United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
vx EPA
DIRECTIVE NUMBER: 9831.6 (INCLUDING SUBCOMPONENTS
9831.6a, b, c and d)
TITLE: INTERIM FINAL GUIDANCE PACKAGE ON FUNDING CERCLA
STATE ENFORCEMENT ACTIONS AT NFL SITES
APPROVAL DATE: APR 7
EFFECTIVE DATE: APR 7
ORIGINATING OFFICE: WASTE PROGRAMS ENFORCEMENT
B FINAL
D DRAFT
LEVEL OF DRAFT
B A Signed by AA or DAA
D B Signed by Office Director
D C Review & Comment
REFERENCE (other documents):
5 WER OS WER OS WER
DIRECTIVE DIRECTIVE Dl
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^_^_ United states Environmental Protection Agency
g^CPA Washington. DC 20460
mrcrA-i OSWER Directive Initiation Reauest
1 . Directive Number
9831.6
2. Orfqlnator Information
Name of Contact
Anthony M.
Person
Diecidue
Mail Code
WH-527
Office
OWPE
Telephone Code
382-4841
3. Title
Interim Final Guidance Package on Funding CERCLA State Enforcement Actions
at NPL Sites
4. Summary of Directive (include bhef statement of purpose)
Outlines requirements, conditions and limitations for State funding
under a CERCLA Cooperative Agreement of CERCLA Enforcement Actions at -
NPL sites. This directive is divided into four (4) subcomponents 9831.6a through
9831.6d.
5. Keywords -wn.0
CERCLA, STATE, ENFORCEMENT, FUNDING, COOPERATIVE AGREEMENTS
No |X | Yes What directive (number, title)
9831.1-1A and 9831.3
No
Yes What directive (number, title)
7. Draft Level
A - Signed by AA'DAA
B - Signed by Office Director
C - For Review & Comment
D - In Development
8. Document to be distributed to States by Headquarters?
X
Yes
No
This Request Meets OSWER Directives System Format Standards:
9. Signature of Lead Office Directives Coordinator
Darlene Williams, yOWPE Directives Coordinator
10. Name andTTUe'tffApore^j&g Official .
p^S^rnuDba^rtr.-^bSWER Directives Officer
Date I
Date 2 /* : 'fff/
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
AWBERG LIBRARY US.
APR T
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSi
9831.6
MEMORANDUM
SUBJECT: / JEnterim Final/guidance Package on Funding CERCLA State
Snforoejcfent Actions at NPL Sites
FROM: /& !r Wltosfcfcm ' Pfcfrfcer
/Assistant Administrator
J 7
TO: Regional Administrators
Regions I - X
On October 1, 1986, the Office of Solid Waste and Emergency
Response issued two separate guidances on funding States in
support of their enforcement actions at CERCLA National
Priorities List (NPL) sites. One guidance covered activities
related to negotiations with and administrative and judicial
enforcement actions against potentially responsible parties
(PRiPs) ; while the other covered activities related to the
oversight of PRP response actions.
This package includes updated guidances which supersede the
October 1, 1986 guidances. The revised guidances on funding
State enforcement and PRP oversight incorporate relevant
comments, as well as consider various issues that have arisen
since passage of SARA. Therefore, along with this memorandum the
attached package is made up of the following components:
o Guidance on CERCLA funding of State enforcement
actions at National Priorities List sites (9831.6a);
o Guidance on CERCLA funding of Potentially Responsible
Party Oversight by States at National Priorities List
Sites (9831.6b);
o Cost Estimates for Budgeting State Enforcement
Activities (9831.6c); and
o Recommended Procedures for Headquarters/Regional Review
and Concurrence of Initial Enforcement Cooperative
Agreements (9 8 31.6d).
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9831.6
Along with this "interim final" package, the Grants
Administration Division (GAD), in conjunction with OSWER,. has
developed an assistance-related manual entitled "Guide for
Preparing and Reviewing Superfund Cooperative Agreements"
(September 1987). This manual is to be used when reviewing and
awarding actual cooperative agreement applications submitted by
States. In the near future, this manual will include a model
enforcement cooperative agreement application, which will be
representative of the scope and content expected from the States.
.A copy of this manual can be obtained by contacting your Regional
Assistance Administration Unit (AAU).
This package and GAD's guidance, along with the Office of
Emergency and Remedial Response's manual on "State Participation
in the Superfund Program," the "Interim Guidance on State
Participation in Pre-Remedial and Remedial Response" (OSWER, July
21, 1987), the regulation on "Intergovernmental Review of
Environmental Protection Agency Programs and Activities" (40 CFR
Part 29), the "General Regulation for Assistance Programs" (40
CFR Part 30), the guidance on "State Procurement under Superfund
Remedial Cooperative Agreements (OERR, March 1986) and the
regulation on "Procurement Under Assistance Agreements" (40 CFR
Part 33), should form the basis for preparing and administering
cooperative agreements concerning CERCLA State-lead enforcement
actions at NPL sites.
' \
In addition, the upcoming revisions to the National
Contingency Plan and the draft "Guidance on Preparing a Superfund
Memorandum of Agreement" (SMOA) jointly issued by OERR and OWPE
on October 5, 1987 will provide EPA Regional offices and States
with a specific understanding of the extent and manner in which
States should involve themselves in CERCLA enforcement and
remedial responses and the extent of involvement and oversight
expected of EPA during State conduct of such responses.
Furthermore. some issues outlined during review of the previous
funding guidances will be further addressed in future guidance on
CERCLA State enforcement. Please see the attachment to this
memorandum for those issues and the direction to follow.
There are several additional policy points to follow when
implementing this guidance package.
1. States should clearly understand that funding under the
guidances is related to encouraging or compelling PRPs to
undertake traditional response activities to clean up a
site (such as negotiations for remedial investigations,
feasibility studies, remedial designs and remedial actions)
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9831.6
and to conduct necessary technical, administrative and
enforcement activities during their oversight of the PRPs1
response (such as oversight in the field, compiling
administrative records, preparing remedy decision documents
and enforcing the provisions of settlement agreements). At
this time, EPA will not provide funding solely to litigate
claims such as to recover past costs or natural resource
damages.
2. Although the guidances do not specifically address
funding States during Federal facility response actions
at National Priorities List sites, funding by EPA will
nonetheless be considered under the following
situations. Management assistance funding may be
provided to support State involvement in pre-remedial
activities and activities leading to signature and
execution of an agreement under Section 120(e) of
CERCLA. If the State is a signatory to the agreement.
the agreement should spell out the State's
responsibilities for the site, including oversight
responsibilities. Funding through a cooperative
agreement may then be available to conduct these
oversight responsibilities. In the absence of an
oversight role spelled out in the agreement, management
assistance funding may be available to ensure adequate
^ State involvement during the facility's response
action. If the State is not a signatory to the
agreement. oversight activities will be conducted by
EPA. However, management assistance funding may still
be available to ensure adequate State involvement.
Furthermore, EPA's current position is to not fund
States for litigating or taking any enforcement actions
against a Federal facility. Finally, per Section
120(g) of CERCLA, EPA must retain lead responsibility
with respect to its Section 120 authorities over
Federal facility sites on the National Priorities List.
As such, Federal facility sites cannot be designated as
"State-lead."
3. Cost documentation of State intramural and extramural
activities continues to be a critically important
aspect of the Superfund program. As such, the
Financial Management Division's soon to be published
"State Superfund Financial Management and Recordkeeping
Guidance" should be clearly understood and followed by
the Regions and States for all enforcement-related
cooperative agreements developed and funded under this
guidance package. FMD's guidance replaces Appendix U,
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9831.6
"Cost Documentation Requirements for Superfund
Cooperative Agreements" of the Manual "State
Participation in the Superfund Program." The need for
cost recovery, particularly regarding PRP oversight,
should be considered in drafting cooperative
agreements.
4. Provisions outlined in the funding guidances may be
alternatively addressed and agreed to in the SMOA. Of
course, actual funding is done only through a cooperative
agreement. The Region and State should discuss the best
approach to ensuring compliance with the provisions outlined
in the guidances. However, the Region should ultimately
decide whether reiteration or expansion of SMOA provisions
should be made in the cooperative agreement application.
When making this determination, the Region should employ
such criteria as the level of State experience and
capabilities, and past State performance in the CERCLA
cleanup program.
5. Per Section 104(d)(l)(A) of CERCLA, as amended by SARA, EPA
must make a determination on cooperative agreement
applications within 90 days of receipt. Since the 90 day
clock begins when the Regional Assistance Office receives
the final application from the State, the Regional program
-, office must ensure that the application is properly logged
in and dated by the Assistance Office. See the "Interim
Guidance on State Participation in Pre-Remedial and Remedial
Response" for further direction on the 90 day review
requirement.
6. EPA Headquarters does not intend to be routinely involved in
reviewing and concurring on enforcement cooperative
agreement applications. However, some Headquarters
involvement in the initial applications received by the
Region is necessary to ensure the guidance is interpreted
correctly and consistently. Therefore, at least the first
application received in each Region under the negotiation
and litigation guidance and under the oversight guidance
should be submitted for review and concurrence to the
Director, CERCLA Enforcement Division, Office of Waste
Programs Enforcement. (See the section entitled "Recommened
Procedures for Headquarters/Regional Review of Initial
Enforcement Cooperative Agreements" for the suggested
approach.) After having gone through this mutual
Headquarters and Regional review, the Regions will only need
to keep Headquarters informed of subsequent applications
through the SCAP and by providing a copy of awarded
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9831.6
agreements. Management assistance cooperative agreements
need not be submitted to Headquarters for review prior to
their award. Finally, per the program delegation,
enforcement cooperative agreements will be awarded by the
Regional office.
7. Beginning in Fiscal Year 1988, State yearly funding
requirements for activities outlined in this guidance
package must be included in the Region's Superfund
Comprehensive Accomplishments Plan (SCAP). The Region and
State should be working closely during the SCAP development
process to ensure that State funding requirements are
adequately addressed in the final plan.
8. The Administrator is highly interested in improving the
role and relationship of State Attorneys General
offices in the Superfund program. In this regard,
during development and review of enforcement
cooperative agreements and SMOAs, the Regional office
should ensure that relevant responsibilities of the
State Attorney General are adequately addressed in the
document. At the request of the Administrator, my
office is also, looking into the possibility of
earmarking some Core Program funds for relevant State
Attorney General CERCLA program activities.
t
*
As you go about developing cooperative agreement
applications to support CERCLA State enforcement actions, please
feel free to contact Tony Diecidue on FTS(202)-382-4841 or the
appropriate Regional Coordinator in OWPE for assistance on the
various policy or site-specific issues that may need resolution.
cc: Director, Waste Management Division
Regions I, IV, V, VII and VIII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Region III and VI
Director, Toxics and Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
Regional Counsel, Region I - X
Regional Assistance Management Contact, Region I - X
Regional CERCLA Branch Chief, Region I - X
Regional CERCLA Enforcement Section Chief, Region I - X
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9831.6
ISSUES ON DRAFT GUIDANCE ON
FUNDING CERCLA STATE ENFORCEMENT ACTIONS
The following issues received on the draft guidance on
funding CERCLA State enforcement actions will be further
addressed in future guidance on State involvement in CERCLA
enforcement actions. However,, here is policy direction on
proceeding with these issues.
1. Must the State outline their enforcement authorities for the
entire action, or only the authorities for performing a
particular action (such as PRP searches or negotiations)?
When the State submits a cooperative agreement application,
it is assumed the site has already been designated a State-
lead enforcement site. It is also assumed the State will
carry the enforcement response as far along as possible and,
therefore, should spell out the authorities to be used by
the State. Since part of the initial classification process
includes whether adequate enforcement authorities are
available, the State would only need to reiterate them in
the application. For example, a letter from the Attorney
General outlining these authorities could be prepared and
the same letter could be used for each cooperative
agreement. A Superfund Memorandum of Agreement (SMOA) could
also suffice in ensuring that adequate enforcement
\ authorities are available.
2. Is there any intent to require States to follow the CERCLA
Section 122 settlement provisions?
The procedures spelled out in Section 122 of CERCLA are
related to settlements pursued by the Federal government and
their use is subject to sound discretion at a particular
site (See Section 122(a)). While States can avail
themselves of equivalent procedures, they are not authorized
by EPA to use Section 122 when pursuing enforcement actions
under their own authorities. However, in pursuit of
consistency with the intent of CERCLA, State settlements
will need to be consistent with certain Section 122
procedures and related EPA Superfund enforcement policy and
guidance when negotiating and settling with PRPs under a
cooperative agreement. These include giving notice and
establishing negotiation time frames (Section 122(e));
ensuring adequate public participation (Section 122(d)); and
requiring that covenants not to sue contain a "reopener"
provision (except for a special covenant not to sue, a de
minimis settlement, or in an extraordinary circumstance)
(Section 122(f)). Other Section 122 provisions clearly do
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9831.6
not apply to State-lead enforcement sites, such as mixed
funding (Section 122(b)), since provisions such as this can
only be implemented through settlements with the Federal
government. Therefore, please note that the negotiation and
litigation funding guidance requires a State assurance on
this issue.1
3. There is nothing in the guidances on EPA participation in
State-lead enforcement actions. There is no discussion of
having, or letting, EPA sit in on negotiations or
participate in setting up the strategy for such
negotiations. Should this not be a reciprocal requirement?
The draft guidance on preparing a SMOA discusses, in the
enforcement section, that when developing an agreement the
Region and State should consider and address to what extent
each party will be involved in the other's negotiations with
PRPs. Furthermore, the Region and State continue to have the
discretion of also preparing site-specific enforcement
agreements. The extent of involvement should be based on
various factors. These include the level of confidence in
and past experience with the State, and site-specific
factors such as the complexity or national significance of
the response action. Consistency of the remedy with Section
121 of CERCLA, the upcoming revisions to the NCP and
\ applicable EPA guidance, and assurance that it will be
implemented correctly through an enforceable pleading are
the most important concerns. Also, EPA and the States
should not be duplicating the others activities at sites.
Regardless of the extent of Regional involvement in State-
lead enforcement negotiations, settlements at these sites
would typically be two party agreements (State and PRPs)
under State authorities.
Since the reauthorization of CERCLA, EPA has issued
several policies concerning Federal government
implementation of the various Section 122 settlement
procedures. Because these policies are designed for
Federal settlements, they contain numerous requirements
that are irrelevant to or need not be adhered to by
States during their enforcement actions. Also,
consistent with Section 122(a), EPA and the State can
jointly waive use of the procedures outlined in the
Section. EPA is developing additional guidance to
specifically address and clarify the relation of the
Section 122 settlement procedures and related policy to
State enforcement actions.
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9831.6
4. Is EPA responsible for the final selection of remedy at
State-lead enforcement sites? Should EPA participate in the
development of the remedy at these sites even if the work
will be done by the PRPs under a State settlement agreement?
What authority does EPA have if the State believes its
remedy is consistent with the NCP and EPA disagrees?
The upcoming revisions to the NCP state that unless a
State Record of Decision (ROD) or other decision
document is concurred with and adopted in writing by
EPA, EPA shall not be deemed to have approved of the
State decision. The NCP and upcoming guidances will
set forth the procedures for and intent of EPA's
concurrence and adoption of the remedy. States must
recognize that if their procedures and remedies are not
consistent with EPA's (including RI/FSs and Section 121
of CERCLA), it should not be expected that EPA will
approve the remedy. With or without EPA's approval,
however, States may decide to proceed under their own
authorities and funding. In turn, EPA has the
authority under CERCLA to proceed with its own
enforcement action or attempt to intervene prior to a
State settlement with or litigation against PRPs.
However, one purpose of establishing SMOAs and seeking
EPA concurrence and adoption of the remedy is to avoid
V such problems at the remedy selection stage by
outlining roles and responsibilities up front,
including the extent of support agency participation in
lead agency negotiations and other legal efforts, and a
process for informally resolving disputes (i.e., short
of the courts). Furthermore, please note that when EPA
is paying for these activities under a cooperative
agreement f the State is assuring that their oversight
of PRP technical activities and their selection of a
remedy for the site will be consistent with CERCLA, as
amended by SARA, the NCP and applicable EPA guidance.
5. The guidance assumes that States can issue standard notice
letters. Should careful examination of standard notice
letter content be done to ensure that a State letter
provides adequate notice for future State or Federal claims,
and to ensure that the State letter is sufficient to EPA and
DOJ attorneys? Should there be a requirement that EPA
approve the general form notice letter the State intends to
use?
It has always been assumed that States would attempt to
notify PRPs of their potential liability and offer them an
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9831.6
opportunity to conduct necessary response actions at State-
lead enforcement sites. These activities are to be
performed under State authorities (note that statutory
authority is generally not required for these activities).
However, as stated in question #2 above, States will need to
be consistent with the Federal procedures for notifying PRPs
and establishing negotiation timeframes when funded under a
cooperative agreement. Any review, consultation and/or
concurrence role for EPA with regard to State notice letters
should be worked out during the SMOA or CA development
process.
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CERCLA FUNDING OF
STATE ENFORCEMENT ACTION AT
NATIONAL PRIORITIES LIST SITES
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9831.6a
CERCLA FUNDING OF
STATE ENFORCEMENT ACTIONS
AT NATIONAL PRIORITIES LIST SITES
PURPOSE
The purpose of this guidance is to assist EPA Regional offices and States on
funding, under a CERCLA cooperative agreement (CA), of State search and
notification, negotiation, and administrative and judicial enforcement efforts to
encourage or compel hazardous waste site cleanups by potentially responsible parties
(PRPs).
BACKGROUND
In its opinion of February 12, 1986, regarding CERCLA funding of State
enforcement efforts, the Office of General Counsel reconsidered and expanded upon
a July 20, 1984, opinion to allow limited assistance for identification of PRPs and
gathering of evidence, remedial investigations and feasibility studies (RI/FS) to
support State or Federal enforcement actions, and oversight of RI/FSs and remedial
designs (RD) conducted by PRPs. The February 12, 1986, opinion allows such
activities as oversight of PRP-conducted remedial actions (RA), reporting to the
public on private party response actions, negotiation, and administrative and judicial
enforcement to encourage or compel PRPs to initiate response actions at National
-Priorities List (NPL) sites. The Superfund Amendments and Reauthorization Act of
1986 (SARA) also confirms this interpretation by expanding the activities eligible for
CA funding under Section 104(d)(l) of CERCLA.
The intent of funding for these activities is to successfully secure the greatest
number of private party cleanup actions possible. In achieving this goal, States will
need to be consistent with EPA's Superfund enforcement policies and procedures.
This is necessary to ensure that site cleanups:
o Are consistent with CERCLA, as amended by SARA, and the National
Contingency Plan (NCP);
o Are conducted in a timely manner and allow for deletion from the NPL;
and
o Enable EPA and States to conduct future CERCLA cost recovery actions.
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9831.6a
GUIDANCE
Cooperative Agreement funding for PRP searches, issuance of notice letters,
negotiation, or administrative and judicial enforcement will only be provided at NPL
sites that have been designated as State-lead enforcement. In determining lead
designation, Regional offices and States should use the criteria outlined in the
EPA/Association of State and Territorial Solid Waste Management Officials
(ASTSWMO) policy memorandum of October 2, 1984. In addition, EPA Headquarters
is in the process of developing additional classification guidance based upon SARA
and the upcoming revisions to the NCP. Prior to drafting or accepting a
cooperative agreement application for review and award, the criteria should be
applied to the site. This includes sites currently designated as State-lead
enforcement and sites States are seeking to place in the State-lead enforcement
category. Once the designation is made and a State requests CA funding, the
Region should pay particular attention to the itemized budget submitted along with
the application. The budget should be carefully reviewed to ensure that adequate
resources and staff expertise are devoted to the site. Along with these
considerations, the conditions and requirements outlined in this guidance must be
incorporated into the CA application prior to award.
This guidance does not preclude the Regions from including additional
enforcement-related conditions in the application, if warranted. Furthermore, it is
imperative that applicable provisions outlined in Appendix F of the EPA manual
State Participation in the Superfund Program be incorporated into each CA
application. See Attachment A for those applicable provisions and sample language
for the enforcement provisions.
^ State annual funding requirements for activities outlined in this guidance must
be included in the Region's Superfund Comprehensive Accomplishments Plan (SCAP).
The Region and State should be working closely during the SCAP development
process to ensure that State funding requirements are adequately addressed in the
final plan. When developing CA applications for these activities, the State Project
Officer (SPO) should work closely with the Remedial Project Manager (RPM) and
Regional Counsel to ensure that the application is sufficient and complete. SPOs
should also coordinate closely with their Headquarters Regional Coordinator in the
Office of Waste Programs Enforcement (OWPE). The Regions will continue to be
responsible for awarding the CA.
I. Funding State PRP Searches at Pre-NPL and NPL Sites
If EPA and the State agree to designate sites as State-lead enforcement, the
State should identify PRPs. In order to conduct PRP searches in a timely manner,
EPA may fund States to perform this activity prior to proposal of a site on the
NPL. Candidate sites for this funding are those undergoing a listing site
investigation or the NPL scoring quality assurance process. This will enable PRP
searches to be completed within six months of proposal of the site on the NPL.
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9831.6a
A. Conditions for Funding State PRP Searches Under a Cooperative Agreement
In order to receive funding for PRP searches, the State must agree to include
the following information in its CA application and be prepared to make the
following assurances in the final CA. Except where noted, the following
information and assurances must be certified by the State's Governor, Attorney
General, designee, or appropriate State agency. In States where these authorities
overlap among different State offices, all applicable signatures will be required.
1. The State must provide a letter outlining the State enforcement
authorities that provide the basis for initiating enforcement actions
against PRPs (e.g., administrative or judicial enforcement) which can
result in securing the necessary response.
2. The State must designate a lead agency RPM and lead State attorney for
the site.a Also, if multiple State offices are funded for a site, one must
be designated as the lead State agency.
3. The State must agree that PRP searches will be consistent with relevant
EPA Superfund enforcement policy and guidance.
4. The State must retain, in a central file, all documents produced,
collected, received, or issued as part of the PRP search funded through
the CA. These documents may be required for subsequent State or
Federal enforcement action, or future cost recovery activities. Examples
of such documents include:
a. Site histories (such as ownership of property through titles or
* property sales; operations at the facility; and compliance or non-
compliance with environmental regulations);
b. Title searches and summary of findings;
c. Lists of names, addresses (past and current, if applicable), and phone
numbers of PRPs identified (such as owners, operators, generators,
and transporters); volume and nature of substances sent to the site
and volumetric ranking;
d. Files on each PRP with evidence (including responses to information
requests) of shipments to the site, amount shipped and the fact that
hazardous substances were shipped.
e. Corporate histories, status, and information relating to the
availability of PRPs to pay for or perform a cleanup, including
financial assessments and insurance information as available; and
The same RPM and attorney can be designated the lead for more than one
site, if a multi-site CA is developed by and awarded to the State.
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9831.6a
f. Conclusions and recommendations for pursuing additional leads or
enforcement actions (such as unconfirmed PRPs that could not be
conclusively linked to the site).
B. Fundable PRP Search Tasks
This section outlines specific fundable tasks for conducting PRP searches.
These tasks parallel those conducted by EPA.
1. Identifying site owners or operators during a preliminary assessment and
site inspection.
2. Conducting searches to examine legal descriptions and owners of property
(e.g., title searches), government files, reports, and court files. Also, to
examine technical information on the types of waste disposed of and
methods of disposal used.
3. Identifying initial contacts (such as site owners or operators) to gather
documents regarding names and addresses of other.parties involved and
their contributions to the site.
4. Reviewing information provided by initial contacts, which may lead to the
discovery of additional PRPs. This information miay include documents
such as customer lists, generator invoices, bills and receipts, and owner ,
or operator records and manifests.
* 5. Conducting on-site investigations to identify additional PRPs. These
investigations may include an inventory of drums, and wastes found on
site, review of abandoned records, vehicles, buildings, etc.
6. Conducting off-site investigations to provide new leads and identify
additional PRPs. These investigations may include interviews with local
police, fire and health department personnel, local residents, Chamber of
Commerce staff, bank personnel, and local industry representatives.
7. Issuing information request letters.
8. Reviewing and retrieving information from various data bases.
Commercial data bases may provide corporate information about PRPs,
technical information on specific chemicals, ownership of property, and
operations and employees of various firms.
9. Verifying and documenting the various types of information collected
during the PRP search process. This effort may include establishing a
data base to maintain this information and information collected through
notice and information request letters.
10. Identifying PRPs by name and address, indicating the volume and nature
of substance contributed by each PRP and ranking PRPs by volume.
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9831.6a
11. Securing site access to conduct any of the above mentioned tasks. No
EPA funds may be used to compensate site owners for access.
Community relations tasks are also allowable activities under a CERCLA CA.
Specifically, States should contact appropriate local officials and community
representatives if there is any possibility of citizen interest or concern about
potential State enforcement actions. This should also include conducting community
interviews to assess public concerns, learn about additional information on the site
and PRPs, and prepare a community relations plan. Chapter 6 of the guidance
entitled Community Relations in Suoerfund - A Handbook should be consulted when
requesting CA funds for, and when developing, such tasks.
II. Funding State Issuance of Notice Letters and Negotiation Activities at NPL
Sites
If EPA and a State agree to designate sites as State-lead enforcement, the
State should attempt to notify PRPs of their potential liability and attempt to
secure their commitment for site cleanup. Therefore, general notice as well as
special notice to PRPs and negotiation for PRP conduct of the RI/FS and/or RD/RA
should begin within the time frames established by Section 122 (e) of CERCLA and
relevant EPA Superfund enforcement policy and guidance.
In order to issue notice letters within a reasonable timeframe upon proposal of
a site on the NPL, EPA may fund States to prepare notice letters prior to such
proposal. Candidate sites for this funding are those having received a preliminary
,HRS of 28.5 or better and planned to undergo NPL quality control review.
A. Conditions for Funding State Issuance of Notice Letters and Negotiations
Under a Cooperative Agreement
In order to receive funding for issuing notice letters and negotiating with
PRPs, the State must agree to include the following information in its CA
application and be prepared to make the following assurances in the final CA.
Except where noted, the following information and assurances must be certified by
the State's Governor, Attorney General, designee, or appropriate state agency. In
States where these authorities overlap among different State offices, all applicable
signatures will be required.
1. The State must provide a letter outlining the State enforcement
authorities that provide the basis for initiating enforcement actions
against PRPs (e.g., administrative or judicial enforcement) which can
result in securing the necessary response.
2. The State must designate a lead agency RPM and lead State attorney for
the site. Also, if multiple State offices are funded for a site, one must
be designated as the lead State agency.
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9831.6a
3. The State must conclude successful negotiations by entering into an
enforceable order or decree, or by issuing some other enforceable
document requiring the PRP to conduct an RI/FS and/or RD/RA in
accordance with CERCLA, as amended by SARA (including remedies
consistent with Section 121 cleanup standards), the NCP, and applicable
EPA policy and guidance.
4. The State must agree to conduct negotiations and develop settlements
consistent with CERCLA Section 122 procedures on notice and negotiation
time frames (Section 122(e)), ensuring adequate public participation
(Section 122(d)) and requiring that covenants not to sue contain a
"reopener" provision (except for special covenants, de minimis settlements
or extraordinary circumstances)(Section 122(f)).
5. For issuing notice letters and negotiating with PRPs to conduct an RI/FS,
the State must agree that the issuance of notice letters and negotiations
will be consistent with CERCLA, as amended by SARA, the NCP, and
relevant EPA Superfund enforcement policy and guidance.
o If a settlement is not reached within 90 days after notice to PRPs,
the State must notify EPA and recommend either continuing with
negotiations or other enforcement actions or requesting initiation of
a State- or Fund-financed RI/FS. (If negotiations have begun prior
to awarding the CA, the State must notify EPA within 90 days after
award.) If EPA and the State determine that negotiations should
not continue, the State may request that the CA be amended to
redirect remaining funds toward a Fund-financed RI/FS (subject to
availability of funds). If EPA and the State determine that
negotiations should continue, the State must provide a revised time
schedule and date for conclusion of negotiations.
6. For issuing notice letters and negotiating with PRPs to conduct an
RD/RA, the State must agree that, the issuance of notice letters and
negotiations will be consistent with CERCLA, as amended by SARA, the
NCP, and relevant EPA Superfund enforcement policy and guidance.
o If a negotiated settlement is not reached within 120 days after
notice to PRPs, the State must notify EPA and recommend either
continuing with negotiations, proceeding with other enforcement
actions, or establishing a schedule for conducting a Fund-financed
cleanup. (If negotiations have begun prior to awarding the CA, the
State must notify EPA within 120 days after award.) If EPA and
the State determine that negotiations should not continue, the State
may request that the CA be amended to redirect remaining funds
toward other administrative or judicial enforcement activities
(subject to availability of funds). If EPA and the State determine
that negotiations should continue, the State must provide a revised
time schedule and date for conclusion of negotiations.
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9831.6a
7. The State must compile and maintain an administrative record as required
under Section 113 of CERCLA, the NCP and applicable EPA guidance.
8. The State must conduct a community relations program in accordance
with the NCP and applicable EPA guidance.
9. In the event that the State determines after execution of the CA that
State laws or other restrictions prevent the State from acting consistent
with CERCLA, as amended by SARA, the State must agree to promptly
notify and consult with EPA regarding the use of such laws or other
restrictions1*.
10. The State must retain in a central file all documents produced, collected,
received, or issued as part of its issuance of notice letters and
negotiations with PRPs. These documents may be required for subsequent
State or Federal enforcement action or future cost recovery activities.
Examples of such documents include:
a. Lists of names of PRPs receiving notice letters or information
request letters and copies of the letters;
b. Information and data collected as a result of PRP searches and
notice letters or information request letters (waste-in lists;
volumetric rankings; etc.);
c. Descriptions of the problems at the site (such as the site history,
environmental and public health concerns, and previous response and
enforcement activities);
d. Negotiation strategies or goals and specific response actions sought;
e. Listings of PRPs involved in the negotiations (such as names,
addresses and phone numbers, and other possible PRPs and reasons
they were considered or rejected);
f. Expected and actual time schedules and dates for conclusion of
negotiations (such as first negotiation session with PRPs, etc.); and
g. Copies of the final order or decree and accompanying documents
(RI/FS or RD/RA statement of work and work plans).
In the course of negotiating the CA, consistency with Section 121 and Section
122 (notice, public participation and covenants not to sue) should be assured.
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9831.6a
B. Fundable Notice Letter and Negotiation Tasks
This section outlines specific fundable tasks for conducting negotiations with
PRPs. These tasks parallel those conducted by EPA.
1. Various tasks may be conducted to notify PRPs. Fundable tasks include:
a. Identifying recipients of notice letters by reviewing the results of
PRP searches.
b. Drafting notice letters to be issued to PRPs. This task may include
tailoring EPA's model notice letter to address the specifics of the
case or to request specific responses from various PRPs.
c. Mailing notice letters. This task also includes ensuring knowledge
^ that the letters are received by PRPs (e.g., certified return receipt)
and that replies are sent to the State.
d. Receiving and sorting out response letters and reviewing and
answering questions raised by PRPs.
e. Maintaining copies of notice letters issued, responses received, and
other documents relevant to the site.
f. Releasing the names of notified PRPs, in order for all notified
parties to begin organizing among themselves in anticipation of
negotiations with the State. Releasing the names of notified PRPs
^ to other interested parties may be done in accordance with State
Freedom of Information laws and requirements.
g. Constructing other relevant information (such as a summary of
volumetric contribution) to help in organizing PRPs and preparing
for negotiations with PRPs.
2. Various tasks may be conducted during negotiations with PRPs. These
tasks can be broken down into three broad areas: project management,
technical tasks, and legal tasks. (Project management and technical staff
may perform parts of some legal tasks, and legal staff may perform parts
of some project management tasks.) Fundable tasks for these three areas
include:
a. Analyzing information provided by PRPs in response to notice letter
and information requests (such as development of transactional data
bases using waste-in lists, volumetric rankings, and type of
involvement and years of association with the site).
b. Reviewing relevant and applicable policies and guidance documents.
c. Analyzing, reviewing, and providing comments on work plans,
samples, studies, and other scientific and technical data.
d. Assessing site conditions.
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9831.6a
e. Defining technical points open for discussion (such as number and
placement of samples; scope of the investigation; remedial options
to be considered; cleanup standards and techniques to be met; and
operable units to be addressed).
f. Reviewing and responding to PRP proposals and/or counter proposals.
g. Identifying applicable and relevant and appropriate requirements
(ARARs).
h. Establishing a negotiation team (legal and technical members) and
defining each team member's role, authority, and responsibilities.
i. Holding meetings to follow up the notification process.
j. Performing legal research (such as applicable laws, need for
precedent, etc.) to support the negotiation effort.
k. Negotiating with PRPs (including dg_ minimis parties, et al.).
1. Analyzing settlement alternatives.
m. Monitoring strengths and weaknesses of State and PRP positions and
evidence to be taken to trial should the negotiations fail.
n. Preparing draft orders and decrees for PRP review and comment.
'* o. Assessing PRP comments on the draft order and preparing and
issuing the final order.
p. Meeting with EPA and/or expert witnesses to discuss the draft order
and other aspects of the enforcement action.
q. Developing a payment plan for fines or cash settlements.
Community relations tasks are also allowable activities under a CERCLA CA.
The State is responsible for conducting a community relations program during
negotiations with PRPs. The State should refer to Chapter 6 of the guidance
entitled Community Relations in Suoerfund - A Handbook when requesting CA funds
for, and when developing, such a program.
III. Funding State Administrative and Judicial Enforcement Actions at NPL Sites
If EPA and a State agree to designate sites as State-lead enforcement, and
private parties do not agree willingly to clean up the site, the State may pursue
administrative or judicial enforcement action against PRPs to compel cleanup (in
State or Federal Court, as appropriate). These actions are considered while an
RI/FS is being completed in order to plan, in the event that a settlement is not
reached, whether the design is to be financed by the Fund, whether to issue a
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9831.6a
unilateral order and/or whether to file a judicial action for injunctive relief.
Therefore, EPA will not fund these actions unless the steps outlined above have
been completed or pursued. Where this situation occurs, EPA may fund the State
for these actions against the PRPs.
However, EPA will consider other factors that justify or require pursuing
administrative or judicial enforcement to compel performance of the RI/FS. For
instance, States as part of their enforcement process may typically issue unilateral
administrative orders either to initiate the negotiation process (tantamount to a
notice) or at the termination of negotiations where no settlement is reached (i.e.,
PRPs failed to execute or sign the enforcement document). EPA may fund the tasks
necessary to prepare and issue the unilateral administrative order. The State must
outline the factors for pursuing this method of enforcement in the CA application.
A. Conditions for Funding State Administrative or Judicial Enforcement Actions
Under a Cooperative Agreement
In order to receive funding from EPA for administrative or judicial
enforcement actions against PRPs, the State must agree to include the following
information in its CA application and be prepared to make the following assurances
in the final CA. Except where noted, the following information and assurances
must be certified by the State's Governor, Attorney General, designee, or
appropriate State agency. In States where these authorities overlap among different
State offices, all applicable signatures will be required.
1. The State must provide a letter outlining the State enforcement
^ authorities that provide the basis for initiating enforcement actions
against PRPs (e.g., administrative or judicial) which can result in securing
the necessary response.
2. The State must designate a lead agency RPM and lead State attorney for
the site. Also, if multiple State offices are funded for a site, one must
be designated as the lead State agency.
3. The State must issue a unilateral order and/or file a judicial action
requiring the PRP to conduct an RI/FS or RD/RA in accordance with
CERCLA, as amended by SARA (including remedies consistent with Section
121 cleanup standards), the NCP and applicable EPA policy and guidance.
4. The State must agree to conduct negotiations and develop settlements
consistent with CERCLA Section 122 procedures on notice and negotiation
time frames (Section 122(e)), ensuring adequate public participation
(Section 122(d)) and requiring that covenants not to sue contain a
"reopener" provision (except for special covenants, dg. minimis settlements
or extraordinary circumstances)(Section 122(f)).
5. The State must compile and maintain an administrative record as required
under Section 113 of CERCLA, the NCP and applicable EPA
guidance.
10
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9831.6a
6. The State must conduct a community relations program in accordance
with the NCP and applicable EPA guidance.
7. In the event that the State determines after execution of the CA that
State laws or other restrictions prevent the State from acting consistent
with CERCLA, as amended by SARA, the State must agree to promptly
notify and consult with EPA regarding the use of such laws or other
restrictions'.
8. The State must retain in a central file all documents produced, collected,
received, or issued as part of its administrative or judicial enforcement
against PRPs. These documents are generally required as part of an
action to compel PRPs to take a response action or for cost recovery.
Examples of such documents include:
a. Descriptions of problems at the site (such as the site history,
environmental and health concerns, and responses and enforcement
activities preceding litigation).
b. Objectives of litigation (such as relief and/or monetary penalties
sought).
c. Statutory provisions upon which the case is being built (such as
State and/or Federal statutes).
d. Factors leading to the need for litigation (such as the legal history
of the case and other elements of the case).
e. Proposed litigants and evidence of use of the site (such as names,
how they are linked to the site, and other possible litigants and
reasons they were considered or rejected).
f. Potential problems with the litigation (such as any anticipated
defenses, problems with consistency with NCP, and reasons for
urgency in proceeding with litigation).
g. Summary of the contents of the documentary file (such as technical
documents, administrative decisions, correspondence, pleadings,
documentation and minutes of negotiations and technical discussions
with PRPs, and other relevant documents).
h. Previous settlement discussions and proposals made by the State
and/or PRPs.
In the course of negotiating the CA, consistency with Section 121 and Section
122 (notice, public participation and covenants not to sue) should be assured.
11
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9831.6a
i. Expected and actual time schedule for litigation (such as motion for
first discovery, first summary judgment, first deposition, etc.).
j. Copies of final judgments or consent decrees and accompanying
documents.
B. Fundable Administrative or Judicial Enforcement Tasks
This section outlines specific fundable tasks for administrative or judicial
enforcement against PRPs. These tasks parallel those conducted by EPA.
Various tasks may be conducted during an administrative or judicial
enforcement action against PRPs. These tasks can be broken down into three broad
areas: project management, technical tasks, and legal tasks. (Project management
and technical staff may perform parts of some legal tasks, and legal staff may
perform parts of some project management tasks.) Fundable tasks for these three
areas include:
1. Analyzing information provided by PRPs in response to notice letters and
information requests (such as development of transactional data bases
using waste-in lists, volumetric rankings, and type of involvement and
years of association with the site).
2. Reviewing relevant and applicable policies and guidance documents.
3. Analyzing, reviewing, and providing comments on work plans, samples,
* studies, and other scientific and technical data.
4. Analyzing previous negotiations and PRP proposals and/or counter
proposals.
5. Defining technical points to be addressed during litigation (such as
technical and scientific data supporting selection of a particular remedy,
cleanup standard and/or technique and endangerment, and release of other
elements of proof under State law).
6. Compiling and evaluating testimony and depositions. Hiring expert
witnesses through the State's procurement procedures.
7. Identifying ARARs.
8. Developing a litigation team (legal and technical members) and defining
each team member's role, authority, and responsibility.
9. Organizing all documents collected and generated throughout the case.
10. Performing legal research (such as legal history and theory of the case
and statutes upon which to proceed).
12
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. 9831.6a
11. Reviewing proceedings of previous negotiations and settlement offers.
12. Conducting discovery and deposition tasks.
13. Preparing pleadings, motions, and briefs.
14. Preparing expert witness testimony.
15. Analyzing potential defenses to the case.
16. Assessing settlement alternatives.
17. Preparing pretrial order.
18. Trying the case in court, if a pretrial settlement cannot be reached.
Community relations tasks are also allowable activities under a CERCLA CA.
The State is responsible for conducting a community relations program during an
administrative action or litigation against PRPs. The State should refer to Chapter
6 of the guidance entitled Community Relations in Suoerfund - A Handbook when
requesting CA funds for, and when developing, such a program.
13
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. 9831.6a
ATTACHMENT A
PROVISIONS SPECIFIC TO STATE-LEAD ENFORCEMENT
ACTIONS AT CERCLA NATIONAL PRIORITIES LIST SITES
. State-lead enforcement Cooperative Agreements should contain the provisions
found in Sections 1 (A-F) and 2 (B-M, O-T) of Appendix F of the EPA manual State
Participation in the Suoerfund Program. In addition, they should also contain the
following provisions.
A. State Enforcement Authorities
In providing CERCLA funds for State-lead enforcement PRP search,
notification, negotiation, and administrative and judicial enforcement, the State has
shown it possesses the legal authorities to pursue such actions to ensure
performance of the response action. EPA asks the State to outline these authorities
in the Cooperative Agreement application.
"The State possesses the legal authorities to pursue enforcement actions to
ensure performance of the private party response action. The State agrees to
use these authorities if private parties are unwilling to implement the
: necessary response action. These legal authorities are outlined in a letter
from [official providing letter], dated [_, ] and is attached to the
Cooperative Agreement application."
B. Designation of Lead Site Project Manager and Lead Attorney/Coordination
'* Among Appropriate State Offices
CERCLA enforcement actions are a joint effort, involving individuals with
project management, technical, and legal expertise. To this extent, enforcement
actions require close coordination and cooperation between technical experts and
attorneys to ensure successful results. EPA asks the State to identify State
officials who will represent this expertise and ensure that the various State offices
involved in the enforcement action are involved in the development and execution
of the Cooperative Agreement.
"The State has designated [name, title, address, phone number] to serve as lead
agency remedial project manager for the [sitel. The State has designated
[name, title, address, phone number] to serve as lead attorney for the [site].
All appropriate State offices involved in the execution of the enforcement
action planned for the [site] have been coordinated with in developing this
Cooperative Agreement application."
14
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9831.6a
C. Consistency with EPA Policy and Guidance1
In pursuing enforcement actions against PRPs, the State must assure that such
actions are consistent with CERCLA, as amended by SARA, the NCP, and relevant
EPA Superfund enforcement policy and guidance.
i
For PRP Searches:
"In conducting PRP searches funded by this Cooperative Agreement, the State
agrees to ensure that such activities will be consistent with relevant EPA
Superfund enforcement policy and guidance, including but not limited to:
o U.S. EPA, Office of Waste Programs Enforcement, Potentially
Responsible Party Search Manual. August 27, 1987."
For Issuance of Notice Letters and RI/FS Negotiations with PRPs:
"In issuing notice letters and conducting RI/FS negotiations funded by this
Cooperative Agreement, the State agrees to ensure that such activities will be
consistent with CERCLA, as amended by SARA, the National Contingency Plan,
and relevant EPA Superfund enforcement policy and guidance, including but not
limited to:
o U.S. EPA, Office of Solid Waste and Emergency Response, Interim
Guidance on Notice Letters. Negotiations and Information Exchange.
October 19, 1987;
ť o U.S. EPA, Office of Solid Waste and Emergency Response, Interim
Guidance on Potentially Responsible Party Participation in Remedial
Investigations and Feasibility Studies, (pending);
o U.S. EPA, Office of Emergency and Remedial Response, Guidance on
Remedial Investigations under CERCLA and Guidance on Feasibility
Studies under CERCLA. June 1985."
For Issuance of Notice Letters and RD/RA Negotiations with PRPs:
"In issuing notice letters and conducting RD/RA negotiations funded by this
Cooperative Agreement, the State agrees to ensure that such activities will be
consistent with CERCLA, as amended by SARA, the National Contingency Plan,
and relevant EPA Superfund enforcement policy and guidance, including but not
limited to:
o U.S. EPA, Office of Waste Programs Enforcement, Interim Guidance
on Notice Letters. Negotiations and Information Exchange.
October 19, 1987;
The policies cited in this section should not be construed as all inclusive or
entirely relevant to each site-specific enforcement action. Other policies that
may exist or be developed in the future may also need to be referenced in a
Cooperative Agreement. In addition, some of the policies listed above are
currently being revised (such as the RI/FS and RD/RA guidances).
15
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9831.6a
o U.S. EPA, Office of Solid Waste and Emergency Response, Office of
Enforcement and Compliance Monitoring, U.S. Department of Justice,
Interim CERCLA Settlement Policy. December 5, 1985 (to the extent
not superseded by Section 122 of CERCLA);
o U.S. EPA, Office of Emergency and Remedial Response,
Superfund Remedial Design and Remedial Action Guidance.
Revised, June 1986."
For Administrative and Judicial Enforcement Actions against PRPs:
"In conducting administrative and judicial enforcement actions funded by this
Cooperative Agreement, the State agrees to ensure that such activities will be
consistent with CERCLA, as amended by SARA, the National Contingency Plan,
and relevant EPA Superfund enforcement policy and guidance, including but not
limited to:
o U.S. EPA, Office of Solid Waste and Emergency Response,
Office of Enforcement and Compliance Monitoring, U.S.
Department of Justice, Interim CERCLA Settlement Policy.
December 5, 1985 (to the extent not superseded by Section 122
of CERCLA);
o U.S. EPA, Office of Emergency and Remedial Response, Superfund
Remedial Design and Remedial Action Guidance. Revised, June 1986."
D. Consistency with Section 122 of CERCLA
'*
State negotiations and settlements will need to be consistent with Section 122
of CERCLA and relevant EPA Superfund enforcement policy and guidance when
State enforcement actions are funded under a cooperative agreement.
"In conducting negotiations and developing settlements funded by this
Cooperative Agreement, the State agrees to be consistent with CERCLA Section
122 procedures on giving notice and establishing negotiation time frames
(Section 122(e)); ensuring adequate public participation (Section 122(d)); and
requiring that covenants not to sue contain a "reopener" provision (except for
a special covenant not to sue, a dŁ minimis settlement, or in an extraordinary
circumstance) (Section 122(f))."
E. Time Frame for Negotiations
When conducting negotiations funded under a CERCLA Cooperative Agreement,
the State must attempt to settle with PRPs within a specified time frame. EPA
asks the State to notify EPA if a settlement is not reached within this time frame
and to recommend whether negotiations should continue with the PRPs.
16
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9831.6a
For RI/FS Negotiations:
"If a settlement is not reached within 90 days after notice to potentially
responsible parties for their conduct of the RI/FS, the State agrees to notify
EPA and recommend either (1) continuing with negotiations or other
enforcement actions or (2) requesting initiation of a State or Fund-financed
RI/FS. (If negotiations have begun prior to award of the Cooperative
Agreement, the State agrees to notify EPA within 90 days after award.) If
EPA and the State determine that negotiations should not continue, the State
may request that the agreement be amended to redirect remaining funds toward
a Fund-financed RI/FS (subject to availability of funds). If EPA and the State
determine that negotiations should continue, the State agrees to provide a
revised time schedule and date for conclusion of negotiations."
For RD/RA Negotiations:
"If a settlement is not reached within 120 days after notice to potentially
responsible parties for their conduct of the RD/RA, the State agrees to notify
EPA and recommend either (1) continuing with negotiations, (2) proceeding
with other administrative or judicial enforcement actions, or (3) having EPA
establish a schedule for conducting a Fund-financed cleanup. (If negotiations
have begun prior to award of the Cooperative Agreement, the State agrees to
notify EPA within 120 days after award.) If EPA and the State determine that
negotiations should not continue, the State may request that the agreement be
amended to redirect remaining funds toward other administrative or judicial
enforcement actions. If EPA and the State determine that negotiations should
continue, the State agrees to provide a revised time schedule and date for
Ť conclusion of negotiations."
F. Formalizing Successful Negotiations, and Administrative or Judicial Enforcement
Actions
In pursuing negotiations with or enforcement actions against PRPs, the State is
required to culminate successful actions by entering into an enforceable order, or
decree or issuing some other enforceable document requiring the PRP to conduct the
response action in accordance with the NCP and relevant EPA policy and guidance.
"The State agrees to culminate a successful [type of enforcement action] by
issuing a ftvoe of enforceable document] for the [name of site!, requiring the
private parties to conduct the response action in accordance with CERCLA, as
amended by SARA, NCP, and applicable EPA policy and guidance."
G. Administrative Record
"The State agrees to compile and maintain an administrative record consistent
with Section 113 of CERCLA, as amended by SARA, the National Contingency
Plan, and relevant EPA policy and guidance, including but not limited to:
o U.S. EPA, Office of Waste Programs Enforcement/Office of Emergency
and Remedial Response, Administrative Records for Decisions on Selection
of CERCLA Response Actions. May 29, 1987.
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9831.6a
The record shall contain information upon which the decision on selection of
the response action was based. The record shall be maintained at or near the
site, and a copy shall be maintained at the [name of State lead agency
receiving the cooperative agreement].
H. Community Relations
"The State agrees to prepare and implement a community relations plan for
this site. The State further agrees'to comply with the National Contingency
Plan and all relevant EPA policy and guidance on community relations,
especially Chapter 6, Community Relations in Suoerfund: A Handbook when
implementing the community relations plan throughout the response."
I. Deviation From CERCLA. As Amended Bv SARA
State laws or other restrictions may prevent States from acting consistent with
CERCLA, as amended by SARA. In those instances, the State must agree to
promptly notify and consult with EPA regarding the use of such laws or other
restrictions.
"Where State laws or other restrictions may prevent the State from acting
consistent with CERCLA, as amended by SARA, the State agrees to promptly
notify and consult with EPA regarding the use of such laws or other
restrictions."
J. Maintaining Enforcement-Related Documents in a Central File
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CERCLA FUNDING OF
POTENTIALLY RESPONSIBLE PARTY OVERSIGHT BY
STATES AT NATIONAL PRIORITIES LIST SITES
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9831.6b
CERCLA FUNDING OF
POTENTIALLY RESPONSIBLE PARTY OVERSIGHT BY
STATES AT NATIONAL PRIORITIES LIST SITES
PURPOSE
The purpose of this guidance is to assist EPA Regional offices and States in
funding, under a CERCLA cooperative agreement (CA), of State oversight of
potentially responsible parties (PRP) conducting remedial investigations (RI),
feasibility studies (FS), remedial designs (RD), and remedial actions (RA) at sites on
the National Priorities List (NPL). The guidance also discusses funding of States
during an EPA-lead enforcement response action.
BACKGROUND
The Office of General Counsel has concluded that CERCLA funding may be
provided to States to support a broad range of enforcement-related response
activities. This is in addition to State-conducted, Fund-financed RI/FS activities to
support enforcement actions at NPL sites. The reason is that such activities are
included under CERCLA Section 104(b) and consequently are eligible for CERCLA
funding.*
'* The role of States in oversight of a PRP-conducted RI/FS and RD/RA depends
on whether the State or EPA negotiated and entered into the administrative order
(AO) or consent decree (CD). If the State negotiated the AO or CD, then the State
has the lead for oversight of the PRP's work. If EPA negotiated the AO or CD,
then EPA has the lead for oversight of the PRP's work. When EPA has the lead
for oversight, the State may receive management assistance funding in order to
review PRP response activities at the site.
The State may also, under certain circumstances, undertake various, mutually
agreed upon oversight activities at Federal lead sites. These circumstances include
Federal CERCLA Section 104 and 106 settlements with PRPs in which the State is a
participant, as authorized under Section 121(f) of CERCLA, as amended by SARA,
and State oversight that can result in a more effective and timely response to PRP
implementation activities. Furthermore, States may be used in place of EPA
contractors to meet the qualified third party oversight requirements outlined in
Section 104(a)(l) of CERCLA, as amended by SARA.
L.A. DeHihns, Authority to Use CERCLA to Provide Enforcement Funding
Assistance to States. July 20, 1984, and February 12, 1986.
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9831.6b
GUIDANCE
In determining whether to fund a State to provide oversight of a PRP response
action, the Region should employ the same standard of review it uses to evaluate
contractors providing oversight for the Regional office. The Region should also
assess the State's ability to meet the classification criteria outlined in the EPA and
Association of State and Territorial Solid Waste Management Officials (ASTSWMO)
policy memorandum of October 2, 1984, entitled "EPA/State Relations in
Enforcement Actions for Sites on the National Priorities List." In addition, EPA
Headquarters is in the process of developing additional classification guidance based
upon SARA and the upcoming revisions to the National Contingency Plan (NCP). In
reviewing a CA for award, the criteria should be applied to the site. Once the
State requests CA funding, the Region should pay particular attention to the
itemized budget submitted along with the CA application. The budget should be.
carefully reviewed to ensure that adequate resources and staff expertise are devoted
to the site. Along with these considerations, the conditions and requirements
outlined in this guidance must be incorporated in the CA application prior to award.
The guidance explains the conditions for awarding funds and lists the fundable
tasks for each activity. This guidance does not preclude the Regions from including
additional enforcement-related conditions in the application, if warranted.
Furthermore, it is imperative that applicable provisions outlined in Appendix F of
the EPA manual State Participation in the Suoerfund Program be incorporated in
each CA application. See Attachment A for those applicable provisions and sample
language for the enforcement provisions.
State yearly funding requirements for activities outlined in this guidance must
t>e included in the Region's Superfund Comprehensive Accomplishments Plan (SCAP).
The Region and State should be working closely during the SCAP development
process to ensure that State funding requirements are adequately addressed in the
final plan. When developing CA applications for these activities, the State Project
Officer (SPO) should work closely with the Remedial Project Manager (RPM) and
Regional Counsel to ensure that the application is sufficient and complete. SPOs
should also coordinate closely with their Headquarters Regional Coordinator in the
Office of Waste Programs Enforcement (OWPE). The Regions will continue to be
responsible for awarding the CA.
I. Funding State Oversight of PRPs - State Enforcement Response
If a State successfully negotiates to have the PRPs conduct the RI/FS or
RD/RA, it will be in the State's interest to oversee their work. States should
obtain a commitment from PRPs to pay for their RI/FS oversight costs when
negotiating with PRPs, prior to either requesting funds from EPA or drawing down
on monies already awarded in a CA. The PRPs may want to reimburse States for
their oversight costs at the end of each year or at the completion of the response
action, rather than providing the monies up front. In this case, States should
assure initial funding of oversight of the PRPs' RI/FS. This may be done using
State funds or EPA funds, to the extent available. Where EPA funds are used,
States may pay back EPA upon receipt of the PRPs' money, or EPA may receive the
money directly from the PRPs.
20
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9831.6b
There may be situations where post-SARA State RI/FS negotiations and
settlements by States do not include a PRP commitment to pay for oversight. The
Regional office must remind the States of the CERCLA Section 104(a)(l) requirement
and closely scrutinize State capability or willingness to seek oversight costs before
proceeding with a CA. Ordinarily, Regions will not fund State oversight costs when
States have not obtained such costs in an order or decree. In addition, States
should arrange for PRPs to pay for their RD/RA oversight as well when negotiating
with PRPs.
A.I Conditions for Funding Under a Cooperative Agreement: Oversight of RI/FS
In order to receive funding from EPA for oversight of a PRP-conducted RI/FS,
the State must include the following information in its CA application and be
prepared to make the following assurances in the final CA. Except where noted,
the following information and assurances must be certified by the State's Governor,
Attorney General, designee, or appropriate State agency.
1. The State must have issued or negotiated an enforceable order, decree, or
other enforceable document requiring the PRP to conduct an RI/FS in
accordance with CERCLA, as amended by SARA, the NCP, and applicable
EPA policy and guidance. A copy of the order must be included in the
CA application.1*
2. The State must provide a letter outlining the State enforcement
authorities that resulted in the issuance or negotiation of the
enforcement document.
*
3. The State must assure that it believes the PRPs have the technical,
managerial, and financial capability to conduct the RI/FS.
4. The State must assure that it will prepare a Record of Decision (ROD) or
other decision document and select a remedy that is consistent with
CERCLA, as amended by SARA, the NCP, and relevant EPA policy and
guidance.
5. The State must conduct a community relations program in accordance
with the NCP and applicable EPA guidance.6
If the enforceable document is a three party agreement (EPA, State, and
PRP), the CA need only cite it since a copy should already be in EPA's
possession.
See the document Community Relations in Suoerfund: A Handbook, especially
Chapter 6 which deals with community relations during enforcement actions.
21
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9831.6b
6. The State must compile and maintain an administrative record as required
under Section 113 of CERCLA, the NCP and applicable EPA guidance.
7. The State must agree to the following general principles concerning PRP
payment of RI/FS oversight costs, which may be spelled out in the
State's order or decree:
a. The State will document its oversight costs.
b. PRPs will reimburse EPA for its oversight costs (either directly or
through the State).
c. PRPS agree that they are liable to EPA under Section 107 of
CERCLA for unpaid oversight costs, plus associated enforcement
costs and interest from the date of demand by EPA or State.
8. In the event that the State determines after execution of the CA that
State laws or other restrictions prevent the State from acting consistent
with CERCLA, as amended by SARA, the State must agree to promptly
notify and consult with EPA regarding the use of such laws or other
restrictions'1.
A.2 Conditions for Funding Under a Cooperative Agreement: Oversight of RD/RA
In order to receive funding from EPA for oversight of a PRP-conducted
RD/RA, the State must include the following information in its CA application and
$e prepared to make the following assurances in the final CA. Except where noted,
the following information and assurances must be certified by the State's Governor,
Attorney General, designee, or appropriate State agency.
1. The State must have issued or negotiated an enforceable order, decree, or
other enforceable document requiring the PRP to conduct an RD/RA in
accordance with CERCLA, as amended by SARA, the NCP, and applicable
EPA policy and guidance. A copy of the order must be included in the
CA application."
2. The State must provide a letter outlining the State enforcement
authorities that resulted in the issuance or negotiation of the
enforcement document.
In the course of negotiating the CA, consistency with Section 121 and Section
122 (notice, public participation and covenants not to sue) should be assured.
If the enforceable document is a three party agreement (EPA, State, and PRP),
the CA need only cite it since a copy should already be in EPA's possession.
22
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9831.6b
3. The State must assure that it believes the PRPs have the technical,
managerial, and financial capability to conduct the RD/RA.
4. The State must submit a ROD or other decision document consistent with
CERCLA, as amended by SARA, the NCP and relevant EPA policy and
guidance. This documentation must be included in the CA application or
be submitted as a condition to drawing down on oversight funds/
Funding will not be allowed unless EPA formally concurs in writing with
the State's ROD or other decision document.
5. The State must conduct a community relations program in accordance
- with CERCLA, as amended by SARA, the NCP and applicable EPA
guidance.
6. In the event that the State determines after execution of the CA that
State laws or other restrictions prevent the State from acting consistent
with CERCLA, as amended by SARA, the State must agree to promptly
notify and consult with EPA regarding the use of such laws or other
restrictions*.
B.I Fundable Oversight Tasks: RI/FS
In preparing and reviewing the CA application, it might be helpful for States
and Regions to consider oversight as consisting of review tasks, field-related tasks,
and enforcement tasks. A community relations program is also an essential aspect
pf the response action. States should attempt to specify, in the enforceable
document, the roles and responsibilities of the PRP as distinguished from the roles
and responsibilities of the State in each of these major activities.
1. Review tasks conducted by the State include:
a. Review preliminary planning documents;
b. Review and comment on scope of work and work plans;
If the enforceable document is a three party agreement (EPA, State, and PRP),
the CA need only cite the ROD since a copy should already be in EPA's
possession.
In the course of negotiating the CA, consistency with Section 121 and Section
122 (notice, public participation and covenants not to sue) should be assured.
23
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9831.6b
c. Review and comment on standard operating procedures (such as
quality assurance/quality control plans, sampling plans, health and
safety plans, and data management plans);
d. Review and comment on draft RI reports;
e. Review final RI reports;
f. Review and discuss FS objectives;
g. Review and comment on draft FS;
h. Review final FS;
i. Prepare the proposed plan for remedial action and draft and final
ROD;
.j. Compile and respond to public comments on the RI/FS and proposed
plan for remedial action;
k. Review PRP monthly progress reports;
1. Organize and participate in technical meetings on the RI/FS with
the PRPs, PRP contractors, and/or EPA.
2. Field-related tasks conducted by the State include:11
a. Conduct environmental monitoring (e.g., air, water);
b. Take and analyze split samples or confirmatory samples;
c. Provide on-site presence/inspection of PRP field activities.
3. Enforcement tasks conducted by the State include:
a. Track deliverable schedules and submission dates spelled out in the
enforcement document;
b. Initiate enforcement action for non-compliance with terms and
conditions of the enforcement document.
4. Community relations tasks conducted by the State include:
a. Notify local newspapers of site activities planned or underway;
h The amount and scope of field-related tasks to be funded by EPA during
oversight should be negotiated on a case-by-case basis.
24
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9831.6b
b. Conduct discussions with the affected community in the locale of the
site;
c. Prepare community relations plans;
d. Hold public comment period on the RI/FS;
e. Brief local and State officials;
f. Hold public meetings on technical aspects of the site;
g. Prepare fact sheets and press releases and disseminate information;
h. Prepare summaries of public concerns.
B.2 Fundable Oversight Tasks: RD/RA
1. Fundable oversight tasks: RD
a. Review tasks conducted by the State for RD include:
o Participate in technical design briefings for RD initiation;
o Review design scopes of work;
\ o Conduct technical meetings on the RD with the PRPs, PRP
contractors, and/or EPA;
o Assist in reviewing preliminary design documents and design
changes which may affect remedy selection;
o Review and comment on value engineering screening submittals;
o Review and comment on quality assurance project plans, site
safety plans, and intermediate design documents;
o Review and comment on plans for operation and maintenance
developed by PRP;
o Review final RD.
b. Enforcement tasks conducted by the State for RD include:
o Track deliverable schedules and submission dates spelled out in
the enforcement document.
o Initiate enforcement action for non-compliance with terms and
conditions of the enforcement document.
25
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9831.6b
c. Community relations tasks conducted by the State for RD
include:
o Prepare fact sheets and notify public on RD activities and on
what the RD is expected to entail;
o Continue prior community relations activities as needed.
2. Fundable oversight tasks: RA
a. Review tasks conducted by the State for RA include:
o Review and comment on PRP or PRP contractor work plans,
site safety plans, and QA/QC procedures;
o Review any construction change orders that may alter the
approved remedy and amend the CA, prepare a discussion of
significant changes from the proposed plan in the Record of
Decision (ROD), and/or amend the ROD as appropriate subject
to adoption of the amended ROD by EPA;
o Review and comment on draft and final RA reports;
o Participate in pre-construction and pre-final construction
conferences;
o Review PRP or PRP contractor monthly progress reports;
o Organize and participate in technical meetings on the RA with
the PRPs, PRP contractors, and/or EPA;
o Ensure that the remedy is completed and operational.
b. Field-related tasks conducted by the State for RA include:
o Provide monitoring and oversight of construction activities;
o Take and analyze split samples or confirmatory samples;
o Be present at trial runs and shakedowns of major equipment;
o Participate in pre-final and final inspections and project
acceptance.
c. Enforcement tasks conducted by the State for RA include:
o Track deliverable schedules and submission dates spelled out in
the enforcement document;
26
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9831.6b
o Initiate enforcement action for non-compliance with terms and
conditions of the enforcement document.
d. Community relations tasks conducted by the State for RA
include:
o Revise original community relations plans to incorporate any
changes required due to remedial design and construction
activities;
o Conduct discussions with the affected community on the
selected remedy and planned construction activities;
o Hold meetings with the public during the RA.
II. Funding State Management Assistance and Oversight of PRPs - Federal
Enforcement Response
A. Management Assistance During a Federal Enforcement Response
If EPA has negotiated the administrative order or consent decree with the
PRPs, EPA will have the lead for oversight of PRP activities and for community
relations. In this situation, States may receive funding for management assistance.
Management assistance essentially will involve review tasks and is explained in
Volume I of the EPA manual State Participation in the Superfund Program. EPA
will not fund States to hire contractors for management assistance tasks.
B. Oversight During a Federal Enforcement Response
The State may also, under certain circumstances, undertake various, mutually.
agreed upon oversight activities in place of EPA. These circumstances may include
the following:
1. Federal CERCLA settlements with PRPs in which the State is a
participant, as authorized under Section 121(f) of CERCLA, as
amended by SARA.
2. State oversight that can result in a more effective and timely
response to PRP implementation activities.
3. Furthermore, States may be used in place of EPA contractors to
meet the qualified third party oversight requirements outlined in
Section 104(a)(l) of CERCLA.'
Under this scenario, the State would conduct oversight activities in-house.
27
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9831.6b
This means the State would be conducting some review, field-related, and/or
community relations tasks along with or in place of EPA or EPA's contractor. For
each task, the CA application should clearly outline the roles and responsibilities of
the State as distinguished from the roles and responsibilities of EPA or EPA's
contractor.
Where EPA has the lead for oversight, EPA encourages the State to conduct
oversight tasks only if it has the in-house capability to do the work. Generally,
EPA will not fund the State to hire contractors for oversight tasks unless it
provides adequate justification for their use. Furthermore, EPA will not fund States
to conduct oversight tasks that duplicate EPA's efforts.
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9831.65
ATTACHMENT A
PROVISIONS SPECIFIC TO STATE-LEAD ENFORCEMENT OVERSIGHT
OF POTENTIALLY RESPONSIBLE PARTIES
State-lead enforcement oversight Cooperative Agreements (CA) should contain
the provisions found in Sections 1 (A-F) and 2 (B-M, O-T) of Appendix F of the
EPA manual State Participation in the Suoerfund Program. In addition, they should
also contain the following provisions.
A. Issuing an Enforceable Order. Decree, or Other Enforceable Document
Before EPA funds oversight, the State is required to issue an enforceable
order, decree, or other document that requires the PRP to conduct a RI/FS and/or
RD/RA in accordance with CERCLA, as amended by SARA, the NCP, and applicable
EPA guidance. A copy of this enforcement agreement must be included in the CA
application.
"The State issued a [tvoe of enforceable document] for the [name of site]
dated [ ], requiring a [type of response action] in accordance with
CERCLA, as amended by SARA, the NCP, and applicable EPA policy and
guidance. A copy of this enforcement agreement is attached to the
Cooperative Agreement application."1
$. State Enforcement Authorities
In providing CERCLA funds for State-lead oversight of PRPs, the State has
shown it possesses the legal authorities to pursue administrative or judicial
enforcement action to ensure performance of the response action. EPA asks the
State to outline these authorities in the CA application.
"The State possesses the legal authorities to pursue administrative or judicial
enforcement action to ensure performance of the private party response action.
The State agrees to use these authorities if private parties (1) do not meet the
terms of the order, decree, or other enforceable document, or (2) are unwilling
to undertake subsequent phases of the response action. These legal authorities
are outlined in a letter from [official providing letter], dated [ ], and
is attached to the Cooperative Agreement application."
If the enforceable document is a three party agreement (EPA, State, and
PRP), the CA should read "and EPA" after "The State" and only cite the
enforceable document since a copy should already be in EPA's possession.
29
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9831.6b
C. Ability of PRPs to Undertake and Finance the Response Action
In settling with PRPs to undertake the response action, the State believes that
the PRPs have the technical, managerial, and financial capability to conduct the
response action.
For RI/FS oversight: -
The State believes that the PRP has the technical, managerial, and financial
capability to undertake the RI/FS."
For RD/RA oversight:
"The State believes that the PRP has the technical, managerial, and financial
capability to undertake the RD/RA."
D. Consistency with EPA Policy and Guidance2
In overseeing PRP conduct of response actions, the State must assure that
such actions are consistent with CERCLA, as amended by SARA, the NCP, and
applicable EPA policy and guidance.
For RI/FS oversight:
"In conducting RI/FS oversight funded by this Cooperative Agreement, the
State agrees to ensure that the private party RI/FS is consistent with
.Ť CERCLA, as amended by SARA, the National Contingency Plan, and relevant
EPA policy and guidance, including but not limited to:
''.-.. . ' ' .
o U.S. EPA, Office of Emergency and Remedial Response, Guidance on
Remedial Investigations Under CERCLA and Guidance on Feasibility
Studies Under CERCLA. June 1985.
o U.S. EPA, Office of Solid Waste and Emergency Response, Interim
Guidance on Potentially Responsible Party Participation in Remedial
Investigations and Feasibility Studies, (pending).
o U.S. EPA, Office of Solid Waste and Emergency Response, Interim
Guidance on Compliance with Applicable or Relevant and Appropriate
Requirements. Federal Register. August 27, 1987."
The policies cited in this section should not be construed as all inclusive or
entirely relevant to each site-specific enforcement action. Other policies that
may exist or be developed in the future may also need to be referenced in a
Cooperative Agreement. In addition, some of the policies listed above are
currently being revised (such as the RI/FS and RD/RA guidances).
30
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9831.6b
For RD/RA oversight:
"In conducting RD/RA oversight funded by this Cooperative Agreement, the
State agrees to ensure that the private party RD/RA is consistent with
CERCLA, as amended by SARA, the National Contingency Plan, and relevant
EPA policy and guidance, including but not limited to:
o U.S. EPA, Office of Emergency and Remedial Response, Manual Suoerfund
Remedial Design and Remedial Action Guidance. June, 1986."
E. Selection of Remedy
"At the completion of the private party RI/FS, the State agrees to recommend
a proposed remedial action plan, develop a Record of Decision (ROD) or other
decision document, and select the remedy consistent with CERCLA, as amended
by SARA, the National Contingency Plan, and relevant EPA policy and
guidance, including but not limited to:
o U.S. EPA, Office of Solid Waste and Emergency Response, Interim
Guidance on Suoerfund Selection of Remedy. December 24, 1986."
F. Changes to Scope of Work
The State must agree to notify EPA in the event that State or PRP plans or
actions substantially change the scope of work for tasks funded under the CA.
^ "The State agrees to notify EPA in the event that State or PRP plans or
actions substantially change the scope of work -for tasks funded under this
Agreement. Prior to issuance, such changes will be submitted to EPA for
review to ensure technical adequacy and compliance with the terms of this
Agreement."
G. Community Relations
"The State agrees to prepare and implement a community relations plan for
this site. The State will not initiate oversight field activities until EPA has
approved the plan. The State further agrees to comply with the National
Contingency Plan and relevant EPA policy and guidance on community
relations, especially Chapter 6, Community Relations in Suoerfund: A Handbook
when implementing the community relations plan throughout the response."
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9831.6b
H. Administrative Record
"The State agrees to compile and maintain an administrative record consistent
with Section 113 of CERCLA, as amended by SARA, the National Contingency
Plan, and relevant EPA policy and guidance, including but not limited to:
o U.S. EPA, Office of Waste Programs Enforcement/Office of Emergency
and Remedial Response, Administrative Records for Decisions on Selection
of CERCLA Response Actions. May 29, 1987.
"The record shall contain information upon which the decision on selection of
the response action was based. The record shall be maintained at or near the
site, and a copy shall be maintained at the [name of State lead Agency
receiving the cooperative agreement).*
I. PRP Payment of Oversight Costs
"The State agrees with the following general principles concerning PRP
payment of RI/FS oversight costs, which may be spelled out in the State's
order or decree:
o The State will document its oversight costs;
o PRPs will reimburse EPA for its oversight costs (either directly or
through the State); and
\ o PRPs agree that they are liable to EPA under Section 107 of CERCLA for
unpaid oversight costs, plus associated enforcement costs and interest
from the date of demand by EPA or State."
J. Deviation From CERCLA. As Amended Bv SARA
State laws or other restrictions may prevent States from acting consistent with
CERCLA, as amended by SARA. In those instances, the State must agree to
promptly notify and consult with EPA regarding the use of such laws or other
restrictions.
"Where State laws or other restrictions may prevent the State from acting
consistent with CERCLA, as amended by SARA, the State agrees to promptly
notify and consult with EPA regarding the use of such laws or other
restrictions."
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COST ESTIMATES FOR BUDGETING STATE ENFORCEMENT ACTIVITIES
-------
9831.6C
COST ESTIMATES FOR BUDGETING STATE ENFORCEMENT ACTIVITIES
Cost estimates have been developed for CERCLA enforcement activities, which
are fundable through EPA cooperative agreements (CA). The cost estimates are to
be used solely as. a. guide in assisting the State and EPA in budgeting these
activities during development of the Superfund Comprehensive Accomplishments Plan
(SCAP).
EPA has set forth policy on the types of activities to be funded through CAs
in the Office of Solid Waste and Emergency Response (OSWER) guidances which are
listed below and are part of this package.
o CERCLA Funding of State Enforcement Actions at National Priorities List
Sites (OSWER Directive Number 9831.6a).
o CERCLA Funding of Oversight of Potentially Responsible Parties by States
at National Priorities List Sites (OSWER Directive Number 9831.6b).
Each of these guidances describes the conditions for funding under a cooperative
agreement and the activities that will be funded. What follows are cost estimates
which States and EPA may use, at their discretion, for budgeting each of the
activities during the SCAP development process.
In developing these cost estimates, staff were interviewed in the EPA Office
of Enforcement and Compliance Monitoring (OECM) and the Office of Waste
Programs Enforcement (OWPE). Both offices maintain workload budget models which
assign resources to different activities. In both models, the activities are similar to
fhose fundable under CAs.
The OECM model contains budget estimates for EPA attorneys and other legal
costs. The OWPE model contains budget estimates for both intramural (EPA
technical and administrative) and extramural (contractor) costs. The extramural
costs were based on a separate OWPE report. At enforcement sites all three
general cost categories - (1) legal, (2) technical and administrative, and (3)
contractor are realized in varying proportions depending on the activity taking
place.
The following sections discuss the EPA budget models. The first section
discusses the underlying assumptions applicable to the models and to each
enforcement activity. The remaining sections provide budget estimates'for each
activity and the considerations that may have an impact on the estimates.
33
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9831.6C
ASSUMPTIONS
The three following general assumptions should be made:
1. One full time equivalent (FTE) is equal to 2,080 hours per year based on
220 active days (out of 260). An FTE includes technical and
administrative costs, as well as travel and communications. One FTE,
based on a mean salary of $30,000 a year, is equal to $52,500.
2. An overall rate of $60 per Level of Effort (LOE) hour was used to
estimate the extramural costs.
3. These cost estimates are based solely on Federal experience. Although
States may employ similar cost estimates when developing their SCAP
requests actual State costs funded through CA may be significantly lower
than described by the models.
POTENTIALLY RESPONSIBLE PARTY SEARCHES'
PRP search procedures have become more clearly defined as EPA's program
experience has increased. Additionally, EPA has developed a PRP search manual
which serves to streamline the process and reduce the variance in costs. The costs
may vary depending on the number of PRPs at the site. The point at which a PRP
search is terminated is an additional consideration in the cost estimate. PRP
searches are to be substantively completed in order to issue general notice letters
sufficiently in advance of the RI/FS special notice to allow PRPs to come together.
Nonetheless, at some sites, EPA Regions are continuing PRP search activities during
negotiations and throughout the remedial investigation and feasibility study (RI/FS)
*nd even into the remedial design and remedial action (RD/RA). While these search
actions are appropriate, the costs of PRP searches should not be attributed to these
activities but rather should be attributed to the PRP search activity.
Average Duration of PRP Search: 2 Quarters (or 6 months)
Average Cost Estimate: $15,225 - Technical and Administrative
$50,000 - Extramural
$ 7,875 - Legal
$73,100 - Total
The PRP search cost includes names and addresses of generators, but does not
include information on the volume or nature (especially hard evidence that the
materials were hazardous substances) of the hazardous substances or a
volumetric ranking, or the PRP's ability to pay. Information on the volume
and nature of the substances, a volumetric ranking, and ability to pay are part
of the NEAR process. This is described as "NEAR information Collection" in
the OWPE workload budget model.
34
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9831.6C
ISSUANCE OF NOTICE LETTERS AND NEGOTIATIONS6
Costs for issuing notice letters and conducting negotiations vary depending on
the number of PRPs at a site. The cost of issuing notice letters and conducting
negotiations also varies depending oh the phase of response, RI/FS or RD/RA.
Since RD/RA negotiations involve selection of the remedy and development of the
Record of Decision (ROD) or other decision document, this activity usually takes
longer but requires less extramural support.
Average Duration of Notice Letter
Issuance and Negotiations for RI/FS:
Average Cost Estimate:
2 Quarters (or 6 months)
$14,175 Technical and Administrative
$50,000 - Extramural
$13,125 - Legal
Average Duration of Notice Letter
Issuance and Negotiations for RD/RA
and Operation and Maintenance:
Average Cost Estimate:
$77,300 - Total
3 Quarters (or 9 months)
$18,375 - Technical and Administrative
$30,000 - Extramural
$ 7,875 - Legal
svoaKsaxs
$56,250 - Total
ADMINISTRATIVE AND JUDICIAL ENFORCEMENT ACTIONS
Most of the current data on 106 injunctive cases were based upon cases
referred prior to completing the RI/FS. Future cases will not be referred until
after the RI/FS is completed. Remedies and supporting data should be well-defined
for future cases. The Administrative Record will serve as the basis of support for
the technical remedy that is selected. The estimates below reflect these factors.
Average Duration of Administrative
and Judicial Enforcement Actions:
14 Quarters (or 42 months)
Average Cost Estimate:
$ 68,250 - Technical and Administrative
$284,000 - Extramural
$ 10,500 -Legal
$362,750 - Total
This category includes issuance of the notice letters. Also, for RI/FS it
includes a draft order and SOW. For RD/RA it includes a draft consent
decree and proposed work plan. It does not include judicial referral of the
consent decree.
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9831.6C
OVERSIGHT OF RI/FS
RI/FS oversight costs may increase because of the new requirements of the
Superfund Amendments and Reauthorization Act (SARA). For a PRP-conducted
RI/FS, SARA requires competent third party oversight personnel and allows qualified
contractors to conduct the work. EPA is currently developing guidance that will
define more clearly what appropriate oversight should entail during hazardous waste
site cleanups (RI/FS and RD/RA). This guidance when issued should help with more
effective cost estimates of such oversight.
Average Duration of RI/FS Oversight: 10 Quarters (or 30 months)
Average Cost Estimate: $ 99,750 - Technical and Administrative
$200,000 - Extramural
$ 0 - Legal
$299,750 - Total
OVERSIGHT OF RD/RA
A project's construction costs cannot be precisely predicted at the completion
of the RI/FS, and the project error range is as much as 50 percent more to 30
percent less than estimated costs. Non-construction specifications and
environmental controls may require more review than a typical construction project
not related to hazardous waste. The costs for these controls are difficult to
predict. Overall, however, project design and construction costs and the costs to
review the design are interrelated and somewhat predictable given the following
assumptions:
o Construction costs for Superfund remedies are approximately 50 percent
of the cost of total remedial action; and they exclude transportation,
disposal, incineration, and other such costs.
o The estimated average RA cost is $10 million, but may increase to $20
million by 1989 due to SARA's requirement of more permanent remedies
which may call for using alternative technologies.
o Design costs are roughly 6 percent of the total project construction
costs.
o Design review costs are roughly 25 percent of design costs.
Again, EPA is currently developing oversight guidance that will set forth detailed
procedures for RD/RA oversight.
36
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Average Duration of RD Oversight:
Average Cost Estimate:
9831.6c
4 Quarters (or 12 months) .
$ 31,500 - Technical and Administrative
$150,000 - Extramural
$ 0 - Legal
m======= '
$181,500 - Total
Average Duration of RA Oversight:
Average Cost Estimate:
12 Quarters (or 36 months)
$ 94,500 - Technical and Administrative
$300,000 - Extramural
$ 0 - Legal
vsssasss ,
$394,500 - Total
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RECOMMENDED PROCEDURES FOR
HEADQUARTERS/REGIONAL REVIEW AND CONCURRENCE OF
INITIAL ENFORCEMENT COOPERATIVE AGREEMENTS
-------
9831.6d
RECOMMENDED PROCEDURES FOR HEADQUARTERS/REGIONAL REVIEW
AND CONCURRENCE OF INITIAL ENFORCEMENT COOPERATIVE AGREEMENTS
1. PROCEDURES FOR REQUESTING FUNDS AND REVISING THE CASE
MANAGEMENT-BUDGET DRAFT COOPERATIVE AGREEMENT APPLICATION
o The Region should request cooperative agreement funds during the SCAP
development process. The SCAP should be revised quarterly, if necessary.
The Regixm should consult with the respective States prior to developing
and revising the SCAP. .
o The State may develop a cooperative agreement application and submit it
to the Regional State Project Officer (SPO).
o The Regional Coordinator (RC) in the Compliance Branch, Office of Waste
Programs Enforcement (OWPE), will review the draft application in
coordination with the Contracts Management Section (CMS) in the
Technical Support Branch, OWPE.
o OWPE will send its comments on the application to the SPO. The Region
should give the State combined EPA comments (HQ and Region). The
State will then prepare a final application for submittal to the Regional
Administrator for award.
2. REGIONAL SUBMITTAL AND HEADQUARTERS SIGN-OFF FINAL
COOPERATIVE AGREEMENT APPLICATION
o CMS will receive a copy of the final cooperative agreement application,
which will have a commitment notice attached. The dollar amount for
award, cooperative agreement number, and description should already be
entered on the commitment notice.
o CMS and the RC will review the final application and have the
commitment notice signed by the appropriate Headquarters managers. For
CAs of S250K. or less, the Director of OWPE's signature is required. For
CAs of over S250K, the Assistant Administrator of the Office of Solid
Waste and Emergency Response's signature is required.
o After signatures have been obtained, CMS will obtain the proper
accounting information from OWPE's Program Management and Support
Office (PMSO).
o After signatures are obtained and accounting information has been
entered on the commitment notice, the CMS will send only the
commitment notice back to the Region for use in awarding the CA.
Delegation has given CA award authority to the RA. (CMS will keep the
copy of the CA application and a photocopy of the commitment notice on
file for budget purposes). The SPO will send a signed copy of the CA
document to CMS after award and acceptance by the State.
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