v>EPA United States Environmental Protection Agency Office of Solid Waste and Emergency Response DIRECTIVE NUMBER: 9375.1-04-H TITLE: STATE PARTICIPATION IN THE SUPERFUND PROGRAM, - Volume 1, Appendix H: Sample Articles for Superfund State Contracts October 20, 1986 October 20, 1986 OERR/HSCD/SRCB APPROVAL DATE: EFFECTIVE DATE: ORIGINATING OFFICE: O FINAL D DRAFT STATUS: REFERENCE (other documents): 9375.1-4 STATE PARTICIPATION IN THE SUPERFUND PROGRAM, Volume 1 OSWER OSWER OSWER VE DIRECTIVE DIRECTIVE Dl ------- United Slates Environmental Protection Agency ^ • _ Washington. DC 20460 Ob PA OSWER Directive Initiation Reauest 1 . Directive Number 9375.1-04-H 2. Originator Information Name of Contact Person Mail Code Office Deborah Swichkow WH-548-E OERR/HSCD/SRCB Telephone Number (202) 382 2453 3. Title STATE PARTICIPATION IN THE SUPERFUND PROGRAM, Volume 1, Appendix H: Sample Articles for Superfund State Contracts 4. Summary of Directive (Include brief statement of purpose) Assists Remedial Project Managers (RPS) and State Project Officers (SRO) in developing articlces for Superfund State Contracts s.Keywords Superfund, CERCLA, State participation, cooperative agreements, remedial project manager. State project officer, Superfund state contract 6a. Does this Directive Supersede Previous Directives)? |_J Yes |XJ No What directive (number, title) 9375.1-04, Same title, 2/84 b. Does It Supplement Previous Directives)? Q Yes Q No What Directive (number, title) 9375.1-04 State Participation in the Superfund Program, Volume 1 7.. Draft Level DA — Signed by AA/DAA LJ B — Signed by Office Director LJ C — For Review & Comment LJ In Development This Request Meets OSWER Directives System Format 8. Signature of Lead OfficeJ3irectives Cd6rdinator ^^^"^ .^^ t f m F. C'f-*i*~* — . Name and Title of Approving Official' Sam Morekas, Chief, State & Regional Coordination Branch Vf/fr Date 10/20/86 OS WER OS WER OS WER DIRECTIVE DIRECTIVE L ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 OCT 20 (986 WW OFFICE OF SOLID WASTE AND EMERGENCY RESFONSb MEMORANDUM SUBJECT: Addendum to the manual State Participation in the Superfund Program -- Appendix H, "Sample Articles for Superfund State Coniradts" FROM: Sam Morekas, Chief State and Regional Coordination Branch Hazardous Site Control Division TO: Mailing List The attached revised Appendix H is intended to provide assistance to Remedial Project Managers (RPMs) and State Project Officers (SPOs) in developing articles for Superfund State Contracts (SSCs). Examples of articles that have been included in SSCs to date are contained in this appendix. The version of Appendix H which you currently have should be discarded and be replaced with this attachment. Attachment ------- 9375.1-4-h APPENDIX H SAMPLE ARTICLES FOR SUPERFUND STATE CONTRACTS PURPOSE This appendix has been provided to assist Remedial Project Managers (RPMs) and State Project Officers (SPOs) in developing articles for Superfund State Contracts (SSCs). BACKGROUND •4 If EPA retains lead management responsibility for a response action, an SSC is used when the activity requires the State to provide cost sharing and/or other CERCLA..sec- tion 104(c)(3) assurances. The SSC is a legally binding agreement between EPA and the State that documents both parties' responsibilities for the response. Responsibilities under an SSC are documented in ar- ticles in the agreement. The RPM and the SPO should re- view each of the requirements identified here and should address them as appropriate in each SCC being negotiated. APPENDIX SUMMARY This appendix contains examples of articles for in- clusion in SCCs. Introductory remarks to each article provide background information to clarify EPA require- ments; sample articles follow, indicated by text indented from both margins. The order of articles in this appendix roughly parallels the order in which they would appear in an SSC itself. More than one article has been provided where different approaches have commonly been used to ad- dress SSC requirements in the past. Articles presented here are appropriate for both single-site SSCs and those that cover several sites and/or activities. In either case, these articles should be tailored to meet activity specific requirements, as appro- priate, and equivalent language may be used. The introduction to an article will mention Coopera- tive Agreements when requirements for State-lead agree- ments differ from those for Federal-lead projects. Provi- sions for Cooperative Agreement applications are found in Appendix F of this manual. H-l ------- 9375.1-4-h 1. Authority This Contract is entered into pursuant to sections 104(a)(l), (c)(2), and (c)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. 9601 et seq, and [cite relevant State law]. 2. Purpose of the Contract This Contract is an agreement between the U.S. Environmental Protection Agency ("EPA") and the State of [name of State] (the "State") to conduct [type of project, such as a remedial action] to be undertaken at [name of site] (the "site"). Attached hereto and incorporated herein as Appen- dix [ ] is a description of the site and the re- sponse actions taken to date in connection with the site. This Contract covers only those activi- ties described in-the Statement of Work (the "SOW") attached hereto and incorporated herein as Appendix [ ]. This Contract may be amended if the parties agree to undertake additional remedial activities beyond the scope of the SOW. 3. Parties to the Contract This Contract is between EPA and the [name of State agency entering into the Contract]. Upon signature of this Contract the State's [title of State signatory] certifies that the agency has legal authority to enter into the Contract on be- half of the State and to fulfill its terms. EPA has designated: [name of RPM] [address] [telephone number] to serve as Project Manager for this Contract [or Agreement]. The State has designated: [name of SPO] [address] [telephone number] to serve as the State Project Officer for this Contract. The Remedial Project Manager, the State Project Officer, and the Director of the [State agency] or his [her] designee have authority to make joint project decisions that do not alter the scope or cost of response actions taken pursuant to this Contract. H-2 ------- 9375.1-4-h 4. Negation oŁ Agency Relationship Nothing contained in this Contract shall be con- strued to create, either expressly or by implica- tion, the relationship of agency between EPA and the State. Any standards, procedures, or pro- tocols prescribed in this Contract to be followed by EPA or its contractors during the performance of its obligations under this Contract are for assurance of the quality of the final product of the actions contemplated by the Contract, and do not constitute a right to control the actions of EPA. EPA (including its employees, agents, and contractors) is not authorized to represent or act on behalf of the State in any matter relating to the subject matter of this Contract, and the State (including its employees, agents, and contractor^) is not authorized to represent or act on behalf of EPA in any matter relating to the subject matter of this Contract. 5. Duration of the Contract The Contract shall become effective upon execution by both parties and shall remain in effect until [date], or until completion of the activities described in the SOW and the assurances, whichever occurs later. The parties may agree to extend, by amendment, the duration of the Contract for the period necessary to implement any remedial activi- ties that the parties agree to undertake beyond those defined in the SOW. This Contract may be terminated before the activities described in the SOW are completed if the parties jointly agree in writing. 6. EPA Responsibilities a. EPA will consult with [State agency] on mat- ters relating to the implementation of work in the SOW and any amendments thereto. b. EPA or its agent shall arrange for the ser- vices of contractors to do the work described in the SOW and shall make all payments to the contractors for that work. EPA, at its own cost and expense, shall furnish the necessary personnel, materials, services, and facili- ties to perform its responsibilities under this Contract. If the remedial action is performed by the U.S. Army Corps of Engineers, the costs associated with per- sonnel, materials, services, and facilities H-3 ------- 9375.1-4-h necessary to perform its services shall be shared with the State. EPA will consult with the State on matters relating to the imple- mentation of work in the SOW. c. In conducting the work described in the SOW for this Contract, EPA and its representives will comply, to the maximum extent possible, with all applicable guidance, including the manual Superfund Remedial Design and Remedial Action Guidance, published by OERR in June 1986, and the approved Record of Decision (ROD) for this site, dated [ ]. d. EPA will provide [State agency] with an op- portunity to review the completed bid packages [number] days before they are pub^ lished for bids. If [State agency] does,not respond to EPA within this time frame, pub- lication will proceed. This provision also will apply to any and all amendments to the bid package. e. EPA will inform [State agency] of any changes in the remedy that are within the scope ap- proved in the ROD for this site. Approval for any changes in the remedy beyond that approved in the ROD will require amending the ROD, and this Contract may be amended ac- cordingly. 7. Duties oŁ the Remedial Project Manager and State Project Officer The EPA Remedial Project Manager and the State Project Officer have joint authority to make pro- ject decisions that do not enlarge the scope of the response actions at (any of) the site(s) or the cost(s) of the project(s) covered by the Con- tract. In addition, the EPA Project Manager will report modifications to schedules or activities to the State Project Officer. 8. Coordination of Parties Participating in Response The following agencies and/or entities will par- ticipate in the [activity] at [name of site] con- ducted pursuant to this Contract [list agencies]. EPA will oversee the participation of each in close coordination with the State Project Officer. EPA will inform the State Project Officer in the event that problems arise and/or the scope of the participation of any one agency H-4 ------- 9375.1-4-h significantly increases or decreases from that described here. 9. Third Parties This Contract is intended to benefit only the State and EPA. It extends no benefit or right to any third party not a signatory to this Con- tract. In addition, EPA does not assume any liability to third parties with respect to losses due to bodily injury or property damages that exceed the limitations contained in the pro- visions of 28 U.S.C. sections 1346(b), 2671-2680. To the extent permitted by State law, the State does not assume liability to any third parties with respect to losses due to bodily in- jury or property damage. 10. Responsible Party Activities If EPA reaches an agreement with any responsible parties to undertake all or part of the remedial activities described in the Statement of Work (SOW) for this Contract, the Contract shall be amended to revise the SOW accordingly. 11. Emergency Response Action During a Remedial Project Any emergency response activities conducted pur- suant to the National Contingency Plan, 40 CFR section 300.65, shall not be restricted by the terms of this Contract. EPA, in consultation with the State, may suspend or modify the re- medial activities defined in the SOW for this Contract during and/or subsequent to the emer- gency response actions. The State's share of responsibility for conducting response activities also may be revised and the State's financial obligation may be adjusted. 12. Fund Balancing CERCLA section 104(c)(4) requires that CERCLA-funded actions provide a cost-effective response, balancing the need for protection of public health, welfare, and the environment against the availability of amounts from the fund to respond at .other sites. If the State requests additional fund-financed response at the site, EPA will evaluate the request against available fund monies and whether it is consistent with the NCP. This Contract does not commit EPA to future funding for response actions at the site. H-5 ------- 9375.1-4-h 13. The National Contingency Plan (NCP) All activities conducted under this Contract shall be consistent with the National Contingency Plan (NCP), 40 CFR Part 300. 14. State Cost Sharing Guidance on calculating RA costs can be found in the document Superfund Remedial Design and Remedial Action Guidance, OERR, June 1986. Cash Payments - Privately Owned Sites An example of an acceptable cost-sharing as- surance article for remedial action at a privately owned site is provided below. 1. The State will pay 10 percent of the costs of the remedial action defined in the SOW, including change orders and claims agreed to by EPA, as provided below. The current estimate of the total cost is nine hundred seventy-five thousand dollars ($975,000). The State's share is ninety-seven thousand five hundred dollars ($97,500). The State shall reimburse EPA its share ($97,500) in accordance with the payment schedule below. 2. Payment will be made in the following manner: Within 30 days after signature of this Contract, the State shall submit to EPA its first payment for one-half of the State's share for the site activities: forty-eight thousand seven hundred fifty dollars ($48,750). At intervals of 90 days thereafter, the State shall provide two payments of twenty thousand dollars ($20,000) each. At the completion of the work defined in the SOW, EPA shall provide the State with copies of all documents pertaining to financial transactions made under this Contract. This shall include costs of contractor(s) retained by EPA to perform the work in the SOW, in- cluding change orders and claims; costs incurred by the U.S. Army Corps of Engineers for their construction management; expenditures of the con- H-6 ------- 9375.1-4-h struction contingency fund; and all other costs related to the response performed pursuant to this Contract. It also will include calculation of the total cost share paid by the State, and use of State CERCLA section 104(c)(3) credit. Final reconciliation of costs will be made at that time. Any ad- ditional payment by the State to EPA, up to a total of $97,500, or any refund by EPA to the State, will be made within 90 days after this reconcili- ation. This Contract may be amended to arrange for any additional State pay- ment in excess of $97,500. 3. All State payments shall be made payable to, EPA and sent to: Environmental Protection Agency Superfund P.O. Box 371003M Pittsburgh, PA 15251 Attn: Collection Officer for Superfund .4. EPA will use 10 percent of the total cost of the project, ninety-seven thousand five hun- dred dollars ($97,500), as a construction contingency fund to cover change orders for the project. The EPA Project Manager may approve expenditures from this fund. EPA will inform the State when total contingency fund expenditures exceed 75 percent of the fund. This Contract may be amended to add more money to the project contingency fund, should it be found necessary to do so. Cash Payments - Publicly Owned Site The following article may be used for publicly owned sites. This may be affected by CERCLA reauthorization. 1. The State will pay 50 percent of the costs of the remedial action defined in the SOW for this project, attached hereto and in- corporated herein as Appendix [ ]. The current estimate of the cost is one million, two hundred fifty thousand dollars ($1,250,000). The State's share of the remedial action costs is six hundred twenty-five thousand dollars ($625,000). H-7 ------- 9375.1-4-h 2. The State also will pay 50 percent of the costs of all removal actions and remedial planning that have been implemented at the site. A removal action costing fifty-five thousand dollars ($55,000) has been under- taken at this site. The total cost of remedial planning activities for this site has been four hundred ninety-five thousand dollars ($495,000). The State's cost share for the past response at the site is two hundred seventy-five thousand dollars ($275,000). 3. The State's total share for 50 percent of all site response actions is nine hundred thousand dollars ($900,000). Payment will be made in the following manner: [terms must be negotiated and recorded as in the article above; payments must be sent to the EPA address shown above]. [The Contract then will include both a State payment sche- dule, or provisions for reduction of CERCLA credit, and a discussion of the construction contingency fund]. Advance Match If the State previously provided advance match funds, it can use this to cover its cost share during remedial action. The SSC article concerning cost sharing should specify the State's past provision of advance match, as shown below. The State has paid $[ ] as advance match toward the costs associated with carrying out the work defined in the SOW for this Contract. EPA will count the State's cash contribution toward the State's ultimate cost share at the site described herein. The State, through an amend- ment to this Contract or in an Cooperative Agree- ment application, may request reimbursement of any of its funds expended under this Contract that are not required to meet the State's ul- timate cost-sharing obligation at the site. Reimbursement by EPA is subject to the avail- ability of appropriated funds. 15. State Credits for 1978-1980 Window Period CERCLA sections 104(c)(3) and 104(d)(l) require that the State pay, or assure payment of, 10 per- cent of the costs of the remedial action activi- ties to be undertaken pursuant to this Contract. H-8 ------- 9375.1-4-h CERCLA section 104(c)(3)(C) provides that EPA will grant the State a credit against the share of the costs for which it is responsible under this section for any documented direct out-of-- pocket non-Federal funds expended or obligated by the State or a political subdivision thereof between January 1, 1978, and December 11, 1980, for cost-eligible response actions. The State has submitted a credit claim for $20,000 [amount of credit claimed pursuant to instructions con- tained in Appendix C of this manual] for response actions undertaken at the site between January 1, 1978, and December 11, 1980. EPA accepts this credit amount at face value pending final verifi- cation of the eligibility and allowability of the State's credit costs. At EPA's request, the State shall make supporting documentation avail-, able for audit. Based on final verification of these costs, the amount the State will have to provide as its cost share for the remedial action activities in this Contract will be adjusted to satisfy the State's cost-sharing responsi- bilities. The State will not be reimbursed for any credit remaining at the conclusion of fund- -financed response actions at this site, nor may the State apply the remaining credit to the cost of remedial activities at another site. When the State has a verified credit for the 1978 to 1980 window period, the following sample article is appro- priate for a privately owned site. CERCLA sections 104(c)(3) and 104(d)(l) require that the State pay, or assure payment of, 10 per- cent of the costs of the remedial action activi- ties to be undertaken pursuant to this Contract. CERCLA section 104(c)(3) provides that EPA will grant the State a credit against the share of the costs for which it is responsible under this sec- tion for any documented direct out-of-pocket non-Federal funds expended or obligated by the State or a political subdivision thereof between January 1, 1978, and December 11, 1980, for cost-eligible response actions. The State has a credit of $20,000 [amount of credit] for expen- diture of funds for response actions at the site between January 1, 1978, and December 11, 1980, verified by EPA on November 15, 1984 [date of the Regional letter to State making a final credit determination based on an audit report]. This credit will be applied toward the State's cost-sharing obligation for remedial action activities conducted under this Contract. The H-9 ------- 9375.1-4-h State will not be reimbursed for any credit remaining at the conclusion of fund-financed response actions at this site, nor may the State apply the remaining credit to the cost of remedial activities at another site. 16. Operation and Maintenance After remedial design is completed, EPA will sub- mit a draft operation and maintenance (O&M) plan to the State for comment. At a minimum, the plan shall include: a description of, and a contin- gency plan for, potential abnormal occurrences; remedy performance standards; staffing plans; equipment and materials requirements; and moni- toring requirements to demonstrate the continued effectiveness of the remedial action. The State. agrees to comment on the draft plan within 30 days. The State further agrees to submit an O&M financing plan prior to completion of the remedial action arid State assumption of O&M responsibility. Pursuant to CERCLA section 104(c)(3)(A), the State shall provide all future operation and maintenance (O&M) of the remedial actions provided under this Contract for the expected life of such actions. The State agrees to implement the final O&M plan. The State understands that, if at the conclusion of the remedial action it intends to seek financial assistance for implementation of the O&M plan to ensure that the remedy is functional and opera- tional, it must submit a Cooperative Agreement application to EPA. The State's application shall be based on the O&M plan prepared for this site and shall specify the State agency respon- sible for O&M; demonstrate the source of O&M funding; designate personnel responsible for O&M; and contain a schedule for O&M activities. Requirements for O&M plans can be found in the text of this manual. 17. Off-Site Treatment, Storage, or Disposal The State and EPA have determined that off-site treatment, storage, or disposal of hazardous sub- stances is required for activities funded by this Contract. Pursuant to CERCLA section 104(c)(3)(B), the State is required to assure the availability of a hazardous waste facility. EPA or its representative, in its invitation for bids for the remedial action, will require respondents to provide adequate capacity for waste disposal H-10 ------- 9375.1-4-h at a facility (or facilities) that meets all aplicable requirements of the Resource Conserva- tion and Recovery Act (RCRA) and that is consis- tent with EPA's off-site disposal policy. A RCRA compliance inspection shall be completed by EPA for the facility within six (6) months prior to the receipt at the designated facility of wastes from the site. Prior to award of the contract, the EPA Regional office in which the facility is located will review the results of the compliance inspection and other available information to determine if the facility meets the criteria set forth by EPA. If requested by EPA, the State shall provide a hazardous substance disposal facility that meets the requirements of RCRA Sub- title C and is acceptable to EPA. 18. Management Assistance The State has requested management assistance funds from EPA to'perform the following tasks during the response action conducted pursuant to this Contract [identify tasks]. EPA has awarded these funds via Cooperative Agreement [number] dated [ ]. In performing its management assistance tasks, the State shall coordinate closely with the EPA Project Manager for this Contract. The State understands that EPA funding for management assistance does not change the contractual relationship between EPA [or the U.S. Army Corps of Engineers (COE)] and the remedial response contractors. The State shall not direct the work of EPA [or the COE] and/or its response contractors and subcontractors. 19. Site Access and Permits The State may have to seek permits or approvals before response can begin (for example, compliance with local ordinances on construction). The State is responsible for determining which requirements apply and for obtaining necessary permits or approvals before work is initiated. The RPM should provide assistance to ensure that the pro- ject proceeds smoothly. The Appendix to the Preamble of the NCP "CERCLA Compliance with Other Environmental Statutes" defines when environmental permits are required. These requirements may be affected by changes in CERCLA during reauthorization. H-ll ------- 9375.1-4-h Access to the Site and Permits The State agrees to satisfy all Federal, State, and local requirements for permits and approvals. The State, to the extent of its legal authority, shall secure access to the site and adjacent properties, as well as all rights-of-way and easements necessary to complete the response actions undertaken pursuant to this Contract. As requested by EPA, the State also shall obtain or assist EPA in obtaining any permits that are necessary to complete satisfactorily the activities described in the SOW. State Access During Remedial Response Representatives of the State shall have access to the site to review work in pro- gress and shall comply with the site safety plan. EPA shall not be responsible for any harm to any State representative or other person arising out of, or resulting from, any act or omission by the State or its representative(s) in the course of an on-site visit. 20. Site Safety Plan EPA will be responsible for the development and implementation of a site safety plan for each site where remedial response is contemplated by this Contract. This plan will be consistent with the requirements of the National Contingency Plan and applicable Federal and State safety standards and guidance. When the SSC covers activities at several sites, the following language may be used. EPA or its agent will undertake health and safety activities at [number] sites under this Con- tract. Each site plan will be consistent with the requirements of the National Contingency Plan and applicable Federal and State safety standards and guidance. A model site safety plan format is contained in Appendix L. 21. Community Relations The State and EPA agree that community relations activities at the site will be conducted in ac- H-12 ------- 9375.1-4-h cordance with the approved community relations plan. In conducting community relations activi- ties pursuant to this Contract, EPA and the State agree to comply with all relevant EPA policy and guidance on community relations programs and pro- cedures . When the SSC covers activities at several sites, the following is appropriate. EPA will conduct community relations activities at [number] of sites pursuant to this Contract. EPA will develop site-specific community rela- tions plans and will submit these documents to the State for review. In developing and imple- menting these community relations plans, EPA and the State will comply with all relevant EPA policy and guidance on community relations pro- grams and procedures. 22. Access to Files and Confidentiality of Information There are necessary limitations on the release of information from site files so that EPA can maintain its enforcement position both in court and during negotiations with potentially responsible parties. State laws, how- ever, may not enable the State to hold site information confidential. The RPM should consult regularly with the negotiating or litigating team to avoid the release of information that may be detrimental to the enforcement process. The SPO similarly should consult with the State Attorney General's Office prior to releasing any informa- tion that is in its possession. At EPA's request and to the extent allowed by State law, the State shall make available to EPA any infor- mation in its possession concerning the site. EPA will make available to the State any information in its possession concerning the work being conducted pursuant to this Contract if the State submits a request for such information. If the State provides any information to EPA under a claim of confi- dentiality, this information will be treated in ac- cordance with 40 CFR Part 2 if the State has given EPA notice of a claim of confidentiality. EPA will not disclose information submitted under a claim of con- fidentiality unless EPA is required to do so by Federal law and has given the State advance notice of EPA's intent to release that information. Absent notice of such claim, EPA may make said information available to the public without further notice. H-13 ------- 9375.1-4-h 23. Submission oŁ Documents EPA will submit all final plans, reports, and/or modifications to the SOW which affect the cost agreed to by the State, to the State Project Officer for review prior to issuance or implemen- tation. 24. Reporting Requirements EPA agrees to submit progress reports to the State Project Officer, detailing technical pro- gress of the project, changes to the SOW, and other major changes to the project. The EPA Pro- ject Manager and the State Project Officer will negotiate a schedule for submittal of the pro- gress reports. 25. Design Reviews EPA will submit the design for the remedy at the [name] site to the State for review at various points in its development depending upon the requirements of the site and complexity of the design. These may include: (1) preliminary design (30% complete); (2) intermediate design (60% complete); (3) pre-final (95% complete); and (4) final (100% complete). EPA will accommodate State comments to the extent possible. Should EPA determine that major design changes are occurring that would significantly alter the scope of the remedy from that approved in the Record of Decision, the EPA Project Manager will notify the State in writing. 26. Change Order and Claims Management EPA or its agent(s) will conduct technical and administrative reviews of any contractor change order requests or claims. These reviews will examine the technical basis for the change orders or claims and will determine whether they are merited. EPA will inform the State when total project change orders exceed 75 percent of the construction contingency fund. EPA also will notify the State if any necessary change orders will alter the scope of the remedy as approved in the Record of Decision (ROD) for this site, dated [ ]. The ROD and this Contract will be amended accordingly. H-14 ------- 9375.1-4-h 27. Pre-final Inspections The State may participate in the pre-final con- struction conference, to be held upon preliminary project completion, to discuss remedy operation and maintenance (O&M) requirements. EPA will provide the State [number] days advance notice of, and an agenda for, this meeting. The State also shall participate in the pre-final inspec- tion of the remedy to determine the project's completeness. The EPA Project Manager will pro- vide the pre-final inspection report to the State Project Officer for review. This report will outline outstanding contruction items, actions required to resolve them, and anticipated com- pletion dates for these actions. The State shall return any comments to the EPA Project Manager within [number] days. 28. Final Inspection Following completion of remedial action, the State, EPA, and/or the remedial contractor will jointly inspect the project to confirm that all outstanding construction items are resolved. The EPA Project Manager shall be responsible for sub- mitting the final inspection report describing any outstanding items and their resolutions to the State Project Officer. 29. Remedy Shakedown Period When the RA includes construction of a treatment sys- tem, the final startup and shakedown period will be con- sidered part of the RA. Determination of remedy effec- tiveness for other types of RAs will be addressed on a case-by-case basis. This may be affected by changes in CERCLA during reauthorization. The remedy implemented pursuant to this Contract includes construction of a treatment system. A facility shakedown period of [number] months is necessary to demonstrate the effectiveness of the remedy. This period will be considered part of the remedial action. The shakedown period includes oversight of system operational testing, conduct of operator training, adjustment of the O&M procedures manual, and development of accurate O&M cost estimates, as outlined in the SOW for this Contract. The State shall coordinate with the EPA Project Manager and the remedial contractor representative in the conduct of these activities. H-15 ------- 9375. 1-4-h 30. Remedial Action Report EPA will prepare a remedial action report for each site at the completion of the remedial action performed under this Contract. This report shall be submitted to the State Project Officer for review within sixty (60) days after the joint EPA/State inspection and acceptance of the remedy by the State. This report will: describe outstanding construction items from the pre-final inspection and indicate that items were resolved; summarize work defined in the SOW for this Contract and certify that this work was performed; explain any modifications to work in the SOW and why these were necessary for the project; certify that the remedy is functional and operational; and supply copies of documen- ., taton necessary to support deletion of the site from the NPL. 31. Acceptance of the'Remedy EPA acceptance of the remedy will be provided to the State with the final remedial action report. State review and approval of the remedial action report will signify State acceptance of the remedy. 32. Transfer of Guarantees and Warrantees Upon State acceptance of the remedy and assumption of responsibility for O&M, all guarantees and warranties associated with the remedy will be transferred to the State's possession. EPA will provide for such trans- fer in all agreements for remedial action negotiated with response contractors. 33. NPL Deletion At the successful completion of the remedial action at the [name] site, performed pursuant to this Contract, the State may request EPA to delete the site from the National Priorities List (NPL). The State agrees to participate in the NPL deletion process by commenting on the proposed site deletion and by reviewing the site NPL deletion package. 34. Enforcement and Cost Recovery Notice of Intent To Settle or Initiate Proceedings EPA and the State agree that, with respect to the claims which each may be entitled to assert against H-16 ------- 9375.1-4-h any third persons (herein referred to as the "respon- sible party," whether one or more) for reimbursement of any services, materials, monies, or other thing of value expended by EPA or the State for response activities at the site(s) described in this Contract, neither EPA nor the State will enter into a settlement with or initiate a judicial or administrative pro- ceeding against a responsible party for the recovery of such sums except after having given notice in writing to the other party to this Contract not less than thirty (30) days in advance of the date of the proposed settlement or commencement of the proposed judicial or administrative proceedings. Neither party to this Contract shall attempt to negotiate for nor collect reimbursement of any response costs on behalf of the other party, and authority to do so is hereby expressly negated and denied. Cooperation and Coordination in Cost Recovery Efforts EPA and the State, agree that they will cooperate i-n and coordinate efforts to recover their respective costs of response actions taken at the site(s) des- cribed herein, including the negotiation of settlement and the filing and management of any judicial actions against potentially responsible parties. This shall include coordination in the use of evidence and witnesses available to each in the preparation and presentation of any cost recovery action, excepting any documents or information which may be confidential under the provisions of any applicable State or Federal law or regulation. Judicial Action EPA and the State agree that any judicial action taken by either party pursuant to CERCLA against a poten- tially responsible party for recovery of any sums expended in response actions at the site(s) described herein shall be filed in the United States District Court for the judicial district in which the site(s) described in this Contract is located, or in such other judicial district of the United States District Courts as may be authorized by section 113 of CERCLA and agreed to in writing by the parties to this Con- tract . Litigation Under CERCLA Section 106 and 107 Signature of this Contract does not constitute a waiver of EPA's right to bring an action against any person or persons for liability under section 106 or H-17 ------- 9375.1-4-h 107 of the Comprehensive Environmental Response, Com- pensation, and Liability Act (CERCLA), or any other statutory provision or common law. 35. Failure To Comply with Terms of the Contract If the State fails to comply with the terms of this Contract, EPA may proceed under the provisions of sec- tion 104(d)(2) of CERCLA. If EPA fails to comply with any requirements of this Contract, the State, after providing sixty (60) days notice, may seek in the ap- propriate court of competent jurisdiction to enforce the Contract. 36. Amendments to the Contract Any change in this Contract must be agreed to, fn writing, by both parties hereto, except as provided elsewhere in the Contract. 37. Contract Closeout This Contract will remain in effect until a final cost reconciliation is. made to ensure that both the State and EPA have contributed their full cost shares for the project(s) conducted pursuant to it. This includes: satisfactory completion ofxthe remedial activities described in the SOW; the final accounting of all project costs, in- cluding all change orders and outstanding con- tractor claims; EPA receipt of documentation of all costs incurred; and receipt of all State cost share payments made under this Contract. ^rt^l P. r-'toction 2404 PM-311-A ~'. i: Street, S.W. H-18 \shington, DC 20460 ------- |