I                  WASHINGTON, D.C. 20460
                            OCT 2 f
                                                          OFFICE OF
                                                 SOLID WASTE AND EMERGENCY flESPONSE
                                      OSWER DIRECTIVE  9831.8


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


     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.


     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."

       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.


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

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.

     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].)


     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

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