UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OSVER Directive ••••-9831.9
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Questions and Answers About the State Role in Remedy
Selection at Non-Fund-Financed Enforcemen
FROM: Afi^yDoVi R. Clay, Assistant Admin istrXtJ?r t
Jr /aw
TO: V Regional Administrator ' /
Regions I - X I
I. PURPOSE
This memorandum1 describes circumstances under which States
may select and implement a remedy at National Priorities List (NPL)
sites without first obtaining EPA concurrence. Section 300.515(e)
of the National Contingency Plan (NCP), State involvement in
selection of remedy, specifically addresses the State role in
remedy selection. The NCP provides that a State may select a
remedy (and publish the proposed plan) without EPA concurrence at
non-Fund-financed State-lead enforcement NPL sites. This directive
defines "non-Fund-financed" in terms of State-lead enforcement NPL
sites2. Additionally, this directive explains when a State must
obtain EPA concurrence on a CERCLA remedy at an NPL site.
Certain States have requested guidance regarding the
situations under which a State may select and implement a remedy
without EPA concurrence. Generally, States and EPA Regions are
knowledgeable about the reciprocal concurrence process for Fund-
financed NPL sites, where EPA and States have corresponding roles
in recommending and implementing remedies. However, there
generally appears to be less awareness of situations where a State
may select and implement a remedy without EPA concurrence.
V The policies set out in this memorandum are not final
agency action, but are intended solely as guidance. They are not
intended, nor can they be relied upon, to create any rights
enforceable, by any party in litigation with the United States.
The Agency reserves the right to change this guidance at any time
without public notice.
*/ Enforcement sites are sites where responsible parties are
compelled, by order or decree, to perform response actions.
PriMtd on Rtcycltd Paptr
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CSWER Directive - 9331.9
This memorandum explains certain sections of the NCP that are
pertinent to the State role in remedy selection. Regional staff
may help resolve questions about remedy selection requirements by
discussing information in this memorandum with appropriate State
staff. Open and direct communication between the Regional and
State offices on topics such as this greatly benefits the EPA/State
relationship and ultimately the success of site cleanups.
II. BACKGROUND
Subpart F of the NCP (40 CFR 300.500 et seq. ) discusses
requirements for State participation and involvement in CERCLA-
authorized response actions. It also includes the minimum
requirements for ensuring that all States are provided an
opportunity for "substantial and meaningful" involvement in the
initiation, development, and selection of remedial actions, as
mandated by CERCLA 121(f)(l).
As discussed in the preamble to the NCP (55 FR 8783, March 8,
1990), EPA believes that to ensure consistency among remedies
implemented at sites, EPA retains final responsibility for remedy
selection at sites where Fund money or EPA enforcement authority is
used. However, to provide a "significant and meaningful role for
State involvement in the cleanup process," EPA adopted in the NCP
the reciprocal concurrence process for Fund-financed NPL sites. In
this process, a State prepares a ROD and must obtain EPA
concurrence and adoption of the remedy, or EPA prepares the ROD and
seeks State concurrence. However, for non-Fund-financed State-lead
enforcement sites, when a State proceeds under its own enforcement
authority and sources of funding other than the CERCLA Trust Fund3,
a State may select a remedy (and publish a proposed plan) without
EPA concurrence. Section 300.515(e)(2) of the NCP specifically
addresses EPA and State involvement in the preparatic of a ROD.
III. QUESTIONS AND ANSWERS ABOUT THE STATE ROLE IN REMEDY
SELECTION
QUESTION 1: Under what circumstances can a State select a remedy
without EPA concurrence at an NPL site?
ANSWER: States may select the remedy (and publish a proposed
plan) , without EPA concurrence, at NPL sites when the State has
been assigned the lead role for response action at the site, the
State is taking an enforcement action acting under State law, and
the State is not receiving funds from the Trust Fund for response
activities at the site. According to the NCP, "response as defined
V Trust Fund means the Hazardous Substance Superfund
established by section 9507 of the Internal Revenue Code of 1986.
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OSWER Directive = 9331.3-
by 101(25) of CERCLA, means remove, removal, remedy, or remedial
action, including enforcement activities related thereto." The
diagram in Attachment I summarizes the circumstances under which a
Stare r.ay select a remedy without EPA concurrence. These sites are
referred to as "non-Fund-financed State-lead enforcement sites."
QUESTION 2: When may a State proceed under its own enforcement
authority at an NPL site?
ANSWER: During annual EPA/State consultations, EPA may agree to
designate a State the lead at an NPL site for a non-Fund-financed
enforcement action. This means that EPA and the State agree that
response actions will be conducted pursuant to State law and funded
by PRPs and, if necessary (for enforcement activities) , by the
State itself. More specifically, 300.505(d)(3) states "(i)f a
State is designated as the lead agency for a non-Fund-f inanced
action at an NPL site, the Superfund Memorandum of Agreement shall
be supplemented by site-specific enforcement agreements between EPA
and the State which specify schedules and EPA involvement." EPA
may take back the lead from a State if the State does not comply
with the EPA/State agreement.
Where EPA and a State do not agree that a site is a non-Fund-
financed State-lead site, the State may still attempt to proceed
with response actions under its own authority without funding from
the Trust Fund. However, there is a potential for conflict with
EPA response actions where no lead designation has been made,
especially at NPL sites. Further, EPA is not bound by State
response actions and may decide to take a CERCLA response action
after the State has acted. Additionally, under CERCLA 122(e)(6),
once a Federally-approved RI/FS has been initiated at a site, no
PRP may undertake any remedial action at the site unless the
remedial action has been authorized by EPA. Thus, State-ordered
PRP remedial actions may not proceed post-Federally-approved RI/FS
without EPA authorization. If EPA decided to designate a State as
lead for post-RI/FS remedial actions, the lead designation may
include a CERCLA 122(e)(6) authorization for PRPs to proceed with
remedial action at the site as prescribed by the lead agency.
QUESTION 3: For a State enforcement-lead NPL site to be "non-Fund-
financed" does it mean that EPA has not spent Trust Fund money at
the site?
ANSWER: No. There are probably few, if any, NPL sites where EPA
has not spent Trust Fund money. For example, EPA has probably
funded, through the Trust Fund, PA/SIs at NPL sites. Previous EPA
funding at a site, regardless of the amount, does not determine
whether a site is "non-Fund-financed."
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OSWER Directive = 9331.9
QUESTION 4: For a State enforcement-lead NPL site to be "non-Fund-
financed," does it mean that there will be no future EPA funding
through the Trust Fund at the site?
ANSWER: Yes. If an NPL site is "non-Fund-financed," EPA has no
plans or expectations of providing funds via the Trust Fund for
site-specific enforcement actions and other response actions (i.e.,
cooperative agreement money) to the State. The term "non-Fund-'
financed" as it pertains to State- enforcement-lead sites and State
remedy selection refers to site-specific money. Receipt of Core
Program money, which is for non-site-specific activities (e.g.,
training), does not preclude the site from being "non-Fund-
financed." All non-site-specific activities that are necessary to
support a State's Superfund program are eligible for Core Program
money.
QUESTION 5: How is a site designated as a State enforcement-lead
NPL site by EPA?
ANSWER: EPA, during annual consultations with the States, may
designate a State as enforcement-lead if the Agency deems it
appropriate (and if the State agrees). However, a State may not
designate itself as lead agency at an NPL site without EPA
approval.
In considering whether a site should be designated as a state-
lead enforcement site, EPA will take into account whether EPA has
invested substantial resources at the site beyond the PA/SI and
listing process (e.g., whether EPA has completed the RI/FS).
Significant investment of EPA resources at a site may argue against
reassigning a lead designation from EPA to a State. EPA plans to
develop detailed guidance to assist Regions in determining when a
State may be enforcement-lead.
QUESTION 6: May the State select the remedy without EPA
concurrence at Fund-financed State-lead sites (where the Trust Fund
is paying for response actions)?
ANSWER: No. Remedies selected (and proposed plans drafted) by a
State at a Fund-financed site (e.g., where the Trust Fund is paying
for enforcement support or other response actions) must be approved
and adopted by EPA before the remedy can be implemented (or the
proposed plan can be published). Similarly, EPA must obtain State
assurances under 104 before EPA can proceed with a Fund-financed
remedy.
IV. CONCLUSION
There are circumstances where the State may select a remedy
(and publish the proposed plan) without EPA concurrence. In some
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OSWER Directive *f 9331.9
situations, the State may be acting independently of EPA. However,
when one governmental entity (EPA .or State) acts independently of
the other, conflicts can arise which adversely affect the quality
and timing of response actions at a site. In addition, without
EPA/State coordination and cooperation at a site, unnecessary
conflict and duplication of effort may occur. Therefore, pursuant
to § 300.505(d)(1) of the NCP, EPA and States should meet in the
early stages of response actions at a site to determine site
priorities and make lead and support agency designations.
If you have questions regarding this directive, please contact
Lynda Priddy of. the Office of Waste Programs Enforcement at FTS
(202) 475-8727 or mail code OS-510.
Attachment
cc: Directors, Waste Management Division
Regions I, IV, V, VII
Directors, Hazardous Waste Management Division
Regions III, VI, VIII, IX
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Division
Region X
CERCLA Enforcement Branch Chiefs, Regions I - X
CERCLA Enforcement Section Chiefs, Regions I - X
Regional Counsels, Regions I - X
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State Selection of Remedy at NPL Sites
-Will
'site-specific^
Superfund
money be
spent at the
site?
Yes
EPA selects remedy or must
approve the state recommendation.
No
State
designated
lead (with PRPs
authorized to proceec
under State
Border)?,
Yes
No
State may select a remedy under
State law, but a potential conflict
with an EPA remedy exists
(especially at NPL sites); further, if
section 122(e)(6) applies, PRP may
not undertake remediation without
EPA authorization.
State may select remedy, under
State law, without EPA
concurrence.
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