i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY I WASHINGTON, D.C. 20460 OCT 2 f OFFICE OF SOLID WASTE AND EMERGENCY flESPONSE OSWER DIRECTIVE 9831.8 MEMORANDUM SUBJECT: Counting State-lead Enforcement NPL Sites Toward the CERCLA section 116 (e) Remedial Action Start Mandate /..c_ /^Sr FROM: J. wlnstoTj Porter Assistant Administrator TO: Regional Administrators Regions I - X I . PURPOSE The purpose of this memorandum is to outline the criteria and procedures for counting State-lead enforcement National Priorities List (NPL) sites toward the CERCLA Section 116 (e) remedial action (RA) start mandate. The counting of State-lead enforcement NPL sites is but one element of an evolving strategy for State participation in the CERCLA enforcement program. There are many other important aspects, including the need for consistent remedies and coordination of enforcement activities at Federal-lead and State lead sites. II. BACKGROUND In our efforts to achieve the goal of 175 new RA starts by October 1989 and an additional 200 by October 1991, it is appropriate to include state-lead enforcement NPL sites where States have indicated a willingness and ability to manage site remediation in an appropriate manner and within reasonable time frame*, as noted below. In implementing this memorandum, the direction provided in the December 28, 1987 memorandum "OSWER Strategy for Management Oversight of the CERCLA Remedial Action Start Mandate" (OSWER Directive 9355.0-24) also applies to sites classified as state- lead enforcement. Of particular note is the application of the several key elements of Section 116 (e) which were discussed in that guidance. This includes whether a RA is "substantial and continuous" and whether the particular RA start is "in addition to those facilities on which some remedial action has commenced prior to enactment of SARA." ------- 983L.8 The following criteria must be met before counting State- lead enforcement sites toward the goals. Along with each criterion, some clarification is provided to assist the Regional offices in determining whether the criterion has been met. III. CRITERIA 1. The site is on the National Priorities List fNPLl. CERCLA specifies "Facilities on the National Priorities List." This interpretation does not include proposed NPL sites. 2. The site is covered by agreement between EPA and the State. NPL sites to be designated as State-lead enforcement from the date of this memorandum forward must be covered under a cooperative agreement, Superfund Memorandum of Agreement (SMOA) or other EPA-State enforcement agreement in order to be counted toward the Section 116(e) mandate. (Note that the proposed revisions to the NCP may require States to enter into a formal agreement with EPA to become the lead agency for enforcement action at an NPL site or to seek EPA concurrence on the remedy at an NPL site.) For sites designated as State-lead enforcement prior to this memorandum, the Region has the discretion to decide whether an agreement is necessary prior to issuing a finding on the consistency of the remedy with CERCLA cleanup standards. If a written agreement is not required for sites designated prior to this memorandum, the Region must still demonstrate that it worked closely with the State to ensure that the criteria set forth in this guidance have been complied with and that remedial action has commenced. 3. The remedial action to be performed is consistent with the cleanup standards of Section 121 of CERCLA. This criterion requires the Region to review the available documentation (such as the Remedial Investigation/Feasibility Study (RZ/PS), Record of Decision (ROD), State equivalent to the ROD or a consent decree) and any site work activity and determine if they collectively meet Section 121 cleanup standards, as provided below. First, the cleanup action must be a remedial action and not simply a removal. (Under current guidance, a RA represents one or more operable units of the remedy leading to final cleanup. See, OSWER Directive 9355.0-24.) Second, in reviewing the State's documentation that the cleanup is consistent with Section 121, the Region may encounter past State decisions on remedies that are documented differently from what we may expect as documentation in the future. If the Region finds that these ------- 9831.8 remedies and responses are consistent with Section 121, we will "grandfather" the documentation of these sites as set forth in the paragraphs below. Until the National Contingency Plan fNCPl is proposed, the Regions should review available documents for consistency with Section 121 of CERCLA. The key factors are whether the work is consistent with Section 121 cleanup standards and whether it will lead to the final remedy. Where the RI/FS, the ROD or other State decision document (such as a State administrative order or consent decree) are not self-explanatory, it may be necessary for the State to provide written clarification of the remedy. For remedial actions baaed upon decisions made after the NCP revisions are proposed. Regions must require a ROD for review using CERCLA Section 121 and the proposed NCP as the basis for evaluating the cleanup standards prescribed in the state documentation . Decisions on remedies made pre-SARA with the contract award for the RA occurring post-SARA will be eligible for the Section 116 (e) RA start mandate. If the RI/FS, ROD or other State decision document was signed pre-SARA but the RA did not commence until post-SARA, the RA need not strictly adhere to the requirements of Section 121 to be included in the RA start mandate. However, the cleanup must comply with the NCP cleanup standards in effect at the time, and all other criteria in this guidance must be met. If the RA commenced pre-SARA, the site will not be counted toward the RA mandate. 4 . The Regional A<^mjLni8^rator must document the finding that the State ROD for equivalent) meets CERCLA cleanup standards . The Regional Administrator must prepare and sign a formal written document finding that the State's remedy selection (e.g., ROD) is consistent with Section 121 cleanup standards. The Regional Administrator may sign the ROD itself or issue a separate letter. Such a finding must explicitly reserve EPA'S right to conduct the Section 121 (c) five year review and further reserve KPA's right to take enforcement actions under Sections 106 and 107 against the PRPs to assure that the remedy as w«u as any nece««ary additional future work are undertaken. This factor is important because PRPs may attempt, improperly, to argue that the Regional Administrator ' s signature bars EPA enforcement and also binds the Region, for all time, to only the remedy explicitly noted in the decision document and that no additional work can be required. ------- 9831.8 In making the finding, the Regional Administrator may delineate additional requirements necessary to ensure consistency with Section 121. In order for EPA to count the RA, the State must accept such conditions. If the State does not accept such conditions, the Regional Administrator may choose not to make this finding; in which case the site would not be counted toward the RA mandate and no argument could be made that EPA would be bound by the State decision on site remediation. In such a case, the EPA position must be set out in a written communication with the State. For a pre-SARA ROD where the RA commences after the enactment of SARA, the Regional Administrator must find that the RA meets the NCP cleanup standards in place at the time the ROD was signed in order for the site to be counted under CERCLA Section 116 (e). A formal document is needed for this finding and the above reservations of EPA rights must also be made. 5. The State and Potentially Responsible Parties (PRPs) have entered into an enforceable agreement for conduct of the remedial action or the State has issued an enforceable unilateral order that the PRPs are complying with. This criterion reflects EPA's belief that State settlements at NPL sites should be concluded by entering into an enforceable agreement, consent order or consent decree, or some other comparable enforceable document requiring the PRPs to conduct the RA in accordance with CERCLA cleanup standards. An enforceable unilateral administrative order that is being complied with may also be used to satisfy this criterion. 6 . The State has certified with a document, or a qualified State or Federal official has documented, that aub.gfcantial and continuous physical on-site remedial action has <<^ ^t the site. As noted in Section II, above, this criterion utilizes the same interpretation of the key elements of Section 116 (e) as outlined in OSWER's Directive 9355.0-24. The Region would confira that the RA commenced as defined in the OSWER directive referenced above. (As noted in the SARA legislative history, 11 [i]solated, preliminary removal or remedial action to set the groundwork for final cleanup which may not be commenced immediately do not satisfy the requirements of this provision". H.R. Rep. 253, 99th Cong., 1st Sess. 12-13 [19.85] [pt. 5].) IV. CONCLUSION The inclusion of State-lead RA starts is an important aspect of our strategy to meet the CERCLA Section 116 (e) mandate. I appreciate the efforts you have made and continue to make in ------- 9831.8 striving to meet this mandate. If you have any questions regarding this policy, please contact Johanna Hunter of the Office of Waste Programs Enforcement at FTS (202) 475-9809 or mail code OS-510. cc: Directors, Waste Management Division, Regions I, IV, V, VII, VIII Director, Emergency and Remedial Response Division, Region II Directors, Hazardous Waste Management Division, Regions III, VI Director, Toxic and Waste Management Division, Region IX 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 ------- |