Basic Elements or Standard Principles for Response?
Consistent with the desire for flexibility, SMC members agreed that the federal interest should be
focused on end-results. However, some standardized elements for Superfund responses and response
programs would still be necessary. Specific elements of the program that should be considered to be
included are:
f Community involvement;
+ Protectiveness of remedies;
4 Adequate staffing/expertise and resources;
4 State approval and oversight of the response;
4 Enforcement/compliance assurance authorities; and
+ Liability and cost recovery provisions similar to CERCLA's, providing for enforcement
"fairness," ensuring timely response actions, and verifying cleanup completion according
to performance measures.
i
Because the development of capabilities is not dependent solely on the availability of resources,
resource availability should not be used on its own as a program element for evaluating states and tribes.
SMC members also agreed that when federal site-specific resources are involved, the requirements would
need to be more specific. The SMC endorsed the Readiness Workgroup's plans to develop performance-
based criteria for Superfund program elements.
What Is the Universe of Sites with a Federal Interest?
SMC members discussed what should be considered as the universe of sites where there should
be federal involvement, and whether there are some sites where no federal involvement should occur.
Under present law, the federal government must be involved in all NPL site responses and take the lead
at federal removal action sites. EPA involvement is also possible for sites that are considered a high
priority for NPL listing upon completion of a site inspection. However, there is no EPA involvement
(beyond site assessment) in the majority of sites included in the CERCLIS inventory, and there is
minimal or no EPA involvement in the broader universe of sites that are not in CERCLIS.
All SMC members agreed that low-risk sites with no unusual circumstances or community
demand are not federal interest sites. However, consensus was not reached among SMC members on
when federal interest would be appropriate at higher-risk sites."Many EPA members believed that sites
with HRS scores that would qualify them for the NPL were a high enough risk to incur federal interest.
In such cases, EPA's involvement would vary from reviewing the program to leading the response
actions, depending on the state's or tribe's readiness and terms of program agreements. State members
expressed concern that federal interest might result in independent EPA response and/or enforcement
actions that could undermine state or tribal programs.
Please send comments to Evans.David@epamail.epa.gov or call (703) 603-8885
App. D-2
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How Does Federal Involvement in Response Vary?
During the January 1997 SMC meeting, members addressed how the level of federal involvement
may vary depending on the type of site and the capability of the state or tribe. SMC members generally
agreed that there should be an inverse relationship between the capability of a state or tribe and the level
of EPA involvement. Also, the complexity of the site (from either a response or enforcement standpoint)
may be an important variable.
Many members felt that while there is a federal interest in the highest-risk sites, the level of EPA
involvement might vary significantly. For example, EPA may take the lead responsibility for higher-risk
sites in state or tribal lands where the state or tribe has a low level of readiness. EPA's involvement may
be minimal for high-risk sites when the state or tribe has a high level of readiness. An objective and
collaborative assessment of a state's or tribe's readiness should be the basis for determining EPA
involvement. EPA involvement may include:
4 Requested assistance and program-level review for the states and tribes with the highest
levels of readiness.
4 Technical and managerial assistance, support agency site review/oversight, or direct EPA
response and enforcement for states and tribes with less developed programs.
Comments from individual SMC members that highlight the vision of how federal involvement
will vary include the following:
4 Rather than putting in place abstract or generalized decisions or rules, it is preferred that
EPA and states and tribes negotiate partnership agreements that provide for either EPA
or the state or tribe to take the lead at given sites. These decisions would be reached by
considering resources, capabilities, and the most efficient division of labor.
f States understand that EPA will have greater interest/involvement in sites perceived to
have a higher risk. The framework for involvement must provide for a full range of
options on a state-by-state, tribe-by-tribe, site-by-site basis, in the context of a dynamic
situation.
4 For the next several years, even in cases of the most highly capable states and tribes, it
seems prudent to proceed under a division-of-labor model to address high-risk sites.
This is in contrast to scenarios where (1) EPA disengages from all site-specific
involvement, or (2) EPA continues to be involved in a detailed oversight mode with
state- or tribal-lead responses.
4 Site risks are a factor in deciding EPA's involvement, but other factors are also relevant;
among these are cultural, social and economic factors and local community impacts and
interests.
+ Over time, as a state or tribe gains experience and demonstrates capability, EPA
oversight and involvement should decrease.
Please send comments to Evans.David@epamail.epa.gov or call (703) 603-8885
App. D-3
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Who Determines Federal Involvement?
The SMC discussed how federal involvement will be determined and what control states and
tribes will have over the extent of federal involvement. There was general agreement that the level of
EPA involvement in a site should be determined by consultation and collaboration to reach mutual
agreement with the state or tribe. If a state or tribe wants assistance, EPA should offer as much help as
resources will permit to conduct responses. If a state or tribe requests to conduct a site's response or
enforcement action independently, then EPA should limit its involvement as much as possible, unless it
is apparent that human health and/or the environment will not be protected by the state's or tribe's
actions. All SMC members agreed that while EPA must be able to act independently, its involvement in
a state- or tribal-lead site could not be justified by professional difference of opinion about a site's
response, but required when human health and/or the environment are not being protected or an imminent
threat exists. However, there was no consensus about how to determine when EPA should become
involved or fairly implement federal involvement.
What Models Are There for EPA-State and EPA-Tribal Interaction?
SMC members discussed current models for state-EPA interaction. These models include site-
specific and multi-site CAs, Core Program CAs, VCP MOUs, and Superfund State MO As. In 1996,
regional Superfund policy managers proposed new program agreements that divided the universe of sites
and provided States the opportunity to lead new responses. The proposed agreements also provided for
EPA technical assistance and state reporting. A few agreements currently exist that were the result of
this proposal.
SMC members favored broad, encompassing agreements between EPA and states or tribes that
cover the full range of contaminated site cleanups. The SMC endorsed the Agreements Workgroup's
plan to develop a proposed model program agreement with standardized components that could be
customized to individual regional, state, or tribal needs.
i
Some members of the SMC also recommended using a collaborative process for developing
state- or tribal-specific operating plans to provide for the efficient use of joint state and EPA resources.
Members also considered research on the possibility of partnership agreements without a formal
"delegation/authorization" application and approval process.
What Considerations Are Specific to Tribal Programs?
I
During the May 1997 SMC meeting, there was a focused discussion on unique considerations for
enhancing the role of tribes in the Superfund program. The SMC endorsed the Tribal Workgroup's
efforts to develop customized recommendations that address the unique needs of tribes for enhancing
their role in Superfund. Highlights of that discussion follow:
+ It is important to simplify and clarify communication materials and administrative
requirements with tribes, as the technical aspects of EPA's programs are a major hurdle
for many tribes. This points to the critical need for much training and assistance to
Please send comments to Evans.David@epamail.epa.gov or call (703) 603-8885
App. D-4
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enhance tribal capabilities. Federal agency hands-on assistance via IPAs could be very
helpful.
4 A fundamental issue is the federal government's trustee responsibility that flows from
treaties. EPA must look out for the interests of tribes in Superfund decisions.
+ Tribes want to be in control of site assessment decisions and provide strong input to site
response decisions. Tribal cleanup standards can be more demanding than either EPA or
state cleanup requirements.
4 Management assistance is a critical need for developing tribal programs. Tribes face
significant hurdles prior to conducting technical field work. Among these are
understanding how to address administrative needs for EPA assistance and receiving the
needed technical training. EPA historically provided .management assistance
reviews/training to states, and this helped prepare states for potential financial audits^
The same could be done for developing tribal programs.
4 Consider targeting a part of the national removal budget to address sites of priority to
tribes that may not be of high priority to the national Superfund program.
4 EPA needs to consider and understand that tribes view environmental problems
differently than EPA and states do. The compartmentalization of programs is not
understood by tribes; a "loosening" of the bounds of the use of Superfund resources for
tribes should be considered. NRDA prohibitions are a particular concern.
4 EPA should consider the possibility of retaining the federal lead for sites that impact
tribal lands and resources directly. EPA may want to negotiate site-specific agreements
with states and tribes for these sites.
What Issues Link Enforcement and Funding?
During the May 1997 meeting, the SMC discussed how EPA's enforcement policies would be
implemented by states and tribes, and how enforcement activities were linked to decisions on the Use of
federal Superfund response funds.
Some SMC members expressed concern whether the enforcement first and fairness policies
applied by the Federal government would be continued by states or tribes if states or tribes have authority
to obligate remedial action funding. Members discussed the importance of developing lists of agreed-to
orphan sites, PRP-lead sites, and the "enforcement possibility" sites. After agreeing to these lists of sites,
the EPA-state or EPA-tribe dialogue about funds management would focus on sites with potential for
enforcement.
Some specific comments from SMC members follow:
4 The negotiation with PRPs and decision to Fund-finance a response are critically linked.
Enforcement is an integral aspect of the response program, not a separate capability.
EPA needs to consider and evaluate what enforcement capabilities are needed to
successfully implement given aspects of the response program.
4 There is an important link between cost-recovery capability and Fund-financed response
actions. It is unlikely that the federal government will be entirely comfortable with states
Please send comments to Evans.David@epamail.epa.gov or call (703) 603-8885
App. D-5
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making cost-recovery "deals" (e.g., settle for 50 cents on the dollar). The Department of
Justice (DOJ) is reluctant to allow EPA to make such decisions.
+ State members said they envision that EPA would retain enforcement discretion prior to
Fund-financed remedial action. This is consistent with discussions with the ASTSWMO
Board of Directors at its April 1997 meeting.
+ When considering access to Superfund response funding, how to address cases where a
state that does not have the same liability standard as federal Superfund will need to be
considered. There was a suggestion that before accessing the federal funds (remedial
action), states would need to match the federal liability approach.
+ EPA needs to be prepared to face criticisms of inconsistency in funds management as
states take on new responsibilities in this area; there are already concerns with just 10
EPA Regions making these decisions.
4 The following conceptual approach for enforcement/funds-management was discussed:
I
1. Are there PRPs? How and when can they be sought? Statute of limitation
considerations must be addressed.
2. Negotiating with PRPs:
A. Cooperative PRP: no issues (no need for Fund-financing)
B. Hard Negotiations: EPA involvement/state consultation needed
Compromising on federal costs
DeMinimis/DeMicromis settlements
Municipal liability
Unilateral administrative orders (all or some parties)
Orphan share funding
Mixed funding settlements
3. Fund-lead response actions: site-specific prioritization vs. state allocations
4. Cost recovery: Key questions are (1) who conducts cost recovery, (2) how hard must
cost recovery be pursued, and (3) who has the authority to compromise federal
costs.
The SMC asked that existing workgroup members form a focus group to give greater attention to
these issues. SMC members agreed with the Assistance Workgroup's recommendation that remedial
action funding would continue to be allocated based on decisions by a national priority panel, while
states and tribes would have some discretion on funding allocations for pre-construction activities.
Who Are the Stakeholders?
The SMC discussed the target audience and timing of a stakeholder review of the report's
recommendations. Initially, a broad variety of groups were identified, including:
' (
States: ASTSWMO CERCLA Subcommittee and Co-Implementation Task Force, National
Association of Attorneys Generals, National Governors Association, and Environmental
Commissioners.
Please send comments to Evans.David@epamail.epa.gov or call (703) 603-8885
App. D-6
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Federal: All regions, other federal agency Superfund contacts, DOJ, and some Congressional
staff.
Tribal: National Tribal Environmental Committee, Tribal Operations Committee, National
Congress of American Indians, Tribal Consortia/Tribes with Superfund programs, Inter-Tribal
Consortia of Arizona, and EPA's American Indian Environmental Office.
Environmental Groups: Natural Resources Defense Council, Environmental Defense Fund.
Industry: Chemical Manufacturer's Association, International Network on Superfund
Settlements.
Local/Others: National Environmental Justice Action Committee, International County and
City Manager's Association.
Please send comments to Evans.David@epamail.epa.gov or call (703) 603-8885
App. D-7
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Appendix E:
Membership List
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Appendix E: Membership List
Annabelle Allison
Terry Ayers
Rick Bean
Ray Beaumier
Gary Behrns
Kirby Biggs
John Blanchard
David Bloom
Lisa Boynton
Susan Bromm
Chris Burford
Angelo Carasea
George Carpenter
Everett Chavez
Dan Chellaraj
Fred Corey
Robin Coursen
Cal Curington
Glenn Curtis
Elaine Davies
Pat DeRosa
Charlie De Saillian
Nick DiPasquale
Carolyn Douglas
Charlene Dunn
Bruce Engelbert
Dave Evans
Laura Fay
Valerie Ferry
Ken Fisher
Schatzi Fitz-James
Sean Flynn
Crystal Ford
Sharon Frey
Lisa Friedman
Ted Garcia
Lois Gartner
All Indian Pueblo Council
Illinois
Kansas
Ohio
Missouri
OERR
OERR
OFCO
OERR
OECA
Umatilla Tribes
OERR
Michigan
All-Indian Pueblo Council
OERR
Aroostoock Band of Micmac Indians
Region 8
USAGE
Region 7
OERR
North Carolina
New Mexico (AG Office)
Delaware
Region 9
OSWER
OERR
OERR
Ohio
Mashantucket Pequot Tribal Nation
OERR
OERR
FFRRO
OERR
OERR
OGC
All Indian Pueblo Council
CIOC
App. E-1
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Mark Giesfeldt
Kent Gray
Pat Gwin
Susan Hanson
Phyllis Harris
Jim Havard
Tessa Hendrickson
Hobby Hevewah
Juline Holleran
Mike Hurd
Sheila Igoe
Ken Jock
Dick Kalnicky
Anne Kelly
Sheila Kelly
Jim Konz
Karen Kraus
Ken Kryszczun
PatMariella
Dan Marsin
Dee Maxey
Clara Mickles
Jim Morton
Walter Mugdan
Bill Muno
Bob Myers
Peter Neves
Bruce Nicholson
Craig Olewiler
Jerry Pardilla
Leslie Peterson
Susan Prout
Rey Rivera
Howard Rubin
Rich Sandberg
Mike Sanderson
Chuck Sands
Ann Sasahara
Wisconsin
Utah
Inter-Tribal Environmental Council
Shoshone-Bannock Tribes
Region 4
OGC
OSRE
Shoshone-Bannock Tribes
Minnesota
OERR
OGC
St. Regis Mohawk
Wisconsin
Region 2
FFRRO
OERR
OGC
Region 3
Gila River Indian Community
Gila River Indian Community
Region 5
AIEO
New York
Region 2
Region 5
OERR
OECA, OSRE
North Carolina
Pennsylvania
National Tribal Environmental
Council
i
Region 2
Region 5
Region 5
OSRE
Minnesota
Region 7
OERR
Navajo Nation
App. E-2
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Baerbel Schiller
Rich Schlenker
Randy Smith
Peter Tsirigotis
Victoria van Roden
Helen Waldorf
Ernie Watkins
Brenda Wingate
Jim Woolford
Felicia Wright
Renne Wynn
Linda Yancey
Karen Yeates
Bill Zobel
Region 7
Nebraska
Region 10
OSRE
OECA
Massachusetts
OERR
Region 3
FFRRO
OERR
OERR
GAD
Region 5
OERR
App. E-3
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United States
Environmental Protection Agency
(5204G)
Washington, DC 20460
Official Business
Penalty for Private Use
$300
First Class Mail
Postage and Fees Paid
EPA
G-35
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