UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
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APR 2 3 1992
OFFICE OF
SOLID WASTE AND EM6RGENCV RESPONSE
OSWER DIRECTIVE 9355.2-02
MEMORANDUM
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SUBJECT:
FROM:
TO;
Guidance on Lead Determinations For CERCLA
Fund-Financed Responses
Henry L. Longest II, Director
Office of Emergency and Remedial
nse
Directors, Waste Management Division
Regions I, IV, V, VII, VIII
Director, Emergency and Remedial Response Division
Region II
Directors, Hazardous Waste Management Division
Regions III, VI, IX
Director, Hazardous Waste Division
Region X
Purpose
This Directive describes the recommended process and factors
for use by Regional Offices in determining the capability of
States to accept lead agency responsibility for CERCLA Fund-
financed response actions. Regions should include reference to
this Directive in their annual or other notifications to the
State of planned Fund-financed response activities.
1The policies set out in this memorandum are intended solely
for the guidance of Government personnel. They are not intended,
nor can they be relied upon to create any rights enforceable by any
party in litigation with the United States. EPA officials r.ay
decide to follow the guidance provided in this memorandum, or to
act at variance with the guidance, based upon an analysis cf
specific site circumstances. The Agency also reserves the right tc
change this guidance at any time without public notice.
2This Directive applies to CERCLA Fund-financed nor.-
enforcement National Priorities List sites, referred to hereafter
as "Fund-financed sites." States' capabilities for lead, and the
lead determination processes, at enforcement and Fund-finaneri
sites may be different. Consequently, this Directive address
only the latter.
Printer
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site take into consideration the views of both EPA and of the
concerned State, and that they represent the most efficient use
of both State and Federal resources in carrying out CERCLA's
intent. Section 300.505(d)(1) of the National Contingency Plan
calls for annual planning discussions in which EPA and the States
determine priorities and designate lead responsibilities for
responses to be conducted during the upcoming year. Those
discussions should include at least preliminary assignment of
lead responsibility to either EPA or the State. This decision
can and should be reviewed during each year's planning
discussions, as well as whenever either party believes it to be
appropriate, such as when new information calls into question the
continued validity of previous assumptions or findings. Where
possible, it will usually be desirable to maintain project
continuity by having the lead agency retain that role throughout
the Fund-financed portion of the response action, e.g., to have
the agency which leads the Fund-financed RI/FS retain the lead
through completion of and Fund-financed RD/RA. Lead changes are
potentially disruptive and expensive, especially during an
ongoing phase of response; any such changes will require close
coordination between EPA and the State in order to minimize this
potential.
It is important to note that the lead designation does not
mean that the State may select the remedy without EPA
concurrence. At all Fund-financed sites, EPA must approve the
proposed plan and Record of Decision before issuance, although
the State may recommend the remedy. Sjse NCP, 40 CFR
300.515(e)(1). The cooperative agreement must reflect EPA's
approval role.
The decision process is not intended to be paper-intensive,
and should not require or result in voluminous documentation.
Once the Region has conducted the analysis, those for subsequent
sites generally will need to consider only changes in the State's
circumstances in the intervening time. Agreement that the State
will take the lead for a given response should be documented in a
transmittal letter to the State affirming that the factors
described below have been satisfactorily addressed.
As States continue to develop their programs, they are
likely to seek greater involvement at NPL sites. The States are
likely to vary in the kinds and amounts of experience they are
able to demonstrate, with many having relatively new programs.
An approach that phases in State lead responsibility over time
may permit such States to demonstrate their performance in future
years. This could be especially helpful to a State without a
track record or to one which has encountered problems.
Factors
The Region's analysis of a State's capability should
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generally include three areas of the State's program: (1) Project
Management, Scheduling and Tracking; (2) Resources/Skill Mix; and
(3) Past Performance. Decisions on lead should also consider
appropriate site-specific problems, issues, and circumstances.
(1) Project Management. Scheduling and Tracking; States
should describe and explain their process for ensuring
adequate supervision of the response action. Their ability
to commit to and meet schedules is especially important, as
this issue has typically been the most common and prominent
source of Regional Office concern with State-lead work. It
is crucial that the Region and State develop a clearly
understood, realistic, and mutually satisfactory project
schedule, including procedures and timetables for approval
of all decision documents. Discussions with the State must
therefore address the State's mechanism for ensuring it can
meet that schedule. Ideally, these discussions will be held
prior to the establishment of SCAP targets. At a minimum,
discussions should verify:
o Agreement on a realistic overall project schedule to be
incorporated into the Region's SCAP commitments;
o Adequate statutory authority to carry out necessary
activities; and,
o The existence of a mechanism/process for: monitoring
the status of the project, including interim milestone
tracking; the early identification and resolution of
issues both internally and between the State and EPA;
financial tracking; and, quarterly reporting.
(2) Resources and Skill Mix; Decisions on lead
responsibility should be made in light of current and
anticipated workload in both the State and Regional offices.
There is no mandatory or standard workload/staff ratio for
workload distribution among EPA or State staff. Areas
reviewed with the State should include the availability of
appropriate professional skills, whether State employees or
contracted staff. EPA and the State should assess and agree
on the kind, level, and number of staff needed for the
response activity under discussion. The Region's analysis
is intended to reveal whether EPA or the State is better
able to accept the lead for a given response, and that the
lead agency's existing workload does not already preclude
successful completion of the additional response action. At
a minimum, discussions should verify:
o The number, type, skill mix, and expertise of staff
and/or contractor support required to manage and
supervise the project (including adequate field
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oversight) based upon site complexity, community
interest, workload distribution,and site specific
considerations;
o For actions which require procurement of contractor
services:
— A procurement system which results in timely
solicitation and award of remedial contracts?
— A well-defined process/procedure for monitoring
and evaluating contractor performance and taking
corrective action; and,
— A process for ensuring the reasonableness of
contractor costs (e.g., government cost estimates,
cost and price analyses), and for managing change
orders;
o The capability for data validation and for QA/QC of
sampling and analysis documents;
o Access to adequate legal support;
o The ability to compile and maintain the administrative
record; and,
o The capability to carry out proper community
relations/information activities.
(3) Past Performance: The quality, cost, and timeliness of
the State's previous work should be useful predictors of the
State's work on new activity. Discussion of the State's
previous performance should also identify improvements or
changes the State has made where they have had any problems.
At a minimum, discussions should verify:
o The quality of the State's past work products as a
demonstration of the technical ability of State staff;
o The ability to realistically plan projects and to
adhere to schedules; where slippage has occurred there
has been justification;
o State recommendations, decisions and approaches have
been not inconsistent with the NCP;
o The ability to complete projects within planned
budgets; where budgets have been exceeded there has
been justification for the additional costs;
o The quality and timeliness of both the compilation and
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maintenance of the administrative record;
o The quality and timeliness of quarterly and other
required reporting under the regulations governing
cooperative agreements;
o The ability to effectively manage contracts, as
evidenced by the timeliness of contract awards and
quality of oversight of the contractors' work efforts;
o The effectiveness of State/EPA communications and
working relationships; and,
o Where deficiencies were noted in work products or
approaches, timely and effective corrective steps were
taken.
(4) Site-Specific Factors: Lead assignments should
consider any relevant site-specific factors which may make
the response action especially delicate or complex.
Examples include:
o Complexity of the response action (e.g., multi-source
area-wide groundwater contamination);
o The nature of the PRP pool, e.g., whether there are
State and/or political subdivision PRPs;
o Sites crossing State boundaries or otherwise affectinq
more than one State;
o The State's prior enforcement efforts or other
involvement at the site;
o Indian tribal involvement or impacts; and
o Public sensitivity of or interest in the site.
Implementation
Experience continues to show the importance of a mutual
commitment to full and continuing communication between EPA ard
the State regardless of which Agency has the lead. One method
for ensuring this has been to identify at the outset a few key-
Currently 40 CFR Part 35, Subpart O, cited above.
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points during the response at which decision officials from both
agencies commit to meet and carefully assess progress, data, and
plans. These key points might include RI scoping, the end of the
RI, the identification of alternatives, the proposed plan, and
post-ROD.
It is essential that both agencies be represented at these
meetings by officials able to speak authoritatively for their
agencies. This will ensure that both EPA and the State can go on
record early at these key points as agreeing, or as explaining
their positions on any disagreements, rather than first
ascertaining each other's view at decision points, such as when
the ROD ESD, or ROD amendments are ready to be signed.
Conclusion
The assessment of capability serves purposes beyond guiding
lead agency designation decisions for specific CERCLA responses.
Such assessments also facilitate communication and should result
in a mutually adopted State development plan which could include
staffing, training, certifications, or experience to be
accumulated over a specified period. The Superfund Memorandum of
Agreement (SMOA) offers an appropriate vehicle for documenting
this. Finally, the process is a natural and logical companion to
your discussions with the State on Core Program Cooperative
Agreement (CPCA) funding, since CPCAs are designed to promote and
support the development of capable State programs.
Please direct any guestions on this to Murray Newton, Chief,
State and Local Coordination Branch (703) 308-8380 or FTS
678-8380.
cc: Regional Superfund Branch Chiefs
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